Newman Mikey Richard v. State

Affirmed and Memorandum Opinion filed July 15, 2008 Affirmed and Memorandum Opinion filed July 15, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00045-CR ____________ NEWMAN MIKEY RICHARD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1053448 M E M O R A N D U M  O P I N I O N Appellant Newman Mikey Richard appeals the trial court=s denial of his motion to suppress evidence, claiming that the affidavit upon which the search warrant was based contained (1) stale information, and (2) reckless material allegations made with a disregard for the truth. We affirm. I. Factual and Procedural Background On January 11, 2006, a federal magistrate judge issued a warrant to search a Houston apartment in which appellant lived. The magistrate found probable cause existed to issue a warrant based on an affidavit by Special Agent Jeffrey Martin of the Drug Enforcement Administration (DEA). In his affidavit, Special Agent Martin stated that appellant had been involved with a drug-trafficking organization in the Virgin Islands. Special Agent Martin attested that, starting nine months before the warrant was issued, DEA agents in St. Croix, Virgin Islands, had conducted an investigation over the course of six months that involved court-authorized wiretaps on two telephones of suspected drug traffickers. He further asserted that during this investigation, appellant had been in contact with the suspected St. Croix traffickers and had shipped packages of marijuana to these traffickers in St. Croix. The packages were intercepted by United States postal inspectors. In his affidavit, Special Agent Martin attested that the factual assertions within the affidavit were either based upon his personal knowledge or upon information relayed to him from other sworn law enforcement officers. In later paragraphs, Special Agent Martin stated that appellant=s voice was identified on the St. Croix DEA=s telephone recordings. Law enforcement officers executed the search warrant. Based upon the evidence found in the search, appellant was indicted in state court proceedings for possession of cocaine with intent to deliver. Before trial, appellant filed a motion to suppress all evidence obtained pursuant to the warrant. At a hearing on this motion, Special Agent Martin testified he had not personally heard the tapes and would not have been able to identify appellant=s voice because he had never met appellant. Appellant argued that because Special Agent Martin had not personally heard the recordings, all statements in which he impliedly identified appellant=s voice were deliberate falsehoods, demonstrating a reckless disregard for the truth. After the hearing, the trial court denied appellant=s motion, expressly finding that Special Agent Martin=s statements were not made with reckless disregard for the truth. Appellant later filed a motion to reconsider the trial court=s ruling on the motion to suppress, arguing for the first time that the information in the search affidavit was stale. The trial court denied this motion without a hearing. Appellant then pleaded Aguilty@ to possession of cocaine. After finding him guilty, the trial court assessed punishment at nine years= confinement. II. Issues and Analysis A. Did the trial court err in denying appellant=s motion to suppress when the facts upon which the search warrant was based occurred at least three months before the warrant was issued? In his first issue, appellant argues that the trial court erred in denying his motion to suppress because some of the information contained in the affidavit upon which the search warrant was based occurred three to nine months before the warrant was issued. For a search warrant to issue, there must be a fair probability that the subjects of the search will be found on the premises. See Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (stating that this is a Aflexible and nondemanding@ standard). Probable cause supporting issuance of a warrant exists Awhere the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued.@ Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986). Appellant asserts that the information in the affidavit was too old to justify a conclusion that the subjects of the search were at his apartment when the magistrate issued the warrant. Appellant urges that because the information was stale, the warrant lacked probable cause. Appellant failed to preserve error on the issue of staleness because he did not raise the issue in his motion to suppress or at the pre-trial hearing on the motion. To preserve a complaint for appellate review, a party generally must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint. Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873 886B87 (Tex. Crim. App. 2002); see also Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (stating that to preserve an issue for appellate review there must be a timely objection stating the legal basis for the objection). A motion to suppress evidence is only a specialized objection to the admissibility of that evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (op. on reh=g). An objection that sets forth one legal basis at the trial level may not be used to support a different basis on appeal. See id; Roach v. State, No. 14-06-00756-CR, 2008 WL 1862479, at *2B3 (Tex. App. Houston [14th Dist.] Apr. 29, 2008, no pet.) (mem. op., not designated for publication). Appellant=s sole argument in the motion to suppress was that the affidavit contained material false statements made with a reckless disregard for the truth. Appellant did not argue that the search warrant was issued upon an affidavit comprised of stale information. Furthermore, under the Texas Code of Criminal Procedure, Awhen a criminal case is set for [a] pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown.@ Tex. Code Crim. Proc. Ann. art. 28.01, _ 2 (Vernon 2006). Appellant did not object to the affidavit based on staleness in his original motion; he did so only on the motion to reconsider, which was filed more than a month after the hearing on the motion to suppress. The record does not reflect that the trial court granted appellant permission to raise the staleness issue for good cause as required by article 28.01. Tex. Code Crim. Proc. Ann. art. 28.01, _ 2. Because appellant failed to preserve error regarding the alleged staleness of information in the search affidavit, he has waived his complaint. Accordingly, we overrule his first issue. B. Did the trial court err in denying appellant=s motion to suppress when the affidavit upon which the search warrant was based contained information learned from other law enforcement officers? In appellant=s second issue, he complains that Special Agent Martin=s affidavit contained false statements made with reckless disregard for the truth when Special Agent Martin stated that appellant=s voice was identified on recorded telephone calls obtained during an investigation. In paragraph five of his affidavit, Special Agent Martin swore that the specific facts enumerated in the paragraphs that followed were either known to him or relayed to him by other officers. In later paragraphs, Special Agent Martin attested that a St. Croix drug dealer was in contact with a Houston resident identified as appellant. At the hearing on appellant=s motion to suppress, Special Agent Martin testified that he had not personally heard the tapes, but that he relied on information he had learned from other law enforcement officers, who, in turn had identified appellant as the recipient of those calls. Appellant argues that the paragraphs within the affidavit, when taken on their own, contain statements made with reckless disregard for the truth because Special Agent Martin did not personally identify appellant as the recipient of those phone calls. Appellant argues that these allegedly false statements were made with reckless disregard for the truth and should have been struck from the affidavit. Appellant argues that no probable cause existed without those statements, and therefore the trial court erred in denying appellant=s motion to suppress. We generally review a trial court=s ruling on a motion to suppress under an abuse-of-discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). We view the evidence adduced at a suppression hearing in the light most favorable to the trial court=s ruling. Champion v. State, 919 S.W.2d 816, 818 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). The trial court is the sole judge of the credibility of witnesses and the weight to be given to their testimony at a hearing on a motion to suppress. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We afford almost complete deference to the trial court=s determination of historical facts supported by the record, as well as to mixed questions of law and fact dependent on the determination of a witness=s credibility and demeanor. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 1997) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). When, as in this case, the court issues findings of fact, we determine first whether the trial evidence, viewed in the light most favorable to the trial court=s ruling, supports these fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We then review the trial court=s legal ruling de novo unless the trial court=s supported-by-the-record explicit fact findings are also dispositive of the legal ruling. Id. When a search warrant affidavit is challenged on whether it is legally sufficient to show probable cause, the trial court is usually limited to the Afour corners@ of the affidavit. Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App. 2003). However, an accused, as in this case, may challenge the truthfulness of factual statements made in an affidavit supporting a search warrant. See Franks v. Delaware, 438 U.S. 154, 156, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978). In Franks v. Delaware,[1] the United States Supreme Court held that if a defendant can establish by a preponderance of the evidence that a falsehood made with reckless disregard for the truth was included in a search affidavit, and the falsehood was material to establish probable cause, the falsehood must be excised from the affidavit. Id.; see Kelly, 204 S.W.3d at 818. If the warrant fails to establish probable cause when the false statements are removed, the fruits of the search are excluded from evidence. See Franks, 438 U.S. at 156, 98 S. Ct. at 2676; Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996). Franks does not require that all facts in an affidavit necessarily be correct, but rather that the information put forth Ais believed or appropriately accepted by the affiant as true.@ Franks, 438 U.S. at 164B65, 98 S. Ct. at 2681. A[P]robable cause may be based on hearsay or information received from informants.@ Id. When making a probable cause determination, a magistrate judge may rely upon a police officer=s affidavit based either on that officer=s knowledge or knowledge gathered from other officers. See United States v. Ventresca, 380 U.S. 102, 111, 85 S. Ct. 741, 747, 13 L. Ed. 2d 684 (1965); Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). Appellant argues that because Special Agent Martin relied upon other sources of information to claim that the St. Croix traffickers were in contact with appellant, this claim was made with a reckless disregard for the truth. Appellant bases his argument solely on Hass v. State, wherein a police officer signed an affidavit, stating he personally had witnessed a crime take place when, in fact, he personally had seen only parts of the crime occur. See Hass, 790 S.W.2d 609, 610B12 (Tex. Crim. App. 1990). In Hass, the Texas Court of Criminal Appeals struck from the affidavit all facts to which the officer had sworn but later admitted he had not personally observed. Id. at 612. The Hass case is not on point because the officer in that case attested that he personally had seen all of the events described in the affidavit, but later admitted that he had not actually seen these events. In the instant case, the facts in the affidavit were based on observations by multiple law enforcement officers, and Special Agent Martin expressly stated in his affidavit that his information was based somewhat on information learned from other officers, which is permissible. See, e.g., Keese v. State, No. 05-98-00878-CR, 1999 WL 225897, at *1 (Tex. App.CDallas Apr. 20, 1999, pet. ref=d) (mem. op., not designated for publication). Special Agent Martin=s affidavit provided in relevant part, Athe information enumerated in the paragraphs below, furnished in support of this affidavit, is derived from my own investigation and information related to me by other sworn law enforcement officers.@ He did not state in his affidavit that he had personal knowledge of all the facts set forth therein. See Martinez v. State, No. 05-98-01790-CR, 2000 WL 12703, at *4 (Tex. App.CDallas, Jan. 10, 2000, pet. ref=d) (not designated for publication). The affidavit itself states, and Special Agent Martin confirmed in his testimony, that the assertions in the affidavit either were known to him or relayed to him from other law enforcement officers. See id. The paragraphs in the affidavit to which appellant objects, when coupled with the language from paragraph five, indicate that the information came from other DEA agents. Therefore, the affidavit does not imply first hand knowledge nor is the information set forth known to be false. See id. Special Agent Martin believed the statements based on his personal knowledge or information from those he reasonably trusted. Thus, the statements in the affidavit are Atrue@ to the extent required by Franks. See Franks, 438 U.S. at 164B65, 98 S. Ct. at 2681; Dancy v. State, 728 S.W.2d 722, 780B82 (Tex. Crim. App. 1987) . Even if these statements arguably could be construed as false, they do not rise to the level of intentional misstatement or reckless disregard as contemplated by Franks. See Franks, 438 U.S. at 169B70, 98 S. Ct. at 2683 (statements must be deliberately false or made with reckless disregard); Dancy v. State, 728 S.W.2d 772, 782B83(holding that even a misstatement regarding the source of information does not render a warrant invalid). Given Special Agent Martin=s affidavit, the magistrate judge could have inferred that drugs were at the subject residence. See Rodriguez, 232 S.W.3d at 63. Because we conclude that the statements in the affidavit were Atrue@ to the extent required by Franks, the magistrate judge had a substantial basis for his conclusion that the drugs were likely to be found at the subject residence. See id. at 64. The trial court=s rulings resolved all credibility issues, and such determinations, as provided in the trial court=s findings of fact, are supported by the record and are within the zone of reasonable disagreement. See Ross, 32 S.W.3d at 856. Therefore, Special Agent Martin=s statements were not false or made with a reckless disregard for the truth and need not be excised from the affidavit. See Franks, 438 U.S. at 156, 98 S. Ct. at 2676. We conclude that the trial court did not commit reversible error by denying appellant=s motion to suppress. We overrule appellant=s second issue. Having overruled appellant=s two issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed July 15, 2008. Panel consists of Justices Fowler, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant and the State couch the hearing on the motion to suppress as a Franks hearing. While it is not clear from the record that the court agreed to hear the evidence under the auspices of Franks, we will review it as such. See Arnold v. State, 47 S.W.3d 757, 758 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).