Jesse Dan Cates v. State of Texas ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Jesse Dan Cates

Appellant

Vs.                   No. 11-01-00090-CR -- Appeal from Stephens County

State of Texas

Appellee

                                       Opinion on Remand from Court of Criminal Appeals

The jury convicted Jesse Dan Cates of possession of more than 4 but less than 200 grams of methamphetamine in a drug-free zone.  The jury found the enhancement allegation to be true and assessed punishment at confinement for 25 years and a $10,000 fine.  We affirm.

This court originally found that the evidence was legally and factually sufficient to support the conviction, that trial counsel did not provide ineffective assistance of counsel, and that the trial court did not abuse its discretion in denying the amended motion to suppress and affirmed the conviction in an unpublished opinion on May 30, 2002.  The Court of Criminal Appeals held that the trial court abused its discretion by failing to conduct a Franks^[1] evidentiary hearing and reversed and remanded the appeal to this court.  Cates v. State, 120 S.W.3d 352 (Tex.Cr.App.2003).

On remand, this court abated the appeal and directed the trial court to conduct a Franks hearing.  The trial court has so done.  The reporter=s record from the hearing and a supplemental clerk=s record containing the trial court=s findings of fact and conclusions of law have been filed.

The basis of appellant=s contentions in his amended motion to suppress, at the trial, and on remand  is that West Central Texas Interlocal Crime Task Force Agent Marty Baker made deliberate false statements in his affidavit supporting the search warrant.  In his affidavit, Agent Baker stated that a confidential informant had observed, inside appellant=s residence, Willie Marie Hope Cates (appellant=s wife) and Donnie Hope (Willie=s brother) in possession of an off-white powder substance that Donnie said was methamphetamine.  Both at the trial on the merits and during the Franks hearing, appellant developed testimony  that Willie and Donnie were not together at the residence during the time period described in Agent Baker=s affidavit. 

At the Franks hearing, appellant offered the prior testimony of the five witnesses that he had called at the trial on the merits as Defendant=s Exhibit No. 1.  Then, appellant called Willie to testify.  Next, appellant testified.  After appellant finished presenting his evidence, the State offered Agent Baker=s prior testimony from the original suppression hearing as State=s Exhibit No. 1.  When the trial court asked if appellant had any objections to State=s Exhibit No. 1, appellant stated, ANo, Your Honor.@

Appellant now contends in his supplemental brief on remand that the trial court erred at the Franks hearing.  Appellant argues that Franks required the State to produce live testimony and contends that the admission of State=s Exhibit No. 1 resulted in the denial of his constitutional right to cross-examination.  We disagree.

In Franks, the Supreme Court stated:

[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant=s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit=s false material set to one side, the affidavit=s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks v. Delaware, supra at 155-56.

We disagree with appellant=s interpretation that Franks requires the State to produce live testimony at the hearing.  Franks places the burden on the defendant to first make a Asubstantial preliminary showing@ of a false statement and then establish at a hearing Aby a preponderance of the evidence@ the Aallegation of perjury or reckless disregard.@  Moreover, appellant affirmatively stated that he had no objection to the admission of State=s Exhibit No. 1, Agent Baker=s prior testimony.  This issue is overruled.

All of appellant=s arguments have been considered.  Each is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

July 21, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]Franks v. Delaware, 438 U.S. 154 (1978).