      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
                                    444444444444444444
                                        ON REMAND
                                    444444444444444444

                                      444444444444444
                                      NO. 03-01-00625-CR
                                      444444444444444


                                David Daniel Lauer, Appellant

                                                 v.

                                   The State of Texas, Appellee



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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
          NO. 9014067, HONORABLE BOB PERKINS, JUDGE PRESIDING
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                           MEMORANDUM OPINION


              This court affirmed the trial court’s judgment of appellant’s conviction for the offense

of capital murder. The court of criminal appeals granted appellant’s petition for discretionary

review. That court remanded the cause for our reconsideration of appellant’s point of error

challenging the trial court’s ruling on the validity of the search warrant. Appellant’s remaining

grounds for review were refused.

              Appellant urges that the trial judge erred in overruling his motion to suppress the

evidence from the search of his vehicle. More specifically, appellant contends that the affidavit
presented to the magistrate did not establish probable cause to believe either that an offense occurred

or that relevant evidence would be obtained.


                                            Law Applicable

                 Statutes based on and reflecting constitutional requirements provide that:


         No search warrant shall issue for any purpose in this state unless sufficient facts are
         first presented to satisfy the issuing magistrate that probable cause does in fact exist
         for its issuance. A sworn affidavit setting forth substantial facts establishing
         probable cause shall be filed in every instance in which a search warrant is requested
         ....


Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 2004). Article 18.02 of the Texas Code of

Criminal Procedure in pertinent part provides that a search warrant may be issued to search for and

seize property acquired by theft or in any other manner which makes its acquisition a penal offense;

property specifically designed, made, or adapted for or commonly used in the commission of an

offense; implements or instruments used in the commission of a crime; property or items, except the

personal writings by the accused, constituting evidence tending to show that a particular person

committed an offense. Tex. Code Crim. Proc. Ann. art. 18.02(1), (2), (9), (10), (11) (West Supp.

2004).

                 In pertinent part, Article 18.01(c) provides:


         A search warrant may not be issued pursuant to subdivision (10) of Article 18.02 of
         this code unless the sworn affidavit required by subsection (b) of this article sets forth
         sufficient facts to establish probable cause: (1) that a specific offense has been
         committed, (2) that the specifically described property or items that are to be
         searched for or seized constitute evidence of that offense or evidence that a particular
         person committed that offense, and (3) that the property or items constituting

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        evidence to be searched for or seized are located at or on the particular person, place,
        or thing to be searched.


Tex. Code Crim. Proc. Ann. art. 18.01(c) (West Supp. 2004).


                                         Standard of Review

                An appellate court reviews a trial court’s ruling on a motion to suppress under a

bifurcated standard of review by giving almost total deference to a trial court’s determination of

historical facts and reviewing de novo the court’s application of the law of search and seizure.

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); State v. Duncan, 72 S.W.3d 803,

805 (Tex. App.—Fort Worth 2002, pet. dism’d, untimely filed). Whether the facts alleged in a

probable cause affidavit sufficiently support a search warrant is determined by examining the totality

of circumstances. Illinois v. Gates, 462 U.S. 213, 230-31 (1983); Ramos v. State, 934 S.W.2d 358,

362-63 (Tex. Crim. App. 1996). The magistrate is permitted to draw reasonable inferences from the

facts and circumstances alleged. Ramos, 934 S.W.2d at 362-63. Reviewing courts should accord

great deference to the magistrate’s determination. Ramos, 934 S.W.2d at 363. Appellate review of

the trial court’s probable cause determination is a de novo review, applying the same standard as the

trial court, and the appellate court is required, as was the trial court, to give the magistrate’s decision

to issue the warrant great deference. Duncan, 72 S.W.3d at 806.

                In determining the sufficiency of an affidavit for a search warrant, a reviewing court

is limited to the four corners of an affidavit. Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim.

App. 1987); Mayfield v. State, 800 S.W.2d 932, 934 (Tex. App.—San Antonio 1990). The affidavit

must be read in a common sense and realistic manner, and reasonable inferences may be drawn from

                                                    3
the facts and circumstances contained in its four corners. Gates, 462 U.S. at 230-31; Lopez v. State,

535 S.W.2d 643, 647 (Tex. Crim. App. 1976). If, in a particular case, it may not be easy to

determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful

or marginal cases in this area should be largely determined by the preference to be accorded to

warrants. United States v. Ventresca, 380 U.S. 102, 109 (1965); Lopez, 535 S.W.2d at 647.


                                           This Affidavit

               In the affidavit furnished to support the issuance of the search warrant in this case,

the affiant alleged appellant had abducted and kidnapped Helen Frost. Affiant further alleged that

a specifically described pickup truck that was owned by another person but in control of appellant

was located on a parking lot at the Hyatt Regency Hotel at 208 Barton Springs Road in Austin,

Travis County, Texas. Also, it was alleged that evidence showing appellant had committed the

offense alleged was kept and concealed in the pickup truck. The alleged evidence enumerated was

blood, hair, fiber, bodily fluids, including, but not limited to, seminal fluid, vaginal secretions, and

saliva; fingerprints, the body of Helen Frost, or any part thereof, shoe prints, foot prints, sexual

devices, condoms, restraints, female clothing, including, but not limited to, bras, underwear, shorts,

shirts, shoes, beige and black thong-type sandals, jewelry, eyeglasses, and hairclips.

               The State has accurately summarized substantially as follows the facts and

circumstances stated by the affiant to show probable cause. On October 7, 1999, Helen Frost’s

father, James Frost, reported that Helen, 21 years old, had been missing for two days and had never

been gone that long without contacting her parents. Sean Hackett, Helen’s boyfriend, told police he

had last spoken to Helen on October 6, 1999, at 8:30 a.m., at which time she had told him she was

                                                   4
going to work. She worked for a person named David. Helen Frost told Sean Hackett to call her

back at 3:00 p.m. that day to make arrangements for that evening. He called her work and home

phone numbers but was unable to reach her. Sean Hackett had not seen or spoken to Helen Frost

since.

               On October 8, 1999, Ana Roe, a friend of Helen Frost’s, found Helen’s car at 2025

W. Ben White in a grocery store parking lot. Upon investigation, police found the car locked with

Helen Frost’s purse inside. It did not appear to be tampered with; her identification and bank debit

card were still in the purse. The police did not find the car keys either outside or inside the car. The

police determined that the car was functioning properly.

               On October 8, 1999, upon a consent search of appellant’s house and storage shed,

police found what appeared to be drops of blood on a pair of blue jeans and tennis shoes that

appellant said were his. They found a glove in appellant’s storage shed which appeared to have

blood on it as well. Police found a ring, which appellant said belonged to Helen Frost, in a chest of

drawers in appellant’s bedroom. Appellant told police that Helen Frost worked for him and that

sometimes he and Helen worked out of his house.

               On October 11, 1999, police interviewed appellant at which time he told them that

he had a red 1993 Chevrolet pickup truck, Texas license plate JU7920, and that he was currently

driving that vehicle. Appellant told police that he had talked to Helen Frost on October 5, 1999, at

which time he had told her to come to his house on October 6, 1999 to pick up some work.

Appellant told police that Helen never showed up. He told police that he could recall his activities

for every day of the last week except for the morning of October 6, 1999.



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               Appellant told police he enjoyed “gasping sex,” by which he meant rough sex in

which he strangled his partner during sexual intercourse until she either passed out or reached

orgasm. Appellant acknowledged to the police that it was possible to kill a partner that way. Police

observed appellant had a bruise and a long scratch on his left thigh, a scratch on the back of his neck,

a scratch on his left forearm, and a scratch and a bruise on his left shin.

               Sean Hackett informed police that Helen Frost told him that appellant had made

romantic advances toward her and had given her alcoholic beverages at work. Helen Frost told Sean

Hackett that she had resisted those advances and she described appellant as “creepy.” Amanda

Garrett, Helen Frost’s roommate, confirmed this information for the police.

               Police obtained appellant’s cellular telephone records and found that on October 6,

1999, appellant placed six calls between 8:09 a.m. and 8:38 a.m. After that time no calls were placed

until 2:27 p.m., a six-hour gap. Police also found that appellant was on felony deferred adjudication

probation out of the 331st District Court of Travis County, Texas, for indecency with a child by

exposure.

               We cannot agree with appellant that the affidavit is deficient in that it does not

explain why the affiant believed appellant may have kidnapped Helen Frost or why the affiant

believed evidence might be found in appellant’s pickup truck. The magistrate could reasonably find

from the affidavit a reasonable and logical inference of a nexus between appellant and Helen Frost’s

disappearance. By October 11, 1999, when the magistrate issued the search warrant, Helen Frost had

been missing for five to six days. The facts stated in the affidavit gave the magistrate more than

mere suspicion to believe that Helen Frost had been the victim of foul play by appellant. Helen



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Frost’s car, purse, identification, and ring had all been located and were not in her possession.

Appellant was in possession of her ring. Appellant had scratches and bruises on him, and what

appeared to be blood on his jeans, shoes, and a glove. On October 6, 1999, Helen Frost had departed

her home to go to appellant’s house to pick up some work. Appellant’s contentions that she never

showed up and that he could not remember what he did that morning, despite the fact that he could

remember everything else he did that week, were not credible.

               The magistrate could reasonably infer that appellant was lying when he told police

these things. The four corners of the affidavit told a set of facts and events which gave rise to an

inference that appellant told Helen Frost to come to his home under the guise of picking up work so

that he could engage in the violent sexual activity he liked to practice which he called “choking sex”

and which could kill a woman upon whom it was inflicted. His sexual attraction to Helen Frost was

not reciprocated. The magistrate had good reason to believe that Helen Frost would not submit to

appellant’s sexual advances willingly and that appellant would have to use force. The magistrate had

good reason to believe that appellant did in fact use force against Helen Frost. The length of time

she had been missing, the fact that her roommate, friends, and family had not heard from her, that

she had never gone so long without contacting her parents, together with her car and purse being

located in a grocery store parking lot late at night, after business hours, with Helen Frost nowhere

to be found, the car keys being missing, her ring being found in appellant’s bedroom chest of

drawers, the blood being observed on appellant’s glove, blue jeans, tennis shoes, and the scratches

and bruises observed by police on appellant, when all viewed together, indicated that foul play had

been inflicted upon her by appellant and that she was either dead or being held captive by appellant.



                                                  7
Police had searched appellant’s home and storage shed and not found Helen Frost or her body. It

was reasonable for the magistrate to believe that appellant had transported Helen Frost from his

home in his truck in order to forcibly impose his sexual desires upon her and that evidence of an

abduction of and violence against Helen Frost, perpetrated by appellant, might reasonably be found

in the truck.

                The articles for which the affiant asked the magistrate to authorize a search were all

items which one reasonably might expect police to search for in a case of a missing woman who was

believed to be the victim of an abduction and violence. Police asked to search for the body of Helen

Frost or any part thereof. They asked to search for trace evidence commonly deposited by the human

body, such as hair, blood, bodily fluids, and prints. They asked to search for ligatures, restraints,

sexual devices, and condoms. They also asked to search for female clothing, eyeglasses, hair clips,

and jewelry. The police limited their request to items dealing with (1) the finding of a human female

person, Helen Frost, parts of that person, trace evidence of that person, or her clothing or personal

accessories, and (2) evidence of restraints, ligatures, sexual devices, and condoms, the propriety of

the search for which was supported by appellant’s own statements to police about his sexual

predilections as well as what the police learned from Helen Frost’s friends about appellant’s sexual

attraction to Helen Frost and the fact that Helen Frost did not reciprocate that interest.

                Only the probability, and not a prima facie showing of criminal activity, is the

standard of probable cause. Spinelli v. United States, 393 U.S. 410, 419 (1969); Winkles, 634

S.W.2d 289, 297; Lopez, 535 S.W.2d at 647. The magistrate need not be provided with the very

evidence that the execution of the warrant may indeed reveal. Winkles, 634 S.W.2d at 297.



                                                  8
Likewise, the affiant is not shouldered with the identical burden that is necessary at trial to sustain

a conviction. Id. The validity of a search warrant does not depend on establishing guilt beyond a

reasonable doubt or by preponderance of the evidence. United States v. Harris, 403 U.S. 573, 584

(1971); Winkles, 634 S.W.2d at 297-298. The affidavit for search warrant in the instant case

supported, with facts and inferences therefrom sufficient to constitute probable cause, the

magistrate’s decision to issue the search warrant. Appellant’s contention that the affidavit for search

warrant was insufficient to show probable cause to search is without merit.


                                       Alternative Holdings

                                                  A

                Furthermore, the search of appellant’s vehicle is valid pursuant to the automobile

exception to the warrant requirement. Under the automobile exception, an officer may conduct a

warrantless search of a motor vehicle if the officer has probable cause to believe the vehicle contains

evidence of a crime. Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994) (citing Amos v.

State, 819 S.W.2d 156, 161 (Tex. Crim. App. 1991)). The exception extends to all types of motor

vehicles. Id.

                Although exigent circumstances did exist in this case, as appellant was at liberty to

move the vehicle at any time and at liberty to remove evidence or cleanse the vehicle of evidence

at any time, it would not be necessary for exigent circumstances to be present. The Court of

Criminal Appeals has expressly overruled all cases requiring exigent circumstances as a prerequisite

to a warrantless search of an automobile so long as probable cause exists to believe the automobile

contains evidence of a crime. State v. Guzman, 959 S.W.2d 631, 634 (Tex. Crim. App. 1998)

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(following United States v. Johns, 469 U.S. 478, 105 S. Ct. 881, 83 L. Ed. 2d 890 (1985); Michigan

v. Thomas, 458 U.S. 259, 102 S. Ct. 3079, 73 L. Ed. 2d 750 (1982); Florida v. Meyers, 466 U.S. 380,

104 U.S. 380, 104 S. Ct. 1852, 80 L. Ed. 2d 381 (1984); Texas .v White, 423 U.S. 67, 96 S. Ct. 304,

46 L. Ed. 2d 209 (1975); Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419

(1970)).

               In determining probable cause for warrantless searches and seizures, a reviewing

court should consider the totality of the circumstances. Gates, 462 U.S. at 230, Angulo v. State, 727

S.W.2d 276, 278 (Tex. Crim. App. 1987). The sum of the information known to the cooperating

officers at the time of a search by any of the officers involved is to be considered in determining

whether there was sufficient probable cause. Fearance v. State, 771 S.W.2d 486, 509 (Tex. Crim.

App. 1988); Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982).

               The facts available to the police provided them with more than an inarticulable hunch

or mere suspicion. The totality of the information gave the police probable cause to believe that

evidence that appellant committed kidnapping and violence against Helen Frost was probable to be

found in his truck.


                                                 B

               Finally, even if the search of the truck was not supported by probable cause or by a

valid search warrant, the admission of trace evidence found in appellant’s truck was tested and found

to contain the victim’s D.N.A. We have determined beyond a reasonable doubt that such evidence

in view of all of the evidence did not contribute to appellant’s conviction or punishment under Texas

Rule of Appellate Procedure 44.2(a). See Tex. R. App. P. 44.2(a). The testimony of Sean Hackett

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and appellant’s statements to the police demonstrated that Helen Frost left her home to go to

appellant’s house on October 6, 1999, at appellant’s request, supposedly to pick up some work.

Appellant denied to police that Helen Frost ever arrived. Notwithstanding appellant’s story,

appellant’s neighbors saw Helen Frost at appellant’s home on that day, saw her upset and crying,

observed appellant, angry and with raised voice, order her into his truck, heard Helen Frost say “no,”

heard appellant continue to order her into his truck, and observed appellant drive away with Helen

in his truck, leaving her own car behind at his home. That was the last time Helen Frost was seen

alive. None of the testimony as to the finding of the nude body of Helen Frost on October 11, 1999,

in a cultivated field, the clothes missing, the body in a posture that suggested sexual assault, of the

fact that Helen Frost had been dead from four to eight days, and of the medical examiner’s ruling

that her death was caused by homicidal violence of an undetermined type, was derived directly or

indirectly from the trace evidence found in appellant’s truck.

               Appellant’s point of error is overruled; the judgment of the trial court is affirmed.



                                               __________________________________________

                                               Carl E. F. Dally, Justice

Before Justices Kidd, B. A. Smith and Dally*

Affirmed

Filed: June 10, 2004

Do Not Publish
*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

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