                                MEMORANDUM OPINION
                                       No. 04-09-00424-CR

                                      Ruben Daniel MORIN,
                                            Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                    From the 227th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-8486
                         Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: September 15, 2010

AFFIRMED

           A jury found Ruben Morin guilty of murdering William Swisher, and the trial court

sentenced Morin to 75 years imprisonment and fined him $10,000. On appeal, we are asked to

decide if the trial court erred by: (1) refusing to conduct an in camera hearing to determine

whether to compel the State to provide the identity of a confidential informant; (2) denying

Morin’s motion to suppress in which he alleged authorities made false or misleading statements
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in the warrant affidavit; and (3) denying Morin’s motion for a mistrial after a witness remarked

that Morin’s tattoo was an insignia for a criminal street gang. We affirm.

                                                   BACKGROUND

           Swisher met John Villarreal at Villarreal’s apartment on June 24, 2007, where the two

men used cocaine. After Swisher fell asleep on Villarreal’s bed, Villarreal heard someone at his

door. At the door was Morin, who pushed his way into the apartment. Morin placed a gun to

Villarreal’s chin upon entering the apartment and asked Villarreal whether Swisher had hidden

any drugs or money inside the residence. Villarreal answered negatively and Morin attempted to

arouse Swisher. Morin fired his pistol to awaken Swisher, who got up upon hearing the gunshot.

Morin proceeded to confront Swisher about “messing around with [his] girlfriend” 1 and asked

him where he had placed his money and drugs. Swisher responded that he did not know what

Morin was talking about and gave Morin his wallet and car keys. Morin grabbed the items from

Swisher and then shot him in the chest and stomach. Morin “paced back and forth” and then ran

out of the apartment. Swisher did not survive the gunshot wounds he received from Morin and

died on the floor of Villareal’s apartment.

           The authorities, with the assistance of a confidential informant, located Morin at an

apartment later that day. Morin was apprehended by police following a brief “scuffle,” which

occurred approximately forty to fifty feet away from the apartment.                             Officers entered the

apartment from which Morin had emerged and conducted a protective sweep of the residence “to

check for other combatants.” During the course of their protective sweep, officers observed

drugs and drug paraphernalia in plain view as well as a cleaning crew inside the apartment. San

Antonio Police Officer Daniel Molina prepared a warrant affidavit and secured a search warrant


1
    Morin was residing with an exotic dancer, Stephanie Ruiz, at the time of Swisher’s death.



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for the premises. Officers executed the warrant later that day and seized, among other items,

clothing they believed Morin wore at the time of Swisher’s death and multiple rounds of

ammunition matching the caliber of the murder weapon. 2

           Morin was indicted for the offense of murder. He pleaded not guilty and proceeded to a

jury trial.     The jury found Morin guilty, and the trial court sentenced Morin to 75 years

imprisonment and fined him $10,000. This appeal followed.

                            DISCLOSURE OF THE CONFIDENTIAL INFORMANT

           In his first issue, Morin argues the trial court abused its discretion by refusing to conduct

an in camera hearing to determine whether to compel the State to provide the identity of the

confidential informant who provided information to the police about Swisher’s murder. We

review the trial court’s ruling for an abuse of discretion. Ford v. State, 179 S.W.3d 203, 210

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). This court will affirm the trial court’s ruling

unless the court’s decision is so clearly wrong as to lie outside the zone of reasonable

disagreement. Id. In determining whether the trial court abused its discretion, we must consider

all of the circumstances of the case. Olivarez v. State, 171 S.W.3d 283, 292 (Tex. App.—

Houston [14th Dist.] 2005, no pet.).

           Under Texas Rule of Evidence 508, the State has a privilege to withhold the identity of

any person who provided information relating to or assisting in an investigation of a possible

crime. TEX. R. EVID. 508(a). This privilege, however, is not absolute. Williams v. State, 62

S.W.3d 800, 802 (Tex. App.—San Antonio 2001, no pet.). “If the evidence shows that the

informant may be able to give testimony essential to a fair determination of the guilt or

innocence of the accused, the privilege does not apply.” Id.; see TEX. R. EVID 508(c)(2).



2
    The murder weapon was never found by the police.


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       The accused bears the threshold burden of demonstrating there is a reasonable probability

the informer may give testimony necessary to a fair determination of the issue of guilt or

innocence. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991); Portillo v. State, 117

S.W.3d 924, 928 (Tex. App.—Houston [14th Dist.] 2003, no pet.). To meet his burden, the

accused must provide more than mere conjecture or speculation; he must show the informant’s

testimony would significantly aid the jury in determining guilt or innocence. Bodin, 807 S.W.2d

at 318. The filing of a motion to disclose is insufficient to obtain a hearing, much less compel

disclosure. Id. However, because the defendant may not actually know the extent of the

informant’s involvement, he is only required to make a plausible showing of how the testimony

may be important. Id.

       If the defendant meets this initial burden, the State must be given an opportunity to show,

in camera, facts relevant to whether the informer can supply the alleged testimony. Long v.

State, 137 S.W.3d 726, 732 (Tex. App.—Waco 2004, pet. ref’d). The trial court should order

disclosure of the informant’s identity if it finds a reasonable probability exists that the informer

could give testimony necessary to a fair determination of guilt or innocence. Portillo, 117

S.W.3d at 928.

       The record shows that during the course of investigating Swisher’s murder, Officer

Molina received information from a confidential informant regarding a murder on the “South

Side” involving a stripper. The informant indicated “some strippers set up a drug dealer and a

guy killed the dealer.” The informant indicated “the suspect had hidden the gun that was used in

this murder, [sic] somewhere down the street from the location of the murder.” The informant

also gave Officer Molina information about where the police could locate the murder suspect.




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       At the pretrial hearing on Morin’s confidential informant motion, Officer Molina testified

the informant did not participate in or witness Swisher’s murder. He or she also did not observe

Morin hide the murder weapon. Officer Molina confirmed the informant acquired his or her

information from individuals who were not involved in the crime. He stated that the informant’s

information concerning the crime “had been passed along” to him or her during his or her

telephone conversations with persons “other than the people that were involved in the crime.”

       Morin postulates that Villarreal and Stephanie Ruiz framed him for Swisher’s murder

based upon discrepancies between their statements to police and their trial testimony. He argues

the trial court should have held an in camera hearing because the informant may possess

information concerning the names of other persons who might confirm his defensive theory.

Morin’s argument amounts to nothing more than supposition and conjecture unsupported by any

evidence. See Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.—Dallas 2004, no pet.)

(rejecting argument that the informant could have identified other occupants who ‘could have

been responsible for the contraband’ as nothing more than mere conjecture or supposition

unsupported by any evidence). There is no evidence in the record showing that the informant’s

testimony would significantly aid the jury in determining guilt or innocence. In short, there is no

plausible showing of how the testimony may be important; Morin merely speculates that the

informant might provide relevant information. Because Morin failed to meet his burden of

demonstrating the informant’s testimony would have aided the jury on the issue of guilt or

innocence, we cannot say the trial court abused its discretion by refusing to conduct an in camera

hearing. Morin’s first issue is overruled.




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                                      MOTION TO SUPPRESS

       In his second issue, Morin alleges the trial court abused its discretion in denying his

motion to suppress because he proved the probable cause affidavit contained a false statement

made with reckless disregard of the truth in violation of Franks v. Delaware, 438 U.S. 154

(1978). We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). When we review a

trial court’s ruling on a motion to suppress, we give great deference to the court’s determination

of historical facts supported by the record, while we review the application of the law to the facts

de novo. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Balentine, 71 S.W.3d at

768. The trial court at a suppression hearing, even one involving a Franks claim, is the sole trier

of fact and the judge of the credibility of the witnesses and the weight to be given the evidence.

Hinojosa v. State, 4 S.W.3d 240, 247 (Tex. Crim. App. 1999); Janecka v. State, 937 S.W.2d 456,

462 (Tex. Crim. App. 1996). “In this case, the trial court did not make explicit findings of fact,

so we will, therefore, review the evidence in a light most favorable to the trial court’s ruling.”

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).

       In Franks, the Court held:

       [w]here the defendant makes 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, and if the allegedly false
       statement is necessary to the finding of probable cause, the Fourth Amendment
       requires that a hearing be held at the defendant’s request.

438 U.S. at 155-56. The burden is on the defendant to make a preliminary showing of the

deliberate falsehoods or of statements made in reckless disregard for the truth in the affidavit for

a search warrant. Id. at 171. The Texas Court of Criminal Appeals, in Cates v. State, 120

S.W.3d 352, 356 (Tex. Crim. App. 2003), discussed the three-part test for obtaining an




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evidentiary hearing under Franks. The defendant must: (1) allege deliberate falsehoods 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 the issuance of the warrant. Cates,

120 S.W.3d at 356. “[S]pecific allegations and evidence must be apparent in the pleadings in

order for a trial court to even entertain a Franks proceeding.” Harris v. State, 227 S.W.3d 83, 85

(Tex. Crim. App. 2007).

       If a defendant establishes the requisites of a substantial preliminary showing required to

obtain a full Franks evidentiary hearing, he has the burden of establishing the allegation of a

falsehood or a reckless disregard for the truth by a preponderance of the evidence. Id. At the

Franks hearing, a defendant may present evidence that goes beyond the four corners of the

affidavit underlying the search warrant. Cates, 120 S.W.3d at 355 n.3. Whenever the trial court

finds that the defendant has sustained his burden of proof, the false information in the affidavit

must be disregarded. Harris, 227 S.W.3d at 85. If the remainder of the affidavit is not sufficient

to support the issuance of the search warrant, the warrant is voided and the evidence seized under

the warrant is excluded. Id.

       The warrant affidavit at issue provides:

       Off[icer] . . . Daniel Molina . . . has good reason to believe and does believe that a
       certain place . . . known as . . . the Meadow Run Apartments and located at 5347
       Blanco Road Number J-4 . . . in San Antonio, Bexar County, Texas and being the
       premises under the control . . . of Morin, . . . is a place where . . . Cocaine . . . is
       unlawfully possessed . . . and that such belief is founded upon the following
       information: I was assigned to contact and detain the above listed person who [is a
       suspect] in a capital murder, but who had yet to be identified. Surveillance
       showed Ruben Morin contacting several individuals and speaking with them, after
       which they departed in separate directions, so that we had no idea where Ruben
       Morin’s friends had gone. After detaining Ruben Morin and Stephanie Ruiz



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       at this location (Ruben Morin was found to be active on three municipal court
       warrants) a protective sweep was made of the apartment to check for other
       combatants, as we did not know if some other individuals contacted by Ruben
       Morin were in that apartment and were possibly armed. We also noticed that
       Ruben Morin had hired a carpet cleaning service to clean his apartment and
       therefore feared that valuable evidence might be destroyed. Det. Ripley #2131
       and Det. Phillips #2421 entered this apartment and contacted the workers inside.
       While making contact with the carpet cleaners Det. Phillips observed a small zip
       lock baggie with cocaine in plain view resting on the kitchen table. Det. Phillips
       also observed a marijuana bong in the living room along with a digital scale in an
       open kitchen cabinet.

(emphasis added).    Morin alleges the affiant, Officer Molina, deliberately made a false or

misleading statement when he stated Morin was detained “at this location,” i.e., the apartment,

because he was actually “arrested 40 or 50 feet away from the apartment.”

       At the pretrial suppression hearing, the State presented the only witness to testify —

Officer Molina. It was through Officer Molina’s testimony that Morin alleges he established his

Franks claim by a preponderance of the evidence. Officer Molina testified he was asked to

establish surveillance at an apartment complex on June 24, 2007 in connection with a homicide

investigation involving a male suspect named “Spank.” Officer Molina stated he received

information concerning the whereabouts of the murder suspect (Morin) from a confidential

informant.

       During the course of the surveillance operation, between 3:30 p.m. and 4:00 p.m.,

officers observed Morin “coming down from the apartment” with Ruiz. Once Morin had “made

it down the stairway and was walking on the sidewalk,” officers made contact with him.

Officers and Morin engaged in a brief “scuffle,” which resulted in the officers detaining and

arresting Morin on several outstanding municipal court warrants.

       Several officers proceeded to enter the second floor apartment from which Morin had

emerged. Officer Molina testified that “[w]e had seen quite a bit of people in and out of the




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apartment” and “a lot of traffic.” According to the officer, “we weren’t sure whether there were

still other people inside . . . the apartment, so therefore we go inside the apartment, make sure

that somebody else is not there, either, number one, destroying evidence or, two, could possibly

pose a danger to us.” Officer Molina further stated:

       For sure we didn’t know if there was anybody else in that apartment that could
       have shot at us. They have an advantage of being up in an upper balcony, or just
       down below to the adjacent building. That was our concern. That’s why
       Detective Ripley and Detective Phillips went up in the apartment to make sure
       that there was nobody else in that apartment, and that was to prevent anybody or
       from us getting ambushed.

Officer Molina confirmed that he was close enough to the apartment at issue to have been hit by

a bullet fired from that particular location. The fact that Morin was a suspect in a murder

investigation increased Officer Molina’s level of concern about the possibility of another danger

inside the apartment.     When Officer Molina was questioned by defense counsel at the

suppression hearing about what he meant when he stated in the warrant affidavit that Morin was

detained “at this location,” the officer responded “[j]ust outside the apartment.”

       Officer Molina further stated they observed carpet cleaners at the suspect’s apartment

during the course of their surveillance operation. According to Officer Molina, “it was raining

frequently and heavily at times, so it was just weird to see a carpet cleaning crew working under

those conditions.” The officer confirmed he was concerned that the carpet cleaning crew was

potentially destroying evidence.

       Although Morin claims Officer Molina’s statement that Morin was detained “at this

location” was a false statement made with reckless disregard of the truth, there was no showing

during the suppression hearing that the officer’s statement was made with the type of knowledge,

intent, or recklessness as contemplated by Franks. Officer Molina was never asked during the

suppression hearing whether the statement in his affidavit was a false statement, a knowing or



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intentional misrepresentation, a statement made in reckless disregard for truth, or a mistake.

Rather, Officer Molina was simply asked about what he meant when he stated Morin was

detained “at this location.” Officer Molina clarified that it meant Morin was detained “[j]ust

outside the apartment.”

       Having reviewed the record and the applicable standards of review, we conclude Morin

failed to establish by a preponderance of the evidence that Officer Molina intentionally made a

false statement or one in reckless disregard for the truth in his search warrant affidavit. The trial

court, based upon the testimony it heard at the suppression hearing, could have reasonably

concluded that Officer Molina’s inclusion of the statement “at this location” in the warrant

affidavit was at best a general description of the apartment complex area, or at worst, an innocent

mistake on the part of the officer as opposed to an intentional or reckless misstatement. A

misstatement in an affidavit that is an innocent mistake or the result of simple negligence will not

render invalid the warrant based on it. Franks, 438 U.S. at 171. Accordingly, we hold the trial

court did not abuse its discretion in connection with Morin’s suppression motion and overrule his

second issue.

                                     MOTION FOR MISTRIAL

       In his third issue, Morin claims the trial court abused its discretion when it denied his

motion for a mistrial after a witness remarked that Morin’s tattoo was an insignia for a criminal

street gang. During Officer Chad Ripley’s testimony, the State asked Ripley to describe the

scene in a photograph identified as State’s Exhibit No. 24. Ripley replied as follows:

       We are looking at two pictures that were taped to the wall in one of the bedrooms.
       The picture on our left is of Stephanie, his girlfriend at the time. The picture on
       the right has got a Chuck E. Cheese border, so I guess Mr. Morin was standing in
       front of the mouse when he took that picture. He has got his arm up raised to
       show his Spurs Tattoo, which is an insignia for criminal street gang.




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       Defense counsel objected to the officer’s statement, complaining the answer concerned

extraneous conduct and violated the motion in limine.            The trial court sustained defense

counsel’s objection. Defense counsel moved for a mistrial, but the trial court denied the motion.

Morin did not ask the trial court to instruct the jury to disregard Officer Ripley’s statement

before (or after) seeking the mistrial.

       An instruction to disregard attempts to cure any harm or prejudice to the defendant

resulting from events that have already occurred. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.

App. 2004). “Where the prejudice is curable, an instruction eliminates the need for a mistrial,

thereby conserving the resources associated with beginning the trial process anew.” Id. The

preferred sequence of events to preserve error concerning objectionable material is as follows:

“(1) to object when it is possible, (2) to request an instruction to disregard if the prejudicial event

has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not

sufficient.” Id. When the defendant skips one part of the sequence and requests a mistrial, our

review is limited “to the question of whether the trial court erred in not taking the most serious

action of ending the trial.” Id. at 70. “[A]n event that could have been . . . cured by an

instruction to the jury will not lead [us] to reverse a judgment on appeal by the party who did not

request these lesser remedies in the trial court.” Id.

       Courts have routinely deemed instructions to disregard adequate to cure error where

witnesses have violated a motion in limine or referenced an extraneous matter. See Whitaker v.

State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998) (concluding instruction was sufficient to

cure any error in capital murder case when witness testified appellant “was physically and

mentally abusive towards her” and “beat her up”); Herrero v. State, 124 S.W.3d 827, 835 (Tex.

App.—Houston [14th Dist.] 2003, no pet.) (concluding instruction cured error in murder case




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when witness testified police promised him protection against appellant’s death threat if witness

testified); Martinez v. State, 844 S.W.2d 279, 284 (Tex. App.—San Antonio 1992, pet. ref’d)

(concluding instruction cured error in murder case when officer testified that appellant threatened

the intended target and shot at his house). In fact, courts have specifically held that instructions

to disregard are sufficient to cure any harm or prejudice resulting from an objectionable

statement concerning gangs or gang affiliation. Bridgewater v. State, 905 S.W.2d 349, 354 (Tex.

App.—Fort Worth 1995, no pet.); Beasley v. State, 864 S.W.2d 808, 812 (Tex. App.—Fort

Worth 1993), aff’d, 902 S.W.2d 452 (Tex. Crim. App. 1995). We believe that an appropriate

instruction to disregard could have cured any prejudice resulting from the “gang” remark by

Officer Ripley. Accordingly, the trial court did not abuse its discretion by denying the motion

for mistrial. Morin’s third issue is overruled.

                                           CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.



                                                    Catherine Stone, Chief Justice


DO NOT PUBLISH




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