Affirm, Opinion Filed June 10, 1998

In The 

### (tiaurt at Appeals 

## iJTtf tJrf Itstrtrt at ©*xas at Sallas
No. 05-96-00875-CR No. 05-96-00876-CR No. 05-96-00877-CR
LORIE DENISE ROUNDTREE, Appellant

THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause Nos. F93-34772-NK, F93-34781-NK, F93-34782-NK
OPINION Before Justices Lagarde, Whittington, and Roach Opinion By Justice Lagarde 

### Lorie Denise Roundtree appeals from convictions for possession of 

### methamphetamine with intent to deliver (No. 05-96-00875-CR), possession of methamphetamine (No. 05-96-00876-CR), and possession ofamphetamine with intent to deliver (No. 05-96-00877-CR). Appellant pleaded guilty tothe charges and, pursuant toa plea bargain, the trial court sentenced appellant to five years' imprisonment. The drugs 

### in question were seized pursuant to two separate search warrants executed at appellant's residence on different dates. Appellant brings the sametwo points of error in each case. 

### In the first point, appellant contends that the searches violated her rights under article one, section nine of theTexas Constitution andarticles 1.06, 18.01, and38.23 of the 

### code ofcriminalprocedure. Tex. Const, art. I, §9; Tex. CodeGum. Proc. Ann. arts. 1.06, 18.01, 38.23 (Vernon 1977 &Supp. 1998). Inhersecondpointoferror, appellantcontends that the searches violated her rights under the Fourth and Fourteenth Amendments tothe United States Constitution. U.S. Const, amends. IV, XIV. We overrule both points of

error and affirm the trial court's judgments. BACKGROUND 

### OnJanuary 14, 1993, the police searchedthe residence sharedby appellantand codefendant, WilliamLane, pursuanttoasearchwarrantassertingthatLanewasinpossession of and was manufacturing methamphetamine. The police found amphetamine, 

## methamphetamine, severalsmallmarijuanaplants, andequipmentforcultivatingmarijuana. On about August 9, 1993, and on August 16, 1993, the police received complaints 

## that appellant andLanewere growingmarijuana. OnAugust 19, 1993, police officers saw 

## alarge potted marijuana plant on appellant's front porch. The police obtained asearch warranton August 19, 1993 and, on August20, 1993, searchedthe residence. The police found marijuana and methamphetamine.Appellant filed a motion to suppress asserting that the affidavits did not show probable cause for the issuance of the search warrants. After the trial court denied the motion to suppress, appellant pleaded guilty in each case pursuant to a plea bargain. The trial court sentenced appellant in accordance with the plea bargains. Appellant filed a 

### notice of appeal in each case complying with rule ofappellate procedure 25.2(b)(3) and 

### former rule ofappellate procedure 40(b)(1). SeeTex. R.App. P.25.2(b)(3); Tex. R. App. P. 40(b)(1) (former rules). STANDARD OF REVIEW OF A TRIAL COURT'S ORDER ON A MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT 

### Appellant contends that the trial court erred in overruling her motion to suppress because the search warrants were not supported by probable cause. In deciding a motion 

### tosuppress evidence seized pursuant to asearch warrant, theissue before thetrial courtis whether the issuing magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing. Whether the facts alleged in a probable cause 

### affidavit sufficiently supportissuance of a searchwarrant is determined by examining the 

### totality ofthe circumstances. Ramos v. State, 934S.W.2d 358, 362 (Tex. Crim. App. 1996), cert, denied, 117 S. Ct. 1556 (1997). The allegations are sufficient if they would "justify a 

### conclusion that the object of the search is probably on the premises." Id. at 363 (quoting Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986)). The trial court does not review denovo the sufficiency of an affidavit to support a search warrant but shows great

-3-deference to the magistrate's decision. Illinois v. Gates, 462 U.S. 213, 236 (1983); Ramos, 934 S.W.2d at 363. The trial court's duty "is simply to ensure that the magistrate had a 'substantial basis for . . . concluding]' that probable cause existed," i.e., that there was a "fair probability" contraband would be found at the place named in the warrants. Gates, 462 U.S. at 238-39 (quotingJones v. United States, 362 U.S. 257, 271 (I960)); seeJohnson
v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990), cert, denied, 501 U.S. 1259 (1991). In Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), the court of criminal appeals clarified the standard of review to be used by appellate courts in reviewing a trial court's order on a motion to suppress evidence obtained through a search incident to a warrantless arrest. See id. at 87-89. In Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998), the court of criminal appeals stated that Guzman applied to all motions to suppress 

### evidence based upon Fourth Amendmentclaims as well as other claims.1 Id. at 771. In Guzman, the court of criminal appeals explained that the standard of appellate review depends on the type of question presented. It recognized three types of questions: (1) historical facts that the record supports, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor; (2) application of law to fact questions, i.e., mixed questions of law and fact, when the ultimate resolution of those questions turns

1The court held that the Guzman standard applied to "motion[s] to suppressevidence based upon a claim that an in-court identification should not have been admitted due to taint by an impermissibly suggestive pretrial identification procedure, in violation of the defendant's dueprocess rights under the Fourteenth Amendment." Loserth, 963 S.W.2d at771. The court did not explainitsreasonsforapplying Guzman outsidethewarrantlessarrestcontext, nordid itplace any limits on theapplicability ofGuzman tomotions tosuppress evidence of any typefor anyreason. It wouldappear thatthe courtofcriminal appeals intends Guzman to be the standard of appellate review of all orders on motions to suppress.on an evaluation of credibility and demeanor; and (3) mixed questions of law and fact when the resolution ofthose questions does not turn on an evaluation of credibility and demeanor. See Loserth,963 S.W.2d at 772; Guzman, 955 S.W.2d at 89. In reviewing the first two types of questions, an appellate court shows "almost total deference" to a trial court's determination because ofa trial court's exclusive fact-finding role and because a trial court is in an appreciably better position to decide the issue. Guzman, 955 S.W.2d at 89. In reviewing the third type of question, where the resolution of the issue does not turn on an evaluation of credibility and demeanor, an appellate court is in as good a position to review the issue as the trial court; therefore, an appellate court determines the issueindependently,
or de novo. Id. In Guzman,the court of criminal appeals held that the issue ofwhether an officer had probable cause to arrest a suspect without a warrant, under the totality of the circumstances, was a question of the third type. Id. at 87. Applying Guzman's general standard of review to an order on a motion to suppress evidence seizedpursuantto a search warrant, the issue before the trial court is the propriety of the magistrate's determination that there is probable cause to issue the search warrant. When this issue is determined by the trial court reviewing the same affidavit considered by the magistrate in deciding whether to issue the warrant, as it was in these cases, resolution of a motion to suppress evidence seized pursuant to a search warrant does not turn on an evaluation of credibility and demeanor, thus the issue also falls within the third type of 

### question under Guzman. Therefore, we determine independently, or de novo, the issue

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### before the trial court: viewing the totality of the circumstances andgiving great deference 

### to themagistrate's decision to issue the warrant, whether the magistrate had a substantial basis for concludingthat asearchwould uncoverevidence ofwrongdoing. SeeLanev. State, No. 05-96-00878-CR, slip op. at 7 (Tex. App.-Dallas June 4, 1998, no pet. h.). Applying these standards, we consider appellant's points of error.
APPELLANT'S POINTS OF ERROR 

### In each case, appellant presents the same two points oferror. In the first point of 

### error, appellantcontends thatthe searches violatedherrights undertheTexas Constitution and the code ofcriminal procedure; in the second point oferror, appellant contends that the searches violated herrights under the federal constitution. Although she presents her 

### federal and state grounds in separate arguments, appellant fails to show a distinction between them. Accordingly, we will considerthestate and federal grounds to be thesame 

### and consider them together. SeeArnold v. State, 873 S.W.2d 27, 29 n.2 (Tex. Crim. App. 

### 1993), cert, denied, 513 U.S. 830 (1994); Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App.), cert, denied, 510 U.S. 837 (1993). JANUARY 14, 1993 SEARCH In cause numbers 05-96-00876-CR and 05-96-00877-CR, appellant asserts the 

### affidavit supporting the January 14, 1993 search warrant does not show probable cause. That affidavit states, in pertinent part: 

### On January 13, 1993, the Mesquite Police Narcotics Sectionexecuted a narcotics search warrant at 1308 Highland Street
.... Investigators recovered approximately 37 grams of methamphetamine along with cocaine and marijuana. The residents of this location were placed in custody and transported to Mesquite City Jail. During a debriefing of one of the residents, Donald Ray Johnson . . . gave Investigator D. L. Ward
... a voluntary written statement. In this statement, Johnson advises that he has personally known the [s]aid William Lane for approximately one and a half years. During this period of time Johnson and Lane together have been cooking methamphetamine inside the place and premises
.... Johnson further states that Lane would cook the methamphetamine, Johnson would sell the finished product. Johnson advises that on January 13,1992 prior to the search warrant being executed at his residence, he was inside the place and premises described

. .. above, and that the [s]aid William Lane was currently in the cooking process. Johnson states that the [sjaid William Lane had concluded the first portion of the cook process, and was supposed to startthe powdering process late during the night of the 13th. Johnson states that the laboratory equipment was setup [sic] in the garage of the place and premises described [above]. (Emphasis added.) 

### Appellant contends the affidavit shows the information that Lane was inpossession 

### ofmethamphetamine at appellant's and Lane's residence on January 14, 1993 was stale because it showed Lane may have possessed methamphetamine on January 13, 1992, more 

### than ayear before the January 14, 1993 affidavit. Thus, argues appellant, the affidavit is insufficient. At the hearing on the motion to suppress, the State called the affiant. Detective R.E. Bishop, who also typed the affidavit. Bishop testified that "1992" was a 

### typographical error, but he did not testify what the correct date was.

-7-Technical discrepancies in dates or times do not automatically invalidate a search warrant. Green v. State, 799 S.W.2d 756, 757 (Tex. Crim. App. 1990). In Green, the court of criminal appeals stated: When the question on appeal relates to descriptive facts supporting the probable cause determination, areviewing court may logically look behind the warrant to the supporting affidavit. But, the same may not be said for all so-called "technical defects" acknowledged by the State. Due to the nature of such errors, this court has held such defects may be cured by explanatory testimony.
Id. at 760. 

### In this case, Bishop testified that the date "1992" in the affidavit was incorrect and


### was atypographical error. However, because Bishop did nottestifytowhatthecorrectyear was, we must decide whether the year can be determined from the affidavit. Johnson told 

### Bishop on January 13, 1993 that he had known Lane for aboutone-and-a-halfyears, or from aboutJuly 1991. Therefore, thecorrect datecould not bebefore July 1991. Because 

### 1992 is not the correct year, and a January 13 before 1992 would nothave been possible 

### given Johnson's statement that he had known Lane only since about July 1991, the only possible January 13 date that Johnson could have described to Bishop and which Bishop could have meant toplace in the affidavit is January 13, 1993. Cf. Champion v. State, 919 S.W.2d 816, 818 (Tex. App.-Houston [14th Dist.] 1996, pet. refd) (affidavit supporting search warrant stated incorrect address). 

### Viewing the totality ofthe circumstances, including Johnson's statement that onJanuary 13, 1993, Lane was in the process of manufacturing methamphetamine using laboratory equipment located in the garage of the premises andwould begin the powdering process late during the night of January 13, 1993, and giving great deference to the magistrate's decision, we conclude that the magistrate had a substantial basis for concluding that on January 14, 1993 there was a fair probability that methamphetamine was inside the premises. We hold that the trial court did not err in overruling appellant's motion to suppress. We overrule her points of error in cause numbers 05-96-00876-CR and 05-96-
00877-CR. AUGUST 20, 1993 SEARCH In cause number 05-96-00875-CR, appellant asserts that the affidavitsupporting the August 19, 1993 search warrant does not show probable cause to search. In the affidavit, the affiant, David Ward, identified the location to be searched, stated it was in the charge of and controlled by appellant and Lane, and stated he believed they possessed marijuana at that location. Ward based this beliefon the following facts: Ward received information on August 16, 1993 that appellant andLane were growing marijuana at the location. The police had received a similar complaint about a week before August 16, 1993. Ward drove past the location between August 16 and 19, 1993 on several occasions but did not see any marijuana plants. On August 19, 1993, Ward drove past the location and saw a potted marijuana plant set outside the house on a rail just in front of the front door. "Due to the fact that marijuana has not been observed until August 19,1993 the plants may be being moved in and out of the residence
... for sunlight and security of the plants." During the January 14, 1993 search, the police recovered marijuana plants and cultivation equipment as well as a working methamphetamine lab and a substantial amount of methamphetamine. Appellant has one previous arrest on a narcotics charge, and Lane has four previous arrests on narcotics charges. "Your Affiant has had training and experience in narcotic[s] investigations. It has been your Affiant's experience that persons who cultivate marijuana use drying areas inside a covered area for the purpose of 

### drying out the marijuana to be smoked. These areas have been sheds or inside the residence [in] which the persons live. It is also common to find 

### larger and smaller plants inside these areas, either waiting to be planted outdoors or the plants have been potted for growing inside the residence and/or outbuildings located on the curtilage thereof. Therefore, your Affiant believes that the said William Eugene Lane and Lorie Denise Roundtree
. . 

### . are currently andknowingly inpossession of . . . marijuana at the place and premises described . . . above." 

### Appellant asserts that allreferences to theJanuary 14, 1993 search must be excised because that information is the fruit of an illegal search. However, as discussed above, the 

### January 14, 1993 search was notillegal. Appellant's argument lacks merit. Some of the underlying circumstances ofwhich the magistrate was informed through the affidavit at the time of the issuance of the search warrant were: Complaints about 

### marijuana being grown atthe named location, thepresence of themarijuana plant in front of thehouse, the January 14, 1993 search involving discovery ofseveral marijuanaplantsand 

### cultivation paraphernalia, and appellant's and Lane's history ofdrug arrests. Applying a 

### totality-of-the-circumstances analysis to those facts in reviewing the magistrate's probable

•10-cause determination, and giving great deference to the magistrate's determination, we conclude the magistrate had a substantial basis for his decision that there was a fair probability marijuana was inside appellant's house. Therefore, the trial court did not err in overruling the motion to suppress. We overrule both points of error in cause number
05-96-00875-CR. We affirm the trial court's judgments.

SUEL JUS' Do Not Publish Tex. R. App. P. 47 960875F.U05

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