Opinion
No. 05-07-01384-CR.
Opinion issued December 15, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 366th Judicial District Court Collin County, Texas, Trial Court Cause No. 380-82018-06.
Before Justices MORRIS, WHITTINGTON, and O'NEILL. Opinion By Justice MORRIS.
OPINION
A jury convicted Charles Jason Benedict of three counts of aggravated sexual assault of a child and sentenced him to life confinement for each count. He now complains on appeal that the trial court erred by failing to suppress physical evidence in the case and his statement to police. We affirm the trial court's judgment. In appellant's first point of error, he complains the trial court should have suppressed physical evidence in the case because the information in the search warrant's affidavit was too stale to provide probable cause for the search. In reviewing an affidavit in support of a search warrant, we give great deference to the issuing magistrate's determination of probable cause. We must determine whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. See McKissick v. State, 209 S.W.3d 205, 211 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Probable cause exists when the facts submitted to the magistrate are sufficient to justify a conclusion that the objects of the search are probably on the premises to be searched at the time the warrant is issued. See id. The affidavit supporting the search warrant in appellant's case provided the following:
On 07-30-2006 . . . mother of [the child complainant] . . . reported a sexual assault to the Affiant. [Mother] stated that in the past six months [the complainant] has stayed the night with her uncle the suspect Charles Benedict. . . . When [the complainant stayed at the residence the suspect sexually assaulted [the complainant] by placing his penis in her anus, on her vagina, and in her mouth.
A forensic interview of [the complainant] was conducted at the Collin County Children's Advocacy Center on 07-31-06. [The complainant] described the incident as follows. [The complainant] described the incident above in detail that the suspect sexually assaulted her by placing his penis on her vagina, in her anus and in her mouth causing her pain. [The complainant] described that the suspect would set up a video camera to tape the assaults as it [sic] occurred. [The complainant] described the assault as the suspect taking their close [sic] off and he would place his penis in her mouth, her anus, and on her vagina. Also the suspect would take cake icing and place it on his penis for her to lick it off. When the incidents occurred [the complainant] described that the suspect would "pee" in her mouth and she would swallow it or spit it out. The description of the "pee" makes the Affiant believe that the suspect was ejaculating in [the complainant's] mouth and on her body. [The complainant] stated that after the assaults the suspect would take the video tapes and place them in a closet. [The complainant] also described pornographic photographs that the suspect showed her on his computer.The proper method to determine whether the facts supporting a search warrant have become stale is to examine the time elapsing between the occurrence of the events set out in the affidavit and the issuance of the search warrant, in light of the particular criminal activity involved. See id. at 214. When the affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant. Id. Here, the issuing magistrate could have reasonably inferred that the acts alleged in the affidavit were ongoing for the six months before the issuance of the warrant. Moreover, appellant was recording and storing the evidence of his crime, and the evidence was "not of a sort that is transient in nature, such as drugs." Id. We conclude the affidavit was not insufficient to support a finding of probable cause due to staleness. We overrule appellant's first point of error. In his next point of error, appellant complains the trial court erred by failing to grant his motion to suppress based on the State's failure to comply with chapter 18 of the code of criminal procedure. He seems to complain in particular that the officer who executed the warrant did not return the warrant to the issuing magistrate in a timely fashion under article 18.06(a) and 18.10 and did not present appellant a copy of the warrant at the time of the search, which he claims violated article 18.06(b). See Tex. Code Crim. Proc. Ann. arts. 18.06, 18.10 (Vernon 2005). He contends the evidence should have been suppressed under the Texas exclusionary rule, which states that evidence obtained in violation of state or federal law may not be admitted against the accused in a criminal case. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Testimony at the suppression hearing showed that an officer made a copy of the search warrant available to appellant's wife (but not appellant) when they arrived to search the home and left a copy of the search warrant and return with her when he departed. The record further shows the executed warrant was not returned to the magistrate until approximately one week before trial. We review a trial court's ruling on a motion to suppress for an abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. See Rice v. State, 195 S.W.3d 876, 882 (Tex.App.-Dallas 2006, pet. ref'd). Ministerial violations of the search warrant statutes do not vitiate the search warrant in the absence of a showing of prejudice. See Robles v. State, 711 S.W.2d 752, 753 (Tex.App.-San Antonio 1986, pet. ref'd). Moreover, evidence should be excluded under article 38.23 only if the record shows a causal connection between the illegality and the complained-of evidence. See State v. Purdy, 244 S.W.3d 591, 595 (Tex.App.-Dallas 2008, pet. ref'd) (citing Roquemore v. State, 60 S.W.3d 862 (Tex.Crim.App. 2001)). In this case, appellant does not claim he was surprised by the contents of the warrant, the affidavit, or the return. Nor does he complain that the alleged violations of article 18.06 and 18.10, rather than the valid warrant, somehow brought about the discovery of the evidence in his case. Accordingly, the trial court did not abuse its discretion in denying appellant's motion to suppress the physical evidence. We overrule appellant's second point of error. In his third point of error, appellant contends his statement to police following the search should have been suppressed by the trial court under article 38.23 because it was effected by the "illegal search." As discussed above, evidence should be excluded under article 38.23 only if the record demonstrates a causal connection between the illegality and the complained-of evidence. See Purdy, 244 S.W.3d at 595. We have already determined the search in appellant's case was conducted under the authority of a warrant supported by probable cause. The legal search revealed evidence supporting the complainant's description of appellant's crimes. At the time of appellant's arrest and while the search was ongoing, an officer told appellant he was looking for videotapes, and appellant told the officer where the tapes could be located. Appellant told a second officer where to find his video camera. Following the search of his house, appellant gave a videotaped oral statement that contained incriminating evidence. Nothing in the record before us demonstrates a causal connection between any alleged failure to give appellant a copy of the search warrant or timely file the warrant return with the issuing magistrate and appellant's decision to give police a statement. Accordingly, the trial court did not abuse its discretion in denying the motion to suppress the statement. We overrule appellant's third point of error as well. We affirm the trial court's judgment.