









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00071-CR
______________________________


JETT BRUCE SANDERS, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 28273-B





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	Jett Bruce Sanders appeals his conviction for felony driving while intoxicated, enhanced by
two prior felony convictions.  A jury sentenced him to seventy-five years' confinement.
	Sanders argues on appeal that the trial court committed reversible error in two respects.  The
first alleged error was denying Sanders' oral request for a special jury instruction on the issue of lack
of probable cause.  The second alleged error was overruling Sanders' objection to the State's closing
argument.
	Two Texas Department of Public Safety troopers received a radio report concerning a
possible intoxicated driver in a gray station wagon. Later, the troopers overheard a local tow truck
driver speaking on the county primary radio channel.  The tow truck driver had seen the station
wagon drive into the parking lot of a tattoo parlor.  The troopers went immediately to the tattoo
parlor, where they found a gray station wagon in the parking lot and Sanders inside in the customer
waiting area.  One officer asked the people in the parlor who owned the gray station wagon in the
parking lot, and Sanders answered that he did.  The officer then asked Sanders to step outside and
talk to him.  Sanders willingly complied.  At some point during this event, the owner of the parlor
told the officers that he had heard Sanders drive his vehicle into the guardrail in front of the parlor
shortly before the officers arrived, and that what he thought had happened had been confirmed by
persons who actually saw the collision.  After Sanders failed various field sobriety tests, the officers
arrested him.
	Sanders first contends the trial court erred by denying his request for a jury instruction on
probable cause.  Where the evidence raises an issue regarding the legality of how incriminating
evidence against an accused was obtained, the accused has a right to have the jury instructed that no
evidence illegally obtained may be used against him, and that if the jurors believe or have a
reasonable doubt that the evidence was illegally obtained, they must disregard that evidence.  Tex.
Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2002).  
	Sanders contends that the evidence raises a factual issue on whether the officers had probable
cause to arrest him at the point at which they asked him to step outside, and thus he was entitled to
a jury instruction on the matter.  We disagree.  The issue of probable cause arises in searches,
seizures, and arrests. It does not apply where a police officer approaches a citizen to engage in
conversation.  See State v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim. App. 1999).   At this point,
there was merely an encounter between the officers and Sanders for the purpose of conversation. 
It was neither an arrest, nor even a detention.  At that point, probable cause was irrelevant.  
	Sanders next contends that during closing jury argument, the prosecutor made improper
comments.  During the trial, the parlor owner testified that on the day of Sanders' arrest, Sanders had
twice been to the tattoo parlor, and it was after the second time, which followed the first by several
hours, that the police arrested Sanders.  On Sanders' first trip to the tattoo parlor, he was
accompanied by a friend named Joe, who was also an acquaintance of the parlor owner.  The owner
testified that when Sanders arrived the second time, he came into the parlor and sat down on the
couch.  After the officers came, the owner asked Sanders whether the police were looking for him. 
The owner then told Sanders to take his business outside. Sanders replied, "Tell them Joe was
driving," apparently referring to the acquaintance with whom he had come to the parlor on their first
visit several hours earlier.  During closing argument, the prosecutor pointed out that the defense
could have subpoenaed Joe to testify if in fact he had been the one driving, and the defense had failed
to do so.  Sanders objected that this argument "goes to the burden of proof" of which the defense has
none, and the trial court overruled the objection.  This was not improper argument.  	
	Counsel are permitted to argue logical inferences that arise from a party's failure to produce
evidence that is shown to exist.  See 43 George E. Dix & Robert O. Dawson, Texas Practice: 
Criminal Practice and Procedure § 37.23 at 617 (2d ed. 2001).  Such argument is permissible
if it does not invite the jury to speculate why the defendant failed to testify.  See id.  The evidence
introduced here suggested that Sanders' excuse to the parlor owner and to the officers was that
another person was driving.  It was thus permissible for the prosecutor to argue that if this excuse
were true, the defense would have called the person who could verify that excuse.   These remarks
neither shifted the burden of proof nor commented on Sanders' failure to testify.
	We note that the result would be different if the prosecutor had made a comment that called
for the denial of an assertion of fact or contradictory evidence that only  Sanders was personally able
to offer.  See Nowlin v. State, 507 S.W.2d 534, 536 (Tex. Crim. App. 1974).  In our case, however,
the language used clearly referred to the defense's failure to produce testimony other than from
Sanders personally.  Such argument is not improper.  Id. at 536.  The objection was properly
overruled and the judgment is affirmed.

							William J. Cornelius
							Chief Justice

Date Submitted:	April 11, 2002
Date Decided:		April 18, 2002

Publish

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 to grant her a writ of habeas corpus seeking
possession of her children, David Allen Whatley, II, and Christopher James Whatley.   We
requested that any response from the respondent or real party in interest be "received by
this court no later than Monday, April 03, 2006."  No response has been received from
either the respondent or the real party in interest.  We conditionally grant the writ.
          Catherine Whatley was given custody of the children by an agreed final decree of
divorce.  Following an inspection of her house by the Texas Department of Family and
Protective Services (the Department), Catherine Whatley agreed as part of a written Child
Safety Evaluation Plan to allow David Whatley, the father of the children, to assume
custody of the children.  That agreement expired February 24, 2006.  On March 9, 2006,
Catherine Whatley filed an application for a writ of habeas corpus in the trial court in an
attempt to secure the return of her children to her custody from the custody of David
Whatley.  
          At the hearing on the application for writ of habeas corpus, Diedre Phillips, an
investigation supervisor for the Department, testified that the condition of Catherine
Whatley's home posed a danger to the children's well-being.  Several pictures, which were
taken January 13, 2006, during a visit by the Department to Catherine Whatley's home,
were introduced into evidence.  These pictures reveal that there was trash throughout the
house, urine and human feces on the toilet seats, and the bathroom sink was filled with
trash.   Phillips also testified there was dog feces on the floor and a considerable amount
of trash, including a refrigerator, on the front porch, both of which could pose a hazard to
the children.  Phillips testified Catherine Whatley was informed the children would be
returned once the house was in a suitable condition.  While no pictures of the inside of the
house taken since the visit on January 13th, were introduced, Phillips testified that, on
March 3, 2006, when she visited Catherine Whatley's home, the home was in similar
condition, although not the exact same condition.  There were pictures of the exterior of
the house taken March 3, 2006, introduced into evidence which showed there was still a
considerable amount of trash, and the refrigerator, on the front porch.  Phillips testified that
Catherine Whatley agreed to allow the children to remain with their father March 3, 2006. 
The record does not indicate the length of time Catherine Whatley agreed to allow the
children to remain with their father or any written extension of the original agreement.  
          Following the hearing, the trial court denied the application for writ of habeas corpus. 
Although the trial court orally found there was "a serious and immediate question regarding
the health and safety of the children," no written finding of the existence of a serious
immediate question concerning the welfare of the children was made and no temporary
custody order was granted awarding custody of the children to a person other than
Catherine Whatley .  The trial court did issue a written order denying the application for writ
of habeas corpus, but no temporary custody order was entered and no written finding was
made that a serious and immediate question existed concerning the welfare of the children.
          Mandamus issues only when the mandamus record establishes (1) a clear abuse
of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and
adequate remedy at law.  Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v.
Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).  Mandamus is an extraordinary remedy that
will issue only to correct a clear abuse of discretion, or, in the absence of another statutory
remedy, when the trial court fails to observe a mandatory statutory provision conferring a
right or forbidding a particular action.  Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). 
The proper procedure to challenge a trial court's denial of an application for writ of habeas
corpus seeking possession of a child is through a petition for writ of mandamus.  Lamphere
v. Chrisman, 554 S.W.2d 935, 938 (Tex. 1977); Revey v. Peek, 951 S.W.2d 920, 924 (Tex.
App.—Texarkana 1997,  orig. proceeding).
          With respect to the resolution of factual issues or matters committed to the trial
court's discretion, the reviewing court may not substitute its judgment for that of the trial
court.   Walker, 827 S.W.2d at 840.  The relator must establish that the trial court could
reasonably have reached only one decision.  Id.  Our review is much less deferential with
respect to a trial court's determination of the legal principles controlling its ruling, because
a trial court has no discretion in determining what the law is or in applying the law to the
facts.  Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996); see Walker, 827 S.W.2d at
840.   Thus, a clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion and may result in a writ of mandamus.  Huie, 922 S.W.2d
at 927.  The trial court's erroneous legal conclusion, even in an unsettled area of law, is an
abuse of discretion.  Id. at 927–28.
          An application for writ of habeas corpus seeking custody pursuant to a prior court
order is governed by Section 157.372(a) of the Family Code, which provides as follows:
Subject to Chapter 152 and the Parental Kidnapping Prevention Act (28
U.S.C. Section 1738A), if the right to possession of a child is governed by a
court order, the court in a habeas corpus proceeding involving the right to
possession of the child shall compel return of the child to the relator only if
the court finds that the relator is entitled to possession under the order.

Tex. Fam. Code Ann. § 157.372(a) (Vernon 2002).  The intent of habeas corpus is to
compel obedience to existing orders, not to relitigate the award of custody.  Saucier v.
Pena, 559 S.W.2d 654, 656 (Tex. 1977); In re P.D.M., 117 S.W.3d 453, 460 (Tex.
App.—Fort Worth 2003, pet. denied).  The issuance of the writ of habeas corpus is to be
"automatic, immediate, and ministerial, based upon proof of the bare legal right of
possession."  Schoenfeld v. Onion, 647 S.W.2d 954, 955 (Tex. 1983).  
          We note one exception to the above rule would be if the trial court had entered a
valid temporary order under Section 157.374 of the Texas Family Code finding a serious
immediate question concerning the children's welfare.  See Tex. Fam. Code Ann. § 157.374
(Vernon 2002); see Strobel v. Thurman, 565 S.W.2d 238, 239 (Tex. 1978) (concerning 
former Section 14.10(c) of the Texas Family Code).  Section 157.374 provides: 
"Notwithstanding any other provision of this subchapter, the court may render an
appropriate temporary order if there is a serious immediate question concerning the
welfare of the child."   Tex. Fam. Code Ann. § 157.374.  The term "serious immediate
question" means imminent danger of physical or emotional harm that requires immediate
action to protect the child.   McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977); In re
Lau, 89 S.W.3d 757, 759 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding).
          Under the facts of this case, the trial court clearly abused its discretion by refusing
to grant the application for writ of habeas corpus.  Regardless of whether the trial court
abused its discretion in finding there existed a serious and immediate question to the
children's welfare,
 the trial court failed to issue any temporary orders pursuant to Section
157.374.  A temporary order is required by Section 157.374.  See Tex. Fam. Code Ann. §
157.374; see also Rocha v. Schuble, 809 S.W.2d 681, 683 (Tex. App.—Houston [14th
Dist.] 1991, orig. proceeding); cf. McCaleb v. Hansard, 697 S.W.2d 73, 75 (Tex. App.—El
Paso 1985, orig. proceeding).  Further, the finding that there is a serious and immediate
question concerning the welfare of the child must be made in a written temporary order;
an oral finding is not sufficient.  Lau, 89 S.W.3d at 759; M.J.R. v. Vick, 753 S.W.2d 526,
528 (Tex. App.—Fort Worth 1988, orig. proceeding) (citing Whatley v. Bacon, 649 S.W.2d
297, 299 (Tex. 1983); McElreath, 545 S.W.2d at 958).  Catherine Whatley has legal right
of possession of the children under the permanent custody order.  The custody agreement
entered into by Catherine Whatley has expired.  In the absence of a valid temporary order
awarding custody of the children to someone other than Catherine Whatley and a written
finding that a serious immediate question existed concerning the welfare of the children, 
 
 
 
 
 
 
the trial court was required to grant the application for writ of habeas corpus.  The relief
sought is therefore conditionally granted.  The writ will issue only if the trial court fails to
take appropriate action in accordance with this opinion. 
 
 
                                                                           Donald R. Ross
                                                                           Justice

Date Submitted:      April 5, 2006
Date Decided:         April 6, 2006
