Lazaro Garcia v. State ( 2006 )

Opinion issued October 26, 2006

Opinion issued October 26, 2006

In The

Court of Appeals

For The

First District of Texas

NOS. 01-05-00801-CR

01-05-00825-CR

LAZARO GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 40387

MEMORANDUM OPINION

          A jury convicted appellant, Lazaro Garcia, of the first-degree felony offense of possession of cocaine with intent to deliver, in an amount greater than four grams but less than two hundred grams.  See Tex. Health & Safety Code Ann.  § 481.112(a), (d) (Vernon 2003).  The jury assessed punishment at sixty years’ confinement.  Garcia contends (1) the trial court erred in refusing to consider evidence that a search warrant affidavit contained fraudulent information, (2) the trial court abused its discretion in failing to review audio and videotapes of a confidential informant, and (3) the trial court erred in failing to include an instruction on probable cause in the jury charge.  We conclude that the trial court did not err in failing to consider evidence that the search warrant affidavit contained fraudulent information, and that Garcia waived his complaints regarding the tapes and jury charge error.  We therefore affirm.

Facts

          In June 2004, Detective A. Slater executed a search warrant at Garcia’s apartment.  During the search, Detective Slater found 20.30 grams of crack cocaine, a digital scale, some small plastic bags, a glass pipe, lighters, a gun, money, and a brillo pad, which people often use as a filter to smoke crack cocaine.  After Detective Slater took Garcia into custody, Garcia waived his rights under article 38.22, section 2 of the Texas Code of Criminal Procedure and signed a written statement.  See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005). In the statement, Garcia admitted that he was the sole lessee of the apartment, and that the amount of cocaine found inside the apartment was just less than one ounce.  Garcia further admitted that he had been selling crack cocaine for three months at the time of his arrest. 

During a hearing on a motion to suppress the evidence obtained from the apartment search, Garcia testified contrary to the allegations in the affidavit supporting the search warrant.  Garcia never requested, however, that the trial court hold a Franks hearing, and he never attempted to make the substantial preliminary showing necessary to obtain a Franks hearing.  See Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978).  Garcia testified that he did not sell drugs to anyone on June 2, 2004, in direct contravention to the allegations in the affidavit.  The search warrant affidavit contained information obtained from a confidential informant who, in conjunction with the police, allegedly completed several controlled purchases of crack cocaine from Garcia on June 2, 2004.  The police also made several audio and videotapes of the confidential informant purchasing crack cocaine from Garcia.  At the end of the hearing on the motion to suppress, the trial court concluded that the face of the affidavit contained sufficient information for the magistrate to make a probable cause determination.  The trial court denied Garcia’s motion to suppress evidence and seemed to indicate that it was not deviating from the four corners of the search warrant affidavit in making its decision.

Consideration of Evidence

In his first issue, Garcia contends the trial court erred in not considering evidence that the search warrant affidavit contained fraudulent information in accordance with Franks v. Delaware.  438 U.S. at 155–56, 98 S. Ct. at 2676. When a challenge is made as to whether a search warrant affidavit is legally sufficient to show probable cause, the trial court is limited to the four corners of the affidavit.  Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App. 2003).  If, however, the defendant challenges the warrant affidavit on the ground that it contains known falsehoods, the trial court is not limited to the four corners of the affidavit.  Id. “Limiting a falsity challenge to the four corners of the warrant affidavit negates the underlying challenge and raises serious due process concerns.”  Id.; see also Franks, 438 U.S. at 156, 98 S. Ct. at 2676 (stating that “if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request”).  Thus, if a defendant makes a substantial preliminary showing of deliberate falsity, the trial court is required to go beyond the four corners of the affidavit in a Franks evidentiary hearing.  Cates, 120 S.W.3d at 355 n.3.  To obtain a Franks hearing, a defendant’s motion to suppress must (1) allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false; (2) accompany these allegations with an offer of proof stating the supporting reasons; and (3) show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant.  Id. at 356; Ramsey v. State, 579 S.W.2d 920, 922–23 (Tex. Crim. App. 1979).  A trial court may not consider evidence outside the four corners of a warrant affidavit until the defendant satisfies the three elements of the Franks test.  See Cates, 120 S.W.3d at 355 n.3.

Garcia was not entitled to have the trial court consider evidence challenging the veracity of the search warrant affidavit because he failed to make a sufficient showing to obtain a Franks hearing.  Garcia never attempted to satisfy any of the elements of the Franks test.  Id. at 356; Ramsey, 579 S.W.2d at 922–23.  Thus, because Garcia failed to make the showing required to obtain a Franks hearing, he cannot complain that the trial court failed to consider evidence admissible only during a Franks hearing.  See Cates, 120 S.W.3d at 355 n.3.  Although the trial court allowed Garcia to testify to facts challenging the veracity of the search warrant affidavit, Garcia nonetheless cannot rely upon these facts to challenge the probable cause finding without making the preliminary showing required by Franks. We therefore hold that the trial court did not err in failing to consider Garcia’s testimony regarding the falsity of the affidavit. 

Trial Court Review of the Audio and Videotapes

          In his second issue, Garcia contends that the trial court abused its discretion in failing to review the audio and videotapes of the confidential informant. The State responds that Garcia waived this issue by failing to request review at trial.

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaining party made the complaint to the trial court by a timely request, objection, or motion.  See Tex. R. App. P. 33.1(a).  The party must object at the earliest possible opportunity.  Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998).  The complaining party must also state the grounds for the request, objection, or motion, unless the grounds are apparent from the context.  Tex. R. App. P. 33.1(a).  Furthermore, the trial court must either rule on the request, objection, or motion, expressly or implicitly, or refuse to rule and the complaining party must object to the refusal.  Id.  A motion for new trial will not preserve a complaint for appellate review if the party had an opportunity to make a request, motion, or objection at trial.  See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999).

Garcia first asked the trial court to review the audio and videotapes of the confidential informant in his motion for new trial.  Garcia’s request for trial court review of the tapes was therefore untimely.  See id. Garcia has waived his second issue.

Charge Error

          In his third issue, Garcia contends the trial court erred in failing to include an instruction on probable cause in the jury charge.  The State responds that Garcia waived this issue by failing to request an instruction on probable cause at trial. 

Article 38.23(a) of the Texas Code of Criminal Procedure reads as follows:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). In accordance with article 38.23(a), the trial court must instruct the jury to disregard evidence obtained illegally if the defendant requests the instruction and raises a fact issue concerning the manner in which the State obtained the evidence.  Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986).  To preserve error relating to the jury charge, there must be either an objection or a requested charge.  Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996).  In the absence of an objection or request, failure to include an article 38.23 instruction is not fundamental error.  Kelly v. State, 669 S.W.2d 720, 726 (Tex. Crim. App. 1984); Plattenburg v. State, 972 S.W.2d 913, 920 (Tex. App.—Beaumont 1998, pet. ref’d) (holding that failure to request article 38.23 instruction waives error).

Garcia never requested an instruction on probable cause or objected at trial. He raised the issue for the first time in his motion for new trial.  Garcia therefore waived any objection to the exclusion of a probable cause instruction in the jury charge.   

Conclusion

We hold that the trial court did not err in failing to consider evidence that the search warrant affidavit contained fraudulent information because Garcia did not make the substantial preliminary showing required to obtain a Franks hearing.  We also hold that Garcia waived his complaint regarding the audio and videotapes, and his complaint regarding the jury charge, because he failed to raise these issues at trial.  Accordingly, we affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

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

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