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Kelly v. State

Court of Appeals of Texas, Sixth District, Texarkana

August 31, 2017

MARQUIS DEMICHAEL KELLY, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted: June 23, 2017

         On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 45, 665-A

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Ralph K. Burgess Justice.

         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 Ecstasy[1] 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.

         I. 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 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, '[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 Caramouche 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 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.[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[-]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 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 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 ...

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