Opinion
05-22-00530-CV
06-09-2023
JEREMY MICHAEL LIEBBE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court Kaufman County, Texas Trial Court Cause No. 19-90393-86-F
Before Justices Reichek, Nowell, and Garcia
MEMORANDUM OPINION
ERIN A. NOWELL, JUSTICE
The State charged Jeremy Michael Liebbe with multiple criminal offenses, including impersonating a public servant and criminal trespass with a firearm. Appellant pleaded guilty to criminal trespass, and the trial court signed an order of deferred adjudication and also ordered the other charged offenses dismissed without prejudice. Appellant then filed several motions to recover personal property and destroy digital property. On April 28, 2022, the trial court signed orders regarding the disposition of property seized from appellant during the criminal investigation. Appellant appeals from these orders.
Appellant's notice of appeal states: "Defendant Jeremy Michael Liebbe states his intent to appeal the Order Denying Liebbe's Third Motion to Return Property signed on April 28, 2022, the Order Denying Liebbe's Motion Regarding Disposition of Digital Property signed on April 28, 2022, and the unsigned Order Denying Liebbe's Motion to Dismiss (final) ruled on April 28, 2022, as well as any other rulings subsumed therein, in State of Texas v. Jeremy Michael Liebbe, No. 19-90393-86-C, in the 86th Judicial District Court, Kaufman County, Texas."
In six issues, appellant argues the trial court erred by: (1) issuing thirteen search warrants during the pendency of the criminal case; (2) refusing to consider the two interventions related to third-party records; (3) refusing to order the release of his tangible property; (4) refusing to order the destruction of the States copies of his digital property; (5) failing to order the final dismissal of the criminal case before it; and (6) failing to enforce its July 8, 2021 and March 14, 2022 orders. We affirm.
In addition to issuing this opinion today, we also issue an opinion in Ex Parte Liebbe, No. 05-22-01002-CR.
FACTUAL BACKGROUND
Appellant was charged with several criminal offenses after an encounter with another individual in Forney, Texas. The facts underlying that encounter are not relevant to this appeal, and we do not recite them here. See TEX. R. APP. P. 47.1. During the pendency of the criminal investigation, the police obtained thirteen search warrants and seized property from appellant. Subsequently, appellant filed a "motion to return property." His motion states that, as part of the investigation, the police seized several pieces of computer hardware containing files that are protected by "legal privilege, medical privilege, psychological privilege, HIPPA generally, and/or other legal claims of confidentiality." No ruling on this motion appears in the record. Several months later, appellant filed an "amended motion to return property." The motion states that as part of their investigation, police officers executed a search warrant and seized property belonging to appellant, and "[n]one of these items were in and of themselves contraband." Appellant again sought return of the computer hardware that had been taken as well as a court order that the police "wipe" the data on a hard drive belonging to the police. On July 8, 2021, the trial court signed an agreed order, which states:
AGREED
ORDER
On this 8 day of July, 2021, came on to be heard Petitioner's Motion to Return Personal Property. The Court also heard and considered The Liebbe Finn, P.C.'s Petition in Intervention and Angelsword LLC's Petition in Intervention related to Mr. Liebbe's Motion. Said Motion is hereby GRANTED.
The Forney Police Department or the relevant custodial law enforcement agency is hereby ORDERED to restore and return to Mr. Jeremy Liebbe all personal property seized by law enforcement in this case, including but not limited to:
1. Olympus model VP-10 digital recorder,
2. Apple iPhone 7,
3. AT&T SIM card from the iPhone,
4. Life Proof iPhone case,
5. Apple Series 2 Watch with black metal band
6. Crosstour model CR900 front and rear in car camera recorders,
7. SanDisk Ultra Plus 128GB MicroSD card from the Crosstour recorder,
8. CD labled “Criminal Presspass” and,
9. Parties have agreement as to the computors
On February 24, 2022, appellant filed a motion for issuance of show cause orders. In that motion, appellant stated the July 8, 2021 Agreed Order required the Forney Police Department or other relevant custodial law enforcement agencies to return his property. Although the Forney police returned some of his property, the police and the prosecutor advised him that other property was being held at the Mesquite Police Department. The Mesquite Police Department returned none of his property, and appellant also contends two of his hard drives were wiped or otherwise damaged while they were in the custody of the Mesquite Police Department. Accordingly, appellant moved the trial court to hold an evidentiary hearing wherein the Forney and Mesquite Police Departments would be required to show cause why they should not be held in contempt for their alleged failures to comply with the July 8, 2021 Agreed Order; he also sought a finding of contempt.
On February 24, 2022, appellant filed his third motion to return property. In that motion, appellant asked the court to order law enforcement to return his wallet, retired law enforcement credentials, miniature 5-point star badge, peace officer identification card issued by the Texas Commission on Law Enforcement, License to Carry identification card issued by the Texas Department of Public Safety, private security identification cards issued by the Texas DPS, and other law enforcement/private security related items.
The trial court held a hearing on appellant's motions on April 28, 2022. Officers from the Mesquite and Forney Police Departments testified about appellant's property in the possession of each department. On the same day, the trial court signed an order denying appellant's third motion to return property and, separately, signed the following orders:
ORDERS
On the 14th day of March, 2022, came on to be considered Liebbe's Motion for Issuance of Show Cause Orders. Said Motion was Granted, and a Show Cause hearing was heard on the 28th day of April, 2022.
The Court FINDS DOES NOT FIND the Forney Police Department in criminal contempt for disobedience of this Court's order dated July 8, 2021, relating to the disposition of property belonging to Mr. Liebbe.
The Court FINDS DOES NOT FTND the Forney Police Department in civil contempt for disobedience of this Court's Order dated July 8,2021, relating to the return of property belonging to Mr. Liebbe.
The Court FINDS DOES NOT FIND the Mesquite Police Department in criminal contempt for disobedience of this Court's Order dated July 8, 2021, relating to the return of property belonging to Mr. Liebbe.
The Court FINDS I DOES NOT FIND the Mesquite Police Department in civil contempt for disobedience of this Court's Order dated July 8, 2021, relating to the return of property belonging to Mr. Liebbe.
The Court FINDS DOES NOT FIND the Forney Police Department in criminal contempt for disobedience of this Court's Order dated March 14, 2022, relating to the production of records to Mr. Liebbe no later than the IO01 day prior to this show cause hearing.
The Court FINDS DOES NOT FIND the Forney Police Department in civil contempt for disobedience of this Court's Order dated March 14, 2022, relating to the production of records to Mr. Liebbe no later than the 10th day prior to this show cause hearing.
The Court FINDS DOES NOT FIND the Mesquite Police Department in criminal contempt for disobedience of this Court's Order dated March 14, 2022, relating to the production of records to Mr, Liebbe no later than the 10th day prior to this show cause hearing.
The Court FINDS DOES NOT FIND the Mesquite Police Department in civil contempt for disobedience of this Court's Order dated March 14, 2022, relating to the production of records to Mr. Liebbe no later than the 10th day prior to this show cause hearing.
The Court hereby ORDERS the Forney Police Department to pay fines in the amount of for criminal contempt of court.
The Court hereby ORDERS the Mesquite Police Department to pay fines in the amount of
$ ___ for criminal contempt of court.
The Court hereby ORDERS the Forney Police Department to pay fines in the amount of
$ ___ for civil contempt of court.
The Court hereby ORDERS the Mesquite Police Department to pay fines in the amount of
$ ___ for civil contempt of court.
The Court hereby ORDERS the Forney Police Department to pay $ ___ directly to Mr Jeremy Liebbe for sanctions.
The Court hereby ORDERS the Mesquite Police Department to pay $ ___directly to Mr Jeremy Liebbe for sanctions.
LAW & ANALYSIS
A. Search Warrants
In his first issue, appellant argues the trial court erred by issuing thirteen search warrants to law enforcement during their investigation. Appellant argues the number of search warrants was excessive, the warrants suffer from "repetitive vagueness" about why the police sought to search appellant's media devices and stored communications, the warrants were sloppy, the warrants show a "clear intent to engage in a fishing expedition," and the warrants contain false statements. In response, the State asserts these objections are not preserved for appeal because appellant failed to obtain a ruling on his objections in the trial court and his objections below do not comport with his complaints on appeal. In his reply brief, appellant responds that he did detail his objections to the search warrants in the motions that are the subject of this appeal and, by denying his motion regarding disposition of digital property, "the trial court effectively ruled on Appellant's objections to the validity of the search warrants."
Appellant complained about the search warrants in his "Motion Regarding Disposition of Digital Property." Although the record includes proposed orders on this motion, none of those orders is signed. Appellant asserts the trial court verbally denied his motion during the April 28, 2022 hearing. We disagree. While the issue was raised during the hearing and the trial court did not appear favorably inclined toward the motion, it did not deny the motion on the record. As such, we conclude appellant's first issue has not been preserved for our review. See TEX. R. APP. P. 33.1.
Even if the trial court denied the motion and we assume appellant can challenge the search warrants at this stage in the proceedings, appellant's first issue fails. Appellant's motion regarding the disposition of his digital property argues appellant was entitled to a Franks hearing because of the numerous defects with the search warrants; his motion states that that if he could establish the affidavits supporting the search warrants were insufficient to establish probable cause, then the search warrants would be voided and the fruits of the searches would be excluded. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In the interest of justice, we will consider appellant's first issue to argue that the trial court erred by failing to hold a Franks hearing.
Under Franks, a defendant who makes a substantial preliminary showing that a false statement was made in a warrant affidavit knowingly and intentionally or with reckless disregard for the truth may be entitled by the Fourth Amendment to a hearing, upon the defendant's request. Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007). This hearing is required only where the false statement is essential to the probable cause finding. Id. If the defendant establishes the allegation of perjury or reckless disregard by a preponderance of the evidence at the hearing, the false material is set aside. Id. If the remaining content of the affidavit does not then still establish sufficient probable cause, the search warrant must be voided and the evidence resulting from that search excluded. Id.
To be granted a Franks hearing, a 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;
(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 issuance of the warrant.Id. "Thus, specific allegations and evidence must be apparent in the pleadings in order for a trial court to even entertain a Franks proceeding." Id.
Assuming appellant's motion regarding the disposition of his digital property was a motion for a Franks hearing, appellant did not satisfy the three elements outlined above to establish a prima facie violation under Franks. See id. Accordingly, for this reason also, we conclude nothing was preserved for appellate review. See id.
B. Interventions
The Liebbe Firm and Angelsword, LLC each filed a petition in intervention on December 23, 2020. Both petitions state the intervenors seek to intervene in appellant's "Amended Motion to Return Property and Supplemental Motion Regarding Property." The intervenors alleged the seized computer hardware contained confidential and privileged records belonging to them or their clients. In his second issue, appellant argues the trial court erred by refusing to consider the attempted interventions. In response, the State asserts the relief the intervenors requested was provided.
For purposes of our analysis, we assume appellant can raise this issue on appeal.
As an initial matter, in its July 8, 2021 Order, the trial court stated it heard and considered the petitions in intervention. The statement is consistent with rule 60, which permits any party with a justiciable interest to intervene in a suit as a matter of right subject to a party filing a motion to strike. See In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008); see also TEX. R. CIV. P. 60. No motion to strike appears in the record. Accordingly, the record does not support appellant's contention that the trial court refused to consider the interventions.
We do not make any determination about whether the intervenors had a justiciable interest in the case because that issue is not before us.
Additionally, even if we assume the trial court did not consider the petitions in intervention-contrary to the July 8 Order-we cannot reverse unless a complained-of error probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1). Appellant has not shown the judgment is improper; rather, the record shows the intervenors received the relief they requested. Bill Liebbe, an attorney, appeared at the April 28, 2022 hearing on appellant's motion to release property. He informed the trial court he was intervening, not in the criminal case, but in "the return of property to protect my client's interests." He stated appellant's seized computers contain his clients' protected information. At the end of the hearing, the trial court stated:
As far as I'm concerned, there's not an intervene - - I've dealt with the issue as a - - with Mr. [Bill] Liebbe as a member of the bar to make sure his concerns concerning his clients, which I believe [the State's attorneys] all went over to make sure we protected that, to make sure that wasn't going to happen. And so . . . I don't know if that was on the record or not, but there was an agreed order put in and made sure that if he needed to get those. And I'm also further ordering there is going to be no dissemination of that information to make sure that doesn't happen.
In response, Bill Liebbe stated: "I appreciate that, Your Honor. Thank you."
Appellant argues the judge's statement "[a]s far as I'm concerned, there's not an intervene - -" shows the court did not consider the interventions. We disagree. The record shows the trial court considered the interventions and the intervenors received the relief requested: protection of the information they assert was on the computers seized from appellant. Having reviewed the record, we conclude appellant has not shown reversible error by the trial court. We overrule appellant's second issue.
C. Tangible &Digital Property
In his third and fourth issues, appellant argues the trial court erred by refusing to order the release of his tangible property and the destruction of the State's copies of his digital property.
In his Third Motion to Return Property seeking return of tangible property, appellant stated law enforcement seized a black leather wallet, retired law enforcement credentials, miniature 5-point star badge, peace officer identification card issued by the Texas Commission on Law Enforcement, License to Carry identification card issued by the DPS, private security identification cards issued by DPS, and other law enforcement/private security related items. On April 28, 2022, the trial denied this motion. On appeal, appellant asserts he is entitled to the return of his tangible property pursuant to articles 18.12 and 18.13 of the code of criminal procedure.
Article 18.12 states: "The magistrate, upon the return of a search warrant, shall proceed to try the questions arising upon the same, and shall take testimony as in other examinations before him." TEX. CODE CRIM. PRO. ANN. art. 18.12. In his brief, appellant does not explain how this statutory provision entitles him to the return of his tangible property. After reviewing article 18.12 and applicable case law, we cannot conclude that it does.
Article 18.13 states: "If the magistrate be not satisfied, upon investigation, that there was good ground for the issuance of the warrant, he shall discharge the defendant and order restitution of the property taken from him, except for criminal instruments. In such case, the criminal instruments shall be kept by the sheriff subject to the order of the proper court." TEX. CODE CRIM. PRO. ANN. art. 18.13. Appellant asserts that because he was discharged, article 18.13 entitles him to the return of his property. We disagree. Article 18.13's provision that the magistrate shall "order restitution of the property taken from" the defendant is premised on the magistrate finding there was no good ground for the issuance of the warrant. See id. The record before contains no such finding, and thus we cannot conclude the judge was required by Article 18.13 to order restitution of appellant's property to him. We overrule appellant's third issue.
Appellant's fourth issue concerns his "Motion Regarding Disposition of Digital Property." Although appellant's notice of appeal states he is appealing, among other things, the "Order Denying Liebbe's Motion Regarding Disposition of Digital Property signed on April 28, 2022," no such order is in our record. Because appellant failed to obtain a ruling on his motion regarding disposition of digital property, we conclude appellant's fourth issue has not been preserved for our review. See TEX. R. APP. P. 33.1.
D. Dismissal of Criminal Case
In his fifth issue, appellant argues the trial court erred by failing to order the final dismissal of the criminal case. The State responds that this issue is moot.
On February 20, 2020, the trial court signed an order of dismissal stating: "On this date came to be heard the State's Motion to Dismiss the above entitled and numbered cause of action without prejudice. After considering said Motion, the Court is of the opinion that the motion should be, in all things, GRANTED. IT IS THEREFORE ORDERED that this cause of action is hereby DISMISSED without prejudice." Appellant subsequently filed a "motion for dismissal and discharge," which the trial court granted. The trial court's order states it "considered Mr. Liebbe's Motion for Dismissal and Discharge. Said Motion is hereby GRANTED. The Court hereby ORDERS that Mr. Liebbe be discharged from deferred adjudication and that Mr. Liebbe's plea be withdrawn and the verdict set aside. The Court FURTHER ORDERS that the accusation, complaint, information, or indictment be dismissed."
On appeal, appellant asserts he is entitled to additional relief in the form of dismissal pursuant to article 42A.111(a) of the code of criminal procedure, which states: "On expiration of a period of deferred adjudication community supervision imposed under this subchapter, if the judge has not proceeded to an adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge the defendant." TEX. CODE CRIM. PRO. ANN. art. 42A.111(a). Appellant does not explain how the trial court's orders do not accomplish the purposes of article 42A.111(a), and we do not see a deficiency in the trial court's orders. Accordingly, we conclude appellant has obtained the relief to which he is entitled and his complaint is moot.
E. Enforcement of Trial Court Orders
In his sixth issue, appellant argues the trial court erred by failing to enforce its July 8, 2021 and March 14, 2022 Orders. The July 8 order required the Forney Police Department or other relevant custodial law enforcement agency to return specific property to appellant. The March 14 order set the date for the show cause hearing and also ordered the Forney Police Department to provide appellant with copies of all reports, memoranda, chain of custody logs, and other written records related to the seizure, handling, and examination of appellant's computer hard drives and stored communications no later than 10-days before the show-cause hearing. Appellant maintains he did not receive the items listed in the July 8 and March 14 orders, and he requests this Court order the trial court to enforce its orders.
On April 28, 2022, the trial court heard testimony from officers of the Mesquite and Forney Police Departments about appellant's property in the possession of each department. After considering the testimony, the trial court entered its April 28 order finding neither police department was in civil or criminal contempt of the July 8 or March 14 order. The trial court's April 28 order does not support appellant's argument that the trial court failed to enforce its July 8 and March 14 orders.
Appellant essentially argues the trial court failed to enforce its prior orders when it found the police departments were not in contempt. This argument could only have been considered through mandamus. "Decisions in contempt proceedings cannot be reviewed on direct appeal because contempt orders are not appealable, even when appealed along with a judgment that is appealable, as here." Cline v. Cline, 557 S.W.3d 810, 812 (Tex. App.-Houston [1st Dist.] 2018, no pet.); see also Iconic Motion Sports, LLC v. Grijalva, No. 02-17-00103-CV, 2017 WL 2471099, at *1 (Tex. App.-Fort Worth June 8, 2017, no pet.) (mem. op.) (quoting In re Off. of Att'y Gen. of Tex., 215 S.W.3d 913, 915 (Tex. App.-Fort Worth 2007, orig. proceeding)). Contempt orders involving confinement may be reviewed by writ of habeas corpus; contempt orders that do not involve confinement may be reviewed only through mandamus. Cline, 557 S.W.3d at 812; Iconic Motion Sports, LLC, 2017 WL 2471099, at *1. Accordingly, we cannot consider appellant's arguments here.
CONCLUSION
We affirm the trial court's orders.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's Order Denying Liebbe's Third Motion to Return Property signed on April 28, 2022, is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 9th day of June, 2023.