Jones v. State

owns or controls the vehi- person that issues). liability cle and Further- to avoid

more, policy question admitted And, at- appellant

into evidence. did not particular legitimacy policy

tack the of that enough trial. That was evidence prop-

establish that the officer conducted a

er Mitchell v. inventory search. See 1) (stating

supra Officer Graham’s

testimony was sufficient to meet that,

State’s because stated as a burden police procedure,

matter of conduct

routine inventories of to protect vehicles department and tow truck drivers from

liability any left in property the vehi-

cles, inventory and he described the 2) vehicle, appellant

of Mitchell’s cross-

examined Officer Graham but no asked

questions the department’s about invento- B)

ry policy, record does not show police department deviation from poli-

cy).

Accordingly, appellant sole issue of judgment

is overruled and the is affirmed. JONES, Appellant,

Rio Shareese Texas, Appellee. STATE 01-08-00828-CR,

Nos. 01-08-01015-

CR, 01-08-01016-CR. Texas, of Appeals

Court (1st Dist.).

Houston

April 2011. Opinion by

Dissenting Sharp Justice

26,May 2011.

Dissenting Opinion from Denial of En

Banc Jennings

Consideration Justice

May Sistrunk,

Kurt Dist. Atty., Crim. Galves- County, Jr., ton B. Warren Goodson Re- Klaren, becca Attys., Asst. Crim. Dist. Gal- veston, for Appellee.

Panel KEYES, consists of Justices SHARP, and MASSENGALE. OPINION ON REHEARING MASSENGALE, MICHAEL Justice. Appellant Rio Shareese Jones has filed rehearing motions for and for reconsidera grant tion en banc. We rehearing and withdraw our majority opinion judg and of January ment issuing the fol lowing in their stead. Our disposition of appeals unchanged. remains Because issuing we are a majority opinion, new motion for en banc reconsideration of our prior opinion is moot. See Brookshire Bros., Smith, Inc. v. & 4 (Tex.App.-Houston n. [1st Dist.] denied). pet.

Jones jury was convicted a (1) possession offenses of of a aby firearm (2) felon,1 possession with intent to deliver weighing cocaine more than grams four less than grams,2 posses- but methylenedioxy sion with intent to deliver methamphetamine (ecstasy) weighing grams more than four but less than 400 Jones true in of- grams.3 pleaded each prior felony fense to convictions for aggra- vated assault Wice, Houston, Finding and arson. Jones Brian W. Mark W. Ste- vens, Galveston, offender, Appellant. for a habitual the jury assessed 46.04(a)(1), (e) § appellate See Tex. number 07 CR case number Penal Code Ann. (West 2010) (third-degree (trial Supp. felony) 01-08-01015-CR). 07CR3567, appellate court case number case 01-08-00828-CR). number Act, 3. Texas Controlled Substances Tex. 481.103(a)(1), §§ Safety Health & Code Ann. Act, 2. Texas Controlled Substances Tex. 481.113(a), (d) (West 2010) (first-degree felo- Safety Health & Code Ann. (trial 07CR3569, ny) ap- court case number 481.112(a), 481.102(a)(3)(D), (d) (West §§ 01-08-01016-CR). pellate case number 2010) (trial (first-degree felony) court case in under in an affidavit in a oath years each offense for punishment all for 219 Pine Road. state that search warrant North judgments and the prison, See concurrently. run initial contact will The affidavit described the three sentences 12.42(d) (West § first informant and the subse- Ann. Penal Tex. Code 2010). brings six Jones issues Supp. buy, specify quent controlled but it did the trial court erred He claims appeal. events. The dates of described suppress evidence denying his motions for requested affidavit also authorization warrant, search pursuant collected entry into the on the no-knock home basis support- his allegations based on had information from Bjerke received proba- to demonstrate ing affidavit failed kept that Jones confidential informant false statements. contained ble long guns in the house and handguns and the trial deni- appeals also court’s He evading past he had arrests for because jury requests for a instruction al of his a.m. resisting arrest. At 12:24 concerning legality a no- day, same issued identity. disclosure of an informant’s warrant, knock-entry search and Texas Finally, legal and factual challenges City executed warrant. police insufficiency his supporting of the evidence police arrived at 219 North When firearm possession conviction Pine, there were two men and one woman felon. We affirm. men driveway. One of the woman, as Ta- Jones. The later identified Background Thomas, driveway misha remained in the 2007, Officer A. September Bjerke approached, as but the two men police Department Special Texas Police City police ran into the house. One team met a confidential informant Crimes Unit the men into the house and found followed whom received information about he along them in one of the bedrooms a being “crack cocaine sold” a home lo- A .22 third man. caliber rifle was seen in at 219 Pine Road in Texas cated North view, plain leaning against a dresser. City, occupied appellant a residence closet, cloth- police found women’s The informant had Rio Shareese Jones. shoes, ing toilet- and men’s and women’s times, numerous been to house cocaine, ries, containing bag powder a a nights being prior latest time about two large cough containing co- syrup bottle a in- meeting. Bjerke began narcotics deine, bag, containing a woman’s a and learned from another Tex- vestigation and Dickinson, letter at a to “Misha Thomas” City police City that a Dickin- officer room, In that police address. Texas same a police son officer had information from in pipe also a shirt with a crack found informant crack second confidential about Security letter from pocket, a the Social being at that address. On cocaine sold a to Jones at La Administration addressed 5, 2007, Bjerke a arranged November address, receipt Marque, Texas and a meeting with confidential infor- the second City transmission service from a Texas and, night, set a “con- up mant that same business, Jones, Octo- made out dated home, buy” using at the the second trolled 24, 2007, ber an address for listing and witnessed con- Bjerke informant. Pine, TC, Jones of “219 Texas.” buy saw Jones come to the trolled and con- captured the bedroom The Jones in the sale. informant door make rifle and letter addressed taining of crack returned with a rock cocaine pocket. found in his weighing midnight 0.8 Just after him. Police grams. $199 to Texas Commis- Bjerke According on November made statements Workforce Analysis police, records checked was not sion employed employed and had not been I.Probable cause to search present time. others were also some arrested, and found a small amount police crack in one pocket cocaine man’s and a Jones’s first issue challenges trial powder amount of cocaine in Thom- small court’s denial of to suppress his motion pocket. as’s evidence from the search of his home alleged based on an lack of cause. The second in the two-bedroom bedroom He filed a beds, suppress motion each case to only home had no a counter with drawers, television, the evidence seized as a result of computer, a a small table, He reclining alleged chair. warrant. that his coffee and Police feder- ecstasy bag rights found tablets in the closet al constitutional state and his consti- ledger and a notebook on the coffee statutory table tutional rights were violated listing names and the coun- amounts. On because the supporting affidavit did not counter, and in ter drawers under reflect sufficient that it: digital scales, police (1) found “three four” failed to show that the act or event cocaine, a “cookie” of crack crack cocaine upon which probable cause was based oc- cocaine, plastic bag, in a a bottle powder period curred within reasonable time cough syrup, pills, codeine various kinds of (2) affidavit; prior to making failed to currency taped together and some in state sufficient underlying circumstances of one hundred On stacks dollars. to establish the credibility reliability wallet, also counter was Jones’s con- informants; the confidential lacked tained his driver’s license. The license underlying sufficient circumstances which expiration had an date of July permit would the conclusion that the al- La Marque, Texas In a box on address. leged contraband was at location the counter near the wallet were some claimed. name, prescription medicines Jones’s hearing At the on the motions to sup- filled at a clinic in Police City. Texas also no press, evidence other than some for a glu- found insulin Jones and by warrant was offered either State or sugar. cometer used to measure blood argument Jones. Both sides tendered on small black cabinet full of movie DVDs the issues raised Jones’s motions. The and video games, located on the same trial court to suppress, denied motions counter and near Jones’s and wallet medi- and, Jones, on the request of entered find- cine, digital were two scales and loaded fact, ings including, part, in relevant Special handgun. .38 Also found in the following: bottles, baby house were numerous razor blades, many measuring cups, bag con- 1. Bjerke Affiant Officer submitted [A.] bullets, taining containing $1,150, a bag a Search Warrant with Affidavit for door, and videocamera the front Judge Search to Darrell Warrant pointing roadway. Nothing toward Apffel 2007. on Novembér baby than suggested other bottles Judge Apffel 2. the Search signed house,

presence of a child in the and offi- and at 12:24 am Warrant Affidavit found, cers testified that codeine is often date, on indicating proba- said stored, transported baby and bottles. ble had been cause satisfied. baby Police also found a with a bottle police spoon thought Bjerke with what was be codeine 3. Officer and other offi- to in it. cers executed the search warrant on to teenth Amendments the United seized and

November narcotics, Constitution, I, Sec- including illegal States Article items Constitution, or currency. tion 9 the Texas guns, and U.S. Article of the Texas Code 38.23 offi- police Bjerke other 4.Officer Thus, Rio Procedure. Criminal Rio Jones Shareese cers arrested Jones arrested of Fire- Shareese of Possession for the offense in violation Felon, probable cause POCS: Cocaine With arm Fifth, Sixth, Fourth, Deliver; POCS: Codeine Intent to Deliver, and POCS: Amendments to to Fourteenth with Intent Constitution, Article Intent to Deliver. States MDMA with United I, 9, 10, Texas or 19 of the Sections following entered the The trial court also Constitution. of law: conclusions Warrant 1. Affidavit Search The dire, trial voir Jones’s Before start of cause reflect sufficient does objected at trial counsel to admission the issuance of the Search justify to as a result of the evidence obtained Warrant. granted The trial search warrant. court for Search Warrant 2. The Affidavit running objection this evidence. Jones cir- underlying contains sufficient the credibili- to establish

cumstances a. of review Standard reliability of confidential ty and review a trial court’s decision We informant. suppress a motion under a bifur deny for Search Warrant 8. The Affidavit review, almost giving cated standard of underlying cir- contains sufficient trial court’s determi total deference to the permit which would cumstances depend nation of facts that historical contra- alleged conclusion credibility, reviewing de the trial novo in which it was at the location band the law facts. application court’s to those was claimed. (Tex. Hubert v. 312 S.W.3d Affidavit Search Warrant Crim.App.2010); see Carmouche information contains sufficient (Tex.Crim.App. 327-28 act event show 2000). explicit court When a trial makes oc- was based fact, determine whether the findings we pri- a reasonable time curred within evidence, favor light in the most viewed making the affidavit. ruling, those supports able to trial court’s 5. Affidavit Search Warrant The Iduarte, findings. v. 268 fact See State to es- information contains sufficient 544, (Tex.Crim.App.2008); S.W.3d 548 the al- probable cause tablish (Tex. 808, Kelly, v. 818 State be at the leged contraband would legal The trial Crim.App.2006). court’s at the time the search war- location conclusions, hand, subject other are on the signed and executed. rant was review, de novo not deference. See Therefore, since Probable Cause 559; Hubert, Shep 312 v. S.W.3d at State sus- by Judge Apffel and was found 281, (Tex.Crim.App. 271 291 pard, S.W.3d Court, results of by this tained 2008). are admissible the Search Warrant a com of law fact in trial When a defendant raises

as matter sup that a have been in violation of search should plaint were not obtained Fifth, no Fourth, Sixth, magistrate had and Four- because the pressed 733 warrant, Gates, 238-39, cause to issue a search 462 probable U.S. 103 S.Ct. States, review the determi 2332 Jones v. magistrate’s (citing we do not United 362 novo, 257, 271, 725, 736, but in 80 probable nation of cause de U.S. S.Ct. 4 L.Ed.2d (1960)). “great deference” standard 697 The Court of apply Ap stead Criminal State, Swearingen peals of review. 143 has construed this “flexible and 808, nondemanding” 810-11 (Tex.Crim.App.2004); S.W.Sd standard to apply to Gates, 213, see Illinois v. also U.S. Texas Constitution as well. Rodriguez, 2317, 2330-31, 234-37, then, 103 S.Ct. 76 232 60. Our inquiry, S.W.3d at is (1983). law, facts, coupled L.Ed.2d Under Texas whether there are sufficient facts, with shall issue inferences from those “[n]o to estab ... unless are first purpose probability” sufficient facts lish a “fair that evidence of a presented satisfy magistrate particular will issuing likely crime at a found exist for given does fact location. See id. at 62. Our review issuance[,]” and set its sworn affidavit is limited to the four “[a] corners of the affida vit; ting establishing forth substantial facts during statements made motion every cause shall be in suppress hearing filed do not factor into our in which a is re stance search warrant Massey determination.

quested[J” art. S.W.2d 148 (Tex.Crim.App.1996); Tex.Code Crim. Proc. Ann. 18.01(b) 2010). (West Supp. re Appellate McKissick v. affidavit in a search (Tex.App.-Houston view of an pet. [1st Dist.] ref'd). warrant is conducted under a defer highly standard, interpreting ential affidavit Supreme The Court explained has manner,

in a commonsensical and realistic how we must review determinations deferring to all reasonable inferences probable cause: that a could have made. Rod scrutiny by [A]fter-the-faet courts of (Tex. riguez of an sufficiency affidavit should Crim.App.2007). take form of de novo A review. magistrate’s “determination of Gates,

In Illinois v. the United be paid great by cause should deference Supreme States Court the tra reaffirmed reviewing neg- courts.” “A grudging or totality-of-the-circumstances ditional anal ative attitude to- reviewing courts ysis for Fourth probable- Amendment ward warrants” is inconsistent cause determinations: Fourth strong preference Amendment’s of the issuing magistrate task pursuant for searches conducted to a to make a simply practical, common- warrant; “courts should not invalidate whether, sense decision all the given interpreting warrants] affidavits] circumstances set forth in a hypertechnical, rather than a common- him, including “veracity” before sense, manner.” knowledge” persons supply- “basis of information, Gates, hearsay is a fair ing there 462 U.S. 103 S.Ct. at 2331 (citations omitted) probability contraband or evidence (quoting Spinelli v. States, 410, 419, of a crime will be particular found in a 393 United U.S. 89 S.Ct. 584, place. 591, (1969); And the duty reviewing of a 21 L.Ed.2d 637 United Ventresca, simply 102, 109, court magis- 108, is ensure that the States v. 380 U.S. 746, (1965)). 741, trate had “substantial for ... basis 85 S.Ct. 13 L.Ed.2d 684 concluding]” that, cause exist- The for holding rationale this as case, ed. was true in this affidavits “are nor- 734 was “re- argument that this nonlawyers in the midst instead states

mally drafted investigation. It is axio- a criminal without contradiction.” haste of counted speci- of elaborate counsel is not argument matic requirements Technical law under common 922 S.W.2d ficity once exacted evidence. See Hutch place in this proper 166, no pleadings have has (Tex.Crim.App.1996). Jones 173 235, at Gates, at 103 S.Ct. 462 U.S. evidentiary area.” provide an failed to therefore Ventresca, at 380 U.S. (quoting 2330-31 adequacy of the affida- basis to contest 746). 108, The traditional stan- at 85 S.Ct. description vit to its respect magistrate’s of a judicial review dard to be searched. location been determination “has probable-cause a ‘sub- long had

that so reliability Credibility and c. concluding]’ ... stantial basis of informant wrong- uncover evidence of search would that the affi Jones next contends requires no Amendment doing, Fourth davit was insufficient to show Gates, at 103 S.Ct. 462 U.S. more.” description of cause the affidavit’s because Jones, 362 U.S. at 80 (quoting at 2331 contains the initial confidential informant 736). “This ‘substantial basis’ at S.Ct. reliability his credi no statement about or ‘does mean standard review bility Bjerke personal no and because had stamp be a rubber reviewing court should confidential knowledge about second magistrate’s that the deci- but does mean reliability credibility. day in informant’s carry the doubtful sion should cases, reviewing if the court marginal even that the Dick The affidavit stated result de

might reach a different ” Department inson had established Police novo review.’ Flores that the second confidential informant (quoting 6 (Tex.Crim.App.2010) There is no bar on reliable and credible. Wayne R. LaFave, A Search Seizure: hearsay determining proba use of Fourth Amendment Treatise States, ble See Jones v. cause. United (4th 11.7(c), Supp. & § ed. 2004 735-36; 269-71, 80 S.Ct. U.S. 2009-2010)). States, Brinegar v. United U.S. b. Location 1302, 1309, 172-73, 93 L.Ed. 69 S.Ct. that the first contention is (1949). Jones’s the Texas post-Gaies opinion, In a it did not affidavit was insufficient because Appeals that hear Court of Criminal held premises to be adequately describe say may be used to show argument was not made searched. This basis for long so as there is substantial suppress. Jones’s written motion hearsay. crediting the Wilkerson at 219 the residence describes (Tex.Crim.App.1986). detail, Pine in considerable North Road Here, beyond went Bjerke’s affidavit hearing sup on the motion to but at that the confiden mere statement second argued that the affi press, Jones’s counsel tial was reliable and credible. informant no inadequate because it made davit was instanc previous The affidavit referred that the con mention of the fact residence correct provided es in which the informant garage apartment. of a and a duplex sisted to the police information to the that led Jones, however, provided no evidence and ar of controlled substances seizure hearing. this at the as challenges neither this rests. Jones that a law appeal, argues nor sertion on appeal, On does not claim that Jones evidence, rely on infor- enforcement officer cannot counsel was but argument his mation a fellow officer to establish the controlled buy from to the determination of probable The affidavit probable cause. also refer- cause. investigation Bjerke’s enced own and es- part, In relevant provides affidavit buy, of the controlled

tablishment which following temporal references related confidential informant utilized. to the controlled buy: Bjerke While at trial that testified there ... recently Affiant received informa- was no for initial basis informant’s tion from a confidential informant in ref- reliability credibility, second infor erence to crack cocaine being sold out of mant supplied same information to the the residence located at 219 North Pine i.e., police, selling Jones was crack Road. cocaine. The failure of affidavit to After obtaining information about

establish the first informant’s reliability 219 North began Pine Road Affiant credibility is therefore not fatal. Low See narcotics investigation.... (Tex. ery v. S.W.2d 'd). App.-Dallas pet. ref Affiant arranged make a narcotics location, buy suspect 219 North appeal, argues On Jones also for Road ... buy Pine [the controlled the first time that the affidavit contains testing field are then in the described hearsay” regarding “double that second past tense]. confidential informant. Because this issue court, was not raised the trial it has preserved

been for any review and error Based on the information provided to Tex.R.App. has been waived. P. See Affiant the source and other confi- 33.1(a)(1) (requiring party raise informants, my indepen- dential own ground in trial court for prerequisite investigation, dent Affiant believes appellate complaint). a violation of the Texas Controlled Sub- Act currently place

stances is taking d. of information Staleness Road, City, 219 North Pine Gal- Texas County, veston Texas. third, descrip Jones’s his me Subscribed and sworn before tion, most critical contention is day said Affiant on this the 6th of No- was insufficient to show vember, 2007. cause because it did not state a specific date on buy controlled took The affidavit several includes direct and place. argues He this information indirect to the timing is references First, “linchpin finding buy. Bjerke cause.” controlled described complaint This is a about the “staleness” his contact with the first in- confidential information, “[p]robable “recently.” because formant as having occurred when, Bjerke ceases to exist the time the After a nar- meeting, “began issued, search warrant it un investigation” suspected would be cotics into the on- presume activity reasonable to items going remain criminal of “crack cocaine McKissick, the suspected place.” investigation being sold.” culminated 214; S.W.3d at see buy forming also Flores 287 in the controlled basis 2009), cause, 310 (Tex.App.-Austin which was described as aff'd, occurring “recently” met (Tex.Crim.App.2010). Bjerke “after” suggest Jones’s brief does not other with the first confidential informant. addition, specificity Bjerke relevance of the on in- the time attested that based 736 during something informants own in- State conceded oral and his from

formation us, argument. question con- The before howev- including the dependent investigation, er, date specific is whether the lack of a buy, drug that offenses trolled he believed is fatal in this case or whether the place 219 North “currently taking at were justi- totality of nonetheless No- Road.” The affidavit was dated Pine finding probable of 6, magistrate’s fied The search warrant was vember 2007. cause. at 12:24 a.m. November issued Bjerke’s affidavit facts that indi- recited warrant,

In order to issue a a drug was continuing operation cated a oc- (1) is “to magistrate required determine (1) first curring: confidential infor- (2) it is now that contraband that told that cocaine Bjerke mant crack (3) premises be ... will on the described (2) Pine; being sold at 219 North after when the warrant executed.” United first speaking to the confidential infor- Grubbs, 90, 96, 126 547 U.S. S.Ct. States mant, Bjerke began then his own investi- (2006); L.Ed.2d 195 see 164 (3) arranged controlled nar- gation; he 18.01(c) also Tex.Code Crim. Proc. Ann. art. buy using the house cotics second (West 2010) Supp. in relevant (providing, informant, Bjerke told confidential who may evidentiary part, purchased what he believed to be rock of not be unless sworn affidavit sets issued cocaine; crack the rock tested forth sufficient facts to establish in a positive for cocaine field test. The constituting cause that evidence to items affidavit also indicated that the information place be searched for are located at be Bjerke’s two informants and field searched). A be able to must closely test was related in time to the ascertain from the affidavit the closeness request for the issuance of the warrant. of time of the event is the basis for Bjerke “recently” that he stated received the war probable cause sufficient issue information from the first confidential in- independent judgment based rant on an investiga- formant. He then initiated an See, e.g., probable cause. Schmidt v. arranged buy. tion and controlled (Tex.Crim.App. more buy controlled occurred even “re- 1983). The attested to in the affida facts Bjerke cently” happened because it after closely vit must “so related to the time tip initial received that and conducted an justi of the warrant as issfuance] independent investigation. As a result fy finding original independent and his tip own States, Sgro time.” 287 U.S. United investigation, that a Bjerke believed viola- 206, 210, 138, 140, 77 L.Ed. 260 S.Ct. tion of the Texas Controlled Substances (1932); see Peltier v. also “currently” taking place Act was 30, 32 Here (Tex.Crim.App.1981); North Pine. (Tex. dia v.

Crim.App.1971). of delay “The amount which will begin analysis noting depends upon

We our that the make information stale case, specific including failure to particular include dates times facts activity type of relevant events in the affida- nature of the criminal described sought.” vit this is not a demonstra- of evidence United States Al case model (5th Cir.2010). len, knowledge tion of the 625 F.3d basis of affiant’s proba- ongoing activity of circumstances a fair suggesting indicating Facts criminal bility long recognized diminishing contraband evidence a have been in a particular place, importance establishing crime will be found 737 (footnotes 3.7(b), § LaFave, in the affidavit: period supra, and immediate 396 omitted). recites a mere isolat “Where the affidavit However, his treatise also ac ed violation it would not be unreasonable knowledges that when an confronted with cause dwindles imply asserting affidavit that critical events oc passage rather with the time. quickly “recently” using curred or other words to However, where the affidavit re properly effect, most courts have been inclined indicating activity cites of a protract facts to hold that this will for language suffice nature, ed and of con continuous course showing of Id. probable cause. at 395 & n. duct, passage of time becomes less regard, this we also note that Johnson, significant.” United States v. case, Sutton v. a pre-Gates 285, (10th Cir.1972), quoted 461 287 F.2d of Criminal Appeals Court held that an LaFave, 3.7(a), 374; § supra, in 2 see stating that “affiants have recent Henderson, 860, v. also Bastida 487 F.2d ly received information from a confidential (5th Cir.1973); 864 Bernard v. 807 informant” was a sufficient reference to 359, (Tex.App.-Houston 365 [14th time when considering totality 1991, pet.). no “Conceding Dist.] (Tex.Crim. 857, 419 affidavit. 861 of appellate decisions courts of other states App.1967). Bjerke’s affidavit referred to advisory, controlling,” are and not Ex “recently” conducted surveillance culmi Hernandez, 275, parte 281 nating in a purchase drugs controlled (Tex.Crim.App.1997), we further observe from the location to be searched and the decided, that since Gates was three state resulting officer’s that a drug belief of supreme courts have held that currently place”; fense “is taking similar existed issuance a search war ly, the Sutton affiant’s reference to “re rant which situations in there was a cently” drugs observed was bolstered continuing drug operation and the search- drugs his belief that now “narcotic are warrant affidavit referred to a recent concealed”—references the Court of Crim event.4 Professor LaFave has observed Appeals inal sufficiently held “were defi upon “recently” that reliance word can nite and current to conclusion cases, be problematic in some particularly that the act event relied as a basis circumstances in “the relevant cause occurred within rea facts nothing are more than a one-time time before making sonable purchase viewing drugs, to which affidavit, only magistrate and authorized the period pass a brief time could before the information could 2 be stale.” issue the search warrant.” Id. at 860-61. Walston, 218, 77, ing Reynolds Ala.App. 4. See 236 State Mont. 768 238 1387, (1989) (holding (1970)) (affidavit's P.2d that continu- So.2d reference ing activity dealing drug criminal such as repeated drug coupled distribution coupled with confidential informant’s state- statement that events occurred "in recent "recently” ment that he had heard defendant "on weeks” and a recent date” was insuf- marijuana growing selling state he was ficient; “A statement in an affidavit for a cause); negate probable was not stale as so to Jones, search warrant that an had 'recent- informant Commonwealth v. 542 Pa. ly' purchased drugs, seen or narcotic when (affidavit’s A.2d evidence of language connected with other that would continuing drug operation coupled with confi- lead to the conclusion that unlawful con- dential informant’s statement "has premises dition those continued exist on just” insuffi- observed contraband was not warrant, application the time of the for the merely cient contain because affidavit did not has been held sufficient show the time Commonwealth, date); Huff alleged place.”). when the violation took (1993) (quot- Va. 194 S.E.2d 695-96 articulated specifically atti- has grudging, negative Mindful that Otherwise, be inconsis- the offi- warrants would facts to evaluate. tude towards prefer- warrant, Amendment’s tent with the Fourth denial of his risks cer/affiant pursuant to trial, for conducted ence searches or re- suppression of evidence at 236, warrants, Gates, 462 at U.S. 103 see on because the warrant appeal versal 2331, temporal the at we hold that S.Ct. a basis. But the law lacks substantial allowed the within the affidavit references magistrate’s we defer to a requires that was a sub- determine there magistrate to reasonable, sense common conclusions concluding that search stantial basis for assessing to issue a war- whether wrongdoing. evidence of would uncover rant. courts must allow Appellate conclusion because affi- reach this We and any reasonably available inferences suggested a continuing adequately davit appropriate defer- provide magistrates “recently” including operation, criminal ence. confi- from the first obtained information case, we For reason in this Id. the same informant, affiant’s own from the dential issue. overrule Jones’s first from confi- investigation, and the second II. motion Franks who made the controlled dential informant buy. supported All of this information issue, con In his second Jones was “cur- affiant’s that violation belief denying court erred in his tends trial on rently” taking place specified date Delaware, pursuant motion Franks sworn, at when the affidavit was and L.Ed.2d 667 438 U.S. 98 S.Ct. 57 more 24 time which was no than minutes (1978), sought he to void the whereby the search before the when specified suppress resulting and all search warrant signed. warrant was allegation evidence based on his state Bjerke’s affidavit contained false Adequacy of e. affidavit evi- ments. order to obtain a Franks Having all of Jones’s conten- considered (1) dentiary hearing, a defendant must: inadequate tions that the affidavit was falsehood dis allege deliberate or reckless out applying standard review set affiant, regard specifi for the truth Gates, we hold Illinois v. affidavit portion affida cally pointing out of the provided with a substantial false; (2) accompany vit claimed to be concluding basis that a search would allegations proof with an these offer at wrongdoing uncover evidence of 219 (3) reasons; stating supporting In so doing, North Pine Road. we follow portion show when of the affidavit of Davis v. an analo- example is from the alleged be false excised gous in which the affidavit at circumstance affidavit, remaining content is insuffi “far from 202 exemplary.” issue was the war cient issuance of (Tex.Crim.App.2006). S.W.3d 157-58 rant. Cates S.W.3d Appeals Court of Criminal observed: (Tex.Crim.App.2003); Ramsey many When inferences must too (Tex.Crim.App. S.W.2d 922-23 drawn, result is a tenuous rather 1979) Franks, 171-72, at (citing U.S. than basis issuance substantial for the 2684-85). at 98 S.Ct. practice for the affi- warrant. Best is evidentiary an hear- seeking Instead of expressly ant to include an officer’s ex- information, be- ing ruling Franks motion perience, background trial, waited after previous with contraband so fore Jones until associations inference, guilt-innocence phase in the that little left to and the State rested presented suppress trial. then his because this attack on the Jones court, in sufficiency motion to the trial Franks affidavit arises show proof an offer of claims that it false made contains statements. Franks, 155-56, argument was false. This consist- See 438 U.S. at 98 S.Ct. 2676; Cates, 355-57; his claim before the search Fenog ed of 6, 2007, lio, was on November issued ever entered his at 219 property no one The only evidence offered Jones purchase crack co- North Pine Road to in the form of a reference to the previous (2) caine, property came person his testimony Bjerke. testify, of Jones did not cocaine, crack but wanting purchase to so he did not offer evidence for the state- away, a few person turned ments in Franks offer proof. his motion of back days person later same came testimony the previous Jones offered of street, purchase asking stood in the to Bjerke just to show that he “had made cocaine, again crack but Jones turned the generalizations and has not been to able away. person Jones called no witnesses specify specifically particular when this evidence, or and offered no affidavits other pro- transaction occurred” and “could not only by pre- but reference to the referred vide spe- detailed information and testimony Bjerke. regard, vious of In this cifically out left information about testified, argued Bjerke Jones that when source and about how he this conducted unable he was to recall details about the None information.” of the tes- referenced buy, as the specific controlled such date or timony Bjerke’s is direct evidence that af- paid the amount to the informant. There addition, fidavit trial was false. In been also had no documentation that mon- the opportunity weigh court had to ey during to paid buy Jones controlled Bjerke’s credibility demeanor, and we had been or person recovered Jones’s to the trial court defer determina- the search his residence. Johnson, tion. See 68 S.W.3d at 652-53. We issue

We review trial court’s deci overrule two. sion on a under suppression Franks issue charge III. Article 38.23 proba the same standard that we review issue, In his con third Jones deficiency, ble-cause mixed standard of failing tends that trial court erred State, Fenoglio review. See 252 S.W.3d jury, pursuant an give instruction to the (Tex.App.-Fort pet. Worth Code of Criminal Procedure article d). give ref total We almost deference to a 38.23(a). See Tex.Code Crim. Proc. Ann. questions trial court’s rulings on of histori 2005). 38.23(a) (West pro art. The statute application-of-law-to-fact ques cal fact and vides: turn tions that on an evaluation credibil by an No evidence obtained officer demeanor, ity we while review de novo other person any provi- violation application-of-law-to-fact questions that do sions of the Constitution laws of upon credibility not turn and demeanor. Texas, State of or of the Constitution or See 652- Johnson America, laws of the United States of 53 (Tex.Crim.App.2002) (citing Guzman against shall be admitted evidence (Tex.Crim.App. any the trial criminal case. accused on 1997)). However, in deciding a Franks may legal motion the trial court consider not In where the case evidence hereunder, only probable-cause jury affidavit but an also raises issue shall believes, party moving the evidence offered be instructed that if it or has 38.23(a) doubt, custody be- regarding evidence was instruction reasonable provisions of the evidence. obtained in violation cause there was no conflict in the event, Article, and in this then such overrule third issue. We Jones’s disregard any such evidence jury shall identify Request confidential IV. so obtained. informant right A to the submission Id. defendant’s issue, con fourth Jones his 38.23(a) “is of an instruction under article in not tends that the trial court erred limited to issues of fact that are disputed identity initial disclosing the of the State’s of a material his claim constitutional or 508(c)(3) under confidential informant Rule statutory render evi- violation would of the Texas Rules of Evidence: inadmissible.” dence Madden v. (Tex.Crim.App.2007). 509-10 If in- Legality obtaining evidence. an informer is relied formation from a defendant is entitled to Before legality establish jury of a instruction under submission means evidence obtained was 38.23(a), must three re article he meet not the and the court is satisfied that quirements: in- information was received from an (1) jury the heard the must evidence reli- reasonably former believed to be fact; raise an issue of credible, may or it iden- require able the (2) the on fact must evidence that be the be The tity of informer to disclosed. contested; affirmatively shall, request of enti- public court on the (3) that must be contested factual issue ty, direct the made in that disclosure be to the of material lawfulness the parties camera. All counsel and con- challenged obtaining conduct in the of be legality cerned with the issue shall evidence. present every stage permitted to be Madden, appeal, 242 S.W.3d 510. On of under this ex- proceedings subdivision the trial should Jones claims court have camera, no cept disclosure at which given the there was instruction because permitted counsel or shall be to be party disputed concerning fact issue the number identity of of present. If disclosure the Pine, i.e., buys of controlled at 219 North camera, the informer is made in buys Bjerke one. two controlled versus pre- record thereof shall sealed and buy, testified one but about controlled the appel- served be made available to testify only not that did there was one late court in the event of appeal, an buy. controlled Another police officer’s shall not be re- contents otherwise testimony that he observed two different public vealed without consent of the en- involving in- buys controlled two different tity. days formants on two different is not nec- trial, 508(c)(3). At Jones Tex.R. Evid. essarily Bjerke’s inconsistent with testi- identity of the moved disclosure of mony. Jones therefore cannot meet the informant, ar- specifically first confidential 38.23(a) requirement second for an article had no to believe guing Bjerke basis instruction, that evidence the number informant reliable or first was buys affirmatively of was con- controlled trial objected, credible. The State and the tested. also has He failed to demonstrate objection. court sustained the dispute of this materiality alleged fact of the lawfulness officers’ conduct. trial appeal, On Jones contends the not grounds there was error in court erred on two he did Accordingly, no (1) not jury charge any preserve from the at trial: the affidavit did absence article any provide any meaningful jury details as to tional could beyond have found a rea buys controlled at 219 North Pine and sonable doubt that the accused committed Bjerke in- allegedly provided misleading all essential elements of the offense. concerning formation the first confidential v. Virginia, 318-19, Jackson 443 U.S. Those informant. issues have been 2781, 2788-89, 99 S.Ct. 61 L.Ed.2d 560 Tex.R.App. 33.1(a)(1). waived. See P. (1979); State, Drichas v. 175 S.W.3d remaining appeal, issue raised on 798 (Tex.Crim.App.2005); Burden Bjerke no had basis to believe that 55 S.W.3d 612 (Tex.Crim.App.2001). credible, first informant was reliable or We must all of “evaluate the evidence in preserved in the trial court. record, circumstantial, both direct and whether admissible or inadmissible.” Jones’s argument reliability about (Tex. Dewberry 4 S.W.3d credibility first informant fails for Crim.App.1999). Because it is the function support sup- same reason it did not trier fact to resolve any conflict of pression evidence from search. The fact, weigh evidence, any evalu second informant supplied confidential witnesses, credibility ate the we do i.e., same police, information to the weight reevaluate the and credibility of selling Jones was crack cocaine. Because evidence, only but jury ensure that the the failure of the establish 740; reached rational decision. See id. at reliability credibility first informant’s Adelman v. did legality not affect the search (Tex.Crim.App.1992); see

warrant, also Matson v. trial the court committed er- no State, 839, 819 S.W.2d 843 (Tex.Crim.App. refusing ror in to direct the disclosure of State, 1991); 238, Muniz v. the 851 identity. first confidential S.W.2d 246 informant’s (Tex.Crim.App.1993). We re See Tex.R. Evid. therefore Lowery, 843 508(c)(3); solve S.W.2d at inconsistencies the evidence in 141. We overrule Jones’s fourth Matson, verdict, the issue. favor of 819 S.W.2d at 843, jury’s “defer credibility and to the and Sufficiency V. pos- the evidence of weight determinations.” Marshall v. by session of firearm a felon State, 618, 210 S.W.3d 625 (Tex.Crim.App. Jones’s challenge fifth sixth issues 2006). legal sufficiency and factual of the evidence to his pos conviction for For to the challenges factual suffi firearm by session of a a felon. evidence, Jones ciency apply of the we also stipulated at trial that he had been convict Virginia v. Jackson standard of review in ed of felony years less than five before light most favorable to the verdict. charged the date ap of the offense. On State, 893, See v. Brooks S.W.3d 894- sufficiency he peal specifically attacks (Cochran, J., op.), 95 (plurality concur of the evidence show “links” between ring) (Tex.Crim.App.2010); see also How himself and weapons State, (Tex. found. See Ev 137, ard v. 333 S.W.3d 137-39 (Tex. ans S.W.3d Crim.App.2011) (characterizing Brooks as Crim.App.2006). factual-sufficiency having “abolished” re view). “To establish unlawful possession

a. of review Standard felon, of a firearm must State assessing In legal sufficiency, previously we must show that the accused was con consider the entire trial record felony to deter possessed victed of offense and whether, mine viewing the evidence in the firearm after the conviction and before verdict, light most favorable to the anniversary a ra fifth of his release from con (9) firearm found place where the was supervision, community finement or enclosed; supervision, whichev affirmative state mandatory was parole, or 264 ments the defendant to the fire er is later.” James connected date arm, (Tex.App.-Houston incriminating including [1st statements ref'd); when pet. see arrested. made defendant Dist.] Tex. Penal 46.04(a)(1). is a vol § “Possession 313 S.W.3d See Williams Code ob possessor knowingly if the untary act (Tex.App.-Houston [1st Dist.] 397-98 thing possessed or is James, receives the ref'd); 219; tains or 264 S.W.3d see pet. thing for a of his control Evans, aware & n. S.W.3d at 162 12. “It also terminate permit time to him to sufficient links that is disposi- is not the number of Id.; his see control.” tive, logical but force of all of Tex. rather Penal Code (West 2003). 6.01(b) § evidence, direct or circumstantial.” Williams, at 398. on the

“If the firearm is not found posses or is not in his exclusive defendant sufficiency Legal b. sion, link affirmatively must the evidence contends that evidence Id. at the firearm.” 218-19. him to Jones to link him legally was insufficient to the may possession by proving State establish Pine. firearms found at 219 North this which demonstrate that the defen links he regard, emphasizes that never ad of his connection with dant “was conscious finger what Id. at mitted firearms and his weapon owning and knew it was.” protects by on them. prints 219. This rule innocent were not found He relative, friend, as a or even not house at the stander —such inside the possessor search, actual to the at least three other had stranger people —from merely Also, because of fortuitous conviction his access to the house. woman’s proximity to a firearm to some belonging handbag found in clothing were Evans, 202 at 161— one else. See the rifle was found. bedroom where State, 62; 176 916 Smith v. S.W.3d in viewing light But the evidence the ref'd). pet. (Tex.App.-Dallas verdict, a most to the rational favorable jury beyond have found reasonable could A nonexclusive list of factors that possessed doubt that Jones firearm. a link between a may establish defendant Jackson, at 99 at found inside house which See 443 U.S. S.Ct. and firearms undisputed 2789. evidence at trial in the defendant’s exclusive con was not (1) (1) living was at 219 showed that: Jones trol includes whether: the defendant (2) (2) there; search; rent paying North was at the time of the Pine and present was view plain rifle in in the was the owner or had the was located the defendant captured by same room where he was right to control the location where the (3) found; in police in the same room which mail firearm was firearm was (4) to view; receipt him and a him at plain the defendant in close addressed to was (3) located; firearm; was his wal- proximity to and had access to the address (5) prescribed him found let and medication firearms or other contraband was (6) defendant; other bedroom near at were located defendant (7) flee; that there was pistol. recognize conduct We tempted by to the defen presence of others at also evidence of the guilt, dant indicated a consciousness of and of of the search women’s including extreme nervousness or furtive (8) shoes, in the clothing, bag and a bedroom gestures; special the defendant had located, firearm; as well as a where the rifle was relationship to the connection prints weapon (noting lack of on either that prosecution usable has no affirmative resulting fingerprint in an absence of evi- duty to every hypothesis rule out except to the linking weap- dence defendant State, guilt); that of Geesa However, in a legal-sufficiency ons. re- 154, 161 (Tex.Crim.App.1991) (rejecting required jury’s view we are to the defer use of hypothesis reasonable analytical weight determinations and resolve incon- construct), grounds, overruled on other sistencies in the evidence in favor of the (Tex.Crim. Paulson v. 28 S.W.3d 570 Marshall, 625; verdict. See 210 S.W.3d at App.2000). Matson, S.W.2d at Viewing Considering legal-sufficiency Jones’s ar- light evidence in the most favorable guments and all in the light evidence verdict, logical we conclude that the force verdict, most favorable to the jury jury from these links is sufficient for the could have found essential elements of beyond have concluded reasonable firearm possession of a a felon. We care, custody, doubt that Jones exercised overrule Jones’s fifth issue. control, management over least the Jackson, pistol. See 443 U.S. 2789;

S.Ct. at Sambath Nhem sufficiency c. Factual (Tex.App.-Houston In addition the arguments made in 2004, no pet.) (holding [1st that de- Dist.] support of legal-sufficiency argument, his phone fendant’s driver’s license and mobile argues Jones was evidence proximity bills in close to contraband were factually sufficient based the follow- sufficient to link him to contra- controlled (1) ing factors: neither firearm was conve- band). niently to him at accessible the time of his Wynn Jones refers us to arrest; (2) gestures; he made no furtive Dist.]), (Tex.App.-Houston S.W.2d 357 [1st special he had no connection grounds, on other 864 S.W.2d 539 aff'd Nevertheless, firearms. as previously not- (Tex.Crim.App.1993), his con ed, the undisputed evidence at trial showed legally tention that the evidence insuf was living that Jones was 219 North Pine ficient. Wynn We consider to be factually there; paying and was rent rifle distinguishable. and legally Wynn, un located in view in plain the same room cases, like the present the defendant was where he police was found not in the house when the firearm was same room in which mail to him addressed found and the firearm was in a room found a him at receipt and to that address was containing Wynn no links to him. also did located; wallet prescribed and his possession a a involve of firearm pistol. medication were located near the charge, but rather dealt whether with a defendant “used exhibited firearm” in Reviewing factual-sufficiency Jones’s ar- of an It commission offense. therefore guments legal-sufficiency under the stan- analyzed was not under the “links” doc considering all of dard and the evidence trine applicable possession to cases. verdict, light to most favorable Wynn no-long was also decided under the jury could found the ele- have essential er-applicable “reasonable ana hypothesis ments of a a possession of firearm lytical analyzed construct” so was felon. is Accordingly, evidence suffi- sufficiency under different standard than Jackson, 319, 99 cient. See 443 U.S. at apply we are to required this case. See S.Ct. State, PD-0109-10, slip Blackman v. No. 13, 2011); op. (Tex.Crim.App. at 11 We sixth Apr. overrule Jones’s issue. search support issuance of sufficient to

Conclusion incident failed to recite when warrant that of the trial judgments affirm We A warrant place). described took search court. “level affidavit must have sufficient of ” to such ... as time specificity [the] of SHARP, dissenting. Justice magistrate would have “a event so that the Justice, SHARP, dissenting. JIM infer [the event] reasonable basis to join majority opinion’s occurred at a time that would substantiate I While object of the legal-sufficiency a reasonable belief that the appellant’s resolution issue, premises to be searched judgments to the Court’s search [is] I dissent grant issuefe].” first issue and warrant ... appellant’s I would time the State, 149, 155, 157 n. for new trial. Davis v. 202 S.W.3d reverse remand added). (Tex.Crim.App.2006) (emphasis issue, appellant’s its first analysis In then that when The court in Davis noted majority confuses and conflates two fails the information in an affidavit to concepts: legal related —but distinct — “give[ a time frame that would corrobo- ] Specificity and specificity. staleness and sought] on rate the existence of item [the in- concepts, but interrelated staleness are premises when the warrant was re- applica- are questions, different volve quested,” it is “insufficient points a review ble to different 157; Id. of a warrant” see also issuance affidavit. search-warrant Sherlock v. adequacy to the Specificity relates (Tex.Crim.App.1982) (holding that affidavit suf- the affidavit recites whether affidavit: “inadequate is if it fails to disclose facts ficiently specific information determine magistrate which would enable as- law, Texas “no probable cause. Under certain from the affidavit that the event any purpose search shall issue for warrant probable which the cause was found- pre- facts first ... unless sufficient are render it ed was not so remote as to satisfy issuing sented ineffective.”) (citations omitted). in fact exist for probable cause does hand, Staleness, other relates to setting “a affidavit on the its issuance” and sworn proba- in the establishing whether the contained forth substantial facts information every probable filed in instance in shows cause. order ble cause shall be affidavit in an requested.” for the information show which a 18.01(b) cause, facts attested to “[t]he Crim. PROC. Ann. art. Tex.Code 2010) added); (West (emphasis closely must be so related to the Supp. see Gates, 213, 238-39, justify the issuance of the warrant as to also Illinois v. U.S. (holding finding cause at the time.” 103 S.Ct. (Tex. have substantial basis for Peltier magistrate must exists). Crim.App.1981) (quoting Heredia v. concluding As timeliness, magistrate (Tex.Crim.App.1971)). S.W.2d question to the of proper the affida- “The method to determine whether need be able “to ascertain [from supporting time the event that the facts search warrant have [of the closeness of vit] examine, light to in the of probable is the basis for sufficient become stale is cause] involved, the indepen- type activity the based an the of criminal to issue on the occurrence of judgment probable elapsing dent of cause.” See time between in the and the 421 the events set out affidavit Schmidt the warrant was issued.” affidavit in- time search (Tex.Crim.App.1983) (holding suspected 214 be found at the place. McKissick Such a asks, (Tex.App.-Houston pet. Dist.] review [1st “Based on in information ref'd). affidavit, timely? was the warrant Was magistrate justified concluding in

Thus, a magistrate before can determine likely it was that the items would still be cause, the probable magistrate must neces- i.e., present, that the that pro- information sarily sufficiently specific first have infor- probable vided basis for cause was not mation evaluation. the case of for an In remote in too time?” issue, in timeliness order to determine whether the information in the affidavit is majority The has up mixed these two too passed stale —whether much time has legal concepts, relying largely legal on the- in between the events the affidavit and the ories question related to the of staleness. issuance of the warrant majority The question states that “the be- make it presume reasonable fore us ... specific is whether the lack of a at the suspected place items remain —the in date time is fatal this case or whether magistrate first be able to must determine totality jus- the affidavit nonetheless how lapsed] [has much “time between the the magistrate’s probable finding tified occurrence in events set out ” and concludes that “we hold that affidavit the time the search warrant provided magistrate with was issued.” See id. concluding a substantial basis for that a Specificity staleness are therefore search would uncover wrong- evidence of interrelated, but distinct. An affidavit that doing.” op. Majority sufficiently specific contains information to satisfy statutory us, constitutional and speci- appeals before appellant does ficity may may requirements not estab- not attack the information in the affidavit probable stale, lish cause. the totality being Whether nor does he ask for his justifies the information the affidavit convictions to be reversed on that basis. probable Indeed, a finding of cause is not the words “stale” or “staleness” Rather, question. question salient appear appellant’s to never discussion of in a specificity answered review on his contention regarding the defectiveness appeal there enough sufficiently Rather, is: “Is appellant’s affidavit. com- pro- information this affidavit to plaint appeal statutory is to the magistrate vide a a substantial basis constitutional defectiveness of the affidavit for determining probable whether failing there to provide magistrate Staleness, contrast, cause?” sufficiently specific deals with information from which whether magistrate the information in the affidavit could make a determination shows that item sought likely is still about timeliness the warrant.1 complaint preserved 1. This ap- upon probable below in or event which cause was pellant’s suppress, appel- which motion based within occurred a reasonable time specifically lant asserted that the prior making the affidavit[ ] who issued the warrant did not have a and one of law to stale- conclusion related concluding substantial basis ness: cause existed because the affidavit failed to 5. The for Search Affidavit Warrant contains recite when of the events sufficient information to establish place. cause was based took alleged cause that the contraband would be trial court one of law made conclusion related at the location the time war- the search specificity, to-wit: signed rant was and executed. 4. The Affidavit for Search Warrant contains information sufficient to show that the act past drugs apartment within on case law from observed majority relies

The Commonwealth, months); the determination regarding states two other Huff (1973) cause when a probable of staleness and 213 Va. 194 S.E.2d 695-96 in the affida- provided is not specific date was evidence (concluding that where there Walston, State v. 768 P.2d vit.2 See drug ongoing operation, of an affidavit’s (1989) “not that evidence was (holding drug activity “in recent reference stated in informant affidavit when stale” permit was sufficient to weeks” heard “recently” defendant he had that that time at issue was period to conclude marijuana, when was growing state period time less one month and for than in affidavit informant stated elsewhere incriminating statement overheard “on a in defendant’s residence he had been that less; that, holding recent date” even under in last months had seen twice five law, required Virginia state had shown that plants growing; concluding marijuana justify that magis- “additional facts would different, mean some “recently” must finding probable trate in cause to believe recent, time than five months more that criminal conduct continued mentioned); Commonwealth v. previously warrant”). date of the Jones, (holding 668 A.2d hand, all of Unlike the cases at stale” magis- affidavit was “not that in the out-of-state cases relied affidavits upon basis which to trate had substantial upon by majority included some other apartment warrant when issue search more temporal reference on-going drug opera- evidenced affidavit “recently” term affidavit to which the were apartment, police told in last tion 24 hours resident ing drugs, and informant apartment confidential “had just” informant had personally been sell- that Huff—11 months”; could be related weeks”).3 Jones — “past These cases therefore (Walston “past ^[2] two — months”; five affidavit, generally in the majority cites with other references to time 2. The also Wayne 3.7(b) (4th "now,” § including ed. were R. the term sufficient to LaFave, and Seizure Search 2004). prob- LaFave himself concedes the the conclusion that the event relied warrant upon word upon attendant reliance lems upon probable a basis for cause "occurred as "recently” and cautious admonition that his making within a reasonable time before the "recently” "might of the word the use (Tex. of the affidavit.” reported when facts so tolerated establish 1967). Sutton, Crim.App. In the term "re clearly continuing course of conduct cently” was used twice. The first reference probable could present cause be found to when the received information was to officers specifically been even if facts had exist these The from the confidential informant. second (Em- being months old.” identified as several describing the information received added). phasis LaFave cites no Texas cases informant, who stated from the confidential specificity regarding required of search marijuana recently.” "ha[d] that he seen the in this discussion. More- affidavits "recently” provid This second use term over, underlying the affidavit events temporal ed for the event some time frame "tip” of one here—which consist issue upon was based. which cause "buy” hardly one be characterized —can us, only cases before we have category clearly fitting into the of "so a con- date reference for the first informant tinuing course of conduct” that relayed Bjerke. The information would even if these facts were exist provide a time reference does as several months old. identified cause was event buy than it e-Gates, based—the controlled pr majority pre- cites to a 3. also —other relay Schmidt, after the of information. Ad occurred pre-Davis pre-Sherlock, case Texas coupled ditionally, Sutton "recent court factually distinguishable. which is In Sutton ly” drugs narcotic with the term "that said appeals the court of criminal held "recently,” making [appellant]” are the use of the term as used now concealed proposition question not stand for the that But the is not do before us wheth- term “recently” along use of the naked er the information in the affidavit was — ongoing drug opera evidence of an with so “protracted stale and and continu- tion, but without other refer temporal ance nature” principle applicable is not ence the affidavit —renders a search question question hand. The before “sufficiently specific” to con meet us is whether the information the affida- (Texas) require statutory stitutional and sufficiently vit is specific as the time of ments. provides the incident that the basis for agree I an that where affidavit recites probable cause—the buy controlled —to activity a indicating protracted facts and provide magistrate with a substantial nature, passage continuous is of time determining probable basis for cause. I significant deter- purposes less for would that it hold is not. and, thus, mining probable cause. staleness Lockett v. See issue, only In the affidavit at direct (Tex.App.-Houston pet. [14th Dist.] temporal reference is “recently,” the word refd). However, disagree le- I that such used in reference to Bjerke’s contact with gal principle statutory alters the and con- the first confidential only informant. The requirement stitutional an affidavit temporal reference to the date of the con- sufficiently provide specific time frame buy forming trolled the basis for that a so has substantial basis “after,” the term placing is the con- from which it can determine that buy trolled at some period time after sought premises item on the time at the Bjerke “recently” met with first confi- Rather, “pro- the warrant is issued. this dential informant. I with disagree the ma- principle tracted and continuous nature” jority’s Bjerke’s assertion that statement simply permits greater period time that he “believes that is cur- [an offense] forming between event the basis rently taking place” supplies temporal probable cause and the issuance of reference which the trial court could warrant before the basis for probable rely.4 cause would be stale. four rendered As discussed footnote of this affidavit, coupled its evaluation. term out "now concealed” he made his even with a immediately occurred after a sworn state "recently” had statement received in setting ment the affiant out a date informant, from a formation confidential did possession that the offense of occurred provide the trial with a court sufficient contrast, By awas statement of fact. in the determining buy basis controlled us, Bjerke’s cases before statement that he closely at a time related occurred "so to the taking currently "believes that [an offense] is warrant,” time of the issuance of the see Pel fact, place” merely is not a statement but tier, 626 S.W.2d at so to "corroborate conclusory upon opinion premis on the cocaine] the existence of [the Gates, cause cannot be based. See 462 U.S. request es” at the time that "the warrant was Sutton, at 2332. 103 S.Ct. Davis, ed.” See combination of the statement of fact that concealed,” "drugs coupled are now with the majority emphasizes 4. The the use of the statement of fact that the informant "has seen phrase "currently.” criticizes reli- LaFave marijuana recently,” provided magis present ance on the use of the tense to estab- trate with a reasonable basis to believe that sufficiently timely, lish the facts are event that relied was timely that the is that sets out "better view” possession marijuana cause—the witnessed probable cause on the should not turn tenses by the informant —occurred within a reason speaks approv- used in the affidavit. He making able time before the of the affidavit. case, rejected the Bjerke’s al of that have use of the conclusory In the “be courts instant timeliness, present occurring lief” that an tense to offense at the establish 748 fact, the first

dissent, relay but the of information from not a statement this is officer, cause can- the does one of belief on confidential informant to Gates, 462 at not be See U.S. necessary based. provide specificity not the (holding that sworn 103 S.Ct. at 2332-33 the “closeness magistrate to determine to sus- officer “has cause statement that buy of time” of the controlled issu- that contraband is pect and does believe” provide or a “time ance of warrant not do” located at a certain location “will the exis- frame which would corroborate” statement”). conclusory and is a “mere tence of cocaine at residence “when Schmidt, Further, may any requested.”5 not exter- was See we consider may Davis, that 421; nal sources of information have 659 S.W.2d at attention, such magistrate’s come to the as Indeed, the four of this 157. corners the presentation circumstances affidavit, it been impossible would have affidavit, the affidavit elapsing ascertain “the time between magistrate, any presented was to the haste was [buy] and time the search warrant may dis- immediacy or have been McKissick, issued.” See 209 S.W.3d officers, comments played by 214. made the officers the time of the implicates Because the error involved as presentation. permit- Just we are not right to be free unreasonable determining these in ted review factors and is constitutional searches seizures affidavit whether the establishes both the and Tex dimension under U.S. cause, Massey see 933 S.W.2d constitutions, must a consti we conduct similarly (Tex.Crim.App.1996), we analysis. tutional-harm See Hernandez permitted would be to use such exter- not (Tex.Crim.App. nal whether the af- determining factors in 2001) (holding analysis or did contain suffi- that harm for erro fidavit itself did ciently specific information in order be of evidence in violation of neous admission adequate law. under un Fourth Amendment is to conducted Appellate Texas der Rule Procedure the four this affi- Reviewing corners of 44.2). must We therefore reverse unless out light davit standards set beyond we determine a reasonable doubt Davis, Peltier, Schmidt and I conclude to the the error did not contribute fails to suffi- recite with Tex.R.App. 44.2(a) P. convictions. See specificity cient the time of the controlled that, (providing when constitutional error buy provided such that the was involved, appellate must con court reverse buy basis to that the reasonable infer punishment unless court deter viction “occurred so close time” to his issuance beyond mines reasonable that error doubt of the warrant to substantiate a belief that punish did not contribute to conviction or the cocaine was at the residence when the ment). Davis, arising Absent evidence from the warrant issued. See 202 S.W.3d at warrant, 155; Peltier, pursuant The term search conducted S.W.2d at 32. “recently,” appellant made reference to time of would not have been convicted. event, "fortunately” growing illegal

states that number of It is the date of the the event cause, forming for the reasoning” basis adopting courts such are "sound significant, which is not the date that an in relying present and not use of the spoke police. formant to the See Schmidt tense. 2 Wayne LaFave, R. and Seizure Search (Tex.Crim.App. 3.7(b) 2004). (4th § ed. 1983). neous, Therefore, I that appellant straightforward conclude answer to this question surprise error. will come clearly experi- harmed this as a to enced law-enforcement magis- officers and I that the Texas of recognize Court trates, who, familiar the well-estab- Appeals petitions for dis- granted Criminal law, recognize lished the need such for in least cretionary review three cases specific time frames to establish probable of question last fall to address the cause for search. important, a More specificity required in search warrant affi- panel majority’s opinion is in conflict with urge davits the time factor.6 I as to our fundamental constitutional and statu- Appeals grant Court of Criminal to tory protections against searches made undoubtedly forthcoming petitions for dis- cause, without and it in stands review in as well. cretionary these cases to prec- stark contrast the well-established Accordingly, join only I portion of of Supreme edent the United States Court opinion appel- the majority disposing of and the Texas Court of Criminal Appeals. lant’s issue. I believe legal-sufficiency As first issue be sus- appellant’s should Revealing the of its reasoning, weakness tained, reversed, judgments panel majority, previous opinion, its trial, cases new remanded a I dissent conceded that it did wish express “not to appellant’s to the affirmance of convic- any approval sense of of the routine omis tions.7 [from sion affidavits made of support specificity warrants] en search

Reconsideration banc denied. of time at which informant [an] learn[s] JENNINGS, Justice, TERRY probable cause conduct search.” See from the of en dissenting denial banc 01-08-00828-CR, Jones v. Nos. 01- consideration. Ó8-01015-CR, (Tex. and 01-08-01016-CR relatively The easy presented App.-Houston 31, 2011), issue [1st Jan. Dist.] the en banc court in this case whether opinion is withdrawn and substituted (Tex. the vague “recently,” use of word Jones S.W.3d at 752 any h.). specific App.-Houston without reference to a time pet. [1st no Dist.] frame, panel in an affidavit made in of a Although majority, upon rehear ing, search warrant is sufficient to establish has withdrawn this concession from its that, to be opinion, evidence current the fact remains is, searched time the affirming judgment, warrant is the trial court’s issued, is, fiat, in the to be place panel expressly ap located searched. majority affirmative, panel majority’s The erro- proving specific the omission specific Appeals tempo- The Texas Court of Criminal recent- the affidavit contains no such ly opinion an in one of issued those cases. ral reference that have would allowed McLain, See State 270- reasonably when infer the infor- (Tex.Crim.App.2011) (noting magis- actually mant made his observations. trate infer defen- could that informant saw methamphetamine particular dant with at a join majority's I7. also do not with the resolu- signing location within 72 hours of second, fourth, third, appellant’s tions of testified, in which warrant affidavit affiant they sixth I believe are issues as unneces- hours, past "In confidential infor- sary appellant dicta. Because is entitled to mant advised the Affiant that [defendant] have his convictions reversed and the cases large possession seen in of meth- amount a new based remanded for trial on his first business”). amphetamine at his residence and issue, however, McLain, any of we need not reach his distinguishable from the here, McLain, present apart legal sufficiency. case because unlike in other from issues about obtaining information search-warrant affidavits. frames After began Road 219 North Pine Affiant majority still admits that “the panel Alco- investigation. narcotics Officer C. dates times failure include being by Dickin- cer recalled contacted described in search- [the of relevant events Henson, M. in refer- in this son Police Officer case is warrant] North ence to information about 219 model demonstration.” Jones Pine Officer Alcocer stated Road. (Tex.App.-Houston [1st S.W.3d at 736 h.) added). Affiant that Henson had informa- Officer pet. (emphasis no Dist.] However, tion from a confidential informant about majority’s that the given panel North selling the crack cocaine at 219 binding precedent on opinion constitutes Court, new, Of- majority’s Pine Officer Alcocer contacted panel this the much Road. meeting ficer and necessarily arranged will be fol Henson lower standard informant, confuse, the hereaf- only with confidential It will serve to and lowed. law- ter to as the “source.” clarify, law. And it will lead referred the After City meeting and courts the members the Texas enforcement officers trial into Department Special Police Unit committing more serious errors that will Crimes eventually to be elected to enlist the assistance of have corrected. investiga- to in the source assist narcotic binding precedent, If allowed to stand location, tion at 219 North suspect opinion will panel majority’s effectively Pine Road.... an requirement eliminate the arranged Affiant to make narcotics in made search warrant con- support location, buy suspect from the 219 North specific time tain a frame to corroborate Road, Pine assistance of place evidence the existence of source.... at the time warrant is issued. searched Upon the sus- the source’s arrival at Thus, meaning it would undermine the pect the source was observed location “probable cause” render article Road, approaching the 219 North Pine 18.01(c)(3) Texas of the Code of Criminal walking porch onto front meaningless. Accordingly, I Procedure into the front door the residence. respectfully dissent from the denial of en The source remained inside the resi- See banc reconsideration this case. Tex. minutes, dence approximately R.App. P. 41.2(c). then exiting seen the residence and leaving the area.... The Affidavit Based provided on the information motion pertinent facts Affiant by the source and other confi- suppress appellant, informants, evidence of Rio Shar- dential and my indepen- own Jones, in eese are found the “Affidavit for investigation, dent Affiant that a believes Warrant,” in City Search which a Texas Texas violation of the Sub- Controlled testified, part, pertinent currently taking place Police Officer in stances Act is Road, City, as follows: 219 North Pine Texas Gal- County, veston Texas.... assigned City While Texas Po- added.) (Emphasis Special recently lice Unit Affiant Crimes observed, readily received information a confidential As can be and as con- majority, reference the officer panel informant in to crack cocaine ceded did and times being any specific sold out of residence located at not reference dates that he regard Pine Road. to the relevant events North IV. The Texas Constitution Importantly, described his affidavit. makes guarantee, provides that the same and also that no did not state the time officer shall issue “without probable were informant had learned narcotics cause, supported by out residence. Nor did oath affirmation.” being sold Const, I, § art. time that infor- Accordingly, the officer state the Tex. buy determining of nar- existence of probable mant had made the controlled location, fact, cause to search an cotics at the residence. each of identified only court looks within “the four corners of the officer’s other references to time relate made the affidavit” of a search back to his initial reference that had Massey warrant. “recently received information.” And reference, (Tex.Crim.App.1996). officer 148 vague from this conclusory stated his that narcotics belief Probable cause to search for contraband Thus, “currently” were at the residence. only or evidence exists when is a “there from the four comers of affida- within the probability fair that evi- contraband or vit, simply possible ascertain it is not to dence of a crime will be in a particu- found were the time that narcotics last Gates, 213, place.” lar Illinois v. 462 U.S. to than observed be at the residence other 238, 2317, 2332, 103 76 527 S.Ct. L.Ed.2d in after point at some indefinite time the (1983) added). (emphasis As recent as “recently officer had received information” 2006, Supreme the Court United States point in time before some indefinite explained that “the re- probable-cause the the magistrate issued search warrant. quirement to will looks whether evidence be found when the conduct- ”

Probable Cause Grubbs, ... ed. U.S. United States 547 error, point 1494, 1499, In first of ar- appellant his 126 S.Ct. 164 L.Ed.2d (2006) gues the trial denying (emphasis original). that court erred in stat- By because, ute, suppress his motion to evidence provides Texas that search warrant reasons, affidavit, among may other above not be issued a sworn unless support made in of the search warrant in “sets forth to establish sufficient facts (1) question, “is silent to infor- as when a specific [the cause: that offense probable buy, (2) linchpin committed, controlled mant’s] been specifical- has that the cause, probable place.” further ly took He property described or items that are argues that evi- “[b]ecause be searched or seized constitute could not ‘read into the material document of dence that offense or evidence that offense, that not appear information does otherwise committed that particular person face,’ fatally its affidavit was defec- or property items consti- provided tive the mag- and could have tuting evidence to be for or searched proba- istrate with substantial basis that particular are located at or on the seized ble issue cause existed to the warrant.” or person, place thing be searched.” 18.01(c) Ann. art. Tex.Code Crim. Proc. guaran- States Constitution United 2010) added). (Vernon Supp. (emphasis right tees be secure from unreason- seizures, Thus, provides support able searches and and it it is axiomatic that to warrant, issue, that “no a search the informa- Warrants shall but issuance of cause, probable supported by support Oath or af- tion an affidavit made firmation, particularly describing “give[] the warrant must a time frame searched, place persons to be ... existence corroborate^] [contra- Const, premises be things to seized.” U.S. amend. on the evidence] [to band (Va.1973). 695-96 request- Va. S.E.2d when the warrant [is] searched] panel majority now Although has ed.” Davis v. added). opinions these to a moved its references to (Tex.Crim.App.2006) (emphasis footnote, each spe- “a the fact remains that omits such Why? An affidavit that cases in estab- in these out-of-state fact necessarily frame cannot affidavits cific time” to a specific a search included some other reference cause to conduct lish necessary the time have had no time frame “magistrate would because could be rea events to establish cause basis infer” reasonable Walston, P.2d sonably “occurred at a inferred. See to in the affidavit referred months”); Jones, (“past a reasonable at 1388 five that would substantiate time months”); (“past Huff, was at 118 object of the search on A.2d two belief that (“weeks”). Thus, S.E.2d at 695 the rea to be searched at premises not support these does soning opinions Id. Neverthe- the warrant issued.” departure less, panel majority’s significant in contradiction of well-established reasoning Supreme Court and law and the sound from United States constitutional Davis, Appeals prece trial below concluded Texas Court Criminal court testimony, officer’s affidavit dent. above, quoted established assertion that there are its war- the issuance of the search justify “temporal several references” the offi- rant in this case. probable supported cer’s affidavit that for the of the search majority, opinion prior in its cause issuance war- panel rant, emphasizes “re- rehearing, panel majority admitted that the term that (1) “recently” stated he had used officer in his affida- the officer that cently,” as And, vit, from a “vague.” although panel received information confidential is (2) informant, that acknowledge meeting,” continues to that the majority “[a]fter investigation,” “recently” “problematic “began term can be in a narcotics cases,” it, below, investigation like the con- some the trial court “culminated buy “temporal forming still refer- trolled the basis concludes cause, mag- occurring described as ences within the affidavit allowed ‘recently’ to determine there was a substan- ‘after’ officer met with [the had] istrate a search first informant.” Al- concluding tial basis for confidential relies wrongdoing.” though panel majority upon evidence of would uncover It, thus, erroneously “temporal support that “the affida- references” holds these holding, only a line is that the provided vit with substan- its bottom “temporal any significant a search reference” with concluding tial basis for wrongdoing” meaning vague uncover evidence of is officer’s use would upon “recently.” the execution the search warrant. term majori original opinion, panel agree panel majority’s

In its I do with the ty, its of the term “re- support holding, previous relied not characterization However, “vague.” Supreme cently” States or use of United Court “recently,” authori the term without reference Appeals Texas Court of Criminal frame, ty, to a not specific but rather the out-of-state cases of whatsoever is Walston, 218, 236 cause in a support State v. Mont. 768 P.2d sufficient 1387, (Mont.1989); “Recent” is de- 1390 v. search-warrant affidavit. Commonwealth (Pa. 418, Jones, 114, “having begun, or been happened, Pa. 118 fined as 542 668 A.2d before; Commonwealth, 1995); long long ago v. 213 done not and Huff 753 time, period is past compar important to a It note that belonging the time relevant to establishing probable is present.” New cause atively close to the Oxford Dictionary the time when an acquired informant (2001). Be American information, pertinent not the time when “recently” term is definition conveyed the informant the information to specific, is not imprecise possi and not it police a officer.1 Flores to, ble, information, without more 416, 419 (Tex.App.-Corpus S.W.2d Christi use, insight specifi from ascertain as to its 1992, ref'd); pet. Schmidt, see also took cally pertinent place. when events (affidavit at 421 S.W.2d failed to state a ago, “Recent” could mean few minutes when affiant received information an days ago, few few ago, hours few other and when the other obtained infor ago, a ago, weeks few months even mation); Sherlock 632 However, years ago. requires few the law (affidavit 608 (Tex.Crim.App.1982) failed to that an affidavit made in of a “any convey definite idea as to when provide, search warrant with sufficient alleged place”). incident took An affidavit specificity, magis facts that would allow when fails to state the affiant received trate determine that contraband or evi informant, pertinent information from an will, dence probability, present fair when the informant obtained the informa Grubbs, requested. when the warrant tion, or when the described conduct took Davis, 1499; U.S. S.Ct. at is, law, place as a matter of insufficient to 155; Crim. Tex.Code Proc. support the issuance of a search warrant. (Vernon 2010). 18.01(a) Supp. Ann. art. (Tex. Serrano v. 123 S.W.3d Here, from the four corners of officer’s ref'd) App.-Austin pet. (citing affidavit, pur the time at which the events Schmidt, 421; 659 S.W.2d at Peltier portedly giving rise cause ac State, 32 (Tex.Crim.App. ascertained; tually occurred cannot be 1981); Heredia, 835)); 468 at S.W.2d see rather, “guess, hope, one is left Davila, 735, also v. 169 State S.W.3d 739 surmise” that the events occurred at a (affidavit 2005, (Tex.App.-Austin no pet.) probable time sufficient to establish cause. insufficient when it tip omitted time that 398, Lowery See 98 S.W.3d 402 there of point was received and was no 2003, (Tex.App.-Amarillo pet.). no oth reference for informant’s claim that nar words, being possessed). er “It cotics were apparent magis that of trate could not ascertain the closeness that, Finally, panel majority asserts time sufficient to issue the warrant based here, “adequately the officer’s affidavit on an of independent judgment probable continuing a criminal suggested operation” 420, cause.” Schmidt v. 659 S.W.2d and “indicated that the information from (quoting 421 (Tex.Crim.App.1983) Heredia the two informants and field test was [his] (Tex.Crim. 833, 468 835 request S.W.2d related in time to closely [his] App.1971)). of the It argues issuance warrant.” Appeals 1. The Texas Court of Criminal has trate could infer that saw defen- informant recently opined magistrate may that a infer dant with contraband within 72 hours of actually signing when an informant saw defendant of search warrant affidavit in which testified, hours, specific past with contraband at a location affiant “In the a con- stating language in an fidential informant advised the Affiant that possession large time the of a [defendant] informant communicated infor- was seen v, McLain, methamphetamine to the State at his residence mation affiant. amount business”). (magis- (Tex.Crim.App.2011) (Tex. 857, 860 419 S.W.2d of his concluso- defendant. statement that the officer’s added). “currently (emphasis Crim.App.1967) was Plac that an offense ry belief with his use officer’s conjunction ing great emphasis on the “state taking place,” trial “recently,” supports the drugs term ment narcotic are [n]ow ‘that said ” sup defendant],’ cause to finding probable court’s court [the concealed The search warrant. issuance of the port “recently” held the use of the word that Appeals considered simi time,” Austin Court with the “other references includ Jordan, in which lar State “[n]ow,” issue ing the reference “suffi officer, affida in his police to warrant the ciently definite current stated, good “I reason to believe vit have that the act or event relied conclusion heretofore, day about the on or 6th a basis for cause oc upon June, did 2008” the defendant commit time before within a reasonable curred intoxicated. 815 driving while offense affidavit, and authorized the making of (Tex.App.-Austin magistrate to issue warrant.” the search court, by the granted). explained As pet. added). (emphasis Critically, Id. at 860-61 police of a officex-’sbelief such a statement clearly in Sutton testified affiant also crime has com that a been and conclusion had the fact that informant “recent magistrate a sub give not mitted does ly” the affiant that the defendant and told determining the existence basis for stantial co-defendant, tense, in the “are present Gates, (citing Id. cause. location living searched] to be [the 2317). Thus, the U.S. at S.Ct. they large have a of marihua quantity the officer’s affidavit court concluded that na location. in their at this possession state, fact, matter of that an as a did not living quarters has been to these informant place on June and it could offense took recently.” and has seen marihuana inferred that an offense reasonably added). Id. (emphasis at 861 6 from mere fact had occurred June contrast, Here, again in stark the officer requested warrant was on that Schmidt, made reference as his affidavit no Id. (citing date. 421). by the Austin of when the informant had learned nar- As noted Court Schmidt, police the affiant in Appeals, being cotics were sold at the residence or officer, “belief,” based in stated his informant when the made controlled another, and, formation received buy thereby, last observed the had cocaine on a certain suspect possessed presence of the residence. narcotics However, S.W.2d at 421. be date. 659 Sutton, in the Unlike the affiant officer to state when the the affidavit failed cause only to “recently” here the term de- used place,” “took the described therein events information,” he had scribe when “received Appeals the of held Texas Court Criminal and of his other time references re- each support probable to inadequate affidavit initial, “vague” late back to this reference. likewise, Here, the offi police cause. Id. present-tense ap- no reference to There is of his an offense cer’s statement belief at the pellant being having residence “currently taking place” not con does at the time possession narcotics in his the fact, merely but is stitute statement by the affidavit was sworn to officer. conclusory support statement did not four of the From within the corners affida- id. probable cause. See here, simply possible vit it presented is contrast, that narcotics were in ascertain In the affiant Sutton v. State fact, to be at the residence other testified, last observed clearly as a statement of in time by” point than at some indefinite after drugs that “narcotic are now concealed “recently informa- Supreme the officer had received States Court Texas time, in point tion” and some indefinite not Court of Appeals Criminal as cited above. before, Indeed, long magistrate issued panel although majority has Thus, search extent that taken great pains warrant. to the arguments bolster its panel majority rely the State upon rehearing, it seems readily apparent support Sutton to their their that it arguments, trying is to fit a square peg into a only reliance problematic is not because round hole. implicitly As in suggested its Gates, Sutton prior was decided current opinion, and even so in more its Davis, prior opinion, panel Grubbs and but their reliance is majority’s reason- very misplaced much ing represents because the reason- significant departure from Sutton, ing contrasting based legal its most basic and prin- fundamental facts, actually argu- ciples their concerning undermines what necessary to es- ments. tablish probable cause for the issuance of a

search warrant. Accordingly, panel Conclusion majority’s in upholding error the search- this is of case such his Motion Reconsideration En importance the jurisprudence of the Banc, argues appellant that en banc review State of that it Texas should be corrected. panel majority’s of the decision is neces- 22.001(a)(6) § See Tex. Code Gov’t Ann. sary panel majority’s opinion because (Vernon 2004). spawned by “sanctions a an affida- vit provide failed A majority justices Court with a substantial basis to that proba- find voted to overrule the motion for existed,” and, so, ble doing it en reconsideration banc. “considerably Fourth weaken[s] Amendment protections against unreason- JENNINGS, HIGLEY, Justices governmental able intrusions into constitu- SHARP from the dissent denial tionally safeguarded areas of our lives.” motion for reconsideration en banc. Indeed, above, panel majority as noted join Justices HIGLEY and SHARP

itself far acknowledge seems to how afield opinion dissenting Justice JENNINGS’S gone, stating it has that “the failure to from the denial of en reconsideration banc. include dates and times relevant events described [the search-warrant]

affidavit in case this is not a model demon- added.) (Emphasis

stration.” This of begs question:

course it sufficiently if established probable cause to L.F.M., R.B.M., In The Interest warrant, i.e., issuance of the search if it P.M.M., A.D.M., M.L.M., passed muster under the United States Children. Constitutions, and Texas the Texas Code Procedure, law, of Criminal and the case No. 14-10-00852-CV. not, why majority should it as the panel Texas, Appeals of Court of prior opinion, admitted its serve as a (14th Dist.). Houston model to be followed? April panel majori- bottom line is that the ty opinion cannot be reconciled precedent

well-established United

Case Details

Case Name: Jones v. State

Court Name: Court of Appeals of Texas

Date Published: May 26, 2011

Citation: 338 S.W.3d 725

Docket Number: 01-08-00828-CR, 01-08-01015-CR, 01-08-01016-CR

Court Abbreviation: Tex. App.