### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 134 -CR

M ic hae l P at r ic k K e nne dy , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF COM AL COUNTY , 22ND JUDICIAL DISTRICT NO. CR2006 -01 6 , HO NORAB LE GARY L. STEEL , JUDGE PRESIDI NG

O P I N I O N

Michae l Patrick Kenne dy

pleade d g uilty

to the crime of

ag g ravated assault of a police office r. See Tex. P enal Code A nn. §§ 2 2

. 0 1 (a) (def ining a ssault), 22.02(a) (def ining a g g ravated assault in relation to definition of assault found in a rticle 22.01), 22.02(b) (2)( B) (West Supp. 2007) (spec ifying that ag g ravated assault i s fi rst-deg ree felony if committed ag ainst public serva nt perf orming his official d u t ies). Af ter Ke nnedy

was a rre sted for the crime, the police obtained a

wa rr ant t o s earch Ken ned y ’s r e sid e nc e and se ize d v ari ou s it e ms f

ro m hi s p ro pe rt

y . Pr ior to t ri a l, Kenne dy filed a motion to suppress the e vidence that was seized unde r the war rant. The district court de nied the motion, and Kenne dy pleade d g uilty

. I n his first three issues on appea l, Kennedy

argue s that the dis tr ic t c ourt e rr e d by de nying his mot ion be c a us e the re wa s no pr ob a

ble c a us e to iss ue the wa

rr ant. I n h is f

ourt h is su e , h e a lle g e s th a t e ve n if the wa rr ant wa s su

pp or te d b y pr ob a ble

c a us e , s ome of

the e vid e nc e ob ta ine d f

ro m hi s h ome was ou ts id e the s c op e of the wa rr ant. I n h is2

fi na l is su e , K e nn e dy

argue s th a t the dis tr ic t c ourt e rr e d by a llo wi ng the State , d ur ingits re bu tta l, t o make arguments that exceede d the scope of per missibl e ar g ument. We will affirm the judg ment of the district court.

BACK GR OUND

L ate one night in Mar ch 2005, Offic er Richard Kunz observe d Kenne dy speedingon I -35 and initiat ed a traffic stop. Af ter Ke nnedy

pulled his vehicle ove r to the side of the road a nd stopped his car , Kunz approa ched Kennedy ’s car. Although who initiated the shooting is disputed, it i s und isp uted th at sh ort ly a ft e r K un z re a c he d K e nn e dy ’s c ar, mul tip le sh ots we re fi re d b y bo th Kenne dy and Kunz. During the ex chang e, Kennedy was shot three times, but Kunz was not injured. I n respo n s e t o a ca ll by

Kunz, severa l police offic ers a rrived on the scene , and Ke nn e dy was arreste d a

nd take n in to c us tod

y . A ft e r b e ingarr e ste d, Ke nn e dy wa s c ha rg e d w ith attempted ca

pital murder. See Tex. P enal Code A nn. §§ 15.01 (West 2003) (e x plaining c riminal

a tte mpt ), 19 .0 2 ( Wes t Su pp . 2 00 7) (d e fi nin g mur de r) , 1 9. 03 (a )( 1) (p ro vid ingthat pe rs on c omm its capital murde r if he “murder s a pea ce of fice r or f ireman w ho is acting in the lawful discha rg e of a n officia l duty

and who the pe rson knows is a pea ce of fice r or f ireman” ). S ev er al day s after

Kenne dy was a rre sted, a Te x as Rang er pr epar ed an a ffidavit for the purpose of

obtaining a

sear ch wa

rra nt to searc h Kenne dy ’s home. See Tex

. C o d e Crim. Proc. Ann. ar t. 18.01(b) (West Supp. 2007) ( requiringthat sworn af fidavit be filed w hen sea

rch w arr ant is r e qu e ste d) ; see also id. ar t
. 1 8

. 0 1 (a ) (W est Supp. 2007) (def ining se arc h war

rant a s “a w ritten order , issued by

a mag istrate and dir ecte d to a pea ce of fice r, co m m an d i ng him to search f or any proper ty or thing and to seize the same a nd bring it before such mag istrate”)

.3 Sho rt ly a ft e r t he a ff ida vit wa s su bmi tte d, the re vie w i n g

j u d g e iss ue d a

se arc h w a rr a nt, and law-e nforc ement office rs executed the war rant and seized various items f rom Ke n n edy ’s

re sid e nc e . Sub se qu e nt to the se izur e and a ft e r be ing ind ic te d, Ke nn e dy fi le d a mot ion to s up pr e ss the seized items. I n particula r, Kennedy contende d that the items should be suppressed be cause there was no proba

ble ca use to suppor

t the war rant, the information in the aff idavit supporting the w arr ant was stale, the police did not proper ly establish the re liability and cr edibility

of one of the source s of information m en t i o n ed in the af fidavit, and the police seized items that were outside the scope of the wa rra nt. I n ear ly J anuar

y 2006, a suppre ssion hearing was he ld. After he aringtestimony , the district court con cl u d ed t h at t wo ty pes of items seized wer e beyond the scope of the wa rra nt but denied the motion to suppress in re g ard to the r emaining items. Further , the cour t found that the

war rant wa s supported by

probable cause , that “[t] here was re liability in the aff idavit,” and that the information in the af

fidavit was not stale. Prior to the suppression hea ring , Ke n n ed y

ag ree d to plead g uilty

to the crime of ag g ravated assault of a police officer but also ag ree d to leave the t erms of the punishment “open.” I n other wor ds, the court wa s fre e to impose any punishment a llowable for the cr ime of ag g ravated assault of a police office r. I n addition, K ennedy reta ined the rig ht to appea l the district court’s ruling on his moti on to suppress if it ruled ag ainst him. See Tex. Co d e C rim. Proc. Ann. ar t. 44.02 (We st 2 00 6) (a llo wi ngc ri min a l de fe nd ant t o a pp e a l c on vic tio n) ; se e als o Youn g v . S tat e , 8 S.W .3d 656, 663 (Tex. Crim. App. 2000) (explaining that def endants may

enter into conditional pleas).4 Im m e d i a t e l y a f

t e r t h e c o u rtd e n i e d

h i s m o t i o nt o s u

p p r e s s , K e n n e dy p l e a d e d

g u i l t y. Approxim at el y

two months later, in Marc h 2006, a hea ring was he ld to determine Ke nnedy ’s punishment. After he aringtestimony from var iou s wi t n es ses, the district cour t sentence d Kenne dy to a

prison term of 75 y ear s. See Tex. P enal Code A nn. § 12.32 (West 2003) (explaining that person f

ound g uilty

of first-deg ree felony may be im prisoned for life or for any term betwe en 5 and 99 y ear s).

DI SCU SSIO N

Ke nn e dy ra ise s f ive iss ue s o n a

pp e a l. I n h is f ir st t hr e e iss ue s, Ke nne dy

e sse nti a lly

a sse rt s th a t th e se arc h w arr ant wa s not sup po rt e d by pr ob a ble c a us e and tha t th e dis tr ic t c ourt

sh ou ld there fore have g rante d his moti on to suppress the evidence seized from his home. I n his first issue, he g e ne ra lly

a sse rt s th a t in fo rm a tio n in the a ff ida vit did no t e sta bli shpr ob a

ble c a us e to s e arc h h is ho me . I n his se c on d iss ue , Ke nn e dy c on te nd s that the a ff ida vit do e s no t e sta

bli sh probab le c ause beca use it relies on mate rial misstatements and omissions. I n his third issue, Kenne dy contends that the af fidavit ca nnot establish probable cause beca use re levant portions of the a ffidavit we re ba sed on information t hat was stale at the time the war rant wa s issued. I n his fourth issue, Kenne dy argues that even if

th er e wa s p ro b able c ause to issue the w arr ant, some of the e vidence that was seized during the sear ch was bey ond the scope of the sear ch war rant. Finally , he contends that the district court e rre d by improperly allowing the State to prese nt, in rebuttal, argument conce rning who fire d the first shot during the shooting inc ident. As a c orollary to these ar g uments, Kenne dy asser ts that if this Court rules in his favor on any of his five issues, we should re v er s e t h e district cour t’s judgme nt and re mand the ca se for a new trial rathe r than re verse for a new puni s h m ent5

de te rm inatio n. B e c a

us e the fi rs t fo ur

iss ue s are re la te d, we wi ll a dd re ss t he m to g e the r a

nd a dd re ss Kenne dy ’s final issue sepa rate ly

. The Fir st F our Issues are Waived

At the ou tse t of thi s c a se , we no te the unus ua l natur e of thi s a pp e a l. As pr e vio us ly stated, Ke nnedy ’s first four issues are related to the evidenc e s ei z ed fr o m his home after the commission of the o ff

en s e. The State vig orously foug ht to preser

ve the r ight to introduce the evidenc e seized, and K ennedy pleade d g uilty

only afte r lea rning t hat the evide nce w ould not be suppressed. When makinghis ple a, Kenne dy was under the assumption, which was shar ed by the State, that he would be allowed to conte st that determination on appe al. Moreove r, both Kenne dy ’s and the State’s arg uments on appea l assume that Ke nnedy had the r ight to conte st the district court’s ruling , and neither party mentioned the conce pt of waive r. Howe ver, our revie w of re levant ca se law demonstrates that give n t h e n at u re of the e vidence Kenne dy arg ues should have be en suppre ssed, Ke nn e dy wa ive d h is r ig ht t o a

pp e a l th e dis tr ic t c ourt ’s ru lin g wh e n h e ple a de d guilty to t he c ri me of ag g ravated assault of a p o l ice of fice r, and w e ar e, ac cording ly , prohibited from a ddressing the merits of these c laims.

I n 2000, the court of criminal appea ls issued an opinion describing the circ umstances in which a defe ndant m ay appea l a trial court’s alleg edly err oneous ruling afte r plea ding guilty to the alleg ed off

ense. Y ou ng v . S tat e , 8 S.W .3d 656 (Tex. Crim. App. 2000). Although that case involved a def endant who ple aded guilty to a cr ime but did not enter into a plea- barg ain ag ree ment, the cour t develope d a sing le rule that applies in all situations in which a defe ndant pl eads guilty reg ardle ss of6

whether the plea w as the re sult of a plea ba rg ain. Id. at 666-67. I n p articular, the cour t he ld a s f oll ow s:

Whether ente red w ith or without an ag ree d rec ommendation of punishment by the State, a valid plea

of g uilty or nolo contende re “ waives” or for feits the rig ht to appeal a cla im of err or only when the judgme nt of g uilt was rende red inde pendent of , and is not supported by , the er ror.

Id. I n that case , Young filed a motion to suppress e vidence demonstrating that she wa s found to be in possession of coca ine, and the district c ourt denied the motion. Id. at 657. The a ppellate c ourt deter mined that Young had wa ived her rig ht to appeal t h e ru l ing by pleadingg uilty

to coca ine possession, id. , b ut t

he c ourt of c ri min a l a

pp e a ls c on c lud e d th a t th e ru lin g on the mot ion to s up pr e ss evidenc e wa s not independent of the offe n s e o f p ossession of a c ontrolled substance and that the

“ ju d g me n t w o u ld

n o t b e s u

p p o rte d w it h o u t t h e e v id e n c e” id. at 667. Acc ording ly , the cour t conclude d that the appe llate court should ha ve addre ssed the merits of the de fenda nt’s appea l. Id. W h en i n t er

p re t i n g t h e r ea s oning in Y

oung , s o me a

p p e ll a te c o u r ts h a v e d e te rmined that there must be a direc t nexus betwee n the er ror a nd the g uilt or innocence of the a ppellant re g arding the offe nse plea ded to. Se e Gu idr yv . S tat e , 177 S.W .3d 90, 93 (Tex. App

. — Ho u ston [ 1st Dist.] 2005, no pet.). F or example, more than one court ha s held that the judg ment of gui l t wa s not rende red inde pendent of

an alleg ed er

ror by a trial court when the a lleg ed er ror wa s the err oneous admission of evidenc e of the offe nse cha rg ed and w hen the judgme nt would not be supported without that evidenc e. See , e.g. , Brad sh aw v . S tat e , 4 0 S. W.3 d 6 55 , 6 60 (T e x. Ap p. —Sa n A nto nio 20 01 , p e t. r e f’ d. ); Ha rg

ro v e v . S tat e , 40 S.W .3d 556, 558-59 (Te x . Ap p .—Houston [14t h Dist.] 2001, pet. re f’d) . Often, this conc lusion has been r eac hed when the c rime to which the de fenda nt7

pleade d g uilty

to is d ru g p o s s es s ion and when the alleg edly improper r

uling is the a dmission of evidenc e of the drug s seized. See B radshaw , 4 0 S. W.3 d at 66 0 ( c on c lud ingthat a pp e llate c ourt

mus t hear m er i t s of appe al bec ause judg ment of g uilt of crime of posse ssion of marijuana w as not independe nt of trial cour

t’s ruling on motion to s uppress e vidence of marijuana found at B radsha w’s ho us e ); Ha rg

ro v e v . S tat e , 40 S.W .3d at 558-59 (c oncluding that plea wa s not independent of r uling

o nm o t i o nt o s u

p p r e s s b e c a

u s e t h e r e w o u l d

h a v e b e e nn o c a s e h a d

t r i a l c o u rta g r e e d

t o supp re ss evidenc e of drug possession). I n these c ases, the a lleg edly err oneous ruling s were not independent of the judgments because the admission of t he evidence e stablished at least one of the e lements of the cr imes alleg ed an d beca use there would be no evide nce of criminal ac tivity

if the eviden c e h a d

b e e ns u p p r e s s e d

. St a te d

d if f e r e n tl y , th e ju d g me n ts w o u ld n o t h a v e b e e ns u

p p o rted without the evidence

.

Howeve r, cour

ts have he ld that when ther e i s n o direc t nexus betwee n the alleg ed

err or and the judgme nt, defe ndants waive their rig ht to appea l the alleg ed er ror by enter ing a

plea of g uilty or nolo contende re. Se e Ra mi re z v . S tat e , 89 S.W. 3d 22 2, 23 2 ( Te x. Ap p. —Co rp us Chr ist i 2002, no pet.) (concluding that Ramirez waived r ight to complain a bout State’s failure to produce

e vid e nc e that in ve sti g a tor s h a d f ound no me dic a l pr oo f t

hat Ramir e z ha d s e xua lly pe n e tr a te d v ic ti m b e c a

u s e la c k o f e v id e n c e o f p e n e tr a ti o n h a d n o n e xu s to g u il t o r inn o c e n ce of of fe ns e c ha rg e d, wh ic h wa s a g g ra

vate d s e xua l a ssa

ult by c on ta c t) ; Fo un tai n v. Sta te , 79 S.W .3d 72, 74 (Tex. App.—Be aumont 2002, no pet.) (holdingthat ap p ell ant waive d rig ht to appeal r uling on motion to suppress evidence unde r Y oung ; c ourt noted that it was uncle ar f rom rec ord what evidence Fountain wa

nted suppresse d but ultim ately conclude d that ju d gm en t “w as re ndere d on theTh e State a lso re c ov e re d a g un c le anin g kit , tw o b ind e rs c on ta ini ngpa pe rw or k r e la tin g to 1 va ri ou s w e a po ns and bo dy arm or , s ome of

Ke nn e dy ’s no te s and

p a p e rw or k, and Ke nn e dy ’s pa ssp or

t; howeve r prior to the suppression hear ing, the State elec ted not to try to admit those items. Moreover, althoug h the district court denied Kenne dy ’s motion to s uppress in most respec ts, it di d suppress g as masks and filters rec overe d from Kenne dy ’s proper ty afte r concluding that those items were outside the scope of the sea

rch w arr ant. 8 ind e pe nd e nt” “ te sti mony

of De pu ty Pa sk e ,” wh ic h w a s a dmi ssi ble ); see al so Gu idr y , 177 S.W .3d at 93-94 (holdin g that appellant wa ived rig ht to appeal on g round that his counsel wa s ineffe ctive during plea ba

rg ain proc ess bec ause the re w as no n ex u s betwee n behavior complained of

and Guidry ’s dec ision to pl ead guilty sever al wee ks after

alleg edly ineffe ctive assistanc e). F o r th e r e a s o n s th a t f

o ll o w , w e b e li e v e th a t K e n n e dy ’ s a d ju d ic a ti o n of g uilt was independe nt of and not suppor ted by the district c ourt’s decision to deny his moti on to suppress the evidenc e seized fr o m h is pr operty and fur ther c onclude that the judg ment would have be en supported without the di sputed evidenc e. See H argrove , 40 S.W .3d at 558 (re asoning that when de termining if plea is indepe ndent of e rror , co u rt must consider “nature of the issue upon which the tria l court

ru le d” ). As a

re su lt o f t

he iss ua nc e of the se arc h w arr ant, the State re c ov e re d th e fo llo wi ngite ms fr om Ken ned y ’s pr op e rt

y : ammunit ion , a

n “ AK -4 7 s e mi- a

uto ma tic a ssa

ult ri fl e ,” ano the r s e mi- 1 automatic rifle , two semi-automatic ha ndg uns, a shotg un, a handgun, a fla re gun, a saf

e containing ammunition, a box containing ammunit i o n , a kevla r helmet, bullet-pr oof vests, and a metal plated wa ll.

Unlike other c ases in which appellate courts have addre ssed the mer its of an appe al by an individual who has plea ded g uilt y t o a cr i m e b u t asser ted that the trial c ourt err ed by not suppressing cer

tain evidenc e, none of

the items rec overe d from Ke nnedy ’s home have any bear ing9

on any of th e ele men ts of

the of fe ns e Ke nn e dy

ple a de d guil ty

to a nd do no t on

the ir ow n s e rv e to establish his guilt for the crime all eg ed. As discussed pr eviously , Kenne dy was c harg ed with the crime of ag g ravated assault of a police officer

. To establish Kenne dy ’s guilt, the State was re quired to prove that Kennedy “intentionally or knowing ly ” thre atene d Kunz “with immi nent bodily injury ,” Tex. Penal C ode Ann. § 22.01(a)( 2), knowing that Kunz was “a public serva

nt,” id. § 22.02(b)( 2)(B ). Fur ther, the St at e wa s require d to prove that Ke nnedy committed the offe nse while using or exhibi ting “ a d eadly

wea pon during the commission of the assault,” id. § 2 2. 02 (a )( 2) , a nd wh ile Kunz was “law fully

discharg ing” his official duty , id. § 22.02(b)( 2)(B ). None of the seized items w as used during the cr ime, nor we re the items found at the crime sc ene. F urther, none of the items helped e stablish any of the e lements of the of fense . They do not establish Kennedy ’s mental s t at e o n t h e night of the shooting or establish whe ther he intentionally

or knowing ly

assaulted Kunz. T h e items also have no be aringon whether Kenne dy kn ew t h at Kunz was a

police off

icer or whe ther Kunz was law fully perf orming one of his off

icial duties when he was assaulted. Finally , the items do not help establish whether Kenne dy was using a dea dly wea pon on the nig ht of the shooting. The e lements of the of

fense in question wer e established by the evidenc e collec ted from the crime scene , by the testimony of Kunz, a nd by the admission of a video re cordingmade by

a came ra mounted inside Kunz’s patr ol car . This evidence was a ll admissibl e. Kunz testified that in March 2005, he observe d Kenne dy speeding on I H-35. In response , Kunz activated his eme rg ency lights and f

ollowed the vehic le. Afte r Kunz activate d the lights, Ke nnedy moved his c ar to the left side of the hig hway

an d stopped his car

next t o a conc rete barr ier sepa rating the northbound and

so uth bo un d la ne s. Th e vid e o c on fi rmed th a t K un z did a c tiv a te his e me rg e nc y

lig hts and

did pu ll10

Kenne dy over. Kunz further te stified that afte r both ca rs had stopped, he exit ed h i s p atrol car and approa ched K ennedy ’s vehicle . Upon ar rival, Kunz asked to s ee Kenne dy ’s driver ’s license and proof of insurance . Acc ording to Kunz, rather than comply ing with this reque st, Kennedy rea ched do wn , p ull e d o ut a ha

nd g un , a nd po int e d it

a t K un z. A ft e r s e e ingthe we a po n, Kunz im me diate ly took cover

behind his patrol ca

r. Althoug h Kenne dy

disputes that he fire d the first shot, w hat is not in d isp ute is that a

sh oo t- ou t e ns ue d a

nd th at Kenne dy

sh ot s e ve ra l r ound s o f b ull e ts f ro m hi s handg un at Kunz. Kunz testi fi ed that afte r Ke nendy had fire d sever al shots from his handg un, K e n n e dy s w i t c h e d w e a p o n s a n d c o n t i n u e d

s h o o t i n g a tK

u n z a n d t h e p a t r o l c ar

w i t h a r i f l e . In addition, Kunz testi fied that Ke nnedy shot approxim ately

30 rounds from the r ifle. The video c onfirmed that Kunz approa ched Kennedy ’s car and that Kunz informed Kenne dy why he had be en pulled over an d as k ed Ke nnedy to produce his license and pr oof of in suranc e. The video also demonstrated that Kunz was we aringa police unif orm during the stop. Fu rt her, the video conf

irmed that shortly

afte r Kunz approa ched the car , both Kunz and Kennedy be g an s ho oti nga t on e ano the r. Ad dit ion a lly , the vid e o r e ve a le d th a t K e nn e dy fi re d nume ro us sh ots at Kunz and then switche d wea pons and that afte r switching wea pons, Kenne dy

stood in the doorway of his car and continued shooting

. I n addition to the prec eding evidenc e, other witnesses also tes t i fi ed and conf irmed that the we a

po ns de sc ri be d by Kunz we re re c ov e re d fr om the sc e ne of the sh oo tin g . F ur the r, the se witnesses testified reg arding the numerous bullet f rag ments that were rec overe d from Kunz’s patrol

car , which Kunz took cover behind during the shooting, a nd from the a

rea immediately

surrounding wher e the shooting took place.11 F or the re a so ns state d, we c on c lud e that K e nn e dy wa ive d th e fi rs t f

our i ssu e s o f h is appea l by pleadingg uilty

beca use his conviction was r ender ed indepe ndent of a nd not supported by the er ror a lleg edly

committed by

the district court.

Rebuttal Evidence

I n his f inal issue on appea l, Kennedy asser ts that the district court er red by allowing the State to make a

rg uments that exceede d the scope of per missibl e re buttal argument during the punis hme nt h e ari ngby

a llu din g to inf

or ma tio n tha t wa s not i n th e re c or d a nd by makin g argume nts that wer e not responsive to Kenne dy ’s closi ng argument. I n particula r, Ke nnedy

contends that a fter the State and the defe nse had rested their case s, the State impermissibly asser ted during its closing argument its contention that Kennedy had fire d the first shot. The a lleg edly improper a

rg ument

occur red immediate ly

afte r the State play ed a modifie d version of the videotape r eco rd ing of the sh oo tin g . T he mod if

ic a tio ns inc lud e d ma g nif

ic a tio n a nd oth e r e nh anc e me nts t o hi gh lig ht c e rt a in po rt ion s o f t

he vid e ota

pe . T he re le va

nt p or tio ns of the e xch ang e are a s f

oll ow s: [S tate]: And there’ s sever al showing s of this. The first her e is in rea l time. (Portion of State’s P-109 is play ed) [Sta te ]: Loo k, I wantyo u t o s tu dy who did s hoo t fi r st

. (Portion of State’s P-109 is play ed) [S tate]: Now we have g ot a shorter version, Judge, that is play ed at ha lf speed. (Portion of State’s P-109 is play ed) [S tate]: And the re’ s some demar cations if y ou look inside the car just to t he lef

t of the dr ive r’ s h e a d. Whe n th e of fice r b e g ins his re tr e a t, you wi ll s e e a

br ig ht f la sh12

lasting f or only a sing le video fr ame. [ D e f e n s e ] : Y o u r

H o n o r , m ay w e a

p p r o a c h , b r i e f

l y? [ T h e C o u rt ] : Y o um ay. (Video stopped) (At the be nch, on the r ecor d) [Defens e ]: Yo ur

Ho no r, we wo uld

ob je c t th a t c ouns e l ha s th e ob lig a tio n o f f ull y opening . This is not i n response to any thing that - - we cer

tainly haven’ t sugg ested that Offic er K

unz shot first or sec ond or whateve r. This is not - - this is not an issue that was litigated in this li tigation. We both - - we ha

ve g ot - - we have experts w hich we - - you know, by the kazoo about who fire d the first shot. This is not f air rebuttal. Your

Honor. I t goe s to a matter that’s not an issue. I t was never broug ht up in the case in chief a nd it was not broug ht up in the punishment procee dings by either side. Th is i s an atte mpt

to u se his a dv anta g e of be inga ble t o c los e on

top to respond to something that is not responsive and that is not fair r ebuttal, Your H onor. [S tate]: J udg e, I believe I am responding. He said that Off icer Kunz could have be en kil le d if [Ke nn e dy ] ha d r e a lly

wa nte d to kil l hi m. [The Court] : Objection over ruled. (Emphasis adde d.)

Kenne dy asser ts that arg ument conce rning who s hot first was improper beca use he

ma de no a sse rt ion that Kunz ha d fi re d fi rs t. Mo re ov e r, Ke nn e dy a sse rt s that arguin g that he sh ot f ir st was not an a

ppropriate response to the evidenc e he pr esente d, which indicate d that he mig ht have been at t em p ting to induce the offic er to shoot him. I n other wor ds, he ar g ues that his evidenc e demonstrating that he wa s seekingto provoke a re sponse from law enfor ceme nt does not bear on who shot first. Finally , Kenne dy contends that beca

use t he is sue of who initiated the shooting had not been a

rg ued duringthe State’s ca se-in-c hief, he did not introduce his expert repor t stating thatAlthough K ennedy was not a llowed to ha ve an a dditional arg ument to respond to the State’s 2 alleg edly improper c losing a

rg ument, he wa s allowed to introduce his expert repor t into the recor d as a bill of exception. 13 Kunz had actually fired first and fur ther c ontends that he wa s then prohibited from introduc ing the repor t in response to the State’s a ccusation. 2 I n making his assertion that the State’s argument was improper , Kenne dy relies on

case s defining limit ations on closing a rg uments during jury

trials and does not re fer t o case s

c on c e rn ingthe pr op ri e ty

of c los ing argume nts ma de duri ngbe nc h tr ia ls. F or the sake of

argume nt, we will assume that the sa me limitations apply

to bench trial s. To be prope r, closing argument must fall within one of the following perm i s s ible cate g ories: “( 1) summation of the evide nce; (2) r easona

ble deduc tion from the evidenc e; (3) answe r to a rg ument of opposing counsel; or ( 4) plea for law enfor ceme nt.” Pr im es v . S tat e , 154 S.W .3d 813, 814 (Tex. App.—For t Worth 2004, no pet.). Any argume nt t

hat e xce e ds the bo un da

ri e s o f t he pe rm iss ib le cate g or ie s is e rr or , b ut i t is on ly

reve rsible er

ror if, “ in light of the r ecor d as a w hole, the ar g ument is e x treme or manifestly

improper, violative of a ma

ndatory statute or injects ne w fa ct s , h armful to the a ccuse d, into the trial.” Fe lde r v . S

tat e , 848 S.W .2d 85, 91 (Tex. Crim. App. 1992). F or the re a so ns that fo llo w, we be lie ve that the State ’s argume nt a pp ro pr ia te ly

fa lls into the first three c ateg ories. F irst, during the punishment hear ing, K ennedy alluded to the idea that h e h a d n o tf i r e d t h e f i r s ts h o t , an d t h e S t a t e ’ s ar g u m e n t w a s , t h e r e f o r e , anan s w e r

t o t h a tt h e o r

y . In pa rt ic ula r, the fo llo wi nge xch ang e oc c ur re d w hil e Ke nn e dy

wa s c ro ss- e xami nin g Kunz:

[Defense ]: My

understandingis that y ou actua lly saw the ba

rre l of the we apon.14

[Kunz]: Y e s. [Defense ]: Th at y ou actua lly descr ibed looking dir ectly into the black hole of

the wea pon. [Kunz ]: Yes, Sir. [Defense ]: Had Mr. K ennedy squ ee z ed off a round at that point, while y ou wer e looking dire ctly

into the black hole of

the wea po n y o u p ro bably

wouldn’t be he re today

. Kenne dy further alluded to this possibili ty when questioning Kunz reg ardinga re port that he filled out af

ter the shooting . I n particula r, Kenne dy insinuated that Kunz drew his wea pon and fired his handg un befor e he he ard a ny g un shots, impl y ing that Kunz fired first. The r eleva nt po rt ion of the e xch ang e pr ov ide s a s f oll ow s: [Defense ]: An d that’s on Def endant’ s Ex hibit P -2. On De fenda nt’s Ex hibit P -1, wh ic h w a s th e oth e r s ta te me nt y ou g a ve that same da y , le t me a sk

y ou if y ou wo uld look at that first pag e of your nar rative. [Kunz ]: Uh-huh. [Defense ]: You st at e, “I t h en ra n” - - this is t owar ds the bottom of the third para g raph. “ Ithen ra

n for my life towar ds my vehicle on to the passeng er’ s side and to t he re ar p a sse ng e r’ s c or

ne r. ” I s th a t c or

re c t? [Kunz]: I be lie ve that is c or

re c t. [Defense ]: And then it follows and y ou make this statement . . . “As Iwas running betwee n my

patrol ca r and the suspect’s ve hicle I did not hear

any g un shots coming from the suspec t’s vehicle.” [Kunz ]: Yes.

. . . [Defense ]: And that was true, was it not? You di dn’t hear any g unshots coming f

rom15

the suspect’ s vehicle a s y ou ran f rom his vehicle to y our vehic le? [Kunz]: A s I

re c a ll I do no t r e me mbe r h e ari ngthe g un sh ots
. [Defense ]: I n both the repor t that y ou ty

ped .

. . and the statement of fac t witnessed and ty ped and sig ned by

y ou by the Texas Rang ers . . . ther e is no mention - - whe n y ou say “I ran f or my life towards my

vehicle,” there is no mention that y ou rea ched for your we apon almost immediate ly afte r leavingthe side of Mr. K ennedy ’s vehicle , is there? [Kunz]: A s I

re c a lle d at th e tim e , I

did n’ t r e me mbe r d oin g that. [Defense ] : I n both [ repor ts] . . . there is no mention that y ou drewy our we apon as y ou ra n b e tw e e n th e tw o v e hic le s. [Kunz ]: Ag ain, when I was making the statement Idid not reca ll drawing my wea pon at that time. [De fe ns e ]: Of

fi c e r, in b oth

[re po rt s] . . . you

make no me nti on

of the fa c t th a t sh or

tly afte r y ou depar

ted Mr. Ke nnedy ’s vehic l e b ef o re y ou arr ived at y our vehic le y ou stopped, turned towa

rds h i s v ehicle, a

nd discharg ed y our we apon. The re is no m e n t i o no f

t h a t , i s t h e r e ? [Kunz]: T he re is n o me nti on be c a us e a t th a t ti me I

did no t r e c a ll d oin g that.

. . . [D e f e n s e ]: B u t ha

v in g r e v ie w e d

th e v id e o e v e nd ay s a f

te r th e e v e n ts y o ud o r e a li ze that w ith re sp e c t to tho se ma tte rs I have de sc ri be d, that is the fa c t th a t y ou a c tua lly fi re d a s y ou

de pa rt e d h is v e hic le , th os e [state me nts ] Ig ue ss w ou ld n ot b e c e rt a inl y inc on sis te nt o r i na c c ur a te , w ou ld t he y no t? Second, the modified vide otape a nd the S tate’s arg ument conce rning the videotape constituted a summation of evidenc e that had previously been admitted. On the day before the modified tape was pl ay ed for the district court, the e ntire orig inal and unalter ed videotape was play ed for the c ourt. Finally , the State’s ar g ument would also qualify as a rea sonable deduction from the16

rele vant evidenc e prese nted at trial. The State introduce d undisputed evidenc e that Ke nnedy pointed a g un at Kunz shortly

afte r Kunz pulled Kenne dy o ver f or a tra ffic violation, that Ke nnedy fired repe atedly

at Kunz and his patrol ca r, and that Kennedy

switched guns, g ot out of his car, a nd continued firingat Kunz. I n light of the prec eding , it was rea sonable forthe State to deduce and argue that Ke nnedy

fired the first shot. B e c a us e the State ’s argume nt fa lls wi thi n the pe rm iss ibl e ty pe s o f c los ingargume nts , the dis tr ic t c ourt

did no t e rr by a llo wi ngit. Accord ing ly , w e ov e rr ule Ke nn e dy ’s fi ft

h issue on appea l.

CO NC LU SION

Havingconclude d that Kenne dy waived his fir st four i s s ues and ha ving ove rruled Ke nn e dy ’s fi ft

h is su e on a pp e a l, w e a ff

ir m th e jud g me nt o f t

he dis tr ic t c ourt
.

__________________________________________ David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: August 13, 2008 Pub lis h