Jonathan Anthony Edwards v. the State of Texas

Affirmed and Memorandum Opinion filed June 29, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00432-CR
JONATHAN ANTHONY EDWARDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1656534
MEMORANDUM OPINION
A jury found appellant guilty of aggravated sexual assault, and the trial court
assessed an agreed punishment of thirty-five years’ confinement. In a single issue,
appellant contends that the trial court erred by denying his motion to suppress
under Franks v. Delaware, 438 U.S. 154 (1978), because of material omissions
from a search warrant affidavit. We affirm.
I. Legal Principles
The issuance of a search warrant depends on the existence of probable cause.
Diaz v. State, 632 S.W.3d 889, 892 (Tex. Crim. App. 2021). Probable cause exists
if there is a fair probability that evidence of a crime will be found at a specified
location. Id. A “fair probability” is less than a preponderance of the evidence; it
need not persuade a reasonable person “more likely than not.” See Rodriguez v.
State, 232 S.W.3d 55, 60 & n.21 (Tex. Crim. App. 2007). The test is whether a
reasonable reading of an affidavit supporting an application for a search warrant
provides a substantial basis for the magistrate’s conclusion that probable cause
exists. See Diaz, 632 S.W.3d at 892. This is a flexible and nondemanding
standard. Rodriguez, 232 S.W.3d at 60.
A defendant may challenge the truthfulness of factual statements made in a
search warrant affidavit. Diaz, 632 S.W.3d at 892 (citing Franks, 438 U.S. at 171–
72). The defendant must show by a preponderance of the evidence that a material
misstatement was made intentionally, knowingly, or with reckless disregard for the
truth. Id. This court and the Court of Criminal Appeals have applied these
principles to omissions from search warrant affidavits. See Islas v. State, 562
S.W.3d 191, 197 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d); see also
Diaz, 632 S.W.3d at 892 (“We have assumed that Franks applies to material
omissions, but we have not decided the issue.”).
If the defendant carries their burden to show material omissions made at
least with reckless disregard for the truth, then the true statement is added to the
affidavit, and a reviewing court must determine whether probable cause for the
warrant still exists. See Islas, 562 S.W.3d at 197. In making this determination,
we review whether probable cause exists as the magistrate would, looking at the
totality of the circumstances. See id. at 198; see also Diaz, 632 S.W.3d at 892. We
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interpret the affidavit in a “commonsensical and realistic manner, drawing
reasonable inferences from the information.” Diaz, 632 S.W.3d at 892 (quoting
State v. Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015)). The focus is on the
combined logical force of the facts in the affidavit. Id.II. Background
The State applied for and was granted a warrant to search and seize
appellant’s saliva via a buccal swab. Appellant filed a written motion to suppress
evidence obtained from this search and seizure, and the court held an evidentiary
hearing. Four paragraphs of the search warrant affidavit are reproduced with
minor redactions in Appendix A to this memorandum opinion. The first two
paragraphs are based on information that the affiant, a Houston Police Department
detective, learned from other officers’ reports. The third paragraph describes a
follow-up investigation in which the detective met with the complainant. The
fourth paragraph is based on information from a sexual assault nurse examiner’s
(SANE) report.
To summarize the affidavit, the detective testified that the complainant and
appellant were in a non-sexual dating relationship when appellant became angry
with the complainant on the evening of November 27, 2019. Appellant struck the
complainant in the head with a pistol and slept with her that night. On the
following morning, appellant again became angry, slapped her, forced her legs
apart, and put his penis into her vagina while the pistol was nearby. He did this
without her consent while she was in fear of injury or death. When appellant left
the apartment, the complainant called police. Officers arrived and found appellant
driving his car towards the exit of the apartment complex. They found a loaded
pistol under his leg. The complainant went to a hospital for a sexual assault
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examination. A sexual assault kit was submitted to the Houston Forensic Science
Center for DNA analysis.
According to the affidavit, the complainant told the responding officers at
the scene that appellant struck her in the head with the pistol so hard that her ears
began to ring. She told the detective during the follow-up interview that appellant
struck her with the pistol so hard that she blacked out.
At the hearing, the trial court also admitted as exhibits several of the
detective’s police reports. The reports contain more detailed reproductions of the
complainant’s statements to the SANE and to the detective during the follow-up
interview. A report indicates that the complainant told the SANE that when
appellant hit her with the gun, she fell to the ground in pain.
The court admitted as an exhibit a report from the Department of Public
Safety, which the detective had searched before submitting his search warrant
affidavit. The report provides that the complainant had a record of nine arrests
with three “convictions/adjudications” for “driving w/lic inv w/prev conv/susp/w/o
fin res,” “interfere w/public duties,” and “theft prop>=$50 < $500.”
The detective testified at the hearing that he was not aware that one of the
officers who responded to the crime scene said, according to body-worn camera
footage, that the complainant’s “story doesn’t add up.” The detective testified that
he did not see any indication from the other officers’ reports that the complainant
reported to them that she had passed out or blacked out.
The trial court overruled the motion to suppress, and the DNA evidence was
admitted before the jury.
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III. Arguments and Preservation of Error
On appeal, appellant generally complains about the detective omitting from
the search warrant affidavit alleged “inconsistencies” from the complainant’s
statements, and appellant contends that the detective “embellished” information
provided to him from the complainant. Appellant appears to complain about
several omissions from the affidavit that he never complained about to the trial
court, either in his written motion or at the hearing. 1 It is difficult to determine
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from his brief which particular omissions he contends should have been included
in the affidavit. Nor does appellant explain in his brief how probable cause is
lacking with any missing information added to the affidavit. 2 1F
As a prerequisite to presenting a complaint for appellate review, the record
must show that the complaint was made to the trial court by a timely request,
objection, or motion that stated the grounds for the ruling sought from the trial
court with sufficient specificity to make the trial court aware of the complaint. See
Tex. R. App. P. 33.1. A Franks complaint must be preserved at trial, and the
defendant must identify the false portions of the affidavit. See Harris v. State, 227
S.W.3d 83, 85–86 (Tex. Crim. App. 2007). A complaint on appeal must comport
with the specific complaint that the defendant timely lodged in the trial court.
Bleimeyer v. State, 616 S.W.3d 234, 250 (Tex. App.—Houston [14th Dist.] 2021,
no pet.); see Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
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For example, in his brief, appellant refers to the responding officers testifying that they
did not observe visible injury to the complainant. Appellant refers to the complainant’s
statement to the detective that the complainant did not see the gun until appellant hit her with it.
Appellant refers to the complainant’s statement that she was dizzy and threw up in a toilet.
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The State contends that appellant waived any error due to inadequate briefing. See
Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (overruling inadequately briefed
issues). Assuming without deciding that appellant has not waived error due to inadequate
briefing, we will construe his brief liberally and address this issue to the extent possible. See
Tex. R. App. 38.9 (briefing rules to be construed liberally).
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From reviewing the arguments presented in appellant’s motion, at the
hearing, and in his brief on appeal, appellant has preserved error regarding the
following alleged material omissions from the detective’s search warrant affidavit:
(1) the complainant did not tell the responding officers or the SANE on November
28 that she had passed out; (2) the complainant did not tell the SANE that appellant
had the gun near him during the sexual assault; (3) one of the responding officers
opined that the complainant’s story didn’t “add up”; and (4) the complainant’s
criminal history.
IV. Analysis
Assuming without deciding that these alleged omissions were material and
that the detective omitted them from the search warrant affidavit at least with
reckless disregard, we conclude that probable cause for the search and seizure of
appellant’s saliva would still exist even if the omissions were added to the
affidavit.
The search warrant affidavit recited the complainant’s detailed statements in
support of each element of aggravated sexual assault. See Tex. Penal Code
§ 22.021(a)(1)(A)(i). In particular, the complainant repeatedly stated to different
officers and the SANE that appellant threatened her with a pistol and forced his
penis inside her vagina. None of the omissions would have made any difference to
the probable cause determination. See Gonzales v. State, 481 S.W.3d 300, 312
(Tex. App.—San Antonio 2015, no pet.) (reasoning that adding omitted
information to affidavit—that witness’s statement was hearsay from another
officer—“would make no difference to the probable cause determination”); see
also Renteria v. State, 206 S.W.3d 689, 703–04 (Tex. Crim. App. 2006) (holding
that the magistrate would have had probable cause to issue a warrant even with the
inclusion of omitted information, e.g., that officer had already searched the vehicle
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that was the subject of the warrant and found no evidence linking the vehicle with
the crime).
Even if the complainant failed to tell the responding officers or the SANE
every factual detail of the assault that she recited for the detective several days
later—that is, whether she passed out and whether the gun was nearby—such
alleged “inconsistencies” would not undermine the probative value of the
information provided in the affidavit for the magistrate’s determination on the
existence of probable cause. Cf. Jarnagin v. State, 392 S.W.3d 223, 228 (Tex.
App.—Amarillo 2012, no pet.) (affidavit was sufficient to support finding of
probable cause despite a discrepancy between the deputy’s affidavit and the
complainant’s statements about date of a sexual assault). The complainant’s
statements were not, in fact, “inconsistent” as appellant characterizes them. For
example, appellant directs this court to no evidence that the complainant told the
responding officers or SANE that she did not pass out, only that the officers and
SANE failed to include in their reports a statement by the complainant that she did
pass out.
Adding the complainant’s criminal record to the affidavit—in particular, for
no offenses tending to show bias against appellant or undermining her credibility
regarding reports to police—would not prevent the magistrate from finding her
statements reliable and that there was a fair probability that evidence of a crime
would be found from collecting appellant’s saliva. See Heitman v. State, 789
S.W.2d 607, 611–12 (Tex. App.—Dallas 1990, pet. denied) (reasoning that even if
information omitted from search warrant about an informant’s “extensive criminal
record” and his “deal . . . to supply information about appellant in exchange for
dismissal of four pending charges” were added to the search warrant, the affidavit
would still be facially sufficient to give the magistrate probable cause to issue the
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warrant); see also Janecka v. State, 937 S.W.2d 456, 464 (Tex. Crim. App. 1996)
(false statement that unnamed informant had no criminal history—despite
conviction for driving while intoxicated and participation in the crime that was the
subject of the search warrant—was not material under Franks).
Appellant’s sole issue is overruled.
V. Conclusion
The trial court did not err by denying appellant’s motion to suppress. The
trial court’s judgment is affirmed.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
(Hassan, J., concurring without opinion).
Do Not Publish — Tex. R. App. P. 47.2(b)
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Appendix A: Partial Search Warrant Affidavit
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