Opinion issued October 14, 2004
In The
Court of Appeals
For The
First District of Texas
NOS. 01-03-01092-CR
01-03-01093-CR
JOEL COOPER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause Nos. 909324 & 939186
MEMORANDUM OPINION
Appellant was charged in two cases with aggravated sexual assault of a child. A jury found him guilty in both cases and assessed punishment at 99-years’ confinement on the first charge and confinement for life on the second charge. In his sole point of error, appellant contends the trial court erred by refusing to grant him an evidentiary hearing, as required by Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).
DENIAL OF FRANKS HEARING
A “Franks hearing” is required when a defendant attacks an affidavit used to support a warrant. Franks, 438 U.S. at 155-56, 98 S. Ct. 2674. When a defendant makes a substantial preliminary showing that a false statement was knowingly and intentionally, or with reckless disregard for the truth, included 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. Id., see also Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). Appellant contends that he was improperly denied the right to such a hearing. We disagree.
1. Background
The record shows that appellant filed a motion to suppress, in which he requested the “opportunity to make a substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, was included in the warrant affidavit . . .” Specifically, appellant argued that the affiant, A. Craft of the Baytown Police Department, made a misstatement in the affidavit when he alleged that a witness, Heather Lane, told him that she, appellant, and an underage female had videotaped themselves engaging in sexual activity and had viewed the videotaped at appellant’s home on several occasions.
At the hearing on the motion to suppress, Craft testified that he had corroborated the information that Heather Lane gave him about watching videos at appellant’s home before using it in his affidavit. The defense then called Heather Lane, who testified that she never told Craft that she watched video tapes containing sexual acts while at appellant’s home.
At the conclusion of the hearing, the trial court ruled as follows: “The court finds that the Defendant did not make a substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for truth was included by the affiant in the warrant affidavit. And that the false statement was necessary in the defining of probable cause. For that reason, the court overrules your motion to suppress . . . .”
2. Law and Analysis
On appeal, appellant contends that he was denied the right to a Franks hearing. We disagree. In Cates, 120 S.W.3d at 354-55, the defendant filed a motion to suppress, alleging that the affiant had included false allegations about the description of the confidential informant in the affidavit. The trial court allowed the affiant to testify about the events that led to the drafting of the warrant, but refused to permit the defense to call the defendant to the stand to challenge the veracity of the information in the affidavit. Id. at 354-55. The court, citing Ramsey v. State, 579 S.W.2d 920, 922-23 (Tex. Crim. App. 1979), stated that for a defendant to be entitled to an evidentiary hearing, he must
(1) Allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically point out the portion of the affidavit claimed to be false;
(2) Accompany these allegation with an offer of proof stating the supporting reasons; and,
(3) Show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant.
Cates, 120 S.W.3d at 356. After concluding that the defendant’s motion in Cates met all three requirements, the court held that the trial court had erred by refusing to allow the defendant the opportunity to call any witnesses to prove his Franks claim. Id. at 359. The court noted that, in a motion to suppress hearing challenging probable cause, the court is bound by the “four corners” of the affidavit; whereas in a Franks hearing challenging the veracity of a warrant affidavit, the court can consider evidence outside the “four corners” of the warrant. Id. at 355 n.3.
In this case, the trial court permitted appellant to call Heather Lane to the stand to challenge the veracity of Craft’s warrant affidavit. As such, despite his claim to the contrary, appellant was given a Franks hearing. The trial court did not deny appellant a Franks hearing; it denied appellant relief after the Franks hearing. Put another way, after hearing the testimony by Heather Lane that conflicted with Craft’s affidavit, the trial court decided to believe Craft and not Lane. The Cates opinion specifically mentioned the trial court’s right to disbelieve the evidence offered by the defense at a Franks hearing. 120 S.W.3d at 358 (“That is not to say, of course, that the trial judge would necessarily believe [the evidence that the defendant wished to offer at a Franks hearing.]”).
Appellant, in this case, was permitted a Franks hearing, at which he failed to persuade the trial judge that Craft had included a false statement in the warrant affidavit. The trial court’s ruling on this issue was not an abuse of discretion. See Washington v. State, 902 S.W.2d 649, 655 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (holding that fact questions are properly resolved by the trial court when ruling in a Franks hearing).
Furthermore, we note that, even though the trial court gave appellant a Franks hearing in this case, it would not have been an abuse of discretion had the judge chosen to deny appellant the right to a Franks hearing. As stated earlier, to be entitled to a Franks hearing, a defendant’s motion to suppress must (1) allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false; (2) accompany these allegations with an offer of proof stating the supporting reasons; and (3) show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant. Ramsey, 579 S.W.2d at 922-23. Appellant’s motion does not address the third prong of Ramsey by alleging that, if the statements regarding whether or not Heather Lane watched video tapes of appellant engaged in sexual activity with children were excised from the affidavit, the remaining portions of the affidavit would not provide probable cause to believe that child pornography was present at appellant’s house. Instead, the remaining portions of the affidavit include a statement by a 16-year-old girl that, while at appellant’s house, she had watched a videotape of Heather Lane and a 13-year-old girl having oral sex.
3. Conclusion
Because appellant’s motion to suppress does not address the third prong of Ramsey, the trial court could have denied appellant the right to present evidence at a Franks hearing. See Brooks v. State, 642 S.W.2d 791, 796 (Tex. Crim. App. 1982) (holding that there was no error in denying defendant right to subpoena police records, where, under Franks, defendant had established no right to hearing, even though he had been given one).
Accordingly, we overrule appellant’s sole point of error.
We affirm the judgments.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Alcala.
Do not publish. Tex. R. App. 47.2(b).