Susan Megwa v. the State of Texas ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00386-CR
___________________________
SUSAN MEGWA, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 362nd District Court
Denton County, Texas
Trial Court No. F-2014-2361-D
Before Sudderth, C.J.; Womack and Wallach, JJ.
Opinion by Chief Justice Sudderth
OPINION
I. Introduction
Evidence that Appellant Susan Megwa was running a “pill mill,” i.e., a
pharmacy that fills fraudulent prescriptions, led a jury to convict her of one count of
delivery of a controlled substance (hydrocodone, 28 grams or more but less than 200
grams), a second-degree felony, see Tex. Health & Safety Code Ann. § 481.114(a), (c),
and one count of diversion of a controlled substance (alprazolam), a third-degree
felony. See id. § 481.1285(b)(2), (c). The jury assessed Megwa’s punishment at 15
years’ and 10 years’ confinement, respectively, and a $10,000 fine for each offense,
and the trial court entered judgment and set her sentences to run concurrently. See
Tex. Penal Code Ann. § 12.33 (stating that second-degree felony punishment is 2 to
20 years’ confinement and up to a $10,000 fine), § 12.34 (stating that third-degree
felony punishment is 2 to 10 years’ confinement and up to a $10,000 fine).
In a single issue, Megwa complains that the trial court erred by refusing to
suppress the evidence obtained pursuant to a June 2014 search warrant, complaining
(1) that the failure to disclose material evidence about the credibility of Deneena
Broadnax, an informant, invalidated the warrant and (2) that a municipal court judge
signed the warrant after a district court judge had signed a similar warrant in May
2014, rendering the June 2014 search warrant invalid pursuant to Texas Code of
Criminal Procedure Article 18.01(d), which sets out the requirements for obtaining a
2
search warrant of a previously searched person, place, or thing. See Tex. Code Crim.
Proc. Ann. art. 18.01(d).
But the record reflects that Broadnax was not a confidential informant; instead,
she was an identified controlled-buy witness, and her credibility was not an issue in
determining probable cause to support the warrant’s issuance when the affidavit
contained independent facts that corroborated her information. Further, the June
2014 search warrant was for a separate offense supported by separate probable cause,
and construing Article 18.01(d) in the manner advocated by Megwa would lead to
absurdities the Legislature cannot have intended. Accordingly, we overrule Megwa’s
sole issue and affirm the trial court’s judgment.
II. Background
Megwa owned Meg’s Discount Pharmacy in Denton. On May 19, 2014,
Denton Police Investigator Rachel Fleming procured search warrants for the
pharmacy and for Megwa’s home, bank accounts, and vehicles from a district court
judge. In the affidavits supporting those warrants, Investigator Fleming averred that
there was probable cause to believe that Megwa had engaged in “diversion of
controlled substances for unlawful use” by “virtue of [her] profession or
employment” under Health and Safety Code Section 481.1285 and that Megwa and
her husband had engaged in money laundering under Penal Code Section 34.02. See
Tex. Health & Safety Code Ann. § 481.1285(b)(2); Tex. Penal Code Ann. § 34.02.
Investigator Fleming received permission to search for and seize a variety of items.
3
As a result of the May 2014 searches, police seized hard copies of prescriptions, a
surveillance system hard drive,1 drugs, U.S. and Nigerian currency, a cell phone,
computer equipment, a safe, some vehicles, cashier’s checks in amounts varying from
$1,600 to $119,668.74, and various documents.
Not quite a month later, on June 16, 2014, Investigator Fleming sought another
search warrant for the pharmacy. As she had in the May 2014 affidavits, Investigator
Fleming cited her experience in investigating financial crime cases.2 She identified
Megwa as a registered pharmacist and, as she had in May 2014, averred that Megwa
had “knowingly diverted to the unlawful use or benefit of another person a controlled
substance to which [she had] access by virtue of [her] profession or employment”
1
On November 4, 2014, Investigator Fleming sought a warrant to search the
pharmacy’s surveillance system. The same municipal court judge who signed the June
2014 warrant signed the November 2014 warrant granting that search, but Megwa
does not complain about this on appeal.
2
In both the May and June affidavits, Investigator Fleming stated that she had
been employed as a licensed peace officer since April 1998, that she had been an
investigator in the City of Denton Police Department’s Financial Crimes Unit from
January 2005 to April 2011, and that at the time of the affidavits, she had been
assigned to the Narcotics Unit as a “Diversion Investigator/Asset Forfeiture
Specialist.” She stated that she had been involved “in hundreds of cases related to
fraud, money laundering, identity theft, forgery, credit card abuse, narcotics
trafficking, prescription fraud[,] and diversion” and had investigated money
laundering cases related to narcotics trafficking and other criminal enterprises. She
further stated that she had “authored search and seizure affidavits in criminal cases
involving illegal financial activities and ha[d] attended law enforcement training
courses concerning the investigation of financial crimes and organized criminal
activities.”
4
under Health and Safety Code Section 481.1285. See Tex. Health & Safety Code Ann.
§ 481.1285(b)(2).
Investigator Fleming recited some of the facts that were included in her May
2014 affidavits3 and referenced the May search and arrest warrants before adding new
facts regarding a controlled buy she had arranged with Deneena Broadnax:
At about 0940 hrs on June 16, 2014[,] Deneena Broadnax entered
Meg’s Discount Pharmacy and asked Pharmacist Susan Megwa what she
had. Susan sold Broadnax quantity 120 hydrocodone-APAP 10-325 mg
for $360 cash with $120 owed. Broadnax did not have a prescription for
the hydrocodone-APAP 10-325 mg. Susan placed the hydrocodone-
APAP into a prescription bottle previously labeled as Broadnax’s
hydrocodone. According to Broadnax, Susan removed the hydrocodone
APAP-pills from a prescription bottle previously labeled for Louis Bell
which had not been picked up. As Broadnax was leaving, Your Affiant
watched as she was waved back inside. Broadnax advised[,] Megwa then
removed the top portion of a prescription label on a bottle of quantity
60 alprazolam 2 mg for Louis Bell and gave it to Broadnax[,] advising
Broadnax owed Megwa an additional $240 later in the afternoon.
Broadnax stated Megwa had Broadnax sign the controlled substances
pick-up log with her left hand in the initials “LB” for the delivery of the
alprazolam.
3
In both the May and June affidavits, Investigator Fleming stated that she had
“made several prescription fraud arrests in which the defendants were utilizing Meg’s
Discount Pharmacy because of the ease in getting the fraudulent or questionable
prescriptions filled.”
Investigator Fleming did not include in her June affidavit the following facts
that she had included in her May affidavit: information that she had received from
the Texas State Board of Pharmacy about Megwa’s prescription ratio and prices;
Megwa’s audio-recorded admission in 2013 that she had been providing Adderall, a
controlled substance, to a customer without a prescription; her research into Megwa’s
prescribing history obtained by accessing the Texas Department of Public Safety
Prescription-Access-in-Texas database records; and information she had acquired
through trash searches at the pharmacy and at Megwa’s home.
5
The affidavit contained no explanation of who Broadnax was or how she
became involved, but it did recite that alprazolam 2 mg and hydrocodone-APAP 10-
325 mg were listed on DEA controlled-substance schedules and that Investigator
Fleming had located May 5, 2014 prescriptions for Louis Bell for alprazolam 2 mg and
for hydrocodone-APAP 10-325 mg on Megwa’s dispensing report, which was seized
in the May pharmacy search. Investigator Fleming also listed three serial numbers
from the currency she had provided to Broadnax to make the buy and stated that she
had searched Broadnax prior to the transaction and had “monitored the transaction
assuring that Broadnax did not obtain the hydrocodone-APAP 10-325 mg or
alprazolam [2 mg] from any other sources.” In the affidavit, Investigator Fleming
asked for permission to search for and seize, among other things, prescription bottles
or labels bearing the name Louis Bell.
Investigator Fleming presented the affidavit to a magistrate judge,4 who signed
the warrant for evidence of unlawful diversion “or other violations of the penal laws
of this state” that might be found in the pharmacy. Prescription bottles, currency,
4
The magistrate judge had served as a judge “in some capacities” since 1985
and had reviewed “easily thousands” of affidavits for search warrants. See Tex. Code
Crim. Proc. Ann. art. 18.02(a) (setting forth grounds for issuance of search warrants).
We use “municipal court judge” and “magistrate judge” here interchangeably because
the judge signed the warrant as the presiding judge of the Denton Municipal Court of
Record No. 1 “as magistrate for Denton County.” See generally Tex. Code Crim. Proc.
Ann. art. 2.09 (defining “magistrate” to include “judges of the municipal courts of
incorporated cities or towns”).
6
prescription bottle labels, and other items and documents were seized during the
search.
Megwa moved to suppress the items seized in the June search,5 complaining
that Investigator Fleming had omitted key facts pertaining to Broadnax’s identity,
credibility, and criminal history and that the magistrate judge had lacked the statutory
authorization to issue the warrant because it was a subsequent search warrant. See
Tex. Code Crim. Proc. Ann. art. 18.01(d). After several hearings, the trial court
denied the motion, stating, as to the second argument, “[I]f you’ve got a new crime,
you can do a warrant and it’s not considered a subsequent warrant.”
III. Suppression
In her single issue, Megwa makes the same arguments that she raised in the trial
court. The State responds that Megwa has not met her burden under Franks v.
Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), to show by a preponderance of the
evidence that Investigator Fleming intentionally or knowingly, with reckless disregard
for the truth, made any misstatements or omissions in the June affidavit that would
affect the probable cause finding supporting the warrant’s issuance, and that the June
search warrant involved a new, separate offense from the earlier warrant and was
supported by separate probable cause, so it was not a “subsequent” warrant under
Article 18.01(d).
5
Megwa also sought to suppress the evidence obtained during the May searches
but has abandoned those complaints in this appeal.
7
The trial court held three suppression hearings, the first two of which were
evidentiary.6 At these hearings, the trial court heard the following evidence and
arguments set out below.
A. Hearing Testimony
1. May 20, 2014 Encounter
At the time of the first hearing, the June 16, 2014 incident report narrative by
Investigator Fleming, who had been a licensed peace officer for almost 21 years and
had been with the Denton Police Department since 1998,7 was admitted into evidence
and provided a detailed recitation of the history of Investigator Fleming’s connection
with Broadnax.
After the May 2014 search warrant was issued, Megwa’s pharmacy was under
surveillance. Investigator Fleming met Broadnax on May 20, 2014, during a traffic
stop after Broadnax had left the pharmacy. During the traffic stop, Broadnax was
found in possession of alprazolam in an unlabeled prescription bottle, and the labels
on her other prescription bottles did not match the contents. The traffic stop was
followed by a phone conversation between Investigator Fleming and Broadnax on
The hearings were held November 9, 2018; May 17, 2019; and September 27,
6
2019.
Over the course of her career, Investigator Fleming had been “a patrol officer,
7
a community resource officer, a financial crimes detective, a narcotics detective, a
patrol sergeant, a special events sergeant, and a detective-sergeant over family
services.”
8
June 13, 2014, in which Broadnax complained about the confiscation of her “psych
meds” and subsequent five hours of incarceration. Broadnax also told Investigator
Fleming that MHMR was treating her for schizophrenia, depression, and anxiety; that
she had started using crack cocaine at age nine; that she was chemically imbalanced;
and that she “ended up in the nut house for 21 days” after her hysterectomy.8
2. June 16, 2014 Undercover Buy
Sergeant Bobby Ray, who was the supervisor over special operations at the
time,9 informed Investigator Fleming that Broadnax was amenable to making a buy at
Megwa’s pharmacy, and he approved Investigator Fleming’s overall plan to have
Broadnax make the buy in exchange for dropping the misdemeanor Xanax10 charge
against her from the traffic stop.
On June 16, 2014, Broadnax arrived at the police station between 8:30 a.m. and
9:00 a.m. Investigator Fleming instructed her to buy controlled substances,
specifically hydrocodone, from Meg’s Pharmacy. Investigator Fleming searched
Broadnax’s purse, person, and car to ensure that Broadnax had no controlled
At the hearing Investigator Fleming testified that she did not recall this
8
information but did not dispute it, stating, “If it’s in the report, that’s what was said.”
Sergeant Ray retired in April 2019 after 35 years of service, 33 of which had
9
been with the Denton Police Department.
10
Alprazolam is the active ingredient in Xanax. Pruitt v. State, No. 02-18-00453-
CR, 2020 WL 5242422, at *1 (Tex. App.—Fort Worth Sept. 3, 2020, pet. ref’d) (mem.
op., not designated for publication).
9
substances on her already and put a button camera on her purse. Broadnax carried
with her an empty prescription bottle in her name.
Investigator Fleming said that she did not think Broadnax had any of her own
money when she went into the pharmacy. Instead, the police provided funds from
the “imprest fund account” after Investigator Fleming recorded the bills on a
photocopier so that she could track the serial numbers after the undercover buy.
Investigator Fleming followed Broadnax to the pharmacy and parked in the
parking lot across the street. There were already several other surveillance units
positioned around the pharmacy, and some of the officers and sergeants “were parked
directly across the street where they could see into the store” through the glass
windows. Investigator Fleming watched Broadnax enter the pharmacy and then leave
the pharmacy and return to her vehicle before “a hand waved her back” into the
pharmacy. After Broadnax returned inside the pharmacy and came back out again,
she entered her vehicle and left the parking lot. When Investigator Fleming called
Broadnax to remind her that they were to meet in a nearby Kroger parking lot,
Broadnax told her, “I got a double whammy.”
Investigator Fleming initially testified that Broadnax was inside the pharmacy
for a total of 10 to 15 minutes.11 Investigator Fleming said that she did not see
11
Later, a half a year after the first portion of the suppression hearing,
Investigator Fleming stated on cross examination that “[b]etween the two trips in, her
original trip in and being waved back in, I believe it was somewhere between 30 and
40 minutes total.”
10
anyone else go into the store. She also testified that she maintained visual surveillance
of Broadnax’s vehicle until she saw Sergeant Ray follow immediately behind it.
Sergeant Ray then followed Broadnax’s vehicle to the Kroger parking lot and stayed
with Broadnax until Investigator Fleming arrived.
When Investigator Fleming arrived at the Kroger parking lot, Broadnax’s
formerly empty prescription bottle was full of hydrocodone pills, and Broadnax had
also acquired a prescription bottle missing the upper half of the label (prescription
number and patient name) that was filled with alprazolam. Broadnax told her that
Megwa had filled her empty pill bottle with hydrocodone pills that Megwa had
removed from another bottle that was already in a fill bag waiting to be dispensed and
that Megwa had told Broadnax that she was going to owe her more money for the
pills.
Broadnax also told Investigator Fleming that after she was waved back into the
pharmacy, Megwa had torn off the top half of a pill bottle label and had directed
Broadnax to sign the dispensing log to indicate that the medication in the bottle had
been received by the real patient. Specifically, Megwa instructed Broadnax to use her
left hand to make the real patient’s initials so that it appeared that the patient had
picked it up. According to Broadnax, Megwa also told her that she owed more
money for the alprazolam and to bring the money that afternoon when she brought
the additional funds for the hydrocodone. Receiving the second, unanticipated
medication was the “double whammy” to which Broadnax had referred.
11
Investigator Fleming stated that this information was consistent with what she
had observed and that she had found the information reliable and trustworthy based
on how specific Broadnax had been about the name of the patient whose initials she
had signed. Based on that specificity, Investigator Fleming was able to locate the
patient’s name and medications in the dispensing log.
Investigator Fleming said she had no concerns that Broadnax had lied or had
obtained the pills from someone else or that anything else had happened inside the
pharmacy other than what Broadnax had told her. Nor did Investigator Fleming have
any concerns about Broadnax’s mental health ability to make the buy.12 Investigator
Fleming testified that she had presumed that Broadnax had a criminal history,
although she had not been aware of the specifics, because most informants have some
sort of criminal history. But she did not run Broadnax’s criminal history to confirm
her presumption.
3. Search Warrant Affidavit
Sergeant Ray, who had authored hundreds of search warrant affidavits during
his 35 years as a police officer, asked Investigator Fleming to author the search
warrant affidavit for the pharmacy even though he and other narcotics officers had
12
Investigator Fleming said that she had taken Broadnax at her word when she
self-disclosed being an MHMR patient and did not ask her about any medications she
was on for her mental health conditions.
12
more experience.13 She did not normally do controlled-buy affidavits; this one had
been her first. Investigator Fleming began putting together the affidavit as soon as
she returned to the police station using facts Broadnax had recounted about what had
happened inside the pharmacy during the undercover buy. Investigator Fleming
explained that she did not list all of the serial numbers on the bills given to Broadnax
in the affidavit because “[o]ther narcotics detectives who usually do controlled[-]buy
warrants advised that [she] didn’t need to list all of them.”
Information about the button camera, which was supposed to record the
pharmacy transaction, was also not included in the search warrant affidavit because
the video had malfunctioned.14 Furthermore, Investigator Fleming said that she had
been told by narcotics officers that a video is only required in confidential informant
operations, and Broadnax was named in the affidavit.
While Investigator Fleming had worked on hundreds of cases, only a few had
13
involved diversion of a controlled substance. Megwa’s case had been her second
diversion-of-a-controlled-substance case involving a pharmacist.
14
The trial court reviewed the video recorded by the button camera. The video
shows the dashboard of Broadnax’s vehicle as she drives to the pharmacy and her exit
from the vehicle with the camera on her purse. She enters the pharmacy, which has
glass windows in front, and parks her purse on a chair near the pharmacist’s window.
Her conversation at the pharmacist’s window is almost completely inaudible, and the
video shows only the hem of Broadnax’s dress, her calves, and her flip flops as she
stands at the pharmacist’s window. At approximately 8.5 minutes, Broadnax walks
back over to her purse but then continues to leave it on the chair while she waits at
the window. At approximately 15.5 minutes, Broadnax walks back over to her purse,
retrieves something, and returns to the pharmacist’s window. The video ends at 16
minutes and 40 seconds.
13
Investigator Fleming acknowledged that the June search warrant affidavit did
not mention how Broadnax, who had been acting not as a confidential informant but
rather in an “undercover capacity as an agent of the police,” had become involved in
the investigation. She also agreed that the affidavit did not contain any statements to
establish Broadnax’s credibility or reliability and that there was “backstory”15 she had
not included about Broadnax and her connection to the pharmacy.
Investigator Fleming acknowledged that none of Broadnax’s mental health and
medication information was in the June affidavit and agreed that she had not told the
magistrate judge about any of it. She stated that it had not occurred to her to put that
information in the search warrant affidavit because she did not consider the omissions
to be material “to what happened that day.” Investigator Fleming also stated that
while depression, anxiety, schizophrenia, and drug use may be relevant to a person’s
credibility, “in law enforcement, those are the people that are often utilized in
operations like this.” She stated, “I have never written a search warrant where I have
listed mental illnesses and addictions and things such as that.” Investigator Fleming
said that she did not think that Broadnax’s having self-disclosed as a psychiatric
patient would either assist or deter the magistrate judge in finding probable cause
15
Some of the background information about how Broadnax became involved
was recounted in the November 2014 search warrant affidavit for the pharmacy’s
surveillance system because Investigator Fleming wanted to search the system to see if
the May 2014 transaction between Broadnax and Megwa had been captured.
14
because “people who have mental health issues are perfectly capable of telling the
truth.”
Regarding probable cause, Investigator Fleming admitted that probable cause
hinged on Broadnax’s credibility, testifying as follows:
Q. You watched the video before you swore out the affidavit for
the search warrant, didn’t you?
A. Correct.
Q. And the video does not show anything that substantiates
paragraph five, the big thick paragraph on page 2 of the affidavit, does
it? You can’t see anything.
A. That is correct.
Q. So you have to take her word for it. Right?
A. I know she didn’t have the pills before she went in, and she
had the pills when she came out.
Q. I understand that, but that’s -- it’s not that simple, is it,
Detective? Because the whole crux of this is that Susan Megwa had to
deliver to her. That’s the whole crime you’re trying to investigate. That
Broadnax didn’t have it on before -- didn’t have it on her person. She
goes to the pharmacy. There’s a delivery, an illegal delivery, so she says.
She comes back out with the pills. You’ve got your PC if she’s to be
believed.
A. Correct.
Investigator Fleming denied that she had intentionally or recklessly misled the
magistrate judge by placing incorrect facts into the affidavit or by purposefully
omitting any information about Broadnax’s mental health or potential criminal history
to get him to sign the warrant.
15
Sergeant Ray testified that he spoke with Investigator Fleming about the search
warrant affidavit she had drafted after Broadnax made the controlled buy and that he
did not tell her to omit information about Broadnax’s psychological and mental health
history. He stated that he generally did not include an informant’s criminal history in
a search warrant affidavit because most of the time it was not relevant and that he did
not think Broadnax’s criminal history was relevant to the probable cause
determination in this case when there was other corroborating evidence. He
explained that if everything in an investigation was included in the affidavit, “the
affidavit would end up “be[ing] . . . 19 pages . . . [s]o you put in the relevant
information that establishes probable cause.” He also explained that there may be
relevant case information that is not necessarily relevant to establishing probable
cause and making the decision of what to include is up to the affiant. He reviewed
and approved Investigator Fleming’s affidavit but did not instruct her on what to
include or exclude.
4. Execution
The magistrate judge who had issued the June 2014 warrant explained that, in
comparison to other informants, a confidential informant provides information when
not being observed by a police officer, when “you’re going solely on the word, and so
you need to establish some degree of credibility.” By way of comparison, he noted,
“In the instance in which the person is identified and they’re being monitored or
watched, observed by the police officer and they can corroborate it and later
16
corroborate the information once they have contact with them again, I don’t think it’s
near as important.” He agreed that credibility is always a factor and that, to an extent,
the cooperating individual’s motivation could affect her credibility, but he said that in
this circumstance, the corroboration “gave [him] a certain level of assurance.” He
pointed out that the instant situation was a controlled buy: “They watched them go
in. They searched them before they went in. They searched them when they came
out.” That, plus corroborating facts regarding the May 5, 2014 prescription for Louis
Bell for alprazolam, provided credibility and “eliminate[d] some of the need that [he]
had to know . . . the background of the individual informant.”
The magistrate judge stated that he wanted to know information about a
cooperating witness’s criminal history and motivation when it related to the issues
inside the affidavit but said that he would not have time to look at a witness’s entire
criminal history. He also indicated that the mental health of an informant or anyone
else acting as an agent of the police was not a concern in every situation involving a
search warrant affidavit: “I suppose it depends on what their mental illness is”
because “80 percent of the people I speak to on a daily basis have some degree of
mental health issue” and “just because they receive mental health treatment through
MHMR does not mean they’re not credible.” In this case, he was not uncomfortable
that Investigator Fleming had failed to provide mental health information about
Broadnax, explaining that corroboration of the informant’s name made him feel
confident that the warrant issued on correct information:
17
You know, the only thing that seemed a little bit odd about it, that in
retrospect I wish I might have paid a little bit more attention, is this
name just appears, Broadnax or whatever. But, no, I don’t think -- did I
feel -- do I feel now after reading that report that I was misled? And the
answer is no.
5. Arguments
Megwa’s counsel argued that the omission of the facts that Broadnax had
mental problems, that she was “working off a case,” and that the police had
unsuccessfully tried to record the transaction were material and intentional omissions
to mislead the magistrate judge and that Investigator Fleming’s failure to ask
Broadnax whether she was on any medication made no sense when “[t]his whole case
is about meds” and the police had arrested her “for having a ton of medication in her
purse.”
The prosecutor then argued that there was no evidence that Investigator
Fleming had hidden Broadnax’s mental health information or criminal history from
the magistrate judge to mislead him. Megwa’s counsel retorted, “[D]o we actually
really think that she’s going to stand here and say, ‘Yeah, I intentionally didn’t put that
in there’? You’re never going to get that Perry Mason moment in any courtroom
these days.”
At the final pretrial hearing, defense counsel complained, among other things,
that the June search warrant was a subsequent search warrant under Article 18.01(d):
THE COURT: So your argument is because it was previously
searched, even though there’s new evidence of a new crime there, that
18
this is a subsequent search warrant simply because it was previously
searched.
[Defense counsel]: Yeah, exactly. I mean, I’m reading it verbatim.
I knew you were going to ask that question, and I asked [co-counsel] to
research it. There’s no case law that we can find that says a subsequent
search warrant may be issued under that section of the article, 18.02, to
search the same person, place, or thing, which is the same pharmacy, the
same pharmacist. Must be signed, if it’s under 18.02(10), again, by a
district judge. And obviously [the magistrate judge] is not a district
judge, a Court of Criminal Appeals judge, or a -- on the Supreme Court
or a court of appeals.
So we -- well, we -- the statute says it. I don’t see there to be any
distinction. I tried to find case law that says that it doesn’t -- there’s an
exception if there’s a new alleged offense. It’s in the code. It doesn’t
look like -- it looks like they just went to [the magistrate judge] and got
this because he was convenient.
I think it was -- but in any event, if I’m wrong and if there’s -- I
don’t know how to interpret it other than the way -- the plain language
of the statute. If the [L]egislature wanted a municipal court judge to be
able to do a subsequent search warrant, they would allow that, and they
didn’t. And, in fact, they specifically excluded it.
And that’s just the person they choose. That’s their luck.
Unfortunately, they didn’t go back -- I would have gone back to [the
district judge] if I were her, but they didn’t. And that, I believe, just
invalidates the entire search warrant. He did not have authority to sign it
in the first place.
The State responded with a citation to Albright v. State (Albright I), No. 05-92-
00006-CR, 1994 WL 462180, at *1 (Tex. App.—Dallas Aug. 23, 1994) (not designated
for publication), which we discuss below.16 The prosecutor relied on Albright I to
16
The Court of Criminal Appeals reversed Albright I on petition for
discretionary review and remanded the case to the Dallas court. See Albright v. State
(Albright II), No. 05-92-00006-CR, 1995 WL 500391, at *1 (Tex. App.—Dallas Aug.
19
support the State’s argument that when search warrants executed on the same
location are based on different offenses, are supported by different probable cause
affidavits, and describe different items to be seized, Article 18.01(d) does not
invalidate the second warrant. The prosecutor argued that after the May search
warrant issued, the police had done the controlled buy with Broadnax, new crimes—
the hydrocodone and alprazolam transfers to Broadnax—were committed, and money
laundering was not mentioned at all in the June search warrant affidavit. The
prosecutor stated, “I would argue that this is not a subsequent search warrant,” but
rather another search warrant that “just happens to be on the same location.”
The trial court concluded that “subsequent” in the statute modified “the crime
that you’re looking for” and that the statute’s intent was that with a new crime, a new
warrant can be issued without being considered a “subsequent warrant.”
B. Standard of review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact
23, 1995, pet. ref’d) (not designated for publication). In Albright II, the Dallas court
noted that the Court of Criminal Appeals had refused 22 of the appellant’s 24 points
but had vacated the Dallas court’s judgment and remanded the case for the Dallas
court to address the merits of two points that the Dallas court had concluded were
unpreserved. Id. One of those points involved suppression, see id. at *2–4, but not
the one discussed in Albright I upon which the State relies.
20
questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). When
reviewing the trial court’s ruling on a suppression motion, we must view the evidence
in the light most favorable to the ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
To suppress evidence lawfully obtained by a warrant based on an alleged
omission in the affidavit supporting the warrant, the defendant must establish by a
preponderance of the evidence that the omission was made knowingly, intentionally,
or with reckless disregard for the truth in an attempt to mislead the magistrate. Darby
v. State, 145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d).
C. Credibility
Megwa argues that Investigator Fleming relied on Broadnax’s credibility in
attempting to establish probable cause for the search and thereby demonstrated a
reckless disregard for the truth when she failed to disclose that Broadnax was being
rewarded for her cooperation through dismissal of her traffic violation and by not
being charged with possession of a controlled substance without a prescription; that
Broadnax “suffered from numerous mental illnesses including drug addiction[,] severe
depression[,] and schizophrenia”; and that Investigator Fleming “had no prior
experience with Broadnax as an informant by which to determine her reliability.”
21
However, the credibility at issue in the suppression hearing belonged primarily to
Investigator Fleming as the author of the affidavit in question.
The trial court considered Investigator Fleming’s credibility during her
testimony and determined that no omissions had been made knowingly, intentionally,
or with a reckless disregard for the truth in an attempt to mislead the magistrate judge.
We may not second guess that credibility determination. See Wiede, 214 S.W.3d at 24–
25 (stating, in the suppression context, that the trial judge is the sole trier of fact and
judge of the witnesses’ credibility and the weight to be given their testimony).
Further, as the magistrate judge pointed out during his testimony about the
affidavit, Broadnax had been identified by name in the affidavit and the credibility of
her allegations was supported by other facts, which were corroborated in the warrant:
• Investigator Fleming had made several prescription fraud arrests involving the
pharmacy;
• Megwa was the pharmacy’s only pharmacist;
• Megwa had previously been arrested in May 2014 for diversion of a controlled
substance, and the pharmacy had been searched at that time;
• Alprazolam and hydrocodone are controlled substances;
• Louis Bell had a prescription for alprazolam and hydrocodone based on the
dispensing report obtained in the May 20, 2014 search;
• The police provided the U.S. currency for Broadnax’s purchase of hydrocodone
without a prescription.
22
As the magistrate judge testified, such corroboration is what, in his experience, made
the affidavit credible. Accordingly, we overrule this portion of Megwa’s sole issue.
D. Article 18.01(d)
We begin this portion of our analysis with a review of the rules applicable to
statutory construction as set out by the Court of Criminal Appeals.
1. Statutory construction rules
According to the Court of Criminal Appeals, we are to apply a plain-language,
textualist approach with regard to statutory construction:
When we interpret statutes, we seek to effectuate the collective intent or
purpose of the legislators who enacted the legislation. In so doing, we
necessarily focus our attention on the literal text of the statute in
question and attempt to discern the fair, objective meaning of the text at
the time of its enactment. We follow this principle because (1) the text
of the statute is the law; (2) the text is the only definitive evidence of
what the legislators had in mind when the statute was enacted into law;
and (3) the Legislature is constitutionally entitled to expect that the
Judiciary will faithfully follow the specific text that was adopted. Our
duty is to try to interpret the work of our Legislature as best we can to
fully effectuate the goals they set out. Legislative intent isn’t the law, but
discerning legislative intent isn’t the end goal, either. The end goal is
interpreting the text of the statute.
In interpreting the text of the statute, we must presume that every
word in a statute has been used for a purpose and that each word,
phrase, clause, and sentence should be given effect if reasonably
possible. We do not focus solely upon a discrete provision; we look at
other statutory provisions as well to harmonize provisions and avoid
conflicts. When we are dealing with the passage of a particular act, . . .
we look to the entire act in determining our Legislature’s intent with
respect to a specific provision. And we construe a statute that has been
amended as if it had originally been enacted in its amended form,
mindful that the Legislature, by amending the statute, may have altered
or clarified the meaning of earlier provisions. “Time-honored canons of
23
interpretation, both semantic and contextual, can aid interpretation,
provided the canons esteem textual interpretation.”
But, most importantly, we read words and phrases in context and
construe them according to rules of grammar and common usage.
When a particular term is not legislatively defined but has acquired a
technical meaning, we construe that term in its technical sense. We may
consult standard or legal dictionaries in determining the fair, objective
meaning of undefined statutory terms, and legal dictionaries to
determine the meaning of undefined legal terms.
When the language of the statute is ambiguous or leads to absurd
results, we may consider extra-textual factors in construing the statute.
A statute is ambiguous when it may be understood by reasonably well-
informed persons to have two or more different interpretations. For
example, the statutory use of the word “table” can be ambiguous if it is
impossible to tell from context whether the statute refers to a breakfast
table or a numerical chart. Extra-textual factors that we may consider to
resolve ambiguity include: (1) the object sought to be attained by the
Legislature; (2) the circumstances under which the statute was enacted;
(3) the legislative history; (4) the common law or former statutory
provisions, including laws on the same or similar subjects; (5) the
consequences of a particular construction; (6) the administrative
construction of the statute; and (7) the title or caption, preamble, and
any emergency provision. Statutory construction is a question of law
that we review de novo.
Watkins v. State, 619 S.W.3d 265, 271–73 (Tex. Crim. App. 2021) (footnotes omitted).
Only if the statute is ambiguous or leads to absurd results can we look beyond the
text. Id. at 273.
2. “Literal Text”
Article 18.01(d) restricts what kind of property or items may be seized and how
a second search warrant may be obtained, stating,
Only the specifically described property or items set forth in a search
warrant issued under Article 18.02(a)(10) or property, items or
24
contraband enumerated in Article 18.02(a)(1), (2), (3), (4), (5), (6), (7), (8),
(9), or (12) may be seized. A subsequent search warrant may be issued
pursuant to Article 18.02(a)(10) to search the same person, place, or
thing subjected to a prior search under Article 18.02(a)(10) only if the
subsequent search warrant is issued by a judge of a district court, a court
of appeals, the court of criminal appeals, or the supreme court.
Tex. Code Crim. Proc. Ann. art. 18.01(d).
Merriam-Webster defines “subsequent” as an adjective meaning “following in
time, order, or place,” https://www.merriam-webster.com/dictionary/subsequent
(last visited August 30, 2021), while it defines “prior” as an adjective meaning “earlier
in time or order” or “taking precedence (as in importance),” https://www.merriam-
webster.com/dictionary/prior (last visited August 30, 2021). See Watkins, 619 S.W.3d
at 272–73 (providing for consultation of standard dictionaries to determine the fair,
objective meaning of undefined statutory terms). Merriam-Webster lists four entries
for “same” as an adjective: (1) “resembling in every relevant respect” or “conforming
in every respect”; (2) “being one without addition, change, or discontinuance:
IDENTICAL” or “being the one under discussion or already referred to”; (3)
“corresponding so closely as to be indistinguishable”; and (4) “equal in size, shape,
value, or importance.” https://www.merriam-webster.com/dictionary/same (last
visited August 30, 2021).
Thus, using the plain language approach, under Article 18.01(d), the issuance of
a search warrant under Article 18.02(a)(10) to search the identical person, place, or
thing subjected to a previous search warrant issued under Article 18.02(a)(10) can
25
occur only if the second Article 18.02(a)(10) search warrant is issued by the specific
judges authorized to do so in the statute. To understand why Article 18.02(a)(10) is
the focus of this subsection, we must examine the context of both Article 18.01(d)
and Article 18.02(a)(10).
3. Context
Article 18.01(d) is part of Chapter 18 of the Code of Criminal Procedure, which
governs search warrants. See generally Tex. Code Crim. Proc. Ann. arts. 18.01–.24.
Article 18.01(d) specifically references Article 18.02(a)(10), under which a search
warrant may be issued to search for and seize “property or items, except the personal
writings by the accused, constituting evidence of an offense or constituting evidence
tending to show that a particular person committed an offense.” Id. art. 18.02(a)(10).
“Search warrants issued pursuant to subdivision 10 of Article 18.02 are
‘evidentiary’ search warrants and subject to a number of requirements more stringent
than those applicable to other search warrants.” 40 George E. Dix et al., Texas
Practice: Criminal Practice & Procedure § 9:9 (3d ed. 2011) (noting that the basis for the
Legislature’s concern in making the distinction is unclear but likely because it
considered such warrants as particularly susceptible to abuse). The stricter standards
apply because of the distinction between “mere evidence” under Article
18.02(a)(10)—which “encompasses items or things that are subject to seizure only
because they are of potential evidentiary value to the state,” i.e., relevant to whether a
crime was committed or the perpetrator’s identity—and items “subject to seizure for
26
some other reason—such as [their] status as contraband or fruits or instrumentalities of
crimes,” under the other subsections of Article 18.02. Id.; see LopezGamez v. State, 622
S.W.3d 445, 456 (Tex. App.—Fort Worth 2020, pet. ref’d) (stating that “mere
evidence” refers only to those items sought and described in a warrant issued under
Article 18.02(a)(10)).17
Article 18.02(a)(10) is “a catch-all section that applies only when the other
articles do not.” State v. Young, 8 S.W.3d 695, 698–99 (Tex. App.—Fort Worth 1999,
no pet.) (holding that warrant was properly issued under Article 18.02(a)(9) when the
gun sought was alleged to be the instrument of the crime and remaining items were
properly seized as “plain view” evidence under subsections (a)(1)–(9) and (12), which
can be properly seized when not specifically mentioned in the warrant).
In contrast to subsection (a)(10), subsections (a)(1) through (a)(9), and (a)(12)
of Article 18.02, which sets out the grounds for issuance of a search warrant, pertain
to the search and seizure of other items that are more obviously connected to illegality
or crime, such as property acquired by theft, property specially designed for or
commonly used in committing crime and other such instruments, weapons, gambling
equipment, obscene materials, drugs and drug paraphernalia, and contraband, while
subsection (a)(11) permits the search and seizure of persons, and subsections (a)(13)
17
For a discussion of the evolution of Articles 18.01 and 18.02, see Reeves v.
State, 969 S.W.2d 471, 480–84 (Tex. App.—Waco 1998, pet. ref’d) (op. on reh’g),
which traces the statutes from 1965 forward, including the addition of Article
18.02(a)(10)’s “mere-evidence” provision.
27
and (a)(14) pertain to cell phones and data held in electronic storage. See Tex. Code
Crim. Proc. Ann. art. 18.02(a)(1)–(9), (a)(11)–(14); see also Foreman v. State, 613 S.W.3d
160, 164–65 (Tex. Crim. App. 2020) (“Other provisions of Article 18.02(a) authorize
the issuance of warrants to search for and seize, for example, stolen property, arms
and munitions, weapons, drugs, and instrumentalities of crime.”), cert. denied, No. 20-
1445, 2021 WL 1951874 (U.S. May 17, 2021).
Article 18.01 itself is full of limitations. See generally Tex. Code Crim. Proc. Ann.
art. 18.01(a)–(j). Subsection (a) of Article 18.01 defines “search warrant,” subsection
(b) sets out the requirement of setting forth sufficient facts to establish probable
cause, and subsection (b-1) establishes how a magistrate may consider information
submitted other than in a sworn affidavit. Id. art. 18.01(a), (b), (b-1)(1)–(5).
Subsection (c) of Article 18.01 sets out generally when an “evidentiary” warrant
may be issued under Article 18.02(a)(10) and restricts the type of judge who may issue
it:
A search warrant may not be issued under Article 18.02(a)(10) unless the
sworn affidavit . . . sets forth sufficient facts to establish probable cause:
(1) that a specific offense has been committed, (2) that the specifically
described property or items that are to be searched for or seized
constitute evidence of that offense or evidence that a particular person
committed that offense, and (3) that the property or items constituting
evidence to be searched for or seized are located at or on the particular
person, place, or thing to be searched. Except as provided by
Subsections (d), (i),[18] and (j),[19] only a judge of a municipal court of
Subsection (i) was amended in 2017 as a legislative fix for Chambers County
18
and has no bearing on this appeal other than its reiteration that “[t]his subsection is
not applicable to a subsequent search warrant under Article 18.02(a)(10).” Act of May
28
record or a county court who is an attorney licensed by the State of
Texas, a statutory county court judge, a district court judge, a judge of
the Court of Criminal Appeals, including the presiding judge, a justice of
the Supreme Court of Texas, including the chief justice, or a magistrate
with jurisdiction over criminal cases serving a district court may issue
warrants under Article 18.02(a)(10).
Id. art. 18.01(c); see LopezGamez, 622 S.W.3d at 456 (explaining that Article
18.02(a)(10)’s catchall provision does not grant unrestrained power but rather is
limited by Article 18.01(d)); Lindley v. State, 736 S.W.2d 267, 275 (Tex. App.—Fort
Worth 1987, pet. ref’d, untimely filed) (“It is readily apparent that [S]ection
[18.02(a)(]10[)] is reserved for evidentiary items which do not fit any of the categories
included in the first nine sections.”). Other subsections of Article 18.01 likewise
restrict its scope and application.20
24, 2017, 85th Leg., R.S., ch. 1035, § 1, 2017 Tex. Sess. Law Serv. 4075, 4075 (current
version at Tex. Code Crim. Proc. Ann. art. 18.01(i)); see House Committee on
Criminal Justice, Bill Analysis, Tex. H.B. 1727, 85th Leg., R.S. (2017),
https://capitol.texas.gov/tlodocs/85R/analysis/pdf/HB01727E.pdf#navpanes=0
(last visited August 30, 2021).
Subsection (j) pertains to issuance of a search warrant to collect blood
19
specimens and therefore has no bearing on the resolution of this appeal.
Subsection (e) of Article 18.01 sets out some other clear prohibitions with
20
regard to search warrants for media offices:
A search warrant may not be issued under Article 18.02(a)(10) to search
for and seize property or items that are not described in Article
18.02(a)(1), (2), (3), (4), (5), (6), (7), (8), or (9) and that are located in an
office of a newspaper, news magazine, television station, or radio station,
and in no event may property or items not described in Article
18.02(a)(1), (2), (3), (4), (5), (6), (7), (8), or (9) be legally seized in any
29
4. Case law
Few cases have interpreted Article 18.01(d), and none have been directly on
point with the facts of the instant case. We begin with Albright I and then review the
remainder in chronological order.
In Albright I, the appellant raised two dozen points in the appeal of his
conviction for the murder of a prostitute who was found dead after two other
prostitutes had been murdered in the same area in the same way. 1994 WL 462180, at
*1. Among his arguments, the appellant complained that items seized from his
search pursuant to a search warrant of an office of a newspaper, news
magazine, television station, or radio station.
Tex. Code Crim. Proc. Ann. art. 18.01(e). For the issuance of a search warrant to
photograph an injured child, see id. art. 18.021, subsection (f) of Article 18.01 sets out
additional specific requirements for establishing probable cause. Id. art. 18.01(f).
Subsections (g) and (h) of Article 18.01 set out limitations on issuance of search
warrants under Article 18.02(a)(12), including what kind of judge may issue them, and
Subsection (j) provides that any magistrate who is a Texas-licensed attorney may issue
a search warrant under Article 18.02(a)(10) to collect a blood specimen from someone
who has been arrested for driving while intoxicated and who refuses to submit to a
breath or blood alcohol test. Id. art. 18.01(g), (h), (j).
Other portions of Chapter 18 set out the required contents of a search warrant
issued under Chapter 18, Chapter 18A (“Detection, Interception, and Use of Wire,
Oral, and Electronic Communications”), or Chapter 18B (“Installation and Use of
Tracking Equipment; Access to Communications”). Id. arts. 18.04, 18a.001–.553,
18b.001–.553. Under Article 18.05, a magistrate may issue to a fire marshal, health
officer, or code enforcement official a search warrant to inspect a specified premises
for fire or health hazards, unsafe building conditions, or violations of any fire, health,
or building regulations, statutes, or ordinances. See id. art. 18.05. Chapter 18,
accordingly, appears to be a highly regulated system.
30
home21 should have been suppressed because police had previously searched his
home under an earlier warrant. Id. at *7. At the time, Article 18.01(d) provided that
“subsequent search warrants may not be issued pursuant to article 18.02(10) to search
the same place subjected to a prior search under that section.” Id. at *8.
The Dallas court observed that the two search warrants executed at the
appellant’s home were based on different offenses, were supported by different
probable cause affidavits, and described different items to be seized. Id. That is,
when the police executed the first search warrant, the affidavit stated that there was
probable cause to believe the appellant had tried to murder a woman by threatening
her with a gun and cutting her with a knife, and it authorized the police to seize only a
“medium size dark colored handgun and a small cutting instrument.” Id. The second
warrant’s affidavit stated that there was probable cause to believe that the appellant
had murdered three other women and authorized police to seize ten items that were
not previously listed in the first search warrant. Id. The court concluded that Article
18.01(d) did not apply to prohibit the later search based on these differences. Id. The
court also noted, however, that the first search warrant had been based on searching
for and seizing implements and instruments used in the commission of a crime as
described in Article 18.02(9), which prevented Article 18.01(d)’s application to
prohibit the second search anyway. Id.Police had searched several properties owned by the appellant and had seized
21
a number of items from those properties. Albright I, 1994 WL 462180, at *2.
31
Similar to the Dallas court’s denying suppression of evidence in Albright I, the
San Antonio court also denied suppression of evidence gathered under a subsequent
search warrant, explaining:
We do not believe the Legislature intended to prevent the State from
applying for a subsequent search warrant to seize evidence previously
observed while executing an earlier search warrant. We believe the evil
sought to be prevented by the Legislature was repeated general
exploratory searches of the same person, place or thing so as to
constitute harassment. The execution of a subsequent search warrant to
seize a particular item already observed would not constitute a search in
our opinion, particularly when the item sought to be seized is one kept
in plain view, negating an expectancy of privacy.
Gordon v. State, 640 S.W.2d 743, 755 (Tex. App.—San Antonio 1982, no pet.), abrogated
on other grounds by Reed v. State, 744 S.W.2d 112, 125 n.10 (Tex. Crim. App. 1988).22
In Lopez v. State, the Eastland court relied on the Gordon court’s reasoning to
reach a similar conclusion. No. 11-94-005-CR, 1995 WL 17212285, at *3 (Tex.
App.—Eastland Sept. 14, 1995, no pet.) (mem. op., not designated for publication).23
22
In Gordon, the subsequent warrant was based on knowledge that a police
officer had garnered in a previous search under a warrant. 640 S.W.2d at 755.
23
In Lopez, the police had learned from the appellant’s sister on June 28 that he
had told her that he had killed the victim at his home by cutting her throat with a
knife and that the knife was hidden under the bedroom carpet. 1995 WL 17212285,
at *2. Regarding the June 29 search warrant, the court stated, “It is clear that this was
an evidentiary search warrant issued pursuant to” Section 18.02(a)(10). Id.The next day, the appellant admitted in a written statement to police that he
had killed the victim by cutting her throat with a box cutter and told them that the
box cutter was still inside his home. Id. at *3. One of the officers who had
participated in the first search recalled having seen box cutters during the search, but
they had been left unseized because no one at that time believed they were connected
32
In Lopez, the appellant complained that the trial court had erred by denying his
motion to suppress under Article 18.01(d) when the police searched his house on June
29, 1992, pursuant to a search warrant and then searched it again pursuant to another
search warrant on July 9, 1992. Id. at *2.
The Eastland court agreed with the San Antonio court that “the evil sought to
be prevented by the [L]egislature in enacting Article 18.01(d) was repet[itive] general
exploratory searches of the same person, place, or thing so as to constitute
harassment,” but that a subsequent search warrant issued under a different subsection
of 18.02—section 18.02(a)(9)—was not a general exploratory search warrant and
therefore not prohibited by Article 18.01(d). Id. at *3; cf. State v. Flores, 856 S.W.2d
614, 615 (Tex. App.—Eastland 1993, pet. ref’d) (upholding suppression when then-
Article 18.01(d) stated that subsequent search warrants could not be issued under
subsection (10) to search the same person, place, or thing subjected to a prior search
under subsection (10)).
In 1996, the Court of Criminal Appeals addressed the question of subsequent
searches in Ramos v. State, 934 S.W.2d 358, 364 (Tex. Crim. App. 1996).24 Although
with the crime. Id. The police obtained the second warrant on July 9 to secure the
box cutter, knife, and shovel as “implements and instruments” used in the crime’s
commission under Article 18.02(a)(9) based on what the appellant himself had told
them about what he had used to kill the victim and where those items were located.
Id.24
In Ramos, the appellant was accused of murdering his wife and two youngest
children. 934 S.W.2d at 360. The appellant had executed a written consent to search
33
the opinion in Ramos was issued after the statutory amendment, the court construed
and applied the earlier version of the statute, which—under its plain language—
prohibited the issuance of any second warrants under Article 18.02(10). Id.In Ramos, the appellant complained, among other things, that the second search
warrant was invalid under Article 18.01(d), which at the time prohibited the issuance
of a second search warrant under Article 18.02(10). Id. at 364. The court noted that
the “any and all evidence relating to a homicide” language “clearly constitutes an
attempt to conduct a second evidentiary search,” but that the affidavit also requested
his home that led to the recovery of no useful evidence, and then he executed a
written consent to search his post office box, which revealed a phone bill and a
welfare check. Id. at 361. The welfare check conflicted with the appellant’s claim that
his family had fled to Mexico because they were guilty of welfare fraud. Id. at 361–63.
He also gave other conflicting accounts of their whereabouts. Id. at 361. A search
warrant to search the appellant’s home was later issued for “blood, clothing
containing blood, a weapon and/or object used in the commission of a murder, and
any and all evidence relating to a homicide and/or a kidnapping.” Id. During the
search, the police saw two hammers, discovered sacks of women’s and children’s
clothes and toys in the attic, noticed that the bathroom floor looked newly tiled, and
conducted various types of blood testing throughout the house. Id. at 362. They took
photographs of some of the items that they saw. Id. at 364.
The day after the first search, the appellant signed a written statement in which
he claimed to have found the bodies when he came home and then buried them
under the bathroom floor. Id. at 362. Police obtained another search warrant for the
home, seeking to search for the bodies and “any and all evidence relating to a
homicide.” Id. The affidavit in support of the second warrant recited all of the earlier
probable cause allegations and added the blood evidence retrieved in the first search
and the statements made by the appellant. Id. Pursuant to the second warrant, the
police seized the bodies, two pipe wrenches, two soil samples, a pair of scissors, a
ballpeen hammer, broken tile, burnt pieces of rope, a putty knife, a plastic container
of dried cement, tiles, and half of a post hole digger. Id.34
a search for and seizure of the victims’ bodies, i.e., “persons” under subsection (11) of
Article 18.02. Id. The court stated that if those bodies counted as “persons” under
the statute, then the impermissible parts of the warrant could be severed. Id.In construing “persons,” the court first observed that “persons” as used in the
statute did not have a clear and unambiguous meaning, and then examined the
circumstances of the statute’s enactment, its legislative history, and its title, preamble,
and emergency provision, all to no avail, before turning to the object sought by the
statute and the consequences of particular constructions. Id. at 364–65.
The court noted that other provisions of Article 18.02 permitted a search for
the fruits of a crime and that the “persons” provision might serve a similar function in
that it would clearly permit a warrant to be issued to search for kidnapping victims
who were still alive. Id. at 365. In both kidnapping and murder, the court reasoned,
“the human victim is the ‘fruit’ of the criminal activity,” and a narrow construction to
only live persons “would have the paradoxical effect of conferring greater protection
upon one who murders his victims than upon one who holds his victims alive for
ransom.” Id. Considering the potential paradox, the court determined that “persons”
under subsection (11) referred to both the living and the dead. Id. The court then
addressed whether the remaining items seized were either “plain view” or harmless
and overruled the appellant’s arguments. Id. at 365–66.
In considering the applicable case law, we must also note that how a warrant is
classified is a question of law determined by the warrant’s language and by the
35
statements made in the supporting affidavit. Jennings v. State, 531 S.W.3d 889, 893
(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); see Young, 8 S.W.3d at 697–98
(“[T]he classification of the warrant and the propriety of the resulting search and
seizure are legal determinations.”). If a warrant authorizes a search for both “mere
evidence” and items listed under another ground for search and seizure, then the
warrant is not a mere-evidentiary search warrant. Jennings, 531 S.W.3d at 893.25
5. Absurdity and legislative history
At least one commentator has observed that construing Article 18.01(d) strictly
by its plain language would inevitably lead to an absurd result. 40 Dix et al., supra,
§ 9:13. According to Professor Dix, to correct the “quite confusing language” in the
earlier version of Article 18.01(d), in 1995, the Legislature replaced the total
prohibition against subsequent evidentiary warrants for the same person, place, or
thing with a special limit—which judges could issue them.26 Id. He then identifies an
25
In Jennings, a child-pornography case, the police sought a warrant to seize
computers, related equipment, software, the forensic examination of any devices
seized, utility bills, rent receipts, addressed envelopes, keys to the premises, and data
or images of persons who appeared to be under the age of 18 engaged in sexual acts
or posed in a manner to elicit a sexual response. 531 S.W.3d at 891, 893 nn. 2–3. The
court concluded that the warrant was issued under Article 18.02(a)(8) and thus was
not a mere evidentiary warrant under Article 18.02(a)(10), even though some of the
items sought to be seized—like the utility bills—were not “property the possession of
which is prohibited by law.” Id. at 893.
26
The same commentator also pointed out that the special requirement is
triggered by a search pursuant to an evidentiary warrant, so issuing the evidentiary
warrant without a search will not trigger it, nor will a search conducted under a warrant
that is not an evidentiary warrant. 40 Dix et al., supra, § 9:13. He further noted that the
36
unintended consequence and potential absurdity of a plain-language interpretation of
the revised Article 18.01(d):
As it applies . . . the requirement, once triggered, is unqualified and
absolute. On its face, for example, the statute seems to say that once
premises—a “place”—are searched pursuant to an evidentiary warrant,
officers must obtain any subsequent evidentiary warrant for those
premises from a judge on the short statutory list. This requirement
appears to apply even if years have passed, the premises have been sold,
and the suspects now occupying the premises have no relationship to
those who were the target of the previous search pursuant to an
evidentiary warrant. It is unlikely that the [L]egislature intended that the
requirement apply this broadly, yet the statute provides no reasonable
way of limiting the requirement.
Id. The potential absurdity that Professor Dix reveals is that, for example, under
Article 18.01(d), the police could search a place for methamphetamine but then, ten
years later, could not search the same property for a dead body if the wrong judge was
asked to sign the search warrant.
We first note that such a hypothetical absurdity is not present under the facts
of this case. Instead, the second affidavit here involved a continuation of an ongoing
investigation over the course of weeks—not months—and did not involve crimes that
differ in their general manner and means of commission.
prohibition is only against the issuance of subsequent evidentiary warrants—i.e.,
warrants under Article 18.02(a)(10)—and no limit is imposed upon the issuance or
execution of search warrants authorized by other provisions of Article 18.02. Id.; see
also Thomas v. State, 352 S.W.3d 95, 104–05 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d) (op. on reh’g) (holding that when initial warrant was issued under Health
and Safety Code Section 821.022, Article 18.01(d)’s subsequent search warrant
requirements did not apply).
37
In considering Professor Dix’s observation, we follow the guidance of the
Court of Criminal Appeals in Watkins, by looking at the predecessor statute and the
legislative history. See 619 S.W.3d at 272–73.
As discussed above, Article 18.01(d)’s predecessor statute did not allow for the
issuance of a subsequent search warrant under Article 18.02(a)(10) at all:
Only the specifically described property or items set forth in a search
warrant issued under Subdivision (10) of Article 18.02 of this code or
property or items enumerated in Subdivisions (1) through (9) of Article
18.02 of this code may be seized. Subsequent search warrants may not
be issued pursuant to Subdivision (10) of Article 18.02 of this code to
search the same person, place, or thing subjected to a prior search under
Subdivision (10) of Article 18.02 of this code.
Act of May 12, 1977, 65th Leg., R.S., ch. 237, 1977 Tex. Gen. Laws 640, 640–41
(amended 1995) (current version at Texas Code Crim. Proc. Ann. art.18.01(d)). But in
1995, the Legislature tempered that prohibition by providing that a subsequent search
warrant could be issued under Article 18.02(a)(10) but only if issued by a particular
type of judge. Act of May 27, 1995, 74th Leg., R.S., ch. 670, § 1, 1995 Tex. Gen. Laws
3642, 3642–43; Ibarra v. State, 11 S.W.3d 189, 192 & n.4 (Tex. Crim. App. 1999).27
27
In the bill analysis of the 1995 amendment, the Senate Committee on
Criminal Justice noted that under the then-existing statute, the State could not seek
additional search warrants for the same person, place, or thing for evidence of a crime
once an evidentiary search warrant had been executed, “regardless of whether
probable cause exists for the subsequent search,” hindering law enforcement’s ability
to seek a second or subsequent search warrant when (1) new evidence was uncovered
after the execution of the first warrant; (2) through honest mistake or accident,
evidence was lost, contaminated, or otherwise rendered unusable (specifically
referencing blood samples); (3) new technology enabled testing unavailable when the
first warrant was executed; and (4) the initial evidentiary search warrant revealed
38
Magistrates are not included in the type of judge authorized to issue a subsequent
search warrant under Article 18.02(a)(10). See Tex. Code Crim. Proc. Ann. art.
18.01(d).
6. Analysis
Megwa argues that the statute’s plain language prohibited the magistrate judge
here from issuing the “subsequent” search warrant under Article 18.02(a)(10) to
search the same person, place, or thing subjected to the prior search under Article
18.02(a)(10). The State responds by referring us to Albright I and contending that
because the June search warrant involved a new, separate offense from the May
search warrant, and because the June search warrant was supported by separate
probable cause, it was not a “subsequent” warrant under the statute.
a. The Warrants
The May warrant for the pharmacy did not separately identify the subsections
justifying the search, but the incorporated affidavit listed subsections 18.02(a)(1),
(a)(7), (a)(8), (a)(9), (a)(10), and (a)(12). The return filed the next day listed the
following as having been seized: U.S. currency, prescription hard copies,
miscellaneous documents, a wallet belonging to an unknown person, identification, a
evidence of a crime unanticipated or unenumerated in the search warrant. Senate
Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1349, 74th Leg., R.S. (1995),
https://capitol.texas.gov/tlodocs/74R/analysis/html/SB01349H.htm (last visited
August 30, 2021). The amendment was added to provide “limited circumstances”
under which a subsequent evidentiary search warrant under Article 18.02(a)(10) could
be sought. Id.39
prepaid Visa gift card, a cell phone, a surveillance system hard drive with remote, a
Mercedes Benz e500, a Toyota Camry, and computer towers.
The June warrant for the pharmacy likewise did not separately identify the
subsections justifying the search, but the incorporated affidavit listed subsections
18.02(a)(8), (a)(9), (a)(10), and (a)(12). The return filed the next day reported that
police had seized “hard copy prescriptions, Cell phone, a quantity of US currency,
Miscellaneous documents relating to prescriptions.”
Setting aside for a moment subsection (a)(10), subsections 18.02(a)(8), (a)(9),
and (a)(12) cover, respectively, “any property the possession of which is prohibited by
law,” “implements or instruments used in the commission of a crime,” and
“contraband subject to forfeiture under Chapter 59 of this code.” See Tex. Code
Crim. Proc. Ann. art. 18.02(a)(8), (9), (12).28 If provisions besides subsection (a)(10)
apply, depending on the circumstances, this would prevent the application of Article
18.01(d)’s prohibition. See Jennings, 531 S.W.3d at 893; see also Ramos, 934 S.W.2d at
364 (severance); Lopez, 1995 WL 17212285, at *3 (holding second search not
prohibited when second warrant issued under Article 18.02(a)(9)’s predecessor).
Therefore, we begin our analysis by looking more closely at the warrants and
28
Subsection 18.02(a)(12) is subject to additional requirements, i.e., that the
“specifically described property or items that are to be searched for or seized
constitute contraband as defined in Article 59.01 of this code and are located at or on
the particular person, place, or thing to be searched.” Tex. Code Crim. Proc. Ann.
art. 18.01(g).
40
affidavits—or any part of them—to determine if they fall entirely under subsection
(a)(10).29 See Young, 8 S.W.3d at 697–98 (referencing the classification of the warrant
as a legal determination).
The May affidavit, which sought permission to search for and seize “all
contraband and evidence” pertaining to the diversion of controlled substances under
Health and Safety Code Section 481.1285, and to money laundering under Penal Code
Section 34.02, alleged to have been committed by Megwa and her husband, listed 30
categories of items with regard to the pharmacy, any locked safes found inside the
pharmacy, and three specifically identified vehicles. It contained a four-and-a-half-
page recitation of probable cause regarding the use of the vehicles to deliver drugs,
the quantity of hydrocodone pills and other controlled substances moving through
the pharmacy, and how Megwa and her husband had been using the pharmacy’s cash,
including their purchasing of at least one of the vehicles with those funds.
The June affidavit, to search for and seize “all contraband and evidence”
pertaining to the diversion of controlled substances under Health and Safety Code
Section 481.1285, listed 24 categories of items in connection with 10 probable cause
paragraphs alleging that Megwa had sold hydrocodone and alprazolam prescribed for
Louis Bell to Broadnax for cash. Of the 24 items listed in the June affidavit, 22 are
29
Megwa argues that the second search warrant “was issued at least in part
pursuant to Article 18.02(a)(10),” but she does not identify which parts and does not
otherwise explain how the other listed articles—(a)(8), (a)(9), and (a)(12)—do not
prevent the application of Article 18.01(d).
41
the same as those listed in the May affidavit: financial records, telephone records, cell
phones or other means of personal communication,30 identification documents,
financial instruments, calendars and diaries, email, keys, documents pertaining to safe
deposit boxes or property storage units, documents pertaining to real or personal
property ownership, all U.S. or foreign currency and coins,31 all photographs and
audio or video tapes, all controlled substances and dangerous drugs kept in violation
of the Health and Safety Code,32 all computer and computer-related equipment, all
computer programs and records,33 safes and their contents, any and all prescription
forms or pads, and “any other items of contraband.”
This 22-item overlap in the affidavits makes sense because one of the offenses
being investigated in the first affidavit—diversion of controlled substances—is the
A cell phone is subject to search and seizure under Article 18.02(a)(14). Tex.
30
Code Crim. Proc. Ann. art. 18.02(a)(14).
31
Any illegal funds obtained pursuant to the alleged offenses may have been
contraband subject to forfeiture under Code of Criminal Procedure Chapter 59,
subject to the probable cause requirement and specific descriptions referenced in
Article 18.01(g). See Tex. Code Crim. Proc. Ann. arts. 18.01(g), 18.02(a)(12),
59.01(2)(B)(i) (listing as “contraband” property of any nature that is used or intended
to be used in the commission of any felony under Health and Safety Code Chapter
481), (C) (listing as “contraband” the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision).
32
Article 18.02(a)(7) provides for the seizure of drugs. Tex. Code Crim. Proc.
Ann. art. 18.02(a)(7).
33
Article 18.02(a)(13) provides for seizure and search of electronic customer
data held in electronic storage. Tex. Code Crim. Proc. Ann. art. 18.02(a)(13).
42
same type of offense as listed in the second, although the manner and means of the
offense’s commission is more specific in the June affidavit, sets out different facts,
and occurred only after the May search. This distinction is highlighted by the two
different, additional items listed in the June affidavit: “Prescription bottle(s) or
prescription label(s) bearing name Louis Bell,” and “Pharmacy records.”
In contrast, the May affidavit sought nine additional items: telephone
answering machines and voice mail (including messages), corporate records, past and
future travel documents and records, wire transfer and other fund transmission
documents and records pertaining to U.S. currency or foreign funds, federal and state
tax records, all items classified as controlled substances on the DEA Schedule of
Controlled Substances I–V, a 2006 black Mercedes Benz e500, a 2008 black Mercedes
Benz 450, and a black 1998 Toyota Camry.34
Items to be seized under Article 18.02(a)(10) must be “specifically described
property or items.” Tex. Code Crim. Proc. Ann. art. 18.01(c); see also id. art. 18.01(g)
(requiring items that are to be searched for or seized as contraband to be specifically
described). The May affidavit specifically described the DEA-Schedule controlled
substances and the vehicles, while the June affidavit specifically described the Louis
Bell-labeled prescription bottles and labels and “pharmacy records.” Some of the
“pharmacy records” were probably items “constituting evidence of an offense or
34
The affidavit also identified the vehicles by their Texas license plate numbers,
but we do not include them because they are not pertinent to our analysis.
43
constituting evidence tending to show that a particular person committed an offense”
under Article 18.02(a)(10), but some equally might also have been “implements or
instruments used in the commission of a crime” because Megwa was accused of
diverting prescription medicines from the person for whom they were prescribed. See
id. art. 18.02(a)(9), (a), (10). And as footnoted above, many of the overlapping items
were subject to seizure under other provisions of Article 18.02. At best, then, neither
affidavit was purely “evidentiary” under Articles 18.02(a)(10) and 18.01(c).
b. Conclusion
In her reply brief, Megwa reminds us that the searches “were sought by the
same police officer as part of an ongoing criminal investigation, merely one month
apart, and pertained to the same alleged criminal activity, namely a pharmacist illegally
dispensing a controlled substance.” She argues that we should “apply a common
sense understanding of ‘subsequent’ search and suppress the evidence because the
second search was not authorized by the proper judicial authority.”
To the extent that both warrants could be considered entirely “mere
evidentiary” warrants under subsection (a)(10), we think that the flexible approach
presented by our sister courts in Albright I and Gordon presents the best resolution to
the “subsequent search warrant” language that would otherwise lead to absurd results.
That is, if the Legislature’s goal was to prevent repeated and harassing general
exploratory searches of the same person, place, or thing, then a specific search for
specific items relating to a new offense, supported by new probable cause allegations,
44
should not be foreclosed merely because the officer asks the wrong judge for the
warrant.
While it is the prerogative of the Court of Criminal Appeals to determine where
the line should be drawn, in our view, based on the limited case law and interpretive
commentary available to us, the line here should be drawn as the trial court drew it:
the subsequent offense occurred after the original search and the sponsoring affidavit
sought some specific, distinct items of evidence that were not only unrelated to the
May search but also unknown at the time of the May search.35 And when, as here, a
warrant is not purely “evidentiary” under Article 18.02(a)(10), Article 18.01(d)’s
“subsequent search warrant” restrictions do not necessarily foreclose the admission of
the evidence. See Young, 8 S.W.3d at 698–99; Lindley, 736 S.W.2d at 275; see also Ramos,
934 S.W.2d at 364; Jennings, 531 S.W.3d at 893. Accordingly, we conclude that the trial
court did not err by denying Megwa’s motion to suppress, and we overrule the
remainder of her sole point.
IV. Conclusion
Having overruled Megwa’s sole point, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
35
Further, the record reflects—as set out above—that the subsequent warrant
was not issued entirely under subsection (a)(10).
45
Publish
Tex. R. App. P. 47.2(b)
Delivered: September 2, 2021
46