Dismukes v. State

919 S.W.2d 887, 1996 Tex. App. LEXIS 1462, 1996 WL 169552
CourtCourt of Appeals of Texas
DecidedApril 10, 1996
DocketNo. 09-93-307 CR
StatusPublished
Cited by2 cases

This text of 919 S.W.2d 887 (Dismukes v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dismukes v. State, 919 S.W.2d 887, 1996 Tex. App. LEXIS 1462, 1996 WL 169552 (Tex. Ct. App. 1996).

Opinions

OPINION

WALKER, Chief Justice.

This is an appeal from a conviction for the felony offense of Murder. Following its verdict, the jury further assessed appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of sixteen (16) years. Appellant raises seventeen points of error for our consideration. None of said points of error complain of the lack of sufficient evidence to sustain the conviction. We will group points of error for discussion when appropriate.

Point of error one reads, “The trial court erred in overruling Appellant’s Motion to Suppress Evidence.” Points of error two through sixteen each complain of the trial court’s overruling of trial objections to specific items of evidence tendered by the State. The record reflects that all of said evidentia-ry items complained of on appeal were obtained by the authorities via search warrants. At the outset, we feel it necessary to discuss the scope of the instant appeal in hopes of making clear to the parties what we are reviewing and how we are reviewing it.

We observe initially that both appellant and the State refer in their respective briefs to written “Findings of Fact and Conclusions of Law” of the trial court. The file of the instant appeal reflects that this Court received a “Supplemental Transcript” on April 26,1994. On the same day the Clerk of this Court notified both parties by mail of the following:

The Supplemental Transcript (1 vol.) in the above styled and numbered cause was received this date and marked “Reed Apr 26, 1994,” but not filed. A Motion for Leave to File Supplemental Transcript must be filed before the Supplemental Transcript can be filed.

Our file in the instant case reflects no subsequent motion for leave to file the Supplemental Transcript was ever received. Therefore, the written findings of fact of the trial court are not a part of the appellate record and will not be considered by us for any purpose. Any mention or reliance on said written findings by the trial court in the appellate briefs will also be ignored by this Court.

Because the State’s brief raises the issue of waiver of appellate review of appellant’s points of error, we now focus our attention on what legal issues appellant preserved for our consideration. Aside from citations to cases, the only statutory or constitutional authority relied upon by appellant in his brief is the following:

Tex.Code Crim.Proc.Ann. art. 2.09 (Vernon Supp.1995)
Tex.Code Crim.Proc.Ann. art. 18.01(c) (Vernon Supp.1994)
Tex.Code Crim.Proc.Ann. art. 18.07 (Vernon 1977)
Tex.Code Crim.Proc.Ann. art. 38.23 (Vernon Supp.1994)
Tex. Const. art. I, § 9
U.S. Const. amend. IV

The transcript before us reflects only one written motion to suppress filed on appel[890]*890lant’s behalf by an attorney who ultimately did not represent appellant at trial. The pertinent portions of said written motion are set out as follows:

COMES NOW GEORGE ANDREW DIS-MUKES, the Defendant herein, and pursuant to the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution; Article I, Sections 10 and 19 of the Texas Constitution; and Articles 38.22 and 39.14 of the Texas Code of Criminal Procedure, respectfully moves the Court to suppress any and all oral and/or written statements allegedly made by the Defendant in connection with this cause and any and all tangible objects seized pursuant to any search of the Defendant, his residence, his vehicle or any vehicle in his possession or control and as a basis for said Motion would show the Court as follows:
I.
On or about December 24, 1991, the Defendant was arrested and/or detained by certain officers for the alleged offense. In connection with the arrest and/or detention, certain physical evidence and oral statements of the Defendant were obtained in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article I, Sections 10 and 19 of the Texas Constitution; and Article 38.22 of the Texas Code of Criminal Procedure.

We have examined the statement of facts of the trial in order to determine the oral objections made by appellant to the State’s exhibits complained of in points of error two through sixteen. These objections range from the very general complaints that particular exhibits are the “product of an illegal search,” and are objectionable “pursuant to our Motion to Suppress,” to the arguably more specific objection that the search warrants and the affidavits were “invalid.” At the suppression hearing conducted on September 17, 1993, appellant’s trial counsel indicated that his complaint with regard to the search warrants was that the underlying affidavits lacked probable cause to support issuance of said warrants. In aid of our discussion of the scope of our review of the instant appeal, we reproduce portions of the colloquy involving the trial court, the State, and appellant’s trial counsel at the suppression hearing prior to beginning the testimony:

The Court: All right. How do we want to proceed, [Trial Counsel]?
[Trial Counsel]: Judge, primarily this concerns around the time of the seizure of the truck and the door from it. At that point in time on the evening of the 24th, Mr. Dismukes had not been charged and was not — he went into the police station, but it was not by virtue of a warrant. I can put him on to testify that he — items were taken from his person and the truck door was taken from him and he was not being held under a warrant at that time and then I think the burden shifts I believe to the State once I do that to show that they had probable cause to seize the items of clothing and the door.
* * ⅜ * * *
The Court: Okay. Of course [Trial Counsel] you’re not the first lawyer that has appeared for Mr. Dismukes as we all know.
[Trial Counsel]: Right.
The Court: In the past some months ago—
[Trial Counsel]: Uh-huh.
The Court: There was a discussion and I believe it was primarily with the previous attorney for Mr. Dismukes.
[Trial Counsel]: Yes, sir.
The Court: To the effect that certain matters would be litigated about the suppression and certain matters might not. For example, if I recall correctly, at one time it seems to me that there was an agreement between counsel and the Court that the probable cause for the arrest was not in issue. The probable cause to be detained was not in issue. But that the method of obtaining certain incriminating items from the pickup truck or from his person—
[Trial Counsel]: Right.
The Court: That those were the matters to be disputed.
[891]*891[Trial Counsel]: That’s correct.
The Court: Are we still able to limit the evidence?

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Bluebook (online)
919 S.W.2d 887, 1996 Tex. App. LEXIS 1462, 1996 WL 169552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dismukes-v-state-texapp-1996.