Andrew Wamsley v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-089-CR
ANDREW WAMSLEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In twelve points, Appellant Andrew Wamsley appeals his conviction of
capital murder. We affirm.
1
See T EX. R. A PP. P. 47.4.
II. Factual and Procedural History
On December 11, 2003, Mansfield police were dispatched to the house
of Rick and Suzanna Wamsley in response to a 911 call. Upon their arrival, the
police discovered Rick and Suzanna dead inside their home. After a sweep of
the house, the police found no signs of forced entry. The police determined
that Rick died as a result of multiple gunshot wounds and stab wounds to his
head and chest, while Suzanna died as a result of a single gunshot wound to
her head and multiple stab wounds to her chest.
The Wamsleys’ son, Appellant, was charged with capital murder. The
State’s principal witness, Susana Toledano, testified that she, Appellant, and
Chelsea Richardson murdered the Wamsleys on the morning of December 11.
Toledano provided the State with a sample of her DNA, which matched
evidence found at the murder scene. Toledano agreed to testify against
Appellant in exchange for a life sentence for the lesser offense of murder.
Toledano testified that Appellant murdered his parents because he wanted the
money from a million dollar life insurance policy covering Rick.
Appellant pleaded not guilty; however, the jury found Appellant guilty as
charged in the indictment. The State sought the death penalty, but the jury
returned a “no” answer to the future dangerousness special issue. Thus, the
2
trial court imposed punishment of life imprisonment. Appellant brought this
appeal.
III. Challenge to Venire Panel
In Appellant’s first point, he contends that the trial court erred by
preventing a veniremember from exercising a juror exemption. In Appellant’s
second and third points, he asserts that he was deprived the intelligent use of
his peremptory and cause challenges when the trial court refused to allow him
the opportunity to question two veniremembers regarding changes in their
circumstances.
A. Applicable Facts
Voir dire began on January 12, 2006. Appellant challenged juror thirty-
one, Joseph McCrary, for cause based on his views about the punishment
range for the lesser included offense of murder, as well as his response to
special issue two dealing with the death penalty. The trial court denied the
challenge for cause. Appellant next challenged juror thirty-two, Linda
Zimmerman, for cause based on her response to special issue two. The trial
court denied this challenge as well.
On February 17, 2006, Appellant filed a motion for additional peremptory
challenges. The motion asserted that because the trial court had denied
Appellant’s challenges for cause against certain veniremembers on January 12,
3
Appellant would now have to exercise peremptory strikes against them. Within
the motion was a list of the veniremembers against whom Appellant intended
to exercise peremptory strikes against; both Joseph McCrary and Linda
Zimmerman were included.
That same day, those veniremembers who had not been excused or
successfully challenged for cause on January 12 were reassembled so that the
State and defense might exercise peremptory challenges. At this time, the trial
court notified the parties that two jurors had contacted the bailiff to inform the
court of changes in their circumstances that had occurred subsequent to their
qualification and that may affect their ability to serve. Juror thirty-one,
McCrary, informed the bailiff that he had recently enrolled in a college course
and would like to claim a student exemption, while juror thirty-two,
Zimmerman, notified the bailiff that her mother had suffered serious health
complications the previous weekend and that her death was imminent.
Appellant requested the opportunity to question both veniremembers on
the issues they raised to determine whether their changes in circumstances
would permit the trial court to excuse them under article 35.03 of the Texas
Code of Criminal Procedure, or would otherwise impact their ability to hear the
case. T EX. C ODE C RIM. P ROC. A NN. art. 35.03 (Vernon Supp. 2007). The trial
court refused Appellant’s request to question the venire members and also
4
refused to excuse McCrary, stating that it was too late for him to claim a
student exemption. Appellant objected, asserting that a juror could claim an
exemption up until the time the jury is empaneled. Appellant then challenged
veniremember Zimmerman for cause for a second time, and once again the trial
court denied the challenge. Subsequently, Appellant’s defense counsel used
peremptory strikes to exclude both McCrary and Zimmerman from the jury.
Appellant requested an additional peremptory challenge to be used on the next
juror considered; the court granted the request as to this specific juror, but
denied all of Appellant’s further requests for additional peremptory challenges.
B. Trial Court’s Refusal to Excuse Juror Number 31
In Appellant’s first point, he argues that the trial court erred by preventing
veniremember McCrary from exercising his student exemption.
Texas Code of Criminal Procedure article 35.03 gives a trial court broad
discretion to excuse prospective jurors for good reason.2 T EX. C ODE C RIM. P ROC.
A NN. art. 35.03; Crutsinger v. State, 206 S.W.3d 607, 608 (Tex. Crim. App.
2006). Under article 35.03, “the court shall . . . hear and determine excuses
2
Article 35.03 governs the hearing of juror excuses in capital murder
cases. August v. State, No. 2-04-117-CR, 2005 WL 1477783 *5 (Tex.
App.—Fort Worth June 23, 2005, pet. ref’d) (mem. op.) (not designated for
publication).
5
offered for not serving as a juror, and if the court deems the excuse sufficient,
the court shall discharge the juror or postpone the juror’s service.” T EX. C ODE
C RIM. P ROC. A NN. art. 35.03. Under section 62.106(1)(a)(3) of the Texas
Government Code, a person may establish an exemption from jury service if the
person is enrolled and in actual attendance at an institution of higher education.
T EX. G OV’T C ODE A NN. § 62.106(1)(a)(3) (Vernon 2005). This is a personal,
optional exemption from jury service, which may be invoked by a venireperson.
Burks v. State, 876 S.W.2d 877, 891 (Tex. Crim. App. 1994). It does not
provide for a statutory exclusion or mandatory disqualification. Id. A trial court
retains the authority to excuse a venireperson up until the time the entire jury
has been empaneled and sworn. See Rousseau v. State, 855 S.W.2d 666,
676-77 (Tex. Crim. App. 1993) (holding that when a veniremember who had
already been questioned and qualified to serve subsequently advised the court
that she wished to claim a childcare exemption, the court retained authority
under article 35.03 to dismiss her from jury service).
The trial court abuses its discretion when it arbitrarily or unreasonably
excuses a juror, without reference to any guiding rules and principles. See
Montgomery v. State, 810 S.W .2d 372, 380 (Tex. Crim. App. 1990); Gregg
v. State, 881 S.W.2d 946, 950-51 (Tex. App.—Corpus Christi 1994, pet.
ref’d). Under an abuse of discretion standard, an appellate court may reverse
6
a trial court’s decision only when it appears that the court applied an erroneous
legal standard, or when no reasonable view of the record could support the trial
court’s conclusion under the correct law and the facts viewed in the light most
favorable to its legal conclusion. See DuBose v. State, 915 S.W.2d 493,
497-98 (Tex. Crim. App. 1996). Even if the appellate court would have
reached a different result, it should not intercede as long as the trial court’s
ruling was within the “zone of reasonable disagreement.” Montgomery, 810
S.W.2d at 391.
Appellant contends that the trial court erred by denying McCrary of his
absolute right to exercise his student exemption. We disagree. Although an
exemption is both personal and optional as to the venireperson, the juror has
no absolute right to the exemption as it is neither a statutory exclusion nor a
mandatory disqualification. Burks, 876 S.W.2d at 891. Although the trial court
could have excused McCrary, it was not required to do so. 3 Thus, Appellant’s
assertion that McCrary had an absolute right to claim his exemption is simply
unfounded.
3
The trial court believed that it was too late for McCrary to claim his
exemption; however, this belief was incorrect because under article 35.03, the
trial court retains the authority to excuse a venireperson up until the time the
entire jury has been empaneled and sworn. See Rousseau, 855 S.W.2d at 676-
77.
7
Furthermore, excuses are considered on a case-by-case basis and are
within the broad discretion of the court. Jasper v. State, 61 S.W.3d 413, 424
(Tex. Crim. App. 2001). Here, the record shows that McCrary was not a
student at the time of individual voir dire, but only later chose to enroll in
college courses. By this point, McCrary had already been questioned at length
and had been qualified to sit on the jury of a capital murder case. Nothing in
the record indicated that McCrary was unfit to serve for any purpose. Based
on the preceding facts and the trial court’s interest in assuring that a sufficient
panel existed from which to choose a jury, it was well within the trial court’s
discretion to reject McCrary’s request to be excused from further proceedings.
Therefore, we conclude that the trial court did not abuse its discretion in
refusing to allow McCrary to claim a student exemption. See Montgomery, 810
S.W.3d at 380. Accordingly, we overrule Appellant’s first point.
C. Alleged Denial of Intelligent Use of Peremptory Strikes and Challenges for
Cause
In Appellant’s second and third points, he contends that because the trial
court erroneously denied his request to question veniremembers McCrary and
Zimmerman about changes in their circumstances that occurred after they had
been qualified to serve, he was unable to intelligently exercise his peremptory
strikes and challenges for cause.
8
1. Applicable Law
The Sixth Amendment guarantees the assistance of counsel and the right
to a trial before an impartial jury. Franklin v. State, 138 S.W.3d 351, 354 (Tex.
Crim. App. 2004). Part of the constitutional guarantee of the right to an
impartial jury includes adequate voir dire to question veniremembers in order to
identify unqualified jurors and intelligently exercise peremptory challenges and
challenges for cause. See id. When a defendant is prevented from questioning
the venire, he is prevented from obtaining information, which implicates
constitutional protections. Id. at 356.
2. Analysis
Here, the trial court refused Appellant’s request to question
veniremembers McCrary and Zimmerman on whether the changes in their
circumstances would warrant dismissal under article 35.03 or would otherwise
impact their ability to hear the case. See T EX . C ODE C RIM. P ROC. A NN. art.
35.03.
After reviewing the record, we conclude that if the trial court had
permitted additional questioning of McCrary and Zimmerman regarding their
changed circumstances, the questioning could have yielded information that
could have led to the exercise of a challenge for cause. Although there is no
“personal business” reason set out as grounds for a challenge for cause in the
9
statute, the court of criminal appeals has held that a challenge for cause may
be asserted based on a juror’s inability to give fair consideration to the case due
to personal concerns. See T EX. C ODE C RIM. P ROC. A NN. art. 35.16(a), (b), or (c)
(Vernon Supp. 2007); Burks, 876 S.W.2d at 896. Thus, Appellant should have
been permitted to further question McCrary and Zimmerman regarding their
changed circumstances because additional questioning may have revealed
whether they would have been unable to give fair consideration to the case.
See Burks, 876 S.W.2d at 896.
3. Harm Analysis
The harm analysis traditionally applied to the erroneous denial of a
defendant’s challenge for cause also applies to the erroneous prohibition of
proper questioning of individual prospective jurors. Anson v. State, 959
S.W.2d 203, 204 (Tex. Crim. App. 1997), cert. dismissed, 525 U.S. 924
(1998). When a trial court erroneously prohibits a defendant from properly
questioning individual prospective jurors, the defendant suffers harm if he has
been forced to use a peremptory challenge he would not have otherwise used
but for the trial court’s error. Id. A reviewing court may determine that the
defendant was harmed only if the defendant (1) exhausts all of his peremptory
challenges, (2) he requests more challenges, (3) his request is denied, and (4)
he identifies an objectionable person seated on the jury on whom he would
10
have exercised a peremptory challenge. Id. (citing Janecka v. State, 937
S.W.2d 456, 470-71 & n. 9 (Tex. Crim. App. 1996) (per curiam)). Essentially,
a defendant is harmed only if he was forced, in effect, to blindly exercise a
peremptory challenge as to a single veniremember to prevent him from sitting
on the jury, and this preventative use of the peremptory challenge subsequently
results in the deprivation of a peremptory challenge he would have used later
on. See Janecka, 937 S.W.2d at 470.
Although we have determined that the trial court erroneously prohibited
Appellant from asking proper questions of certain individual prospective jurors,
Appellant’s claim that he was unable to intelligently exercise his challenges for
cause and peremptory strikes must nevertheless fail because Appellant was not
forced to exercise peremptory challenges on McCrary and Zimmerman due to
the trial court’s error. After jury selection was completed, Appellant made a bill
of exception in which McCrary testified that if he were required to serve on the
jury, his professors were willing to work with him regarding his absence.
Zimmerman also testified and stated that if she had been forced to serve as a
juror “it would have been tough” considering her mother’s death was imminent,
but that she would have been able to give Appellant a fair trial. The testimony
developed by Appellant in the bill of exception indicates that neither McCrary
nor Zimmerman’s personal concerns would have prevented or impaired their
11
performance of their duties as jurors, or would have kept them from being fair
and impartial jurors. Thus, Appellant was not harmed by the trial court’s refusal
to allow additional questioning because Appellant’s own bill of exception shows
that such questioning would not have revealed grounds for a challenge of
cause.
Furthermore, Appellant cannot plausibly claim that had the trial court
allowed him to question McCrary and Zimmerman regarding their changed
circumstances he still would not have exercised his peremptory strikes on them.
The record shows that after Appellant’s initial challenges for cause of McCrary
and Zimmerman were denied, Appellant filed a motion for additional peremptory
challenges in which he specifically named McCrary and Zimmerman as two
persons he wished to exercise his peremptory strike on based on answers they
had given during individual voir dire.4 Appellant filed this motion before any
peremptory strikes were used and prior to learning that McCrary and
4
Appellant initially attempted to challenge juror McCrary for cause due to
McCrary’s inability to consider the entire range of punishment on the lesser
offense of murder, and because McCrary believed that by finding Appellant
guilty as a party to the offense of capital murder he would have already
answered special issue two in the affirmative. Similarly, at the conclusion of
individual voir dire of juror Zimmerman, Appellant challenged her for cause
because she believed that by finding Appellant guilty as a party to the offense
of capital murder she would have already answered special issue two in the
affirmative. The trial court denied both challenges.
12
Zimmerman had notified the trial court of their changed circumstances. Based
on these facts, we are not convinced that Appellant was forced to “blindly”
exercise his peremptory challenges on McCrary and Zimmerman because the
trial court denied him the opportunity to ask them additional questions or denied
his challenges for cause. See Janecka, 937 S.W.2d at 470. The record
demonstrates that Appellant already intended to strike these two individuals
based on their individual voir dire answers; thus, his contention that he would
have used the peremptory challenges he wasted on McCrary and Zimmerman
on other, less favorable jurors is simply not believable. See id. Accordingly, we
hold that the trial court’s error in denying additional questioning did not
contribute to Appellant’s conviction or punishment, and so we overrule
Appellant’s second and third points.
IV. Motion to Quash
In Appellant’s twelfth point he argues that the trial court erred in denying
his motion to quash the jury panel due to noncompliance with proper jury
selection procedures when, without a presiding judge and outside of his
presence, the prospective jurors submitted juror cards and were granted
purported disqualifications and excuses.
13
A. Applicable Law
Texas Code of Criminal Procedure article 35.03, section 2 provides that
under a plan approved by the commissioner’s court of the county, “in a case
other than a capital felony case, the court’s designee may hear and determine
an excuse” and postpone a juror’s service. 5 T EX . C ODE C RIM. P ROC. A NN. art.
35.03, § 2; Chambers v. State, 903 S.W.2d 21, 29 (Tex. Crim. App. 1995).
The court of criminal appeals has previously held that when article 35.03
section 2 is viewed in the context of the jury formation process, the language
does not prohibit the general assembly judge from designating personnel to
make such decisions. Chambers, 903 S.W.2d at 30. This is because at the
time the summoned jurors apply for excuses, they have not been assigned to
any particular case. Id. There is no way of knowing what kind of case the
prospective jurors would subsequently be assigned to, capital or noncapital. Id.
Thus, article 35.03(2) should be construed as referring only to the distinction
5
Generally, when prospective jurors are initially summoned, they are
assembled in a general jury pool or general assembly. Jasper, 61 S.W.3d at
422-23. Members of the general assembly are qualified on their ability to
serve, and exemptions and excuses are heard and ruled on by the judge
presiding over the general assembly. T EX. G OV’T C ODE A NN. § 62.016 (Vernon
2005); Jasper, 61 S.W.3d at 423. Prospective jurors who are not disqualified,
exempt, or excused are divided into trial panels and sent to the individual courts
trying the cases. Jasper, 61 S.W.3d at 423. At that point, attorney voir dire
will result in the jury that will ultimately hear the case. Id.
14
between a special venire and the formation of panels through a general
assembly. Id. In the case of a special venire called in a capital case, the trial
judge cannot designate others to make decisions with respect to excuses. Id.
B. Analysis
Paula Morales, a jury bailiff for Tarrant County, testified that on January
12, 2006 prospective jurors were assembled in a general jury pool. Morales
and her staff heard requests for exemption and disqualifications, and they
subsequently excused a number of individuals before a jury panel was assigned
to Appellant’s case. From the remaining pool, one hundred and fifty individuals
were sent to comprise the jury panel for this case.
Appellant argues that because he was charged with a capital crime,
article 35.03(2) requires that the trial court, rather than Morales and her staff,
hear excuses and determine disqualifications. However, we conclude
otherwise. Here, the potential jurors that were granted excuses by court
designees were general assembly veniremembers who were not assigned to
Appellant’s case or any other particular case. Nor had a special venire been
15
granted.6 Therefore, under the existing interpretation of article 35.03(2), the
fact that this is a capital murder case does not prohibit the general assembly
judge from designating personnel to make such decisions. Chambers, 903
S.W.2d at 30.
Appellant further contends that because the veniremember’s excuses and
disqualifications were not handled in either his or his attorney’s presence, the
panel should have been quashed. Again, we hold otherwise. Texas Code of
Criminal Procedure article 33.03 provides in relevant part that “[i]n all
prosecutions for felonies, the defendant must be personally present at the
trial[;]” however, the general assembly is not considered part of Appellant’s trial
because particular jurors who were summoned had not been assigned to a
particular case. See Chambers, 903 S.W.2d at 31. For this reason, neither
Appellant nor his counsel were entitled to be present; therefore, the trial court
did not err in refusing to quash the panel. See id. Accordingly, we overrule
Appellant’s twelfth point.
6
Because more than one hundred jurors were called for service the week
of Appellant’s trial, the decision to grant a special venire was within the
discretion of the trial court. See T EX. C ODE C RIM. P ROC. A NN. art. 34.01 (Vernon
Supp. 2007); Barnes v. State, 876 S.W.2d 316, 324 (Tex. Crim. App. 1994).
16
V. Batson’s Applicability to Jury Shuffle
In Appellant’s seventh point he contends that the trial court violated the
federal equal protection clause by overruling his Batson v. Kentucky objection
to the State’s venire panel shuffle request.
A. Applicable Law
Article 35.11 of the Texas Code of Criminal Procedure provides the
defendant with a right to a shuffle of the jury panel. See T EX. C ODE C RIM. P ROC.
A NN. art. 35.11 (Vernon Supp. 2007); Ex parte Daigle, 848 S.W.2d 691, 692
(Tex. Crim. App. 1993). A request is timely if made prior to commencement
of voir dire. Latham v. State, 656 S.W.2d 478, 479 (Tex. Crim. App. 1983).
In Batson v. Kentucky, the Supreme Court held that racial discrimination
in the use of peremptory challenges denies a defendant the equal protection of
the law guaranteed by the U.S. Constitution. Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712 (1986). But the Court of Criminal Appeals has never held
that Batson applies to jury shuffles. See Ladd v. State, 3 S.W.3d 547, 563 n.9
(Tex. Crim. App. 1999) (stating in a footnote that it does not endorse the view
that Batson extends to jury shuffles), cert. denied, 529 U.S. 1070 (2000).
B. Analysis
In the case before us, the State requested a shuffle of the panel after the
venire was assembled. Appellant objected to the shuffle on the basis of Batson
17
v. Kentucky, arguing that the motive for the shuffle was not race-neutral due
to the disproportionate number of minorities in the first seventy-five panel
members. The trial court overruled the objection.
Despite Appellant’s attempt to persuade this court that Batson is
applicable to jury shuffles, we have not found, nor has Appellant shown us, any
case law that directly applies Batson to a jury shuffle. In contrast, the court of
criminal appeals averred in Ladd, albiet in dicta, that it does not endorse the
view that Batson applies to jury shuffles. See id.; see also Ashorn v. State, 77
S.W.3d 405, 408 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (stating
that the court of criminal appeals has declared that its footnotes are dicta).
Appellant attempts to support his position by directing us to Miller-El v. Dretke,
545 U.S. 231, 125 S. Ct. 2317 (2005), in which the United States Supreme
Court held that the prosecutor’s jury shuffle request was a clue indicating his
intent to use his peremptory challenges in a discriminatory fashion. Although
this case demonstrates that the prosecution’s use of a jury shuffle may be
examined in determining whether broader patterns of discriminatory practice are
used during jury selection, the court did not definitively hold that a Batson
challenge extends beyond peremptory challenges and into the realm of jury
shuffles. Id. Therefore, we will not make such a determination either. Because
18
Appellant asserts a position that is not supported by precedent, we overrule his
seventh point.
VI. Admissibility of Witness’s Inconsistent Statements
In Appellant’s fourth, fifth, and sixth points he contends that the trial
court violated the Confrontation Clause and Texas Rules of Evidence 613(b) by
excluding prior inconsistent statements made by Sarah Wamsley, Rick and
Suzanna’s daughter, that would have impeached her testimony and corrected
the false impressions she created on direct examination.
A. Applicable Law
A trial court’s evidentiary rulings are reviewed under an abuse of
discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
App. 2000). The reviewing court should not reverse the trial court if its ruling
was within the zone of reasonable disagreement. Montgomery, 810 S.W.2d
at 391.
The constitutional right of confrontation provides that the accused shall
enjoy the right . . . to be confronted with the witnesses against him. U.S.
C ONST. amend. VI. A primary interest secured by the Confrontation Clause is
the right of cross-examination. Lopez v. State, 18 S.W.3d 220, 222 (Tex.
Crim. App. 2000). It does not follow, of course, that the Confrontation Clause
of the Sixth Amendment prevents a trial judge from imposing any limits on
19
defense counsel’s inquiry into the potential bias of a prosecution witness.
Delamora v. State, 128 S.W.3d 344, 364 (Tex. App.—Austin 2004, pet. ref’d).
On the contrary, trial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice, confusion
of the issues, the witness’s safety, or interrogation that is repetitive or only
marginally relevant. Lopez, 18 S.W.3d at 222. The Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent,
the defense might wish. Delamora, 128 S.W.3d at 364.
In general, witnesses may not be impeached regarding collateral matters.
Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990). A collateral
matter is one which seeks only to test a witness’s general credibility or relates
to facts irrelevant to issues at trial. Keller v. State, 662 S.W.2d 362, 365 (Tex.
Crim. App. 1984); Cortez v. State, No. 2-05-147-CR, 2006 WL 1563275, at
*11 (Tex. App.—Fort W orth June 8, 2006, pet. ref’d) (mem. op.) (not
designated for publication). The test as to whether a matter is collateral is
whether the cross-examining party would be entitled to prove it as a part of his
case tending to establish his plea. Bates v. State, 587 S.W.2d 121, 133 (Tex.
Crim. App. 1979). When a witness leaves a false impression concerning a
20
matter relating to his or her credibility, the opposing party is allowed to correct
that false impression. Ramirez, 802 S.W.2d at 676. However, this exception
does not apply when the false impression is created by cross-examination. See
Shipman v. State, 604 S.W.2d 182, 183-84 (Tex. Crim. App. 1980).
B. Applicable Facts
On direct examination, Sarah testified that her adolescence was difficult
for both herself and her parents because she was a “wild child.” She received
both medication and therapy for her psychological problems, but stated that she
did not did not work through all of her issues until about a year after she left
Todd Cleveland, the father of her child. She claimed that her parents were
supportive throughout this time.
On cross-examination, Sarah testified that while she and her parents had
arguments, they were still supportive of her. Appellant also asked Sarah
whether her mother had ever talked to her about getting a divorce; Sarah stated
that while her parents had their difficulties, they had not discussed any plans
for divorce with her. Upon Appellant’s inquiry, Sarah testified that she had
voluntarily admitted herself into Millwood Hospital because of the troubles she
was having with the father of her child.
During cross-examination of Sarah, Appellant sought to introduce prior
inconsistent statements to impeach Sarah’s testimony; however, the trial court
21
sustained the State’s objections on relevance grounds. Appellant asserted that
the evidence was relevant because Sarah’s testimony created the false
impressions that her parents were “always” supportive of her, that the sole
reason she entered therapy was because of the ongoing problems she had with
the father of her child, and that she did not know of any plans her parents may
have had for divorce. The trial court permitted Appellant to ask Sarah
questions outside the jury’s presence as an offer of proof under Texas Rule of
Evidence 103.7
C. Analysis
After reviewing the record, we determine that the trial court properly
limited Appellant’s cross-examination of Sarah to relevant matters. The issues
that Appellant sought to cross-examine Sarah on were collateral, and therefore
the general rule that a witness may not be impeached regarding collateral
matters applies. See Ramirez, 802 S.W.2d at 676. Whether the Wamsleys
were supportive of Sarah, whether Sarah knew of any plans her parents may
have had to divorce, and the reason Sarah entered therapy was not evidence
7
In Appellant’s offer of proof, Appellant questioned Sarah regarding
statements she made to her therapist while undergoing psychological treatment
at Millwood Hospital. Each of the questions addressed the difficulties that
Sarah had with her parents, how they made her feel, as well as the problems
that Rick and Suzanna had with one another. Sarah either denied or did not
recall making any of the statements Appellant questioned her on.
22
that Appellant could have relied on in his case-in-chief to show that he had not
committed the murders of his parents. See id.
Appellant attempts to show that even if these issues were collateral, the
trial court should have permitted him to cross-examine Sarah because her
testimony created false impressions regarding her credibility that needed to be
corrected. He relies on the exception that if a witness leaves a false impression
concerning a matter relating to his or her credibility, then the opposing party is
allowed to correct that false impression. See id. Specifically, Appellant argues
that Sarah’s testimony created the false impression that (1) the Wamsleys were
always supportive of her, (2) that she did not know of her parent’s plans for
divorce, and (3) that all of Sarah’s problems were related to a bad relationship
with Todd Cleveland. He contends that he should have been permitted to
cross-examine Sarah with statements she made while in therapy that would
have corrected these false impressions.
We first evaluate Appellant’s argument that Sarah’s testimony created the
false impression that her parents were always supportive of her. The issue of
her parent’s support arose when the prosecutor asked Sarah whether her
parents had been supportive of her while she underwent therapy for
psychological problems. When asked whether her parents had been supportive
23
during this time Sarah answered “yes”; in response to the question of whether
they had continued to be supportive of her, Sarah answered, “always.”
After examining cases in which the false impression exception applied,
we determine that the exception is not applicable here. The testimony before
us today differs greatly from situations in which the “false impression”
exception is typically applied. For instance, in Ex parte Carter, 621 S.W.2d
786, 788 (Tex. Crim. App. 1981), the appellant’s direct testimony conveyed
the distinct impression that his two prior convictions and two prior arrests
constituted his entire “record,” including convictions and arrests. The tenor of
appellant’s direct testimony was that, except for those four instances, his
“record” was clean. In contrast, the appellant had been arrested and booked
over thirteen times. The court held that it was permissible to impeach the
appellant with evidence of these additional arrests because the appellant had
given a false impression of his record. Carter, 621 S.W.2d at 788. In that
case, the only way that the jury was going to learn that the appellant’s
testimony was incorrect was if the court allowed the State to impeach the
appellant. In contrast, our review of the record shows that although Sarah
stated on direct that her parents were always supportive of her, this testimony
was balanced by her testimony on cross-examination in which she stated that
even though she and her parents had arguments, her parents still supported her.
24
Based on the combination of her testimony on direct and cross-examination, the
jury was provided with an impression that while Sarah’s relationship with her
parents was not without disapproval and trouble at different times, overall,
Sarah’s parents supported her. Thus, we conclude that the jury was not left
with a false impression of Sarah’s relationship with her parents that needed to
be corrected by additional cross-examination.
In regard to the second and third statements, we determine that even if
Sarah’s testimony created the false impressions that she did not know of her
parent’s plans for divorce and that all of her problems were related to a bad
relationship with Todd Cleveland, the trial court properly denied cross-
examination on these issues. Our review of the record shows that neither of
these “false impressions” were created by Sarah’s testimony on direct
examination; in contrast, it was Appellant who raised them during cross-
examination. It was Appellant who asked Sarah if the only reason she
voluntarily admitted herself into treatment was because of her problems with
her child’s father. Similarly, it was Appellant who raised the issue of whether
Sarah knew of any plans her parents may have had to divorce. Because a party
may not rely on its own questioning on cross-examination to contradict a
witness and get into evidence collateral matters which would otherwise be
inadmissible, we determine that the trial court did not abuse its discretion in
25
prohibiting Appellant from impeaching Sarah on these collateral issues. See
Shipman, 604 S.W.2d at 185.
Furthermore, even if the trial court had permitted Appellant to cross-
examine Sarah on any of these issues, it would not have revealed bias or
motivation to testify falsely on Sarah’s behalf. Appellant desired to cross-
examine Sarah with prior inconsistent statements to impeach her credibility.
Specifically, he claimed that the inconsistency of her statements would
demonstrate that Sarah had a motive to testify falsely because she was a
named beneficiary in her parent’s will, and that her inheritance would be greater
if she was the sole beneficiary. However, even without cross-examination on
the statements Sarah made in therapy, Appellant had already been allowed to
establish that Sarah had gained financially from her parent’s death as she was
a named beneficiary of her parent’s estate. Any possible bias or motive Sarah
would have to testify falsely had already been clearly presented to the jury.
Therefore, Appellant had already been afforded the opportunity for a thorough
and effective cross-examination, and any additional cross-examination was
unnecessary. See Lopez, 18 S.W.3d at 222.
In conclusion, we hold that the trial court did not abuse its discretion in
limiting Appellant’s cross-examination of Sarah when he had been afforded the
26
opportunity for effective cross-examination. See id. Accordingly, we overrule
Appellant’s fourth, fifth, and sixth points.
VII. Motion to Suppress—Timing of Execution of Search Warrant
In Appellant’s eighth point he argues that the trial court erred by failing
to suppress blood and DNA evidence because the repeated search of his vehicle
went beyond the temporal scope and authority of the warrant and was
therefore unlawful. In Appellant’s eleventh point he contends that the
warrantless seizure of his automobile was a violation of the Fourth Amendment.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court’s decision, we do not engage in our own
factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Wiede v. State, 214
S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855
(Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
27
deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson
v. State, 68 S.W .3d 644, 652-53 (Tex. Crim. App. 2002). But when
application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.
Stated another way, when reviewing the trial court’s ruling on a motion
to suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818-19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 819. We must uphold the trial court’s ruling if it is supported by the
record and correct under any theory of law applicable to the case even if the
28
trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d
736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404
(Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
B. Applicable Law
The Fourth Amendment protects against unreasonable searches and
seizures. U.S. C ONST. amend. IV. Generally, a search conducted without a
warrant is considered per se unreasonable. McGee v. State, 105 S.W.3d 609,
615 (Tex. Crim. App. 2003). But there is an exception for vehicles— a
warrantless search of a vehicle is reasonable if law enforcement officials have
probable cause to believe that the vehicle contains evidence of a crime.
Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S. Ct. 1975, 1980-81 (1970);
Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Amos v. State,
819 S.W.2d 156, 160-61 (Tex. Crim. App. 1991). Less rigorous warrant
requirements govern vehicles because the expectation of privacy with respect
to one’s automobile is significantly less than that relating to one’s home or
office. Wiede, 214 S.W.3d at 24.
There is no requirement that the warrantless search of a vehicle occur
contemporaneously with its lawful seizure. U.S. v. Johns, 469 U.S. 478, 484,
105 S. Ct. 881, 885 (1985). Once probable cause to believe that a car
contains evidence of a crime is established, the officers can conduct a valid
29
search of the car immediately, without a warrant. Amos, 819 S.W.2d at 161.
There is no requirement of exigent circumstances to justify a warrantless search
of a vehicle. Johns, 469 U.S. at 484, 105 S. Ct. at 885; State v. Guzman,
959 S.W.2d 631, 634 (Tex. Crim. App. 1998).
Probable cause exists when, under the totality of the circumstances, there
is a “fair probability” that contraband or evidence of a crime will be found in the
specified location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App.
2007). When the facts and circumstances within the knowledge of the officer
on the scene and of which he has reasonably trustworthy information would
lead a man of reasonable caution and prudence to believe that he will find the
instrumentality of a crime or evidence pertaining to a crime, probable cause
exists. Barber v. State, 611 S.W.2d 67, 68 (Tex. Crim. App. 1981). The sum
of the information known to the cooperating officers at the time of a search is
to be considered in determining whether there was sufficient probable cause.
Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982).
C. Analysis
Appellant contends that the warrantless seizure of his vehicle and its
subsequent search violated the Fourth Amendment. Specifically, he argues that
the searches conducted on December 17 and 18, 2003, and February 5, 2004,
were illegal because the police conducted the searches under the authority of
30
a warrant that was no longer valid under articles 18.06(a) and 18.07 of the
Texas Code of Criminal Procedure.8
1. Seizure and Search of Appellant’s Car
On December 12, 2003, Appellant signed a consent to search his vehicle,
a 1998 Ford Mustang. Officer Mark Kelly searched the vehicle pursuant to
consent and recovered a latex glove from the backseat floorboard. Appellant
then withdrew his consent. Mansfield police secured the vehicle and held it in
their impound lot until they could obtain a search warrant. Police obtained a
warrant by 7:00 p.m. on that day. The next day, December 13, Tom Ekis of
Forensic Consultants conducted Luminol testing on the interior of the vehicle,
and various cuttings were taken from the vehicle. On December 17, Officer
Mark Kelly conducted additional Luminol testing on the Mustang’s interior and
recommended that certain pieces be removed from the vehicle. The following
day, December 18, police removed cuttings from the front passenger headrest
cover, the front passenger seat’s back cover, the trunk fabric cover, and the
back seat’s cover on the passenger side. On February 5, 2004, the police
8
Articles 18.06(a) and 18.07 provide that a search warrant must be
executed within three days from the time of its issuance. See T EX. C ODE C RIM.
P ROC. A NN. art. 18.06(a), 18.07 (Vernon Supp. 2007). Any evidence recovered
pursuant to an entry into a vehicle after the three-day period has been illegally
obtained and therefore should be excluded. Green v. State, 799 S.W.2d 756,
759 (Tex. Crim. App. 1990).
31
removed additional items from the Mustang, including the back side of the front
passenger seat, the foam seat bottom from the front passenger seat, the carpet
below the front passenger seat, and a piece of cotton that was lying under the
front passenger seat.
2. Appellant’s Motion to Suppress and the Trial Court’s Findings of Facts
At a pretrial hearing on his motion to suppress, Appellant argued that the
police searched the vehicle repeatedly after the temporal scope and authority
of the warrant had expired when they entered his vehicle on December 17 and
18, 2003, and February 5, 2004. The trial court overruled Appellant’s motion
to suppress and entered findings of fact.
The trial court found that Detective Ralph Standefer was the lead
detective in the investigation of the Wamsleys’ murders. He was on the scene
on December 12, 2003, when Appellant arrived. The court found that upon the
detective’s request, Appellant voluntarily followed him back to the Mansfield
Police Department to talk, where he voluntarily signed a form giving consent to
search his vehicle. While searching Appellant’s car, they found a white latex
glove as well as several receipts; Appellant immediately withdrew his consent
to search. The trial court found that Detective Standefer kept Appellant’s
vehicle after he withdrew his consent to search, and that
32
at the time the vehicle in question was secured at the Mansfield
Police Department to await the signing of a search warrant that
[Appellant] had become a suspect, that the vehicle was registered
to the victims of the offense, Rick Wamsley and Suzanna Wamsley,
that the vehicle had been missing from the scene of the offense
and that it was then believed that since it was missing from the
victims’ residence that the actor(s) may have driven the vehicle
from the residence after the offense and may contain blood
evidence.
The trial court also found under the circumstances it was reasonable to secure
the vehicle to await the signing of a search warrant. It further found that the
facts recited in the affidavit gave the affiant probable cause for his beliefs that
the vehicle contained evidence, and were sufficient for the magistrate to find
that the affiant had probable cause to issue the warrant. The warrant was
issued on December 12, 2003, and when it was executed on December 13, the
presence of blood was detected by Luminol testing. The court further found
that the subsequent entries of the car on December 17 and 18, 2003 and
February 5, 2004 were not new searches of the vehicle, but entries made for
the purpose of removing and testing what had already been detected and seized
by the police on December 13, 2003.
3. Harm Analysis
Assuming without deciding that the trial court erred in overruling
Appellant’s motion to suppress the evidence seized from Appellant’s vehicle,
we determine that any error was harmless.
33
The harm analysis for the erroneous admission of evidence obtained in
violation of the Fourth Amendment must be conducted under Rule 44.2(a)’s
constitutional standard. T EX. R. A PP. P. 44.2(a); Hernandez v. State, 60 S.W.3d
106, 108 (Tex. Crim. App. 2001). The question is whether the trial court’s
denial of Appellant’s motion to suppress and admission of the evidence was
harmless beyond a reasonable doubt. See Williams v. State, 958 S.W.2d 186,
194 (Tex. Crim. App. 1997). In applying the “harmless error” test, our primary
question is whether there is a “reasonable possibility” that the error might have
contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999).
Our harmless error analysis should not focus on the propriety of the
outcome of the trial; instead, we should calculate as much as possible the
probable impact on the jury in light of the existence of other evidence.
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied,
532 U.S. 944 (2001). We consider the source and nature of the error, the
extent that it was emphasized by the State, its probable collateral implications,
the weight a juror would probably place on the error, and whether declaring it
harmless would be likely to encourage the State to repeat it with impunity.
Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). This requires
34
us to evaluate the entire record in a neutral, impartial, and even-handed manner,
not “in the light most favorable to the prosecution.” Id. at 586.
A review of the record shows that Carolyn Van Winkle, who is employed
by the DNA section of the Tarrant County Medical Examiner’s crime laboratory,
testified at trial that she examined cuttings of upholstery and carpet taken from
Appellant’s Mustang and identified some faint, diffuse stains. Some of the
stains tested positive with a blood reagent, and she was able to identify those
stains as human blood. Van Winkle also testified that she was able to get a
partial DNA profile of Chelsea Richardson from a couple of bloodstains on the
upholstery sample, and was unable to exclude Chelsea as the source of DNA
recovered from the back seat cover. On cross-examination, Van Winkle agreed
with Appellant’s attorney that no sample taken from the Mustang was
consistent with Rick’s or Suzanna’s DNA profile.
In evaluating whether the admission of the evidence harmed Appellant,
we consider the fact that Appellant’s DNA did not appear in any of the seized
evidence, nor were any of the samples recovered from the Mustang consistent
35
with Rick’s or Suzanna’s DNA profile. 9 In fact, the inadequacy of the DNA
evidence was actually pointed out by Appellant’s counsel during both opening
statements and closing arguments when his counsel told the jury that the State
would not be able to link Appellant to the murders through DNA evidence.
Appellant’s counsel specifically stated during opening statements that the
search of the car did not result in “evidence of any kind, of any type of blood
evidence or DNA evidence to tie [Appellant] to the deaths of Rick and Suzy
Wamsley.” Appellant’s counsel again emphasized the lack of DNA evidence to
the jury during closing arguments when he stated the following:
[W]hat the DNA tells you in this case isn’t much, and it doesn’t fill
the gaps in the evidence . . . It doesn’t tell you that [Appellant] had
anything to do with the physical evidence or what occurred with
Mr. and Mrs. Wamsley, and it doesn’t put any of their blood
standards or their samples out in the car, out of his car . . . .
Furthermore, the State’s emphasis on the blood and DNA evidence
recovered from the search of the Mustang was slight. During closing
arguments, the State mentioned that the swabs and cuttings from the Mustang
9
In his attempt to show harm, Appellant points out that Van Winkle
testified that she detected a mixed DNA profile on the outside of the glove
recovered from the Mustang, and that she could not exclude either Chelsea or
Appellant as being contributors to the mixture. We have not considered this in
our harm analysis simply because the glove was recovered in the initial search
that was conducted pursuant to Appellant’s consent. Therefore, we will not
factor it into our analysis.
36
were positive for blood, and stated “[t]hat’s an awful lot of areas in an
automobile for there to be positive traces of blood in a car.”
Moreover, the strength of the State’s case linking Appellant to the
murders was not based on the DNA and blood evidence derived from the car.
Rather, the State’s case hinged on the testimony of Susan Toledano, an
accomplice in the Wamsleys’ murders. Toledano testified that she, Chelsea,
and Appellant murdered Rick and Suzanna during the early morning hours of
December 11, 2003. In her testimony, she related how the plans to harm the
Wamsleys developed. Sometime during October 2003, Toledano, Chelsea, and
Appellant began their initial discussions of how they could injure the Rick and
Suzanna. Their ideas included tampering with the brakes in Rick’s car and
putting balloons filled with Drano into the gas tanks of their cars. At some
point during the development of their plans, Hilario Cardenas, a friend of
Chelsea and Appellant, provided them with a revolver. In the latter part of the
fall, Appellant contacted Ruth Brustrom, a friend of Chelsea’s family, and asked
her if he, Chelsea, and Toledano could practice shooting on her property in
Burleson.10 Each of the three took turns shooting the gun into a pond on
Brustrom’s property. Soon after, they came up with another plan to harm the
10
Toledano testified that they went to Brustrom’s property to practice
shooting and to determine who had the best shot.
37
Wamsleys. In November 2003, Toledano and Appellant attempted to kill the
Wamsleys by shooting the gas tank of the Jeep they were riding in, in hopes
that the car would blow up. Eventually, their plan to harm the Wamsleys was
effectuated when they shot and stabbed the Wamsleys during the early morning
hours on December 11. Toledano testified that immediately after the murders
Chelsea used Toledano’s cell phone to call her friend Jeremy.
Toledano’s entire testimony was corroborated by several other witnesses
who testified at trial. Brustrom, a longtime friend of Chelsea’s family, testified
that during the fall of 2003 Appellant had called her asking if he and Toledano
could visit her property in Burleson because Toledano wanted to learn how to
shoot a gun. Sometime after Halloween, but before the Wamsleys were
murdered, Appellant, Toledano, and Chelsea went to her property in Burleson.
Brustrom testified that after Appellant retrieved a gun from the trunk of the car,
he loaded it and they all went down to the pond and took turns firing the gun.
Sarah Wamsley testified that on November 9, 2003, she and her parents
were returning from Joshua, Texas, where they had gone to ride their horses.
While driving along I-35, she heard a boom and thought that a rock had struck
their Jeep. Police responded to Suzanna’s 911 call and discovered a hole in the
left rear panel of the Jeep. The police recovered a bullet from the Jeep.
38
Keith Cowand, a neighbor of the Wamsleys, testified that on the night of
December 11, 2003 he was awakened by something that sounded like
gunshots. He stated that he looked at his clock and it was 3:23 a.m. Jeremy
Lavender also testified that during the early morning hours of December 11 he
received a series of phone calls from Chelsea to his cell phone and land line.
Chelsea wanted him to be her alibi, but would not tell him what kind of trouble
she was in or why she needed an alibi when he asked. 11 The State submitted
into evidence Jeremy’s telephone records, which showed that on December 11
Jeremy received six phone calls from Chelsea between 3:42 a.m. and 4:02
a.m.
The jury also heard the testimony of Ron Van Fleet, a firearms and
toolmark examiner for the Fort Worth Police Department Crime Laboratory, who
testified that he compared a single bullet removed from Brustrom’s pond with
bullets recovered from the Wamsleys’ dining room, the headboard in their
master bedroom, the soffit area outside the master bedroom, Suzanna’s body,
11
Jeremy testified that Chelsea had told him to “tell the police that
[Toledano, Appellant, and herself] came to your house and all that. We wanted
you to go to Putt-Putt, but you couldn’t come, so we came over to your house
and we stayed for a little while and then we left and I talked to you on the
phone.”
39
and Rick’s Jeep.12 After comparing all of the bullets, Van Fleet testified that all
of the bullets were fired from the same weapon.
It is clear from the record that Appellant’s conviction for his parent’s
murders was based on the cumulative testimony of these witnesses and not on
evidence recovered from the search of his car. Therefore, in light of all the
other evidence presented at trial connecting Appellant to the murders, in
addition to the State’s lack of emphasis on the evidence and Appellant’s ability
to discredit it at trial, we hold that the trial court’s admission of the blood and
DNA evidence recovered from the search of his Mustang was harmless beyond
a reasonable doubt because it did not contribute to Appellant’s conviction or
punishment. See T EX. R. A PP. P. 44.2(b); see Wesbrook, 29 S.W.3d at 119.
Accordingly, we overrule Appellant’s eighth and eleventh points.
VIII. Motion to Suppress—Probable Cause
In Appellant’s ninth point he argues that he was subjected to an unlawful
search and seizure of his vehicle because the search warrant was not supported
by probable cause. In his tenth point, he asserts that the affidavit supporting
the search warrant for his vehicle failed to establish probable cause and thus
12
After Rick and Suzanna were murdered, Brustrom gave the police
consent to search and drain the pond. One bullet was recovered from the pond
during the search.
40
the search violated the Fourth Amendment because the affiant omitted material
information with reckless disregard for the truth.
A. Applicable Law
A search warrant may not be issued unless supported by a sworn
affidavit that sets forth sufficient facts to establish probable cause: (1) that a
specific offense has been committed, (2) that the specifically described property
or items that are to be searched for or seized constitute evidence of that
offense or evidence that a particular person committed that offense, and (3)
that the property or items constituting evidence to be searched for or seized are
located at or on the particular person, place, or thing to be searched. See T EX.
C ODE C RIM. P ROC. A NN. art. 18.01(c).
The cornerstone of the Fourth Amendment is that a magistrate shall not
issue a search warrant without first finding “probable cause” that a particular
item will be found in a particular location. Rodriguez, 232 S.W.3d at 60. When
reviewing a magistrate’s decision to issue a warrant, trial and appellate courts
apply a highly deferential standard in keeping with the constitutional preference
for a warrant. Id. Thus, when an appellate court reviews the sufficiency of an
affidavit for a search warrant, the reviewing court is limited to the four corners
of the affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App.),
41
cert. denied, 543 U.S. 944 (2004); Jones v. State, 833 S.W.2d 118, 123 (Tex.
Crim. App. 1992), cert. denied, 507 U.S. 921 (1993).
Furthermore, as reviewing courts, we are obliged to defer to the
magistrate and uphold his determination based upon all reasonable and
commonsense inferences and conclusions that the affidavit facts support.
Rodriguez, 232 S.W.3d at 64. We must defer to the magistrate’s finding of
probable cause if the affidavit demonstrates a substantial basis for his
conclusion. Id. It is not necessary to delve into all of the facts that were
omitted by the affiant, facts that could have been included in the affidavit, or
contrary inferences that could have been made by the magistrate. Id. Although
in a particular case it may not be easy to determine when an affidavit
demonstrates the existence of probable cause, the resolution of doubtful or
marginal cases in this area should be largely determined by the preference to
be accorded to warrants. Id. at 59. Thus, even in close cases we give great
deference to a magistrate’s determination of probable cause to encourage police
officers to use the warrant process rather than making a warrantless search and
later attempting to justify their actions by invoking some exception to the
warrant requirement. Id. at 59-60.
42
B. Affidavit
With these general principles in mind, we now turn to the affidavit in this
case. The affidavit stated that a 1998 Ford Mustang had been secured by the
Mansfield police department. The car was registered to murder victims Rick
and Suzanna Wamsley and was controlled by Appellant, the suspected party.
The affiant stated that he believed that the suspected party had possession of
and was concealing within the vehicle (a) shoes consistent with imprints found
at the crime scene, (b) clothing with blood stains consistent with those likely
worn by an individual responsible for the assaults, and (c) blood in sufficient
amounts to recover samples for DNA typing.
The affiant asserted that he had probable cause for the warrant because
of the following facts: on December 11, 2003, Mansfield police officers
responded to a 911 call where they discovered the bodies of Rick and Suzanna
who appeared to have been murdered. Both of the victims had trauma about
their bodies, and large quantities of blood was found at the crime scene. Crime
Scene Personnel also found blood stained shoe prints inside the Wamsleys’
home, and evidence was collected on the shoe prints. The affidavit also stated
that Appellant met with investigators at the police department and advised
them that he had possession of his parents’ 1998 Ford Mustang and that it was
parked outside. Through the investigation the police learned that the vehicle
43
was registered to Rick and Suzanna and had been missing from the crime
scene. The affiant stated that it was believed that the actor(s) responsible for
the Wamsleys’ murders may have driven the vehicle from the crime scene after
the murders, and that the car may now contain blood evidence.
C. Analysis
The primary issue is whether the search warrant was supported by
probable cause. Appellant first contends that the warrant failed to establish
probable cause that he had committed the offense and that evidence would be
found in the vehicle. We disagree. Although the affidavit did not set forth
facts showing that the search would yield evidence that Appellant committed
the offense, the affidavit clearly complied with Texas Code of Criminal
Procedure article 18.01(c). In addition to showing that the affiant had probable
cause to believe that a specific offense had been committed, article 18.01(c)
only requires that the affidavit set forth facts that the specifically “described
property or item to be searched or seized constitute either evidence of an
offense or evidence that a particular person committed that offense,” and that
the items constituting evidence are located in the particular thing to be
searched. See T EX. C ODE C RIM. P ROC. A NN. art. 18.01(c) (emphasis added).
Here, the affidavit set forth sufficient facts to show that the affiant had
probable cause to believe that two murders had been committed because Rick’s
44
and Suzanna’s bodies had been discovered at their home. The crime scene
contained large quantities of blood, and a bloody footprint was found inside the
residence. Thus, it may reasonably be inferred from these facts that the
murderer or murderers got blood on themselves, their clothing, or shoes at
some point while committing the murders. The affidavit also states that a 1998
Ford Mustang, registered to Rick and Suzanna, was missing from the murder
scene. It is a reasonable inference from this fact that the Wamsleys’ missing
car may have been used by the murderer or murderers as a method to flee the
scene, and, therefore, that it may contain blood evidence. Thus, the facts
contained in the affidavit, and all reasonable inferences derived from them,
establish probable cause that a crime had been committed, that the vehicle to
be searched constituted evidence of the crime, and that there was a fair
probability that items constituting evidence would be found in the car. See T EX.
C ODE C RIM. P ROC. A NN. art. 18.01(c); Rodriguez, 232 S.W.3d at 64. Therefore,
because the affidavit clearly set forth facts to satisfy each element of article
18.01(c), we hold that Appellant’s contention is without merit.
Appellant further contends that probable cause was not established
because the affiant purposefully omitted the fact that the police did not
discover any signs of blood during their initial search of the vehicle. In order for
an affiant’s omission to be a basis to suppress a warrant, the appellant must
45
establish by a preponderance of the evidence that the omission was made
knowingly, intentionally, or with reckless disregard for the truth in an attempt
to mislead the magistrate. Darby v. State, 145 S.W.3d 714, 722 (Tex.
App.—Fort Worth 2004, pet. ref’d). The omission of a material fact must
affect the finding of probable cause in support of the issuance of the warrant
in order for a warrant to be rendered invalid by such omission. See id.
Contrary to Appellant’s contention, we determine that the omitted fact
would not affect the finding of probable cause in support of the issuance of the
warrant. In the affidavit, the affiant specifically stated that it was his belief
that “blood in sufficient amounts to recover samples for DNA typing” would be
found in the car. Even if the affiant had included the omitted information that
an initial search had not resulted in the detection of blood, a magistrate could
reasonably conclude that merely because obvious signs of blood were not
detected, this did not necessarily mean that blood was not present. Indeed, the
magistrate could have reasonably concluded that the police wanted to test the
vehicle with chemicals, such as Luminol, that can reveal the presence of blood
not visible to the naked eye but sufficient to conduct DNA typing upon. Thus,
even if the information had been included, the magistrate could still have found
probable cause to issue the warrant. Therefore, we conclude that the affidavit
was not rendered invalid by the omission of this fact. See id.
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In any event, even if the trial court did err in denying Appellant’s motion
to suppress the evidence seized from the Mustang, any error was harmless.
We have already determined in our discussion of the previous point that the
evidence derived from the search of the vehicle did not contribute to
Appellant’s conviction or punishment.
Because we determine that the facts actually in the affidavit, combined
with all reasonable inferences that might flow from those facts, establish a “fair
probability” that evidence of the murders would be found in the vehicle, we
hold that the warrant was supported by probable cause. See Rodriguez, 232
S.W.3d at 60. Accordingly, we overrule Appellant’s ninth and tenth points.
IX. Conclusion
Having overruled all of Appellant’s points, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL B: LIVINGSTON, WALKER, and MCCOY, JJ.
LIVINGSTON, J. concurs without opinion.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 13, 2008
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