Freddie James Smith v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Majority and Concurring Memorandum Opinions filed September 13, 2005

Affirmed and Majority and Concurring Memorandum Opinions filed September 13, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00328-CR

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FREDDIE JAMES SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 953,389

M A J O R I T Y M E M O R A N D U M O P I N I O N

In two points of error, appellant Freddie Smith challenges a conviction for possession of a firearm by a felon[1] on the basis that the trial court erred in denying his motion to suppress evidence obtained with a search warrant (the Awarrant@) because the warrant: (1) was based on an unsigned affidavit; and (2) the facts set forth in the affidavit were stale and otherwise failed to establish probable cause. We affirm.

SWORN AFFIDAVIT REQUIREMENT

A sworn affidavit setting forth substantial facts establishing probable cause must be filed in every instance in which a search warrant is requested. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon 2005). Evidence obtained in violation of this article may not be admitted into evidence in a criminal trial unless the law enforcement officer was acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause. See id. arts. 38.23(a),(b).

In appellant=s first point of error, he argues that the trial court abused its discretion in denying the motion to suppress evidence because the search warrant was, inter alia, unsigned. It is undisputed by any party that the affidavit was not signed prior to the search and subsequent arrest of appellant. Appellant argues that this court should follow the reasoning of the Waco Court of Appeals in determining that the Aplain meaning@ of the phrase Asworn affidavit@ should be used. Hunter v. State, 92 S.W.3d 596, 601 (Tex. App.CWaco 2002, pet. ref=d).

In Hunter, the Waco court applied a civil statute, section 312.011(1) of the Government Code, to help define the plain meaning of the term Asworn affidavit.@ Tex. Gov=t Code Ann. ' 312.011(1); Hunter, 92 S.W.3d at 602. The court concluded that the term Arequires a writing signed by the affiant, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.@ Id. The court then determined that an unsigned affidavit was not issued in accordance with the Asworn-affidavit@ requirement of article 18.01(b) of the Code of Criminal Procedure and therefore could not be used legally in a search without the help of the Agood-faith@ exception of article 38.23(b). Tex. Code Crim. Proc. Ann. arts. 18.01(b), 38.23(b); Hunter, 92 S.W.3d at 602.

Recently, this court has concluded otherwise, determining that the affidavit need not have an actual signature to be considered properly sworn. See Sanchez Selph v. State, Nos.14-03-01112-CR, 14-03-01113-CR, 2005 WL 851184, at *3 (Tex. App.CHouston [14th Dist.] April 14, 2005, no pet. h.) (mem. op.). In Sanchez Selph, the magistrate did not sign the affidavit, but did sign the attached search warrant. In the affidavit, the officer stated that he orally swore to the presiding judge that the facts in the affidavit were true. Id. at *4. We noted that A[w]hen a magistrate states in a warrant that the affiant has sworn to a statement in his affidavit, the affidavit may be incorporated by reference into the warrant when the two instruments are stapled together.@ Id. at 3. Given the officer=s oral oath and the fact that the warrant recited that the affidavit was attached, we read the affidavit and the search warrant as one document and determined that the affidavit was properly sworn. Id. Other courts have determined that it is not the signature, but the oath itself, that solemnizes the affidavit. See Vance v. State, 759 S.W.2d 498, 500 (Tex. App.CSan Antonio 1998, pet. ref=d). AIf the affiant is sufficiently identified in the body of the affidavit or in the jurat, his signature is not necessary to the validity of the affidavit.@ Id.

Here, as in Sanchez Selph, the warrant states that it was attached to the affidavit and that Officer Griffin swore to Judge Harmon that all facts stated in the affidavit were true and correct. Sanchez Selph, 2005 WL 851184, at *4. Although the failure to sign the affidavit was by the officer in this case, as opposed to the magistrate in Sanchez Selph, we believe that the cases are otherwise comparable. Id. Officer Griffin was sufficiently identified in his affidavit as well as in the warrant issued by Judge Harmon. Furthermore, during the suppression hearing, both Judge Harmon and Officer Griffin testified that Officer Griffin swore to the information in the affidavit in the presence of Judge Harmon. Finally, the documents were stapled together, exactly as they were in Sanchez Selph. Id. Therefore, we find that the affidavit was properly sworn and was sufficient for the issuance of the search warrant, and thus overrule the first point of error.

PROBABLE CAUSE

In his second point of error, appellant alleges that the facts set forth in Officer Griffin=s affidavit were stale and failed to establish probable cause. We disagree. To be valid, a search warrant must be supported by a sworn affidavit Asetting forth substantial facts establishing probable cause.@ Tex. Code Crim. Proc. Ann. art. 18.01(b). To establish probable cause, an affidavit must provide a substantial basis for concluding that a search would uncover evidence of wrongdoing. Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004) (citing Illinois v. Gates, 462 U.S. 213, 234-37 (1983)). Where such a basis exists, a reviewing court must show deference to the magistrate=s finding of probable cause. Id. Furthermore, a magistrate may draw reasonable inferences in determining whether probable cause exists. Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004).

We find that there was a substantial basis to conclude that searching appellant=s residence would uncover evidence of credit card abuse, and accordingly, we find that Judge Harmon=s determination of probable cause was proper in light of the following facts:

(1) In December 2002, Citibank notified Lisa Stark that someone had opened a credit card in her name. Because Stark had never opened a Citibank account, she notified the police.

(2) Also in December 2002, mail addressed to Stark began arriving at 62102 Rand Street (the ARand Street address@), even though Stark did not live there and had never authorized the address change. Furthermore, Officer Griffin learned that the postal service had received forms changing two other addresses to the Rand Street address.

(3) About a month before Judge Harmon issued the search warrant on June 26, 2003, American Express contacted Stark, claiming that she owed roughly $10,000 on an overdue bill; however, Stark had never opened an account with American Express and knew nothing about the charges.

(4) Just one week before Judge Harmon issued the search warrant, a postal carrier alerted Officer Griffin that an envelope from Citibank addressed to Stark was ready for delivery to the Rand Street address.

(5) Officer Griffin knew that information such as people=s names, social security numbers, bank accounts, and credit cards are often used to perpetuate fraud.

Appellant argues that the above facts are stale and that none of the information in the affidavit implicates him personally. We find these arguments unpersuasive. First, the facts in Officer Griffin=s affidavit were not stale. The amount of time that elapses between the occurrence of events described in the affidavit and the issuance of the search warrant is a key factor in determining staleness; however, this passage of time does not indicate staleness when the events are Aprotracted and continuous,@ demonstrating a course of conduct. Lockett v. State, 879 S.W.2d 184, 189 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d) (citing Bernard v. State, 807 S.W.2d 359, 365 (Tex. App.CHouston [14th Dist.] 1991, no pet.)). In Lockett, we held that facts were not stale where the affidavit showed that the defendant had continuously possessed illegal firearms and that those firearms could be found at the defendant=s residence; informants had seen guns there three and four months before the search, and a parole officer had seen a gun cabinet two months before the search. Id. Similarly, in State v. Stone, the facts in the affidavit were not stale when the defendant conversed with an undercover officer over the Internet for a month, establishing a continuous course of communication, and only one week passed between their last communication and the issuance of the search warrant. State v. Stone, 137 S.W.3d 167, 178 (Tex. App.CHouston [1st Dist.] 2004, no pet.).

Here, mail addressed to Lisa Stark arrived at the Rand Street address from December 2002 until June 2003, even though Stark had never authorized the address change. Furthermore, one week before Judge Harmon issued the search warrant, a postal carrier told Officer Griffin that a Citibank envelope addressed to Stark was ready for delivery to the Rand Street address. Therefore, we find that the facts in Officer Griffin=s affidavit indicate continuous acts of credit card abuse, and that the passage of just one week between the most recent event and the issuance of the warrant does not render the facts stale.

Secondly, appellant=s argument that the facts in the affidavit do not implicate him personally is misguided. In a probable cause inquiry, the relevant question is whether the facts in the affidavit are sufficient to justify a conclusion that the object of the search is likely to be found on the premises at the time the warrant issues. Uresti v. State, 98 S.W.3d 321, 336 (Tex. App.CHouston [1st Dist.] 2003, no pet.) (citing Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996)). Nothing here suggests that the search warrant was required to establish probable cause regarding appellant, as opposed to probable cause regarding evidence to be found at the Rand Street address. Therefore, because we find that the facts in the affidavit were not stale and that they provided a substantial basis to conclude that a search would uncover evidence of credit card abuse at the Rand Street address, we overrule appellant=s second point of error and affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Majority and Concurring Memorandum Opinions filed September 13, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. (Edelman, J., concurring).

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant pled guilty, and the trial court assessed a punishment of ten years= confinement in the Institutional Division of the Texas Department of Criminal Justice.