Griese v. State

820 S.W.2d 389, 1991 Tex. App. LEXIS 2897, 1991 WL 249383
CourtCourt of Appeals of Texas
DecidedNovember 27, 1991
DocketNo. B14-90-01064-CR
StatusPublished
Cited by6 cases

This text of 820 S.W.2d 389 (Griese v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Griese v. State, 820 S.W.2d 389, 1991 Tex. App. LEXIS 2897, 1991 WL 249383 (Tex. Ct. App. 1991).

Opinion

OPINION

PAUL PRESSLER, Justice.

Appellant was indicted on two counts of promotion of gambling, TexPenal Code Ann. § 47.03 (Vernon 1974), and one count of keeping a gambling place TexPenal Code Ann. § 47.04 (Vernon 1974). He pled guilty, and the trial court assessed punishment at five years’ probation and a $750 fine. We affirm.

Vice Officer G.D. Todd of the Houston Police Department received information from his supervising officer, Sgt. H.S. Plas[390]*390ter, concerning an illegal bookmaking operation that was allegedly being conducted by appellant. Sgt. Plaster was contacted by a confidential informant who told him that appellant was taking bets on basketball games. The informant told Plaster that for several weeks he had telephoned appellant and obtained current betting line information on college and professional basketball games and placed bets on those games. Todd verified the address and telephone numbers given by the informant as that of appellant. One of the phone numbers was assigned to a residence and the other to a business. Todd established surveillance on appellant’s business and observed a red Chevrolet Corvette in the attached parking garage, similar to the one described by the informant as belonging to appellant. A check with the Texas Department of Public Safety/Motor Vehicle Division showed the car to be registered in appellant’s name.

Between March 17 and May 13, the informant contacted Plaster on at least fourteen different occasions and told him that he had phoned and placed bets with appellant. Each of these phone calls was made at a time when most bookmakers use to accept wagers on such games. Todd learned that the phone number assigned to appellant’s residence was forwarded to a portable cellular phone not billed to appellant. Between January and March of 1990, over 990 calls were billed to this number. The majority of them lasted from one to three minutes. Most of the outgoing calls from the cellular phone were made to a phone installed at appellant’s residence and to sports service numbers that provided betting line information and scores for sporting events. Based on this information, Todd obtained a Search and Arrest Warrant. On May 14, appellant was arrested in the parking garage attached to his business. At that time, the officers searched a briefcase belonging to him and found betting slips, line sheets, recap sheets, and other gambling paraphernalia. Appellant filed a motion to suppress the seized evidence. The trial court denied the motion after a hearing while noting that appellant was reserving his right to appeal. Appellant pled guilty, punishment was assessed, and this appeal followed.

In his sole point of error, appellant contends that his conviction was based upon illegally seized evidence because the affidavit supporting the search warrant failed to state facts sufficient to constitute probable cause. He argues that the affidavit did not comply with the requirements of U.S. ConstAmend. IV, Tex. Const, art. I, § 9, Tex.Code CRIM.PROC.Ann. art. 1.06 (Vernon 1974), and Tex.Code CRIM.PROC.Ann. art. 38.23 (Vernon Supp.1991). Since the exclusionary provision of Tex.Code CRIM.PROC. Ann. art. 38.23 (Vernon Supp.1991) is triggered only by evidence obtained in violation of the constitution and laws of the United States or of the State of Texas, whether it was will be determinative of this appeal.

In Eisenhauer v. State, 754 S.W.2d 159 (Tex.Crim.App.1988), cert, denied, 488 U.S. 848, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988), the Texas Court of Criminal Appeals gave the standard for determining probable cause. It held that Article I, Section 9 of the Texas Constitution and the Fourth Amendment of the Federal Constitution are “in all material aspects the same.” Id. at 162. Thus, the “totality of the circumstances” test, as espoused by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 rehearing denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983), is the proper analysis for both state and federal constitutional challenges. Under this analysis,

the task of the issuing magistrate is to make a practical common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place.... The magistrate should not be bound by standards such as proof beyond a reasonable doubt or by a preponderance of the evidence. The magistrate’s sole concern should be probability-

Johnson v. State, 803 S.W.2d 272, 288 (Tex.Crim.App.1990).

[391]*391In Gates, the Court moved away from a strict application of the two-pronged analysis of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). While recognizing that an informant’s veracity and reliability are very important considerations, the Court stated that the magistrate should not give “undue attention” to these “isolated issues that cannot sensibly be divorced from the other facts” presented to him. Gates, 462 U.S. at 235, 103 S.Ct. at 2330. In essence, Gates permits a balanced assessment of the relative weight of all the various indicia of reliability concerning an informant’s tips. Id. at 234, 103 S.Ct. at 2330.

Appellant argues that the affidavit in the instant case fails under the “totality of the circumstances” analysis in that it does not set forth the basis of the informant’s knowledge. It lacks detail concerning specific bets the informant placed with appellant, how much he bet, whether he won or lost, and how payments were made on wins or losses. Appellant further complains that the officers never attempted to record any of the phone calls between appellant and the informant, nor did they claim to have seen them together, either at appellant’s place of business or anywhere.

An appellate court’s review of the sufficiency of an affidavit is not de novo. The magistrate’s determination of probable cause should be given great deference by the reviewing court. Johnson v. State, 803 S.W.2d at 289, citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331. “The traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a ‘substantial basis for ... concludpng]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Id. at 236, 103 S.Ct. at 2331 (citing Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), overruled on other grounds, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)). The affidavit here provides, in pertinent part, that:

Sgt. Plaster advised your affiant that this informant had stated ...

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Bluebook (online)
820 S.W.2d 389, 1991 Tex. App. LEXIS 2897, 1991 WL 249383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griese-v-state-texapp-1991.