## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00028 - CR

TRAVIS CHRIS GRAY APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM CRIMINAL DISTRICT CO URT NO. 4 OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- Appellant Travis Chris Gray appeals his conviction for possession of four or more but less than two hundred grams of cocaine

. See Tex. Health & Safety Code Ann. § § 481.102(3)(d), 481.115 (a), (d) (West 2010). He contends in one point that the evidence of cocaine found in plain view during a search pursuant to a warrant should have been suppressed because the supporting affidavit failed to

1 See Tex. R. App. P. 47.4.2

provide facts establishing probable cause that evidence was located at the place listed in the affidavit. See Tex. Cod e Crim. Proc. Ann. art. 18.01 (West Supp

. 2010). We affirm. Background Facts Police officers arrested appellant after they seized cocaine found in plain view while searching his h ouse for evidence that he had kidnapped, assaulted, and battered his ex

- gir lfriend. Because appellant challenges the sufficiency of the search warrant affidavit to show probable cause that evidence of these crimes would be found at his house, we provide the facts as stated in the affidavit. Appellant‘s ex

- girlfriend called the police with her cell phone from a McDonald ‘ s restaurant , where appellant had taken her. By the time the police arrived, appellant was gone. The police took photographs showing that the complainant had two black eyes and bruises on her head, face, and bod y. The police completed a family violence packet and gave the dispute a report number, which was subsequently assigned to Detective M.D. Green. Three days later, appellant‘s ex

- girlfriend gave Detective Green a recorded statement. Detective Green observ ed swelling and bruising on her arms and neck; the complainant also told Detective Green that she had sustained inj uries to her arms, which bled.3

In the affidavit, Detective Green states that appellant had pulled the complainant out of a friend ‘ s car in w hich she had been riding, had handcuffed her arms behind her back, and had forced her into his car. In his car, he placed the child safety lock on so that she could not escape. Appellant drove to a friend's house, grabbed a hammer from the garage, and st ruck her with the wooden handle. After driving to a deserted area, he also struck her with his fist, and he kicked her seve ral times in the side. Appellant then drove his ex

- girlfriend to his house. Before taking her inside, he threw the hammer handle i n the common area of his duplex ‘ s yard. Appellant kept her in his house overnight. The affidavit states ― [ t ] hat the following day [appellant] uncuffed [her ] and drove her to the McDonald [ ‘ ] s to get her something to eat,‖ which is where she called the pol ice. The police did not find appellant at the McDonald ‘ s. The affidavit also states that Detective Green, accompanied by another detective, went to appellant ‘ s address, and they found the wooden hammer han dle in plain view in the yard. The affidavit ask ed for a warrant to search appellant ‘ s residence for the following items: (1) handcuffs, (2) blood or other biological evidence, (3) hair, fibers, fingerprints, or other trace evidence, and (4) any other evidence of an

a ggravated kidnapping offense. After reviewing the foregoing allegations in the affidavit, the magistrate issued a warrant to search appellant ‘ s residence for the4

items listed in the affidavit. Officers executed the warrant, but instead of finding evidence associated with the alleged kidnap ping, except for a handcuffs key, they seized cocaine t hat was in plain view. At trial, appellant objected to the validity of the search, challenging the sufficiency of the affidavit to show probable cause that evidence of the alleged aggravated kidnappin g was at his residence. The court reviewed the affidavit, overruled appellant ‘ s objection, and admitted t he evidence about the cocaine. Standard of Review The Fourth Amendment to the United States Constitution requires that ―no W arrants shall issue, but upon probable cause, suppor ted by O ath or affirmation, and particularly describing the place to be searched, and the person s or things to be seized.‖ U.S. Const. amend. IV. Under a rticle 18.01 of the c ode of c riminal
p rocedure, a search warrant may be o btained from a magistrate only after submission of an affidavit setting forth substantial facts establishing probable cause. Tex. Code Crim. Proc. Ann. a rt. 18.01(b). Probable cause exists if, under the totality of the circumstances set forth in the affi davit before the magistrate, there is a ―fair probability‖ that contraband or evidence of a crime will be found in a particular place at the time the warrant is issued. Illinois v. Gates , 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); Flores v. State , 3 19 S.W.3d 697, 702 (Tex. Crim. App. 2010). The magistrate may interpret the affidavit in a nontechnical, common

- sense manner and may draw5

reasonable inferences from the facts and circumstances contained within its four

corners. Flores , 319 S.W.3d at 702; Cassias v. State, 719 S.W.2d 585, 587

– 88 (Tex. Crim. App. 1986) (op. on rehg) . In United States v. Ventresca , the Supreme Court described the flexibility that should be accorded to magistrates:

These decisions reflect the recogn ition that the Fourth Ame ndment‘ s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court‘ s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. This is not to say that p robable cause can be made out by affidavits which are purely concl usory, stating only the affiant‘ s or an informer‘ s belief that probable cause exists without detailing any of the  ̳ underlying circumstances ‘ upon which that belief is based. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the sou rce of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.6

380 U.S. 102, 108

– 09, 85 S. Ct. 741, 74 6 (1965) (citation omitted) . Reviewing courts give great deference to a magistrate‘ s determination of probable cause. Gates , 462 U.S. at 236, 103 S. Ct. at 2331; Rodriguez v. State , 232 S.W.3d 55, 59

– 60 (Tex. Crim. App. 2007) . ―[T]he duty of the reviewi ng court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.‖ Gates , 462 U.S. at 238

– 39, 103 S. Ct. at 2332 ( internal quotations omitted). Analysis In reviewing t he sufficiency of the affidavit‘ s sh owing of probable cause, we consider whether the affidavit established probable cause for any one of the four items listed in it. See Ramos v. State , 934 S.W.2d 358, 363 (Tex. Crim. App. 1996) ( explaining the rule of severability by which invalid portions of a warrant are severable from va lid portions) cert. denied , 520 U.S. 1198 (1997). Handcuffs were the first items listed in the affidavit. The affidavit stated that appellant handcuffed his ex

- girlfriend in the car and kept her in the handcuffs through out the night at his house. He uncuffed her the ne xt day and took her to

a McDonald‘ s. Appellant contends that the affidavit failed to establish probable cause that the handcuffs would be found at his house because it did not indicate where the handcuffs were left upon removal; appellant argues that they could have been taken off and left in his car rather than his house. Although the affidavit does not expressly state that appellant and the complainant were still at7

his house when he removed the handcuf fs, it is just as reasonable to infer that they were in the house as in the car. See Rodriguez , 232 S.W.3d at 64 (―It is not necessary to delve into all of the facts that were omitted by the affiant, facts that could have been included in the affidavit, o r contrary inferences that could have been made by the magistrate.‖). We conclude that the affidavit provides sufficient evidence to show probable cause that handcu ffs would be found at appellant‘s home. Even had there not been sufficient evidence to sho w probable cause regarding the handcuffs, the affidavit contains sufficient facts to warrant a reasonable inference that the second and third items would be found at the house, given the forceful nature of the kidnapp ing and detainment of appellant‘ s

ex - gi rlfriend as outlined in the affidavit. According to the affidavit, a ppellant physically battered her, causing her to bleed on her arms and sustain various other injuries on her body. The affidavit also states that a ppellant held her captive in handcuffs in his house throughout the night. Based on the foregoing facts, we hold that it is a reasonable inference from the facts in the affidavit that blood, hair, fibers, fingerprints, or other evidence of the complainant ‘ s inj uries probably could be found at a ppellant‘ s house. See State v. Duncan , 72 S.W.3d 803, 807

– 08 (Tex. App.

— Fort Worth 2002, pet. dism‘d) (holding it could be reasonably inferred that videotape and pictures of sexual activity would be found at appellant‘s house given intimate nature of sexu al activity and fact that he8

recorded it with hidden cameras); see also Wamsley v. State , No. 02

- 06

- 00 0 89

- CR, 2008 WL 706610, at *18 (Tex. App.

— Fort Worth Mar. 13, 2008, pet. ref‘ d) (mem. op., not designated for publication) (holding magistrate could reaso nably infer from affidavit that blood would be found in car used by murderers because there was blood at crime scene and it was likely that murderers got blood on themselves)

. Giving deference to the magistrate‘ s decision to issue the search warrant, and applying the applicable law to the facts in this case, we conclude that the affidavit provided the magistrate with probable cause necessary for the issuance

o f a search warrant of appellant‘ s house. See Gates , 462 U.S. at 236, 103 S. Ct. at 2331; Rodrigue z , 232 S.W.3d at 59

– 60; see also Duncan , 72 S.W.3d at 806. Acc ordingly, we overrule appellant‘ s sole p oint. Conclusion Having overruled appellant‘ s sole p oint, we affirm the trial court‘ s judgment

.

PER CURIAM PANEL: LIVINGSTON, C.J.; WALKER and MCCO Y, JJ. DO NOT PUBLISH Tex. R. App

. P. 47.2(b) DELIVERED: October 27, 20119