# Oscar Gerardo Davila v. State

> Texas Court of Appeals, 1st District (Houston) · July 22, 2014 · 441 S.W.3d 751

URL: https://www.frixlaw.com/law-library/cases/3101451

## Case

- **Full name:** Oscar Gerardo DAVILA, Appellant v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** July 22, 2014
- **Citations:** 441 S.W.3d 751; 2014 Tex. App. LEXIS 7912; 2014 WL 3605871
- **Precedential status:** Published
- **Opinion:** Opinion by Brown
- **Judges:** Jennings, Sharp, Brown
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3101451

## How later opinions describe it (automated extraction)

- rejecting challenge to jury-reimbursement fee included as court costs assessed against defendant after he pled guilty

## Opinion text

Opinion issued July 22, 2014.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01–12–01174–CR
———————————
OSCAR GERARDO DAVILA, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1322703

OPINION

We originally issued our memorandum opinion in this appeal on May 15,

2014. We withdraw our previous memorandum opinion and judgment, and

substitute this opinion and judgment in their place.
Oscar Davila pleaded guilty to possession with intent to deliver more than

400 grams of cocaine, and the trial court assessed punishment at 25 years’

confinement.1 In two issues, Davila contends that the trial court erred by (1)

overruling his motion to suppress evidence collected during a police search of his

home and (2) assessing $294 in court costs that were unsupported by the record.

We affirm.

Background

One October evening, a joint law-enforcement team, including United States

Drug Enforcement Agency Special Agent M. Schmidt, sent a trusted confidential

informant to Davila’s house to arrange a deal to buy two kilograms of cocaine.

Schmidt testified that he had partnered with the informant on other successful

investigations and that he was a reliable source. That evening, the informant wore a

concealed recording device, allowing Schmidt to listen to the entire conversation

between the informant, Davila, and the others inside Davila’s house. Schmidt

monitored the audio feed from the informant’s wire and other law enforcement

officers maintained visual surveillance of the outside of Davila’s house.

According to Harris County Deputy Sheriff B. Katrib, parked cars lined the narrow

street in front of Davila’s home, making surveillance difficult.

1
TEX. HEALTH & SAFETY CODE ANN. § 481.112(f) (West 2010) (establishing
criminal penalty for knowingly manufacturing, delivering, or possessing with
intent to deliver more than 400 grams of controlled substance).
2
When the informant approached the house, Davila and A. Lopez were sitting

on the bed of a pickup truck in the driveway. Davila, Lopez, and the informant

went inside the house where Davila showed the informant one kilogram of cocaine.

The informant then asked to see the other kilogram. Lopez went outside to the

truck, retrieved the other kilogram of cocaine, and brought it inside the house to

show the informant. Relying on a child who was in the house as an interpreter,

Davila and the informant discussed details of the deal.

The informant left the house and contacted Special Agent Schmidt to report

what he had seen. The informant said that he last saw the two kilograms of cocaine

on the kitchen counter and that Davila appeared “very nervous and in a hurry to do

the deal.” Based on the informant’s report, Schmidt signaled for Katrib and a team

of other law enforcement officers to conduct a protective sweep of Davila’s house

without a warrant. The team members approached the house, identified themselves,

and entered the house without consent. The team cleared the house of all of its

inhabitants, including Davila, Lopez, Davila’s wife, and several children. The law

enforcement officers handcuffed Davila and Lopez and brought everyone else into

the front yard. Lopez tried to run back into the house, but the team stopped him

and brought him back outside.

Once everyone was in the front yard, a member of the law enforcement team

used a specially-trained dog to conduct a dog-sniff test of the truck parked in the

3
driveway. The dog alerted officers that there was an odor of some narcotic on the

car.

Using a laptop computer, Harris County Deputy Sheriff A. Ortiz relied only

on information from the informant and the results of the sniff test of the truck to

complete an affidavit in support of a warrant. Ortiz e-mailed the affidavit to

another officer who submitted the request for a warrant. The affidavit stated:

On 10/06/2011, I spoke with investigator B. Katrib of the Harris
County Sheriff’s Office Narcotics Unit, who advised me of the
following facts:

Katrib told me that on 10/06/2011, he met with a confidential source,
referred to as CS for the purposes of this investigation and affidavit.
For safety purposes the name of this CS will be kept confidential.
Katrib told me that he spoke with DEA Special Agent M. Schmidt, of
the Houston Field Office, who told Katrib that this CS has provided
information in the past on several occasions, which proved to be true
and correct, and led to the seizure of narcotics and the arrest of
individuals and charging them with felony offenses.

Katrib told me that on 10/06/2011, at approximately 2100 hours, he
along with several DEA Special Agents, met with this CS, who told
them that he was going to the residence . . . in order to discuss a
cocaine deal. Katrib told me that he along with other DEA Special
Agents, maintained surveillance on the target residence. Katrib told
me that the CS went to the aforementioned location and met with two
Hispanic males at the driveway.

Katrib told me that the CS walked into said residence and walked out
shortly after, and departed the residence. Katrib told me that the CS
told S/A Schmidt that the CS and two Hispanic males entered the
kitchen of said residence and that the CS told S/A Schmidt that one
Hispanic male walked out to the driveway and retrieved what he
believed to be one kilogram of cocaine from behind the driver seat of
the tan Chevy pick up truck . . . and walked inside the kitchen.
4
Katrib told me that the CS told S/A Schmidt that the same Hispanic
male walked back out to the same aforementioned vehicle and
retrieved what the CS believed to be an additional kilogram of
cocaine. Katrib told me that the CS told S/A Schmidt that, based on
past experience, he is familiar with the physical appearance of several
controlled substances, including cocaine, and marihuana.

Katrib told me that, he along with other Special Agents maintained
surveillance on the target residence, and did not see any additional
people or vehicles arrive or depart this location. Katrib told me that on
10/06/2011, at approximately 2140 hours, he spoke with Deputy
Curtis of the Harris County Sheriff’s Office K-9 Division. Katrib told
me that Deputy Curtis told him that he deployed his K-9 partner
“ANDOR” on the tan Chevy pick up truck identified by Texas license
plate number [ ] and that “ANDOR” alerted for the odor of narcotics.
Katrib told me that Deputy Curtis told him that “ANDOR” has been
and remains certified by the National Narcotics Detector Dog
Association NNDDA, in the detection of the odors of cocaine,
marihuana, MDMA, methamphetamine, and heroin . . . .

Once the warrant was granted, Katrib and other members of the team

searched the house and backyard. They found two kilograms of cocaine buried

under construction debris in the backyard. Katrib also identified a white substance

on Davila’s face and used a field test to determine that the powder was cocaine.

Davila was arrested and charged with possession with intent to deliver more

than 400 grams of cocaine. Before trial, Davila moved to suppress the evidence

collected pursuant to the search warrant, arguing that the warrant was based on

information gathered during an illegal raid of his house. At a pre-trial hearing on

the motion, four people testified: Special Agent Schmidt, Deputy Katrib, Davila’s

wife, and his daughter. The trial court denied the motion. Davila pleaded guilty
5
with an agreed recommendation on the punishment. Pursuant to the agreement, the

trial court assessed punishment at 25 years’ confinement.

Davila timely appealed the trial court’s denial of his motion to suppress.

Motion to Suppress

In his first issue, Davila contends that the trial court erred in denying his

motion to suppress evidence because, in obtaining the warrant used to uncover the

two kilograms of cocaine, law enforcement officials relied on information

collected illegally during a warrantless search of his house and a dog sniff of his

truck.

A. Standard of review

When a defendant challenges a trial court’s denial of a motion to suppress,

we review the trial court’s ruling for an abuse of discretion. Turrubiate v. State,

399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We give almost total deference to

the trial court’s determination of historical facts that depend on credibility and

demeanor. Id. We review de novo the trial court’s application of the law to the

facts if resolution of those ultimate questions does not turn on the evaluation of

credibility and demeanor. Id. When neither party requests findings of fact or

conclusions of law, as is the case here, we imply the necessary findings to support

the trial court’s ruling, so long as the evidence viewed in the light most favorable

to the trial court’s ruling supports those findings. State v. Garcia-Cantu, 253

6
S.W.3d 236, 241 (Tex. Crim. App. 2008); Jordan v. State, 394 S.W.3d 58, 61

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). We will uphold the trial court’s

ruling if it is “reasonably supported by the record and is correct on any theory of

law applicable to the case.” Turrubiate, 399 S.W.3d at 150. If a warrant is issued

on the basis of an affidavit that contained unlawfully obtained information, “the

evidence seized under the warrant is admissible only if the warrant clearly could

have been issued on the basis of the untainted information in the affidavit.”

Brackens v. State, 312 S.W.3d 831, 838 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d) (quotation omitted); see Brown v. State, 605 S.W.2d 572, 577 (Tex. Crim.

App. 1980).

We first consider whether the initial warrantless sweep of Davila’s house

was justified. If this initial search was justified, then the later-collected evidence

was admissible.

B. Legality of warrantless sweep

Davila argues that the State failed to meet its burden of demonstrating that

there were exigent circumstances that required an immediate, warrantless search of

his home. The State responds that law enforcement officials were justified in

securing Davila’s home without first obtaining a warrant because they had

concerns that the evidence would be destroyed.

7
The United States and Texas constitutions protect against unreasonable

searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. When law

enforcement does not have a warrant or consent to enter a residence, the search is

presumed unreasonable. See Juarez v. State, 758 S.W.2d 772, 775 (Tex. Crim.

App. 1988). “There is a strong preference for searches to be administered pursuant

to a warrant . . . [a search] without a judicially authorized warrant is presumptively

unreasonable.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

The law enforcement officers did not have consent to enter Davila’s house.

In circumstances like these, the warrant requirement may be set aside if the State

shows that (1) there was probable cause to enter the home and (2) an exigent

circumstance existed that required entry without a warrant. Id.; Carmen v. State,

358 S.W.3d 285, 292–93 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Davila

challenges only the exigent circumstances prong.

There are three categories of exigent circumstances: (1) aiding people whom

law enforcement officers reasonably believe require assistance, (2) protecting law

enforcement officers from people reasonably believed to be present, armed, and

dangerous, and (3) preventing the destruction of evidence or contraband. Gutierrez,

221 S.W.3d at 685; Carmen, 358 S.W.3d at 293. The State relies on the third

category.

8
For this category, the primary consideration is “whether there is proof that

the officer reasonably believed that removal or destruction of evidence was

imminent.” Turrubiate, 399 S.W.3d at 153. Courts also consider whether the

possessors of the contraband were aware that police were pursuing them, how

readily the contraband could be disposed, as well as police familiarity with

behavior characteristics of people involved in narcotics sale and distribution. Id. at

151.

Davila argues that the officers created the exigent circumstances and that

there was “no justification” for “round[ing] up” Davila and the other residents

before securing a warrant. Specifically, he argues that the sweep was unnecessary

to prevent destruction of evidence. Citing Turrubiate v. State, Davila argues that

the State did not meet its burden of offering “proof of imminent destruction based

on affirmative conduct by those in possession of narcotics . . . .” Turrubiate, 399

S.W.3d at 153. In Turrubiate, the Court held that there were no exigent

circumstances to search a house when police smelled marijuana, knocked-and-

announced their presence, and suspected that the people inside might destroy

contraband upon learning of their presence. Id. at 155. In Turrubiate, the deputy

conducting the search testified that he believed that an immediate, warrantless

search was required to “prevent [the marijuana] from being destroyed” and that if

he left the premises the evidence would be “available for destruction.” Id. at 149.

9
Mere suspicion was held insufficient evidence to merit an exigent circumstances

exception to the warrant requirement. Id. at 152–53 & n.4.

The State argues that law enforcement officers reasonably concluded that an

immediate search of Davila’s home was necessary to prevent evidence from being

disposed or moved. But information that would otherwise support a warrant does

not, in turn, justify a warrantless search. Cf. Hegdal v. State, 488 S.W.2d 782, 784

(Tex. Crim. App. 1972) (affirming legality of search warrant issued solely based

on information supplied by informant); State v. McLain, 337 S.W.3d 268, 273–74

(Tex. Crim. App. 2011) (upholding warrant relying on information from informant

that defendant possessed methamphetamine at residence and business).

Relying on the informant’s report that Davila possessed two kilograms of

cocaine and that Davila appeared “nervous [and] in a hurry,” Special Agent

Schmidt testified that he directed the warrantless sweep of the house because he

was concerned that Davila and others would destroy evidence. Schmidt and Katrib

also testified that, based on their experience with similar narcotics investigations,

the cocaine was readily disposable. Deputy Katrib testified that, based on over

1000 prior narcotic investigations, people typically employ weapons to protect the

amount of narcotics involved in this case and that the amount of cocaine may be

destroyed. Schmidt also stated that the geography of the street and the close

proximity of neighbors who were Davila’s “associates” would allow Davila to

10
easily move the cocaine. Based on these concerns, both Special Agent Schmidt and

Deputy Katrib insisted that a protective sweep was necessary to protect the

evidence from being destroyed or removed from the house.

The State did not, however, meet its burden of proving that the law

enforcement officers reasonably believed destruction or removal of the evidence

was imminent. See Turrubiate, 399 S.W.3d at 153. The State presented no

evidence that the law enforcement officers had a reasonable belief that, before the

sweep, Davila or anyone else in the house had reason to believe that law

enforcement agents were present or intended to enter the house. See, e.g., Price v.

State, 93 S.W.3d 358, 368 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)

(“The mere fact that drugs are involved does not give the police probable cause to

believe that evidence will be destroyed so as to justify an unannounced entry.”).

Additionally, there was no evidence that the officers discovered Davila attempting

to dispose of the evidence when they entered the home. Nor did the confidential

informant report that Davila and his accomplices were armed with weapons.

Turrubiate, 399 S.W.3d at 155. Like Turrubiate, the law enforcement officers here

suspected, but had no evidence of, imminent destruction or removal. See id.;

Gutierrez, 221 S.W.3d at 685. There were no exigent circumstances justifying the

warrantless search. We conclude that the sweep of the house constituted an

unreasonable search.

11
We now turn to consider whether—the unlawful sweep notwithstanding—

the trial court properly denied the motion to suppress evidence collected pursuant

to a search warrant issued after the illegal sweep of Davila’s home.

C. Affidavit in support of warrant

After sweeping the house, the law enforcement officers obtained a warrant

to search Davila’s house. During that search, they seized two kilograms of cocaine

from Davila’s backyard. Davila argues that warrant was issued based on

information collected during the illegal sweep of the house, including the dog sniff

of a truck in the driveway “performed in the midst of the raid . . . .” He argues the

evidence obtained pursuant to the warrant was “obtained in violation of the [law]”

and was inadmissible under article 38.23 of the Texas Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).

A properly-granted search warrant must be supported by an affidavit that

sets forth the facts establishing probable cause to issue the warrant. Wilson v. State,

98 S.W.3d 265, 270–71 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When

reviewing a magistrate’s decision to issue a warrant, courts apply a highly

deferential standard because of the constitutional preference for law enforcement

officials to obtain warrants. McLain, 337 S.W.3d at 271–72. Reviewing courts are

not charged with “rubber stamp[ing]” a magistrate’s decision to issue a warrant.

Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). “The duty of a

12
reviewing court . . . is simply to ensure that the magistrate had a substantial basis

for concluding that probable cause existed.” Id. The facts alleging probable cause

must sufficiently support a search warrant when viewed in light of the totality of

the circumstances. Ramos v. State, 31 S.W.3d 762, 764–65 (Tex. App.—Houston

[1st Dist.] 2000, no pet.). We inquire whether there are sufficient facts stated

within the four corners of the affidavit, 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. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007);

Ramos, 31 S.W.3d at 764–65. When the totality of the circumstances leads to the

conclusion that the object of the search is likely on the premises, the allegations are

sufficient. TEX. CODE CRIM. PROC. ANN. art. 18.01(b), (c) (West Supp. 2013);

Ramos, 31 S.W.3d at 764–65.

Evidence collected during an illegal search may not be used against a

criminal defendant unless it was collected in a manner “sufficiently distinguishable

to be purged of the primary taint.” Carmen, 358 S.W.3d at 293. This principle is

bolstered by the Texas Code of Criminal Procedure, which provides “[n]o evidence

obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the

United States of America, shall be admitted in evidence against the accused on the

trial of any criminal case.” TEX. CODE CRIM. PROC. ANN. art. 38.23(a). Here,

13
Davila contends that the two kilograms of cocaine were obtained in violation of

article 38.23 and, therefore, should not have been admitted into evidence.

Davila likens his circumstances to those in Wehrenberg v. State, 385 S.W.3d

715, 729 (Tex. App.—Fort Worth 2012), rev’d, 416 S.W.3d 458 (Tex. Crim. App.

2013) and argues that the federal “independent source” doctrine does not apply to

article 38.23. In Wehrenberg, the police had maintained surveillance of a residence

for about 30 days when a confidential informant reported that people inside of the

house were “‘fixing to’ cook methamphetamine.” Id. at 717. Based on the

informant’s report, the police conducted a warrantless “protective sweep” of the

house, handcuffed everyone inside the house, and placed them in the front yard. Id.

The police found no one cooking methamphetamine and no other evidence inside

the house. Id. After the sweep, an investigator submitted a warrant affidavit based

solely on facts made known to him by the confidential informant before the

warrantless sweep of the house. Id. at 727. Thus, like this case, the affidavit did not

disclose the warrantless protective sweep.

About one hour after the police had swept the house, a magistrate issued a

warrant to search the house. Id. at 717. After searching the house, the police

uncovered evidence of materials used to cook methamphetamine. Id. Based on the

results of the search, police arrested the defendant and charged him with criminal

possession of and intent to manufacture methamphetamine. Id. The defendant

14
moved to suppress the evidence collected pursuant to the warrant, arguing that the

illegal search, his detention, and his removal from the residence “tainted the

subsequently obtained search warrant” and that the warrant was not “based entirely

on information obtained before the illegal entry.” Id. at 718. Relying on the

independent source doctrine, the trial court denied the motion to suppress evidence

collected pursuant to the warrant. Id. at 717.

The court of appeals held that evidence collected pursuant to the warrant

was inadmissible because police had first conducted an illegal, warrantless search

of the house. Id. at 726–27. The court acknowledged that the circumstances of the

case “would appear to fall squarely within the parameters of the independent

source doctrine,” but ultimately refused to affirm the trial court’s denial of the

defendant’s motion to suppress based upon that doctrine as an exception to article

38.23 of the Texas Code of Criminal Procedure. Id. at 727–29.

The Texas Court of Criminal Appeals reversed, concluding that the federal

independent source doctrine does not offend article 38.23 of the Texas Code of

Criminal Procedure and that the “court of appeals erred by rejecting that doctrine

as a basis for upholding the trial court's suppression ruling.” Wehrenberg v. State,

416 S.W.3d 458, 461, 468 (Tex. Crim. App. 2013); see TEX. CODE CRIM. PROC.

ANN. art. 38.23. The Court reasoned that the federal independent source doctrine is

compatible with article 38.23 of the Texas Code of Criminal Procedure, and that

15
“[a]t its core, the independent source doctrine provides that evidence derived from

or obtained from a lawful source, separate and apart from any illegal conduct by

law enforcement, is not subject to exclusion.” Id. at 465. Therefore, the primary

inquiry in determining whether evidence should be suppressed when there is

unlawful police conduct before the issuance of the warrant is whether the

challenged evidence “was obtained by independent legal means.” Id. (citing United

States v. May, 214 F.3d 900, 906 (7th Cir. 2000)). Accordingly, the Court

remanded the case for the court of appeals to consider whether the trial court

erroneously relied upon the independent source doctrine in denying the motion to

suppress. Id. at 473. On remand, the court of appeals concluded that the trial court

did not err in denying the motion to suppress because the confidential informant’s

information provided “a source independent of the information that the police may

have gleaned during their initial warrantless entry into the residence . . . .”

Wehrenberg v. State, Nos. 02-11-00560-CR, 02-11-00561-CR, 2014 WL 890320,

at *2 (Tex. App.—Fort Worth Mar. 6, 2014, pet. filed) (mem. op., not designated

for publication).

Similarly, none of the information utilized to obtain the warrant to search

Davila’s house came from the prior, unlawful sweep of the house. Information

from a confidential informant alone may establish probable cause, provided that it

contains “some indicia of reliability or be reasonably corroborated by police before

16
it can be used to justify a search.” Blake v. State, 125 S.W.3d 717, 727 (Tex.

App.—Houston [1st Dist.] 2003, no pet.); see McLain, 337 S.W.3d at 273 (holding

probable cause existed based upon informant’s report that he saw drugs 72 hours

before entry); Hegdal, 488 S.W.2d at 784 (finding probable cause based solely on

confidential informant’s report that he saw methamphetamine at location). In

Blake, a warrant affidavit gave the magistrate a “substantial basis” to conclude that

probable cause existed when the affidavit included information from one

confidential informant who “provided specific reasons why he/she believed” that

the defendant was involved in criminal activity and the informant had previously

provided true information leading to the arrest of other defendants and seizure of

narcotics. Blake, 125 S.W.3d at 727 (noting that affidavit established informant’s

reliability and credibility and, therefore, corroboration “was not necessary”).

The affidavit in support of the warrant to search Davila’s house included

sufficient information from which the magistrate could determine the informant’s

reliability and credibility. Specifically, the affidavit stated that the informant had

“on several occasions” provided “true and correct” information that led to the

arrest of other defendants and the seizure of narcotics. See Blake, 125 S.W.3d at

727. The affidavit also included the informant’s report of observing in the house

two kilograms of cocaine and confirmed Davila’s intent to sell the cocaine to the

informant. Based on the informant’s statement, under the totality of the

17
circumstances, there was a “fair probability” or “substantial chance” that the

cocaine would be found in Davila’s house. See Flores, 319 S.W.3d at 702–03

(concluding that warrant contained sufficient facts to establish probable cause

when anonymous informant had seen drugs inside the house, residue from house

garbage can tested positive for marijuana, and marijuana stems were found in

garbage can in front of house).

The affidavit in support of the warrant also stated that a dog sniff of the

pick-up truck parked in the driveway revealed an odor of drugs. Even assuming

that the dog sniff constituted an unreasonable search, the dog sniff alone would not

invalidate the warrant and require suppression of the evidence collected during the

warranted search of Davila’s house, if the facts were otherwise sufficient to grant

the warrant.2 When reviewing whether an affidavit for a warrant provided a basis

for finding probable cause, we do not consider each fact in isolation; we consider

the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.

2317, 2332 (1983); Rodriguez, 232 S.W.3d 59–60; Ramos, 31 S.W.3d at 764–65.

While a magistrate may not issue a search warrant based upon illegally obtained

2
The Fourth Amendment protects one from an unreasonable search of his home and
“curtilage,” which has been interpreted to include both a side garden and a front
porch. See Florida v. Jardines, — U.S. —, 133 S. Ct. 1409, 1414–15 (2013).
While Davila, in a one-sentence footnote contends that the dog sniff of his car
amounted to an unreasonable search, he does not cite any authority supporting his
position that the dog sniff conducted under these circumstances constitutes an
unreasonable search under the Fourth Amendment.

18
information, “tainted” information will not invalidate an otherwise valid warrant.

Castillo v. State, 818 S.W.2d 803, 805 (Tex. Crim. App. 1991) (“[I]f the tainted

information was clearly unnecessary to establish probable cause for the search

warrant, then the defendant could not have been harmed by the inclusion of the

tainted information in the affidavit.”); see Gates, 462 U.S. at 238; 103 S. Ct. at

2332; Brackens, 312 S.W.3d at 838; see also State v. Bridges, 977 S.W.2d 628,

632 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“The relevant inquiry into

probable cause based upon a tainted affidavit is to put aside the tainted allegations

and determine whether the independently acquired and lawful information clearly

established probable cause.”).

We have already concluded that the information from the confidential

informant stated in the affidavit was sufficient for a magistrate to conclude that

there was probable cause to search Davila’s home. Because the affidavit contained

sufficient allegations that were independent of any tainted information, we

conclude that the affidavit established a “fair probability” that cocaine would likely

be found upon searching Davila’s home. See Flores, 319 S.W.3d at 702.

Accordingly, the evidence collected was pursuant to a properly-granted

search warrant and, therefore, we hold that the trial court did not err in denying

Davila’s motion to suppress.

We overrule Davila’s first issue.

19
Court Costs

In his second issue, Davila argues that the trial court erroneously assessed

$294 in court costs. He argues that there is no evidence to support the calculation

of these costs.

A. Standard of review

A criminal defendant must pay certain statutorily mandated costs and fees,

which vary depending on the type of offense, the underlying facts, and the

procedural history of the case. See TEX. LOC. GOV’T CODE ANN. § 133.102 (West

Supp. 2013) (listing court costs upon conviction). The district court clerk must

keep a record of each fee or item of cost charged for a service rendered in a

criminal action or proceeding. TEX. CODE CRIM. PROC. ANN. art. 103.009(a)(1)

(West 2006). If a criminal action is appealed, an officer of the court must certify

and sign a bill of costs and send it to the appellate court. Id. art. 103.006 (West

2006).

Court costs do not constitute a part of the guilt or sentencing of a criminal

defendant; they are “a nonpunitive recoupment of the costs of judicial resources

expended in connection with the trial of the case.” Johnson v. State, 423 S.W.3d

385, 390 (Tex. Crim. App. 2014) (citation omitted); see also Armstrong v. State,

340 S.W.3d 759, 766–67 (Tex. Crim. App. 2011). Therefore, we review the

assessment of court costs to determine whether there is a basis for the cost; we do

20
not apply an evidentiary-sufficiency review. Johnson, 423 S.W.3d at 390; see

Cardenas v. State, 423 S.W.3d 396, 398 (Tex. Crim. App. 2014).

B. Court costs for conviction of felony possession with intent to deliver 400
grams of cocaine

Davila argues that there is no evidence of how the costs were calculated and

no evidence that the costs were available for review before the trial court entered

its judgment.

When the record includes no bill of costs, under established precedent from

this court, the JIMS “Cost Bill Assessment” meets the requirements of article

103.001 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 103.001 (West 2006); Cardenas, 423 S.W.3d at 398. We consider the

JIMS record evidence that both the trial court and the parties had constructive

notice of court costs to be imposed before the judgment was entered. Cardenas,

423 S.W.3d at 398–99. We review the record to determine whether there is any

basis to uphold the costs. Id.; Johnson, 423 S.W.3d at 390.

The first page of the “Cost Bill Assessment” lists several costs, including:

 $5.00 “commitment fee” (See TEX. CODE CRIM. PROC. ANN.
art. 102.011(a)(B)(6) (West Supp. 2013) (“A defendant
convicted of a felony or a misdemeanor shall pay . . . $5 for
commitment or release)).

 $5.00 “release fee” (See TEX. CODE CRIM. PROC. ANN art.
102.011(a)(B)(6) (West Supp. 2013)).

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 $5.00 “arrest without a warrant” (See TEX. CODE CRIM.
PROC. ANN. art. 102.011(a)(1) (West Supp. 2013)).

 $40.00 “clerks fee” (See TEX. CODE CRIM. PROC. ANN art.
102.005(a) (West 2006) (“A defendant convicted of an
offense in [any court] . . . shall pay for the services of the
clerk of the court a fee of $40.”)).

 $15.00 “sheriffs fee” (See TEX. CODE CRIM. PROC. ANN art.
102.011(d) (West Supp. 2013)).

 $5.00 “security fee” (See TEX. CODE CRIM. PROC. ANN. art.
102.017(a) (West 2006) (“A defendant convicted of a felony
offense in a district court shall pay a $5 security fee as a cost
of court.”)).

 $133.00 “consolidated court cost” (See TEX. LOCAL GOV’T
CODE ANN. § 133.102(a)(1) (West Supp. 2013) (“A person
convicted of an offense shall pay as a court cost, in addition
to all other costs . . . $133 on conviction of a felony.”)).

 $4.00 “jury reimbursement fee” (See TEX. CODE CRIM.
PROC. ANN. art. 102.0045(a) (West Supp. 2013) (“A person
convicted of any offense, other than an offense relating to a
pedestrian or the parking of a motor vehicle, shall pay as a
court cost, in addition to all other costs, a fee of $4 to be
used to reimburse counties for the cost of juror services . . .
.”)).

 $25.00 “district court records preservation” (See TEX. CODE
CRIM. PROC. ANN art. 102.005(f) (West 2006) (“A defendant
convicted of an offense in a county court, a county court at
law, or a district court shall pay a fee of $25 for records
management and preservation services performed by the
county. . . .”)).

 $60.00 “drug court program fee” (See TEX. CODE CRIM.
PROC. ANN. art. 102.0178(a) (West Supp. 2013) (“In
addition to other costs on conviction imposed by this
chapter, a person shall pay $60 as a court cost on conviction

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of an offense punishable as a Class B misdemeanor or any
higher category of [listed] offense[s].”)).

 $2.00 “support of indigent defense” (See TEX. LOCAL GOV’T
CODE Ann. § 133.107(a) (West Supp. 2013) (“A person
convicted of any offense, other than an offense relating to a
pedestrian or the parking of a motor vehicle, shall pay as a
court cost, in addition to other costs, a fee of $2 to be used to
fund indigent defense representation . . . .”)).

 $6.00 “support judiciary fee” (See TEX. LOCAL GOV’T CODE
ANN. § 133.105(a) (West 2008) (“A person convicted of any
offense, other than an offense relating to a pedestrian or the
parking of a motor vehicle, shall pay as a court cost, in
addition to all other costs, a fee of $6 to be used for court-
related purposes for the support of the judiciary.”)).

 $4.00 “court technology fund” (See TEX. CODE CRIM. PROC.
ANN. art. 102.0169(a) (West Supp. 2013) (“A defendant
convicted of a criminal offense in a county court, statutory
county court, or district court shall pay a $4 county and
district court technology fee as a cost of court.”)).

Based on the costs listed in the cost bill assessment, the record contains a

sufficient basis for imposing court costs in the amount of $309. The record, thus,

supports charging at least $294 in costs as directed by the statutes and rules

referenced above. See Thomas v. State, No. 01-12-00487-CR, 2013 WL 1163980,

at *4 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (upholding court

costs of $274 when bill of costs totaled $309 due in court costs).

Accordingly, we overrule Davila’s second issue.

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Conclusion

Having overruled both of Davila’s issues, we affirm.

Harvey Brown
Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Sharp, dissenting. Dissent to follow.

Publish. TEX. R. APP. P. 47.2(b).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3101451. Public record. Not legal advice.