LORENZO ALEJANDRO HERRERA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued June 8, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00993-CR
............................
LORENZO ALEJANDRO HERRERA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-40389-KR
.............................................................
OPINION
Before Chief Justice Thomas and Justices O'Neill and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant was indicted for two offenses: sexual assault and possession of child pornography. Tex. Pen. Code Ann. §§ 22.011 (Vernon Supp. 2006), 43.26 (Vernon 2003). Appellant filed a pretrial motion to suppress evidence. Following a hearing, the trial court denied the motion. Thereafter, appellant pleaded guilty to possession of child pornography. The trial court accepted his plea, deferred further findings, and placed appellant on deferred adjudication community supervision for two years. Appellant now appeals the pretrial denial of his motion to suppress only in the pornography case.   See Footnote 2  Appellant did not appeal the sexual assault conviction.
        For reasons that follow, we affirm.
Motion to Suppress
        In appellant's motion to suppress, he sought
 
 
to suppress all seized evidence upon which this prosecution is based, including but not limited to any and all items seized as a result of the arrest of the Defendant and subsequent search of his home and auto, testimony relating to the evidence and the seizure of the evidence because same was seized as the result of an illegal search and seizure, and is thereby tainted and inadmissible as evidence under the Fourth and Fourteenth Amendments to the Constitution of the United States; Article One, Sections Nine and Ten, Constitution of the State of Texas, and Article 38.23, Texas Code of Criminal Procedure.
 
Appeal
        In his first two issues on appeal, appellant contends the trial court erred in denying his motion because the search warrant affidavit failed to establish sufficient probable cause in violation of the federal and State constitutions. In two additional issues, appellant contends the trial court erred in denying his motion because law enforcement officers purposefully failed to provide appellant a list of items to be seized in violation of the federal constitution and article 18.06 of the Texas Code of Criminal Procedure.
        For reasons that follow, we affirm.
Suppression Hearing
        Mark Bradford, an investigator for the Mesquite Police Department, testified that on July 15, 2004, he interviewed Tonya Herrera about a sexual assault complaint against her husband, appellant Lorenzo Alejandro Herrera, that occurred on June 17, 2004. After that interview, at Bradford's request, the complainant signed an affidavit giving details of appellant's sexual assault on her. Bradford viewed a video tape presented to him by the complainant and confirmed appellant had sex with the complainant and video-taped the event. Thereafter, Bradford drew up his own affidavit in support of an evidentiary search warrant and presented it to a district court magistrate on July 20, 2004. Bradford testified “most” of the complainant's allegations were included in his affidavit.
        On that same date Bradford obtained and executed an evidentiary search warrant at appellant's and the complainant's residence. That search warrant was offered and, without objection, admitted into evidence as State's exhibit number one at the suppression hearing.   See Footnote 3  It was described as a “true, accurate and complete copy of the search warrant signed by the Magistrate and the supporting affidavit that [Bradford] presented back on July 20th of 2004.” Included in the search warrant affidavit was the allegation that complainant's “husband had sexual intercourse with her while she was asleep and under medication back on June 17th of 2004, and had in fact video-taped certain portions of that sexual assault[.]”
        On cross-examination, Bradford testified he executed the search warrant and described how he did so. He explained that other officers arrived at the residence before he arrived. Those officers had an arrest warrant for appellant. When appellant answered the officers' knock on the door, he was arrested pursuant to the arrest warrant. When Bradford arrived with the search warrant, the officers began a search of the residence. When asked if he left a “full and complete copy of the search warrant . . . including the affidavit and the items to be seized,” Bradford responded he “did not leave a full copy including the affidavit, no, sir.” Bradford confirmed he left only the first page of the search warrant, nothing else.
        Bradford agreed with defense counsel that the first page did not reflect what items were to be seized. Bradford confirmed the second page of the exhibit described the building to be searched, the apartment number, the items “concealed” at that location, and the officer's belief that appellant had committed sexual assault. Bradford confirmed that the probable cause affidavit says that “Tonya Herrera contacted Mesquite Police to report a sexual assault.” He also confirmed his affidavit in support of the search warrant went on to say “a Panasonic digital camera was logged into evidence” but does not say where the digital camera came from.   See Footnote 4  Bradford did confirm the affidavit states Tonya “recently moved into the address and that she was looking at a video camera and she saw some activity[.]” Bradford confirmed he viewed the video tape before he prepared the search warrant affidavit. Bradford also confirmed that “[d]uring the video [Tonya] does move slightly,” that he could hear no audio on the tape and did not know whether the complainant was “having any kind of verbal response on the video tape or consenting verbally in some form or fashion on the video tape[.]”
        Bradford confirmed the complainant told him, and the affidavit alleged, that she had had consensual sex with appellant earlier that evening before she had taken some medication. He also confirmed the conduct described in the affidavit was “what might be considered typical of a heterosexual relationship,” and was not sadistic or perverted in a way that would suggest a “lack of consent.” Bradford further confirmed the affidavit contained a paragraph about the complainant having “walked in on the suspect masturbating to a pornographic picture of a girl getting penetrated by an older man[;]” however it contained no specifics of just how she saw this, whether it was on the video tape, on a computer or in person. He also confirmed the remaining four paragraphs of the affidavit contain conclusions he had developed from his law enforcement experience, and were not things he was told by the complainant about what she had personally observed. Bradford did not take the complainant's word but verified what she had told him by watching the video tape.
         Bradford testified he had been in law enforcement nine years; he described his training. It was not standard operating procedure of the Mesquite Police Department to leave a full and complete copy of a search warrant at the place to be searched even if there is an individual present. When defense counsel asked Bradford if the Mesquite Police Department had instructed its officers not to leave a complete copy, including the underlying affidavit and list of things to be seized, Bradford responded, “[t]hat's just something we've never done, sir.” Bradford confirmed there was nothing in the search warrant indicating the complainant viewed anything on any computer, other documents or books in the house, other than saying she had walked in on appellant masturbating. Bradford confirmed there was no child pornography on the video tape he viewed. Bradford also testified he did not know the complainant before this event and was not aware of any previous criminal history or mental problems she had. He was not aware the complainant had previously lost her children to Child Protective Services. Bradford confirmed the complainant was not a confidential informant he had used in the past but was “somebody who just came off the street[.]” He did not know whether she was “just angry with her husband,” or had consented to the video.
        On redirect examination, Bradford testified that after appellant answered the door he was arrested and transported from the scene. On cross-examination, Bradford confirmed appellant was present at the scene about fifteen or twenty minutes before he was transported from the scene. He also testified the search warrant was executed the same day it was issued and that he left a copy of the signed search warrant with appellant.
        The State rested on the suppression motion and arguments were presented to the trial court. Defense counsel contended the affidavit did not state probable cause; the State contended it did. After hearing arguments, the trial judge continued the hearing one week until July 11, 2005.
Pleas of Guilty
        When the court reconvened on July 11, 2005, the trial judge admonished appellant about what he was charged with and the range of punishment for each offense.   See Footnote 5  The trial judge stated on the record, “the Motion to Suppress was heard on May the 20th of 2005. And I entered a ruling on June the 14th, 2005 on the Motion to Suppress.” The court clarified the Motion to Suppress applied to each case.
        Appellant pleaded guilty to each offense. After the prosecutor offered into evidence, and the trial court admitted without objection, appellant's voluntary, signed judicial confession and stipulation of evidence in the child pornography case, the State rested.
        Appellant testified. He understood the State had made a plea bargain offer and he accepted the offer; however, he also testified he understood he had permission to appeal the ruling on the pretrial motion to suppress. On cross-examination, appellant explained he had been in the military and had been allowed to return home to take care of his children after his wife lost them to Child Protective Services. Appellant also indicated he planned to file for divorce and wanted no further contact with his wife. Appellant also understood he would not be allowed to have any contact with any minor children, except his son.
Appeal
        The trial court's denial of appellant's pretrial motion to suppress is now before us for review. In his first two related issues, appellant asks whether the trial court erred in denying his motion to suppress because the search warrant affidavit lacked probable cause in violation of the Fourth Amendment of the United States Constitution and article 1, section 9 of the Texas Constitution. See U.S. Const. amend. IV; Tex. Const. art. 1 § 9. The State responds the trial court did not err because based on a totality of the circumstances, a magistrate could have found a substantial basis on which to conclude probable cause existed.         Appellant specifically complains the affidavit in support of the evidentiary search warrant is deficient in the following ways: the place and time of the wife's observation of appellant with a pornographic picture of a girl is unspecified; the terms “pornographic,” “girl,” “picture” or “penetrated” are not defined; and it does not state a reason to believe appellant had such items at his residence, either presently or in the past. In short, appellant complains the information contained in the affidavit was too vague and remote to justify probable cause. Appellant further complains the affidavit does not link appellant to any of the specified characteristics set out in the affidavit based upon Bradford's “training and experience.” Appellant contends the affidavit takes two paths to probable cause: it first seeks seizure of the listed items on the basis of probable cause appellant possessed child pornography and, second, it seeks evidence of the sexual assault allegations.
        Appellant argues the affidavit fails because of its total absence of any specific information that the offense of possession of child pornography occurred, when it occurred, whether this appellant was connected to such an offense, or whether evidence of any such offense was located at appellant's residence. As for the second path, appellant argues the affidavit fails on the basis no facts are presented that lead to the conclusion any of the items listed in the warrant, including any computer, were ever at the location to be searched, or whether the items would possibly contain evidence of any offense. Appellant contends the affidavit fails to set forth facts sufficient for a probable cause finding; therefore, his motion should have been granted and the trial court judgment should be reversed and the case remanded.
Law
        The Fourth Amendment to the United States Constitution and article 1, section 9 of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, houses, papers, and effects. U.S. Const. amend. IV; Tex. Const. art. 1, § 9. The sufficiency of the affidavit is determined by considering the totality of the circumstances set forth within the four corners of the document. Illinois v. Gates, 462 U.S. 213, 234 (1983); Swearingen v. State; 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). An affidavit for a search warrant should be interpreted in a common-sense and realistic manner. Gibbs v. State, 819 S.W.2d 821, 830 (Tex. Crim. App. 1991). A magistrate who reviews an affidavit is entitled to draw inferences from the facts contained in the affidavit. Gibbs, 819 S.W.2d at 830.
Standard of Review
        The general rule is an appellate court reviews de novo probable cause determinations after we defer to the trial court's determination of historical facts. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997); see Ornelas v. United States, 517 U.S. 690, 697 (1996). Review of a magistrate's decision to grant a search warrant, however, is an exception to that general rule. We review a magistrate's decision to grant a search warrant with a deferential standard of review. Swearingen, 143 S.W.3d at 811. Such exception is “based on the Fourth Amendment's strong preference for searches conducted pursuant to a warrant and the need for an incentive to encourage police to use the warrant process.” Swearingen, 143 S.W.3d at 811.
        Therefore, the issue we must decide is whether the magistrate, from the totality of the circumstances, had a substantial basis for concluding probable cause existed; that is, was there a fair probability contraband would be found in the particular place named in the warrant. It is not the role of the reviewing court to substitute its opinion for the magistrate's. We may only determine if the magistrate had a substantial basis for deciding as he did and great deference should be given to the magistrate's decision. Gates, 462 U.S. at 236; Swearingen, 143 S.W.3d at 811.
Application
        Applying the above law to the facts of this case, the record shows the following. Mark Bradford is a certified peace officer employed for eight years with the Mesquite Police Department, and assigned to the Crimes Against Persons Section. On July 12, 2004, the complainant contacted the police to report a sexual assault. The complainant told officer Greer her husband, appellant, had sexually assaulted her while she was asleep and that he had video taped the assault. Greer made out an offense report and a digital camera was also logged into evidence.   See Footnote 6 
        Three days later, on July 15, 2004, Bradford interviewed the complainant at the police department. The complainant told Bradford she and appellant had been married since July 8, 2002, just before appellant was sent to Japan with the Air Force. On July 9, 2004, the complainant looked through a digital camera appellant had shown her previously. She was looking for a taped video of their children. What she saw was a video of appellant having sex with her while she was asleep. The date and time on the first video is shown as June 16, 2004, at 4:05:26 a. m. and the date and time of the second video of a sexual assault is shown as June 17, 2004, at 4:31:14 a. m. Specific details of the conduct on the tape is set out in the affidavit. The affidavit states the complainant appears to be unconscious and unresponsive during the assaults. It also states the complainant had taken prescribed medication before going to bed on June 16. The complainant did not consent to having sex with appellant after taking medication and going to bed and the conduct on the video tape was not consensual. The affidavit also states the complainant “ha[d] walked in on [appellant] masturbating to a pornographic picture of a girl getting penetrated by an older man.”
        Based on the allegations set out above and the conclusions later set out in the affidavit based on Bradford's training and experience, the magistrate could have reasonably concluded there was a fair probability that appellant had contraband in the apartment. Because the magistrate had a substantial basis for concluding, as he did, probable cause existed, we defer to his determination.   See Footnote 7  Deferring to the magistrate's determination, we conclude the magistrate had before him an affidavit setting out sufficient probable cause to search the premises stated in the search warrant. No trial court error is shown.
        In his remaining two related issues dealing with execution of the search warrant, appellant asks whether the trial court erred in denying his motion to suppress where law enforcement officers purposefully failed to provide him a list of items to be seized, in violation of the Fourth Amendment to the United States Constitution and in violation of article 18.06 of the Texas Code of Criminal Procedure.   See Footnote 8 
        Appellant contends Bradford violated his federal constitutional right by giving him only a copy of the search warrant itself and not the affidavit in support thereof, which was specifically incorporated by reference into the search warrant, and also by not giving him a list of the items to be seized. Appellant argues because he had no notice of what items a neutral magistrate had authorized the officer to seize, his rights pursuant to the Fourth Amendment were violated. Appellant argues the warrant was facially invalid because it failed to provide appellant with any description of the type of evidence sought, and the fact the affidavit set out the “things to be seized” does not save the warrant from its facial invalidity. Appellant cites Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984) (holding a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional). Appellant also cites United States v. Carlson, 236 F. Supp. 2d 686 (S.D. Tex. 2002) (holding that omission of the list of items to be seized made execution of the warrant unreasonable since the defendant had no notice).
        The State responds the trial court did not err, and even if a violation occurred, suppression is not a proper remedy in this criminal case. The State correctly points out that Carlson does not hold otherwise. We agree.         
Analysis
        The two objectives of the law concerning search warrants are to insure there is adequate probable cause to search and to prevent a mistake in the execution of the warrant against an innocent third party. Green v. State, 880 S.W.2d 198, 201 (Tex. App.-Texarkana 1994, no pet.) (citing Green v. State 799 S.W.2d 756, 757 (Tex. Crim. App. 1990)). These objectives are not furthered by a rigid application of the rules concerning warrants, thus we review technical discrepancies with a judicious eye for the procedural aspects surrounding issuance and execution of the warrant. Green, 880 S.W.2d at 201 (citing Green, 799 S.W.2d at 757).
Fourth Amendment
        The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. With regard to the particularity requirement of the Fourth Amendment, in United States v. Grubbs, 126 S. Ct. 1494 (2006), the Supreme Court stated, in relevant part:
 
The Fourth Amendment . . . does not set forth some general “particularity requirement.” It specifies only two matters that must be “particularly describ[ed]” in the warrant: “the place to be searched” and “the persons or things to be seized.” We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters.
 
Id. at 1500.
        Quoting from its opinion in Dalia v. United States, 441 U.S. 238 (1979), the Court stated,
 
“Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed. Id., at 255 . . . (quoting Stanford v. Texas, 379 U.S. 476, 481 . . . (1965)), 257[.]”
 
Grubbs, 126 S. Ct. at 1500-01.
        The Grubbs Court then stated: “The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.” Id. at 1501.
        Here, the search warrant incorporated by reference the supporting affidavit. Read together, those documents met the particularity requirement of the Fourth Amendment. Appellant's reliance on the Fourth Amendment for relief regarding the manner in which the warrant was executed is without merit. It is Texas state law that speaks to that issue.
Texas Statutory Law
        Article 18.06(b) of the Texas Code of Criminal Procedure requires that a copy of the search warrant and a copy of a written inventory of the property taken shall be presented to the owner of the place or to the person in charge of the place. As earlier noted, however, appellant did not complain in his motion to suppress about a statutory violation of article 18.06. Thus, he has not preserved error on that issue.
        Even if error should be deemed to be preserved, however, any error would not constitute reversible error. The Court of Criminal Appeals has consistently held that ministerial violations of the search warrant statutes do not vitiate the search warrant in the absence of a showing of prejudice. Robles v. State, 711 S.W.2d 752, 753 (Tex. App.-San Antonio 1986, pet. ref'd) (citing Pecina v. State, 516 S.W.2d 401, 404 (Tex. Crim. App. 1974); Phenix v. State, 488 S.W.2d 759, 766 (Tex. Crim. App. 1972); Daltwas v. State, 375 S.W.2d 732, 734 (Tex. Crim. App. 1964); Rios v. State, 623 S.W.2d 496, 499 (Tex. App.-Corpus Christi 1981, pet. ref'd)).
        Appellant has made no showing of prejudice. We hold the failure to deliver a copy of the affidavit to the appellant, in the absence of a showing of injury, reveals no reversible error. Moreover, the failure of the police to give appellant a copy of the entire warrant would not be grounds for excluding the fruits of the search from being introduced in evidence. See Rushing v. State, 206 S.W.2d 252, 253 (Tex. Crim. App. 1947) (holding that sheriff's failure to advise appellant he had a search warrant or to give him a copy of it would not be grounds for suppression of the fruits from the search).
        For reasons stated above, we resolve each of appellant's issues against him. We affirm.
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
050993F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Inasmuch as the record does not contain a written denial of appellant's motion to suppress heard by the trial court on May 20, 2005, and purportedly ruled upon on June 14, 2005, this opinion is based on an implicit denial of appellant's motion.
Footnote 3 State's exhibit number one consists of seven pages: page one is the search warrant, pages two, three, four and five comprise the affidavit, page six is the return dated July 26, 2004, and page seven is the inventory of evidence seized during execution of the search warrant.
Footnote 4 More specifically, Bradford confirmed the affidavit does not say Tonya brought Bradford the camera.
Footnote 5 The trial court explained the original charge of sexual assault had been reduced to the included charge of assault, a Class A misdemeanor with a range of punishment up to a year in jail and up to a $4,000 fine. Tex. Pen. Code Ann. §§ 22.01(b) (Vernon Supp. 2006), 12.21 (Vernon 2003). He also explained appellant was charged with possession of child pornography with a range of punishment from two to ten years in the penitentiary and a fine up to $10,000. Tex. Pen. Code Ann. §§ 43.26(d), 12.34 (Vernon 2003). Appellant indicated he understood.
Footnote 6 The affidavit sets out the specific offense report number. The magistrate could have reasonably inferred the digital camera was brought to the police department by the complainant when she reported the incident.
Footnote 7 Article 59.01 states, in relevant part: “(2) 'Contraband' means property of any nature, including real, personal, tangible, or intangible, that is: (A) used in the commission of . . . (ii) any felony under Section 15.031(b), 20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30, 31, 32, 33, 33A, or 35, Penal Code[.]”
Footnote 8 Inasmuch as appellant did not raise the issue of a violation of article 18.06 of the Texas Code of Criminal Procedure in his motion to suppress, he has not preserved that issue for appeal. Therefore, we limit our review of his third and fourth issues to a violation of the U.S. Constitution.