In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00021-CR
___________________________
EDWARD G. MCBROWN, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 9
Tarrant County, Texas
Trial Court No. 1553701
Before Sudderth, C.J.; Gabriel and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellant Edward G. McBrown was charged with possession of marijuana in a
usable amount of two ounces or less. See Tex. Health & Safety Code Ann.
§ 481.121(b)(1). Appellant filed a motion to suppress evidence obtained during the
search incident to his arrest. The trial court denied the motion. Appellant then
pleaded guilty, and the trial court sentenced him to two days’ incarceration in the
Tarrant County Jail. The trial court also certified Appellant’s right to appeal the
suppression ruling.
The evidence that Appellant sought to suppress was discovered during a search
incident to his arrest, which occured pursuant to a capias warrant issued as a result of
his failure to pay a judgment assessing a fine for a traffic violation. Appellant argues
that the trial court erred by finding that the warrant was supported by probable cause
because the warrant’s statements are conclusory and because no affidavit was
presented showing the basis for its issuance. In three issues, Appellant argues that the
trial court’s failure to suppress the evidence discovered during the search violated his
rights under the Fourth and Fourteenth Amendments to the United States
Constitution; article I, section 9 of the Texas constitution; and article 38.23 of the
Texas Code of Criminal Procedure. See U.S. Const. amends. IV, XIV; Tex. Const. art.
I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23. We disagree. The recitations of the
capias warrant adequately showed the basis for its issuance and thus established
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probable cause for Appellant’s arrest. Appellant made no other challenge to the
search. We affirm.
II. Factual background
The sole witness at the hearing on the motion to suppress was the arresting
officer. The arresting officer stopped Appellant’s vehicle after he was alerted by a
narcotics officer who had witnessed Appellant commit a traffic violation. Appellant
was driving without a license. A computer check revealed five possible outstanding
traffic tickets.
The arresting officer confirmed one of the warrants and placed Appellant
under arrest. The officer then conducted a search incident to the arrest and found in
Appellant’s pocket a baggie of what the officer believed to be marijuana.
The warrant at issue, styled “CAPIAS WARRANT,” was introduced into
evidence without objection. The factual recitations of the warrant stated,
GREETINGS: Whereas on 01/09/2014, before a judge of the
Municipal Court of the City of Fort Worth, Texas, EDWARD G[.]
MCBROWN, Defendant, . . . was convicted of the offense of §TC
545.104 CHANGING LANES WITHOUT SIGNAL, a judgment
was rendered by said court in favor of the state, against said Defendant
for the sum of $318.50 and all costs of cause; and there is due and
unpaid of said judgment the amount of $318.50, plus any collection fees
authorized by law.
Appellant argued that the State had the obligation to produce both the warrant and
the affidavit underlying its issuance to establish probable cause for his arrest and that
not to suppress the evidence violated his rights under the Fourth and Fourteenth
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Amendments to the United States Constitution; article I, section 9 of the Texas
constitution; and article 38.23 of the Texas Code of Criminal Procedure.1
The trial court overruled Appellant’s motion to suppress by noting,
Okay. So on the challenge of the arrest for this capias, I’m gonna deny
the motion to suppress[,] and I’ll make these observations. A capias
warrant, unlike a standard probable cause warrant -- And I also
recognize that a capias warrant, even though it seeks to define a class of
warrants that are not the same as the type of warrants that police
produce, it does have local customary interpretations that don’t really
comport with the classic nature of what a capias warrant is. But this is
more in the form of a court order.
It’s -- I’ve heard no testimony to suggest that there’s anything
incorrect about this being an accurate copy of the warrant issued in this
matter. It does contain factual recitals. It states that there was a finding
of guilty on a traffic violation that, whether this is a court cost[] or a fine,
money was assessed and money was not paid. Therefore, a warrant was
issued to enforce payment of money that had been assessed in a prior
charge. So it would -- I doubt that there is an affidavit, just like the
orders for arrest that I sign in this court on a regular basis for people
failing to appear or after several attempts to contact, failing to pay
money, or things of that nature.
So, that being the case, the Court finds that this is an adequate
summary of the reason why this warrant was issued. It is purportedly
signed by a municipal judge of the City of Fort Worth. The Court will
note in passing that the officer who testified in this case was also a Fort
Worth Police sergeant. And on that basis, the Court will find that there
was a legal authorization to take the defendant in[to] custody for failing
to comply with his obligation to, in some manner, satisfy the outstanding
balance he owed for the traffic offense that is stated in State’s Exhibit
No. 1, which was the basis of this capias being entered. So that will be
the judgment of the Court.
1
Appellant cites no distinctions in analysis between the United States
Constitution, the Texas constitution, or the Texas Code of Criminal Procedure.
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III. Standard of review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
IV. Applicable law
A municipal court may bring before it a defendant who has not paid a fine by
means of a capias pro fine. See Tex. Code Crim. Proc. Ann. art. 45.045(a) (“If the
defendant is not in custody when the judgment is rendered or if the defendant fails to
satisfy the judgment according to its terms, the court may order a capias pro fine, as
defined by [a]rticle 43.015, issued for the defendant’s arrest.”). Article 45.045 of the
code of criminal procedure further provides,
The capias pro fine shall state the amount of the judgment and
sentence[] and command the appropriate peace officer to bring the
defendant before the court immediately or place the defendant in jail
until the business day following the date of the defendant’s arrest if the
defendant cannot be brought before the court immediately.
Id. Article 45.045 references the definition of a capias pro fine found in article 43.015,
which provides,
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(2) “Capias pro fine” means a writ that is:
(A) issued by a court having jurisdiction of a case after judgment
and sentence for unpaid fines and costs; and
(B) directed “To any peace officer of the State of Texas” and
commanding the officer to arrest a person convicted of an offense
and bring the arrested person before that court immediately.
Id. art. 43.015(2).
Though the capias pro fine is issued after judgment, the Texas Court of
Criminal Appeals has held that it still must be supported by probable cause. Jones v.
State, 119 S.W.3d 766, 786 (Tex. Crim. App. 2003). In the context of a capias pro
fine, “a judgment for a traffic violation, together with a finding by the court that the
defendant has failed to satisfy its terms, will comprise sufficient probable cause to
support issuance of the capias pro fine.” Id. The question is how the existence of
probable cause to support the issuance of the capias must be established.2
In Jones, the issuance of the capias pro fine was described by the testimony of a
municipal court judge who explained the procedures of his court and why he believed
that those procedures demonstrated the validity of the capias pro fine used as a basis
for the appellant’s arrest. Id. That testimony gave “an adequate determination that
there was a reason to believe the judgments had not been satisfied in appellant’s
Appellant’s sole authority, Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App.
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1990), is inapposite because the chapter 45 warrant in that case was not an article
43.015(2) warrant.
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cases.” Id. Thus, the trial court did not abuse its discretion by finding that probable
cause existed to issue the warrant in the form of the capias. Id.
The Waco Court of Appeals applied Jones to a situation in which a defendant
was arrested on the basis of a capias pro fine, but the judge signing the capias did not
testify about the probable cause supporting its issuance. See Howard v. State, No. 10-
06-00368-CR, 2007 WL 4260525, at *2 (Tex. App.—Waco 2007, pet. dism’d, untimely
filed) (mem. op., not designated for publication). Even without the testimony of the
municipal judge, the Howard court concluded that when the capias was admitted into
evidence by agreement, it provided probable cause for the arrest:
Neither Howard nor the State offered any testimony or evidence at the
suppression hearing[] but admitted the capias by agreement. The capias
states that a judgment was entered before the municipal court against
Howard for possession of drug paraphernalia, that Howard was ordered
to pay a specific fine, and that the judgment [was] unsatisfied. No one
appears to dispute these facts. Accordingly, the existence of a judgment,
coupled with the municipal court’s finding that Howard had failed to
comply with the judgment’s terms, establishes sufficient probable cause
to support issuance of the capias pro fine. See Jones, 119 S.W.3d at 786;
see also Tex. Code Crim. Proc. Ann. art. 45.045(a) (capias pro fine may be
issued when “the defendant fails to satisfy the judgment according to its
terms”).
Id.
V. Analysis
Here, the analysis offered by the trial court tracks that of the Texas Court of
Criminal Appeals and the Waco Court of Appeals by noting that the warrant at issue
is a different breed than those that are usually the basis for an arrest. The face of the
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warrant showed an adequate basis for its issuance. No one challenged that basis, and
the warrant was admitted without objection. Thus, the trial court properly recited on
the record the warrant’s facial recitations to determine that it was valid and that it
provided probable cause for Appellant’s arrest. See, e.g., Breazeale v. State, 683 S.W.2d
446, 450 (Tex. Crim. App. 1984) (noting that the presumption of regularity created by
recitals in a judgment can be overcome only when the record otherwise affirmatively
reflects error).
Moreover, although the capias was not admitted by agreement, it was admitted
without objection. And here, as in Howard, no one disputed the capias’s recitations.
The capias recites that a judgment was rendered against Appellant and that Appellant
failed to satisfy the judgment. Thus, the unchallenged facial recitations established
that the capias was properly issued in accordance with article 45.045. See Tex. Code
Crim. Proc. Ann. art. 45.045(a). The trial court overruled Appellant’s motion to
suppress on a basis that almost precisely tracks the reasoning of Howard, with which
we agree. The trial court therefore acted within its discretion in making that decision.
Accordingly, we overrule Appellant’s three issues.
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VI. Conclusion
Having overruled Appellant’s three issues, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 3, 2019
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