Ashorn v. State

• Decision Date: 23 January 1991
• Docket Number: 2-89-271-CR,Nos. 2-89-270-C,s. 2-89-270-C
• Citation: 802 S.W.2d 888
• Parties: Bo Herman ASHORN, Appellant, v. STATE of Texas, State.
• Court: Texas Court of Appeals

Page 888

802 S.W.2d 888

Bo Herman ASHORN, Appellant, v. STATE of Texas, State.

Nos. 2-89-270-CR, 2-89-271-CR.

Court of Appeals of Texas Fort Worth.

Jan. 23, 1991.

David Bays, Danny Burns, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Chris Marshall, Asst. Dist. Atty., Fred Cummings, and Kevin Kapitan, Asst. Crim. Dist. Attys., Fort Worth, for appellee.

Before HILL, LATTIMORE and DAY, JJ.

OPINION

LATTIMORE, Justice.

Pursuant to a plea bargain agreement, appellant, Bo Herman Ashorn, pled guilty to charges contained in two indictments: (1) aggravated possession of a controlled substance, namely cocaine, of more than 28 grams but less than 400 grams, see TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (Vernon Pamph.1991); and (2) aggravated possession of marihuana, of more than 50 pounds but less than 200 pounds, see TEX. HEALTH & SAFETY CODE ANN. § 481.121(c) (Vernon Pamph.1991). The trial court assessed punishment at 10 years confinement in the Texas Department of Corrections and a fine of $1000 for each offense. Appellant preserved his right to appeal from an adverse ruling on his motion to suppress the evidence seized in the search.

We affirm.

The record reveals that Officers Les Motl and Mark Watkins of the Denton County Sheriff's department received information from a confidential informant that appellant was in possession of a large quantity of marihuana. Based on this information, the officers set up a "controlled buy" on April 12, 1988. The two officers followed the informant to the apartment complex in which appellant was living. Once there, the officers searched the informant and his vehicle to ensure that the informant was not carrying any contraband. The informant was given $250 in marked bills to make the buy. The informant went into appellant's apartment. Appellant and the informant left the apartment and traveled to a mini-storage warehouse. Upon returning to appellant's apartment, the informant left appellant and was followed to a predetermined location. The officers again searched the informant and his vehicle. The informant turned over one-eighth of an ounce of cocaine he had purchased from appellant with the buy money and a pound of marihuana that appellant had "fronted" the informant. Officers Motl and Watkins then contacted the Tarrant County narcotics task force and obtained a search and arrest warrant for appellant, his apartment, and the mini-storage warehouse. Both sites were located in Tarrant County.

In his first point of error, appellant contends the trial court erred in failing to suppress the evidence because the affidavit in support of the search warrant contained false statements of fact. In his second motion to suppress, appellant stated that intentional misrepresentations were made to the magistrate in order to obtain the warrant. Specifically, appellant asserts that the affiant's statement that he received information from an informant who had provided information in the past that had proven to be truthful and correct was false and misleading.

Appellant relies on the case of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) and its progeny to support his first point of error. In Franks, the Supreme Court stated:

[W]here the defendant makes 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, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id., 98 S.Ct. at 2676.

Later in the opinion, the Supreme Court set out specifically what requirements must be met by a defendant. First, there must be allegations of deliberate falsehood or reckless disregard for the truth. These allegations must be accompanied by an offer of proof and specifically point out those portions of the affidavit claimed to be false. Id. at 2684. Allegations of innocent mistake or negligence are insufficient as are conclusory allegations. Id. Affidavits or otherwise reliable statements of witnesses must be furnished or their absence explained. Id. Finally, the defendant must show that when the false portion is excised, the remaining content of the affidavit is insufficient to support a finding of probable cause. If these requirements are met, the Court said that the defendant is entitled to his evidentiary hearing. Id. at 2685.

As previously mentioned, appellant did allege an intentional falsehood in his motion to suppress. Appellant asserted that this was the first time the informant had actually provided information to the officers about any criminal violations. Appellant did not accompany his motion with any affidavits or other reliable statements of witnesses, nor did he explain the lack of said items. We do not believe that appellant made a "substantial preliminary showing." Franks, 98 S.Ct. at 2676; Dancy v. State, 728 S.W.2d 772, 781 (Tex.Crim.App.1987). We will address this point of error however, in light of the fact that the trial court granted appellant a hearing on the motion to suppress.

At the hearing, Officer Motl testified that the informant had provided information to the officers prior to the case in question. The informant had provided information on people he had dealt drugs to and the person from whom he was getting his drugs. This information was found to be truthful. During cross-examination, Officer Motl testified that appellant's case was the first time that the informant had actually assisted on a case that had resulted in prosecution. Appellant's investigator testified that the alleged informant had told her that appellant's case was the only time he was an informant for the police.

Appellant contends that since the informant had not provided information that resulted in arrests or convictions, the informant had not provided information that had been proven to be truthful and correct. We do not accept this contention. Appellant does not cite us to any case law that requires that an informant's previous information must have resulted in arrest or conviction. In fact, authority is to the contrary. Gonzales v. State, 704 S.W.2d 508, 510 (Tex.App.--Houston [1st Dist.] 1986, no pet.); see W. LaFave, Search and Seizure § 3.3(b) (2d ed. 1987).

We find that appellant failed to establish his allegation of an intentional falsehood by a preponderance of the evidence. See Franks, 98 S.Ct. at 2676. Appellant's claim that the complained of statement is false and misleading is not borne out by the evidence. Even if the statement was found to be misleading, which we do not so find, appellant failed to show that said statement was made with the type of intent, knowledge, or recklessness contemplated by Franks. See, e.g., Dancy v. State, 728 S.W.2d 772, 782 (Tex.Crim.App.1987). Appellant has failed to prove that he was entitled to any relief under Franks. Therefore, the trial court did not err in refusing to suppress the evidence obtained as a result of the search warrant.

Appellant's first point of error is overruled.

In appellant's second point of error, he contends the trial court erred in not ordering the State to produce the informant because the State has an affirmative obligation to assist the defendant in obtaining witnesses. Appellant asserts that the informant was a material witness on the issue of probable cause to support the issuance of the search warrant. Appellant's briefing of this point of error indicates some confusion on appellant's part as to his actual complaint. Our reading of the brief finds two possible arguments: (1) the State has a burden to produce the informant at trial; and (2) appellant is entitled to disclosure of the identity of the confidential informant. We will address the disclosure aspect first.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the United States Supreme Court set forth general guidelines concerning the disclosure of confidential informants. The Court stated that the problem of disclosure calls for a balancing of "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id., 77 S.Ct. at 629. Whether disclosure is required depends on the particular circumstances of the case, taking into account the offense charged, possible defenses, the possible significance of the informant's testimony, and other relevant factors. Id.

Texas courts have found that the identity of an informant need not be disclosed except in three situations: (1) the informant participated in the offense; (2) the informant was present at the time of the arrest or offense; or (3) the informant was otherwise shown to be a material witness to the transaction or as to whether the defendant knowingly committed the offense. Bernard v. State, 566 S.W.2d 575, 577 (Tex.Crim.App.1978); Thompson v. State, 741 S.W.2d 229, 230 (Tex.App.--Fort Worth 1987), pet. ref'd per curiam, 763 S.W.2d 430 (Tex.Crim.App.1989) (quoting Parker v. State, 713 S.W.2d 386, 391 (Tex.App.--Corpus Christi 1986, no pet.)); Lancaster v. State, 734 S.W.2d 161, 166 (Tex.App.--Fort Worth 1987, pet. ref'd). In Ex parte Turner, 545 S.W.2d 470 (Tex.Crim.App.1977), the Court of Criminal Appeals stated:

The State's right to refuse disclosure of the identity of an informant is recognized to protect the informant and his family due to his usefulness to the Government as a necessary tool of law enforcement. However, where...