Allen Marshall Tucker v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-24-00468-CR
No. 02-24-00469-CR
No. 02-24-00470-CR
No. 02-24-00472-CR
___________________________

ALLEN MARSHALL TUCKER, Appellant

V.

THE STATE OF TEXAS

On Appeal from County Criminal Court No. 9
Tarrant County, Texas
Trial Court Nos. AXXXXXXXX, AXXXXXXXX, AXXXXXXXX, AXXXXXXXX

Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION

I. Introduction

A jury convicted Appellant Allen Marshall Tucker in municipal court of violating

multiple ordinances involving his properties at 11429 and 11467 Mosier Valley Road

and assessed fines ranging from $100 to $1,500. He appealed to the county criminal

court, which affirmed the convictions, and he now appeals to this court. We will affirm.

II. Discussion

We begin by explaining how municipal-court-of-record cases are appealed to this

court, followed by the appellate issues raised in the court below.

A. Appeals from a municipal court of record

A municipal court of record has exclusive jurisdiction over all criminal matters

arising under municipal ordinances and Class C misdemeanors. State v. Villa, 707 S.W.3d

263, 267 (Tex. Crim. App. 2024). Government Code Chapter 30 governs the structure

and operation of municipal courts of record. 1 Id. Appeals from municipal courts of

record are to county courts, county criminal courts, or municipal courts of appeal. Id.;

see Tex. Gov’t Code Ann. § 30.00014(a); see also id. § 30.00381(b) (“In this subchapter,

‘appellate courts’ means the county criminal courts of Tarrant County that have criminal

appellate jurisdiction.”). The county criminal court determines the appeal “on the basis

1
Subchapter A, “General Law for Municipal Courts of Record,” applies to each
municipality listed in Chapter 30. Tex. Gov’t Code Ann. § 30.00001(b)(1). Fort Worth
is one of them. Id. § 30.00381(a).

2
of the errors that are set forth in the appellant’s motion for new trial and that are

presented in the clerk’s record and reporter’s record prepared from the proceedings

leading to the conviction or appeal”; such an appeal “may not be by trial de novo.” Tex.

Gov’t Code Ann. § 30.00014(b) (emphasis added); see Swain v. State, 319 S.W.3d 878,

879 (Tex. App.—Fort Worth 2010, no pet.) (observing that under Section 30.00014(b),

the county criminal court may not retry the case but instead must determine the appeal

based on errors shown in the municipal-court record).

In an appeal from a municipal court of record, an appellant’s brief must present

points of error in the same manner required for a brief on appeal to this court, and the

record and the briefs “shall be limited as far as possible to the questions relied on for

reversal.” Tex. Gov’t Code Ann. § 30.00021(a), (e). If the county criminal court affirms

the municipal court’s judgment, then the appellant has the right to appeal to this court

if the fine assessed against him exceeds $100, 2 and the county criminal court record and

briefs will constitute the record and briefs on appeal to this court,3 with exceptions not

applicable here. See id. § 30.00027(a)(1), (b)(1). These statutory limitations on the record

and briefing “are strong indicators that the legislature intended for the review by a court

2
An appellant may also appeal to this court to challenge the constitutionality of
the statute or ordinance underlying his or her conviction, see Tex. Gov’t Code Ann.
§ 30.00027(a)(2), but that is not an issue in this appeal.

When we refer to the parties’ briefs in this appeal, we thus mean the county-
3

criminal-court briefs.

3
of appeals to be a second appellate review independent of the determinations made by

the first reviewing court, limited to the same challenges presented to the first reviewing

court regarding the municipal court’s judgment.” Felts v. State, 668 S.W.3d 69, 75 (Tex.

App.—Houston [1st Dist.] 2022, no pet.) (op. on reh’g).

B. Tucker’s issues

The City charged Tucker with six violations,4 and the jury convicted him of five

and acquitted him of one. The county criminal court affirmed the five convictions, and

we have dismissed one of his appeals for want of jurisdiction because the jury assessed

a fine of $100 and nothing in the record indicated that Tucker had challenged the

underlying ordinance’s constitutionality. See Tucker v. State, No. 02-24-00471-CR,

2025 WL 211332, at *1 (Tex. App.—Fort Worth Jan. 16, 2025, no pet.) (mem. op., not

designated for publication); cf. Tex. Gov’t Code Ann. § 30.00027(a). We are thus left

with Tucker’s challenges to four convictions.

In his brief, Tucker complained that the municipal court erred by denying his

directed-verdict motion and his motions to quash and to suppress and by granting the

State’s motion in limine. He also challenged the evidence’s legal sufficiency.5

4
The City had actually charged Tucker many more violations but went to trial on
only six of them.
5
In his new-trial motion, Tucker raised these complaints and also challenged the
evidence’s factual sufficiency. The factual-sufficiency standard no longer applies in
criminal cases. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)).

4
We will begin with Tucker’s motions to quash because these complaints provide

the framework for reviewing his directed-verdict and sufficiency challenges. See Williams

v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (“We treat a point of error

complaining about a trial court’s failure to grant a motion for directed verdict as a

challenge to the legal sufficiency of the evidence.”).

C. Analysis

1. Motions to quash

A challenge to a charging instrument’s sufficiency presents a question of law,

which we review de novo. State v. Ross, 573 S.W.3d 817, 820 (Tex. Crim. App. 2019). In

most cases, a charging instrument that tracks the relevant statutory text will give the

accused adequate notice. Id. Further, a municipal-court complaint must substantially

comply with the Code of Criminal Procedure’s requirements for complaints. See Tex.

Gov’t Code Ann. § 30.000126; see also Tex. Code Crim. Proc. Ann. art. 45.019(a).

Under Code of Criminal Procedure Article 45.019, a complaint is sufficient,

without regard to its form, if it substantially satisfies the following requisites: (1) it is in

writing; (2) it begins with “In the name and by the authority of the State of Texas”; (3) it

states the accused’s name; (4) it shows that the accused has committed an offense

against the law of this state or states that the affiant has good reason to believe and does

believe that the accused has committed an offense against the law of this state; (5) it

states the offense date as definitely as the affiant can; (6) it bears the affiant’s signature

or mark; and (7) it concludes with the words “Against the peace and dignity of the

5
State.” Tex. Code Crim. Proc. Ann. art. 45.019(a). If the offense charged is an offense

under a municipal ordinance only, “it may also conclude with the words ‘Contrary to

the said ordinance.’” Id. (emphasis added). If the complaint is filed in municipal court,

it must allege that the offense was committed within the territorial limits of the

municipality in which the complaint is made. Id. art. 45.019(c).

The City filed the following citations at issue in these four appeals: GA081592,

GA087599, GA081591, and GA081589. In his motions to quash the complaints in

GA0815926 and GA0875997 (solid-waste violations, 11467 Mosier Valley Road) and in

GA0815918 (solid-waste violation, 11429 Mosier Valley Road), Tucker argued that the

complaints were “too vague, indefinite, and uncertain to charge an offense.” Tucker

also filed a motion to quash in GA081589, 9 a zoning violation pertaining to excavation

6
The municipal court cause number for this citation is 2023 OR 000321. The
county criminal court cause number is AXXXXXXXX. The cause number in this court is
02-24-00469-CR.
7
The municipal court cause number for this citation is 2023 OR 000987. The
county criminal court cause number is AXXXXXXXX. The cause number in this court is
02-24-00468-CR. We note that there appears to be a typo in the complaint and
elsewhere in the record as to the citation number, but the judgment and reporter’s
record clarify that this is the correct citation number.
8
The municipal court cause number for this citation is 2023 OR 000300. The
county criminal court cause number is AXXXXXXXX. The cause number in this court is
02-24-00470-CR.
9
The municipal court cause number for this citation is 2023 OR 000296. The
county criminal court cause number is AXXXXXXXX. The cause number in this court is
02-24-00472-CR.

6
at 11429 Mosier Valley Road, on the same bases, but at the hearing, the municipal court

identified this case by its municipal-court number, 2023 OR 000296, and stated, “I don’t

see any motions filed on this one,” and then repeated, “[O]n 2023-OR-000296, there is

no motion to quash.” Tucker’s counsel did not object and did not obtain a ruling on

that motion, failing to preserve it for review. See Tex. R. App. P. 33.1; Marks v. State,

525 S.W.3d 403, 410 n.4 (Tex. App.—Houston [14th Dist.] 2017), aff’d, 560 S.W.3d

169 (Tex. Crim. App. 2018).

As required by statute, each complaint began with “In the name and by the

authority of the State of Texas,” concluded with “Against the peace and dignity of the

State,” and alleged that the offense was committed within Fort Worth’s territorial limits.

See Tex. Code Crim. Proc. Ann. art. 45.019(a), (c). The complaint in GA081592 alleged:

I, the undersigned affiant, do solemnly swear that I have good
reason to believe and do believe that ALLEN TUCKER . . . on or about
01/19/2023 and before the making and filing of this complaint . . . [d]id
then and there knowingly deposit, or allow to accumulate, solid waste, to
wit: TIRES APPLIANCES CAR PARTS WOODEN CRATES, on
private property located at 11467 MOSIER VALLEY ROAD[.]

The complaint in GA087599 alleged:

I, the undersigned affiant, do solemnly swear that I have good
reason to believe and do believe that ALLEN TUCKER . . . on or about
03/10/2023 and before the making and filing of this complaint . . . [d]id
knowingly accumulate, or allow the accumulation of one or more of the
following: damaged merchandise; used or discarded building materials;
used, discarded or broken automotive parts or equipment; or any of the
following broken, inoperable, or discarded items: household furnishings,
appliances, machines, tools, boxes, cartons, play equipment, or toys; to
wit: TIRES, APPLIANCES, CAR PARTS, AND WOODEN CRATES,
on property located at 11467 MOSIER VALLEY[.]

7
And the complaint in GA081591 alleged:

I, the undersigned affiant, do solemnly swear that I have good
reason to believe and do believe that ALLEN TUCKER . . . on or about
01/19/2023 and before the making and filing of this complaint . . . [d]id
then and there knowingly deposit, or allow to accumulate, solid waste, to
wit: TIRS [sic], WOODEN CRATES, on private property located at
11429 MOSIER VALLEY ROAD[.]

At the hearing on the motions to quash, Tucker allowed the municipal court to

group his solid-waste complaints together after the municipal court noted that Tucker

had used “ticket numbers” instead of “case numbers” and observed that “one ticket

can have several violations,” making it difficult to determine which motion went with

which case. Tucker also allowed the municipal court to narrow his complaints to:

(a) failure to state “contrary to said ordinances,” (b) failure to state an offense, and

(c) vagueness. As to vagueness, at the hearing, Tucker argued that the

GA087599 complaint stated “11467 Mosier Valley” and not “11467 Mosier Valley

Road.” [Emphasis added.]

The municipal court denied the motions to quash in all three cases, stating that

the complaints listed specific offenses, that the lack of “Road” did not make the address

vague, and that the statute does not require that the complaints say “contrary to the said

ordinance.”

In his brief, Tucker argued that the State’s complaints provided no notice

because they failed to allege all the material elements of the offenses, including a

culpable mental state and the manner of violating the ordinances. He also complained

8
that none of them concluded with the words “contrary to the said ordinance” under

Article 45.019. 10

The county criminal court did not err by overruling this issue because the

“contrary to the said ordinance” language is not mandatory. Compare Tex. Gov’t Code

Ann. § 311.016(1) (stating that “may” creates “discretionary authority or grants

permission or a power”), with id. § 311.016(2) (stating that “shall” imposes a duty), id.

§ 311.016(3) (stating that “must” creates or recognizes a condition precedent), and Tex.

Code Crim. Proc. Ann. art. 45.019(a)(1)–(7) (stating items that “must” be in a

complaint). And the complaints stated everything necessary to be proved. See State v.

Zuniga, 512 S.W.3d 902, 906 (Tex. Crim. App. 2017) (discussing what facts must be

included in an information). That is, the complaints set forth the culpable mental state

(knowingly), the alleged violations, when the violations occurred, and where, along with

the other Article 45.019 requirements, notwithstanding the obvious typo—TIRS

instead of TIRES—in the GA81791 complaint.11 See id.

10
To the extent that we have been able to decipher Tucker’s arguments in the
county criminal court, we have addressed them. But, particularly as to the
motion-to-quash issue, his brief lacks the baseline coherency that we generally expect
of a brief in this court. Cf. Tex. Gov’t Code Ann. § 30.00021(a); Tex. R. App. P. 38.1(i)
(requiring the brief to contain “a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record”).

At the hearing, Tucker’s counsel argued, “I don’t know what that word is, the
11

one before the wooden crates.” The municipal court was entitled to find this argument
disingenuous as, presumably, the county criminal court did and as we do, considering
Tucker’s counsel’s subsequent argument that “[w]e don’t even really know what is . . .

9
2. Sufficiency

In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim.

App. 2017). The factfinder alone judges the evidence’s weight and credibility. See Tex.

Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.

2021). We must presume that the factfinder resolved any conflicting inferences in favor

of the verdict, and we must defer to that resolution. Braughton v. State, 569 S.W.3d 592,

608 (Tex. Crim. App. 2018).

a. Ordinances

Tucker sought a directed verdict, complaining that the State had failed to offer

into evidence the ordinances at issue and relying on Martin v. State, 731 S.W.2d 630 (Tex.

App.—Houston [1st Dist.] 1987, pet. ref’d), and a Court of Criminal Appeals case cited

therein, Howeth v. State, 645 S.W.2d 787 (Tex. Crim. App. 1983).

Martin and its predecessor—each involving a speeding violation—are inapposite.

In Martin, the appellant was convicted of speeding and fined $55 in municipal court.

a good tire or a bad tire, because there’s no description as to why you’re saying that ‘by
me having tires, I’m wrong. I’m violating the law.’”

10
731 S.W.2d at 631. He appealed to the county criminal court at law for a de novo trial,12

was found guilty, and was fined $101. Id. In the court of appeals, he complained that

the county criminal court at law had erred by denying his directed-verdict motion

because the State had failed to prove and introduce into evidence the municipal traffic

ordinance. Id. The appellate court reversed the conviction because “[t]he ordinance was

not introduced into evidence, there was no agreement to stipulate to the contents of

the municipal ordinance, nor was there a request that judicial notice be taken of the

ordinance.” Id. (relying on Howeth, 645 S.W.2d at 788). 13

As the municipal court here explained to Tucker’s defense attorney, a charge of

speeding—unlike the instant charges—relies not only on state law but also on the

applicable city ordinance because state law provides that any speed in excess of the

12
Martin was issued on April 30, 1987, see 731 S.W.2d at 630, and the statute that
disallows a trial de novo in a municipal-court appeal became effective several months
later, on August 31, 1987. See Act of June 18, 1987, 70th Leg., R.S., ch. 811, § 1,
1987 Tex. Gen. Laws 2809, 2812 (amended 1997, 1999, 2005, 2017, 2019) (current
version at Tex. Gov’t Code § 30.00014).
13
In Howeth, the Court of Criminal Appeals held the evidence insufficient on a
speeding conviction when the municipal ordinance was not admitted into evidence but
rather stipulated to by the parties. 645 S.W.2d at 788–89. The court specifically
restricted its remarks about proving up an ordinance to when “the prosecution is
initiated under a municipal ordinance and a conviction occurs in the municipal court,
but the defendant appeals his conviction to a county court at law and receives in that court
a trial de novo.” Id. at 788 (emphasis added); cf. Act of June 18, 1987, 70th Leg., R.S., ch.
811, § 1, 1987 Tex. Gen. Laws at 2812 (amended 1997–2019). The court also noted,
“The municipal court, of course, may take judicial notice of the ordinances of its
municipality.” Howeth, 645 S.W.2d at 788.

11
posted speed limit is prima facie evidence of unreasonable speed, and the city ordinance

determines the posted speed limit. See Tex. Transp. Code Ann. § 545.352(a) (“A speed

in excess of limits . . . under another provision of this subchapter is prima facie evidence

that the speed is not reasonable and prudent and that the speed is unlawful.”); see also

id. § 545.356(c) (“A prima facie speed limit that is altered by the governing body of a

municipality . . . is effective when the governing body erects signs giving notice of the

new limit and at all times or at other times as determined.”).

Because these cases were not speeding cases, and because this is an appeal from

a trial in municipal court, not a trial de novo in the county criminal court, the municipal

court did not err by not entering the ordinances into evidence. See generally Tex. R. Evid.

204(b)(1), (d) (providing that the court may take judicial notice sua sponte of an

ordinance, that “[t]he court—not the jury—must determine municipal and county

ordinances,” and that the court’s determination must be treated as a ruling on a question

of law). Instead, the municipal court included the pertinent ordinances in the jury

charge.14 See Tex. Code Crim. Proc. Ann. art. 36.14 (requiring the charge to set forth

“the law applicable to the case”). The county criminal court did not err by overruling

Tucker’s directed-verdict issue.

14
As set out below, the ordinances’ applicable language also appeared on the
violation notices that were sent to Tucker and admitted into evidence.

12
b. Evidentiary review

In these four appeals, see II.B., supra, Tucker argued that the evidence is

insufficient to support the convictions.

Two witnesses—Fort Worth Code Officer Ann Mahoney and Tucker—testified

at trial. Mahoney, who had eleven years’ experience as a Fort Worth commercial code

officer, identified Tucker in court as the owner of the two properties15 at issue within

Fort Worth’s territorial limits, 11429 and 11467 Mosier Valley Road. Each complaint

alleged that Tucker had committed the offenses knowingly. See Tex. Penal Code Ann.

§ 6.03(b) (stating that a person “acts knowingly, or with knowledge, with respect to the

nature of his conduct or to circumstances surrounding his conduct when he is aware of

the nature of his conduct or that the circumstances exist” and acts “knowingly, or with

knowledge, with respect to a result of his conduct when he is aware that his conduct is

reasonably certain to cause the result”).

(1) Complaints

As to 11429 Mosier Valley Road, the jury convicted Tucker of having, on or

about January 19, 2023, knowingly deposited or allowed to accumulate solid waste (tires

and wooden crates),16 and of having, on or about January 19, 2023, unlawfully,

15
Because Tucker was acquitted of charges involving a third property, we will not
include it in our recitation.
16
The jury assessed a $1,500 fine for the violation.

13
knowingly, as the person in control of the premises at 11429 Mosier Valley Road,

violated the comprehensive zoning ordinance by using property zoned agricultural-use

for the continued use of excavation.17

As to 11467 Mosier Valley Road, the jury convicted Tucker of having, on or

about January 19, 2023, knowingly deposited or allowed to accumulate solid waste (tires,

appliances, car parts, and wooden crates), 18 and having, on or about March 10, 2023,

knowingly accumulated or allowed the accumulation of discarded items (tires,

appliances, car parts, and wooden crates). 19

(2) Evidence

a. Mahoney

During Mahoney’s testimony, the municipal court admitted State’s Exhibit 1, a

zoning map showing that 11429 Mosier Valley Road was zoned “AG” for agricultural

use. Mahoney testified that the “AG” zoning meant that “it’s agricultural purposes only,

crops, farm animals,” that “[a]ny equipment they could have . . . would involve

farming,” and that excavation was not considered an agricultural use. She received her

first excavation complaint about the 11429 property on December 7, 2022, from an

upset neighbor. Mahoney went out to the properties that day. On the 11467 property,

17
The jury assessed a $1,000 fine for the violation.
18
The jury assessed a $250 fine for the violation.
19
The jury assessed a $1,000 fine for the violation.

14
she saw junk motor vehicles, travel trailers, old appliances, and tires, and on the

11429 property, she saw a trailer, some defunct vehicles, an accumulation of tires and

wooden crates, and what appeared to be dirt excavation. She called Tucker to discuss

the violations and sent violation notices—State’s Exhibits 2 and 3—to him that day.

State’s Exhibit 2 listed two violations on the 11467 property; one of the

violations was accumulation of solid waste, for which the notice cited Fort Worth City

Code Chapter 16, Article XII, Section 16-294.20 State’s Exhibit 3 listed a single violation

on the 11429 property—maintaining, using, or allowing a use contrary to the designated

permitted use—for which the notice cited Fort Worth City Code Appendix A, Chapter

4, Article 6, Section 4.603.21 This notice added, “Property must be maintained free of

all unnecessary items. [L]and must be used for purposes of AG zoning.” Both notices

had a December 14, 2022 compliance date, warned that failure to correct the violation

before that date could result in a fine of up to $2,000 per day, identified Mahoney, and

provided her phone number and e-mail address.

20
The notice set out the following ordinance language: “No person shall deposit
or allow to accumulate on private property, or discharge from any place onto private or
public property in the city any dead animal, human or animal waste, foul water, solid
waste[,] or any noxious liquid waste.”
21
The notice set out the following language, “A person commits an offense if the
person maintains, uses or allows to be used any property with a use that is contrary to
the designated permitted use.”

15
Mahoney testified that property owners usually receive ten days to abate a

violation but can request additional time “as long as they’re making progress within that

time frame.” She visited the properties again on December 27, saw no changes, and left

Tucker a voice mail but refrained from issuing any citations at that point because code

officers first “try to work with people . . . and communicate and send out another

violation notice.” She spoke with Tucker by phone on January 7 and visited in person

again on January 10. Because Tucker had made minimal progress, she told him by

phone what needed to be done and then followed up with him by text. She also

discussed with him that he could not excavate on the 11429 property because of the

AG zoning, and she testified that he had not expressed any confusion about what she

meant.

On January 19, Mahoney saw dirt excavation—a truck hauling dirt away from

the 11429 property—and wooden crates, tires, and “other unnecessary items” that had

not been removed from the property and that could not be stored there under the AG

zoning. She issued the first set of citations that day. She identified State’s Exhibits 5 and

6, which were admitted without objection, as photos she had taken on January 19,

showing “where they’re excavating the dirt” on the 11429 property. The photos, date-

stamped January 19, 2023, show heavy machinery and large mounds of dirt.

On the same day, Mahoney saw tires, appliances, car parts, and wooden crates

on the 11467 property, and she testified that the property’s zoning only allowed

“[o]utside storage of construction vehicles and trailers” and that she had previously

16
spoken with Tucker about these limitations before issuing citations. State’s Exhibit

10—photos that Mahoney took of the 11467 property on January 19—were admitted

without objection and show a travel trailer and other miscellaneous objects.

Mahoney visited the properties again on January 27, observed no changes, and

sent Tucker notices of violation—State’s Exhibits 7 and 8—on February 13. State’s

Exhibit 7 addressed the 11467 property, and State’s Exhibit 8 addressed the

11429 property; both notices listed the same violations as the earlier notices and bore

the December 14, 2022 compliance date, which Mahoney explained occurred from the

notices’ having been automatically generated.

Mahoney visited the properties on March 1 and sent another notice of

violation—State’s Exhibit 9—regarding the 11429 property. The notice listed the same

earlier violation and the same December 14, 2022 compliance date but added, “Remove

all unnecessary items from the property. Continue to cease any operations of excavating

materials from the property.” She issued additional citations after visiting the properties

on March 10.

Regarding her March 10 visit, as to the 11467 property, Mahoney saw trailers,

junk vehicles, appliances, tires, and wooden crates that violated the zoning ordinances

because storing these items on the property was contrary to the zoning. She stated that

she had spoken with Tucker about his needing to remove the items and had explained

to him, before issuing the citations, what was allowed on each property.

17
During cross-examination, Mahoney agreed that in December 2022, Tucker had

told her that he needed additional time and acknowledged that he had made “minimal”

progress during that time in abating the violations. She was unsure whether some of the

items described as waste were items that he used in his business. During redirect,

Mahoney clarified that she had cited Tucker not for tires that were on vehicles but for

tires that were not on vehicles and repeated that the 11467 property’s zoning allowed

outside storage of construction vehicles and trailers only.

b. Tucker

Tucker testified that his company, which had been in business for 47 years, sells

sand, gravel, and mulch compost to construction sites. He admitted that he had spoken

with Mahoney in December and asked for some time because it had been rainy, which

made things “real muddy” and difficult to move. He also testified that he had been

shorthanded because of the holidays and the pandemic. He identified a photo from the

11467 property as a travel trailer that his company used on construction sites, and the

municipal court admitted the photo as Defense Exhibit 1. He also identified from the

photo a “no trespassing” sign on the fence post.

Tucker claimed that he had called Mahoney but could not reach her; he had

wanted to ask her about the “unnecessary items” on the notices, and he complained

that she had issued a citation listing crates and pallets, stating, “[S]ome of our supplies

came in crates and they came in pallets and . . . our pallets had deposits on them, so we

just couldn’t throw the pallets away. . . we wanted to take them back and get our deposits

18
back.” Tucker claimed that he had tried to be compliant and that there were times when

Mahoney was scheduled to meet with him and then did not show up.

During cross-examination, when asked about what progress he had made after

December 2022 to bring the properties into compliance, Tucker replied, “[W]e spent

most of our time moving some truck parts, . . . we moved the boat off, we removed

some dirt that we shouldn’t have to remove.” He complained, “[W]e got rid of the tires

that we needed,” explaining that those had been spare tires for their trucks and that

they had been storing them outside because they did not have room inside, but he also

testified that he had not removed the tires because they were necessary. He also claimed

that Mahoney never explained the violations and “just wrote the tickets.”

As to excavation, the following colloquy occurred between Tucker and the

prosecutor:

Q. Is it your testimony today that excavation is allowed on
11429 Mosier Valley?

A. What she cited [u]s f[o]r, yes.

Q. You’re claiming that in a zone, agricultural, excavation is
allowed?

A. We were loading material that we hauled in there.

Q. Mr. Tucker, I’m talking specifically about excavation. Is it your
testimony that it is allowed on property zone[d] agricultural?

A. We weren’t excavating, we loaded material.

Q. Mr. Tucker, that wasn’t my question. Are you stating that it is
allowed on the property?

19
A. No. Excavation’s not allowed. We haul materials into that site.

When the prosecutor showed Tucker State’s Exhibit 5, he agreed that he saw holes on

the property but nonetheless claimed that the property was not being used for

excavation.

(3) Application

Regarding the 11429 Mosier Valley Road solid-waste charge, Mahoney testified

that on December 7, she saw there—among other things—an accumulation of tires and

wooden crates. During her January 19 visit to the 11429 property—before issuing any

citations—she saw wooden crates and tires, among other things, that had not been

removed and that could not be stored there under the AG zoning. The evidence suffices

to support Tucker’s conviction on this charge because the jury was entitled to believe

Mahoney’s testimony, to consider the notices she sent to Tucker before issuing any

citations, to disbelieve Tucker’s testimony about the notices’ lack of clarity, and to

believe that he had continued to knowingly use the 11429 property to store wooden

crates and spare tires based on his testimony about his pallet deposits and about having

needed the tires but lacking indoor space for them.

Regarding the 11429 Mosier Valley Road zoning-violation charge based on

excavation, Mahoney testified that she had received a complaint about excavation on

the property from an upset neighbor on December 7, and that she visited the property

that day and saw what appeared to be excavation. When she visited the property again

on January 19—before issuing the citation—she saw dirt excavation and took photos

20
of it. She explained “AG” zoning to the jury and explained that excavation was not

considered an agricultural use. The evidence suffices to support Tucker’s conviction on

this charge because the jury was entitled to believe Mahoney’s testimony and to consider

the notices she sent to Tucker before issuing any citations, her January 19 photos

showing excavation, and Tucker’s acknowledgment that excavation was not allowed on

the 11429 property to conclude that he had knowingly excavated on the property

notwithstanding the city’s notices. The jury was likewise entitled to disbelieve Tucker’s

assertion that he had only been loading material on the 11429 property and not

excavating in violation of the AG zoning.

Regarding the 11467 Mosier Valley Road solid-waste and accumulation charges,

Mahoney testified that on December 7, she saw on the property junk vehicles, travel

trailers, old appliances, and tires. She visited the property again on December 27 and

saw no change, and she saw only minimal progress on January 10. During her January

19 visit—before issuing citations—she saw tires, appliances, car parts, and wooden

crates on the property, and her photos were admitted into evidence. She saw no changes

on January 27 and sent additional notices of violation. When she visited again on March

10, she again saw trailers, junk vehicles, appliances, tires, and wooden crates in violation

of the zoning, even though she had explained to Tucker what was allowed on the

property.

The evidence suffices to support Tucker’s convictions on these charges because

the jury was entitled to believe Mahoney’s testimony, to consider the notices she sent

21
to Tucker before issuing any citations, to consider her January 19 photos of the

property, and to consider Tucker’s testimony during cross-examination that he had

removed a boat and some dirt—not items upon which the notices and citations were

based—to conclude that he had knowingly allowed the listed items to accumulate

despite ample opportunity to remove them.

Based on the above, the county criminal court did not err by overruling this issue.

3. Suppression

Tucker complained that the municipal court should have suppressed all the

evidence because Mahoney had unlawfully entered his property multiple times without

a warrant or his consent.

a. Tucker’s motions to suppress

Tucker did not file a motion to suppress in GA081592 (the January 19 citation

for solid waste on the 11467 property) or in GA081589 (the January 19 citation for

excavation on the 11429 property); accordingly, he did not preserve these complaints

for review.22 See Tex. R. App. P. 33.1. He did, however, file suppression motions in

22
Further, during trial, when the prosecutor offered State’s Exhibits 5, 6, and
10—Mahoney’s January 19 photos of the 11429 and 11467 properties—and the
municipal court asked defense counsel if there were any objections, Tucker’s counsel
replied, “No, Your Honor. No objections.” See Thomas v. State, 408 S.W.3d 877, 885–
86 (Tex. Crim. App. 2013) (stating as to suppression and a subsequent statement of “no
objection,” if the appellate court “simply cannot tell [from the record] whether an
abandonment [of the suppression motion] was intended or understood, then, consistent
with prior case law, it should regard the ‘no objection’ statement to be a waiver of the
earlier-preserved error”).

22
GA087599 (the March 10 citation for solid waste on the 11467 property) and in

GA081591 (the January 19 citation for solid waste on the 11429 property) and obtained

a pretrial ruling on them.

In both motions, he complained that Mahoney’s unlawful entry onto his private

property had violated his federal and state constitutional rights; in his motion in

GA087599, he complained specifically about her actions “on or about 1/19/2023,

3/29/2[0]23, 4/17/2023, 5/02/2023, and 5/22/23,” and in his motion in GA081591,

he complained specifically about her actions “on or about 3/29/2[0]23, 04/17/2023,

05/02/2023, 05/22/23[,] and 06/07/2023.” Among other things, in his boilerplate

motions he sought to suppress “[a]ll testimony regarding what the Code Enforcement

Officer observed . . . resulting from the illegal intrusions on the Defendant’s private

property.”

b. Suppression hearing

Mahoney was the only witness during the suppression hearing. During Tucker’s

questioning, she stated that she went onto Tucker’s properties without his permission

or consent on January 19, 2023; March 29, 2023; April 17, 2023; May 2, 2023; and May

22, 2023, but she also stated that she was not aware that she did not have his consent

to be on his property. Mahoney stated that she did not see any “no trespassing” signs

when she was there. She agreed that she had been on his property for code violations

and not to do business. She flatly denied that Tucker “told [her] from the very beginning

that he did not want [her] on his property[.]”

23
During the prosecutor’s examination, Mahoney testified that Tucker’s properties

were commercial, that the gate had been open during business hours during her

January–May 2023 visits, that no employee had asked her to leave during that time, and

that she could see some of the violations from the public right of way. Before visiting,

she would call Tucker to see if he would meet her there, and he did so “a few times”;

on June 13, 2023, however, he had an employee tell her that he did not want her on the

property, and she left immediately. After June 13, 2023, the only time she went on the

properties was when Tucker was with her.

At the hearing’s conclusion, Tucker argued that all the evidence should be

suppressed because Mahoney had unlawfully entered the property. The prosecutor

responded that Mahoney had been allowed to enter a commercial business’s property

during business hours when she did not see any “no trespassing” signs and the gates

were open and that she had left immediately the only time an employee told her that

she was not allowed on the property.

c. State’s response

After the hearing, but presumably before the municipal court signed the orders

denying the motions, the State filed a response, asserting that Tucker had no reasonable

expectation of privacy in the items or conditions seen in plain view outside his business

during operating hours; the search was reasonable pursuant to consent, which

Mahoney, in good faith, believed she had, and she immediately left when consent was

revoked; and there was no testimony that Mahoney entered a portion of the property

24
where Tucker had a reasonable expectation of privacy, such as a back room or

employee-only area.

d. Analysis

Tucker argued that the municipal court had erred by denying his suppression

motions, relying on his interpretation of Mahoney’s testimony.

(1) Standard of review

We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019).

Because the trial judge is the sole trier of fact and judge of the witnesses’ credibility and

the weight to be given their testimony, Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim.

App. 2007), we defer almost totally to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on evaluating credibility and

demeanor, but we review de novo application-of-law-to-fact questions that do not turn

on credibility and demeanor, Martinez, 570 S.W.3d at 281. When—as here—the record

is silent on the reasons for the trial court’s ruling, or when there are no explicit fact

findings and neither party timely requested findings and conclusions from the trial

court, we infer the necessary fact findings that would support the trial court’s ruling if

the evidence, viewed in the light most favorable to the trial court’s ruling, supports

those findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Kelly,

204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006). We then review the trial court’s legal

25
ruling de novo unless the implied fact findings supported by the record are also

dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

(2) Applicable law

The Fourth Amendment protects against unreasonable searches and seizures by

government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. The owner or

operator of a business has an expectation of privacy in commercial property that society

is prepared to consider reasonable, and the expectation exists not only as to traditional

police searches conducted for the gathering of criminal evidence but also as to

administrative inspections designed to enforce regulatory statutes. New York v. Burger,

482 U.S. 691, 699–700, 107 S. Ct. 2636, 2642 (1987); State v. Weaver, 349 S.W.3d 521,

526–27 (Tex. Crim. App. 2011). But commercial premises are not as private as

residential premises, and various investigative procedures can be directed at commercial

premises without the conduct’s constituting a Fourth Amendment search because a

government agent—even though motivated by an investigative purpose—is as free as

the general public to enter premises “open to the public” during business hours and

then to note objects in plain view. Weaver, 349 S.W.3d at 527. For actions to not

constitute a Fourth Amendment search, the state actor must remain in the portion of

the premises that is open to the public. Id.

The State raised consent. Although consent must be positive, it may be given

orally or by action, or it may be shown by circumstantial evidence. Id. at 526. The validity

of an alleged consent to search is a question of fact to be determined from the totality

26
of the circumstances. Id. Under Texas law, the State must prove voluntary consent by

clear and convincing evidence. Id. The clear-and-convincing burden requires the State

to show that the consent given was positive and unequivocal and there must not be

duress or coercion, actual or implied. Id.

The State also raised the plain-view doctrine. This doctrine requires that (1) the

law-enforcement official must lawfully be where the object can be plainly viewed,

(2) the incriminating character of the object in plain view must be immediately apparent

to the official, and (3) the official must have the right to access the object. Keehn v. State,

279 S.W.3d 330, 334 (Tex. Crim. App. 2009); Walter v. State, 28 S.W.3d 538, 541 (Tex.

Crim. App. 2000). In determining whether an officer had a right to be in a certain place,

an essential predicate is that “the officer did not violate the Fourth Amendment in

arriving at the place from which the evidence could be plainly viewed.” Horton v.

California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2308 (1990); Walter, 28 S.W.3d at 541.

(3) Application

Mahoney entered Tucker’s commercial premises without a warrant but testified

that during her visits, she entered the premises during business hours through an open

gate; that until her June 2023 visit, she was not told to leave the premises; and that when

she was told to leave during that June 2023 visit, she did so, and thereafter, she went

on the properties only when Tucker was with her. As the factfinder, the municipal court

was entitled to find Mahoney’s testimony credible, to find that she acted with the same

consent that any member of the public would have had to enter the premises during

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business hours until her June 2023 visit, and thus to determine that Tucker’s rights had

not been violated because no Fourth Amendment search had occurred. The county

criminal court did not err by overruling this issue.

4. Motion in limine

Tucker complained that the municipal court erred by granting the State’s motion

in limine to exclude evidence involving his property at 11415 Mosier Valley Road. A

motion in limine is a preliminary matter and normally preserves nothing for appellate

review. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). For an error to be

preserved as to the subject of a motion in limine, an objection must be made at the time

the subject is raised during trial. Id.

Before the trial began, the State moved to exclude any mention of potential

settlements between the parties and of previously dismissed citations, and Tucker

objected that this went “into the events that are part and parcel of the manner and the

means by which these alleged violations occurred” because “they [the City] made a

mistake.” The municipal court granted the motion in limine as to the previously

dismissed citations but told Tucker’s counsel, “[Y]ou can always approach before you --

if you want to get into any of that, you can always approach before you get into that

and we can talk about it then.” Tucker then objected to the exclusion of “any settlement

discussions [that] do include any actions . . . that [he] made to comply or to remove

items from the property that may have been part of these allegations.” The municipal

court responded, “Well, . . . like I said, when -- if you want to ask about that, and it

28
could get into these subjects, then you can just ask to approach before we start . . . that

line of questioning.”

During trial, Tucker’s counsel never asked to approach the bench during either

witness’s testimony to attempt to admit any evidence about the above subjects, and

Tucker’s counsel made no offers of proof or a formal bill of exception, preserving

nothing to review.23 See id.; see also Tex. R. App. P. 33.1(a) (explaining preservation of

error), 33.2 (setting out procedure to “complain on appeal about a matter that would

not otherwise appear in the record”); Tex. R. Evid. 103(a)(2) (addressing offers of

proof).24 The county criminal court did not err by overruling this issue.

23
During Mahoney’s cross-examination, Tucker’s counsel asked about “other
violations that [she had] alleged to have seen”—in the context of 11415 Mosier Valley
Road—and the prosecutor asked to approach. After a brief, unrecorded conference,
the municipal court stated, “I’ll allow it for those limited purposes, but not going [into]
that other citation.” When cross-examination resumed, Mahoney admitted to a mistake.

During Tucker’s direct testimony, the municipal court sustained the prosecutor’s
objection to leading when Tucker’s counsel asked a series of questions about the
11415 property, and Tucker answered “yes” to each: “[D]id you remove items from
11415?” “[D]id you later find out that those items were not necessary to be removed?”
and “Because there had been a mistake made . . . isn’t that correct?” Tucker’s counsel
did not approach the bench to ask about going into the alleged mistakes, to reframe the
questions to avoid leading, or to proffer any evidence of the alleged mistakes to secure
a ruling.

After the municipal court repeatedly sustained the prosecutor’s objections to
24

Tucker’s counsel’s references during closing arguments that “mistakes were made by
the State,” and instructed the jury to disregard, Tucker’s counsel asked to approach
“because [she] thought [the court] said [they] could approach if [they] got into those
areas.” The municipal court replied that it was too late—evidence was closed, and the

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III. Conclusion

Having found no errors in the county criminal court’s review, we affirm its

judgments.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2025

parties were making closing arguments—and reminded counsel that closing arguments
“are a summation of what was presented during the trial.”

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