Mark Eugene Engle v. State ( 2015 )

ACCEPTED
06-14-00239-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/2/2015 2:01:22 PM
DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS FOR THE
SIXTH DISTRICT OF TEXAS AT TEXARKANA
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
MARK EUGENE ENGLE 10/2/2015 2:01:22 PM
APPELLANT § DEBBIE AUTREY
§ Clerk
v. § Nos. 06-14-00239-CR
§
THE STATE OF TEXAS, §
_t\PPELLEE §
STATE'S BRIEF
ON APPEAL FROM THE 354th DISTRICT COURT
HUNT COUNTY, TEXAS
TRIAL COURT CAUSE NUMBER 29,110
THE HONORABLE RICHARD A. BEACOM, JR., JUDGE PRESIDING
NOBLE D. WALKER, JR.
District Attorney
Hunt County, Texas
STEVEN LILLEY
Assistant District Attorney
P.O. Box 441
4th Floor Hunt County Courthouse
Greenville, TX 75403
(903) 408-4180
FAX (903) 408-4296
State Bar No. 24046293
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ 2
INDEX OF AUTHORITIES ..•................................................................................. 3
SUMMARY OF THE STATE'S ARGUMENT ........................................................ 5
ARUGUMENT ........................................................................................................&
PRAYER ..............................................................................................................17
CERTIFICATE OF SERVICE ..............................................................................17
CERTIFICATE OF COMPLIANCE ......................................................................18
2
INDEX OF AUTHORITIES
CASES
FEDERAL
Franks v. Delaware, 438 U.S. 154,98 S. Ct. 2674 (1978) .............................. 13-16
Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983) ........................................ 10
TEXAS
Brown v. State, 115 S.W.3d 633
- - ~- ------
(Tex. App. Waco 2003, no pet.) ................................................................... 9
Darcy v. State, 728 S.W.2d 772 (Tex. Grim. App. 1988) ............................... 14, 16
Gibbs v. State, 819 S.W.2d 821 (Tex.Crim.App.1991 ).......................................... 9
Hennessy v. State, 660 S.W.2d 87 (Tex. Grim. App. 1983) ..................... 10, 14, 16
Marquez v. State, 725 S.W.2d 217 (Tex.Crim.App.1987) .................................... 10
Melton v. State, 750 S.W.2d 281
(Tex. App. Waco 1988, no pet.) ................................................................. 14
State v. Duarte, 389 S.W.3d 349 (Tex. Grim. App. 2012) .................................... 10
State v. Huddleston, 387 S.W.3d 33
(Tex. App. Texarkana 2012, pet. ref'd) ........................................................ 9
STATUTES
Texas Code of Grim. Pro. Art. 18.01 (b) .................................................................9
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IN THE COURT OF APPEALS FOR THE
SIXTH DISTRICT OF TEXAS AT TEXARKANA
MARK EUGENE ENGLE
APPELLANT §
§
v. § No. 06-14-00239-CR
§
THE STATE OF TEXAS, §
APPELLEE §
STATE'S BRIEF
TO THE HONORABLE COURT OF APPEALS:
NOW COMES the STATE OF TEXAS, Appellee, in this appeal from Cause No.
29,110 the 354th Judicial District Court in and for Hunt County, Texas, Honorable
Judge Richard A. Beacom, Jr., Presiding, now before the Sixth District Court of
Appeals, and respectfully submits this its brief to the Sixth District Court of
Appeals in support of the judgment of conviction and sentence in the court below.
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SUMMARY OF ARGUMENT
Appellant alleges a single point of error which the state will address as two
separate claims of error by the trial court.
In his first point of error, Appellant claims that the trial court erred in
denying his motion to suppress because the four corner of the search warrant
affidavit failed allege sufficient facts and circumstances giving rise toprobable
cause. Appellant forms this argument around the theory that the victim named in
the search warrant should be treated similarly to a confidential informant for
purposes of examining the sufficiency of the search warrant affidavit. The victim,
however, is not an anonymous or confidential informant and should not be
treated as such. Jane Doe met face to face with members of law enforcement
and explained is detail her activities and later her victimization at the hands of
Appellant. She expected no quid pro quo for her information. Despite the fact
that she was not well known to members of local law enforcement, she made no
attempt to conceal her identity from them. After speaking with law enforcement,
Jane Doe met with a member of the Northeast Texas Crisis Center and more
fully explained the sexual assault against her. In addition, members of law
enforcement were able to corroborate certain facts that Jane Doe offered to
police. For these reasons, Jane Doe was certainly not a confidential or
anonymous informant and her statements should be considered inherently
reliable. Therefore, the statements of Jane Doe, coupled with other information
provided in the affidavit provided the magistrate with the probable cause required
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to believe that evidence of a crime would be found at the locations Detective
White requested be searched.
In his second point of error, Appellant claims that the trial court erred by
denying his motion to suppress on the grounds that the search warrant violated
the tenants of Franks v. Delaware. Appellant fails in this argument for several
reasons. First, Appellant does not show that a single statement in the search
warrant affidavit were factually false. Secondly, Appellant's allegations leveled
against Detective White amount to mere negligence on her part to not more fully
investigate the allegations of Jane Doe before requesting a search warrant.
Alleged negligence on the part of an affiant is insufficient to give rise to a Franks
violation. Finally, Appellant also extends his Franks argument to allege
deliberately false or reckless statements by Jane Doe. A Franks violation only
occurs when the affiant herself makes a false statement in the search warrant
affidavit. For these reasons, Appellant claim that the trial court erred in failing to
find a Franks violation should be overruled.
ARGUMENT
I.
DID THE AFFIDAVIT FOR SEARCH WARRANT ARTICULATE PROBABLE
CAUSE WITHIN ITS FOUR CORNERS?
In his first point of error, Appellant alleges that the trial court erred in
finding that probable cause existed within the four corners of the affidavit for
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search warrant drafted by Detective Felicia White.
On December 7, 2012 Detective White swore out an affidavit to request
that a search warrant be issued to search a motel room and a white two door
vehicle for evidence of a sexual assault. The affidavit relies heavily upon a report
drafted by Corporal Victor Petrea of the Greenville Police Department who spoke
in person with Jane Doe 2012-26498 "Jane Doe." This name and number
combination is identified in the search warrant affidavit as a pseudonym name.
The affidavit describes Corporal Petrea's report in detail, including a detailed
description that Jane Doe gave of her activities beginning at 1O:OOpm on
December 6, 2012. Jane Doe informed Corporal Petrea that she met a man
named Mark that evening and eventually was alone with him at a truck stop in
Hunt County, Texas. Jane Doe described Mark as driving a white Saturn vehicle
two door car with "suicide type doors." Jane Doe described that she and Mark
drove to various places where Mark sold narcotics to individuals. Jane Doe
alleged that at one point during their trip, Mark bound Jane Doe and assaulted
her. Eventually, Mark drove the two of them to a Motel 6 in Greenville, Texas
where he rented a room which Jane Doe recalled to be room 123. It was in this
room that Jane Doe states that she was sexually assaulted for "several hours."
Jane Doe described to Corporal a separate incident of sexual assault after the
first one back in the same hotel room. After the second sexual assault, Mark
drove the two of them around town and eventually, Jane Doe seized an
opportunity to flee from the vehicle while they were stopped at a stop sign. Jane
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Doe stated that she called a family friend who came and picked her up. Jane
Doe stated that the friend took her to a local hospital and then to the Greenville
Police Department.
The affidavit goes on to explain that Jane Doe was interviewed by Holly
Robinson of the Northeast Texas Crisis Center. During this interview, Jane Doe
more fully explained the sexual assaults against her including the manner and
means that Appellant used to commit the assaults.
Detective White's affidavit further states that she spoke with Sergeant
Steve Walden of the Greenville Police Department. Sgt. Walden informed
Detective White that a Mark Engle had rented room number 123 at the
Greenville, Texas Motel 6 on December 7, 2012 at 3:44a.m. In the parking lot of
the Motel 6, there was a white 2000 year Saturn two door car which Affiant
learned was registered to Mark Engle. When Detective White reviewed a
criminal history report of Mark Engle, she learned that he had been arrested in
the past for both possession and manufacturing or delivery of a controlled
substance.
Based upon these facts and others as fully laid out in the affidavit,
Detective White requested that a search warrant be issued for hotel room 123
and the white 2000 Saturn two door vehicle registered to Mark Engle for items
utilized in the offense of Aggravated Sexual Assault. Specifically, Detective
White listed bodily fluids, clothing items, wash cloths, syringes,
methamphetamines, video cameras, cellular telephones, "SIM" cards for cellular
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telephones, computers, and items utilized for bindings as being potential
evidence in either the hotel room or the vehicle.
Based upon the affidavit, a district judge signed the search warrant at
6:28p.m. on December 7, 2012.
A request for a search warrant must be accompanied by a affidavit with
sufficient information and detail showing probable cause that evidence will be
found in the places requested to be searched or the things to be seized. Texas
Code ofCrim. Pro. Art. 18.01(b). The affidavit is to be reviewed in its totality
using common sense, hyper technical rules of interpretation should be avoided.
Brown v. State, 115 S.W.3d 633, 638 (Tex. App. Waco 2003, no pet.) citing
Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991 ).
In many circumstances, the affiant requesting a search warrant will include
in the affidavit the statements of private citizens who were witnesses or victims of
the crimes giving rise to the warrant request. Courts have applied different
standards to witness's information in a search warrant depending on whether the
witness is a government informant or simply a citizen who provides information
without any expectation of payment or preferential treatment. The information
provided by an informant is not to be considered inherently reliable. Such
statements must be buttressed with additional information within the four corners
of the affidavit showing that the person providing the information is reliable.
State v. Huddleston, 387 S.W.3d 33, 37 (Tex. App. Texarkana 2012, pet. ref'd).
There are not set requirements that must be met in the affidavit to show the
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reliability of an informant, rather the magistrate and reviewing courts must
examine the totality of the circumstances provided in the affidavit. Hennessy v.
State, 660 S.W.2d 87, 89-90 (Tex. Grim. App. 1983), expressly following Illinois
v. Gates, 462 U.S. 213, 103 S.Gt. 2317, 76 L. Ed. 2d 527 (1983).
In contrast, the statements of a citizen witness are considered inherently
reliable and therefore a magistrate rely on such statements in and of themselves
in determining probable cause. "The citizen-informer is presumed to speak with
the voice of honesty and accuracy. The criminal snitch who is making a quid pro
quo trade does not enjoy any such presumption; his motive is entirely self-
serving." State v. Duarte, 389 S.W.3d 349, 357-58 (Tex. Grim. App. 2012). No
evidence is required to "prove up" the reliability of a citizen witness.
"Appellee alleges that the affidavit must contain some facts to show
that the peace officers and other witnesses who provided affiant with
the substantive information contained in the affidavit are credible.
This argument is entirely without merit. While it is true that such facts
must be included when the information contained in the affidavit is
given by a confidential informant, as a matter of constitutional law an
ordinary citizen as a witness in a case or a police officer is presumed
to be reliable and no special showings are required."
Marquez v. State, 725 S.W.2d 217, 232 (Tex.Grim.App.1987).
It is no doubt for the reasons outlined above that Appellant attempts to cast
Jane Doe an informant rather than a victim/witness of a crime. "Based on these
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facts Jane Doe acted similar to a confidential informant." Appellant's Brief at 13.
Unfortunately for Appellant, this is simply not true. The information provided in
the affidavit clearly shows that Jane Doe was a witness/victim and not a
confidential or anonymous informant. According to the four corners of the search
warrant affidavit, Jane Doe was brought in person to the Greenville Police
Department to report her sexual assault at the hands of a man named Mark.
Jane Doe spoke with Corporal Victor Petrea at length regarding the facts and
circumstances of her sexual assault. Jane Doe is described in the affidavit as
being visibly upset. Though Jane Doe could not initially go into detail about her
sexual assault, Jane Doe did give details of her assault to Holly Robinson of the
Crisis Center of Northeast Texas. These details were recounted in the affidavit
by Detective White.
Even though it is not required, Detective White did include pieces of
information that validated several facts within Jane Doe's account. Jane Doe
accurately described the white Saturn two door vehicle registered to Appellant.
Jane Doe also accurately recalled the motel and specific room number which
Appellant rented on December 7. Jane Doe described Mark as being a white
male of forty years old. Appellant turned out to be a forty four year old white
male. In addition, Jane Doe described Mark as being both a user of
methamphetamine and a dealer. Detective White included in her affidavit that
Appellant had arrests for both possession of a controlled substance, and
manufacturing/delivery of a controlled substance.
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Though Jane Doe was not known to the members of the Greenville Police
Department, her identity was no secret. The affidavit does not state that Jane
Doe requested or expected any special treatment or payment whatsoever for her
statement. To the contrary, Jane Doe presented to the Greenville Police
Department simply as a victim of a very violent, vicious crime. Under the facts
outlined above, it is clear that Jane Doe is a citizen who's statement is to be
considered inherently reliable.
Appellant additionally complains that Holly Robinson's credentials as the
Executive Director of the Crisis Center of Northeast Texas were not fully
developed in the affidavit. However Ms. Robinson was quite obviously a citizen
witness and not a government informer in need of additional facts proving her
credibility.
More inexplicably, Appellant complains that the sex acts perpetrated on
Jane Doe were never expressly described as being against her consent. This
ignores Corporal Petrea's report, after speaking directly in person with Jane Doe,
which states that Jane Doe was "sexually assaulted" in the motel room by Mark.
In addition, Holly Robinson repeated to Detective White that Jane Doe recounted
her "sexual assault" as including penetration of her mouth, vagina and anus with
Appellant's penis while she was restrained the entire time. These allegations are
more than sufficient to show that the sexual acts done to Jane Doe were without
her consent.
Based upon Jane Doe's status as a citizen witness/victim of crime, her
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statements recounted in the affidavit are to be considered inherently reliable. As
such, they require no additional facts establishing Jane Doe's reliability. Even
so, Detective White included numerous facts in the affidavit verifying facts given
to law enforcement by Jane Doe. With this in mind, Jane Doe's statements to
law enforcement, coupled with the information by Holly Robinson are more than
sufficient to establish probable cause that evidence of a sexual assault may be
present in either the motel room 123 and/or Appellant's white Saturn two door
vehicle. Therefore, the trial court did not err in overruling Appellant's motion to
suppress the evidence based upon a lack of probable cause. As a result,
Appellant's first point of error should be overruled.
II.
DID THE AFFIANT COMMIT VIOLATIONS UNDER FRANKS V. DELAWARE
REDURING THE SEARCH WARRANT AFFIDAVIT INSUFFICIENT TO
ESTABLISH PROBABLE CAUSE?
In his second point of error, Appellant complains that Detective White and
other officers had a "reckless disregard for the truth" which resulted in a violation
of the tenants of Franks v. Delaware.
The Supreme Court in Franks provided criminal defendants a method to
challenge a search warrant if the affiant made knowingly false statements or
included false statements with reckless disregard for whether the statements
were true or not. See generally, Franks v. Delaware, 438 U.S. 154, 98 S. Ct.
2674 (1978). A defendant who desires to challenge a search warrant on these
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grounds must make an initial showing that there exists specific statements within
the statement that the affiant knew were false or had reckless disregard for their
truthfulness. The defendant must support these allegations by way of affidavit or
otherwise reliable statements. Finally, the defendant must show that without the
complained of statements, probable cause would not exist within the remaining
four corners of the affidavit. If a defendant can meet this initial showing, he will
then be entitled to a hearing on the matter to fully investigate the matter and
request that the judge omit the offending statements and decide whether
probable cause exists. Franks, 438 U.S. at 171-72, 98 S.Gt. at 2684-85.
Allegations amounting to mere negligence on the part of the affiant or law
enforcement in checking facts provided to them or recording those facts will not
justify a hearing or subsequent removing of the offending statements in the
affidavit. Darcy v. State, 728 S.W.2d 772, 783 (Tex. Grim. App. 1988).
The alleged false statements complained of in a Franks hearing must be
those of the affiant who requested the search warrant, not a third party witness or
government informant. Hennessey v. State, 660 S.W.2d 87, 92 (Tex. Grim. App.
1983); Melton v. State, 750 S.W.2d 281, 284-85 (Tex. App. Waco 1988, no pet.).
Appellant complains that the affiant, Detective White, had a reckless
disregard for the truth when she allegedly failed to investigate more fully the
history and truthfulness of Jane Doe, who she did not know. He further
complains that neither Detective White nor any other law enforcement officer was
able to corroborate "anything from before the affidavit was made." Appellant's
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brief at 14.
As a threshold matter, the State points out that though Appellant did not
observe the formal steps outlined in Franks v. Delaware to be granted a hearing
on the matter, the trial court nevertheless granted a hearing on Appellant's
motion to suppress and heard evidence that would be conceivably relevant
during a Franks hearing. Therefore, a de facto Franks hearing took place.
Whether Appellant should have been granted such a hearing is immaterial,
however, as his claim under Franks fails for several reasons.
First, the entire Franks line of cases rest on one basic assumption: that
the complained of statement in the affidavit is actually false. Though this need
only be proved by a preponderance of the evidence, it must still be shown by the
defendant.
"In the event that at that hearing the allegation of perjury or
reckless disregard is established by the defendant by a
preponderance of the evidence, and, with the affidavit's false
material set to one side, the affidavit's remaining content is
insufficient to establish probable cause, the search warrant must be
voided and the fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit."
Franks, 438 U.S. at 156, 98 S.Ct. at 2676. Appellant in this case
complains that Detective White and her law enforcement colleagues were
reckless in that they did not more fully investigate the claims of Jane Doe.
15
Appellant has not, however, made a claim that any statement in the search
warrant affidavit was factually false. Without such a claim with support in the
record, Appellant's second point of error should be overruled.
The second reason that Appellant's Franks argument should fail is that
Appellant seems to be alleging that Detective White was negligent in failing to
check more of the facts given to her by Jane Doe through law enforcement. As
stated above, such allegations of negligence do not give rise to a Franks
violation. Darcy, supra, 728 S.W.2d at 782- 83.
The nature of Appellant's Franks argument appears to be an attempt to
attack the veracity of Jane Doe and not Detective White. If this is true, it belies
the third reason Appellant's Franks argument should be overruled. As stated
above, the alleged false statements subject to a Franks hearing must be those of
the affiant, not a third party witness or informant. Hennessey, supra, 660 S.W.2d
at 82.
For at least the three reasons outlined above, Appellant's point of error
under Franks v. Delaware should be overruled.
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PRAYER
Appellant's trial was without prejudicial or fundamental error. The State
prays that Appellant's conviction and sentence be affirmed.
Respectfully submitted,
· Assistant District Attorney
P.O. Box 441
4th Floor Hunt County Courthouse
Greenville, TX 75403
State Bar No. 24046293
(903) 408-4180
FAX (903) 408-4296
CERTIFICATE OF SERVICE
A true copy of the State's brief has been deliv r tl to Appellant, Jason
Duff, on October 2, 2015. ~ --/ ~
Assistant District Attorney
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CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney of record certifies that Appellees Brief contains 13-point
typeface of the body of the brief, 2,967 words, excluding those words identified
as not being counted in appellate rule of procedure 9.4(i)(1 ), and was prepared
on Microsoft Word 2007.
Steven Lilley
Attorney for the State
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