                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-05-477-CR


THE STATE OF TEXAS                                                       APPELLANT

                                            V.

ROBERT LEAHY POW ELL                                                      APPELLEE

                                        ------------

      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                 MEMORANDUM OPINION 1 ON REMAND

                                        ------------

      The State appealed from the trial court’s grant of Appellee Robert Leahy

Powell’s motion to suppress. In four points, the State argued that the trial court

erred by granting the motion because (1) the detective’s affidavit set forth sufficient

circumstances from which the magistrate could find probable cause to issue the

search warrant; (2) the trial court failed to give great deference to the magistrate’s

determination of probable cause; (3) the police officers did not exceed the scope of

the search warrant; and (4) the police officers were not required to obtain an


      1
           See Tex. R. App. P. 47.4.
additional search warrant before opening the two safes that they seized from the

premises to be searched, took with them to the police station, and opened the

following day.

      On original submission, this court held that the police officers exceeded the

scope of the search warrant authorizing the seizure of a single, undescribed safe by

instead seizing two safes, one of which was not authorized by the warrant. 2 This

court concluded that because of the vagueness of the description of the safes in the

warrant, making it impossible to tell which safe was not authorized by the warrant,

and also because the record was silent regarding where the police found one of the

safes, the State failed to show that the safe containing methamphetamine was

properly seized on property described by the warrant rather than on property not

described by the warrant. 3 The trial court stated that its determination was based on

credibility as well as on the law.       W e therefore deferred to the trial court’s

determination of credibility and of the facts and held that the trial court did not err by

granting Powell’s motion to suppress, overruling the State’s third and fourth points. 4

      On the State’s petition for discretionary review, the Texas Court of Criminal

Appeals stated in Powell II,




      2
       State v. Powell, 268 S.W .3d 626, 630–32 (Tex. App.—Fort W orth 2008)
(Powell I), rev’d, 306 S.W .3d 761 (Tex. Crim. App. 2010) (Powell II).
      3
           Id.
      4
           Id. at 630–34.

                                            2
      [W ]e do not agree with the court of appeals’ decision and the State’s
      concession that the safe that Lowery bought at a Home Depot with a
      forged check was not particularly described in the warrant as property
      to be seized. . . . The safe that Lowery bought at a Home Depot with
      a forged check was “property described in the affidavit.” The police,
      therefore, could have seized the two safes they found in the home
      because they could have reasonably believed that one of the safes was
      the one that Lowery bought at a Home Depot with a forged check and
      that Lowery said was in the home. This decision on this question of law
      as to what items the search warrant authorized to be seized does not
      have the effect of converting the search in this case into a general
      search and it does not have the effect of authorizing the seizure of one
      thing under a warrant describing another. 5

      The Texas Court of Criminal Appeals also held,

      the methamphetamine was not obtained because the police may have
      unlawfully seized the safes but “because of a subsequent search
      pursuant to a lawful warrant.” W e, therefore, decide that the “massive”
      remedy of exclusion of the methamphetamine is not required in this
      case. W e believe that . . . any remedy that appellee might have is . . .
      a civil suit for damages for his alleged unlawfully seized safes. 6

      The Texas Court of Criminal Appeals has remanded this cause to this court

for further proceedings not inconsistent with its opinion. 7 The only remaining points

are whether (1) the detective’s affidavit set forth sufficient circumstances from which

the magistrate could find probable cause to issue the search warrant and (2) the trial

court failed to give great deference to the magistrate’s determination of probable

cause regard the validity of the warrant. Because the Texas Court of Criminal

Appeals has already held that “the methamphetamine was . . . obtained . . . pursuant


      5
           Powell II, 306 S.W .3d at 768–69 (citations omitted).
      6
           Id. at 771 (citation omitted).
      7
           Id.

                                             3
to a lawful warrant,” 8 we are bound to hold that the affidavit supporting the warrant

was necessarily sufficient and, likewise, that the trial court erred by not showing

great deference to the magistrate’s determination that probable cause supported the

warrant. Accordingly, we must sustain the State’s remaining points.

      Because the Texas Court of Criminal Appeals sustained the State’s third and

fourth points, expressly holding the warrant lawful, and this court, in turn,

necessarily sustained the State’s remaining two points, we reverse the trial court’s

order granting Powell’s motion to suppress and remand this case to the trial court

for further proceedings.




                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: DAUPHINOT, W ALKER, and GABRIEL, JJ.

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

DELIVERED: August 19, 2010




      8
           Id. (emphasis added; internal quotations omitted).

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