Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/23/2015 11:02:19 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00108-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/23/2015 11:02:19 AM DEBBIE AUTREY CLERK
ORAL ARGUMENT WAIVED CAUSE NO. 06-15-00108-CR IN THE
COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
ALEXANDER NATHANIEL BRENES, Appellant V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE 6 TH DISTRICT COURT; LAMAR COUNTY, TEXAS; TRIAL COURT CAUSE NO. 23814; H ONORABLE WILLIAM “BILL” HARRIS, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
Gary D. Young Lamar County and District Attorney Lamar County Courthouse 119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
ATTORNEYS FOR THE STATE OF TEXAS *2 IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and counsel is not required to supplement or correct the appellant’s list.
-i- *3 TABLE OF CONTENTS PAGE NO.: IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . .. . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . ix
ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . . . x
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 10
ARGUMENT AND AUTHORITIES
ISSUE/POINT OF ERROR IN REPLY NO. 1: THE TRIAL COURT DID NOT ERR IN ADJUDGING THE APPELLANT GUILTY OF POSSESSION WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE, NAMELY, “ECSTASY OR METHYLENDIOXY METHAMPHETAMINE,” AS ALLEGED IN THE INDICTMENT BECAUSE BRENES COULD NOT ESTABLISH THE VOID JUDGMENT EXCEPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 -ii-
ISSUE/POINT OF ERROR IN REPLY NO. 2: ASSUMING THE APPELLANT PRESERVED ERROR, THE TRIAL COURT DID NOT ERR IN SENTENCING THE APPELLANT WITHIN THE APPLICABLE RANGE OF PUNISHMENT FOR A FIRST DEGREE FELONY. 16 ISSUE/POINT OF ERROR IN REPLY NO. 3: THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT’S MOTION TO SUPPRESS AND IN CONCLUDING THAT THE SEARCH OF THE APPELLANT’S VEHICLE WAS LAWFUL BECAUSE ONCE PROBABLE CAUSE WAS ESTABLISHED, THE OFFICERS COULD SEARCH THE APPELLANT’S VEHICLE WITHOUT A WARRANT. . . . . . . . . . . . 19 ISSUE/POINT OF ERROR IN REPLY NO. 4: THE TRIAL COURT DID NOT ERR IN ACCEPTING THE APPELLANT’S GUILTY PLEA BECAUSE BRENES WAIVED ANY COMPLAINT AS TO THE ADMISSIBILITY OF HIS RECORDED STATEMENT BY FAILING TO SPECIFICALLY OBJECT ON THE BASIS OF ARTICLE 38.22 OF THE TEXAS CODE OF CRIMINAL PROCEDURE; ALTERNATIVELY, THE APPELLANT (BRENES) COULD NOT SHOW ANY HARM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . 30
-iii- *5 INDEX OF AUTHORITIES CASES: PAGE:
Amos v. State , 819 S.W.2d 156, 161 (Tex. Crim. App. 1991),
cert. denied , 504 U.S. 917, 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,26 Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim.
App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20 England v. State , 887 S.W.2d 902, 913 (Tex. Crim. App.
1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Ex parte Patterson , 969 S.W.2d 16, 19 (Tex. Crim.
App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Ex parte Pena , 71 S.W.3d 336, 336-37 n. 1 (Tex. Crim.
App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Flowers v. State , 438 S.W.3d 86, 107 (Tex. App.--Texarkana
2014, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Gant v. State , 116 S.W.3d 124, 134, 135 (Tex. App.--Tyler 2003,
pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,26 Gonzalez v. State , 195 S.W.3d 114, 126 (Tex. Crim.
App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Graves v. State , 307 S.W.3d 483, 489 (Tex. App.--Texarkana
2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20 Harris v. State , 468 S.W.3d 248, 255 (Tex. App.--Texarkana
2015, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 -iv-
CASES: PAGE:
Hernandez v. State , 867 S.W. 900, 907 (Tex. App.--Texarkana
1993, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,26 Hitchcock v. State , 118 S.W.3d 844, 851 (Tex. App.--
Texarkana 2003, pet. ref’d). . . . . . . . . . . . . . . . . . . . . 24,26 Hill v. State , 440 S.W.3d 670, 676 (Tex. App.--Tyler
2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Hoffa v. United States , 385 U.S. 293, 302; 87 S. Ct. 408; 17 L.
Ed. 2d 374 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,23 Joshua David Stevens v. The State of Texas , No. 06-05-00235-CR,
2006 Tex. App. LEXIS 3671, 3761 *3, *4, *7, *8, *9 (Tex. App.--Texarkana May 2, 2006, pet. ref’d) (mem. op., not designated for publication) (Carter, J.) . . . . . . . . . . . . 13,14,15 Katz v. United States , 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed.
2d 576 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22 Mizell v. State , 119 S.W.3d 804, 806 n. 6 (Tex. Crim.
App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Neal v. State , 256 S.W.3d 264, 282 (Tex. Crim. App. 2008),
cert . denied , 555 U.S. 1154, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Nix v. State , 65 S.W.3d 664, 667-668, 668 n. 14 (Tex. Crim.
App. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Catania , 427 Mich. 447, 465-66; 398 N.W.2d 343,
351-52 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Pina v. State , 38 S.W.3d 730, 736 (Tex. App.--Texarkana 2001,
pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 -v-
CASES: PAGE:
Rogers v. State , 291 S.W.3d 148, 151 (Tex. App.--Texarkana
2009, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 State v. Ballard , 987 S.W.2d 889, 891 (Tex. Crim.
App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 State v. Guzman , 959 S.W.2d 631, 634 (Tex. Crim. App.
1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 State v. Mazuca , 375 S.W.3d 294, 296 n. 2 (Tex. Crim. App. 2012)
cert . denied , ___ U.S. ___, 133 S.Ct. 1724, 185 L.Ed.2d 789 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,17 State v. Ross , 32 S.W.3d 853, 856-57 (Tex. Crim.
App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 United States v. Johns , 469 U.S. 478, 484; 105 S.Ct. 881, 83
L.Ed.2d 890 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Villarreal v. State , 935 S.W.2d 134, 138 (Tex. Crim. App.
1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 STATUTES: PAGE NO:
TEX. CODE CRIM. PROC. ART. 38.22 . . . . . . . . . . . . . . . 27,28
TEX. HEALTH & SAFETY CODE ANN. § 481.103 . . . . .
TEX. HEALTH & SAFETY CODE ANN. § 481.113(d)
(West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 -vi-
STATUTES: PAGE NO:
TEX. HEALTH & SAFETY CODE ANN. § 481.113(a), (d)
(West 2010 & Supp. 2015) . . . . . . . . . . . . . . . . . . . . . viii,17 TEX. HEALTH & SAFETY CODE ANN. § 481.121(a),
(b)(4) (West 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . viii TEX. PENAL CODE ANN. § 8.06 (West 2011) . . . . . . . . . 21
TEX. PENAL CODE ANN. §12.32 (West 2006). . . . . . . . . 17,18
TEX. R. APP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,21,27
TEX. R. APP. P. 38.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
TEX. R. APP. P 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TEX. R. APP. P 38.2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . ix
TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . i
TEX. R. APP. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
-vii- *9 STATEMENT OF THE CASE In this narcotics case, the State’s indictment charged the appellant (Brenes) as a habitual offender and with felony offenses in two counts: (1)
possession of marijuana of fifty (50) pounds or less but more than five (5)
pounds in a drug free zone; and (2) possession with intent to deliver a
controlled substance, namely, “Ecstasy or methylendixoy
methamphetamine” of four grams or more but less than four hundred grams. CR, pgs. 6-8. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(4)
(West 2010) (Offense: Possession of Marihuana); Tex. Health & Safety
Code Ann. § 481.113(a), (d) (West 2010 & Supp. 2015) (Offense:
Manufacture of Delivery of Substance in Penalty Group 2 or 2-A).
The appellant (Brenes) filed a motion to suppress, which the trial court denied after a hearing. RR, Vol. 1, pg. 119. Consistent with a plea
bargain agreement, the trial court subsequently found Brenes guilty of the
felony offenses in both counts and sentenced him “to 20 years in TDC” in
count one and “to 25 years in TDC” in count two. RR, Vol. 2, pg. 9.
From two (2) separate final judgments of conviction in both counts (CR, pgs. 99-100; 100-101), the appellant filed his notice of appeal. CR,
pg. 96. By this appeal, Brenes brings four (4) issues/points of error.
-viii- *10 STATEMENT REGARDING ORAL ARGUMENT The State of Texas will waive oral argument. Tex. R. App. P.
38.1(e), 38.2(a)(1).
-ix- *11 ISSUES/POINTS OF ERROR PRESENTED IN REPLY ISSUE/POINT OF ERROR IN REPLY NO. 1: THE TRIAL COURT
DID NOT ERR IN ADJUDGING THE APPELLANT GUILTY OF
POSSESSION WITH INTENT TO DELIVER A CONTROLLED
SUBSTANCE, NAMELY, “ECSTASY OR METHYLENDIOXY
METHAMPHETAMINE,” AS ALLEGED IN THE INDICTMENT
BECAUSE BRENES COULD NOT ESTABLISH THE VOID
JUDGMENT EXCEPTION.
ISSUE/POINT OF ERROR IN REPLY NO. 2: ASSUMING THE
APPELLANT PRESERVED ERROR, THE TRIAL COURT DID NOT
ERR IN SENTENCING THE APPELLANT WITHIN THE
APPLICABLE RANGE OF PUNISHMENT FOR A FIRST DEGREE
FELONY.
ISSUE/POINT OF ERROR IN REPLY NO. 3: THE TRIAL COURT
DID NOT ERR IN DENYING THE APPELLANT’S MOTION TO
SUPPRESS AND IN CONCLUDING THAT THE SEARCH OF THE
APPELLANT’S VEHICLE WAS LAWFUL BECAUSE ONCE
PROBABLE CAUSE WAS ESTABLISHED, THE OFFICERS COULD
SEARCH THE APPELLANT’S VEHICLE WITHOUT A WARRANT.
ISSUE/POINT OF ERROR IN REPLY NO. 4: THE TRIAL COURT
DID NOT ERR IN ACCEPTING THE APPELLANT’S GUILTY PLEA
BECAUSE BRENES WAIVED ANY COMPLAINT AS TO THE
ADMISSIBILITY OF HIS RECORDED STATEMENT BY FAILING
TO SPECIFICALLY OBJECT ON THE BASIS OF ARTICLE 38.22
OF THE TEXAS CODE OF CRIMINAL PROCEDURE;
ALTERNATIVELY, THE APPELLANT (BRENES) COULD NOT
SHOW ANY HARM.
-x- *12 CAUSE NO. 06-15-00108-CR IN THE
COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
ALEXANDER NATHANIEL BRENES, Appellant V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE 6 TH DISTRICT COURT; LAMAR COUNTY, TEXAS; TRIAL COURT CAUSE NO. 23814; H ONORABLE WILLIAM “BILL” HARRIS, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
_____________________________________________________________
TO THE HONORABLE SIXTH COURT OF APPEALS:
COMES NOW, the State of Texas, by and through the County and District Attorney’s Office of Lamar County, files this its Appellee’s (State’s)
Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, the appellant will be referred to as “Brenes” and the appellee will be referred to as “the State.”
STATEMENT OF FACTS Factual Background.
In April of 2010, Leigh Foreman, a detective with the Paris Police Department, (Detective Foreman) was investigating narcotics violations at
2331 Maple in Lamar County. See RR, Vol. 1, pg. 13. Detective Foreman
had received a phone call from Anson Amis (Amis), who was employed by
the Lamar County Sheriff’s Department as a narcotics investigator. See RR,
Vol. 1, pgs. 14, 21. Amis had received information from an informant that
Brenes was in Paris and was frequenting a house in the 2300 block of Maple.
See RR, Vol. 1, pgs. 14, 21.
The house was occupied by three females: Tiffany Deaton (Deaton), Angela Langston (Langston) and April Bankston (Bankston). See RR, Vol.
1, pgs. 14, 66. Langston and Bankston were sisters. RR, Vol. 1, pg. 77.
Deaton was a tenant at the house, and she lived there. RR, Vol. 1, pgs.
72, 82, 84. According to Deaton, she was “a live-in babysitter.” RR,
Vol. 1, pg. 84.
Detective Foreman, Detective Stone and Sergeant Springer (Sergeant Springer) went to that location. RR, Vol. 1, pg. 14. The officers
approached the house (RR, Vol. 1, pg. 36) and made contact with Deaton,
who was alone outside the house. See RR, Vol. 1, pg. 37. Detective
Foreman identified himself and asked who lived there. See RR, Vol. 1, pg.
38. The front door was open, and Detective Foreman could see other
occupants in the house. See RR, Vol. 1, pg. 38.
Langston was in the doorway of the house. See RR, Vol. 1, pg. 41.
When Langston said that she lived there and everyone else was visiting (RR,
Vol. 1, pg. 42), the officers determined that Langston was the one that lived
at the house. See RR, Vol. 1, pgs. 14, 38, 41. Detective Foreman asked
Langston for consent to search, and she gave consent. See RR, Vol. 1, pgs.
14, 42, 67, 87.
The officers found a small, clear baggie of marijuana in Langston’s room and the remnants of marijuana packaging in Deaton’s room. RR,
Vol. 1, pgs. 15, 22, 67, 72, 88. According to Langston, the officers said that
“it wasn’t enough to worry about.” RR, Vol. 1, pg. 67. Detective
Foreman could smell marijuana in the house and on the packaging. RR,
Vol. 1, pg. 15.
Detective Foreman confronted Deaton about what was found in her room (RR, Vol. 1, pg. 50), and asked her about that. RR, Vol. 1, pg. 15.
She told Detective Foreman that her marijuana supplier was Brenes. See
RR, Vol. 1, pgs. 15, 17, 22. In talking to Detective Foreman, Deaton had
helped Brenes package marijuana in smaller amounts. See RR, Vol. 1, pg.
17. Detective Foreman asked her if she would cooperate with getting Brenes
to deliver marijuana to the house. See RR, Vol. 1, pg. 50. Deaton agreed.
See RR, Vol. 1, pgs. 17, 51, 89.
Deaton agreed to make a phone call or a text to Brenes in an attempt to arrange for him to deliver marijuana. See RR, Vol. 1, pgs. 17, 51, 89-90.
Deaton also said that he’d commonly carry his contraband in a backpack.
See RR, Vol. 1, pg. 22.
Detective Foreman was aware of Brenes because he had previously been to prison for delivery. See RR, Vol. 1, pg. 18. The officers had Deaton
make contact with text messaging, and the “slang” text asked “if he had any
green.” RR, Vol. 1, pg. 18. Brenes stated, “he was going to be on his
way and he arrived a short time later.” RR, Vol. 1, pg. 19. Deaton
described Brenes’ vehicle as a green Toyota. RR, Vol. 1, pgs. 19, 22.
Detective Foreman and Sergeant Springer remained in the house. See
RR, Vol. 1, pg. 20. Detective Stone took a position up outside the residence
to await the arrival of Brenes (RR, Vol. 1, pg. 51), and was in a marked
vehicle “down the road a little bit” from the house. RR, Vol. 1, pg. 20.
Brenes was on the phone, when he pulled up. See RR, Vol. 1, pg. 91.
Brenes walked in the house, where the door had been left cracked open. See
RR, Vol. 1, pg. 91. Detective Foreman was in the living room, hiding
behind the front door. See RR, Vol. 1, pgs. 51-52.
Detective Foreman and Sergeant Springer detained him. See RR, Vol.
1, pg. 20. Sergeant Springer “cuffed” Brenes. See RR, Vol. 1, pg. 54. “He
was in handcuffs.” See RR, Vol. 1, pg. 58. See also RR, Vol. 1, pg. 92.
“He was not free to go.” See RR, Vol. 1, pg. 58. “[H]e was detained for an
investigative detention.” See RR, Vol. 1, pg. 58.
Detective Foreman asked him his name and asked him if he had marijuana. See RR, Vol. 1, pg. 56. Brenes said, “no.” See RR, Vol. 1, pg.
56. Detective Foreman advised Brenes that he was going to search his
vehicle for marijuana. See RR, Vol. 1, pg. 56. Brenes told Detective
Foreman that he could not. See RR, Vol. 1, pg. 56.
Detective Foreman went outside to the green Toyota. See RR, Vol. 1,
pgs. 20, 56. Detective Stone also walked out to his car. RR, Vol. 1, pg.
58. The vehicle had the windows down. RR, Vol. 1, pg. 20. The
driver’s side window was open. RR, Vol. 1, pg. 58.
Detective Foreman could smell marijuana. RR, Vol. 1, pg. 20. It
was a “strong smell” of marijuana. See RR, Vol. 1, pg. 22. Based on his
training, Detective Foreman then searched the vehicle without a warrant.
See RR, Vol. 1, pgs. 20-21, 58. Detective Forman searched the car
exclusively on the odor of marijuana. See RR, Vol. 1, pg. 59. Detective
Foreman “literally had no doubt that there was marijuana in the vehicle.”
See RR, Vol. 1, pg. 22.
As a result of his search, Detective Foreman found a backpack that had baggies and scales for weighing contraband. See RR, Vol. 1, pgs. 22,
59. In the glove compartment, Detective Foreman found a baggie containing
99 tablets of ecstasy. See RR, Vol. 1, pgs. 23, 59. Sergeant Springer was
the first one to search the trunk, where he found nine taped bundles. See
RR, Vol. 1, pgs. 23, 60. Ultimately, the officers found almost twelve pounds
of marijuana, and that’s a “huge amount in Paris.” RR, Vol. 1, pg. 23.
The officers arrested Brenes (RR, Vol. 1, pg. 23), and removed the cell phones from his person. RR, Vol. 1, pgs. 24-25. Upon their initial
contact with Brenes, Sergeant Springer Mirandized him at the scene and
attempted to talk to him, but he wouldn’t talk. RR, Vol. 1, pgs. 25, 28,
29-30, 33, 35, 61. Brenes requested an attorney. RR, Vol. 1, pg. 34.
Initially, Brenes would have been jailed at the Paris Police *18 Department and subsequently transferred to the Lamar County jail. See RR,
Vol. 1, pg. 32. Later, Brenes changed his attitude at the jail for the Paris
Police Department. See RR, Vol. 1, pgs. 25, 35.
While booking him in, Detective Foreman and Brenes were “face to face” (RR, Vol. 1, pgs. 27-28), and Detective Foreman told Brenes that since
he had refused to talk with Sergeant Springer, he couldn’t speak with him
unless he attempted to speak with Detective Foreman first. RR, Vol. 1,
pgs. 25-26, 33. Detective Foreman made Brenes aware of Sergeant
Springer’s Miranda warnings to him. RR, Vol. 1, pg. 26. Brenes made
recorded statements; in which, he confessed to being a marijuana and ecstasy
dealer “to varying degrees.” RR, Vol. 1, pg. 26.
Indictment of July 15, 2010.
On July 15, 2010, a grand jury in Lamar County returned an original indictment against Brenes that charged him with felony offenses in two (2)
counts: (1) possession of marijuana of fifty pounds or less but more than
five pounds; and (2) possession with intent to deliver a controlled substance,
namely, Ecstasy or methylendixoy methamphetamine of four grams or more
but less than four hundred grams. CR, pgs. 6-8. Both counts included
paragraphs, which alleged that each offense was committed in a drug free
zone. [1] See CR, pg. 7.
Suppression Hearing on December 12, 2014.
On December 12, 2014, the trial court called cause number 23814 and “[w]e’re here today on the Defendant’s motion to suppress.” See RR, Vol.
1, pg. 4. After a preliminary discussion (RR, Vol. 1, pgs. 4-12), the State
called Detective Foreman as its first witness. See RR, Vol. 1, pg. 13.
Following his testimony, the State rested. See RR, Vol. 1, pg. 64.
Brenes presented several witnesses; and at the conclusion of their testimony, the defense rested. See RR, Vol. 1, pg. 114. Both sides then
rested and closed. RR, Vol. 1, pg. 114.
After argument by counsel (RR, Vol. 1, pgs. 114-119), the trial court ruled, “I’m going to deny the motion to suppress with regards to the conduct
at the house and what happened and what was seized out of the car.” See
RR, Vol. 1, pg. 119.
Proceedings on June 19, 2015 and Plea Bargain Agreement. On June 19, 2015, the trial court called cause number 23814, which had been set for a jury trial on June 29 th . RR, Vol. 2, pg. 4. During the
hearing, the trial judge learned that the State and Brenes had reached a plea
agreement. RR, Vol. 2, pg. 4.
*20 Consistent with the plea agreement, the trial court found Brenes guilty beyond a reasonable doubt and pronounced sentence. See RR, Vol. 2, pg. 9.
In count one, the trial court sentenced Brenes “to 20 years in TDC, and I’ll
note for the record that the drug-free zone has been abandoned in that
count.” RR, Vol. 2, pg. 9. In count two, the trial court sentenced Brenes
“to 25 years in TDC, and, again, I’ll note for the record that the drug-free
zone allegation has been abandoned.” RR, Vol. 2, pg. 9.
On June 19 th , the trial court signed separate Judgments of Conviction by Court--Waiver of Jury Trial as to count one (CR, pgs. 99-100) and count
two. CR, pgs. 101-102. On the same day, the trial court signed its
Certification of the Defendant’s Right of Appeal (CR, pg. 94), and Brenes
filed his notice of appeal. CR, pg. 96.
Proceedings in this Court of Appeals.
On or about June 25 th , Brenes, the appellant, filed his notice of appeal in this Court. By electronic filing or about August 25 th , the District Clerk of
Lamar County filed the Clerk’s Record. The official court reporter filed the
Reporter’s Record on or about August 31, 2015. On or about September 14,
2015, the District Clerk filed a supplemental Clerk’s Record.
As the due date for the appellant’s brief approached, Brenes filed a *21 motion to extend time to file his brief, which this Court granted on or about
September 15, 2015. Brenes then filed his brief on October 20, 2015.
On November 19 th , the State filed its motion to extend time to file its brief, which this Court granted until December 18, 2015. The State will be
filing its brief and a second motion to extend time until December 23 rd .
SUMMARY OF THE ARGUMENT In summary, the appellant’s four (4) issues/points of error should be overruled for the following reasons:
(1) The trial court did not err in adjudging Brenes guilty in count two because Brenes could not establish the void judgment exception. The
typographical error in the exact scientific name of the compound (“3,4-
methylendioxy methamphetamine”) was not sufficient to deprive Brenes or
notice, or to deprive the trial court of jurisdiction.
(2) Assuming the appellant preserved error, the trial court did not err in sentencing the appellant in count two “to 25 years in TDC” because it
was within the applicable range of punishment for a first degree felony.
(3) The trial court did not err in denying the appellant’s motion to suppress because once probable cause was sufficiently established, the
officers could search the appellant’s vehicle without a warrant.
(4) Finally, the trial court did not err in accepting the appellant’s guilty plea because Brenes waived any complaint as to the admissibility of
his recorded statement by failing to object. In the alternative, Brenes could
not show any harm. For these reasons, the final judgments of conviction
should be affirmed in both counts. CR, pgs. 99-100; 101-102.
ARGUMENT AND AUTHORITIES ISSUE/POINT OF ERROR IN REPLY NO. 1: THE TRIAL COURT
DID NOT ERR IN ADJUDGING THE APPELLANT GUILTY OF
POSSESSION WITH INTENT TO DELIVER A CONTROLLED
SUBSTANCE, NAMELY, “ECSTASY OR METHYLENDIOXY
METHAMPHETAMINE,” AS ALLEGED IN THE INDICTMENT
BECAUSE BRENES COULD NOT ESTABLISH THE VOID
JUDGMENT EXCEPTION.
A. Introduction.
With his first issue/point of error, Brenes alleged that his conviction, as alleged in count two (CR, pg. 7), was void because neither “Ecstasy” nor
“Methylendioxy methamphetamine” were listed in chapter 481 of the Texas
Health and Safety Code. Appellant’s Brief, pgs. 24-26. According to
Brenes, his conviction should be declared a nullity, and he is allegedly
entitled to immediate relief. Appellant’s Brief, pgs. 24, 26.
B. Standard of Review: Void Judgment.
A void judgment is a “nullity” and can be attacked at any time. See
Nix v. State , 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001) (citing Ex parte
Patterson , 969 S.W.2d 16, 19 (Tex. Crim. App. 1998)). The void judgment
exception has recognized some rare situations, in which a trial court’s
judgment is accorded no respect due to a complete lack of power to render
the judgment in question. Hill v. State , 440 S.W.3d 670, 676 (Tex.
App.--Tyler 2012, no pet.) (citing Nix , 65 S.W.3d at 667). A judgment of
conviction for a crime is void only when (1) the document purporting to be a
charging instrument (i.e. indictment, information, or complaint) does not
satisfy the constitutional requisites of a charging instrument, and thus, the
trial court has no jurisdiction over the defendant, (2) the trial court lacks
subject matter jurisdiction over the offense charged, such as when a
misdemeanor involving official misconduct is tried in a county court at law,
(3) the record reflects that there is no evidence to support the conviction, or
(4) an indigent defendant is required to face criminal trial proceedings
without appointed counsel when the right to counsel has not been waived. id (citing Nix , 65 S.W.3d at 668). A guilty plea is some evidence to
support a conviction. id (citing Nix , 65 S.W.3d at 668 n. 14).
C. The Judgment of Conviction for Count 2 Was Not Void. In the present case, the trial court’s judgment of conviction for count 2 *24 was not void because this Court rejected a similar argument in Joshua David
Stevens v. The State of Texas , No. 06-05-00235-CR, 2006 Tex. App. LEXIS
3671 (Tex. App.--Texarkana May 2, 2006, pet. ref’d) (mem. op., not
designated for publication) (Carter, J.). In Stevens , an unpublished opinion,
the appellant argued that the trial court lacked jurisdiction because the
indictment was so defective as to be a non-indictment. See id ., 2006 Tex.
App. LEXIS 3671, at * 3-4.
In Stevens , the indictment alleged a compound (3,4-methyldioxy methamphetamine) that was misspelled and, thus, was not listed in the Texas
Controlled Substances Act. id ., 2006 Tex. App. LEXIS 3671, at * 4. In
Stevens , the compound in the Texas Health and Safety Code contained the
letters “ene,” which were not included in the indictment that formed the
basis for the appellant’s conviction. id . Thus, the issue in Stevens was
whether the omission of the letters “ene” prevented the charging instrument
from describing the crime with enough clarity and specificity to identify the
relevant penal statute. id ., 2006 Tex. App. LEXIS 3671, at * 7.
In Stevens , this Court resolved that although the indictment misspelled the scientific name of the controlled substance, the indictment provided
sufficient notice to the defendant. id ., 2006 Tex. App. LEXIS 3671, at *
8. In general, this Court reasoned that the mere misspelling of a name did
not prevent an indictment from alleging an offense, provided the indictment
nevertheless provided the necessary notice of the statutory offense. id .
In Stevens , this Court further reasoned that:
Given the similarity between the names of the compounds and that the indictment clearly provides Stevens was accused of delivery of a controlled substance, no reasonable person would have been confused that the State was alleging delivery of a controlled substance listed in penalty group 2 of the Texas Controlled Substances Act. Such a conclusion is particularly true when one considers that scientific names appear excessively complex to most laymen. The indictment, even with the misspelled word, accused Stevens of a crime with enough clarity and specificity to identify the penal statute under which the State intended to prosecute. As such, Stevens was not deprived of the screening function of a grand jury. The typographical error in the spelling of the scientific name of the compound is not sufficient to deprive Stevens notice of the crime of which he was accused or to deprive the trial court of jurisdiction.
Id ., 2006 Tex. App. LEXIS 3671, at * 8-9 (reference to footnote omitted).
In applying the Stevens rationale to the allegations in count 2 (CR, pg. 7), the mere misspelling of a scientific name did not prevent the indictment
from alleging an offense. id , 2006 Tex. App. LEXIS 3671, at * 8. In the
present case, the State’s indictment omitted the numbers “3,4-” before the
precise name of the scientific compound in section 481.103(a) of the Texas
Health and Safety Code Annotated. State v. Mazuca , 375 S.W.3d 294,
296 n. 2 (Tex. Crim. App. 2012) (“Penalty Group 2 consists of [ inter alia ]
3,4-methylendioxy methamphetamine”), cert . denied , ___ U.S. ___, 133
S.Ct. 1724, 185 L.Ed.2d 789 (2013). But, this omission was not fatal.
Here, as in Stevens , no reasonable person would have been confused that the State was alleging delivery of a controlled substance listed in
penalty group 2 of the Texas Controlled Substances Act. Stevens , 2006
Tex. App. LEXIS 3671, at * 9. The indictment, even with the missing “3,4-”
missing numbers, accused Brenes of a crime with enough clarity and
specificity to identify the penal statute under which the State intended to
prosecute. id ; CR, pg. 6. The typographical error in the exact scientific
name of the compound was not sufficient to deprive Brenes notice of the
crime of which he was accused, or to deprive the trial court of jurisdiction. id .
Based on the rationale expressed above, Brenes could not prove the void judgment exception. Therefore, the appellant’s first issue/point of error
should be overruled.
ISSUE/POINT OF ERROR IN REPLY NO. 2: ASSUMING THE
APPELLANT PRESERVED ERROR, THE TRIAL COURT DID NOT
ERR IN SENTENCING THE APPELLANT WITHIN THE
APPLICABLE RANGE OF PUNISHMENT FOR A FIRST DEGREE
FELONY.
A. Introduction.
With his second issue, Brenes alleged that his sentences were illegal, and that he should be entitled to have his plea bargain set aside and/or to
withdraw his guilty plea. Appellant’s Brief, pgs. 28-41. In the present
case, the appellant’s entire argument on appeal did not comport with any
objection during the proceedings in the trial court on June 19, 2015. See
Tex. R. App. P. 33.1(a). Also, the appellant’s motion for new trial (CR, pgs.
116-117) did not specifically object to illegal sentences, if any. Tex. R.
App. P. 33.1(a).
However, “[a] trial or appellate court which otherwise has jurisdiction over a criminal conviction may always notice and correct an illegal
sentence.” Mizell v. State , 119 S.W.3d 804, 806 n. 6 (Tex. Crim. App.
2003) (citing Ex parte Pena , 71 S.W.3d 336, 336-37 n. 1 (Tex. Crim. App.
2002)). Thus, the State will respond to the appellant’s complaint(s).
B. In the Present Case, the State’s Indictment Alleged a First Degree Felony in Count Two, Regardless of the Other Allegations.
In the present case, the State’s indictment alleged a first degree felony *28 in count two. CR, pg. 7; Mazuca , 375 S.W.3d at 296 (“[t]he appellee
was indicted for the offense of possession with intent to deliver more than
four but less than 400 grams of methylenedioxy methamphetamine,
popularly known as ecstasy, a first degree felony offense.”). Regardless of
the enhancement paragraph or the drug-free-zone allegations that the State
eventually waived or abandoned (RR, Vol. 2, pg. 4), the State’s indictment
alleged a first degree felony, not a lesser-degree of felony. The State’s
indictment specifically identified section 481.113 of the Texas Health &
Safety Code. CR, pg. 6.
Subsection (d) in section 481.113 of the Texas Health and Safety Code Annotated provided that “[a]n offense under Subsection (a) is a felony
of the first degree if the amount of the controlled substance to which the
offense applies is, by aggregate weight, including adulterants or dilutants,
four grams or more but less than 400 grams.” Tex. Health & Safety
Code Ann. § 481.113(d) (West 2006). As a first-degree felony, the
punishment range for this offense was incarceration for life or a term of five
to 99 years, and a fine of up to $ 10,000. Tex. Penal Code Ann. § 12.32
(West 2006).
C. At the Time of Accepting the Appellant’s Plea, the Trial
Court Pronounced the Correct Range of Punishment. At the time of the appellant’s plea on June 19 th , the trial court pronounced the following:
In count two you’re charged with possession with intent to deliver a controlled substance, more commonly known as ecstasy, four grams but less than 400 grams. That is a first- degree felony -- excuse me -- as a repeat offender. Carries with it a range of punishment of up to life or 99 years in prison and a $10,000 fine.
Mr. Brenes, do you understand what you’re charged with and the range of punishment in each of these counts?
THE DEFENDANT: Yes, Your Honor. RR, Vol. 2, pgs. 5-6. Later, the trial court accepted the appellant’s pleas of “guilty” and “true” and found Brenes guilty beyond a reasonable doubt. RR, Vol. 2,
pgs. 8-9. The trial court sentenced Brenes in count 2 to “25 years in TDC,
and, again, I’ll note for the record that the drug-free zone allegation has been
abandoned.” RR, Vol. 2, pg. 9.
In conclusion, the trial court’s sentence of 25 years was within a term of five to 99 years, which was the applicable range of punishment for a first
degree felony. Tex. Penal Code Ann. § 12.32 (West 2006). So, the trial
court’s sentence was not illegal, and the appellant’s second issue/point of
error should be overruled.
ISSUE/POINT OF ERROR IN REPLY NO. 3: THE TRIAL COURT
DID NOT ERR IN DENYING THE APPELLANT’S MOTION TO
SUPPRESS AND IN CONCLUDING THAT THE SEARCH OF THE
APPELLANT’S VEHICLE WAS LAWFUL BECAUSE ONCE
PROBABLE CAUSE WAS ESTABLISHED, THE OFFICERS COULD
SEARCH THE APPELLANT’S VEHICLE WITHOUT A WARRANT.
A. Standard of Review: Motion to Suppress.
This Court reviews a trial court’s decision on a motion to suppress evidence by applying a bifurcated standard of review. Graves v. State ,
307 S.W.3d 483, 489 (Tex. App.--Texarkana 2010, pet. ref’d).; Rogers v.
State , 291 S.W.3d 148, 151 (Tex. App.--Texarkana 2009, pet. ref’d).
Because the trial court is the exclusive trier of fact and judge of witness
credibility at a suppression hearing, this Court affords almost total deference
to its determination of facts supported by the record. State v. Ross , 32
S.W.3d 853, 856-57 (Tex. Crim. App. 2000); Carmouche v. State , 10
S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State , 955 S.W.2d 85,
89 (Tex. Crim. App. 1997). This Court affords the same deference to a trial
court’s rulings on mixed questions of law and fact if the resolution of those
questions turns on an evaluation of credibility and demeanor. Villarreal
v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
This Court reviews de novo the trial court’s application of the law and *31 determination of questions not turning on credibility. Carmouche , 10
S.W.3d at 327; Guzman , 955 S.W.2d at 89. Since all the evidence is viewed
in the light most favorable to the trial court’s ruling, this Court is obligated
to uphold the denial of the appellant’s motion to suppress if it was supported
by the record and was correct under any theory of law applicable to the case. Carmouche , 10 S.W.3d at 327; State v. Ballard , 987 S.W.2d 889, 891
(Tex. Crim. App. 1999). The trial court’s evidentiary ruling “will be upheld
on appeal if it is correct on any theory of law that finds support in the
record.” Flowers v. State , 438 S.W.3d 86, 107 (Tex. App.--Texarkana
2014, pet. ref’d) (citing Gonzalez v. State , 195 S.W.3d 114, 126 (Tex. Crim.
App. 2006); Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).
B. Application of the Standard of Review to the Present Case. 1. Using a False Pretense, Namely, an Orchestrated Entreaty. a. Brenes Waived this Argument, On Appeal.
Initially, Brenes complained that the police gained access to his vehicle by “using a false pretense, namely, an orchestrated entreaty by
Appellant’s acquaintance to come to the residence and bring her some
marijuana.” Appellant’s Brief, pgs. 45-46. If a “false pretense” was
alleged to have induced the commission of a crime, that argument should
have been made in the trial court below in order to comport with the
argument on appeal. Tex. R. App. P. 33.1(a). But, that was not the case
here, and Brenes has waived his complaint(s) on appeal. id .
b. If Applicable, the Defense of Entrapment Was Not Raised. Assuming the alleged “false pretense” and “orchestrated entreaty” through police conduct actually induced Brenes to commit this felony
offense, the defense of entrapment required the accused to produce evidence
that he was actually induced to commit the charged offense; that is to say,
that he committed the offense “because he was induced to do so.” See
England v. State , 887 S.W.2d 902, 913 (Tex. Crim. App. 1994); Tex. Penal
Code Ann. § 8.06 (West 2011). But again, that defense was not raised in the
trial court below. Tex. R. App. P. 33.1(a).
2. Brenes Had No Reasonable Expectation of Privacy in What He Knowingly Exposed in Langston’s Home, or in What Deaton Might
Reveal.
In Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), the United States Supreme Court observed that “[w]hat a person
knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.” id . at 351. Further, the
Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a
person to whom he voluntarily confides his wrongdoing will not reveal it.”
See Hoffa v. United States , 385 U.S. 293, 302; 87 S. Ct. 408; 17 L. Ed. 2d
374 (1966). See also People v. Catania , 427 Mich. 447, 465-66; 398
N.W.2d 343, 351-52 (1986).
After Detective Foreman asked Langston for consent to search, which she gave (RR, Vol. 1, pgs. 14, 42, 67, 87), the officers found the remnants of
marijuana packaging in Deaton’s room. RR, Vol. 1, pgs. 15, 22, 67, 72,
88. When Detective Foreman confronted Deaton about what was found in
her room (RR, Vol. 1, pg. 50), Deaton told him that “Brenes was her
marijuana supplier. He had brought marijuana to that location, 2331, the
previous date.” RR, Vol. 1, pg. 17; CR, pg. 106 (finding of fact # 8).
Thus, previously, Brenes had “voluntarily confided his wrongdoing” to
Deaton, who later revealed that “[s]he had helped him package marijuana in
smaller amounts.” RR, Vol. 1, pg. 17; CR, pg. 106 (finding of fact # 8).
In addition to “voluntarily confid[ing] his wrongdoing,” Brenes had no reasonable expectation of privacy in what he knowingly exposed to the
public in Langston’s home or office. Katz , 389 U.S. at 351. Further, the
Fourth Amendment did not, and would not, protect the appellant’s misplaced
belief that Deaton would not reveal his previous wrongdoing to the police.
See Hoffa , 385 U.S. at 302.
Accordingly, the trial court did not err in denying the appellant’s motion to suppress because Brenes had no reasonable expectation of privacy
in what he knowingly exposed in Langston’s home, or in what Deaton might
reveal about his previous wrongdoing. See id . Thus, the appellant’s
argument as to “false pretense” or “orchestrated entreaty” should be rejected. id .
3. Once Probable Cause Was Established, Detective Foreman
Could Search the Green Toyota Without a Warrant. In his brief, Brenes alleged that no exception to the warrant requirement was shown in this case. Appellant’s Brief, pgs. 42, 44. As
the trial court concluded (CR, pg. 111), however, “[a] vehicle lawfully in
police custody may be searched on the basis of probable cause to believe
that it contains contraband, and there is no requirement of exigent
circumstances to justify such a warrantless search.” State v. Guzman ,
959 S.W.2d 631, 634 (Tex. Crim. App. 1998) (quoting United States v.
Johns , 469 U.S. 478, 484; 105 S.Ct. 881, 83 L.Ed.2d 890 (1985)).
“There is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure.” Johns , 469 U.S. at 484.
So, a warrantless search of the green Toyota could occur before a lawful
seizure. id .
“[T]he police may lawfully search an automobile if they have probable cause to believe that the vehicle contains evidence of a crime.” See
Neal v. State , 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), cert . denied ,
555 U.S. 1154, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009). “Once probable
cause to believe that the car contained evidence of a crime was established,
the officers could conduct a valid search of the car immediately, without a
warrant.” Amos v. State , 819 S.W.2d 156, 161 (Tex. Crim. App. 1991),
cert. denied , 504 U.S. 917, 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992).
Probable cause to search exists when there is a “fair probability” of finding
inculpatory evidence at the location being searched. Neal , 256 S.W.3d
at 282.
The odor of marijuana alone was sufficient to constitute probable cause to search a defendant’s person, vehicle or objects within the vehicle. , e . g ., Harris v. State , 468 S.W.3d 248, 255 (Tex. App.--Texarkana 2015,
no pet.); Hitchcock v. State , 118 S.W.3d 844, 851 (Tex. App.--Texarkana
2003, pet. ref’d); Hernandez v. State , 867 S.W. 900, 907 (Tex. App.--
Texarkana 1993, no pet.).
Analysis of probable cause is based on a “totality of the *36 circumstances” test. See Gant v. State , 116 S.W.3d 124, 134 (Tex. App.--
Tyler 2003, pet. ref’d). In order to temporarily detain an individual for
investigation, an officer need only articulate specific facts which, taken
together with rational inferences from those facts, give rise to a reasonable
suspicion of criminally related activity. id . at 134-35.
In the present case, Detective Foreman articulated specific facts that were known to him prior to the appellant’s arrival at Langston’s home. See
id ; CR, pgs. 109-110 (conclusion of law # 10, i through x). Based on those
specific facts, which were corroborated when Brenes then pulled up in a
green Toyota (RR, Vol. 1, pgs. 19, 22, 91), Detective Foreman had
developed reasonable suspicion of criminally related activity. Gant , 116
S.W.3d at 134-35. While Brenes was lawfully detained, as the trial court
concluded (CR, pg. 108), Detective Foreman testified that he went outside to
the green Toyota, and the vehicle had the driver’s side window open. See
RR, Vol. 1, pgs. 20, 58. Detective Foreman could smell marijuana (RR,
Vol. 1, pg. 20), which he described as a “strong smell.” RR, Vol. 1, pg.
22. Based on his training, Detective Foreman then searched the vehicle
without a warrant. RR, Vol. 1, pgs. 20-21, 58.
Based on the totality of the circumstances, including the smell of *37 marijuana, probable cause existed to search the appellant’s vehicle without a
warrant. Gant , 116 S.W.3d at 134-35; Harris , 468 S.W.3d at 255;
Hitchcock , 118 S.W.3d at 851; Hernandez , 867 S.W. at 907. Once probable
cause existed, Detective Foreman could conduct a valid search of the car
immediately, without a warrant. Amos , 819 S.W.2d at 161.
Because sufficient probable cause existed, the trial court did not err in concluding that the search of the appellant’s vehicle was lawful. CR, pg.
111 (conclusion of law # 17). Accordingly, the trial court did not err in
denying the appellant’s motion to suppress, and the appellant’s third
issue/point of error should be overruled.
ISSUE/POINT OF ERROR IN REPLY NO. 4: THE TRIAL COURT
DID NOT ERR IN ACCEPTING THE APPELLANT’S GUILTY PLEA
BECAUSE BRENES WAIVED ANY COMPLAINT AS TO THE
ADMISSIBILITY OF HIS RECORDED STATEMENT BY FAILING
TO SPECIFICALLY OBJECT ON THE BASIS OF ARTICLE 38.22
OF THE TEXAS CODE OF CRIMINAL PROCEDURE;
ALTERNATIVELY, THE APPELLANT (BRENES) COULD NOT
SHOW ANY HARM.
A. Introduction.
With his final issue/point of error, Brenes alleged that the trial court erred in accepting his guilty plea without first ruling that the recording of his
statement at the Paris Police Department was inadmissible. Appellant’s
Brief, pgs. 60, et . seq . In this regard, however, Brenes waived any complaint
as to the admissibility of his recorded statement by failing to specifically
object on the basis of article 38.22 of the Texas Code of Criminal Procedure. Tex. R. App. P. 33.1(a).
B. The Failure to Object Constituted a Waiver of Any Error. In Pina v. State , 38 S.W.3d 730 (Tex. App.--Texarkana 2001, pet. ref’d), a murder case involving “statements” under article 38.22, this Court
held the following:
In order to complain of an error in admitting evidence offered by the State, the defendant must preserve his claimed error by timely and properly objecting and obtaining a ruling from the court on the objection. The defendant must state specifically the basis for the objection unless the particular ground is apparent from the context. Ethington v. State , 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). The objection must be made at the earliest opportunity, and the point of error on appeal must correspond to the objection raised at trial. Martinez v. State , 867 S.W.2d 30, 35 (Tex. Crim. App. 1993). Defense counsel did not object to Warren’s earlier testimony on the Article 38.22 grounds that are raised in this appeal. This failure to object at the first opportunity constitute a waiver of the error. Pina , 38 S.W.3d at 736. As in Pina , any specific objection on the basis of article 38.22 of the Texas Code of Criminal Procedure was not made at the earliest opportunity
by Brenes. Pina , 38 S.W.3d at 736. Also, the appellant’s fourth and
final issue/point of error did not correspond to any objection raised at trial. id . Even if Brenes had timely and specifically objected, he did not re-
assert that objection at the time of his guilty plea on June 19, 2015. See
generally RR, Vol. 2, pgs. 4-9.
C. Harmless Error.
Even assuming a violation of article 38.22 of the Texas Code of Criminal Procedure, Brenes could not show any harm. Tex. R. App. P.
44.2(b). In his brief, Brenes contended that “[i]f this Court decides to
remand this case for trial, then it should provide the necessary guidance on
the issue so that error does not creep back into the case[,] [and] [t]he State
may otherwise decide to withdraw its concession.” Appellant’s Brief,
pg. 62.
During the June 19 th hearing, however, the trial court specifically ruled that “the State has forever abandoned the use of the Defendant’s
statement to Leigh Foreman in any capacity, and that the State will not file
any bail jumping or failure to appear charges against the Defendant.” See
RR, Vol. 2, pgs. 9-10. So, Brenes could not show any harm as to the
recording of his statement at the Paris Police Department because the State
had “forever abandoned” the use of the statement “in any capacity.” See
RR, Vol. 2, pgs. 9-10.
In the further alternative, Brenes could not show any harm because there was sufficient evidence of the appellant’s guilt without the use of any
recorded statement. For the reasons above, Brenes could not show any
harm, and the appellant’s final issue/point of error should be overruled.
PRAYER WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that upon final submission of the above-styled and numbered cause without
oral argument, this Court affirm the trial court’s final judgment of conviction
in all respects; adjudge court costs against the appellant; and for such other
and further relief, both at law and in equity, to which it may be justly and
legally entitled.
Respectfully submitted, Gary D. Young
Lamar County & District Attorney Lamar County Courthouse 119 North Main
Paris, Texas 75460 (903) 737-2470
(903) 737-2455 (fax) By:________________________________ Gary D. Young, County Attorney SBN# 00785298
gyoung@co.lamar.tx.us ATTORNEYS FOR THE STATE OF TEXAS *41 CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the “Appellee’s (State’s) Brief” was a computer-generated document and
contained 7799 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us CERTIFICATE OF SERVICE This is to certify that in accordance with Tex. R. App. P. 9.5, a true copy of the Appellee’s (State’s) Brief has been served on the 23 rd day of
December, 2015 upon the following:
Michael Mowla
445 E. FM 1382, No. 3-718
Cedar Hill, TX 75104
michael@mowlalaw.com
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us
[1] The State would later abandon the drug-free-zone allegations. RR, Vol. 2, pg. 4.