in Re Mikle Gene Lee

IN THE TENTH COURT OF APPEALS No. 10-04-00286-CV In re Mikle Gene Lee Original Proceeding MEMORANDUM Opinion Mikle Gene Lee filed for divorce from Mary Lucile Lee. The parties had mediated a settlement agreement of their property division. The trial court did not accept the mediated agreement. After a jury trial, the trial court entered a decree of divorce. Lucy appealed, arguing that the trial court was required to enter a decree of divorce based on the settlement agreement. We issued an opinion affirming the trial court’s judgment. We have not yet issued our mandate. Not long after the trial court entered its divorce decree, Lucy filed suit in Bell County alleging Gene breached the mediated settlement agreement. Gene requests this Court to issue a writ of injunction prohibiting his former wife, Mary Lucile Lee, from prosecuting that lawsuit in Bell County or in any other trial court. The courts of appeals have limited injunctive powers. "Each court of appeals . . . may issue . . . all . . . writs necessary to enforce the jurisdiction of the court." Tex. Gov’t Code Ann. § 22.221(a) (Vernon Supp. 2004). A court of appeals "has no original jurisdiction to grant writs of injunction, except to protect its jurisdiction over the subject matter of a pending appeal, or to prevent an unlawful interference with the enforcement of its judgments and decrees." Ott v. Bell, 606 S.W.2d 955, 957 (Tex. Civ. App.—Waco 1980, no writ). An injunction will not lie in the courts of appeals merely to preserve the status quo pending appeal. EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426 (Tex. App.--Fort Worth 1987, orig. proceeding). Nor will injunction lie merely "to protect a party from damage pending appeal." Gibson v. Waco Indep. Sch. Dist., 971 S.W.2d 199, 204 (Tex. App.—Waco 1998) (quoting Parsons v. Galveston County Employees Credit Union, 576 S.W.2d 99, 99 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ)), Gibson vacated on other grounds, 22 S.W.3d 849 (Tex. 2000). We lack jurisdiction to issue the writ. Gene contends that this suit is a collateral attack on our jurisdiction. He also contends that he will suffer irreparable harm unless the suit in Bell County is enjoined. But we have nothing more to do in the appeal other than issue a mandate. And an injunction will not issue merely to protect a party from damage pending an appeal. Therefore, the petition is denied. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance concurring with note)* Writ denied Opinion delivered and filed October 13, 2004 [CV06] * “(Justice Vance concurs in denying the petition, but on different grounds. The majority’s opinion in the divorce appeal essentially holds that the mediated settlement agreement had nothing to do with the divorce suit. (“There was no written agreement between the parties to mediate and there was no referral by the court based on a written agreement or on the court’s own motion to mediation.” Because this court has held that the agreement was free-standing, a holding with which I disagree, we cannot now interfere in a suit for its enforcement.)” ne-height:200%'>[3] (Id. at 7.) MacEachran also argues that “no facts are set forth in the affidavit explaining how Investigator Sparks determined that” the address of the suspected place “was the residence of Appellant.” (Id. at 9.) MacEachran also argues that the warrant was “stale.” (Id. at 11 (citing Hafford v. State, 989 S.W.2d 439, 440 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).) MacEachran concedes that “where conclusory statements are used in support of probable cause, the affidavit should be reviewed absent the conclusory statements in assessing whether probable cause for a search exists.” (Br. at 11 (citing Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1984)).) Even disregarding the information supplied by the informant and prior surveillance, for the reasons stated below, the affidavit states probable cause. Next, MacEachran complains concerning the officers’ approach to MacEachran’s trailer. The affidavit continues: 6. Investigator Sparks and Investigator Adams went to the All American Texas RV Park at approximately 10:30 P.M. to conduct surveillance of Maceachran’s residence located at the suspected place. . . . . 9. . . . Investigators made contact with the occupant[] of the residence and identified [hi]m as William Loyd Maceachran W/M 09-05-1958 . . . . [sic] (1 C.R. 70 (bracketed alterations and ellipses added).) MacEachran argues that the affidavit “provides no facts asserting that the individual he contacts at” MacEachran’s trailer “is one and the same individual that was arrested and cited at Wal-mart for shoplifting.” (Br. at 6-7.) The affidavit states that the trailer was “in charge of and controlled by” a “William Loyd Maceachran (W/M DOB: 09-05-1958) as verified by an investigation conducted by Burleson Police Department reference Theft under $50 from the Wal-mart on 12-15-2004.” [sic] (1 C.R. 68.) The affidavit thus relies on information from other officers in identifying MacEachran by name, race, gender, and date of birth. It is a reasonable inference that the William Loyd Maceachran identified as the thief is one and the same as appellant William Loyd Maceachran identified as being in control of the trailer. The affidavit continues: 7. Upon first arrival Investigators smelled a very strong odor of ether common with the manufacturing of methamphetamine. 8. Investigators were able to determine the origin of the odor to be coming from the suspected place. 9. For the health and safety of the community Investigators made contact with the occupant[] of the residence and identified [hi]m as William Loyd Maceachran W/M 09-05-1958 . . . . 10. Investigator Sparks observed a hand pumped sprayer located by the side of the trailer that had been altered to create an HCL generator, commonly used in the manufacture of methamphetamine. 11. Investigator Sparks also observed a refrigerator next to the HCL generator that was emitting a strong odor of ether. 12. Investigator Sparks asked Maceachran what the spray pump was used for? Maceachran stated he had just found it. 13. Maceachran stated on his own free will that there was possibly a jar of ether located within the refrigerator. Maceachran could offer no reason why he was storing ether in this manner. 14. Maceachran’s criminal history showed two entries for Possession of Controlled Substance. [sic] (1 C.R. 70 (bracketed alterations and ellipsis added).) MacEachran concedes that the magistrate could properly have considered that the detective smelled the strong odor of ether from MacEachran’s trailer and MacEachran’s criminal record.[4] See Massey, 933 S.W.2d at 148. MacEachran complains, however, of the affidavit’s statement that the detective “observed a hand pumped sprayer located by the side of the trailer that had been altered to create an HCL generator, commonly used in the manufacture of methamphetamine.” (Br. at 10 (quoting I C.R. 90).) MacEachran argues, “The magistrate cannot determine how the ‘hand pumped sprayer’ has been altered or what changes have been made that would cause” the detective “to assert that this perfectly legal and quite common tool had become criminal in nature.” (Br. at 11.) The affidavit states the detective’s experience in investigating the manufacture of methamphetamine as follows: Your Affiant is a Peace Officer under the laws of the state of Texas as defined by the Texas Code of Criminal Procedure Article 2.12 (3). In May of 1992 your Affiant received an Associated Degree in Criminal Justice/Protective Services. Your Affiant graduated from Western Carolina University, with a Bachelor of Science Degree in Criminal Justice in May of 1994. In November of 1999 your affiant successfully completed the 146th Basic Police Academy at C.O.G. (North Texas Council of Government). Your Affiant received a Basic Peace officers Certificate from the Texas Commission on Law Enforcement Officer Standards and Education. Your Affiant has been in the field of law enforcement for over 4 years. In July 1999 the City of Burleson employed your Affiant as a patrol officer. On 10/01/2002 your Affiant was assigned to the STOP THE OFFENDER PROGRAM (S.T.O.P.) Narcotics Task Force as an investigator. The S.T.O.P. Narcotics Task Force is responsible for the enforcement of all narcotics violations within the Johnson, Hood, Somervell and Erath counties. Your Affiant has received formal training in the field of narcotics, which includes but is not limited to Basic Narcotics, Clan Lab School, Drug Identification, Raid Planning, Undercover Operations, Surveillance Techniques, Tactical Operations, Hostage Rescue, and Close Quarters Combat. Affiant has personally conducted or assisted other peace officers in numerous drug-related arrests and investigations. [sic] (1 C.R. 69); see Tex. Code Crim. Proc. Ann. art. 2.12(3) (Vernon Supp. 2006). In light of the detective’s training in the manufacture of methamphetamine and of the odor of ether, a chemical precursor to the manufacture of methamphetamine, from MacEachran’s trailer, the trial court did not err in finding that the affidavit stated a substantial basis for determining the existence of probable cause to search the trailer. Therefore, the court did not abuse its discretion in overruling the motion to suppress the evidence of the search. We overrule MacEachran’s issue. Having overruled MacEachran’s sole issue, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance concurs in the judgment.) Affirmed Opinion delivered and filed October 11, 2006 Do not publish [CR25] [1] MacEachran’s name is spelled variously throughout the record. We take the spelling “MacEachran” from his docketing statement. [2] “. . . Article I § 9 of the Texas Constitution and the Fourth Amendment of the Federal Constitution are ‘in all material aspects the same.’” Johnson v. State, 803 S.W.2d 272, 288 (Tex. Crim. App. 1990) (quoting Eisenhauer v. State, 754 S.W.2d 159[, 162] (Tex. Crim. App. 1989) [(plurality op.)]). “[A]rticle I, section 9 of the Texas Constitution ‘does not offer greater protection to the individual than the Fourth Amendment.’” Westfall v. State, 10 S.W.3d 85, 88 (Tex. App.—Waco 1999, no pet.) (quoting Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998)); see generally 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 6.11 (2d ed. 2001). [3] MacEachran concedes that the affidavit states that the informant’s information was “based on previous familiarization with the components and chemicals used to manufacture methamphetamine.” (Br. at 8-9 (quoting I C.R. 90).) MacEachran argues, “It is not clear whether such ‘familiarization’ is based upon education, classroom experience, law enforcement training, law enforcement experience, or simply experience with criminal activity.” (Br. at 9.) An affidavit need not recite the specific method of an informant’s acquaintance with methamphetamine. Long, 137 S.W.3d at 731. [4] MacEachran contends that the ether that the officers smelled is the starter fluid that he stole.