Opinion issued April 14, 2020




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00607-CR
                           ———————————
              LATHARIAN DEVANTE MERRITT, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


              On Appeal from the Criminal District Court No. 2
                          Tarrant County, Texas1
                     Trial Court Case No. 1465902D




1
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred this appeal from the Court of Appeals for the Second District of Texas
     to this Court. See Misc. Docket No. 18-9083 (Tex. June 19, 2018); see also TEX.
     GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any
     conflict between the precedent of the Court of Appeals for the Second District and
     that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
                           MEMORANDUM OPINION

      A jury convicted appellant Latharian Devante Merritt of capital murder, and

the trial court sentenced him to life in prison without the possibility of parole. See

TEX. PENAL CODE § 19.03 (capital murder); id. § 12.31(a)(2) (mandating punishment

of imprisonment for life without parole when State does not seek death penalty and

offense committed when defendant was 18 years of age or older). He raises two

issues on appeal. First, he challenges the trial court’s denial of his motion to suppress

statements made after his arrest because he contends that his arrest warrant was not

supported by probable cause. Second, he contends that a statement in the jury charge

was an erroneous definition of reasonable doubt.

      We affirm.

                                     Background

      Zachary Beloate shared a house with Ethan Walker and another roommate.

Beloate was dating a teenage girl, M.S., who believed that Beloate and Walker had

been selling small amounts of drugs and marijuana. M.S. and several friends decided

to rob them. M.S. told one friend, Megan Holt, that a gun would be needed for the

robbery. Holt recruited T.M., a teenage boy, to commit the robbery, and he, in turn,

recruited three other young men: Merritt, Shawn Robinson, and J.B.

      On the night of the robbery, M.S., Holt, and Ariana Bharrat went to Beloate’s

house at 1500 Aspen Court under the pretense of spending time together. The women


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unlocked exterior doors, and the four men let themselves in. When one of the men

pointed a gun at Beloate, M.S., Holt, and the other young woman left the room

unimpeded. Shortly after, they heard gunshots and fled the house, leaving together

in a white vehicle. Beloate and Walker were both shot during the robbery, and

Walker later died from his injuries.

      The first call for emergency services was made at 10:42 p.m., and a witness

informed responding law enforcement officers that she saw three young women run

from 1500 Aspen Court and drive away in a white sports-utility vehicle.

      Detectives P. Knotts and S. Peacock investigated the homicide. Based on an

affidavit from Det. Knotts, a magistrate issued a warrant for Merritt’s arrest. The

affidavit stated facts learned during an initial investigation. While still in the

hospital, Beloate told Det. Peacock that M.S. had been at the house but left after the

shooting. Beloate gave Det. Peacock M.S.’s address.

      Detectives Knotts and Peacock went to M.S.’s house. While there, they spoke

to M.S.’s brother, V.S., who said that M.S. came home in a white vehicle between

11:00 and 11:30 p.m. V.S. informed them that M.S. had been with Holt and Bharrat,

and when she came home, she was nervous, and she told him that she had “hit a lick”

and it “went bad.” V.S. also said that M.S.’s friend had been shot.

      M.S.’s mother allowed her to be interviewed at police headquarters.

Detectives Knotts and Peacock drove M.S., and on the way, she directed them to


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1500 Aspen Court. At police headquarters, M.S. said that she, Holt, and Bharrat were

in Beloate’s room at 1500 Aspen Court just before the shooting. While there, M.S.

saw a text message on Bharrat’s phone that said “hit a lick” and “is it a go.” In the

affidavit, Knotts averred that “hit a lick” means to commit a crime such as theft,

burglary, or robbery. Although M.S. initially told the detectives that she left the

house during the robbery, went to a nearby fast-food restaurant, and used a rideshare

service to get home, she “later said she had lied about how she got home.” M.S. later

said that she went home with Holt and Bharrat.

       After Detective Knotts told M.S. that Walker had died, she agreed to help

identify the other suspects. M.S. sent several emails and photographs identifying

three of the four male suspects by their nicknames or street names. The following

day, M.S. was arrested for capital murder. Later, she gave another statement to

police, and she provided a physical description of Merritt, whom she knew as

“Larry.” Sgt. T. Hewitt interviewed Holt in connection with the murder. Holt knew

“Larry” socially, and she identified him as the man in the photograph provided by

M.S.

       Based on the affidavit, Tarrant County District Court Judge Gallagher signed

the warrant authorizing Merritt’s arrest. At that time, Merritt had been identified

only as “Larry” and by his photograph and physical description, both of which were

included in the arrest warrant.


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      Merritt was arrested on capital murder charges. He gave two statements to

police, admitting that he had shot Walker. Before trial, Merritt moved to suppress

statements he made after his arrest on the grounds that they were tainted by the

illegality of his arrest. In particular, he maintained that the affidavit in support of the

arrest warrant did not establish probable cause. The trial court held an evidentiary

hearing and denied the motion to suppress.

      The court’s charge to the jury included the following statement about the

State’s burden of proof: “It is not required that the Prosecution prove guilt beyond

all possible doubt; it is required that the Prosecution’s proof excludes all ‘reasonable

doubt’ concerning the Defendant’s guilt.” At the charge conference, Merritt asked

the court to remove that statement from the court’s charge, acknowledging, however,

that the Fort Worth Court of Appeals had previously ruled that the language was not

erroneous. The trial court denied the request to remove the language.

      The trial court found Merritt guilty of capital murder, and because the State

had not sought the death penalty, the trial court sentenced Merritt to life in prison

without the possibility of parole.

      Merritt appealed.




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                                       Analysis

      On appeal, Merritt challenges the trial court’s ruling on the motion to suppress

his statements due to an allegedly illegal arrest warrant and the trial court’s

instruction to the jury that reasonable doubt is not the same as all doubt.

I.    Motion to suppress defendant’s statements

      In the trial court, Merritt moved to suppress statements that he made after his

arrest on the grounds that the arrest was illegally “conducted pursuant to an arrest

warrant and supporting affidavit that did not state sufficient facts that established

probable cause for its issuance.” In the pretrial hearing on the motion to suppress,

Merritt argued that the “arrest warrant affidavit” “does not establish probable cause

for his arrest.” He argued that M.S. was the only source of information connecting

him to the crime, and because she had lied to the investigating officers, she was “not

a credible person.” The State argued that the four-corners rule2 required the court to

consider only information found within the four corners of the affidavit and urged

the court not to consider the pretrial testimony of Detective Knotts.

      On appeal, Merritt makes a different argument. Rather than arguing that the

facts recited in the affidavit were insufficient to establish probable cause, on appeal

Merritt relies on Franks v. Delaware, 438 U.S. 154 (1978), to argue that the


2
      See State v. Elrod, 538 S.W.3d 551, 556–57 (Tex. Crim. App. 2017) (“In
      determining whether a warrant sufficiently establishes probable cause, this Court is
      bound by the four corners of the affidavit.”).
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affidavit’s omission of information about M.S.’s having lied rendered the search

warrant invalid.

      “To preserve error for appellate review, the complaining party must make a

specific objection and obtain a ruling on the objection.” Wilson v. State, 71 S.W.3d

346, 349 (Tex. Crim. App. 2002) (on automatic appeal in capital murder case); see

TEX. R. APP. P. 33.1 (preservation of error). The objection must be timely, i.e., “made

at the earliest possible opportunity.” Wilson, 71 S.W.3d at 349. “Finally, the point

of error on appeal must comport with the objection made at trial.” Id.

      At the pretrial hearing, the State referred the trial court to two cases that

originated from Tarrant County and held that the reviewing court is limited to the

four corners of the affidavit to determine whether there was a substantial basis for

concluding that probable cause exists. Rodriguez v. State, 232 S.W.3d 55, 64 (Tex.

Crim. App. 2007) (“We must defer to the magistrate’s finding of probable cause if

the affidavit demonstrates a substantial basis for his conclusion.”); see Montgomery

v. State, No. 02-03-425-CR, 2005 WL 1048707, at *2 (Tex. App.—Fort Worth May

5, 2005, pet. ref’d) (mem. op.; not designated for publication).

      On appeal, Merritt relies on Detective Knotts’s pretrial hearing testimony,

which is outside the four corners of the affidavit, to argue that the arrest warrant was

invalid. Because this argument was not raised in the trial court, it does not comport




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with the trial objection, and it is not preserved for our review. See Wilson, 71 S.W.3d

at 349.

       Moreover, Merritt would not prevail on the merits of this issue. Ordinarily,

we review a trial court’s ruling on a motion to suppress under a bifurcated standard

of review, giving almost total deference to the facts found by the court and reviewing

de novo its application of the law. See Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007). When a motion to suppress is based on a contention that a warrant

was not supported by probable cause, the trial court is “bound by the four corners of

the affidavit.” State v. Elrod, 538 S.W.3d 551, 556–57 (Tex. Crim. App. 2017).

       In that situation, we interpret the affidavit in a common-sense and reasonable

manner, and we determine whether it states sufficient facts “to validate issuance of

a proper warrant.” Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987);

see Rodriguez v. State, 232 S.W.3d 55, 64 (Tex. Crim. App. 2007); Whitemon v.

State, 460 S.W.3d 170, 174 (Tex. App.—Fort Worth 2015, pet. ref’d). We “focus on

the combined logical force of facts” that are in the affidavit. Rodriguez, 232 S.W.3d

at 62. “It is not necessary to delve into all of the facts that were omitted by the affiant,

facts that could have been included in the affidavit, or contrary inferences that could

have been made by the magistrate.” Id. at 64. We will uphold a magistrate’s finding

of probable cause if the affidavit demonstrates a substantial basis for this conclusion.

See id.; Whitemon, 460 S.W.3d at 174.


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      Relying on Franks v. Delaware, 438 U.S. 154 (1978), Merritt contends that

the affidavit was misleading because it omitted the material fact that M.S. had been

untruthful in her police interviews. Merritt asserts that if the affidavit had stated that

M.S. had been untruthful, then the magistrate would have concluded that she was

not credible and disregarded the information she provided connecting Merritt to the

crime. In Franks, the United States Supreme Court held that when a governmental

affiant knowingly, intentionally, or with reckless disregard for the truth includes a

false statement in the warrant affidavit, and the remainder of the affidavit’s content

is insufficient to establish probable cause, the warrant is invalid under the Fourth

Amendment, and evidence obtained as a consequence of the warrant should be

excluded. 438 U.S. 155–56. “[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, and if the

allegedly false statement is necessary to the finding of probable cause, the Fourth

Amendment requires that a hearing be held at the defendant’s request” Id. This is an

exception to the four-corners rule. See id. Because Merritt relies on Franks, we

construe his argument to be that there were material omissions from the affidavit

that were made intentionally, knowingly, or with reckless disregard for the truth. See

Darby v. State, 145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d)




                                            9
(construing argument about omission from affidavit in light of defendant’s reliance

on Franks).

      Although the Court of Criminal Appeals has not extended Franks to

allegations of material omissions, several Texas intermediate appellate courts—

including Houston’s First Court of Appeals and Fort Worth’s Second Court of

Appeals—have done so. See Massey v. State, 933 S.W.2d 141, 146 (Tex. Crim. App.

1996) (court has not applied Franks analysis to allegations of intentional and

material omissions) (internal citations omitted); Darby v. State, 145 S.W.3d 714,

721–22 (Tex. App.—Fort Worth 2004, pet. ref’d) (expressly agreeing with Fifth

Circuit and intermediate Texas appellate courts’ application of Franks analysis to

material omissions); Blake v. State, 125 S.W.3d 717, 724 (Tex. App.—Houston [1st

Dist.] 2003, no pet.) (same).

      In this case the record does not reflect, by a preponderance of the evidence,

that Detective Knotts intentionally or knowingly, with reckless disregard for the

truth, made any misstatements or omissions in the affidavit that would affect the

finding of probable cause. The affidavit describes the robbery with some facts set

forth in the affidavit corroborating others. For example, V.S. said M.S. arrived home

in a white vehicle and neighbors reported that they saw the young women leaving

150 Aspen Court in a white vehicle. M.S. told Detective Knotts that she was part of

the group that planned the robbery, that she participated and the role she played, and


                                         10
that she knew some but not all the men who participated. She also provided

photographs, nicknames, and descriptions of three of the four men who participated,

including Merritt. Holt corroborated M.S.’s statements about Merritt’s identity. The

affidavit itself shows that M.S. planned and participated in the robbery and that she

had personal knowledge that Merritt also participated.

      The arrest warrant affidavit described one lie told by M.S.: “[M.S.] said that

she ran out of the house during the robbery and went to a nearby McDonald’s where

she met a friend who called her an Uber. [M.S.] later said she had lied about how

she got home and told me she went home with [Holt] and [Bharrat].” M.S.’s

untruthfulness about how she got home does not impact the probable cause analysis

because how she got home that night is not material to whether she had seen and

could identify the others who participated in the crime.

      Merritt relies on testimony from Detective Knotts in the pretrial hearing in

which he acknowledged that M.S. had lied to him:

      Q.     And she [M.S.] had lied to you repeatedly, correct?

      A.     She did lie, yes, sir.

      Q.     Okay. You didn’t put in your affidavit that when you’d
             interviewed [M.S.] a couple of times or—I don’t know how
             many times, but however many times you did, that she lied to
             you those times, did you?

      A.     In the affidavit?

      Q.     Right.

                                         11
      A.     No, sir.

      The record does not indicate anything else that M.S. lied about or whether it

was material to a determination of probable cause. Therefore, even if we were to

review this issue under a Franks analysis, we would conclude that Merritt did not

carry his burden to prove by a preponderance of the evidence that there were material

omissions from the affidavit that were made intentionally, knowingly, or with

reckless disregard for the truth.

      We overrule Merritt’s first issue.

II.   Motion to suppress defendant’s statements

      In his second issue, Merritt argues that the trial court erred by providing a

partial definition of reasonable doubt in the court’s charge to the jury. Specifically,

Merritt challenges the following instruction:

            It is not required that the Prosecution prove guilt beyond all
      possible doubt; it is required that the Prosecution’s proof excludes all
      “reasonable doubt” concerning the Defendant’s guilt.

             In the event you have a reasonable doubt as to the Defendant’s
      guilt after considering all the evidence before you, and these
      instructions, you will acquit him and say by your verdict “Not Guilty.”

      Merritt asserts that the courts of appeals are split on whether these instructions

are erroneous, yet he concedes that both the First and the Second Courts of Appeals

have held that it is not error to include that language in a jury charge. See Burrows

v. State, 492 S.W.3d 398, 408 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d);


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Frank v. State, 183 S.W.3d 63, 79 (Tex. App.—Fort Worth 2005, pet. ref’d). In

addition, the Court of Criminal Appeals has held that inclusion of that language in a

jury charge is proper. See Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App.

2010); Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004).

      We overrule Merritt’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Peter Kelly
                                                Justice

Panel consists of Chief Justice Radack and Justices Lloyd and Kelly.

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




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