ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 2007-414,858-A IN THE 364TH DISTRICT COURT FROM LUBBOCK COUNTY
The opinion of the court was delivered by: Hervey, J
Hervey, J., delivered the opinion for a unanimous Court.
Applicant was convicted of possession of a controlled substance and was sentenced to ninety-nine years' imprisonment. His conviction was upheld on direct appeal. Moore v. State, No. 07-09-0276-CR, 2010 Tex. App. LEXIS 3312 (Tex. App.--Amarillo May 4, 2010) (memo. op., not designated for publication). Applicant's petition for discretionary review was denied by this Court. Applicant now files this application for writ of habeas corpus claiming that he was denied effective assistance of trial counsel when trial counsel failed to preserve the issue of the validity of the search warrant for appellate review. The trial court entered findings of fact and conclusions of law recommending that we deny relief. Relief is denied.
Applicant was arrested on December 8, 2006, during the execution of a search warrant on Room 25 of the Sunset Motel located at 2305 Clovis Road, Lubbock, Texas. The search resulted in the seizure of cocaine base and marijuana. Applicant was indicted for the offense of possession with intent to deliver cocaine in an amount of between 4 and 200 grams.
The affidavit in support of the search warrant stated the following, in pertinent part:
6. The target of this investigation is a black male known as "Dizzy", who resides at 2305 Clovis Road, Room number 25, Lubbock, Lubbock County, Texas based on the information set forth herein below.
The Affiant believes the Confidential Source (CS), referred to in this affidavit to be truthful. The below listed CS's have provided information in the past that has proven to be true and correct, and the information provided has been corroborated through surveillance, record checks, and other law enforcement officers.
Affiant has learned through his tenure as a DEA Task Force Officer in Lubbock, Texas, as a Lubbock Police Officer, through Confidential Sources, Sources of Information, and other law enforcement officers that "Dizzy" and "Nookie" are distributors of cocaine base in the Lubbock, Texas area. Within the past seventy-two hours, that above listed confidential informant has observed a quantity of cocaine base inside of the listed motel room. The confidential informant is able to recognize cocaine base and other controlled substances.
The Above referenced confidential informant has given information in the past on at least five occasions that has been proven to be credible and reliable. Affiant believes the informant to be credible and reliable base[d] on the past performance of the confidential informant.
Based on information contained within this Affidavit, and based on my training, education, and experience, Affiant believes that "Dizzy" and "Nookie" are distributors of cocaine base in the Lubbock, Texas area and that "Dizzy" and "Nookie" utilize this building for the purpose of concealing his proceeds and cocaine base.
Due to these factors, Affiant asks for the issuance of a warrant that will authorize him to search said premises for potential contraband.
Applicant filed a motion to suppress alleging that all evidence obtained during the search of the motel room should be suppressed because the search violated his constitutional and statutory rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article I, Section 9, of the Texas Constitution; and Article 38.23 of the Texas Code of Criminal Procedure. Specifically, Applicant argued that the search warrant used to obtain the evidence in the case was improper because (1) the search warrant affidavit did not reflect sufficient probable cause to justify the issuance of a search warrant because it lacked sufficient underlying circumstances to permit the conclusion that the contraband was at the location where it was claimed to be and failed to establish the credibility of the confidential informant; (2) the search warrant affidavit did not show probable cause sufficient to justify the issuance of the search warrant because there was no substantial basis for concluding that probable cause ...