Opinion
No. 08-14-00008-CR
01-27-2016
OSCAR ACEVES, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the Criminal District Court. No. 1 of El Paso County, Texas (TC# 20130D03107) OPINION
Appellant Oscar Aceves was convicted on one count of possessing cocaine with intent to deliver and one count of possessing marijuana. In two appellate issues, he contends that the trial court should have granted his motion to suppress under Franks v. Delaware because he proved by a preponderance of the evidence that a search warrant affidavit contained statements that were false or made with reckless disregard for the truth. We affirm.
438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). --------
BACKGROUND
Appellant was arrested after a search performed pursuant to a warrant revealed narcotics in his work place. In support of the search warrant, El Paso County Sheriff's Department Detective Ben Perales submitted an affidavit to the trial court. The search warrant affidavit reads as follows, with the passages being challenged by Aceves set out in bold and italics:
THE UNDERSIGNED AFFIANT, DETECTIVE BEN PERALES BEING A PEACE OFFICER UNDER THE LAWS OF TEXAS AND BEING DULY SWORN, ON OATH MAKES THE FOLLOWING STATEMENTS AND ACCUSATIONS.
1. THERE IS IN EL PASO COUNTY, TEXAS A SUSPECTED PLACE DESCRIBED AND LOCATED AS FOLLOWS:
Licon's Electronic and more is located at 4020 Montana, El Paso County, Texas. The business is located at the Southside of Montana Avenue. The business is painted white with blue trim. The front glass doors of the business face north and the left glass door has the business logo of Licon's Electronics & More. The business also has a mechanic shop that it [sic] is located in the rear of the business and entry into the mechanic shop is made through the front of the business as well as through an alley that is located behind the SUSPECTED PLACE. Also to include any vehicles and any other buildings within the property.
2. SAID SUSPECTED PLACE IS IN CHARGE OF AND CONTROLLED BY EACH OF THE FOLLOWING NAMED PARTIES (HEREINAFTER CALLED "SUSPECTED PARTY" WHETHER ONE OR MORE) TO WIT: OSCAR ACEVES MOLINA DOB . . . .
3. IT IS THE BELIEF OF AFFIANT, AND AFFIANT HEREBY CHARGES AND ACCUSES THAT SAID SUSPECTED PARTY HAS POSSESSION OF AND IS CONCEALING AT SAID SUSPECTED PLACE IN VIOLATION OF THE LAWS OF TEXAS THE FOLLOWING DESCRIBED PERSONAL PROPERTY, TO WIT:
Controlled Substance to wit: any narcotics and all contraband described in Chapter 59 of the Texas Criminal Code of Procedures. (Marijuana, Cocaine, Heroin and Methamphetamines[)]
4. AFFIANT HAS PROBABLE CAUSE FOR THE SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO WIT:
The AFFIANT, Ben Perales, is a licensed Peace Officer in the State of Texas and has been employed with the El Paso County Sheriff's Office for the past Twenty-two years. The affiant is currently assigned to the El Paso County Sheriff's Office Border Crime Initiative Unit.
On or about June 04 2013 the El Paso County Sheriff's Office Border Crime Initiative Unit were conducting a narcotics investigation based on
information received of the SUSPECTED PLACE. The Affiant, Detective Ben Perales and Detective Miguel Liano and Deputy Hilario Calanche approached the SUSPECTED PLACE and met with the SUSPECTED PARTY in front of the SUSPECTED PLACE.
The AFFIANT asked the SUSPSECTED PARTY if he could speak to him and he said yes. The AFFIANT identified himself as Detective Perales and advised him that he was conducting a narcotic investigation. Surveillance had observed the SUSPECTED PARTY in the mechanic shop of the business and in the front of the business opening the front door. The Affiant asked the SUSPECTED PARTY if he worked at the SUSPECTED PLACE and he said yes, and that he had been working there for approximately two years. The SUSPECTED PARTY also told AFFIANT that he was renting the back portion of the business and that he was a mechanic by trade. The AFFIANT then asked the SUSPECTED PARTY if he would give him written consent to search his mechanic shop and he voluntarily agreed to by signing a written consent to search form. The AFFIANT then asked the SUSPECTED PARTY if he could bring a canine dog to expedite the search and he agreed. Deputy Alfredo Tellez and his Canine partner Quattro arrived. Deputy Tellez and his Canine Quattro are certified as a narcotic team by the National Narcotic Detector dog association to sniff the odor of cocaine, Marijuana, Methamphetamines and Heroin. Canine Quattro alerted to the odor of narcotics inside the mechanic shop and to the door of an office located inside the mechanic shop. The office was locked and the SUSPECTED PARTY said that he did not have keys to the office. The AFFIANT believes that the SUSPECTED PARTY might have narcotics and U.S. currency at the SUSPECTED PLACE. [Emphasis added].
Detective Perales also submitted a Spanish-language consent form signed by Appellant with the warrant application. Verbatim, the passage in Spanish most relevant to this proceeding is as follows (italics denote pre-printed language, bold denotes handwritten entries into blank spaces, asterisks denote pre-printed language circled in pen):
Yo, por medio de esta, autorizo a Det . Ben Perales y Det . Miguel Liano , agente(s) del Departamento del Alguacil del Condado de El Paso, para conducir un registro de mi NEGOCIO (premisos, **vehiculos**), localizada en 4020 Montana , el Condado del El Paso, Texas.
The English language version of this passage, printed above the Spanish version, is blank, but with corresponding blanks filled, Appellant's Spanish consent form translates into English as:
I hereby authorize Det . Ben Perales and Det . Miguel Liano Deputy Sheriff(s) of the El Paso County Sheriff's Department, to conduct a complete search of my BUSINESS (premises, **vehicles**), located at 4020 Montana , El Paso County, Texas.
Appellant moved to suppress the narcotics on the basis that Detective Perales' affidavit misrepresented the actual scope of consent Appellant gave during their initial encounter. At the Franks hearing, Appellant admitted that he signed the consent form. However, he testified that he did not read the form, and that Detective Perales never read the form to him; he only asked Appellant for consent to a search of his business' vehicles. Appellant maintained that he only gave consent for a search of the vehicles.
Following closing arguments, the State, over objection, reopened its case to allow Detective Perales to testify about what the consent form meant:
Q. All right. And when you asked him, how did you go about it? Did you read to him and fill it out or what did you do?
A. As I was reading it to him, I was filling it out.
Q. Okay. And when you asked him for consent, what were you asking him for consent to search of?
A. I was asking for his business and including his vehicles, as is stated in the document here.
Q. Okay. So at what point does it say business?
A. 'Negocio.'
Q. Okay. And when you wrote that in, were you telling him what you were writing in or showing him.
A. I was showing it and reading it to him.
Q. So both?
A. Yes, ma'am.
Q. Okay. So when you put 'negocio,' what did you mean?
A. I meant his business.
Q. Okay. And did he understand?
A. Yes, ma'am.
Q. Okay. And who circled 'vehiculos' ?
A. 'Vehiculos,' I did.
Q. Okay. And why did you circle that?
A. Just to inform him that I'm also asking permission for his vehicles also.
The trial court denied Aceves' Franks motion. The trial court did not file findings of fact and conclusions of law when requested to do so. Aceves then pleaded guilty to both offenses, but reserved his right to appeal the suppression ruling. This appeal followed.
DISCUSSION
Appellant maintains that his Franks hearing testimony, coupled with the consent form in which only the Spanish word "vehiculos" is circled, conclusively shows that Detective Perales only obtained permission to search the vehicles on the premises and that the statement in his affidavit that he requested permission to search the business was false. As such, the statement must be stricken, and without this key piece of testimony, the warrant was unsupported by probable cause. Thus, the trial court erred by failing to suppress the fruits of the warrant. We disagree.
Standard of Review and Applicable Law
"An affidavit supporting a search warrant begins with the presumption of validity." Black v. State, 2015 WL 5604388, at *9 (Tex.App.--El Paso Sept. 23, 2015, pet. filed)(not designated for publication). "Consequently, the defendant has the burden to rebut that presumption by proving by a preponderance of the evidence that the affiant made the false statement deliberately or with a reckless disregard for the truth." Id.
To be entitled to an evidentiary hearing, the defendant must:
(1) Allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false;Cates v. State, 120 S.W.3d 352, 356 (Tex. 2003), citing Ramsey v. State, 579 S.W.2d 920, 922-23 (Tex.Crim.App. 1979). "[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. If at the hearing the defendant proves by a preponderance of the evidence that an affidavit statement was perjurious or made with reckless disregard for the truth, and the remainder of the affidavit is insufficient to establish probable cause, any evidentiary fruits of the search warrant must be suppressed. Id.
(2) Accompany these allegations with an offer of proof stating the supporting reasons; and
(3) Show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant.
"At a Franks hearing, the trial judge is owed great deference as sole fact finder and judge of the witnesses' credibility." State v. Five Thousand Five Hundred Dollars in U.S. Currency, 296 S.W.3d 696, 705 (Tex.App.--El Paso 2009, no pet.). We review the trial court's Franks suppression decision under a mixed standard of review, granting "almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor while we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor." State v. Verde, 432 S.W.3d 475, 481 (Tex.App.--Texarkana 2014, pet. ref'd). "Because the trial court did not make explicit findings of fact, we must review the evidence in a light most favorable to the trial court's ruling." Black, 2015 WL 5604388, at *9.
Analysis
Here, the State does not argue that Appellant was not entitled to a Franks hearing. Rather, the State only contends that the trial court's resolution of conflicting testimony against Appellant at the Franks hearing is entitled to our deference under the standard of review. We agree.
The trial court's ruling in this case suggests the judge made one of two findings of fact—either she believed Detective Perales' testimony over that of Appellant and credited the detective's version of historical facts, or she found that Detective Perales' affidavit contained a misrepresentation, but that the misrepresentation was not an attempt to commit perjury or made with reckless disregard for the truth. See Dancy v. State, 728 S.W.2d 772, 782 (Tex.Crim.App. 1987). Either fact-finding is supported by the scant record before us when viewed in the light most favorable to the trial court's ruling.
Perales testified that he speaks Spanish, that he specifically asked Appellant for permission to search the business premises, and that Appellant verbally consented. Perales also testified that he read the written consent form to Appellant as he filled it in, and that Appellant understood that when he wrote "negocio" in the blank space on the form and circled "vehiculos," he was asking for permission to search both the business and the vehicles present there. Appellant, for his part, denied granting permission to search anything but the vehicles. We concede that it is odd that the consent form supposedly proves Perales had permission to search the business premises and yet on the consent form itself, the Spanish word for vehicles is circled but the word next to it, "premisos"—premises—, is not. However, Perales provided an explanation for why the form appeared that way. In light of this testimony, it was up to the trial court to decide whose versions of events it would credit. Because the trial court's order could be upheld based on an implied historical fact-finding that Perales' testimony was correct and Appellant gave broad consent for a search of the vehicles and the premises, we will defer to that resolution here.
Even if the trial court believed Perales misstated the scope of consent in his search warrant affidavit, a misstatement in an affidavit may only be struck if it is "made with the type of knowledge, intent, or recklessness as contemplated by Franks." Dancy, 728 S.W.2d at 782. In other words, the defendant must show the officer made the statement perjuriously or with reckless disregard for the truth. Id. "A misstatement in an affidavit that is merely the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not render invalid the warrant based on it." Id. at 783. "To prove reckless disregard, a defendant must show that the affiant in fact entertained serious doubts about the truth of his allegations." Davila v. State, 871 S.W.2d 806, 812 (Tex.App.--Corpus Christi 1994, pet. ref'd)(Franks challenge could not be sustained because officer believed inaccurate statements given by informant). The bare conflict alone between Perales' testimony and Appellant's, even in light of the ambiguous consent form, is insufficient to establish that Perales recklessly disregarded the truth in his affidavit. Appellant bore the evidentiary burden here. The state of the record supports conflicting inferences. "The trial court as fact finder has the power to resolve conflicting evidence and believe all, some, or none of the testimony, contradicted or otherwise." Salome v. State, No. 08-12-00256-CR, 2014 WL 1513128, at *2 (Tex.App.--El Paso Apr. 16, 2014, no pet.)(not designated for publication). Because the trial court's implied factual finding on Perales' intent falls within the zone of reasonable disagreement, we will not disturb the trial court's ruling on appeal. Salome, 2014 WL 1513128, at *2. Issues One and Two are overruled.
CONCLUSION
Having overruled Appellant's issues, the judgment of the trial court is affirmed. January 27, 2016
YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)