Lee, Raymond Oswald v. The State of Texas--Appeal from 176th District Court of Harris County

Affirmed and Memorandum Opinion filed September 29, 2005

Affirmedand Memorandum Opinion filed September 29, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00398-CR

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RAYMOND OSWALD LEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 949,732

M E M O R A N D U M O P I N I O N

Appellant, Raymond Oswald Lee, was convicted by a jury of the felony offense of possession of a controlled substance, namely cocaine, with intent to deliver. See Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003). Considering two enhancements for prior felony convictions, the trial court subsequently sentenced appellant to thirty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division. In his sole point of error, appellant complains the trial court erred in denying his motion to suppress the evidence because the warrant used by the police to seize the contraband at issue listed an incorrect apartment number and, therefore, was allegedly invalid. We affirm.

On May 21, 2003, Officer Kenneth Wiltz of the Houston Police Department, acting on a tip from a reliable confidential informant, arranged for the informant to make a controlled purchase of narcotics at a residence in Houston. Specifically, the informant placed a telephone call to a man known as ATriple C,@ later identified as appellant, and requested twenty dollars of cocaine. Appellant instructed the informant to drive to appellant=s apartment, and he would make the transaction there. Subsequently, Wiltz searched the informant=s vehicle to ensure it contained no narcotics and gave the informant twenty dollars of city-issued investigative funds. The informant drove to appellant=s residence, followed by Wiltz in an unmarked vehicle. Wiltz parked on the street and observed appellant exit the residence, approach the informant=s vehicle, exchange one rock of crack cocaine for a twenty-dollar bill, and walk back inside the residence.[1]

Based on this information, Wiltz obtained a search and arrest warrant. The warrant described the premises to be searched as follows:

4402 Kay Circle #1, Houston, Harris County, Texas. Said residence and surrounding curtilage is more particularly described as a single story apartment complex, white in color with green trim. This residence is on the south side of Kay Circle. This apartment is on the West Side [sic] and faces west. The door is white in color with glass pains [sic] in the upper center portion of the door. The residence is in control of a black male known as triple c [sic].

The following day, May 22, Wiltz and several other narcotics officers staged another drug purchase to ensure appellant would be at the residence. When they arrived they found appellant sitting in his vehicle and immediately apprehended him with 3.1 grams of cocaine in his pocket. Wiltz and two other officers then entered the residence through the door that appellant had been previously observed enteringCthe door with no numerical marking. Once inside the apartment, the officers discovered 7.2 grams of cocaine on a nightstand in the bedroom and 22.1 grams of marijuana in a dresser drawer. They also found a Lorsin pistol and four hundred dollars cash in a nearby safe.

Subsequently, appellant was arrested and charged with possession with intent to deliver cocaine, weighing more than four grams and less than two hundred grams. Prior to trial, appellant=s counsel filed a motion to suppress the evidence obtained during the search of the residence. The trial court conducted a hearing on the issue, but overruled appellant=s motion.

In his sole point of error, appellant argues the trial court erred in overruling his motion to suppress. Specifically, he contends the warrant was ineffective because it listed an incorrect address. Accordingly, he concludes the court should have suppressed the evidence recovered from inside his apartment.[2] We disagree.

In reviewing a ruling on a motion to suppress evidence, an appellate court views the evidence in the light most favorable to the trial court=s ruling. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Thus, on appeal, an appellate court must decide whether the record supports the ruling made by the trial court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). An appellate court must sustain the trial court=s ruling if it is reasonably supported by the record and will only reverse if the court=s decision was a clear abuse of discretion. Id.

Generally, both the United States Constitution and the Texas Constitution prohibit searches without a warrant describing the particular place to be searched. U.S. Const. amend. IV; Tex. Const. art. I, ' 9. The Texas Court of Criminal Appeals recently noted, in Long v. State, the constitutional objectives of requiring a particular description of the place to be searched. 132 S.W.3d 443, 447 (Tex. Crim. App. 2004). The court explained the requirement is meant to: (1) ensure officers search the correct place; (2) confirm that probable cause exists to search the particular place; (3) limit officer=s discretion and narrow the search; (4) minimize mistaken searches of innocent individuals; and (5) inform the owner of officers= authority to search that specific location. Id.

Article 18.04(2) of the Code of Criminal Procedure further codifies this objective and provides that a search warrant must identify, as near as possible, the place to be searched. Tex. Code Crim. Proc. Ann. art. 18.04(2) (Vernon 2005). However, A[m]inor discrepancies will not vitiate a warrant if it sufficiently describes the premises.@ Smith v. State, 962 S.W.2d 178, 185 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d); see also Olivas v. State, 631 S.W.2d 553, 555 (Tex. App.CEl Paso 1982, no pet.) (ATechnical discrepancies in the descriptive portions of a search warrant will not automatically vitiate the warrant=s validity.@). Ultimately, the test for determining the sufficiency of a search warrant=s description of the place to be searched is whether the description sufficiently apprises police of where they are to conduct the search. Haynes v. State, 475 S.W.2d 739, 740 (Tex. Crim. App. 1972); Smith, 962 S.W.2d at 185.

Where the warrant describes a multi-unit dwelling, the description must contain sufficient guidelines for the executing officer to locate and distinguish the property from other places in the community. Id. An incorrect address alone will not automatically invalidate a search warrant. Smith, 962 S.W.2d at 185; Williams v. State, 928 S.W.2d 752, 754 (Tex. App.CHouston [14th Dist.] 1996), aff=d on other grounds, 965 S.W.2d 506 (Tex. Crim. App. 1998). AAn officer=s affidavit in support of a search warrant will override the incorrect numerical address where the affidavit is so descriptively detailed as to give a reasonably prudent law enforcement officer affirmative confidence in continuing its execution.@ Williams, 928 S.W.2d at 754.

Appellant contends the search warrant in this case was invalid because it authorized a search of 4402 Kay Circle #1, whereas the residence that was actually searched was 4402 Kay Circle #3. However, when the description of the residence is reviewed in its entirety, we do not believe this technical defect would have significantly impaired an officer from locating and distinguishing the residence from other places in the apartment complex. First, Wiltz personally observed the drug transaction and watched appellant enter the particular unit that was ultimately searched. Significantly, he personally executed the warrant and, therefore, knew exactly which location was meant to be searched. This rectified any technical discrepancy in the warrant=s incorrect address-listing.[3]

More importantly, the incorrect street address does not invalidate the search warrant in this instance because Wiltz provided a sufficient description of the residence to apprise officers of its location. See Smith, 962 S.W.2d at 185; Williams, 928 S.W.2d at 755. The warrant undisputedly lists an incorrect addressCunit #1 instead of #3. However, it also describes appellant=s precise residence in ample detail. Specifically, it explains the dwelling is a single story apartment complex, white in color with green trim. It also provides the exact directional location of appellant=s apartmentCon the south side of Kay Circle on the west side of the building facing west. Finally, it provides that the unit has a white door with glass panes in the upper center portion. Wiltz testified at the suppression hearing that the residence was distinguishable because no other doors at 4402 Kay Circle have glass panes. He further explained the reason he listed the address as A4402 Kay Circle #1@ is because the residence has no marking other than the street address and the number A1.@ Thus, he was providing as much detail about the residence as was readily discernable.[4]

When viewed in its entirety, the description adequately identifies, as near as possible, the location of the residence and was sufficient to overcome the incorrect numerical address. See Tex. Code Crim. Proc. Ann. art. 18.04(2); Williams, 928 S.W.2d at 754. Combined with the executing officer=s personal knowledge, the warrant satisfied the constitutional and statutory objectives of requiring a particular description of the place to be searched. Accordingly, the trial court did not err in denying appellant=s motion to suppress. We overrule appellant=s sole point of error.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed September 29, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

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

[1] The record indicates appellant exited the building through one doorCframed by a number A1@Cand re-entered the building through another door with no number or marking.

[2] The State contends appellant waived his complaint because his written motion to suppress relied upon different grounds. In fact, appellant argued in his motion to suppress that his arrest was contrary to chapter 14 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 14.01B.06 (Vernon 2005) (governing warrantless arrests). Therefore, he concluded the evidence used to secure his conviction was inadmissible pursuant article 38.23 of the Code. See id. art. 38.23 (Vernon 2005) (prohibiting use at trial of evidence obtained during an illegal or unauthorized search). We agree that appellant=s written motion is not entirely congruent with his complaint on appeal. However, in the suppression hearing, appellant sufficiently clarified the basis of his argument, i.e., the incorrect address listed on the warrant. Accordingly, we will address appellant=s point of error.

[3] Appellant argues the executing officer=s personal knowledge is irrelevant and is insufficient to overcome the fact that the warrant authorized search of a different address. However, courts are entitled to take the executing officer=s personal knowledge into consideration when determining whether a technical defect invalidates a warrant. See Bridges v. State, 574 S.W.2d 560, 562 (Tex. Crim. App. 1978) (upholding the validity of a search where the officers who executed the warrant knew from their prior investigations which house to search); Smith, 962 S.W.2d at 185 (holding trial judge was entitled to consider the knowledge of the officer executing the warrant where informant identified the house and the officer observed the informant enter and leave); Taylor v. State, 974 S.W.2d 851, 855B56 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (affirming the denial of a motion to suppress where the executing officer=s personal knowledge of the correct residence remedied the warrant=s incorrect address-listing). In this case, by personally executing the warrant and conducting the search, Wiltz vitiated any concern that officers were intruding upon the wrong location. See Bridges, 574 S.W.2d at 562; Smith, 962 S.W.2d at 185; Taylor,974 S.W.2d at 855B56.

[4] Photographs of the apartment building were introduced at the suppression hearing in support of Wiltz=s testimony.