Williams, Derrick Linn v. State ( 2002 )

  In The

Court of Appeals

For The  

First District of Texas

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NO. 01-01-01198-CR

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DERRICK LINN WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 858548

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O P I N I O N

          After appellant pled no contest to the offense of possession of over 400 grams of cocaine, the trial court found appellant guilty of the offense and sentenced him to 20 years’ confinement in prison. In his first and third points of error, appellant contends that the search warrant used to seize cocaine from his house was not supported by an affidavit showing probable cause. In his second point of error, appellant asserts that the trial court erred by declining to order that the identity of the confidential informant be disclosed to the defense. We affirm. Facts

          On October 15, 2000, Officer Mark Boyle of the Houston Police Department spoke with a confidential informant. The informant told Boyle that appellant possessed cocaine and planned to deliver it that afternoon. The informant told Boyle that the cocaine was inside appellant’s house and identified appellant’s house and car. Boyle immediately initiated a surveillance of appellant’s house. After appellant left his house driving the car identified by the informant, Boyle pulled appellant over for a traffic violation. After conducting a search, Boyle found appellant illegally in possession of a firearm and arrested him. Boyle did not find cocaine in the car.

          Boyle next sought to obtain a search warrant for appellant’s house. Boyle telephoned Officer Frank Scoggins of the Houston Police Department and asked him to prepare an affidavit. The affidavit contained the information provided by the informant, but did not provide any information regarding appellant’s arrest. Scoggins presented the affidavit to a magistrate, who issued a search warrant for appellant’s house. Boyle subsequently searched appellant’s house and found over 400 grams of cocaine.

Motion to Suppress

          In his first point of error, appellant contends that Scoggins’ affidavit failed to show, within the totality of the circumstances, probable cause to support the issuance of the search warrant.

          A search warrant may issue only if supported by an affidavit showing facts that justify a conclusion that the object of the search is probably on the premises. See Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996); Villegas v. State, 871 S.W.2d 894, 898 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). A search warrant must set forth facts to establish probable cause that (1) a specific offense was committed, (2) the item(s) to be searched for constitute evidence of the offense, and (3) the item(s) to be searched for are present at a specific location. See Tex. Code. Crim. Proc. Ann. art. 18.01(c) (Vernon Supp. 2002); Hughes v. State, 843 S.W.2d 591, 593-94 (Tex. Crim. App. 1992).

          We examine the totality of circumstances, as viewed from the four corners of the affidavit, to determine whether the circumstances justify a conclusion that the object of the search is probably on the premises. Ramos, 934 S.W.2d at 362-63. Only facts found within the four corners of the affidavit may be considered. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992). The magistrate may draw reasonable inferences from facts and circumstances alleged. Id. at 124.

          The reliability of the affiant and his sources of information are part of the totality of the circumstances a magistrate should evaluate when making a probable cause determination. See Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990). An unnamed informant’s reliability may be established by the general assertions of the affiant, as stated in the affidavit, concerning the informant’s prior reliability. Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1982); Cerda v. State, 846 S.W.2d 533, 534 (Tex. App.—Corpus Christi 1993, no pet.). Furthermore, an affiant may rely on hearsay, provided a substantial basis for crediting the hearsay is presented. Illinois v. Gates, 462 U.S. 213, 238, 241-42, 103 S. Ct. 2317, 2332-34 (1983); Green v. State, 736 S.W.2d 218, 219 (Tex. App.—Corpus Christi 1987, no pet.). In reviewing the sufficiency of an affidavit, the issuing magistrate’s determination of probable cause should be given great deference, and should be sustained as long as the magistrate had a substantial basis for concluding that a search warrant would produce evidence of wrongdoing. Ramos, 934 S.W.2d at 363.

          In the present case, Scoggins’ affidavit reveals the following: (1) Boyle received information from a confidential informant; (2) this informant saw cocaine packaged inside appellant’s house during the prior 72-hour period; (3) the informant has seen cocaine on many occasions and could identify the substance; (4) the informant provided appellant’s address and description; and (5) the informant was credible and reliable and had provided Boyle with true and accurate information in the past.

          As a reviewing court, we may not determine probable cause de novo and may only decide whether there is substantial evidence to support the magistrate’s decision. See Meeks v. State, 851 S.W.2d 373, 376 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). Constrained to the four corners of the affidavit, we find that information from the “reliable informant,” that he viewed cocaine at appellant’s house within 72 hours before the issuance of the warrant, provided a reasonable basis for the magistrate to conclude that probable cause existed for the issuance of the search warrant. See Capistran, 759 S.W.2d at 126-27.

          We overrule appellant’s first point of error.

          In his third point of error, appellant contends that Scoggins and Boyle recklessly omitted material facts from the affidavit in order to establish probable cause. Appellant asserts that these omissions violate the rule announced in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).

          In Franks, the Supreme Court held that, if a defendant established by a preponderance of the evidence that a probable cause affidavit contained a material falsehood made knowingly, intentionally, or recklessly, then the falsehood must be excised from the affidavit. See Franks, 438 U.S. at 156, 98 S. Ct. at 2676; Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996). In addition, the Supreme Court stated:

          To mandate an evidentiary hearing for a Franks claim, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

Id. at 171, at 2683.

          In his motion to suppress, appellant did not assert that material omissions from the probable cause affidavit existed, nor did he provide an offer of proof showing material omissions. Instead, appellant attempted to raise his Franks claim for the first time at the motion to suppress hearing. As the San Antonio Court of Appeals stated in Robuck, “It appears appellant believed he could question witnesses on matters not contained in the probable cause affidavit without making the preliminary Franks showing on the alleged omissions; in other words, it appears appellant wanted to wholly relitigate the issue of probable cause for the search warrant, irrespective of Franks.” Robuck v. State, 40 S.W.3d 650, 653 (Tex. App.—San Antonio 2001, pet. ref’d). Because appellant did not make the preliminary showing of deliberate falsehood or reckless disregard required by Franks, his complaint is not preserved on appeal. See id.; Franks, 438 U.S. at 171, 98 S. Ct. at 2683.

          We overrule appellant’s third point of error.

Confidential Informant

          In his second point of error, appellant contends that the trial court erred by declining to order that the identity of the confidential informant be disclosed to the defense. The trial court did not rule on a motion to disclose the identity of a confidential informer, and appellant expressly waived this point at the motion to suppress hearing. See Villegas, 871 S.W.2d at 899.

          We overrule appellant’s second point of error.          

Conclusion

          We affirm the judgment of the trial court.

                                                                        Elsa Alcala

     Justice

Panel consists of Justices Taft, Alcala, and Price.

Do not publish. Tex. R. App. P. 47.4.