Kelly v. State

529 S.W.3d 504
CourtCourt of Appeals of Texas
DecidedAugust 31, 2017
DocketNo. 06-16-00185-CR
StatusPublished
Cited by10 cases

This text of 529 S.W.3d 504 (Kelly 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
Kelly v. State, 529 S.W.3d 504 (Tex. Ct. App. 2017).

Opinion

OPINION

Opinion by

Justice Burgess

On- February 22, 2016, .police officers from the Longview Police Department executed a search warrant at a duplex leased to Marquis DeMichael Kelly located at 209 Mitchell Street in .Longview, Gregg County, Texas. Kelly and Arthur Perry were seated in recliners at. the duplex when the police entered the residence. The officers located a large amount of marihuana, cocaine, and Ecstasy1 at the duplex, much of it. on a table between the two recliners. The officers also found two pistols, each within reach of the two men. Kelly was subsequently convicted of possession with intent to deliver four or more, but less than 200, grains of a. Penalty Group 1 controlled substance, possession with intent to deliver four or more, but less than 400, grams of a Penalty Group 2 controlled substance, and one count of possession of a [508]*508firearm by a felon. For the reasons set forth below, we affirm the trial court’s judgment.

1. Issues Presented

Kelly raises four points of error on appeal. First, he challenges the sufficiency of the evidence supporting his convictions for possession of controlled substances with the intent to deliver. Second, he challenges the trial court’s ruling that the chain of custody was sufficient to admit the drug evidence against him. Third, he argues that the trial court erred in overruling his objection to the in-court identification of him by a witness. Finally, he argues that the trial court erred in denying his motion to suppress evidence. We will address Kelly’s points of error in reverse order.

II. The Trial Court Did Not Err In Denying Kelly’s Motion to Suppress Evidence

A. Standard of Review

A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). In performing this review, we apply “a bifurcated standard of review.” Myrick v. State, 412 S.W.3d 60, 63 (Tex. App.—Texarkana 2013, no pet.) “[A]s a general rule, the appellate courts ... afford almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor.” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We “afford the same amount of deference to trial courts’ rulings on ‘application of law to fact questions,’[2] also known as ‘mixed questions of law and fact,’[3] if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.” Id. We conduct a de novo review of the trial court’s decisions applying applicable laws. See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

When a motion to suppress is based on an argument that the search warrant’s supporting affidavit is deficient,

a reviewing court may look only to the four corners of the supporting affidavit, [but] the reviewing court should view the magistrate’s decision to issue the warrant with great deference. After reviewing the supporting affidavit in “a commonsensical and realistic manner,” a reviewing court must uphold the magistrate’s decision so long as the magistrate had a substantial basis for concluding that probable cause existed.

Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012) (footnotes omitted) (quoting State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011)).

Although this review does not mean the reviewing court should be a “rubber stamp,” “the magistrate’s decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.”

Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (quoting W. LaFave, Search and Seizure: A Treatise on the Court Amendment § 11.7(c) at 452 (4th ed. 2004 & Supp. 2009-2010)).

B. Analysis

The basis of Kelly’s motion to suppress, both to the trial court and on appeal, was that the search warrant was stale. Kelly bases his argument on two [509]*509statements from the supporting affidavit of Longview Police Officer Alejandro Castillo. In his affidavit, Castillo testified that “[wjithin 72 hours of the date of this affidavit [February 22, 2016], [Castillo] received information from a cooperating individual [Cl]” who had observed Kelly or his co-defendant, Thompson, in possession of what the Cl believed was cocaine “within the past 72 hours before giving [Castillo] this information....” Kelly argues that under a plain reading of the search warrant affidavit, the Cl observed the information within seventy-two hours before giving it to Castillo and that Castillo obtained the affidavit within seventy-two hours after receiving the Cl’s information. Thus, Kelly concludes that the warrant was stale because it was based on information possibly obtained 144 hours before the warrant was executed.4

Yet, even if we assume that the information supporting the warrant was obtained 144 hours before the warrant was executed, mere passage of time is not the only factor we consider in deciding whether a warrant is stale. As the Court of Criminal Appeals has stated, “The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still available and in the same place is a function, not just of the watch or the calendar, but of the particular variables in the case.” Crider v. State, 352 S.W.3d 704, 707-08 (Tex. Crim. App. 2011). Thus, in evaluating whether a warrant for the search and seizure of drugs is stale, we also consider

(1) the type of crime[—]shorLterm intoxication versus long-term criminal enterprises or conspiracyt—](2) the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman—](3) the item to be seized— “perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse)[—]and (4) the place to be searched—a “mere criminal forum of convenience or secure operational base.”

Id. at 708.

With respect to the first factor, although this was a drug crime, the manner in which the drug offense occurred suggested a continuing criminal enterprise rather than a one-time offense. The affidavit reveals that when the Cl witnessed cocaine at the duplex, Kelly told him that he “had more cocaine available at the suspected place, implying that additional deliveries of the illegal substance [were] probable.” The affidavit also states that the “Cl advised Affiant that he/she ha[d] observed ... Kelly ... in possession of cocaine and observed the sale of it to people.” Also, the affidavit states, “Affiant has learned of two previous arrests wherein [Kelly] was charged with a drug offense.” Finally, the affidavit states,

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529 S.W.3d 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-texapp-2017.