                                                                                         ACCEPTED
                                                                                     06-15-00095-CR
                                                                          SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                               7/13/2015 10:00:49 AM
                                                                                    DEBBIE AUTREY
                                                                                              CLERK



                             No. 06-15-00095-CR
                    ____________________________________________
                                                            FILED IN
                                                             6th COURT OF APPEALS
                                                               TEXARKANA, TEXAS
                                     IN THE                  7/13/2015 10:00:49 AM
                                                                  DEBBIE AUTREY
                             SIXTH COURT OF APPEALS                   Clerk
                              AT TEXARKANA, TEXAS

                    ____________________________________________

                    JAMES ARTHUR BAXLEY,
                                                        Appellant

                                       v.

                    THE STATE OF TEXAS,
                                                   Appellee
                    ____________________________________________

                                 APPEAL FROM
                     TH
                THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
                           TRIAL COURT NO. 1424312
                    ____________________________________________

                              APPELLANT’S BRIEF
                    ____________________________________________

                                            Wade A. Forsman
                                            P.O. Box 918
                                            Sulphur Springs, TX 75483-0918
                                            903.689.4144, f. 903.689.7001
                                            wade@forsmanlaw.com

                                            Attorney for Appellant
                                            James Arthur Baxley

                          ORAL ARGUMENT REQUESTED




Appellant’s Brief
                      IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all

parties to the trial court’s judgment and the names and addresses of all trial and

appellate counsel:

Appellant                                   Appellant’s appellate counsel
James Arthur Baxley                         Wade A. Forsman
                                            P.O. Box 918
                                            Sulphur Springs, TX 75483-0918
                                            903.689.4144 telephone
                                            903.689.7001 facsimile
                                            wade@forsmanlaw.com

                                            Appellant’s trial counsel
                                            Cynthia Braddy
                                            1109 Main Street
                                            Commerce, TX 75428
                                            903.243.3577 telephone

Appellee                                    Appellee’s trial & appellate counsel
The State of Texas                          Matthew Howard Harris
                                            Assistant District Attorney
                                            8th Judicial District
                                            P.O. Box 882 (75483-0882)
                                            114 Main Street
                                            Sulphur Springs, TX 75482
                                            903.885.0641 telephone
                                            903.885.0640 facsimile
                                            mharris@hopkinscountytx.org




Appellant’s Brief                                                             Page i
                             TABLE OF CONTENTS

Identity of Parties and Counsel ……………………………………………………. i

Table of Contents ………………………………………………………………… ii

Index of Authorities ……………………………………………………………. iv

Statement of the Case …………………………………………………………….. 1

Issue Presented …………………………………………………………………... 2

      POINT OF ERROR NO. 1: The trial court erred in crediting the
      testimony of Sergeant Mark Estes.

Statement of Facts ……………………………………………………………….. 2

      I.     The indictment………………………………………………………. 2

      II.    Testimony by Sergeant Mark Estes…………………………………. 3

             A.     Estes’s testimony during the hearing on Baxley’s
                    Motion to Suppress his Arrest…………………………………. 3

             B.     Estes’s testimony at trial……………………………………… 5

      III.   Baxley convicted and sentenced; Baxley appeals…………………… 7

             A.     The jury renders a verdict of guilty and assesses
                    punishment at two years TDCJ, with no fine………………… 7

              B.    The trial court sentences Baxley…………………………….. 8

              C.    Baxley appeals………………………………………………. 8

Summary of the Argument………………………………………………………. 8

Argument …………………………………………………………………............ 8
Appellant’s Brief                                                    Page ii
Prayer ………………………………………………………………………….. 10

Certificate of Word Count ………………………………………………………. 11

Certificate of Service……………………………………………………………...11




Appellant’s Brief                              Page iii
                     INDEX OF AUTHORITIES

Cases

Turrubiate v. State,
     399 S.W.3d 147 (Tex. Crim. App. 2013)………………………………… 8, 9

Valtierra v. State,
      310 S.W.3d. 442 (Tex. Crim. App. 2010)………………………………… 9

Court Rules

Tex. R. App. P. 9.4(i)(3) ………………………………………………………… 11

TEX. R. APP. P. 38(a) ……………………………………………………………… i




Appellant’s Brief                                       Page iv
                             No. 06-15-00095-CR
                    ____________________________________________

                                       IN THE
                             SIXTH COURT OF APPEALS
                              AT TEXARKANA, TEXAS

                    ____________________________________________

                    JAMES ARTHUR BAXLEY,
                                                           Appellant

                                          v.

                    THE STATE OF TEXAS,
                                                            Appellee

                    ____________________________________________

                                 APPEAL FROM
                     TH
                THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
                           TRIAL COURT NO. 1424312
                    ____________________________________________

                              APPELLANT’S BRIEF
                    ____________________________________________



                            STATEMENT OF THE CASE

       This is an appeal from a conviction for possession of less than one gram of a
controlled substance (methamphetamine), a state jail felony, for which the trial court
sentenced Appellant to the maximum – namely, two (2) years confinement in the
State Jail Division of the Texas Department of Criminal Justice (“TDCJ”).


Appellant’s Brief                                                               Page 1
                                  ISSUES PRESENTED

       POINT OF ERROR NO. 1: The trial court erred in crediting the
       testimony of Sergeant Mark Estes.


                                STATEMENT OF FACTS

I.     The indictment

       On November 10, 2014, an indictment was filed against James Arthur Baxley

(Vol. 1; p. 6). The indictment alleges a third-degree felony (Vol. 2; p. 5; l. 17-19).

The indictment states that on or about September 23, 2014 Baxley possessed

methamphetamine in an amount of less than one gram in a drug-free zone (Vol. 2;

p. 4; l. 10-14).

       This indictment was amended twice. The State filed its Motion to Amend

Indictment on March 19, 2015 (Vol. 1; p. 23), and the trial court granted the motion

on March 20, 2015 (Vol. 1; p. 26). The State filed a second Motion to Amend

Indictment (Vol. 1; p. 76) on April 28, 2015, and the trial court granted the motion

on May 21, 2015 (Vol. 1; p. 75). The result was that minutes before the

commencement of voir dire, which took place on June 1, 2015, Baxley pleaded “not

guilty” to a straightforward possession case, a state jail felony (Vol. 5; p. 8; l. 9).




Appellant’s Brief                                                                   Page 2
II.   Testimony by Sergeant Mark Estes

      On September 23, 2014 the Sulphur Springs Police Department (“SSPD”)

employed an individual named Mark Estes (Vol. 5; p. 167; l. 12-15). He held the

rank of Sergeant. Id.

      In an effort to expedite the proceedings, the trial court stated that it was aware

that “Sergeant Mark Estes is employed by the Sulphur Springs Police Department

and assigned to the Special Crimes Unit and has been a police officer for many

years” (Vol. 5; p. 167; l. 12-15).

      Estes testified on two separate occasions in this case. The first occasion was

during a hearing that the trial court held on Baxley’s motion to suppress his arrest.

The second occasion was during the trial itself. Each is discussed below.

      A.     Estes’s testimony during the hearing on Baxley’s Motion to
             Suppress his Arrest

      This hearing is found in Volume 5. It starts on page 166, line 15, and it

continues to page 175, line 22. The trial court described the issue it was being asked

to decide this way:

      We're here based upon an oral motion to suppress raised by Ms. Braddy
      this morning. And the crux of it, as I understand, is that Mr. Estes
      arrested the defendant based upon two outstanding traffic warrants,
      slash, capias pro fines. And again I use that warrant, slash, because Ms.
      Braddy [i.e., Baxley’s trial counsel] makes a -- to her, an important
      legal distinction between the two, one of which would justify an arrest

Appellant’s Brief                                                                 Page 3
       and one -- and another set of circumstances might not, according to Ms.
       Braddy (Vol. 5; p. 167; l. 2-10).

       Estes testified that on September 23, 2014 he learned that Baxley had two

arrest warrants (Vol. 5; p. 169; l. 6). Estes believed these two warrants had been

issued through a municipal judge (Vol. 5; p. 203; l. 7-8 & 16-18). Explained Estes,

“Some of the patrol guys [in SSPD] actually get the city warrant list from the

municipal court on a random basis” (Vol. 5; p. 169; l. 9-11). Estes testified that he

had reviewed this warrant list because, said Estes, this warrant list just so happened

to be “on the briefing table in the squad room” (Vol. 5; p. 169; l. 11-12).

       These two warrants are wholly unrelated to the matters contained in the

indictment. Instead, the two warrants were for traffic violations – specifically, an

expired operator's license, and a failure to control speed. (Vol. 5; p. 171; l. 16-21).

       Estes testified that based on this warrant list he and another SSPD officer

drove to where Baxley lived (Vol. 5; p. 168; l. 15). Estes did not actually have in his

possession a “physical copy of the warrant” when he drove to Baxley’s house (Vol.

5; p. 168; l. 21-23). Instead, Estes “confirmed the warrant” through SSPD dispatch

(Vol. 5; p. 168; l. 19), and once at Baxley’s house he saw Baxley in the front yard

(Vol. 5; p. 168; l. 20).

       The trial court overruled the motion to suppress. In explaining its ruling the

trial court said, “[T]he bottom line is, did the officer have a good-faith basis for
Appellant’s Brief                                                                  Page 4
making the arrest based on the outstanding warrant? The Court will find that he

certainly was legally authorized to do so, and the defendant's motion to suppress the

arrest is denied” (Vol. 5; p. 175; l. 17-22).

      B.     Estes’s testimony at trial

      This testimony is also found in Volume 5. It starts on page 180, line 17, and

it continues to page 218, line 21. What follows is Estes’s testimony.

      SSPD has employed Estes for 14 years, the last 3 of which it has assigned

Estes to the “Special Crimes Unit” or “SCU” (Vol. 5; p. 185; l. 4-5). The job duties

of SCU are almost entirely – Estes says “99 percent” (Vol. 5; p. 185; l. 8) -- related

to drug offenses. Estes described SCU’s duties this way:

      Normally we work undercover CIs -- confidential informants -- that
      purchase narcotics for us from suspects or people who are distributing
      narcotics.··And that's our job, is to try to shut that down or slow that
      down by using confidential informants.··Most of the time that is our
      normal duties….. (Vol. 5; p. 197; l. 16-22).

      On September 23, 2014 Estes learned that Baxley had “two active traffic

warrants” that called for his arrest (Vol. 5; p. 181; l. 13-14). Armed with this

information Estes went to where Baxley “was last known to reside at” (Vol. 5; p.

181; l. 17-18).

      Estes drove to Baxley’s residence in an unmarked car (Vol. 5; p. 182; l. 20-

21). The car had no video or audio equipment (Vol. 5; p. 182; l. 22-24 & p. 206; l.

Appellant’s Brief                                                                Page 5
14). The car had no lights or siren (Vol. 5; p. 182; l. 18-20). The car had no field kit

to test for illegal narcotics (Vol. 5; p. 209; l. 22-23 & P. 210; l. 5-7).

          According to the two traffic warrants from a municipal judge, the place where

Baxley resided was 204 Whitworth. See Defendant’s Exs. Nos. 1 and 2 (Vol. 7). 1

However, Estes did not drive to 204 Whitworth (Vol. 5; p. 204; l. 18-25). Indeed,

Estes testified that had no intention of driving to 204 Whitworth (Vol. 5; p. 207; l.

9-12).

          Instead, Estes drove to a different location – namely, 1125 Elm, where he,

Estes, believed Baxley lived (Vol. 5; p. 204; l. 24-25). Estes turned out to be right.

Estes observed Baxley at that location in the front yard “working on a car” (Vol. 5;

p. 181; l. 17-19).

          As previously noted, Estes did not actually have a “physical copy of the

warrant” when he drove to Baxley’s house (Vol. 5; p. 168; l. 21-23). Instead, Estes

radioed dispatch and confirmed that the warrants were good and that Baxley was

still showing wanted (Vo. 5; p. 182; 14-16).

          Estes then “made contact” with Baxley (Vol. 5; p. 182; l. 17). Estes informed

Baxley, who was on his knees working on the driver’s side floorboard area of his

car, as to why he was there (Vol. 5; p. 183; l. 4-8). Estes observed Baxley going for


1
    Defendant’s Exhibits 1 and 2 were admitted into evidence at Vol. 5; p. 204; l. 3-4.
Appellant’s Brief                                                                         Page 6
his wallet in his right pants pocket (Vol. 5; p. 183; l. 18-19). Estes told Baxley to

stand up, and when Baxley complied Estes cuffed him (Vol. 5; p. 183; l. 22-24).

Estes then went for the wallet that he had seen Baxley going for, and in the wallet

Estes found what he believed was methamphetamine. (Vol. 5; p. 184; l. 2-8 & p.

185; l. 20).

       Estes did not field test the meth he believed he had found on Baxley. Instead,

Estes field tested what he had found on Baxley after his return to the police station

(Vol. 5; p. 205; l. 4-8).

III.   Baxley convicted and sentenced; Baxley appeals

       A.      The jury renders a verdict of guilty and assesses
               punishment at two years TDCJ, with no fine.

       On June 1, 2015, the jury returned the following verdict -- guilty of possession

of a controlled substance, namely methamphetamine, in an amount of less than one

gram as charged in the indictment (Vol. 5; p. 267; l. 9-12).

       Baxley, by and through his trial counsel, had previously filed Defendant’s

Election as to Punishment (Vol. 1; p. 72). In that document Baxley elected for the

jury to assess punishment if convicted. See also Vol. 5; p. 8; l. 11-14, where the trial

court confirms that if there is a finding of guilt, then Baxley elects for that same jury

to assess punishment.


Appellant’s Brief                                                                  Page 7
      Accordingly, the jury assessed punishment on June 2, 2015 as follows --

confinement by the Texas Department of Criminal Justice for a term of two years

and no fine (Vol. 6; p. 46; l. 19-21).

      B.     The trial court sentences Baxley

      On that same day, i.e., June 2, 2015, the trial court sentenced Baxley to two

years of confinement in the State Jail Division of the Texas Department of Criminal

Justice (Vol. 6; p. 50; l. 5-8). The trial court assessed restitution in the amount of

$180 (Vol. 6; p. 50; 16-18). The trial court assessed no fine (Vol. 6; p. 50; l. 9), and

it waived attorney fees and court costs (Vol. 6; p. 50; l. 9-15).

      C.     Baxley appeals

      Baxley, by and through his trial attorney, filed a notice of appeal later that

same day. Notice of Appeal (Vol. 1; p. 110).

                           SUMMARY OF THE ARGUMENT

      POINT OF ERROR NO. 1: The trial court erred in crediting the
      testimony of Sergeant Mark Estes.

                                      ARGUMENT

      This Court of Appeals reviews the trial court’s denial of a motion to suppress

under a bifurcated standard of review. With regard to the trial court’s factual

findings, the standard of review is abuse of discretion. With regard to the trial court’s

application of the law to the facts, the standard of review is de novo. Turrubiate v.
Appellant’s Brief                                                                  Page 8
State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)(citing Valtierra v. State, 310

S.W.3d. 442, 447-48 (Tex. Crim. App. 2010)).

      It was error for the trial court to credit Estes’s testimony. The notion that Estes,

who was employed for three years in a work unit (SCU) that is devoted “99 percent”

to drug-related offenses, fortuitously happened to see Baxley’s name on a so-called

“warrant list” for two traffic violations, and then, just so happened to drive to an

address that is different from the address contained on this same “warrant list,” in an

unmarked car, and with no video or audio devices – curiously, Estes did not even

bother to take the warrant upon which he supposedly relies -- strains the credulity of

a reasonable person. Consider the following two exchanges:

       Q.    Okay. So is it your regular practice to take a look at the
             warrant list every day?
      A.     I don't do it every day. I just happened to look at it that day
             and seen that he [i.e., Baxley] was wanted.

(Vol. 5; pp. 208-09; l. 25-3).
                                         …….

      Q.     And how much of your job would you say -- as of September
             23, 2014, at that time frame, how much of your job consists of
             actually serving warrants?
                     MR. HARRIS: Objection, Your Honor; relevance.
                     THE COURT: Overruled.
      A.     It just depends on case-by-case basis.
      Q.·    (By Ms. Braddy)··So did you arrest everybody on the warrant
             list that day?
      A.     No, ma'am.

Appellant’s Brief                                                                   Page 9
      Q.     And how did -- you just decided to choose Mr. Baxley to go
             and arrest on these warrants?
      A.     We were out and drove by his residence and seen him in the
             yard, and I had knowledge that he was wanted, so, yes, I
             stopped and made the arrest.

(Vol. 5; p. 198; l. 6-21). The record evidence like the foregoing can reveal one and

only one conclusion. Estes, an experienced police officer, used the two traffic

warrants from a municipal court as a pretext to go fishing – that is, to see if he could

hook Baxley. Estes succeeded. Estes caught his fish.

      Maybe one can credit Estes’s creativity and resourcefulness. However, and as

happened here, law enforcement should not be allowed to evade the general rule

requiring that warrants be used.

                                       PRAYER

      WHEREFORE, premises considered, Appellant, James Arthur Baxley,

respectfully requests that the judgment of the trial court be reversed and remanded

for new trial, and/or for such other and further relief to which he may establish

himself entitled.

                                               Respectfully submitted,

                                               By: __/s/ Wade A. Forsman_
                                               Wade A. Forsman
                                               State Bar No. 07264257
                                               P.O. Box 918
                                               Sulphur Springs, TX 75483-0918
                                               903.689.4144 East Texas
Appellant’s Brief                                                                Page 10
                                              972.499.4004 Dallas/Fort Worth
                                              903.689.7001 Facsimile
                                              wade@forsmanlaw.com

                                              Attorney for Appellant
                                              James Arthur Baxley


                          CERTIFICATE OF WORD COUNT

      Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 2,636 words.

                                                     __/s/ Wade A. Forsman_
                                                     Wade A. Forsman


                             CERTIFICATE OF SERVICE

      This is to certify that on July 13, 2015, I served a true and correct copy of the
above and foregoing Appellant’s Brief by email on Matthew Howard Harris,
Assistant District Attorney, at 114 Main Street, Sulphur Springs, Texas 75482.

                                                     __/s/ Wade A. Forsman_
                                                     Wade A. Forsman




Appellant’s Brief                                                               Page 11
