Keith Wylie Bowman v. State

CourtCourt of Appeals of Texas
DecidedFebruary 5, 2015
Docket05-13-01742-CR
StatusPublished

This text of Keith Wylie Bowman v. State (Keith Wylie Bowman 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
Keith Wylie Bowman v. State, (Tex. Ct. App. 2015).

Opinion

VACATED in part; Affirmed as Modified in part; Opinion Filed February 5, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01741-CR No. 05-13-01742-CR No. 05-13-01743-CR

KEITH WYLIE BOWMAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-10-35883-W, F-10-35927-W, F-10-35928-W

MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Stoddart

Keith Wylie Bowman appeals the trial court’s judgments revoking community

supervision and adjudicating guilt in three aggravated robbery cases. Bowman entered open

pleas of guilty in all three cases. The trial court found Bowman guilty in cause number F-10-

35927-W, imposed a $2,000 fine and sentenced him to ten years in prison. Within 180 days, the

trial court granted Bowman’s motion for shock community supervision and placed him on

community supervision for ten years. The trial court deferred adjudication in the other two cases,

placed Bowman on community supervision for ten years and assessed fines of $2,000 in each

case.

Following Bowman’s arrest in November 2013, the State filed motions to revoke in the first case and to adjudicate guilt in the other two cases. After a hearing, the trial court revoked

Bowman’s community supervision in the first case and sentenced him to ten years in prison and

a $2,000 fine. The trial court also adjudicated guilt in each of the other two cases and sentenced

Bowman to twenty years’ confinement to be served concurrently with his ten year sentence.

For reasons set out below, in cause number F-10-35927-W, we vacate the judgment

revoking community supervision and the order placing Bowman on shock community

supervision and reinstate the sentence in the trial court’s original judgment. In the other two

cases, we modify the trial court’s judgments and affirm the judgments as modified.

Before analyzing the merits of Bowman’s issues on appeal, we must address the shock

community supervision case, cause number F-10-35927-W. In that case, Bowman pleaded guilty

to aggravated robbery and was convicted of that offense. See TEX. PENAL CODE ANN. § 29.03

(West 2011). Aggravated robbery is a “section 3g offense.” TEX. CODE CRIM. PROC. ANN. art.

42.12 § 3g(a)(1)(F) (West Supp. 2014). A person convicted of aggravated robbery is not eligible

for judge-ordered community supervision. Id. Under article 42.12 § 6(a)(1), a person who is not

eligible for regular community supervision is not eligible for shock community supervision.

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 6(a)(1); State v. Dunbar, 297 S.W.3d 777, 780–81

(Tex. Crim. App. 2009); see also State v. Posey, 330 S.W.3d 311, 315 (Tex. Crim. App. 2011)

(“We hold that a trial judge may not grant shock probation unless the defendant is eligible for

judge-ordered community supervision.”). Thus, Bowman was improperly placed on shock

community supervision after he was convicted of a section 3g offense. Accordingly, we vacate

the trial court’s order placing Bowman on shock community supervision and the judgment

revoking community supervision in cause number F-10-35927-W. We reinstate the sentence in

the trial court’s original judgment in that case.

In the two deferred adjudication cases, the record shows Bowman pleaded true to

–2– violating four conditions of community supervision, including possession of a firearm while on

community supervision. The arresting officer testified he stopped Bowman for traffic violations

and searched the car with Bowman’s consent. The officer found a crack pipe and other

paraphernalia in the car and arrested Bowman. The officer testified he seized and searched

Bowman’s cellphone incident to the arrest and found several pictures of Bowman posing with

firearms. The State offered photographs of the cellphone pictures found on Bowman’s cellphone.

Defense counsel objected to the admission of the photographs, arguing they were the fruit of an

unlawful search under the Fourth Amendment. The trial court overruled the objection and

admitted the photographs.

In his first issue, Bowman complains that the trial court erred in admitting the

photographs of pictures obtained from his cellphone into evidence. In light of recent Supreme

Court authority, the State concedes error, but argues the error was harmless.

While Bowman’s cases were pending on direct appeal, the United States Supreme Court

decided Riley v. California, 134 S. Ct. 2473 (2014). Bowman’s convictions are not final,

therefore Riley applies retroactively. Griffith v. Kentucky, 479 U.S. 314, 328 (1987); Ex parte

Keith, 202 S.W.3d 767, 769 (Tex. Crim. App. 2006) (citing Teague v. Lane, 489 U.S. 288, 310

(1989)). In Riley, the Supreme Court held that a search of the contents of a cellphone did not fall

within any well-settled exception to the Fourth Amendment’s warrant requirement. See Riley,

134 S. Ct. at 2477. Although searches incident to arrest are reasonable in limited

circumstances—to protect the officer’s safety or to prevent the destruction of evidence—the

Court held searching the data in a cellphone did not further those interests; arrestees could not

use cellphone data as a weapon and seizing a cellphone was sufficient to prevent destruction of

evidence contained in the data. See id. at 2478. Thus, the Supreme Court held a warrantless

search of a cellphone’s contents was not justified as a search incident to arrest. Id. at 2478–79.

–3– For Constitutional errors, we “must reverse a judgment of conviction or punishment

unless [we] determine[] beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.” TEX. R. APP. P. 44.2(a). In performing this analysis, we consider the

entire record and a number of nonexclusive factors, such as the nature of the error, the extent it

was emphasized by the State, the probable implications of the error, and the weight a juror or

fact-finder would probably place on the error. See Snowden v. State, 353 S.W.3d 815, 821–22

(Tex. Crim. App. 2011). “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.’” Snowden, 353 S.W.3d at 822 (quoting

TEX. R. APP. P. 44.2(a)). Constitutional error does not contribute to the conviction or

punishment if the conviction and punishment would have been the same even if the erroneous

evidence had not been admitted. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007).

The record indicates Bowman pleaded true to the allegations of possession of a firearm

while on community supervision, possession of drug paraphernalia, testing positive for a number

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Related

Griffith v. Kentucky
479 U.S. 314 (Supreme Court, 1987)
Teague v. Lane
489 U.S. 288 (Supreme Court, 1989)
Asberry v. State
813 S.W.2d 526 (Court of Appeals of Texas, 1991)
Ex Parte Keith
202 S.W.3d 767 (Court of Criminal Appeals of Texas, 2006)
French v. State
830 S.W.2d 607 (Court of Criminal Appeals of Texas, 1992)
Clay v. State
240 S.W.3d 895 (Court of Criminal Appeals of Texas, 2007)
State v. Dunbar
297 S.W.3d 777 (Court of Criminal Appeals of Texas, 2009)
State v. Posey
330 S.W.3d 311 (Court of Criminal Appeals of Texas, 2011)
Riley v. Cal. United States
134 S. Ct. 2473 (Supreme Court, 2014)
Snowden, Rion Pheal
353 S.W.3d 815 (Court of Criminal Appeals of Texas, 2011)

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