NO. 06-14-00239-CR

____________________________________________________________

IN THE COURT OF APPEALS 

SIXTH DISTRICT 

AT TEXARKANA, TEXAS 

____________________________________________________________

MARK EUGENE ENGLE, APPELLANT 

V.

THE STATE OF TEXAS, APPELLEE 

____________________________________________________________

APPEAL IN CAUSE NUMBERS 29,110 

IN THE 354TH JUDICIAL DISTRICT COURT 

OF HUNT COUNTY, TEXAS 

____________________________________________________________

BRIEF FOR APPELLANT 

____________________________________________________________ 

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: 

Comes now the Appellant and submits this brief pursuant to the provisions 

of the Texas Rules of Appellate Procedure in support of his request for the 

judgment of conviction to be overturned in Cause No. 29,110.

Appellant Requests Oral Argument

ACCEPTED

06-14-00239-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/22/2015 10:09:39 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/23/2015 8:50:00 AM DEBBIE AUTREY Clerk
2

IDENTITY OF PARTIES AND COUNSEL

Appellant’s Attorney:

Jason A. Duff

2615 Lee Street

P.O. Box 11

Greenville, Texas 75403-0011

Appellant’s Trial Attorney:

Katherine A. Ferguson

P.O. Box 21

2900 Lee St., Suite 102

Greenville TX, 75403

Appellee:

The State of Texas by and through

Noble Walker

Hunt County District Attorney

4

th Floor Hunt County Courthouse

2500 Lee Street

Greenville, Texas 75401

Appellee’s Trial Counsel:

Steven Lilley

Hunt County District Attorney’s Office

4

th Floor Hunt County Courthouse

2500 Lee Street

Greenville, Texas 75401
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TABLE OF CONTENTS

Identity of the Parties and Counsel .............................................................2

Table of Contents .......................................................................................3

Index of Authorities .....................................................................................4

Statement of the Case ................................................................................6

Issue Presented..........................................................................................7

Statement of the Facts................................................................................8

Argument and Authorities ...........................................................................9

Issue Number One ...........................................................................9

The trial court erred by denying Appellant’s motion to suppress

evidence

Prayer for relief ........................................................................................ 18

Certificate of Word Count..........................................................................19

Certificate of Service.................................................................................19
4

INDEX OF AUTHORITIES

FEDERAL CASES:

Illinois v. Gates, 462 U.S. 213, 236 (1983)..................................................9

Jones v. United States, 362 U.S. 257, 271 (1960). ...................................10

STATE CASES:

Bass v. State 64 S.W.3d 646 (Tex.App. —Texarkana 2001).....................10

Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). ....................10

Coats v, State, 815 S.W.2d 715 (Tex.Crim. app. 1991) ............................13

Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011)...................10

Elardo v. State, 163 S.W.3d 760 (Tex. App.-Texarkana 2005, pet. ref'd)..11

Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007).......................10

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001).....................15

Taunton v. State, ___ S.W. 3d ____(Tex. App.-Texarkana 2015)...............9

Rodriguez v. State, 232 S.W.3d 55, (Tex. Crim. App. 2007) .......................9

State v. Ballard, 987 S.W.2d 889, 891 Tex.Crim.App.1999)......................10

State v. Delagarza, 158 S.W.3d 25 (Tex. App.-Austin 2005, no pet.)........12

State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011)...................9

State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000) .........................10

Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004)....................9
5

STATE STATUTES:

Tex. Code Crim. Proc. Ann. art. 18.01(c) (Casemaker 2015)....................12

Tex. R. App. P. 44.2(a) (Casemaker 2015)...............................................16
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STATEMENT OF THE CASE

This is an appeal of and sentence in criminal case for the 354th

Judicial District, in Hunt County, Texas. Appellant was convicted 

Manufacturing and Delivery of a Controlled Substance Penalty Group 1 

More than Four Grams but less than 200 Grams. After Appellant’s motion 

to suppress the evidence was denied by the trial court, Appellant Plead 

Guilty. Appellant was assessed a sentence Life Imprisonment on October 

1, 2014 by a Jury. Notice of appeal was given on October 3, 2014. The 

clerk's record was filed November 10, 2014. The reporter's record was 

filed on February 11, 2014.
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ISSUE PRESENTED

ISSUE ONE: 

THE TRIAL COURT ERRED BY DENYING APPELLANT’S 

MOTION TO SUPPRESS EVIDENCE
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STATEMENT OF THE FACTS

On December 7, 2012 an alleged victim to a sexual assault 

apparently through another person contacted Greenville PD and a report 

was made by an officer Petrea. The report was made into an affidavit in 

support of a search warrant by and sworn to by affidavit Felicia White in 

front of the former Judge Steven Tittle of the 196th District Court. (RR Vol. 

22, Joint Exhibit 1.) 

Throughout the affidavit, the Affiant White, refers to the alleged facts 

known to her only through a report appearing to be made by Petrea. Most 

every sentence referring to an alleged sexual assault begins with “Said 

report states.” Then the White described the facts she apparently read 

from another officer.

White stated that, “Jane Doe could not go into detail about the 

assault. (RR Vol. 22, Joint Exhibit 1. p.3). 

After a hearing the trial court in denied appellant’s Motion to suppress

and made findings stating it considered the totality of the circumstances 

there was probable cause within the four corners of the Application for 

Search warrant to issue to search for sexual assault. (CR Vol. 1 p. 90) The 

trial court made a formal order denying the motion to suppress on 

September 11, 2014. (CR Vol. 1p.94).
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ARGUMENT

Issue One: The trial court erred by denying Appellant’s motion to 

suppress evidence.

The United States and Texas Constitutions guarantee the right of the 

people to be secure against unreasonable searches of their persons, 

houses, papers, and effects. U.S. Const. amend. IV; Tex. Const. art. I, § 9. 

As an exception to the general rule articulated by the Texas Court of 

Criminal Appeals an issuing magistrate's decision to grant an application 

for a search warrant should be reviewed with a deferential standard of 

review. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). 

The deferential review "encourage[s] police officers to use the 

warrant process rather than making a warrantless search and later 

attempting to justify their actions by invoking some exception to the warrant 

requirement." Rodriguez v. State, 232 S.W.3d 55, 59–60 (Tex. Crim. App. 

2007). Courts have found that affidavits for arrest or search warrants 

should be interpreted in a "'common sense and realistic manner, '" and 

once a magistrate has found probable cause, warrants should not 

thereafter be invalidated through a "hypertechnical" interpretation of their 

supporting affidavits. Illinois v. Gates, 462 U.S. 213, 236 (1983); Crider v. 

State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). 
10

Courts can sustain the issuance of the warrant if "the magistrate had 

a 'substantial basis for . . . conclud[ing]' that a search would uncover 

evidence of wrongdoing." Gates, 462 U.S. at 236 (quoting Jones v. United 

States, 362 U.S. 257, 271 (1960)).

Yet, Courts do not grant that same degree of deference to a 

reviewing trial court. Courts review the trial court's ruling on a motion to 

suppress by an abuse of discretion standard. Bass v. State 64 S.W.3d 646 

(Tex.App. —Texarkana 2001). In a suppression hearing, the trial court is 

the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimonies. Courts view the evidence in the light 

most favorable to the trial court's ruling, State v. Ballard, 987 S.W.2d 889, 

891 Tex.Crim.App.1999), and afford almost total deference to the trial 

court's determination of historical facts which the record supports, 

especially when the fact findings are based on an evaluation of the 

witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 

(Tex.Crim.App.2000).

This Court stated in Taunton v. State, a motion to suppress is 

normally reviewed based on a bifurcated standard which (1) grants 

deference to the trial court's determinations of historical facts that are 

based on an evaluation of credibility and (2) reviews de novo the trial 
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court's application of the law. Taunton v. State, ___ S.W. 3d ____(Tex. 

App.-Texarkana 2015), citing State v. McLain, 337 S.W.3d 268, 271 (Tex. 

Crim. App. 2011). 

"However, when the trial court is determining probable cause to 

support the issuance of a search warrant, there are no credibility 

determinations, rather the trial court is constrained to the four corners of the 

affidavit." Id. "Because probable cause to support the issuance of the 

warrant is determined from the 'four corners' of the affidavit alone, there are 

no credibility choices to be made by the trial court," 

The review of the trial court’s ruling is then de novo. Elardo v. State, 

163 S.W.3d 760, 765 (Tex. App.-Texarkana 2005, pet. ref'd). 

To justify the issuance of a search warrant, the supporting affidavit 

must set forth facts sufficient to establish probable cause: (1) that a 

specific offense has been committed, (2) that the specifically described 

property or items that are to be searched for or seized constitute evidence 

of that offense or evidence that a particular person committed that offense, 

and (3) that the property or items constituting evidence to be searched for 

or seized are located at or on the particular person, place, or thing to be 

searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (Casemaker 2015). 
12

The facts alleged in the affidavits "must be sufficient to justify a 

conclusion that the object of the search is probably on the premises at the 

time the warrant is issued." State v. Delagarza, 158 S.W.3d 25, 26 (Tex. 

App.-Austin 2005, no pet.). The determination of the sufficiency of an arrest 

or search warrant is limited to the four corners of the affidavit. Tauton "The 

issue is not whether there are other facts that could have, or even should 

have, been included in the affidavit; we focus on the combined logical force 

of facts that are in the affidavit, not those that are omitted from the 

affidavit." Rodriguez, 232 S.W.3d at 62. 

Affidavit insufficient under its “Four Corners”

In the case at bar the affiant, did not give sufficient facts to justify the 

issuance of a search warrant. It clear that the affiant attempted to show the 

affidavit was based upon her training and experience as an officer when 

she stated her training an education. (RR Vol. 22, Joint Exhibit 1. p.2). Yet, 

in actuality the a statement of officer Petrea’s experience would have been 

more appropriate. Once more, there is no clear indication that White’s 

training and experience she was able to determine that Petrea made an 

investigation that resulted in reliable evidence, or even that she knew his 

experience and training would have led him to obtain reliable information. 

either based on her personal experience of Officer Petrea. 
13

Here, one cannot discern from the four corners of the affidavit that entry in 

the hotel room will further the investigation. The trial court erred that 

There is no indication that the information provided by Jane Doe is 

reliable for any reason. The facts presented little corroboration nor was 

there evidence of precious reliable information. Based on these facts Jane

Doe acted similar to a confidential informant. Courts have found there was 

no probable cause when informant known to the officer only three weeks

and the evidence provided offered very little corroboration or evidence of 

previous reliable information. Coats v, State, 815 s.w.2d 715 (Tex.Crim. 

app. 1991). Once more there is no clear indication in the four corners of 

the affadavit that Appellant did any of the sexual acts without the consent of 

Jane Doe. Affiant White stated in here affidavit she also apparently spoke 

with a person named Holly Robinson, the executive Director of the Crisis 

Center of Northeast Texas. (RR Vol. 22, Joint Exhibit 1. p.4). There is no 

indication that Robinson had any experience or even ben with the center 

for any period of time. Again White stated in her affidavit certain sex acts 

but there is no indication that those acts were done against the consent of 

Jane Doe.

Suppression under Franks v. Delaware
14

At the motion to suppress hearing the evidence came to light that 

rose to that the Officers had a reckless disregard for the truth. Appellant’s

trial attorney had the following exchange with the affiant:

Q:Y'all have absolutely no idea about her history, her truthfulness or 

lack thereof, correct?

A :Correct.

Q :She spins a tale for you and you fill out an affidavit for a search 

warrant, correct?

A: Yes.

(RR Vol. 17 p.18-19). Affiant White even admitted she had only 

done 3 or 4 search warrants before, and does not normally do them. (RR 

Vol. 17 p. 32). White stated relative inexperience despite stating in her 

affidavit she has experience and received additional training that included 

sexual assault investigation. Jane Doe was a transient person and not 

someone known to the local police. (RR Vol. 17 p.18). White or even the 

police department was able to corroborate anything from before the 

affidavit was made. (RR Vol.17 p.14).

Under Franks v. Delaware, a defendant who makes a substantial 

preliminary showing that a false statement was made in a warrant affidavit 

knowingly and intentionally, or with reckless disregard for the truth, may be 

entitled by the Fourth Amendment to a hearing, on the defendant's request. 

This hearing is required only where the false statement is essential to the 
15

probable cause finding. If at the hearing the defendant establishes the 

allegation of perjury or reckless disregard by a preponderance of the 

evidence, the affidavit's false material is set aside. If the remaining content 

of the affidavit does not then still establish sufficient probable cause, the 

search warrant must be voided and the evidence resulting from that search 

excluded Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007).

After the above testimony was elicited from the White it clear that the 

affidavit was made with reckless disregard for the truth. Therefore the 

evidence should have been suppress and his conviction should be 

overturned.

Constitutional Error

The erroneous admission of evidence over a Fourth Amendment 

objection is a constitutional error, and reversal is required unless the 

appellate court determines beyond a reasonable doubt that the error did

not contribute to the conviction. Hernandez v. State, 60 S.W.3d 106, 106 

n.1 (Tex. Crim. App. 2001 )

The reviewing court must reverse the conviction if there is a 

reasonable possibility that the error, within the context of the trial, moved 

the jury from acquitting the defendant to convicting him. Davis v.State

addition to the caselaw, courts are directed by Rule 44.2(a) of the Texas 
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Rules of Appellate Procedure. It states: If the appellate record in a criminal 

case reveals constitutional error that is subject to harmless error review, 

the court of appeals must reverse a judgment of conviction or punishment 

unless the court determines beyond a reasonable doubt that the error did 

not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a)

(Casemaker 2015). 

In making this determination, the appellate court must consider the 

entire record and weigh the following factors: "(1) the importance of the 

[complained-of] evidence to the State's case; (2) whether the . . . evidence

was cumulative of other evidence; (3) the presence or absence of other 

evidence corroborating or contradicting the [complained-of] evidence, . . .; 

(4) the overall strength of the State's case"; and (5) any other factor in the 

record that affects the probable impact of the error. Clay v. State, 240 

S.W.3d 895, 904 (Tex. Crim. App. 2007) (citing Davis v. State , 203 S.W.3d 

845).

In this case the evidence of the methamphetamine is the only 

contraband complained of in his indictment. Admittedly here the Appellant 

plead guilty to the crime, but it was only after the trial court overruled his 

motion to suppress. Without the methamphetamine there is no other valid 

of admissible evidence to convict the Appellant. The trial court did note 
17

even get to the issue of an admissibility of statements made by defendant 

because it was a case conceding position of contraband found in 

Appellants hotel room. Therefore the error contributed to the plea of guilty 

and conviction of Appellant.
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PRAYER FOR RELIEF

Wherefore, premises considered, Appellant respectfully prays that his

conviction in the above entitled and numbered cause be reversed and 

acquit him. Appellant further prays for all other lawful relief to which he 

may be entitled, at law or in equity.

Respectfully submitted,

Jason A. Duff

State Bar No. 24059696

2615 Lee Street

P.O. Box 11

Greenville, TX 75403-0011

Attorney for the Appellant
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CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

In accordance with Texas Rules of Appellate Procedure 9.4 (e) and 

(i), the undersigned attorney or record certifies that Appellant's Brief 

contains 14-point typeface of the body of the brief, 12-point typeface for 

footnotes in the brief and contains 1,985 words, excluding those words 

identified as not being counted in appellate rule of procedure 9.4(i)(1), and 

was prepared on Microsoft Word 2010.

Jason A. Duff

Attorney for the Appellant

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and 

foregoing instrument was forwarded to Hunt County District Attorney Noble 

D. Walker, Jr., P.O. Box 1097, Greenville, Texas 75403, on this the 22nd

day of July, 2015, by hand and to the Court of Appeals in Texarkana via 

Electronic Filing.

Jason A. Duff

Attorney for the Appellant