Diaz v. State
| Citation | 604 S.W.3d 595 |
| Decision Date | 16 July 2020 |
| Docket Number | NO. 14-17-00685-CR,14-17-00685-CR |
| Parties | Nelson Garcia DIAZ, Appellant v. The STATE of Texas, Appellee |
| Court | Court of Appeals of Texas |
Appellant Nelson Garcia Diaz appeals his conviction for burglary of a habitation while committing the offense of aggravated assault with a deadly weapon. Appellant's sole challenge is to the trial court's denial of his motion to suppress evidence obtained from appellant's three cell phones. Because we conclude that the trial court did not err in denying the motion to suppress, we affirm the trial court's judgment.
Troy Dupuy, a Houston Police Department officer, was at home with his wife around 10:00 p.m. when he heard a loud bang, which sounded like "somebody was trying to kick in the back door of the house." Dupuy retrieved a handgun and went to investigate. Dupuy heard voices on the front porch and then saw his front door flung open. When the door opened, Dupuy heard an individual on the front porch say "police police police." Dupuy testified that, based on his experience as a police officer, "it didn't really sound like something the way a policeman would probably do that when they breach a door," and he immediately thought that the individual on his front porch was not a police officer.
Two men entered Dupuy's house. One of the intruders wore a pair of sunglasses on the top of his head and carried a gun. Once Dupuy realized that the intruders were not law enforcement officials, he "immediately fired two rounds." The intruder with the gun fell to the floor while the other intruder ran back outside. The intruder on the floor exchanged several rounds of gunfire with Dupuy, and Dupuy was shot in the thigh. After the intruder escaped the house, police responded and recovered the back cover of a cell phone, a cell phone battery, and a pair of sunglasses, none of which belonged to Dupuy or his wife.
One of the intruders shared information about the incident with an acquaintance, who, coincidentally, served as a confidential informant for the federal Drug Enforcement Agency (DEA). A few days after the incident, the confidential informant contacted the DEA and provided Special Agent Robert Layne with a description of the suspect in the home invasion. The informant told Agent Layne that the suspect was known as "Jessie." Agent Layne shared this information with DEA Special Agent Ray Thompson, who in turn discovered that "Jessie" was in fact appellant. Agent Thompson confirmed appellant's identity by contacting an agent involved in investigating appellant on other outstanding warrants. Agent Layne then provided appellant's name to the officer in charge of the home invasion investigation, Sergeant David Angstadt with the Harris County Sherriff's Office. Sergeant Angstadt corroborated information Agent Layne had received from the informant, specifically that the intruder had left behind a cell phone battery and battery cover.
Appellant had outstanding arrest warrants for armed robbery and kidnapping in Georgia, and the Gulf Coast Task Force, a multi-agency coalition, executed those warrants and arrested appellant in Houston. Once appellant was in custody, the Task Force contacted Sergeant Angstadt. Sergeant Angstadt took possession of effects obtained from a search of appellant's person and clothing, including three cell phones.1 The State then charged appellant with the present offense, and a Harris County grand jury indicted appellant.2
Harris County District Attorney's Office Investigator Tuan Pham submitted an affidavit in support of a search warrant for the three cell phones. The affidavit stated that Sergeant Angstadt had received "an anonymous tip that an individual known as ‘Jessie’ was involved in the home invasion." The "tipster" provided two phone numbers for the suspect. The affidavit also asserted that, based on Sergeant Angstadt's training and experience, he "knew persons who commit home invasions are commonly involved in the illegal narcotics trade," so Sergeant Angstadt requested the DEA to run the phone numbers through its database. One of the phone numbers was registered to appellant. In reciting these facts in support of the search warrant, and as the trial court found following a suppression hearing, the affidavit misrepresented the person who identified appellant as an anonymous source, when in fact the person who identified appellant was likely known by Sergeant Angstadt to have been the DEA confidential informant.
The magistrate issued the warrant, and law enforcement officials performed a forensic search of the cell phones. Prior to trial, appellant moved to suppress all evidence obtained as a result of the search, arguing that the magistrate could not have found probable cause when issuing the warrant. After a hearing, the trial court denied appellant's motion, and the State introduced several pieces of evidence obtained from the phones at the guilt-innocence phase of appellant's trial. According to appellant, the admitted evidence "included damaging information to the defense, including: 1) a photograph of Appellant holding a gun; 2) a photograph of Appellant holding a fictitious police badge; 3) call history confirming communications with the DEA informant's phone number; 4) a downloaded media report about Officer Dupuy's shooting; and 5) several texts from Appellant, subsequent to the incident, indicating that Appellant could not find his sunglasses."
The jury found appellant guilty as charged in the indictment, found two enhancement allegations for previous convictions true, and assessed punishment at thirty-two years' confinement. Appellant timely appealed.
Appellant argues that the trial court erred in denying his motion to suppress evidence obtained from the three cell phones and offers three independent reasons why the court should have suppressed the evidence: (1) the affidavit and warrant failed to establish that the specifically described property or items to be searched constituted evidence of the offense or evidence that appellant committed the offense; (2) the warrant impermissibly allowed a general search of the phones; and (3) the search warrant misrepresented the nature of the information leading the State to investigate appellant, including that Sergeant Angstadt incorrectly characterized the DEA confidential informant as an "anonymous" source, which the trial court found was made with reckless disregard for the truth.
We begin with appellant's challenge based on Sergeant Angstadt's representation of the confidential informant as an anonymous source. Appellant argues that the misrepresentation and other related assertions constitute a violation of Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks , an arrest warrant must be voided—and any evidence obtained pursuant to the arrest warrant suppressed—if (1) the defendant can establish by a preponderance of the evidence that the affidavit supporting the warrant contains a material misstatement that the affiant made knowingly, intentionally, or with reckless disregard for the truth, and (2) excising the false statement, the affidavit's remaining content is insufficient to establish probable cause. Id. at 155-56, 98 S.Ct. 2674 ; see also Janecka v. State , 937 S.W.2d 456, 462 (Tex. Crim. App. 1996).
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Lerma v. State , 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). We review the trial court's factual findings for an abuse of discretion but review the trial court's application of the law to the facts de novo. Id. Our deferential review of the trial court's factual determinations also applies to the trial court's conclusions regarding mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz , 382 S.W.3d 367, 372 (Tex. Crim. App. 2012) ; Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We review mixed questions of law and fact that do not turn on credibility and demeanor, as well as purely legal questions, de novo. State v. Woodard , 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
The trial court is the sole trier of fact and judge of witness credibility and the weight to be given their testimony. Valtierra , 310 S.W.3d at 447. When the trial court makes explicit findings of fact, as here, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports the fact findings. State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We afford the prevailing party the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence. State v. Duran , 396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Story , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).
Agent Thompson, Agent Layne, and Sergeant Angstadt testified at the suppression hearing. The court found Agent Layne's testimony and Agent Thompson's testimony credible and found Sergeant Angstadt's testimony credible at times and not credible at other times. The trial court made the following relevant findings:
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