NO. 13-14-00588-CR

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF 

TEXAS

AT CORPUS CHRISTI

THE STATE OF TEXAS, 

Appellant,

v. 

CHRISTOPHER ALEXSON PAPPILLION, 

Appellee. 

On Appeal from the 377th District Court

Victoria County, Texas 

Cause Number 13-2-27,162-D 

APPELLANT’S REPLY BRIEF 

STEPHEN B. TYLER

Criminal District Attorney

Victoria County, Texas

BRENDAN WYATT GUY

Assistant Criminal District Attorney

Victoria County, Texas

205 N. Bridge St. Ste. 301,

Victoria, Texas 77901-6576

bguy@vctx.org

(361) 575-0468

(361) 570-1041 (fax)

State Bar No. 24034895

(On Appeal)

Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

13-14-00588-CR

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

4/14/2015 9:48:05 AM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 4/14/2015 9:48:05 AM DORIAN E. RAMIREZ Clerk
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

ii

IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as 

follows: 

APPELLANT The State of Texas

APPELLEE Christopher Alexson Pappillion

TRIAL JUDGE The Honorable Robert Cheshire

377th District Court

Victoria, Texas

TRIAL PROSECUTOR Edward Paul Wilkinson 

State Bar No. 24052674

Assistant Criminal District Attorney

205 N. Bridge St. Ste 301

Victoria, Texas 77901-6576

TRIAL DEFENSE ATTORNEY Brent Andrew Dornburg

State Bar No. 24003930

120 N. Main Street

Victoria, Texas 77901

APPELLATE STATE’S Brendan Wyatt Guy

ATTORNEY State Bar No. 24034895

Assistant Criminal District Attorney

205 N. Bridge St. Ste 301

Victoria, Texas 77901-6576

APPELLATE DEFENSE Stephen D. Jackson 

ATTORNEYS Law Offices of Stephen D. Jackson & 

Associates

State Bar No. 00784324

215 Simonton

Conroe, Texas 77301
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

iii

Paul Morrison

Law Offices of Stephen D. Jackson & 

Associates

State Bar No. 24079028

215 Simonton

Conroe, Texas 77301
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

iv

TABLE OF CONTENTS 

PAGE (S) 

TABLE OF CONTENTS ........................................................................ iv

INDEX OF AUTHORITIES.................................................................... v

SUMMARY OF REPLY.......................................................................1-2

REPLY..................................................................................................2-10

 I. Even after including the omitted material at issue in 

 this case into the affidavit, probable cause to support 

 the issuance of a search warrant still exists.............................2-10

PRAYER.................................................................................................. 11

SIGNATURE........................................................................................... 11

CERTIFICATE OF COMPLIANCE................................................... 12

CERTIFICATE OF SERVICE ............................................................. 13
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

v

INDEX OF AUTHORITIES

United States Supreme Court Cases

Franks v. Delaware, 98 S. Ct. 2674 (1978)......................................1-5, 10

Texas Cases

Flores v. State, 319 S.W. 3d 697 (Tex. Crim. App. 2010) ...................... 6

Heitman v. State, 789 S.W. 2d 607

(Tex. App.-Dallas 1990, pet. ref’d).......................................................... 3

Melton v. State, 750 S.W. 2d 281

(Tex. App.-Houston [14th Dist.] 1988, no pet)......................................... 3

Rentaria v. State, 206 S.W. 3d 689 (Tex. Crim. App. 2006)................3-4

Rodriguez v. State, 232 S.W. 3d 55 (Tex. Crim. App. 2007)...............2-3

Texas Rules

TEX. R. APP. 9.4..................................................................................... 12

TEX. R. APP. 38.1..................................................................................... ii
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

1

NO. 13-14-00588-CR

IN THE COURT OF APPEALS

FOR THE THIRTEEN DISTRICT OF TEXAS

AT CORPUS CHRISTI

THE STATE OF TEXAS..................................................Appelant

v.

CHRISTOPHER ALEXSON PAPPILLION,............................Appellee

* * * * *

APPELLANT’S REPLY BRIEF

* * * * *

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, THE STATE OF TEXAS, by and through her Criminal 

District Attorney, Stephen B. Tyler, and as Appellant in the above numbered 

and entitled cause, and files this the Appellant’s Reply Brief showing: 

SUMMARY OF THE REPLY

Even if Franks hearings can be held concerning omissions in the 

affidavit, it is clear that when we apply the standard urged by the Appellee 

for evaluating a Franks violation based on an omission, which requires 

reading the omitted material into the affidavit and then determining if there 

is probable cause, there was probable cause to support the issuance of a 

search warrant in this case. The omitted material at issue in this case does 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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not diminish the probable cause that was already established by the search 

warrant affidavit for this case. The omitted material still strongly supports a 

finding that cocaine was obtained from inside Appellee’s residence, and that 

information in conjunction with the remainder of the affidavit is more than 

sufficient to establish probable cause to search Appellee’s residence. 

Therefore, even under Appellee’s favored approach, the search warrant was

still adequately supported by probable cause, and as such Appellee’s motion 

to suppress should have been denied. 

REPLY

I. Even after including the omitted material at issue in this case into

 the affidavit, probable cause to support the issuance of a search 

 warrant still exists.

 The Court of Criminal Appeals’ Rodriguez decision appears to have 

settled the issue of whether a Franks evidentiary hearing can be held 

concerning alleged omissions from an affidavit. See Rodriguez v. State, 232 

S.W. 3d 55 (Tex. Crim. App. 2007); Franks v. Delaware, 98 S. Ct. 2674 

(1978). Rodriguez saw the Court of Criminal Appeals state that “it is not 

necessary to delve into all of the facts that were omitted by the affidavit” and 

further state that, “the only issue is whether the facts that actually were in the 

affidavit, combined with all reasonable inferences that might flow from 

those facts, are sufficient to establish a “fair probability” that more cocaine 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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would be found at the Goddard Street Garage.” Rodriguez, 232 S.W. 3d at 

64. (emphasis added). That seems a definite statement that the Court of 

Criminal Appeals expects courts only to look at what was actually in the 

affidavit and thus logically would mean that Franks hearings are not to be 

conducted over supposed omissions in the affidavit. 

 However, should it be concluded that Rodriguez did not implicitly 

establish that Franks hearings cannot be based on alleged omissions from 

affidavits, and should it further be concluded that defendants will in fact be 

allowed to obtain Franks hearings on supposed omissions, then the trial 

court still erred in granting Appellee’s motion to suppress in this case.

 The Appellee argues that when a Franks hearing is going to be 

conducted for alleged omissions then the proper way to conduct such a test 

is to include the omitted material into the affidavit and then determine if it 

still establishes probable cause. See Heitman v. State, 789 S.W. 2d 607, 

610-611 (Tex. App.-Dallas 1990, pet. ref’d); Melton v. State, 750 S.W. 2d 

281, 284 (Tex. App.-Houston [14th Dist.] 1988, no pet). That does seem a

logical way to conduct an evaluation concerning alleged omissions, and 

there is dicta in the Court of Criminal Appeals’ Rentaria decision that 

suggests that if the Court of Criminal Appeals was going to extend Franks to 

apply to omissions then that is how it would structure the test. Rentaria v. 
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Victoria County Criminal District Attorney

No. 13-14-00588-CR

4

State, 206 S.W. 3d 689, 704 (Tex. Crim. App. 2006). (Rentaria was a preRodriguez case where the Court of Criminal Appeals declined to definitively 

address whether Franks applied to omissions from an affidavit but did note 

in passing that even if Franks did apply to omissions, the search warrant 

affidavit in that case would have still been valid even after the omitted 

material was included.) Rentaria, 206 S.W. 3d at 704. However, if that is 

the way to perform a Franks test concerning omissions, then the trial court 

clearly erred in granting the motion to suppress, because a review of the 

record shows that when the allegedly omitted material is read into the 

affidavit there is more than enough evidence to establish probable cause for 

the issuance of a search warrant. 

 The Appellee essentially claims six facts were left out of the affidavit 

in this case. These were: 1) that there were three other people, Nathan, Jose 

Partida, and Ivan Casas, involved in the case; 2) that there is no information 

about the credibility and reliability of any of these people; 3) that the 

Confidential Informant (hereafter CI) did not actually participate in the 

controlled purchase; 4) that it was Ivan Casas who actually went into 

Appellee’s residence and participated in the controlled purchase; 5) that the 

affiant had never deal with Mr. Casas before and did not know anything 

about his truthfulness or veracity; and 6) that the CI had no information 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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about what happened during the controlled purchase inside Appellee’s 

residence. 

 If the information that Nathan, Jose Partida, and Ivan Casas were 

involved in the case is to be read into the affidavit then it is obviously

necessary to likewise read in all of the information about how they were 

involved in the case. (Cherry picking the facts about their involvement to 

just the six facts Appellee cites, without considering all of the testimony 

about these individuals’ involvement in the case would produce exactly the 

kind of misleading affidavit that Franks hearings are designed to remedy.) 

And once the full information about the involvement of these other 

individuals is read into the affidavit, it is clear that even with that additional 

information the affidavit still easily establishes that narcotics were present at 

the 201 Wearden residence at the time the CI travelled to that location. 

 The record shows that the CI attempted to purchase cocaine from 

Nathan who did not have any cocaine. [RR-I-9]. The CI and Nathan then 

met with Mr. Partida, who also did not have any cocaine. Id. The CI, 

Nathan, and Mr. Partida then met with Mr. Casas who also did not have any 

cocaine. [RR-I-10]. Mr. Casas then took the entire group to Appellee’s 

residence at 201 Wearden where Mr. Casas went inside and then came back 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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out with the cocaine. [RR-I-10-11]. Mr. Casas then sold the cocaine to the 

CI. [RR-I-11]. 

 Nothing in that chain of events diminishes probable cause for 

searching Appellee’s residence. Quite the opposite, the chain of events leads 

to one inexplicable conclusion: that cocaine was present in Appellee’s 

residence at the time the CI travelled there. There is just no other logical 

conclusion to draw from an individual saying he does not have any cocaine, 

that same individual then traveling directly (under police observation the 

entire time) to another location, entering into that other location, and then 

emerging from that location with cocaine now in his possession. If an 

individual does not have any cocaine, goes into a building, and then a short 

time later emerges from the building with cocaine, then that certainly 

supports a reasonable inference the individual got the cocaine from inside 

the building. 

 Furthermore, when that logical conclusion (that there was cocaine in 

Appellee’s residence at the time the CI and company drove up to the 

residence and Mr. Casas went inside) is combined with the reports the police 

had that the Appellee lived at that location, and that the Appellee was 

engaged in drug trafficking, it makes it reasonable to infer that additional 

drugs are present inside the building. It may not be certain there were more 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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drugs inside the building, but it does not have to be certain to justify the 

issuance of a search warrant. The burden of proof to get a search warrant is 

probable cause not beyond a reasonable doubt. See Flores v. State, 319 

S.W. 3d 697, 702 (Tex. Crim. App. 2010). And the evidence that drugs 

were located at that residence, in conjunction with the tips the police had 

about Appellee living there and Appellee being involved in drug trafficking, 

were certainly enough to establish probable cause. See Flores, 319 S.W. 3d 

at 703(finding that an anonymous tip about narcotics activity in conjunction 

with the evidence of marihuana being located in the trash outside the 

residence was enough to establish probable cause.) If an anonymous tip plus 

drugs in the trash outside the residence is enough for probable cause then 

certainly an anonymous tip plus solid evidence that drugs were located 

inside the house is more than enough for probable cause. 

 It is likewise immaterial that the affiant had no information about the 

credibility and reliability of Nathan, Jose Partida, or Ivan Casas. They were 

not acting as police informants in this affair. Indeed they were effectively as 

much targets of the investigation as the Appellee himself. (If any of them 

had actually had cocaine, they would have sold it to the CI themselves, been 

arrested for that action, and Appellee would have never even have been 

involved in this case.) Since none of those three were acting on behalf of the 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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police, their credibility is not really at issue in the same way it would be with 

a typical confidential informant, who knows the police are watching him and 

thus might have incentives to lie. 

 Furthermore, to the extent that these three individuals’ credibility 

matters at all in this case, their credibility can be logically inferred from their 

actions. Drugs dealers presumably want to sell their drugs. As such it is 

exceedingly unlikely that Nathan, Mr. Partida, and Mr. Casas were lying 

about not having any cocaine when the CI approached them. They would 

simply have no reason to lie. (Admittedly in some circumstances a drug 

dealer might lie about having drugs available for sale if the dealer fears he is 

being set up either by a police agent or for a robbery, but in this case if any 

of these individuals had feared a trap involving the CI it is very unlikely they 

would have willingly continued to stay with the CI through the entire chain 

of events. As such based on their continued interaction with the CI it is 

reasonable to infer they believed him to be an authentic customer and were 

being truthful with him about their not having any drugs themselves.) 

 It likewise does not matter if Mr. Casas lied about how he obtained the 

drugs once he went inside Appellee’s residence. Even if Mr. Casas stole the 

cocaine once inside Appellee’s residence rather than purchased it, that would 

still mean there was cocaine inside that residence at the time that Mr. Casas 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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entered the residence. And as already discussed, if there was cocaine inside 

the residence then that information when taken in conjunction with the rest 

of the affidavit (which included the reports that the Appellee was engaged in 

drug trafficking), fully supports the issuance of a search warrant for that 

residence. 

 Nor does it matter that the CI was not the one who actually purchased 

the drugs inside the residence. Mr. Casas told the CI he did not have any 

cocaine available for sale. [RR-I-9-10]. Mr. Casas then took the CI to 

Appellee’s residence. [RR-I-10]. Mr. Casas then went into the residence 

and came out with cocaine. Id. Mr. Casas then sold the cocaine to the CI. 

[RR-I-11]. The only logical conclusion from this chain of events is that Mr. 

Casas obtained the cocaine he sold to the Appellee from inside the residence. 

And the CI witnessed each of these steps. Whether the CI saw the actual 

purchase inside the residence or not therefore simply does not matter. The 

circumstantial evidence based on what the CI did witness with Mr. Casas

(and what the police could also observe/hear) is more than enough to support 

a reasonable inference that the cocaine Mr. Casas sold to the CI was 

obtained from within Appellee’s residence. Indeed it is difficult to see how 

any other conclusion could actually be reached. Therefore it is not necessary 

for the CI to have witnessed the actual sale of drugs inside the residence. 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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His being able to establish that drugs were being kept inside the residence at 

the time when his group arrived there, is by itself enough to establish the 

requisite probable cause. 

 Therefore even if we assume in arguendo that Franks does apply to 

omissions from search warrant affidavits, and we further assume that the 

Appellee’s proposed Franks approach where omitted material is read back 

into the affidavit to see if it can still establish probable cause once the 

omitted material included is the correct way to conduct a Franks 

examination over omitted material, there is still no justification for 

suppression in this case because the inclusion of the omitted material at issue 

here does not diminish the justification for a finding of probable cause. The 

omitted material still strongly supports a finding that there was cocaine 

inside Appellee’s residence at the time that the CI traveled to the location, 

and that evidence in conjunction with the other evidence in the affidavit 

establishes probable cause to believe there was additional contraband inside 

that residence. As such even under Appellee’s own favored approach, the 

trial court erred in granting the motion to suppress, and that ruling should be 

reversed. 
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

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PRAYER

WHEREFORE, PREMISES CONSIDERED, the State prays that this 

Honorable Court reverse the judgment of the trial court.

.

Respectfully submitted,

STEPHEN B. TYLER

CRIMINAL DISTRICT ATTORNEY

/s/ Brendan W. Guy

Brendan W. Guy 

Assistant Criminal District Attorney

SBN 24034895

205 North Bridge Street, Suite 301

Victoria, Texas 77902

E-mail: bguy@vctx.org

Telephone: (361) 575-0468 

 Facsimile: (361) 576-4139

 

 ATTORNEYS FOR THE APPELLANT,

THE STATE OF TEXAS
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

12

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I, 

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County, 

Texas, certify that the number of words in Appellant’s Brief submitted on 

April 14, 2015, excluding those matters listed in Rule 9.4(i)(3) is 2,232.

/s/ Brendan W. Guy

Brendan W. Guy

Assistant Criminal District Attorney

SBN 24034895

205 North Bridge Street, Suite 301

Victoria, Texas 77902

E-mail: bguy@vctx.org

Telephone: (361) 575-0468 

 Facsimile: (361) 576-4139
Reply Brief of Appellant

Victoria County Criminal District Attorney

No. 13-14-00588-CR

13

CERTIFICATE OF SERVICE

I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria 

County, Texas, certify that a copy of the foregoing brief has been served on 

Stephen D. Jackson and Paul Morrison, 215 Simonton, Conroe, Texas 

77301, Attorneys for the Appellee, Christopher Alexson Pappillion, by 

depositing same in the United States Mail, postage prepaid on the day of April 

14, 2015.

/s/ Brendan W. Guy 

Brendan W. Guy

Assistant Criminal District Attorney

SBN 24034895

205 North Bridge Street, Suite 301

Victoria, Texas 77902

E-mail: bguy@vctx.org

Telephone: (361) 575-0468 

 Facsimile: (361) 576-4139