Donnell Glenn v. State ( 2007 )

Opinion filed May 24, 2007

Opinion filed May 24, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00330-CR

                                                    __________

                                      DONNELL GLENN, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 39th District Court

                                                         Haskell County, Texas

                                                     Trial Court Cause No. 6060

                                                                   O P I N I O N

The jury convicted Donnell Glenn of possession of a controlled substance, cocaine, with an intent to deliver in an amount greater than four grams but less than 200 grams. The trial court found the enhancement paragraphs to be true and assessed punishment at seventy-five years confinement. We modify and affirm.

In two points of error, appellant argues that the trial court erred in failing to grant his motion to suppress evidence seized in violation of the Fourth Amendment of the United States Constitution and Article I, section 9 of the Texas Constitution. In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings.  Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).  Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling.   Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).   We must afford the same amount of deference to the trial court=s rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.  Appellate courts, however, review de novo Amixed questions of law and fact@ not falling within the previous category.  Id.

Appellant specifically complains that the affidavit presented to the magistrate to obtain the  search warrant contained false information.  The affidavit of Sheriff David Halliburton states that appellant possessed cocaine in a residence located in Haskell, Texas.  The affidavit states that Sheriff Halliburton=s belief was based upon Areceived information from a confidential informant whose identity must remain a secret for security reasons.@  The affidavit further provides that the confidential informant was credible, reliable, and trustworthy and that the confidential informant had previously given information to Sheriff Halliburton that was proven true and correct.  

Appellant contends that the informant was Aanonymous@ rather than Aconfidential@ and that Sheriff Halliburton recklessly disregarded the truth in failing to disclose this fact to the magistrate.  Sheriff Halliburton testified at the hearing on appellant=s motion to suppress that he had received information from a confidential informant concerning the sale of cocaine at a residence in Haskell. Sheriff Halliburton stated that he knew the informant prior to the informant giving this information. The informant had provided information in the past, and Sheriff Halliburton knew the informant to be reliable and trustworthy.  Sheriff Halliburton further testified that he observed the residence and saw activity consistent with drug activity. 

During the hearing, appellant=s attorney questioned Sheriff Halliburton about statements in his supplemental arrest report that indicated Sheriff Halliburton did not know the informant. Sheriff Halliburton testified that he misstated information in the arrest report, that he did know the informant, and that the informant wanted to remain confidential and anonymous. Sheriff Halliburton stated that, although the informant did not give his name, Sheriff Halliburton recognized the informant=s voice.  Sheriff Halliburton stated that he had talked to the informant on previous occasions, that he had met the informant in person, and that the informant had a Adistinct@ voice. Sheriff Halliburton was confident that he knew the identity of the informant. 

The trial court denied appellant=s motion to suppress, finding that Sheriff Halliburton recognized the voice of the informant.  Appellant has not shown that the magistrate was misled by information in the affidavit that Sheriff Halliburton either knew was false or that he should have known was false if not for his reckless disregard for the truth.  See  Franks v. Delaware, 438 U.S. 154 (1978).  The trial court did not err in denying appellant=s motion to suppress.  Appellant=s first and second points of error are overruled.

We modify the judgment of the trial court to show that appellant was convicted of the offense of possession with the intent to deliver a controlled substance, namely cocaine, in an amount by aggregate weight, including any adulterants and dilutants, of four grams or more but less than 200 grams.^[1]  As modified, the judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

May 24, 2007

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

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]Although not raised by the parties, when we reviewed the record in this case, we noted that the indictment in this case charges that appellant did Apossess, with the intent to deliver, a controlled substance, namely cocaine, in an amount by aggregate weight, including any adulterants and dilutants, of (4-200 grams).@  The judgment shows that appellant was convicted of the offense of AManufacture/Delivery of a Controlled Substance, namely Cocaine (4-200 grams), [Tex. Health & Safety Code Ann.] ' 481.112 [(Vernon 2003)], First Degree Felony (habitual felony).@  The judgment contains language that the jury verdict was:  AWe, the jury, find beyond a reasonable doubt, [appellant] guilty of the offense of Manufacture/Delivery of a Controlled Substance, namely Cocaine (4-200 grams) as charged in the indictment.@  The actual jury verdict was as follows: AWe, the jury, find [appellant] guilty of the offense of possession of a controlled substance, namely cocaine with intent to deliver (4-200 grams), as charged in the indictment.@  We have the authority to correct and reform a judgment of a trial court to make the judgment consistent with the record.  St. Julian v. State, 132 S.W.3d 512, 517 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.CHouston [1st Dist.] 2001, no pet.).