      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00192-CR



                                Jose Arturo Ramirez, Appellant

                                                 v.

                                  The State of Texas, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
      NO. B-05-0677-S, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Jose Arturo Ramirez appeals his conviction for possession with intent

to deliver a controlled substance, to wit: Methamphetamine, in an amount by aggregate weight of

four (4) grams or more but less than two hundred (200) grams including any adulterants and

dilutants. See Tex. Health & Safety Code Ann. § 481.112(d) (West 2003). After his pretrial motion

to suppress evidence was overruled by Judge Jay Weatherby, appellant, on March 5, 2007, waived

trial by jury, and entered a guilty plea to the indictment before Judge Thomas J. Gossett. There was

no plea bargain. Judge Gossett assessed punishment at ten (10) years’ imprisonment. Following the

imposition of sentence, appellant gave notice of appeal.

               In a sole issue on appeal, appellant Ramirez contends that at the suppression hearing,

the trial court erred in overruling his Franks v. Delaware, 438 U.S. 154 (1978) claim as to

the veracity of the search warrant. On appeal appellant does not advance any contention that the

affidavit supporting the combination arrest and search warrant contained within its four corners
insufficient probable cause information in violation of the federal and state constitutions provisions.1

This type of contention is entirely different from a challenge under Franks to the truthfulness of a

warrant affidavit and whether the affiant made knowing misrepresentations to establish probable

cause. Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App. 2003). When the defendant

challenges the warrant affidavit on the ground that it contains a known falsehood, the trial court is

not limited to the four corners of the affidavit. Id. As appellant’s sole issue is his Franks claim, we

first review the applicable law.

                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 fake statement is necessary to
        the finding of probable cause, the Fourth Amendment requires that a hearing be held
        at the defendant’s request.


Id. 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. Franks, 438 U.S. at 171. The Franks opinion explained:


        To mandate an evidentiary hearing, the challenger’s attack must be more than
        conclusory and must be supported by more than a mere desire to cross-examine.
        There must be allegations of deliberate falsehood or of reckless disregard for the
        truth, and those allegations must be accompanied by an offer of proof. They should
        point out specifically the portion of the warrant affidavit that is claimed to be false;
        and they should be accompanied by a statement of supporting reasons. Affidavits or


        1
         See U.S. Const. Amends. IV, XIV; Tex. Const. art. I, § 9; see also Jones v. State,
833 S.W.2d 118, 123 (Tex. Crim. App. 1992).

                                                   2
          sworn or otherwise reliable statements of witnesses should be furnished, or their
          absence satisfactorily explained. Allegations of negligence or innocent mistake are
          insufficient.


Id.

                 In Cates, the Texas Court of Criminal Appeals discussed the three-part test for

obtaining an evidentiary hearing under Franks. The defendant must:


          (1)    Allege 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 the issuance of
                 the warrant.


Cates, 120 S.W.3d at 356 (quoting Ramsey v. State, 579 S.W.2d 920, 922-23 (Tex. Crim. App.

1979)).

                 These specific 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).2


          2
           The importance of the three-pronged substantial preliminary showing is reflected by the
opinions in Harris v. State, 227 S.W.3d 83 (Tex. Crim. App. 2007) and Cates v. State, 120 S.W.3d
352 (Tex. Crim. App. 2003). In Cates, the court held that the trial court abused its discretion when
it refused to allow defense witnesses to testify at a Franks evidentiary hearing after the defendant
had made a substantial preliminary showing of falsity and the State had been permitted to
offer testimony as to the search warrant affidavit’s accuracy. 120 S.W.3d at 355, 359. In Harris,
the court held that a defendant fails to preserve for appellate review a Franks claim under
the Fourth Amendment when he does not make a substantial preliminary showing as required.
227 S.W.3d at 85-86.

                                                   3
                Once the defendant establishes the requisites of a substantial preliminary showing

required to obtain a full Franks evidentiary hearing, he has the burden of establishing at that hearing

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

Franks, 438 U.S. at 155-56; Harris, 227 S.W.3d at 85; Jordan v. State, 271 S.W.3d 850, 854

(Tex. App.—Amarillo 2008, no pet.). At this full Franks hearing, a defendant may present evidence

that goes beyond the four corners of the affidavit underlying the search warrant. Franks, 438 U.S.

at 155-56; Jordan, 271 S.W.3d at 854. If, after the hearing, 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; Jordan, 271 S.W.3d at 854. If the remainder of the affidavit is not sufficient to

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

warrant is excluded. Franks, 438 U.S. at 156; Harris, 227 S.W.3d at 85.

                A Franks claim is not mandated to be presented pretrial, but may be timely raised

during the trial itself as an objection to the admissibility of evidence. In the Franks case, the

violation of the Fourth Amendment claim was presented as an amendment to a motion to suppress

evidence. 438 U.S. at 157, 158. In Texas, the disposition of a Franks claim is often superimposed

on our pretrial motion to suppress evidence practice. See Tex. Code Crim. Proc. Ann. art. 28.01(6)

(West 2006). The two procedures have their differences and do not always neatly dovetail.3




       3
           In Cates, the court stated:

       Franks itself states that a person who has made a substantial preliminary
       showing of falsity in the affidavit is entitled to an “evidentiary hearing.” That phrase,
       “evidentiary hearing,” normally means a live hearing in court with witnesses on the
       witness stand. But we need not today decide whether a Franks evidentiary hearing
       must always be conducted with live witnesses because, in this case, the trial judge did

                                                  4
                  A pretrial motion to suppress evidence is permitted within the trial court’s discretion.

See id.       It is nothing more than a specialized objection to the admissibility of evidence.

Galitz v. State, 617 S.W.2d 949, 952 (Tex. Crim. App. 1981). It must meet the specificity

requirements of an objection. See Tex. R. App. P. 33.1(a)(1)(A); Carroll v. State, 911 S.W.2d

210, 218 (Tex. App.—Austin 1995, no pet.); Mayfield v. State, 800 S.W.2d 932, 935

(Tex. App.—San Antonio 1990, no pet.).

                  Appellant filed a pretrial motion to suppress evidence. It contained several boilerplate

paragraphs with conclusory allegations attacking the lack of probable cause on the face of the

affidavit underlying the search warrant.4 In addition, section 6(a) of the suppression motion alleged:


          The search warrant was illegally issued because the issuing magistrate was misled by
          information in the affidavit that the affiant-officer knew was false or would have
          known was false except for his reckless disregard for the truth.


                  The allegations are conclusory and do not specify what information in the affidavit

is false, and it does not alert the trial court by citing Franks. These allegations alone fall far

short of what is required to make a substantial preliminary showing under Franks. See Harris,

227 S.W.3d at 85.


          not allow appellant the opportunity to offer evidence to prove his Franks claim in any
          of the ways set out in article 28.01, § 1(6). Accordingly, by denying the defendant
          the opportunity to present testimony or any other evidence to prove his specific
          allegations of falsity, the trial court denied appellant his right to a full Franks
          hearing.

120 S.W.3d at 359 (citations omitted).
          4
          These allegations, never pursued by appellant, appear to be in procedural default as far
as preserving error on appeal. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005);
Martinez v. State, 17 S.W.3d 677, 682-83 (Tex. Crim. App. 2000).

                                                     5
               On October 17, 2006, the day before the suppression hearing, appellant filed

a memorandum of law brief. In part it was just that. Appellant, however, used the balance of the

memorandum in an attempt to make a substantial preliminary showing as required by Franks that a

false statement or statements had been used in the search warrant affidavit. Appellant alleged in the

memorandum that the officer-affiant had deliberately falsified the name of the “suspected party” in

possession of methamphetamine and in charge of the premises to be searched as “Rodolfo Bocanegra

Ramirez,” who in fact was appellant’s father. As an offer of proof appellant attached copies of

the search warrant and its affidavit, an updated police report, and appellant’s affidavit. Appellant

swore that his name was Jose Arturo Ramirez whose date of birth was “03/20/72,” that he had been

a tenant for two months at the location where the search was conducted, and that his father,

Rodolfo Bocanegra Ramirez, had never been present at appellant’s apartment prior to the execution

of the search warrant. In concluding his “memorandum,” appellant claimed that the removal from

the affidavit of the false statements or those made in the reckless disregard for the truth would leave

the affidavit lacking probable cause and void the warrant. Here, appellant attempted to use the

“memorandum” as a “Bill of Exception” was used in Cates, 120 S.W.3d at 356.

               At the commencement of the pretrial suppression hearing, appellant alerted the

trial court to the fact that evidence would be offered going beyond the four corners of the affidavit

supporting the search warrant in order to show a false statement therein. The trial court responded,

“I have reached your memorandum of law.” The prosecutor acknowledged that appellant was

proceeding under Franks.




                                                  6
               By-passing the normal flow of the burden of proof at a regular pretrial suppression

hearing5 and a defendant’s burden by a preponderance of evidence under a Franks claim, appellant

offered the State the opportunity to take the lead and introduce the search warrant and its supporting

affidavit. The State agreed and did so. In the process, the State presented the only witnesses to

testify—two Texas Department of Public Safety officers. It was from these two witnesses that

appellant sought to establish his Franks claim by a preponderance of the evidence. During the cross-

examination of the first officer, Byron Martin, the State objected to appellant going outside the four

corners of the affidavit in his interrogation. Appellant called attention to his memorandum of law

and its attachments. The trial court permitted the interrogation, signaling that it was satisfied that

appellant had made his substantial preliminary showing required by Franks.6 Reference to

appellant’s affidavit attached to the memorandum of law was made by defense counsel, but it was

never introduced into evidence nor was it recited or read into the record.

               Sergeant-Investigator Jeffery Todd Cummins of the Texas Department of Public

Safety testified that he had been stationed in Tom Green County and that on October 13, 2004, he



       5
         See Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); Bishop v. State,
85 S.W.3d 819, 822 (Tex. Crim. App. 2002); Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim.
App. 1986).
       6
           In Jordan v. State, 271 S.W.3d 850 (Tex. App.—Amarillo 2008, no pet.), it was unclear
whether the trial court required the defendant to make a substantial preliminary showing as required
by Franks. There was a hearing where the trial court required the State to develop from the officer-
affiant all the facts leading up to the issuance of the search warrant and allowed extensive cross-
examination of the affiant about the same subject. The court then stated:

       We will assume, for purposes of this opinion, that appellant made the requisite
       preliminary showing and that the trial court conducted a full Franks hearing.

Id. at 853. Cf. Harris, 227 S.W.3d at 85.

                                                  7
became the lead investigator into activities involving methamphetamine possession. On that date,

he made contact with a confidential informer (hereinafter CI) who had indicated that he could

purchase methamphetamine from a subject at 1300 Millspaugh in San Angelo. Sergeant Cummins

set up a controlled buy by giving marked money to the CI and searching the CI and his vehicle for

contraband. The CI was followed by Sergeant Cummins and other officers to the address in

question. They saw the CI and suspect enter the house. The CI later met the officers at another

location with a substance later shown to be methamphetamine. The CI stated the suspect’s nickname

was “Pepe.” Sergeant Cummins checked the utility records at 1300 Millspaugh and the registration

of a vehicle parked at the address. He concluded that the suspect was Rodolfo Bocanegra Ramirez

whose date of birth was “05/18/51.” Thereafter, Sergeant Cummins was transferred to Amarillo.

He left the record of his investigation in San Angelo.

               Texas Department of Public Safety Sergeant-Investigator Byron Martin testified

that he continued the investigation in San Angelo in November, 2004. He contacted the same CI

used by Cummins, who informed Martin that the suspect, Pepe Ramirez, had moved, and now lived

at an apartment complex—“The Cliff House” at 1820 South Harrison Street apartment No. 61 in

San Angelo. From information gathered by Sergeant Cummins, Sergeant Martin believed that

the suspect was Rodolfo Bocanegra Ramirez. He decided to set up another controlled buy on

November 29, 2004. Again, the CI and his vehicle were searched to ensure that no contraband was

available to the CI. The CI was then given marked money. Sergeant Martin and his surveillance

team followed the CI and observed him and the suspect enter the described apartment No. 61. When

the CI left the apartment, he met Sergeant Martin at a different location where he produced the

substance purchased.

                                                 8
               On December 1, 2004, Sergeant Martin obtained a search warrant based on

his affidavit, alleging, inter alia, that Rodolfo Bocanegra Ramirez, “date of birth 05/18/51,” was

“the suspected party” in charge of the described apartment No. 61, and in possession of

methamphetamine. The affidavit further alleged that the affiant-Martin had received information

from a CI, who had given information on several occasions about controlled substances that proved

true and correct, and had led to the seizure of contraband. The affidavit further alleged that the CI

had correctly identified methamphetamine in the affiant’s presence which was confirmed by

the affiant and field testing; and that the affiant had seen the CI enter apartment No. 61 and return

with the report that he had seen additional methamphetamine in the apartment in possession of the

suspect Ramirez.

               The search warrant authorized the search of the described apartment No. 61, the

seizure of the methamphetamine, the arrest and search of “any people occupying and/or controlling

said residence” and to bring before the court “all of the suspected parties.”

               On December 2, 2004, the search warrant was executed at the described premises.

Appellant, Jose Arturo Ramirez, date of birth “03/20/72,” was the only person present at the time.

Methamphetamine in the amount of approximately 105 grams was found in the apartment along with

over $3,571, some of which was marked money previously used.

               Sergeant Martin testified that he had no reason to believe the name of the “suspected

party” in the affidavit was incorrect. He did not learn of appellant’s name until the time of the

execution of the search warrant. He then learned that appellant was the son of Rodolfo Bocanegra

Ramirez. He acknowledged that he had relied upon Sergeant Cummins’s investigation and the CI’s

information that Pepe Ramirez had moved to a new address. Sergeant Martin admitted that he had

                                                 9
not checked to see in whose name the utilities in apartment No. 61 had been registered nor had he

checked the registration of motor vehicles parked near the described apartment No. 61. When asked,

Sergeant Martin agreed that he had not conferred with the manager of the apartment complex about

the tenant in apartment No. 61, but stated that these apartment managers are often involved in

narcotics trafficking themselves. Sergeant Martin stated that his reliance upon the past investigation

was “sloppy” police work to an extent.

               Appellant did not call any witnesses. Appellant’s affidavit was mentioned but it

was never introduced into evidence. Even if it had been, it did not contradict the testimony of

the State’s two witnesses. Appellant argues that Sergeant Martin saw the CI and the suspect enter

apartment No. 61 prior to the drafting of the affidavit and the officer should have observed the

difference in age between the suspect with the CI and the known age of Rodolfo Bocanegra Ramirez

as reflected by the earlier investigation. This issue was not fully explored by the testimony to

establish Sergeant Martin’s position of surveillance nor the clothing worn by the suspect entering

the apartment with the CI.

               After the arguments of counsel at the hearing, the trial court overruled the motion to

suppress evidence. The trial court stated that there was no disagreement among the parties as to the

search warrant being “proper in form in all the necessary prerequisites” except for the claimed

misrepresentation in the supporting affidavit. The trial court stated that the name of the “suspected

party” was incorrect but it was unclear that Sergeant Martin knew that the name was “false,” and,

in fact, the evidence suggested the opposite. No written findings of fact or conclusions of law were

made, and none were requested.




                                                 10
               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); Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980);

see generally Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). The trial court is free

to believe or disbelieve all or any part of a witness’s testimony even if the testimony is controverted.

State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). In reviewing the trial court’s decision,

we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.

App. 1990).

               We generally review a trial court’s ruling on a pretrial motion to suppress evidence

for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Balentine

v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). The trial court’s ruling should be upheld

so long as it is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372,

390 (Tex. Crim. App. 1990). When we review a trial court’s ruling on a motion to suppress, we

give great deference to the trial 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; Guzman v. State, 955 S.W.2d 85, 88-89

(Tex. Crim. App. 1997).7




       7
          For a more detailed discussion of the standard of review, see Amador, 221 S.W.3d at 673;
State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); Ford v. State, 158 S.W.3d 488, 493
(Tex. Crim. App. 2005).

                                                  11
                The testimony of the two officers at the suppression hearing was essentially

undisputed. Sergeant Martin admitted that an incorrect name was used on the affidavit as the

“suspected party,” but he denied that there was a deliberate misrepresentation in the affidavit. He

did not know appellant’s name until the search warrant was executed. He had relied, in drafting

the affidavit, upon Sergeant Cummins’s investigation report and a conversation with the CI. By

the testimony of the two State’s witnesses, did appellant sustain his burden of proof on his

Franks claim?

                The Fourth Amendment demands a factual showing in the search warrant affidavit

to comprise probable cause, thus the obvious assumption is that a truthful showing will be made.

See Franks, 438 U.S. at 164-65; Dancy v. State, 728 S.W.2d 772, 780-81 (Tex. Crim. App. 1987).

Quoting from Judge Frankel’s opinion in United States v. Halsey, 257 F. Supp. 1002, 1005

(S.D.N.Y. 1966), the Franks court stated:


                This does not mean “truthful” in the sense that every fact recited in the
                warrant affidavit is necessarily correct, for probable cause may be founded
                upon hearsay and upon information received from informants, as well as
                upon information within the affiant’s own knowledge that sometimes must
                be garnered hastily. But surely it is to be “truthful” in the sense that the
                information put forth is believed and appropriately accepted by the affiant
                as true.


Franks, 438 U.S. at 165.

                Further, if the statement or statements in the search warrant affidavit which are

claimed to be false or made in reckless disregard for the truth constitute an instance where the police

have been merely negligent in checking or recording the facts relevant to a probable cause

determination, it is beyond the pale of Franks. Dancy, 728 S.W.2d at 782.

                                                  12
               Having reviewed the record of the hearing, and applying the standard of review, we

find that the trial court did not abuse its discretion in overruling the suppression motion relating

to appellant’s Franks claim. Appellant failed to establish by a preponderance of the evidence that

the affiant Martin intentionally made a false statement or one in reckless disregard for the truth in

the search warrant affidavit. Id.; Blocker v. State, 264 S.W.3d 356, 360 (Tex. App.—Waco 2008,

no pet.). The sole point of error is overruled.

               The judgment is affirmed.




                                              __________________________________________

                                              John F. Onion, Jr., Justice

Before Justices Patterson, Henson and Onion*

Affirmed

Filed: November 5, 2009

Do Not Publish




* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 2005).




                                                  13
