PD-0446-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/1/2015 9:27:59 AM
PD-0446-15 Accepted 5/1/2015 11:50:34 AM
ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
ASHLEY JACK-CODY HENDERSON, §
Appellant §
§ CAUSE NO. 11-13-00060-CR
v. §
§ TRIAL COURT NO. 6547
THE STATE OF TEXAS, §
Appellee §
PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
AT EASTLAND, TEXAS
CHIEF JUSTICE JIM WRIGHT, PRESIDING
PETITION OF PETITIONER (APPELLANT)
COPELAND LAW FIRM PO
Box 399
Cedar Park, Texas 78613 Tel.
512-897-8196
Fax. 512-215-8144
Email: tcopeland14@yahoo.com
May 1, 2015
TIM COPELAND
State Bar No. 04801500
Attorney for Appellant
TABLE OF CONTENTS
Page
Table of Contents i,ii
Index of Authorities iii,iv
Identity of Trial Court and Parties 1
Statement Regarding Oral Argument 2
Statement of the Case 3
Statement of the Procedural History of the Case 4
Grounds for Review 4
Ground for Review Number One
The state offered two items (pills and gloves) into
evidence over Henderson’s objection that their evidentiary
chain of custody was insufficient. Later, Henderson sought to
“un-admit” the two offending items on the additional basis of a
lack of probable cause justifying the search where the two items
were seized. Was the Court of Appeals correct in holding that
Henderson’s subsequent objection to those two items on the
basis of a lack of probable cause was untimely where the record
indicates that the state consented to a re-litigation of the issue
by presenting additional testimony and argument upon renewal
of Henderson’s objection?
Ground for Review Number Two
The Court of Appeals erred when it sustained the trial
court’s finding that there was probable cause to search
Henderson’s car without a warrant.
Summary of the Argument 5
TABLE OF CONTENTS, continued
Page
Background 6
Ground of Review Number One 8
Ground of Review Number Two 8
Statement of Pertinent Evidence 8
Court of Appeals’ Decision 10
Argument 12
Prayer 16
Certificate of Service and of Compliance with Rule 9 16
3
INDEX OF AUTHORITIES
Authorities Page
Texas Court of Criminal Appeals’ cases
Carmouche v. State 12
10 S.W.3d 323 (Tex. Crim. App. 2000)
Gonzales v. State 13
195 S.W.3d 114 (Tex. Crim. App. 2006)
Guzman v. State 12
955 S.W.2d 85 (Tex. Crim. App. 1997)
Rachal v. State 4,13,
917 S.W.2d 799 (Tex. Crim. App. 1996) 14
Romero v. State 13
800 S.W.2d 539 (Tex. Crim. App. 1990)
State v. Ross 13
32 S.W.3d 853 (Tex. Crim. App. 2000)
Wilson v. State 11
71 S.W.3d 346 (Tex. Crim. App. 2002)
Court of Appeals’ cases
Burke v. State 12
27 S.W.3d 651 (Tex. App. – Waco 2000, pet. ref’d)
INDEX OF AUTHORITIES, continued
Authorities Page
Statutes
TEX. HEALTY & SAFETY CODE §481.115 (West Supp. 2012) 3
TEX. PENAL CODE 12.42(b) (West Supp. 2012) 3
TEX. R. EVID. 103(a)(1) 11
Constitution
Fourth Amendment, United States Constitution 15
IDENTITY OF TRIAL COURT AND PARTIES TO
THE HONORABLE COURT OF APPEALS:
NOW COMES Ashley Jack-Cody Henderson, appellant, who would show
the Court that the trial court and interested parties herein are as follows:
HON. SHANE HADAWAY, Judge Presiding, 39th Judicial District Court,
Haskell County, P.O. Box 966, Haskell, Texas 79521.
ASHLEY JACK-CODY HENDERSON, appellant, TDCJ Number
183002, Robertson Unit, 12071 FM 3522, Abilene, Texas 79601.
EDWARD KEIN, trial attorney for appellant, 1622 Belt Line Rd., Ste. 201,
Carrollton, Texas 75006.
TIM COPELAND, appellate attorney for appellant, P.O. Box 399, Cedar
Park, Texas 78613.
MICHAEL FOUTS, Haskell County District Attorney, trial and appellate
attorney for appellee, the State of Texas, P.O. Box 193, Haskell, Texas 79521.
Petition for Discretionary Review
Ashley Cody-Jack Henderson v. The
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes the clarity of the issue in this case is such that oral
argument would add nothing.
PD-0446-15
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
ASHLEY JACK-CODY HENDERSON, §
Appellant §
§ CAUSE NO. 11-13-00060-CR
v. §
§ TRIAL COURT NO. 6547
THE STATE OF TEXAS, §
Appellee §
PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
AT EASTLAND, TEXAS
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
A jury convicted Ashley Cody-Jack Henderson of possession of a controlled
substance, oxycodone, in an amount of 4 grams or more but less than 200 grams.
(See C.R. 1, p. 37 and TEX. HEALTY & SAFETY CODE §481.115 (West
Supp. 2012). The second-degree felony offense was enhanced by a prior felony
conviction, and the trial court assessed Henderson’s punishment at confinement for
60 years. (See C.R. 1, pp. 73-74 and TEX. PENAL CODE 12.42(b) (West Supp.
2012)).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The Eleventh Court of Appeals at Eastland, Texas, by Memorandum
Opinion dated March 26, 2015, affirmed Henderson’s conviction and sentence. A
copy of that opinion is hereto attached as if fully incorporated herein at length.
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE
The state offered two items (pills and gloves) into evidence over
Henderson’s objection that their evidentiary chain of custody was insufficient.
Later, Henderson sought to “un-admit” the two offending items on the additional
basis of a lack of probable cause justifying the search where the two items were
seized. Was the Court of Appeals correct in holding that Henderson’s subsequent
objection to those two items on the basis of a lack of probable cause was untimely,
where the record indicates that the state consented to a re-litigation of the issue by
presenting additional testimony and argument upon renewal of Henderson’s
objection? (See R.R. 4, 150-152 and Rachal v. State, 917 S.W.2d 799, 809 (Tex.
Crim. App. 1996)).
GROUND FOR REVIEW NUMBER TWO
The Court of Appeals erred when it sustained the trial court’s finding that
there was probable cause to search Henderson’s car without a warrant.
SUMMARY OF THE ARGUMENT
The Court of Appeals’ review of the trial court’s denial of Henderson’s
objection to introduction of evidence seized in the search of a vehicle was flawed
in two respects. In the first place, the appellate court erred when it held that
Henderson’s objection to the introduction of certain items of evidence had been
waived in the trial court. Henderson and the state “re-litigated” his objection when
he raised different grounds with regard to the submission of those items, and thus
Henderson’s issue on appeal concerning his objection to that evidence did comport
with a reviewable issue. The Court of Appeals also erred when it held that the
totality of the circumstances allowed for a conclusion that there was a fair
probability that contraband or evidence would be found in an automobile with
which Henderson had been connected. The rationale used by the Court of Appeals
in reaching that conclusion failed to account for such facts as: Henderson was not
arrested near his car; distinctive clothing found in the motel room supported a
belief that Henderson had participated in a burglary, but not necessarily that fruits
of that burglary would still be in the car; there was no incriminating evidence in
plain view in the car; there was no reason to suspect that the car would contain the
type of contraband the subject of the offense, and, finally and most importantly,
four days after the burglary, there was reason to suspect that evidence from that
burglary would still be in the car.
BACKGROUND
Dallas police officers suspected Henderson was responsible for burglaries in
the Dallas area and obtained a warrant to attach a mobile tracking device to a car
they had seen him drive. (R.R. 3, pp. 122-135, 163). On November 4, 2011, the
tracking device showed the car, an Acura, had been driven to a location in Haskell.
The Dallas police notified Haskell authorities of the car’s presence and of their
concerns and learned that a burglary of a drug store known as “The Drug Store”
had occurred in Haskell on that date. (R.R. 4, 112-113, 121-126). The tracking
device also showed that the car had stopped on its way back to Dallas from Haskell
at a location on Marrs Road outside of Haskell as well as a convenience store in
Throckmorton. (R.R. 3, pp. 77, p. 3). Officers from Haskell found evidence of
items taken from the store at the Marrs Road location, and they recovered video
from the convenience store’s surveillance system. (R.R. 3, pp. 77, 83). After
receipt of photo ID’s of Henderson from the Dallas Police Department, Haskell
County authorities compared the photos with the store’s surveillance video and
issued arrest warrants for Henderson and an associate. (R.R. 3, pp. 85-89).
On November 8, four days after the burglary, Haskell County law
enforcement officers traveled to Dallas. Working with the Dallas Police
Department, they tracked the Acura to a motel in Dallas. There, Dallas police
officers confirmed the room Henderson was in and executed the Haskell County
arrest warrant. (R.R. 3, pp. 204-206). When officers forced Henderson’s motel
room door, they found Henderson in the room with his girlfriend, and both were
arrested. The officers also recovered a cell phone, a cold weather mask, a baseball
cap, and tennis shoes from the room – the latter three items like those seen in the
video from The Drug Store’s surveillance DVD’s. (R.R. 3, pp. 106-109). The
officers then proceeded to the car with the tracking device parked in the motel’s
parking lot. Officers searched the Acura and found pills of the same manufacture
as those taken in the drugstore burglary hidden inside a “boom-box” in the car, as
well as gloves and tools a witness described as the type used in break-ins. (R.R. 4,
p. 63 and see State’s Exhibits Nos. 4, 2 and 33, respectively).
Shawn Barber, a 6-time prior felon, testified that he and Henderson’s
girlfriend, Jenny, accompanied Henderson on November 4, 2011, to Haskell where
he and Henderson burgled a pharmacy while Jenny waited in the car. (R.R. 4, pp.
195, 200). After the burglary, Barber testified that he and Henderson discarded the
pharmacy’s trashcan and other drug store paraphernalia, including papers with the
pharmacy’s logo, on a dirt road leading out of town after they sorted out the
valuable meds taken in the burglary. (R.R. 4, pp. 194-196; 200-2008). Barber
confirmed his and Henderson’s identities from various video stills taken from the
pharmacy’s surveillance videos. (R.R. 4, pp. 209-211). He also described the trio’s
stops on a road outside Haskell and at an Allsup’s convenience store in
Throckmorton before the trio returned to the Metroplex. (R.R. 4, p. 202).
GROUND FOR REVIEW NUMBER ONE
The state offered two items (pills and gloves) into evidence over
Henderson’s objection that their evidentiary chain of custody was insufficient.
Later, Henderson sought to “un-admit” the two offending items on the additional
basis of a lack of probable cause justifying the search where the two items were
seized. Was the Court of Appeals correct in holding that Henderson’s subsequent
objection to those two items on the basis of a lack of probable cause was untimely,
where the record indicates that the state consented to a re-litigation of the issue by
presenting additional testimony and argument upon renewal of Henderson’s
objection? (See R.R. 4, 150-152 and Rachal v. State, 917 S.W.2d 799, 809 (Tex.
Crim. App. 1996)).
GROUND FOR REVIEW NUMBER TWO
The Court of Appeals erred when it sustained the trial court’s finding that
there was probable cause to search Henderson’s car without a warrant.
STATEMENT OF PERTINENT EVIDENCE
As both grounds for review involve the legality of a search of Henderson’s
car, evidence pertinent to both issues is here presented.
Henderson was accused of burglarizing “The Drug Store” in Haskell, Texas,
on November 4, 2011. After his car was tracked to a motel in Dallas, Haskell law
enforcement officers joined Dallas police officers on November 8, 2011, in
arresting Henderson in his motel room. After his arrest, officers searched his
vehicle in the parking lot where pills, tools described as burglary tools, and a pair
of gloves were found. Henderson objected to the introduction of the pills and
gloves on the basis that the state had failed to establish a proper chain of custody.
(R.R. 3, pp. 103-104).1 His objection was overruled, but after the owner of the
pharmacy testified that the pills found in Henderson’s car could not be specifically
identified as those taken from The Drug Store, Henderson moved the trial court to
“un-admit” evidence concerning the pills (State’s Exhibit No. 4) as irrelevant to the
offense charged, as well as the evidence of State’s Exhibits Nos. 2 and 33
(mechanic’s gloves and tools also recovered from the car). (See, Lonnie
Meredith’s testimony at R.R. 4, pp. 337-144 and Henderson’s trial motion at R.R.
4, pp. 70-72, 150-152). Henderson asserted that there had been no consent to
search the car and that the automobile exception to a warrantless search did not
1
He objected to introduction of the tools on the basis that police lacked probable cause to search
the car. (R.R. 4, p.72).
apply. Thus, he argued, all of the evidence cited was “fruit of the poisonous tree.”
(R.R. 4, p. 151). The prosecution agreed that the only basis for a search lay in a
finding that the officers did, in fact, have probable cause when they searched
Henderson’s car, but the state also noted that Henderson had made no
contemporaneous objection to the admission of the evidence during trial. (R.R. 4,
pp. 151-152). Nevertheless, the state presented additional evidence on the matter
and re-urged the admission of the evidence covered by Henderson’s objection.
(R.R. 4, p. 152). After hearing testimony from the state’s witnesses and argument
of counsel on the issue again, the trial court denied Henderson’s motion to “un-
admit” State’s Exhibits Nos. 2, 4 and 33. (R.R. 4, p. 185).
COURT OF APPEALS’ DECISION
In his first issue on appeal, Henderson argued that “[t]he denial of [his]
objection to the introduction of evidence obtained from [the] search of his car was
error because there was no probable cause to believe the vehicle contained
evidence of criminal activity.” Specifically, he complained of the admission of
State’s Exhibit No. 2 (mechanic’s gloves), State’s Exhibit No. 4 (a pill bottle), and
State’s Exhibit No. 33 (burglary tools). Dallas police obtained all of those items
when they searched the black Acura in Dallas. When the State offered the gloves
and the pill bottle into evidence, Henderson first objected that the State had not
established a proper chain of custody. The trial court overruled that objection and
admitted the two exhibits. Later, however, Henderson asked the trial court to “un-
admit” the first two exhibits. The basis for his request to “un-admit” the two
exhibits was that there had been no showing of probable cause to search the Acura
(Henderson’s second issue on appeal and the same objection he had first levied
against introduction of the tools recovered from the car).
The appellate court held that Henderson’s second objection seeking to “un-
admit” the pills and gloves was not timely in the trial court, and that an argument
based on a lack of probable cause with regard to those two items could not be
made for the first time on appeal. (Slip op. at 6). The legal basis for the complaint
raised on appeal did not comport with the complaint raised in the trial court. Citing
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) and TEX. R. EVID.
103(a)(1). Thus, the Court ruled, Henderson’s issue leveled at the admission of the
gloves and pill bottle on the basis of a lack of probable cause was waived.
With regard to Henderson’s complaint on the admission of the burglary tools
found in the Acura, the Court of Appeals ruled that under the totality of
circumstances there was a fair probability at the time of the search that evidence
would be found in the car, and thus probable cause to search existed. (Slip op. at
6). To support that conclusion, the Court noted that the car was mobile, Dallas
officers had been tracking it in connection with burglaries in Dallas, the car had
been at The Drug Store when it was burglarized, and police had DVD recordings
of the burglary. (Slip op. at 7). Moreover, when officers had entered Henderson’s
motel room they found a hat, shoes and mask like those shown on the drugstore’s
DVD, and the car had stopped at a convenience store in Throckmorton where
security cameras caught Henderson’s image on November 4. Thus, the Court
reasoned, the totality of circumstances allowed for a conclusion that there was a
fair probability that contraband or evidence would be found in an automobile with
which Henderson had been connected so probable cause existed to search that car.
(Slip op. at 7).
ARGUMENT
As both grounds for review involve the search of a car with which
Henderson was connected, both grounds are here argued under one heading.
Standard of Review
A trial court’s decision on a motion to suppress evidence is reviewed under a
bifurcated standard of review, deferring to the trial court’s determination of
historical facts that depend on credibility, but reviewing de novo the trial court’s
application of the law. Burke v. State, 27 S.W.3d 651, 654 (Tex. App. – Waco
2000, pet. ref’d). The appellate court affords almost total deference to a trial
court’s determination of the historical facts supported by the record, especially
when the trial court’s fact findings are based on an evaluation of credibility and
demeanor. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A court also affords
such deference to a trial court’s ruling on application-of-law-to-fact questions, also
known as mixed questions of law and fact, if the resolution of those questions turns
on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. The
appellate court, though, reviews de novo those questions not turning on credibility
and demeanor. Id.
Here, the record contains no findings of fact. When there is no request for
the trial court to enter findings of fact, an appellate court assumes that the trial
court made implicit findings that support as ruling, so long as those implied
findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.
Crim. App. 2000). The trial court’s evidentiary ruling “will be upheld on appeal if
it is correct on any theory of law that finds support in the record.” Gonzales v.
State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006); see Romero v. State, 800
S.W.2d 539, 543 (Tex. Crim. App. 1990).
Analysis
In its review, an appellate court generally considers only the evidence
adduced at the suppression hearing since the ruling under review was based on the
suppression hearing evidence rather than the full body of evidence introduced at
trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However,
when the legality of the seizure is re-litigated at trial, consideration of relevant trial
testimony is appropriate in a review. Id. As noted in Rachal, an issue is re-
litigated when one of the parties (in that case, the state) reintroduces suppression
issues and the other party (in Rachal, the defense) participates in the re-litigation
of the issue. Id.2 Here, in effect, the state participated willingly in the re-litigation
of an issue previously decided by the trial court, and the Court of Appeals,
according to Rachal, was obligated to consider the additional evidence. Thus, the
Court of Appeals erred when it concluded that Henderson’s second re-litigated
objection had been waived.
With regard to the broader issue of probable cause to search the car, the
Court of Appeals correctly notes that the car had been tracked to and from areas in
Haskell County where the burglary had occurred, four days earlier. (Slip op. at 7).
However, apart from the fact that the car had been so tracked, the state offered no
evidence that the police had probable cause to believe Henderson’s car contained
contraband at the time of the warrantless search of the car four days after the
burglary. In other words, the Court of Appeals did not address the staleness issue
in its opinion. Additionally, there was no testimony that Henderson was known as
a drug dealer or even a user, or that he was known to keep illegal narcotics on his
person or in his automobile. That he might have driven the car to and from a
2
The state did object initially to Henderson’s motion to “un-admit” the evidence, but it also put
on additional testimony and re-argued its position, and the trial court only ruled on Henderson’s
new objection after hearing the testimony and argument of counsel.
burglary does not suggest that he was known or suspected of keeping burgled items
in the car for any particular length of time. After all, the mode of transportation
used by a criminal defendant should not, in itself, necessarily give rise to probable
cause in any particular circumstance. Otherwise, any vehicle could be searched at
any time anywhere merely because a car is most often the chosen means of
transportation employed by criminal suspects. Here, the tracked car was
tangentially important only because of the tracking device attached to it which
allowed the police to track and eventually locate a criminal suspect. The car’s
importance to the offense of Henderson’s alleged possession was only important
contextually in tying him to a burglary. Its existence in a parking lot, in and of
itself, did not suggest there was a “fair probability” of finding inculpatory evidence
in the car. Finally, while clothing discovered in the motel room provided support
that Henderson had been involved in a burglary, their discovery did not support a
belief that contraband taken in the burglary would necessarily still be in the car 4
days after the burglary. Thus, under the totality of circumstances, the best that can
be said with regard to the car and its relevance in support of the trial court’s
probable cause finding, is that criminals drive cars like everyone else. That hardly
rises to a finding that under a totality of circumstances there was probable cause to
believe evidence would be found in the car.
For those reasons the trial court erred when it denied Henderson’s objection
to the introduction of evidence seized in contravention of the Fourth Amendment.
The Court of Appeals compounded that error when it held that under the
circumstances the trial court did not abuse its discretion in allowing the
introduction of the offending evidence when the record did not support a probable
cause finding by that court.
PRAYER
WHEREFORE, Henderson prays that this Court reverse the judgment of
the appellate court and remand for new trial in accord with its findings herein.
COPELAND LAW FIRM
P.O. Box 399
Cedar Park, TX 78613
Mobil/Text: 512.897.8196
Fax: 512.215.8114
Email: tcopeland14@yahoo.com
By: /s/ Tim Copeland
Tim Copeland
State Bar No. 04801500
Attorney for Appellant
CERTIFICATE OF SERVICE AND OF
COMPLIANCE WITH RULE 9
This is to certify that on April 29, 2015, a true and correct copy of the above
and foregoing document was served on the State Prosecuting Attorney, P.O. Box
12405, Capitol Station, Austin, Texas 78711, and on Mike Fouts, District Attorney
of Haskell County, P.O. Box 193, Haskell, Texas 76550, in accordance with the
Texas Rules of Appellate Procedure, and that this Petition for Discretionary
Review is in compliance with Rule 9 of the Texas Rules of Appellate Procedure
and that portion which must be included under Rule 9.4(i)(1) contains 3422 words.
/s/ Tim Copeland
Tim Copeland
11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Ashley Jack Cody Henderson, * From the 39th District
Court of Haskell County,
Trial Court No. 6547.
Vs. No. 11-13-00060-CR * March 26, 2015
The State of Texas, * Memorandum Opinion by Wright, C.J.
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that there
is no error in the judgment below. Therefore, in accordance with this court’s
opinion, the judgment of the trial court is in all things affirmed.
Opinion filed March 26, 2015
In The
Eleventh Court of Appeals
No. 11-13-00060-CR
ASHLEY JACK CODY HENDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 39th District Court
Haskell County, Texas
Trial Court Cause No. 6547
M E M O RANDU M O PIN IO N
The jury convicted Ashley Jack Cody Henderson of the offense of
possession of a controlled substance, oxycodone, in an amount of four grams or
more but less than 200 grams. The second-degree felony offense was enhanced by
a prior felony conviction, and the trial court assessed Appellant’s punishment at
confinement for sixty years. On appeal, Appellant first claims that the trial court
erred when it overruled his objections to the introduction of evidence seized in the
search of a vehicle. In his second issue on appeal, Appellant claims that, because
the State failed to link him to the drugs, the evidence is insufficient to show that he
knowingly and intentionally possessed oxycodone. We affirm.
Undercover Dallas police officers suspected Appellant was responsible for
burglaries in the Dallas area. On October 19, 2011, they obtained a warrant to
attach a mobile tracking device to a black Acura that they had seen Appellant
drive. Appellant was named as the owner/possessor of the Acura. After the
officers placed the tracking device on the Acura, they began to monitor its location.
In the early morning hours of November 4, 2011, the tracking device showed that
the Acura had been driven to a location in Haskell. Later that evening, Dallas
officers telephoned Haskell authorities and determined that a burglary had
occurred at that location early that morning; a drugstore known as “The Drug
Store” had been burglarized.
The Drug Store is equipped with an “audio box” that allows the Haskell
County dispatcher to hear voices in the store. The audio box is activated when
employees leave the store. The store is also equipped with an alarm. The alarm
beeps at first until someone enters the alarm code, and if no one enters the code,
the alarm sounds.
Christina Stevens was working as a dispatcher for the Haskell County
Sheriff’s Department in the early morning hours of November 4. The audio box in
the drugstore had been activated, and from it, she heard the beeping of the alarm
and then the alarm sound. She also heard a voice ask something like, “Did you get
it all?” She heard another voice answer, “Yes.” She dispatched an officer to The
Drug Store.
Officer Daniel Kaszuba was dispatched to The Drug Store. He arrived
around 5:45 or 6:00 a.m. Officer Kaszuba noticed that the lock had been removed
from the front door and was lying in the parking lot. Officer Kaszuba called for
assistance and then secured the building.
Jeffrey Caparoon was a sergeant with the Haskell Police Department at the
time of the burglary. He was one of the officers who responded to assist at The
Drug Store that morning. He obtained and viewed DVDs from the continuously
recording eight video cameras that were located in various places inside the store.
Lonnie Meredith, the owner of The Drug Store, was notified of the burglary
around 6:00 a.m. on November 4. When Meredith arrived at the store, he noticed
that a trash can was missing. He also noticed that a cabinet where controlled
substances, such as Oxycontin, were kept had been opened and that most of the
contents had been removed. The Drug Store kept an inventory, and from that
inventory, Meredith always knew the amount of inventory “to the tablet.” Among
the missing inventory were 537 15-milligram tablets of oxycodone (a generic form
of Oxycontin) and 300 60-milligram tablets of Oxycontin.
When the Dallas officers telephoned Haskell authorities on the evening of
November 4, they also told them that, after the Acura had stopped at The Drug
Store, it stopped for twenty-two minutes on Marrs Road about eight miles outside
Haskell and for eight minutes at an Allsup’s convenience store in Throckmorton.
The record reflects that Haskell law enforcement officers went to the Marrs
Road location to which the Dallas police had directed them. There, the officers
found a white trash can like the one taken in the burglary, and they also found
papers related to The Drug Store. Because the tracking device showed a stop at
Allsup’s in Throckmorton, they also obtained surveillance videos from the
Allsup’s store.
By this time, Haskell officers had been told that Appellant was the person in
the vehicle that the Dallas officers had been tracking. Officers had also received a
photo ID from Appellant’s drivers license.
Winston Stephens, Chief Deputy with the Haskell County Sheriff’s
Department, testified that the DVDs from The Drug Store showed that one of the
men in the video wore a distinctive cap, tennis shoes, and “hoodlum mask.”
Haskell County law enforcement officers obtained arrest warrants for
Appellant and a man named Wheelis. Although arrested, Wheelis was later
eliminated as a suspect.
Law enforcement officers from Haskell County requested that Dallas
officers assist them in locating Appellant. After Dallas police located Appellant,
Sergeant Caparoon and Deputy Stephens traveled to Dallas to execute the warrant.
Dallas police officers found the black Acura at an extended stay motel; they
were the ones who executed the warrant. Upon entry into Appellant’s motel room,
Deputy Stephens noticed, among other things, a hat, shoes, and mask like those
depicted in the video from The Drug Store surveillance DVDs. These items were
later admitted into evidence at Appellant’s trial.
The black Acura was parked in the parking lot at the motel. Officers
searched the Acura and found pills, tools, and a pair of gloves. These items were
also admitted into evidence.
Prior to Appellant’s trial, Shawn Barber pleaded guilty to burglary of The
Drug Store and to possession of oxycodone taken from there. He received a
twelve-year plea bargain in exchange for his testimony against Appellant. At
Appellant’s trial, Barber testified that he participated in the burglary of The Drug
Store on November 4, 2011, along with Appellant; they came from Dallas. In his
testimony, Barber basically confirmed the physical evidence, the video evidence,
and the mobile tracking device evidence. Barber admitted that he and Appellant
possessed the drugs that they took from The Drug Store at least from the time they
took them until they returned to Dallas.
We will first address Appellant’s second issue in which he challenges the
sufficiency of the evidence to link him to the drugs found in the Acura. He argues
that the absence of any affirmative evidence that linked him to the drugs in the
Acura “mitigates against a finding that he possessed the contraband [made] the
basis of his charged offense. Appellant then concludes that, although a rational
jury could have determined that he burglarized The Drug Store, “it did not
necessarily follow that he exercised care, custody, control or management of
narcotics found in his automobile four days later or that he knew the very same
narcotics were in that automobile when it was searched.” “Accordingly,”
Appellant concludes, “the evidence was insufficient to support [Appellant’s]
conviction for possession of a controlled substance.”
To convict Appellant of unlawful possession of a controlled substance, the
State was required to prove that Appellant exercised control, management, or care
over the substance and that Appellant knew the thing possessed was contraband.
See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The
“affirmative links” rule is related to proof of control, management, care, and
knowledge in connection with the contraband that an accused is charged with
possessing. The rule protects an “innocent bystander from conviction based solely
upon his fortuitous proximity to someone else’s drugs.” Id. at 406.
In its brief, the State correctly notes that Appellant was not charged with
possession of the drugs found in the Acura. Appellant was charged in Haskell
County for possession of drugs as shown in the video taken during the burglary
and confirmed by Meredith’s testimony, the information recorded by the mobile
tracking device, the evidence found in Appellant’s motel room when the Dallas
officers arrested him, and Barber’s testimony. There has been no challenge to the
sufficiency of that evidence other than the argument that the failure to link
Appellant to the drugs found in the Acura “mitigates against a finding that he
possessed the contraband [made] the basis of his charged offense.” We overrule
Appellant’s second issue on appeal.
In his first issue on appeal, Appellant argues that “[t]he denial of [his]
objection to the introduction of evidence obtained from [the] search of his car was
error because there was no probable cause to believe the vehicle contained
evidence of criminal activity.” Specifically, Appellant complains of the admission
of State’s Exhibit No. 2 (mechanic’s gloves), State’s Exhibit No. 4 (a pill bottle),
and State’s Exhibit No. 33 (burglary tools). Dallas police obtained all of those
items when they searched the black Acura in Dallas.
When the State offered the gloves and the pill bottle into evidence,
Appellant objected that the State had not established a proper chain of custody.
The trial court overruled the objection and admitted the two exhibits. Later,
Appellant asked the trial court to “unadmit” the two exhibits. The basis for his
request to “unadmit” the two exhibits was that there had been no showing of
probable cause to search the Acura; that is also an argument that he makes on
appeal. However, as the State argues, this objection was not timely in the trial
court, and it cannot be made for the first time on appeal. See TEX. R. APP. P.
33.1(a)(1)(A); see also TEX. R. EVID. 103(a)(1); Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002). Further, the legal basis of a complaint raised on
appeal must comport with the complaint raised in the trial court. Wilson, 71
S.W.3d at 349. Appellant’s probable cause complaint leveled at the admission of
the gloves and pill bottle is overruled.
In the trial court, Appellant did object, on probable cause grounds, to the
admission of the burglary tools found in the Acura. When the totality of the
circumstances allows for a conclusion that there is a fair probability that
contraband or evidence will be found at a particular location, then probable cause
to search exists. Illinois v. Gates, 462 U.S. 213 (1983); Dixon v. State, 206 S.W.3d
613, 616 (Tex. Crim. App. 2006). There was no search warrant in this case.
Searches conducted without a warrant are per se unreasonable absent a few
specific well-delineated exceptions. One of those exceptions is the “automobile
exception.” Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008);
Barnes v. State, 424 S.W.3d 218, 224 (Tex. App.—Amarillo 2014, no pet.). Under
the automobile exception, officers “may conduct a warrantless search of a vehicle
if it is readily mobile and there is probable cause to believe that it contains
contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). The
court in Neal wrote that police “may lawfully search an automobile if they have
probable cause to believe that the vehicle contains evidence of a crime. Probable
cause to search exists when there is a ‘fair probability’ of finding inculpatory
evidence at the location being searched.” Neal, 256 S.W.3d at 282 (footnote
omitted).
There is no question but that the Acura was readily mobile; Dallas officers
had been tracking it for some time in connection with burglaries in Dallas.
Further, officers knew that the Acura was at The Drug Store around the time that
the store was burglarized, and they had the DVD recordings of the burglary. They
also knew that, after the burglary, the Acura had been driven to the location on
Marrs Road where officers found items connected to The Drug Store.
Additionally, when officers entered Appellant’s motel room, they noticed a hat,
shoes, and a mask that resembled the hat, shoes, and mask worn during the
burglary of The Drug Store as depicted in the surveillance DVDs from The Drug
Store. Dallas officers also knew that, not long after the burglary, the Acura
stopped at an Allsup’s convenience store in Throckmorton, the town through
which the officers had tracked the Acura as it was being driven to and from
Haskell on November 4. When a court determines whether probable cause to
search exists, it considers the totality of the circumstances. Fineron v. State, 201
S.W.3d 361, 367 (Tex. App.—El Paso 2006, no pet.). The combined information
known to all the officers at the time of the search is to be considered in a probable
cause determination. Id.
We hold that the totality of the circumstances that we have outlined above
allows for a conclusion that there was a fair probability that contraband or evidence
would be found in the Acura. For all of those reasons, we believe that the officers
had probable cause to search the Acura without a warrant. We overrule
Appellant’s first issue on appeal.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
March 26, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.