

Opinion issued June 30,
2011.

In The
Court of Appeals
For The
First District of Texas
————————————
No. 01-10-00124-CR
————————————
Ashton
Joel Carmen, Appellant
V.
The State of Texas,
Appellee

 

 
On Appeal from the 300th District
Court
Brazoria
County, Texas

Trial Court Cause No. 51,101
 

 
 
O P I N I O N
          Appellant,
Ashton Joel Carmen, appeals a judgment convicting him for the murder of his
father, Reginald Carmen.  See Tex.
Penal Code Ann. § 19.02 (West 2003).  Appellant pleaded not guilty before the
jury.  The jury found appellant guilty of
murder, returned a negative finding on the special issue of sudden passion, and
assessed his punishment at life confinement in the institutional division of
the Texas Department of Criminal Justice and a $5,000 fine.  In three issues, appellant contends that (1) the
trial court erred by admitting photographs and a video recording made during a
walkthrough of appellant’s father’s house, (2) his trial counsel rendered
ineffective assistance by failing to timely and properly object to the
admission of physical evidence seized from the house, and (3) the trial court
erred by overruling his objection to the State’s argument on punishment that
“if [appellant] kills again, that is on you.” 
We conclude that the trial court properly admitted the evidence, that
appellant’s trial counsel was not ineffective, and that the trial court
properly overruled appellant’s objection to the State’s argument on punishment.  We affirm.
Background
          Appellant was born prematurely to a
mother who had used crack cocaine during her pregnancy.  Although he initially lived with his mother,
who continued to use cocaine, appellant’s maternal grandmother was his primary
caretaker.  When he was about six years
old, appellant went to live with his father.
          The next year, appellant’s father
whipped appellant with a belt, causing bruising on the side of appellant’s
body.  After a teacher discovered the
bruises, appellant was taken to the hospital. 
Child Protective Services removed appellant from his father’s custody
and placed him with his mother.  Six
months later, after appellant’s father had completed anger management classes, appellant
returned to live with his father.
          In the years before his father’s death,
appellant’s behavior and grades in school deteriorated.  His father, being a strict disciplinarian, meted
out punishments, which included whipping appellant with a belt and prohibiting him
from seeing his friends.  Appellant attempted
to run away numerous times.  Less than a
month before his father’s death, a juvenile court placed appellant on probation
for truancy subject to certain conditions, including a requirement that he
attend school every day.        
          On December 8, 2005, appellant
returned to his father’s house after school. 
His father’s bedroom, the master bedroom, was located on the ground
floor of the house.  The door to the master
bedroom was locked.  Appellant went into
the backyard and removed a screen covering a window to the master bedroom.  He broke the glass and entered through the
window.  Appellant located a locked suitcase
containing several thousand dollars cash and a .40-caliber SIG Sauer
semi-automatic pistol.  Taking the
suitcase with him, appellant exited the room and went upstairs.  Using a hammer, appellant forced the suitcase
open, and he removed about $2,000 dollars and the pistol.           After
his father arrived home, appellant fired multiple gunshot rounds from the
pistol at his father, killing him. 
Appellant placed a bandana over his father’s face, took a shower
upstairs, and then left in his father’s car.
          After appellant’s father failed to
show up to work the next morning, Friday, December 9, 2005, his employer
contacted the police.  The employer
provided the police with appellant’s father’s address and a description of his
car, a black Lexus.  Officers DeSilvia
and Herrera of the Pearland Police Department were dispatched to the house,
arriving around 9:30 a.m.  Officer
DeSilvia knocked on the door and rang the doorbell but received no response.  The front door was locked.  The officers looked through a window above
the door and saw a man lying on his back, not moving, with something covering
his face.
          Officer Herrera kicked the door open,
setting off the security alarm.  The
officers discovered that the man lying on the floor—appellant’s father—was deceased; his body was
slightly stiff with rigor mortis, and he did not have shoes on his feet.  Near the body lay spent shell casings and
live rounds of ammunition.  Officer
Herrera walked from the foyer through the laundry room into the garage.  The garage door was closed, and the black
Lexus was missing.
          After other officers arrived, Officers
DeSilvia and Herrera searched the rest of the house, looking for other victims
and suspects.  On the dining-room table,
they found a can of roach spray, a knife, a golf club, an open bottle of Dr.
Pepper, and an earplug.  Finding the door
to the master bedroom locked, they proceeded upstairs.  On the stairs, they found a spent shell
casing.  In appellant’s bedroom, they
found an earplug package matching the earplug found in the dining room.  After checking the upstairs, they returned to
the locked master bedroom door, which Officer DeSilvia kicked open.  The room was very messy; some of the dresser drawers
had been emptied out.  On the floor lay
an Airsoft gun resembling a small machine gun. 
After searching the house, Officer DeSilvia secured the premises and stood
in front of the house to ensure that only authorized persons entered the
property.
          Officer Bort, a crime scene
investigator, arrived about 30 minutes after Officers DeSilivia and Herrera.  In the backyard, Officer Bort saw the screen
and glass from the broken window.  He
then conducted a walkthrough of the house. 
In the foyer, he saw a black glove, a hat, a bag of groceries, and some
mail near the body.  He also saw bullet
holes in the walls.  In the laundry room,
he saw the appellant’s father’s shoes.  In
the kitchen, he saw a box of ammunition next to a SIG Sauer owner’s manual.  He also saw a little napkin with what
appeared to be a bloodstain.  Upstairs, he
saw a Nike glove package on a ledge overlooking the foyer.  In the entertainment room, he saw a
briefcase, which appeared to have been forced open with a nearby hammer.  He also saw a Lexus manual and a SIG Sauer
magazine.  Officer Bort recorded a video
of his walkthrough and took photographs of the items he observed. 
          That same morning, the general manager
of a hotel in Texas City discovered in the parking lot an unidentified black
Lexus, which was missing a front tire.  Later
that morning, the manager noticed that the Lexus had been moved to a nearby Sears
parking lot.  The manager called the
police, who informed her that the car had been involved in a crime.  The manager contacted Sears and discovered
that Sears employees were fixing the car’s tire.  The manager told the Sears employees to work
slowly because the police were en route. 
When Texas City police arrived, they found both appellant and his
father’s car.
          Officer Hunt of the Pearland Police
Department was the detective assigned to investigate the death of appellant’s
father.  He telephoned appellant’s school
and learned that appellant was absent. 
He then contacted appellant’s probation officer, who drafted a directive
to apprehend based on appellant’s violation of the conditions of his probation.
 After learning that the Texas City
police had found appellant and the car, Officer Hunt went to the Sears parking
lot.  Shortly before 11:00 a.m., Texas
City police took appellant into custody pursuant to a directive to apprehend.  In the Sears parking lot, Officer Hunt
observed a pistol in plain view on the floorboard of the back seat of the Lexus;
however, he did not seize the pistol at that time.  Both appellant and the car were transported
back to Brazoria County.
          Around 1:30 p.m., a magistrate judge
read appellant his rights outside the presence of law enforcement
personnel.  After waiving his rights,
appellant gave an oral statement to police, in which he admitted killing his
father.  Appellant stated that he was
having some problems with gang members from school and that he had heard that
they were going to come over to his house. 
He accordingly took the weapon to protect himself.  Appellant claimed that he shot his father
because he had mistaken him for a gang member. 
Within an hour, appellant disavowed this statement.
          Appellant reduced his second story to
a written statement.  He stated that his
parents had engaged in an argument about his mother’s picking him up early from
school and that his father had told her that he was going to impose corporal
punishment on appellant sometime soon. 
Appellant claimed that this brought back memories of an incident seven
years before in which his father’s punishment resulted in appellant’s
hospitalization.
          Shortly before 4:30 p.m. that same afternoon,
December 9, the police obtained search-and-seizure warrants for appellant’s
father’s house and car.  From the house, Officer
Bort seized the items that he had observed and documented during his
walkthrough.  From the car, he seized the
pistol, which Officer Hunt had previously seen in plain view.
          Before trial, appellant’s counsel
filed two motions to suppress.  In the
first motion to suppress, appellant’s counsel contended that the police illegally
arrested appellant without a valid warrant, probable cause, or reasonable
suspicion.  The first motion sought to
suppress (1) evidence seized as a result of appellant’s arrest, (2) evidence
seized as a result of the search of appellant’s person, papers, and effects,
and (3) any written or oral statements that appellant made after his
arrest.  In the second motion to
suppress, appellant’s counsel contended that the police had illegally arrested
appellant without a valid warrant or authority to arrest without a warrant and
that they had illegally detained appellant because they intensively questioned
him before taking him to see a magistrate; no lawful commitment or capias had
been issued; no arrest warrant had been issued; and the complaint against
appellant was legally defective. 
Appellant’s counsel further contended that the police, without authority,
made promises to appellant to induce him to sign his written confession and
that appellant was not properly Mirandized.  The second motion sought to suppress (1) any
written or oral confession that appellant made at the time of his arrest or
during his subsequent detention, (2) any evidence obtained as a result of any
statement that appellant made at the time of his arrest or during his
subsequent detention, and (3) any evidence obtained by a search of appellant or
appellant’s premises without proper search warrant.
          At the pre-trial hearing on the
motions to suppress, appellant’s counsel argued that the recording of
appellant’s oral statement should be excluded because the magistrate failed to
make a determination of voluntariness, reduce it to writing, sign it, and date
it.  Appellant’s counsel also argued that
an interruption during appellant’s interview made the entire written statement
inadmissible and that appellant never waived his rights voluntarily,
intelligently, or knowingly.  The trial
court found that appellant was properly warned of his rights, understood his
rights, and provided his statement to the police freely and voluntarily.  The trial court also found that the police
properly searched appellant’s person, papers, and effects and that evidence was
properly seized as a result of that search. 
The trial court accordingly denied both motions.
          At a subsequent pre-trial hearing, the
State offered into evidence a copy of the warrant to search appellant’s
residence and a copy of the supporting affidavit for the purpose of
establishing that the State had obtained a valid search warrant and performed a
valid search.  Appellant’s counsel
objected on the ground that the State must produce the original warrant.  The court overruled this objection.
          During the guilt–innocence phase of trial, Officer
Bort testified to what he observed during his walkthrough of the house, which
occurred after the house had been secured but before the search-and-seizure warrant
had been issued.  Appellant’s counsel did
not object to Officer Bort’s testimony describing his observations.  The State introduced the photographs and video
recording made during the walkthrough.  Appellant’s
counsel objected that the photographs and video recording were the product of an
unreasonable search and seizure.  The
trial court overruled these objections.  The
State then introduced the items seized from the house.  Appellant’s counsel objected based on the
fact the supporting affidavit was a copy and not an original document.  Appellant’s counsel did not object to the
admission of the items seized on the grounds that they were the product of an
unreasonable search and seizure.
          After the guilt–innocence phase of trial,
the jury returned a verdict of guilty.  The
trial then proceeded to the punishment phase. 
During closing arguments, the State argued, “Listen, you know he killed
once.  That’s not on you.  To a degree, if he kills again, that is on
you.”  Appellant’s counsel objected on
the ground that this comment went beyond a proper plea for law enforcement by
making the jury individually and personally responsible for the acts of appellant.  The trial court overruled the objection.
          The jury found against appellant by a
preponderance of the evidence on the special issue of whether appellant had acted
under the immediate influence of a sudden passion arising from adequate cause.  It assessed appellant’s punishment at life
imprisonment and a $5,000 fine.
Admission of Photographs and Video of Pre-Warrant Walkthrough
          In his first issue, appellant contends
that the trial court erred by admitting photographs and a video recording made
when Officer Bort conducted a walkthrough of the interior of appellant’s father’s
house because they were made prior to the officers’ obtaining a search warrant
and were the product of an unreasonable search and seizure.  
          A.      Standard of
Review
          We review the admission of evidence by
the trial court for an abuse of discretion. 
McDonald v. State, 179 S.W.3d
571, 576 (Tex. Crim. App. 2005).  So long
as the trial court’s decision is within the zone of reasonable disagreement, we
will not disturb it on appeal.  Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991).
          B.      Applicable Law
The Fourth Amendment guarantees the right of individuals to
be “secure in their persons, houses, papers and effects against unreasonable
searches and seizures.”  U.S. Const. amend. IV.  A warrantless search by police is
presumptively unreasonable.  Gutierrez v. State, 221 S.W.3d 680, 685
(Tex. Crim. App. 2007) (citing Payton v.
New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980)).  However, the warrant requirement may be set
aside when the State shows that exigent circumstances existed at the time of
the warrantless search.  Id.  The State bears the burden to prove that such
exigent circumstances existed through a two-step process.  Id.  First, the police must have probable cause to
enter or search a specific location.  Id.  Second, the exigent circumstance must require
the police to make an immediate warrantless entry to a particular place.  Id.
Our jurisprudence recognizes three exigent circumstances
that justify an immediate warrantless entry by police officers.  Id.  The first exigent circumstance is when the
police must provide assistance to persons whom the police reasonably believe
are in need of assistance.  Id.  The second exigent circumstance is when the
police need to protect themselves from persons whom the police reasonably
believe to be present, armed, and dangerous.  Id.  The third exigent circumstance is when the
police attempt to prevent destruction of evidence or contraband.  Id.
Under the “fruit of the poisonous
tree” doctrine, evidence may not be used against a criminal defendant if it was
obtained by exploitation of an illegal search or seizure and not by means
sufficiently distinguishable to be purged of the primary taint.  Wong
Sun v. United States, 371 U.S. 471, 484, 488, 83 S. Ct. 407, 417 (1963); Thornton v. State, 145 S.W.3d 228, 232
(Tex. Crim. App. 2004); see also Tex. Code Crim. Proc. art 38.23(a)
(West 2005) (“No evidence obtained . . . in violation of
. . . the Constitution or laws of the United States of America, shall
be admitted in evidence against the accused on the trial of any criminal
case.”).
The plain-view doctrine is more than a mere exception to the
warrant requirement of the Fourth Amendment.  Walter
v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (citing Texas v. Brown, 460 U.S. 730, 738–39,
103 S. Ct. 1535, 1541 (1983)).  Because
the article is already in plain view, neither its observation nor its seizure
involves any invasion of privacy.  Id. 
To satisfy the requirements of a plain-view analysis of obtained
evidence, however, the police must meet two requirements.  Id.  First, the police must have a right to be
in the location where the article is in plain view.  Id.  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.  Id. (citing Horton v.
California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2306 (1990)).
Where officers are privileged under the plain-view doctrine
to observe or seize an article, they are likewise privileged to take a
photograph or make a video recording of that article.  See
Gordon v. State, 640 S.W.2d 743, 754 (Tex. Crim. App. 1982) (photographs of
homicide scene taken during course of search pursuant to warrant were not
inadmissible on ground that photographs were not enumerated in article 18.02;
since search was valid, officers did not exceed scope of warrant in making
photographs of what was plainly visible for preservation of evidence); Chase v. State, 508 S.W.2d 605, 611
(Tex. Crim. App. 1974) (police officers did not go beyond scope of warrant by
taking photographs of plyboard used in murder where officers were lawfully on
the premises and taking of photographs did not constitute search and seizure); Tocher v. State, 501 S.W.2d 921, 925
(Tex. Crim. App. 1973) (photographs of murder scene taken by officers who were
on scene during execution of valid search warrant depicted only what was in
plain view and did not constitute search and seizure).
          C.      Analysis
          Appellant concedes that Officers
DeSilvia and Herrera properly searched the house pursuant to their community
caretaking duty and that, under the plain-view doctrine, they could have seized
outright any of the evidence photographed or videotaped.  However, he contends that, once they secured
the scene, after determining that there were no other victims or suspects on
the premises, the exigencies that had justified the warrantless search came to
an end.  Accordingly, appellant reasons
that Officer Bort’s subsequent walkthrough constituted an unreasonable,
warrantless search, of which the photographs and the video were products.  Appellant does not argue that Officer Bort’s
search was any more expansive or intrusive than the permissible search already
conducted by Officers DeSilvia and Herrera.
          We agree with appellant that the
exigencies that justified the initial warrantless search had ended before
Officer Bort’s search began.  The question,
therefore, is whether a subsequent search that is no more intrusive or
expansive than the initial search is unreasonable merely because the exigencies
have ended.  “[O]nce the privacy of a
residence has lawfully been invaded during an exigency, it makes no sense to
require a warrant for other officers to enter and complete what officers on the
scene could have properly done.”  Johnson v. State, 161 S.W.3d 176, 183
(Tex. App.—Texarkana 2005), aff’d
on other grounds, 226 S.W.3d 439, 445 (Tex. Crim. App. 2007) (“Although the
officers in the present case may have gone in and out of the door three times
during their initial investigation, the lawfulness of a search is not
determined by the number of times that officers cross the threshold.”); see also Rothstein v. State, 267 S.W.3d 366, 375–76 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref’d) (holding that subsequent entry to view contraband already seen in
plain view during initial search was “incidental to and a valid continuation of
the initial exigent circumstances search”) (citing Shoaf v. State, 706 S.W.2d 170, 175 (Tex. App.—Fort Worth 1986, pet. ref’d)
(picking up, tagging, and preserving items was administrative duty incidental
to original entry)).  Because the
subsequent search merely documented what had already been observed in plain
view during the initial, reasonable search, we conclude that trial court
properly overruled appellant’s objections.
          Appellant’s first issue is overruled.
Ineffective
Assistance of Counsel
          In his second issue, appellant
contends that his trial counsel rendered ineffective assistance by failing to
lodge a timely and proper objection to the physical evidence seized from the
interior of appellant’s father’s house through a motion to suppress or at
trial.
          A.      Standard
of Review of Ineffective Assistance
          To
prevail on an ineffective-assistance-of-counsel claim, the appellant must
demonstrate, by a preponderance of the evidence, that (1) his trial counsel’s
performance was deficient and (2) a reasonable probability exists that, but for
the deficiency, the result of the proceeding would have been different.  Strickland
v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068
(1984).  Under the first prong of Strickland, the appellant must show that
his counsel’s performance fell below an objective standard of reasonableness,
which does not require showing that counsel’s representation was without
error.  Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999).  The second prong
of Strickland requires the appellant
to demonstrate prejudice—a reasonable probability that, but for his counsel’s
unprofessional errors, the result of the proceeding would have been
different.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.  “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”  Strickland,
466 U.S. at 694, 104 S. Ct. at 2068.  
          We
indulge a strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance, and therefore the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.”  Id. at 689, 104 S. Ct. at 2065; Williams
v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).  Our review is highly deferential to counsel,
and we do not speculate regarding counsel’s trial strategy.  Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  To prevail, the appellant must provide an
appellate record that affirmatively demonstrates that counsel’s performance was
not based on sound strategy.  Mallett v. State, 65 S.W.3d 59, 63 (Tex.
Crim. App. 2001); see Thompson, 9
S.W.3d at 813 (holding that record must affirmatively demonstrate alleged
ineffectiveness).  If the record is
silent regarding the reasons for counsel’s conduct—as it usually is on direct appeal—then the record is insufficient to
overcome the presumption that counsel followed a legitimate trial
strategy.  Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813–14; see also Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001) (“[I]n the absence of evidence of counsel’s reasons
for the challenged conduct, an appellate court . . . will
not conclude the challenged conduct constituted deficient performance unless
the conduct was so outrageous that no competent attorney would have engaged in
it.”).
          Even
the failure to file a motion to suppress evidence is not per se ineffective
assistance of counsel.  Kimmelman v. Morrison, 477 U.S. 365,
384, 106 S. Ct. 2574, 2587 (1986). 
“Counsel is not required to engage in the filing of futile
motions.”  Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 2007, no
pet.) (citing Mooney v. State, 817
S.W.2d 693, 698 (Tex. Crim. App. 1991)). 
Rather, to prevail on an ineffective-assistance claim based on counsel’s
failure to file a motion to suppress, “an appellant must show by a
preponderance of the evidence that the result of the proceeding would have been
different—i.e.,
that the motion to suppress would have been granted and that the remaining
evidence would have been insufficient to support his conviction.”  Id.
(citing Jackson v. State, 973 S.W.2d
954, 956–57 (Tex. Crim. App. 1998)).  To
meet this burden, the appellant must produce evidence that defeats the
presumption of proper police conduct.  Id. (citing Jackson, 973 S.W.2d at 957). 
The appellant must therefore develop facts and details of the search
sufficient to conclude that the search is invalid.  Id.
(citing Jackson, 973 S.W.2d at
957).  Simply contending that there “may
be questions about the validity of the search” is not enough to support an
ineffective-assistance claim based on counsel’s failure to move to suppress
evidence.  Jackson, 973 S.W.2d at 957.
We review a trial court’s ruling on a motion to
suppress under a bifurcated standard of review. 
McKissick v. State, 209 S.W.3d
205, 211 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  We give almost total deference to the trial
court’s determination of historical facts that depend on credibility, while we
review de novo the trial court’s application of the law to those facts.  Id.  Thus, we review de novo the trial court’s
application of the law of search and seizure and probable cause.  Id.  However, our review of an affidavit in support
of a search warrant is not de novo; rather, great deference is given to the
magistrate’s determination of probable cause. 
Id.
B.      Validity of Search Warrant
          Appellant contends that his trial
counsel was ineffective by failing to properly object to the admission of the
physical evidence seized from his father’s home pursuant to the search warrant
and obtain its suppression. 
Specifically, appellant contends that his counsel should have objected
on the ground that the search warrant was an evidentiary search warrant that failed
to state probable cause and failed to meet the requirements of an evidentiary
search warrant.
Article 18.01, subsection (b) of the Code of Criminal
Procedure provides that no search warrant may issue unless supported by an
affidavit setting forth substantial facts establishing probable cause for its
issuance.  Tex. Code Crim. Proc. Ann. arts. 1.06, 18.01(b) (West 2005
& Supp. 2009).  “The test for
determination of probable cause is whether the magistrate had a substantial
basis for concluding that a search would uncover evidence of wrongdoing.” McKissick, 209 S.W.3d at 211 (citing Illinois v. Gates, 462 U.S. 213, 236–37,
103 S. Ct. 2317, 2331 (1983)).  Probable
cause exists when, under the totality of the circumstances, the facts submitted
to the magistrate are sufficient to justify a conclusion that the object of the
search is probably on the premises to be searched at the time the warrant is
issued.  Id.  A reviewing court may
consider only the facts found within the four corners of the affidavit when
evaluating a complaint that a search warrant affidavit does not establish
probable cause.  Id. at 212.  Reasonable
inferences may be drawn from the affidavit, and the affidavit must be
interpreted in a common sense and realistic manner.  Id.
Article 18.02 of the Texas Code of Criminal Procedure
sets forth 12 grounds for the issuance of search warrants:
A
search warrant may be issued to search for and seize:
(1)       property acquired by theft or in any other
manner which makes its acquisition a penal offense;
(2)       property specially designed, made, or adapted
for or commonly used in the commission of an offense;
(3)       arms and munitions kept or prepared for the
purposes of insurrection or riot;
(4)       weapons prohibited by the Penal Code;
(5)       gambling devices or equipment, altered
gambling equipment, or gambling paraphernalia;
(6)       obscene materials kept or prepared for
commercial distribution or exhibition, subject to the additional rules set
forth by law;
(7)       a drug, controlled substance, immediate
precursor, chemical precursor, or other controlled substance property,
including an apparatus or paraphernalia kept, prepared, or manufactured in violation
of the laws of this state;
(8)       any property the possession of which is
prohibited by law;
(9)       implements or instruments used in the
commission of a crime;
(10)  property or items, except the personal
writings by the accused, constituting evidence of an offense or constituting
evidence tending to show that a particular person committed an offense;
(11)  persons; or
(12)  contraband subject to forfeiture under
Chapter 59 of this code.
 Tex.
Code Crim. Proc. Ann. arts. 18.02.  Other than subdivision (11), concerning persons,
the other subdivisions concern the search and seizure of property.  See id.  Subdivisions (1) through (9) and (12)
describe specific categories of property that may be searched and seized.  See id.  In contrast, subdivision (10) is a catchall ground
that applies only if the other articles do not. 
State v. Acosta, 99 S.W.3d
301, 304 (Tex. App.—Corpus Christi 2003, pet. ref’d) (quoting State v. Young, 8 S.W.3d 695, 698 (Tex.
App.—Fort Worth 1999, no pet.)).  Property
subject to seizure under section 18.02(10) is often referred to as “mere
evidence.”  Young, 8 S.W.3d at 699; Reeves
v. State, 969 S.W.2d 471, 482 (Tex. App.—Waco 1998, pet. ref’d).  “Mere evidence is evidence connected with a
crime, but does not consist of fruits, instrumentalities, or contraband.”  Joseph
v. State, 807 S.W.2d 303, 307 (Tex. Crim. App. 1991).  Accordingly, a warrant issued under section
18.02(10) is known as an “evidentiary search warrant” or a “mere evidentiary
search warrant.”  Porath v. State, 148 S.W.3d 402, 408 (Tex. App.—Houston [14th Dist.] 2004,
no pet.); Young, 8 S.W.3d at 698.
          A mere-evidentiary search warrant
differs from a warrant issued under the other subdivisions in two pertinent
respects.  First, unlike warrants issued
under subdivisions (1) through (9) and (12), a warrant may be issued under subdivision
(10) only if accompanied by an affidavit setting forth sufficient facts to
establish probable cause:
(1)       that a specific offense has been committed,
 
(2)       that the specifically described property or
items that are to be searched for or seized constitute evidence of that offense
or evidence that a particular person committed that offense, and
 
(3)       that the property or items constituting
evidence to be searched for or seized are located at or on the particular person,
place, or thing to be searched.
 
Tex. Code Crim. Proc. Ann. art.18.01(c).  Second, although it is well established that
the plain-view exception is available during searches conducted pursuant to
warrants issued under the other subdivisions, “there is a split of authority
regarding whether the ‘plain view’ exception is available when unnamed items
are seized during the execution of an ‘evidentiary search warrant’ issued
pursuant to [article 18.02(10)].”  Zarychta v. State, 44 S.W.3d 155, 167
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see Joseph,
807 S.W.2d at 307 & n.4; Young, 8
S.W.3d at 699 (“‘plain view’ evidence may be properly seized with respect to
searches authorized by warrants issued under subsections (1) through (9) and
(12) of article 18.02”).  Some courts of
appeals have held that, during a search conducted pursuant to a warrant issued
under article 18.02(10), the police may seize only those items specifically
described[1]
in the search warrant even if they discover additional items that would otherwise
fall within the plain-view exception.  Young, 8 S.W.3d at 699; Scoggan v. State, 736 S.W.2d 239, 243–45 (Tex. App.—Corpus Christi 1987), rev’d on other grounds, 799 S.W.2d 679
(Tex. Crim. App. 1990); see Tex. Code Crim. Proc. Ann. art 18.01(d)
(“Only the specifically described property or items set forth in a search
warrant issued under Subdivision (10) of Article 18.02 of this code or
property, items or contraband enumerated in Subdivisions (1) through (9) or in
Subdivision (12) of Article 18.02 of this code may be seized.”).  But see
Bower v. State, 769 S.W.2d 887, 906 (Tex. Crim. App. 1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.
Crim. App. 1991).
                    1.       Characterizing the Search Warrant
          Both the heightened probable-cause
requirement in article 18.01(c) and the limitation on the plain-view doctrine apply
only if a warrant is issued under article 18.02(10) and not under any of the
other subdivisions of article 18.02.  See Tex.
Code Crim. Proc. Ann. art.18.01(c); Joseph, 807 S.W.2d at 307 & n.4; Young, 8 S.W.3d at 699.  Therefore, we must, as a preliminary matter,
characterize the warrant to search appellant’s father’s house.
          “[T]he classification of a warrant is
an issue of law for the courts to decide.” 
Young, 8 S.W.3d at 698.  In determining which subdivision a warrant is
classified under, an appellate court looks to the language of the warrant and
the statements made in the affidavit; it is not bound by the title of the
warrant or a police officer’s later characterization of the warrant.  Acosta,
99 S.W.3d at 305; Young, 8 S.W.3d at
698.  If a warrant authorizes a search
for both “mere evidence” and items listed under another ground for search and seizure,
the warrant is not a mere-evidentiary search warrant.  Zarychta,
44 S.W.3d at 168; Young, 8 S.W.3d
695, 698–99.
Paragraph two of the affidavit supporting the search
warrant for appellant’s father’s house states the ground for issuance as
follows:
There
is at said suspected place and premises property or items, accept [sic] the personal writings by the accused,
constituting evidence of an offense or constituting evidence tending to show
that a particular person committed an offense as follows:
 
Any object used in the commission of murder,
any physical evidence relating to the crime of murder, any evidence that
characterized the nature of the relationship between the [sic] Reginald Carmen
and Ashton Carmen.  Including the body of
the deceased, shell casings, bullets, weapons, blood, hair, fibers, clothing,
DNA, [or] electronically captured data from answering machine, computer, and
alarm system.
 
Because
it authorizes the search for and seizure of “[a]ny object used in the commission
of [the] murder . . . [i]ncluding . . . shell casings,
bullets, [and] weapons,” the present warrant was issued pursuant to article
18.02(9), which authorizes the search for and seizure of “implements or
instruments used in the commission of a crime . . . .”  Tex.
Code Crim. Proc. Ann. art. 18.02(9).  Because it was issued under article 18.02(9),
the present warrant was not issued under article 18.02(10), and it is therefore
not a mere-evidentiary search warrant.  See Zarychta,
44 S.W.3d at 168; Young, 8 S.W.3d at
698–99; see also Acosta, 99 S.W.3d at 304 (Article 18.02(10) “applies only when the
other articles do not.”) (quoting Young,
8 S.W.3d at 698).  
                    2.       Failure to Meet Heightened Probable-Cause
Requirement
          Appellant concedes that the affidavit sets
forth facts sufficient to establish probable cause that a murder had been
committed.  See Tex. Code Crim. Proc.
Ann. art. 18.01(c)(1).  However,
appellant contends that the affidavit fails to set forth facts to establish
probable cause that hair, fibers, clothing, DNA, or electronically captured
data from an answering machine, computer, or alarm system constitutes either evidence
of the murder’s occurrence or evidence that appellant in particular committed
the murder.  See id. art. 18.01(c)(2).  Appellant
also contends that the affidavit fails to set forth facts to establish probable
cause that hair, fibers, clothing, DNA, or electronically captured data from an
answering machine, computer, or alarm system were located at the address.  See id.
art. 18.01(c)(3).  
          However, because the present search
warrant is not a mere-evidentiary search warrant, it is not subject to the heightened
probable-cause requirement.  See Tex.
Code Crim. Proc. Ann. art. 18.01(c).  Therefore, appellant’s argument fails.  Moreover, even if the heightened probable-cause
requirement did apply and the affidavit and the warrant were inadequate as to
these categories of evidence, appellant failed to show any resulting prejudice because
no evidence within any of these categories was seized or offered against him at
trial.
                              3.       Seizure
of Evidence Not Specified
          Appellant contends that 25 items
seized from his father’s house were subject to suppression because they were
not specifically described in the affidavit or warrant.[2]
 See
Young, 8 S.W.3d at 699; Scoggan, 736 S.W.2d at 243–45.  However, because the present search warrant
is not a mere-evidentiary search warrant, it is not subject to the limitation
on the plain-view doctrine.  See Joseph,
807 S.W.2d at 307 & n.4; Young, 8
S.W.3d at 699.  Each of the 25 items was observed,
and photographed, in plain view during Officer Bort’s walkthrough, which, as we
explained above, was permissible.  Because
these items fell within the plain-view warrant exception, we conclude that
appellant’s proposed objection is without merit.  See
Walter,
28 S.W.3d at 541.  We conclude that appellant’s
trial counsel was not ineffective by failing to raise a meritless objection.  
          We overrule appellant’s second point of error.
The State’s Closing Argument on Punishment
          In his third issue, appellant contends
that the trial court erred by overruling his objection to the State’s punishment-phase
argument to the jury that “if he kills again, that is on you.”
          A.      Applicable Law
          The
law provides for and presumes a fair trial free from improper argument by the
State.  Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).  In general, proper jury argument encompasses
one of the following:  (1) a summation of
the evidence presented at trial; (2) a reasonable deduction drawn from that
evidence; (3) an answer to the opposing counsel’s argument; or (4) a plea for
law enforcement.  Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Sandoval v. State, 52 S.W.3d 851, 857
(Tex. App.—Houston
[1st Dist.] 2001, pet. ref’d).  A proper
plea for law enforcement may argue the relationship between the jury’s verdict
and (1) the deterrence of crime in general, (2) the deterrence of specific
crimes, (3) the impact it will have on the community at large, or (4) the
impact it will have on narrower segments of the community (e.g., law enforcement
officers, highway drivers, women, or children). 
Borjan v. State, 787 S.W.2d
53, 55–56
(Tex. Crim. App. 1990).  However, the
State may not argue that the community at large or a particular segment of the
community expects or demands a guilty verdict or a particular punishment.  Id.
at 56.  The State may not ask the jurors
to place themselves in the shoes of the victim. 
Boyington v. State, 738 S.W.2d
704, 709 (Tex. App.—Houston
[1st Dist.] 1985, no pet.).  To determine
whether a party’s argument properly falls within one of these categories, we
must consider the argument in light of the entire record.  Sandoval,
52 S.W.3d at 857.
          B.      Analysis
          Appellant
contends that the State’s argument was not reasonable because it intimidates
jurors by placing them in the shoes of a future victim.  See
Boyington, 738 S.W.2d at 709.  The State’s argument in no way suggests that
the jurors will themselves be the victims. 
The State’s argument is merely that, if there were a future victim, the
jurors would bear some part of the moral responsibility because they had the
option to prevent that outcome.  See Rocha v. State, 16 S.W.3d 1, 21–22 (Tex. Crim. App. 2000) (noting
that argument that places moral responsibility upon jury for potential subsequent
murder is legitimate plea for law enforcement). 
Just as it is a proper plea for law enforcement to argue the
relationship between the present verdict and the deterrence of future crimes,
it is also proper to argue the relationship between the present verdict and incapacitating
the defendant from committing future crimes. 
See Meadoux v. State, 325
S.W.3d 189, 195 (Tex. Crim. App. 2010) (“Four goals of penal sanctions have
been recognized as legitimate: retribution, deterrence, incapacitation, and
rehabilitation.”).
          Appellant
also argues that the State’s argument interjects new facts not on the record relating
to appellant’s propensity to commit a future murder.  The State’s argument does not indicate the
likelihood of such a future occurrence. 
It merely poses the hypothetical possibility that a person who has
murdered once could do so again.  The
evidence at trial supports the State’s theory that appellant prepared for the
murder by practicing firing the pistol, that appellant lay in wait in order to
ambush his father when he arrived home after work, and that appellant showed no
emotion or remorse after killing his father. 
Additionally, appellant’s mother testified that, about a month before
killing his father, appellant put bleach into a glass of water that his father
almost drank and that appellant had been written up by his school for assault.  We conclude that the State’s argument that
appellant might kill again was a reasonable deduction from the evidence.  Cf.
Rocha, 16 S.W.3d at 22 & n.21 (holding argument that defendant would
kill again is reasonable deduction from evidence where evidence showed that
defendant committed capital murder during robbery, participated in killing
another person, invaded home and held occupants hostage, and hid with gun in
firing position in order to ambush police officer chasing him after he robbed
bank); Cook v. State, 858 S.W.2d 467,
473–74, 477 (Tex. Crim. App.
1993) (holding argument that defendant would kill again is reasonable deduction
from evidence where evidence showed that defendant had violent past history,
that defendant had previous aggravated assault conviction, and that defendant
showed no remorse after killing).
          We overrule
appellant’s third issue.
Conclusion
          We
affirm the judgment of the trial court.
 
                                                                   
 
                                                                   Evelyn
V. Keyes
                                                                   Justice
 
Panel consists of
Justices Keyes, Higley, and Yates.[3]
 
Publish.  Tex.
R. App. P. 47.2(b).




[1]           “In
determining whether a specific warrant meets the particularity requirement, a
court must inquire whether an executing officer reading the description in the
warrant would reasonably know what items are to be seized.”  Porath
v. State, 148 S.W.3d 402, 410 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (citing United
States v. Layne, 43 F.3d 127, 132 (5th Cir. 1995)); see also Uresti v. State, 98 S.W.3d 321, 337 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“The items to be
seized must be described with sufficient particularity such that the executing
officer is left with no discretion to decide what may be seized.”) (citing Winkfield v. State, 792 S.W.2d 727, 731
(Tex. App.—Corpus Christi 1990, pet. ref’d).  “In circumstances where detailed
particularity is impossible, generic language is permissible if it
particularizes the types of items to be seized.”  Porath,
148 S.W.3d at 410; see also Uresti,
98 S.W.3d at 337 (“A search warrant may be sufficient with only a generic
description of items to be seized if a more specific description of the items
is unavailable.”).


[2]           The 25
items are:  (1) an earplug found on the
dining-room table; (2) a hammer in a brown paper bag; (3) a two-liter bottle of
Dr. Pepper; (4) can of Bengal Roach Spray; (5) an earplug from the dining-room
floor; (6) wilderness folding-blade knife found on dining-room table; (7) PMC-ammunition
box, Smith & Wesson .40 caliber, found in kitchen; (8) Sig Sauer owner’s
manual found in kitchen; (9) Airsoft Uzi 9 found in master bedroom; (10) Nike glove
package found on the upstairs ledge; (11) bandage from Nike glove found on
upstairs ledge; (12) black leather glove found upstairs; (13) earplug found on
game-room floor; (14) broken briefcase handle found in game room; (15) Sig
Sauer magazine found in game room; (16) black briefcase found in living area
upstairs; (17) earplug found in appellant’s bedroom; (18) black shirt found in
upstairs bathroom; (19) towels with stains found in upstairs bedroom; (20)
broken Panama Jack sunglasses found in computer room; (21) golf club; (22) swab
from golf club; (23) broken sunglasses piece found by the foyer, (24) black
Nike leather glove found on the foyer floor; and (25) a 20-ounce A&W Root
Beer bottle found on dining-room floor.
 


[3]           The
Honorable Leslie Brock Yates, former Justice of the Fourteenth Court of
Appeals, participating by assignment. 


