Duncan v. State

151 S.W.3d 564, 2002 WL 32597971

• Court: Court of Appeals of Texas
• Decided: October 7, 2004
• Docket: 2-03-006-CR
• Status: Published

Opinions

OPINION

SUE WALKER, Justice.

I.INTRODUCTION

Appellant David Russell Duncan appeals his conviction for possession of child pornography. In his sole point on appeal, Duncan contends that the trial court erred by denying his motion to suppress because the allegations in the search warrant affidavit were insufficient to support a probable cause finding that child pornography would be found in his residence. We will affirm.

II.PROCEDURAL BACKGROUND

On September 28, 2000, Duncan was charged with the offenses of unlawful interception of electronic communications and four counts of possession of child pornography. On May 17, 2001, Duncan filed a motion to suppress evidence seized pursuant to a search warrant issued on July 10, 2000, and the trial court granted his motion. The State appealed to this court, contending that the trial court erred by granting Duncan’s motion because the allegations in the search warrant were sufficient to support a probable cause finding that child pornography would be found in Duncan’s residence. State v. Duncan, 72 S.W.3d 803, 804 (Tex.App.-Fort Worth 2002, pet. dism’d). On appeal, looking solely to the four corners of the affidavit, deferring to the reasonable inferences that the magistrate could have made from the facts provided in the affidavit and to the magistrate’s common sense and practical interpretation of the affidavit, we held that “a substantial basis existed for the magistrate’s determination that child pornography and related items would probably be found in Duncan’s residence.” Id. at 808. Accordingly, we reversed the trial court’s order granting Duncan’s motion to suppress and remanded the cases for trial. Duncan then filed a petition for discretionary review, and the court of criminal appeals dismissed it as untimely.

The cases were remanded to the trial court, and Duncan once again filed a motion to suppress evidence seized pursuant to the July 10 search warrant. On November 25, 2002, the trial court denied this motion. Thereafter, Duncan pleaded guilty to the offense of possession of child pornography, and the trial court sentenced him to seven years’ imprisonment, probated for seven years, and imposed a $1,000 fine. The trial court granted Duncan permission to appeal its denial of his pretrial motion to suppress. This appeal followed.

III.Law of the Case Doctrine

On appeal, Duncan contends that the trial court erred by denying his motion to suppress because the allegations in the search warrant affidavit were insufficient to support a probable cause finding that child pornography would be found in Duncan’s residence. The State asserts that this court previously resolved this very issue in State v. Duncan, and that therefore, the law of the case doctrine governs the disposition of this appeal. See id. at 804. We agree.

The law of the case doctrine “provides that an appellate court’s resolution of a question of law in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal.” Howlett v. State, 994 S.W.2d 663, 666 (Tex.Crim.App.1999). Law of the case is a court-made doctrine designed to promote judicial consistency and efficiency by eliminating the need for appellate courts to prepare opinions discussing previously resolved matters. Id. “The doctrine assures trial courts that they can rely on the appellate court’s disposition of an issue in presiding over the case and provides an incentive for trial courts to follow these decisions closely.” Id.

However, the doctrine’s application is not inflexible. See Ex parte Granger, 850 S.W.2d 513, 523 (Tex.Crim.App.1993). An appellate court may reconsider its earlier disposition of a point of law if the court determines that there are “exceptional” circumstances that mitigate against relying on its prior decision.- Id. Where the facts and issues are identical in a second appeal, the most common “exceptional” circumstance is that the earlier disposition appears to have' been “clearly erroneous.”' Id.

In the instant case, Duncan’s sole point of error challenges the exact question of law that this court resolved in State v. Duncan: Whether the allegations in the search warrant affidavit sufficiently established probable cause to support the issuance of a warrant to search Duncan’s residence for child pornography. 72 S.W.3d at 804. In the first appeal, we determined that the same affidavit at issue in this appeal established “a probability ... that child pornography would be found at Duncan’s residence.” Id. at 807. Despite Duncan’s arguments, we are unpersuaded in this subsequent appeal that our previous decision was “clearly erroneous.” Therefore, because this court previously decided this issue adversely to Duncan in State v. Duncan, and because Duncan fails to demonstrate that our prior decision was “clearly erroneous,” we hold that the law of the case doctrine applies. Accordingly, we overrule Duncan’s sole point.

IV. Conclusion

Having overruled Duncan’s sole point, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.