Gregory William Lappert v. State ( 2001 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
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NO. 03-00-00197-CR
NO. 03-00-00198-CR
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Gregory William Lappert, Appellant
&
Laurie Jo Lappert, Appellant
v.
The State of Texas, Appellee
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FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 9312 & 9313 HONORABLE H. R. TOWSLEE, JUDGE PRESIDING
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Appellant Gregory William Lappert was convicted on his plea of guilty of
possessing with intent to deliver more than four grams but less than 200 grams of
methamphetamine. See Tex. Health & Safety Code Ann. §§ 481.102(6), .112(a), .112(d) (West
Supp. 2001). The trial court assessed his punishment at imprisonment for ten years and a fine of
$5,000. Pursuant to a plea bargain agreement, imposition of sentence was suspended and
appellant was granted community supervision.
Appellant Laurie Jo Lappert was convicted on her plea of guilty of possessing more
than four grams but less than 200 grams of methamphetamine. See id. §§ 481.102(6), .115(a),
.115(d) (West Supp. 2001). The trial court assessed her punishment at imprisonment for six years
and a fine of $5,000. Pursuant to a plea bargain agreement, imposition of sentence was suspended
and appellant was granted community supervision.
We affirm the judgments.
In their sole point of error, appellants assert that the trial court erred in refusing to
grant their motion to suppress evidence obtained in a search of their home. Officers armed with
a search warrant searched appellants’ home and seized methamphetamine. Appellants contend that
the affidavit upon which the magistrate issued the warrant contained conclusory statements not
showing probable cause for issuance of the search warrant. We quote appellants’ summarized
argument appearing in their appellate brief:
The affidavit in this case did not reflect probable cause to search Appellant’s home.
Although the informant’s reliability is attested to in general terms, the informant
is not alleged to have any training or experience as far as identifying
methamphetamine or knowing how it is manufactured. Without details as to
exactly what the informant saw or any information as to his experience with
methamphetamine, the affidavit simply does not reflect what the basis for his
knowledge was. The “facts” alleged are, in short, merely conclusory allegations.
Moreover, the affidavit is not saved by virtue of the alleged supervised buys.
There is no mention in the affidavit of whether the so-called “useable” amounts
were field-tested positive. Without such an allegation or some kind of
corroboration showing that the informant actually purchased methamphetamine, the
magistrate lacked a substantial basis for issuing the warrant. Moreover, even if the
informant did make such purchases, the purchases were not connected in any way
to Appellant’s home.
Whether the facts alleged in a probable cause affidavit sufficiently support a search
warrant is determined by examining the totality of the circumstances. Illinois v. Gates, 462 U.S.
213, 228-29 (1983); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996);
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Hackleman v. State, 919 S.W.2d 440, 447 (Tex. App.—
Austin 1996, pet. ref’d untimely filed).
The probable cause determination is simply a practical common sense decision whether, given the
circumstances described in the affidavit, there is a fair probability that contraband will be found
in a particular designated place. Hackleman, 919 S.W.2d at 447. “The allegations are sufficient
if they would ‘justify a conclusion that the object of the search is probably on the premises.’”
Ramos, 934 S.W.2d at 363 (quoting Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App.
1986)). “The magistrate is permitted to draw reasonable inferences from the facts and
circumstances alleged.” Id. Accord Gish v. State, 606 S.W.2d 883, 886 (Tex. Crim. App.
1980). In determining whether an affidavit for a search warrant shows probable cause, a
reviewing court looks to the four corners of the affidavit. Massey v. State, 933 S.W.2d 141, 148
(Tex. Crim. App. 1996); Doescher v. State, 578 S.W.2d 385, 387 (Tex. Crim. App. 1978);
Hackleman, 919 S.W.2d at 447; Carroll v. State, 911 S.W.2d 210, 216 (Tex. App.—
Austin 1995,
no pet.). Other than the affidavit upon which the warrant was issued, evidence adduced at the
suppression hearing does not factor into the assessment of whether the affidavit shows probable
cause. Massey, 933 S.W.2d at 148. The information alleged in a search warrant affidavit need
not “match in quality or quantity the evidence necessary to obtain a conviction. ” Janecka v.
State, 739 S.W.2d 813, 823 (Tex. Crim. App. 1987).
Although evidence other than the affidavit was offered on the hearing of the motion
to suppress, the determination of probable cause for the issuance of the search warrant must be
ascertained from the face of the affidavit alone. A district judge, acting as a magistrate, issued
the search warrant based on an affidavit which in pertinent part stated:
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5. AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY
REASON OF THE FOLLOWING FACTS:
Your Affiant is employed as a commissioned Peace Officer by the Fayette
County Sheriff’s Department and has been for the past twenty-two months. Your
Affiant is currently assigned as an Investigator to the Capitol Area Narcotics Task
Force. Your Affiant has over 24 years of law enforcement experience and has
been involved in numerous narcotics investigations as found in the provisions of
the Health and Safety Code, Title 6, Chapter 481, Texas Controlled Substance Act
during this time.
Affiant has observed cocaine, marijuana, Methamphetamine and other
illegal narcotics in these investigations, and is aware of how they are packaged for
sale, transportation, and used. Affiant knows that narcotics dealers keep books,
tally sheets, and ledgers, both written and computerized, as well as receipts, bank
records, money orders, photographs, videos, and other papers relating to the
manufacture, cultivation, transportation, sale, and distribution of illegal controlled
substances. Affiant is also aware that narcotic dealers keep large amounts of
currency in their residences and vehicles. Affiant is also aware that narcotic
dealers frequently keep firearms for the protection of their narcotics and the
proceeds of their illegal activities.
Information has been given to your Affiant by a Confidential Informant,
hereafter referred to as CI, for security reasons, regarding Methamphetamine being
possessed at the residence listed above. The aforementioned CI has provided
information regarding narcotics trafficking and transactions to your Affiant in the
past that has been proven to be true and correct.
Within the past 72 hours the CI observed Methamphetamine inside the
residence of Gregory Lappert and Laurie Lappert. The CI stated that Greg Lappert
and Laurie Lappert manufacture (cook) Methamphetamine at said location on West
McDonald Lane. On two separate occasions within the past thirty-five days, the
C.I. under the supervision of the Affiant has purchased a useable amount of
Methamphetamine from Gregory Lappert. The C. I. informed this Affiant that the
C.I. has observed Gregory Lappert and Laurie Lappert manufacture (cook)
Methamphetamine at the aforementioned residence on West McDonald Lane on
more than one occasion. Affiant has received information from the Texas
Department of Public Safety Narcotics Division that both Gregory Lappert and
Laurie Lappert have been suspected in narcotics trafficking, namely
Methamphetamine since 1997.
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Appellants argue specifically that this affidavit is insufficient to show probable
cause because it fails to show that the informer had training and experience in identifying
methamphetamine and in knowing how it is manufactured. The Court of Criminal Appeals has
answered a similar contention as follows:
In Torres v. State, 552 S.W.2d 821 (Tex. Crim. App. 1977), this Court, citing
Pecina v. State, 516 S.W.2d 401 (Tex. Crim. App. 1974), held that an affidavit
need not state an informer’s qualifications to identify heroin.
“. . . Further, the allegation that the informer had given information in the past
‘regarding narcotic traffic’ which had proven to be correct, when interpreted in a
realistic and common sense manner, indicates the informer’s familiarity with
controlled substances.” Torres v. State, supra, at 824.
Palmer v. State, 614 S.W.2d 831, 833 (Tex. Crim. App. 1981). Accord Carroll, 911 S.W.2d at
217; Vega v. State, 662 S.W.2d 667, 671 (Tex. App.—
Houston [1st Dist.] 1983), aff’d, 707
S.W.2d 557 (Tex. Crim. App. 1986); Bevers v. State, 649 S.W.2d 147, 150 (Tex. App.—
Fort
Worth 1983, no pet.). We find appellants’ argument without merit.
Appellants also contend that the statement in the affidavit that the informer made
supervised buys of methamphetamine is of no value in showing probable cause because there was
no mention that the purchased substance “field-tested positive” for methamphetamine. Affiant
stated that “the C. I. under the supervision of affiant has purchased a useable amount of
methamphetamine from Gregory Lappert. ” Affiant made this statement under oath in an official
proceeding authorized by law. If the affiant’s statement were untrue, that is, the substance
purchased was not methamphetamine, affiant would have committed the criminal offense of
perjury. In these circumstances, applying a common sense meaning to the affiant’s statement that
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methamphetamine was purchased from appellant Gregory Lappert, the magistrate could reasonably
believe that the substance purchased from appellant Gregory Lappert was methamphetamine. In
determining whether there was probable cause for issuing the warrant, the magistrate was dealing
with reasonable probability not requiring proof beyond a reasonable doubt. Appellants’ complaint
that the affidavit did not state the substance purchased from Gregory Lappert “ field-tested positive”
for methamphetamine does not give a common sense meaning to the statement that
methamphetamine was purchased from appellant Gregory Lappert. We also find this contention
is without merit.
What were the sworn facts and circumstances presented to the magistrate in the
affidavit? The veteran law enforcement officer who had investigated many controlled substances
violations swore that: (1) he had been informed by other responsible law enforcement officers that
both appellants had been suspected of trafficking in methamphetamine since 1997; (2) he had
supervised a proven confidential informer in making two recent purchases of methamphetamine
from appellant Gregory Lappert; and (3) he had been told by the proven confidential informer that
within the last seventy-two hours the informer had been on the premises where he saw
methamphetamine and the appellants manufacturing (cooking) methamphetamine. These facts and
circumstances sworn to by the affiant and the inferences that may legitimately be drawn from such
facts and circumstances, when considered by the magistrate in a practical common sense way,
assured the magistrate that there was a fair probability that methamphetamine would be found on
the premises.
Regardless of whether we review the sufficiency of the warrant affidavit de novo;
see Wynn v. State, 996 S.W.2d 324, 326-27 (Tex. App.—
Fort Worth 1999, no pet.); Lane v. State,
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Dallas 1998, pet. ref’d); Wachter v. State, 961 S.W.2d 598, 600
971 S.W.2d 748, 752 (Tex. App.—
(Tex. App.—
San Antonio 1997, pet. ref’d); or we apply the abuse of discretion standard of review,
see State v. Bradley, 966 S.W.2d 871, 873-74 (Tex. App.—
Austin 1998, no pet.); Daniels v. State,
Houston [14th Dist.] 1999, no pet.); Barton v. State, 962 S.W.2d
999 S.W.2d 52, 54 (Tex. App.—
132, 134-38 (Tex. App.—
Beaumont 1997, pet. ref’d), we conclude that the magistrate properly
issued the search warrant, and that the trial court did not err in refusing to grant appellants’ motion
to suppress. The point of error is overruled.
The judgments are affirmed.
__________________________________________
Carl E. F. Dally, Justice
Before Chief Justice Aboussie, Justices Kidd and Dally*
Affirmed
Filed: January 11, 2001
Do Not Publish
*
Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
Tex. Gov’t Code Ann. § 74.003(b) (West 1998).
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