                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-18-00130-CR


                               LYNN ALLEN ISBELL, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 35th District Court
                                      Brown County, Texas
                    Trial Court No. CR24450; Honorable Sam C. Moss, Presiding

                                          October 22, 2019

                                 MEMORANDUM OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       Appellant, Lynn Allen Isbell, appeals from his conviction by jury of the offense of

aggravated assault with a deadly weapon,1 enhanced by a prior felony conviction, and

the resulting sentence of imprisonment for life.2 Through two issues, Appellant contends




       1   TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2019).

        2 TEX. PENAL CODE ANN. § 12.33 (West 2019) (providing punishment for second degree felony);

TEX. PENAL CODE ANN. § 12.42(b) (West 2019) (providing punishment for habitual offenders such that
conviction for second degree felony is punished as a felony of the first degree when it is shown the
defendant has previously been finally convicted of a felony).
the trial court erred in denying his motion to suppress evidence seized pursuant to a

search warrant. We affirm.3


        BACKGROUND

        Appellant was charged with “intentionally and knowingly threaten[ing] Terry Pelton

with imminent bodily injury by pointing a firearm at him.” At trial, the State presented

evidence to show that on November 21, 2015, Terry and Carlene Pelton, owners of an

auto towing and recovery business, went to Appellant’s home to repossess a vehicle.

During the interaction, Appellant came out of his house, and when he was about ten to

twenty feet from Terry, pulled a black semi-automatic pistol out from behind his back. He

pointed it at Terry’s chest and told him, “You ain’t taking this car, you son of a bitch.”

Carlene called 911 to report the incident. Carlene then saw Appellant take the gun inside

the house.


        Officers responded to the 911 call but decided not to arrest Appellant that day. An

investigator with the Brown County Sheriff’s Office subsequently contacted the Peltons

via telephone. The investigator took the information from the responding officers and his

conversation with the Peltons and prepared an affidavit in support of a search warrant to

seize evidence from Appellant’s home. On November 30, 2015, a magistrate issued a

search warrant based on that affidavit. The search warrant, which authorized officers to




        3 Originally appealed to the Eleventh Court of Appeals, this appeal was transferred to this court by

the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Eleventh Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.


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search for a handgun and handgun ammunition, was executed two days later on

December 2, 2015.


         When officers executed the search warrant, they found a black Baretta .22 caliber

semi-automatic handgun underneath Appellant’s mattress in his bedroom matching the

handgun described in the affidavit.4 It is this evidence Appellant sought to suppress in

his motion to the court. The court held a hearing after which it denied Appellant’s motion.

Following a jury trial, Appellant filed a Notice of Appeal seeking a review of the trial court’s

decision to deny that motion.


         ISSUE ONE—RELIABILITY AND CREDIBILITY OF CITIZEN-INFORMANT

         In Appellant’s first issue, he argues the trial court erred in denying his motion to

suppress because the affidavit on which the search warrant was issued “did not contain

sufficient facts to provide a substantial basis to determine that the information provided

by named citizen informers was inherently credible and reliable.” The State responds

that Appellant’s issue on appeal does not comport with his legal theories advanced to the

trial court and thus, he has forfeited this issue for appellate review. We agree with the

State.


         An issue on appeal must comport with the objection made at trial, and an objection

on one legal theory may not be used to support a different legal theory on appeal. Clark

v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Rezac v. State, 782 S.W.2d 869,

870 (Tex. Crim. App. 1990). Therefore, when an issue on appeal does not comport with



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         In addition, officers seized twelve other firearms, approximately 1900 rounds of ammunition,
suspected controlled substances, marijuana, and body armor.

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theories advanced at trial, an appellant forfeits his right to raise the new argument on

appeal. Clark, 365 S.W.3d at 339.


        At the hearing on his motion to suppress, Appellant relied on his written brief,

advancing three theories on which he argued the affidavit supporting the search warrant

was insufficient: (1) that the search warrant is conclusory and does not provide probable

cause; (2) that it is stale; and (3) that the “search warrant itself finds facts sufficient to find

probable cause to allow the home to be searched for controlled substances, but yet orders

the home to be searched for firearms and ammunition, which is basically a variance and

a defective issue on the search warrant . . . .”5 None of these three theories challenge

the reliability and credibility of the Peltons. Because the issue raised at trial does not

comport with the issue raised on appeal, Appellant has forfeited this issue for appellate

review. We overrule Appellant’s first issue.


        ISSUE TWO—STALENESS

        In Appellant’s second issue, he contends the trial court erred in overruling his

motion to suppress because the facts set out in the affidavit on which the search warrant

was issued had become stale by the time the warrant was issued. The State responds

that under the facts of this case, the facts on which the search warrant affidavit relied had

not become stale and therefore, the trial court did not err.



        5 While the Search and Arrest Warrant does state that the magistrate finds the affidavit in support
of the warrant to contain “information sufficient to establish probable cause for the issuance of this warrant
to search for and seize the said controlled substances,” (emphasis added) it goes on to state “YOU ARE
THEREFORE COMMANDED TO FORTHWITH SEARCH THE PLACE ABOVE NAMED AND DESCRIBED
WHERE THE SAID FIREARM and AMMUNITION, TO-WIT: a black semi-automatic handgun and handgun
ammunition . . . .” (emphasis in original). Inadvertent mistakes such as this do not render the warrant
unenforceable. Rios v. State, 901 S.W.2d 704, 708 (Tex. App.—San Antonio 1995, no pet.). While
Appellant did raise this issue before the trial court below, he does not raise that issue of appeal.

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       A trial court’s ruling on a motion to suppress is subject to review on appeal for

abuse of discretion. Jarnagin v. State, 392 S.W.3d 223, 226-27 (Tex. App.—Amarillo

2012, no pet.) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). The

trial court’s ruling will be upheld if it is reasonably supported by the record and is correct

under any theory of law applicable to the case. Id. (citing Amador v. State, 275 S.W.3d

872, 878-79 (Tex. Crim. App. 2009)). When reviewing a decision by a judge or magistrate

to issue a search warrant, we apply the deferential standard of review set forth by the

United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 236 (1983). Id. (citing

Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)). Under that standard, we

uphold the probable cause determination “so long as the magistrate had a substantial

basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing.” Id. (citing

Gates, 462 U.S. at 236).         “Probable cause exists when, under the totality of

circumstances, there is a ‘fair probability’ that contraband or evidence of a crime will be

found at the specified location.” Id. (citations omitted). The “facts submitted for the

magistrate's probable cause determination are those contained within the four corners of

the affidavit, which facts are to be read in a common-sense and realistic manner.” Id.

(citing Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006); Cassias v. State, 719

S.W.2d 585, 587 (Tex. Crim. App. 1986); TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West

2010) (“A sworn affidavit setting forth substantial facts establishing probable cause shall

be filed in every instance in which a search warrant is requested.”)). Further, our review

recognizes a magistrate may draw reasonable inferences from the facts set forth in the

affidavit. Id. (citing Rodriguez, 232 S.W.3d at 61). “When in doubt about the propriety of

the magistrate’s conclusion, we defer to all reasonable inferences the magistrate could



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have made.” Id. (citing Rodriguez, 232 S.W.3d at 61; State v. McLain, 337 S.W.3d 268,

271 (Tex. Crim. App. 2011) (applying standard)).


       With regard to staleness, the facts submitted to the magistrate in support of a

search warrant must justify a conclusion that the object of the search is probably on the

premises to be searched at the time the warrant is issued. Jarnagin, 392 S.W.3d at 228

(citing McKissick v. State, 209 S.W.3d 205, 214 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref'd)).   The Court of Criminal Appeals has stated that the “proper method to

determine whether the facts supporting a search warrant have become stale is to

examine, in light of the type of criminal activity involved, the time elapsing between the

occurrence of the events set out in the affidavit and the time the search warrant was

issued.” Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011) (citing McKissick,

209 S.W.3d at 214; Gonzales v. State, 761 S.W.2d 809, 813 (Tex. App.—Austin 1988,

pet. ref’d)). The Court in Crider also quoted the Tenth Circuit’s explanation that:


       Probable cause is not determined by merely counting the number of days
       between the time of the facts relied upon and the warrant's issuance. The
       significance of the length of time between the point probable cause arose
       and when the warrant issued depends largely upon the property's nature,
       and should be contemplated in view of the practical considerations of
       everyday life. The test is one of common sense.



Crider, 352 S.W.3d at 707, n.9 (citing United States v. Brinklow, 560 F.2d 1003, 1005-06

(10th Cir. 1977)).


       In the case before us, the incident occurred on November 21, 2015, and the

warrant was issued on November 30, 2015; therefore, nine days elapsed between the

two. The property at issue was a firearm. The facts set forth in the affidavit, written by a

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narcotics officer in the Brown County Sheriff’s Office with fourteen years of experience,

show a single, nonrecurring crime occurring on a specific occasion rather than an ongoing

or continuous enterprise. Furthermore, the object of the search warrant was a tangible,

non-consumable object not likely to be discarded, disposed of, or physically altered.

Under those circumstances, “the question to be considered is how long after that time or

date evidence of that single crime can be expected to remain at the scene.” Ponce v.

State, No. 02-14-00409-CR, 2015 Tex. App. LEXIS 7670, at *5 (Tex. App.—Fort Worth

July 23, 2015, no pet.) (mem. op., not designated for publication) (citing Crider, 352

S.W.3d at 707-08).


       The Court in Crider set forth four factors to consider in making this determination:

(1) the type of crime; (2) the type of suspect, whether a “nomadic traveler, entrenched

resident, or established ongoing businessman”; (3) the type of item to be seized, whether

it be “perishable and easily transferred . . . or of enduring utility to its holder”; and (4) the

place to be searched, that is whether it is “a mere criminal forum of convenience or secure

operational base.” Crider, 352 S.W.3d at 708 (citations omitted). Therefore, in certain

situations “it may be reasonable under all the circumstances to presume that [the relevant

items] are still where they once were—even after a considerable lapse of time.” Gonzales

v. State, 761 S.W.2d at 813 (collecting cases holding information in affidavit was not stale

even after as much as two years elapsed).


       Given the circumstances of this case, we find the facts alleged in the probable

cause affidavit are sufficient to justify the conclusion that the firearm and ammunition

sought to be seized would probably be found at Appellant’s residence. The offense

involved was aggravated assault with a deadly weapon, to-wit: a gun. Appellant was a

                                               7
resident of the home where the incident occurred. The affidavit included the information

that the residence was Appellant’s and he was found there on November 21, in

possession of a firearm. The item sought to be seized, the gun, is of a type that is of

“enduring utility” to its owner. See, e.g., United States v. Sharkey, No. 03-6104, 2004

U.S. App. LEXIS 24214, *13-14 (6th Cir. Nov. 18, 2004) (agreeing with magistrate’s

conclusion that firearms are things of enduring utility and not perishable); United States

v. Crowe, No. 5:15-CR-106-DCR-REW, 2016 U.S. Dist. LEXIS 35368, *20-21 (E.D.

Kentucky March 4, 2016) (collecting cases characterizing firearms as items of enduring

utility to the holder). Carlene told officers she saw Appellant take the gun back into the

home after the altercation. The deputy who prepared the search warrant affidavit averred

that Appellant’s criminal history indicated past offenses involving firearms and guns. In

fact, Appellant would not have been legally permitted to possess a firearm until August

26, 2018, (almost three years subsequent to the date of the offense) due to past felony

convictions. The affiant was that of an experienced officer of fourteen years and he

opined that the firearm would be found at Appellant’s residence, particularly given

Appellant’s criminal history involving firearms.    The information from the responding

officers and the information from the telephone conversation with the Peltons was

received within nine days of the issuance of the warrant. The nine-day time period was

not so significant as to render the information contained in the affidavit stale. See, e.g.,

United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986) (concluding ten-day period

between the time defendant was seen carrying a revolver and issuance of the warrant

was not so long that the information contained in the affidavit had become stale. The

Court noted also that “[a]lthough the criminal activity alleged in the affidavit was not of a



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continuous and ongoing nature, the nature of the property to be seized and the place to

be searched make the ten-day delay inconsequential.”).


         Under these circumstances, giving due regard to the reasonable inferences that

can be drawn from the facts set forth in the affidavit, we find it reasonable for the

magistrate to have concluded, at the time the warrant was issued, that the handgun and

ammunition referenced in the warrant would still be located in Appellant’s residence.

Thus, the information in the affidavit was not stale and the trial court did not err in denying

Appellant’s motion to suppress. We resolve Appellant’s second issue against him.


         CONCLUSION

         Having overruled each of Appellant’s issues, we affirm the judgment of the trial

court.




                                                   Patrick A. Pirtle
                                                        Justice


Do not publish.




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