                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00028-CR


TRAVIS CHRIS GRAY                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1
                                     ----------

      Appellant Travis Chris Gray appeals his conviction for possession of four

or more but less than two hundred grams of cocaine. See Tex. Health & Safety

Code Ann. §§ 481.102(3)(d), 481.115(a), (d) (West 2010). He contends in one

point that the evidence of cocaine found in plain view during a search pursuant to

a warrant should have been suppressed because the supporting affidavit failed to

      1
       See Tex. R. App. P. 47.4.
provide facts establishing probable cause that evidence was located at the place

listed in the affidavit. See Tex. Code Crim. Proc. Ann. art. 18.01 (West Supp.

2010). We affirm.

                               Background Facts

       Police officers arrested appellant after they seized cocaine found in plain

view while searching his house for evidence that he had kidnapped, assaulted,

and battered his ex-girlfriend. Because appellant challenges the sufficiency of

the search warrant affidavit to show probable cause that evidence of these

crimes would be found at his house, we provide the facts as stated in the

affidavit.

       Appellant‘s ex-girlfriend called the police with her cell phone from a

McDonald‘s restaurant, where appellant had taken her. By the time the police

arrived, appellant was gone.     The police took photographs showing that the

complainant had two black eyes and bruises on her head, face, and body. The

police completed a family violence packet and gave the dispute a report number,

which was subsequently assigned to Detective M.D. Green.

       Three days later, appellant‘s ex-girlfriend gave Detective Green a recorded

statement. Detective Green observed swelling and bruising on her arms and

neck; the complainant also told Detective Green that she had sustained injuries

to her arms, which bled.




                                        2
      In the affidavit, Detective Green states that appellant had pulled the

complainant out of a friend‘s car in which she had been riding, had handcuffed

her arms behind her back, and had forced her into his car. In his car, he placed

the child safety lock on so that she could not escape. Appellant drove to a

friend's house, grabbed a hammer from the garage, and struck her with the

wooden handle. After driving to a deserted area, he also struck her with his fist,

and he kicked her several times in the side.

      Appellant then drove his ex-girlfriend to his house.       Before taking her

inside, he threw the hammer handle in the common area of his duplex‘s yard.

Appellant kept her in his house overnight. The affidavit states ―[t]hat the following

day [appellant] uncuffed [her] and drove her to the McDonald[‘]s to get her

something to eat,‖ which is where she called the police. The police did not find

appellant at the McDonald‘s.

      The affidavit also states that Detective Green, accompanied by another

detective, went to appellant‘s address, and they found the wooden hammer

handle in plain view in the yard.

      The affidavit asked for a warrant to search appellant‘s residence for the

following items: (1) handcuffs, (2) blood or other biological evidence, (3) hair,

fibers, fingerprints, or other trace evidence, and (4) any other evidence of an

aggravated kidnapping offense. After reviewing the foregoing allegations in the

affidavit, the magistrate issued a warrant to search appellant‘s residence for the


                                         3
items listed in the affidavit. Officers executed the warrant, but instead of finding

evidence associated with the alleged kidnapping, except for a handcuffs key,

they seized cocaine that was in plain view.

      At trial, appellant objected to the validity of the search, challenging the

sufficiency of the affidavit to show probable cause that evidence of the alleged

aggravated kidnapping was at his residence. The court reviewed the affidavit,

overruled appellant‘s objection, and admitted the evidence about the cocaine.

                               Standard of Review

      The Fourth Amendment to the United States Constitution requires that ―no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to

be seized.‖ U.S. Const. amend. IV. Under article 18.01 of the code of criminal

procedure, a search warrant may be obtained from a magistrate only after

submission of an affidavit setting forth substantial facts establishing probable

cause. Tex. Code Crim. Proc. Ann. art. 18.01(b).

      Probable cause exists if, under the totality of the circumstances set forth in

the affidavit before the magistrate, there is a ―fair probability‖ that contraband or

evidence of a crime will be found in a particular place at the time the warrant is

issued. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); Flores

v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). The magistrate may

interpret the affidavit in a nontechnical, common-sense manner and may draw


                                         4
reasonable inferences from the facts and circumstances contained within its four

corners. Flores, 319 S.W.3d at 702; Cassias v. State, 719 S.W.2d 585, 587–88

(Tex. Crim. App. 1986) (op. on rehg).        In United States v. Ventresca, the

Supreme Court described the flexibility that should be accorded to magistrates:

             These decisions reflect the recognition that the Fourth
      Amendment‘s commands, like all constitutional requirements, are
      practical and not abstract. If the teachings of the Court‘s cases are
      to be followed and the constitutional policy served, affidavits for
      search warrants, such as the one involved here, must be tested and
      interpreted by magistrates and courts in a commonsense and
      realistic fashion. They are normally drafted by nonlawyers in the
      midst and haste of a criminal investigation. Technical requirements
      of elaborate specificity once exacted under common law pleadings
      have no proper place in this area. A grudging or negative attitude by
      reviewing courts toward warrants will tend to discourage police
      officers from submitting their evidence to a judicial officer before
      acting.

             This is not to say that probable cause can be made out by
      affidavits which are purely conclusory, stating only the affiant‘s or an
      informer‘s belief that probable cause exists without detailing any of
      the ‗underlying circumstances‘ upon which that belief is based.
      Recital of some of the underlying circumstances in the affidavit is
      essential if the magistrate is to perform his detached function and
      not serve merely as a rubber stamp for the police. However, where
      these circumstances are detailed, where reason for crediting the
      source of the information is given, and when a magistrate has found
      probable cause, the courts should not invalidate the warrant by
      interpreting the affidavit in a hypertechnical, rather than a
      commonsense, manner. 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.




                                         5
380 U.S. 102, 108–09, 85 S. Ct. 741, 746 (1965) (citation omitted). Reviewing

courts give great deference to a magistrate‘s determination of probable cause.

Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Rodriguez v. State, 232 S.W.3d 55,

59–60 (Tex. Crim. App. 2007). ―[T]he duty of the reviewing court is simply to

ensure that the magistrate had a substantial basis for concluding that probable

cause existed.‖    Gates, 462 U.S. at 238–39, 103 S. Ct. at 2332 (internal

quotations omitted).

                                     Analysis

      In reviewing the sufficiency of the affidavit‘s showing of probable cause, we

consider whether the affidavit established probable cause for any one of the four

items listed in it. See Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App.

1996) (explaining the rule of severability by which invalid portions of a warrant

are severable from valid portions) cert. denied, 520 U.S. 1198 (1997).

      Handcuffs were the first items listed in the affidavit. The affidavit stated

that appellant handcuffed his ex-girlfriend in the car and kept her in the handcuffs

throughout the night at his house. He uncuffed her the next day and took her to

a McDonald‘s. Appellant contends that the affidavit failed to establish probable

cause that the handcuffs would be found at his house because it did not indicate

where the handcuffs were left upon removal; appellant argues that they could

have been taken off and left in his car rather than his house. Although the

affidavit does not expressly state that appellant and the complainant were still at


                                         6
his house when he removed the handcuffs, it is just as reasonable to infer that

they were in the house as in the car. See Rodriguez, 232 S.W.3d at 64 (―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.‖).         We conclude that the affidavit provides

sufficient evidence to show probable cause that handcuffs would be found at

appellant‘s home.

      Even had there not been sufficient evidence to show probable cause

regarding the handcuffs, the affidavit contains sufficient facts to warrant a

reasonable inference that the second and third items would be found at the

house, given the forceful nature of the kidnapping and detainment of appellant‘s

ex-girlfriend as outlined in the affidavit.   According to the affidavit, appellant

physically battered her, causing her to bleed on her arms and sustain various

other injuries on her body.     The affidavit also states that appellant held her

captive in handcuffs in his house throughout the night. Based on the foregoing

facts, we hold that it is a reasonable inference from the facts in the affidavit that

blood, hair, fibers, fingerprints, or other evidence of the complainant‘s injuries

probably could be found at appellant‘s house. See State v. Duncan, 72 S.W.3d

803, 807–08 (Tex. App.—Fort Worth 2002, pet. dism‘d) (holding it could be

reasonably inferred that videotape and pictures of sexual activity would be found

at appellant‘s house given intimate nature of sexual activity and fact that he


                                         7
recorded it with hidden cameras); see also Wamsley v. State, No. 02-06-00089-

CR, 2008 WL 706610, at *18 (Tex. App.—Fort Worth Mar. 13, 2008, pet. ref‘d)

(mem. op., not designated for publication) (holding magistrate could reasonably

infer from affidavit that blood would be found in car used by murderers because

there was blood at crime scene and it was likely that murderers got blood on

themselves).

      Giving deference to the magistrate‘s decision to issue the search warrant,

and applying the applicable law to the facts in this case, we conclude that the

affidavit provided the magistrate with probable cause necessary for the issuance

of a search warrant of appellant‘s house. See Gates, 462 U.S. at 236, 103 S. Ct.

at 2331; Rodriguez, 232 S.W.3d at 59–60; see also Duncan, 72 S.W.3d at 806.

Accordingly, we overrule appellant‘s sole point.

                                   Conclusion

      Having overruled appellant‘s sole point, we affirm the trial court‘s

judgment.



                                                   PER CURIAM

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 27, 2011



                                        8
9
