                                   NO. 12-09-00194-CR

                           IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS
ROBERT ALBERT MITCHELL,
APPELLANT                                                '    APPEAL FROM THE 7TH

V.                                                       '    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                                      '    SMITH COUNTY, TEXAS
APPELLEE
                                   MEMORANDUM OPINION

        Robert Albert Mitchell appeals his conviction for aggravated assault. In one
issue, Appellant argues that the trial court erred by overruling his request for a pretrial
evidentiary hearing on the admission of evidence. We affirm.

                                            BACKGROUND
        Appellant was indicted for the offense of aggravated assault after he shot another
individual who interrupted a drug transaction he was conducting.                            During the
investigation, a police officer presented two identical affidavits to a magistrate seeking an
arrest warrant for Appellant and a search warrant for the home where he lived. 1 In the
affidavit, the officer stated that the shooting victim identified Appellant as the shooter. A
judge authorized both a search warrant and an arrest warrant.                     After obtaining the
warrants, officers searched the home where Appellant was staying, recovering the rifle
used in the shooting and other evidence.
        In March 2009, Appellant filed a motion to suppress evidence. He filed an
amended motion on May 13, 2009, the day the trial on the merits was to begin. At a
hearing on his motion, Appellant argued that he was entitled to a more specialized

        1
            The affidavits for both warrants are the same. We will refer primarily to the search warrant
affidavit because it is the focus of Appellant‘s argument and because the resulting warrant is what allowed
the police to recover important physical evidence.
Franks2 hearing to challenge the truthfulness or accuracy of the affidavit used to obtain
the search warrant. Specifically, he argues that the statement in the affidavit that the
victim identified Appellant as the shooter was not an accurate reflection of what the
victim had said. The trial court held that the motion was not timely filed, that the motion
was prima facie inadequate to require a Franks hearing, and that Appellant was not
entitled to relief even if the procedural inadequacies of his request were overlooked. The
trial court overruled the motion to suppress and proceeded with the trial.
       The jury found Appellant guilty as charged. Appellant elected to have the trial
court assess punishment. He pleaded true to an enhancement paragraph in the indictment
in which the State alleged that he had a prior felony conviction. The trial court assessed
punishment at imprisonment for fifty years and a fine of $10,000. This appeal followed.

                                            MOTION TO SUPPRESS
       In one issue, Appellant argues that the trial court abused its discretion by not
holding a Franks hearing at his request.
Applicable Law and Standard of Review
       No search warrant may issue unless supported by an affidavit setting forth
substantial facts establishing probable cause for its issuance. TEX. CODE CRIM. PROC.
ANN. arts. 1.06, 18.01(b) (Vernon 2005 & Supp. 2009). The issuance of a search warrant
for ―items‖ requires that the peace officer first present to a magistrate a sworn affidavit
setting forth sufficient facts to establish probable cause that (1) a specific offense has
been committed; (2) the specifically described property or items to be searched for or
seized constitute evidence of that offense or evidence that a particular person committed
that offense; and (3) the property or items constituting such evidence are located at or on
the particular person, place, or thing to be searched. TEX. CODE CRIM. PROC. ANN. arts.
18.01(c), 18.02(10) (Vernon 2005). Because the Fourth Amendment is an expression of
a strong preference for searches conducted pursuant to a warrant, an issuing magistrate‘s
probable cause determination will be upheld ―so long as the magistrate had a substantial
basis for concluding that a search would uncover evidence of wrongdoing . . . .‖
Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004) (citing Illinois v.
Gates, 462 U.S. 213, 234-37, 103 S. Ct. 2317, 2330-31, 76 L. Ed. 2d 527 (1983)).

       2
           Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).
                                                    2
       Probable cause to support the issuance of a search warrant exists where the facts
submitted to the magistrate are sufficient to justify a conclusion that the object of the
search is probably on the premises to be searched at the time the warrant is issued. See
Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); see also Rodriguez v.
State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (―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.‖).
       The sufficiency of a search warrant affidavit is evaluated by a ―totality of the
circumstances‖ analysis. See Gates, 462 U.S. at 234, 103 S. Ct. at 2330; Ramos v. State,
934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996). A reviewing court may consider only
the facts found within the four corners of the affidavit when evaluating a complaint that a
search warrant affidavit does not establish probable cause. See Smith v. State, 207
S.W.3d 787, 794 (Tex. Crim. App. 2006); Jones v. State, 833 S.W.2d 118, 123 (Tex.
Crim. App. 1992).
       There is an exception to the four corners rule when a defendant properly raises the
issue of whether the facts sworn to in the search warrant affidavit are true. The Supreme
Court held in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667
(1978), that the Fourth Amendment to the U.S. Constitution permits a defendant to
challenge not only the sufficiency of an affidavit used to support a search warrant but
also the veracity of the information contained therein. Franks, 438 U.S. at 171–72, 98 S.
Ct. at 2684–85. In order to require the trial court to hold a hearing on this issue, and to
preserve the issue for appellate review, 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,

       (2) accompany these allegations with an offer of proof stating the supporting reasons,
           and

       (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 the issuance of the
           warrant.

Id.; Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007); Ramsey v. State, 579
S.W.2d 920, 922–923 (Tex. Crim. App. 1979).
       The ―challenger‘s attack must be more than conclusory and must be supported by
more than a mere desire to cross-examine.‖ Franks, 438 U.S. at 171, 98 S. Ct. at 2684.
                                                  3
Analysis
       The trial court overruled Appellant‘s request for a hearing on two independent
grounds. First, the trial court ruled that Appellant‘s filing of the motion requesting a
Franks hearing on the day trial was to begin was untimely. Second, the trial court held
that the request was inadequate to require a hearing. Additionally, the trial court held that
even if Appellant had a right to a Franks hearing, he failed to establish that probable
cause to support the issuance of the warrant was lacking if the questioned portions of the
affidavit were not considered.
       Timeliness
       Appellant‘s original motion to suppress did not specifically allege a Franks
violation. Appellant did allege that the ―search warrant was illegally issued because the
issuing magistrate was misled by information in the affidavit that the affiant officer knew
was false or would have known was false except for his reckless disregard for the truth.‖
       This meets the first part of what a defendant must offer to be entitled to a Franks
hearing–an allegation that something in the affidavit is not true–but fails to show what in
the affidavit was false, fails to make an offer of proof, and fails to show that probable
cause does not exist without consideration of the untrue portion of the affidavit. See
Franks, 438 U.S. at 171–72, 98 S. Ct. at 2684–85. The court of criminal appeals has
held that an identical pleading was insufficient to put a trial court on notice that a Franks
hearing was requested. See Harris, 227 S.W.3d at 85.
       Appellant filed an amended motion the day of the pretrial hearing—it was also the
day of trial—that addressed the issue more fully. A motion to suppress must be filed
seven days prior to the pretrial hearing. See TEX. CODE CRIM. PROC. ANN. art. 28.01, § 2
(Vernon 2006). Because Appellant did not file the motion seven days prior to the
hearing, the trial court ruled that it was untimely filed and did not consider it. Article
28.01 allows for a late filing when good cause is shown. Id. Appellant does not argue
that the trial court erred by refusing to consider his amended motion or that good cause
existed for the consideration of the untimely motion. Because Appellant does not argue
that the trial court erred by not considering anything beyond his first motion, the trial




                                             4
court‘s ruling can be sustained on the ground that the first motion to suppress was
inadequate to require a hearing.3
         Probable Cause Despite Questioned Passages
         While he does not argue that the trial court erred by not considering his amended
motion to suppress, Appellant does argue that he was entitled to a Franks hearing after
the filing of the second motion and his offer of proof. In his amended motion and with
the evidence included in his offer of proof, Appellant alleged that there was a false
statement in the affidavit and made an offer of proof as to what was false. This satisfies
the first and second showings that a defendant must make. See Ramsey, 579 S.W.2d at
922–23.4
         But Appellant never established that the affidavit without the alleged false
statements failed to allege facts sufficient to allow a finding of probable cause. Appellant
identifies the following as being untrue: ―Ricky stated that an argument started and that
it got heated and the black male known as [Appellant] reached in the car and pulled out a
gun.‖ In the sentences that precede and follow that sentence, the officer quotes Ricky as
having made several other statements, including that Appellant had shot him. However,
this presentation of Ricky‘s statement to the police was contradicted by an audio
recording in which Ricky told the officer that he did not see a gun and did not see
anything. Appellant‘s amended motion alleges, in conclusory fashion, that there is not
probable cause if the offending sentence is removed. But his motion does not show how
this is so.




         3
            In Ramirez v. State, No. 03-07-00192-CR, 2009 Tex. App. LEXIS 8579, at *6–7 (Tex. App.–
Austin Nov. 5, 2009) (mem. op., not designated for publication), the court held that a Franks claim need
not be presented at a pretrial hearing. Our holding does not conflict with this. We merely rely upon
Appellant‘s failure to make an argument that the trial court erred in concluding that the amended motion to
suppress was untimely.
          4
            The State argues that Appellant did not demonstrate that the officer‘s statement in the affidavit
was intentionally false or made with reckless disregard of the truth. In the affidavit, the affiant officer
quotes another officer‘s interview with the shooting victim. However, it is not clear in the affidavit which
of the victim‘s statements were made to that officer and which were made to the affiant officer. At the
pretrial hearing, Appellant presented a sentence in the affidavit in which it appeared that the victim told the
affiant officer that he saw Appellant shoot him, along with a recording in which he told the affiant officer
that he did not see anything. The affiant officer did not explain the discrepancy at that time and so the trial
court was left with an apparent inaccurate statement in the affidavit. We assume for purposes of argument
that an assertion that the principal operative fact in an affidavit–in this case, a shooting victim‘s
identification of the shooter–is false is sufficient to at least raise an inference that the drafter of the affidavit
was reckless.
                                                         5
        In fact, the court concluded that the questioned sentence or series of sentences
was not the only basis for a probable cause determination. Within the same affidavit, the
officer recounts Ricky‘s making another identification of Appellant as the shooter.
Specifically, at what appears to be another interview, the officer presented Ricky with six
photographs, and Ricky picked out Appellant as the person who had shot him. By
reviewing the affidavit and considering the evidence adduced at the hearing, the trial
court could have reasonably concluded that the photo identification and the recorded
interview with Ricky took place at two different times. Accordingly, if the problematic
portions of the affidavit were excised, there was still an identification of Appellant as the
shooter.      In addition, the affidavit included an assessment of the physical evidence
observed by the officer–Ricky‘s gunshot wound and the shell casings–as well as other
witnesses who described events immediately before the shooting.5 Because Ricky‘s
subsequent identification and the additional observations and statements were sufficient
to show probable cause, the trial court reasonably concluded that Appellant had failed to
show that there was not probable cause without the allegedly false passages in the
affidavit.
        Merits
        Finally, the trial court revaluated its ruling following Appellant‘s offer of proof.
Appellant did not suggest, and does not suggest on appeal, that there was additional
information he wished to offer had the trial court granted a Franks hearing. Accordingly,
the trial court had the information it needed to make a ruling on Appellant‘s motion to
suppress. Following Appellant‘s offer of proof, the trial court stated that the evidence it
heard did not change its opinion of the facts. In essence this is a finding that Appellant
did not show that the affidavit, omitting the challenged parts, was insufficient to allege
probable cause. For the reasons we explained previously, this conclusion is supported by
the record.
        Conclusion
        After reviewing the evidence, we hold that the trial court did not err. Appellant‘s
first motion to suppress was inadequate to require a hearing because it contained no more
than a generalized statement regarding any inaccurate statements in the probable cause
affidavit. See Harris, 227 S.W.3d at 85. The second motion to suppress was inadequate

        5
            Ricky is the only witness mentioned in the affidavit who identifies Appellant as the shooter.
                                                       6
to require a hearing because Appellant did not show that the affidavit without the
questioned passages was insufficient for the issuing magistrate to conclude that probable
cause existed. Id. Finally, after consideration of Appellant‘s offer of proof, the trial
court‘s conclusion that probable cause existed without reliance on the questioned
passages in the search warrant affidavit is supported by the record. Accordingly, we
overrule Appellant‘s sole issue.

                                                    DISPOSITION
         Having overruled Appellant‘s sole issue, we affirm the judgment of the trial court



                                                                  JAMES T. WORTHEN
                                                                      Chief Justice



Opinion delivered May 12, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                          (DO NOT PUBLISH)




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