Wolfgang Fisher v. State

Opinion issued July 21, 2011.

In The

Court

of Appeals

For The

First

District of Texas

————————————

NO.

01-09-00942-CR

———————————

Wolfgang Fisher , Appellant

V.

State of Texas , Appellee

On Appeal from the County Criminal

Court at Law No. 12

Harris County, Texas

Trial Court Case No. 159340801010

MEMORANDUM

OPINION

Appellant Wolfgang Fisher pled

guilty to the misdemeanor offense of cruelty to animals. The trial court deferred adjudication for one

year and fined him $300.00. Fisher now

contests the trial court’s denial of his pre-trial motion to suppress

evidence. In two issues, the appellant

argues (1) that the evidence was seized pursuant to a facially invalid warrant

and (2) that the trial court erred in not suppressing the evidence pursuant to

Article 38.32(a) of the Texas Code of Criminal Procedure.

We affirm.

Background

In

November, 2008, Christine Kendrick, a Harris County Deputy Constable assigned

to the Precinct 1 Animal Cruelty Unit, learned from an anonymous tip received

by the Houston SPCA that a very ill chimpanzee was housed in a garage in

Crosby, Texas. Accompanied by two SPCA employees, Deputy Kendrick went to

investigate and upon arrival at the address, could hear the chimpanzee

screaming as soon as she stepped from her car.

No one

answered the front door of the house, but from an open doorway of the garage could

be seen a caged chimpanzee sitting on a small shelf with his knees pulled up, making

hacking noises, vomiting and emitting screams that sounded like cries of human

distress. The animal was emaciated and filthy,

with discharge running from his eyes and nose.

Deputy Kendrick testified that she believed the chimp to be in extremis necessitating emergency care,

but her lack of familiarity with handling primates and concern about

communicable diseases dissuaded her from her desire to immediately remove the

animal herself. Instead, she called the

Harris County Sheriff’s Department and, while a unit remained at the scene, went

to get a warrant. A zoo veterinarian was

summoned to handle the animal.

In the course of filling in

the blanks of a form affidavit and warrant [1]

Deputy Kendrick made some errors and tore it up, realizing too late that it was

her last form. The deputy then “borrowed” one of the SPCA investigator’s forms,

completed it and proceeded to court. The

presiding judge signed the warrant and, once Deputy Kendrick made copies, she

returned with them to the house in Crosby, provided copies to the zoo

veterinarian and the SPCA personnel and posted a copy on the front door of the

residence. The chimp was then sedated

and removed.

Unknown to the deputy at the

time, the pre-printed affidavit and warrant forms that Deputy Kendrick had

filled out were identical to those forms she used in the course of her duties

with one important exception: they repeatedly recited Montgomery County, not

Harris County. Deputy Kendrick testified

that she paid no attention to the pre-printed portions of the forms as she was

setting forth her hand-written descriptive information in the blanks provided

on the affidavit and warrant forms.

Where the county, precinct number and court number were to be provided on

a blank line at the top right-hand corner of the warrant, she wrote in “Harris,”

as was her custom as a Harris County officer. Deputy Kendrick testified that the judge, too,

must have failed to note the several printed “Montgomery County” references, as

he made no mention of it as he signed off on the warrant. She further

acknowledged that she only handles Harris County cases and that the use of

those forms reciting Montgomery County was a mistake. In her findings of fact, the trial judge

found Deputy Kendrick’s testimony truthful and credible.

Analysis

In both of his issues

appellant complains of the admission of evidence he asserts was seized in violation of his

constitutional rights.

A.

Standard of

Review

We review a trial court’s decision in denying a motion

to suppress for an abuse of discretion under a bifurcated standard of review,

giving almost total deference to the trial court’s determination of historical

facts that depend on credibility. See Balentine v. State , 71 S.W.3d 763,

768 (Tex. Crim. App. 2002); Carmouche v.

State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). This is especially true when the trial

court’s findings turn on evaluating a witness’s credibility and demeanor. State

v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc). We give the same amount of deference to the

trial court’s ruling on mixed questions of law and fact when the question is

resolved by evaluating credibility and demeanor. Id.

Only pure questions of law are considered de novo. Id.

When, as here, a trial court makes explicit findings

of fact, we determine whether the evidence, viewed in the light most favorable

to the trial court’s ruling, supports the findings . See State v. Kelly , 204

S.W.3d 808, 818 (Tex. Crim. App. 2006).

If the trial court’s ruling is reasonably supported by the record and is

correct on any theory of law applicable to the case, the reviewing court will

sustain it upon review. Villarreal v. State , 935 S.W.2d 134, 138

(Tex. Crim. App. 1996) (en banc).

B. The Validity of the Search Warrant

In

his first and second issues, appellant contends that the trial court erred in

denying his motion to suppress evidence seized pursuant to a facially invalid

warrant. The warrant, signed by a Harris County justice of the peace, directed

Montgomery County peace officers to seize an animal located at a Harris County

address mistakenly labeled as a Montgomery County address. While a Harris County officer both presented

the affidavit underlying the warrant and executed the warrant at the correct Harris

County address, appellant contends that Deputy Kendrick entered the premises

absent lawful authority and all evidence seized was the fruit of that unlawful

entry. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005) (“No evidence obtained

by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of

the United States of America, shall be admitted in evidence against the accused

on the trial of any criminal case.”).

1.

Requirements

of a Search Warrant

The Texas Code of Criminal

Procedure provides:

A search warrant issued under this chapter shall be sufficient if it

contains the following requisites:

(1) that it run in the name of

the “State of Texas”;

(2) that it identify, as near as

may be, that which is to be seized and name or describe, as near as may be, the

person, place, or thing to be searched;

(3) that it command any peace

officer of the proper county to search forthwith the person, place, or thing

named; and

(4) that it be dated and signed

by the magistrate.

See Tex. Code Crim. Proc. Ann. art.

18.04 (West 2005).

2. The Warrant

Here,

the fundamental dilemma stems from a pre-printed form that resulted in a

warrant authorized by a magistrate of one county (erroneously described in the

warrant as being from another county) directing officers from one county to

make a search and seizure at a location described to be in that county, but

actually in another county, and executed by officers of that other county.

The

face of the search warrant commanded officers of Montgomery County to seize

property at an address described to be in Montgomery County, but actually

located in Harris County. The warrant

was subscribed by a Harris County justice of the peace above a signature line

identifying himself as “Justice of the Peace Montgomery County, Texas.”

Additionally, although directed to Montgomery County law enforcement, the

warrant was actually executed by Harris County officers. These being the facts

as they have come to us, that the warrant is facially invalid is a given.

The

State presents ample authority for the proposition that inconsistencies in the

warrant that are typographical in nature do not operate to invalidate the

warrant. See, e.g. , Rougeau v. State ,

738 S.W.2d 651, 663 (Tex. Crim. App. 1987), overruled

on other grounds, 784 S.W.2d 5 (Tex. Crim. App. 1989) (typographical error

indicating that arrest warrant was issued one year before offense did not

vitiate arrest warrant); Lyons v. State ,

503 S.W.2d 254 , 255–56 (Tex. Crim. App. 1973) (evidence seized pursuant to

search warrant containing typographical date error was admissible); Rios v. State , 901 S.W.2d 704, 707 (Tex.

App.—San Antonio 1995, no pet.) (inaccurate

use of word “vehicle” in search warrant, rather than “premises,” did not

vitiate warrant where person who typed warrant testified that discrepancy was

due to clerical error). However, these cases

speak to true typographical errors by the maker of the warrant who entered an

incorrect word or date.

Vance v. State , 759 S.W.2d 498 , 501 (Tex.

App.—San Antonio 1988, pet. ref’d), provides a closer measure of guidance to

the issues before us. There, a warrant

on a pre-printed form for use in Bexar County, Texas, was altered by the

preparing officer for use in Guadalupe County by typing X’s through printed

references to Bexar County and the City of San Antonio and typing, as

interlineations, “Guadalupe County.” Id .

He made three such changes, but failed to alter the line near the top of

that warrant that directed it “TO THE SHERIFF OR ANY PEACE

OFFICER OF BEXAR COUNTY.” The appellant

in that case contested the validity because it was directed to officers of a

different county.

The San

Antonio court, noting the warrant was executed by two members of the Guadalupe

County Sheriff’s Office and three San Antonio police officers, and that a

proper return was made on the warrant, held that, “[c]onsidering the entire

warrant and the accompanying affidavit incorporated by reference therein,” the

failure to substitute Guadalupe County for Bexar County at the top of the

warrant “was not such a fatal defect that it contributed to either the

conviction or the punishment of the appellant.”

Id.

Here, Deputy Kendrick conceded that she

never noticed the words on the pre-printed form that directed the warrant to a

Montgomery County officer, and made no attempt to change “Montgomery County” to

“Harris County.” Indeed, the lone

mention of “Harris County” is hand-written immediately above a blank line

intended for insertion of the County’s name.

Deputy Kendrick made clear that she did not write “Harris County” in an

attempt to alter the affidavit, but simply because, as a Harris County Deputy Constable,

it was her common practice in filling out the pre-printed affidavit forms to

insert “Harris” on that blank line of the affidavit. She failed to notice that the remainder of

the form she had obtained from the SPCA representative had “Montgomery”

pre-printed in all the places her usual forms recited “Harris.”

Vance is further instructive in that here the record reflects that

only Harris County officers participated in the chimpanzee’s seizure. See

also, Dickey v. State , 816 S.W.2d 832, 834 (Tex. App.—Eastland 1991, no

pet.) (warrant addressed to peace officer of Galveston County for search of

location in Galveston County upheld, despite fact that affidavit was signed by

Houston police officer, where at least one of officers who participated in

search was deputy in Galveston County Sheriff’s Department).

We conclude that the warrant here, directed to

Montgomery County law enforcement officers, to seize an animal from premises

described in the warrant to be in Montgomery County was invalid to give Deputy

Kendrick, a Harris County law enforcement officer, authority to search and/or

seize property from a Harris County residence.

C. The Good Faith Exception

Evidence

obtained under a defective warrant may still be valid, however, under the “good

faith” exception to Article 38.23. See Tex.

Code Crim. Proc. Ann. art.

38.23(b) (West 2005).

1. Statute

Pursuant

to Article 38.23(b), “[i]t is an exception to the provisions of Subsection (a)

of this Article that the evidence was obtained by a law enforcement officer

acting in objective good faith reliance upon a warrant issued by a neutral

magistrate based on probable cause.” Id. Accordingly, evidence obtained by a

police officer acting in good faith reliance upon a warrant based upon a

magistrate’s determination of probable cause is not rendered inadmissible

because of a defect found in the warrant after its execution. Dunn v.

State , 951 S.W.2d 478, 479 (Tex. Crim. App. 1997) (after warrant executed,

officers realized warrant had not been signed by magistrate, even though

magistrate meant to sign all 21 warrants); Jones

v. State , 914 S.W.2d 675, 677 (Tex. App.—Amarillo 1996, no pet.) (after warrant

executed, affiant-officer who executed warrant realized apartment number was

wrong).

Under

its unambiguous language, the good faith exception requires an initial finding

of probable cause. Curry v. State , 815 S.W.2d 263, 265 (Tex. App.—Houston [14th Dist.]

1991, no pet.) Once this determination

has been made, article 38.23(b) is only implicated if the warrant is in some

way defective. See Brochu v. State , 927 S.W.2d 745 , 748–49 (Tex. App.—Houston

[14th Dist.] 1996, pet. ref’d) (warrant executed on misidentification); Brent v. State , 916 S.W.2d 34, 38 (Tex.

App.—Houston [1st Dist.] 1995, writ ref’d) (warrant valid despite absence of

affiant’s signature); Rios , 901

S.W.2d at 706–07 (warrant inadvertently identified place to be searched as

“vehicle” instead of “premises”). The

statute requires that we assess the objective, and not the subjective, good

faith of the officer executing the warrant.

Hunter v. State, 92 S.W.3d

596, 603 (Tex. App.—Waco 2002, pet. ref’d), overruled

on other grounds , 207 S.W.3d 787, 788 (Tex. Crim. App. 2006). Under Article

38.23(b), the affiant-officer who executed the warrant may explain defects in

the affidavit at the hearing on the motion to suppress. See Dunn , 951 S.W.2d at 479 ; Jones ,

914 S.W.2d at 677 ; Rios , 901 S.W.2d

at 707 ; cf . U.S. v. Gordon, 901 F.2d 48, 50 (5th Cir.1990) (officer who

executed affidavit and was present when warrant was executed testified at

suppression hearing regarding mistake in street name). Under the unique, albeit

harried, circumstances of this particular case, an error in the warrant

description may be cured by facts known by the affiant-officer who is also the

executing officer. 2 Wayne R. LaFave , Search

and Seizure § 4.5(a) (3d ed. 1996); see,

e.g., Jones , 914 S.W.2d at 677 ; Rios , 901 S.W.2d at 707 ; Gordon , 901 F.2d at 50 ); Smith v. State , 962 S.W.2d 178, 187

(Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (O’Connor, J., concurring).

2.

Application of Law to the Facts

At appellant’s

motion to suppress hearing, Deputy Kendrick acknowledged that the pre-printed

sections of the warrant recited Montgomery rather than Harris County, thus

establishing the warrant’s defect. She

testified as to having filled in blanks of the form affidavit and warrant without

noticing the warrant’s four recitations of Montgomery County. She further testified that the presiding

judge signed the warrant immediately with no mention of the fact that it recited

Montgomery rather than Harris County. Such testimony is sufficient to establish

Deputy Kendrick’s good faith in her reliance on the warrant.

Moreover,

there is evidence to support that the warrant was issued on probable

cause. The warrant was based on the

affidavit that Deputy Kendrick executed.

This affidavit listed her observations as follows:

Deputy

C. Kendrick, 82027, observed a chimpanzee in a metal enclosure inside a

garage. No water was available. The enclosure was extremely dirty with the

floor covered with feces, vomit and trash.

The chimpanzee is extremely ill, with lesions in the mouth, vomiting

continuously is thin and appears to be in respiratory distress. The county attorney’s office will be notified.

Appellant has not challenged that this affidavit was

inadequate to provide the magistrate with probable cause to issue the

warrant. Nor is the neutrality of the

magistrate challenged.

We are thus

compelled to conclude that the evidence obtained by Deputy Kendrick herein

falls squarely within the good faith exception to Article 38.23(b) in that the

evidence was obtained by a law enforcement officer acting in objective good

faith reliance upon a warrant issued by a neutral magistrate based on probable

cause. See Tex. Code Crim. Proc.

Ann. art. 38.23(b). Accordingly,

the trial court did not abuse its discretion by denying the motion to suppress the

evidence and appellant’s first and second issues are overruled.

Conclusion

We affirm.

Jim Sharp

Justice

Panel consists of Chief Justice

Radack and Justices Sharp and Brown.

Do not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Health & Safety Code Ann. §

821.022 (W est 2010) ( authorizing

officer to apply for warrant to seize “cruelly treated” animal).