                                                                                   ACCEPTED
                                                                               06-15-00122-CR
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                        10/19/2015 12:39:13 PM
                                                                              DEBBIE AUTREY
                                                                                        CLERK

                          No. 06-15-00122-CR

                    IN THE COURT OF APPEALS                FILED IN
                                                    6th COURT OF APPEALS
                         SIXTH DISTRICT               TEXARKANA, TEXAS
                      AT TEXARKANA, TEXAS          10/19/2015 12:39:13 PM
                                                        DEBBIE AUTREY
                                                            Clerk
__________________________________________________________________


             DAVID SYLVESTER CHAMBERS, Appellant

                                  v.

                       THE STATE OF TEXAS




ON APPEAL FROM THE 272nd DISTRICT COURT OF BRAZOS COUNTY
        TRIAL COURT CAUSE NUMBER 13-02053-CRF-272

__________________________________________________________________


                      BRIEF FOR APPELLANT

__________________________________________________________________

                                           Richard E. Wetzel
                                           State Bar No. 21236300

                                           1411 West Ave., Suite 100
                                           Austin, Texas 78701

                                           (512) 469-7943 – Telephone
                                           (512) 474-5594 - Fax
                                           wetzel_law@1411west.com

                                           Attorney for Appellant
                                           David Sylvester Chambers
                        Identity of Parties and Counsel


Appellant:                                 David Sylvester Chamber

Trial Counsel for Appellant:               Shannon Flanigan
                                           Attorney at Law
                                           P.O. Box 482
                                           Bryan, TX
                                           77806

Appellate Counsel for Appellant:           Richard Wetzel
                                           Attorney at Law
                                           1411 West Ave., Ste. 100
                                           Austin, TX
                                           78701

Appellee:                                  State of Texas

Trial Counsel for Appellee:                James Rogers
                                           Jennifer Hebert
                                           Assistant District Attorneys
                                           300 E. 26th St., Ste. 310
                                           Bryan, TX
                                           77803

Appellate Counsel for Appellee:            Doug Howell
                                           Assistant District Attorney
                                           300 E. 26th St., Ste. 310
                                           Bryan, TX
                                           77803

Trial Judge:                               Hon. Travis B. Bryan, III
                                           272nd District Court
                                           Brazos County, Texas




                                      ii
                                Table of Contents
                                                                                                    Page

List of Parties and Counsel                    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

Table of Contents                              . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

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

Issues Presented                               . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

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

Summary of the Argument                        . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Point of Error One                             . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

The trial court abused its discretion by allowing the State to amend the indictment
after trial commenced (6 RR 214).

Point of Error Two                             . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

The trial court abused its discretion by denying Chambers’ motion to suppress
evidence (6 RR 183).

Point of Error Three                           . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

The judgment should be reformed to properly reflect Chambers was convicted of a
state jail felony rather than a second degree felony (CR 35).

Prayer                                         . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Certificate of Compliance                      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Certificate of Service                         . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21




                                         iii
                                Index of Authorities
                                                                                            Page
Cases

Amador v. State, 221 S.W.3d 666
(Tex. Crim. App. 2007)                            . . . . . . . . . . . . . . . . . . . . . . . .13

Best v. State, 118 S.W.3d 857
(Tex. App.-Fort Worth 2003, no pet.)              . . . . . . . . . . . . . . . . . . . . . . . .13

Brother v. State, 166 S.W.3d 255
(Tex. Crim. App. 2005)                            . . . . . . . . . . . . . . . . . . . . . . . .15

Campbell v. State, 49 S.W.3d 874
(Tex. Crim. App. 2001)                            . . . . . . . . . . . . . . . . . . . . . . . .18

Derichsweiler v. State, 348 S.W.3d 906
(Tex. Crim. App. 2011)                            . . . . . . . . . . . . . . . . . . . . . . . .15

Dixon v. State, 206 S.W.3d 613
(Tex. Crim. App. 2006)                            . . . . . . . . . . . . . . . . . . . . . . . .15

Estrada v. State, 154 S.W.3d 604
(Tex. Crim. App. 2005)                            . . . . . . . . . . . . . . . . . . . . . . . .14

Flores v. State, 139 S.W.3d 61
(Tex. App. - Texarkana 2004, pet. ref’d)          . . . . . . . . . . . . . . . . . . . . . . . . .9

Ford v. State, 334 S.W.3d 230
(Tex. Crim. App. 2011)                            . . . . . . . . . . . . . . . . . . . . . . . .18

Gollihar v. State, 46 S.W.3d 243
(Tex. Crim. App. 2001)                            . . . . . . . . . . . . . . . . . . . . . . . .10

Guzman v. State, 955 S.W.2d 85
(Tex. Crim. App. 1997)                            . . . . . . . . . . . . . . . . . . . . . . . .13

Howell v. State, 563 S.W.2d 933
(Tex. Crim. App. 1978)                            . . . . . . . . . . . . . . . . . . . . . . . .19

                                           iv
Johnson v. State, 68 S.W.3d 644
(Tex. Crim. App. 2002)                               . . . . . . . . . . . . . . . . . . . . . . . .14

Johnson v. State, 967 S.W.2d 410
(Tex. Crim. App. 1998)                               . . . . . . . . . . . . . . . . . . . . . . . .10

King v. State, 953 S.W.2d 266
(Tex.Crim.App.1997)                                  . . . . . . . . . . . . . . . . . . . . . . . . .9

Land v. State, 291 S.W.3d 23
(Tex. App. – Texarkana 2009, pet. ref’d)             . . . . . . . . . . . . . . . . . . . . . . . .19

Jackson v. State, 288 S.W.3d 60
(Tex. App. – Houston [1st Dist.] 2009, pet. ref’d)   . . . . . . . . . . . . . . . . . . . . . . . .19

Long v. State, 203 S.W.3d 352
(Tex. Crim. App. 2006)                               . . . . . . . . . . . . . . . . . . . . . . . .16

Miles v. State, 204 S.W.3d 822
(Tex. Crim. App. 2006)                               . . . . . . . . . . . . . . . . . . . . . . . .16

Montanez v. State, 195 S.W.3d 101
(Tex. Crim. App. 2006)                               . . . . . . . . . . . . . . . . . . . . . . . .14

Romero v. State, 800 S.W.2d 539
(Tex. Crim. App. 1990)                               . . . . . . . . . . . . . . . . . . . . . . . .13

Simpson v. State, 227 S.W.3d 855
(Tex. App.—Houston [14th Dist.] 2007, no pet.)       . . . . . . . . . . . . . . . . . . . . . . . .16

Splawn v. State, 160 S.W.3d 103
(Tex. App. - Texarkana 2005, pet. ref’d)             . . . . . . . . . . . . . . . . . . . . . . . .19

State v. Cullen, 195 S.W.3d 696
(Tex. Crim. App. 2006)                               . . . . . . . . . . . . . . . . . . . . . . . .13

State v. Kelly, 204 S.W.3d 808
(Tex. Crim. App. 2006)                               . . . . . . . . . . . . . . . . . . . . . . . .14


                                           v
State v. Ross, 32 S.W.3d 853
(Tex. Crim. App. 2000)                             . . . . . . . . . . . . . . . . . . . . . . . .13

State v. Webb, 12 S.W.3d 808
(Tex. Crim. App. 2000)                             . . . . . . . . . . . . . . . . . . . . . . . .18

United States v. Sprick, 233 F.3d 845
(5th Cir. 2000)                                    . . . . . . . . . . . . . . . . . . . . . . . .10

Valenti v. State, 49 S.W.3d 594
(Tex. App. - Fort Worth 2001, no pet.)             . . . . . . . . . . . . . . . . . . . . . . . . .9

Wiede v. State, 214 S.W.3d 17
(Tex. Crim. App. 2007)                             . . . . . . . . . . . . . . . . . . . . . . . .13

Wilson v. State, 442 S.W.3d 779
(Tex. App.—Fort Worth 2014, pet. ref’d)            . . . . . . . . . . . . . . . . . . . . . . . .14

Wright v. State, 28 S.W.3d 526
(Tex. Crim. App. 2000)                             . . . . . . . . . . . . . . . . . . . . . . . . .9

Statutes

Acts 2015, 84th Leg., ch. 1251 (H.B. 1396), § 10, eff. Sept. 1, 2015              . . . . . . . .17

TEX. CRIM. PROC. CODE art. 28.10(b)                . . . . . . . . . . . . . . . . . . . . . . . . .9

TEX. CRIM. PROC. CODE art. 42.01 § 14              . . . . . . . . . . . . . . . . . . . . . . . .19

TEX. PEN. CODE § 12.35(a)                          . . . . . . . . . . . . . . . . . . . . . . . .18

TEX. PEN. CODE § 12.35(c)                          . . . . . . . . . . . . . . . . . . . . .10, 18

TEX. PEN. CODE § 12.425(b)                         . . . . . . . . . . . . . . . . . . .1, 10, 17

TEX. PEN. CODE § 31.03(a)                          . . . . . . . . . . . . . . . . . . . . . .1, 17

TEX. PEN. CODE § 31.03(e)(4)(A)                    . . . . . . . . . . . . . . . . . . . . . .1, 17


                                         vi
Rules

TEX. R. APP. P. 9.4             . . . . . . . . . . . . . . . . . . . . . . . .21

TEX. R. APP. P. 43.2(b)         . . . . . . . . . . . . . . . . . . . . . . . .19

TEX. R. APP. P. 44.2(a)         . . . . . . . . . . . . . . . . . . . . . . . .16

TEX. R. APP. P. 44.2(b)         . . . . . . . . . . . . . . . . . . . . . . . . .9




                          vii
                              Statement of the Case


      This is an appeal from a criminal proceeding. David Sylvester Chambers

was indicted by a Brazos County grand jury for the state jail felony offense of theft

of property with a value over $1,500 and under $20,000 (CR 5). See TEX. PEN.

CODE §§ 31.03(a) and 31.03(e)(4)(A). Two prior felony convictions were alleged

to enhance punishment to that of a second degree felony (CR 5). See TEX. PEN.

CODE § 12.425(b). A jury was selected and sworn (6 RR 152, 184). Chambers

entered a plea of not guilty (6 RR 185). The jury found him guilty as charged in

the indictment (7 RR 88). Punishment was tried to the court (8 RR). Chambers

pled not true to the prior convictions alleged for enhancement of punishment (8 RR

7). The trial court found the prior convictions true and assessed punishment at 15

years in prison (8 RR 84). The trial court certified Chambers’ right to appeal (CR

43). Notice of appeal was timely filed (CR 51). Pursuant to an order of the

Supreme Court of Texas, the appeal was transferred to this Court from the Tenth

Court of Appeals.




                                          1
                             Issues Present on Appeal


Point of Error One


The trial court abused its discretion by allowing the State to amend the indictment

after trial commenced (6 RR 214).


Point of Error Two


The trial court abused its discretion by denying Chambers’ motion to suppress

evidence (6 RR 183).


Point of Error Three


The judgment should be reformed to properly reflect Chambers was convicted of a

state jail felony rather than a second degree felony (CR 35).


                                 Statement of Facts


      Just after midnight on March 9, 2013, Mario Thompson was visiting a friend

in Bryan (7 RR 9). Thompson saw a black pickup truck pull near a trailer parked

across the street (7 RR 13). Thompson watched the driver of the truck try to attach

the trailer to the truck for 15 minutes (7 RR 15). As cars would approach near the

trailer, the driver would hide behind the trailer or between the truck and the trailer

(7 RR 14).

                                           2
      Once the trailer was attached and the truck drove away, Thompson followed

in his own car because he thought the trailer was being stolen by the truck driver (7

RR 18, 31). While following the truck and trailer, Thompson called 911 to report

what he thought to be a stolen trailer (7 RR 21). Thompson was unable to identify

Chambers as the driver of the truck who took the trailer (7 RR 43).


      Shortly after midnight on March 9, 2013, Officer James Hauke, of the Bryan

Police Department, received a dispatch concerning a truck pulling a possible stolen

trailer (6 RR 190). Police had initially been alerted to the situation by the occupant

of an automobile who made a 911 call while following the truck (6 RR 191).

Hauke located the truck as it was being driven on a highway while pulling a trailer

(6 RR 192). He stopped the truck and determined Chambers was the driver of the

truck (6 RR 192). After stopping the truck, Hauke radioed in the license plate

number of the trailer, 013686H, and spoke with the occupants of the vehicle who

had followed the truck driven by Chambers (6 RR 198). At the time of the stop,

Chambers did not have keys to the various locks on the trailer (6 RR 198).


      Duane Monteilh previously worked for Woodbolt Distributors in Bryan (7

RR 50). While so employed, he bought a trailer for the company in November of

2012 for the sum of $4651.03 (7 RR 52). Texas license plate number 013686H

was affixed to the trailer (7 RR 53). The trailer was generally stored in an alley


                                          3
behind a building (7 RR 53). The trailer was secured with multiple locks on the

hitch and the doors (7 RR 56). Monteih does not know Chambers and did not give

him permission to use or take the trailer (7 RR 57).


      Nathan Kleiman and Woodbolt Distributors are named as the owners of the

trailer in the indictment (CR 5). Kleiman is employed by Woodbolt Distributors (7

RR 62). Kleiman did not give Chambers permission to use or take the trailer (7

RR 62).


      The State rested (7 RR 62). Chambers rested and both sides closed (7 RR

64). No objection was voiced to the trial court’s charge to the jury (7 RR 68).

Argument was presented (7 RR 71, 75, and 84). The jury found Chambers guilty

as charged in the indictment (7 RR 88). The jury was discharged (7 RR 90).



      Punishment was tried to the court (8 RR). Chambers pled not true to the

prior convictions alleged for enhancement of punishment (8 RR 7). However, he

stipulated he was the same person alleged in the prior convictions and there would

be no need for a fingerprint expert to connect his fingerprints with those on the

prior judgments (8 RR 8). Evidence of Chambers prior felony and misdemeanor

convictions was introduced without objection (8 RR 11, 9 RR SX 25-38).




                                          4
      Betty Meier is a community supervision officer with Brazos County (8 RR

14). She prepared the presentence investigation report in this case (8 RR 15).

Based on Chambers’ criminal history, she could not recommend community

supervision in this case (8 RR 15). At the time of trial, Chambers was 58 years of

age and had been in trouble with the law since 1977 (8 RR 30). In her discussions

with Chambers, he denied committing the instant offense and said the trailer had

been taken by someone he allowed to use his truck (8 RR 19). The State rested on

punishment (8 RR 36).


      Daidra Powell is Chambers’ daughter (8 RR 37). He lives with her in

Houston (8 RR 38). Chambers has a variety of illnesses including asthma,

seizures, back problems, bipolar disorder, and colon cancer (8 RR 39, 41).


      Chambers testified he suffers from numerous medical ailments including

seizures, asthma, back problems, and an irregular heartbeat (8 RR 50-54). He

assured the court he would comply with the terms and conditions of community

supervision if the court saw fit to place him on community supervision (8 RR 57).

He maintained his innocence of taking the trailer (8 RR 64). He admitted he was

the same person alleged to have been previously convicted in the enhancement

paragraphs of the indictment (8 RR 66).




                                          5
      The defense rested on punishment and both sides closed (8 RR 78).

Argument was presented (8 RR 78, 82). The trial court found the prior convictions

alleged for enhancement true and assessed punishment at 15 years in prison (8 RR

84). Chambers was sentenced in open court (8 RR 84).


                           Summary of the Argument


      The first point of error complains of an improper amendment of the

indictment on the day trial commenced over objection by Chambers’ counsel.

Chambers maintains he has a substantial right in the State and trial court following

the applicable law with regard to amending indictments on the day of trial. The

unlawful amendment concerns an enhancement of punishment allegation which

elevated the range of punishment from a third degree felony to a second degree

felony range of punishment. But for the unlawful amendment, Chambers could

have successfully urged a variance between the indictment and proof with regard

to one of the prior convictions alleged for enhancement of punishment. His ability

to mount a successful defense to the enhancement of punishment should not have

been sidetracked by the State’s unlawful amendment of the indictment. The Court

should find his substantial rights were adversely impacted by the unlawful

amendment and remand the cause for a new punishment hearing for punishment to

be assessed within the range of a felony of the third degree.


                                         6
      The second point of error urges the trial court abused its discretion by

denying Chamber’s motion to suppress. Evidence was recovered and observations

made by the arresting officer when the stop of Chambers’ truck was not supported

by reasonable suspicion. The trial court’s conclusion to the contrary is subject to

de novo review by this Court. The Court will be unable to find the error harmless

beyond a reasonable doubt.


      By his final point of error, Chambers seeks reformation of the judgment.

The indictment alleges Chambers committed the state jail felony offense of theft.

The jury found him guilty of the offense alleged in the indictment. Punishment,

enhanced by proof of two prior felony convictions, other than state jail felony

convictions, was subject to punishment for a second degree felony offense. The

judgment erroneously recites he was convicted of a state jail felony enhanced to a

second degree felony. The record contains the necessary data and information for

modification of the judgment. This Court should modify the judgment to properly

reflect the degree of felony for which Chambers was convicted was that of a state

jail felony rather than a second degree felony offense.




                                          7
                                Point of Error One


The trial court abused its discretion by allowing the State to amend the

indictment after trial commenced (6 RR 214).


      The indictment alleges two prior felony convictions, other than state jail

felonies, for purposes of enhancement of punishment (CR 5). The first such prior

conviction is alleged as an August 4, 1978, burglary of a habitation conviction

from Galveston County (CR 5).


      After the voir dire examination of the prospective jurors, the State

mentioned it intended to amend the indictment regarding the date of the first prior

conviction from August 4 to August 14, 1978 (6 RR 121). After the jury was

sworn, Chambers entered a plea, and the first witness testified, the State revisited

the issue of amending the indictment (6 RR 212). Counsel for Chambers objected

the attempted amendment was untimely (6 RR 212). The trial court overruled the

objection upon observing Chambers was 12 minutes late coming back from lunch

and the jury was sworn before the amendment could take place (6 RR 214). In

spite of the trial court’s observation, the record does not show Chambers was late

or absent for any of the proceedings (6 RR 6, 9, 155, and 183).


      Evidence of Chambers prior felony and misdemeanor convictions was

introduced without objection during the punishment proceeding (8 RR 11, 9 RR
                                          8
SX 25-38). State’s Exhibit 25 concerns the first prior conviction alleged for

enhancement and shows a conviction date of August 14, 1978 (9 RR SX 25).


      According to the Code of Criminal Procedure, a motion to amend the

indictment made on the day of trial, as here, can only be granted “if the defendant

does not object.” See TEX. CRIM. PROC. CODE art. 28.10(b). Because Chambers

objected to the State’s motion to amend the indictment on the day of trial, it was

error for the trial court to grant the amendment. See id.


      This Court must determine whether the trial court’s erroneous ruling under

article 28.10 of the Code of Criminal Procedure is harmless error under Rule

44.2(b) of the Texas Rules of Appellate Procedure. See Wright v. State, 28

S.W.3d 526, 531–32 (Tex. Crim. App. 2000); Flores v. State, 139 S.W.3d 61, 65–

66 (Tex. App. - Texarkana 2004, pet. ref’d); Valenti v. State, 49 S.W.3d 594, 598

(Tex. App. - Fort Worth 2001, no pet.). Under Rule 44.2(b), this Court is required

to disregard errors, defects, irregularities, or variances that do not affect the

accused’s substantial rights. TEX. R. APP. P. 44.2(b). An error affects a

substantial right “when the error had a substantial and injurious effect or influence

in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271

(Tex.Crim.App.1997).


      If looking at the record as a whole, it appears the error “did not influence the

                                           9
jury, or had but a slight effect,” an appellate court must consider the error harmless

and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998). To determine whether the trial court’s error affected a

substantial right, an appellate court should examine the possible outcomes had the

indictment not been erroneously amended. The critical inquiry requires

consideration of whether the indictment, as written, informed the defendant of the

charge against him sufficiently to allow him to prepare an adequate defense at

trial, and whether prosecution under the original indictment would subject the

defendant to the risk of being prosecuted later for the same crime. Gollihar v.

State, 46 S.W.3d 243, 248 (Tex. Crim. App. 2001) (quoting United States v.

Sprick, 233 F.3d 845, 853 (5th Cir.2000)).


      Chambers maintains he has a substantial right in the State and trial court

following the applicable law with regard to amending indictments on the day of

trial. The unlawful amendment concerns an enhancement of punishment

allegation which changed the range of punishment from a third degree felony to a

second degree felony. See TEX. PEN. CODE §§ 12.35(c)(2) and 12.425(b).

Finally, but for the unlawful amendment, Chambers could have successfully urged

a variance between the indictment and proof with regard to the first prior

conviction alleged for enhancement of punishment. His ability to mount a

successful defense to a variance in the first enhancement allegation should not
                                         10
have been sidetracked by the State’s unlawful amendment of the indictment.

Chambers substantial rights were adversely impacted by the error and he is

entitled to a new punishment hearing before the trial court for punishment to

assessed within the range of a third degree felony.


                                Point of Error Two


The trial court abused its discretion by denying Chambers’ motion to

suppress evidence (6 RR 183).


      Chambers filed a motion to suppress evidence from his warrantless stop on

the basis the officer did not have reasonable suspicion to conduct the stop (CR 22).

A hearing on the motion to suppress was conducted outside the presence of the

jury (6 RR 155 – 183). During the hearing, counsel for Chambers argued that

before conducting the stop, the officer did not have sufficient articulable facts

which would have supported a determination of reasonable suspicion and allowed

the stop without a warrant (6 RR 178).


      At the conclusion of the hearing, the trial court denied the motion to

suppress (6 RR 183). Chambers reurged his objection during trial to any testimony

from the officer following the stop of Chambers’ truck (6 RR 195). The objection

was overruled (6 RR 195). As directed by this Court, the trial court subsequently



                                          11
entered findings of fact and conclusions of law relative to the denied motion to

suppress (Supp. CR 4 - 10).


      During the suppression hearing, Officer James Hauke, of the Bryan Police

Department, testified he was on patrol on March 9, 2013 (6 RR 156). He received

a report of a vehicle being driven in a reckless manner and pulling a possible stolen

trailer (6 RR 156). Hauke identified a recording from his patrol unit, the computer

aided dispatch notes, and a 911 call which was placed by concerned citizens (6 RR

157). The 911 call was placed by the occupants of a vehicle following a truck with

what was believed to be a stolen trailer (6 RR 160).


      Hauke located the truck and followed it in his patrol vehicle (6 RR 161).

With the assistance of a fellow officer, the truck was stopped, Chambers was

removed from the truck, and Chambers was placed in a patrol vehicle (6 RR 162).

Chambers was the driver of the truck stopped by Hauke (6 RR 162). After the

stop, Hauke learned the identity of the trailer owner and spoke to the occupants of

the vehicle which had followed the truck (6 RR 163).


      Hauke admitted he did not hear the 911 call before conducting the stop (6

RR 166). He did not have the license plate number of the stolen trailer before

conducting the stop (6 RR 167). Only after detaining Chambers was Hauke able to

see the license plate number of the trailer and determine ownership of the trailer (6

                                         12
RR 168). Hauke’s decision to stop Chambers was based solely on the information

he had received from dispatch (6 RR 169). No reckless driving was demonstrated

by Chambers before the stop (6 RR 174). The only thing Hauke knew for sure was

that an automobile was following a truck pulling a trailer and the occupant of the

automobile claimed the trailer was stolen (6 RR 175).


      The trial court concluded the stop of Chambers’ truck was permissible as

supported by reasonable suspicion (Supp. CR 9). Chambers disagrees.


      A trial court's ruling on a motion to suppress evidence is reviewed on appeal

under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673

(Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court's decision, an appellate court does not engage in

its own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.-Fort Worth 2003, no pet.).

The trial judge is the sole trier of fact and judge of the credibility of the witnesses

and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25

(Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim.

App. 2006).




                                           13
      Almost total deference to the trial court's rulings is given on (1) questions of

historical fact, even if the trial court's determination of those facts was not based on

an evaluation of credibility and demeanor, and (2) application-of-law-to-fact

questions that turn on an evaluation of credibility and demeanor. Amador, 221

S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.

2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But

when application-of-law-to-fact questions do not turn on the credibility and

demeanor of the witnesses, the trial court's rulings on those questions is reviewed

de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.

Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.


      Stated another way, when reviewing the trial court's ruling on a motion to

suppress, an appellate court must view the evidence in the light most favorable to

the trial court's ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808,

818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, an

appellate court must determine whether the evidence, when viewed in the light

most favorable to the trial court's ruling, supports those fact findings. Kelly, 204

S.W.3d at 818–19. The trial court's legal rulings are reviewed de novo unless its

explicit fact findings that are supported by the record are also dispositive of the

legal ruling. Id. at 818; Wilson v. State, 442 S.W.3d 779, 783-84 (Tex. App.—Fort

Worth 2014, pet. ref’d).
                                          14
       Here, Chambers’ challenge to the propriety of the stop is legal in nature and

do not turn on credibility or demeanor choices made by the trial court upon

denying the motion to suppress. Accordingly, de novo review is appropriate

standard of review for this Court upon reviewing the trial court’s conclusions of

law.


       The issue is whether the totality of the information provided Hauke specific,

articulable facts that, combined with reasonable inferences to be derived from

those facts, would lead to the reasonable conclusion that Chambers was

committing some type of criminal activity. See Derichsweiler v. State, 348 S.W.3d

906, 915–16 (Tex. Crim. App. 2011). Before detaining a suspect, an officer must

corroborate the facts supplied by a citizen-eyewitness. Brother v. State, 166

S.W.3d 255, 258–59, 259 n. 5 (Tex. Crim. App. 2005). However, corroboration

does not require the officer to personally observe criminal conduct; “[r]ather,

corroboration refers to whether the police officer, in light of the circumstances,

confirms enough facts to reasonably conclude that the information given to him is

reliable and a temporary detention is thus justified.” Id. at 259 n. 5; see also Dixon

v. State, 206 S.W.3d 613, 616 n. 13, 617 n. 17, 618–19 (Tex. Crim. App. 2006).


       Chambers argues Hauke did not have sufficient articulable facts to support

the stop of Chambers’ truck. His only information was that a truck was pulling a


                                          15
possible stolen trailer. He did nothing to corroborate that report before stopping

Chambers. The corroboration only occurred following the unlawful stop. The trial

court should have granted the motion to suppress and excluded any evidence

gathered or observations by Hauke following the improper stop.


      Because the trial court committed a constitutional error in admitting the

evidence recovered by Hauke, this Court is called on to determine whether such

error was harmful to Crayton. Long v. State, 203 S.W.3d 352, 353 (Tex. Crim.

App. 2006). If the appellate record in a criminal case reveals constitutional error in

the proceedings below, the appellate court must reverse the judgment under review

unless the appellate court determines beyond a reasonable doubt that the error

made no contribution to the conviction or to the punishment. Id. (citing TEX. R.

APP. P. 44.2(a)). In calculating the probable impact of the error on the jury, the

court is to look at the totality of the circumstances and the record as a whole.

Simpson v. State, 227 S.W.3d 855, 858-59 (Tex. App.—Houston [14th Dist.] 2007,

no pet.); Miles v. State, 204 S.W.3d 822, 828 (Tex. Crim. App. 2006).


      Here, Hauke was the State’s star professional witness before the jury. The

conviction could not have been secured without Hauke’s testimony before the jury.

The State made prominent mention of Hauke’s anticipated testimony in open

statements (6 RR 187). The State once again relied on his testimony and


                                          16
observations following the unconstitutional stop in closing statement (7 RR 71,

73).


       After considering the appropriate 44.2(a) factors, this Court will be unable to

find beyond a reasonable doubt that the error made no contribution to the

conviction or to the punishment. Chambers should be awarded a new trial in

which the fact finder will receive only admissible evidence.


                               Point of Error Three


The judgment should be reformed to properly reflect Chambers was

convicted of a state jail felony rather than a second degree felony (CR 35).


       Chambers was indicted by a Brazos County grand jury for the state jail

felony offense of theft of property with a value over $1,500 and under $20,000

(CR 5). See TEX. PEN. CODE §§ 31.03(a) and 31.03(e)(4)(A).1 Two prior felony

conviction were alleged to enhance punishment to that of a second degree felony

(CR 5). See TEX. PEN. CODE § 12.425(b). The jury found Chambers guilty as

charged in the indictment (7 RR 88).


1
  The theft statute has been amended since Chambers allegedly committed the
offense alleged in the indictment. See Acts 2015, 84th Leg., ch. 1251 (H.B. 1396),
§ 10, eff. Sept. 1, 2015. The amendments do not affect Chambers’ conviction.



                                          17
      Punishment was tried to the court (8 RR). Chambers pled not true to the

prior convictions alleged for enhancement of punishment (8 RR 7). The trial court

found the prior convictions true and assessed punishment at 15 years in prison (8

RR 84).


      This point of error is directed at the erroneous recitation in the judgment

concerning the degree of offense for which Chambers was convicted. Specifically,

the judgment erroneously states the degree of offense as: “State Jail Felony

Enhanced to 2nd Degree Felony” (CR 35).


      Both Campbell v. State, 49 S.W.3d 874 (Tex. Crim. App. 2001) and State v.

Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000) acknowledge state jail felony

offenses are classified as either “aggravated” or “unaggravated/non-aggravated”.

See Campbell, 49 S.W.3d at 877; Webb, 12 S.W.3d at 811. Whether or not a state

jail felony offense is aggravated or unaggravated depends upon whether the

offense is punishable under § 12.35(a), reserved for unaggravated state jail

offenses, or punishable under § 12.35(c), reserved for aggravated state jail

offenses. See Webb, 12 S.W.3d at 811.


      As explained in Ford v. State, 334 S.W.3d 230 (Tex. Crim. App. 2011),

while the punishment range for an offense may be enhanced, the enhancement has

no bearing on the character of the underlying offense. Ford, 334 S.W.3d at 234.

                                         18
When applicable, § 12.35(c) increases the punishment level for a § 12.35(a) state

jail felony to a third-degree felony, but the primary offense itself remains a state

jail felony. Id.


       Even if a defendant is not being harmed by a deficiency in a judgment, he

nevertheless has an interest in having the judgment correctly reflect the findings of

the trial court and the jury. Howell v. State, 563 S.W.2d 933, 936 (Tex. Crim. App.

1978). A judgment should properly recite the degree of the offense for which the

defendant was convicted. TEX. CRIM. PROC. CODE art. 42.01 § 14.


       The general rule is that if an appellate court has the necessary data and

evidence before it, the judgment may be modified or reformed on appeal. Splawn

v. State, 160 S.W.3d 103, 107 (Tex. App. - Texarkana 2005, pet. ref’d). This Court

has the authority to modify the judgment of a trial court. TEX. R. APP. P. 43.2(b).

The authority to modify a judgment includes reformation of a judgment which fails

to correctly reflect the degree of the offense for which the defendant was

convicted. Land v. State, 291 S.W.3d 23, 31 (Tex. App. – Texarkana 2009, pet.

ref’d); Jackson v. State, 288 S.W.3d 60, 64 (Tex. App. – Houston [1st Dist.] 2009,

pet. ref’d).


       The record contains the necessary data and information for modification of

the judgment. This Court should modify the judgment to properly reflect the

                                          19
degree of felony for which Chambers was convicted was that of a state jail felony

rather than a second degree felony offense.


                                      Prayer


       Wherefore, premises considered, David Sylvester Chambers prays this

Honorable Court will reverse the judgment of conviction and remand to the trial

court for a new trial, remand to the trial court for a new punishment hearing,

reform the judgment, or enter any other relief appropriate under the facts and the

law.


                                              Respectfully submitted,

                                              /s/ Richard E. Wetzel
                                              Richard E. Wetzel
                                              State Bar No. 21236300

                                              1411 West Avenue
                                              Suite 100
                                              Austin, TX 78701

                                              (512) 469-7943
                                              (512) 474-5594 – facsimile
                                              wetzel_law@1411west.com

                                              Attorney for Appellant
                                              David Sylvester Chambers




                                         20
                            Certificate of Compliance


      This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, the
pleading contains 4,065 words excluding the items not to be included within the
word count limit.

                                              /s/ Richard E. Wetzel
                                              Richard E. Wetzel
                                              State Bar No. 21236300


                               Certificate of Service

      This is to certify that a true and correct copy of the foregoing pleading was
emailed to counsel for the State, Doug Howell, Assistant District Attorney, at his
email address of dhowell@co.brazos.tx.us on this the 19th day of October, 2015.

                                              /s/ Richard E. Wetzel
                                              Richard E. Wetzel
                                              State Bar No. 21236300




                                         21
