Travis Chris Gray v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00028-CR
TRAVIS CHRIS GRAY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Travis Chris Gray appeals his conviction for possession of four
or more but less than two hundred grams of cocaine. See Tex. Health & Safety
Code Ann. §§ 481.102(3)(d), 481.115(a), (d) (West 2010). He contends in one
point that the evidence of cocaine found in plain view during a search pursuant to
a warrant should have been suppressed because the supporting affidavit failed to
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See Tex. R. App. P. 47.4.
provide facts establishing probable cause that evidence was located at the place
listed in the affidavit. See Tex. Code Crim. Proc. Ann. art. 18.01 (West Supp.
2010). We affirm.
Background Facts
Police officers arrested appellant after they seized cocaine found in plain
view while searching his house for evidence that he had kidnapped, assaulted,
and battered his ex-girlfriend. Because appellant challenges the sufficiency of
the search warrant affidavit to show probable cause that evidence of these
crimes would be found at his house, we provide the facts as stated in the
affidavit.
Appellant‘s ex-girlfriend called the police with her cell phone from a
McDonald‘s restaurant, where appellant had taken her. By the time the police
arrived, appellant was gone. The police took photographs showing that the
complainant had two black eyes and bruises on her head, face, and body. The
police completed a family violence packet and gave the dispute a report number,
which was subsequently assigned to Detective M.D. Green.
Three days later, appellant‘s ex-girlfriend gave Detective Green a recorded
statement. Detective Green observed swelling and bruising on her arms and
neck; the complainant also told Detective Green that she had sustained injuries
to her arms, which bled.
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In the affidavit, Detective Green states that appellant had pulled the
complainant out of a friend‘s car in which she had been riding, had handcuffed
her arms behind her back, and had forced her into his car. In his car, he placed
the child safety lock on so that she could not escape. Appellant drove to a
friend's house, grabbed a hammer from the garage, and struck her with the
wooden handle. After driving to a deserted area, he also struck her with his fist,
and he kicked her several times in the side.
Appellant then drove his ex-girlfriend to his house. Before taking her
inside, he threw the hammer handle in the common area of his duplex‘s yard.
Appellant kept her in his house overnight. The affidavit states ―[t]hat the following
day [appellant] uncuffed [her] and drove her to the McDonald[‘]s to get her
something to eat,‖ which is where she called the police. The police did not find
appellant at the McDonald‘s.
The affidavit also states that Detective Green, accompanied by another
detective, went to appellant‘s address, and they found the wooden hammer
handle in plain view in the yard.
The affidavit asked for a warrant to search appellant‘s residence for the
following items: (1) handcuffs, (2) blood or other biological evidence, (3) hair,
fibers, fingerprints, or other trace evidence, and (4) any other evidence of an
aggravated kidnapping offense. After reviewing the foregoing allegations in the
affidavit, the magistrate issued a warrant to search appellant‘s residence for the
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items listed in the affidavit. Officers executed the warrant, but instead of finding
evidence associated with the alleged kidnapping, except for a handcuffs key,
they seized cocaine that was in plain view.
At trial, appellant objected to the validity of the search, challenging the
sufficiency of the affidavit to show probable cause that evidence of the alleged
aggravated kidnapping was at his residence. The court reviewed the affidavit,
overruled appellant‘s objection, and admitted the evidence about the cocaine.
Standard of Review
The Fourth Amendment to the United States Constitution requires that ―no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.‖ U.S. Const. amend. IV. Under article 18.01 of the code of criminal
procedure, a search warrant may be obtained from a magistrate only after
submission of an affidavit setting forth substantial facts establishing probable
cause. Tex. Code Crim. Proc. Ann. art. 18.01(b).
Probable cause exists if, under the totality of the circumstances set forth in
the affidavit before the magistrate, there is a ―fair probability‖ that contraband or
evidence of a crime will be found in a particular place at the time the warrant is
issued. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); Flores
v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). The magistrate may
interpret the affidavit in a nontechnical, common-sense manner and may draw
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reasonable inferences from the facts and circumstances contained within its four
corners. Flores, 319 S.W.3d at 702; Cassias v. State, 719 S.W.2d 585, 587–88
(Tex. Crim. App. 1986) (op. on rehg). In United States v. Ventresca, the
Supreme Court described the flexibility that should be accorded to magistrates:
These decisions reflect the recognition that the Fourth
Amendment‘s commands, like all constitutional requirements, are
practical and not abstract. If the teachings of the Court‘s cases are
to be followed and the constitutional policy served, affidavits for
search warrants, such as the one involved here, must be tested and
interpreted by magistrates and courts in a commonsense and
realistic fashion. They are normally drafted by nonlawyers in the
midst and haste of a criminal investigation. Technical requirements
of elaborate specificity once exacted under common law pleadings
have no proper place in this area. A grudging or negative attitude by
reviewing courts toward warrants will tend to discourage police
officers from submitting their evidence to a judicial officer before
acting.
This is not to say that probable cause can be made out by
affidavits which are purely conclusory, stating only the affiant‘s or an
informer‘s belief that probable cause exists without detailing any of
the ‗underlying circumstances‘ upon which that belief is based.
Recital of some of the underlying circumstances in the affidavit is
essential if the magistrate is to perform his detached function and
not serve merely as a rubber stamp for the police. However, where
these circumstances are detailed, where reason for crediting the
source of the information is given, and when a magistrate has found
probable cause, the courts should not invalidate the warrant by
interpreting the affidavit in a hypertechnical, rather than a
commonsense, manner. 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.
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380 U.S. 102, 108–09, 85 S. Ct. 741, 746 (1965) (citation omitted). Reviewing
courts give great deference to a magistrate‘s determination of probable cause.
Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Rodriguez v. State, 232 S.W.3d 55,
59–60 (Tex. Crim. App. 2007). ―[T]he duty of the reviewing court is simply to
ensure that the magistrate had a substantial basis for concluding that probable
cause existed.‖ Gates, 462 U.S. at 238–39, 103 S. Ct. at 2332 (internal
quotations omitted).
Analysis
In reviewing the sufficiency of the affidavit‘s showing of probable cause, we
consider whether the affidavit established probable cause for any one of the four
items listed in it. See Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App.
1996) (explaining the rule of severability by which invalid portions of a warrant
are severable from valid portions) cert. denied, 520 U.S. 1198 (1997).
Handcuffs were the first items listed in the affidavit. The affidavit stated
that appellant handcuffed his ex-girlfriend in the car and kept her in the handcuffs
throughout the night at his house. He uncuffed her the next day and took her to
a McDonald‘s. Appellant contends that the affidavit failed to establish probable
cause that the handcuffs would be found at his house because it did not indicate
where the handcuffs were left upon removal; appellant argues that they could
have been taken off and left in his car rather than his house. Although the
affidavit does not expressly state that appellant and the complainant were still at
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his house when he removed the handcuffs, it is just as reasonable to infer that
they were in the house as in the car. See Rodriguez, 232 S.W.3d at 64 (―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.‖). We conclude that the affidavit provides
sufficient evidence to show probable cause that handcuffs would be found at
appellant‘s home.
Even had there not been sufficient evidence to show probable cause
regarding the handcuffs, the affidavit contains sufficient facts to warrant a
reasonable inference that the second and third items would be found at the
house, given the forceful nature of the kidnapping and detainment of appellant‘s
ex-girlfriend as outlined in the affidavit. According to the affidavit, appellant
physically battered her, causing her to bleed on her arms and sustain various
other injuries on her body. The affidavit also states that appellant held her
captive in handcuffs in his house throughout the night. Based on the foregoing
facts, we hold that it is a reasonable inference from the facts in the affidavit that
blood, hair, fibers, fingerprints, or other evidence of the complainant‘s injuries
probably could be found at appellant‘s house. See State v. Duncan, 72 S.W.3d
803, 807–08 (Tex. App.—Fort Worth 2002, pet. dism‘d) (holding it could be
reasonably inferred that videotape and pictures of sexual activity would be found
at appellant‘s house given intimate nature of sexual activity and fact that he
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recorded it with hidden cameras); see also Wamsley v. State, No. 02-06-00089-
CR, 2008 WL 706610, at *18 (Tex. App.—Fort Worth Mar. 13, 2008, pet. ref‘d)
(mem. op., not designated for publication) (holding magistrate could reasonably
infer from affidavit that blood would be found in car used by murderers because
there was blood at crime scene and it was likely that murderers got blood on
themselves).
Giving deference to the magistrate‘s decision to issue the search warrant,
and applying the applicable law to the facts in this case, we conclude that the
affidavit provided the magistrate with probable cause necessary for the issuance
of a search warrant of appellant‘s house. See Gates, 462 U.S. at 236, 103 S. Ct.
at 2331; Rodriguez, 232 S.W.3d at 59–60; see also Duncan, 72 S.W.3d at 806.
Accordingly, we overrule appellant‘s sole point.
Conclusion
Having overruled appellant‘s sole point, we affirm the trial court‘s
judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 27, 2011
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