
                                          NO. 07-09-00375-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL A

                                            JULY 27, 2010




                                CARLOS BARRIENTOS MARTINEZ, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE



                            FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

                              NO. 2690; HONORABLE KELLY G. MOORE, JUDGE



Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                          MEMORANDUM OPINION

      Appellant, Carlos Barrientos Martinez, pleaded guilty to possessing less than  one  gram  of  a
controlled substance,[1] a state-jail felony, after the trial court overruled his motion to  suppress
the evidence seized pursuant to a search warrant.  The  trial  court  imposed  a  two-year  sentence,
probated for five years.  Appellant appeals the trial court’s ruling on his motion to  suppress.   We
affirm.





                                    Factual and Procedural History

      In his sole issue on appeal, Martinez contends that the trial court  erred  by  overruling  his
motion to suppress because the affidavit in support of the search warrant contained false  statements
from Denver City Police Officer Noe Valdez.  Specifically, appellant challenges the validity  of  the
affidavit and the search warrant it supported on the  basis  of  Valdez’s  statement  that  the  Ledo
Street residence to be searched was “in the charge of and controlled by” appellant at  the  time  the
affidavit was made.  Appellant alleges that he was not a resident of that  house  at  that  time  and
that Valdez’s statement to the contrary is a material falsehood  made  knowingly,  intentionally,  or
recklessly and, thus, it must be excised from the affidavit pursuant to Franks v. Delaware, 438  U.S.
154, 155–56, 98 S.Ct. 2674; 57 L.Ed.2d 667 (1978).  Further, according  to  appellant,  excising  the
misstatement would invalidate the warrant because  it  would  no  longer  specifically  identify  the
premises to be searched.

                                          Standard of Review

      We begin our review under the presumption that the affidavit in support of the  search  warrant
is valid.  See Cates v. State, 120 S.W.3d  352,  355  (Tex.Crim.App.  2003).   We  review  the  trial
court’s ruling on a motion to suppress for abuse of discretion.  State v. Dixon, 206 S.W.3d 587,  590
(Tex.Crim.App. 2006).  The  determination  of  whether  a  probable  cause  affiant’s  statement  was
deliberately false or made with reckless disregard for the truth is a question of fact, and  we  give
great deference to the trial court in  its  role  as  the  sole  trier  of  fact  and  judge  of  the
credibility of the witnesses.  See Janecka v.  State,  937  S.W.2d  456,  462  (Tex.Crim.App.  1996);
Blocker v. State, 264 S.W.3d 356, 358 (Tex.App.—Waco 2008, no pet.).

                                               Analysis

      Ordinarily, when we determine the validity  of  a  search  warrant  affidavit,  our  review  is
limited  to  the  four  corners  of  the  affidavit.   See  Jones  v.  State,  833  S.W.2d  118,  123
(Tex.Crim.App. 1992).  However, “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, the Fourth Amendment requires that a hearing be held  at  the  defendant’s
request.”  Franks, 438 U.S. at 155–56.  If the defendant has made a substantial  preliminary  showing
of deliberate falsity, the trial court is required to go behind the “four corners” of  the  affidavit
in a Franks evidentiary hearing.  Cates, 120 S.W.3d at 355 n.3.

      A defendant makes  a  substantial  preliminary  showing  and,  thus,  gains  the  right  to  an
evidentiary hearing, under Franks, by satisfying a three-part test.  See Harris v. State, 227  S.W.3d
83, 85 (Tex.Crim.App. 2007).  First, the defendant must allege a  deliberate  falsehood  or  reckless
disregard for the truth by the affiant, specifically  pointing  out  the  portion  of  the  affidavit
claimed to be false.  Id.  Secondly, the defendant must accompany these allegations with an offer  of
proof stating the support for such allegations.  Id.  Finally, the defendant  must  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.  Id.

      At the hearing on the motion to suppress,  the  movant  has  the  burden  of  establishing  the
allegation of perjury or reckless disregard for the truth by a preponderance of  the  evidence.   See
Franks, 438 U.S.  at  156;  Harris,  227  S.W.3d  at  85;  Jordan  v.  State,  271  S.W.3d  850,  854
(Tex.App.—Amarillo 2008, pet. ref’d).   If,  after  the  hearing,  the  trial  court  determines  the
defendant has met his burden of proof, the false information contained in the warrant affidavit  must
be disregarded.  See Franks, 438 U.S. at 156. If the remainder of  the  affidavit  does  not  contain
sufficient probable cause to support the issuance, the warrant is voided and  any  evidence  obtained
as a result of its issuance must be excluded.  Id.

      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 id. at 164–65.   “Truthful,”  however,
does not mean that every fact  recited  in  the  affidavit  is  necessarily  correct.   Id.  at  165.
Instead,  “truthful”  means  that  the  information  put  forth  in  the  affidavit  is  believed  or
appropriately accepted by the affiant as true.  Id.  The exclusionary rule in Franks does not  extend
to instances in which the police act “merely negligently” in collecting  the  facts  alleged  in  the
affidavit.  See id. at 170.

      Appellant testified that he had lived at the Ledo Street residence but that he  had  moved  out
approximately six months prior to the execution of the search warrant.  At the time  of  the  search,
appellant was living with his brother about two blocks away  from  the  Ledo  Street  residence.   He
denied that he still had some clothing at the Ledo Street residence.  He admitted  that  he  returned
to his former residence to visit and drink  with  his  friends  but  that  he  only  “rarely”  stayed
overnight there.

      Valdez testified that, according to the “information that [he] obtained,” appellant was  living
at the residence.  Valdez explained  that  information  from  the  confidential  informant,  whom  he
described as reliable, and complaints from  concerned  citizens  in  that  neighborhood  led  him  to
believe that the premises to be searched were controlled  by  appellant.   His  surveillance  of  the
premises supported such a conclusion when Valdez observed appellant at the residence.

      One of appellant’s friends, a codefendant who lived at the residence, testified that  appellant
had moved out approximately three months before the search but still had clothing at  the  residence.
From the witness’s description, those clothes were limited  to  some  work  attire.   He  added  that
appellant frequently came over to the residence but did not  have  a  key  to  the  door.   He  later
clarified, though, that none of the residents had a key and that they used a knife to gain access  to
the residence.  He testified that appellant no longer paid rent at the residence at the time  of  the
search.

      We assume, without deciding, that appellant sufficiently satisfied  the  three-part  test  that
would entitle him to a Franks hearing.  Based on evidence presented at the  hearing,  we  cannot  say
that the  trial  court  abused  its  discretion  by  determining  that  Valdez’s  statement  was  not
deliberately false or made with reckless disregard for the truth.  See Janecka, 937  S.W.2d  at  465.
The evidence shows that appellant had lived at the residence and frequently  visited  there.   Valdez
testified that he had obtained the information in the  affidavit  from  the  confidential  informant,
neighborhood complaints, and his own surveillance.  Based on such evidence,  the  trial  court  could
have rejected appellant’s allegation that Valdez included the challenged statement in  the  affidavit
knowing that such statement was false or in reckless disregard  for  the  truth.   See  Blocker,  264
S.W.3d at 359–60 (observing, during discussion of Franks claim, that even if defendant were  “only  a
houseguest, living in the trailer with the permission of the host, he  had  apparent  authority  over
the residence”).  Affording the trial court proper deference in making such a factual  determination,
we overrule appellant’s sole issue on appeal.  See Janecka, 937 S.W.2d at 462.

                                              Conclusion

      Having overruled appellant’s sole issue on appeal, we affirm the trial court’s judgment.



                                             Mackey K. Hancock
                                                   Justice

Do not publish.

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      [1] See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon Supp. 2009).


