Traci Sheppard Schroeder v. State ( 2015 )

NUMBERS
13-13-00379-CR
13-13-00380-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TRACI SHEPPARD SCHROEDER
A/K/A TRACI LEE SCHROEDER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court No. 3
of Dallas County, Texas.
MEMORANDUM OPINION
Before Justice Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza
A Dallas County jury convicted appellant, Traci Sheppard Schroeder a/k/a Traci
Lee Schroeder, of one count of fraudulent use or possession of identifying information,1
see TEX. PENAL CODE ANN. § 32.51(b) (West, Westlaw through 2013 3d C.S.), and one
count of possession of methamphetamine.2 See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(6), 481.115(a) (West, Westlaw through 2013 3d C.S.). After finding two
enhancement paragraphs true, the jury sentenced Schroeder to prison terms of nine and
one-half years and four years for the respective offenses, and the sentences were
ordered to run concurrently.
Schroeder raises twelve issues on appeal. She contends that: (1) the evidence
was insufficient to show that she fraudulently used or possessed identifying information;
(2) the trial court erred by refusing her request to include a definition of “harm” in the jury
charge; (3) the trial court erred by admitting evidence obtained from underneath a mobile
phone battery; (4) the trial court erred by requiring her to wear shackles during trial; (5)
the trial court erred by admitting prior judgments of conviction in the fraudulent
identification case; (6) the trial court erred by admitting prior judgments of conviction in
the methamphetamine possession case; (7) there was insufficient evidence to support
enhancement paragraphs in the fraudulent identification case; and (8) there was
insufficient evidence to support enhancement paragraphs in the methamphetamine
possession case. Schroeder further raises four issues seeking to correct clerical errors
in the judgments.
Because the enhancement paragraphs were supported by insufficient evidence,
1 Appellate cause number 13-13-00379-CR.
2 Appellate cause number 13-13-00380-CR.
2
we will reverse the punishments assessed, affirm the remainder of the judgments as
modified, and remand for further proceedings.3
I. BACKGROUND
Indictments filed on September 20, 2012 alleged that Schroeder: (1) “with intent
to harm and defraud another, and without the effective consent of” the complainant
Elizabeth McCullough, “use[d] identifying information of said complainant, to-wit: NAME,
ADDRESS AND DATE OF BIRTH”; and (2) intentionally and knowingly possessed less
than one gram of methamphetamine.4 The fraudulent identification indictment also
alleged that Schroeder had been previously convicted of felony criminal mischief in 1990
and felony credit card abuse in 1994. The State later filed notice of intent to use those
prior convictions in the methamphetamine possession case as well.
At trial, Officer Eric LaCross of the Irving Police Department testified that, at around
9:00 p.m. on September 10, 2012, he attempted to pull over a vehicle that was being
operated without headlights. When the vehicle stopped at a red light, “the front passenger
got out of the vehicle and contacted” the officer. LaCross testified that the passenger told
him “something had caught fire in the car, so they didn’t have headlights, and they had
called dispatch and somebody in dispatch had told them to drive on the highway without
lights.” He instructed the driver to pull into an adjacent parking lot when the light turned
green. The driver did so and identified himself as Michael Avina. LaCross asked Avina
for his driver’s license and explained to him that he cannot drive at night without
3 This appeal was transferred from the Fifth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
4 The fraudulent identification indictment and judgment of conviction refer to the defendant therein
as “TRACI SHEPPARD SCHROEDER.” The methamphetamine possession indictment and judgment of
conviction refer to the defendant therein as “TRACI LEE SCHROEDER.”
3
headlights. LaCross then asked the passenger for her name, and she replied that her
name is Elizabeth McCullough. The passenger further stated that her date of birth is
January 16, 1963 and she works at Brighton-Best, a distributor of industrial products. She
also gave her address and phone number. She was not able to produce a driver’s license.
LaCross went back to his patrol unit and checked for outstanding warrants using
the names and information provided by Avina and the passenger.5 The search revealed
that Avina and McCullough both had previous arrests. Afterward, he let the driver and
passenger go without ticketing them or arresting them.6 However, he stated that the
passenger’s behavior was suspicious, in part because she “told [him] several different
date[s] of birth[] at first” and “didn’t have any kind of ID.”
According to LaCross, his colleague Detective James McLelland later informed
him that he “had obtained a warrant related to someone giving out Elizabeth McCullough’s
identifying information.” McLelland told LaCross that Schroeder was the person using
that information. LaCross identified Schroeder in the courtroom.
On September 13, 2012, LaCross went with another officer to the address provided
by Avina in order to execute the warrant and arrest Schroeder. However, there was a
lock-out device attached to the knob of the apartment’s front door. A security guard at
the apartment complex described Avina’s vehicle, and LaCross waited for Avina to return.
After about an hour, he saw a vehicle that matched the description. LaCross followed the
vehicle and stopped it when “[t]he driver failed to use his turn signal when he turned into
5 He also “sent an image to dispatch . . . asking if anybody had told somebody that called in to drive
on the highway without their lights on.” As the officer expected, “nobody responded that they told them that
it was okay to drive down the highway without headlights.”
6 LaCross initially agreed on cross-examination that Avina and his passenger “w[ere] not being
detained” at that time. However, he later stated during re-direct examination that they were being lawfully
detained pursuant to a lawful traffic stop, and that they were not free to leave.
4
the apartments.” Avina was driving. LaCross first made contact with Avina and then
made contact with Schroeder, the passenger. He arrested Schroeder pursuant to the
warrant that had been issued.
LaCross testified that Schroeder “carried [a purse] with her out of the car when she
first stepped out,” and he “asked her to put it back in the seat so [he] could handcuff her
safely.” He then handcuffed Schroeder and placed her in the back of his patrol unit. He
then went back to Avina and asked for consent to search Avina’s car. Avina granted
consent to search the car, but LaCross did not find anything of interest. LaCross did not
search the purse at that time because “[Avina] could not give consent for me to search
her stuff.” At some point, Schroeder asked Avina if Avina would take her purse. LaCross
did not allow Avina to take the purse, however, because “[i]t’s possible that . . . she had
other identifying information in her purse or something related to that offense.” Schroeder
then asked LaCross if she could give Avina her car keys; LaCross reached into the purse,
took the car keys, and gave them to Avina. LaCross stated that no one else had access
to the purse from the time he pulled the car over to the time he “took the car and put in
the purse to take with [him] to the jail.”
LaCross testified that, after he brought Schroeder to the Irving City Jail, he
searched her purse incident to the arrest. When asked why he searched the purse at the
jail instead of at the scene, LaCross testified: “I would rather search it in a well-lit area
that has a table that I can set things down on as opposed to inside of a vehicle or on the
hood of a squad car.” He stated:
I looked for further evidence of the crime, the—especially identifying
information. She had two cellphones in her purse, which I thought was a
little bit strange. One didn’t have a back or battery in it, and the other one
had a battery and a back. I took off the back of the cellphone, and behind
5
the battery was a small piece of paper with a small amount of
methamphetamines in it.[7]
LaCross stated that he searched under the battery because “anything that goes into the
jail, I’m liable for. So if there’s, I don’t know, a razor blade or some other drugs or
something, anything that gets into the jail, it’s on me that it got to that.” He said it was not
uncommon to “find drugs hidden in this manner.”
On cross-examination, LaCross could not recall whether Schroeder had in fact
“never changed that birth date that she gave [him]” initially. He conceded that he did not
personally check whether Schroeder lived at the address she provided to him on
September 10. He denied knowing that Avina had been arrested at his apartment
between September 10 and September 13. LaCross stated that his intention on
September 13 was to stop Avina’s car to see if Schroeder was inside; however, he denied
that he was “going to stop the vehicle no matter what,” even if there was no traffic
infraction. He conceded that Avina was alone in his car with Schroeder’s purse for about
two minutes, but that “I believe my backup officer was there as well, and he had an eye
on him.” He later conceded that he is not certain that the other officer was observing
Avina during that time. LaCross stated that he does not have any evidence that
Schroeder knew that the drugs were inside the cell phone.
LaCross testified that both the September 10 and September 13 interactions were
captured on his patrol unit’s video recording system. The video recordings were played
for the jury.
McLelland testified that he “began receiving a series of phone calls” in August or
7 LaCross later testified, when asked whether he recalled the weight of the drugs that he seized:
“That’s a usable amount, so it would be 0.1 grams.”
6
September 2012 from Tonya Strickland, who “identified herself as a relative of a warrant
officer of ours who was calling on behalf of a friend.” McLelland agreed that, based on
the calls, his “attention [was] drawn to a potential traffic stop involving either Elizabeth
McCullough or [Schroeder].” He searched for Schroeder’s name in his computer system
and “found out that [he] had been assigned a case involving a traffic stop that occurred
earlier that morning.” According to McLelland, “the report was . . . written up with
allegations of identity theft for things that happened during the stop.” The case was
assigned to him because he handles fraud and financial crimes. McLelland reviewed the
September 10 video from LaCross’s patrol unit and compared driver’s license images of
McCullough and Schroeder to the female that appeared in the video. McLelland stated
that the female in the video, despite identifying herself as McCullough, is “clearly”
Schroeder.
McLelland made contact with the actual Elizabeth McCullough. Based on his
conversation with her, he believed that Schroeder had committed the offense of
fraudulent use or possession of identifying information, and he obtained a warrant for
Schroeder’s arrest. He informed LaCross that he had obtained a warrant.
Later, McLelland sought to interview Schroeder in jail. After being administered
Miranda warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), Schroeder agreed to
speak with him. According to McLelland, Schroeder stated that she used to live with
McCullough, and she admitted that she provided McCullough’s name and date of birth to
LaCross during the September 10 traffic stop. Schroeder stated that McCullough had
given her consent to use McCullough’s identifying information in order to register a car.
McLelland did not ask Schroeder whether McCullough gave her permission to give
7
McCullough’s identifying information to police if she were in a traffic stop.
On cross-examination, McLelland stated that McCullough initially did not want to
file a complaint because “she was concerned for her safety about doing so.” He later
clarified that McCullough was afraid of Schroeder. He agreed that, according to his police
report, McCullough had an appointment to meet with him at the police station the next
day, but she did not appear or call to cancel. McLelland denied that “there is no intent to
harm or defraud anybody in this case”; he explained that Schroeder’s “intentions to harm
or defraud were directed toward Officer LaCross at the time of his stop.” When defense
counsel asked how McCullough had been harmed or defrauded in this case, McLelland
replied: “Her name was listed in the police report when it should not have been because
of Ms. Schroeder’s identifying herself in that capacity.”
McCullough testified that her date of birth is January 16, 1963 and that she works
at Brighton-Best. She stated that she lives at the exact address given by Schroeder
during the September 10 traffic stop. She has known Schroeder for thirty-five years, and
she was in an “[o]ff and on” relationship with Schroeder from 2007 to 2012. When
Schroeder’s car became impounded in March 2012, McCullough agreed to help
Schroeder by obtaining insurance for her using McCullough’s information, so that
Schroeder’s car would be released from impound. McCullough denied ever giving
permission to Schroeder to use her information to register any car. She agreed that
Tonya Strickland, her friend “who had a brother who is a police officer,” called Irving police
to ask “what I could do to get the car out of my name.”
In August 2012, McCullough’s driver’s license went missing. The next month, she
was contacted by police asking if she was part of a routine traffic stop on September 10.
8
She replied that she was not. McCullough stated that, initially, she was hesitant to
participate in the investigation “[b]ecause we’ve been good friends for so long. I didn’t
want to bring any harm her way, but I had to protect myself.” When asked whether she
was afraid of Schroeder, McCullough replied: “If she’s capable of doing that, I didn’t know
what else she would be capable of doing.” McCullough denied ever giving Schroeder her
driver’s license, or ever giving Schroeder permission to use her name, date of birth, or
address for any purpose. She said it is “[p]robably safe to say” that she and Schroeder
are no longer friends.
Schroeder was convicted as charged. At the punishment phase, the trial court
admitted into evidence, over defense counsel’s objections, two judgments reflecting prior
convictions. No witnesses testified at the punishment phase. The jury found the two
enhancement paragraphs true and sentenced Schroeder as set forth above. This appeal
followed.8
II. DISCUSSION
A. Evidentiary Sufficiency
We first address Schroeder’s evidentiary sufficiency issues. See, e.g., Lucas v.
State, 245 S.W.3d 611, 612 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (noting that
issues calling for rendition of judgment are considered before issues calling for remand).
In reviewing the sufficiency of evidence supporting a conviction, we consider the
evidence in the light most favorable to the verdict to determine whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
8 The State submitted its appellate brief to this Court on July 22, 2014, some 29 days after it was
due pursuant to an extension of time previously granted by this Court on May 23, 2014. See TEX. R. APP.
P. 38.6. The State also moved for a second extension of time to file the brief. We hereby grant the motion
and accept the brief.
9
Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson, 443 U.S. at 318–19). When faced with conflicting evidence, we
presume that the trier of fact resolved any such conflict in favor of the prosecution, and
we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id. This principle applies to necessary elements of the
offense as well as to findings necessary to support enhanced punishment. Young v.
State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000).
1. Fraudulent Use of Identifying Information
By her first issue, Schroeder argues that there was insufficient evidence to support
the jury’s finding that she fraudulently possessed or used identifying information. A
hypothetically correct jury charge would state that Schroeder is guilty of the offense as
charged in the indictment if she: (1) with intent to harm and defraud another, (2) used the
name, date of birth and address of Elizabeth McCullough, (3) without McCullough’s
10
effective consent. See TEX. PENAL CODE ANN. § 32.51(b); see id. § 32.51(a)(1)(A)
(defining “identifying information” as including a person’s name and date of birth).
Schroeder argues specifically that the State failed to prove beyond a reasonable
doubt that she “intended to harm or defraud a person as charged in the indictment.” See
id. § 32.51(b). She argues that “[t]he State’s theory of the case centered on its position
that [she] harmed or defrauded Officer LaCross” but that “the State offered no specific
evidence regarding what harm or fraud [she] intended by giving McCullough’s name to
LaCross during the routine traffic stop.” She further argues that there was no evidence
that she intended to harm or defraud McCullough, noting that, in response to being asked
whether she thought Schroeder intended to harm her, McCullough replied: “I don’t know
what her purpose was.”
We disagree that the evidence was insufficient in this regard.9 Intent may generally
be inferred from circumstantial evidence such as acts, words, and the conduct of the
appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). “Intent to defraud
has been defined as the intent to cause another to rely upon the falsity of a representation,
such that the other person is induced to act or to refrain from acting.” Martinez v. State,
6 S.W.3d 674, 678 (Tex. App.—Corpus Christi 1999, no pet.) (finding sufficient evidence
to support conviction for tampering with governmental records) (citing 41 TEX. JUR. 3D
Fraud and Deceit § 9 (1998)); see Garcia v. State, 630 S.W.2d 303, 305 (Tex. App.—
9 There appears to have been no evidence adduced at trial as to Schroeder’s actual date of birth
or address. Nevertheless, Schroeder does not argue on appeal that the evidence was insufficient to
establish that she used McCullough’s date of birth or address, as alleged in the indictment. Even if
Schroeder did make this argument, it would not be meritorious because the evidence was clearly sufficient
to establish that she used McCullough’s name. See Anderson v. State, 717 S.W.2d 622, 631 (Tex. Crim.
App. 1986) (noting that it is proper for an indictment to allege various manners and means of committing
an offense in the conjunctive, and for those different methods of committing the offense to be charged to
the jury in the disjunctive); Negrini v. State, 853 S.W.2d 128, 134 (Tex. App.—Corpus Christi 1993, no pet.)
(same).
11
Houston [1st Dist.] 1981, no pet.) (noting in a forgery case that the use of deception, such
as giving false information, is evidence of intent to defraud and harm). “Harm” is defined
in the penal code as “anything reasonably regarded as loss, disadvantage, or injury,
including harm to another person in whose welfare the person affected is interested.”
TEX. PENAL CODE ANN. § 1.07(a)(25) (West, Westlaw through 2013 3d C.S.). Here,
LaCross testified that, when he stopped Avina’s car on September 10, 2012 for driving at
night without headlights, Schroeder told him that her name was Elizabeth McCullough
and that her date of birth was January 16, 1963. The actual Elizabeth McCullough
testified that she was not involved in a traffic stop on that date and had not given
Schroeder consent to use her identifying information. McLelland testified that the female
appearing in the September 10 traffic stop video “clearly” matched the picture in
Schroeder’s driver’s license record, and that Schroeder admitted to using McCullough’s
identifying information when he interviewed her in jail. It is reasonable to conclude from
this evidence that Schroeder identified herself as McCullough with, at the very least, the
intent to cause LaCross “to rely upon the falsity of a representation such that [he] is
induced to act or to refrain from acting.” See Martinez, 6 S.W.3d at 678. In particular, a
juror could have reasonably inferred from this evidence that Schroeder identified herself
as McCullough in order to induce LaCross to refrain from further investigating Schroeder
or from citing her for an offense.
Schroeder additionally contends that McCullough was not harmed because
“[t]here is no evidence in the record of any citation, arrest, or warrant in McCullough’s
name as a result of LaCross’s traffic stop.” That may be true, but actual harm upon the
person whose identifying information was fraudulently used is not an element of the
12
offense. See TEX. PENAL CODE ANN. § 32.51(b). In any event, there is evidence that
McCullough was actually harmed. When McCullough was asked whether she had been
“harmed in any financial way or lost any money over this deal,” she replied: “Yes, I
have. . . . I have a bank account that is now closed. I have child support money that has
been missing.” When McLelland was asked whether McCullough had been harmed or
defrauded, he stated that, because of Schroeder’s fraudulent identification as
McCullough, “[McCullough’s] name was listed in the police report when it should not have
been.” The fact that McCullough was never arrested or formally charged with a crime as
a result of Schroeder’s actions does not mean that McCulllough was not harmed, and it
does not mean Schroeder could not have harbored an intent to harm or defraud another.
Schroeder finally argues by this issue that “[her] conduct does not constitute the
type of conduct that Section 32.51 prohibits” because “[c]ase law clearly reflects that the
subject and purpose of Section 32.51 is to prevent identity theft while the subject of
Section 38.02 is to ensure police officers receive accurate information.” See, e.g., Jones
v. State, 396 S.W.3d 558, 563 (Tex. Crim. App. 2013). We disagree. As noted, the
evidence adduced at trial was sufficient to establish the essential elements of the offense
of fraudulent use or possession of identifying information. On the other hand, the offense
of failure to identify, defined in penal code section 38.02, would not have been supported
because there was no evidence that Schroeder was under arrest at the time she provided
the fraudulent identification. See TEX. PENAL CODE ANN. § 38.02(a) (West, Westlaw
through 2013 3d C.S.). It is true that the purpose of section 38.02 is to prevent people
from providing false information to police, see Jones, 396 S.W.3d at 562, and that
Schroeder is accused of doing exactly that; but the purpose of section 32.51 is to ensure
13
that people do not have their identities stolen, see id., and Schroeder is accused of doing
exactly that as well. Moreover, the statute under which she was charged and convicted
states: “If conduct that constitutes an offense under this section also constitutes an
offense under any other law, the actor may be prosecuted under this section, the other
law, or both.” TEX. PENAL CODE ANN. § 38.51(e); see Jones, 396 S.W.3d at 562. In light
of these considerations, we find no reason why section 32.51 would not apply to
Schroeder’s actions as alleged in the indictment and as proven beyond a reasonable
doubt at trial.
Schroeder’s first issue is overruled.
2. Enhancement Paragraphs
By her seventh and eighth issues, Schroeder contends that the evidence was
insufficient to support the jury’s findings as to the two enhancement paragraphs in both
cause numbers.10 A hypothetically correct jury charge, consistent with the indictment,
would state that the enhancement paragraphs are true if: (1) prior to the commission of
the charged offenses, Schroeder was finally convicted of felony criminal mischief in
Tarrant County Criminal District Court Number 1, cause number 0514862D; and (2) prior
to the commission of the charged offenses and prior to the commission of the
aforementioned criminal mischief offense, Schroeder was finally convicted of felony credit
card abuse in the 204th District Court of Dallas County, cause number F-8772294. See
TEX. PENAL CODE ANN. § 12.425(a) (West, Westlaw through 2013 3d C.S.)11; Young, 14
10 The verdict form in each punishment charge gave the jury only two options: “Both paragraphs
true” and “Both paragraphs not true.” The jury found both paragraphs true in both cases.
11 Penal code section 12.425, regarding penalties for repeat and habitual felony offenders in state-
jail felony trials, states:
(a) If it is shown on the trial of a state jail felony punishable under Section 12.35(a)
that the defendant has previously been finally convicted of two state jail felonies
14
S.W.3d at 750; see also Derichsweiler v. State, 359 S.W.3d 342, 349 (Tex. App.—Fort
Worth 2012, pet. ref’d) (“Generally, the State must prove enhancement allegations as
alleged in the indictment.”).
To establish that Schroeder was convicted of prior offenses, the State had to prove
beyond a reasonable doubt that (1) the prior convictions exist, and (2) Schroeder was the
defendant in those prior convictions. See Flowers v. State, 220 S.W.3d 919, 921 (Tex.
Crim. App. 2007). No specific document or mode of proof is required to prove these two
elements. Id.
While evidence of a certified copy of a final judgment and sentence may be
a preferred and convenient means, the State may prove both of these
elements in a number of different ways, including: (1) the defendant’s
admission or stipulation, (2) testimony by a person who was present when
the person was convicted of the specified crime and can identify the
defendant as that person, or (3) documentary proof (such as a judgment)
that contains sufficient information to establish both the existence of a prior
conviction and the defendant’s identity as the person convicted.
Id. at 921–22 (footnotes omitted).
[O]rdinarily the proof that is adduced to establish that the defendant on trial
is one and the same person that is named in an alleged prior criminal
conviction or convictions closely resembles a jigsaw puzzle. The pieces
standing alone usually have little meaning. However, when the pieces are
punishable under Section 12.35(a), on conviction the defendant shall be punished
for a felony of the third degree.
(b) If it is shown on the trial of a state jail felony punishable under Section 12.35(a)
that the defendant has previously been finally convicted of two felonies other than
a state jail felony punishable under Section 12.35(a), and the second previous
felony conviction is for an offense that occurred subsequent to the first previous
conviction having become final, on conviction the defendant shall be punished for
a felony of the second degree.
(c) If it is shown on the trial of a state jail felony for which punishment may be
enhanced under Section 12.35(c) that the defendant has previously been finally
convicted of a felony other than a state jail felony punishable under Section
12.35(a), on conviction the defendant shall be punished for a felony of the second
degree.
TEX. PENAL CODE ANN. § 12.425 (West, Westlaw through 2013 3d C.S.) (emphasis added). The indictments
and the jury charges allege that Schroeder was twice previously convicted of felonies, but they do not state
whether or not those felonies were state-jail felonies.
15
fitted together, they usually form the picture of the person who committed
that alleged prior conviction or convictions.
Human v. State, 749 S.W.2d 832, 835–36 (Tex. Crim. App. 1988) (op. on reh’g).
State’s Exhibits 4 and 5, which were admitted at the punishment phase over
defense counsel’s objections, constitute the only evidence of prior convictions in the
instant case.12 Exhibit 4 contains certified copies of a docket sheet, indictment, and
judgment indicating that “Traci Sheppard Schroeder” was convicted on April 5, 1994 of
third-degree felony criminal mischief in Tarrant County Criminal District Court Number
One, cause number 0514861D. The docket sheet is partially illegible but “/03/62” appears
next to the defendant’s name. Exhibit 5 appears to contain six separate documents in
reverse chronological order. The first document is a judgment, dated July 27, 1990,
convicting a defendant of third-degree felony credit card abuse and imposing a two-year
prison term. The copy of the judgment that appears in the record before this Court does
not contain the defendant’s name. The second document is a complaint, dated July 12,
1990, alleging that “Traci Leigh Schroeder” was convicted of felony credit card abuse in
1987 and that she violated conditions of her probation. The third document is an undated
judgment finding “Traci Sheppard Schroeder” guilty of felony credit card abuse,
sentencing her to five years’ imprisonment, suspending the prison sentence, and placing
her on probation for five years. The fourth document is a complaint, dated August 11,
1988, alleging that “Traci Leigh Schroeder” had been previously convicted of felony credit
12 Schroeder contends by her fifth and sixth issues that Exhibits 4 and 5 were inadmissible.
However, she does not support these issues with citations to authority or record references; accordingly,
they are waived. See TEX. R. APP. P. 38.1(i). We note that certified copies of a judgment are self-
authenticating under the rules of evidence and are generally admissible at the punishment phase to
establish prior convictions. See TEX. R. EVID. 902(4); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App.
1986) (noting that certified copies of a judgment and sentence, “while admissible, are not normally sufficient
standing alone to prove” prior convictions).
16
card abuse and that she violated conditions of her probation. The fifth document is a
signed “Judicial Confession” admitting to the felony credit card abuse allegations. The
sixth document is an indictment alleging that “Traci Sheppard Schroeder” committed
felony credit card abuse on or about April 4, 1987. The two complaints for probation
violations each contained signatures appearing to be that of Schroeder, acknowledging
receipt of the documents.13
In support of her issues, Schroeder cites Beck v. State, in which the Texas Court
of Criminal Appeals stated that certified copies of a judgment and sentence “are not
normally sufficient standing alone to prove” prior convictions, “even if the name on the
judgment and sentence and in the pen packet is the same as the defendant in trial.” 719
S.W.2d 205, 210 (Tex. Crim. App. 1986) (citing Daniel v. State, 585 S.W.2d 688 (Tex.
Crim. App. 1979); Cain v. State, 468 S.W.2d 856 (Tex. Crim. App. 1971); Elizalde v. State,
507 S.W.2d 749, 752 (Tex. Crim. App. 1970); Vessels v. State, 432 S.W.2d 108 (Tex.
Crim. App. 1968); Franklin v. State, 227 S.W.2d 814 (Tex. Crim. App. 1950); Phariss v.
State, 194 S.W.2d 1007, 1007 (Tex. Crim. App. 1946)); see Prihoda v. State, 352 S.W.3d
796, 808–10 (Tex. App.—San Antonio 2011, pet. ref’d) (finding insufficient evidence to
support enhancement where only evidence linking appellant to prior conviction was (1)
his full name on the prior conviction judgment, (2) his signature on that judgment, and (3)
a police officer’s vague response to a single question about a prior DWI); see also
13 Exhibit 5 does not contain a certification page or any other indication that the documents therein
are certified copies of the originals. However, the exhibit does contain a document prepared by a
representative of the Dallas County Criminal District Attorney’s office, dated April 9, 2013, requesting
certified copies of “Court Dispositions and Probable Cause Affidavits” in district court cause number F87-
72294. Additionally, as Schroeder concedes on appeal, the prosecutor “specifically referred to the
certification during publication of the exhibit to the jury” and “defense counsel did not make any different
representation or indicate that it was not certified.” Schroeder’s appellate counsel states that he therefore
“has no reason to believe that this exhibit was not certified.” Accordingly, we assume for purposes of this
opinion that the documents contained in Exhibit 5 are certified copies.
17
Flowers, 220 S.W.3d at 925 (Johnson, J., concurring) (noting that “[c]learly, we must not
depend only on a name or even a name and a birth date” in linking a defendant to prior
convictions)14; Demers v. State, No. 05-11-01704-CR, 2013 WL 323446, at *3 (Tex.
App.—Dallas Jan. 29, 2013, no pet.) (not designated for publication) (“[E]ven if the name
on the judgment is the same as that of the accused at trial, the State must present
independent evidence that the accused is the same person previously convicted.”);
Hensley v. State, No. 02-13-00190-CR, 2014 WL 1999307, at *4–5 (Tex. App.—Fort
Worth May 15, 2014, no pet.) (mem. op. per curiam, not designated for publication)
(finding that fingerprint expert’s testimony regarding documents not admitted into
evidence was insufficient to link appellant to prior convictions). Instead, “[i]t is incumbent
on the State to go forward and show by independent evidence that the defendant is the
person so previously convicted.” Beck, 719 S.W.2d at 210.
The State argues that, based on the “puzzle pieces” contained in Exhibits 4 and 5,
“the jury could have rationally determined that it was unlikely that someone other than the
Appellant, with the same name, date of birth, race and gender, was responsible for the
offenses.” See Flowers, 220 S.W.3d at 923 (“The trier of fact fits the pieces of the jigsaw
puzzle together and weighs the credibility of each piece.”); Benton v. State, 336 S.W.3d
14 In her concurring opinion in Flowers v. State, Judge Johnson, joined by Judge Price, stated:
Assuring that a sufficient connection exists requires at least two things: 1) enough
information to establish that the conviction can be connected to its proper owner; and 2)
the information is sufficiently corroborated. More information makes the connection more
reliable. Clearly, we must not depend only on a name or even a name and a birth date.
An inexhaustive list of factors that might be considered includes: full name, date of birth,
Social Security number, what the prior offense was, the place and date of the prior offense,
the date of conviction, testimony about the prior conviction from a corrections, parole, or
probation officer, or the prosecutor of the prior conviction. However the information is
produced, it must sufficiently connect the defendant to the prior offense.
220 S.W.3d 919, 925 (Tex. Crim. App. 2007) (Johnson, J., concurring).
18
355, 359–60 (Tex. App.—Texarkana 2011, pet. ref’d) (noting that “[g]enerally, a name
alone is insufficient to connect a defendant to a prior judgment” but that “the name alone
is not the sole evidence connecting Benton to the prior convictions” and, in any event, “it
is quite unlikely that another by the name of Courtney Antoine Benton was convicted in
Harris County, Texas, within the time frames listed in those prior convictions”).
We find that the evidence was insufficient to link Schroeder to the prior convictions.
We note that it is not enough for the State to prove that it is “unlikely” that someone other
than Schroeder was convicted of the offenses as evidenced by the exhibits; instead, the
State must establish beyond a reasonable doubt that Schroeder was convicted of those
offenses. See Flowers, 220 S.W.3d at 921. Here, none of the documents in either exhibit
contain any identifying characteristics that match those of Schroeder other than her first
and last names. The judgment of conviction in Exhibit 5 does not even state Schroeder’s
name. The State contends that Exhibit 4 established that the person convicted of criminal
mischief also shared Schroeder’s date of birth, but we do not find a full date of birth
anywhere in the exhibit. More importantly, there was no evidence adduced at either the
guilt-innocence phase or the punishment phase as to Schroeder’s actual date of birth.15
Therefore, even if Exhibit 4 clearly showed the date of birth of the person convicted of
criminal mischief—including month, day, and year—that information could not link
Schroeder to the offense because the jury could not have known Schroeder’s actual date
of birth.16 Similarly, though the complaints and judicial confession in Exhibit 5 contain the
15 The State did not seek to re-admit evidence from the guilt-innocence phase at the punishment
phase.
16 The request for certified copies referenced supra note 13, which was prepared by the prosecuting
attorney’s office, lists the convicted person’s name as “Traci Sheppard Schroeder,” her date of birth as
“10/03/1962,” her gender as “female,” and her race as “white.” However, as noted, there was no evidence
before the jury regarding Schroeder’s actual date of birth. And, to whatever extent the request may be
19
signature of the person convicted of credit card fraud—and even though the signatures
appear to state “Traci Schroeder”—there was no evidence adduced at trial as to
Schroeder’s actual signature. The signatures therefore merely show that someone
named “Traci Schroeder” was charged with credit card fraud; they do not link Schroeder
to the offense beyond the fact that she shares the same first and last names as that of
the charged person.
Because the only “puzzle piece” linking Schroeder to the convictions is her name,
the evidence was insufficient to support a finding that both enhancement paragraphs were
true. See Beck, 719 S.W.2d at 210; Prihoda, 352 S.W.3d at 808–10.17 We sustain
Schroeder’s seventh and eighth issues and reverse those portions of the judgments
finding the enhancement paragraphs true.
B. Shackling During Trial
Schroeder argues by her fourth issue that the trial court erred by “requir[ing] [her]
to wear shackles during trial.”
The appearance of a defendant in shackles before a jury during a trial can violate
the defendant’s Fifth and Fourteenth Amendment rights to due process. Deck v. Missouri,
544 U.S. 622, 629–34 (2005) (citing U.S. CONST. amends. V, XIV). Visible shackling
considered “evidence” of the convicted person’s gender and race, we do not believe that such evidence
establishes any substantial link between the convicted person and Schroeder that was not already
established by the fact that the two share first and last names, which, as noted, is insufficient by itself to
support enhancement. See, e.g., Beck, 719 S.W.2d at 210.
17 Flowers and Benton are distinguishable because, in those cases, there was far more than just a
name to link the appellant with the prior convictions. See Flowers, 220 S.W.3d at 925 (evidence included
a certified copy of a printout of a conviction which “set out the date of birth, address, social security number,
and other personal descriptors” of the convicted person; and appellant’s driver’s license record, which
contained a name, date of birth, address, and personal descriptors matching those contained in the
conviction printout as well as a picture “which the trial court could use to compare to the person standing
before him”); Benton v. State, 336 S.W.3d 355, 359–60 (Tex. App.—Texarkana 2011, pet. ref‘d) (evidence
linking appellant to conviction included his name, date of birth, his signature, and the identity of appellant’s
mother, all of which appeared on the prior felony conviction and matched evidence already before the jury).
20
“undermines the presumption of innocence and related fairness of the factfinding
process,” “can interfere with the accused’s ability to communicate with his lawyer” and
“participate in his own defense,” and “affronts the dignity and decorum of judicial
proceedings that the judge is seeking to uphold.” Id. at 630–31 (quotations and citations
omitted). Accordingly, a defendant has the right to appear at trial unbound by visible
shackles except “in extreme and exceptional cases, where the safe custody of the
prisoner and the peace of the tribunal imperatively demand” otherwise. Bell v. State, 415
S.W.3d 278, 281 (Tex. Crim. App. 2013) (noting that visible shackling is “only justified
when, in the trial judge’s discretion, it is necessary for a particular defendant in a particular
proceeding”); see Deck, 544 U.S. at 628 (noting that visible shackling may be justified “in
a particular instance by essential state interests such as physical security, escape
prevention, or courtroom decorum”). “[E]ven when exceptional circumstances or a
manifest need for such restraint exists, the trial judge should make all efforts to prevent
the jury from seeing the defendant in shackles.” Bell, 415 S.W.3d at 281. It is within the
discretion of the trial judge as to whether a defendant shall be tried in handcuffs or
shackles, and we review the trial court’s decision for abuse of that discretion. Long v.
State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991).
Here, prior to voir dire and outside the presence of the venire, the trial court noted
that “there’s an issue about leg irons on the defendant. The defendant—the defendant
has chosen to wear a dress for the trial and she is in leg irons.” Schroeder stated on the
record that she had no objection to wearing the leg irons in front of the jury. Subsequently,
after an off-the-record conversation regarding another case and still outside the presence
of the venire, defense counsel noted that Schroeder “has a bracelet on her arm that’s
21
apparent to the jury, which the Sheriff says they cannot remove, that indicates that she’s
in custody.” Counsel stated: “I object to the bracelet being in the view of the jury. I object
to the bracelets on her legs being in the view of the jury. I object to her wearing pants to
cover that.” The prosecutor then called a witness to testify—again, outside the presence
of the venire—regarding a motion to suppress evidence filed by Schroeder. After the
witness testified, the following exchange took place:
THE COURT: On the record. The defense has now provided the
defendant with a jacket that is long-sleeved that covers
her arms, including the band. Also, the defendant has
been provided long pants that will cover or hide her
ankle bracelet.
Is there any objection at this point from the defense?
[Defense counsel]: No, Your Honor.
The venire panel was then brought into the courtroom and the State began voir dire. No
further mention of shackles or bracelets appears in the record.
To preserve an issue for appellate review, a party must (1) present to the trial court
a timely and specific objection and (2) show that the trial court explicitly or implicitly ruled
on the objection or that it refused to rule and the party objected to the refusal. TEX. R.
APP. P. 33.1(a). Even issues that implicate a defendant’s constitutional right to a fair trial
may be waived if not preserved in this manner. See, e.g., Yazdchi v. State, 428 S.W.3d
831, 844 (Tex. Crim. App. 2014).18 Schroeder initially advised the trial court that she had
no objection to her manner of appearance before the jury, and her counsel did not object
18 Errors affecting “absolute rights” or rights that are “not forfeitable” need not be preserved by
objection at trial. See, e.g., Garza v. State, 435 S.W.3d 258, 260 (Tex. Crim. App. 2014). However,
Schroeder directs to no authority, and we find none, establishing that the right to appear unshackled at trial
is such a right. Instead, case law supports the contrary proposition. See Moughon v. State, 967 S.W.2d
900, 901 (Tex. App.—Fort Worth 1998, no pet.) (noting that “jurors seeing a defendant wearing handcuffs
does not constitute egregious error” for which no trial objection is required).
22
at that time. Although her counsel later reversed himself and objected to “the bracelet
being in the view of the jury,” the record shows that, once his concerns were addressed,
he withdrew his objection. For these reasons, Schroeder’s fourth issue has not been
preserved for our review. See TEX. R. APP. P. 33.1(a); Cedillos v. State, 250 S.W.3d 145,
150 (Tex. App.—Eastland 2008, no pet.) (concluding that appellant waived his
constitutional due process complaint regarding shackling during trial because he failed to
object on the record); see also Kelley v. State, No. 05-09-01438-CR, 2012 WL 2628074,
at *5–6 (Tex. App.—Dallas July 6, 2012, pet. ref’d) (mem. op., not designated for
publication) (same); Pereida v. State, No. 13-09-00354-CR, 2010 WL 2783743, at *6
(Tex. App.—Corpus Christi July 15, 2010, pet. ref’d) (mem. op., not designated for
publication) (same).
Even if the issue were preserved, any error would be harmless because there is
no evidence in the record that the jury was ever aware of the shackles or bracelets. See
TEX. R. APP. P. 44.2(b) (stating that any non-constitutional error “that does not affect
substantial rights must be disregarded”); Bell, 415 S.W.3d at 283 (holding that error in
ordering appellant to be shackled during trial was harmless under Rule 44.2(b) because
there was no “reasonable probability that the jury was aware of the defendant’s
shackles”); see also Canales v. State, 98 S.W.3d 690, 697–98 (Tex. Crim. App. 2003)
(holding that any error in allowing appellant to be shackled during trial would be harmless
because “[n]othing in the record indicates that the jury ever saw or heard or was otherwise
aware that appellant was wearing shackles”); Cooks v. State, 844 S.W.2d 697, 722–23
(Tex. Crim. App. 1992) (same where there was no evidence that the “shackles were
actually seen by the jury”). The record instead shows that, prior to the entrance of the
23
venire panel into the courtroom, Schroeder was provided with attire that concealed the
shackles and bracelets on her arms and legs.
We overrule Schroeder’s fourth issue.
C. Jury Charge Error
By her second issue, Schroeder contends that the trial court erred by refusing her
request to include the statutory definition of “harm” in the jury charge pertaining to the
fraudulent identification allegations because “intent to harm or defraud” is an essential
element of the offense. See TEX. PENAL CODE ANN. § 32.51(b). At the charge conference,
defense counsel requested that the jury be instructed on the definition of “harm” contained
in penal code section 1.07. See TEX. PENAL CODE ANN. § 1.07(a)(25) (“‘Harm’ means
anything reasonably regarded as loss, disadvantage, or injury, including harm to another
person in whose welfare the person affected is interested.”). The trial court denied the
request, stating that she “does not believe” that the section 1.07 definition “applies in this
case.”
The trial court is required to give the jury a written charge that, among other things,
“set[s] forth the law applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14
(West, Westlaw through 2013 3d C.S.). The “law applicable to the case” includes
“statutory definitions that affect the meaning of the elements of the offense.” Ouellette v.
State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011); see Watson v. State, 548 S.W.2d
676, 679 n.3 (Tex. Crim. App. 1977) (“The trial court should always include the statutory
definitions in its jury instructions where applicable.”). Trial courts have “broad discretion”
in submitting proper definitions and explanatory phrases to aid the jury. Nava v. State,
379 S.W.3d 396, 420 (Tex. App.—Houston [14th Dist.] 2012), aff’d, 415 S.W.3d 289 (Tex.
24
Crim. App. 2013); Deener v. State, 214 S.W.3d 522, 529 (Tex. App.—Dallas 2006, pet.
ref’d); see Shipp v. State, 331 S.W.3d 433, 444 (Tex. Crim. App. 2011) (Meyers, J.,
concurring). But a trial court has no discretion in determining what the law is or applying
the law to the facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).
We assume, for purposes of this analysis, that the trial court’s refusal to instruct
the jury on the statutory definition of “harm” was error.19 Because defense counsel
properly requested the instruction at trial, the error will be reversible only if we find that it
resulted in at least “some harm” to Schroeder’s rights. Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984) (op. on reh’g); see Dickey v. State, 22 S.W.3d 490, 492
(Tex. Crim. App. 1999). It is Schroeder’s burden to prove that she “suffered some actual,
rather than merely theoretical, harm from the error.” Dickey, 22 S.W.3d at 492.
“Nevertheless, the presence of any harm, regardless of degree, is sufficient to require a
reversal of the conviction.” Id.
Schroeder contends on appeal that she suffered harm from the exclusion of her
requested definition because “this Court cannot be certain that the jury considered the
proper standard of ‘harm’ during its deliberations”; because “[t]he intent element of the
charged offense was a highly disputed issue”; and because “[t]here is no evidence in the
record that would lead a jury to reasonably conclude that [Schroeder] possessed the
requisite intent to cause a loss, disadvantage, or injury to the officer or the complaining
witness as a result of her actions during the traffic stop.”
19 We note that the definitions provided in section 1.07 are applicable to the entire penal code. TEX.
PENAL CODE ANN. § 1.07(a) (West, Westlaw through 2013 3d C.S.).
25
We disagree. We have already concluded that the evidence was sufficient to
establish Schroeder’s culpable intent under a hypothetically correct jury charge. Further,
although the intent element was indeed hotly disputed, the exclusion of Schroeder’s
requested instruction could not have feasibly worked to her detriment because, when a
term is left undefined, the jury is assumed to have considered the “commonly understood
meaning” of the term. See Olveda v. State, 650 S.W.2d 408, 409 (Tex. Crim. App. 1983).
In Olveda, a robbery case, the Texas Court of Criminal Appeals concluded that the
omission from the jury charge of the statutory definition of “in the course of committing
theft” was harmless error. Id. at 408–09. The Court reasoned:
[W]hen the statutory definition[20] is not included in the charge, it is assumed
the jury would consider the commonly understood meaning in its
deliberations. Although error could result where the common meaning is
more expansive than the statutory definition, such is not the case with the
phrase “in the course of committing theft.” Any possible misunderstanding
of the phrase would have been more restrictive than the statutory definition,
and could only have been to appellant’s benefit. No reversible error is
shown.
Id. at 409. In Nejnaoui v. State, the Fourteenth Court of Appeals held, in an aggravated
assault case, that the reasoning in Olveda applies to the statutory definition of “conduct.”
44 S.W.3d 111, 120 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The statutory
definition of “conduct” is “an act or omission and its accompanying mental state,” id. (citing
TEX. PENAL CODE ANN. § 1.07(a)(10)); whereas the common meaning of the term is “the
act, manner, or process of carrying on . . . a mode or standard of personal behavior
esp[ecially] as based on moral principles.” Id. (citing W EBSTER’S NEW COLLEGIATE
DICTIONARY 235 (1977 ed.)). The Nejnaoui court held that “[t]he statutory definition of
20The statutory definition of “in the course of committing theft” is “conduct that occurs in an attempt
to commit, during the commission, or in immediate flight after the attempt or commission of theft.” Id.
§ 29.01(1) (West, Westlaw through 2013 3d C.S.).
26
conduct is ‘neither complex nor unusual, and the definition is much like the common
meaning of the word.’” Id. (quoting Smith v. State, 959 S.W.2d 1, 25 (Tex. App.—Waco
1997, pet. ref’d)).
We believe that the reasoning in Olveda also applies here. The common,
dictionary definition of “harm” is “physical or mental damage or injury.” Merriam-Webster
Online Dictionary, http://www.merriam-webster.com/dictionary/harm (last visited Apr. 7,
2015). As in Olveda and Nejnaoui, the common definition of the term at issue is more
restrictive than the statutory definition. See Olveda, 650 S.W.2d at 409; Nejnaoui, 44
S.W.3d at 120.21 As noted, the common definition states that “harm” must be “physical
or mental” in nature, whereas under the statutory definition “harm” may be “anything
reasonably regarded as loss, disadvantage, or injury. . . .” TEX. PENAL CODE ANN.
§ 1.07(a)(25) (emphasis added). The common, dictionary definition of “harm” is more
restrictive because it does not include injuries that are not physical or mental in nature—
such as, for example, pecuniary loss. Accordingly, to the extent the jury used the common
definition of “harm” rather than the statutory definition, that could only have redounded to
Schroeder’s benefit because it would have limited the circumstances under which the jury
could have found her guilty. See Olveda, 650 S.W.2d at 409.
We conclude that Schroeder did not meet her burden to establish that she suffered
at least some “actual harm” from the trial court’s refusal to include her requested definition
21 The Nejnaoui court did not explicitly state that the common definition of “conduct” is more
restrictive than the statutory definition. However, that conclusion is supported by that court’s analysis. In
particular, as the court noted, the statutory definition of “conduct” includes an act and its accompanying
mental state, whereas the common definition merely refers to an “act, manner or process” of behavior.
Nejnaoui v. State, 44 S.W.3d 111, 120 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
27
in the jury charge. See Dickey, 22 S.W.3d at 492; Almanza, 686 S.W.2d at 171. Her
second issue is overruled.
D. Admission of Drug Evidence
By her third issue, Schroeder contends that the trial court erred by admitting
evidence of the methamphetamine obtained from under the battery of a mobile phone
that LaCross found in her purse. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West,
Westlaw through 2013 3d C.S.) (“No evidence obtained by an officer or other person in
violation of any provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in evidence against
the accused on the trial of any criminal case.”). We review the admission of evidence
under an abuse of discretion standard. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.
Crim. App. 2007).
1. Applicable Law
The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .” U.S. CONST. amend. IV.
Warrantless searches “are per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated exceptions.” Arizona v. Gant,
556 U.S. 332, 338 (2009). Among the exceptions to the warrant requirement is a search
incident to a lawful arrest. Id.
The justification for permitting [a warrantless search incident to arrest] is (1)
the need for officers to seize weapons or other things which might be used
to assault [a]n officer or effect an escape, and (2) the need to prevent the
loss or destruction of evidence. A search is incident to arrest only if it is
“substantially contemporaneous” with the arrest and is confined to the area
within the immediate control of the arrestee. Thus, a search incident to
28
arrest cannot normally be justified if the search is remote in time or place
from the arrest or no exigency exists.
State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014) (internal quotations
omitted) (citing United States v. Chadwick, 433 U.S. 1, 15 (1977); United States v.
Robinson, 414 U.S. 218, 224–26 (1973); Vale v. Louisiana, 399 U.S. 30, 33 (1970)).
2. Suppression Hearing
At a pre-trial hearing on Schroeder’s motion to suppress the drug evidence,
LaCross testified that he stopped Avina’s car on September 13, 201222 because the driver
“[f]ailed to signal a turn.” LaCross obtained Avina’s identification and then asked
Schroeder if she had any identification. She did not. At that point, LaCross “got her out
and placed her under arrest” pursuant to the warrant that had been issued for her arrest.
LaCross asked Schroeder to put her purse back in the vehicle “[s]o that she didn’t have
anything in her hands when I placed her under arrest.” Avina then gave LaCross consent
to search the vehicle. LaCross found no evidence of criminal activity in his search of the
vehicle. He “gathered [Schroeder]’s personal property”—i.e., her purse—“and took her
to jail.” LaCross clarified that when he “got the purse,” Schroeder asked LaCross if he
would leave the purse with Avina. LaCross refused to do so because “she had been
arrested for a warrant for stuff dealing with identity theft, and there’s a possibility that other
items could be related to that crime in her purse.” LaCross stated that it is “typical” for
him to take an arrestee’s personal property, whether or not he believes the property is
related to the offense.
22 LaCross initially stated the traffic stop occurred on September 12. Later, after being shown his
police report to refresh his memory, he corrected his testimony.
29
When LaCross arrived at the jail with Schroeder, he followed his “standard
procedure,” which he described as follows: “Separate the property that they have
between the stuff that would be concealed in a bag and the stuff that they could have
access to, like money, credit cards, cellphone, search the property, make sure there's no
contraband so that isn’t going to the jail.” He stated: “She had two cellphones [in the
purse], one without a battery, one with a battery, and I took off the back, and behind the
battery was a small amount of methamphetamine.” On cross-examination, LaCross
agreed with defense counsel that his intent, at the time he took the purse, was to search
the purse for “further evidence of the warrant that I was arresting her for.” When asked
whether he had “reasonable suspicion or probable cause to believe that there was
evidence in the purse associated with her arrest,” LaCross replied: “Yes. She had—she
had already lied to me. She had possession of ID the first time I talked to her that wasn’t
hers.[23] So all those things gave me reason to believe that there could have been
evidence of this crime.”
The trial court denied the motion to suppress. In pronouncing its ruling, the trial
court stated:
The Court having listened to the testimony presented by the witness, the
Court is in agreement with the State. Gant does have a two-prong test. The
first, which has to do with officer safety, and certainly if the defendant was
in the car [sic] of the police department, that addresses that issue.
However, it also—the second prong has to do with evidence at the crime
that could have been destroyed that was with the defendant. And, clearly,
her purse could contain evidence of the crimes, specifically, the ID that she
had presented earlier, or any other identification that she might have had in
her purse.
23 This testimony contradicts LaCross’s testimony given later at trial that Schroeder was not able to
produce identification at the September 10 traffic stop.
30
And for that reason, the Court is going to allow—is going to deny your
Motion to Suppress and allow the State to present that evidence.
3. Analysis
Schroeder argues that the search was unreasonable because “it was not
substantially contemporaneous with the arrest and the justifications for a search incident
to arrest were no longer present.” She notes that “[t]he purpose of a search incident to
arrest is to seize weapons that could be used against the police officer and to prevent the
destruction of evidence of the crime” but that, at the time of the search, she “no longer
had possession of the purse and could not have easily accessed it to retrieve any weapon
or destroy any evidence.”
Schroeder relies on Gant, where the appellant was arrested for driving with a
suspended license, handcuffed, and locked in the back of a patrol car. 556 U.S. at 335.
Police then searched the appellant’s car and discovered his jacket, which contained
cocaine. Id. The United States Supreme Court stated:
In Chimel [v. California, 395 U.S. 752, 763 (1969)], we held that a search
incident to arrest may only include “the arrestee’s person and the area
‘within his immediate control’—construing that phrase to mean the area
from within which he might gain possession of a weapon or destructible
evidence.” Ibid. That limitation, which continues to define the boundaries
of the exception, ensures that the scope of a search incident to arrest is
commensurate with its purposes of protecting arresting officers and
safeguarding any evidence of the offense of arrest that an arrestee might
conceal or destroy. See ibid. (noting that searches incident to arrest are
reasonable “in order to remove any weapons [the arrestee] might seek to
use” and “in order to prevent [the] concealment or destruction” of evidence
(emphasis added)). If there is no possibility that an arrestee could reach
into the area that law enforcement officers seek to search, both justifications
for the search-incident-to-arrest exception are absent and the rule does not
apply.
Gant, 556 U.S. at 339. The Court concluded that the warrantless search in that case was
unreasonable because (1) the appellant “could not have accessed his vehicle at the time
31
of the search,” and (2) appellant “was arrested for driving with a suspended license—an
offense for which police could not expect to find evidence in the passenger compartment
of [appellant]’s car.” Id. at 343–44 (noting that “circumstances unique to the vehicle
context justify a search incident to a lawful arrest when it is reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle”) (quotations omitted). The
Court therefore concluded that “[n]either the possibility of access nor the likelihood of
discovering offense-related evidence authorized the search in this case.” Id. at 344.
The State argues Gant is inapplicable, citing case law establishing that police are
entitled to search a suspect’s personal effects, including a purse, as part of a search
incident to a lawful arrest. In Stewart v. State, the appellant was arrested after she was
observed shoplifting. 611 S.W.2d 434, 435 (Tex. Crim. App. [Panel Op.] 1981). After the
officer took the appellant to the police station to be booked for theft, another officer noticed
appellant’s nose was running, a condition which he knew commonly resulted from cocaine
use. See id. There was also evidence that appellant had stated “she needed to thieve
because a dope deal was going on.” Id. The officer took appellant’s purse and found a
prescription bottle containing cocaine. Id. A panel of the Texas Court of Criminal Appeals
held that the search was valid, noting that “[a] search incident to . . . lawful arrest requires
no warrant if it is restricted to a search of the person or of objects immediately associated
with the person of the arrestee.” Id. at 436 (emphasis added) (citing Robinson, 414 U.S.
218). The Court held that a purse is an item “immediately associated with a person”
because it is typically “carried with a person at all times” “in the sense that a wallet or
items found in pockets are.” Id. at 438. The Court distinguished purses from other items
which courts have held were not properly part of a “full search of the person,” such as
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briefcases, attaché cases, guitar cases, sealed cardboard boxes, unlocked backpacks
and duffel bags. Id. at 437 (listing cases); see United States v. Lee, 501 F.2d 890, 892
(D.C. Cir. 1974) (holding that, because officers had probable cause to arrest, they were
entitled to “search [appellant’s] purse incident thereto”).
We find that the search was reasonable. Having lawfully arrested Schroeder,
LaCross was entitled to search her “personal effects,” including her purse.24 See Stewart,
24 As noted, the evidence which Schroeder sought to suppress was not only found within her purse,
but—more specifically—was found underneath the battery of a cell phone that was in the purse. Under the
applicable case law, LaCross was entitled to search the purse incident to his arrest of Schroeder; but the
question of whether LaCross was also entitled to pry open the battery compartment of the phone to search
for evidence is an entirely different matter. In this regard, it is noteworthy that both the United States
Supreme Court and the Texas Court of Criminal Appeals have recently concluded that the data contained
within an arrestee’s cell phone is not properly within the scope of a search incident to arrest. See Riley v.
California, 134 S. Ct. 2473, 2495 (U.S. 2014) (“Our answer to the question of what police must do before
searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”); State v.
Granville, 423 S.W.3d 399, 417 (Tex. Crim. App. 2014) (noting that “a cell phone is not like a pair of pants
or a shoe . . . . [A] citizen does not lose his reasonable expectation of privacy in the contents of his cell
phone merely because that cell phone is being stored in a jail property room” and concluding that the officer
“could have seized appellant’s phone and held it while he sought a search warrant, but, even with probable
cause, he could not ‘activate and search the contents of an inventoried cellular phone’ without one”).
Nevertheless, as the State notes, Schroeder did not argue to the trial court that LaCross’s search
was unreasonable because it extended to the contents of her cell phone. Instead, defense counsel raised
only the following grounds at the suppression hearing:
In this particular case, Your Honor, Arizona versus Gant, I believe, is the controlling law
that covers this particular situation.
She was arrested on a warrant that the officer knew about, stopped the vehicle, arrested
her, took her out of the vehicle, put her in the back of his patrol car in handcuffs, secured
her so that she couldn’t get out and closed the door. He says that the driver gave him
permission to search the vehicle, but not the purse.
Under Gant, he is not allowed to search the purse as an incident to the arrest, which is
what he testified that he did. He searched the purse incidental to the arrest. Gant doesn’t
allow that to happen. He can’t take the purse and deprive her of her right to give it to the
custody of someone else for safekeeping so that he can then take it to jail and search it.
If Gant doesn’t authorize him to search the purse at the scene with her handcuffed and
secured in the back of his patrol car, certainly Gant doesn’t allow him to then take the purse
somewhere else and search it.
I would ask the Court to suppress the evidence found in that purse as an unlawful search
under the Fourth Amendment.
To the extent Schroeder argues on appeal that the battery compartment of an arrestee’s cell phone is not
properly within the scope of a search incident to arrest, we conclude that issue has not been preserved
because it was never presented to the trial court; therefore, we do not address it. See TEX. R. APP. P. 33.1.
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611 S.W.2d at 438; Lee, 501 F.2d at 892; see also Robinson, 414 U.S. at 224–26.
Schroeder notes that the trial court based its ruling partly on the likelihood that “her purse
could contain evidence of the crimes, specifically, the ID that she had presented earlier”;
and she is correct that, despite LaCross’s testimony at the suppression hearing, the
evidence at trial established that Schroeder in fact never produced a physical
identification card of any sort. However, the trial court also based its ruling on the
possibility that the purse might contain “any other identification that she might have had.”
Here, because Schroeder was charged with fraudulently using identifying information,
evidence of the crime would have included anything in Schroeder’s purse that established
her true identity. Therefore, even disregarding LaCross’s dubious testimony that
Schroeder “had possession of ID the first time I talked to her that wasn’t hers,” it was still
reasonable for LaCross to suspect that Schroeder’s purse contained evidence of the
crime for which she was arrested. Gant is distinguishable for that reason. Cf. Gant, 556
U.S. at 344 (holding that “police could not reasonably have believed . . . that evidence of
the offense for which [appellant] was arrested might have been found” in his car).
Schroeder further contends that the search, which took place after LaCross had
transported her to jail, was unreasonable because it was not “substantially
contemporaneous with the arrest.” See Granville, 423 S.W.3d at 410. We disagree. The
court of criminal appeals has held:
Searches incident to arrest are not limited as a matter of law to those made
at the instant a suspect is taken into police custody. Rather, the legal basis
for concluding that such searches are reasonable within the meaning of the
state and federal constitutions, i.e. to discover weapons, evidence, and
contraband, is ordinarily applicable during the entire interval following arrest
and leading ultimately either to detention of the suspect or to his release on
bail pending formal accusation and trial. During this period, detainees suffer
a diminished expectation of privacy. When booked into a detention facility,
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they may be thoroughly searched without a warrant to make an inventory of
their belongings.
Rogers v. State, 774 S.W.2d 247, 264 (Tex. Crim. App. 1989) (finding that search of
appellant’s sock after he was lawfully arrested and taken to the sheriff’s office was valid
because “appellant was still in custody of the arresting officers”), overruled on other
grounds by Peek v. State, 106 S.W.3d 72 (Tex. Crim. App. 2003). The United States
Supreme Court and federal appeals courts have also held that a search incident to arrest
need not immediately follow the arrest, but instead “may legally be conducted later when
the accused arrives at the place of detention.” United States v. Edwards, 415 U.S. 800,
803, 803 n.4 (1974) (noting that “[t]he courts of appeals have followed this same rule,
holding that both the person and the property in his immediate possession may be
searched at the station house after the arrest has occurred at another place and if
evidence of crime is discovered, it may be seized and admitted in evidence” and collecting
cases); Abel v. United States, 362 U.S. 217, 239 (1960); United States v. Curtis, 635 F.3d
704, 712 (5th Cir. 2011); United States v. Hambrick, 630 F.3d 742, 748 (8th Cir. 2011).
The Edwards Court stated:
[O]nce the accused is lawfully arrested and is in custody, the effects in his
possession at the place of detention that were subject to search at the time
and place of his arrest may lawfully be searched and seized without a
warrant even though a substantial period of time has elapsed between the
arrest and subsequent administrative processing, on the one hand, and the
taking of the property for use as evidence, on the other.
Edwards, 415 U.S. at 807. Here, LaCross explained that he searched the purse at the
jail instead of at the scene of the traffic stop because “I would rather search it in a well-lit
area that has a table that I can set things down on as opposed to inside of a vehicle or on
the hood of a squad car.” This was permissible under Edwards and Rogers. See id.
(noting that “it is difficult to perceive what is unreasonable about the police’s examining
35
and holding as evidence those personal effects of the accused that they already have in
their lawful custody as the result of a lawful arrest”); Abel, 362 U.S. at 239; Curtis, 635
F.3d at 712; Hambrick, 630 F.3d at 748; Rogers, 774 S.W.2d at 264.
For the foregoing reasons, the trial court did not err in denying Schroeder’s motion
to suppress the drug evidence. We overrule her third issue.
E. Reformation of Judgments
Schroeder’s ninth through twelfth issues contend that the judgments on appeal
should be reformed to correct two clerical errors: (1) the judgments both incorrectly state
that she pleaded “true” to the two enhancement paragraphs, and (2) the judgments both
incorrectly state that the offenses for which Schroeder was convicted are third-degree
felonies.
The State concedes error. The record substantiates Schroeder’s claim that she
pleaded “not true” to the enhancement paragraphs; and it clearly reflects that she was
charged with, tried for, and convicted of state-jail felonies, not third-degree felonies. In
particular, the indictments alleged and the proof established that Schroeder used fewer
than five items of identifying information, see TEX. PENAL CODE ANN. § 32.51(c)(1)
(providing that the offense of fraudulent use or possession of identifying information is “a
state jail felony if the number of items obtained, possessed, transferred, or used is less
than five”), and that she possessed less than one gram of methamphetamine. See TEX.
HEALTH & SAFETY CODE ANN. § 481.115(b) (providing that the offense of possession of a
Penalty Group 1 controlled substance “is a state jail felony if the amount of the controlled
substance possessed is, by aggregate weight, including adulterants or dilutants, less than
one gram”).
36
We sustain the issues and modify the judgments to reflect that Schroeder pleaded
“not true” to the two enhancement paragraphs in each case and that the two offenses for
which she was convicted are state-jail felonies. See TEX. R. APP. P. 43.2(b).
III. CONCLUSION
Because we have found insufficient evidence to support the jury’s findings as to
the enhancement paragraphs, we reverse the punishments assessed pursuant to those
findings and remand to the trial court for a new punishment trial consistent with this
opinion. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West, Westlaw through 2013 3d
C.S.); Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim. App. 2008).25 The judgments
are in all other respects affirmed as modified herein.
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of April, 2015.
25 Schroeder asks, if we find the evidence to be insufficient to support enhancement, that we
“remand the cause for a new punishment hearing within the proper range of punishment for a state jail
felony.” We decline to provide such specific instructions, however, because it is possible that the State
may produce additional evidence at the new punishment trial that would be sufficient to establish the truth
of the enhancement paragraphs. See Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim. App. 2008) (“When
a reviewing court determines that the State’s evidence fails to show that an enhancement allegation is true,
the Double Jeopardy Clause does not bar the use of the enhancement conviction during a retrial on
punishment.”) (citing Monge v. California, 524 U.S. 721, 734 (1998)).
37