Robby Lee Jamison v. State

• Court: Court of Appeals of Texas
• Decided: February 14, 2013
• Docket: 02-11-00331-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00331-CR

Robby Lee Jamison § From the 371st District Court

§ of Tarrant County (1225740D)

v. § February 14, 2013

§ Opinion by Justice Meier

The State of Texas § (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgments. It is ordered that the judgments

of the trial court are affirmed.

SECOND DISTRICT COURT OF APPEALS

By_________________________________ Justice Bill Meier COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

ROBBY LEE JAMISON APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

I. INTRODUCTION

The State indicted Appellant Robby Lee Jamison for the offense of

possession of a controlled substance, namely cocaine of four grams or more, but

less than two hundred grams, with the intent to deliver and for the offense of

possession of a controlled substance, namely cocaine of four grams or more, but

less than two hundred grams. Jamison moved to suppress evidence seized from 1 See Tex. R. App. P. 47.4.

2 his “person and from a secondary location where [he] had an expectation of

privacy” on the grounds that his rights under the Fourth Amendment to the United

States Constitution; article 1, section 9 of the Texas constitution; and article

18.01 of the Texas Code of Criminal Procedure were violated. The trial court

denied the motion, and after a bench trial, the trial court found Jamison guilty of

both counts. Jamison brings three points on appeal. Jamison argues that the

trial court erred by denying his motion to suppress because (1) the police entered

and searched his residence pursuant to an invalid warrant and (2) the police

illegally detained him and transported him from his vehicle to his home during the

execution of the warrant. In his third point, Jamison also argues that the

evidence is insufficient to support his convictions. We will affirm.

II. BACKGROUND

On September 23, 2010, a magistrate found that probable cause existed to

support the issuance of a search warrant for a residence located at 7312 Madeira

Drive, Fort Worth, Texas. The magistrate based his probable-cause

determination on the affidavit of Fort Worth Police Department Officer Jonas

Ceja. Ceja’s affidavit recited that he had met with a “creditable, reliable informant

(CI)”2 who informed him that “they” could purchase crack cocaine from the

2 The affidavit does recite “creditable” instead of “credible.” At the suppression hearing, among numerous hypertechnical attacks levied against the affidavit, Jamison argued that Ceja failed to recite that his confidential informant was “credible.” Ceja responded that he had. Jamison argued, “No, you said creditable. Do you know what creditable means? C-R-E-D-I-T-A-B-L-E? Do you know what that means?” Jamison also attacked other misspellings in the

3 Madeira Drive residence.3 The CI informed Ceja that a “‘Robbie Jamison’ . . . a

black male approximately 30 to 32 years of age, heavy set weighing 230 to 250

pounds and being 6’00” to 6’2” tall” lived at the residence with a female named

“Ashley” and that Jamison was the resident who sold the crack cocaine.

Ceja averred that after learning this information, he conducted two

controlled buys from the Madeira Drive residence using the CI. Ceja stated that

on both controlled buys, he searched the CI prior to and after the buys to ensure

“no evidence was withheld.” Ceja stated that presumptive tests indicated the

substances purchased were cocaine. Ceja further stated that the CI had said

that a “substantial” amount of cocaine existed in the Madeira Drive residence.

Ceja also averred that he had used “police records” to learn that a “Robby Lee

Jamison” and an “Ashley Curry” were associated with the Madeira Drive

residence. Ceja also said that Jamison’s driver license information showed

Jamison to be a black male, 5’11” tall, weighing 236 pounds. Using police

affidavit, venturing that misspellings like “by” instead of “buy,” and “whey” instead of “when” somehow destroyed the trustworthiness of the affidavit as a whole. The trial court’s ruling indicates that, like the magistrate who issued the warrant, it was not confused by these misspellings. 3 Citing safety reasons, the affidavit specifically states that Ceja is intending to keep the identity of his CI undisclosed. At the suppression hearing, and on appeal, Jamison argued that Ceja was intentionally misleading the magistrate by using the pronouns “they” and “them” for the CI. Jamison also professed confusion over the colloquial use of these pronouns as non-gender identifying pronouns. At one point, despite numerous objections from the State and multiple statements by the trial court that there were not “two” CIs described in the affidavit, Jamison questioned Ceja at length about “two” CIs.

4 photos from a previous arrest, Ceja averred that he showed Jamison’s picture to

the CI and that the CI identified the picture as Jamison. The affidavit also recites

that Jamison had a prior criminal history and that his computerized criminal

history showed outstanding misdemeanor warrants in Tarrant County, Texas,

and a “Possession of Cocaine charge from Colorado.” The affidavit was sworn to

on the same date the magistrate issued the warrant.

After setting up surveillance in anticipation of executing the warrant on

September 24, 2010, Ceja saw Jamison leave the Madeira Drive residence in his

vehicle. By Ceja’s account, he observed Jamison fail to use his turn signal, and

Ceja radioed to another officer to execute a stop of Jamison and to arrest him for

the traffic violation. Police then escorted Jamison to the Madeira Drive residence

and executed the search warrant. In its findings of fact and conclusions of law,

the trial court found that in a recorded conversation, Jamison willingly indicated

that he would accompany officers to execute the search warrant on his

residence. Inside the kitchen of the Madeira Drive residence, officers discovered

over ninety-seven grams of cocaine. Ultimately, the trial court found Jamison

guilty of both charges and assessed punishment at nine years’ incarceration for

the delivery charge and five years’ incarceration for the possession charge, with

the sentences to run concurrently. This appeal followed.

5 III. DISCUSSION

A. Ceja’s Affidavit and the Validity of the Search Warrant

In his first point, Jamison argues that Ceja’s affidavit supporting the search

warrant was deficient because it “contained false allegations, did not establish

that the informant was credible and reliable, and the affiant failed to corroborate

the facts alleged in the affidavit.” Jamison further argues that the information

alleged in the affidavit was conclusory. The State argues that the affidavit stated

adequate probable cause. We agree with the State.

A search warrant may not legally issue unless it is based on probable

cause. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc.

Ann. art. 1.06 (West 2005). When reviewing a trial court’s decision on a motion

to suppress, we normally use a bifurcated standard of review. Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to the trial court’s

determination of historical fact or questions of mixed fact and law when they

involve credibility determinations. Id. But we review de novo the application of

law to the facts, or mixed questions that do not turn on the determination of

credibility. Id. As to search warrants, however, both appellate courts and trial

courts alike must give great deference to a magistrate’s implicit finding of

probable cause. State v. McLain, 337 S.W.3d 268, 271–72 (Tex. Crim. App.

2011). The issuing magistrate’s determination of probable cause will be

sustained if the magistrate had a substantial basis for concluding that a search

6 would uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 236, 103

S. Ct. 2317, 2331 (1983).

When reviewing a magistrate’s determination, we should interpret the

affidavit in a “commonsensical and realistic” manner, recognizing that the

magistrate may draw reasonable inferences. McLain, 337 S.W.3d at 271

(quoting Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)). When

in doubt, we defer to all reasonable inferences that the magistrate could have

made. Id. A “grudging or negative attitude” by reviewing courts toward warrants

is inconsistent with the Fourth Amendment’s strong preference for searches

conducted pursuant to a warrant. Gates, 462 U.S. at 236, 103 S. Ct. at 2331.

Whether the facts alleged in a probable-cause affidavit sufficiently support a

search warrant is determined by examining the totality of the circumstances. Id.

at 230–31, 103 S. Ct. at 2328. A search warrant is supported by probable cause

when the facts set out within the “four corners” of the affidavit are “sufficient to

justify a conclusion that the object of the search is probably on the premises to

be searched at the time the warrant is issued.” Davis v. State, 202 S.W.3d 149,

154 (Tex. Crim. App. 2006).

Jamison’s arguments invite us to scrutinize numerous discrete parts of the

affidavit and to find each deficient so that the affidavit as a whole cannot support

the magistrate’s probable-cause finding. But even Jamison admits that we are

not to analyze the affidavit in a “hyper-technical manner.” See McLain, 337

S.W.3d at 271. Yet Jamison has asked this court to do just that. Using twenty-

7 five pages of briefing, Jamison attacks the affidavit line by line and paragraph by

paragraph, pointing out, much like he did at the suppression hearing,

misspellings, typos, the affiant’s attempts to keep the anonymity of the CI

safeguarded, and what he describes as “intentionally vague statements and

statements made recklessly and without corroboration or verification of their

validity.”

The proper inquiry for reviewing courts, including this court and the trial

court, is whether, under the totality of the circumstances, there are sufficient

facts, coupled with inferences from those facts, to establish a “fair probability”

that evidence of a particular crime will likely be found at a given location. Id. at

272; Rodriguez, 232 S.W.3d at 62. The issue is not whether there are other facts

that could have, or even should have, been included in the affidavit; we focus

instead on the combined logical force of facts that are in the affidavit. Rodriguez,

232 S.W.3d at 62. If in a particular case it may not be easy to determine when

an affidavit demonstrates the existence of probable cause, the resolution of

doubtful or marginal cases in this area should be largely determined by the

preference to be accorded warrants. Lopez v. State, 535 S.W.2d 643, 647 (Tex.

Crim. App. 1976) (citing United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct.

741, 746 (1965)).

Here, the affidavit reflects that Ceja received a tip that crack cocaine was

being sold out of the Madeira Drive residence. Ceja used police records to

identify that Jamison resided at the residence and that Jamison matched the

8 description given by the CI. Further, the affidavit reflects that the CI verified that

the person in a police photo of Jamison was the same person residing at the

residence who was selling crack cocaine. On two separate occasions, Ceja used

the CI, whom he describes as credible and reliable, to effectuate two controlled

buys—both times confirming by presumptive drug testing that the substance

purchased from the residence was crack cocaine. The last controlled buy

occurred within forty-eight hours of the issuance of the warrant. Based on the

totality of these facts and the inferences drawn from them, we conclude that the

affidavit supported the magistrate’s probable-cause finding. See State v. Griggs,

352 S.W.3d 297, 300, 304 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)

(holding that affidavit reciting affiant received tip from “credible and reliable”

informant, coupled with a controlled buy of alleged narcotics, sufficient to

establish probable cause that narcotics would exist at residence); see also Profet

v. State, No. 01-97-00588-CR, 1999 WL 318811, at *1 (Tex. App.—Houston [1st

Dist.] May 20, 1999, no pet.) (not designated for publication) (holding that

affidavit, which stated that officer’s conducting a single controlled buy, coupled

with informant’s description of defendant, was sufficient to support probable-

cause determination). We hold that the trial court did not err by finding that

Ceja’s affidavit contained sufficient facts to justify a conclusion that a search of

Jamison’s residence would probably uncover cocaine on the premises. See

McLain, 337 S.W.3d at 271. We overrule Jamison’s first point.

9 B. The Traffic Stop

In his second point, Jamison argues that he was illegally detained by the

police when, after he was pulled over, he was escorted back to his residence

while police executed the search warrant; thus, Jamison argues that “the trial

court erred by denying [his] Motion to Suppress.” In his motion to suppress,

Jamison argued that “certain items were allegedly removed from [his] person and

from a secondary location where [he] had an expectation of privacy.” As the

State points out, Jamison never identifies what he is actually seeking to

suppress. Indeed, Jamison’s motion did not identify what evidence he wanted

suppressed, nor, as far as we can discern from the record, was such evidence

identified at the suppression hearing. It could be argued that under these

circumstances, the trial court could have properly denied Jamison’s motion to

suppress as inadequate. See Amador v. State, 275 S.W.3d 872, 874 n.3 (Tex.

Crim. App. 2009) (reasoning that failure to identify specific evidence desired to

be suppressed in motion to suppress supports trial court’s determination to deny

the motion).

But this court detects a larger problem with Jamison’s second point.

Jamison has failed to point to any authority that stands for the proposition that

evidence discovered pursuant to a valid search warrant of one’s residence is to

be suppressed because an alleged illegal detention related to a traffic stop at a

separate location occurred. This seems to be an argument that has no

relationship or nexus to the evidence used to convict Jamison; namely, the

10 cocaine discovered in the Madeira Drive residence pursuant to a valid search

warrant. See Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S. Ct. 407,

417 (1963) (explaining that question to be asked in determining whether

evidence should be suppressed under “fruit of the poisonous tree” doctrine is

“whether, granting establishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of that illegality or

instead by means sufficiently distinguishable to be purged of the primary taint”).

Even assuming that Jamison is correct that he was illegally detained when

officers stopped him in his vehicle and then transported him back to his

residence, the discovery of cocaine at Jamison’s residence by means of a valid

search warrant is a sufficiently distinguishable means of discovering the cocaine

to purge any potential taint related to the traffic stop. Id. We conclude that the

trial court did not err by overruling Jamison’s motion to suppress, and we

overrule his second point.

C. Sufficiency of the Evidence

In his third point, Jamison argues that the evidence is “legally and factually

insufficient to connect [him] to the residence and the contraband that was found

in the residence.” Thus, Jamison challenges only that he possessed the cocaine

found at the Madeira Drive residence. We conclude that the evidence is

sufficient to support the trial court’s determination that Jamison possessed the

cocaine found in the residence.

11 1. Standard of Review

The court of criminal appeals has held that there is no meaningful

distinction between the legal sufficiency standard and the factual sufficiency

standard. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).

Thus, the Jackson standard, which is explained below, is the “only standard that

a reviewing court should apply in determining whether the evidence is sufficient

to support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.” Id. at 912.

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012).

2. Possession

A person possesses an object if he has actual care, custody, control, or

management of that object. Tex. Health & Safety Code Ann. § 481.002(38)

(West 2010). When drugs are found, the connection to the drugs must be more

than fortuitous, and to this end, Texas courts utilize a links rule that is designed

to protect innocent bystanders from conviction merely because of their proximity

to someone else’s drugs. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim.

12 App. 2006). Mere presence at the location where drugs are found is insufficient,

by itself, to establish actual care, custody, or control. But presence or proximity,

when combined with other evidence, direct or circumstantial, may be sufficient.

Id.

Some of the links that may establish possession include: (1) the

defendant’s presence when a search is conducted; (2) whether the contraband

was in plain view; (3) the defendant's proximity to and the accessibility of the

narcotic; (4) whether the defendant was under the influence of narcotics when

arrested; (5) whether the defendant possessed other contraband or narcotics

when arrested; (6) whether the defendant made incriminating statements when

arrested; (7) whether the defendant attempted to flee; (8) whether the defendant

made furtive gestures; (9) whether there was an odor of contraband;

(10) whether other contraband or drug paraphernalia were present; (11) whether

the defendant owned or had the right to possess the place where the drugs were

found; (12) whether the place where the drugs were found was enclosed;

(13) whether the defendant was found with a large amount of cash; and

(14) whether the conduct of the defendant indicated a consciousness of guilt.

Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005,

no pet.). It is not the number of links that is dispositive but, rather, the logical

force of all of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.

13 The evidence in this case establishes sufficient links that raise reasonable

inferences of Jamison’s knowledge and control of the cocaine. 4 After officers

arrested Jamison for the traffic violation, he willingly accompanied Officer Bolger

back to the Madeira Drive residence. Bolger testified that it did not appear that

the residence had many occupants, and he also testified that Jamison’s personal

belongings were found “[t]hroughout the house, but mainly the back bedroom.”

Bolger also found “personal paperwork” belonging to Jamison in the residence.

The logical force of this evidence is that it was Jamison’s residence.

Furthermore, once at the residence and while officers executed the search

warrant, Jamison directed officers to the cocaine that was found in the kitchen.

The logical force of this evidence is that Jamison had accessibility to the cocaine.

See Reed v. State, 158 S.W.3d 44, 47–48 (Tex. App.—Houston [14th Dist.]

2005, pet. ref’d) (reasoning that defendant’s knowledge that codeine was in the

trunk of his vehicle was a factor linking him to codeine found therein). Also, in

the audio recording of an exchange between Bolger and Jamison when he was

4 The State did not reintroduce much of the evidence presented during the suppression hearing again at the bench trial. See Cruz v. State, 657 S.W.2d 850, 850 (Tex. App.—Texarkana 1983, no pet.) (“If there had been a jury trial on the merits, the State would be required to prove its case without benefit of the evidence introduced in the pretrial hearing. . . . the State should not be required to do the same when the trier of fact is the trial judge.”) We have analyzed this point of error using only the evidence introduced during the trial, which excludes evidence introduced at the suppression hearing further linking Jamison to the cocaine—namely, Ceja’s testimony that he had established through police records that Jamison lived at the Madeira Drive residence and Ceja’s testimony that he performed two controlled buys through a confidential informant from the residence and by a person named Robby Jamison.

14 arrested for the traffic violation, Jamison admitted that he lived at the Madeira

Drive residence with his girlfriend “Ashley” and that there would be cocaine found

in the house.5 The logical force of these incriminating statements is that Jamison

had actual care, custody, and control over the cocaine found in the residence.

See Olivarez, 171 S.W.3d at 291. Viewing the evidence in the light most

favorable to the verdict, we conclude that the factfinder could have found that

Jamison possessed the cocaine found at the Madeira Drive residence. See

Wilson v. State, No. 01-02-01002-CR, 2004 WL 213388, at *3 (Tex. App.—

Houston [1st Dist.] Feb. 5, 2004, pet. ref’d) (mem. op., not designated for

publication) (“Appellant admitted to owning the house where the drugs were

5 Even though Jamison introduced the audio recording of his and Bolger’s conversation for the limited purpose of taking Bolger on voir dire, at points in the trial, the State, Jamison, and the trial court all treated the audio as if it had been introduced into evidence; thus, we include it in our evidentiary sufficiency analysis. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (reasoning that Texas courts have held that documents or items in some way made part of the trial record which are treated by the court and parties as if formally introduced into evidence are properly considered by the factfinder on the merits of the case). Furthermore, without briefing the point, citing any authority, or analyzing why, Jamison argues that his statement about living at the Madeira Drive residence was made prior to his being given Miranda warnings. But Jamison made statements establishing that the Madeira Drive residence was his home prior to and after officers gave him Miranda warnings. Even assuming Jamison is correct that the statements were illegally obtained in violation of his right against self-incrimination, in our sufficiency review, we consider all evidence, even evidence illegally obtained and improperly introduced. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (reasoning that a reviewing court must consider all the evidence admitted at trial, even improperly admitted evidence, when performing a sufficiency review).

15 found and led officers to locations inside his house where narcotics were

found.”). We overrule Jamison’s third point.

IV. CONCLUSION

Having overruled all three of Jamison’s points, we affirm the trial court’s

judgments.

BILL MEIER JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: February 14, 2013