      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00343-CR



                                Kevin Lamar Warren, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
         NO. 64414, THE HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Following the denial of his            pretrial   motions   to   suppress, appellant

Kevin Lamar Warren pled guilty, pursuant to a plea bargain, to possession of 400 grams or more of

a controlled substance with intent to deliver, and was sentenced to 45 years in the Texas Department

of Criminal Justice. See Tex. Health & Safety Code § 481.112(a), (f). On appeal, appellant raises

three points of error complaining about the trial court’s denial of his motions to suppress. Finding

no error in the trial court’s ruling, we affirm the judgment of conviction.


                                         BACKGROUND

               Officers from the Killeen Police Department went to 3701 YS Pak Court,

Apartment H, to search for a female fugitive who had listed that address on her bail bond records.

Two officers approached the front door of the residence while another officer covered the rear of the

residence. As they approached the front door, an adult male, later identified as Terrance Ford,
opened the inner door behind the outer security door.1 The officers could immediately smell the

distinctive odor of burning marijuana coming from inside the apartment and could see lingering

smoke inside the room.

                The officers, in standard police uniform, identified themselves to Ford and advised

him that they were looking for the fugitive female. Ford informed them that she did not live there

and he did not know who she was. To further investigate the fugitive’s whereabouts, one of the

officers, Officer Richard Bradley, asked Ford to produce identification. The officer could see two

other males, later identified as the appellant, Kevin Lamar Warren, and his brother, Keith Lamar

Warren, in the living room. After the officer’s request for identification, Ford walked back into the

living room area and Officer Bradley saw all three men immediately go into the kitchen. The officer

could not see into the kitchen but heard shuffling and movement noises coming from the kitchen

area. Ford returned to the door without identification. When Officer Bradley again asked for

identification, Ford went upstairs indicating he needed to retrieve it from there.

                Becoming concerned for officer safety, Officer Bradley tried the security door and

found it to be locked. Ford then returned downstairs, still without identification. The officer asked

a third time for identification and Ford retrieved a photo identification from a cigar box on the

television just inside the doorway. Ford then removed keys from his pocket, unlocked the security

door, opened the door, stood aside, and motioned for the officers to enter the apartment.2 The

        1
         The record reflects that this outer security door, called the “burglar bar door” by the parties,
consisted of metal bars and a mesh screen that allowed the passage of air.
        2
           This testimony was contradicted at the suppression hearing by Ford’s testimony. Ford
testified that he only unlocked and opened the security door to provide the officer with his
identification but Officer Bradley put his foot in the door, pulled the door open, and, along with the

                                                   2
officers entered the apartment and Officer Bradley again advised the men that they were looking for

the female fugitive. He also asked about the marijuana smoke in the room. At that point, Ford

produced a baggie of marijuana and gave it to Officer Bradley, stating that it was all that they had.

The men indicated that they had been smoking it while watching a game on television.

               Concerned that all three men had quickly gone into the kitchen as soon as they heard

the name of the fugitive the police sought, and unaware of whether others were present in the

apartment, Officer Bradley went into the kitchen area to check for the fugitive and conduct a

protective sweep. Upon entering the kitchen, the officer immediately saw a large Pyrex measuring

cup that contained a milky white liquid next to the sink. He also observed that one of the doors to

a cabinet above the stove was open and inside he saw a box of Ziploc baggies, a digital scale, and

a clear plastic container that had a white powder residue on it. There was a portion of the kitchen

cabinetry that formed an elbow or L shape and, based on his prior experience of finding a person

concealed in such a cabinet, Officer Bradley believed it might be large enough to hide a person. He

opened the cabinet door to check and saw an open shoe box containing four Pyrex measuring cups

with a white crusty residue on them. From his years of law enforcement experience, the officer

recognized the items he observed in the kitchen as those used in the manufacture of crack cocaine.

At this time, Officer Bradley terminated any further protective sweep of the kitchen or apartment.

               After consulting with his sergeant, Officer Bradley notified Detective Carl Pergande,

a detective with the Killeen Police Organized Crime Unit, who, based in part on the observations of

Officer Bradley, obtained a warrant to search Ford’s apartment. During the search conducted



other officer who had her gun drawn, forced his way into the apartment.

                                                  3
pursuant to that warrant, officers discovered 3.2 kilograms of cocaine, 602 grams of marijuana,

330 grams of promethazine, a hand gun, and various drug paraphernalia. This discovery, in

combination with additional police investigation, prompted the officers to obtain a subsequent search

warrant for another apartment located in the same complex, Apartment C, where appellant resided.

The search conducted pursuant to that warrant yielded an additional 30 grams of cocaine, another

handgun, and more drug paraphernalia.

               Ford, appellant, and appellant’s brother were arrested that night and subsequently

each charged by indictment with possession of 400 grams or more of a controlled substance, namely

cocaine, with intent to deliver. All three filed separate motions to suppress, and each adopted the

motions filed by his co-defendants. The motions were consolidated for the suppression hearing.3

The trial court denied all of the defense motions to suppress.4


                                          DISCUSSION

                                 Warrantless Entry and Search

               In his first point of error, appellant asserts that Officer Bradley exceeded the scope

of a valid protective sweep and thus the trial court erred in failing to suppress the evidence derived



       3
          The trial court actually conducted two hearings on the motions to suppress. In the first
hearing, the defendants sought to suppress evidence derived from the warrantless entry into Ford’s
apartment. In the second hearing, conducted on two separate days, the defendants sought to suppress
evidence seized during the searches of Ford’s apartment and appellant’s apartment that were
conducted pursuant to the subsequently obtained search warrants.
       4
          Three of appellant’s six motions to suppress sought to suppress evidence obtained from
the searches of the defendants’ cell phones. The State elected not to use any evidence or information
derived from the cell phones, so appellant does not complain about the denial of those three motions
on appeal.

                                                  4
from the warrantless entry into Ford’s apartment. In his second point of error, appellant argues that

because the search warrants were based on evidence derived from the warrantless search of Ford’s

apartment by Officer Bradley, the trial court erred in failing to suppress the evidence obtained during

the subsequent searches of Ford’s apartment and his apartment pursuant to those search warrants.5

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

discretion, applying a bifurcated standard of review where we give almost total deference to a trial

judge’s findings of historical fact and credibility determinations that are supported by the record, but

review questions of law de novo. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013);

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We will affirm the trial court’s ruling

if it is reasonably supported by the record and is correct under any theory of law applicable to the

case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).




       5
          Although not at issue in this appeal, we note that there is some question as to whether
appellant has standing to contest the search of Ford’s apartment. See State v. Betts, 397 S.W.3d 198,
203 (Tex. Crim. App. 2013) (“The rights secured by the Fourth Amendment and Article I, Section
9, are personal, and accordingly, an accused has standing to challenge the admission of evidence
obtained by an ‘unlawful’ search or seizure only if he had a legitimate expectation of privacy in the
place invaded.”); Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (“[A defendant] has no
standing to complain about the invasion of someone else’s personal rights.”). At the suppression
hearing, the State “waive[d] standing,” apparently based on the fact that the probable cause affidavit
and search warrant for Ford’s apartment asserted that the premises was “in charge of and controlled
by” all three men. See Betts, 397 S.W.3d at 203 (whether defendant was legitimately in place
invaded and whether he had complete dominion or control and right to exclude others are
circumstances of search to be examined in determining whether defendant has demonstrated
objectively reasonable expectation of privacy); but see Minnesota v. Carter, 525 U.S. 83, 90 (1998)
(legitimate privacy expectation of overnight guest does not extend to casual visitor or guest who is
merely present with consent of homeowner). We do not address the issue of whether appellant had
standing to contest the search.

                                                   5
                The Fourth Amendment to the United States Constitution prohibits unreasonable

searches and seizures. Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011); see U.S. Const.

amend. IV; Illinois v. Rodriguez, 497 U.S. 177, 179 (1990). The entry into a residence by police

officers is a “search” for purposes of the Fourth Amendment. Limon, 340 S.W.3d at 756; Valtierra

v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010). A warrantless police entry into a residence

is presumed unreasonable unless the entry falls within one of a well-defined group of exceptions.

Limon, 340 S.W.3d at 756; Valtierra, 310 S.W.3d at 448.

                Voluntary consent is one such exception. Rodriguez, 497 U.S. at 181; Limon,

340 S.W.3d at 756; Valtierra, 310 S.W.3d at 448. An owner’s or occupant’s voluntary consent

makes the entry into a residence by police officers constitutionally “reasonable.” Rodriguez,

497 U.S. at 181; Valtierra, 310 S.W.3d at 448. Consent may be given orally or by action, or may

be shown by circumstantial evidence. State v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App.

2011); Valtierra, 310 S.W.3d at 448. The validity of an alleged consent to search is a question of

fact to be determined from the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 40

(1996); Weaver, 349 S.W.3d at 526; Valtierra, 310 S.W.3d at 448. The State must prove voluntary

consent by clear and convincing evidence. Weaver, 349 S.W.3d at 526; Valtierra, 310 S.W.3d

at 448.

                At the suppression hearing, the trial court heard testimony from Officer Bradley that

Ford invited the officers into his apartment by unlocking the security door, opening the door,

motioning for the officers to come in, and stepping back to accommodate their entry. At a

suppression hearing, the trial judge is the sole trier of fact and exclusive judge of the credibility of



                                                   6
the witnesses and the weight to be given to their testimony. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Further,

unless the trial court abuses its discretion by making a finding unsupported by the record, we defer

to the trial court’s findings of fact and will not disturb them on appeal. State v. Johnson,

336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman, 955 S.W.2d at 89; Miller v. State,

335 S.W.3d 847, 854 (Tex. App.—Austin 2011, no pet.). The trial court made fact findings and

conclusions of law that Officer Bradley was lawfully at Ford’s apartment to look for the female

fugitive and that he properly entered the apartment only after being invited into the residence by

Ford. See Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App. 2004) (consent to enter home

could be inferred from defendant’s action of motioning officer to come forward). These findings are

supported by the record.

               Consent to enter a residence, however, does not, without more, provide consent for

a police officer to search the entire residence or objects therein. Valtierra, 310 S.W.3d at 448. The

scope of a search is usually defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251

(1991); Weaver, 349 S.W.3d at 526. The “standard for measuring the scope of a suspect’s consent

under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical

reasonable person have understood by the exchange between the officer and the suspect?” Jimeno,

500 U.S. at 251; Weaver, 349 S.W.3d at 526.

               Here, Ford invited the police officers into his apartment during a conversation in

which he was advised that the police were at his apartment looking for a female fugitive. Based on

the exchange between Officer Bradley and Ford, a reasonable person would have understood that



                                                 7
the purpose for which the officers entered the apartment, with Ford’s permission, was to search for

the fugitive. After entering the apartment, Officer Bradley reiterated the officers’ purpose of

searching for the fugitive. He then went into the kitchen—the area where he saw the men go

immediately after he initially advised Ford they were looking for the fugitive and where he then

heard shuffling and movement—to check for the fugitive. The officer saw contraband in plain view

and observed a kitchen cabinet that he thought might possibly conceal a person. He opened the

cabinet to check for the fugitive and found additional contraband, and immediately ceased this

activity. He did not search the kitchen or apartment any further. His search was consistent with the

consent Ford gave when he invited the officers into his apartment knowing they were looking for the

fugitive. See Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012) (“If an officer is invited

or permitted to come into a house for a particular purpose (such as to look for a particular person or

object), the scope of the consent to enter normally includes consent to search those areas in which

the person or object would reasonably be found.” (quoting Valtierra, 310 S.W.3d at 450)).

               Another exception to the necessity of a search warrant is a “protective sweep”

performed by police officers. Maryland v. Buie, 494 U.S. 325, 327 (1990). A protective sweep is

a “quick and limited search of premises . . . conducted to protect the safety of police officers or

others.” Reasor v. State, 12 S.W.3d 813, 815 (Tex. Crim. App. 2000). The sweep must not be a

“full search of the premises” and the searching officers must possess “a reasonable belief based on

specific and articulable facts that the area to be swept harbors an individual posing a danger to those

on the arrest scene.” Id. at 816.




                                                  8
               Appellant argues that even if the officers were initially present in Ford’s apartment

for valid law enforcement purposes after being invited in,“those officers’ subsequent observations

in the apartment, including plain view observations of narcotics and paraphernalia in the residence,

were outside the purview of a ‘protective sweep’ of the property[.]” He contends that Officer

Bradley’s sweep should have been completed once he determined that no one was in the kitchen.6

He further asserts that Officer Bradley failed to articulate specific facts sufficient to justify an

expanded protective sweep.7      Specifically, appellant complains that there was no evidence

demonstrating that the female fugitive the police sought was “armed and dangerous” or that the men

in the apartment “were loud, profane, abusive, or aggressive.” He further observes that the evidence

reflected that none of the officers “even felt the need to draw weapons.”

               However, Officer Bradley testified that as he approached the apartment, the inner

door was opened and he smelled the odor of burning marijuana and saw lingering smoke inside.

Once he advised Ford that they were looking for the female fugitive, he saw Ford and the two other

men move quickly into the kitchen, where he was unable to observe them, and he then heard

shuffling and movement. After entry into the apartment on Ford’s invitation, the three men admitted

smoking marijuana and Ford produced more of the illegal substance. Officer Bradley expressed that

under these circumstances—the quick retreat to the kitchen in response to the mention of the

       6
          We note, however, that in his testimony the officer expressed that he was concerned about
concealed persons. He explained during cross-examination that his initial scan of the kitchen
showed that there was no one “in the open” who could compromise his safety and that there was no
threat to his safety “[t]hat could be seen.”
       7
         In his argument, appellant appears to suggest that there were two entries into the kitchen
by Officer Bradley. First, to scan with his flashlight, then later to open the cabinet. However, the
record demonstrates a single entry by the officer into the kitchen.

                                                 9
fugitive’s name, the noises he subsequently heard coming from that area, and the presence of

narcotics—he determined that he needed to perform a security sweep for officer safety. The officer

testified to specific and articulable facts permitting the trial court to find that the officer had an

objectively reasonable belief that a person in the kitchen posed a danger to him or other persons in

the apartment, justifying his entry into the kitchen for a brief search for any other persons present.

See Ramirez v. State, 105 S.W.3d 730, 743 (Tex. App.—Austin 2003, no pet.) (officer was permitted

to sweep garage room in order to establish that no individuals were present). Officer Bradley’s

search was limited to a protective sweep of the kitchen area—where the men scurried and he heard

the suspicious activity—and was limited to those places where he believed a person may be found.

               In addition to the fact findings and conclusions of law discussed previously, the trial

court made fact findings and conclusions that Officer Bradley (1) properly opened the kitchen

cabinet door to search for a concealed person, (2) conducted a proper protective sweep of the interior

of the apartment, and (3) made proper plain-view observations of narcotics and narcotics

paraphernalia. The court further concluded that the observations Officer Bradley made established

probable cause for the search warrant of Ford’s apartment and that the subsequent search of Ford’s

apartment, along with the police investigation conducted in connection with that search, yielded

additional information and evidence that established probable cause to search Apartment C,

appellant’s apartment. See State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012) (probable

cause exists when, under totality of circumstances, there is fair probability that contraband or

evidence of crime will be found at specified location at time warrant is issued). The record supports

these findings and conclusions.



                                                  10
                Viewed in the light most favorable to the trial court’s ruling, the record reflects that

Ford invited the police into his apartment when they advised him that they were searching for the

female fugitive and that once inside Officer Bradley’s search did not exceed the permissible scope

of Ford’s consent nor that of a protective sweep. The search conducted during the protective sweep

and pursuant to Ford’s consent yielded evidence sufficient to establish probable cause to obtain a

search warrant for Ford’s apartment. The execution of that search warrant yielded further evidence

that, together with information obtained in the course of the connected police investigation,

established probable cause to obtain a search warrant for appellant’s apartment. Therefore, we

conclude that the trial court did not abuse its discretion in denying appellant’s motions to suppress.

We overrule appellant’s first two points of error.


                                            Franks Claim

                In his third point of error, appellant contends that the evidence seized from his

apartment, Apartment C, should have been suppressed because Detective Pergande’s search-warrant

affidavit contained a false statement that was made knowingly and intentionally. Specifically,

appellant challenges the statement in the affidavit that reflects that his brother, Keith Warren, was

listed as the account holder on the water bill when in fact his name was on the water account.

                The Fourth Amendment requires that a defendant be allowed to challenge the veracity

of a probable cause affidavit “where 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.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978); see Emack v. State,

                                                   11
354 S.W.3d 828, 837 (Tex. App.—Austin 2011, no pet.). To require the trial court to hold a Franks

evidentiary hearing and to preserve the issue for appellate review, a 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. Harris v. State, 227 S.W.3d 83, 85–86 (Tex. Crim. App. 2007); Cates v. State,

120 S.W.3d 352, 356 (Tex. Crim. App. 2003). Specific allegations and evidence must be apparent

in the pleadings in order for a trial court to even entertain a Franks proceeding. Harris, 227 S.W.3d

at 85.

                Initially, we note that appellant did not meet the requirements necessary to obtain a

Franks hearing in the trial court. He merely made the following assertion in his two motions to

suppress complaining that the search warrant affidavits lacked probable cause:


         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.


There is no mention of what specific portion of Detective Pergande’s affidavit was allegedly false,

nor any offer of proof to contradict whatever that alleged misrepresentation was. This conclusory

assertion falls far short of what is required under Franks and does not satisfy the pleading and

evidentiary requirements for obtaining a Franks hearing. See Harris, 227 S.W.3d at 85; see also

Franks, 438 U.S. at 171 (“To mandate an evidentiary hearing, the challenger’s attack must be more



                                                 12
than conclusory and must be supported by more than a mere desire to cross-examine.”).

Nevertheless, although we are not convinced that appellant made a “substantial preliminary

showing” under Franks, the trial court opted to address his Franks complaint. Because the trial court

reached this issue, we will review its findings and conclusions. The question then becomes whether

appellant met his burden of proving a knowingly false statement. We conclude he did not.

               An affidavit supporting a search warrant begins with a presumption of validity.

Cates, 120 S.W.3d at 355. An appellant has the burden of establishing by a preponderance of the

evidence the allegation of perjury or reckless disregard for the truth. Franks, 438 U.S. at 156;

Harris, 227 S.W.3d at 85; Emack, 354 S.W.3d at 838; see also Fenoglio v. State, 252 S.W.3d 468,

472–73 (Tex. App.—Fort Worth 2008, pet. ref’d). We review the trial court’s ruling on a Franks

claim under the same standard applied to search-and-seizure issues generally: we give almost total

deference to the court’s rulings on questions of historical fact and mixed questions of law and fact

that turn on an evaluation of credibility and demeanor, but we review de novo the trial court’s

application of the law to those facts. Emack, 354 S.W.3d at 838; Jordan v. State, 271 S.W.3d 850,

854 (Tex. App.—Amarillo 2008, pet. ref’d); Fenoglio, 252 S.W.3d at 473; see Johnson v. State,

68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

               As we review the record to determine whether appellant met his burden of showing

deliberate falsity or reckless disregard for the truth, we are mindful that the Fourth Amendment

requires a truthful factual showing when determining probable cause. See Franks, 438 U.S. at

164–65. “Truthful,” however, does not mean that every fact recited in the affidavit must be precisely

accurate, “for probable cause may be founded upon hearsay and upon information received from



                                                 13
informants, as well as upon information within the affiant’s own knowledge that sometimes must

be garnered hastily.” Id. at 165. Rather, “truthful” in this context means that the information put

forth in the affidavit is believed or appropriately accepted by the affiant as true. Id.; Clement v. State,

64 S.W.3d 588 (Tex. App.—Texarkana 2001, pet. ref’d); see Janecka v. State, 937 S.W.2d 456, 462

(Tex. Crim. App. 1996). If the statement in the search-warrant affidavit that is claimed to be false

or made in reckless disregard for the truth only evidences an instance where the police have been

merely negligent or mistaken in checking or recording the facts relevant to a probable-cause

determination, it is beyond the scope of Franks. Dancy v. State, 728 S.W.2d 772, 783 (Tex. Crim.

App. 1987) (misstatement in affidavit that is result of simple negligence or inadvertence will not

invalidate warrant); see Franks, 438 U.S. at 171 (“[a]llegations of negligence or innocent mistake

are insufficient” to warrant striking portions of affidavit).

                Here, the evidence showed that as part of the police investigation Detective Eureka

Williams contacted a Public Service Officer at the Killeen Police Department to check the registered

water listing for Apartment C at 3700 YS Pak Court and found that it returned to Kevin Warren.

Detective Williams testified that she conveyed that information to Detective Joel Wadley. Detective

Wadley testified that he conveyed information that Keith Warren was the registered account holder

to Detective Pergande because that is what Detective Williams told him. Detective Pergande

testified that based on information he received from Detective Wadley, he stated in his affidavit that

the water listing for Apartment C returned to Keith Warren.

                Appellant asserts that the detectives intentionally provided the wrong name, but he

offered no proof to that effect at the suppression hearing. There was no showing during the



                                                    14
suppression hearing that any of the detectives’ statements were made with the type of knowledge,

intent, or recklessness contemplated by Franks. In fact, appellant never established that Detective

Pergande was aware that his statement concerning the name on the water account was incorrect at

the time he included the statement in his affidavit. Detective Pergande testified that he only found

out about the error two days after obtaining the warrant. Detective Wadley testified that “[he

thought]” he told Detective Pergande about the mistake in the names but not before the warrant

was issued.

               Appellant asserts that the fact that the officers did not attempt to correct the affidavit

or seek a new warrant when they discovered the mistake (after the search warrant was issued but

before the search was conducted) demonstrates that the officers acted “with a wanton and reckless

disregard for the truth.” However, Detective Pergande’s testimony reflected that, contrary to

knowingly making a false statement or one in disregard of the truth, he stated information in his

affidavit that he believed to be correct and truthful:


       Q.      You then state that we checked the water listing and found it returned to
               account holder of Keith Warren, correct?

       A.      Yes.

       Q.      At the time you received this information you believe[d] it to be factual and
               accurate?

       A.      Yes.


               The trial court made the following fact finding and conclusion concerning the error

in the name:



                                                  15
         There was an incorrect statement in the Affidavit for Probable Cause in support of
         the search warrant for 3700 #C YS Pak regarding the name the water listing was in
         for the residence. The incorrect statement was an inadvertent mistake. The mistake
         was not an intentional misrepresentation, not an intentional lie, and there was no
         wanton or reckless disregard for the truth. The incorrect statement was not material
         to the probable cause in support of the search warrant.


A review of the testimony of the officers supports the trial court’s finding and conclusion. Although

Detective Pergande’s statement concerning the name on the water account ultimately proved to be

incorrect, the record reflects that this misstatement resulted from a misunderstanding or

miscommunication between the officers, which amounts, at most, to mere negligence by Detective

Pergande. It does not indicate that Pergande intentionally, knowingly, or with reckless disregard for

the truth placed a false assertion in the affidavit. Innocent mistakes or even negligence are not

sufficient to support a Franks claim. See Franks, 438 U.S. at 171; Dancy, 728 S.W.2d at 783. The

trial judge heard testimony from all three detectives involved and concluded that the incorrect

statement in the affidavit was an inadvertent mistake. As we previously noted, the trial judge at a

suppression hearing is the sole trier of fact and exclusive judge of the credibility of the witnesses

and the weight to be given to their testimony. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d

at 89.

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

the record supports the trial court’s finding and conclusion that Detective Pergande did not

intentionally or knowingly make a false statement or one in reckless disregard for the truth in his

search warrant affidavit. Accordingly, the trial court did not abuse its discretion by refusing to




                                                 16
suppress the evidence obtained during the search of appellant’s apartment based on error contained

in the affidavit. We overrule appellant’s third point of error.


                                         CONCLUSION

               Finding no abuse of discretion in the trial court’s denial of appellant’s motions to

suppress, we affirm the judgment of conviction.




                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: March 20, 2014

Do Not Publish




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