Affirmed and Memorandum Opinion filed August 26, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00445-CR
                              NO. 14-13-00446-CR

                 BRANDON KYLE ALEXANDER, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 182nd District Court
                            Harris County, Texas
                   Trial Court Cause Nos. 1351159, 1351160

                 MEMORANDUM                     OPINION


      Appellant Brandon Alexander appeals his convictions for possession of
marijuana and felon in possession of a firearm. In a single issue, appellant claims
the trial court erred in denying his motion to suppress because the affidavit
supporting the arrest warrant contained false statements. Concluding that appellant
failed to make the requisite “substantial preliminary showing” that a false
statement was intentionally, knowingly, or recklessly included in the warrant
affidavit, we affirm.

                        Facts and Procedural Background

      Based on two “strong tentative” photo-array identifications and a link to a
license plate number, Officer Gary Young of the Houston Police Department
(HPD) obtained an arrest warrant for appellant in connection with a robbery that
occurred in Harris County, Texas, on May 14, 2012. Officer Young and other HPD
officers entered appellant’s home in Houston, Harris County, Texas, while
executing the arrest warrant on June 14, 2012. Appellant and his wife were taken
into custody after the HPD officers discovered the couple trying to dispose of a
marijuana stash. The police later found two handguns in the couple’s house.

      Appellant was indicted for (1) intentionally and knowingly possessing
marijuana in a useable quantity of more than four ounces and less than five pounds,
and (2) intentionally and knowingly possessing a firearm after having been
convicted of the felony offense of felon in possession of a weapon. The indictment
for marijuana possession alleged two prior convictions, and the indictment for
felon in possession of a weapon alleged one prior conviction.

      Appellant filed a motion to quash the arrest warrant and a motion to suppress
the evidence acquired by the police while executing the arrest warrant
(collectively, the “motion to suppress”). The trial court held a hearing on
appellant’s motion to suppress and denied the motion. Appellant then pleaded
guilty to both offenses and pleaded “true” to the prior convictions. He was
sentenced to five years in prison for each offense, with the sentences to run
concurrently. Appellant timely appealed.




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                                      Discussion

       Citing Franks v. Delaware, 438 U.S. 154 (1978), appellant contends the
arrest-warrant affidavit contains a false statement. Specifically, appellant alleges
that the 2009 mug-shot photo used by the police that resulted in two “strong
tentative” identifications did not accurately represent appellant’s appearance at the
time of the alleged robbery. A trial court’s ruling on a motion to suppress is
reviewed for abuse of discretion. Rios v. State, 376 S.W.3d 238, 241 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). We will uphold the trial court’s ruling if it is
reasonably supported by the record and is correct under any applicable legal
theory. Id. The trial court is the sole trier of fact and judge of witness credibility
and the weight given to witness testimony. Id. We give the trial court almost
complete deference in determining historical facts, and we review de novo the trial
court’s application of the law to those facts. Id. When, as here, the trial court does
not file findings of fact, we review the evidence in the light most favorable to the
trial court’s ruling. Id.

       To succeed in a Franks challenge to a warrant, a defendant must first make a
“substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit . . . .” 438 U.S. at 155–56. To make the requisite preliminary
showing, the defendant must:

       (1)    allege [a] deliberate falsehood or reckless disregard for the truth
              by the affiant, specifically pointing out the portion of the
              affidavit claimed to be false;
       (2)    accompany these allegations with an offer of proof stating the
              supporting reasons; and
       (3)    show that when the portion of the affidavit alleged to be false is
              excised from the affidavit, the remaining content is insufficient
              to support issuance of the warrant.

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Ramsey v. State, 579 S.W.2d 920, 922–23 (Tex. Crim. App. [Panel Op.] 1979); see
also Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007).

        The record demonstrates that appellant did not satisfy the “substantial
preliminary showing” requirement that would entitle appellant to a hearing, let
alone the granting of his motion to suppress. First, the record does not support a
finding that the trial court was even aware at the original hearing on the motion to
suppress that an alleged Franks violation was at issue. The only arguable reference
to Franks in the motion to suppress was the following statement:

        The arrest warrant was authorized for the arrest of Brandon Alexander
        based on false and misleading information that did not substantiate the
        arrest of Brandon Alexander without the false and misleading
        information.
The motion does not mention the specific portion of the warrant affidavit that was
allegedly false. The motion does not even allege that the warrant affidavit
contained false statements. A memorandum filed by defense counsel in support of
the motion to suppress does not specifically allege that the warrant affidavit was
false; rather, it merely alleges that “[h]ad a more recent picture of [appellant] been
shown, the tentative ids would most definitely have been no ids.”

        An affidavit provided by appellant supporting the motion to suppress did not
specifically aver that the warrant affidavit contained a false statement, nor did it
prove that the warrant contained a false statement. Appellant stated, in pertinent
part:

        The photograph presented to the witnesses from January 23, 2009
        looked nothing like the way I looked on January 23, 2012.
        ...
        I feel the officers misled the Magistrate to get the Arrest Warrant, and
        they misled the witnesses to get a strong tentative identification by
        presenting pictures of me that looked nothing like the way I looked on

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      May 14, 2012.
Appellant’s averments indicate that he was not complaining about false statements
in a warrant affidavit, but rather about the allegedly misleading effect of using an
out-of-date photograph in a photo array. While appellant may have felt that the
officers misled the magistrate, appellant does not provide any objective support for
his feelings.

      Additionally, the trial judge’s ruling on the motion indicates that she was
unaware that a Franks violation was being asserted or at issue because the ruling
addresses only whether probable cause existed:

      The Court's understanding from reading the affidavits is that there
      were two tentative identifications made of the defendant from photo
      spreads as well as a link through a vehicle. Though not registered to
      him, there certainly was a link to him. So, I think that there was
      enough probable cause to have the warrant issued. And that though he
      was not ultimately charged with that, I think that the warrant was
      valid. I think that the entry into the home was valid. And, so, I'm
      going to deny your Motion to Suppress the arrest warrant or the arrest
      and any fruits of that arrest.
Appellant’s motion to suppress and its accompanying documents fall far short of
what is required under the first two prongs of the Ramsey test. Cf. Harris, 227
S.W.3d at 85.

      Second, defense counsel did not present any evidence at the hearing to
establish a prima facie violation under Franks. The main thrust of defense
counsel’s argument during the hearing concerned whether the police had
sufficiently linked appellant to the alleged robbery, not whether the affidavit
supporting the arrest warrant contained false statements. Cf. id. at 85–86. The only
evidence presented by defense counsel was appellant’s conclusory affidavit, which
the trial judge could have disregarded as lacking in both credibility and weight.


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      Accordingly, viewing the available evidence in the light most favorable to
the trial court’s ruling, we conclude that appellant did not make the requisite
preliminary showing that a false statement was knowingly, intentionally, or
recklessly included in the officer’s affidavit. The trial court did not abuse its
discretion when it denied appellant’s motion to suppress.

                                   Conclusion

      Appellant’s sole issue on appeal is overruled, and the judgment of the trial
court is affirmed.


                                      /s/       Marc W. Brown
                                                Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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