Charles Anison Rogers, Jr. v. State ( 2009 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00133-CR
______________________________
CHARLES ANISON ROGERS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Franklin County, Texas
Trial Court No. F7887
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
OPINION
Charles Anison Rogers, Jr., appeals his conviction by a jury for possession of a controlled
substance with intent to deliver, enhanced by a prior felony conviction. While investigating
narcotics trafficking in Franklin County, Texas, law enforcement officers placed Rogers' motel room
under surveillance. The officers observed a vehicle being operated by James Wayne Fountain
leaving Rogers' motel room. During a consent search of Fountain's vehicle, the officers discovered
crack cocaine. Fountain informed police officers he had purchased the cocaine from Rogers. Based
on this "confidential informant's" statement, the law enforcement officers obtained a search warrant
for Rogers' motel room. The officers executed the search warrant while Rogers and his girlfriend
were present in the motel room. Rogers had crack cocaine on his person, and his girlfriend was in
possession of powder cocaine and marihuana. A large sum of cash and a .380-caliber pistol were
found in the room. A jury found Rogers guilty of possession of a controlled substance with intent
to deliver, found Rogers exhibited a deadly weapon during the commission of the offense, found the
enhancement allegation to be true, and assessed punishment at sixty years' imprisonment. The Texas
Court of Criminal Appeals has authorized an out-of-time appeal. On appeal, Rogers argues: 1) the
"affidavit did not properly describe the person relaying the information;" 2) the trial court erred in
denying his motion to suppress because the search warrant failed to specifically describe the location
to be searched; and 3) "the search warrant in this case was not properly executed." We affirm the
judgment of the trial court.
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I. Rogers' First and Third Points of Error Are Not Preserved
In his first point of error, Rogers complains about the warrant characterizing Fountain as a
confidential informant. Rogers argues, in his third point of error, that the search warrant failed to
specifically identify Rogers' girlfriend and was, therefore, not properly executed. Rogers has failed
to direct this Court to where in the record these arguments were presented to the trial court. To
preserve error for appellate review: (1) the complaining party must make a timely objection
specifying the grounds for the objection, if the grounds are not apparent from the context; (2) the
objection must be made at the earliest possible opportunity; and (3) the complaining party must
obtain an adverse ruling from the trial court. See TEX . R. APP . P. 33.1(a)(1); Saldano v. State, 70
S.W.3d 873, 887 (Tex. Crim. App. 2002). Further, an objection based on one legal theory may not
be used to support a different legal theory on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex.
Crim. App. 2002). Rogers' first and third points of error are not preserved for our review.
II. The Trial Court Did Not Err in Permitting the Police Officer to Supplement the
Description in the Warrant
Rogers' remaining complaint—contained in his second point of error—is that the warrant
fails to adequately describe the specific motel room to be searched. The description of the location
of the motel has not been challenged on appeal. The issue in this case is whether the warrant
adequately described the particular motel room to be searched.
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We review the trial court's decision on a motion to suppress evidence by applying a
bifurcated standard of review deferring to the trial court's determination of historical facts that
depend on credibility, but reviewing de novo the trial court's application of the law. Burke v. State,
27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet. ref'd). We afford almost total deference to a trial
court's determination of the historical facts supported by the record, especially when the trial court's
fact findings are based on an evaluation of credibility and demeanor. Carmouche v. State, 10 S.W.3d
323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We
are also to afford such deference to a trial court's ruling on "application of law to fact questions," also
known as "mixed questions of law and fact," if the resolution of those questions turns on an
evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo those
questions not turning on credibility and demeanor. Id.
The issuing magistrate's decision to grant the search warrant should be reviewed with a
deferential standard of review. Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006); Swearingen
v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Great deference should be paid to a
magistrate's determination of probable cause, and warrants should not thereafter be invalidated
through "hypertechnical" interpretation of their supporting affidavits. Illinois v. Gates, 462 U.S. 213,
236 (1983). Granting great deference to the issuing magistrate's determination, we will sustain the
issuance of the warrant if the magistrate had a substantial basis for concluding that a search would
uncover evidence of wrongdoing. Id.; see Swearingen, 143 S.W.3d at 811.
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Subject to a few limited exceptions not present in this case, "a search warrant must specify
which unit of a multi-unit complex is subject to the search." Amir v. State, 45 S.W.3d 88, 95 (Tex.
Crim. App. 2001). "[W]here the warrant describes a multi-unit dwelling, the description must
contain sufficient guidance to apprise the officers of the particular unit to be searched." Tyra v.
State, 496 S.W.2d 75, 76 (Tex. Crim. App. 1973). The search warrant affidavit in this case
described the motel room as follows: "The room is on the bottom floor of the east side of the main
motel building. The room has a white door with blue trim. There are two windows on the left hand
side of the door. There is no visible number to the room." A description can be adequate without
a room number for the particular unit to be searched. See Williams v. State, 928 S.W.2d 752, 754
(Tex. App.—Houston [14th Dist.] 1996), aff'd, 965 S.W.2d 506 (Tex. Crim. App. 1998). The
warrant, though, must describe sufficient distinguishing characteristics to distinguish the particular
unit to be searched from the other units in the multi-unit dwelling. While the description contains
some details, the details described could apply to every room in the motel. The description does not
specify whether other rooms have a white door with blue trim, whether other rooms have two
windows on the left-hand side of the door, or whether other rooms have a visible number to the
room. The description in this case fails to specify where the room to be searched was located in
relation to the other motel rooms other than being on the east side of the motel building. Based on
the four corners of the search warrant affidavit alone, there is a substantial danger of
misidentification. Thus, the question which we must decide in this appeal is whether our review is
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limited to the four corners of the affidavit or whether we can consider facts known to the police
officer not contained in the affidavit.
When reviewing whether the issuing magistrate had a substantial basis for concluding that
probable cause existed, our determination of the sufficiency of an arrest or search warrant is limited
to the four corners of the affidavit. Gates, 462 U.S. at 238; Oubre v. State, 542 S.W.2d 875, 877
(Tex. Crim. App. 1976); see Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); Burke,
27 S.W.3d at 654. The probable cause affidavit cannot normally be supplemented with additional
information not contained in the affidavit. Elardo v. State, 163 S.W.3d 760, 771 (Tex.
App.—Texarkana 2005, pet. ref'd); see Lowery v. State, 98 S.W.3d 398, 400 (Tex. App.—Amarillo
2003, no pet.); Flores v. State, 888 S.W.2d 193, 197 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref'd).
Several Texas courts have limited their review of the location to be searched to the four
corners of the warrant or affidavit. These cases hold "[t]he warrant must be sufficient on its face to
enable any executing officer to locate and distinguish the property, avoiding a reasonable probability
of mistaken execution. The validity of the warrant cannot depend upon the individualized,
supplementary knowledge of one officer." Olivas v. State, 631 S.W.2d 553, 556 (Tex.
App.—El Paso 1982, no pet.); see Mason v. State, 838 S.W.2d 657, 660 (Tex. App.—Corpus Christi
1992, pet. ref'd); see also Miller v. State, 134 Tex. Crim. 118, 114 S.W.2d 244, 246 (1938);
Williams, 928 S.W.2d at 754.
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Several Texas courts of appeals, though, have held that a very limited exception does exist
for the description of the location to be searched. See Taylor v. State, 974 S.W.2d 851, 857 (Tex.
App.—Houston [14th Dist.] 1998, no pet.); Smith v. State, 962 S.W.2d 178, 182 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref'd). These cases conclude that when the same police officer
conducts the investigation, swears to the affidavit for the warrant, and executes the search warrant,
that officer's knowledge of the exact premises may cure description deficiencies in the warrant or
affidavit. The First District reasoned as follows:
Our law concerning search warrants has two goals: to ensure that there is adequate
probable cause to search and to prevent the mistaken execution of the warrant against
an innocent third party. This second goal is met when the warrant identifies the place
to be searched sufficiently so that the officers who execute the warrant, acting as
reasonable men, can locate that place and identify it from other places in the
community. This goal is not furthered by rigid application of rules requiring a
warrant to contain certain descriptive elements such as the name of the city.
Smith, 962 S.W.2d at 182. In essence, the First District concluded we should not ignore the reality
that a search is rarely conducted by an officer without some knowledge of the prior investigation and,
therefore, we should adopt a more pragmatic and common-sense approach permitting some
deficiencies to be cured by an officer's more extensive knowledge of the premises. Although we
emphasize that an officer's knowledge of the premises cannot be used to entirely replace the
description in the warrant and emphasize that the better practice is for the description in the warrant
and affidavit to be sufficiently descriptive, we adopt the reasoning of the First District and conclude
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the executing officer's knowledge of the premises to be searched is relevant to the validity of the
search warrant.1
Further, this Court has held that "the warrant must identify the place to be searched
sufficiently so that the officers who execute the warrant, acting as reasonable men, can locate that
place and identify it from other places in the community." Bass v. State, No. 06-01-00054-CR, 2002
Tex. App. LEXIS 7250, at *12 (Tex. App.—Texarkana Apr. 11, 2002, pet. ref'd) (mem. op., not
designated for publication) (citing Smith, 962 S.W.2d at 184). In Bass, the search was approved
based on an informant's description, but the street address was incorrect. We approved the
consideration of the executing officer's familiarity with the location of the house; the description of
the property was otherwise accurate.
At trial, Sergeant Chris Miller, an investigator with the Franklin County Sheriff's Office,
testified concerning the description of the motel room. During the suppression hearing, Miller
testified he had been familiar with the motel for "[a]t least 14 to 16 years, on and off." Miller
admitted that there were "numerous rooms in the main building" and that he did not know whether
the other motel doors were white with blue trim or whether the other doors had two windows on the
left side of the door. At trial,2 Miller testified they had placed the room under surveillance before
1
We emphasize this knowledge is being considered only on the issue of the description of the
premises, not as to the probable cause to believe a crime had been committed.
2
The Texas Court of Criminal Appeals has held "[w]here the State raises the issue at trial
either without objection or with subsequent participation in the inquiry by the defense, the defendant
has made an election to re-open the evidence, and consideration of the relevant trial testimony is
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the search and had seen Fountain enter the room under surveillance and later exit the room. Miller's
testimony at trial indicates he could identify the target location of the search.
In Smith, the court emphasized the fact that the officer who had conducted the investigation
and signed the affidavit for this search warrant "had the house pointed out to him by a confidential
informant, and he watched the informant enter and leave that house. [The officer] was present to
execute the warrant and searched one house only, which was the house intended and targeted for the
search." 962 S.W.2d at 185. Similarly in this case, there is evidence that Miller had the room under
surveillance, had seen the confidential informant enter and leave that room, signed the affidavit in
support of the search warrant, and was present to execute the search. Based on the affidavit and the
evidence adduced, we conclude the description of the location to be searched was sufficient. The
trial court did not err in denying the motion to suppress.
For the reasons stated, we affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: June 11, 2009
Date Decided: June 26, 2009
Publish
appropriate in our review." Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (citing
Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984)).
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