      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00272-CR




                     Lehi Barlow Jeffs aka Lehi Barlow Allred,, Appellant

                                                  v.

                                   The State of Texas, Appellee



  FROM THE DISTRICT COURT OF SCHLEICHER COUNTY, 51ST JUDICIAL DISTRICT
      NO. 1000, THE HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Lehi Barlow Jeffs aka Lehi Barlow Allred, pleaded no contest to an

indictment accusing him of sexually assaulting a child. See Tex. Penal Code Ann. § 22.011(a)(2)(A)

(West 2011). The district court adjudged him guilty and assessed punishment at eight years’

imprisonment, in accordance with a plea bargain agreement. Appellant brings forward twenty-five

points of error. The first twenty-one points assert that the trial court erred by denying his pretrial

motion to suppress evidence. The remaining four points complain about the trial court’s denial of

his motion to quash the indictment. We affirm the conviction.


                                       I. BACKGROUND

               The YFZ (Yearning for Zion) Ranch is a 1,691-acre property near Eldorado in

Schleicher County. More than two hundred persons lived on the ranch in 2008, all of them members
of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Among the structures

on the property were a temple and a temple annex, nineteen residential buildings, a school, a clinic,

a warehouse, a water treatment plant, and several commercial buildings. County tax records

reflected that the land and improvements were owned by a single entity, YFZ Land, LLC. The ranch

property was not subdivided, and there was no evidence that any of the buildings were owned or

leased by an individual. The ranch was fenced, and access to the property was controlled by a locked

gate, a manned guard house, and observation points.

               On March 29 and 30, 2008, six telephone calls were received by the New

Bridge Family Shelter Crisis Hotline in San Angelo from a person who identified herself as

Sarah Jessop Barlow. She told the shelter workers that she was sixteen years old, pregnant, and the

mother of an eight-month-old infant daughter. She said that she lived at the YFZ Ranch and was the

fourth wife of Dale Barlow, who she said was sexually and physically abusive to her. She said that

she wanted to leave the ranch, but she was afraid of the punishment she would receive if she were

caught trying to escape.

               The trial court found, and appellant does not dispute, that the hotline employees who

took the March 29 and 30 telephone calls believed that they were genuine. In truth, however, the

calls were a hoax. There was no sixteen-year-old mother named Sarah Jessop Barlow. Instead, the

calls were made by a woman named Rozita Swinton, a resident of Colorado, who apparently made

the calls from that state. The hoax was not discovered until April 13, 2008.

               The calls to the shelter hotline were immediately reported to the department of family

and protective services (DFPS) office in San Angelo and to Schleicher County Sheriff David Doran.



                                                 2
In turn, Doran reported the calls to Texas Ranger Brooks Long. On April 1, Long received the call

notes from the shelter. He also received documents showing that in August 2007 a Dale Barlow had

been placed on probation for three years following a conviction in Arizona for conspiring to commit

sexual assault of a minor. On April 2, Long interviewed the shelter workers who had taken the calls,

and on April 3, he received their signed affidavits describing the contents of the calls. Long applied

for a search and arrest warrant later that day. In summary, Long’s probable cause affidavit stated:


       • Long had been on the premises of the YFZ Ranch on several occasions and had
       observed the fences, guard house, and other security measures limiting access to the
       ranch. Long had spoken to Frederick Merril Jessop, who identified himself as the
       “authority” at the ranch and the “point of contact” for law enforcement and other
       government officials who wanted access to the ranch. Jessop had told Long that
       approximately one hundred persons lived on the ranch.

       • On April 2, 2008, Long interviewed Alisa Thomas and Jessica Carroll, employees
       of the New Bridge Family Shelter in San Angelo. As part of their duties at the
       shelter, Thomas and Carroll answered telephone calls to the “crisis hotline” available
       for those persons in need of the shelter’s assistance.

       • Thomas told Long that on March 29, 2008, she had a forty-two minute conversation
       on the crisis hotline with a female caller who identified herself as Sarah. Sarah told
       Thomas that she was born on January 13, 1992, had an eight-month-old child, and
       was pregnant. She said that she and her child lived with her husband, the father of
       her child, on a ranch in Eldorado. Sarah told Thomas that her husband hits her and
       that she would get in trouble if anyone learned that she had called.

       • Carroll told Long that on March 29 and 30, 2008, she had multiple telephone
       conversations on the crisis hotline with a caller who identified herself as Sarah
       Barlow, maiden name Sarah Jessop. Sarah told Carroll that she was sixteen years
       old, pregnant, and the mother of an eight-month-old child. She identified her
       husband and the father of her child as Dale Barlow, age forty-nine. She said that she
       lived with Barlow at the YFZ Ranch. She said that Barlow was physically and
       sexually abusive to her. Sarah said that she wanted to escape from the ranch with her
       child but was afraid to try because of the guard house at the gate. She said that if she
       were caught trying to leave the ranch she would be locked in her room and denied
       food. Sarah also described her fear of the outside world, saying that she had been

                                                  3
       told that outsiders would hurt her. During one of the calls on March 29, Sarah told
       Carroll that she wanted Carroll to forget she had called.

       • Given Sarah’s age and the age of her child, Long believed that Dale Barlow had
       penetrated Sarah’s sexual organ with his sexual organ when Sarah was fifteen years
       old. Long said he “knows of no provision under Texas law for lawful marriage at the
       age of fifteen.”

       • Long confirmed through the sheriff that a Dale Barlow, born November 5, 1957,
       had been arrested in Arizona in July 2005 for conspiracy to commit sexual conduct
       with a minor. In August 2007, Barlow had been placed on three years’ probation for
       this offense.

       • Long believed that Sarah Jessop, her child, and Dale Barlow were currently located
       at the YFZ Ranch. Long also believed that medical records and other information
       relevant to the age and true identity of Sarah Jessop, the birth of her child, and her
       marriage to Dale Barlow could be found at the ranch.


At 5:50 p.m. on April 3, 2008, the judge of the 51st District Court, sitting as a magistrate, signed a

warrant to search the YFZ Ranch for records relating to the age and identity of Sarah Jessop,

any pregnancy or child of Sarah Jessop, any marriage of Sarah Jessop to any party including

Dale Barlow, and any marriage of Dale Barlow to any party, including Sarah Jessop. The warrant

also ordered Barlow’s arrest.

               Also on April 3, the DFPS filed a petition in the 51st District Court for an order in

aid of investigation of a report of child abuse. See Tex. Fam. Code Ann. § 261.303 (West 2008).

Attached to the petition was the affidavit of Ruby Gutierrez, a department caseworker, describing

the calls to the hotline and Dale Barlow’s Arizona conviction. A few minutes after signing the first

warrant, the judge signed an order giving the department investigatory access to Sarah Jessop Barlow

and her infant daughter at the YFZ Ranch.




                                                  4
                Later that evening, Texas Rangers and other police officers acting under the search

warrant and DFPS caseworkers acting under the order for investigation entered the YFZ Ranch. The

caseworkers immediately began a process of interviewing every female on the ranch between the

ages of seven and seventeen. During these interviews, several of the girls reported being married

to, and mothers of children with, adult men who lived at the ranch. Some of them also stated that

the men to whom they were married had other wives. On the morning of April 4, the police

began a structure-by-structure search of the ranch pursuant to the first warrant. They did not find

Sarah Jessop Barlow and her infant daughter, nor did they find Dale Barlow.1 They did, however,

observe evidence—several beds in the temple and marriage records—tending to confirm the girls’

descriptions of underage sexual activity and bigamy.

                On April 6, 2008, Long applied to the judge of the 51st District Court for a second

search warrant. The complete probable cause portion of Long’s April 6 affidavit is attached as an

appendix to this opinion. In summary, the affidavit stated:


         • Long had been on the premises of the YFZ Ranch on several occasions, most
         recently on April 4, 5, and 6, 2008, and had observed the fences, guard house,
         and other security measures limiting access to the ranch. Long had spoken to
         Frederick Merril Jessop, who identified himself as the “authority” at the ranch and
         the “point of contact” for law enforcement and other government officials who
         wanted access to the ranch. Jessop had told Long on April 4 that approximately
         two hundred fifty persons lived on the ranch.

         • On April 5, 2008, while conducting a search of the ranch pursuant to the first
         warrant, Long saw computers, vaults, and locked drawers inside the temple and
         temple annex. He also saw several beds in the temple, in one of which the linens
         were disturbed and there was a strand of what Long believed, due to its length, was


   1
       The evidence shows that Barlow was living in Arizona at the time.

                                                 5
       female hair. He also saw a document indicating marriages between one man and
       over twenty wives.

       • On April 6, 2008, Long spoke to three DFPS employees, Tina Martinez, Ruby
       Gutierrez, and Rebecca Baxter. Between April 4 and 6, Martinez, Gutierrez, and
       Baxter had interviewed eight juvenile females living at the YFZ Ranch. During these
       interviews, the girls stated that they were in plural marriages with men at the ranch
       or knew others girls who were. They also stated that they or girls they knew at the
       ranch had given birth at age sixteen or younger.

       • On April 6, 2008, Sheriff Doran told Long that all the residents of the YFZ Ranch
       are members of the FLDS. Doran also told Long that on April 5, 2008, Doran spoke
       to a confidential informer who was a former FLDS member and who had given
       Doran accurate information about the FLDS on more than twenty prior occasions.
       The informer told Doran that adult male FLDS members practice polygamy, that their
       brides are often under the age of sixteen, and that there was a bed in the temple in
       which the men engage in sexual activity with the underage brides.


The judge signed the second warrant at 10:15 p.m. on April 6. The warrant ordered a search of the

YFZ Ranch for evidence of marriages between females under the age of seventeen and adult

males, and of pregnancies and births by females under the age of seventeen. The warrant was

executed immediately.

               Appellant and nine other individuals living at the YFZ Ranch were subsequently

indicted for sexual assault of a child and bigamy. With the district court’s permission, the

ten defendants filed a joint motion to suppress evidence. Following a four-day hearing at which all

the defendants were represented by counsel, the motion was denied. Also with the district court’s

permission, the ten defendants filed a joint motion to quash the indictment. Following an

eleven-hour hearing at which all the defendants were represented by counsel, the trial court denied

the motion.




                                                6
                Appellant subsequently entered his plea to the sexual assault indictment and was

convicted. This appeal followed.2


                           II. MOTION TO SUPPRESS EVIDENCE

                Appellant contends that the search of the YFZ Ranch pursuant to the April 6 warrant

violated his rights under the First and Fourth Amendments, article I, section 9, and article 38.23. See

U.S. Const. amends. I, IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (West

2005). He urges that the evidence seized during this search, which “revealed the identity of

Appellant Jeffs and the evidence offered against him in the court below,” should have been

suppressed. Appellant also contends that his constitutional and statutory rights were violated by the

initial search of the ranch pursuant to the April 3 warrant and the interviews conducted by DFPS

caseworkers pursuant to the order in aid of investigation. He argues that the information obtained

during the April 3 search and interviews was improperly used as “the basis for [the] second [April

6] search warrant which resulted in the seizure of the evidence used against Appellant Jeffs.”

Appellant’s reply brief adds, “What [Jeffs] has sought to suppress is the evidence seized pursuant

to the second search warrant . . . .”

                A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion.

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). This means that the ruling will be

upheld if it is reasonably supported by the record and is correct under any applicable legal theory.




   2
      Appellant also pleaded no contest to a bigamy indictment. His appeal from that conviction is
pending in this Court, as are appeals by other individuals who joined these motions and were
later convicted.

                                                  7
Id. The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight

to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give the trial court almost complete

deference in determining historical facts, but we review de novo the trial court’s application of the

law to those facts. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Carmouche

v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).


                                        DFPS INTERVIEWS

                In points of error one, two, three, and sixteen, appellant contends that the interviews

of the juveniles at the YFZ Ranch by DFPS caseworkers violated the Fourth Amendment, article I,

section 9, and article 38.23 because (1) the petition for the order in aid of investigation contained a

material misstatement of fact regarding the department’s compliance with the statutory prerequisites

for obtaining the order; (2) the petition relied on information, specifically the phone calls to the

family shelter hotline, obtained in violation of criminal statutes; and (3) the DFPS caseworkers

exceeded the scope of their authority under the order by interviewing every female resident of the

YFZ Ranch between the ages of seven and seventeen. In points of error four, five, and six, appellant

contends that information obtained during the DFPS interviews was the fruit of these constitutional

and statutory violations, was improperly used in the April 6 probable cause affidavit, and should be

disregarded in determining whether there was probable cause to issue the April 6 warrant. We

overrule all of these points because we conclude that appellant does not have standing to contest the

legality of the interviews.




                                                    8
                  The rights secured by the Fourth Amendment and article I, section 9 are personal.

See Rakas v. Illinois, 439 U.S. 128, 139 (1978); Richardson v. State, 865 S.W.2d 944, 948-49 (Tex.

Crim. App. 1993). A defendant seeking to suppress evidence on the ground that it was obtained in

violation of the Fourth Amendment or article I, section 9 must show that he personally had a

reasonable expectation of privacy that the government violated. Rakas, 439 U.S. at 139-40; Handy

v. State, 189 S.W.3d 296, 299 (Tex. Crim. App. 2006); Kothe v. State, 152 S.W.3d 54, 59 (Tex.

Crim. App. 2004); Richardson, 865 S.W.2d at 948-49. The same standing requirement obtains under

article 38.23. Fuller v. State, 829 S.W.2d 191, 202 (Tex. Crim. App. 1992).

                  To establish his standing at the suppression hearing, appellant filed an affidavit

stating:


           My name is Lehi Barlow Jeffs . . . . I resided on the YFZ Ranch in Schleicher
           County, Texas on April 3, 2008 and on April 6, 2008, when law enforcement officers
           and agents of the State of Texas entered the YFZ Ranch, located at 2420 County
           Road 300 (Rudd Road), Eldorado, Texas 76936, and searched. The search included
           my personal belongings, including clothing, my furniture, my household goods, my
           personal possessions, my books, my photographs, my records, my computers,
           cameras, my vehicle and computer equipment and computer storage devices, and my
           personal documents. Numerous items belonging to me were seized during
           the searches of April, 2008, including my photographs, my computers, my computer
           equipment, my computer storage devices, cameras, my vehicle, evidence and
           my papers.

           I have been a member of the [FLDS] all my life. Beginning April 3 and April
           6, 2008, and continuing for several days, law enforcement officers and agents of the
           State of Texas entered various Buildings, Outbuildings, Church buildings, including
           the Temple and the Temple Annex, Bishop’s Office, Bishop Scrib, and the Big
           House, on the YFZ Ranch, and seized computers, computer equipment, computer
           storage devices, religious records, papers, documents, books, cameras, my vehicle
           and other items containing information about me. I was the victim of the unlawful
           entry on to the YFZ Ranch, located at 2420 County Road 300 (Rudd Road),
           Eldorado, Texas, 76936, and searches incident therero on the YFX Ranch that began

                                                    9
       on April 3 and April 6, 2008, and that resulted in the seizure of evidence and other
       items containing information about me.


Although the State does not question appellant’s showing of standing to contest the validity of the

searches conducted pursuant to the April 3 and 6 warrants, the State contends that appellant failed

to establish his standing to challenge the interviews conducted by the DFPS caseworkers acting

pursuant to the order in aid of investigation. The State argues that appellant failed to show that he

had a reasonable expectation of privacy that was invaded by the interviews.

               Responding to the State’s argument, appellant concedes that he does not have

vicarious standing to invoke the rights of the juveniles who were interviewed by the DFPS

caseworkers. He asserts, however, that this is of “no consequence” because his challenge to the

manner in which the interviews were conducted is merely “a predicate to the challenge of the

subsequent search warrant.” If by this appellant is asserting that he has standing to challenge the

DFPS interviews because those interviews provided information used to obtain the second search

warrant, the argument fails. For a defendant to have standing on a motion to suppress evidence, it

is not sufficient that he “claims prejudice only through the use of evidence gathered as a consequence

of a search or seizure directed at someone else.” Jones v. United States, 362 U.S. 257, 261 (1960);

see also Rakas, 439 U.S. at 132-33, 136-37 (rejecting “target” theory of standing); Fuller,

829 S.W.2d at 201-02 (holding that defendant did not have standing under art. 38.23 to object to

admission of evidence unlawfully obtained from another person). That information learned during

the DFPS interviews was used to obtain the second search warrant does not, in itself, give appellant

standing to challenge the legality of those interviews.



                                                 10
                Appellant further argues that he has standing to challenge the DFPS interviews

because they were the fruit of his unlawful detention, and that of others living on the ranch,

beginning on April 3 when the officers and caseworkers arrived to execute the first search warrant

and the order in aid of investigation. Appellant argues by analogy to Kothe. In that case, Kothe’s

automobile was stopped by an officer who suspected that the driver, Kothe, was intoxicated. Kothe,

152 S.W.3d at 58. The officer quickly satisfied himself that Kothe was not intoxicated, but he

continued to detain Kothe and ultimately found drug paraphernalia in the car and heroin on the

person of Kothe’s passenger, Brantley. Id. Kothe moved to suppress the heroin, claiming that his

continued detention after the officer determined that he was not intoxicated was constitutionally

unreasonable. The trial court granted the motion to suppress and the State appealed, urging that

Kothe did not have standing to challenge the search of Brantley. Id. The court of criminal appeals

held that while Kothe did not have a reasonable expectation of privacy in the balloons of heroin

secreted in Brantley’s clothing, he did have standing to challenge his own detention and any fruits

of that detention, which under those facts included the search of Brantley. Id. at 60-62.

                Kothe is distinguishable from the instant case. As the court of criminal appeals noted

in Kothe, it is critical to identify the precise government conduct being objected to, because this will

often be determinative of the standing issue. Id. at 60. Kothe’s Fourth Amendment claim was based

upon a purportedly prolonged unlawful detention. In his points of error complaining of the DFPS

interviews, appellant contends that the interviews, and the information they revealed, were the fruit

of unlawful conduct by DFPS employees, to whom he argues the Fourth Amendment applies. See

Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 401 (5th Cir. 2002). He contends



                                                  11
that DFPS agents violated the Fourth Amendment, and also article I, section 9 and article 38.23, by

making a false statement of material fact and using unlawfully obtained evidence in their petition

for order in aid of investigation, and by thereafter exceeding the scope of their authority under the

order. Unlike Kothe, appellant’s contentions are not based on any assertion that he was unlawfully

detained on April 3, and they do not require a determination as to whether or not appellant was

unlawfully detained in order to be resolved.

                The order in aid of investigation directed the “parent or person responsible” for the

care of Sarah Jessop Barlow and her infant daughter to “immediately allow an authorized

representative of the Department of Family and Protective Services to enter . . . [the YFZ Ranch] to

interview and examine the children . . . .” Appellant did not claim to be the parent or person

responsible for the care of any of the children interviewed by the DFPS caseworkers. In his affidavit

in support of standing, appellant affirmed that he was a resident of the YFZ Ranch and a member

of the FLDS, that his personal residence was searched and his personal property was seized, and that

FLDS premises were searched and church property was seized. Appellant’s challenges to the

manner in which the DFPS obtained the order in aid of investigation and to the scope of the

interviews conducted by its caseworkers under the order are not based on any allegation that the

conduct complained of violated appellant’s asserted privacy interests or that the interviews were a

fruit of a violation of those interests.

                Points of error one through three and, as applied to the DFPS order, points of error

four through six and sixteen are overruled.




                                                 12
                                 APRIL 3 SEARCH WARRANT

                In points of error seven through twelve, sixteen, and seventeen through nineteen,

appellant contends that the search of the YFZ Ranch pursuant to the April 3 search warrant violated

the Fourth Amendment, article I, section 9, and article 38.23 because (1) the probable cause affidavit

on which the warrant was based contained material misstatements and omissions of fact; (2) the

telephone calls to the family crisis hotline on which the affidavit relied were not credible and did not

support a finding of probable cause to believe that a crime had been committed; (3) the telephone

calls to the shelter hotline were obtained in violation of criminal statutes; and (4) the warrant was

general and overbroad. In points of error four, five, and six, appellant contends that information

obtained during the first search was tainted by these constitutional and statutory violations, was

improperly used in the April 6 probable cause affidavit, and should be disregarded in determining

whether there was probable cause to issue the April 6 warrant. We do not address the merits of

appellant’s challenges to the April 3 search, however, because the information gathered during the

search was not critical to a finding of probable cause to issue the April 6 warrant.

                In his April 6 probable cause affidavit, Long stated that while conducting a search of

the ranch pursuant to the first warrant, he saw computers, vaults, and locked drawers inside the

temple and temple annex. He also saw several beds in the temple, in one of which the linens were

disturbed and there was a strand of what Long believed, due to its length, was female hair. He also

saw a document indicating marriages between one man and over twenty wives. Even if that

information is redacted from the April 6 affidavit, what remains—the information gathered during

the DFPS interviews and received from the confidential informer—was more than sufficient to give



                                                  13
the magistrate a substantial basis for concluding that there was probable cause to believe that

the offenses of sexual assault of a child and bigamy had been and were being committed at the

YFZ Ranch and to issue a warrant to search for evidence of those offenses. See Illinois v. Gates,

462 U.S. 213, 236-37 (1983) (decision to issue warrant will be sustained if magistrate had substantial

basis for concluding that probable cause was shown); State v. Delagarza, 158 S.W.3d 25, 29 (Tex.

Crim. App. 2005) (same); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004) (same);

State v. Davila, 169 S.W.3d 735, 738 (Tex. App.—Austin 2005, no pet.) (same).

                 Accordingly, points of error four through six (as applied to the April 3 warrant), seven

through twelve, sixteen (as applied to the April 3 warrant), and seventeen through nineteen

are overruled.


                                      FRANKS v. DELAWARE

                 In points of error thirteen, fourteen, and fifteen, appellant contends that the evidence

seized during the April 6 search should have been suppressed because material facts were omitted

from the April 6 probable cause affidavit. 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). Although appellant also cites article I, section 9 of the Texas Constitution and article 38.23,

he does not separately argue his state claims or present any argument asserting that these provisions

afford him greater protections than the Fourth Amendment as construed in Franks. Accordingly,


                                                   14
these state law contentions present nothing for review. See Manns v. State, 122 S.W.3d 171,

192 n.97 (Tex. Crim. App. 2003).

                By its express terms, the holding in Franks applies only to affirmative misstatements

contained in a probable cause affidavit. Neither the Supreme Court nor the court of criminal appeals

has held that Franks applies to omissions of fact, although several lower courts have so held. See

Darby v. State, 145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d) (collecting

cases); see also Massey v. State, 933 S.W.2d 141, 146 n.3 (Tex. Crim. App. 1996) (“This

Court has indicated that we might not recognize application of Franks to omissions of fact.”);

40 George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 9:26

(3d ed. 2011) (stating that omitted fact could be considered material under Franks if its inclusion

would render affidavit insufficient to show probable cause). For the purpose of this opinion, we will

assume without deciding that Franks does apply to omissions of fact.

                At a Franks hearing, it is the defendant’s burden to prove the alleged perjury or

reckless disregard for the truth by a preponderance of the evidence. Franks, 438 U.S. at 156. If the

defendant satisfies this burden, and if, with the false material set aside, the remainder of the affidavit

is insufficient to establish probable cause, the search warrant must be voided and the fruits of the

search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Id.

We review the trial court’s ruling on a Franks issue 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. Fenoglio



                                                   15
v. State, 252 S.W.3d 468, 473 (Tex. App.—Fort Worth 2008, pet. ref’d); see Johnson, 68 S.W.3d

at 652-53; Carmouche, 10 S.W.3d at 327.

                The facts appellant contends were omitted from the April 6 probable cause affidavit

are: (1) the sixteen-year-old caller who identified herself as Sarah Jessop Barlow was not found at

the ranch during the initial search, and (2) Dale Barlow, the person suspected of sexually assaulting

the caller, was located in Arizona before the first warrant was executed. Relevant to these omissions,

the trial court found:


        • Before the April 3 search warrant was executed, Sheriff Doran received a cell phone
        call from a person claiming to be Dale Evans Barlow. Doran told this caller to
        “contact the law enforcement where he [the caller] was located” within thirty
        minutes. Doran never received notice that the caller made such contact.

        • “[N]o credible evidence was introduced to support the . . . claim . . . that Ranger
        Long intentionally or knowingly or with reckless disregard for the truth omitted
        relevant information in his [April 6] probable cause affidavit[ ].”

        • “[N]o credible evidence was introduced to support the . . . claim . . . that Ranger
        Long acted in reckless disregard for the truth in preparing and presenting the [April
        6] probable cause affidavit[ ].”

        • “[N]o credible evidence was introduced to support the . . . claim . . . that Ranger
        Long entertained doubts, much less serious doubts, about the truth of the allegations
        in the [April 6] probable cause affidavit[ ].”

        • “[T]he Defendants failed to present credible evidence to support the claims . . . that
        the Ranger’s probable cause affidavits knowingly or intentionally contained either
        deliberate falsehoods, deliberate omissions or reckless disregard for the truth.”

        • “Ranger Long did not deliberately or recklessly omit information from either
        probable cause affidavit and . . . if there were any unintentional omission[s] their
        inclusion would not have resulted” in the magistrate’s refusing to issue the warrants.




                                                  16
In light of the trial court’s findings regarding the weight and credibility of the evidence adduced at

the Franks hearing, we hold that appellant did not show that Long omitted material facts from the

April 6 affidavit either deliberately or with a reckless disregard for the truth.

               Points of error thirteen, fourteen, and fifteen are overruled.


                                     RELIGIOUS FREEDOM

               In point of error twenty-one, appellant contends that the searches of the YFZ Ranch

violated his rights under the Free Exercise Clause of the First Amendment. In point of error twenty,

appellant contends that the searches violated the Texas Religious Freedom Restoration Act

(TRFRA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001-.012 (West 2011). That act provides

that a government agency may not substantially burden a person’s free exercise of religion unless

the agency demonstrates that the application of the burden is in furtherance of a compelling

governmental interest and is the least restrictive means of furthering that interest. Id. § 110.003(a),

(b). Appellant urges that information learned and evidence seized during the searches should have

been suppressed pursuant to article 38.23 as having been obtained in violation of the Free Exercise

Clause and TRFRA.

               The TRFRA defines “free exercise of religion” as “an act or refusal to act that is

substantially motivated by sincere religious belief.” Id. § 110.001(a)(1). The focus of the Act is on

the degree to which a person’s religious conduct is curtailed and the resulting impact on the person’s

religious expression. Barr v. City of Sinton, 295 S.W.3d 287, 301 (Tex. 2009). A person’s religious

exercise has been substantially burdened under the TRFRA when his ability to express adherence




                                                  17
to his faith through a particular religiously motivated act has been meaningfully curtailed or he has

otherwise been significantly pressured to modify his conduct. Id. at 302.

               The Supreme Court has said that the Fourth Amendment “must not be read in a

vacuum,” and that “[a] seizure reasonable as to one type of material in one setting may be

unreasonable in a different setting or with respect to another kind of material.” Roaden v. Kentucky,

413 U.S. 496, 501 (1973). Citing Roaden, appellant argues that a magistrate should take into

consideration the values protected by the Free Exercise Clause before issuing a warrant to search a

place of religious worship. In Roaden, the Supreme Court held only that the police may not rely on

the exigency exception to the Fourth Amendment warrant requirement to make a seizure of allegedly

obscene materials. Id. at 506. The Court has eschewed “any suggestion that the standard of probable

cause in the First Amendment area is different than in other contexts . . . .” New York v. P. J. Video,

475 U.S. 868, 875 (1986). Instead, “the seizure of materials presumptively protected by the

First Amendment should be evaluated under the same standard of probable cause used to review

warrant applications generally.” Id.

               Appellant does not point to evidence that would support a finding that the searches

conducted at the YFZ Ranch curtailed his ability to express adherence to his faith through a

particular religiously motivated act or that the searches otherwise pressured him to modify his

religious conduct. Similarly, appellant has not shown that the searches at issue limited his First

Amendment right to freely exercise his religious faith. Because the searches were not shown to

violate the Free Exercise Clause or TRFRA, we overrule points of error twenty and twenty-one.




                                                  18
                       III. MOTION TO QUASH THE INDICTMENT

               In his last four points of error, appellant challenges the trial court’s denial of his

motion to quash the indictment, which complained of impermissible grand jury procedures in

Schleicher County. He contends that the grand jury selection process systematically excludes

Hispanics and violates his equal protection, due process, and fair-cross-section rights under the

United States Constitution, his equal protection and due course of law rights under the Texas

Constitution, and various rights afforded an accused by the Texas Code of Criminal Procedure.

               In his argument, however, appellant provides authority only for the contentions in

regard to the United States Constitution. Because appellant does not provide separate authority

or argument for his state constitutional claims, we do not address them.3 See Berry v. State,

233 S.W.3d 847, 855 n.3 (Tex. Crim. App. 2007); Heitman v. State, 815 S.W.2d 681, 690-91 n.23

(Tex. Crim. App. 1991). In addition, because appellant proffers no argument or authority with

respect to his claims regarding the statutory violations, we consider them inadequately briefed and

as presenting nothing for our review. See Tex. R. App. P. 38.1(i); Aldrich v. State, 928 S.W.2d 558,

559 n.1 (Tex. Crim. App. 1996); Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004)

(failure to adequately brief issue, either by failing to specifically argue and analyze one’s position

or provide authorities and record citations, waives any error on appeal); see also Leza v State,

351 S.W.3d 344, 358 (Tex. Crim. App. 2011).




  3
    Further, appellant does not argue that the Texas Constitution provides more protection than the
United States Constitution, so we properly resolve this case under only the Fifth, Sixth, and
Fourteenth Amendments. See Flores v. State, 319 S.W.3d 697, 702 n.8 (Tex. Crim. App. 2010);
Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993).

                                                 19
                                    STANDARD OF REVIEW

               In this case, we apply a bifurcated abuse-of-discretion standard of review to the trial

court’s determination of whether to quash or set aside an indictment. See Thomas v. State,

621 S.W.2d 158, 163 (Tex. Crim. App. 1981); Haywood v. State, 344 S.W.3d 454, 461 (Tex.

App.—Dallas 2011, pet. ref’d); Kassem v. State, 263 S.W.3d 377, 384 (Tex. App.—Houston [1st

Dist.] 2008, no pet.); see also State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); Guzman,

955 S.W.2d at 89. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without

reference to guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990); Smith v. State, --- S.W.3d ----, 2012 WL 171694, *6 (Tex. App.—Austin Jan. 20, 2012,

no pet. h.); Taylor v. State, 255 S.W.3d 399, 401 (Tex. App.—Texarkana 2008, pet. ref’d).

               We acknowledge that the court of criminal appeals has held that an appellate court

should review a trial judge’s decision to deny a motion to quash an indictment de novo. See Smith

v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010); State v. Barbernell, 257 S.W.3d 248, 251

(Tex. Crim. App. 2008) (citing Moff, 154 S.W.3d at 601). However, we note that the de novo

standard of review has been applied primarily in cases involving motions to quash that complain

about the sufficiency of the charging instrument. See Smith, 309 S.W.3d at 13-14; Barbernell,

257 S.W.3d at 250-52; Moff, 154 S.W.3d at 600-01; State v. Rodgers, 214 S.W.3d 644, 647 (Tex.

App.—Eastland 2006, pet. ref’d). In State v. Moff, the court of criminal appeals held that the

sufficiency of an indictment is a question of law that should be reviewed de novo because the trial

court was not in a better position than the appellate court to make that determination. Moff,

154 S.W.3d at 601 (citing Guzman, 955 S.W.2d at 89).



                                                  20
               The instant motion to quash, however, does not challenge the sufficiency of the

indictment but rather the grand jury selection process that produced the grand jury that returned the

indictment. Before Moff, appellate courts applied an abuse-of-discretion standard when reviewing

decisions on motions to quash. See Moff, 154 S.W.3d at 601; Thomas, 621 S.W.2d at 163. We

believe the change in the standard of review in Moff applies only in situations where the resolution

of a question of law does not turn on an evaluation of the credibility and/or demeanor of a witness.

See Moff, 154 S.W.3d at 601. In this case, the trial judge’s decision was based on the motion to

quash, evidence presented at a hearing on the motion—including conflicting testimony and multiple

exhibits—and the argument of counsel, not merely the motion to quash, the indictment, and the

argument of counsel as in Moff. Thus, in this case, because she had the opportunity to evaluate the

credibility and demeanor of witnesses, the trial judge was in a better position than an appellate court

to decide this issue. See Moff, 154 S.W.3d at 601. Accordingly, we believe the deferential

abuse-of-discretion standard is the appropriate standard to apply in this case. See Hassan v. State,

346 S.W.3d 234, 238 (Tex. App.—Houston [14th Dist.] 2011, pet. granted); Haywood, 344 S.W.3d

at 461; Kassem, 263 S.W.3d 384; Rodgers, 214 S.W.3d at 647.

               Under an abuse-of-discretion review, the amount of deference we afford a trial

judge’s ruling “depends upon which ‘judicial actor’ is better positioned to decide the issue.” Moff,

154 S.W.3d at 601 (citing Guzman, 955 S.W.2d at 89). We afford almost total deference to a trial

court’s determination of historical facts that are supported by the record, particularly when those

findings are based on an evaluation of witness credibility and demeanor. Guzman, 955 S.W.2d at

89; Haywood, 344 S.W.3d at 461. We afford the same amount of deference to a trial court’s rulings



                                                  21
on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the

resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman,

955 S.W.2d at 89. When the resolution of a question of law does not turn on an evaluation of the

credibility and demeanor of a witness, the trial judge is in no better position than an appellate court

to make the determination, so we conduct a de novo review of the issue. Moff, 154 S.W.3d at 601;

Guzman, 955 S.W.2d at 89. Therefore, if a trial court’s determination of a motion to quash an

indictment turns on an evaluation of the credibility or demeanor of a witness, as in this case, we

apply an abuse-of-discretion standard when reviewing the trial court’s decision. Haywood,

344 S.W.3d at 461; Hassan, 346 S.W.3d at 238; see Moff, 154 S.W.3d at 601; Guzman, 955 S.W.2d

at 89.


                                     EQUAL PROTECTION

                An equal-protection violation occurs when the government purposefully excludes

certain identifiable groups from serving on a grand jury. Castaneda v. Partida, 430 U.S. 482, 494-95

(1977); Ovalle v. State, 13 S.W.3d 774, 777 (Tex. Crim. App. 2000). To establish a prima facie case

of an equal-protection violation, a defendant must show: (1) the particular group is a recognizable,

distinct class that has been singled out for different treatment under the laws; (2) the degree to which

the group was underrepresented by comparing the proportion of the group in the total population to

the proportion called to serve as grand jurors, over a significant period of time; and (3) the selection

procedure is susceptible to abuse. Partida, 430 U.S. at 494; Ovalle, 13 S.W.3d at 777. Once a

prima facie case of purposeful discrimination has been made, the burden shifts to the State to rebut

that case. Partida, 430 U.S. at 495; Ovalle, 13 S.W.3d at 777. If the discrepancy between the

                                                  22
expected number and the actual number of the excluded race serving on grand juries is less than

three standard deviations, the appellant fails to establish a prima facie case. Ovalle, 13 S.W.3d at

782; see Partida, 430 at 496 n.17.


                                     FAIR CROSS-SECTION

               The Sixth Amendment requires that the panel from which a grand jury or a petit jury

is selected represent a fair cross-section of the community.4 Taylor v. Louisiana, 419 U.S. 522,

528-29 (1975); Hernandez v. State, 24 S.W.3d 846, 851 (Tex. App.—El Paso 2000, pet. ref’d). To

establish a prima facie violation of the fair-cross-section requirement, a defendant must show:

(1) the group allegedly excluded is a distinctive group in the community, (2) the group is not fairly

represented on panels from which the juries are chosen, and (3) the underrepresentation results from

a systematic exclusion of the group in the jury selection process. Duren v. Mississippi, 439 U.S. 357,

364 (1979); Pondexter v. State, 942 S.W.2d 577, 580 (Tex. Crim. App. 1997); Hernandez,

24 S.W.2d at 851. Once a prima facie case has been made, the burden shifts to the State to rebut that

prima facie fair-cross-section violation by showing that the disproportionate exclusion manifestly

and primarily advances a significant governmental interest. Duren, 439 U.S. at 367-68; Aldrich,

928 S.W.2d at 560.

               The right to a fair cross-section of the community does not apply to the selection of

a particular jury, or grand jury, itself. Gray v. State, 233 S.W.3d 295, 300 (Tex. Crim. App. 2007);




   4
      We will assume, without deciding, that the Sixth Amendment constitutional right to a fair
cross-section applies to state grand juries, although neither the United States Supreme Court nor the
Texas Court of Criminal Appeals has so held.

                                                 23
see Holland v. Illinois, 493 U.S. 474, 483 (1990); Lockhart v. McCree, 476 U.S. 162, 173-74 (1986).

The Supreme Court has refused to extend the fair-cross-section requirement to the actual selection

of the petit jury, explaining that it had never used the “fair-cross-section principle” to demand that

petit juries, as opposed to venire panels, represent the community. Lockhart, 476 U.S. at 173-74.

“Defendants are not entitled to a jury of any particular composition.” Holland, 493 U.S. at 483

(citing Taylor, 419 U.S. at 538); Gray, 233 S.W.3d at 301. Thus, the Supreme Court has not

imposed a “requirement that petit juries actually chosen must mirror the community and reflect the

various distinctive groups in the population.” Taylor, 419 U.S. at 538 (internal citations omitted).

               The Sixth Amendment’s fair-cross-section requirement applies to the process by

which the venirepersons are summoned to jury duty. Gray, 233 S.W.3d at 301; see Pondexter,

942 S.W.2d at 580-81. In the grand jury context, the fair-cross-section requirement concerns the

process by which grand jurors are summoned to grand jury duty. Accordingly, it is the panels of

those summoned to grand jury duty, not those selected to serve on the grand jury itself, that must

fairly reflect the community. See Taylor, 419 U.S. at 538 (“the jury wheels, pools of names, panels,

or venires from which juries are drawn must not systematically exclude distinctive groups in the

community and thereby fail to be reasonably representative thereof”).


                                  GRAND JURY SELECTION

               In Texas, grand jurors may be selected using either a commissioner-based—or

“key-man”—system or using the random selection system used to select civil trial juries. See Tex.

Code Crim. Proc. Ann. art. 19.01 (West 2005); Ovalle, 13 S.W.3d at 778. Under the “key-man”

system, jury commissioners appointed by a district judge select and make a list of prospective grand

                                                 24
jurors. See Tex. Code Crim. Proc. Ann. arts. 19.01(a), 1906 (West Supp. 2011). The district judge

has discretion in appointing grand jury commissioners, and the commissioners, in turn, have

discretion in selecting persons to summon for the grand jury panel. Schleicher County uses the

“key-man” system.

               The Texas statutory scheme is not in itself unfair, “[b]ut by reason of the wide

discretion permissible in the various steps of the plan, it is [. . . ] capable of being applied in such

a manner as practically to proscribe any group thought by the law’s administrators to be

undesirable.” Smith v. Texas, 311 U.S. 128, 131 (1941). Consequently, the United States Supreme

Court has held that the commissioner-based system, while facially constitutional, is susceptible to

abuse. Partida, 430 U.S. at 497; Ovalle, 13 S.W.3d at 778.

               Appellant complains that “[t]he key man system is susceptible to abuse that occurs

on a number of levels within the process of the selection of the grand jury, in the choice of

commissioners, the panel members, and the forepersons.”5 He argues that the statistics show that

the judges and grand jury commissioners in Schleicher County have “exercised [their unfettered]

discretion in a manner that has consistently produced grand juries that under-represent Hispanics in


  5
    Although appellant complains that “the discretion-driven system deprives Hispanics of an equal
opportunity to serve as grand jury forepersons,” the court of criminal appeals, while acknowledging
the existence of adverse authority from some federal circuits, has held that so long as there has been
no purposeful exclusion from the grand jury as a whole, the race of the grand jury foreperson is of
no consequence because the foreperson’s duties are ministerial in nature and do not affect the
outcome of the grand jury’s decision. Mosley v. State, 983 S.W.2d 249, 255-56 (Tex. Crim. App.
1998); Rousseau v. State, 855 S.W.2d 666, 687-88 (Tex. Crim. App. 1993); see Hobby v. United
States, 468 U.S. 339, 344-46 (1984). As an intermediate appellate court, we follow the binding
precedent of the court of criminal appeals. Gonzales v. State, 190 S.W.3d 125, 130 n.1 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d); State v. Stevenson, 993 S.W.2d 857, 867 (Tex.
App.—Fort Worth 1999, no pet.).

                                                  25
a constitutionally significant manner.” He attacks the way the statutory method of grand jury

selection has been administered by both the judges and the jury commissioners throughout the

multiple stages of the grand jury selection process.


                        EVIDENCE OF UNDERREPRESENTATION

               During the eleven-hour hearing on his motion to quash, appellant presented evidence

consisting of Schleicher County grand jury lists for 1989 through 2008 (the preceding 20 years,

including the grand jury that returned appellant’s indictment), census materials from 2000, census

estimates from 2008, and expert testimony.6 However, for the reasons discussed below, the evidence

appellant presented showed no definitive demographic conclusions about the number of Hispanics

who served on grand juries during that time, the number of Hispanics called to serve on grand juries

(those on the panels summoned by the commissioners), or the number of Hispanics who were

eligible to serve as grand jurors.7 See Ovalle, 13 S.W. 3d 774, 779-80 & n.22.

               First, appellant relied upon Spanish surnames to determine whether or not individuals

were of Hispanic origin. The court of criminal appeals, however, has recognized that “[u]ncertainty

. . . inheres in the use of Spanish surnames to determine Hispanic origin.” Ovalle, 13 S.W.3d at 780.

We agree that relying on surnames is not a reliable indication of the heritage of individuals chosen



   6
      Appellant did not present any statistical evidence regarding the Hispanic population—total
population, adult population, or registered voter population—for the period of 1989 to 1999,
although he used grand jury data from that period to support his claim of underrepresentation.
   7
      We accept, and the State does not dispute, that Hispanics are “a recognizable, distinct class”
for equal protection purposes, see Partida, 430 U.S. at 495; Ovalle, 13 S.W.3d at 777-78, as well as
“a distinctive group in the community” for fair-cross-section purposes. See Aldrich, 928 S.W.2d at
560.

                                                 26
for grand jury service. In fact, this case demonstrates that very uncertainty and unreliability.

Testimony during the hearing on the motion showed that at least thirty-two individuals summoned

by the grand jury commissioners who appellant believed were non-Hispanic were known to be

Hispanic by either the district clerk or other county officials. Testimony at the hearing also revealed

that appellant mistakenly believed one of the individuals on appellant’s grand jury panel to be

Hispanic when in fact she was a non-Hispanic married to a Hispanic.

               Second, appellant presented multiple statistics to depict the Hispanic representation

on the grand juries. In his motion to quash, appellant relied upon the number of Hispanic grand

jurors who served, as well as Hispanic alternates selected. However, he omitted alternates in the

evidence presented at the hearing.8 Further, appellant presented multiple statistics to represent the

population of Hispanics eligible for grand jury service.9 In his motion, he relied on the percentage

of Hispanic registered voters in Schleicher County in 2008 and the percentage of Hispanics in the

adult population of Schleicher County in 2000. At the hearing, however, he relied upon the

percentage of Hispanics in the total population of Schleicher County in 2000, the percentage of

  8
     At times, however, appellant’s expert testified about statistics that he calculated using numbers
that included alternates.
  9
     The court of criminal appeals has concluded that the population of persons eligible to serve on
grand juries is a better baseline figure from which to gauge discrimination than the general
population. Ovalle, 13 S.W.3d at 779. As the court stated: “Using general population figures
requires making the assumption that they are similar enough to the eligible population figures to
yield an accurate comparison. In essence, one must assume that groups ineligible for jury service,
such as children and resident aliens, do not compose a disproportionate percentage of the Hispanic
population as compared to the non-Hispanic population. Given that Texas borders on Mexico,
however, there is at least some reason to believe that Census figures for Hispanics may include more
resident aliens than would be true of non-Hispanics, causing the figures for Hispanic population to
overstate the percentage of the population that is actually available for grand jury service.” Id. at
779-80.

                                                  27
Hispanics in the adult population of Schleicher County in 2000, as well as the percentage of

Hispanics in the total population of Schleicher County in 2008. While appellant’s expert testified

about significant changes in the Hispanic population in Schleicher County over the twenty-year

period, including significant increases in the population of Hispanic children, he did not provide

statistics incorporating or accounting for those changes. Appellant’s statistics also appear to have

failed to account for the number of foreign-born persons in Schleicher County, in either 2000 or

2008, which could affect eligibility to serve on a grand jury in terms of citizenship.10 See Tex. Code

Crim. Proc. art. 19.08 (West Supp. 2011) (to be qualified to serve as grand juror, person must be

citizen of state and county and qualified to vote in county); Tex. Elec. Code Ann. § 11.002(1), (2),

(5) (West Supp. 2011) (qualified voter must be 18 years of age or older, United States citizen, and

resident of this state).

                The trial court, relying on the various statistics presented to the court in the motion

and at the hearing, concluded that 22 of 72 grand jurors who served on the past six grand juries, or

30.55%, had Hispanic surnames or were identified as being Hispanic. She compared this to the 31%

of registered voters being Hispanic—a statistic appellant presented and relied on in his motion to

quash—and concluded that appellant failed to establish a prima facie case of underrepresentation.11

   10
      Two of the statistics noted by the trial court were the fact that 13.9% of the total population
of Schleicher County in 2000 was foreign born and that 40.6% of the households of Schleicher
County in 2000 were households where a language other than English was spoken in the home by
individuals over five years of age.
   11
      Because of the problems noted by the court of criminal appeals in using general population
figures, as well as the court’s recognition of groups ineligible for jury service, such as children and
resident aliens, see supra notes 7-8, we do not find the trial court’s use of the percentage of Hispanic
registered voters as representative of Hispanics eligible to serve on grand juries to be unreasonable.
See also Tex. Code Crim. Proc. Ann. art. 19.08 (West Supp. 2011) (to be qualified to serve as grand

                                                  28
The trial court did not include an analysis of the statistical deviation in her findings of fact and

conclusions of law. However, using the statistics relied upon by the court, the discrepancy between

the expected number and actual number of Hispanics serving on Schleicher County grand juries is

less than three standard deviations. Using the percentage of Hispanic registered voters as

representing the population of persons eligible to serve on grand juries, one would expect about

23 Hispanic persons to have served on the six grand juries.12            The standard deviation is

approximately four.13 Thus, the discrepancy between the expected number and the actual number

of Hispanics serving on Schleicher County grand juries is less than three standard deviations because

the actual number of Hispanics who served on the grand juries, 22, is more than eleven.14 If a

statistical showing of the discrepancy is less than three standard deviations, an appellant fails to

establish a prima facie case.15 Ovalle, 13 S.W.3d at 782; see Partida, 430 U.S. at 496 n.17.




juror, person must be citizen of state and county and qualified to vote in county); Tex. Elec. Code
Ann. § 11.002(a)(1), (2), (5) (West Supp. 2011) (qualified voter must be 18 years of age or older,
United States citizen, and resident of this state).
   12
        31% of 72 = 22.32.
   13
      Determined by finding the square root of the product of the total number in the sample (72)
times the probability of selecting a Hispanic person (0.31) times the probability of selecting a non-
Hispanic person (0.69), and rounding to the nearest whole number:                                        = 3.92. Se
Ovalle, 13 S.W.3d at 782 n.29; Partida, 430 U.S. at 496 n.17.
   14
        22.32 – (3.92 x 3) = 10.56. See Ovalle, 13 S.W.3d at 782 & n.22.
  15
     Appellant complains that the trial court improperly restricted her review to only the three years
prior to his indictment. However, we note that the court of criminal appeals, in an unpublished
opinion, held that an appellant failed to establish a prima facie case of underrepresentation based
upon statistics from the two-year period and eight most recent grand juries prior to an appellant’s
indictment. See Adams v. State, No. AP-75023, 2007 WL 1839845, *4-5 (Tex. Crim. App. 2007).

                                                 29
               Moreover, appellant complains of the grand jury selection process based on the

exercise of discretion by the judges and grand jury commissioners throughout the process, yet

supports his claim by narrowly focusing on those who served as grand jurors. The criticism of the

commissioner-based system is that it potentially allows discrimination to invade the process at

several points: first, when the district judge selects and appoints grand jury commissioners, see Tex.

Code of Crim. Proc. art. 19.01; second, when the grand jury commissioners select individuals to be

summoned for grand jury service, see id. art. 19.06; and third, when the district judge disqualifies

or excuses summoned individuals prior to impaneling the grand jury, see id. arts. 19.19, 19.21 (West

2005). Thus, logically, a review of any alleged underrepresentation of Hispanics based upon

discrimination in the grand jury selection process would, if possible, include a review of the

selections made at all three stages: the appointment of grand jury commissioners, the selection of

those summoned for grand jury panels, and the selection of impaneled grand jurors. Arguably, the

first two stages of the process are more susceptible to discrimination because the discretion is

unfettered, whereas in the final stage the exercise of the judge’s discretion is governed by statute.

See id. arts. 19.08 (qualifications of grand juror), 19.21 (requirement to test qualifications), 19.23

(mode of testing qualifications), 19.25 (excuses from service).

               A review of the selections made during the first stage—the appointment of grand jury

commissioners—does not reveal a statistically significant underrepresentation of Hispanics as grand

jury commissioners.16 The record reflects that from October 2000 to April 2008, 14 of the


   16
     To conduct our analysis of the three stages of the selection process, we review the grand jury
panels from October 2000 to April 2008, which are contained in the record. Except for October
1996 and October 1997, which we do not include in this analysis, the record does not contain

                                                 30
51 individuals selected by the district judges to serve as grand jury commissioners, or 27.45%, had

Hispanic surnames or were identified as being Hispanic. When compared to the percentage of

Hispanic registered voters, a disparity of 3.55% exists. Conducting an analysis of the standard

deviation, the discrepancy between the expected number and actual number of Hispanics chosen by

the judges to serve as grand jury commissioners is less than three standard deviations. Using the

percentage of Hispanic registered voters as representing the population of persons eligible to serve

as grand jury commissioners, one would expect about 16 Hispanic persons to have been selected to

serve as grand jury commissioners.17 The standard deviation is approximately three.18 So,

the discrepancy between the expected number and the actual number of Hispanics serving as

Schleicher County grand jury commissioners is less than three standard deviations because the actual

number of Hispanics appointed as grand jury commissioners, 14, is more than six.19 Once again, if

a statistical showing of the discrepancy is less than three standard deviations, the appellant fails to


information about any other grand jury panels. We obtain information about the grand jury
commissioners from these lists of grand jury panels. For the sake of a consistent comparison, we
use the same time frame—which we conclude represents a significant period of time—to review the
selected grand jurors.
        We note that there is additional information concerning the grand jury commissioners in the
record of the appeal of one of appellant’s co-defendants who joined in the motion to quash, which
the State cites in its brief. That information, however, was presented as evidence during a hearing
on a motion for new trial in that case, not the joint motion to quash. That record has not been filed
in the instant appeal and is, therefore, not in the record before us in this case.
   17
        31% of 51 = 15.81.
   18
      Determined by finding the square root of the product of the total number in the sample (51)
times the probability of selecting a Hispanic person (0.31) times the probability of selecting a
non-Hispanic person (0.69), and rounding to the nearest whole number:                                     = 3.30.
See Ovalle, 13 S.W.3d at 782 n.29; Partida, 430 U.S. at 496 n.17.
   19
        15.81 – (3.30 x 3) = 5.91. See Ovalle, 13 S.W.3d at 782 & n.22.

                                                  31
establish a prima facie case of an equal protection violation. Ovalle, 13 S.W.3d at 782; see Partida,

430 U.S. at 496 n.17.

                The record reflects that the selections made by grand jury commissioners during the

second stage do not demonstrate a statistically significant underrepresentation of Hispanics on grand

jury panels. From October 2000 to April 2008, 114 of the 432 individuals selected by the grand jury

commissioners, or 26.39%, had Hispanic surnames or were identified as being Hispanic. When

compared to the percentage of Hispanic registered voters, a disparity of 4.6% exists. Conducting an

analysis of the standard deviation, the discrepancy between the expected number and actual number

of Hispanics selected by the Schleicher County grand jury commissioners for grand jury panels is

less than three standard deviations.     Using the percentage of Hispanic registered voters as

representing the population of persons eligible to serve on grand juries, one would expect about

134 Hispanic persons to have been selected for the grand jury panels.20 The standard deviation is

approximately ten.21 Thus, the discrepancy between the expected number and the actual number of

Hispanics selected by grand jury commissioners for Schleicher County grand jury panels is less than

three standard deviations because the actual number of Hispanics summoned for the grand jury

panels, 114, is more than 106.22 Again, if a statistical showing of the discrepancy is less than three




   20
        31% of 432 = 133.92.
   21
      Determined by finding the square root of the product of the total number in the sample (432)
times the probability of selecting a Hispanic person (0.31) times the probability of selecting a
non-Hispanic person (0.69), and rounding to the nearest whole number:                                    = 9.6
 See Ovalle, 13 S.W.3d at 782 n.29; Partida, 430 U.S. at 496 n.17.
   22
        133.92 – (9.61 x 3) = 105.09. See Ovalle, 13 S.W.3d at 782 & n.22.

                                                 32
standard deviations, the appellant fails to establish a prima facie case of an equal protection

violation. Id. In addition, this statistical discrepancy fails to establish a prima facie case of a

fair-cross-section violation. See Pondexter, 942 S.W.2d at 580-81; see, e.g., U.S. v. Maskeny,

609 F.d 183, 190 (5th Cir. 1980); Thompson v. Sheppard, 490 F.2d 830, 832 (5th Cir. 1974).

                Finally, if we review the grand jurors selected from October 2000 to April 2008, the

record does not reflect a statistically significant underrepresentation of Hispanics among those

selected to serve on grand juries.23 The record reflects that during that time period, 47 of the

210 individuals selected for service on the grand jury, or 22.38%, had Hispanic surnames or were

identified as being Hispanic. When compared to the percentage of Hispanic registered voters, a

disparity of 8.62% exists. Conducting an analysis of the standard deviation, the discrepancy between

the expected number and actual number of Hispanics selected to serve as grand jurors is less than

three standard deviations. Using the percentage of Hispanic registered voters as representing the

population of persons eligible to serve on grand juries, one would expect about 66 Hispanic persons

to have been selected as grand jurors.24 The standard deviation is approximately seven.25 So, the


   23
      We include alternates in the count for purposes of evaluating the representation of Hispanics
among those selected to serve. Partida refers to those “called to serve as grand jurors,” and
alternates are called to serve—that is, they are selected for service—whether or not their service is
actually necessary. See Partida, 430 U.S. at 496. However, while not presented in this opinion, we
also conducted a statistical analysis using the data of grand jurors, excluding alternates, and found
that the discrepancy is likewise not statistically significant.
   24
        31% of 210 = 65.10.
   25
     Determined by finding the square root of the product of the total number in the sample (210)
times the probability of selecting a Hispanic person (0.31) times the probability of selecting a
non-Hispanic person (0.69), and rounding to the nearest whole number:                                   = 6.70
See Ovalle, 13 S.W.3d at 782 n.29; Partida, 430 U.S. at 496 n.17.

                                                 33
discrepancy between the expected number and the actual number of Hispanics selected to serve as

Schleicher County grand jurors is less than three standard deviations because the actual number of

Hispanics selected to be grand jurors, 47, is more than forty-five.26

                Based upon the foregoing, we hold that the trial court could have reasonably

concluded that the record in this case does not show a statistically significant underrepresentation

of Hispanics among those appointed as grand jury commissioners, those summoned for grand jury

panels, or those selected to serve as grand jurors in Schleicher County. See Ovalle, 13 S.W.3d at

782; Pondexter, 942 S.W.2d at 580-81. Accordingly, appellant failed to establish a prima facie case

of either an equal protection violation or a fair-cross-section violation. See id. We overrule points

of error twenty-two, twenty-four, and twenty-five.


                                           DUE PROCESS

                Appellant also raises a general due process claim under Peters v. Kiff, 407 U.S. 493

(1972) (plurality). Due process may be offended if the jury panel is selected in an arbitrary and

discriminatory manner. Id. at 502; Aldrich, 928 S.W.2d at 560; Hernandez, 24 S.W.3d at 851; see

Bird v. State, 692 S.W.2d 65, 78 (Tex. Crim. App. 1985). In Peters the United States Supreme

Court, in a plurality opinion, declared that a state criminal defendant, whatever his race, has standing

to challenge the system used to select his grand or petit jury on the ground that it arbitrarily excludes

from service the members of any race and therefore denies him due process of law, it not being




   26
        65.10 – (6.70 x 3) = 45.0. See Ovalle, 13 S.W.3d at 782 & n.22.


                                                   34
necessary that the defendant show actual harm or bias. Peters, 407 U.S. at 502-04. This is a due

process violation not involving an equal-protection or fair-cross-section violation.

               The record in this case does not show an arbitrary or systematic exclusion of Hispanic

individuals from grand jury service in Schleicher County as contended by appellant. See Aldrich,

928 S.W.2d at 560; Bird, 692 S.W.2d at 78. Moreover, the trial court could reasonably have

concluded that the grand jury that indicted appellant was not selected on an impermissible basis nor

was constituted in a manner prohibited by the constitution or by statute. The grand jury was not

plainly illegal in its composition. Peters is not controlling.

               Having examined the entire record, we conclude that no violation of due process is

shown. Absent an infringement of the fundamental right to fairness as guaranteed by the due process

of law, no basis exists to reverse appellant’s conviction or set aside the indictment against him. See

Bird, 692 S.W.2d 65, 78 (Tex. Crim. App. 1985); cf. Hobby v. United States, 468 U.S. 339 (1984).

We overrule point of error twenty-three.


                                       IV. CONCLUSION

               We hold that the trial court did not abuse its discretion in denying either appellant’s

motion to suppress or motion to quash the indictment. The judgment of conviction is affirmed.



                                               __________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

                                                  35
Filed: February 24, 2012

Do Not Publish




                           36
                                       APPENDIX:
                      APRIL 6, 2008, PROBABLE CAUSE AFFIDAVIT


       Affiant has probable cause for said belief by reason of the following facts, to-wit:

Affiant is Leslie Brooks Long, a certified peace officer under the laws of the State of Texas for
approximately 19 years. Affiant is currently employed by the Texas Department of Public Safety
as a Texas Ranger and has investigated criminal offenses in the State of Texas, including the
criminal offense of Sexual Assault of a Child. Affiant has received training from the Texas
Department of Public Safety Training Academy in Austin, Texas, including specialized Criminal
Law Enforcement training in reference to offenses identified as Sexual Assault of a Child. Affiant
has personally been on the premises of the YFZ Ranch on multiple occasions over the past four years
and knows that it is located as described above as the Suspected Place and Premises. Also,
Affiant has now been to the Suspected Place and Premises on April 4, 2008, April 5, 2008, and
April 6, 2008, for many hours each day. At the Suspected Place and Premises, Affiant entered the
gate described in the Suspected Place and Premises, drove further onto the property and observed
another fence and gate within the ranch. At the interior gate, Affiant observed a small, enclosed,
roofed building with tinted windows and antennae believed to be used in the purpose of
communications. This structure is built a few feet above ground. Based on these observations and
Affiant’s training and experience, Affiant believes this building is a surveillance platform, guard
tower or guard house. Affiant has personally spoken with Frederick Merril Jessop, as recently as
April 5, 2008, who identified himself as the point of contact to law enforcement involving any
requests or needs from the YFZ Ranch, hereafter referred to as the Suspected Place and Premises.
Affiant has personally observed other persons at the YFZ Ranch seek authorization from Frederick
Merril Jessop to respond to questions from law enforcement and other government officials.
Frederick Merril Jessop advised Affiant that Frederick Merril Jessop resides at the Suspected Place
and Premises and has presented himself to Affiant as the authority at the Suspected Place and
Premises. Affiant observed that numerous other people were present at the Suspected Place and
Premises and Frederick Merril Jessop on April 4, 2008, advised Affiant that around two hundred
fifty men, women and children reside at the Suspected Place and Premises. The occupants of the
residential structures on the Suspected Place and Premises have been not been identified to Affiant.

        On April 5, 2008, while conducting a search of the Suspected Place and Premises under
authority of Search and Arrest Warrant number M-08-001-S, out of the 51st Judicial District of
Texas, for the County of Schleicher, a copy of which is attached hereto with accompanying affidavit
as “Attachment A” for all purposes, Affiant made the following observations: within a large
building, that Affiant heard the residents at the Suspected Place and Premises refer to as a Temple,
hereafter referred to as the “Temple,” Affiant observed multiple locked safes, locked desk drawers,
locked vaults, as well as multiple computers and beds. On one of the beds within the Temple, Affiant
observed that the bed linens were disturbed as if the bed had been used and Affiant observed a strand
of hair believed to have come from the head of a female. Affiant believes the strand of hair belongs

                                                 37
to a female because Affiant has seen numerous male residents at the Suspected Place and Premises
and all of the males observed by Affiant wear their hair shorter than the strand of hair observed
by Affiant.

       On April 5th and 6th, 2008, Affiant observed a building similar in appearance to the Temple,
but smaller in size that is built away from the Temple, that Affiant will hereafter refer to as the
Temple Annex. Inside the Temple Annex, Affiant observed multiple safes and a computer and
computer peripherals.

        On April 6, 2008, Affiant has personally spoken with Tina Martinez, an employee with the
Texas Department of Protective and Family Services who personally interviewed a child who
identified herself as Yvonne Jessop on April 4th or 5th of 2008; Yvonne Jessop said she is fifteen
years of age; that Yvonne Jessop knows a child named Suzanne Johnson who is sixteen years of age
and was spiritually united (married); Yvonne Jessop further advised Tina Martinez that Suzanne
Johnson had a baby and is pregnant and resides at the Suspected Place and Premises.

        Tina Martinez also advised Affiant that she interviewed a child on April 4, 2008, who
appeared to be approximately sixteen years of age who identified herself as Lee Ann Nelson Jessop;
that Tina Martinez asked Lee Ann Nelson Jessop her age in the presence of Lee Roy Jessop; that,
before responding to Tina Martinez’ question, Lee Ann Nelson Jessop looked at Lee Roy Jessop; that
Lee Roy Jessop told Lee Ann Nelson Jessop, “you are eighteen;” after which Lee Ann Nelson Jessop
advised that she is eighteen with a date of birth of March 24, 1990; that Lee Ann Nelson Jessop
advised Tina Martinez that she has a baby that is ten months old, that she is spiritually united with
Lee Roy Jessop who is approximately thirty-three years of age; that Lee Ann Nelson Jessop is the
fourth wife of Lee Roy Jessop who is still married to the other three wives.

        On April 6, 2008, Tina Martinez further advised Affiant that, between this date and
April 4, 2008, she interviewed a child who identified herself as Pamela Jessop with a date of birth
of 12/9/1989 who advised that she has a son named Matthew Jessop who was born 8/1/2006;
that Pamela Jessop advised that the father of Matthew Jessop is Jackson Jessop who is thirty-six
years old.

        On April 6, 2008, Tina Martinez advised Affiant that, between this date and April 4, 2008,
Tina Martinez interviewed a female who identified herself as Janet Jeffs Jessop with a date of birth
of 9/16/1988 who advised Tina Martinez that she has a daughter named Diana Ziana Jessop who was
born 8/19/2005 and she has another daughter named Spiritual Unity Jessop who was born 8/12/2004.

        Also on April 6, 2008, Affiant has personally spoken with Ruby Gutierrez, an employee with
the Texas Department of Protective and Family Services who personally interviewed a child who
identified herself as Josie Steed between this date and April 4, 2008. Ruby Gutierrez advised
Affiant that Josie Steed told Ruby Gutierrez that a resident of the Suspected Place and Premises,



                                                 38
Sarah Johnson, is sixteen and has been spiritually united (married) to Joseph Jeffs who is
approximately forty years of age.

        Also on April 6, 2008, Affiant has personally spoken with Rebecca Baxter, an employee with
the Texas Department of Protective and Family Services who, between this date and April 4, 2008,
has personally interviewed a child who identified herself as Teresa Steed Jessop, with a date of birth
of sixteen years of age; Teresa Steed Jessop advised Rebecca Baxter that Teresa Steed Jessop is
pregnant and due to give birth in June 2008 and that Teresa Steed Jessop is married to Nathan Jessop
whose first wife, to whom Nathan Jessop is also still currently married, is approximately forty years
of age.

        On April 6, 2008, Rebecca Baxter also advised Affiant that, between this date and
April 4, 2008, she interviewed a female who appeared to be approximately sixteen years of age,
identified herself as Arta Jessop Barlow, and advised Rebecca Baxter that Arta Jessop Barlow does
not know her own age, but that she has given birth to a child who is now two years old and that she
is currently pregnant again. On April 6, 2008, Rebecca Baxter advised Affiant that, between this
date and April 4, 2008, she interviewed a child who identified herself as Viola Barlow, age 8, who
advised that: Arta Jessop Barlow has four children and Arta Jessop Barlow is under sixteen
years of age; that Arta Jessop Barlow is spiritually united to Richard Jessop Barlow; that
Richard Jessop Barlow is the father of Viola Barlow; that Viola Barlow’s mother,
Susan Black Barlow, is the first wife of Richard Jessop Barlow; that Arta Jessop Barlow is the
second wife of Richard Jessop Barlow; and that both wives are still alive and married to
Richard Jessop Barlow.

        Affiant has been advised by Schleicher County Sheriff David Doran that Sheriff Doran has
worked with residents at the Suspected Place and Premises over the past four years. Sheriff Doran
advised Affiant that he has learned from the residents at the Suspected Place and Premises that the
residents all belong to the religious group the Fundamentalist Church of Jesus Christ of Latter-Day
Saints (hereafter referred to as FLDS). On April 6, 2008, Sheriff Doran advised Affiant that, over
the past four years, Sheriff Doran has worked with a confidential informant who is a former member
of the FLDS; that the confidential informant has provided Sheriff Doran with information regarding
the FLDS on more than twenty occasions over the past several years and, that on each occasion, the
information was proven to be reliable, true and correct; that the confidential informant has continued
to provide Sheriff Doran reliable information as recently as April 5, 2008; that, on April 5, 2008, the
confidential informant advised Sheriff Doran of the following: that adult male FLDS church
members over the age of seventeen engage in the practice of marrying multiple wives, at the initial
time of the marriage, the bride is often under the age of sixteen years: and that the temple at the
Suspected Place and Premises contains an area where there is a bed where males over the age of
seventeen engage in sexual activity with female children under the age of seventeen.

        As stated above, on April 5, 2008, Affiant observed a bed within the Temple that has
disturbed bed linens and a strand of hair that appears to be from a female head.

                                                  39
        Furthermore, while conducting a search of the Suspected Place and Premises under the
authority of Search Warrant number M-08-001-S, on April 5, 2008, Affiant while agents were
searching for documents pertinent to that Search Warrant, Affiant personally observed a document
indicating marriages between one man and over twenty wives, all of whom resided in the same
residence at the Suspected Place and Premises, as of August 9, 2007, with no record of divorce or
death of a spouse found.




                                               40
