                                                                                     ACCEPTED
                                                                                 06-14-00239-CR
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                           7/22/2015 10:09:39 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK

                          NO. 06-14-00239-CR

____________________________________________________________
                                                  FILED IN
                                                         6th COURT OF APPEALS
                                                           TEXARKANA, TEXAS
                      IN THE COURT OF APPEALS            7/23/2015 8:50:00 AM
                                                             DEBBIE AUTREY
                            SIXTH DISTRICT                       Clerk


                    AT TEXARKANA, TEXAS
____________________________________________________________
              MARK EUGENE ENGLE, APPELLANT

                                    V.

               THE STATE OF TEXAS, APPELLEE
____________________________________________________________

                 APPEAL IN CAUSE NUMBERS 29,110

               IN THE 354TH JUDICIAL DISTRICT COURT

                  OF HUNT COUNTY, TEXAS
____________________________________________________________

                    BRIEF FOR APPELLANT
____________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Comes now the Appellant and submits this brief pursuant to the provisions

of the Texas Rules of Appellate Procedure in support of his request for the

judgment of conviction to be overturned in Cause No. 29,110.



                    Appellant Requests Oral Argument
                 IDENTITY OF PARTIES AND COUNSEL

Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011

Appellant’s Trial Attorney:
Katherine A. Ferguson
P.O. Box 21
2900 Lee St., Suite 102
Greenville TX, 75403

Appellee:
The State of Texas by and through
Noble Walker
Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401

Appellee’s Trial Counsel:
Steven Lilley
Hunt County District Attorney’s Office
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401




                                                   2
                                    TABLE OF CONTENTS



Identity of the Parties and Counsel ............................................................. 2

Table of Contents ....................................................................................... 3

Index of Authorities ..................................................................................... 4

Statement of the Case ................................................................................ 6

Issue Presented .......................................................................................... 7

Statement of the Facts ................................................................................ 8

Argument and Authorities ........................................................................... 9



        Issue Number One ........................................................................... 9

        The trial court erred by denying Appellant’s motion to suppress
        evidence


Prayer for relief ........................................................................................ 18

Certificate of Word Count .......................................................................... 19

Certificate of Service ................................................................................. 19




                                                                                                           3
                               INDEX OF AUTHORITIES

FEDERAL CASES:

Illinois v. Gates, 462 U.S. 213, 236 (1983). ................................................. 9

Jones v. United States, 362 U.S. 257, 271 (1960). ................................... 10

STATE CASES:

Bass v. State 64 S.W.3d 646 (Tex.App. —Texarkana 2001)..................... 10

Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). .................... 10

Coats v, State, 815 S.W.2d 715 (Tex.Crim. app. 1991) ............................ 13

Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). .................. 10

Elardo v. State, 163 S.W.3d 760 (Tex. App.-Texarkana 2005, pet. ref'd) .. 11

Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007). ...................... 10

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001) ..................... 15

Taunton v. State, ___ S.W. 3d ____(Tex. App.-Texarkana 2015) ............... 9

Rodriguez v. State, 232 S.W.3d 55, (Tex. Crim. App. 2007) ....................... 9

State v. Ballard, 987 S.W.2d 889, 891 Tex.Crim.App.1999)...................... 10

State v. Delagarza, 158 S.W.3d 25 (Tex. App.-Austin 2005, no pet.) ........ 12

State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011) ................... 9

State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000) ......................... 10

Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004) .................... 9




                                                                                              4
STATE STATUTES:

Tex. Code Crim. Proc. Ann. art. 18.01(c) (Casemaker 2015) .................... 12

Tex. R. App. P. 44.2(a) (Casemaker 2015) ............................................... 16




                                                                                         5
                       STATEMENT OF THE CASE



     This is an appeal of and sentence in criminal case for the 354th

Judicial District, in Hunt County, Texas. Appellant was convicted

Manufacturing and Delivery of a Controlled Substance Penalty Group 1

More than Four Grams but less than 200 Grams. After Appellant’s motion

to suppress the evidence was denied by the trial court, Appellant Plead

Guilty. Appellant was assessed a sentence Life Imprisonment on October

1, 2014 by a Jury. Notice of appeal was given on October 3, 2014. The

clerk's record was filed November 10, 2014. The reporter's record was

filed on February 11, 2014.




                                                                          6
              ISSUE PRESENTED


ISSUE ONE:

THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION TO SUPPRESS EVIDENCE




                                               7
                        STATEMENT OF THE FACTS

      On December 7, 2012 an alleged victim to a sexual assault

apparently through another person contacted Greenville PD and a report

was made by an officer Petrea. The report was made into an affidavit in

support of a search warrant by and sworn to by affidavit Felicia White in

front of the former Judge Steven Tittle of the 196th District Court. (RR Vol.

22, Joint Exhibit 1.)

      Throughout the affidavit, the Affiant White, refers to the alleged facts

known to her only through a report appearing to be made by Petrea. Most

every sentence referring to an alleged sexual assault begins with “Said

report states.” Then the White described the facts she apparently read

from another officer.

      White stated that, “Jane Doe could not go into detail about the

assault. (RR Vol. 22, Joint Exhibit 1. p.3).

      After a hearing the trial court in denied appellant’s Motion to suppress

and made findings stating it considered the totality of the circumstances

there was probable cause within the four corners of the Application for

Search warrant to issue to search for sexual assault. (CR Vol. 1 p. 90) The

trial court made a formal order denying the motion to suppress on

September 11, 2014. (CR Vol. 1p.94).



                                                                                 8
                                ARGUMENT

      Issue One: The trial court erred by denying Appellant’s motion to
      suppress evidence.


      The United States and Texas Constitutions guarantee the right of the

people to be secure against unreasonable searches of their persons,

houses, papers, and effects. U.S. Const. amend. IV; Tex. Const. art. I, § 9.

As an exception to the general rule articulated by the Texas Court of

Criminal Appeals an issuing magistrate's decision to grant an application

for a search warrant should be reviewed with a deferential standard of

review. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).

      The deferential review "encourage[s] 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). Courts have found that affidavits for arrest or search warrants

should be interpreted in a "'common sense and realistic manner, '" and

once a magistrate has found probable cause, warrants should not

thereafter be invalidated through a "hypertechnical" interpretation of their

supporting affidavits. Illinois v. Gates, 462 U.S. 213, 236 (1983); Crider v.

State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011).



                                                                                9
      Courts can sustain the issuance of the warrant if "the magistrate had

a 'substantial basis for . . . conclud[ing]' that a search would uncover

evidence of wrongdoing." Gates, 462 U.S. at 236 (quoting Jones v. United

States, 362 U.S. 257, 271 (1960)).

      Yet, Courts do not grant that same degree of deference to a

reviewing trial court. Courts review the trial court's ruling on a motion to

suppress by an abuse of discretion standard. Bass v. State 64 S.W.3d 646

(Tex.App. —Texarkana 2001). In a suppression hearing, the trial court is

the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimonies. Courts view the evidence in the light

most favorable to the trial court's ruling, State v. Ballard, 987 S.W.2d 889,

891 Tex.Crim.App.1999), and afford almost total deference to the trial

court's determination of historical facts which the record supports,

especially when the fact findings are based on an evaluation of the

witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856

(Tex.Crim.App.2000).

      This Court stated in Taunton v. State, a motion to suppress is

normally reviewed based on a bifurcated standard which (1) grants

deference to the trial court's determinations of historical facts that are

based on an evaluation of credibility and (2) reviews de novo the trial



                                                                                10
court's application of the law. Taunton v. State, ___ S.W. 3d ____(Tex.

App.-Texarkana 2015), citing State v. McLain, 337 S.W.3d 268, 271 (Tex.

Crim. App. 2011).

      "However, when the trial court is determining probable cause to

support the issuance of a search warrant, there are no credibility

determinations, rather the trial court is constrained to the four corners of the

affidavit." Id. "Because probable cause to support the issuance of the

warrant is determined from the 'four corners' of the affidavit alone, there are

no credibility choices to be made by the trial court,"

      The review of the trial court’s ruling is then de novo. Elardo v. State,

163 S.W.3d 760, 765 (Tex. App.-Texarkana 2005, pet. ref'd).

      To justify the issuance of a search warrant, the supporting affidavit

must set forth facts sufficient to establish probable cause: (1) that a

specific offense has been committed, (2) that the specifically described

property or items that are to be searched for or seized constitute evidence

of that offense or evidence that a particular person committed that offense,

and (3) that the property or items constituting evidence to be searched for

or seized are located at or on the particular person, place, or thing to be

searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (Casemaker 2015).




                                                                                 11
      The facts alleged in the affidavits "must be sufficient to justify a

conclusion that the object of the search is probably on the premises at the

time the warrant is issued." State v. Delagarza, 158 S.W.3d 25, 26 (Tex.

App.-Austin 2005, no pet.). The determination of the sufficiency of an arrest

or search warrant is limited to the four corners of the affidavit. Tauton "The

issue is not whether there are other facts that could have, or even should

have, been included in the affidavit; we focus on the combined logical force

of facts that are in the affidavit, not those that are omitted from the

affidavit." Rodriguez, 232 S.W.3d at 62.

      Affidavit insufficient under its “Four Corners”

      In the case at bar the affiant, did not give sufficient facts to justify the

issuance of a search warrant. It clear that the affiant attempted to show the

affidavit was based upon her training and experience as an officer when

she stated her training an education. (RR Vol. 22, Joint Exhibit 1. p.2). Yet,

in actuality the a statement of officer Petrea’s experience would have been

more appropriate. Once more, there is no clear indication that White’s

training and experience she was able to determine that Petrea made an

investigation that resulted in reliable evidence, or even that she knew his

experience and training would have led him to obtain reliable information.

either based on her personal experience of Officer Petrea.



                                                                                 12
Here, one cannot discern from the four corners of the affidavit that entry in

the hotel room will further the investigation. The trial court erred that

      There is no indication that the information provided by Jane Doe is

reliable for any reason. The facts presented little corroboration nor was

there evidence of precious reliable information. Based on these facts Jane

Doe acted similar to a confidential informant. Courts have found there was

no probable cause when informant known to the officer only three weeks

and the evidence provided offered very little corroboration or evidence of

previous reliable information. Coats v, State, 815 s.w.2d 715 (Tex.Crim.

app. 1991). Once more there is no clear indication in the four corners of

the affadavit that Appellant did any of the sexual acts without the consent of

Jane Doe. Affiant White stated in here affidavit she also apparently spoke

with a person named Holly Robinson, the executive Director of the Crisis

Center of Northeast Texas. (RR Vol. 22, Joint Exhibit 1. p.4). There is no

indication that Robinson had any experience or even ben with the center

for any period of time. Again White stated in her affidavit certain sex acts

but there is no indication that those acts were done against the consent of

Jane Doe.

Suppression under Franks v. Delaware




                                                                               13
      At the motion to suppress hearing the evidence came to light that

rose to that the Officers had a reckless disregard for the truth. Appellant’s

trial attorney had the following exchange with the affiant:


      Q:Y'all have absolutely no idea about her history, her truthfulness or
lack thereof, correct?
      A :Correct.
      Q :She spins a tale for you and you fill out an affidavit for a search
warrant, correct?
      A: Yes.

      (RR Vol. 17 p.18-19). Affiant White even admitted she had only

done 3 or 4 search warrants before, and does not normally do them. (RR

Vol. 17 p. 32). White stated relative inexperience despite stating in her

affidavit she has experience and received additional training that included

sexual assault investigation. Jane Doe was a transient person and not

someone known to the local police. (RR Vol. 17 p.18). White or even the

police department was able to corroborate anything from before the

affidavit was made. (RR Vol.17 p.14).

      Under Franks v. Delaware, a defendant who makes a substantial

preliminary showing that a false statement was made in a warrant affidavit

knowingly and intentionally, or with reckless disregard for the truth, may be

entitled by the Fourth Amendment to a hearing, on the defendant's request.

This hearing is required only where the false statement is essential to the



                                                                              14
probable cause finding. If at the hearing the defendant establishes the

allegation of perjury or reckless disregard by a preponderance of the

evidence, the affidavit's false material is set aside. If the remaining content

of the affidavit does not then still establish sufficient probable cause, the

search warrant must be voided and the evidence resulting from that search

excluded Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007).

      After the above testimony was elicited from the White it clear that the

affidavit was made with reckless disregard for the truth. Therefore the

evidence should have been suppress and his conviction should be

overturned.

Constitutional Error

      The erroneous admission of evidence over a Fourth Amendment

objection is a constitutional error, and reversal is required unless the

appellate court determines beyond a reasonable doubt that the error did

not contribute to the conviction. Hernandez v. State, 60 S.W.3d 106, 106

n.1 (Tex. Crim. App. 2001 )

      The reviewing court must reverse the conviction if there is a

reasonable possibility that the error, within the context of the trial, moved

the jury from acquitting the defendant to convicting him. Davis v.State

addition to the caselaw, courts are directed by Rule 44.2(a) of the Texas



                                                                                15
Rules of Appellate Procedure. It states: If the appellate record in a criminal

case reveals constitutional error that is subject to harmless error review,

the court of appeals must reverse a judgment of conviction or punishment

unless the court determines beyond a reasonable doubt that the error did

not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a)

(Casemaker 2015).

        In making this determination, the appellate court must consider the

entire record and weigh the following factors: "(1) the importance of the

[complained-of] evidence to the State's case; (2) whether the . . . evidence

was cumulative of other evidence; (3) the presence or absence of other

evidence corroborating or contradicting the [complained-of] evidence, . . .;

(4) the overall strength of the State's case"; and (5) any other factor in the

record that affects the probable impact of the error. Clay v. State, 240

S.W.3d 895, 904 (Tex. Crim. App. 2007) (citing Davis v. State , 203 S.W.3d

845).

        In this case the evidence of the methamphetamine is the only

contraband complained of in his indictment. Admittedly here the Appellant

plead guilty to the crime, but it was only after the trial court overruled his

motion to suppress. Without the methamphetamine there is no other valid

of admissible evidence to convict the Appellant. The trial court did note



                                                                                 16
even get to the issue of an admissibility of statements made by defendant

because it was a case conceding position of contraband found in

Appellants hotel room. Therefore the error contributed to the plea of guilty

and conviction of Appellant.




                                                                            17
                           PRAYER FOR RELIEF

      Wherefore, premises considered, Appellant respectfully prays that his

conviction in the above entitled and numbered cause be reversed and

acquit him. Appellant further prays for all other lawful relief to which he

may be entitled, at law or in equity.

                                                 Respectfully submitted,




                                                 Jason A. Duff
                                                 State Bar No. 24059696
                                                 2615 Lee Street
                                                 P.O. Box 11
                                                 Greenville, TX 75403-0011

                                                 Attorney for the Appellant




                                                                              18
 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and

(i), the undersigned attorney or record certifies that Appellant's Brief

contains 14-point typeface of the body of the brief, 12-point typeface for

footnotes in the brief and contains 1,985 words, excluding those words

identified as not being counted in appellate rule of procedure 9.4(i)(1), and

was prepared on Microsoft Word 2010.




Jason A. Duff
Attorney for the Appellant

                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and

foregoing instrument was forwarded to Hunt County District Attorney Noble

D. Walker, Jr., P.O. Box 1097, Greenville, Texas 75403, on this the 22nd

day of July, 2015, by hand and to the Court of Appeals in Texarkana via

Electronic Filing.




                                                                 Jason A. Duff
                                                     Attorney for the Appellant


                                                                             19
