Billy Ray Foster v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Billy Ray Foster Appellant Vs. No. 11-04-00252-CR -- Appeal from Taylor County State of Texas Appellee Billy Ray Foster appeals his conviction by a jury for the offense of burglary of a habitation. The trial court assessed his punishment at 60 years in the Texas Department of Criminal Justice -- Institutional Division. Foster contends in three issues that the trial court improperly denied his motion to suppress a search warrant, that the evidence is insufficient because it failed to establish that his possession of recently stolen property was unexplained, and that the trial court improperly denied his motion for mistrial following the improper introduction of extraneous offenses. We affirm. Foster contends in issue one that the trial court erred in denying his motion to suppress evidence obtained during a search of his residence, asserting that the affidavit in support of the search warrant was insufficient. As a reviewing court, we must give deference to the trial court=s determination of probable cause and affirm that decision Aso long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing.@ Swearingen v. State, 143 S.W.3d 808, 810 (Tex.Cr.App.2004) (quoting Illinois v. Gates, 462 U.S. 213, 236-37 (1983). In our review, we are to consider the totality of the circumstances as presented to the magistrate in the affidavit. Illinois v. Gates, supra at 238. Craig Jordan, a detective with the Abilene Police Department, sought a search warrant for Foster=s residence and swore in the affidavit supporting the warrant that he believed that certain stolen property, which he enumerated in great detail, would be found at Foster=s residence. He described in detail jewelry that had been taken in the burglary and mentioned a parrot that said, ARemember the Alamo.@ He based his assertion that he had probable cause for his belief on the complainant=s description of the property and on the fact that the description of property seen in Foster=s residence given by three confidential informants corresponded to the complainant=s description of the property that had been taken. He also swore that none of the informants had been convicted of a felony offense and that each confidential informant enjoyed a good reputation within the community for being truthful. He did not relate the basis for his assertion that the informants enjoyed a good reputation within the community for being truthful. Foster asserts that evidence of the stolen property recovered in the search should have been suppressed because the affidavit does not show sufficient corroboration for three confidential informants upon whom Detective Jordan had not previously relied. He states that it failed to show sufficient independent investigation to corroborate facts given by them. He says that the affidavit does not mention how the detective concluded that they enjoy a reputation in the community as being truthful or the number of times the informants had been to the house or seen stolen property in the house. He also mentions that the affidavit does not disclose how the informants knew the residents of the house, how they gained access to the house, or how long the residents might have lived there. In asserting that these Adeficiencies@ are fatal to the sufficiency of the warrant, he relies upon the opinion in Davis v. State, 144 S.W.3d 192,198-99 (Tex.App. - Fort Worth 2004, pet=n ref=d). The reliability of an informant may sometimes be determined by the accuracy of some of the information provided by the informant. See Illinois v. Gates, supra at 242. We hold that the fact that there was more than one confidential, but not anonymous, informant and that each one gave a description of the stolen property he or she had seen in the residence that corresponded with the property taken in the burglary of the residence, together with all the other facts and circumstances as set forth in the affidavit, was sufficient to suggest their reliability and to support the magistrate=s determination of probable cause. We find Davis to be distinguishable because it involved only one confidential informant and did not involve an informant who gave an accurate description of property that had been taken in a burglary. Id. at 198. We overrule issue one. Foster asserts in issue two that the evidence is insufficient to support his conviction for burglary of a habitation because there is no evidence that he entered the home of the complainant nor is there evidence that he did not explain his possession of property taken in the burglary of the home. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004). Prior to the execution of the search warrant, Foster denied having possession of stolen property. There is no indication that he was asked to give an explanation after the property was discovered in his residence, nor is there any evidence that he gave such an explanation. We hold that the evidence that a burglary was committed and that Foster was in recent possession of property stolen in the burglary, together with no evidence of a reasonable explanation for Foster=s possession of the property given at the time of his arrest or at the time he was found to be in possession of the stolen property, is legally and factually sufficient to support Foster=s conviction. See Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App.1983). Foster asserts that, in order to support an inference that he was guilty of burglary, the State had the burden to show that he was given the opportunity but failed to give a reasonable explanation for his possession of the stolen property, primarily relying upon Price v. State, 902 S.W.2d 677, 680 (Tex.App. - Amarillo 1995, no pet=n), and Hood v. State, 860 S.W.2d 931, 937 (Tex.App. - Texarkana 1993, no pet=n), which in turn relied upon Moreno v. State, 6 S.W. 299 (Tex.1887). These opinions support Foster=s assertion and would appear to be in conflict with this opinion. However, to the extent that those opinions might be in conflict with our holding, we choose to follow Hardesty, in which the record was silent as to whether the defendant had given a reasonable explanation for his possession of the stolen property, because it is an opinion of the Texas Court of Appeals and a more recent opinion than Moreno, a decision of a predecessor court. See Hardesty v. State, supra at 75. We overrule Foster=s second issue. Foster urges in his third issue that the trial court erred in denying his motion for mistrial after Detective Jordan mentioned in the presence of the jury that Foster had been arrested several times for burglary. Detective Jordan, in a nonresponsive answer, mentioned that Foster had been arrested several times for burglary. Foster=s counsel immediately made a hearsay objection, which the court sustained, and then made a motion for mistrial, which the court denied. Sometime later in the proceeding, Foster=s counsel made a motion to instruct the jury to disregard Detective Jordan=s testimony concerning any extraneous offenses. The trial court instructed the jury to disregard the testimony, but denied Foster=s renewed motion for mistrial. Foster says that the trial court erred in denying his motion for mistrial because the testimony was of such a nature that an instruction to disregard could not cure the prejudicial nature of the testimony and that the trial court=s ruling was in violation of his rights under the United States Constitution and Texas law. We hold that the trial court did not err in denying Foster=s motion for mistrial because the court=s instruction to disregard was sufficient to cure any error. See Thompson v. State, 486 S.W.2d 343, 344 (Tex.Cr.App.1972). We overrule Foster=s third issue. The judgment is affirmed. PER CURIAM September 29, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Wright, J., and McCall, J., and Hill, J.[1] [1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.