                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00115-CR



           THE STATE OF TEXAS, Appellant

                            V.

            JORGE LOUIS VERDE, Appellee



         On Appeal from the 336th District Court
                 Fannin County, Texas
             Trial Court No. CR-11-23985




       Before Morriss, C.J., Carter and Moseley, JJ.
            Opinion by Chief Justice Morriss
                                                OPINION
           “For want of a nail the kingdom was lost.”                   That summary of an old proverb 1 is

particularly apt to the cases before us involving Jorge Louis Verde. Verde might have his

community supervision revoked in eight cases 2 because of contraband found in his house. The

search that resulted in the discovery of the contraband was based on a warrant, which, in turn,

was issued based on an affidavit by Detective Shane Stone. The trial court has now ordered the

contraband suppressed based on its findings that Stone’s affidavit deliberately misled the

warrant-issuing judge 3 by omitting key information. We agree. We affirm the trial court’s

ruling because (1) the trial court did not err in granting Verde a suppression hearing, (2) a

Franks 4 violation can be based on an omission of facts in a warrant affidavit, and (3) the trial

court did not err in suppressing the evidence.




1
 In that proverb, the lack of a nail caused a key horse to throw a shoe, thus setting off a chain of events ending in
disaster. Because his horse threw a shoe, the rider of that horse was lost to his side, resulting, ultimately, in the loss
of a key battle in defense of the kingdom.
2
 Verde was on community supervision in eight cases. Based on statements made by the State, it appears that drugs
and a weapon were found in the search of Verde’s house. The trial court’s suppression of that contraband
effectively ended the State’s attempt to adjudicate and revoke Verde’s community supervision on all eight cases.
This opinion addresses the merits of the State’s appeal of the suppression ruling; seven companion cases are issued
of even date herewith.
3
 The judge of the 336th Judicial District Court signed the search warrant; however, she recused herself, and an
appointed district judge heard and ruled on the motion to suppress. The appointed judge found that a deliberate or
reckless falsity in the affidavit invalidated the search warrant and, thus, granted Verde’s motion to suppress the
evidence found through the execution of the warrant.
4
    See Franks v. Delaware, 438 U.S. 154 (1978).


                                                            2
            The objections to the warrant affidavit’s contents 5 center on two main points. The

affidavit affirmatively misrepresented that Verde “could not identify” to Stone the person from

whom he purchased the trailer, yet the trial court found, based on evidence adduced at the

suppression hearing, that Verde called Laurenzio Soto, the seller, in the presence of Stone at the

time of the trailer inspection and offered to have him talk with Stone. The affidavit also omitted

the detail that the theft report had been made in 2001, eleven years before Stone’s encounter with

Verde and eight years before Verde purchased the trailer, although the affidavit stressed the

allegation that Verde failed to explain the reason Verde had waited three years to seek the

trailer’s registration.

5
    Stone’s affidavit made these assertions:
     • He met Verde for purposes of inspecting a trailer;
     • The trailer did not have the appropriate Vehicle Identification Number markings: the “public VIN number had
       been removed”;
     • “[A] hidden VIN was located” in a location known only to manufacturers and law enforcement;
     • The VIN was matched to a report of a 2000 Big Tex trailer reported stolen in Irving, Texas;
     • Stone noted fresh paint, new flooring, and a new hitch on the bumper jack; per Stone’s training and experience,
       suspects commonly alter the appearance of stolen trailers with such techniques;
     • Stone said he questioned Verde, who admitted that “he owned the trailer for the past three 3 [sic] years and
       bought it from another Hispanic male, who he could not identify. Verde admitted that he has not registered it
       since he bought it”;
     • Stone’s training and experience were that suspects commonly hold stolen property for several years to cool off
       or purge title questions and then present a trailer for registration, and “Verde did not give a plausible
       explanation as to why he waited [three years to register the trailer]”;
     • Verde acknowledged to Stone he bought another trailer from the same person as the stolen trailer, this second
       trailer was at Verde’s home;
     • Stone obtained a report from Irving Police showing a trailer and other equipment had been stolen - one trailer
       and other equipment having been stolen were “indicative of a larger theft and high likelihood that several
       people could be involved in organized crime”;
     • Stone drove by Verde’s residence and saw another trailer, and he believed it “could be stolen as well”;
     • “Also a two car garage (common workshop) is observed near the scene and your Affiant believes that this could
       be the location where the stolen trailer was painted, the Mylar and Decals where [sic] removed and necessary
       tools to alter the appearance of the trailer. [sic] This location could hold valuable evidence need[ed] to support
       the State’s Prosecution efforts”;
     • Stone “talked to Fannin County Sheriff’s investigators who had several documented cases involving Jorge
       Louis Verde within the last two years and documents show Verde is currently on Felony Probation for Cocaine
       Possession. [Stone] knows from past experience and training that drug dealers commonly buy, sale [sic] and
       trade in stolen property and for other illegal contraband.”
                                                             3
        The events leading to this appeal began June 7, 2012. Verde had a trailer he planned to

sell and needed to register it. He contacted Stone of the Paris Police Department; Stone was also

part of a regional automobile task force that covered several counties. 6 Verde met Stone and his

partner, Detective David Rowton, in the parking lot of the Walmart in Bonham. Inspections

were a routine part of Stone’s job. Stone testified that, when a person is arranging to have a

trailer inspected, the task force asks the person to produce documentation to support ownership.

Verde’s production of a bill of sale for his trailer was one of Verde’s chief lines of attack during

the suppression hearing. Stone’s affidavit for the search warrant made no mention of whether a

bill of sale was produced; but, at the hearing, Stone testified, “I don’t recall [what documentation

Verde brought to the inspection to prove ownership,] but it seemed like it was a bill of sale. I

don’t remember exactly, but it seems like he did have a bill of sale.” Stone could not account for

the whereabouts of the bill of sale. He could not recall if he had taken it from Verde and

returned it or if he had asked Verde to let him hold it. Stone remembered that Verde produced

some document to evidence ownership, and Stone “recall[ed] that [Verde] did have some type of

bill of sale. I don’t recall what it was.” Stone also stated that, when a party tenders stolen

property to the impound lot, the task force usually gives them a receipt; he could not remember if

he gave Verde a receipt in this case. Soto testified he sold two trailers—one of which was the

trailer at issue—to Verde and gave him a bill of sale. The trial court found that Verde presented

a bill of sale dated 2009.


6
 Verde lived in Leonard, Fannin County, Texas. All of the events concerning the affidavit and Stone’s meeting with
Verde occurred in Fannin County, although Stone and Rowton were law enforcement officers in nearby Paris,
Lamar County, Texas.
                                                        4
         Verde told Stone he had just painted the trailer and had added some floorboards,

intending to sell the trailer to his boss. Stone could not locate the trailer’s VIN in the spot where

it should have been, but he found it in a location generally only known to manufacturers and law

enforcement. Stone ran the VIN through a law enforcement data base and determined the Irving

Police Department had a report that the trailer had been stolen in 2001. 7

         Also in dispute was whether Verde tried to put the detectives in contact with the person

from whom he claimed to have purchased the trailer three years prior, Soto. According to

questions asked by Verde’s attorney at the suppression hearing, while meeting with Stone, Verde

telephoned Soto and offered to let Stone speak to him. Stone was equivocal at the hearing.

When asked if Verde had called a person he claimed was the seller and told Stone that man was

willing to speak with Stone, Stone could not recall this happening; he said it could have

happened but would not confirm that it did. He recalled Verde being on the telephone that day,

and “he could have handed me the phone and say [sic], I’m calling him, I don’t recall one way or

the other.” Stone acknowledged that Verde had at least given him the name of the seller. “He

gave me the name, but I don’t recall it.” Stone admitted, “[W]e probably should have talked to

Mr. -- I couldn’t recall the name after the next day. When we left the parking lot there -- we

probably should have [talked to the person Verde identified as the seller of the trailer].”

         When asked why his affidavit said Verde could not identify the Hispanic male from

whom he bought the trailer, Stone testified:

7
 Stone’s affidavit does not state the year the theft was reported, leaving the reader to believe the theft may have been
more recent. Based on the questions and answers at the hearing, it appears the theft was reported in 2001. There is
an inference in the statements at the hearing that Stone’s police report stated the theft was in 2001. Stone’s report
was discussed at various times in the hearing but was not admitted to the record into evidence.
                                                           5
        That is a mistake on my part. It should have said that I could not remember the
        name. Who I could not identify. . . . it’s just a typo, in my opinion. . . . I believe
        in my report I wrote that I could not remember who he said. It was a mistake and
        simply a mistake.

        Verde was not under arrest at this point and complied with Stone’s request to take the

trailer to an impound lot at the Fannin County Sheriff’s Office. After Verde left, Stone had a

conversation with a member of law enforcement at the Sheriff’s Office. This is another point

where the events are cloudy. At the suppression hearing, Stone said a lieutenant with Fannin

County, whose name he could not recall, recognized Verde. 8 That lieutenant “let us know that

he had previous run-ins with Mr. Verde.” When asked if Stone could elaborate on what run-ins

the lieutenant had had, Stone replied, “Well, I don’t know if he said ‘run-ins,’ but he’d said that

they’d had -- run a search warrant on Mr. Verde and, I believe, they -- some money was taken

from him.” 9      Although not admitted into evidence, Stone’s report was discussed during

questioning. Stone acknowledged that his report notes “chief deputy”; in the hearing, he testified

that he could not recall if he had asked the chief deputy or a lieutenant about Verde. Later

testimony established that, at the time of these events, there was only one lieutenant with the

Fannin County Sheriff’s Office, and that lieutenant did not discuss Verde with Stone.

        Stone did say, though, that he and Rowton met with Sergeant David Thompson of the

Fannin County Sheriff’s Office. Thompson confirmed that Stone and Rowton stopped by the

Fannin County Sheriff’s Office about once a week to check in or let local law enforcement know


8
 “He asked us if that was Verde. I was like, I wasn’t sure. I said it sounds right, I’d have to look at my -- we
normally enter into a database -- everybody that we look at trailers for.”
9
 Later, there was reference to $60,000.00 having been seized from Verde; there was a suggestion that about one-half
of this was eventually returned to Verde, but this matter was not discussed in detail.
                                                        6
the task force was operating in Fannin County. Rowton did not remember speaking to any

Fannin County law enforcement officers besides Thompson. Thompson did not know of anyone

with the sheriff’s office seeing Verde drop off the trailer and then asking Stone and Rowton if

that was Verde. It was “purely coincidence . . . that they stopped in [Thompson’s] office that day

because they routinely do it.” When Stone and Rowton mentioned Verde’s name, Thompson

claimed to know about him. Thompson said he discussed with Stone and Rowton the past

dealings Thompson had with Verde and apparently conveyed his opinion that Verde was a major

drug dealer. 10


10
                 [Defense Attorney]: Did you ever disclose to them that you felt as though Jorge Verde
        was a -- a known drug dealer?

                  [Witness]: Yes. He is.

                  [Defense Attorney]: That you think he is a high-volume drug dealer, a big-time drug
        dealer?

                  [Witness]: We believed him to be.

               [Defense Attorney]: Have you -- have you -- and did that -- was that information in any
        way conveyed to officers -- Detective Stone and Rowton?

                  [Witness]: We discussed his past. My past dealings with him, we discussed them.

                 [Defense Attorney]: Okay. And, in that regard, did that have anything to do with the
        thought of maybe going out to Mr. Verde’s house and getting a search warrant?

                [Witness]: I couldn’t testify to that. That was ultimately their independent investigation
        on what move they wanted to make next.

                 [Defense Attorney]: Okay. So, you did not in any way -- all you did was told them about
        your prior dealings.

                  [Witness]: My first-hand knowledge.

                  [Defense Attorney]: And it was just purely coincident that you -- did you see Verde that
        day?

                  [Witness]: Never did see him.
                                                        7
       In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility

of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–

25 (Tex. Crim. App. 2007). In reviewing a trial court’s decision on a motion to suppress, we do

not engage in our own factual review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.

App. 2007). We view the evidence in the light most favorable to the trial court’s ruling. State v.

Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). If the trial court’s decision is correct on

any theory of law applicable to the case, we must affirm that decision. State v. Ross, 32 S.W.3d

853, 855–56 (Tex. Crim. App. 2000).

       The suppression hearing held in this case is called a Franks hearing. See Franks, 438

U.S. 154.

       Under Franks, a defendant who makes a substantial preliminary showing that a
       false statement was made in a warrant affidavit knowingly and intentionally, or
       with reckless disregard for the truth, may be entitled by the Fourth Amendment to
       a hearing, on the defendant’s request. This hearing is required only where the
       false statement is essential to the probable cause finding. If at the hearing the
       defendant establishes the allegation of perjury or reckless disregard by a
       preponderance of the evidence, the affidavit’s false material is set aside. 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

Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007) (citing Franks, 438 U.S. at 155–56).

       We review a trial court’s decision on a Franks suppression issue under the same standard

that we review a probable-cause determination, a mixed standard of review: “We give almost

total deference 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 we review de novo

application-of-law-to-fact questions that do not turn on credibility and demeanor.” Johnson v.
                                                  8
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Davis v. State, 144 S.W.3d 192, 201

(Tex. App.—Fort Worth 2004, pet. ref’d). However, in a Franks hearing, the trial court may

consider not only the probable cause affidavit, but also the evidence offered by the party moving

to suppress because this attack on the sufficiency of the affidavit arises from claims that it

contains false statements. Franks, 438 U.S. at 155–56; Cates v. State, 120 S.W.3d 352, 355 n.3

(Tex. Crim. App. 2003); Davis, 144 S.W.3d at 201. At a Franks hearing, the trial court is owed

great deference as sole fact-finder and judge of the witnesses’ credibility. Janecka v. State, 937

S.W.2d 456, 462 (Tex. Crim. App. 1996).

(1)     The Trial Court Did Not Err in Granting Verde a Suppression Hearing

        The State argues the threshold issue that Verde never showed himself entitled to a

hearing on whether a Franks violation had occurred. To show himself entitled to a Franks

hearing, a defendant must:

        1.      Allege deliberate falsehood or reckless disregard for the truth by the
        affiant, specifically pointing out the portion of the affidavit claimed to be false.
        Allegations of negligence or innocent mistake are insufficient, and the allegations
        must be more than conclusory.

        2.      Accompany these allegations with an offer of proof stating the supporting
        reasons. Affidavits or otherwise reliable statements of witnesses should be
        furnished. If not, the absence of written support of the allegations must be
        satisfactorily explained. 11

        3.     Show that when the portion of the affidavit alleged to be false is excised
        from the affidavit, the remaining content is insufficient to support issuance of the
        warrant.



11
 “[N]othing in our law requires the defendant to include a sworn affidavit in making a preliminary showing under
Franks.” Cates, 120 S.W.3d at 356.
                                                       9
Harris, 227 S.W.3d at 85; see also Franks, 438 U.S. at 171; Ramsey v. State, 579 S.W.2d. 920,

922–23 (Tex. Crim. App. 1979). The State argues Verde never satisfied these steps and, thus,

the trial court erred in conducting a hearing.

       Verde filed a motion to suppress evidence and, later, a brief in support of that motion. He

points out that the affidavit omitted information such as Verde having contacted the person from

whom he bought the trailer and offering to let Stone speak to that person and that the trailer had

been reported stolen as much as a decade earlier. Although Verde’s brief does not use the words,

it is fairly understood to argue that the omissions amounted to reckless disregard for the truth by

affiant Stone. The brief claims the omissions were “material facts the magistrate should have

been told so they could be considered, facts that appear to have been omitted to prevent the

officer from hearing evidence that might undermine the course of action he wished to take.”

       While Verde’s arguments are broader than necessary, he raised several points contesting

the inadequacy of the affidavit to support the ensuing warrant and made sufficient arguments to

support the trial courts finding that a Franks hearing was warranted. Additionally, when the

State argued to the trial court that no Franks hearing should be held, the trial court stated, “If he

doesn’t call a witness, how is he going to make” a preliminary Franks showing. The court also

said, “I would think he could proffer the evidence through testimony.” See Cox v. State, 843

S.W.2d 750, 752 (Tex. App.—El Paso 1992, pet. ref’d) (decision on whether to conduct pretrial

hearing on motion to challenge admissibility of evidence rests in sound discretion of trial court).

       In Harris, the court found the first two prongs of the Franks preliminary showing were

not met, so the defendant did not show himself entitled to a hearing. Harris, 227 S.W.3d at 85.

                                                 10
The court nonetheless considered evidence from the hearing to find that a Franks violation was

not preserved for review. Similarly, in Dancy v. State, 728 S.W.2d 772, 781 (Tex. Crim. App.

1987), the court found the defendant failed to make his preliminary showing and was not entitled

to a hearing, but noted that there was a hearing on the motion to suppress and then considered

that evidence in finding Dancy failed to meet his Franks burden. We find no error in the trial

court’s conducting a hearing in this matter.

(2)    A Franks Violation Can Be Based on an Omission of Facts in a Warrant Affidavit

       The State also argues that the Texas Court of Criminal Appeals has never explicitly ruled

that omissions of facts or information can support a Franks claim. That argument overlooks the

fact that, of Verde’s two principal objections to Stone’s affidavit, one—the statement that Verde

could not identify his seller—is an affirmative misstatement and the other—failing to mention

when Verde purchased the trailer—is an omission. The State directs us to Brooks v. State, 642

S.W.2d 791 (Tex. Crim. App. 1982), for the proposition that the Texas Court of Criminal

Appeals “has refused to apply Franks when a defendant only complains of the omission[] of

facts from an affidavit.” The following is the context of the issue in Brooks:

       In grounds of error numbers ten, eleven and twelve appellant again attacks the
       affidavit supporting the search warrant for failure to disclose to the magistrate that
       the confidential informant relied on therein was paid by the police, had been
       convicted of criminal offenses, and had previously provided affiant with false
       information. The testimony of the affiant officer cited by appellant affirms his
       claim that the informant was paid but does not support the allegation that he had
       been convicted of criminal offenses and negates the claim that he had previously
       given affiant false information. Elsewhere in the record the officer affirmed that
       the informant had a criminal record. But it was not disclosed whether his record
       included convictions.


                                                11
       Appellant’s reliance on Franks, supra, in this ground of error is misplaced. That
       case relates not to omissions of facts about an informant but only to false
       statements by the affiant which are made knowingly and intentionally or made in
       reckless disregard of the truth. Absent such a showing as would warrant a Franks
       hearing, this Court will not look beyond the four corners of the affidavit. Ramsey
       v. State, supra. Appellant has not demonstrated that any statement or omission in
       the instant affidavit was made knowingly, intentionally or with reckless disregard
       for the truth. Compare Ellerbee v. State, 631 S.W.2d 480 (Tex. Crim. App.
       1982). Grounds of error numbers ten, eleven and twelve are overruled.

Id. at 796–97. This passage does not definitively state that omissions cannot support Franks

violations. In fact, the Texas Court of Criminal Appeals subsequently took note of the above

Brooks quotation:

       This Court has indicated that we might not recognize application of Franks to
       omissions of fact. In Brooks v. State, 642 S.W.2d 791 (Tex. Crim. App. 1982),
       the defendant attacked the probable cause affidavit for its failure to disclose “that
       the confidential informant relied on therein was paid by the police, had been
       convicted of criminal offenses, and had previously provided affiant with false
       information.” We did not extend a Franks analysis to appellant’s claims . . . .

Massey v. State, 933 S.W.2d 141, 146 n.3 (Tex. Crim. App. 1996). The court went on to point

out that the Fifth Circuit had recognized a Franks analysis applies to omissions:

       While this Court has not recognized that a Franks analysis pertains to omissions
       as well as false statements, some federal courts have so held. See United States v.
       Martin, 615 F.2d 318, 328 (5th Cir. 1980) (recognizing that allegations of
       material omissions to be treated essentially like claims of material misstatements).
       We need not decide today whether we will also recognize application of a Franks-
       like analysis to intentional and material omissions of fact in the warrant affidavit
       because appellant has failed to establish that the omissions were made
       intentionally or with a reckless disregard for the accuracy of the affidavit.

Id. (footnote omitted). Massey had claimed the questioned affidavit omitted the facts that two

informants cited had criminal histories and were suspects in the instant murder and that the

affiant detective had been unable to corroborate one of the informant’s incriminating assertions

                                                12
about Massey. Id. at 145. The Court of Criminal Appeals reviewed the record and found that it

did not support the appellant’s claim that the omissions were made intentionally or in reckless

disregard for the truth. Several courts have extended the Franks analysis to omissions. 12

         Finally, we take note of language in an unpublished Court of Criminal Appeals opinion:

         Franks requires that the defendant be granted a hearing to present evidence on the
         issue of whether a misrepresentation was knowingly and falsely made in a
         probable cause affidavit and whether it was material to the establishment of
         probable cause, such that any evidence derived from that search warrant should be
         suppressed. [United States v. Martin, 615 F.2d 318, 328 (Fifth Cir., 1980)]
         purports to extend that same analysis to the omission of material facts. 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.
         Here, even if the omission of material facts from an affidavit were sufficient to
         vitiate probable cause, the appellant has not met his burden of showing by a
         preponderance of the evidence that the omitted facts in this case were material in
         nature.




12
  See United States v. Martin, 615 F.2d 318 (5th Cir. 1980); Emack v. State, 354 S.W.3d 828, 839 (Tex. App.—
Austin 2011, no pet.); Wise v. State, 223 S.W.3d 548, 557 (Tex. App.—Amarillo 2007, pet. ref’d); Darby v. State,
145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d); Blake v. State, 125 S.W.3d 717, 724 (Tex. App.—
Houston [1st Dist.] 2003, no pet.); Bosquez v. State, 792 S.W.2d 550, 551 (Tex. App.—El Paso 1990, pet. ref’d);
Heitman v. State, 789 S.W.2d 607, 610–11 (Tex. App.—Dallas 1990, pet. ref’d); Melton v. State, 750 S.W.2d 281,
284 (Tex. App.—Houston [14th Dist.] 1988, no pet.); Lamarre v. State, No. 04-11-00618-CR, 2013 Tex. App.
LEXIS 2036 (Tex. App.—San Antonio Mar. 1, 2013, pet. ref’d) (mem. op., not designated for publication); Lehi
Barlow Jeffs v. State, No. 03-10-00272-CR, 2012 Tex. App. LEXIS 1487, at **26–27 (Tex. App.—Austin Feb. 24,
2012, pet. ref’d) (mem. op., not designated for publication); Martin v. State, No. 2-08-128-CR, 2009 Tex. App.
LEXIS 6141 (Tex. App.—Fort Worth Aug. 6, 2009, no pet.) (mem. op., not designated for publication); Volk v.
State, Nos. 01-07-00265-CR, 01-07-00266-CR, 01-07-00326-CR, 2008 Tex. App. LEXIS 5574 (Tex. App.—
Houston [1st Dist.] July 24, 2008, pet. ref’d) (mem. op., not designated for publication); Sandefer v. State, Nos. 12-
04-00013-CR, 12-04-00014-CR, 12-04-00015-CR, 12-04-00016-CR, 2005 Tex. App. LEXIS 6301 (Tex. App.—
Tyler Aug. 10, 2005, no pet.) (mem. op., not designated for publication). One sister court has declined to extend
Franks to omissions. See Davis v. State, Nos. 10-10-00405-CR, 10-10-00406-CR, 10-10-00407-CR, 10-10-00408-
CR, 10-10-00409-CR, 2012 Tex. App. LEXIS 1649, at *2 (Tex. App.—Waco Feb. 29, 2012, pet. ref’d) (mem. op.,
not designated for publication). Unpublished cases are not cited for any precedential authority, but only as
consideration in our analysis.

                                                         13
Ward v. State, No. AP-74,695, 2007 Tex. Crim. App. LEXIS 1835, at **10–11 (Tex. Crim. App.

May 23, 2007) (mem. op., not designated for publication) (footnotes omitted). 13

            Based on the foregoing authority and the circumstances of this case, we find that Stone’s

omission of the date of Verde’s purchase of the trailer could qualify as a Franks violation. 14

(3)         The Trial Court Did Not Err in Suppressing the Evidence

            We now arrive at the trial court’s ruling on the suppression issue. 15 Immediately after

hearing testimony and argument at the suppression hearing, the trial court said:


13
  Our citation to Ward is of course not to suggest reliance on that case as authority, but only to illuminate the instant
discussion. Unpublished opinions of the Court of Criminal Appeals have no precedential value. TEX. R. APP. P.
77.3.
14
  When Iago failed to tell Othello it was in fact Iago who arranged for Cassio to be in possession of Desdemona’s
handkerchief, this omission had the same effect as an intentional falsehood. See WILLIAM SHAKESPEARE, OTHELLO
act 3, sc. 3. We are of course not equating the instant affiant’s conduct with the infamous Shakespeare villain, but
simply point out that omissions of relevant facts can have serious effects on the ultimate statement.
15
     The court’s findings of fact and conclusions of law included these elements:
     • The trailer had been reported stolen in 2001;
     • Verde presented a valid bill of sale dated 2009;
     • Verde presented a telephone to Stone giving him the opportunity to speak to Soto, the seller;
     • Stone omitted from the warrant the date the trailer was stolen;
     • Stone “intentionally misstated that the Defendant could not identify who he bought the trailer from on the sworn
       affidavit used to secure the warrant”;
     • Stone “intentionally mislead [sic] the Court through his intentional omissions and incorrect statements”;
     • The trial court would not have issued a warrant if the officer’s affidavit had contained the information presented
       in the hearing and had not contained the officer’s false statement;
     • Stone intentionally misled Judge Blake when he stated in the affidavit, “Your affiant interviewed Verde and
       questioned him about the stolen Trailer. Verde admitted that he has owned the trailer for the past 3 years and
       bought it from another Hispanic male, who he could not identify.” Stone testified that “he” really meant “I” and
       that the statement was a typographical error; “The Court does not find this testimony to be credible especially
       given the fact that the Investigator is solely identified as ‘Your Affiant’ and the word ‘I’ does not appear in the
       affidavit. We find this is a deliberate or recklessly false statement and must be excluded from the affidavit”;
     • Although Stone said in the affidavit that the trailer was reported stolen from Irving, he failed to state in the
       affidavit that it was stolen eleven years prior. This was a “glaring omission” which was “deliberate and
       reckless”;
     • If the trial court had been apprised of these two facts, which appear to be Verde offering to put Stone in contact
       with the seller and the fact the trailer had been stolen eleven years earlier, the trial court would not have signed
       the warrant. The warrant was invalid, the search was illegal, and all evidence procured shall not be used against
       Verde.
                                                             14
         The affidavit as presented to Judge Blake, I can understand why she signed it, but
         the affidavit as presented to Judge Blake does not truly reflect the situation as it
         existed at the time. Reading this affidavit, you would think the defendant showed
         up with a stolen trailer, and he said he’d bought it from somebody and -- and
         didn’t know who it was and it had been repainted, so the antennas went up.

         What actually happened by virtue of the testimony we’ve heard is, he showed up
         to register the trailer. He had a bill of sale from the gentleman that spoke here
         today, even called him on the phone. He admitted -- he told the officer he had
         painted the trailer. It doesn’t say in the affidavit that the trailer was stolen in
         2001. This is -- he bought it in 2009, and is appearing in 2012, which is -- what? -
         - ten years or so. Then in the affidavit it says he couldn’t identify who he bought
         it from. Well, that’s not true. It’s not a typo. It’s an -- it’s an incorrect statement.
         He knew who he bought it from because he brought a bill of sale.

         If you look at the affidavit that reflects the facts, I wouldn’t have signed a search
         warrant and I don’t think Judge Blake would, either, if she had all of the facts. I
         think it’s misleading by omission, in addition to the statements that are not
         correct. Certainly not correct.

         Where a Franks violation occurs by omission of information, the reviewing court

determines if the affidavit still establishes probable cause when the omitted information is

included. Heitman v. State, 789 S.W.2d 607, 610–11 (Tex. App.—Dallas 1990, pet. ref’d)

(citing Martin, 615 F.2d at 328; Martin v. State, 750 S.W.2d 281, 284 (Tex. App.—Houston

[14th Dist.] 1988, no pet.).

         Two essential changes would be made if the omitted information had been included.

First, in addition to saying Stone discovered the trailer had been reported stolen, the affidavit

should have said it had been reported stolen in 2001. Second, instead of saying Verde could not

identify the Hispanic male from whom Verde bought the trailer, the affidavit should have said




          Deferring to the trial court’s determination of the credibility and demeanor of the testifying witnesses, we
find that its findings of fact and conclusions of law are supported by the record.
                                                         15
Verde offered to let Stone speak to the Hispanic male from whom Verde bought the trailer.

Thus, the reconstituted affidavit would have said that

   •   Verde contacted Stone to register a trailer; the trailer’s publicly visible VIN had been

       removed, but Stone was able to ascertain the trailer had been stolen in 2001, eleven years

       before his application for a search warrant;

   •   Verde admitted having repainted the trailer;

   •   Stone’s experience and training informed Stone that thieves commonly tried to disguise

       the appearance of stolen trailers by painting them;

   •   Verde told Stone he had owned the trailer for three years, and had bought it from a

       Hispanic male;

   •   Verde made telephone contact with this man and offered to let Stone speak to him;

   •   Verde did not explain why he had not registered the trailer in the three years he had

       owned it;

   •   based on his training and experience, Stone knew thieves commonly held stolen property

       for several years to purge or “cool off” title questions;

   •   Verde had purchased another trailer at the same time (three years prior) from the same

       person;

   •   it is possible that this second trailer was also stolen;




                                                  16
     •   the Irving police report listing the trailer as stolen also listed a vehicle and other items,16

         leading one to think the Irving crime was a large crime and further indicating a “high

         likelihood that several people could be involved in organized crime”;

     •   Verde’s residence had, by the driveway, another trailer, which could be stolen;

     •   the residence also had a two-car garage, where the first trailer could have been painted,

         the VIN decals could have been removed;

     •   Stone had learned from Fannin County law enforcement that Verde was on community

         supervision for a felony cocaine possession charge; and

     •   Stone knew from past experience that “drug dealers commonly buy, sale [sic] and trade

         in stolen property and for [sic] other illegal contraband.”

         We do not find that the adjusted affidavit established probable cause. Stone presented the

reviewing magistrate—here, the trial court—with information that Stone had discovered a stolen

trailer in Verde’s possession and that Verde was on community supervision for possession of

cocaine. There was evidence that Verde had painted the trailer, but also information Verde had

owned the trailer for only three years of the trailer’s reportedly eleven year history as a stolen

trailer. Most troubling, Stone had the opportunity to investigate the past theft when Verde

offered to let Stone speak to Soto, the seller. While we understand Stone’s skepticism of any

anonymous person Verde could have put on the telephone, that does not explain why the

detective would not have at least taken note of Soto’s contact information and investigated

16
  The Irving police report, like Stone’s report, is not in the record before us. Stone’s affidavit stated that the Irving
police report “indicated one vehicle, trailer and several other pieces of equipment which were indicative of a larger
theft . . . .” Thus, there was nothing to suggest the second trailer, seen on Verde’s property, was among the property
reported stolen by Irving police.
                                                          17
further. This affidavit, with the information Stone should have included, merely establishes that

Verde was in possession of a trailer which had been reported stolen many years before Verde

claimed to have purchased it.        The only other parts of the affidavit undermining Verde’s

credibility were, perhaps, Verde’s silence on why he had never registered the trailer and his

felony community supervision. But Stone’s description of his job on the task force suggested it

was not unusual for persons to have unregistered trailers. Even with Stone’s knowledge of

Verde’s criminal (albeit probationary) history and of the propensity for criminal types to traffic

in stolen property, the affidavit does not begin to tie Verde to the theft of the trailer.

        We find that the trial court’s ruling is supported by the record. We further find that the

affidavit, adjusted for its errors, does not establish probable cause to issue a search warrant for

Verde’s residence. We affirm the trial court’s ruling.



                                                Josh R. Morriss, III
                                                Chief Justice

Date Submitted:         March 5, 2014
Date Decided:           April 23, 2014

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