Tony Dewayne Crayton v. State

ACCEPTED
06-14-00208-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/13/2015 12:00:00 AM
DEBBIE AUTREY
CLERK

CAUSE NUMBER 06-14-00208-CR
IN THE
COURT OF APPEALS FILED IN
6th COURT OF APPEALS
SIXTH APPELLATE JUDICIAL DISTRICT OF TEXAS
TEXARKANA, TEXAS
AT TEXARKANA, TEXAS 7/13/2015 9:07:00 AM
DEBBIE AUTREY
Clerk

APPEAL FROM THE 8TH JUDICIAL DISTRICT OF HOPKINS COUNTY,
TEXAS

Trial Cause No. 1323670

TONY DEWAYNE CRAYTON
Appellant

V.

THE STATE OF TEXAS,
Appellee

BRIEF FOR APPELLANT

Martin Braddy
Attorney at Law
SBN 00796240
121 Oak Ave., Suite A
Sulphur Springs, Texas 75482
(903) 885-2040
(500) 885-2704 fax

1
 IDENTITY OF PARTIES

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list

of all parties to the trial court‘s judgment and the names and addresses of all trial

and appellate counsel:

APPELLANT:
Tony Dewayne Crayton
Appellate and Trial Counsel
Martin Braddy
121 Oak Avenue, Suite A
Sulphur Springs, TX 75482
(903) 885-2040
(903) 500-2704 fax

APPELLEE:
The State of Texas
Honorable Will Ramsay
District Attorney
8th Judicial District
110 Main Street
Sulphur Springs, TX 75482
(903) 885-0641
(903) 885-0640 fax

TRIAL COURT:
8th Judicial District Court
Hopkins County, Texas
Judge Eddie Northcutt
118 Church St.
Sulphur Springs, TX 75482
Phone: (903) 438-4022

2
 TABLE OF CONTENTS

Table of Contents 3

Index of Authorities 4-7

Statement of the Case 7

Issues Presented 7

Statement of Facts 7-13

Summary of Argument 13-14

Argument 14

I. Trial Court Improperly Considered a Competency Report 14

II. Did the Trial Court Err in Overruling the Motion to 34

Suppress Evidence

Conclusion and Prayer 41

Certificate of Service 42

Word Count Certificate 43

3
INDEX OF AUTHORITIES

Cases

Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007) 33

Best v. State, 118 S.W.3d 857, 862 (Tex.App.-Fort Worth 33
2003, no pet.)

Bullcoming v. New Mexico, ––– U.S. ––––, ––––, 131 S.Ct. 18
2705, 2715, 180 L.Ed.2d 610 (2011)

Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) 13

Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 20
L.Ed.2d 705 (1967)

Cobb v. State, 95 S.W.3d 664, 666 (Tex.App.–Houston [1st 13
Dist.] 2002, no pet.)
Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 16, 17, 18
L.Ed.2d 177 (2004)

Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006) 21

De La Paz v. State, 273 S.W.3d 671, 680 17
(Tex.Crim.App.2008)

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 21
1438, 89 L.Ed.2d 674 (1986)

Douds v. State, 434 S.W.3d 842, 861-62 (Tex. App.—Houston 35
[14th Dist.] 2014), petition for discretionary review granted
(Sept. 17, 2014)

33
Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005)
George v. State, 20 S.W.3d 130, 140 (Tex. App.—Houston 29
[14th Dist.] 2000, pet. ref'd)

4
Gilbert v. State, 493 S.W.2d 783, 783 (Tex. Crim. App. 1973) 38

Gillenwaters v. State, 205 S.W.3d 534, 537 13
(Tex.Crim.App.2006)

Hensarling v. State, 829 S.W.2d 168, 170-71 (Tex. Crim. App. 28, 29
1992)

Howard v. State, 617 S.W.2d 191, 193 (Tex.Crim.App.1979) 34
(op. on reh'g)
Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) 13, 14

Keen v. State, 626 S.W.2d 309, 313 (Tex. Crim. App. 1981 38
overruled on other grounds)

Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004) 33

Langham v. State, 305 S.W.3d 568, 576 (Tex.Crim.App.2010) 18

Lee v. State, 418 S.W.3d 892, 896 (Tex. App.—Houston [14th 17, 19
Dist.] 2013), petition for discretionary review refused (Mar.
12, 2014)
McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. 33
denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003)

McNairy v. State, 835 S.W.2d 101, 106–07 36
(Tex.Crim.App.1991)

Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 18, 19
2527, 174 L.Ed.2d 314 (2009)
Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 34
L.Ed.2d 343 (1979)

Ramirez v. State, 105 S.W.3d 730, 744 (Tex. App.—Austin 36
2003, no pet.)

5
Reynolds v. State, 506 S.W.2d 864, 864 (Tex. Crim. App. 38
1974)

Rickels v. State, 108 S.W.3d 900, 902 (Tex.Crim.App.2003) 13

Smith v. State, 297 S.W.3d 260, 277 (Tex. Crim. App. 2009) 20

State v. Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App. 34
1996)

State v. Stewart, 282 S.W.3d 729, 737 (Tex. App.—Austin 33
2009, no pet.)

Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005) 33

Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.2006) 17

Wood v. State, 299 S.W.3d 200, 208 (Tex. App.—Austin 17, 19
2009, pet. ref'd)

Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.2009) 33

United States v. Rubin, 474 F.2d 262, 268 (3d Cir.1973) 36

Statutes

Tex. Crim. Proc. Code Ann. § art. 18.04 (West) 38

Tex. Crim. Proc. Code Ann. § art. 38.23 (West) 34

Tex. Crim. Proc. Code Ann. § art. 46B (West) 16, 19, 23

Tex. R. App. Proc. 33.1(a) 13

Tex. R. App. Proc. 44.2 20

Tex. R. Evid. Rule 201 (b) 14, 15

6
Tex. R. Evid. Rule 605 28

U.S. Const. amend. IV 33

STATEMENT OF THE CASE

Appellant was indicted in Cause Number 1323670 for Murder. Appellant

pled ―Not Guilty‖ and waived his right to a jury trial. The trial court found

Appellant guilty and set the punishment at fifty years in the Institutional Division

of the Texas Department of Criminal Justice and no fine. The trial court certified

Appellant‘s right to appeal and Appellant timely filed a Notice of Appeal.

ISSUES PRESENTED

Did the trial court err in considering the competency evaluation report filed

by Dr. Michael Pittman?

Did the trial court err in denying Appellant‘s Motion to Suppress: Seizure

Without Warrant?

Did the trial court err in denying Appellant‘s Motion to Suppress based on

an improperly executed search warrant?

STATEMENT OF FACTS

Appellant and Tyler Crayton were married in August 2008 after dating the

previous two years. (R.R. Vol. 7 pg. 44-5). Their son, Preston, was born in July

7
2007. (R.R. Vol. 7 pg. 63). They lived in Sulphur Springs together with Preston,

her mother Mildred Townsend and her brother Jay Townsend. (R.R. Vol. 7 pg. 42-

3). Their marriage was strained by Appellant‘s infidelities and his leaving the

household for periods of time. (R.R. Vol. 7 pg. 69). However by all accounts,

Appellant had never been violent towards Ms. Crayton. (R.R. Vol. 6 pg. 166-9,

Vol. 7 pg. 68). Appellant was a passive individual that always walked away from

conflict within the family. (R.R. Vol. 6 pg. 166-9, Vol. 7 pg. 68).

On October 22, 2013, Ms. Crayton was killed in her home in Sulphur

Springs. (R.R. Vol. 7 pg. 69). She died of ―sharp-force injuries of the neck‖

involving multiple stab wounds. (R.R. Vol. 7 pg. 29, SX-113). The cause of death

was listed as ―homicide.‖ (R.R. Vol. 7 pg. 29, SX-113).

The night before Ms. Crayton‘s death, Appellant had attended counseling

with his wife‘s mother, to whom he stated ―he had finally realized God loved him.‖

(R.R. Vol. 7 pg. 77). That night, Appellant was at the kitchen table reading his

Bible as Ms. Townsend went to bed. (R.R. Vol. 7 pg. 77). His belongs were

packed in bags and sitting in the hall of the residence that night. (R.R. Vol. 7 pg.

75-6). Ms. Townsend was aware that her daughter was planning on talking to

Appellant the next day about their relationship. (R.R. Vol. 7 pg. 78). Appellant

slept in the recliner in the living room of the residence that night. (SX-71).

8
 Appellant often slept in that recliner prior to Ms. Crayton‘s death due to his

desire to protect his family from his ex-girlfriend, Sherry Lewis. (R.R. Vol. 7 pg.

76-7). Appellant believed that Sherry Lewis was a witch and had power over him

and he feared that she would do harm to his family at their house. (R.R. Vol. 7 pg.

84).

Ms. Townsend did not see Appellant at the residence the next morning prior

to her leaving for work. (R.R. Vol. 7 pg. 77). This was not unusual because

Appellant would sometimes take walks early in the morning. (R.R. Vol. 7 pg. 78-

9). She informed law enforcement during her interview that she did not see

Appellant that morning prior to leaving the residence for work. (R.R. Vol. 7 pg.

88-9). Jay Townsend also informed law enforcement that he had not seen

Appellant that morning either, but heard water running and assumed he was there,

even though he said it could have been a toilet that often runs. (R.R. Vol. 6 pg.

207).

When Ms. Townsend was informed that her daughter had been killed, her

first thought was that Sherry Lewis did it and never considered Appellant to be a

suspect. (R.R. Vol. 7 pg. 82). Ms. Townsend considered Sherry Lewis to be

capable of murder and believed that she had a motive to kill her daughter and was

likely to have been the person who killed her daughter. (R.R. Vol. 7 pg. 82, 89).

9
Further, she did not believe Appellant to be capable of murder nor did she believe

Appellant committed the murder. (R.R. Vol. 7 pg. 87-8).

Ms. Townsend told law enforcement about a prior incident involving Sherry

Lewis coming to her house demanding to talk to Appellant and causing such a

disturbance that they called the police to make her leave. (R.R. Vol. 7 pg. 90-1).

She also described Sherry Lewis coming to her house on other occasions that did

not necessitate police intervention. (R.R. Vol. 7 pg. 91).

On October 22, officers were dispatched to the residence to respond to an

open 911 call with no voices on it. (R.R. Vol. 6 pg. 54-5, 82). Ms. Crayton was

found dead in the residence. (R.R. Vol. 6 pg. 61). A little more than an hour after

arriving at the residence, officers were dispatched to the League Street overpass at

Interstate 30 in Sulphur Springs. (R.R. Vol. 6 pg. 68). Officers found Appellant

lying in the Westbound lane of Interstate 30. (R.R. Vol. 6 pg. 68-78). Appellant

had sustained significant injuries and was unable to respond to questions. (R.R.

Vol. 2 pg. 43-5, Vol. 6 pg. 79-80).

Appellant had no identification on his person and was not positively

identified at the scene. (R.R. Vol. 2 pg. 49, 66, 85-6). Officer Amanda

Weatherford testified that she believed she heard some officers begin calling him

―Tony,‖ but could not remember which officers. (R.R. Vol. 2 pg. 55). Officer

Antwone Young believed that officer‘s that had been at the murder scene knew

10
him to be the suspect although he could not say which officers or why they

believed that. (R.R. Vol. 2 pg. 79-82). The only officers that had been to the

murder scene on location at the highway were Officer Amanda Weatherford and

Officer Jay Sanders. Officer Sanders testified that he had ―just kind of a gut

feeling‖ that he was the suspect. (R.R. Vol. 2 pg. 92).

While Appellant laid on the highway being treated by emergency medical

personnel, officers seized as evidence in the murder investigation what they

believed to be his shoes, glasses and baseball hat. (R.R. Vol. 2 pg. 47-50). The

shoes were seized as evidence at 2:26 pm on October 22, 2013. (R.R. Vol. 2 pg.

49). Shortly after seizing the shoes, Officer Weatherford took Appellant‘s left

hand and, without his consent, opened it up exposing the inside webbing between

the thumb and index finger. (R.R. Vol. 2 pg. 51). Officers then took a picture of a

cut on that area as it was held open by an individual wearing latex gloves. (SX-

15). The seized evidence was bagged, logged as evidence, taken to the Sulphur

Springs Police Department and placed into the evidence locker. (R.R. Vol. 2 pg.

56). Appellant was later transported to the hospital by ambulance. (R.R. Vol. 2 pg.

66-7). When officers arrived at the police department, they were able for the first

time to positively identify Appellant as the individual they encountered on the

highway. (R.R. Vol. 2 pg. 59-60).

11
 Officer Young followed Appellant to the hospital to collect his clothing, and

any other items, as evidence. (R.R. Vol. 2 pg. 65). At the hospital, medical

personnel asked him if he wanted to take possession of Appellant‘s clothing and he

answered affirmatively. (R.R. Vol. 2 pg. 67-9). At 3:15 pm on October 22, 2013,

Officer Young seized them, sealed them in an evidence bag and took them to the

Sulphur Springs Police Department where he released them to Detective Fox.

(R.R. Vol. 2 pg. 71-2, 77-8).

On October 22, 2013, Detective Fox presented an Affidavit for Search

Warrant to District Judge Eddie Northcutt (SX-56). Judge Northcutt issued a

Search Warrant pursuant to that affidavit at 4:50 pm on that date. (SX-56).

Detective Fox executed the Search Warrant on Appellant‘s clothing, shoes, hat and

glasses at the Sulphur Springs Police Department where they were located after

having been seized, sealed, bagged and logged as evidence by other officers. (R.R.

Vol. 2 pg. 169-171). Detective Fox executed the Search Warrant on Appellant‘s

body to collect blood samples, fingernail clippings, oral swabs and blood swabs

from his fingernail while Appellant was in Mother Frances Hospital in Tyler,

Texas located in Smith County. (R.R. Vol. 6 pg. 116-18).

On October 29, 2013, following his release from the hospital, Appellant was

transported to the Hopkins County Jail. (R.R. Vol. 6 pg. 124). There, he was

interrogated by Detective Fox and Texas Ranger John Vance. (R.R. Vol. 6 pg.

12
124). The interrogation produced a muttering, rambling, disjointed statement that

the Court Reporter could not transcribe. (R.R. Vol. 6 pg. 127, SX-71). Detective

Fox testified that Appellant confessed to the murder of his wife during that

interrogation. (R.R. Vol. 6 pg. 140).

In announcing its verdict, after careful and lengthy consideration, the trial

court informed the parties that it took ―judicial notice of the file‖ on its on motion

during deliberations in order to review a report from Dr. Pittman following a

competency evaluation. (R.R. Vol. 8 pg. 18). Particularly, the trial court

referenced the portion of the report indicating that Appellant was faking his mental

health issues. (R.R. Vol. 8 pg. 18-9). The trial court found Appellant guilty as

charged in the indictment. (R.R. Vol. 8 pg. 22).

In announcing its verdict regarding sentencing, the trial court again

referenced Dr. Pittman‘s report in finding that Appellant had been faking his

mental health issues and, therefore, had no significance as mitigation in this case.

(R.R. Vol. 8 pg. 107-8). The trial court sentenced Appellant to fifty years and no

fine. (RR Vol. 8 pg. 109). Appellant filed notice of Appeal. (C.R. pg. 102).

SUMMARY OF ARGUMENT

The trial court improperly took judicial notice of the report issued by Dr.

Pittman. During its deliberations, the trial court took judicial notice of the file and

reviewed the report contained within it. This resulted in a violation of Appellant

13
6th Amendment constitutional right to confront and cross-examine the witnesses

against him under Crawford, of Rule 201 of the Texas Rules of Evidence and of

Article 46B.007 of the Texas Code of Criminal Procedure.

The trial court improperly denied Appellant‘s Motion to Suppress: Seizure

Without Warrant. Law enforcement seized several items of evidence without first

obtaining a warrant in violation of Appellant‘s Fourth Amendment Rights and the

Texas Code of Criminal Procedure. The State failed to prove a ―specifically

defined and well-established‖ exception to the warrant requirement.

The trial court improperly denied Appellant‘s Motion to Suppress. The

officers executing the search warrant did not have jurisdiction to conduct the

search and seizure of the evidence. The State failed to prove that the execution of

the search warrant was assisted by an officer with proper jurisdiction.

ARGUMENT

I. TRIAL COURT IMPROPERLY CONSIDERED A COMPETENCY

REPORT

The trial court improperly took judicial notice of the report issued by Dr.

Pittman. During its deliberations, the trial court took judicial notice of the file and

reviewed the report contained within it. This resulted in a violation of Appellant

6th Amendment constitutional right to confront and cross-examine the witnesses

14
against him under Crawford. This also violated Rule 201 of the Texas Rules of

Evidence providing for the proper procedure of judicial notice. This also violated

Article 46B.007 of the Texas Code of Criminal Procedure prohibiting the use of

the report and testimony regarding the evaluation of Appellant‘s competency to

stand trial.

A. Preservation of Error

―Ordinarily, to preserve an issue for appellate review, an appellant must

have first raised the issue in the trial court.‖ Burt v. State, 396 S.W.3d 574, 577

(Tex. Crim. App. 2013) citing Tex. Rule App. Proc. 33.1(a); Gillenwaters v. State,

205 S.W.3d 534, 537 (Tex.Crim.App.2006).

However the Court of Criminal Appeal in Burt v. State noted, ―[t]he

requirement that an objection be raised in the trial court assumes that the appellant

had the opportunity to raise it there.‖ Burt v. State, 396 S.W.3d at 577, citing Issa

v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992) (permitting appellant to raise

his objection for the first time in a motion for new trial since ―appellant had no

opportunity to object to the trial court's action until after that action was taken.‖).

The Burt Court held that ―if an appellant never had the opportunity to object, then

he has not forfeited error.‖ Burt v. State, 396 S.W.3d at 577-78, citing Rickels v.

State, 108 S.W.3d 900, 902 (Tex.Crim.App.2003); Cobb v. State, 95 S.W.3d 664,

666 (Tex.App.–Houston [1st Dist.] 2002, no pet.).

15
 The Court of Criminal Appeals in Issa v. State held that where an ―appellant

had no opportunity to object to the trial court's action until after that action was

taken … that raising his objection in his timely filed motion for new trial did

preserve the error for appellate review.‖ Issa v. State, 826 S.W.2d 159, 161 (Tex.

Crim. App. 1992).

Here, the trial court took judicial notice of the file and reviewed the report of

Dr. Pittman outside the presence of the parties during its private deliberations.

(R.R. Vol. 8 pg. 18). Obviously, Appellant had no opportunity to object to the trial

court‘s actions and properly raised his objection in his timely filed motion for new

trial. (C.R. pg. 111-16). Therefore, the error is preserved for appellate review.

B. Texas Rules of Evidence 201

The trial court took judicial notice of Dr. Pittman‘s report in violation of

Rule 201 of the Texas Rules of Evidence.

Rule 201 provides for the admission of ―Adjudicative Facts‖ under the rules

set-out within it. Subsection (b) states that the kinds of facts that may be judicially

noticed are facts that are ―not subject to reasonable dispute because it:

(1) is generally known within the trial court's territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.‖

Tex. R. Evid. Rule 201 (b).

16
 Rule 201 allows for a trial court to, on its own, take judicial notice of those

facts, provided however, that ―a party is entitled to be heard on the propriety of

taking judicial notice and the nature of the fact to be noticed.‖ Tex. R. Evid. Rule

201 (c), (e).

The trial court took judicial notice of a report provided by Dr. Michael

Pittman regarding Appellant‘s competency to stand trial. The trial court violated

Rule 201 by not provided the opportunity to be heard. Also, the trial court

judicially noticed facts that are not ―Adjudicative Facts.‖ Those facts asserted in

the report could and would have been highly challenged at trial by Appellant if

provided the opportunity. Courts have allowed a trial court to take judicial

notice of a competency report in making a pretrial determination of ―competency‖

to stand trial. However, the trial court in this case used it to assist in its finding of

guilt, voluntariness of Appellant‘s statement, whether Appellant gave a false

confession and determining the significance of Appellant‘s mental health evidence

offered in mitigation of punishment. The trial court did not take judicial notice to

reiterate Appellant‘s legal competency to stand trial. Instead, the trial court

focused on the expert‘s opinion regarding Appellant‘s mental illnesses, or lack

thereof. Further the trial court focused on the opinion that Appellant was

pretending to have mental health issues and lack of understanding to avoid

17
responsibility for the offense. These are not the type of ―Adjudicative Facts‖

intended for judicial notice under Rule 201.

Therefore, the trial court erred in taking judicial notice of the ―Psychiatric

Evaluation‖ contained in the court‘s file.

C. Code of Criminal Procedure Article 46B.007

Article 46B.007 of the Texas Code of Criminal Procedure state, ―[a]

statement made by a defendant during an examination or trial on the defendant's

incompetency, the testimony of an expert based on that statement, and evidence

obtained as a result of that statement may not be admitted in evidence against the

defendant in any criminal proceeding, other than at:

(1) a trial on the defendant's incompetency; or

(2) any proceeding at which the defendant first introduces into evidence a

statement, testimony, or evidence described by this article.‖

Tex. Crim. Proc. Code Ann. § art. 46B.007 (West). Appellant offered no

statement, testimony or evidence described in that article at trial. Therefore, the

admission of Dr. Pittman‘s report was in violation of this article. Consequently,

the trial court erred in considering it at trial.

D. Crawford Violation

The consideration of Dr. Pittman‘s report violated Appellant‘s right to

confrontation under Crawford. ―In Crawford v. Washington, the Supreme Court

18
held that the Sixth Amendment confrontation right applies not only to in-court

testimony, but also to out-of-court statements that are testimonial in nature.

Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004). The Confrontation Clause forbids the admission of testimonial hearsay

unless the declarant is unavailable to testify and the defendant had a prior

opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. 1354.

1. Standard of Review

Whether a particular out-of-court statement is testimonial is a question of

law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). Wood v.

State, 299 S.W.3d 200, 207 (Tex. App.—Austin 2009, pet. ref'd). Although

evidentiary rulings are usually reviewed for an abuse of discretion, a statement's

testimonial nature is a question of law that we review de novo. Wall v. State, 184

S.W.3d 730, 742 (Tex.Crim.App.2006). Lee v. State, 418 S.W.3d 892, 895-96

(Tex. App.—Houston [14th Dist.] 2013), petition for discretionary review refused

(Mar. 12, 2014).

2. Testimonial

Dr. Pittman‘s report, prepared at the request of the trial court to determine

Appellant‘s competency to stand trial, was testimonial in nature.

The threshold inquiry is whether the hearsay at issue is ―testimonial.

―Various formulations of th[e] core class of ‗testimonial‘ statements exist....‖

19
Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004). The Court of Criminal Appeals has summarized three kinds of testimonial

statements: (1) ―ex parte in-court testimony or its functional equivalent,‖ i.e.,

―pretrial statements that declarants would expect to be used prosecutorially;‖ (2)

―extrajudicial statements contained in formalized testimonial materials,‖ such as

affidavits, depositions, or prior testimony; and (3) ―statements that were made

under circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.‖ Langham v. State,

305 S.W.3d 568, 576 (Tex.Crim.App.2010).

The United States Supreme Court has twice held that expert reports of

scientific testing results are testimonial. Bullcoming v. New Mexico, ––– U.S. –––

–, ––––, 131 S.Ct. 2705, 2715, 180 L.Ed.2d 610 (2011); Melendez–Diaz v.

Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

Justice Scalia, writing for the majority in Melendez-Diaz, found that the

expert‘s report was prepared ―under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a

later trial,‘‖ In rejecting the respondent‘s and the dissent‘s argument, he wrote

―…there is little reason to believe that confrontation will be useless in testing

analysts‘ honesty, proficiency, and methodology—the features that are commonly

the focus in the cross-examination of experts. Therefore, reports setting forth

20
expert opinions made in preparation for testimony at trial are squarely within the

definition of ―testimonial‖ as contemplated by Crawford.‖ Melendez–Diaz v.

Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

Some Texas cases have found that expert reports are not testimonial.

―However, these opinions were written before the Supreme Court announced its

opinion in Melendez–Diaz v. Massachusetts.‖ Wood v. State, 299 S.W.3d 200,

208 (Tex. App.—Austin 2009, pet. ref'd), citing Melendez–Diaz v. Massachusetts,

557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The holding of the United

States Supreme Court in Melendez–Diaz and Bullcoming overrules those Texas

cases. ―[T]he Supreme Court explicitly rejected the analysis applied in some

Texas cases, noting that such reports are testimonial notwithstanding that they are

the ‗result of neutral, scientific testing.‘‖ Lee v. State, 418 S.W.3d 892, 896 (Tex.

App.—Houston [14th Dist.] 2013), petition for discretionary review refused (Mar.

12, 2014).

E. Analysis

The Texas statutory scheme to determine a defendant‘s competency to stand

trial clearly contemplates the expert conducting the evaluation to provide in-court

testimony regarding his report at a trial/hearing regarding a defendant‘s

competency. Tex. Crim. Proc. Code Ann. § art. 46B (West). Therefore, any report

prepared by that expert regarding that evaluation would be prepared ―under

21
circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.‖

We can safely assume that Dr. Pittman, ordered to conduct the competency

evaluation according to the statute, was familiar with the statutory scheme that

required it. Consequently, Dr. Pittman prepared his ―Psychiatric Evaluation‖

report with an understanding that it would be available for later use in court.

Therefore, the trial court considered ―testimonial‖ hearsay by taking judicial

notice of Dr. Pittman‘s report in violation of Appellant‘s Sixth Amendment right to

confrontation as required by Crawford.

F. Harm

A violation of Appellant‘s right of confrontation as outlined in Crawford is

constitutional error.

Texas Rule of Appellate Procedure 44.2 states, ―[i]f the appellate record in a

criminal case reveals constitutional error that is subject to harmless error review,

the court of appeals must reverse a judgment of conviction or punishment unless

the court determines beyond a reasonable doubt that the error did not contribute to

the conviction or punishment.‖ Tex. R. App. Proc. 44.2.

―Having found constitutional error, we need not reverse the trial court's

judgment if we conclude beyond a reasonable doubt that the error did not

contribute to appellant's punishment. Smith v. State, 297 S.W.3d 260, 277 (Tex.

22
Crim. App. 2009), citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967). Therefore, the Court should reverse this case unless it

believes beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.

The United States Supreme Court has held that harmless error analysis for

Confrontation Clause violations assumes that ―the damaging potential of the cross-

examination [would have been] fully realized.‖ Delaware v. Van Arsdall, 475 U.S.

673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). However the Texas Court

of Criminal Appeals has adopted a separate standard as to Crawford violations.

The Court of Criminal Appeals held, ―[t]hus, courts reviewing whether the

error in admitting out-of-court statements in violation of Crawford is harmless

beyond a reasonable doubt should consider:

(1) The importance of the hearsay statements to the State's case;

(2) Whether the hearsay evidence was cumulative of other evidence;

(3) The presence or absence of evidence corroborating or contradicting the

hearsay testimony on material points; and

(4) The overall strength of the prosecution's case

Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006).

Appellant believes that this Court should apply the Van Arsdall assumption

in this case. However, the error is ultimately harmful under either standard.

23
 The error here is the admission of an expert‘s report without the benefit of

cross-examination. In announcing its verdict at guilt/innocence, the trial court

stated, ―… I come to the same conclusions in that actually that Dr. Pittman does,

and that is that some descriptions of and self-reporting of mental health issues may

be exaggerated in this particular case.‖ (R.R. Vol. 8 pg. 18-19). At punishment

the trial court stated, ―I came to my own conclusions, which were in great support

supported by Dr. Michael Pittman's consideration of his exhibitions, his perceived

symptoms, and believe those not to be - - any resulting mental illness or mental

health issues that Mr. Crayton had to be of any significant mitigation in this

particular case.‖ (R.R. Vol. 9 pg. 107-108).

The trial court is referencing the ―Psychiatric Evaluation‖ created and filed

by Dr. Michael Pittman pursuant to a statutory competency evaluation. (C.R. pg.

61). In the ―Conclusions‖ portion of the report, Dr. Pittman writes, ―[t]hough he

seemed upset about his current situation, I doubted that Mr. Crayton had a current

mental illness; I believed that he was fabricating most of his symptoms.‖ (C.R. pg.

61). Further, under the ―Mental Status Evaluation‖ portion, Dr. Pittman writes,

―[a]lthough Mr. Crayton claimed some ignorance, despite his educational

attainment and previous good functioning, some ignorance of the various roles of

courtroom personnel, I disbelieved him.‖ (C.R. pg. 62). Essentially, Dr. Pittman‘s

opinion is that Appellant was lying in order to appear to have mental illness and

24
lack understanding of the judicial system. The logical conclusion from this is that

Appellant is willing to be deceitful to avoid criminal responsibility and to appear

more sympathetic.

It should be noted that the since the State‘s evidence did not included any

psychological evidence, the defensive strategy at trial did not include rebutting any

psychological findings. The defense was not intending on having to challenge Dr.

Pittman‘s testimony and did not request an expert be appointed to do so. The

defense was well aware of Art. 46B.007 and its prohibition of the use of Dr.

Pittman‘s testimony at trial. Tex. Crim. Proc. Code Ann. § art. 46B.007 (West).

The trial court‘s judicial notice of the doctor‘s report flies in the face of this

prohibition and left the defense ―defenseless.‖ Had the defense known that the

trial court would violate Art. 46B.007, it would have refused to participate in the

evaluation and requested an expert be appointed to rebut Dr. Pittman‘s opinions.

1. The importance of the hearsay statements to the State's case

The importance of Dr. Pittman‘s opinions to the State‘s case was to portray

Appellant‘s statement as another attempt to falsely portray mental issues, while

trying to avoid responsibility for his actions and to appear more sympathetic. That

was exactly what it did. (R.R. Vol. 8 pg. 18-19, 21). The trial court dismissed the

testimony regarding Appellant‘s mental issues and found them to be

―exaggerated.‖ (R.R. Vol. 8 pg. 18-19). The trial court found that Appellant was

25
in ―complete possession of his mental faculties‖ and had anticipated and prepared

for the interview. (R.R. Vol. 8 pg. 18-19). This was important to the trial court‘s

determination regarding Appellant‘s credibility in the statement and as to

consideration of lesser included offenses.

Furthermore, it damaged Appellant‘s ability at punishment to develop this

mitigation, which significantly strengthened the State‘s argument that this was a

particularly brutal case without mitigation. The trial court referenced Dr. Pittman‘s

opinion in finding that Appellant‘s mental health symptoms were not genuine and,

therefore, his mental health issues to not be of ―significant mitigation.‖ (R.R. Vol.

9 pg. 107-108).

2. Was the hearsay evidence cumulative of other evidence

Dr. Pittman‘s report is the only evidence supporting the trial court‘s finding

that Appellant was ―exaggerating‖ his mental health issues and that his manifested

mental health symptoms were not real and, therefore, not mitigating. (R.R. Vol. 8

pg. 18-19, Vol. 9 pg. 107-108). No expert or lay witness testimony was offered at

trial suggesting that Appellant was faking his mental illness symptoms.

3. The presence or absence of evidence corroborating or contradicting

the hearsay testimony on material points

Appellant developed, through Mildred Townsend, that Appellant suffered

from a very difficult childhood and was attending counseling and seeking spiritual

26
help in dealing with its effects. She also testified that he seemed genuine in this

pursuit. (R.R. Vol. 7 pg. 74). Appellant further developed this evidence through

his sister, Yalanda Crayton, including previous mental health treatment and a

suicide attempt. (R.R. Vol. 9 pg. 52-58). This was further developed by the

observable manifestations on the video statement of Appellant admitted by the

State. (SX-71). The State offered no evidence to rebut those assertions or to

corroborate the unexpected hearsay evidence of Dr. Pittman‘s report.

4. The overall strength of the prosecution's case

The State‘s case was based on DNA linking Appellant to the crime scene,

Appellant having jumped off of a bridge shortly after law enforcement found the

body and Appellant‘s confessions. The defensive strategy was to develop

―reasonable doubt‖ by attack the investigation as a ―rush to judgment‖ without

fully investigating all leads, to present an alternate perpetrator theory and

representing the confessions as unreliable due to mental health issues.

As to punishment, the defense was to present Appellant as a non-violent,

troubled man with a difficult upbringing suffering from mental health issues that

was pushed to the brink by a wife that desperately wanted more than he could give.

Further, that Appellant was acting under ―sudden passion‖ at the time. The State‘s

case on punishment was to portray the crime as particularly brutal and Appellant as

27
a calculating individual that made a choice to murder his wife to ―shut her up.‖

(R.R. Vol. 9 pg. 86).

This was not an easy case for the trial court to decide as the length of its

deliberations clearly showed, including having to move back the announcement of

that verdict due to its deliberations. (R.R. Vol. 8 pg. 4). The trial court

meticulously set out all the evidence and how it impacted its decisions at

guilt/innocence. (R.R. Vol. 8 pg. 8-22). The trial court provided a well thought-

out and precise road map for its decision and the facts that led to those decisions,

including Dr. Pittman‘s report. Thus, this Court does not have to guess as to the

relative strength or weakness of the State‘s case.

The trial court found that the physical evidence, coupled with his apparent

suicide attempt shortly thereafter, leads to the rational conclusion that Appellant

caused Ms. Crayton‘s death. (R.R. Vol. 8 pg. 11-12). Regarding Appellant‘s

culpable mental state, the trial court considered a lesser charge of Manslaughter

and whether the evidence showed merely an Aggravated Assault with a deadly

weapon. (R.R. Vol. 8 pg. 15-16). The trial court does not easily dismiss these

considerations. Appellant‘s interview filled in the gaps and allows for the

dismissal of the defensive strategies of ―rush to judgement,‖ faulty investigation,

and alternate perpetrator. If the trial court believed that Appellant‘s mental illness

symptoms manifested on the video were legitimate, the State‘s case becomes weak

28
in this regard. If the trial court believed, as Dr. Pittman did, that Appellant was

acting to avoid responsibility and garner sympathy, then the State‘s case becomes

strong.

The trial court notes that Appellant‘s statement ―in this particular case is

helpful.‖ (R.R. Vol. 8 pg. 16). The trial court mentions the ―unusual behaviors‖

exhibited on the video, discusses Dr. Pittman‘s opinions and his own claimed

―experienced as a mental health professional.‖ (R.R. Vol. 8 pg. 18-19). Although

the trial court describe one example of inconsistency he observed on the video, he

points to no testimony supporting his conclusion other than Dr. Pittman‘s report.

(R.R. Vol. 8 pg. 19-20).

As to the strength of the State‘s case at punishment, the finding that

Appellant was a calculating deceitful murderer that does not suffer from mental

illness was essential to disprove the defense of sudden passion and discount the

mitigation evidence presented by Appellant.

While on the other hand, the Appellant‘s case at punishment was seemingly

strong. The State presented no evidence of a violent past, except for one incident

that resulted in no injuries. The victim‘s mother testified that she loves and

forgives Appellant. (R.R. Vol. 9 pg. 13-14). Further, Appellant was able to

present himself as a non-violent man that loved his son. Appellant was presented

as having a trouble up-bringing filled with violence, but was at the time of the

29
crime truly trying to deal with his issues. The video showed, in dramatic fashion,

the moment when Appellant describes the sudden passion that overcame him and

that resulted in his terrible actions. However, Appellant did not anticipate the trial

court‘s consideration of the competency report that could not by statute be used at

trial supporting the trial court‘s belief that Appellant was faking his symptoms of

mental illness.

The report‘s bearing on the strength and weaknesses of State‘s case is

obvious from its reference by the trial court at both guilt/innocence and

punishment. To believe that Dr. Pittman‘s report had ―no impact‖ on the decision

would be nonsensical. This Court would have to believe beyond a reasonable

doubt that, for no reason at all, the trial court took judicial notice of the file on its

own motion, obtained the report, read it and twice referenced it during its

explanation of how it reached its decision.

G. Motion for New Trial Evidence

The State may point to the factual assertions made by the trial court at the

hearing on the Motion for New Trial as proving that the error did not contribute to

the outcome beyond a reasonable doubt. This Court should not consider that as

evidence in determining harm.

1. Texas Rule of Evidence 605

30
 Rule 605 states, ―[t]he judge presiding at the trial may not testify in that trial

as a witness. No objection need be made in order to preserve the point.‖ Tex. R.

Evid. Rule 605. The Court of Criminal Appeals considered a trial court presenting

facts at a hearing in Hensarling v. State. There the trial court judge testified at a

hearing regarding a defendant‘s competency to stand trial presided over by a

different judge. Hensarling v. State, 829 S.W.2d 168, 170-71 (Tex. Crim. App.

1992). The Court found that Texas Rule of Evidence 605 would apply to the

hearing, but did not in that case because a different judge presided over the

hearing. Hensarling v. State, 829 S.W.2d at 171. However, the Court of Criminal

Appeals provided clarification regarding Rule 605, its application and purpose.

The Court held, ―[t]he phrase ‗the judge presiding at the trial may not testify

in that trial‘ means that the judge who is presiding over a proceeding may not ‗step

down from the bench‘ and become a witness in the very same proceeding over

which he is currently presiding.‖ Hensarling v. State, 829 S.W.2d at 170.

The Court goes on to explain the purpose behind the rule. ―The judge is a

neutral arbiter in the courtroom, and the rule seeks to preserve his posture of

impartiality before the parties and particularly in the eyes of the jury.‖ Hensarling

v. State, 829 S.W.2d at 171. As the Court points out, ―[a] judge who testifies, for

example, might be required to evaluate his own testimony…‖ Hensarling v. State,

829 S.W.2d at 171.

31
 As the Houston 14th Appellate Court properly pointed out, ―[w]e recognize

that when a judge's character, impartiality, or professionalism has been impugned,

it may be difficult to resist the urge to ‗set the record straight.‘‖ George v. State,

20 S.W.3d 130, 140 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). It has

always been permissible for a trial court to ―clarify‖ facts for an appellate record as

to those events that occur in open court for all to see, except the appellate court,

and are not reasonably in dispute. However, where the sole issue of the hearing is

regarding the actions of the trial court itself, to allow the trial court to make factual

assertions regarding disputed facts goes to the heart of the purpose of Rule 605.

A trial court loses its ―posture of impartiality before the parties‖ and would

be required to evaluate its on testimony. Appellant would be required to convince

the trial court judge to find that its own factual assertions are incorrect or lack

credibility. Was Appellant to cross-examine the trial court judge in an effort to

challenge its own factual assertions?

2. Analysis

Here, the trial court judge clearly believed, at trial, that it could properly take

judicial notice of the file and with it, Dr. Pittman‘s report. It did so and read it

specifically with an eye towards its consideration of guilt, the culpable mental state

of Appellant, the voluntariness of Appellant‘s statement, and regarding the

32
mitigation evidence offered at punishment. The trial court announced its decisions

and how the report played into its considerations.

Appellant filed its Motion for New Trial pointing out the trial court‘s error

and that it constituted constitutional error. Neither party offered evidence at the

hearing. The trial court, without request from either side, began testifying

regarding its deliberations. (R.R. Hearing on Motion for New Trial pg. 5-7). The

trial court‘s testimony included that he ―…did not consider anything in Dr.

Pittman‘s report to reach my conclusions…‖ (R.R. Hearing on Motion for New

Trial pg. 6). The trial court even adds ―…I‘ll want that information before the

Court (referring to this Court) so they don‘t have to wonder whether or not I did

consider.‖ (R.R. Hearing on Motion for New Trial pg. 6). The trial court then asks

whether either side had ―[a]anything in response…‖ to that testimony. (R.R.

Hearing on Motion for New Trial pg. 7).

Appellant‘s trial counsel, taken aback by the trial court‘s attempt to cure the

error, objects and requests another judge be appointed to hear the motion. (R.R.

Hearing on Motion for New Trial pg. 7, 8). The trial court considered neither the

objection nor the request for another judge to hear the motion.

This issue is compounded when the trial court‘s testimony at the hearing is

in contrast to its statements made at the earlier trial. This is not simply the trial

court stating its internal thoughts regarding its decisions as discussed by the Waco

33
Court in Stewart. State v. Stewart, 282 S.W.3d 729, 737 (Tex. App.—Austin

2009, no pet.). Here, the trial court put its internal thought processes in the record

at trial during its announcement of its decisions. When faced with the error it

divulged in doing so, the trial court later made factual assertions at the new trial

hearing addressing the error and the factual allegations contained in the motion.

To allow this process would be to deny Appellant a meaningful

consideration of the merits of its claims at the Motion for New Trial and on appeal

to this Court.

H. Conclusion

Therefore, this Court should find that the trial court erred in considering Dr.

Pittman‘s report and that the error was harmful regarding Appellant‘s conviction.

Consequently, this Court should reverse the judgement of conviction and order a

new trial. Alternatively, this Court should find that the error was harmful to the

punishment assessed and order a new trial on punishment.

II. DID THE TRIAL COURT ERR IN OVERRULING THE MOTIONS

TO SUPPRESS EVIDENCE

Appellant filed a Motion to Suppress: Seizure Without Warrant alleging

that certain items of evidence were seized by law enforcement without a warrant

and admitted at trial. (C.R. pg. 43). Appellant also filed a Motion to Suppress

34
challenging the execution of the search warrant used to seize evidence admitted at

trial. (C.R. pg 40).

A. Seized Without Warrant

Law enforcement seized several items of evidence without first obtaining a

warrant in violation of Appellant‘s Fourth Amendment Rights. Those items were

later admitted at trial in violation of the Texas Code of Criminal Procedure.

The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. Const. amend. IV. To suppress evidence because of

an alleged Fourth Amendment violation, the defendant bears the initial burden of

producing evidence that rebuts the presumption of proper police conduct. Amador

v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007); see Young v. State, 283

S.W.3d 854, 872 (Tex.Crim.App.2009). A defendant satisfies this burden by

establishing that a search or seizure occurred without a warrant. Amador, 221

S.W.3d at 672. Once the defendant has made this showing, the burden of proof

shifts to the State, which is then required to establish that the search or seizure was

conducted pursuant to a warrant or was reasonable. Amador. at 672–73; Torres v.

State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488,

492 (Tex.Crim.App.2005).

A search or seizure conducted without a warrant is per se unreasonable

unless it falls within one of the ―specifically defined and well-established‖

35
exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615

(Tex.Crim.App.), cert. denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410

(2003); Best v. State, 118 S.W.3d 857, 862 (Tex.App.-Fort Worth 2003, no pet.).

Whether a search or seizure is reasonable is a question of law that is

reviewed de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004).

Article 38.23 of the Texas Code of Criminal Procedure provides ―[n]o

evidence obtained by an officer or other person in violation of any provisions of

the Constitution or laws of the State of Texas, or of the Constitution or laws of the

United States of America, shall be admitted in evidence against the accused on the

trial of any criminal case.‖ Tex. Crim. Proc. Code Ann. § art. 38.23 (West).

Texas law does not recognize the inevitable-discovery doctrine, which

would permit admission of evidence obtained in an unlawful search if such

evidence would later have been obtained lawfully. In Daugherty, the court of

criminal appeals confirmed that, if evidence was obtained illegally under article

38.23(a) of the code of criminal procedure, it must be excluded. State v.

Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App. 1996). No exception exists for

evidence that later might have been obtained lawfully. State v. Daugherty, 931

S.W.2d at 269. Thus, unless evidence is obtained legally with a search warrant or

through one of the carefully-crafted exceptions to the warrant requirement, the

evidence must be excluded.

36
 Likewise, the Court of Criminal Appeals has rejected an effort to broaden

the good-faith exception using federal precedent, and it has refused to adopt federal

exceptions inconsistent with the text of our statutory exclusionary rule. Howard v.

State, 617 S.W.2d 191, 193 (Tex.Crim.App.1979) (op. on reh'g) (declining to

adopt federal good-faith doctrine of Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct.

2627, 61 L.Ed.2d 343 (1979)); see also Daugherty, 931 S.W.2d at 270 (―But

Article 38.23 already contains one express exception, see Subsection (b) thereof,

and according to the rules of statutory construction, where a statute contains an

express exception, its terms must apply in all cases not excepted.‖); id. (―This

construction is based on the express language of Article 38.23, not on blind

obedience to United States Supreme Court decisions.‖). Based on these precedents,

we hold the good-faith exceptions of do not apply to the Texas exclusionary rule.

Douds v. State, 434 S.W.3d 842, 861-62 (Tex. App.—Houston [14th Dist.] 2014),

petition for discretionary review granted (Sept. 17, 2014).

1. Analysis

Officers seized items from Appellant prior to the issuance of a search

warrant for those items. The State stipulated to Appellant‘s standing to challenge

the seizure of the items. (R.R. Vol. 2 pg. 37). Appellant proved at the hearing that

the items were seized prior to the issuance of the search warrant. Therefore, the

37
burden shifted to the State to prove that the seizure fell within one of the

―specifically defined and well-established‖ exceptions to the warrant requirement.

Although the State did not specifically set out an exception to the warrant

requirement, the State seemed to suggest that seizure of items for the sole purpose

of holding them until a warrant could be obtained is legally different than

searching the item upon seizure. Appellant has found no authority providing for

that ―specifically defined and well-established‖ exception to the warrant

requirement.

The closest exception to that assertion is the ―exigent circumstances‖

exception.

However, Officer Weatherford asserted no ―exigent circumstances‖ in her

decision to seize the evidence from Appellant and to remove them to the evidence

locker at the SSPD. She merely asserted that since she believed them to be

evidence, she seized them. Officer Young did assert the possibility of the

contamination of the evidence. However, he fell well short of establishing the

factors necessary for that exception.

The McNairy court identified five factors relevant to a reasonable

determination by the searching officers that evidence might be destroyed or

removed before they obtained a search warrant: (1) the degree of urgency involved

and the amount of time necessary to obtain a warrant; (2) a reasonable belief that

38
the contraband is about to be removed; (3) the possibility of danger to police

officers guarding the site of the contraband while a search warrant is sought; (4)

information indicating the possessors of the contraband are aware that police are

on their trail; and (5) the ready destructibility of the contraband and the knowledge

that efforts to dispose of narcotics and to escape are characteristic behavior of

persons engaged in narcotics trafficking. Ramirez v. State, 105 S.W.3d 730, 744

(Tex. App.—Austin 2003, no pet.), citing McNairy v. State, 835 S.W.2d 101, 106–

07 (Tex.Crim.App.1991) and United States v. Rubin, 474 F.2d 262, 268 (3d

Cir.1973).

The trial court did not make a finding of ―exigent circumstances,‖ nor

address the factors normally associated with that finding. (C.R. pg. 54-57).

Furthermore, the trial court‘s finding that officers at the scene had ―good

reason to believe‖ that the person they were dealing with was the suspect is not

supported by the record. The officers could point to no evidence as to why they

began to believe that the person was the suspect. The State presented no witness

that explained how they came to that conclusion. The evidence showed merely

that one officer had a ―gut feeling,‖ another officer thought someone started calling

him ―Tony,‖ and another had a firm belief but could not explain how that came to

be.

39
 Also, the trial court‘s finding that the officers were acting in ―good faith‖

when they seized the items is of no consequence. The good faith exception to the

warrant requirement does not apply in Texas.

Therefore, the State failed to carry its burden of proof that the seizures fell

within a ―specifically defined and well-established‖ exception to the warrant

requirement.

2. Harm

The error here is constitutional in nature because it stems from a violation of

the United States Constitution. The items seized were used by the State to link

Appellant to the crime through matching Ms. Crayton‘s DNA contained in blood

stains on those items taken from Appellant without a warrant. As previously

discussed, this physical evidence was very important to the State‘s case and,

therefore, necessarily impacted the trial court‘s decision regarding guilt.

Consequently, this Court should reverse the judgement of conviction and

remand this case to the trial court for a new trial.

B. Improper Execution of Search Warrant

The officers executing the search warrant did not have jurisdiction to

conduct the search and seizure of the evidence. The State failed to prove that the

execution of the search warrant was assisted by an officer with proper jurisdiction.

40
 Article 18.04 (3) requires that ―[a] search warrant issued under this chapter

shall be sufficient if it contains the following requisites:

…

(3) that it command any peace officer of the proper county to search

forthwith the person, place, or thing named; …‖

Tex. Crim. Proc. Code Ann. § art. 18.04 (West).

The Court of Criminal Appeals has held that an officer, executing a search

warrant outside of his jurisdiction, must be assisted by an officer with jurisdiction

at the location of the execution. Keen v. State, 626 S.W.2d 309, 313 (Tex. Crim.

App. 1981 overruled on other grounds), citing Reynolds v. State, 506 S.W.2d 864,

864 (Tex. Crim. App. 1974) and Gilbert v. State, 493 S.W.2d 783, 783 (Tex. Crim.

App. 1973).

Here, the items were seized pursuant to the search warrant in Smith County,

Texas. (R.R. Vol. 2 pg. 172). The officers that executed the search warrant were

commissioned by the Sulphur Springs Police Department having no jurisdiction in

Smith County, Texas. The State failed to prove that a peace officer with

jurisdiction in Smith County, Texas assisted in the execution of the search warrant.

Therefore, the warrant was executed illegally and the trial court erred in overruling

Appellant‘s Motion to Suppress those items.

41
 Considering the nature of the items seized and the State‘s use of those items

at trial, the harm associated with the error is obvious. The items were used to

develop Appellant‘s DNA that was matched to the murder weapon. (R.R. SX-

92B). Also, the fingernail clippings of Appellant had the victim‘s DNA on them.

(R.R. SX-92B). Appellant‘s DNA was used to match him to clothing items that

had the victim‘s blood on them. (R.R. SX-92B). The admission of this evidence

was particularly damning to Appellant and was significant in the trial court‘s

finding of guilt.

Therefore, this Court should find the error harmful and reverse the judgment

of conviction and remand the case for a new trial.

CONCLUSION AND PRAYER

It is for the reasons contained herein that Appellant would respectfully pray

that this Court of Appeals for the Sixth District reverse the judgment of sentence of

the Appellant and remand the case to the 8th Judicial District for retrial of the case

or alternatively of the punishment phase.

42
 Respectfully submitted,

/s/ Martin Braddy
Martin Braddy
Attorney for Appellant
SBN 00796240
121 Oak Ave., Suite A
Sulphur Springs, Texas 75482
(903) 885-2040
(903) 500-2704 fax

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to 8TH Judicial District Attorney, Will Ramsay, on this

the 26th day of April, 2015.

/s/ Martin Braddy
Martin E. Braddy

43
 WORD COUNT CERTIFICATION

This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains

7,912 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Martin Braddy
Martin E. Braddy

44