                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-10-00274-CR

CHRISTOPHER KEITH SCHMOTZER,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 09-01287-CRF-85


                         MEMORANDUM OPINION

      Christopher Schmotzer was convicted of murder and sentenced to life in prison.

TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Because the trial court did not err in

denying his motion to suppress and in admitting photographs, the trial court’s

judgment is affirmed.

                                    BACKGROUND

      William Johnson and William Stephens, Jr. were at Poets Bar on January 3, 2009.

Johnson was approached by a man about the name on Johnson’s jersey. The man

questioned Johnson about whether he played the online game Worlds of Warcraft. The
man said he had played someone with the same name as on the back of Johnson’s

jersey. Johnson replied that the name was of a famous hockey player and that Johnson

did not play the online game. Johnson said the conversation ended awkwardly and the

man walked away. Later, when Johnson and Stephens were leaving, Johnson gave

Stephens a ride to his pickup parked in the back parking lot. There, they decided to

throw a football around. Johnson saw the same man who had approached him earlier

standing next to a pickup parked next to a light pole watching them. The man gave

Johnson a cold stare, like the man despised Johnson. Johnson eventually left Stephens

in the parking lot in Stephens’ pickup. Johnson saw the man still standing at his

pickup. Stephens was later found dead; seat belted in his pickup but slumped out of

the open driver’s side door. He had been shot in the head through the door of his

pickup.

                                 MOTION TO SUPPRESS

       In his first issue, Schmotzer argues that the trial court erred in denying his

motion to suppress evidence, a gun and ammunition, seized from his pickup without a

warrant. The State did not contest that the evidence was seized without a warrant.

Applicable Law

       In a hearing on a motion to suppress evidence based on an alleged Fourth

Amendment violation, the initial burden of producing evidence that rebuts the

presumption of proper police conduct is on the defendant. Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). This burden may be met by establishing that a search or

seizure occurred without a warrant. Id. After this showing is made, the burden of

Schmotzer v. State                                                                Page 2
proof shifts to the State, at which time the State is required to establish that the search or

seizure was conducted pursuant to a warrant or was reasonable. Id.

       Generally, a search conducted without a warrant is considered per se

unreasonable. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). But there is an

exception for vehicles—a warrantless search of a vehicle is reasonable if law

enforcement officials have probable cause to believe the vehicle contains contraband.

Id. In addition to the mobility element, less rigorous warrant requirements govern

vehicles because the expectation of privacy with respect to one's vehicle is significantly

less than that relating to one's home or office. Id. Probable cause exists where the

known facts and circumstances are sufficient to warrant a man of reasonable prudence

in the belief that contraband or evidence of a crime will be found. Id. Known facts and

circumstances include those personally known to law enforcement officers or those

derived from a "reasonably trustworthy" source. Id.

Standard of Review

       We review a trial court's ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). We afford almost total deference to a trial court's determination of the historical

facts that the record supports, especially when the implicit fact-finding is based on an

evaluation of credibility and demeanor. Id. However, when application-of-law-to-fact

questions do not turn on the credibility and demeanor of the witnesses, we review the

trial court's ruling on those questions de novo. Id. We also review the trial court's

application of the law de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

Schmotzer v. State                                                                      Page 3
       The trial judge is the sole trier of fact and judge of the credibility of the witnesses

and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.

Crim. App. 2007). When reviewing a trial court's ruling on a motion to suppress, we

view all of the evidence in the light most favorable to the ruling. State v. Garcia-Cantu,

253 S.W.3d 236, 241 (Tex. Crim. App. 2008). When, as here, the trial court does not enter

findings of fact, we infer the necessary factual findings that support the trial court's

ruling if the evidence, viewed in the light most favorable to the ruling, support the

implied fact findings. Id.

Applicable Facts and Investigation

       At the hearing on the motion to suppress, Det. Arnold testified that he was called

to a back parking lot at Poets Bar where Stephens was found shot in the head while in

his pickup. By the time Arnold arrived, Stephens had been removed and taken to the

hospital. A .40 caliber shell casing was found 20 feet from Stephens’ pickup. Arnold

viewed surveillance videos from the bar and the liquor store next door and saw a man

wearing light pants leaving Stephens’ pickup and then saw a dark-colored 4-door

pickup leaving the parking lot. Stephens’ friend, Will Johnson, told Arnold about a

verbal incident in the bar between Johnson and a white male wearing a blue shirt, light

pants, and tan shoes regarding the game, Worlds of Warcraft. Johnson also told Arnold

about a later incident with the same person in the parking lot. The person was standing

next to his pickup, watching Johnson and Stephens throw a football. The person was

still there when Johnson left Stephens at his pickup. A bar waitress identified the

person as Schmotzer. Arnold spoke with Schmotzer’s wife who confirmed that he had

Schmotzer v. State                                                                      Page 4
been at the bar, was wearing a dark shirt, khaki pants and light-colored loafers, played

Worlds of Warcraft, drove a 4-door, red-colored pickup, and kept a handgun in his

pickup.

       Arnold and another detective met with Schmotzer at his work.          Schmotzer

agreed to speak with them. Arnold testified at the hearing that Schmotzer was not

under arrest and was free to leave. Schmotzer confirmed that he was at Poets Bar the

night of the murder; played Worlds of Warcraft; spoke with Johnson about Worlds of

Warcraft; wore a blue shirt, khaki pants, and tan loafers; drove a 4-door maroon pickup;

watched people playing football in the parking lot; left in the same direction as the

pickup in the video; and owned a .40 caliber handgun which he kept under the back

seat of his pickup. Arnold asked Schmotzer if he could see the gun, and Schmotzer

agreed. When attempting to access the pickup, Arnold, due to officer safety, told

Schmotzer not to open the door. Arnold opened the door of the pickup and located the

handgun and .40 caliber ammunition under the back seat.             The handgun and

ammunition were seized but neither Schmotzer nor his pickup was seized at that time.

       On appeal, Schmotzer argues that the search was unreasonable because allowing

the officers to see the gun was not the same as giving consent to search the pickup and

seize the gun and ammunition. In making its oral ruling, the trial court found that the

officer had probable cause to search. Given the evidence developed at the hearing on

the motion to suppress, we agree. The facts and circumstances known to Det. Arnold at

the time he opened the door to Schmotzer’s pickup were sufficient to warrant a man of

reasonable prudence to believe that Schmotzer was the person who shot Stephens and

Schmotzer v. State                                                                Page 5
that the gun used was in Schmotzer’s pickup. Accordingly, the trial court did not err in

denying Schmotzer’s motion to suppress, and Schmotzer’s first issue is overruled.

                                      PHOTOGRAPHS

       In his second issue, Schmotzer complains that the trial court erred in admitting

numerous “gruesome” photographs into evidence over his Rule 403 objection. TEX. R.

EVID. 403.     The specific photographs are State’s Exhibits, 25-30, 44, 156 and 157.

Schmotzer argues that the prejudicial nature of the photographs substantially

outweighed their probative value.

       Relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. A court may consider

many factors in determining whether the probative value of photographs is

substantially outweighed by the danger of unfair prejudice, including: the number of

exhibits offered, their gruesomeness, their detail, their size, whether they are in color or

black-and-white, whether they are close up, whether the body depicted is clothed or

naked, the availability of other means of proof, and other circumstances unique to the

individual case. Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010); Santellan v.

State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997). The admissibility of photographs

over an objection is within the sound discretion of the trial court. Davis, 313 S.W.3d at

331; Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Autopsy photographs

are generally admissible unless they depict mutilation of the victim caused by the

autopsy itself. Davis, 313 S.W.3d at 331; Santellan, 939 S.W.2d at 172.




Schmotzer v. State                                                                    Page 6
       Stephens was shot in the head while he was sitting in his pickup.          All the

photographs complained of were 8 x 10 color photos.

Crime Scene Photographs

       Exhibits 25-30 were photos of Stephens in his pickup as he was being removed

by paramedics and placed on a gurney. Exhibit 25 depicts someone from EMS holding

onto Stephens’ head as he appears to be falling out of his pickup. The photo depicts

blood covering Stephens’ left forearm and hand and blood on the pavement below.

Exhibit 26 depicts EMS personnel and Stephens’ left hand and forearm covered in

blood. Exhibit 27 depicts Stephens leaning out of his pickup. His right hand has some

blood on it.     Stephens’ head is not visible in this photo.   Exhibit 28 depicts EMS

personnel holding Stephens upright and attaching a neck brace. Blood is shown on

Stephens’ face and t-shirt. Exhibit 29 is a close up photo of Stephens’ head on the

gurney. His face is almost entirely covered in blood. Exhibit 30 depicts the interior of

Stephens’ pickup after he has been removed. Blood is shown on the lower side of the

driver’s seat and on the side floorboard. None of these exhibits, except possibly Exhibit

29 is overly gruesome. And although Exhibit 29 is rather gruesome, the disturbing

nature of this picture is primarily due to the injury caused by Schmotzer.          After

reviewing the photos in light of the relevant factors, we hold that the probative value of

the photos was not substantially outweighed by the danger that they unfairly

prejudiced Schmotzer.




Schmotzer v. State                                                                  Page 7
       Autopsy Photographs

       Exhibits 44, 156, and 157 were introduced through Dr. Leisha Wood of the Travis

County Medical Examiner’s Office. Exhibit 44 is a close up of Stephens’ face after it had

been cleaned up but before the autopsy. The State used this photo so Dr. Wood could

identify Stephens as the person on which she performed the autopsy. She explained

that the dark purple areas around Stephens’ eyes were due to the fracturing of

Stephens’ skull which caused blood to leak into the soft tissue. Exhibits 156 and 157 are

photos taken during the autopsy of the entrance and exit wounds, respectively. Both

wounds are clean.     These photos are not gruesome, and only depict the damage

perpetrated by Schmotzer. Likewise, after reviewing the photos in light of the relevant

factors, we hold that the probative value of the autopsy photos was not substantially

outweighed by the danger that they unfairly prejudiced Schmotzer.

       Accordingly, the trial court did not err in overruling Schmotzer’s objections to

these Exhibits, and his second issue is overruled.

                                      PRO SE BRIEF

       Unhappy with his appointed counsel’s brief, Schmotzer requested that we allow

him to file his own brief and that we allow him access to the record. He also presented

a copy of his own brief and later, a motion for an evidentiary hearing. The State filed a

motion to strike Schmotzer’s brief.

       A criminal appellant has no right to hybrid representation. Robinson v. State, 240

S.W.3d 919, 922 (Tex. Crim. App. 2007); Scheanette v. State, 144 S.W.3d 503, 505 n.l (Tex.

Crim. App. 2004); Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001); Patrick v.

Schmotzer v. State                                                                  Page 8
State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995); Turner v. State, 805 S.W.2d 423, 425 n.1

(Tex. Crim. App. 1991). For example, when an appellant has counsel and counsel has

filed a brief, the appellant has no right to file another brief. See Scheanette, 144 S.W.3d at

505 n.l; Patrick, 906 S.W.2d at 498; Turner, 805 S.W.2d at 425 n.1. But this prohibition on

hybrid representation is not absolute. See, e. g., Warren v. State, 98 S.W.3d 739, 741 (Tex.

App.—Waco 2003, pet. ref'd). We can consider pro se issues in the interest of justice even

though an appellant has no right to hybrid representation. See Williams v. State, 946

S.W.2d 886, 892 (Tex. App.—Waco 1997, no pet.); see also Guyton v. State, No. 10-07-

00070-CR, 2009 Tex. App. LEXIS 839 (Tex. App.—Waco Feb. 6, 2009, pet. ref’d) (not

designated for publication).

       In an abundance of caution, we reviewed the issues raised in Schmotzer’s pro se

brief and find that the “interest of justice” does not require that we consider, address, or

resolve the issues Schmotzer has presented. Accordingly, Schmotzer’s “Motion for

Leave to File Supplamental Brief,” “Motion to Obtain Documents, Transcripts and or

Complete Appellate Record,” “Motion to Suspend Requirements under TRAP Rule 2,”

and Motion for Evidentiary Hearing” will not be acted upon. See Ex parte Bohannan, No.

AP-76,363, 2011 Tex. Crim. App. LEXIS 618, *2 n.1 (Tex. Crim. App. May 11, 2011)

(“Because applicant is represented by counsel, we disregard his numerous pro se

submissions and take no action on them.”).          Further, the State’s motion to strike

Schmotzer’s brief is dismissed as moot.




Schmotzer v. State                                                                      Page 9
                                        CONCLUSION

       Having overruled each of Schmotzer’s issues properly presented, we affirm the

trial court’s judgment.



                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 12, 2011
Do not publish
[CRPM]




Schmotzer v. State                                                           Page 10
