Ellis v. State

• Citation: 722 S.W.2d 192
• Decision Date: 09 December 1986
• Docket Number: No. 05-82-01218-CR,05-82-01218-CR
• Parties: Michael L. ELLIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 192

722 S.W.2d 192

Michael L. ELLIS, Appellant, v. The STATE of Texas, Appellee.

No. 05-82-01218-CR.

Court of Appeals of Texas,

Dallas.

Dec. 9, 1986.

Melvin Bruder, Dallas, for appellant.

Constance Maher, Asst. Dist. Atty., Dallas, for appellee.

Before AKIN, VANCE and McCLUNG, JJ.

ON REMAND FROM THE COURT OF CRIMINAL APPEALS

AKIN, Justice.

Michael L. Ellis appeals from a conviction for the offense of keeping a gambling place in violation of Section 47.04 of the Penal Code. The trial court assessed punishment at five years' imprisonment, probated for ten years, and a fine of $2,000.00. On appeal, we affirmed the judgment of the trial court, holding that: (1) appellant was not denied effective assistance of counsel by the failure of his trial counsel to challenge the legality of a search for gambling paraphernalia and the admissibility of the fruits thereof; and (2) the indictment was not fundamentally defective. Ellis v. State, 677 S.W.2d 129 (Tex.App.--Dallas 1984). The appellant filed a petition for discretionary review which was granted and our judgment was reversed and this cause remanded to us for consideration of additional issues. Ellis v. State, No. 923-84 (February 19, 1986) per curiam (unpublished).

The Court of Criminal Appeals determined that our decision with respect to the legality of the search was based solely on federal constitutional grounds and did not reach a consideration of state law. Thus, that court reversed our judgment and remanded the cause to us to address the validity of the search warrant under the Texas Constitution and statutes. We have since reviewed the matter and hold that our initial opinion affirming the validity of the warrant is correct under both federal and state law.

In his first point of error, appellant contends that he was denied his right to the effective assistance of counsel because his trial counsel failed to challenge the admissibility of physical evidence obtained during a search for gambling paraphernalia, conducted pursuant to a search warrant. In his second point of error, appellant contends that the affidavit upon which the search warrant is based is insufficient to establish probable cause, and therefore that the fruits of the search were improperly admitted into evidence.

We overrule appellant's second point of error because we may not consider the sufficiency of an affidavit on which a search warrant is based when there has been no objection in the trial court. Rogers v. State, 640 S.W.2d 248, 265 (Tex.Crim.App.1981); Pizzalato v. State, 513 S.W.2d 566 (Tex.Crim.App.1974). We are otherwise compelled, however, to address the sufficiency of the affidavit in order to determine whether appellant was denied effective assistance of counsel by his trial counsel's failure to challenge the legality of the affidavit and the admissibility of fruits of a search conducted pursuant to it.

By the provisions of the Texas Constitution, as well as the statutory law of this state, a search warrant may not issue unless it is predicated or based upon probable cause. See article 1, section 9, Texas Constitution; TEX.CODE CRIM.PROC.ANN. art. 18.01(b) (Vernon Supp.1986); TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon 1979) (no evidence obtained by an officer or other person in violation of the Constitution and laws of the State of Texas shall be admitted into evidence against the accused in a criminal trial). We will address the constitutional and statutory considerations independently.

Like the fourth amendment to the Federal Constitution, the Texas Constitution guarantees that "the people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation." TEX.CONST. art. I, § 9. In interpreting the fourth amendment, the Supreme Court has held that an affidavit is sufficient in establishing probable cause if, from the totality of the circumstances reflected in the affidavit, a reviewing court can determine that the magistrate was provided with a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

The issue before us on remand is whether the Texas Constitution's probable cause standard establishes a higher threshold for the issuance of search warrants than that required by the fourth amendment. We hold that it does not. The language of article 1, section 9 of the Texas Constitution is substantially the same as that used in the fourth amendment of the United States Constitution. Accordingly, the same rationale underlying the opinions construing the Federal Constitution applies with equal force to the Texas Constitution. Because of the identical language of the constitutional provisions, in no way can article 1, section 9 be independently read to establish a greater probable cause standard than that provided by Illinois v. Gates. (See Hernandez v. State, No. 1009-83, p. 3 (Tex.Crim.App. September 17, 1986) (not yet published), where the Court of Criminal Appeals held the United States and Texas Constitutional standards to be the same in determining ineffective assistance of counsel.)

In Brown v. State, 657 S.W.2d 797, 799 (Tex.Crim.App.1983), Judge McCormick, writing for a plurality, observed that the Court of Criminal Appeals "has opted to interpret [the state] constitution in harmony with the Supreme Court's opinions interpreting the Fourth Amendment." Since the remand of the instant cause, a majority of that court adopted the view of the Brown plurality and held valid the search of an automobile passenger compartment in reliance upon the decisions of the Supreme Court interpreting the fourth amendment. Osban v. State, no. 368-83 (Tex.Crim.App., September 17, 1986) (not yet reported). Further, the Court of Criminal Appeals has applied the "totality of the circumstances" analysis in determining the validity of a search warrant for probable cause under the Texas Constitution, and the appellate courts have followed the direction of the Court in this application. See Hennessy v. State, 660 S.W.2d 87 (Tex.Crim.App.1983); Correll v. State, 696 S.W.2d 297 (Tex.App.--Fort Worth 1985, no pet.); Andrada v. State, 695 S.W.2d 230 (Tex.App.--Corpus Christi 1985, no pet.); Garcia v. State, 676 S.W.2d 202 (Tex.App.--Corpus Christi 1984, pet. ref'd). Of particular relevance is Elliot v. State, 681 S.W.2d 98 (Tex.App.--Houston [14th Dist.] 1984), aff'd, 687 S.W.2d 359 (Tex.Crim.App.1985), where the Houston Court of Appeals held that a search warrant affidavit for "gambling paraphernalia" was sufficient to establish probable cause based on the totality of the circumstances analysis applied under both the Texas Constitution, article 1, section 9 and the Texas Code of Criminal Procedure article 18.01. The Court of Criminal Appeals affirmed the Houston court's holding in Elliot v. State, 687 S.W.2d 359 (Tex.Crim.App.1985), further revealing its adoption of the totality of the circumstances analysis for probable cause in interpreting article 1, section 9 of the Texas Constitution. We are not aware of any Texas Court of Criminal Appeals cases expressly applying the "totality of the circumstances" standard of review to review an affidavit for probable cause under the Texas Constitution. However, by implication, this standard has been applied by the cases set out above. Accordingly, we hold that such an application is correct. As set forth in our initial opinion, Ellis v. State, 677 S.W.2d 129 (Tex.App.--Dallas 1984), the search warrant in question is valid under the totality of the circumstances analysis for probable cause. Because we hold that the standard of review is the same under both the Federal and Texas Constitutions, it follows that the warrant does not violate section 9 of article 1 of the Texas Constitution.

Next, we turn to the issue of whether the warrant is valid under the requirements of article 18.01 of the Texas Code of Criminal Procedure and the statutory interpretation thereof. TEX.CODE CRIM.PROC.ANN. art. 18.01(b), (c) (Vernon Supp.1986) states:

(b) No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.

(c) A search warrant may not be issued pursuant to ... unless the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts to establish probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

In order for an affidavit for a search warrant to show probable cause, it must set forth sufficient circumstances to enable a magistrate to judge independently the validity of the affiant's belief that contraband is at the place to be searched. Toletino v. State, 638 S.W.2d 499, 501 (Tex.Crim.App.1982) . No magical formula exists for stating such information. Frazier v. State, 480 S.W.2d 375, 379 (Tex.Crim.App.1972). Independent corroboration on the part of affiants or informants may be used to supply deficiencies in either of the requirements for establishing reliability of informants for purposes of an affidavit for the issuance of a search warrant. Doescher v. State, 578 S.W.2d 385 (Tex.Crim.App.1978). To properly ascertain whether a search warrant is based on probable cause, the...