Opinion
No. 11-01-00090-CR
May 20, 2004.
Appeal from Stephens County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
On Remand
The jury convicted Jesse Dan Cates of the offense of possession of a controlled substance (methamphetamine weighing 4 grams or more but less than 200 grams) in a drug-free zone, found the enhancement allegation to be true, and assessed punishment at confinement for 25 years and a $10,000 fine. This court previously affirmed appellant's conviction on original submission. Upon appellant's petition for discretionary review, the Court of Criminal Appeals determined that the trial court effectively denied appellant his right to a full Franks evidentiary hearing by denying him the opportunity to present testimony or any other evidence to prove his allegations of falsity with respect to the affidavit in support of the search warrant for appellant's residence. Cates v. State, 120 S.W.3d 352, 359 (Tex.Cr.App. 2003). The Court of Criminal Appeals reversed the judgment of this court, held that the trial court abused its discretion in refusing to permit the defense to call witnesses to testify at a Franks hearing, and remanded the cause to this court for further proceedings consistent with the opinion of the Court of Criminal Appeals. Cates v. State, supra.
Franks v. Delaware, 438 U.S. 154 (1978).
On March 18, 2004, we abated the appeal so that appellant could present testimony and other evidence in support of his allegations regarding the falsity of the probable cause affidavit. See Crosson v. State, 36 S.W.3d 642 (Tex.App.-Houston [1st Dist.] 2000, no pet'n). The trial court has now held a full Franks hearing and entered findings of fact and conclusions of law as ordered by this court. At the conclusion of the hearing, the trial court overruled appellant's motion to suppress. We affirm.
With respect to the Franks issue, appellant has urged that the trial court erred in denying his motion to suppress due to the lack of probable cause because the affidavit in support of the search warrant contained false information. Appellant contended that the officer's affidavit contained deliberate falsehoods as to the description of the confidential informant and the information allegedly conveyed to the officer by the informant. In his motion to suppress, appellant specifically asserted that the portions of the affidavit alleging the following facts were deliberately false:
1. That affi[ant] has known the confidential informant for a period of over three (3) years.
2. That the confidential informant has provided information to the affiant in the past in reference to drug offenders in the Stephens County area.
3. That the confidential informant is employed in a lawful occupation within the community.
4. That the confidential informant had voluntarily admitted his own abuse of drugs, but no longer condoned the abuse of drugs.
5. That the affiant knows that Willie Cates was arrested for assault and believes that officers may be in jeopardy if they announce their presence.
6. That within the 72 hours just passed before the making of the affidavit, the confidential informant had been in the Defendant's residence . . . and had observed the suspected parties: "Donnie Hope" and "Willie Cates" in possession of an off-white powder substance that Donnie Hope reported to be methamphetamine.
In Franks, the Supreme Court addressed the issue of using false information in an affidavit that supports a warrant. The Court held that, when an allegation of perjury or reckless disregard is established by the defendant at a suppression hearing by a preponderance of the evidence, the false information must be disregarded. If the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded. Franks v. Delaware, supra at 156; Hinojosa v. State, 4 S.W.3d 240, 246-47 (Tex.Cr.App. 1999). At a Franks hearing, the trial court is the sole fact finder and judge of the witnesses' credibility and of the weight of the evidence. As such, the trial court is owed great deference, and its ruling will not be disturbed unless it is outside the bounds of reasonable disagreement. Hinojosa v. State, supra; Janecka v. State, 937 S.W.2d 456, 462 (Tex.Cr.App. 1996), cert. den'd, 522 U.S. 825 (1997).
At the Franks hearing in this case, appellant and his wife, Willie Marie Hope Cates, testified. Appellant also introduced a transcript of the previous testimony of Willie and four people who were at her house on the day that the confidential informant purportedly saw Willie and Donnie in possession of methamphetamine. The gist of all of this evidence was that nobody had been present in appellant's home when Willie and Donnie were present; that no adults other than those witnesses had been in appellant's home on the date in question; and that, within a few days of the warrant, appellant himself had been to the police station in an attempt to file criminal trespass charges on Donnie, who was appellant's brother-in-law.
The transcript of Officer Marty Baker's previous testimony was also introduced at the Franks hearing. According to Officer Baker, all of the information contained in his affidavit was accurate. Officer Baker testified that he was working undercover as an agent with the West Central Texas Interlocal Crime Task Force on February 17, 1999, when he dropped a confidential informant off at appellant's residence. The confidential informant returned and informed Officer Baker that Willie and Donnie were in the residence in possession of a substance that they indicated was methamphetamine. Officer Baker also confirmed that he had known the informant for over three years, that the informant had provided information in the past, that the informant was employed in the community, that the informant admitted prior drug use, and that Willie had previously been arrested for assault. Officer Baker testified further that the information contained in his affidavit had nothing to do with appellant's visit to the police station to file a complaint against Donnie. Officer Baker testified that he had no knowledge of appellant's visit to the police station.
We hold the trial court's ruling was not outside the bounds of reasonable disagreement. The issue at the Franks hearing in this case came down to a credibility determination. Consequently, we must defer to the trial court's implicit rejection of appellant's evidence. Hinojosa v. State, supra at 247. Appellant's contention under Franks is overruled.
The judgment of the trial court is affirmed.