Freeman, Andrew Lee v. State

Opinion

Affirmed and Memorandum Opinion filed August 3, 2004

Affirmed and Memorandum Opinion filed August 3, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00711-CR

ANDREW LEE FREEMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause No. 02-10-11,371

M E M O R A N D U M   O P I N I O N

Following the trial court=s denial of his motion to suppress, appellant Andrew Freeman pleaded guilty to possession of a controlled substance, methamphetamine, weighing four grams or more, but less than 200 grams.  See Tex. Health & Safety Code Ann. '' 481.102(6), .115(d) (Vernon 2003 & Supp. 2004).  The trial court sentenced appellant to thirty years= confinement in the Texas Department of Criminal JusticeCInstitutional Division.^[1]  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2002, after receiving information from a confidential informant and conducting a follow-up investigation, police obtained and executed a warrant to search a residence at an unspecified address, identified by location and description of the premises.  The police found appellant at the residence; they also found methamphetamine, marijuana, and a drug lab located in a shed behind the house.

Appellant was indicted for possession of a controlled substance and subsequently filed a motion to suppress, challenging the search warrant on multiple grounds.  Following a hearing on the motion to suppress, the trial court denied appellant=s motion.

DISCUSSION

In a single point of error, appellant contends the trial court erred in denying his motion to suppress evidence, which was seized pursuant to a search warrant.^[2]  He faults the warrant and the supporting affidavit on a variety of grounds.  Neither the warrant nor the affidavit are part of the appellate record.^[3]

It is appellant=s responsibility to ensure the search warrant and affidavit are included in the record on appeal.  De La Garza v. State, 762 S.W.2d 899, 903 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d); see also Rivera v. State, 730 S.W.2d 824, 825 (Tex. App.CHouston [14th Dist.] 1987, pet. ref=d) (stating same and holding, because appellant failed to have the search warrant and affidavit introduced into evidence, he waived any challenge on appeal to sufficiency of the warrant).  Because appellant failed to include the search warrant or the affidavit in the record on appeal, nothing is preserved for review.  De La Garza, 762 S.W.2d at 903.

CONCLUSION

We overrule appellant=s single point of error.  We affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 3, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

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

---

^[1]  Appellant was sentenced as an habitual offender.  See Tex. Pen. Code Ann. '' 12.33(a), .42(d) (Vernon 2003 & Supp. 2004).

^[2]  Neither the State nor appellant introduced the warrant and affidavit into evidence at the suppression hearing.  If the State intends to justify the search or arrest on the basis of a warrant, it is incumbent on the State to produce the warrant and its supporting affidavit for the inspection of the trial court.  Moreno v. State, 858 S.W.2d 453, 461 (Tex. Crim. App. 1993).  In the present case, the officer who requested the warrant testified, read from the warrant and the supporting affidavit, and was available for cross-examination.  The officer=s testimony satisfied the Moreno production requirement.  See Dorsey v. State, 964 S.W.2d 701, 704 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d); see also De La O v. State, 127 S.W.3d 799, 801 (Tex. App.CSan Antonio 2003, pet. filed) (discussing alternatives to presentation of warrant and citing Dorsey, 964 S.W.2d at 704).

^[3]  The State has attached the search warrant and the return as an appendix to its brief.  An appellate court cannot consider documents attached to briefs that do not appear in the appellate record.   Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d 769, 771 (Tex. App.CHouston [14th Dist.] 1991, writ denied); see also James v. State, 997 S.W.2d 898, 901 n.5 (Tex. App.CBeaumont 1999, no pet.) (stating same and citing Mitchison in context of criminal case).