John Michael Baker v. State ( 2006 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00091-CR

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JOHN MICHAEL BAKER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Fifth Judicial District Court

Cass County, Texas

Trial Court No. 2004-F-00091

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            Carrying with them a search warrant and the separate, detailed affidavit on which the warrant was based, officers entered and searched the home of John Michael Baker in Atlanta, Texas, finding and seizing numerous pieces of evidence associated with a suspected methamphetamine laboratory in Baker's home. The subsequent indictment against Baker charged him with manufacturing an analogue of methamphetamine. At trial, it was proven that the substances seized from the Baker home, in fact, contained methamphetamine. At trial, a jury found Baker guilty of manufacturing a controlled substance, resulting in a sentence of twenty years' imprisonment.

            Baker's appeal asserts first that the evidence is legally insufficient because of a purported material variance between the evidence at trial—proving manufacture of methamphetamine—and the indictment—charging manufacture of an analogue of methamphetamine. Baker also complains that the search and seizure was defective, in that the warrant failed to properly reference the supporting affidavit. We affirm the trial court's judgment because (1) any variance between the evidence at trial and the indictment is immaterial, and (2) the search warrant adequately incorporated the accompanying affidavit.

(1) Any Variance Between the Evidence at Trial and the Indictment Is Immaterial

            In his first point of error, Baker argues the evidence is legally insufficient because of a material variance between the offense charged and the evidence at trial. "A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). Only a material variance requires reversal. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

            Although Baker had been charged with manufacture of an analogue of methamphetamine, the evidence at trial showed all the substances tested actually contained methamphetamine. Karen Ream, a chemist for the Texas Department of Public Safety, testified that, although not all the compounds were in their final form, seven different items seized by the police contained methamphetamine.

            Section 481.106 provides that penalty group 1 includes controlled substance analogues. Tex. Health & Safety Code Ann. § 481.106 (Vernon Supp. 2006). A "controlled substance analogue" is defined as

(A) a substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, or 2; or

(B) a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, or 2.

Tex. Health & Safety Code Ann. § 481.002(6) (Vernon Supp. 2006). Baker argues the evidence is legally insufficient because the evidence established that the compounds were methamphetamine rather than analogues of methamphetamine.

            We agree with the State that no variance exists. While the statute distinguishes between controlled substances and controlled substance analogues, the plain language of the statute is sufficiently broad to include, within the definition of a controlled substance analogue, the relevant controlled substance. Obviously, a substance which is actually methamphetamine would have a chemical structure "substantially similar" to methamphetamine. Indeed, the structures would be identical. We do not believe the phrase "substantially similar" excludes a controlled substance from fitting within the definition of its analogue.

            Even if a variance exists, the variance would be immaterial. "[A] variance that is not prejudicial to a defendant's 'substantial rights' is immaterial." Gollihar, 46 S.W.3d at 247–48; see Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995); see also Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). And only a material variance will render the evidence insufficient. Fuller, 73 S.W.3d at 253.

            To determine whether a defendant's "substantial rights" have been prejudiced, we must consider two questions: whether the indictment, as written, informed the defendant of the charge sufficiently to allow him or her to prepare an adequate defense at trial, and whether prosecution under the indictment as drafted would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248. Baker's contention in this connection is simply that there is a variance; he makes no claim or showing of how the alleged variance prejudiced him. Because Baker has failed to show his substantial rights were prejudiced, the variance, if any, is immaterial.

            Viewed in a light most favorable to the prosecution, a rational juror could have found all the essential elements of the offense beyond a reasonable doubt. In a statement given to the investigating officers, Teresa Baker, Baker's wife, alleged that her husband had been "cooking" methamphetamine once or twice a week for approximately one year. In addition, Baker admitted, in his statement to the police, that he was in the process of "cooking" methamphetamine when arrested by the police. Seven different items seized from Baker's home contained methamphetamine in an amount greater than four grams but less than 200 grams. The evidence is legally sufficient. We overrule Baker's first point of error.

(2)  The Search Warrant Adequately Incorporated the Accompanying Affidavit

            At the time the search warrant was executed, the affidavit was not attached to the search warrant; and officers served on Baker only the warrant and the inventory of seized items. Baker argues the search warrant is insufficient because it fails to specifically describe the person, place, or thing to be searched. Although the supporting affidavit contains specific descriptions of the person, place, and items sought, Baker contends the affidavit was not properly incorporated into the warrant. According to Baker, the search therefore violated the United States and Texas Constitutions; see U.S. Const. amend. IV; Tex. Const. art. I, § 9; and the trial court erred in overruling his motion to suppress the fruit of the search. We disagree.

            A trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). We afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's findings are based on an evaluation of credibility and demeanor. Id. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo those questions not turning on credibility and demeanor. Hernandez v. State, 957 S.W.2d 851 (Tex. Crim. App. 1998).

            Based on various information sources not at issue here, Lisa Ahrens, a narcotics investigator for the Ark-La-Tex Narcotics Task Force, presented to a judge a detailed affidavit supporting her request for a warrant to search Baker's residence, accompanied by a proposed search warrant. After Ahrens swore that all the facts in the affidavit were true and signed the affidavit, the trial judge executed the verification form on the affidavit and signed the warrant. At that time, the affidavit was attached to the search warrant. In executing the search warrant, the police discovered numerous items suspected of containing methamphetamine, as well as chemicals and equipment commonly used to manufacture methamphetamine.

            Baker cites Groh v. Ramirez, 540 U.S. 551 (2004), as support for the proposition the search warrant is inadequate. In Groh, the search warrant did not describe the property to be seized or incorporate the detailed affidavit by reference. However, Groh noted "most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation and if the supporting document accompanies the warrant." Id. at 557–58. It is a well-established rule in Texas that, when a search warrant incorporates an attached affidavit, the documents should be considered together. Long v. State, 132 S.W.3d 443, 447 n.11 (Tex. Crim. App. 2004). Groh is clearly distinguishable from the facts of this case because the warrant in this case explicitly incorporates the affidavit by reference.

            Baker argues the language in the search warrant is so vague that no reasonable person would have notice of what affidavit is being incorporated. We disagree. The warrant refers to an "attached affidavit" and states the "said Affidavit is hereby made part hereof for all purposes as if fully copied herein." Ahrens testified the affidavit was attached to the warrant at the time it was presented to the judge, and both the warrant and the affidavit bear the judge's signature and the same date. While the language of the warrant may not be ideal in referring to the affidavit, it is sufficient to incorporate the affidavit. The description contained in an affidavit controls over the description contained in the warrant. Ashcraft, 934 S.W.2d at 735. Because the affidavit is incorporated, the warrant is adequate.

            We note the evidence at trial showed the affidavit was no longer attached to the search warrant when the search warrant was served on Baker. Even if the failure to provide the affidavit to Baker violates the Texas Code of Criminal Procedure, ministerial violations of the search warrant statutes do not vitiate the search warrant in the absence of a showing of prejudice. Id. (failure to physically attach affidavit does not invalidate search absent prejudice or harm); Turner v. State, 886 S.W.2d 859, 865 (Tex. App.—Beaumont 1994, pet. ref'd) (absent evidence of harm, failure to serve probable cause affidavit does not require suppression of evidence); see Roberts v. State, 963 S.W.2d 894, 903 (Tex. App.—Texarkana 1998, no pet.). Baker has failed to show he was prejudiced because the affidavit was not attached to the warrant when served.

            Because the warrant adequately incorporates the affidavit, and because Baker has not shown he was prejudiced by the failure to serve a copy of the affidavit on him, we overrule Baker's second point of error.

            We affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          August 1, 2006

Date Decided:             August 23, 2006

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