ACCEPTED
06-15-00095-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/13/2015 10:00:49 AM
DEBBIE AUTREY
CLERK
No. 06-15-00095-CR
____________________________________________
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE 7/13/2015 10:00:49 AM
DEBBIE AUTREY
SIXTH COURT OF APPEALS Clerk
AT TEXARKANA, TEXAS
____________________________________________
JAMES ARTHUR BAXLEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
____________________________________________
APPEAL FROM
TH
THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NO. 1424312
____________________________________________
APPELLANT’S BRIEF
____________________________________________
Wade A. Forsman
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144, f. 903.689.7001
wade@forsmanlaw.com
Attorney for Appellant
James Arthur Baxley
ORAL ARGUMENT REQUESTED
Appellant’s Brief
IDENTITY OF PARTIES AND COUNSEL
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 Appellant’s appellate counsel
James Arthur Baxley Wade A. Forsman
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144 telephone
903.689.7001 facsimile
wade@forsmanlaw.com
Appellant’s trial counsel
Cynthia Braddy
1109 Main Street
Commerce, TX 75428
903.243.3577 telephone
Appellee Appellee’s trial & appellate counsel
The State of Texas Matthew Howard Harris
Assistant District Attorney
8th Judicial District
P.O. Box 882 (75483-0882)
114 Main Street
Sulphur Springs, TX 75482
903.885.0641 telephone
903.885.0640 facsimile
mharris@hopkinscountytx.org
Appellant’s Brief Page i
TABLE OF CONTENTS
Identity of Parties and Counsel ……………………………………………………. i
Table of Contents ………………………………………………………………… ii
Index of Authorities ……………………………………………………………. iv
Statement of the Case …………………………………………………………….. 1
Issue Presented …………………………………………………………………... 2
POINT OF ERROR NO. 1: The trial court erred in crediting the
testimony of Sergeant Mark Estes.
Statement of Facts ……………………………………………………………….. 2
I. The indictment………………………………………………………. 2
II. Testimony by Sergeant Mark Estes…………………………………. 3
A. Estes’s testimony during the hearing on Baxley’s
Motion to Suppress his Arrest…………………………………. 3
B. Estes’s testimony at trial……………………………………… 5
III. Baxley convicted and sentenced; Baxley appeals…………………… 7
A. The jury renders a verdict of guilty and assesses
punishment at two years TDCJ, with no fine………………… 7
B. The trial court sentences Baxley…………………………….. 8
C. Baxley appeals………………………………………………. 8
Summary of the Argument………………………………………………………. 8
Argument …………………………………………………………………............ 8
Appellant’s Brief Page ii
Prayer ………………………………………………………………………….. 10
Certificate of Word Count ………………………………………………………. 11
Certificate of Service……………………………………………………………...11
Appellant’s Brief Page iii
INDEX OF AUTHORITIES
Cases
Turrubiate v. State,
399 S.W.3d 147 (Tex. Crim. App. 2013)………………………………… 8, 9
Valtierra v. State,
310 S.W.3d. 442 (Tex. Crim. App. 2010)………………………………… 9
Court Rules
Tex. R. App. P. 9.4(i)(3) ………………………………………………………… 11
TEX. R. APP. P. 38(a) ……………………………………………………………… i
Appellant’s Brief Page iv
No. 06-15-00095-CR
____________________________________________
IN THE
SIXTH COURT OF APPEALS
AT TEXARKANA, TEXAS
____________________________________________
JAMES ARTHUR BAXLEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
____________________________________________
APPEAL FROM
TH
THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NO. 1424312
____________________________________________
APPELLANT’S BRIEF
____________________________________________
STATEMENT OF THE CASE
This is an appeal from a conviction for possession of less than one gram of a
controlled substance (methamphetamine), a state jail felony, for which the trial court
sentenced Appellant to the maximum – namely, two (2) years confinement in the
State Jail Division of the Texas Department of Criminal Justice (“TDCJ”).
Appellant’s Brief Page 1
ISSUES PRESENTED
POINT OF ERROR NO. 1: The trial court erred in crediting the
testimony of Sergeant Mark Estes.
STATEMENT OF FACTS
I. The indictment
On November 10, 2014, an indictment was filed against James Arthur Baxley
(Vol. 1; p. 6). The indictment alleges a third-degree felony (Vol. 2; p. 5; l. 17-19).
The indictment states that on or about September 23, 2014 Baxley possessed
methamphetamine in an amount of less than one gram in a drug-free zone (Vol. 2;
p. 4; l. 10-14).
This indictment was amended twice. The State filed its Motion to Amend
Indictment on March 19, 2015 (Vol. 1; p. 23), and the trial court granted the motion
on March 20, 2015 (Vol. 1; p. 26). The State filed a second Motion to Amend
Indictment (Vol. 1; p. 76) on April 28, 2015, and the trial court granted the motion
on May 21, 2015 (Vol. 1; p. 75). The result was that minutes before the
commencement of voir dire, which took place on June 1, 2015, Baxley pleaded “not
guilty” to a straightforward possession case, a state jail felony (Vol. 5; p. 8; l. 9).
Appellant’s Brief Page 2
II. Testimony by Sergeant Mark Estes
On September 23, 2014 the Sulphur Springs Police Department (“SSPD”)
employed an individual named Mark Estes (Vol. 5; p. 167; l. 12-15). He held the
rank of Sergeant. Id.
In an effort to expedite the proceedings, the trial court stated that it was aware
that “Sergeant Mark Estes is employed by the Sulphur Springs Police Department
and assigned to the Special Crimes Unit and has been a police officer for many
years” (Vol. 5; p. 167; l. 12-15).
Estes testified on two separate occasions in this case. The first occasion was
during a hearing that the trial court held on Baxley’s motion to suppress his arrest.
The second occasion was during the trial itself. Each is discussed below.
A. Estes’s testimony during the hearing on Baxley’s Motion to
Suppress his Arrest
This hearing is found in Volume 5. It starts on page 166, line 15, and it
continues to page 175, line 22. The trial court described the issue it was being asked
to decide this way:
We're here based upon an oral motion to suppress raised by Ms. Braddy
this morning. And the crux of it, as I understand, is that Mr. Estes
arrested the defendant based upon two outstanding traffic warrants,
slash, capias pro fines. And again I use that warrant, slash, because Ms.
Braddy [i.e., Baxley’s trial counsel] makes a -- to her, an important
legal distinction between the two, one of which would justify an arrest
Appellant’s Brief Page 3
and one -- and another set of circumstances might not, according to Ms.
Braddy (Vol. 5; p. 167; l. 2-10).
Estes testified that on September 23, 2014 he learned that Baxley had two
arrest warrants (Vol. 5; p. 169; l. 6). Estes believed these two warrants had been
issued through a municipal judge (Vol. 5; p. 203; l. 7-8 & 16-18). Explained Estes,
“Some of the patrol guys [in SSPD] actually get the city warrant list from the
municipal court on a random basis” (Vol. 5; p. 169; l. 9-11). Estes testified that he
had reviewed this warrant list because, said Estes, this warrant list just so happened
to be “on the briefing table in the squad room” (Vol. 5; p. 169; l. 11-12).
These two warrants are wholly unrelated to the matters contained in the
indictment. Instead, the two warrants were for traffic violations – specifically, an
expired operator's license, and a failure to control speed. (Vol. 5; p. 171; l. 16-21).
Estes testified that based on this warrant list he and another SSPD officer
drove to where Baxley lived (Vol. 5; p. 168; l. 15). Estes did not actually have in his
possession a “physical copy of the warrant” when he drove to Baxley’s house (Vol.
5; p. 168; l. 21-23). Instead, Estes “confirmed the warrant” through SSPD dispatch
(Vol. 5; p. 168; l. 19), and once at Baxley’s house he saw Baxley in the front yard
(Vol. 5; p. 168; l. 20).
The trial court overruled the motion to suppress. In explaining its ruling the
trial court said, “[T]he bottom line is, did the officer have a good-faith basis for
Appellant’s Brief Page 4
making the arrest based on the outstanding warrant? The Court will find that he
certainly was legally authorized to do so, and the defendant's motion to suppress the
arrest is denied” (Vol. 5; p. 175; l. 17-22).
B. Estes’s testimony at trial
This testimony is also found in Volume 5. It starts on page 180, line 17, and
it continues to page 218, line 21. What follows is Estes’s testimony.
SSPD has employed Estes for 14 years, the last 3 of which it has assigned
Estes to the “Special Crimes Unit” or “SCU” (Vol. 5; p. 185; l. 4-5). The job duties
of SCU are almost entirely – Estes says “99 percent” (Vol. 5; p. 185; l. 8) -- related
to drug offenses. Estes described SCU’s duties this way:
Normally we work undercover CIs -- confidential informants -- that
purchase narcotics for us from suspects or people who are distributing
narcotics.··And that's our job, is to try to shut that down or slow that
down by using confidential informants.··Most of the time that is our
normal duties….. (Vol. 5; p. 197; l. 16-22).
On September 23, 2014 Estes learned that Baxley had “two active traffic
warrants” that called for his arrest (Vol. 5; p. 181; l. 13-14). Armed with this
information Estes went to where Baxley “was last known to reside at” (Vol. 5; p.
181; l. 17-18).
Estes drove to Baxley’s residence in an unmarked car (Vol. 5; p. 182; l. 20-
21). The car had no video or audio equipment (Vol. 5; p. 182; l. 22-24 & p. 206; l.
Appellant’s Brief Page 5
14). The car had no lights or siren (Vol. 5; p. 182; l. 18-20). The car had no field kit
to test for illegal narcotics (Vol. 5; p. 209; l. 22-23 & P. 210; l. 5-7).
According to the two traffic warrants from a municipal judge, the place where
Baxley resided was 204 Whitworth. See Defendant’s Exs. Nos. 1 and 2 (Vol. 7). 1
However, Estes did not drive to 204 Whitworth (Vol. 5; p. 204; l. 18-25). Indeed,
Estes testified that had no intention of driving to 204 Whitworth (Vol. 5; p. 207; l.
9-12).
Instead, Estes drove to a different location – namely, 1125 Elm, where he,
Estes, believed Baxley lived (Vol. 5; p. 204; l. 24-25). Estes turned out to be right.
Estes observed Baxley at that location in the front yard “working on a car” (Vol. 5;
p. 181; l. 17-19).
As previously noted, Estes did not actually have a “physical copy of the
warrant” when he drove to Baxley’s house (Vol. 5; p. 168; l. 21-23). Instead, Estes
radioed dispatch and confirmed that the warrants were good and that Baxley was
still showing wanted (Vo. 5; p. 182; 14-16).
Estes then “made contact” with Baxley (Vol. 5; p. 182; l. 17). Estes informed
Baxley, who was on his knees working on the driver’s side floorboard area of his
car, as to why he was there (Vol. 5; p. 183; l. 4-8). Estes observed Baxley going for
1
Defendant’s Exhibits 1 and 2 were admitted into evidence at Vol. 5; p. 204; l. 3-4.
Appellant’s Brief Page 6
his wallet in his right pants pocket (Vol. 5; p. 183; l. 18-19). Estes told Baxley to
stand up, and when Baxley complied Estes cuffed him (Vol. 5; p. 183; l. 22-24).
Estes then went for the wallet that he had seen Baxley going for, and in the wallet
Estes found what he believed was methamphetamine. (Vol. 5; p. 184; l. 2-8 & p.
185; l. 20).
Estes did not field test the meth he believed he had found on Baxley. Instead,
Estes field tested what he had found on Baxley after his return to the police station
(Vol. 5; p. 205; l. 4-8).
III. Baxley convicted and sentenced; Baxley appeals
A. The jury renders a verdict of guilty and assesses
punishment at two years TDCJ, with no fine.
On June 1, 2015, the jury returned the following verdict -- guilty of possession
of a controlled substance, namely methamphetamine, in an amount of less than one
gram as charged in the indictment (Vol. 5; p. 267; l. 9-12).
Baxley, by and through his trial counsel, had previously filed Defendant’s
Election as to Punishment (Vol. 1; p. 72). In that document Baxley elected for the
jury to assess punishment if convicted. See also Vol. 5; p. 8; l. 11-14, where the trial
court confirms that if there is a finding of guilt, then Baxley elects for that same jury
to assess punishment.
Appellant’s Brief Page 7
Accordingly, the jury assessed punishment on June 2, 2015 as follows --
confinement by the Texas Department of Criminal Justice for a term of two years
and no fine (Vol. 6; p. 46; l. 19-21).
B. The trial court sentences Baxley
On that same day, i.e., June 2, 2015, the trial court sentenced Baxley to two
years of confinement in the State Jail Division of the Texas Department of Criminal
Justice (Vol. 6; p. 50; l. 5-8). The trial court assessed restitution in the amount of
$180 (Vol. 6; p. 50; 16-18). The trial court assessed no fine (Vol. 6; p. 50; l. 9), and
it waived attorney fees and court costs (Vol. 6; p. 50; l. 9-15).
C. Baxley appeals
Baxley, by and through his trial attorney, filed a notice of appeal later that
same day. Notice of Appeal (Vol. 1; p. 110).
SUMMARY OF THE ARGUMENT
POINT OF ERROR NO. 1: The trial court erred in crediting the
testimony of Sergeant Mark Estes.
ARGUMENT
This Court of Appeals reviews the trial court’s denial of a motion to suppress
under a bifurcated standard of review. With regard to the trial court’s factual
findings, the standard of review is abuse of discretion. With regard to the trial court’s
application of the law to the facts, the standard of review is de novo. Turrubiate v.
Appellant’s Brief Page 8
State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)(citing Valtierra v. State, 310
S.W.3d. 442, 447-48 (Tex. Crim. App. 2010)).
It was error for the trial court to credit Estes’s testimony. The notion that Estes,
who was employed for three years in a work unit (SCU) that is devoted “99 percent”
to drug-related offenses, fortuitously happened to see Baxley’s name on a so-called
“warrant list” for two traffic violations, and then, just so happened to drive to an
address that is different from the address contained on this same “warrant list,” in an
unmarked car, and with no video or audio devices – curiously, Estes did not even
bother to take the warrant upon which he supposedly relies -- strains the credulity of
a reasonable person. Consider the following two exchanges:
Q. Okay. So is it your regular practice to take a look at the
warrant list every day?
A. I don't do it every day. I just happened to look at it that day
and seen that he [i.e., Baxley] was wanted.
(Vol. 5; pp. 208-09; l. 25-3).
…….
Q. And how much of your job would you say -- as of September
23, 2014, at that time frame, how much of your job consists of
actually serving warrants?
MR. HARRIS: Objection, Your Honor; relevance.
THE COURT: Overruled.
A. It just depends on case-by-case basis.
Q.· (By Ms. Braddy)··So did you arrest everybody on the warrant
list that day?
A. No, ma'am.
Appellant’s Brief Page 9
Q. And how did -- you just decided to choose Mr. Baxley to go
and arrest on these warrants?
A. We were out and drove by his residence and seen him in the
yard, and I had knowledge that he was wanted, so, yes, I
stopped and made the arrest.
(Vol. 5; p. 198; l. 6-21). The record evidence like the foregoing can reveal one and
only one conclusion. Estes, an experienced police officer, used the two traffic
warrants from a municipal court as a pretext to go fishing – that is, to see if he could
hook Baxley. Estes succeeded. Estes caught his fish.
Maybe one can credit Estes’s creativity and resourcefulness. However, and as
happened here, law enforcement should not be allowed to evade the general rule
requiring that warrants be used.
PRAYER
WHEREFORE, premises considered, Appellant, James Arthur Baxley,
respectfully requests that the judgment of the trial court be reversed and remanded
for new trial, and/or for such other and further relief to which he may establish
himself entitled.
Respectfully submitted,
By: __/s/ Wade A. Forsman_
Wade A. Forsman
State Bar No. 07264257
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144 East Texas
Appellant’s Brief Page 10
972.499.4004 Dallas/Fort Worth
903.689.7001 Facsimile
wade@forsmanlaw.com
Attorney for Appellant
James Arthur Baxley
CERTIFICATE OF WORD COUNT
Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 2,636 words.
__/s/ Wade A. Forsman_
Wade A. Forsman
CERTIFICATE OF SERVICE
This is to certify that on July 13, 2015, I served a true and correct copy of the
above and foregoing Appellant’s Brief by email on Matthew Howard Harris,
Assistant District Attorney, at 114 Main Street, Sulphur Springs, Texas 75482.
__/s/ Wade A. Forsman_
Wade A. Forsman
Appellant’s Brief Page 11
James Arthur Baxley v. State
Combined Opinion