Texas Judiciary Online - HTML Opinion

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT=20 AUSTIN

NO. 03-10-00253-CR

Michael Emack, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF SCHLEICHER = COUNTY, 51ST JUDICIAL DISTRICT

NO. 993, HONORABLE BARBARA L. = WALTHER,=20 JUDGE PRESIDING

O P I N = I O=20 N

Appellant Michael Emack pleaded no contest to an indictment = accusing=20 him of sexually assaulting a child. See Tex. Penal Code = Ann.=20 =A7 22.011(a)(2)(A) (West 2011). The district court adjudged = him guilty=20 and assessed punishment at seven years' imprisonment, as called = for in a=20 plea bargain agreement. Appellant brings forward twenty-one points = urging=20 that the trial court erred by overruling his pretrial motion to = suppress=20 evidence. We affirm the conviction.

BACKGROUND

The YFZ (Yearning for Zion) Ranch is a 1691-acre property near = Eldorado=20 in Schleicher County. Over two hundred persons lived on the ranch = in 2008,=20 all of them members of the Fundamentalist Church of Jesus Christ = of Latter=20 Day Saints (FLDS). Among the structures on the property were a = temple and=20 a temple annex, nineteen residential buildings, a school, a = clinic, a=20 warehouse, a water treatment plant, and several commercial = buildings.=20 County tax records reflected that the land and improvements were = owned by=20 a single entity, YFZ Land, LLC. The ranch property was not = subdivided, and=20 there was no evidence that any of the buildings were owned or = leased by an=20 individual. The ranch was fenced, and access to the property was=20 controlled by a locked gate, a manned guard house, and observation = points.

On March 29 and 30, 2008, six telephone calls were received by = the New=20 Bridge Family Shelter Crisis Hotline in San Angelo from a person = who=20 identified herself as Sarah Jessop Barlow. She told the shelter = workers=20 that she was sixteen years old, pregnant, and the mother of an=20 eight-month-old infant daughter. She said that she lived at the = YFZ Ranch=20 and was the fourth wife of Dale Barlow, who she said was sexually = and=20 physically abusive to her. She said that she wanted to leave the = ranch,=20 but she was afraid of the punishment she would receive if she were = caught=20 trying to escape.

The trial court found, and appellant does not dispute, that the = hotline=20 employees who took the March 29 and 30 telephone calls believed = that they=20 were genuine. In truth, however, the calls were a hoax. There was = no=20 sixteen-year-old mother named Sarah Jessop Barlow. Instead, the = calls were=20 made by a woman named Rozita Swinton, a resident of Colorado, who=20 apparently made the calls from that state. The hoax was discovered = on=20 April 13, 2008, after the searches in question had been = conducted.

The calls to the shelter hotline were reported to the = department of=20 family and protective services (DFPS) office in San Angelo and to=20 Schleicher County Sheriff David Doran. In turn, Doran reported the = calls=20 to Texas Ranger Brooks Long. On April 1, Long received the call = notes from=20 the shelter. He also received documents showing that in August = 2007, a=20 Dale Barlow had been placed on probation for three years following = a=20 conviction in Arizona for conspiring to commit sexual assault of a = minor.=20 On April 2, Long interviewed the shelter workers who had taken the = calls,=20 and on April 3, he received their signed affidavits describing the = contents of the calls.

Long applied for a search and arrest warrant later that day. In = summary, Long's probable cause affidavit stated:

=95 Long had been on the premises of the YFZ Ranch on several = occasions=20 and had observed the fences, guard house, and other security = measures=20 limiting access to the ranch. Long had spoken to Frederick Merril = Jessop,=20 who identified himself as the "authority" at the ranch and the = "point of=20 contact" for law enforcement and other government officials who = wanted=20 access to the ranch. Jessop had told Long that approximately one = hundred=20 persons lived on the ranch.

=95 On April 2, 2008, Long interviewed Alisa Thomas and Jessica = Carroll,=20 employees of the New Bridge Family Shelter in San Angelo. As part = of their=20 duties at the shelter, Thomas and Carroll answered telephone calls = to the=20 "crisis hotline" available for those persons in need of the = shelter's=20 assistance.

=95 Thomas told Long that on March 29, 2008, she had a = forty-two minute=20 conversation on the crisis hotline with a female caller who = identified=20 herself as Sarah. Sarah told Thomas that she was born on January = 13, 1992,=20 had an eight-month-old child, and was pregnant. She said that she = and her=20 child lived with her husband, the father of her child, on a ranch = in=20 Eldorado. Sarah told Thomas that her husband hits her and that she = would=20 get in trouble if anyone learned that she had called.

=95 Carroll told Long that on March 29 and 30, 2008, she had = multiple=20 telephone conversations on the crisis hotline with a caller who = identified=20 herself as Sarah Barlow, maiden name Sarah Jessop. Sarah told = Carroll that=20 she was sixteen years old, pregnant, and the mother of an = eight-month-old=20 child. She identified her husband and the father of her child as = Dale=20 Barlow, age forty-nine. She said that she lived with Barlow at the = YFZ=20 Ranch. She said that Barlow was physically and sexually abusive to = her.=20 Sarah said that she wanted to escape from the ranch with her child = but was=20 afraid to try because of the guard house at the gate. She said = that if she=20 was caught trying to leave the ranch she would be locked in her = room and=20 denied food. Sarah also described her fear of the outside world, = saying=20 that she had been told that outsiders would hurt her. During one = of the=20 calls on March 29, Sarah told Carroll that she wanted Carroll to = forget=20 she had called.

=95 Given Sarah's age and the age of her child, Long believed = that Dale=20 Barlow had penetrated Sarah's sexual organ with his sexual organ = when=20 Sarah was fifteen years old. Long said he "knows of no provision = under=20 Texas law for lawful marriage at the age of fifteen."

=95 Long confirmed through the sheriff that a Dale Barlow, born = November=20 5, 1957, had been arrested in Arizona in July 2005 for conspiracy = to=20 commit sexual conduct with a minor. In August 2007, Barlow had = been placed=20 on three years' probation for this offense.

=95 Long believed that Sarah Jessop, her child, and Dale Barlow = were=20 currently located at the YFZ Ranch. Long also believed that = medical=20 records and other information relevant to the age and true = identity of=20 Sarah Jessop, the birth of her child, and her marriage to Dale = Barlow=20 could be found at the ranch.

At 5:50 p.m. on April 3, 2008, the judge of = the 51st=20 District Court, sitting as a magistrate, signed a warrant to = search the=20 YFZ Ranch for records relating to the age and identity of Sarah = Jessop,=20 any pregnancy or child of Sarah Jessop, any marriage of Sarah = Jessop=20 to any party including Dale Barlow, and any marriage of Dale = Barlow=20 to any party including Sarah Jessop. The warrant also ordered = Barlow's=20 arrest.

Also on April 3, the DFPS filed a petition in the 51st District = Court=20 for an order in aid of investigation of a report of child abuse.=20 See Tex. Fam. Code Ann. =A7 261.303 (West 2008). Attached = to the=20 petition was the affidavit of Ruby Gutierrez, a department = caseworker,=20 describing the calls to the hotline and Dale Barlow's Arizona = conviction.=20 A few minutes after signing the first warrant, the judge signed an = order=20 giving the department investigatory access to Sarah Jessop Barlow = and her=20 infant daughter at the YFZ Ranch.

Later that evening, Texas Rangers and other police officers = acting=20 under the search warrant and DFPS caseworkers acting under the = order for=20 investigation entered the YFZ Ranch. The caseworkers immediately = began a=20 process of interviewing every female on the ranch between the ages = of=20 seven and seventeen. During these interviews, several of the girls = reported being married to, and mothers of children with, adult men = who=20 lived at the ranch. Some of them also stated that the men to whom = they=20 were married had other wives. On the morning of April 4, the = police began=20 a structure-by-structure search of the ranch pursuant to the first = warrant. They did not find Sarah Jessop Barlow and her infant = daughter, nor did they find Dale Barlow.^{=20
(1)} They = did,=20 however, observe evidence--several beds in the temple and marriage = records--tending to confirm the girls' descriptions of underage = sexual=20 activity and bigamy.

On April 6, 2008, = Long=20 applied to the judge of the 51st District Court for a second = search=20 warrant. The complete probable cause portion of Long's April 6 = affidavit=20 is attached as an appendix to this opinion. In summary, the = affidavit=20 stated:

=95 Long had been = on the=20 premises of the YFZ Ranch on several occasions, most recently on = April 4,=20 5, and 6, 2008, and had observed the fences, guard house, and = other=20 security measures limiting access to the ranch. Long had spoken to = Frederick Merril Jessop, who identified himself as the "authority" = at the=20 ranch and the "point of contact" for law enforcement and other = government=20 officials who wanted access to the ranch. Jessop had told Long on = April 4=20 that approximately two hundred fifty persons lived on the=20 ranch.

=95 On April 5, = 2008, while=20 conducting a search of the ranch pursuant to the first warrant, = Long saw=20 computers, vaults, and locked drawers inside the temple and temple = annex.=20 He also saw several beds in the temple, in one of which the linens = were=20 disturbed and there was a strand of what Long believed, due to its = length,=20 was female hair. He also saw a document indicating marriages = between one=20 man and over twenty wives.

=95 On April 6, = 2008, Long=20 spoke to three DFPS employees, Tina Martinez, Ruby Gutierrez, and = Rebecca=20 Baxter. Between April 4 and 6, Martinez, Gutierrez, and Baxter had = interviewed eight juvenile females living at the YFZ Ranch. During = these=20 interviews, the girls stated that they were in plural marriages = with men=20 at the ranch or knew others girls who were. They also stated that = they or=20 girls they knew at the ranch had given birth at age sixteen or=20 younger.

=95 On April 6, = 2008, Sheriff=20 Doran told Long that all the residents of the YFZ Ranch are = members of the=20 FLDS. Doran also told Long that on April 5, 2008, Doran spoke to a = confidential informer who was a former FLDS member and who had = given Doran=20 accurate information about the FLDS on more than twenty prior = occasions.=20 The informer told Doran that adult male FLDS members practice = polygamy,=20 that their brides are often under the age of sixteen, and that = there was a=20 bed in the temple in which the men engage in sexual activity with = the=20 underage brides.

The judge signed = the second=20 warrant at 10:15 p.m. on April 6. The warrant ordered a search of = the YFZ=20 Ranch for evidence of marriages between females under the age of = seventeen=20 and adult males, and of pregnancies and births by females = under the=20 age of seventeen. The warrant was = executed immediately.

Appellant and nine = other=20 individuals living at the YFZ Ranch were subsequently indicted for = sexual=20 assault of a child and bigamy. With the district court's = permission, the=20 ten defendants filed a joint motion to suppress evidence. = Following a=20 four-day hearing at which all the defendants were represented by = counsel,=20 the motion was overruled. Appellant subsequently entered his plea = to the=20 sexual assault indictment and was convicted. This appeal = followed.^{=20
(2)}

ISSUES PRESENTED

Appellant contends = that the=20 search of the YFZ Ranch pursuant to the April 6 warrant violated = his=20 rights under the First and Fourth Amendments, article I, section = 9, and=20 article 38.23. See U.S. Const. amends. I, IV; Tex. Const. = art. I,=20 =A7 9; Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005). He urges = that the=20 evidence seized during this search, which "revealed the identity = of=20 Appellant Emack and the evidence offered against him in the court = below,"=20 should have been suppressed. Appellant also contends that his=20 constitutional and statutory rights were violated by the initial = search of=20 the ranch pursuant to the April 3 warrant and the interviews = conducted by=20 DFPS caseworkers pursuant to the order in aid of investigation. He = argues=20 that the information obtained during the April 3 search and = interviews was=20 improperly used as "the basis for [the] second [April 6] = search=20 warrant which resulted in the seizure of the evidence used against = Appellant Emack." Appellant's reply brief adds, "What Emack has = sought to=20 suppress is the documentary evidence seized as a result of the = execution=20 of the second search warrant . . . ."

A trial court's = ruling on a=20 motion to suppress is reviewed for an abuse of discretion. = State v.=20 Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). This means = that=20 the ruling will be upheld if it is reasonably supported by the = record and=20 is correct under any applicable legal theory. Id. The = trial court=20 is the sole trier of fact and judge of the credibility of the = witnesses=20 and the weight to be given their testimony. State v. = Ross, 32=20 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman = v. State, 955=20 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give the trial court = almost=20 complete deference in determining historical facts, but we review = de novo=20 the trial court's application of the law to those facts. = Johnson v.=20 State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); = Carmouche v.=20 State, 10 S.W.3d 323, 327 (Tex. Crim. App. = 2000).

DFPS INTERVIEWS

In points of error = one, two,=20 three, and sixteen, appellant contends that the interviews of the=20 juveniles at the YFZ Ranch by DFPS caseworkers violated the Fourth = Amendment, article I, section 9, and article 38.23 because (1) the = petition for the order in aid of investigation contained a = material=20 misstatement of fact regarding the department's compliance with = the=20 statutory prerequisites for obtaining the order; (2) the petition = relied=20 on information, specifically the phone calls to the family shelter = hotline, obtained in violation of criminal statutes; and (3) the = DFPS=20 caseworkers exceeded the scope of their authority under the order = by=20 interviewing every female resident of the YFZ Ranch between the = ages of=20 seven and seventeen. In points of error four, five, and six, = appellant=20 contends that information obtained during the DFPS interviews was = the=20 fruit of these constitutional and statutory violations, was = improperly=20 used in the April 6 probable cause affidavit, and should be = disregarded in=20 determining whether there was probable cause to issue the April 6 = warrant.=20 We overrule all of these points because we conclude that appellant = does=20 not have standing to contest the legality of the = interviews.

The rights secured = by the=20 Fourth Amendment and article I, section 9 are personal. See = Rakas v.=20 Illinois, 439 U.S. 128, 139 (1978); Richardson v. = State, 865=20 S.W.2d 944, 948-49 (Tex. Crim. App. 1993). A defendant seeking to = suppress=20 evidence on the ground that it was obtained in violation of the = Fourth=20 Amendment or article I, section 9 must show that he personally had = a=20 reasonable expectation of privacy that the government violated.=20 Rakas, 439 U.S. at 139-40; Handy v. State, 189 = S.W.3d=20 296, 299 (Tex. Crim. App. 2006); Kothe v. State, 152 = S.W.3d 54,=20 59 (Tex. Crim. App. 2004); Richardson, 865 S.W.2d at = 948-49. The=20 same standing requirement obtains under article 38.23. Fuller = v.=20 State, 829 S.W.2d 191, 202 (Tex. Crim. App. 1992).

To establish his = standing at=20 the suppression hearing, appellant filed an=20 affidavit stating:

My name is Michael = Emack. .=20 . . I resided in a home on the YFZ Ranch, 2420 County Road 300 = (Rudd Road)=20 in Schleicher County, Texas on April 3, 2008 and on April 6, 2008, = when=20 law enforcement officers and agents of the State of Texas entered = the=20 Ranch and searched homes and buildings there. My home was entered = and=20 searched by law enforcement officers and agents of the State of = Texas on=20 those dates and afterward. . . . Numerous items belonging to me = were=20 seized from my home during these searches, including my = photographs, my=20 computers, my computer equipment, my computer storage devices, and = my=20 papers. I was the victim of the unlawful entry into, and searches = of, and=20 seizures from my residence on the YFZ Ranch that began on April 3 = and=20 April 6, 2008.

I have been a = member of the=20 [FLDS] all my life. Beginning April 3 and April 6, 2008, and = continuing=20 for several days, law enforcement officers and agents of the State = of=20 Texas entered various Church buildings on the YFZ Ranch, including = the=20 Temple, the Temple Annex, the Bishop's Office, the Bishop scribe's = office,=20 and the Big House, and seized computers, computer equipment, = computer=20 storage devices, religious records, papers, documents, books, = photographs,=20 and other items containing information about me. I was the victim = of the=20 unlawful entry into, and the searches of, and the seizures from, = these=20 Church buildings . . . .

Although the State = does not=20 question appellant's showing of standing to contest the validity = of the=20 searches conducted pursuant to the April 3 and 6 warrants, the = State=20 contends that appellant failed to establish his standing to = challenge the=20 interviews conducted by the DFPS caseworkers acting pursuant to = the order=20 in aid of investigation. The State argues that appellant failed to = show=20 that he had a reasonable expectation of privacy that was invaded = by the=20 interviews.

Responding to the = State's=20 argument, appellant concedes that he does not have vicarious = standing to=20 invoke the rights of the juveniles who were interviewed by the = DFPS=20 caseworkers. He asserts, however, that this is of "no consequence" = because=20 his challenge to the manner in which the interviews were conducted = is=20 merely "a predicate to the challenge of the subsequent search = warrant." If=20 by this appellant is asserting that he has standing to challenge = the DFPS=20 interviews because those interviews provided information used to = obtain=20 the second search warrant, the argument fails. For a defendant to = have=20 standing on a motion to suppress evidence, it is not sufficient = that he=20 "claims prejudice only through the use of evidence gathered as a=20 consequence of a search or seizure directed at someone else." = Jones v.=20 United States, 362 U.S. 257, 261 (1960); see also = Rakas, 439=20 U.S. at 132-33, 136-37 (rejecting "target" theory of standing);=20 Fuller, 829 S.W.2d at 201-02 (holding that defendant = did not=20 have standing under art. 38.23 to object to admission of evidence=20 unlawfully obtained from another person). That information learned = during=20 the DFPS interviews was used to obtain the second search warrant = does not,=20 in itself, give appellant standing to challenge the legality of = those=20 interviews.

Appellant further = argues=20 that he has standing to challenge the DFPS interviews because they = were=20 the fruit of his unlawful detention, and that of others living on = the=20 ranch, beginning on April 3 when the officers and caseworkers = arrived to=20 execute the first search warrant and the order in aid of = investigation.=20 Appellant argues by analogy to Kothe. In that case, = Kothe's=20 automobile was stopped by an officer who suspected that the = driver, Kothe,=20 was intoxicated. 152 S.W.3d at 58. The officer quickly = satisfied=20 himself that Kothe was not intoxicated, but he continued to detain = Kothe=20 and ultimately found drug paraphernalia in the car and heroin on = the=20 person of Kothe's passenger, Brantley. Id. Kothe moved to = suppress the heroin, claiming that his continued detention after = the=20 officer determined that he was not intoxicated was = constitutionally=20 unreasonable. The trial court granted the motion to suppress and = the State=20 appealed, urging that Kothe did not have standing to challenge the = search=20 of Brantley. Id. The court of criminal appeals held that = while=20 Kothe did not have a reasonable expectation of privacy in the = balloons of=20 heroin secreted in Brantley's clothing, he did have standing to = challenge=20 his own detention and any fruits of that detention, which under = those=20 facts included the search of Brantley. Id. at = 60-62.

As the court of = criminal=20 appeals noted in Kothe, it is critical to identify the = precise=20 government conduct being objected to, because this often will be=20 determinative of the standing issue. Id. at 60. In his = points of=20 error complaining of the DFPS interviews, appellant contends that = the=20 interviews, and the information they revealed, were the fruit of = unlawful=20 conduct by DFPS employees, to whom he argues the Fourth Amendment = applies.=20 See Roe v. Tex. Dep't of Protective & Regulatory = Servs., 299=20 F.3d 395, 401 (5th Cir. 2002). He contends that DFPS agents = violated the=20 Fourth Amendment, and also article I, section 9 and article 38.23, = by=20 making a false statement of material fact and using unlawfully = obtained=20 evidence in their petition for order in aid of investigation, and = by=20 thereafter exceeding the scope of their authority under the order. = These=20 contentions are not based on any assertion that appellant was = unlawfully=20 detained on April 3, and they do require a determination as to = whether or=20 not appellant was unlawfully detained in order to be = resolved.

The order in aid = of=20 investigation directed the "parent or person responsible" for the = care of=20 Sarah Jessop Barlow and her infant daughter to "immediately allow = an=20 authorized representative of the Department of Family and = Protective=20 Services to enter . . . [the YFZ Ranch] to interview and examine = the=20 children . . . ." Appellant did not claim to be the parent or = person=20 responsible for the care of any of the children interviewed by the = DFPS=20 caseworkers. In his affidavit in support of standing, appellant = affirmed=20 that he was a resident of the YFZ Ranch and a member of the FLDS, = that his=20 personal residence was searched and his personal property was = seized, and=20 that FLDS premises were searched and church property was seized.=20 Appellant's challenges to the manner in which the DFPS obtained = the order=20 in aid of investigation and to the scope of the interviews = conducted by=20 its caseworkers under the order are not based on any allegation = that the=20 conduct complained of violated appellant's asserted privacy = interests or=20 that the interviews were a fruit of a violation of those=20 interests.

Points of error = one through=20 three and, as applied to the DFPS order, points of error four = through six=20 and sixteen are overruled.

APRIL 3 WARRANT

In points of error = seven=20 through twelve, sixteen, and seventeen through nineteen, appellant = contends that the search of the YFZ Ranch pursuant to the April 3 = warrant=20 violated the Fourth Amendment, article I, section 9, and article = 38.23=20 because (1) the probable cause affidavit on which the warrant was = based=20 contained material misstatements and omissions of fact; (2) the = telephone=20 calls to the family crisis hotline on which the affidavit relied = were not=20 credible and did not support a finding of probable cause to = believe that a=20 crime had been committed; (3) the telephone calls to the shelter = hotline=20 were obtained in violation of criminal statutes; and (4) the = warrant was=20 general and overbroad. In points of error four, five, and six, = appellant=20 contends that information obtained during the first search was = tainted by=20 these constitutional and statutory violations, was improperly used = in the=20 April 6 probable cause affidavit, and should be disregarded in = determining=20 whether there was probable cause to issue the April 6 warrant. We = do not=20 address the merits of appellant's challenges to the April 3 = search,=20 however, because the information gathered during the search was = not=20 critical to a finding of probable cause to issue the April 6=20 warrant.

In his April 6 = probable=20 cause affidavit, Long stated that while conducting a search of the = ranch=20 pursuant to the first warrant, he saw computers, vaults, and = locked=20 drawers inside the temple and temple annex. He also saw several = beds in=20 the temple, in one of which the linens were disturbed and there = was a=20 strand of what Long believed, due to its length, was female hair. = He also=20 saw a document indicating marriages between one man and over = twenty wives.=20 Even if this information is redacted from the April 6 affidavit, = what=20 remains--the information gathered during the DFPS interviews and = received=20 from the confidential informer--was more than sufficient to give = the=20 magistrate a substantial basis for concluding that there was = probable=20 cause to believe that the offenses of sexual assault of a child = and bigamy=20 had been and were being committed at the YFZ Ranch and to = issue a=20 warrant to search for evidence of those offenses. See Illinois = v.=20 Gates, 462 U.S. 213, 236-37 (1983) (decision to = issue=20 warrant will be sustained if magistrate had substantial basis for=20 concluding that probable cause was shown); State v. = Delagarza,=20 158 S.W.3d 25, 29 (Tex. Crim. App. 2005) (same); Swearingen v. = State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004) (same); = State=20 v. Davila, 169 S.W.3d 735, 738 (Tex. App.--Austin 2005, no = pet.)=20 (same).

Accordingly, = points of error=20 four through six (as applied to the April 3 warrant), seven = through=20 twelve, sixteen (as applied to the April 3 warrant), and seventeen = through=20 nineteen are overruled.

FRANKS V. DELAWARE

In points of error = thirteen,=20 fourteen, and fifteen, appellant contends that the evidence seized = during=20 the April 6 search should have been suppressed because material = facts were=20 omitted from the April 6 probable cause affidavit. The Fourth = Amendment=20 requires that a defendant be allowed to challenge the veracity of = a=20 probable cause affidavit "where the defendant makes a substantial=20 preliminary showing that a false statement knowingly and = intentionally, or=20 with reckless disregard for the truth, was included by the affiant = in the=20 warrant affidavit, and if the allegedly false statement is = necessary to=20 the finding of probable cause." Franks v. Delaware, 438 = U.S. 154,=20 155-56 (1978). Although appellant also cites article I, section 9 = of the=20 Texas Constitution and article 38.23, he does not separately argue = his=20 state claims or present any argument asserting that these = provisions=20 afford him greater protections than the Fourth Amendment as = construed in=20 Franks. Accordingly, these state law contentions present = nothing=20 for review. See Manns v. State, 122 S.W.3d 171, 192 n.97 = (Tex.=20 Crim. App. 2003).

By its express = terms, the=20 holding in Franks applies only to affirmative = misstatements=20 contained in a probable cause affidavit. Neither the Supreme Court = nor the=20 court of criminal appeals has held that Franks applies to = omissions of fact, although several lower courts have so held.=20 See Darby v. State, 145 S.W.3d 714, 722 (Tex. = App.--Fort=20 Worth 2004, pet. ref'd) (collecting cases); see also = Massey v.=20 State, 933 S.W.2d 141, 146 n.3 (Tex. Crim. App. 1996) ("This=20 Court has indicated that we might not recognize = application of=20 Franks to omissions of fact."); = 40 George E. Dix=20 & John M. Schmolesky, Texas Practice: Criminal Practice = and=20 Procedure =A7 9:26 (3d ed. 2011) (stating that omitted fact = could be=20 considered material under Franks if its inclusion would = render=20 affidavit insufficient to show probable cause). For the purpose of = this=20 opinion, we will assume without deciding that Franks does = apply=20 to omissions of fact.

At a = Franks=20 hearing, it is the defendant's burden to prove the alleged perjury = or=20 reckless disregard for the truth by a preponderance of the = evidence.=20 Franks, 438 U.S. at 156. If the defendant satisfies this = burden,=20 and if, with the false material set aside, the remainder of the = affidavit=20 is insufficient to establish probable cause, the search warrant = must be=20 voided and the fruits of the search excluded to the same extent as = if=20 probable cause was lacking on the face of the affidavit. = Id. We=20 review the trial court's ruling on a Franks issue under = the same=20 standard applied to search and seizure issues generally: we give = almost=20 total deference to the court's rulings on questions of historical = fact and=20 mixed questions of law and fact that turn on an evaluation of = credibility=20 and demeanor, but we review de novo the trial court's application = of the=20 law to those facts. Fenoglio v. State, 252 S.W.3d = 468, 473=20 (Tex. App.--Fort Worth 2008, pet. ref'd); see Johnson, 68 = S.W.3d=20 at 652-53; Carmouche, 10 S.W.3d at 327.

The facts = appellant contends=20 were omitted from the April 6 probable cause affidavit are: (1) = the=20 sixteen-year-old caller who identified herself as Sarah Jessop = Barlow was=20 not found at the ranch during the initial search, and (2) Dale = Barlow, the=20 person suspected of sexually assaulting the caller, was located in = Arizona=20 before the first warrant was executed. Relevant to these = omissions, the=20 trial court found:

=95 Before the = April 3 search=20 warrant was executed, Sheriff Doran received a cell phone call = from a=20 person claiming to be Dale Evans Barlow. Doran told this caller to = "contact the law enforcement where he [the caller] was located" = within=20 thirty minutes. Doran never received notice that the caller made = such=20 contact.

=95 "[N]o credible = evidence=20 was introduced to support the . . . claim . . . that Ranger Long=20 intentionally or knowingly or with reckless disregard for the = truth=20 omitted relevant information in his [April 6] probable cause = affidavit[=20 ]."

=95 "[N]o credible = evidence=20 was introduced to support the . . . claim . . . that Ranger Long = acted in=20 reckless disregard for the truth in preparing and presenting the = [April 6]=20 probable cause affidavit[ ]."

=95 "[N]o credible = evidence=20 was introduced to support the . . . claim . . . that Ranger Long=20 entertained doubts, much less serious doubts, about the truth of = the=20 allegations in the [April 6] probable cause affidavit[ = ]."

=95 "[T]he = Defendants failed=20 to present credible evidence to support the claims . . . that the = Ranger's=20 probable cause affidavits knowingly or intentionally contained = either=20 deliberate falsehoods, deliberate omissions or reckless disregard = for the=20 truth."

=95 "Ranger Long = did not=20 deliberately or recklessly omit information from either probable = cause=20 affidavit and . . . if there were any unintentional omission[s] = their=20 inclusion would not have resulted" in the magistrate's refusing to = issue=20 the warrants.

In light of the = trial=20 court's findings regarding the weight and credibility of the = evidence=20 adduced at the Franks hearing, we hold that appellant did = not=20 show that Long omitted material facts from the April 6 affidavit = either=20 deliberately or with a reckless disregard for the = truth.

Points of error = thirteen,=20 fourteen, and fifteen are overruled.

RELIGIOUS FREEDOM

In point of error=20 twenty-one, appellant contends that the searches of the YFZ Ranch = violated=20 his rights under the Free Exercise Clause of the First Amendment. = In point=20 of error twenty, appellant contends that the searches violated the = Texas=20 Religious Freedom Restoration Act (TRFRA). See Tex. Civ. = Prac.=20 & Rem. Code Ann. =A7=A7 110.001-.012 (West 2011). That = act provides=20 that a government agency may not substantially burden a person's = free=20 exercise of religion unless the agency demonstrates that the = application=20 of the burden is in furtherance of a compelling governmental = interest and=20 is the least restrictive means of furthering that interest. = Id. =A7=20 110.003(a), (b). Appellant urges that information learned and = evidence=20 seized during the searches should have been suppressed pursuant to = article=20 38.23 as having been obtained in violation of the Free Exercise = Clause and=20 TRFRA.

The TRFRA defines = "free=20 exercise of religion" as "an act or refusal to act that is = substantially=20 motivated by sincere religious belief." Id. =A7 = 110.001(a)(1). The=20 focus of the act is on the degree to which a person's religious = conduct is=20 curtailed and the resulting impact on the person's religious = expression.=20 Barr v. City of Sinton, 295 S.W.3d 287, 301 (Tex. 2009). = A=20 person's religious exercise has been substantially burdened under = the=20 TRFRA when his ability to express adherence to his faith through a = particular religiously motivated act has been meaningfully = curtailed or he=20 has otherwise been significantly pressured to modify his conduct.=20 Id. at 302.

The Supreme Court = has said=20 that the Fourth Amendment "must not be read in a vacuum," and that = "[a]=20 seizure reasonable as to one type of material in one setting may = be=20 unreasonable in a different setting or with respect to another = kind of=20 material." Roaden v. Kentucky, 413 U.S. 496, 501 (1973). = Citing=20 Roaden, appellant argues that a magistrate should take = into=20 consideration the values protected by the Free Exercise Clause = before=20 issuing a warrant to search a place of religious worship. In=20 Roaden, the Supreme Court held only that the police may = not rely=20 on the exigency exception to the Fourth Amendment warrant = requirement to=20 make a seizure of allegedly obscene materials. Id. at = 506. The=20 Court has eschewed "any suggestion that the standard of probable = cause in=20 the First Amendment area is different than in other contexts . . . = ."=20 New York v. P. J. Video, 475 U.S. 868, 875 (1986). = Instead, "the=20 seizure of materials presumptively protected by the First = Amendment should=20 be evaluated under the same standard of probable cause used to = review=20 warrant applications generally." Id.

Appellant does not = point to=20 evidence that would support a finding that the searches conducted = at the=20 YFZ Ranch curtailed his ability to express adherence to his faith = through=20 a particular religiously motivated act or that the searches = otherwise=20 pressured him to modify his religious conduct. Similarly, = appellant has=20 not shown that the searches at issue limited his = First Amendment=20 right to freely exercise his religious faith. Because the searches = were=20 not shown to violate the Free Exercise Clause or TRFRA, we = overrule points=20 of error twenty and twenty-one.

The judgment of = conviction=20 is affirmed.

__________________________________________

J. Woodfin Jones, = Chief=20 Justice

Before Chief = Justice Jones,=20 Justices Henson and Goodwin

Affirmed

Filed: August 26,=20 2011

Publish

APPENDIX:

APRIL 6, 2008, PROBABLE CAUSE = AFFIDAVIT

Affiant has = probable cause=20 for said belief by reason of the following facts, = to-wit:

Affiant is Leslie = Brooks=20 Long, a certified peace officer under the laws of the State of = Texas for=20 approximately 19 years. Affiant is currently employed by the Texas = Department of Public Safety as a Texas Ranger and has investigated = criminal offenses in the State of Texas, including the criminal = offense of=20 Sexual Assault of a Child. Affiant has received training from the = Texas=20 Department of Public Safety Training Academy in Austin, Texas, = including=20 specialized Criminal Law Enforcement training in reference to = offenses=20 identified as Sexual Assault of a Child. Affiant has personally = been on=20 the premises of the YFZ Ranch on multiple occasions over the past = four=20 years and knows that it is located as described above as the = Suspected=20 Place and Premises. Also, Affiant has now been to the Suspected = Place and=20 Premises on April 4, 2008, April 5, 2008, and = April 6, 2008, for=20 many hours each day. At the Suspected Place and Premises, Affiant = entered=20 the gate described in the Suspected Place and Premises, drove = further onto=20 the property and observed another fence and gate within the ranch. = At the=20 interior gate, Affiant observed a small, enclosed, roofed building = with=20 tinted windows and antennae believed to be used in the purpose of=20 communications. This structure is built a few feet above ground. = Based on=20 these observations and Affiant's training and experience, Affiant = believes=20 this building is a surveillance platform, guard tower or guard = house.=20 Affiant has personally spoken with Frederick Merril Jessop, as = recently as=20 April 5, 2008, who identified himself as the point of contact to = law=20 enforcement involving any requests or needs from the YFZ Ranch, = hereafter=20 referred to as the Suspected Place and Premises. Affiant has = personally=20 observed other persons at the YFZ Ranch seek authorization from = Frederick=20 Merril Jessop to respond to questions from law enforcement and = other=20 government officials. Frederick Merril Jessop advised Affiant that = Frederick Merril Jessop resides at the Suspected Place and = Premises and=20 has presented himself to Affiant as the authority at the Suspected = Place=20 and Premises. Affiant observed that numerous other people were = present at=20 the Suspected Place and Premises and Frederick Merril Jessop on = April 4,=20 2008, advised Affiant that around two hundred fifty men, women and = children reside at the Suspected Place and Premises. The occupants = of the=20 residential structures on the Suspected Place and Premises have = been not=20 been identified to Affiant.

On April 5, 2008, = while=20 conducting a search of the Suspected Place and Premises under = authority of=20 Search and Arrest Warrant number M-08-001-S, out of the 51st = Judicial=20 District of Texas, for the County of Schleicher, a copy of which = is=20 attached hereto with accompanying affidavit as "Attachment A" for = all=20 purposes, Affiant made the following observations: within a large=20 building, that Affiant heard the residents at the Suspected Place = and=20 Premises refer to as a Temple, hereafter referred to as the = "Temple,"=20 Affiant observed multiple locked safes, locked desk drawers, = locked=20 vaults, as well as multiple computers and beds. On one of the beds = within=20 the Temple, Affiant observed that the bed linens were disturbed as = if the=20 bed had been used and Affiant observed a strand of hair believed = to have=20 come from the head of a female. Affiant believes the strand of = hair=20 belongs to a female because Affiant has seen numerous male = residents at=20 the Suspected Place and Premises and all of the males observed by = Affiant=20 wear their hair shorter than the strand of hair observed by=20 Affiant.

On April 5th and = 6th, 2008,=20 Affiant observed a building similar in appearance to the Temple, = but=20 smaller in size that is built away from the Temple, that Affiant = will=20 hereafter refer to as the Temple Annex. Inside the Temple Annex, = Affiant=20 observed multiple safes and a computer and computer=20 peripherals.

On April 6, 2008, = Affiant=20 has personally spoken with Tina Martinez, an employee with the = Texas=20 Department of Protective and Family Services who personally = interviewed a=20 child who identified herself as Yvonne Jessop on April 4th or 5th = of 2008;=20 Yvonne Jessop said she is fifteen years of age; that Yvonne = Jessop=20 knows a child named Suzanne Johnson who is sixteen years of age = and was=20 spiritually united (married); Yvonne Jessop further advised Tina = Martinez=20 that Suzanne Johnson had a baby and is pregnant and resides = at the=20 Suspected Place and Premises.

Tina Martinez also = advised=20 Affiant that she interviewed a child on April 4, 2008, who = appeared to be=20 approximately sixteen years of age who identified herself as Lee = Ann=20 Nelson Jessop; that Tina Martinez asked Lee Ann Nelson Jessop her = age in=20 the presence of Lee Roy Jessop; that, before responding to Tina = Martinez'=20 question, Lee Ann Nelson Jessop looked at Lee Roy Jessop; that Lee = Roy=20 Jessop told Lee Ann Nelson Jessop, "you are eighteen;" after which = Lee Ann=20 Nelson Jessop advised that she is eighteen with a date of birth of = March=20 24, 1990; that Lee Ann Nelson Jessop advised Tina Martinez that = she has a=20 baby that is ten months old, that she is spiritually united with = Lee Roy=20 Jessop who is approximately thirty-three years of age; that Lee = Ann Nelson=20 Jessop is the fourth wife of Lee Roy Jessop who is still married = to the=20 other three wives.

On April 6, 2008, = Tina=20 Martinez further advised Affiant that, between this date and=20 April 4, 2008, she interviewed a child who identified = herself as=20 Pamela Jessop with a date of birth of 12/9/1989 who = advised that=20 she has a son named Matthew Jessop who was born 8/1/2006; = that Pamela=20 Jessop advised that the father of Matthew Jessop is Jackson Jessop = who is=20 thirty-six years old.

On April 6, 2008, = Tina=20 Martinez advised Affiant that, between this date and April 4, = 2008, Tina=20 Martinez interviewed a female who identified herself as Janet = Jeffs Jessop=20 with a date of birth of 9/16/1988 who advised Tina Martinez that = she has a=20 daughter named Diana Ziana Jessop who was born 8/19/2005 and she = has=20 another daughter named Spiritual Unity Jessop who was born=20 8/12/2004.

Also on April 6, = 2008,=20 Affiant has personally spoken with Ruby Gutierrez, an employee = with the=20 Texas Department of Protective and Family Services who personally=20 interviewed a child who identified herself as Josie Steed between = this=20 date and April 4, 2008. Ruby Gutierrez advised Affiant that Josie = Steed=20 told Ruby Gutierrez that a resident of the Suspected Place and = Premises,=20 Sarah Johnson, is sixteen and has been spiritually united = (married)=20 to Joseph Jeffs who is approximately forty years of = age.

Also on April 6, = 2008,=20 Affiant has personally spoken with Rebecca Baxter, an employee = with the=20 Texas Department of Protective and Family Services who, between = this date=20 and April 4, 2008, has personally interviewed a child who = identified=20 herself as Teresa Steed Jessop, with a date of birth of sixteen = years of=20 age; Teresa Steed Jessop advised Rebecca Baxter that Teresa Steed = Jessop=20 is pregnant and due to give birth in June 2008 and that Teresa = Steed=20 Jessop is married to Nathan Jessop whose first wife, to whom = Nathan Jessop=20 is also still currently married, is approximately forty years of=20 age.

On April 6, 2008, = Rebecca=20 Baxter also advised Affiant that, between this date and=20 April 4, 2008, she interviewed a female who appeared to = be=20 approximately sixteen years of age, identified herself as Arta = Jessop=20 Barlow, and advised Rebecca Baxter that Arta Jessop Barlow does = not know=20 her own age, but that she has given birth to a child who is now = two years=20 old and that she is currently pregnant again. On April 6, 2008, = Rebecca=20 Baxter advised Affiant that, between this date and April 4, = 2008, she=20 interviewed a child who identified herself as Viola Barlow, age 8, = who=20 advised that: Arta Jessop Barlow has four children and Arta Jessop = Barlow=20 is under sixteen years of age; that Arta Jessop Barlow is = spiritually=20 united to Richard Jessop Barlow; that = Richard Jessop Barlow is=20 the father of Viola Barlow; that Viola Barlow's mother,=20 Susan Black Barlow, is the first wife of Richard Jessop = Barlow;=20 that Arta Jessop Barlow is the second wife of Richard Jessop = Barlow; and=20 that both wives are still alive and married to Richard Jessop = Barlow.

Affiant has been = advised by=20 Schleicher County Sheriff David Doran that Sheriff Doran has = worked with=20 residents at the Suspected Place and Premises over the past four = years.=20 Sheriff Doran advised Affiant that he has learned from the = residents at=20 the Suspected Place and Premises that the residents all belong to = the=20 religious group the Fundamentalist Church of Jesus Christ of = Latter-Day=20 Saints (hereafter referred to as FLDS). On April 6, 2008, Sheriff = Doran=20 advised Affiant that, over the past four years, Sheriff Doran has = worked=20 with a confidential informant who is a former member of the FLDS; = that the=20 confidential informant has provided Sheriff Doran with information = regarding the FLDS on more than twenty occasions over the past = several=20 years and, that on each occasion, the information was proven to be = reliable, true and correct; that the confidential informant has = continued=20 to provide Sheriff Doran reliable information as recently as April = 5,=20 2008; that, on April 5, 2008, the confidential informant advised = Sheriff=20 Doran of the following: that adult male FLDS church members over = the age=20 of seventeen engage in the practice of marrying multiple wives, at = the=20 initial time of the marriage, the bride is often under the age of = sixteen=20 years: and that the temple at the Suspected Place and Premises = contains an=20 area where there is a bed where males over the age of seventeen = engage in=20 sexual activity with female children under the age of=20 seventeen.

As stated above, = on April 5,=20 2008, Affiant observed a bed within the Temple that has

disturbed bed = linens and a=20 strand of hair that appears to be from a female = head.

Furthermore, while = conducting a search of the Suspected Place and Premises under the=20 authority of Search Warrant number M-08-001-S, on April 5, 2008, = Affiant=20 while agents were searching for documents pertinent to that Search = Warrant, Affiant personally observed a document indicating = marriages=20 between one man and over twenty wives, all of whom resided in the = same=20 residence at the Suspected Place and Premises, as of August 9, = 2007, with=20 no record of divorce or death of a spouse found.=20

1. The=20 evidence shows that Barlow was living in Arizona at the = time.=20

2. Appellant also pleaded no contest to a = bigamy=20 indictment. His appeal from that conviction is pending in this = Court, as=20 are appeals by other individuals who joined the motion to suppress = and=20 were later = convicted.

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