                                 NO. 07-09-00375-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                     JULY 27, 2010


                   CARLOS BARRIENTOS MARTINEZ, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


              FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

                  NO. 2690; HONORABLE KELLY G. MOORE, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION

      Appellant, Carlos Barrientos Martinez, pleaded guilty to possessing less than one

gram of a controlled substance,1 a state-jail felony, after the trial court overruled his

motion to suppress the evidence seized pursuant to a search warrant. The trial court

imposed a two-year sentence, probated for five years.       Appellant appeals the trial

court’s ruling on his motion to suppress. We affirm.




      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (Vernon Supp. 2009).
                               Factual and Procedural History


       In his sole issue on appeal, Martinez contends that the trial court erred by

overruling his motion to suppress because the affidavit in support of the search warrant

contained false statements from Denver City Police Officer Noe Valdez. Specifically,

appellant challenges the validity of the affidavit and the search warrant it supported on

the basis of Valdez’s statement that the Ledo Street residence to be searched was “in

the charge of and controlled by” appellant at the time the affidavit was made. Appellant

alleges that he was not a resident of that house at that time and that Valdez’s statement

to the contrary is a material falsehood made knowingly, intentionally, or recklessly and,

thus, it must be excised from the affidavit pursuant to Franks v. Delaware, 438 U.S. 154,

155–56, 98 S.Ct. 2674; 57 L.Ed.2d 667 (1978).              Further, according to appellant,

excising the misstatement would invalidate the warrant because it would no longer

specifically identify the premises to be searched.


                                     Standard of Review


       We begin our review under the presumption that the affidavit in support of the

search warrant is valid.     See Cates v. State, 120 S.W.3d 352, 355 (Tex.Crim.App.

2003). We review the trial court’s ruling on a motion to suppress for abuse of discretion.

State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006).               The determination of

whether a probable cause affiant’s statement was deliberately false or made with

reckless disregard for the truth is a question of fact, and we give great deference to the

trial court in its role as the sole trier of fact and judge of the credibility of the witnesses.



                                               2
See Janecka v. State, 937 S.W.2d 456, 462 (Tex.Crim.App. 1996); Blocker v. State,

264 S.W.3d 356, 358 (Tex.App.—Waco 2008, no pet.).


                                           Analysis


       Ordinarily, when we determine the validity of a search warrant affidavit, our

review is limited to the four corners of the affidavit. See Jones v. State, 833 S.W.2d

118, 123 (Tex.Crim.App. 1992). However, “where the defendant makes a substantial

preliminary showing that a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit, and if the

allegedly false statement is necessary to the finding of probable cause, the Fourth

Amendment requires that a hearing be held at the defendant’s request.” Franks, 438

U.S. at 155–56.      If the defendant has made a substantial preliminary showing of

deliberate falsity, the trial court is required to go behind the “four corners” of the affidavit

in a Franks evidentiary hearing. Cates, 120 S.W.3d at 355 n.3.


       A defendant makes a substantial preliminary showing and, thus, gains the right to

an evidentiary hearing, under Franks, by satisfying a three-part test. See Harris v.

State, 227 S.W.3d 83, 85 (Tex.Crim.App. 2007). First, the defendant must allege a

deliberate falsehood or reckless disregard for the truth by the affiant, specifically

pointing out the portion of the affidavit claimed to be false. Id. Secondly, the defendant

must accompany these allegations with an offer of proof stating the support for such

allegations. Id. Finally, the defendant must show that, when the portion of the affidavit

alleged to be false is excised from the affidavit, the remaining content is insufficient to

support the issuance of the warrant. Id.

                                               3
       At the hearing on the motion to suppress, the movant has the burden of

establishing the allegation of perjury or reckless disregard for the truth by a

preponderance of the evidence. See Franks, 438 U.S. at 156; Harris, 227 S.W.3d at

85; Jordan v. State, 271 S.W.3d 850, 854 (Tex.App.—Amarillo 2008, pet. ref’d). If, after

the hearing, the trial court determines the defendant has met his burden of proof, the

false information contained in the warrant affidavit must be disregarded. See Franks,

438 U.S. at 156. If the remainder of the affidavit does not contain sufficient probable

cause to support the issuance, the warrant is voided and any evidence obtained as a

result of its issuance must be excluded. Id.


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

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

Fourth Amendment requires a truthful factual showing when determining probable

cause. See id. at 164–65. “Truthful,” however, does not mean that every fact recited in

the affidavit is necessarily correct.   Id. at 165.    Instead, “truthful” means that the

information put forth in the affidavit is believed or appropriately accepted by the affiant

as true. Id. The exclusionary rule in Franks does not extend to instances in which the

police act “merely negligently” in collecting the facts alleged in the affidavit. See id. at

170.


       Appellant testified that he had lived at the Ledo Street residence but that he had

moved out approximately six months prior to the execution of the search warrant. At the

time of the search, appellant was living with his brother about two blocks away from the

Ledo Street residence. He denied that he still had some clothing at the Ledo Street

                                               4
residence. He admitted that he returned to his former residence to visit and drink with

his friends but that he only “rarely” stayed overnight there.


       Valdez testified that, according to the “information that [he] obtained,” appellant

was living at the residence. Valdez explained that information from the confidential

informant, whom he described as reliable, and complaints from concerned citizens in

that neighborhood led him to believe that the premises to be searched were controlled

by appellant.   His surveillance of the premises supported such a conclusion when

Valdez observed appellant at the residence.


       One of appellant’s friends, a codefendant who lived at the residence, testified

that appellant had moved out approximately three months before the search but still had

clothing at the residence. From the witness’s description, those clothes were limited to

some work attire. He added that appellant frequently came over to the residence but

did not have a key to the door. He later clarified, though, that none of the residents had

a key and that they used a knife to gain access to the residence. He testified that

appellant no longer paid rent at the residence at the time of the search.


       We assume, without deciding, that appellant sufficiently satisfied the three-part

test that would entitle him to a Franks hearing. Based on evidence presented at the

hearing, we cannot say that the trial court abused its discretion by determining that

Valdez’s statement was not deliberately false or made with reckless disregard for the

truth. See Janecka, 937 S.W.2d at 465. The evidence shows that appellant had lived

at the residence and frequently visited there. Valdez testified that he had obtained the

information in the affidavit from the confidential informant, neighborhood complaints,

                                             5
and his own surveillance. Based on such evidence, the trial court could have rejected

appellant’s allegation that Valdez included the challenged statement in the affidavit

knowing that such statement was false or in reckless disregard for the truth.          See

Blocker, 264 S.W.3d at 359–60 (observing, during discussion of Franks claim, that even

if defendant were “only a houseguest, living in the trailer with the permission of the host,

he had apparent authority over the residence”).          Affording the trial court proper

deference in making such a factual determination, we overrule appellant’s sole issue on

appeal. See Janecka, 937 S.W.2d at 462.


                                        Conclusion


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

judgment.




                                                        Mackey K. Hancock
                                                             Justice


Do not publish.




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