PD-1308-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/6/2015 5:34:31 PM Accepted 11/9/2015 4:42:11 PM NO. PD-‐1308-‐15 ABEL ACOSTA CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
AUSTIN, TEXAS
____________________________________
ALVIN VALADEZ, JR.,
Appellant,
vs.
THE STATE OF TEXAS,
Appellee.
_____________________________________
PETITION FOR DISCRETIONARY REVIEW FROM THE COURT OF APPEALS
FOURTH COURT OF APPEALS DISTRICT, SAN ANTONIO, TEXAS
CAUSE NUMBER 04-‐14-‐00626-‐CR
________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
EDWARD F. SHAUGHNESSY III
Attorney-‐at-‐Law
206 E. Locust
San Antonio, Texas 78212
(210) 212-‐6700
(210) 212-‐2178 (fax)
SBN 18134500
Shaughnessy727@gmail.com
November 9, 2015
Attorney for the Appellant
TABLE OF CONTENTS
PAGE(S)
TABLE OF AUTHORITIES…………………………………………………………………………………....................iii
TABLE OF INTERESTED PARTIES…………………………………………………………………………………...iv
STATEMENT REGARDING ORAL ARGUMENT………………………………………………………………......v
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW………………………………….......................6
AUTHORITIES IN SUPPORT OF APPELLANT’S PETITION FOR DICRETIONARY
REVIEW…………………………………………………………………………...................................................................6
NATURE OF THE CASE……………………………………………………………………………………......................6
PROCEDURAL HISTORY OF THE CASE…………………………………………………....…………………….....7
REASONS FOR REVIEW………………………………………………………………....………………........................8
GROUND FOR REVIEW………………………………………………………....…………………………………………9
ARGUMENT AND AUTHORITIES IN SUPPORT
OF THE GROUND FOR REVIEW…………………………...............………………………………….......................9
CONCLUSION AND PRAYER……………………………………………………………………………....................13
CERTIFICATE OF SERVICE………………………………………………………………………………..................14
APPENDIX …………………………………………………………………………………………………....……………..15
ii
TABLE OF AUTHORITIES
STATE CASES
Bonds v. State, 403 S.W.3d 867 (Tex. Crim. App. 2013)…………………………………………………………..10
Gibbs v. State, 819 S.W.2d 821 (Tex. Crim. App. 1991)………………………………………………..…………….12
Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990)………………………………………………………….12
Janecka v. State, 739 S.W.2d 813 (Tex. Crim. App. 1987)……………………………………………….………..12
Jones v. State, 568 S.W.3d 847 (Tex. Crim. App. 1978)…………………………………………………………….10
McFarland v. State, 928 S.W. 482 (Tex. Crim. App. 1996)………………………………………………………..12
State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011)……………………………………………...………….10
State v. Streetman, 93 S.W.3d 102 (Tex. Crim. App. 2002)……………………………………….....……………10
Federal Cases
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964)……………………………………………. .....................................10
RULES
Art. 38.23, Tex. Code Crim. Proc. Ann. (West 2014)………………………………..……………………………………10
Art. 15.05, Tex Code Crim. Proc. Ann. (West 2014)………………………………………………….………………..…9, 13
Tex. Penal Code Ann. § 71.01 (West 2014)…………………………………………………………………………………….11
Tex. Penal Code Ann. § 71.02(West 2014)……………………………………………………………………………………..11
Rule 66.3 (c), Tex. Rule App. Proc…..………………………………………………………………………………………………3
iii
Table of Interested Parties
TRIAL COUNSEL FOR THE STATE:
Keith Henneke & Steven DeLemos
Assistant Criminal Distric Attorneys
25th Judicial District
211 W. Court St., Suite 260
Seguin, Texas 78155
TRIAL COUNSEL FOR APPELANT:
Rolando Garcia
800 Dolorosa, No. 101
San Antonio, TX 78207
Edward F. Shaughnessy, III
San Antonio, TX 78212
APPELLANT’S ATTORNEY ON APPEAL:
(210) 212-‐ 6700
SBN: 18134500
TRIAL JUDGE:
W.C Kirkendall
Guadalupe County, Texas
iv
STATEMENT REGARDING ORAL ARGUMENT
Counsel for the appellant would submit that in the event that this petition is
granted, oral argument would be warranted inasmuch as the issue to be resolved by this
Court is novel and worthy of oral argument on the issue presented.
v
PD-‐1308-‐15
§
IN THE COURT OF
Appellant
CRIMINAL APPEALS
AUSTIN, TEXAS,
Appellee
ARGUMENTS AND AUTHORITIES IN SUPPORT
OF THE APPELLANT’S PETITION FOR DISCRETIONARYREVIEW
OF CAUSE NUMBER 0-‐14-‐00626-‐CR
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
NOW COMES, Alvin Valadez Jr., defendant in the trial Court and appellant in the
lower Court, by and through, Edward F. Shaughnessy, III, attorney at law, and offers the
following arguments and authorities in support of his request that this Court grant his
request for a Petition for Discretionary Review in the instant case, cause number PD-‐1308-‐
15.
NATURE OF THE CASE
The appellant, Alvin Valadez, Jr., was indicted by a Guadalupe County grand jury for
the offense of Possession of a Controlled Substance (Heroin 1 to 4 grams) (Habitual) in
cause number 13-‐1568-‐C. (C.R.-‐18) The appellant was tried by a jury and convicted of the
offense as charged in the indictment.
The appellant was subsequently sentenced, by the
jury, to Life in confinement in the Texas Department of Criminal Justice-‐Institutional
Division.
(C.R.-‐64)
Notice of appeal was subsequently filed in the trial Court and an appeal to the Court
of Appeals for the Fourth Court of Appeals District was pursued. (C.R.-‐60)
That court
affirmed the judgment of the trial court in a published opinion, authored by Justice Alvarez,
on September 16, 2015.
This court has granted the appellant an extension of time to file
the instant petition until November 16, 2015.
PROCEDURAL HISTORY OF THE CASE IN THE LOWER COURT
On September 16, 2015, the San Antonio Court of Appeals, in an published opinion,
authored by Justice Alvarez, affirmed the judgment of the trial court in all respects. Valadez
v. State, (No. 04-‐14-‐00626-‐CR, Tex. App.-‐San Antonio, September 16, 2015) (Appendix A) The
appellant subsequently filed a Motion for Extension of Time to File a Petition for
Discretionary Review with the Court of Criminal Appeals.
That motion was granted, and
the appellant was granted an extension of time to file a Petition for Discretionary Review
until November 16, 2015.
This pleading is filed in compliance with this Court’s order
granting that extension of time.
The appellant would submit that there exists one ground
for review that warrants review by this Court.
It is urged by the appellant that there exist,
at a minimum, two distinct reasons for reviewing the action of the Court of Appeals for the
Fourth Court of Appeals District.
REASONS FOR REVIEW
A
The appellant respectfully petitions this Honorable Court to grant this Petition for
Discretionary Review pursuant to Rule 66.3 (c), Tex. R.
App. Proc. which states that one of
the non-‐exclusive reasons for this Court to grant a petition for discretionary review is that
the Court of Appeals has decided an important question of state law in a way that conflicts
with the applicable decisions of the Court of Criminal Appeals.
The appellant would
respectfully submit that the opinion of the Fourth Court of Appeals is in conflict with the
applicable decisions of this Court.
B
The appellant respectfully petitions this Honorable Court to grant this Petition for
Discretionary Review pursuant to Rule 66.3(b), Tex. R. App. Proc. which states that, one of
the non-‐exclusive reasons for this Court to grant a discretionary review, is that the Court of
Appeals has decided an important question of state law that has not been, but should be,
settled by the Court of Criminal Appeals.
The appellant would respectfully submit that the
Court of Appeals has decided an important question of state law that has not been, but
should be settled the Court of Criminal Appeals.
C.
The appellant respectfully petitions this Honorable Court to grant this Petition for
Discretionary Review pursuant to Rule 66.3(d), Tex. R. App. Proc. which states that, one of
the non-‐exclusive reasons for this Court to grant a discretionary review, is that the Court of
Appeals has misconstrued a statute.
opinion of the Court of Appeals has misconstrued a relevant provision of the Texas Code of
Criminal Procedure.
GROUND FOR REVIEW
THE COURT OF APPEALS ERRED IN HOLDING THAT
THE APPELLANT WAS ARRESTED PURSUANT TO A
VALID ARREST WARRANT AND AS A CONSEQUENCE
CONTRABAND FOUND ON HIS PERSON WAS LEGALLY
SEIZED AND ADMITTED INTO EVIDENCE
ARGUMENT AND AUTHORITIES
IN SUPPORT OF THE GROUND
FOR REVIEW
STATEMENT OF APPLICABLE FACTS
Prior to the onset of the trial, the appellant caused to be filed a written “Motion to
Suppress Evidence” in which he sought to suppress the fruits of a search of his person.
Asserted therein was a claim that the actions of law enforcement violated the Fourth
Amendment to the United States Constitution along with Art. 38.23, Tex. Code Crim. Proc.
Ann. (West 2014) (C.R.-‐16 )
The trial Court conducted an evidentiary hearing on the
motion, at the conclusion of which the motion to suppress was denied and findings of fact
and conclusions of law were entered by the trial Court.
The trial court conducted a hearing on that motion prior to trial.
(R.R.2-‐4 thru 28)
At the hearing it was established that the appellant was arrested on August 28, 2012 by
Officer David Camacho of the Guadalupe County Sheriff’s Department.
The arrest of the
appellant was executed by means of an arrest warrant issued that same day by a Justice of
the Peace for Guadalupe County, alleging that the appellant had committed the offense of
Engaging in Organized Criminal Activity.1
Camacho related that after verifying the validity
1 The Warrant Of Arrest was admitted into evidence at the hearing on the motion to suppress as State’s exhibit 1. The supporting complaint/affidavit was admitted into evidence as State’s exhibit 2.
of the warrant, he along with a fellow officer, went to the home of the appellant in Seguin.
After locating the appellant, Camacho conducted a “search incident to arrest” which
resulted in the discovery and seizure of the four balloons of heroin that formed the basis
for the appellant’s indictment.
(R.R.2-‐12, 13)
Camacho also related that he had no reason
to believe that the arrest warrant that formed the basis for the appellant’s arrest and
subsequent search was lacking in probable cause.2 (R.R.12)
The warrant in question authorized the appellant’s arrest for the offense of “Engage
in Organized Criminal Activity”.
The warrant was supported by a five-‐page
affidavit/complaint presented to the magistrate by Clint Halbardier, of the Seguin Police
Department.
That affidavit purported to present a case establishing probable cause to
believe that six named individuals3 had committed the offense of Organized Criminal
Activity by committing the offense of Aggravated Assault against Roberto Herrera while
committing the assault in concert of three or more individuals. 4
The Halbardier affidavit went on to detail an investigation conducted by members of
the Seguin Police department regarding an alleged assault committed against Roberto
Herrera on August 26, 2012.
In support of the allegations in the affidavit Halbardier relied
in substantial part on information provided by four “unnamed witnesses” who allegedly
witnessed the assault in question, or were privy to certain circumstantial evidence relating
to the assault and the alleged perpetrators thereof.
The affidavit in question contains a
number a number of assertions regarding the behavior of the other five suspects named in
2 Camacho did not relate what the warrant and underlying affidavit/compliant established vis-à- vis probable cause in terms of an offense. 3 The individuals named were as follows: Danny Ramon Gonzales, Roy Martinez, Alvin Valadez (the appellant), Christopher Lopez, Ezekiel Longoria, and Abel Lomas. 4 See: Tex. Penal Code Ann. § 71.02(a)(1) (West 2014)
the affidavit.
With respect to the assertions in the affidavit that relate to the acts of the
appellant there are four assertions
contained in the affidavit that purport to establish probable cause to believe that the
appellant had committed the offense in question.
They are as follows:
1) UW35 stated that (the appellant) showed up after
at his residence after the assault and threatened
UW3.
UW3 also asserted that the Valadez threatened
UW3 not to tell anything to tell the police anything
about the assault;
2) UW46 purportedly informed the affiant that the appellant
had made threats to UW4;
3) Halbardier also asserted that the appellant was a
“documented” member of the Mexican Mafia;
4) Halbadier also included a non-‐factual conclusion
that the appellant “is acting in concert with the other
suspects in trying to threaten witnesses not to give
their testimony to police and to help avoid prosecution
for the aggravated assault of the victim”.
No other factual assertions contained in the Halbardier affidavit relate to acts
attributed to the appellant before, during, or after the alleged assault against Roberto
Herrera.
Following the conclusion of the hearing the trial Court denied the appellant’s motion
to suppress the evidence.
(R.R.2-‐27) Prior to the onset of the trial, the trial court made
findings of fact and conclusions of law.
Those consist of the following:
The defendant was arrested on a warrant issued
on August 28th, 2012 by Justice of the Peace Precinct
Four, Guadalupe County, based on a probable cause
affidavit submitted by Detective Clint Halbardier.
5 The affiant described UW3 as a gainfully employed Texas resident with acquaintances involved in the Mexican Mafia. 6 The affiant described UW4 as a resident of Seguin with no criminal history.
The probable cause affidavit for said warrant
contained information that established probable
cause for (the appellant) to be charged with various
offenses, including conspiracy to commit aggravated
assault, aggravated assault, aggravated assault as a
party to that offense, organized criminal activity to
commit aggravated assault, obstruction or retaliation,
and even possibly tampering with witnesses.
Because such probable cause was established for each
offense, the Justice of the Peace could have issued the
warrant naming any of those felony offenses.
The arresting officers were acting in good faith
reliance on the warrant.
Even if the probable cause
was inadequate for organized criminal activity,
probable cause was established for other felony
offenses. (R.R.5-‐18, 19)
ARGUMENT IN THE LOWER COURTS
In the trial Court the appellant asserted that the arrest warrant, that formed the
legal foundation for his arrest and the subsequent search of his person, was illegal in that it
failed to demonstrate “probable cause” to warrant a belief by the issuing magistrate that
the appellant had committed the offense of Organized Criminal Activity.
That argument
formed the basis of the appellant’s sole point of error in his appeal to the San Antonio Court
of Appeals.
The appellant’s sole point of error was overruled and the appellant’s conviction and
sentence were affirmed in all respects.
HOLDING OF THE LOWER COURT
The lower Court reasoned as follows: “In viewing the totality of the circumstances in
a common sense and realistic manner, we conclude the magistrate had a substantial basis
for concluding that probable cause was shown to issue the arrest warrant against Valadez.
… The affidavit provided sufficient facts that, together with reasonable inferences
therefrom, provided a “fair probability” or “substantial chance” that Valadez was engaged
in organized criminal activity.” Valadez v. State, supra, at slip op. pg. 12.
The appellant respectfully submits that the holding of the Court below is in conflict
with the applicable opinions from this Court with respect to what constitutes “probable
cause” for an arrest.
The appellant also would submit that what constitutes “probable
cause” to issue an arrest warrant for the offense of Engaging in Organized Criminal Activity
has never been addressed by this Court and as a result an important question of state law is
presented by the instant case and review of that issue by this Court is warranted.
Lastly,
the opinion of the Court below appears to misconstrue the statutory provision mandating
that an arrest warrant must contain information that demonstrates that the accused has
committed some offense against the laws of the State, either directly or that the affiant has
good reason to believe , and does believe, that the accused has committed such offense. See:
Art. 15.05, Tex Code Crim. Proc. Ann. (West 2014).
These three contentions will be
addressed hereinafter in the order set forth above.
I
With respect to what constitutes “probable cause” this Court has stated on a number
of occasions that “probable cause” exists when the affidavit/complaint provides the issuing
magistrate with sufficient information to support an independent judgment that probable
exists for the warrant. Jones v. State, 568 S.W.3d 847 (Tex. Crim. App. 1978).
The
establishment of probable cause mandates that an affidavit in support of an arrest warrant
contain facts and circumstances within the affiant’s knowledge and of which he has
reasonably trustworthy information, sufficient to warrant a prudent person to believe that
the subject of the arrest warrant has committed an offense.
State v. Streetman, 93 S.W.3d
102 (Tex. Crim. App. 2002).
In the case of an arrest warrant, such as in the instant case, the
issuing magistrate, and the reviewing trial judge are limited to the contents of the affidavit
in support of the warrant/complaint.
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964);
State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011). In a case involving a warrant, and the
underlying affidavit, there are no credibility issues to take into account hence an appellate
court is to employ the de novo standard of review in passing on the propriety of trial court’s
ruling. See: Bonds v. State, 403 S.W.3d 867 (Tex. Crim. App. 2013).
The opinion of the Court below recognized these concepts in the course of its review
of the trial Court’s ruling.
Nevertheless, it is and was the appellant’s contention that even in
reviewing the affidavit in a “common sense” manner as opposed to a “hypertechnical”
manner the four corners of the affidavit in dispute wholly fail to support a finding by a
reasonably prudent person that the appellant had committed the offense of Engaging in
Organized Crime.
The offense of Engaging in Organized Activity is defined in a highly circumscribed
manner, and is limited in its scope.
It requires proof that the accused as a member of a
criminal street gang committed or conspired to commit… aggravated assault. See: Tex.
Penal Code Ann. §§ 71.01(d) & 71.02(a)(1) (West 2014). In the context of the instant case, a
valid warrant for the named offense would necessitate factual assertions, within the four
corners of the affidavit, that the subject of the warrant that the named suspect had acted as
a member of a criminal street gang.7
It would also necessitate factual assertions, within the
four corners of the affidavit, that the suspect person had committed the offense of
aggravated assault8. Those are the elements of the offense for which the instant warrant
was issued and the arrest was perfected.
It is the contention of the appellant that the affidavit is question is wholly devoid of
any facts that would support a finding by the issuing magistrate that the named suspect
(the appellant), acting as a member of a criminal street gang, as defined, had committed
aggravated assault on the person of Roberto Machado Herrera.
The entirety of the affidavit
in question reflects nothing more than actions by the appellant after the fact.
There are no
facts contained within the four corners of the affidavit that so much as suggest that the
appellant assaulted the complainant or that he aided, abetted or assisted the actors named
in the affidavit.
The implications contained in the affidavit suggest nothing more than the
appellant acquired knowledge of the event in question after the fact and sought to assist
the named actors avoid apprehension and or prosecution. This is a far cry from presenting
facts to the issuing magistrate that would support a reasonable belief that the appellant had
participated in the assault in any fashion.
By finding to the contrary, the court below has issued an opinion that is in conflict
with the holdings of this Court on the issue of what constitutes probable cause for an arrest
warrant.
See: McFarland v. State, 928 S.W. 482 (Tex. Crim. App. 1996); Gibbs v. State, 819
7 “Three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities. Tex. Penal Code Ann. § 71.01(d), supra. 8 The affidavit in dispute did not assert that the facts supported an arrest warrant on the grounds that the appellant had conspired to commit the offense of aggravated assault as a member of a criminal street gang. (State’s exhibit 3, pg. 2)
S.W.2d 821 (Tex. Crim. App. 1991); Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990);
Janecka v. State, 739 S.W.2d 813 (Tex. Crim. App. 1987).
The opinion of the lower court is in conflict with the applicable holdings of this court
on the question of what constitutes a valid affidavit in support of an arrest warrant.
Review of the holding of the lower court is warranted.
The appellant would also submit to this court that the question of what constitutes a
valid and sufficient affidavit to warrant the issuance of an arrest warrant for the offense of
Engaging in Organized Crime has never been addressed by this court in any fashion,
Consequently, this case presents an important question of State law, that has not been, but
should be decided by this court.
Lastly the appellant would submit that the holding of the lower court has
misconstrued the statute that governs the sufficiency of arrest warrants.
More specifically
the appellant would submit that the opinion of the lower court has misconstrued Art. 15.05
(2), Tex. Code Crim. Proc. ann. (West 2014) which sets forth the statutory requirements for a
valid affidavit in support of an arrest warrant.9
The opinion of the lower court has
misconstrued that provision.
9 The complaint shall be sufficient, without regard to form, if it have these substantial requisites:…. It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe that the accused has committed such offense.
CONCLUSION AND PRAYER
It is respectfully requested, by the appellant that a petition for discretionary review
to the Fourth Court of Appeals be granted and that the case be briefed on the merits of the
appellant’s ground for review with argument to follow.
Respectfully submitted,
/s/Edward F. Shaughnessy, III
Attorney at Law
CERTIFICATE OF SERVICE
I, Edward F. Shaughnessy, III., certify that a copy of the foregoing petition was
mailed to Heather McMinn, District Attorney, 25th Judicial District, 211 W. Court Street,
Suite 260, Seguin, Texas 78155, on this the _6_ day of November, 2015.
I, Edward F. Shaughnessy, III certify that a copy of the foregoing petition was mailed
to the office of the State Prosecuting Attorney, P.O. Box 78711, Austin, Texas 78711, on this
the _6_ day of November, 2015.
CERTIFICATE OF COMPLIANCE
I, Edward F. Shaughnessy, III, attorney for the appellant hereby certify that the
instant pleading contains 3624 words, exclusive of the appendix.
APPENDIX
Fourth Court of Appeals San Antonio, Texas OPINION No. 04-14-00626-CR
Alvin VALADEZ Jr., Appellant
v.
The STATE of Texas, Appellee
From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 13-1568-CR-C Honorable W.C. Kirkendall, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: September 16, 2015
AFFIRMED
This case arises from the conviction of Appellant Alvin Valadez Jr. for felony possession
of a controlled substance. After the trial court denied his motion to suppress, Valadez was
convicted by a jury. Valadez entered a plea of true to the State’s allegations regarding prior
consecutive felony convictions and the jury assessed punishment at life confinement in the
Institutional Division of the Texas Department of Criminal Justice.
In his sole issue on appeal, Valadez argues that the trial court erred by denying his motion
to suppress evidence because the complaint supporting the arrest warrant failed to demonstrate 04-14-00626-CR
probable cause he committed the offense of engaging in organized criminal activity. We affirm
the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
1. Valadez’s Arrest
On August 28, 2012, a Guadalupe County justice of the peace signed an arrest warrant
authorizing the arrest of Alvin Valadez Jr. for the offense of engaging in organized criminal
activity. The warrant was supported by a complaint asserting Valadez and five other individuals
committed the offense of engaging in organized criminal activity with the underlying offense being
the aggravated assault of Roberto Machado Herrera Jr.
2. Arrest Warrant
Seguin Police Department Detective Clinton Halbardier signed the five-page complaint 1
based on his investigation and that of the Seguin Police Department. In his application, Detective
Halbardier reported he relied on statements provided by four unnamed informants who directly
witnessed the assault in question or were privy to certain circumstantial evidence relating to the
assault. Detective Halbardier further averred that he believed these witnesses to be credible and
the magistrate could rely on them. He cited interviews with the victim, previous investigations of
the listed suspects, and Seguin Police Department offense reports and supplemental reports.
Detective Halbardier’s complaint asserted that on August 26, 2012, Herrera was
approached by five or six men who questioned him about his gang affiliation. After Herrera
informed the group he was part of the “Orejones,” the group asserted they were the “EME” or the
“Merecido,” common names for the Mexican Mafia. The group further instructed Herrera that he
1 We note Detective Halbardier is the complainant on the application of the arrest warrant. His statement is sworn before the magistrate. The terms complaint and affidavit are, therefore, used interchangeably in this opinion.
-2- 04-14-00626-CR
should deny being a member of the Orejones because he was in Merecido territory. As Herrera
exited his vehicle, one of the individuals waived his arm and Herrera was attacked from behind
with a knife. Herrera was stabbed and beaten.
Detective Halbardier averred that all six suspects, including Valadez, were confirmed to
be active gang members. The officer outlined Valadez’s affiliation as “a documented Mexican
Mafia gang member” and a “lieutenant with the Mexican Mafia,” based on national and state
database information searches.
Detective Halbardier also relied on the statements of four witnesses who asked to be
unnamed in the complaint for “personal safety and security reasons.” Two of the witnesses were
gainfully employed, had previously provided credible information, and had acquaintances
involved in the Mexican Mafia. The third witness was present during the assault and his statement
corroborated Herrera’s statements, and the final witness had no criminal history. Two of the four
witnesses reported being threatened not to tell officers about the assault. Additionally, several of
the informants reported the assault stemmed from suspicions that Herrera stole drugs from
Valadez. Detective Halbardier’s complaint concluded,
considering all of the known facts and the current information provided by the witnesses, [Valadez] has been named multiple times in the past as the leader of the Mexican Mafia in Seguin. [Valadez] is acting in concert with the other suspects in trying to threaten witnesses not to give their testimony to police and to help avoid prosecution for the aggravated assault on the victim.
A Guadalupe County justice of the peace issued the arrest warrant that same day, authorizing the
arrest of Valadez for the offense of engaging in organized criminal activity. After locating and
securing Valadez, Guadalupe County Sheriff’s Office Investigator David Camacho executed the
arrest warrant and conducted a search incident to arrest. During the search, Investigator Camacho
discovered four balloons of heroin in Valadez’s pocket.
-3- 04-14-00626-CR
B. Hearing on the Motion to Suppress the Arrest Warrant
On August 20, 2014, the trial court held a hearing on Valadez’s motion to suppress the
arrest warrant based on the complaint’s failure to establish probable cause.
Investigator Camacho testified that on August 28, 2012, he traveled to Valadez’s residence
to arrest Valadez. Investigator Camacho was familiar with Valadez and positively identified
Valadez at his residence; after a short scuffle, Valadez was taken into custody without further
incident. The officer conducted a search incident to arrest and located four balloons of heroin in
Valadez’s pocket.
Detective Halbardier described the overall structure of the Mexican Mafia and that
lieutenants were generally in charge of day-to-day operations in a specific city or county. He also
relayed the Mexican Mafia was known for engaging in both sanctioned and unsanctioned assaults.
Detective Halbardier testified that, in his opinion, the assault on Herrera was a sanctioned assault
by Valadez.
Following the conclusion of the hearing, the trial court denied Valadez’s motion to
suppress the evidence but did not make findings of fact or conclusions of law at that time. The
case was called before a jury on August 25, 2014. After both sides rested and closed their cases,
but prior to closing arguments, the trial court stated, on the record, the following findings of fact
and conclusions of law.
[Valadez] was arrested on a warrant issued on August 28th, 2012, by Justice of the Peace Precinct Four, Guadalupe County, based on a probable cause [complaint] submitted by Detective Clint Halbardier.
The probable cause [complaint] for said warrant contained information which established probable cause for Alvin Valadez, Jr., to be charged with various offenses, including conspiracy to commit aggravated assault, aggravated assault as a party to that offense, organized criminal activity to commit aggravated assault, obstruction or retaliation, and even possibly tampering with witnesses. Because such probable cause was established for each offense, the Justice of the Peace could’ve issued the warrant naming any of those felony offenses. -4- 04-14-00626-CR
The arresting officers were acting in good faith reliance on the warrant. Even if the probable cause was inadequate for organized criminal activity, probable cause was established for other felony offenses.
See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (holding the trial court’s findings
of fact and conclusions of law are sufficient if they are “recorded in some way, whether written
out and filed by the trial court, or stated on the record at the hearing”).
In his sole issue on appeal, Valadez argues that because the complaint supporting the arrest
warrant failed to demonstrate probable cause that Valadez committed the offense of engaging in
organized criminal activity, the trial court erred by denying his motion to suppress the arrest
SUPPRESSION OF ARREST WARRANT
A. Standard of Review
An appellate court reviews a trial court’s ruling on a motion to suppress on a bifurcated
standard of review, giving almost total deference to the trial court’s determination of historical
facts that depend on credibility choices; we review the court’s application of the law de novo. See
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); see also Amador v. State, 221
S.W.3d 666, 673 (Tex. Crim. App. 2007); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim.
App. 2004); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because we look only
within the four corners of the complaint to determine whether probable cause to issue a warrant
exists, the trial court is not required to make any credibility choices in inspecting the affidavit.
Robuck v. State, 40 S.W.3d 650, 654 (Tex. App.—San Antonio 2001, pet ref’d).
We note this case involves not only the trial court’s determination of probable cause, but
also the underlying question of the magistrate’s probable cause determination. In doing so, we use
a substantial basis standard of review based on the totality of the circumstances presented to the
magistrate. See Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (applying Illinois v. -5- 04-14-00626-CR
Gates, 462 U.S. 213, 236–39 (1983). A trial court’s ruling on a motion to suppress will be upheld
if there is any valid theory of law applicable to the case, even if the trial court did not base its
decision on that theory. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).
B. Argument of the Parties
Valadez contends that because the State failed to demonstrate the arrest warrant was
supported by a complaint demonstrating probable cause to arrest on the charge of engaging in
organized criminal activity, the trial court erred in denying Valadez’s motion to suppress. Valadez
argues that the warrant was devoid of the facts necessary to support a magistrate’s independent
judgment that probable cause existed that either Valadez, “or any other named suspects, acted with
the intent to establish maintain or participate in the profits of a combination or a criminal street
gang.”
The State counters that the arrest warrant was supported by probable cause for the offense
because the issuing magistrate could reasonably infer that Valadez had conspired with other
members of the Mexican Mafia to commit an aggravated assault against Herrera.
C. Probable Cause to Support Issuance of the Warrant
“An arrest warrant affidavit must provide the magistrate with sufficient information to
support an independent determination that probable cause exists to believe that the accused has
committed a crime.” McFarland v. State, 928 S.W.2d 482, 509 (Tex. Crim. App. 1996), abrogated
on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998); see also
State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012); Gurrusqueita v. State, 244 S.W.3d
450, 452 (Tex. App.—Fort Worth 2007, pet. ref’d). We must, therefore, determine whether the
probable cause affidavit in question provided the magistrate with sufficient information to support
an independent judgment that probable cause existed to issue a warrant for Valadez’s arrest. Flores
v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). -6- 04-14-00626-CR
1. Totality of the Circumstances
A reviewing court’s assessment of the affidavit’s sufficiency is limited to “a reasonable
reading” within the four corners of the affidavit while simultaneously recognizing the magistrate’s
discretion to draw reasonable inferences. See Duarte, 389 S.W.3d at 354 (citing Rodriguez v.
State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007)); State v. Coker, 406 S.W.3d 392, 395 (Tex.
App.—Dallas 2013, pet. ref’d). The magistrate’s probable-cause determination must be upheld if
the magistrate had a substantial basis for concluding that a search would uncover evidence of a
crime. See Duarte, 389 S.W.3d at 354 (citing Illinois v. Gates, 462 U.S. at 236). Probable cause
requires the affiant to demonstrate there is a probability that the accused committed an offense,
not that the evidence proves the suspect’s guilt beyond a reasonable doubt. Moss v. State, 75
S.W.3d 132, 140 (Tex. App.—San Antonio 2002, pet. ref’d). “This is a flexible, nondemanding
standard.” Coker, 406 S.W.3d at 396 (citing Duarte, 389 S.W.3d at 354). A magistrate is enabled
to draw reasonable, common-sense inferences from the facts and circumstances contained in the
affidavit; however, a magistrate may not merely rubber stamp the bare conclusions of others. See
also Duarte, 389 S.W.3d at 354, Rodriguez, 232 S.W.3d at 61.
Our review focuses on the sufficiency of affidavits on which warrants are issued “to ensure
. . . an abdication of the magistrate’s duty does not occur.” Gates, 462 U.S. at 239. Our review
must remain realistic and not hyper-technical and we “must uphold the magistrate’s decision so
long as the magistrate had a substantial basis for concluding that probable cause existed.” Duarte,
389 S.W.3d at 354; accord State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).
An appellate court’s focus cannot be on what other facts “could or should have been
included in the affidavit,” but rather must be “on the combined logical force of facts that actually
are in the affidavit.” Duarte, 389 S.W.3d at 354–55; accord Rodriguez, 232 S.W.3d at 60. The
affiant’s reliability, as well as the reliability of his sources, are part of the totality of the -7- 04-14-00626-CR
circumstances that the magistrate should evaluate in making a probable-cause determination. See
Coker, 406 S.W.3d at 396.
We thus turn to the circumstances set out within the four corners of the probable cause
affidavit before us.
2. Charge Contained within the Arrest Warrant
The complaint alleged that Valadez,
on or about the 26th through 27th day of August, 2012, in Guadalupe County, Texas, did then and there commit the offense of Engaging in Organized Criminal Activity—Aggravated Assault by intentionally and knowingly causing serious bodily injury to the victim, Roberto Machado Herrera Jr., by punching, kicking and stabbing with a knife or lethal cutting instrument, while committing the act in concert of three or more individuals, against the laws of the State.
Detective Halbardier’s affidavit averred that he relied on (1) the Seguin Police Department
offense report and supplements, (2) multiple offense investigations involving several of the named
suspects, (3) multiple witness interviews, (4) suspect interviews, (5) interviews of other involved
persons, and (6) his personal observations. We first address Detective Halbardier’s reliance on
unnamed informants.
3. Affidavit’s Reliance On Unnamed Informants
“With regard to an informant’s tips, we take into account the informant’s veracity,
reliability, and basis of knowledge to determine the value of his assertions, as well as whether his
information is stale.” Rivas v. State, 446 S.W.3d 575, 579 (Tex. App.—Fort Worth 2014, no pet.)
(citing Gates, 462 U.S. at 233; Davis v. State, 144 S.W.3d 192, 197 (Tex. App.—Fort Worth 2004,
pet. ref’d) (op. on reh’g)). “Corroboration of the details of an informant’s tip through independent
police investigation can also be relevant in the magistrate’s determination of probable cause.”
Davis, 144 S.W.3d at 197 (citing Gates, 462 U.S. at 241–42). The affidavit must also set forth the
basis upon which the officer formed the underlying “belief in an informant’s credibility and
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veracity.” Id. “‘[A] deficiency in one may be compensated . . . by a strong showing as to the
other, or by some other indicia of reliability,’ all of which are relevant considerations under the
totality of the circumstances.” Id. (quoting Gates, U.S. at 233).
“While information from an unnamed informant alone does not establish probable cause,
the informant’s tip combined with an independent police investigation may provide a substantial
basis for the probable-cause finding.” Cf. Lowery v. State, 843 S.W.2d 136, 141 (Tex. App.—
Dallas 1992, pet. ref’d); Serrano v. State, 123 S.W.3d 53, 62–63 (Tex. App.—Austin 2003, pet
ref’d). The unnamed informant’s credibility may be established by allegations that the informant
has proven reliable on previous occasions. Blake v. State, 125 S.W.3d 717, 726 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). “This reliability may be established by the general assertions
of the affiant, as stated in the affidavit, concerning the informant’s prior reliability.” Id.
Here, Detective Halbardier indicated he relied on four different unnamed witnesses. The
first had “acquaintances involved in the Mexican Mafia and knows the details of the gang”; the
second was present when the assault occurred and corroborated the victim’s description of the
assault; the third is gainfully employed and has acquaintances involved in the Mexican Mafia; and
the fourth was a resident of Seguin with no criminal history. Detective Halbardier further opined,
“I believe the unnamed witnesses are credible and that I and any magistrate can rely on their
information in the matters such as these.” Although the third and fourth informants cannot be
characterized as eyewitnesses of the assault, both gave first-hand accounts of Valadez’s tactics.
Detective Halbardier knew who the informants were and could hold them accountable for
their statements and was able to establish each informant’s inherent reliability or basis of
knowledge. Additionally, each of the witnesses provided their statements directly to the police,
rather than placing an anonymous call or tip, and were unnamed for the sake of their safety. See
Lockett v. State, 879 S.W.2d 184, 188 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). -9- 04-14-00626-CR
4. Other Information Relied upon by the Officer
Information “of unknown reliability must be coupled with facts from which an inference
may be drawn that the informant is credible.” Duarte, 389 S.W.3d at 357. However, when the
affidavit contains information given by an informant or eyewitness, the affidavit is sufficient if the
information adequately suggests direct knowledge on his or her part. Wilkerson v. State, 726
S.W.2d 542, 545 (Tex. Crim. App. 1986); Belton v. State, 900 S.W.2d 886, 894 (Tex. App.—El
Paso 1995, pet. ref’d) (“if the named informant is a private citizen whose only contact with the
police is a result of having witnessed a criminal act . . . the credibility and reliability of the
informant is inherent”).
Detective Halbardier relied on another officer’s interview of the victim taken at the
hospital. In Davis v. State, 202 S.W.3d 149, 156 n.20 (Tex. Crim. App. 2006), the Texas Court of
Criminal Appeals stated that “[o]bservations reported to the affiant by other officers engaged in
the investigation can constitute a reliable basis for issuing a warrant.”
a. Victim’s Statement
Herrera told Seguin Police Detective Jaime Diaz that he was with two other individuals
when they drove by a party and one of his friends began talking to Ezekiel Longoria, one of the
named conspirators. Longoria asked Herrera “what gang he belonged to,” and Herrera replied
“Orejones.” When Herrera exited the vehicle, Longoria waived his hand and two other individuals
attacked Herrera from behind. Herrera stated “approximately five to six males were assaulting at
one time.” The informant also told Detective Diaz the assault was “set up” because Herrera was
suspected of stealing narcotics that belonged to Valadez. This statement was corroborated by the
third informant’s report that two of the individuals that attacked Herrera, including Valadez,
threatened the informant to “keep his mouth shut.” See Davila v. State, No. AP-76,105, 2011 WL
303265, at *6 (Tex. Crim. App. Jan. 26, 2011) (not designated for publication) (relying on - 10 - 04-14-00626-CR
eyewitness identification of the shooter as support for the arrest warrant); State v. Ozuna, 88
S.W.3d 307, 310 (Tex. App.—San Antonio 2002, pet. ref’d).
b. National and State Databases and other Officers’ Reports
Detective Halbardier confirmed with local, state, and federal officers and with national and
state databases that Valdez was a lieutenant with the Mexican Mafia.
During the past several months of investigating multiple violent gang-related offenses, working with several Local, State, and Federal officers, it has been confirmed that all of [these] six individuals are active gang members.
Detective Halbardier also testified he relied on reports from the Seguin Police Department. The
information contained in the affidavit may be based on either direct personal observations of the
affiant or on hearsay information. Belton, 900 S.W.2d at 893. In Belton, the appellant claimed
that because the affidavit in question reflected no personal knowledge on the part of the affiant,
the arrest warrant lacked probable cause. Id. at 894. The court rejected this argument, noting that
the affidavit contained a statement that the affiant possessed police reports and sworn statements,
as well as information from a witness who had actual knowledge concerning appellant’s
participation in a crime. Id.
Because Detective Halbardier read the Seguin Police Department offense report and
supplements, investigated multiple offenses involving several of the named suspects, and
interviewed multiple witnesses, suspects, and other involved persons, his personal observations
meet the low threshold illustrated in Belton. Id.; see also Kolbert v. State, 644 S.W.2d 150, 153
(Tex. App.—Dallas 1982, no pet.).
Corroboration means, that in light of the circumstances, the officer confirms enough facts
to reasonably conclude the information provided is reliable. See State v. Sailo, 910 S.W.2d 184,
189 (Tex. App.—Fort Worth 1995, pet. ref’d). We therefore conclude that Detective Halbardier
- 11 - 04-14-00626-CR
was entitled to rely on the information provided to him by other officers’ investigations and thus
entitled to rely upon the information provided by the victim and the unnamed informants.
CONCLUSION
In viewing the totality of the circumstances in a common sense and realistic manner, we
conclude the magistrate had a substantial basis for concluding that probable cause was shown to
issue the arrest warrant against Valadez. The officers obtained information from several unnamed
informants that corroborated the victim’s statement as well and the information provided by other
state, local, and national agencies. Given Detective Halbardier’s training and the stated credibility
of the unnamed informants, the magistrate could reasonably infer that Valadez was tied to the
assault on Herrera. The affidavit provided sufficient facts that, together with reasonable inferences
therefrom, provided a “fair probability” or “substantial chance” that Valadez was engaged in
organized criminal activity. See Flores, 319 S.W.3d at 702; Rodriguez, 232 S.W.3d at 61.
Accordingly, we cannot conclude the trial court erred in denying Valadez’s motion to suppress his
arrest warrant. 2
Having overruled Valadez’s sole issue on appeal, we affirm the trial court’s judgment.
Patricia O. Alvarez, Justice
PUBLISH
2 Because we conclude the magistrate had probable cause to issue the arrest warrant based on the allegations that Valadez engaged in organized criminal activity in the assault of Herrera, we need not address Investigator Camacho’s good faith exception.
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