author: JIM R. WRIGHT, Justice.

text:
    Milo EADEN, Appellant, v. STATE of Texas, Appellee.
    No. 11-03-00405-CR.
    Court of Appeals of Texas, Eastland.
    Feb. 10, 2005.

      Milo Eaden, Lubbock, pro se.
    Al Schorre, District Attorney, Eric Kale-nak, Assistant, Midland, for appellee.

      Panel consists of: ARNOT, C.J., and WRIGHT, J„ and McCALL, J.
   Opinion

JIM R. WRIGHT, Justice.

Milo Eaden entered pleas of guilty to three counts of delivery of cocaine. There were no plea bargain agreements. The trial court convicted appellant of the three counts and assessed his punishment at 10 years confinement for each offense. Appellant’s counsel has filed a motion to withdraw as appellate counsel and has accompanied the motion with a frivolous appeal brief. See Anders v. California,, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We grant appellate counsel’s motion to withdraw and affirm the judgment of the trial court. Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

We take this opportunity to set forth this coui't’s position when court-appointed appellate counsel claims that an appeal is frivolous. All references to counsel in this opinion refer to court-appointed counsel only.

An indigent defendant is entitled to the effective assistance of counsel on appeal. Yates v. State, 557 S.W.2d 115 (Tex.Cr.App.1977). The law requires that court-appointed appellate counsel file a brief on behalf of appellant. Anders v. California, supra.

If counsel makes a professional, conscientious examination and evaluation of the record and determines that an appeal is wholly frivolous, counsel should so advise the appellate court and request permission to withdraw as counsel on appeal. Anders v. California, supra. A wholly frivolous appeal is one that “lacks any basis in law or in fact.” See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n. 10, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). We resolve doubtful issues in appellant’s favor. See McCoy v. Court of Appeals of Wisconsin, supra.

Counsel must file a brief in support of the motion to withdraw. In the brief, counsel must make references to the appellate record as well as to any applicable statutes, rules, and cases that lead counsel to the conclusion that the appeal is frivolous. Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.-Waco 2001, no pet’n). The brief must contain references to anything in the record that might arguably support the appeal, even though counsel believes that the appeal is frivolous. Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991).

Counsel is not required to make arguments that would not be made on behalf of a client who has retained counsel for the appeal; counsel is not required to make arguments for which there is no merit. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). If counsel concludes that there are no arguable grounds for appeal, then counsel should so state and should make references to the record, statutes, and cases which support that conclusion. Stafford v. State, supra; High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978). When discussing the record, counsel must discuss the evidence introduced at trial and must provide the appellate court “with ready references to the record.” Stafford v. State, supra at 510 n. 3; High v. State, supra. Conclusory statements in the brief are insufficient. Anders v. California, supra; High v. State, supra; Currie v. State, supra.

Counsel must furnish a copy of the motion to withdraw and a copy of the brief to appellant and must advise appellant of his right to review the record and to file a pro se brief. In this court, the clerk will notify appellant of the time allowed for him to file a pro se brief in which he may raise any points that he chooses. Anders v. California, supra. Counsel must certify or otherwise show this court that appellant has been furnished with a copy of the motion and brief and that appellant has been advised of his right to obtain the record and to file a pro se brief.

After appellant has raised the points that he wishes to raise or the time has passed for him to do so, the appellate court must conduct an independent examination of the proceedings and determine whether the appeal is wholly frivolous. Anders v. California, supra. If the court finds that the appeal is wholly frivolous and that there are no arguable grounds for appeal, it will grant the motion to withdraw and affirm the judgment of the trial court. Anders v. California, supra. If the court determines that there are arguable grounds, it will abate the appeal and remand the cause to the trial court with instructions that the trial court appoint new and different counsel to represent appellant on appeal to present those arguable grounds, as well as any others that new counsel might wish to present. Stafford v. State, supra. We will not make a decision on the merits of any issue, except to determine that an appeal is wholly frivolous and that there either are or are not arguable grounds for appeal, in the absence of the appointment of such counsel. Anders v. California, supra; Stafford v. State, supra.

In this case, appellant’s counsel has filed a motion to withdraw. Counsel has accompanied the motion with a brief in which he concludes, after a professional and conscientious examination and evaluation of the record, that the appeal is wholly frivolous and that there are no arguable grounds for appeal. Counsel has furnished appellant with a copy of the brief and motion and has advised him of his right to file a pro se brief. A pro se brief has not been filed within the time allowed, and no extensions have been requested. Counsel has complied with Anders. Although not required to do so, the State’s attorney has filed an answer to the motion to withdraw. In the State’s answer, it acknowledges the extent of the review set forth in the Anders brief and the propriety of the conclusion reached by appellant’s attorney. We find the response of the Midland County District Attorney’s Office to be very helpful and would suggest that other prosecutors follow this prosecutor’s lead and example, with the exception of those portions of the answer which would place continuing burdens upon appellant’s counsel after counsel has been allowed to withdraw.

Following the procedures outlines in An-ders, we have performed a full examination of the proceedings and have determined that the appeal is wholly frivolous and that there are no arguable grounds for appeal. The record shows that appellant entered pleas of guilty and that he testified that he delivered the cocaine on the three occasions as alleged.

Counsel’s motion to withdraw is granted, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    Barbara Bell JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00043-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 22, 2004.
    Decided March 3, 2005.

      Clifton L. “Scrappy” Holmes, Holmes Law Office, PC, Longview, for appellant.
    Randal Lee, Criminal Dist. Atty., Linden, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

As midnight neared in the Johnson home in rural Cass County, after an evening of drinking and arguing with her husband, Barbara Bell Johnson killed him by shooting him once in the back. She maintains, however, she acted in self-defense. From her conviction and fifteen-year sentence, Johnson appeals, urging two points of error: she asserts the trial court erred in overruling, first, her motion to suppress evidence obtained during the warrantless investigation inside her home and, second, her motion for directed verdict. We hold (1) overruling the motion to suppress was error as to only a few items of evidence and was harmless, and (2) the trial court properly overruled Johnson’s motion for directed verdict. Thus, we affirm the judgment.

1. Overruling the Motion To Suppress Was Harmless Error

We first review the suppression issue. Johnson argues the court erred by failing to suppress evidence which was obtained from inside the Johnson home by sheriffs investigators during the third entry of the home by officers that night. Because (a) out of the three entries into the home that night by officers, (b) the first two were permissible under the emergency doctrine, authorizing the admission of evidence in plain view during those two entries, and (c) requiring exclusion of only the few items of evidence actually discovered during the excessively broad search during the third entry or arising therefrom, (d) which admission of evidence was harmless.

a. There Were Three Distinct Entries

A proper analysis of this issue requires us to focus on events starting with the initial report of the shooting. Johnson called 9-1-1 shortly before midnight to report she had shot her husband. Though the Johnson home lies in the sheriffs jurisdiction, outside the City of Atlanta, the closest officer at that moment was Atlanta police officer Eric Jones, who became the first officer on the scene. Jones met Johnson at her front door, while she was still on the telephone with the 9-1-1 dispatch operator. Johnson told Jones she had shot her husband. Jones handcuffed her and placed her in his squad car. He then entered the house and made a proper protective sweep of the house. While doing so, he saw the decedent lying in the living room, could not find a pulse, and concluded he was likely dead. Jones also, during that sweep, saw the pistol on the kitchen counter and left it undisturbed. While the record is silent on exactly what Jones saw during his protective sweep of the house, his protective sweep required him to enter and perform a quick visual scan in each room of the house.

Once he completed his sweep, Jones then left the house and called paramedics. On their arrival, the paramedics entered the house with Jones and confirmed that Mr. Johnson was, indeed, dead. Jones and the paramedics then left the house. About fifteen minutes later, investigators arrived from the sheriffs office, and Jones left the scene after transferring Johnson to a car of one of the investigators.

Copeland arrived at the residence at approximately 12:40 a.m. and entered the house, where he found two other sheriffs office investigators already inside: Dale Gentry was looking around, and John Spann was taking photographs. During this entry of the home by the three sheriffs officers — the third entry of the home by a law enforcement official that night— photographs were taken showing the location and condition of the body and views of various rooms of the house and various blood deposits. Notes and measurements were also taken, from which a diagram was made of the basic floor plan of the house showing the locations of the body, the blood deposits, the gun, and — notably for the purposes of this opinion — a single spent shell casing. The State used these pieces of evidence to describe to the jury the immediate crime scene and much of the rest of the home’s interior. Also during this third entry, officers seized the gun and the empty shell casing as evidence. Based on this entry, there was extensive testimony from Copeland about the location of blood spatter and smears, in connection with the State’s suggestion that Mr. Johnson was shot in the back while sitting in a chair, but apparently not leaning against the chair back. Thus, during the first day of trial, and before the suppression healing later that afternoon, all of this evidence was before the jury.

The parties agree that Jones was justified in the first entry of the home that night, under the emergency aid and protective sweep doctrines, to determine whether anyone inside the house needed assistance or endangered anyone else. The parties also agree that Jones and the two paramedics were justified in the second entry into the house to confirm the death of Mr. Johnson. What was seen in plain view during those two legitimate entries was properly the subject of testimony by the individuals who participated in those entries.

The parties disagree, however, about evidence obtained during the third entry into the house. Once the emergency and protective sweep exigencies had ended — that is, after the second entry — law enforcement and medical personnel withdrew from the home. The question before us -involves the legitimacy of the subsequent, third entry of the home by sheriffs personnel and the scope of their legitimate evidence-gathering powers during that third entry.

The State argues on appeal that because the evidence collected during the third entry into the home was in plain view during the prior, justified entries, it could lawfully be seized at that later time. As to most of the disputed evidence, we agree.

b. Evidence Was Admissible If in Plain View During First Two Entries

Both the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution forbid unreasonable searches and seizures. U.S. Const, amend. IV; Tex. Const. art. I, § 9. Warrantless searches are per se unreasonable unless they fall under one of a few exceptions. Brimage v. State, 918 S.W.2d 466, 500 (Tex.Crim.App.1996) (plurality op. on reh’g); Kelly v. State, 669 S.W.2d 720, 725 (Tex.Crim.App.1984).

Under the emergency doctrine exception, police officers are not barred from making . warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Mincey, 437 U.S. at 392, 98 S.Ct. 2408; Janicek v. State, 634 S.W.2d 687, 690-92 (Tex.Crim.App.1982); see Laney v. State, 117 S.W.3d 854, 861 (Tex.Crim.App.2003) (exception applies if officer has immediate, reasonable belief of need to protect or preserve life or avoid serious injury). During an emergency or protective sweep of otherwise private premises, officers may seize any evidence that is in plain view and readily appears to be evidence relevant to a criminal investigation. Laney, 117 S.W.3d at 862. At the time Jones first entered the residence, he had been told that a person had been shot. Thus, he had the authority under that doctrine to enter and determine whether anyone was in need of immediate aid.

A “protective sweep” is a “quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” Maryland v. Buie, 494 U.S. 325, 328, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); Reason v. State, 12 S.W.3d 813, 815 (Tex.Crim.App.2000). Jones had just arrested Johnson, and although she had admitted shooting her husband, in such a situation we agree the officer would have the authority to execute a sweep of the premises in the interest of his own safety and that of others. Jones could have testified about anything he saw during the course of his two entries under the emergency doctrine, including his protective sweep of the home’s interior, and he could have, at that time, seized apparent evidence in plain view. See Berry v. State, 579 S.W.2d 487, 490 (Tex.Crim.App.1979); Ramirez v. State, 105 S.W.3d 730, 746 (Tex.App.-Austin 2003, no pet.).

The State asserts that the “plain view” doctrine justified deputies’ actions in re-entering the premises and conducting their investigation. The plain view exception requires that “(1) law enforcement officials have a right to be where they are, and (2) it be immediately apparent that the item seized constitutes evidence.” Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). The question is whether the deputies’ subsequent seizure of evidence, during the third entry, was constitutionally permissible based on plain views obtained during the first two entries.

Strikingly similar facts to those at hand are found in a 1986 opinion from one of our sister courts of appeals. See Shoaf v. State, 706 S.W.2d 170, 174-75 (Tex.App.Fort Worth 1986, pet. refd). In Shoaf, a husband shot his wife in a domestic dispute, resulting in an emergency entry into the home, followed about forty-five minutes later by the challenged subsequent warrantless entry by different law enforcement personnel, who seized evidence and documented the scene of the shooting using photography and observations which led to a diagram of the scene. The appellate court found the evidence thus obtained admissible. It reasoned that the initial, emergency entry was lawful and the subsequent entry was “a valid continuation of the initial search.” Id. at 175. The court did point out that, at the time of the subsequent entry, the husband had not then been found and could have been a victim, rather than the shooter. But it also agreed that the activities during the subsequent entry were lawful administrative duties incidental to the initial entry. Id. While we wonder whether in Shoaf the absence of the husband provided some continuing exigency which justified the subsequent entry to catalogue those items of evidence in plain view, we agree that the subsequent entry did not further intrude into the protected zone of privacy of the surviving homeowner, Mr. Shoaf. In other words, the seizures during the subsequent entry did not come from a more extensive search beyond the scope of the plain view of the officers initially entering the premises during the exigency, and were therefore lawful.

To the same effect is an instructive 1995 opinion on point from the First Court of Appeals. See Forbes v. State, No. 01-94-00428-CR, 1995 WL 241722, 1995 Tex.App. LEXIS 878 (Tex.App.-Houston [1st Dist.] Apr. 27,1995) (not designated for publication) (vacated & remanded on other grounds), see 1995 WL 679108, 1995 Tex.App. LEXIS 2872 (Tex.App.-Houston [1st Dist.] Nov. 16, 1995, pet refd) (not designated for publication). Though Forbes is not authority, we find it helpful because of its reasoning and persuasive effect. The concept there articulated is appealing: once the privacy of a residence has lawfully been invaded during an exigency, it makes no sense to require a warrant for other officers to enter and complete what officers on the scene could have properly done. And in recognizing the appeal of that concept, we also recognize the vital importance of clearly maintaining the distinction between seizure of evidence in plain view — which is constitutionally permissible — and a new, more intrusive search — which is impermissible.

We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, supra, [436 U.S.] at 509-510[, 98 S.Ct. 1942, 56 L.Ed.2d 486]. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Wayne v. United States, 115 U.S.App. D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michi gan v. Tyler, supra, at 509-510[, 98 S.Ct. 1942]; Coolidge v. New Hampshire, 403 U.S., at 465-466[, 91 S.Ct. 2022],... But a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation,” Terry v. Ohio, 392 U.S., at 25-26[, 88 S.Ct. 1868]....

Mincey, 437 U.S. at 392-93, 98 S.Ct. 2408 (footnotes omitted). A later warrantless search of private property, detached from an earlier lawful entry or exigency, cannot support admission of the later-discovered evidence. Mich. v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978).

The United States Supreme Court cases of Michigan v. Clifford and Michigan v. Tyler are instructive on the admissibility of evidence seized during the third entry into the Johnson home. See Mich. v. Clifford, 464 U.S. 287, 296, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984); Tyler, 436 U.S. at 511, 98 S.Ct. 1942. Tyler upheld a warrantless search for potentially dangerous hot spots in a burned furniture store which search had begun as the final flames were being doused. The search had been temporarily suspended because of smoke and darkness and had been resumed at dawn. The court in Tyler determined that the dawn search was nothing more than a continuation of the lawful search for current fire danger. See Tyler, 436 U.S. at 511, 98 S.Ct. 1942. Clifford, by contrast, held inadmissible certain evidence discovered in a partially burned home during entry into the home after the emergency was over. See Clifford, 464 U.S. at 298-99, 104 S.Ct. 641.

We believe this issue is best analyzed focusing, not on the fact of the subsequent entry, but on the nature of the rights . sought to be protected by the Fourth Amendment, and clearly separating what constituted a search from what constituted a seizure. From that perspective, it becomes clear that subsequent seizure of evidence already discovered during an exigent search does not further invade privacy rights and therefore is constitutionally permissible.

[W]hen a police officer has [lawfully] observed an object in “plain view,” the owner’s remaining interests in the object are merely those of possession and ownership, see Coolidge v. New Hampshire, [403 U.S. 443,] 515[, 91 S.Ct. 2022] ... (White, J., dissenting). Likewise, it reflects the fact that requiring police to obtain a warrant once they have [lawfully] obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a “needless inconvenience,” 403 U.S. at 468, [91 S.Ct. 2022] that might involve danger to the police and public. Ibid. We have said previously that “the permissibility of a particular law enforcement practice is judged by balancing its intrusion on ... Fourth Amendment interests against its promotion of legitimate governmental interests.”

Tex. v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

While the entrance to a home is to be carefully guarded, the act of crossing the threshold into the home does not necessarily control the analysis; rather, the question is the discovering officer’s right to be where he or she is when the object is seen in “plain view.” See Washington v. Chrisman, 455 U.S. 1, 8-9, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982) (officer had right to stay at arrested individual’s “elbow,” so officer’s presence inside or outside of dormitory room’s threshold while individual was inside room, from which officer saw drug-related items in plain view, was immaterial). Also, the right to be present is not necessarily limited to just the officer or officers who actually dealt with the exigency allowing the original entry, but may extend even to officers that have a different function from the original entrants. Tyler, 436 U.S. 499, 98 S.Ct. 1942 (firefighters on premises to extinguish fire, different fire department official entered and seized visible evidence).

Precedents from other states are consistent with allowing a subsequent seizure of evidence lawfully discovered earlier. See Alward v. Nev., 112 Nev. 141, 912 P.2d 243, 250 (1996) (evidence in plain view during officers’ initial emergency intrusion into tent were lawfully seized, but not items discovered during general search); Ore. v. Anderson, 42 Or.App. 29, 599 P.2d 1225, 1228-30 (1979) (approving “fruit” of subsequent entry about three hours after original entry, by officers responding to initial shooting report, with purpose “to pictorially preserve the crime scene prior to removal of the victim and to prevent accidental or intentional destruction of evidence”).

Therefore, we hold that the subsequent seizure, by deputies, of evidence in plain view during Jones’ original emergency sweep of the interior of the home was constitutionally permissible, and the evidence thus obtained was lawfully admitted. This holding, however, requires us to examine whether any challenged evidence was not in plain view during the first two entries, but was instead discovered during a search during the third entry. Any such evidence was erroneously admitted.

c. Little Evidence Was Inadmissible

A trial court’s decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). The general rule is that an appellate court should afford almost total deference to a trial court’s determination of the historical facts supported by the record, especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor. Id. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We are also to afford such deference to a trial court’s ruling on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Villarreal, 935 S.W.2d at 138. We may review de novo those questions not turning on credibility and demeanor. Id.

In this case, however, the evidence is uncontroverted, and there are no factual issues to decide — only the application of the law to the facts as set out above. Under these facts, to the extent the deputies searched the home’s interior, there is no viable exception to the constitutional requirement that a search warrant be obtained. We conclude the failure to suppress some of the disputed evidence, as set out below, was error.

Certainly, most of the evidence was properly admitted. No objection was made to the admission of State’s Exhibits 1 (audiotape of 9-1-1 call), 18 (videotape of interview with Johnson), 20 (autopsy identification photograph of victim), 21 (autopsy report), 23 (ballistics report on the pistol), or 24 (trace evidence report on certain exterior surfaces of the deceased). Worth special note are State’s Exhibits 23 and 24 — derived from the investigation during the officers’ third entry into the residence — which were admitted after Johnson’s counsel affirmatively said he had “No objection” to their admission.

But, clearly “seized” during the third entry and challenged by Johnson’s continuing objection were State’s Exhibits 2 through 8, 10 through 12, 19, and 25, photographs taken by Spann inside the house during the third entry. Also obtained during the third entry and subject to Johnson’s objection were State’s Exhibits 9 (diagram of home interior showing locations of body, pistol, spent shell casing, and blood deposits) and 13 (the pistol). After a thorough review of the record, we conclude the trial court was within its discretion in finding that most of this evidence had been in plain view during Jones’ emergency sweep of the home and was thus lawfully seized during the third entry, except for the spent shell casing and evidence flowing from that casing. The shell casing was on the living room floor between a chair and the wall, not in Jones’ plain view during his emergency sweep, and thus appears to have been discovered during the sheriffs deputies’ investigation. That discovery was the result of a search that was broader than the scope of Jones’ plain view. Therefore, the spent shell casing — and the evidence arising from that— should have been suppressed in response to Johnson’s objections.

State’s Exhibit 9, the diagram of the home’s floor plan, showing where the shell casing was discovered by deputies, should not have been admitted without redacting the shell casing references. Also, those portions of the testimony of Copeland which were based on deputies’ observations of the shell casing during the third entry — consisting of a few relatively minor parts of his testimony — should have been excluded. State’s Exhibit 23, on the other hand, the firearm report which included a reference to the spent shell casing, would have been subject to exclusion or redaction, but was properly admitted when defense counsel affirmatively said, “No objection” to its admission.

d. Admitting Inadmissible Evidence Was Harmless

Under Texas law, having concluded the court should have at least in part granted Johnson’s motion to suppress, we are bound to conduct a harm analysis. See Tex.R.App. P. 44.2(a). Since this admissibility issue deals with constitutional error, we must reverse unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Atkins v. State, 951 5.W.2d' 787, 797 (Tex.Crim.App.1997). We determine beyond a reasonable doubt that the shell casing could have had no meaningful impact on the jury findings.

Our analysis on this issue is controlled by the facts. Johnson admitted shooting her husband. Evidence about the condition of the victim’s body, and that he was shot in the back, was admitted without objection. There was also evidence about telephone conversations between the two of them and persons on their way to visit them shortly before the shooting, about the remarkable quantity of alcohol in the decedent’s blood, about the Johnsons’ relationship over a period of several years, and about their argument that night.

The only ultimate issue before the jury was whether the shooting was in self-defense. The lawful evidence showed the location and condition of the body, the pistol, the blood deposits, the photographic display of the scene of the shooting, the autopsy detailing the angle of the gunshot wound, the trace evidence report showing gunshot residue on the decedent’s clothing, and more. The improper evidence was simply where the spent shell casing came to rest behind a chair. That, in reality, provided nothing other than a basis for speculation about the location and orientation of the gun when the fatal shot was fired. Under these facts, we find the error to be harmless beyond a reasonable doubt. Therefore, we overrule this point of error.

2. Trial Court Correctly Overruled Motion for Directed Verdict

Johnson also contends the court erred by failing to grant her motion for a directed verdict. A point of error complaining about a trial court’s failure to grant a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996); Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993). When evaluating the legal sufficiency of the evidence, we should view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). When a defendant challenges the legal sufficiency of the evidence to support rejection of a defense such as self-defense, we examine all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense and also could have found against the defendant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991); Bowen v. State, 117 S.W.3d 291, 298 (Tex.App.-Fort Worth 2003, pet. granted).

In applying a legal sufficiency review, we are to consider all evidence which the jury was permitted, whether rightly or wrongly, to consider. Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004); Beltran v. State, 728 S.W.2d 382, 389 (Tex.Crim.App.1987).

In this case, Johnson points to evidence from an audiotape introduced by the State of her while in the squad car saying, “[H]e beat me, he beat me, he beat me. I couldn’t let him do that to me again.” She points out that the State’s evidence showed that Mr. Johnson’s blood alcohol level was 0.21, that officers testified Johnson had an injury to her arm, that Johnson and had contacted police at times over a period of several years complaining Mr. Johnson had threatened her — stating in one of the reports he had assaulted her in 1999, but she had not reported it at that time.

The evidence also shows that the victim was shot one time in the back, and photographs showing the location of the body were presented to the jury, along with photographs of the body and its location in relation to the various pieces of furniture and the few blood splatters on the chair. The State’s theory was that Johnson came up behind the victim while he was in his chair and shot him in the back, presumably while he was bending forward or starting to get up, and that he then fell forward onto the floor. The defense theory was that the decedent had risen from the chair and was coming toward Johnson and that, as she was moving away from him, she pointed the pistol blindly behind herself and fired. The evidence presented to the jury is not entirely one-sided in favor of Johnson. The State presented evidence before the motion for a directed verdict was urged that could be taken to support the State’s theory of the case, which would exclude Johnson’s defensive theory.

Therefore, the legal sufficiency challenge fails because evidence exists that can be used by a rational trier of fact to support the State’s theory of the case.

We affirm the judgment.

      . Johnson raised her complaint about the admission of the evidence shortly before trial commenced. No hearing was held at that time, but, pending a suppression hearing— which was held at the end of the first full day of trial — Johnson’s counsel secured a running objection to all of the evidence obtained by virtue of the entry into the home by sheriff's personnel after emergency and protective exigencies ended. Johnson's counsel twice confirmed the running objection when Ray Copeland, a sheriff's investigator, who entered the house later, began his testimony.

      . There was no evidence of any bullet hole through the chair.

      . Clearly, there is no "murder scene exception” to the warrant requirement. Flippo v. W. Va.. 528 U.S. 11. 120 S.Ct. 7, 145 L.Ed.2d 16 (1999); Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

      . The trial court noted in overruling the motion to suppress that "most of the evidence” had been in plain view to Jones during his emergency entries into the home.

      . These portions of Copeland’s testimony referred to the shell casing and thus should have been suppressed (all in volume three of the reporter’s record): page 89, lines 8-13; page 102, line 5-page 103, line 11; páge 113, line 21-page 114, line 3; page 114, lines 12-13; page 115, lines 1-25; page 119, lines 2-14; page 159, line 25-page 160, line 23.

      . Though not raised by the State, we note that Johnson may have waived her objection as to the shell casing when her counsel affirmatively said he had "No objection” to State’s Exhibit 23, which contained references to the shell casing “from the scene.” See Marling v. Maillard, 826 S.W.2d 735, 739 (Tex.App.-Houston [14th Dist.] 1992, no pet.).


text:
    Mickey Lee GORDON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-03-00121-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 3, 2005.
    Decided March 9, 2005.
    O.W. Loyd, Gilmer, for appellant.
    Christopher Parker, Martin E. Braddy, Asst. Dist. Attys., Sulphur Spring, for ap-pellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

It was early morning in Hopkins County, during the middle of 2002, when Sheriff’s Deputy Johnny Williams received a dispatch call to watch for a tractor-trailer truck being driven erratically westbound on Interstate 30. Williams spotted the truck and watched it weave and cross over both the “fog line” and the “center line” several times. After stopping the truck, Williams noticed that its driver, Mickey Lee Gordon, smelled strongly of alcohol, had slurred speech, and could not stand without swaying. Williams asked Gordon to perform two field sobriety tests on site. Gordon failed both and then refused to take an Intoxilyzer examination.

A Hopkins County jury found Gordon guilty of felony driving while intoxicated (DWI) and assessed punishment at ten years’ imprisonment. Gordon appeals, alleging (1) the evidence is legally and factually insufficient to support the jury’s verdict, and (2) Gordon’s prior DWI convictions were too remote to be used to enhance the offense to a felony. We affirm the judgment.

1. Legally and Factually Sufficient Evidence Supports the Judgment

Gordon argues that the evidence is insufficient because State Trooper George Harris testified he had not personally observed Gordon operating a motor propelled vehicle, had not conducted any field sobriety tests, and had not collected any breath or blood samples from Gordon. Deputy Williams, on the other hand, had personal knowledge of the facts and testified at trial. The evidence was both legally and factually sufficient.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

A person commits the offense of felony DWI if he or she operates a motor vehicle while “not having normal use of mental or physical faculties by reason of the introduction of alcohol” and has previously been convicted of at least two prior DWIs. See Tex. Pen.Code Ann. §§ 49.01(3), 49.04 (Vernon 2003); § 49.09 (Vernon Supp.2004-2005). Gordon stipulated to two prior convictions for DWI.

Considered in a light most favorable to the prosecution, a rational juror could have found Gordon guilty beyond a reasonable doubt. Deputy Williams saw Gordon’s truck weave several times and fail to stay within its lane. Deputy Williams smelled a strong scent of alcohol on Gordon and noticed his speech was slurred. Gordon failed both the walk-and-turn and one-leg-stand field sobriety tests administered at the scene. Deputy Williams was trained to administer the field sobriety tests. Additional field sobriety tests were conducted later at the sheriff’s office. Gordon’s performance on the one-leg-stand test and the walk-and-turn test, as well as numerous nonresponsive and incoherent statements he made, indicated that Gordon did not have normal use of his mental or physical faculties by reason of the introduction of alcohol. During the walk-and-turn test, Gordon almost fell over and had to catch himself on the counter during the test. The record includes a videotape of the sobriety tests conducted at the sheriff’s office.

Trooper Harris was asked by Deputy Williams to help with Gordon’s paperwork and to give Gordon the Intoxilyzer test. At the sheriff’s office, Harris detected a “fairly heavy” odor of alcohol coming from Gordon, noticed Gordon’s speech was slurred, and observed Gordon had bloodshot eyes. Gordon refused to provide a breath specimen for the Intoxilyzer test.

A rational juror could have found all of the elements of the offense proven beyond a reasonable doubt. Therefore, the evidence was legally sufficient.

In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App.2004)). If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996).

Although Trooper Harris did not have personal knowledge of Gordon’s operation of a motor vehicle, Deputy Williams did. Neither is the evidence too weak to support the finding of guilt beyond a reasonable doubt, nor is the contrary evidence strong enough that the State could not have met its burden of proof. The evidence is legally and factually sufficient. 2. Gordon Cannot Complain About the Remoteness of the Prior DWI Convictions

Gordon argues that one of the prior DWI convictions, used to jurisdictionally enhance the DWI offense to a felony, is too remote to be so used. Section 49.09 of the Texas Penal Code provides that, on proof of two prior DWI convictions, the offense is elevated to a third-degree felony, supporting a two- to ten-year range of punishment. Tex. Pen.Code Ann. § 49.09. The State alleged that Gordon had been convicted of two prior DWIs. Gordon signed a written stipulation to two prior convictions. In addition, the State presented evidence of another DWI conviction in 1995. Gordon argues that jurisdictional matters may not be waived and that parties may not confer jurisdiction on a court. See State v. Wheeler, 790 S.W.2d 415, 416 (TexApp.-Amarillo 1990, no pet.); cf. Tamez v. State, 980 S.W.2d 845, 847 (Tex.App.-San Antonio 1998), rev’d on other grounds, 11 S.W.3d 198 (Tex.Crim.App.2000) (holding that defendant could stipulate to prior DWI convictions).

The Texas' Court of Criminal Appeals has very recently addressed this exact issue. The requirement that the prior convictions not be too remote is not an element of the offense but “more akin to a rule of admissibility.” Smith v. State, 158 S.W.3d 463 (Tex.Crim.App.2005); see Weaver v. State, 87 S.W.3d 557, 561 (Tex. Crim.App.2002). In Smith, the Texas Court of Criminal Appeals held that, when a defendant stipulates to prior DWI convictions, the “appellant has lost the ability to complain about the remoteness of the prior conviction.” Smith, 158 _S.W.3d at 465. Further, the convictions were admissible under the current version of Section 49.09 because the State presented proof of another conviction in 1995. Since Gordon cannot complain about the remoteness of the prior convictions and the convictions would have been admissible, we overrule Gordon’s point of error.

We affirm the judgment of the trial court.

      . See Tex. Pen.Code Ann. § 49.09; see also Getts v. State, 155 S.W.3d 153 (Tex.Crim.App. 2005). The 1995 felony DWI conviction was within ten years of the latest date under subdivision (2). The two cases cited by Gordon for the proposition that both convictions must be within ten years of the current conviction involve the prior version of Section 49.09. See Smith v. State, 1 S.W.3d 261, 263 (Tex.App.-Texarkana 1999, pet. ref'd) (noting that we erred in Renshaw); Renshaw v. State, 981 S.W.2d 464, 467 (Tex.App.-Texarkana 1998, pet. ref'd). While the prior statute required one of the offenses alleged or proof of another intervening intoxication-related offense to be committed within ten years of the commission of the current offense, the amended statute requires that "the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2)” in order to bar use of the remote conviction. Compare Act of May 29, 1993, 73rd Leg., R.S., ch. ' 900, § 1.01, 1993 Tex. Gen. Laws 3697, amended by Act of May 25, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Gen. Laws 1214 (effective September 1, 2001); see Weaver, 87 S.W.3d at 561.


author: Justice CARTER.

text:
    Lamarcus SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00061-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted March 15, 2005.
    Decided March 16, 2005.
    Alex Tyra, Law Office of Alex Tyra, Longview, for appellant.

      Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Lamarcus Smith filed a pretrial application for writ of habeas corpus and contends the trial court erred by denying his request for either a bond reduction or a personal recognizance bond.

On October 23, 2004, Smith was arrested for (1) theft of property valued .at more than $50.00 and less than $500.00, (2) evading arrest, and (3) assault on a public servant. The magistrate who initially reviewed Smith’s case set Smith’s bonds at $2,500.00 on the theft charge, $5,000.00 on the evading arrest charge, and $25,000.00 on the assault charge. The State filed trial informations for the evading arrest and theft charges November 3 and 10, 2004, respectively. The State did not, however, indict Smith for the assault charge until January 27, 2005 — the same day on which Smith pled guilty to the misdemeanor charges in Gregg County’s County Court at Law # 1, and the 96th day following his arrest.

Four days later, Smith filed a pretrial application for writ of habeas corpus in the assault case. In the application, Smith asked the trial court to either reduce the bond amount on the felony charge or release Smith on a personal recognizance bond pursuant to Tex.Code Crim. PROC. Ann. art. 17.151 (Vernon Supp.2004-2005). The trial court conducted a hearing on Smith’s application February 3, 2005, at which Smith presented no evidence. The State’s only evidence consisted of the two judgments of conviction in the misdemean- or cases. After reviewing the evidence and hearing the arguments of counsel, the trial court denied Smith’s request.

Smith cites Tex.Code CRIM. PROC. Ann. art. 17.151 in support of his position that the trial court erred in denying his motion. That article provides in relevant part:

Sec. 1. A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being .detained within:
(1) 90 days from the commencement of his detention if he is accused of a felony;
(2) 30 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment in jail for more than 180 days;
(3) 15 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less....
Sec. 2. The provisions of this article do not apply to a defendant who is:
(1) serving a sentence of imprisonment for another offense while he is serving that sentence;
(2) being detained pending trial of another accusation against him as to which the applicable period has not yet elapsed; or
(3) incompetent to stand trial, during the period of his incompetence.

Id.

“The burden of proof is on the petitioner to show that bail is excessive.” Carraway v. State, 750 S.W.2d 12,13 (Tex.App.-Houston [14th Dist.] 1988, no pet.) (citing Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977)). The accused generally meets this burden by showing that he or she has made an unsuccessful effort to furnish bail in the amount set previously. Ex parte Willman, 695 S.W.2d 752, 754 (Tex.App.-Houston [1st Dist.] 1985, no pet.) (citing Ex parte Miller, 631 S.W.2d 825 (Tex.App.-Fort Worth 1982, pet. ref'd); Ex parte Williams, 467 S.W.2d 433 (Tex.Crim.App.1971); Ex parte Stembridge, 472 S.W.2d 155 (Tex.Crim.App.1971)). If the record shows the accused is unable to make bond, then the trial court should grant relief if the other requirements of Article 17.151 have been met. See, e.g., Ex parte Kemahan, 657 S.W.2d 433 (Tex.Crim.App.1983). If, however, the record does not also show the current bail setting is excessive, then the accused is not entitled to relief — even if the evidence otherwise shows the accused has been in custody in excess of the time frame provided by Article 17.151. Carraway, 750 S.W.2d at 13.

In Kemahan, the court ordered the defendant released on his personal recognizance when the record before the Texas Court of Criminal Appeals showed the accused “had not one cent available to him in jail, no relatives from whom to seek assistance in raising funds for a surety bond in any amount[,] and did not know where to contact the party who had possession of his one lone asset — a pickup truck.” Ker-nahan, 657 S.W.2d at 434. In Ex parte McNeil, the First Court of Appeals had before it a record in which the accused had filed an affidavit of indigency (which was approved by the trial court) and had testified that her financial circumstances had not changed when she filed for a bond reduction pursuant to Article 17.151. Ex parte McNeil, 772 S.W.2d 488, 490 (Tex. App.-Houston [1st Dist.] 1989, no pet.) (trial court erred in refusing to lower bond setting).

Turning to the facts of the case now on appeal, Smith was sentenced to 170 days in jail January 27, 2005, for both misdemeanor charges. Assuming he remained continuously confined from the date of his arrest, October 23, 2004, Smith would satisfy those sentences no later than April 10, 2005. There was some discussion at the hearing on Smith’s habeas application that the Gregg County sheriff was awarding prisoners “good time” credit toward misdemeanants’ sentences. There was, however, no evidence that Smith had either received such credit or that he had, in fact, completely satisfied his sentences as ordered by the County Court at Law # l. Nor was there any evidence that Smith had participated in a county inmate work program, through which he might earn additional credit against the misdemeanor sentences. See TexCode CRIM. PROC. Ann. art. 43.10 (Vernon Supp.2004-2005). The trial court, therefore, could have correctly determined that, under Section 2(1) of Article 17.151, Smith was not entitled to consideration for either a personal recognizance bond or a bond reduction under Section 1 of that same article because the evidence- did not show Smith had finished serving his misdemeanor sentences. Stated differently: the trial court could have properly found that Smith’s application was premature because there was no evidence Smith had finished “serving a sentence of imprisonment for another offense.... ” TexCode Crim. Proc. Ann. art. 17.151, § 2(1). We cannot, therefore, say the trial court erred by denying Smith’s application for writ of habeas corpus.

Moreover, even assuming that the provisions of Article 17.151, Section 1 were triggered (and assuming none of the statutory exceptions barred Smith from receiving a bond reduction or becoming eligible for a personal recognizance bond), Smith still cannot prevail on appeal for two key reasons. First, there is no evidence or testimony that Smith has previously attempted to make the current $25,000.00 bond. Contrast Ex parte Huff, No. 14-02-01069-CR, 2003 WL 1344843, at *3, 2003 Tex.App. LEXIS 2398, at *7-8 (Tex.App.Houston [14th Dist] Mar. 20, 2003, no pet.) (not designated for publication) (appellant presented evidence of inability to make current bond setting). Second, the record before us lacks evidence about Smith’s current financial situation. Although the trial court apparently approved Smith’s application for a court-appointed attorney, “ability alone, even indigency, does not control the amount of bail.” Ex parte Welch, 729 S.W.2d 306, 309-10 (Tex.App.-Dallas 1987, no pet.) (evidence of accused’s financial situation incomplete with respect to efforts to post bond; trial court did not err by denying request to reduce bond). Without any evidence of Smith’s available pecuniary resources, work history, family ties, length of residency in the community, criminal history, conformity with previous bond conditions, and/or the nature and circumstances of the offense committed, see Tex.Code Crim. Prog. Ann. art. -17.15 (Vernon Supp.2004-2005); Ex parte Watson, 940 S.W.2d 733, 734-35 (Tex.App.-Texarkana 1997, no pet.), this Court cannot even begin to determine what an appropriate bail setting might be. Contrast Ex parte Henson, 131 S.W.3d 645, 647-48 (Tex.App.-Texarkana 2004, no pet.) (evidence showed accused’s work history, family ties, assets, and ability to make bond). See also Op. Tex. Att’y Gen. No. H-1130 (1978) (“In our opinion, the bail must be reduced [pursuant to 17.151] to an amount defendant can pay and thereby secure his release. The amount of reduction necessary to release the defendant will depend on the facts of each case. A token reduction of one dollar will not comply with this section’s requirement that defendant ‘be released ... by reducing the amount of bail required.’ ”).

For the reasons stated, we affirm the trial court’s judgment.

      . As charged in Smith's case (cause number 2004-5111), theft is a class B misdemeanor. See Tex. Pen.Code Ann. § 31.03 (e)(2)(A)(i) (Vernon Supp.2004-2005). A class B misdemean- or is punishable by up to 180 days in jail and/or a $2,000.00 fine. Tex. Pen.Code Ann. § 12.22 (Vernon 2003).

      . As charged in Smith's case (cause number 2004-5111), evading arrest or detention is a class A misdemeanor. See Tex. Pen.Code Ann. § 38.04(b) (Vernon 2003). A class A misdemeanor is punishable by up to one year in jail and/or a fine of not more than $4,000.00. Tex. Pen.Code Ann. § 12.21 (Vernon 2003).

      . As charged in this case, assault on a public servant is a third-degree felony. See Tex Pen. Code Ann. § 22.01(b)(1) (Vernon Supp.2004-2005).

      . Smith was sentenced to 170 days in jail, with credit for time served, on both misdemeanor charges.

      . In Carraway, the Fourteenth Court of Appeals questioned the validity of TexCode Crim. Proc. Ann. art. 17.151. Carraway, 750 S.W.2d at 13. That court reasoned that, because (a) the Texas Speedy Trial Act was unconstitutional in Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App.1987), (b) the Texas Speedy Trial Act was part of a larger bill in which the Legislature adopted Article 17.151, and (c) the enacting language contained no severabil-i1y clause, that Article 17.151 might also be unconstitutional. The Texas Court of Criminal Appeals subsequently held. Article 17.151 does not unduly interfere with a prosecutor's discretion in violation of the separation of powers clause of the Texas Constitution; Article 17.151 was, therefore, according to our state's highest criminal court, constitutional. Jones v. State, 803 S.W.2d 712, 714-17 (Tex.Crim.App.1991).

      . Furthermore, whether to grant "good time” credit rests within the exclusive discretion of the sheriff. See TexCode Crim. Proc. Ann. art. 42.032(2) (Vernon Supp.2004-2005). And while the Gregg County sheriff may, as a general policy, award all prisoners such good conduct time, it is also within the sheriff's discretion to order any particular defendant's good conduct time be forfeited for misconduct. See TexCode Crim. Proc. Ann. art. 42.032(5) (Vernon Supp.2004-2005).