Keith Wylie Bowman v. State ( 2015 )

VACATED in part; Affirmed as Modified in part; Opinion Filed February 5, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01741-CR
No. 05-13-01742-CR
No. 05-13-01743-CR
KEITH WYLIE BOWMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F-10-35883-W, F-10-35927-W, F-10-35928-W
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Stoddart
Keith Wylie Bowman appeals the trial court’s judgments revoking community
supervision and adjudicating guilt in three aggravated robbery cases. Bowman entered open
pleas of guilty in all three cases. The trial court found Bowman guilty in cause number F-10-
35927-W, imposed a $2,000 fine and sentenced him to ten years in prison. Within 180 days, the
trial court granted Bowman’s motion for shock community supervision and placed him on
community supervision for ten years. The trial court deferred adjudication in the other two cases,
placed Bowman on community supervision for ten years and assessed fines of $2,000 in each
case.
Following Bowman’s arrest in November 2013, the State filed motions to revoke in the
first case and to adjudicate guilt in the other two cases. After a hearing, the trial court revoked
Bowman’s community supervision in the first case and sentenced him to ten years in prison and
a $2,000 fine. The trial court also adjudicated guilt in each of the other two cases and sentenced
Bowman to twenty years’ confinement to be served concurrently with his ten year sentence.
For reasons set out below, in cause number F-10-35927-W, we vacate the judgment
revoking community supervision and the order placing Bowman on shock community
supervision and reinstate the sentence in the trial court’s original judgment. In the other two
cases, we modify the trial court’s judgments and affirm the judgments as modified.
Before analyzing the merits of Bowman’s issues on appeal, we must address the shock
community supervision case, cause number F-10-35927-W. In that case, Bowman pleaded guilty
to aggravated robbery and was convicted of that offense. See TEX. PENAL CODE ANN. § 29.03
(West 2011). Aggravated robbery is a “section 3g offense.” TEX. CODE CRIM. PROC. ANN. art.
42.12 § 3g(a)(1)(F) (West Supp. 2014). A person convicted of aggravated robbery is not eligible
for judge-ordered community supervision. Id. Under article 42.12 § 6(a)(1), a person who is not
eligible for regular community supervision is not eligible for shock community supervision.
TEX. CODE CRIM. PROC. ANN. art. 42.12 § 6(a)(1); State v. Dunbar, 297 S.W.3d 777, 780–81
(Tex. Crim. App. 2009); see also State v. Posey, 330 S.W.3d 311, 315 (Tex. Crim. App. 2011)
(“We hold that a trial judge may not grant shock probation unless the defendant is eligible for
judge-ordered community supervision.”). Thus, Bowman was improperly placed on shock
community supervision after he was convicted of a section 3g offense. Accordingly, we vacate
the trial court’s order placing Bowman on shock community supervision and the judgment
revoking community supervision in cause number F-10-35927-W. We reinstate the sentence in
the trial court’s original judgment in that case.
In the two deferred adjudication cases, the record shows Bowman pleaded true to
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violating four conditions of community supervision, including possession of a firearm while on
community supervision. The arresting officer testified he stopped Bowman for traffic violations
and searched the car with Bowman’s consent. The officer found a crack pipe and other
paraphernalia in the car and arrested Bowman. The officer testified he seized and searched
Bowman’s cellphone incident to the arrest and found several pictures of Bowman posing with
firearms. The State offered photographs of the cellphone pictures found on Bowman’s cellphone.
Defense counsel objected to the admission of the photographs, arguing they were the fruit of an
unlawful search under the Fourth Amendment. The trial court overruled the objection and
admitted the photographs.
In his first issue, Bowman complains that the trial court erred in admitting the
photographs of pictures obtained from his cellphone into evidence. In light of recent Supreme
Court authority, the State concedes error, but argues the error was harmless.
While Bowman’s cases were pending on direct appeal, the United States Supreme Court
decided Riley v. California, 134 S. Ct. 2473 (2014). Bowman’s convictions are not final,
therefore Riley applies retroactively. Griffith v. Kentucky, 479 U.S. 314, 328 (1987); Ex parte
Keith, 202 S.W.3d 767, 769 (Tex. Crim. App. 2006) (citing Teague v. Lane, 489 U.S. 288, 310
(1989)). In Riley, the Supreme Court held that a search of the contents of a cellphone did not fall
within any well-settled exception to the Fourth Amendment’s warrant requirement. See Riley,
134 S. Ct. at 2477. Although searches incident to arrest are reasonable in limited
circumstances—to protect the officer’s safety or to prevent the destruction of evidence—the
Court held searching the data in a cellphone did not further those interests; arrestees could not
use cellphone data as a weapon and seizing a cellphone was sufficient to prevent destruction of
evidence contained in the data. See id. at 2478. Thus, the Supreme Court held a warrantless
search of a cellphone’s contents was not justified as a search incident to arrest. Id. at 2478–79.
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For Constitutional errors, we “must reverse a judgment of conviction or punishment
unless [we] determine[] beyond a reasonable doubt that the error did not contribute to the
conviction or punishment.” TEX. R. APP. P. 44.2(a). In performing this analysis, we consider the
entire record and a number of nonexclusive factors, such as the nature of the error, the extent it
was emphasized by the State, the probable implications of the error, and the weight a juror or
fact-finder would probably place on the error. See Snowden v. State, 353 S.W.3d 815, 821–22
(Tex. Crim. App. 2011). “At bottom, an analysis for whether a particular constitutional error is
harmless should take into account any and every circumstance apparent in the record that
logically informs an appellate determination whether ‘beyond a reasonable doubt [that particular]
error did not contribute to the conviction or punishment.’” Snowden, 353 S.W.3d at 822 (quoting
TEX. R. APP. P. 44.2(a)). Constitutional error does not contribute to the conviction or
punishment if the conviction and punishment would have been the same even if the erroneous
evidence had not been admitted. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007).
The record indicates Bowman pleaded true to the allegations of possession of a firearm
while on community supervision, possession of drug paraphernalia, testing positive for a number
of drugs, not avoiding persons or places of a disreputable or harmful character, and missing a
meeting with his supervising officer. The drug paraphernalia found in Bowman’s car
corroborated Bowman’s pleas of true. The trial court stated that Bowman was put on community
supervision on a “zero tolerance” basis.
The prosecutor briefly mentioned the cellphone photographs during her closing
argument. The trial court questioned Bowman about having received shock probation, his release
from the Substance Abuse Felony Punishment Facility drug treatment program just six months
before his arrest, and his drug relapse during his probation. She asked Bowman many questions
about his attempts at rehabilitation. Bowman testified he relapsed and began using illegal drugs
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again about six months after completing SAFPF. The trial court commented that in addition to
testing positive for a number of drugs, including opiates, codeine, and morphine, he took pictures
of himself posing with firearms. Although Bowman attended some Narcotics Anonymous
meetings, he did not complete the twelve-step program. The trial court indicated she took a
chance with Bowman by placing him on community supervision and drug treatment and despite
the fact that he failed to complete the terms of his probation he was asking to be continued on
community supervision.
Based on the entire record, including the violent nature of the three underlying offenses,
the number of violations alleged and supported by the record, the cumulative nature of the
photograph evidence, Bowman’s admitted drug use, his failure to complete the terms of his
community supervision, and his pleas of true, we determine the trial court’s decision to revoke
community supervision and assess punishment would have been the same even if the
photographs had not been admitted. Therefore, we conclude beyond a reasonable doubt the error
did not contribute to the convictions or punishment. Accordingly, we overrule Bowman’s first
issue.
In his second and third issues, Bowman requests modifications to two of the judgments to
reflect there was no plea bargain agreement. In issues four, five, and six, Bowman requests
modifications to the judgments to incorporate the proper motions to revoke and adjudicate guilt.
The State concedes the judgments should be modified as requested. The record reflects Bowman
pleaded guilty without a plea bargain agreement. The record also reflects the trial court ruled on
the State’s amended motions to revoke or adjudicate guilt in each of the cases. We have authority
to modify a trial court’s judgment to accurately reflect the proceedings below. See TEX R. APP. P.
43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en banc). Accordingly, we sustain
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Bowman’s second through fourth and sixth issues, which relate to cause numbers F-10-35883-W
and F-10-35928-W. We need not reach the fifth issue in light of our vacating the judgment of
revocation and order placing Bowman on community supervision in cause number F-10-35927-
W.
We vacate the trial court’s order placing Bowman on shock community supervision and
the judgment revoking community supervision in cause number F-10-35927-W. We reinstate
the sentence in the trial court’s original judgment in that case. We modify the trial court’s
judgments in cause numbers F-10-35883-W and F-10-35928-W, and affirm the trial court’s
judgments in those cases as modified.
/ Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
131742F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEITH WYLIE BOWMAN, Appellant On Appeal from the 363rd Judicial District
Court, Dallas County, Texas
No. 05-13-01741-CR V. Trial Court Cause No. F-10-35883-W.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, the judgment adjudicating guilt of the trial
court is MODIFIED as follows:
The words “20 YEARS PENITENTIARY” below the printed words “Terms of Plea Bargain:”
on the first page of the judgment are DELETED.
Item (5) in the first paragraph on the second page of the judgment is REFORMED to read as
follows:
(5) While on community supervision, Defendant violated the terms and conditions
of community supervision as set out in the State’s AMENDED Motion to
Adjudicate Guilt as follows:
See the December 16, 2013 Amended Motion to Revoke Probation or Proceed
with Adjudication of Guilt.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 5th day of February, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEITH WYLIE BOWMAN, Appellant On Appeal from the 363rd Judicial District
Court, Dallas County, Texas
No. 05-13-01742-CR V. Trial Court Cause No. F-10-35927-W.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, the trial court’s December 16, 2013 Judgment
Revoking Community Supervision and the Order Placing Defendant on Probation Under Article
42.12, Section 3(e) Code of Criminal Procedure signed January 23, 2012 are VACATED. The
sentence in the trial court’s Judgment of Conviction by Court—Waiver of Jury Trial signed
August 25, 2011 is REINSTATED.
Judgment entered this 5th day of February, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEITH WYLIE BOWMAN, Appellant On Appeal from the 363rd Judicial District
Court, Dallas County, Texas
No. 05-13-01743-CR V. Trial Court Cause No. F-10-35928-W.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, the judgment adjudicating guilt of the trial
court is MODIFIED as follows:
The words “20 YEARS PENITENTIARY” below the printed words “Terms of Plea Bargain:”
on the first page of the judgment are DELETED.
Item (5) in the first paragraph on the second page of the judgment is REFORMED to read as
follows:
(5) While on community supervision, Defendant violated the terms and conditions
of community supervision as set out in the State’s AMENDED Motion to
Adjudicate Guilt as follows:
See the December 16, 2013 Amended Motion to Revoke Probation or Proceed
with Adjudication of Guilt.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 5th day of February, 2015.
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