Donald Wayne Lewis v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-15-00061-CR
________________________

DONALD WAYNE LEWIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court
Randall County, Texas
Trial Court No. 24,655-A; Honorable Dan Schaap, Presiding

November 22, 2016

MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, Donald Wayne Lewis, was charged by indictment with the felony

offense of burglary,1 enhanced by two prior felony convictions.2 During the course of

pretrial proceedings, various motions to suppress were filed. Those motions were
1
TEX. PENAL CODE ANN. §§ 30.02(a)(1), (a)(3) (West 2011). The indictment alleged Appellant
intentionally or knowingly entered a habitation and committed or attempted to commit theft. As such, the
offense was a second degree felony. Id. at § 30.02(c)(2).
2
As enhanced, the offense was punishable by confinement for any term of not more than 99
years or less than 25 years. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2016)
granted in part and denied in part. After waiving his right to a jury trial, and with consent

of the State, the case proceeded to trial before the bench. The trial court found

Appellant guilty, found the enhancement paragraphs to be true, and sentenced him to

forty-five years confinement. By his first three issues, Appellant challenges the trial

court’s rulings on his motions to suppress. Specifically, he contends the trial court erred

in overruling his motion to suppress the arrest warrant (issue one), his vehicle (issue

two), and the contents of his vehicle (issue three). By his fourth issue, Appellant

maintains the evidence is insufficient to support his conviction. We affirm.

BACKGROUND

In August 2013, the Randall County Sheriff’s Office was investigating several

residential burglaries. A victim of one of those burglaries was Gary Pastwa. Mr.

Pastwa’s residence had been burglarized on August 24th. According to his statement

to the police, he was returning home from an errand when he observed a red Suburban,

with front-end damage, parked behind his garage. Mr. Pastwa described a “very large

black man,” wearing a tank top, running to that vehicle, and then attempting to assault

him with the vehicle as he departed. Mr. Pastwa was able to provide Randall County

authorities with a description of the individual and the vehicle’s license tag number.

Ownership of the vehicle was traced to Appellant and his wife; however, Mr. Pastwa

was unable to identify Appellant in a photo lineup as the person who had burglarized his

residence and attempted to strike him with that vehicle.

On August 26th, based on Mr. Pastwa’s statement to the police, an arrest

warrant was issued for Appellant. A “blue warrant” was also issued based upon the

2
arrest warrant.3 The following day, Randall County authorities sent an advisory email to

the Amarillo Police Department. The email notified the department that an arrest

warrant and blue warrant for Appellant had been issued and it identified Appellant’s

1997 red Suburban as evidence in the Pastwa burglary and attempted aggravated

assault.

On August 28, 2013, sometime between 8:30 a.m. and 3:00 p.m., the residence

of Ramona Coffman was burglarized and various items were taken.4 Among the items

taken were pieces of jewelry, two jewelry boxes, a camera, a laptop, an iPad, an

undetermined amount of loose change, and two $50 bills. Later that same afternoon,

but before learning of the Coffman burglary, Amarillo Police Department officers

observed a vehicle matching the vehicle described in the advisory email.5 The officers

activated their patrol car emergency lights and pursued the vehicle until it pulled into a

private driveway located in Potter County. Appellant exited the vehicle and claimed to

know the occupants of the residence where he had stopped. The owner of that

property, however, was not familiar with Appellant or his vehicle and specifically

informed the police she did not want the vehicle to remain on her property. Appellant

was arrested based upon the existing arrest warrant and blue warrant.

Appellant requested that his vehicle be released to his father; however, because

it was considered to be evidence in the Pastwa burglary and attempted aggravated

assault, it was released to the Randall County Sheriff’s Office. The vehicle was
3
A “blue warrant” is a type of arrest warrant issued by the Texas Parole Board.
4
The Coffman burglary is the subject of this appeal.
5
The vehicle in question, a red 1997 Chevrolet Suburban, matched the make, model, color, and
license tag number of the vehicle identified by Mr. Pastwa.

3
subsequently towed from Potter County to Randall County. Although the Amarillo

Police Department never formally impounded or inventoried the vehicle, officers did

photograph the vehicle and conduct a cursory, non-invasive inspection.6

The next day, the Randall County Sheriff’s Office obtained a search warrant for

the vehicle. The vehicle was then searched and evidence from the Coffman burglary

was located. Specifically, the search lead to the recovery of pieces of jewelry, an iPad,

a Walmart coin voucher receipt for the exchange of $170.99, photographs of Ms.

Coffman’s niece and nephew, and a business card that had been torn.

Although Appellant did not contest the validity of the vehicle search warrant, he

did seek to suppress evidence found inside the vehicle on the basis that his arrest was

based upon an illegally issued arrest warrant and blue warrant. Specifically, Appellant

contended the affidavit in support of the arrest warrant omitted relevant evidence (i.e.,

the inability of Mr. Pastwa to identify Appellant in a photo lineup) and it contained

material contradictions and misrepresentations (regarding the description of the person

seen fleeing from the Pastwa burglary as compared to an actual description of

Appellant) which affected the validity of the arrest warrant. Appellant further contended

the blue warrant was equally defective because it was based upon the illegal arrest

warrant.

Following the conclusion of several suppression hearings, the trial court found

the arrest warrant and blue warrant to be defective. The court further found, however,

6
The APD officers did lean into the vehicle and determined that there was no incriminating
evidence in plain view. The officers did not probe the contents of the vehicle.

4
that the vehicle was properly seized because it was evidence of a crime committed in

Randall County. In his conclusions of law, the trial judge found as follows:

(1) the arrest warrant was based on insufficient probable cause;

(2) the blue warrant lacked a sufficient basis for its issuance because it was
procured based upon the illegal arrest warrant;

(3) the vehicle in question was properly stopped and seized based upon a
credible report that it had been used in and was evidence of a burglary in
Randall County;

(4) the transfer of the vehicle from Potter County to Randall County did not
violate Articles 18.10 and 14.03 of the Texas Code of Criminal Procedure;

(5) that if the transfer did violate Articles 18.10 and 14.03 of the Texas Code of
Criminal Procedure, such violation did not require the exclusion of the
vehicle or items found in the vehicle; and

(6) the reckless misrepresentation contained in the probable cause affidavit
used to obtain the arrest warrant does not require the exclusion of the
vehicle or items found in the vehicle authorized by the subsequently issued
search warrant.

ISSUES ONE, TWO, AND THREE

By his first three issues, Appellant contends the trial court erred by failing to

suppress evidence concerning his vehicle and items recovered therefrom because, if

the arrest warrant was bad, any evidence obtained as a result of that arrest was also

tainted. Appellant further contends that evidence was subject to suppression because it

was obtained in violation of article 38.23 of the Texas Code of Criminal Procedure

because the vehicle was removed from Potter County without a court order as required

by article 18.10 of that same code.

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 APPLICABLE LAW

The trial court’s ruling on a motion to suppress is reviewed under a bifurcated

standard. Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016). Where, as here,

the trial court enters findings of fact after denying a motion to suppress, we must

determine whether the evidence, when viewed in the light most favorable to the trial

court’s ruling, supports those findings. Keehn v. State, 279 S.W.3d 330, 334 (Tex.

Crim. App. 2009). If the findings are supported by the record, we will afford almost total

deference to the trial court’s determination of historical facts when they are based on an

evaluation of credibility and demeanor. Id. We give the same amount of deference to

mixed questions of law and fact if resolution of those ultimate questions turns on an

evaluation of credibility and demeanor. Id. But when resolution of mixed questions of

law and fact do not depend on an evaluation of credibility and demeanor, we conduct a

de novo review. Id. The trial court is the sole trier of fact of witnesses’ credibility and

the weight to be given their testimony. Valtierra v. State, 320 S.W.3d 442, 447 (Tex.

Crim. App. 2010). We will uphold the trial court’s ruling if the record reasonably

supports it and it is correct on any theory of law applicable to the case. Id. at 448.

ANALYSIS

The trial court conducted a hearing pursuant to Franks v. Delaware, 438 U.S.

154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).7 The trial court found that a reckless

7
In Franks, the Court held that “where the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the alleged false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at
155-56. If the defendant establishes his burden by a preponderance of the evidence and the remaining
content of the affidavit is insufficient to establish probable cause, the search warrant must be voided and
the evidence of the search excluded. See id. See also Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim.
App. 2007).

6
misrepresentation of material facts was made to the magistrate regarding the

identification provided by Mr. Pastwa resulting in the sworn complaint being insufficient

to establish probable cause to support the issuance of the arrest warrant or the blue

warrant. However, in its Conclusions of Law, the trial court determined that the reckless

misrepresentation in the last sentence of the sworn complaint did not require

suppression of either Appellant’s vehicle or the items subsequently discovered inside.

The trial court further concluded that if articles 18.10 or 14.03 of the Texas Code of

Criminal Procedure were violated, those violations did not require exclusion under

article 38.23 of the Code of either the vehicle or the items subsequently discovered in it.

Alleging the trial court disregarded Franks, Appellant argues that but for the

invalid warrants, he would not have been arrested and his vehicle would not have been

seized and searched. He concludes the trial court should have suppressed all the

evidence found in his vehicle. Although the State concedes in its brief that the arrest

warrant and blue warrant were invalid, it asserts several legal theories under which the

officers acted lawfully. The State argues the officers had probable cause to believe

Appellant’s vehicle was evidence in a crime via independent evidence (the email and

crime analysis bulletin regarding the Pastwa burglary) that dispensed with the necessity

of a valid warrant. The State also argues the officers had authority to arrest Appellant

without a warrant pursuant to article 14.03(a)(1) of the Code of Criminal Procedure

because an officer may conduct a warrantless arrest of “persons found in suspicious

places and under circumstances which reasonably show that such persons have been

guilty of some felony. . . .” TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1) (West Supp.

2016). Finally, the State maintains the officers had authority under the plain view

7
doctrine and the automobile exception to a warrant to seize the vehicle and its contents.

We need only find one correct theory of law applicable to the case to uphold the trial

court’s ruling. Keehn, 279 S.W.3d at 334.

The Fourth Amendment to the United States Constitution and Article 1, Section 9

of the Texas Constitution protect against unreasonable searches and seizures. U.S.

CONST. amend IV.; TEX. CONST. art. I, § 9. An investigative detention is reasonable, and

thus constitutional, if (1) the officer's action was justified at the detention's inception, and

(2) the detention was reasonably related in scope to the circumstances that justified the

interference in the first place. Terry v. Ohio, 392 U. S. 1, 19-20, 88 S. Ct. 1868, 20 L.

Ed. 2d 889 (1968). For the officer's initial action to be justified under the first Terry

prong, we ask whether there existed specific, articulable facts that, taken together with

rational inferences from those facts, reasonably warranted that intrusion. Id. at 21.

Specifically, the officer must have a reasonable suspicion that some activity out of the

ordinary is occurring or has occurred, some suggestion to connect the detainee with the

unusual activity, and some indication that the unusual activity is related to a crime. See

Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).

In the underlying case, the officers had independent information that a 1997 red

Suburban with a specific license plate number was involved in a burglary and attempted

aggravated assault. They also were aware that Appellant, the owner of that vehicle,

was a suspect in those offenses. The officers who stopped Appellant were on patrol

when they observed the vehicle described in the email and crime analysis bulletin.

Upon confirming the license plate number, the officers activated the emergency lights of

their patrol car. Appellant eventually stopped at a residence in Potter County. At that

8
time, the officers had specific, articulable facts that the vehicle was evidence in the

Pastwa burglary and attempted aggravated assault. Thus, the officers had reasonable

suspicion to initiate an investigatory detention.

Once detained, the officers had authority to seize the vehicle under the plain view

doctrine. The plain view doctrine permits an officer to seize contraband if he has a right

to be where the contraband is and it is immediately apparent the seized item constitutes

evidence, i.e., that there is probable cause to associate the item with criminal activity.

Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996). Probable cause exists

where the known facts and circumstances are sufficient to warrant a man of reasonable

prudence in the belief that contraband or evidence of a crime will be found. Wiede v.

State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007).

The officers were in a place where they were allowed to be, to wit: on patrol on a

public road. They had specific and articulable, independent information establishing

probable cause to believe that Appellant’s vehicle constituted evidence in the Pastwa

burglary and attempted aggravated assault. Thus, they acted lawfully in stopping the

vehicle and seizing that evidence. Martinez v. State, 17 S.W.3d 677, 684 (Tex. Crim.

App. 2000).

ARTICLE 18.10

Article 18.10 of the Texas Code of Criminal Procedure provides in pertinent part

that property seized pursuant to a search warrant “may not be removed from the county

in which it was seized without an order approving the removal, issued by a magistrate in

the county in which the warrant was issued.” See TEX. CODE CRIM. PROC. ANN. art. 1810

9
(West 2015). As a subsidiary issue to his suppression issues, Appellant argues that the

removal of his vehicle from Potter County and its transfer to Randall County, without a

court order approving the removal as required by article 18.10 of the Texas Code of

Criminal Procedure, compelled exclusion of the evidence (the vehicle and its contents)

under article 38.23 of the same Code.

Here, article 18.10 was not implicated because the vehicle was not seized

pursuant to a search warrant. It was seized as evidence of a crime and the subsequent

search warrant resulting in the discovery of its contents is not being contested.

Furthermore, even assuming the transportation of the vehicle from Potter County to

Randall County somehow violated article 18.10, the Texas Court of Criminal Appeals

has found that article 38.23 does not apply to violations of that article. Martinez, 17

S.W.3d at 686. In Martinez, the Court distinguished article 38.23’s requirement to

exclude evidence obtained in violation of the law with article 18.10’s requirement of

removal of property from a county after the property has already been seized. Id.

(Emphasis in original). The fact that officers may move an item of evidence to an

unauthorized location after it has been legally obtained does not vitiate the status of

such evidence as having been legally obtained. Id. Appellant further posits that

Martinez does not apply because his vehicle was not lawfully seized. Having concluded

that Appellant’s vehicle was lawfully seized, we find this argument to be without merit.

Appellant’s final challenge regarding the trial court’s ruling on his suppression

motions is the lack of proper procedure in failing to impound his vehicle and in failing to

conduct an inventory search. He asserts that Amarillo police officers “searched” his

vehicle by “leaning in” and taking pictures while waiting for the Randall County Sheriff’s

10
Office to take custody of the vehicle. He maintains that lack of proper procedure

required suppression of all evidence inside the Suburban. Again, we disagree.

When Appellant was stopped, he exited the vehicle and left one of the doors

open. An officer “leaned into” the vehicle and took photographs, but no invasive search

or probing was conducted. The vehicle was then released to the Randall County

Sheriff’s Office. No incriminating evidence of the Coffman burglary was found until after

Randall County obtained a search warrant.8 While this court does not condone failure

to follow proper procedure, the Texas Court of Criminal Appeals has held that

movement of evidence from one location to another after it has been legally obtained

does not change the evidentiary status of that evidence. Martinez, 17 S.W.3d at 686.

Having previously concluded the Suburban was lawfully seized, its movement from

Potter County to Randall County without strict adherence to article 18.10 of the Code of

Criminal Procedure did not render the vehicle or its contents inadmissible. See Barnes

v. State, 424 S.W.3d 218, 226 (Tex. App.—Amarillo 2014, no pet.) (noting that the

correctness of the trial court’s ruling on a motion to suppress does not rest on a proper

impoundment of a vehicle). We conclude the trial court did not abuse its discretion in

denying Appellant’s various motions to suppress. Issues one, two, and three are

overruled.

8
Appellant specifically announced to the trial court, through his counsel, that he was not
challenging the search warrant. Defense counsel stated, “the search warrant is irrelevant because it is
obtained after the illegality occurred.” He continued, “I’m not arguing that the search warrant is improper.”
Consequently, any complaints regarding the validity of the search warrant are waived. TEX. R. APP. P.
33.1(a)(1)(A); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

11
 ISSUE FOUR

By his fourth issue, Appellant contends the evidence is insufficient to support his

conviction. The only standard that a reviewing court should apply in determining

whether the evidence is sufficient to support each element of a criminal offense the

State is required to prove beyond a reasonable doubt is the standard set forth in

Jackson v. Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010). Under that standard, this court considers all

the evidence in the light most favorable to the verdict and determines whether, based

on that evidence and reasonable inferences to be drawn therefrom, a rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 318-19.

A person commits burglary when, without the effective consent of the owner, he

enters a habitation with intent to commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1)

(West 2011). When a defendant is in possession of recently stolen property and fails to

provide a reasonable explanation of that possession, the trier of fact may draw an

inference of guilt as to the theft of that property. Poncio v. State, 185 S.W.3d 904, 905

(Tex. Crim. App. 2006). If, however, a defendant offers an explanation for his

possession of recently stolen property, the record must demonstrate that the

defendant’s explanation at the time of his possession is either false or unreasonable

before the evidence will support his conviction. Jackson v. State, 12 S.W.3d 836, 839

(Tex. App.—Waco 2000, pet. ref’d). Whether an explanation is true is a question for the

trier of fact. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—Texarkana 2001, no pet.).

12
 Here, there was no direct evidence that Appellant burglarized the Coffman

residence. However, circumstantial evidence is as equally probative as direct evidence

in establishing guilt. Lashley v. State, 401 S.W.3d 738, 747 (Tex. App.—Houston [14th

Dist.] 2013, no pet.). In that regard, Ms. Coffman testified that when her son returned

home from school on the day of the burglary, he found it had been ransacked and called

her at work. She then called 911. She immediately discovered certain items were

missing and, in the following days, discovered other items were also missing. She

testified she immediately noticed her iPad, laptop, two jewelry boxes, pieces of jewelry,

two $50 bills, and containers of change were missing. She further testified Appellant did

not have permission to enter her home.

After Appellant was arrested and items were discovered in his vehicle, the

authorities identified Ms. Coffman from her iPad email address. Found with the iPad

were photos that she identified as being of her niece and nephew. The State also

introduced a Walmart receipt from a coin voucher for $170.99 that was found in

Appellant’s vehicle. The receipt was dated the same date as the burglary and was time-

stamped 13:46:55. Several video clips from Walmart were also admitted into evidence,

showing Appellant and his vehicle at Walmart during the time the change was converted

for cash.

While Appellant was in custody, he was interviewed by a detective. The

recording of that interview was played for the trial court. Appellant claimed to have

purchased Ms. Coffman’s iPad from a person named Johnny at a convenience store but

was unable to provide any information regarding Johnny for officers to confirm his

explanation. Authorities investigated the location where Appellant allegedly purchased

13
the iPad but found no evidence to support his explanation for its possession.

Additionally, as to the remaining items taken from the Coffman residence, Appellant did

not offer any explanation for his recent possession of those items.

Under these facts, the trier of fact was presented with sufficient evidence to

permit it to infer that Appellant’s possession of items taken from Ms. Coffman’s home

was circumstantial evidence of his guilt. Appellant’s fourth issue is overruled.

REFORMATION OF JUDGMENT

In reviewing the judgment, it has come to this court's attention that it contains

several errors. Under the summary portion of the judgment under Plea to Offense, it

recites that Appellant entered a plea of “GUILTY”; whereas the reporter’s record reflects

that Appellant entered a plea of “not guilty.” Additionally, the record reflects that

Appellant pleaded “true” to two enhancements whereas the summary portion of the

judgment provides “N/A” under “Plea to 2nd Enhancement/Habitual Paragraph.”

This court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. TEX. R. APP.

P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Appellate

courts have the power to reform whatever the trial court could have corrected by a

judgment nunc pro tunc where the evidence necessary to correct the judgment appears

in the record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.

ref'd). The power to reform a judgment is “not dependent upon the request of any party,

nor does it turn on the question of whether a party has or has not objected in the trial

court.” Id. at 529-30.

14
 CONCLUSION

We reform the judgment to reflect “Not Guilty” under Plea to Offense and to

provide “True” under “Plea to 2nd Enhancement/Habitual Paragraph.” As reformed, the

trial court’s judgment is affirmed.

Patrick A. Pirtle
Justice

Do not publish.

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