State v. Morgan, 08-91-00336-CR

• Decision Date: 04 November 1992
• Docket Number: No. 08-91-00336-CR,08-91-00336-CR
• Citation: 841 S.W.2d 494
• Parties: The STATE of Texas, Appellant, v. Jimmy Dwain MORGAN, Appellee.
• Court: Texas Court of Appeals

Page 494

841 S.W.2d 494

The STATE of Texas, Appellant, v. Jimmy Dwain MORGAN, Appellee.

No. 08-91-00336-CR.

Court of Appeals of Texas El Paso.

Nov. 4, 1992.

Gary Garrison, Dist. Atty., Odessa, for appellant.

David Greenhaw, Odessa, for appellee.

Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.

OPINION

KOEHLER, Justice.

In an interlocutory appeal pursuant to Tex.Code Crim.Pro.Ann. art. 44.01(a)(5) (Vernon Supp.1992), the State seeks in a single point of error a review of the trial court's suppression of any and all evidence seized by law enforcement officers from Jimmy Dwain Morgan in execution of a search warrant. We reverse the judgment of the trial court.

Factual Background

On March 12, 1991, a deputy from Ector County Sheriff's Department obtained a warrant to search Morgan's residence which was executed the following day. As a result of the execution, Morgan was arrested and later indicted for possession of less than 400 grams but more than 28 grams of a controlled substance, namely amphetamine. Morgan filed a motion to suppress the evidence seized on the ground that the warrant was deficient. After a hearing, the trial court granted the motion finding the warrant did "not demonstrate adequatly [sic] that the confidential informant saw a specific controlled substance in [Morgan's] home...." Hence, the State perfected this appeal.

Standard of Review

The trial judge is the exclusive judge of the credibility of witnesses and weight to be given testimony at a hearing on a motion to suppress, and the judge may believe or disbelieve any, part or all of any witness's testimony. Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991), cert. denied, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444 (1992); Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991); Romero v. State, 800 S.W.2d 539 (Tex.Crim.App.1990); State v. Wood, 828 S.W.2d 471, 474 (Tex.App.--El Paso 1992, no pet.). On appeal, a reviewing court does not engage in its own factual review but decides only whether the trial judge's fact findings are supported by the record. Lucas v. State, 791 S.W.2d 35, 47 (Tex.Crim.App.1989). We address only the question of whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543.

In addressing this issue, we must consider the totality of the circumstances to determine whether the trial court's findings are supported by the record, and the findings will not be disturbed absent a clear abuse of discretion. ¹ Dancy v. State, 728 S.W.2d 772, 777 (Tex.Crim.App.), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987). If the trial judge's decision is correct on any theory of law applicable to the case however, it will be sustained. Romero, 800 S.W.2d at 543; Calloway v. State, 743 S.W.2d 645, 651-52 (Tex.Crim.App.1988). This principle holds true even though the trial judge gives the wrong reason for his decision, Salas v. State, 629 S.W.2d 796 (Tex.App.--Houston [14th Dist.] 1981, no pet.), and is especially true with regard to the admission of evidence. Romero, 800 S.W.2d at 543.

Burden of Proof

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, the Court of Criminal Appeals has placed the burden of proof initially upon the defendant. Russell v. State, 717 S.W.2d 7 (Tex.Crim.App.1986); Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Crim.App.1970). As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and, therefore, shifts the burden of proof to the State. Russell v. State, 717 S.W.2d at 9. When the validity of a search is challenged and the State produces a warrant, the defendant must go forward to establish its invalidity on some ground such as a lack of probable cause. See Johnson v. State, 803 S.W.2d 272, 290 (Tex.Crim.App.1990), cert denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991), overruled to the extent in conflict with Heitman v. State, 815 S.W.2d 681, 682, 690 (Tex.Crim.App.1991); Haynes v. State, 468 S.W.2d 375, 377-78 (Tex.Crim.App.1971), cert. denied, 405 U.S. 956, 92 S.Ct. 1180, 31 L.Ed.2d 233 (1972).

Analysis

At the hearing on Morgan's motion to suppress, a copy of the search warrant with the supporting affidavit was introduced as evidence. The pertinent portion of the affidavit is as follows:

3. It is the belief of affiants, and they hereby charge and accuse, that said suspected party has possession of and is concealing at said suspected location a controlled substance, namely: Methamphetamine

4. Affiants have probable cause for said belief by reason of the following facts, to-wit:

That affiant is a Peace Officer in and for The State of Texas and is currently employed by the Ector County Sheriff's Department in the capacity of Investigator assigned to the Intelligence Section.

That during the course of affiants employment as a Peace Officer in and for the State of Texas, affiant has received training and experience in the execution of search and arrest warrants and has personally assisted in the execution of over (50) fifty search and arrest warrants.

That on the date of 03-12-91 affiant was contacted by a confidiential, [sic] credible and reliable informant, whose name and identity must remain unknown for security reasons, and was advised by the said informant that the suspect party has at the suspect location a quantity of controlled substance, namely, methamphetamine in violation of The Texas Controlled Substance Act.

That that affiant believes and has reason to believe the said informant as the informant is not a first time informant and has given this affiant information in the past that was known to be true, reliable and correct.

That the said informant has given affiant information in the past that was checked by affiant and found to be true, reliable and correct in each and every instance.

That the said informant has given affiant information in the past that has led to the arrest of 10 violators of The Texas Controlled Substance Act and the seizure of controlled substances.

That the said informant knows what methamphetamine is as the said informant is a past abuser of methamphetamine.

That as an underlying circumstance to support the above the said informant has been inside the suspect residence within the past twenty-four hours and did personally see a quantity of controlled substance, namely: ________. [Emphasis added].

It is obvious from the different size and style of type of the underlined portions of the affidavit that it is a fill-in-the-blank form affidavit. Morgan contended the last paragraph was deficient in that the blank following "quantity of controlled substance, namely:" was not completed to specify what controlled substance had been seen by the informant within the last twenty-four hours. Thus, Morgan concluded no disinterested magistrate could have found probable cause to issue the warrant. The trial judge stated that the paragraph would be redacted as if a nullity if he found it inadequate and that he would review the remainder of the affidavit to determine if probable cause was established therein as corrected. In support of his order suppressing all the evidence obtained as a result of the issuance and execution of the warrant, the trial judge found the warrant defective for failing to demonstrate the specific controlled substance the informant saw in Morgan's home.

On appeal, the State argues the trial judge should have simply placed a period [.] after "quantity of controlled substance" rather than eliminating the entire paragraph from the affidavit. The State contends, therefore, the necessary temporal proximity of the informant's viewing of the controlled substance is established. As to specificity, the State asserts the issuing magistrate and a reviewing court could refer to anything within the four corners of the affidavit to draw a reasonable inference that the "controlled substance" in the last paragraph inherently refers to methamphetamine in the above paragraphs, and we agree. See generally, Salazar v. State, 806 S.W.2d 291, 293 (Tex.App.--Amarillo 1991, no pet.). If the facts alleged in the affidavit, considering the totality of the circumstances, would warrant a reasonably cautious man to believe the allegations, probable cause to issue the warrant existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983).

The instant facts fully illustrate the typical problems encountered by the judiciary due to law enforcement agencies' continued use of both form affidavits and form warrants. Both practices have been condemned by the Court of Criminal Appeals. Faulkner v. State, 537 S.W.2d 742, 744 (Tex.Crim.App.1976); Brown v. State, 437 S.W.2d 828, 829 (Tex.Crim.App.1968), cert. denied, 393 U.S. 1089, 89 S.Ct. 850, 21 L.Ed.2d 782 (1969). We pause but briefly to reurge the condemnation of this practice in that the use of forms lends itself to the problems and omissions incurred in the instant case. Rather, it is a much sounder and wiser procedure to individually draft affidavits and warrants so as to avoid uncompleted blanks and to specifically tailor the necessary factual averments to establish probable cause.

It is the presence or absence of supporting facts from which a reviewing court resolves the sufficiency of an averment used to establish probable cause. Lagrone v. State, 742 S.W.2d 659, 661 (Tex.Crim.App.1987). In the instant case, the averment that a controlled substance had been recently seen at the place to be searched was supported by factual allegations to bolster the informant's veracity and reliability regarding his ability to identify a substance as methamphetamine. Moreover, a virtually identical paragraph within the affidavit--minus the temporal assertion--provided factual support and specifically identified the controlled substance as follows: "[A]ffiant ... was advised by the said informant that the suspect party [Morgan] has...