COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00028-CR
EUNICE CRISTINA RODRIGUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 1447239R
MEMORANDUM OPINION1
Appellant Eunice Cristina Rodriguez appeals from her felony-murder
conviction for which she received a life sentence. In five points, she challenges
the denial of her pretrial motion to suppress, the jury charge, and the sufficiency
of the evidence to support her conviction. Because sufficient corroborating
evidence supported Rodriguez’s conviction, rendering the absence of a charge
1 See Tex. R. App. P. 47.4. instruction on corroborative testimony not egregiously harmful, and because
Rodriguez did not preserve her appellate suppression argument in the trial court,
we affirm the trial court’s judgment.
I. BACKGROUND
A. THE MURDER
Tommy Brown, who worked as a night cleaner for a Fort Worth janitorial-
services company, was in a relationship with Connie Moreno.2 Moreno was a
“very petite,” Hispanic woman whom Brown regularly introduced as his wife
although they apparently were not married. In 2003 or 2004, Brown also became
involved with Rodriguez, who was taller than Moreno, heavier set, and Hispanic.3
Brown referred to Rodriguez as his girlfriend to some, but he told his sister
Andrea Brown that he was only “trying to help [Rodriguez] out.” Brown told
Andrea that Rodriguez was from El Paso.
In early 2013, Rodriguez met Brayden Ellis on a bus trip to her hometown
of El Paso and they became romantically involved. Ellis found out about
Rodriguez’s relationship with Brown in March or April of 2013. Ellis eventually
moved to El Paso to be with Rodriguez but they returned to the Fort Worth area
in July 2013. Rodriguez and Ellis then planned to move to Georgia to live with
2 In the record, her last name is also spelled “Marino.” 3 Brown shared with a co-worker that his personal life was “a mess.”
2 his mother, and Rodriguez told Ellis that she wanted to talk to Brown before they
moved.
On Thursday, September 5, 2013, Ellis dropped off Rodriguez near
Brown’s home. Rodriguez later called Ellis to tell him that Brown had slapped
her and that she was pregnant with Ellis’s child. Ellis became angry, threatening
to drive there and “beat [Brown] up,” and Rodriguez told Ellis that she would
“take [Brown’s] things.”
According to Ellis, he drove his Dodge Intrepid to Brown’s neighborhood
late that night and waited until Rodriguez texted him to come to Brown’s home.
When Rodriguez let Ellis into Brown’s home, Brown was gone. Ellis hid in a back
bedroom for “a real long time.” During this time, Brown returned and he and
Rodriguez left together. When they returned, Ellis grabbed a toilet-tank lid from a
nearby bathroom and hit Brown in the head, breaking the lid and deeply cutting
Ellis’s right hand. Ellis began punching Brown with his fists until Brown fell to the
floor. Rodriguez then handed Ellis a pot and said, “Here, use this.”
Ellis hit Brown in the head three times with the pot and then tied Brown’s
hands behind his back with one of Brown’s shoelaces. Rodriguez told Ellis to put
a bag over Brown’s eyes, which he did. Rodriguez taped Ellis’s injured hand and
“cleaned up what she could clean up” with bleach. Rodriguez wore “see-through
medical gloves” while cleaning up.
Rodriguez told Ellis that she was going to take Brown’s truck and television
but that she needed to get some other “things” as well. Ellis left with the
3 television, believing that Brown was still alive. Ellis put the television in Brown’s
truck and then sat in his Intrepid. After about five minutes, Ellis drove away, and
Rodriguez pulled up behind him in Brown’s truck. At a nearby convenience
store, Ellis and Rodriguez moved the television and “a few bags” to the Intrepid
and drove away together in the Intrepid, leaving the truck with the keys in it. Ellis
discovered that Rodriguez also had taken Brown’s cell phone and wallet. The
pair then drove to Ellis’s hotel, where he threw away his bloody clothes, and then
drove to a hospital to get his hand treated.
B. THE INVESTIGATION
Two days later, Andrea went to Brown’s home to check on him after a
neighbor reported that she had not seen Brown for a few days, which was
unusual. Indeed, Andrea had not seen Brown since September 2 and had
unsuccessfully tried to contact him by text the morning of September 7: “call me
ASAP.” She found Brown lying face down on the floor of the hallway bathroom
with his hands tied behind his back with a black shoelace. It appeared he had
been doused with bleach because his clothes were discolored. There was a
plastic bag over his head secured by duct tape wrapped around his lower face
and neck eleven times. There was a second plastic bag underneath this bag.
Brown had several head injuries caused by blunt-force trauma, injuries to his
neck muscles and hyoid bone, and nine rib fractures. There were bloody shoe
prints in the kitchen “with distinctly different tread patterns,” and the hallway walls
were spattered in blood.
4 Andrea called the police. Officers arrived and noted that Brown’s truck and
television were missing and that a toilet tank was missing its lid. A responding
officer recalled having Brown’s truck towed on the morning of September 6 from
a nearby convenience store where it had been found abandoned with the keys in
it. When officers checked the truck, they found a plastic bag containing pieces of
a toilet-tank lid, a shoe, and a belt. The items tested positive for blood.
Rodriguez, Ellis, and Brown could not be excluded as contributors to the mixed
DNA profile found on the belt.
While the lead detective, Thomas O’Brien, was driving Andrea to the police
station to interview her, she received a text message from Brown’s phone,
apparently in response to her earlier text: “Im driving to El Paso what u want?”
O’Brien instructed Andrea how to respond: “ok call me when u get back. Have a
safe trip.” Andrea gave O’Brien Rodriguez’s name and mentioned that she was
from El Paso. O’Brien determined that Rodriguez had “an extensive criminal
history,” including a 2003 conviction for aggravated robbery.
O’Brien spoke with two of Brown’s neighbors, Billy Henderson and Willie
Wingfield. Wingfield stated that on the night of September 5, he saw Brown
leave and a “female who is taller and heavier set [than Moreno] walk a stranger
into the house.” He was sure that the woman was not Moreno. He described the
stranger as a tall, black man with braided hair. Wingfield did not recognize the
stranger but knew he did not “belong there.” When Brown returned, Wingfield
saw Brown be forcibly “yanked” inside the house. That was the last time
5 Wingfield saw Brown. The next morning, Wingfield noted that Brown was not
smoking on his front porch as was his habit.
Henderson also last saw Brown on the night of September 5. He saw
Brown and his tall, Hispanic girlfriend go into Brown’s home. After Brown left,
Henderson saw a tall, black man with glasses and braids go into the home.
Wingfield was unable to pick Rodriguez’s photo out of a photo array as the
person he saw with Brown that night.4 Similarly, another neighbor of Brown’s,
Keith Moultry, did not choose Rodriguez’s photo when asked to identify the
woman he saw Brown with on September 5. Both Wingfield and Moultry chose
the same “filler” photo.
O’Brien reviewed security video for the business Brown cleaned the night
of September 5 and saw Brown and Rodriguez arrive together at 10:10 p.m. and
leave at 10:56 p.m. Brown was wearing the same shirt in the video that he was
found murdered in. Because Brown’s wallet was not found at the scene, O’Brien
began tracing Brown’s debit card through bank records and security video from
the businesses where the card was used. O’Brien discovered that Rodriguez
and Ellis began using Brown’s debit card in the early morning hours of
September 6 through September 7, moving east from Fort Worth into Mississippi,
until Brown’s money was gone.
4 The photograph O’Brien used of Rodriguez was from 2003.
6 O’Brien searched police reports for Brown’s address and found that Brown
had accused Rodriguez of theft earlier that year, in July 2013. Brown had
reported that he believed Rodriguez had taken his wallet and that when he called
Rodriguez to confront her, Rodriguez threatened to send “her male friend” to
Brown’s house to “kick his ass.” Brown heard a male laughing in the background
during the call.
On September 8, O’Brien swore to these facts in an affidavit, stating that
he had “good reason to believe” that Rodriguez committed the capital murder of
Brown and seeking an arrest warrant. A magistrate signed a warrant authorizing
Rodriguez’s arrest that same day. See Tex. Code Crim. Proc. Ann. art. 15.03
(West 2015).
Three days after Andrea found Brown’s body—September 10—O’Brien
interviewed Deborah Grimes, the bookkeeper at the janitorial-services company
Brown worked for. Grimes had been receiving and sending texts to Brown’s cell-
phone number after his murder. She had texted Brown on September 7 after he
did not show up to a September 6 cleaning assignment: “Call me.” She received
a reply text from Brown’s number, “Im driving to El Paso had a emergency.” She
responded, “Your buildings are covered for the weekend. Call me as soon as
you get back.” Brown’s number replied, “Thank you. So much.” Grimes then
asked where Brown’s vacuum cleaner was but received no immediate response.
Two days later on September 9, the texter using Brown’s number told
Grimes he would “be back no time soon,” explained that he had lost his wallet
7 and was “low in cash,” asked to borrow money, and requested that she send “the
money to my causin [sic] his name is Braylon Ellis.” On September 10, Grimes
texted Brown to tell him that she was worried about him and asked if he still
wanted his paycheck to be sent to Braylon Ellis. Brown’s number responded,
explaining that he could only text and not call from the phone because it had
been dropped and asking that the money be sent to his cousin by money gram.
The police then tracked the location of Brown’s phone to “just outside of
Atlanta, Georgia.” Rodriguez and Ellis were arrested in Georgia on September
10 under two Texas arrest warrants.5 Rodriguez had dyed her brown hair
blonde. O’Brien flew to Georgia and obtained a search warrant for Ellis’s
stepfather’s house, which is where Rodriguez and Ellis had been staying, and for
Ellis’s Intrepid. See id. art. 18.01 (West Supp. 2017). O’Brien’s supporting
affidavit was nearly identical to the affidavit he submitted to support his request
for an arrest warrant. In the bedroom Rodriguez and Ellis had shared in the
home, officers found Brown’s driver’s license in a wallet in a bag, Brown’s cell
phone “hidden . . . kind of at the back of the dresser,”6 and clothes matching the
clothes seen on Rodriguez and Ellis in the security videos as they were using
Brown’s debit card. In Ellis’s Intrepid, officers found Brown’s debit card, an
5 At the time of his arrest, Ellis was wearing glasses and had his hair in braids.
O’Brien was able to find Brown’s phone by calling Brown’s number and 6
hearing it ring from the back of the dresser.
8 envelope with Rodriguez’s name on it, and “additional paperwork” with Brown’s
name. The only fingerprint found on Brown’s phone matched Rodriguez’s prints.
Officers also found Ellis’s discharge instructions from the Dallas hospital Ellis
went to for treatment for a “Dog bite, hand” on September 6 at 4:14 a.m.
C. PRETRIAL AND TRIAL
Rodriguez was indicted with the capital murder of Brown. See Tex. Penal
Code Ann. § 19.03(a)(2) (West Supp. 2017). While she was in jail awaiting trial,
Rodriguez discussed details of her involvement in Brown’s murder with Mecca
Fisher, a fellow inmate:
[Rodriguez] said that her and [Ellis] were going to rob [Brown]. She said that she left the house while he was supposed to do it. And when she got back [Brown] was still alive.[7] She said that [Ellis] was really upset and crying and she said that he was a stupid [expletive]. He was weak and he couldn’t finish it. So she said she [finished it].
Rodriguez also told Fisher that they tied Brown up, beat him, and took his credit
cards and truck before leaving for Georgia. Rodriguez stated that she planned
the entire thing. To Fisher, Rodriguez seemed to be bragging about her
involvement and was confident that no physical evidence—fingerprints,
footprints, or blood—would be found at Brown’s house to connect her to the
offense.
Rodriguez filed a motion to suppress all evidence obtained as a result of
the Texas arrest warrant and the Georgia search warrant, complaining that
7 Rodriguez knew Brown was alive because he was making “[m]oaning, gurgling sounds.”
9 O’Brien omitted material facts in his supporting affidavits. Specifically, Rodriguez
pointed to the fact that O’Brien did not disclose that Wingfield and Moultry failed
to pick Rodriguez’s photo from the photo array. Rodriguez argued to the trial
court that these omissions in O’Brien’s affidavits vitiated any probable cause to
support issuance of the warrants. The trial court denied Rodriguez’s motion:
And the Court is not going to overturn the magistrate[s’] decisions [to issue the warrants]. The Court likewise is going to make a finding that Officer O’Brien did not act in bad faith when he did the affidavit. That even though some things might have been left out, there was still adequate probable cause based upon the discussions that he had with [Andrea] together with the text messages that [s]he had received . . . and also the accusations by Mr. Brown concerning Ms. Rodriguez’[s] threatening him and also stating that she would have a guy come and do bodily harm to him, . . . but based upon that, the Court’s going to deny the motion to suppress.
D. APPEAL
The jury found Rodriguez guilty of the lesser-included offense of murder
and assessed her punishment at confinement for life.8 See id. § 19.02(b) (West
2011). She filed a motion for new trial, arguing that the verdict was contrary to
the law and evidence, which was deemed denied. See Tex. R. App. P. 21.3(h),
21.8(c). Now on appeal, Rodriguez raises five points containing two main
arguments: (1) the evidence was insufficient and the jury charge was egregiously
harmful because neither Fisher, a jail informant, nor Ellis, Rodriguez’s
8 Her punishment was enhanced after the State notified the court that Rodriguez was a repeat offender based on her 2003 aggravated-robbery conviction. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp. 2017); Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997).
10 accomplice, may be corroborated by the other and (2) any evidence obtained as
a result of the arrest and search must be suppressed because O’Brien made
“material and intentional misrepresentations” in his affidavits that attempted to
establish probable cause.
II. CORROBORATION
In her first two points, Rodriguez argues that because Fisher and Ellis
cannot corroborate each other and because the remaining evidence is
insufficient to support her conviction, it must be reversed. This argument turns
on whether the testimony of a jail informant may be corroborated by an
accomplice witness and vice versa. In a related point, she asserts that the jury
charge was egregiously harmful because it failed to instruct the jury that Fisher
and Ellis could not corroborate each other.
A. SUFFICIENCY
The code of criminal procedure prohibits a conviction based solely either
on an accomplice witness’s testimony or on a jail informant’s testimony unless
the testimony is “corroborated by other evidence tending to connect the
defendant with the offense committed.” Tex. Code Crim. Proc. Ann. art.
38.075(a) (West Supp. 2017), art. 38.14 (West 2005). Corroboration of either
accomplice or informant testimony is not sufficient if such corroborating evidence
shows nothing more than the commission of the offense. Id. arts. 38.075(b),
38.14. The court of criminal appeals has held that the testimony of one
accomplice witness cannot corroborate the testimony of another accomplice.
11 Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971). But whether
accomplice and informant testimonies may corroborate each other appears to be
an open question. See Lorence v. State, No. 02-15-00398-CR, 2017 WL
4172077, at *5 (Tex. App.—Fort Worth Sept. 21, 2017, pet. ref’d) (mem. op. on
reh’g, not designated for publication). Judge Barbara Hervey has noted that the
plain language of articles 38.075 and 38.14 seem to allow such cross-
corroboration, although she acknowledged this result seemed counterintuitive:
The corroboration requirement in both statutes refers to “other evidence,” but the statutes do not refer to each other. The “other evidence” requirement makes sense when there is testimony at trial from only an accomplice or a “jail house” informant, but what if there is—as in this case—testimony from an accomplice and a “jail house” informant? Can the accomplice’s testimony corroborate the “jail house” informant’s testimony and vice versa? The language of the statutes indicate that they could, but I am not convinced that is what the legislature intended because such an interpretation would seem to undermine the policy reason for the existence of both statutes. If the statutes exist to ensure that a person is not convicted on only unreliable testimony, why would it be okay to allow that so long as two unreliable witnesses testify instead of only one?
Perhaps the legislature considered this possibility and rejected it, although the legislative history does not indicate that is so. It is also possible, however, that the legislature did not consider such a scenario. Neither the judiciary nor the legislature has the ability to foresee every conceivable consequence of a law, and while it is not for the judiciary to add or subtract from lawful statutes enacted by the legislature, the legislature may want to consider examining the interplay between these two statutes to ensure that they operate as intended when there is accomplice and “jail house” informant testimony in the same case.
12 Mata v. State, 542 S.W.3d 582, 583 (Tex. Crim. App. 2018) (Hervey, J.,
concurring op. to refusal of pet.) (internal citation omitted).9 And the intermediate
appellate courts have reached differing conclusions on the issue. See Lorence,
2017 WL 4172077, at *5 (discussing split of authority).
While we recognize that whether Fisher and Ellis could corroborate each
other is an open question, we need not definitively decide it today. When
evaluating the sufficiency of corroboration evidence we “eliminate the accomplice
testimony from consideration and then examine the remaining portions of the
record to see if there is any evidence that tends to connect the accused with the
commission of the crime.” Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim.
App. 2001). The corroborating evidence need not prove the accused’s guilt
beyond a reasonable doubt nor does it have to directly link the accused to the
commission of the offense. Casanova v. State, 383 S.W.3d 530, 538 (Tex. Crim.
App. 2012); Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008);
Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). All that is
required is that the non-accomplice evidence link the accused in some way to the
crime, allowing a rational fact-finder to conclude that the non-accomplice
evidence sufficiently tended to connect the accused to the offense. Smith v.
State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011); Simmons v. State,
282 S.W.3d 504, 508 (Tex. Crim. App. 2009). Even apparently insignificant
9 Three judges joined Judge Hervey’s concurring opinion in Mata—Judges Bert Richardson, David Newell, and Scott Walker.
13 incriminating circumstances may afford the requisite corroboration as long as the
combined weight of these circumstances tends to connect the accused to the
offense. Cathey, 992 S.W.2d at 462; Trevino v. State, 991 S.W.2d 849, 852
(Tex. Crim. App. 1999); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.
1997). This standard is the same for corroboration of informant testimony.
Lorence, 2017 WL 4172077, at *6.
By eliminating the evidence provided by Fisher and Ellis, we conclude that
the remaining evidence tended to connect Rodriguez to Brown’s murder such
that Fisher’s and Ellis’s testimonies were sufficiently, independently corroborated.
The night of the murder, security video of the business Brown cleaned showed
Brown and Rodriguez arrive and leave together. Brown’s neighbors saw him at
his home that night accompanied by a Hispanic woman who was not Moreno,
and also saw the woman allow a man into Brown’s home after Brown left. When
Brown returned, one neighbor saw that he was forcibly “yanked” into his home.
After Brown’s truck was found, the belt in the truck tested positive for the
presence of blood, and neither Ellis nor Rodriguez could be excluded as a
contributor to the mixed DNA profile. Security video showed Rodriguez and Ellis
using Brown’s debit card beginning shortly after the murder and continuing until
Brown’s account was drained, which occurred when Rodriguez and Ellis were in
Mississippi. While Rodriguez and Ellis were on the move, Andrea received a text
message from Brown’s phone number, saying he was traveling to El Paso with
his “girl.” Andrea informed O’Brien that Rodriguez was from El Paso. Grimes
14 also received text messages from Brown’s phone number in which the sender
asked Grimes to send money to Ellis.
When Rodriguez and Ellis were arrested in Georgia at Ellis’s stepfather’s
house, Rodriguez had dyed her hair blonde and Brown’s wallet, driver’s license,
and phone were found in the bedroom Rodriguez had been staying in with Ellis.
Rodriguez and Ellis were located after law enforcement tracked the location of
Brown’s phone by cell-tower information. Brown’s phone was hidden in the back
of a dresser, and the only fingerprint found on the phone was Rodriguez’s.
Clothes matching the clothes Ellis and Rodriguez were seen wearing while using
Brown’s debit card were found in the bedroom. In Ellis’s Intrepid, the vehicle
seen in surveillance videos when Brown’s credit card was used, officers found
Brown’s debit card, an envelope with Rodriguez’s name on it, and “additional
paperwork” with Brown’s name, including handwritten notations of Brown’s bank-
account information and driver’s license number.
This evidence and the inferences that could be reasonably drawn from it
tended to connect Rodriguez to Brown’s murder and thus were sufficient to
corroborate Fisher’s and Ellis’s testimonies even if they could not corroborate
each other. See, e.g., Castillo v. State, 221 S.W.3d 689, 691–93 (Tex. Crim.
App. 2007); McDuff, 939 S.W.2d at 612–13; Spiers v. State, 543 S.W.3d 890,
892–96 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d); Campos v. State,
473 S.W.3d 907, 915–16 (Tex. App.—Amarillo 2015, no pet.); Hernandez v.
State, 327 S.W.3d 200, 207–08 (Tex. App.—San Antonio 2010, pet. ref’d);
15 Peden v. State, 917 S.W.2d 941, 945–47 (Tex. App.—Fort Worth 1996, pet.
ref’d). We overrule Rodriguez’s first two points.
B. JURY CHARGE
Rodriguez asserts in her fifth point that she was egregiously harmed by the
absence of a jury instruction that explained Fisher’s and Ellis’s testimonies could
not be cross-corroborated. Indeed, because Rodriguez did not object to the jury
charge on this basis, she must show egregious harm arising from the absence of
an instruction under either article 38.075 or article 38.14. See Nava v. State,
415 S.W.3d 289, 298 (Tex. Crim. App. 2013). Even assuming error in the
absence of such an instruction, Rodriguez cannot show such harm because the
jury heard sufficient corroborating evidence apart from the evidence provided by
Fisher and Ellis and because that corroborating evidence was not “so
unconvincing in fact as to render the State’s overall case for conviction clearly
and significantly less persuasive.” Saunders v. State, 817 S.W.2d 688, 692 (Tex.
Crim. App. 1991); see also Phillips v. State, No. 10-12-00164-CR, 2015 WL
7443625, at *1–3 (Tex. App.—Waco Nov. 19, 2015, pet. ref’d) (mem. op., not
designated for publication); Brooks v. State, 357 S.W.3d 777, 781–82 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d). In short, the absence of such
instruction, even if error, was harmless. See Washington v. State, 449 S.W.3d
555, 571–72 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We overrule point
five.
16 III. MOTION TO SUPPRESS
In her third and fourth points, Rodriguez argues that the trial court erred by
denying her motion to suppress her arrest warrant and the search warrant for
Ellis’s stepfather’s home in Georgia because O’Brien made material
misrepresentations of fact in his supporting affidavits. See Tex. Code Crim.
Proc. Ann. art. 15.05 (West 2015), art. 18.01(b). She argues that O’Brien
“misstated” in the affidavits that Wingfield and Henderson identified Rodriguez as
the person who admitted another man into Brown’s home while Brown was gone,
falsely implying that Rodriguez “had walked the murderer into Tommy Brown’s
home.”10 In reviewing the trial court’s ruling on Rodriguez’s motion to suppress,
we are limited by the four corners of O’Brien’s affidavits, giving almost total
deference to the historical facts found by the trial court and reviewing de novo the
trial court’s application of the law. See State v. McLain, 337 S.W.3d 268, 271
(Tex. Crim. App. 2011).
O’Brien testified at the hearing on Rodriguez’s motion to suppress that he
included all facts he believed were important to procure the warrants. Regarding
Wingfield and Henderson, O’Brien identically stated in both affidavits that they
saw a Hispanic woman allow an unknown man into Brown’s house the night of
September 5:
10 As the State points out, the record does not reflect that Henderson was asked to view a photo array in an attempt to identify Rodriguez. Only Wingfield and Moultry viewed a photo array and both chose the same “filler” photo.
17 I spoke with Tommy Brown’s neighbor, Willy Wingfield, who said that on Thursday evening at approximately 2130 hrs–2200 hrs he observed a heavy set Hispanic female, that has hung out with Tommy Brown before, and an unknown male, walk into Tommy Brown’s house when Tommy wasn’t there. Willy Wingfield said it look weird because the lights were off when they went inside. Willy Wingfield said that a few minutes later he saw Tommy pull up in his truck and when Tommy got to the front door, he observed someone pull Tommy inside the house. Willy said that the lights went on for a second and then immediately back off. Willy Wingfield said that he has not seen Tommy Brown since that happened and noticed that the next morning at approximately 0630 hrs, Tommy’s truck was gone. Willy Wingfield said that he has only seen two different Hispanic females at Tommy’s house and he knows that one of them is Conception “Connie” Moreno and the other one is the girl who walked into Tommy’s house with the unknown male, but he doesn’t know her name. Willy stated that he is positive the Hispanic female who appeared to ambush Tommy with an unknown male was not Conception Moreno.
. . . I spoke with Tommy Brown’s other neighbor, Billy Henderson, who said that on Thursday evening he observed a tall black male with braids, walk into Tommy Browns house with Tommy Browns Hispanic girlfriend, while Tommy Brown was gone. Billy Henderson said that he observed Tommy Brown drive up after that and go inside and never saw anyone come back out.
In the trial court, Rodriguez argued that O’Brien made a material omission
in the affidavits because he did not reveal that Wingfield and Moultry picked a
filler photo from the array and not Rodriguez’s photo. She did not argue that
O’Brien made material misrepresentations in the affidavits. To show error in the
trial court’s denial of her motion to suppress, Rodriguez must have raised in the
trial court the same legal theory supporting suppression that she raises on
appeal. See Tex. R. App. P. 33.1(a)(1); Skinner v. State, No. 01-14-00748-CR,
2016 WL 2953954, at *4 (Tex. App.—Houston [1st Dist.] May 19, 2016, no pet.)
18 (mem. op., not designated for publication); Crouse v. State, 441 S.W.3d 508,
516–17 (Tex. App.—Dallas 2014, no pet.); Wright v. State, 401 S.W.3d 813,
821–22 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Rodriguez’s trial
material-omission theory does not comport with her appellate material-
misstatement theory; thus, she has failed to preserve this argument for our
review. See Skinner, 2016 WL 2953954, at *5–6. We overrule points three and
four on this basis.
But even if preserved, Rodriguez’s arguments are without merit. First, at
no point did the affidavits misstate that Wingfield and Henderson positively
identified Rodriguez as the woman they saw. See Franks v. Delaware, 438 U.S.
154, 171–72 (1978) (discussing requirements to attack probable-cause affidavit
supporting warrant, including “deliberate falsity or reckless disregard”). O’Brien
included the facts that Wingfield only saw a large, Hispanic woman who was not
Moreno and that Henderson only saw Brown’s “Hispanic girlfriend.” To render a
warrant void, misstatements in a supporting affidavit must be material and made
knowingly and intentionally or with reckless disregard. See id. at 155–56.
O’Brien’s recounting of what Wingfield and Henderson saw was not an
intentional or reckless misstatement. Rodriguez seems to recognize as much by
arguing that the affidavits created a mere “implication” that Rodriguez was the
woman Henderson and Wingfield saw. To be sure, an implication does not
satisfy Rodriguez’s burden to establish by a preponderance of the evidence that
O’Brien made a material and false statement with the requisite mens rea in his
19 probable-cause affidavits. See Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim.
App. 2003).
Second, the absence of the fact that Wingfield did not pick Rodriguez’s
photo from the array does not vitiate probable cause based on the presence of
other affidavit facts establishing probable cause.11 See Franks, 438 U.S. at 155–
56. O’Brien set out the facts he uncovered in his investigation, which we have
previously recounted and all of which supported probable cause. In other words,
even if O’Brien had included Wingfield’s inability to identify Rodriguez from the
photo array, probable cause was still found in the four corners of O’Brien’s
affidavits. See Massey v. State, 933 S.W.2d 141, 145–47 (Tex. Crim. App.
1996); Rios v. State, 376 S.W.3d 238, 241–44 (Tex. App.—Houston [14th Dist.]
2012, no pet.). For these reasons, the trial court did not err by denying
Rodriguez’s motion to suppress.
IV. CONCLUSION
Even disregarding Fisher’s and Ellis’s trial testimonies, sufficient
corroborating evidence and the reasonable inferences arising therefrom tended
to connect Rodriguez to Brown’s murder. Thus, the evidence was sufficient to
support her conviction and she was not egregiously harmed by the absence of an
instruction under either article 38.075 or article 38.14. Finally, the trial court did
Again, although Rodriguez asserts on appeal that O’Brien’s affidavit 11
misstatement was that Henderson and Wingfield identified Rodriguez from the photo array, Henderson did not view an array.
20 not err by denying Rodriguez’s motion to suppress even were we to assume
Rodriguez raised her appellate suppression argument in the trial court.
Accordingly, we affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: GABRIEL, PITTMAN, and BIRDWELL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: September 6, 2018