                                                                                       ACCEPTED
                                                                                   06-14-00159-CR
                                                                        SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                              5/13/2015 4:16:14 PM
                                                                                  DEBBIE AUTREY
                                                                                            CLERK

                                                 ORAL ARGUMENT REQUESTED ONLY
                                                      IF REQUESTED BY APPELLANT

                                                                FILED IN
                                                         6th COURT OF APPEALS
                Nos. 06-14-00159-CR, 06-14-00160-CR        TEXARKANA, TEXAS
                                                         5/13/2015 4:16:14 PM
               IN THE SIXTH COURT OF APPEALS                 DEBBIE AUTREY
                     TEXARKANA, TEXAS                            Clerk
                        ________________

               THOMAS LLOYD TAUNTON,
                                            Appellant

                                  v.

                  THE STATE OF TEXAS,
                                            Appellee
                         ________________

          On Appeal in Cause Nos. CR-12-24098, CR-13-24755
                From the 336THJudicial District Court
                       of Fannin County, Texas

__________________________________________________________________


                     STATE’S BRIEF
__________________________________________________________________


                          John B. Setterberg
                        State Bar No. 24043915
                 Assistant Criminal District Attorney
                        Fannin County, Texas
                  101 E. Sam Rayburn Dr., Ste. 301
                         Bonham, Texas 75418
                             903-583-7448
                          903-583-7682 (fax)

                   ATTORNEY FOR THE STATE
                  IDENTITY OF PARTIES AND COUNSEL

      The State certifies that the following is a complete list of the parties,

attorneys, and other persons with interest in the outcome of this case:

(1)   John B. Setterberg, Assistant Criminal District Attorney, Fannin County,

      Texas, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas 75418;

      ATTORNEY FOR THE STATE OF TEXAS.

(2)   Steven R. Miears, 211 North Main St., Bonham, Texas 75418; TRIAL AND

      APPELLATE ATTORNEY FOR APPELLANT.

(3)   Thomas L. Taunton, TDCJ # 01946651, Clements Unit, 9601 Spur 591,

      Amarillo, Texas 79107; APPELLANT.




                                          i
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ......................................................................12

ARGUMENT ...........................................................................................................14

   1. Is it unreasonable to believe that someone who murdered three people
   just days before might have remnants, weapons, bodies, or other evidence
   inside his large truck and trailer as he flees across state lines? ........................... 14

   2. In any event, the evidence seized from Appellant’s truck and trailer did
   not convict him..................................................................................................... 17

CONCLUSION ........................................................................................................20

PRAYER ..................................................................................................................21

CERTIFICATE OF COMPLIANCE .......................................................................21

CERTIFICATE OF SERVICE ................................................................................22




                                                            ii
                                       INDEX OF AUTHORITIES

Cases

Bonds v. State, 403 S.W.3d 867 (Tex. Crim. App. 2013)........................................14

Clay v. State, 240 S.W.3d 895 (Tex. Crim. App. 2007) ..........................................17

Crider v. State, 352 S.W.3d 704 (Tex. Crim. App. 2011) .......................................14

Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006) ................................. 15, 16

Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006) ........................................17

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001) ..................................17

Illinois v. Gates, 462 U.S. 213 (1983) .....................................................................14

State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011) .....................................15


Rules

TEX. R. APP. P. 44.2(a) .............................................................................................17


Constitutional Provisions

U.S. CONST. amend. IV ............................................................................................14




                                                          iii
                          Nos. 06-14-00159-CR, 06-14-00160-CR

                         IN THE SIXTH COURT OF APPEALS
                               TEXARKANA, TEXAS
                                  ________________

                         THOMAS LLOYD TAUNTON,
                                                            Appellant

                                                v.

                             THE STATE OF TEXAS,
                                                            Appellee
                                      ________________

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

       COMES NOW the State of Texas, by and through her assistant criminal

district attorney, and respectfully submits this brief in the above-styled and

numbered cause. This is an appeal from two convictions, one for capital murder

and one for murder (Cl. R., CR-12-24098, at 14; CR-13-24755, at 15).1 In the

murder case, Appellant was sentenced to life in prison and a $10,000 fine (Cl. R.,

CR-13-24755, at 150-51). He was sentenced to life without parole on the capital

murder conviction (Cl. R., CR-12-24098, at 145-46). The State did not seek the

death penalty (Cl. R., CR-12-24098, at 51-52).

                                STATEMENT OF FACTS

       On the evening of January 15, 2012, Thomas Taunton called the Leonard

1
  The cases were tried together and share a single reporter’s record. Where necessary, the clerk’s
records will be distinguished by the corresponding cause number in the trial court.
Police Department and reported that his mother, step-father, and younger sister

were missing (Ct. R. vol. 3, at 71). At the time, Appellant resided with his mother,

Willie Sue Harpst, her husband, Harold Harpst, and his younger sister, Regina

Taunton, at the Harpst residence near Leonard (Ct. R. vol. 3, at 41-42). The officer

receiving the call determined that Appellant’s residence was outside the city limits,

and notified Appellant that he should report his family’s disappearance to the

Fannin County Sheriff (Ct. R. vol. 3, at 77). Appellant called the sheriff’s office,

but realized too late that alerting law enforcement might begin a dragnet from

which he could not escape, so he terminated the call before filing a complete report

(State’s Ex. 1; Record Ex. A at 15).2

       That same day, Appellant’s neighbor, Jeff Harpole, saw him loading up his

pickup truck, and Appellant left the residence that night towing a trailer (Ct. R. vol.

3, at 45, 54). Appellant left Harpole a voice mail approximately two days later

stating that he was traveling, that he had not been able to contact Harold or Willie

Sue, and asking Harpole to feed the family’s animals while they were gone (Ct. R.

vol. 3, at 55-56). When law enforcement arrived at the residence a few days later,

Harpole called and spoke briefly with Appellant (Ct. R. vol. 3, at 44). Appellant

told him that his family was missing and that he would be traveling for some time

(Ct. R. vol. 3, at 44-45). Appellant did not give any indication of where they had

2
 Record Ex. A is a transcript of the audio recording in State’s Ex. 1 and is located at (Ct. R. vol.
12, at 207-33). Page numbers given are those of the exhibit itself, not of the reporter’s record.
                                                 2
gone or when he would be back, and Harpole considered it strange that the family

would leave the main gate to the property open and unlocked (Ct. R. vol. 3, at 44,

57, 59).

      On the evening of January 17, Appellant called his friend, Kevin Mahon,

who lived in West Virginia (Ct. R. vol. 3, at 86, 122). Appellant and Mahon had

once collaborated with a country music band, but they hadn’t spoken in some time

(Ct. R. vol. 3, at 83). He initially left a voicemail informing Mahon that he wanted

“to try to make [him] rich” and would give details later (Ct. R. vol. 3, at 87).

Approximately 15 to 20 minutes later, Mahon was able to call Appellant back (Ct.

R. vol. 3, at 89). After a few minutes of small talk, Appellant informed Mahon that

he had killed somebody, and, after a bit of prodding from Mahon, that he had

killed his own mother as well (Ct. R. vol. 3, at 89). Mahon was understandably

stunned by this news, but he kept his wits about him. Because cell reception was

poor in his area, Mahon suggested he call Appellant back when he got home (Ct.

R. vol. 3, at 90).     Once there, he prepared a digital recorder to capture the

conversation, then listened as Appellant calmly described murdering his family

(Ct. R. vol. 3, at 90-91).

      Appellant’s description of the events was harrowing.        He described for

Mahon how personal differences had arisen between he and Harold (State’s Ex. 1;

Record Ex. A at 7-8, 12-13, 19-20). He described how Harold, who had lost both

                                         3
legs and was confined to a wheelchair, was having money problems and was not

able to keep the residence where he and Willie Sue lived (State’s Ex. 1; Record Ex.

A at 7-8). They had allowed Appellant and Regina to live there as well, and

Harold had asked Appellant to remove his belongings from the barn (State’s Ex. 1;

Record Ex. A at 7-8). Appellant was angry about this, and he resented Harold for

telling him what to do around the house (State’s Ex. 1; Record Ex. A at 7-8, 12-

13). He also resented the care that Harold required because, in Appellant’s words,

“I can’t be his sitter all day” (State’s Ex. 1; Record Ex. A at 13).

      So on that Sunday morning, while Harold and Willie Sue were at church,

Appellant began “plotting and plotting, trying to strategize what I was going to do”

(State’s Ex. 1; Record Ex. A at 9-10). He went outside to test-fire two pistols,

making sure they were ready when the time came (State’s Ex. 1; Record Ex. A at

9-10). Then when Harold and Willie Sue returned,

      I walked into the bathroom where Harold was – Mom was in there –
      and [she] looked down and saw a gun, so I just popped her first.
      Dropped her. And then I went after Harold, because he was on the pot.
      He was having diarrhea problems, and the gun misfired one time, and
      then I was able to hit him again, but he wasn’t dead yet, so I had to
      pop him again. And Regina walks in, so I had to pop her, my sister.

(State’s Ex. 1; Record Ex. A at 10).

      Appellant’s grisly description of events was corroborated at trial.       The

examining pathologist testified that Willie Sue was killed by a single gunshot to

the back of the head (Ct. R. vol. 6, at 21). The entrance point of the bullet
                                           4
appeared to be a “loose-contact wound,” meaning that the searing and burning of

the flesh near the wound indicated the gun was likely extremely close to the skin

when it was fired (Ct. R. vol. 6, at 23-24). The bullet traveled in an upward

trajectory and came to rest in her brain near the top of her skull (Ct. R. vol. 6, at

25, 27).

       Harold died as a result of several gunshot wounds (Ct. R. vol. 6, at 114-15).

One shot appeared to have grazed his skull, another pierced the base of his neck,

and a third was a loose-contact wound to the right side of his skull (Ct. R. vol. 6, at

111-12, 109, 105). Both Harold and Willie Sue were killed with .22 long-rifle

caliber bullets that appeared to be fired from the same type of weapon (State’s Ex.

67-1).3

       Appellant’s sister was also killed by several gunshot wounds (Ct. R. vol. 6,

at 32, 43). Unlike her parents, however, Regina was shot by two different

weapons.4 One round was recovered from the left side of her brain and appeared to

be of the same caliber and rifling that killed Appellant’s parents (Ct. R. vol. 5, at

16; Ct. R. vol. 6, at 79). It created a loose-contact wound on the right side of the

face, near Regina’s cheekbone (Ct. R. vol. 6, at 37-38). Two additional rounds


3
  The rifling, or grooves on the inside of the barrel of the firearm, left consistent marks on the
bullets retrieved from both Willie Sue and Harold Harpst (State’s Ex. 67-1).
4
  Texas Ranger, Brad Oliver, testified that State’s exhibits 30, 31 and 33 were bullets that were
removed from Regina’s body at autopsy (Ct. R. vol. 5, at 16-18). James Jeffress, a forensic
scientist at the DPS laboratory in Garland, Texas, testified that State’s exhibit 30 came from one
type of weapon, while exhibits 31 and 33 necessarily came from another (Ct. R. vol. 6, at 79-80).
                                                5
were recovered that were of a different caliber and were fired from a different

weapon (Ct. R. vol. 5, at 16-18; Ct. R. vol. 6, at 80). One was located in a wound

to Regina’s left abdomen and the other was recovered from the right side of her

brain after causing a loose-contact wound to her left temple (Ct. R. vol. 6, at 42-43,

40). Additionally, Regina had a fourth wound, also a loose-contact wound, that

appeared to enter the right side of her scalp, graze the top of her skull, and partially

exit less than half an inch away (Ct. R. vol. 6, at 33-34; State’s Ex. 61). The

medical examiner was able to collect fragments of metal from the surrounding

tissue, but not a complete bullet (Ct. R. vol. 6, at 36-37).

      Appellant went on to describe his efforts to conceal the murders. He told

Mahon that he hid Harold’s vehicle somewhere and that cleaned the house in an

attempt to remove any biological evidence (State’s Ex. 1; Record Ex. A at 2). Of

course he recognized the futility of the gesture, as he’d seen “too many freakin’

crime-scene shows” to know that “they can find the blood splatters or whatever,”

and that he would not be able to “clean that stuff up with just bleach” (State’s Ex.

1; Record Ex. A at 2).

      Indeed, the DPS task force that canvassed the residence found that the carpet

in the master bathroom had been roughly cut and torn out, and that certain areas

had been hastily cleaned (Ct. R. vol. 4, at 89). Nevertheless, the team was able to

collect blood evidence from each victim at various points throughout the house.

                                           6
Officers located samples of blood from Willie Sue and Harold at various places

throughout the master bathroom, as well as on the carpet of the room just outside

of the master bedroom (State’s Ex. 75, 76). They located samples of blood from

Regina at two places in the living room of the residence, as well as on the stoop of

the back porch (State’s Ex. 75, 76). Officers also located several more samples

from the living room, dining room, den, master bedroom and master bathroom that

presumptively tested positive but were not subject to laboratory testing (State’s Ex.

75, 76). Additionally, officers located a spent round lodged into the wall of the

master bathroom, just to the left of the toilet (Ct. R. vol. 4, at 94). This location

would have been consistent with Appellant’s claim to have shot Harold while the

latter was sitting “on the pot.” Forensic analysis also showed the bullet was of the

same caliber and was fired from the same type of weapon as the bullets that killed

Harold Harpst (Ct. R. vol. 6, at 79). Officers later discovered Harold Harpst’s

vehicle abandoned in the parking lot of a Best Western Inn in Durant, Oklahoma

(Ct. R. vol. 3, at 238).

         Appellant’s confession continued with his detailed description of the terrain

on which he deposited the bodies, and the manner in which he left them.

According to Appellant, it took him two days to find a suitable location (State’s

Ex. 1; Record Ex. A at 15). At first he sought to find a place in Oklahoma, but

later:

                                           7
          I went back down through Highway 11 and found a place with an old
          barn on the side of the road that had a big piece of property. The barn
          was big enough that I could hide behind it ‘till dark, and I needed the
          truck out because it was probably about 800 yard – I mean, 800 feet
          from the barn to the edge of the property was, the creek, and a wooded
          area where I could put the bodies.


(State’s Ex. 1; Record Ex. A at 15-16). Officers eventually located the bodies on

property just west of Highway 11 and south of FM 1417 in Grayson County, Texas

(Ct. R. vol. 4, at 167). The property contained a large barn and other structures, as

well as a creek and wooded area that ran at approximately the same distance

Appellant described from the road (Ct. R. vol. 4, at 169; State’s Ex. 9). There were

fresh tire tracks in the grass that appeared to be made by a large vehicle, and a

second set that appeared to have been made by a pulled trailer (Ct. R. vol. 4, at

176-77). Additionally, the State called four witnesses who each testified to seeing

a white truck and white enclosed trailer on the property on or around Martin Luther

King Day in January, 2012.5 They testified that they had never seen the truck or

trailer there before or since, and that they considered it out of the ordinary at the

time (Ct. R. vol. 5, at 143, 150-51, 156, 162).

          The bodies were located as the Appellant described them, and they appeared

to be arranged in roughly a line from the road to the creek, as if they had been

dumped in sequence (Ct. R. vol. 4, at 174). Harold was found closest to the road,


5
    (Ct. R. vol. 5, at 143-44, 149-50, 155-56, 161).
                                                   8
though still several hundred feet from the highway (Ct. R. vol. 4, at 179). He was

dressed only in a shirt, and was naked from the waist down, consistent with

Appellant’s statement that he had been using the bathroom when he was killed (Ct.

R. vol. 4, at 179). Harold had apparently been transported in a large oil drum, and

was found lying just outside of its opening in the field (Ct. R. vol. 4, at 179).

Several feet further in, closer to the tree line, was Willie Sue’s body (Ct. R. vol. 4,

at 181; State’s Ex. 9). She was found inside of a similar oil drum, and had

apparently been put inside head first (Ct. R. vol. 4, at 181-83; State’s Ex. 9). She

was dressed in slacks and a sweater, with socks or stockings but no shoes (Ct. R.

vol. 4, at 183). Nearby was Regina’s body (Ct. R. vol. 4, at 183; State’s Ex. 9). She

was lying out in the elements and did not appear to have been transported in a

barrel (Ct. R. vol. 4, at 182, 183; State’s Ex. 9). She was dressed in only a

nightgown, consistent with Appellant’s statement that she had stayed home that

morning and not attended church (Ct. R. vol. 4, at 182; State’s Ex. 9). Officers

also discovered a pair of heavy rubber gloves in the field near the location of the

bodies (Ct. R. vol. 4, at 195-96). The gloves had Harold’s blood on them, as well

as Appellant’s DNA (State’s Ex. 75, 76). Lab analysis also confirmed that DNA

from Regina, Willie Sue, and the Appellant was on the boots that Appellant was

wearing when he was later arrested (Ct. R. vol. 5, at 88-89; State’s Ex. 75,76).

      The final topic of relevant information in Appellant’s call to Kenneth Mahon

                                          9
involved his actions during the days following the murders. During the time that

Appellant was seeking a place to dispose of the bodies, Appellant withdrew

substantial sums of money from Harold and Willie Sue’s bank accounts, used her

credit cards to buy gas, and drove back and forth between Leonard and Oklahoma

several times (State’s Ex. 1; Record Ex. A at 9). At trial, the State presented

evidence corroborating the withdrawals, as well as evidence of the several stops

Appellant made to put gas in his truck (State’s Ex. 2-7, 12). It also presented

evidence that the Appellant used his parents’ account information at the Choctaw

Casino in Oklahoma (State’s Ex. 37-39).       The State produced video of the

Appellant at the casino and at gas stations in Bonham, Sherman, and Denison,

Texas (State’s Ex. 5-7, 12, 39).

      When he hung up the phone with Appellant, Mahon was immediately

concerned for his own safety and for that of his family (Ct. R. vol. 3, at 93). He

contacted a friend of his in the West Virginia State Police, J.L. Burdette (Ct. R.

vol. 3, at 93). The next morning he met with Trooper Burdette and delivered the

recording (Ct. R. vol. 3, at 94). Trooper Burdette, in turn, contacted the Leonard

Police Department, who referred him to the Fannin County Sheriff’s Office (Ct. R.

vol. 3, at 124-25).

      Shortly thereafter, Texas Ranger Brad Oliver began his investigation (Ct. R.

vol. 3, at 195). Fannin County sheriff’s deputies had already searched the Harpst

                                       10
residence as part of a welfare check (Ct. R. vol. 3, at 171). They did not locate any

people or dead bodies, but did discover suspicious circumstances and what

appeared to be blood outside (Ct. R. vol. 3, at 170-72). Oliver obtained a search

warrant for the residence and an arrest warrant for Appellant (Ct. R. vol. 3, at 201).

He also sought and obtained permission to track Appellant’s cell phone by

“pinging” its location off of nearby cell towers (Ct. R. vol. 3, at 205-07). From

this, law enforcement determined that Appellant was headed east toward

Louisiana, consistent with his statement to Kenneth Mahon that he was traveling to

Mississippi (Ct. R. vol. 3, at 206).      Ranger Oliver then contacted the U.S.

Marshall’s Office in Louisiana to advise them of the warrant and Appellant’s

suspected whereabouts (Ct. R. vol. 3, at 207).

      The Marshalls, in turn, notified local law enforcement to be on the lookout

for Appellant (Ct. R. vol. 5, at 61). He was apprehended at a Ford dealership in

DeSoto Parish, Louisiana that same day (Ct. R. vol. 5, at 62). Appellant’s truck

and trailer were also located at the dealership, and dealership personnel later

testified that Appellant had told them he was headed from Texas to Mississippi

after having a fight with his step-father (Ct. R. vol. 5, at 57, 137). Based on the

information gathered to that point of the investigation, officers obtained a search

warrant for Appellant’s truck and trailer from District Judge Charles Adams (Ct. R.

vol. 5, at 65; Record Ex. 2). They executed that warrant the next morning in a

                                         11
secured law enforcement facility in DeSoto Parrish (Ct. R. vol. 5, at 65-66).

       Although Appellant’s truck and trailer were packed with belongings, officers

found very little of evidentiary value. The only evidence during the search that was

later used at trial included receipts for Appellant’s gasoline purchases,6 Willie

Sue’s social security card and several credit or debit cards belonging to Harold and

Willie Sue,7 two firearms that were determined to not be the murder weapons,8

several unspent rounds of ammunition, some of which matched the ammunition

Appellant used to kill his victims,9 two packages of hair and beard dye purchased a

few days after the murders,10 the key to Harold’s vehicle,11 and two swabs of blood

on the inside of the trailer.12 Lab testing confirmed the blood belonged to Willie

Sue Harpst and Regina Taunton (State’s Ex. 75, 76).


                         SUMMARY OF THE ARGUMENT

       Appellant complains in a single point of error that evidence obtained under a

pair of faulty search warrants was admitted against him in his trial. Specifically,

he claims that the affidavits upon which the warrants to search his truck and trailer

6
  State’s Ex. 50.
7
  State’s Ex. 49, 51.
8
  State’s Ex. 45, 46.
9
  State’s Ex. 47, 48, 52, 54-56. The ammunition matched that used in the murders only in caliber
and possibly manufacturer. There was no forensic evidence specifically linking the ammunition
to the murders, and the testimony at trial was that it was of a very common and widely
distributed variety (Ct. R. vol. 6, at 87).
10
   State’s Ex. 41.
11
   State’s Ex. 53.
12
   State’s Ex. 44.
                                              12
were based did not recite probable cause and therefore did not support the

warrants’ issuance. He asks this Court to essentially conduct a de novo review of

the issuing magistrate and re-determine his finding of probable cause. However,

the law requires this Court to defer to an issuing magistrate and uphold his findings

when there are any facts or inferences that provide a substantial basis for believing

evidence will be found in a certain place. In this case, the facts presented to the

magistrate, coupled with the inferences he could have reasonably drawn from those

facts, were sufficient to believe that evidence of the murders for which Appellant

was arrested would be in the vehicles where he was found. Appellant’s point of

error should therefore be overruled and his conviction affirmed.

      Moreover, even if the issuing magistrate erred in signing the warrants, most

of the evidence recovered was not admitted at Appellant’s trial. The small portion

that was admitted was merely cumulative of or corroborated by other evidence and,

when judged in the grand scheme of the evidence against him, was largely

inconsequential to Appellant’s conviction. As such, any error should be considered

harmless beyond a reasonable doubt and Appellant’s conviction should be

affirmed.




                                         13
                                       ARGUMENT

      1. Is it unreasonable to believe that someone who murdered three people
         just days before might have remnants, weapons, bodies, or other
         evidence inside his large truck and trailer as he flees across state lines?

         The Fourth Amendment to the U.S. Constitution requires that search

warrants be based on sworn affidavits reciting probable cause, and specifically

describing the place to be searched and the things to be seized. U.S. CONST. amend.

IV. Probable cause exists when, under the totality of the circumstances, there is a

fair probability or substantial chance that evidence of the crime will be found at a

specified location. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013).

The affidavit supporting the warrant must contain sufficient facts to convince a

magistrate that the items sought are probably in the place to be searched. Crider v.

State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). On appeal, a magistrate’s

finding of probable cause is to be given great deference,13 and after-the-fact

scrutiny of the sufficiency of an affidavit should not take the form of a de novo

review. Illinois v. Gates, 462 U.S. 213, 236 (1983). The duty of a reviewing court

is simply to ensure that the magistrate had a “substantial basis” for concluding that

probable cause existed. Crider, 352 S.W.3d at 712. When in doubt, an appellate

court should defer to all reasonable inferences that the magistrate could have made.

Bonds, 403 S.W.3d at 873.


13
     Crider, 352 S.W.3d at 712.
                                          14
      While the facts alleged must be specific, affidavits are not to be read

hypertechincally.   Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).

Rather, they should be considered in a practical, common-sense, and realistic

manner, bearing in mind that the magistrate may also determine probable cause

from any reasonable inferences he draws. Id. At heart, the reviewing court should

focus on the reasonableness of the magistrate’s conclusions, not on what the affiant

conveyed as the author of the affidavit. State v. McLain, 337 S.W.3d 268, 274

(Tex. Crim. App. 2011).

      With this focus in mind, it can reasonably be said that Judge Adams had a

substantial basis for believing there would be some evidence of the recent murders

in Appellant’s truck. He knew that the murders were committed just days before,

and that a sitting Texas judge had already found probable cause to believe

Appellant had committed them.        He knew that just one day prior, officers

suspected Appellant of driving a large, white pickup truck and pulling a large

covered trailer, and that on the same day Appellant had been found with both truck

and trailer at a Louisiana dealership. From this, he could reasonably infer that

officers had received reliable information pertaining to Appellant’s vehicle and

trailer from a person with knowledge sometime in the days after the murders.

Moreover, he could infer from the timing of Appellant’s trip that he was actively

fleeing his home state of Texas on his way to Mississippi. Moreover, the judge

                                        15
must have known that, ubiquitous as a pickup truck might have been in the area,

the addition of a large, covered, locked trailer was not necessarily a common

accessory. Such an accessory would only be useful if Appellant were hauling a

large cargo – for instance bodies, carpet, guns, ammunition, and instruments of

“bleeding injuries or other violent trauma” – and a covered trailer would be ideal if

Appellant wanted to hide his cargo, or any attendant blood spatter, droplets,

smears, or pools, from the outside. In short, Judge Adams could have reasonably

concluded, from the facts that he had and the inferences therefrom, that there was a

substantial basis to believe some evidence existed within Appellant’s truck or

trailer that connected him to the Texas murders. Appellant’s point of error should

therefore be overruled.

      This is not to say that the affidavits in this case were in any way perfect.

Given the facts known to law enforcement at the time, a much more “fleshed out”

version should have been presented to Judge Adams and, that accomplished, this

appellate discussion might have been avoided altogether. On the facts given, Judge

Adams might have declined to issue the warrant, but he did not. The law requires

deference to the magistrate’s reasonable, common sense conclusions, and appellate

courts must allow for any reasonably available inferences in according such

deference. See Davis v. State, 202 S.W.3d 149, 157-58 (Tex. Crim. App. 2006).

As such, Appellant’s point of error should be overruled.

                                         16
   2. In any event, the evidence seized from Appellant’s truck and trailer did
      not convict him.

      Even assuming error, Appellant’s convictions should nevertheless be upheld

given the wealth of other evidence supporting his guilt and the relative paucity that

was derived from the truck and trailer searches. Erroneous admission of evidence

over a Fourth Amendment objection is considered constitutional error. Hernandez

v. State, 60 S.W.3d 106, 106 (Tex. Crim. App. 2001). In such a case, reversal is

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

error did not contribute to the conviction. Id. at n.1; TEX. R. APP. P. 44.2(a). That

is, unless there is a reasonable possibility that the error, within the context of the

entire trial, moved the jury from acquitting the defendant to convicting him, then

there is no harm. Davis v. State, 203 S.W.3d 845, 852-53 (Tex. Crim. App. 2006).

      This determination requires an appellate court to consider the entire record.

Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). Among the factors

that must be weighed are (1) the importance of the complained-of evidence to the

State’s case, (2) whether the evidence was cumulative of other evidence at trial, (3)

the presence or absence of other evidence corroborating or contradicting the

complained-of evidence, and (4) the overall strength of the State’s case. Id. The

reviewing court may also consider any other factor contained in the record that

affects the probable impact of the error. Id.

      Starting with the fourth factor, the State presented an overwhelmingly strong
                                         17
case against the defendant. Chief among the State’s evidence was the Appellant’s

recorded confession to his friend, Kenneth Mahon.        The jury listened as the

Appellant described, in his own voice and words, how he planned and executed the

systematic murders of his own family.        That alone would likely have been

sufficient to convict the Appellant, but the State spent the better part of the next

week corroborating Appellant’s statements with information from various sources.

The jury heard testimony from the neighbor who saw Appellant packing his

vehicle and received the odd phone call asking him to feed the animals, they heard

from the Leonard police officer who fielded Appellant’s initial report that his

family was missing. They heard from Ranger Oliver, as well as two other Rangers

assigned to processing the crime scene at the house and the field where the bodies

were found. They heard that the blood evidence throughout the residence was

consistent with Appellant’s version of events to Mahon, and they heard how the

grisly dump site was also eerily similar to Appellant’s description. They heard the

DNA evidence linking Appellant to gloves found at the dump site, and identifying

Regina’s and Willie Sue’s blood on the boots Appellant was eventually arrested in.

They heard evidence that the entry wounds and final placement of the bullets was

consistent with not only the timeline Appellant described for the murders, but also

of the likely position of his mother and the struggle he had with Harold. They saw

evidence of Appellant’s stealing his parents’ money after their murder, and of him

                                        18
using their credit cards to purchase gas in Bonham, Denison, and Sherman over the

next few days while he searched for a place to dispose of their bodies. They

learned how he was apprehended in Louisiana, presumably on his way to

Mississippi, and how he told employees of the dealership that he’d left his home in

Texas because of an argument with his step-father. In short, even setting aside

what was found in his vehicle, the jury received a massive amount of evidence

corroborating Appellant’s own description of how he’d carried out the pre-

meditated murder of his family, and how he tried to cover it up.

      While it is true that some portion of the property located in the truck and

trailer was introduced into evidence, it was but a small fraction of the State’s

overall presentation. The items were largely cumulative of and corroborated by

other evidence at trial, and none of the items had any direct bearing on the

commission of the murders. Moreover, with the exception of a tangential mention

of the hair dye and gas receipts, none of the items were at all emphasized by the

State. Thus, viewing the evidence as a whole, the property recovered during the

search of Appellant’s truck and trailer was, for all intents and purposes,

inconsequential to his ultimate conviction. It cannot be said to have tipped the

scales or moved the needle, or to otherwise have swayed the jury to convict

Appellant when it otherwise would have acquitted him. As such, any error in the

admission of said evidence was harmless beyond a reasonable doubt, and

                                        19
Appellant’s point of error should be overruled.

                                  CONCLUSION

      Judge Adams properly issued a search warrant for Appellant’s truck and

trailer based on the facts presented to him and the reasonable inferences he was

able to draw from the supporting affidavit. Given the highly deferential standard

in reviewing the actions of an issuing magistrate, this Court should conclude that

Judge Adams had a substantial basis for issuing the warrants and overrule

Appellant’s point of error. Even if this Court concludes that Judge Adams should

not have issued the warrants, it should still nonetheless consider the error harmless,

as the property recovered in the search was dwarfed by the other evidence

presented at trial and was virtually inconsequential to Appellant’s conviction.




                                         20
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, there being no reversible error

in the trial of this case, the State respectfully moves this Court to overrule

Appellant’s point of error and affirm his conviction. The State further prays for

any and all such additional relief as the Court may deem just and appropriate.

      Dated: May 13, 2015
                                             Respectfully submitted,


                                             /s/   John B. Setterberg
                                             John B. Setterberg
                                             State Bar No. 24043915
                                             Assistant Criminal District Attorney
                                             Fannin County, Texas
                                             101 East Sam Rayburn Dr., Suite 301
                                             Bonham, Texas 75418
                                             903-583-7448
                                             903-583-7682 (fax)

                      CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the foregoing document contains 5,068

words, exclusive of the portions described by TEX. R. APP. P. 9.4 (i)(1), as

computed by the computer program used to prepare the document.


                                             /s/   John B. Setterberg
                                             John B. Setterberg
                                             Assistant Criminal District Attorney
                                             Fannin County, Texas



                                        21
                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the

foregoing was served electronically to the individual listed below on this the 13th

day of May, 2015.

                                             /s/   John B. Setterberg
                                             John B. Setterberg
                                             Assistant Criminal District Attorney
                                             Fannin County, Texas


Steven R. Miears
211 North Main St.
Bonham, Texas 75418
ATTORNEY FOR APPELLANT




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