                                                                               ACCEPTED
                                                                           06-15-00095-CR
                                                                SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                      7/27/2015 4:29:33 PM
                                                                          DEBBIE AUTREY
                                                                                    CLERK

                   No. 06-15-00095-CR

                                                          FILED IN
                         IN THE                    6th COURT OF APPEALS
                                                     TEXARKANA, TEXAS
                                                   7/27/2015 4:29:33 PM
                  COURT OF APPEALS                     DEBBIE AUTREY
                                                           Clerk
                    FOR THE SIXTH

            JUDICIAL DISTRICT OF TEXAS

                      TEXARKANA


         JAMES ARTHUR BAXLEY, Appellant

                             v.

            THE STATE OF TEXAS, Appellee


             Appealed in Cause No. 1424312

    8th Judicial District Court of Hopkins County, Texas


                   APPELLEE’S BRIEF




                      By:/s/ Matthew H. Harris
                         Matthew H. Harris
                         Assistant District Attorney
                         State Bar No 24083142
                         P.O. Box 882
                         Sulphur Springs, Texas 75483
                         (903) 885-0641

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                       IDENTITY OF PARTIES AND COUNSEL


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

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

appellate counsel:

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

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

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




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                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                             2

TABLE OF CONTENTS                                                           3

INDEX OF AUTHORITIES                                                        4

ISSUES PRESENTED                                                            5

STANDARD OF REVIEW                                                          5

SUMMARY OF THE ARGUMENT                                                     5

I.   The trial court did not err in crediting the testimony of Mark Estes   6

II. The pretext doctrine is no longer valid law                             6

III. Appellant failed to preserve error                                     8

PRAYER FOR RELIEF                                                           8

CERTIFICATE OF SERVICE                                                      9

CERTIFICATE OF WORD COUNT                                                   9




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                                  INDEX OF AUTHORITIES
Cases
Archie v. State, 799 S.W.2d 340, 344 (Tex. App.—Houston [14th Dist.] 1990) .....7
Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991) ......................................7
Stewart v. State, 611 S.W.2d 434, 436 (Tex. Crim. App. 1981) ...............................8
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) ..........................5
U.S v. Lefkowitz, 285 U.S. 452, 467 (1932) .............................................................7


Rules
Texas Rule of Appellate Procedure 9.4(i)(3) .............................................................9
Texas Rule of Appellate Procedure 33.1 ...................................................................9
Texas Rule of Appellate Procedure 38(a)…………………………………………. 2




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                               ISSUES PRESENTED

      Appellant argues that: (1) the trial court should not have credited the

testimony of Sergeant Mark Estes, and (2) law enforcement should not be allowed

to evade the warrant requirement through “creativity”. Despite a lack of specificity,

Appellant appears to refer to search warrants because arrest warrants existed in

this case. Appellant argues that the trial court should have granted Appellant’s

motion to suppress, and that failing to do so was an abuse of discretion.

                            STANDARD OF REVIEW

      Upon reviewing the trial court’s denial of a motion to suppress, the standard

of review is abuse of discretion with regard to the trial court’s factual findings. The

standard of review relating to the trial court’s application of law to fact is de novo.

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

                       SUMMARY OF THE ARGUMENT

      Appellant was arrested pursuant to valid warrants which were relied upon by

Sergeant Mark Estes in good faith, and were even admitted to evidence in the case.

The trial court did not abuse its discretion in choosing to believe the testimony of

Mark Estes. It does not “strain the credulity of a reasonable person” to believe the

testimony of Sergeant Estes, and there is no evidence that he used Appellant’s

valid arrest warrants as a pretext to “go fishing”. The pretext doctrine, which is
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apparently relied upon by Appellant, does not exist. Finally, even if the pretext

doctrine did exist, Appellant did not preserve error.

      I.     The trial court did not err in crediting the testimony of Sergeant

             Mark Estes during hearing on Appellant’s motion to suppress.

      Appellant argues that the trial court erred in crediting the testimony of

Sergeant Estes. Evidently the crux of Appellant’s argument is that the trial court

abused its discretion by not finding that Sergeant Estes lied when he said that he

had seen Appellant’s name on a warrant list, drove by his house, and arrested

Appellant after confirming the warrants through dispatch. To believe the sworn

testimony of a peace officer with 14 years’ experience, according to Appellant,

constitutes an abuse of discretion. Even if that were true, Appellant cites no

authority for this proposition or even the legal basis for his argument – he simply

states that the motion to suppress should have been granted because Sergeant Estes

was not being honest about his reasons for being at Appellant’s home.

      II.    The pretext doctrine is no longer valid law

      Appellant proposes that Sergeant Estes “went fishing” because he doesn’t

normally serve warrants. Appellant insinuates that Sergeant Estes somehow

behaved illegally or improperly and that the motion to suppress should have been

granted because he used the municipal warrants as pretext to arrest and search
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Appellant for evidence of another crime. The fallacy of this argument, however, is

that the “pretext doctrine” is no longer valid law. It formerly existed to prohibit

officers from using an arrest for one crime as pretext to search for evidence of

another. Archie v. State, 799 S.W.2d 340, 344 (Tex. App.—Houston [14th Dist.]

1990), aff'd sub nom. Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991)

(citing U.S v. Lefkowitz, 285 U.S. 452, 467 (1932)). Under the old line of cases if

pretext formed the basis for a warrantless search, then any resulting evidence

seized may have been rendered inadmissible. Id. In practical application, courts

found it nearly impossible to determine the subjective intent of officers when

making stops and arrests, so the pretext doctrine was explicitly abandoned in

Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). As the law currently

stands, an officer’s subjective intent in making an arrest is irrelevant as long as

there exists an objectively valid, legal basis for the arrest. Id. Here, the arrest was

made pursuant to arrest warrants which were admitted as evidence at trial by the

trial counsel for Appellant (Vol. 5; p. 203; l. 2-23).

       Appellant further complains that law enforcement should not be allowed to

“evade the general requirement that warrants be used”, presumably referring to

search warrants, because the arrest was simply pretext for Sergeant Estes to search

Appellant for controlled substances. The law is quite clear that a search incident to

a lawful arrest requires no warrant if the search is restricted to the arrestee and
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those objects immediately associated with the arrestee. Stewart v. State, 611

S.W.2d 434, 436 (Tex. Crim. App. 1981). Here, Sergeant Estes arrested Appellant

pursuant to a valid arrest warrant, and then proceeded to search him incident to that

arrest. The contraband was located on Appellant’s person. There is no doubt that a

search warrant was not required.

        III.   Even if the pretext doctrine existed, Appellant failed to preserve

               error.

        Appellant’s trial counsel, Cynthia Braddy, raised a single suppression issue

on the morning of trial - that there may be an important legal distinction between

capias pro fines and arrest warrants (Vol. 5; p. 173, l. 8 – p. 174., l. 1) - but Ms.

Braddy never once mentioned that the search of Appellant and seizure of the

controlled substance should be suppressed because the warranted arrest was pretext

to search for evidence of another crime. Despite the fact that it appears as though

Appellant is attempting to raise that very issue now, it was never raised in the trial

court. The issue was not raised in the motion to suppress, and it has not been

preserved for appellate review. Tex. R. App. P. 33.1.

                              PRAYER FOR RELIEF

        The State requests that this Court AFFIRM Appellant’s conviction by the

jury.
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                                   By:/s/ Matthew H. Harris
                                     Matthew H. Harris
                                     Assistant District Attorney
                                     State Bar No 24083142
                                     P.O. Box 882
                                     Sulphur Springs, Texas 75483
                                     (903) 885-0641



                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to counsel for Appellant, Wade Forsman, on this the 27th

day of July, 2015.

                                   By:/s/ Matthew H. Harris
                                     Matthew H. Harris
                                     Assistant District Attorney




                        CERTIFICATE OF WORD COUNT

      Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,342 words.

                                   By:/s/ Matthew H. Harris
                                     Matthew H. Harris
                                     Assistant District Attorney




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