Cestro, Aaron v. State ( 2003 )

Opinion issued September 18, 2003

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-02-00905-CR

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AARON CESTRO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 903294

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MEMORANDUM OPINION

Appellant, Aaron Cestro, pleaded guilty to the felony offense of aggravated robbery and pleaded true to enhancement paragraphs, which alleged two prior felony convictions. Pursuant to an agreement with the State, the trial court assessed appellant's punishment at 30 years' confinement. Appellant's sole point of error challenges the denial of his pretrial motion to suppress his identification by an out-of-court lineup. Appellant contends that the affidavit supporting issuance of the "pocket" ⁽¹⁾ warrant against his person contained false information. We affirm.

Background

As the 79-year-old complainant, Mary Nantz, was returning home and walking to her mailbox early one evening, she noticed two young black men walking by her home. One of them turned back, grabbed Nantz's purse, and pushed her to the ground when she resisted. The man ran away with the purse, which contained Nantz's credit card. Nantz received emergency medical treatment for her injuries. A neighbor, John Rulon, who lived about a block away from Nantz, had arrived at his home at about the same time as Nantz and was unloading groceries from his car. Rulon described two similar young men who passed near his home as Rulon was coming out of his home after putting groceries away. The men stopped near Rulon's car and attempted to take something from his car, but desisted when they saw Rulon.

Police officers investigated and alerted merchants in the area to watch for anyone who might attempt to use Nantz's stolen credit card. A clerk at one of the stores produced a receipt showing that the card was used about forty minutes after the robbery. The clerk identified the card user as a regular customer of the store.

Eight days after the robbery, the store clerk alerted police that he had seen the person who had used the stolen card and provided that person's license-plate number. Based on this information, police arrested Cachae Perry and charged her with credit-card abuse. After Perry was arrested, Houston Police Department Detective Tom Keen showed her a photograph of appellant. Perry identified the person in the photo as her live-in boyfriend, but denied that he had given her the stolen credit card, and claimed that a stranger had given it to her.

Detective Keen found Perry's story doubtful and placed appellant's photograph among an array of photographs of five other young black males of similar build, features, and hair, skin, and eye color. Keen showed this array to both Nantz and Rulon. According to the probable-cause affidavit for the arrest warrant for appellant, Rulon "positively" identified appellant from the array, and Nantz "tentatively" identified appellant as her robber and attacker. An arrest warrant was issued, and appellant was placed in a live lineup, from which Nantz identified him as her assailant. Appellant moved to suppress the lineup identification by Nantz.Motion To Suppress

In his sole point of error, appellant contends that the trial court erred by refusing to suppress Nantz's lineup identification. We generally review a trial court's ruling on a motion to suppress for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd).

We defer to the trial court's determination of historical facts in applying this standard and review the court's application of search-and-seizure law de novo. Balentine, 71 S.W.3d at 768; Shpikula, 68 S.W.3d at 218. To support a finding of probable cause, a warrant must provide the magistrate with sufficient information to support an independent judgment that probable cause exists. McFarland v. State, 928 S.W.2d 482, 509 (Tex. Crim. App. 1996). In determining the sufficiency of an affidavit, a reviewing court is limited to the four corners of the affidavit, and the issuing magistrate's determination should be given great deference, and sustained as long as there was a substantial basis for issuing the warrant. See id.; Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996). A reviewing court may not determine probable cause de novo and may only decide whether substantial evidence supports the issuing magistrate's decision. See Meeks v. State, 851 S.W.2d 373, 376 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd).

Appellant moved to suppress all evidence derived as a result of the arrest warrant on the grounds that the affidavit supporting the warrant did not state sufficient probable cause for a magistrate to believe that the appellant had committed a criminal offense. At the hearing on appellant's motion to suppress, Detective Keen testified that Rulon had merely "tentatively" identified appellant from the photos in the array. With respect to Nantz, Keen explained that Nantz "could not be sure" about her identification of appellant from the photo array. Also testifying at the hearing on appellant's motion to suppress, Nantz confirmed Keen's testimony that Nantz was fairly certain, but not absolutely certain, about identifying appellant from the array of photos, but she also testified that she "kept going back" to the same photo, that of appellant, because of the shape of the head and the facial features.

Appellant argued at the hearing on the motion to suppress that a discrepancy between Detective Keen's affidavit and his testimony at the hearing required that Detective Keen's statement of positive identification should have been disregarded from Keen's affidavit. Appellant further claimed that Keen's affidavit was insufficient to support probable cause to issue a "pocket" warrant to arrest appellant without the statement of positive identification. The trial court rejected appellant's challenge and found Detective Keen's affidavit sufficient to support issuance of a warrant for appellant's arrest, based in part on Nantz's tentative identification of appellant. Appellant now contends that the trial court erred by overruling his motion to suppress because Detective Keen made false statements concerning both Nantz's and Rulon's identifications in the probable cause affidavit of the arrest warrant.

Challenges to the truth of probable-cause affidavits trigger the standards established in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978). In Franks, the Supreme Court held that a defendant is entitled to a hearing on his motion to suppress on a preliminary showing that a probable-cause affidavit contained a material falsehood, made knowingly, intentionally, or recklessly. See Franks, 438 U.S. at 155, 98 S. Ct. at 2676. The defendant must state allegations of deliberate falsehood or of reckless disregard for the truth, and the allegations must be accompanied by an offer of proof that identifies the portion of the warrant affidavit claimed to be false. Franks, 438 U.S. at 171, 98 S. Ct. at 2684. The defendant must also show that the remainder of the affidavit is insufficient to support issuance of the warrant. Dancy v. State, 728 S.W.2d 772, 781 (Tex. Crim. App. 1987).

In moving the trial court to suppress Nantz's identification, appellant argued that the affidavit was insufficient to support probable cause to issue the arrest warrant. Appellant's motion did not allege or preliminarily show a deliberate falsehood or reckless disregard, as required by Franks, did not specify which portion of Detective Keen's affidavit was false, and did not contend that the remainder of the affidavit was not sufficient to support issuance of the warrant. See Dancy, 728 S.W.2d at 781. ⁽²⁾ At the conclusion of the hearing on the motion to suppress, appellant pointed out what he perceived as a discrepancy between Keen's affidavit and his testimony at the hearing. Appellant urged the trial court to suppress his post-warrant identification by lineup because Keen had falsely stated, in his affidavit, that Nantz had "positively" identified appellant from the array of photos, but stated at the hearing that Nantz was not certain about identifying appellant from the array. As addressed above, Detective Keen's affidavit described Nantz's identification as "tentative." The statement of positive identification referred to Rulon. Appellant never claimed that Keen made the allegedly false statement knowingly and intentionally or with reckless disregard for the truth. See Franks, 438 U.S. at 171, 98 S. Ct. at 2683; Dancy, 728 S.W.2d at 781. Even if appellant had preserved and presented a Franks claim, Detective Keen's affidavit would withstand scrutiny as sufficient to support issuance of an arrest warrant for appellant. As Franks recognized, a warrant may be valid under settled law of the forum if, after setting aside the inaccurate statement of a positive identification of appellant, the remainder of the probable-cause affidavit is otherwise sufficient to support a finding of probable cause. See Franks, 438 U.S. 171-72, 98 S. Ct. at 2684-85.

Apart from any reference to a "positive" identification of appellant, Detective Keen's affidavit in this case reveals the following: (1) Nantz stated that she saw two young black men walk past her sidewalk before one turned around and robbed her; (2) Nantz tentatively identified appellant as her robber and attacker; (3) the neighbor, Rulon, also saw two young black men appear to try to steal something from his car; (4) Nantz's stolen credit card was used approximately forty minutes after the robbery; (5) a store clerk twice identified the customer using the stolen credit card as appellant's live-in girlfriend, Cachae Perry; (6) Perry was subsequently arrested and charged for credit card abuse.

Constrained to the four corners of the affidavit and according the required deference to the magistrate, see McFarland, 928 S.W.2d at 509, we conclude that Detective Keen's affidavit provided sufficient information to support the magistrate's independent judgment that probable cause existed for the issuance of the arrest warrant against appellant. We further conclude that the trial court did not err by denying appellant's motion to suppress.

We overrule appellant's sole point of error.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).

1. Appellant was arrested before formal criminal charges were filed pursuant to an arrest warrant issued under article 15.03 of the Code of Criminal Procedure.

See Tex. Code Crim. Proc. Ann. art. 15.03 (Vernon 1977).

2. Accordingly, the trial court was under no obligation to conduct a hearing on appellant's motion to suppress.

See Franks, 438 U.S. at 171, 98 S. Ct. at 2683; Robuck v State, 40 S.W.3d 650, 653 (Tex. App.--San Antonio 2001, pet. ref'd).