ACCEPTED
01-15-00043-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/14/2015 12:00:00 AM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00043-CR
IN THE The StateFILED requests IN -
1st COURT OF--APPEALS ----
oral
HOUSTON, argument
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--- TEXAS
FIRST COURT OF APPEALS if appellant- - ----ID K argues ----
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9/12/2015
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--- V -----
CHRISTOPHER -- A. PRINE
----
OF TEXAS ----Clerk
AT HOUSTON, TEXAS
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
9/14/2015 8:46:00 AM
DeJESUS FOBBS, CHRISTOPHER A. PRINE
APPELLANT Clerk
V.
THE STATE OF TEXAS,
APPELLEE
BRIEF FOR THE STATE
ON APPEAL FROM THE 356TH JUDICIAL DISTRICT COURT,
HARDIN COUNTY, TEXAS, CAUSE NUMBER 22,960,
THE HONORABLE STEVE THOMAS PRESIDING
Counsel of Record:
SUE KORIOTH, SBN# 11681975 DAVID A. SHEFFIELD
SPECIAL PROSECUTOR, HARDIN COUNTY HARDIN COUNTY DISTRICT ATTORNEY
DISTRICT ATTORNEY’S OFFICE P.O. BOX 1409
P.O. BOX 600103 KOUNTZE, TEXAS 77625
DALLAS, TEXAS 75360
suekorioth@aol.com (409) 246-5160
(214) 384-3864 fax (409) 246-5142
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: DeJesus Fobbs
APPELLANT’S TRIAL COUNSEL: Stella Morrison and
Bryan Laine
APPELLANT’S APPELLATE COUNSEL: Joel Bennett
APPELLEE: The State of Texas, through the Hardin County District Attorney
APPELLEE’S TRIAL COUNSEL: District Attorney David Sheffield
and Assistant District Attorneys Bruce Hoffer and Kendra Walters
APPELLEE’S APPELLATE COUNSEL: District Attorney David A. Sheffield
and Special Prosecutor Sue Korioth, P.O. Box 600103, Dallas, Texas 75360
-ii-
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -v-
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
STATE'S COUNTERPOINT ONE
NO JURY INSTRUCTION REGARDING ARTICLE 38.23 WAS NECESSARY BECAUSE NO
FACTS ISSUES WERE RAISED IN REGARD TO THE ENCOUNTER BETWEEN APPELLANT AND
THE OFFICER; THE TRIAL COURT DID NOT ERR IN OMITTING AN UNNECESSARY AND
UNREQUESTED INSTRUCTION.
STATE'S COUNTERPOINT TWO
APPELLANT FAILED TO PRESERVE THIS COMPLAINT FOR REVIEW; THE TRIAL COURT
PROPERLY ADMITTED THE EVIDENCE OF THE K2, MARIJUANA, AND GUN BECAUSE THEY
WERE SAME TRANSACTION CONTEXTUAL EVIDENCE.
STATE'S COUNTERPOINT THREE
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING STATE'S EXHIBIT 12B,
THE JUDGMENT IN CAUSE NUMBER 14,045.
STATE'S COUNTERPOINT FOUR
APPELLANT HAS FAILED TO PRESERVE HIS TRUE COMPLAINT, THAT THE TRIAL COURT
ERRONEOUSLY ADMITTED THE JUDGMENT IN 13,997. IN ANY EVENT,
THE EVIDENCE WAS SUFFICIENT TO PROVE APPELLANT WAS
PREVIOUSLY CONVICTED OF A FELONY IN CAUSE NUMBER 13,997. . . . . . . . . . . . -2-
STATEMENT OF PERTINENT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
STATE'S COUNTERPOINT ONE , restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
STATE'S COUNTERPOINT TWO , restated.. . . . . . . . . . . . . . . . . . . . . . . . . . -11-
-iii-
STATE'S COUNTERPOINT THREE, restated. . . . . . . . . . . . . . . . . . . . . . . . . -15-
STATE'S COUNTERPOINT FOUR, restated. . . . . . . . . . . . . . . . . . . . . . . . . . -15-
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
Rule 9.4 Certificate of Compliance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
-iv-
TABLE OF AUTHORITIES
CASES
Allen v. State,
2015 WL 5076288 (Tex. App. - Houston [1st Dist.]Aug. 27, 2015, no pet.
hist.)(not designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
Devoe v. State,
354 S.W.3d 457 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . -15-
Flowers v. State,
220 S.W.3d 919 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . -21-
Garcia v. State,
367 S.W.3d 683 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . -20-
Gomez v. State,
459 S.W.3d 651 (Tex. App.- Tyler 2015, pet. ref’d). . . . . . . . . . . . . . . . -21-
Johnson v. State,
425 S.W.3d 344 (Tex. App. - Houston [1st Dist.] 2011, pet. ref’d). . . . . -14-
Lane v. State,
151 S.W.3d 188 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . -14-
Madden v. State,
242 S.W.3d 504 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . -10-
Nolan v. State,
39 S.W.3d 697, 698 (Tex. App. - Houston [1st Dist] 2001, no pet.).. . . . -22-
Pruitt v. State,
2015 WL 2090703, at *1 (Tex. App. - Texarkana May 5, 2015, no pet.)
(Not designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
Siros v. State,
No. 01-14-00288-CR, 2015 WL 3981774, at *7
-v-
(Tex. App. - Houston [1st Dist.] June 30, 2015, no pet.)
(not designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
Thomas v. State,
___ S.W.3d ___, 2015 WL 4101164, at *5
(Tex. App. - Houston [1st Dist.] July 7, 2015, no pet.)
(not yet reported).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
STATUTES
Tex. Code Crim. Proc. Article 38.23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
Tex. Penal Code section 12.42(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-, -22-
RULES
Tex.R.App. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-, -21-, -22-
-vi-
NO. 01-15-00043-CR
DEJESUS FOBBS,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
TO THE HONORABLE COURT OF APPEALS:
Appellee, the State of Texas, respectfully submits this brief in reply to the brief
of Appellant, Dejesus Fobbs.
STATEMENT OF THE CASE
Appellant was convicted by a jury on his not-guilty plea of possession of
cocaine in an amount of 4 grams or more, but less than 200 grams, enhanced by two
prior sequential felonies, and the jury, having found that the enhancement paragraphs
were true, assessed a sentence of confinement for ninety-nine years in TDCJ-ID. (CR:
131).
STATE'S COUNTERPOINT ONE
NO JURY INSTRUCTION REGARDING ARTICLE 38.23 WAS NECESSARY BECAUSE NO
FACTS ISSUES WERE RAISED IN REGARD TO THE ENCOUNTER BETWEEN APPELLANT
AND THE OFFICER; THE TRIAL COURT DID NOT ERR IN OMITTING AN UNNECESSARY
AND UNREQUESTED INSTRUCTION.
STATE'S COUNTERPOINT TWO
APPELLANT FAILED TO PRESERVE THIS COMPLAINT FOR REVIEW; THE TRIAL COURT
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PROPERLY ADMITTED THE EVIDENCE OF THE K2, MARIJUANA, AND GUN BECAUSE
THEY WERE SAME TRANSACTION CONTEXTUAL EVIDENCE.
STATE'S COUNTERPOINT THREE
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING STATE'S EXHIBIT
12B, THE JUDGMENT IN CAUSE NUMBER 14,045.
STATE'S COUNTERPOINT FOUR
APPELLANT HAS FAILED TO PRESERVE HIS TRUE COMPLAINT, THAT THE TRIAL
COURT ERRONEOUSLY ADMITTED THE JUDGMENT IN 13,997. IN ANY EVENT,
THE EVIDENCE WAS SUFFICIENT TO PROVE APPELLANT WAS
PREVIOUSLY CONVICTED OF A FELONY IN CAUSE NUMBER 13,997
STATEMENT OF PERTINENT FACTS
The State objects to those facts set out in appellant’s brief which are
unsupported by the record in this case.
The State’s first witness was Travis Hartless, who at the time of this offense
was a patrol officer with Silsbee Police Department. (RR6: 44). Hartless was
working the night shift, 6 p.m. to 6 a.m., at the time of this offense; he explained that
on-duty officers patroled the whole city and responded as needed. At the time of this
offense, he had received information that there were auto burglaries occurring in the
southern half of town. (RR6: 45-47). He was on routine patrol and went by 345 West
Avenue L, because homeowner Clifford Briscoe and another nearby homeowner,
Thomas Lacy, had asked for extra patrols due to the auto burglaries. (RR6: 48-49).
As he drove by, he noticed an interior light on in a vehicle; it was 2:30 a.m. (RR6:
-2-
49). He turned his overhead “alley light” flood lights on, which shone sideways at
the vehicle, and he could see someone moving around inside the vehicle. (RR6: 50-
51). He got out and went to the vehicle to see why someone was in it at 2:30 in the
morning, because he thought they might be rummaging through the console or glove
box in the course of burglarizing the vehicle, because when he turned his overhead
light on the vehicle, the person inside slumped down over the steering wheel. (RR6:
52).
Officer Hartless went straight to the driver’s side window; he was being
cautious because there was no doubt the person in the car knew he was behind them.
(RR6: 52). As Hartless approached, the person inside popped open a newspaper,
which Hartless believed was intended to obstruct his view inside the car. Hartless
knocked on the glass, and the occupant lowered the window a few inches. (RR6: 53).
As soon as the window was cracked open, Hartless asked “hey, what’s going on?”
(RR6: 53). As soon as he said it he became aware of the odor of burnt marijuana or
what he believed to be marijuana. (RR6: 54). The officer had received training and
had occasion during his work experience to smell marijuana on many occasions.
(RR6: 54). He asked the man in the vehicle to step out in order to further investigate.
When the man, whom the officer identified as appellant, stepped out, Hartless saw
that he was several inches taller, and he recognized appellant from coming into
-3-
contact with him on prior occasions. (RR6: 54–55, 61). Hartless patted appellant
down and handcuffed him, then placed him in the back seat of the patrol car. (RR6:
55-57). Hartless realized at that time that his body mike was not on, and he activated
it. (RR6: 57). He went back to the vehicle and began searching it, based upon the
odor of marijuana. (RR6: 57-58). When Hartless leaned into the driver’s seat of the
car, he saw two bags of what he recognized as “Kush” or “K2,” which is synthetic
marijuana. The bags were in the open console in plain view. (RR6: 62). Hartless did
not open the packages at that time. (RR6: 62).
After all of this testimony, defense counsel objected to the officer’s expertise
to identify K2. He then asked to approach the bench and objected to further
testimony about the K2, “reurging” his motion in limine. (RR6: 63-64). The State
responded that the evidence was contextual, and the court overruled appellant’s
objection. (RR6: 64).
Hartless continued testifying that he found several bags of what he believed to
be K2 around the center console and that he also found a baggie of marijuana. He
then returned to the patrol car to search appellant more thoroughly to determine if he
had more drugs hidden on his person. (RR6: 64-65). Hartless found $1802 in cash
in appellant’s left-front pant pocket, and a magazine for a gun, fully loaded, in his
back-right pocket. He asked appellant where the gun was that went with the
-4-
magazine, but appellant responded that he did not have a gun. (RR6: 65-67). Before
placing appellant back into the back seat of the patrol car, Hartless removed his cap,
because in his training or experience Hartless was aware that narcotics are frequently
hidden in the sweat band of a cap. (RR6: 67-68). When he removed the cap, he saw
two bags of what appeared to be cocaine sitting on appellant’s head. (RR6: 68).
Hartless identified the bags of cocaine and photos he took of the cocaine he found;
the photos were admitted as State’s exhibits 5 and 6 after defense counsel advised the
court he had “no objection.” (RR6: 68-71).
Hartless testified that after finding the cocaine, he placed appellant under arrest
and went back to the vehicle to make a search incident to arrest and an inventory of
the vehicle. (RR6: 72-73). He found a Beretta handgun in between the passenger
seat and the center console. When the State offered State’s exhibit 4, a photo of the
Beretta and two magazines, defense counsel objected “I would renew my same
objection that we had earlier to Exhibit No. 4,” which objection the trial court
overruled. (RR6: 74-75). Hartless continued testifying at some length about
collecting the gun, magazines, K2, and marijuana. (RR6: 75-78). Defense counsel did
not make any further objection until the State tendered State’s exhibit 3, a photo of
the various items of contraband, at which time defense counsel objected that “these
purpost to be extraneous offenses, and the relevance to this particular case is not
-5-
there. The pictures of the cocaine may be, but I’m just preserving . . . .” At that point,
the court advised defense counsel “you have preserved that. No doubt. You’ve made
it abundantly clear, and I respectfully overrule it.” (RR6: 78-79).
On cross-examination, Officer Hartless agreed that he had not received a
specific dispatch to that address on the night of the offense, and he agreed that he did
not call out a physical evidence officer to take photos. Hartless testified that he did
not take photos of the burnt marijuana which he saw during the search of the vehicle,
nor did he collect the burnt marijuana. (RR6: 87-89).
Hartless explained that he did see the burnt end of a marijuana cigarette in an
ashtray in the car. (RR6: 92).
Silsbee Police Officer James Shawn Blackwell next testified that he was
assistant chief of police and evidence technician for the department. (RR6: 94-95).
He retrieved State’s exhibit 10, which he had taken to the Houston DPS crime lab and
picked up again. (RR6: 95-96, 99).
Texas DPS forensic scientist Jennifer Johnson testified that she worked out of
the Texas DPS Crime Lab in Houston. (RR6: 102-03). She explained the protocol
for analysis of controlled substances. (RR6: 104-07). Defense counsel requested a
hearing on his motion to suppress, which the court permitted outside the jury’s
presence. (RR6: 110). Defense counsel presented no witnesses on the motion to
-6-
suppress, but simply made various arguments against admission of the evidence
obtained from appellant’s vehicle and person. (RR6: 111-16). The court denied the
motion to suppress, (RR6: 118), and Johnson then continued her testimony. She
weighed and analyzed the two packages which the officer suspected were cocaine.
The first package weighed 4.53 grams, and the second weighed 4.24 grams. (RR6:
121-22). She described her testing, which revealed that each packet contained
cocaine. (RR6: 122-26). On cross examination, defense counsel asked Johnson
whether she received for testing the other items from this offense, including K2 and
marijuana. (RR6: 128-29). The State rested after Ms. Johnson’s testimony. (RR6:
138).
Appellant called Carolyn Evans, who testified that she had lived in appellant’s
neighborhood for thirty years, that she was unaware of any recent up-tick in auto
burglaries or residential burglaries. Evans testified, however, that she was “sort of
a homebody” and did not pay much attention to things outside her house, and she did
not know whether her neighbor Mr. Briscoe had complained to police about
burglaries. (RR6: 149-54).
Pat Butler testified for appellant that she lived next door to him, that she had
known him for “at least 30 years,” and that she did not know anything about auto
burglaries in the neighborhood. (RR6: 154-57). On cross-examination, she testified
-7-
that she worked “a difficult shift” and that she did not really know if appellant lived
next door. (RR6: 159-61).
Appellant next called Yolanda Arline, who testified that she was appellant’s
mother and that he lived with her at the house in question. (RR6: 166-67). She
claimed he was in the car at 2:30 that morning waiting to take her to dialysis. (RR:
167-68). She explained on cross-examination that her appointments are at 5 a.m. and
that she has to leave at 4 or 4:15 a.m. to be there on time. (RR6: 169-70). She
testified that Tom Lacy lived across the street from her but that she was not aware of
his car being burglarized. (RR6: 181).
Jessie Coleman testified that he lived in appellant’s neighborhood and had not
heard of burglaries there. (RR6: 182-84). When he was asked about his prior felony
convictions, he responded that he had two strokes “awhile back” and could not
remember being convicted of felonies. (RR6: 185-86). On redirect by defense
counsel, Coleman admitted that he had been in jail before and had felony convictions.
(RR6: 188-89) The defense rested after Coleman’s testimony, and the State called
Tom Lacy in rebuttal. (RR6: 190).
Thomas Lacy testified that he lived across the street from appellant’s mother
and that before the date of this offense in May 2014 someone had burglarized his
Suburban. Lacy worked for the sheriff’s department, and he had talked to Officer
-8-
Hartless about the burglary. (RR6: 190-91). Lacy testified that he had talked to a
neighbor, William Bass, as well and that Bass had also had a car burglarized. (RR6:
192-93). Lacy was the last witness at guilt-innocence.
SUMMARY OF THE ARGUMENT
The State contends in response to appellant’s first issue that no 38.23
instruction was necessary because there was no fact issue before the jury regarding
any material fact relevant to the encounter between appellant and the officer.
In response to the second issue, the State contends that appellant failed to
present error to this Court by failing to object each time the evidence in question was
admitted; in any event, the evidence was admissible because the detention and arrest
of appellant and discovery of contraband on his head under his hat would have been
confusing to the jury without introduction of the facts leading up to discovery of the
controlled substance.
In regard to appellant’s third and fourth issues, the State contends that the trial
court acted within its discretion in admitting the judgments in question.
STATE'S COUNTERPOINT ONE , restated
NO JURY INSTRUCTION REGARDING ARTICLE 38.23 WAS NECESSARY BECAUSE NO
FACTS ISSUES WERE RAISED IN REGARD TO THE ENCOUNTER BETWEEN APPELLANT
AND THE OFFICER; THE TRIAL COURT DID NOT ERR IN OMITTING AN UNNECESSARY
AND UNREQUESTED INSTRUCTION.
Appellant complains that the trial court failed to apply sufficiently the law set
-9-
out in Tex. Code Crim. Proc. Article 38.23(a) to the facts of this case,1 although he
concedes that he made no objection on this ground to the charge which was given, nor
did he request any specific application paragraph. (RR6: 194-98). The State
responds that because no fact issue was presented to the jury regarding the legality
of the search and arrest of appellant, no instruction was required.
“A defendant's right to the submission of jury instructions under Article
38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible.”
Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). The Madden
Court explained,
There are three requirements that a defendant must meet before he is
entitled to the submission of a jury instruction under Article 38.23(a):
(1) The evidence heard by the jury must raise an issue of
fact;
(2) The evidence on that fact must be affirmatively
contested; and
(3) That contested factual issue must be material to the
lawfulness of the challenged conduct in obtaining the
evidence.
1
Although appellant seems to contend in his brief that there was no application of article 38.23
to the facts, the trial court did give a general article 38.23(a) instruction, which also included a generic
application: “No evidence obtained by an officer or other person in violation of any provisions of the
Constitution or laws of the State of Texas, or 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. If you believe or have
a reasonable doubt that the evidence was obtained in violation of these provisions, then and in such
event, you shall disregard any such evidence so obtained. [emphasis added]” (CR: 121).
-10-
Madden v. State, 242 S.W.3d at 510.
The Court further explained that “the disputed fact must be an essential one in
deciding the lawfulness of the challenged conduct.” Madden, 242 S.W.3d at 511.
Appellant’s complaints about the encounter between the officer and appellant merely
point to absence of a video recording and the fact that the officer did not collect and
preserve the burnt marijuana that he saw in the interior of the vehicle. Neither of
these matters was in dispute, neither was “essential in deciding the lawfulness of the
challenged conduct,” and the trial court correctly resolved appellant’s motion to
suppress on the issues of law alleged.
STATE'S COUNTERPOINT TWO , restated
APPELLANT FAILED TO PRESERVE THIS COMPLAINT FOR REVIEW; THE TRIAL COURT
PROPERLY ADMITTED THE EVIDENCE OF THE K2, MARIJUANA, AND GUN BECAUSE
THEY WERE SAME TRANSACTION CONTEXTUAL EVIDENCE.
Appellant complains that the trial court abused its discretion in admitting the
officer’s testimony about his detention and arrest of appellant and the search of the
vehicle to the extent that it revealed that the officer smelled marijuana, saw it in the
vehicle, saw and recovered baggies of K2, and found a gun in the car and an extra
magazine on appellant’s person. The State contends in response that appellant failed
to preserve this issue for review, and in any event, the trial court did not abuse its
discretion in admitting the evidence because the detention and seizure of cocaine
-11-
from under appellant’s cap would make little sense had the officer not been able to
relate the surrounding events.
Appellant failed to preserve error with his motion in limine. “A ruling on a
motion in limine does not preserve error for review. See Tex.R.App. P. 33.1; Wilson
v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999).” Siros v. State, No.
01-14-00288-CR, 2015 WL 3981774, at *7 (Tex. App. - Houston [1st Dist.] June 30,
2015, no pet.)(not designated for publication).
Similarly, whether it is categorized at waiver of error or harmless error,
reversible error is not shown where, as here, the defendant does not object each time
evidence of which he complains is offered. As set out above, the record in this case
shows that testimony about the K2, the marijuana, and the gun was adduced from
Officer Hartless without timely objections.
Hartless testified without objection that he smelled the odor of burnt marijuana
or what he believed to be marijuana, (RR6: 54); that he went back to the vehicle and
began searching it, based upon the odor of marijuana, (RR6: 57-58), and that when
he leaned into the driver's seat of the car, he saw two bags of what he recognized as
"Kush" or "K2," which is synthetic marijuana. The bags were in the open console in
plain view. (RR6: 62). Only after all of this testimony did defense counsel object to
the extent that he "reurged" his motion in limine. (RR6: 63-64).
-12-
Hartless continued testifying that he found several bags of what he believed to
be K2 around the center console and that he also found a baggie of marijuana. He
then returned to the patrol car to search appellant more thoroughly. (RR6: 64-65).
Hartless found $1802 in cash in appellant's left-front pant pocket, and a magazine for
a gun, fully loaded, in his back-right pocket. He asked appellant where the gun was
that went with the magazine, but appellant responded that he did not have a gun.
(RR6: 65-67). Before placing appellant back into the back seat of the patrol car,
Hartless removed his cap, because in his training or experience Hartless was aware
that narcotics are frequently hidden in the sweat band of a cap. (RR6: 67-68). When
he removed the cap, he saw two bags of what appeared to be cocaine sitting on
appellant's head. (RR6: 68).
Hartless testified that after finding the cocaine, he placed appellant under arrest
and went back to the vehicle to make a search incident to arrest and an inventory of
the vehicle. (RR6: 72-73). He found a Beretta handgun in between the passenger
seat and the center console. Only when the State offered State's exhibit 4, a photo of
the Beretta and two magazines, did defense counsel object that "I would renew my
same objection that we had earlier to Exhibit No. 4," which objection the trial court
overruled. (RR6: 74-75). Hartless continued testifying at some length about
collecting the gun, magazines, K2, and marijuana. (RR6: 75-78). Defense counsel did
-13-
not make any further objection until the State tendered State's exhibit 3, a photo of
the various items of contraband, at which time defense counsel objected that "these
purport to be extraneous offenses, and the relevance to this particular case is not
there. The pictures of the cocaine may be, but I'm just preserving . . . ." (RR6: 78).
Defense counsel never requested a running objection to the testimony about the items
of evidence which are the subject of this issue on appeal.
“Overruling an objection to evidence will not result in reversal when other such
evidence was received without objection, either before or after the complained-of
ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).” Johnson v.
State, 425 S.W.3d 344, 346 (Tex. App. - Houston [1st Dist.] 2011, pet. ref’d); and see
Lane v. State, 151 S.W.3d 188, 192-93 (Tex. Crim. App. 2004). Because Hartless
referred to each of the complained-of items during his testimony without objection,
no reversible error is presented.
In any event, the evidence of the marijuana, K2, the gun, and the gun magazine
was same transaction contextual evidence and was admissible on that basis. As the
Court of Criminal Appeals explains:
Evidence of another crime, wrong, or act also may be admissible as
same-transaction contextual evidence where “several crimes are
intermixed, or blended with one another, or connected so that they form
an indivisible criminal transaction, and full proof by testimony, ..., of
any one of them cannot be given without showing the others.” Wyatt v.
-14-
State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Rogers v.
State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). The jury is entitled
to know all relevant surrounding facts and circumstances of the charged
offense. Id. But, under Rule 404(b), same-transaction contextual
evidence is admissible only when the offense would make little or no
sense without also bringing in that evidence, and it is admissible “only
to the extent that it is necessary to the jury's understanding of the
offense.” Id. (quoting Pondexter v. State, 942 S.W.2d 577, 584
(Tex.Crim.App.1996)).
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
The jury was entitled to hear how appellant came to be in the back of the police
vehicle and why the officer decided to lift his cap to look underneath it. The trial
court did not abuse its discretion in admitting the complained-of testimony.
STATE'S COUNTERPOINT THREE, restated
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING STATE’S EXHIBIT
12B, THE JUDGMENT IN CAUSE NUMBER 14,045
STATE'S COUNTERPOINT FOUR, restated
APPELLANT HAS FAILED TO PRESERVE HIS TRUE COMPLAINT, THAT THE TRIAL
COURT ERRONEOUSLY ADMITTED THE JUDGMENT IN 13,997. IN ANY EVENT, THE
EVIDENCE WAS SUFFICIENT TO PROVE APPELLANT WAS
PREVIOUSLY CONVICTED OF A FELONY IN CAUSE NUMBER 13,997
In his third and fourth issues, appellant complains that the trial court erred in
admitting State’s exhibit 12B because – appellant claims – it was not properly
authenticated, and that State’s exhibit 12A was insufficient to prove that his
conviction in cause number 13,977 was for a non-state jail felony. The State
contends that the trial court did not abuse its discretion in admitting State’s exhibit
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12B and that State’s exhibit 12A was sufficient on its face to prove that appellant was
convicted in that case of at least a third degree felony.
Additional facts relevant to appellant’s Third and Fourth Issues
Jefferson County District Attorney’s Investigator Deborah Beavers testified as
a fingerprint expert at punishment to link appellant to records relating to his prior
convictions. (RR7: 20). Appellant’s rolled prints, State’s exhibit 11, were admitted
with “no objection.” (RR7: 24). Beavers testified that she compared all of the prints
on all of the judgments the State had on the day before her testimony to ensure that
the same person’s prints were on all of the documents. (RR7: 28). As the prosecutor
began to question Beavers regarding State’s exhibit 12, a packet of documents
relating to appellant’s conviction in cause number 13,997, defense counsel objected
to admission of any document except the judgment revoking probation. (RR7: 31-
32). The court stated it would permit the witness to make the identification from the
entirety of State’s exhibit 12 but that only the judgment would be admitted to the jury.
(RR7: 32). Beavers then testified that she was able to compare both the thumbprint
and index fingerprint of appellant on documents in State’s exhibit 12 to the known
prints in State’s exhibit 11, and from her comparison she testified that the fingerprints
in State’s exhibit 12 belonged to appellant. (RR7: 33-34). State’s exhibit 12A, the
judgment revoking probation in Hardin County cause number 13,997, was admitted
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over competing objections by appellant’s two defense attorneys, who appeared not
to be working toward the same objectives. (RR7: 35-36; RR8: 32-35). Beavers
testified that the records in State’s exhibit 12 reflected that appellant had originally
received deferred adjudication for seven years and then received a confinement
sentence of four years in the Texas Department of Criminal Justice. (RR7: 35-37).
Beavers next identified the prints in State’s exhibit 13, relating to Hardin
County cause number 15,158, as belonging to appellant, and the court admitted
State’s exhibit 13 over objection. (RR7: 38-44). After extensive testimony the court
also admitted State’s exhibit 14, the judgment in Hardin County cause number
14,201, a state jail felony conviction for delivery of a controlled substance. (RR7:
46-52, 89).
The State then had Beavers identify the judgment in State’s exhibit 12B, which
was the judgment revoking probation in a delivery of controlled substance case in
Hardin County cause number 14,045, which was entered on the same date as the
revocation judgment in cause number 13,997, State’s exhibit 12A. (RR7: 52-56).
Beavers affirmed that the two judgments cross-referenced each other and that each
provided that the two sentences would run concurrently. (RR7: 53). The court
admitted State’s exhibit 12B, noting that “I'm going to admit 12B. I know what that
is.” (RR7: 56).
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The faces of the two judgments reflect that the revocation judgments were
entered in 13,997 and 14,045 on the same date – January 29, 1998 – in the same
court, the 356th District Court of Hardin County, that each referenced the other cause
number and each provided the sentence would run concurrently with the other case.
Argument in response to appellant’s Third Issue
This Court has recently explained the law applicable to proof of a prior
conviction for enhancement purposes:
the State, to establish that appellant was, in fact, convicted of a prior
felony offense, had to prove beyond a reasonable doubt (1) the existence
of a prior conviction and (2) appellant's connection to the conviction.
Flowers [v. State, 220 S.W.3d 919, 922–23 (Tex. Crim. App. 2007)};
see also Tex. Code Crim. Proc. Ann. art. 37.07, § (3)(a)(1) (Vernon
Supp. 2014). Proof of a prior conviction does not require the production
of a certified judgment. Flowers, 220 S.W.3d at 922 (noting no "best
evidence" rule exists requiring proof of previous conviction with any
document, "much less any specific document."). In Flowers, the court
explained:
While evidence of a certified copy of a final judgment and
sentence may be a preferred and convenient means, the
State may prove both of these elements in a number of
different ways, including (1) the defendant's admission or
stipulation, (2) testimony by a person who was present
when the person was convicted of the specified crime and
can identify the defendant as that person, or (3)
documentary proof (such as a judgment) that contains
sufficient information to establish both the existence of a
prior conviction and the defendant's identity as the person
convicted.
220 S.W.3d at 921–22. . . .
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Regardless of the type of evidentiary puzzle pieces the State offers to
establish the existence of a prior conviction and its link to a specific
defendant, the trier of fact determines if these pieces fit together
sufficiently to complete the puzzle." Id. at 923. If the two necessary
elements "can be found beyond a reasonable doubt, then the various
pieces used to complete the puzzle are necessarily legally sufficient to
prove a prior conviction." Id.
Allen v. State, 2015 WL 5076288, at *12-13 (Tex. App. - Houston [1st Dist.]Aug. 27,
2015, no pet. hist.)(not designated for publication).
Appellant contends that the trial court abused its discretion in admitting State’s
exhibit 12B, the judgment in cause number 14,045. The State contends that the
exhibit was properly admitted. Although State’s exhibit 12B is not a certified copy,
an exact and certified copy of this same judgment in cause number 14,042 is
contained within the various pages of State’s exhibit 12, which exhibit otherwise
relates to cause number 13,997. (RR8: 28-31). It is unclear from this record whether
or why there were, in fact, two separate copies of the 14,042 judgment, but it is clear
that the trial court had the certified copy of this judgment before it as Beavers
testified to it, and that certified copy for an unknown reason ended up attached to
State’s exhibit 12, which was dissembled upon the request of defense counsel so that
only the final judgment and sentence in cause number 13,977 would be admitted
before the jury. To the extent that appellant now claims that the trial court abused its
discretion, the State contends that the trial court did not abuse its discretion in light
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of the presence before it of a certified copy of the judgment, and in any event,
appellant’s substantial rights were not violated merely because the exhibit sticker for
“12B” ended up on the uncertified copy of the judgment rather than the certified
copy.
Argument in response to appellant’s Fourth Issue
Appellant claims in his final issue that the evidence is insufficient to prove that
the conviction alleged in the first enhancement paragraph, Hardin County cause
number 13,997, was a felony conviction which could properly be used to enhance
appellant’s punishment under Tex. Penal Code section 12.42(d). Appellant contends
that this Court should review sufficiency of the evidence to support the categorization
of the prior conviction as a third degree felony using the standard set out in Garcia
v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012). The State contends, however, that
the question asserted on appeal by appellant – whether the conviction in 13,997 was
for a third degree felony or a state jail felony – was essentially a question of law for
the trial court to resolve when the conviction was offered in evidence, not a question
of fact for the jury to determine. The charge to the jury on punishment did not
attempt to instruct the jury regarding proper code section numbers or classification
of offenses as state jail felonies or third degree felonies. Rather, the charge presented
to the jury the central punishment issues of “(1) the existence of a prior conviction
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and (2) appellant's connection to the conviction.” Flowers v. State, 220 S.W.3d 919,
922–23 (Tex. Crim. App. 2007), and the jury decided those factual issues.
The State contends that the issue this appellant is actually asserting is whether
the trial court erred in permitting admission of the judgment to prove the prior
conviction and whether the trial court erred in submitting the paragraph based upon
this conviction to the jury. Appellant made no objection to the trial court regarding
the issues now asserted, and the State contends that appellant waived any error by
failing to make a timely and specific objection on the same basis now urged on
appeal. Tex. R. App. P. 33.1; see Thomas v. State, ___ S.W.3d ___, 2015 WL
4101164, at *5 (Tex. App. - Houston [1st Dist.] July 7, 2015, no pet.)(not yet
reported).
In any event, the trial court did not abuse its discretion in admitting the
judgment as evidence of the conviction or in submitting the enhancement paragraph
to the jury, because the evidence before the court was sufficient to establish that
appellant was convicted in cause number 13,997 for a third degree felony, possession
of cocaine in an amount of 1 gram or more, and any ambiguity or typographical error
on the face of the judgment was susceptible to correction by nunc pro tunc judgment
by the trial court – which was the convicting court for the prior conviction in cause
number 13,997 as well as the case currently on appeal. See, e.g., Gomez v. State, 459
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S.W.3d 651, 666 (Tex. App.- Tyler 2015, pet. ref’d). Any error in the statutory
section listed on the judgment did not affect the validity of the judgment, see Pruitt
v. State, 2015 WL 2090703, at *1 (Tex. App. - Texarkana May 5, 2015, no pet.)(not
designated for publication); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App. - Houston
[1st Dist] 2001, no pet.), nor did it render the conviction ineligible for use under
article 12.42(d). The plea papers, indictment, and other information regarding cause
number 13,997 was omitted from the exhibit as it was admitted, State’s exhibit 12A,
because the defense objected that it was not necessary and would be prejudicial to the
defense. Had the defense made its current complaint about errors in the judgment to
the trial court, the trial court could have corrected the judgment by entry of a nunc pro
tunc judgment or the State could have offered State’s exhibit 12 for record purposes
only to satisfy appellant’s concerns. Appellant should not now be permitted to recast
his complaint as one of sufficiency of the evidence and thereby avoid the
requirements of Tex. R. App. P. 33.1.
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CONCLUSION
WHEREFORE, PREMISES CONSIDERED, there being legal and competent
evidence sufficient to justify the verdict and no error appearing in the record of the
trial of this case, the State requests that this Honorable Court will affirm the judgment
of the Trial Court below.
Respectfully submitted, /s/Sue Korioth______
by Sue Korioth
David A. Sheffield Special Prosecutor for Hardin County
Hardin County District Attorney State Bar Card No. 11681975
P.O. Box 1409 P.O. Box 600103
Kountze, Texas 77625 Dallas, Texas 75360
(409) 246-5160 (214) 384-3864
suekorioth@aol.com
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Brief has been served on Joel Bennett,
Attorney for Appellant, 1100 Nasa Parkway, Suite 302, Houston, Texas 77058, by
depositing it in the United States Mail, Postage Prepaid, on this 12th day of September
2015, or by e-service, if available, to joel@searsandbennett.com.
/s/ Sue Korioth
Sue Korioth
Rule 9.4 Certificate of Compliance
Using the Wordperfect 7 word count utility, I have determined that this
document contains 5315 words, not including the "caption, identity of parties and
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counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix." TRAP 9.4(I).
/s/ Sue Korioth
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