Mary Frances Whitaker v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-264-CR





MARY FRANCES WHITAKER,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 106,278, HONORABLE JON N. WISSER, JUDGE PRESIDING

In a trial before the court, appellant entered a plea of guilty to the offense of possession of a controlled substance, methamphetamine, in an amount of less than twenty-eight grams. See Tex. Health & Safety Code Ann. § 481.115 (West Supp. 1994). The trial court deferred adjudication of guilt, placing appellant on probation for a term of five years. In points of error one through three, and point of error five, appellant contends that the trial court erred in denying her motion to suppress. In point of error four, appellant asserts that the trial court erred in refusing to admit the testimony of the issuing magistrate that he would not have issued the warrant if he had been apprised of material omissions of fact. We will overrule appellant's points of error and affirm the order of the trial court.

Armed with a search and arrest warrant, Austin Police Officers searched a residence at 403 West Live Oak Street in Austin on October 10, 1990, where they recovered approximately two grams of methamphetamine, scales and other paraphernalia. Appellant, named as one of the two persons in charge and control of the premises in the warrant, was taken into custody and charged with the instant offense. In her first point of error, appellant contends that the affidavit supporting the search and arrest warrant failed to establish probable cause to search appellant's residence.

The affidavit upon which the warrant is based states that the affiant, Austin Police Officer Liana Tijerina, received information from DPS Intelligence Services Sergeant Garry Stone in October 1990, that during August and September, 1990, Stone had received information from a confidential informant that Rudy Gonzales was presently distributing methamphetamine and marihuana in Austin, and that the informant related that he had been present when Gonzales made a sale of marihuana. Stone had received information from this informant on more than one occasion that had proven to be true and correct, and led to the seizure of narcotics and arrests of persons for possession of narcotics. A second informant had given Stone information in September 1990 that Rudy Gonzales was engaged in the distribution of marihuana in the Austin area. This informant told Stone that he had purchased marihuana from Gonzales on several occasions. Stone had received information from this informant on more than one occasion that had proven to be true.

On October 4, 1990, affiant was introduced to a third informant by Stone. This informant told affiant that a person he knew as "Rudy" was dealing marihuana and methamphetamine in the Austin area. In addition, this informant told affiant that "Rudy" had been arrested with Tina Marie Smith in Williamson County for possession of marihuana and placed in that county's jail. Affiant checked Williamson County arrest records and confirmed that Rudy Gonzales and Tina Marie Smith were arrested for possession of marihuana on April 17, 1990, and placed in the Williamson County jail. The affidavit further reflects that on October 8, 1990, affiant arranged for the purchase of one gram of methamphetamine from Rudy Gonzales for one hundred dollars at a residence located at 5114 Evans Avenue in Austin. Gonzales was driving a vehicle identical as to make, model, and license number as the vehicle driven by a person with the same name in the Williamson County offense.

The third confidential informant made the purchase at the Evans Avenue address. The informant was searched before and after he made the purchase. The same informant arranged for a purchase of methamphetamine at the Evans Avenue address the following day. Surveillance was again conducted and Gonzales was observed arriving in the same vehicle. The informant advised affiant that Gonzales had one-eighth ounce of methamphetamine but the purchase was not consummated. Affiant had Gonzales arrested as he left the site of the aborted sale. A search of Gonzales resulted in the recovery of two clear plastic bags containing methamphetamine and a digital pager, a means of communication that affiant knew from experience and training to be an item commonly used in the sale and distribution of controlled substances. In addition, two twenty dollar bills, identified by serial numbers as having been used in the previous day's purchase, were found on Gonzales' person. Gonzales told the arresting officers that he lived at 403 West Live Oak Street with his girlfriend, Mary Whitaker. A check of electric utility records showed an account in Gonzales' name at this address. The affidavit further states that the officer interviewed Tommye Bradley, who resided at the Evans Avenue address. Bradley informed the officers that Gonzales was selling methamphetamine and marihuana for a living, and that she had purchased methamphetamine from Gonzales for other persons. Bradley told affiant that shortly after the arrest of Gonzales, Mary Whitaker (appellant) called her to say that she was afraid to return to her residence at 403 W. Live Oak for fear of being arrested for what was inside the residence.

Warrant affidavits should be interpreted in a common sense and realistic manner and the magistrate is permitted to draw reasonable inferences. See Jones v. State, 833 S.W.2d 118, 124 (Tex. Crim. App. 1992), cert. denied, 113 S. Ct. 1285 (1993). The magistrate is not bound by such standards as proof beyond a reasonable doubt or by preponderance of the evidence; "rather his sole concern should be probability." Bower v. State, 769 S.W.2d 887, 902 (Tex. Crim. App. 1989), cert. denied, 492 U.S. 927 (1989). Our review of the magistrate's determination must "afford great deference to the issuing magistrate's decision based upon the evidence as a whole." State v. Morgan, 841 S.W.2d 494, 498 (Tex. App.--El Paso 1992, no pet.). It is not necessary that there be first-hand evidence in the affidavit that the contraband is on the premises to be searched to show probable cause. See Bower, 769 S.W.2d at 902. It is only necessary that the facts and circumstances set forth in the affidavit would warrant a man of reasonable caution to believe that the articles sought were located at the place where it was proposed to search. See Bower, 769 S.W.2d at 902.

The affidavit in the instant cause shows that Gonzales was arrested with methamphetamine and money from the previous day's sale in his possession. Gonzales told officers that he lived at 403 West Live Oak with appellant. A named person told affiant that appellant called her following the arrest of Gonzales to state that she was afraid to return to her residence at 403 West Live Oak for fear of being arrested for what was inside the house. Based on the totality of the information contained in the affidavit, the residence occupied by Gonzales and appellant was the logical place to conduct a search for the contraband.

Appellant further contends that probable cause is not shown for the search because the affidavit contains no recitation of the basis underlying the knowledge of the three unnamed informants, nor does the affidavit show the credibility of the third informant or Bradley. It is unnecessary for the affidavit to show informants as reliable or credible where information is corroborated by other facts in the affidavit. See Griese v. State, 820 S.W.2d 389, 392 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd).

Information furnished by informants that Gonzales was distributing methamphetamine and marihuana in the Austin area was confirmed by the controlled buy on October 8 and by Gonzales' possession of those substances, a pager and money used in the October 8 transaction when he was arrested on October 9. Information given by the third informant relative to the arrest of Gonzales in Williamson County was confirmed by the affiant's investigation. Bradley told officers that she had purchased methamphetamine from Gonzales. An admission against penal interest, even by a first-time informant, is a factor indicating reliability. Mejia v. State, 761 S.W.2d 35, 38 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). Moreover, the arrival of Gonzales at Bradley's residence as scheduled on two consecutive days lends credibility to Bradley's statement that she had purchased drugs from Gonzales. We hold that the totality of the information contained in the affidavit furnished the magistrate with a substantial basis for finding that probable cause existed for the issuance of the search warrant for the house occupied by Gonzales and appellant. Appellant's first point of error is overruled.

In her second point of error, appellant urges that the trial court erred in denying her motion to suppress because the affidavit failed to meet the requirements of Article 18.01 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 1994). Article 18.01 requires that "A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested." Our holding that the totality of the information contained in the affidavit furnished the magistrate with a substantial basis for finding that probable cause existed is dispositive of appellant's contention. Article 18.01 imposes no greater standards than those used in appellant's first point of error. See Johnson v. State, 803 S.W.2d 272, 288-89 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 2914 (1991).

Appellant more specifically urges that the affidavit failed to meet the requirement of subsection (c) of article 18.01. Subsection (c) is expressly limited to search warrants issued "pursuant to Subdivision (10) of Article 18.02 of this code." Subdivision (10) of Article 18.02 provides a search warrant may be issued to search for and seize "property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense." Tex. Code Crim. Proc. Ann. art. 18.02(10) (West Supp. 1994). Subsection (c) of article 18.01 imposes conditions for searches under Subdivision (10) of article 18.02 for "mere evidence" that was "not obtainable through search warrants." See Gentry v. State, 640 S.W.2d 899, 902 (Tex. Crim. App. 1982). Applicable to the instant cause is Subdivision (7) of article 18.02 authorizing the issuance of a search warrant for "drugs kept, prepared, or manufactured in violation of the laws of this state." Tex. Code Crim. Proc. Ann. art. 18.02(7) (West Supp. 1994). The instant cause is not subject to the requirements of subsection (c) of article 18.01. Appellant's second point of error is overruled.

In her third point of error, appellant asserts that the trial court erred in denying her motion to suppress because the affidavit supporting the search warrant contained material misstatements of fact. A defendant may challenge a facially sufficient affidavit by showing that it includes a false statement made knowingly, intentionally, or with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In a supplemental motion to suppress, appellant alleged that the affiant deliberately or with reckless disregard for the truth executed an affidavit for the arrest of Rudy Gonzales that varied significantly and materially from the affidavit supporting the search warrant in the instant cause. The motion states that there is a variance relating to the two controlled buys involving the third confidential informant and Gonzales on October 8, 1990, and October 9, 1990. The motion further states that Bradley told defense counsel in a telephone conversation on April 2, 1991, that appellant did not make a statement to her on October 9, 1990 that she was afraid to return to her residence for fear of being arrested for what was inside the residence. However, the motion noted that Bradley declined to make an affidavit confirming her statement to defense counsel.

In order to be entitled to an evidentiary hearing on allegations concerning the veracity of the affidavit, Franks requires that the defendant specifically point out the portion of the affidavit claimed to be false; allegations must be more than conclusory. See Dancy v. State, 728 S.W.2d 772, 781 (Tex. Crim. App.), cert. denied, 484 U.S. 975 (1987). Appellant's motion lacks the specificity required by Franks with respect to the allegation that there is a variance in the affidavits.

At the hearing on appellant's motion, Bradley's testimony clearly supported the averment in the affidavit related to the statement appellant made to her. Appellant points to the following variances in the two affidavits: (1) whether affiant or the third confidential informant arranged for the purchase from Gonzales at Bradley's residence; (2) informant's personal knowledge regarding Gonzales' possession of methamphetamine at the time of the aborted sale; (3) whether Gonzales' vehicle was under surveillance on October 9; and (4) the name of the officer who conducted the field test that showed the substance Gonzales possessed was methamphetamine. Affiant Tijerina testified that there was an element of pressure in the writing of the affidavit for the search warrant due to the possibility that the evidence might be destroyed. Tijerina stated that any omission or variance in the two affidavits was not intentional.

The fruits of a search are required to be suppressed if the "allegation of perjury or reckless disregard is established by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause." Franks, 438 U.S. at 156. In instances where the affiant has "been merely negligent in checking or recording the facts relevant to a probable cause determination," Franks is not applicable. See Dancy, 728 S.W.2d at 782. We hold that appellant has not shown by a preponderance of the evidence that the affiant made the statements in question with the intent or recklessness contemplated by Franks.

Assuming, arguendo, that appellant has met the burden imposed under Franks, the removal of the complained of variances in the affidavit does not render the remaining content of the affidavit insufficient to establish probable cause. Omitting the alleged variances, the affidavit shows (1) four persons informed law enforcement officers that Gonzales was distributing drugs in the Austin area; (2) Gonzales was in possession of methamphetamine, money from the sale of methamphetamine a day earlier, and a pager commonly used in drug trafficking when he was arrested; (3) Gonzales told officers that he lived at the West Live Oak address with appellant; and (4) Bradley told officers that appellant had informed her that she was afraid to return home after Gonzales was arrested for fear of being arrested for what was inside the house. We hold that the totality of this information set forth in the affidavit was sufficient to support the magistrate's finding of probable cause. Appellant's third point of error is overruled.

In her fourth point of error, appellant contends the trial court erred in refusing to admit the suppression hearing testimony of the issuing magistrate that he would not have issued the warrant if he had known: (1) that Gonzales had no opportunity to make a phone call during the hour following his arrest, and only the possibility if he was afforded such an opportunity "after being booked"; (2) that Sergeant Stone called appellant at her place of business in an effort to get her consent to search the West Live Oak residence; and (3) that affiant received the information from Bradley at 8:00 p.m. or 9:00 p.m. about her conversation with appellant rather than "shortly after Gonzales' arrest." Appellant cites no authority nor are we aware of any that would allow the admission of a magistrate's speculative testimony as to what action he would have taken if the affidavit had contained different allegations. Appellant's fourth point of error is overruled.

In her fifth point of error, appellant asserts that the trial court erred in denying her motion to suppress because the affidavit supporting the search warrant contained material omissions of fact. Appellant complains of the failure of the affidavit to show that Sergeant Stone had called appellant to tell her that Gonzales had been arrested, and that he (Stone) had probable cause to believe that narcotics were being stored in the residence appellant and Gonzales shared on West Live Oak Street. In the course of the conversation appellant agreed to meet the officers at the residence in question and allow them to search the house. Appellant did not keep the appointment. It is urged that Stone's call prompted appellant to call Bradley about her fear of returning home.

Omissions from affidavits are treated essentially the same as claims of material misstatements. Melton v. State, 750 S.W.2d 281, 284 (Tex. App.--Houston [14th Dist.] 1988, no pet.). In Melton, omitted from the affidavit was the fact that the informant and the prosecutor had an agreement that if the informant provided information leading to indictable drug possession cases the prosecutor would be lenient with the informant. The Melton court held that the evidence would not support a finding that affiant acted with reckless disregard for the accuracy of the information, and even if the omitted information were included, the affidavit would be facially sufficient.

Any inference that Stone's call prompted appellant's call to Bradley appears to have been negated by Bradley's suppression hearing testimony. Bradley testified that appellant told her there were drugs in her house, and more specifically, "she [appellant] said something about drugs in a jewelry box," a detail that Stone would hardly have known. Bradley stated that appellant told her if she (Bradley) had any drugs that she had better get rid of them. Appellant has not discharged the burden of showing that the affiant acted with reckless disregard of the information she presented to the magistrate. Moreover, if all the complained of omitted information were included, the affidavit would have still been facially sufficient to support issuance of the search warrant. Appellant's fifth point of error is overruled.

The order of the trial court deferring adjudication is affirmed.

Tom G. Davis, Justice

Before Justices Aboussie, Jones and Davis^*

Affirmed

Filed: June 22, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).