                                    NO. 07-03-0458-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                FEBRUARY 22, 2005
                          ______________________________

                                 JERRY DALE JENKINS,

                                                         Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                 Appellee
                        _________________________________

               FROM THE 100TH DISTRICT COURT OF HALL COUNTY;

                    NO. 3247; HON. DAVID M. MCCOY, PRESIDING
                         _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Appellant, Jerry Dale Jenkins, appeals his conviction for possessing a controlled

substance (cocaine) with intent to deliver. In 11 issues, he contends that 1) he was

subjected to double jeopardy in violation of the federal and state constitutions, 2) the trial

court erred in refusing to grant his motion to suppress evidence obtained pursuant to an

invalid search warrant, 3) the affidavit attached to the search warrant was insufficient to

establish probable cause, 4) the trial court erred in overruling his objections to the court’s

charge during the guilt/innocence phase, 5) the trial court erred in refusing to grant his

motion to suppress because the affidavit in support of the warrant contained misstatements
resulting from an intentional or reckless disregard for the truth, 6) the evidence is legally

and factually insufficient to support the jury’s finding that the officers acted in good faith

reliance on the search warrant and that the misstatements resulted from simple negligence

or inadvertence, and 7) the evidence is legally and factually insufficient to support the

verdict. We affirm the judgment.

                                        Background

        Memphis Police Chief Gary Gunn found Caesar Samaniego in possession of stolen

tools and, in exchange for leniency with respect to that crime, arranged for Samaniego to

purchase cocaine from appellant. The next day, Gunn met Samaniego, searched him and

his vehicle, gave him two $20 bills that had been photocopied, followed him to appellant’s

house, and watched Samaniego enter and exit the house and drive away. Thereafter,

Gunn followed Samaniego to a predetermined location and received two rocks of cocaine

from him.

        Gunn then signed an affidavit in support of a warrant to search appellant’s residence

for “methamphetamines and other narcotics.” The affidavit also described the drug

transaction alluded to in the preceding paragraph and Samaniego’s ability to recognize

“methamphetamine” because he had used it before.

        The search warrant was issued based upon the affidavit of Gunn and executed.

When the latter occurred, appellant was found in the residence along with two young

women. So too was a plastic bag with crack cocaine found floating in the toilet. Further

inspection of the toilet revealed that it was not bolted to the floor. Thus, it was removed

from its location, and this resulted in the discovery of a bag of cocaine in the underlying

pipe.

                                              2
                                    Issues 1 and 2 - Double Jeopardy

         In his first two issues, appellant argues he was subjected to double jeopardy in

violation of the United States and Texas Constitutions.1 We overrule the issues.

         The substance of appellant’s argument involves the failure of the State to “properly

file the second page of the ‘Inventory and Return’ for the ‘Search Warrant’ in this matter.”

The omission was discovered by the prosecutor the day after the jury was impaneled, and

appellant was told of it that morning. Thereafter, appellant moved for a mistrial in order to

develop additional defenses. The motion was granted. Later, another jury was impaneled,

which jury eventually convicted appellant of the charged offense. Appellant now argues

that jeopardy attached when the trial court granted the mistrial after the first jury was

impaneled. Thus, he could not again be tried for the charged offense. We disagree.

         The second page of the inventory contained one of the $20 bills that had been given

to Samaniego for use in the drug buy. Furthermore, defense counsel admitted that he

previously “looked” at, and therefore “understood,” what was recovered during the search,

which included the $20 bill listed on the second page.

         Absent prosecutorial misconduct, double jeopardy does not bar a subsequent trial

when the first one resulted in a mistrial sought by the defendant. Ex parte Peterson, 117

S.W.3d 804, 810-11 (Tex Crim. App. 2003). Furthermore, the prosecutorial misconduct

contemplated in the rule consists of more than inadvertence, sloppiness, negligence or

blunder, even though same may result in prejudice. Id. at 817.




         1
             Appellant does not present separate authority for the two issues, and we will therefore address them
toge ther.

                                                         3
       While there is evidence that the prosecutor failed to give appellant the second page

of the inventory prior to trial, there is no evidence that he did so deliberately or recklessly.

Again, the prosecutor represented to the trial court that he did not know about the second

page until informed of its existence after the jury was impaneled. Moreover, when the

discovery was made, he immediately informed appellant’s counsel of it. Given this, one

could reasonably liken the omission to inadvertence or blunder. And, since that type of

conduct does not resurrect the double jeopardy bar, the trial court did not err in refusing to

sustain appellant’s double jeopardy plea.

                       Issues 3 and 4 - Validity of Search Warrant

       In his third and fourth issues, appellant alleges that the trial court should have

granted his motion to suppress evidence obtained pursuant to the search warrant because

the warrant was invalid. We overrule the issues.

       The search warrant was allegedly invalid because 1) it failed to disclose “the person,

place and thing” to be searched, and 2) it was not properly sealed and lacked the proper

certification. To the extent that statute requires one to name or describe the person, place

or thing to be searched, see TEX . CODE CRIM . PROC . ANN . art. 18.04(2) (Vernon 1977)

(requiring same), that information was contained in the affidavit executed by Gunn in

support of the warrant. Furthermore, the warrant expressly incorporated the affidavit by

reference.    Given these circumstances, the State did not fail to comply with the

requirements of art. 18.04(2), and the warrant was not invalid. See Ashcraft v. State, 934

S.W.2d 727, 735 (Tex. App.–Corpus Christi 1996, pet. ref’d) (holding that a warrant that

fails to name the persons, place, or items to be searched is not invalid where the



                                               4
information is contained within an affidavit that is incorporated, by reference, into the

warrant).

       As to the matter of certification and seal, we note that ministerial violations of the

statutes regulating the issuance of search warrants do not invalidate the warrant in the

absence of a showing of prejudice. State v. Tipton, 941 S.W.2d 152, 155 (Tex. App.–

Corpus Christi 1996, pet. ref’d); Robles v. State, 711 S.W.2d 752, 753 (Tex. App.–San

Antonio 1986, pet. ref’d). So, assuming arguendo that the warrant was required to be

certified and sealed as appellant contended, it matters not since he failed to allege or show

prejudice arising from the omissions.

                    Issues 5 and 7 - Suppression of Illegal Warrant

       Appellant argues in his fifth and seventh issues that the trial court erred in failing to

suppress the evidence obtained as a result of executing the search warrant because 1) the

affidavit supporting the issuance of the warrant was insufficient to establish probable cause,

2) the misstatements contained in the affidavit were intentionally or recklessly uttered, and

3) the reliability of the hearsay declarant was not established in the affidavit because it did

not illustrate that he was familiar with methamphetamine. We overrule the issues.

       Each contention is premised on the fact that the affiant, Gary Gunn, substituted the

word “methamphetamine” for “cocaine” in the affidavit. Yet, at the hearing upon appellant’s

motion to suppress, Gunn testified that “crack cocaine,” not methamphetamine, was the

drug Samaniego believed he could and did buy from appellant. So too did he say that the

local district attorney prepared the affidavit, that he (Gunn) “probably” used the slang term

for cocaine (i.e. “crack”) when informing the district attorney of the substance involved, that



                                               5
the slang term for methamphetamine was “crank,” that he did not read the affidavit as

closely as he should have, that he meant cocaine instead of methamphetamine, that the

substitution of “methamphetamine” for “cocaine” was a mistake, that the mistake was not

deliberate, and that he did not “catch that mistake.” Thereafter, the trial court concluded,

in open court, that the mistake was not the result of recklessness.2

       A misstatement in an affidavit resulting from simple negligence or inadvertence does

not render the affidavit invalid. Dancy v. State, 728 S.W.2d 772, 783 (Tex. Crim. App.

1987). Given the foregoing testimony and the similarity between the terms “crack” and

“crank” and the different drugs each describes, evidence existed upon which the trial court

could have reasonably concluded that the reference to methamphetamine instead of

cocaine was merely inadvertent. Indeed, the trial court was the sole trier of fact and

whether to credit Gunn’s testimony lay within its authority. See Champion v. State, 919

S.W.2d 816, 818-19 (Tex. App.–Houston [14th Dist. 1996, pet. ref’d) (based on testimony

that the use of an incorrect address in multiple places in the affidavit was a typographical

error, the court could have reasonably concluded it was the result of an inadvertent clerical

error); Rios v. State, 901 S.W.2d 704, 707 (Tex. App.–San Antonio 1995, no pet.) (based

on testimony that the use of the word “vehicle” instead of “premises” as the place to be

searched was a clerical error and the preparer did not proof the warrant after it was printed,

the court could have reasonably concluded the use was an inadvertent clerical mistake).

Thus, we cannot say that the trial court abused its discretion in rejecting the attacks

encompassed by these points of error.



       2
           It did not address whether the mistake was intentional for appellant was not arguing that it was.

                                                       6
                                  Issue 6 - Jury Charge

       Appellant contends in his sixth issue that the trial court erred in overruling his

objections to the jury charge. Because this issue went unbriefed, it was waived, however.

Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim. App. 2000).

       Issues 8 and 9 - Legal and Factual Sufficiency of Negligence Finding

       Appellant’s issues 8 and 9 concern the jury’s implicit finding that the officers

searching the residence acted in objective good faith reliance upon a warrant and that any

mistake in the affidavit resulted from simple negligence or inadvertence. He posits that the

findings lack legally and factually sufficient evidentiary support. We overrule the issues.

       The standards by which we review legal and factual sufficiency are well established.

We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d

589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) for

an explanation of them.

       Next, during trial, Gunn again testified that 1) the use of the word

“methamphetamine” instead of “cocaine” in the affidavit was a mistake and not done

deliberately, 2) both drugs were controlled substances prohibited by the same statute with

the same degree of penalty, and 3) both substances can also be white powdery looking

substances with one having the slang name “crack” and the other having the slang name

“crank.” While appellant argued that the word “methamphetamine” was used in order to

create probable cause so a warrant could be obtained, the use of the word “cocaine” would

have achieved the same result. Furthermore, nothing of record indicates that Gunn had

anything to gain by using the name of the wrong controlled substance and, therefore, a

                                             7
reasonable trier of fact could have found beyond a reasonable doubt that the misstatement

was merely negligent and that the officers relied in objective good faith on the warrant when

searching appellant’s residence. Further, the findings are neither manifestly unjust or

contrary to the overwhelming weight of the evidence.

                  Issues 10 and 11 – Legal and Factual Sufficiency

       In his final two issues, appellant contests the legal and factual sufficiency of the

evidence to sustain the verdict. We overrule the issues.

       Appellant’s arguments are founded upon the contention that the evidence of cocaine

should have been suppressed given the purported deficiencies in the affidavit which we

addressed in the prior issues. Yet, having found that the trial court did not err in refusing

to suppress the evidence, the basis for appellant’s argument is non-existent. Thus, we

cannot but reject his allegations.

         Accordingly, the judgment is affirmed.



                                                  Brian Quinn
                                                    Justice



Do not publish.




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