Spencer v. State

672 S.W.2d 451, 1984 Tex. Crim. App. LEXIS 652

• Court: Court of Criminal Appeals of Texas
• Decided: May 16, 1984
• Docket: 613-83
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted of burglary of a habitation. Punishment was assessed at life imprisonment under the mandatory authority of V.T.C.A. Penal Code, Sec. 12.-42(d).¹

On direct appeal, the Corpus Christi Court of Appeals held that the trial court erred in failing to suppress evidence obtained in a search conducted pursuant to an invalid search warrant and reversed appellant’s conviction. Spencer v. State, 653 S.W.2d 585 (Tex.App.—Corpus Christi 1983). The Court of Appeals found that the affidavit in support of the search warrant contained false statements made in reckless disregard of the truth and that those false statements must be struck from the affidavit. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Ramsey v. State, 579 S.W.2d 920 (Tex.Cr.App.1979). Without the false statements, the court found the remaining information to be insufficient to establish probable cause to issue a search warrant under the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The State, in its Petition for Discretionary Review, contends that the Court of Appeals incorrectly found the affidavit contained falsehoods. Furthermore, the State argues that in light of the United States Supreme Court’s subsequent holding in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Court of Appeals improperly relied on the Aguilar-Spinelli, supra, rule. We granted the State’s Petition in order to consider these arguments. We reverse the judgment of the Court of Appeals.

The record reflects that the appellant’s apartment was searched and certain items were seized during the search which were admitted into evidence during the appellant’s trial. This search was made pursuant to a search warrant which was based on an affidavit by a Corpus Christi police officer. The supporting affidavit alleged, in pertinent part, that:

“3. It is the belief of affiant, and he hereby charges and accuses, that said suspected party has possession of and is concealing at said suspected place the following described stolen property to wit:

Man’s gold ring, square head, containing several stones appearing to be diamonds.

7 $2.00 bills

Man’s watch, silver or stainless steel, Seiko brand

Smith & Wesson 4" barrel .38 revolver

“4. Affiant has probable cause for said belief by reason of the following facts, to wit:

A subject named Curtis Robison gave affiant a sworn statement in which Ro-bison stated that the above suspected subject showed the above described stolen property to him, Robison, on Monday, September 10, 1979, while Robison and Wayne Spencer were riding home from work. Wayne Spencer told Robison that the items were stolen property that he had just taken from apartments at the Christy Estates. Robison further stated that he observed Wayne Spencer put these items in his pocket and walk into the above suspected place.”²

During the hearing on the motion to suppress, Robison’s sworn statement was introduced into evidence. Robison stated that he and appellant were working as exterminators at an apartment complex when appellant told him that he had stolen things from various apartments while exterminating. Appellant, according to Robison, showed him “some rings and watches” that he had taken from some of the apartments, and gave him “6 or 7 two dollar bills that he had taken ... which he said was half of what he had taken.” Nowhere in the statement does Robison mention a revolver nor specifically describe the jewelry nor state that he saw any other two dollar bills but those that the appellant gave to him.

During the hearing, the affiant was questioned as to his “basis for obtaining that warrant” by both the State and appellant’s attorney. He specifically testified several times that his information was derived from the “sworn statement from Curt [sic] Robison.” He never mentioned any other source of information.³ The State argues in its petition for discretionary review that “As this Court is well-aware, sworn statements made by witnesses do not constitute the complete substance of the conversation [s] [sic] engaged in by the party taking the statement and the witness who gives the statement.” Although this is undoubtedly true, we fail to see how we can ignore the direct and uncontradicted testimony from the affiant that he based his affidavit solely on the sworn statement of Robison.

Robison, in his statement, never mentioned a revolver, nor did he mention seeing any two dollar bills in the appellant’s possession other than those appellant had given to him, nor was there a specific description of the jewelry. Therefore, contrary to the affiant’s direct testimony and his affidavit in support of the search warrant, Robison’s statement could not have provided the information regarding the property.

Accordingly, the affidavit in support of the search warrant falsely asserts that Robison’s statement-provided the critical particularized descriptions. If the affidavit was sworn to with knowledge that the information in the affidavit is false, or with reckless disregard of the truth of that information, those portions of the affidavit which are false are to be excised from the affidavit, and the remaining content is to be examined for sufficiency to support issuance of the warrant. Franks v. Delaware, supra; Ramsey, supra; Hennessy v. State, 660 S.W.2d 87 (Tex.Cr.App.1983). Since both the affidavit and the affiant’s uncontradicted testimony stated that he based his information on Robison’s sworn statement, we are constrained to conclude that appellant has established by a preponderance of the evidence that the statements in the affidavit were made with at least a reckless disregard of the truth of that information. See Juarez v. State, 586 S.W.2d 513 (Tex.Cr.App.1979). The false statements must be excised from the affidavit.

The Court of Appeals in the instant case concluded that the false statement which must be excised is “Curtis Robison gave affiant a sworn statement in which Robison stated that [appellant] showed the above described stolen property to him.” The Court then held that when that false statement is removed “we do not know the source of the description of the stolen property. The remaining information fails to show that the police officer has obtained reliable information from a credible person as required by Aguilar ... and Spinelli _” Spencer, supra at 587.

The State argues, however, that if any of the statements should be excised it should be only those parts of the description which falsely describe the property Robison claimed to have seen. We agree.

Accordingly, the property to be searched for would be a “ring” and a “watch.” We find this description to be adequate under the circumstances of this case to establish probable cause. Trevino v. State, 380 S.W.2d 118 (Tex.Cr.App.1963).

Our analysis makes a detailed discussion of the effect of Illinois v. Gates, supra, on Aguilar and Spinelli, supra, unnecessary. But see Hennessy, supra, and Bellah v. State, 653 S.W.2d 795 (Tex.Cr.App.1983).

The judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Appeals to consider appellant’s remaining grounds of error.

1 . Sec. 12.42(d), as amended by the 68th Legislature, effective September 1, 1981, no longer requires a mandatory life sentence. The instant cause, however, was tried prior to the effective date of the amendment.

2 . All emphasis is supplied throughout by the author of this opinion unless otherwise indicated.

3 . The only possible reference to any information which the affiant had other than the sworn statement from Robison came from the mouth of the prosecutor and not the affiant:

"Q. Specifically, on or about September 14, 1979, did you have an occasion to obtain a search warrant?

“A. Yes.

“Q. What was the basis for obtaining that warrant?

“A. A sworn statement from Curt Robison. “Q. Who is Curt Robison?

“A. He is a co-worker of the Defendant, Wayne Spencer.

[[Image here]]

“Q. And you obtained this warrant or affidavit or search warrant on the basis of what this Curt Robison told you?

"A. Yes, sir.

"Q. Okay. Did Curt Robison give you a statement?

“A. Yes, sir, he did.

[[Image here]]

“A. This is the statement from Curt Robison that I took from him.

"Q. Is that what you based your search warrant on?

"A. Yes, sir.

[[Image here]]

"A. On the basis of the statement I wrote up the Search Warrant and took it before the Judge and signed it and executed it the same day.”

Although the prosecutor, as shown above, asked if the affiant based his warrant on what Robison "told" him, it is obvious from the testimony as a whole that the affiant was referring only to the sworn statement, not to any previous discussion he had had with Robison.