

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                          Order
 
State
of Texas
Appellant
Vs.                   No.
11-03-00179-CR  --  Appeal from Taylor County
Debra
Juarez Gonzales
Appellee
 
Our former opinion and judgment dated July 8, 2004, are
withdrawn, and our opinion and judgment dated September 30, 2004, are
substituted therefor.
 
TERRY McCALL
JUSTICE
 
September
30, 2004
Do not
publish this page only.  See
TEX.R.APP.P. 47.2(b).
Panel consists of:  Arnot, C.J., and
Wright, J., and McCall,
J.
 
                                    




                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
                                                                              
State
of Texas
Appellant
Vs.                   No. 11-03-00179-CR -- Appeal from Taylor County
Debra
Juarez Gonzales
Appellee
 
This is an appeal by the State from the trial
court=s
granting of Debra Juarez Gonzales=s
motion to suppress after a Franks hearing.[1]  We affirm. 
A postal inspector delivered a package -- known by
officers to contain marihuana[2]
-- to appellee=s
home.  The Acontrolled
delivery@ was made
to appellee=s
12-year-old daughter who told the inspector that the addressee on the package, Beto Pena, did not live there.  Appellee and the
child=s
stepfather were at work when the Adelivery@ was made; only the 12-year-old and her
7-year-old brother were at home.  The
inspector left the package with the child, and local law enforcement officers
immediately obtained a search warrant to search the home based solely on the Adelivery@
of the marihuana to ASuspected
Parties@ at the
home.  Appellee
arrived home within minutes after the Adelivery.@




Shortly after appellee
arrived home, the officers executed the warrant.  Appellee had
neither opened the package nor exercised any control over it.  Police Officer D. D. Gray testified that,
when he was explaining why he was there and that he had a search warrant, appellee Aimmediately
pointed to a box underneath the table in the living room@
and said that she did not know anything about the box.  Officer Gray testified that they found a bag
of marihuana under couch cushions in the living room.  When asked why the officers continued their
search after seeing that the box of marihuana had not been opened, Officer Gray
said that he believed that they were authorized to do so by the search warrant.  The officers found traces of cocaine on a mirror
in the bedroom of appellee and her husband; however,
Officer Gray said that he could not recall if the Awhite
powder@ was in
plain view or not but admitted that it was less than one gram.[3]  He further testified that he never said that appellee accepted the package, only that she was the adult
present when they executed the warrant.[4]  Appellee was
indicted for possession of less than one gram of cocaine.
At the end of the hearing, the trial court
observed that the warrant was for the box of marihuana, that the officers had
no knowledge of any drugs in the house except for the box of marihuana, and
that the officers could only search for and seize the box.  The trial court granted appellee=s motion to suppress.
In reviewing a trial court=s
ruling on a motion to suppress, an appellate court must uphold the trial court=s ruling if it is reasonably supported
by the record and is correct under any theory of law applicable to the
case.  State v. Steelman,
93 S.W.3d 102, 107 (Tex.Cr.App.2002); Romero v. State, 800 S.W.2d 539,
543-44 (Tex.Cr.App.1990).  We recognize
that reviewing courts should grant great deference to the magistrate=s finding of probable cause in a search
warrant affidavit.  Swearingen v.
State, No. 110-03, 2004 WL 1393813 (Tex.Cr.App.
June 23, 2004).
If the search warrant was an evidentiary warrant,
the trial court was correct that the officers should have terminated their
search when Officer Gray saw the unopened box. 
Under evidentiary warrants issued pursuant to TEX. CODE CRIM. PRO. ANN.
art. 18.02(10) (Vernon Supp. 2004 - 2005), only the specifically described
property or items set forth in the search warrant can be seized.  TEX. CODE CRIM. PRO. ANN. art. 18.01(d)
(Vernon Supp. 2004 - 2005).




We need not decide whether the warrant was an
evidentiary warrant or a non-evidentiary warrant under the other provisions of
TEX. CODE CRIM. PRO. ANN. art. 18.02 (Vernon 1977 & Supp. 2004 -
2005).  The Fourth Amendment to the
United States Constitution requires an adequate showing of probable cause for
all warrants.  U.S. CONST. amend.
IV.  This mandate is found in TEX. CODE
CRIM. PRO. ANN. art. 18.01(b) (Vernon Supp. 2004 - 2005).  We find that there was not an adequate
showing of probable cause for the warrant in this case.  The postal inspector simply left the box with
the 12-year-old child.  That was not a
sufficient delivery to suspected parties at 5114 Encino Road to establish
probable cause.
At the Franks hearing, appellee
contended that the magistrate was misled by information in the affidavit that
the affiant officer knew was false or should have known was false except for
his reckless disregard for the truth. 
The asserted false statement was that there had been a Adelivery@
of the package containing marihuana to Beto Pena or
suspected persons at the home.  Appellee attached the affidavit of her daughter to show
that the Adelivery@ of the 12 pounds of marihuana by the
government had been made to a 12-year-old child when no adult was present. Appellee=s
witnesses at the hearing were her daughter, an investigator for the district
attorney, a police officer, the magistrate who signed the warrant, and a postal
inspector.  After putting on her
evidence, appellee argued that, because there was no
delivery to appellee or another adult at the home,
there was no probable cause for the magistrate to issue the search warrant.
In Franks, the Supreme Court addressed the
issue of using false information in an affidavit that supports a warrant.  The Court held that, when an allegation of
perjury or reckless disregard is established by the defendant at a suppression
hearing by a preponderance of the evidence, the false information must be
disregarded.  If the affidavit=s remaining content is insufficient to
establish probable cause, the search warrant must be voided and the fruits of
the search excluded.  Franks v.
Delaware, supra at 156; Cates v. State, 120 S.W.3d 352, 358-59
(Tex.Cr.App.2003); Hinojosa v. State, 4 S.W.3d 240, 246-47
(Tex.Cr.App.1999).  At a Franks hearing,
the trial court is the sole fact finder and judge of the witnesses= credibility and of the weight of the
evidence.  As such, the trial court is
owed great deference, and its ruling will not be disturbed unless it is outside
the bounds of reasonable disagreement.  Hinojosa
v. State, supra; Janecka v. State,
937 S.W.2d 456, 462 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 825 (1997).
 
 




The search warrant in this case repeated the
following language from the officer=s
affidavit:
[T]hat
on or about the 1st day of August 2002...one Beto
Pena and person or persons unknown by name or description who received the
controlled delivery (hereinafter referred to as ASuspected
Parties@ for
purposes of this search warrant) did then and there unlawfully possess and does
at this time unlawfully possess a controlled substance, to-wit: Marihuana.
 
The officer=s
affidavit further stated that the package was delivered to 5114 Encino Road,
Abilene, by the postal inspector.
The child testified that she told the postal
inspector that Beto Pena did not live at 5114 Encino
Road, that she did not indicate to the inspector that she would accept the box,
and that the inspector simply placed the package in her hands with letters
addressed to her parents.  After telling
the inspector that Beto Pena did not live or stay
there, the child did finally state to him that a Beto
Pena may have lived there before her family moved into the house.  The postal inspector admitted that he
delivered the box to a young female. 
There is nothing in the record to show that appellee
or any other adult took possession or control of the package or Areceived@
the package addressed to Beto Pena.
There was no delivery to suspected parties at 5114
Encino Road as stated in the officer=s
affidavit.  There was no basis for the
officer=s
statement that the suspected parties possessed the box of marihuana.  The delivery to the child was no different
than law enforcement officers simply leaving a package containing controlled
substances at the door of the home and then claiming that Adelivery@
as a basis for a warrant to search the home. 
When we delete the officer=s
misrepresentation about the delivery to suspected parties at the home and that
the suspected parties possessed the box of marihuana, the affidavit=s remaining content is insufficient to
establish probable cause for a warrant to search the home.  Without facts detailing an actual delivery to
a suspected party at 5114 Encino Road -- where that party accepted and took
control of the package -- there is nothing in the affidavit to support a
finding of probable cause for the warrant. 
For an evidentiary warrant, the affidavit in
support of the warrant must set forth facts sufficient to establish probable
cause that (1) a specific offense has been committed, (2) specifically
described property or items to be searched for and seized constitute evidence
of the offense, and (3) the property or items constituting such evidence are
located at the particular place to be searched. 
TEX. CODE CRIM. PRO. ANN. art. 18.01(c) (Vernon Supp. 2004 - 2005).  Under the facts of this case, there was no
showing of probable cause that a specific offense had been committed.




An argument that there was probable cause for a
non-evidentiary warrant issued pursuant to Article 18.02(7) also fails.  Article 18.02(7) provided that a warrant
could be issued for Adrugs
kept, prepared, or manufactured in violation of the laws of this state.@[5]  Without a showing that Beto
Pena or the suspected parties received and took possession of the box of
marihuana, there was no probable cause showing that drugs were kept at 5114
Encino Road.
Controlled deliveries are used by officers to
identify and prosecute people who deal in drugs.  The Supreme Court pointed out in Illinois
v. Andreas, 463 U.S. 765, 769 (1983), that the lawful discovery by common
carriers of contraband in transit presents law enforcement authorities with an
opportunity to identify and prosecute the person or persons responsible for the
shipment of the contraband.  After the
discovery, the police may make a so-called controlled delivery of the package
to a party at the destination.  AThe person dealing in the contraband
can then be identified upon taking possession of and asserting dominion over
the container.@ Id. at
769.  The Court further noted that the
mere fact that a party takes possession of the package would not alone
establish guilt of illegal possession of the contraband.  At trial, the party could offer evidence that
the nature of the contents were unknown to the party; the party=s awareness of the contents of the
package would be an issue for the fact finder. 
Id. at 769 n.3.
The postal inspector testified that, if the person
at the address refuses to take a package when a controlled delivery is made, he
keeps the package and takes it back to his office.  Appellee was not
given an opportunity to refuse the package in this case.  She did tell Officer Gray when he explained
about the search warrant that she knew nothing about the unopened box.  It would have been a simple matter for the
postal inspector to wait until appellee was home
before trying to deliver the package of marihuana.  The State=s
issue is overruled.
                                                                This
Court=s Ruling
The judgment of the trial court is affirmed.
 
TERRY McCALL
JUSTICE
September 30, 2004
Publish.  See
TEX.R.APP.P. 47.2(b).
Panel
consists of:  Arnot,
C.J., and 
Wright,
J., and McCall, J.




[1]Franks v. Delaware, 438 U.S. 154 (1978).


[2]Earlier, postal inspectors had obtained a search
warrant to inspect the contents of the package. 
After learning that the package contained approximately 12 pounds of
marihuana, they resealed the package. 
The return address on the package was a nonexistent address. 


[3]There is no evidence in the record that the cocaine
was in plain view.  For a discussion of
evidence in connection with the execution of search warrants, see State v.
Young, 8 S.W.3d 695, 699 (Tex.App. B Fort Worth 1999, no pet=n).


[4]A later affidavit by Deris
Hutcheson, an investigator for the district attorney, supporting the arrest
warrant stated that Officer Gray had reported that appellee
had accepted the package and was the only adult present while the officers
executed the search warrant.  After
Officer Gray denied making any statement concerning appellee=s acceptance of the package, there was nothing left in
the record to show that appellee had accepted the
package.


[5]Article 18.02(7) was amended effective September 1,
2003. 


