Greene v. State
358 S.W.3d 752
Tex. App.2011Background
- Greene pled guilty to possession of less than one gram of methamphetamine under a plea bargain.
- suppression hearing concerned the legality of the search of Greene’s residence (a mobile home) under a warrant signed Sept. 25, 2009.
- Detective Buchanan testified the warrant’s address was not on the face of the warrant but in the accompanying affidavit, which was not provided to Greene.
- another warrant issued the same day for Greene’s neighbor’s address with identical face but different issuance time; both affidavits were admitted.
- Greene testified he only received the first page of the warrant and the officers did not permit him inside during the search; he stood by the road.
- the trial court denied the motion to suppress and explained it on the record; Greene sought written findings of fact and conclusions of law, which were timely requested but not reduced to writing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the search warrant given facial defect and no copy of the affidavit | Greene argues warrant facially defective; no affidavit copy | State relies on incorporation of affidavit and lack of prejudice | Search valid; incorporation suffices; no prejudice shown |
| Need for written findings of fact and conclusions of law | Greene requested timely findings | Oral findings on the record were adequate; no abatement required | No abatement; record contains findings; Cullen not requiring written findings where oral findings exist |
Key Cases Cited
- Cullen, State v., 195 S.W.3d 696 (Tex.Crim.App. 2006) (timely oral findings on motion to suppress can suffice to avoid abatement)
- Gerstenkorn, State v., 239 S.W.3d 357 (Tex.App.-San Antonio 2007) (no abatement where record contains necessary findings)
- Proctor v. State, 356 S.W.3d 681 (Tex.App.-Eastland 2011) (affidavit incorporated by reference; validity upheld)
- Turner v. State, 886 S.W.2d 859 (Tex.App.-Beaumont 1994) (failure to provide warrant/affidavit copy does not automatically invalidate search)
- Gonzales v. State, 743 S.W.2d 718 (Tex.App.-Houston [14th Dist.] 1987) (affidavit incorporated by reference; warrant valid if supported by affidavit)
- Phenix v. State, 488 S.W.2d 759 (Tex.Crim.App.1972) (affidavit/ warrant incorporation as proper)
- Long v. State, 132 S.W.3d 443 (Tex.Crim.App.2004) (particularity limited by incorporation; search proper)