Raymond Scott McCormick v. State ( 2006 )

Opinion filed March 1, 2006

Opinion filed March 1, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                      Nos. 11-04-00222-CR & 11-04-000223-CR

                                                    __________

                          RAYMOND SCOTT McCORMICK, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 259th District Court

                                                          Jones County, Texas

                                             Trial Court Cause Nos. 9197 & 9198

                                                                   O P I N I O N

The trial court convicted Raymond Scott McCormick, upon his pleas of guilty, of the offenses of manufacturing a controlled substance -- methamphetamine (Cause No. 11-04-00222-CR) and possessing or transporting anhydrous ammonia in a container not designed for that purpose (Cause No. 11-04-00223-CR).  Appellant and the State entered into plea bargain agreements, and the trial court assessed punishment in accordance with the plea bargain agreement in each case at confinement for ten years.  Appellant is appealing pretrial matters and also received the trial court=s permission to appeal.  See Tex. R. App. P. 25.2.  We affirm. 

                                                                 Issues Presented

Appellant brings three points of error on appeal.  In the first point, appellant contends that the trial court erred in denying the motion to suppress because the State failed to prove probable cause for the search warrant thereby violating appellant=s constitutional and statutory rights.  In his second point, appellant argues that the trial court erred in taking judicial notice of the contents of the search warrant and the supporting affidavit.  In his final point, appellant asserts that the trial judge erred by failing to sua sponte recuse himself when he became an interested witness during the pretrial hearing. 

                                                               Motion to Suppress

To review the trial court=s ruling on the motion to suppress, we must first determine the applicable standard of review.  Appellant asserts that we must apply a de novo standard of review.  See Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).  We disagree.  The Court of Criminal Appeals addressed the standard of review applicable to a trial court=s finding of probable cause with respect to a search warrant in Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004).  The Swearingen court determined that the standard to be applied to the review of a magistrate=s determination of probable cause in issuing a search warrant is an exception to the general rule set out in Guzman.  Id. at 811 (stating that Guzman applies to warrantless search situations). The Swearingen court held that a magistrate=s determination to issue a search warrant is subject to the deferential standard of review articulated in Illinois v. Gates, 462 U.S. 213 (1983), and Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990).  A reviewing court must give deference to the trial court=s determination of probable cause and affirm that decision Aso long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing.@  Swearingen, 143 S.W.3d at 810 (citing Illinois v. Gates, 462 U.S. at 234-37).  When a challenge is made to the sufficiency of a search warrant affidavit to show probable cause, the trial court is limited to the Afour corners@ of the affidavit.  See Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).

Affidavit -- Four Corners

In this case, Sergeant James C. Rhodes with the Narcotics Service of the Texas Department of Public Safety was the affiant.  In his affidavit, Sergeant Rhodes described the residence and its curtilage and then named and described the suspected parties:  Terry Ann Henry, appellant, and other unidentified persons. The affidavit continues as follows:

3.  It is the belief of affiant that said suspected party has possession of and is concealing at said suspected place in violation of the laws of the State of Texas the following property: Drugs kept, prepared, or manufactured in violation of the laws of this State, to-wit: METHAMPHETAMINE. Further, Affiant believes that suspected party has at said suspected place other paraphernalia, implements, and instruments used in the commission of the offense of Manufacture and/or Delivery of a Controlled Substance. 

4.  Affiant has good reason to believe, does believe, and hereby charges and accuses that on or about 02/17/2003 in JONES County, Texas, the suspected party committed an offense against the laws of the State of Texas, to-wit: Manufacture or Delivery of Substance PG 1 Sec. 481.112 HSC.  On or about said date and at said place he did then and there intentionally and knowingly commit the offense of Manufacturing/Delivery of METHAMPHETAMINE, a controlled substance listed in the Texas Controlled Substances Act.

5. [Sergeant Rhodes lists relevant qualifications, training, and experience.]

Based on Your Affiant[=]s training, experience, and surveillance, the following probable cause has been developed and is detailed as follows.

Suspected Party has been under investigation by your Affiant since 02/17/2003 and suspected of Manufacturing and Delivery of METHAMPHETAMINE.  Your Affiant received information from JONES COUNTY SHERIFF LARRY MOORE who informed your Affiant that the odor of ether was emitting from the area of the suspected place.  Sheriff Moore was informed by an Independent Source that the odor of ether was present from around the suspected place and Sheriff Moore confirmed the information provided by the Independent Source.  Sheriff Moore contacted John H. Murphy, Narcotics Lieutenant with the Texas Department of Public Safety, who in turn drove to the suspected place and also confirmed the odor of ether emitting from the area of the Suspected Place. Lieutenant Murphy contacted Sgt. Teofilo Garcia who then drove to the Suspected Place and detected an acidic odor emitting from the area of the suspected place.  Sgt. Garcia informed Lieutenant Murphy of the suspected odor on which Lieutenant Murphy went to the suspected place and confirmed the acidic odor emitting from the Suspected Place.  It is known by your Affiant that the Suspected Party was arrested for transportation of Anhydrous Ammonia in an unapproved container and Possession of Methamphetamine by the Jones County Sheriff Department on 11/05/1999.  Your Affiant based on training and experience knows Anhydrous Ammonia is a key ingredient for the (Nazi style) manufacture of Methamphetamine.  Your affiant has knowledge that the Suspected Party has been under investigation by the Abilene Police Department Narcotics Service for Manufacture of Methamphetamine and[,] as a result of this investigation, a Search Warrant was executed on 06/21/01.  The Suspected Party was arrested for Manufacture and Delivery of Methamphetamine and convicted of Possession of Methamphetamine within the past twelve (12) months, and is currently serving a probated ten (10) year sentence.  Within the past six- (6) months the Jones County Sheriff=s Department has received numerous telephone calls from Independent Sources in reference to the Manufacture of Methamphetamine occurring from the Suspected Place.

Your Affiant, by ongoing investigation, believes METHAMPHETAMINE is inside the residence.

In reference to the above listed odors.  Your Affiant through training and experience knows that the products, which produce these odors, are utilized in the manufacture of METHAMPHETAMINE, commonly referred to as the ANAZI METHOD.@

Therefore, this information and these circumstances considered in total, your Affiant believes it is highly probabl[e] that a search of the suspected place and premises will yield a quantity of METHAMPHETAMINE and/or a ANAZI STYLE@ Clandestine Laboratory. 

The warrant was signed by a magistrate^[1] on that same day, February 17, 2003, at 11:55 p.m.

The warrant was admitted into evidence without objection.  An unsigned copy of Sergeant Rhodes=s affidavit was offered and admitted over objections to the lack of signature and the substituted last page.  The last page of the affidavit had apparently been lost after it was returned to the magistrate.  At the hearing, an unsworn but true and correct copy of the affidavit was substituted for the original.  Sergeant Rhodes testified that he had sworn to the affidavit before a magistrate and that he and the magistrate had signed it.  Sergeant Rhodes testified that, other than the missing signatures, the affidavit introduced into evidence was identical to the original. 

When a document has been lost or destroyed without bad faith, the original is not required; other evidence of the contents of the document is admissible.  Tex. R. Evid. 1004.  Contrary to appellant=s assertion, the trial court did not take judicial notice of the affidavit or the warrant.  Sergeant Rhodes=s testimony supported the admission of the documents into evidence pursuant to Rule 1004.  Moreover, evidence obtained in good faith pursuant to a search warrant is admissible even if the affiant fails to sign the affidavit.  Tex. Code Crim. Proc. Ann. art. 38.23(b) (Vernon 2005); see Hunter v. State, 92 S.W.3d 596 (Tex. App.CWaco 2002, pet. ref=d)(unsigned affidavit); Brent v. State, 916 S.W.2d 34 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d)(unsigned affidavit); Vance v. State, 759 S.W.2d 498 (Tex. App.CSan Antonio 1988, pet. ref=d)(unsigned affidavit); see also Dunn v. State, 951 S.W.2d 478 (Tex. Crim. App. 1997)(good faith exception applied to unsigned search warrant).  Appellant=s second point of error is overruled. 

Sergeant Rhodes=s affidavit was sufficient to justify the trial court=s finding of probable cause.  Based upon the affidavit, the trial court could have reasonably concluded that metham-phetamine and other items used in its manufacture would be found at the suspected place.  Thus, based upon the four-corners test, probable cause existed for the issuance of the search warrant.

Affidavit -- False Information

In his motion to suppress, appellant also appeared to be asserting a Franks challenge to the search warrant.  See Franks v. Delaware, 438 U.S. 154 (1978).  Appellant argues that the testimony elicited during the hearing indicated a lack of due diligence and a reckless disregard for the truth of the information provided to Sergeant Rhodes. 

In Franks, the Supreme Court addressed the issue of using false information in an affidavit that supports a warrant.  The Court held that, when an allegation of perjury or reckless disregard is established by the defendant at a suppression hearing by a preponderance of the evidence, the false information must be disregarded.  If the affidavit=s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded.  Franks,  438 U.S. at 156; Hinojosa v. State, 4 S.W.3d 240, 246-47 (Tex. Crim. App. 1999). At a Franks hearing, the trial court is the sole fact-finder and judge of the witnesses= credibility and of the weight of the evidence. As such, the trial court is owed great deference, and its ruling will not be disturbed unless it is outside the bounds of reasonable disagreement.  Hinojosa, 4 S.W.3d at 247; Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996). 

At the pretrial hearing in this case, appellant attempted to disprove the allegations regarding the suspected party=s criminal history.  Appellant testified he was not arrested for transporting anhydrous ammonia in 1999 and was not currently serving a ten-year probated sentence for manufacturing or delivering methamphetamine.  Appellant=s testimony did not show that the statements in the affidavit were false.  There were two suspected parties named in the affidavit, and Sergeant Rhodes did not specify which suspected party had the arrest and conviction.  Henry may well have been the suspected party with the relevant criminal history.  Thus, appellant did not meet his burden of showing that the affidavit contained false information on this issue.

Appellant also attempted to prove that the trailer in which he resided was separate from and was not within the curtilage of the manufactured home in which Henry resided. The evidence as to whether appellant=s trailer had a separate address was controverted.  Moreover, even if the trailer was a separate residence with a separate address, the probable cause affidavit and the search warrant clearly identified and included both the trailer and the manufactured home.  The affidavit and warrant also identified both appellant and Henry as suspected parties that were in control of the premises.  Appellant did not show that the affidavit was made in reckless disregard for the truth or that it contained false information.  We hold that the trial court did not err in denying appellant=s motion to suppress.  Appellant=s first point of error is overruled. 

                                                                        Recusal

In his final point, appellant asserts that the trial judge should have sua sponte recused himself when a witness insinuated that the judge lost the original search warrant affidavit and search warrant return, placing the judge in a compromising position as an interested witness in the outcome of the proceedings.  A judge who merely reviews a probable cause affidavit and then issues a search warrant is not required to disqualify himself from later proceedings in that case.  See Kemp v. State, 846 S.W.2d 289, 304-06 (Tex. Crim. App. 1992). The trial judge was not called as a witness in this case, and no motion to recuse was filed.  We cannot find that, under the circumstances of this case, the trial judge erred in failing to recuse himself.  Appellant=s third point of error is overruled.

                                                                     Conclusion

The judgments of the trial court are affirmed. 

PER CURIAM

March 1, 2006

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

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.

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^[1]We note that the magistrate signing the warrant, Judge Brooks Hagler, also heard and ruled on the motion to suppress and rendered judgment in this case.