In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00165-CR
______________________________
MILTON HEATH HILL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 20520
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Upon his plea of guilty, Milton Heath Hill was found guilty by the 336th Judicial District Court of Fannin County, Texas, of the first-degree felony of possession of more than four grams but less than 200 grams of methamphetamine with the intent to deliver and sentenced to fifteen years' imprisonment, from which he appeals.
Hill's sole point of error centers on the refusal of the trial court to suppress the evidence which was obtained as the result of a search after the issuance of a search warrant; in this challenge to that ruling, Hill maintains that fatal errors existed in identifying in the warrant the property to be searched and that no probable cause for the issuance of the warrant was demonstrated.
Appellate courts should afford almost total deference to a trial court's determination of the historical facts that the record supports. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The same level of deference should be afforded to a trial court's rulings by appellate courts on application of law to fact questions (to which reference is made as mixed questions of law and fact) if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor of witnesses. See id. Nevertheless, where the resolution thereof is not restricted to an evaluation of credibility and demeanor, de novo review of these mixed questions of law and fact may be applied. See id. Reversal by an appellate court of a trial court's decision is in order only for an abuse of discretion, which occurs when it appears the trial court applied the wrong legal standard or when no reasonable review of the record could support the trial court's conclusion under the correct law and the facts, viewed in the light most favorable to its legal conclusion. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Banda v. State, 890 S.W.2d 42, 49 (Tex. Crim. App. 1994).
Hill's complaints about the search warrant are twofold: (1) that the affiant fails to provide probable cause for the issuance of the search warrant which led to the search yielding the prohibited substances which provide the base for the prosecution and (2) that the warrant fails to accurately describe the premises to be searched.
An affidavit for a search warrant is sufficient to establish probable cause for the issuance of such a warrant if, taking in the totality of the circumstances as contained within the affidavit itself, the magistrate is provided with a substantial basis for concluding that probable cause for its issuance exists. Illinois v. Gates, 462 U.S. 213, 238 (1983).
As to the standard to be applied in reviewing affidavits for search warrants, the Texas Court of Criminal Appeals has recently reiterated that the appellate courts
should "not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Thus, even in close cases we give great deference to a magistrate's determination of probable cause to encourage police officers to use the warrant process rather than making a warrantless search and later attempting to justify their actions by invoking some exception to the warrant requirement.
Rodriguez v. State, No. PD-1013-06, 2007 Tex. Crim. App. LEXIS 624, at *6 (Tex. Crim. App. May 9, 2007) (footnotes and citations omitted).
We also fully recognize that affidavits for search warrants are normally drafted in the midst and haste of a criminal investigation, and adhere to the teachings of the United States Supreme Court in United States v. Ventresca, 380 U.S. 102 (1965), that they must be interpreted in a common sense and realistic fashion. Nonetheless, in our efforts to avoid technical and strict interpretation, we must be ever mindful that we stay within the boundaries of constitutional requirements. Ashmore v. State, 507 S.W.2d 221, 223 (Tex. Crim. App. 1974).
Therefore, we apply "great deference" to the magistrate's determination of probable cause in this case, as required by the law.
The magistrate may issue a search warrant if the facts contained in the four corners of the affidavit and the reasonable inferences drawn therefrom justify the conclusion that the object of the search is probably on the premises at the time of the warrant's issuance. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); State v. Delagarza, 158 S.W.3d 25, 26 (Tex. App.--Austin 2005, no pet.).
When a challenge is made as to whether a search warrant affidavit is legally sufficient to show probable cause, the trial court is limited to the "four corners" of the affidavit. Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003).
In Aguilar v. Texas, 378 U.S. 108 (1964), the United States Supreme Court held that an affidavit for a search warrant may be based upon hearsay information and need not reflect the direct personal observations of the affiant. However, if based upon hearsay, the issuing magistrate must (1) be informed of the underlying circumstances from which it can be determined that the affiant received his information in a "reliable" way, and the magistrate must also (2) be informed of specific factual allegations from which the affiant concluded the source was "credible" or his information "reliable." The above two requirements are commonly known as the "two-pronged test" of Aguilar. (1) The United States Supreme Court has subsequently relaxed the rigid standards in the Aguilar analysis to allow consideration of the "totality of the circumstances." See Gates, 462 U.S. at 230. Although the totality of the circumstances includes the two prongs of Aguilar, a deficiency in one of the two prongs of Aguilar may not be fatal if the totality of the circumstances indicates reliability. Id.
While probable cause may be based upon hearsay, the hearsay must be credited at each level in order to meet constitutional requirements. Hennessy v. State, 660 S.W.2d 87, 91 (Tex. Crim. App. 1983). Upon what facts may an issuing magistrate rest its determination that a third-party informant is credible or reliable? The magistrate may rely on the affidavit of a police officer based on his knowledge or the knowledge of other officers. Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990), overruled on other grounds by, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). In regard to informants who are not peace officers, it has been held sufficient if the informant was known to the affiant and had given him "reliable information twice in the past." Capistran v. State, 759 S.W.2d 121, 127 (Tex. Crim. App. [Panel Op.] 1982) (op. on reh'g). Statements that the informant had no criminal history and had a reputable job, with other indicia of reliability, have been deemed sufficient when there has been independent corroboration of some of the information furnished by the informant. Martin v. State, 67 S.W.3d 340, 344 (Tex. App.--Texarkana 2001, pet. ref'd). Information received from several unidentified different sources, followed by police observations of apparent drug deals taking place, have supplied the required credibility. Ashcraft v. State, 934 S.W.2d 727, 732 (Tex. App.--Corpus Christi 1996, pet. ref'd).
It is appropriate, then, to look at the affidavit about which Hill complains to determine if it provides, within its four corners, the required reliable facts upon which the magistrate could reasonably base a conclusion that probable cause existed. The portion of the affidavit for the search warrant leading to the search of Hill's residence (omitting the qualifications, background, and experience of the affiant police investigator) reads as follows:
On October 25th, 2001, AFFIANT met with a Confidential Informant (hereinafter "the CI") regarding the manufacture and distribution of Methamphetamine by HILL at the Suspect Location. The identity of the CI should be protected for the CI's personal safety and to protect the confidentiality and integrity of continuing investigations.
On the above noted date AFFIANT met with the CI regarding the CI's transfer of glassware, a precursor, and received a statement from CI detailing his use of methamphetamine with HILL on that same day. The CI advised AFFIANT that the CI had helped transport glassware and the precursor to the suspect Location within the past twenty-four (24) hours. The CI described the odor and appearance of the precursor with sufficient precision to allow it to be identified as anhydrous ammonia.
Even applying great deference to the ruling made by the trial court at the suppression hearing, when reading the four corners of the affidavit in a common sense and realistic manner, it fails to show any reason why the issuing magistrate could have a reason to believe that the confidential informant to whom the affiant made reference was to be afforded sufficient credibility in order to establish probable cause for the issuance of a search warrant.
The Texas Court of Criminal Appeals has said that,
[i]f the informant is unnamed, the minimal requirement is that the affidavit recite that the informant has no criminal record, and enjoys a good reputation among his associates and in the community. Compare Carvajal v. State, 529 S.W.2d 517 (Tex. Crim. App. 1975), with, Caldarera v. State, 504 S.W.2d 914 (Tex. Crim. App. 1974) (and cases there cited). This is true even though the informant has not given information before, because an affidavit in support of a warrant to search need not recite that the affiant's informant has given information in the past. See Barnes v. State, 504 S.W.2d 450, 454 (Tex. Crim. App. 1974).
Avery v. State, 545 S.W.2d 803, 804 (Tex. Crim. App. 1977).
There is nothing in the affidavit to reveal that this confidential informant had credibility (such as the provision by the confidential informant of previously credible information); there is nothing shown in the affidavit that the tip provided had been corroborated by independent information; the affiant failed to show that there was any attempt at all to provide any verification of the information provided by this confidential informant or of the informant's reliability or credibility; the affiant did not inform the magistrate that the informant's lack of a criminal record or other standing in the community would lend credence to the informant's reliability or veracity. In short, there is nothing to even suggest that the information was elicited from a credible person whose information could be presumed to be reliable.
Based on the foregoing and while giving great deference to the magistrate's determination, we conclude and hold that the facts asserted in the affidavit are insufficient under the totality of the circumstances to establish that probable cause existed for the issuance of an arrest and search warrant on Hill's residence. For this reason, we cannot conclude that the magistrate had a substantial basis for concluding that a search would uncover evidence of a crime. We hold that any ruling of the trial court at the suppression hearing that the totality of circumstances contained within the four corners of the affidavit supported the existence of probable cause, is erroneous. We, therefore, conclude that the trial court abused its discretion in failing to suppress the evidence obtained as a result of the search warrant under the analyses we are required to employ. We sustain Hill's point on appeal insofar as it challenges the admissibility of the evidence seized under a search warrant that lacked probable cause.
Because we have determined that the trial court should have granted Hill's motion to suppress due to the search warrant's lack of probable cause under the totality of the circumstances, we sustain Hill's point as it pertains to the evidence seized as a result of that search. Absent the evidence elicited as a result of that search, there would be insufficient evidence to sustain Hill's conviction.
We are directed by Rule 47.1 of the Texas Rules of Appellate Procedure that our written opinions are to be as brief as practicable so long as they address every issue raised which is necessary to final disposition of the appeal. Tex. R. App. P. 47.1. Since our finding of the lack of probable cause for the issuance of the search warrant is sufficient to be dispositive of the case, in the interest of brevity, we do not address the issue of the faulty description of the property to be searched as contained in the search warrant.
We reverse the judgment and remand the case to the trial court for disposition in accord with this opinion.
Bailey C. Moseley
Justice
Date Submitted: June 21, 2007
Date Decided: July 17, 2007
Do Not Publish
1. The so-called "two-pronged test" suggests that the two prongs were intended simply as guides to a magistrate's determination of probable cause--not as inflexible, independent requirements applicable in every case. See Gates, 462 U.S. at 232. This opinion does not purport to be a full-scale discussion of the tests for probable cause.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00108-CV
______________________________
IN RE:
RAYMOND L. BROWN AND PARKS, PATON, HOEPFL & BROWN, LLC
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
In September 2008, Scott Martin, SKM Partnership, Ltd., individually and as a shareholder on behalf of Martin Resource Management Corporation (MRMC), filed suit in Harris County against MRMC, Ruben S. Martin, III, and thirty-nine other individuals. That suit alleged, among other things, that Ruben caused MRMC to issue shares of stock to the other defendants and breached a fiduciary duty. The suit listed numerous causes of action and prayed for actual, exemplary, special, and consequential damages, declaratory relief that the stock issuance was improper, return of the shares issued, and other relief.
In May 2010, MRMC sued Scott Martin and four other defendants, alleging that they tortiously interfered with MRMCs contract to refinance existing indebtedness by filing the Harris County lawsuit and for slander by issuing disparaging statements regarding MRMC and its management. MRMC prayed for actual and exemplary damages.
In this original proceeding, Raymond L. Brown and Parks, Paton, Hoepfl & Brown, LLC, Michael Gayler, Gaylersmith Group, LLC, and Scott Martin (Relators) contend that a Gregg County judge clearly abused his discretion in denying their pleas to abate and dismiss the Gregg County suit in favor of a first-filed suit in Harris County, containing inherently interrelated facts.
Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion or violation of a duty imposed by law when no other adequate remedy by law is available. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (citing State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)). Absent extraordinary circumstances not present here, a denial of a motion to dismiss or a plea in abatement is a ruling incident to the ordinary trial process which will not be corrected by mandamus, but by the legal remedy of the ordinary appellate process. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991) (citing Abor v. Black, 695 S.W.2d 564, 56667 (Tex. 1985) (This court has consistently held that it lacks jurisdiction to issue writs of mandamus to supervise or correct incidental rulings of a trial judge, such as denials when there is an adequate remedy by appeal . . . includ[ing] . . . pleas in abatement.)).
Relators argue that the abatement was required under the principle of dominant jurisdiction. We have previously stated that [m]andamus is ordinarily available to resolve a conflict in jurisdiction between courts of coordinate jurisdiction only when the trial court first taking jurisdiction has been prohibited from proceeding, e.g., when the second court enjoins the parties from taking any more action in the first court. In re Ramsey, 28 S.W.3d 58, 6364 (Tex. App.Texarkana 2000, orig. proceeding) (citing Abor, 695 S.W.2d at 567). When both courts proceed with their separate actions without attempting to hinder the other courts jurisdiction, even questions of dominant jurisdiction may generally be reviewed adequately by appeal. Id. It is only when one court directly interferes with the jurisdiction of the other that mandamus becomes an appropriate remedy. Id.; see also In re U.S. Silica Co., 157 S.W.3d 434, 43839 (Tex. 2005).
Relators argue that mandamus rules have been modified by recent Texas Supreme Court opinions to the extent that our determination as to the adequacy of an appellate remedy should be determined by a practical and prudential balancing of the benefits and detriments of mandamus review. Citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 13637 (Tex. 2004); Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001). While Prudential did not concern a dominant jurisdiction question, Perry did. But in Perry, the Texas Supreme Court, in determining the proper presiding court in a congressional redistricting challenge, held that since substantial rights of the citizens of Texas were implicated, mandamus relief was necessary. Perry, 66 S.W.3d at 257. Even in those circumstances, the Texas Supreme Court determined the district court order actively interfered with the other court and met the requirements of Abor. Abor held that mandamus is available to resolve a conflict in jurisdiction between courts only when the second court actively interferes with the exercise of jurisdiction of the first court; otherwise, a traditional appeal is an adequate remedy. 695 S.W.2d at 567. No authority has been cited, nor has been found, rejecting Abor or holding that it is no longer authoritative in mandamus issues involving dominant trial court jurisdiction.
The two suits are related in that they both involve MRMC and the two major shareholders, Scott and Ruben. But the basic dispute in the Harris County case is that MRMC and Ruben improperly issued additional shares of stock in MRMC, resulting in damage to Scott, whereas the Gregg County case alleges that Scotts actions, including filing the Harris County suit and making disparaging statements, interfered with MRMCs business relationship and damaged the company.
In Morris v. Legatt, this Court found that even though the controversies in that matter were interwoven, since the second suit did not interfere with the exercise of jurisdiction to decide the ultimate issues in the first suit, mandamus was not a proper remedy. 877 S.W.2d 899, 901 (Tex. App.Texarkana 1994, orig. proceeding). Because the mandamus record filed in this case does not reveal any interference by the Gregg County court upon the proceedings in the Harris County court, Relators have an adequate remedy by appeal. See In re Akins, No. 09-09-00447-CV, 2009 WL 3763776, at *1 (Tex. App.Beaumont Nov. 12, 2009, orig. proceeding) (concluding mandamus relief inappropriate); In re Barnes, No. 04-07-00864-CV, 2007 WL 4375222 (Tex. App.San Antonio Dec. 17, 2007, orig. proceeding) (same).
Finally, Relators also argue that the Gregg County court abused its discretion in failing to deny the plea in abatement for the purely discretionary reasons of comity, convenience, and orderly procedure. The only authority cited is Dolenz v. Continental National Bank of Fort Worth, 620 S.W.2d 572 (Tex. 1981), which is not a mandamus proceeding, but is the normal appellate review after a final judgment. Consequently, Dolenz is inapplicable to this case. Even when basing the decision on purely discretionary grounds, the Relators argue that the proper application of the law allows only one conclusionthat the Gregg County case should be abated or dismissed. Based on the standard required for mandamus relief, we cannot conclude that the trial court clearly abused its discretion in denying the abatement.
Accordingly, we deny the petition for writ of mandamus.
Jack Carter
Justice
Date Submitted: November 29, 2010
Date Decided: November 30, 2010