ACCEPTED
06-15-00095-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/27/2015 4:29:33 PM
DEBBIE AUTREY
CLERK
No. 06-15-00095-CR
FILED IN
IN THE 6th COURT OF APPEALS
TEXARKANA, TEXAS
7/27/2015 4:29:33 PM
COURT OF APPEALS DEBBIE AUTREY
Clerk
FOR THE SIXTH
JUDICIAL DISTRICT OF TEXAS
TEXARKANA
JAMES ARTHUR BAXLEY, Appellant
v.
THE STATE OF TEXAS, Appellee
Appealed in Cause No. 1424312
8th Judicial District Court of Hopkins County, Texas
APPELLEE’S BRIEF
By:/s/ Matthew H. Harris
Matthew H. Harris
Assistant District Attorney
State Bar No 24083142
P.O. Box 882
Sulphur Springs, Texas 75483
(903) 885-0641
1
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
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
ISSUES PRESENTED 5
STANDARD OF REVIEW 5
SUMMARY OF THE ARGUMENT 5
I. The trial court did not err in crediting the testimony of Mark Estes 6
II. The pretext doctrine is no longer valid law 6
III. Appellant failed to preserve error 8
PRAYER FOR RELIEF 8
CERTIFICATE OF SERVICE 9
CERTIFICATE OF WORD COUNT 9
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INDEX OF AUTHORITIES
Cases
Archie v. State, 799 S.W.2d 340, 344 (Tex. App.—Houston [14th Dist.] 1990) .....7
Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991) ......................................7
Stewart v. State, 611 S.W.2d 434, 436 (Tex. Crim. App. 1981) ...............................8
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) ..........................5
U.S v. Lefkowitz, 285 U.S. 452, 467 (1932) .............................................................7
Rules
Texas Rule of Appellate Procedure 9.4(i)(3) .............................................................9
Texas Rule of Appellate Procedure 33.1 ...................................................................9
Texas Rule of Appellate Procedure 38(a)…………………………………………. 2
4
ISSUES PRESENTED
Appellant argues that: (1) the trial court should not have credited the
testimony of Sergeant Mark Estes, and (2) law enforcement should not be allowed
to evade the warrant requirement through “creativity”. Despite a lack of specificity,
Appellant appears to refer to search warrants because arrest warrants existed in
this case. Appellant argues that the trial court should have granted Appellant’s
motion to suppress, and that failing to do so was an abuse of discretion.
STANDARD OF REVIEW
Upon reviewing the trial court’s denial of a motion to suppress, the standard
of review is abuse of discretion with regard to the trial court’s factual findings. The
standard of review relating to the trial court’s application of law to fact is de novo.
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
SUMMARY OF THE ARGUMENT
Appellant was arrested pursuant to valid warrants which were relied upon by
Sergeant Mark Estes in good faith, and were even admitted to evidence in the case.
The trial court did not abuse its discretion in choosing to believe the testimony of
Mark Estes. It does not “strain the credulity of a reasonable person” to believe the
testimony of Sergeant Estes, and there is no evidence that he used Appellant’s
valid arrest warrants as a pretext to “go fishing”. The pretext doctrine, which is
5
apparently relied upon by Appellant, does not exist. Finally, even if the pretext
doctrine did exist, Appellant did not preserve error.
I. The trial court did not err in crediting the testimony of Sergeant
Mark Estes during hearing on Appellant’s motion to suppress.
Appellant argues that the trial court erred in crediting the testimony of
Sergeant Estes. Evidently the crux of Appellant’s argument is that the trial court
abused its discretion by not finding that Sergeant Estes lied when he said that he
had seen Appellant’s name on a warrant list, drove by his house, and arrested
Appellant after confirming the warrants through dispatch. To believe the sworn
testimony of a peace officer with 14 years’ experience, according to Appellant,
constitutes an abuse of discretion. Even if that were true, Appellant cites no
authority for this proposition or even the legal basis for his argument – he simply
states that the motion to suppress should have been granted because Sergeant Estes
was not being honest about his reasons for being at Appellant’s home.
II. The pretext doctrine is no longer valid law
Appellant proposes that Sergeant Estes “went fishing” because he doesn’t
normally serve warrants. Appellant insinuates that Sergeant Estes somehow
behaved illegally or improperly and that the motion to suppress should have been
granted because he used the municipal warrants as pretext to arrest and search
6
Appellant for evidence of another crime. The fallacy of this argument, however, is
that the “pretext doctrine” is no longer valid law. It formerly existed to prohibit
officers from using an arrest for one crime as pretext to search for evidence of
another. Archie v. State, 799 S.W.2d 340, 344 (Tex. App.—Houston [14th Dist.]
1990), aff'd sub nom. Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991)
(citing U.S v. Lefkowitz, 285 U.S. 452, 467 (1932)). Under the old line of cases if
pretext formed the basis for a warrantless search, then any resulting evidence
seized may have been rendered inadmissible. Id. In practical application, courts
found it nearly impossible to determine the subjective intent of officers when
making stops and arrests, so the pretext doctrine was explicitly abandoned in
Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). As the law currently
stands, an officer’s subjective intent in making an arrest is irrelevant as long as
there exists an objectively valid, legal basis for the arrest. Id. Here, the arrest was
made pursuant to arrest warrants which were admitted as evidence at trial by the
trial counsel for Appellant (Vol. 5; p. 203; l. 2-23).
Appellant further complains that law enforcement should not be allowed to
“evade the general requirement that warrants be used”, presumably referring to
search warrants, because the arrest was simply pretext for Sergeant Estes to search
Appellant for controlled substances. The law is quite clear that a search incident to
a lawful arrest requires no warrant if the search is restricted to the arrestee and
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those objects immediately associated with the arrestee. Stewart v. State, 611
S.W.2d 434, 436 (Tex. Crim. App. 1981). Here, Sergeant Estes arrested Appellant
pursuant to a valid arrest warrant, and then proceeded to search him incident to that
arrest. The contraband was located on Appellant’s person. There is no doubt that a
search warrant was not required.
III. Even if the pretext doctrine existed, Appellant failed to preserve
error.
Appellant’s trial counsel, Cynthia Braddy, raised a single suppression issue
on the morning of trial - that there may be an important legal distinction between
capias pro fines and arrest warrants (Vol. 5; p. 173, l. 8 – p. 174., l. 1) - but Ms.
Braddy never once mentioned that the search of Appellant and seizure of the
controlled substance should be suppressed because the warranted arrest was pretext
to search for evidence of another crime. Despite the fact that it appears as though
Appellant is attempting to raise that very issue now, it was never raised in the trial
court. The issue was not raised in the motion to suppress, and it has not been
preserved for appellate review. Tex. R. App. P. 33.1.
PRAYER FOR RELIEF
The State requests that this Court AFFIRM Appellant’s conviction by the
jury.
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By:/s/ Matthew H. Harris
Matthew H. Harris
Assistant District Attorney
State Bar No 24083142
P.O. Box 882
Sulphur Springs, Texas 75483
(903) 885-0641
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to counsel for Appellant, Wade Forsman, on this the 27th
day of July, 2015.
By:/s/ Matthew H. Harris
Matthew H. Harris
Assistant District Attorney
CERTIFICATE OF WORD COUNT
Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,342 words.
By:/s/ Matthew H. Harris
Matthew H. Harris
Assistant District Attorney
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James Arthur Baxley v. State
Combined Opinion