Long v. State

• Decision Date: 14 May 2003
• Docket Number: No. 12-02-00030-CR.,12-02-00030-CR.
• Citation: Long v. State, 108 S.W.3d 424 (Tex. App. 2003)
• Parties: Gwin H. LONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

108 S.W.3d 424

Gwin H. LONG, Appellant, v. The STATE of Texas, Appellee.

No. 12-02-00030-CR.

Court of Appeals of Texas, Tyler.

May 14, 2003.

Landon L. Northcutt, for appellant.

James H. Owen, Life, Stark & Owen, P.C., Athens, for State.

Panel consisted of WORTHEN, C.J. and RAMEY, JR., Retired Chief Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

JAMES T. WORTHEN, Chief Justice.

Gwin H. Long ("Appellant") was charged with five counts of gambling offenses, including gambling promotion keeping a gambling place, and possession of gambling devices and paraphernalia. The jury found her guilty of all five counts. The trial court assessed punishment at sixty days in jail and a $5,000.00 fine. In her sole issue, Appellant asserts the trial court erred in admitting certain evidence. We affirm.

BACKGROUND

Scott Wilson, an investigator with the Texas Attorney General's gambling task force, participated in an undercover investigation of Appellant's business, Trains, during which he played some eight-liner machines. After gathering sufficient information, Wilson drafted a lengthy affidavit in support of a search warrant which authorized a search of Trains. The officers who executed the warrant searched two train cars, a silver car and a red caboose that Appellant used as her residence.

At trial, Wilson testified in great detail about playing some of the eight-liner machines located in a silver train car on Appellant's property at 1075 Pritchett Lane, Seven Points, Henderson County, Texas. He explained that a red caboose was next to the silver train car and when they searched the caboose, the officers discovered business records and cash. At this point in the testimony, counsel for the defense objected to the admissibility of the items seized from the caboose on the basis that the search warrant authorized a search of the silver train car only. The trial court heard argument from both sides outside the presence of the jury. Initially, the trial court agreed with counsel for the defense and refused to admit any items seized from the red caboose. At the conclusion of direct testimony by Wilson, the court recessed for the evening. The following morning, the State reurged its position regarding admissibility of the items seized from the red caboose. After argument from both sides, the trial court reversed its ruling and allowed the State to admit all items seized from the caboose.

The search warrant authorized law enforcement officers to:

enter and search the said suspected place and premises, to wit: unnamed business known as "Train's", 1075 Pritchett Lane, Seven Points, Henderson County, Texas, ... with the authority to search for and seize implements, instruments, instrumentality's, [sic] proceeds and evidence used in the commission of the offenses of Gambling Promotion, Keeping a Gambling Place, Possession of a Gambling Device and Possession of Gambling Paraphernalia.

The affidavit supporting the warrant was incorporated into the warrant for all purposes and stated:

1. THERE IS IN SEVEN POINTS, HENDERSON COUNTY, TEXAS, A SUSPECTED PLACE AND PREMISES DESCRIBED AND LOCATED AS FOLLOWS:

An unnamed business establishment known locally as Train's is located at 1075 Pritchett Lane, Seven Points, Henderson County, Texas. The structure is a silver in color passenger train car. The passenger train car is located north, 8/10 of a mile from State Highway 334 on the west side of Pritchett Lane, Seven Points, Henderson County, Texas. In front of this silver in color passenger train car is a black mail box located on the west side of Pritchett Lane with the numbers "1075". This is the only silver in color passenger train car located on Pritchett Lane 8/10 of a mile north of State Highway 334, Seven Points, Henderson County, Texas.

The affidavit stated that "at said suspected place and premises," evidence, including "any and all business records and documentation pertaining to the unnamed business `Train's,'" was to be seized and taken into custody.

SCOPE OF WARRANT

In her sole issue, Appellant asserts the officers exceeded the scope of the search warrant by searching the red caboose which she was using as her residence. She argues that the warrant was limited in scope to her business, Trains, which was described in the affidavit as a "silver in color passenger train car." Noting that neither the warrant nor its supporting affidavit make reference to any other structures on Appellant's property, Appellant asserts there is no evidence suggesting the red caboose was associated with any gambling-related activity.

APPLICABLE LAW

We review a court's ruling on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996). We will not reverse such a ruling so long as it falls "within the `zone of reasonable disagreement.'" Id. at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh'g)). "When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case." Rogers v. United States, 330 F.2d 535, 542 (5th Cir.), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186 (1964).

A search is unreasonable and violates the protections of the Fourth Amendment if it exceeds the scope of the authorizing warrant. U.S. CONST. amend. W; Long v. State, 532 S.W.2d 591, 596 (Tex.Crim.App. 1975). While the scope of the search warrant is governed by its terms, the search may be as extensive as is reasonably required to locate items described in the warrant. See Haynes v. State, 475 S.W.2d 739, 741-42 (Tex.Crim.App.1971). Search warrants and affidavits should be considered in a common sense manner, and hypertechnical readings should be avoided. See Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969). If a warrant specifies a place under the designation by which it is commonly known, though the exact description may not be correct, the warrant will be upheld. United States v. Palmer, 667 F.2d 1118, 1120 (4th Cir.1981), cert. denied, 464 U.S. 817, 104 S.Ct. 76, 78 L.Ed.2d 88 (1983).

Both the warrant and its supporting affidavit used the phrase "place and premises" followed by an address and a description of Appellant's place of business. The Texas Court of Criminal Appeals has explained that

[t]he term "premises" has, in legal parlance, a meaning so broad and varied that its interpretation in a given case is to a great extent governed by the context; that is to say, the manner of its use in the connection found tends to portray the intent with which it was embraced in the document.

Comeaux v. State, 118 Tex.Crim. 223, 228-29, 42 S.W.2d 255, 258 (Tex.Crim.App. 1931) (op. on reh'g). In Comeaux, a warrant to search "a certain place and premises" at a specified address was held to include a detached garage on the same lot as the defendant's residence. Id. The same language has been held to allow the search of a doghouse thirty to forty-two feet from the residence. Bess v. State, 636 S.W.2d 9, 10 (Tex.App.Corpus Christi 1982, pet. ref'd, untimely filed). In Seale v. State, 118 Tex.Crim. 324, 39 S.W.2d 58 (Tex.Crim.App.1931), that reasoning was applied to the language of a warrant authorizing the search of a business comprising a filling station and a detached garage. In approving the search, that court held that the description, "a certain place, building and premises" being used by the defendant, included the detached garage. Id. at 59. The Fifth Circuit followed this reasoning when it concluded that the search of a detached garage was within the scope of a warrant that authorized the search of the premises described as "a certain building, house or place of' the defendant. United States v. Moore, 743 F.2d 254, 256 (5th Cir.1984).

Other jurisdictions have reached the same conclusion. See United States v. Earls, 42 F.3d 1321 (10th Cir.1994), cert. denied, 514 U.S. 1085, 115 S.Ct. 1800, 131 L.Ed.2d 727 (1995) (Warrant authorizing search of premises at specified address and giving description of residence held to include detached garage, shed, and office at that location.); United States v. Griffin, 827 F.2d 1108 (7th Cir.1987), cert. denied, 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 243 (1988) ("Premises" particularly described and located at stated address included the yard and toolshed.); United States v. Bonner, 808 F.2d 864 (1st Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1632, 95 L.Ed.2d 205 (1987) (Where warrant included an attachment containing a description of "properties" to be searched, and corrected warrant included address, "properties" held synonymous with "premises" and therefore the warrant embraced detached garage on the property.); Oregon v. Showalter, 134 Or.App. 34, 894 P.2d 504 (1995) (Warrant for "premises" at particular address included a disabled truck in the yard.); Barton v. Georgia, 161 Ga.App. 591, 288 S.E.2d 914 (1982) (Warrant authorizing search of described "premises" at particular address included outbuildings not specifically described.); People v. Muniz, 198 Colo. 194, 597 P.2d 580 (1979) (Warrant supported by affidavit identifying "premises" at a particular address included a shed in the backyard.).

Based on an interpretation of the "place and premises" language in the warrant, the fact that the silver train car and the red caboose were two separate structures and not physically connected does not lead us to conclude that the red caboose was not included in the scope of the search warrant. We note that the majority of the cases construing the "place and premises" language involve searches of residences. Therefore, we turn now to cases presenting discussions of the scope of warrants to search businesses.

In United States v. Heldt, 668 F.2d 1238 (D.C.Cir.1981), the court considered the scope of a warrant authorizing a search of "the suite of offices of Mr. Henning Heldt." The warrant described the...