                                                                               ACCEPTED
                                                                          01-14-00748-CR
                                                                FIRST COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                     3/18/2015 2:03:59 PM
                                                                      CHRISTOPHER PRINE
                                                                                   CLERK

                        NO. 01-14-00748-CR

                  IN THE COURT OF APPEALS            FILED IN
                                              1st COURT OF APPEALS
          FOR THE FIRST JUDICIAL DISTRICT OF TEXASHOUSTON, TEXAS
                         AT HOUSTON           3/18/2015 2:03:59 PM
                                                   CHRISTOPHER A. PRINE
                                                         Clerk

JAMES LEE SKINNER                   §              APPELLANT
                                    §
VS.                                 §
                                    §
THE STATE OF TEXAS                  §              APPELLEE

_____________________________________________________________

                 APPEAL FROM CAUSE NO. 1315689
                   IN THE 183RD DISTRICT COURT
                    OF HARRIS COUNTY, TEXAS
___________________________________________________________________

                       APPELLANT’S BRIEF
___________________________________________________________________




                                    NORMAN J. SILVERMAN
                                    Texas Bar No. 00792207
                                    917 Franklin, 4th Floor
                                    Houston, Texas 77002
                                    (713) 526-1515
                                    (713) 526-1798 (FAX)
                                    lawyernorm@msn.com
                                    ATTORNEY FOR APPELLANT


APPELLANT REQUESTS ORAL ARGUMENT
                          Identity of Parties and Counsel

      The following is a complete list of all parties to the trial court’s judgment,
and the names and addresses of all trial and appellate counsel:

James Lee Skinner                -      Appellant.


State of Texas                   -      Appellee.


Norman J. Silverman              -      Appellant’s retained counsel at trial
917 Franklin, 4th Floor                 and on appeal.
Houston, Texas 77002


Anthony Robinson                 -      Assistant District Attorney at trial.
1201 Franklin
Houston, Texas 77002


Alan Curry                       -      Assistant District Attorney on appeal.
1201 Franklin
Houston, Texas 77002


Hon. Jay W. Burnett              -      Trial Judge.




                                          ii
                                                          Contents

Page

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

List of Authorities .....................................................................................................iv

Statement of the Case ................................................................................................. 1

Issues Presented.......................................................................................................... 1

          Issue One: The warrant is invalid because the affidavit does not
          provide a timeframe for the relevant facts.

          Issue Two: The warrant is invalid because it contains material
          misstatements or omissions made intentionally or with reckless
          disregard for the truth.

          Issue Three: The trial court abused its discretion in denying the
          motion for disclosure of the informant’s identity.

Summary of the Arguments ....................................................................................... 2

Facts ........................................................................................................................... 3

Arguments and Authorities ........................................................................................ 8

         Issue One: Sufficiency of the Warrant Affidavit............................................. 8

                   A. Standard of Review .......................................................................... 8

                   B. The affidavit fails to provide an adequate
                      recitation of the timeframe for the relevant facts ............................ 8

         Issue Two: Franks Claim .............................................................................. 16

                                                              iii
                   A. Standard of Review ........................................................................ 16

                    B. The affidavit contains intentionally or recklessly made
                        misstatements/omissions .............................................................. 17

                   C. The remainder of the affidavit is insufficient to establish
                       probable cause .............................................................................. 20

         Issue Three: Disclosure of the Informant’s Identity ...................................... 24

                   A. Standard of Review ........................................................................ 24

                    B. Applicable Law.............................................................................. 24

Prayer ....................................................................................................................... 28

Certificate of Service ................................................................................................ 29

Certificate of Compliance ........................................................................................ 29



                                                List of Authorities

         Cases:

Blake v. State,
   125 S.W.3d 717 (Tex. App.-Houston [1st Dist.] 2003, no pet.) .................. 17, 18

Flores v. State,
   827 S.W.2d 416 (Tex. App.-Corpus Christi 1992, pet. ref'd) .............................. 9

Ford v. State,
  179 S.W.3d 203 (Tex. App.–Houston [14 Dist.] 2005, pet. ref’d) ............... 12, 21

Franks v. Delaware,
   438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) .................................passim
                                                              iv
Gonzales v. State, 577 S.W.2d 226 (Tex. Crim. App. 1979) .................................. 11

Haggerty v. State,
  429 S.W.3d 1 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd) ....................... 26

Harris v. State,
  184 S.W.3d 801 (Tex.App.-Fort Worth 2006),
  rev'd on other grounds, 227 S.W.3d 83 (Tex.Crim.App.2007) ................... 20, 21

Harris v. State, 227 S.W.3d 83 (Tex. Crim. App. 2007) .................................. 17, 20

Harris v. State,
  905 S.W.2d 708 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd) ............. 18, 19

Johnson v. State,
   2001 WL 665546 (Tex. App. - El Paso 2001, no pet.)
   (not designated for publication) ......................................................................... 18

Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) ...................................... 16

Jones v. State, 364 S.W.3d 854 (Tex. Crim. App. 2012) .................................passim

Jones v. State,
   944 S.W.2d 642 (Tex. Crim. App.1996),
   cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997) ................... 24

McClintock v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014) ................................. 20

Melton v. State,
  750 S.W.2d 281 (Tex. App.-Houston [14th Dist.] 1988, no pet.) ....................... 18

Norris v. State,
  1992 WL 234902 (Tex. App.- Houston [1st Dist.] 1992, pet. refd )
  (not designated for publication) ......................................................................... 19




                                                       v
Peltier v. State, 626 S.W.2d 30 (Tex. Crim. App. 1981) ........................................ 10

Richardson v. State, 622 S.W.2d 852 (Tex. Crim. App. 1981) ............................... 21

Robinson v. State,
  2002 WL 595137 (Tex.App.-Hous. [1st Dist.] 2002, pet. ref’d)
  (not designated for publication) ......................................................................... 22

Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007) ..................................... 9

Sadler v. State,
   905 S.W.2d 21 (Tex.App.-Houston [1st Dist.] 1995, no pet.) ..................... 12, 21

Salazar v. State,
   806 S.W.2d 291 (Tex.App.—Amarillo 1991, no pet.) ....................................... 21

Sanchez v. State,
   98 S.W.3d 349 (Tex. App.- Houston [1st Dist.] 2003, pet. ref'd) ...............passim

Schmidt v. State, 659 S.W.2d 420 (Tex. Crim. App. 1983) ...................................... 9

Sherlock v. State, 632 S.W.2d 604 (Tex. Crim. App. 1982) ................................... 11

Smith v. State,
  2002 WL 31264854 (Tex. App.- Houston [1 Dist.] 2002, pet. ref’d) ................ 22

State v. Duarte, 389 S.W.3d 349 (Tex. Crim. App. 2012) ........................................ 9

State v. Griggs,
   352 S.W.3d 297 (Tex. App.–Houston [14 Dist.] 2011, pet. ref’d.) .............passim

State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011) ..............................passim

State v. Verde, 432 S.W.3d 475 (Tex. App.–Texarkana 2014, pet. ref’d) .............. 18

Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004) ................................ 8

Taylor v. State, 604 S.W.2d 175 (Tex. Crim. App. [Panel Op.] 1980) ................... 24

                                                     vi
United States v. Cronan, 937 F.2d 163 (5th Cir. 1991) .................................... 17, 19

United States v. Martin, 615 F.2d 318 (5th Cir. 1980) ..................................... 17, 19

United States v. Shamaeizadeh, 80 F.3d 1131 (6th Cir. 1996) ............................... 20

Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006) .......................................... 17

Williams v. State,
   37 S.W.3d 137 (Tex.App.-San Antonio 2001, pet. ref'd) ............................. 22, 23


         Statutes, Codes and Constitutional Provisions:

TEX. R. APP. P. 44.2 ................................................................................................. 27

TEX. R. APP. P. 9.4 .................................................................................................. 29

TEX. R. EVID. 508 .............................................................................................passim

TEX.CODE CRIM. PROC. ANN. art. 1.06 ...................................................................... 9

TEX.CODE CRIM. PROC. ANN. art. 18.01 ..................................................................... 9

TEX. CONST. art. I, § 9 ................................................................................................ 9

U.S. CONST. amend. IV .............................................................................................. 8




                                                          vii
To the Honorable Justices of the Court of Appeals:

                              Statement of the Case

      Appellant was charged by information with the first degree felony offense of

possession with intent to deliver methamphetamine, weighing between 4 and 400

grams, alleged to have occurred on August 5, 2011. CR15. Appellant filed pretrial

written motions to suppress evidence and to compel disclosure of a confidential

informant. CR33; 2RR5. The trial court conducted hearings then denied the

motions. 4RR5-9. Appellant entered a plea of guilty to the reduced charge of

second degree possession of methamphetamine without an agreed recommendation

for punishment. CR218. The trial court sentenced Appellant to a ten year term of

deferred adjudication probation. CR218. Appellant filed timely written notice of

appeal, and the trial court certified his right to appeal. CR225, 227.

                                 Issues Presented

      Issue One: The warrant is invalid because the affidavit does not
      provide a timeframe for the relevant facts.

      Issue Two: The warrant is invalid because it contains material
      misstatements or omissions made intentionally or with reckless
      disregard for the truth.

      Issue Three: The trial court abused its discretion in denying the
      motion for disclosure of the informant’s identity.




                                          1
                           Summary of the Arguments

      Issue One: The trial court erred in denying the motion to suppress because

the warrant affidavit fails to provide probable cause. The only fact supporting

probable cause is the description of a controlled buy, but the affidavit does not

indicate when the controlled buy occurred. Moreover, the affidavit does not provide

facts from any other source indicating ongoing narcotics activity at the suspected

premises. Accordingly, the affidavit fails to provide a substantial basis for finding

probable cause.

      Issue Two: The trial court erred in denying Appellant’s challenge of the

warrant on the grounds that the affidavit contains material misstatements and

omissions. The affidavit states that the affiant “checked” the informant for narcotics

prior to the controlled buy, but the affiant testified that her simple pat-down of the

informant’s outer clothing would not reliably reveal small quantities of narcotics.

Because the controlled buy was the only fact provided in support of the issuance of

the warrant, the misstatements/omissions regarding the effectiveness of the search

are material to the finding of probable cause. Accordingly, the warrant was invalid

and the evidence seized pursuant to the warrant must be suppressed.

      Issue Three: Appellant asserts that the trial court abused its discretion in

denying the motion for disclosure of the identity of the informant. The informant’s


                                           2
identity must be disclosed because Appellant was away from his residence at the

time of the alleged “controlled buy;” accordingly, the informant’s testimony is

relevant to a determination of guilt or innocence, as well as to the legality of the

means by which the evidence was obtained.

                                         Facts

      On August 4, 2011, a search and arrest warrant was issued for Appellant’s

residence located at 4810 Hazard in Houston. The affidavit, authored by HPD

Officer Brenda McCord, provided the following factual basis:

      Within the past forty eight (48) hours, Houston Police Sergeant J. Yencha
      and your Affiant met with a credible and reliable confidential informant
      regarding narcotics activity at 4810 Hazard located in Houston, Harris
      County, Texas. Affiant has worked with the confidential informant on
      previous occasions and the information provided by this confidential
      informant has proven to be true and correct and the information has led to
      felony arrests.

      Affiant did not find any illegal narcotics and money after checking the
      confidential informant during the meeting and before and after the
      investigation. Affiant provided the confidential informant with a quantity
      of City of Houston money and instructed the confidential informant to go
      to 4810 Hazard, Houston, Harris County, Texas and attempt to purchase
      methamphetamine from the residence. Affiant followed the confidential
      informant to the residence while Sergeant Yencha maintained visual
      surveillance from a nearby location. Affiant watched as the confidential
      informant arrived and entered into the residence without making any
      stops. Shortly thereafter, Sergeant Yencha and I saw the confidential
      informant leave the residence. Affiant immediately followed the
      confidential informant directly to the preselected location without making
      any stops.


                                           3
      The confidential informant handed Affiant a clear plastic bag with a
      crystal like substance that resembled methamphetamine. According to the
      confidential informant, he/she asked the white male known as “James
      Skinner” for methamphetamine. The confidential informant told Affiant
      the white male known as “James Skinner” handed him/her a quantity of
      methamphetamine in exchange for the City of Houston money. The
      confidential informant stated that this white male known as “James
      Skinner” sold him/her the methamphetamine. The white male known as
      “James Skinner” advised the confidential informant that he had more
      methamphetamine and that he/she could come back anytime to get more
      methamphetamine.

      The confidential informant told Affiant that he/she has seen
      methamphetamine on numerous occasions and can recognize
      methamphetamine by odor and sight. Affiant conducted a field test on the
      substance believed to be methamphetamine the confidential informant
      purchased from the white male known as “James Skinner” from 4810
      Hazard and found that it contained methamphetamine substances.

DX1 at 3-4. Upon execution of the warrant, the police seized several controlled

substances, including methamphetamine, marijuana, and GHB. DX1 at 5.

      Appellant moved to suppress the products of the search warrant on two

grounds. First, the affidavit is insufficient to provide probable cause because it fails

to provide a timeframe for the relevant facts. 2RR13; 4RR6-8. Second, the warrant

is invalid, pursuant to Franks v. Delaware,1 because the affidavit contains

knowingly or recklessly made, material misstatements and omissions with regard to

the controlled buy. 2RR13. In support of this ground, Appellant supplied affidavits

and documentary evidence, which were admitted into evidence during a hearing on



                                           4
the motion, showing that he was not at home at the time that, according to the

police offense report, the controlled buy occurred.

        The offense report of Officer McCord states that during the afternoon of

August 3, 2011, she and Sergeant J. Yencha utilized a confidential informant to

conduct a controlled buy of 1.04 grams of methamphetamine at 4810 Hazard. DX2

at 4-5. At the hearing on the motion to suppress, McCord testified that the

controlled buy began at 4:50 p.m. or shortly thereafter. 2RR76. Neither McCord nor

Yencha saw Appellant during the controlled buy; both officers testified that

Appellant’s vehicle was already at the residence when surveillance of the controlled

buy began. 2RR23, 50. McCord testified that the informant was inside the residence

for fifteen minutes. 2RR29.

        Appellant submitted an affidavit stating that on August 3, 2011, he was away

from his residence all afternoon. DX3. He left the residence around noon to run

some errands. After the errands he met Nassim Joseph at 3:30 p.m. for a business

lunch at Lupe Tortilla’s Restaurant, located at Interstate 59 (Southwest Freeway)

and Norfolk. The meeting lasted about two hours. From there Appellant went to a

friend’s apartment located near Mai’s Restaurant, where he remained for about 30

minutes. Next Appellant went to his storage unit (Uncle Bob’s) located near


1   438 U.S. 154, 164-65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

                                               5
Hillcroft and Interstate 59, where he remained for about an hour rearranging a

record collection. Appellant averred that he did not meet anyone at his residence or

sell methamphetamine to anyone on August 3, 2011. DX3 at 2.

      Appellant submitted records from his cellular telephone service provider

(AT&T) showing location data for his phone on August 3, 2011. DX4. A latitude

and longitude coordinate search of the location data for consecutive calls occurring

at 3:16 p.m. and at 4:51 p.m. place the phone at Lupe Tortilla’s Restaurant, located

at 2414 Southwest Freeway. DX6 at 1. The next call occurred at 5:57 p.m. from

2918 Austin Street, a few blocks from Mai’s Restaurant (3403 Milam Street). DX4;

DX6 at 2.

      Appellant submitted the affidavit of Nassim Joseph corroborating

Appellant’s averment that they met for lunch at 3:30 p.m. on August 3, 2011 at

Lupe Tortilla’s Restaurant located on the Southwest Freeway. DX7. Joseph averred

that the lunch lasted at least two hours during which they discussed Appellant

performing as DJ at Joseph’s nightclub (“Rich’s”) for an upcoming Halloween

event. DX7. Joseph’s averments are corroborated by a calendar record in his AT&T

account (att.net) showing the entry “Lunch w/jimmy Skinner” at 3:30 p.m. on

Wednesday, August 3, 2011. DX8.




                                          6
      Officer McCord testified that the search of the informant preceding the

controlled buy consisted of a pat-down. 2RR87. McCord acknowledged that a

simple pat-down of outer clothing would not reliably reveal small quantities of

contraband:

      Q.      And of course, if you were patting somebody
              down and they had a small plastic baggie with meth in
              it, that’s not something that you will really feel in a
              pat-down, is it?

      A.      Possibly.

      Q.      Sure, possibly. But not likely, right?

      A.      Depends.

2RR87.

      The trial court denied the motion to suppress and expressly adopted the

State’s Proposed Findings of Fact and Conclusions of Law with regard to the

Franks allegations. 4RR5, 8.

      Appellant also moved for disclosure of the identity of the informant on the

grounds that the informant could provide material testimony on the issue of guilt

and the issue of the validity of the warrant. 2RR123-125. The trial court conducted

an in camera hearing with the informant (RR Volume 3 – Sealed). The trial court

denied the motion to compel disclosure of the informant, ruling that the informant’s

testimony would not significantly aid the defense. 4RR9.

                                           7
                           Arguments and Authorities

                                   Issue One:
              The warrant is invalid because the affidavit does not
                  provide a timeframe for the relevant facts.

      A.     Standard of Review

      Due to the constitutional preference for searches to be conducted pursuant to

a warrant as opposed to a warrantless search, a trial court's determination whether

probable cause exists to support the issuance of a search warrant is subject to a

highly deferential standard of review, constrained solely to the “four corners” of the

probable cause affidavit. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App.

2011); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). An

appellate court should uphold the magistrate’s probable cause determination if it

finds the affidavit in support of the warrant provides the magistrate a “substantial

basis” for concluding that probable cause existed. McLain, 337 S.W.3d at 271.

Under this highly deferential standard, the court interprets the supporting affidavit

in a commonsensical and realistic manner, and defers to all reasonable inferences

that the magistrate could have made. McLain, 337 S.W.3d at 271.

      B.     The affidavit fails to provide an adequate recitation of the
             timeframe for the relevant facts.

      The Fourth Amendment requires that “[n]o warrants shall issue, but upon

probable cause, supported by [o]ath or affirmation.” U.S. CONST. amend. IV. Under
                                          8
Texas law, no search warrant may issue without a sworn affidavit that sets forth

facts sufficient to establish probable cause. TEX.CODE CRIM. PROC. ANN. art. 1.06

(West 2005), art. 18.01(b), (c) (West Supp. 2013); see TEX. CONST. art. I, § 9.

Probable cause exists when, 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 at the time the warrant is issued. State v. Duarte, 389 S.W.3d 349, 354

(Tex. Crim. App. 2012). Probable cause is a “flexible and non-demanding

standard.” McLain, 337 S.W.3d at 272 (Tex. Crim. App. 2011) (citing Rodriguez v.

State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)).

      A magistrate must be able to ascertain from the affidavit the closeness of

time of the event that is the basis for probable cause sufficient to issue the warrant

based on an independent judgment of probable cause. See, e.g., Schmidt v. State,

659 S.W.2d 420, 421 (Tex. Crim. App. 1983). The facts stated in a search affidavit

“must be so closely related to the time of the issuance of the warrant that a finding

of probable cause is justified.” McLain at 272 (quoting Flores v. State, 827 S.W.2d

416, 418 (Tex. App.-Corpus Christi 1992, pet. ref'd)).

      The affidavit authored by Officer McCord states that a meeting occurred with

a confidential informant “within the past 48 hours.” DX1 at 3-4. But the affidavit

does not recite any information obtained from the informant during the meeting.


                                           9
There is no allegation of any tip that Appellant was selling narcotics or that that

narcotics were being sold from or possessed within 4810 Hazard.

      In a separate paragraph the affidavit describes a controlled buy performed by

the informant, but it does not state when it occurred. DX1 at 3-4. This paragraph

opens with the statement that the informant was searched “during the meeting and

before and after the investigation,” indicating that “the investigation” occurred at a

different time and possibly at a different location. But the affidavit fails to indicate

when “the investigation” occurred relative to the meeting or to the submission of

the warrant application. There are no words which might give clues as to the

sequence of events, such as next, then, or thereafter. Even if it could be inferred that

“the investigation” refers to the controlled buy described in the affidavit, the

affidavit provides no facts establishing when such events occurred.

      A reviewing court is not authorized to infer that the facts listed in a warrant

affidavit occurred within a reasonable time period in the absence of a specific

averment. In Peltier v. State, 626 S.W.2d 30, 32 (Tex. Crim. App. 1981), the Court

invalidated a warrant issued on the basis personal observations of the affiant and a

fellow detective because the affidavit failed to indicate when the observations were

made. The Court rejected the State’s argument that it could be inferred that the

averments set forth were “recently observed,” noting that such conclusion would be


                                           10
“no more than speculation.” Id. Because “the magistrate could not ascertain the

closeness of time sufficient to issue the warrant based on an independent judgment

of probable cause,” the warrant was invalid. Id.

      Similarly, in Sherlock v. State, 632 S.W.2d 604 (Tex. Crim. App. 1982), the

warrant affidavit described an unnamed informant’s report of witnessing a shooting

and the perpetrator’s confession. Id. at 608. Noting that there was “nothing in this

statement to convey to a magistrate any definite idea as to when the alleged incident

took place,” the Court invalidated the warrant. See also Gonzales v. State, 577

S.W.2d 226, 228 (Tex. Crim. App. 1979) (affidavit in support of search warrant

which did not say when the officers received the information from their informer

nor when the informer obtained his information rendered the warrant invalid).

      The only averment concerning the timing of the facts set forth in the affidavit

is that a meeting with the informant occurred within the past 48 hours. The affidavit

contains no facts from which one could ascertain when the alleged controlled buy

occurred. Accordingly, the affidavit contains no facts supporting the conclusion

that contraband was likely on the premises at the item of issuance.

      Exacerbating this deficiency is the fact that the affidavit contains no other

allegations of other sources of information concerning drug-trafficking activity at

the location. Notably, the affidavit lacks any assertion that the alleged controlled


                                          11
buy was preceded by a tip or the receipt of any information concerning drug sales

or possession at the residence or by Appellant. The affidavit states that that officers

met with the informant “regarding narcotics activity at 4810 Hazard” but does not

recite any information that the informant might have provided on the subject. The

circumstances of a controlled buy, standing alone, may corroborate an informant’s

tip and provide probable cause to issue a warrant. See Ford v. State, 179 S.W.3d

203, 212 (Tex.App.-Houston [14th Dist.] 2005, pet. ref’d); Sadler v. State, 905

S.W.2d 21, 22 (Tex.App.-Houston [1st Dist.] 1995, no pet.). But a single controlled

buy, in the absence of a tip, does not corroborate anything and hence does not

provide the same level of suspicion to support the issuance of a warrant. See State v.

Griggs, 352 S.W.3d 297, 303 (Tex. App. –Houston [14th Dist] 2011, pet ref’d) (“tip

combined with the subsequent controlled buy provides facts from which a

magistrate could reasonably infer that the sale of cocaine was an ongoing enterprise

rather than an isolated incident”).

      The Court of Criminal Appeals emphasized the distinction between an

affidavit that describes a single isolated event and one describing ongoing activity

in Jones v. State, 364 S.W.3d 854 (Tex. Crim. App. 2012). The Court upheld the

warrant, despite the fact that the affidavit failed to indicate when a controlled drug

buy took place, because the affidavit included other facts that, in sequence,


                                          12
indicated ongoing, protracted drug activity. Specifically, the Court relied upon the

averment that the affiant had “recently” received information form at least two

informants that the defendant was seen in possession of marijuana at his residence,

in conjunction with the averment that the controlled buy was conducted by another

informant “after” receiving the initial information. Id. at 858-859. The Court found

this combination and sequence of information was sufficient to establish probable

cause that a continuing drug business was being operated from the residence, “a

secure operational base.” Id. at 862-863. The Court noted that where the affidavit

recites “a mere isolated violation,” probable cause dwindles rather quickly with the

passage of time; but where the affidavit recites facts consistent with ongoing drug

activity the passage of time becomes less significant. Id. at 860-861. Where only

one isolated violation is described, imprecision with respect to time becomes fatal

because a court cannot ascertain whether or not the information is stale. Id. at 861.

      That is the problem with the instant affidavit. It describes only one isolated

incident – the controlled buy – and fails to indicate when that incident occurred.

The affidavit supplies neither of the elements that saved the warrant in Jones. It

fails to include information regarding drug activity from any other source, and it

does not even indicate when the controlled buy occurred relative to the meeting

with the informant or the submission of the warrant application.


                                          13
      Similarly, in State v. McLain, 337 S.W.3d 268, 270-273 (Tex. Crim. App.

2011), the Court of Criminal Appeals validated a warrant, despite the affidavit’s

imprecise recitation as to the timing of the relevant facts, because the affidavit

recited information from numerous sources indicating ongoing narcotics activity.

The only specific indication of a timeframe for the relevant facts was the statement:

“In the past 72 hours, a confidential informant advised the Affiant that Chris was

seen in possession of a large amount of methamphetamine at his residence and

business.” Id. The court of appeals had invalidated the warrant, focusing solely on

the reference to the “past 72 hours” and finding that it referred to when the

detective spoke to the informant, not to when the informant got the information

about the defendant. Id. The Court of Criminal Appeals agreed that the plain

meaning of the statement, read literally, failed to clearly indicate when the

informant got the information. Id. at 272. But the Court found that “looking at the

affidavit in its entirety, and not just this one sentence in isolation,” the affidavit was

sufficient. Id. at 273. The statement describing the information obtained in the “past

72 hours” followed a long detailed recitation of other information indicating

ongoing narcotics trafficking, including: information from unknown callers

through the crime line that the defendant “is” storing and selling methamphetamine

at his residence; information from informants that the defendant “is” buying or


                                           14
taking stolen items for payment on narcotics; information from informants that the

defendant was a user of methamphetamine and associated with other users and

dealers of methamphetamine; surveillance on the suspected place a showing some

minute traffic by known users or dealers of narcotics, most heavy at night, which is

very common in the use or sale of methamphetamine; and information from various

informants that the defendant will hide or store the methamphetamine in all

different kinds of places, from inside the residence and shop to the vehicles and

trailers on property, or in loose bricks around a fireplace, or in toolboxes. Id. at

269-270. The Court found that, “considering all the facts in the affidavit along with

reasonable inferences from those facts,” it was reasonable for the magistrate to

conclude that there was a fair probability that there was methamphetamine at the

defendant's home at the time of the issuance of the warrant. Id. at 273.

      The affidavit in the instant case falls far short of the affidavit in McLain. It

lacks any information beyond the single controlled buy supporting an inference of

ongoing drug trafficking, which was critical to the Court’s holding in McLain.

Additionally, in the McLain affidavit the reference to the “past 72 hours” occurs in

the same sentence as the description of the first-hand information supplied by the

informant, indicating that the affiant likely just misplaced the clause within the

sentence. But in the instant affidavit, the statement “within the last 48 hours”


                                           15
describes only a meeting the informant, whereas the facts of the controlled buy are

described in a different paragraph.

      Accordingly, the factual recitation in the affidavit, and the reasonable

inferences from those facts, fail to provide a substantial basis for finding probable

cause. The trial court erred in denying the motion to suppress.

                                 Issue Two:
      The warrant is invalid because it contains material misstatements
   or omissions made intentionally or with reckless disregard for the truth.

      A.     Standard of Review

      A trial court’s decision on a Franks suppression issue is reviewed under a

mixed standard of review: almost total deference is given to a trial court's rulings on

questions of historical fact and application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor, while application-of-law-to-fact questions

that do not turn upon credibility and demeanor are reviewed de novo. Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      Appellant asserts that de novo review is appropriate here because no

credibility determinations are at issue. Even assuming that the testimony of Officer

McCord and Sergeant Yencha is credible and true, as found by the trial court in its

adoption of the State’s proposed fact findings (4RR5, 8; CR64), the affidavit fails to

establish probable cause in light of the required Franks analysis. The Franks


                                          16
“reckless disregard for the truth” standard is objective; accordingly, trial judges are

no better equipped than are appellate judges to determine whether a reasonable

person should have known that a statement was misleading. United States v.

Cronan, 937 F.2d 163, 164 (5th Cir. 1991) (the requisite intent of “reckless

disregard for the truth” may be inferred from objective criteria, namely, an affidavit

omitting facts that are clearly critical to a finding of probable cause); Wall v. State,

184 S.W.3d 730, 743 (Tex. Crim. App. 2006) (objective standards are reviewed de

novo).

         B.    The affidavit contains intentionally or recklessly made
               misstatements/omissions.

         If a defendant establishes by a preponderance of the evidence that a false

statement made knowingly, intentionally, or with reckless disregard for the truth

was included in a probable cause affidavit and if it was material to establish

probable cause, the false material must be excised from the affidavit. Franks v.

Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). If the

remaining content of the affidavit does not then still establish sufficient probable

cause, the search warrant must be voided, and the evidence resulting from that

search excluded. Franks, 438 U.S. at 155–56; Harris v. State, 227 S.W.3d 83, 85

(Tex. Crim. App. 2007). Material omissions are treated the same as false

statements. United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980); Blake v.

                                           17
State, 125 S.W.3d 717, 723–24 (Tex. App.-Houston [1st Dist.] 2003, no pet.);

Melton v. State, 750 S.W.2d 281, 284 (Tex. App.-Houston [14th Dist.] 1988, no

pet.). If a defendant establishes by a preponderance of the evidence that in a

probable cause affidavit, first, omissions of fact were made, and second, such

omissions were made intentionally or with a reckless disregard for the truth, the

warrant will be held invalid if the inclusion of the omitted facts would vitiate

probable cause. State v. Verde, 432 S.W.3d 475, 484 (Tex. App.–Texarkana 2014,

pet. ref’d).

       The only fact supporting probable cause to issue the warrant is the

description of an alleged controlled buy by an informant from Appellant at his

residence. DX1 at 3-4. Officer McCord’s affidavit states that “[a]ffiant did not find

any illegal narcotics and money after checking the confidential informant during the

meeting and before and after the investigation.” During the Franks hearing, Officer

McCord testified that her simple pat-down of the informant prior to the controlled

buy would only “possibly” reveal a small quantity of methamphetamine. The

quantity turned over by the informant weighed 1.04 grams (2RR87; DX2 at 2);

courts have taken judicial notice that a gram is the quantity in a standard packet of

sugar-substitute. See, e.g., Johnson v. State, 2001 WL 665546, *3 (Tex. App. - El

Paso 2001, no pet.) (not designated for publication); Harris v. State, 905 S.W.2d


                                          18
708, 712 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). Such a small quantity

could easily be concealed in socks, shoes, or undergarments, so as to avoid

detection in a pat-down of outer clothing.

      By averring that she did not find narcotics after “checking” the informant,

McCord conveyed to the magistrate that she conducted a search that would be

minimally effective and adequate to reveal the presence of small quantities of

narcotics. Otherwise, the search would be pointless, and its inclusion in the affidavit

meaningless. A reviewing court is required to assume that a magistrate will use her

“experience and expertise” to construe statements so as to present relevant, rather

than irrelevant, information. McLain, 337 S.W.3d at 273.

      McCord misled the magistrate by conveying that she effectively searched the

informant for contraband, or, alternatively, by failing to inform the magistrate that

her chosen method of searching would only “possibly” reveal small quantities of

drugs. The Franks rule applies to “both misstatements and misleading omissions, as

well as outright falsehoods.” Norris v. State, 1992 WL 234902, *3 (Tex. App.-

Houston [1st Dist.] 1992, pet. refd ) (not designated for publication), citing United

States v. Cronan, 937 F.2d 163, 165 (5th Cir. 1991) (omissions) and United States

v. Martin, 615 F.2d 318, 328 (5th Cir. 1980) (misstatements and omissions).




                                          19
McCord knew or should have known that the statement was misleading; it was at

least reckless to include the statement without clarifying that the pat-down search

was only “possibly” effective for purposes of detecting small quantities of

narcotics.

      C.     The remainder of the affidavit is insufficient to establish probable
             cause.

      If the remaining content of the affidavit does not establish sufficient probable

cause, the search warrant must be voided, and the evidence resulting from that

search excluded. Franks, 438 U.S. at 155–56; Harris, 227 S.W.3d at 85. When

evaluating residual probable cause in circumstances where part of a warrant

affidavit must be excluded from the calculus, such evaluation is conducted without

any deference to the magistrate. McClintock v. State, 444 S.W.3d 15, 20-21 (Tex.

Crim. App. 2014); see also United States v. Shamaeizadeh, 80 F.3d 1131, 1135-36

(6th Cir. 1996) (review of probable cause in those cases involving affidavits

redacted pursuant to Franks is de novo).

      Without a reasonably effective search, a “controlled buy” is not controlled. In

Harris v. State, 184 S.W.3d 801 (Tex.App.-Fort Worth 2006), rev'd on other

grounds, 227 S.W.3d 83 (Tex.Crim.App.2007), a “controlled buy” was not

sufficient, by itself, to show probable cause supporting issuance of search warrant



                                           20
because the officer admitted that he searched only the informant’s pockets and that

the informant could have had drugs concealed elsewhere on his body. Id. at 813.

      Courts have found a single “controlled buy” sufficient to corroborate an

informant’s tip and support the issuance of a warrant, but have done so only when

proper procedures were followed. See State v. Griggs, 352 S.W.3d 297, 305 (Tex.

App.–Houston [14 Dist.] 2011, pet. ref’d.) (“controlled buy” sufficient to establish

probable cause where officer “first checked the informant to make sure the

informant possessed no money or contraband”); Sadler v. State, 905 S.W.2d 21, 22

(Tex.App.-Houston [1st Dist.] 1995, no pet.) (the circumstances of a “controlled

buy” sufficient to reasonably confirm an informant’s information and give probable

cause to issue a search warrant where informant was searched before entering

suspected premises); Salazar v. State, 806 S.W.2d 291, 293–94 (Tex.App.—

Amarillo 1991, no pet.) (“controlled buy” sufficient for issuance of warrant where

informant was searched and found to be without narcotics prior to buy); Ford v.

State, 179 S.W.3d 203, 212 (Tex. App.–Houston [14 Dist.] 2005, pet. ref’d) (single

“controlled buy” sufficient where the affidavit stated that the informant was

searched by the affiant for contraband and then given money to purchase drugs

from a suspect inside the apartment); Richardson v. State, 622 S.W.2d 852, 856-577

(Tex. Crim. App. 1981) (“controlled buy” sufficient where affidavit stated that prior


                                         21
to allowing the informant to go into appellant’s residence he was strip searched and

his car was thoroughly searched for contraband).

      Appellant is aware of one case, Williams v. State, 37 S.W.3d 137, 140-41

(Tex.App.-San Antonio 2001, pet. ref'd), that has been cited for the proposition that

the absence of a prior search does not render a “controlled buy” insufficient to

support a warrant. See, e.g., Smith v. State, 2002 WL 31264854, *4 (Tex. App.-

Houston [1 Dist.] 2002, pet. ref’d) (not designated for publication) (citing Williams

for proposition that “the absence of a prior search does not alone establish

insufficiency of an affidavit for probable cause); Robinson v. State, 2002 WL

595137, *4 (Tex.App.-Hous. [1st Dist.] 2002, pet. ref’d) (not designated for

publication) (same). These cases characterize the holding in Williams as affirming

the denial of a motion to suppress “where informant was not searched before or

kept in view during buy.” Id., see also Griggs, 352 S.W.3d at 305. But these cases

mischaracterize the holding in Williams.

      The court of appeals in Williams evaluated the contents of an affidavit for

probable cause. 37 S.W.3d at 140. The opinion lists certain contents of the affidavit,

including the fact that “Deputy P. Askew of the Harris County Sheriff's Department

utilized the confidential informant to make a controlled buy of cocaine by sending

the informant to the garage apartment.” Id. at 140. The opinion does not indicate


                                           22
whether its list is a verbatim excerpt from the affidavit or merely a condensed

summary. Id. There is no indication that the appellant specifically challenged the

sufficiency of the controlled buy procedure. The court of appeals found the

allegations to be sufficient, without any discussion of whether the “controlled buy”

included a search. Id. at 141. Because the phrase “controlled buy” is a term of art

that implies the use of certain procedures, including a search of the informant and

some measure of surveillance, it is inaccurate to conclude that the Williams court

specifically validated a warrant as the basis of a “controlled buy” conducted without

a search of the informant. There is no way to ascertain from the opinion whether the

affidavit in fact included a description of an initial search, or whether the court of

appeals presumed that such a search is implicit in the term “controlled buy.”

      Accordingly, there is no published Texas authority validating a warrant

issued solely on the basis of a “controlled buy” conducted without a reasonably

effective initial search of the informant. But that is not the only deficiency present.

As addressed in Issue One, the affidavit does not indicate when the buy occurred,

and does not supply any information, aside from the buy itself, supporting an

inference of ongoing narcotics activity to cure the lack of an allegation of a

timeframe for the buy. Jones, 364 S.W.3d at 861; McLain, 337 S.W.3d at 273.

Furthermore, the affidavit contains no allegation that the informant saw additional


                                           23
narcotics in the residence. Reviewing the remainder of the affidavit de novo,

without any deference to the magistrate, it is insufficient to support a finding of

probable cause.

      This Court should find that the trial court erred in denying the motion to

suppress, and should reverse and remand the case for a new trial.

               Issue Three – Disclosure of the Informant’s Identity

      A.     Standard of Review

      A trial court's denial of a motion for disclosure of a confidential informant is

reviewed under the abuse-of-discretion standard. Taylor v. State, 604 S.W.2d 175,

179 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 98 S.W.3d 349, 355

(Tex. App.- Houston [1st Dist.] 2003, pet. ref'd). Under that standard, a trial court's

decision is disturbed on appeal only when it falls outside the zone of reasonable

disagreement. Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App.1996), cert.

denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).

      B.     Applicable Law

      Under Rule of Evidence 508, the State has a “privilege to refuse to disclose

the identity of a person who has furnished information relating to or assisting in an

investigation of a possible violation of a law to a law enforcement officer.” TEX. R.

EVID. 508(a). That privilege is subject to several exceptions. One exception applies


                                          24
when “information from an informer is relied upon to establish the legality of the

means by which evidence was obtained” and when “the court is not satisfied that

the information was received from an informer reasonably believed to be reliable or

credible.” TEX. R. EVID. 508(c)(3). Also, a court must order disclosure of the

individual’s identity if the informant may reasonably be able to provide testimony

necessary to a fair determination of guilt or innocence. TEX. R. EVID. 508(c)(2). If it

appears from the evidence in the case, or from some other showing by a party, that

an informant may be able to give testimony necessary to a fair determination of

guilt or innocence, and the State invokes the privilege, the trial court must give the

State an opportunity to show in camera facts relevant to determining whether the

informant can, in fact, supply that testimony. Id.

      The “defendant has the threshold burden to show that the informant's identity

must be disclosed.” Sanchez v. State, 98 S.W.3d 349, 355 (Tex. App.-Houston [1st

Dist.] 2003, pet. ref'd). To satisfy this burden, “the defendant must present

evidence, from any source, but cannot rely on mere speculation or conjecture.” Id.

“Because the defendant may not actually know the nature of the informant’s

testimony, the defendant need make only a plausible showing of how the

informant's testimony may be important.” Id. at 355–56. “Before a court orders the

identity of the informant to be revealed, the informant’s potential testimony must be


                                          25
shown to significantly aid the defendant; mere conjecture about possible relevance

is insufficient to meet the threshold burden.” Haggerty v. State, 429 S.W.3d 1, 8

(Tex. App.-Houston [14th Dist.] 2013, pet. ref'd); Sanchez, 98 S.W.3d at 356. Only

“after a defendant makes a plausible showing is the trial court required to hold an in

camera hearing to determine whether disclosure is necessary.” Haggerty, 429

S.W.3d at 8.

      Appellant asserted in the trial court that the informant’s testimony might be

relevant to a determination of guilt or innocence, pursuant to Rule 508(c)(2),

because the informant could testify as to the identity of the person with whom

he/she conducted the alleged buy. If someone other than Appellant conducted the

transaction, such evidence would be exculpatory. 2RR123-24. This claim was

supported by the affidavits of Appellant and Nassim Joseph indicating that

Appellant was at a restaurant with Joseph at the time of the alleged buy. DX3; DX7.

Additionally, Appellant’s phone records and coordinate search results indicate that

Appellant’s phone was at the location of the restaurant at or near the time of the

alleged buy. DX4; DX6.

      Appellant also asserted that the informant’s testimony was relevant, pursuant

Rule 508(c)(3), to the legality of the means by which the evidence was obtained.

2RR123-25. Because Appellant’s submitted affidavits and documentary evidence


                                          26
indicate that Appellant was away from home at the time of the alleged buy, the

informant could provide testimony regarding the procedures utilized in conducted

the buy, which would inform the determination of whether the informant’s

information was “reasonably believed to be reliable or credible.” TEX. R. EVID.

508(c)(3).

      By requiring the State to produce the informant for in camera testimony, the

trial court implicitly found that Appellant had met his initial burden of a plausible

showing that the informant’s testimony might be relevant to the motion to suppress

or to a fair determination of guilt or innocence.

      Appellant requests that the Court review the sealed transcript of the in

camera hearing to determine whether the trial court abused its discretion in denying

the motion for disclosure. Specifically, the Court should determine whether the

testimony of the informant (1) could significantly aid the defense in the guilt-

innocence determination, or (2) reveals that the informant’s information was not

“reasonably believed to be reliable or credible.” TEX. R. EVID. 508(c)(3). If the

Court finds that either of these criteria is met, the Court should conduct a harm

analysis pursuant to Texas Rule of Appellate Procedure 44.2(b). Sanchez v. State,

98 S.W.3d 349, 356-57 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (stating trial

court’s failure to order disclosure of confidential informant’s identify is non-


                                          27
constitutional error governed by TEX. R. APP. P. 44.2(b)). If the error is found to

have a substantial and injurious effect on the verdict, the conviction should be

reversed and the case remanded for a new trial. Id.

                                      PRAYER

      Appellant respectfully requests that the Court reverse his conviction and

remand for a new trial.

                                        Respectfully submitted,


                                        /s/ Norman J. Silverman
                                        NORMAN J. SILVERMAN
                                        Texas Bar No. 00792207
                                        917 Franklin, 4th Floor
                                        Houston, Texas 77002
                                        (713) 526-1515
                                        (713) 526-1798 (FAX)
                                        lawyernorm@msn.com

                                        ATTORNEY FOR APPELLANT




                                          28
                         CERTIFICATE OF SERVICE


      This document has been electronically served on the following parties
contemporaneously and in conjunction with e-filing on March 19, 2015.

Alan Curry
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002
curry_alan@dao.hctx.net

                                      /s/ Norman     J. Silverman



                     CERTIFICATE OF COMPLIANCE

       This document has been prepared with Microsoft Word 2010, and the
sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain 6,243
words according to the program’s word-count function.



                                      /s/ Norman     J. Silverman




                                           29
