Court of Appeals of Texas, Sixth District, Texarkana
Submitted: June 23, 2017
Appeal from the 188th District Court Gregg County, Texas
Trial Court No. 45, 665-A
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice.
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 Ecstasy 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, grams 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
firearm by a felon. For the reasons set forth below, we
affirm the trial court's judgment.
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
The Trial Court Did Not Err In Denying Kelly's Motion to
Standard of Review
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 factfindings
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, ' also known as 'mixed questions of law
and fact, ' 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 Caramouche v. State, 10 S.W.3d 323, 327-28 (Tex.
Crim. App. 2000).
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)).
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 statements from the
supporting affidavit of Longview Police Officer Alejandro
Castillo. In his affidavit, Castillo testified that
"[w]ithin 72 hours of the date of this affidavit
[February 22, 2016], [Castillo] received information from a
cooperating individual [CI]" who had observed Kelly or
his co-defendant, Thompson, in possession of what the CI
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 CI 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 CIs
information. Thus, Kelly concludes that the warrant was stale
because it was based on information possibly obtained 144
hours before the warrant was executed.
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[-]short-term intoxication versus
long-term criminal enterprises or conspiracy[-](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
Id. at 708.
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 CI 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 "CI
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,
Affiant, while conducting surveillance at 209 Mitchell
Street, has observed high vehicle traffic and foot traffic
coming and going from this location and observed people in
and out of the location. Affiant believes through my law
enforcement training and experiences that this activity is
common of illegal drug trafficking. Affiant observed . . .
Kelly. . . at listed location at the time high vehicle
traffic and foot traffic was observed.
In Jones v. State, Houston's First Court of
Appeals recently noted that
facts indicating ongoing criminal activity have long been
recognized as diminishing the importance of establishing a
specific and immediate time period in the affidavit:
"Where the affidavit recites a mere isolated violation
it would not be unreasonable to imply that probable cause
dwindles rather quickly with the passage of time. However,
where the affidavit properly recites facts indicating
activity of a ...