                                                                        ACCEPTED
                                                                    06-14-00138-CR
                                                         SIXTH COURT OF APPEALS
                                                               TEXARKANA, TEXAS
                                                                5/4/2015 9:45:08 AM
                                                                   DEBBIE AUTREY
                                                                             CLERK

                  NO. 06-14-00138-CR

                IN THE COURT OF APPEALS            FILED IN
                                            6th COURT OF APPEALS
                                              TEXARKANA, TEXAS
           SIXTH APPELLATE DISTRICT OF   TEXAS
                                            5/4/2015 9:45:08 AM
                                                DEBBIE AUTREY
                   TEXARKANA, TEXAS                 Clerk




             JAIME LEE BLEDSOE, APPELLANT

                          VS.

             THE STATE OF TEXAS, APPELLEE



         APPEALED FROM THE 71ST DISTRICT COURT

                HARRISON COUNTY, TEXAS

               TRIAL COURT NO. 12-0374X



                   APPELLEE’S BRIEF

Jonathan Hyatt
Assistant District Attorney
State Bar No. 24072161
Harrison County District Attorney’s Office
200 West Houston Street
Marshall, Texas 75670
Telephone: 903 935-8408
Facsimile: 903 938-9312
jonh@co.harrison.tx.us

ATTORNEY FOR APPELLEE
STATE OF TEXAS

                                                               1
            IDENTITY OF PARTIES AND COUNSEL

Appellant:
    Jamie Lee Bledsoe, Inmate #1945574
    Wynne Unit
    810 FM 2821
    Huntsville, Texas 77349

Appellant’s Standby Trial Counsel
    Cheryl Cooper-Sammons
    P.O. Box 8517
    Marshall, Texas 75671

State’s Trial Counsel
    Shawn Connally
    Harrison County District Attorney’s Office
    P.O. Box 776
    Marshall, Texas 75670

Trial Judge
    Hon. Brad Morin
    71st Judicial District Court
    200 West Houston, Suite 219
    Marshall, Texas 75670

Appellant’s Counsel on Appeal
    Ebb Mobley
    P.O. Box 2309
    Longview, Texas 75606

State’s Counsel on Appeal:
    Jonathan Hyatt
    Harrison County District Attorney’s Office
    P.O. Box 776
    Marshall, Texas 75670




                                                 2
                     TABLE OF CONTENTS

Cover Page                                         1

Identity of Parties and Counsel                    2

Table of Contents                                  3

Index of Authorities                               4

Issues Presented                                   6

Statement of the Case                              7

Statement of Facts                                 8

Issue One: The enhancement of Appellant’s punishment
complies with statutory guidelines and is therefore
legally valid.                                      10
    Standard of Review                              10
    Statutory Framework                             11
    Argument                                        12

Issue Two:   Searches conducted and evidence seized
from the motel room used against the Appellant at trial
were legally obtained and did not violate Appellant’s
Fourth Amendment Rights                             16
    Standard of Review                              16
    Warrants/Consent in Question                    17
    Law Enforcement Legally Justified to Seize Shirt
    Without Warrant                                 17
    Appellant Consent to Search                     20
    Warrant Errors Insufficient to Invalidate Warrant24

Prayer for Relief                                  27

Certificate of Compliance                          28

Certificate of Service                             28


                                                         3
                  INDEX OF AUTHORITIES

Case Law

Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991)     10

Carmen v. State, 358 S.W.3d 285 (Tex.Crim.App.2000)     18

Harris v. State, 359 S.W.3d 625, 629 (Tex.Crim.App.
    2011)                                               10

Horton v. California, 496 U.S. 128 (1990)               18

Jones v. State, 914 S.W.2d 675 (Tex.Ct.App.-Amarillo
    1996)                                      24,25,26

Schneckloth v. Bustamonte, 412 U.S. 218 (1978)    20,21

State v. Dixon, 206 S.W.3d 587 (Tex.Crim.App. 2006)
                                                  16,17

Tucker v. State, 369 S.W.3d 179 (Tex.Crim.App.2012)     21

United States v. Gordon, 901 F.2d 48 (5th Cir. 1990)    24

United States v. Jackson, 131 F.3d 1105 (4th Cir. 1997)
                                                      18

Valtierra v. State, 310 S.W.3d 442 (Tex.Crim.App. 2010)
                                                     16

Walter v. State, 28 S.W.3d 538 (Tex.Crim.App. 2000)    18

Yazdchi v. State, 428 S.W.3d 831 (Tex.Crim.App. 2014)
                                                        10




                                                         4
Statutes

Tex. Const., Art I, Sect. 9                             21

Tex. Penal Code Sect. 12.35(a) (Vernon 2011)      11,14,15

Tex. Penal Code Sect. 12.42(a)(2) (Vernon 2007)         15

Tex. Penal Code Sect. 12.425(b)(Vernon 2011)11,12,14,15




                                                         5
                    ISSUES PRESENTED

ISSUE ONE: The enhancement of Appellant’s punishment

complies with statutory guidelines and is therefore

legally valid.



ISSUE TWO:   Searches conducted and evidence seized from

the motel room used against the Appellant at trial were

legally obtained and did not violate Appellant’s Fourth

Amendment rights.




                                                       6
                   STATEMENT OF THE CASE

    The Appellant was charged by indictment with the

offense of Burglary of a Building (CR-2).   A

Suppression Hearing was conducted on April 14, 2014 (RR

Vol. 2).   The State filed a State’s Notice of Intent to

Seek Enhanced Punishment Due to Prior Conviction on May

8, 2014, alleging prior convictions in cause number 99-

0124x and 08-177x(CR 138-9).   Voir dire commenced on

July 21, 2014 with the trial on merits beginning

immediately afterwards (RR Vol.3).   At the conclusion

of the guilt/innocence phase, the Appellant was found

guilty (CR-224).   The punishment phase began and the

Appellant pled “Not True” to the enhancement

allegations (5 RR 18-19).   At the conclusion of the

punishment phase, the jury found the enhancements to be

true and sentenced the Appellant to 20 years in the

Institutional Division of the Texas Department of

Criminal Justice with a $10,000 fine (CR-224).




                                                         7
                   STATEMENT OF FACTS

    On July 16, 2012, Brad Horn, the Manager at Fish &

Still Equipment arrived at work to discover that a

Burglary had occurred at his place of business(3 RR

100).   Horn called law enforcement and upon reviewing

surveillance material, the investigating officers

recognized the Defendant (3 RR 127).    Officers

investigated the crime scene and went by neighboring

businesses, discovering additional surveillance videos

with an individual that they identified as the

Defendant at a time that was proximate to the alleged

Burglary (3 RR 118).   After securing an arrest warrant,

officers with the Marshall Police Department scoured

local motels and eventually discovered that the

Defendant was staying at the local Motel 6 (3 RR 135).

Officers went to the motel where the Defendant was

residing, knocked on his door, and when he answered

they arrested him on a felony warrant and secured the

premises (3 RR 120).   While arresting the Defendant,

law enforcement saw in plain view a shirt on the floor


                                                         8
of the Defendant’s motel room that matched the shirt

the alleged burglar was wearing on the videos they had

previously seen (3 RR 140).   Subsequent to arrest,

officers obtained a signed consent from the Defendant

to search his motel room (3 RR 140).   In addition to

the signed consent, officers obtained a magistrate’s

signature on a search warrant to search the motel room,

specifying seeing the shirt in the motel room in the

supporting affidavit (3 RR 140).   Upon returning to the

secured motel room, law enforcement retrieved the

Defendant’s shirt (4 RR 9).   Law enforcement then

secured a second warrant to obtain the Defendant’s DNA,

retrieved such DNA via a mouth swab and had it analyzed

by DPS (4 RR 85).




                                                         9
ISSUE ONE: The enhancement of Appellant’s punishment

complies with statutory guidelines and is therefore

legally valid.

                  STANDARD OF REVIEW

    In reviewing a lower court’s interpretation of a

statute, the standard of review for appellate courts is

de novo. Yazdchi v. State, 428 S.W.3d 831

(Tex.App.Crim. 2014).   “In construing a statute, the

court must seek to effectuate the collective intent or

purpose of the legislators who enacted the

legislation.” Yazdchi citing Harris v. State, 359

S.W.3d 625, 629 (Tex.Crim.App.2011).   As Boykin

emphasizes, “When attempting to discern this collective

legislative intent or purpose, we necessarily focus our

attention on the literal text of the statute in

question and attempt to discern the fair, objective

meaning of that text at the time of its enactment,”

Boykin v. State, 818 S.W.2d 782 (Tex.App.Crim. 1991).




                                                        10
    As such, a literal application of the enhancement

statute to the case at hand leads to the conclusion

that Mr. Bledsoe was enhanced properly.

                   Statutory Framework

Appellant’s sentence is lawful because it meets the

requirements of § 12.425(b).   That specific section of

the Texas Penal Code reads:

    If it is shown on the trial of a state jail felony
    punishable under Section 12.35(a) that the
    defendant has previously been finally convicted of
    two felonies other than a state jail felony
    punishable under Section 12.35(a), and the second
    previous felony conviction is for an offense that
    occurred subsequent to the first previous
    conviction having become final, on conviction the
    defendant shall be punished for a felony of the
    second degree. Tex. Penal Code § 12.425(b)(Vernon
    2011)

The only outside reference that this section makes is

to § 12.35(a).   § 12.35(a), the Penal Code provision

that speaks to the range of punishment for a State Jail

Felony, reads:

    Except as provided by Subsection (c), an individual
    adjudged guilty of a state jail felony shall be
    punished by confinement in a state jail for any
    term of not more than two years or less than 180
    days. Tex. Penal Code § 12.35(a)(Vernon 2011)


                                                        11
                        Argument

    The Defendant plead “Not True” to the enhancement

allegations during the punishment portion of trial (5

RR 18-9).   As contained in the Exhibit Index, Exhibits

50 and 51, the Judgements from Appellant’s previous

convictions in cause numbers 08-0177x and 99-0124x,

respectively, were entered with no objection from the

Defense (Vol. 5, p. 10-11).    After deliberations, the

jury found the enhancement allegations to be true and

sentenced Appellant to the maximum of 20 years

confinement and a $10,000 fine (Vol. 5, p. 32).

    The requirements of §12.425(b) of the Texas Penal

Code is that any two sequential felony convictions that

were not punished as State Jail Felonies may be alleged

to enhance a State Jail Felony’s punishment range to

that of a Second Degree Felony.    After being admitted

with no objection by the Defense, a closer look at the

judgments reveals that they occurred sequentially.

    With respect to the first enhancement allegation,

in Cause Number 99-0124x, exhibit 51 reveals that the


                                                          12
underlying offense in that case was Possession of a

Controlled Substance, a Second Degree Felony.

Furthermore, there are no “Findings on Enhancement” on

the face of the Judgement because it was charged and

punished as a Second Degree Felony, with Bledsoe being

sentenced to 15 year confinement.     It was signed

October 3, 2003.

    Concerning the 08-0177x enhancement allegation,

exhibit 50 reveals that it was a Burglary of a Building

enhanced to a Second Degree Felony.     As there are no

allegations that such Burglary occurred in a

Habitation, the charged offense is 08-0177x was that of

a State Jail Felony.   Bledsoe pled true to the

enhancement allegations and was sentenced to 7 years in

the Institutional Division of TDCJ after pleading

guilty on January 26, 2009.

    Appellant argues that because 08-0177x was for an

underlying State Jail offense, that the Court cannot

use said conviction for purposes of a 12.425(b)

enhancement. Appellee must respectfully disagree.


                                                          13
Applying the de novo standard of review and reading the

plain text of the statute reveals that 12.425(b) states

“If it is shown on the trial of a state jail felony …

that the defendant has previously been finally

convicted of two felonies other than a state jail

felony punishable under Section 12.35(a)…” (emphasis

added).   Having sequential State Jail convictions is

not enough to meet the requirements of 12.425(b).    The

sequential felonies must not have been punished as

State Jail offenses.   For purposes of this statutory

section, the underlying felony conviction is not as

important as the punishment assessed for said felony.

The two convictions used to enhance Appellant were

punished as Second Degree felonies.   Because the two

enhancement convictions were felonies, sequential and

not punished as State Jail Felonies, the charged State

Jail Felony must be enhanced to a Second Degree

punishment.

          Appellant cites numerous cases and the specific

Texas Penal Code section 12.42(a)(2) in his arguments.


                                                        14
He contends that applying the 12.42(a)(2) standard to

his case shows that the underlying State Jail Felony

conviction from 08-0177x that the State used to enhance

him is improper.   Unfortunately for Appellant, the law

changed.   Texas Penal Code section 12.42(a)(2) reads:

    If it is shown on the trial of a state jail felony
    punishable under Section 12.35(a) that the
    defendant has previously been finally convicted of
    two felonies, and the second previous felony
    conviction is for an offense that occurred
    subsequent to the first previous conviction having
    become final, on conviction the defendant shall be
    punished for a second-degree felony. Tex. Penal
    Code Sect. 12.42(a)(2)(Vernon 2007)

In 2011, the Legislature amended the statutes, adding

Texas Penal Code Section 12.425, a specific provision

dictating “Penalties for Repeat & Habitual Felony

Offenders on Trial for State Jail Felony.”   As

previously noted, the new, current law emphasizes

punishment as opposed to conviction.   As such, Mr.

Bledsoe’s contention that his underlying 08-0177x State

Jail conviction can’t be used to enhance him to a

Second Degree Felony is improper.




                                                         15
ISSUE TWO:   Searches conducted and evidence seized from

the motel room used against the Appellant at trial were

legally obtained and did not violate Appellant’s Fourth

Amendment rights.

                    STANDARD OF REVIEW

    The Court reviews a trial court’s ruling on a

motion to suppress evidence under a bifurcated standard

of review.   Valtierra v. State, 310 S.W.3d 442, 447

(Tex.Crim.App. 2010).

    First, the court applies an abuse of discretion

standard to the trial court’s findings of fact.

State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.

2006).   Affording almost total deference to the

trial court’s findings, especially those based on an

evaluation of the witnesses’ credibility and demeanor.

Valtierra, 310 S.W.3d at 447.   Second, the court

reviews de novo the trial court’s application of the

law to the facts.   Id.   Should the court determine that

the ruling is reasonably supported by the record and




                                                       16
its correct on any theory of law, the lower court’s

ruling will be affirmed.   Id. at 447.

              WARRANTS/CONSENTS IN QUESTION

    There are three areas where the Appellant raises

issues with respect to warrants/consents in the instant

case.   Going in the order in which they occurred, the

Appellant (1) signed a consent to search his motel

room, (2) law enforcement obtained a search warrant and

searched the motel room, and (3) law enforcement

obtained a warrant for DNA on the shirt seized during

the previous warrant search.    At various points in his

appeal and at trial, Appellant attacks these three

issues, but for purposes of clarity, Appellee is

combining the response to these complaints.

   LAW ENFORCEMENT LEGALLY JUSTIFIED TO SEIZE SHIRT
                    WITHOUT WARRANT

    In the instant case, law enforcement was within its

bounds to seize the shirt (evidence of a crime), at the

time it was first observed.    Under the Plain-View

Doctrine, appellate courts apply a two-prong test to

determine whether seizure of an item meets the

                                                         17
requirements of the exception to the Fourth Amendment’s

warrant requirement.   “First, the police must have a

right to be in the location where the article is in

plain view.   Second the article found in plain view

must be evidence that leads the police to have the

immediately apparent belief that the article may be

evidence of a crime, contraband, or otherwise subject

to seizure.” Carmen v. State, 358 S.W.3d 285, 294

(Tex.App.-Houston 2011) (citing Walter v. State, 28

S.W.3d 538 (Tex.Crim.App.2000))(also citing Horton v.

California, 496 U.S. 128, 133 (1990)).   Said limitation

on items that may be seized are confined to objects

that are “perceived to be contraband, stolen property,

or incriminating in character” U.S. v. Jackson, 131

F.3d 1105 (4th Cir. 1997), (citing Horton v.

California, 496 U.S. 128, 136 (1990)).

    At the time the Appellant was arrested, law

enforcement was exercising a lawful arrest warrant. The

legality of the underlying arrest warrant was not




                                                        18
attacked; therefore, the Court should conclude that the

arrest warrant was valid.

       With respect to the two prong approach to the

validity of the Plain-View Doctrine, law enforcement

was present due to a valid arrest warrant.    Law

enforcement knocked on Bledsoe’s motel room door with a

valid arrest warrant and when he opened the door, they

saw on the floor, the shirt he had worn while

committing the burglary they were investigating (2 R.R.

19).    Having been at the location with a legal

justification, we must now examine the second prong:

the evidence in plain-view must be evidence of a crime

(amongst other things).    As stated previously, the

shirt seized was used as justification to obtain the

search warrant.    This shirt was the same shirt that DNA

analysis later concluded was the one worn by the

Defendant.    Furthermore, it is the same shirt that law

enforcement discussed at the Suppression Hearing and

later at trial.    Applying the bifurcated standard of

review’s abuse of discretion prong, giving the Court


                                                         19
deference with respect to the reliability of the

witnesses, this Court should allow for the fact that

law enforcement knew what they saw, and that what they

saw was the shirt later described in the warrant.

Applying this evidence to the law with the standard of

review’s de novo prong reveals that the theory of the

law relied upon by the Prosecution was valid.   This

discussion is beside the point because out of an

abundance of caution, law enforcement received consent

and obtained a warrant to seize the shirt.



           APPELLANT CONSENTED TO THE SEARCH

    Appellant’s consent to the search of his motel room

trumps any error that may or may not have been made in

the warrant to search his motel room.   Whether applying

the Supreme Court’s requirement for consent, requiring

that consent be voluntary and intelligent as proved by

a preponderance of evidence Schneckloth v. Bustamonte,

412 U.S. 218 (1978) or the Texas Constitution’s

requirement that consent must be proved by clear and


                                                        20
convincing evidence, Tex. Const., art. I, Sect. 9, the

evidence presented at trial was clear: Bledsoe

consented to the search of his motel room.   When

determining whether consent was voluntary, the Court

looks at several factors.   Taking a totality of the

circumstances approach, Courts look at factors

including:

    Whether the accused was advised of his
    constitutional rights, the length of the detention,
    whether the questioning was repetitive or
    prolonged, whether the accused was aware that he
    could decline to answer the questions, and what
    kind of psychological impact the questioning had on
    the accused. Tucker v. State, 369 S.W. 3d 179
    (Tex.Crim.App. 2012) citing Schneckloth v.
    Bustamonte, 412 U.S. at 226-27 (1978).

Applying these factors to the case at hand, the only

reasonable conclusion is that Bledsoe knew what he was

doing.   Testimony indicated that consent was received

fairly quickly, so the length of detention was minimal.

According to the officer that received consent, 20

minutes transpired from the time that Bledsoe was

arrested, transported to the Harrison County Jail,

taken to an interrogation room and consented to the


                                                         21
search (2 R.R. 24).   As such, the length of

interrogation along with the transportation to the jail

was anything but lengthy.    Furthermore, due to the

short length of time in the actual interrogation room,

it would be impossible for the questioning to be very

repetitive.   With respect to the Appellant’s ability to

understand what was going on, we must bear in mind that

the Appellant is a hardened career criminal with the

intelligence and ability to write and brief cases.     The

criminal was mirandized and due to his prior brush-ins

with law enforcement, was savvy to the process.    The

Defendant knew he could decline consent and as such, it

is highly unlikely that this sort of a detention would

have any psychological impact on the Defendant.

    As proven in testimony and the video played at

trial, Mr. Bledsoe signed away his right to complain

about the search (2 RR 8).    Additionally, during the

Suppression hearing of this case, the Court had an

opportunity to review said consent and gauge the

credibility of the testifying witnesses before


                                                         22
ultimately coming to the conclusion that Bledsoe knew

what he was doing when he signed the consent.     Bledsoe

even testified at the Suppression.   Applying the bi-

furcated standard of review, the abuse of discretion

hurdle requires that deference be given to the trial

court’s analysis of the evidence presented.   At trial,

Appellant had an opportunity to examine/cross-examine

law enforcement at both the Suppression hearing and at

trial.   Based on the evidence presented: recorded

consent video and testimony from the officers that

received consent, the trial court determined that based

on the credibility of the witnesses and the consent of

the defendant himself, the consent was valid.   Moving

onto the de novo prong, the theory of the law in cases

involving consent shows that there was adequate

evidence to substantiate the Trial Court’s denial of

Appellant’s Motion to Suppress.




                                                         23
 WARRANT ERRORS INSUFFICIENT TO INVALIDATE THE WARRANT

    Appellant contends that the typographical error on

the warrant justifies this Court throwing out the

Search Warrant.   Appellee respectfully disagrees.   Per

Jones v. State, in a similar case, where an apartment

number was wrong on a search warrant, the Court of

Appeals in Amarillo determined that that error alone

was insufficient to invalidate the warrant. 914 S.W.2d

675 (Tex.Ct.App.-Amarillo 1996).   Citing federal cases,

Jones states:

    federal courts have taken into account facts known
    by the executing officer but not expressly stated
    in the supporting affidavit, such as where (1) an
    officer involved in the search was the affiant to
    the search warrant's supporting affidavit, and (2)
    the evidence shows that the same officer had
    previously been to the premises considered covered
    by the warrant

citing United States v. Gordon, 901 F.2d 48, 49–50 (5th

Cir.).   In the instant case, Sgt Darryl Griffin filled

out the affidavit to get the warrant, secured the

magistrates signature to said warrant and personally

took the warrant to the motel room that was searched (4

RR 9-10).   In fact, Griffin testified to the fact that

                                                        24
he was present at the time that the premises was

secured (4 RR 9).

    Jones also cites concerns about having sufficient

information so that law enforcement searches the right

premises.   In the instant case, because of Sgt.

Griffin’s involvement from the outset of the

investigation, and his knowledge of the Defendant and

where he lived, those justifications hold in the

instant case as well.    Jones, 914 S.W.2d 675, 679.

    Applying the bifurcated standard of review, the

trial court weighted the evidence and credibility of

witnesses both at the suppression hearing and at trial

and correctly determined that law enforcement met their

Constitutional obligations.    Additionally, any error in

the warrant is nullified because of the Appellant’s

consent to the search.

    Appellee also contends that due to errors in the

DNA warrant’s description of the property, the results

should be thrown out.    The Appellant/Defendant thought

he had consented to the DNA search per his testimony at


                                                        25
the Suppression Hearing (2 R.R. 42).   The error in the

DNA warrant is analogous to any error in the initial

search warrant.   There is no threat of the DNA warrant

searching an innocent third-party’s property.    In fact,

the physical evidence had already been seized by the

state due to the previously discussed consent and

warrant.   Based on the 4-corners of the warrant, there

was probable cause to obtain a DNA sample from the

Defendant.   Whether a shirt is white, grey or light

blue is an issue best determined by the Court during

the Suppression Hearing and jury during trial.   Any

delineation in shirt color in the warrant is analogous

to a typographical error in the warrant, similar to

Jones v. State.

    In summation, Appellant’s arguments were

insufficient at his Suppression Hearing, at trial and

once again on appeal.   Attempting to circumvent his own

representation, he now seeks to invalidate a conviction

that is largely his own doing.   He burglarized a

business, consented to the search that law enforcement


                                                        26
ultimately got a warrant to conduct and thought he had

consented to a DNA search.   The findings of both the

Trial Court and Jury should be upheld.



                   PRAYER FOR RELIEF

    Based on the foregoing, the Appellee prays that the

Appellant’s points of error be overruled and judgment

be affirmed.

                         Respectfully Submitted,

                         Jonathan Hyatt
                         Assistant District Attorney
                         Harrison County District
                         Attorney’s Office
                         200 West Houston Street
                         Marshall, Texas 75670
                         Telephone: 903 935-8408
                         Facsimile: 903 938-9312

                         /s/ Jonathan Hyatt
                         Jonathan Hyatt
                         State Bar No. 24072161




                                                        27
                 CERTIFICATE OF COMPLIANCE

      I certify that this brief contains 2,857 words

according to the computer program used to prepare the

document.

                           /s/ Jonathan Hyatt
                           Jonathan Hyatt


                  CERTIFICATE OF SERVICE

      A copy of this brief was provided on May 4, 2015
to:
      Jamie Bledsoe, Inmate #1945574 by U.S. mail return
          receipt requested,
      Cheryl Cooper-Sammons via facsimile,
      Hon. Brad Morin via facsimile, and
      Ebb Mobley via facsimile.


                           /s/ Jonathan Hyatt
                           Jonathan Hyatt




                                                         28
