Opinion issued May 19, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00748-CR
                           ———————————
                      JAMES LEE SKINNER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1315689


                         MEMORANDUM OPINION

      Appellant James L. Skinner pleaded guilty to the reduced charge of second

degree possession of methamphetamine, weighing more than 4 grams and less than

200 grams. The trial court deferred Skinner’s adjudication and placed him on

community supervision for ten years. On appeal, Skinner argues that the trial court
erred in denying motions to suppress products of the search warrant and denying a

motion for disclosure of the informant’s identity. We affirm.

                                   Background

      On August 4, 2011, the Harris County Magistrate issued a search warrant for

Skinner’s residence located in Houston, Texas.       Houston Police Department

Officer B. McCord authored the warrant affidavit, which provided the following

factual support:

             Within the past forty eight (48) hours, Houston Police Sergeant
             J. Yencha and your Affiant met with a credible and reliable
             confidential informant regarding narcotics activity at 4810
             Hazard located in Houston, Harris County, Texas. Affiant has
             worked with the confidential informant on previous occasions
             and the information provided by this confidential informant has
             proven to be true and correct and the information has led to
             felony arrests.

             Affiant did not find any illegal narcotics and money after
             checking the confidential informant during the meeting and
             before and after the investigation. Affiant provided the
             confidential informant with a quantity of City of Houston
             money and instructed the confidential informant to go to 4810
             Hazard, Houston, Harris County, Texas and attempt to purchase
             methamphetamine from the residence. Affiant followed the
             confidential informant to the residence while Sergeant Yencha
             maintained visual surveillance from a nearby location. Affiant
             watched as the confidential informant arrived and entered into
             the residence without making any stops. Shortly thereafter,
             Sergeant Yencha and I saw the confidential informant leave the
             residence. Affiant immediately followed the confidential
             informant directly to the preselected location without making
             any stops.




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             The confidential informant handed Affiant a clear plastic bag
             with a crystal like substance that resembled methamphetamine.
             According to the confidential informant, he/she asked the white
             male known as “James Skinner” for methamphetamine. The
             confidential informant told Affiant the white male known as
             “James Skinner” handed him/her a quantity of
             methamphetamine in exchange for the City of Houston money.
             The confidential informant stated that this white male known as
             “James Skinner” sold him/her the methamphetamine. The white
             male known as “James Skinner” advised the confidential
             informant that he had more methamphetamine and that he/she
             could come back anytime to get more methamphetamine.

             The confidential informant told Affiant that he/she has seen
             methamphetamine on numerous occasions and can recognize
             methamphetamine by odor and sight. Affiant conducted a field
             test on the substance believed to be methamphetamine the
             confidential informant purchased from the white male known as
             “James Skinner” from 4810 Hazard and found that it contained
             methamphetamine substances.

Officers executed the warrant the day after its issuance, whereupon they seized

several   controlled    substances     from        Skinner’s   residence,   including

methamphetamine and gamma-hydroxybutyric acid (“GHB”).

      At trial, Skinner moved to suppress products of the search warrant on two

grounds. First, Skinner argued that the warrant affidavit provides an insufficient

basis for a probable cause finding because it failed to specify when events and

observations reported in the affidavit occurred.

      Second, Skinner argued that the affidavit contains knowing or reckless

material misstatements and omissions regarding the controlled buy, thereby

rendering the warrant invalid pursuant to Franks v. Delaware, 438 U.S. 154, 98

                                          3
S. Ct. 2674 (1978). In support, Skinner introduced an affidavit recounting errands

and appointments that had kept Skinner away from home when the controlled buy

purportedly occurred. An affidavit and appointment calendar from Nassim Joseph

corroborated Skinner’s averment that he met Joseph for a two-hour lunch at Lupe

Tortilla Restaurant at 3:30 p.m. on August 3, 2011.1 Skinner also submitted

location data from his cellular telephone service provider purportedly showing that

he made calls at 3:16 p.m. and at 4:45 p.m. from the area near the restaurant. At a

hearing on the motion, Skinner developed testimony from Officers McCord and

Yencha clarifying the circumstances of the controlled buy. The trial court denied

the motion.

      Additionally, Skinner moved for disclosure of the confidential informant’s

identity on the grounds that the informant could provide testimony necessary to a

determination of guilt or innocence as well as testimony relevant to the validity of

the warrant. After hearing argument and conducting an in camera hearing with the

confidential informant, the trial court denied the motion.

                                 Motion to Suppress

      By his first issue, Skinner contends that the trial court erred in denying

Skinner’s motion to suppress because the warrant affidavit fails to provide an

adequate basis for a probable cause finding.

1
      Though not stated in the warrant affidavit, the officers testified that the controlled
      buy happened around 5:00 p.m. on Wednesday, August 3, 2011.

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A.    Standard of Review

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

standard, giving almost total deference to the historical facts found by the trial

court and reviewing de novo the trial court’s application of the law. State v.

McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). Our review is constrained

to the four corners of the probable cause affidavit, and we “interpret the affidavit in

a commonsensical and realistic manner, recognizing that the magistrate may draw

reasonable inferences.” Id. “When in doubt, we defer to all reasonable inferences

that the magistrate could have made.” Id. (quoting Rodriguez v. State, 232 S.W.3d

55, 61 (Tex. Crim. App. 2007)).

B.    Applicable Law

      The Fourth Amendment provides that “[n]o warrants shall issue, but upon

probable cause, supported by oath or affirmation.”         U.S. CONST. amend. IV.

Probable cause supporting issuance of a warrant exists “when, under the totality of

the circumstances, there is a fair probability that contraband or evidence of a crime

will be found at the specified location.” McLain, 337 S.W.3d at 272; see also

Rodriguez, 232 S.W.3d at 60–61.

      The standard is flexible and non-demanding. Id. However, a magistrate

must be able to ascertain the time of events and observations forming the basis for

a probable cause finding from the affidavit. Jones v. State, 338 S.W.3d 725, 736



                                          5
(Tex. App.—Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App.

2012). The facts averred in a warrant affidavit “must be so closely related to the

time of the issuance of the warrant as to justify a finding of probable cause at the

time.” Id. (quoting Peltier v. State, 626 S.W.2d 30, 32 (Tex. Crim. App. 1981));

see also Peltier, 636 S.W.2d at 32 (declining to infer that averments were recently

observed where affidavit failed to expressly state when past activities occurred and

when observations were made).

C.    Analysis

      Skinner contends that the warrant affidavit fails to provide a substantial basis

for the magistrate’s probable cause determination because it fails to specify when

the controlled buy occurred. Officer McCord’s factual recitation begins:

      Within the past forty eight (48) hours, Houston Police Sergeant J.
      Yencha and your Affiant met with a credible and reliable confidential
      informant regarding narcotics activity at 4810 Hazard located in
      Houston, Harris County, Texas.

In the following paragraph, McCord reports that she “checked” the confidential

informant for illegal narcotics and money “during the meeting and before and after

the investigation.” Appellant contends that the single temporal reference—“within

the past forty eight (48) hours”—inadequately explains when events and

observations occurred.

      By stating that the officers had met with the informant within the past 48

hours, the affidavit provided an adequate timeframe from which the magistrate


                                          6
could then determine that evidence sought would be at the location when the

warrant issued. Though Officer McCord did not provide a specific date or time, all

of the facts averred follow the opening phrase “within the past forty-eight (48)

hours.” The magistrate reasonably could have inferred that the opening phrase

“within the past forty eight (48) hours” referred to all the events and observations

that followed. See State v. Griggs, 352 S.W.3d 297, 303–04 (Tex. App.—Houston

[14th Dist.] 2011, pet. ref’d) (holding that affidavit stating affiant had met with

informant for controlled buy “[w]ithin the past 48 hours” provided adequate

timeframe from which magistrate could make probable cause finding); McLain,

337 S.W.3d at 273 (statement that affiant received information from informant “in

the past 72 hours” allowed reasonable inference that controlled substances were

probably at suspected place when warrant issued). This conclusion is bolstered by

the affiant’s averment that, during the controlled buy, Skinner suggested that his

possession and delivery of controlled substances was ongoing by assuring the

informant that he could “come back anytime to get more methamphetamine.” See

Jones, 338 S.W.3d at 736–37 (“Facts indicating ongoing criminal activity have

long been recognized as diminishing the importance of establishing a specific and

immediate time period in the affidavit.”).

      Similarly, we find that a commonsensical and realistic reading of the

affidavit suggests that the “meeting” occurred coincident to the “investigation,” or



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controlled buy. In other words, a commonsensical reading of the entire affidavit

and reasonable inferences therefrom suggests that “meeting” and “investigation”

refer to a single course of events, and that the officers both met with the informant

and executed the controlled buy within 48 hours of preparing and submitting the

warrant affidavit.2 See United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct.

741, 746 (1965) (explaining that reviewing courts must interpret warrant affidavits

in a commonsensical and realistic matter in part precisely because “[t]hey are

normally drafted by nonlawyers in the midst and haste of a criminal

investigation”).

      We conclude that the temporal reference within the affidavit provided a

basis from which the magistrate reasonably could conclude that there was a fair

probability that a search would uncover evidence of wrongdoing at the time the

warrant was issued. While Officer McCord’s affidavit could have been more

precise, the magistrate reading it in a commonsensical manner reasonably could

have inferred that all the activities and observations recited therein happened

“within the past forty-eight (48) hours.” See Griggs, 352 S.W.3d at 303–04 (single

temporal reference explaining that controlled buy occurred “within the past 48

hours” sufficiently provided time frame from which the magistrate could determine


2
      Such a reading is consistent with testimony offered by Officers McCord and
      Yencha, who consistently and unequivocally recounted meeting with the
      informant immediately before and after executing the controlled buy.

                                          8
that the evidence sought would be at residence when warrant issued); McLain, 337

S.W.3d at 273 (under commonsensical reading, single temporal reference

explaining that informant observed appellee with controlled substance “in the past

72 hours” sufficiently provided time frame from which the magistrate could

determine that evidence sought would be at residence when warrant issued).

      We overrule Skinner’s first issue.

                                 Franks Motion

      By his second issue, Skinner contends that the trial court erred in denying

his Franks motion because Officer McCord recklessly disregarded the truth when

she swore in the affidavit that she “checked” the informant for narcotics before

executing the controlled buy. In response, the State asserts that Skinner failed to

preserve the alleged error.

A.    Standard of Review

      We review a trial court’s ruling on a Franks suppression issue under a mixed

standard of review that gives almost total deference to the trial court’s ruling on

questions of fact that depend upon evaluations of credibility and demeanor, but

reviews de novo the application of the law. Jones, 338 S.W.3d at 739; Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). Though this is the same

mixed standard of review applicable to an alleged probable cause deficiency, in

deciding a Franks motion, the court may look beyond the four corners of the



                                           9
warrant affidavit and consider evidence offered by the movant “because this attack

on the sufficiency of the affidavit arises from claims that it contains false

statements.” Jones, 338 S.W.3d at 739 (citing Franks, 438 U.S. at 155–56, 98 S.

Ct. at 2676).

B.    Applicable Law

      Though an affidavit supporting a warrant is entitled to a presumption of

validity, that assumption may be challenged. Cates v. State, 120 S.W.3d 352, 355

(Tex. Crim. App. 2003). Under Franks, “where 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.”

Franks, 438 U.S. at 156. While the Fourth Amendment demands a truthful factual

basis for a probable cause finding, it does not require that the affidavit be

“‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily

correct.” Id. at 165. Rather, it requires that the affidavit be “‘truthful’ in the sense

that the information put forth is believed or appropriately accepted by the affiant as

true.” Id. The defendant bears the burden of establishing allegations of falsehood

by a preponderance of the evidence. Id. Upon meeting that burden, the falsehoods

in the affidavits will be set aside, and if the remaining content of the affidavit fails



                                          10
to establish probable cause, the search warrant must be voided and the fruits of the

search must be excluded. Id.

      Arguments challenging the sufficiency of warrant affidavits may be waived

if not properly preserved. TEX. R. APP. P. 33.1; see e.g., Broxton v. State, 909

S.W.2d 912, 918 (Tex. Crim. App. 1995) (explaining that “even constitutional

errors may be waived”); Jones, 338 S.W.3d at 735 (“double hearsay” argument

challenging the reliability or credibility of informant subject to waiver).

Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that an argument

is not preserved for appellate review unless it was made to the trial court “by a

timely request, objection, or motion” that “stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make

the trial court aware of the complaint, unless the specific grounds were apparent

from the context.” TEX. R. APP. P. 33.1(a); Resendez v. State, 306 S.W.3d 308, 312

(Tex. Crim. App. 2009). Additionally, an appellant’s arguments on appeal must

comport with his arguments before the trial court. Bekendam v. State, 441 S.W.3d

295, 300 (Tex. Crim. App. 2014).

C.    Analysis

      Skinner contends that the trial court erred in denying his motion to suppress

because the warrant affidavit contained a material misstatement or omission made

with reckless disregard for the truth. Particularly, Skinner argues that McCord



                                         11
made a material misstatement or omission in stating that she “checked” the

informant for narcotics before executing the controlled buy.

      In the warrant affidavit, Officer McCord averred that she “did not find any

illegal narcotics and money after checking the confidential informant during the

meeting and before and after the investigation.” However, the affidavit does not

elaborate on how Officer McCord “checked” the informant for narcotics and

money.    Officer McCord offered testimony clarifying that she “checked” the

informant by conducting a pat-down of the informant’s outer clothing and turning

out the informant’s pockets.       In response to questioning by defense counsel,

Officer McCord conceded that a pat-down of outer clothing may not reveal the

presence of a small plastic bag:

      Counsel:     And of course, if you were patting somebody down and
                   they had a small plastic baggie with meth in it, that’s not
                   something that you will really feel in a pat-down, is it?

      McCord:      Possibly.

      Counsel:     Sure, possibly. But not likely, right?

      McCord:      Depends.

Based on this testimony, Skinner argues that Officer McCord intentionally, or with

reckless disregard for the truth, misstated or omitted material information

regarding the effectiveness of her search before and after the controlled buy.

Insofar as the controlled buy was the only fact providing support for issuance of



                                          12
the warrant, Skinner argues that such intentional misstatements or omissions

invalidate the warrant and demand suppression of evidence seized pursuant to the

warrant.

      Upon review of the record, we conclude that Skinner’s argument on appeal

does not comport with his arguments before the trial court. In his written motion,

Skinner argued that the affidavit was fatally deficient because it contained

discrepancies suggesting that the controlled buy never actually occurred or that the

officers falsely averred that they maintained surveillance throughout the controlled

buy. At the Franks hearing, defense counsel argued that the affidavit was fatally

deficient because (1) it failed to state that the officers observed the informant

actually entering the front door of 4810 Hazard; (2) it stated that officers followed

informant to the residence despite the offense report stating that the informant was

driven by Officer McCord to the residence; and (3) use of the term “residence” was

intentionally vague and open to interpretation. There is no indication in the record

that Skinner complained to the trial court about Officer McCord’s statement that

she “checked” the informant.        Though counsel developed some testimony

regarding Officer McCord’s use of the word “checked,” this alone does not

preserve error. Pabst v. State, 466 S.W.3d 902, 907 (Tex. App.—Houston [14th

Dist.] 2015, no pet.) (though appellant developed testimony on an issue raised on

appeal, by not including that theory in written motions or arguments to trial court,



                                         13
appellant failed to preserve issue). The argument was not presented to the trial

court despite the trial court’s admonition to defense counsel that “[i]f you’re going

to argue, then be sure you cover that portion of the evidence during this hearing

regarding exactly what is the other misrepresentation or recklessness or falsity of

statements.”

      We conclude that Skinner did not preserve error as to his complaint that the

warrant is invalid because the affidavit included material misstatements or

omissions made in reckless disregard for the truth by stating that the officer

“checked” the informant before and after the controlled buy.

      We overrule Skinner’s second issue.

               Motion to Disclose Identity of Confidential Informant

      Skinner argues in his third issue that the trial court erred in denying his

motion to disclose the identity of Officer McCord’s confidential informant.

A.    Standard of Review

      We review a trial court’s denial of a motion to disclose the identity of a

confidential informant under an abuse of discretion standard. Blake v. State, 125

S.W.3d 717, 728 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Taylor v.

State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980)). A trial court does not abuse

its discretion unless its decision “was so clearly wrong as to lie outside that zone




                                         14
within which reasonable persons might disagree.” Id. (citing Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).

B.    Applicable Law

      The State has a privilege to refuse to disclose the identity of an informant

that has assisted in an investigation. TEX. R. EVID. 508(a).     However, there are

exceptions to this privilege. TEX. R. EVID. 508(c). First, the State may not refuse

to disclose the identity of an informant in a criminal case when the trial court

determines there is a “reasonable probability” that the informant “may be able to

give testimony necessary to a fair determination . . . on guilt or innocence . . . .”

TEX. R. EVID. 508(c)(2).

      To obtain disclosure under Rule 508(c)(2), a defendant bears the burden of

showing that the informant may be able to give testimony relevant to the

determination of guilt or innocence. See Sanchez v. State, 98 S.W.3d 349, 355–56

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Bodin v. State, 807

S.W.2d 313, 318 (Tex. Crim. App. 1991)). To meet this burden, “the defendant

must present evidence, from any source, but cannot rely on mere speculation or

conjecture.” Id. (citing Bodin, 807 S.W.2d at 318). The defendant may not

actually know the nature of the informant’s testimony; therefore, “the defendant

need make only a plausible showing of how the informant’s testimony may be

important, i.e., how that testimony could be necessary to a fair determination of



                                         15
guilt or innocence.”    Id. at 355–56.    The defendant must still show that the

informant’s potential testimony would significantly aid him. Id. at 356 (citing

Bodin, 807 S.W.2d at 318).        For example, “[w]henever it is shown that an

informant was an eyewitness to an alleged offense[,] then certainly that informant

can in fact give testimony ‘necessary to a fair determination of the issues of guilt,

innocence.’” Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991).

      Additionally, the State may not refuse to disclose an informant’s identity if

“information from an informer is relied upon to establish the legality of the means

by which evidence was obtained” and “the court is not satisfied that the

information was received from an informer reasonably believed to be reliable or

credible.” TEX. R. EVID. 508(c)(3). In applying Texas Rule of Evidence 508(c)(3),

“[t]he test is whether the judge is satisfied that the informant was reasonably

believed to be reliable or credible.” Blake, 125 S.W.3d at 728 (citing Thompson v.

State, 741 S.W.2d 229, 231 (Tex. App.—Fort Worth 1987, pet. ref’d)).

C.    Analysis

      Skinner maintains that the trial court erred in refusing to require the State to

disclose the informant’s identity. Skinner argued that disclosure was appropriate

because the informant was believed to have information necessary to a fair

determination of guilt or innocence and because the informant’s information was

not reasonably believed to be reliable or credible. The trial court required the State



                                         16
to produce its informant for an in camera hearing and, following that hearing,

denied Skinner’s motion.

      Upon reviewing the record—including the sealed transcript from the in

camera hearing—we conclude that the trial court did not abuse its discretion in

denying Skinner’s motion to disclose the informant’s identity. The informant

made a controlled buy from Skinner within 48 hours before the execution of the

search warrant.    Information from the controlled buy was used to establish

probable cause for a warrant, but Skinner was not charged for possession of the

substance he sold to the informant and thus, the informant was not an eye witness

to the charged offense.     Rather, Skinner was charged with possession of a

controlled substance with intent to deliver after police executed the search warrant

on August 5, 2011, and found Skinner in possession of controlled substances.

Accordingly, there is nothing to indicate that the informant would be able to offer

testimony concerning whether Skinner exercised care, control, or custody over the

controlled substances discovered on August 5, 2011. For this reason, we conclude

that the trial court’s decision was not outside of the zone of reasonable

disagreement. See Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref’d) (not error to refuse to disclose informant’s identity under

Rule 508(c)(2) where informant conducted a controlled buy at appellant’s

residence, the controlled buy was only used to support probable cause for search



                                        17
warrant, and appellant was charged with possession of controlled substance with

intent to deliver only after execution of search warrant at appellant’s residence

resulted in finding controlled substance); Daniels v. State, 25 S.W.3d 893, 898

(Tex. App.—Houston [1st Dist.] 2000, no pet.) (not error to refuse to disclose

informant’s identity where informant’s alleged knowledge of appellant selling

drugs out of her house at one time did not bear on her guilt or innocence for

offense charged after officers later executed a search at her home and discovered a

quantity of marijuana).

      Similarly, we conclude that the trial court did not abuse its discretion in

impliedly finding that the informant’s information could be reasonably believed to

be reliable or credible. In the warrant affidavit, Officer McCord averred that she

“worked with the confidential informant on previous occasions and the information

provided by this confidential informant has proven to be true and correct and the

information has led to felony arrests.” Nothing in Officer McCord’s testimony

suggests that she did not find the informant to be reliable or credible at the time she

prepared and submitted her affidavit. As the sole judge of witness credibility, the

trial judge was entitled to credit Officer McCord’s testimony and was not required

to order disclosure of the informant’s identity. See Blake, 125 S.W.3d at 728.

Accordingly, we conclude that the trial court did not abuse its discretion in

refusing to order disclosure of the informant’s identify under Rule 508(c)(3). See



                                          18
Blake, 125 S.W.3d at 728 (upholding trial court’s refusal to require disclosure of

informant’s identity where nothing in record indicated that, when preparing and

submitting affidavit, affiant did not find informant to be reliable or credible).

      We overrule Skinner’s third issue.

                                     Conclusion

      We affirm the trial court’s judgment.




                                                Rebeca Huddle
                                                Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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