                                                                       ACCEPTED
                                                                  13-14-00588-CR
                                                    THIRTEENTH COURT OF APPEALS
                                                          CORPUS CHRISTI, TEXAS
                                                             4/14/2015 9:48:05 AM
                                                                 DORIAN RAMIREZ
                                                                           CLERK

          NO. 13-14-00588-CR

     IN THE COURT OF APPEALS        FILED IN
                            13th COURT OF APPEALS
  FOR THE THIRTEENTH DISTRICT
                         CORPUSOFCHRISTI/EDINBURG, TEXAS
              TEXAS          4/14/2015 9:48:05 AM
         AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                            Clerk

        THE STATE OF TEXAS,
                      Appellant,
                v.

CHRISTOPHER ALEXSON PAPPILLION,
                   Appellee.

  On Appeal from the 377th District Court
        Victoria County, Texas
      Cause Number 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.org
              (361) 575-0468
           (361) 570-1041 (fax)
          State Bar No. 24034895
                (On Appeal)

      Attorneys for the State of Texas

 ORAL ARGUMENT NOT REQUESTED
                              IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as
follows:

APPELLANT                                         The State of Texas

APPELLEE                                          Christopher Alexson Pappillion

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

TRIAL PROSECUTOR                                  Edward Paul Wilkinson
                                                  State Bar No. 24052674
                                                  Assistant Criminal District Attorney
                                                  205 N. Bridge St. Ste 301
                                                  Victoria, Texas 77901-6576

TRIAL DEFENSE ATTORNEY                            Brent Andrew Dornburg
                                                  State Bar No. 24003930
                                                  120 N. Main Street
                                                  Victoria, Texas 77901

APPELLATE STATE’S                                 Brendan Wyatt Guy
ATTORNEY                                          State Bar No. 24034895
                                                  Assistant Criminal District Attorney
                                                  205 N. Bridge St. Ste 301
                                                  Victoria, Texas 77901-6576

APPELLATE DEFENSE                                 Stephen D. Jackson
ATTORNEYS                                         Law Offices of Stephen D. Jackson &
                                                  Associates
                                                  State Bar No. 00784324
                                                  215 Simonton
                                                  Conroe, Texas 77301




Reply Brief of Appellant                     ii
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                               Paul Morrison
                                               Law Offices of Stephen D. Jackson &
                                               Associates
                                               State Bar No. 24079028
                                               215 Simonton
                                               Conroe, Texas 77301




Reply Brief of Appellant                     iii
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             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 ............................................................. 13




Reply Brief of Appellant                              iv
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             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 [14th 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 55 (Tex. Crim. App. 2007) ............... 2-3



                                                  Texas Rules

TEX. R. APP. 9.4..................................................................................... 12

TEX. R. APP. 38.1..................................................................................... ii




Reply Brief of Appellant                              v
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                 NO. 13-14-00588-CR

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

THE STATE OF TEXAS…………………………………………..Appelant

v.

CHRISTOPHER ALEXSON PAPPILLION,.……………………...Appellee

                                                     * * * * *

                                             APPELLANT’S REPLY BRIEF

                                                     * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellant in the above numbered

and entitled cause, and files this the Appellant’s Reply Brief showing:

                                             SUMMARY OF THE REPLY

            Even 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 evaluating 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. The omitted material at issue in this case does
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                         1
not diminish the probable cause that was already established by the search

warrant affidavit for this case. The omitted material still strongly supports a

finding that cocaine was obtained from inside Appellee’s residence, and 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 supported 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.

         The 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 is 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 cocaine
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                               2
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 supposed 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 the 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 [14th Dist.] 1988, no pet). That 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 Criminal Appeals was going to extend Franks to

apply to omissions then that is how it would structure the test. Rentaria v.
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             3
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 included.) 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 material 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 there 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

Confidential Informant (hereafter CI) did not actually participate 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

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

about his truthfulness or veracity; and 6) that the CI had no information
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             4
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 affidavit 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

about 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 affidavit still easily establishes that narcotics were present at

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

           The record shows that the CI attempted to purchase 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 back



Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             5
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 was present in Appellee’s

residence at the time the CI travelled there. There is just no other 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 cocaine, then that certainly

supports a reasonable inference the individual got the cocaine 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 police

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 more
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             6
drugs inside the building, 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 evidence 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(finding 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

credibility 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 the
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             7
police, their credibility is not really at issue in the 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 credibility 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

about not having any cocaine when the CI approached them. They would

simply have no reason to lie. (Admittedly in some circumstances a drug

dealer might lie about having drugs available for sale if the dealer fears he is

being set up either by a police agent or for a robbery, but in this case if any

of these individuals 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.)

           It likewise does not matter if Mr. Casas lied about how he obtained the

drugs once he went inside Appellee’s residence. Even if Mr. Casas stole the

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

still mean there was cocaine inside that residence at the time that Mr. Casas
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             8
entered the residence. And as already discussed, if there was cocaine inside

the residence 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 supports the issuance of a search warrant for that

residence.

             Nor does it matter that the CI was not the one who actually purchased

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. Casas 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 residence.

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 could also observe/hear) is more than enough to support

a reasonable inference 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. Therefore it is not necessary

for the CI to have witnessed the actual sale of drugs inside the residence.
Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             9
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

requisite 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 the 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 justification for

suppression in this case because the inclusion of the omitted material 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 location,

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 granting the motion to suppress, and that ruling should be

reversed.




Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                             10
                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court reverse the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL 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 APPELLANT,
                                             THE STATE OF TEXAS




Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                  11
                                     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 Appellant’s Brief submitted on

April 14, 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 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                  12
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, 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 Appellee, Christopher Alexson Pappillion, by

depositing same in the United States Mail, postage prepaid on the day of April

14, 2015.



                                                   /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




Reply Brief of Appellant
Victoria County Criminal District Attorney
No. 13-14-00588-CR
                                                        13
