                                                                                       ACCEPTED
                                                                                   12-14-00210-CR
                                                                      TWELFTH COURT OF APPEALS
                                                                                    TYLER, TEXAS
                                                                             7/14/2015 10:54:08 AM
                                                                                     CATHY LUSK
                                                                                            CLERK

                           12-14-00210-CR

                                                                 RECEIVED IN
                                                           12th COURT OF APPEALS
       IN THE TWELFTH COURT OF APPEALS OF                 TEXAS TYLER, TEXAS
                                                           7/14/2015 10:54:08 AM
                           TYLER, TEXAS                         CATHY S. LUSK
                                                                    Clerk


                   BOBBIE DEWAYNE GRUBBS
                                                                     7/14/2015
                           Appellant

                                   v.

                       THE STATE OF TEXAS
                             Appellee


              On Appeal from Cause No. 14-CR-19,074

      in the 273RD Judicial District Court of Shelby County, Texas


                         APPELLEE’S BRIEF


                    123rd JUDICIAL DISTRICT ATTORNEY’S OFFICE

                    Kenneth Florence, District Attorney
                    Lead Counsel
                    State Bar No. 00790698
                    200 San Augustine Street - Suite 12
                    Center, Texas 75935
                    (936) 598-2489
                    (936) 598-4106 Fax



Appellee requests argument if the Appellant is granted oral argument
                                           TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Reversible Error Standard Generally Applicable to the Case . . . . . . . . . . . . . . . . . 3

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

         Issue A: Denial of Motion for Mistrial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         Issue B: Charge Error: Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

         Issue C: Denial of Motion to Suppress Confession (interview room) . . . . .10

         Issue D: Denial of Motion to Suppress Confession (in-car video) . . . . . . . 13

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                               ii
                                  TABLE OF AUTHORITIES

CASES

Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) . . . . . . . . . . . . . . . . . 3, 8
Arizona v. Fulminante, 499 U.S. 279 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Barrera v. State, 982 S.W.2d 415 (Tex.Crim.App. 1998) . . . . . . . . . . . . . . . . . . . .9
Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . 7
Coble v. State, 330 S.W.3d 253 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . . . . .7
Delao v. State, 235 S.W.3d 235 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . .11
Gray v. State, 159 S.W.3d 95 (Tex.Crim.App. 2005) . . . . . . . . . . . . . . . . . . . . . . . 4
Guevara v. State, 152 S.W.3d 45 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . . 3
Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989) . . . . . . . . . . . . . . . . . . . . . 4
Hart v. State, 264 S.W.3d 364 (Tex. App.—Eastland 2008) . . . . . . . . . . . . . . . . . .6
Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988) . . . . . . . . . . . . . . . . . . .6
Igo v. State, 210 S.W.3d 645 (Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . .3
Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . .5,6
Mays v. State, 318 S.W.3d 368, 382 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . 9
McCraw v. Maris, 828 S.W.2d 756 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14, 15
Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . . . . . .4
Posey v. State, 966 S.W.2d 57 (Tex.Crim.App. 1998) . . . . . . . . . . . . . . . . . . . . . . .8
Torres v. State, 585 S.W.2d 746 (Tex. Crim. App. [Panel Op.] 1979) . . . . . . . . . . 9
Vega v. State, 394 S.W.3d 514 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . . . 8
Villareal v. State, 453 S.W.3d ____ (Tex.Crim.App. 2015) . . . . . . . . . . . . . . . . . . 8

STATUTES

       VERNON’S TEX. CODE CRIM. PROC., ART. 1.14(a) . . . . . . . . . . . . . . . . . . . . .5
       VERNON’S TEX. CODE CRIM. PROC., ART. 36.19. . . . . . . . . . . . . . . . . . . . . . .3
       VERNON’S TEX. CODE CRIM. PROC., ART. 38.21. . . . . . . . . . . . . . . . . . . . . . .3
       VERNON’S TEX. CODE CRIM. PROC., ART. 38.22. . . . . . . . . . . . . . . . . . . . . . .3

RULES OF COURT

       TEX. R. APP. PRO. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
       TEX. R. APP. PRO. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

                                                       iii
         TEX. R. APP. PRO. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
         TEX. R. APP. PRO. 44.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 3, 4, 6

TREATISES

“Arguing For and Against Jury Charge Errors”, JAY BRANDON, Chief,
Conviction Integrity Unit, Bexar County District Attorney’s Office, 2015
ROBERT O. DAWSON CONFERENCE ON CRIMINAL APPEALS, May 27-29,
2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8-9




                                                              iv
      The State of Texas hereby presents this its Appellee’s Brief on appeal.

                      Statement Regarding Oral Argument

      The State asserts that no new novel issues that would contribute to the

jurisprudence of the State are presented in the instant appeal; the appeal does not

involve important issues of constitutional significance, nor is there a spilt of

authority amongst the courts of appeal concerning any issue presented.

Accordingly, the State does not believe that oral argument would benefit the court,

and therefore, urges the court to resolve this appeal solely on the pleadings and on

the record. TEX. R. APP. PRO. 39.1 (hereafter “TRAP”). However, if the Court

grants Appellant oral argument, Appellee requests oral argument.

                            Summary of the Argument

      In the instant case, Appellant has raised four (4) issues involving alleged

statutory or evidentiary rule violations, none of which have affected substantial

rights of the defendant such as to constitute reversible error under TRAP 44.2(b).

      Appellant’s first issue deals with denial of a motion for mistrial. As

discussed more completely below, the argument is within the zone of reasonable

disagreement such that it cannot be held that the trial court abused it’s discretion.

      Appellant’s second issue asserts that the trial court failed to sua sponte

instruct the jury concerning a non-pattern jury charge concerning involuntary

                                           1
intoxication. Even under the cases cited by Appellant, he would not be entitled to

such an instruction as he has failed to meet the first prong of a now-questioned

older case. Further, the defendant did not request any such jury instruction and the

issue is waived/procedurally barred.

      Appellant’s third and forth issues argue that Appellant’s video statements in

a police interview room, and secondly, in the back of a DPS Trooper car, where

not voluntary and should have been suppressed. However, the argument does not

describe any nexus between such factors as how the presence of a law enforcement

helicopter, the end of a long low-speed pursuit, length of time in an interview

room, and the size of the Appellant,...among other asserted facts, caused

Appellant’s confessions to be involuntary. In fact, throughout the confessions,

Appellant repeatedly asserts he was voluntarily telling all. The trial court did not

abuse it’s discretion in holding the confessions admissible.

                                 Standard of Review

      Appellee agrees with Appellant’s statement concerning the standard of

review for the Issues A, C and D herein, to-wit: Abuse of Discretion. (Issue A at

P. 14; Issue C at P. 22; Issue D at P. 24, n. 4.)(citations to Appellant’s Brief).

      Appellant does not state the standard of review for Issue B which alleges

charge error for the trial court failing to sua sponte charge a defensive issue.

                                           2
Generally, Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(op. on

rehearing), which interprets Art. 36.19 of the Texas Code of Criminal Procedure,

is the only standard for reviewing jury charge error, no matter how the claim is

raised. Igo v. State, 210 S.W.3d 645 (Tex.Crim.App. 2006)(charge error raised in

motion for new trial); Guevara v. State, 152 S.W.3d 45 (Tex.Crim.App.

2004)(Rule 44.2(b) does not apply.) However, this case presents a limited

exception wherein Almanza does not apply as described on P. 7 of this brief.

Accordingly, there is no standard as there is nothing for the Court to review. Id.

            Reversible Error Standard Generally Applicable to the Case

      In this case, all of Appellant’s issues expressly rely on state statutes or

evidentiary rules, and not on any state or federal constitutional provisions.

Therefore, the standard set forth in Texas Rule of Appellate Procedure 44.2(b)

applies: any error that does not affect substantial rights must be disregarded.

The latter two issues of Appellant, Issue C and Issue D, also expressly rely1 on

Tex. Code Crim. Proc., art. 38.21 and 38.22, and not expressly on any state or

federal constitutional provision. However, in the unlikely event the Court deems a

constitutional provision was impliedly invoked, the standard of Texas Rule of

Appellate Procedure 44.2(a) may apply. In that case, the harmless error standard

      1
          See Appellant’s Brief at P. 21.

                                            3
for Constitutional error is stated, “the court must reverse a judgment of conviction

... unless the court determines beyond a reasonable doubt that the error did not

contribute to the conviction....” TRAP 44.2(a).

      It should be noted that the Court of Criminal Appeals has held that when an

Appellant claims only a statutory violation, the error must be treated as

nonconstitutional for purposes of a harm analysis, and therefore, the error cannot

be deemed structural. Gray v. State, 159 S.W.3d 95 (Tex.Crim.App. 2005).

In addition, in this particular case, it is especially important to note that an

appellate court may consider overwhelming evidence of an Appellant’s guilt in it’s

harm analysis under TRAP 44.2(b). Motilla v. State, 78 S.W.3d 352, 360

(Tex.Crim.App. 2002); Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989).

                                      Argument

Issue A: Denial of Motion for Mistrial

      In his first issue, Appellant states the trial court erred when it refused to

grant a mistrial. Appellee agrees with Appellant’s statement concerning the

standard of review, to-wit: abuse of discretion. (Appellant’s Brief at P. 14, 16).

      Herein, a lengthy video confession in an interview room was played to the

jury. (4 RR 66 (represented to be 2 hours and 40 minutes long at pre-trial); 5 RR

117 (jury heard “2 and a half hours”)). Unfortunately, as Appellant suggests, an

                                            4
unredacted few seconds of the video was inadvertently played to the jury.

(Appellant’s Brief at 13; 5 RR 105). However, upon Appellee’s discovery of the

error, Appellee ejected the video disk and inserted the proper disk to continue to

play for the jury, and informed the trial court. 5 RR 105-122 (whole colloquy

regarding issue).

      The defense did not object until long after Appellee stopped the video,

brought the matter to the attention of the trial court (5 RR 105), the defense

initially stating it had no objection and was “fine” ( 5 RR 111-113) and had even

been unaware whether the jury heard the statement or not (5 RR 110), the video

had resumed playing (5 RR 114), there was an intervening unrelated objection (5

RR 115), then the video continued playing again (Id.), later there was a 20 minute

break (5 RR 115-116), and only then the defense lodged an objection and moved

for a mistrial...after the entire video had already been played and a lengthy break

had been held (5 RR 117)(“The jury cannot un-hear the two and a half hours that

they’ve heard.”- defense counsel (Id.)).

      With all of the breaks and passage of time, it cannot be credibly argued

there was a contemporaneous objection to preserve even a claim of error, however

unfounded it might have been. Any right of a criminal defendant can be waived.

VERNON’S TEX. CODE CRIM. PROC., ART. 1.14(a); Matchett v. State, 941 S.W.2d

                                           5
922, 930-31 (Tex. Crim. App. 1996); Holland v. State, 761 S.W.2d 307, 313 (Tex.

Crim. App. 1988). To preserve error, there must be a timely, specific request,

objection, or motion. TEX. R. APP. PRO. 33.1; Hart v. State, 264 S.W.3d 364, 368

(Tex. App.—Eastland 2008, pet. ref'd).

       In any event, Appellee never thereafter emphasized or even mentioned the

complained of admission by Appellant2. The brief mention was in the middle of a

long confession. Additionally, there was otherwise overwhelming evidence of

Appellant’s guilt. 5 RR, 6 RR, passim.

       The standard for reversible error for this claim is whether substantial rights

of the Appellant have been affected. TRAP 44.2(b). Here, considering the totality

of the appellate record, which overwhelmingly substantiated Appellant’s guilt of

Capital Murder, the complained of error, did not affect substantial rights of the

Appellant.

       Even under the civil law case McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.

1992), cited by Appellant in his brief at P. 14, the Appellant has failed to meet that

standard. Appellant makes no argument as to how the alleged trial court error was

“reasonably calculated to cause and probably did cause rendition of an improper


       2
       We are dealing with Appellant’s own statement about being “to the pen before;”
importantly, we are not dealing with a law enforcement officer or other witness testifying about
Appellant’s prior trip to the penitentiary.

                                                6
judgment.” Id. Therefore, this issue may also be considered to be inadequately

briefed, and thus, present nothing for review. See TEX. R. APP. PROC. 38.1(e), (f),

(h), (I); Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008).

       Finally, it was within the “zone of reasonable disagreement3” for the judge

to not grant a mistrial, and in fact, the judge was further correct in not even

instructing the jury to disregard the exceedingly brief admission, because to do so

would have drawn more attention to it4. After all, the complained of couple of

seconds excerpt was subsumed within a lengthy hours’ long video confession. (4

RR 66 (represented to be 2 hours and 40 minutes long at pre-trial); 5 RR 117 (jury

heard “2 and a half hours” in total). Therefore the trial court ruling “must be

upheld” as per the Coble case cited by Appellant in his brief at P. 16. (See

footnote 3 for full citation).

       The totality of the first issue should be overruled.

Issue B: Charge Error: Defenses

       In his second issue, Appellant claims that the trial court failed to sua sponte




       3
        As cited by Appellant in his brief at P. 16: Coble v. State, 330 S.W.3d 253, 292
(Tex.Crim.App. 2010).
       4
        See 5 RR 119 (“I'm certainly not suggesting the Court give them an instruction not to
conclude that, because that would obviously give them the idea that that's what it could mean” -
State’s Counsel).

                                                7
charge the jury regarding Appellant’s claim of involuntary intoxication5.

Appellant himself never requested such a defensive instruction at trial, so in any

event, this claim is waived/procedurally defaulted. Though not dispositive, such

an instruction is not found in the Texas Pattern jury charges.

       If the defense does not request a defensive issue, the trial judge has no duty

to include a charge on that issue, because without a defense request, a defensive

issue is not “the law applicable to the case.” Vega v. State, 394 S.W.3d 514, 518-

19 (Tex.Crim.App. 2013). If the defense fails to request an instruction on a

defensive issue at trial, there is no error, and Almanza6 does not apply, even if the

defense can demonstrate “egregious harm” on appeal. Posey v. State, 966 S.W.2d

57, 62 (Tex.Crim.App. 1998). In any event, the weakness of the evidence raising

a defensive issue can also contribute to a finding of lack of “egregious harm”

under Almanza, and that presupposes the defense actually requested the

instruction, which did not happen in this case. Villareal v. State, 453 S.W.3d ____

(Tex.Crim.App. 2015)(As cited in “Arguing For and Against Jury Charge Errors”,


       5
        At trial in opening statement, Appellant’s counsel claimed Appellant voluntarily took
“Pump-It Powder” but that he was involuntarily intoxicated because he did not know it would
cause him to be intoxicated. 5 RR 22. It seems illogical that Appellant would claim taking
multiple doses of a clearly marked stimulant would not affect him. No reasonable juror would
have believed this evidence anyway.
       6
           686 S.W.2d 157, 171

                                               8
JAY BRANDON, Chief, Conviction Integrity Unit, Bexar County District

Attorney’s Office, 2015 ROBERT O. DAWSON CONFERENCE ON CRIMINAL

APPEALS, P. 13, May 27-29, 2015).

      However, if a court does sua sponte charge the jury on a defensive issue

such as self-defense or entrapment, the court has an obligation to get the charge

right. Barrera v. State, 982 S.W.2d 415, 416-17 (Tex.Crim.App. 1998). To

preserve error, if any, trial counsel must pinpoint specific evidence in trial that

raised an issue, and the legal basis for applying it. Mays v. State, 318 S.W.3d 368,

382-83 (Tex.Crim.App. 2010). Such was not done in this case.

      Even Appellant’s own case cited for this proposition shoots down his claim.

Under Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.] 1979)(a

36 year old now-questioned case by the Appellant’s own admission), Appellant

cannot meet the first prong, namely, that he exercised “no independent judgment

or volition in taking the intoxicant.” Appellant’s Brief at 19, citing Torres at 749;

see also Appellant’s note 3 on P. 19 concerning questioned nature of this

authority. Appellant knew he was taking the substance “Pump-it Powder”, at least

according to his lawyer’s opening statement (5 RR 22) and the testimony of his

expert witness Dr. Edward Gripon (9 RR 16), which was the only testimony

concerning “Pump-It Powder.” Dr. Gripon had never heard of the substance

                                           9
before (9 RR 17), and the doctor’s only source of this information came from the

Appellant himself (9 RR 25). The Appellant elected not to testify. (9 RR 68).

      To be specific, Appellant’s attorney stated in opening argument:

      “The evidence is going to show that on or around April the 26th of
      2012, after work, Mr. Grubbs, feeling fatigued, stopped by a
      convenience store in Montgomery County, Texas. The evidence will
      show that, in the past, that he has used such stimulants as 5-Hour
      Energy and other things that are sold over the counter. In this
      particular instance the evidence is going to show that the clerk said,
      Getting good reports on this Pump-It Powder; so he bought ten vials
      of Pump-It Powder.” (5 RR 22)

Clearly, by his own admission, Appellant knew the substance was a stimulant, and

he had used stimulants in the past, so he bought ten (10) packages of it...no doubt

to be sure he got the desired effect.

      Issue B should be overruled because the issue was waived, Almanza does

not apply even if the Appellant could demonstrate “egregious harm”, and a sua

sponte instruction on involuntary intoxication was not supported under the facts

nor under the law.

       Appellant’s second issue should be overruled.

Issue C: Denial of Motion to Suppress Confession (interview room)

      In his third issue, Appellant claims his interview room confession to

Detective Keith Echols of the Montgomery Sheriff’s Office should have been



                                         10
suppressed because it was not voluntary. Appellant does not claim that he did not

receive the proper admonishments. (E.g., Miranda rights)7. His claim seems to

simply be that, under the totality of the circumstances, his interview room

confession could not be voluntary. However, this Court should review the

relevant portions of the pre-trial suppression hearing as well as the trial statements

actually introduced at trial before the trier of fact. (See 4 RR 60-80 (pre-trial); 5

RR 124-167 (trial)). Throughout his confession Appellant clearly and

unequivocally stated he was talking voluntarily, and almost seemed relieved to

“get it off his chest” and tell his story. As Appellant notes in his brief at P. 22,

“[a]s a general rule, a determination whether a statement was voluntarily rendered

is analyzed by examining the totality of the circumstances.” Citing, Arizona v.

Fulminante, 499 U.S. 279, 285-86 (1991); Delao v. State, 235 S.W.3d 235, 239

(Tex.Crim.App. 2007).

      To be specific, Detective Echols pre-trial suppression hearing testimony

included: Appellant appeared to be lucid, not under the influence, and in control of

his mental faculties (4 RR 60); Appellant did not refuse to talk, nor did he ask for

a lawyer (4 RR 60, 62); Appellant had “smoke” breaks (4 RR 61); the video

recording is one continuous uninterrupted recording (4 RR 62); the confession


      7
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                               11
took 2 hours and 40 minutes, but was all in one day (4 RR 65-66); Appellant had

“What-a-Burger” in addition to “smoke” breaks (4 RR 67); Appellant did not ask

for anything else (4 RR 67); he had restroom breaks (4 RR 67); he was not

intimidated (Id.); Appellant was cooperative and not angry (4 RR 68); Appellant

was given Miranda warnings after each and every break, which was more than 3

or 4 occasions (4 RR 68); Appellant understood the questions and the

consequences of answering those questions (4 RR 69); after each break, Appellant

was asked whether or not he was “still willing to talk to us?”, to which he replied

“yes” (4 RR 70); Appellant’s statements were voluntary and not the product of

coercion (Id.); there were no verbal threats or motions to strike the Appellant to

get him to talk, and he was not forced into a chair or restrained in any way (4 RR

76); Appellant was “talkative” throughout (4 RR 77); Appellant never mentioned

“bath salts” or being under the influence of anything (4 RR 78); Appellant was

calm and did not appear to be under the influence of anything (4 RR 79).

      Further, Detective Echols trial testimony included: Appellant had breaks

during the confession (5 RR 124); the total interview time of the video, including

breaks, was 4 hours and 15 minutes (5 RR 125); the Appellant did not appear to be

under the influence of medications or drugs during the interview (5 RR 141); there

was no indication that drugs caused Appellant to suffer mental illness (5 RR 142);

                                         12
Appellant did not appear high or insane (5 RR 157-158); Appellant was not

offered any deals in exchange for his confession (5 RR 167).

      Appellant’s third issue should be overruled because under the totality of the

circumstances, his interview room confession was voluntary.

Issue D: Denial of Motion to Suppress Confession (in-car video)

      In his fourth issue, Appellant claims his in-car statement to DPS Trooper

Barnes should have been suppressed because it was also not voluntary. As in

Issue C supra, Appellant does not claim that he did not receive the proper

admonishments. His claim is again that, under the totality of the circumstances,

his in-car confession could not be voluntary. Again, due to the totality of the

circumstances being the framework for analysis, this Court should review the

relevant portions of the pre-trial suppression hearing on this confession as well as

the trial statements actually introduced at trial before the trier of fact. ((4 RR 14-

49)(pre-trial suppression hearing); (5 RR 60-79)(trial testimony)). In this other

confession, Appellant again clearly and unequivocally states he is talking

voluntarily, and again seemed relieved to “get it off his chest” and tell his story.

Both confessions were clearly voluntary.

      To be specific, Trooper Barnes pre-trial suppression hearing testimony

included: Appellant did not fight with the arresting officers, and he was arrested

                                           13
without incident (4 RR 14); Barnes made no attempt to get information from

Appellant (4 RR 15); Appellant’s statements were spontaneous...”He talked a lot.”

(4 RR 16); Appellant did not appear intoxicated, he did not need medical attention,

and he was not confused (4 RR 17); Appellant appeared lucid, in control of his

faculties, he did not report seeing or hearing hallucinations, there were no threats

or intimidation, he was not coerced into speaking (4 RR 18); Barnes read

Appellant his rights off of a little yellow card, and Appellant understood his rights

(4 RR 19-20); Barnes did not intend to interrogate Appellant, but read him his

rights because he did not want to “be that guy” (who messed up the case) (4 RR

20-21); the entire conversation was recorded (4 RR 21); the statements appeared

to be voluntary to Barnes (4 RR 22); there were “helicopters in the sky” when

Appellant was pulled over (4 RR 25); the first thing Appellant told Barnes after he

pulled him over was “I waive everything” (4 RR 44); Appellant appeared to

understand the Miranda warning (4 RR 44); amazingly, on the trip to the

Montgomery County Jail the Appellant pointed out to Trooper Barnes that the

Watchguard camera system was indicating that Barnes needed to punch a button

for it to keep recording Appellant’s statements (4 RR 46-47).

      Further, Trooper Barnes trial testimony included: when Appellant was read

his Miranda rights, he replied “I know my rights brother.” (5 RR 60-62); Barnes

                                         14
had no intention of questioning Appellant, but gave the Miranda warning anyway

because he did not want to be “that one” who messed the case up (5 RR 62);

Appellant’s statements were spontaneous statements and not the result of any

questioning (5 RR 64); no threats or force were used to get Appellant to confess (5

RR 65); Appellant did not appear delusional (5 RR 69); Appellant pointed out that

Barnes needed to punch a button on the camera system for it to keep recording

Appellant’s statements (5 RR 72); Barnes continued to record at Appellant’s

request (5 RR 72); Appellant and Barnes had no other conversations than what

occurred in Barnes’ vehicle (5 RR 75); Appellant did not seem erratic (Id.);

Appellant did not appear intoxicated (5 RR 76); Appellant did not complain about

any medical conditions (5 RR 78); Appellant never mentioned “bath salts” (5 RR

79).

       Based upon the totality of the circumstances, Appellant’s other confession

was also voluntary, and Appellant’s fourth issue should likewise be overruled.

                                    PRAYER

WHEREFORE for the reasons set forth above, Appellant’s judgment and

sentence should be in all things AFFIRMED.

                                Respectfully submitted,

                                123rd JUDICIAL DISTRICT ATTORNEY

                                        15
                                  /S/ Kenneth B. Florence
                                STATE’S ATTORNEY TB#00790698
                                200 San Augustine Street ~ Suite 12
                                Center, Texas 75935
                                (936) 598-2489 Fax (936) 598-4106

                      CERTIFICATE OF COMPLIANCE

      The computer generated Appellee’s Brief in this case contains 4063 words.

Appellee certifies he relied on the word count of the computer program used to

prepare the document.

                                               /S/ Kenneth Florence

                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Appellee’s Brief, as

related above, was served upon, Stephen Shires, Attorney for Appellant, 123 San

Augustine Street, Center, Texas 75935, by facsimile (936) 598-3031 and by E-file

Texas, on this the 14th day of July 2015.

                                                  /S/ Kenneth Florence




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