Juarez v. State, 56674

• Decision Date: 19 September 1979
• Docket Number: No. 3,No. 56674,56674,3
• Parties: Tereso Talmantes JUAREZ, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 513

586 S.W.2d 513

Tereso Talmantes JUAREZ, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 56674.

Court of Criminal Appeals of Texas, Panel No. 3.

Sept. 19, 1979.

Bill Alexander, Odessa, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

From an assessment of punishment of fifty years confinement for delivery of heroin, appellant presents six grounds of error. We need to consider only one ground, however, since it is dispositive of this appeal.

Ground of error two is:

"The district court erred in admitting into evidence the money seized under a search warrant which was procured from the magistrate through purposive (sic) misrepresentations in violation of appellant's rights under the Fourth Amendment to the Constitution of the United States and Article I, Sections 9 and 10 of the Texas Constitution."

The money referred to is $250.00 in currency, whose denominations and serial numbers were recorded by peace officers who then gave the money to one Danny Matta. Matta was at the time acting as a "cooperating individual" to make a case against appellant for delivery of heroin. Some two weeks earlier Matta had been arrested and charged with four counts of delivery of heroin to an undercover agent; his wife was also arrested and charged with one count. In an effort to "alleviate a little of the pressure of the situation that he was in," as one witness put it, Matta initiated, negotiated and entered into a plea bargain with the district attorney that in consideration of certain actions to be taken and recommendations to be made by the prosecutor he, for his part, would make a buy of heroin from appellant.

In September 1976, appellant resided in Barstow, Ward County, Texas. Matta resided in Pecos, Reeves County, Texas, as did Wendell Taylor, then an investigator for the district attorney for the 143rd Judicial District. The undercover agent was Gary Steven Howard, also then a district attorney investigator for the 143rd Judicial District who was then staying at one or another motel in Pecos. Howard was Matta's "control" agent. Matta had known appellant for about five years and had worked on the same job with him. The plan devised was that Matta would contact appellant at his home in Barstow and try to arrange a purchase of heroin all the while Taylor would have the residence of appellant under surveillance from the vantage point of a nearby mobile home and Matta would be in the company of Howard and other officers at a nearby location where Matta and his Mustang automobile would be searched thoroughly and he would be given the $250.00 in currency just before he went to call on appellant.

The operation began Saturday, September 18, 1976 when, according to his supplemental report, Taylor set up surveillance at about noon that day. Matta "believed" that he called at the home of appellant on Saturday and Sunday the supplemental report does not show that he did but it is clear that he went by appellant's home on at least four occasions on Monday, September 20, beginning about 9:30 a. m. At some point during the day, Matta reported to Howard that he could make a buy for $250.00. The money was obtained and, after at least one abortive meeting on a county road during the afternoon, at about 8:00 p. m. Matta drove to the residence of appellant and, according to him, appellant drove up in his pick up; each got out of their respective vehicles, stood and talked for a few minutes and Matta exchanged $250.00 for 65 "nickel papers" of heroin in a plastic wrapper, known in the vernacular as a "ball." Matta then returned in his automobile to the location of Howard and others where he handed over the ball and, as instructed, drove back home to Pecos.

Meanwhile, Taylor had broken off surveillance from the mobile home shortly after he discovered that his radio ceased to function; he obtained a ride to his home in Pecos and then returned to Barstow in his own automobile, but did not arrive until after Matta had returned to Howard notwithstanding, his supplementary report states that at 8:50 p. m. "Danny Matta returned to Juarez' home." ¹

It will be recalled that Investigator Howard and the officers accompanying him were at a location where they could not observe appellant's house or near approaches to it. Thus, when Matta returned to that location the last time he was the only person in the state's group who knew what he had actually done during the 15 minutes or so that he was out of the sight of every officer. Howard testified that when Matta handed him the ball a search of his person demonstrated that Matta did not still have the $250.00 in currency with him but, as Howard also admitted, "At that point I couldn't, it would be impossible for me to say what happened to it."

The problem thus confronting Howard and his associates became obvious: Unless they could prove that the $250.00 in currency was possessed by appellant either on his person or in his house, the case they had been working so hard to make against appellant was weak indeed, resting as it did primarily upon the testimony of the ubiquitous Danny Matta.

During a pre-trial proceeding before the second trial, in his argument to the court the district attorney pinpointed what was generally believed to be true at that time:

"And, as far as trying to get the search warrant for money, of course, that would be evidentiary and couldn't do it anyway. But certainly if you have a search warrant for heroin, and you discover some stolen property or what have you, you can certainly pick it up during the search for the heroin."

Accordingly, a search warrant was obtained, as Taylor conceded at one point, "To find any contraband that we could find plus the marked money." The warrant was issued late Monday night or early Tuesday morning, ² upon an affidavit reading in pertinent part:

"On this day Danny Matta purchased a narcotic drug, to-wit: Heroin in the suspected place and the money for the purchase was supplied to Danny Matta by the undersigned and further that Affiant has had the suspected place under surveillance for the past 48 hours and has seen heavy traffic at said location including known and suspected drug users and dealers.

Further affiant says that the informant, Danny Matta, told the affiant that the suspected party was keeping and possessing a quantity of heroin inside of the said suspected residence. That Danny Matta told the affiant as an junderlying (sic) circumstance supporting this conclusion that informant has been inside of said residence within the past twenty-four hours and has observed the said suspected party keeping and possessing heroin.

That the affiany (sic) has known the informant, Danny Matta, for a number of years. That during this period of time the informant, Danny Matta, has given the affiant information on more than one occasion about violations of the Texas Controlled Substance Act. That the affiant has always checked this information supplied by the informant and has proved it to be true and correct. That the informant has also supplied the affiant with the information that has allowed the affiant to arrest individuals for violations of the Texas Controlled Substance Act. That the affiant . . . ran the surveillance described above, beginning September 18, 1976."

From the first pre-trial through the mistrial, the second pre-trial and during the second trial, appellant stoutly challenged the validity of the search warrant and the underlying affidavit on nearly every conceivable basis, particularly attacking the veracity of many statements in the affidavit. All motions and objections were overruled but, as indicated in the footnote in the margin below, ³ the trial court permitted appellant to perfect a full bill even though at one point the district attorney, noting his own effort to be patient, expressed the thought that "we are going beyond the search warrant" rather than "to look at the warrant on its face." When he completed his bill of exceptions appellant reurged and renewed all his objections which the trial court overruled.

Of course, all of these proceedings pre-dated Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) in which the Supreme Court held that the "four corners" rule in Delaware impinged on Fourth Amendment protections in precluding every challenge to veracity of sworn statements in an affidavit for search warrant. This Court has recently applied the holding of Franks v. Delaware retroactively to an affidavit for search warrant executed in June 1976, Ramsey v. State, 579 S.W.2d 920 (Tex.Cr.App.1979), and, because the trial court there did not hold an evidentiary hearing on allegations that the affidavit contained a falsehood, reversed the conviction and remanded the cause. In the case before us now, however, exhaustive hearings were held at the pre-trial stage as well as on bill of exceptions during the course of the trial, and the trial court ruled implicitly in accordance with the law as it then existed that the sufficiency of a statement of probable cause in an affidavit for a search warrant is determined from the four corners of the affidavit.

With Franks v. Delaware, however, the rule to be followed and the test to be applied are:

". . . where 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 the 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...