                                              OPINION
                                          No. 04-10-00679-CR

                                       Jorge Alberto RAMIREZ,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                     From the 49th Judicial District Court, Zapata County, Texas
                              Trial Court No. 1992(9129972507) TRN
                             Honorable Jose A. Lopez, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: April 6, 2011

AFFIRMED

           After the trial court denied his motion to suppress, appellant Jorge Alberto Ramirez pled

guilty to possession of a controlled substance. 1 The trial court sentenced Ramirez to ten years

probation. On appeal, Ramirez raises a single issue contending the trial court erred in denying

his motion to suppress because the search warrant was invalid because it failed to describe the

items to be seized or the place to be searched. We affirm.


1
 Ramirez pled guilty pursuant to a written plea bargain agreement with the State. As part of that agreement,
Ramirez reserved the right to appeal the denial of the motion to suppress.
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                                          BACKGROUND

       In January 2009, law enforcement officials searched Ramirez’s home in San Ignacio,

Zapata County, Texas. The search was conducted pursuant to a warrant signed by a local

magistrate.   During the search, officers found and seized cocaine and drug paraphernalia.

Ramirez was subsequently indicted for possession of cocaine.

       Before trial, Ramirez filed a motion to suppress the items seized from his home, arguing

the search warrant was invalid because it did not identify with sufficient particularity the items to

be seized or the place or person to be searched. Ramirez claimed that because the warrant lacked

the necessary specificity, the search and seizure was conducted in violation of his rights under

the Fourth and Fourteenth Amendments of the United States Constitution, Article I, section 9 of

the Texas Constitution, and article 18.04 of the Texas Code of Criminal Procedure. At the

hearing, Ramirez and the State agreed the trial court was presented with a legal question

concerning the validity of the warrant. After arguments of counsel, the trial court denied the

motion. After his motion was denied, Ramirez entered into a plea bargain agreement with the

State pursuant to which he pled guilty and was sentenced to probation. As part of the plea

agreement, the trial court granted Ramirez permission to appeal the denial of the motion to

suppress.

                                             ANALYSIS

       In a single issue, Ramirez contends the trial court erred in denying his motion to suppress

because the warrant was invalid due to its failure to describe with particularity the place or

person to be searched or the items to be seized. The State counters, as it did at the suppression

hearing, that the affidavit in support of the search warrant, which was incorporated into the

warrant by reference, signed by the magistrate, and described with particularity the items to be



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seized and the place to be searched, rendered the warrant valid. Ramirez replies that because the

State did not prove the affidavit accompanied the warrant during the search of Ramirez’s home,

the affidavit cannot validate the warrant.

         We review a trial court’s ruling on a motion to suppress for abuse of discretion.

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); State v. Triana, 293 S.W.3d

224, 226 (Tex. App.—San Antonio 2009, pet. ref’d). We give great deference to the trial court’s

determination of historical facts, especially those based upon a witness’s credibility and

demeanor, but review de novo the application of the law to those facts. Id. When a trial court’s

ruling does not turn on the credibility or demeanor of witnesses, as in this case, we apply a pure

de novo standard of review. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);

Romo v. State, 315 S.W.3d 565, 571 (Tex. App.—Fort Worth 2010, pet. ref’d).

         The Fourth Amendment states 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 (emphasis added). This requirement is

also found in Article I, Section 9 of the Texas Constitution, and in article 18.04 of the Texas

Code of Criminal Procedure (“the Code”). TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. art.

18.04(2) (West 2005). It is undisputed that the face of the warrant in this case did not comply

with the constitutional or statutory requirements regarding particularity of description, and by

itself would be invalid under the above-referenced constitutional and statutory provisions. 2 See

U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. art. 18.04. However,

the warrant incorporated the supporting affidavit by reference, and the affidavit specifically


2
 The warrant states, in pertinent part that the officers are “commanded to enter the suspected place and premises
and to search the suspected person described in said Affidavit and to there search for the property described in said
Affidavit and to seize the same and bring it before me.” Clearly, the warrant does not describe the place or person to
be searched, and it does not describe the property to be seized.

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identified the place to be searched, the property to be seized, and the person to be arrested. The

warrant specifically stated an affidavit is attached to the warrant and “is by this reference

incorporated herein for all purposes.”     Both the warrant and its supporting affidavit were

admitted into evidence at the suppression hearing.

       It is well-settled law in Texas that a description contained in an affidavit controls the

description contained in the warrant. Riojas v. State, 530 S.W.2d 298, 303 (Tex. Crim. App.

1975) (citing McTyre v. State, 113 Tex. Cr. R., 19 S.W.2d 49 (1929)). And therefore, if the

description in the affidavit is compliant with the constitutional and statutory requirements

regarding particularity of the description of the place or person to be searched and the items to be

seized, the warrant itself is valid even if standing alone it would not meet those requirements.

See, e.g., Madrid v. State, 595 S.W.2d 106, 107 (Tex. Crim. App. 1979) (holding statement in

supporting affidavit that place to be searched was 4610 Alberta #3 rendered warrant sufficiently

particular as description in affidavit controls description in warrant); Phenix v. State, 488 S.W.2d

759, 764 (Tex. Crim. App. 1972) (holding search warrant’s incorporation by reference of

affidavit was sufficient to make description of place to be searched part of warrant itself). The

affidavit controls because it is the “actual instrument upon which validity of the search must

succeed or fail, and thus is usually more specific and precise in reciting the information known to

an affiant than is the warrant which follows.” Affatato v. State, 169 S.W.3d 313, 317 (Tex.

App.—Austin 2005, no pet.).

       The affidavit in this case was, according to the warrant, attached and incorporated into

the warrant by reference. And, the affidavit is clearly sufficiently specific to meet the mandates

of the Fourth Amendment, the Texas Constitution, and article 18.04 of the Code. The affidavit

describes the place to be searched as:



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       A white in color with green trim single-wide mobile home located on 4129 North
       U.S. Hwy 83, Zapata County, Texas. The front entrance to the residence faces
       east and the back door of the residence faces to the west. A circular driveway is
       located on the east side of the residence. A driveway is located on the north side
       of the residence which lead [sic] to a white in color with red shingled roof three
       car port, located on the north west side of the property.

       The affidavit further states that the described premises are controlled by Ramirez, and

that officers intend to search for a “useable amount of controlled substance, to wit: Cocaine.”

Ramirez does not dispute sufficiency or specificity of the affidavit. Rather, Ramirez contends

the State could not rely upon the affidavit to validate the warrant because the State did not

establish the affidavit “accompanied the warrant during the search of Ramirez’s home.” We find

this argument without merit for two reasons.

       First, assuming it was the State’s burden to establish the affidavit “accompanied” the

warrant during the search, we hold the State met that burden. At the suppression hearing, the

State introduced the search warrant and the affidavit into evidence, and both documents were

admitted into evidence by the trial court without objection. The warrant specifically states the

affidavit is attached to the warrant–“the Affiant whose signature is affixed to the Affidavit

attached hereto is a State of Texas Peace Officer . . .” (emphasis added). This is proof the

affidavit was attached to the warrant, and Ramirez made no showing that it was subsequently

detached.

       Second, Texas law does not require that the affidavit be attached to the warrant at the

time of the search. Section 18.06 of the Code requires that at the time of a search, the officer

executing the warrant is to “present a copy of the warrant” to the owner of the premises being

searched. TEX. CODE CRIM. PROC. art. 18.06(b). The officer is not required to give a copy of the

affidavit to the premises owner. Id. Thus, even if the warrant and affidavit had become




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separated by the time Ramirez’s home was searched, this did not invalidate the warrant. 3 See id.;

see also Turner v. State, 886 S.W.2d 859, 864 (Tex. App.—Beaumont 1994, pet. ref’d) (holding

that failure of affidavit to be physically attached to warrant did not invalidate warrant as officer

not statutorily required to serve affidavit with warrant).

         Ramirez relies upon the Supreme Court’s opinion in Groh v. Ramirez to support his

contention that the warrant cannot be construed with reference to the affidavit because the

affidavit did not accompany the warrant during the search.                          540 U.S. 551, 558 (2004).

According to Ramirez, the Supreme Court established a rule in Groh that a warrant may not be

construed with reference to supporting documentation unless the supporting document

accompanies the warrant at the time of the search. See id. We have reviewed Groh and find it

does not hold as Ramirez suggests.                See id. Rather, in Groh, the Supreme Court merely

acknowledged that a majority of federal circuit courts require that to construe a warrant with

reference to supporting documentation for purposes of establishing particularity, the supporting

documentation must be incorporated into the warrant by reference and be attached to the warrant.

Id. However, the Court then noted that in the case before it, neither requirement was satisfied

and it refused to further consider the issue. Id. Groh therefore does not support Ramirez’s

argument.

                                                   CONCLUSION

         Based on the foregoing, we hold the search warrant was not invalid due to a failure to

describe with particularity the items to be seized or the person or place to be searched. The

accompanying affidavit was sufficient to validate the warrant, and the evidence from the

3
  Notably, this court has held that even the failure of police to provide a copy of the search warrant will not support a
reversal in the absence of a showing of injury by the defendant. Robles v. State, 711 S.W.2d 752, 753 (Tex. App.—
San Antonio 1986, pet. ref’d). Here, Ramirez has not even alleged harm or injury, i.e., that the wrong house was
searched, etc. If the failure to provide the warrant is not error in the absence of a showing of harm, certainly any
failure to have the affidavit attached to the warrant would not be error in the absence of a showing of harm. See id.

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suppression hearing proves the affidavit was attached to the warrant, and even if later detached,

this did not invalidate the warrant. The trial court did not, therefore, err in denying the motion to

suppress. Accordingly, we overrule Ramirez’s sole issue and affirm the trial court’s judgment.




                                                  Marialyn Barnard, Justice

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