Smith v. State

Citation962 S.W.2d 178
Decision Date15 January 1998
Docket NumberNo. 01-96-01418-CR,01-96-01418-CR
PartiesErnest Eugene SMITH, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
CourtTexas Court of Appeals

Anthony Osso, Houston, for Appellant.

John B. Holmes, Dan McCrory, Houston, for Appellee.

Before COHEN, WILSON and HEDGES, JJ.

OPINION

COHEN, Justice.

Appellant pleaded not guilty to possession of cocaine weighing between one and four grams, and not true to two prior felony convictions for possession of cocaine. The trial judge found him guilty, found one enhancement paragraph true, and assessed punishment of 16 years in prison. We affirm.

FACTS

An informant told Officer MacNaul that a suspect named "Gene" sold cocaine from his house at 2400 Brooks Street. After confirming the location, MacNaul used the informant for a controlled buy. He saw the informant enter and leave the house. MacNaul then made an affidavit for and obtained a search and arrest warrant, which he executed the next day. Appellant was arrested in the house, and cocaine found there was used to obtain his conviction.

POINTS OF ERROR

In his first point of error, appellant contends the search was illegal because the warrant did not accurately describe the premises, as required by TEX.CODE CRIM.P.ANN. art 18.04(2) (Vernon 1981) and by U.S. CONST. amend. IV and TEX. CONST. art. 1, § 9. In his second point of error, appellant contends that Tex. Const. art. I, § 9, affords greater protection than the Fourth Amendment and "does not permit the consideration of supplemental knowledge...." Specifically, appellant contends the trial judge erred by holding that the description errors in the warrant were cured because the same officer who conducted the investigation also executed the warrant, thus eliminating the possibility that the wrong house would be searched.

THE GENERAL STANDARD OF REVIEW

At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991). He may believe or disbelieve any or all of any witness's testimony. Id.

A search warrant must describe the target location in sufficient detail that the officer can locate and distinguish it from other places in the community. Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Crim.App.1978). Minor discrepancies will not vitiate a warrant if it sufficiently describes the premises. Id.

THE SEARCH WARRANT

The search warrant described the target residence as follows:

2400 Brooks, Houston, Harris County, Texas, more fully described as a one story white wood framed residence with black trim. This residence is positioned on the south side of Brooks facing north. The numbers are not visible on this structure. This target residence is located on the west side of the last residence positioned on the south side of Brooks Street. The nearest cross street is West Street to the west. Brooks Street dead ends to the east.

FACTS FOUND AT TRIAL, ADMITTED AT TRIAL, AND ADMITTED ON APPEAL

Appellant contends the warrant was defective because it misstated the house's address and general location, and because the physical description failed to differentiate it from other nearby houses. Appellant presented evidence supporting these allegations, and the record shows that the trial court judge was persuaded by that evidence.

Appellant contended the correct address for his house was not 2400 Brooks, as stated in the warrant, but 2417 New Orleans Street. He presented an electricity bill in his name for the address of 2417 New Orleans Street and an investigator's testimony that the house searched had the numbers 2417 on it and that its correct address was 2417 New Orleans. The investigator testified he could find no location whose address was 2400 Brooks, that if he had gone to the location described in the warrant, he would have been at 2406 Brooks, and that it took "not much" effort to determine the accurate address, 2417 New Orleans. The State conceded at trial that "there is actually no 2400 Brooks St.," but claimed this favored admitting the evidence because "there's no possibility that another house would be mistakenly searched."

Appellant's motion to suppress was heard simultaneously with his nonjury trial. After hearing all evidence, the judge heard legal arguments and engaged the attorneys in discussion. During these discussions, the judge stated:

Address for me the issue of diligence on behalf of the police officer. Before we start allowing law enforcement to break into citizens' homes, so the street sign was lying on the ground, so there was a tree out there. 1 The slightest amount of effort would have shown the correct address including the utility bills which are shown to be on Orleans Street or New Orleans Street and not on the street where the house was located. When do we stop allowing police officers just to break into any house they want to without showing at least due diligence on their part?

....

Of course, the evidence does show us the real street number of the house was on the appropriate front of the house, not on the rear of the house that your officers saw.

In the context of this discussion, in which the parties were discussing whether the correct address was that in the warrant, 2400 Brooks, or that alleged by appellant, 2417 New Orleans, it is clear that the judge believed appellant's evidence that the correct address was 2417 New Orleans and resolved that issue in appellant's favor. On appeal, the State concedes that the warrant recites the wrong address.

Appellant also argued that while the warrant stated the street numbers on the house were not visible, the number 2417 was displayed over his front door, which faced New Orleans Street, not Brooks Street. The errors in the warrant were apparently due to Officer MacNaul's mistaken belief that the house faced Brooks Street, rather than New Orleans Street. MacNaul believed this because there was no barrier between the house and Brooks Street, there was a well worn path from the house to Brooks Street, and MacNaul had seen people entering the house from and departing toward Brooks Street. The trial judge, however, found that the house faced New Orleans Street. The judge's statement shows he believed that "2417" was visibly displayed on the front of appellant's house, i.e., the side facing New Orleans Street.

Appellant also presented evidence that the warrant's description of the house "as a one-story white wood frame residence with black trim," although accurate, did not distinguish the house because all the houses nearby, "shotgun houses," met this description. The trial judge resolved this issue in appellant's favor, stating, "Every house on the street was a white house with black trim," and the prosecutor agreed.

Appellant finally contends that the warrant erroneously stated the house was facing north on Brooks Street, when, in fact, it faces south on New Orleans Street. The trial judge's statements showed he resolved this issue in appellant's favor and believed that the house faced south on New Orleans Street. On appeal, the State concedes that the house faced south on New Orleans Street and that the warrant was wrong in that respect.

Of the remaining description quoted below from the warrant, the following was correct:

1. The residence was "positioned on the south side of Brooks." However, it was "facing north," only if one believed, as Officer MacNaul mistakenly did, that the back door was the front door. The trial judge found that the rear of the house faced north, while the front faced south. Thus, the house faced south, although Officer MacNaul's error is easy to understand for reasons stated above.

2. The house was "located on the west side of the last residence positioned on the south side of Brooks Street," if one counts the "last residence" as the easternmost residence, as Officer MacNaul did.

3. "The nearest cross street is West Street to the west."

4. "Brooks Street dead ends to the east."

Thus, all the errors in the warrant, except one, flowed from MacNaul's mistaken belief that the back of the house was the front. The address error, 2400 Brooks, resulted from Officer MacNaul uncritically taking that statement as true from his confidential informant.

We have attached as an appendix a drawing showing the location of appellant's house in relation to Brooks Street, to New Orleans Street, and to other houses nearby.

THE TRIAL JUDGE'S CONCLUSION OF LAW

The record thus establishes that the trial judge found the warrant contained errors that could have significantly impaired an officer executing the warrant from locating the house correctly. 2 Nevertheless, the trial judge denied the motion to suppress, expressly citing and relying exclusively on United States v. Gordon, 901 F.2d 48 (5th Cir.1990).

In Gordon, the court held that a search conducted under a warrant containing a wrong address was valid. 901 F.2d at 50. In upholding the search, the Gordon court considered evidence outside the warrant that arose after the warrant was issued, i.e., that the officer who executed the warrant had previously investigated the location and signed the affidavit. Id. at 50; accord Jones v. State, 914 S.W.2d 675, 678 (Tex.App.--Amarillo 1996, no pet.) (following Gordon ). The Fifth Circuit held that even though the warrant might have led other officers to the wrong house, there was no possibility of mistake there because the officer executing the warrant knew from his investigation--not from the warrant--exactly which house to search. Gordon, 901 F.2d at 50. The Gordon court relied on a number of other facts and factors that are also present here. For example, the erroneous address on the warrant in Gordon did not actually exist. That fact supported affirmance, the court concluded, because "there was no possibility that the wrongly noted location could have been searched." Id. at 50 n. 3. Moreover, the court relied on several other facts, also present here, to conclude...

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  • Jackson v. State, No. 05-07-00783-CR (Tex. App. 2/5/2009)
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