State v. Brady, s. 13-88-105-C

• Decision Date: 15 December 1988
• Docket Number: Nos. 13-88-105-C,13-88-106-C,13-88-110-CR and 13-88-111-CR,s. 13-88-105-C
• Citation: 763 S.W.2d 38
• Parties: The STATE of Texas, Appellant, v. Thomas Scott BRADY and Marlan Hankin, Appellees.
• Court: Texas Court of Appeals

Page 38

763 S.W.2d 38

The STATE of Texas, Appellant, v. Thomas Scott BRADY and Marlan Hankin, Appellees.

Nos. 13-88-105-CR, 13-88-106-CR, 13-88-110-CR and 13-88-111-CR.

Court of Appeals of Texas,

Corpus Christi.

Dec. 15, 1988.

Ben Euresti, Jr., County Crim. Dist. Atty., Brownsville, for appellant.

Mike McNamara, Harlingen, for appellees.

Before BENAVIDES, UTTER and KENNEDY, JJ.

OPINION

BENAVIDES, Justice.

Appellees Brady and Hankin were each individually charged in four separate informations with promoting two allegedly obscene movies. The movies were seized under a search and arrest warrant issued by Justice of the Peace Tony Torres.

Before trial, appellees filed a motion to suppress the seized evidence. The trial court granted the motion. Pursuant to Tex.Code Crim.Proc.Ann. art. 44.01(a)(5) (Vernon Supp.1988), the State appealed the trial court's order suppressing the movies. Because the same allegedly invalid warrant is involved in all four cases, we will address the merits jointly in one opinion. We find no valid legal theory to suppress the evidence and reverse the order of the trial court.

The warrant issued by the Justice of the Peace was a preprinted form which referred to the supporting affidavit of investigator Gonzalez for the persons to be arrested, the place to be searched, and the objects to be seized. By incorporating the affidavit into the warrant, the Justice of the Peace authorized the police to enter a movie theatre, and search for and seize the movies "Squalor Motel" and "Vanessa." He also authorized the arrest of each "suspected party" named in the supporting affidavit. The affidavit described the suspected parties as "An individual who is believed to be Mr. Boyd, and is also believed to be the proprietor as well as an individual(s) who actually operates the movie projector whose name(s) are unknown to this Affiant."

Pursuant to the warrant, Gonzalez went to the movie theatre and seized "Squalor Motel" and "Vanessa Maid in Manhattan." He arrested Thomas Scott Brady and Marlan Hankin. Between the time that Justice Torres issued the warrant and the time that the warrant was executed, investigator Gonzalez, without the Justice's knowledge, replaced the name "Boyd" in the warrant with "Scott Brady." This alteration apparently occurred when Gonzalez discovered that Brady was the actual proprietor of the theatre.

Appellees filed a motion to suppress the two movies on the grounds that:

1) "Boyd" had been changed to "Brady,"

2) Boyd was neither the proprietor nor projectionist, and was unknown to the defendants,

3) No sworn affidavit was filed as required by the Texas Code of Criminal Procedure, and

4) "Vanessa Maid in Manhattan" was not one of the two movies identified in the warrant.

After hearing evidence on appellees' motion, the trial court entered an order suppressing the two movies. Although the State requested findings of fact and conclusions of law, the trial court concluded that he had no authority to issue findings. The State gave notice of appeal and now raises four points of error. If we determine that the trial court was correct on any theory presented in the motion, we will uphold the trial court's order.

In its first point of error, the State contends that the trial court erred in suppressing the seized movies because of investigator Gonzalez' alteration of the warrant. The State argues that Gonzalez altered the affidavit, not the warrant, and that the warrant should be judged as issued and not as executed.

It is not necessary for us to address all of the reasons advanced by the State to uphold the seizure because we ultimately hold that the alteration of the warrant had no effect on the seizure of the movies. This is so because the appellees' arrest did not produce any evidence. In deciding this point, we assume, but do not decide, that the alteration resulted in an illegal arrest.

An illegal arrest, however, will not vitiate a conviction unless it leads to the admission of evidence. Stiggers v. State, 506 S.W.2d 609 (Tex.Crim.App.1974). The search of the theatre, which produced the two movies, was not a search incident to appellees' arrest. The search was independently authorized by the combination search and arrest warrant issued by Justice Torres. A combination search and arrest warrant is valid under Texas law. Pecina v. State, 516 S.W.2d 401 (Tex.Crim.App.1974). No portion of the affidavit or warrant applicable to the search was altered by investigator Gonzalez.

Where an officer recklessly or knowingly includes false information in his application for a warrant, the remedy is to strike the false portions. The sufficiency of the application is then judged by the remaining valid portions. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Spencer v. State, 672 S.W.2d 451 (Tex.Crim.App.1984).

Using the same analysis in the present case, the search warrant remains viable and supports the search for and seizure of the two movies. Investigator Gonzalez swore that he viewed the two movies. He described their contents in detail in his supporting affidavit, and that portion of the affidavit was not altered. Accordingly, it provides sufficient information to support the command to search and seize the movies. The State's first point of error is sustained.

In its second point of error, the State contends that the trial court was incorrect in suppressing the evidence if it did so because Mr. Boyd was neither the proprietor nor projectionist at the theatre. We sustain this point of error for the same reasons that we sustained the State's first point of error. Assuming investigator Gonzalez either recklessly or falsely believed "Mr. Boyd" was the person he sought and we strike this portion of the affidavit, the remaining portions adequately support the search. Furthermore, as stated above, the suppressed evidence was not obtained as a result of appellees'arrest. The State's second point of error is sustained.

In its third point of error, the State contends that the warrant was not defective even though no sworn affidavit was filed as required by Tex.Code Crim.Proc.Ann. art. 18.01(b) (Vernon Supp.1988). Article 18.01(b) provides:

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. The affidavit is public information if executed.

The record shows that investigator Gonzalez prepared an affidavit in support of his request for a search and arrest warrant. As noted above, the affidavit described the two movies which Gonzalez viewed at the theatre. Gonzalez also attached to the affidavit a newspaper advertisement for the movies.

That affidavit was presented to Justice Torres, and he based his decision to issue the warrant on that affidavit. Justice Torres then returned the affidavit to investigator Gonzalez who placed it with the warrant. Gonzalez then executed and returned the "warrant" to Torres. Although the affidavit and an attached newspaper advertisement had been a part of the warrant, Gonzalez took these items back to his office.

Justice Torres testified at the suppression hearing that after a search warrant is signed, the Justice Court assigns the cause a number and the warrant is filed. He testified that the "warrant" was filed but that the original attachments were not. ¹

We agree with the State that Justice Torres' failure to "file" and retain the affidavit at the time the warrant was issued does not vitiate the warrant. Although we have not found a Texas case directly on point, a number of different jurisdictions have addressed the same or similar issues. Generally, courts consider the affidavit "filed" when it is presented to the magistrate, even though it is not marked "filed" until a later time. Even though the affidavit is returned to the investigator, absent some showing of harm to the accused; the failure to "file" and retain the affidavit has been considered a breach of the magistrate's ministerial duty which does not invalidate the warrant. See Howard v. United States, 306 F.2d 392 (10th Cir.1962); Battani v. Grund, 244 Iowa 623, 56 N.W.2d 166 (1952); Critelli v. Tidrick, 244 Iowa 462, 56 N.W.2d 159 (1952); State v. Innocenti, 170 Wash. 286, 16 P.2d 439 (1932); State v. Watson, 1 S.W.2d 837 (Mo.1927); Mowlan v. State, 197 Ind. 517, 151 N.E. 416 (1926).

In Texas, a document is filed when delivered to the clerk, even though it may lack a file mark and date stamp, if it appears the document was filed but the clerk, through inadvertence or oversight, neglected to place a file mark on the document. Timmons v. State, 586 S.W.2d 509, 511 n. 5 (Tex.Crim.App.1979). In Fowler v. State, 156 Tex.Cr.R. 270, 240 S.W.2d 313 (1951), the defendant claimed that a search warrant was illegal because no affidavit for search warrant was on file. The Justice of the Peace was...