Bobby Wayne Terry v. State

NO. 07-08-0479-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MAY 15, 2009 ______________________________ BOBBY WAYNE TERRY, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 57653-A; HON. HAL MINER, PRESIDING _______________________________ Abate and Remand ________________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. After a jury trial, appellant Bobby Wayne Terry was convicted of the offense of burglary of a building. Punishment was assessed by the jury at two years confinement in a state jail facility and a fine of $1800. Appellant’s counsel has filed a motion to withdraw, together with an Anders’ brief wherein he certifies that, after diligently searching the record, he has concluded that appellant’s appeal is without merit. Along with his brief, he has filed a copy of a letter sent to appellant regarding that brief. By letter dated February 25, 2009, this court notified appellant of his right to file his own response by March 27, 2009, if he wished to do so. To date, no response has been received. In compliance with the principles enunciated in Anders, appellate counsel discussed two potential areas for appeal. One involves the trial court’s denial of a request to remove a reference to the Pardons and Parole Board from the jury charge on punishment. We agree that said issue does not involve reversible error. In the other potential issue, appellate counsel contends the trial court did not err in refusing to include a lesser-included offense instruction on criminal trespass in the jury charge during the guilt/innocence phase. In arriving at that conclusion, counsel relies solely on this court’s opinion in Salazar v. State, 259 S.W.3d 232, 234 (Tex. App.–Amarillo 2008, pet. granted) in which we held that criminal trespass was not a lesser-included offense of burglary of a habitation because the indictment in that case did not allege that the defendant had notice that entry was forbidden. However, the Court of Criminal Appeals has granted a petition for discretionary review in that case so the matter is not resolved. Moreover, the question at bar is whether criminal trespass is a lesser-included offense of burglary of a building as opposed to a habitation. The Court of Criminal Appeals held in Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975), that the notice requirement was satisfied by reference to a building not then open to the public because such a place was obviously designed to exclude an intruder. Although we noted in Salazar that Day has been overruled by Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), to the extent that it conflicts with Hall, we also noted in our opinion on rehearing that the Penal Code defines a building as an enclosed structure while a habitation is not so defined. Salazar v. State, 259 S.W.3d at 235. Therefore, it is at least arguable in this case that criminal trespass is a lesser-included offense of burglary of a building and there is some evidence that appellant is guilty only of the lesser offense. Accordingly, we grant counsel’s motion to withdraw and abate the appeal and remand to the 47th District Court of Potter County, Texas. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Upon remand, the trial court shall appoint a different attorney to represent appellant in this appeal. The trial court shall further order the newly appointed counsel to file an appellant’s brief, pursuant to the Texas Rules of Appellate Procedure, developing the aforementioned arguable grounds and all other grounds that might support reversal or modification of the judgment. The deadline for filing the appellant’s brief with the clerk of this appellate court is June 30, 2009, unless abated by this court. Thereafter, any responding brief which the State may care to submit shall be filed within 30 days after the filing of the appellant’s brief. Next, the trial court shall cause the name, address, and state bar number of the newly appointed counsel to be included in a supplemental transcript. That transcript shall be filed by the trial court with the clerk of this court on or before June 1, 2009. It is so ordered. Per Curiam Do not publish. business utilizing machinery or a "machine press." And, like many other things omitted by the affiant, no one explained the relationship between the anhydrous ammonia, psuedophed, baggies, coolers, thermos, milky white substance poured from a jar, "bang," latex gloves, and black nylon bags to the presence of methamphetamine, amphetamine, their manufacture or to any other type of potential criminal activity. These omissions are pivotal for the affidavit must illustrate not only that a specific offense has been committed but also that the specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed the offense. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2004). Here, this court, the trial court and the judge who issued the warrant were left to guess at the nexus, if any, between the matter described in the affidavit and criminal activity. Nor can one reasonably infer that because the tipster purportedly knew what methamphetamine was and was familiar with the paraphernalia used in its manufacture then the items of and matter about which he informed Menchaca and Lange constituted such paraphernalia or criminal activity. A simple example proves the fallacy of such an inference. An informant coupling a description of his experience with the manufacture of methamphetamine to a statement that he not only saw ten pounds of flour in a case hidden in a corner, three quarts of milk in a thermos containing some script, five pounds of chocolate chips, two pounds of butter in a cooler, and a case of pecans placed behind a portable oven and but also heard certain individuals say there were about to cook hardly makes the ingredients for grandma's chocolate chip cookies the contents of methamphetamine. Without someone familiar with the process of manufacturing the drug stating that the items seen or conduct perceived were somehow related to that process, any attempt to conclude that the items and conduct seen must relate to the drug or its manufacture is conjecture. Nor do we accept the State's postulation that the affidavit was sufficient because "it is common knowledge what items are most often utilized in the manufacture of methamphetamine." Common knowledge consists of matter "so well known to the community as to be beyond dispute." Ritz Car Wash, Inc. v. Kastis, 976 S.W.2d 812, 814 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). The formula for or ingredients of methamphetamine and amphetamine or the process by which either is made hardly falls within that category, and we rue the day it does. That same may also be found on the internet, according to the State, does not somehow elevate it to that status either. Indeed, having to investigate the annals of electronic data to discover particular information itself suggests that the subjects being researched are far from common knowledge. Moreover, if the presence of information on the worldwide web were alone the test for labeling matter common knowledge, then most everything would be such for most anything can be found there if the researcher is sufficiently patient and persistent. Indeed, one can also find on the internet information about the Superstring Theory and the manner in which it resolves the mathematical incompatibility of the foundational pillars of quantum mechanics and the General Theory of Relativity. Yet, that is no reason to conclude that the Superstring Theory is now part of the everyday, incontestable knowledge of the community. So, mere presence on the internet is far from determinative of how well-known a particular subject is. Nor can the specialized knowledge of a particular magistrate or affiant be imputed into the affidavit. Again, the rule of law prohibits us from perusing anything other than the four corners of the document. Any specialized information lying within the mind of a police officer or jurist and garnered through the years falls outside that realm. As said in Cassias, "[i]t is one thing to draw reasonable inferences from information clearly set forth within the four corners of an affidavit . . . [and] quite another . . . to read material information into an affidavit that does not otherwise appear on its face." Cassias v. State, 719 S.W.2d at 590. So too do we reject the State's suggestion on appeal that it "is a reasonable inference based upon the hidden location of the anhydrous ammonia within a machine shop that the . . . ammonia was illicitly acquired and was improperly stored in a receptacle not designed for the storage" of same. (1) Immediately noticeable is the absence of any explanation regarding how one can logically jump from the proposition that something is hidden to the conclusion that it must be contraband. Parents hide presents from their children; that does not mean the presents were obtained unlawfully or that the presents consist of contraband. Hiding something may permit one to infer that someone does not want the item to be easily found. Yet, it does not alone reasonably permit one to infer that the object being hidden is somehow tied to criminal activity. To surmise otherwise would be to again delve into conjecture, and that we cannot do. Appellant's third issue is meritorious. Thus, we conclude that the affidavit did not provide substantial basis for the conclusion that a specific offense had been committed, and hold that the trial court erred in failing to grant the motion to suppress. So too do we find that the error was harmful since the evidence obtained upon execution of the defective warrant provided the basis for appellant's conviction. And, since appellant's other criticisms of the affidavit need not be addressed at this time, we reverse the judgment and remand the cause to the trial court. Brian Quinn Justice Publish. 1. We assume arguendo that the ammonia was hidden. In doing so, we also note that Menchaca failed to explain how his tipster arrived at that conclusory observation. Also worthy of note is the line of authority holding that conclusions appearing in an affidavit carry little weight. Cassias v. State, 719 S.W.2d 585, 588 (Tex. Crim. App. 1986) (stating that conclusory utterances "establish little if anything").