                                                                               ACCEPTED
                                                                           06-17-00190-CR
                                                                 SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                         6/1/2018 11:30 PM
                                                                          DEBBIE AUTREY
                                                                                    CLERK

                   Cause No. 06-17-00190-CR

                                                           FILED IN
                                                    6th COURT OF APPEALS
                     In the Court of Appeals          TEXARKANA, TEXAS
                                                    6/4/2018 9:01:00 AM
                      Sixth District of Texas           DEBBIE AUTREY
                                                            Clerk
                        Texarkana, Texas


                CRAIG LYNDON BELL, APPELLANT
                                V.

                   STATE OF TEXAS, APPELLEE




           On Appeal from the County Court at Law
                      Panola County, Texas
                Trial Court Cause No. 2016-C-0325


                      APPELLEE’S BRIEF


                                     ______________________________
                                     GENA BUNN
ORAL ARGUMENT                        Texas Bar No. 00790323
NOT REQUESTED
                                     Gena Bunn, PLLC
                                     P.O. Box 6150
                                     Longview, Texas 75608
                                     gbunn@genabunnlaw.com
                                     (903)804-4003

                                     ATTORNEY FOR APPELLEE
                    IDENTITY OF PARTIES AND COUNSEL


Appellant                               Craig Lyndon Bell

Appellee                                State of Texas

Appellant’s Trial Counsel               Kyle Dansby
                                        SBOT No.: 24059180
                                        P.O. Box 1914
                                        Marshall, Texas 75761
                                        (903) 738-6162

Appellee’s Trial Counsel                Danny Buck Davidson
                                        SBOT No.: 0543080
                                        Katie Nielson
                                        SBOT No.: 24032791
                                        108 South Sycamore, Room 301
                                        Carthage, Texas 75633

Appellant’s Appellate Counsel           Clay Dean Thom
                                        SBOT No.: 24088520
                                        15344 West State Highway 21
                                        Douglass, Texas 75943
                                        (936) 715-7144

Appellee’s Appellate Counsel            Gena Bunn
                                        SBOT No.: 00790323
                                        P.O. Box 6150
                                        Longview, Texas 75608
                                        (903) 804-4003




                                   ii
                                             TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................... ii
INDEX OF AUTHORITIES................................................................................... iv
STATEMENT OF FACTS...................................................................................... 1
SUMMARY OF THE ARGUMENT ......................................................................... 5
ARGUMENT ...................................................................................................... 7
         I.       The trial court did not abuse its discretion by denying Bell’s
                  motion to suppress his inculpatory statements to law
                  enforcement without first reviewing the videotaped interviews
                  from which those statements were derived. ............................... 7

                  A. Bell failed to preserve error regarding the trial court’s
                     decision not to view the videotaped interviews .................. 12

                  B. Assuming the point of error was preserved, the trial court did
                     not abuse its discretion by declining to view the videos..... 14

                  C. Any error was harmless beyond a reasonable doubt........... 15

CONCLUSION AND PRAYER ............................................................................ 17
CERTIFICATE OF SERVICE ............................................................................... 18
CERTIFICATE OF COMPLIANCE ....................................................................... 18




                                                            iii
                                          INDEX OF AUTHORITIES


CASES
Arizona v. Fulminante, 499 U.S. 279 (1991). ..........................................................16
Bailey v. State, 281 S.W.3d 29 (Tex. App. – El Paso 2005) ...................................16
Bekendam v. State, 441 S.W.3d 295 (Tex. Crim. App. 2014) .................................12
Brady v. Maryland, 373 U.S. 83 (1963) ..................................................................15
Campbell v. State, 325 S.W.3d 223 (Tex. App. – Fort Worth 2010) ......................16
Douds v. State, 472 S.W.3d 670 (Tex. Crim. App. 2015) .......................................12
Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013).......................................12
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) ...............................15
Lankston v. State, 827 S.W.3d 907 (Tex. Crim. App. 1992) ...................................12
London v. State, 490 S.W.3d 503 (Tex. Crim. App. 2016) .....................................12
Miranda v. Arizona, 384 U.S. 436 (1966) ...........................................................8, 10
Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008) ............................................7
Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000). ........................................16
Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011) .........................................12
Rothstein v. State, 267 S.W.3d 366 (Tex. App. – Houston [14th Dist.] 2008).........13
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ....................................7
Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002) ........................................13


STATUTES
Tex. Penal Code § 12.42(d) .......................................................................................3


RULES
Tex. R. App. P. 44.2(a). ...........................................................................................16
Tex. R. App. P. 33.1(a) ..................................................................................... 12, 13
Tex. R. App. P. 9.4(i)(1) ..........................................................................................18
Tex. R. App. P. 9.4(i)(2)(B) .....................................................................................18
Tex. R. App. P. 9.5...................................................................................................18
Tex. R. Evid. 103(a)(1) ............................................................................................12



                                                          iv
                                     STATEMENT OF FACTS
Guilt-Innocence Phase

       Early on the morning of November 10, 2016, Khurrum “Chris” Chaudhry had

just opened and was preparing breakfast at Clayton General Store, the convenience

store he owned and operated on the outskirts of Panola County. 3 RR 1 33-34. He

heard the chime on the front door and turned around to see a man whom he did not

know 2 enter the store wearing a black jacket, black jeans, and a black hat, his face

covered with a black bandana. 3 RR 34-35, 48; see also 3 RR 24. Chaudhry asked

the man to remove the bandana, but he did not. 3 RR 35-37. Instead, the man pointed

a handgun in Chaudhry’s face and demanded: “If you don’t want to die, give me all

the money you have.” 3 RR 37. Fearing for his life, Chaudhry removed the cash

drawer from the register and placed it on the counter; the masked man removed the

cash from the drawer, about $500 to $600. 3 RR 38-40, 41-42, 66. The masked man

then proceeded to pull out the telephone lines and credit card machine wires behind

the counter. 3 RR 40.

       Chaudhry saw the masked man leave the store, turn to the right, and walk

along the side of the store toward the back of the building. 3 RR 43. Ten to fifteen


1
  “CR” refers to the Clerk’s Record of pleadings and orders filed with the district clerk in the course
of the proceedings in the trial court, followed by citation to page numbers. “RR” refers to the
Reporter’s Record of transcribed trial proceedings, preceded by citation to volume number and
followed by citation to page numbers.
2
  Chaudhry testified that most of his early-morning customers were regulars with whom he was
well acquainted. 3 RR 34.
seconds later, Chaudhry walked out of the store and saw the man fleeing the scene

on a motorcycle. 3 RR 43; 3 RR 26. Chaudhry then called the police. 3 RR 44.

          Later that day, Bell was involved in a motorcycle accident in Garrison, in

neighboring Nacogdoches County. 3 RR 107. Noting that the motorcycle Bell was

riding (which was registered in his name) was similar to the one reported to have

been driven by the perpetrator of the Clayton General Store robbery, law

enforcement identified Bell as a suspect. 3 RR 86, 94-95, 107; SX 6, 14, 15. They

located Bell at a house in Garrison, where he was staying with a friend. 3 RR 86.

They searched the residence and found clothing – a black jacket, bandana,

motorcycle gloves, a black and white motorcycle helmet – that matched Chaudhry’s

description of the clothing worn by his assailant.3 3 RR 92-96; SX 7-10. An

unknown amount of cash was recovered from Bell’s person. 3 RR 94, 97, 116, 135.

No weapon was ever recovered. 3 RR 29, 102, 104, 128, 163.

          Although Chaudhry was unable to identify Bell as the perpetrator because of

the bandana covering his face, he did positively identify the jacket seized from the

home where Bell was staying as the jacket worn by the perpetrator during the

robbery. 3 RR 38, 63-65; SX 10. He also identified the helmet and gloves seized

at the home as those worn by the masked man. 3 RR 64-65; SX 7, 8, 9. And he




3
    Bell identified the clothing as his. 3 RR 99.
                                                    2
identified the motorcycle recovered by law enforcement (which was registered to

Bell) as the one he had seen the masked man drive off on. 3 RR 63-64; SX 6.4

       After his arrest, Bell was questioned by law enforcement. 3 RR 123, 155. He

initially denied any involved in the armed robbery, but ultimately admitted to

robbing Chaudhry. 3 RR 125-127, 147-148, 155-158. He did claim, however, that

he used a BB gun or an air pistol, not a firearm. 3 RR 142-143, 158.

Sentencing Phase

       Bell’s sentencing range – which would have been five to 99 years or life –

was enhanced to 25 years to life pursuant to Section 12.42(d) of the Texas Penal

Code in light of two prior felony convictions. 4 RR 5; CR 11. At the sentencing

hearing on September 25, 2017,5 the State presented evidence of seven prior felony

convictions: (1) a 2005 Nacogdoches County conviction for burglary of a habitation,

a second-degree felony for which Bell was sentenced to four years in the Texas

Department of Criminal Justice, Correctional Institutions Division; (2) a 2006

Nacogdoches County conviction for unauthorized use of a motor vehicle, a state jail

felony for which Bell was sentenced to six months state jail; (3) a 2009 Nacogdoches

County conviction for theft, a state jail felony for which Bell was sentenced to nine


4
  Another witness passing by Clayton General Store that morning saw a man wearing black exit
the store, walk around behind the building, and get on a motorcycle. 3 RR 70. He positively
identified the helmet recovered by law enforcement as the one worn by the man he saw, and he
testified that the motorcycle and clothing recovered by law enforcement were similar to what he
had seen that morning. 3 RR 71-72.
5
  Bell elected to have the trial court assess sentence. CR 95.
                                              3
months state jail; (4) a 2011 Nacogdoches County conviction for theft, a state jail

felony offense for which Bell was sentenced to 18 months state jail; (5) another 2011

Nacogdoches County conviction for theft, a state jail felony for which Bell was

sentenced to 18 months state jail; (6) a 2011 Angelina County conviction for

unauthorized use of a motor vehicle, a state jail felony for which Bell was sentenced

to 15 months state jail; and (7) a 2018 Angelina County conviction for robbery, a

first-degree felony offense for which Bell was sentenced to three years in TDCJ-

CID. 4 RR 9-10; SX 1-7.

      The State also presented evidence of two unadjudicated offenses that Bell was

alleged to have committed while out on bond for the instant offense: a theft on

March 14, 2017, and a robbery on June 29, 2017, both in Angelina County. 4 RR

72-74; 4 RR 12-20, 36-38, 49; SX 9. Bell was also a suspect in grocery store thefts

in Alto, Timpson, Tatum, and Nacogdoches. 4 RR 57, 66-67.

      Katherine Bell, Bell’s mother testified that Bell had family members who

supported him, including an 18-year-old daughter who is a freshman in college. 4

RR 81-82. According to Ms. Bell, Bell has been in and out of jail and prison for

most of his adult life, but when he was out, he was a hard worker. 4 RR 83-85. She

also opined that Bell’s criminal behavior was attributable to his struggle with drugs,

particularly crack cocaine. 4 RR 85- 87.




                                           4
      The trial court assessed a sentence of 45 years in the Correctional Institutions

Division of the Texas Department of Criminal Justice, to run concurrently. 4 RR

108-109; CR 114, 1121.

                           SUMMARY OF THE ARGUMENT
      The trial court did not abuse its discretion by denying Bell’s motion to

suppress his inculpatory statements to law enforcement without first reviewing the

videotaped interviews from which those statements were derived.

      As an initial matter, Bell failed to preserve error regarding this issue. Bell

never argued at trial that he was entitled to have the trial court review the videotaped

interviews before ruling on the suppression motion. In fact, the record shows that

Bell acquiesced to the trial court’s decision not to review the videotaped interviews

unless and until the suppression hearing testimony compelled it. And Bell did not

offer the videotaped interviews into evidence during the suppression hearing. Bell’s

argument on appeal does not comport with his objection at trial, thus this point of

error must be overruled as not properly preserved.

      Moreover, even if Bell had preserved this point of error for review, the trial

court did not abuse its discretion by denying the motion to suppress Bell’s

inculpatory statements with reviewing the videotaped interviews. The record refutes

Bell’s speculative assertions that the videos contained any evidence that the district

attorney communicated with Bell by telephone during the November 14th interview.


                                           5
It was within the trial court’s discretion to credit the investigators’ testimony and

find Bell’s statements were voluntarily given.

      Finally, in light of the overwhelming evidence proving that Bell was the

masked man who robbed Chris Chaudhry at gunpoint, the admission of his

inculpatory statement to law enforcement did not contribute to his conviction. Thus,

any error in the admission of that statement was harmless beyond a reasonable doubt.

      For all the above reasons, this Court should affirm the judgment of the court

below.




                                          6
                                     ARGUMENT
        I.     The trial court did not abuse its discretion by denying Bell’s
               motion to suppress his inculpatory statements to law
               enforcement without first reviewing the videotaped
               interviews from which those statements were derived.

      The trial court did not abuse its discretion when it denied Bell’s motion to

suppress his inculpatory statements to law enforcement.

      Bell correctly notes that a trial court’s denial of a motion to suppress is

reviewed under an abuse-of-discretion standard and that the trial court is the

exclusive trier of fact and judge of the witnesses’ credibility. See Brief of Appellant

at 6 (citing Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); Neal v.

State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008)).

      No doubt recognizing the futility of arguing that the trial court abused its

discretion by crediting the testimony of two sheriff’s department investigators over

that of Bell, Bell argues that the trial court abused its discretion by denying the

suppression motion without first viewing the videotaped interviews from which

Bell’s inculpatory statements were derived. But Bell failed to preserve this point of

error for appellate review. In any event, the claim is meritless.

Hearing on Motion to Suppress

      Two before days before trial, Bell filed a motion to suppress his inculpatory

statements; significantly, however, the motion did not challenge the voluntariness of



                                          7
Bell’s confession, but only questioned whether the requisites of Miranda v. Arizona6

were met. CR 12, 13 at ¶ 4. At the suppression hearing, conducted after jury

selection, Bell argued that his inculpatory statements to law enforcement were

inadmissible because they were involuntary; Bell did not dispute compliance with

Miranda. 2 RR 97, 99-101. The gist of Bell’s argument was that Bell’s confession

was rendered involuntary by an alleged intervention of the Panola County District

Attorney during the course of the interview.

       It appears that at the outset of the hearing, both Bell’s counsel and the trial

judge believed that the judge would review the videos in advance of the suppression

hearing, due at least in part to the fact that the videos contained objectionable

extraneous-offense evidence. 2 RR 96-99. However, the State then indicated that it

did not intend to offer the videos themselves but only the officers’ testimony relating

Bell’s inculpatory oral statements. 2 RR 99-101. The trial court noted that it would

nonetheless have a duty to review the videos if they contained “exculpatory

evidence.” 2 RR 102.

       The trial court questioned Bell’s counsel specifically regarding whether the

videos contained evidence relevant to his voluntariness argument. 2 RR 102-103.

       Court:         Do you feel that those tapes create an exculpatory area?


6
 Miranda v. Arizona, 384 U.S. 436 (1966) (holding that certain warnings must be given by law
enforcement before questioning an individual in custody in order to protect that individual’s Fifth
Amendment right not to incriminate himself).
                                                8
      Counsel:      My client does not believe that the statements that he made
                    to law enforcement were freely and voluntarily given, and
                    therefore, if they’re not, then they should not come in, and
                    then the State would have to –

      Court:        Well, I mean, --

      Counsel:      -- enter evidence –

      Court:        -- that’s a statement. But, I mean, that’s not answering my
                    question.

      Counsel:      Okay.

      Court:        Are there things in the tape?

      Counsel:      The, the main thing that I see as “exculpatory” is the fact
                    that he, he denies that, and they continue to go through
                    with that. In terms of have I seen something that the State
                    has said, well, we can show that he was at another place,
                    hypothetically, that I have not been, been given. So I may
                    not understand the, the Court’s question myself.

      Court:        Well –

      Counsel:      Because, I mean, they want to put on a State, a witness
                    who is going to say “Hey, he ultimately said he did it.”

      Court:        Is there anything in those tapes that shows that the
                    statement was not voluntarily given?

      Counsel:      Well, my client can testify as to that, Your Honor.

2 RR 102-103. The trial court then stated, “And if . . . it leads into the tapes, we’ll

go to the tapes,” and Bell’s counsel agreed. 2 RR 104.

      Chris Welk and Jeff Ivy, investigators with the Panola County Sheriff’s

Office, testified at the suppression hearing regarding their questioning of Bell. They
                                          9
administered the Miranda warnings to Bell, and Bell indicated to them that he

understood them. 2 RR 110, 124-125. Bell was questioned first on November 10th,

the day he was arrested; during that initial interview, Bell denied any involvement

in the armed robbery at Clayton General Store. 2 RR 111-112, 114, 128. Bell was

questioned again on November 14th, by which time law enforcement had developed

additional evidence with which to confront him. 2 RR 128-129. During that

interview as well, Bell first denied any involvement in the crime. 2 RR 111-112,

126. But after a cigarette break, during which Bell and the officers discussed Bell’s

use of methamphetamine, Bell returned to the interview room and admitted to

investigators that he had committed the robbery. 2 RR 112-113, 119, 121, 126-127,

129-131. Investigator Welk did not recall anyone else talking to Bell over the

telephone during the November 14th interview. 2 RR 120-121. Investigator Ivy

recalled a telephone call made to Kevin Jones, one of the investigators with the

Panola County District Attorney’s Office, at some point during the interview; but

Ivy did not testify about the substance of the call or whether Jones ever spoke to

Bell. 2 RR 130.

      Bell testified at the suppression hearing.       He claimed to have little

understanding of his Miranda rights despite his admittedly lengthy criminal history.

2 RR 141-143, 149-153. He testified that during his cigarette break in the middle of

the November 14th interview, the officers queried him about the identities of local


                                         10
drug dealers.    2 RR 145.      Bell also testified that, during the interview, the

investigators telephoned an individual named “Bucky,” who they claimed was the

district attorney. 2 RR 146-147. Bell testified that the officers then put him on the

telephone with “Bucky,” who told Bell, “we know you done this. You go ahead and

comply with my officers. It’s going to be like a little slap on the wrist.” 2 RR 147-

148. Bell claimed that he would not have confessed to the armed robbery had it not

been for this communication with “Bucky,” whom he believed to be the district

attorney. 2 RR 148.

      The State then recalled Investigator Welk to the stand, and Welk denied

telephoning the district attorney during his questioning of Bell in the interview room.

2 RR 157.

      Prosecutor: If you called either one of us, it would be on videotape,
                  wouldn’t it?

      Welk:         Yes, ma’am.

2 RR 157. On cross examination, Welk agreed that there may have been a call made

to an investigator in the district attorney’s office at some point during the interviews.

2 RR 158. But he denied that he or anyone from the district attorney’s office ever

told Bell that he would only get “a slap on the wrist” if he confessed to the offense.

2 RR 158-159. Bell’s counsel rested and closed without offering the videos. 2 RR

156. The trial court denied Bell’s suppression motion. 2 RR 159.



                                           11
      A.     Bell failed to preserve error regarding the trial court’s
             decision not to view the videotaped interviews.

      As an initial matter, Bell has failed to preserve error regarding this claim. To

preserve a complaint for appellate review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling if they are not apparent from the context of the request, objection, or

motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex.

Crim. App. 2015). Further, the trial court must have ruled on that request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v.

State, 407 S.W.3d 259, 262-63 (Tex. Crim. App. 2013). An objection must be made

as soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1);

London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Pena v. State, 353

S.W.3d 797, 807 (Tex. Crim. App. 2011).

      To preserve error for appellate review, the complaining party must “let the

trial judge know what he wants, why he thinks himself entitled to it, and . . . do so

clearly enough for the judge to understand him at a time when the trial court is in a

proper position to do something about it.” Lankston v. State, 827 S.W.3d 907, 909

(Tex. Crim. App. 1992); see also Bekendam v. State, 441 S.W.3d 295, 300 (Tex.

Crim. App. 2014). While courts are not hyper-technical in their examination of error

preservation, the point of error on appeal must comport with the objection made at
                                         12
trial. Bekendam, 441 S.W.3d at 300; Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002).

      Nothing from Bell’s written suppression motion, the exchanges during the

suppression hearing, or the trial court’s ruling suggests that it was apparent that Bell

made (or that the trial court ruled on) an argument that he was entitled to have the

trial court review the videotaped interviews before ruling on the suppression motion.

In fact, the record shows that Bell’s counsel acquiesced to the trial court’s decision

not to review the videotaped interviews unless and until the suppression hearing

testimony compelled it. 2 RR 104. And Bell’s trial counsel did not offer the

videotaped interviews into evidence during the suppression hearing. 2 RR 156.

      Bell’s argument on appeal does not comport with any objection he raised in

his written suppression motion or at the suppression hearing. Thus, Bell forfeited

this point of error, and the point of error must be overruled. See Tex. R. App. P.

33.1(a); see also Rothstein v. State, 267 S.W.3d 366, 373-74 (Tex. App. – Houston

[14th Dist.] 2008, pet. ref’d) (concluding that because a defendant’s appellate

argument did not comport with any objection raised in his motion to suppress or

articulated at the suppression hearing, he failed to preserve error). This Court should

so find and affirm the judgment of the trial court.




                                          13
      B.      Assuming the point of error was preserved, the trial court
              did not abuse its discretion by declining to view the videos.

      Further, even if Bell preserved this point of error for review, the trial court did

not err by denying the motion to suppress without viewing the videotaped

interviews.

      First, the trial court’s decision not to view the videotaped interviews is

supported by the record. Specifically, contrary to Bell’s speculative assertions, there

is nothing in the record to indicate that the videos contained any evidence that the

district attorney communicated with Bell by telephone during the November 14th

interview. In fact, the record indicates the opposite. As the prosecutor aptly noted

in her questioning of Investigator Welk: “If you called either one of us, it would be

on videotape, wouldn’t it? Yes, ma’am.” 2 RR 157. And Bell’s trial counsel

declined to offer the videos into evidence at the suppression hearing. 2 RR 156.

      Contrary to Bell’s assertions, it was not “unchallenged that the Panola County

Criminal District Attorney spoke with” him. See Appellant’s Brief at 15-16. Indeed,

while Bell testified that he spoke with someone named “Bucky” who the

investigators told him was the district attorney, the investigators denied that the

district attorney spoke with Bell during the interview. They further denied that

anyone told Bell he would only get “a slap on the wrist” if he confessed. It was

within the trial court’s discretion to credit the investigators’ testimony and find

Bell’s statements were voluntarily given.
                                          14
       Also without merit is Bell’s claim that the trial court’s decision somehow

violated Brady v. Maryland, 373 U.S. 83 (1963) (holding that due process requires

the State to disclose to the defense evidence favorable to the accused).          See

Appellant’s Brief at 18. Bell’s trial counsel acknowledged at the suppression

hearing that the State had furnished him copies of the videotaped interviews prior to

trial. 2 RR 102. Bell’s trial counsel had ample opportunity to review the videos

prior to trial, and he ultimately declined to offer them at the suppression hearing, a

decision this Court must presume was attributable to reasonable strategy. See

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (holding that on

direct appeal, where counsel’s reasons for failing to do something do not appear in

the record, counsel’s conduct must be presumed reasonable).

       The trial court did not abuse its discretion by denying Bell’s motion to

suppress his inculpatory statements without viewing the videotaped interviews from

which those statements were derived. Thus, the Court should affirm the judgment

of the trial court.


       C.     Any error was harmless beyond a reasonable doubt.

       Finally, even assuming that Bell preserved this claim for appellate review, and

that the trial court erred by not suppressing the statement, such error was harmless

beyond a reasonable doubt in light of the record in this case. See Campbell v. State,



                                          15
325 S.W.3d 223, 238-39 (Tex. App. – Fort Worth 2010, no pet.); Bailey v. State, 281

S.W.3d 29, 37 (Tex. App. – El Paso 2005, no pet.).

      For constitutional error to be harmless, a court must determine “beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.”

Tex. R. App. P. 44.2(a). When the constitutional error involves the admission of a

defendant’s confession, a reviewing court must “exercise extreme caution” before

determining that the error was harmless. Arizona v. Fulminante, 499 U.S. 279, 296

(1991).   Nevertheless, overwhelming evidence can render the admission of a

defendant’s confession harmless beyond a reasonable doubt        Ovalle v. State, 13

S.W.3d 774, 785 (Tex. Crim. App. 2000).

      As set forth in the Statement of Facts above, there was a wealth of evidence,

apart from Bell’s inculpatory statement, proving that Bell was the masked man who

robbed Chris Chaudhry at gunpoint on November 10, 2016. The black jacket,

gloves, and motorcycle helmet recovered from the home where Bell was staying,

items which Bell admitted belonged to him, were positively identified by Chris

Chaudhry as the clothing worn by his assailant. The motorcycle registered to Bell

and recovered hours after the robbery in neighboring Nacogdoches County was

identified by Chris Chaudhry as the motorcycle on which his assailant fled the scene.

In light of this overwhelming evidence of Bell’s guilt, the admission of his

inculpatory statement to law enforcement did not contribute to his conviction.


                                         16
      Thus, any error in the admission of Bell’s inculpatory statement was harmless

beyond a reasonable doubt, and this point of error should be overruled. This Court

should, therefore, affirm the judgment of the trial court.



                             CONCLUSION AND PRAYER
      Based on the foregoing arguments, the State prays that this Court affirm the

judgment of the court below.

                                               Respectfully submitted,



                                               ___________________________
                                               GENA BUNN
                                               Texas Bar No. 00790323

                                               Gena Bunn, PLLC
                                               P.O. Box 6150
                                               Longview, Texas 75608
                                               gbunn@genabunnlaw.com
                                               (903) 804-4003

                                               ATTORNEY FOR APPELLEE,
                                               The State of Texas




                                          17
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has

been delivered by electronic mail to counsel for the Appellant, Clay Dean Thomas,

on this the 1st day of June, 2018. The document has also been served electronically

through the electronic file manager pursuant to Rule 9.5 of the Texas Rules of

Appellate Procedure.



                                             _____________________________
                                             GENA BUNN




                         CERTIFICATE OF COMPLIANCE

      This brief complies with the type-volume limitations of Tex. R. App. P.

9.4(i)(2)(B) because it contains 3.916 words, excluding parts of the brief exempted

by Tex. R. App. P. 9.4(i)(1). This brief complies with the typeface requirements

because it has been prepared in a proportionally-spaced typeface using Microsoft

Word in 14-point font.


                                             ______________________________
                                             GENA BUNN




                                        18
