ORAL ARGUMENT WAIVED

CAUSE NO. 06-15-00108-CR

IN THE

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

____________________________________________________________

ALEXANDER NATHANIEL BRENES, Appellant

V.

THE STATE OF TEXAS, Appellee

____________________________________________________________

ON APPEAL FROM THE 6TH DISTRICT COURT;

LAMAR COUNTY, TEXAS; TRIAL COURT CAUSE NO. 23814;

HONORABLE WILLIAM “BILL” HARRIS, JUDGE

____________________________________________________________

APPELLEE’S (STATE’S) BRIEF ____________________________________________________________

Gary D. Young

Lamar County and District Attorney

Lamar County Courthouse

119 North Main

Paris, Texas 75460

(903) 737-2470

(903) 737-2455 (fax)

ATTORNEYS FOR THE STATE OF TEXAS

ACCEPTED

06-15-00108-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

12/23/2015 11:02:19 AM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/23/2015 11:02:19 AM DEBBIE AUTREY Clerk
-iIDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.
-iiTABLE OF CONTENTS

PAGE NO.:

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . .. . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . ix

ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . . . x

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT AND AUTHORITIES

ISSUE/POINT OF ERROR IN REPLY NO. 1: THE 

TRIAL COURT DID NOT ERR IN ADJUDGING THE

APPELLANT GUILTY OF POSSESSION WITH INTENT TO

DELIVER A CONTROLLED SUBSTANCE, NAMELY,

“ECSTASY OR METHYLENDIOXY METHAMPHETAMINE,”

AS ALLEGED IN THE INDICTMENT BECAUSE BRENES

COULD NOT ESTABLISH THE VOID JUDGMENT

EXCEPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-iiiISSUE/POINT OF ERROR IN REPLY NO. 2: 

ASSUMING THE APPELLANT PRESERVED ERROR, 

THE TRIAL COURT DID NOT ERR IN SENTENCING 

THE APPELLANT WITHIN THE APPLICABLE RANGE

OF PUNISHMENT FOR A FIRST DEGREE FELONY. 16

ISSUE/POINT OF ERROR IN REPLY NO. 3: THE TRIAL

COURT DID NOT ERR IN DENYING THE APPELLANT’S

MOTION TO SUPPRESS AND IN CONCLUDING THAT THE

SEARCH OF THE APPELLANT’S VEHICLE WAS LAWFUL

BECAUSE ONCE PROBABLE CAUSE WAS ESTABLISHED,

THE OFFICERS COULD SEARCH THE APPELLANT’S

VEHICLE WITHOUT A WARRANT. . . . . . . . . . . . 19

ISSUE/POINT OF ERROR IN REPLY NO. 4: THE TRIAL

COURT DID NOT ERR IN ACCEPTING THE 

APPELLANT’S GUILTY PLEA BECAUSE BRENES 

WAIVED ANY COMPLAINT AS TO THE 

ADMISSIBILITY OF HIS RECORDED STATEMENT 

BY FAILING TO SPECIFICALLY OBJECT ON THE 

BASIS OF ARTICLE 38.22 OF THE TEXAS CODE OF

CRIMINAL PROCEDURE; ALTERNATIVELY, THE

APPELLANT (BRENES) COULD NOT SHOW ANY 

HARM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . 30
-ivINDEX OF AUTHORITIES

CASES: PAGE:

Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim. App. 1991),

cert. denied, 504 U.S. 917, 112 S.Ct. 1959, 118 

L.Ed.2d 561 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,26

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. 

App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20

England v. State, 887 S.W.2d 902, 913 (Tex. Crim. App. 

1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. 

App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Ex parte Pena, 71 S.W.3d 336, 336-37 n. 1 (Tex. Crim. 

App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Flowers v. State, 438 S.W.3d 86, 107 (Tex. App.--Texarkana 

2014, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 

Gant v. State, 116 S.W.3d 124, 134, 135 (Tex. App.--Tyler 2003, 

pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,26

 

Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. 

App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Graves v. State, 307 S.W.3d 483, 489 (Tex. App.--Texarkana 

2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. 

App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20

Harris v. State, 468 S.W.3d 248, 255 (Tex. App.--Texarkana 

2015, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 
-vCASES: PAGE:

Hernandez v. State, 867 S.W. 900, 907 (Tex. App.--Texarkana 

1993, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,26 

Hitchcock v. State, 118 S.W.3d 844, 851 (Tex. App.--

Texarkana 2003, pet. ref’d). . . . . . . . . . . . . . . . . . . . . 24,26

Hill v. State, 440 S.W.3d 670, 676 (Tex. App.--Tyler 

2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hoffa v. United States, 385 U.S. 293, 302; 87 S. Ct. 408; 17 L. 

Ed. 2d 374 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,23

Joshua David Stevens v. The State of Texas, No. 06-05-00235-CR,

2006 Tex. App. LEXIS 3671, 3761 *3, *4, *7, *8, *9 (Tex. 

App.--Texarkana May 2, 2006, pet. ref’d) (mem. op., not 

designated for publication) (Carter, J.) . . . . . . . . . . . . 13,14,15

Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 

2d 576 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22

Mizell v. State, 119 S.W.3d 804, 806 n. 6 (Tex. Crim. 

App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), 

cert. denied, 555 U.S. 1154, 129 S.Ct. 1037, 173 

L.Ed.2d 471 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Nix v. State, 65 S.W.3d 664, 667-668, 668 n. 14 (Tex. Crim.

App. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

People v. Catania, 427 Mich. 447, 465-66; 398 N.W.2d 343,

 351-52 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pina v. State, 38 S.W.3d 730, 736 (Tex. App.--Texarkana 2001, 

pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
-viCASES: PAGE:

Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana 

2009, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. 

App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. 

App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

State v. Guzman, 959 S.W.2d 631, 634 (Tex. Crim. App. 

1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 

State v. Mazuca, 375 S.W.3d 294, 296 n. 2 (Tex. Crim. App. 2012) 

cert. denied, ___ U.S. ___, 133 S.Ct. 1724, 185 L.Ed.2d 789 

(2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,17

State v. Ross, 32 S.W.3d 853, 856-57 (Tex. Crim. 

App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 

United States v. Johns, 469 U.S. 478, 484; 105 S.Ct. 881, 83 

L.Ed.2d 890 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 

1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

STATUTES: PAGE NO:

TEX. CODE CRIM. PROC. ART. 38.22 . . . . . . . . . . . . . . . 27,28

TEX. HEALTH & SAFETY CODE ANN. § 481.103 . . . . .

TEX. HEALTH & SAFETY CODE ANN. § 481.113(d)

(West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-viiSTATUTES: PAGE NO:

TEX. HEALTH & SAFETY CODE ANN. § 481.113(a), (d)

(West 2010 & Supp. 2015) . . . . . . . . . . . . . . . . . . . . . viii,17

TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), 

(b)(4) (West 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

TEX. PENAL CODE ANN. § 8.06 (West 2011) . . . . . . . . . 21 

TEX. PENAL CODE ANN. §12.32 (West 2006). . . . . . . . . 17,18

TEX. R. APP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,21,27

TEX. R. APP. P. 38.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

TEX. R. APP. P 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. P 38.2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . ix

TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . i

TEX. R. APP. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
-viiiSTATEMENT OF THE CASE

In this narcotics case, the State’s indictment charged the appellant

(Brenes) as a habitual offender and with felony offenses in two counts: (1)

possession of marijuana of fifty (50) pounds or less but more than five (5)

pounds in a drug free zone; and (2) possession with intent to deliver a

controlled substance, namely, “Ecstasy or methylendixoy

methamphetamine” of four grams or more but less than four hundred grams.

See CR, pgs. 6-8. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(4)

(West 2010) (Offense: Possession of Marihuana); Tex. Health & Safety

Code Ann. § 481.113(a), (d) (West 2010 & Supp. 2015) (Offense:

Manufacture of Delivery of Substance in Penalty Group 2 or 2-A).

The appellant (Brenes) filed a motion to suppress, which the trial

court denied after a hearing. See RR, Vol. 1, pg. 119. Consistent with a plea

bargain agreement, the trial court subsequently found Brenes guilty of the

felony offenses in both counts and sentenced him “to 20 years in TDC” in

count one and “to 25 years in TDC” in count two. See RR, Vol. 2, pg. 9.

From two (2) separate final judgments of conviction in both counts

(CR, pgs. 99-100; 100-101), the appellant filed his notice of appeal. See CR,

pg. 96. By this appeal, Brenes brings four (4) issues/points of error.
-ixSTATEMENT REGARDING ORAL ARGUMENT

The State of Texas will waive oral argument. See Tex. R. App. P.

38.1(e), 38.2(a)(1).
-xISSUES/POINTS OF ERROR PRESENTED IN REPLY

ISSUE/POINT OF ERROR IN REPLY NO. 1: THE TRIAL COURT

DID NOT ERR IN ADJUDGING THE APPELLANT GUILTY OF

POSSESSION WITH INTENT TO DELIVER A CONTROLLED

SUBSTANCE, NAMELY, “ECSTASY OR METHYLENDIOXY

METHAMPHETAMINE,” AS ALLEGED IN THE INDICTMENT

BECAUSE BRENES COULD NOT ESTABLISH THE VOID

JUDGMENT EXCEPTION.

ISSUE/POINT OF ERROR IN REPLY NO. 2: ASSUMING THE

APPELLANT PRESERVED ERROR, THE TRIAL COURT DID NOT

ERR IN SENTENCING THE APPELLANT WITHIN THE

APPLICABLE RANGE OF PUNISHMENT FOR A FIRST DEGREE

FELONY.

ISSUE/POINT OF ERROR IN REPLY NO. 3: THE TRIAL COURT

DID NOT ERR IN DENYING THE APPELLANT’S MOTION TO

SUPPRESS AND IN CONCLUDING THAT THE SEARCH OF THE

APPELLANT’S VEHICLE WAS LAWFUL BECAUSE ONCE

PROBABLE CAUSE WAS ESTABLISHED, THE OFFICERS COULD

SEARCH THE APPELLANT’S VEHICLE WITHOUT A WARRANT.

ISSUE/POINT OF ERROR IN REPLY NO. 4: THE TRIAL COURT

DID NOT ERR IN ACCEPTING THE APPELLANT’S GUILTY PLEA

BECAUSE BRENES WAIVED ANY COMPLAINT AS TO THE

ADMISSIBILITY OF HIS RECORDED STATEMENT BY FAILING

TO SPECIFICALLY OBJECT ON THE BASIS OF ARTICLE 38.22

OF THE TEXAS CODE OF CRIMINAL PROCEDURE;

ALTERNATIVELY, THE APPELLANT (BRENES) COULD NOT

SHOW ANY HARM.
-1-

CAUSE NO. 06-15-00108-CR

IN THE

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

____________________________________________________________

ALEXANDER NATHANIEL BRENES, Appellant

V.

THE STATE OF TEXAS, Appellee

____________________________________________________________

ON APPEAL FROM THE 6TH DISTRICT COURT;

LAMAR COUNTY, TEXAS; TRIAL COURT CAUSE NO. 23814;

HONORABLE WILLIAM “BILL” HARRIS, JUDGE

____________________________________________________________

APPELLEE’S (STATE’S) BRIEF _____________________________________________________________

TO THE HONORABLE SIXTH COURT OF APPEALS:

COMES NOW, the State of Texas, by and through the County and

District Attorney’s Office of Lamar County, files this its Appellee’s (State’s)

Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.

Unless otherwise indicated, the appellant will be referred to as

“Brenes” and the appellee will be referred to as “the State.”
-2-

STATEMENT OF FACTS

Factual Background.

In April of 2010, Leigh Foreman, a detective with the Paris Police

Department, (Detective Foreman) was investigating narcotics violations at

2331 Maple in Lamar County. See RR, Vol. 1, pg. 13. Detective Foreman

had received a phone call from Anson Amis (Amis), who was employed by

the Lamar County Sheriff’s Department as a narcotics investigator. See RR,

Vol. 1, pgs. 14, 21. Amis had received information from an informant that

Brenes was in Paris and was frequenting a house in the 2300 block of Maple.

See RR, Vol. 1, pgs. 14, 21.

The house was occupied by three females: Tiffany Deaton (Deaton),

Angela Langston (Langston) and April Bankston (Bankston). See RR, Vol.

1, pgs. 14, 66. Langston and Bankston were sisters. See RR, Vol. 1, pg. 77.

Deaton was a tenant at the house, and she lived there. See RR, Vol. 1, pgs.

72, 82, 84. According to Deaton, she was “a live-in babysitter.” See RR,

Vol. 1, pg. 84.

Detective Foreman, Detective Stone and Sergeant Springer (Sergeant

Springer) went to that location. See RR, Vol. 1, pg. 14. The officers

approached the house (RR, Vol. 1, pg. 36) and made contact with Deaton,
-3-

who was alone outside the house. See RR, Vol. 1, pg. 37. Detective

Foreman identified himself and asked who lived there. See RR, Vol. 1, pg.

38. The front door was open, and Detective Foreman could see other

occupants in the house. See RR, Vol. 1, pg. 38. 

Langston was in the doorway of the house. See RR, Vol. 1, pg. 41.

When Langston said that she lived there and everyone else was visiting (RR,

Vol. 1, pg. 42), the officers determined that Langston was the one that lived

at the house. See RR, Vol. 1, pgs. 14, 38, 41. Detective Foreman asked

Langston for consent to search, and she gave consent. See RR, Vol. 1, pgs.

14, 42, 67, 87.

The officers found a small, clear baggie of marijuana in Langston’s

room and the remnants of marijuana packaging in Deaton’s room. See RR,

Vol. 1, pgs. 15, 22, 67, 72, 88. According to Langston, the officers said that

“it wasn’t enough to worry about.” See RR, Vol. 1, pg. 67. Detective

Foreman could smell marijuana in the house and on the packaging. See RR,

Vol. 1, pg. 15.

Detective Foreman confronted Deaton about what was found in her

room (RR, Vol. 1, pg. 50), and asked her about that. See RR, Vol. 1, pg. 15.

She told Detective Foreman that her marijuana supplier was Brenes. See
-4-

RR, Vol. 1, pgs. 15, 17, 22. In talking to Detective Foreman, Deaton had

helped Brenes package marijuana in smaller amounts. See RR, Vol. 1, pg.

17. Detective Foreman asked her if she would cooperate with getting Brenes

to deliver marijuana to the house. See RR, Vol. 1, pg. 50. Deaton agreed.

See RR, Vol. 1, pgs. 17, 51, 89.

Deaton agreed to make a phone call or a text to Brenes in an attempt

to arrange for him to deliver marijuana. See RR, Vol. 1, pgs. 17, 51, 89-90.

Deaton also said that he’d commonly carry his contraband in a backpack.

See RR, Vol. 1, pg. 22.

Detective Foreman was aware of Brenes because he had previously

been to prison for delivery. See RR, Vol. 1, pg. 18. The officers had Deaton

make contact with text messaging, and the “slang” text asked “if he had any

green.” See RR, Vol. 1, pg. 18. Brenes stated, “he was going to be on his

way and he arrived a short time later.” See RR, Vol. 1, pg. 19. Deaton

described Brenes’ vehicle as a green Toyota. See RR, Vol. 1, pgs. 19, 22.

Detective Foreman and Sergeant Springer remained in the house. See

RR, Vol. 1, pg. 20. Detective Stone took a position up outside the residence

to await the arrival of Brenes (RR, Vol. 1, pg. 51), and was in a marked

vehicle “down the road a little bit” from the house. See RR, Vol. 1, pg. 20.
-5-

Brenes was on the phone, when he pulled up. See RR, Vol. 1, pg. 91.

Brenes walked in the house, where the door had been left cracked open. See

RR, Vol. 1, pg. 91. Detective Foreman was in the living room, hiding

behind the front door. See RR, Vol. 1, pgs. 51-52. 

Detective Foreman and Sergeant Springer detained him. See RR, Vol.

1, pg. 20. Sergeant Springer “cuffed” Brenes. See RR, Vol. 1, pg. 54. “He

was in handcuffs.” See RR, Vol. 1, pg. 58. See also RR, Vol. 1, pg. 92.

“He was not free to go.” See RR, Vol. 1, pg. 58. “[H]e was detained for an

investigative detention.” See RR, Vol. 1, pg. 58. 

Detective Foreman asked him his name and asked him if he had

marijuana. See RR, Vol. 1, pg. 56. Brenes said, “no.” See RR, Vol. 1, pg.

56. Detective Foreman advised Brenes that he was going to search his

vehicle for marijuana. See RR, Vol. 1, pg. 56. Brenes told Detective

Foreman that he could not. See RR, Vol. 1, pg. 56.

Detective Foreman went outside to the green Toyota. See RR, Vol. 1,

pgs. 20, 56. Detective Stone also walked out to his car. See RR, Vol. 1, pg.

58. The vehicle had the windows down. See RR, Vol. 1, pg. 20. The

driver’s side window was open. See RR, Vol. 1, pg. 58. 

Detective Foreman could smell marijuana. See RR, Vol. 1, pg. 20. It
-6-

was a “strong smell” of marijuana. See RR, Vol. 1, pg. 22. Based on his

training, Detective Foreman then searched the vehicle without a warrant.

See RR, Vol. 1, pgs. 20-21, 58. Detective Forman searched the car

exclusively on the odor of marijuana. See RR, Vol. 1, pg. 59. Detective

Foreman “literally had no doubt that there was marijuana in the vehicle.”

See RR, Vol. 1, pg. 22.

As a result of his search, Detective Foreman found a backpack that

had baggies and scales for weighing contraband. See RR, Vol. 1, pgs. 22,

59. In the glove compartment, Detective Foreman found a baggie containing

99 tablets of ecstasy. See RR, Vol. 1, pgs. 23, 59. Sergeant Springer was

the first one to search the trunk, where he found nine taped bundles. See

RR, Vol. 1, pgs. 23, 60. Ultimately, the officers found almost twelve pounds

of marijuana, and that’s a “huge amount in Paris.” See RR, Vol. 1, pg. 23.

The officers arrested Brenes (RR, Vol. 1, pg. 23), and removed the

cell phones from his person. See RR, Vol. 1, pgs. 24-25. Upon their initial

contact with Brenes, Sergeant Springer Mirandized him at the scene and

attempted to talk to him, but he wouldn’t talk. See RR, Vol. 1, pgs. 25, 28,

29-30, 33, 35, 61. Brenes requested an attorney. See RR, Vol. 1, pg. 34.

Initially, Brenes would have been jailed at the Paris Police
-7-

Department and subsequently transferred to the Lamar County jail. See RR,

Vol. 1, pg. 32. Later, Brenes changed his attitude at the jail for the Paris

Police Department. See RR, Vol. 1, pgs. 25, 35. 

While booking him in, Detective Foreman and Brenes were “face to

face” (RR, Vol. 1, pgs. 27-28), and Detective Foreman told Brenes that since

he had refused to talk with Sergeant Springer, he couldn’t speak with him

unless he attempted to speak with Detective Foreman first. See RR, Vol. 1,

pgs. 25-26, 33. Detective Foreman made Brenes aware of Sergeant

Springer’s Miranda warnings to him. See RR, Vol. 1, pg. 26. Brenes made

recorded statements; in which, he confessed to being a marijuana and ecstasy

dealer “to varying degrees.” See RR, Vol. 1, pg. 26. 

Indictment of July 15, 2010.

On July 15, 2010, a grand jury in Lamar County returned an original

indictment against Brenes that charged him with felony offenses in two (2)

counts: (1) possession of marijuana of fifty pounds or less but more than

five pounds; and (2) possession with intent to deliver a controlled substance,

namely, Ecstasy or methylendixoy methamphetamine of four grams or more

but less than four hundred grams. See CR, pgs. 6-8. Both counts included

paragraphs, which alleged that each offense was committed in a drug free
1 The State would later abandon the drug-free-zone allegations. See RR, Vol. 2, pg. 4.

-8-

zone.1 See CR, pg. 7.

Suppression Hearing on December 12, 2014.

On December 12, 2014, the trial court called cause number 23814 and

“[w]e’re here today on the Defendant’s motion to suppress.” See RR, Vol.

1, pg. 4. After a preliminary discussion (RR, Vol. 1, pgs. 4-12), the State

called Detective Foreman as its first witness. See RR, Vol. 1, pg. 13.

Following his testimony, the State rested. See RR, Vol. 1, pg. 64.

Brenes presented several witnesses; and at the conclusion of their

testimony, the defense rested. See RR, Vol. 1, pg. 114. Both sides then

rested and closed. See RR, Vol. 1, pg. 114.

After argument by counsel (RR, Vol. 1, pgs. 114-119), the trial court

ruled, “I’m going to deny the motion to suppress with regards to the conduct

at the house and what happened and what was seized out of the car.” See

RR, Vol. 1, pg. 119.

Proceedings on June 19, 2015 and Plea Bargain Agreement.

On June 19, 2015, the trial court called cause number 23814, which

had been set for a jury trial on June 29th. See RR, Vol. 2, pg. 4. During the

hearing, the trial judge learned that the State and Brenes had reached a plea

agreement. See RR, Vol. 2, pg. 4.
-9-

Consistent with the plea agreement, the trial court found Brenes guilty

beyond a reasonable doubt and pronounced sentence. See RR, Vol. 2, pg. 9.

In count one, the trial court sentenced Brenes “to 20 years in TDC, and I’ll

note for the record that the drug-free zone has been abandoned in that

count.” See RR, Vol. 2, pg. 9. In count two, the trial court sentenced Brenes

“to 25 years in TDC, and, again, I’ll note for the record that the drug-free

zone allegation has been abandoned.” See RR, Vol. 2, pg. 9.

On June 19th, the trial court signed separate Judgments of Conviction

by Court--Waiver of Jury Trial as to count one (CR, pgs. 99-100) and count

two. See CR, pgs. 101-102. On the same day, the trial court signed its

Certification of the Defendant’s Right of Appeal (CR, pg. 94), and Brenes

filed his notice of appeal. See CR, pg. 96.

Proceedings in this Court of Appeals.

On or about June 25th, Brenes, the appellant, filed his notice of appeal

in this Court. By electronic filing or about August 25th, the District Clerk of

Lamar County filed the Clerk’s Record. The official court reporter filed the

Reporter’s Record on or about August 31, 2015. On or about September 14,

2015, the District Clerk filed a supplemental Clerk’s Record.

As the due date for the appellant’s brief approached, Brenes filed a
-10-

motion to extend time to file his brief, which this Court granted on or about

September 15, 2015. Brenes then filed his brief on October 20, 2015.

On November 19th, the State filed its motion to extend time to file its

brief, which this Court granted until December 18, 2015. The State will be

filing its brief and a second motion to extend time until December 23rd.

SUMMARY OF THE ARGUMENT

In summary, the appellant’s four (4) issues/points of error should be

overruled for the following reasons:

(1) The trial court did not err in adjudging Brenes guilty in count

two because Brenes could not establish the void judgment exception. The

typographical error in the exact scientific name of the compound (“3,4-

methylendioxy methamphetamine”) was not sufficient to deprive Brenes or

notice, or to deprive the trial court of jurisdiction. 

(2) Assuming the appellant preserved error, the trial court did not

err in sentencing the appellant in count two “to 25 years in TDC” because it

was within the applicable range of punishment for a first degree felony.

(3) The trial court did not err in denying the appellant’s motion to

suppress because once probable cause was sufficiently established, the

officers could search the appellant’s vehicle without a warrant.
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(4) Finally, the trial court did not err in accepting the appellant’s

guilty plea because Brenes waived any complaint as to the admissibility of

his recorded statement by failing to object. In the alternative, Brenes could

not show any harm. For these reasons, the final judgments of conviction

should be affirmed in both counts. See CR, pgs. 99-100; 101-102.

ARGUMENT AND AUTHORITIES

ISSUE/POINT OF ERROR IN REPLY NO. 1: THE TRIAL COURT

DID NOT ERR IN ADJUDGING THE APPELLANT GUILTY OF

POSSESSION WITH INTENT TO DELIVER A CONTROLLED

SUBSTANCE, NAMELY, “ECSTASY OR METHYLENDIOXY

METHAMPHETAMINE,” AS ALLEGED IN THE INDICTMENT

BECAUSE BRENES COULD NOT ESTABLISH THE VOID

JUDGMENT EXCEPTION.

A. Introduction.

With his first issue/point of error, Brenes alleged that his conviction,

as alleged in count two (CR, pg. 7), was void because neither “Ecstasy” nor

“Methylendioxy methamphetamine” were listed in chapter 481 of the Texas

Health and Safety Code. See Appellant’s Brief, pgs. 24-26. According to

Brenes, his conviction should be declared a nullity, and he is allegedly

entitled to immediate relief. See Appellant’s Brief, pgs. 24, 26.

B. Standard of Review: Void Judgment.

A void judgment is a “nullity” and can be attacked at any time. See
-12-

Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001) (citing Ex parte

Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998)). The void judgment

exception has recognized some rare situations, in which a trial court’s

judgment is accorded no respect due to a complete lack of power to render

the judgment in question. See Hill v. State, 440 S.W.3d 670, 676 (Tex.

App.--Tyler 2012, no pet.) (citing Nix, 65 S.W.3d at 667). A judgment of

conviction for a crime is void only when (1) the document purporting to be a

charging instrument (i.e. indictment, information, or complaint) does not

satisfy the constitutional requisites of a charging instrument, and thus, the

trial court has no jurisdiction over the defendant, (2) the trial court lacks

subject matter jurisdiction over the offense charged, such as when a

misdemeanor involving official misconduct is tried in a county court at law,

(3) the record reflects that there is no evidence to support the conviction, or

(4) an indigent defendant is required to face criminal trial proceedings

without appointed counsel when the right to counsel has not been waived.

See id (citing Nix, 65 S.W.3d at 668). A guilty plea is some evidence to

support a conviction. See id (citing Nix, 65 S.W.3d at 668 n. 14).

C. The Judgment of Conviction for Count 2 Was Not Void.

In the present case, the trial court’s judgment of conviction for count 2
-13-

was not void because this Court rejected a similar argument in Joshua David

Stevens v. The State of Texas, No. 06-05-00235-CR, 2006 Tex. App. LEXIS

3671 (Tex. App.--Texarkana May 2, 2006, pet. ref’d) (mem. op., not

designated for publication) (Carter, J.). In Stevens, an unpublished opinion,

the appellant argued that the trial court lacked jurisdiction because the

indictment was so defective as to be a non-indictment. See id., 2006 Tex.

App. LEXIS 3671, at * 3-4.

In Stevens, the indictment alleged a compound (3,4-methyldioxy

methamphetamine) that was misspelled and, thus, was not listed in the Texas

Controlled Substances Act. See id., 2006 Tex. App. LEXIS 3671, at * 4. In

Stevens, the compound in the Texas Health and Safety Code contained the

letters “ene,” which were not included in the indictment that formed the

basis for the appellant’s conviction. See id. Thus, the issue in Stevens was

whether the omission of the letters “ene” prevented the charging instrument

from describing the crime with enough clarity and specificity to identify the

relevant penal statute. See id., 2006 Tex. App. LEXIS 3671, at * 7.

In Stevens, this Court resolved that although the indictment misspelled

the scientific name of the controlled substance, the indictment provided

sufficient notice to the defendant. See id., 2006 Tex. App. LEXIS 3671, at *
-14-

8. In general, this Court reasoned that the mere misspelling of a name did

not prevent an indictment from alleging an offense, provided the indictment

nevertheless provided the necessary notice of the statutory offense. See id.

In Stevens, this Court further reasoned that:

Given the similarity between the names of the compounds and

that the indictment clearly provides Stevens was accused of

delivery of a controlled substance, no reasonable person would

have been confused that the State was alleging delivery of a

controlled substance listed in penalty group 2 of the Texas

Controlled Substances Act. Such a conclusion is particularly

true when one considers that scientific names appear

excessively complex to most laymen. The indictment, even

with the misspelled word, accused Stevens of a crime with

enough clarity and specificity to identify the penal statute under

which the State intended to prosecute. As such, Stevens was not

deprived of the screening function of a grand jury. The

typographical error in the spelling of the scientific name of the

compound is not sufficient to deprive Stevens notice of the

crime of which he was accused or to deprive the trial court of

jurisdiction.

Id., 2006 Tex. App. LEXIS 3671, at * 8-9 (reference to footnote omitted).

In applying the Stevens rationale to the allegations in count 2 (CR, pg.

7), the mere misspelling of a scientific name did not prevent the indictment

from alleging an offense. See id, 2006 Tex. App. LEXIS 3671, at * 8. In the

present case, the State’s indictment omitted the numbers “3,4-” before the

precise name of the scientific compound in section 481.103(a) of the Texas

Health and Safety Code Annotated. See State v. Mazuca, 375 S.W.3d 294,
-15-

296 n. 2 (Tex. Crim. App. 2012) (“Penalty Group 2 consists of [inter alia]

3,4-methylendioxy methamphetamine”), cert. denied, ___ U.S. ___, 133

S.Ct. 1724, 185 L.Ed.2d 789 (2013). But, this omission was not fatal.

Here, as in Stevens, no reasonable person would have been confused

that the State was alleging delivery of a controlled substance listed in

penalty group 2 of the Texas Controlled Substances Act. See Stevens, 2006

Tex. App. LEXIS 3671, at * 9. The indictment, even with the missing “3,4-”

missing numbers, accused Brenes of a crime with enough clarity and

specificity to identify the penal statute under which the State intended to

prosecute. See id; CR, pg. 6. The typographical error in the exact scientific

name of the compound was not sufficient to deprive Brenes notice of the

crime of which he was accused, or to deprive the trial court of jurisdiction.

See id.

Based on the rationale expressed above, Brenes could not prove the

void judgment exception. Therefore, the appellant’s first issue/point of error

should be overruled.
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ISSUE/POINT OF ERROR IN REPLY NO. 2: ASSUMING THE

APPELLANT PRESERVED ERROR, THE TRIAL COURT DID NOT

ERR IN SENTENCING THE APPELLANT WITHIN THE

APPLICABLE RANGE OF PUNISHMENT FOR A FIRST DEGREE

FELONY.

A. Introduction.

With his second issue, Brenes alleged that his sentences were illegal,

and that he should be entitled to have his plea bargain set aside and/or to

withdraw his guilty plea. See Appellant’s Brief, pgs. 28-41. In the present

case, the appellant’s entire argument on appeal did not comport with any

objection during the proceedings in the trial court on June 19, 2015. See

Tex. R. App. P. 33.1(a). Also, the appellant’s motion for new trial (CR, pgs.

116-117) did not specifically object to illegal sentences, if any. See Tex. R.

App. P. 33.1(a).

However, “[a] trial or appellate court which otherwise has jurisdiction

over a criminal conviction may always notice and correct an illegal

sentence.” See Mizell v. State, 119 S.W.3d 804, 806 n. 6 (Tex. Crim. App.

2003) (citing Ex parte Pena, 71 S.W.3d 336, 336-37 n. 1 (Tex. Crim. App.

2002)). Thus, the State will respond to the appellant’s complaint(s).

B. In the Present Case, the State’s Indictment Alleged a First

Degree Felony in Count Two, Regardless of the Other Allegations.

In the present case, the State’s indictment alleged a first degree felony
-17-

in count two. See CR, pg. 7; Mazuca, 375 S.W.3d at 296 (“[t]he appellee

was indicted for the offense of possession with intent to deliver more than

four but less than 400 grams of methylenedioxy methamphetamine,

popularly known as ecstasy, a first degree felony offense.”). Regardless of

the enhancement paragraph or the drug-free-zone allegations that the State

eventually waived or abandoned (RR, Vol. 2, pg. 4), the State’s indictment

alleged a first degree felony, not a lesser-degree of felony. The State’s

indictment specifically identified section 481.113 of the Texas Health &

Safety Code. See CR, pg. 6.

Subsection (d) in section 481.113 of the Texas Health and Safety

Code Annotated provided that “[a]n offense under Subsection (a) is a felony

of the first degree if the amount of the controlled substance to which the

offense applies is, by aggregate weight, including adulterants or dilutants,

four grams or more but less than 400 grams.” See Tex. Health & Safety

Code Ann. § 481.113(d) (West 2006). As a first-degree felony, the

punishment range for this offense was incarceration for life or a term of five

to 99 years, and a fine of up to $ 10,000. See Tex. Penal Code Ann. § 12.32

(West 2006).
-18-

C. At the Time of Accepting the Appellant’s Plea, the Trial

Court Pronounced the Correct Range of Punishment.

At the time of the appellant’s plea on June 19th, the trial court

pronounced the following:

In count two you’re charged with possession with intent to

deliver a controlled substance, more commonly known as

ecstasy, four grams but less than 400 grams. That is a firstdegree felony -- excuse me -- as a repeat offender. Carries with

it a range of punishment of up to life or 99 years in prison and a

$10,000 fine.

Mr. Brenes, do you understand what you’re charged with

and the range of punishment in each of these counts?

THE DEFENDANT: Yes, Your Honor.

See RR, Vol. 2, pgs. 5-6.

Later, the trial court accepted the appellant’s pleas of “guilty” and

“true” and found Brenes guilty beyond a reasonable doubt. See RR, Vol. 2,

pgs. 8-9. The trial court sentenced Brenes in count 2 to “25 years in TDC,

and, again, I’ll note for the record that the drug-free zone allegation has been

abandoned.” See RR, Vol. 2, pg. 9.

In conclusion, the trial court’s sentence of 25 years was within a term

of five to 99 years, which was the applicable range of punishment for a first

degree felony. See Tex. Penal Code Ann. § 12.32 (West 2006). So, the trial

court’s sentence was not illegal, and the appellant’s second issue/point of
-19-

error should be overruled.

ISSUE/POINT OF ERROR IN REPLY NO. 3: THE TRIAL COURT

DID NOT ERR IN DENYING THE APPELLANT’S MOTION TO

SUPPRESS AND IN CONCLUDING THAT THE SEARCH OF THE

APPELLANT’S VEHICLE WAS LAWFUL BECAUSE ONCE

PROBABLE CAUSE WAS ESTABLISHED, THE OFFICERS COULD

SEARCH THE APPELLANT’S VEHICLE WITHOUT A WARRANT.

A. Standard of Review: Motion to Suppress.

This Court reviews a trial court’s decision on a motion to suppress

evidence by applying a bifurcated standard of review. See Graves v. State,

307 S.W.3d 483, 489 (Tex. App.--Texarkana 2010, pet. ref’d).; Rogers v.

State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana 2009, pet. ref’d).

Because the trial court is the exclusive trier of fact and judge of witness

credibility at a suppression hearing, this Court affords almost total deference

to its determination of facts supported by the record. See State v. Ross, 32

S.W.3d 853, 856-57 (Tex. Crim. App. 2000); Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997). This Court affords the same deference to a trial

court’s rulings on mixed questions of law and fact if the resolution of those

questions turns on an evaluation of credibility and demeanor. See Villarreal

v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

This Court reviews de novo the trial court’s application of the law and
-20-

determination of questions not turning on credibility. See Carmouche, 10

S.W.3d at 327; Guzman, 955 S.W.2d at 89. Since all the evidence is viewed

in the light most favorable to the trial court’s ruling, this Court is obligated

to uphold the denial of the appellant’s motion to suppress if it was supported

by the record and was correct under any theory of law applicable to the case.

See Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891

(Tex. Crim. App. 1999). The trial court’s evidentiary ruling “will be upheld

on appeal if it is correct on any theory of law that finds support in the

record.” See Flowers v. State, 438 S.W.3d 86, 107 (Tex. App.--Texarkana

2014, pet. ref’d) (citing Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim.

App. 2006); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).

B. Application of the Standard of Review to the Present Case.

1. Using a False Pretense, Namely, an Orchestrated Entreaty.

a. Brenes Waived this Argument, On Appeal.

Initially, Brenes complained that the police gained access to his

vehicle by “using a false pretense, namely, an orchestrated entreaty by

Appellant’s acquaintance to come to the residence and bring her some

marijuana.” See Appellant’s Brief, pgs. 45-46. If a “false pretense” was

alleged to have induced the commission of a crime, that argument should
-21-

have been made in the trial court below in order to comport with the

argument on appeal. See Tex. R. App. P. 33.1(a). But, that was not the case

here, and Brenes has waived his complaint(s) on appeal. See id.

b. If Applicable, the Defense of Entrapment Was Not Raised.

Assuming the alleged “false pretense” and “orchestrated entreaty”

through police conduct actually induced Brenes to commit this felony

offense, the defense of entrapment required the accused to produce evidence

that he was actually induced to commit the charged offense; that is to say,

that he committed the offense “because he was induced to do so.” See

England v. State, 887 S.W.2d 902, 913 (Tex. Crim. App. 1994); Tex. Penal

Code Ann. § 8.06 (West 2011). But again, that defense was not raised in the

trial court below. See Tex. R. App. P. 33.1(a).

2. Brenes Had No Reasonable Expectation of Privacy in What

He Knowingly Exposed in Langston’s Home, or in What Deaton Might

Reveal.

In Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576

(1967), the United States Supreme Court observed that “[w]hat a person

knowingly exposes to the public, even in his own home or office, is not a

subject of Fourth Amendment protection.” See id. at 351. Further, the

Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a
-22-

person to whom he voluntarily confides his wrongdoing will not reveal it.”

See Hoffa v. United States, 385 U.S. 293, 302; 87 S. Ct. 408; 17 L. Ed. 2d

374 (1966). See also People v. Catania, 427 Mich. 447, 465-66; 398

N.W.2d 343, 351-52 (1986).

After Detective Foreman asked Langston for consent to search, which

she gave (RR, Vol. 1, pgs. 14, 42, 67, 87), the officers found the remnants of

marijuana packaging in Deaton’s room. See RR, Vol. 1, pgs. 15, 22, 67, 72,

88. When Detective Foreman confronted Deaton about what was found in

her room (RR, Vol. 1, pg. 50), Deaton told him that “Brenes was her

marijuana supplier. He had brought marijuana to that location, 2331, the

previous date.” See RR, Vol. 1, pg. 17; CR, pg. 106 (finding of fact # 8).

Thus, previously, Brenes had “voluntarily confided his wrongdoing” to

Deaton, who later revealed that “[s]he had helped him package marijuana in

smaller amounts.” See RR, Vol. 1, pg. 17; CR, pg. 106 (finding of fact # 8).

In addition to “voluntarily confid[ing] his wrongdoing,” Brenes had

no reasonable expectation of privacy in what he knowingly exposed to the

public in Langston’s home or office. See Katz, 389 U.S. at 351. Further, the

Fourth Amendment did not, and would not, protect the appellant’s misplaced

belief that Deaton would not reveal his previous wrongdoing to the police.
-23-

See Hoffa, 385 U.S. at 302.

Accordingly, the trial court did not err in denying the appellant’s

motion to suppress because Brenes had no reasonable expectation of privacy

in what he knowingly exposed in Langston’s home, or in what Deaton might

reveal about his previous wrongdoing. See id. Thus, the appellant’s

argument as to “false pretense” or “orchestrated entreaty” should be rejected.

See id.

3. Once Probable Cause Was Established, Detective Foreman

Could Search the Green Toyota Without a Warrant.

In his brief, Brenes alleged that no exception to the warrant

requirement was shown in this case. See Appellant’s Brief, pgs. 42, 44. As

the trial court concluded (CR, pg. 111), however, “[a] vehicle lawfully in

police custody may be searched on the basis of probable cause to believe

that it contains contraband, and there is no requirement of exigent

circumstances to justify such a warrantless search.” See State v. Guzman,

959 S.W.2d 631, 634 (Tex. Crim. App. 1998) (quoting United States v.

Johns, 469 U.S. 478, 484; 105 S.Ct. 881, 83 L.Ed.2d 890 (1985)).

“There is no requirement that the warrantless search of a vehicle occur

contemporaneously with its lawful seizure.” See Johns, 469 U.S. at 484.

So, a warrantless search of the green Toyota could occur before a lawful
-24-

seizure. See id.

“[T]he police may lawfully search an automobile if they have

probable cause to believe that the vehicle contains evidence of a crime.” See

Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), cert. denied,

555 U.S. 1154, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009). “Once probable

cause to believe that the car contained evidence of a crime was established,

the officers could conduct a valid search of the car immediately, without a

warrant.” See Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim. App. 1991),

cert. denied, 504 U.S. 917, 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992).

Probable cause to search exists when there is a “fair probability” of finding

inculpatory evidence at the location being searched. See Neal, 256 S.W.3d

at 282.

The odor of marijuana alone was sufficient to constitute probable

cause to search a defendant’s person, vehicle or objects within the vehicle.

See, e.g., Harris v. State, 468 S.W.3d 248, 255 (Tex. App.--Texarkana 2015,

no pet.); Hitchcock v. State, 118 S.W.3d 844, 851 (Tex. App.--Texarkana

2003, pet. ref’d); Hernandez v. State, 867 S.W. 900, 907 (Tex. App.--

Texarkana 1993, no pet.).

Analysis of probable cause is based on a “totality of the
-25-

circumstances” test. See Gant v. State, 116 S.W.3d 124, 134 (Tex. App.--

Tyler 2003, pet. ref’d). In order to temporarily detain an individual for

investigation, an officer need only articulate specific facts which, taken

together with rational inferences from those facts, give rise to a reasonable

suspicion of criminally related activity. See id. at 134-35.

In the present case, Detective Foreman articulated specific facts that

were known to him prior to the appellant’s arrival at Langston’s home. See

id; CR, pgs. 109-110 (conclusion of law # 10, i through x). Based on those

specific facts, which were corroborated when Brenes then pulled up in a

green Toyota (RR, Vol. 1, pgs. 19, 22, 91), Detective Foreman had

developed reasonable suspicion of criminally related activity. See Gant, 116

S.W.3d at 134-35. While Brenes was lawfully detained, as the trial court

concluded (CR, pg. 108), Detective Foreman testified that he went outside to

the green Toyota, and the vehicle had the driver’s side window open. See

RR, Vol. 1, pgs. 20, 58. Detective Foreman could smell marijuana (RR,

Vol. 1, pg. 20), which he described as a “strong smell.” See RR, Vol. 1, pg.

22. Based on his training, Detective Foreman then searched the vehicle

without a warrant. See RR, Vol. 1, pgs. 20-21, 58. 

Based on the totality of the circumstances, including the smell of
-26-

marijuana, probable cause existed to search the appellant’s vehicle without a

warrant. See Gant, 116 S.W.3d at 134-35; Harris, 468 S.W.3d at 255;

Hitchcock, 118 S.W.3d at 851; Hernandez, 867 S.W. at 907. Once probable

cause existed, Detective Foreman could conduct a valid search of the car

immediately, without a warrant. See Amos, 819 S.W.2d at 161.

Because sufficient probable cause existed, the trial court did not err in

concluding that the search of the appellant’s vehicle was lawful. See CR, pg.

111 (conclusion of law # 17). Accordingly, the trial court did not err in

denying the appellant’s motion to suppress, and the appellant’s third

issue/point of error should be overruled.

ISSUE/POINT OF ERROR IN REPLY NO. 4: THE TRIAL COURT

DID NOT ERR IN ACCEPTING THE APPELLANT’S GUILTY PLEA

BECAUSE BRENES WAIVED ANY COMPLAINT AS TO THE

ADMISSIBILITY OF HIS RECORDED STATEMENT BY FAILING

TO SPECIFICALLY OBJECT ON THE BASIS OF ARTICLE 38.22

OF THE TEXAS CODE OF CRIMINAL PROCEDURE;

ALTERNATIVELY, THE APPELLANT (BRENES) COULD NOT

SHOW ANY HARM.

A. Introduction.

With his final issue/point of error, Brenes alleged that the trial court

erred in accepting his guilty plea without first ruling that the recording of his

statement at the Paris Police Department was inadmissible. See Appellant’s

Brief, pgs. 60, et. seq. In this regard, however, Brenes waived any complaint
-27-

as to the admissibility of his recorded statement by failing to specifically

object on the basis of article 38.22 of the Texas Code of Criminal Procedure.

See Tex. R. App. P. 33.1(a).

B. The Failure to Object Constituted a Waiver of Any Error.

In Pina v. State, 38 S.W.3d 730 (Tex. App.--Texarkana 2001, pet.

ref’d), a murder case involving “statements” under article 38.22, this Court

held the following:

In order to complain of an error in admitting evidence offered

by the State, the defendant must preserve his claimed error by

timely and properly objecting and obtaining a ruling from the

court on the objection. The defendant must state specifically the

basis for the objection unless the particular ground is apparent

from the context. Ethington v. State, 819 S.W.2d 854, 858

(Tex. Crim. App. 1991). The objection must be made at the

earliest opportunity, and the point of error on appeal must

correspond to the objection raised at trial. Martinez v. State,

867 S.W.2d 30, 35 (Tex. Crim. App. 1993). Defense counsel

did not object to Warren’s earlier testimony on the Article

38.22 grounds that are raised in this appeal. This failure to

object at the first opportunity constitute a waiver of the error.

See Pina, 38 S.W.3d at 736.

As in Pina, any specific objection on the basis of article 38.22 of the

Texas Code of Criminal Procedure was not made at the earliest opportunity

by Brenes. See Pina, 38 S.W.3d at 736. Also, the appellant’s fourth and

final issue/point of error did not correspond to any objection raised at trial.
-28-

See id. Even if Brenes had timely and specifically objected, he did not reassert that objection at the time of his guilty plea on June 19, 2015. See

generally RR, Vol. 2, pgs. 4-9.

C. Harmless Error.

Even assuming a violation of article 38.22 of the Texas Code of

Criminal Procedure, Brenes could not show any harm. See Tex. R. App. P.

44.2(b). In his brief, Brenes contended that “[i]f this Court decides to

remand this case for trial, then it should provide the necessary guidance on

the issue so that error does not creep back into the case[,] [and] [t]he State

may otherwise decide to withdraw its concession.” See Appellant’s Brief,

pg. 62. 

During the June 19th hearing, however, the trial court specifically

ruled that “the State has forever abandoned the use of the Defendant’s

statement to Leigh Foreman in any capacity, and that the State will not file

any bail jumping or failure to appear charges against the Defendant.” See

RR, Vol. 2, pgs. 9-10. So, Brenes could not show any harm as to the

recording of his statement at the Paris Police Department because the State

had “forever abandoned” the use of the statement “in any capacity.” See

RR, Vol. 2, pgs. 9-10.
-29-

In the further alternative, Brenes could not show any harm because

there was sufficient evidence of the appellant’s guilt without the use of any

recorded statement. For the reasons above, Brenes could not show any

harm, and the appellant’s final issue/point of error should be overruled.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission of the above-styled and numbered cause without

oral argument, this Court affirm the trial court’s final judgment of conviction

in all respects; adjudge court costs against the appellant; and for such other

and further relief, both at law and in equity, to which it may be justly and

legally entitled.

Respectfully submitted,

Gary D. Young

Lamar County & District Attorney

Lamar County Courthouse

119 North Main

Paris, Texas 75460

(903) 737-2470

(903) 737-2455 (fax)

By:________________________________

Gary D. Young, County Attorney

SBN# 00785298

gyoung@co.lamar.tx.us

ATTORNEYS FOR THE STATE OF TEXAS
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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellee’s (State’s) Brief” was a computer-generated document and

contained 7799 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.

______________________________

GARY D. YOUNG

gyoung@co.lamar.tx.us

CERTIFICATE OF SERVICE

This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the Appellee’s (State’s) Brief has been served on the 23rd day of

December, 2015 upon the following:

Michael Mowla

445 E. FM 1382, No. 3-718

Cedar Hill, TX 75104

michael@mowlalaw.com

______________________________

GARY D. YOUNG

 gyoung@co.lamar.tx.us