Tony Dewayne Crayton v. State
Opinion
ACCEPTED 06-14-00208-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/13/2015 12:00:00 AM DEBBIE AUTREY CLERK
CAUSE NUMBER 06-14-00208-CR IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS SIXTH APPELLATE JUDICIAL DISTRICT OF TEXAS TEXARKANA, TEXAS AT TEXARKANA, TEXAS 7/13/2015 9:07:00 AM DEBBIE AUTREY Clerk
APPEAL FROM THE 8TH JUDICIAL DISTRICT OF HOPKINS COUNTY, TEXAS
Trial Cause No. 1323670
TONY DEWAYNE CRAYTON Appellant
V.
THE STATE OF TEXAS, Appellee
BRIEF FOR APPELLANT
Martin Braddy Attorney at Law SBN 00796240 121 Oak Ave., Suite A Sulphur Springs, Texas 75482 (903) 885-2040 (500) 885-2704 fax
1 IDENTITY OF PARTIES
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: Tony Dewayne Crayton Appellate and Trial Counsel Martin Braddy 121 Oak Avenue, Suite A Sulphur Springs, TX 75482 (903) 885-2040 (903) 500-2704 fax
APPELLEE: The State of Texas Honorable Will Ramsay District Attorney 8th Judicial District 110 Main Street Sulphur Springs, TX 75482 (903) 885-0641 (903) 885-0640 fax
TRIAL COURT: 8th Judicial District Court Hopkins County, Texas Judge Eddie Northcutt 118 Church St. Sulphur Springs, TX 75482 Phone: (903) 438-4022
2 TABLE OF CONTENTS
Table of Contents 3
Index of Authorities 4-7
Statement of the Case 7
Issues Presented 7
Statement of Facts 7-13
Summary of Argument 13-14
Argument 14
I. Trial Court Improperly Considered a Competency Report 14
II. Did the Trial Court Err in Overruling the Motion to 34
Suppress Evidence
Conclusion and Prayer 41
Certificate of Service 42
Word Count Certificate 43
3 INDEX OF AUTHORITIES
Cases
Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007) 33
Best v. State, 118 S.W.3d 857, 862 (Tex.App.-Fort Worth 33 2003, no pet.)
Bullcoming v. New Mexico, ––– U.S. ––––, ––––, 131 S.Ct. 18 2705, 2715, 180 L.Ed.2d 610 (2011)
Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) 13
Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 20 L.Ed.2d 705 (1967)
Cobb v. State, 95 S.W.3d 664, 666 (Tex.App.–Houston [1st 13 Dist.] 2002, no pet.) Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 16, 17, 18 L.Ed.2d 177 (2004)
Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006) 21
De La Paz v. State, 273 S.W.3d 671, 680 17 (Tex.Crim.App.2008)
Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 21 1438, 89 L.Ed.2d 674 (1986)
Douds v. State, 434 S.W.3d 842, 861-62 (Tex. App.—Houston 35 [14th Dist.] 2014), petition for discretionary review granted (Sept. 17, 2014)
33 Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005) George v. State, 20 S.W.3d 130, 140 (Tex. App.—Houston 29 [14th Dist.] 2000, pet. ref'd)
4 Gilbert v. State, 493 S.W.2d 783, 783 (Tex. Crim. App. 1973) 38
Gillenwaters v. State, 205 S.W.3d 534, 537 13 (Tex.Crim.App.2006)
Hensarling v. State, 829 S.W.2d 168, 170-71 (Tex. Crim. App. 28, 29 1992)
Howard v. State, 617 S.W.2d 191, 193 (Tex.Crim.App.1979) 34 (op. on reh'g) Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) 13, 14
Keen v. State, 626 S.W.2d 309, 313 (Tex. Crim. App. 1981 38 overruled on other grounds)
Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004) 33
Langham v. State, 305 S.W.3d 568, 576 (Tex.Crim.App.2010) 18
Lee v. State, 418 S.W.3d 892, 896 (Tex. App.—Houston [14th 17, 19 Dist.] 2013), petition for discretionary review refused (Mar. 12, 2014) McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. 33 denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003)
McNairy v. State, 835 S.W.2d 101, 106–07 36 (Tex.Crim.App.1991)
Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 18, 19 2527, 174 L.Ed.2d 314 (2009) Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 34 L.Ed.2d 343 (1979)
Ramirez v. State, 105 S.W.3d 730, 744 (Tex. App.—Austin 36 2003, no pet.)
5 Reynolds v. State, 506 S.W.2d 864, 864 (Tex. Crim. App. 38 1974)
Rickels v. State, 108 S.W.3d 900, 902 (Tex.Crim.App.2003) 13
Smith v. State, 297 S.W.3d 260, 277 (Tex. Crim. App. 2009) 20
State v. Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App. 34 1996)
State v. Stewart, 282 S.W.3d 729, 737 (Tex. App.—Austin 33 2009, no pet.)
Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005) 33
Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.2006) 17
Wood v. State, 299 S.W.3d 200, 208 (Tex. App.—Austin 17, 19 2009, pet. ref'd)
Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.2009) 33
United States v. Rubin, 474 F.2d 262, 268 (3d Cir.1973) 36
Statutes
Tex. Crim. Proc. Code Ann. § art. 18.04 (West) 38
Tex. Crim. Proc. Code Ann. § art. 38.23 (West) 34
Tex. Crim. Proc. Code Ann. § art. 46B (West) 16, 19, 23
Tex. R. App. Proc. 33.1(a) 13
Tex. R. App. Proc. 44.2 20
Tex. R. Evid. Rule 201 (b) 14, 15
6 Tex. R. Evid. Rule 605 28
U.S. Const. amend. IV 33
STATEMENT OF THE CASE
Appellant was indicted in Cause Number 1323670 for Murder. Appellant
pled ―Not Guilty‖ and waived his right to a jury trial. The trial court found
Appellant guilty and set the punishment at fifty years in the Institutional Division
of the Texas Department of Criminal Justice and no fine. The trial court certified
Appellant‘s right to appeal and Appellant timely filed a Notice of Appeal.
ISSUES PRESENTED
Did the trial court err in considering the competency evaluation report filed
by Dr. Michael Pittman?
Did the trial court err in denying Appellant‘s Motion to Suppress: Seizure
Without Warrant?
Did the trial court err in denying Appellant‘s Motion to Suppress based on
an improperly executed search warrant?
STATEMENT OF FACTS
Appellant and Tyler Crayton were married in August 2008 after dating the
previous two years. (R.R. Vol. 7 pg. 44-5). Their son, Preston, was born in July
7 2007. (R.R. Vol. 7 pg. 63).
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ACCEPTED 06-14-00208-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/13/2015 12:00:00 AM DEBBIE AUTREY CLERK
CAUSE NUMBER 06-14-00208-CR IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS SIXTH APPELLATE JUDICIAL DISTRICT OF TEXAS TEXARKANA, TEXAS AT TEXARKANA, TEXAS 7/13/2015 9:07:00 AM DEBBIE AUTREY Clerk
APPEAL FROM THE 8TH JUDICIAL DISTRICT OF HOPKINS COUNTY, TEXAS
Trial Cause No. 1323670
TONY DEWAYNE CRAYTON Appellant
V.
THE STATE OF TEXAS, Appellee
BRIEF FOR APPELLANT
Martin Braddy Attorney at Law SBN 00796240 121 Oak Ave., Suite A Sulphur Springs, Texas 75482 (903) 885-2040 (500) 885-2704 fax
1 IDENTITY OF PARTIES
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: Tony Dewayne Crayton Appellate and Trial Counsel Martin Braddy 121 Oak Avenue, Suite A Sulphur Springs, TX 75482 (903) 885-2040 (903) 500-2704 fax
APPELLEE: The State of Texas Honorable Will Ramsay District Attorney 8th Judicial District 110 Main Street Sulphur Springs, TX 75482 (903) 885-0641 (903) 885-0640 fax
TRIAL COURT: 8th Judicial District Court Hopkins County, Texas Judge Eddie Northcutt 118 Church St. Sulphur Springs, TX 75482 Phone: (903) 438-4022
2 TABLE OF CONTENTS
Table of Contents 3
Index of Authorities 4-7
Statement of the Case 7
Issues Presented 7
Statement of Facts 7-13
Summary of Argument 13-14
Argument 14
I. Trial Court Improperly Considered a Competency Report 14
II. Did the Trial Court Err in Overruling the Motion to 34
Suppress Evidence
Conclusion and Prayer 41
Certificate of Service 42
Word Count Certificate 43
3 INDEX OF AUTHORITIES
Cases
Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007) 33
Best v. State, 118 S.W.3d 857, 862 (Tex.App.-Fort Worth 33 2003, no pet.)
Bullcoming v. New Mexico, ––– U.S. ––––, ––––, 131 S.Ct. 18 2705, 2715, 180 L.Ed.2d 610 (2011)
Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) 13
Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 20 L.Ed.2d 705 (1967)
Cobb v. State, 95 S.W.3d 664, 666 (Tex.App.–Houston [1st 13 Dist.] 2002, no pet.) Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 16, 17, 18 L.Ed.2d 177 (2004)
Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006) 21
De La Paz v. State, 273 S.W.3d 671, 680 17 (Tex.Crim.App.2008)
Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 21 1438, 89 L.Ed.2d 674 (1986)
Douds v. State, 434 S.W.3d 842, 861-62 (Tex. App.—Houston 35 [14th Dist.] 2014), petition for discretionary review granted (Sept. 17, 2014)
33 Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005) George v. State, 20 S.W.3d 130, 140 (Tex. App.—Houston 29 [14th Dist.] 2000, pet. ref'd)
4 Gilbert v. State, 493 S.W.2d 783, 783 (Tex. Crim. App. 1973) 38
Gillenwaters v. State, 205 S.W.3d 534, 537 13 (Tex.Crim.App.2006)
Hensarling v. State, 829 S.W.2d 168, 170-71 (Tex. Crim. App. 28, 29 1992)
Howard v. State, 617 S.W.2d 191, 193 (Tex.Crim.App.1979) 34 (op. on reh'g) Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) 13, 14
Keen v. State, 626 S.W.2d 309, 313 (Tex. Crim. App. 1981 38 overruled on other grounds)
Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004) 33
Langham v. State, 305 S.W.3d 568, 576 (Tex.Crim.App.2010) 18
Lee v. State, 418 S.W.3d 892, 896 (Tex. App.—Houston [14th 17, 19 Dist.] 2013), petition for discretionary review refused (Mar. 12, 2014) McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. 33 denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003)
McNairy v. State, 835 S.W.2d 101, 106–07 36 (Tex.Crim.App.1991)
Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 18, 19 2527, 174 L.Ed.2d 314 (2009) Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 34 L.Ed.2d 343 (1979)
Ramirez v. State, 105 S.W.3d 730, 744 (Tex. App.—Austin 36 2003, no pet.)
5 Reynolds v. State, 506 S.W.2d 864, 864 (Tex. Crim. App. 38 1974)
Rickels v. State, 108 S.W.3d 900, 902 (Tex.Crim.App.2003) 13
Smith v. State, 297 S.W.3d 260, 277 (Tex. Crim. App. 2009) 20
State v. Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App. 34 1996)
State v. Stewart, 282 S.W.3d 729, 737 (Tex. App.—Austin 33 2009, no pet.)
Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005) 33
Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.2006) 17
Wood v. State, 299 S.W.3d 200, 208 (Tex. App.—Austin 17, 19 2009, pet. ref'd)
Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.2009) 33
United States v. Rubin, 474 F.2d 262, 268 (3d Cir.1973) 36
Statutes
Tex. Crim. Proc. Code Ann. § art. 18.04 (West) 38
Tex. Crim. Proc. Code Ann. § art. 38.23 (West) 34
Tex. Crim. Proc. Code Ann. § art. 46B (West) 16, 19, 23
Tex. R. App. Proc. 33.1(a) 13
Tex. R. App. Proc. 44.2 20
Tex. R. Evid. Rule 201 (b) 14, 15
6 Tex. R. Evid. Rule 605 28
U.S. Const. amend. IV 33
STATEMENT OF THE CASE
Appellant was indicted in Cause Number 1323670 for Murder. Appellant
pled ―Not Guilty‖ and waived his right to a jury trial. The trial court found
Appellant guilty and set the punishment at fifty years in the Institutional Division
of the Texas Department of Criminal Justice and no fine. The trial court certified
Appellant‘s right to appeal and Appellant timely filed a Notice of Appeal.
ISSUES PRESENTED
Did the trial court err in considering the competency evaluation report filed
by Dr. Michael Pittman?
Did the trial court err in denying Appellant‘s Motion to Suppress: Seizure
Without Warrant?
Did the trial court err in denying Appellant‘s Motion to Suppress based on
an improperly executed search warrant?
STATEMENT OF FACTS
Appellant and Tyler Crayton were married in August 2008 after dating the
previous two years. (R.R. Vol. 7 pg. 44-5). Their son, Preston, was born in July
7 2007. (R.R. Vol. 7 pg. 63). They lived in Sulphur Springs together with Preston,
her mother Mildred Townsend and her brother Jay Townsend. (R.R. Vol. 7 pg. 42-
3). Their marriage was strained by Appellant‘s infidelities and his leaving the
household for periods of time. (R.R. Vol. 7 pg. 69). However by all accounts,
Appellant had never been violent towards Ms. Crayton. (R.R. Vol. 6 pg. 166-9,
Vol. 7 pg. 68). Appellant was a passive individual that always walked away from
conflict within the family. (R.R. Vol. 6 pg. 166-9, Vol. 7 pg. 68).
On October 22, 2013, Ms. Crayton was killed in her home in Sulphur
Springs. (R.R. Vol. 7 pg. 69). She died of ―sharp-force injuries of the neck‖
involving multiple stab wounds. (R.R. Vol. 7 pg. 29, SX-113). The cause of death
was listed as ―homicide.‖ (R.R. Vol. 7 pg. 29, SX-113).
The night before Ms. Crayton‘s death, Appellant had attended counseling
with his wife‘s mother, to whom he stated ―he had finally realized God loved him.‖
(R.R. Vol. 7 pg. 77). That night, Appellant was at the kitchen table reading his
Bible as Ms. Townsend went to bed. (R.R. Vol. 7 pg. 77). His belongs were
packed in bags and sitting in the hall of the residence that night. (R.R. Vol. 7 pg.
75-6). Ms. Townsend was aware that her daughter was planning on talking to
Appellant the next day about their relationship. (R.R. Vol. 7 pg. 78). Appellant
slept in the recliner in the living room of the residence that night. (SX-71).
8 Appellant often slept in that recliner prior to Ms. Crayton‘s death due to his
desire to protect his family from his ex-girlfriend, Sherry Lewis. (R.R. Vol. 7 pg.
76-7). Appellant believed that Sherry Lewis was a witch and had power over him
and he feared that she would do harm to his family at their house. (R.R. Vol. 7 pg.
84).
Ms. Townsend did not see Appellant at the residence the next morning prior
to her leaving for work. (R.R. Vol. 7 pg. 77). This was not unusual because
Appellant would sometimes take walks early in the morning. (R.R. Vol. 7 pg. 78-
9). She informed law enforcement during her interview that she did not see
Appellant that morning prior to leaving the residence for work. (R.R. Vol. 7 pg.
88-9). Jay Townsend also informed law enforcement that he had not seen
Appellant that morning either, but heard water running and assumed he was there,
even though he said it could have been a toilet that often runs. (R.R. Vol. 6 pg.
207).
When Ms. Townsend was informed that her daughter had been killed, her
first thought was that Sherry Lewis did it and never considered Appellant to be a
suspect. (R.R. Vol. 7 pg. 82). Ms. Townsend considered Sherry Lewis to be
capable of murder and believed that she had a motive to kill her daughter and was
likely to have been the person who killed her daughter. (R.R. Vol. 7 pg. 82, 89).
9 Further, she did not believe Appellant to be capable of murder nor did she believe
Appellant committed the murder. (R.R. Vol. 7 pg. 87-8).
Ms. Townsend told law enforcement about a prior incident involving Sherry
Lewis coming to her house demanding to talk to Appellant and causing such a
disturbance that they called the police to make her leave. (R.R. Vol. 7 pg. 90-1).
She also described Sherry Lewis coming to her house on other occasions that did
not necessitate police intervention. (R.R. Vol. 7 pg. 91).
On October 22, officers were dispatched to the residence to respond to an
open 911 call with no voices on it. (R.R. Vol. 6 pg. 54-5, 82). Ms. Crayton was
found dead in the residence. (R.R. Vol. 6 pg. 61). A little more than an hour after
arriving at the residence, officers were dispatched to the League Street overpass at
Interstate 30 in Sulphur Springs. (R.R. Vol. 6 pg. 68). Officers found Appellant
lying in the Westbound lane of Interstate 30. (R.R. Vol. 6 pg. 68-78). Appellant
had sustained significant injuries and was unable to respond to questions. (R.R.
Vol. 2 pg. 43-5, Vol. 6 pg. 79-80).
Appellant had no identification on his person and was not positively
identified at the scene. (R.R. Vol. 2 pg. 49, 66, 85-6). Officer Amanda
Weatherford testified that she believed she heard some officers begin calling him
―Tony,‖ but could not remember which officers. (R.R. Vol. 2 pg. 55). Officer
Antwone Young believed that officer‘s that had been at the murder scene knew
10 him to be the suspect although he could not say which officers or why they
believed that. (R.R. Vol. 2 pg. 79-82). The only officers that had been to the
murder scene on location at the highway were Officer Amanda Weatherford and
Officer Jay Sanders. Officer Sanders testified that he had ―just kind of a gut
feeling‖ that he was the suspect. (R.R. Vol. 2 pg. 92).
While Appellant laid on the highway being treated by emergency medical
personnel, officers seized as evidence in the murder investigation what they
believed to be his shoes, glasses and baseball hat. (R.R. Vol. 2 pg. 47-50). The
shoes were seized as evidence at 2:26 pm on October 22, 2013. (R.R. Vol. 2 pg.
49). Shortly after seizing the shoes, Officer Weatherford took Appellant‘s left
hand and, without his consent, opened it up exposing the inside webbing between
the thumb and index finger. (R.R. Vol. 2 pg. 51). Officers then took a picture of a
cut on that area as it was held open by an individual wearing latex gloves. (SX-
15). The seized evidence was bagged, logged as evidence, taken to the Sulphur
Springs Police Department and placed into the evidence locker. (R.R. Vol. 2 pg.
56). Appellant was later transported to the hospital by ambulance. (R.R. Vol. 2 pg.
66-7). When officers arrived at the police department, they were able for the first
time to positively identify Appellant as the individual they encountered on the
highway. (R.R. Vol. 2 pg. 59-60).
11 Officer Young followed Appellant to the hospital to collect his clothing, and
any other items, as evidence. (R.R. Vol. 2 pg. 65). At the hospital, medical
personnel asked him if he wanted to take possession of Appellant‘s clothing and he
answered affirmatively. (R.R. Vol. 2 pg. 67-9). At 3:15 pm on October 22, 2013,
Officer Young seized them, sealed them in an evidence bag and took them to the
Sulphur Springs Police Department where he released them to Detective Fox.
(R.R. Vol. 2 pg. 71-2, 77-8).
On October 22, 2013, Detective Fox presented an Affidavit for Search
Warrant to District Judge Eddie Northcutt (SX-56). Judge Northcutt issued a
Search Warrant pursuant to that affidavit at 4:50 pm on that date. (SX-56).
Detective Fox executed the Search Warrant on Appellant‘s clothing, shoes, hat and
glasses at the Sulphur Springs Police Department where they were located after
having been seized, sealed, bagged and logged as evidence by other officers. (R.R.
Vol. 2 pg. 169-171). Detective Fox executed the Search Warrant on Appellant‘s
body to collect blood samples, fingernail clippings, oral swabs and blood swabs
from his fingernail while Appellant was in Mother Frances Hospital in Tyler,
Texas located in Smith County. (R.R. Vol. 6 pg. 116-18).
On October 29, 2013, following his release from the hospital, Appellant was
transported to the Hopkins County Jail. (R.R. Vol. 6 pg. 124). There, he was
interrogated by Detective Fox and Texas Ranger John Vance. (R.R. Vol. 6 pg.
12 124). The interrogation produced a muttering, rambling, disjointed statement that
the Court Reporter could not transcribe. (R.R. Vol. 6 pg. 127, SX-71). Detective
Fox testified that Appellant confessed to the murder of his wife during that
interrogation. (R.R. Vol. 6 pg. 140).
In announcing its verdict, after careful and lengthy consideration, the trial
court informed the parties that it took ―judicial notice of the file‖ on its on motion
during deliberations in order to review a report from Dr. Pittman following a
competency evaluation. (R.R. Vol. 8 pg. 18). Particularly, the trial court
referenced the portion of the report indicating that Appellant was faking his mental
health issues. (R.R. Vol. 8 pg. 18-9). The trial court found Appellant guilty as
charged in the indictment. (R.R. Vol. 8 pg. 22).
In announcing its verdict regarding sentencing, the trial court again
referenced Dr. Pittman‘s report in finding that Appellant had been faking his
mental health issues and, therefore, had no significance as mitigation in this case.
(R.R. Vol. 8 pg. 107-8). The trial court sentenced Appellant to fifty years and no
fine. (RR Vol. 8 pg. 109). Appellant filed notice of Appeal. (C.R. pg. 102).
SUMMARY OF ARGUMENT
The trial court improperly took judicial notice of the report issued by Dr.
Pittman. During its deliberations, the trial court took judicial notice of the file and
reviewed the report contained within it. This resulted in a violation of Appellant
13 6th Amendment constitutional right to confront and cross-examine the witnesses
against him under Crawford, of Rule 201 of the Texas Rules of Evidence and of
Article 46B.007 of the Texas Code of Criminal Procedure.
The trial court improperly denied Appellant‘s Motion to Suppress: Seizure
Without Warrant. Law enforcement seized several items of evidence without first
obtaining a warrant in violation of Appellant‘s Fourth Amendment Rights and the
Texas Code of Criminal Procedure. The State failed to prove a ―specifically
defined and well-established‖ exception to the warrant requirement.
The trial court improperly denied Appellant‘s Motion to Suppress. The
officers executing the search warrant did not have jurisdiction to conduct the
search and seizure of the evidence. The State failed to prove that the execution of
the search warrant was assisted by an officer with proper jurisdiction.
ARGUMENT
I. TRIAL COURT IMPROPERLY CONSIDERED A COMPETENCY
REPORT
The trial court improperly took judicial notice of the report issued by Dr.
Pittman. During its deliberations, the trial court took judicial notice of the file and
reviewed the report contained within it. This resulted in a violation of Appellant
6th Amendment constitutional right to confront and cross-examine the witnesses
14 against him under Crawford. This also violated Rule 201 of the Texas Rules of
Evidence providing for the proper procedure of judicial notice. This also violated
Article 46B.007 of the Texas Code of Criminal Procedure prohibiting the use of
the report and testimony regarding the evaluation of Appellant‘s competency to
stand trial.
A. Preservation of Error
―Ordinarily, to preserve an issue for appellate review, an appellant must
have first raised the issue in the trial court.‖ Burt v. State, 396 S.W.3d 574, 577
(Tex. Crim. App. 2013) citing Tex. Rule App. Proc. 33.1(a); Gillenwaters v. State,
205 S.W.3d 534, 537 (Tex.Crim.App.2006).
However the Court of Criminal Appeal in Burt v. State noted, ―[t]he
requirement that an objection be raised in the trial court assumes that the appellant
had the opportunity to raise it there.‖ Burt v. State, 396 S.W.3d at 577, citing Issa
v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992) (permitting appellant to raise
his objection for the first time in a motion for new trial since ―appellant had no
opportunity to object to the trial court's action until after that action was taken.‖).
The Burt Court held that ―if an appellant never had the opportunity to object, then
he has not forfeited error.‖ Burt v. State, 396 S.W.3d at 577-78, citing Rickels v.
State, 108 S.W.3d 900, 902 (Tex.Crim.App.2003); Cobb v. State, 95 S.W.3d 664,
666 (Tex.App.–Houston [1st Dist.] 2002, no pet.).
15 The Court of Criminal Appeals in Issa v. State held that where an ―appellant
had no opportunity to object to the trial court's action until after that action was
taken … that raising his objection in his timely filed motion for new trial did
preserve the error for appellate review.‖ Issa v. State, 826 S.W.2d 159, 161 (Tex.
Crim. App. 1992).
Here, the trial court took judicial notice of the file and reviewed the report of
Dr. Pittman outside the presence of the parties during its private deliberations.
(R.R. Vol. 8 pg. 18). Obviously, Appellant had no opportunity to object to the trial
court‘s actions and properly raised his objection in his timely filed motion for new
trial. (C.R. pg. 111-16). Therefore, the error is preserved for appellate review.
B. Texas Rules of Evidence 201
The trial court took judicial notice of Dr. Pittman‘s report in violation of
Rule 201 of the Texas Rules of Evidence.
Rule 201 provides for the admission of ―Adjudicative Facts‖ under the rules
set-out within it. Subsection (b) states that the kinds of facts that may be judicially
noticed are facts that are ―not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.‖
Tex. R. Evid. Rule 201 (b).
16 Rule 201 allows for a trial court to, on its own, take judicial notice of those
facts, provided however, that ―a party is entitled to be heard on the propriety of
taking judicial notice and the nature of the fact to be noticed.‖ Tex. R. Evid. Rule
201 (c), (e).
The trial court took judicial notice of a report provided by Dr. Michael
Pittman regarding Appellant‘s competency to stand trial. The trial court violated
Rule 201 by not provided the opportunity to be heard. Also, the trial court
judicially noticed facts that are not ―Adjudicative Facts.‖ Those facts asserted in
the report could and would have been highly challenged at trial by Appellant if
provided the opportunity. Courts have allowed a trial court to take judicial
notice of a competency report in making a pretrial determination of ―competency‖
to stand trial. However, the trial court in this case used it to assist in its finding of
guilt, voluntariness of Appellant‘s statement, whether Appellant gave a false
confession and determining the significance of Appellant‘s mental health evidence
offered in mitigation of punishment. The trial court did not take judicial notice to
reiterate Appellant‘s legal competency to stand trial. Instead, the trial court
focused on the expert‘s opinion regarding Appellant‘s mental illnesses, or lack
thereof. Further the trial court focused on the opinion that Appellant was
pretending to have mental health issues and lack of understanding to avoid
17 responsibility for the offense. These are not the type of ―Adjudicative Facts‖
intended for judicial notice under Rule 201.
Therefore, the trial court erred in taking judicial notice of the ―Psychiatric
Evaluation‖ contained in the court‘s file.
C. Code of Criminal Procedure Article 46B.007
Article 46B.007 of the Texas Code of Criminal Procedure state, ―[a]
statement made by a defendant during an examination or trial on the defendant's
incompetency, the testimony of an expert based on that statement, and evidence
obtained as a result of that statement may not be admitted in evidence against the
defendant in any criminal proceeding, other than at:
(1) a trial on the defendant's incompetency; or
(2) any proceeding at which the defendant first introduces into evidence a
statement, testimony, or evidence described by this article.‖
Tex. Crim. Proc. Code Ann. § art. 46B.007 (West). Appellant offered no
statement, testimony or evidence described in that article at trial. Therefore, the
admission of Dr. Pittman‘s report was in violation of this article. Consequently,
the trial court erred in considering it at trial.
D. Crawford Violation
The consideration of Dr. Pittman‘s report violated Appellant‘s right to
confrontation under Crawford. ―In Crawford v. Washington, the Supreme Court
18 held that the Sixth Amendment confrontation right applies not only to in-court
testimony, but also to out-of-court statements that are testimonial in nature.
Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004). The Confrontation Clause forbids the admission of testimonial hearsay
unless the declarant is unavailable to testify and the defendant had a prior
opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. 1354.
1. Standard of Review
Whether a particular out-of-court statement is testimonial is a question of
law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). Wood v.
State, 299 S.W.3d 200, 207 (Tex. App.—Austin 2009, pet. ref'd). Although
evidentiary rulings are usually reviewed for an abuse of discretion, a statement's
testimonial nature is a question of law that we review de novo. Wall v. State, 184
S.W.3d 730, 742 (Tex.Crim.App.2006). Lee v. State, 418 S.W.3d 892, 895-96
(Tex. App.—Houston [14th Dist.] 2013), petition for discretionary review refused
(Mar. 12, 2014).
2. Testimonial
Dr. Pittman‘s report, prepared at the request of the trial court to determine
Appellant‘s competency to stand trial, was testimonial in nature.
The threshold inquiry is whether the hearsay at issue is ―testimonial.
―Various formulations of th[e] core class of ‗testimonial‘ statements exist....‖
19 Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004). The Court of Criminal Appeals has summarized three kinds of testimonial
statements: (1) ―ex parte in-court testimony or its functional equivalent,‖ i.e.,
―pretrial statements that declarants would expect to be used prosecutorially;‖ (2)
―extrajudicial statements contained in formalized testimonial materials,‖ such as
affidavits, depositions, or prior testimony; and (3) ―statements that were made
under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.‖ Langham v. State,
305 S.W.3d 568, 576 (Tex.Crim.App.2010).
The United States Supreme Court has twice held that expert reports of
scientific testing results are testimonial. Bullcoming v. New Mexico, ––– U.S. –––
–, ––––, 131 S.Ct. 2705, 2715, 180 L.Ed.2d 610 (2011); Melendez–Diaz v.
Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
Justice Scalia, writing for the majority in Melendez-Diaz, found that the
expert‘s report was prepared ―under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a
later trial,‘‖ In rejecting the respondent‘s and the dissent‘s argument, he wrote
―…there is little reason to believe that confrontation will be useless in testing
analysts‘ honesty, proficiency, and methodology—the features that are commonly
the focus in the cross-examination of experts. Therefore, reports setting forth
20 expert opinions made in preparation for testimony at trial are squarely within the
definition of ―testimonial‖ as contemplated by Crawford.‖ Melendez–Diaz v.
Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
Some Texas cases have found that expert reports are not testimonial.
―However, these opinions were written before the Supreme Court announced its
opinion in Melendez–Diaz v. Massachusetts.‖ Wood v. State, 299 S.W.3d 200,
208 (Tex. App.—Austin 2009, pet. ref'd), citing Melendez–Diaz v. Massachusetts,
557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The holding of the United
States Supreme Court in Melendez–Diaz and Bullcoming overrules those Texas
cases. ―[T]he Supreme Court explicitly rejected the analysis applied in some
Texas cases, noting that such reports are testimonial notwithstanding that they are
the ‗result of neutral, scientific testing.‘‖ Lee v. State, 418 S.W.3d 892, 896 (Tex.
App.—Houston [14th Dist.] 2013), petition for discretionary review refused (Mar.
12, 2014).
E. Analysis
The Texas statutory scheme to determine a defendant‘s competency to stand
trial clearly contemplates the expert conducting the evaluation to provide in-court
testimony regarding his report at a trial/hearing regarding a defendant‘s
competency. Tex. Crim. Proc. Code Ann. § art. 46B (West). Therefore, any report
prepared by that expert regarding that evaluation would be prepared ―under
21 circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.‖
We can safely assume that Dr. Pittman, ordered to conduct the competency
evaluation according to the statute, was familiar with the statutory scheme that
required it. Consequently, Dr. Pittman prepared his ―Psychiatric Evaluation‖
report with an understanding that it would be available for later use in court.
Therefore, the trial court considered ―testimonial‖ hearsay by taking judicial
notice of Dr. Pittman‘s report in violation of Appellant‘s Sixth Amendment right to
confrontation as required by Crawford.
F. Harm
A violation of Appellant‘s right of confrontation as outlined in Crawford is
constitutional error.
Texas Rule of Appellate Procedure 44.2 states, ―[i]f the appellate record in a
criminal case reveals constitutional error that is subject to harmless error review,
the court of appeals must reverse a judgment of conviction or punishment unless
the court determines beyond a reasonable doubt that the error did not contribute to
the conviction or punishment.‖ Tex. R. App. Proc. 44.2.
―Having found constitutional error, we need not reverse the trial court's
judgment if we conclude beyond a reasonable doubt that the error did not
contribute to appellant's punishment. Smith v. State, 297 S.W.3d 260, 277 (Tex.
22 Crim. App. 2009), citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). Therefore, the Court should reverse this case unless it
believes beyond a reasonable doubt that the error did not contribute to the
conviction or punishment.
The United States Supreme Court has held that harmless error analysis for
Confrontation Clause violations assumes that ―the damaging potential of the cross-
examination [would have been] fully realized.‖ Delaware v. Van Arsdall, 475 U.S.
673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). However the Texas Court
of Criminal Appeals has adopted a separate standard as to Crawford violations.
The Court of Criminal Appeals held, ―[t]hus, courts reviewing whether the
error in admitting out-of-court statements in violation of Crawford is harmless
beyond a reasonable doubt should consider:
(1) The importance of the hearsay statements to the State's case;
(2) Whether the hearsay evidence was cumulative of other evidence;
(3) The presence or absence of evidence corroborating or contradicting the
hearsay testimony on material points; and
(4) The overall strength of the prosecution's case
Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006).
Appellant believes that this Court should apply the Van Arsdall assumption
in this case. However, the error is ultimately harmful under either standard.
23 The error here is the admission of an expert‘s report without the benefit of
cross-examination. In announcing its verdict at guilt/innocence, the trial court
stated, ―… I come to the same conclusions in that actually that Dr. Pittman does,
and that is that some descriptions of and self-reporting of mental health issues may
be exaggerated in this particular case.‖ (R.R. Vol. 8 pg. 18-19). At punishment
the trial court stated, ―I came to my own conclusions, which were in great support
supported by Dr. Michael Pittman's consideration of his exhibitions, his perceived
symptoms, and believe those not to be - - any resulting mental illness or mental
health issues that Mr. Crayton had to be of any significant mitigation in this
particular case.‖ (R.R. Vol. 9 pg. 107-108).
The trial court is referencing the ―Psychiatric Evaluation‖ created and filed
by Dr. Michael Pittman pursuant to a statutory competency evaluation. (C.R. pg.
61). In the ―Conclusions‖ portion of the report, Dr. Pittman writes, ―[t]hough he
seemed upset about his current situation, I doubted that Mr. Crayton had a current
mental illness; I believed that he was fabricating most of his symptoms.‖ (C.R. pg.
61). Further, under the ―Mental Status Evaluation‖ portion, Dr. Pittman writes,
―[a]lthough Mr. Crayton claimed some ignorance, despite his educational
attainment and previous good functioning, some ignorance of the various roles of
courtroom personnel, I disbelieved him.‖ (C.R. pg. 62). Essentially, Dr. Pittman‘s
opinion is that Appellant was lying in order to appear to have mental illness and
24 lack understanding of the judicial system. The logical conclusion from this is that
Appellant is willing to be deceitful to avoid criminal responsibility and to appear
more sympathetic.
It should be noted that the since the State‘s evidence did not included any
psychological evidence, the defensive strategy at trial did not include rebutting any
psychological findings. The defense was not intending on having to challenge Dr.
Pittman‘s testimony and did not request an expert be appointed to do so. The
defense was well aware of Art. 46B.007 and its prohibition of the use of Dr.
Pittman‘s testimony at trial. Tex. Crim. Proc. Code Ann. § art. 46B.007 (West).
The trial court‘s judicial notice of the doctor‘s report flies in the face of this
prohibition and left the defense ―defenseless.‖ Had the defense known that the
trial court would violate Art. 46B.007, it would have refused to participate in the
evaluation and requested an expert be appointed to rebut Dr. Pittman‘s opinions.
1. The importance of the hearsay statements to the State's case
The importance of Dr. Pittman‘s opinions to the State‘s case was to portray
Appellant‘s statement as another attempt to falsely portray mental issues, while
trying to avoid responsibility for his actions and to appear more sympathetic. That
was exactly what it did. (R.R. Vol. 8 pg. 18-19, 21). The trial court dismissed the
testimony regarding Appellant‘s mental issues and found them to be
―exaggerated.‖ (R.R. Vol. 8 pg. 18-19). The trial court found that Appellant was
25 in ―complete possession of his mental faculties‖ and had anticipated and prepared
for the interview. (R.R. Vol. 8 pg. 18-19). This was important to the trial court‘s
determination regarding Appellant‘s credibility in the statement and as to
consideration of lesser included offenses.
Furthermore, it damaged Appellant‘s ability at punishment to develop this
mitigation, which significantly strengthened the State‘s argument that this was a
particularly brutal case without mitigation. The trial court referenced Dr. Pittman‘s
opinion in finding that Appellant‘s mental health symptoms were not genuine and,
therefore, his mental health issues to not be of ―significant mitigation.‖ (R.R. Vol.
9 pg. 107-108).
2. Was the hearsay evidence cumulative of other evidence
Dr. Pittman‘s report is the only evidence supporting the trial court‘s finding
that Appellant was ―exaggerating‖ his mental health issues and that his manifested
mental health symptoms were not real and, therefore, not mitigating. (R.R. Vol. 8
pg. 18-19, Vol. 9 pg. 107-108). No expert or lay witness testimony was offered at
trial suggesting that Appellant was faking his mental illness symptoms.
3. The presence or absence of evidence corroborating or contradicting
the hearsay testimony on material points
Appellant developed, through Mildred Townsend, that Appellant suffered
from a very difficult childhood and was attending counseling and seeking spiritual
26 help in dealing with its effects. She also testified that he seemed genuine in this
pursuit. (R.R. Vol. 7 pg. 74). Appellant further developed this evidence through
his sister, Yalanda Crayton, including previous mental health treatment and a
suicide attempt. (R.R. Vol. 9 pg. 52-58). This was further developed by the
observable manifestations on the video statement of Appellant admitted by the
State. (SX-71). The State offered no evidence to rebut those assertions or to
corroborate the unexpected hearsay evidence of Dr. Pittman‘s report.
4. The overall strength of the prosecution's case
The State‘s case was based on DNA linking Appellant to the crime scene,
Appellant having jumped off of a bridge shortly after law enforcement found the
body and Appellant‘s confessions. The defensive strategy was to develop
―reasonable doubt‖ by attack the investigation as a ―rush to judgment‖ without
fully investigating all leads, to present an alternate perpetrator theory and
representing the confessions as unreliable due to mental health issues.
As to punishment, the defense was to present Appellant as a non-violent,
troubled man with a difficult upbringing suffering from mental health issues that
was pushed to the brink by a wife that desperately wanted more than he could give.
Further, that Appellant was acting under ―sudden passion‖ at the time. The State‘s
case on punishment was to portray the crime as particularly brutal and Appellant as
27 a calculating individual that made a choice to murder his wife to ―shut her up.‖
(R.R. Vol. 9 pg. 86).
This was not an easy case for the trial court to decide as the length of its
deliberations clearly showed, including having to move back the announcement of
that verdict due to its deliberations. (R.R. Vol. 8 pg. 4). The trial court
meticulously set out all the evidence and how it impacted its decisions at
guilt/innocence. (R.R. Vol. 8 pg. 8-22). The trial court provided a well thought-
out and precise road map for its decision and the facts that led to those decisions,
including Dr. Pittman‘s report. Thus, this Court does not have to guess as to the
relative strength or weakness of the State‘s case.
The trial court found that the physical evidence, coupled with his apparent
suicide attempt shortly thereafter, leads to the rational conclusion that Appellant
caused Ms. Crayton‘s death. (R.R. Vol. 8 pg. 11-12). Regarding Appellant‘s
culpable mental state, the trial court considered a lesser charge of Manslaughter
and whether the evidence showed merely an Aggravated Assault with a deadly
weapon. (R.R. Vol. 8 pg. 15-16). The trial court does not easily dismiss these
considerations. Appellant‘s interview filled in the gaps and allows for the
dismissal of the defensive strategies of ―rush to judgement,‖ faulty investigation,
and alternate perpetrator. If the trial court believed that Appellant‘s mental illness
symptoms manifested on the video were legitimate, the State‘s case becomes weak
28 in this regard. If the trial court believed, as Dr. Pittman did, that Appellant was
acting to avoid responsibility and garner sympathy, then the State‘s case becomes
strong.
The trial court notes that Appellant‘s statement ―in this particular case is
helpful.‖ (R.R. Vol. 8 pg. 16). The trial court mentions the ―unusual behaviors‖
exhibited on the video, discusses Dr. Pittman‘s opinions and his own claimed
―experienced as a mental health professional.‖ (R.R. Vol. 8 pg. 18-19). Although
the trial court describe one example of inconsistency he observed on the video, he
points to no testimony supporting his conclusion other than Dr. Pittman‘s report.
(R.R. Vol. 8 pg. 19-20).
As to the strength of the State‘s case at punishment, the finding that
Appellant was a calculating deceitful murderer that does not suffer from mental
illness was essential to disprove the defense of sudden passion and discount the
mitigation evidence presented by Appellant.
While on the other hand, the Appellant‘s case at punishment was seemingly
strong. The State presented no evidence of a violent past, except for one incident
that resulted in no injuries. The victim‘s mother testified that she loves and
forgives Appellant. (R.R. Vol. 9 pg. 13-14). Further, Appellant was able to
present himself as a non-violent man that loved his son. Appellant was presented
as having a trouble up-bringing filled with violence, but was at the time of the
29 crime truly trying to deal with his issues. The video showed, in dramatic fashion,
the moment when Appellant describes the sudden passion that overcame him and
that resulted in his terrible actions. However, Appellant did not anticipate the trial
court‘s consideration of the competency report that could not by statute be used at
trial supporting the trial court‘s belief that Appellant was faking his symptoms of
mental illness.
The report‘s bearing on the strength and weaknesses of State‘s case is
obvious from its reference by the trial court at both guilt/innocence and
punishment. To believe that Dr. Pittman‘s report had ―no impact‖ on the decision
would be nonsensical. This Court would have to believe beyond a reasonable
doubt that, for no reason at all, the trial court took judicial notice of the file on its
own motion, obtained the report, read it and twice referenced it during its
explanation of how it reached its decision.
G. Motion for New Trial Evidence
The State may point to the factual assertions made by the trial court at the
hearing on the Motion for New Trial as proving that the error did not contribute to
the outcome beyond a reasonable doubt. This Court should not consider that as
evidence in determining harm.
1. Texas Rule of Evidence 605
30 Rule 605 states, ―[t]he judge presiding at the trial may not testify in that trial
as a witness. No objection need be made in order to preserve the point.‖ Tex. R.
Evid. Rule 605. The Court of Criminal Appeals considered a trial court presenting
facts at a hearing in Hensarling v. State. There the trial court judge testified at a
hearing regarding a defendant‘s competency to stand trial presided over by a
different judge. Hensarling v. State, 829 S.W.2d 168, 170-71 (Tex. Crim. App.
1992). The Court found that Texas Rule of Evidence 605 would apply to the
hearing, but did not in that case because a different judge presided over the
hearing. Hensarling v. State, 829 S.W.2d at 171. However, the Court of Criminal
Appeals provided clarification regarding Rule 605, its application and purpose.
The Court held, ―[t]he phrase ‗the judge presiding at the trial may not testify
in that trial‘ means that the judge who is presiding over a proceeding may not ‗step
down from the bench‘ and become a witness in the very same proceeding over
which he is currently presiding.‖ Hensarling v. State, 829 S.W.2d at 170.
The Court goes on to explain the purpose behind the rule. ―The judge is a
neutral arbiter in the courtroom, and the rule seeks to preserve his posture of
impartiality before the parties and particularly in the eyes of the jury.‖ Hensarling
v. State, 829 S.W.2d at 171. As the Court points out, ―[a] judge who testifies, for
example, might be required to evaluate his own testimony…‖ Hensarling v. State,
829 S.W.2d at 171.
31 As the Houston 14th Appellate Court properly pointed out, ―[w]e recognize
that when a judge's character, impartiality, or professionalism has been impugned,
it may be difficult to resist the urge to ‗set the record straight.‘‖ George v. State,
20 S.W.3d 130, 140 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). It has
always been permissible for a trial court to ―clarify‖ facts for an appellate record as
to those events that occur in open court for all to see, except the appellate court,
and are not reasonably in dispute. However, where the sole issue of the hearing is
regarding the actions of the trial court itself, to allow the trial court to make factual
assertions regarding disputed facts goes to the heart of the purpose of Rule 605.
A trial court loses its ―posture of impartiality before the parties‖ and would
be required to evaluate its on testimony. Appellant would be required to convince
the trial court judge to find that its own factual assertions are incorrect or lack
credibility. Was Appellant to cross-examine the trial court judge in an effort to
challenge its own factual assertions?
2. Analysis
Here, the trial court judge clearly believed, at trial, that it could properly take
judicial notice of the file and with it, Dr. Pittman‘s report. It did so and read it
specifically with an eye towards its consideration of guilt, the culpable mental state
of Appellant, the voluntariness of Appellant‘s statement, and regarding the
32 mitigation evidence offered at punishment. The trial court announced its decisions
and how the report played into its considerations.
Appellant filed its Motion for New Trial pointing out the trial court‘s error
and that it constituted constitutional error. Neither party offered evidence at the
hearing. The trial court, without request from either side, began testifying
regarding its deliberations. (R.R. Hearing on Motion for New Trial pg. 5-7). The
trial court‘s testimony included that he ―…did not consider anything in Dr.
Pittman‘s report to reach my conclusions…‖ (R.R. Hearing on Motion for New
Trial pg. 6). The trial court even adds ―…I‘ll want that information before the
Court (referring to this Court) so they don‘t have to wonder whether or not I did
consider.‖ (R.R. Hearing on Motion for New Trial pg. 6). The trial court then asks
whether either side had ―[a]anything in response…‖ to that testimony. (R.R.
Hearing on Motion for New Trial pg. 7).
Appellant‘s trial counsel, taken aback by the trial court‘s attempt to cure the
error, objects and requests another judge be appointed to hear the motion. (R.R.
Hearing on Motion for New Trial pg. 7, 8). The trial court considered neither the
objection nor the request for another judge to hear the motion.
This issue is compounded when the trial court‘s testimony at the hearing is
in contrast to its statements made at the earlier trial. This is not simply the trial
court stating its internal thoughts regarding its decisions as discussed by the Waco
33 Court in Stewart. State v. Stewart, 282 S.W.3d 729, 737 (Tex. App.—Austin
2009, no pet.). Here, the trial court put its internal thought processes in the record
at trial during its announcement of its decisions. When faced with the error it
divulged in doing so, the trial court later made factual assertions at the new trial
hearing addressing the error and the factual allegations contained in the motion.
To allow this process would be to deny Appellant a meaningful
consideration of the merits of its claims at the Motion for New Trial and on appeal
to this Court.
H. Conclusion
Therefore, this Court should find that the trial court erred in considering Dr.
Pittman‘s report and that the error was harmful regarding Appellant‘s conviction.
Consequently, this Court should reverse the judgement of conviction and order a
new trial. Alternatively, this Court should find that the error was harmful to the
punishment assessed and order a new trial on punishment.
II. DID THE TRIAL COURT ERR IN OVERRULING THE MOTIONS
TO SUPPRESS EVIDENCE
Appellant filed a Motion to Suppress: Seizure Without Warrant alleging
that certain items of evidence were seized by law enforcement without a warrant
and admitted at trial. (C.R. pg. 43). Appellant also filed a Motion to Suppress
34 challenging the execution of the search warrant used to seize evidence admitted at
trial. (C.R. pg 40).
A. Seized Without Warrant
Law enforcement seized several items of evidence without first obtaining a
warrant in violation of Appellant‘s Fourth Amendment Rights. Those items were
later admitted at trial in violation of the Texas Code of Criminal Procedure.
The Fourth Amendment protects against unreasonable searches and seizures
by government officials. U.S. Const. amend. IV. To suppress evidence because of
an alleged Fourth Amendment violation, the defendant bears the initial burden of
producing evidence that rebuts the presumption of proper police conduct. Amador
v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007); see Young v. State, 283
S.W.3d 854, 872 (Tex.Crim.App.2009). A defendant satisfies this burden by
establishing that a search or seizure occurred without a warrant. Amador, 221
S.W.3d at 672. Once the defendant has made this showing, the burden of proof
shifts to the State, which is then required to establish that the search or seizure was
conducted pursuant to a warrant or was reasonable. Amador. at 672–73; Torres v.
State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488,
492 (Tex.Crim.App.2005).
A search or seizure conducted without a warrant is per se unreasonable
unless it falls within one of the ―specifically defined and well-established‖
35 exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615
(Tex.Crim.App.), cert. denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410
(2003); Best v. State, 118 S.W.3d 857, 862 (Tex.App.-Fort Worth 2003, no pet.).
Whether a search or seizure is reasonable is a question of law that is
reviewed de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004).
Article 38.23 of the Texas Code of Criminal Procedure provides ―[n]o
evidence obtained by an officer or other person in violation of any provisions of
the Constitution or laws of the State of Texas, or of the Constitution or laws of the
United States of America, shall be admitted in evidence against the accused on the
trial of any criminal case.‖ Tex. Crim. Proc. Code Ann. § art. 38.23 (West).
Texas law does not recognize the inevitable-discovery doctrine, which
would permit admission of evidence obtained in an unlawful search if such
evidence would later have been obtained lawfully. In Daugherty, the court of
criminal appeals confirmed that, if evidence was obtained illegally under article
38.23(a) of the code of criminal procedure, it must be excluded. State v.
Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App. 1996). No exception exists for
evidence that later might have been obtained lawfully. State v. Daugherty, 931
S.W.2d at 269. Thus, unless evidence is obtained legally with a search warrant or
through one of the carefully-crafted exceptions to the warrant requirement, the
evidence must be excluded.
36 Likewise, the Court of Criminal Appeals has rejected an effort to broaden
the good-faith exception using federal precedent, and it has refused to adopt federal
exceptions inconsistent with the text of our statutory exclusionary rule. Howard v.
State, 617 S.W.2d 191, 193 (Tex.Crim.App.1979) (op. on reh'g) (declining to
adopt federal good-faith doctrine of Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct.
2627, 61 L.Ed.2d 343 (1979)); see also Daugherty, 931 S.W.2d at 270 (―But
Article 38.23 already contains one express exception, see Subsection (b) thereof,
and according to the rules of statutory construction, where a statute contains an
express exception, its terms must apply in all cases not excepted.‖); id. (―This
construction is based on the express language of Article 38.23, not on blind
obedience to United States Supreme Court decisions.‖). Based on these precedents,
we hold the good-faith exceptions of do not apply to the Texas exclusionary rule.
Douds v. State, 434 S.W.3d 842, 861-62 (Tex. App.—Houston [14th Dist.] 2014),
petition for discretionary review granted (Sept. 17, 2014).
1. Analysis
Officers seized items from Appellant prior to the issuance of a search
warrant for those items. The State stipulated to Appellant‘s standing to challenge
the seizure of the items. (R.R. Vol. 2 pg. 37). Appellant proved at the hearing that
the items were seized prior to the issuance of the search warrant. Therefore, the
37 burden shifted to the State to prove that the seizure fell within one of the
―specifically defined and well-established‖ exceptions to the warrant requirement.
Although the State did not specifically set out an exception to the warrant
requirement, the State seemed to suggest that seizure of items for the sole purpose
of holding them until a warrant could be obtained is legally different than
searching the item upon seizure. Appellant has found no authority providing for
that ―specifically defined and well-established‖ exception to the warrant
requirement.
The closest exception to that assertion is the ―exigent circumstances‖
exception.
However, Officer Weatherford asserted no ―exigent circumstances‖ in her
decision to seize the evidence from Appellant and to remove them to the evidence
locker at the SSPD. She merely asserted that since she believed them to be
evidence, she seized them. Officer Young did assert the possibility of the
contamination of the evidence. However, he fell well short of establishing the
factors necessary for that exception.
The McNairy court identified five factors relevant to a reasonable
determination by the searching officers that evidence might be destroyed or
removed before they obtained a search warrant: (1) the degree of urgency involved
and the amount of time necessary to obtain a warrant; (2) a reasonable belief that
38 the contraband is about to be removed; (3) the possibility of danger to police
officers guarding the site of the contraband while a search warrant is sought; (4)
information indicating the possessors of the contraband are aware that police are
on their trail; and (5) the ready destructibility of the contraband and the knowledge
that efforts to dispose of narcotics and to escape are characteristic behavior of
persons engaged in narcotics trafficking. Ramirez v. State, 105 S.W.3d 730, 744
(Tex. App.—Austin 2003, no pet.), citing McNairy v. State, 835 S.W.2d 101, 106–
07 (Tex.Crim.App.1991) and United States v. Rubin, 474 F.2d 262, 268 (3d
Cir.1973).
The trial court did not make a finding of ―exigent circumstances,‖ nor
address the factors normally associated with that finding. (C.R. pg. 54-57).
Furthermore, the trial court‘s finding that officers at the scene had ―good
reason to believe‖ that the person they were dealing with was the suspect is not
supported by the record. The officers could point to no evidence as to why they
began to believe that the person was the suspect. The State presented no witness
that explained how they came to that conclusion. The evidence showed merely
that one officer had a ―gut feeling,‖ another officer thought someone started calling
him ―Tony,‖ and another had a firm belief but could not explain how that came to
be.
39 Also, the trial court‘s finding that the officers were acting in ―good faith‖
when they seized the items is of no consequence. The good faith exception to the
warrant requirement does not apply in Texas.
Therefore, the State failed to carry its burden of proof that the seizures fell
within a ―specifically defined and well-established‖ exception to the warrant
2. Harm
The error here is constitutional in nature because it stems from a violation of
the United States Constitution. The items seized were used by the State to link
Appellant to the crime through matching Ms. Crayton‘s DNA contained in blood
stains on those items taken from Appellant without a warrant. As previously
discussed, this physical evidence was very important to the State‘s case and,
therefore, necessarily impacted the trial court‘s decision regarding guilt.
Consequently, this Court should reverse the judgement of conviction and
remand this case to the trial court for a new trial.
B. Improper Execution of Search Warrant
The officers executing the search warrant did not have jurisdiction to
conduct the search and seizure of the evidence. The State failed to prove that the
execution of the search warrant was assisted by an officer with proper jurisdiction.
40 Article 18.04 (3) requires that ―[a] search warrant issued under this chapter
shall be sufficient if it contains the following requisites:
…
(3) that it command any peace officer of the proper county to search
forthwith the person, place, or thing named; …‖
Tex. Crim. Proc. Code Ann. § art. 18.04 (West).
The Court of Criminal Appeals has held that an officer, executing a search
warrant outside of his jurisdiction, must be assisted by an officer with jurisdiction
at the location of the execution. Keen v. State, 626 S.W.2d 309, 313 (Tex. Crim.
App. 1981 overruled on other grounds), citing Reynolds v. State, 506 S.W.2d 864,
864 (Tex. Crim. App. 1974) and Gilbert v. State, 493 S.W.2d 783, 783 (Tex. Crim.
App. 1973).
Here, the items were seized pursuant to the search warrant in Smith County,
Texas. (R.R. Vol. 2 pg. 172). The officers that executed the search warrant were
commissioned by the Sulphur Springs Police Department having no jurisdiction in
Smith County, Texas. The State failed to prove that a peace officer with
jurisdiction in Smith County, Texas assisted in the execution of the search warrant.
Therefore, the warrant was executed illegally and the trial court erred in overruling
Appellant‘s Motion to Suppress those items.
41 Considering the nature of the items seized and the State‘s use of those items
at trial, the harm associated with the error is obvious. The items were used to
develop Appellant‘s DNA that was matched to the murder weapon. (R.R. SX-
92B). Also, the fingernail clippings of Appellant had the victim‘s DNA on them.
(R.R. SX-92B). Appellant‘s DNA was used to match him to clothing items that
had the victim‘s blood on them. (R.R. SX-92B). The admission of this evidence
was particularly damning to Appellant and was significant in the trial court‘s
finding of guilt.
Therefore, this Court should find the error harmful and reverse the judgment
of conviction and remand the case for a new trial.
CONCLUSION AND PRAYER
It is for the reasons contained herein that Appellant would respectfully pray
that this Court of Appeals for the Sixth District reverse the judgment of sentence of
the Appellant and remand the case to the 8th Judicial District for retrial of the case
or alternatively of the punishment phase.
42 Respectfully submitted,
/s/ Martin Braddy Martin Braddy Attorney for Appellant SBN 00796240 121 Oak Ave., Suite A Sulphur Springs, Texas 75482 (903) 885-2040 (903) 500-2704 fax
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to 8TH Judicial District Attorney, Will Ramsay, on this
the 26th day of April, 2015.
/s/ Martin Braddy Martin E. Braddy
43 WORD COUNT CERTIFICATION
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
7,912 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
Tony Dewayne Crayton v. State (Tony Dewayne Crayton v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.