* OFFENSE: Possession of Controlled Substance
* COUNTY: Johnson
* COURT OF APPEALS: Waco 2010
* C/A CITATION: Not Designated for Publication
* C/A RESULT: Conviction Affirmed
* CCA CASE No. PD-1551-11
* DATE OF OPINION: February 15, 2012
* DISPOSITION: Court of Appeals Reversed
* OPINION: Price, J
* VOTE: 8-1
* LAWYERS: L. Patrick Davis (Defense); David Vernon (State)

Ed Note: (Background Facts/ Traffic Stop) Investigator Brent Dickey of the Johnson County STOP Special Crimes Unit that, on August 8, 2007, he was in an undercover vehicle conducting surveillance of the Appellant's home in Alvarado. Dickey observed Appellant leave the house in a car, and he followed as Appellant drove toward Burleson. Dickey was familiar with Appellant and believed that there were active warrants for his arrest, a fact he confirmed by calling the warrants division of the Sheriff's Office. Not wanting to compromise his undercover status, Dickey called, via dispatcher, for a marked Burleson police car to stop Appellant based on the active arrest warrants. Officer John Morgan of the Burleson Police Department responded and initiated a traffic stop of Appellant, who proved not to have a driver's license. As Dickey stood by watching, Morgan then arrested Appellant on the basis of the outstanding warrants and his driving without a license. Performing a pat-down search of Appellant, Morgan found a metal cigarette tin in the pocket of his shorts containing several baggies of methamphetamine.

Ed Note: (Procedural History / Pre-Trial Hearing) At the hearing on Appellant's motion to suppress the evidence, defense counsel argued that the arrest warrants the State proffered in justification for Appellant's stop were invalid because the supporting documentation had not been executed until after the issuance of the warrants themselves. Both warrants were signed by Johnson County Justice of the Peace Pat Jacobs. One warrant authorized Appellant's arrest for the offense of driving with expired license plates. Although this warrant was signed on April 19, 2007, the police officer's affidavit in support of the warrant was not executed until May 1, 2007. The other warrant authorized Appellant's arrest for failing to appear in Judge Jacobs's court. This warrant was also signed on April 19, 2007. The complaint in support of this warrant was sworn out by a court clerk, and avers on its face that it was "filed" on April 19, 2007. However, the jurat, also signed by Judge Jacobs, is actually dated the next day, April 20, 2007. Appellant argued that, because the sworn documentation for both warrants post-dated the warrants themselves, the warrants could not legally support the initial stop that led to his arrest. The trial court denied the motion to suppress.

Ed Note: (Procedural History / Trial) On the second day of trial, after Investigator Dickey and Officer Morgan had each testified during the State's case-in-chief, the prosecutor requested the trial court "to, in effect, re-open, supplement, whatever the case may be, the motion to suppress, for the record that you're able to consider so that it properly shows the truth and the facts in this case." Pursuant to this request, and over defense counsel's objection, the State was permitted to elicit testimony, outside the jury's presence, from Judge Jacobs. She testified that she was present on the date Appellant failed to appear, that the offense of failure to appear occurred in her view, and that she issued the warrant for failure to appear on the basis of this personal knowledge. At every stage, defense counsel objected to this supplementation of the motion-to suppress record. The trial court never expressly ruled on those objections. Nevertheless, in the findings of fact and conclusions of law that the State subsequently prepared, and the trial court signed, the trial court concluded that, because the failure-to-appear offense had occurred in Judge Jacobs's presence, the warrant that she issued for the appellant's arrest was expressly authorized under Article 45.103, C.Cr.P.

Ed Note: (Procedural History / Direct Appeal Proceedings) On appeal, the appellant challenged the trial court's denial of his motion to suppress. He argued, as he had at trial, that the arrest warrants did not comply with Article 15.03(a)(2), C.Cr.P., because the supporting documents were not executed until after the arrest warrants had issued. In an unpublished opinion, the Court of Appeals sidestepped Appellant's argument, holding that the trial court did not err in concluding that Article 45.103 allowed for Judge Jacobs's issuance of the arrest warrant without a sworn complaint for failure to appear and that the arrest warrant for that offense was valid. On this basis, the Court of Appeals concluded that the trial court did not abuse its discretion.

G&S 209 Trial Courts / Authority to Act (Reconsideration of Pre-Trial Rulings During Trial): On rehearing, Appellant complained that there was no legitimate evidence in the record to show that the failure to appear occurred in the presence of Judge Jacobs. He maintained that the trial court erred in reopening the suppression evidence during the course of the trial in order to allow Judge Jacobs to testify. The Court of Appeals denied the motion for rehearing in a memorandum opinion in which it acknowledged that, under Rachal v. State, 917 S.W.2d 799 (Tex.Cr.App. 1996)(see G&S, Vol. 4, No. 1; 01/25/1996), a reviewing court may consider evidence presented during trial that relates to a suppression issue only if the suppression issue is re-litigated before the fact-finder by consent of the parties. The Court of Appeals distinguished Rachal, however, noting that, in this case, the trial court had permitted Judge Jacobs to testify in the context of a reopening of the suppression hearing, outside of the jury's presence. On the strength of Montalvo v. State, 846 S.W.2d 133 (Tex.App. - Austin 1993), the Court of Appeals held that it was within the trial court's discretion to allow a mid-trial supplementation of the record on the motion to suppress. The Court of Criminal Appeals granted discretionary review whether the Court of Appeals erred in holding that Rachal does not prohibit a trial court from reopening evidence in order to revisit its ruling on a pretrial motion to suppress, outside the jury's presence, even after trial has commenced.

Holding: A trial court "may," but is not required to, resolve a motion to suppress evidence in a pretrial hearing under Article 28.01, C.Cr.P. In essence, a pretrial motion to suppress evidence is "nothing more than a specialized objection to the admissibility of that evidence." A pretrial ruling on such a motion is interlocutory in nature. As such, it should be regarded as just as much the subject of reconsideration and revision as any other ruling on the admissibility of evidence under Rule 104 of the Texas Rules of Evidence, which a trial court may revisit at its discretion at any time during the course of a trial. * * * [T]he trial court in this cause had the discretionary authority to reopen the hearing on the appellant's motion to suppress evidence, even mid-trial, to allow the State to present additional evidence in support of the trial court's initial, interlocutory ruling to deny the motion.

G&S 209 Trial Courts / Authority to Act (Consideration of Extraneous Evidence): The Court also granted review in order to determine whether, even assuming that it was permissible for the trial court to reopen the suppression hearing during trial to entertain additional evidence outside the jury's presence, the trial court properly considered Judge Jacobs's testimony that probable cause to issue the arrest warrant for failure to appear was based upon her personal knowledge when the face of the warrant itself indicated that Judge Jacobs's probable-cause finding was based, not on her personal knowledge, but on the court clerk's tardy complaint.

Holding: Because the arrest warrant for failure to appear, on its face, identified the source of probable cause as the clerk's defective complaint, the appellant argues, the four-corners rule prohibited the trial court from measuring the adequacy of probable cause against any other source of information. We disagree. The four corners rule applies not to a review of the face of the warrant itself, but to a review of the accompanying affidavit or complaint that purports to supply the probable cause necessary to issue the warrant. Unlike the case with a warrant affidavit, which must supply probable cause before it may validly serve to support the issuance of a warrant, there is no requirement that the face of the warrant itself identify the source for the issuing magistrate's finding of probable cause.

Concurring / Dissenting Opinions: Judge Meyers delivered a dissenting opinion, arguing "The warrants at issue here were defective, thus the trial court erred in denying Appellant's motion to suppress evidence gained from the invalid stop. The trial court did not adequately address the inconsistencies in the dates of the arrest warrants, nor were the court's findings supported by the evidence presented. The State did not fulfill its burden in proving the validity of the warrants during the initial suppression hearing, and the prosecutor's attempt to remedy the faulty hearing during trial should have been prohibited by the court."

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