Case Information

*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 4/13/2015 9:07:00 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-14-00159-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 4/11/2015 6:33:02 PM DEBBIE AUTREY CLERK Nos. 06-14-00159-CR; and 06-14-00160-CR IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA THOMAS LLOYD TAUNTON Appellant

v. THE STATE OF TEXAS Appellee

ON APPEAL FROM THE 336 TH JUDICIAL DISTRICT COURT OF FANNIN COUNTY, TEXAS

THE HON. LAURINE BLAKE, JUDGE PRESIDING TRIAL COURT CAUSE NOS. CR-12-24098, CR-13-24755 APPELLANT’S BRIEF

Oral argument is hereby waived STEVEN R. MIEARS State Bar No. 14025600 211 North Main Bonham, Texas 75418 Tel: 903-640-4963 Fax: 903-640-4964 Email: SteveMiears@msn.com *2 TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... …..2

IDENTITY OF PARTIES AND COUNSEL………………………………………..3

INDEX OF AUTHORITIES……………....................................................................4

STATEMENT OF THE CASE ……………………………………………………7

STATEMENT REGARDING ORAL ARGUMENT……………………………... 7

ISSUES PRESENTED......................................................................................................... 8

STATEMENT OF FACTS……………………………………………………….. 8

SUMMARY OF APPELLANT’S ARGUMENT…………………………………… 9

ISSUE ONE:Did the trial court err in denying the Appellant’s motion to suppress? 9

ARGUMENTS AND AUTHORITIES ……………………………… ………….10

PRAYER............................................................................................................... 19

CERTIFICATE OF WORD COUNT ...............................................................21

CERTIFICATE OF SERVICE ……………………………………………………21

APPENDIX ONE: MOTION TO SUPPRESS

APPENDIX TWO: AFFIDAVITS AND WARRANTS

APPENDIX THREE: WARRANT RETURNS/LAB SHEETS

*3 Identity of Parties and Counsel Pursuant to the Rules of Appellate Procedure, the following is a complete list of the names and addresses of all parties to the trial court’s final judgments and

their counsel in the trial court, as well as appellate counsel, so the members of the

court may at once determine whether they are disqualified to serve or should

recuse themselves from participating in the decision of the cases and so the Clerk

of the Court may properly notify the parties to the trial court’s final judgments or

their counsel, if any, of the judgments and all orders of the Court of Appeals.

Trial HONORABLE JUDGE LAURINE BLAKE Court ................... 336 TH JUDICIAL DISTRICT COURT, Appellant ....................... THOMAS LLOYD TAUNTON William P. Clements Unit 9601 Spur 591

Amarillo, TX 79107-9606 Steven R. Miears (Counsel on Appeal) SBN 14025600 211 North Main

POB 736

Bonham, Texas 75418 903 640 4963 fax: 903 640 4964 SteveMiears@msn.com Appellee ....................................... THE STATE OF TEXAS Richard E. Glaser SBN 08000000 Criminal District Attorney 101 East Sam Rayburn Drive Bonham, Texas 75418

*4 INDEX OF AUTHORITIES Statutes, Codes, Constitutional Provisions, and Rules

US Const. Amend. 4. ……………………………………………………………….10

Tex. Const. Art. I, § 9………………………………………………………………..10

Tex. Code Crim. Proc. art. 38.23 ……………………………………………………10

Cases

Arizona v. Gant, 556 U.S. 332 (U.S. 2009). . …………………………………….16

Delgado v. State, 718 S.W.2d 718 (Tex. Crim. App. 1986)……………………… 18

Florida v. Wells, 495 U.S. 1 (1990)………………………………………………..18

Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007)………………………….16

Illinois v. Gates, 462 U.S. 213 (U.S. 1983)…………………………………………… 11

Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012)……………………………17

Moskey v. State, 333 S.W.3d 696 (Tex. App. Houston 1st Dist. 2010)………………18

Richards v. State, 150 S.W.3d 762(Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) .18

South Dakota v. Opperman, 428 U.S. 364 (1976)……………………………………..18

State v. Huddleston, 387 S.W.3d 33 (Tex. App. Texarkana 2012)…………………….11

Trujillo v. State, 952 S.W.2d 879 (Tex. App.—Dallas 1997, no pet.)………………….18

Uballe v. State, 439 S.W.3d 380(Tex. App.—Amarillo 2014, pet. ref'd). ……………... 18

Nos. 06-14-00159-CR; and 06-14-00160-CR IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA THOMAS LLOYD TAUNTON Appellant

v.

THE STATE OF TEXAS

Appellee ON APPEAL FROM THE 336 TH JUDICIAL DISTRICT COURT OF FANNIN COUNTY, TEXAS

THE HON. LAURINE BLAKE, JUDGE PRESIDING TRIAL COURT CAUSE NOS. CR-12-24098; CR-13-24755 APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS.

COMES NOW, THOMAS LLOYD TAUNTON, Appellant, in the above styled and numbered causes, by and through Steven R. Miears, his undersigned

attorney of record, and files this Brief on Appeal, and requests that the Court

sustain his points of error, render judgments of acquittal; or, alternatively, reverse

the judgments, and remand the cases for a new trial. The Clerk’s record in the

capital murder case will be referenced as “CRCM”. The Clerk’s record in the *7 murder case will be referenced as “CRM”. The reporter’s record will be referenced

as “RR”.

STATEMENT OF THE CASE These two cases are appeals of convictions by a jury of the Appellant for the charges of capital murder and murder. The State did not seek the death

penalty in the capital murder case. (CRCM pp. 51-52) The Appellant was

sentenced to life without parole on the capital murder case, (CRCM p. 157) and

to life in prison on the murder case. (CRM p 134) The cases were consolidated

for trial. (CRCM pp. 130 – 131) (CRM pp. 102 – 103) The issue on appeal is the

same in both cases.

STATEMENT REGARDING ORAL ARGUMENT Oral argument is not requested.

ISSUE PRESENTED

ISSUE: Did the trial court err in denying the Appellant’s motion to suppress?

*8 STATEMENT OF FACTS

After the jury was selected the trial court heard the Appellant’s motion to suppress evidence filed in both cases. (CRCM pp 104- 127) (CRM pp. 76 – 99) (RR

Vol. 3 pp. 6 – 13.) (RR Volume 12 at Reporter’s Record Exhibit 2) ( Also see RR Vol.

3 pp. 110 – 115 in regards to marking of complete copies of exhibits marked as R-2

and granting of a continuing objection.) The motion raised the constitutional issue that

the affidavits supporting the warrants for the searches of the Appellant’s truck, trailer

and rental car in Louisiana did not state sufficient information for the issuing

magistrate to find probable cause. At the hearing both sides waived the presentation of

any testimony concerning the issue, and agreed that the issue was confined to an

analysis of the four corners of the affidavits. (RR Vol. 2 p. 13)

The court denied the motion. (RR Vol. 3 p. 13) A copy of the motion to suppress is attached as Appendix 1. The affidavits and search warrants are attached as Appendix

2. The exhibits identifying the items seized are attached as Appendix 3. The Appellant

requested findings of fact and conclusions of law. (CRCM p. 180 – 181) (CRM p. 164

- 165) The State drafted proposed findings of fact and conclusions of law. (CRCM pp.

189 – 190.) (CRM 167 – 169.) The trial court adopted in toto those requests and

conclusions. (CRCM p. 192) (CRM p. 171)

SUMMARY OF APPELLANT’S ARGUMENTS The trial court erred in denying the motion to suppress. The affidavits supporting the search warrants did not state facts sufficient to establish probable cause. Specifically,

they lacked any information to form the basis to believe: (1) that the offenses of capital

murder or murder had been committed; or, (2) that the items which were to be searched

for constituted evidence of those offenses or evidence that Appellant had committed those

offenses; or, (3) that the items to be searched for were likely to be found in the Appellant’s

pickup truck, trailer, or rental car.

The State’s alternative argument that the searches were lawful as warrantless searches also fails. The Appellant was under arrest at the time the vehicles and trailer were

searched, and not in a position to pose any threat to officers. Further, no evidence was

presented which gave the trial judge any reason to conclude that the officers had any

reason to believe that the truck, trailer or car contained evidence of a crime. The trial

court’s written finding of fact to the contrary is not supported by any evidence, and on

appeal should be disregarded. No evidence was presented that any exigency existed

necessitating the searches. And, finally, no evidence was presented that the searches were

justified as inventory searches.

ISSUE ONE: Did the trial court err in denying the Appellant’s motion to suppress? *10 ARGUMENT & AUTHORITIES The constitution of the United States guarantees that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.” US Const. Amend. 4. Similarly, the Texas constitution

states that, “The people shall be secure in their persons, houses, papers and possessions,

from all unreasonable seizures or searches, and no warrant to search any place, or to seize

any person or thing, shall issue without describing them as near as may be, nor without

probable cause, supported by oath or affirmation.” Tex. Const. Art. I, § 9.

The Texas Code of Criminal Procedure corrects violations of those laws by mandating that, “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 of 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.” Tex. Code Crim. Proc. art. 38.23. Similarly, the U.S. Supreme

Court has held that, “all evidence obtained by searches and seizures in violation of the

Constitution is, by that same authority, inadmissible in a state court.” Mapp v. Ohio, 367

U.S. 643, 655 (U.S. 1961).

For a search warrant to be legally issued an affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause. Wholly

conclusory statements are insufficient. Such “bare bones” affidavits fail constitutional

scrutiny. The magistrate’s signature is not to be a rubber stamp of the summary

conclusions of others. As stated by the U.S. Supreme Court, “In order to ensure that such

an abdication of the magistrate's duty does not occur, courts must continue to

conscientiously review the sufficiency of affidavits on which warrants are issued.” Illinois

v. Gates, 462 U.S. 213, 239 (U.S. 1983).

In State v. Huddleston, 387 S.W.3d 33, 36-37 (Tex. App. Texarkana 2012), this Court reviewed the law on the requirements of a search warrant affidavit. This Court

wrote:

Although we grant great deference to the determination of a magistrate issuing a warrant, we do not grant that same degree of deference to a reviewing trial court. A motion to suppress is normally reviewed based on a bifurcated standard which (1) grants deference to the trial court's determinations of historical facts that are based on an evaluation of credibility and (2) reviews de novo the trial court's application of the law. However, when the trial court is determining probable cause to support the issuance of a search warrant, there are no credibility determinations, rather the trial court is constrained to the four corners of the affidavit. Because probable cause to support the issuance of the warrant is determined from the "four corners" of the affidavit alone, there are no credibility choices to be made by the trial court and we review de novo the court's ruling. (Internal citations omitted.)

An application for a search warrant must be supported by an affidavit setting forth facts establishing probable cause. To justify the issuance of a search warrant, the supporting affidavit must set forth facts sufficient to establish probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. The facts contained in the probable cause affidavit must be sufficient to justify a conclusion that the object of the search is probably on the premises at the time the warrant is issued. The determination of the sufficiency of an arrest or search warrant is limited to the four corners of the affidavit. The issue is not whether there are other facts that could have, or even should have, been included in the affidavit; we focus on the combined logical force of facts that are in the affidavit, not those that are omitted from the affidavit. (Internal citations omitted.) The warrant must contain "sufficient information" to allow the issuing magistrate to determine probable cause because the magistrate's action cannot be a mere ratification of the bare conclusions of others. As explained in Wise v. State: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Internal citations omitted.)

State v. Huddleston, 387 S.W.3d 33, 36-37 (Tex. App. Texarkana 2012). The affidavits in support of the search warrants set forth the following: 1. One affiant was a peace officer with the DeSoto Parish Sheriff’s office for the State of Louisiana. The other affiant was a Texas Ranger. On January 18, 2012, Ranger

Oliver began investigating the complaint(s) that Harold Harpst, Willis Sue Harpst and

Regina Taunton were murdered in Fannin County, Texas.

2. On January 18, 2012, a justice of the peace in Texas had issued a warrant for the arrest of Appellant for capital murder.

3. On January 19, 2012, United States Marshals Service personnel in Shreveport, Louisiana received information that Thomas Taunton was wanted by Texas authorities for

Capital Murder, and that he was possibly traveling through Louisiana en route to

Mississippi.

4. Marshals Service personnel notified law enforcement agencies throughout Louisiana to be on lookout for Taunton who was possibly traveling in a white Ford pickup

truck pulling a trailer.

5. Appellant was located and arrested at the Jimmy Granger Ford Automobile Dealership in Stonewall, DeSoto Parish Louisiana.

6. Law enforcement officers found a white Ford pickup truck and a box trailer, both registered to Thomas Taunton of Leonard, Texas at the dealership.

7. On January 18, 2012, Taunton had driven his Ford pickup truck to Jimmy Granger Ford where he had left it to be repaired.

8. Jimmy Granger Ford personnel had loaned Taunton a passenger vehicle to use while his truck was being repaired.

9. Prior to requesting the warrants, law enforcement officers had towed Appellant’s truck and trailer to a locked storage building.

The affidavits also contained the statement that Ranger Oliver had, “obtained overwhelming evidence and information that Thomas Taunton was the one who

murdered them.” No facts were given to back this statement up. Based upon only these

“bare bone” assertions, and a wholly conclusory statement, a district judge presiding over

the 42 nd Judicial District Court, Webster Parish, Louisiana, issued search warrants for

Appellant’s truck, trailer, and rental car. The affidavits fail all three requirements identified

in Huddleston. At the hearing on the motion to suppress, even the prosecutor conceded

that the affidavit suffered from the fatal moniker of being a “bare bones” affidavit. (RR

Vol. 3 p. 11)

First, no facts were set forth as to why the magistrate should have believed that Harold Harpst, Sue Harpst, or Regina Taunton had been murdered. Only conclusory

statements were given that their murders were being investigated. No information was

given as to why it should be believed that they were deceased, or even that they were

missing. No information is given to indicate why it should be believed that they were the

victims of homicides. No information is given as to why Appellant was a suspect. Second,

the affidavits described eleven categories of items sought, including blood, firearms,

clothing, cleaning supplies, carpet, check books, cell phones, credit and debit cards, and

documents showing where Appellant spent the night of January 18, 2012, and, generally

“any unknown item(s) of evidentiary importance.” No facts whatsoever were given which

described how or why any of these items sought might constitute evidence of a crime.

Third, no facts are given as to why it could be believed that Appellant’s truck, trailer, or

rental vehicle might contain any of the items to be searched for.

The affidavits’ assertion that a Texas judge had already issued a warrant for Appellant’s arrest did not provide any basis to conclude that evidence of a crime was

likely to be found in his truck or trailer. The affidavit supporting the arrest warrant,

assuming there was one, was not attached to these search warrant affidavits. And,

whatever facts which may have been set forth in the arrest warrant affidavit were

unknown to the magistrate reviewing the affidavits for the search warrants.

Conceding that the validity of the search warrants was problematic, the State suggested during its argument at the suppression hearing that the searches were

nevertheless valid as warrantless searches incident to Appellant’s arrest. (RR Vol. 3 pp.

10-11) This rationale was parroted in finding of fact number 4, which was authored by

the State, and embraced in toto by the trial court: “Officers also properly searched the

truck and trailer because at the time of arrest, they had reason to believe the truck and

trailer contained evidence of the offense for which the defendant was arrested.” (CRCM p.

190) (CRM p. 168) The law applicable to warrantless searches of vehicles, however,

states that the State bears the burden of proving the existence of an exception to the

warrant requirement. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.

2007). Nothing in the record factually supports a finding that the State met this burden.

Absolutely no testimonial evidence supporting an exception to the requirement of a warrant was ever presented at the hearing. The issue of the legality of the searches was

submitted to the court solely upon the question of the validity of the affidavits to support

the warrants. Only in argument to the court did the State propose the idea of the searches

being valid as warrantless searches. At the hearing, the prosecution suggested to the court

that the law of Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485

(2009) was applicable.

In fact, what the Court held in Gant, does not support the State’s contention. In Gant the Court held that, “Police may search a vehicle incident to a recent occupant's

arrest only if the arrestee is within reaching distance of the passenger compartment at the

time of the search or it is reasonable to believe the vehicle contains evidence of the offense

of arrest. When these justifications are absent, a search of an arrestee's vehicle will be

unreasonable unless police obtain a warrant or show that another exception to the warrant

requirement applies.” Arizona v. Gant, 129 S. Ct. 1710, 1723-1724 (U.S. 2009).

No facts were submitted at the hearing to support any reason to believe that there was any evidence associated with the crimes to be found in any of the vehicles. Also, there

were no facts admitted into evidence showing that the Appellant had been a recent

occupant of either the vehicle or the trailer at the time of the searches. Nor was there any

evidence that he was inside either of the vehicles or the trailer at the time of the arrest. In

fact, the affidavits make it clear that prior to them being searched both the pickup truck

and the trailer were moved by law enforcement from the dealership to a secure storage

facility. ( See affidavits’ in their concluding paragraphs.) In fact, the trial court made a

finding of fact that, “At the time of the search, the defendant was in custody and did not

have access to or possession of the truck.” (See finding number 6, CRCM p. 189 and

finding number 6 CRM p. 167.) The affidavits do clearly state that the truck and trailer

were towed to a secure storage garage after Appellant’s arrest, and prior to the warrants

being sought. There is no evidence to support the contention that these were lawful

warrantless searches.

The trial court’s finding of as a historical fact that the officers “had reason to believe the truck and trailer contained evidence of the offense for which the defendant was

arrested” is, therefore, inconsistent with the record. On appeal, findings should be

disregarded when they are unsupported by the record, even when that record is viewed in

a light most favorable to the trial court's ruling. See Miller v. State, 393 S.W.3d 255, 263

(Tex. Crim. App. 2012). Such is the case here.

Nor could the searches be justified as lawful inventory searches. The State bears the burden of proving that an impounding of the vehicles occurred, and the subsequent

inventory searches were lawful. Delgado v. State, 718 S.W.2d 718, 721 (Tex. Crim. App.

1986); Moskey v. State, 333 S.W.3d 696 (Tex. App. Houston 1st Dist. 2010). To satisfy

this burden it was incumbent upon the State to prove that the vehicles and trailer had been

in fact impounded, and inventoried pursuant to standardized criteria or an established

policy. South Dakota v. Opperman, 428 U.S. 364, 372, 96 S. Ct. 3092, 49 L. Ed. 2d 1000

(1976); Trujillo v. State, 952 S.W.2d 879, 882 (Tex. App.—Dallas 1997, no pet.); Moskey

id., at 700.

An inventory search must be designed to produce an inventory of the vehicle's contents and must not be a "ruse for a general rummaging in order to discover

incriminating evidence." Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1

(1990); see also Richards v. State, 150 S.W.3d 762, 771 (Tex. App.—Houston [14th

Dist.] 2004, pet. ref'd) (en banc). "The individual police officer must not be allowed so

much latitude that inventory searches are turned into 'a purposeful and general means of

discovering evidence of crime.” Uballe v. State, 439 S.W.3d 380, 384 (Tex. App.—

Amarillo 2014, pet. ref'd) (quoting Wells, 495 U.S. at 4).

Here, no evidence was admitted to establish that the vehicles and trailer had been impounded. According to the affidavits they had been moved to a locked storage facility.

However, they were not searched until after the warrants had been signed. No evidence

was admitted to show that it was necessary to inventory the vehicles. No evidence was

admitted that there was an inventory policy or procedure, or that it was followed. These

were not inventory searches. No argument at the hearing was made that these were

inventory searches.

In conclusion, the trial court should have granted the motion. The items seized should have never been seen by the jury, or discussed in their presence. The results of any

testing of that evidence should have likewise been excluded. The significance of the

evidence should not have been argued to the jury. The effect of this pre-trial ruling

on the mind-set of the Appellant to absent himself from most of the proceedings, only to

appear and decide to testify, can’t be conjured by analysis of the other evidence. And,

without entering the conscious and sub-conscious minds of each juror, it cannot be said

that, beyond a reasonable doubt, this evidence did not in some way contribute to the

verdicts.

Prayer

WHEREFORE, PREMISES CONSIDERED, APPELLANT PRAYS that

this Court sustain the Appellant’s point of error, find the error was not harmless

beyond a reasonable doubt, reverse the convictions, and remand these cases to the

trial court for a new trial on guilt or innocence.

RESPECTFULLY SUMITTED, _____________________ Steven R. Miears 211 North Main Bonham, Texas 75418 eMail: stevemiears@msn.com Tel. 903-640-4963 Fax: 903-640-4964 State Bar Card No. 14025600 Lawyer for Appellant *21 Certificate of Word Count

Counsel for the Appellant certifies that the word count of this brief is 3,929 words and within the limitations for length of briefs on appeal.

_________________________ Steven R. Miears Certificate of Service

This is to certify that a true and correct copy of the above and foregoing Appellant’s Brief on Appeal was hand-delivered to Richard E. Glaser, Fannin

County Criminal District Attorney; 101 East Sam Rayburn Drive; Bonham, Texas

75418; on February 12, 2015; and, that a copy was mailed to the Appellant,.

_________________________________ Steven R. Miears