                                   NO. 07-07-0478-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                  NOVEMBER 21, 2008

                          ______________________________


                       ROBERT EUGENE JORDAN, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                    NO. 19143-B; HON. JOHN BOARD, PRESIDING

                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       Appellant, Robert Eugene Jordan, was convicted of the offense of murder enhanced

by one prior felony conviction and subsequently sentenced to 99 years confinement in the

Institutional Division of the Texas Department of Criminal Justice and ordered to pay a fine

of $10,000. By two issues, appellant contends that the judgment of the trial court should

be reversed. We affirm.


                           Factual and Procedural Background
       Appellant was charged with the murder of Donald White, who had been found shot

to death in Randall County. At the time the body was discovered, the deceased was

stripped of his clothing and his hands had been taped with duct tape. The record reflects

that these facts had not been disclosed to the media.           Randall County Sheriff’s

Investigator, Paul Horn, determined that William Sean Gilmore was a “person of interest”

in connection with the murder case and spoke to Gilmore at the Amarillo Police

Department on January 14, 2005. Previously, Gilmore had been arrested by Amarillo

Police on charges unrelated to the murder. Gilmore provided Horn with a written affidavit

that declared that appellant had told him that, appellant and Mark Hanson took the

deceased to a dirt road where they “ruffed him up,” stripped him naked and taped him up

with duct tape before shooting him.      Contained within Gilmore’s statement was an

assertion that Gilmore was employed at the Big O Tire store as a tire tech. This statement

became the focal point of a motion to suppress evidence subsequently filed by appellant.

On the same day, but shortly after speaking with Gilmore, Horn interviewed Bobbye Marie

Eckert, appellant’s cousin, about the murder. Eckert gave an affidavit to Horn that alleged

that appellant had told her that “he himself shot Donny.” Also contained within Eckert’s

affidavit were statements that appellant had told her about making the deceased take his

clothes off and tying the deceased up with duct tape.


       On January 18, 2005, Horn signed a complaint alleging appellant had murdered the

deceased.    Contained within the complaint was the statement made by Horn that

“defendant admitted committing this offense to William Sean Gilmore, a reputably

employed citizen who has signed a sworn affidavit to that effect . . . .” An arrest warrant


                                            2
was issued for appellant’s arrest based upon the complaint filed by Horn. Appellant

subsequently gave a written statement to Horn admitting his participation in the murder.


       Appellant filed a motion to suppress his confession alleging that the arrest and

detention were illegal and denied appellant his constitutional rights.        A hearing on

appellant’s motion to suppress was held on October 25, 2007. After hearing the evidence

relative to the issuance of the arrest warrant for appellant, the trial court overruled the

motion to suppress and the case proceeded to trial. After the jury returned a verdict of

guilty, the State proceeded to introduced evidence bearing on the issue of punishment

including testimony regarding appellant’s participation in a drive-by-shooting in Amarillo.

At the conclusion of the testimony regarding the drive-by-shooting incident, appellant

requested the trial court strike all of the testimony offered by the State regarding the

incident. The trial court denied the request and appellant’s subsequent motion for mistrial.

The jury sentenced appellant to 99 years confinement and a fine of $10,000. It is from this

judgment that appellant appeals.


       Through his two issues, appellant alleges that the trial court erred in; 1) failing to

grant the motion to suppress, and 2) allowing punishment evidence which failed to

demonstrate an offense beyond a reasonable doubt. We disagree with appellant and will

affirm the judgment.




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                                     Motion to Suppress


       Appellant’s first issue is directed to the trial court’s ruling on the motion to suppress

appellant’s statement. We review a trial court’s decision on a motion to suppress under

an abuse of discretion standard.          See Lowery v. State, 98 S.W.3d 398, 399

(Tex.App.–Amarillo 2003, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 87

(Tex.Crim.App. 1997)). A trial court abuses its discretion when its decision falls outside the

zone of reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990, op. on reh’g)). We accord almost total deference to the trial court’s

determination of historical facts, especially when those determinations turn on witnesses’

credibility or demeanor. See Neal v. State, 256 S.W.3d 264, 280 (Tex.Crim.App. 2008).

However, we review de novo the trial court’s application of law to facts not turning on

credibility or demeanor. Id.


       Appellant’s contention is that the affidavit filed by Horn, to support the issuance of

an arrest warrant, contained false statements and, therefore, appellant was permitted to

go behind the four corners of the affidavit. See Franks v. Delaware, 438 U.S. 154, 155-6,

98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The false statement, according to appellant, was

that “defendant admitted to William Sean Gilmore, a reputably employed citizen . . . .”

(emphasis added). According to appellant’s theory, the proof at the hearing to suppress

his own statement was that Gilmore was not employed at the Big O Tire store at the time

of execution of the affidavit in support of the arrest warrant and Horn knew this fact.

Further, appellant contends that Gilmore had an extensive criminal record and was in fact

under arrest for several offenses when Horn interviewed him at the Amarillo Police

                                               4
Department. Finally, appellant contends that, at the time Horn obtained the statement from

Gilmore, Horn was aware that Gilmore was a captain in the Aryan Brotherhood. Appellant

posits that, because Horn was aware of all of these facts when he signed his affidavit in

support of the arrest warrant, the trial court erred in not voiding the arrest warrant and

suppressing appellant’s statement.


       Franks stands for the proposition that if a defendant can establish that a warrant

affidavit contains false statements made either knowingly and intentionally or with reckless

disregard for the truth and that the false statement was necessary to the finding of

probable cause, then the defendant is entitled to a hearing in an attempt to suppress any

evidence subsequently gathered. Id. Texas has adopted the Franks methodology in

dealing with probable cause affidavits.        See Harris v. State, 227 S.W.3d 83, 85

(Tex.Crim.App. 2007). The record of the pre-trial hearing is unclear as to whether the trial

court required appellant to make the preliminary showing required by Franks. What is clear

is that the trial court required the State to develop, through the testimony of Horn, all of the

facts leading up to the issuance of the arrest warrant. Further, appellant was permitted to

extensively cross-examine Horn regarding all of his actions prior to obtaining the arrest

warrant. We will assume, for purposes of this opinion, that appellant made the requisite

preliminary showing and that the trial court conducted a full Franks hearing.


       Once the appellant establishes the prerequisites required to obtain a full Franks

hearing, appellant has the burden of establishing the allegation of perjury or reckless

disregard for the truth by a preponderance of the evidence. Franks, 438 U.S. at 155-56,

Harris, 227 S.W.3d at 85. It is during this proceeding that appellant may present evidence

                                               5
that goes behind the four corners of the affidavit. Cates v. State, 120 S.W.3d 352, 355 n.3

(Tex.Crim.App. 2003). If, after the hearing, the trial court determines the appellant has met

his burden of proof, the false information contained in the warrant affidavit must be

disregarded. Franks, 438 U.S. at 155-56, Harris, 227 S.W.3d at 85. If the remainder of

the affidavit does not contain sufficient probable cause to support the issuance, the warrant

is voided and any evidence obtained as a result of its issuance must be excluded. Franks,

438 U.S. at 156, Harris, 227 S.W.3d at 85.


       The record of the suppression hearing clearly shows that Gilmore told Horn he was

working as a “tire tech” at the Big O Tire store. Further, Horn testified that when he

interviewed Gilmore, Gilmore presented himself as one who might be working at a tire store

doing some sort of manual labor. Specifically, Horn testified that Gilmore had a work shirt

on similar to what you would expect such an employee to be wearing, that Gilmore’s hands

were dirty and grimy as you might expect from one working at a tire store and, Gilmore

smelled like he had been working in a garage or tire store. Appellant posits that, by the

time of his interview with Gilmore, Horn had learned that an incident report was filed by an

Amarillo Police officer stating that the manager of the Big O Tire store had informed the

officer that Gilmore did not work there. Appellant contends this information was either

known or should have been known by Horn. However, the record before us reflects that

Horn testified that the report was filed on January 17, 2005, three days after he had

obtained Gilmore’s affidavit. Further, Horn testified that he never spoke with the officer

who filed the report or even became aware of the information contained in it until after the

issuance of the arrest warrant. During the pre-trial hearing, the State produced another


                                             6
report from the Amarillo Police Department indicating that the manager of the tire store was

probably not telling the truth about his relationship with Gilmore. It is significant that

Gilmore’s affidavit contained information that was not known to the general public,

information that could have only been acquired from someone who was involved in the

commission of the murder. This information is an indicia of reliability. In addition to the

testimony regarding Gilmore’s employment and Horn’s lack of knowledge to the contrary,

the testimony at the pre-trial hearing clearly demonstrated that Horn did not act upon

Gilmore’s information until he had corroborated it by obtaining an additional affidavit from

Bobbye Marie Eckert. Eckert’s affidavit corroborated Gilmore’s in that it also contained the

same facts that were not known to the general public.


       When all of this evidence is reviewed in toto, this Court does not find that the trial

court abused its discretion and we will defer to the trial court’s reasonable belief that Horn

did not intentionally and knowingly give false information in the affidavit, nor was he guilty

of recklessly disregarding the truth. Guzman, 955 S.W.2d at 87. Rather, the totality of the

circumstances shows that Horn was unaware of the information that would seem to say

Gilmore was not employed and the State went to great lengths to corroborate the facts, as

stated in the Gilmore affidavit, regarding the commission of the offense by appellant.

Appellant failed to meet his burden of proof at the Franks hearing. Franks, 438 U.S. at

155-56, Harris, 227 S.W.3d at 85. Accordingly, appellant’s first issue is overruled.




                                              7
                          Motion to Strike Punishment Evidence


       By his second issue, appellant contends that the trial court erred in admitting

punishment evidence concerning an extraneous offense. Specifically, appellant asserts

that the trial court erred by denying appellant’s motion to strike the testimony of three

witnesses, Leona Price, Cory Richardson, and Shawn Uselding. These witnesses testified

about a drive-by-shooting that occurred on March 14, 1998, when a shotgun was fired at

the home of Leona Price.        The record reflects that, after the State had rested its

punishment evidence, appellant requested that the trial court strike the testimony of the

three named witnesses and that the jury be instructed to disregard that testimony, because

the State had failed to prove the extraneous offense beyond a reasonable doubt.


       The testimony at issue was offered after the State had filed a notice of intent to offer

evidence of “all other crimes, wrongs or acts of the defendant during the punishment phase

. . . .” See TEX . CODE CRIM . PROC . ANN . art. 37.07 sec. 3(g) (Vernon 2007).1 This notice

of intent to offer evidence of other crimes, wrongs or acts of the defendant was filed in

reply to request for notice of intent to offer evidence of extraneous crimes or bad acts filed

by appellant. In the response to the request for notice filed by appellant, the State notified

appellant that it intended to produce evidence that on or about March 14, 1998, appellant

either committed deadly conduct by discharging a firearm at a dwelling occupied by Leona

Weathersbee or acted as a party to said conduct. (Leona Weathersbee was identified at




       1
        Further reference to the Texas Criminal Procedure Code shall be by reference to
“art. ____.”

                                              8
trial as Leona Price). This evidence was offered pursuant to article 37.07 sec. 3(a) of the

Texas Code of Criminal Procedure.2 See art. 37.07 sec. 3(a).


       At the outset, we note that the decision of a trial court regarding the admissibility of

extraneous offense evidence is reviewed under an abuse of discretion standard. See

Saenz v. State, 843 S.W.2d 24, 26 (Tex.Crim.App. 1992). A trial court abuses its

discretion when its decision falls outside the zone of reasonable disagreement.

Montgomery, 810 S.W.2d at 391.


           Appellant’s issue confuses the obligations of the trial judge and the jury in

considering evidence of extraneous offenses. The trial judge has the obligation to make

a determination, upon proper request, of whether the proposed evidence is relevant to the

issue of punishment. See Nanez v. State, 179 S.W.3d 149, 151 (Tex.App.–Amarillo 2005,

no pet.), see also Banks v. State, No. 02-05-118-CR, 2006 Tex. App. LEXIS 8901

(Tex.App.–Fort Worth October 5, 2006, no pet.) (not designated for publication). In the

case before us, even though appellant had prior knowledge that the State would offer the

evidence of his involvement in the drive-by-shooting, there was no request for a hearing

to determine the admissibility of this evidence prior to the introduction of the testimony in

question. Once the evidence was before the jury, it is the duty of the jury, as the exclusive


       2
           Article 37.07 sec. 3(a) states in relevant part:

       Evidence may be offered by the state and the defendant as to any matters
       the court deems relevant to sentencing including but not limited to . . .
       evidence of an extraneous crime or bad act that is shown beyond a
       reasonable doubt by evidence to have been committed by the defendant or
       for which he could be held criminally responsible, regardless of whether he
       has previously been charged with or finally convicted of the crime or act.

                                                 9
trier of fact, to determine whether the State has proven the extraneous offense or act

beyond a reasonable doubt. Nanez, 179 S.W.3d at 152. After all the punishment

evidence was presented, the trial court properly charged the jury that they could not

consider such extraneous offense or act unless “you find and believe beyond a reasonable

doubt that the defendant committed such acts or was criminally responsible as a party for

such acts.” See Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App. 2000). In this case,

the trial court did exactly what is required of it when considering the issue of extraneous

offenses or bad acts.


      Based upon the foregoing, we cannot say that the trial court abused its discretion

in refusing to strike the testimony of the three witnesses. Saenz, 843 S.W.2d at 26.

Accordingly, we overrule appellant’s second issue.


                                       Conclusion


      Having overruled appellant’s two issues, we affirm the judgment of the trial court.




                                   Mackey K. Hancock
                                        Justice

Publish.




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