Graves v. State

• Decision Date: 24 February 2010
• Docket Number: No. 06-09-00063-CR.,06-09-00063-CR.
• Citation: 307 SW 3d 483
• Parties: James Dixon GRAVES, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

307 S.W.3d 483

James Dixon GRAVES, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 06-09-00063-CR.

Court of Appeals of Texas, Texarkana.

Submitted February 5, 2010.

Decided February 24, 2010.

Charles Mac Cobb, Mt. Pleasant, for appellant.

Steve Cowan, Dist. Atty., Daingerfield, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

James Dixon Graves, Jr., was convicted by a jury for several counts of aggravated sexual assault of a disabled individual and indecency with a child. In appealing the trial court's judgments, Graves complains that it erred in denying his motion to suppress evidence stemming from a traffic stop. Graves argues that the trial court should have authorized funds to allow an expert to conduct a physical examination of an allegedly disabled witness. Finally, he contends the trial court erred in overruling his motion for mistrial. We affirm the trial court's judgments.

I. Factual and Procedural Background

A cup of liquid was thrown out of Graves' vehicle as it was being pulled over by Officer Scott Burns for an expired registration sticker. Additional plastic cups and ice were plainly visible in the vehicle carrying twenty-year-old Carol Noguera and eighteen-year-old Aaron Seyfer. Graves was arrested for furnishing minors with alcohol. A search of the passenger compartment produced two bottles of alcoholic beverages, and a fully loaded .22 caliber handgun. In the trunk, the officer found several disturbing items including three fully loaded handguns, four digital cameras, a camcorder, two tripods, an electrical sex toy, and pornographic DVDs.

Noguera, who was also arrested for being a felon in unlawful possession of a handgun, told officers that Graves was going to film her having sex with Seyfer in exchange for money. She described an instance where she slept in Graves' home when she was fifteen after he had given her alcohol, and she woke with her pubic hair shaved. Noguera claimed that Graves had filmed her performing sexual acts in exchange for money, that she had witnessed other women perform sexual acts with and for Graves in exchange for money, that she had recently observed pornographic pictures taken by Graves, and stated that Graves possessed in excess of six obscene devices at his residence. Noguera also stated she believed Graves had pornography on his cameras and computers. Based on an affidavit filed by Burns, a magistrate judge signed a warrant authorizing a search of Graves' residence. The search produced numerous pornographic videos, pictures, and sexual devices. "There were also kids toys and items that would be associated with kids located inside his house. Specific items of interest were several Barbie dolls in Graves's bedroom."

After Burns was killed in the line of duty, Officer Billy Mack Harrison continued the investigation. His interview with Noguera resulted in her statement that she had taken Sharon Ebert, a person Harrison personally knew to be disabled, to Graves' home to be filmed performing oral sex on Graves in exchange for money. Harrison's review of the tapes obtained as a result of the first search warrant confirmed Noguera's statement and revealed "saved images of young children nude and engaging in illegal sex acts which constitutes child pornography." "In one tape, Graves coaxed Ebert by offering to go get Winnie the Pooh." Photographs made by police executing the first search warrant depicted "whips, masks, restraints, sex toys, dildos, costumes, dozens of pornographic videos adjacent to children's toys and dolls (both life-like and Barbistyle sic dolls), and Cinderella bedspreads." Harrison signed an affidavit containing his findings in seeking a second search warrant for Graves' residence, which produced similar evidence.

A review of the evidence led to the following counts upon which Graves was convicted by a jury:

                ------------------------------------------------------------------------------------------
                Our cause         Description             Statute2 and Number of     Sentence
                number1                              Counts
                ------------------------------------------------------------------------------------------
                06-09-00063-CR    Lewd exhibition         § 43.26 Possession of child    Ten years TDCJ
                                  of the genitals of      pornography/Ten counts          Concurrent
                                  children
                ------------------------------------------------------------------------------------------
                06-09-00064-CR    Actual deviant sexual   § 43.26 Possession of child    Ten years TDCJ
                                  intercourse between     pornography/Two counts          Concurrent
                                  children
                ------------------------------------------------------------------------------------------
                06-09-00065-CR    Simulated sexual        § 43.26 Possession of child    Ten years TDCJ
                                  intercourse between     pornography/Two counts          Concurrent
                                  children
                ------------------------------------------------------------------------------------------
                06-09-00066-CR    Aggravated Sexual       § 22.021 Agg. Sexual Assault   Seventy-five years
                                  Assault of Sharon       of Disabled/Thirteen counts     TDCJ Concurrent
                                  Ebert
                ------------------------------------------------------------------------------------------
                06-09-00067-CR    Indecency with          § 21.11 Indecency with a       Twenty years
                                  Noguera                 Child/Two counts                TDCJ Concurrent
                ------------------------------------------------------------------------------------------
                06-09-00068-CR    Aggravated Sexual       § 22.021 Agg. Sexual Assault   Seventy-five years
                                  Assault of Sharon       of Disabled/One count           TDCJ Concurrent
                                  Ebert
                ------------------------------------------------------------------------------------------
                06-09-00069-CR    Aggravated Sexual       § 22.021 Agg. Sexual Assault   Seventy-five years
                                  Assault of Sharon       of Disabled/Two counts          TDCJ Concurrent
                                  Ebert
                ------------------------------------------------------------------------------------------
                06-09-00070-CR    Indecency with          § 21.11 Indecency with a       Twenty years
                                  Noguera                 Child/Three counts              TDCJ Concurrent
                ------------------------------------------------------------------------------------------
                

On appeal of all judgments, Graves complains that the trial court erred in denying his: (1) motion to suppress the evidence; (2) request for funds to hire an expert; (3) request to have Ebert examined by the expert as to her disability and competency to testify; and (4) motion for mistrial. Graves also complains that the evidence was insufficient to establish Ebert was disabled under the Texas Penal Code.

II. The Trial Court Did Not Err in Overruling Graves' Motion to Suppress the Evidence

A. Standard of Review

First, Graves complains of the trial court's denial of his motion to suppress. Specifically, he claims that the reports, affidavits, and recordings by Burns demonstrating the legality of the traffic stop should not have been admitted during the hearing because they constituted hearsay and violated his Confrontation Clause rights. Graves next suggests that the affidavit by Burns contains false statements and that the sworn affidavit contained insufficient facts from which the magistrate could find probable cause that child pornography could be found at his residence. Finally, he argues that the magistrate was without authority to sign the evidentiary search warrants. Because the second warrant stemmed from the first, Graves claims "it is poisoned fruit of the vehicle search tree" and urges that all evidence obtained as a result of the second warrant should also be suppressed.

We review a trial court's decision on a motion to suppress evidence by applying a bifurcated standard of review. Rogers v. State, 291 S.W.3d 148, 151 (Tex.App.-Texarkana 2009, pet. ref'd); Elardo v. State, 163 S.W.3d 760, 764 (Tex.App.-Texarkana 2005, pet. ref'd). While we defer to the trial court on its determination of historical facts and credibility, we review de novo its application of the law and determination on questions not turning on credibility. Carmouche v. State, 10 S.W.3d 323, 332 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); Rogers, 291 S.W.3d at 151; Elardo, 163 S.W.3d at 764.

B. The Trial Court Properly Admitted Burns' Affidavits, Reports, and Recordings

With the exception of privileges, the Rules of Evidence do not apply to suppression hearings because they involve the determination of preliminary questions. Vennus v. State, 282 S.W.3d 70, 72 n. 1 (Tex.Crim.App.2009); Granados v. State, 85 S.W.3d 217, 227 (Tex.Crim.App.2002); Campbell v. State, 910 S.W.2d 475, 480 (Tex.Crim.App.1995) (hearsay is admissible at suppression hearings to demonstrate probable cause to arrest). Further, this Court has held that the right of confrontation does not attach until trial. Ford v. State, 268 S.W.3d 620, 621 (Tex.App.-Texarkana 2008), overruled on other grounds, 305 S.W.3d 530, 534 (Tex.Crim.App.2009) ("The prosecutor obviously understood appellant's objection because she responded appropriately: Hearsay is admissible in a pretrial suppression hearing; the Confrontation Clause does not apply to a pre-trial suppression hearing."). This was also the holding of the Dallas Court of Appeals in Vanmeter v. State, 165 S.W.3d 68, 74 (Tex.App.-Dallas 2005, pet. ref'd). Many other jurisdictions have held that the federal Confrontation Clause does not apply to preliminary hearings. People v. Felder, 129 P.3d 1072, 1074 (Colo.Ct.App.2005); Gresham v. Edwards, 281 Ga. 881, 644 S.E.2d 122, 124 (2007); State v. Rivera, 144 N.M. 836, 192 P.3d 1213, 1218 (2008);...