Bonds, Michael Ray

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0039-12

MICHAEL RAY BONDS, Appellee

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
MONTAGUE COUNTY

K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J.,
W OMACK, J OHNSON, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. P RICE, J.,
dissented. M EYERS, J., did not participate.

OPINION

Michael Bonds moved to suppress the evidence seized pursuant to a search warrant

by contesting the warrant’s validity. The trial judge overruled his motion finding the errors

in the warrant’s description of the location to be searched did not invalidate the warrant. The

court of appeals found the warrant lacked probable cause and reversed. Finding that the

warrant was supported by probable cause and sufficiently particular, we reverse the court of
 BONDS—2

appeals’s judgment.

I. Background

On August 5th, 2008, Texas Department of Public Safety Sergeant Jeff Ashburn, upon

presenting his sworn affidavit, sought and obtained a search warrant authorizing the search

for “[d]rugs and/or chemicals kept, prepared, or manufactured in violation of the law of the

State of Texas, to wit: Possession of Controlled Substance in Penalty Group 1,

(Methamphetamine) (Cocaine)” and various drug paraphernalia associated with the

distribution of methamphetamine and cocaine from a location described as

[a] single story residence located at 401 Barker Street, Bowie, Montague
County, Texas. Said residence is a white wooden framed residence with a grey
composition shingle roof with the front of the residence facing south. Said
residence has two (2) windows facing towards Barker Street. In addition, the
property has a detached garage northwest of said residence. The garage has
a large utility door facing towards Barker Street. Parked east of the garage is
a small white and blue camper trailer.

In his supporting affidavit, Ashburn described the suspected place and the items to be

seized as stated above. His affidavit also described his investigation as follows. As a

commissioned peace officer with the Department of Public Safety for over ten years, the past

twenty-six months of which he was assigned to the Narcotics Service, Ashburn stated that

he is trained in the investigation of narcotics violations, the handling of witnesses, search

warrant preparation, and the investigation of persons who derive substantial income from

illegal importation, manufacture, distribution, and sale of illegal controlled substances.

Ashburn’s investigation began when a credible confidential informant told him in November
 BONDS—3

2007 that he had seen Bonds in possession of methamphetamine and had also seen

methamphetamine in Bonds’s home “located at Texas State Highway 59 and Barker Street

in Bowie, Montague County, Texas.” Ashburn then transported the confidential informant

to Bonds’s home, which Ashburn identified as “401 Barker Street, Bowie, Montague County,

Texas.” The confidential informant identified Bonds from a photographic line-up as the

person with whom he “conducted a controlled purchase of methamphetamine.”

Ashburn further determined that, according to records maintained by the Texas

Department of Public Safety, Bonds listed his address as 401 Barker Street, Bowie,

Montague County, Texas. Further, Ashburn conducted a criminal-history search revealing

Bonds’s prior arrest for possession of marijuana and for possession of a penalty-group 1

controlled substance, and multiple arrests for possession of a penalty-group 1 controlled

substance analogue. On May 27th, 2008, July 15th, 2008, and August 5th, 2008, Ashburn

conducted garbage searches and “obtained care custody and control of refuse that had been

discarded and left for collection at the said residence, 401 Barker Street, Bowie, Montague

County, Texas.” These searches produced a number of melted glass smoking pipes

containing drug residue which tested positive for cocaine and methamphetamine, plastic bags

containing methamphetamine and cocaine residue, and a MasterCard application addressed

to Bonds at 401 Barker Street, Bowie, Texas 76230. With the assistance of other officers,

Ashburn executed the warrant and seized methamphetamine, other controlled substances,

drug paraphernalia, and United States currency.
 BONDS—4

A. In the Trial Court

Bonds filed a pre-trial motion to suppress claiming that the evidence was seized

pursuant to an invalid warrant due to the lack of probable cause that the items sought were

where they were claimed to be. In support of his motion, Bonds offered and the trial court

admitted several photographs in the motion-to-suppress hearing purporting to prove the

warrant’s description of the location to be searched was partially inaccurate in describing the

address as 401 Barker and the roof color as grey.

Taken from several different perspectives, the photographs depict two residences in

relatively close proximity to one another and facing the same street (which Ashburn testified

was Barker Street) and a garage located behind both residences. Asburn identified the

residence that was actually searched. The photographs show it to have the following

characteristics:

• a single-story residence;

• presumably wood-framed;

• a white exterior;

• south-facing;

• two south-facing windows;

• a brown shingle roof; and

• a detached, south-facing garage which appears to be behind this residence and
has a large utility door.

The photographs also showed that the residence searched displayed a placard that read “422
 BONDS—5

Cowan,” but according to Ashburn, the placard was not there during his investigation or the

search warrant’s execution. Ashburn testified there were no markings of any kind on the

residence searched.

Two of the photographs show in closer detail the characteristics of the other residence

which was located to the east of the residence searched:

• a single-story residence;

• manufactured or trailer home;

• a white (or perhaps light grey) exterior

• south-facing;

• the numbers “401” displayed next to the front door;

• six south-facing windows;

• a grey shingle roof; and

• a ramp leading up to a large wooden front porch surrounded by a wooden
railing.

A garage can clearly be seen with a large utility door facing Barker Street, although the

photographs’ perspective restricts our ability to determine the garage’s directional

relationship to the two residences. The small white and blue camper mentioned in the

warrant does not appear in any of the photographs.

Ashburn described the searched residence as a white, wood-framed residence with two

south-facing windows and a brown roof. He conceded that his previous description of the

location’s roof as grey was a mistake. Drawing a distinction between the residences,
 BONDS—6

Ashburn testified that the other residence was a “premanufactured,” or trailer home, as

opposed to a wood-framed house. Ashburn testified that, when he referred to 401 Barker in

his affidavit, he was referring to the white, wood-framed residence with the brown roof, not

the manufactured home with the grey roof. He further testified that he had no difficulty

identifying the location intended to be searched and that the intended location was in fact

searched.

After hearing Ashburn’s testimony, the trial judge denied Bonds’s motion and entered

findings of fact and conclusions of law. Notable among them, the trial judge found:

7. The residence searched by authority of the search warrant is in close
proximity to two other buildings. One of the buildings is a residence
which visibly bears the house numbers “401 Barker Street;” this
residence is East of and separate from the residence actually searched
by authority of the search warrant. Both residences face South. The
residence search[ed] by authority of the search warrant has two
windows facing Barker Street. The residence situated to the East of the
searched residence has six windows facing Barker Street.

8. The residence searched by authority of the search warrant is a white,
wood frame residence with a reddish brown roof and detached garage.
There is a garage located just northwest of [the] residence searched and
of the house to the East of the residence searched.1

The trial judge further found that Ashburn’s affidavit contained errors in the description of

the roof color and the address of the property to be searched. However, the trial judge

concluded that Ashburn’s affidavit established probable cause for the warrant’s issuance

1
Court’s Findings of Fact and Conclusions of Law at 2–3, No. 2009-0000103M-
CR (97th District Court, Montague County, Tex. Nov. 26, 2010).
 BONDS—7

because the property actually searched had the correct number of windows and, as the

executing officer, Ashburn’s personal knowledge permitted him to identify the correct

location to be searched pursuant to the search warrant.

After the denial of his motion to suppress, Bonds entered a guilty plea to possession

of a penalty-group 1 controlled substance with intent to deliver and was sentenced to twenty-

five years’ confinement.

B. In the Court of Appeals

On appeal, Bonds again contended that due to Ashburn’s misidentification of the

location to be searched in the affidavit, the warrant was not supported by probable cause.

The court of appeals agreed and concluded that “the totality of the circumstances set forth

in Ashburn's affidavit fail to indicate a fair probability or a substantial chance that the items

identified in the warrant would be found at the residence searched.”2 The court held that the

affidavit failed to establish the “object-place nexus” because the facts stated in Ashburn’s

affidavit all linked to 401 Barker and did not “match up” with the location actually searched.3

In reaching its conclusion, the court assumed, without deciding, that the description of the

location intended to be searched “was sufficient to enable officers executing the warrant to

locate the target residence and to distinguish it from other places in the community.” 4

2
Bonds v. State, 355 S.W.3d 902, 908 (Tex. App.—Fort Worth 2011).
3
Id. at 909
4
Id. at 908.
 BONDS—8

In assuming that the description of the residence to be searched was adequate and

unnecessary to the disposition of the case,5 the court of appeals implicitly recognized that the

probable cause and particularity components of the Fourth Amendment, while related, may

be subject to distinct analyses. We think the court’s implication is correct. However, we find

that in holding that the affidavit’s facts “do not ‘match up’ with the location that was actually

searched” the court conducted a hybrid analysis which incorporated both a probable cause

and particularity determination simultaneously. While a single analysis consisting of both

Fourth Amendment requirements may be warranted in cases involving a facially invalid

warrant, the instant case’s facts require separate analyses. We address the issues of probable

cause and particularity in turn.

II. Analysis

A. Probable Cause

The Fourth Amendment to the United States Constitution mandates that “no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” 6 Probable cause

exists when, under the totality of the circumstances, there is a fair probability or substantial

5
Id. at 907–908 (citing Texas Rule of Appellate Procedure 47.1, which provides
that opinions must address issues necessary to final disposition of appeal, and holding that
“[w]e therefore need not address the adequacy of the search warrant's description of the
place to be searched—the residence now bearing the address placard for 422 Cowan.”).
6
U.S. C ONST. amend IV.
 BONDS—9

chance that contraband or evidence of a crime will be found at the specified location.7 It is

a flexible and nondemanding standard.8

While an appellate court typically reviews a trial judge’s motion-to-suppress ruling

under a bifurcated standard,9 a trial court’s determination whether probable cause exists to

support a search warrant’s issuance is constrained solely to the affidavit’s four corners.10

When we review a magistrate’s decision to issue a warrant, we apply a highly deferential

standard of review because of the constitutional preference for searches conducted pursuant

to a warrant over warrantless searches.11 Provided the magistrate had a substantial basis for

concluding that probable cause existed, we will uphold the magistrate’s probable-cause

determination.12 The magistrate may interpret the affidavit in a non-technical, common-sense

7
Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Illinois v.
Gates, 46 U.S. 213, 238, 244 n.13 (1983)); Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.
Crim. App. 2007).
8
Rodriguez, 232 S.W.3d at 60.
9
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (stating a
bifurcated review of a motion-to-suppress ruling requires giving almost total deference to
the trial judge’s determination of historical facts and then reviewing de novo the trial
judge’s application of the law).
10
State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); see Aguilar v.
Texas, 378 U.S. 108, 109 n.1 (1964) (“It is elementary that in passing on the validity of a
warrant, the reviewing court may consider only information brought to the magistrate’s
attention.”).
11
Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App.2004).
12
McLain, 337 S.W.3d at 271 (citing Gates, 462 U.S. at 234–37).
 BONDS—10

manner and may draw reasonable inferences solely from the facts and circumstances

contained within the affidavit’s four corners.13 Appellate courts should not invalidate a

warrant by interpreting the affidavit in a hypertechnical, rather than a common-sense,

manner.14 When in doubt, the appellate court should defer to all reasonable inferences that

the magistrate could have made.15

Based solely on the affidavit’s four corners, we find that the magistrate had a

substantial basis for concluding probable cause existed to search the location described in the

affidavit and warrant. The affidavit established a sufficient nexus between criminal activity,

the things to be seized, and the place to be searched. From the text of Ashburn’s affidavit,

the magistrate could find that Ashburn was employed by the Texas Department of Public

Safety as a commissioned peace officer for over ten years, and for the past twenty-six months

he was assigned to the Narcotics Service as a Sergeant. The magistrate could further find

that Ashburn is trained in the investigation of narcotics violations, the handling of witnesses,

search warrant preparation, and the investigation of persons who derive substantial income

from illegal importation, manufacture, distribution, and sale of illegal controlled substances.

Pertaining to the Bonds investigation, the magistrate could find the following: (1) in

November 2007, a confidential informant (CI), who has provided Ashburn truthful

13
State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App. 2011).
14
McLain, 337 S.W.3d at 272.
15
Id.
 BONDS—11

information in the past and knows what methamphetamine looks like, saw a man who the CI

knew as “Mike Bonds” in possession of methamphetamine, a penalty-group 1 controlled

substance; (2) the CI saw Mike Bonds possess methamphetamine in his house, known to the

CI to be located at Texas State Highway 59 and Barker Street, Bowie, Montague County; (3)

Ashburn transported the CI to Mike Bonds’s residence in Bowie County, which the

magistrate could reasonably infer was the location where the CI observed Bonds possess

methamphetamine and was identified by the CI as Bonds’s residence; (4) the CI identified

Bonds from a photo lineup as the person he saw possess methamphetamine; (5) according

to the Texas Department of Public Safety records, Bonds himself identified his address on

his driver’s license as 401 Barker Street, Bowie, Montague County, Texas; (6) from these

records, the magistrate could reasonably infer that Ashburn identified Bonds’s residence as

401 Barker Street; (7) on May 27th, 2008, July 15th, 2008, and August 5th, 2008, Ashburn

searched trash left for collection at 401 Barker Street—which could be reasonably

understood as the house the CI identified as Mike Bonds’s residence—and discovered drug

paraphernalia containing methamphetamine and cocaine residue and a MasterCard

application addressed to Michael Bonds, 401 Barker Street, Bowie, Texas 76230; and (8)

Bonds had a number of prior arrests for drug possession and a previous conviction for

possession of a penalty-group 1 controlled substance.

From the face of Ashburn’s affidavit, the magistrate had a substantial basis to find,

either directly or through reasonable inference, probable cause that contraband or evidence
 BONDS—12

of a crime will be found at the described location and satisfactorily established a nexus

between criminal activity, the things to be seized, and the place to be searched. Therefore,

probable cause existed to search the location described in the affidavit and repeated verbatim

in the warrant: A single story, white wood-framed, south-facing residence located at 401

Barker Street, Bowie, Montague County, Texas, a grey composite-shingle roof, and two

windows facing Barker Street, a detached garage located northwest of the residence, a garage

with a large utility door facing towards Barker Street, and had a small white and blue camper

trailer parked east of the garage.

Having found the warrant supported by probable cause, whether the search of the

residence in fact searched was constitutionally permissible now becomes a question of

whether the warrant’s description was sufficiently particular within the demands of the

Fourth Amendment.

B. Particularity

In addition to the prevention of general searches, the Fourth Amendment’s

particularity requirement “assures the individual whose property is searched or seized of the

lawful authority of the executing officer, his need to search, and the limits of his powers to

search.”16 The constitutional objectives of requiring a “particular” description of the place

to be searched include: (1) ensuring that the officer searches the right place; (2) confirming

that probable cause is, in fact, established for the place described in the warrant; (3) limiting

16
Groh v. Ramirez, 540 U.S. 551, 561 (2004).
 BONDS—13

the officer's discretion and narrowing the scope of his search; (4) minimizing the danger of

mistakenly searching the person or property of an innocent bystander or property owner; and

(5) informing the owner of the officer's authority to search that specific location.17

A warrant is sufficiently particular if it enables the officer to locate the property and

distinguish it from other places in the community.18 The particularity requirement is related

to the probable cause requirement in that it enables the magistrate to determine whether

probable cause exists for the requested search.19 However, the Fourth Amendment does not

require perfection in the warrant’s description of the place to be searched.20 A warrant may

be invalid upon its issuance because its description of the place to be searched or the person

or things to be seized is insufficient on its face. Alternatively, it may prove insufficiently

particular as a result of subsequently discovered facts.21 The Supreme Court’s opinion in

17
Long v. State, 132 S.W.3d 443, 447 (Tex. Crim. App. 2004).
18
Etchieson v. State, 574 S.W.2d 753, 759 (Tex. Crim. App. 1978); see Steele v.
United States, 267 U.S. 498, 503 (1925) (“It is enough if the description is such that the
officer with a search warrant can, with reasonable effort ascertain and identify the place
intended.”).
19
State v. Barnett, 788 S.W.2d 572, 576 (Tex. Crim. App. 1990); 2 W AYNE R.
L AF AVE, S EARCH AND S EIZURE: A T REATISE ON THE F OURTH A MENDMENT § 4.5, at 709
(5th ed. 2012).
20
2 L AF AVE § 4.5, at 710 (stating that “it does not follow that any and all errors in
description will invalidate a search warrant”).
21
See, e.g., Maryland v. Garrison, 480 U.S. 79, 85–86 (1987) (recognizing the
distinction between the validity of a warrant when it was issued and the validity upon
discovering ambiguity upon its execution and ultimately holding the warrant valid in both
respects).
 BONDS—14

Groh v. Ramirez illustrates the former. Agent Groh sought a search warrant to search the

Ramirezes’ home based on information from an informant that a large stock of weaponry,

including an automatic rife, grenades, and similar weapons, were located on the Ramirezes’

ranch.22 Despite Agent Groh’s application, which particularly described the place to be

searched and the items to be seized, the warrant itself failed to describe any of the items that

[Groh] intended to seize.23 Instead of describing the stockpile of firearms Groh intended to

seize in the portion of the warrant form that required a description of the person or property

to be seized, Groh typed only a description of the Ramirezes’ house.24 The Court held that

the warrant was plainly invalid and concluded that “the warrant did not describe the items

to be seized at all.”25 The Court continued, “In this respect the warrant was so obviously

deficient that we must regard the search as ‘warrantless’ within the meaning of our case

law.”26 Similarly, there can be little argument that a warrant that so obviously fails to describe

the place to be searched, and as a result does not meaningfully define the boundaries of the

search, is facially invalid.

However, the warrant’s description in the present case does not suffer from the same

22
Groh, 540 U.S. at 553.
23
Id. at 554.
24
Id.
25
Id. at 557–58 (emphasis in original).
26
Id. at 558.
 BONDS—15

infirmity; it is clearly facially particular. The description contains the location’s street

address complete with the city and county, the use of the location as a residence, building

construction, exterior color, roof color and material type, the direction the residence is facing,

the number of windows facing a particular street, and the location of a garage near the

residence, a description of the garage, and the color of a trailer parked near the garage. Like

the warrant at issue, most inaccuracies in a warrant’s description, as a practical matter, will

be discovered after the issuance of the warrant and perhaps during or after the warrant’s

execution. It follows that a particularity determination of a facially particular warrant will

incorporate extrinsic facts in addition to the warrant’s four corners. Despite the court of

appeals’s express claim that it does not address the adequacy of the warrant’s description, we

understand its holding that the affidavit does not provide probable cause to search the house

“actually searched” to incorporate a particularity component in its larger probable cause

analysis which considered facts beyond the warrant’s four corners.

Considering the warrant’s four corners and the additional facts adduced in the motion-

to-suppress hearing, we find that the warrant’s description of the location to be searched was

sufficiently particular within the Fourth Amendment’s command. The description of the

location to be searched described the location actually searched to a sufficient degree that

enabled the officers to locate and distinguish the property intended to be searched from

another in the community. The trial judge found the warrant’s description of the location to

be searched was erroneous in only two respects: the color of the roof and the address. The
 BONDS—16

remaining descriptive factors accurately described the house that was searched. The location

searched was a south-facing, white, wood-framed residence that had two windows facing

Barker Street. In contrast, the residence to the east of the searched property had six windows

facing Barker Street, and according to Ashburn’s testimony was a “premanufactured” home,

not a wood-framed house. Further, the manufactured residence’s large ramp leading to a

wooden deck was a prominent feature that distinguished the two locations and was not

included in the warrant’s description. Despite listing an incorrect address and roof color, the

balance of the description was sufficient to enable an officer to distinguish which property

was intended to be searched.

Further, any ambiguity that might have arisen from the presence of common

descriptive factors of the manufactured home labeled 401 Barker and the residence actually

searched was resolved by Ashburn’s personal knowledge of the location and residence

intended to be searched. In Bridges v. State, we considered the validity of a warrant which

described the place to be searched as a “pink wood frame building having white trim located

at 2134 Hardy in Taylor County, Texas.”27 Holding that the search warrant was valid, we not

only noted that the warrant described the house to be searched by its street address, color,

construction type, county, and state, but we considered the fact that the warrant-executing

officers had just been to the location where they had arrested Bridges, obtained the warrant,

27
Bridges v. State, 574 S.W.2d 560, 562 (Tex. Crim. App. 1978).
 BONDS—17

and returned to the same location.28 We held that there was no reasonable probability that

the officers would search any place other than the intended house.29 Our consideration of the

officer’s knowledge accords with a number of federal courts of appeals and several of our

intermediate courts of appeals that have addressed the particularity requirement when

confronted with a warrant’s description that is not entirely accurate.30 Factoring the officer’s

knowledge into the particularity analysis is especially appropriate when the warrant’s

authorization to search applies to a reasonably limited number of locations, mitigating the

fear of a warrant authorizing a general search. While the thrust of Bonds’s argument in

support of the evidence’s suppression was the lack of probable cause, the evidence admitted

in the motion-to-suppress hearing suggested that if the warrant’s description was ambiguous

as to what residence could be searched under the warrant’s authority, it was only an issue of

28
Id. at 561–62.
29
Id. at 562.
30
See, e.g., United States v. Gamboa, 439 F.3d 796, 806 (8th Cir. 2006) (finding
that “the officers had conducted extensive surveillance of the premises before the warrant
was executed, the officers had personal knowledge of the premises that they intended to
search, and the premises that they intended to search were, in fact, searched.”); United
States v. Johnson, 437 F.3d 69, 73 (D.C. Cir. 2006) (considering the officer’s familiarity
with the premise when executing officer also obtained the warrant); United States v.
Vega-Figueroa, 234 F.3d 744, 756 (1st Cir. 2000) (same); United States v. Durk, 149
F.3d 464, 466 (6th Cir. 1998) (same); United States v. Gordon, 901 F.2d 48, 50 (5th Cir.
1990) (same); Rogers v. State, 291 S.W.3d 148, 154–55 (Tex. App.—Texarkana 2009,
pet. ref’d) (same); Smith v. State, 962 S.W.2d 178, 185 (Tex. App.—Houston [1st Dist.]
1998, pet. ref’d) (same); Taylor v. State, 974 S.W.2d 851, 857 (Tex. App.—Houston
[14th Dist.] 1998, no pet.) (same); Jones v. State, 914 S.W.2d 675, 678 (Tex.
App.—Amarillo 1996, no pet.) (same).
 BONDS—18

which one of two residences could be searched. It was not argued, nor does the evidence

support, that the warrant purportedly permitted the search of any one location among a vast

universe of potential targets.

Ashburn’s familiarity with the location to be searched and that he was both the affiant

and participated in the warrant’s execution are circumstances which resolve any ambiguity

created by the description’s errors and render the warrant sufficiently particular. Ashburn

was quite familiar with the location searched. He had been to that location a minimum of

four times before the warrant’s execution. Ashburn first identified the location searched

when the CI identified where he observed Bonds in possession of methamphetamine.

Through his additional investigation, Ashburn had been to the location searched three

additional times over the course of four months to search the trash in front of the

location—the last time being the day of the warrant’s issuance and execution. Most

significantly, Ashburn testified that the location intended to be searched was the actual

location searched.

Bearing in mind the constitutional objectives of a particular description, we find the

risks an address error and an incorrect roof color potentially pose are absent here. Ashburn’s

significant familiarity with the location to be searched (and actually searched) leave little

chance that the officers would mistakenly search the wrong location and the property of an

innocent property owner. There is also little potential under the facts of this case that looking

to the officer’s knowledge allows limitless officer discretion in executing a warrant.
 BONDS—19

Assuming ambiguity existed, the warrant’s description on its face limited the authority to

search one of two houses—either the residence searched or the manufactured home labeled

401. Because the warrant’s authorization to search was substantially narrow, Ashburn’s

discretion to choose which residence to search based on his familiarity with the location

intended to be searched was appropriately limited.

III. Conclusion

We hold that the warrant was supported by probable cause, and the location to be

searched, while incorrect in part, was described with sufficient particularity. Because the

search of Bonds’s residence was supported by a valid search warrant, we reverse the court

of appeals’s judgment and affirm the judgment of the trial court.

DATE DELIVERED: March 20, 2013

PUBLISH