      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00134-CR



                              Michael Patrick Kennedy, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR2006-016, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                                           OPINION


               Michael Patrick Kennedy pleaded guilty to the crime of aggravated assault of a police

officer. See Tex. Penal Code Ann. §§ 22.01(a) (defining assault), 22.02(a) (defining aggravated

assault in relation to definition of assault found in article 22.01), 22.02(b)(2)(B) (West Supp. 2007)

(specifying that aggravated assault is first-degree felony if committed against public servant

performing his official duties). After Kennedy was arrested for the crime, the police obtained a

warrant to search Kennedy’s residence and seized various items from his property. Prior to trial,

Kennedy filed a motion to suppress the evidence that was seized under the warrant. The district

court denied the motion, and Kennedy pleaded guilty. In his first three issues on appeal, Kennedy

argues that the district court erred by denying his motion because there was no probable cause to

issue the warrant. In his fourth issue, he alleges that even if the warrant was supported by probable

cause, some of the evidence obtained from his home was outside the scope of the warrant. In his
final issue, Kennedy argues that the district court erred by allowing the State, during its rebuttal, to

make arguments that exceeded the scope of permissible argument. We will affirm the judgment of

the district court.


                                          BACKGROUND

                Late one night in March 2005, Officer Richard Kunz observed Kennedy speeding on

I-35 and initiated a traffic stop. After Kennedy pulled his vehicle over to the side of the road and

stopped his car, Kunz approached Kennedy’s car. Although who initiated the shooting is disputed,

it is undisputed that shortly after Kunz reached Kennedy’s car, multiple shots were fired by both

Kennedy and Kunz. During the exchange, Kennedy was shot three times, but Kunz was not injured.

                In response to a call by Kunz, several police officers arrived on the scene, and

Kennedy was arrested and taken into custody. After being arrested, Kennedy was charged with

attempted capital murder. See Tex. Penal Code Ann. §§ 15.01 (West 2003) (explaining criminal

attempt), 19.02 (West Supp. 2007) (defining murder), 19.03(a)(1)(providing that person commits

capital murder if he “murders a peace officer or fireman who is acting in the lawful discharge of an

official duty and who the person knows is a peace officer or fireman”).

                Several days after Kennedy was arrested, a Texas Ranger prepared an affidavit for

the purpose of obtaining a search warrant to search Kennedy’s home. See Tex. Code Crim. Proc.

Ann. art. 18.01(b) (West Supp. 2007) (requiring that sworn affidavit be filed when search warrant

is requested); see also id. art. 18.01(a) (West Supp. 2007) (defining search warrant as “a written

order, issued by a magistrate and directed to a peace officer, commanding him to search for any

property or thing and to seize the same and bring it before such magistrate”).

                                                   2
                  Shortly after the affidavit was submitted, the reviewing judge issued a search warrant,

and law-enforcement officers executed the warrant and seized various items from Kennedy’s

residence. Subsequent to the seizure and after being indicted, Kennedy filed a motion to suppress

the seized items. In particular, Kennedy contended that the items should be suppressed because there

was no probable cause to support the warrant, the information in the affidavit supporting the warrant

was stale, the police did not properly establish the reliability and credibility of one of the sources of

information mentioned in the affidavit, and the police seized items that were outside the scope

of the warrant.

                  In early January 2006, a suppression hearing was held. After hearing testimony, the

district court concluded that two types of items seized were beyond the scope of the warrant but

denied the motion to suppress in regard to the remaining items. Further, the court found that the

warrant was supported by probable cause, that “[t]here was reliability in the affidavit,” and that the

information in the affidavit was not stale.

                  Prior to the suppression hearing, Kennedy agreed to plead guilty to the crime of

aggravated assault of a police officer but also agreed to leave the terms of the punishment “open.”

In other words, the court was free to impose any punishment allowable for the crime of aggravated

assault of a police officer. In addition, Kennedy retained the right to appeal the district court’s ruling

on his motion to suppress if it ruled against him. See Tex. Code Crim. Proc. Ann. art. 44.02

(West 2006) (allowing criminal defendant to appeal conviction); see also Young v. State, 8 S.W.3d

656, 663 (Tex. Crim. App. 2000) (explaining that defendants may enter into conditional pleas).




                                                    3
               Immediately after the court denied his motion to suppress, Kennedy pleaded guilty.

Approximately two months later, in March 2006, a hearing was held to determine Kennedy’s

punishment.    After hearing testimony from various witnesses, the district court sentenced

Kennedy to a prison term of 75 years. See Tex. Penal Code Ann. § 12.32 (West 2003) (explaining

that person found guilty of first-degree felony may be imprisoned for life or for any term between

5 and 99 years).


                                           DISCUSSION

               Kennedy raises five issues on appeal. In his first three issues, Kennedy essentially

asserts that the search warrant was not supported by probable cause and that the district court should

therefore have granted his motion to suppress the evidence seized from his home. In his first issue,

he generally asserts that information in the affidavit did not establish probable cause to search his

home. In his second issue, Kennedy contends that the affidavit does not establish probable cause

because it relies on material misstatements and omissions. In his third issue, Kennedy contends that

the affidavit cannot establish probable cause because relevant portions of the affidavit were based

on information that was stale at the time the warrant was issued. In his fourth issue, Kennedy argues

that even if there was probable cause to issue the warrant, some of the evidence that was seized

during the search was beyond the scope of the search warrant. Finally, he contends that the district

court erred by improperly allowing the State to present, in rebuttal, argument concerning who fired

the first shot during the shooting incident. As a corollary to these arguments, Kennedy asserts that

if this Court rules in his favor on any of his five issues, we should reverse the district court’s

judgment and remand the case for a new trial rather than reverse for a new punishment

                                                  4
determination. Because the first four issues are related, we will address them together and address

Kennedy’s final issue separately.


The First Four Issues are Waived

               At the outset of this case, we note the unusual nature of this appeal. As previously

stated, Kennedy’s first four issues are related to the evidence seized from his home after the

commission of the offense. The State vigorously fought to preserve the right to introduce the

evidence seized, and Kennedy pleaded guilty only after learning that the evidence would not be

suppressed. When making his plea, Kennedy was under the assumption, which was shared by the

State, that he would be allowed to contest that determination on appeal. Moreover, both Kennedy’s

and the State’s arguments on appeal assume that Kennedy had the right to contest the district court’s

ruling, and neither party mentioned the concept of waiver. However, our review of relevant case law

demonstrates that given the nature of the evidence Kennedy argues should have been suppressed,

Kennedy waived his right to appeal the district court’s ruling when he pleaded guilty to the crime

of aggravated assault of a police officer, and we are, accordingly, prohibited from addressing the

merits of these claims.

               In 2000, the court of criminal appeals issued an opinion describing the circumstances

in which a defendant may appeal a trial court’s allegedly erroneous ruling after pleading guilty to the

alleged offense. Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000). Although that case involved

a defendant who pleaded guilty to a crime but did not enter into a plea-bargain agreement, the court

developed a single rule that applies in all situations in which a defendant pleads guilty regardless of




                                                  5
whether the plea was the result of a plea bargain. Id. at 666-67. In particular, the court

held as follows:


       Whether entered with or without an agreed recommendation of punishment by the
       State, a valid plea of guilty or nolo contendere “waives” or forfeits the right to appeal
       a claim of error only when the judgment of guilt was rendered independent of, and
       is not supported by, the error.


Id. In that case, Young filed a motion to suppress evidence demonstrating that she was found to be

in possession of cocaine, and the district court denied the motion. Id. at 657. The appellate court

determined that Young had waived her right to appeal the ruling by pleading guilty to cocaine

possession, id., but the court of criminal appeals concluded that the ruling on the motion to suppress

evidence was not independent of the offense of possession of a controlled substance and that the

“judgment would not be supported without the evidence” id. at 667. Accordingly, the court

concluded that the appellate court should have addressed the merits of the defendant’s appeal. Id.

               When interpreting the reasoning in Young, some appellate courts have determined that

there must be a direct nexus between the error and the guilt or innocence of the appellant regarding

the offense pleaded to. See Guidry v. State, 177 S.W.3d 90, 93 (Tex. App.—Houston [1st Dist.]

2005, no pet.). For example, more than one court has held that the judgment of guilt was not

rendered independent of an alleged error by a trial court when the alleged error was the erroneous

admission of evidence of the offense charged and when the judgment would not be supported

without that evidence. See, e.g., Bradshaw v. State, 40 S.W.3d 655, 660 (Tex. App.—San Antonio

2001, pet. ref’d.); Hargrove v. State, 40 S.W.3d 556, 558-59 (Tex. App.—Houston [14th Dist.]

2001, pet. ref’d). Often, this conclusion has been reached when the crime to which the defendant

                                                  6
pleaded guilty to is drug possession and when the allegedly improper ruling is the admission of

evidence of the drugs seized. See Bradshaw, 40 S.W.3d at 660 (concluding that appellate court must

hear merits of appeal because judgment of guilt of crime of possession of marijuana was not

independent of trial court’s ruling on motion to suppress evidence of marijuana found at Bradshaw’s

house); Hargrove v. State, 40 S.W.3d at 558-59 (concluding that plea was not independent of ruling

on motion to suppress because there would have been no case had trial court agreed to suppress

evidence of drug possession). In these cases, the allegedly erroneous rulings were not independent

of the judgments because the admission of the evidence established at least one of the elements of

the crimes alleged and because there would be no evidence of criminal activity if the

evidence had been suppressed. Stated differently, the judgments would not have been supported

without the evidence.

               However, courts have held that when there is no direct nexus between the alleged

error and the judgment, defendants waive their right to appeal the alleged error by entering a plea of

guilty or nolo contendere. See Ramirez v. State, 89 S.W.3d 222, 232 (Tex. App.—Corpus Christi

2002, no pet.) (concluding that Ramirez waived right to complain about State’s failure to produce

evidence that investigators had found no medical proof that Ramirez had sexually

penetrated victim because lack of evidence of penetration had no nexus to guilt or innocence of

offense charged, which was aggravated sexual assault by contact); Fountain v. State, 79 S.W.3d 72,

74 (Tex. App.—Beaumont 2002, no pet.) (holding that appellant waived right to appeal ruling on

motion to suppress evidence under Young; court noted that it was unclear from record what evidence

Fountain wanted suppressed but ultimately concluded that judgment “was rendered on the



                                                  7
independent” “testimony of Deputy Paske,” which was admissible); see also Guidry, 177 S.W.3d

at 93-94 (holding that appellant waived right to appeal on ground that his counsel was ineffective

during plea bargain process because there was no nexus between behavior complained of and

Guidry’s decision to plead guilty several weeks after allegedly ineffective assistance).

               For the reasons that follow, we believe that Kennedy’s adjudication of guilt was

independent of and not supported by the district court’s decision to deny his motion to suppress the

evidence seized from his property and further conclude that the judgment would have been supported

without the disputed evidence. See Hargrove, 40 S.W.3d at 558 (reasoning that when determining

if plea is independent of error, court must consider “nature of the issue upon which the trial court

ruled”). As a result of the issuance of the search warrant, the State recovered the following items

from Kennedy’s property1: ammunition, an “AK-47 semi-automatic assault rifle,” another semi-

automatic rifle, two semi-automatic handguns, a shotgun, a handgun, a flare gun, a safe

containing ammunition, a box containing ammunition, a kevlar helmet, bullet-proof vests, and a

metal plated wall.

               Unlike other cases in which appellate courts have addressed the merits of an appeal

by an individual who has pleaded guilty to a crime but asserted that the trial court erred by not

suppressing certain evidence, none of the items recovered from Kennedy’s home have any bearing




       1
         The State also recovered a gun cleaning kit, two binders containing paperwork relating to
various weapons and body armor, some of Kennedy’s notes and paperwork, and Kennedy’s passport;
however prior to the suppression hearing, the State elected not to try to admit those items. Moreover,
although the district court denied Kennedy’s motion to suppress in most respects, it did suppress gas
masks and filters recovered from Kennedy’s property after concluding that those items were outside
the scope of the search warrant.

                                                  8
on any of the elements of the offense Kennedy pleaded guilty to and do not on their own serve to

establish his guilt for the crime alleged. As discussed previously, Kennedy was charged with the

crime of aggravated assault of a police officer. To establish Kennedy’s guilt, the State was required

to prove that Kennedy “intentionally or knowingly” threatened Kunz “with imminent bodily injury,”

Tex. Penal Code Ann. § 22.01(a)(2), knowing that Kunz was “a public servant,” id. § 22.02(b)(2)(B).

Further, the State was required to prove that Kennedy committed the offense while using or

exhibiting “a deadly weapon during the commission of the assault,” id. § 22.02(a)(2), and while

Kunz was “lawfully discharging” his official duty, id. § 22.02(b)(2)(B).

               None of the seized items was used during the crime, nor were the items found at the

crime scene. Further, none of the items helped establish any of the elements of the offense. They

do not establish Kennedy’s mental state on the night of the shooting or establish whether he

intentionally or knowingly assaulted Kunz. The items also have no bearing on whether Kennedy

knew that Kunz was a police officer or whether Kunz was lawfully performing one of his official

duties when he was assaulted. Finally, the items do not help establish whether Kennedy was using

a deadly weapon on the night of the shooting.

               The elements of the offense in question were established by the evidence collected

from the crime scene, by the testimony of Kunz, and by the admission of a video recording made by

a camera mounted inside Kunz’s patrol car. This evidence was all admissible. Kunz testified that

in March 2005, he observed Kennedy speeding on IH-35. In response, Kunz activated his emergency

lights and followed the vehicle. After Kunz activated the lights, Kennedy moved his car to the left

side of the highway and stopped his car next to a concrete barrier separating the northbound and

southbound lanes. The video confirmed that Kunz did activate his emergency lights and did pull

                                                 9
Kennedy over.

                Kunz further testified that after both cars had stopped, he exited his patrol car and

approached Kennedy’s vehicle. Upon arrival, Kunz asked to see Kennedy’s driver’s license and

proof of insurance. According to Kunz, rather than complying with this request, Kennedy reached

down, pulled out a handgun, and pointed it at Kunz. After seeing the weapon, Kunz immediately

took cover behind his patrol car. Although Kennedy disputes that he fired the first shot, what is not

in dispute is that a shoot-out ensued and that Kennedy shot several rounds of bullets from his

handgun at Kunz. Kunz testified that after Kenendy had fired several shots from his handgun,

Kennedy switched weapons and continued shooting at Kunz and the patrol car with a rifle. In

addition, Kunz testified that Kennedy shot approximately 30 rounds from the rifle.

                The video confirmed that Kunz approached Kennedy’s car and that Kunz informed

Kennedy why he had been pulled over and asked Kennedy to produce his license and proof of

insurance. The video also demonstrated that Kunz was wearing a police uniform during the stop.

Further, the video confirmed that shortly after Kunz approached the car, both Kunz and Kennedy

began shooting at one another. Additionally, the video revealed that Kennedy fired numerous shots

at Kunz and then switched weapons and that after switching weapons, Kennedy stood in the doorway

of his car and continued shooting.

                In addition to the preceding evidence, other witnesses also testified and confirmed

that the weapons described by Kunz were recovered from the scene of the shooting. Further, these

witnesses testified regarding the numerous bullet fragments that were recovered from Kunz’s patrol

car, which Kunz took cover behind during the shooting, and from the area immediately surrounding

where the shooting took place.

                                                 10
               For the reasons stated, we conclude that Kennedy waived the first four issues of his

appeal by pleading guilty because his conviction was rendered independent of and not supported by

the error allegedly committed by the district court.


Rebuttal Evidence

               In his final issue on appeal, Kennedy asserts that the district court erred by allowing

the State to make arguments that exceeded the scope of permissible rebuttal argument during the

punishment hearing by alluding to information that was not in the record and by making arguments

that were not responsive to Kennedy’s closing argument. In particular, Kennedy contends that after

the State and the defense had rested their cases, the State impermissibly asserted during its closing

argument its contention that Kennedy had fired the first shot. The allegedly improper argument

occurred immediately after the State played a modified version of the videotape recording of the

shooting. The modifications included magnification and other enhancements to highlight certain

portions of the videotape. The relevant portions of the exchange are as follows:


       [State]: And there’s several showings of this. The first here is in real time.

       (Portion of State’s P-109 is played)

       [State]: Look, I want you to study who did shoot first.

       (Portion of State’s P-109 is played)

       [State]: Now we have got a shorter version, Judge, that is played at half speed.

       (Portion of State’s P-109 is played)

       [State]: And there’s some demarcations if you look inside the car just to the left of
       the driver’s head. When the officer begins his retreat, you will see a bright flash


                                                 11
       lasting for only a single video frame.

       [Defense]: Your Honor, may we approach, briefly?

       [The Court]: You may.

       (Video stopped)

       (At the bench, on the record)

       [Defense]: Your Honor, we would object that counsel has the obligation of fully
       opening. This is not in response to anything that - - we certainly haven’t suggested
       that Officer Kunz shot first or second or whatever. This is not - - this is not an issue
       that was litigated in this litigation.
               We both - - we have got - - we have experts which we - - you know, by the
       kazoo about who fired the first shot. This is not fair rebuttal. Your Honor. It goes
       to a matter that’s not an issue. It was never brought up in the case in chief and it was
       not brought up in the punishment proceedings by either side.
               This is an attempt to use his advantage of being able to close on top to
       respond to something that is not responsive and that is not fair rebuttal, Your Honor.

       [State]: Judge, I believe I am responding. He said that Officer Kunz could have been
       killed if [Kennedy] had really wanted to kill him.

       [The Court]: Objection overruled.


(Emphasis added.)

               Kennedy asserts that argument concerning who shot first was improper because he

made no assertion that Kunz had fired first. Moreover, Kennedy asserts that arguing that he shot first

was not an appropriate response to the evidence he presented, which indicated that he might have

been attempting to induce the officer to shoot him. In other words, he argues that his evidence

demonstrating that he was seeking to provoke a response from law enforcement does not bear on

who shot first. Finally, Kennedy contends that because the issue of who initiated the shooting had

not been argued during the State’s case-in-chief, he did not introduce his expert report stating that

                                                 12
Kunz had actually fired first and further contends that he was then prohibited from introducing the

report in response to the State’s accusation.2

               In making his assertion that the State’s argument was improper, Kennedy relies on

cases defining limitations on closing arguments during jury trials and does not refer to cases

concerning the propriety of closing arguments made during bench trials. For the sake of argument,

we will assume that the same limitations apply to bench trials. To be proper, closing argument

must fall within one of the following permissible categories: “(1) summation of the evidence;

(2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea

for law enforcement.” Primes v. State, 154 S.W.3d 813, 814 (Tex. App.—Fort Worth 2004, no pet.).

Any argument that exceeds the boundaries of the permissible categories is error, but it is only

reversible error if, “in light of the record as a whole, the argument is extreme or manifestly improper,

violative of a mandatory statute or injects new facts, harmful to the accused, into the trial.”

Felder v. State, 848 S.W.2d 85, 91 (Tex. Crim. App. 1992).

               For the reasons that follow, we believe that the State’s argument appropriately falls

into the first three categories. First, during the punishment hearing, Kennedy alluded to the idea that

he had not fired the first shot, and the State’s argument was, therefore, an answer to that theory. In

particular, the following exchange occurred while Kennedy was cross-examining Kunz:



       [Defense]: My understanding is that you actually saw the barrel of the weapon.


       2
          Although Kennedy was not allowed to have an additional argument to respond to the State’s
allegedly improper closing argument, he was allowed to introduce his expert report into the record
as a bill of exception.

                                                  13
       [Kunz]: Yes.

       [Defense]: That you actually described looking directly into the black hole of the
       weapon.

       [Kunz]: Yes, Sir.

       [Defense]: Had Mr. Kennedy squeezed off a round at that point, while you were
       looking directly into the black hole of the weapon you probably wouldn’t be here
       today.


               Kennedy further alluded to this possibility when questioning Kunz regarding a report

that he filled out after the shooting. In particular, Kennedy insinuated that Kunz drew his weapon

and fired his handgun before he heard any gun shots, implying that Kunz fired first. The relevant

portion of the exchange provides as follows:


       [Defense]: And that’s on Defendant’s Exhibit P-2. On Defendant’s Exhibit P-1,
       which was the other statement you gave that same day, let me ask you if you would
       look at that first page of your narrative.

       [Kunz]: Uh-huh.

       [Defense]: You state, “I then ran” - - this is towards the bottom of the third
       paragraph. “I then ran for my life towards my vehicle on to the passenger’s side and
       to the rear passenger’s corner.” Is that correct?

       [Kunz]: I believe that is correct.

       [Defense]: And then it follows and you make this statement . . . “As I was running
       between my patrol car and the suspect’s vehicle I did not hear any gun shots coming
       from the suspect’s vehicle.”

       [Kunz]: Yes.

       ...

       [Defense]: And that was true, was it not? You didn’t hear any gunshots coming from

                                                14
        the suspect’s vehicle as you ran from his vehicle to your vehicle?

        [Kunz]: As I recall I do not remember hearing the gunshots.

        [Defense]: In both the report that you typed . . . and the statement of fact witnessed
        and typed and signed by you by the Texas Rangers . . . there is no mention - - when
        you say “I ran for my life towards my vehicle,” there is no mention that you reached
        for your weapon almost immediately after leaving the side of Mr. Kennedy’s vehicle,
        is there?

        [Kunz]: As I recalled at the time, I didn’t remember doing that.

        [Defense]: In both [reports] . . . there is no mention that you drew your weapon as
        you ran between the two vehicles.

        [Kunz]: Again, when I was making the statement I did not recall drawing my weapon
        at that time.

        [Defense]: Officer, in both [reports] . . . you make no mention of the fact that shortly
        after you departed Mr. Kennedy’s vehicle before you arrived at your vehicle you
        stopped, turned towards his vehicle, and discharged your weapon. There is no
        mention of that, is there?

        [Kunz]: There is no mention because at that time I did not recall doing that.

        ...

        [Defense]: But having reviewed the video even days after the events you do realize
        that with respect to those matters I have described, that is the fact that you actually
        fired as you departed his vehicle, those [statements] I guess would not be certainly
        inconsistent or inaccurate, would they not?


                 Second, the modified videotape and the State’s argument concerning the videotape

constituted a summation of evidence that had previously been admitted. On the day before the

modified tape was played for the district court, the entire original and unaltered videotape was played

for the court.

                 Finally, the State’s argument would also qualify as a reasonable deduction from the

                                                  15
relevant evidence presented at trial. The State introduced undisputed evidence that Kennedy pointed

a gun at Kunz shortly after Kunz pulled Kennedy over for a traffic violation, that Kennedy fired

repeatedly at Kunz and his patrol car, and that Kennedy switched guns, got out of his car, and

continued firing at Kunz. In light of the preceding, it was reasonable for the State to deduce and

argue that Kennedy fired the first shot.

               Because the State’s argument falls within the permissible types of closing arguments,

the district court did not err by allowing it.       Accordingly, we overrule Kennedy’s fifth

issue on appeal.


                                           CONCLUSION

               Having concluded that Kennedy waived his first four issues and having overruled

Kennedy’s fifth issue on appeal, we affirm the judgment of the district court.



                                             __________________________________________

                                             David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: August 13, 2008

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