Patrick Glenn Sowells v. State ( 2015 )


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  •                                                                                  ACCEPTED
    01-14-00461-CR
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    6/18/2015 4:09:55 PM
    No. 01-14-00461-CR
    CHRISTOPHER PRINE
    CLERK
    In the
    Court of Appeals
    FILED IN
    For the                   1st COURT OF APPEALS
    First District of Texas                  HOUSTON, TEXAS
    At Houston                 6/18/2015 4:09:55 PM
    CHRISTOPHER A. PRINE
    ♦                                Clerk
    No. 1352806
    th
    In the 228 Criminal District Court
    Of Harris County, Texas
    ♦
    PATRICK GLENN SOWELLS, JR.
    Appellant
    V.
    THE STATE OF TEXAS
    Appellee
    ♦
    STATE’S APPELLATE BRIEF
    ♦
    DEVON ANDERSON
    District Attorney
    Harris County, Texas
    BRIDGET HOLLOWAY
    Assistant District Attorney
    Harris County, Texas
    Texas Bar No. 24025227
    holloway_bridget@dao.hctx.net
    ALEXIS MITCHELL
    Assistant District Attorney
    Harris County, Texas
    Harris County Criminal Justice Center
    1201 Franklin, Suite 600
    Houston, Texas 77002
    Tel.: 713·755·5826
    ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
    STATEMENT REGARDING ORAL ARGUMENT
    Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests
    oral argument only if appellant requests oral argument.
    IDENTIFICATION OF THE PARTIES
    Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
    interested parties is provided below.
    Complainant, victim, or aggrieved party:
    Lauren McBride Deberry
    Counsel for the State:
    Devon Anderson  District Attorney of Harris County
    Bridget Holloway  Assistant District Attorney on appeal
    Alexis Mitchell  Assistant District Attorney at trial
    Appellant or criminal defendant:
    Patrick Glenn Sowells, Jr.
    Counsel for Appellant:
    Alexander Bunin  Public Defender of Harris County
    Mark C. Kratovil —Assistant Public Defender on appeal
    Craig Still —Assistant Public Defender at trial
    Te’iva Bell —Assistant Public Defender at trial
    Trial Judge:
    Honorable Marc Carter  Presiding Judge
    TABLE OF CONTENTS
    STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
    IDENTIFICATION OF THE PARTIES ................................................................................ 1
    TABLE OF CONTENTS........................................................................................................... 2
    INDEX OF AUTHORITIES .................................................................................................... 3
    STATEMENT OF THE CASE ................................................................................................ 6
    STATEMENT OF FACTS ....................................................................................................... 6
    SUMMARY OF THE ARGUMENT ..................................................................................... 8
    REPLY TO APPELLANT’S FIRST ISSUE PRESENTED ................................................ 9
    Standard of Review ................................................................................................................ 9
    Relevant Facts & Procedures ............................................................................................ 10
    A. Timeline ..................................................................................................................... 10
    B. Suppression Hearing .............................................................................................. 12
    C. Evidence at Trial .......................................................................................................15
    Analysis ................................................................................................................................... 16
    A. Probable Cause Extended to Storage Lot ......................................................... 16
    B. Sergeant Wilson’s Search of the Car was Harmless .......................................20
    REPLY TO APPELLANT’S SECOND ISSUE PRESENTED......................................... 22
    Relevant Facts & Procedures ............................................................................................22
    Applicable Authority ........................................................................................................... 23
    Analysis ...................................................................................................................................25
    CONCLUSION ........................................................................................................................ 28
    CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ....................... 29
    2
    INDEX OF AUTHORITIES
    CASES
    Adams v. Williams,
    
    407 U.S. 143
    , 
    92 S. Ct. 1921
    , 
    32 L. Ed. 2d 612
    (1972) ........................................................18
    Alabama v. White,
    
    496 U.S. 325
    , 
    110 S. Ct. 2412
    , 
    110 L. Ed. 2d 301
    (1990) ....................................................18
    Amador v. State,
    
    221 S.W.3d 666
    (Tex. Crim. App. 2007).................................................................... 9, 10
    Brother v. State,
    
    166 S.W.3d 255
    (Tex. Crim. App. 2005).........................................................................18
    Chambers v. Maroney,
    
    399 U.S. 42
    , 
    90 S. Ct. 1975
    , 26 L.Ed.3d 419 (1970) ........................................................20
    Colorado v. Bannister,
    
    449 U.S. 1
    , 
    101 S. Ct. 42
    , 
    66 L. Ed. 2d 1
    (1980)...................................................................17
    Crawford v. Washington,
    
    541 U.S. 36
    , 
    124 S. Ct. 1354
    , 
    158 L. Ed. 2d 177
    (2004).....................................................24
    Ellis v. State,
    
    705 S.W.2d 261
       (Tex. App. —San Antonio 1986, no pet.) .......................................................................17
    Esco v. State,
    
    668 S.W.2d 358
    (Tex. Crim. App. 1982).........................................................................18
    Florida v. Meyers,
    
    466 U.S. 380
    , 
    104 S. Ct. 1852
    , 
    80 L. Ed. 2d 381
    (1984)..............................................19, 20
    Gutierrez v. State,
    
    221 S.W.3d 680
    (Tex. Crim. App. 2007).................................................................. 17, 20
    Guzman v. State,
    
    955 S.W.2d 85
    (Tex. Crim. App. 1997) ............................................................................ 9
    3
    Johnson v. State,
    
    68 S.W.3d 644
    (Tex. Crim. App. 2002)......................................................................... 10
    Keehn v. State,
    
    279 S.W.3d 330
    (Tex. Crim. App. 2009) ....................................................................... 16
    Langham v. State,
    
    305 S.W.3d 568
    (Tex. Crim. App. 2010)..................................................................21, 24
    Marras v. State,
    
    741 S.W.2d 395
    (Tex. Crim. App. 1987)......................................................................... 27
    Mayfield v. State,
    
    848 S.W.2d 816
      (Tex. App. —Corpus Christi 1993, pet. ref’d).............................................................. 27
    Michigan v. Thomas,
    458 U.S.259, 
    102 S. Ct. 3079
    , 
    73 L. Ed. 2d 750
    (1982) ........................................ 17, 19, 20
    Montanez v. State,
    
    195 S.W.3d 101
    (Tex. Crim. App. 2006) ......................................................................... 10
    Nelson v. State,
    
    855 S.W.2d 26
      (Tex. App. —El Paso 1993, no pet.) .................................................................................18
    Romero v. State,
    
    800 S.W.2d 539
    (Tex. Crim. App.1 990) ......................................................................... 9
    State v. Duarte,
    
    389 S.W.3d 349
    (Tex. Crim. App. 2012).........................................................................18
    State v. Kelly,
    
    204 S.W.3d 808
    (Tex. Crim. App. 2006) ...................................................................... 10
    State v. Ross,
    
    32 S.W.3d 853
    (Tex. Crim. App. 2000) ........................................................................... 9
    Tennessee v. Street,
    
    471 U.S. 409
    , 
    105 S. Ct. 2078
    , 
    85 L. Ed. 2d 425
    (1985) ...................................................24
    4
    Uniroyal Goodrich Tire Co. v. Martinez,
    
    928 S.W.2d 64
      (Tex. App. —San Antonio 1995), aff'd, 
    977 S.W.2d 328
    (Tex. 1998) ...................... 27
    United States v. Johnson,
    
    587 F.3d 625
    (4th Cir. 2009) ............................................................................................25
    United States v. Palacious,
    
    677 F.3d 234
    (4th Cir. 2012) ...................................................................................... 25, 27
    United States v. Sparks,
    
    291 F.3d 683
    (10th Cir. 2002) ............................................................................................17
    Wall v. State,
    
    184 S.W.3d 730
    (Tex. Crim. App. 2006)........................................................................24
    Wiede v. State,
    
    214 S.W.3d 17
    (Tex. Crim. App. 2007) ....................................................................... 9, 10
    RULES
    TEX. R. APP. P. 38.2(a)(1)(A) .....................................................................................................1
    TEX. R. APP. P. 39.1 .......................................................................................................................1
    TEX. R. APP. P. 44.2(a) ............................................................................................................. 21
    TEX. R. APP. P. 9.4(g) ..................................................................................................................1
    TEX. R. EVID. 703 .......................................................................................................................26
    TEX. R. EVID. 705 .......................................................................................................................26
    CONSTITUTIONAL PROVISIONS
    U.S. CONST. amend. VI .........................................................................................................24
    5
    TO THE HONORABLE COURT OF APPEALS:
    STATEMENT OF THE CASE
    Appellant, Patrick Glenn Sowells, Jr., was charged with aggravated robbery.
    The charge was enhanced with a prior felony conviction for felon in possession of a
    weapon. (CR at 13). Appellant entered a plea of “not guilty.” (RRIII at 9). After
    the jury found appellant guilty as charged, the trial court sentenced him to
    confinement for 35 years. (CR at 225-26; RRIV at 36; RRV at 67). A written
    notice of appeal was timely filed. (CR at 230).
    ♦
    STATEMENT OF FACTS
    Appellant was a leader in a criminal gang known as Forum Park Crips.
    (RRV at 26). The gang was known for selling narcotics and committing robberies
    and murders. (RRV at 26). In appellant’s own words: “I sell drugs. I sell bitches.
    I make money.” (RRV at 40; State’s Exhibit 35).
    Late night on March 25, 2012, Lauren Deberry left a club with Cruse
    Williams to go to a nearby motel. (RRIII at 58, 67-69). While getting out of the
    6
    car in the parking lot, appellant and Joshua Johnson 1 jumped out of a goldish
    colored Chrysler with guns and ran towards them demanding they give them
    everything. (RRV at 69-70, 88). The men took her bag of clothing, purse, wallet,
    cash, ID, and car keys. (RRV at 70). Williams was told to strip down to his
    boxers. Appellant and Johnson took his clothes (shirt, jeans, belt, and shoes), as
    well as his cash and jewelry. (RRV at 71). Unclothed, Williams took off running
    and either appellant or Johnson shot two bullets in his direction. Williams was
    not shot. (RRV at 71-72; State’s Exhibit 3). Appellant was arrested after it became
    clear that his car was used in several robberies and Deberry tentatively identified
    him in a photo array. (RRV at 79, 85).
    ♦
    1
    Johnson testified that he and appellant committed the aggravated robbery. (RRV at
    87-89).
    7
    SUMMARY OF THE ARGUMENT
    Reply to Appellant’s First Issue Presented on Appeal:
    Because probable cause does not stop once a car becomes immobile, and
    because any error in admitting the evidence seized from that search was harmless,
    the trial court did not err in denying appellant’s motion to suppress the evidence
    seized from that search (extraneous victims’ car keys and necklace).
    Reply to Appellant’s Second Issue Presented on Appeal:
    Because Texas Rules of Evidence 703 and 705 contemplate the use of
    inadmissible evidence for an expert to use with his training and experience to form
    an opinion, and, assuming some evidence in the exhibit comes from testimonial
    hearsay, because the Confrontation Clause does not prevent witnesses from
    offering their independent judgments based in part on inadmissible evidence, the
    trial court did not err in admitting the gist of the expert’s testimony in a helpful
    format (State’s Exhibit 60).
    ♦
    8
    REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
    In his first issue presented on appeal, appellant argues the trial court erred
    in denying his motion to suppress evidence obtained from the warrantless search
    of his impounded car days after his arrest. Because probable cause does not stop
    once a car becomes immobile, and because any error in admitting the evidence
    seized from that search was harmless, the trial court did not err in denying
    appellant’s motion to suppress the evidence seized from that search (extraneous
    victims’ car keys and necklace).
    STANDARD OF REVIEW
    A trial court’s ruling on a motion to suppress evidence is reviewed under a
    bifurcated standard of review. Amador v. State, 
    221 S.W.3d 666
    , 673 (Tex. Crim.
    App. 2007); Guzman v. State, 
    955 S.W.2d 85
    , 89 (Tex. Crim. App. 1997).            In
    reviewing the trial court’s decision, this Court is not to engage in its own factual
    review. See Romero v. State, 
    800 S.W.2d 539
    , 543 (Tex. Crim. App.1 990). The trial
    judge is the sole trier of fact and judge of the credibility of the witnesses and the
    weight to be given their testimony. Wiede v. State, 
    214 S.W.3d 17
    , 24–25 (Tex. Crim.
    App. 2007); State v. Ross, 
    32 S.W.3d 853
    , 855 (Tex. Crim. App. 2000), modified on
    other grounds by State v. Cullen, 
    195 S.W.3d 696
    (Tex. Crim. App. 2006). Therefore,
    this Court gives almost total deference to the trial court’s rulings on (1) questions
    9
    of historical fact, even if the trial court’s determination of those facts was not
    based on an evaluation of credibility and demeanor, and (2) application-of-law-to-
    fact questions that turn on an evaluation of credibility and demeanor. See 
    Amador, 221 S.W.3d at 673
    ; Montanez v. State, 
    195 S.W.3d 101
    , 108–09 (Tex. Crim. App. 2006);
    Johnson v. State, 
    68 S.W.3d 644
    , 652–53 (Tex. Crim. App. 2002). Stated another
    way, when reviewing the trial court’s ruling on a motion to suppress, this Court
    must view the evidence in the light most favorable to the trial court’s ruling. See
    
    Wiede, 214 S.W.3d at 24
    ; State v. Kelly, 
    204 S.W.3d 808
    , 818 (Tex. Crim. App. 2006).
    RELEVANT FACTS & PROCEDURES
    A. Timeline
    The following timeline shows the events that established appellant as a
    suspect of several robberies:
    March 23:   Mohammad Abdlahi was robbed. Abdlahi
    and a friend drove to a parking lot of a club
    and learned it was closed. Two men in a
    Chrysler 300 told them to go to another
    club. When they drove to that club, they
    saw the Chrysler 300 had followed them
    there. They did not go into that club and
    instead drove to an apartment complex.
    Again the Chrysler 300 was there and the
    two men approached them with a gun in the
    parking lot and told them to get out of the
    car. Abdlahi and his friend were told to take
    off their shirt and pants. They were told to
    stay on the ground or they would be shot.
    Abdlahi’s wallet, phone, watch, and Infinity
    10
    car were taken. Abdlahi gave officers a
    description of the car appellant and Johnson
    jumped out of. Abdlahi later tentatively
    identified appellant in a photo array as one
    of the men who robbed him. (RRIII at 145-
    56).
    An abandoned gold car, with the door open,
    located at 9797 Meadowglen. A handgun
    was seized from the front passenger
    floorboard before the car was towed. (RRIII
    at 123-24). Officer’s unable to get registered
    owner’s name from the expired paper plates.
    Several names found inside the glove
    compartment, including appellant’s name
    was on a traffic ticket inside the car. (RRIII
    at 125).
    March 24?: Someone gets the car out of storage lot.
    March 25:   After leaving a club and driving to a motel,
    Deberry and Williams were robbed in the
    parking lot. Two men who jumped out of a
    goldish Chrysler with guns told Williams to
    take off his clothes while they were robbed
    of their property. (RRIII at 69-85).
    March 26:   Cops were flagged down in a club parking
    lot. An unidentified man informed the
    officers that appellant and Johnson had just
    pulled a gun on them and tried to rob them.
    Appellant and Johnson were arrested after a
    gun was recovered. Appellant’s car was
    towed to police impoundment lot and
    inventoried. Appellant was charged with
    unlawfully carrying a weapon and
    possession of a controlled substance.
    (RRIII at 24-29).
    11
    March 28:    Abdlahi’s Infinity was recovered from an
    apartment complex at 9797 Meadowglen.
    Sergeant Wilson, who was investigating
    Abdlahi’s case, learned from apartment
    management that earlier a brownish
    Chrysler 300 with a gun on the passenger
    floorboard had been reported abandoned at
    the same apartment complex. (RRIII at 122-
    28, 161).
    March 29:    Sergeant Wilson learns that a similar car
    has been impounded and searches that car.
    The search yielded Abdlahi’s property (keys
    to the Infinity and a necklace) and
    information with appellant’s name on it.
    (RRIII at 136-38).
    ?:           At some point, someone gets the car out of
    storage lot.
    April 19:    Appellant flees the Chrysler when officers
    attempted to arrest him on an open warrant.
    A gun is found in the front passenger seat.
    He is captured and charged with felon in
    possession of a weapon. Appellant admitted
    to Sergeant Wilson that the Chrysler was
    his car. (RRIII at 163-69).
    B. Suppression Hearing
    Officer A. Schattle testified he was flagged down in a club parking lot by a
    guy who pointed at appellant and Johnson and said, “The guy just pulled a gun on
    me. He tried to rob me.” (RRIII at 25). The officer and his partner then went
    towards appellant and Johnson. Appellant jumped in a Chrysler “30M” (according
    to the officer’s report) and Johnson hung out by a parked car. (RRIII at 26).
    12
    Officer Schattle order appellant out of his car. The car rolled until it stopped at a
    curb. (RRIII at 26). Appellant and Johnson were detained in the back of the
    patrol car while the officers investigated. (RRIII at 26). The officers located a gun
    under the car next to where appellant was initially parked. (RRIII at 26). Officer
    Schattle also saw a baby bottle in plain view in the car. (RRIII at 27-28). “It’s
    usually codeine [inside the bottle]. People put it in there to say that’s it’s juice for
    their kid, but it’s in fact codeine syrup.” The baby bottle in appellant’s car, in fact,
    contained codeine. (RRIII at 27). While appellant and Johnson were in the back
    of the patrol car, appellant was recorded telling his uncle “to try and kick [the
    gun] further under the car.” (RRIII at 27). Appellant and Johnson were both
    arrested and the car was towed. (RRIII at 28).
    Sergeant Wilson testified she was assigned Abdlahi’s case. While doing her
    investigation, she ran the description of the suspects’ car, a brownish Chrysler
    300. (RRIII at 12). In doing so, she discovered the same described car was
    involved in another case. (RRIII at 12). She also found out that a car matching the
    same description was towed after being located abandoned with a pistol on the
    floorboard.   (RRIII at 13). The officer who recovered the abandoned car had
    inventoried the car in an attempt to find the owner. He found paperwork with
    “names and stuff,” but could not conclude who owned the car. (RRIII at 13). One
    of the pieces of paper found in the car was a traffic citation with appellant’s name
    13
    on it. (RRIII at 13). When Sergeant Wilson ran appellant’s name, she found out
    he had arrests for robbery and murder. (RRIII at 14). In fact, he was last arrested
    in a Chrysler 300 just days after Abdlahi’s robbery and that car had been towed to
    a storage lot. (RRIII at 14).
    Sergeant Wilson and her partner drove to the storage lot to see if the car
    was still there. It was. The paper plates on the car had expired and did not
    indicate appellant owned the car. (RRIII at 15). They then went inside the car to
    “obtain any more objects out of the car to try to find the owner.” (RRIII at 15).
    They then discovered what she believed to be Abdlahi’s car keys to the Infinity
    and his friend’s gold necklace. (RRIII at 15). They were still unsure of who owned
    the car and believed “it may have been purchased by one person, but was actually
    owned by [appellant].” (RRIII at 16). After appellant’s arrest in April, he told
    Sergeant Wilson he owned the car. (RRIII at 18, 22).
    The trial court found: (1) the search of the car on March 26th impermissible
    and suppressed evidence of the codeine found in the car; (2) the seizure of the
    abandoned gun outside the car legal and admissible; (3) the search of the car on
    March 29th legal; and (4) appellant’s recorded statement admissible. (RRIII at 43-
    44).
    14
    C. Evidence at Trial
    The jury heard all of the evidence above, including evidence of the
    extraneous offenses (except the excluded evidence that codeine was located in
    appellant’s car after his arrest at the club). They heard the following additional
    evidence as well:
    Lieutenant M. Parrie testified he was assigned this robbery case. (RRIII at
    100). When first reviewing the report, another officer told him that he had already
    picked up the video from the scene. (RRIII at 102). After speaking to Deberry,
    who gave him a description of the suspects, he reviewed the video. (RRIII at 103).
    After Sergeant Wilson gave him appellant’s name as a suspect with the same
    “MO,” he compared it to the video and concluded it was the same person. (RRIII
    at 104-106; State’s Exhibits 4-17, 19). He then used Sergeant Wilson’s photo array
    that included appellant’s photo and showed it to Deberry. (RRIII at 107; State’s
    Exhibit 18).
    Deberry further testified that one of the two men who held a gun on her and
    Williams was wearing a baseball cap with a “C” on it. (RRIII at 79). In a photo
    array she viewed weeks later, she tentatively identified that man as appellant.
    (RRIII at 75, 108-09). She also identified appellant in court as that man. (RRIII at
    85).
    15
    Johnson testified he was “working” with appellant. (RRIII at 87). On
    March 25th, they both had guns and ran up on a man and a woman at a motel and
    robbed them. (RRIII at 87-88). Appellant was wearing a hat with a “C” on it.
    (RRIII at 89). He also testified that two days before, he and appellant were at a
    club when they followed two guys and took their car and a gold chain. (RRIII at
    90-93).
    ANALYSIS
    Appellant argues the trial court abused its discretion in denying his motion
    to suppress Sergeant Wilson’s search of the car while at the storage lot. He
    complains the search was not a search incident to arrest, was not based upon
    probable cause, and was not an inventory. Because probable cause does not stop
    once a car becomes immobile, and because any error in admitting the evidence
    seized from that search was harmless, the trial court did not err in denying
    appellant’s motion to suppress Abdlahi’s keys and necklace.
    A. Probable Cause Extended to Storage Lot
    “Under the automobile exception, law enforcement officials may conduct a
    warrantless search of a vehicle if it is readily mobile and there is probable cause to
    believe that it contains contraband.” See Keehn v. State, 
    279 S.W.3d 330
    , 335 (Tex.
    Crim. App. 2009). Probable cause to search exists when reasonably trustworthy
    facts and circumstances within the knowledge of the officer on the scene would
    16
    lead persons of reasonable prudence to believe that an instrumentality of a crime
    or evidence pertaining to a crime will be found. Gutierrez v. State, 
    221 S.W.3d 680
    ,
    685 (Tex. Crim. App. 2007).
    Furthermore, an officer’s observation of contraband or evidence of a crime in
    plain view inside a car can be used to establish probable cause to seize the
    contraband or evidence and gives them probable cause to search the entire car.
    Colorado v. Bannister, 
    449 U.S. 1
    , 4, 
    101 S. Ct. 42
    , 
    66 L. Ed. 2d 1
    (1980) (per curiam); cf.
    United States v. Sparks, 
    291 F.3d 683
    , 690–91 (10th Cir. 2002) (collecting cases
    applying the plain view doctrine and automobile exception in combination to
    uphold warrantless vehicle searches and explaining “if an officer has lawfully
    observed an object of incriminating character in plain view in a vehicle, that
    observation, either alone or in combination with additional facts, has been held
    sufficient to allow the officer to conduct a probable cause search of the vehicle”).
    Probable cause can also be generated by a prior inventory search that produces
    contraband. See Michigan v. Thomas, 458 U.S.259, 261-62, 
    102 S. Ct. 3079
    , 
    73 L. Ed. 2d 750
    (1982); see also Ellis v. State, 
    705 S.W.2d 261
    , 263 (Tex. App. —San Antonio 1986,
    no pet.) (op. on remand) (recognizing that under Thomas the discoveries made
    while conducting an inventory search can give an officer probable cause to search
    the rest of the car).
    17
    When police receive information from a private citizen whose only contact
    with police is a result of having witnessed a criminal act committed by another,
    the credibility and reliability of the information is inherent. State v. Duarte, 
    389 S.W.3d 349
    , 356 (Tex. Crim. App. 2012); Esco v. State, 
    668 S.W.2d 358
    , 360–61 (Tex.
    Crim. App. 1982). This rule also applies if the citizen is the victim of a crime.
    Nelson v. State, 
    855 S.W.2d 26
    , 30 (Tex. App. —El Paso 1993, no pet.).2
    Here, the police had an identification of two suspects from an inherently
    reliable witness who claimed appellant and Johnson had just attempted to rob him
    with a gun. See 
    Gutierrez, 221 S.W.3d at 685
    ; 
    Esco, 668 S.W.2d at 360-61
    . One of the
    men identified to the police (appellant) was attempting to leave the scene in his
    car. These facts and circumstances were sufficient to warrant a prudent man in
    believing that the suspects had committed or were committing an offense and
    evidence pertaining to that crime, a gun, could be in the car. Moreover, a baby
    bottle suspected of containing codeine was seen in plain view in the car and was
    2
    A detention based on facts supplied by a citizen-informer, which are adequately
    corroborated by the detaining officer, does not violate the Fourth Amendment. Brother v.
    State, 
    166 S.W.3d 255
    , 259 (Tex. Crim. App. 2005). Corroboration does not require the
    officer personally observe the conduct giving rise to a reasonable suspicion that a crime is
    being, has been, or is about to be committed. 
    Id. at 259
    n. 5 (citing Adams v. Williams, 
    407 U.S. 143
    , 147, 
    92 S. Ct. 1921
    , 
    32 L. Ed. 2d 612
    (1972)). “Rather, corroboration refers to
    whether the police officer, in light of the circumstances, confirms enough facts to
    reasonably conclude that the information given to him is reliable and a temporary
    detention is thus justified.” 
    Id. (citing Alabama
    v. White, 
    496 U.S. 325
    , 330–31, 
    110 S. Ct. 2412
    , 
    110 L. Ed. 2d 301
    (1990)).
    18
    seized pursuant to an inventory search. See 
    Bannister, 449 U.S. at 4
    ; 
    Thomas, 458 U.S. at 261-62
    . Thus, Officer Schattle had probable cause to search the car
    pursuant to believing evidence of a crime was within, 3 and because the
    observation of codeine was in plain view and was seized pursuant to an inventory
    search. Because Officer Schattle had probable cause to believe appellant had
    committed a felony that involved a weapon, and after detaining appellant shortly
    after the commission of the crime observed codeine in “plain view” in the
    appellant’s car and was seized during an inventory search, the officer had probable
    cause to search the rest of the car for further incriminating evidence.
    In Florida v. Meyers, 
    466 U.S. 380
    , 
    104 S. Ct. 1852
    , 
    80 L. Ed. 2d 381
    (1984), the
    defendant Meyers’ car was impounded at the time of his arrest. A warrantless
    inventory search of the car was conducted, several items were seized, and the car
    was towed away. Around 8 hours later, a police officer conducted another
    warrantless search of the car while at the storage lot, which produced additional
    evidence. 
    Id. at 381.
    The Supreme Court, quoting its rule in Michigan v. Thomas,
    reiterated that “‘justification to conduct such a warrantless search does not vanish
    3
    The State submits the trial court’s ruling, suppressing the codeine found in the car, was
    in error. Regardless, the trial court did not make a ruling on the inventory search and
    the evidence supports the car was lawfully inventoried after appellant’s arrest. Probable
    cause arose in three ways: believing the car contained fruits of a crime (the attempt to
    rob a citizen-informer/victim); codeine in plain view in the car, and/or the seizure of
    codeine pursuant to a valid inventory search.
    19
    once the car has been immobilized.’” 
    Meyers, 466 U.S. at 382
    . Though the Court
    did not explicitly say so, it appears the evidence seized during the inventory search
    of Meyers’ car at the time of his arrest generated probable cause that the car
    contained additional evidence. Under Michigan v. Thomas, probable cause generated
    by an inventory search validates a warrantless search. 
    Id., 458 U.S.
    at 261. The
    “warrantless search” in Thomas, as well as Chambers v. Maroney, 
    399 U.S. 42
    , 
    90 S. Ct. 1975
    , 26 L.Ed.3d 419 (1970), refers to a search based upon probable cause. See 
    id. Here, probable
    cause existed for the officers to search for a weapon. See
    
    Gutierrez, 221 S.W.3d at 685
    . Furthermore, once the codeine was seen in plain
    view, the officers had probable cause to search the rest of the car. See 
    Bannister, 449 U.S. at 4
    . And, even if the codeine was not seen in plain view, it was seized during
    a proper inventory search and provided probable cause to search the rest of the car
    for further evidence. See 
    Meyers, 466 U.S. at 382
    ; 
    Thomas, 458 U.S. at 261
    . Probable
    cause did not vanish because the car was immobilized in the storage lot. See 
    id. Sergeant Wilson’s
    search of the car, therefore, was legal.
    B. Sergeant Wilson’s Search of the Car was Harmless
    Even assuming Sergeant Wilson’s search of the car was illegal, the result to
    this case was harmless. If Abdlahi’s keys and his friend’s necklace were seized
    through violation of the Fourth Amendment and should have been excluded from
    20
    evidence through appellant’s motion to suppress, this Court is to reverse
    appellant’s conviction unless it can determine beyond a reasonable doubt the
    admission of the evidence did not contribute to appellant’s conviction. See TEX. R.
    APP. P. 44.2(a); Langham v. State, 
    305 S.W.3d 568
    , 582 (Tex. Crim. App. 2010).
    Prior to Sergeant Wilson’s search of the car, appellant was already a suspect
    as his name was found on a traffic ticket in the car and a criminal history search of
    his name showed he was connected to several robberies and murders. Sergeant
    Wilson’s search for the owner of the car suspected as used in several robberies or
    attempted robberies yielded evidence to another crime, not this crime. While this
    evidence was used to show appellant’s motive operandi in committing robberies, the
    record shows appellant was identified in court by Deberry as the man wearing the
    “C” hat who robbed her. Further, Johnson testified that he and appellant were
    responsible for the robberies of Abdlahi and Deberry and that appellant wore a hat
    with a “C” on it when he robbed Deberry. It is beyond a reasonable doubt that the
    admission of the keys and necklace did not contribute to appellant’s conviction.
    Appellant’s first issue presented on appeal should be overruled.
    ♦
    21
    REPLY TO APPELLANT’S SECOND ISSUE PRESENTED
    In his second issue presented on appeal, appellant argues the trial court
    erred in allowing State’s Exhibit 60, a power point aid on “Form Park Crips,” into
    evidence during his punishment phase. Appellant complains the evidence is a
    violation of the Confrontation Clause. Because Texas Rules of Evidence 703 and
    705 contemplate the use of inadmissible evidence for an expert to use with his
    training and experience to form an opinion, and, assuming some evidence in the
    exhibit comes from testimonial hearsay, because the Confrontation Clause does
    not prevent witnesses from offering their independent judgments based in part on
    inadmissible evidence, the trial court did not err in admitting the gist of the
    expert’s testimony in a presentation (State’s Exhibit 60).
    RELEVANT FACTS & PROCEDURES
    After the jury found appellant guilty as charged, appellant elected the court
    decide his punishment. Sergeant J. Wood testified for the State. The sergeant is
    assigned to the Houston Police Department’s gang division and interacts with
    gang members on a daily basis. (RRV at 24-25). He knows appellant as a member
    of the Forum Park Crip criminal street gang. (RRV at 26). Forum Park Crips are a
    small and violent street gang that predominately hangs out in a Forum Park
    apartment complex. (RRV at 26). The gang has a “clear, defined organizational
    22
    chart” that includes appellant at the top. (RRV at 27-28). The sergeant compiled
    the information he knew about the Forum Park Crips in a “presentation” that he
    created and that was admitted as State’s Exhibit 60. (RRV at 28-29). Appellant
    objected to State’s Exhibit 60 as “compiled of hearsay” and a violation of the
    Confrontation Clause. (RRV at 30). The court overruled appellant’s objections,
    noting the exhibit would be helpful in understanding the sergeant’s testimony.
    (RRV at 30).
    State’s Exhibit 60 contains “background information” (when gang
    developed, where primarily located in Houston (with google map printout), and
    ties to other locations), “specific locations” (3 specific addresses where the gang is
    known to hang out), “criminal activity” (crimes Forum Park Crip members have
    been tied to, including capital murder, and that their primary revenue is garnered
    though sale of narcotics), and “leadership” and “leadership structure” (photos of
    members together with their names and indicating appellant is/was third from the
    top). Sergeant Wood then testified about everything contained in the exhibit.
    (RRV at 30-35).
    APPLICABLE AUTHORITY
    The Confrontation Clause of the Sixth Amendment to the United States
    Constitution provides, “In all criminal prosecutions, the accused shall enjoy the
    right ... to be confronted with the witnesses against him[.]” U.S. CONST. amend.
    23
    VI. This protection prohibits the admission of testimonial statements unless the
    declarant is unavailable to testify and the accused had a prior opportunity to
    cross-examine the declarant. Crawford v. Washington, 
    541 U.S. 36
    , 59, 68, 
    124 S. Ct. 1354
    , 
    158 L. Ed. 2d 177
    (2004); 
    Langham, 305 S.W.3d at 575
    –76. The Court of
    Criminal Appeals has explained:
    [T]he Supreme Court has observed that an out-of-court
    statement, even one that falls within its definition of
    “testimonial” statements, is not objectionable under the
    Confrontation Clause to the extent it is offered for some
    evidentiary purpose other than the truth of the matter
    asserted. When the relevance of the out-of-court
    statement derives solely from the fact that it was made,
    and not from the content of the assertion it contains,
    there is no constitutional imperative that the accused be
    permitted to confront the declarant. In this context, the
    one who bears “witness against” the accused is not the
    out-of-court declarant but the one who testifies the
    statement was made, and it satisfies the Confrontation
    Clause that the accused is able to confront and cross-
    examine him.
    
    Langham, 305 S.W.3d at 576
    –77 (citing 
    Crawford, 541 U.S. at 59
    ; Tennessee v. Street, 
    471 U.S. 409
    , 414, 
    105 S. Ct. 2078
    , 
    85 L. Ed. 2d 425
    (1985)). The trial court’s ruling
    admitting the evidence is reviewed under a bifurcated standard, giving deference
    to the court’s findings regarding any pertinent historical facts but reviewing de
    novo the court’s application of the law to those facts. Wall v. State, 
    184 S.W.3d 730
    ,
    742–43 (Tex. Crim. App. 2006).
    24
    ANALYSIS
    While recognizing Sergeant Wood was the person who created State’s
    Exhibit 60, appellant argues the information contained within State’s Exhibit 60
    “was compiled from testimonial hearsay statements obtained during questioning
    by law enforcement.” 4 Crawford, however, does not prevent expert witnesses from
    offering their judgments because they were formed in part by otherwise
    inadmissible evidence.
    In United States v. Palacious, 
    677 F.3d 234
    (4th Cir. 2012), the Fourth Circuit
    looked at the defendant’s confrontation objection to a gang expert’s testimony
    that relied in part on interviews with unnamed gang members and victims of gang
    violence. Referring to Federal Rules of Evidence 703 and 705 (allowing expert
    witness to base an opinion on data that includes inadmissible evidence), and
    assuming the expert relied on testimonial statements (which was not clear), the
    court concluded that the “touchstone” for determining whether an expert is giving
    his independent judgment or regurgitating testimonial hearsay is whether the
    expert applies his training and expertise to produce “an original product that can
    be tested through cross-examination.” See 
    id. at 243
    (quoting United States v. Johnson,
    
    587 F.3d 625
    , 635 (4th Cir. 2009)). After identifying the expert’s training and
    4
    Appellant’s Brief at 23.
    25
    experience included “extensive gang culture training” and hundreds to thousands
    of interviews with gang members, his independent opinion about the “gang’s
    history, operation, structure, practices, and symbols” was not a Crawford violation
    even if based partly on testimonial hearsay. See 
    id. at 244.
    Likewise, here, and utilizing similarly worded Texas Rules of Evidence 703
    and 705, Sergeant Wood testified he had spent at least 5 years in a law
    enforcement gang unit with specialized training that included hours of gang
    conferences and training on recognizing gang colors, the language they use, the
    culture of gangs, and how to identify gang graffiti. (RRV at 24). See TEX. R. EVID.
    703, 705. He had investigated “very many” crimes involving gangs. (RRV at 25).
    He further testified he interacts with gang members on a daily basis compiling
    information on the gang:
    For example, the Forum Park Crip area, the type of
    activity that was going on, being conducted criminally
    by the gang members over there, who was being arrested
    in the past, who had been charged, were they gang
    members, compiling all that information and going over
    there and having either consensual stops and
    conversations with people who are gang members, or
    conducting criminal investigations where we would
    contact suspects, check their gang affiliation, did they
    have tattoos, did they self-admit to being a gang member,
    were they wearing that type of clothing, were they
    associating with other gang members, and through that,
    documenting them as a criminal street gang members.
    26
    (RRV at 25). He placed this knowledge and opinions in State’s Exhibit 60. State’s
    Exhibit 60 did not violate the Confrontation Clause because it was based upon his
    training and experience with criminal street gangs, and specifically with Forum
    Park Crips, and produced an original product that could be, and was tested by
    cross-examination. 5 (RRV at 35-39). See 
    Palacious, 677 F.3d at 234
    . The trial court
    did not err in admitting State’s Exhibit 60.
    Appellant’s second issue presented on appeal should be overruled.
    ♦
    5
    Furthermore, charts, graphs, maps, diagrams, or other exhibits prepared for courtroom
    use which clarify or illustrate some fact in issue may, in the trial court’s discretion, be
    admitted into evidence. Compare Marras v. State, 
    741 S.W.2d 395
    , 404–05 (Tex. Crim. App.
    1987), overruled on other grounds, 
    851 S.W.2d 853
    , 860 (1993) (videotaped re-enactment of
    the defendant's flight from the crime scene was admissible); Uniroyal Goodrich Tire Co. v.
    Martinez, 
    928 S.W.2d 64
    , 74 (Tex. App. —San Antonio 1995), aff'd, 
    977 S.W.2d 328
    (Tex.
    1998) (trial court did not abuse its discretion in admitting time line prepared by witness
    to illustrate the sequence of events to which he had already testified); Mayfield v. State, 
    848 S.W.2d 816
    , 819 (Tex. App. —Corpus Christi 1993, pet. ref’d) (diagram of a school
    prepared by the prosecutor and authenticated by the witness was admissible in
    evidence). Here, the court specifically concluded that State’s Exhibit 60 would aid in
    understanding Sergeant Wood’s testimony.
    27
    CONCLUSION
    It is respectfully submitted that all things are regular and that appellant’s
    conviction should be affirmed.
    DEVON ANDERSON
    District Attorney
    Harris County, Texas
    /s/ Bridget Holloway
    BRIDGET HOLLOWAY
    Assistant District Attorney
    Harris County, Texas
    1201 Franklin, Suite 600
    Houston, Texas 77002
    713.755.5826
    Texas Bar No. 24025227
    holloway_bridget@dao.hctx.net
    28
    CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE
    This is to certify: (a) that the word count of the computer program used to
    prepare this document reports that there are 5620 words in the document; and (b)
    that the undersigned attorney requested that a copy of this document be served to
    appellant’s attorneys via TexFile at the following emails on June 18, 2015:
    Mark C. Kratovil
    Assistant Public Defender
    Email: mark.kratovil@pdo.hctx.net
    /s/ Bridget Holloway
    BRIDGET HOLLOWAY
    Assistant District Attorney
    Harris County, Texas
    1201 Franklin, Suite 600
    Houston, Texas 77002
    713.755.5826
    Texas Bar No. 24025227
    holloway_bridget@dao.hctx.net
    29