In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-18-00300-CR
________________________
ANTHONY ALLEN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2017-411,914; Honorable Jim Bob Darnell, Presiding
March 21, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Pursuant to a plea bargain, Appellant, Anthony Allen, pleaded guilty to possession
with intent to deliver methamphetamine in an amount of four grams or more but less than
200 grams, a first degree felony.1 In accordance with the terms of that agreement, the
trial court assessed his sentence at confinement for a period of fifteen years. By a single
1 TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2017).
issue, Appellant contends the trial court erred in denying his motion to suppress because
the affidavit in support of the warrant lacked both reasonable suspicion and probable
cause. We affirm.
BACKGROUND
With the assistance of two confidential informants, Officer Daniel Merritt executed
an affidavit in support of a search warrant for Appellant’s motel room. On the same day
the warrant was issued, police officers arranged a controlled buy involving one of the
confidential informants. After the transaction occurred in a business parking lot, police
officers followed Appellant back to his motel where they executed the search warrant and
found methamphetamine.
After he was indicted, Appellant filed a pretrial motion to suppress challenging the
search of his motel room. Specifically, he asserted that Officer Merritt’s affidavit in support
of the search warrant lacked both reasonable suspicion and probable cause.
In support of the motion to suppress, Appellant filed his Brief in Support of
Defendant’s Motion to Suppress. Appellant’s arguments included claims that (1) one of
the confidential informant’s information was stale, (2) the information was not
independently corroborated, (3) the informants were not reliable and credible, and (4)
Officer Merritt’s affidavit contained conclusory recitations. The Brief in Support of
Defendant’s Motion to Suppress referenced portions of Officer Merritt’s affidavit; however,
his affidavit was not included as an exhibit to either the motion to suppress or the brief in
support thereof. Nor was the affidavit a matter of record in Appellant’s case.
2
The State answered the motion to suppress with its response. Arguing the “totality
of the circumstances,” the State claimed that the information from both confidential
informants should be considered and that Officer Merritt’s affidavit contained
corroboration of the information. The State responded to Appellant’s “stale” argument by
citing to Moore v. State, 456 S.W.2d 114, 115 (Tex. Crim. App. 1970) (noting that delay
between informant’s information and securing a warrant does not vitiate the warrant but
varies according to the facts of the individual case). After reviewing “the briefs submitted
by the parties,” the trial court denied Appellant’s motion by written order.
APPLICABLE LAW
The United States Constitution and the Texas Constitution provide that a search
warrant must be based on probable cause supported by oath and affirmation. See U.S.
CONST. amend. IV; TEX. CONST. art. I, § 9. To support a search warrant, an affidavit must
contain sufficient facts to satisfy the issuing magistrate that probable cause does in fact
exist for the warrant’s issuance. TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West Supp.
2018).
A reviewing court looks to the “totality of the circumstances” regarding the facts
contained in the affidavit and gives great deference to the magistrate’s probable cause
determination as long as he had a “substantial basis” of doing so. Illinois v. Gates, 462
U.S. 213, 236-37, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). As a reviewing court, we are
to ensure that the magistrate had a substantial basis for his conclusion. Id. at 238. In
reviewing the sufficiency of an affidavit in support of a search warrant, we are limited to
the four corners of the affidavit. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App.
1992).
3
Generally, probable cause to issue a search warrant exists where the affidavit in
support thereof, viewed in a “commonsensical and realistic manner,” demonstrates that
“under the totality of the circumstances, there is a fair probability that contraband or
evidence of a crime will be found at the specified location.” State v. McLain, 337 S.W.3d
268, 271-72 (Tex. Crim. App. 2011). It is a flexible, non-demanding standard. Id. When
a search warrant affidavit is supported by information from a confidential informant, the
informant’s credibility may be established by the affiant’s statement that the informant has
provided true and correct information in the past. Dixon v. State, 206 S.W.3d 613, 616-
17 (Tex. Crim. App. 2006).
PRESERVATION OF ERROR
Preservation of error is a systemic requirement on appeal. Ford v. State, 305
S.W.3d 530, 532 (Tex. Crim. App. 2009). Arguments challenging the sufficiency of
warrant affidavits may be waived if not properly preserved. See TEX. R. APP. P. 33.1(a).
See also Skinner v. State, No. 01-14-00748-CR, 2016 Tex. App. LEXIS 5347, at *11 (Tex.
App.—Houston [1st Dist.] May 19, 2016, no pet.) (mem. op., not designated for
publication).
ANALYSIS
It is well established that the burdens of production and persuasion generally rest
upon the movant in a motion to suppress. State v. Robinson, 334 S.W.3d 776, 782 (Tex.
Crim. App. 2011) (Cochran, J. concurring). The burden is on the defendant to raise an
exclusionary issue and to prove facts to support that assertion. Pham v. State, 175
S.W.3d 767, 774 (Tex. Crim. App. 2005).
4
Here, Appellant presents the following arguments in support of his argument that
information in Officer Merritt’s affidavit should not have been considered in issuing the
search warrant: (1) one of the confidential informant’s information was not credible or
reliable; (2) that same confidential informant’s information was not independently
corroborated; (3) that same confidential informant’s information was stale; and (4) the four
corners of the affidavit in support of the warrant failed to establish a sufficient nexus
between the evidence described in the search warrant and his motel room. (Emphasis
added).
The foundation of Appellant’s arguments is Officer Merritt’s affidavit. Numerous
times in his brief, he references the “four corners” of the affidavit. Yet, the affidavit does
not appear in the appellate record.2 It is not attached to Appellant’s motion nor to his brief
in support of his motion. Furthermore, it was never introduced into evidence or otherwise
submitted to the trial court for consideration. The only references before this court to
conduct a “four corners” review are excerpts contained in the brief in support of the motion
to suppress, which may or may not be accurate. Because the affidavit is not contained
in the appellate record for us to review its “four corners,” we are unable to determine
whether the magistrate erred in issuing the search warrant. Accordingly, Appellant is
unable to sustain his burden to show trial court error in denying his motion to suppress.
See Gandy v. State, 04-16-00509-CR, 2019 Tex. App. LEXIS 1010, at *7 (Tex. App.—
San Antonio Feb. 13, 2019, no pet. h.) (mem. op., not designated for publication) (finding
2 Generally, pleadings cannot be considered evidence unless they are admitted into evidence. In
re Campo, No. 05-13-00477-CV, 2013 Tex. App. LEXIS 9312, at *3 (Tex. App.—Dallas July 26, 2013, orig.
proceeding) (mem. op.).
5
appellant’s burden was not met where affidavit in support of challenged search warrant
was not contained in the appellate record). Appellant’s sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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