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## NO. 12

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IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CLINTON DEWAYNE SHELTON , § APPEAL FROM THE 392ND APPELLANT

V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS, APPELLEE § HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION Clinton Dewayne Shelton appeals his conviction for burglary of a habitation, for which he was sentenced to imprisonment for twenty years. In one issue, Appellant argues that the trial
court i mproperly denied his motion to suppress. We affirm.

B ACKGROUND Appellant was charged by indictment with burglary of a habitation and pleaded “not guilty.” A jury found Appellant “guilty” as charged. The State had previously given notice of its
intent to introduce evidence that Appellant had committed the extraneous offense of burglary of a habitation against another individual. Before the commencement of his trial on punishment, Appellant objected that the affidavit for the arrest warrant for Appellan t that resulted in officers’ observing items in plain view related to this extraneous burglary did not state probable cause. A hearing was held outside the presence of the jury on the sufficiency of the affidavit supporting the arrest warrant. Following the hearing, the trial court overruled Appellant’s objection and admitted into evidence the items seized relating to the extraneous burglary. At Appellant’s trial on punishment, the victim of the extraneous burglary testified that the items seized at Ap pellant’s residence belonged to her. Ultimately, the jury assessed Appellant’s2

punishment at imprisonment for twenty years. The trial court sentenced Appellant accordingly, and this appeal followed.

M OTION TO S UPPRESS E VIDENCE In his sole issue, Appell ant argues that the trial court erred in denying his motion to suppress because the affidavit underlying the arrest warrant is insufficient to demonstrate probable cause. This affidavit is included, in pertinent part, as an appendix to this opinion.
Standard of Review We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion.
Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); State v. Elrod , 395 S.W.3d 869, 876 (Tex. App.

– Austin 2013, no pet.). A trial court ab uses its discretion when its ruling is arbitrary or
unreasonable. State v. Mechler , 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The trial court's ruling on the motion to suppress will be affirmed if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. Young v. State , 283 S.W.3d 854, 873 (Tex. Crim. App. 2009). In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard
of review. Wilson v. State , 311 S.W.3d 452, 457

– 58 ( Tex. Crim. App. 2010); Carmouche v.
State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give almost total deference to the trial court’s determination of historical facts, we conduct a de novo review of its application of
the law to those facts. See Wilson , 311 S.W.3d at 458; Carmouche , 10 S.W.3d at 327. We afford almost total deference to the trial court’s rulings on mixed questions of law and fact when the resolution of those questions depends on an evaluation of credibility and demeanor. Se e State v. Johnston , 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo mixed questions of law and fact that do not depend on an evaluation of credibility and demeanor. Johnston , 336 S .W.3d at 657; Guzman , 955 S.W.2d at 89. All purely legal questions are reviewed de novo. Johnston , 336 S.W.3d at 657;
Kothe v. State , 152 S.W.3d 54, 62

– 63 (Tex. Crim. App. 2004). At the suppression hearing, the trial court is the sole trier of fact and exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See St. George v. State
, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman , 955 S .W.2d at 89. Unless the trial court abuses its discretion by making a finding unsupported by the record, we defer to the trial court's3

findings of fact and will not disturb them on appeal. Johnston , 336 S.W.3d at 657; Guzman , 955 S.W.2d at 89; Elrod , 395 S.W.3d at 876

– 77. When, as here, the trial court makes no findings of fact and conclusions of law, and none are requested, we review the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findin gs of fact that support its ruling so long as those findings are supported by the record. Wiede v. State , 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Carmouche , 10 S.W.3d at 328.
Arrest Warrant Affidavit When a defendant argues that a search should have bee n suppressed because the magistrate had no probable cause to issue a warrant, we do not review the magistrate's determination of probable cause de novo, but instead apply a “great deference” standard of review. Swearingen v.
State , 143 S.W.3d 808, 810

– 11 (Tex. Crim. App. 2004); Jones v. State , 338 S.W.3d 725, 732

– 33 (Tex. App.

– Houston [1st Dist.] 2011), aff'd , 364 S.W.3d 854 (Tex. Crim. App. 2012), cert. denied
, 133 S. Ct. 370, 184 L. Ed. 2d 160 (2012). The Fourth Amendment to the United States Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oat h or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. C ONST

. Amend. IV. The affidavit supporting an arrest warrant is called a complaint. See
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. art. 15.04 (West 200 5); Weems v. State
, 167 S.W.3d 350, 355 (Tex. App.

– Houston [14th Dist.] 2005, pet. ref’d). A complaint in support of an arrest warrant must (1) state the name of the accused, if known, and if not known, must give some reasonably definite description of hi m; (2) show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense; (3) state the time and place of the commis sion of the offense, as definitely as can be done by the affiant; and (4) be signed by the affiant. T EX

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. art. 15.05 (West 2005); Weems , 167 S.W.3d at 355

– 56. Affidavits filed for issuance of arrest warrants must provide the magistra te with sufficient information to support an independent judgment that probable cause exists for the warrant. McFarland v. State , 928 S.W.2d 482, 509 (Tex. Crim. App. 1996). In determining the sufficiency of an affidavit supporting an arrest warrant, a r eviewing court is limited to the “four4

corners” of the affidavit. Id. at 510. If the state intends to justify an arrest on the basis of a warrant, it is incumbent on the state to produce the warrant and its supporting affidavit for inspection by the magi strate. See Etheridge v. State , 903 S.W.2d 1, 19 (Tex. Crim. App. 1994). This requirement is imposed so that the magistrate may inspect the documents and determine whether probable cause existed and ensure that the arrestee's rights have been fully prote cted. Id. (quoting Garrett v. State , 791 S.W.2d 137, 140 (Tex. Crim. App. 1990)). In so doing, the magistrate who reviews the affidavit may draw inferences from the facts contained in it. Elardo
v. State , 163 S.W.3d 760, 765 (Tex. App.

– Texarkana 2005, p et. ref’d). Great deference should be given to a magistrate’s determination of probable cause, and warrants should not thereafter be invalidated through a “hypertechnical” interpretation of their supporting affidavits. Id. Rather,

w e interpret affidavit s for arrest or search warrants in a common sense and realistic manner. Id

. Causey’s Affidavit

- Double Hearsay Appellant does not argue that the facts set forth in Officer Dennis Causey’s affidavit do not, in an d of themselves, amount to a showing of probable cause. Rather, Appellant contends that the affidavit is defective because Causey does not state how he received the information from Officer C. Speak and there is no indication concerning how Speak received the information from the victim, Grace Kelly. Based on our reading of the affidavit in a common sense manner, we conclude that the magistrate reasonably could have determined that Kelly related the information directly to Speak and Speak, in turn, related the information directly to Causey. In other words, Causey’s affidavit testimony relies on “double hearsay.” Double hearsay may be used to show probable cause if the underlying circumstances indicate a substantial basis for crediting each level
of hears ay. Allen v. State , 899 S.W.2d 296, 299 (1995); see also State v. Duarte , 389 S.W.3d 349, 355 (Tex. Crim. App 2012). We first address Speak’s hearsay statement to Causey. When one officer relies solely on a request to arrest made by a fellow officer, probable cause must be based on the requesting officer’s knowledge. See Farmah v. State , 883 S.W.2d 674, 678 (Tex. Crim. App. 1994) (applied to warrantless arrest); Fearance v. State , 771 S.W.2d 486, 509 (Tex. Crim. App. 1988) ; see also Colston v. State
, 511 S.W.2d 10, 12 (Tex. Crim. App. 1974) (standards applicable to factual basis of officer’s probable cause assessment at time of challenged arrest and search are at least as stringent as standards applied with respect to magistrate’s assessment of probabl e cause). In the5

instant case, Causey’s affidavit is based on information he received from Speak. Accordingly, we look to Speak’s knowledge to determine whether there was a showing of probable cause. Speak received the information from Kelly. Kelly s tated that a man broke into her home. She described the man, and identified him as “Clint,” a person whom she previously had seen many times and who lived near her parents. Kelly even addressed the perpetrator as Clint when he was standing, uninvited, in her home. Kelly looked in her vehicle and discovered that $40.00 in cash and the keys to her workplace were missing. As a citizen

- informer, Kelly is presumed to speak with the voice of honesty and accuracy. See Duarte , 389 S.W.3d at 356; see also Illin ois v.
Gates , 462 U.S. 213, 233

– 34 , 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983) (“[I]f an unquestionably honest citizen comes forward with a report of criminal activity

–– which if fabricated would subject him to criminal liability

–– we have found rigorous scrutiny of the basis of his knowledge unnecessary.”). There is nothing within the four corners of Causey’s affidavit that could have caused the magistrate to question the veracity of Kelly’s statement to Speak. Thus, we conclude that the underlying cir cumstances indicate a substantial basis for crediting Kelly’s hearsay statements to Speak. Accordingly, we hold that the trial court did not abuse its discretion in overruling Appellant’s motion to suppress. Appellant’s sole issue is overruled.

D ISPOSIT ION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



### S AM 

### G RIFFITH Justice
Opinion delivered on October 23 , 2013. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)6



# APPENDIX789 

## COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 23 , 2013

NO. 12

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- 00070

- CR

CLINTON DEWAYNE SHELTON ,

Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 392nd Judicial District Court
of Henderson County, Texas. (Tr.Ct.No. B

- 19,653 )

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJU DGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court below
for observance.
Sam Griffith , Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.