Affirm, Opinion Filed June 10, 1998

In The

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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 of amphetamine with intent to

deliver (No. 05-96-00877-CR). Appellant pleaded guilty to the charges and, pursuant to
a 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 same two points of error in each case.

In the first point, appellant contends that the searches violated her rights under

article one, section nine of the Texas Constitution and articles 1.06, 18.01, and 38.23 of the

code of criminal procedure. Tex. Const, art. I, §9; Tex. Code Gum. Proc. Ann. arts. 1.06,

18.01, 38.23 (Vernon 1977 &Supp. 1998). In her second point of error, appellant contends

that the searches violated her rights under the Fourth and Fourteenth Amendments to the

United States Constitution. U.S. Const, amends. IV, XIV. We overrule both points of

error and affirm the trial court's judgments.

BACKGROUND

On January 14, 1993, the police searched the residence shared by appellant and codefendant, William Lane, pursuant to asearch warrant asserting that Lane was in possession

of and was manufacturing methamphetamine. The police found amphetamine,

methamphetamine, several small marijuana plants, and equipment for cultivating marijuana.

On about August 9, 1993, and on August 16, 1993, the police received complaints

that appellant and Lane were growing marijuana. On August 19, 1993, police officers saw

a large potted marijuana plant on appellant's front porch. The police obtained a search

warrant on August 19, 1993 and, on August 20, 1993, searched the 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 of appellate procedure 25.2(b)(3) and

former rule of appellate procedure 40(b)(1). See Tex. 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

to suppress evidence seized pursuant to a search warrant, the issue before the trial court is

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 support issuance of a search warrant is determined by examining the

totality ofthe circumstances. Ramos v. State, 934 S.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 de novo the sufficiency of an affidavit to support a search warrant but shows great

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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 (quoting Jones v. United States, 362 U.S. 257, 271 (I960)); see Johnson

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 Amendment claims 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 suppress evidence 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 due process rights under the Fourteenth Amendment." Loserth, 963 S.W.2d at 771. The court did

not explainitsreasons for applying Guzman outsidethe warrantless arrest context, nordid it place any limits on the applicability

of Guzman to motions to suppress evidence of any type for any reason. It would appear thatthe courtof criminal 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 of those 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 of a 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 issue independently,

or de novo. Id. In Guzman, the court of criminal appeals held that the issue of whether 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 seized pursuant to 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 and giving great deference

to the magistrate's decision to issue the warrant, whether the magistrate had a substantial

basis for concluding that a search would uncover evidence ofwrongdoing. See Lane v. 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 of error. In the first point of

error, appellant contends that the searches violated her rights under the Texas Constitution

and the code of criminal procedure; in the second point of error, appellant contends that

the searches violated her rights 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 consider the state and federal grounds to be the same

and consider them together. See Arnold 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 Section
executed 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 start the 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 in possession

of methamphetamine 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 a year 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.

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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, a reviewing 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 a typographical error. However, because Bishop did not testify to what the correct year

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 about one-and-a-half years, or

from aboutJuly 1991. Therefore, the correct date could not be before July 1991. Because

1992 is not the correct year, and a January 13 before 1992 would not have 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 to place 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 of the circumstances, including Johnson's statement that on
January 13, 1993, Lane was in the process of manufacturing methamphetamine using

laboratory equipment located in the garage of the premises and would 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 affidavit supporting 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 belief on the following facts:

Ward received information on August 16, 1993 that appellant and Lane

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 and knowingly in possession of . . . marijuana at the place and

premises described . . . above."

Appellant asserts that all references to the January 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 not illegal. Appellant's argument lacks merit.

Some of the underlying circumstances of which the magistrate was informed through

the affidavit at the time of the issuance of the search warrant were: Complaints about

marijuana being grown at the named location, the presence of the marijuana plant in front

of the house, the January 14, 1993 search involving discovery ofseveral marijuana plantsand

cultivation paraphernalia, and appellant's and Lane's history of drug arrests. Applying a

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

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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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