                                              OPINION
                                        No. 04-10-00286-CR

                                         Lee TOLLEFSON,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 81st Judicial District Court, Wilson County, Texas
                                  Trial Court No. 08-05-106-CRW
                              Honorable Stella Saxon, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice (concurring in the judgment only)
                  Marialyn Barnard, Justice

Delivered and Filed: August 31, 2011

AFFIRMED

           A jury convicted Lee Tollefson of murdering Barbara Coull. The trial court sentenced

Tollefson to fifty years’ confinement in the Texas Department of Criminal Justice–Institutional

Division. On appeal, Tollefson contends the trial court erred by admitting into evidence (1)

items seized during the warrantless search of his trailer, and (2) expert opinion testimony based

on testing performed by a non-testifying witness.
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                                         BACKGROUND

       It is undisputed that Tollefson shot and killed Barbara. Lee Tollefson was living in his

travel trailer on David and Barbara Coull’s property. The trailer was connected to the utilities

and was parked next to a vacant house. On the day of the incident, Tollefson testified he

received a hysterical call from Barbara, accusing him of stealing a battery charger. After he

hung up the phone, he fell asleep, only to be awakened by Barbara, who was in his trailer.

Tollefson testified Barbara was yelling and cursing at him so he told her to get out of his house.

Tollefson testified Barbara told him she was going to shoot him, and she left the trailer but

started going through his truck. Tollefson further stated he knew he had a gun in his truck and

believed Barbara was going for the gun. He claimed he leaned out the trailer door and told

Barbara to get out of his truck. As she was standing on the running board of his truck, Tollefson

testified Barbara pointed something shiny at him and said, “You are a dead son of a bitch.” He

testified this was when he grabbed a gun from his trailer and held it up so Barbara could see it

while telling her to “get the hell out of here.” He further testified Barbara kept coming at him

until she raised her right hand and allegedly pointed something shiny at him. Tollefson stated he

then shot Barbara because he believed she was going to shoot him.

       After the shooting, Tollefson called the Wilson County Sheriff’s Office to tell them he

had shot and killed Barbara. After placing the call, Tollefson took all of the firearms out of his

trailer, including the gun used to shoot Barbara and the gun from his truck, laid them on the patio

outside the vacant house, and waited for the officers to arrive. When officers arrived, Tollefson

was arrested.

       After officers arrested Tollefson and took him to the Wilson County jail, they searched

his trailer without a warrant. Officers found Tollefson’s personal papers, including a check to



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the Internal Revenue Service, a document purporting to transfer his possessions to a friend in

exchange for one dollar, a note documenting grievances against the Coulls, prescription pill

bottles that were mostly empty, and a live .25 caliber round.

        At trial, the medical examiner testified there was no way to determine where Tollefson

was standing when he shot Barbara, but Crystina Vachon, a trace-evidence analyst, estimated the

muzzle of the weapon was six to nine inches from Barbara’s clothing when it was fired. Vachon

also testified the shots could not have been fired from any farther away than three to three and a

half feet.

        A jury found Tollefson guilty of murder. He then perfected this appeal.

                                 ISSUE 1: WARRANTLESS SEARCH

        In his first issue, Tollefson contends the trial court erred by denying his motion to

suppress the evidence seized during the warrantless search of his home. Tollefson contends the

evidence was seized in contravention of the Fourth Amendment, Article 1, Section 9 of the

Texas Constitution, and Article 1.06 of the Texas Code of Criminal Procedure. The State

counters that the warrantless search was proper because several exceptions to the warrant

requirement apply: (1) responding to an emergency call, (2) the automobile exception, and (3)

plain view. The State further argues that even if the search was improper, it was harmless error

because none of the evidence admitted had any effect on the outcome of the case.

        At the pretrial hearing on the motion, Chief Deputy Johnie Deagen testified that before he

arrived at the scene, other officers had performed a protective sweep of the trailer. After

Tollefson was taken to the Wilson County jail, Chief Deputy Deagen testified that as he

approached the trailer, he saw through the open door a note with a signature propped up near the

telephone. Once inside the trailer, he testified he found prescription pill bottles, a live .25 caliber



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round, a check to the IRS, a document purporting to transfer Tollefson’s possessions to a friend,

and a handwritten note documenting Tollefson’s grievances against the Coulls. Chief Deputy

Deagen seized these items without first obtaining a search warrant.

                               Standard of Review/Applicable Law

       A trial court’s ruling on a motion to suppress is reviewed under a bifurcated standard. St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). A trial court’s determination of

historical facts will be given almost total deference, while the trial court’s application of the law

will be reviewed de novo. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

When the trial court does not issue findings of fact and none are requested, as in this case, we

imply findings that support the trial court’s ruling if the evidence, viewed in the light most

favorable to the ruling, supports those findings. See State v. Kelly, 204 S.W.3d 808, 818-19

(Tex. Crim. App. 2006). “[T]he trial judge is the sole trier of fact and judge of credibility of the

witnesses and the weight to be given to their testimony.” St. George, 237 S.W.3d at 725. A trial

court’s ruling on a motion to suppress will be upheld if there is any valid theory of applicable

law to the case, even if the trial court did not base its decision on that theory. State v. Steelman,

93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

       The Fourth Amendment to the United States Constitution and Article I, Section 9 of the

Texas Constitution guarantee the right to be secure against unreasonable searches. U.S. CONST.

amend. IV; TEX. CONST. art. I, § 9. A search or seizure conducted without a warrant is per se

unreasonable absent a recognized exception to the warrant requirement. Katz v. United States,

389 U.S. 347, 357 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).




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       The State argues three exceptions to the warrant requirement were applicable in this case:

(1) responding to an emergency call; (2) the automobile exception; and (3) plain view. We will

address each exception in turn.

                                  Responding to an Emergency Call

       The State relies on Johnson v. State to argue that because Tollefson called police to report

the shooting, he implicitly consented to the search of his travel trailer. 226 S.W.3d 439 (Tex.

Crim. App. 2007). Tollefson responds that Johnson is distinguishable.

       In Johnson, the defendant called the police to report she had shot and killed her husband.

Id. at 441.   Police officers arrived at the defendant’s and victim’s home, handcuffed the

defendant, and placed her in the back of a patrol car. Id. The husband’s body was found inside

the house and during the search complained of, the defendant was in the back of a police car and

asked if the officers wanted her to go back in and show them where the couple was standing

when the victim was shot. Id.

       “[W]hen a homeowner makes a 911 call and requests immediate assistance because of an

emergency, he is indicating his consent to (1) the arrival and entry of the responding officers to

resolve that emergency, and (2) absent any evidence of the revocation of that consent, an

objectively reasonable limited investigation by the responding officers into the emergency that

the homeowner reported.” Id. at 444. The Texas Court of Criminal Appeals held that because

the defendant “was still at the scene as the officers continued to investigate and saw them going

into her home, she was clearly in a position to revoke her consent had she wished to do so.” Id.

at 445. The court rejected the defendant’s claim that police, having responded to her 911 call,

should have left her deceased husband on the floor and obtained a search warrant. Id.




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          Tollefson argues because Barbara’s body was found outside his trailer, rather than inside

as in Johnson, officers did not have consent to enter his trailer.          Tollefson’s argument is

persuasive.     After the initial protective sweep of the trailer, it was unnecessary for law

enforcement officials to re-enter the trailer to investigate the shooting or remove Barbara’s body.

In comparison, the defendant in Johnson was still at the scene as officers continued to investigate

and was, therefore, “in a position to revoke her consent had she wished to do so.” Johnson, 226

S.W.3d at 445. Officers took Tollefson to the Wilson County jail before Chief Deputy Deagen

searched the trailer, so Tollefson was not in a position to deny consent.

          We hold the emergency exception to the warrant requirement does not apply because

after the initial protective sweep of Tollefson’s trailer, wherein the officers did not seize the

evidence in question, officers did not have Tollefson’s implied consent to search his trailer. At

the time of the second search, Tollefson had been removed from the scene and Barbara’s body

was outside the trailer.

                                     The Automobile Exception

          The State next contends the automobile exception applies.           Tollefson argues the

automobile exception does not apply because his trailer was not readily mobile; it had to be

hitched to a truck before it could be moved, and it was not hitched to a truck at the time of the

search.

          A warrantless search of an automobile is justified any time an officer possesses probable

cause to believe the automobile contains evidence of a crime. Powell v. State, 898 S.W.2d 821,

827 (Tex. Crim. App. 1994). Under the automobile exception, there is a reduced expectation of

privacy in an automobile because (1) it is readily mobile, and (2) it is subject to government

regulation. Carroll v. United States, 267 U.S. 132, 153 (1925). Because of this ready mobility,



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“it is not practicable to secure a warrant because the vehicle can be quickly moved out of the

locality or jurisdiction in which the warrant must be sought.” Id. at 153. In California v.

Carney, the Supreme Court held that a motor home was subject to the automobile exception

because it was readily mobile, and because it was present in a setting that indicated it was being

used for transportation. 471 U.S. 386, 394 (1985).

        Tollefson argues his trailer is different than the vehicle in Carney. Tollefson argues his

trailer was not self-propelled and therefore, not readily mobile, and that his trailer was situated

such that an observer would conclude it was being used as a residence, not a vehicle. The record

establishes Tollefson’s trailer was not hitched to another vehicle and that the utilities were still

attached to it at the time of the search.

        The State argues the trailer could be rendered mobile by simply hooking the trailer up to

a truck and moving the two-by-fours. The State also points to testimony that places Tollefson’s

friend, Robert Wall, at the scene. The State argues police had an interest in searching the trailer

immediately because Robert Wall could have taken it off the property.

        Even though Tollefson’s trailer was subject to government regulation, Act of June 17,

2011, 82nd Leg., R.S., ch. 1296, § 126, 2011 Tex. Sess. Law Serv. (West) (to be codified at TEX.

TRANSP. CODE ANN. § 502.254), we hold his trailer was not readily mobile. Tollefson’s trailer

did not have an ignition switch, the only way it could become mobile would be to hitch it to

another vehicle, and it was still attached to the utilities at the time of the search.

        We further hold Carney does not apply because Tollefson’s trailer was not readily mobile

and was not present in a setting that indicated it was being used for transportation. See Carney,

471 U.S. at 394. Because Tollefson’s trailer was not hitched to another vehicle and because the




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utilities were still attached, the trailer was not in a setting that would indicate it was being used

for transportation. Therefore, the automobile exception does not apply.

                                             Plain View

       The State argues because the evidence law enforcement officers seized was in plain view,

the officers were justified in entering and searching the trailer.

       Under the plain view doctrine, an item may be seized if three requirements are met.

Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). “First, law enforcement officials

must lawfully be where the object can be plainly viewed. Second, the incriminating character of

the object in plain view must be immediately apparent to the officials. And third, the officials

must have the right to access the object.” Id. The Texas Court of Criminal Appeals further

explained that without exigent circumstances, plain view cannot justify a search and seizure

unless law enforcement officials have a lawful right to access the object. Id. at 335.

       In Keehn, the officers looked in the windows of a van parked in a couple’s driveway. Id.

at 332. A member of the drug task force noticed a propane tank with a discolored and modified

valve. Id. He testified that in his training and experience, he believed the tank contained

ammonia for the purposes of producing methamphetamine, so he entered the van and seized the

tank. Id. Although the court upheld the search based on the automobile exception, the court

stated: “The court of appeals therefore was mistaken in upholding the seizure of the tank under

the plain view exception because Officer Spragins had no lawful right, absent some exception to

the warrant requirement, to enter the van.” Id. at 335. Because the automobile exception

applied, Officer Spragins had a lawful right to enter the van. Keehn, 279 S.W.3d at 335-36.

       Unlike the officer in Keehn, officers here did not have a lawful right to enter Tollefson’s

trailer because they did not have a warrant and none of the exceptions to the warrant requirement



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were applicable. Because officers did not have a lawful right to enter the trailer, the seizure of

the evidence cannot be justified under the plain view exception.

       The three exceptions to the warrant requirement as argued by the State: responding to an

emergency call; the automobile exception; and plain view do not apply. We therefore hold the

warrantless search was invalid.

                                         Harmless Error

       The State argues that even if we find the search invalid, the admission of the illegally

obtained evidence was harmless error. Tollefson, however, contends the evidence, especially the

handwritten note documenting his grievances against the Coulls, materially impacted the verdict,

specifically his claim of self-defense. Because the search was invalid, we must now conduct a

harm analysis.

       Erroneous admission of evidence seized in violation of the Fourth Amendment is

considered constitutional error. Hernandez v. State, 60 S.W.3d 106, 106 (Tex. Crim. App.

2001). When analyzing constitutional error, rule 44.2 of Texas Rules of Appellate Procedure

applies. See id; TEX. R. APP. P. 44.2(a). Under this standard, we must reverse the trial court’s

judgment unless we determine beyond a reasonable doubt that the error did not contribute to

Tollefson’s conviction or punishment. TEX. R. APP. P. 44.2(a).

       A constitutional error does not contribute to the conviction or punishment if the jury’s

verdict would have been the same even if the erroneous evidence had not been admitted. Clay v.

State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). In making this determination, we may

consider: (1) the importance of the erroneous evidence to the State’s case; (2) whether the

evidence was cumulative of other evidence; (3) the presence or absence of other evidence

corroborating or contradicting the erroneous evidence on material points; and (4) the overall



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strength of the State’s case. See id. We may also consider whether, or to what extent, the State

emphasized the error. See Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). We

begin by reviewing the record to determine how the State used the erroneous evidence against

Tollefson.

       When the erroneous evidence was admitted, the State claimed the evidence went to

motive, intent, accident, or mistake, and was an admission by Tollefson of his then existing

mental or emotional state. This was the State’s only reference to the seized evidence. Tollefson

was not asked about the evidence on cross-examination nor was the evidence referenced by the

State in its closing arguments. Clearly, the erroneously seized evidence did not play a role in the

State’s case.

       Moreover, the seized note, which is the crux of Tollefson’s complaint, was fairly

cumulative of other evidence and corroborated by David Coull, Barbara’s husband, and

Tollefson himself. The note documented five different complaints about the Coulls. These

complaints were that: (1) he called the Sheriff’s Office concerning Casey and Cody Coull; (2) he

saw Casey and Cody on four-wheelers pointing rifles at him; (3) Casey tried to hit his dog with a

four-wheeler; (4) Barbara was riding a four-wheeler at his trailer at a high speed; and (5) the tires

on his trailer were different, the steel belts were showing, and his spare was flat. Essentially, the

note evidenced problems between Tollefson and the Coulls.

       David testified about the problems between Barbara and Tollefson. David stated that at

least once Barbara yelled at Tollefson because his dog was chasing the Coulls’ calves. David

testified that on one occasion, Tollefson “started in on” Barbara and then turned to David and

told David he was “tired of [David’s] crap.” Along with David’s testimony, Tollefson also

testified that his and Barbara’s relationship became problematic because she repeatedly asked



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him for a loan even though the Coulls were in bankruptcy. Thus, both David’s and Tollefson’s

testimony, like the note, evidenced a troubled relationship between Tollefson and the Coulls,

especially Barbara.

       Because the State did not use the improperly seized evidence during cross-examination of

Tollefson or during closing arguments to rebut his assertion of self-defense, the evidence was not

of much importance to the State’s case. And, the evidence from the note regarding the trouble

between Tollefson and the Coulls was fairly cumulative of David’s and Tollefson’s testimony.

       As for the overall strength of the State’s case, we hold it was very strong without the

illegally seized items. Forensic evidence established Tollefson was only six to nine inches from

Barbara when he shot her, contrary to Tollefson’s assertion that he was five to six feet away.

There was also evidence Barbara was shot three times, even though Tollefson claimed he only

shot her once. Tollefson even reiterates, in his brief to this court, that the “State’s mantra” at

trial was that “the physical evidence does not lie,” essentially agreeing the strength of the State’s

case was based on forensic evidence, not the items seized from the trailer. Therefore, we hold

Tollefson was not harmed by the erroneous admission of the illegally seized evidence. See

Hamilton v. State, 300 S.W.3d 14, 22 (Tex. App.—San Antonio 2009, pet. ref’d) (holding that

even though admission of evidence was constitutional error, error was harmless because

importance of evidence in State’s case was “moderate,” evidence was cumulative and

corroborated by other evidence, and State’s case was otherwise strong without erroneous

evidence).

                               ISSUE 2: CONFRONTATION CLAUSE

       In his second issue, Tollefson contends the trial court erred in admitting expert opinion

testimony from a trace-evidence analyst regarding the distance between Tollefson’s weapon and



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Barbara when the weapon was fired. Tollefson argues that because the testimony was based on

test-firing conducted by a ballistics analyst who was not present at trial, Tollefson’s Sixth

Amendment right to confront witnesses against him was violated.

       The Sixth Amendment’s Confrontation Clause provides that all criminal defendants have

the right to confront any witnesses against him. U.S. CONST. amend. VI. In Crawford v.

Washington, the United States Supreme Court held that testimonial hearsay statements of

witnesses absent from trial are admissible over a Confrontation Clause objection only when the

declarant has shown to be unavailable and where the defendant has had a prior opportunity to

cross-examine the declarant. 541 U.S. 36, 57-60 (2004). In Melendez-Diaz v. Massachusetts,

the Court held a forensic analyst’s report created for criminal prosecution is testimonial in

nature, and therefore subject to the Confrontation Clause. 129 S.Ct. 2527, 2540 (2009).

       More recently, the Court addressed the issue of “surrogate testimony” with respect to

forensic reports in Bullcoming v. New Mexico. 131 S.Ct. 2705 (2011). In Bullcoming, a DUI

case, the forensic analyst assigned to test Bullcoming’s blood sample created and signed the

“Report of Blood Alcohol Analysis.” Id. at 2710. But at trial, the State called a different

analyst, who was familiar with the laboratory’s testing procedure, but neither participated in, nor

observed, the testing of Bullcoming’s blood sample. Id. at 2709. The Court held the admission

of the forensic analyst’s report concerning Bullcoming’s blood alcohol concentration violated his

right to confrontation because a surrogate analyst, rather than the analyst who prepared the

report, testified from the report. Id. at 2715-16. Bullcoming is distinguishable.

       Here, Crystina Vachon testified she conducted a test to determine how far the gun was

from Barbara’s clothing when it was fired. After testing, Vachon testified she determined

Tollefson’s weapon was six to nine inches from Barbara when it was fired. The ballistics expert,



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David Pendelton, who test fired the weapon did not testify at trial. Vachon testified that although

she did not fire the weapon, she was present when Pendelton did. Not only was Vachon present

when Pendelton test fired the weapon, Vachon was the one who analyzed the findings and

prepared the report on those findings. Pendelton merely fired the weapon at Vachon’s request.

       We hold Tollefson’s Sixth Amendment rights were not violated. Although Pendelton test

fired the weapon, Vachon was the analyst who created the report, she was present when

Pendelton fired the weapon, and she testified at trial. In Bullcoming, the analyst who testified at

trial did not prepare the report; a different analyst did. The Court explained that “the analysts

who write the reports that the prosecution introduces must be made available for confrontation

. . . .” Bullcoming, 129 S.Ct. at 2715. Moreover, Pendelton did not make a testimonial statement

because he did not create the report. Vachon made the testimonial statement and because she

testified and was available for cross-examination, we hold the Confrontation Clause was not

violated. Therefore, Tollefson’s second issue is overruled.

                                          CONCLUSION

       We overrule Tollefson’s two issues. Accordingly, the judgment of the trial court is

affirmed.


                                                  Marialyn Barnard, Justice

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