McCombs v. State

• Decision Date: 12 September 1984
• Docket Number: No. 3-83-200-CR,3-83-200-CR
• Citation: 678 S.W.2d 715
• Parties: James Darrell McCOMBS a/k/a James Darrell McComb, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 715

678 S.W.2d 715

James Darrell McCOMBS a/k/a James Darrell McComb, Appellant, v. The STATE of Texas, Appellee.

No. 3-83-200-CR.

Court of Appeals of Texas Austin.

Sept. 12, 1984.

Rehearing Denied Oct. 17, 1984.

J.W. Howeth, Austin, for appellant.

Ronald Earle, Dist. Atty., James M. Connolly, Asst. Dist. Atty., Austin, for appellee.

Before SHANNON, EARL W. SMITH and GAMMAGE, JJ.

PER CURIAM.

A jury found appellant guilty of the offense of possession of methamphetamine. Tex.Civ.Stat.Ann. art. 4476-15 § 4.04 (1976). ¹ After finding that appellant had been previously convicted of a felony offense, the jury assessed punishment at imprisonment for life. Finding no reversible error, we affirm the judgment of conviction.

The methamphetamine in question was seized during a search of appellant's apartment on the night of March 8, 1983. Appellant moved to suppress the fruits of this search on the ground that a statement in the affidavit supporting the search warrant is deliberately false or was made with reckless disregard for the truth, and that without this statement the affidavit is insufficient to establish probable cause for the search. ² Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In pertinent part, the affidavit states:

[O]n or about the 8th day of March A.D., 1983, Affiant received information from a credible and reliable informant that James last name unknown, white male, approximately 42 years old, 6' tall, and 165 lbs., is keeping a controlled substance, to wit: methamphetamine, in his possession inside his residence located at 1781 Spyglass Drive, building # 11, apartment # 185, Austin, Travis County, Texas. Informant has been present inside the aforedescribed residence within the past 72 hours and within this same 72 hour period has observed James last name unknown, white male approximately 42 years old, 6' tall, and 165 lbs., in possession of a useable amount of methamphetamine, inside his residence located at 1781 Spyglass Drive building # 11, apartment # 185, Austin, Travis County, Texas. Although I do not desire to name my informant for reasons of informant's safety and well being, informant's reliability and credibility have been established by the fact that this informant has provided this affiant with information in the past which has proven to be true and correct and has led to the seizure of controlled substances, in particular methamphetamine.

Appellant's challenge to the affidavit concerns the statement that the informer had provided the affiant with information in the past which had proven to be true and correct and had led to the seizure of methamphetamine. Appellant contends that the evidence adduced at the Franks hearing establishes that the informer had not provided the affiant with information in the past, and that the statement that he had done so was, at the least, made with reckless disregard for the truth.

The informer was Jerry Cardwell. Cardwell had been arrested by the affiant, Austin police officer Michael Lummus, at approximately 7:30 p.m. on March 8, 1983. Cardwell had two grams of methamphetamine in his possession at the time of his arrest. In exchange for the dropping of charges, Cardwell agreed to cooperate with the police.

At the Franks hearing, Lummus testified that Cardwell told him that the methamphetamine had been "fronted" to him by appellant and that he needed to return to appellant's apartment with $110.00 payment. Cardwell also told Lummus that he could obtain more methamphetamine from appellant. Lummus decided to test the accuracy of this information by means of a controlled buy.

At the police station, six $20.00 bills were photocopied and given to Cardwell, who had been thoroughly searched at the time of his arrest. Cardwell was then taken to appellant's apartment by Lummus. Cardwell entered the apartment, which was the first time he had been out of Lummus' sight since his arrest, and remained several minutes. Cardwell then returned to Lummus' vehicle with $10.00 and one gram of methamphetamine. At this time, he informed Lummus that he had seen additional methamphetamine in appellant's possession inside the apartment.

On the basis of this information, Lummus drafted the affidavit in issue. He then took the affidavit to Austin Municipal Judge Wilford Aguilar, who issued the search warrant.

Judge Aguilar also testified at the Franks hearing. He stated that he and Lummus discussed the events of that evening and that he initially believed the affidavit's description of the informer's reliability to be false. However, after giving the matter some thought, Judge Aguilar concluded that the affidavit was accurate:

We talked about it a little bit and discussed it back and forth. I realized that I wasn't aware of any cases that say that the informant's information must be in a case other than the one that they're obtaining a search warrant for.

* * *

One of the issues I had to resolve was whether or not Lummus was, in fact, lying in this statement. I felt that the way he analyzed it as he told me, he was telling the truth and that he had given him information in the past. I couldn't think of any case law that indicated that that could not occur in the issuance of a warrant where there is a confidential informant.

* * *

The way I analyzed it is, you have an entry. He went in and he saw speed. He told the officers. The officers then said "You've never given us information before. We need to verify your information." They sent him back in and bought it. The information back here on the initial entry was proved to be true.

The second entry was the entry he was referring to within the past 72 hours. With that he came in and got the search warrant based on the second entry using the truth of the first entry with the buying of the second entry to justify the search warrant. That's the analysis that I went through that night.

Clearly, the information gathered by Lummus on the evening of March 8 was sufficient to establish probable cause to search appellant's apartment, even when measured by the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). ³ Cardwell's knowledge was based on his having been inside appellant's apartment that very night, where he had seen the methamphetamine. Cardwell's credibility was established by the controlled buy: he had said he could obtain methamphetamine at appellant's apartment and had done so. See 1 LaFave, Search and Seizure § 3.3, at 512 (1978).

The problem posed in this case is the result of Lummus' decision to cast his affidavit in the boilerplate language that evolved in the wake of Aguilar and Spinelli. As noted by the Supreme Court in Gates, supra n. 3, "[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." 462 U.S. at ----, 103 S.Ct. at 2328, 76 L.Ed.2d at 544. This observation applies to the instant case, where the facts constituting probable cause do not precisely fit the neat phraseology of the standard Aguilar affidavit.

But while the affidavit is awkwardly worded, we cannot say it is false. "In the past" is an unusual way of saying "earlier tonight," but it is nevertheless literally true that Lummus' informer, Cardwell, had previously given Lummus information (methamphetamine was present in and being distributed from appellant's apartment) that by means of the controlled buy had been proved to be true and correct. The methamphetamine obtained in this controlled buy had been seized by Lummus.

Moreover, the issue at a Franks hearing is not whether the affidavit contains false statements, but whether the affiant included these false statements in the affidavit knowingly and intentionally, or with reckless disregard for the truth. Taylor v. State, 604 S.W.2d 175 (Tex.Cr.App.1980). In reviewing the testimony of Lummus and Judge Aguilar, we are satisfied that Lummus did not deliberately lie in his characterization of his informer's reliability, nor did he recklessly disregard the truth. While it is apparent that Lummus was aware that this was not a "typical" case and that the language employed in the affidavit did not clearly describe the information he had gathered, it is also apparent that Lummus believed the affidavit was true. Lummus did not attempt to conceal the details of his investigation from Aguilar. On the contrary, these details were fully discussed and considered by Aguilar with the specific question of the accuracy of the affidavit in mind.

We hold that the trial court did not err in overruling appellant's challenge to the search warrant affidavit. Appellant's third ground of error is overruled.

In his fourth ground of error, appellant contends the trial court erred by admitting in evidence three items seized by the police during the search of his apartment. These items were appellant's driver's license, a sheet of paper bearing figures characterized by one officer as records of drug transactions, and an envelope addressed to appellant and his wife. Appellant contends these items were unlawfully seized because they were not specifically mentioned in the search warrant.

This contention was not preserved for review. No motion to suppress these items on this ground appears in the record, and the only objection voiced by appellant when the exhibits were offered in evidence was that the evidence was immaterial and the State had not laid a proper predicate. This ground of error is overruled.

Appellant's second ground of error concerns defense witness Alpheus Wayne Hodges. After brief questioning by Bob Looney, appellant's trial counsel, during which Hodges testified that he had met appellant while in jail and had met Cardwell on March 8, 1983, "to give him something," the assistant district attorney approached the bench. After an...