Opinion
No. 11-03-00079-CR.
January 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Taylor County.
Panel consists of ARNOT, C.J., and WRIGHT, J., and McCALL, J.
OPINION
Pursuant to a plea bargain agreement, Tammie Jo Sanders pleaded guilty to the offense of possession of less than one gram of cocaine. She also pleaded true to both enhancement allegations. The trial court convicted appellant and assessed her punishment in accordance with the plea bargain agreement at confinement for 20 years. We affirm. In her sole point of error, appellant contends that the trial court erred in denying her pretrial motion to suppress because the affidavit in support of the search warrant omitted relevant information about the credibility of the confidential informant. We note that the State asserts that appellant failed to preserve this issue for review because it was not raised in the trial court. Although the issue was not specifically raised in appellant's written motion to suppress, it was properly raised at the hearing on the motion to suppress. The reporter's record shows that defense counsel addressed the omissions and the lack of reliability when he urged the trial court to grant appellant's motion to suppress. Consequently, we will address the merits of appellant's point of error. At the hearing on the motion to suppress, the search warrant and the affidavit in support of that warrant were introduced into evidence. The affiant, Officer Tommy Pope, also testified. Officer Pope testified that he relied on a confidential informant to obtain the search warrant. Officer Pope testified that the confidential informant had been charged with a felony and was providing information to the police in exchange for "some kind of a deal" with the police or the district attorney's office. Officer Pope did not include this information in his affidavit, but he agreed that that type of information is important in determining credibility. Officer Pope testified that he did not believe it was necessary to include such information in his affidavit. Officer Pope also testified that he had conducted surveillance of the residence and had confirmed the confidential informant's presence at the residence within 48 hours of the application for the search warrant. In his affidavit, Officer Pope stated that his belief regarding the presence of cocaine at the residence was based upon the following facts:
That just prior to making this application for this search warrant your affiant has received information from a confidential informant whose identity must remain a secret for security reasons. Your affiant knows this same confidential informant to be credible, reliable, and trustworthy and this belief is based on the following set out facts:
That this same confidential informant has voluntarily admitted the informant's own prior abuse of drugs to your affiant, however, this informant no longer condones the abuse of drugs.
That your affiant has know[n] this same confidential informant for a period of at least 6 months and that this informant has provided information to your affiant in the past that has always proven true and correct.
That this same confidential informant has provided information to your affiant in the past that has led to the arrest of at least 3 drug offenders.Appellant relies on Franks v. Delaware, 438 U.S. 154 (1978), in support of her point of error. In Franks, the Supreme Court determined that, when a defendant shows by a preponderance of the evidence that an affirmative misrepresentation was knowingly or recklessly included in a probable cause affidavit and was necessary to establish probable cause, the warrant must be voided as invalid under the Fourth Amendment. Franks v. Delaware, supra; Janecka v. State, 937 S.W.2d 456, 462 (Tex.Cr.App. 1996), cert. den'd, 522 U.S. 825 (1997); Massey v. State, 933 S.W.2d 141, 146 (Tex.Cr.App. 1996). Although some federal courts have applied Franks to material omissions in an affidavit, the Texas Court of Criminal Appeals has not yet determined whether to apply Franks to such omissions. Massey v. State, supra at 145-46; Arnold v. State, 47 S.W.3d 757, 759 n. 1 (Tex.App.-Houston [14th Dist.] 2001, pet'n ref'd); see Sherwood v. Mulvihill, 113 F.3d 396 (3rd Cir. 1997); United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). Like the court in Massey, we need not determine whether Franks is applicable to omissions in a probable cause affidavit. In Massey, the defendant contended that the following omissions violated Franks: the omission of information showing that the informants had criminal histories and the omission of information showing that the informants were also possible suspects in the case. Massey v. State, supra at 145. The Massey court determined that appellant failed to establish that the omissions were made intentionally or with a reckless disregard for the accuracy of the affidavit because the affidavit contained other information pointing out that the informants were not outstanding citizens. Massey v. State, supra at 146. In the present case, Officer Pope admittedly omitted information showing that the informant had a pending felony charge and was providing information to the police because of that charge. However, Officer Pope included information in the affidavit showing that the informant was not an outstanding citizen and had a history of drug abuse. We hold that appellant failed to show that the omissions were made in an attempt to mislead the magistrate. Moreover, even if Franks were applied to the omissions in this case, the result would be the same. If the omissions had been included in the affidavit, the affidavit would still establish probable cause for appellant's arrest. See United States v. Martin, supra at 328. Appellant's point of error is overruled. The judgment of the trial court is affirmed.