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Date: 03-09-2021
Case Style:
Roberto Griego Jimenez v. The State of Texas
Case Number: 14-19-00009-CR
Judge: Meagan Hassan
Court: Fourteenth Court of Appeals
Plaintiff's Attorney: Kim K. Ogg
Eric Kugler
Defendant's Attorney:
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Description:
Houston, TX - Criminal defense attorney represented Roberto Griego Jimenez with a Poss With Intent to Deliver a Controlled Substance charge.
DISSENTING OPINION FROM DENIAL OF
ENBANC RECONSIDERATION
I respectfully dissent from this court’s denial of reconsideration en banc
because:
1. the informant at issue:
(a) was a first-time informant;
(b)had secured a non-prosecution deal; and2
(c) had a material and relevant criminal history (including (i) a
conviction for fraudulent use/possession of identification that was
less than 10 years old;1
(ii) a conviction for possession of
controlled substances; and (iii) two convictions for crimes of moral
turpitude);
2. the officer’s affidavit omitted the foregoing facts about the informant;
3. said omissions are functionally treated as material misstatements
under this court’s precedents; and
4. the panel majority threatens the uniformity of this court’s decisions
with respect to (a) the fundamental constitutional right to remain free
from unreasonable searches and (b) our analyses under Franks.
See generally Tex. R. App. P. 41.2(c).
The officer who signed the search warrant affidavit failed to inform the
magistrate judge that he was using a first-time informant with a relevant criminal
history and a non-prosecution deal. These omissions are to be treated the same as
material misstatements for purposes of our Franks analysis. Islas v. State, 562
S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d); see also
Melton v. State, 750 S.W.2d 281, 284 (Tex. App.—Houston [14th Dist.] 1988, no
pet.) (“Such omissions are treated essentially the same as claims of material
misstatements.”) (citing Brooks v. State, 642 S.W.2d 791, 796-97 (Tex. Crim. App.
[Panel Op.] 1982); United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980); and
United States v. Park, 531 F.2d 754, 758-59 (5th Cir. 1976)). The omissions at
issue were material to the officer’s presentment of probable cause; therefore, the
warrant was invalid. Compare Islas, 562 S.W.3d at 196-97 (citing Aguirre v.
State, 490 S.W.3d 102, 109 (Tex. App.—Houston [14th Dist.] 2016, no pet.)) with
1 No known Texas court has addressed whether this particular crime is one of moral
turpitude. But see In re G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995,
no writ) (“Crimes involving moral turpitude are those that involve dishonesty, fraud, deceit,
misrepresentation, or deliberate violence.”) (emphases added and removed) (citing Duncan v.
Bd. of Disciplinary Appeals, 898 S.W.2d 759, 761 (Tex. 1995)). 3
Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (“[W]here the defendant makes
a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is necessary to the finding
of probable cause, the Fourth Amendment requires that a hearing be held at the
defendant’s request. In the event that at that hearing the allegation of perjury or
reckless disregard is established by the defendant by a preponderance of the
evidence, and, with the affidavit’s false material set to one side, the affidavit’s
remaining content is insufficient to establish probable cause, the search warrant
must be voided and the fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit.”).
It should not take binding precedent to convince the majority of this en banc
court that the officer’s omissions herein were unavoidably material. See State v.
Duarte, 389 S.W.3d 349, 355-56 (Tex. Crim. App. 2012) (“[T]he weight given to
the informant’s hope for lenient treatment on his own pending charges in return for
his ‘tip’ is inappropriate as that is the very characteristic that sets the citizeninformer apart from the informant ‘from the criminal milieu.’”) (emphases added);
see also id. at 356 (“The citizen-informer is presumed to speak with the voice of
honesty and accuracy. The criminal snitch who is making a quid pro quo trade
does not enjoy any such presumption; his motive is entirely self-serving.”); id. at
358 (“[T]ips from anonymous or first-time confidential informants of unknown
reliability must be coupled with facts from which an inference may be drawn that
the informant is credible or that his information is reliable.”) (emphasis added). Cf.
Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971) (“Without disrespect to the
state law enforcement agent here involved, the whole point of the basic rule so well
expressed by Mr. Justice Jackson is that prosecutors and policemen simply cannot
be asked to maintain the requisite neutrality with regard to their own 4
investigations—the ‘competitive enterprise’ that must rightly engage their singleminded attention.”). But for the officer’s material omissions, the magistrate judge
would have known his duty as a front-line guardian of Fourth Amendment
protections required additional analyses the officer’s material omissions precluded
him from conducting. While the subtleties and contours of such analyses assuredly
depend upon case-specific facts, no known authority suggests officers are
authorized to short-circuit mandatory and impartial analyses concerning
reasonableness under the Fourth Amendment via material omissions in search
warrant affidavits. This en banc court’s refusal to rectify the panel majority’s error
contravenes controlling authority and effectively authorizes material omissions in
search warrant affidavits, even when the information comes from a first-time
informant with a non-prosecution deal and undisclosed relevant convictions. Our
Constitution guarantees more.
Outcome: Based on the foregoing constitutional considerations, binding authorities,
and this court’s own decisions, I respectfully dissent from the denial of
reconsideration en banc because the panel majority threatens the uniformity of said
decisions while creating the extraordinary circumstance of an intermediate court of
appeals refusing to conduct basic Fourth Amendment analyses under binding
precedents.
Plaintiff's Experts:
Defendant's Experts:
Comments: