Affirmed and Memorandum Opinion filed June 29 , 2023.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00432

- CR

JONATHAN ANTHONY EDWARDS , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 180th District Court Harris County, Texas Trial Cou rt C ause No. 1656534

MEMORANDUM OPINION A jury f ound appellant guilty of aggravated sexual assault , and the trial court assessed an agreed punishment of thirty

- five years ’ confinement. In a single issue, appellant contends that the trial court erred by den ying his motion to suppress under Franks v. Delaware , 438 U.S. 154 (1978) , becau se of material omissions from a search warrant affidavit . We affirm.2 I. Legal Principles The issuance of a search warrant depends on the existence of probable cause.
Diaz v. Sta t e , 632 S.W.3d 889, 892 (Tex. Crim. App. 2021) . Pro bable cause exists if there is a fair proba bility that evidence of a crime will be found at a specified location. Id. A “ fair probability ” is less than a preponderance of the evidence ; it need not p ersu a de a reasonable person “ more likely than not. ” See Rodriguez v.
S t ate , 232 S.W.3d 55, 60 & n.21 (Tex. Crim. App. 20 07). The test is whether a reasonable reading of an affidavit supporting an application for a search warrant provides a substantial ba sis f or the ma gistrate ’ s conclusion that probable cause exist s

. See Diaz , 632 S.W.3d at 892. This is a flexible and nondemanding standard. Rodriguez , 232 S.W.3d at 60.

A defendant ma y challenge the truth fulness of factual statements made in a search war rant affidavit. Diaz , 6 32 S.W.3d at 892 (citing Franks , 438 U.S. at 171

– 72). The defendant mu st show by a preponderance of th e evidence that a material misstatement was made intent ionally , k nowingly , or with reckless disregard for the truth. Id. This c ourt and the Court of Criminal Appeals have applied th ese principles to omissions from search warrant affidavit s

. See Islas v. State , 562 S.W.3d 191, 19 7 (Tex. App.

— Houston [14th Dist.] 2018, pet. ref ’ d) ; see also
Diaz , 632 S.W.3d at 892 ( “ We have assumed tha t Franks a pplies to material omissions, but we have not decided the issue. ” ).

If the defendant carries their burden to show material omissions made at least with reckless disregard for the tr uth, then the true statement is added to the affidavit, and a rev iewing court must determine whether probable cause for the warrant still exists. See Islas , 562 S.W.3d at 19 7

. In making this determination, we revie w whether probable cause exists as the magistrate would, looking at the totality of the circu mstances

. S ee id. at 198 ; see also Diaz , 632 S.W.3d at 8 92. We3 interpret the affidavit in a “ commonsensical and realistic manner, drawing reasonable inferences from the information. ” Diaz , 632 S.W.3d at 892 (quoting
State v. Le , 463 S.W.3d 872, 877 (Tex. Crim. App. 2015)). The focus is on the combined logical force of the facts i n the affidavit. Id.

II. Background The State applied for and was granted a warrant to search and seize appellant ’ s saliva via a buccal swab. Appellant filed a written motion to suppress evi dence obtained from this search and seizure , and th e court held a n evidentiar y hearing. Four paragraphs of the s earch warrant affidavit are rep roduced with minor redact ions in Appendix A to this memorandum opinion

. The first two paragraphs a re based on i nfo rmation that the affiant, a Houston Police Department detective, l earned from other officers ’ reports . The third paragraph describe s a follow

- up investigation in which the detective m et with t he complainant. The fourth paragraph is based on inform atio n from a sexual assault nurse examiner ’ s (SANE) report

. To summarize the affidavit , the dete ctive testified that the complainant and appellant were in a non
- sexual d ating relationship when appellant became angry with the complainant on the eve ning of N ovem ber 27, 2019. Appellant struck the complainant in the head with a pistol and slept with her that night. On the following morning, app ellant again became angry, slapped her, forced her legs apart, and put his penis into her vagina while the p istol was nea rby. He did this without her consent while she was in fear of injury or death. When appellant left the apartment, the complainant called police. Officers arrived and found appe llant driving his car towards the exit of the apartment complex. They fo und a loaded pistol under his leg. The complainant went to a hos pital for a sexual assault4 examination. A sexual assault kit was submitted to the Houston For ensic Science Center for DNA an alysis. According to the affidavit, the complainant told the respo ndin g officers at the scene that appellant struck her in the head with the pistol so hard that her ears began to ring. She told the det ective during the follow

- up interview that appellant struck her with the pistol so hard that she blacked out.

At the hea ring , the trial court also admitted as exhibits seve ral of the detective ’ s police reports. The reports contain more detailed rep roductions of the compl ain ant ’ s statements to the SANE and to the detective during the follow

- up interview. A report ind icate s tha t the complainant told the SANE that when appellant hit her with the gun , she fell to the ground in pain.

T he court admitted as an exhibit a report from the Department of Public Safety, which the detect ive had searched before s u bmitting his search warr ant affidavit

. The report provides that the compl ainant had a record of nine arres ts with three “ convictions/adjudications ” for “ driving w/lic inv w/prev conv/ susp/w/o fin res , ” “ interfere w/public duties, ” and “ theft prop>=$50 < $500. ”

The dete ctive test ifie d at the hearin g that he was not aware that one of the officers who responded to the crime scene said , according to body

- wor n camera footage, that the complainant ’ s “ story doesn ’ t add up. ” The detective testified that he did not see any indi cation fro m th e other officers ’ reports that the co mplainant reported to them that she had passed out or blacked out. The trial court overruled the motion to suppress , and the DNA evidence was admitted before the jury.5 III. Arguments and Preservation of Error

O n appeal, appe llant generally complains about the detective omitting from the se arch warrant affidavit alleged “ inconsistencies ” from the complainant ’ s
statements , and appellant contends that the detective “ embellished” information provided to him from the complaina nt. Appel la nt appears to complain ab out several omissions from the affidavit that he never complained about to the trial court, either in his written motion or at the hearing.

0F 1 I t is difficult to determine from his brief which particular omissions he con tend s shou ld have been included in the affidavit. Nor does appellant explain in his brief how probable cause is lacking with any missing information added to the affidavit.

1F 2 As a prerequisite to presenting a complaint for appellate review, the record
must sho w that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought from the trial court with sufficie nt specificity to make the trial court aware of the complaint. See Tex. R. App. P. 3 3 .1. A F r ank s complaint must be preserved at trial , and the defendant must identify the false portions of the affidavit

. See Harri s v. State , 227 S.W.3d 83, 85

– 86 (Tex. Crim. App. 2007). A complaint on appeal must comport with the specific complaint tha t the d efendant timely lodge d in the trial court

. Bleimeyer v. S t ate , 616 S.W.3d 234, 250 (Tex. App.

— Houston [14th Dist.] 20 21, no pet.) ; see Pena v. S t ate , 2 85 S.W.3d 459, 464 (Tex. Crim. App. 2009).

1 For example, in his brief, appellant ref ers to the resp onding officers testifying that they did not observe visi ble injury to the complainant. Appellant r efer s to the complainant ’ s statement to the detective that the complainant did not see the gun until appellant hit her with it

. Appellant re fers to the complainant ’ s statement that she was dizzy and threw up in a toilet.

2 The S t ate contends that appellant waived any e rror due to inadequate briefing. See Cardenas v. State , 30 S.W.3d 384, 393 (Tex. Crim. App. 2000 ) (overruling inadequately brief ed issues). Assuming without deciding that appellant has not waived e rror due to in ade quate briefing, we will construe his bri ef l i berally and address this issue to the extent possible. See Tex. R. App. 38.9 (briefing rules to be construed liberally ).6 From reviewing the arguments presented in appellan t ’ s m otion, at the hearing, and in his brief on appeal, appellant has p reserved error regarding the following alleged material omissions from the detective ’ s search warrant affidavit: (1) the complainant did not tell the responding officers or the SANE on Nove m ber
28 that she had passed out ; (2) the complainant did not tell the SANE that appellant had the gun near him during the sexual assault; ( 3) one of the responding officers opi ned that the complainant ’ s story didn ’ t “ add up ” ; and (4) the complainant ’ s crim i nal hi story.

IV. Analysis Assuming without deciding that these alleged omissions were material and that the detective omitted them from the search warrant affidavi t at least with reckless disreg ard, we conclude that probable cause for the search and seizu re o f appel lant ’ s saliv a would still exist even if the omissions were added to the affidavit.

Th e search warrant affidavit recited the complain ant ’ s detailed statements in support of each eleme nt of aggravated sexual assault

. See Tex. Penal Co de § 22.02 1(a) ( 1)(A)( i). I n particular, the complainant repeated ly stated to different officers and the SANE that appellant threatened her with a pistol and forced his penis inside her vagina

. None of the omissions would have made a ny di fference to the probable ca use d etermi nation. See Gonzales v. State , 481 S.W.3d 300, 312 (Tex. App.

— San Antonio 2015, no pet.) ( reasoning that adding omitted information to affidavit

— that witness ’ s statement was hearsay fro m another officer

— “ would make no difference to the probable cau s e dete rm ination ” ) ; see also Renteria v. State , 206 S.W.3d 689, 703

– 04 (Tex. Crim. App. 2006) (holding that the magistrate would have had probable cause to issue a warrant e ven with the inclu sion of omitted information, e.g., that officer had already s earc h ed the vehicle7 that was the su bject of the warrant and found no evidence linking the vehicle with the crime )

. Even if the complainant failed to tell the r esponding officers or the SANE every fact ual detail of the assault that she recited for the detec tive several days later

— that is, whether she passed out and whether the gun was nearby

— such

a lleged “ inconsistencies ” would not undermine the probative va lue of the information provided in the affidavit fo r the magistrate ’ s determination on the existence o f pr o bable cause. Cf. Jarnagin v. S t ate , 392 S.W.3d 2 23, 228 (Tex. App.

— Amarillo 2012, no pet. ) ( affidavit was sufficient to support finding of probable caus e despite a d iscrepancy between the deputy ’ s affidavit and the complainant ’ s statements about date of a sexual assault). T he complai nant ’ s
statements were not , in fact, “ inconsistent ” as appellant characterizes them. For example, a ppellant di rects this court to no evide nce that the complainant told the responding officers or SANE that she did not pas s ou t , only that the officers and
SANE fai led to inclu de in their reports a statement by the complainant that she did
pass out

. Adding the complainant’s criminal record to the affidavit

— in particular, for

no offenses tending to show bias against appellan t or undermining her credibility regarding reports to police

— would not prevent the magistrate from finding her statements reliable and that there was a fair probability that evidence of a crime would be found from collecting appellant’s saliva. See Heitma n v. State , 789 S.W.2d 607, 611

– 12 (Tex. App.

— Dallas 1990, p et. denied) ( reasoning that even if infor mation omitted from search warrant about an informant ’ s “ extensive crimina l

recor d ” and his “ deal . . . to supply information about appellant in e xchange f or d i sm issal of four pending charges ” were added to the sear ch warrant, the affidavit would still be facially sufficient to give the ma gistrate probable cause to issue the8 warrant) ; see also Janecka v. State , 937 S.W.2d 456, 464 (Tex. Crim. App. 1996) (fa l se s t atement that unnamed informant had no criminal history

— despite conviction for driving while intoxicated and participation in the crime that was the sub ject of the search warrant

— was not material under Franks ). Appellant ’ s sole issue is overruled.

V. Con clus i on
The trial co urt did not err by denying ap pellant ’ s motion to suppress . The trial co urt ’ s judgment is affirmed.

/s/ K en Wi se J ustice

Panel con sists of Chief Ju stice C hristopher and Justices Wise and Has s an

. (Hassan, J., concurring without opinion). Do Not Publish

— Tex

. R. App. P. 47 .2( b)9 

### Appendix A: Partial Search Warrant Affidavit