## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 17 - 00028 - CR

EUNICE CRISTINA RODR IGUEZ APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM CRIMINAL DISTRI CT COURT NO. 2 OF TA RRANT COUNTY

TRIAL COURT NO. 1447 239R

---------- 

### MEMORANDUM OPINION 1

---------- Appellant Eunice Crist ina 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. 47.4.2

instruction on corroborative testimony not egregiously harmful, and because Rodriguez did not preserve her appellate suppression argument in the t rial court, we affirm the trial court’s judgment. I. BACKGROUND
A. T HE M URDER Tommy Brown, w ho worked as a night cleaner for a Fort Worth janitorial

services company , was in a relationship with Conn ie More no. 2 Moreno was a “very petite, ” Hispanic woma n whom Brown regularly introduced as his wife although they apparently were not married. In 2003 or 2004, Brown also became involved with Rodriguez , w ho 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 romantic ally 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.”3

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 slappe d 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 neighb orhood 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 ba ck bedroom for “a real long time

. ” During this time, Brown returned and he and Rodriguez l eft 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. Rodrigue z 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. Rod riguez 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 g et some other “things” as well. Ellis left with the4

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 Brow n’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. T HE I NVESTIGATION Two days later , Andrea went to Brown’s home to check on him a fter a neig hbor reported that s he 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 d own 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.5

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 r esponding officer recalled hav ing Brown’s truck towed on the morning of September 6 from

a nearby convenience stor e where it had been found abandoned with the keys in it. When officers checked the truck, they found a plas tic bag containing pieces of a toi let

- tank lid, a shoe, and a belt. The item s tested positive for blood. Rodriguez , Ellis, and Brown could not be excluded as contributor s to the mixed DNA profile found on the belt. While the lead detective, Thomas O’ Brien, was driving Andrea to the po lice 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.” And rea gave O’Brien Rodriguez’s name and mention ed 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 He n derson and Willie Wingfield. Wingfield sta ted 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
str anger 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 time6

Wingfield saw Brown. The n ext 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 . A fter 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 arr ive 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 vid eo 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 2003.7

O’Brien searched police reports for Brown’s address and found that Brown had accused Rodriguez of theft earlier that year, in July 20 13. Brown had reported that he believed Rodriguez had taken his wallet and that when he called Rodriguez to c onfront 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 reaso n 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 Andre a 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 S eptember 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 building s are covered for the weekend. Call me as soon as
y ou 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 wallet8

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 an d as ked 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 an d 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 submi tted 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.

6 O’Brien was able to f ind Brown’s phone b y calling Brown’s number and hearing it ring from the back of the dresser.9

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. P RETRIAL AND T RIAL Ro driguez 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 wa s 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 plan ned 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 motio n 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.”10

O’Bri en omitted material facts in his supporting affidavits

. Specifically, Rodriguez pointed to the fact that O’Brien did not disc lose th at 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 denie d Rodriguez’s motion: And the Court is not go ing 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 som e 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 re ceived . . . and also the accusations by Mr. Bro wn 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. A PPEAL The jury found Rodriguez guilty of the lesser

- incl uded offense of murder and assessed her pu nishment 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 o n appeal, Rodrigu ez 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 o ffender 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).11

accomplice, may be corroborated by the othe r 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 cor roborate ea ch 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. S UFFICIENCY The code of criminal procedur e 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 ). C orroboration of either accomplice or informant testimony is not sufficient if such corroborating evidence shows nothing more than the commission of the offense. Id. art s. 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.12

Chapman v. State , 470 S.W.2d 656, 660 (Tex. Crim. App. 1971). But whether accomplice and inf ormant 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 Ba rbara Hervey has noted that the plain langua ge of articles 38.075 and 38.14 seem to allow such cross

corroboration , although sh e acknowledged this result seemed counterintuitive : The corroboration requirement in both statutes refers to “ other evid ence,” bu t 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 accomp lice and a “jail hou se” 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 interpret ation would seem to undermine the policy reason for the existence of both statutes. If the stat ut es 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 j udiciary 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 int erplay between these two statutes to ensure that they operate as intended when there is accomplice and “jail house” informant testimony in the same case.13

Mata v. State , 542 S.W.3d 582, 583 (Tex. Crim. App. 2018) (Hervey, J., concurring op. to refusal of p et.) (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 c orro borate 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 s ee 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 som e way to the crime, allow ing 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 Rich ardson, David Newell, and Scott Walker

.14

incriminating circumstances may afford the requisite corroboration as long as the combined weight of these circumstance s 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 , inde pendently 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 w ho was not Moreno , and a lso 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 nei ther Ellis nor Rodriguez could be excluded as a contributor to the mixed DNA profile. Security video showed Rodriguez and Ellis using Brown’s d ebit card beginning shortly after the murder and continuing until Brown’s account was drained, which occurred wh en 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. Grimes15

also received text messages from Brown’s phone number in which the sender asked Gr imes 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 walle t, 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 bac k 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 surveillanc e 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 , includ ing handwritten notations of Brown’s bank

account informa tion and driver’s license n umber. This evidence and the inf erences 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, n o pet.); Hernandez v. State , 327 S.W.3d 200, 207

– 08 (Tex. App.

— San Antonio 2010, pet. ref’d);16

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. J URY C HARGE Rodriguez asserts in her fifth point that she was egregiously harmed by th e absence of a jury instruction that explained Fisher ’s and Ellis ’s testimonies could
not be cross - corroborate d

. Indeed, because Rodriguez did not object to the jury charge on this basis, she must show egregious harm arising from the a bsence 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 h arm 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

an d sign ificantly 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); Broo ks 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.17 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 Hisp anic 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 viewe d a photo array and both chose the same “fill er” photo.18

I spoke with Tommy Brown’s neighbor, Willy Wingfield, who said that on Thursday evening at approximately 2130 hr s
– 2200 hrs he observed a heavy set Hispanic female, that has hung out with Tommy Br own 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 th at the next morning at approximately 0630 h rs, 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 the m 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 unk nown mal e was not Conception Moreno. . . . I spoke with Tommy Brown’s other neig hbor, 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 R odriguez’ 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 raise d in the trial court the same legal theory supporting suppr ession 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.)19

(mem. op., not designated for publication); Crouse v. State , 441 S.W.3d 50 8, 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 mater ial

misstatement theory; thus, she h as failed to preserve this argument for our review. See Skinner

, 2016 WL 29539 54, at *5

– 6. We overrule points three and four on this basis. But even if preserved, Rodriguez’s argument s are witho ut merit. First, at no point did the affidavits misstate t hat 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 reckles s disregard”). O’Brie n included the facts that Wingfield only saw a large, Hispanic woman who was not Moreno and that Henderson only saw Brown’s “Hispanic girlfrien d.” 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 affidavit s created a mere “implication” that Rodr iguez was the woman Henderson and Wingfield saw

. To be sure, an implication d oes not satisfy Rodriguez’s burden to establish by a preponderance of the evidence that O’Brien made a material and false statement with t he requisite mens rea in his20

probable

- cause affidavits

. See C ates 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 o n 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 wor ds, even if O’Brien had included Wingfield’s inability to identify Rodriguez from the photo array, probable cause was st ill 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. Stat

e , 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

corro borating 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 a rticle 38.075 or article 38.14. Finally, the trial court did

11 Again, although Rodriguez asserts on appeal that O’Brien’s affidavit misstatement was that Henderson and Wingfield identified Rodriguez from the photo array, Henderson did not view an array.21

not err by denying Rodriguez’ s motion to suppress even were we to assume Rodriguez raised her appellate suppression arg ument in the trial court. Accordingly, we affirm the trial court’s judgmen t. 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