Jamison Whitaker v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00357-CR

Jamison Whitaker,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
443rd District Court of Ellis County, Texas
Judge Cynthia Ermatinger, presiding
Trial Court Cause No. 49332CR

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Jamison Whitaker appeals from his conviction for the offense of

terroristic threat. After finding him guilty, the jury assessed punishment at

forty years of confinement in the Texas Department of Criminal Justice—

Institutional Division. In his sole issue, Whitaker contends the trial court

erred in denying his motion to suppress evidence. We affirm.
BACKGROUND

Because he was angry at his coworkers at Liberty Tire Recycling in

Midlothian, Whitaker confronted a supervisor in the parking lot, saying “I got

something for you,” while pointing his finger like a gun. He then went to his

car, picked something up, put it back down, and returned to continue yelling

at the supervisor. The next day, Whitaker showed a coworker, Frank Byers,

an assault rifle he had in the back of his vehicle. Whitaker said he was going

to “shoot the place up” and “kill these Mexicans” and the supervisor.

Byers reported the threat to his superiors, and they called the police.

Although police answered a call regarding a person in possession of a firearm

who was making threats, Whitaker was arrested on outstanding traffic

warrants. They did not search his vehicle. A tow truck was sent to tow

Whitaker’s vehicle for safekeeping, but the towing company took the wrong

vehicle. After Whitaker was removed from the premises, Pedro Garcia, the

regional vice president for Liberty Tire Recycling, took the firearm from

Whitaker’s vehicle and placed it in his office for safekeeping. The police

returned about thirty minutes after arresting Whitaker. Garcia then gave the

rifle to police.

Whitaker was indicted for the offense of terroristic threat. Before trial,

he filed a motion to suppress the rifle. He asserted that Garcia committed

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burglary of a vehicle when he took the rifle and therefore it is inadmissible.

The trial court denied the motion. The jury found Whitaker guilty, and this

appeal ensued.

MOTION TO SUPPRESS

In his sole issue, Whitaker asserts the trial court erred in denying his

motion to suppress because Garcia unlawfully obtained the rifle. He argues

that Garcia committed the offense of burglary of a motor vehicle, making the

evidence inadmissible.

Standard of Review

We review a trial court's ruling on a motion to suppress under a

bifurcated standard of review. State v. Torres, 666 S.W.3d 735, 740 (Tex. Crim.

App. 2023). We afford almost total deference to the trial court's express or

implied determination of historical facts and the trial court's rulings on mixed

questions of law and fact, especially when those determinations are based on

an assessment of credibility and demeanor. Id; State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006). We review pure questions of law, as well as mixed

questions of law and fact that do not turn on an assessment of credibility and

demeanor, on a de novo basis. Torres, 666 S.W.3d at 740-41. Thus, we review

de novo the trial court's application of the law of seizure to the facts. Dixon,

206 S.W.3d at 590. The trial court is the sole factfinder at a suppression

Whitaker v. State Page 3
hearing, and it may believe or disbelieve all or any part of a witness’s

testimony. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

We view the record in the light most favorable to the trial court's

conclusion and reverse only if the trial court's decision is outside the zone of

reasonable disagreement. Dixon, 206 S.W.3d at 590. We will sustain the trial

court's ruling if it is supported by the record and is correct on any theory of law

applicable to the case. Id. We do not view motions to suppress in isolation, but

in the context of the entire record. Douds v. State, 472 S.W.3d 670, 677 (Tex.

Crim. App. 2015); State v. Hopper, 842 S.W.2d 817, 819 (Tex. App.—El Paso

1992, no pet.).

Applicable Law

Texas code of criminal procedure article 38.23(a) provides that evidence

obtained by an officer or other person in violation of law is inadmissible in a

trial of any criminal case. TEX. CODE CRIM. PROC. ANN. art. 38.23(a). A person

commits the offense of burglary of a vehicle if, without the consent of the owner,

he breaks into or enters a vehicle or any part of a vehicle with intent to commit

any felony or theft. TEX. PENAL CODE ANN. § 30.04(a).

Analysis

Whitaker asserts that Garcia committed burglary of a vehicle, making

the evidence inadmissible. It was Whitaker’s burden to establish that Garcia

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took the rifle in violation of law. See Baird v. State, 379 S.W.3d 353, 357 (Tex.

App.—Waco 2012), aff’d, 398 S.W.3d 220 (Tex. Crim. App. 2013). That is, he

had to prove that Garcia, without Whitaker’s consent, entered his vehicle with

intent to deprive Whitaker of property. See TEX. PENAL CODE ANN. §§ 30.04(a);

31.03(a).

Garcia explained that since Whitaker was arrested for an open warrant,

Garcia thought he would be released quickly. Because Whitaker’s vehicle, still

containing the rifle, remained at Liberty Tire, he felt that the security of his

employees was in jeopardy. He felt it was his “job to protect the safety and

security of the people of the Midlothian facility.” He removed the rifle from

Whitaker’s vehicle and put it in his office.

Garcia may have intended to deprive Whitaker of the rifle. However,

when a person who is not an officer or an agent of an officer takes property

that is evidence of a crime, without the effective consent of the owner and with

the intent to turn over the property to an officer, article 38.23 may not be

triggered and the evidence may not have to be excluded. See Jenschke v. State,

147 S.W.3d 398, 402 (Tex. Crim. App. 2004) (en banc). We look to the evidence

to determine the intent of the non-governmental actor. Id. at 402-03; Hansen

v. State, 224 S.W.3d 325, 330 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

Whitaker v. State Page 5
Garcia testified that he removed the rifle from Whitaker’s vehicle to keep

everyone safe. A police officer returned about thirty minutes after Whitaker’s

arrest to ensure that the correct vehicle was towed. Garcia and two coworkers

were trying to decide what to do next when the police officer returned. Garcia

immediately informed the officer that he had the rifle in his possession for

safekeeping. Garcia told the officer he had removed the rifle from the vehicle

because he was afraid Whitaker would return after being released from jail.

Garcia feared for the safety of everyone at the workplace.

Although Garcia had not immediately decided what to do, he formed the

intent to inform the police within approximately thirty minutes. When the

police returned, he immediately explained that he was in possession of the

rifle. We determine that under these facts article 38.23 was not implicated.

See Jenschke, 147 S.W.3d at 402; Hansen, 224 S.W.3d at 330. The trial court

did not err in denying Whitaker’s motion to suppress. See Dixon, 206 S.W.3d

at 590. We overrule Whitaker’s sole issue.

CONCLUSION

Having overruled Whitaker’s sole issue, we affirm the trial court’s

judgment.

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STEVE SMITH
Justice

OPINION DELIVERED and FILED: August 7, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CRPM

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