                            NUMBER 13-10-00118-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JOSE LUIS ORTIZ,                                                              Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 139th District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Benavides, and Vela
               Memorandum Opinion by Justice Rodriguez

      Appellant Jose Luis Ortiz challenges the trial court's denial of his motion to suppress

in this marihuana possession case. By one issue, Ortiz argues that the trial court erred in

denying his motion because the judicial search warrant that uncovered incriminating

evidence of his involvement in the crime was wrongfully obtained through

misrepresentation. We affirm.
                                           I. BACKGROUND 1

        Ortiz was indicted for possession of a usable amount of marihuana in an amount

greater than 50 but less than 2,000 pounds, a second-degree felony. See TEX . HEALTH &

SAFETY CODE ANN . § 481.121(a), (b)(5) (Vernon 2010). Ortiz filed a motion to suppress,

in which he alleged that the warrant obtained by police to search the home at which he was

arrested was "not based on real probable cause and/or untainted information." The trial

court held a hearing on Ortiz's motion. The officer whose affidavit was used to support the

warrant testified at the hearing. The trial court orally denied the motion at the conclusion

of the hearing.

        Ortiz then filed a motion for reconsideration of his motion to suppress. In this

motion, Ortiz alleged that the information in the warrant affidavit was "totally contrary to the

sworn testimony of the [officer]" at the motion to suppress hearing. Ortiz alleged that

although the affidavit stated that its information was obtained from a credible and reliable

confidential informant, the officer affiant testified at the hearing that the information came

from an anonymous tip. Ortiz alleged that the affidavit therefore "contained a false

statement that easily misled the judge in issuing the warrant" and, as a result, the search

warrant affidavit must be voided and any evidence obtained under that warrant must be

excluded. The trial court did not rule on Ortiz's motion for reconsideration, and no hearing

was held on that motion.

        Ortiz pleaded guilty to the charge in the indictment. The trial court sentenced him

to five years' incarceration in the Institutional Division of the Texas Department of Criminal



        1
         Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will only
discuss those facts necessary for the disposition of this appeal. See T EX . R. A PP . P. 47.1.

                                                    2
Justice and assessed a $2,500 fine; the sentence was suspended and Ortiz was placed

on community supervision for a term of five years. The trial court certified Ortiz's limited

right to appeal the denial of his motion to suppress.

                       II. STANDARD OF REVIEW AND APPLICABLE LAW

              The Fourth Amendment commands that no warrants . . . shall issue
       except upon probable cause, and it reflects our constitutional preference for
       the warrant process in which police officers present their facts to a neutral
       magistrate to decide if there is probable cause to issue that warrant. . . .
       Although 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. Thus, even in close cases we give
       great deference to a magistrate's determination of probable cause to
       encourage police officers to use the warrant process rather than making a
       warrantless search and later attempting to justify their actions by invoking
       some exception to the warrant requirement.

Rodriguez v. State, 232 S.W.3d 55, 59-60 (Tex. Crim. App. 2007) (citing Henry v. United

States, 361 U.S. 98, 200 (1959); United States v. Ventresca, 380 U.S. 102, 106 (1965))

(internal quotations omitted).

       However, so long as certain procedures outlined by the Supreme Court in Franks

v. Delaware are followed, a defendant may nonetheless attack the veracity of an officer's

affidavit in support of a search warrant. See 438 U.S. 154, 175-56 (1978); see also Athey

v. State, No. 13-06-00129-CR, 2007 WL 2389599, at *4 (Tex. App.–Corpus Christi Aug.

23, 2007, no pet.) (mem. op., not designated for publication). "[W]here the defendant

makes a substantial preliminary showing that a false statement knowingly and intentionally,

or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,"

he may be entitled to a hearing. Franks, 438 U.S. at 155-56; see Harris v. State, 227

S.W.3d 83, 85 (Tex. Crim. App. 2007). A hearing is required only where the false



                                               3
statement is essential to the finding of probable cause. Harris, 227 S.W.3d at 85. If, at the

hearing, the defendant establishes the allegation of perjury or reckless disregard by a

preponderance of the evidence, the false material in the affidavit is set aside. Franks, 438

U.S. at 156. If the remaining content of the affidavit does not establish probable cause,

the search warrant must be voided and the evidence obtained as a result of the warrant

excluded. Id.

       To make the "substantial preliminary showing" predicate to a Franks hearing, the

Texas Court of Criminal Appeals has made it clear that a defendant must: (1) allege

deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing

out the complained-of portion of the affidavit; (2) accompany the allegation with an offer

of proof stating the supporting reasons; and (3) show that when the alleged false portion

of the affidavit is excised, the remaining content is insufficient to support probable cause

and the issuance of the warrant. Harris, 227 S.W.3d at 85 (citing Cates v. State, 120

S.W.3d 352, 356 (Tex. Crim. App. 2003)). Specific allegations and evidence must be

apparent in the pleadings, and the defendant's attacks must be more than conclusory. Id.

If a defendant fails to make such a showing, he has not preserved a Franks issue for

review. See id. at 86; see also Athey, 2007 WL 2389599, at *7.

                                      III. DISCUSSION

       In his motion to suppress, Ortiz made no allegations of falsehood in the warrant

affidavit. We have also reviewed the record of the suppression hearing, and no such

allegations were made at the hearing. Rather, Ortiz first raised the truthfulness of the

affidavit in his motion for reconsideration. Our Franks analysis begins, then, with this later

motion.


                                              4
       Ortiz alleged in his motion for reconsideration that the warrant affidavit contained

a falsehood, because although the affidavit stated that its information was obtained from

a credible and reliable confidential informant, the officer affiant testified at the suppression

hearing that the information came from an anonymous tip. The relevant portions of the

search warrant read as follows:

       On January 19, 2009, [an officer] received information from a concerned
       citizen of drugs being unloaded at the suspected place. Investigators of the
       Hidalgo County Sheriff's Office Narcotics Unit have received information
       about the suspected place in the past and have conducted surveillance of
       the suspected location on numerous occasions. . . . [T]he grounds for
       issuance for this warrant are derived from physical evidence and/or
       information from a credible and reliable confidential informant.

Ortiz's challenge appears to be based on the following exchanges from the suppression

hearing:

       [Prosecutor]:         Now, do your recall on what date your sergeant
                             received this [] concerned citizen tip?

       [Officer affiant]:    That particular one was on January 19th–-

       ....

       [Prosecutor]:         And regarding that call, this was, I mean, is this just like
                             a tip, or is this like a confidential informant that the
                             Sheriff's Department uses?

       [Officer affiant]:    This is just a tip. What will happen is, a lot of times, we
                             have somebody that they don't want to sign up and they
                             don't want to be any kind of–-they don't want to get
                             paid, anything like that. They just call up, "Hey, look.
                             There's something going on here that might be
                             narcotics. You guys might want to check it out."

       ....

       [Defense counsel]: Now, would that information you sought [be] in the
                          search warrant from Judge Rodriguez?

       [Officer affiant]:    Yes, sir.

                                               5
        [Defense counsel]: And all of that was just an anonymous tip that you had
                           gotten as a Crime Stoppers tip probably?

        [Officer affiant]:       Yes, sir.

        Assuming without deciding that the complained-of discrepancy does rise to the level

of a falsehood,2 Ortiz failed to even allege that the discrepancy was knowing, intentional,

or reckless, much less make an offer of proof to that effect. See Harris, 227 S.W.3d at 85.

Absent that, we cannot conclude that Ortiz made the requisite "substantial preliminary

showing" that the complained-of portion of the officer's affidavit was a knowing and

intentional falsehood or made with a reckless disregard for the truth. See Franks, 438 U.S.

at 155-56. Ortiz has therefore failed to preserve a Franks challenge for our review, and we

defer to the trial court's determination that probable cause existed for the warrant. See

Rodriguez, 232 S.W.3d at 59-60; Harris, 227 S.W.3d at 86; see also Athey, 2007 WL

2389599, at *7. Ortiz's sole issue is overruled.

                                             IV. CONCLUSION

        We affirm the order of the trial court denying Ortiz's motion to suppress.



                                                                   NELDA V. RODRIGUEZ
                                                                   Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the
15th day of July, 2010.




        2
          W e note that, based on our review of the record, Ortiz's allegation is, arguably, m ore accurately
characterized as a slight discrepancy between the testim ony of the officer affiant at the suppression hearing
and the officer's statem ent in the affidavit.

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