                                                                       ACCEPTED
                                                                  13-14-00588-CR
                                                    THIRTEENTH COURT OF APPEALS
                                                          CORPUS CHRISTI, TEXAS
                                                             1/2/2015 11:31:04 AM
                                                                 DORIAN RAMIREZ
                                                                           CLERK

          NO. 13-14-00588-CR

     IN THE COURT OF APPEALS        FILED IN
                            13th COURT OF APPEALS
  FOR THE THIRTEENTH DISTRICT
                         CORPUSOFCHRISTI/EDINBURG, TEXAS
              TEXAS          1/5/2015 8:00:00 AM
         AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                            Clerk

        THE STATE OF TEXAS,
                      Appellant,
                v.

CHRISTOPHER ALEXSON PAPPILLION,
                   Appellee.


  On Appeal from the 377th District Court
        Victoria County, Texas
      Cause Number 13-2-27,162-D


       BRIEF FOR THE STATE

         STEPHEN B. TYLER
        Criminal District Attorney
         Victoria County, Texas

       BRENDAN WYATT GUY
    Assistant Criminal District Attorney
          Victoria County, Texas
        205 N. Bridge St. Ste. 301,
       Victoria, Texas 77901-6576
              (361) 575-0468
           (361) 570-1041 (fax)
          State Bar No. 24034895
                (On Appeal)

      Attorneys for the State of Texas

 ORAL ARGUMENT NOT REQUESTED
                              IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as
follows:

APPELLANT                                         The State of Texas

APPELLEE                                          Christopher Alexson Pappillion

TRIAL JUDGE                                       The Honorable Robert Cheshire
                                                  377th District Court
                                                  Victoria, Texas

TRIAL PROSECUTOR                                  Edward Paul Wilkinson
                                                  State Bar No. 24052674
                                                  Assistant Criminal District Attorney
                                                  205 N. Bridge St. Ste 301
                                                  Victoria, Texas 77901-6576

TRIAL DEFENSE ATTORNEY                            Brent Andrew Dornburg
                                                  State Bar No. 24003930
                                                  120 N. Main Street
                                                  Victoria, Texas 77901

APPELLATE STATE’S                                 Brendan Wyatt Guy
ATTORNEY                                          State Bar No. 24034895
                                                  Assistant Criminal District Attorney
                                                  205 N. Bridge St. Ste 301
                                                  Victoria, Texas 77901-6576

APPELLATE DEFENSE                                 Brent Andrew Dornburg
ATTORNEY                                          State Bar No. 24003930
                                                  120 N. Main Street
                                                  Victoria, Texas 77901




Brief of Appellant                           ii
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             TABLE OF CONTENTS

                                                                                                PAGE (S)

TABLE OF CONTENTS ........................................................................ iii

INDEX OF AUTHORITIES ................................................................ iv-v

STATEMENT OF THE CASE............................................................. 1-2

ISSUES PRESENTED.............................................................................. 2

STATEMENT OF THE FACTS .......................................................... 2-7

SUMMARY OF ARGUMENT ........................................................... 7-10

ARGUMENT ...................................................................................... 10-27

        I. The trial court erred in overruling the magistrate’s
           finding that the search warrant affidavit established
           probable cause ....................................................................... 10-17

    II. The trial court erred in finding a “reckless disregard
        for the truth”in the search warrant affidavit....................... 18-25

   III. Even if there was a Franks violation, the trial court
        still erred by suppressing the evidence in this case ............. 25-27

PRAYER .................................................................................................. 28

SIGNATURE ........................................................................................... 28

CERTIFICATE OF COMPLIANCE ................................................... 29

CERTIFICATE OF SERVICE ............................................................. 30




Brief of Appellant                                   iii
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             INDEX OF AUTHORITIES


                                      United States Supreme Court Cases

Franks v. Delaware, 98 S. Ct. 2674 (1978)......... 2, 9-10, 18-19, 22, 24-26

Illinois v. Gates, 103 S. Ct. 2317 (1983) ................................................. 22

Texas v. Brown, 460 U.S. 730 (1983) ...................................................... 12


                                                  Texas Cases

Harris v. State, 227 S.W. 3d 83 (Tex. Crim. App. 2007) ...................... 26

Flores v. State, 319 S.W. 3d 697 (Tex. Crim. App. 2010) ......... 11-14, 17

Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) .................... 20

Rodriguez v. State, 232 S.W. 3d 55 (Tex. Crim. App. 2007) ......... 11, 16,
........................................................................................................ 17, 23-24

State v. McLain, 337 S.W. 3d 268 (Tex. Crim. App. 2011) ............ 10-12,
............................................................................................................. 17, 22



                                                 Texas Statutes

TEX. CODE CRIM. PROC. ANN. art. 18.01 (West 2014) ................... 16

TEX. CODE CRIM. PROC. art. 38.141 (West 2005) ........................... 24

TEX. HEALTH & SAFETY CODE ANN. § 481.002 (West 2014) ...... 25

TEX. HEALTH & SAFETY CODE § 481.112 (West 2010) ................. 25



Brief of Appellant                                       iv
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             Texas Rules

TEX. R. APP. 9.4..................................................................................... 29

TEX. R. APP. 38.1..................................................................................... ii




Brief of Appellant                                  v
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                NO. 13-14-00588-CR

                                  IN THE COURT OF APPEALS
                             FOR THE THIRTEEN DISTRICT OF TEXAS
                                      AT CORPUS CHRISTI

THE STATE OF TEXAS…………………………………………..Appelant

v.

CHRISTOPHER ALEXSON PAPPILLION,.……………………...Appellee

                                                    * * * * *

                                     STATE’S BRIEF ON THE MERITS

                                                    * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellant in the above numbered

and entitled cause, and files this the Appellant’s brief showing:

                                             STATEMENT OF THE CASE

            On April 3, 2014, Appellee was charged by indictment with one count

of Manufacture or Delivery of Substance in Penalty Group 1 in an amount of

four grams or more but less than 200 grams, one count of Manufacture or

Delivery of a Substance in Penalty Group 1-A in an amount of 80 abuse

units or more but less than 4,000 abuse units, one count of Manufacture or

Delivery of a Substance in Penalty Group 2 in an amount of 400 grams or
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                        1
more, one count of Possession of Marihuana in an amount of five pounds or

less but more than four ounces, and one count of Manufacture or Delivery of

a Substance in Penalty Group 3 or 4 in an amount of 28 grams or more but

less than 200 grams. [CR-I-5-6]. On August 21, 2014 Appellee filed a

motion to suppress. [CR-I-20-24]. A hearing was held on that motion on

September 4, 2014. [RR-I-1]. On October 7, 2014, the Honorable Robert

Cheshire presiding, granted Appellee’s motion to suppress with a written

order that included findings of fact and conclusions of law. [CR-I-27]. The

State timely filed its notice of appeal on October 8, 2014. [CR-I-28-31].

                                                ISSUES PRESENTED

      1) Did the trial court err in overruling the magistrate’s conclusion that

            the affidavit in this case provided probable cause to search Appellee’s

            residence?

      2) Did the trial court err in finding there was a reckless disregard for

            truth in the search warrant affidavit?

      3) If there was a Franks violation was suppression of the evidence the

            appropriate remedy in this case?

                                             STATEMENT OF THE FACTS

            On January 16, 2014, officers of the Victoria Police Department

executed a warrant at Appellee’s residence. [CR-I-20]. That warrant was
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                       2
issued by the Honorable Jack W. Marr, District Judge of the 24th Judicial

District Court on January 14, 2014. [DE-1]. Judge Marr reviewed a sworn

affidavit submitted by Detective Dennis Paine of the Victoria Police

Department on January 14, 2014 prior to issuing the search warrant. [DE-2].

            Clause 7(a) of the affidavit stated that the Confidential Informant

(hereafter CI) who was providing the information to the investigating

officers has proven to be reliable and credible and had been verified by

officer observation and monitored recordings. [DE-2-pg.3].

            Clause 7(c) of the affidavit confirmed that the CI was searched for

contraband by the investigating officers prior to conducting this operation

without any contraband being located on his person. Id. That clause also

stated that the investigating officers outfitted the CI with a body wire to

provide audio surveillance of the purchase. Id.

            Clause 7(d) of the affidavit then described how the CI was given $300

of United States currency by the Victoria Police Department to purchase

Cocaine with and how the CI went to 201 Wearden Drive, where the

purchase of Cocaine took place. Id. This clause further stated that the CI

was monitored physically and through the body wire throughout the duration

of the purchase. Id. This clause then described how the CI’s vehicle was

parked in the driveway of the 201 Wearden Drive location for several
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             3
minutes and how after the purchase was complete the CI left the location.

Id. This recorded audio as well as the purchased contraband, constitute pre-

warrant evidence other than a statement of the person to whom the offer was

made.

            Clause 7(g) of the affidavit attested that the 201 Wearden Drive

residence belonged to the Appellee and noted that the Victoria Police

Department had intelligence reports from multiple sources that Appellee was

a drug dealer. [DE-2-pg. 4].

            Clause 7(h) of the affidavit declared that an anonymous source had

reported that Appellee had a safe full of illegal Steroids and other

contraband. Id.

            Cluase 7(i) of the affidavit established that the residence at 201

Wearden Drive was owned by John and Lita Pappillion, the Appellee’s

parents. Id.

            At no place in the affidavit is there any assertion that it was the CI

ever went inside the residence at 201 Wearden Drive or that the CI himself

purchased narcotics from someone inside the residence; nor is there

representations of manner and means of delivery (i.e. suggesting actual

rather than constructive transfer or transfer instead of possession with intent

to deliver). [DE-2].
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             4
            Appellee’s motion to suppress alleged that the search warrant in this

case was defective because the affidavit did not reflect sufficient probable

cause to justify the issuance of a search warrant. [CR-I-21-22]. Appellee

also alleged that the issuing magistrate had been misled by information in

the affidavit that the submitting officer knew was false or would have known

to be false if not for a reckless disregard for the truth. [CR-I-22].

            At the suppression hearing, Appellee offered three documentary items

of evidence: the search warrant at issue in the case (Defense Exhibit 1), the

affidavit for that search warrant (Defense Exhibit 2), and the officer’s

returned inventory of the items obtained pursuant to the search warrant

(Defense Exhibit 3). [RR-I-6].

            Appellee then called Detective Dennis Paine of the Victoria Police

Department to testify. [RR-I-7]. Detective Paine testified at this hearing

that the CI did not make the actual purchase (delivery by actual transfer) of

the cocaine but instead it was a third party (delivery by constructive transfer

or by parties) who went into the residence at 201 Wearden Drive and

purchased the cocaine. [RR-I-8]. Detective Paine that described how the CI

had first attempted to purchase cocaine from a man named Nathan but that

Nathan didn’t have any cocaine. [RR-I-9]. Detective Paine then described

how the CI and Nathan then met with a Mr. Jose Partida, who also did not
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             5
have any cocaine. Id. Detective Paine then described how the CI, Nathan,

and Mr. Partida then met with a Mr. Ivan Casas who also did not have any

cocaine. [RR-I-9-10]. Detective Paine then testified as to how Mr. Casas

took them to 201 Wearden Drive, went into the residence, and then returned

with the cocaine (demonstrative that Mr. Casas or persons within the

residence delivered and possessed with intent to deliver controlled

substances). [RR-I-10]. Detective Paine then acknowledged that he had

never worked with Mr. Casas before and could not attest to Mr. Casas’s

trustworthiness. [RR-I-11].

            Detective Paine then testified that the CI did not witness the

transaction inside 201Wearden Drive, had not gone inside the residence, and

had purchased the drugs from Mr. Casas rather than from inside the

residence. Id. Detective Paine also stated, as heard in the CI’s covert audio

recording, that Mr. Casas had stated he had purchased the cocaine from

inside the residence from a friend of the Appellee’s. [RR-I-11].

            On cross-examination Detective Paine explained that the reason he

did not put Nathan, Mr. Partida, or Mr. Casas’s names in the affidavit was to

help protect the identity of the CI. [RR-I-13]. (The combination of naming

all persons present but the CI, the uniqueness that grouping of persons at the

residence and the shortness of time before the warrant execution eliminates
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             6
alternative identities for the CI). Detective Paine also confirmed that the

police were monitoring what was being said in the CI’s vehicle throughout

this entire episode. Id. Detective Paine also established that from where the

CI was parked he would have been able to see Mr. Casas go into the

residence at 201 Wearden Drive.                     [RR-I-14].   Detective Paine then

confirmed there was no reason to believe that the CI had not obtained the

cocaine from that location. Id.

            The trial court found the information in the affidavit was conclusory

and lacked sufficient underlying facts to establish probable cause. [CR-I-

27]. The court specifically noted that there was nothing in the affidavit

indicating that the contraband obtained at the 201 Wearden address could

only have been obtained from inside the residence. Id. The trial court also

concluded that the affidavit contained a reckless disregard for the truth since

it created an inference that the CI went inside the residence and purchased

the cocaine while inside the residence. Id. Accordingly, the trial court

ordered the evidence obtained pursuant to the search warrant for Appellee’s

residence be suppressed. Id.

                                     SUMMARY OF THE ARGUMENT

            The affidavit stated the specific facts that caused the affiant officer

and issuing magistrate to reasonably believe a crime probably had or would
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                7
soon occur. Mere fair probability in fact as measured by a reasonable issuing

magistrate is the benchmark of sufficiency. Implicit in the trial court’s

finding is a narrowing of the statutory definition of delivery and increasing

of the states statutory burden. Issuance of a search warrant and

determination of probable cause does not oblige the adjudicative

requirement of corroboration, the elimination of all alternative persons and

explanations, proof beyond all reasonable doubt of each element or

recitation of all known information. The affiant officer and issuing

magistrate rightly formed a reasonable belief in probable criminality.

            The issuing magistrate had a substantial basis for concluding there

was probable cause to search Appellee’s residence. The magistrate had

information that a drug deal occurred at Appellee’s residence and that the

police had intelligence reports that Appellee himself was a drug dealer.

Based on those facts, it was reasonable for the magistrate to infer that

Appellee was involved in the drug transaction and that Appellee had

additional narcotics in his residence.

            Furthermore, the trial court was required to give great deference to the

issuing magistrate’s conclusions when reviewing the legality of the search

warrant. The trial court failed to do so and thus committed reversible error



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             8
in finding there was no probable cause to support the issuance of a search

warrant in this case.

            The trial court also erred by finding a “reckless disregard for the

truth” in the information provided in the affidavit. Every statement made in

the affidavit was a true statement and thus there was no justification for

finding a Franks violation. Nor could the trial court infer such a violation

based on information omitted from the affidavit. As a factual matter there

was no basis for concluding the affidavit made a false inference, and as a

matter of law it was inappropriate for the trial court to make a Franks

determination on the basis of information being left out of the affidavit,

since there is no basis in Texas law for finding a Franks violation based on

an omission, and in fact the Court of Criminal Appeals has cautioned courts

to judge affidavits by the facts contained within them rather than on what

was omitted from the affidavit.

            In the alternative, even if the trial court was correct that there was a

Franks violation, it still erred by ordering the suppression of the evidence

obtained under this search warrant. The remedy for a Franks violation is

only to remove the false statement from the affidavit. In this case the only

portion of the affidavit that was deemed false by the trial court was the trial

court’s own inference about what the affidavit was asserting. Even if the
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             9
trial court’s inference was removed from the affidavit though, the remaining

undisputed, truthful portions of the affidavit were still sufficient to establish

probable cause. As such the warrant would still be valid even after an

adverse Franks ruling which means the evidence obtained pursuant to that

warrant should not have been suppressed.

                                             ARGUMENT

I.         The trial court erred in overruling the magistrate’s finding that
           the search warrant affidavit established probable cause

           The appellate courts normally review a trial court’s ruling on a motion

to suppress by applying a bifurcated standard of review where they give near

total deference to the trial court’s findings as to historical facts while

reviewing de novo the trial court’s application of the law. State v. McLain,

337 S.W. 3d 268, 271 (Tex. Crim. App. 2011). However, the legal analysis

is different when the suppression hearing concerned the trial court

determining whether there was probable cause to support the issuance of a

search warrant. In such circumstances there is no credibility determination

for the trial court to make, since the trial court’s review is restricted to the

four corners of the affidavit. Id. Therefore reviewing courts are to apply a

highly deferential standard when evaluating a magistrate’s decision to issue

a warrant. Id. As long as the issuing magistrate had a substantial basis for

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                10
concluding that probable cause existed, the issuing magistrate’s finding of

probable cause must be upheld. Id.

           Accordingly, the reviewing court must refrain from interpreting the

affidavit in a hyper-technical manner and must instead interpret the affidavit

in a commonsensical and realistic manner that recognizes that the issuing

magistrate is entitled to make reasonable inferences when reviewing the

affidavit. Id. Additionally, when in doubt the reviewing court must defer to

all reasonable inferences that the issuing magistrate could have made. Id.

Furthermore, the issuing magistrate’s decision should carry the day in

doubtful or marginal cases, even if the reviewing court might have come to a

different conclusion itself. Flores v. State, 319 S.W. 3d 697, 702 (Tex.

Crim. App. 2010).                            Giving great deference even in close cases to the

findings of the magistrates is vital as it helps promote the Constitution’s

preference for warrants by encouraging police officers to utilize the warrant

process rather than to try and find an exception to the warrant requirements.

See Rodriguez v. State, 232 S.W. 3d 55, 59 (Tex. Crim. App. 2007). This

obligation to give great deference to the issuing magistrate falls on both trial

courts and appellate courts. McLain, 337 S.W. 3d at 271-272.

            With that legal framework in mind, it is clear the trial court erred in

overruling District Court Judge Marr’s determination of probable cause in
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                          11
this case. Probable cause exists when under the totality of circumstances

there is a fair probability that contraband will be found at a specific location.

Id. at 272. This is a non-demanding standard. Id. It does not require

certainty that contraband will be found at that location to establish probable

cause. It does not even require a preponderant probability that contraband

will be found there. See Texas v. Brown, 460 U.S. 730, 742 (1983). There

just has to be a “fair probability”, and the affidavit in this case provided

more than sufficient basis to establish a fair probability that there was

contraband at the 201 Wearden address.

             Clause 7(d) of the affidavit established that a controlled purchase of

cocaine took place at the 201 Wearden address. [DE-2-pg. 3]. Now it is

true that Clause 7(d) did not clearly state whether the purchase took place

inside the residence or on the outside of the residence, but it did not need to

do so to establish probable cause in this case. Even if the purchase of the

narcotics took place outside of the residence there would still be sufficient

grounds for District Court Judge Marr to make a reasonable inference that

there was contraband inside the residence or within the curtilage given the

other information in the affidavit.

             The Flores case provides key insight on this point. In that case the

State’s affidavit relied on two essential points: 1) that the police had
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             12
received anonymous tips about drug activity at the Flores residence and 2)

that on two occasions the police found marihuana residue in the garbage in

front of the residence. Flores, 319 S.W. 3d at 703. This was found to be

enough to support the magistrate’s finding of probable cause. Id.

             The facts of this case are similar to Flores. Both cases involve

evidence of narcotic activity on the property but not necessarily direct

evidence of narcotics in the suspect residence itself. In Flores the evidence

was marihuana residue in the trash in front of the property while in the

present case it was the sale of narcotics at that location but not inside the

residence. In both circumstances it is clearly possible to envision innocent

explanations for those suspect facts. In Flores, maybe the marihuana residue

was left by a neighbor smart enough not to leave an illegal substance in his

own trash, just like here maybe the drug dealers pick innocent driveways to

sell their narcotics so they don’t tip the police off to their main stash of

drugs. But while it is possible to envision scenarios that could explain away

the suspicious facts, that does not negate probable cause, and that is where

the trial court made its fundamental error. The trial court’s findings state

that the affidavit failed to show the contraband could only have been

obtained from inside the suspected place. [CR-I-27]. But there was no

requirement for the affidavit to do so. The State is not required to exclude
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             13
all other possibilities to establish probable cause to search a location. And

again the State does not even have to show it is more likely than not that the

contraband came from inside the residence. All the State has to show is that

there is a fair probability that there was contraband inside the residence.

Evidence of a drug sale at that residence is strong evidence by itself to

support such a conclusion.

             Nor was the evidence of the drug purchase the only evidence the State

presented in its affidavit to support a claim of probable cause for there being

contraband at the 201 Wearden residence.             Clause 7(g) of the State’s

affidavit likewise stated that the Victoria Police Department Special Crimes

Unit had police intelligence from multiple sources that the Appellee was a

drug dealer. [DE-2-pg. 4]. Clauses 7(h) likewise described an anonymous

tip that the Appellee had recently possessed contraband material. Id. And

Clauses 7(g) and 7(i) together created a logical inference that Appellee lived

or at least had access to the residence at 201 Wearden. Id.

             An anonymous tip by itself may be insufficient to establish probable

cause to search. Flores, 319 S.W. 3d at 703. However, in conjunction with

other evidence it is a factor that can be considered to determine whether

there was probable cause. Id. Thus just as the magistrate in Flores was able

to utilize the information from the anonymous tips in his affidavit to support
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             14
his finding of probable cause, so would District Court Judge Marr be

permitted to consider that the Victoria Police Department had intelligence

reports stating that the Appellee was a drug dealer.

            Thus District Court Judge Marr, in evaluating the affidavit, had

information that: 1) the Appellee was a drug dealer, 2) that Appellee lived at

the 201 Wearden Drive residence, and 3) that the sale of narcotics took place

at the 201 Wearden address. Based on those facts, it was reasonable for

District Court Judge Marr to infer that there was a fair probability that there

were narcotics inside the 201 Wearden residence. It is not an absolute

certainty that there were narcotics in that residence, but certainly it is logical

to infer that if a drug transaction takes place on the property of an individual

who has been reported to be a drug dealer that said individual was most

likely involved in the drug transaction.          (It would be a remarkable

coincidence after all for Mr. Casas to pick a driveway at random to conduct

his narcotic sale in that just happened to be the driveway of a different,

completely uninvolved drug dealer.) And if it was reasonable for District

Court Judge Marr to infer that drug transactions involving the Appellee are

taking place at 201 Wearden then it would also be reasonable for District

Court Judge Marr to infer that additional narcotics could be found at that

residence. Where there is smoke (in this case a drug transaction occurring at
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             15
the property of a reported drug dealer) it is reasonable to infer fire

(additional drugs located inside the residence.) See Rodriguez, 232 S.W. 3d

at 63.

           Therefore it was reasonable for District Court Judge Marr to conclude

that the information presented to him in the search warrant affidavit

combined with the reasonable inferences that flow from those facts

established probable cause that there could be contraband inside the

residence at 201 Wearden Drive. The inferences he drew were not based on

conclusory statements but rather on specific, true facts provided by the

police (that a drug purchase took place at 201 Wearden Drive, that the

Appellee lived there, and that anonymous sources had reported that the

Appellee sold drugs.). Perhaps a different magistrate considering these same

facts would have come to a different conclusion, but that does not justify

overturning District Court Judge Marr’s issuance of the search warrant. The

facts that were in the affidavit, combined with the reasonable inferences

District Court Judge Marr made from those facts, were sufficient to establish

a fair probability that contraband would be found at the 201 Wearden Drive

residence. That is all that is legally required to support the issuance of a

warrant. Id. at 64; Tex. Crim. Proc. Code Ann. art. 18.01(b) (West).



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             16
            Reviewing courts are obligated to defer to the issuing magistrate and

uphold his determinations based on all reasonable and commonsense

inferences and conclusions that the affidavit’s facts support. Rodriguez, 232

S.W. 3d. at 64. Even in the marginal cases where the reviewing court itself

might have ruled differently on the affidavit, it must still accept the issuing

magistrate’s determination.                  Flores, 319 S.W. 3d at 702.   Only if the

magistrate lacked a substantial basis for his determination of probable cause

can that determination be overruled. McLain, 337 S.W. 3d at 271.

            The trial court failed to provide the highly deferential standard to

which District Court Judge Marr, as the issuing magistrate in this case, was

entitled on his finding of probable cause.                 That failure to provide the

appropriate deference was plain error.                  District Court Judge Marr was

entitled to make reasonable inferences based off of the facts presented to

him in the affidavit, and thus facts coupled with his inferences were

sufficient to establish a substantial basis that there was probable cause to

support the issuance of a search warrant. District Court Judge Marr had a

substantial basis to decide there was probable cause, and thus the warrant

should have been upheld as valid, and the evidence obtained pursuant to that

warrant should not have been suppressed. To the extent the trial court ruled

otherwise, the trial court’s ruling was error and should be reversed.
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                  17
II.        The trial court erred in finding a “reckless disregard for the
           truth”in the search warrant affidavit.

            The trial court did not justify its granting of the suppression motion

solely on a finding of lack of probable cause in the affidavit. Instead the

trial court also concluded that there was a “Franks” issue and found the

affidavit involved a “reckless disregard for truth” due to the affidavit

creating an impression that the CI had purchased cocaine from inside the

residence at 201 Wearden Drive when in actuality it was a different person

who purchased the cocaine inside the residence and then the CI purchased

the cocaine from that person. [CR-I-27]; Franks v. Delaware, 98 S. Ct.

2674 (1978). The trial court’s conclusion is unsupportable because there

was no false statement in the affidavit in this case.

             Clause 7(d) of the affidavit states, “The CI #254 responded to 201

Wearden Dr., where the controlled Purchase took place.” [DE-2-pg. 3].

That statement is absolutely truthful. The CI did travel to 201 Wearden

Drive and the controlled purchase took place at that address. [RR-I-10-12].

The trial court made no findings saying it did not believe the testimony at

the suppression hearing concerning that the CI traveled to 201 Wearden

Drive and that drugs were purchased at that location. Quite the contrary in




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             18
fact: the trial courts Suppression Order acknowledges that that is exactly

what happened. [CR-I-27].

                Nothing in the affidavit states that the CI ever went inside

201Wearden Drive, that the CI witnessed the drug transaction that occurred

inside 201 Wearden Drive, or that the CI personally purchased drugs from

the Appellee.                    [DE-2].     Therefore there was no false statement in the

affidavit. A Franks violation requires showing that either a false statement

intentionally and knowingly or with a reckless disregard for the truth was

included by the affiant in the warrant affidavit. Franks, 98 S. Ct. at 2675.

As such the challenged statement must be false to constitute a Franks

violation. Here there simply was no false statement, and as such there can

be no Franks violation.

                 Notably the trial court’s own findings of fact do not allege any

statement in the affidavit that was actually false. [CR-I-27]. Instead the trial

court attempts to create a false statement by claiming the affadvit “creates an

inference that CI #254 went inside the residence at 201 Wearden and

purchased the cocaine.” Id. This claim of false statement by inference is

flawed both as a factual matter and as a matter of law.

                 As a question of fact the trial court’s inference regarding the

affidavit is to be reviewed de novo. A trial court in a Franks hearing is
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                      19
entitled to almost total deference on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility

and demeanor. Johnson v. State, 68 S.W.3d 644, 652 (Tex. Crim. App.

2002). However, application of law to fact questions that do not turn on

credibility and demeanor are instead reviewed de novo. Id. at 653. The

question of what kind of inference can reasonably be drawn from the

undisputed statements of fact in the affidavit is not a question that depends

on credibility or demeanor. Thus it is to be reviewed de novo, and under

such an interpretation it is clear the trial court’s interpretation of the affidavit

as creating an inference that the CI purchased the drugs himself inside the

residence at 201 Wearden is simply not a plausible interpretation of the facts

in the affidavit.

                 The affidavit specifically states in Clause 7(d) that “Throughout the

duration of the controlled purchase the CI #254 was monitored physically

and through the body wire.” [DE-2-pg. 3]. (emphasis added.) The note that

the CI was monitored physically logically makes it impossible to credibly

believe that he was inside the residence when the purchase took place. The

investigating officers would have had to be able to see through the residence

walls or have accompanied CI #254 inside the residence to have physically

monitored him inside the residence. Thus obviously by the plain language
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                              20
of the affidavit, the CI was not inside the building when the controlled

purchase took place, but was rather in or near his vehicle, where he was able

to be physically monitored by the investigating officer.

                It should also be noted that Clause 7(d) also specifically comments

on how the CI’s vehicle “was parked in the driveway of 201 Wearden for

several minutes.” [DE-2-pg. 3]. There is no logical reason to include this

fact if the purchase did not actually take place in or near that automobile.

The location of the vehicle would be irrelevant if the police were describing

a purchase that took place inside a building.              The automobile’s exact

location is only important if it was involved in the purchase of the narcotics.

Therefore the logical interpretation of the affidavit is that the purchase of

narcotics occurred in or near that automobile, while it was sitting in the

driveway at 201 Wearden Drive, which is exactly what the testimony at the

suppression hearing shows is what happened since that was the location

where Mr. Casas sold (actual transfer) the cocaine he had acquired

(constructive transfer) to the CI. [RR-I-10-11].

                For the trial court to divine a false inference from the affidavit as

written thus required the trial court to twist the affidavit until it was nearly

unrecognizable, while ignoring the clear statements in Clause 7(d) that make

it obvious that the CI was not inside the residence during the purchase of the
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             21
narcotics.                Affidavits are supposed to be interpreted in a realistic,

commonsensical manner. McLain, 337 S.W. 3d at 271. The trial court

failed to do that. Instead the trial court interpreted the affidavit in exactly

the sort of hyper-technical, unrealistic manner that both the United States

Supreme Court and the Court of Criminal Appeals have warned courts

against doing. Illinois v. Gates, 103 S. Ct. 2317, 2359 (1983); McLain, 337

S.W. 3d at 271.                        The trial court’s hyper-technical interpretation, which

ignores key facts in the affidavit to reach its conclusion, is without merit and

should be rejected in favor of the common sense interpretation that the

affidavit never claimed the CI was inside the residence during the purchase.

And as such there was even by omission, no basis for finding a Franks

violation.

                In the alternative though, it is not even necessary to consider

whether or not the trial court was wrong as a matter of fact in deciding that

the affidavit created a false inference, because as a matter of law the trial

court should never have considered whether or not the affidavit created any

inferences.

            The trial court was unable to cite any case law in its findings,

supporting its contention that a Franks violation can be found due to the



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                       22
omission of facts from an affidavit. [CR-I-27]. This is because no such law

exists.

            In fact the Court of Criminal Appeals has made it very clear that

courts should not be considering whether facts were left out of an affidavit.

Rather the Court of Criminal Appeals wants the review of search warrant

affidavits to turn on what facts are in the affidavit. See Rodriguez, 232 S.W.

3d at 64. Indeed the Court of Criminal Appeals specifically cautioned that,

“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. The Court of

Criminal Appeals then concluded that “the only issue is whether the facts

that actually were in the affidavit, combined with all reasonable inferences

that might flow from those facts” establish probable cause. Id. (emphasis

added.)

            As such it is clear the Court of Criminal Appeals does not want

magistrates and reviewing courts considering what additional facts could

have been placed in an affidavit. Rather the affidavit must stand or fall

based on what is in the affidavit (and the reasonable inferences that can be

drawn from those facts.) By finding a “reckless disregard for the truth” not

based on what was in the affidavit but rather based on what was missing
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             23
from the affidavit, the trial court acted improperly. The trial court went

beyond the scope of authority and by doing so was disregarding the Court of

Criminal Appeals’s guidance from Rodriguez.                This was improper and

should not stand.

            Any Franks hearing about the truthfulness of an affidavit should be

based solely on the truthfulness of the statements in the affidavit itself, and

thus as a matter of law it was error for the trial court to find a Franks

violation based on information not being included in the affidavit.

            Further, the trial court’s finding of falsity relies upon: 1) twisting the

plain meaning of the affiant officer’s words, 2) requiring the exclusion of

alternative explanation, and 3) increasing the burden beyond sufficient facts

to conclude only probable cause by defining veracity as including all known

or knowable information. This trial court’s finding also suggest that only

direct transfers corroborated (Tex. Crim. Proc. Code art. 38.141 (West)) by

direct observation constitutes delivery and that anything different requires

explanation.

            As to corroboration, “A defendant may not be convicted,” clearly

refers to an adjudicative burden of proof. Tex. Crim. Proc. Code art. 38.141

(West). The statute more broadly defines delivery: “‘Deliver’ means to

transfer, actually or constructively, to another a controlled substance …
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             24
regardless of whether there is an agency relationship. The term includes

offering to sell a controlled substance.” Tex. Health & Safety Code Ann. §

481.002(8) (West). The suspected criminal activity is Delivery of a

Controlled Substance, Penalty Group 1. Further, the offense of delivery

involves “a person commits an offense if the person knowingly

manufactures, delivers, or possesses with intent to deliver a controlled

substance.” Tex. Health & Safety Code § 481.112 (West).

            The trial court’s finding of insufficiency ignores statutory definitions

and requirements, as well as court precedence of the same, while it

contemptuously treats the issuing magistrate findings. In support of that

finding, the trial court found falsity by omission when viewing the affidavit

only after twisting the language used, ignoring again the law applicable and

through tortured logic. This finding of falsity is nothing more than imagined.

III.           Even if there was a Franks violation, the trial court still erred by
               suppressing the evidence in this case.

                In the alternative again, even if we assume that a Franks violation

can be created by evidence being left out of an affidavit, and even if we

assume on the specific facts of this case, the omitted material created a false

inference that the CI personally purchased the narcotics from inside the

residence at 201 Wearden Drive, the trial court still erred by setting the

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             25
remedy for that supposed violation as being the suppression of the evidence

obtained by the search warrant.

                 The mere finding of a Franks violation does not by itself

automatically require suppression of the evidence in the accompanying

warrant. Rather the remedy for a Franks violation is simply to have the false

material excised from the warrant. See Harris v. State, 227 S.W. 3d 83, 85

(Tex. Crim. App. 2007).

                  In the present case by the trial court’s own findings the only false

information in the warrant would be the “inference that CI#254 went inside

the residence at 201 Wearden and purchased the cocaine.” The remainder of

the affidavit would still be perfectly valid since the trial court found no other

portion of it to be untruthful.

                  As such even on an adverse Franks finding the only thing the State

would lose would be an inference created by the trial court itself. An

inference it must be remembered that the State itself has never asserted in

this case, and an inference that the State is not relying upon to support its

claim of probable cause.

                As was discussed in Section I of the Argument section of this brief,

the State does not need the CI to have purchased the cocaine from inside the

residence to establish probable cause to search the residence. The fact that
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                              26
the CI purchased cocaine in the driveway at 201 Wearden (asserted in the

affidavit and not disputed by the trial court), coupled with the fact that the

Appellee lives or at least has access to 201 Wearden (asserted in the affidavit

and not disputed by the trial court), couple with the fact that the police have

had multiple intelligence reports that the Appellee was dealing drugs

(asserted in the affidavit and not disputed by the trial court) is enough for the

magistrate to have found probable cause even without the trial court’s

special inference. [DE-2-pgs. 3-4; CR-I-27]. Thus even if the trial court’s

inference is removed from the warrant, the remaining material in the

affidavit still establishes probable cause. Accordingly, there was no legal

justification for the trial court to invalidate the entire warrant and suppress

the evidence obtained by the warrant, and to the extent the trial court’s

ruling did so, that ruling should be reversed.




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             27
                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court reverse the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL DISTRICT ATTORNEY


                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139


                                             ATTORNEYS FOR THE APPELLANT,
                                             THE STATE OF TEXAS




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                  28
                                     CERTIFICATE OF COMPLIANCE


            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellant’s Brief submitted on

January 2, 2015, excluding those matters listed in Rule 9.4(i)(3) is 5,624.



                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                  29
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief has been served on

Brent Dornburg, Attorney for the Appellee, by depositing same in the United

States Mail, postage prepaid on the day of January 2, 2015.



                                                   /s/ Brendan W. Guy
                                                   Brendan W. Guy
                                                   Assistant Criminal District Attorney
                                                   SBN 24034895
                                                   205 North Bridge Street, Suite 301
                                                   Victoria, Texas 77902
                                                   Telephone: (361) 575-0468
                                                   Facsimile: (361) 576-4139




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                        30
