TERRYL SHAWN RICHARD v. THE STATE OF TEXAS (2026)

OPINION

Appellant Terryl Shawn Richard appeals two judgments of conviction by jury for possession of a controlled substance with intent to deliver.¹ Collectively, he asserts four issues: (1) no evidence supports the trial court's deadly weapon finding; (2) subjecting him to two sentences for two offenses violates the prohibition against double jeopardy because his drug possession constituted only a single offense; (3) the trial court erred in denying his pre-trial motion to suppress evidence; and (4) no evidence supports the jury's finding of intent to deliver.

We affirm.

Background

A grand jury indicted appellant on two charges of possession of a controlled substance with intent to deliver, and both charges were tried together by agreement. See Tex. Health & Safety Code § 481.112. The following evidence was presented at appellant's jury trial.

Brazoria County Sheriff's Office (“BCSO”) Narcotics Investigator Zachary Jacoby began investigating appellant after interviewing an inmate, “Jane Doe #1,” at the Brazoria County Jail on July 10, 2024. Doe told Investigator Jacoby that appellant was staying at a local Motel 6 and selling drugs. On the morning of July 11, Investigator Jacoby went to the motel, where he discovered that appellant had rented a room for 77 days. He saw appellant and a female leave the motel in a car reportedly belonging to appellant. The investigator contacted his supervisor, and other law enforcement personnel conducted a traffic stop after observing appellant commit several traffic law violations.

BCSO Deputy Jessie Saldivar conducted the traffic stop. He smelled marijuana emanating from appellant's car. Appellant was the driver and Adriana Rodriguez was in the passenger's seat. Deputy Saldivar separated and questioned them. Appellant told the deputy that he had smoked marijuana around the vehicle the night before and was taking Rodriguez to her home. Rodriguez said there were pills in her purse, and Deputy Saldivar retrieved an alprazolam pill, an “unknown brown pill,” about two grams of marijuana, and nine round blue pills scored with “M30.” A lab analyst testified that the nine blue pills contained fentanyl and weighed about 1.25 grams. Rodriguez told Deputy Saldivar that appellant handed her the pills and told her to put them in her purse when appellant saw the police car's lights approaching. Rodriguez added that appellant sells drugs to her, and she offered information about evidence located inside the Motel 6 room. She told Deputy Saldivar that a safe in the motel room contained drugs and firearms. Rodriguez also told the deputy that appellant had contraband on his person.²

Another BCSO deputy, Rohandy Sanchez, took appellant to the Brazoria County Jail and conducted a strip search. The deputy recovered a green leafy substance and a brown bottle of pills from appellant's person, which later analysis showed contained forty-one round blue tablets imprinted with “M30” and weighing over 5.5 grams. These forty-one blue M30 pills also tested positive for fentanyl.

Deputy Saldivar communicated with other investigators to secure a search warrant for appellant's Motel 6 room. Investigator Jacoby obtained and executed the search warrant. During the search, investigators recovered drug paraphernalia, including a digital scale, and three firearms, one of which was stolen. Investigators also recovered carisoprodol, alprazolam, and 1,123 pills laced with fentanyl in a Ziploc bag. Investigator Jacoby further testified that he found “a large amount” of evidence of drug dealing activity on appellant's phone and that some of the prior dealings involved “at least one of the informants used in this case.”

A BCSO Crime Laboratory analyst testified that the nine blue pills containing fentanyl recovered during the traffic stop weighed over one gram. The forty-one blue pills found on appellant's person after the traffic stop weighed over 5.5 grams. These two quantities of pills formed the basis of the indictment in cause number 100807-CR.³ Another analyst testified that the 1,123 blue pills recovered from the motel room weighed over 150 grams; these formed the basis of the indictment in cause number 100808-CR.⁴

The jury found appellant guilty on both charged offenses. After finding two enhancement allegations for previous convictions true, the jury assessed appellant's punishment at seventy-five years' confinement in cause number 100807-CR and confinement for life in cause number 100808-CR. The trial court ordered the sentences to run concurrently.

Appellant timely appealed.

Analysis

A. Sufficiency of Evidence of Intent to Deliver

We begin with appellant's second issue in cause number 100807-CR and fourth issue in cause number 100808-CR, in which he claims that the evidence is legally insufficient to support his convictions because, if sustained, those issues would afford the greatest relief. See Tex. R. App. P. 43.3; Campbell v. State, 125 S.W.3d 1, 4 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.). When reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine whether a rational jury could have found the elements of the offense beyond a reasonable doubt. See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); Jackson v. State, 530 S.W.3d 738, 741 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We consider all evidence in the trial record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Although we consider everything presented at trial, we do not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. Jackson, 530 S.W.3d at 741-42 (citing Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)).

The elements of possession of a controlled substance with intent to deliver are: (1) the defendant exercised care, custody, control, or management over a controlled substance; (2) the defendant intended to deliver the controlled substance to another person; and (3) the defendant knew that the substance in his or her possession was a controlled substance. See Tex. Health & Safety Code § 481.112.

Appellant challenges only the “intent to deliver” element. Intent to deliver narcotics may be proved by circumstantial evidence, including “the quantity of the drugs possessed.” Espino-Cruz v. State, 586 S.W.3d 538, 546 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) (citing Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd)). Factors that a reviewing court may consider in determining intent to deliver include: (1) the nature of the location at which the defendant was arrested; (2) the quantity of the contraband in the defendant's possession; (3) the manner of the packaging of the contraband; (4) the presence of or lack of narcotics paraphernalia for either use or sale; (5) large amounts of cash; and (6) the defendant's status as a narcotics user. Id. The quantity of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Id. Finally, expert testimony by experienced law enforcement officers may be used to establish a defendant's intent to deliver. Id.

We first consider whether a rational factfinder could find beyond a reasonable doubt that appellant had an “intent to deliver” the pills found during the traffic stop and the later search of appellant's person. Rodriguez specifically stated both to the officer during the arrest and to the jury when she testified that appellant sold fentanyl pills to her, or that she heard him say he sells pills. This is direct evidence that appellant had sold fentanyl pills, which in turn supports an inference that he had an intent to deliver similar pills in his possession or control. The nature of fentanyl itself is also quite relevant. Fentanyl is an incredibly powerful opioid, “100 to 150 times more powerful than morphine.” Jimenez v. State, No. 02-23-00348-CR, 2025 WL 211319, at *3 (Tex. App.—Fort Worth Jan. 16, 2025, no pet.) (mem. op., not designated for publication). “When fentanyl is administered properly [for legitimate medical purposes], the patient receives only micrograms—which is one-thousandth of a milligram, which is itself one thousandth of a gram—of the substance.” Id. All the pills found during the traffic stop and the later search of appellant's person were round blue pills scored “M30,” and all of them tested positive for fentanyl, just like the extremely large quantity of pills found in appellant's hotel room. Additionally, the forty-one pills found on appellant's person weighed over five grams, an amount that is not consistent with personal use, given fentanyl's potency. They were also packaged in a pill bottle that was consistent with the bottles found in appellant's motel room.

Further, police found more than just fentanyl during the traffic stop: Deputy Saldivar also found an alprazolam pill, an unknown brown pill, and approximately two grams of marijuana. Deputy Saldivar agreed that this evidence gave him reason to believe that the drugs found during the traffic stop were “for more than just personal consumption”:

Well, for one, you have ․ different types of narcotics. Most people stick with -- you know, some people just smoke marijuana. Some people just smoke methamphetamine. They don't want to go back to smoking methamphetamine, then marijuana. It's a downer and an upper. It's just not common; right? So they normally just buy what they use.

So if you buy multiple -- of if you're having multiple different types, that's a red flag.

Considering the relevant factors, we conclude the evidence is legally sufficient to support the jury's affirmative finding on the “intent to deliver” element of the offense charged in cause number 100807-CR.⁵

We reach a similar conclusion with respect to the extremely large quantity of fentanyl pills found during the search of appellant's motel room. There, investigators found 1,123 round blue pills imprinted with “M30” in a Ziploc bag, an amount undoubtedly inconsistent with personal use. These pills weighed over 150 grams, which Investigator Jacoby testified was a “distribution level” of fentanyl. During the search, drug paraphernalia and carisoprodol, alprazolam, and another batch of “M30” blue pills were recovered.⁶ Investigator Jacoby stated that the brown bottles with fentanyl pills found in the motel room were similar to the bottle containing fentanyl pills found on appellant's person. According to Investigator Jacoby, narcotics dealers generally possess these items to weigh and protect contraband. Finally, appellant's cell phone contained messages from months before the arrest involving the pills and at least one of the informants, with quantity and pricing discussed.

Considering this evidence in the light most favorable to the verdict, a rational trier of fact could have found the intent-to-deliver element beyond a reasonable doubt with respect to the offense charged in cause number 100808-CR. See Espino-Cruz, 586 S.W.3d at 546; see also Moreno, 195 S.W.3d at 326-27; Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (explaining that same-transaction contextual evidence may provide proof of intent where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony ․ of any one of them cannot be given without showing the others” (internal quotations and citation omitted)); Payton v. State, 830 S.W.2d 722, 726, 729 (Tex. App.—Houston [14th Dist.] 1992, no pet.) (holding that evidence that appellant sold cocaine two days before his arrest was relevant to whether he possessed the cocaine with intent to deliver).

Accordingly, we overrule appellant's issues challenging the legal sufficiency of the evidence of the intent-to-deliver element.

B. Deadly Weapon Finding in Cause Number 100808-CR

In his first issue in cause number 100808-CR, appellant challenges the jury's deadly weapon finding that appellant used a firearm in the commission of the offense. This argument applies only to appellant's conviction under Health and Safety Code section 481.112(d). We evaluate the sufficiency of the evidence to support a deadly weapon finding in the same way that we evaluate the sufficiency of evidence generally. See Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009).

A deadly weapon is defined as either “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” Tex. Penal Code § 1.07(a)(17). The weapons found in the motel room were firearms, meeting the definition of a deadly weapon. The question here is whether a rational trier of fact could have found beyond a reasonable doubt that a firearm was used or exhibited in the commission of the offense.

In Patterson, the Court of Criminal Appeals explained that “use” could mean “any employment of a deadly weapon, even simple possession, if such possession facilitates the associated felony.” Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). The court further explained that “exhibit” means that “the weapon was consciously shown or displayed during the commission of the offense.” Id. Therefore, “one can ‘use’ a deadly weapon without exhibiting it,” but one cannot exhibit a deadly weapon without using it. Id.

Appellant argues that because he was not present in the motel room when police found the firearms pursuant to the search, he could not have used or exhibited them. Appellant is correct that he could not have “exhibited” the deadly weapon because he was not physically present at the location at the relevant time to consciously show or display the weapon. Still, a deadly weapon finding will be upheld if a rational factfinder could have found that appellant used the weapon “to facilitate his possession and distribution” of narcotics. See Coleman v. State, 145 S.W.3d 649, 655 (Tex. Crim. App. 2004). Here, a reasonable factfinder could have found that appellant “used” the weapons under this standard. As in Coleman, narcotics and a firearm were found at appellant's place of residence,⁷ which is sufficient to support a deadly weapon finding. Id. (“As the trial judge in Appellant's case instructed the jury, ‘during the commission of the offense’ in a drug possession case means just that: while in possession of drugs with intent to deliver them, the defendant is committing the offense. It is irrelevant that Appellant was not in the residence at the time the officers discovered the weapons.”); see also Patterson, 769 S.W.2d at 941 (explaining that appellant's firearm was used to protect his narcotics and his cash).

Further, when firearms are recovered together with a large amount of narcotics, a deadly weapon finding may be affirmed. See Gale v. State, 998 S.W.2d 221, 226 (Tex. Crim. App. 1999). In Gale, multiple firearms were found along with 20 pounds of marijuana at the appellant's residence. Id. The court held that the fact firearms and ammunition were found together with a distribution amount of marijuana was sufficient evidence for a rational factfinder to determine that the weapons were used to facilitate the possession of marijuana. Id. Here, as in Gale, the firearms were found together with a distribution amount of narcotics.

In sum, viewing the facts in the light most favorable to the verdict, the evidence sufficiently supports an affirmative finding that appellant used a deadly weapon during the commission of the offense. The jury could have reasonably believed that the firearms protected or facilitated appellant's possession of the narcotics with intent to deliver.

We overrule appellant's issue.

C. Double Jeopardy

Appellant argues in both cases that his possession of narcotics constitutes only a single offense and that being convicted and punished for two separate offenses violates the Double Jeopardy Clause in the Fifth Amendment of the United States Constitution. Appellant's double jeopardy argument presents purely a legal question, which we decide as a matter of law. State v. Johnson, 948 S.W.2d 39, 40 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

We first address the State's assertion that appellant did not preserve his double jeopardy complaint. To preserve error, a defendant must raise a double jeopardy objection no later than when the guilt-innocence charge is submitted to the jury. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000). Under rule 33.1, he was required to state the objection with sufficient specificity to make the court aware of his complaint and obtain an express or implicit ruling on the objection. Tex. R. App. P. 33.1(a).

Here, appellant raised the double jeopardy issue during a pre-trial exchange with the court about joining the two cause numbers in one trial:

[Appellant's Counsel]: Judge, we have just signed and turned in -- filed the State's Motion for Joinder, which was signed by defense counsel as well as the defendant; and we have agreed to join these cases for trial but would specifically reserve the right to make for our --there's an argument about -- related to the double jeopardy of these offenses that are the exact same offenses -- charged as the exact same offense, the exact same day.

THE COURT: Okay. So the Defense is requesting to preserve any argument as to double jeopardy for appellate purposes.

[Appellant's Counsel]: Yes, ma'am.

THE COURT: All right. Y'all ready for the jury?

[Appellant's Counsel]: Yes.

The record shows that the court understood the nature of appellant's objection and that he wished to “reserve his right” to complain on double jeopardy grounds because, he asserted, the two charges were based on the “same offense.” This is the same argument he asserts in this court. Although appellant did not obtain an express ruling on the double jeopardy objection, the trial court proceeded with a single trial on the two charged offenses over objection, which on this record is likely sufficient to constitute an implicit ruling on the objection. See Tex. R. App. P. 33.1(a).

Assuming error is preserved—or if not preserved, that appellant may raise the argument for the first time on appeal nonetheless ⁸ —we conclude that appellant's double jeopardy argument lacks merit.

The Double Jeopardy Clause in the Fifth Amendment of the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. It applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). There are three types of double jeopardy protections: (1) a second prosecution for the same offense following acquittal; (2) a second prosecution for the same offense following conviction; and (3) multiple punishments for the same offense. Ex parte Milner, 394 S.W.3d 502, 506 (Tex. Crim. App. 2013) (citing Brown v. Ohio, 432 U.S. 161, 164-65 (1977)); Banks v. State, 494 S.W.3d 883, 889 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). The present appeal involves the third type. Appellant argues that he was subject to multiple punishments for the same offense.

In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court addressed the propriety of multiple punishments assessed against a defendant, in a single proceeding, for his multiple violations of the same narcotics statute by different acts. The court set out the double jeopardy test for “sameness” in these circumstances: “[t]he test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately․ If the latter, there can be but one penalty.” Id. at 302. The question is whether the “convictions are based on the same act” or whether each violation is predicated on a separate act. Banks, 494 S.W.3d at 890. The Court of Criminal Appeals has held that multiple punishments are permissible when there are multiple “different and discrete acts” with separate criminal impulses. Guerrero v. State, 305 S.W.3d 546, 553-54 (Tex. Crim. App. 2009). Under Blockburger, the test “hinges on the legislative intent of the statute at issue.” Lopez v. State, 108 S.W.3d 293, 296 (Tex. Crim. App. 2003).

In Ex parte Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999), the high court articulated a non-exclusive list of factors to consider when examining if two offenses are the same in the context of multiple punishment. Id. at 814. These factors included: (1) whether offenses are in the same statutory section; (2) whether the offenses are phrased in the alternative; (3) whether the offenses are named similarly; (4) whether the offenses have common punishment ranges; (5) whether the offenses have a common focus; (6) whether the common focus tends to indicate a single instance of conduct; (7) whether the elements that differ between the two offenses can be considered the same under an imputed theory of liability that would result in the offenses being considered the same under Blockburger; and (8) whether there is legislative history containing an articulation of an intent to treat offenses as the same for double jeopardy purposes. Id. The court further explained that the common-focus factor includes whether the gravamen of the offenses are the same. Id.

Appellant was convicted under Health and Safety Code subsections 481.112(c) and (d). Tex. Health & Safety Code §§ 481.112(c), (d). This statute states in relevant part:

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.

․

(c) An offense under subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

(d) An offense under subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.

Id.

In possession-oriented offenses, the proscribed item is the allowable unit of prosecution. Ex parte Gonzalez, 147 S.W.3d 474, 477-78 (Tex. App.—San Antonio 2004, pet. ref'd), cert. denied, 546 U.S. 1182 (2006); see also Watson v. State, 900 S.W.2d 60, 62 (Tex. Crim. App. 1995) (holding that possession of two different Penalty 1 substances, i.e., heroin and cocaine, with intent to deliver constituted two separate offenses). Thus, in this case the allowable unit of prosecution is the controlled substance.

Here, the drug seizures took place at different locations, at different times, and under different legal processes—one resulting from a seizure during a traffic stop and one resulting from the execution of a search warrant at appellant's de facto residence. They also involved separately identifiable quantities of the controlled substance at different locations, each quantum of which supports a separate and independent offense under the statute's relevant subsections. Appellant was charged accordingly under two separate subsections of the statute—one charge based on possession with intent to deliver a particular quantity of the substance found during the traffic stop and the search of appellant's person, which the legislature has deemed a second-degree felony (section 481.112(c)), and another charge based on possession with intent to deliver a separate and greater amount of the substance found in his hotel room, which the legislature has deemed a first-degree felony (section 481.112(d)). The punishment ranges differ for each offense.

Under these circumstances, we conclude that appellant was not convicted of “more offenses than the legislature intended”⁹ based on the plain language of section 481.112. Cf., e.g., Campbell v. State, 149 S.W.3d 149, 155 (Tex. Crim. App. 2004) (possession of a small amount of drugs in one location was not a lesser included offense of possession with intent to distribute a larger quantity of drugs in another location); see also Guerrero v. State, 305 S.W.3d 546, 561 (Tex. Crim. App. 2009) (Cochran, J., concurring) (explaining no double jeopardy violation in that case when manufacturing one bottle of methamphetamine was different act from possessing with intent to deliver a different bottle of methamphetamine); Torrez Diaz v. State, 762 S.W.2d 701, 704 (Tex. App.—Houston [14th Dist.] 1988) (no double jeopardy violation when charges of possession with intent to deliver and delivery required proof of two separate quantities of cocaine), pet. ref'd, 796 S.W.2d 183 (Tex. Crim. App. 1990).¹⁰

Appellant relies heavily on Fenoglio v. State, 252 S.W.3d 468, 479 (Tex. App.—Fort Worth 2008, pet. ref'd), and Lopez, 108 S.W.3d at 297-301. These cases are distinguishable. First, in Fenoglio, the court held that separate convictions for possession of methamphetamine violated double jeopardy because all the contraband was found as part of a single, continuous transaction. 252 S.W.3d at 478-79. There, a single warrant authorized the search of the vehicles and buildings on the subject property, and the narcotics were found during a single search of the locations covered by the warrant. Id. Here, unlike Fenoglio, officers found one quantum of the drug during a traffic stop, which constituted one completed offense. And officers found another, separate quantum of the same drug at appellant's motel room while executing a search warrant, which constituted a separate completed offense.

In Lopez, the defendant offered to sell three kilos of cocaine in the morning and delivered that same quantity of cocaine that same evening. 108 S.W.3d at 298-301. The court held that “the offer to sell and the possession of drugs to complete that specific sale is one single offense”; thus, Lopez's conviction for two separate offenses involving the same quantity of drugs violated double jeopardy. Id. at 300-01. Here, unlike Lopez, appellant was convicted of possession with intent to deliver two separately identifiable quantities of fentanyl. Neither of these cases supports appellant's double jeopardy claim.

We overrule appellant's double jeopardy issues in each cause number.

D. Motion to Suppress Evidence

Appellant filed a pre-trial motion to suppress the evidence obtained from his motel room, arguing the search warrant affidavit lacked sufficient facts to establish probable cause. After a brief hearing, the trial court denied the motion, finding that the officer “confirmed himself enough facts to make the [informants'] statement[s]” credible and reliable. In his third issue in cause number 100808-CR, appellant contends that the trial court erred in denying his motion to suppress the fruits of the motel room search.

We review a trial court's denial of a motion to suppress under a bifurcated standard of review. Igboji v. State, 666 S.W.3d 607, 612 (Tex. Crim. App. 2023). We review a trial court's determination whether a specific search or seizure was reasonable under a de novo standard, but we give trial courts almost complete deference in determining historical facts that depend on credibility and demeanor. Id. Our deferential review of the trial court's factual determinations also applies to the trial court's conclusions regarding mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012).

When reviewing a magistrate's decision to issue a search warrant, appellate courts apply a highly deferential standard of review because of the constitutional preference for searches conducted pursuant to a warrant over warrantless searches. State v. McLain, 337 S.W.3d 268, 271-72 (Tex. Crim. App. 2011). When ruling on a motion to suppress evidence obtained pursuant to a search warrant, a trial court is limited to the corners of the warrant and affidavit supporting the warrant. Id. at 271. The affidavit is interpreted in a non-technical, commonsense manner drawing reasonable inferences solely from the facts and circumstances contained within the four corners of the affidavit. See State v. Elrod, 538 S.W.3d 551, 554 (Tex. Crim. App. 2017); Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). “When in doubt, we defer to all reasonable inferences that the magistrate could have made” that are supported by the record. Bonds, 403 S.W.3d at 873; see also Barrett v. State, 367 S.W.3d 919, 922 (Tex. App.—Amarillo 2012, no pet.) (citing Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)). Probable cause is a “flexible and non-demanding standard,” Bonds, 403 S.W.3d at 873, and “[a]s long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate's probable cause determination.” McLain, 337 S.W.3d at 271.

The Fourth Amendment mandates that “no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” See U.S. Const. amend. IV. “Probable cause exists when, under the totality of the circumstances, there is a fair probability or substantial chance that contraband or evidence of a crime will be found at the specified location.” Bonds, 403 S.W.3d at 873. In other words, there must be “a sufficient nexus between criminal activity, the things to be seized, and the place to be searched.” Id.

Appellant argues that the informants' statements referenced in the affidavit were not reliable and that the totality of the circumstances did not support probable cause.¹¹ However, a tip from a first-time criminal informant may support probable cause when “the tip is corroborated, is a statement against penal interest, is consistent with information provided by other informants, is a detailed first-hand observation, or is coupled with an accurate prediction of the subject's future behavior.” State v. Duarte, 389 S.W.3d 349, 356-57 (Tex. Crim. App. 2012). Both informants in this case, Rodriguez and Jane Doe #1, provided inculpatory facts about appellant based on their first-hand observations. Both informants stated that appellant was staying at a Motel 6, was dealing narcotics, and was storing narcotics in his room. Law enforcement corroborated these statements by observing appellant at the Motel 6, watching him leave the Motel 6, and recovering narcotics in his vehicle during the traffic stop. Such corroboration is sufficient to support probable cause. See, e.g., Gallardo v. State, No. 03-10-0288-CR, 2011 WL 1991944, at *3 (Tex. App.—Austin May 11, 2011, no pet.) (mem. op., not designated for publication) (“The statements [the informants] gave to [a police officer] were corroborated by the officer's observations of their activities on the days in question and by the other information [the officer] had accumulated during his investigation.”).

Deferring to the trial court's factual determinations and considering the above-described facts, we conclude that the trial court did not err in denying appellant's motion to suppress. Accordingly, we overrule appellant's third issue.

Conclusion

Having overruled appellant's issues, we affirm the trial court's judgment.

FOOTNOTES

1.   Appellate cause number 14-25-00840-CR is appellant's appeal of trial court cause number 100807-CR. Appellate cause number 14-25-00841-CR is appellant's appeal of trial court cause number 100808-CR. For ease of reference, we refer to them by the trial court cause numbers in this opinion.

2.   Rodriguez testified that she associated with appellant for about two weeks before the traffic stop and that appellant not only sold her narcotics but also provided others with marijuana. She testified that she stayed at the Motel 6 with appellant the night before the stop, and appellant gave her fentanyl pills during that time. Rodriguez confirmed Deputy Saldivar's testimony describing what she told him during the traffic stop. Deputy Saldivar's body cam video footage from the traffic stop was admitted and played for the jury.

3.   The indictment in cause number 100807-CR alleged an offense under Health and Safety Code section 481.112(c), which makes it a second-degree felony to knowingly possess with intent to deliver a controlled substance in penalty group one if the amount is one gram or more but less than four grams. Tex. Health & Safety Code § 481.112(c). The State acknowledged during closing that the two quantities added together exceeded four grams:Y'all did get a lab report today, the one from Derek Sanders; and I think if y'all did the math, it would actually be over 4 grams. I don't want y'all to get hung up on that. There was, obviously, drugs found on the defendant's person and then also drugs that were found in the purse of Adriana. Those are all submitted under that one report. So it's going to be more than 4 grams. The defendant doesn't get the benefit because of that. He can still be found guilty of 1 to 4 grams. Don't hang yourselves up on that. I know it's something y'all probably noticed, so I just wanted to address it.

4.   The indictment in cause number 100808-CR alleged an offense under section 481.112(d), which makes it a first-degree felony to knowingly possess with intent to deliver a controlled substance in penalty group one if the amount is four grams or more but less than 200 grams. Tex. Health & Safety Code § 481.112(d).

5.   Our holding would be the same even if we limited our consideration only to the nine blue pills recovered from Rodriguez's purse during the traffic stop.

6.   Another 341 round blue pills imprinted with “M30” were found in bottles separate from the Ziploc baggie containing the 1,123 blue pills. The lab analyst testified that she did not confirm these pills contained fentanyl because it was unnecessary.

7.   There is no dispute that appellant was “residing” at the Motel 6 because he had been living there for approximately 77 days.

8.   When a double jeopardy claim is not preserved, it may be raised for the first time on appeal when: “ ‘(1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record, and (2) when enforcement of usual rules of procedural default serves no legitimate state interests.’ ” Roy v. State, 76 S.W.3d 87, 93 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (quoting Gonzalez, 8 S.W.3d at 643). An appellant must satisfy both prongs of this test to raise his complaint for the first time on appeal. See id.; see also Ellison v. State, 425 S.W.3d 637, 643 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

9.   Ex parte Ervin, 991 S.W.2d at 807.

10.   In contrast, the manufacture and simultaneous possession with intent to deliver of the same single quantity of a controlled substance constitutes a single offense under section 481.112. Weinn v. State, 326 S.W.3d 189, 191 (Tex. Crim. App. 2010).

11.   The affidavit provided the following regarding the information Investigator Jacoby obtained from the informants:On January 10, 2024, Your Affiant conducted an interview with a 17-year-old female, who from this point forward will be referred to as Jane Doe #1 (JD#l)․During the course of the interview on January 10, 2024, Your Affiant learned that JD#l uses narcotics, which JD#l described as “Percs”, which through training and experience Your Affiant knows “Percs” to be a slang term for Oxycodone in pill form. Your Affiant questioned JD#l about who provided the “Percs”, to which JD#l advised the supplier was an older black male, known as “T”. Your Affiant questioned JD#l about the actual name of the male, to which JD#l, stated the identity of “T” would be able to be found from a traffic stop on December 12, 2023. Your Affiant then asked JD#l where “T” was residing, and JD#l stated “T” was currently renting a room at the Motel 6, located at 1015 West Second Street, Freeport, Brazoria County, Texas. Your Affiant then asked JD#l if “T” had additional narcotics within the hotel room. JD#l advised “T” had more narcotics within the hotel room, specifically within the safe. JD#l advised the narcotics were viewed and the safe code would be “T’ ”s social security number․ Your Affiant then completed the interview and proceeded to review the information about that traffic stop from December 12, 2023 and observed a male identified as [appellant], who matched the description provided by JD#l. Your Affiant further observed the traffic stop to have a blue colored Sports Utility Vehicle (SUV) bearing VIN: 1FMYU03105KB43727. Your Affiant entered the VIN into the vehicle data base and observed an attached Texas License plate of TNZ6259.On January 11, 2024 Your Affiant was conducting surveillance at the Motel 6, and observed a blue colored Ford Explorer with the license plate TNZ6259 parked within the guest parking lot. Your Affiant further observed the vehicle leaving the parking lot and being operated by a black male matching the description of [appellant] and an unknown female, later identified as Adriana Rodriguez. Deputy Saldivar, with the Brazoria County Sheriff's Office was operating a marked patrol unit and observed [appellant] conduct multiple traffic infractions. Deputy Saldivar then conducted a traffic stop within the 500 block of North Brazosport Blvd. Freeport.During the course of Deputy Saldivar's traffic stop he located narcotics, specifically several round blue pills with score markings of M30, white oblong pills, which your Affiant knows to be Alprazolam, and a green leafy substance, which your Affiant knows to be Marijuana. Your Affiant was able to identify the round blue pills as Oxycodone Hydrochloride using the website www.drugs.com. Your Affiant further knows that blue, round pills, scored M30 are commonly counterfeited and manufactured using Oxycodone. Deputy Saldivar then conducted a roadside interview with Rodriguez who advised that the narcotics located during the course of the stop belonged to [appellant] and that [appellant] had more narcotics located at Motel 6 in Freeport, specifically room # 117. Your Affiant was later provided with information from the lobby attendant of Motel 6 that [appellant] has been staying at the motel for approximately 77 days․

Kevin Jewell Justice