Roundtree, Lorie Denise v. State ( 1998 )

Affirm, Opinion Filed June 10, 1998
In The
(tiaurt at Appeals
iJTtftJrf Itstrtrt at ©*xas at Sallas
No. 05-96-00875-CR
No. 05-96-00876-CR
No. 05-96-00877-CR
LORIE DENISE ROUNDTREE, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause Nos. F93-34772-NK, F93-34781-NK, F93-34782-NK
OPINION
Before Justices Lagarde, Whittington, and Roach
Opinion By Justice Lagarde
Lorie Denise Roundtree appeals from convictions for possession of
methamphetamine with intent to deliver (No. 05-96-00875-CR), possession of
methamphetamine (No. 05-96-00876-CR), and possession of amphetamine with intent to
deliver (No. 05-96-00877-CR). Appellant pleaded guilty to the charges and, pursuant to
a plea bargain, the trial court sentenced appellant to five years' imprisonment. The drugs
in question were seized pursuant to two separate search warrants executed at appellant's
residence on different dates. Appellant brings the same two points of error in each case.
In the first point, appellant contends that the searches violated her rights under
article one, section nine of the Texas Constitution and articles 1.06, 18.01, and 38.23 of the
code of criminal procedure. Tex. Const, art. I, §9; Tex. Code Gum. Proc. Ann. arts. 1.06,
18.01, 38.23 (Vernon 1977 &Supp. 1998). In her second point of error, appellant contends
that the searches violated her rights under the Fourth and Fourteenth Amendments to the
United States Constitution. U.S. Const, amends. IV, XIV. We overrule both points of
error and affirm the trial court's judgments.
BACKGROUND
On January 14, 1993, the police searched the residence shared by appellant and co-
defendant, William Lane, pursuant to a search warrant asserting that Lane was in possession
of and was manufacturing methamphetamine. The police found amphetamine,
methamphetamine, several small marijuana plants, and equipment for cultivating marijuana.
On about August 9, 1993, and on August 16, 1993, the police received complaints
that appellant and Lane were growing marijuana. On August 19, 1993, police officers saw
a large potted marijuana plant on appellant's front porch. The police obtained a search
warrant on August 19, 1993 and, on August 20, 1993, searched the residence. The police
found marijuana and methamphetamine.
Appellant filed a motion to suppress asserting that the affidavits did not show
probable cause for the issuance of the search warrants. After the trial court denied the
motion to suppress, appellant pleaded guilty in each case pursuant to a plea bargain. The
trial court sentenced appellant in accordance with the plea bargains. Appellant filed a
notice of appeal in each case complying with rule of appellate procedure 25.2(b)(3) and
former rule of appellate procedure 40(b)(1). See Tex. R. App. P. 25.2(b)(3); Tex. R. App.
P. 40(b)(1) (former rules).
STANDARD OF REVIEW OF A TRIAL COURT'S ORDER ON A MOTION TO
SUPPRESS EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT
Appellant contends that the trial court erred in overruling her motion to suppress
because the search warrants were not supported by probable cause. In deciding a motion
to suppress evidence seized pursuant to a search warrant, the issue before the trial court is
whether the issuing magistrate had a "substantial basis for . . . conclud[ing]" that a search
would uncover evidence of wrongdoing. Whether the facts alleged in a probable cause
affidavit sufficiently support issuance of a search warrant is determined by examining the
totality ofthe circumstances. Ramos v. State, 934 S.W.2d 358, 362 (Tex. Crim. App. 1996),
cert, denied, 117 S. Ct. 1556 (1997). The allegations are sufficient if they would "justify a
conclusion that the object of the search is probably on the premises." Id. at 363 (quoting
Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986)). The trial court does not
review de novo the sufficiency of an affidavit to support a search warrant but shows great
-3-
deference to the magistrate's decision. Illinois v. Gates, 462 U.S. 213, 236 (1983); Ramos,
934 S.W.2d at 363. The trial court's duty "is simply to ensure that the magistrate had a
'substantial basis for . . . concluding]' that probable cause existed," i.e., that there was a
"fair probability" contraband would be found at the place named in the warrants. Gates,
462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (I960)); see Johnson
v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990), cert, denied, 501 U.S. 1259 (1991).
In Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), the court of criminal
appeals clarified the standard of review to be used by appellate courts in reviewing a trial
court's order on a motion to suppress evidence obtained through a search incident to a
warrantless arrest. See id. at 87-89. In Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App.
1998), the court of criminal appeals stated that Guzman applied to all motions to suppress
evidence based upon Fourth Amendment claims as well as other claims.1 Id. at 771.
In Guzman, the court of criminal appeals explained that the standard of appellate
review depends on the type of question presented. It recognized three types of questions:
(1) historical facts that the record supports, especially when the trial court's fact findings are
based on an evaluation of credibility and demeanor; (2) application of law to fact questions,
i.e., mixed questions of law and fact, when the ultimate resolution of those questions turns
1The court held that the Guzman standard applied to "motion[s] to suppress evidence based upon a claim that an in-court
identification should not have been admitted due to taint by an impermissibly suggestive pretrial identification procedure, in
violation of the defendant's due process rights under the Fourteenth Amendment." Loserth, 963 S.W.2d at 771. The court did
not explain its reasons for applying Guzman outside the warrantless arrest context, nordid it place any limits on the applicability
of Guzman to motions to suppress evidence of any type for any reason. It would appear that the courtof criminal appeals intends
Guzman to be the standard of appellate review of all orders on motions to suppress.
on an evaluation of credibility and demeanor; and (3) mixed questions of law and fact when
the resolution of those questions does not turn on an evaluation of credibility and demeanor.
See Loserth, 963 S.W.2d at 772; Guzman, 955 S.W.2d at 89. In reviewing the first two types
of questions, an appellate court shows "almost total deference" to a trial court's
determination because of a trial court's exclusive fact-finding role and because a trial court
is in an appreciably better position to decide the issue. Guzman, 955 S.W.2d at 89. In
reviewing the third type of question, where the resolution of the issue does not turn on an
evaluation of credibility and demeanor, an appellate court is in as good a position to review
the issue as the trial court; therefore, an appellate court determines the issue independently,
or de novo. Id. In Guzman, the court of criminal appeals held that the issue of whether an
officer had probable cause to arrest a suspect without a warrant, under the totality of the
circumstances, was a question of the third type. Id. at 87.
Applying Guzman's general standard of review to an order on a motion to suppress
evidence seized pursuant to a search warrant, the issue before the trial court is the propriety
of the magistrate's determination that there is probable cause to issue the search warrant.
When this issue is determined by the trial court reviewing the same affidavit considered by
the magistrate in deciding whether to issue the warrant, as it was in these cases, resolution
of a motion to suppress evidence seized pursuant to a search warrant does not turn on an
evaluation of credibility and demeanor, thus the issue also falls within the third type of
question under Guzman. Therefore, we determine independently, or de novo, the issue
•5-
before the trial court: viewing the totality of the circumstances and giving great deference
to the magistrate's decision to issue the warrant, whether the magistrate had a substantial
basis for concluding that a search would uncover evidence of wrongdoing. See Lane v. State,
No. 05-96-00878-CR, slip op. at 7 (Tex. App.-Dallas June 4, 1998, no pet. h.). Applying
these standards, we consider appellant's points of error.
APPELLANT'S POINTS OF ERROR
In each case, appellant presents the same two points of error. In the first point of
error, appellant contends that the searches violated her rights under the Texas Constitution
and the code of criminal procedure; in the second point of error, appellant contends that
the searches violated her rights under the federal constitution. Although she presents her
federal and state grounds in separate arguments, appellant fails to show a distinction
between them. Accordingly, we will consider the state and federal grounds to be the same
and consider them together. See Arnold v. State, 873 S.W.2d 27, 29 n.2 (Tex. Crim. App.
1993), cert, denied, 513 U.S. 830 (1994); Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim.
App.), cert, denied, 510 U.S. 837 (1993).
JANUARY 14, 1993 SEARCH
In cause numbers 05-96-00876-CR and 05-96-00877-CR, appellant asserts the
affidavit supporting the January 14, 1993 search warrant does not show probable cause.
That affidavit states, in pertinent part:
On January 13, 1993, the Mesquite Police Narcotics Section
executed a narcotics search warrant at 1308 Highland
Street .... Investigators recovered approximately 37 grams of
methamphetamine along with cocaine and marijuana. The
residents of this location were placed in custody and transported
to Mesquite City Jail. During a debriefing of one of the
residents, Donald Ray Johnson . . . gave Investigator D. L.
Ward ... a voluntary written statement. In this statement,
Johnson advises that he has personally known the [s]aid William
Lane for approximately one and a half years. During this
period of time Johnson and Lane together have been cooking
methamphetamine inside the place and premises .... Johnson
further states that Lane would cook the methamphetamine,
Johnson would sell the finished product. Johnson advises that
on January 13,1992 prior to the search warrant being executed
at his residence, he was inside the place and premises described
. .. above, and that the [s]aid William Lane was currently in the
cooking process. Johnson states that the [sjaid William Lane
had concluded the first portion of the cook process, and was
supposed to start the powdering process late during the night of
the 13th. Johnson states that the laboratory equipment was
setup [sic] in the garage of the place and premises described
[above].
(Emphasis added.)
Appellant contends the affidavit shows the information that Lane was in possession
of methamphetamine at appellant's and Lane's residence on January 14, 1993 was stale
because it showed Lane may have possessed methamphetamine on January 13, 1992, more
than a year before the January 14, 1993 affidavit. Thus, argues appellant, the affidavit is
insufficient. At the hearing on the motion to suppress, the State called the affiant.
Detective R.E. Bishop, who also typed the affidavit. Bishop testified that "1992" was a
typographical error, but he did not testify what the correct date was.
-7-
Technical discrepancies in dates or times do not automatically invalidate a search
warrant. Green v. State, 799 S.W.2d 756, 757 (Tex. Crim. App. 1990). In Green, the court
of criminal appeals stated:
When the question on appeal relates to descriptive facts
supporting the probable cause determination, a reviewing court
may logically look behind the warrant to the supporting
affidavit. But, the same may not be said for all so-called
"technical defects" acknowledged by the State. Due to the
nature of such errors, this court has held such defects may be
cured by explanatory testimony.
Id. at 760.
In this case, Bishop testified that the date "1992" in the affidavit was incorrect and
was a typographical error. However, because Bishop did not testify to what the correct year
was, we must decide whether the year can be determined from the affidavit. Johnson told
Bishop on January 13, 1993 that he had known Lane for about one-and-a-half years, or
from about July 1991. Therefore, the correct date could not be before July 1991. Because
1992 is not the correct year, and a January 13 before 1992 would not have been possible
given Johnson's statement that he had known Lane only since about July 1991, the only
possible January 13 date that Johnson could have described to Bishop and which Bishop
could have meant to place in the affidavit is January 13, 1993. Cf. Champion v. State, 919
S.W.2d 816, 818 (Tex. App.-Houston [14th Dist.] 1996, pet. refd) (affidavit supporting
search warrant stated incorrect address).
Viewing the totality of the circumstances, including Johnson's statement that on
January 13, 1993, Lane was in the process of manufacturing methamphetamine using
laboratory equipment located in the garage of the premises and would begin the powdering
process late during the night of January 13, 1993, and giving great deference to the
magistrate's decision, we conclude that the magistrate had a substantial basis for concluding
that on January 14, 1993 there was a fair probability that methamphetamine was inside the
premises. We hold that the trial court did not err in overruling appellant's motion to
suppress. We overrule her points of error in cause numbers 05-96-00876-CR and 05-96-
00877-CR.
AUGUST 20, 1993 SEARCH
In cause number 05-96-00875-CR, appellant asserts that the affidavit supporting the
August 19, 1993 search warrant does not show probable cause to search. In the affidavit,
the affiant, David Ward, identified the location to be searched, stated it was in the charge
of and controlled by appellant and Lane, and stated he believed they possessed marijuana
at that location. Ward based this belief on the following facts:
Ward received information on August 16, 1993 that appellant and Lane
were growing marijuana at the location. The police had received a similar
complaint about a week before August 16, 1993.
Ward drove past the location between August 16 and 19, 1993 on
several occasions but did not see any marijuana plants.
On August 19, 1993, Ward drove past the location and saw a potted
marijuana plant set outside the house on a rail just in front of the front door.
"Due to the fact that marijuana has not been observed until August 19,
1993 the plants may be being moved in and out of the residence ... for
sunlight and security of the plants."
During the January 14, 1993 search, the police recovered marijuana
plants and cultivation equipment as well as a working methamphetamine lab
and a substantial amount of methamphetamine.
Appellant has one previous arrest on a narcotics charge, and Lane has
four previous arrests on narcotics charges.
"Your Affiant has had training and experience in narcotic[s]
investigations. It has been your Affiant's experience that persons who
cultivate marijuana use drying areas inside a covered area for the purpose of
drying out the marijuana to be smoked. These areas have been sheds or
inside the residence [in] which the persons live. It is also common to find
larger and smaller plants inside these areas, either waiting to be planted
outdoors or the plants have been potted for growing inside the residence
and/or outbuildings located on the curtilage thereof. Therefore, your Affiant
believes that the said William Eugene Lane and Lorie Denise Roundtree . .
. are currently and knowingly in possession of . . . marijuana at the place and
premises described . . . above."
Appellant asserts that all references to the January 14, 1993 search must be excised
because that information is the fruit of an illegal search. However, as discussed above, the
January 14, 1993 search was not illegal. Appellant's argument lacks merit.
Some of the underlying circumstances of which the magistrate was informed through
the affidavit at the time of the issuance of the search warrant were: Complaints about
marijuana being grown at the named location, the presence of the marijuana plant in front
of the house, the January 14, 1993 search involving discovery of several marijuana plants and
cultivation paraphernalia, and appellant's and Lane's history of drug arrests. Applying a
totality-of-the-circumstances analysis to those facts in reviewing the magistrate's probable
•10-
cause determination, and giving great deference to the magistrate's determination, we
conclude the magistrate had a substantial basis for his decision that there was a fair
probability marijuana was inside appellant's house. Therefore, the trial court did not err
in overruling the motion to suppress. We overrule both points of error in cause number
05-96-00875-CR.
We affirm the trial court's judgments.
SUEL
JUS'
Do Not Publish
Tex. R. App. P. 47
960875F.U05
-11-