1 

No. 06-15-00095-CR

IN THE 

COURT OF APPEALS 

FOR THE SIXTH 

JUDICIAL DISTRICT OF TEXAS 

TEXARKANA 

JAMES ARTHUR BAXLEY, Appellant 

v.

THE STATE OF TEXAS, Appellee 

Appealed in Cause No. 1424312 

8

th Judicial District Court of Hopkins County, Texas 

APPELLEE’S BRIEF 

 By:/s/ Matthew H. Harris 

 Matthew H. Harris 

Assistant District Attorney 

 State Bar No 24083142 

P.O. Box 882 

Sulphur Springs, Texas 75483 

(903) 885-0641 

ACCEPTED

06-15-00095-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/27/2015 4:29:33 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/27/2015 4:29:33 PM DEBBIE AUTREY Clerk
2

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all 

parties to the trial court’s judgment and the names and addresses of all trial and 

appellate counsel:

Appellant Appellant’s appellate counsel

James Arthur Baxley Wade A. Forsman

P.O. Box 918

Sulphur Springs, TX 75483-0918

903.689.4144 telephone

903.689.7001 facsimile

wade@forsmanlaw.com

Appellant’s trial counsel

Cynthia Braddy

1109 Main Street

Commerce, TX 75428

903.243.3577 telephone

Appellee Appellee’s trial & appellate counsel

The State of Texas Matthew Howard Harris

Assistant District Attorney

8

th Judicial District

P.O. Box 882 (75483-0882)

114 Main Street

Sulphur Springs, TX 75482

903.885.0641 telephone

903.885.0640 facsimile

mharris@hopkinscountytx.org
3

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 4

ISSUES PRESENTED 5

STANDARD OF REVIEW 5

SUMMARY OF THE ARGUMENT 5

I. The trial court did not err in crediting the testimony of Mark Estes 6

II. The pretext doctrine is no longer valid law 6

III. Appellant failed to preserve error 8

PRAYER FOR RELIEF 8

CERTIFICATE OF SERVICE 9

CERTIFICATE OF WORD COUNT 9
4

INDEX OF AUTHORITIES

Cases

Archie v. State, 799 S.W.2d 340, 344 (Tex. App.—Houston [14th Dist.] 1990) .....7

Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991) ......................................7

Stewart v. State, 611 S.W.2d 434, 436 (Tex. Crim. App. 1981)...............................8

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) ..........................5

U.S v. Lefkowitz, 285 U.S. 452, 467 (1932).............................................................7

Rules

Texas Rule of Appellate Procedure 9.4(i)(3).............................................................9

Texas Rule of Appellate Procedure 33.1 ...................................................................9

Texas Rule of Appellate Procedure 38(a)................................................. 2
5

ISSUES PRESENTED

Appellant argues that: (1) the trial court should not have credited the 

testimony of Sergeant Mark Estes, and (2) law enforcement should not be allowed 

to evade the warrant requirement through “creativity”. Despite a lack of specificity, 

Appellant appears to refer to search warrants because arrest warrants existed in 

this case. Appellant argues that the trial court should have granted Appellant’s 

motion to suppress, and that failing to do so was an abuse of discretion.

STANDARD OF REVIEW

Upon reviewing the trial court’s denial of a motion to suppress, the standard 

of review is abuse of discretion with regard to the trial court’s factual findings. The 

standard of review relating to the trial court’s application of law to fact is de novo. 

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

SUMMARY OF THE ARGUMENT

Appellant was arrested pursuant to valid warrants which were relied upon by 

Sergeant Mark Estes in good faith, and were even admitted to evidence in the case. 

The trial court did not abuse its discretion in choosing to believe the testimony of 

Mark Estes. It does not “strain the credulity of a reasonable person” to believe the 

testimony of Sergeant Estes, and there is no evidence that he used Appellant’s 

valid arrest warrants as a pretext to “go fishing”. The pretext doctrine, which is 
6

apparently relied upon by Appellant, does not exist. Finally, even if the pretext 

doctrine did exist, Appellant did not preserve error. 

I. The trial court did not err in crediting the testimony of Sergeant 

Mark Estes during hearing on Appellant’s motion to suppress.

Appellant argues that the trial court erred in crediting the testimony of 

Sergeant Estes. Evidently the crux of Appellant’s argument is that the trial court 

abused its discretion by not finding that Sergeant Estes lied when he said that he 

had seen Appellant’s name on a warrant list, drove by his house, and arrested 

Appellant after confirming the warrants through dispatch. To believe the sworn 

testimony of a peace officer with 14 years’ experience, according to Appellant, 

constitutes an abuse of discretion. Even if that were true, Appellant cites no 

authority for this proposition or even the legal basis for his argument – he simply 

states that the motion to suppress should have been granted because Sergeant Estes 

was not being honest about his reasons for being at Appellant’s home. 

II. The pretext doctrine is no longer valid law

Appellant proposes that Sergeant Estes “went fishing” because he doesn’t 

normally serve warrants. Appellant insinuates that Sergeant Estes somehow 

behaved illegally or improperly and that the motion to suppress should have been 

granted because he used the municipal warrants as pretext to arrest and search 
7

Appellant for evidence of another crime. The fallacy of this argument, however, is 

that the “pretext doctrine” is no longer valid law. It formerly existed to prohibit

officers from using an arrest for one crime as pretext to search for evidence of 

another. Archie v. State, 799 S.W.2d 340, 344 (Tex. App.—Houston [14th Dist.] 

1990), aff'd sub nom. Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991) 

(citing U.S v. Lefkowitz, 285 U.S. 452, 467 (1932)). Under the old line of cases if

pretext formed the basis for a warrantless search, then any resulting evidence 

seized may have been rendered inadmissible. Id. In practical application, courts 

found it nearly impossible to determine the subjective intent of officers when 

making stops and arrests, so the pretext doctrine was explicitly abandoned in 

Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). As the law currently 

stands, an officer’s subjective intent in making an arrest is irrelevant as long as 

there exists an objectively valid, legal basis for the arrest. Id. Here, the arrest was 

made pursuant to arrest warrants which were admitted as evidence at trial by the 

trial counsel for Appellant (Vol. 5; p. 203; l. 2-23).

Appellant further complains that law enforcement should not be allowed to 

“evade the general requirement that warrants be used”, presumably referring to 

search warrants, because the arrest was simply pretext for Sergeant Estes to search 

Appellant for controlled substances. The law is quite clear that a search incident to 

a lawful arrest requires no warrant if the search is restricted to the arrestee and 
8

those objects immediately associated with the arrestee. Stewart v. State, 611 

S.W.2d 434, 436 (Tex. Crim. App. 1981). Here, Sergeant Estes arrested Appellant 

pursuant to a valid arrest warrant, and then proceeded to search him incident to that 

arrest. The contraband was located on Appellant’s person. There is no doubt that a 

search warrant was not required. 

III. Even if the pretext doctrine existed, Appellant failed to preserve 

error.

Appellant’s trial counsel, Cynthia Braddy, raised a single suppression issue 

on the morning of trial - that there may be an important legal distinction between 

capias pro fines and arrest warrants (Vol. 5; p. 173, l. 8 – p. 174., l. 1) - but Ms. 

Braddy never once mentioned that the search of Appellant and seizure of the 

controlled substance should be suppressed because the warranted arrest was pretext 

to search for evidence of another crime. Despite the fact that it appears as though 

Appellant is attempting to raise that very issue now, it was never raised in the trial 

court. The issue was not raised in the motion to suppress, and it has not been 

preserved for appellate review. Tex. R. App. P. 33.1.

PRAYER FOR RELIEF

The State requests that this Court AFFIRM Appellant’s conviction by the 

jury.
9

 By:/s/ Matthew H. Harris

 Matthew H. Harris

Assistant District Attorney

 State Bar No 24083142

P.O. Box 882

Sulphur Springs, Texas 75483

(903) 885-0641

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing 

instrument was forwarded to counsel for Appellant, Wade Forsman, on this the 27th

day of July, 2015.

 By:/s/ Matthew H. Harris

 Matthew H. Harris

Assistant District Attorney

CERTIFICATE OF WORD COUNT

Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,342 words.

 By:/s/ Matthew H. Harris

Matthew H. Harris

Assistant District Attorney