Opinion issued April 14, 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00607
- CR

——————————— LATHARIAN DEVANTE MERRITT , A ppella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the Crim in al Dist rict C our t No. 2

Tarr ant County, Texas 1 Trial Court Ca se No. 1465902D

1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred t h is appeal from the Co ur t of Appeals for the Second District of Texas to this Court. See Misc. Docket No. 18

- 90 83 (Tex. June 19 , 2018) ; see also T EX
. G OV ’ T C ODE § 73.001 (authorizing transfer of cases). We are unaware of any conflict between the precedent o f the Court of Appeal s for the Second Di strict and that of this Court on any relevant issue. See T EX
. R. A PP
. P. 41.3.2 MEMORANDUM OPINION A jury convicted appella n t Latha rian Devante Merritt of capital murder , and
the trial court sent e nced him to life in prison with out the possibility of parole. See
T E X
. P EN AL C ODE § 19.03 (capital murder) ; id. § 12.31 (a)(2) ( mandating puni shment of imprisonment for life without par ole when State does not seek death penalty and offense committed when defendant was 18 y e ar s of age or older )

. He r aises two issues on appeal. First, he challeng es the trial court ’ s denial of his motion to suppress statements made after his arrest because he contends that his arrest warrant was not supported by probable cause

. Second , he cont e nds that a statement in the jury charge

was an erroneous defin ition of r easonable doubt. We affirm.
Bac kground Zachary Beloate shared a house with E tha n Walker and another roommate. Beloate was dating a teenage girl , M.S. , who believed that Be l oate and Walker had been selling small amounts of dr ugs and marijuan a. M.S. and se veral friends decided to rob them

. M.S. told one friend , Megan Holt , that a gun would be needed for the robbery. Holt recruited T.M., a te e nage boy , to commit the robbery, and he , in turn,

rec ruite d three other young men : Merritt, Shawn Robin son, and J.B. On the night of the robbery, M.S., Hol t , and Ariana Bharrat went to Beloate ’ s house at 1500 Aspen Court under th e pretense of spending tim e togethe r. The women3

unlocked exterior doors, and t he four men let themselves in. When one of the men pointed a gun a t Beloate, M .S. , Holt, and th e other young woman left the room unimpeded. Shortly after, they heard gunshots and fled the house, leaving t o gether in a white vehicle. Beloate and W a lker were both shot during the robbery, and Walker later died from his injur ies.
Th e first call for emergency services was ma de at 10:42 p.m. , and a witness informed responding law enforcement officers tha t she s aw three young women ru n from 1500 Aspe n C our t an d drive away in a white sp orts

- utility vehicle

. D etective s P. Knotts and S. Peacock investigated the homic ide. Based on an affidavit from Det. Knotts , a magistrate issued a warrant for Merrit t ’ s arre s t

. The affidavit stated facts learned during an initial inve stigation

. W hile still in the hospital, Beloate told Det. Peacock that M. S. had been at the ho use but left after the shooting. Beloate gave Det. Peacock M.S. ’ s address

. Detectives Knotts and Pe acock w ent to M.S. ’ s house

. While there, they spoke
to M.S. ’s brother, V.S., who said that M.S. came home in a whi te ve hicle bet ween 11:00 and 11:30 p. m. V.S. informed them that M.S. had been with Hol t and Bharrat , and when she came home, she was nervous , and she told him th at she had “ hit a lick ” and it “ went bad. ” V.S. also said that M.S

. ’ s friend had been shot.
M .S. ’ s mother al lowed her to be interviewed at police headquarters

. Detectives Knotts and Peacock drove M.S. , and on t h e way, she directed them to4

1500 Aspen Court

. At police headquarters , M.S. said that sh e, Ho lt, and Bharrat were in Beloate ’ s room at 1500 Aspen Court ju st before the shooting. Wh ile ther e , M. S. saw a text message on Bharrat ’ s phone that s a id “ hit a li ck ” and “ is it a go

. ” In the affi dav it, Knotts averred that “ hit a lick ” means to commit a crime s uch as theft, burglary, or robbery. Although M.S. initially told the de tectives that she left the
house during the robbery, went to a nearby fast

- f o od restaurant, and used a rideshare service to get home , she “ later said she had li ed about how she got home

. ” M.S. later said that she went home with Hol t and Bharrat

. After Detective Knotts told M.S. that Wal k er had died , she agreed to help identify the other suspects. M.S. sent several emails and photographs identifying three of the four male suspects by the ir nicknames or street names. The following day , M.S. was ar rested for capital murder. Later, she gave another statement to police, and she provided a physical d escription of Merritt, whom she knew as

“ La r r y. ” S gt. T. Hewitt interviewed Holt in connection with the murder

. Holt knew

“ Larry ” socially , and she identif ied him as the man in the p hotograph provided by
M.S. Based on the affidavit, Tarra nt Cou nty Dis trict Court Jud ge Gallagher signed the warrant authorizing Merritt ’ s arre st. At that time, Merritt had been identified only as “ Larry ” and by his photo g raph and physical description , both of which were included in the arrest w arrant.5

Merrit t was arre sted on capital m urder ch arges. He gave two statements to police, admitting that he had shot Walker. Before trial, Merritt moved to suppress statements he m a de after his arrest on th e grounds that they were tainted by the illegality of his ar rest. In particular, h e maintained that the affidavit in support of the
arrest warrant did not establish probable caus e. The trial court held a n eviden tiary hearing and denied the motion to suppress. The court ’ s charge to the jury included the foll owing statement about the
State ’ s b urden of proof: “ It is not required that the Prosecution prove guilt be yond all possible doubt; it is required that the Pro secution ’ s proof excludes all ‘ reasonable
doubt ’ concerning the Defendant ’ s gui lt. ” At the charge conference, Merritt asked the court to remove th at s tatement from the court ’ s charge, acknow ledging , however, that the Fort Worth Court of Appeals had p revio u sly ruled that the language w as not

erro neous. The trial court denied the request to remo ve the language. The trial court found Merritt guilty of capital mu rder, and because the State had not sought the death penalty, the trial court s en tenced Merritt to life in prison wi thout the pos sibility of parole. Merritt appealed.6 Analysis On appeal , Merrit t challen ges the trial court ’ s rulin g on the motion to suppress
his statements due to a n allegedly illegal arres t warrant and the trial cour t ’ s instruction t o the jury that reasonable doubt i s not the same as all doubt.
I. Motion to suppress defendant ’ s statements In the trial court , Merritt moved to suppress statements that he made after his arrest on the grounds that the arrest was il legal ly “ c onducted pursuant to an arrest warrant and support ing affidavit that did not state sufficient facts that established probable cause for its issuance. ” In the pretrial hearing on the motion to suppress, Merritt argued that the “ arre st warrant affid a vit ” “ does not establish probable cause for his arrest. ” H e argued that M.S. was the only source of information connecting him to the crime , and becaus e she had lied to the investigating officer s , she was “ not a credible person. ” The State argued that the four

- corners rule 2 required the court to consider only inf

ormation found within the four corners of the affidavit and urged the court not to consider the pretrial testimony of Detec tive Knotts

. On appeal , Merritt makes a different argument. Rather than arguing that the facts recited in the affidavit were insuff ic ient to establish probable cause, on appeal
M erritt relies on Franks v. Delaware , 438 U.S. 154 (1978), to argue that the

2 S ee State v. Elrod , 538 S.W.3d 551, 556

– 57 (Tex. Crim. App. 2017) ( “ In det ermining whether a warrant sufficiently establishes proba ble cause, this Court i s bound by the four corners of the affidavit. ” ).7

affidavit ’ s omis sion of information about M.S. ’ s having lied rendered the se arch warrant invalid.

“ To preserve error for appellate r ev iew, the complaining party must make a specific objection and obtain a ruling on the objection. ” Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (on au t omatic appeal in capital murder case) ; see T EX
. R. A PP
. P. 33.1 (preservation of error). Th e objection must be timely, i .e., “ made at the earliest possible opportunity. ” Wilson , 71 S.W.3d at 349

. “ Finally, the point of error on appeal must comport with the o bjection made at trial. ” Id.
At the pre trial hearing, the State referred the t rial court t o two cases that originated from Tarrant County and held that the reviewing court is limited to the four corners of the affidavit to determine whether there was a s u bstantial basis for concluding tha t p robable cau se exists. Rodriguez v. State , 232 S.W.3d 5 5, 6 4 (Tex. Crim. App. 2007) ( “ We must defer to the magistrate ’ s finding of probable cause if the affidavit demonstrates a substantial basis for his conclusion. ”) ; s ee Montgomery
v. State , No. 0 2

- 03

- 425

- CR, 2005 WL 1048707, at * 2 (Tex. App.

— Fort Wort h Ma y 5, 2005, pet. ref ’ d) (mem. op. ; not desig n ated for publication)

. On appeal, Merritt relies on Detective Knotts ’ s pretrial hearing testimon y, which is outside the four corners of the affidavit , to argue that the arrest war r ant was inv alid. Because this ar gu ment was not rai sed in the trial court, it does not comport8

with the trial objection, and it is not preserved for our review. See Wilson , 71 S.W.3d
at 349

. Moreover, Merritt w ould not prevail on the merits of this issue

. Or dinarily,

we review a trial co ur t ’ s ruling on a motion to suppress under a bifurcated st andard of review, giving almost total deference to the facts found by the court and reviewing de novo its application of the law. See Amador v. State , 221 S.W.3d 666 , 6 73 (Tex. Crim. App. 2007). Whe n a motion to suppress i s based on a contention that a warrant was not supported by probable cause, the trial court i s “ bound by the four corners of the affidavit. ” State v. Elrod , 538 S.W.3d 551, 556

– 57 (Tex. Crim. App. 2017)

. In that situation , w e i nterp r et the aff i davit in a common - sense an d reaso n able

manner , and we deter mine whether it states sufficient fact s “ t o validate issuance of a proper warrant. ” Lagron e v. State , 742 S.W. 2d 659, 661 (Tex. Crim. App. 1987);

see Rodriguez v. State , 232 S.W .3d 5 5, 6 4 (Tex. Crim. App. 2007) ; White mon v. State , 460 S.W.3d 170, 174 (Tex. App.

— Fort Worth 2015, pet. ref ’ d ). We “ focus on the combined logical force of facts ” that are in the affidavit. Rodriguez , 232 S .W.3d
at 6 2. “ I t is not necessary to delve into all o f th e facts that were omitted by the affiant, facts that could have been includ ed in the affidavit, or contrary inferences that could have been made by the magistrate. ” Id

. at 64. We will uphold a magis t rate ’ s finding of probable cause if the affidavi t dem onst ra tes a substantial basis for this conc lusion.
See i d. ; White mon , 460 S.W.3d at 174

.9

R elying on Franks v. Delaware , 438 U.S. 154 (1978), Merritt contends that the affidavit was misle adi ng because it omi t ted the mate rial fact that M.S. had been
unt ruthf ul i n her police interviews. Merritt asserts that if the affidavit had stated that M.S. had been untruthful, then the magistrate would have concluded that she was not credible and disregarded the informatio n she provided connecting Merritt to the
crim e. In Fra nks , the United S tates Supreme Court held that when a governmental affiant knowingly, intentionally, or with reckless disregard for the truth include s a false statement in the warrant affid a vit, and the remainder of the affidavit ’s content is insu f fici ent to establish probable cause, the warrant is inval id u nder the Fourth Amendment, and evidence obtained as a consequence of th e warrant should be

exc luded. 438 U.S. 155

– 56. “ [W] here the defend a nt makes a substantial preliminary showing that a false st ate ment knowingly and in tentio nally, or with reckless disregard for the truth, was included by the affi ant in the warrant affidavit, and if the alleged ly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a he ari ng b e h eld at the defendant ’s request ” Id. This is an exception to the four

- corners rule. See id. Because Merritt relies on Franks , we construe his argument to be that the re were material omissions from the affidavit that were made inten tionally, know ingly , or with reckless disregard for the truth. See Darby v. State , 145 S.W.3d 714, 7 22 (Tex. App.

— Fort Worth 2004, p et. ref ’ d)10

(construing argument about omission from affidavit i n light of defendant ’s re liance

on Franks ). Although the Court of Criminal Appea ls h as not extended Franks to allegations of material omissions, several T e xas intermedi ate appe llate courts

— including Houston ’s Fir st Court of Appeals and Fort Worth ’s Second Court of Appeals

—

have done so. See Massey v. State , 933 S .W.2d 141, 146 ( Te x. Cr im. App. 1996) ( court has not applied Franks analysis to allegations of int entional and material omissions ) (inter nal citations omitted); Darby v. State , 145 S.W.3d 714,
721

– 22 (Tex. App.

— Fort Worth 2004, p et. ref ’ d) ( expressly agreeing with Fifth Cir cuit and intermediate Texas appe llate courts ’ ap plication of Franks analys i s to material omission s ) ; Blake v. State , 125 S.W.3d 717, 724 (Tex. App.

— Houston [1st Dist.] 2003, no pet.) (same). In th is case the record does not reflect , by a preponderance of the e vide nce , that Detective Knotts intentionally or k nowingly , with reckless disregard for the truth , made any misstatements or omissions in the affi davit that wo uld affect the finding of pro bable cause

. The affidavit describes the robbery with some fa cts set f ort h in the affidavit corro b o r ating others. For example, V .S. said M. S. arrived home in a w hite vehi cle and neighbors reported that they sa w the young women leaving
150 Aspen Court in a white vehicle. M.S. told Detective Knotts that she was part of
t he group th at planned the robber y, that s he participated and the role she played, and11

th at she k new some but not all the men who participated. She also provided photographs, nicknames, and descriptions of three of the four men who partic ipated , includ in g Merritt. H ol t corrobo rated M.S. ’s st a tements about Merritt ’s identity. The affidavit itself s hows that M.S. planned and p articipated in the robbery and that she had personal knowledge that Merritt also participated.
The arres t warrant affidavit d escribed one lie to ld by M.S. : “ [M.S.] said that she ran out of the house during the robbery and went to a nearby McDonal d ’s where
she met a friend who call ed her an Uber. [M

. S.] later said she ha d lied about how she got home and told me she went home with [Holt] and [Bharra t]. ” M.S. ’s
untruthfulness a bout ho w she got home doe s not impact the probable cause analysis because how she got home that night is not material to whether she had seen and could identify the others who participated in the crime.
Merri tt relies on tes t im ony from Detective Knotts in the pre trial hearing in which he acknow ledged that M.S. had lied to him : Q

. And she [M.S.] had lied to you repea tedly, correct? A

. She did lie , yes, sir. Q

. Okay. You didn ’t put in your a ffidavit that when yo u ’d interviewed [ M. S.] a couple of times or

— I don ’t know how ma ny time s, but however many times you did , that she lied to you those time s, d id you? A

. In the aff

idavit? Q. Right.12

A. No, sir. The record does not indicate anything else that M.S. lied about or whether it

was m ateria l to a determination of probable cause. There fore, ev en if we were to review this issue under a Franks analysis, we would conclude that Merritt did not carry his burde n to prove by a preponderance of the e viden ce that there were ma terial omissions fr om the affidavit that were made intentionally , knowingly, o r with reckless disr egard for the t ruth. We overrule Merritt ’ s first issue.
II. Motion to suppress defendant ’ s statements In his second issue, Merritt argues th at the trial court er red by providing a partia l definition of reasonable d oubt in the court ’ s charge to the jury. Specifically, Merritt challenges the following instruction:

It is not required that the P r osecution prove guilt beyond all possible doubt; it is required that the P rosec ution ’ s proof exclu d es all

“ r easonable dou bt ” conc erning the D efendant ’ s guilt.
I n the event you have a reasonable doubt as to the Defendant ’ s guilt a fter considering all the e vidence before you, and these instructions, you will acquit him and say b y your verdict “ N ot G uilt y . ” Merritt asserts that the court s of appeals are split on whether these instructions are erroneous, yet he concedes that both the First and the S econd Cou rts of Appeal s have held that i t is not error to incl ude that language in a jury charge. S ee Burrows
v. State , 492 S.W.3d 398, 408 (Tex. App.

— Houston [1st Dist.] 2016, pet. ref ’ d);13

Frank v. State , 183 S.W.3d 63, 79 (Tex. App.

— Fort Worth 2005, pet. re f ’ d). In additi on, t he Court of C riminal Appe als has held t ha t inclusion of that language in a jury charge is proper. See Mays v. State , 318 S.W.3d 368, 389 (Tex. Crim. App. 2010) ; Woods v. State , 152 S.W.3d 105, 115 (Tex. Cr im. App. 2004)

. We overrule Merritt ’ s second issue. Conclusion We affirm the judgment of the tria l court.

Peter Kelly Justice Panel consists of Chief Justice Radack and J ustices Lloyd and Kelly. Do not publish. T EX
. R. A PP
. P. 47.2(b).