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 6 THDISTRICT COURT; LAMAR COUNTY, TEXAS; TRIAL COURT CAUSE NO. 23814; H ONORABLE 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-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) po ssession 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 C ode 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 mo tion 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 subs equently found Brenes guilty of the felony offenses in both counts and se ntenced 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 judgmen ts of conviction in both counts (CR, pgs. 99-100; 100-101), the appellantfiled 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 6 THDISTRICT COURT; LAMAR COUNTY, TEXAS; TRIAL COURT CAUSE NO. 23814; H ONORABLE 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 Texa s 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 i nvestigating narcotics violations at 2331 Maple in Lamar County. See RR, Vol. 1, pg. 13. Detective Foreman had received a phonecall 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 recei ved information from an informant that Brenes was in Paris and was frequen ting 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 (La ngston) and April Bankston (Bankston). See RR, Vol. 1, pgs. 14, 66. Langston a nd 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 St one 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 ba ggie of marijuana in Langston’s room and the remnants of mariju ana packaging in Deaton’s room. See RR, Vol. 1, pgs. 15, 22, 67, 72, 88. Accord ing 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 D eaton 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 talk ing to Detective Foreman, Deaton had helped Brenes package marijuana in smaller amounts. See RR, Vol. 1, pg. 17. Detective Foreman as ked her if she would coope rate 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 Br enes 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 hous e, where the door had been left cracked open. See RR, Vol. 1, pg. 91. Detective Fo reman 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 al so 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 sear ched the vehicle without a warrant. See RR, Vol. 1, pgs. 20-21, 58. De tective 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 mar ijuana in the vehicle.” See RR, Vol. 1, pg. 22. As a result of his search, Detec tive Foreman found a backpack that had baggies and scales fo r weighing c ontraband. See RR, Vol. 1, pgs. 22, 59. In the glove compartment, Det ective 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 transf erred to the Lamar County jail. See RR, Vol. 1, pg. 32. Later, Brenes change d 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 Detec tive Foreman told Brenes that since he had refused to talk with Sergeant Springer, he couldn’t speak with him unless he attempted to speak w ith 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 c onfessed 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 meth amphetamine 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 free1 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 Defe ndant’s motion to suppress.” See RR, Vol. 1, pg. 4. After a preliminary discu ssion (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 cour t called cause number 23814, which had been set for a jury trial on June 29 th

. See RR, Vol. 2, pg. 4. During the hearing, the trial judge l earned that the State and Brenes had reached a plea agreement. See RR, Vol. 2, pg. 4.-9- Consistent with the pl ea 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-fr ee 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 19 th , 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 25 th , Brenes, the appellant, f iled his notice of appeal in this Court. By electronic filing or about August 25 th , 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 19 th , 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 23 rd

. 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 estab lish the void judgment exception. The typographical error in the exact scie ntific 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 c ount 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 indenying the appellant’s motion to suppress because once probable cause wa s sufficiently established, the officers could search the appellant’s vehicle without a warrant.-11- (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 s ituations, 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 of fense 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 require d to face criminal trial proceedings without appointed counsel when the ri ght 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 c ourt 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 a nd, 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 werenot 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 “e ne” 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 controlle d substance, the indictment provided sufficient notice to the defendant. See id ., 2006 Tex. App. LEXIS 3671, at *-14- 8. In general, this Court reasoned th at the mere misspelling of a name did not prevent an indictment from alleging an offense, provided the indictment nevertheless provided the necessary no tice 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. Su ch a conclusion is particularly true when one considers that scientific names appear excessively complex to most laymen. The indictment, even with the misspelled word, accu sed 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 com pound 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 C ontrolled 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 st atute 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.-16- 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 alle ged that his sentences were illegal, and that he should be entitled to havehis 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 c ourt 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 Stat e’s Indictment Alleged a First Degree Felony in Count Two, Regardless of the Other Allegations . In the present case, the State’s indi ctment 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 offe nse of possession with intent to deliver more than four but less than 400 grams of methylenedioxy methamphetamine, popularly known as ecstasy, a first degr ee 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 le sser-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 th at “[a]n offense under S ubsection (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 19 th , the trial court pronounced the following: In count two you’re charged w ith possession with intent to deliver a controlled substance, more commonly known asecstasy, 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 Br enes in count 2 to “25 years in TDC, and, again, I’ll note for the record th at the drug-free zone allegation has been abandoned.” See RR, Vol. 2, pg. 9. In conclusion, the trial court’s se ntence of 25 years was within a term of five to 99 years, which was the app licable 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.--Tex arkana 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 af fords the same deference to a trial court’s rulings on mixed questions of la w 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 app lication 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 tria l 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 th eory 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 c ourt’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 thatthe police gained access to his vehicle by “using a false pretense, na mely, 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 preten se” 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 C ourt 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 mispl aced 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 Langs ton 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), D eaton 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 revealedthat “[s]he had helpedhim 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 denyi ng the appellant’s motion to suppress because Brenes had no reasonable expectation of privacy in what he knowingly exposed in Langs ton’s home, or in what Deaton might reveal about his pr evious wrongdoing. See id . Thus, the appellant’s argument as to “false pretense” or “orc hestrated entreaty” should be rejected. See id

. 3. Once Probable Cause Was Esta blished, 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. 11 1), however, “[a] vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and th ere is no requirement of exigent circumstances to justify su ch 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 wa rrantless 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 vehi cle 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 containe d 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 su fficient 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 Fore man articulated specific facts that were known to him prior to the appella nt’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 la wfully detained, as the trial court concluded (CR, pg. 108), Detective Forema n testified that he went outside to the green Toyota, and the vehicle ha d the driver’s side window open. See RR, Vol. 1, pgs. 20, 58. Detectiv e 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 s earch 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 c ould conduct a valid search of the car immediately, without a warrant. See Amos , 819 S.W.2d at 161. Because sufficient probable cause exis ted, 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). Accordi ngly, the trial court did not err in denying the appellant’s motion to s uppress, 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 fi rst 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 “stateme nts” 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 th e 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 ba sis 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 corre spond to any objection raised at trial.-28- See id . Even if Brenes had timely and specifically objected, he did not reassert that objection atthe 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 ar ticle 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 conte nded that “[i]f this Court decides to remand this case for trial, then it s hould provide the necessary guidance on the issue so that error does not creep b ack into the case[,] [and] [t]he State may otherwise decide to withdraw its concession.” See Appellant’s Brief, pg. 62. During the June 19 thhearing, however, the trial court specifically ruled that “the State has forever abandoned the use of the Defendant’s statement to Leigh Foreman in any cap acity, 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 Pari s 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 issu e/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 c ourt costs against the appe llant; 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-30- CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of th e 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 23 rdday 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