Opinion filed October 30, 2015




                                             In The


             Eleventh Court of Appeals
                                          __________

                                    No. 11-14-00182-CR
                                        __________

                      ALVIN VAN SPOTWOOD, III, Appellant
                                    V.
                        THE STATE OF TEXAS, Appellee

                          On Appeal from the 350th District Court
                                  Taylor County, Texas
                              Trial Court Cause No. 10745-D


                                         OPINION
         Alvin Van Spotwood, III entered an open plea of guilty to a second-degree
felony offense of possession of four or more grams but less than 200 grams of a
controlled substance, cocaine, in a drug-free zone.1              The State and Appellant
agreed, in a limited agreement, that Appellant’s punishment would be capped at
imprisonment for ten years. The trial court assessed Appellant’s punishment at
confinement for eight years and sentenced him. Appellant asserts in a single issue
that the trial court improperly denied his motion to suppress. We affirm.
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             TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010), § 481.134(c) (West Supp.
2014).
             I. Evidence Presented at the Hearing on the Motion to Suppress
        Scott Ferrell, a police officer with the Abilene Police Department, received
information from a confidential informant that Appellant had possession of cocaine
at Appellant’s residence. Officer Ferrell prepared an affidavit to support an arrest
and search warrant. He alleged that Appellant possessed cocaine and other items
at Appellant’s residence.2           Mike McAuliffe, a justice of the peace, reviewed
Officer Ferrell’s affidavit. Justice of the Peace McAuliffe issued an arrest and
search warrant to search Appellant’s residence. The warrant provides in relevant
part:
               YOU ARE THEREFORE COMMANDED TO FORTHWITH
        SEARCH THE PLACE ABOVE NAMED AND DESCRIBED
        WHERE THE SAID CONTROLLED SUBSTANCE, TO WIT:
        Cocaine, and/or items that constitute evidence relating to the said
        offense, including items described in the attached affidavit, to include,
        correspondence, telephone bills, utility bills, utility company receipts,
        drug notes, drug ledgers, scales, packaging materials, price lists,
        customer names, address books, statements regarding the identity,
        location, types and amounts of assets in the United States, air bill
        package receipts, business records, cellular telephones, electronic data
        contained in cellular phones, pagers, caller ID devices, money orders,
        U.S. Currency and other financial instruments, safes and other locked
        containers, photographs, videotapes and negatives, which are alleged
        to be concealed, and if you find such controlled substances, and/or
        items that constitute evidence relating to said offense, or any portion
        thereof, you will seize the same and bring it before me at my office,
        situated in Abilene, Taylor County, Texas on the 11th day of
        December, 2012, A.D.
(emphasis added). When police officers executed the search warrant, they found
cocaine, other contraband, and several items indicating ownership of narcotics.



        2
         The grand jury indicted Appellant for possession of more than four grams but less than 200
grams of a controlled substance, cocaine, within 1,000 feet of a school, the Kid’s Corner Learning Center,
in Abilene. The grand jury also indicted Appellant for possession of more than four grams but less than
200 grams of a controlled substance, cocaine, with intent to deliver, within 1,000 feet of a school.
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      Appellant moved, before trial, to suppress evidence seized under the search
warrant. Appellant claimed that the warrant was an “evidentiary” search warrant
and had to be issued by a statutorily defined magistrate—not a justice of the peace.
See TEX. CODE CRIM. PROC. ANN. arts. 18.01(c), 18.02(10) (West 2015). The State
did not dispute that Justice of the Peace McAuliffe lacked the authority to issue
certain portions of the warrant and even characterized his doing so as an “error on
the part of the police.” Instead, the State argued that the cocaine and items that
demonstrated Appellant’s ownership of the cocaine should be admitted because
Justice of the Peace McAuliffe could issue a warrant for their seizure. See CRIM.
PROC. art. 18.02(a)(7).
      The trial court announced its decision in its findings of fact and conclusions
of law. In the findings, the trial court found that Justice of the Peace McAuliffe
was authorized, under Section 18.02(a) of the Texas Code of Criminal Procedure,
to sign the search warrant for the police to seize the cocaine. The trial court held
that the part of the search warrant that authorized the seizure of “cocaine” was
“valid.” The trial court also held that the remainder of the warrant was invalid, and
it severed the “valid” part from the “invalid” part. The trial court then suppressed
the items seized under the “invalid” part of the warrant.
                                II. Standard of Review
      We review the trial court’s decision on a motion to suppress evidence under
a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.
Crim. App. 2007) (citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App.
2005)); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing
Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997)). Appellate
courts should afford almost total deference to a trial court’s determination of the
historical facts that the record supports, especially when the trial court’s findings of
fact are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d
                                           3
at 88–89.   We review de novo the trial court’s application of the law.           Id.;
Carmouche, 10 S.W.3d at 327; Davila v. State, 4 S.W.3d 844, 847–48 (Tex.
App.—Eastland 1999, no pet.). We review the evidence in the light most favorable
to the trial court’s decision and will uphold that decision if it is reasonably
supported by the record. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.
2006); Carmouche, 10 S.W.3d at 327.
                                    III. Analysis
      Appellant contends that the trial court erred when it refused to suppress the
cocaine and other items seized under the search warrant. Appellant contends
(1) that the core language of the warrant was general in character and (2) that the
“valid” description of cocaine was “inextricably intertwined” with the core
language of the warrant.     He claims that the warrant was wholly evidentiary
because the “valid” portion of the warrant was “inextricably intertwined” with the
“invalid” portion. He thus argues that the trial court abused its discretion when it
ordered the “valid” portion of the warrant severed from the “invalid” portion.
      The Court of Criminal Appeals, in Walthall v. State, adopted a rule of
severability by which invalid portions of a warrant may be severed from the valid
portions. See Walthall v. State, 594 S.W.2d 74, 79 (Tex. Crim. App. [Panel Op.]
1980). However, the court cautioned that severability should not be used to allow
warrants that are “essentially general in character but as to minor items meet the
requirement of particularity.” Id. (emphasis added) (quoting Aday v. Superior
Court, 362 P.2d 47, 52 (Cal. 1961)). Consequently, with the exclusion of an
essentially general warrant, the appropriate remedy when presented with a partially
invalid warrant “is not to suppress the fruits of the entire warrant but to strike the
offending clauses and exclude evidence that does not fit within the warrant as
modified.” Ramos v. State, 934 S.W.2d 358, 363 & n.7 (Tex. Crim. App. 1996)
(citing Walthall, 594 S.W.2d at 79).
                                          4
      Appellant requests that we impose an “inextricably intertwined” standard to
tie the contents of the warrant together and invalidate the severance of the warrant
by the trial court. Appellant cites no case law to support his position, and we have
not found a case that applied the “inextricably intertwined” standard in this
context. We decline to adopt such a standard. We will analyze the issue in light of
Walthall’s concerns and address whether cocaine was a minor item listed in an
otherwise “essentially general” warrant. See Walthall, 594 S.W.2d at 79. In
Officer Ferrell’s affidavit, he alleged that Appellant “did then and there unlawfully
possess and does at this time unlawfully possess a substance prohibited by the
Health and Safety Code of the State of Texas, To-Wit: Cocaine.” The affidavit
alleged no other offense. Under such circumstances, cocaine—the possession of
which was the linchpin of Officer Ferrell’s affidavit—cannot be described as a
“minor item.” See Id.; Checo v. State, 402 S.W.3d 440, 446 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d.). Consequently, the trial court did not abuse its
discretion when it severed the warrant into two parts and found that the
authorization of the seizure of cocaine was valid, while the remainder of the
warrant was invalid. See Ramos, 934 S.W.2d at 363–64; Walthall, 594 S.W.2d at
79; Checo, 402 S.W.3d at 446. We overrule Appellant’s sole issue.
                              IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
October 30, 2015                                    JUSTICE
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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