James Arthur Baxley v. State

• Court: Court of Appeals of Texas
• Decided: July 13, 2015
• Docket: 06-15-00095-CR
• Status: Published

Opinion

ACCEPTED 06-15-00095-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/13/2015 10:00:49 AM DEBBIE AUTREY CLERK

No. 06-15-00095-CR ____________________________________________ FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE 7/13/2015 10:00:49 AM DEBBIE AUTREY SIXTH COURT OF APPEALS Clerk AT TEXARKANA, TEXAS

____________________________________________

JAMES ARTHUR BAXLEY, Appellant

v.

THE STATE OF TEXAS, Appellee ____________________________________________

APPEAL FROM TH THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NO. 1424312 ____________________________________________

APPELLANT’S BRIEF ____________________________________________

Wade A. Forsman P.O. Box 918 Sulphur Springs, TX 75483-0918 903.689.4144, f. 903.689.7001 wade@forsmanlaw.com

Attorney for Appellant James Arthur Baxley

ORAL ARGUMENT REQUESTED

Appellant’s Brief IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all

parties to the trial court’s judgment and the names and addresses of all trial and

appellate counsel:

Appellant Appellant’s appellate counsel James Arthur Baxley Wade A. Forsman P.O. Box 918 Sulphur Springs, TX 75483-0918 903.689.4144 telephone 903.689.7001 facsimile wade@forsmanlaw.com

Appellant’s trial counsel Cynthia Braddy 1109 Main Street Commerce, TX 75428 903.243.3577 telephone

Appellee Appellee’s trial & appellate counsel The State of Texas Matthew Howard Harris Assistant District Attorney 8th Judicial District P.O. Box 882 (75483-0882) 114 Main Street Sulphur Springs, TX 75482 903.885.0641 telephone 903.885.0640 facsimile mharris@hopkinscountytx.org

Appellant’s Brief Page i TABLE OF CONTENTS

Identity of Parties and Counsel ……………………………………………………. i

Table of Contents ………………………………………………………………… ii

Index of Authorities ……………………………………………………………. iv

Statement of the Case …………………………………………………………….. 1

Issue Presented …………………………………………………………………... 2

POINT OF ERROR NO. 1: The trial court erred in crediting the testimony of Sergeant Mark Estes.

Statement of Facts ……………………………………………………………….. 2

I. The indictment………………………………………………………. 2

II. Testimony by Sergeant Mark Estes…………………………………. 3

A. Estes’s testimony during the hearing on Baxley’s Motion to Suppress his Arrest…………………………………. 3

B. Estes’s testimony at trial……………………………………… 5

III. Baxley convicted and sentenced; Baxley appeals…………………… 7

A. The jury renders a verdict of guilty and assesses punishment at two years TDCJ, with no fine………………… 7

B. The trial court sentences Baxley…………………………….. 8

C. Baxley appeals………………………………………………. 8

Summary of the Argument………………………………………………………. 8

Argument …………………………………………………………………............ 8 Appellant’s Brief Page ii Prayer ………………………………………………………………………….. 10

Certificate of Word Count ………………………………………………………. 11

Certificate of Service……………………………………………………………...11

Appellant’s Brief Page iii INDEX OF AUTHORITIES

Cases

Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013)………………………………… 8, 9

Valtierra v. State, 310 S.W.3d. 442 (Tex. Crim. App. 2010)………………………………… 9

Court Rules

Tex. R. App. P. 9.4(i)(3) ………………………………………………………… 11

TEX. R. APP. P. 38(a) ……………………………………………………………… i

Appellant’s Brief Page iv No. 06-15-00095-CR ____________________________________________

IN THE SIXTH COURT OF APPEALS AT TEXARKANA, TEXAS

THE STATE OF TEXAS, Appellee

APPEAL FROM TH THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS TRIAL COURT NO. 1424312 ____________________________________________

APPELLANT’S BRIEF ____________________________________________

STATEMENT OF THE CASE

This is an appeal from a conviction for possession of less than one gram of a controlled substance (methamphetamine), a state jail felony, for which the trial court sentenced Appellant to the maximum – namely, two (2) years confinement in the State Jail Division of the Texas Department of Criminal Justice (“TDCJ”).

Appellant’s Brief Page 1 ISSUES PRESENTED

POINT OF ERROR NO. 1: The trial court erred in crediting the testimony of Sergeant Mark Estes.

STATEMENT OF FACTS

I. The indictment

On November 10, 2014, an indictment was filed against James Arthur Baxley

(Vol. 1; p. 6). The indictment alleges a third-degree felony (Vol. 2; p. 5; l. 17-19).

The indictment states that on or about September 23, 2014 Baxley possessed

methamphetamine in an amount of less than one gram in a drug-free zone (Vol. 2;

p. 4; l. 10-14).

This indictment was amended twice. The State filed its Motion to Amend

Indictment on March 19, 2015 (Vol. 1; p. 23), and the trial court granted the motion

on March 20, 2015 (Vol. 1; p. 26). The State filed a second Motion to Amend

Indictment (Vol. 1; p. 76) on April 28, 2015, and the trial court granted the motion

on May 21, 2015 (Vol. 1; p. 75). The result was that minutes before the

commencement of voir dire, which took place on June 1, 2015, Baxley pleaded “not

guilty” to a straightforward possession case, a state jail felony (Vol. 5; p. 8; l. 9).

Appellant’s Brief Page 2 II. Testimony by Sergeant Mark Estes

On September 23, 2014 the Sulphur Springs Police Department (“SSPD”)

employed an individual named Mark Estes (Vol. 5; p. 167; l. 12-15). He held the

rank of Sergeant. Id.

In an effort to expedite the proceedings, the trial court stated that it was aware

that “Sergeant Mark Estes is employed by the Sulphur Springs Police Department

and assigned to the Special Crimes Unit and has been a police officer for many

years” (Vol. 5; p. 167; l. 12-15).

Estes testified on two separate occasions in this case. The first occasion was

during a hearing that the trial court held on Baxley’s motion to suppress his arrest.

The second occasion was during the trial itself. Each is discussed below.

A. Estes’s testimony during the hearing on Baxley’s Motion to Suppress his Arrest

This hearing is found in Volume 5. It starts on page 166, line 15, and it

continues to page 175, line 22. The trial court described the issue it was being asked

to decide this way:

We're here based upon an oral motion to suppress raised by Ms. Braddy this morning. And the crux of it, as I understand, is that Mr. Estes arrested the defendant based upon two outstanding traffic warrants, slash, capias pro fines. And again I use that warrant, slash, because Ms. Braddy [i.e., Baxley’s trial counsel] makes a -- to her, an important legal distinction between the two, one of which would justify an arrest

Appellant’s Brief Page 3 and one -- and another set of circumstances might not, according to Ms. Braddy (Vol. 5; p. 167; l. 2-10).

Estes testified that on September 23, 2014 he learned that Baxley had two

arrest warrants (Vol. 5; p. 169; l. 6). Estes believed these two warrants had been

issued through a municipal judge (Vol. 5; p. 203; l. 7-8 & 16-18). Explained Estes,

“Some of the patrol guys [in SSPD] actually get the city warrant list from the

municipal court on a random basis” (Vol. 5; p. 169; l. 9-11). Estes testified that he

had reviewed this warrant list because, said Estes, this warrant list just so happened

to be “on the briefing table in the squad room” (Vol. 5; p. 169; l. 11-12).

These two warrants are wholly unrelated to the matters contained in the

indictment. Instead, the two warrants were for traffic violations – specifically, an

expired operator's license, and a failure to control speed. (Vol. 5; p. 171; l. 16-21).

Estes testified that based on this warrant list he and another SSPD officer

drove to where Baxley lived (Vol. 5; p. 168; l. 15). Estes did not actually have in his

possession a “physical copy of the warrant” when he drove to Baxley’s house (Vol.

5; p. 168; l. 21-23). Instead, Estes “confirmed the warrant” through SSPD dispatch

(Vol. 5; p. 168; l. 19), and once at Baxley’s house he saw Baxley in the front yard

(Vol. 5; p. 168; l. 20).

The trial court overruled the motion to suppress. In explaining its ruling the

trial court said, “[T]he bottom line is, did the officer have a good-faith basis for Appellant’s Brief Page 4 making the arrest based on the outstanding warrant? The Court will find that he

certainly was legally authorized to do so, and the defendant's motion to suppress the

arrest is denied” (Vol. 5; p. 175; l. 17-22).

B. Estes’s testimony at trial

This testimony is also found in Volume 5. It starts on page 180, line 17, and

it continues to page 218, line 21. What follows is Estes’s testimony.

SSPD has employed Estes for 14 years, the last 3 of which it has assigned

Estes to the “Special Crimes Unit” or “SCU” (Vol. 5; p. 185; l. 4-5). The job duties

of SCU are almost entirely – Estes says “99 percent” (Vol. 5; p. 185; l. 8) -- related

to drug offenses. Estes described SCU’s duties this way:

Normally we work undercover CIs -- confidential informants -- that purchase narcotics for us from suspects or people who are distributing narcotics.··And that's our job, is to try to shut that down or slow that down by using confidential informants.··Most of the time that is our normal duties….. (Vol. 5; p. 197; l. 16-22).

On September 23, 2014 Estes learned that Baxley had “two active traffic

warrants” that called for his arrest (Vol. 5; p. 181; l. 13-14). Armed with this

information Estes went to where Baxley “was last known to reside at” (Vol. 5; p.

181; l. 17-18).

Estes drove to Baxley’s residence in an unmarked car (Vol. 5; p. 182; l. 20-

21). The car had no video or audio equipment (Vol. 5; p. 182; l. 22-24 & p. 206; l.

Appellant’s Brief Page 5 14). The car had no lights or siren (Vol. 5; p. 182; l. 18-20). The car had no field kit

to test for illegal narcotics (Vol. 5; p. 209; l. 22-23 & P. 210; l. 5-7).

According to the two traffic warrants from a municipal judge, the place where

Baxley resided was 204 Whitworth. See Defendant’s Exs. Nos. 1 and 2 (Vol. 7). 1

However, Estes did not drive to 204 Whitworth (Vol. 5; p. 204; l. 18-25). Indeed,

Estes testified that had no intention of driving to 204 Whitworth (Vol. 5; p. 207; l.

9-12).

Instead, Estes drove to a different location – namely, 1125 Elm, where he,

Estes, believed Baxley lived (Vol. 5; p. 204; l. 24-25). Estes turned out to be right.

Estes observed Baxley at that location in the front yard “working on a car” (Vol. 5;

p. 181; l. 17-19).

As previously noted, Estes did not actually have a “physical copy of the

warrant” when he drove to Baxley’s house (Vol. 5; p. 168; l. 21-23). Instead, Estes

radioed dispatch and confirmed that the warrants were good and that Baxley was

still showing wanted (Vo. 5; p. 182; 14-16).

Estes then “made contact” with Baxley (Vol. 5; p. 182; l. 17). Estes informed

Baxley, who was on his knees working on the driver’s side floorboard area of his

car, as to why he was there (Vol. 5; p. 183; l. 4-8). Estes observed Baxley going for

1 Defendant’s Exhibits 1 and 2 were admitted into evidence at Vol. 5; p. 204; l. 3-4. Appellant’s Brief Page 6 his wallet in his right pants pocket (Vol. 5; p. 183; l. 18-19). Estes told Baxley to

stand up, and when Baxley complied Estes cuffed him (Vol. 5; p. 183; l. 22-24).

Estes then went for the wallet that he had seen Baxley going for, and in the wallet

Estes found what he believed was methamphetamine. (Vol. 5; p. 184; l. 2-8 & p.

185; l. 20).

Estes did not field test the meth he believed he had found on Baxley. Instead,

Estes field tested what he had found on Baxley after his return to the police station

(Vol. 5; p. 205; l. 4-8).

III. Baxley convicted and sentenced; Baxley appeals

A. The jury renders a verdict of guilty and assesses punishment at two years TDCJ, with no fine.

On June 1, 2015, the jury returned the following verdict -- guilty of possession

of a controlled substance, namely methamphetamine, in an amount of less than one

gram as charged in the indictment (Vol. 5; p. 267; l. 9-12).

Baxley, by and through his trial counsel, had previously filed Defendant’s

Election as to Punishment (Vol. 1; p. 72). In that document Baxley elected for the

jury to assess punishment if convicted. See also Vol. 5; p. 8; l. 11-14, where the trial

court confirms that if there is a finding of guilt, then Baxley elects for that same jury

to assess punishment.

Appellant’s Brief Page 7 Accordingly, the jury assessed punishment on June 2, 2015 as follows --

confinement by the Texas Department of Criminal Justice for a term of two years

and no fine (Vol. 6; p. 46; l. 19-21).

B. The trial court sentences Baxley

On that same day, i.e., June 2, 2015, the trial court sentenced Baxley to two

years of confinement in the State Jail Division of the Texas Department of Criminal

Justice (Vol. 6; p. 50; l. 5-8). The trial court assessed restitution in the amount of

$180 (Vol. 6; p. 50; 16-18). The trial court assessed no fine (Vol. 6; p. 50; l. 9), and

it waived attorney fees and court costs (Vol. 6; p. 50; l. 9-15).

C. Baxley appeals

Baxley, by and through his trial attorney, filed a notice of appeal later that

same day. Notice of Appeal (Vol. 1; p. 110).

SUMMARY OF THE ARGUMENT

POINT OF ERROR NO. 1: The trial court erred in crediting the testimony of Sergeant Mark Estes.

ARGUMENT

This Court of Appeals reviews the trial court’s denial of a motion to suppress

under a bifurcated standard of review. With regard to the trial court’s factual

findings, the standard of review is abuse of discretion. With regard to the trial court’s

application of the law to the facts, the standard of review is de novo. Turrubiate v. Appellant’s Brief Page 8 State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)(citing Valtierra v. State, 310

S.W.3d. 442, 447-48 (Tex. Crim. App. 2010)).

It was error for the trial court to credit Estes’s testimony. The notion that Estes,

who was employed for three years in a work unit (SCU) that is devoted “99 percent”

to drug-related offenses, fortuitously happened to see Baxley’s name on a so-called

“warrant list” for two traffic violations, and then, just so happened to drive to an

address that is different from the address contained on this same “warrant list,” in an

unmarked car, and with no video or audio devices – curiously, Estes did not even

bother to take the warrant upon which he supposedly relies -- strains the credulity of

a reasonable person. Consider the following two exchanges:

Q. Okay. So is it your regular practice to take a look at the warrant list every day? A. I don't do it every day. I just happened to look at it that day and seen that he [i.e., Baxley] was wanted.

(Vol. 5; pp. 208-09; l. 25-3). …….

Q. And how much of your job would you say -- as of September 23, 2014, at that time frame, how much of your job consists of actually serving warrants? MR. HARRIS: Objection, Your Honor; relevance. THE COURT: Overruled. A. It just depends on case-by-case basis. Q.· (By Ms. Braddy)··So did you arrest everybody on the warrant list that day? A. No, ma'am.

Appellant’s Brief Page 9 Q. And how did -- you just decided to choose Mr. Baxley to go and arrest on these warrants? A. We were out and drove by his residence and seen him in the yard, and I had knowledge that he was wanted, so, yes, I stopped and made the arrest.

(Vol. 5; p. 198; l. 6-21). The record evidence like the foregoing can reveal one and

only one conclusion. Estes, an experienced police officer, used the two traffic

warrants from a municipal court as a pretext to go fishing – that is, to see if he could

hook Baxley. Estes succeeded. Estes caught his fish.

Maybe one can credit Estes’s creativity and resourcefulness. However, and as

happened here, law enforcement should not be allowed to evade the general rule

requiring that warrants be used.

PRAYER

WHEREFORE, premises considered, Appellant, James Arthur Baxley,

respectfully requests that the judgment of the trial court be reversed and remanded

for new trial, and/or for such other and further relief to which he may establish

himself entitled.

Respectfully submitted,

By: __/s/ Wade A. Forsman_ Wade A. Forsman State Bar No. 07264257 P.O. Box 918 Sulphur Springs, TX 75483-0918 903.689.4144 East Texas Appellant’s Brief Page 10 972.499.4004 Dallas/Fort Worth 903.689.7001 Facsimile wade@forsmanlaw.com

CERTIFICATE OF WORD COUNT

Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 2,636 words.

__/s/ Wade A. Forsman_ Wade A. Forsman

CERTIFICATE OF SERVICE

This is to certify that on July 13, 2015, I served a true and correct copy of the above and foregoing Appellant’s Brief by email on Matthew Howard Harris, Assistant District Attorney, at 114 Main Street, Sulphur Springs, Texas 75482.

Appellant’s Brief Page 11