                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                     No. 07-18-00300-CR
                                 ________________________


                               ANTHONY ALLEN, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 140th District Court
                                     Lubbock County, Texas
               Trial Court No. 2017-411,914; Honorable Jim Bob Darnell, Presiding


                                          March 21, 2019

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


      Pursuant to a plea bargain, Appellant, Anthony Allen, pleaded guilty to possession

with intent to deliver methamphetamine in an amount of four grams or more but less than

200 grams, a first degree felony.1 In accordance with the terms of that agreement, the

trial court assessed his sentence at confinement for a period of fifteen years. By a single


      1   TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2017).
issue, Appellant contends the trial court erred in denying his motion to suppress because

the affidavit in support of the warrant lacked both reasonable suspicion and probable

cause. We affirm.


       BACKGROUND

       With the assistance of two confidential informants, Officer Daniel Merritt executed

an affidavit in support of a search warrant for Appellant’s motel room. On the same day

the warrant was issued, police officers arranged a controlled buy involving one of the

confidential informants. After the transaction occurred in a business parking lot, police

officers followed Appellant back to his motel where they executed the search warrant and

found methamphetamine.


       After he was indicted, Appellant filed a pretrial motion to suppress challenging the

search of his motel room. Specifically, he asserted that Officer Merritt’s affidavit in support

of the search warrant lacked both reasonable suspicion and probable cause.


       In support of the motion to suppress, Appellant filed his Brief in Support of

Defendant’s Motion to Suppress. Appellant’s arguments included claims that (1) one of

the confidential informant’s information was stale, (2) the information was not

independently corroborated, (3) the informants were not reliable and credible, and (4)

Officer Merritt’s affidavit contained conclusory recitations.      The Brief in Support of

Defendant’s Motion to Suppress referenced portions of Officer Merritt’s affidavit; however,

his affidavit was not included as an exhibit to either the motion to suppress or the brief in

support thereof. Nor was the affidavit a matter of record in Appellant’s case.




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         The State answered the motion to suppress with its response. Arguing the “totality

of the circumstances,” the State claimed that the information from both confidential

informants should be considered and that Officer Merritt’s affidavit contained

corroboration of the information. The State responded to Appellant’s “stale” argument by

citing to Moore v. State, 456 S.W.2d 114, 115 (Tex. Crim. App. 1970) (noting that delay

between informant’s information and securing a warrant does not vitiate the warrant but

varies according to the facts of the individual case). After reviewing “the briefs submitted

by the parties,” the trial court denied Appellant’s motion by written order.


         APPLICABLE LAW

         The United States Constitution and the Texas Constitution provide that a search

warrant must be based on probable cause supported by oath and affirmation. See U.S.

CONST. amend. IV; TEX. CONST. art. I, § 9. To support a search warrant, an affidavit must

contain sufficient facts to satisfy the issuing magistrate that probable cause does in fact

exist for the warrant’s issuance. TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West Supp.

2018).


         A reviewing court looks to the “totality of the circumstances” regarding the facts

contained in the affidavit and gives great deference to the magistrate’s probable cause

determination as long as he had a “substantial basis” of doing so. Illinois v. Gates, 462

U.S. 213, 236-37, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). As a reviewing court, we are

to ensure that the magistrate had a substantial basis for his conclusion. Id. at 238. In

reviewing the sufficiency of an affidavit in support of a search warrant, we are limited to

the four corners of the affidavit. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App.

1992).

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       Generally, probable cause to issue a search warrant exists where the affidavit in

support thereof, viewed in a “commonsensical and realistic manner,” demonstrates that

“under the totality of the circumstances, there is a fair probability that contraband or

evidence of a crime will be found at the specified location.” State v. McLain, 337 S.W.3d

268, 271-72 (Tex. Crim. App. 2011). It is a flexible, non-demanding standard. Id. When

a search warrant affidavit is supported by information from a confidential informant, the

informant’s credibility may be established by the affiant’s statement that the informant has

provided true and correct information in the past. Dixon v. State, 206 S.W.3d 613, 616-

17 (Tex. Crim. App. 2006).


       PRESERVATION OF ERROR

       Preservation of error is a systemic requirement on appeal. Ford v. State, 305

S.W.3d 530, 532 (Tex. Crim. App. 2009). Arguments challenging the sufficiency of

warrant affidavits may be waived if not properly preserved. See TEX. R. APP. P. 33.1(a).

See also Skinner v. State, No. 01-14-00748-CR, 2016 Tex. App. LEXIS 5347, at *11 (Tex.

App.—Houston [1st Dist.] May 19, 2016, no pet.) (mem. op., not designated for

publication).


       ANALYSIS

       It is well established that the burdens of production and persuasion generally rest

upon the movant in a motion to suppress. State v. Robinson, 334 S.W.3d 776, 782 (Tex.

Crim. App. 2011) (Cochran, J. concurring). The burden is on the defendant to raise an

exclusionary issue and to prove facts to support that assertion. Pham v. State, 175

S.W.3d 767, 774 (Tex. Crim. App. 2005).



                                             4
       Here, Appellant presents the following arguments in support of his argument that

information in Officer Merritt’s affidavit should not have been considered in issuing the

search warrant: (1) one of the confidential informant’s information was not credible or

reliable; (2) that same confidential informant’s information was not independently

corroborated; (3) that same confidential informant’s information was stale; and (4) the four

corners of the affidavit in support of the warrant failed to establish a sufficient nexus

between the evidence described in the search warrant and his motel room. (Emphasis

added).


       The foundation of Appellant’s arguments is Officer Merritt’s affidavit. Numerous

times in his brief, he references the “four corners” of the affidavit. Yet, the affidavit does

not appear in the appellate record.2 It is not attached to Appellant’s motion nor to his brief

in support of his motion. Furthermore, it was never introduced into evidence or otherwise

submitted to the trial court for consideration. The only references before this court to

conduct a “four corners” review are excerpts contained in the brief in support of the motion

to suppress, which may or may not be accurate. Because the affidavit is not contained

in the appellate record for us to review its “four corners,” we are unable to determine

whether the magistrate erred in issuing the search warrant. Accordingly, Appellant is

unable to sustain his burden to show trial court error in denying his motion to suppress.

See Gandy v. State, 04-16-00509-CR, 2019 Tex. App. LEXIS 1010, at *7 (Tex. App.—

San Antonio Feb. 13, 2019, no pet. h.) (mem. op., not designated for publication) (finding




       2 Generally, pleadings cannot be considered evidence unless they are admitted into evidence. In
re Campo, No. 05-13-00477-CV, 2013 Tex. App. LEXIS 9312, at *3 (Tex. App.—Dallas July 26, 2013, orig.
proceeding) (mem. op.).

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appellant’s burden was not met where affidavit in support of challenged search warrant

was not contained in the appellate record). Appellant’s sole issue is overruled.


      CONCLUSION

      The trial court’s judgment is affirmed.




                                                       Patrick A. Pirtle
                                                            Justice
Do not publish.




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