                                                                              ACCEPTED
                                                                          06-14-00239-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     10/2/2015 2:01:22 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK


               IN THE COURT OF APPEALS FOR THE
            SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                         FILED IN
                                                  6th COURT OF APPEALS
                                                    TEXARKANA, TEXAS
MARK EUGENE ENGLE                                 10/2/2015 2:01:22 PM
   APPELLANT                 §                        DEBBIE AUTREY
                             §                            Clerk
    v.                       §     Nos.     06-14-00239-CR
                             §
THE STATE OF TEXAS,          §
  _t\PPELLEE                 §



                        STATE'S BRIEF


           ON APPEAL FROM THE 354th DISTRICT COURT
                      HUNT COUNTY, TEXAS
               TRIAL COURT CAUSE NUMBER 29,110
    THE HONORABLE RICHARD A. BEACOM, JR., JUDGE PRESIDING


                                 NOBLE D. WALKER, JR.
                                 District Attorney
                                 Hunt County, Texas


                                 STEVEN LILLEY
                                 Assistant District Attorney
                                 P.O. Box 441
                                 4th Floor Hunt County Courthouse
                                 Greenville, TX      75403
                                 (903) 408-4180
                                 FAX (903) 408-4296
                                 State Bar No. 24046293
                                         TABLE OF CONTENTS


TABLE OF CONTENTS ........................................................................................ 2


INDEX OF AUTHORITIES ..•................................................................................. 3


SUMMARY OF THE STATE'S ARGUMENT ........................................................ 5


ARUGUMENT ........................................................................................................&


PRAYER ..............................................................................................................17


CERTIFICATE OF SERVICE ..............................................................................17


CERTIFICATE OF COMPLIANCE ......................................................................18




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                                   INDEX OF AUTHORITIES
CASES
FEDERAL
Franks v. Delaware, 438 U.S. 154,98 S.Ct. 2674 (1978) .............................. 13-16
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983) ........................................ 10


TEXAS
Brown v. State, 115 S.W.3d 633
            -             -   ~-    ------


       (Tex. App. Waco 2003, no pet.) ................................................................... 9
Darcy v. State, 728 S.W.2d 772 (Tex. Grim. App. 1988) ............................... 14, 16
Gibbs v. State, 819 S.W.2d 821 (Tex.Crim.App.1991 ).......................................... 9
Hennessy v. State, 660 S.W.2d 87 (Tex. Grim. App. 1983) ..................... 10, 14, 16
Marquez v. State, 725 S.W.2d 217 (Tex.Crim.App.1987) .................................... 10
Melton v. State, 750 S.W.2d 281
       (Tex. App. Waco 1988, no pet.) ................................................................. 14
State v. Duarte, 389 S.W.3d 349 (Tex. Grim. App. 2012) .................................... 10
State v. Huddleston, 387 S.W.3d 33
       (Tex. App. Texarkana 2012, pet. ref'd) ........................................................ 9




STATUTES
Texas Code of Grim. Pro. Art. 18.01 (b) .................................................................9




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                     IN THE COURT OF APPEALS FOR THE
                 SIXTH DISTRICT OF TEXAS AT TEXARKANA




MARK EUGENE ENGLE
    APPELLANT                             §
                                          §
      v.                                  §       No. 06-14-00239-CR
                                          §
THE STATE OF TEXAS,                       §
    APPELLEE                              §




                                  STATE'S BRIEF




TO THE HONORABLE COURT OF APPEALS:


NOW COMES the STATE OF TEXAS, Appellee, in this appeal from Cause No.
29,110 the 354th Judicial District Court in and for Hunt County, Texas, Honorable
Judge Richard A. Beacom, Jr., Presiding, now before the Sixth District Court of
Appeals, and respectfully submits this its brief to the Sixth District Court of
Appeals in support of the judgment of conviction and sentence in the court below.




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                            SUMMARY OF ARGUMENT


      Appellant alleges a single point of error which the state will address as two

separate claims of error by the trial court.

      In his first point of error, Appellant claims that the trial court erred in

denying his motion to suppress because the four corner of the search warrant

affidavit failed allege sufficient facts and circumstances giving rise toprobable

cause. Appellant forms this argument around the theory that the victim named in

the search warrant should be treated similarly to a confidential informant for

purposes of examining the sufficiency of the search warrant affidavit. The victim,

however, is not an anonymous or confidential informant and should not be

treated as such. Jane Doe met face to face with members of law enforcement

and explained is detail her activities and later her victimization at the hands of

Appellant. She expected no quid pro quo for her information. Despite the fact

that she was not well known to members of local law enforcement, she made no

attempt to conceal her identity from them. After speaking with law enforcement,

Jane Doe met with a member of the Northeast Texas Crisis Center and more

fully explained the sexual assault against her. In addition, members of law

enforcement were able to corroborate certain facts that Jane Doe offered to

police. For these reasons, Jane Doe was certainly not a confidential or

anonymous informant and her statements should be considered inherently

reliable. Therefore, the statements of Jane Doe, coupled with other information

provided in the affidavit provided the magistrate with the probable cause required

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to believe that evidence of a crime would be found at the locations Detective

White requested be searched.

       In his second point of error, Appellant claims that the trial court erred by

denying his motion to suppress on the grounds that the search warrant violated

the tenants of Franks v. Delaware. Appellant fails in this argument for several

reasons. First, Appellant does not show that a single statement in the search

warrant affidavit were factually false. Secondly, Appellant's allegations leveled

against Detective White amount to mere negligence on her part to not more fully

investigate the allegations of Jane Doe before requesting a search warrant.

Alleged negligence on the part of an affiant is insufficient to give rise to a Franks

violation. Finally, Appellant also extends his Franks argument to allege

deliberately false or reckless statements by Jane Doe. A Franks violation only

occurs when the affiant herself makes a false statement in the search warrant

affidavit. For these reasons, Appellant claim that the trial court erred in failing to

find a Franks violation should be overruled.



                                      ARGUMENT


                                            I.
    DID THE AFFIDAVIT FOR SEARCH WARRANT ARTICULATE PROBABLE
                      CAUSE WITHIN ITS FOUR CORNERS?


       In his first point of error, Appellant alleges that the trial court erred in

finding that probable cause existed within the four corners of the affidavit for


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search warrant drafted by Detective Felicia White.

      On December 7, 2012 Detective White swore out an affidavit to request

that a search warrant be issued to search a motel room and a white two door

vehicle for evidence of a sexual assault. The affidavit relies heavily upon a report

drafted by Corporal Victor Petrea of the Greenville Police Department who spoke

in person with Jane Doe 2012-26498 "Jane Doe." This name and number

combination is identified in the search warrant affidavit as a pseudonym name.

The affidavit describes Corporal Petrea's report in detail, including a detailed

description that Jane Doe gave of her activities beginning at 1O:OOpm on

December 6, 2012. Jane Doe informed Corporal Petrea that she met a man

named Mark that evening and eventually was alone with him at a truck stop in

Hunt County, Texas. Jane Doe described Mark as driving a white Saturn vehicle

two door car with "suicide type doors." Jane Doe described that she and Mark

drove to various places where Mark sold narcotics to individuals. Jane Doe

alleged that at one point during their trip, Mark bound Jane Doe and assaulted

her. Eventually, Mark drove the two of them to a Motel 6 in Greenville, Texas

where he rented a room which Jane Doe recalled to be room 123. It was in this

room that Jane Doe states that she was sexually assaulted for "several hours."

Jane Doe described to Corporal a separate incident of sexual assault after the

first one back in the same hotel room. After the second sexual assault, Mark

drove the two of them around town and eventually, Jane Doe seized an

opportunity to flee from the vehicle while they were stopped at a stop sign. Jane


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Doe stated that she called a family friend who came and picked her up. Jane

Doe stated that the friend took her to a local hospital and then to the Greenville

Police Department.

      The affidavit goes on to explain that Jane Doe was interviewed by Holly

Robinson of the Northeast Texas Crisis Center. During this interview, Jane Doe

more fully explained the sexual assaults against her including the manner and

means that Appellant used to commit the assaults.

      Detective White's affidavit further states that she spoke with Sergeant

Steve Walden of the Greenville Police Department. Sgt. Walden informed

Detective White that a Mark Engle had rented room number 123 at the

Greenville, Texas Motel 6 on December 7, 2012 at 3:44a.m. In the parking lot of

the Motel 6, there was a white 2000 year Saturn two door car which Affiant

learned was registered to Mark Engle. When Detective White reviewed a

criminal history report of Mark Engle, she learned that he had been arrested in

the past for both possession and manufacturing or delivery of a controlled

substance.

      Based upon these facts and others as fully laid out in the affidavit,

Detective White requested that a search warrant be issued for hotel room 123

and the white 2000 Saturn two door vehicle registered to Mark Engle for items

utilized in the offense of Aggravated Sexual Assault. Specifically, Detective

White listed bodily fluids, clothing items, wash cloths, syringes,

methamphetamines, video cameras, cellular telephones, "SIM" cards for cellular


8
telephones, computers, and items utilized for bindings as being potential

evidence in either the hotel room or the vehicle.

      Based upon the affidavit, a district judge signed the search warrant at

6:28p.m. on December 7, 2012.

      A request for a search warrant must be accompanied by a affidavit with

sufficient information and detail showing probable cause that evidence will be

found in the places requested to be searched or the things to be seized. Texas

Code ofCrim. Pro. Art. 18.01(b). The affidavit is to be reviewed in its totality

using common sense, hyper technical rules of interpretation should be avoided.

Brown v. State, 115 S.W.3d 633, 638 (Tex. App. Waco 2003, no pet.) citing

Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991 ).

      In many circumstances, the affiant requesting a search warrant will include

in the affidavit the statements of private citizens who were witnesses or victims of

the crimes giving rise to the warrant request. Courts have applied different

standards to witness's information in a search warrant depending on whether the

witness is a government informant or simply a citizen who provides information

without any expectation of payment or preferential treatment. The information

provided by an informant is not to be considered inherently reliable. Such

statements must be buttressed with additional information within the four corners

of the affidavit showing that the person providing the information is reliable.

State v. Huddleston, 387 S.W.3d 33, 37 (Tex. App. Texarkana 2012, pet. ref'd).

There are not set requirements that must be met in the affidavit to show the


9
reliability of an informant, rather the magistrate and reviewing courts must

examine the totality of the circumstances provided in the affidavit. Hennessy v.

State, 660 S.W.2d 87, 89-90 (Tex. Grim. App. 1983), expressly following Illinois

v. Gates, 462 U.S. 213, 103 S.Gt. 2317, 76 L.Ed.2d 527 (1983).

      In contrast, the statements of a citizen witness are considered inherently

reliable and therefore a magistrate rely on such statements in and of themselves

in determining probable cause. "The citizen-informer is presumed to speak with

the voice of honesty and accuracy. The criminal snitch who is making a quid pro

quo trade does not enjoy any such presumption; his motive is entirely self-

serving." State v. Duarte, 389 S.W.3d 349, 357-58 (Tex. Grim. App. 2012). No

evidence is required to "prove up" the reliability of a citizen witness.

      "Appellee alleges that the affidavit must contain some facts to show

      that the peace officers and other witnesses who provided affiant with

      the substantive information contained in the affidavit are credible.

      This argument is entirely without merit. While it is true that such facts

      must be included when the information contained in the affidavit is

      given by a confidential informant, as a matter of constitutional law an

      ordinary citizen as a witness in a case or a police officer is presumed

      to be reliable and no special showings are required."

      Marquez v. State, 725 S.W.2d 217, 232 (Tex.Grim.App.1987).

      It is no doubt for the reasons outlined above that Appellant attempts to cast

Jane Doe an informant rather than a victim/witness of a crime. "Based on these


10
facts Jane Doe acted similar to a confidential informant." Appellant's Brief at 13.

Unfortunately for Appellant, this is simply not true. The information provided in

the affidavit clearly shows that Jane Doe was a witness/victim and not a

confidential or anonymous informant. According to the four corners of the search

warrant affidavit, Jane Doe was brought in person to the Greenville Police

Department to report her sexual assault at the hands of a man named Mark.

Jane Doe spoke with Corporal Victor Petrea at length regarding the facts and

circumstances of her sexual assault. Jane Doe is described in the affidavit as

being visibly upset. Though Jane Doe could not initially go into detail about her

sexual assault, Jane Doe did give details of her assault to Holly Robinson of the

Crisis Center of Northeast Texas. These details were recounted in the affidavit

by Detective White.

      Even though it is not required, Detective White did include pieces of

information that validated several facts within Jane Doe's account. Jane Doe

accurately described the white Saturn two door vehicle registered to Appellant.

Jane Doe also accurately recalled the motel and specific room number which

Appellant rented on December 7. Jane Doe described Mark as being a white

male of forty years old. Appellant turned out to be a forty four year old white

male. In addition, Jane Doe described Mark as being both a user of

methamphetamine and a dealer. Detective White included in her affidavit that

Appellant had arrests for both possession of a controlled substance, and

manufacturing/delivery of a controlled substance.


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       Though Jane Doe was not known to the members of the Greenville Police

Department, her identity was no secret. The affidavit does not state that Jane

Doe requested or expected any special treatment or payment whatsoever for her

statement. To the contrary, Jane Doe presented to the Greenville Police

Department simply as a victim of a very violent, vicious crime. Under the facts

outlined above, it is clear that Jane Doe is a citizen who's statement is to be

considered inherently reliable.

       Appellant additionally complains that Holly Robinson's credentials as the

Executive Director of the Crisis Center of Northeast Texas were not fully

developed in the affidavit. However Ms. Robinson was quite obviously a citizen

witness and not a government informer in need of additional facts proving her

credibility.

       More inexplicably, Appellant complains that the sex acts perpetrated on

Jane Doe were never expressly described as being against her consent. This

ignores Corporal Petrea's report, after speaking directly in person with Jane Doe,

which states that Jane Doe was "sexually assaulted" in the motel room by Mark.

In addition, Holly Robinson repeated to Detective White that Jane Doe recounted

her "sexual assault" as including penetration of her mouth, vagina and anus with

Appellant's penis while she was restrained the entire time. These allegations are

more than sufficient to show that the sexual acts done to Jane Doe were without

her consent.

       Based upon Jane Doe's status as a citizen witness/victim of crime, her


12
statements recounted in the affidavit are to be considered inherently reliable. As

such, they require no additional facts establishing Jane Doe's reliability. Even

so, Detective White included numerous facts in the affidavit verifying facts given

to law enforcement by Jane Doe. With this in mind, Jane Doe's statements to

law enforcement, coupled with the information by Holly Robinson are more than

sufficient to establish probable cause that evidence of a sexual assault may be

present in either the motel room 123 and/or Appellant's white Saturn two door

vehicle. Therefore, the trial court did not err in overruling Appellant's motion to

suppress the evidence based upon a lack of probable cause. As a result,

Appellant's first point of error should be overruled.



                                          II.
 DID THE AFFIANT COMMIT VIOLATIONS UNDER FRANKS V. DELAWARE
     REDURING THE SEARCH WARRANT AFFIDAVIT INSUFFICIENT TO
                        ESTABLISH PROBABLE CAUSE?


      In his second point of error, Appellant complains that Detective White and

other officers had a "reckless disregard for the truth" which resulted in a violation

of the tenants of Franks v. Delaware.

      The Supreme Court in Franks provided criminal defendants a method to

challenge a search warrant if the affiant made knowingly false statements or

included false statements with reckless disregard for whether the statements

were true or not. See generally, Franks v. Delaware, 438 U.S. 154, 98 S.Ct.

2674 (1978). A defendant who desires to challenge a search warrant on these

13
grounds must make an initial showing that there exists specific statements within

the statement that the affiant knew were false or had reckless disregard for their

truthfulness. The defendant must support these allegations by way of affidavit or

otherwise reliable statements. Finally, the defendant must show that without the

complained of statements, probable cause would not exist within the remaining

four corners of the affidavit. If a defendant can meet this initial showing, he will

then be entitled to a hearing on the matter to fully investigate the matter and

request that the judge omit the offending statements and decide whether

probable cause exists. Franks, 438 U.S. at 171-72, 98 S.Gt. at 2684-85.

Allegations amounting to mere negligence on the part of the affiant or law

enforcement in checking facts provided to them or recording those facts will not

justify a hearing or subsequent removing of the offending statements in the

affidavit. Darcy v. State, 728 S.W.2d 772, 783 (Tex. Grim. App. 1988).

      The alleged false statements complained of in a Franks hearing must be

those of the affiant who requested the search warrant, not a third party witness or

government informant. Hennessey v. State, 660 S.W.2d 87, 92 (Tex. Grim. App.

1983); Melton v. State, 750 S.W.2d 281, 284-85 (Tex. App. Waco 1988, no pet.).

      Appellant complains that the affiant, Detective White, had a reckless

disregard for the truth when she allegedly failed to investigate more fully the

history and truthfulness of Jane Doe, who she did not know.                He further

complains that neither Detective White nor any other law enforcement officer was

able to corroborate "anything from before the affidavit was made." Appellant's


14
brief at 14.

      As a threshold matter, the State points out that though Appellant did not

observe the formal steps outlined in Franks v. Delaware to be granted a hearing

on the matter, the trial court nevertheless granted a hearing on Appellant's

motion to suppress and heard evidence that would be conceivably relevant

during a Franks hearing.       Therefore, a de facto Franks hearing took place.

Whether Appellant should have been granted such a hearing is immaterial,

however, as his claim under Franks fails for several reasons.

       First, the entire Franks line of cases rest on one basic assumption: that

the complained of statement in the affidavit is actually false. Though this need

only be proved by a preponderance of the evidence, it must still be shown by the

defendant.

               "In the event that at that hearing the allegation of perjury or

       reckless    disregard   is    established   by   the   defendant   by   a

       preponderance of the evidence, and, with the affidavit's false

       material set to one side, the affidavit's remaining content is

       insufficient to establish probable cause, the search warrant must be

       voided and the fruits of the search excluded to the same extent as if

       probable cause was lacking on the face of the affidavit."

       Franks, 438 U.S. at          156, 98 S.Ct. at 2676.     Appellant in this case

complains that Detective White and her law enforcement colleagues were

reckless in that they did not more fully investigate the claims of Jane Doe.


15
Appellant has not, however, made a claim that any statement in the search

warrant affidavit was factually false.    Without such a claim with support in the

record, Appellant's second point of error should be overruled.

         The second reason that Appellant's Franks argument should fail is that

Appellant seems to be alleging that Detective White was negligent in failing to

check more of the facts given to her by Jane Doe through law enforcement. As

stated above, such allegations of negligence do not give rise to a Franks

violation. Darcy, supra, 728 S.W.2d at 782- 83.

         The nature of Appellant's Franks argument appears to be an attempt to

attack the veracity of Jane Doe and not Detective White. If this is true, it belies

the third reason Appellant's Franks argument should be overruled.           As stated

above, the alleged false statements subject to a Franks hearing must be those of

the affiant, not a third party witness or informant. Hennessey, supra, 660 S.W.2d

at 82.

         For at least the three reasons outlined above, Appellant's point of error

under Franks v. Delaware should be overruled.




16
                                    PRAYER
      Appellant's trial was without prejudicial or fundamental error. The State
prays that Appellant's conviction and sentence be affirmed.


                                            Respectfully submitted,




                                           · Assistant District Attorney
                                             P.O. Box 441
                                             4th Floor Hunt County Courthouse
                                             Greenville, TX 75403
                                             State Bar No. 24046293
                                             (903) 408-4180
                                             FAX (903) 408-4296




                            CERTIFICATE OF SERVICE
      A true copy of the State's brief has been deliv r tl to Appellant, Jason

Duff, on October 2, 2015.                          ~           --/        ~

                                            Assistant District Attorney




17
     CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT


      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney of record certifies that Appellees Brief contains 13-point
typeface of the body of the brief, 2,967 words, excluding those words identified
as not being counted in appellate rule of procedure 9.4(i)(1 ), and was prepared
on Microsoft Word 2007.




Steven Lilley
Attorney for the State




18
