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

        ______________________________

              No. 06-08-00133-CR
        ______________________________


    CHARLES ANISON ROGERS, JR., Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 8th Judicial District Court
              Franklin County, Texas
               Trial Court No. F7887




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                           OPINION

       Charles Anison Rogers, Jr., appeals his conviction by a jury for possession of a controlled

substance with intent to deliver, enhanced by a prior felony conviction. While investigating

narcotics trafficking in Franklin County, Texas, law enforcement officers placed Rogers' motel room

under surveillance. The officers observed a vehicle being operated by James Wayne Fountain

leaving Rogers' motel room. During a consent search of Fountain's vehicle, the officers discovered

crack cocaine. Fountain informed police officers he had purchased the cocaine from Rogers. Based

on this "confidential informant's" statement, the law enforcement officers obtained a search warrant

for Rogers' motel room. The officers executed the search warrant while Rogers and his girlfriend

were present in the motel room. Rogers had crack cocaine on his person, and his girlfriend was in

possession of powder cocaine and marihuana. A large sum of cash and a .380-caliber pistol were

found in the room. A jury found Rogers guilty of possession of a controlled substance with intent

to deliver, found Rogers exhibited a deadly weapon during the commission of the offense, found the

enhancement allegation to be true, and assessed punishment at sixty years' imprisonment. The Texas

Court of Criminal Appeals has authorized an out-of-time appeal. On appeal, Rogers argues: 1) the

"affidavit did not properly describe the person relaying the information;" 2) the trial court erred in

denying his motion to suppress because the search warrant failed to specifically describe the location

to be searched; and 3) "the search warrant in this case was not properly executed." We affirm the

judgment of the trial court.



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I.     Rogers' First and Third Points of Error Are Not Preserved

       In his first point of error, Rogers complains about the warrant characterizing Fountain as a

confidential informant. Rogers argues, in his third point of error, that the search warrant failed to

specifically identify Rogers' girlfriend and was, therefore, not properly executed. Rogers has failed

to direct this Court to where in the record these arguments were presented to the trial court. To

preserve error for appellate review: (1) the complaining party must make a timely objection

specifying the grounds for the objection, if the grounds are not apparent from the context; (2) the

objection must be made at the earliest possible opportunity; and (3) the complaining party must

obtain an adverse ruling from the trial court. See TEX . R. APP . P. 33.1(a)(1); Saldano v. State, 70

S.W.3d 873, 887 (Tex. Crim. App. 2002). Further, an objection based on one legal theory may not

be used to support a different legal theory on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002). Rogers' first and third points of error are not preserved for our review.

II.    The Trial Court Did Not Err in Permitting the Police Officer to Supplement the
       Description in the Warrant

       Rogers' remaining complaint—contained in his second point of error—is that the warrant

fails to adequately describe the specific motel room to be searched. The description of the location

of the motel has not been challenged on appeal. The issue in this case is whether the warrant

adequately described the particular motel room to be searched.




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        We review the trial court's decision on a motion to suppress evidence by applying a

bifurcated standard of review deferring to the trial court's determination of historical facts that

depend on credibility, but reviewing de novo the trial court's application of the law. Burke v. State,

27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet. ref'd). We afford almost total deference to a trial

court's determination of the historical facts supported by the record, especially when the trial court's

fact findings are based on an evaluation of credibility and demeanor. Carmouche v. State, 10 S.W.3d

323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We

are also to afford such deference to a trial court's ruling on "application of law to fact questions," also

known as "mixed questions of law and fact," if the resolution of those questions turns on an

evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo those

questions not turning on credibility and demeanor. Id.

        The issuing magistrate's decision to grant the search warrant should be reviewed with a

deferential standard of review. Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006); Swearingen

v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Great deference should be paid to a

magistrate's determination of probable cause, and warrants should not thereafter be invalidated

through "hypertechnical" interpretation of their supporting affidavits. Illinois v. Gates, 462 U.S. 213,

236 (1983). Granting great deference to the issuing magistrate's determination, we will sustain the

issuance of the warrant if the magistrate had a substantial basis for concluding that a search would

uncover evidence of wrongdoing. Id.; see Swearingen, 143 S.W.3d at 811.



                                                    4
       Subject to a few limited exceptions not present in this case, "a search warrant must specify

which unit of a multi-unit complex is subject to the search." Amir v. State, 45 S.W.3d 88, 95 (Tex.

Crim. App. 2001). "[W]here the warrant describes a multi-unit dwelling, the description must

contain sufficient guidance to apprise the officers of the particular unit to be searched." Tyra v.

State, 496 S.W.2d 75, 76 (Tex. Crim. App. 1973). The search warrant affidavit in this case

described the motel room as follows: "The room is on the bottom floor of the east side of the main

motel building. The room has a white door with blue trim. There are two windows on the left hand

side of the door. There is no visible number to the room." A description can be adequate without

a room number for the particular unit to be searched. See Williams v. State, 928 S.W.2d 752, 754

(Tex. App.—Houston [14th Dist.] 1996), aff'd, 965 S.W.2d 506 (Tex. Crim. App. 1998). The

warrant, though, must describe sufficient distinguishing characteristics to distinguish the particular

unit to be searched from the other units in the multi-unit dwelling. While the description contains

some details, the details described could apply to every room in the motel. The description does not

specify whether other rooms have a white door with blue trim, whether other rooms have two

windows on the left-hand side of the door, or whether other rooms have a visible number to the

room. The description in this case fails to specify where the room to be searched was located in

relation to the other motel rooms other than being on the east side of the motel building. Based on

the four corners of the search warrant affidavit alone, there is a substantial danger of

misidentification. Thus, the question which we must decide in this appeal is whether our review is



                                                  5
limited to the four corners of the affidavit or whether we can consider facts known to the police

officer not contained in the affidavit.

          When reviewing whether the issuing magistrate had a substantial basis for concluding that

probable cause existed, our determination of the sufficiency of an arrest or search warrant is limited

to the four corners of the affidavit. Gates, 462 U.S. at 238; Oubre v. State, 542 S.W.2d 875, 877

(Tex. Crim. App. 1976); see Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); Burke,

27 S.W.3d at 654. The probable cause affidavit cannot normally be supplemented with additional

information not contained in the affidavit.       Elardo v. State, 163 S.W.3d 760, 771 (Tex.

App.—Texarkana 2005, pet. ref'd); see Lowery v. State, 98 S.W.3d 398, 400 (Tex. App.—Amarillo

2003, no pet.); Flores v. State, 888 S.W.2d 193, 197 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref'd).

          Several Texas courts have limited their review of the location to be searched to the four

corners of the warrant or affidavit. These cases hold "[t]he warrant must be sufficient on its face to

enable any executing officer to locate and distinguish the property, avoiding a reasonable probability

of mistaken execution. The validity of the warrant cannot depend upon the individualized,

supplementary knowledge of one officer." Olivas v. State, 631 S.W.2d 553, 556 (Tex.

App.—El Paso 1982, no pet.); see Mason v. State, 838 S.W.2d 657, 660 (Tex. App.—Corpus Christi

1992, pet. ref'd); see also Miller v. State, 134 Tex. Crim. 118, 114 S.W.2d 244, 246 (1938);

Williams, 928 S.W.2d at 754.



                                                  6
       Several Texas courts of appeals, though, have held that a very limited exception does exist

for the description of the location to be searched. See Taylor v. State, 974 S.W.2d 851, 857 (Tex.

App.—Houston [14th Dist.] 1998, no pet.); Smith v. State, 962 S.W.2d 178, 182 (Tex.

App.—Houston [1st Dist.] 1998, pet. ref'd). These cases conclude that when the same police officer

conducts the investigation, swears to the affidavit for the warrant, and executes the search warrant,

that officer's knowledge of the exact premises may cure description deficiencies in the warrant or

affidavit. The First District reasoned as follows:

       Our law concerning search warrants has two goals: to ensure that there is adequate
       probable cause to search and to prevent the mistaken execution of the warrant against
       an innocent third party. This second goal is met when the warrant identifies the place
       to be searched sufficiently so that the officers who execute the warrant, acting as
       reasonable men, can locate that place and identify it from other places in the
       community. This goal is not furthered by rigid application of rules requiring a
       warrant to contain certain descriptive elements such as the name of the city.

Smith, 962 S.W.2d at 182. In essence, the First District concluded we should not ignore the reality

that a search is rarely conducted by an officer without some knowledge of the prior investigation and,

therefore, we should adopt a more pragmatic and common-sense approach permitting some

deficiencies to be cured by an officer's more extensive knowledge of the premises. Although we

emphasize that an officer's knowledge of the premises cannot be used to entirely replace the

description in the warrant and emphasize that the better practice is for the description in the warrant

and affidavit to be sufficiently descriptive, we adopt the reasoning of the First District and conclude




                                                  7
the executing officer's knowledge of the premises to be searched is relevant to the validity of the

search warrant.1

       Further, this Court has held that "the warrant must identify the place to be searched

sufficiently so that the officers who execute the warrant, acting as reasonable men, can locate that

place and identify it from other places in the community." Bass v. State, No. 06-01-00054-CR, 2002

Tex. App. LEXIS 7250, at *12 (Tex. App.—Texarkana Apr. 11, 2002, pet. ref'd) (mem. op., not

designated for publication) (citing Smith, 962 S.W.2d at 184). In Bass, the search was approved

based on an informant's description, but the street address was incorrect. We approved the

consideration of the executing officer's familiarity with the location of the house; the description of

the property was otherwise accurate.

       At trial, Sergeant Chris Miller, an investigator with the Franklin County Sheriff's Office,

testified concerning the description of the motel room. During the suppression hearing, Miller

testified he had been familiar with the motel for "[a]t least 14 to 16 years, on and off." Miller

admitted that there were "numerous rooms in the main building" and that he did not know whether

the other motel doors were white with blue trim or whether the other doors had two windows on the

left side of the door. At trial,2 Miller testified they had placed the room under surveillance before

       1
       We emphasize this knowledge is being considered only on the issue of the description of the
premises, not as to the probable cause to believe a crime had been committed.
       2
         The Texas Court of Criminal Appeals has held "[w]here the State raises the issue at trial
either without objection or with subsequent participation in the inquiry by the defense, the defendant
has made an election to re-open the evidence, and consideration of the relevant trial testimony is

                                                  8
the search and had seen Fountain enter the room under surveillance and later exit the room. Miller's

testimony at trial indicates he could identify the target location of the search.

       In Smith, the court emphasized the fact that the officer who had conducted the investigation

and signed the affidavit for this search warrant "had the house pointed out to him by a confidential

informant, and he watched the informant enter and leave that house. [The officer] was present to

execute the warrant and searched one house only, which was the house intended and targeted for the

search." 962 S.W.2d at 185. Similarly in this case, there is evidence that Miller had the room under

surveillance, had seen the confidential informant enter and leave that room, signed the affidavit in

support of the search warrant, and was present to execute the search. Based on the affidavit and the

evidence adduced, we conclude the description of the location to be searched was sufficient. The

trial court did not err in denying the motion to suppress.

       For the reasons stated, we affirm the judgment of the trial court.



                                                       Jack Carter
                                                       Justice

Date Submitted:        June 11, 2009
Date Decided:          June 26, 2009

Publish




appropriate in our review." Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (citing
Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984)).

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