      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00764-CR



                                   Enrico Valdez, Appellant

                                                v.

                                  The State of Texas, Appellee




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
     NO. A-01-0737-S, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Enrico Valdez appeals his conviction of aggravated assault with a deadly weapon

after a bench trial. See Tex. Pen. Code Ann. § 22.02(a)(2) (West 2003). The district court assessed

punishment at seventeen years in prison. In one point of error, appellant challenges the district

court’s denial of his motion to suppress evidence seized pursuant to a search warrant that he

contends was issued without probable cause. Because we find the district court did not abuse its

discretion in denying the motion, we affirm the judgment of conviction.


                                        BACKGROUND

               On June 8, 2001, sixteen-year-old Timothy Ruiz and his friend were walking past the

Santa Fe Junction Motor Inn in San Angelo when they encountered appellant, an acquaintance,

coming out of one of the rooms. Appellant asked the boys to help him carry ice into his motel room.
Once inside the room, appellant asked the boys to roll some marihuana joints. After engaging in a

lengthy and angry telephone conversation, appellant taunted the boys with a gun and then shot Ruiz

in the head. Ruiz survived but lost most of his vision. Appellant was indicted on a charge of

aggravated assault with a deadly weapon.

                On August 5, 2002, appellant filed a motion to suppress evidence, challenging the

seizure pursuant to a search warrant of a handgun, a shotgun, and ammunition from his home on

North Jackson Street in San Angelo. In support of the motion, appellant urged only that the evidence

was seized pursuant to a search warrant obtained without probable cause. Appellant did not seek

a hearing or ruling before trial.

                At trial commencing three days later on August 8, the State sought to introduce items

seized pursuant to the search warrant. Appellant’s counsel objected on the ground that the items

were seized pursuant to a search warrant obtained without sufficient probable cause. After a voir

dire examination of the officer who obtained the search warrant, Detective Don Gallion of the San

Angelo Police Department, counsel objected further that the affidavit contained “misstatements” or

“misrepresentations.” The court overruled the objection and denied the motion to suppress, and

admitted into evidence the items seized pursuant to the search warrant.

                Appellant was convicted of aggravated assault with a deadly weapon, and this appeal

ensued.


                                          DISCUSSION

                Relying on Franks v. Delaware, appellant contends in a single issue on appeal that

the underlying affidavit for the search warrant contained false statements that were made “either

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knowingly or intentionally or with reckless disregard for the truth,” and the district court therefore

erred in denying his motion to suppress and admitting the evidence seized pursuant to the warrant.

See Franks v. Delaware, 438 U.S. 154 (1978). In his pretrial motion to suppress, appellant sought

to suppress all evidence illegally obtained or seized, alleging that the search of his residence was

pursuant to an invalid search warrant because the underlying affidavit did not establish probable

cause. On appeal, the only ground asserted for the invalidity is that the affidavit contains false

statements and, when the statements are stricken, insufficient probable cause remains. But the

motion to suppress did not encompass any allegation that the search warrant was obtained by

deliberate falsehood or reckless disregard of the truth.

               In determining the validity of a search warrant affidavit, the reviewing court considers

only the information brought to the issuing magistrate’s attention. The reviewing court is thus

limited to the four corners of the affidavit. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App.

1992). Texas courts generally will not look behind the face of the affidavit to determine the validity

of the affidavit and the search warrant based thereon. Ramsey v. State, 579 S.W.2d 920, 921 (Tex.

Crim. App. 1979); Carroll v. State, 911 S.W.2d 210, 218 (Tex. App.—Austin 1995, no pet.). An

exception is a proper Franks motion.

               When a defendant makes a “substantial preliminary showing” that a false statement

in the search warrant affidavit was made intentionally, knowingly, or with reckless disregard for the

truth, and that the false statement was necessary to the finding of probable cause, the Fourth

Amendment requires a hearing at the defendant’s request. Franks, 438 U.S. at 155-56; Dancy v.

State, 728 S.W.2d 772, 782 (Tex. Crim. App. 1987). The procedure for invoking a Franks hearing



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was set out in Dancy, 728 S.W.2d at 781, and in Ramsey, 579 S.W.2d at 922. To be entitled to an

evidentiary hearing under Franks on the allegations concerning the validity of the affidavit, the

defendant must allege deliberate falsehood or reckless disregard for the truth by the affiant,

specifically pointing out the portion of the affidavit claimed to be false. Allegations of negligence

or innocent mistake are insufficient, and the allegations must be more than conclusory. The

defendant must also accompany these allegations with an offer of proof, such as an affidavit or other

statement, stating the supporting reasons. The defendant must further demonstrate that when the

portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is

insufficient to support issuance of the warrant. See Franks, 438 U.S. at 171-72; Ramsey, 579 S.W.2d

at 922-23.

               The burden is on the defendant at the hearing to show falsity or reckless disregard for

the truth by a preponderance of the evidence. If the defendant meets this burden, the false material

in the affidavit will be disregarded. If the affidavit’s remaining content is not enough to show

probable cause, the search warrant is voided and the fruits of the search excluded. Dancy, 728

S.W.2d at 782-83.      A misstatement in an affidavit that results from simple negligence or

inadvertence as opposed to a deliberate falsehood or reckless disregard for the truth will not render

the warrant invalid. Id.

               Here, appellant did not follow the prescribed procedure. By his motion to suppress,

the overruling of which he challenges on appeal, appellant failed to make any preliminary showing

that a false statement was included by the affiant officer in the affidavit either knowingly and

intentionally or with reckless disregard of the truth. Appellant did not allege in his motion that the



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affiant made a false statement, nor did he seek a hearing or ruling before trial. See Franks, 438 U.S.

at 155; Dancy, 728 S.W.2d at 781. “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.”

Franks, 438 U.S. at 171. Because he failed to make any showing, he never brought himself within

the purview of the Franks rule and was not entitled to a Franks hearing. Absent such a showing as

would warrant a Franks hearing, the reviewing court will not look beyond the four corners of the

affidavit. See Brooks v. State, 642 S.W.2d 791, 796-97 (Tex. Crim. App. 1982). Even if we assume

the issue was properly raised at trial, appellant failed to make the requisite showing.

               At trial, witness Shannon Gonzales testified that she and some friends had stayed at

appellant’s house “on Jackson Street” into the morning of June 8. Because appellant’s parents were

returning home and “he didn’t want us to be there,” Gonzales rented the motel room at the Santa Fe

Junction Motor Inn where the incident later occurred. She testified that she responded to the

detectives’ questions, including one concerning appellant’s address: “I didn’t remember if it was

north or south. I might have remembered the address at the time.” Appellant’s counsel then

questioned Detective Gallion about his conversation with Gonzales and the preparation of the

affidavit in support of the search warrant:


       Q: Now, you said in your affidavit, you said you spoke with—with whom did you
          speak in order to get your information about the house?

       A: May I refer to my affidavit?

       Q. Yes.

       A. I spoke with Detective Henshaw, Detective Barrera, and Shannon Gonzales.



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       Q. And how did you come into contact with Shannon?

       A. Through Detective Henshaw.

       Q: And where did you speak with her?

       A: I actually spoke through Detective Henshaw to her after reading her statement.


Gallion later testified that in addition to speaking with Detective Henshaw, who actually took

Gonzales’s statement, he also spoke with Gonzales on the telephone.

               The State sought to introduce evidence seized from appellant’s home over the

objection of appellant’s counsel. The search warrant affidavit states in relevant part:


       The probable cause for the filing of this complaint is that affiant is a peace officer
       under the laws of the State of Texas. . . . Affiant has spoken to SAPD Detectives
       Henshaw and Barrera and Shannon Gonzalez and learned the following: That on June
       8, 2001 the Defendant was in a room at the Santa Fe Junction Motor Inn, Room 207,
       which is located in San Angelo, Tom Green County, Texas. That the shooting
       victim, Timothy Ruiz, and his friend Andrew Garcia were walking by the Santa Fe
       Motor Inn and were invited into the above mentioned room by the Defendant. That
       once inside, Ruiz and Garcia sat at a table and began to roll marijuana cigarettes
       while the Defendant took a phone call. That when the Defendant finished talking on
       the phone he returned to the table where Ruiz and Garcia were sitting and appeared
       to be angry. That the defendant produced a handgun and pointed it, from extremely
       close range, at Ruiz’s head. That the Defendant then pulled the trigger and shot Ruiz
       in the head, lodging the bullet in the base of Ruiz’s skull. That immediately
       thereafter, Garcia pulled Ruiz out of the room and the victim was taken to the
       hospital. The Defendant also immediately left the room and fled the scene.

       Affiant participated in a search warrant executed at the Santa Fe Junction Motor Inn
       on the afternoon of June 8, 2001. During the search of the room, no firearm was
       found. At approximately 2:30 p.m. on today’s date, affiant spoke with Shannon
       Gonzales and she related that the Defendant admitted to her that he shot the victim
       in the head, stating, “I shot that kid with my gun.” Gonzales told affiant that she had
       been to the Defendant’s house and spoke with him. Gonzales told affiant that she
       noticed blood on the Defendant’s shoes when she was talking to him. Gonzales gave
       affiant the Defendant’s home address as 801 N. Jackson.

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Because Gallion’s affidavit avers (i) that “affiant spoke with Shannon Gonzales,” and appellant

argues that the testimony establishes that only Detective Henshaw spoke with her directly and that

Gallion received his information indirectly from Henshaw, and (ii) that Gonzales gave appellant’s

home address as 801 N. Jackson when she was confused about whether he lived on North or South

Jackson and could not remember what she told the detective, appellant argues that the affidavit

contained false or misleading statements and the probable cause is therefore insufficient. We

disagree.

               Even if it can be argued that appellant complied with the requirements of Franks and

that it is therefore permissible to go behind the four corners of the affidavit, the record before this

Court does not show that false statements were intentionally or knowingly made by Detective

Gallion or that there was a reckless disregard of the truth. Innocent mistakes or even negligence are

not sufficient to support a Franks claim. Mere conflicts between investigative notes or witness

statements and the actual affidavit will not support a Franks claim. Probable cause in the affidavit

was based on (i) hearsay information received by Officer Gallion, which he appropriately relied

upon, and (ii) Gallion’s own investigation. Gallion acknowledged that Gonzales’s statements in the

affidavit were made to Henshaw and not to him even though he also spoke with Gonzales by

telephone. He also testified that the correct address was confirmed through investigative records of

prior dealings with appellant. Gallion was not further questioned as to other circumstances of the

preparation and execution of the affidavit. He was never asked whether the statement in the affidavit

that the “affiant spoke with Gonzales” was a knowing or intentional misrepresentation, was a false




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statement, or was made in disregard of the truth. Gallion testified that he prepared the affidavit at

the direction of the assistant district attorney before presenting it to the judge.

                Even if it can be argued that these statements were overstatements or inaccurate

summaries of information, the statements were not shown to be deliberately false. Gallion

accumulated information for the affidavit, some of which was hearsay. Gonzales’s witness

statement, which was not in evidence, evidently confused directions on Jackson Street. In any event,

Gonzales testified at trial that she had been at appellant’s house the night before the shooting and

simply could not recollect the precision with which she recounted the address to the officers. That

the detective used other investigatory tools to confirm the address he received from a witness is

simply prudent police work. If any of the information was contradictory, at most it raised a fact issue

for the trial judge to resolve, which she resolved against him. See Hinojosa v. State, 4 S.W.3d 240,

247 (Tex. Crim. App. 1999). Moreover, even if the statements were false and therefore stricken

from the face of the affidavit, the remaining content would still reflect ample probable cause

sufficient to support the issuance of the search warrant. Appellant neither alleged nor proved that

he was entitled to any relief under Franks.


                                           CONCLUSION

                Appellant did not make the preliminary showing of deliberate falsehood or reckless

disregard of the truth required by Franks. Because appellant failed to raise a Franks claim before

or at the time of trial, the district court was not given an opportunity to rule on the contention and

nothing is presented for review. If presented, the contention is without merit. Because we do not




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find that the district court abused its discretion in overruling the motion to suppress, we affirm the

judgment of conviction.




                                               Jan P. Patterson, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: June 19, 2003

Do Not Publish




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