Jerry Wayne Bannister v. State

NO. 07-06-0280-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D OCTOBER 17, 2008 ______________________________  JERRY WAYNE BANNISTER, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE COUNTY COURT AT LAW NO. 2 OF HENDERSON COUNTY; NO. 2005-0854CL2; HONORABLE NANCY PERRYMAN, JUDGE _______________________________  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. DISSENTING OPINION           My colleagues agree that the trial court’s judgment must be reversed, but have different reasons for their conclusion. Respectfully disagreeing with both their opinions, I would affirm the trial court’s judgment, and thus must dissent from the Court’s judgment reversing the trial court.             Franks hearing           Chief Justice Quinn finds persuasive appellant’s contention the trial court reversibly erred by not giving him a hearing on his Franks motion. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Although I agree trial courts should err on the side of giving, rather than denying, hearings, I believe the trial court here did not abuse its discretion by denying appellant a Franks hearing.           Appellant’s motion for a Franks hearing asserted the investigator’s affidavit contained two false statements, made deliberately or with a reckless disregard for the truth. The motion attacked the investigator’s statement, “Affiant is familiar with the home of [appellant]. The pictures Affiant has viewed are pictures taken of the home, carport and outbuildings of [appellant]. Affiant has been to the above-described residence, carport and outbuildings and it is the same residence, carport and outbuildings where [appellant] presently lives.” The motion asserted the photographs were not taken at appellant’s home but at another home. Appellant appended to his motion additional photographs of his home and of the home at which the motion said the photographs incorporated into the search warrant affidavit were taken.           Assuming that the motion and its appended photographs provide a sufficient preliminary showing that the affidavit’s statement that the photographs the affiant viewed were taken at appellant’s residence was false, I nonetheless would find the motion gave the trial court no basis for a conclusion the investigator made the false statement deliberately or with reckless disregard for the truth. I do not believe we can infer from the photographs themselves that the affidavit was made with a reckless disregard for the truth. See Cates v. State, 120 S.W.3d 352, 357-58 (Tex.Crim.App. 2003) (motion gave statement of reasons supporting assertion officer knew information in affidavit was false, thereby satisfying Franks); Dancy v. State, 728 S.W.2d 772, 782-83 (Tex.Crim.App. 1983) (applying requirement of intentional or reckless false statement). See generally George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure §§ 6.38, 6.42 (2d ed. 2001) (discussing Franks requirement that false statement be made with accompanying mental state). Without a statement of reasons, appellant’s assertion a false statement was made deliberately or with reckless disregard for the truth was merely conclusory. Cates, 120 S.W.3d at 355 (to be entitled to a hearing, a defendant must make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit; the challenger’s attack must be more than conclusory).           Appellant’s Franks motion also challenged as false the investigator’s statement, “Affiant has also seen marijuana in his experience as a peace officer and that [sic] one of the pictures shows what Affiant believes to be marijuana in the hand of [appellant].” Appellant attached to his motion an enlarged copy of the photograph referred to in the affidavit. His motion asserted the enlarged copy “clearly show[s] that Affiant could not identify anything in [appellant’s] hands much less marijuana.” The photograph shows appellant and another man. The other man is wearing the mask apparatus and appellant is holding one hand under the bowl of the pipe while reaching toward the bowl with his other hand. It appears appellant is holding something in his extended fingers, about to place the item in the pipe. From the copies of the photographs in the appellate record, we agree it is difficult to identify what, if anything, appellant is holding in his fingers. The statement in the affidavit, however, is that the picture shows “what Affiant believes” to be marijuana. Even the enlarged photograph, which the investigator of course had not seen when he signed the affidavit, does not disprove that appellant is holding marijuana. And, given the nature of the pictured apparatus and the context of the photograph, his stated belief that appellant is shown holding marijuana is not unreasonable.            I conclude the trial court reasonably could have found that appellant’s Franks motion did not make a substantial preliminary showing that the statement regarding marijuana in the affidavit was false. Even if I am mistaken in that conclusion, I would conclude further that deleting the statement from the affidavit would not have rendered it insufficient to support issuance of the search warrant. The warrant sought drug paraphernalia, not marijuana.           For those reasons, I would find the trial court did not abuse its discretion by denying a Franks hearing.           Probable cause           Although the magistrate’s determination of the existence of probable cause for the issuance of the warrant necessarily was made solely from his review of the officer’s affidavit and its accompanying photographs, and we have the same information in front of us, our review of the magistrate’s decision to issue the warrant is not de novo, but one in which we must give great deference to the magistrate’s finding of probable cause. Rodriguez v. State, 232 S.W.3d 55, 59-60 (Tex.Crim.App. 2007); Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004) (Cochran, J., dissenting). See also Gates v. Illinois, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (noting “that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of a de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts’”).           I would find that the affidavit and photographs gave the magistrate here a substantial basis to conclude there was a fair probability that drug paraphernalia would be found at appellant’s residence. See Rodriguez, 232 S.W.3d at 60 (describing probable cause and standards for review of issuance of warrant).           The affidavit told the magistrate that the peace officer affiant knew appellant, and had been to appellant’s home and was familiar with it; that the photographs depicting the presence of the device were taken at appellant’s home; that the affiant had “learned” appellant was married on April 23; that on the date of the affidavit, May 4, the affiant saw wedding decorations at appellant’s home; and that the photographs had been obtained from “CVS in Athens, Texas” by search warrant on May 3.           The affidavit stated the affiant’s belief that the photographs were taken at appellant’s wedding reception. Justice Pirtle is correct that the affidavit and photographs do not demonstrate that the photographs were taken at the wedding reception, or that they were taken on April 23. But the photographs depict an apparent social gathering of some kind, and, given the other information presented to the magistrate, I think an inference agreeing with the officer’s belief that the photographs were taken at the wedding reception was reasonable.           Appellant also argues that the magistrate could draw no inference about the date the photographs were made from the fact they were seized from a photo processor on May 3. He points out that film may be taken to a processor months, if not years, after the photographs were taken. The argument reflects the kind of second-guessing that is improper under the standard of review that binds us here. Rodriguez, 232 S.W.3d at 60-61; Davis v. State, 202 S.W.3d 149, 157 (Tex.Crim.App. 2006). See also Brown v. State, 243 S.W.3d 141, 145 (Tex.App.–Eastland 2007, pet. ref’d) citing Gates, 462 U.S. at 235-36 (judicial review must take into account that many warrants are issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than that used in formal legal proceedings). Certainly photos may be processed long after they were taken, and many of us have delayed having photos processed for months or years. Many people, however, do not engage in that kind of delay, and I think the magistrate was entirely free to draw the inference that these photographs were at the processor because they were recently taken.           In my judgment, the magistrate was not required to infer anything to conclude the mask device appearing in the photographs likely constituted an item of drug paraphernalia. That conclusion simply required the magistrate to apply his common sense to the scenes depicted in the photographs. Appellant is seen in the photographs assisting three different people with an apparatus similar to a gas or oxygen mask with a pipe attached. Each of the three people appellant is assisting is wearing the apparatus, its mask covering the wearer’s nose and mouth. In one photograph, appellant appears to be placing something in the bowl of the pipe. In another, appellant appears to be lighting the pipe. Further, the officer’s affidavit stated he had experience and training in drug investigations, and stated his belief that the apparatus was a form of “marijuana pipe.” The affidavit also described the apparatus as appearing to be “a device or apparatus designed or adapted to be used illegally to inhale marijuana.” The affidavit and photographs gave the magistrate ample basis for a conclusion the apparatus was drug paraphernalia.           Appellant argues none of the photographs depict him exercising actual care, custody, control or management of the mask. I disagree. One of photographs shows him adjusting the straps of the mask around the head of another person, actions that constitute control of the mask.           Further, as depicted in the photographs, the mask device was not a consumable or perishable item, but one of “enduring utility to its holder.” Swearingen, 143 S.W.3d at 813 (Cochran, J., dissenting) quoting Andresen v. State, 24 Md.App. 128, 331 A.2d 78, 106 (Md. Ct. Spec. App.1975). The magistrate could infer that its holder would keep it following its use on the occasion shown in the photographs. Granted, an inference that appellant was the holder was required. But, again, I think the information given the magistrate permitted such a reasonable inference. The magistrate was told the device was being used at appellant’s home. The photographs showed three different people wearing the mask, but appellant was the common denominator in the photographs, assisting each of the three people with its use. Of those shown in the photographs, appellant had the most frequent contact with the device. Case law reminds us that probable cause deals with probabilities. Rodriguez, 232 S.W.3d at 62. See also Dixon v. State, 206 S.W.3d 613, 619 n.20 (Tex.Crim.App. 2006), citing Gates, 462 U.S. at 231 (“[i]n dealing with probable cause, as the very name implies, we deal with probabilities”).           Probable cause cannot be founded on merely conclusory statements of the affiant’s belief. Rodriguez, 232 S.W.3d at 61. Here, the affidavit and photographs provided the magistrate substantially more information than such conclusory statements. Considering the totality of the circumstances presented by the affidavit and its attached photographs, and given the deference we owe to the magistrate’s determination of probable cause, I would find the magistrate had a substantial basis for a common-sense conclusion that the device sought by the warrant probably still could be found at appellant’s residence. See Rodriguez, 232 S.W.3d at 62 (stating standard).           Based on the foregoing, I would affirm the trial court’s judgment. Because the Court does not, I respectfully dissent.                                                                                                                                                       James T. Campbell                                                                                    Justice Do not publish. er 3.25in right 6.5in; font-size:11.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:Arial; mso-bidi-language:EN-US;} p.MsoFooter, li.MsoFooter, div.MsoFooter {mso-style-priority:99; mso-style-link:"Footer Char"; margin-top:0in; margin-right:0in; margin-bottom:10.0pt; margin-left:0in; line-height:115%; mso-pagination:widow-orphan; tab-stops:center 3.25in right 6.5in; font-size:11.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:Arial; mso-bidi-language:EN-US;} p.MsoCaption, li.MsoCaption, div.MsoCaption {mso-style-noshow:yes; mso-style-priority:35; mso-style-qformat:yes; mso-style-next:Normal; margin-top:0in; margin-right:0in; margin-bottom:10.0pt; margin-left:0in; mso-pagination:widow-orphan; font-size:9.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:Arial; color:#4F81BD; mso-bidi-language:EN-US; font-weight:bold;} span.MsoFootnoteReference {mso-style-priority:99; 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mso-endnote-separator:url("07-10-0284-CR%20%20Opinion_files/header.htm") es; mso-endnote-continuation-separator:url("07-10-0284-CR%20%20Opinion_files/header.htm") ecs;} @page WordSection1 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-title-page:yes; mso-footer:url("07-10-0284-CR%20%20Opinion_files/header.htm") f1; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} --> NO. 07-10-0284-CR  IN THE COURT OF APPEALS  FOR THE SEVENTH DISTRICT OF TEXAS  AT AMARILLO  PANEL C  APRIL 13, 2011     DEXTER WAYNE GREENE, APPELLANT  v.  THE STATE OF TEXAS, APPELLEE     FROM CRIMINAL DISTRICT COURT NO. THREE OF TARRANT COUNTY;  NO. 1160937D; HONORABLE ELIZABETH BERRY, JUDGE    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION            Appellant, Dexter Wayne Greene, pled guilty in open court to two counts of sexual assault of a child[1] and was sentenced to two consecutive eighteen year sentences.[2] In a single point of error, Appellant asserts the trial court violated his right to due process guaranteed by the Fourteenth Amendment of the United States Constitution by excluding evidence of his written and recorded statements to the police during his punishment trial. We affirm.  Background            On July 14, 2009, a Tarrant County Grand Jury returned an indictment against Appellant alleging that he intentionally and knowingly caused the sexual organ of W. H., a child younger than seventeen years of age who was not Appellant's spouse, to contact Appellant's mouth on April 1 and May 1 of 2008, Counts One and Two respectively. Appellant subsequently pled guilty to both counts and a punishment trial was held before a jury.            Prior to the punishment trial, the State successfully moved to prohibit any mention of Appellant's oral or written statements to the police on the grounds that the statements were self-serving and inadmissible hearsay. At the punishment trial, Sergeant Detective Tom Milner testified on direct examination, in pertinent part, as follows: STATE:         [W. H.] didn't ask any adults for help, did he? MILNER:       No. STATE:         [W. H.] tried to handle it himself? MILNER:       Yes. STATE:         In fact, [W. H.] tried to push him off, didn't he? MILNER:       [W. H.] did say that he had a fight with him, yes. STATE:         But, I mean, independent of pushing him off, the fight was later,                           wasn't it? MILNER:       Yes. STATE:         [W. H.] tried to push him off one time. Another time when the defendant tried to get [W. H.] to go to sleep, that's when the fight began? MILNER:       Yes. STATE:         What did [W. H.] do? MILNER:       [W. H.] stated he hospitalized [Appellant], cracking his ribs. STATE:         [W. H.] hurt him? MILNER:       Yes. STATE:         [W. H.] wanted it to stop, and [Appellant] wouldn't take no for an answer? MILNER:       No.            On cross examination, Detective Milner testified, in pertinent part, as follows: DEFENSE:   Did you just state that [W. H.] offered that he---I'm sorry.                               What did you just say about the fight? MILNER:       Said that he hospitalized [Appellant]. DEFENSE:   All right. And [W. H.] gave you a reason why? MILNER:       He said that [Appellant] was trying to get him to go to sleep, so Appellant could perform sexual acts on him. DEFENSE:   And do you have any reason to believe that there's anything that explains or contradicts that? MILNER:       No.            Appellant then sought to introduce his out-of-court oral and written statements to Detective Milner to explain or contradict Milner's testimony regarding W. H.'s reasons for breaking Appellant's ribs and hospitalizing him.[3] Appellant asserted that the State "opened the door" in its direct examination of Milner and Appellant's statements were necessary mitigation evidence regarding whether the sexual acts were forced or consensual. The State asserted that no evidence of Appellant's statements was offered in Detective Milner's direct examination and it was defense counsel that "opened the door" to whether other evidence existed that explained or contradicted Detective Milner's account of W. H.'s motivation for breaking Appellant's ribs. The trial court denied Appellant's request.            At the trial's conclusion, the jury found Appellant guilty of Counts One and Two in the indictment and sentenced Appellant to two consecutive sentences of eighteen years confinement.  This appeal followed. Discussion            Appellant asserts that his own out-of-court statements were admissible as mitigation evidence because the statements directly contradicted Detective Milner's testimony that W. H. had told him that he was fending off Appellant's sexual advances when he cracked Appellant's ribs. Further, Appellant argues that, due to Detective Milner's blanket declaration that he was unaware of any evidence that contradicted or explained W. H.'s version of why he fractured Appellant's ribs, the jury was given the false impression that Appellant was physically aggressive towards W. H. Appellant asserts this created a false impression that led the jury to assess near-maximum sentences. The State counters contending the trial court correctly excluded Appellant's statements because they were inadmissible hearsay and unnecessary to explain or contradict any evidence first offered by the State. Standard of Review            We review a trial court's decision to admit evidence under an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007) (citing Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005)). A trial court abuses its discretion only when the decision lies "outside the zone of reasonable disagreement." Id.  Self-serving Statements            The general rule in Texas is that self-serving statements are generally inadmissible as proof of the facts they assert. Allridge v. State, 762 S.W.2d 146, 152 (Tex.Crim.App. 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989). Testimony by third persons as to an accused's self-serving declarations are hearsay and thus inadmissible. Moore v. State, 849 S.W.2d 350, 351 n.1 (Tex.Crim.App. 1993) (citing DeRusse v. State, 579 S.W.2d 224, 233 (Tex.Crim.App. 1979)).            There are exceptions, however, to this general rule. Allridge, 762 S.W.2d at 152. A self-serving statement may be admissible if the statement is: (1) part of the res gestae of the offense or arrest, (2) part of a statement or conversation already offered by the State, or (3) necessary to explain or contradict evidence first offered by the State. Id. (citing Singletary v. State, 509 S.W.2d 572, 576 (Tex.Crim.App. 1974)). The theory behind the third exception is to prevent the fact finder from being misled or perceiving a false, incorrect impression when hearing only a part of an act, declaration, conversation, or especially, a writing. Reado v. State, 690 S.W.2d 15, 17 (Tex.App.--Beaumont 1984, pet. ref'd).[4]            Here, Appellant makes no contention that his statements were part of the res gestae of the offense, and the record does not show that the State made any effort to proffer any portion of Appellant's statements in its case-in-chief or at any other time. Therefore, Appellant is unable to prove either the first or second exceptions.            In addition, there is no showing that Appellant's out-of-court statements to Detective Milner were necessary to correct a false or incorrect impression created by Detective Milner's testimony regarding W. H.'s self-described motivation for injuring Appellant. Here, Appellant sought to use his out-of-court statements to contradict or assert an alternative version of the events described by W. H. through Detective Milner's testimony. As such, Appellant's statements were not necessary to clear up any misconceptions for the jury regarding how or why the events described by W. H., through Detective Milner's testimony, occurred. Detective Milner's account of W. H.'s statement regarding Appellant's rib injury was complete. That the State did not present exculpatory or explanatory testimony favoring Appellant in its case-in-chief does not equate to misleading the jury or leaving the jury with only a partial or incomplete version of the facts. In fact, the State did proffer W. H. as a witness during its case-in-chief and during cross-examination, W. H. indicated that he injured Appellant's ribs while they were playing on Appellant's living room floor              Further, it has been held that, when the accused does not take the stand, self-serving statements are not admissible when they are merely contradictory to some act or declaration first proffered by the prosecution. Starks v. State, 776 S.W.2d 808, 811 (Tex.App.--Fort Worth 1989, pet. ref'd) (citing Reado, 690 S.W.2d at 17). Here, Appellant did not testify. Therefore, if the trial court had admitted Appellant's statements, there would have been no opportunity to cross-examine Appellant on his statements to Detective Milner. Under the circumstances, to admit Appellant's self-serving statements in the State's case-in-chief would permit any defendant to place his version of the facts before the jury through hearsay statements without being subject to cross-examination. See Reado, 690 S.W.2d at 17 ("To adopt Appellant's position would mean that all self-serving statements by an accused would be admissible.") Accordingly, we find the trial court did not abuse its discretion in excluding Appellant's self-serving statements.[5]            Renteria v. State, 206 S.W.3d 689 (Tex.Crim.App. 2006), is of no assistance to Appellant. In Renteria, the Criminal Court of Appeals determined it was error not to admit a defendant's self-serving statement to police wherein he expressed remorse after the State presented expert testimony at trial, based on hypotheticals supported by the record, that a person like the defendant would be a future danger to society in part because the hypothetical person was unremorseful. Id. at 694-98. Unlike Renteria wherein the State depicted the defendant as unremorseful through hypotheticals, here, Detective Milner's testimony merely described W. H.'s account of his motivation for injuring Appellant while saying nothing of Appellant's state of mind or motivation at the time he was injured. As such, this case is more like Starks, supra, wherein the trial court properly excluded a defendant's self-serving statement that his gun went off accidently as opposed to intentionally; Starks, 776 S.W.2d at 811, or Walck v. State, 943 S.W.2d 544 (Tex.App.--Eastland 1997, pet. ref'd), wherein the trial court properly excluded a defendant's self-serving statements to his psychologist intended to establish his state of mind at the time of the offense. Id. at 545. In both cases, as here, the excluded statement does not contradict an act or declaration, but instead merely seeks to contradict the State's evidence of intent. Appellant's single point of error is overruled. Conclusion            The trial court’s judgment is affirmed.                                                                                                                                                                     Patrick A. Pirtle                                                                                         Justice Do not publish. [1]See Tex. Penal Code Ann. § 22.011(a)(2) (West Supp. 2010). [2]In a separate cause number, Appellant was also convicted of a third offense of sexual assault of a child and assessed a five year sentence to be served concurrently with the first of his two eighteen year sentences.   [3]In his oral and written statements to Detective Milner, Appellant described W. H. as an aggressor who broke Appellant's ribs when he refused to perform sexual acts on W. H. [4]This is the so-called rule of optional completeness, a common-law doctrine that is a recognized exception to the hearsay rule. See Walters, 247 S.W.3d at 218. This rule is one of admissibility and permits the introduction of otherwise inadmissible evidence when the evidence is necessary to fully and fairly explain a matter "opened up" by the adverse party. Id. (citing Parr v. State, 557 S.W.2d 99, 102 (Tex.Crim.App. 1977)). That said, however, simply "opening up the door," does not automatically require admission of otherwise inadmissible evidence under the rule of optional completeness. Sauceda v. State, 129 S.W.3d 116, 122 (Tex.Crim.App. 2004); Kipp v. State, 876 S.W.2d 330, 337 (Tex.Crim.App. 1994). Rule 107 of the Texas Rules of Evidence indicates that, in order to be admitted, the omitted portion of the statement must be “on the same subject” and must be “necessary to make it fully understood." Tex. R. Evid. 107. [5]Even if Appellant's cross-examination of Detective Milner may have somehow misled the jury or created a false impression in their minds as Appellant suggests, this does not make his self-serving out-of-court statements admissible. Renteria v. State, 206 S.W.3d 689, 705 (Tex.Crim.App. 2006). Â