             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-19-00021-CR
      ___________________________

   EDWARD G. MCBROWN, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from County Criminal Court No. 9
           Tarrant County, Texas
         Trial Court No. 1553701


 Before Sudderth, C.J.; Gabriel and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                   I. Introduction

      Appellant Edward G. McBrown was charged with possession of marijuana in a

usable amount of two ounces or less.           See Tex. Health & Safety Code Ann.

§ 481.121(b)(1). Appellant filed a motion to suppress evidence obtained during the

search incident to his arrest. The trial court denied the motion. Appellant then

pleaded guilty, and the trial court sentenced him to two days’ incarceration in the

Tarrant County Jail. The trial court also certified Appellant’s right to appeal the

suppression ruling.

      The evidence that Appellant sought to suppress was discovered during a search

incident to his arrest, which occured pursuant to a capias warrant issued as a result of

his failure to pay a judgment assessing a fine for a traffic violation. Appellant argues

that the trial court erred by finding that the warrant was supported by probable cause

because the warrant’s statements are conclusory and because no affidavit was

presented showing the basis for its issuance. In three issues, Appellant argues that the

trial court’s failure to suppress the evidence discovered during the search violated his

rights under the Fourth and Fourteenth Amendments to the United States

Constitution; article I, section 9 of the Texas constitution; and article 38.23 of the

Texas Code of Criminal Procedure. See U.S. Const. amends. IV, XIV; Tex. Const. art.

I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23. We disagree. The recitations of the

capias warrant adequately showed the basis for its issuance and thus established

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probable cause for Appellant’s arrest. Appellant made no other challenge to the

search. We affirm.

                               II. Factual background

       The sole witness at the hearing on the motion to suppress was the arresting

officer. The arresting officer stopped Appellant’s vehicle after he was alerted by a

narcotics officer who had witnessed Appellant commit a traffic violation. Appellant

was driving without a license. A computer check revealed five possible outstanding

traffic tickets.

       The arresting officer confirmed one of the warrants and placed Appellant

under arrest. The officer then conducted a search incident to the arrest and found in

Appellant’s pocket a baggie of what the officer believed to be marijuana.

       The warrant at issue, styled “CAPIAS WARRANT,” was introduced into

evidence without objection. The factual recitations of the warrant stated,

       GREETINGS: Whereas on 01/09/2014, before a judge of the
       Municipal Court of the City of Fort Worth, Texas, EDWARD G[.]
       MCBROWN, Defendant, . . . was convicted of the offense of §TC
       545.104 CHANGING LANES WITHOUT SIGNAL, a judgment
       was rendered by said court in favor of the state, against said Defendant
       for the sum of $318.50 and all costs of cause; and there is due and
       unpaid of said judgment the amount of $318.50, plus any collection fees
       authorized by law.

Appellant argued that the State had the obligation to produce both the warrant and

the affidavit underlying its issuance to establish probable cause for his arrest and that

not to suppress the evidence violated his rights under the Fourth and Fourteenth


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Amendments to the United States Constitution; article I, section 9 of the Texas

constitution; and article 38.23 of the Texas Code of Criminal Procedure.1

      The trial court overruled Appellant’s motion to suppress by noting,

      Okay. So on the challenge of the arrest for this capias, I’m gonna deny
      the motion to suppress[,] and I’ll make these observations. A capias
      warrant, unlike a standard probable cause warrant -- And I also
      recognize that a capias warrant, even though it seeks to define a class of
      warrants that are not the same as the type of warrants that police
      produce, it does have local customary interpretations that don’t really
      comport with the classic nature of what a capias warrant is. But this is
      more in the form of a court order.

             It’s -- I’ve heard no testimony to suggest that there’s anything
      incorrect about this being an accurate copy of the warrant issued in this
      matter. It does contain factual recitals. It states that there was a finding
      of guilty on a traffic violation that, whether this is a court cost[] or a fine,
      money was assessed and money was not paid. Therefore, a warrant was
      issued to enforce payment of money that had been assessed in a prior
      charge. So it would -- I doubt that there is an affidavit, just like the
      orders for arrest that I sign in this court on a regular basis for people
      failing to appear or after several attempts to contact, failing to pay
      money, or things of that nature.

             So, that being the case, the Court finds that this is an adequate
      summary of the reason why this warrant was issued. It is purportedly
      signed by a municipal judge of the City of Fort Worth. The Court will
      note in passing that the officer who testified in this case was also a Fort
      Worth Police sergeant. And on that basis, the Court will find that there
      was a legal authorization to take the defendant in[to] custody for failing
      to comply with his obligation to, in some manner, satisfy the outstanding
      balance he owed for the traffic offense that is stated in State’s Exhibit
      No. 1, which was the basis of this capias being entered. So that will be
      the judgment of the Court.


      1
       Appellant cites no distinctions in analysis between the United States
Constitution, the Texas constitution, or the Texas Code of Criminal Procedure.


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                               III. Standard of review

      We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to

a trial court’s rulings on questions of historical fact and application-of-law-to-fact

questions that turn on evaluating credibility and demeanor, but we review de novo

application-of-law-to-fact questions that do not turn on credibility and demeanor.

Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

                                  IV. Applicable law

      A municipal court may bring before it a defendant who has not paid a fine by

means of a capias pro fine. See Tex. Code Crim. Proc. Ann. art. 45.045(a) (“If the

defendant is not in custody when the judgment is rendered or if the defendant fails to

satisfy the judgment according to its terms, the court may order a capias pro fine, as

defined by [a]rticle 43.015, issued for the defendant’s arrest.”). Article 45.045 of the

code of criminal procedure further provides,

      The capias pro fine shall state the amount of the judgment and
      sentence[] and command the appropriate peace officer to bring the
      defendant before the court immediately or place the defendant in jail
      until the business day following the date of the defendant’s arrest if the
      defendant cannot be brought before the court immediately.

Id. Article 45.045 references the definition of a capias pro fine found in article 43.015,

which provides,

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       (2) “Capias pro fine” means a writ that is:

              (A) issued by a court having jurisdiction of a case after judgment
              and sentence for unpaid fines and costs; and

              (B) directed “To any peace officer of the State of Texas” and
              commanding the officer to arrest a person convicted of an offense
              and bring the arrested person before that court immediately.

Id. art. 43.015(2).

       Though the capias pro fine is issued after judgment, the Texas Court of

Criminal Appeals has held that it still must be supported by probable cause. Jones v.

State, 119 S.W.3d 766, 786 (Tex. Crim. App. 2003). In the context of a capias pro

fine, “a judgment for a traffic violation, together with a finding by the court that the

defendant has failed to satisfy its terms, will comprise sufficient probable cause to

support issuance of the capias pro fine.” Id. The question is how the existence of

probable cause to support the issuance of the capias must be established.2

       In Jones, the issuance of the capias pro fine was described by the testimony of a

municipal court judge who explained the procedures of his court and why he believed

that those procedures demonstrated the validity of the capias pro fine used as a basis

for the appellant’s arrest. Id. That testimony gave “an adequate determination that

there was a reason to believe the judgments had not been satisfied in appellant’s



       Appellant’s sole authority, Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App.
       2

1990), is inapposite because the chapter 45 warrant in that case was not an article
43.015(2) warrant.


                                            6
cases.” Id. Thus, the trial court did not abuse its discretion by finding that probable

cause existed to issue the warrant in the form of the capias. Id.

      The Waco Court of Appeals applied Jones to a situation in which a defendant

was arrested on the basis of a capias pro fine, but the judge signing the capias did not

testify about the probable cause supporting its issuance. See Howard v. State, No. 10-

06-00368-CR, 2007 WL 4260525, at *2 (Tex. App.—Waco 2007, pet. dism’d, untimely

filed) (mem. op., not designated for publication). Even without the testimony of the

municipal judge, the Howard court concluded that when the capias was admitted into

evidence by agreement, it provided probable cause for the arrest:

      Neither Howard nor the State offered any testimony or evidence at the
      suppression hearing[] but admitted the capias by agreement. The capias
      states that a judgment was entered before the municipal court against
      Howard for possession of drug paraphernalia, that Howard was ordered
      to pay a specific fine, and that the judgment [was] unsatisfied. No one
      appears to dispute these facts. Accordingly, the existence of a judgment,
      coupled with the municipal court’s finding that Howard had failed to
      comply with the judgment’s terms, establishes sufficient probable cause
      to support issuance of the capias pro fine. See Jones, 119 S.W.3d at 786;
      see also Tex. Code Crim. Proc. Ann. art. 45.045(a) (capias pro fine may be
      issued when “the defendant fails to satisfy the judgment according to its
      terms”).

Id.

                                      V. Analysis

      Here, the analysis offered by the trial court tracks that of the Texas Court of

Criminal Appeals and the Waco Court of Appeals by noting that the warrant at issue

is a different breed than those that are usually the basis for an arrest. The face of the


                                            7
warrant showed an adequate basis for its issuance. No one challenged that basis, and

the warrant was admitted without objection. Thus, the trial court properly recited on

the record the warrant’s facial recitations to determine that it was valid and that it

provided probable cause for Appellant’s arrest. See, e.g., Breazeale v. State, 683 S.W.2d

446, 450 (Tex. Crim. App. 1984) (noting that the presumption of regularity created by

recitals in a judgment can be overcome only when the record otherwise affirmatively

reflects error).

       Moreover, although the capias was not admitted by agreement, it was admitted

without objection. And here, as in Howard, no one disputed the capias’s recitations.

The capias recites that a judgment was rendered against Appellant and that Appellant

failed to satisfy the judgment. Thus, the unchallenged facial recitations established

that the capias was properly issued in accordance with article 45.045. See Tex. Code

Crim. Proc. Ann. art. 45.045(a). The trial court overruled Appellant’s motion to

suppress on a basis that almost precisely tracks the reasoning of Howard, with which

we agree. The trial court therefore acted within its discretion in making that decision.

Accordingly, we overrule Appellant’s three issues.




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                                  VI. Conclusion

      Having overruled Appellant’s three issues, we affirm the trial court’s judgment.



                                                     /s/ Dabney Bassel
                                                     Dabney Bassel
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 3, 2019




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