                          Fourth Court of Appeals
                                 San Antonio, Texas
                             MEMORANDUM OPINION

                                    No. 04-19-00039-CR

                                 Darrell Wayne MOFFETT,
                                          Appellant

                                              v.

                                   The STATE of Texas,
                                         Appellee

                  From the 198th Judicial District Court, Kerr County, Texas
                                   Trial Court No. B1779
                          Honorable Rex Emerson, Judge Presiding

                                    No. 04-19-00040-CR

                                   Teresa Jo BRUFFETT,
                                          Appellant

                                              v.

                                   The STATE of Texas,
                                         Appellee

                  From the 198th Judicial District Court, Kerr County, Texas
                                   Trial Court No. B1780
                          Honorable Rex Emerson, Judge Presiding

Opinion by:   Sandee Bryan Marion, Chief Justice

Sitting:      Sandee Bryan Marion, Chief Justice
              Rebeca C. Martinez, Justice
              Luz Elena D. Chapa, Justice

Delivered and Filed: September 4, 2019

AFFIRMED
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       Darrell Wayne Moffett and Teresa Jo Bruffett were both convicted of possession with

intent to deliver a controlled substance – methamphetamine. The same search warrant was used

to seize the evidence used against both of them. On appeal, they challenge the trial court’s denial

of their motions to suppress, asserting the affidavit in support of the search warrant contained

material omissions and did not establish probable cause. We affirm the trial court’s judgments.

                                           BACKGROUND

       On September 27, 2016, Officer Jeff Purvis with the Kerrville Police Department prepared

and signed an affidavit in support of a search warrant to search a house located at 2920 “A” Hunt

Street, Kerrville, Kerr County, Texas. The affidavit described the house as the “suspected place

and premise” and identified Bruffett, Danita Dee Horner, and other unknown persons as being in

control of the house. Officer Purvis attested to the following events in his affidavit presented to

the magistrate that are pertinent to this appeal:

           Within the last 72 hours, Affiant received information from a cooperating
       individual identified as Jessica Ray Bullard regarding drug sales to wit:
       methamphetamines and marijuana at suspected place and premise (2920 A Hunt
       Street, in Kerrville, Kerr County, TX). The CI had witnessed suspected parties,
       Teresa Jo Bruffett, Darrell (unknown), and Danita Dee Horner to be in possession
       of an unknown amount of methamphetamine at the suspected place and premise.
       The CI stated the CI had observed multiple small plastic baggies containing
       methamphetamine “ready to sale [sic]” next to a digital scale on a table in suspected
       place and premise. The CI stated the CI purchased a $20.00 dollar amount of
       methamphetamine from suspected party (Bruffett) at that time. The CI stated the
       CI observed another subject purchase a $20.00 dollar amount from suspected party
       at the same time. The CI stated suspected party’s boyfriend (Darrell) would also
       sell methamphetamine to the CI at the suspected place and premise. The CI stated
       the CI had been purchasing methamphetamine ($20.00 dollar amounts) at a time
       for the last 4 to 5 months from suspected party at suspected place and premise. The
       CI stated Danita Horner is selling marijuana and psilocybin “mushrooms” from
       suspected place and premise. The CI stated the CI had purchased mushrooms from
       Horner in the past at suspected place and premise.

           Affiant is familiar with suspected party and had information suspected party
       was involved in the sales of methamphetamine. Affiant had received information
       in the past from a credible and reliable person that had provided information that
       lead to prosecutable narcotic cases. The CI advised the same above mentioned


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       information regarding suspected party’s drug sales of methamphetamine at
       suspected place and premise.

       At the hearing on the motions to suppress, defense counsel, who represented both Moffett

and Bruffett, requested permission to question Officer Purvis on the basis that he omitted

information from the affidavit or misstated the truth. The trial court allowed the questioning.

       Officer Purvis admitted Bullard was an inmate at the Kerr County jail when she provided

the information set forth in the affidavit. With regard to whether Officer Purvis routinely

completed affidavits for search warrants solely based on information provided by inmates, Officer

Purvis responded that he did if he named the inmate in the affidavit. Officer Purvis further stated

he would need corroboration of the information only if he did not name the inmate. Although

Officer Purvis did not believe he needed to include the information regarding the credible and

reliable person he also referenced in the affidavit, he included the information because that person

previously lived at the residence; however, he noted in the affidavit that the information was

provided by the credible and reliable person “in the past.” Officer Purvis disagreed the information

was provided over a year before he prepared the affidavit but agreed it was several months earlier.

Officer Purvis identified the credible and reliable person as Chana Ramirez, and stated she was

working for the department when she lived at the residence.

       Defense counsel also introduced into evidence affidavits signed by Moffett and Bruffett.

The affidavits state Ramirez lived in their residence for two months before leaving on or about

July 2015. The affidavits also state Ramirez did not ‘set foot inside the residence” since that time.

       At the conclusion of the hearing, the trial court took the matter under advisement and

subsequently signed orders denying the motions to suppress. Moffett and Bruffett appeal.




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                STANDARD OF REVIEW AND PROBABLE CAUSE DETERMINATION

       Both the Texas and United States Constitutions require a search warrant to be based on

probable cause that evidence of an offense will be found through the execution of the search

warrant. Hyland v. State, 574 S.W.3d 904, 910 (Tex. Crim. App. 2019). “Probable cause exists

when reasonably trustworthy facts and circumstances within the knowledge of the officer on the

scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or

evidence pertaining to a crime will be found.” Id. (internal quotation omitted). “In determining

whether probable cause exists to support the issuance of a search warrant, the magistrate to whom

the probable cause affidavit is presented is confined to considering the four corners of the search

warrant affidavit, as well as to logical inferences the magistrate might draw based on the facts

contained in the affidavit.” Id. at 910-11. “The determination of whether probable cause exists is

a ‘totality of the circumstances’ inquiry, based on the magistrate’s reasonable reading of the

affidavit, but the magistrate may not act as a mere ‘rubber stamp.’” Id. at 911.

       “Generally, a reviewing court applies a presumption of validity regarding a magistrate’s

determination that a search warrant affidavit supports a finding of probable cause.” Id. As a result,

this court must ordinarily review the magistrate’s probable cause determination and decision to

issue the warrant with great deference. Id. And, we “must uphold the magistrate’s decision so

long as the magistrate had a substantial basis for his finding.” Id. (internal quotation omitted).

       “But the presumption of validity regarding the magistrate’s probable cause determination

may be overcome if the defendant can show the presence of false statements in the search warrant

affidavit that were either made deliberately or with reckless disregard for truth.” Id. Similarly,

this court has held the presumption of validity may also be overcome if the defendant can show

the presence of material omissions in the search warrant affidavit that were made intentionally or

with reckless disregard for the accuracy of the affidavit. Gonzales v. State, 481 S.W.3d 300, 311


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(Tex. App.—San Antonio 2015, no pet.). If the defendant meets this burden by showing material

omissions that were made intentionally or with reckless disregard, “the trial court [must] determine

whether, if the omitted material had been included in the affidavit, the affidavit would still establish

probable cause for the defendant’s arrest.” Id. “If, after including the omitted material, the

affidavit did not establish probable cause, then the search warrant would be voided and the fruits

of the search excluded.” Id. Under those circumstances, we would no longer defer to the

magistrate’s initial probable cause determination. Hyland, 574 S.W.3d at 911. Instead, the

question on appeal “becomes the same as it would be for the magistrate conducting an initial

review of a search warrant affidavit.” Id. Therefore, under those circumstances, we review the

search warrant affidavit with the omitted material to determine whether the affidavit established

probable cause under a totality-of-the circumstances approach. See id.

                                             DISCUSSION

       Both the appellants’ briefs and the State’s brief in these appeals focus on the Gonzales

standard for reviewing search warrant affidavits when a defendant alleges the affidavit contains

material omissions. The Gonzales analysis is not appropriate in this case, however, because of the

very fact repeatedly stressed by Officer Purvis in his testimony. That is, although Bullard was an

inmate and first-time informant, her name was included in the affidavit.                 Under those

circumstances, the Texas Court of Criminal Appeals has held that “‘when a probable cause

affidavit specifies a named informant as supplying the information upon which probable cause is

based, the affidavit is sufficient if it is sufficiently detailed to suggest direct knowledge on the

informant’s part.’” See State v. Elrod, 538 S.W.3d 551, 559 (Tex. Crim. App. 2017) (quoting

Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995)) (emphasis in original).

       In this case, the affidavit named Bullard as the informant and is sufficiently detailed to

suggest direct knowledge on Bullard’s part. See id. Bullard gave detailed information about the


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manner in which the methamphetamine was packaged for sale and who was involved in the sales.

Bullard further stated she had made purchases over a four to five month period. Thus, Bullard

“was a named informant who was an eyewitness to criminal activity in which she was involved,”

and the magistrate “was able to assess [Bullard’s] reliability based upon the details she provided.”

Id. at 558-59. “The magistrate, therefore, correctly determined that the facts [Bullard] gave

established a ‘fair probability’ that evidence of a particular crime would likely be found” at the

house listed in the affidavit. Id. at 560.

        We note our analysis would not change even if the appellants made a showing that Officer

Purvis omitted the fact that Bullard was an inmate with intentional or reckless disregard for the

accuracy of the affidavit. Once Bullard was named in the affidavit, the review shifted to whether

Bullard gave extensive and detailed information regarding an ongoing criminal activity that

showed she had personal and direct knowledge of the information she provided. Id. at 559.

Including the omitted fact that Bullard was an inmate in the affidavit does not change the analysis.

                                             CONCLUSION

        Because the affidavit in the instant case named Bullard as the informant and was

sufficiently detailed to show Bullard had direct knowledge of the matters she asserted, the

magistrate could reasonably conclude under the totality of the circumstances that there was a fair

probability that evidence of a crime would be found at the listed residence. Therefore, the trial

court did not err in denying the motions to suppress, and we affirm the trial court’s judgments.

                                                  Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH




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