Jerry Lee Garner v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00082-CR
JERRY LEE GARNER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 11-02476-CRF-272
MEMORANDUM OPINION
Jerry Lee Garner was convicted of possession with intent to deliver cocaine in a
drug free zone. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a); 481.134 (West 2010
& Supp. 2012). He was sentenced to 20 years in prison. We affirm.
After a long investigation, Bryan police determined that Garner and another
individual were selling crack cocaine at two locations. Officers obtained a warrant to
search a residence leased or subleased by Garner. As officers approached the residence,
they were seen by someone leaving the residence. Believing the situation to be
compromised, officers conducted a no-knock entry of the residence. At the same time,
some of the occupants of the residence jumped through a back window of the residence
to escape. Garner was secured in the residence and gave officers a key to a padlocked
closet in Garner’s room. After searching the closet, officers found almost 20 grams of
crack cocaine.
Garner’s sole argument is that the trial court erred in denying his motion to
suppress the cocaine evidence because the officers conducting the search did not
provide him with a copy of the warrant or the inventory.
A trial court's ruling on a motion to suppress is reviewed on appeal for abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006). As the reviewing court, we view all of the
evidence in the light most favorable to the trial court's ruling. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008). The trial court is given almost total deference
in its determination of historical facts, especially if those are based on an assessment of
credibility and demeanor. Garcia-Cantu, 253 S.W.3d at 241. "Thus, the party that
prevailed in the trial court is afforded the strongest legitimate view of the evidence and
all reasonable inferences that may be drawn from that evidence." Id.
Article 18.06(b) of the Code of Criminal Procedure requires a copy of the search
warrant and a copy of a written inventory of the property taken to be presented to the
owner of the place searched or to the person in charge of the place. TEX. CODE CRIM.
PROC. ANN. art. 18.06(b) (West 2005). Although there is some dispute about whether
Garner leased or subleased the residence searched or simply subleased a room in it, it is
Garner v. State Page 2
undisputed that Garner was at least the “person in charge of the place” at the time it
was searched and was required to be presented with a copy of the search warrant and
the written inventory. The officers fell short of full compliance with article 18.06.
However, the Court of Criminal Appeals has consistently held that ministerial
violations of the search warrant statutes do not vitiate the search warrant in the absence
of a showing of prejudice, such as unfair surprise. Pecina v. State, 516 S.W.2d 401, 404
(Tex. Crim. App. 1974); Phenix v. State, 488 S.W.2d 759, 766 (Tex. Crim. App. 1972);
Daltwas v. State, 375 S.W.2d 732, 734 (Tex. Crim. App. 1964); Robles v. State, 711 S.W.2d
752, 753 (Tex. App.—San Antonio 1986, pet. ref’d).
Garner’s only claim to prejudice is that the officers “clearly chose to disregard the
law” and because of this, Garner was unaware of the nature of the search warrant, the
allegations in the affidavit, the directives in the warrant and the evidence taken when
the warrant was executed. This is not enough. Garner testified at the motion to
suppress hearing that he was given a copy of the search warrant and inventory by his
attorney before trial. Nowhere in the record is there any indication that Garner was
surprised, harmed, or prejudiced by the failure of the officers to supply Garner with the
search warrant and inventory at the scene. We find that Garner was not prejudiced by
the officers’ failure to comply with article 18.06(b).
Garner v. State Page 3
Accordingly, the trial court did not abuse its discretion in denying Garner’s
motion to suppress. Garner’s issue is overruled, and the trial court’s judgment is
affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 20, 2012
Do not publish
[CR25]
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