      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00012-CR



                             John Malcolm Nordstrom, III, Appellant

                                                  v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
     NO. D-1-DC-10-900258, THE HONORABLE JIM CORONADO, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant, John Malcolm Nordstrom, III, pled guilty to murder and submitted the

issue of punishment to a jury. See Tex. Penal Code § 19.02(b)(1). The jury assessed his punishment

at 50 years’ imprisonment. Id. § 12.32. In a single point of error on appeal, appellant complains

about the trial court’s denial of his motions to suppress. We affirm the judgment of conviction.


                                          BACKGROUND

                Police and paramedics were dispatched to appellant’s home in response to a 911 call

made by appellant’s adult son, John Malcolm Nordstrom, IV.1 On arrival, they found the

decomposing body of appellant’s wife, Deborah Gordon, on the couch. Preliminary investigation

suggested that there had been a suicide pact between appellant and his wife, and that appellant had




       1
           Because appellant and his son share the same name, we refer to appellant’s son as John IV.
survived.2 Paramedics transported appellant to the hospital for possible carbon monoxide poisoning,

and a homicide detective was called to the scene to investigate the death.

               Based on information he received at the scene, the detective understood appellant to

be suicidal. Although he knew that appellant had been transported to the hospital, he believed

appellant could return to the house at any time. Consequently, the detective seized appellant’s

revolver for appellant’s safety.3 When the detective saw Gordon’s body, he was unable to

immediately determine the cause of her death due to her decomposed state. During his initial

walk-through of the home, the detective saw several notes lying on a dining table in the family room,

one of which was a typed letter to appellant’s sons suggesting a suicide pact. Next to them was an

empty bottle of sleep aid medication. These items led the detective to believe that Gordon’s death

was related to a probable overdose. However, the detective later found a crumpled up note,

apparently written by appellant, in the kitchen trash can that indicated that the victim had shot



       2
          John IV found appellant sitting in his car in the garage with the engine running. He banged
on the windows of the garage door to get his father’s attention and appellant went to the front door
to let him in. John IV noticed a very strong odor, “like the garbage hadn’t been taken out,” and
questioned appellant about what was going on. When appellant responded “What do you mean?,”
John IV asked appellant why he was in the car trying to kill himself. Appellant mentioned
something about the mortgage and creditors. John IV then asked about Gordon and appellant
indicated that she was inside but not alive. When John IV asked what happened, appellant said that
he shot her. At that point, John IV called 911. He did not disclose to responding authorities that his
father had admitted shooting Gordon. In fact, he only disclosed his father’s admission to police a
week later when he was subpoenaed to testify at the grand jury.
       3
          The record reflects that one of the initial responding officers questioned appellant and his
son generally about the situation. During this conversation, either appellant or his son disclosed the
presence of a gun in the house and appellant provided the exact location of the gun in the house to
the officer. During this conversation, John IV complained to the officer that he had not “read
[appellant] his rights.” The officer explained that appellant was not a suspect. John IV then
commented that the officer “might want to make him a suspect and read him his rights.”

                                                  2
herself.4 At that point the detective began to suspect that appellant’s gun was involved in Gordon’s

death and that perhaps her death was not the result of a suicide. The detective then went to the

hospital and obtained written consent from appellant to search the house.

               Appellant was subsequently indicted for the murder of his wife. The record reflects

that appellant filed two general motions to suppress before trial. At his formal arraignment the week

before trial, appellant expressed his intent to plead guilty and have the jury assess punishment.

During the announcements on the day of trial, appellant reiterated his intent to plead guilty and have

the jury assess his punishment. He then formally entered his guilty plea before the court, after being

appropriately admonished by the judge, and elected to have the jury assess his punishment. He did

so without mentioning the motions to suppress or seeking a ruling on them. During jury selection,

both sides informed the venire panel that appellant had pled guilty. After the jury was selected and

empaneled, appellant brought the suppression issue to the court’s attention. He sought to suppress,

in the punishment phase of trial, the gun recovered from his bedroom and the crumpled up

handwritten note discovered in the kitchen trash can, both of which were seized prior to the written

consent appellant gave to search his home. The trial court conducted a hearing and denied the

motion. Appellant subsequently repeated his guilty plea before the jury. After hearing the evidence,

the jury assessed appellant’s punishment at confinement for 50 years in the Texas Department of

Criminal Justice.




       4
          The record reflects that the note was not in plain view but was crumpled up in a ball at the
top of the trash. The detective removed the note from the trash can in order to open it and read it.

                                                  3
                                           DISCUSSION

                In his sole point of error, appellant contends that the trial court erred in denying his

motions to suppress because the gun and crumpled up handwritten note were seized as a result of

a warrantless search of his home without his consent.

                We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion, applying a bifurcated standard of review where we give almost total deference to a trial

judge’s findings of historical fact and credibility determinations that are supported by the record, but

review questions of law de novo. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013);

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We will affirm the trial court’s ruling

if it is reasonably supported by the record and is correct under any theory of law applicable to the

case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).

                The Fourth Amendment to the United States Constitution prohibits unreasonable

searches and seizures. Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011); see U.S. Const.

amend. IV; Illinois v. Rodriguez, 497 U.S. 177, 179 (1990). The entry into a residence by police

officers is a “search” for purposes of the Fourth Amendment. Limon, 340 S.W.3d at 756; Valtierra

v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010). A warrantless police entry into a residence

is presumed unreasonable unless the entry falls within one of a well-defined group of exceptions.

Limon, 340 S.W.3d at 756; Valtierra, 310 S.W.3d at 448. Voluntary consent is one such exception.

Rodriguez, 497 U.S. at 181; Limon, 340 S.W.3d at 756; Valtierra, 310 S.W.3d at 448.

                An owner’s or occupant’s voluntary consent makes the entry into a residence by

police officers constitutionally “reasonable.” Rodriguez, 497 U.S. at 181; Valtierra, 310 S.W.3d at



                                                   4
448. Consent may be given orally or by action, or may be shown by circumstantial evidence. State

v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App. 2011); Valtierra, 310 S.W.3d at 448. The validity

of an alleged consent to search is a question of fact to be determined from the totality of the

circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996); Weaver, 349 S.W.3d at 526; Valtierra,

310 S.W.3d at 448. The State must prove voluntary consent by clear and convincing evidence.

Weaver, 349 S.W.3d at 526; Valtierra, 310 S.W.3d at 448.

               The record reflects that police arrived at appellant’s home in response to a 911 call

made by John IV reporting the dead body of his stepmother. Upon arrival, the police were directed

inside appellant’s home to Gordon’s dead body by appellant.5 Thus, the record reflects that police

officers entered appellant’s home at his direction and with his consent. See Gallups v. State,

151 S.W.3d 196, 201 (Tex. Crim. App. 2004) (consent to enter home could be inferred from

defendant’s action of motioning officer to come forward).

               Consent to enter a residence, however, does not, without more, provide consent for

a police officer to search the entire residence or objects therein. Valtierra, 310 S.W.3d at 448. The

scope of a search is usually defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251

(1991); Weaver, 349 S.W.3d at 526. The “standard for measuring the scope of a suspect’s consent

under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical

reasonable person have understood by the exchange between the officer and the suspect?” Jimeno,

500 U.S. at 251; Weaver, 349 S.W.3d at 526.




       5
         The record also reflects that appellant later directed officers to the location of his gun in
his bedroom.

                                                  5
               Here, police officers were directed into appellant’s home to address the situation of

Gordon’s dead body. Based on the exchange between appellant and the officers responding to the

“deceased person” call, a reasonable person would have understood that the purpose for which the

officers entered the home, upon appellant’s request and with his permission, was to investigate

Gordon’s death. After entering the house, the officers’ search was consistent with the consent

appellant gave when he invited the officers into his home to deal with the matter of his wife’s dead

body. See Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012) (“If an officer is invited or

permitted to come into a house for a particular purpose (such as to look for a particular person or

object), the scope of the consent to enter normally includes consent to search those areas in which

the person or object would reasonably be found.” (quoting Valtierra, 310 S.W.3d at 450)). It was

reasonable for the officers to search the home to gather information about Gordon’s death, which

would include evidence showing what caused her death and the circumstances under which she died.

               Viewed in the light most favorable to the trial court’s ruling, the record reflects that

appellant invited police officers into his home to investigate the death of his wife. The gun and

crumpled up handwritten note were discovered during the initial search of appellant’s home that was

consistent with the purpose of their entry and within the scope of appellant’s consent. Therefore,

we conclude that the trial court did not abuse its discretion in denying appellant’s motions

to suppress.

               Moreover, even assuming arguendo that the trial court erred in failing to suppress the

evidence, we conclude that the admission of the gun and crumpled up handwritten note seized from

appellant’s home during the punishment phase of trial was harmless error.



                                                  6
               The harm analysis for the erroneous admission of evidence obtained in violation of

the Fourth Amendment is the constitutional standard set forth in Rule of Appellate Procedure

44.2(a). Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001); Tex. R. App. P. 44.2(a).

Under Rule 44.2(a), we must reverse the judgment unless, after reviewing the record as a whole, we

determine “beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.” Tex. R. App. P. 44.2(a); Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007).

Constitutional error does not contribute to the conviction or punishment if the jury’s verdict would

have been the same even if the erroneous evidence had not been admitted. Clay, 240 S.W.3d at 904.

               Factors to consider in the harm analysis include the nature of the error, whether it was

emphasized by the State, the probable implications of the error, and the weight the jury would likely

have assigned to it in the course of its deliberations. Snowden v. State, 353 S.W.3d 815, 822 (Tex.

Crim. App. 2011). These factors “are not exclusive considerations in any particular case,” and our

inquiry should be “whether, or to what extent, the error may have contributed to the conviction” or

increased the punishment. Id. “At bottom, an analysis for whether a particular constitutional error

is harmless should take into account any and every circumstance apparent in the record that logically

informs an appellate determination whether ‘beyond a reasonable doubt [that particular] error did

not contribute to the conviction or punishment.’” Id. (quoting Tex. R. App. P. 44.2(a)).

               Here, the alleged error was the admission of appellant’s gun and the crumpled up

handwritten note (presumably written by appellant) during the punishment phase of trial—after

appellant pled guilty to murder—as a result of the trial court’s erroneous denial of appellant’s

motions to suppress.



                                                  7
                Appellant asserts that had he known the gun and crumpled up note would not be

admissible against him (if the court had granted the motions to suppress), he might have “reassessed

the State’s case on guilt-innocence” and “change[d] his mind” about pleading guilty before he did

so in front of the jury. The record does not support this assertion. Appellant first expressed his

intent to plead guilty at his formal arraignment the week before trial, well after the filing of his

motions to suppress.6 During the announcements on the day of trial, appellant reiterated his intent

to plead guilty and have the jury assess his punishment. He then formally entered his guilty plea

before the court, without mentioning the motions to suppress or seeking a ruling on them. Thus, he

opted to plead guilty without knowing whether the challenged evidence would be suppressed. The

record does not reflect that appellant’s decision to plead guilty was in any way related to whether the

challenged evidence would or could be admitted at trial.7 Finally, while it is true that appellant could

        6
          The only pretrial motion mentioned at the arraignment hearing was a “special motion in
limine” filed by appellant.
       7
           Before formally entering the guilty plea, the following exchange occurred between
appellant and his counsel:

        COUNSEL:            In discussing with you the pros and cons of going to trial and
                            whether or not to plead guilty, you’ve discussed that with me and
                            you’ve made the decision that you want to go ahead and plead
                            guilty and go to the jury for punishment; is that correct?

        APPELLANT:          That’s correct.

        COUNSEL:            And I’ve explained to you the consequences of that is that you are
                            pleading guilty to murder and the punishment range is between
                            five and 99 years. You are not probation eligible. And I’ve
                            explained to you that by that plea we’re conceding you were
                            competent and sane. You understand all that, correct?

        APPELLANT:          Yes, sir.

                                                   8
have changed his plea had the court suppressed the evidence, see Mendez v. State, 138 S.W.3d 334,

345 (Tex. Crim. App. 2004) (“In a trial before a jury, the defendant may change the plea from guilty

to not guilty at any time before the jury retires to deliberate its verdict.” (citing McWherter v. State,

571 S.W.2d 312, 313 (Tex. Crim. App. 1978)), the jury had already been informed during jury

selection that appellant had pled guilty. The fact that appellant’s counsel told the venire panel about

appellant’s guilty plea before raising the suppression issue to the court further demonstrates that

appellant’s plea was not contingent on the trial court’s ruling on the motions to suppress or the

suppression of the challenged evidence.

                Appellant urges us to find harm in the admission of the gun during the punishment

phase of trial because the exclusion of the gun “might have changed the entire mode of the trial.”

He maintains that he was harmed by the admission of the gun because the State offered DNA

evidence that “tied him to the murder weapon” which would not have been admissible had the gun

been excluded. However, appellant overlooks the fact that the DNA evidence in this case was not

especially probative. The forensic DNA analyst testified that she did not include statistical

probabilities in her report because “[appellant’s] DNA profile being found on items in his possession

that he owns in his home are not what we would consider DNA statistically that probative.” She

agreed with defense counsel that it was “not a surprise” that appellant’s DNA was on a gun




        COUNSEL:            And this is your decision, you’ve made it freely and voluntarily;
                            is that right?

        APPELLANT:          Yes, sir.

                                                   9
belonging to him that was in his home. Moreover, appellant ignores the testimony of his son who

testified that appellant had admitted to him that he had caused his wife’s death by shooting her.8

               Appellant further argues that had the gun been excluded, the lack of a murder weapon

with his DNA “would have invited a more vigorous cross-examination of the medical examiner”

and such a cross-examination of her findings “could have injected reasonable doubt about the cause

of death.” He complains that the medical examiner failed to explain why the gunshot wound that

caused Gordon’s death could not have been self inflicted. However, there was no reasonable doubt

about the cause of death. Appellant pled guilty to the allegations in the indictment: intentionally

or knowingly causing Gordon’s death by shooting her with a firearm. Thus, the State had no reason

to have the medical examiner explain how she concluded the manner of death was homicide rather

than suicide. In addition, appellant once again ignores the testimony of John IV about appellant’s

admission to him that Gordon was dead because he shot her.

               Appellant contends that he was harmed by the admission of the crumpled up

handwritten note because it “cast him as a sociopath who was actively conjuring a method to

exonerate himself by faking a suicide attempt.”9 However, other evidence at trial demonstrated

appellant’s deceptive conduct (fabricating a suicide pact and possibly faking a suicide attempt),

       8
           Specifically, John IV testified, “And then I asked where [Gordon] was and he said she was
inside, and I asked if she was alive and he said no. And I asked, you know, what happened, and he
said, ‘I shot her.’”
       9
         The State argued that appellant was sitting in his car with the engine running to fake a
suicide attempt. The prosecutor referenced an article about suicide methods that appellant
downloaded to his computer after Gordon’s death that indicated that suicide by carbon monoxide
poisoning (achieved by running a car’s engine in a closed space) was no longer a viable method of
committing suicide because catalytic converters found on all modern automobiles eliminate over
99% of carbon monoxide from motor car exhaust.

                                                10
including articles appellant downloaded to his computer, internet search queries about suicide, and

a typed letter addressed to appellant’s sons suggesting a suicide pact.10

               The prosecution did not emphasize the gun or the crumpled up note; no mention of

either was made during the State’s closing argument. While the State did argue that appellant

murdered his wife and then attempted to cover his criminal conduct by fabricating a suicide pact and

faking a suicide attempt, the State’s focus was the research on suicide that appellant conducted on

the internet after Gordon’s death and the typed letter addressed to appellant’s sons.

               The probable implication of the gun is that the jury could believe that appellant’s

revolver was the weapon he used to cause his wife’s death. However, appellant pled guilty to

causing Gordon’s death “by shooting her with a firearm.” Moreover, evidence apart from appellant’s

gun (and his guilty plea) demonstrated that appellant shot his wife to death. Appellant admitted to

his son that Gordon was not alive because he shot her. The medical examiner’s testimony

corroborated appellant’s admission to his son, establishing that Gordon died as a result of a gunshot

wound to the head. The probable implication of the crumpled up note is that the jury could believe

that appellant was attempting to cover up his crime. However, as previously noted, appellant’s


       10
          A computer forensics examiner testified that appellant downloaded an article entitled “It’s
Murder or Suicide? How You and Your Detective Can Tell the Difference” after Gordon’s death.
The examiner also testified that he recovered internet search queries about suicide in the temporary
internet files on appellant’s computer that were made after Gordon’s death, including “Most
Common Types of Suicide,” “Suicide,” and “If Someone Wanted to Omit (corrected by Google to
“Commit”) Suicide with a Revolver, Where is the Best Place to Shoot?”
        Two versions of a typed letter to appellant’s sons were admitted into evidence: a hard copy
found on the dining table by the detective and a Word document file on appellant’s computer
recovered by the computer forensics examiner. Both versions stated, “I have exhausted every option
and see no other way out. . . . Deborah is in this with me because she doesn’t have a sustainable
future and she is tired of the battle.”

                                                 11
deceptive conduct was amply demonstrated by other evidence. We can ascertain no meaningful

implications of admitting appellant’s gun and the crumpled up handwritten note that were not

demonstrated by other evidence. Furthermore, because the challenged evidence was cumulative of

properly admitted evidence, it is unlikely the jury assigned much, if any, weight to this evidence.

               In this case, the jury heard evidence about the murder—including the fact that

appellant lived with his wife’s decomposing body on the couch for at least two weeks—as well as

evidence of appellant’s deceptive conduct attempting to minimize (or eliminate) his culpability for

that murder.11 On this record, we are persuaded beyond a reasonable doubt that any error in

admitting the challenged evidence during the punishment phase of trial did not contribute to

appellant’s punishment. The gun and crumpled up handwritten note established little, if anything,

about the offense or appellant that was not also well established by other evidence. See Clay,

240 S.W.3d at 905–06. We overrule appellant’s sole point of error.


                            CLERICAL ERROR IN JUDGMENT

               We note, however, that the judgment of conviction in this case contains a clerical

error. The suffix has been omitted from appellant’s name. This Court has authority to modify

incorrect judgments when the necessary information is available to do so. See Tex. R. App. P.

46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Since the necessary




       11
          The jury also heard testimony about the circumstances of appellant’s termination from his
long-time employment for a Dallas corporation: he embezzled money from the company by
obtaining duplicate reimbursement for his business expenses. The duplicate reimbursement was “in
excess of six figures.”

                                                12
information is available here, we modify the judgment of conviction to correctly reflect appellant’s

name as “John Malcolm Nordstrom, III.”


                                         CONCLUSION

               Having overruled appellant’s single point of error, we modify the judgment of

conviction as noted above and affirm the judgment as modified.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Modified and, as Modified, Affirmed

Filed: May 8, 2014

Do Not Publish




                                                13
