MEMORANDUM OPINION
Nos. 04-06-00630-CR, 04-06-00631-CR, 04-06-00632-CR,
04-06-00633-CR, 04-06-00634-CR, 04-06-00635-CR
Melchor HAWKINS, Jr., Appellantv.
The STATE of Texas, Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court Nos. 06-01-11867-CR through 06-01-011872-CR
Honorable Ricardo H. Garcia, Judge PresidingOpinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: September 19, 2007
AFFIRMED
In two issues, Melchor Hawkins, Jr., appeals his convictions for aggravated sexual assault (four counts), sexual performance by a child, and possession of child pornography. We affirm the judgments of the trial court.
Background
In the fall of 2005, the complainant, "Jane Doe," (1) was 12 years old when she began taking karate lessons from Hawkins at his karate studio in Orange Grove, Texas. On December 20, 2005, Jane's mother dropped her and her brother off at the karate studio 15 minutes early. That evening, Jane was taking a bath when she called her mother in and told her what had happened at karate class that day. Jane told her mother that Hawkins took her inside a room, kissed her, made her lie down on a mattress and put his penis next to her vagina. He made Jane put his penis in her mouth and also put his penis "up to her butt." Hawkins then showed Jane a book entitled "Sexual Poses" and asked her to pick out a position. Jane told her mother that she believed Hawkins had recorded the incident because there was a video recorder in the room, and Jane noticed that the recording light was flashing. Additionally, Hawkins had kissed Jane, and pulled her shirt up and her pants down, during a lesson on December 15, 2005. Jane's mother immediately called the Orange Grove Police Department; officers arrived at the family's home to take written statements from Jane and her mother. Jane's mother gathered the clothing Jane had worn that day to give the officers, but noticed her underwear was missing. Jane told her mother that Hawkins had told her to leave her underwear under the mattress in the room where he had assaulted her. Jane was then taken to the hospital for a physical examination.
The next morning, Texas Ranger Robert Garza obtained a search warrant for Hawkins' Orange Grove karate studio. The search warrant included a warrant for the arrest of Hawkins for the offense of aggravated sexual assault. Garza's affidavit set forth the following evidence as the subject of the search:
The victim's panties, described as grayish blue and with thin multi-colored pin stripes, suspect's red shirt, a red mattress with accompanying sheets and bedding, a camera and/or video camera along with any recorded media to include VHS tapes and/or digital video disks (DVD), computers and any computer peripherals, to include related computer components including computer tapes and records, magnetic tapes, disks, diskettes, floppy disks and the like, magazine or book with black and white drawings of sexual poses, forensic and trace evidence to include but not limited to, fingerprints, fibers, body fluids, hairs, blood, and semen.
The affidavit also recited at length the statements Jane and her mother gave to the Orange Grove Police Department. Upon searching the Orange Grove karate studio, at which Hawkins was not present, police seized a man's red shirt, a maroon mattress, a book entitled Sexual Positions, 45 VHS videotapes, and papers containing a roster of karate students; however, Jane's panties and a videotape of the alleged assault against her were not located. Ranger Garza then learned that Hawkins also maintained a second karate studio in Kingsville, Texas, which was also assumed to be his residence. Garza traveled to Kingsville to arrest Hawkins. When officers knocked on the door, Hawkins answered and was arrested outside the residence. Garza asked for consent to search the studio/residence, but Hawkins declined. Garza then observed a lit candle behind a wicker privacy screen at the entrance of the residence; he informed Garza that the candle would have to be extinguished before they took him away. Garza accompanied Hawkins inside to blow out the candle, and noticed several VHS tapes and a computer and related equipment. None of the items were seized at that time.
Thereafter, Garza obtained a second search warrant for Hawkins' studio/residence in Kingsville. Just like the first warrant, this warrant authorized Garza to search for "the victim's panties, . . . a camera and/or video camera along with any recorded media to include VHS tapes and/or digital video disks [sic] (DVD), computers and any computer peripherals to include related computer components . . . ." Garza's affidavit for the second search warrant was the same as the previous one, except for the addition of a paragraph detailing the search of the Orange Grove studio:
On the evening of 12-21-2005, affiant and Orange Grove Police executed a search and arrest warrant at the said suspected party's business. . . . Evidence was found . . . that corroborates the victim's written statement. . . . The victim's panties and the suspected party's video camera [were] not located. . . . The investigation later revealed that the suspected party was staying at his other place of business and/or residence in Kingsville. . . . The suspected party was arrested without incident at [the Kingsville studio/residence]. . . . The affiant was able to observe several VHS tapes and a computer and computer equipment and components at this same location.
On December 22, 2005, officers searched the Kingsville studio/residence pursuant to the second warrant and seized Jane's panties, a VHS tape depicting the sexual assaults upon her, a framed photograph of Jane, and a package of 15 photographs that included 8 photographs of Jane.
Hawkins filed a motion to suppress the evidence seized at his Kingsville studio/residence pursuant to the second warrant, which was denied by the trial court after a hearing. (2) Hawkins subsequently filed a motion to recuse the trial judge; the motion was heard by the Honorable Noé González and was also denied. On appeal, Hawkins complains of the denial of these two motions.
Motion to Suppress
Hawkins filed a motion to suppress, urging the court to suppress all evidence seized in the search of the Kingsville premises "without a valid warrant and without probable cause." Because the trial court's denial of the motion to suppress involved evidence seized pursuant to a search warrant, we apply a deferential standard of review, giving deference to the magistrate who reviewed the affidavit for the search warrant. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004) (holding that de novo standard articulated in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), applies when reviewing a warrantless search, while a deferential standard is used when reviewing a search pursuant to a warrant); Pool v. State, 157 S.W.3d 36, 40-41 (Tex. App.--Waco 2004, no pet.) (same). To determine whether the magistrate's decision to issue the search warrant was proper, the measure is the "totality of the circumstances." Johnson v. State, 803 S.W.2d 272, 288-89 (Tex. Crim. App. 1990), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n.6 (Tex. Crim. App. 1991). So long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the affidavit is sufficient. Illinois v. Gates, 462 U.S. 213, 236-37 (1983); Johnson, 803 S.W.2d at 289.
Hawkins contends the warrant issued to search the Kingsville premises was invalid because the underlying affidavit included observations Garza made while illegally inside the Kingsville studio/residence, and therefore was not based on probable cause. Because Garza's affidavit supporting the second search warrant is virtually identical to his affidavit for the first search warrant, of which Hawkins does not complain, we construe his complaint to be specific to this one additional sentence: "The affiant was able to observe several VHS tapes and a computer and computer equipment and components at this same location."
Assuming, without deciding, that Garza's entry of the Kingsville studio/residence was illegal, we must determine whether the inclusion in the affidavit of one sentence summarizing his observations rendered the resulting search warrant invalid. Castillo v. State, 818 S.W.2d 803, 805 (Tex. Crim. App. 1991), overruled on other grounds, Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005) (citing Brown v. State, 605 S.W.2d 572, 577 (Tex. Crim. App. 1980), for the holding that warrant issued on the basis of affidavit that included tainted information is nonetheless valid if warrant clearly could have been issued on the basis of untainted information in affidavit).
In determining the sufficiency of an affidavit for a search warrant, we are limited to the "four corners of an affidavit." Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992). Article 18.01(c) of the Code of Criminal Procedure provides that an affidavit supporting a search warrant must set forth sufficient facts to establish probable cause:
(1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. . . .
Tex. Code Crim. Proc. Ann. art 18.01(c) (Vernon 2005). Hawkins does not advance a complaint as to the first two elements; therefore, our discussion is limited to whether the affidavit set forth sufficient facts to establish probable cause that the items to be seized were located at the Kingsville premises. "Probable cause exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the property that is the object of the search probably is on the person or premises to be searched at the time the warrant issues." Hass v. State, 790 S.W.2d 609, 612 (Tex. Crim. App. 1990) (quoting Gish v. State, 606 S.W.2d 883, 886 (Tex. Crim. App. 1980)). The magistrate is allowed to draw reasonable inferences from the facts alleged. Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996); Wachter v. State, 961 S.W.2d 598, 600 (Tex. App.--San Antonio 1997, pet. ref'd).
The first search warrant authorized Garza to search for Jane's panties and a VHS tape of the alleged assault against her, among other items. Probable cause to search for these items was established by section 4 of Garza's affidavit, which detailed the statements Jane and her mother gave concerning the sexual assault. The section specifically stated that Jane believed Hawkins filmed the December 20, 2005 assault because "the camera was on and it had a red flashing light." Additionally, Jane stated that Hawkins told her to "leave her underwear under the mattress." Section 4 of the second probable cause affidavit used to secure a search warrant for the Kingsville studio/residence contained the same information as in section 4 of the first affidavit, namely that Hawkins had videotaped the incident and that Jane had left her underwear under the mattress. It further stated that the panties and video camera were not found at the Orange Grove studio. The second affidavit additionally recited that Hawkins was arrested at the Kingsville studio/residence, which was described as having a side entrance door with lettering reading "Master Hawkins Karate." After reviewing the affidavit for probable cause by evaluating the facts under the totality of the circumstances, and giving appropriate deference to the magistrate's decision, we conclude that even without the last sentence summarizing Garza's observations while inside the premises, the affidavit contains sufficient facts to conclude that it was more probable than not that Garza would uncover evidence of the assault against Jane on the Kingsville premises. Castillo, 818 S.W.2d at 805; Brown, 605 S.W.2d at 577. Given the nature of the offense, the items retrieved from the Orange Grove studio, and Hawkins' presence and arrest at the Kingsville studio/residence a day after the assault, the second affidavit was sufficient to show a probability that evidence of the crime would be found in the Kingsville studio/residence. Accordingly, the trial court did not err in denying the motion to suppress, and Hawkins' first issue is overruled.
Motion for Recusal
On June 2, 2006, Hawkins filed a motion to recuse the trial judge, contending that 1) the judge had a personal bias against him, and 2) the judge's adverse rulings on his motion for bond reduction and motion to suppress further showed the judge's bias against him. Four days later, the Honorable Noé González was appointed to hear Hawkins' motion to recuse. A hearing was held on the motion on June 8, 2006, and Judge González denied the motion that same day. On appeal, Hawkins argues that Judge González abused his discretion in failing to hold a hearing on the recusal motion as required by Rule 18a. See Tex. R. Civ. P. 18a. The record before us, however, clearly demonstrates that Judge González did hold a hearing on the motion to recuse on June 8, 2006. Hawkins himself testified at length at the hearing. Because Hawkins' only appellate complaint as to the motion to recuse was the alleged failure to hold a hearing, we need not address whether Judge González abused his discretion in denying the motion to recuse. The record clearly shows a hearing on the motion was held in accordance with Rule 18a; therefore, we overrule Hawkins' second issue. Based on the foregoing reasons, we affirm the trial court's judgments.
Phylis J. Speedlin, Justice
DO NOT PUBLISH
1. Prior to trial, the complainant executed a pseudonym form pursuant to article 57.02 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art 57.02 (Vernon 2006).
2. The signed order denying the motion to suppress is only included in the clerk's record for trial court cause number 06-01-11867-CR (appeal number 04-06-00630-CR); accordingly, we take judicial notice of the signed order in each of the other five causes.