NO. 06-14-00157-CR

IN THE COURT OF APPEALS

FOR THE

SIXTH APPELLATE DISTRICT OF TEXAS

AT TEXARKANA

CINQUE ROSS

vs. 

THE STATE OF TEXAS

 Appealed from the 188th District Court of Gregg County, Texas

Trial Cause No. 43,104-A 

BRIEF FOR APPELLANT CINQUE ROSS

LAW OFFICES OF HOUGH-LEWIS (“LEW”) DUNN

201 E. Methvin, Suite 102

P. O. Box 2226

Longview, TX 75606

Texas	State	Bar	No.	06244600

Email: dunn@texramp.net

Tel: 903-757-6711

Fax: 903-757-6711

Counsel for Appellant

Appellant Respectfully Requests Oral Argument.

ACCEPTED

06-14-00157-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

3/11/2015 12:02:30 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 3/11/2015 12:02:30 PM DEBBIE AUTREY Clerk
STATEMENT REGARDING PARTIES TO THIS APPEAL

[RULE 38.1(a) TEX.R.APP. PROC.]

CINQUE ROSS

Appellant

Rick Hagan

Attorney at Law

Trial Counsel for Appellant

Texas State Bar No. 00786430

P.O. Box 3347

Longview, TX 75606

Tanya Reed

Texas State Bar No. 24039204

Assistant Criminal District Attorney 

Counsel for the State at Pre-Trial

Debbie Garrett

Texas State Bar No. 00790747

Assistant Criminal District Attorney 

Counsel for the State at Trial

101 E. Methvin Street, Suite 333

Longview, TX 75601

Hough-Lewis (“Lew”) Dunn

Attorney at Law

Counsel for Appellant on Appeal

Texas State Bar No. 06244600 

P.O. Box 2226

Longview, TX 75606

Zan Colson Brown

Texas State Bar No. 03205900

Assistant Criminal District Attorney 

Counsel for the State on Appeal

101 E. Methvin Street, Suite 333

Longview, TX 75601

ii
TABLE OF CONTENTS

PAGE

STATEMENT REGARDING PARTIES TO THIS APPEAL ..... ii

TABLE OF CONTENTS ................................................ iii

TABLE OF AUTHORITIES ............................................. vi

ISSUES PRESENTED .................................................... ix

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

THE JURY WAIVER ON FEBRUARY 14, 2014 ................... 2

HEARING FEBRUARY 20, 2014 .................................... 3

HEARING MARCH 7, 2014 ............................................ 3

BENCH TRIAL JULY 9, 2014 ......................................... 4

Raven Lister ........................................................ 5

Joey Chitwood ..................................................... 5

Appellant Cinque Abjual Ross ................................. 10

MOTION FOR NEW TRIAL OCTOBER 18, 2014 ................. 13

SUMMARY OF THE ARGUMENT ................................. 15

ARGUMENT AND AUTHORITIES ................................. 15

iii
TABLE OF CONTENTS (CONT’D)

PAGE

FIRST ISSUE, RESTATED ............................................ 15 

THE TRIAL COURT REVERSIBLY ERRED IN FAILING

TO PERMIT APPELLANT TO WITHDRAW HIS WAIVER

OF JURY TRIAL

FACTS ............................................................. 15

LAW AND ANALYSIS ......................................... 17

SECOND ISSUE, RESTATED ........................................ 20

THE VIDEO OF THE CUSTODIAL INTERROGATION AND ITS

EVIDENCE SHOULD HAVE BEEN SUPPRESSED, SINCE IT

WAS BASED UPON AN ILLEGAL INDUCEMENT BY AGENTS

OF THE STATE, AND, CONSEQUENTLY, MAKING IT

INVOLUNTARY

FACTS ............................................................. 20

LAW AND ANALYSIS ........................................ 21

THIRD ISSUE, RESTATED ........................................... 25

THE TRIAL COURT REVERSIBLY ERRED IN FINDING THE

SEARCH WARRANT VALID AND, THEREBY, ADMITTING

THE EVIDENCE TAKEN DURING THE SEARCH

FACTS ............................................................. 25

LAW AND ANALYSIS ......................................... 27

iv
TABLE OF CONTENTS (CONT’D)

PAGE

FOURTH ISSUE, RESTATED ........................................ 28

SEC. 46.04(a)(1), TEX. PENAL CODE, AS APPLIED TO

APPELLANT IS UNCONSTITUTIONAL, SINCE UNDER THE

SECOND AMENDMENT, U.S. CONST., IT IS A 

CONSTITUTIONALLY PROTECTED RIGHT FOR AN 

INDIVIDUAL TO POSSESS A FIREARM IN HIS HOME FOR

THE PURPOSES OF SELF-DEFENSE

FACTS ............................................................. 28

LAW AND ANALYSIS ........................................ 28

PRAYER FOR RELIEF ................................................ 32

CERTIFICATE OF DELIVERY ......................................... 33

CERTIFICATE OF COMPLIANCE ................................... 33

v
TABLE OF AUTHORITIES

CASES PAGE

Blake v. State, 125 S.W.3d 717 ........................................... 27

(Tex. App. – Houston [1st Dist.] 2003 no pet.)

Creager v. State, 952 S.W.2d 852 (Tex. Crim. App. 1997) ........... 22

District of Columbia v. Heller, 554 U.S. 570 (2008)................... 29 

Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009) ............ 17

Holmes v. State, 323 S.W.3d 163 (Tex. Crim. App. 2010)........... 24

McDonald v. Chicago, 561 U.S. 742 (2010) ..................... 28, 29, 30, 31

McGrew v. State, 286 S.W.3d 387 ...................................... 20

(Tex. App. – Corpus Christi 2008, no pet.)

Miranda v. Arizona, 384 U.S. 436 (1966) ............................. 21, 22, 23

Rios v. State, 901 S.W.2d 704 ........................................... 27

(Tex. App. – San Antonio 1995, no pet.)

Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) ......................... 29

Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014) .......... 29

Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) .......... 30

Williams v. Glash, 789 S.W.2d 261 (Tex. 1990) ...................... 18

Wolfe v. State, 917 S.W.2d 270 (Tex. Crim. App. 1996) ............. 22

vi
TABLE OF AUTHORITIES (CONT’D)

STATUTES AND RULES PAGE

U.S.CONST.

Second Amendment .......................................... 28, 29, 30, 31

Fourth Amendment ....................................................... 27

Fifth Amendment ......................................................... 21

Sixth Amendment ........................................................ 17

Fourteenth Amendment .................................................. 28

TEXAS CONST.

Art. 1, Sec. 9 ............................................................... 27, 28

Art. 1, Sec. 10 ............................................................ 17

TEX. CODE CRIM. PRO.

Art. 1.06 ................................................................... 27

Art. 1.12 .................................................................. 17

Art. 1.13 .................................................................. 17

Art. 18.01 ................................................................. 27

Art. 18.04(2) .............................................................. 27

Art. 38.22 ................................................................. 22

vii
TABLE OF AUTHORITIES (CONT’D)

STATUTES AND RULES PAGE

TEX. CODE CRIM. PRO.

Art. 38.22, Sec. 3(a) ..................................................... 22

Art. 38.23 .................................................................. 28

TEX. PENAL CODE

Sec. 46.04(a)(1) .......................................................... 28, 29

Sec. 46.04(a)(2) ........................................................... 30

TEX. R. APP. PRO.

Rule 38.1(a) ................................................................. ii

Rule 44.2(a) ................................................................ 24

OTHER SOURCES

Vernon’s Texas Codes Annotated, Penal Code, Vol. 6 .................. 30

Texas Legislative Reference Library, www.lrl.tx.us .................. 30

NOTE: All references to statutes and rules are to the relevant dates 

found in Vernon’s Texas Codes Annotated

viii
ISSUES PRESENTED

FIRST ISSUE:

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO PERMIT 

APPELLANT TO WITHDRAW HIS WAIVER OF JURY TRIAL

SECOND ISSUE:

THE VIDEO OF THE CUSTODIAL INTERROGATION AND ITS EVIDENCE 

SHOULD HAVE BEEN SUPPRESSED, SINCE IT WAS BASED UPON AN 

ILLEGAL INDUCEMENT BY AGENTS OF THE STATE, AND, 

CONSEQUENTLY, MAKING IT INVOLUNTARY 

THIRD ISSUE:

THE TRIAL COURT REVERSIBLY ERRED IN FINDING THE SEARCH 

WARRANT VALID AND, THEREBY, ADMITTING THE EVIDENCE TAKEN 

DURING THE SEARCH

FOURTH ISSUE:

SEC. 46.04(a)(1), TEX. PENAL CODE, AS APPLIED TO APPELLANT IS 

UNCONSTITUTIONAL, SINCE, UNDER THE SECOND AMENDMENT, U.S. 

CONST., IT IS A CONSTITUTIONALLY PROTECTED RIGHT FOR AN 

INDIVIDUAL TO POSSESS A FIREARM IN HIS HOME FOR THE PURPOSES 

OF SELF-DEFENSE

ix
1

NO. 06-14-00157-CR

IN THE COURT OF APPEALS

FOR THE

SIXTH APPELLATE DISTRICT OF TEXAS

AT TEXARKANA

CINQUE ROSS

vs. 

THE STATE OF TEXAS

Appealed from the 188th District Court of Gregg County, Texas 

Trial Cause No. 43,104-A 

BRIEF FOR APPELLANT CINQUE ROSS

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW CINQUE ROSS, Appellant herein, on appeal in Cause 

No. 43,104-A, and the “Judgment of Conviction” of the District 

Court for 188t h Judicial District Court of Gregg County, Texas, 

wherein he was found guilty of felon in possession of a firearm, and 

sentenced to a term of eight (8) years in the Texas Department of 

Criminal Justice, Institutional Division, the Honorable David 

Brabham presiding at the time of a bench trial without a jury, in 

which Appellant was Defendant, and in which the State of Texas was 
2

plaintiff and now Appellee, and makes this, his appeal to this Honorable Court.

STATEMENT OF FACTS

THE JURY WAIVER ON FEBRUARY 14, 2014

On February 14, 2014, Appellant and his counsel appeared before the Trial 

Court for the purposes of clarifying a plea agreement (2 RR 4). There were two cases 

before the court: this case and Cause No. 43,451-A, an information alleging 

possession of a controlled substance. The agreement was for Appellant to plead guilty 

to the felony information, get a six (6) year sentence, and the case of felon in 

possession of a firearm would be dismissed as well as a charge of possession of a 

prohibited substance in a correctional facility (2 RR 4-5). At first Appellant seemed to 

reject the offer, conferring with counsel during a recess (2 RR 5-8). Then he came 

back before the Court and stated that he would take the offer ( 2 RR 9-10).

As a part of the plea agreement, Appellant signed a waiver of jury trial in both 

cases (2 RR 10-11; CR 21). The Court told Appellant that, if he approved the jury 

waivers in both cases, he could never again come back and ask for a jury trial (2 RR

12). Counsel confirmed to the Court that Appellant understood “the implications of 

the jury waivers” (2 RR 12). A date was then set to return for the plea on February 20, 

2014 (2 RR 13). This was to enter a plea to the possession of a controlled substance (2 

RR 13).
3

HEARING FEBRUARY 20, 2014

On February 20, 2014, Appellant appeared with counsel and told the Court that 

he and his family were trying to hire retained counsel. Therefore, the scheduled plea 

was cancelled; Appellant had changed his mind about that plea and wanted now to go 

to trial on the “indicted case,” i.e., the felon in possession of a firearm case. The plea 

was cancelled (3 RR 4). 

HEARING MARCH 7, 2014

On March 7, 2014, Appellant appeared with counsel, presumably for a guilty 

plea to the felony information of possession of a controlled substance (4 RR 4). 

However, since the last court appearance, the lab report had come back; the amount of 

controlled substance was less than one gram, and was, therefore, not a felony amount; 

the State could not proceed on its pleadings (4 RR 4). The State was now offering a 

term of five (5) years TDCJ in return for a plea of guilty, which Appellant rejected (4 

RR 5). The issue of Appellant’s knowing and intelligent and voluntary waiver of a 

jury trial in the weapons case now was raised; “he believes he was confused when he 

waived the jury, that he did not understand what he was doing when he waived the 

jury” (4 RR 5). Counsel for Appellant stated: “We’re either ready to go forward on the 

weapons without a plea agreement to the Court or the Court rescinds the jury waiver , 

then I guess it would be set and we’ll be ready for a jury trial” (4 RR 5). The State 

believed that the jury waiver should be upheld by the Court, resulting in a bench trial 
4

(4 RR 6). As to the possession of drugs charge, the Trial Court stated: “although he 

did waive jury, that was on an information so he’s got a right to a jury on the 

possession, on the drug case” (4 RR 6). But the State maintained that both cases 

would be bench trials (4 RR 7).

Coming back to Appellant, he stated that he did not understand, saying, “I was 

unaware of that, though.” And counsel told him: “...you waived the jury...without the 

benefit of a plea agreement” (4 RR 8). Appellant persisted and stated: “I was unaware 

of that, Your Honor. That’s what – I didn’t know what I was signing. I was in 

emotional distress at the time.” He wondered if the Court found him “incompetent at 

the time”; but the Court said, “No. That you knew what you were doing, that you 

waived the jury...” (4 RR 8). The Court found that the jury waiver remained in place 

for the weapons case (4 RR 9).

BENCH TRIAL JULY 9, 2014 

The case was called for trial on July 9, 2014. Although the State announced 

“ready,” Appellant stated he was not ready, that his mother and family were hiring 

other counsel -- “ a new lawyer” – that he had been “misrepresented,” since his 

brother was “coming up here to sign a non-prosecution affidavit indicating the guns 

was theirs” (sic) (5 RR 4-5). The Court denied the request that the case be delayed and 

believed that current counsel “will do you an excellent job” (5 RR 9).
5

Appellant’s counsel was ready subject to a motion to suppress statements, the 

video, the search warrant, which would be taken up as the trial progressed (5 RR 10). 

Thereafter the indictment was read and a “not guilty” plea was entered (5 RR 

10-11). Witnesses were sworn, the Rule was invoked, and opening statements were 

made (5 RR 12-13).

Raven Lister

Ms. Lister stated that she was a parole officer, had worked at that position for 

six years, and knew Appellant (5 RR 14-15). She supervised Appellant’s parole for 

assault on a public servant in Cause No. 33,698-A from Gregg County; she did not 

know the date of the conviction (5 RR 15). She identified Appellant in open court (5 

RR 16). Appellant had been released from supervision on April 1, 2011 (5 RR 16).

Joey Chitwood

Officer Chitwood worked for the Kilgore Police Department, assigned to the

narcotics unit, also called the “C.OD.E.” unit (5 RR 17). After testifying to his 

employment, credentials and training, Officer Chitwood stated that he prepared an 

affidavit for a search warrant on September 18, 2013, based upon information from a 

confidential informant; the affidavit was presented to Judge Brabham, who reviewed it 

and signed a search warrant (5 RR 19-20). 

State’s Exhibit No. 2 was then marked; Officer Chitwood was then questioned 

about it (5 RR 19-20). The State then offered the Search Warrant into evidence, but 
6

counsel for Appellant objected, saying that “it does not particularly describe the 

property of the person to be searched. It is stale – it also does not set forth probable 

cause in the four corners of the document” (5 RR 21). The Trial Court carried along 

the objection, but received the exhibit so that he could review it as the trial went along 

(5 RR 21).

Officer Chitwood then took the search warrant to a briefing with the SWAT 

team, had a briefing, then went out to 405 Harris Street in Kilgore, Gregg County (5 

RR 21-23). Appellant was named in the warrant; he was identified in open court (5 

RR 22). The SWAT team went into the residence while Chitwood waited across the 

street. Once the location was secured, he entered the residence (5 RR 23). Four 

persons were there: Jason Coggins was in the front living room; Steven Cantrell was 

in the living room; Mildred Ross was in the area between the kitchen and living room, 

and Appellant was in the first bedroom on the left, “a blue in color bedroom” (5 RR 

24).

It was in that bedroom that agents found “all the narcotics and the handguns” (5 

RR 25). Over Appellant’s objection State’s Exhibits 3 and 4 were admitted into 

evidence: photographs from the scene of the search in the “blue” bedroom (5 RR 25). 

The witness stated that he anticipated finding handguns in that room, based upon the 

information from the informant (5 RR 26). Officer Chitwood said he found several 

small baggies of methamphetamine scattered throughout on the floor; then he found 
7

four handguns inside the closet: a Glock 27 .40-caliber lying on top of some Jordan 

tennis shoes; a .380 in the left shoe; a .38 Special in the right shoe; a .22 in the pocket 

of a FUBU jacket in the closet; ammunition was found on top of the dresser. At that 

site he also found mail that belonged to Appellant, and “a little bit of marijuana” (5 

RR 26-27).

Thereafter, the State showed Officer Chitwood a series of photographs from the 

scene of the various objects about which he had just testified: Exhibits 5-19 (5 RR 27-

28). Counsel for Appellant objected to their admission, referring to his objections to 

the search warrant (5 RR 28-29). The Trial Court overruled those objections and 

received the exhibits into evidence (5 RR 29). Then Officer Chitwood identified 

another set of exhibits (State’s Exhibits 20-24) as pictures of pieces of mail addressed 

to Appellant (address: 405 Harris, Kilgore), which were found in the bedroom (5 RR 

29-30). Appellant’s counsel made his same objections to those exhibits, and the 

objections were overruled, bringing the exhibits into evidence (5 RR 30).

Subsequent to that, the State next offered Exhibit 25, the .38 Special pistol; 

State’s 26, the firearm located on top of the shoes [Glock 27 .40-caliber]; State’s 27, 

.22 pistol; State’s 28, the .380 pistol. To all of these Appellant’s counsel raised the 

same objections and was overruled; the four weapons were received into evidence (5 

RR 30-34). In clarification, Appellant’s counsel stated: “And just to make sure I’m 

clear on the record, the objections that I’m saying same objection to are to the warrant, 
8

the search, and any evidence that was recovered from it”; to this the Trial Court 

replied: “Well, I’m going to receive the evidence subject to my ruling on your overall 

objection as to the search warrant.” (5 RR 34)

Then there was this exchange between Appellant’s counsel and the Trial Court:

Counsel: Right. Oh, okay. Thank you. I just didn’t know if you had ruled on that or 

not yet, and if you had I just need – there is another objection I need to make after that 

to the Court.

Court: Well, I’ve reviewed the search warrant, so I’m prepared to overruled your 

objection as to the search warrant at this time.

Counsel: Judge, I need to, for the record, object to the introduction of all the 

evidence that’s come in so far and further on to the prosecution of it under the Second 

Amendment to the Constitution, specifically that Penal Code Section 46.04(a) is an 

unreasonable restraint on the defendant’s right to keep and bear arms that has just 

come out within the past year or so by the Supreme Court that it’s a personal right. 

And we submit that weapons inside the defendant’s home is an unreasonable – or 

barring weapons inside the defendant’s home is an unreasonable restraint on the 

Second Amendment right. We’d object to it.

Court: Overruled.

(5 RR 34-35).
9

The State continued its evidence, showing Officer Chitwood State’s Exhibit 29, 

identified as a box of .40 caliber ammunition, found in the bottom drawer of the night 

stand (5 RR 36-37). Then State’s Exhibits 30 and 31: loose ammunition from 

locations seen in the pictures. State’s Exhibits 29-31 were offered; Appellant’s 

counsel made the same objection, which was overruled, and those exhibits were 

received into evidence. (5 RR 36).

A few days later, on September 20, 2013, after he was arrested and taken to jail, 

Appellant was subjected to custodial interrogation by Officer Chitwood; the Miranda 

warnings were read and signed by Appellant, as evidenced in State’s Exhibit 32 (5 RR 

37-38), received without objection. Then the State offered State’s Exhibit 33, a video 

interview of Appellant; to this Appellant objected (5 RR 39). During the time it took 

to get the video apparatus set up to play the video, Appellant informed the Trial Court 

that he would stipulate to State’s Exhibit 1, the prior felony conviction , and such was 

noted in the record (5 RR 39-40) with the exhibit received into evidence. Then State’s 

exhibit 33 was played, the interview between Appellant and Officer Chitwood (5 RR 

40). At the time of the offense, Appellant was off parole (5 RR 41); someone else put 

the firearms in Appellant’s closet, though he knows they are there; his fingerprints are 

on the weapons, and the location was his bedroom (5 RR 41-42). Appellant said that 

he placed the weapons in a plastic bag, in a backpack, and would walk with them to 

sell them (5 RR 42).
10

On cross-examination Officer Chitwood denied that Appellant had spoken to 

him at the time of arrest or mentioned that he wanted to talk with him or help him or 

work with him (5 RR 44). After Appellant had been in jail a while Officer Chitwood 

stated that he learned that Appellant wanted “to work”, i.e. be an informant (5 RR 45). 

However, Officer Chitwood and his unit and supervisor felt that the people Appellant 

mentioned already had informants working them; however, once Appellant got out on 

bond, Officer Chitwood said they tried to work with him, but it did not work out. He 

cited that fact that Appellant gave them “high hopes” but that Appellant would not 

report or contact them, or if he did, it was in a tardy manner (5 RR 45-46). Officer 

Chitwood framed this as being a part of what he called “work their charge off” (5 RR 

46). When asked if he was not going to try to help Appellant get his bond reduced in 

return for his cooperation, Officer Chitwood did not deny that statement, but said that 

after evaluating the information given to them by Appellant, he did not think it would 

be worth getting the $70,000 bond reduced (5 RR 47). 

After the State rested its case (5 RR 49), Appellant took the stand in his own 

defense.

Appellant Cinque Abjual Ross

Appellant told the Court that he had been advised of his right to testify or not, 

and decided that he would do so, because “I just want to be honest with him, you 

know, about my situation and the whole courts and everything” (5 RR 50).
11

Appellant stated that no one from law enforcement ever showed him or his 

mother the search warrant that day (5 RR 51). A few days after his arrest, Appellant 

decided that he would try to work with Officer Chitwood, that “...maybe I could –

they could help me or we could help each other” (5 RR 52). According to Appellant, 

Officer Chitwood stated that, if he would “admit to the guns that he could help me. 

That’s the only reason why I admitted to the guns” (5 RR 52).

Others shared the bedroom with Appellant: his nephew LaBryson Orange, and 

his son Jacobe Ross. He was unaware that the guns were there until officers “kicked 

the door in and put guns in my mom’s face and my little brother’s face and my 

nephew” (5 RR 52). Once Appellant bonded out of jail in September, he spoke to 

Officer Chitwood, who came to his house, and gave him some names – persons he had 

encountered while in jail: Christopher Stubbs and Rashunda Butler (5 RR 53). He also 

gave information to Detectives Lennox and Hope about someone named Bryan Butler, 

and he also told Officer Chitwood that he would wear a wire to help him (5 RR 54). 

However, Appellant stated that Officer Chitwood jeopardized him and his family 

when he came to his house after release from jail; Appellant had concerns that the 

people whose names he had given (like Bryan Burns) and drug dealers at the end of 

his street (Mike Wilson and Michael Dennis) might retaliate (5 RR 54-55; 66).

Appellant stated: since day one of arrest he had been trying to cooperate with police, 

because he was told that if he helped them, that they would help him (5 RR 55-56). 
12

Once he was bonded out, he had to be concerned – while assisting the police – for his 

and his family’s safety (5 RR 56).

As to punishment, Appellant stated that if found guilty, he hoped that the Court 

would be lenient, taking into consideration that he had been working with law 

enforcement, with rehab and probation (5 RR 57). He wanted to remain out of prison 

so he could be available for his son, to keep his son from going down the same road (5 

RR 57).

In cross-examination Appellant stated that before the custodial interview began 

and before Miranda rights were given, there was a conversation between him and 

Officer Chitwood, where Chitwood said, “Well, we know your fingerprints are on 

there [the pistols] so you might as well admit to it.” (5 RR 59-60). That was the 

context for why, on the video, he states that his fingerprints will be on the guns (5 RR 

60).

On re-direct, Appellant confirmed that this was the context for the remark about 

fingerprints on the pistols (5 RR 64-65). Before the video, Officer Chitwood told 

Appellant: “Now if you admit to this, that’s the only way I can help you” (5 RR 65).

This occurred before the officers brought in the Miranda warnings and administered 

them (5 RFR 65).

After Appellant rested his evidence, both sides rested and closed (5 RR 66). 

Argument ensued (5 RR 67-68). The State argued that the evidence proved the 
13

allegations (5 RR 67). Counsel for Appellant argued that the statement given by 

Appellant was the product of promises from law enforcement – the “type of promise 

that would induce someone to give a false confession” and that the confession was, 

therefore, not voluntary. Counsel also re-urged his objections and argued for an 

acquittal (5 RR 67-68). The Court found Appellant guilty as charged (5 RR 68). 

The punishment phase commenced, with the State offering State’s Exhibits 34-

43: prior convictions; with no objection from Appellant, the exhibits were received, 

and the State rested (5 RR 69). Appellant requested a pre-sentencing assessment on 

drug dependency, and the punishment phase was re-set for that to be done (5 RR 69-

70). Post-conviction bail was then set at $50,000 (5 RR 70). Punishment hearing was 

continued to August 4, 2014 (5 RR 71).

When the punishment phase reconvened on August 4, 2014, the Court stated 

that the pre-sentence report had been prepared, that he had seen it and read it (6 RR 4). 

With that, both sides rested and closed evidence (6 RR 5). After hearing arguments on 

punishment, the Court assessed punishments at eight (8) years confinement in TDCJ, 

with credit for time served (6 RR 9, CR 29).

MOTION FOR NEW TRIAL OCTOBER 18, 2014

On October 18, 2014, Appellant presented a Motion for New Trial (7 RR 4 ff). 

As a part of that hearing, counsel or the State informed the Court how, in another case 

involving Appellant, a lab report came back showing that the amount of controlled 
14

substance was less than the minimum needed to support an indictment, thus “...there 

was no way for him to plead to the possession of controlled substance information of 

what we thought was one gram to four grams” (7 RR 6). State’s counsel then related 

the events (see, Brief, above, pp. 3-4) at the hearing on March 7. The dates of when 

that information became known to Appellant and his counsel were placed before the 

Court: the officer’s initial report on the drug offense recited an amount over 1 gram (7 

RR 7, line 22 through page 8, line 15), with State’s counsel saying about the 

assumption that there was an amount of over 1 gram: “That was the basis of our 

agreement was that it came in at one to four grams, a third-degree felony, so we did an 

information based on that information” (7 RR 8). State’s counsel also told the Court 

that even though the lab report was received in the prosecutor’s office on January 15,

it was only on February 26 when she received the lab report (7 RR 6-7). Thus, the 

State was not actually aware of that lab report until everyone one had come to court on 

February 14, the date when the waiver of jury trial was signed and approved by the 

Court (7 RR 8). Those facts were agreed upon by the parties at the hearing on the 

Motion for New Trial (7 RR 9). After argument of counsel, the Court denied the 

Motion for New Trial (7 RR 25). Thereafter, this appeal comes forward for review by 

tis Honorable Court.
15

SUMMARY OF THE ARGUMENT

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO SET ASIDE THE 

WAIVER OF JURY TRIAL, SINCE IT WAS MADE INVOLUNTARILY AND

WITHOUT KNOWLEDGE OF FACTS UNDERLYING ITS EXECUTION. THE 

CUSTODIAL INTERROGATION OF APPELLANT SHOULD HAVE BEEN 

SUPPRESSED, SINCE IT WAS MADE UNDER INDUCEMENTS AND FALSE 

PROMISES FROM LAW ENFORCEMENT, MAKING IT UNRELIABLE. THE 

SEARCH WARRANT WAS DEFECTIVE, AND THE EVIDENCE DERIVED 

THEREFORE SHOULD HAVE BEEN SUPPRESSED, BECAUSE THE 

INFORMATION CONTAINED WITHIN ITS FOUR CORNERS WAS 

CONCLUSORY AND NOT SUFFICIENT TO PROVIDE PROBABLE CAUSE. 

THE TRIAL COURT ERRED IN FAILING TO FIND THE STATUTE 

UNCONSTITUTIONAL, SINCE IT CONFLICTS WITH THE SECOND 

AMENDMENT RIGHT OF A PRIVATE CITIZEN TO KEEP ARMS IN HIS OWN 

HOME.

ARGUMENT AND AUTHORITIES

FIRST ISSUE, RESTATED

THE TRIAL COURT REVERSIBLY ERRED IN 

FAILING TO PERMIT APPELLANT TO WITHDRAW 

HIS WAIVER OF JURY TRIAL

FACTS

The evidence shows that Appellant, at the time he executed his waiver of jury 

trial in this case, was charged under two different instruments: an indictment in the 

instant case and an information alleging possession of a controlled substance (PCS) in 

an amount of more than one gram but less than four grams, a third degree felony (2 

RR 4). In fact, the caption for the Reporter’s Record for February 14, 2014 (Vol. 2 of 

the RR), indicates both cause numbers: 43,104-A, and 43,451-A (2 RR 1). When the 

parties appeared on February 14, the case they intended to proceed with a guilty plea 
16

on was the PSC case – with an offer of six years -- , and that the case for felon in 

possession of a firearm would be dismissed, along with a fail to ID misdemeanor and 

other drug offenses (2 RR 4-5). This was stated by both the prosecutor and 

Appellant’s counsel (2 RR 5). At first Appellant stated that he rejected the plea 

agreement (2 RR 6-7), but after conferring with counsel, he later told the Court that he 

did accept the offer and the agreement (2 RR 10-12).

However, as shown in the record from the hearing on March 7, and according to 

the facts as related by State’s counsel at the hearing on the Motion for New Trial, the 

state of knowledge of both the parties at the hearing on February 14, 2014, was flawed 

and based upon a false assumption that can be traced back to an initial law 

enforcement report that believed there was an amount over one gram. The assumption 

was that the amount of controlled substance was sufficient to support the allegation

and proof of a third degree felony. Although the lab report reflecting an amount less 

than one gram had been received into the prosecutor’s offices on January 15, 2014, the 

prosecutor (and by extension, Appellant and his counsel) only became aware of the 

report on February 26, eleven days after the hearing where the right to a jury trial was 

waived. Added to this, once Appellant sought to retract his waiver of jury trial, the 

record contained no evidence concerning how such a retraction and reinstatement of 

the right to jury trial would affect the administration of justice in the trial court, 

impact the State’s witnesses, or otherwise prejudice the State. No evidence exists that 
17

might support a negative impact on the court and its duties or the prosecution in 

putting on its case. See, 4 RR, passim.

LAW AND ANALYIS

The right to a jury trial rests in the Sixth Amendment to the U.S. Constitution 

and its state counterpart in Art. 1, Sec. 10, TEX. CONST.; see, Art. 1.12, TEX. CODE 

CRIM. PRO. However, the accused may waive his right to a jury trial. See, Art. 1.13, 

TEX. CODE CRIM. PRO., so long as the requirements of the statute are met. 

However, it has also been stated that once a defendant waives his right to a jury trial, 

he does not have the “unfettered right to reassert that right” Hobbs v. State, 298 

S.W.3d 193, 197-198 (Tex. Crim. App. 2009). If a defendant wants to withdraw the 

written waiver, then he has the burden to show an absence of adverse consequences, 

namely, that the re-instatement of the jury trial will not interfere with the orderly 

administration of the business of the court, or result in unnecessary delay or 

inconvenience of the witnesses, or prejudice the State. Here, Appellant contends that 

no inconvenience for the court or State was ever placed in the record. Although those 

principles were discussed briefly by the Court and by the parties at the hearing on the 

Motion for New Trial, nothing was ever placed in the record that would serve as the 

basis for those kinds of problems.

There are those considerations. Additionally, Appellant contends that there was 

a fundamental infirmity in executing the waiver of his right to a jury trial. As shown 
18

above, an essential, crucial fact upon which he made such a waiver was not, in fact, 

true. Both parties, at the time the waiver was executed, believed that that case was 

heading toward a plea founded upon evidence that would support the allegations and 

proof of possession of a controlled substance in an amount over one gram but less

than four grams (see, Brief, above, hearing on March 7, pp. 3-4; and evidence at 

hearing on Motion for New Trial, pp. 13-14). 

One would call this a mutual mistake in civil law, and the same should hold true 

in criminal proceedings. One may look to the decision of our Texas Supreme Court 

for guidance: Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990), where, writing for 

a unanimous court on whether a party could cancel a personal injury release, Doggett, 

J., stated: “Pursuant to the doctrine of mutual mistake, when parties to an agreement 

have contracted under a misconception or ignorance of a material fact, the agreement 

will be avoided.” (citation omitted). Justice Dogget goes on to say, “The question of 

mutual mistake is determined not by self-serving subjective statements of the parties’ 

intent...but rather solely by objective circumstances surrounding the execution of the 

release, such as the knowledge of the parties at the time of signing...the amount of 

consideration paid, the extent of negotiations...the haste or lack thereof in obtaining 

the release” Id.

Here, there is no doubt that both parties had no knowledge on February 14, 

2014, that the lab report would fail to support a plea to a felony drug charge. To the 
19

contrary, both the State and Appellant entered into the agreement based upon a crucial 

factual assumption that was not, in fact, true. The “consideration” involved was a 

guilty plea, a waiver of jury trial, and acceptance of six years incarceration – pretty 

stout consideration in terms of life, liberty and waiver of constitutional rights. 

Moreover, it would appear from all evidence in the record that the agreement was 

reached after negotiations of the parties that failed to discover that fundamental 

mistake of fact. 

One can also observe that there was breakdown in information upon which a 

reasonable person would have based a decision. No reasonable person would have 

decided to plead guilty to an offense and take six years incarceration if, in fact, the 

evidence/proof was lacking upon which to sustain a conviction. 

It might be argued that Appellant waived his right to a jury trial as to the felon 

in possession of a firearm separately from the waiver of jury trial in the PCS case, that 

because they were different cases, it was too late to go back and reverse the waiver, 

that the trial court expressly told Appellant that he was waiving his jury trial right as 

to each offenses. One problem with that argument is that the ignorance of the facts 

permeated the entire proceedings, not just the PSC case. The agreement on February 

14 was that the felon in possession of a firearm case was going to be dismissed; 

Appellant had no reason to think he would ever go to trial on that allegation. An 

additional weakness of that argument is that the two cases were entwined: neither case 
20

was being addressed without the other; they were interrelated by express design of 

both parties, State and Appellant. 

This is somewhat analogous to the problem of pleading guilty: it must be done 

knowingly, intelligently, and voluntarily. See, McGrew v. State, 286 S.W.3d 387, 391 

(Tex. App. – Corpus Christi 2008, no pet.). Appellant, therefore, additionally contends 

that the waiver of jury trial was involuntary because, in signing the waiver as a part of 

the plea agreement, Appellant had every reason to believe that the felon in possession 

of a firearm case would go away, that is would be dismissed in consideration for his 

plea to the other felony of PCS.

For all of those reasons, Appellant would urge this Honorable Court to reverse 

the trial court’s determination of the waiver of right to jury trial, reverse the conviction, 

and remand for a new trial.

SECOND ISSUE, RESTATED

THE VIDEO OF THE CUSTODIAL INTERROGATION 

AND ITS EVIDENCE SHOULD HAVE BEEN 

SUPPRESSED, SINCE IT WAS BASED UPON AN 

ILLEGAL INDUCEMENT BY AGENTS OF THE STATE, 

AND, CONSEQUENTLY, MAKING IT INVOLUNTARY 

FACTS

The circumstances of the custodial interrogation are set forth above (Brief, p. 

12). Appellant stated that, prior to beginning the actual custodial interview as seen on 

the video, Officer Chitwood told him that, if he would admit to the offense of 
21

possession of the firearms, he, Chitwood, would help him. Then, according to 

Appellant, the officers began to record the session, gave Miranda warnings, and took 

the statement, where Appellant makes incriminating statements, essentially admitting 

to the offense, keeping his part of the bargain reached off camera, i.e., helping the 

officers so that they would “help” him.

Counsel for Appellant argued that the statement given by Appellant was the 

product of promises from law enforcement – the “type of promise that would induce 

someone to give a false confession” and that the confession was, therefore, not

voluntary. (5 RR 67-68).

LAW AND ANALYSIS

The accused has the Fifth Amendment right not to make a statement that is selfincriminating. Miranda v. Arizona, 384 U.S. 436 (1966), establishes that there must be 

some warnings given to the accused before he makes such a self-incriminating 

statement during custodial interrogation. This constitutional principal finds its State 

statutory counterpart in Art. 38.22, Sec. 3(a) TEX. CODE CRIM. PRO., which sets 

out certain requirements that must be followed in order for a video custodial statement 

to be admissible in Texas courts, in essence that prior to the statement but during the 

recording that the Miranda warning be administered and that the accused knowingly, 

intelligently, and voluntarily waives the rights.
22

At trial Appellant’s counsel objected to the video statement as having been the 

product of wrongful inducement. No evidence is in the record that contradicts 

Appellant’s version of how there was a quid pro quo offered by Officer Chitwood 

before the video interview began. Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. 

App. 1996) outlined the following analysis for involuntariness: (1) a failure to comply 

with Art. 38.22, TEX. CODE CRIM. PRO.; (2) failure to comply with the dictates of 

Miranda; or (3) the statement was taken in violation of due process or due course of 

the law because the statement was not freely given due to coercion, force, or improper 

influence. Furthermore, it has been stated that to induce a confession, a promise must 

be (1) positive, (2) made or sanctioned by someone in authority and (3) of such an 

influential nature that a defendant would speak untruthfully. Creager v. State, 952 

S.W.2d 852, 854 (Tex. Crim. App. 1997)

Here the statement is suspect under three out of three of those standards seen in

both Wolfe and Creager. First: Officer Chitwood failed to comply with Art. 38.22, 

TEX. CODE CRIM. PRO., because he began the interrogation prior to administering 

the warnings: he offered the quid pro quo to Appellant “off the record,” a clear 

violation of the statute. Additionally, time after time throughout the interview Officer 

Chitwood held out the prospect that Appellant could “work off” his charges as 

Appellant and Chitwood discuss details of drug dealers. 1Second, Officer Chitwood 

 1 References are to the times seen in State’s Exhibit No. 33 (by hour and minute): 10:45, 10:46 
23

failed to comply with Miranda because his promises went beyond the allowable 

conduct under Miranda and the promises certainly came from someone clothed with 

authority. Third, there was an improper influence by holding out the quid pro quo of 

“you help us and we’ll help you,” such that the inducements of “working off your 

charges” and a probation would be likely to induce a false confession.

When one looks at the totality of the circumstances (see, Creager v. State, 952 

S.W.2d at 856), it is obvious that this inducement had substance, because several 

times during the interview Appellant supplied names to Officer Chitwood, hoping 

thereby that his “help” would gain a reciprocal “help” from Chitwood. The 

inducement had all of the hallmarks of impropriety: the balance of power was 

weighted very much in favor of Chitwood: he held all the cards, whereas Appellant 

was locked up, looking at what he believed were multiple felonies and a prison term; 

next, Chitwood held out hope to Appellant that he could assist him in lowering his 

bond and even a probation if he “helped” Chitwood (though that hope was mislaid, 

 

(bond); 10:50 (knowledge of persons selling drugs); 10:47 (location of person selling drugs); 10:48 

(Appellant naming names); 10:48 (Chitwood telling Appellant “you have to do the work”); 10:49-51 

(Appellant describes a drug dealer in detail, his physical attributes, where he lives, that he uses a 

motorcycle and sell crystal meth and how he sells it and for what price; 11:05-08 (describes another 

drug dealer and her whereabouts and other information); 11:08-09 )Chitwood says: “we can help you 

out...but it’s going to be your doing the work”); 11:09 (Chitwood tells Appellant he can be “doing 

so many people to work off your cases”); 11:10 (Chitwood tells Appellant: “ we can work off” the 

charges against him and “get probation”); 11:11-12 (Chitwood tells Appellant there are two ways to 

go about this, including Appellant making a video of a buy and then being available to testify in 

court); 11:18 (Appellant tells Chitwood, “I am ready to work” and can use his mother’s vehicle); 

11:19 (Chitwood asks Appellant if he can get more guns); 11:20 (Chitwood promises Appellant he 

will get his bond lowered the following Monday; he also tells Appellant that “you’ve been honest” –

referring back to the initial premise upon which the conversation began, that if appellant was honest 

with him, that Chitwood would “help” him). 
24

since Chitwood never intended to assist in lowering the bond, and said as much on the 

witness stand -- see 3 RR 45, lines 14-16); finally, even though Appellant did provide 

information to Chitwood, Chitwood characterized it as of little value, although he 

never said that to Appellant during the interview. So all the winning cards were in 

Chitwood’s hand in making improper inducements to Appellant, whose position could 

not have been much weaker.

The trial court reversibly erred in admitting the video confession into evidence. 

Analyzed under Rule 44. 2(a), TEX. R. APP. PRO., it cannot be said beyond a

reasonable doubt that the error did not contribute to Appellant’s conviction. Holmes v. 

State, 323 S.W.3d 163 (Tex. Crim. App. 2010). The video statement was used in the 

direct evidence from Officer Chitwood (5 RR 41-42); when the State cross-examined 

Appellant, the statements on the video were emphasized (5 RR 59-60); when the State 

made summation, it referred to the video (5 RR 67). It would be difficult to separate 

the proof of the State’s case from its use of the video at strategic parts of the trial. 

There was harmful, reversible, error. The cause should be reversed and remanded for a 

new trial.
25

THIRD ISSUE, RESTATED

THE TRIAL COURT REVERSIBLY ERRED IN FINDING 

THE SEARCH WARRANT VALID AND, THEREBY, 

ADMITTING THE EVIDENCE TAKEN DURING THE 

SEARCH

FACTS

Officer Chitwood described how he used information from a confidential 

informant to draft his affidavit for a search warrant (5 RR 19-20). State’s Exhibit 2 

was the affidavit, admitted over the objections of Appellant’s counsel (5 RR 20-21).

The affidavit recites several things that, upon trial, were not true. First, it states that 

Appellant has “a reputation for illegal narcotics trafficking” and that Appellant has 

two arrests, where he was “charged with drug law offenses.” The record shows 

otherwise: the only evidence of a prior conviction for contraband was the Class B 

Misdemeanor conviction for possession of marihuana found in State’s Exhibit 38. 

Hardly the stuff of narcotics trafficking or multiple arrests. Next, the Affidavit states 

that based upon the information from the confidential informant (“CI”) and his own 

experience, Chitwood “believes it is reasonable to expect to find other paraphernalia 

and evidence of Methamphetamine trafficking,” listing an array of the sorts of things 

he “reasonably expected to find”: scales, containers, records of sales, unpackaged 

contraband, money, and devices for using the drugs. None of that was found. Though 

he postulates the reliability of his CI, and that the information came within 72 hours, 

the search does not bear this out. Again, the affidavit sets out the CI’s observation of
26

Methamphetamine, in small clear baggies and also in a large bag, but he/she does not 

indicate (nor does Chitwood state in his affidavit) where that contraband would be 

found in the house. Then there is the phrasing of just how Officer Chitwood had relied 

in the past upon the CI: “CI has acted as an informant for Affiant in the past, giving 

Affiant information concerning illegal activity on numerous occasions. On each 

occasion, CI’s information has proved to be true and has led to seizures of illegal 

controlled substances...” (emphasis supplied). Note that Chitwood does not say what 

sort of illegal activity the CI observed and reported. Was it drugs? Was it theft? Was it 

forgery? Assault? Murder? Robbery? Burglary? It might have been any number of 

“illegal activities,” but the illegal activity of possessing narcotics is not stated. That 

the results in the past were the capture of narcotics proves nothing about the nature of 

the “illegal activity” reported by the CI. Was the seizure of contraband serendipitous? 

Accidental? Unforeseen? In spite of other information given? Happenstance? Luck? 

Good fortune? A roll of the dice? Taking the odd over the even? Betting on red 

instead of black? That does not establish reliability; it only establishes that Chitwood 

seized narcotics. How is there a cause and effect? Why would the CI be reliable in 

this instance? Does one simply get to make an intuitive leap within the four corners of 

the document? Hardly. One must, therefore, question the reliability of the CI as well 

as the accuracy of his/her information. 
27

LAW AND ANALYSIS

Underlying any analysis of the validity of a search warrant and its affidavit is 

the Fourth Amendment and its State counterpart, Art. 1, Section 9, TEX. CONST. See

also, Art. 1.06, TEX. CODE CRIM. PRO., Art. 18.01, TEX. CODE CRIM. PROC., 

Art. 18.04(2), TEX.CODE CRIM. PRO. See, Rios v. State, 901 S.W.2d 704, 706-07 

(Tex. App. – San Antonio 1995, no pet.). Blake v. State, 125 S.W.3d 717 (Tex. App. 

– Houston [1st Dist.] 2003 no pet.) gives a concise recitation of case law and principles 

concerning the analysis of suppression questions on appeal: reviewed under an abuse 

of discretion, the four corners doctrine, probable cause, reliability of the informant. 

There it was stated that the reliability of the informant should be based upon the 

assertion that “that the informant had given information in the past regarding narcotics 

trafficking which had proved correct” Id., at 726. 

Is that what occurred in the instant case? No. As set out above, in several 

important respects the informant was unreliable and without foundation, and the basis 

for reliance lacked sufficient detail for that reliance. The affidavit only says that the CI 

gave information concerning illegal activity on numerous occasions. That is all. It 

does not say that the CI “had given information in the past regarding narcotics 

trafficking which had proved correct.” That is a distinction with a difference. It does 

not meet the standard of reliability. The Trial Court abused its discretion and erred in 

failing to suppress the evidence taken from the illegal search in violation of the Fourth 
28

Amendment and Art. 1, Sec. 9, TEX. CONST. See also, art. 38.23, TEX. CODE 

CRIM. PRO. The conviction should be reversed and the cause remanded to the trial 

court. 

FOURTH ISSUE, RESTATED

SEC. 46.04(a)(1), TEX. PENAL CODE, AS APPLIED TO 

APPELLANT IS UNCONSTITUTIONAL, SINCE,

UNDER THE SECOND AMENDMENT, U.S. CONST., IT 

IS A CONSTITUTIONALLY PROTECTED RIGHT FOR 

AN INDIVIDUAL TO POSSESS A FIREARM IN HIS 

HOME FOR THE PURPOSES OF SELF-DEFENSE

FACTS

Upon the search of his bedroom in Appellant’s home, law enforcement seized 

four pistols of varying calibers, and it was based upon that seizure that Appellant was 

charged and convicted of being a felon is possession of a firearm under the indictment 

(CR, 2). At trial, counsel for Appellant argued to the Court that there was a 

constitutional impediment to conviction, based upon his client’s Second Amendment 

rights, interpreted in recent decisions by the United States Supreme Court (5 RR 35).

LAW AND ANALYSIS 

Appellant was indicted and convicted under Sec. 46.04(a)(1), TEX. PENAL 

CODE. At the time of his arrest he was in his own home and in his own bedroom. The 

pistols were found in his closet (5 RR 27-28; 30-34). McDonald v. Chicago, 561 U.S. 

742 (2010) sets out the principle that, under the Second Amendment, and under 

Fourteenth Amendment Due Process considerations, a person in his own home has a 
29

right to possess a firearm in that place for defensive purposes. McDonald v. City of 

Chicago, 561 U.S. at 791. That decision followed the Second Amendment decision in 

District of Columbia v. Heller, 554 U.S. 570 (2008). 

There is a distinction between a facial challenge to a statute’s constitutionality 

and an “as-applied” challenge. It has been characterized as follows: “A facial 

challenge claims that a statute, by its terms, always operates unconstitutional. United 

States v. Salerno, 481 U.S. 739, 745 (1987). Tex. Workers’ Comp. Comm’n v. 

Garcia, 893 S.W.2d 504, 518 (Tex. 1995). By contrast, an as-applied challenge 

asserts that a statute, while generally constitutional, operates unconstitutionally as to 

the claimant because of her particular circumstances. City of Corpus Christi v. Pub. 

Util. Comm’n of Tex., 51 S.W.3d 231, 240 (Tex. 2001); Garcia, 893 S.W.2d at 518 

n. 16.” Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 702 (Tex. 2014). See also, 

Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983), holding that “...in passing on the 

constitutionality of a statute, we begin with the presumption of validity. It is to be 

presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere 

difference of opinion, where reasonable minds could differ, is not a sufficient basis 

for striking down legislation as arbitrary or unreasonable” (citation omitted).

Appellant’s challenge to Sec. 46.04(a)(1), TEX. PENAL CODE, is an “asapplied” challenge under the particular facts and circumstances of his case. 
30

Appellant does not contend that the statute, no matter what the facts of any case, 

runs afoul of the Second Amendment. Rather, he tailors his argument to say that, in 

the confines of his own home, Appellant, as any other American citizen, has the 

constitutionally protected right to keep and bear arms for his own protection. This 

was expressed very pointedly during Appellant’s testimony, where several times he 

showed concern for his safety and the safety of his family, owing to the nefarious 

individuals who inhabited his neighborhood, who would tend to take a dim view of 

his actions as an informant for law enforcement. See, Appellant’s testimony at 5 RR 

54-55, 56, 60. The statute was codified in 1973/1974, well before these Supreme 

Court decisions; even its most recent amendments in 2009 (adding subsections f and 

g) precede the McDonald v. City of Chicago decision. See, legislative history in 

Vernon’s Texas Codes Annotated, Penal Code, Vol. 6, at p. 84. See also, in general, 

the Texas Legislative Reference Library online at www.lrl.tx.us. 

Moreover, one should note that the statute does not categorically deny a felon 

the right to possess a forearm. Section 46.04(a)(2), TEX. PENAL CODE, states that 

it is an offense for a felon to possess a firearm “...after the period described in 

Subdivision (1) at any location other than the premises at which the person lives”

(emphasis supplied). It has also been held that the Legislature has not excluded the 

justification of necessity as a defense to this offense. See, Vasquez v. State, 830 

S.W.2d 948, 950 (Tex. Crim. App. 1992). So, the legislature finds no crime in 
31

possessing a firearm in one’s home after the period of five years set in Subsection 

(a)(1). Appellant contends that the time limitation should now yield to the decision 

in McDonald v. City of Chicago. The proof in this case shows that about two and 

one-half years (almost 30 months) had elapsed since Appellant was released from 

parole supervision,2 more than a reasonable span of time to see whether or not he 

would commit some sort of act of violence with a firearm. Moreover, if it is a 

defense for a felon to possess a firearm under the doctrine of necessity, surely in 

light of our Supreme Court’s recent holdings, it is now a defense to the offense to 

possess the firearm in one’s home for self-defense.

In light of these qualifications to the offense, it would be reasonable to 

conclude that, given the recent extension of the Second Amendment right to citizens 

to possess a firearm in their own homes for self-defense, the statute as applied to 

Appellant is unconstitutional. For those reasons, the conviction should be reversed 

and the cause remanded with a judgment of acquittal.

 2 He was released from parole supervision on April 1, 2011 (5 RR 16). The offense in the case at bar 

was alleged to have occurred on or about September 18, 2013 (CR 2).
32

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, CINQUE ROSS, APPELLANT, 

prays that, upon review and consideration of the facts, the reasoning, the arguments,

and authorities herein, this Honorable Sixth Court of Appeals will reverse the 

conviction of Appellant and will remand the cause with a judgment of acquittal or, 

alternatively, remand the cause for a new trial, and for such other and further relief 

to which Appellant is justly entitled.

Respectfully submitted,

LAW OFFICES OF LEW DUNN

201 E. Methvin, Suite 102

P. O. Box 2226

Longview, TX 75606

Texas State Bar No. 06244600

Email: dunn@texramp.net

Tel: 903-757-6711

Fax: 903-757-6712

/S/ Hough-Lewis “Lew” Dunn

Hough-Lewis “Lew” Dunn
33

CERTIFICATE OF DELIVERY

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

for Appellant was sent by first class mail and/or hand-delivered and/or sent

electronically to the office of Hon. Zan Colson Brown, Assistant Gregg County

Criminal District Attorney, Gregg County Courthouse, 101 E. Methvin, Suite 333,

Longview, Texas on this 11th day of March, 2015.

/S/ Hough-Lewis “Lew” Dunn

Hough-Lewis “Lew” Dunn

CERTIFICATE OF COMPLIANCE

I certify that the foregoing document complies with Rule 9, TEX. R. APP.

PROC., regarding length of documents, in that exclusive of caption, identity of parties

and counsel,statement regarding oral argument, table of contents, index of authorities,

statement of the case, issues presented, statement of jurisdiction, statement of

procedural history, signature, proof of service, certification, certificate of compliance,

and appendix, it consists of 8,130 words.

/S/ Hough-Lewis “Lew” Dunn

Hough-Lewis “Lew” Dunn