ACCEPTED
06-14-00239-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/22/2015 10:09:39 PM
DEBBIE AUTREY
CLERK
NO. 06-14-00239-CR
____________________________________________________________
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE COURT OF APPEALS 7/23/2015 8:50:00 AM
DEBBIE AUTREY
SIXTH DISTRICT Clerk
AT TEXARKANA, TEXAS
____________________________________________________________
MARK EUGENE ENGLE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
____________________________________________________________
APPEAL IN CAUSE NUMBERS 29,110
IN THE 354TH JUDICIAL DISTRICT COURT
OF HUNT COUNTY, TEXAS
____________________________________________________________
BRIEF FOR APPELLANT
____________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now the Appellant and submits this brief pursuant to the provisions
of the Texas Rules of Appellate Procedure in support of his request for the
judgment of conviction to be overturned in Cause No. 29,110.
Appellant Requests Oral Argument
IDENTITY OF PARTIES AND COUNSEL
Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011
Appellant’s Trial Attorney:
Katherine A. Ferguson
P.O. Box 21
2900 Lee St., Suite 102
Greenville TX, 75403
Appellee:
The State of Texas by and through
Noble Walker
Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401
Appellee’s Trial Counsel:
Steven Lilley
Hunt County District Attorney’s Office
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401
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TABLE OF CONTENTS
Identity of the Parties and Counsel ............................................................. 2
Table of Contents ....................................................................................... 3
Index of Authorities ..................................................................................... 4
Statement of the Case ................................................................................ 6
Issue Presented .......................................................................................... 7
Statement of the Facts ................................................................................ 8
Argument and Authorities ........................................................................... 9
Issue Number One ........................................................................... 9
The trial court erred by denying Appellant’s motion to suppress
evidence
Prayer for relief ........................................................................................ 18
Certificate of Word Count .......................................................................... 19
Certificate of Service ................................................................................. 19
3
INDEX OF AUTHORITIES
FEDERAL CASES:
Illinois v. Gates, 462 U.S. 213, 236 (1983). ................................................. 9
Jones v. United States, 362 U.S. 257, 271 (1960). ................................... 10
STATE CASES:
Bass v. State 64 S.W.3d 646 (Tex.App. —Texarkana 2001)..................... 10
Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). .................... 10
Coats v, State, 815 S.W.2d 715 (Tex.Crim. app. 1991) ............................ 13
Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). .................. 10
Elardo v. State, 163 S.W.3d 760 (Tex. App.-Texarkana 2005, pet. ref'd) .. 11
Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007). ...................... 10
Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001) ..................... 15
Taunton v. State, ___ S.W. 3d ____(Tex. App.-Texarkana 2015) ............... 9
Rodriguez v. State, 232 S.W.3d 55, (Tex. Crim. App. 2007) ....................... 9
State v. Ballard, 987 S.W.2d 889, 891 Tex.Crim.App.1999)...................... 10
State v. Delagarza, 158 S.W.3d 25 (Tex. App.-Austin 2005, no pet.) ........ 12
State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011) ................... 9
State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000) ......................... 10
Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004) .................... 9
4
STATE STATUTES:
Tex. Code Crim. Proc. Ann. art. 18.01(c) (Casemaker 2015) .................... 12
Tex. R. App. P. 44.2(a) (Casemaker 2015) ............................................... 16
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STATEMENT OF THE CASE
This is an appeal of and sentence in criminal case for the 354th
Judicial District, in Hunt County, Texas. Appellant was convicted
Manufacturing and Delivery of a Controlled Substance Penalty Group 1
More than Four Grams but less than 200 Grams. After Appellant’s motion
to suppress the evidence was denied by the trial court, Appellant Plead
Guilty. Appellant was assessed a sentence Life Imprisonment on October
1, 2014 by a Jury. Notice of appeal was given on October 3, 2014. The
clerk's record was filed November 10, 2014. The reporter's record was
filed on February 11, 2014.
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ISSUE PRESENTED
ISSUE ONE:
THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION TO SUPPRESS EVIDENCE
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STATEMENT OF THE FACTS
On December 7, 2012 an alleged victim to a sexual assault
apparently through another person contacted Greenville PD and a report
was made by an officer Petrea. The report was made into an affidavit in
support of a search warrant by and sworn to by affidavit Felicia White in
front of the former Judge Steven Tittle of the 196th District Court. (RR Vol.
22, Joint Exhibit 1.)
Throughout the affidavit, the Affiant White, refers to the alleged facts
known to her only through a report appearing to be made by Petrea. Most
every sentence referring to an alleged sexual assault begins with “Said
report states.” Then the White described the facts she apparently read
from another officer.
White stated that, “Jane Doe could not go into detail about the
assault. (RR Vol. 22, Joint Exhibit 1. p.3).
After a hearing the trial court in denied appellant’s Motion to suppress
and made findings stating it considered the totality of the circumstances
there was probable cause within the four corners of the Application for
Search warrant to issue to search for sexual assault. (CR Vol. 1 p. 90) The
trial court made a formal order denying the motion to suppress on
September 11, 2014. (CR Vol. 1p.94).
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ARGUMENT
Issue One: The trial court erred by denying Appellant’s motion to
suppress evidence.
The United States and Texas Constitutions guarantee the right of the
people to be secure against unreasonable searches of their persons,
houses, papers, and effects. U.S. Const. amend. IV; Tex. Const. art. I, § 9.
As an exception to the general rule articulated by the Texas Court of
Criminal Appeals an issuing magistrate's decision to grant an application
for a search warrant should be reviewed with a deferential standard of
review. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).
The deferential review "encourage[s] 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, 232 S.W.3d 55, 59–60 (Tex. Crim. App.
2007). Courts have found that affidavits for arrest or search warrants
should be interpreted in a "'common sense and realistic manner, '" and
once a magistrate has found probable cause, warrants should not
thereafter be invalidated through a "hypertechnical" interpretation of their
supporting affidavits. Illinois v. Gates, 462 U.S. 213, 236 (1983); Crider v.
State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011).
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Courts can sustain the issuance of the warrant if "the magistrate had
a 'substantial basis for . . . conclud[ing]' that a search would uncover
evidence of wrongdoing." Gates, 462 U.S. at 236 (quoting Jones v. United
States, 362 U.S. 257, 271 (1960)).
Yet, Courts do not grant that same degree of deference to a
reviewing trial court. Courts review the trial court's ruling on a motion to
suppress by an abuse of discretion standard. Bass v. State 64 S.W.3d 646
(Tex.App. —Texarkana 2001). In a suppression hearing, the trial court is
the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimonies. Courts view the evidence in the light
most favorable to the trial court's ruling, State v. Ballard, 987 S.W.2d 889,
891 Tex.Crim.App.1999), and afford almost total deference to the trial
court's determination of historical facts which the record supports,
especially when the fact findings are based on an evaluation of the
witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856
(Tex.Crim.App.2000).
This Court stated in Taunton v. State, a motion to suppress is
normally reviewed based on a bifurcated standard which (1) grants
deference to the trial court's determinations of historical facts that are
based on an evaluation of credibility and (2) reviews de novo the trial
10
court's application of the law. Taunton v. State, ___ S.W. 3d ____(Tex.
App.-Texarkana 2015), citing State v. McLain, 337 S.W.3d 268, 271 (Tex.
Crim. App. 2011).
"However, when the trial court is determining probable cause to
support the issuance of a search warrant, there are no credibility
determinations, rather the trial court is constrained to the four corners of the
affidavit." Id. "Because probable cause to support the issuance of the
warrant is determined from the 'four corners' of the affidavit alone, there are
no credibility choices to be made by the trial court,"
The review of the trial court’s ruling is then de novo. Elardo v. State,
163 S.W.3d 760, 765 (Tex. App.-Texarkana 2005, pet. ref'd).
To justify the issuance of a search warrant, the supporting affidavit
must set forth facts sufficient 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) (Casemaker 2015).
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The facts alleged in the affidavits "must be sufficient to justify a
conclusion that the object of the search is probably on the premises at the
time the warrant is issued." State v. Delagarza, 158 S.W.3d 25, 26 (Tex.
App.-Austin 2005, no pet.). The determination of the sufficiency of an arrest
or search warrant is limited to the four corners of the affidavit. Tauton "The
issue is not whether there are other facts that could have, or even should
have, been included in the affidavit; we focus on the combined logical force
of facts that are in the affidavit, not those that are omitted from the
affidavit." Rodriguez, 232 S.W.3d at 62.
Affidavit insufficient under its “Four Corners”
In the case at bar the affiant, did not give sufficient facts to justify the
issuance of a search warrant. It clear that the affiant attempted to show the
affidavit was based upon her training and experience as an officer when
she stated her training an education. (RR Vol. 22, Joint Exhibit 1. p.2). Yet,
in actuality the a statement of officer Petrea’s experience would have been
more appropriate. Once more, there is no clear indication that White’s
training and experience she was able to determine that Petrea made an
investigation that resulted in reliable evidence, or even that she knew his
experience and training would have led him to obtain reliable information.
either based on her personal experience of Officer Petrea.
12
Here, one cannot discern from the four corners of the affidavit that entry in
the hotel room will further the investigation. The trial court erred that
There is no indication that the information provided by Jane Doe is
reliable for any reason. The facts presented little corroboration nor was
there evidence of precious reliable information. Based on these facts Jane
Doe acted similar to a confidential informant. Courts have found there was
no probable cause when informant known to the officer only three weeks
and the evidence provided offered very little corroboration or evidence of
previous reliable information. Coats v, State, 815 s.w.2d 715 (Tex.Crim.
app. 1991). Once more there is no clear indication in the four corners of
the affadavit that Appellant did any of the sexual acts without the consent of
Jane Doe. Affiant White stated in here affidavit she also apparently spoke
with a person named Holly Robinson, the executive Director of the Crisis
Center of Northeast Texas. (RR Vol. 22, Joint Exhibit 1. p.4). There is no
indication that Robinson had any experience or even ben with the center
for any period of time. Again White stated in her affidavit certain sex acts
but there is no indication that those acts were done against the consent of
Jane Doe.
Suppression under Franks v. Delaware
13
At the motion to suppress hearing the evidence came to light that
rose to that the Officers had a reckless disregard for the truth. Appellant’s
trial attorney had the following exchange with the affiant:
Q:Y'all have absolutely no idea about her history, her truthfulness or
lack thereof, correct?
A :Correct.
Q :She spins a tale for you and you fill out an affidavit for a search
warrant, correct?
A: Yes.
(RR Vol. 17 p.18-19). Affiant White even admitted she had only
done 3 or 4 search warrants before, and does not normally do them. (RR
Vol. 17 p. 32). White stated relative inexperience despite stating in her
affidavit she has experience and received additional training that included
sexual assault investigation. Jane Doe was a transient person and not
someone known to the local police. (RR Vol. 17 p.18). White or even the
police department was able to corroborate anything from before the
affidavit was made. (RR Vol.17 p.14).
Under Franks v. Delaware, a defendant who makes a substantial
preliminary showing that a false statement was made in a warrant affidavit
knowingly and intentionally, or with reckless disregard for the truth, may be
entitled by the Fourth Amendment to a hearing, on the defendant's request.
This hearing is required only where the false statement is essential to the
14
probable cause finding. If at the hearing the defendant establishes the
allegation of perjury or reckless disregard by a preponderance of the
evidence, the affidavit's false material is set aside. If the remaining content
of the affidavit does not then still establish sufficient probable cause, the
search warrant must be voided and the evidence resulting from that search
excluded Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007).
After the above testimony was elicited from the White it clear that the
affidavit was made with reckless disregard for the truth. Therefore the
evidence should have been suppress and his conviction should be
overturned.
Constitutional Error
The erroneous admission of evidence over a Fourth Amendment
objection is a constitutional error, and reversal is required unless the
appellate court determines beyond a reasonable doubt that the error did
not contribute to the conviction. Hernandez v. State, 60 S.W.3d 106, 106
n.1 (Tex. Crim. App. 2001 )
The reviewing court must reverse the conviction if there is a
reasonable possibility that the error, within the context of the trial, moved
the jury from acquitting the defendant to convicting him. Davis v.State
addition to the caselaw, courts are directed by Rule 44.2(a) of the Texas
15
Rules of Appellate Procedure. It states: If the appellate record in a criminal
case reveals constitutional error that is subject to harmless error review,
the court of appeals must reverse a judgment of conviction or punishment
unless the court determines beyond a reasonable doubt that the error did
not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a)
(Casemaker 2015).
In making this determination, the appellate court must consider the
entire record and weigh the following factors: "(1) the importance of the
[complained-of] evidence to the State's case; (2) whether the . . . evidence
was cumulative of other evidence; (3) the presence or absence of other
evidence corroborating or contradicting the [complained-of] evidence, . . .;
(4) the overall strength of the State's case"; and (5) any other factor in the
record that affects the probable impact of the error. Clay v. State, 240
S.W.3d 895, 904 (Tex. Crim. App. 2007) (citing Davis v. State , 203 S.W.3d
845).
In this case the evidence of the methamphetamine is the only
contraband complained of in his indictment. Admittedly here the Appellant
plead guilty to the crime, but it was only after the trial court overruled his
motion to suppress. Without the methamphetamine there is no other valid
of admissible evidence to convict the Appellant. The trial court did note
16
even get to the issue of an admissibility of statements made by defendant
because it was a case conceding position of contraband found in
Appellants hotel room. Therefore the error contributed to the plea of guilty
and conviction of Appellant.
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PRAYER FOR RELIEF
Wherefore, premises considered, Appellant respectfully prays that his
conviction in the above entitled and numbered cause be reversed and
acquit him. Appellant further prays for all other lawful relief to which he
may be entitled, at law or in equity.
Respectfully submitted,
Jason A. Duff
State Bar No. 24059696
2615 Lee Street
P.O. Box 11
Greenville, TX 75403-0011
Attorney for the Appellant
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CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and
(i), the undersigned attorney or record certifies that Appellant's Brief
contains 14-point typeface of the body of the brief, 12-point typeface for
footnotes in the brief and contains 1,985 words, excluding those words
identified as not being counted in appellate rule of procedure 9.4(i)(1), and
was prepared on Microsoft Word 2010.
Jason A. Duff
Attorney for the Appellant
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and
foregoing instrument was forwarded to Hunt County District Attorney Noble
D. Walker, Jr., P.O. Box 1097, Greenville, Texas 75403, on this the 22nd
day of July, 2015, by hand and to the Court of Appeals in Texarkana via
Electronic Filing.
Jason A. Duff
Attorney for the Appellant
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