ACCEPTED
13-14-00588-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/14/2015 9:48:05 AM
DORIAN RAMIREZ
CLERK
NO. 13-14-00588-CR
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
CORPUSOFCHRISTI/EDINBURG, TEXAS
TEXAS 4/14/2015 9:48:05 AM
AT CORPUS CHRISTI DORIAN E. RAMIREZ
Clerk
THE STATE OF TEXAS,
Appellant,
v.
CHRISTOPHER ALEXSON PAPPILLION,
Appellee.
On Appeal from the 377th District Court
Victoria County, Texas
Cause Number 13-2-27,162-D
APPELLANT’S REPLY BRIEF
STEPHEN B. TYLER
Criminal District Attorney
Victoria County, Texas
BRENDAN WYATT GUY
Assistant Criminal District Attorney
Victoria County, Texas
205 N. Bridge St. Ste. 301,
Victoria, Texas 77901-6576
bguy@vctx.org
(361) 575-0468
(361) 570-1041 (fax)
State Bar No. 24034895
(On Appeal)
Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as
follows:
APPELLANT The State of Texas
APPELLEE Christopher Alexson Pappillion
TRIAL JUDGE The Honorable Robert Cheshire
377th District Court
Victoria, Texas
TRIAL PROSECUTOR Edward Paul Wilkinson
State Bar No. 24052674
Assistant Criminal District Attorney
205 N. Bridge St. Ste 301
Victoria, Texas 77901-6576
TRIAL DEFENSE ATTORNEY Brent Andrew Dornburg
State Bar No. 24003930
120 N. Main Street
Victoria, Texas 77901
APPELLATE STATE’S Brendan Wyatt Guy
ATTORNEY State Bar No. 24034895
Assistant Criminal District Attorney
205 N. Bridge St. Ste 301
Victoria, Texas 77901-6576
APPELLATE DEFENSE Stephen D. Jackson
ATTORNEYS Law Offices of Stephen D. Jackson &
Associates
State Bar No. 00784324
215 Simonton
Conroe, Texas 77301
Reply Brief of Appellant ii
Victoria County Criminal District Attorney
No. 13-14-00588-CR
Paul Morrison
Law Offices of Stephen D. Jackson &
Associates
State Bar No. 24079028
215 Simonton
Conroe, Texas 77301
Reply Brief of Appellant iii
Victoria County Criminal District Attorney
No. 13-14-00588-CR
TABLE OF CONTENTS
PAGE (S)
TABLE OF CONTENTS ........................................................................ iv
INDEX OF AUTHORITIES .................................................................... v
SUMMARY OF REPLY ....................................................................... 1-2
REPLY .................................................................................................. 2-10
I. Even after including the omitted material at issue in
this case into the affidavit, probable cause to support
the issuance of a search warrant still exists............................. 2-10
PRAYER .................................................................................................. 11
SIGNATURE ........................................................................................... 11
CERTIFICATE OF COMPLIANCE ................................................... 12
CERTIFICATE OF SERVICE ............................................................. 13
Reply Brief of Appellant iv
Victoria County Criminal District Attorney
No. 13-14-00588-CR
INDEX OF AUTHORITIES
United States Supreme Court Cases
Franks v. Delaware, 98 S. Ct. 2674 (1978)...................................... 1-5, 10
Texas Cases
Flores v. State, 319 S.W. 3d 697 (Tex. Crim. App. 2010) ...................... 6
Heitman v. State, 789 S.W. 2d 607
(Tex. App.-Dallas 1990, pet. ref’d) .......................................................... 3
Melton v. State, 750 S.W. 2d 281
(Tex. App.-Houston [14th Dist.] 1988, no pet)......................................... 3
Rentaria v. State, 206 S.W. 3d 689 (Tex. Crim. App. 2006)................ 3-4
Rodriguez v. State, 232 S.W. 3d 55 (Tex. Crim. App. 2007) ............... 2-3
Texas Rules
TEX. R. APP. 9.4..................................................................................... 12
TEX. R. APP. 38.1..................................................................................... ii
Reply Brief of Appellant v
Victoria County Criminal District Attorney
No. 13-14-00588-CR
NO. 13-14-00588-CR
IN THE COURT OF APPEALS
FOR THE THIRTEEN DISTRICT OF TEXAS
AT CORPUS CHRISTI
THE STATE OF TEXAS…………………………………………..Appelant
v.
CHRISTOPHER ALEXSON PAPPILLION,.……………………...Appellee
* * * * *
APPELLANT’S REPLY BRIEF
* * * * *
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appellant in the above numbered
and entitled cause, and files this the Appellant’s Reply Brief showing:
SUMMARY OF THE REPLY
Even if Franks hearings can be held concerning omissions in the
affidavit, it is clear that when we apply the standard urged by the Appellee
for evaluating a Franks violation based on an omission, which requires
reading the omitted material into the affidavit and then determining if there
is probable cause, there was probable cause to support the issuance of a
search warrant in this case. The omitted material at issue in this case does
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
1
not diminish the probable cause that was already established by the search
warrant affidavit for this case. The omitted material still strongly supports a
finding that cocaine was obtained from inside Appellee’s residence, and that
information in conjunction with the remainder of the affidavit is more than
sufficient to establish probable cause to search Appellee’s residence.
Therefore, even under Appellee’s favored approach, the search warrant was
still adequately supported by probable cause, and as such Appellee’s motion
to suppress should have been denied.
REPLY
I. Even after including the omitted material at issue in this case into
the affidavit, probable cause to support the issuance of a search
warrant still exists.
The Court of Criminal Appeals’ Rodriguez decision appears to have
settled the issue of whether a Franks evidentiary hearing can be held
concerning alleged omissions from an affidavit. See Rodriguez v. State, 232
S.W. 3d 55 (Tex. Crim. App. 2007); Franks v. Delaware, 98 S. Ct. 2674
(1978). Rodriguez saw the Court of Criminal Appeals state that “it is not
necessary to delve into all of the facts that were omitted by the affidavit” and
further state that, “the only issue is whether the facts that actually were in the
affidavit, combined with all reasonable inferences that might flow from
those facts, are sufficient to establish a “fair probability” that more cocaine
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
2
would be found at the Goddard Street Garage.” Rodriguez, 232 S.W. 3d at
64. (emphasis added). That seems a definite statement that the Court of
Criminal Appeals expects courts only to look at what was actually in the
affidavit and thus logically would mean that Franks hearings are not to be
conducted over supposed omissions in the affidavit.
However, should it be concluded that Rodriguez did not implicitly
establish that Franks hearings cannot be based on alleged omissions from
affidavits, and should it further be concluded that defendants will in fact be
allowed to obtain Franks hearings on supposed omissions, then the trial
court still erred in granting Appellee’s motion to suppress in this case.
The Appellee argues that when a Franks hearing is going to be
conducted for alleged omissions then the proper way to conduct such a test
is to include the omitted material into the affidavit and then determine if it
still establishes probable cause. See Heitman v. State, 789 S.W. 2d 607,
610-611 (Tex. App.-Dallas 1990, pet. ref’d); Melton v. State, 750 S.W. 2d
281, 284 (Tex. App.-Houston [14th Dist.] 1988, no pet). That does seem a
logical way to conduct an evaluation concerning alleged omissions, and
there is dicta in the Court of Criminal Appeals’ Rentaria decision that
suggests that if the Court of Criminal Appeals was going to extend Franks to
apply to omissions then that is how it would structure the test. Rentaria v.
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
3
State, 206 S.W. 3d 689, 704 (Tex. Crim. App. 2006). (Rentaria was a pre-
Rodriguez case where the Court of Criminal Appeals declined to definitively
address whether Franks applied to omissions from an affidavit but did note
in passing that even if Franks did apply to omissions, the search warrant
affidavit in that case would have still been valid even after the omitted
material was included.) Rentaria, 206 S.W. 3d at 704. However, if that is
the way to perform a Franks test concerning omissions, then the trial court
clearly erred in granting the motion to suppress, because a review of the
record shows that when the allegedly omitted material is read into the
affidavit there is more than enough evidence to establish probable cause for
the issuance of a search warrant.
The Appellee essentially claims six facts were left out of the affidavit
in this case. These were: 1) that there were three other people, Nathan, Jose
Partida, and Ivan Casas, involved in the case; 2) that there is no information
about the credibility and reliability of any of these people; 3) that the
Confidential Informant (hereafter CI) did not actually participate in the
controlled purchase; 4) that it was Ivan Casas who actually went into
Appellee’s residence and participated in the controlled purchase; 5) that the
affiant had never deal with Mr. Casas before and did not know anything
about his truthfulness or veracity; and 6) that the CI had no information
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
4
about what happened during the controlled purchase inside Appellee’s
residence.
If the information that Nathan, Jose Partida, and Ivan Casas were
involved in the case is to be read into the affidavit then it is obviously
necessary to likewise read in all of the information about how they were
involved in the case. (Cherry picking the facts about their involvement to
just the six facts Appellee cites, without considering all of the testimony
about these individuals’ involvement in the case would produce exactly the
kind of misleading affidavit that Franks hearings are designed to remedy.)
And once the full information about the involvement of these other
individuals is read into the affidavit, it is clear that even with that additional
information the affidavit still easily establishes that narcotics were present at
the 201 Wearden residence at the time the CI travelled to that location.
The record shows that the CI attempted to purchase cocaine from
Nathan who did not have any cocaine. [RR-I-9]. The CI and Nathan then
met with Mr. Partida, who also did not have any cocaine. Id. The CI,
Nathan, and Mr. Partida then met with Mr. Casas who also did not have any
cocaine. [RR-I-10]. Mr. Casas then took the entire group to Appellee’s
residence at 201 Wearden where Mr. Casas went inside and then came back
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
5
out with the cocaine. [RR-I-10-11]. Mr. Casas then sold the cocaine to the
CI. [RR-I-11].
Nothing in that chain of events diminishes probable cause for
searching Appellee’s residence. Quite the opposite, the chain of events leads
to one inexplicable conclusion: that cocaine was present in Appellee’s
residence at the time the CI travelled there. There is just no other logical
conclusion to draw from an individual saying he does not have any cocaine,
that same individual then traveling directly (under police observation the
entire time) to another location, entering into that other location, and then
emerging from that location with cocaine now in his possession. If an
individual does not have any cocaine, goes into a building, and then a short
time later emerges from the building with cocaine, then that certainly
supports a reasonable inference the individual got the cocaine from inside
the building.
Furthermore, when that logical conclusion (that there was cocaine in
Appellee’s residence at the time the CI and company drove up to the
residence and Mr. Casas went inside) is combined with the reports the police
had that the Appellee lived at that location, and that the Appellee was
engaged in drug trafficking, it makes it reasonable to infer that additional
drugs are present inside the building. It may not be certain there were more
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
6
drugs inside the building, but it does not have to be certain to justify the
issuance of a search warrant. The burden of proof to get a search warrant is
probable cause not beyond a reasonable doubt. See Flores v. State, 319
S.W. 3d 697, 702 (Tex. Crim. App. 2010). And the evidence that drugs
were located at that residence, in conjunction with the tips the police had
about Appellee living there and Appellee being involved in drug trafficking,
were certainly enough to establish probable cause. See Flores, 319 S.W. 3d
at 703(finding that an anonymous tip about narcotics activity in conjunction
with the evidence of marihuana being located in the trash outside the
residence was enough to establish probable cause.) If an anonymous tip plus
drugs in the trash outside the residence is enough for probable cause then
certainly an anonymous tip plus solid evidence that drugs were located
inside the house is more than enough for probable cause.
It is likewise immaterial that the affiant had no information about the
credibility and reliability of Nathan, Jose Partida, or Ivan Casas. They were
not acting as police informants in this affair. Indeed they were effectively as
much targets of the investigation as the Appellee himself. (If any of them
had actually had cocaine, they would have sold it to the CI themselves, been
arrested for that action, and Appellee would have never even have been
involved in this case.) Since none of those three were acting on behalf of the
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
7
police, their credibility is not really at issue in the same way it would be with
a typical confidential informant, who knows the police are watching him and
thus might have incentives to lie.
Furthermore, to the extent that these three individuals’ credibility
matters at all in this case, their credibility can be logically inferred from their
actions. Drugs dealers presumably want to sell their drugs. As such it is
exceedingly unlikely that Nathan, Mr. Partida, and Mr. Casas were lying
about not having any cocaine when the CI approached them. They would
simply have no reason to lie. (Admittedly in some circumstances a drug
dealer might lie about having drugs available for sale if the dealer fears he is
being set up either by a police agent or for a robbery, but in this case if any
of these individuals had feared a trap involving the CI it is very unlikely they
would have willingly continued to stay with the CI through the entire chain
of events. As such based on their continued interaction with the CI it is
reasonable to infer they believed him to be an authentic customer and were
being truthful with him about their not having any drugs themselves.)
It likewise does not matter if Mr. Casas lied about how he obtained the
drugs once he went inside Appellee’s residence. Even if Mr. Casas stole the
cocaine once inside Appellee’s residence rather than purchased it, that would
still mean there was cocaine inside that residence at the time that Mr. Casas
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
8
entered the residence. And as already discussed, if there was cocaine inside
the residence then that information when taken in conjunction with the rest
of the affidavit (which included the reports that the Appellee was engaged in
drug trafficking), fully supports the issuance of a search warrant for that
residence.
Nor does it matter that the CI was not the one who actually purchased
the drugs inside the residence. Mr. Casas told the CI he did not have any
cocaine available for sale. [RR-I-9-10]. Mr. Casas then took the CI to
Appellee’s residence. [RR-I-10]. Mr. Casas then went into the residence
and came out with cocaine. Id. Mr. Casas then sold the cocaine to the CI.
[RR-I-11]. The only logical conclusion from this chain of events is that Mr.
Casas obtained the cocaine he sold to the Appellee from inside the residence.
And the CI witnessed each of these steps. Whether the CI saw the actual
purchase inside the residence or not therefore simply does not matter. The
circumstantial evidence based on what the CI did witness with Mr. Casas
(and what the police could also observe/hear) is more than enough to support
a reasonable inference that the cocaine Mr. Casas sold to the CI was
obtained from within Appellee’s residence. Indeed it is difficult to see how
any other conclusion could actually be reached. Therefore it is not necessary
for the CI to have witnessed the actual sale of drugs inside the residence.
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
9
His being able to establish that drugs were being kept inside the residence at
the time when his group arrived there, is by itself enough to establish the
requisite probable cause.
Therefore even if we assume in arguendo that Franks does apply to
omissions from search warrant affidavits, and we further assume that the
Appellee’s proposed Franks approach where omitted material is read back
into the affidavit to see if it can still establish probable cause once the
omitted material included is the correct way to conduct a Franks
examination over omitted material, there is still no justification for
suppression in this case because the inclusion of the omitted material at issue
here does not diminish the justification for a finding of probable cause. The
omitted material still strongly supports a finding that there was cocaine
inside Appellee’s residence at the time that the CI traveled to the location,
and that evidence in conjunction with the other evidence in the affidavit
establishes probable cause to believe there was additional contraband inside
that residence. As such even under Appellee’s own favored approach, the
trial court erred in granting the motion to suppress, and that ruling should be
reversed.
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
10
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court reverse the judgment of the trial court.
.
Respectfully submitted,
STEPHEN B. TYLER
CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLANT,
THE STATE OF TEXAS
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
11
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellant’s Brief submitted on
April 14, 2015, excluding those matters listed in Rule 9.4(i)(3) is 2,232.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
12
CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing brief has been served on
Stephen D. Jackson and Paul Morrison, 215 Simonton, Conroe, Texas
77301, Attorneys for the Appellee, Christopher Alexson Pappillion, by
depositing same in the United States Mail, postage prepaid on the day of April
14, 2015.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
13