State v. Acosta

99 S.W.3d 301, 2003 Tex. App. LEXIS 1277, 2003 WL 253631

Opinions

OPINION

Opinion by

Justice CASTILLO.

The State appeals from the trial court’s grant of Johnny Joe Acosta’s “Motion to Determine the Admissibility of Illegally Seized Evidence.” Pursuant to that motion, the trial court determined that evidence obtained pursuant to a search warrant was inadmissable. The State appeals this ruling.² We reverse and remand.

FACTS

Acosta was charged by indictment with the first degree felony offense of possession with intent to deliver cocaine.³ On November 2, 2000, officers executed a search warrant which authorized the search of a specified residence for cocaine. The search warrant was issued by a justice of the peace in San Patricio County. At this time, officers retrieved approximately forty grams of cocaine. The affidavit for the search warrant and the warrant itself were both titled “Article 18.02(10), Texas Code of Criminal Procedure.”⁴

Acosta sought to suppress the cocaine evidence obtained in that search, filing his “Motion to Determine the Admissibility of Illegally Seized Evidence” on October 17, 2001. Following a hearing, the trial judge granted the motion on the basis that the justice of the peace, who does not hold a law license, lacked the authority to issue an article 18.02(10) evidentiary warrant.

STANDARD OF REVIEW

We review the trial court’s grant of a motion to suppress under the standards set forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Under Guzman, the relevant standard of review depends on the type of question presented. Id. We must afford almost total deference to the trial court’s determination of the historical facts that are supported by the record, especially where the determination is based on an evaluation of credibility and demeanor. Id. We also afford almost total deference to the trial court’s application of the law to the facts, where the application turns on an evaluation of credibility and demeanor. Id. Where the application of the law to the facts does not revolve around an evaluation of credibility and demeanor, we review the issue de novo. Id. However, in such a case we still afford deference to the trial court’s determination of the subsidiary fact questions. Id.

ANALYSIS

In a single issue presented, the State argues that the trial court erred by invalidating the search warrant based on its title alone, without looking to the substance of the warrant. The warrant was characterized and titled as an 18.02(10) warrant. Tex.Code CRIM. Peoc. Ann. art. 18.02(Vernon Supp.2002). Because this issue revolves around an application of the law to the facts that is not dependent on an evaluation of credibility and demeanor, we review the issue de novo. Guzman, 955 S.W.2d at 89.

Code of criminal procedure article 18.01 provides the general authority for, and governance of, the issuance of search warrants. Tex.Code Crim. Proc. Ann. art. 18.01(Vernon Supp.2003). Subsection (c) of that article states in relevant part that “only a judge of a municipal court of record or county court who is an attorney licensed by the state of Texas, statutory county court, district court, the Court of Criminal Appeals, or the Supreme Court may issue warrants pursuant to Subdivision (10), Article 18.02 of this code.” Tex. Code Crim. PROC. Ann. art. 18.01(c) (Vernon Supp.2003). A justice of the peace fails to meet the requirements of article 18.01(c), and may not issue warrants pursuant to article 18.02(10). Chavez v. State, 769 5.W.2d 284, 286 (Tex.Civ.App.-Houston [1st Dist.] 1989, pet. ref'd). However, article 18.01(a) permits any magistrate, including justices of the peace who lack a license to practice law, to issue all other types of search warrants included in article 18.02.⁵ Tex.Code CRIM. PROC. Ann. art. 18.01(a) (Vernon Supp.2003); Chavez, 769 S.W.2d at 286.

In this case, the substance of the warrant authorized only a search for cocaine. A justice of the peace without a law license may issue such a warrant under article 18.02(7).⁶ Tex.Code Crim. Proc. Ann. art. 18.02(7) (Vernon Supp.2003); Chavez, 769 S.W.2d at 286. Our analysis thus turns on whether the trial court judge was correct in suppressing the evidence obtained pursuant to the search warrant based on its expressed title as an 18.02(10) warrant or whether the trial court instead should have denied the motion to suppress based on the fact that the substance of the warrant was permissible under article 18.02(7).

We addressed a similar issue in Mason v. State, 838 S.W.2d 657, 660 (Tex.App.Corpus Christi 1992, pet. ref'd). In that case, a magistrate who was not a licensed attorney issued a warrant authorizing the search and seizure of drug evidence. Id. The appellant claimed that the warrant was an evidentiary warrant under article 18.02(10), and therefore the magistrate was prohibited by article 18.01(c) from issuing the warrant. Id. We found in that case that the warrant was properly issued because the warrant authorized the search and seizure of drugs and was therefore within the class of 18.02 warrants issuable by a judge who did not possess a law license. Id.

Several other Texas courts of appeals have addressed whether a warrant was properly executed by a justice of the peace under article 18.01. In Martin v. State, the Fort Worth court examined the language of the search warrant before it on appeal and found that it specifically authorized the seizure of only drugs and equipment used in the manufacture of drugs; therefore, the requirements of 18.01(c) did not apply and it was proper for the justice of the peace to issue the warrant pursuant to article 18.02(2), (7), and (9). Martin v. State, 727 S.W.2d 820, 821 (Tex.App.-Fort Worth 1987, no pet.). In Scott v. State, the Waco court held that, because every item Usted in the search warrant fell within the category of items which are illegal to possess, or instruments used in the commission of a crime, the warrant was permissible under article 18.02(8) and (9), was not an evidentiary search warrant, and therefore was properly issued by a justice of the peace. Scott v. State, 868 S.W.2d 430, 433 (Tex.App.-Waco 1994, pet. ref'd). In Chavez v. State, the First District Houston court held that, because the search warrant in that case authorized only the seizure of methamphetamines, it was permissibly issued by a justice of the peace. Chavez, 769 S.W.2d at 286. In Lovely v. State, the Beaumont court held that the prohibitions of article 18.01(c) did not apply to that case, and therefore the warrant issued by the justice of the peace was valid, because the search warrant was issued to seize illegal drugs, permissible under article 18.02(7), and persons, permissible under article 18.02(11). Lovely v. State, 894 S.W.2d 99, 102 (Tex.App.-Beaumont 1995, pet. ref'd).

We find similarly in this ease that the warrant issued was permissible under article 18.01. The warrant states in relevant part that “[Y]ou shall search for and, if the same be found, seize and bring before me the property described in the affidavit, to-wit: COCAINE.” The warrant authorizes the seizure of no other evidence. Such a search falls under article 18.02(7), which allows for a search warrant to be issued to find “drugs kept, prepared, or manufactured in violation of the laws of this state.” Tex.Code CRiM. PROC. Ann. art. 18.02(7) (Vernon Supp.2003). The warrant was not, therefore, an article 18.02(10) eviden-tiary warrant, because article 18.02(10) is “a catch-all section that applies only when the other articles do not.” State v. Young, 8 S.W.3d 695, 698 (Tex.App.-Fort Worth 1999, no pet.). Therefore, the limitations of article 18.01(c) do not apply, and the evidence sought was obtainable by a search warrant issued by a justice of the peace. See Mason, 838 S.W.2d at 660.

The present case does differ from those cited above in that here, the warrant was incorrectly subtitled “(Article 18.02(10), Texas Code of Criminal Procedure).” In none of the above cases was the title, if any, of the search warrants mentioned. However, we find the decision of the Port Worth Court of Appeals in Young instructive. Young, 8 S.W.3d at 698. In Young, a search warrant was brought authorizing the seizure of “evidence, to wit: 1. Keltec 9mm pistol or any other 9mm pistols.” Id. at 696. The police searching appellant’s home found no Keltec 9mm pistol, but did seize other 9mm weapons belonging to appellant. Id. The detective who drafted the warrant identified the object of search as “evidence.” Id. at 698. The detective further testified at the hearing that the warrant was evidentiary. Id. The appellant argued that the warrant was therefore an evidentiary warrant under article 18.02(10) and, because it failed to identify the specific guns seized from appellant’s home, the evidence obtained was inadmissable. Id. at 696-97. The Young court found, however, that the document itself reflected an intent to search for an instrument of the crime, the gun used in the offense. Id. at 698. The affidavit attached to the search warrant further evidenced this intent. Id. The Young court looked to the language of the warrant and the statements made in the affidavit in finding that the warrant was properly classified under article 18.02(9), not article 18.02(10), despite the officer’s characterization of the search as evidentiary, both in oral testimony and on the affidavit and warrant. Id.

We find that the language of the search warrant clearly falls under article 18.02(7), and not article 18.02(10). As mentioned supra, the plain language of the warrant authorizes the seizure of only cocaine. The affidavit used to procure the warrant similarly states that “[i]t is the belief of affiant that said suspected party has possession of and is concealing at said suspected place the following property: Cocaine.” No other evidence is mentioned in the affidavit, and none was sought in the warrant. Looking to the language of the affidavit as well as the warrant, as did the Young court,⁷ we find that the warrant is properly characterized as an article 18.02(7) warrant despite its title, and therefore was properly issued by the justice of the peace. The trial court thus erred in granting the motion and ruling the evidence inadmissible. We grant the State’s sole issue.

CONCLUSION

Accordingly, we reverse the trial court’s order and remand the case for further proceedings commensurate with this opinion.

Justice YÁÑEZ dissenting, joined by Chief Justice VALDEZ and Justice RODRIGUEZ.

Footnotes

2

. TexCode Crim. Proc. Ann. art.44.01(a)(5)(Vernon Supp.2003); State v. Medrano, 67 S.W.3d 892 (Tex.Crim.App.2002) (State may appeal any questionable ruling that excludes evidence that may be legally admissible, regardless of title of motion seeking exclusion, or the wording of order excluding evidence).

3

. Tex. Health & Safety Code Ann. § 481.112(d) (Vernon Supp.2003).

4

. Article 18.02(10) of the code of criminal procedure authorizes the issuance of a search warrant for "property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.” TexCode Crim Proc. Ann. art. 18.02(10)(Vernon Supp.2003). A search warrant issued pursuant to article 18.02(10) is known as an “evidentiary warrant.” Scott v. State, 868 S.W.2d 430, 432 (Tex.App.-Waco 1994, pet. ref'd).

5

. TexCode Crim. Proc. Ann. art. 18.02 (Vernon Supp.2003). Article 18.02 sets out twelve categories of property, items, or persons for which a search warrant authorizing the search and seizure of the same may issue. Id.

6

. TexCode Crim. Proc. Ann. art. 18.02(7) (Vernon Supp.2003). That section provides that a search warrant may issue for the search and seizure of "drugs kept, prepared, or manufactured in violation of the laws of this state.” Id.

7

. We likewise have held that, in a review of the validity of a search warrant, "[w]e read the affidavit and warrant together and interpret them in a common sense and realistic fashion.” Mason v. State, 838 S.W.2d 657, 660 (Tex.App.-Corpus Christi 1992, pet. ref’d).