NO. 07-09-00234-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

APRIL 6, 2010 

THE STATE OF TEXAS, APPELLANT 

v. 

CHRIS ALLEN MCLAIN, APPELLEE 

 FROM THE 242ND DISTRICT COURT OF HALE COUNTY; 

NO. B18002-0904; HONORABLE EDWARD LEE SELF, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

OPINION 

The State of Texas appeals the granting of a motion to suppress by the trial 

court.1

 Appellee, Chris Allen McLain, was arrested and indicted for possession with 

intent to deliver a controlled substance, methamphetamine, in an amount of four grams 

or more but less than 200 grams.2 We affirm. 

 1 See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (Vernon 2007). 

2

 See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (Vernon Supp. 2009) 
2 

Factual and Procedural Background 

On February 27, 2009, a Plainview police officer presented an affidavit 

requesting a search warrant to search a business and residence at 3607 North 

Columbia in Plainview, Texas. The affidavit further alleged that the location to be 

searched was controlled by appellee. A search was conducted and officers found 

several items of contraband, among which was over 100 grams of methamphetamine. 

 A Hale County Grand Jury subsequently indicted appellee on a charge of 

possession with intent to deliver methamphetamine, in an amount of four grams or more 

but less than 200 grams. Appellee’s trial counsel filed a motion to suppress the 

contraband seized as a result of the search authorized by the warrant. The trial court 

held a hearing on appellee’s motion to suppress on June 29, 2009. At the conclusion of 

the hearing, the trial court requested briefs from both parties setting forth their 

arguments. After receiving the briefs, the trial court granted the motion to suppress on 

July 14, 2009. At the request of the State, the trial court filed findings of fact and 

conclusions of law on July 15, 2009. 

The State has brought forth two issues on appeal. First, the State contends that 

the trial court abused its discretion by granting the motion to suppress. Second, the 

State alleges that the good faith exception contained in article 38.23 of the Texas Code 

of Criminal Procedure3

 applies. Disagreeing with the State, we will affirm the judgment 

of the trial court. 

 3 Further reference to the Texas Code of Criminal Procedure will be by reference 

to “article __” or “art. __.”
3 

Standard of Review 

The State contends that the trial court abused its discretion when it granted the 

appellee’s motion to suppress the evidence seized when the search warrant was 

served. We normally review a trial court’s ruling on a motion to suppress by using a 

bifurcated standard of review, wherein we give almost total deference to the historical 

facts found by the trial court and review de novo the trial court’s application of the law. 

Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). However, when the trial 

court is determining probable cause to support the issuance of a search warrant there 

are no credibility determinations, rather the trial court is constrained to the four corners 

of the affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004). 

Accordingly, when we review the magistrate’s decision to issue a warrant, we apply a 

highly deferential standard. Swearingen v. State, 143 S.W.3d 808, 810-11 

(Tex.Crim.App. 2004). We apply this deferential standard because we have a 

constitutional preference for searches to be conducted pursuant to a warrant as 

opposed to warrantless searches. Id. at 810. (citing Illinois v. Gates, 462 U.S. 213, 234-

37, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983)). As long as the magistrate had a 

substantial basis for concluding that probable cause existed, we will uphold the 

magistrate’s probable cause determination. Gates, 462 U.S. at 236. 

For purposes of our review, we will find probable cause to exist when the affidavit 

shows facts and circumstances within the affiant’s knowledge to warrant a person of 

caution to believe that 1) a specific offense has been committed, 2) the property to be 

searched or items to be seized constitute evidence of the offense or evidence that a 
4 

particular person committed the offense, and 3) the property or items are located at or 

on the person, place, or thing to be searched. Art. 18.01(c); Hughes v. State, 843 

S.W.2d 591, 593 (Tex.Crim.App. 1992). Finally, we are instructed not to analyze the 

affidavit in a hyper-technical manner. Gates, 462 U.S. at 236. Rather, when we review 

the magistrate’s determination, we should interpret the affidavit in a commonsensical 

and realistic manner, recognizing that the magistrate may draw reasonable inferences. 

Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App. 2007). 

Analysis 

According to the findings of fact issued by the trial court, the court found that the 

affidavit lacked any specificity regarding when the matters referenced within its four 

corners occurred. The only mention of time within the four corners of the affidavit is the 

following statement: “In the past 72 hours, a confidential informant advised the Affiant 

that Chris was seen in possession of a large amount of methamphetamine at his 

residence and business.” The State urges that we view this statement as implying that 

the observation of the methamphetamine occurred within the 72 hours before the 

execution of the affidavit. However, such an implication is not supported by the plain 

text of the affidavit. We agree with the trial court that, given a common sense reading, 

the affidavit’s reference to the “past 72 hours” speaks to when the affiant spoke to the 

confidential informant, not when the confidential informant acquired the information. 

 All we can determine from the four corners of the affidavit is when the affiant 

spoke to the confidential informant. As the only time reference given in the affidavit is 

the one described above, the affidavit fails to provide probable cause for it fails to meet 
5 

the requirements of article 18.01(c). See art. 18.01(c). The affidavit fails to give the 

magistrate any idea of when any of the activity which allegedly supports the issuance of 

a warrant occurred. See Davis v. State, 202 S.W.3d 149, 155 (Tex.Crim.App. 2006). 

The failure to describe when the events referred to took place is fatal to the efficacy of 

the affidavit. Schmidt v. State, 659 S.W.2d 420, 421 (Tex.Crim.App. 1983). Because 

the affidavit fails to meet the requirements of article 18.01(c), there can be no probable 

cause for the issuance of a search warrant. Id. Accordingly, the trial court did not 

abuse its discretion in granting appellee’s motion to suppress. We, therefore, overrule 

the State’s first issue. 

Article 38.23(b) 

We will next address the State’s second contention. The State alleges, because 

appellee’s motion to suppress was based on claims that the search in question violated 

the Fourth Amendment to the United States Constitution and Article I, section 9 of the 

Texas Constitution and did not specifically request exclusion of the evidence pursuant 

to article 38.23(a), that the good faith exception of article 38.23(b) applies to allow the 

State to use the evidence. 

First, the position of the State ignores the plain language of article 38.23(b), 

which states: 

It is an exception to the provisions of Subsection (a) of this Article that the 

evidence was obtained by a law enforcement officer acting in objective 

good faith reliance upon a warrant issued by a neutral magistrate based 

on probable cause. 

art. 38.23(b). 
6 

 When we construe a statute, we look at the plain meaning of the words used in 

the statute unless the language is ambiguous or its plain meaning leads to absurd 

results. Swearingen v. State, No. AP-76,073, 2010 Tex.Crim.App. LEXIS 9, at *8 

(Tex.Crim.App. February 10, 2010). Looking at the plain meaning of the statute, it is 

clear, that in order for the exception that the State urges to apply, there must first be 

probable cause. See Carroll v. State, 911 S.W.2d 210, 223 (Tex.App.—Austin 1995, no 

pet.) (citing Curry v. State, 808 S.W.2d 481, 482 (Tex.Crim.App 1991)). Inasmuch as 

we have determined that the trial court did not abuse its discretion in finding that the 

affidavit in support of the search warrant did not provide probable cause, the exception 

of article 38.23(b) does not apply. Therefore, we overrule the State’s second issue. 

Conclusion 

 Having overruled the State’s issues, we affirm the trial court’s judgment. 

 Mackey K. Hancock 

 Justice 

Publish. 

Pirtle, J., concurring.