                                                                            PD-1642-15
                            PD-1642-15                    COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                        Transmitted 12/18/2015 9:49:08 AM
                                                          Accepted 12/19/2015 10:04:39 AM
                                                                           ABEL ACOSTA
         IN THE COURT OF CRIMINAL APPEALS OF        TEXAS                          CLERK
                       AUSTIN, TEXAS

ALVIN VAN SPOTWOOD, III,
             APPELLANT

                                NO.                                   __
                                (COURT OF APPEALS NO. 11-14-00182-
                                CR; TRIAL COURT NO. 10745-D)
STATE OF TEXAS,
      APPELLEE
                  **************************************
                  PETITION FOR DISCRETIONARY REVIEW
                      FROM THE COURT OF APPEALS
                      ELEVENTH JUDICIAL DISTRICT
                            EASTLAND, TEXAS
                  **************************************
               CHIEF JUSTICE JIM R. WRIGHT, PRESIDING
      *********************************************************
       APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
       *********************************************************
                                      STAN BROWN
                                      P.O. BOX 3122
                                      ABILENE, TEXAS 79604
                                      325-677 -1851
                                      FAX 325-677-3107
                                      STATE BAR NO. 03145000
                                      EMAIL: mstrb@aol.com


                                      ATTORNEY FOR APPELLANT


        December 18, 2015
          IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                        AUSTIN, TEXAS


ALVIN VAN SPOTWOOD, III,
             APPELLANT

                                  NO.                                  __
                                  (COURT OF APPEALS NO. 11-14-00182-
                                  CR; TRIAL COURT NO. 10745-D)
STATE OF TEXAS,
      APPELLEE

              IDENTITY OF JUDGE, PARTIES, AND COUNSEL

    Hon. Thomas M. Wheeler        Stan Brown
    350th District Court          Appellant's Attorney/ Appeal
    Taylor County Courthouse      P.O. Box 3122
    Abilene, TX 79602             Abilene, TX 79604

    James Eidson                  Stuart Holden
    District Attorney             Appellant'S Attorney/Trial
    Taylor County Courthouse      P.O. Box 633
    Abilene, TX 79602             Ballinger, TX 76821

    Britt Lindsey                 Alvin Van Spotwood, III, Appellant
    Assistant District Attorney   5397 Questa
    Taylor County Plaza           Abilene, TX 79605
    Abilene, TX 79602




                                        II
                         TABLE OF CONTENTS

SUBJECT                                                            PAGE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL                                   ii

STATEMENT REGARDING ORAL ARGUMENT                                         v

STATEMENT OF THE CASE                                                     1

STATEMENT OF PROCEDURAL HISTORY                                           2

               QUESTION PRESENTED FOR REVIEW

      Did the Court of Appeals err by refusing to recognize the search
warrant in question was essentially an unauthorized evidentiary search
warrant that should not have been subjected to severability? (C.R. at 10-12,
18,43-44)(11 R.R. at 4-5, 11-12)(V R.R.)                                  3

PRAYER FOR RELIEF                                                        10

CERTIFICATE OF SERVICE                                                   10

CERTIFICATE OF COMPLIANCE                                                11




                                     III
                             INDEX OF AUTHORITIES

CASES
                                                        PAGE
Aday v. Superior Court of Alameda County, 55 Ca1.2d 789, 13 Cal.Rptr.
415,362 P.2d 47 (1961)                                             4

Carmen v. State, 358 S.W.3d 285 (Tex. App.-Houston [lSI Dist.] 2011, pet.
ref' d)                                                                7

Checo v. State, 402 S.W.3d 440 (Tex. App.-Houston [14th Dist.] 2013, no
pet.)                                                               6-7

Johnson v. United States, 333 U.S. 10 (1948)                           .5

Massey v. State, 933 S.W2d 141 (Tex. Crim. App. 1996)                  4

Riley v. California, 134 S.Ct. 2473 (2014)                           .5-6

State v. Duarte, 389 S.W.3d 349 (Tex. Crim. App. 2012)                 6

Thornton      V.   State, 145 S.W.3d 228 (Tex. Crim. App. 2004)      7-9

Walthall     V.   State, 594 S.W.2d 74 (Tex. Crim. App. 1980)          4

Wyatt   V.   State, 23 S.W.3d 18 (Tex. Crim. App. 2000)                5

CONSTITUTIONAL PROVISIONS & RULES                                 PAGE

U.S. CONST. amend. IV                                             passim

Tex. R. App. P. 9.4                                                   11

Tex. R. App. P. 66.3(c)                                                .3




                                           IV
               STATEMENT REGARDING ORAL ARGUMENT

         Appellant believes the QUESTION PRESENTED; the extent to which the

doctrine of severability can constitutionally be applied to the unauthorized portion

of a search warrant; is an issue that merits further clarification for the Bench and

Bar. Therefore, the usual give and take of oral argument would be useful for the

Court in determining the parameters of the doctrine of severability consistent with

fundamental constitutional principles.   Oral argument is essential in order to aid

this Court's decisional processes by providing a more in-depth exploration of that

Issue.




                                            v
           IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                         AUSTIN, TEXAS
ALVIN VAN SPOTWOOD, III,
              APPELLANT

                                    NO.                                            __
                                    (COURT OF APPEALS NO. 11-14-00182-
                                    CR; TRIAL COURT NO. 10745-D)
STATE OF TEXAS,
           APPELLEE
                   **************************************
                  PETITION FOR DISCRETIONARY REVIEW
                      FROM THE COURT OF APPEALS
                      ELEVENTH JUDICIAL DISTRICT
                          EASTLAND, TEXAS
                   **************************************
                          STATEMENT OF THE CASE

          On April 25, 2014, Appellant        pleaded guilty to the offense of

    possession of more than four grams and less than two hundred grams of

    cocaine in a drug free zone. (C.R. at 24). The plea bargain agreement was a

    sentence of between seven and ten years TDCJ-ID. (C.R. at 28). On June 5,

    2014, the trial court sentenced Appellant to eight years TDCJ-ID.     (C.R. at

    36). The Trial Court's Certification of Defendant's Right of Appeal was

    filed June 5,2014, and certified there were matters raised by written pretrial

    motion on which Appellant would have the right to appeal.        (C.R. at 32).

    Notice of Appeal was filed July 7, 2014.      (C.R. at 52).   Appellant seeks

    review of the decision of the Court of Appeals that affirmed the conviction.
              STATEMENT OF PROCEDURAL mSTORY

      Appellant presented one issue in his brief, and the Eastland Court of

Appeals affirmed. Spotwood v. State, __          S.W.3d            2015    WL

6681362 (Tex. App.-Eastland October 30, 2015)(Appendix). Appellant filed

a motion for rehearing November 16, 2015, which was denied without

written opinion December 3, 2015.           This petition is due to be filed by

January 4, 2016~ it is therefore timely filed.




                                        2
                  QUESTION PRESENTED FOR REVIEW

      Did the Court of Appeals err by refusing to recognize the search
warrant in question was essentially an unauthorized evidentiary search
warrant that should not have been subjected to severability? (C.R. at 10-12,
18, 43-44)(II R.R. at 4-5, 11-12)(V R.R.)

                                ARGUMENT

      The combined "fruit of the poisonous tree" doctrine, as well as the

law's limitations on evidentiary search warrants, merit review of the decision

below that upheld the severability of what was essentially an evidentiary

search warrant.     By its conclusion at page five of the Slip Opinion,

"Appellant requests that we impose an 'inextricably intertwined' standard to

tie the contents of the warrant together and invalidate the severance of the

warrant by the trial court. Appellant cites no case law to support his position,

and we have not found a case that applied the 'inextricably intertwined'

standard in this context. We decline to adopt such a standard. We will

analyze the issue in light of Walthall's      concerns and address whether

cocaine was a minor item listed in an otherwise 'essentially general' warrant.

See Walthall, 594 S.W.2d at 79;" the court below decided an important

question of state and federal law that conflicts with the applicable decisions

of this Court and the United States Supreme Court. Tex. R. App. P. 66.3(c).

       The trial court concluded it had the authority to hold part of the



                                       3
warrant valid and part of the warrant invalid, citing Massey v. State, 933

S.W2d 141,148 (Tex. Crim. App. 1996)' and Walthall v. State, 594 S.W.2d

74, 79 (Tex. Crim. App. 1980). (C.R. at 43-44).               Contrary to those cases,

however, the lawful and unlawful portions of the search warrant in question

were so "inextricably intertwined" as to be logically inseparable.                 And it

must be pointed out Walthall recognized when that occurs, the invalid

portions of the warrant should not be treated as severable:

        We are convinced that Aday v. Superior Court, supra,' states the
       proper rule. Accordingly, we hold that while the second, third, and
       fourth clauses of the search warrant in this case were
       constitutionally defective, the search for and seizure of the
       property described in the first clause were not rendered invalid by
       this defect. In so holding, we adopt the following cautionary
       language of the California Supreme Court:

              (W)e do not mean to suggest that invalid portions of a
               warrant will be treated as severable under all
               circumstances . We recognize the danger that warrants
               might be obtained which are essentially general in
               character but as to minor items meet the requirement of
               particularity, and the wholesale seizures might be made
               under them, in the expectation that the seizure would in
               any event be upheld as to the property specified. Such an
               abuse of the warrant procedure, of course, could not be
               tolerated." Aday v. Superior Court, supra, 55 Cal.2d at
               789, 13 Cal.Rptr. at 420, 362 P.2d at 52. Id. at 79.
               (Emphasis supplied).

, Massey is not relevant here as it held error had not been preserved: "In failing to
identify evidence that was seized pursuant to the complained of portion of the affidavit,
appellant has inadequately briefed this issue and therefore failed to preserve his claim for
review." Id. at 148.
2  Aday v. Superior Court of Alameda County, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d
47 (1961).


                                             4
          Certainly the "inextricably     intertwined"    language stems primarily

from Rule 403 jurisprudence.         See for example, Wyatt v. State, 23 S.W.3d

18, 26 (Tex. Crim. App. 2000):           "Any evidence presented by the State is

generally prejudicial to the defendant; however, because the two crimes here

were so intertwined, the evidence of one was necessarily probative of the

other. In light of these facts, we hold that the trial judge did not abuse his

discretion     in concluding    that the danger of unfair prejudice             did not

substantially outweigh the probative value of this evidence." That, however,

does not alter the fact it is a useful analogy when determining whether

lawful and unlawful portions of a search warrant can be properly severed in

order to uphold the remaining partial warrant?

          Riley v. California, 134 S.Ct. 2473, 2488-2489 (2014), illustrates the

right to be free from unreasonable searches and seizures is the very essence

of our Constitutional Democracy: "The United States asserts that a search of

all data stored on a cell phone is 'materially indistinguishable' from searches

of [common personal] physical items. That is like saying a ride on horseback

3    The late Justice Robert Jackson of the United States Supreme Court eloquently
expressed our core concern here more than sixty-five years ago: "The point of the Fourth
Amendment, which often is not grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those inferences be drawn by a neutral
and detached magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime." Johnson v. United Slates, 333 U.S. 10, 13
(1948).


                                            5
is materially indistinguishable from a flight to the moon. Both are ways of

getting from point A to point B, but little else justifies lumping them

together. Modern cell phones, as a category, implicate privacy concerns far

beyond those implicated by the search of a cigarette pack, a wallet, or a

purse. A conclusion that inspecting the contents of an arrestee's pockets

works no substantial additional intrusion on privacy beyond the arrest itself

may make sense as applied to physical items, but any extension of that

reasoning to digital data has to rest on its own bottom."

         Additional observations are appropriate.   See, State v. Duarte, 389

S.W.3d 349 (Tex. Crim. App. 2012): "A magistrate should not be a rubber

stamp. 'In order to ensure that such an abdication of the magistrate's duty

does not occur, courts must continue. to conscientiously            review the

sufficiency of affidavits on which warrants are issued.' II ld. at 354 (Citation

omitted). Ramos v. State, 934 S.W.2d 358 (Tex. Crim. App. 1996): "Invalid

portions of a warrant that is essentially general in character but as to minor

items meets the requirement of particularity are not severable under this

rule."    ld. at 364, FN 7.    Checo v. State, 402 S.W.3d 440 (Tex. App.-

Houston [l4th Dist.] 2013, no pet.): IIInboth the Walthall and Ramos cases,

the Court of Criminal Appeals cautioned that warrants essentially general in

nature-except     for minor items that meet the requirement of particularity-



                                        6
may not be severable into valid and invalid portions." Id. at 446.

       Bearing all the foregoing in mind, it is seen the core language of the

warrant in question       is "essentially       general in character   II   as the portion

pertaining to cocaine is "inextricably intertwined" with all the remainder of the

evidentiary   warrant Judge McCauliffe was not authorized to issue.                     The

warrant in question was surely not constitutionally subject to severability.

       The "fruit of the poisonous tree" doctrine should apply, as well. Law

enforcement should be reminded search warrant affidavits must be tailored

to the situation at hand. Law enforcement must also abide by the law that

prohibits certain magistrates from issuing evidentiary search warrants.              See

generally, Thornton v. State, 145 S.W.3d 228 (Tex. Crim. App. 2004t which

provides an apt and succinct explanation of the "fruit of the poisonous tree"

doctrine we believe should have prohibited the execution of the invalid

search warrant in question:

              "The United States Supreme Court's Fourth Amendment
       "fruit of the poisonous tree" exclusionary rule jurisprudence
       makes clear that not all evidence is "fruit of the poisonous tree"

4  Cf., Carmen v. Slate, 358 S.W.3d 285 (Tex. App.-Houston 1151 Dist.12011, pet. ref'd):
"Under the 'fruit of the poisonous tree' doctrine, evidence may not be used against a
criminal defendant if it was obtained by exploitation of an illegal search or seizure and
not by means sufficiently distinguishable to be purged of the primary taint. Wong Sun v.
United Slates, 371 U.S. 471,484,488,83            S.Ct. 407,417,9      L.Ed.2d 441 (1963);
Thornton v. State, 145 S.W.3d 228,232 (Tex.Crim.App.2004); see also TEX.CODE
CRIM. PROC. art. 38.23(a) (West 2005) ('No evidence obtained ... in violation of ... the
Constitution or laws of the United States of America, shall be admitted in evidence
against the accused on the trial of any criminal case.')." /d. at 293.


                                            7
simply "because it would not have come to light but for the
illegal actions of the police." See Wong Sun v. United States,
371 U.S. 471, 83 S.Ct. 407,417,9         L.Ed.2d 441 (1963). The
"more apt question" is "whether, granting establishment of the
primary illegality, the evidence ... has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint." See id. The
Supreme      Court    summarized      its Fourth     Amendment
exclusionary rule jurisprudence with respect to unlawful
searches/seizures in Murray v. United States, 487 U.S. 533,108
S.Ct. 2529,2533,101 L.Ed.2d 472 (1988):
     The exclusionary rule prohibits introduction into
     evidence of tangible materials seized during an
     unlawful search, [citation omitted], and of
     testimony concerning knowledge acquired during
     an unlawful search, [citation omitted]. Beyond that,
     the exclusionary rule also prohibits the introduction
     of derivative       evidence,  both tangible      and
     testimonial, that is the product of the primary
     evidence, or that is otherwise acquired as an
     indirect result of the unlawful search, up to the
     point at which the connection with the unlawful
     search becomes "so attenuated as to dissipate the
     taint," [citations omitted].

       This jurisprudence also recogmzes that "unbending
application of the exclusionary sanction to enforce ideals of
governmental rectitude would impede unacceptably the truth-
finding functions of judge and jury." See United States v. Leon,
468 U.S. 897, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984).
Because of its substantial interference with the criminal justice
system's truth-finding function, the application of the
exclusionary rule should be "restricted to those areas where its
remedial objectives [of deterring future unlawful police
conduct] are thought most efficaciously served." See Leon, 104
S.Ct. at 3412-13; New York v. Harris, 495 U.S. 14, 110 S.Ct.
1640, 1645, 109 L.Ed.2d 13 (1990) (Marshall, J., dissenting)
(because deterrence is a principal purpose of the exclusionary
rule, the attenuation analysis must be driven by an


                               8
      understanding of how extensive exclusion must be to deter
      Fourth Amendment violations)."

      In accordance with all the foregoing, review should be granted so this

Court can make plain to the Bench and Bar the constitutionally         proper

parameters of the doctrine of severability. Severability should not be used to

save a search warrant that is more than ninety per cent outside the

boundaries prescribed by law, and that alone necessitates review.




                                      9
                          PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays this Court grant discretionary review and oral argument and, after full

briefing on the merits, issue an opinion reversing and this conviction and

remanding this cause to the trial court.

                                           Respectfully submitted,
                                           lsi Stan Brown
                                           STAN BROWN
                                           P.O. BOX 3122
                                           ABILENE, TEXAS 79604
                                           325-677 -1851
                                           FAX 325-677-3107
                                           STATE BAR NO. 03145000
                                           EMAIL: mstrb@aol.com

                                           ATTORNEY FOR APPELLANT


                       CERTIFICATE OF SERVICE


       I hereby certify that on this      18th day of December, 2015, a true
and correct copy of the above and foregoing Petition for Discretionary
Review was emailed to Britt Lindsey, Appellate Section, Taylor County
District Attorney's Office, Taylor County Courthouse, Abilene, Texas
lindseyb@taylorcountytexas.org;      James Eidson, District Attorney, Taylor
County Courthouse, Abilene, Texas eidsonj@taylorcountyteas.org; and to
Ms.       Lisa      McMinn,         State     Prosecuting    Attorney,     at
information@spa.texas.gov .

                                           lSI Stan Brown
                                           STAN BROWN




                                       10
                  CERTIFICATE OF COMPLIANCE

      I hereby certify that according to my computer program used to
prepare the foregoing document, the word count, in accordance with Tex. R.
App. P. 9.4, is    1807 words; and further certify that the brief is in Times
14-point type, except for footnotes which are Times 12-point type.
                                       /S/ Stan Brown
                                       STAN BROWN




                                      II
APPENDIX
Opinion filed October 30, 2015




                                           In The


          eltbtutb ~ourt of apptaI~
                                  No. 11-14-00182-CR


                   ALVIN VAN SPOTWOOD, III, Appellant
                                              V.
                        THE STATE OF TEXAS, Appellee

                       On Appeal from the 3S0th District Court
                                Taylor County, Texas
                           Trial Court Cause No. l0745-D


                                        OPINION
         Alvin Van Spotwood, III entered an open plea of guilty to a second-degree
felony offense of possession of four or more grams but less than 200 grams of a
controlled substance, cocaine, in a drug-free zone. I             The State and Appellant
agreed, in a limited agreement, that Appellant's punishment would be capped at
imprisonment for ten years.         The trial court assessed Appellant's punishment at
confinement for eight years and sentenced him. Appellant asserts in a single issue
that the trial court improperly denied his motion to suppress. We affirm.

         'TEX. HEALTH & SAPETY CODE Al\'N. § 481.1IS(d)   (West 2010),   § 481.134(c)   (West Supp.
2014).
             I. Evidence Presented at the Hearing on the Motion to Suppress
        Scott Ferrell, a police officer with the Abilene Police Department, received
information from a confidential informant that Appellant had possession of cocaine
at Appellant's residence. Officer Ferrell prepared an affidavit to support an arrest
and search warrant. He alleged that Appellant possessed cocaine and other items
at Appellant's      residence.'      Mike McAuliffe, a justice of the peace, reviewed
Officer Ferrell's affidavit.        Justice of the Peace McAuliffe issued an arrest and
search warrant to search Appellant's residence.                The warrant provides in relevant
part:
               YOU ARE THEREFORE COMMANDED TO FORTHWITH
        SEARCH THE PLACE ABOVE NAMED AND DESCRIBED
        WHERE THE SAID CONTROLLED SUBSTANCE, TO WIT:
        Cocaine, and/or items that constitute evidence relating to the said
        offense, including items described in the attached affidavit, to include,
        correspondence, telephone bills, utility bills, utility company receipts,
        drug notes, drug ledgers, scales, packaging materials, price lists,
        customer names, address books, statements regarding the identity,
        location, types and amounts of assets in the United States, air bill
        package receipts, business records, cellular telephones, electronic data
        contained in cellular phones, pagers, caller ID devices, money orders,
        U.S. Currency and other financial instruments, safes and other locked
        containers, photographs, videotapes and negatives, which are alleged
        to be concealed, and if you find such controlled substances, and/or
        items that constitute evidence relating to said offense, or any portion
        thereof, you will seize the same and bring it before me at my office,
        situated in Abilene, Taylor County, Texas on the 11th day of
        December, 2012, A.D.
C emphasis added).       When police officers executed the search warrant, they found
cocaine, other contraband, and several items indicating ownership of narcotics.



        2The grand jury indicted Appellant for possession of more than four grams but less than 200
grams of a controlled substance, cocaine, within 1,000 feet of a school, the Kid's Corner Learning Center,
in Abilene. The grand jury also indicted Appellant for possession of more than four grams but less than
200 grams of a controlled substance, cocaine, with intent to deliver, within 1,000 feet of a school.
                                                    2
      Appellant moved, before trial, to suppress evidence seized under the search
warrant.   Appellant claimed that the warrant was an "evidentiary" search warrant
and had to be issued by a statutorily defined magistrate-not     a justice of the peace.
See TEX. CODECRIM.PROC.ANN.arts. 18.01(c), 18.02(10) (West 2015). The State
did not dispute that Justice of the Peace McAuliffe lacked the authority to issue
certain portions of the warrant and even characterized his doing so as an "error on
the part of the police."   Instead, the State argued that the cocaine and items that
demonstrated Appellant's    ownership of the cocaine should be admitted because
Justice of the Peace McAuliffe could issue a warrant for their seizure. See CRJM.
PROC.art. 18.02(a)(7).
      The trial court announced its decision in its findings of fact and conclusions
of law. In the findings, the trial court found that Justice of the Peace McAuliffe
was authorized, under Section 18.02(a) of the Texas Code of Criminal Procedure,
to sign the search warrant for the police to seize the cocaine. The trial court held
that the part of the search warrant that authorized the seizure of "cocaine" was
"valid." The trial court also held that the remainder of the warrant was invalid, and
it severed the "valid" part from the "invalid" part. The trial court then suppressed
the items seized under the "invalid" part of the warrant.
                                II. Standard of Review
      We review the trial court's decision on a motion to suppress evidence under
a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.
Crim. App. 2007) (citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App.
2005)); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing
Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)).                Appellate
courts should afford almost total deference to a trial court's determination of the
historical facts that the record supports, especially when the trial court's findings of
fact are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d

                                           3
at 88-89.    We review de novo the trial court's application of the law.          Id.;
Carmouche,      10 S.W.3d at 327; Davila v. State, 4 S.W.3d 844, 847-48 (Tex.
App.-Eastland     1999, no pet.). We review the evidence in the light most favorable
to the trial court's decision and will uphold that decision if it is reasonably
supported by the record. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.
2006); Carmouche, 10 S.W.3d at 327.
                                    III. Analysis
      Appellant contends that the trial court erred when it refused to suppress the
cocaine and other items seized under the search warrant.         Appellant contends
(1) that the core language of the warrant was general in character and (2) that the
"valid" description   of cocaine was "inextricably      intertwined"   with the core
language of the warrant.     He claims that the warrant was wholly evidentiary
because the "valid" portion of the warrant was "inextricably intertwined" with the
"invalid" portion. He thus argues that the trial court abused its discretion when it
ordered the "valid" portion of the warrant severed from the "invalid" portion.
      The Court of Criminal Appeals, in Walthall v. State, adopted a rule of
severability by which invalid portions of a warrant may be severed from the valid
portions. See Walthall v. State, 594 S.W.2d 74, 79 (Tex. Crim. App. [Panel Op.]
1980). However, the court cautioned that severability should not be used to allow
warrants that are "essentially general in character but as to minor items meet the
requirement of particularity."    Id. (emphasis added) (quoting Aday v. Superior
Court, 362 P.2d 47, 52 (Cal. 1961)).       Consequently, with the exclusion of an
essentially general warrant, the appropriate remedy when presented with a partially
invalid warrant "is not to suppress the fruits of the entire warrant but to strike the
offending clauses and exclude evidence that does not fit within the warrant as
modified."   Ramos v. State, 934 S.W.2d 358, 363 & n.7 (Tex. Crim. App. 1996)
(citing Walthall, 594 S.W.2d at 79).

                                          4
      Appellant requests that we impose an "inextricably intertwined" standard to
tie the contents of the warrant together and invalidate the severance of the warrant
by the trial court. Appellant cites no case law to support his position, and we have
not found a case that applied the "inextricably       intertwined"    standard in this
context. We decline to adopt such a standard. We will analyze the issue in light of
Walthall's concerns and address whether cocaine was a minor item listed in an
otherwise "essentially general" warrant.       See Walthall, 594 S.W.2d at 79.      In
Officer Ferrell's affidavit, he alleged that Appellant "did then and there unlawfully
possess and does at this time unlawfully possess a substance prohibited by the
Health and Safety Code of the State of Texas, To-Wit: Cocaine."          The affidavit
alleged no other offense.   Under such circumstances, cocaine-the        possession of
which was the linchpin of Officer Ferrell's affidavit-cannot         be described as a
"minor item." See Id ; Checo v. State, 402 S.W.3d 440, 446 (Tex. App.-Houston
[14th Dist.] 2013, pet. ref'd.),   Consequently, the trial court did not abuse its
discretion   when it severed the warrant into two parts and found that the
authorization of the seizure of cocaine was valid, while the remainder of the
warrant was invalid. See Ramos, 934 S.W.2d at 363--64; Walthall, 594 S.W.2d at
79; Checo, 402 S.W.3d at 446. We overrule Appellant's sole issue.
                              IV. This Court's Ruling
       We affirm the judgment of the trial court.




                                                     MIKE WILLSON
October 30, 2015                                     JUSTICE
Publish. See TEX.R. ApP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

                                           5
                               11TH   COURT OF APPEALS
                                   EASTLAND, TEXAS
                                      JUDGMENT


Alvin Van Spotwood, III,                        * From  the 350th District
                                                  Court of Taylor County,
                                                  Trial Court No. 10745-D.

Vs. No. 11-14-00182-CR                          * October   30,2015

The State of Texas,                             * Opinion  by Willson, J.
                                                  (Panel consists of: Wright, C.J.,
                                                  Willson, J., and Bailey, J.)

      This court has inspected the record in this cause and concludes that
there is no error in the judgment below.     Therefore, in accordance with this
court's opinion, the judgment of the trial court is in all things affirmed.
