IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 18, 2003
______________________________DAN THOMAS,
Appellant
v.
TEXAS DEPT. OF CRIMINAL JUSTICE- INST. DIV. & RICHARD MCKEE,
Appellees _________________________________
FROM THE 258TH DISTRICT COURT OF POLK COUNTY;
NO. CIV20,089; HON. ELIZABETH E. COKER, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, REAVIS, and CAMPBELL, JJ.
Appellant Dan Thomas (Thomas), an inmate with the Texas Department of Criminal Justice (TDCJ) appeals from an order dismissing, without prejudice, his suit against the TDCJ and Richard McKee (McKee). Through two issues, he contends that the trial court erred in dismissing his suit 1) prior to service and 2) because it had arguable basis in fact. We affirm the dismissal.
Applicable Law
The trial court dismissed the suit in accordance with §14.003(b)(4) of the Texas Civil Practice and Remedies Code. The provision states that a trial court may consider whether a claim is substantially similar to a prior claim in determining whether it is frivolous. Tex. Civ. Prac. & Rem. Code Ann. §14.003(b)(4) (Vernon 2002). Statute further provides that if the claim is held to be frivolous, it may be dismissed either before or after service of process upon the defendant. Id. at §14.003(a)(2). Next, should the plaintiff fail to comply with §14.004 of the same Code, the trial court may then assume that the action is similar to another previously filed and, therefore, frivolous. (1) Thomas v. Knight, 52 S.W.3d 292, 295 (Tex. App.-Corpus Christi 2001, pet. denied); Samuels v. Strain, 11 S.W.3d 404, 406-07 (Tex. App.-Houston [1st Dist.] 2000, no pet.). Finally, the provisions of §14.001 et seq., apply when an inmate sues as a pauper. Tex. Civ. Prac. & Rem. Code §14.002(2).
Application of Law
Issue One - Dismissal Before Service
Thomas initially complains of the trial court dismissing the cause before the TDCJ and McKee were served. We overrule the point.
It is clear that Thomas was an inmate when the suit was initiated. Similarly clear is that he sought to prosecute the matter as a pauper. Consequently, the provisions of §14.001 et seq., of the Civil Practice and Remedies Code apply to him.
Next, and as previously stated, §14.003(a) grants the trial court authority to dismiss a suit "either before or after service." (Emphasis added). Given that dismissal may occur "before" service, we reject Thomas' contention that the trial court must have first caused the defendants to be served before it could dismiss the action.
Issue Two - Arguable Claim
In his second and last issue, Thomas asserts that the trial court erred in dismissing his suit because his claim had an arguable basis in fact and law. We again overrule the issue.
It is clear that the trial court dismissed the suit, without prejudice, because it deemed the matter frivolous per §14.003(b)(4). Similarly clear is that it deemed the matter frivolous because Thomas did not comply with §14.004 of the Civil Practice and Remedies Code. (2) That is, because he did not file an affidavit or declaration satisfying §14.004, the trial court could have 1) reasonably assumed that the pending action was substantially similar to a previous claim and 2) therefore dismissed the action. Given this, we conclude that the trial court did not abuse its discretion in dismissing the cause without prejudice. Thomas v. Knight, supra; Samuels v. Strain, supra.
Accordingly, we affirm the order of dismissal.
Brian Quinn
Justice
1. Section 14.004 obligates an inmate to identify (by affidavit or declaration) each suit previously
brought by him and describe the operative facts, parties, cause number, court, and result. Tex. Civ. Prac.
& Rem. Code Ann. §14.004(a)(1) & (2) (Vernon 2002).
2.
NO. 07-09-00375-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 27, 2010
CARLOS BARRIENTOS MARTINEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;
NO. 2690; HONORABLE KELLY G. MOORE, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Carlos Barrientos Martinez, pleaded guilty to possessing less than one gram of a controlled substance,[1] a state-jail felony, after the trial court overruled his motion to suppress the evidence seized pursuant to a search warrant. The trial court imposed a two-year sentence, probated for five years. Appellant appeals the trial courts ruling on his motion to suppress. We affirm.
Factual and Procedural History
In his sole issue on appeal, Martinez contends that the trial court erred by overruling his motion to suppress because the affidavit in support of the search warrant contained false statements from Denver City Police Officer Noe Valdez. Specifically, appellant challenges the validity of the affidavit and the search warrant it supported on the basis of Valdezs statement that the Ledo Street residence to be searched was in the charge of and controlled by appellant at the time the affidavit was made. Appellant alleges that he was not a resident of that house at that time and that Valdezs statement to the contrary is a material falsehood made knowingly, intentionally, or recklessly and, thus, it must be excised from the affidavit pursuant to Franks v. Delaware, 438 U.S. 154, 15556, 98 S.Ct. 2674; 57 L.Ed.2d 667 (1978). Further, according to appellant, excising the misstatement would invalidate the warrant because it would no longer specifically identify the premises to be searched.
Standard of Review
We begin our review under the presumption that the affidavit in support of the search warrant is valid. See Cates v. State, 120 S.W.3d 352, 355 (Tex.Crim.App. 2003). We review the trial courts ruling on a motion to suppress for abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006). The determination of whether a probable cause affiants statement was deliberately false or made with reckless disregard for the truth is a question of fact, and we give great deference to the trial court in its role as the sole trier of fact and judge of the credibility of the witnesses. See Janecka v. State, 937 S.W.2d 456, 462 (Tex.Crim.App. 1996); Blocker v. State, 264 S.W.3d 356, 358 (Tex.App.Waco 2008, no pet.).
Analysis
Ordinarily, when we determine the validity of a search warrant affidavit, our review is limited to the four corners of the affidavit. See Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App. 1992). However, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant 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 defendants request. Franks, 438 U.S. at 15556. If the defendant has made a substantial preliminary showing of deliberate falsity, the trial court is required to go behind the four corners of the affidavit in a Franks evidentiary hearing. Cates, 120 S.W.3d at 355 n.3.
A defendant makes a substantial preliminary showing and, thus, gains the right to an evidentiary hearing, under Franks, by satisfying a three-part test. See Harris v. State, 227 S.W.3d 83, 85 (Tex.Crim.App. 2007). First, the defendant must allege a deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false. Id. Secondly, the defendant must accompany these allegations with an offer of proof stating the support for such allegations. Id. Finally, the defendant must 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. Id.
At the hearing on the motion to suppress, the movant has the burden of establishing the allegation of perjury or reckless disregard for the truth by a preponderance of the evidence. See Franks, 438 U.S. at 156; Harris, 227 S.W.3d at 85; Jordan v. State, 271 S.W.3d 850, 854 (Tex.App.Amarillo 2008, pet. refd). If, after the hearing, the trial court determines the defendant has met his burden of proof, the false information contained in the warrant affidavit must be disregarded. See Franks, 438 U.S. at 156. If the remainder of the affidavit does not contain sufficient probable cause to support the issuance, the warrant is voided and any evidence obtained as a result of its issuance must be excluded. Id.
As we review the record to determine whether appellant met his burden of showing deliberate falsity or reckless disregard for the truth, we are mindful that the Fourth Amendment requires a truthful factual showing when determining probable cause. See id. at 16465. Truthful, however, does not mean that every fact recited in the affidavit is necessarily correct. Id. at 165. Instead, truthful means that the information put forth in the affidavit is believed or appropriately accepted by the affiant as true. Id. The exclusionary rule in Franks does not extend to instances in which the police act merely negligently in collecting the facts alleged in the affidavit. See id. at 170.
Appellant testified that he had lived at the Ledo Street residence but that he had moved out approximately six months prior to the execution of the search warrant. At the time of the search, appellant was living with his brother about two blocks away from the Ledo Street residence. He denied that he still had some clothing at the Ledo Street residence. He admitted that he returned to his former residence to visit and drink with his friends but that he only rarely stayed overnight there.
Valdez testified that, according to the information that [he] obtained, appellant was living at the residence. Valdez explained that information from the confidential informant, whom he described as reliable, and complaints from concerned citizens in that neighborhood led him to believe that the premises to be searched were controlled by appellant. His surveillance of the premises supported such a conclusion when Valdez observed appellant at the residence.
One of appellants friends, a codefendant who lived at the residence, testified that appellant had moved out approximately three months before the search but still had clothing at the residence. From the witnesss description, those clothes were limited to some work attire. He added that appellant frequently came over to the residence but did not have a key to the door. He later clarified, though, that none of the residents had a key and that they used a knife to gain access to the residence. He testified that appellant no longer paid rent at the residence at the time of the search.
We assume, without deciding, that appellant sufficiently satisfied the three-part test that would entitle him to a Franks hearing. Based on evidence presented at the hearing, we cannot say that the trial court abused its discretion by determining that Valdezs statement was not deliberately false or made with reckless disregard for the truth. See Janecka, 937 S.W.2d at 465. The evidence shows that appellant had lived at the residence and frequently visited there. Valdez testified that he had obtained the information in the affidavit from the confidential informant, neighborhood complaints, and his own surveillance. Based on such evidence, the trial court could have rejected appellants allegation that Valdez included the challenged statement in the affidavit knowing that such statement was false or in reckless disregard for the truth. See Blocker, 264 S.W.3d at 35960 (observing, during discussion of Franks claim, that even if defendant were only a houseguest, living in the trailer with the permission of the host, he had apparent authority over the residence). Affording the trial court proper deference in making such a factual determination, we overrule appellants sole issue on appeal. See Janecka, 937 S.W.2d at 462.
Conclusion
Having overruled appellants sole issue on appeal, we affirm the trial courts judgment.
Mackey K. Hancock
Justice
Do not publish.
[1] See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon Supp. 2009).