IN THE
TENTH COURT OF APPEALS
No. 10-10-00274-CR
CHRISTOPHER KEITH SCHMOTZER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 09-01287-CRF-85
MEMORANDUM OPINION
Christopher Schmotzer was convicted of murder and sentenced to life in prison.
TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Because the trial court did not err in
denying his motion to suppress and in admitting photographs, the trial court’s
judgment is affirmed.
BACKGROUND
William Johnson and William Stephens, Jr. were at Poets Bar on January 3, 2009.
Johnson was approached by a man about the name on Johnson’s jersey. The man
questioned Johnson about whether he played the online game Worlds of Warcraft. The
man said he had played someone with the same name as on the back of Johnson’s
jersey. Johnson replied that the name was of a famous hockey player and that Johnson
did not play the online game. Johnson said the conversation ended awkwardly and the
man walked away. Later, when Johnson and Stephens were leaving, Johnson gave
Stephens a ride to his pickup parked in the back parking lot. There, they decided to
throw a football around. Johnson saw the same man who had approached him earlier
standing next to a pickup parked next to a light pole watching them. The man gave
Johnson a cold stare, like the man despised Johnson. Johnson eventually left Stephens
in the parking lot in Stephens’ pickup. Johnson saw the man still standing at his
pickup. Stephens was later found dead; seat belted in his pickup but slumped out of
the open driver’s side door. He had been shot in the head through the door of his
pickup.
MOTION TO SUPPRESS
In his first issue, Schmotzer argues that the trial court erred in denying his
motion to suppress evidence, a gun and ammunition, seized from his pickup without a
warrant. The State did not contest that the evidence was seized without a warrant.
Applicable Law
In a hearing on a motion to suppress evidence based on an alleged Fourth
Amendment violation, the initial burden of producing evidence that rebuts the
presumption of proper police conduct is on the defendant. Ford v. State, 158 S.W.3d 488,
492 (Tex. Crim. App. 2005). This burden may be met by establishing that a search or
seizure occurred without a warrant. Id. After this showing is made, the burden of
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proof shifts to the State, at which time the State is required to establish that the search or
seizure was conducted pursuant to a warrant or was reasonable. Id.
Generally, a search conducted without a warrant is considered per se
unreasonable. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). But there is an
exception for vehicles—a warrantless search of a vehicle is reasonable if law
enforcement officials have probable cause to believe the vehicle contains contraband.
Id. In addition to the mobility element, less rigorous warrant requirements govern
vehicles because the expectation of privacy with respect to one's vehicle is significantly
less than that relating to one's home or office. Id. Probable cause exists where the
known facts and circumstances are sufficient to warrant a man of reasonable prudence
in the belief that contraband or evidence of a crime will be found. Id. Known facts and
circumstances include those personally known to law enforcement officers or those
derived from a "reasonably trustworthy" source. Id.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). We afford almost total deference to a trial court's determination of the historical
facts that the record supports, especially when the implicit fact-finding is based on an
evaluation of credibility and demeanor. Id. However, when application-of-law-to-fact
questions do not turn on the credibility and demeanor of the witnesses, we review the
trial court's ruling on those questions de novo. Id. We also review the trial court's
application of the law de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
Schmotzer v. State Page 3
The trial judge is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.
Crim. App. 2007). When reviewing a trial court's ruling on a motion to suppress, we
view all of the evidence in the light most favorable to the ruling. State v. Garcia-Cantu,
253 S.W.3d 236, 241 (Tex. Crim. App. 2008). When, as here, the trial court does not enter
findings of fact, we infer the necessary factual findings that support the trial court's
ruling if the evidence, viewed in the light most favorable to the ruling, support the
implied fact findings. Id.
Applicable Facts and Investigation
At the hearing on the motion to suppress, Det. Arnold testified that he was called
to a back parking lot at Poets Bar where Stephens was found shot in the head while in
his pickup. By the time Arnold arrived, Stephens had been removed and taken to the
hospital. A .40 caliber shell casing was found 20 feet from Stephens’ pickup. Arnold
viewed surveillance videos from the bar and the liquor store next door and saw a man
wearing light pants leaving Stephens’ pickup and then saw a dark-colored 4-door
pickup leaving the parking lot. Stephens’ friend, Will Johnson, told Arnold about a
verbal incident in the bar between Johnson and a white male wearing a blue shirt, light
pants, and tan shoes regarding the game, Worlds of Warcraft. Johnson also told Arnold
about a later incident with the same person in the parking lot. The person was standing
next to his pickup, watching Johnson and Stephens throw a football. The person was
still there when Johnson left Stephens at his pickup. A bar waitress identified the
person as Schmotzer. Arnold spoke with Schmotzer’s wife who confirmed that he had
Schmotzer v. State Page 4
been at the bar, was wearing a dark shirt, khaki pants and light-colored loafers, played
Worlds of Warcraft, drove a 4-door, red-colored pickup, and kept a handgun in his
pickup.
Arnold and another detective met with Schmotzer at his work. Schmotzer
agreed to speak with them. Arnold testified at the hearing that Schmotzer was not
under arrest and was free to leave. Schmotzer confirmed that he was at Poets Bar the
night of the murder; played Worlds of Warcraft; spoke with Johnson about Worlds of
Warcraft; wore a blue shirt, khaki pants, and tan loafers; drove a 4-door maroon pickup;
watched people playing football in the parking lot; left in the same direction as the
pickup in the video; and owned a .40 caliber handgun which he kept under the back
seat of his pickup. Arnold asked Schmotzer if he could see the gun, and Schmotzer
agreed. When attempting to access the pickup, Arnold, due to officer safety, told
Schmotzer not to open the door. Arnold opened the door of the pickup and located the
handgun and .40 caliber ammunition under the back seat. The handgun and
ammunition were seized but neither Schmotzer nor his pickup was seized at that time.
On appeal, Schmotzer argues that the search was unreasonable because allowing
the officers to see the gun was not the same as giving consent to search the pickup and
seize the gun and ammunition. In making its oral ruling, the trial court found that the
officer had probable cause to search. Given the evidence developed at the hearing on
the motion to suppress, we agree. The facts and circumstances known to Det. Arnold at
the time he opened the door to Schmotzer’s pickup were sufficient to warrant a man of
reasonable prudence to believe that Schmotzer was the person who shot Stephens and
Schmotzer v. State Page 5
that the gun used was in Schmotzer’s pickup. Accordingly, the trial court did not err in
denying Schmotzer’s motion to suppress, and Schmotzer’s first issue is overruled.
PHOTOGRAPHS
In his second issue, Schmotzer complains that the trial court erred in admitting
numerous “gruesome” photographs into evidence over his Rule 403 objection. TEX. R.
EVID. 403. The specific photographs are State’s Exhibits, 25-30, 44, 156 and 157.
Schmotzer argues that the prejudicial nature of the photographs substantially
outweighed their probative value.
Relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. A court may consider
many factors in determining whether the probative value of photographs is
substantially outweighed by the danger of unfair prejudice, including: the number of
exhibits offered, their gruesomeness, their detail, their size, whether they are in color or
black-and-white, whether they are close up, whether the body depicted is clothed or
naked, the availability of other means of proof, and other circumstances unique to the
individual case. Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010); Santellan v.
State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997). The admissibility of photographs
over an objection is within the sound discretion of the trial court. Davis, 313 S.W.3d at
331; Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Autopsy photographs
are generally admissible unless they depict mutilation of the victim caused by the
autopsy itself. Davis, 313 S.W.3d at 331; Santellan, 939 S.W.2d at 172.
Schmotzer v. State Page 6
Stephens was shot in the head while he was sitting in his pickup. All the
photographs complained of were 8 x 10 color photos.
Crime Scene Photographs
Exhibits 25-30 were photos of Stephens in his pickup as he was being removed
by paramedics and placed on a gurney. Exhibit 25 depicts someone from EMS holding
onto Stephens’ head as he appears to be falling out of his pickup. The photo depicts
blood covering Stephens’ left forearm and hand and blood on the pavement below.
Exhibit 26 depicts EMS personnel and Stephens’ left hand and forearm covered in
blood. Exhibit 27 depicts Stephens leaning out of his pickup. His right hand has some
blood on it. Stephens’ head is not visible in this photo. Exhibit 28 depicts EMS
personnel holding Stephens upright and attaching a neck brace. Blood is shown on
Stephens’ face and t-shirt. Exhibit 29 is a close up photo of Stephens’ head on the
gurney. His face is almost entirely covered in blood. Exhibit 30 depicts the interior of
Stephens’ pickup after he has been removed. Blood is shown on the lower side of the
driver’s seat and on the side floorboard. None of these exhibits, except possibly Exhibit
29 is overly gruesome. And although Exhibit 29 is rather gruesome, the disturbing
nature of this picture is primarily due to the injury caused by Schmotzer. After
reviewing the photos in light of the relevant factors, we hold that the probative value of
the photos was not substantially outweighed by the danger that they unfairly
prejudiced Schmotzer.
Schmotzer v. State Page 7
Autopsy Photographs
Exhibits 44, 156, and 157 were introduced through Dr. Leisha Wood of the Travis
County Medical Examiner’s Office. Exhibit 44 is a close up of Stephens’ face after it had
been cleaned up but before the autopsy. The State used this photo so Dr. Wood could
identify Stephens as the person on which she performed the autopsy. She explained
that the dark purple areas around Stephens’ eyes were due to the fracturing of
Stephens’ skull which caused blood to leak into the soft tissue. Exhibits 156 and 157 are
photos taken during the autopsy of the entrance and exit wounds, respectively. Both
wounds are clean. These photos are not gruesome, and only depict the damage
perpetrated by Schmotzer. Likewise, after reviewing the photos in light of the relevant
factors, we hold that the probative value of the autopsy photos was not substantially
outweighed by the danger that they unfairly prejudiced Schmotzer.
Accordingly, the trial court did not err in overruling Schmotzer’s objections to
these Exhibits, and his second issue is overruled.
PRO SE BRIEF
Unhappy with his appointed counsel’s brief, Schmotzer requested that we allow
him to file his own brief and that we allow him access to the record. He also presented
a copy of his own brief and later, a motion for an evidentiary hearing. The State filed a
motion to strike Schmotzer’s brief.
A criminal appellant has no right to hybrid representation. Robinson v. State, 240
S.W.3d 919, 922 (Tex. Crim. App. 2007); Scheanette v. State, 144 S.W.3d 503, 505 n.l (Tex.
Crim. App. 2004); Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001); Patrick v.
Schmotzer v. State Page 8
State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995); Turner v. State, 805 S.W.2d 423, 425 n.1
(Tex. Crim. App. 1991). For example, when an appellant has counsel and counsel has
filed a brief, the appellant has no right to file another brief. See Scheanette, 144 S.W.3d at
505 n.l; Patrick, 906 S.W.2d at 498; Turner, 805 S.W.2d at 425 n.1. But this prohibition on
hybrid representation is not absolute. See, e. g., Warren v. State, 98 S.W.3d 739, 741 (Tex.
App.—Waco 2003, pet. ref'd). We can consider pro se issues in the interest of justice even
though an appellant has no right to hybrid representation. See Williams v. State, 946
S.W.2d 886, 892 (Tex. App.—Waco 1997, no pet.); see also Guyton v. State, No. 10-07-
00070-CR, 2009 Tex. App. LEXIS 839 (Tex. App.—Waco Feb. 6, 2009, pet. ref’d) (not
designated for publication).
In an abundance of caution, we reviewed the issues raised in Schmotzer’s pro se
brief and find that the “interest of justice” does not require that we consider, address, or
resolve the issues Schmotzer has presented. Accordingly, Schmotzer’s “Motion for
Leave to File Supplamental Brief,” “Motion to Obtain Documents, Transcripts and or
Complete Appellate Record,” “Motion to Suspend Requirements under TRAP Rule 2,”
and Motion for Evidentiary Hearing” will not be acted upon. See Ex parte Bohannan, No.
AP-76,363, 2011 Tex. Crim. App. LEXIS 618, *2 n.1 (Tex. Crim. App. May 11, 2011)
(“Because applicant is represented by counsel, we disregard his numerous pro se
submissions and take no action on them.”). Further, the State’s motion to strike
Schmotzer’s brief is dismissed as moot.
Schmotzer v. State Page 9
CONCLUSION
Having overruled each of Schmotzer’s issues properly presented, we affirm the
trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 12, 2011
Do not publish
[CRPM]
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