Tracy Ray Hass v. State, 12-14-00189-CR

Tracy Ray Hass v. State

12-14-00189-CR

| Tex. App. | Mar 4, 2015

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*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 3/4/2015 2:57:12 PM CATHY S. LUSK Clerk *1 ACCEPTED 12-14-00189-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 3/4/2015 2:57:12 PM CATHY LUSK CLERK

NO. 12-14-00189-CR

IN THE

COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS

TRACY RAY HASS, Appellant v.

THE STATE OF TEXAS, Appellee ON APPEAL IN CAUSE NUMBER 061728

FROM THE 59TH DISTRICT COURT OF GRAYSON COUNTY, TEXAS HON. RAYBURN NALL, presiding APPELLEE'S BRIEF

KARLA BAUGH HACKETT ASSISTANT CRIMINAL DISTRICT ATTORNEY GRAYSON COUNTY, TEXAS 200 S. CROCKETT ST.

SHERMAN, TX 75090

903/813-4361

903/892-9933 (fax) baughk@co.grayson.tx.us (email) TEXAS BAR NO. 01923400 ATTORNEY FOR THE STATE ORAL ARGUMENT NOT REQUESTED *2 LIST OF PARTIES

APPELLANT:

TRACY RAY HASS

ATTORNEY FOR APPELLANT: AT TRIAL & ON APPEAL: DAVID ZEDLER

215 N. TRAVIS, SHERMAN, TX 75090 BAR NO. 0095737

903/868-8989

FAX: 903/786-0007

APPELLEE:

THE STATE OF TEXAS ATTORNEY FOR THE STATE: ON APPEAL ELECTED OFFICIAL AT TRIAL KARLA BAUGH JOSEPH D. BROWN BRITTON BROOKS HACKETT BAR NO. 00793413 BAR NO. 24049427 BAR NO. 01923400 CDA HOANG HUNT

ASST. CDA GRAYSON BAR NO. 24027081 GRAYSON COUNTY, TEXAS ASST. CDA COUNTY, TEXAS 200 S. CROCKETT GRAYSON

200 S. CROCKETT SUITE 100 COUNTY, TEXAS

SUITE 100 SHERMAN, TX 200 S. CROCKETT SHERMAN, TX 75090 SUITE 100 75090 (903) 813-4361 SHERMAN, TX 903/ 813-4361 903/ 892-9933 (FAX) 75090 903/ 892-9933 (FAX) 903/ 813-4361

903/ 892-9933 (FAX) STATE'S BRIEF 12-14-00189-CR - PAGE ii *3 TABLE OF CONTENTS LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

RESPONSE POINT 1: THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT’S MOTION TO SUPPRESS EVIDENCE BECAUSE THE APPELLANT’S ARREST WAS NOT ILLEGAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. HEARING ON MOTION TO SUPPRESS . . . . . . . . . . . . . . 8 B. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. THE OFFICER HAD PROBABLE CAUSE TO ARREST THE APPELLANT AND SEARCH HIS VEHICLE, THEREFORE, THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION TO SUPPRESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 RESPONSE POINT 2: THE TRIAL COURT DID NOT ERR IN ALLOWING EVIDENCE TO REBUT TESTIMONY REGARDING THE APPELLANT’S LACK OF KNOWLEDGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. DEFENSIVE THEORY AT TRIAL . . . . . . . . . . . . . . . . . . . 16 B. STANDARD OF REVIEW FOR ADMISSIBILITY OF STATE'S BRIEF 12-14-00189-CR - PAGE iii *4 PRIOR OFFENSES TO PROVE INTENT OR REBUT DEFENSIVE THEORY . . . . . . . . . . . . . . . . . . . 19 C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BECAUSE THE APPELLANT’S PRIORS WERE PROPERLY ADMITTED FOR THE PURPOSE OF REBUTTING THE DEFENSIVE THEOR THAT THE APPELLANT HAD NO INTENT TO POSSESS THE STOLEN AUTO PARTS. . . . . . . . . . . . . . . . . . . . . . . . 20 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

INDEX OF AUTHORITIES Federal Cases

Miller v. Fenton , 474 U.S. 104, 106 S. Ct. 445, 88

L. Ed. 2d 405 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Ornelas v. United States , 517 U.S. 690, 116 S. Ct. 1657, 134

L. Ed. 2d 911 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 State Cases

Allridge v. State , 850 S.W.2d 471 (Tex. Crim. App. 1991) . . . . . . . . . . . . 13

Dennis v. State , 178 S.W.3d 172 (Tex. App.—Houston [1 st Dist.]

2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Garcia v. State , 15 S.W.3d 533 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . 13

Guzman v. State , 955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . 14

Mattias v. State , 731 S.W.2d 936 (Tex. Crim. App. 1987) . . . . . . . . . . . . 13

Meek v. State , 790 S.W.2d 618 (Tex. Crim. App. 1990) . . . . . . . . . . . . . 13

Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. App. 1990) . . . . . . . . 20

Moses v. State , 105 S.W.3d 622 (Tex. Crim. App. 2003) . . . . . . . . . . 21, 22

Nobles v. State , 843 S.W.2d 503 (Tex. Crim. App. 1992) . . . . . . . . . . . . 21

Rankin v. State , 974 S.W.2d 707(Tex. Crim. App. 1996) . . . . . . . . . . . . . 20

Romero v. State , 800 S.W.2d 539 (Tex. Crim. App. 1990) . . . . . . . . 13, 20

Shipman v. State , 604 S.W.2d 182 (Tex. Crim. App. 1980) . . . . . . . . . . . 21

Spann v. State , 448 S.W.2d 128 (Tex. Crim. App. 1969) . . . . . . . . . . . . . 20

State v. Ballard , 987 S.W.2d 889 (Tex. Crim. App. 1999) . . . . . . . . . . . . 12

State v. Fecci , 9 S.W.3d 212 (Tex. App.—San Antonio 1999, no pet.) . . 13

Villarreal v. State , 935 S.W.2d 134 (Tex. Crim. App. 1996) . . . . . . . . . . . 13

Wheeler v. State , 67 S.W.3d 879 (Tex. Crim. App. 2002) . . . . . . . . . . . . 21

Wolfberg v. State , 73 S.W.3d 441 (Tex. App.—Houston [1 st Dist.]

2002, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 State Court Rules

Tex. R. Evid. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

NO. 12-14-00189-CR

IN THE

COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS

TRACY RAY HASS, Appellant v.

THE STATE OF TEXAS, Appellee TO THE HONORABLE COURT OF APPEALS:

COMES NOW THE STATE OF TEXAS, hereinafter referred to as the State, and submits this brief pursuant to the Texas Rules of Appellate

Procedure and would show through her attorney the following:

ISSUES PRESENTED RESPONSE POINT 1:

THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT’S MOTION TO SUPPRESS EVIDENCE BECAUSE THE APPELLANT’S ARREST WAS NOT ILLEGAL.

RESPONSE POINT 2 :

*7 THE TRIAL COURT DID NOT ERR IN ALLOWING EVIDENCE TO REBUT

TESTIMONY REGARDING THE APPELLANT’S LACK OF KNOWLEDGE.

SUMMARY OF ARGUMENT In his first ground, the appellant alleges that the appellant’s arrest by the Grayson County Sheriff’s Office was illegal. Specifically, the appellant

alleges that there was insufficient evidence at the time of the arrest to prove

that the appellant had committed the offense of theft. At the hearing on

the motion to suppress, the only witness who testified was Deputy Bowling.

The Court was free to believe all, none or any part of the deputy’s

testimony.

Deputy Bowling was dispatched to respond to a complaint by a neighbor of a couple of vehicles on property at night where there was no

residence at 2:13 in the morning. Once at that location, Deputy Bowling

was unable to locate the vehicles described by the neighbor, but did notice

a damaged gate where someone had forced the gate open. Multiple

inoperable vehicles were parked on the property where the gate had been

forced open which, based on Deputy Bowling’s training and experience,

contained car parts that are a property often stolen. Approximately three

hours later, he did locate a vehicle approximately 15 yards from the

damaged gate loaded heavily with some unknown item or items and stuck

in a ditch.

Deputy Bowling observed the appellant walking around the vehicle which had the trunk open. As soon as the deputy approached in his marked

police car, the appellant immediately closed the trunk, appearing to be

trying to conceal something. The appellant appeared very nervous when

approached by the deputy and was sweating profusely despite the cool

night air. The appellant was uneasy in the deputy’s presence, unable to

stand in one place while the deputy questioned him. When questioned, the

appellant told Deputy Bowling that he was coming from a friends house

known to him only as “Elwood,” pointing to the east about three driveways

from where his car was stranded, then stated that he was going to Trenton,

to the east. This seemed odd because his car was facing east, but

stranded west of the residence where he claimed to have been visiting.

Deputy Bowling also observed something heavy in the backseat of the vehicle concealed by a sheet or shower curtain, consistent with large car

parts. When asked what was being concealed, the appellant told Deputy

Bowling that it was auto parts.

Based on the accessibility of the vehicles parked on the property with *9 the broken gate , the proximately to the broken gate, the appellant’s

demeanor, the time of night, the appellant’s reactions and the items being

auto parts, the possession of which were only vaguely explained, the officer

had probable cause to believe that the appellant had committed theft and

was in possession of that stolen property. The trial court did not abuse its

discretion in finding probable cause to arrest the appellant and search the

vehicle and denying the motion to suppress.

In his second ground, the appellant alleges that the trial court erred in allowing character evidence to be admitted to rebut the appellant’s claim

that he did not the items in the vehicle were stolen. The defensive theory

that appellant lacked the intent to commit the offense of theft was

introduced into the case by the appellant when Colene Williams attempted

to assume sole responsibility for the purchase of the stolen auto parts, and

was subject, therefore, to rebuttal by the State. Specifically, Ms. William’s

testimony attempted to prove that she owned the car, she purchased the

auto parts, she got the car stuck in a ditch, and the appellant did not know

anything about anything.

The trial court properly instructed the jury to only use the appellant’s prior criminal history to determine the appellant’s intent. The extraneous

evidence had probative value beyond character conformity. The extraneous

offense evidence admitted to rebut a the defensive theory of lack of intent

was similar to the charged offense. The fact that the appellant had

committed and been convicted of several burglaries and a theft proved he

was much more knowledgeable than the average person about the nature

of stolen property. Certainly, he was too knowledgeable to think that

thousand’s of dollars of stolen property just appeared in his car – or his ex-

girlfriend’s car as Ms. Williams claimed. Based on his prior burglaries and

thefts, the appellant would have known that auto parts, especially those

concealed under a sheet or shower curtain, in a vehicle parked next to

multiple parked vehicles, on property where the gate had been forced open,

were suspicious.

The appellant made no argument at trial that the probative value was outweighed by any prejudicial effect. The jury was strictly instructed to only

consider the extraneous offenses if they believed the appellant committed

those offenses beyond a reasonable doubt and only to determine the

appellant’s intent in possessing the stolen auto parts. As such, the trial

court’s decision to allow the State to use the appellant’s extraneous

offenses for rebuttal purposes was not an abuse of discretion under Rule

404(b).

ARGUMENT

RESPONSE POINT 1:

THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT’S MOTION TO SUPPRESS EVIDENCE BECAUSE THE APPELLANT’S ARREST WAS NOT ILLEGAL.

In his first ground, the appellant alleges that the appellant’s arrest by the Grayson County Sheriff’s Office was illegal. Specifically, the appellant

alleges that there was insufficient evidence at the time of the arrest to prove

that the appellant had committed the offense of theft.

A. HEARING ON MOTION TO SUPPRESS Deputy Donald Bowling, having been a certified peace officer for over 13 years, had investigated and made arrests on multiple theft cases. (RR

vol. 2, pp. 4-5) On January 16, 2012, Deputy Bowling was dispatched to

respond to a complaint of a couple of vehicles on property at night where no

residence existed. (RR vol. 2, p. 6) The complaint call was from a neighbor

in that area. (RR vol. 2, p. 7) It was 2:13 in the morning. (RR vol. 2, p. 7)

Deputy Bowling proceeded to that location and was unable to locate the vehicles described by the neighbor. (RR vol. 2, p. 9) Upon checking

the property, Deputy Bowling noticed a damaged gate where someone had

forced the gate open. (RR vol. 2, pp. 7-8) Multiple inoperable vehicles were

parked on the property where the gate had been forced open. (RR vol. 2,

pp. 8-9) Based on Deputy Bowling’s training and experience, car parts are

a property often stolen. (RR vol. 2, p. 9)

Deputy Bowling, unable to locate the vehicles described by the neighbor, left the property. (RR vol. 2, p. 9) The deputy returned to that

location approximately three hours later. (RR vol. 2, p. 9) This time he did

locate a vehicle approximately 15 yards from the damaged gate. (RR vol.

2, p. 9) A passenger vehicle on the side of the roadway loaded heavily with

some unknown item or items appeared to be stuck in a ditch. (RR vol. 2,

pp. 9-10) Deputy Bowling observed the appellant walking around the vehicle

which had the trunk open. (RR vol. 2, pp. 10-12) As soon as the deputy

approached in his marked police car, the appellant immediately closed the

trunk. (RR vol. 2, p. 11) Deputy Bowling was immediately suspicious as

the action by the appellant appeared to be trying to conceal something.

(RR vol. 2, pp. 11-12)

The appellant appeared very nervous when approached by the deputy. (RR vol. 2, p. 12) The temperature was cool, but the appellant was

sweating profusely. (RR vol. 2, p. 12) The appellant was uneasy in the

deputy’s presence, unable to stand in one place while the deputy

questioned him. (RR vol. 2, pp. 12-13)

Deputy Bowling asked the appellant why he was there, where he was going to and where he had come from. (RR vol. 2, p. 13) The appellant

told Deputy Bowling that he was coming from a friends house known to him

only as “Elwood,” pointing to the east about three driveways from where his

car was stranded. (RR vol. 2, p. 13) The appellant also stated that he was

going to Trenton, to the east. This seemed odd because his car was facing

east, but stranded west of the residence where he claimed to have been

visiting. (RR vol. 2, pp. 13-14) Deputy Bowling also observed something

heavy in the backseat of the vehicle concealed by a sheet or shower

curtain. (RR vol. 2, p. 14) When asked what was being concealed, the

appellant told Deputy Bowling that it was auto parts. (RR vol. 2, p. 15)

Deputy Bowling believed those parts to have been stolen from the many

vehicles parked on the property with the broken gate based on the

proximately to the broken gate, the appellant’s demeanor, the time of night,

the appellant’s reactions and the items being auto parts. (RR vol. 2, p. 15)

The appellant told the deputy that he had purchased the auto parts from “a

friend” but was vague and unable to elaborate on the “friend.” (RR vol. 2,

pp. 15-16) This vagueness was consistent with deception. (RR vol. 2, p.

16) As the deputy spoke with him, the appellant became more and more

agitated. (RR vol. 2, pp. 16-17)

At that point, the officer believed he had probable cause to believe that the appellant had committed theft and was in possession of that stolen

property. (RR vol. 2, p. 17) The deputy also had probable cause, to

search the motor-vehicle, finding several large heavy engine parts. (RR

vol. 2, p. 17)

B. STANDARD OF REVIEW In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their

testimony. See State v. Ballard , 987 S.W.2d 889, 891 (Tex. Crim. App.

1999). Accordingly, the judge may believe or disbelieve all or any part of a

witness's testimony, even if that testimony is not controverted. See Garcia

v. State , 15 S.W.3d 533, 535 (Tex. Crim. App. 2000); Allridge v. State , 850

S.W.2d 471, 492 (Tex. Crim. App. 1991); Meek v. State , 790 S.W.2d 618,

620 (Tex. Crim. App. 1990). See also, State v. Fecci , 9 S.W.3d 212, 221

(Tex. App.—San Antonio 1999, no pet.) See Mattias v. State , 731 S.W.2d

936, 940 (Tex. Crim. App. 1987). This is so because it is the trial court that

observes first hand the demeanor and appearance of a witness, as

opposed to an appellate court which can only read an impersonal record.

See Garcia , 15 S.W.3d at 535; Villarreal v. State , 935 S.W.2d 134, 138

(Tex. Crim. App. 1996); Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim.

App. 1990).

In reviewing a trial court's ruling, an appellate court must first determine the applicable standard of review. The amount of deference a

reviewing court affords to a trial court's ruling on a “mixed question of law

and fact” (such as the issue of probable cause) often is determined by

which judicial actor is in a better position to decide the issue. Miller v.

Fenton , 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). If the issue

involves the credibility of a witness, thereby making the evaluation of that

witness' demeanor important, compelling reasons exist for allowing the trial

court to apply the law to the facts. Miller , 106 S. Ct. at 452. On the other

hand if the issue is whether an officer had probable cause to seize a

suspect, under the totality of the circumstances, the trial judge is not in an

appreciably better position than the reviewing court to make that

determination.

The United States Supreme Court ruled that, although great weight should be given to the inferences drawn by the trial judges and law

enforcement officers, determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal. Ornelas v. United States , 517

U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). The Court stated, “the

legal rules for probable cause and reasonable suspicion acquire content

only through application. Independent review is therefore necessary if

appellate courts are to maintain control of, and to clarify the legal

principles.” Ornelas , 116 S. Ct. at 1662, citing Miller , 106 S. Ct. at 451–52.;

Guzman v. State , 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).

C. THE OFFICER HAD PROBABLE CAUSE TO ARREST THE APPELLANT AND SEARCH HIS VEHICLE, THEREFORE, THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION

TO SUPPRESS *17 At the hearing on the motion to suppress, the only witness who testified was Deputy Bowling. The Court was free to believe all, none or

any part of the deputy’s testimony.