Patricia Lynn Swartz v. the State of Texas

Affirmed and Majority and Dissenting Opinions filed May 30, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00383-CR

PATRICIA LYNN SWARTZ, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 20-CR-2075

MAJORITY OPINION

A jury convicted appellant Patricia Lynn Swartz of the third-degree felony
of possession of a controlled substance, penalty group one, in an amount of one
gram or more but less than four grams. Texas Controlled Substances Act, Tex.
Health & Safety Code § 481.115(c). Appellant pleaded true to two previous felony
convictions for possession of a controlled substance, which enhanced her sentence.
The jury assessed punishment at imprisonment for twelve years. Tex. Penal Code
§§ 12.33(a), .34(a), .42(a). The trial court signed a judgment of conviction
consistent with the jury’s verdict.

Appellant argues that the trial court erred by: (1) submitting an erroneous
instruction to the jury; (2) overruling her best-evidence objection; (3) overruling
her hearsay objection; and (4) even if such errors are harmless individually, their
cumulative impact mandates reversal. We affirm.

Background

In 2020, Deputy Breann Boone was dispatched to a recreational-vehicle park
with an all-night laundromat in San Leon because there were reports of a
suspicious vehicle. On arrival, Deputy Boone found appellant and her companion
sitting in their vehicle outside the laundromat. After approaching the vehicle,
Deputy Boone requested dispatch to search for any warrants relating to appellant
and her companion. Deputy Boone was told there was an active warrant for
appellant’s arrest for a previous burglary of the coin-operated machine at the
laundromat where the vehicle was parked, as well as an out-of-state warrant from
North Carolina.

During her search of appellant incident to arrest, Deputy Boone found
methamphetamine hidden in appellant’s bra. Appellant also had a bag of pills in
her mouth, which she was attempting to hide and swallow. Various drug
paraphernalia were found in the vehicle.

Appellant was indicted for intentionally possessing methamphetamine—a
controlled substance—of more than one gram but less than four grams. At trial,
appellant’s counsel focused on the lack of justification for appellant’s arrest.
Counsel argued that the State never produced a valid warrant or affidavit
demonstrating probable cause to arrest her. And without a valid warrant, none of

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the drugs found on appellant’s person were admissible. Appellant elected to make
her exclusionary argument to the jury instead of filing a motion to suppress. See
Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977) (“The defendant’s
counsel may either file a pretrial motion to suppress evidence or he may wait until
the trial on the merits and object when the alleged unlawfully obtained evidence is
offered.”); Johnson v. State, 743 S.W.2d 307, 309-10 (Tex. App.—San Antonio
1987, pet. ref’d) (“Failure to file a pretrial motion does not waive a complaint of
improperly obtained evidence.”). Although the judge provided instruction
regarding improperly obtained evidence, the jury found appellant guilty.

Appellant timely appealed.

Analysis

A. Jurisdiction

We first address our dissenting colleague’s contention that we lack
jurisdiction over this appeal. According to the dissenting justice, there exists no
final judgment because the trial court failed to pronounce sentence. See Tex. Code
Crim. Proc. art. 42.03, § 1(a) (“sentence shall be pronounced in the defendant’s
presence”).

After the jury deliberated on punishment, the following transpired:

THE COURT: Madam foreman, I understand the jury has
reached a verdict in punishment.

THE FOREPERSON: Yes, Your Honor.

THE COURT: Please stand, Ms. Swartz. This is Cause No.
20-CR-2075, The State of Texas v. Patricia Swartz.

The verdict in the enhancement paragraphs:

We, the jury, find the allegations in Enhancement Paragraph 1
to be true.
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We, the jury, find the allegation in Enhancement Paragraph 2 to
be true.

We, the jury, having found allegations in Enhancement
Paragraph 1 and Enhancement Paragraph 2 are true, assess the
defendant’s punishment at confinement in the Institutional Division of
the Texas Department of Criminal Justice for a period of 12 years and
assess a fine in the amount of zero. That’s signed by the foreman.
Is this the verdict of each and every member of the jury?

(The jury as a whole responded “yes.”)
THE COURT: Patricia Swartz, the jury, having found you
guilty and found the allegations in Enhancement Paragraph 1 and
Enhancement Paragraph 2 to be true, assess your punishment at 12
years in the Institutional Division of the Texas Department of
Criminal Justice.

Do you have anything to say, ma’am, as to why sentence should
not now be pronounced against you?
[Appellant’s counsel]: No, Your Honor.

THE COURT: Having nothing further to say, it is the order of
this Court that you be remanded to the custody of the Galveston
County sheriff to be transported to the authorities of the Texas
Department of Criminal Justice to obey and carry out the orders of
this sentence.

The trial judge signed a judgment of conviction by jury the same day, which
was consistent with the jury’s verdict. The judgment states that appellant was
convicted by a jury, that the punishment imposed is twelve years confinement, and
that the sentence commences on April 27, 2022 (the date on which the events
quoted above occurred). The judgment orders appellant “punished in accordance
with the jury’s verdict” and orders appellant’s sentence executed.

We disagree with our colleague that the trial judge failed to pronounce
appellant’s sentence. No set formula is required. Williams v. State, No. 05-05-

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00648-CR, 2005 WL 3163784, at *1 (Tex. App.—Dallas Nov. 29, 2005, no pet.)
(mem. op., not designated for publication) (concluding trial court complied with
article 42.03 when assessing punishment). At most, the present record can be
construed as ambiguous. Even assuming that the judge’s oral pronouncement is
unclear, we are to construe the verdict, the oral pronouncement, and the judgment
together to resolve the ambiguity. E.g., Cuellar v. State, Nos. 07-20-00057-CR,
07-20-00058-CR; 2020 WL 5931048, at *3 (Tex. App.—Amarillo Oct. 6, 2020, no
pet.) (mem. op., not designated for publication); Morris v. State, Nos. 07-12-
00409-CR, 07-12-00410-CR, 2013 WL 1668222, at *1-2 (Tex. App.—Amarillo
Apr. 16, 2013, pet. ref’d) (mem. op., not designated for publication); Aguilar v.
State, 202 S.W.3d 840, 843 (Tex. App.—Waco 2006, pet. ref’d); see also Mendez
v. State, Nos. 07-19-00028-CR, 07-19-00029-CR, 07-19-00030-CR, 2019 WL
6885026, at *2 (Tex. App.—Amarillo Dec. 17, 2019, no pet.) (mem. op., not
designated for publication). We also consider the context of the court’s utterances.
Cuellar, 2020 WL 5931048, at *3; Mendez, 2019 WL 6885026, at *2. In addition
to correctly stating in appellant’s presence the punishment found by the jury, the
court also asked appellant, as is required, whether she knew of any reason the
sentence should not “now” be pronounced. She answered that she did not. There
was no confusion on appellant’s part, as she filed a notice of appeal the same day
and does not complain on appeal that the court failed to pronounce sentence.

Moreover, recitations in the judgment create a binding presumption of
regularity in the absence of direct proof of their falsity. Johnson v. State, 72
S.W.3d 346, 349 (Tex. Crim. App. 2002); Breazeale v. State, 683 S.W.2d 446, 450
(Tex. Crim. App. 1984) (op. on reh’g). This presumption will not be set aside
unless the record affirmatively shows the contrary. Breazeale, 683 S.W.2d at 450.
The judgment reflects that appellant was convicted and sentenced to twelve years

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confinement in the Texas Department of Corrections—Institutional Division.
Although the trial court stated that it would “assess your punishment” rather than
that it was “sentencing” appellant, viewing the court’s complete statements in
context we conclude that the record is not sufficient to overcome the presumption
of regularity and truthfulness carried by the formal judgment’s recitation that
appellant was convicted and sentenced consistent with the jury’s verdict.

Accordingly, considering the verdict, the court’s statements, and the
judgment, we conclude that the present record sufficiently reflects the trial court’s
intent to sentence appellant to a term of twelve years confinement and that the
judge pronounced that sentence in appellant’s presence consistent with article
42.03. Because the written judgment clearly expresses that intent, we resolve any
lack of clarity in the pronouncement of sentence in favor of appellate jurisdiction.

B. Jury instruction

In issue one, appellant argues the trial court erred by including a
good-faith-exception instruction in the jury charge. Before trial, appellant
requested the court instruct the jury to disregard any evidence obtained in violation
of the law. Appellant sought the instruction to support her argument that the
evidence of drug possession was obtained without a valid arrest warrant. Although
the trial court denied appellant’s requested instruction, the court included an
instruction in the charge based on Code of Criminal Procedure article 38.23. 1

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The Code of Criminal Procedure provides that: “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.” Tex. Code Crim. Proc. art. 38.23(a). In any case
“where the evidence raises an issue hereunder,” the jury shall be instructed that if it believes, or
has a reasonable doubt, that the evidence was obtained in violation of article 38.23, “it shall
disregard any such evidence obtained.” Id.

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1. Article 38.23 instruction

The jury charge contained the following instruction:

You have heard evidence obtained as a result of an arrest of
PATRICIA SWARTZ by Deputy Boone. Specifically, you have
heard Deputy Boone arrested the Defendant for an open warrant and
that during that arrest, Deputy Boone discovered methamphetamine
on the person of PATRICIA SWARTZ.
You may consider this evidence only if you resolve a preliminary
question in favor of the state. 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 used against the accused on the trial of any
criminal case. The state must prove, beyond a reasonable doubt, that
the evidence was not obtained in violation of the law.

The charge also contained an additional instruction, commonly referred to as
the “good-faith exception,” which provides that an exception to the
mandatory-exclusion provision is made if the law enforcement officer was “acting
in objective good faith reliance upon a warrant issued by a neutral magistrate based
on probable cause.” Tex. Code Crim. Proc. art. 38.23(b). The court instructed the
jury as follows:

A police officer may, under the law, arrest a person if she has a good
faith belief that there is a valid warrant for arrest of that individual.
Before you may consider the evidence obtained as a result of Deputy
Boone’s arrest of PATRICIA SWARTZ, you must all agree that the
state has proven, beyond a reasonable doubt, that the officer had a
reasonable belief that there was a valid warrant for her arrest. If you
find that fact beyond a reasonable doubt, then you may consider all of
the evidence obtained as a result of Deputy Boone’s arrest of the
Defendant.
If you do not find that fact beyond a reasonable doubt, then you will
disregard all evidence obtained as a result.

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Appellant objected to the inclusion of an instruction on the good-faith
exception arguing it was not raised by the evidence. Because the State never
produced the arrest warrant and supporting affidavit demonstrating probable cause,
appellant maintained there was no warrant that supported her arrest or the inclusion
of a “good faith exception” instruction.

2. Applicable law

The Court of Criminal Appeals and this court have repeatedly concluded that
if the State seeks to justify an arrest based on an arrest warrant, the warrant and
supporting probable-cause affidavit must be produced to the court for inspection to
ensure that the arrestee’s rights have been protected. Weems v. State, 167 S.W.3d
350, 356-57 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing Miller v.
State, 736 S.W.2d 643, 648 (Tex. Crim. App. 1987)); see Etheridge v. State, 903
S.W.2d 1, 19 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 920, 116 S. Ct. 314,
133 L.Ed.2d 217 (1995); Dorsey v. State, 964 S.W.2d 701, 703 (Tex. App.—
Houston [14th Dist.] 1998, pet. ref’d); Myles v. State, 946 S.W.2d 630, 636 (Tex.
App.—Houston [14th Dist.] 1997, no pet.); Torres v. State, 933 S.W.2d 339, 339
(Tex. App.—Houston [14th Dist.] 1996, no pet.).

The State may be excused from producing the warrant and probable-cause
affidavit, however, “if the State introduces sufficient evidence or testimony to
permit the trial court to determine the existence of probable cause to effect the
arrest.” Weems, 167 S.W.3d at 356; see Dorsey, 964 S.W.2d at 703. This court
explained in Dorsey, “[t]he rule requiring the State to produce the arrest warrant
was originally imposed to protect arrestee’s rights by forcing the trial court to
inspect documents and determine whether probable cause existed. However,
where probable cause is otherwise established through evidence and testimony, the
arrestee’s rights are still protected.” Dorsey, 964 S.W.2d at 704 (citations

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omitted). This showing may be accomplished in a variety of ways. Weems, 167
S.W.3d at 357. Reconstituted documents, for example, can be sufficient to
establish probable cause for arrest if the information on which the magistrate relied
to determine there was probable cause was available for review by the trial court.
See Myles, 946 S.W.2d at 636 (although original warrant was no longer available,
officer who completed paperwork for warrant testified at trial as to probable cause
alleged in affidavit). The validity of an arrest may also be shown by testimony of
the complainant or officer who furnished the basis for the probable-cause affidavit
supporting the arrest warrant. See Dorsey, 964 S.W.2d at 704 (testimony of officer
who provided probable-cause affidavit); Torres, 933 S.W.2d at 340-41 (testimony
from complaining witness and arresting officer sufficient to show probable cause
for arrest); see also Garrett v. State, 791 S.W.2d 137, 141 (Tex. Crim. App. 1990)
(holding arrest valid based on existence of outstanding warrant together with
testimony of parole worker).

3. Application

The State called David Payne, the manager of the property where the
laundromat and coin-operated machine are located. Payne testified that the
laundromat is monitored by security cameras, which he can access remotely from
his phone. He said that people have “messed with” the equipment on the property.
He recalled a specific incident occurring on July 8, when people broke into the
coin-operated machine in the laundromat. He had a security video recording of
that event and reported the incident to the police. He also reported the license plate
of a vehicle he saw on the property that was associated with the break-in. An
arrest warrant was issued for appellant for burglary of a coin-operated machine
occurring on July 8.

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Eleven days later, on July 19, Payne identified the same vehicle he
recognized from the July 8 break-in parked at the laundromat. Payne recognized
appellant from the July 8 break-in. He called 9-1-1. A recording of Payne’s 9-1-1
call was admitted into evidence and played for the jury. In the recording, Payne
stated that he received reports from residents that the occupants of that car were
dealing drugs. He gave the dispatcher a description of the car and its license plate
number and stated that he reported the car on July 8 in connection with the break-
in. He recognized the car’s occupants as the people who broke into the coin-
operated machine. He said he had a video recording of the July 8 incident.

In response to Payne’s July 19 9-1-1 call, Deputy Boone was sent to the
property. Deputy Boone spoke to a resident, who said he was involved in the prior
police report of July 8. The resident told Deputy Boone that there was a video of
appellant breaking into the coin-operated machine on the property. Deputy Boone
confirmed that the license plate number on the car matched the license number
associated with the July 8 report. Deputy Boone spoke to appellant, who was
sitting in the car’s passenger seat. Deputy Boone told appellant that she was
suspected of previously attempting to rob the coin machine. Appellant denied it.
Deputy Boone conducted a records check on appellant with the National Crime
Information Center (NCIC) and the Texas Crime Information Center (TCIC),
which revealed two active arrest warrants for appellant—one in Texas and the
other in North Carolina. The Texas warrant was for the alleged burglary of the
coin-operated machine at the same laundry facility. Deputy Boone arrested
appellant. During a search incident to the arrest, Deputy Boone found the drugs
that led to the charge at issue. When Deputy Boone arrived at the police station,
she printed the warrant worksheet as part of her arrest documentation but never
actually reviewed the original warrant or supporting affidavits.

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Because the State did not produce the actual arrest warrant or a supporting
probable-cause affidavit, we examine whether sufficient evidence or testimony
permitted the trial court to determine if probable cause existed to arrest appellant.
See Weems, 167 S.W.3d at 356; Dorsey, 964 S.W.2d at 703. Probable cause exists
when the facts and circumstances are sufficient to warrant a person of reasonable
caution in the belief that, more likely than not, a particular suspect has committed
the crime. See Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993).

We conclude that the testimony summarized above supplied the court with
facts sufficient to support a reasonable inference that appellant committed the
offense of burglary of a coin-operated machine on July 8. Payne was the
complainant whose July 8 report led to issuance of the arrest warrant for appellant.
Payne recognized appellant (and the car she occupied) as a person (and vehicle) he
had previously reported as associated with the machine break-in, captured on
video. Comparable testimony has been held sufficient to support a conclusion that
an arrest warrant was supported by probable cause when the State had not
produced the warrant or affidavit. See, e.g., Dorsey, 964 S.W.2d at 704; Torres,
933 S.W.2d at 340-41; see also Etheridge, 903 S.W.2d at 18-19 (testimony of
magistrate and officer). We hold, therefore, that although the State did not produce
the arrest warrant, the trial court could have reasonably concluded that probable
cause existed to support appellant’s arrest. The court had sufficient facts from
which it could reasonably conclude that appellant’s rights were protected. The
challenged jury instruction was not harmful error. We overrule appellant’s first
issue.

B. Best-Evidence Objection

In her second issue, appellant argues the trial court abused its discretion by
admitting testimony from Deputy Boone about the information she received from

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dispatch regarding the return of active warrants for appellant based on a
NCIC/TCIC records check. Appellant argues the best-evidence rule applied and
the State should have produced the warrants.

The best-evidence rule requires that if the contents of a writing are to be
proved, it must be by the production, if possible, of the very writing itself. Tex. R.
Evid. 1002; see Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983).
However, the best-evidence rule is inapplicable here.

Deputy Boone’s testimony that dispatch advised there were open warrants
for appellant’s arrest from Texas and North Carolina was not offered to prove the
contents of the warrants. Rather, Deputy Boone’s testimony was offered to explain
her justification for appellant’s arrest and the sequence of events. Because Deputy
Boone was not testifying as to the contents of the warrants or any public records,
we conclude the best-evidence rule is inapplicable here. See Tex. R. Evid. 1002;
cf. Dansby v. State, 530 S.W.3d 213, 229 (Tex. App.—Tyler 2017, pet. ref’d)
(best-evidence rule did not allow peace officer to testify to contents of vehicle
registration databases).

In any event, any error in admitting the challenged evidence is harmless
because, as we have held, the trial court had adequate opportunity to assess
probable cause supporting the arrest warrant based on other testimony and
evidence described above. See Garrett, 791 S.W.2d at 140.

We overrule issue two.

C. Hearsay objection

In issue three, appellant argues the trial court abused its discretion by
overruling her hearsay objection to Deputy Boone’s testimony about the
information she received from dispatch regarding the active warrants for appellant.

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Appellant argues the truth of the report was relevant to the determination of the
good-faith exception. In response, the State argues that it did not solicit any
testimony from Deputy Boone regarding the contents of the warrant.

The record reflects the following exchange:

Q. (Counsel for the State) Okay. So did you approach the vehicle and
ask what happened?
A. Yes. I wanted their side, as well.
Q. Could you tell me what happened next?
A. Whenever I approached, they had said that they weren’t on the
property; but the male I talked to earlier said there had been video.
Q. Okay.
A. So at that point, I ran both of them through TCIC, NCIC.
Q. What came back?
A. It showed that he was clear, as in he had no warrants; and she had
two warrants out of Texas and out of North Carolina.
Q. Were they both currently active warrants?
A. Yes.
....
Counsel for Appellant: It’s hearsay as to whatever the contents may
be.
The Court: Overruled.
Hearsay is a statement, other than one made by the declarant while testifying
at trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid.
801(d). Hearsay is inadmissible unless an exception created by statute or the
Texas Rules of Evidence applies. Tex. R. Evid. 802. Appellant objected that
Deputy Boone’s testimony was hearsay as to the contents of the warrant.
However, Deputy Boone did not testify as to the contents of the warrants, only to
the information provided to her regarding their existence. In fact, one of the major
themes of appellant’s cross-examination of Deputy Boone was that she did not find
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or review the Texas arrest warrant. Because Deputy Boone’s testimony was not
offered to establish the truth of the contents of the warrants, we overrule issue
three. 2

D. Cumulative error

In issue four, appellant argues that even if this court concludes that each of
the alleged errors asserted in issues one through three were harmless; taken
together, they created cumulative, reversible error. See Estrada v. State, 313
S.W.3d 274, 311 (Tex. Crim. App. 2010) (quoting United States v. Bell, 367 F.3d
452, 471 (5th Cir. 2004) (“The cumulative error doctrine provides relief only when
constitutional errors so ‘fatally infect the trial’ that they violated the trial’s
‘fundamental fairness.’”)).
We need not address this issue because we have not concluded that the trial
court committed any error as asserted in appellant’s first three issues. See
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“we are
aware of no authority holding that non-errors may in their cumulative effect cause
error”). We overrule issue four.

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To the extent that appellant argues on appeal that her hearsay objection was as to the
existence of active warrants, that argument was not the basis of her objections at trial.
Regardless, the information received by Deputy Boone also constitutes “information acted on,” a
hearsay exception. See Poindexter v. State, 153 S.W.3d 402, 408 n.21 (Tex. Crim. App. 2005),
abrogated on other grounds by Robinson v. State, 466 S.W.3d 166 (Tex. Crim. App. 2015)
(testimony from police officer generally explaining her behavior and actions is not hearsay);
Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989) (police officer should be allowed
some explanation of her presence and conduct). Although Deputy Boone could not testify as the
information in the warrant database, she was allowed to testify in explanation of her arrest of
appellant.

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Conclusion

We affirm the trial court’s judgment.

______/s/ Kevin Jewell___________
Kevin Jewell
Justice

Panel consists of Justices Jewell, Spain, and Wilson. (Spain, J., dissenting).

Publish —Tex. R. App. P. 47.2(b).

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