author: DON H. REAVIS, Justice.

text:
    In the Interest of M.L.B.
    No. 07-04-0350-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 4, 2006.

      David Martinez, Law Office of David Martinez, Lubbock, for appellant.
    Lex S. Herrington, Floyd County Atty., Floydada, for appellee.
    Before REAVIS and CAMPBELL and HANCOCK, JJ.
   MEMORANDUM OPINION

DON H. REAVIS, Justice.

Appellant M.L.B. challenges an order of disposition committing him to the Texas Youth Commission (TYC) for an indeterminate period. By a single issue, he contends the trial court abused its discretion because the evidence was insufficient to establish that his parents could not provide the level of care and support needed to meet the conditions of probation and that reasonable efforts had been made to prevent the need to remove him from the home. We affirm.

M.L.B. engaged in delinquent conduct involving his twelve-year-old niece. After stipulating to the State’s evidence, M.L.B. was adjudicated for aggravated sexual assault, a first degree felony, and indecency with a child, a second degree felony. At the disposition hearing, the court heard testimony from Reba Moore, the chief juvenile probation officer. Moore testified to information obtained from a sex offender assessment administered to M.L.B. by Dr. Beth Shapiro, a licensed sex offender therapist. Doctor Shapiro’s report was admitted into evidence without objection. Based on the report and the available placement options, Moore recommended that rehabilitation at a TYC facility would be in M.L.B.’s best interest and in the best interest of society. M.L.B.’s mother and uncle testified that he had not been in trouble at school or with the law prior to this incident.

At the conclusion of the evidence, the court issued an order pursuant to section 54.04(d)(2) of the Family Code committing M.L.B. to a TYC facility for an indeterminate period. In addition to the adjudicated offenses, the order listed the following reasons for the TYC placement:

(1) the said Juvenile-Respondent cannot be controlled or disciplined by either parent;
(2) it is in the best interest of the Juvenile-Respondent and for the protection of the community....

Despite these reasons, M.L.B. contends the trial court abused its discretion because there was no evidence to support the findings required by sections 54.04(c) and 54.04(i) of the Family Code. We disagree.

Following an adjudication, a juvenile court has broad discretion to determine disposition. In re C.J.H., 79 S.W.3d 698, 702 (Tex.App.-Fort Worth 2002, no pet.). In reviewing a court’s decision, we will not reverse a disposition unless the court abused its discretion. Id. Abuse of discretion is determined by whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 — 42 (Tex.1985). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge does not demonstrate that an abuse of discretion has occurred. Id.

By his issue, M.L.B. contends the State’s evidence is insufficient. However, the substance of his argument is a challenge to the legal sufficiency of the evidence. In determining whether the evidence is sufficient to support the disposition ordered, we apply a civil standard of review. In re J.P.R., 95 S.W.3d 729, 731 (Tex.App.-Amarillo 2003, no pet.). Therefore, when evaluating a “no evidence” legal sufficiency challenge, we review the entire record for any probative evidence which, when viewed in its most favorable light, supports the adverse finding. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.2001); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276 (Tex.App.-Amarillo 1988, writ denied). We disregard all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). If there is more than a scintilla of probative evidence to support the finding, we must uphold the judgment. Id.

Section 54.04(c) of the Family Code provides that no disposition placing the child outside of the home may be made unless a court finds “that the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of the probation.” Tex. Fam.Code Ann. § 54.04(c) (Vernon Supp.2005). Similarly, if a court commits the child to TYC, section 54.04(i) requires that it include in its disposition order the following determinations:

(A) [I]t is in the child’s best interests to be placed outside the child’s home;
(B) reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home and to make it possible for the child to return to the child’s home; and
(C)the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.

Id.

At the disposition hearing, a court “may consider written reports from probation officers ... or professional consultants in addition to the testimony of witnesses.” Id. at (b). Regarding the disposition in the present case, the court relied on the sex offender assessment summarized in Dr. Shapiro’s report and the testimony of probation officer Reba Moore. Doctor Shapiro indicates in her report that M.L.B. admits committing the offense but shows a lack of empathy for the victim and is developing a “deviant pattern of sexual arousal.” She recommends M.L.B. receive intensive sex offender treatment to deal with his sexual behavioral problems and recommends participation in treatment and support groups. Based on her assessment, Dr. Shapiro concludes there is a risk M.L.B. will reoffend unless he is placed in a secure facility where he can receive sex offender therapy.

In addition to Dr. Shapiro’s report, Moore testified that a TYC commitment would be necessary to protect the victim and other children in the family and that TYC was the only secured facility in the court’s jurisdiction with a sex offender therapy program. When questioned specifically regarding the quality of care and level of support in the home, Moore stated that, due to the closeness of the family and lack of supervision, the family interactions “might not protect the victim.” She also stated her opinion that removal of M.L.B. from the home would be necessary for the healing of the family. Considering the evidence presented at the disposition hearing in a light favorable to the judgment, we conclude there is more than a scintilla of probative evidence to support the findings required by sections 54.04(c) and 54.04(i). M.L.B.’s issue is overruled.

Accordingly, the trial court’s order of disposition is affirmed.


source: Caselaw Access Project

author: CHARLES KREGER, Justice.

license: Public Domain

text:
    Andrew Sawyer WELLER, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-428 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted on Nov. 21, 2005.
    Decided Jan. 11, 2006.

      J.D. Hamm, Beaumont, for appellant.
    Bruce N. Smith, Special Prosecutor, Beaumont, for state.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

This is an appeal of a commitment order extending inpatient mental health services for appellant Andrew Sawyer Weller. In a sole issue, Weller argues the evidence is legally and factually insufficient to support the trial court’s determination that he poses a danger to himself and others. We affirm the order.

Procedural Background

On January 11, 1988, Weller was found not guilty of murder by reason of insanity. See Weller v. State, No. 09-01-067-CR, 2002 WL 91004, at *1 (TexApp.-Beaumont Jan.23, 2002, no pet.) (not designated for publication). Pursuant to Tex.Code Crim. PRO. ANN. art. 46.03 § 4(d), (1) Weller was ordered committed to the North Texas State Hospital-Vernon Campus for treatment. See Weller, 2002 WL 91004, at *1.

On August 24, 2004, the State filed an application for renewal of extended court-ordered mental health services. On September 20, 2004, the trial court held a hearing to determine whether Weller continued to meet the criteria for involuntary commitment. The trial court found, by clear and convincing evidence, that Weller (1) was mentally ill, (2) was likely to cause serious harm to others, (3) would, if not treated, continue to suffer severe and abnormal mental, emotional, and physical distress, (4) would, if not treated, continue to experience deterioration of his ability to function independently, (5) was presently unable to make a rational and informed choice as to whether or not to submit to treatment, and (6) was expected to continue in this condition for more than ninety days. See Tex. Health & Safety Code ANN. § 574.035(a) (Vernon Supp.2005). Based upon these findings, the court entered a judgment committing Weller to North Texas State Hospital-Vernon Campus for in-patient treatment for a period not to exceed one year.

Standard of Review

When reviewing the legal sufficiency of the evidence in a case where the burden of proof at trial was by clear and convincing evidence, we consider all the evidence in the light most favorable to the finding. Harrison v. State, 148 S.W.3d 678, 680 (Tex.App.-Beaumont 2004, no pet.). ‘We must assume the factfinder resolved disputed facts in favor of the finding, if a reasonable factfinder could do so.” Id. (citing In re S.T., 127 S.W.3d 371 (Tex.App.-Beaumont 2004, no pet.)). We must disregard all evidence that a reasonable factfinder could have disbelieved or found incredible, but undisputed facts that do not support the finding cannot be disregarded. Id. (citing In re S.T., 127 S.W.3d at 373). If any probative evidence supports the finding, we will uphold the decision. K.T. v. State, 68 S.W.3d 887, 890 (Tex.App.Houston [1st Dist.] 2002, no pet.) (citing In re K.C.M., 4 S.W.3d 392, 395 (Tex.App.Houston [1st Dist.] 1999, pet. denied)).

When reviewing the factual sufficiency of the evidence, “we must give due consideration to any evidence the factfinder could reasonably have found to be clear and convincing.” Harrison, 148 S.W.3d at 680 (citing In re S.T., 127 S.W.3d at 373). “The evidence is factually insufficient if, in light of the entire record, the disputed evidence that does not support the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction” as to the truth of its finding. Id. (citing In re S.T., 127 S.W.3d at 373).

Standard of Proof

Section 4(d)(5) of article 46.03 (2) provides that a person acquitted by reason of insanity and committed to a mental hospital or other appropriate facility ... may only be discharged in accordance with the procedures specified therein and charges the trial court with determining whether the acquitted person continues to meet the criteria for involuntary commitment. Section 4(d)(2) (3) provides that criteria is found in the Texas Mental Health Code. See tex. Health & Safety Code Ann. §§ 574.031-.037 (Vernon 2003 & Supp.2005). As noted in Campbell v. State, 118 S.W.3d 788, 793 (Tex.App.Houston [14th Dist.] 2003, pet. denied), “The court can only recommit appellant if it finds that he meets one of the criteria for commitment specified in Mental Health Code section 574.035.”

According to section 574.035(a), the evidence must be clear and convincing. See tex. Health & Safety Code Ann. § 574.035(a) (Vernon Supp.2005). Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction about the truth of the allegations sought to be established. See State v. Addington, 588 S.W.2d 569, 570 (Tex.1979). “To be clear and convincing under Subsection (a), the evidence must include expert testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm: (1) the likelihood of serious harm to the proposed patient or others; or (2) the proposed patient’s distress and the deterioration of the proposed patient’s ability to function.” tex. Health & Safety Code AnN. § 574.035(e) (Vernon Supp.2005).

An expert diagnosis of mental illness, standing alone, is not sufficient to confine a patient for compulsory treatment. K.T., 68 S.W.3d at 892. When the evidence merely reflects that an individual is mentally ill and in need of hospitalization the statutory standard has not been met. Id. The expert opinions and recommendations must be supported by a showing of the factual bases on which they are grounded. T.G. v. State, 7 S.W.3d 248, 252 (Tex.App.-Dallas 1999, no pet.) (citing Mezick v. State, 920 S.W.2d 427, 430 (Tex.App.-Houston [1st Dist.] 1996, no writ)).

Texas courts have noted several relevant factors that may be considered in determining whether a patient who has been criminally violent while insane meets the criteria for court-ordered extended mental health services. A patient’s refusal to take medication is evidence that, as a whole, tends to confirm the likelihood of serious harm to the patient and others. Roland v. State, 989 S.W.2d 797, 802 (Tex.App.-Forth Worth 1999, no writ); see also Niswanger v. State, 875 S.W.2d 796, 801 (Tex.App.-Waco 1994, no pet.) (holding that evidence that patient who had a history of not taking medication and who murdered husband during a period when she was off of her medication and delusional tends to confirm the likelihood of serious harm to patient or others). The original crime may also be considered as additional background information to assess whether the patient has improved or is merely repeating past behavior. See Campbell, 118 S.W.3d at 793-94. The original crime may also indicate the extent to which a patient can be a danger to others if he does not control his mental illness. See id. at 796. Evidence that a patient denies various details of the crime may also be relevant. See id.

The State’s Evidence

The trial court had a written report from Dr. Baker, Weller’s attending physician at North Texas State Hospital, and the live testimony of Dr. Gripon, a psychiatrist in Beaumont. Both doctors were of the opinion that Weller was likely to cause harm to others. Dr. Gripon opined that Weller was also likely to cause harm to himself.

Dr. Gripon testified that Weller exhibited a “continuing pattern of thought process including evasive, guarded, oppositional, delusional and paranoid belief system.” Dr. Gripon also testified that Weller does not accept responsibility for his parents’ murder, he engages in antisocial behavior, he does not consider himself mentally ill, he believes that those who consider him ill are involved in a plot to deprive him of his civil rights, and he “fails to realize why he’s in the North Texas State Hospital.”

Dr. Gripon testified that a few months prior to the hearing, Weller took “psychoactive medication” and he “showed some brief initial improvement on that; but that fairly shortly after beginning the medication, within ten days to two weeks, he had side effects from the medication and it was subsequently discontinued.” Dr. Gripon further testified that Weller has “persistently refused to take medication” and he “is not amenable to ... tak[ing] any kind of psychoactive medication .... ” According to Dr. Gripon, Weller is suffering from the same mental condition that resulted in Weller’s original commitment and the condition “hasn’t gone away and it’s not going to spontaneously [go] away on its own.”

Weller’s Witness

Weller presented no controverting expert testimony. Weller testified on his on behalf. Weller testified that he participates in counseling sessions with Dr. Baker, he participates in an exercise class and a computer class, he has worked in the commissary, and he has worked in the food service department. Weller also testified that he participates in activities that require him to interact with approximately thirty patients with the supervision of one or two hospital personnel.

Weller testified that he has not had any violent episodes as a patient, has not damaged hospital property, and has not suffered from “uncontrollable rage.” He indicated he has not had any problems with other patients or the staff and cooperates with treatment. Weller also explained that if he were released, he would not be a danger to himself or to others and that a review board found he “was not manifestly dangerous to [himself] or to others.... ” Weller assured the court that if he were released and he began experiencing mental health problems, “I’d be the first one to speak up.”

On cross-examination, when the State asked Weller if he knew why the trial court ordered him to serve time in the mental hospital, Weller replied, “Are you talking about ... the original offense 18 years ago, or whatever it was?” Weller testified that he knew he was charged with two counts of murder. Weller also stated, “I knew very little about it 18 years ago. [F]or me to discuss that now ... I don’t see what purpose it would serve.” When the State asked Weller if he believed he was guilty of murdering his parents, Weller stated, “I still feel that someone drugged me and that my parents’ deaths was [sic] a result of that.”

Weller testified that he “reluctantly” took the psychoactive medication Dr. Gri-pon mentioned in his testimony and stated, “I had such side effects ... that it wasn’t worth ... taking.” Weller testified that he did not believe he needed to take any type of medication and when the State asked him if he believed he needed medication for a mental illness Weller responded, “For what?”

Conclusion

Viewing the evidence in the light most favorable to the finding, and disregarding contrary evidence that the trial court could have reasonably disbelieved, we conclude there is clear and convincing evidence in the record from which the trial court reasonably could have formed a firm conviction that Weller continues to meet the inpatient criteria for involuntary commitment. See tex. Health & Safety Code Ann. § 574.035(a) (Vernon Supp.2005). There is expert testimony that indicates Weller continues to suffer from the delusional disorder that resulted in his parents’ murders, he refuses to take medication to treat the disorder, he does not take responsibility for his parents’ murders, and he does not believe he is mentally ill. The evidence from all the experts shows Weller is likely to cause harm to others and to himself. This evidence, taken as a whole, tends to confirm the likelihood of serious harm to Weller or others. See tex. Health & Safety Code ANN. § 574.035(e) (Vernon Supp. 2005).

Furthermore, we find the evidence factually sufficient because our review of the entire record does not convince us that the contrary evidence is so significant that the trial court could not reasonably have formed a firm belief or conviction to the truth of its finding. Issue one is overruled. The trial court’s order is affirmed.

AFFIRMED.

      . Act of May 25, 1983, 68th Leg., R.S., ch. 454, § 3, 1983 Tex. Gen. Laws 2640, 2643-47, repealed, by Act of May 27, 2005, 79th Leg., R.S., ch. 831, § 1, 2005 Tex. Gen. Laws 2841, 2841 (current version at Tex.Code Crim. Proc. Ann. art. 46C.001-46C-270 (Vernon Supp.2005)). The 2005 amendment states that it "applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Act of May 27, 2005, 79th Leg., R.S., ch. 831, § 5, 2005 Tex. Gen. Laws 2841, 2853-54.

      . Act of May 25, 1983, 68th Leg., R.S., ch. 454, § 3, 1983 Tex. Gen. Laws 2644 — 45 (repealed 2005).

      . Act of May 25, 1983, 68th Leg., R.S., ch. 454, § 3, 1983 Tex. Gen. Laws 2643 (repealed 2005).


author: HOLLIS HORTON, Justice.

text:
    Christopher Jordan BAHM, Appellant, v. The STATE of Texas, Appellee.
    No. 09-05-049 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Aug. 30, 2005.
    Decided Jan. 18, 2006.
    Discretionary Review Granted May 3, 2006.

      Gary A. Udashen, Sorrels & Udashen, Dallas, for appellant.
    Michael A. McDougal, Dist. Atty., Patty Maginnis, Gail Kikawa McConnell, Asst. Dist. Atty’s, Conroe, for state.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Christopher Jordan Bahm contends the trial court erred when it denied his motion for new trial without holding a hearing. Bahm sought a new trial after the trial court revoked his community supervision and sentenced him to twenty-five years in prison. We affirm.

BACKGROUND

Pursuant to a plea bargain agreement, Bahm pled guilty to aggravated sexual assault of a child. The trial court accepted Bahm’s plea and deferred adjudication of his guilt. The court also ordered that Bahm be placed on community supervision for eight years.

Approximately five months later, the State filed its motion to adjudicate guilt and to revoke community supervision. The State alleged that Bahm committed eleven violations of his community supervision order. At the revocation hearing, Bahm pled “true” to six alleged violations and “not true” to the remaining five allegations. The violations to which Bahm pled true were ones alleging that he failed to pay, or failed to pay timely, certain fines, fees, and costs. The remaining five paragraphs, to which Bahm pled “not true,” alleged that he failed to: (1) obtain suitable employment; (2) perform community service; (3) attend and complete sex offender counseling; and that he admitted having: (4) unapproved contact with a minor child as well as (5) sexual intercourse with a minor. After an evidentiary hearing, the trial court found all of the allegations to be true except the assertion that Bahm had admitted having sexual intercourse with a minor child. After adjudicating Bahm’s guilt, the trial court immediately heard punishment arguments and then sentenced Bahm.

Following Bahm’s untimely filing of a motion for new trial and an appeal, Bahm successfully petitioned the Court of Criminal Appeals for a writ of habeas corpus. The Court granted Bahm an out-of-time appeal. Bahm then filed a second motion for new trial. The trial court denied Bahm’s second motion without holding a hearing. In this appeal, Bahm asserts the trial court erred in failing to hold an evi-dentiary hearing on his motion for new trial.

STANDARD Of REVIEW

We review the trial court’s decision not to hold an evidentiary hearing on a motion for new trial under an abuse of discretion standard. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App.2003). A defendant’s right to an evidentiary hearing on a motion for new trial is not absolute. Reyes v. State, 849 S.W.2d 812, 815-16 (Tex.Crim.App.1993). However, a defendant has a right to an evidentiary hearing when the motion and supporting affidavits raise matters that are not determinable from the record without a hearing, and the record prior to the hearing demonstrates that the defendant could be entitled to relief. Wallace, 106 S.W.3d at 108. To be sufficient to require an evidentiary hearing, the motion for new trial and accompanying affidavits need not establish a prima facie case for a new trial. Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App.1994). Rather, the documents need only reflect that reasonable grounds exist for granting a new trial. Martinez v. State, 74 S.W.3d 19, 22 (Tex.Crim.App.2002).

In considering whether Bahm’s motion for new trial and supporting affidavits raise any matters that could entitle him to relief under the circumstances here, we note that both statutory and case law limit the relief available to plea-bargaining defendants who have received deferred adjudication. The Code of Criminal Procedure specifically provides that a defendant who received community supervision may not appeal a trial court’s decision to adjudicate guilt on the original charge. See tex.Code CRIM. Proo. Ann. art. 42.12, § 5(b) (Vernon Supp.2005). The Court of Criminal Appeals interprets these provisions as prohibiting a defendant who received deferred adjudication from waiting until his deferred adjudication is revoked to appeal matters related to his original plea proceeding. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999)(requiring issues relating to original plea proceeding to be appealed when deferred adjudication community supervision was first imposed).

While issues related to a defendant’s original guilty plea are no longer appealable at this point, Bahm may appeal aspects of the punishment phase of his case. See Hogans v. State, 176 S.W.3d 829, 833 (Tex.Crim.App.2005)(citing Kirtley v. State 56 S.W.3d 48, 51 (Tex.Crim.App.2001)). As Hogans explains, appellate courts have jurisdiction over claims that “temporally arise[ ] before the act of adjudication if the claim directly and distinctly relates to punishment rather than to the decision to adjudicate.” Hogans v. State, 176 S.W.3d at 830-31.

Bahm’s motion for new trial attacks the trial court’s decision on various grounds. Some of Bahm’s contentions in his motion for new trial are not foreclosed at this point from appeal by the Code of Criminal Procedure (appealable matters), and some of the contentions asserted by Bahm in his motion for new trial are at this point foreclosed (non-appealable matters).

Non-Appealable Matters

Bahm’s motion for new trial raises matters that do not entitle him to relief because they are related to the adjudication of guilt process or are related to his original plea proceeding. See Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.1999); Manuel, 994 S.W.2d at 661-62. With respect to these matters, the trial court did not abuse its discretion in declining to grant Bahm’s request for an eviden-tiary hearing.

Bahm’s contentions that relate to the trial court’s adjudication of his guilt are: (1) his counsel was ineffective at the adjudication hearing; (2) the State did not prove he intentionally failed to pay fines, fees, and costs; and (3) the State did not prove he failed to maintain and secure employment. Because Bahm pleaded guilty and received deferred adjudication-community supervision, he is foreclosed at this point from raising these claims in this appeal. See Hogans, 176 S.W.3d at 833 (citing Kirtley, 56 S.W.3d at 51); see Connolly, 983 S.W.2d at 741.

Bahm also made complaints in his motion for new trial that relate to his original plea proceeding. He asserts in his motion for new trial that his original counsel rendered ineffective assistance and that the trial court improperly delegated to the probation officer the authority to require Bahm to attend and complete counseling and to perform community service. Because these claims relate to Bahm’s original plea proceeding, they cannot be raised in his present appeal. See Manuel, 994 S.W.2d at 661-62 (finding that a defendant placed on deferred adjudication probation may raise issues relating to original plea proceeding only in an appeal taken when deferred adjudication probation is first imposed).

Also related to his original plea proceeding is Bahm’s assertion that prior to his guilty plea, the State failed to reveal mitigating evidence, namely the medical results of a rape test on the alleged victim that showed no signs of penetration or any evidence consistent with the indictment. Because Bahm pled guilty and received deferred adjudication, at this point this claim is also foreclosed from being raised in this appeal. Id.

Moreover, Bahm’s affidavit is insufficient regarding this claim. Bahm does not state that he is innocent of the aggravated assault, does not provide any evidence in support of his allegation that the State withheld evidence, and does not state how he learned of the alleged mitigating evidence. As Bahm failed to show that reasonable grounds exist supporting this claim, the trial court did not err in denying his request for an evidentiary hearing. See Wallace, 106 S.W.3d at 108.

Finally, in his motion for new trial, Bahm contends the trial court admitted evidence of extraneous offenses in violation of the Rule of Evidence 404(b) and Article 37.07 of the Texas Code of Criminal Procedure. However, on appeal Bahm provides no description of the offending evidence and does not explain whether the evidence was admitted in the original plea proceeding or the adjudication hearing. Because Bahm pled guilty and received deferred adjudication, and this complaint is related to his guilt and not to punishment, at this point in his case the law forecloses his appeal on this complaint. As a result, the trial court did not abuse its discretion in declining to grant Bahm’s request for an evidentiary hearing regarding this claim. See Manuel, 994 S.W.2d at 661-62; Connolly, 983 S.W.2d at 741.

Appealable MatteRS

In his motion for new trial, Bahm asserts two matters that the State concedes are appealable: (l)the trial court’s alleged failure to hold a separate punishment hearing; and (2) counsel’s alleged ineffective assistance at the punishment phase in failing to inform him of a plea bargain offer. We consider these matters within the constraints of Bahm’s sole appellate issue, namely, whether the trial court erred in failing to hear his new trial motion. “The purpose of the hearing is for a defendant to fully develop the issues raised in his motion for new trial.” Jordan, 888 S.W.2d at 665. When the motion presents matters determinable from the record, the trial court does not abuse its discretion by failing to conduct an eviden-tiary hearing. Reyes v. State, 849 S.W.2d at 816.

Whether the trial court erred in failing to hold a separate punishment hearing is a matter that may be determined from the existing record. We have before us the reporter’s record of the revocation hearing. Included in this transcription is the trial court’s determination of guilt, after which the court immediately heard counsels’ punishment arguments and determined punishment. Thus, the record already establishes that the trial court did not conduct a separate evidentiary punishment hearing and the trial court need not conduct a new-trial hearing on this matter. See Reyes, 849 S.W.2d at 815-16.

Bahm also claims that his counsel provided ineffective assistance at the punishment stage by failing to inform him of a proposed plea bargain. The State concedes that this complaint is appealable.

As a prerequisite to obtaining a hearing, the defendant must support his motion by affidavit specifically showing the truth of the grounds for attack. See King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App.2000). Affidavits that are conclusory in nature and unsupported by facts are not sufficient to put the trial court on notice that reasonable grounds for relief exist. Jordan, 883 S.W.2d at 665.

The State argues that the trial court was not required to hold a hearing because Bahm’s affidavits fail to show that a hearing was needed. Though we consider grounds other than those cited by the State, we agree the affidavits are insufficient. We must uphold judgments on appeal if they are correct under any theory of law, even one that the appellee did not cite. See Martinez v. State, 74 S.W.3d at 21 (citing Ex parte Taylor, 36 S.W.3d 883, 886 (Tex.Crim.App.2001)). In Martinez, the Texas Court of Criminal Appeals held that an intermediate appellate court may affirm a trial court’s denial of a hearing on a new trial motion when the supporting affidavits are insufficient even though the State did not claim insufficiency. See 74 S.W.3d at 21.

Bahm’s motion for new trial is supported by three documents titled as affidavits. One document is signed by Bahm. The second is signed by his father, Dewitt Bahm. The third is signed by his aunt, Donna Klemme.

Bahm’s “affidavit” is actually an un-sworn declaration that an inmate may use in lieu of a verification or affidavit pursuant to the Texas Civil Practice and Remedies Code. See tex. Civ. Prac. & Rem.Code Ann. §§ 132.001-.003 (Vernon 2005). In his unsworn declaration, Bahm declares “under penalty of perjury that according to my belief the foregoing information in this Affidavit [is] true and correct.” (Emphasis added.)

We first review Bahm’s unsworn declaration to determine if it meets the requirements of the Civil Practice and Remedies Code. See id. Section 132.002 provides that the declaration must be written and be “subscribed by the person making the declaration as true under penalty of perjury.” Id. at § 132.002. Section 132.003 requires that the declaration be substantially in the following form: “I ... declare under penalty of perjury that the foregoing is true and correct.” See tex. Crv. Prao. & Rem.Code Ann. § 132.003 (Vernon 2005).

This Court and several of our sister courts have considered the statutory requirements for unsworn declarations. In Draughon v. Cockrell, an inmate filed a claim under Chapter 14 of the Texas Civil Practice and Remedies Code without filing an affidavit or unsworn declaration required by section 14.004. See 112 S.W.3d 775, 776 (Tex.App.-Beaumont 2003, no pet.). We'noted that section 132.003 requires an inmate’s unsworn declaration to be in writing and subscribed by the person making the declaration as true under penalty of perjury. Id. at 776 n. 2.

In Teixeira v. Hall, the Texarkana Court considered the sufficiency of an inmate’s unsworn declaration provided to support his affidavit of inability to pay. See Teixeira v. Hall, 107 S.W.3d 805, 810 (Tex.App.-Texarkana 2003, no pet.). The Teixeira Court concluded that its review should determine “the basic question of whether, if [the affiant] lied, perjury could be assigned to this declaration.” Id. (In comparing its review to that required under Rule of Civil Procedure 145, the court noted that Rule "145 cases appraised whether the affirmations “show that the statements are based on the affiant’s personal knowledge and whether the statement is so positive as to allow perjury to lie.”)

In Mason v. State, an unreported criminal case involving a motion for new trial, the defendant’s supporting affidavit contained an unsworn declaration in which he asserted “under penalty of perjury that the foregoing motion for new trial [was] true and correct to the best of [his] knowledge.” 2003 WL 1237947, at *2 (Tex.App.-San Antonio March 19, 2008, pet. ref'd)(not designated for publication). The Mason Court stated that a “declaration does not attest to the truthfulness of the facts” when it includes the phrase “to the best of my knowledge.” Id. The court further determined that the declaration did not substantially comply with the form required by law and, thus, was not effective as a verification or affidavit. Id. Concluding that the motion for new trial was insufficient as a matter of law, the Mason Court found that the trial court did not abuse its discretion by denying the motion without a hearing. Id.

In In re Hargesheimer, an inmate sought a writ of mandamus. See 2004 WL 42261, at *1 (Tex.App.-Amarillo Jan.8, 2004, no pet.). The Amarillo Court of Appeals denied the writ, in part due to the relator’s reliance on an insufficient affidavit. Id. The court noted that the document filed as an affidavit could not be considered even as an unsworn declaration because the relator failed to assert that the document’s factual statements were true and correct “under penalty of perjury.” Id.

In Texas criminal cases involving new trial motions, it has long been the rule that affidavits are insufficient if they would not support perjury prosecutions. See Vyvial v. State, 111 Tex.Crim. 111, 10 S.W.2d 83, 84-85 (1928)(op. on reh’g); Bearden v. State, 648 S.W.2d 688, 690-91 (Tex.Crim.App.1983)(citing Vyvial with approval); Grant v. State, 172 S.W.3d 98, 102 (Tex.App.-Texarkana 2005, no pet. h.)(recently explaining that motion-for-new-trial affidavit must be “stated in such a direct and unequivocal manner that perjury could be assigned to it if the statement was found to be false[ ]”).

Texas civil cases also inform our analysis of affidavit requirements. To be legally sufficient, an affidavit must “positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge.” Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975)). The Brownlee Court explained that, absent statutory authorization, “an affidavit is insufficient unless the allegations contained therein are direct and unequivocal and perjury can be assigned upon it.” Brownlee, 665 S.W.2d 111, 112; see also Ex parte Miller, 604 S.W.2d 324, 326 (Tex.Civ.App.-Dallas 1980, no writ)(An affidavit that is sworn to on “best knowledge and belief’ is insufficient because of “the reliance, at least in part, on one’s belief.”) As this Court previously explained, an affiant who swears that facts are true “according to his belief’ cannot successfully be prosecuted and convicted for perjury if he then states erroneous beliefs. See Williams v. Bagley, 875 S.W.2d 808, 810 (Tex.App.-Beaumont 1994, no writ).

Bahm uses the phrase “according to my belief’ to qualify his declaration. As a result, it does not meet the statutory requirements of an unsworn declaration because it fails to attest to the truthfulness of the facts. Swearing that a fact is “true and correct according to one’s belief’ is not substantially the same form as swearing that a fact is “true and correct.” Thus, the trial court was not required to consider Bahm’s affidavit in determining whether to conduct an evidentiary hearing on his motion for new trial.

To be sufficient to require the trial court to hold an evidentiary hearing on Bahm’s claim of ineffective assistance of counsel asserted in his motion for new trial, Bahm’s other two supporting affidavits must specifically show that Bahm’s attorney failed to inform him of an offered plea bargain. See King, 29 S.W.3d at 569. Affidavits that are conclusory in nature and unsupported by facts are not sufficient to put the trial court on notice that reasonable grounds for relief exist. Jordan, 883 S.W.2d at 665.

Dewitt Bahm, the appellant’s father, provided an affidavit that stated in pertinent part:

I was not called to testify at the hearing on the State’s Motion to Adjudicate Guilt. However, if I had been called to testify, I would have testified that Christopher was trying to comply with all of his probation conditions and attempting to do the right thing. He was working and was trying to get a better job so he could pay the money that he owed. He was not making enough money in the job he had to pay what he owed. I would have testified that Christopher was a good person who wanted to be a contributing member of his community if given another chance by the Court.
Also, after the hearing where Christopher was sent to prison, I spoke to his lawyer and the lawyer told me that the State had offered him a plea bargain for 7 years. I had not heard before then that any plea bargain had been offered.

Dewitt Baton's affidavit shows that he did not know about the alleged plea bargain until after the hearing. It does not prove when Christopher Bahm may have learned about the alleged proposal, or prove that Christopher Bahm’s attorney did not timely convey plea bargains to him. Thus, it is insufficient to put the trial court on notice that reasonable grounds for relief exist.

Donna Klemme, Bahm’s aunt, stated in her affidavit as follows:

I was not called to testify at Christopher’s revocation hearing where he was sentenced to prison. I was also never contacted by his lawyer. Had I been contacted and called to testify I would have testified that Christopher is a good person, he is kind-hearted and generous, has a good nature and is a good, hard worker. I would have testified that I believe Christopher has the desire and ability to do well on probation and be a positive member of society.

Donna Klemme’s affidavit is insufficient as evidence of Bahm’s claim of ineffective assistance as it provides no evidence to the trial court about the alleged plea bargain proposal.

Because the affidavits submitted by Bahm in his motion for new trial were factually insufficient regarding Bahm’s claim of ineffective counsel, Bahm failed to put the trial court on notice that reasonable grounds existed for granting a new trial. Therefore, we hold that Bahm failed to establish any error by the trial court in refusing to hold an evidentiary hearing on his motion for new trial. Bahm’s sole point of error is overruled.

Finding no reversible error, we affirm the trial court’s judgment.

AFFIRMED.

      . Article 42.12, section 5(b) states:
      On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

      texCode Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2005) (emphasis added).

      . We note that Bahm pled true to the allegations that he failed to pay fines, fees, and costs. A plea of true to any one of the alleged violations is sufficient to support the trial court’s order of revocation. See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. [Panel Op.] 1979).

      . In his affidavit, Bahm stated:
      "After all of the proceedings I learned that the State had in its possession evidence that had they disclosed, probably would result in a different verdict in a new trial. I found out that the State had in its possession the medical results of a rape test done on the alleged victim. The exam showed no signs of penetration, no DNA, or any other forensic evidence as claimed in the indictment.”

      . We note that Bahm presents his “separate punishment hearing” question only as an argument supporting his issue that the trial court was required to conduct an evidentiary hearing on his motion for new trial. As Bahm does not present this question as a separate issue entitling him to remand, we need not determine whether Bahm had sufficient opportunity to present mitigating evidence on punishment during adjudication. See Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Crim.App.1999)(finding that defendant has no absolute right to separate punishment hearing, but instead must have opportunity to present evidence in mitigation of punishment if such opportunity was not afforded during adjudication).

      . As to Bahm's claim that counsel was ineffective in failing to inform him that the State had offered a seven-year plea bargain, the State maintains the following record of the revocation hearing shows it made no offer:
      State: I don’t think [Bahm] is a suitable candidate for probation, and he certainly should not be reinstated, and the State would seek for you to adjudicate him, find him guilty, and send him to the Texas Department of Corrections, and we are going to be asking for 40 years.

        Court: You take the position that we will- go from eight years deferred adjudication to—
      State: The whole purpose, as you know, .for deferred on a sexual offense, is for the court to have that exposure for the Defendant, and that’s why deferred is the only thing that is available for these type of offenses, and if you—
      Court: I take it you were not the prosecutor that recommended the eight years deferred adjudication?
      State: You take it correctly.
      While this exchange clearly shows that the prosecutor at the revocation hearing was seeking a forty year sentence and was not the prosecutor at the deferred adjudication hearing, the State does not explain how this record excerpt shows that the State did not offer a seven-year plea bargain prior to the revocation hearing.

      . We consider unreported cases for informational purposes only as they have no prece-dential value. See tex.R.App. P. 47.7.

      . Section 37.02. Perjury
      (a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:
      (1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or
      (2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.
      (b) An offense under this section is a Class A misdemeanor.
      tex. Pen.Code Ann. § 37.02 (Vernon 2003).

      .In Charles v. State, the Texas Court of Criminal Appeals recently applied the civil summary judgment standard to determine requirements for affidavits of interested parties in a criminal case. See 146 S.W.3d 204, 210 (Tex.Crim.App.2004). The Charles Court noted that the Texas Rules of Civil Procedure allow affidavits from interested parties to establish facts for "summary-judgment purposes only if that evidence is 'clear, positive and direct, otherwise credible, and free from contradictions and inconsistencies, and could have been readily controverted.' ” Id. (quoting tex.R. Civ. P. 166a(c)). "A trial judge has discretion to discount factual assertions in an affidavit by an interested party that do not meet this test." Charles, 146 S.W.3d at 210. When the affidavit contains factual assertions regarding an interested witness’s own state of mind, the affidavit normally will be "uncon-trovertible" because " 'the mental workings of an individual's mind are matters about which adversaries have no knowledge or ready means of confirming or controverting.’ ” Id. (quoting Lection v. Dyll, 65 S.W.3d 696, 701 (Tex.App.-Dallas 2001, pet. denied)).

      . Even if Bahm's unsworn declaration had been sufficient, his affidavit was inconsistent with his father’s regarding when his father learned of the alleged plea bargain offer. Bahm's affidavit stated that counsel informed his father of the offer in September, 2002; Dewitt Bahm's affidavit stated that he learned of the plea offer after the revocation hearing, which was held in, February, 2003.


author: LEE ANN DAUPHINOT, Justice.

text:
    Jane Etta HARRIS, Appellant, v. The STATE of Texas, State.
    No. 2-03-136-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 19, 2006.

      Don Hase, Arlington, for Appellant.
    Tini Curry, Crim. Dist. Atty., Charles M. Mallín, Anne Swenson, and David M. Curl, Asst. Dist. Attys., Fort Worth, for Appellee.
    PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

LEE ANN DAUPHINOT, Justice.

In its most recent petition for discretionary review, the State complains that “Appellant certainly never preserved the outlandish Franks violation invented and sustained by the majority” and contends that “[t]he majority’s feeble efforts to defend its misreading of the affidavit cannot withstand scrutiny,” resulting in a holding that is “ill considered in several respects— and made all the more so by the majority’s repeated refusal to acknowledge the State’s argument” that “Appellant failed to preserve any Franks complaint in the trial court.” The State also complains that, by referring to the affiant by name, this court “savages him.”

Because our opinion of November 23, 2005 was apparently inartfully worded, pursuant to rule of appellate procedure 50, we withdraw that opinion and judgment and substitute the following. In deference to the State’s sensibilities, we now refer to the affiant as Officer X.

A jury found Appellant Jane Etta Harris guilty of possession of a controlled substance and assessed her punishment at ten years’ imprisonment. The trial court sentenced her accordingly. In three points, Appellant challenges (1) the trial court’s denial of her motion to suppress based on an invalid search warrant, (2) the trial court’s refusal to conduct an in-camera hearing related to a confidential informant, and (8) the trial court’s denial of Appellant’s requested article 38.23 jury instruction. Because we hold that the trial court abused its discretion by denying Appellant’s motion to suppress, we reverse the trial court’s judgment and remand this case for a new trial without the illegally seized evidence.

BACKGROUND FACTS

In June 2001, the Fort Worth Police Department received a Tarrant County Crime Stoppers tip that drugs were being sold out of Apartment No. 158 at 5308 East Rosedale in Fort Worth. Officer X, the Fort Worth police officer assigned to investigate the complaint, said that he observed traffic which he described as consistent with narcotics dealings coming from the general area of the apartment. He then arranged for a confidential informant to attempt a narcotics purchase from the apartment. After Officer X used the confidential informant to conduct an undercover buy, he obtained a search warrant for the apartment. The police executed the search warrant and recovered over four grams of cocaine.

In a two-count indictment, Appellant was charged with possession of cocaine with intent to deliver and possession of cocaine. Prior to trial, Appellant filed a motion to disclose the identity of the confidential informant and a motion to suppress, alleging that the search warrant was illegally issued because, among other things, the magistrate was misled by information in the affidavit that the officer knew was false or would have known was false except for his reckless disregard for the truth. After a hearing, the trial court denied both motions.

Motion to SUPPRESS

Parameters of Review

When reviewing a motion to suppress evidence obtained pursuant to a search warrant, the trial court is to look to the totality of the circumstances as contained within the four corners of the affidavit. Our review is limited to examining the four corners of the affidavit to determine whether probable cause existed. In this review, we are to determine whether there was a fair probability, not an actual showing, that contraband or evidence of a crime would be found in a particular place in light of the totality of the facts set forth in the affidavit. The officer’s affidavit must have provided the magistrate with a substantial basis for concluding that a search would uncover evidence of wrongdoing. The informant’s reliability or basis of knowledge is relevant in determining the value of his assertions. Corroboration of the details of an informant’s tip through independent police investigation can also be relevant in the magistrate’s determination of probable cause.

Likewise, the affidavit should set forth the foundation for the officer’s belief in an informant’s credibility and veracity. However, “a deficiency in one may be compensated ... by a strong showing as to the other, or by some other indicia of reliability,” all of which are relevant considerations under the totality of the circumstances. Additionally, if a defendant establishes by a preponderance of the evidence that the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the affidavit and that, without the affidavit’s false statement, it is insufficient to establish probable cause, the search warrant must be voided. As a reviewing court, we are to ensure that, after excluding statements shown by a preponderance of the evidence to be false, the magistrate had a substantial basis for concluding that probable cause existed.

The Texas Constitution places a heavy burden on the courts of appeals. Once we determine the facts of a specific case, “the decision of [the court of appeals] shall be conclusive on all questions of fact brought before [us] on appeal or error.” We therefore cannot rely on a higher court to correct any misunderstanding of the facts of which we may be guilty. Because of this unique duty, we have carefully examined the record to glean the facts actually established therein. Similarly, the fact that legal determinations are properly reviewed by the Texas Court of Criminal Appeals does not decrease our equally heavy burden to apply the law in accordance with statutory and constitutional mandates, as well as consistently with case precedent.

The State’s Waiver Argument

On appeal, the State argues, “To the extent that Appellant’s briefing may be seeking to raise something other than a Franks claim under the Fourth Amendment, such claim(s) should be held waived.” The State also argues, “Appellant’s Franks complaint was not preserved at trial.”

In her amended motion to suppress, Appellant relies on both state and federal constitutional protections, as she does on appeal. We hold that Appellant did not waive her state constitutional claims. As to the Franks complaint, the State concedes that Appellant’s amended motion to suppress includes a Franks complaint, which it describes as “one boilerplate accusation — that there was false information in the affidavit.” The State argues that Appellant never identified the false information either in her motion or at the hearing. The State is incorrect. As we indicated in our prior opinions, the Franks issue was squarely before the trial judge. It was presented in the amended motion to suppress, and it was raised in the hearing on the motion.

The State asks us to employ a hyper-technical analysis of both the pleadings and counsels’ statements in the trial court. This court is well aware that lawyers are rarely as articulate as they would prefer to be when faced with the fast-paced and often unpredictable situations encountered in the trial court. Were we to employ the scrutiny the State demands in the case now before this court, we would be compelled to hold that the State conceded at the hearing that the search was conducted without a valid warrant. The prosecutor stated in open court,

The State is conceding that the arrest was warrantless. In other words, that would force the State to put their witnesses on first.
We do not in any way concede that the search was not warrantless. [Emphasis added.]

Were we to read that statement as critically as the State demands, this opinion would end here.

Because we recognize that, unlike an appellate court, the trial court affords less opportunity for prepared remarks, we read statements of counsel in a common-sense manner. Consequently, we recognize that both the trial judge and prosecutor understood Appellant’s Franks complaint, as does this court. Opting not to call the affiant a liar, Appellant’s counsel, who is a former police officer, argued to the trial court that Officer X’s affidavit contained statements that were not true, not because of the officer’s “negative or bad faith intentions,” but because of a reckless disregard for the truth. Appellant also stated specifically to the trial court, “I want to try to show they did not observe him: they did do a search of the informant and were not able to see, and it’s very well possible that the drugs came from other locations.”

At the conclusion of the hearing, Appellant argued that the informant was unreliable and that the information he supplied that was used in the affidavit was unreliable. She also argued that, although Officer X had stated in his affidavit that he was able to see the informant enter Appellant’s apartment, the record reflected that Officer X was not able to see the informant.

On appeal, Appellant argues,

Contrary to his testimony, Officer [X]’s affidavit says nothing about a Crime Stoppers tip and then later finding an informant to do the buy, or that it was the officer who pointed out the “breezeway that the apartment was located in” to the informant (not the other way around as his affidavit states) but makes it appear this was all done by one “confidential informant.”

As she further explains in her reply brief,

The key issue in this case revolves around a misrepresentation made by the police officer when he swore out his warrant affidavit before the issuing magistrate. The officer/affiant contradicted his affidavit in court in his sworn testimony about the “particular place” to be searched. The issue for the Court to determine is whether this merits a reversal of Appellant’s conviction.

The State’s arguments regarding waiver are without merit and contrary to the record now before this court. We hold that Appellant preserved the challenged claims.

Merits of the Appeal

The affidavit in question states, in its entirety:

MY BELIEFS ARE BASED ON THE FOLLOWING FACTS AND CIRCUMSTANCES:
1. That your affiant, [X] #2615, has been a Fort Worth Police Officer for over nine years and is currently assigned to the Special Operations Division, Narcotic Section.
2. That your affiant met with a reliable confidential informant concerning the illegal possession and distribution of crack cocaine from 5308 E. Rosedale # 158. That the confidential informant provided the following information:
A. That black female approximately 38-42 years of age, 5'08"-5'10" tall and weighing approximately 125-135 pounds, medium complexion and medium black hair[], residing at 5308 E. Rosedale # 158, is involved in the distribution of crack cocaine.
B. That the confidential informant has personally observed the suspect in possession of and distributing crack cocaine from within 5308 E. Rosedale # 158.
3. That your affiant met with the confidential informant at a prearranged location. The informant specifically pointed at the location described in the body of this affidavit.
That your affiant confirmed the location appeared exactly as described by the informant. Your affiant further corroborated much of the informant[’]s information through surveillance and independent investigation.
4. That in the past, the informant has displayed the ability to accurately identify crack cocaine which was later seized and confirmed by laboratory analysis to be a controlled substance. That the informant has provided information that has le[ ]d to the confiscation of crack cocaine and the arrest of individuals for possession of controlled substance.
5. That on June 27th, 2001, your affiant met with a reliable and confidential informant. At this time, your affiant provided the confidential informant with twenty dollars of U.S. currency and instructed the confidential informant to go to 5308 E. Rosedale # 158 and purchase twenty dollars worth of crack cocaine [and] then return and meet with your affiant. Before leaving your affiant, the informant was searched and found to have no contraband on his person. Upon leaving your affiant, your affiant conducted a visual surveillance as the confidential informant went into the apartment complex located at 5308 E. Rosedale # 158. Once inside, the confidential informant stayed a short period of time, then returned and met with your affiant. The confidential informant then produced an off-white rocklike substance that was purported to be crack cocaine.
The confidential informant stated that the purported crack cocaine was purchased from black female approximately 38-42 years of age, 5'08"-5'10" tall and weighing approximately 125-135 pounds, medium complexion and medium black hair. The informant was again searched by your affiant and again found to have no contraband on his person. The substance was subsequently field tested by your affiant, at which time the substance showed positive for crack cocaine.
6. That your affiant is aware t[hat] it is common for persons involved in narcotics to keep books, notes, ledgers, money orders, records pertaining to narcotics trafficking, files relating to the transportation, ordering, sale and distribution of narcotics, currency, financial instruments, jewelry and/or proceeds of narcotics trafficking. Also telephone and address books, papers reflecting names, addresses of possible subjects involved in the illicit sales of narcotics, property, materials used in the packing, cutting, or weighing up of narcotics and firearms.
7. That it is common for individuals involved in the possession and distri bution of narcotics to carry firearms, therefore to knock/announce could jeopardize the safety of officers entering the residence and/or allow the destruction of evidence.
8. That your affiant is well aware and stresses the need for the confidential informant in this investigation to remain anonymous for his/her personal safety as well as for the future success of ongoing narcotic investigations.
Therefore, I, the undersigned ask that a search warrant be issued according to the provisions of the State Law to search for and seize the controlled sub-stanee[,] namely crack cocaine, believed unlawfully possessed by black female approximately 38-42 years of age, 5'08"-5'10" tall and weighing approximately 125-135 pounds, medium complexion and medium black hair[,] at 5308 E. Rosedale # 158, in the City of Fort Worth, Tarrant County, State of Texas.

Appellant argues that Officer X wrote his affidavit in such a way that it gives the impression that he actually saw the confidential informant enter Apartment No. 158, when, in actuality, Officer X only saw the confidential informant enter a breezeway that led to Apartment No. 158 and three other apartments. Officer X testified that while he observed the informant enter the breezeway, he did not see the informant enter Apartment No. 158. Appellant argued at the hearing that Officer X exhibited bad faith in failing to verify that the informant entered Apartment No. 158. Relying on Franks v. Delaware, Appellant now contends that Officer X’s reckless disregard for the truth renders the search warrant invalid under the Fourth Amendment.

In Franks, the United States Supreme Court stated that if a defendant establishes by a preponderance of the evidence that a false statement was included by the affiant knowingly and intentionally, or with reckless disregard for the truth, and that without the affidavit’s false statement, it is insufficient to establish probable cause, the search warrant must be voided. If the statement only evidences the police’s mere negligence in checking or recording the facts relevant to a probable cause determination, then it is beyond the scope of Franks. That is, a misstatement in an affidavit that is the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not render invalid the warrant based on it.

At the Franks hearing, Officer X admitted that although he had received a Crime Stoppers tip that narcotics were sold out of the apartment in question, he did nothing to corroborate the tip or to confirm its information. That is, he did -not perform surveillance on the apartment, did not check the trash, and did not confirm with other sources of information the report of drug-dealing there. When asked what he did to corroborate the Crime Stoppers tip, Officer X testified that, in checking the tip, “[w]e’ll try to pull up addresses or names in the county computer.” When asked whether he did so in this case, his response was, “I’m sure I did.”

The record reflects no other attempts to verify the information relayed in the Crime Stoppers tip until the officers set up the controlled buy. Officer X also admitted that one of the persons named as dealing drugs out of the apartment was a ten-year-old child. Officer X considered the tip to have no bearing on the probable cause contained in the affidavit.

Because (1) the tip came from an anonymous Crime Stoppers informant, (2) Officer X did not verify the information in the tip, and (3) he did not verify the reliability of the tip, the record clearly shows that Officer X’s statements in the second, third, and fourth numbered paragraphs of the affidavit—

2. That your affiant met with a rehable confidential informant concerning the illegal possession and distribution of crack cocaine from 5308 E. Rosedale # 158. That the confidential informant provided the following information:
A. That black female approximately 38-42 years of age, 5'08"-5'10" tall, and weighing approximately 125-135 pounds, medium complexion and medium black hair[], residing at 5308 E. Rosedale # 158, is involved in the distribution of crack cocaine.
B. That the confidential informant has personally observed the suspect in possession of and distributing crack cocaine from within 5308 E. Rosedale # 158.
3. That your affiant met with the confidential informant at a prearranged location. The informant specifically pointed at the location described in the body of this affidavit.
That your affiant confirmed the location appeared exactly as described by the informant. Your affiant further corroborated much of the informant[’]s information through surveillance and independent investigation[; and]
4.That in the past, the informant has displayed the ability to accurately identify crack cocaine which was later seized and confirmed by laboratory analysis to be a controlled substance. That the informant has provided information that has le[ ]d to the confiscation of crack cocaine and the arrest of individuals for possession of controlled substance-

are either untrue or statements made with reckless disregard for the truth of the statements, according to Officer X’s own testimony.

As Appellant points out, the affidavit clearly states that Officer X personally met with a confidential informant who pointed at “the location described in the body of this affidavit.” This informant, according to the affidavit, provided information about drug-dealing in Apartment No. 158. But Office X did not testify that any informant pointed out the apartment to him. Rather, Officer X testified that he pointed out .the apartment to the informant whp made the buy. Officer X testified that before he arranged the undercover buy, the only information he possessed had come from the anonymous Crime Stoppers tip. Officer X testified that, because the initial informant was actually an anonymous Crime Stoppers tipster, the probable cause was limited to the undercover buy. The police officers set up the buy, got the informant, and directed him to the apartment. In describing his actions, in response to the prosecutor’s questions, Officer X testified:

A. Well, we get a confidential informant, and what we basically do is we send him to the apartment with currency that we give [him] and get [him] to buy narcotics in the apartment.
Q. Did you, in fact, get a confidential informant in this case?
A. Yes.

Officer X also explained,

We drove by and pointed out the breezeway that the apartment was located in, told him which apartment it was — basically what we’ll do is we’ll search their pockets to make sure they don’t have narcotics on them or cash because we don’t want them to take that into the apartment with them. We want to make sure what they bring out of the apartment they didn’t go in with, if that makes sense.
Pointed out the apartment, take him around down just down the block, drop him off, watch him walk back to the apartment. They go in the apartment and do what they do; they come back out of the apartment directly to us.

Officer X’s testimony made it clear that the informant referred to in paragraph five of his affidavit was not the person referred to in paragraphs two, three, and four. All of the information referred to in paragraphs two and three was received before Officer X contacted the informant who made the buy and was provided by someone who knew which apartment was involved and directed Officer X to that apartment. Paragraph four refers to the informant who, according to the affidavit, provided the original information and directed Officer X to the apartment.

In his testimony, Officer X admitted that the original information which he attributed to a reliable informant in his affidavit had actually come instead from the anonymous tipster. He referred to that person in paragraph two as “a reliable informant,” and subsequently, in paragraphs two, three, and four as “the confidential informant” and “the informant.” According to the affidavit, the reliable confidential informant of paragraphs two, three, and four pointed out the apartment to Officer X. If Officer X was not referring to the anonymous tipster in his testimony, then he has created a second informant out of whole cloth.

Paragraph five shifts gears and refers to June 27, 2001. Officer X met with “a reliable and confidential informant.” Officer X also admitted in his testimony that this second informant was not the source of the original information. Subsequent references to the second informant are to “the confidential informant.” Although the affidavit states that the initial informant pointed out the apartment to Officer X, in regard to the informant in paragraph five, Officer X testified that he himself pointed out the apartment to the informant who was to make the buy:

A [Officer X], We had a Tarrant County Crime Stoppers complaint on that apartment.
Q. Did the Port Worth Police Department Narcotics Division receive several tips from Crime Stoppers in the past?
A. Yes.
Q. Has it been proven to be a credible and reliable source of information for the police department?
A. Yes.
Q. [On] June 29 of 2001[J what did you do in response to that tip?
A. We did what we call a cover[t] buy at the apartment.
Q. Could you talk to the Court about what you mean?
A. Well, we get a confidential informant, and what we basically do is we send him to the apartment with currency that we give [him] and get [him] to buy narcotics in the apartment.
Q. Did you, in fact, get a confidential informant in this case?
A. Yes.

Officer X got a confidential informant, pointed out the breezeway, and “told him which apartment it was.”

Officer X’s testimony makes clear that the informant who told the police which apartment he or she was reporting as the site of the drug-dealing was not the same informant who had to be shown where the breezeway was and told “which apartment it was.”

Officer X also stated,

A. Told him what we were looking for, which was crack cocaine; sent him into the apartment with $20, and instructed him to try to buy crack cocaine from the apartment.

Officer X testified that they were in his car when he gave the informant his instructions. The car was around the corner rather than in the parking lot of the apartment. Although Officer X was able to watch the informant until he got to the breezeway, he was not able to watch him after he had entered the breezeway. This testimony directly contradicts the portion of the fifth-numbered paragraph in the affidavit in which Officer X stated that he watched the informant enter Apartment No. 158: “Upon leaving your affiant, your affiant conducted a visual surveillance as the confidential informant went into the apartment complex located at 5308 E. Rosedale # 158. Once inside, the confidential informant stayed a short period of time, then returned and met with your affiant.” [Emphasis added.]

Officer X also admitted that when the police returned to the apartment with the warrant to make the arrests, a man was just outside Apartment No. 158. The man dropped some drugs on the.ground when he saw the officers approach. Inside the breezeway are two apartments downstairs and a stairway leading to two apartments upstairs. A person who went into the breezeway, then, would have access to four apartments as well as to the common areas both upstairs and downstairs.

The misstatements in the affidavit supporting the warrant are significant. As statements that are either untrue or made with reckless disregard for the truth, paragraphs two, three, and four of the affidavit, and the portion of paragraph five quoted above, must be disregarded in considering the sufficiency of the affidavit to establish probable cause to justify the warrant. The only evidence that remains in the affidavit from which to determine probable cause to search Apartment No. 158 and seize evidence therefrom are the first-numbered paragraph (providing that Officer X, #2615, has been a Fort Worth Police Officer for over nine years and is currently assigned to the Special Operations Division, Narcotic Section) and a portion of the fifth-numbered paragraph (stating that the officers provided a confidential informant with money, searched him before he left and when he returned, and that he had a substance purporting to be crack cocaine when he returned that he claimed he purchased from a black female approximately 38-42 years of age, 5'08"~ 5'10" tall and weighing approximately 125-135 pounds, medium complexion and medium black hair). That evidence is not enough.

It is a well-established tenet of constitutional law that the information from the unnamed informant alone will not establish probable cause. This tenet applies equally to the unnamed tipster. As our sister court in Austin has noted,

In evaluating whether anonymously provided information suffices to support a finding of probable cause, the informant’s veracity, reliability, and basis of information are still “highly relevant” factors. Accordingly, an anonymous telephone call alone rarely will merit the requisite level of suspicion to justify even an investigative detention. The anonymously provided information must contain some indicia of reliability or be “reasonably corroborated” by police before it can be used to justify a search. Moreover, mere corroboration of details that are easily obtainable at the time the information is provided will not support a finding of probable cause. In addition, wholly conclusory statements in the affidavit will not suffice.

Neither Officer X nor this court considers the uncorroborated Crime Stoppers tip sufficient to support the warrant in question. As Officer X admitted, the only confidential informant other than the person who made the buy was the anonymous Crime Stoppers tipster.

Examining the remainder of paragraph five, it is glaringly deficient of any justification for relying on any representations made by the confidential informant. There is nothing to explain why he should be considered rehable and trustworthy. Except for the informant’s report to Officer X, the affidavit provides no reason to believe the informant got the rock of crack cocaine from an occupant of Apartment No. 158 rather than from an occupant of one of the other three apartments in the breezeway or from someone standing out in the breezeway area.

The State argues that the controlled buy alone “provides plenty of bases to corroborate the informant’s statement.” We disagree, especially in fight of the fact that Officer X admitted that he did not actually see the informant enter the apartment in question. Officer X also admitted that he searched only the informant’s pockets and that he could have had drugs concealed elsewhere on his body. Controlled buys that have constituted sufficient corroboration of an informant’s statement have been those in which officers either have seen the transaction itself or have, at the very least, seen the informant enter the door of the specific house or apartment and come out with the drugs. Our sister court in Corpus Christi held an affidavit insufficient because it contained no information regarding the reliability of the informant and indicated no personal observations of the affiant regarding the transaction between the defendant and the affiant’s agent. In Adkins, the El Paso court held an affidavit insufficient because it did not indicate whether the source of the tip was direct observation or reliable hearsay, it did not indicate a basis for the informant’s reliability such as past performance, and it did not explain the nexus between the original tip and the officer’s corroborative details. In reversing the decision of the El Paso court, the Texas Court of Criminal Appeals nevertheless approved the lower court’s reasoning on this issue.

Considering the affidavit exclusive of the statements that were untrue or made with reckless disregard for the truth of the statements, it contains a statement of Officer X’s credentials and an uncorroborated representation by an informant whom Officer X may or may not have known before that the informant went to the apartment in question and bought crack cocaine with money that Officer X provided him. We hold that the surviving portion of the affidavit is inadequate to support a neutral magistrate’s probable cause determination that would justify the warrant. Consequently, we hold that the trial court abused its discretion in denying Appellant’s motion to suppress. We sustain Appellant’s first point. In light of our disposition of Appellant’s first point, we do not reach her remaining points.

Conclusion

Having held that the search warrant was invalid and that there was no probable cause for the search and seizure, we reverse the trial court’s judgment and remand this case for trial without the illegally seized evidence.

HOLMAN, J. dissents without opinion.

      . See Tex.R.App. P. 50.

      . Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983).

      . U.S. Const, amend. IV; Tex. Const, art. I, § 9; Tex.Code Crim. Proc. Ann. art. 18.01(b) (Vernon 2005); Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993); cf. Cates v. State, 120 S.W.3d 352, 355 n. 3 (Tex.Crim.App.2003) (setting forth the distinction between a suppression hearing and a Franks hearing, at which additional evidence may be admitted to show the falsity of assertions within an affidavit).

      . See Gates, 462 U.S. at 239, 103 S.Ct. at 2332; Hennessy v. State, 660 S.W.2d 87, 89 (Tex.Crim.App. [Panel Op.] 1983).

      . Gates, 462 U.S. at 236, 103 S.Ct. at 2331.

      . Id. at 230, 103 S.Ct. at 2328.

      . Id. at 241-42, 103 S.Ct. at 2334.

      . Id. at 233, 103 S.Ct. at 2329.

      . Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).

      . Gates, 462 U.S. at 236, 103 S.Ct. at 2331; see Bower v. State, 769 S.W.2d 887, 902 (Tex.Crim.App.) (holding we do not conduct a de novo review but look to the evidence as a whole and determine whether there is substantial evidence to support the magistrate's decision), cert. denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App.1991).

      . Tex. Const, art. V, § 6.

      . See Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676.

      . Id.

      . Id. at 170, 98 S.Ct. at 2683.

      . Id. at 171, 98 S.Ct. at 2684.

        .See Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Bower, 769 S.W.2d at 902.

        .Janecka v. State, 739 S.W.2d 813, 825 (Tex.Crim.App.1987).

        .See Parish v. State, 939 S.W.2d 201, 203 (Tex.App.-Austin 1997, no pet.) (citations omitted).

      . Id.

      . See, e.g., Richardson v. State, 622 S.W.2d 852, 856 (Tex.Crim.App.1981); State v. Ozuna, 88 S.W.3d 307, 312-13 (Tex.App.-San Antonio 2002, pet. ref'd).

      . Dees v. State, 722 S.W.2d 209, 214-15 (Tex.App.-Corpus Christi 1986, pet. ref’d).

      . Adkins v. State, 675 S.W.2d 604, 607 (Tex.App.-El Paso 1984), rev'd on other grounds, 717 S.W.2d 363 (Tex.Crim.App.1986).

      . Adkins, 717 S.W.2d at 364.

      . See Tex.R.App. P. 47.1.