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 377 th District Court Victoria County, Texas Cause Numb er 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.o rg (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 APPEALS CORPUS CHRISTI, TEXAS 4/14/2015 9:48:05 AM DORIAN RAMIREZ

CLERKReply Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR ii IDENTITY OF PARTIES AND COUNSEL

Pursuant to T EX

. R. A PP

. P

. 38.1(a) (2003), the parties to the suit are as follows:

APPELLANT The State of Texas

APPELLEE Christopher A lexson Pappillion

TRIAL JUDGE The Honorable Robert Cheshire 377 th District Court Victoria, Texas

TRIAL PROSECUTOR Edward Paul Wilkinson State Bar No. 24052674 Assis tant Criminal Distric t Attorney 205 N. Bridge St. Ste 301 Victoria , Texas 77901

- 6576

TRIAL DEFENSE ATTORNEY Brent Andrew Dornburg State Bar No. 24003930 12 0 N. Main Street Victoria , Texas 779 01

APPELLATE STATE’S Brendan Wyatt Guy ATTORNEY Stat e Bar No. 240 34895 Assistant Criminal District Attorney 205 N. Bridge St. Ste 301 Victoria , Texas 77901

- 6576

APPELLATE DEFENSE Stephen D. Jackson ATTORN EYS Law Offices of Stephen D. Jackson & Associates State Bar No. 00784324 215 Simon ton Conroe, Texas 77301Reply Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR iii Paul Morrison Law Offices of Stephen D. Jackson & Associates State Bar No. 24079028 215 Simonton Conroe, Texas 77301Reply Brief of Appellant Victoria County Criminal District Attorney No. 13

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- 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

................................ ............................. 13Reply Brief of Appellant Victoria County Criminal District Attorney No. 13

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- 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 [14 th 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 5 5 (Tex. Crim. App. 2007)

............... 2

- 3

Texas Rules

TEX. R. APP. 9.4

................................ ................................ ..................... 12

TEX. R. APP. 38

. 1

................................ ................................ ..................... iiReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 1 NO. 13

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IN THE COURT OF APPEALS FOR THE THIRTEEN DISTRICT OF TEXAS AT CORPUS CHRISTI
THE STATE OF TEXAS..................................................Appelant

v.

CHRISTOPHER A LEXSON PAPPILLION,....... .....................Appellee

* * * * *

APPELLANT’S REPLY BRIEF

* * * * *

TO THE HONOR ABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS , by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appell ant in the above nu mbered
and entitled cause, and files this the Appell ant ’s Reply B rief showing:

S UMMARY OF THE REPLY

E ven 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 evaluatin g 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. T he omitted mater ial at issue in this case doesReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 2 not diminish the probable cause that was already established by the search

warrant affida vit for this case. The omitted material still strongly supports a
finding that cocaine was obtained from inside Appellee’s residence, a nd 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 supporte d 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

.
T he 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 i s 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 cocaineReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 3 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 suppo sed 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 t he 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 [14 th Dist.] 1988, no pet). Th at 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 C riminal Appeals was going to extend Franks to apply to omissions then that is how it would structure the test. Rentaria v.Reply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 4 State, 206 S.W. 3d 689, 704 (Tex. Crim. App. 2006). ( Rentaria was a pre

Rodriguez 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 inc luded.) 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 ma terial 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 t here 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

C onfidential Informant (hereafter C I ) did not actually parti cipate 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

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

about hi s truthfulness or veracity; and 6) that the CI had no informationReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 5 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 af fidavit 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

ab out 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 aff idavit still easily establishes that narcotics were present at

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

T he record shows that the CI attempted to p urchase 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 backReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 6 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 wa s present in Appellee’s

residence at the time the CI travelled there

. There is j ust no othe r 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 c ocaine, then that certainly
supports a reasonable inference the individual got the coc aine 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 pol ice
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 moreReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 7 drugs inside the buildi ng, 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 ev idence 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(fi nding 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

credi bility 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 theReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 8 police, their credibility is not really at issue in t he 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 c redibility 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

abo ut not having any cocaine when the CI approached them. T hey would
simply have no reason to lie. ( Admittedly i n some circumstances a drug
dealer might lie about having drugs available for sale if t he dealer fears he is
being set up either by a police agent or for a robbery, but in this case if any

of these indi viduals 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. )

I t likewise does not matter if Mr. Casas lied about how he obtained the
drugs once he went inside Appellee’ s residence. Even if Mr. Casa s stole the

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

still mean there was cocaine inside that residence at the time that Mr. CasasReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 9 entered the residence

. And as already discussed, i f there was cocaine inside

the reside nce 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 support s the issuance of a search warr ant for that

residence.

Nor does it matter that the CI was not the one who actually purchase d
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. Ca sas 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 r esidence.
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 cou ld also observe /hear ) is more than enough to support

a reasonable infer ence 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. Therefo re it is not necessary

for the CI to have witnessed the actual sale of drugs inside the residence.Reply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 10 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

r equisite 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 t he 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 justificati on for
suppression in this case because t he inclusion of the omitted m aterial 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 locat ion,
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 granti ng the motion to suppress, and that ruling should be

reversed.Reply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 11 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court reverse the judgment of the trial court

.

. Respectfully submitted,

STEPHEN B. TYLER CR IMINAL 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 APPELL ANT , THE STATE OF TEXA SReply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- 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 Appell ant ’s Brief submitted on
April 1 4 , 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 77 902 E

- mail: bguy@vctx.org Telephone: (361) 575

- 0468 Facsimile: (361) 576

- 4139Reply Brief of Appell ant Victoria County Criminal District Attorney No. 13

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- CR 13 CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy , Assistant Criminal District At torney, 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 Appell ee , Christopher Alexson Pappillion, by
depositing same in the Uni ted States Mail, postage prepaid on the day of April

1 4 , 201 5

.

/s/ Brendan W. Guy Brendan W. Guy Assistant C riminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 E

- mail: bguy@vctx.org Telephone: (361) 575

- 0468 Facs imile: (361) 576

- 4139