Opinion
No. 05-01-01330-CR.
Opinion Filed April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-00557-PU. Affirmed.
OPINION
A jury convicted appellant of possession with intent to deliver amphetamine in an amount of four grams or more but less than 400 grams, and the court assessed his punishment at confinement for twenty years. In two points of error, appellant asserts that the evidence against him was obtained in violation of the Texas Constitution and Code of Criminal Procedure and the United States Constitution. Therefore, he argues that the trial court reversibly erred in denying his motion to suppress. We affirm. On September 8, 1998, Officer Will Bishop of the Irving Police Department obtained a warrant to search 3310 Bryn Mawr. In pertinent part, the affidavit supporting the warrant's issuance, admitted into evidence as defendant's exhibit seven at the motion to suppress hearing, read as follows: Your Affiant W.C. Bishop #698 is employed by the Irving Police Department as a narcotics investigator assigned to the special investigation section of the criminal investigation division. Within 48 hours of 09-08-98 your Affiant was contacted by a confidential informant, who your Affiant has used on two or more occasions and who has always provided your Affiant with information which has proven to be accurate and reliable. The confidential informant told your Affiant that he/she had been at the location listed in #1 above within 48 hours of 09/08/98. The confidential informant told your Affiant that the person listed in #3 above was in possession of methamphetamine at the location listed in #1 above. The confidential informant is familiar with the characteristics of methamphetamine/amphetamine from his/her past experience. When the police executed the warrant, they found appellant in the kitchen, and amphetamine and methamphetamine in the kitchen and master bedroom. It was evidence seized in this search that appellant contends should have been suppressed. On December 3, 1998, Officer Bishop's partner, Officer Randall Hayen, also obtained a warrant to search the same address. Officer Hayen's affidavit, admitted into evidence as defendant's exhibit eight at the motion to suppress hearing, read as follows: Your Affiant R. Hayen #607 is employed by the Irving Police Department as a narcotics investigator assigned to the special investigation section of the criminal investigation division. Within 48 hours of 12-03-98 your Affiant was contacted by a confidential informant, who your Affiant has used on two or more occasions and who has always provided your Affiant with information which has proven to be accurate and reliable. The confidential informant told your Affiant that he/she had been at the location listed in #1 above within 48 hours of 12/03/98. The confidential informant told your Affiant that the person listed in #3 above was in possession of methamphetamine at the location listed in #1 above. The confidential informant is familiar with the characteristics of methamphetamine/amphetamine from his/her past experience. When they executed the warrant, the officers found no drugs, although they did discover what appeared to be drug transaction notes. No arrest was made. Appellant first contends that the affidavits supporting the issuance of the search warrants are identical except for the name of the affiant and the dates. Appellant maintains that both are form affidavits whose use has been condemned by the court of criminal appeals. See Faulkner v. State, 537 S.W.2d 742, 744 (Tex.Crim.App. 1976); Brown v. State, 437 S.W.2d 828, 829 (Tex.Crim.App. 1968). He next argues that the failure to find narcotics during the execution of the December warrant demonstrates the unreliability of the information provided by the confidential informant to establish probable cause. Citing Franks v. Delaware, 438 U.S. 154 (1978), appellant claims that the unreliability of the affiant's information contained in the affidavit for the December warrant demonstrates that affidavits supporting the issuance of both the September and December search warrants "contained deliberately false allegations of fact which constitute the basis for [the] finding of probable cause and that, if the false allegations were excised, the remaining portion of the affidavit would be insufficient to support a finding of probable cause." The affidavits are very similar, because both affiants sought to search the same premises, occupied by the same person, engaged in the same activity. Given such similar facts, it would be surprising if the affidavits had not been substantially similar. Moreover, even if the two affidavits could be considered "form affidavits," that alone would not render them invalid. See Brown, 437 S.W.2d at 829. Next, appellant argues that the affidavit for the September warrant contains deliberately false statements. If a defendant can establish by a preponderance of the evidence that a falsehood made knowingly, intentionally, or with reckless disregard for the truth was included in a probable cause affidavit, and it was material to establish probable cause, the falsehood must be excluded from the affidavit. If the affidavit is then insufficient to establish probable cause, the warrant must be voided and the evidence excluded. Franks, 438 U.S. at 155-56. Appellant does not, however, specify which allegations are false. His bald assertion is absolutely unsupported by the record. Unsupported assertions in an appellate brief will not be accepted as fact. See Franklin v. State, 693 S.W.2d 420, 431 (Tex.Crim.App. 1985). The execution of the September warrant resulted in the seizure of amphetamine and methamphetamine and the arrest of the appellant. The affidavit supporting its issuance contained sufficient allegations to establish probable cause. Neither the similarity of the December affidavit, nor the failure of that later search to find drugs can affect the validity of the affidavit supporting the issuance of the warrant three months earlier in the instant case. Appellant's points one and two are overruled. The judgment is affirmed.
During the suppression hearing, Bishop identified the narcotics recovered as methamphetamine. During the trial, testimony and a lab report showed both amphetamine and methamphetamine were found during the search.