Zamora, Rene ( 2015 )

PD-1023-15_PD-1029-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/22/2015 3:39:30 PM
No. PD-1023-15, PD-1024-15, PD-1025-15, PD-1026-15,
Accepted 10/23/2015 12:09:20 PM
ABEL ACOSTA
PD-1027-15, PD-1028-15, and PD-1029-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
Rene Zamora
Appellant
October 23, 2015
v.
The State of Texas
Appellee
On Appeal from Travis County in Case Nos. D-1-DC-13-904008,
D-1-DC-13-904011, D-1-DC-13-904012, and D-1-DC-13-904014
through and including D-1-DC-13-904017; From the 299th
District Court, the Hon. David Crain, Judge Presiding; and the
Opinion of the Thirteenth Court of Appeals in Case Nos.
13-13-00405-CR and 13-13-00675-CR through and including
13-13-00680-CR; Delivered July 2, 2015.
Petition for Discretionary Review
Submitted by:
David A. Schulman John G. Jasuta
Attorney at Law Attorney at Law
zdrdavida@davidschulman.com lawyer1@johnjasuta.com
State Bar Card No. 17833400 State Bar No. 10592300
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
Attorneys for Rene Zamora
Oral Argument is Requested
Identity of Parties and Counsel
Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”),
the following is a complete list of the names and addresses of all parties to the
trial court’s final judgment and their counsel in the trial court, as well as
appellate counsel, so the members of the Court may at once determine whether
they are disqualified to serve or should recuse themselves from participating in
the decision of the case and so the Clerk of the Court may properly notify the
parties to the trial court’s final judgment or their counsel, if any, of the judgment
and all orders of the Court of Appeals.
Appellant State of Texas
Rene Zamora Hon. Lisa C. McMcMinn
Uvalde, Texas State's Prosecuting Attorney
Trial Counsel SBN 13803300
Post Office Box 13046
Richard Segura, Jr. Austin, Texas 78711
SBN 00788384
707 West 14th St Hon. Rosemary Lemberg
Austin, Texas 78701-1707 District Attorney
Anton “Tony” Hackebeil Post Office Box 1748
SBN 08667150 Austin, Texas 78767-1748
Post Office Box 835
Bandera, Texas 78003 Trial Counsel
Amy Meredith
Appellate Counsel SBN 24034575
David A. Schulman John Lee Hunt, Jr.
SBN 17833400 SBN 24036814
John G. Jasuta
SBN 10592300 Appellate Counsel
1801 East 51st St, Ste 365-474
Austin, Texas 78723 Angie Danielle Creasy
SBN 24043613
Michael Scott Taliaferro
SBN 00785584
i
Table of Contents
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . vii
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . vii
Note About Abbreviations.. . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Facts of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Ground for Review Number One.. . . . . . . . . . . . . . . . . . . . . . . 3
The Court of Appeals Erred by Sustaining the Trial
Court’s Action in Overruling Appellant’s Motion to
Suppress Evidence.
Facts Relevant to First Ground for Review. . . . . . . . . . . . . . . . 3
Summary of the Argument First Ground for Review. . . . . . . . . 4
Argument & Authorities - Ground Number One. . . . . . . . . . . . 5
Conclusion - Ground Number One.. . . . . . . . . . . . . . . . . . . . 13
ii
Table of Contents
(CONT)
Ground for Review Number Two.. . . . . . . . . . . . . . . . . . . . . . 14
Whether Penal Code Section 3.03(b)(3)(B) Requires
That There Be a Plea Bargain Before a Trial Court Is
Permitted to “Stack” a Suspended or Probated
Sentence on Top of a Sentence for a Period of Years
Which Was, in Itself, Stacked on Another Sentence for
a Term of Years.
Facts Relevant to Second Ground for Review. . . . . . . . . . . . . 14
Summary of the Argument Second Ground for Review. . . . . . 15
Argument & Authorities - Ground Number Two. . . . . . . . . . . 15
Conclusion - Ground Number Two.. . . . . . . . . . . . . . . . . . . . 20
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Compliance and Delivery . . . . . . . . . . . . . . . . . 21
iii
Index of Authorities
Federal Cases:
Brinegar v. United States, 338 U.S. 160 (1949). . . . . . . . 7, 10
Chandler v. Miller, 520 U.S. 305 (1997). . . . . . . . . . . . . . . . . 8
Illinois v. Gates, 462 U.S. 213 (1983). . . . . . . . . . . . . . . . . 5, 6
States v. Sokolow, 490 U.S. 1 (1989). . . . . . . . . . . . . . . . . . . 7
United States v. Daniel, 982 F.2d 146 (5th Cir. 1993). . . . . . 7
Texas Cases
Cassias v. State, 719 S.W.2d 585
(Tex.Cr.App.1986).. . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9, 12
Crider v. State, 352 S.W.3d 704 (Tex.Cr.App. 2011). . . . . . . . 7
Davis v. State, 202 S.W.3d 149 (Tex.Cr.App. 2006). . . . . 7, 11
Flores v. State, 319 S.W.3d 697 (Tex.Cr.App. 2010). . . . . . . . 5
Gish v. State, 606 S.W.2d 883 (Tex.Cr.App. 1980). . . . . . . . . 7
Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App. 1971).. . . . . . 7
Moreno v. State, 415 S.W.3d 284 (Tex.Cr.App. 2013). . . . . . . 5
iv
Index of Authorities
(CONT)
Texas Cases (CONT):
Rodriguez v. State, 232 S.W.3d 55
(Tex.Cr.App. 2007). . . . . . . . . . . . . . . . . . . . . . . 5, 6, 12, 13
Schmidt v. State, 659 S.W.2d 420 (Tex.Cr.App. 1983). . . . . . 7
Shepherd v. State, 273 S.W.3d 681
(Tex.Cr.App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
State v. Le, PD-0605-14 (Tex.Cr.App., April 29, 2015).. . . . . . 6
State v. McLain, 337 S.W.3d 268 (Tex.Cr.App.2011).. . . . . . . 6
Zamora v. State, 13-13-00405-CR (Tex.App. -
Corpus Christi; July 2, 2015). . . . . . . . . vii, 3, 4, 11, 17, 19
Federal Constitution:
Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . vi, 7
Texas Statutes / Codes:
Code of Criminal Procedure
Article 42.08. . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
Penal Code
Section 3.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
v
Index of Authorities
(CONT)
Texas Statutes / Codes (CONT):
Penal Code (CONT)
Section 3.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.03(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.03(b). . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Section 3.03(b)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.03(b)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.03(b)(3)(B). . . . . . . . . . . . . . . . . . . . . 14, 19
vi
Statement Regarding Oral Argument
Given the Fourth Amendment principles involved and
their broad application to Texas’ jurisprudence, Oral
Argument is requested as to Appellant’s First Ground for
Review.
Statement of the Case
The following is a general statement of the nature of the case:
This case involves the issues of the sufficiency of the four
corners of a search warrant affidavit, and whether a term
of probation can be “stacked” on top of two prison (state
jail) sentences which have themselves been stacked.
Statement of Procedural History
The following is a summary of the procedural history of the
instant case:
Appellant was charged by indictment with multiple
counts of “Improper Photography or Visual Recording,” a
state jail felony. Following a jury trial, he was convicted
in case number D-1-DC-13-904015 (PD-1023-15),1 and
sentenced to two years in state jail on each of six (6)
counts. Subsequently, he entered pleas of guilty in all
remaining cases.
He was sentenced by the trial court to two years in state
jail in each of the remaining cases. The trial court
1
Further references to case numbers will utilize the case numbers assigned by
the Court of Criminal Appeals.
vii
ordered the sentence in case number PD-1029-15 to run
consecutively to the sentence in case number
PD-1023-15. In case number PD-1027-15, the trial court
imposed a 3 year term of community supervision, “to
begin when the judgment and sentence in said Cause
Number D1-DC-13-904016 shall have ceased to
operate.”2
Notice of Appeal was timely given in case number
PD-1023-15 on May 28, 2013. Notice of Appeal was
timely given in all other cases on October 31, 2013. The
Court of Appeals affirmed Appellant’s convictions in
Zamora v. State, Nos. 13-13-00405-CR3 and
13-13-00675-CR4 through and including 13-13-00680 5
(Tex.App. - Corpus Christi; July 2, 2015)(not designated
for publication).
By previous Order of this Court, this petition is timely
filed if presented to the Clerk of the Court of Appeals on
or before October 23, 2015.
Note About Abbreviations
In this brief, Appellant refers to the Clerk’s Record as “CR”
followed by the appropriate page: e.g., “(CR 123).” Appellant refers
to the Reporter’s Record as “RR” followed by the volume, page and
line numbers: e.g., “(RR Vol. 3, P. 47, L. 12-15).”
2
PD-1029-15.
3
PD-1023-15.
4
PD-1024-15.
5
PD-1029-15.
viii
No. PD-1023-15, PD-1024-15, PD-1025-15, PD-1026-15,
PD-1027-15, PD-1028-15, and PD-1029-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
Rene Zamora
Appellant
v.
The State of Texas
Appellee
On Appeal from Travis County in Case Nos. D-1-DC-13-904008,
D-1-DC-13-904011, D-1-DC-13-904012, and D-1-DC-13-904014
through and including D-1-DC-13-904017; From the 299th
District Court, the Hon. David Crain, Judge Presiding; and the
Opinion of the Thirteenth Court of Appeals in Case Nos.
13-13-00405-CR and 13-13-00675-CR through and including
13-13-00680-CR; Delivered July 2, 2015.
Petition for Discretionary Review
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Rene Zamora, Appellant in the above styled and
numbered cause, by and through David A. Schulman and John G.
Jasuta, his undersigned attorneys of record, and respectfully files
this “Petition for Discretionary Review,” and would show the Court
as follows:
1
Facts of the Case
(As Set out in the Court of Appeals’ Opinion)
This consolidated appeal involves multiple counts across seven
charges of improper photography or visual recording brought against
Zamora, who served as the equipment manager for The University of
Texas at Austin’s (UT) women’s track team.
V.S., a UT women’s track team member, testified that on
September 3, 2010, after competing at a meet in Houston earlier that
day, the team arrived in Austin at the Mithoff Track and Soccer
Fieldhouse, and V.S. decided to take a shower in the team’s locker
room. As V.S. showered, she looked up to the shower curtain rod of the
shower stall and noticed the lens of a “flip camera” pointed at her.
Startled, V.S. pulled the curtain back and observed Zamora running
away from the showers. V.S. called out to Zamora, but Zamora simply
said “‘sorry’ and kept on running.” V.S. testified that she notified her
coach, Stephen Sisson, following the incident, and Coach Sisson
notified the UT police department.
UT Police Detective Michael Riojas questioned Zamora and
eventually obtained a search warrant of Zamora’s apartment. At
Zamora’s apartment, Detective Riojas seized an Apple PowerBook as
well as a couple of USB “thumb drives,” or portable electronic storage
devices. The devices were later turned over to the UT Information
Security Office for forensic analysis. Daryl Ashley, a UT Information
Security Office employee, testified that his examination of the Apple
PowerBook revealed various image and video files that depicted
“individuals who were photographed or video [taped] . . . in the locker
room facility on [the UT] campus or in another location.”
Zamora pleaded not guilty to all of the counts alleged in appellate
cause number 13-13-00405-CR and was tried by a jury. After hearing
the evidence, the jury found Zamora guilty as charged and sentenced
him to two years’ imprisonment in the Texas Department of Criminal
Justice. Zamora later pleaded guilty to the remaining six multiple-count
charges and was sentenced by the trial court in the following manner:
(1) two years’ imprisonment for appellate cause numbers
13-13-00678-CR, 13-13-00677-CR, 13-13-00675-CR, and
13-13-00676-CR, to run concurrent with appellate cause number
13-13-00405-CR; (2) two years’ imprisonment for appellate cause
number 13-13-00680-CR, to run cumulative to the 13-13-00405-CR
2
sentence; and (3) two years’ imprisonment, suspended and probated for
three years, for appellate cause number 13-13-00679-CR, which will
commence following the 13-13-00680-CR sentence. This appeal
followed.
Zamora, slip op. at 2-3.
Ground for Review Number One
The Court of Appeals Erred by Sustaining the Trial
Court’s Action in Overruling Appellant’s Motion to
Suppress Evidence.
Facts Relevant to First Ground for Review
During the investigation into the offense, a search warrant was
executed at Appellant’s apartment, during Appellant’s absence. The
officers executing the search warrant seized computer equipment
which contained both still photos and video clips. Every
photographic exhibit used by the State during trial in this case was
obtained from one of the devices seized pursuant to the search
warrant. According to the Court of Appeals:
Detective Riojas’s affidavit outlined the facts that started his
investigation of Zamora, including the report filed by V.S. related to
the September 3, 2010 locker room shower incident. The affidavit also
states that Detective Riojas spoke with Zamora, who admitted to
filming V.S. in the shower with a camera that recorded onto digital
memory cards. Furthermore, the affidavit states that Zamora was aware
that digital media can be stored onto computers, and Zamora admitted
that his home personal computer, an Apple notebook, contained
3
“numerous amounts of graphic photographs depicting sexual acts.” The
affidavit provides a detailed explanation to the magistrate regarding
how digital media is stored on computers. Detective Riojas also stated
in his affidavit that based on his training and experience, “it is known
that digital media video recordings are downloaded to computers and
media storage devices.” Finally, the affidavit notes that the UT
women’s track team owns three digital video cameras that were
available to Zamora and one of the cameras was “missing its media
storage card.” Based on this information, Detective Riojas asserted that
probable cause existed that Zamora’s personal computer was used to
further his crimes of improper photography or visual recording.
Zamora, slip op. at 5-6.
Appellant moved to suppress the fruits of the search, claiming
that the search warrant affidavit could not and did not
demonstrate probable cause. A hearing without live testimony was
conducted on the motion to suppress, during which the parties
argued whether the affidavit in support of the search warrant was
sufficient to establish. The trial court overruled the motion to
suppress (RR “Supplemental Volume Motion to Suppress Evidence
Court’s Ruling,” PP. 5-6).
Summary of the Argument
First Ground for Review
The Court of Appeals’ analysis ignored the law and the facts
and, therefore, reached the wrong conclusion. A proper analysis
4
would have determined the affidavit in support of the search
warrant demonstrated nothing more than a mere possibility there
would be any relevant information discovered.
Argument & Authorities - Ground Number One
Before issuing a search warrant, the magistrate must first find
probable cause that a particular item will be found in a particular
location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Cr.App.
2007); Flores v. State, 319 S.W.3d 697, 702 (Tex.Cr.App. 2010);
Moreno v. State, 415 S.W.3d 284, 287 (Tex.Cr.App. 2013). This
process requires that the magistrate “make a practical,
commonsense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘basis
of knowledge’ of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
The reviewing court reviews a trial court’s decision to deny a
motion to suppress for an abuse of discretion. Shepherd v. State,
5
273 S.W.3d 681, 684 (Tex.Cr.App. 2008). It applies a highly
deferential standard to the magistrate’s determination because of
the constitutional preference that searches be conducted pursuant
to a warrant. Gates, 462 U.S. at 236; State v. McLain, 337
S.W.3d 268, 271 (Tex.Cr.App.2011). Accordingly, the reviewing
Court’s duty is “simply to ensure that the magistrate had a
substantial basis for concluding that probable cause existed,”
based on the four corners of the affidavit and reasonable inferences
therefrom. Gates, 462 U.S. at 238-239; Cassias v. State, 719
S.W.2d 585, 587-588 (Tex.Cr.App.1986); State v. Le, PD-0605-14
(Tex.Cr.App., April 29, 2015)(slip op. at 8-9). The reviewing court
must attempt to determine whether, looking only at the affidavit
involved, the magistrate had a substantial basis for concluding
that a search would uncover evidence of wrongdoing. Gates, 462
U.S. at 236.
As this Court held in Rodriguez, 232 S.W.3d at 60, the federal
courts have also held that probable cause means a fair probability
that contraband or evidence of a crime will be found. See, e.g.,
6
United States v. Sokolow, 490 U.S. 1, 7 (1989); United States v.
Daniel, 982 F.2d 146, 151 (5th Cir. 1993). A search warrant is
supported by probable cause when the facts set out within the
“four corners” of the affidavit are “sufficient to justify a conclusion
that the object of the search is probably on the premises to be
searched at the time the warrant is issued.” Davis v. State, 202
S.W.3d 149, 154 (Tex.Cr.App. 2006)(emphasis added).6
As it pertains to the instant case, “probable cause” means
something more than “mere suspicion.” Probable cause requires
the existence of facts sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is
being committed. Brinegar v. United States, 338 U.S. 160, 175
(1949). “The Fourth Amendment . . . restraint on government
conduct generally bars officials from undertaking a search or
seizure absent individualized suspicion.” Chandler v. Miller, 520
U.S. 305, 308 (1997). As indicated by the trial court’s comments
6
See also Crider v. State, 352 S.W.3d 704, 707 (Tex.Cr.App. 2011)(FN6), citing
Schmidt v. State, 659 S.W.2d 420 (Tex.Cr.App. 1983); Gish v. State, 606
S.W.2d 883, 886 (Tex.Cr.App. 1980); Heredia v. State, 468 S.W.2d 833
(Tex.Cr.App. 1971).
7
when it denied the motion to suppress, the averments in the
search warrant demonstrate nothing more than there was some
possibility relevant information might be found.
In Cassias, the Court had to determine whether a magistrate
was justified in issuing a search warrant. The Court held that the
facts stated within the affidavit were not sufficiently specific to the
residence sought to be searched to support a finding of probable
cause that marijuana and cocaine would be found there. Cassias,
719 S.W.2d at 587.
In that case, although an “apparently reliable” confidential
informant had seen the defendant in possession of marijuana and
cocaine within twenty-four hours of the affiant’s request for the
warrant, nothing in the affidavit connected the defendant to the
residence. The affidavit alluded to a surveillance, but did not
clearly indicate where the surveillance occurred. In the course of
that surveillance, a different individual, not the defendant, was
observed “carrying brick type packages believed to be marijuana.”
That same individual was also seen carrying a plastic tub and
8
tubing into the back yard. Finally, the affidavit stated that at some
unspecified time the affiant had seen “several narcotics users” “in
and out” of the residence “for brief periods of time.”7
The Cassias Court held that it was unreasonable for the
magistrate to find probable cause to search the residence based
upon the affidavit in support of the search warrant.
Even assuming that it was even the named residence that was the subject of
the surveillance, nothing but apparently innocent activity was observed. The
affidavit supplied no basis to support the conclusion that the “bricks” were
marijuana, there being no description of the characteristics or odor of the
bricks that would lead the magistrate to a conclusion that they were
marijuana, or even explain why the affiant believed they were. There was
no description of the possible use of a tub or tubing that was said to be at the
location, or how these articles are consistent with illegal activity. Finally,
there was no explanation as to why the affiant concluded that the persons
observed were narcotics users. The affiant failed to state how he knew the
persons were narcotics users and how their presence on the property led to
the conclusion that marijuana and cocaine would be present.
Cassias, 719 S.W.2d at 587. Appellant asserts that the search
warrant affidavit in the instant case was even more deficient than
that in Cassias.
The affidavit in the instant case did not give any indication
that Appellant made any statement which would indicate that
there were any images on either his computer or the storage
7
See Cassias, 719 S.W.2d at 586-587.
9
devices. Additionally, nothing within the affidavit indicated that
any of the images the affiant speculated would be found on
Appellant’s computer (or storage devices) would constitute child
pornography.
Finally, to the extent that the search warrant’s affiant formed
a belief, at the time he interviewed Appellant, that the computer
might contain relevant images, nothing in the affidavit supports a
conclusion that such images would still be on the computer four
days later. The trial court’s comments at the time it denied the
motion to suppress, like the assertions in the search warrant
affidavit, clearly do not demonstrate that evidence of the crime
would probably be found. Probable cause is more than “bare
suspicion.” Brinegar, 338 U.S. at 174-175.
In its opinion rejecting Appellant’s Fourth Amendment claim,
the Court of Appeals wrote:
Zamora cites to Cassias v. State to support his argument that Detective
Riojas’s affidavit failed to establish probable cause to search his
computer. 719 S.W.2d 585 (Tex. Crim. App. 1986). However, we find
Cassias distinguishable and inapplicable to the facts of this case. In
Cassias, the court of criminal appeals held that the facts and
circumstances of the affidavit, provided by a confidential informant, in
that case were “too disjointed and imprecise” to believe that illegal
10
drugs would be found at the searched property. Id. at 590. Unlike in
Cassias, Zamora, the subject of the investigation, admitted that his
computer contained graphic photographs of a sexual nature, and was
aware that digital media could be stored on computers. Furthermore,
the affidavit noted that one of the track team’s video cameras was
missing its media storage card. We hold that the facts and inferences
in this case are sufficient to establish a fair probability that Zamora
used his home computer to further his crimes of improper photography
or visual recording, and we defer to the magistrate’s finding that the
affidavit demonstrated a substantial basis for his conclusion.
Rodriguez, 232 S.W.3d at 62. Zamora’s first issue is overruled.
Zamora, slip op. at 6-7.
Appellant would show that whether he “used his home
computer to further his crimes” was and is of no importance. The
sole question the Court of Appeals should have decided was
whether the affidavit demonstrated that relevant evidence would
probably be found on the premises of Appellant’s apartment “at the
time the warrant is issued.” Davis, 202 S.W.3d at 154.
That Appellant may have, at some time in the past, “used his
home computer to further his crimes of improper photography or
visual recording” would be of no help to the magistrate in
determining the answer to that question. This is especially true in
this case, given that, as pointed out by defense counsel in the
hearing on the motion to suppress (RR Vol. 2, P. 8), four days had
11
elapsed between the initial incident and the issuance of the search
warrant. Such a period of time would have been more than
sufficient for any evidence of the “crimes of improper photography
or visual recording” to have been removed from Appellant’s
computer, and/or more than sufficient time for Appellant to have
moved his computer equipment to a different location, or even to
have destroyed the computer equipment.
In regards to the time frame relationship between the initial
incident and the issuance of the search warrant, the search
warrant affidavit in the instant case provided even less information
than the affidavit deemed to have been deficient in Cassias. The
affidavit in this case provided the magistrate no time frame
information.
In Rodriguez, on which the Court of Appeals relied, the Court
held that probable cause exists when there is a “fair probability”
that contraband or evidence of a crime will be found at the
specified location. Rodriguez, 232 S.W.3d at 60. That’s will be
12
found, not might be found. Thus, Rodriguez is clearly not
supportive of the Court of Appeals’ holding.
Conclusion - Ground Number One
Nothing in the search warrant affidavit in this case supported
the conclusion that evidence of the crimes Appellant was at that
time alleged to have committed would probably be found in his
apartment. Rather, the affidavit demonstrated only that such
evidence may have been there at some unspecified point, without
any indication that such evidence ever was actually to be found at
the apartment, let alone that it would probably be found there at
the time the search warrant was issued.
Thus, the trial court erred in overruling Appellant’s motion to
suppress evidence, and the Court of Appeals erred by affirming the
trial court’s actions. The motion to suppress evidence should have
been granted, and Appellant is entitled to a new trial.
13
Ground for Review Number Two
Whether Penal Code Section 3.03(b)(3)(B) Requires
That There Be a Plea Bargain Before a Trial Court Is
Permitted to “Stack” a Suspended or Probated
Sentence on Top of a Sentence for a Period of Years
Which Was, in Itself, Stacked on Another Sentence for
a Term of Years.
Facts Relevant to Second Ground for Review
Appellant was convicted by a jury in case number PD-1023-15
in March of 2013. In September of 2013, Appellant entered pleas
of guilty in all remaining cases.
The trial court sentenced Appellant to two (2) years in a State
Jail in each case, cumulated (“stacked”) the sentence in
PD-1029-15 on the sentence previously imposed in PD-1023-15,
and probated the sentence in PD-1028-15 for a period of three (3)
years, with that term of probation (“community supervision”) not
to begin until Appellant had been released from State Jail on the
two (2) year sentence in PD-1029-15. Each of the other two year
sentences were to be served concurrently with the two year
14
sentence in PD-1023-15. Appellant timely objected to the trial
court’s action (RR 3 of 4, P. 55, L. 7-8).
Summary of the Argument
Second Ground for Review
Absent a plea bargain permitting it to do so, a trial court may
not stack a probated sentence on top of a sentence for a term of
years which has itself been stacked on a sentence for a term of
years.
Argument & Authorities - Ground Number Two
Three statutes govern the trial court’s authority to stack. The first
is Article 42.08, C.Cr.P., which provides as follows:
(a) When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same manner
as if there had been but one conviction. Except as provided by Sections (b)
and (c), in the discretion of the court, the judgment in the second and
subsequent convictions may either be that the sentence imposed or
suspended shall begin when the judgment and the sentence imposed or
suspended in the preceding conviction has ceased to operate, or that the
sentence imposed or suspended shall run concurrently with the other case
or cases, and sentence and execution shall be accordingly; provided,
however, that the cumulative total of suspended sentences in felony cases
shall not exceed 10 years, and the cumulative total of suspended sentences
in misdemeanor cases shall not exceed the maximum period of confinement
in jail applicable to the misdemeanor offenses, though in no event more than
three years, including extensions of periods of community supervision
under Section 22, Article 42.12, of this code, if none of the offenses are
offenses under Chapter 49, Penal Code, or four years, including extensions,
if any of the offenses are offenses under Chapter 49, Penal Code.
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(b) If a defendant is sentenced for an offense committed while the defendant
was an inmate in the Texas Department of Criminal Justice and serving a
sentence for an offense other than a state jail felony and the defendant has
not completed the sentence he was serving at the time of the offense, the
judge shall order the sentence for the subsequent offense to commence
immediately on completion of the sentence for the original offense.
(c) If a defendant has been convicted in two or more cases and the court
suspends the imposition of the sentence in one of the cases, the court may
not order a sentence of confinement to commence on the completion of a
suspended sentence for an offense.
Once the exceptions of sections “b” and “c” are considered, Art.
42.08 effectively provides a trial court with three distinct options:
Ø Impose sentences of confinement to be served either
concurrently or consecutively;
Ù Suspend sentences of confinement and order periods of
community supervision to be served either concurrently or
consecutively; or
Ú Impose a sentence, suspend another sentence, and order the
suspended sentence to run either concurrently with the
imposed sentence or after the imposed sentence has ceased to
operate.
The second of the three statutes governing the trial court’s
authority to stack is Section 3.01 of the Penal Code. This section
provides the definition for a “single criminal episode.” It is
undisputed that Appellant was found guilty of more than one
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offense arising out the same criminal episode. Zamora, slip op. at
8.
The third statute is Penal Code section 3.03, which contains
special stacking rules when the defendant is convicted of multiple
offenses in a consolidated trial. In pertinent part, Section 3.03
provides as follows:
(a) When the accused is found guilty of more than one offense arising out of
the same criminal episode prosecuted in a single criminal action, a sentence
for each offense for which he has been found guilty shall be pronounced.
Except as provided by Subsection (b), the sentences shall run concurrently.
Under the plain language of Section 3.03(a), a court must
order a defendant’s sentences to run concurrently when the
defendant has been convicted of more than one offense in a
consolidated trial. As explained, infra, Section 3.03(b) restores the
trial court’s discretion to stack sentences, even when the offenses
are tried together, if the resulting convictions involve certain
enumerated offenses, such as intoxication assault and intoxication
manslaughter.
In 2005, the legislature expanded on Section 3.03(b) by
including a list of enumerated offenses subject to the exception.
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Appellant acknowledges that, because of that action, under sub-
section (b)(2)(B) of the current version of Section 3.03, sentences
(and, therefore, periods of probation) for Penal Code section 21.15
(Improper Photography) may be stacked, even when tried in a
single criminal action.
That provision, however, only applies to cases in which there
was a plea agreement. See Penal Code section 3.03(b):
(b) If the accused is found guilty of more than one offense arising out of the
same criminal episode, the sentences may run concurrently or consecutively
if each sentence is for a conviction of:
***
(3) an offense:
(A) under Section 21.15 or 43.26, regardless of whether the
accused is convicted of violations of the same section more
than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a case in which
the accused was charged with more than one offense listed in
Paragraph (A), regardless of whether the accused is charged
with violations of the same section more than once or is
charged with violations of both sections;
In short, the trial court would have been authorized to stack
the probation imposed in case number PD-1028-15 on the
sentence imposed in case number PD-1029-15 if the sentences
imposed on October 24, 2013, were part of a plea bargain. There
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was, however, no agreement as to sentencing, and, thus, the trial
court lacked the authority to do what it did.
At the Court below, Appellant argued that Penal Code Section
3.03(b)(3)(B) only permitted multiple sentences (and, therefore,
periods of probation) for convictions under Penal Code section
21.15 (improper photography), to be stacked in cases in which
there was a plea agreement. Zamora, slip op. at 8. The Court of
Appeals rejected this argument, finding that “section 3.03(b)(3)(B)
does not require a plea bargain,” and that the section “is an
alternative avenue under section 3.03(b)(3) for which a trial court
may order the sentences to run concurrently or consecutively.”
Zamora, slip op. at 8-9.
Appellant respectfully suggests that the Court of Appeals has
misinterpreted Penal Code section 3.03(b)(3). Before the trial court
may stack a suspended or probated sentence on top of a sentence
for a term of years in circumstances such as are present in the
instant case, there must be a plea bargain permitting the trial
court to do so.
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Conclusion - Ground Number Two
Appellant was convicted of offenses arising out of a single
criminal episode which were tried in a single criminal action.
There was no agreement as to punishment, so the trial court was
without the authority to order the term of probation / community
supervision in case number PD-1028-15 to begin only after
Appellant had been released from State Jail on the two (2) year
sentence in case number PD-1029-15. Thus, the cumulation order
found at page 22 in the Clerk’s Record for case number
PD-1028-15 was improperly entered and should be struck.
Prayer
WHEREFORE, PREMISES CONSIDERED, Rene Zamora,
Appellant in the above styled and numbered cause respectfully
prays that the Court will grant Discretionary Review of the instant
case, and upon submission of the case will remand the case to the
Court below with instructions to return the case to the trial court
for a new trial in each cause; or, alternatively, return the case to
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the Court below with instructions to remand for a new punishment
hearing.
Respectfully submitted,
______________________________ ______________________________
David A. Schulman John G. Jasuta
Attorney at Law Attorney at Law
zdrdavida@davidschulman.com lawyer1@johnjasuta.com
State Bar Card No. 17833400 State Bar No. 10592300
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
Attorneys for Rene Zamora
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Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 4,208 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with
Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on October
22, 2015, a true and correct copy of the above and foregoing “Petition
for Discretionary Review” was transmitted via the eService function
on the State’s eFiling portal, to Matthew Foye
(matthew.foye@traviscountytx.gov), counsel of record for the State of
Texas; and to the Hon. Lisa McMinn (Lisa.McMinn@SPA.texas.gov),
State’s Prosecuting Attorney.
_______________________________________
David A. Schulman
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Exhibit “A”
Court of Appeals’ Opinion of July 2, 2015.
NUMBER 13-13-00405-CR
NUMBER 13-13-00675-CR
NUMBER 13-13-00676-CR
NUMBER 13-13-00677-CR
NUMBER 13-13-00678-CR
NUMBER 13-13-00679-CR
NUMBER 13-13-00680-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RENE ZAMORA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 331st District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Benavides
By two issues, appellant Rene Zamora appeals his multiple-count convictions for
improper photography or visual recording, a state jail felony. See TEX. PENAL CODE ANN.
§ 21.15(b)(2) (West, Westlaw through 2013 3d C.S.). Zamora asserts that (1) the trial
court erred in denying his motion to suppress evidence; and (2) the trial court improperly
ordered one of his sentences to run cumulative to a prior sentence. We affirm.
I . BACKGROUND1
This consolidated appeal involves multiple counts across seven charges of
improper photography or visual recording brought against Zamora, who served as the
equipment manager for The University of Texas at Austin’s (UT) women’s track team.
V.S., a UT women’s track team member, testified that on September 3, 2010, after
competing at a meet in Houston earlier that day, the team arrived in Austin at the Mithoff
Track and Soccer Fieldhouse, and V.S. decided to take a shower in the team’s locker
room. As V.S. showered, she looked up to the shower curtain rod of the shower stall
and noticed the lens of a “flip camera” pointed at her. Startled, V.S. pulled the curtain
back and observed Zamora running away from the showers. V.S. called out to Zamora,
but Zamora simply said “‘sorry’ and kept on running.” V.S. testified that she notified her
coach, Stephen Sisson, following the incident, and Coach Sisson notified the UT police
department.
UT Police Detective Michael Riojas questioned Zamora and eventually obtained a
search warrant of Zamora’s apartment. At Zamora’s apartment, Detective Riojas seized
an Apple PowerBook as well as a couple of USB “thumb drives,” or portable electronic
1 This appeal was transferred from the Third 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.).
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storage devices. The devices were later turned over to the UT Information Security
Office for forensic analysis. Daryl Ashley, a UT Information Security Office employee,
testified that his examination of the Apple PowerBook revealed various image and video
files that depicted “individuals who were photographed or video [taped] . . . in the locker
room facility on [the UT] campus or in another location.”
Zamora pleaded not guilty to all of the counts alleged in appellate cause number
13-13-00405-CR and was tried by a jury. After hearing the evidence, the jury found
Zamora guilty as charged and sentenced him to two years’ imprisonment in the Texas
Department of Criminal Justice. Zamora later pleaded guilty to the remaining six
multiple-count charges and was sentenced by the trial court in the following manner: (1)
two years’ imprisonment for appellate cause numbers 13-13-00678-CR, 13-13-00677-
CR, 13-13-00675-CR, and 13-13-00676-CR, to run concurrent with appellate cause
number 13-13-00405-CR; (2) two years’ imprisonment for appellate cause number 13-
13-00680-CR, to run cumulative to the 13-13-00405-CR sentence; and (3) two years’
imprisonment, suspended and probated for three years, for appellate cause number 13-
13-00679-CR, which will commence following the 13-13-00680-CR sentence. This
appeal followed.
I. MOTION TO SUPPRESS
By his first issue, Zamora contends that the trial court erred in denying his motion
to suppress the evidence obtained from his apartment pursuant to the search warrant.
A. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, we must view the
evidence in the light most favorable to the trial court’s ruling. Johnson v. State, 414
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S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008). When the trial court does not make explicit findings of fact, we
infer the necessary factual findings that support the trial court’s ruling if the record
evidence (viewed in light most favorable to the ruling) supports these implied facts.
Johnson, 414 S.W.3d at 192.
Motions to suppress are reviewed pursuant to a bifurcated standard under which
the trial judge’s determinations of historical facts and mixed questions of law and fact that
rely on credibility are granted almost total deference when supported by the record. Id.
But when mixed questions of law and fact do not depend on the evaluation of credibility
and demeanor, we review the trial judge’s ruling de novo. Id. (citing State v. Kerwick,
393 S.W.3d 270, 273 (Tex. 2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997)).
B. Discussion
Zamora argues that the State lacked probable cause to support the issuing of the
search warrant. We disagree.
“The cornerstone of the Fourth Amendment and its Texas equivalent is that a
magistrate shall not issue a search warrant without first finding “probable cause” that a
particular item will be found in a particular location.” Rodriguez v. State, 232 S.W.3d 55,
60 (Tex. Crim. App. 2007). The court of criminal appeals has noted that the definition of
probable cause is “frequently beauty in the eye of the beholder.” Id. Thus, when
deciding whether probable cause exists, a “magistrate is not bound by such finely tuned
standards as proof beyond a reasonable doubt or by a preponderance of the evidence;
rather his sole concern should be probability.” Id. The test is whether a reasonable
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reading by the magistrate would lead to the conclusion that the affidavit provided a
“substantial basis for the issuance of the warrant”; thus, “[t]he magistrate's sole concern
should be probability.” Id. (internal citations omitted). Probable cause exists when, under
the totality of the circumstances, there is a “fair probability” that contraband or evidence
of a crime will be found at the specified location. Id. It is a “flexible and nondemanding”
standard. Id.
The probability sufficient to establish probable cause cannot be based on mere
conclusory statements of an affiant’s belief. Id. at 61. Instead, an affiant must present
an affidavit that allows the magistrate to independently determine probable cause, and
the magistrate’s actions cannot be a mere ratification of the bare conclusions of others.
Id. When reviewing a magistrate’s decision to issue a warrant, we apply a highly
deferential standard in keeping with the constitutional preference for a warrant. Id.
Therefore, we interpret the affidavit in a commonsensical and realistic manner,
recognizing that the magistrate may draw reasonable inferences, and when in doubt, we
defer to all reasonable inferences that the magistrate could have made. Id. The final
inquiry for our review is whether there are sufficient facts, coupled with inferences from
those facts, to establish a “fair probability” that evidence of a particular crime will likely be
found at a given location. The issue is not whether there are other facts that could have,
or even should have, been included in the affidavit; we focus on the combined logical
force of facts that are in the affidavit, not those that are omitted from the affidavit. Id. at
62. With these principles in mind, we turn to the affidavit in this case.
Detective Riojas’s affidavit outlined the facts that started his investigation of
Zamora, including the report filed by V.S. related to the September 3, 2010 locker room
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shower incident. The affidavit also states that Detective Riojas spoke with Zamora,
who admitted to filming V.S. in the shower with a camera that recorded onto digital
memory cards. Furthermore, the affidavit states that Zamora was aware that digital
media can be stored onto computers, and Zamora admitted that his home personal
computer, an Apple notebook, contained “numerous amounts of graphic photographs
depicting sexual acts.” The affidavit provides a detailed explanation to the magistrate
regarding how digital media is stored on computers. Detective Riojas also stated in his
affidavit that based on his training and experience, “it is known that digital media video
recordings are downloaded to computers and media storage devices.” Finally, the
affidavit notes that the UT women’s track team owns three digital video cameras that were
available to Zamora and one of the cameras was “missing its media storage card.”
Based on this information, Detective Riojas asserted that probable cause existed that
Zamora’s personal computer was used to further his crimes of improper photography or
visual recording.
Zamora cites to Cassias v. State to support his argument that Detective Riojas’s
affidavit failed to establish probable cause to search his computer. 719 S.W.2d 585
(Tex. Crim. App. 1986). However, we find Cassias distinguishable and inapplicable to
the facts of this case. In Cassias, the court of criminal appeals held that the facts and
circumstances of the affidavit, provided by a confidential informant, in that case were “too
disjointed and imprecise” to believe that illegal drugs would be found at the searched
property. Id. at 590. Unlike in Cassias, Zamora, the subject of the investigation,
admitted that his computer contained graphic photographs of a sexual nature, and was
aware that digital media could be stored on computers. Furthermore, the affidavit noted
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that one of the track team’s video cameras was missing its media storage card. We hold
that the facts and inferences in this case are sufficient to establish a fair probability that
Zamora used his home computer to further his crimes of improper photography or visual
recording, and we defer to the magistrate’s finding that the affidavit demonstrated a
substantial basis for his conclusion. Rodriguez, 232 S.W.3d at 62. Zamora’s first issue
is overruled.
II. SENTENCING
By his second issue, Zamora asserts that the trial court improperly sentenced him.
A. Applicable Law and Standard of Review
When a defendant has been convicted in two or more cases, the trial court has
discretion to order the sentences imposed or suspended in the second and subsequent
convictions to begin when the judgment and sentence imposed or suspended in the
preceding conviction has ceased to operate, or that the sentence imposed or suspended
shall run concurrently with the other case or cases. See TEX. CODE CRIM. PROC. art.
42.08(a) (West, Westlaw through 2013 3d C.S.). Therefore, a trial court’s decision to
order a defendant’s sentence to run cumulatively or concurrently is reviewed for an abuse
of discretion. Id.; see Nicholas v. State, 56 S.W.3d 760, 764–65 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d). In this context, we will find an abuse of discretion only if the
trial court (1) imposes consecutive sentences where the law requires concurrent
sentences; (2) imposes sentences where the law requires consecutive ones; or (3)
otherwise fails to observe the statutory requirements pertaining to sentencing. Revels
v. State, 334 S.W.3d 46, 54 (Tex. App.—Dallas 2008, no pet.); see also Nicholas, 56
S.W.3d at 765.
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B. Discussion
Zamora argues that the trial court abused its discretion in ordering his suspended
sentence in appellate cause number 13-13-00679-CR to begin after his release from his
two-year sentence in appellate cause number 13-13-00680-CR because this was not a
plea bargain case. We disagree with Zamora’s reading of the law.
Generally, when a defendant is convicted of more than one offense arising out of
the same criminal episode prosecuted in a single criminal action, the sentences shall run
concurrently. See TEX. PENAL CODE § 3.03(a) (West, Westlaw through 2013 3d C.S.).
However, if the defendant is found guilty of more than one offense arising out of the same
criminal episode, the sentences may run concurrently or consecutively if each sentence
is for a conviction of an offense under section 21.15 of the penal code, regardless of
whether the accused is convicted of violations of the same section more than once or is
convicted of violations of both sections; or for which a plea agreement was reached in a
case in which the accused was charged with more than one offense under section 21.15,
regardless of whether the accused is charged with violations of the same section more
than once or is charged with violations of both sections. See id. § 3.03(b)(3).
It is undisputed that Zamora was found guilty of more than one offense arising out
the same criminal episode under section 21.15 of the penal code (Improper Photography
or Visual Recording). Thus, we find nothing under section 3.03(b)(3) of the penal code
that would have prevented the trial court from ordering Zamora’s suspended sentence in
appellate cause number 13-13-00679 to run consecutive to Zamora’s sentence in
appellate cause number 13-13-00680. While it is true that this is not a plea bargain case,
section 3.03(b)(3)(B) does not require a plea bargain, as Zamora erroneously asserts, in
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order for the trial court to order the sentences to run consecutively. Instead, that
subsection is an alternative avenue under section 3.03(b)(3) for which a trial court may
order the sentences to run concurrently or consecutively. As a result, the trial court did
not abuse its discretion. We overrule Zamora’s second issue.
III. CONCLUSION
We affirm the trial court’s judgments.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
2nd day of July, 2015.
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