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Date: 03-21-2020
Case Style:
Ethan Watson Borne v. The State of Texas
Case Number: 09-19-00094-CR
Judge: LEANNE JOHNSON
Court: Court of Appeals
Ninth District of Texas at Beaumont
Plaintiff's Attorney: William J. Delmore III
Defendant's Attorney:
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A grand jury indicted Borne for possession of LSD, a controlled substance,
with intent to deliver. See id. At trial, Department of Public Safety (DPS) Trooper
Christopher Olvera testified that he stopped Borne’s vehicle in The Woodlands after
the trooper’s radar unit showed that Borne was traveling fifty-four miles per hour
(mph) in a forty-five mph zone. Olvera asked Borne for his driver’s license and
noticed that Borne’s hands were “shaking uncontrollably” and Borne tried to hand
the trooper a credit card instead of his driver’s license. Olvera observed a “wad of
money” and a “vape pen”1 inside the vehicle, and after he asked Borne to get out of
his car, Olvera also saw a white powdery substance on the driver’s seat.
According to Trooper Olvera, after Borne refused consent to search his
vehicle, Olvera called for a canine unit. Montgomery County Sheriff’s Deputy David
Everton responded with his canine partner, and the canine alerted to an odor of a
controlled substance. Olvera searched Borne’s car and found LSD in the center
console, the glove compartment, and Borne’s wallet. Olvera found a total of 277
1 Trooper Olvera explained that a “vape pen” is an electronic cigarette that
some people use to smoke THC (tetrahydrocannabinol) oil.
3
LSD abuse units, along with $238 in cash on the floorboard and $361 in cash in
Borne’s wallet. Olvera testified that he also saw a text message appear on Borne’s
cell phone, asking about the availability of “fungus and/or acid,” and Olvera
explained that “fungus” is a street name for psilocybin mushrooms and acid is a
street name for LSD. The State offered into evidence a Controlled Substance
Analysis Laboratory Report of a substance found with Borne, and the report
described the substance as 277 squares of paper containing LSD. Trooper Olvera
testified that the amount of LSD found was “a very large amount[,] . . . way more
than a personal use amount[]” and the Trooper believed that Borne possessed the
drugs with the intent to deliver.
Borne did not dispute the facts at trial. The jury found Borne guilty, and after
a hearing on punishment, the trial court sentenced Borne to ten years’ imprisonment
probated for ten years.
Issues
Appellant summarizes his issues on appeal as follows:
I submit this appeal to this Honorable Court as the law in which the trial
court has jurisdiction over me, a man, was not proven on the record, I
was denied due process of law, a right protected by the Texas and
United States Constitutions, and other constitutionally protected rights
that were violated.
4
Standard of Review
Borne appeared pro se at trial and on appeal. A pro se litigant must comply
with the rules of evidence and procedure and is not to be granted any special
treatment because he has asserted his pro se rights. Johnson v. State, 760 S.W.2d
277, 279 (Tex. Crim. App. 1988); Griffis v. State, 441 S.W.3d 599, 612 (Tex. App.—
San Antonio 2014, pet. ref’d). Although we construe pro se arguments “with
patience and liberality[,]” Borne, as a pro se appellant, is not entitled to any special
treatment and is held to the same standards as licensed attorneys. See Grubbs v. State,
440 S.W.3d 130, 133 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); Barnes
v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding).
To preserve error for review, a litigant must timely object to the alleged error
and state the grounds for the ruling sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds
were apparent from the context of the objection. See Tex. R. App. P. 33.1(a)(1)(A);
Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). The purposes of requiring
a timely, specific objection are (1) to inform the judge of the basis of the objection
and give him the chance to make a ruling on it, and (2) to give opposing counsel the
chance to remove the objection or provide other testimony. Garza v. State, 126
5
S.W.3d 79, 82 (Tex. Crim. App. 2004) (citing Zillender v. State, 557 S.W.2d 515,
517 (Tex. Crim. App. 1977)).
An appellate brief must state all issues presented for review clearly and
concisely and include appropriate citations to authorities and to the record. See Tex.
R. App. P. 38.1(f), (i). Borne’s brief raises sub-issues within each main issue. When
an appellant raises multiple issues in a single point of error, the point of error is
multifarious, and an appellate court may decline to address those matters. See Mays
v. State, 318 S.W.3d 368, 390 n.82 (Tex. Crim. App. 2010) (citing Wood v. State, 18
S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). However, we may address the issue
in the interest of justice if we can determine, with reasonable certainty, the alleged
error about which a complaint is made. See Davidson v. State, 249 S.W.3d 709, 717
n.2 (Tex. App.—Austin 2008, pet. ref’d); Marcum v. State, 983 S.W.2d 762, 767 n.1
(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); Barnes v. State, 634 S.W.2d 25,
26 (Tex. App.—Beaumont 1982, no pet.).
Jurisdiction
Borne argues that the State did not prove that the trial court had “subject
matter jurisdiction” over him for numerous reasons. Although Borne presents a
multifarious issue, in the interest of justice we address arguments that can be
sufficiently identified. See Barnes, 634 S.W.2d at 26.
6
“Consent” and “Proven on the Record”
Borne argues that he did not consent to the trial court’s jurisdiction over him
and jurisdiction was not proven on the record. Borne presents no legal authority that
his consent was required for the district court to have jurisdiction over him in a
criminal proceeding, nor does he explain his “proven on the record” complaint. See
Tex. R. App. P. 38.1(i).
The Texas Constitution invests state district courts with “exclusive, appellate,
and original jurisdiction of all actions, proceedings, and remedies[.]” See Tex. Const.
art. V, § 8. “The presentment of an indictment or information to a court invests the
court with jurisdiction of the cause.” Id. § 12. A grand jury indicted Borne for an
offense under section 481.1121 of the Health and Safety Code. See Tex. Health &
Safety Code Ann. § 481.1121. The presentment of the grand jury’s indictment
invested the district court with subject matter jurisdiction over the case. See Tex.
Const. art. V, § 12; see also Thoman v. State, No. 07-11-0278-CR, 2013 Tex. App.
LEXIS 4413, at **8-9 (Tex. App.—Amarillo Apr. 4, 2013, pet. ref’d) (mem. op.,
not designated for publication) (rejecting a similar challenge to the district court’s
jurisdiction where “the clerk’s record contains an information regular on its face . . .
[and] [n]othing in the clerk’s record suggests the trial court lacked personal or
subject matter jurisdiction[.]”).We find Borne’s argument unavailing.
7
Person
Borne argued that the trial court lacked jurisdiction over him because he was
a “living breathing, sovereign, flesh and blood man” and not a “Legal Fiction
Person[.]” Borne also raises this argument on appeal. Borne filed a “Non-Negotiable
Notice of Acceptance” and a “Notice of Dishonor” with the trial court that state:
I, a man called Ethan Watson Borne, reserve all my rights without
prejudice UCC 1-103 & 1-308. I am a moral man and a Texas
Citizen/National and not a citizen, resident, person, individual or
inhabitant of the corporate United States. I am not a creature of THE
STATE OF TEXAS, THE UNITED STATES, or any other
government.
Borne also asserted that “The State of Texas is a Fiction” unless the trial court and
district attorney could prove otherwise and that he is “a Texas National[.]” In a
“Judicial Notice” filed with the trial court, Borne argued that
The “Texas Control Substances Act,” which is located in the Texas
Health and Safety Code states that statute 481.1121 only applies to a
person which is defined as “legal entities” and, as I have stated many
times, I am in fact a living man and NOT a legal entity[.]
During the charge conference at trial, Borne requested that a definition of “person”
be added to the jury charge. The court added the definition of “person” that is
8
contained in section 481.002 of the Controlled Substances Act to the charge.
2 Borne
agreed on the record to the additional instruction.
The definition of “person” under the Health and Safety Code includes
individuals. Id.; State v. Morello, 547 S.W.3d 881, 886 (Tex. 2018). Because there
is no statutory definition excluding individuals from the definition of person, we
interpret the term as it applies in common usage—to include individuals. See
Morello, 547 S.W.3d at 886. Under the plain language of the Controlled Substances
Act, an individual may be charged with a felony for manufacture or delivery of a
controlled substance. See Tex. Health & Safety Code Ann. § 481.1121; cf. Morello,
547 S.W.3d at 886. Therefore, Borne’s argument lacks merit.
UCC
We understand Borne to argue that, because he signed documents by writing
“w/o prej. UCC 1-308[,]” the trial court lacked jurisdiction over him and the lack of
jurisdiction deprived him of due process. Borne filed a document with the trial court
styled “Response to and Affidavit of Complaint[,]” which stated, in relevant part:
The signature on the driver’s license is below the words that I wrote in:
“Without Prejudice, U.C.C. 1-308.” (See Exhibit 1) I signed it this way
because I was compelled to get the driver’s license by The State of
Texas against my will and I wanted to give notice and reserve my right
2 “‘Person’ means an individual, corporation, government, business trust,
estate, trust, partnership, association, or any other legal entity.” See Tex. Health &
Safety Code Ann. § 481.002(33).
9
to travel freely and contract with who or whom I choose. (Article 1 Sec.
16 Bill of Rights, The Texas Constitution).
Borne also signed other documents he filed in this case “w/o prejudice UCC 1-
308[.]”
The Uniform Commercial Code (UCC) applies to commercial transactions
and does not apply to criminal proceedings. See Barcroft v. State, 881 S.W.2d 838,
840 (Tex. App.—Tyler 1994, no pet.) (citing Tex. Bus. & Com. Code Ann. § 1.102).
Borne’s UCC argument is unavailing.
“Enacting Clause”
We understand Borne to argue on appeal that section 481.1121 of the Texas
Health and Safety Code does not have an “enacting clause,” which he argues is
“mandated” by the Texas Constitution. As a result, he concludes the trial court
lacked jurisdiction. Borne filed a motion to dismiss for lack of subject-matter
jurisdiction in the trial court making this same argument.
Borne has cited no authority for his argument that the requirement of an
enacting clause is a jurisdictional matter. See Tex. R. App. P. 38.1(i). The Texas
Constitution provides that “The enacting clause of all laws shall be: ‘Be it enacted
by the Legislature of the State of Texas.’” Tex. Const., art. III, § 29. The version of
section 481.1121 under which Borne was charged was enacted under Senate Bill
1969, Act of May 11, 2009, 81st Leg., R.S., ch. 87, § 25.096, 2009 Tex. Gen. Laws
10
363, 363-64. The opening words of Senate Bill 1969 read “Be it enacted by the
Legislature of the State of Texas[.]” Id. at 2009 Tex. Gen. Laws 208. Thus, the
section at issue was enacted by the Texas Legislature and contains an enacting
clause. Borne’s argument is overruled.
“Common Law Court”
Borne argues on appeal that:
I brought a complaint against [the trial court judge] and [the prosecutor]
in a superior court, a common law court. [The trial court judge] and [the
prosecutor] were given proper due process by service of that complaint
and notice of a common law trial [] to be held on February 16, 2019.
[The trial court judge] or [the prosecutor] did not respond to the
complaint or appear for trial. A common law jury found that they had
violated my constitutionally protected rights, among other things, and
issued an Injunctive Relief in the Nature of a Writ of Mandamus[]. That
Injunctive Relief was filed in this matter and served upon [the trial court
judge] and [the prosecutor].
According to Borne, the “common law court” found him innocent of all criminal
charges, which the trial court “ignored[.]”
Before trial, Borne filed a document styled “Injunctive Relief in the Nature of
a Writ of Mandamus” that states, in relevant part:
The Texas People through their Jural Assembly and common law court
have determined that [the trial court judge], [the district attorney], and
all other actors and officers of the 221st alleged judicial district court,
Conroe, Texas, lack standing and capacity to sue any Texas man or
woman. This court finds Ethan Watson; Borne, innocent of all criminal
charges.
11
In another document in the clerk’s record Borne alleges that a jury of the “Texas
Jural Assembly operating under the common law and holding common law
court/trials” had ordered the case dismissed for lack of jurisdiction for “lack of due
process of law[] and lack of an injured party.”
At trial Borne referenced the “common law court” in support of his
jurisdictional arguments. Assuming without deciding that Borne’s argument on
appeal comports with his argument in the trial court, the record lacks authority or to
support the jurisdiction—if any—of the so-called “common law court.” See Tex. R.
App. P. 38.1(i). Borne has cited no legal authority regarding the jurisdiction of a
“Texas Jural Assembly,” nor are we aware of any. See id.
“Sovereign Citizen”
Borne’s brief also includes arguments claiming he has rights as a “sovereign
citizen” as a “white man” and under the First Amendment and not a “14th
Amendment citizen created by Congress who [is] given privileges and immunities
instead of constitutionally protected rights.” At trial, Borne denied that he was
making a “sovereign citizen” argument. When an appellant’s trial objection does not
comport with his argument on appeal, the appellant has not preserved the issue. See
Ford v. State, 488 S.W.3d 350, 351 (Tex. App.—Beaumont 2016, no pet.) (citing
Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)); Shelling v. State,
12
52 S.W.3d 213, 218 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (citing Coffey
v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990) (a point of error that does not
comport with the trial objection presents nothing for review)).
That said, even if Borne had preserved a “sovereign citizen” argument,
Borne’s alleged sovereign-citizen status does not mean he should be allowed to
violate state laws without consequence, nor does it exempt Borne from the
jurisdiction of the Texas courts. See, e.g., United States v. Benabe, 654 F.3d 753,
767 (7th Cir. 2011), cert. denied, 565 U.S. 1226 (2012) (providing “[r]egardless of
an individual’s claimed status of descent, be it as a ‘sovereign citizen,’ a ‘securedparty creditor,’ or a ‘flesh-and-blood human being,’ that person is not beyond the
jurisdiction of the courts[]”); United States v. White, 480 F. App’x 193, 194 (4th Cir.
2012) (providing “[n]either the citizenship nor the heritage of a defendant constitutes
a key ingredient to a [] court’s jurisdiction in criminal prosecutions[]”); United States
v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (noting the sovereign citizen
defense has “no conceivable validity in American law[]”); Berman v. Stephens, No.
4:14-CV-860-A, 2015 U.S. Dist. LEXIS 75506, at *5 (N.D. Tex. June 10, 2015)
(concluding that an inmate’s “reliance on the UCC or a so-called ‘sovereign citizen’
theory that he is exempt from prosecution and beyond the jurisdiction of the state or
federal courts is frivolous”) (collecting cases)).
13
Similarly, our sister state courts have unanimously rejected “sovereign
citizen” arguments. See Meyer v. State, No. 06-19-00066-CR, 2019 Tex. App.
LEXIS 8231, at **1-2 (Tex. App.—Texarkana Sept. 11, 2019, no pet.) (mem. op.,
not designated for publication); Ex parte Blakely, No. 02-17-00393-CR, 2018 Tex.
App. LEXIS 1779, at *6 (Tex. App.—Fort Worth Mar. 8, 2018, pet. ref’d) (mem.
op., not designated for publication); Barcroft v. Walton, No. 02-16-00110-CV, 2017
Tex. App. LEXIS 8541, at *11 n.10 (Tex. App.—Fort Worth Sept. 7, 2017, no pet.)
(mem. op., not designated for publication); Lewis v. State, 532 S.W.3d 423, 430-31
(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Barcroft v. County of Fannin,
118 S.W.3d 922, 925-26 (Tex. App.—Texarkana 2003, pet. denied); Alvarez v.
State, No. 03-02-00262-CR, 2003 Tex. App. LEXIS 7910, at **11-14 (Tex. App.—
Austin Sept. 11, 2003, no pet.) (mem. op., not designated for publication). We agree
with these courts, and we reject Borne’s “sovereign citizen” arguments.
We overrule Borne’s first issue challenging the jurisdiction of the district
court.
Right of Self-Representation
Borne’s second issue on appeal argues that he was denied due process
because, in appointing stand-by counsel to assist him, the trial court denied him his
right to represent himself. According to Borne, the trial court used its power “as a
14
tool . . . against [Borne], and willfully and intentionally violated [his] constitutionally
protected rights and denied [him] due process of law.”3
The Sixth Amendment guarantees a defendant the right to counsel. See
Strickland v. Washington, 466 U.S. 668, 685 (1984); see generally Gideon v.
Wainwright, 372 U.S. 335 (1963). The Sixth Amendment also protects the right to
self-representation. See Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App.
2008) (citing Faretta v. California, 422 U.S. 806, 818 (1975)). And, the Texas
Constitution providesthat a defendant “shall have the right of being heard by himself
or counsel, or both[.]” Tex. Const. art. I, § 10. That said, the Supreme Court
expressly held in Faretta that a state may—even over the defendant’s objection—
appoint standby counsel to assist the defendant. See Faretta, 422 U.S. at 834 n.46.
Standby counsel is available to advise a pro se defendant, but the defendant is not
required to seek the assistance of standby counsel. See id.
The record reflects that before trial, the trial court held a Faretta hearing and
determined that Borne knowingly and voluntarily wished to proceed pro se of his
3 Borne does not argue that he was not properly admonished of the risks of
self-representation as required by Faretta. See Hatten v. State, 71 S.W.3d 332, 333
(Tex. Crim. App. 2002) (citing Faretta v. California, 422 U.S. 806, 835-36 (1975))
(“When a criminal defendant chooses to waive his right to counsel and represent
himself, the waiver should be made ‘knowingly and intelligently’ and he should be
warned of the ‘dangers and disadvantages’ accompanying such waiver.”).
15
own free will, and the court appointed standby counsel for Borne. See id. at 835
(requiring a hearing to determine that the defendant’s decision to waive counsel is
made knowingly and voluntarily, that the defendant was made aware of the dangers
and disadvantages of self-representation, and to establish on the record that the
defendant knows what he is doing and his choice is made with eyes open). At trial,
the following exchange occurred:
THE COURT: . . . I have appointed him standby counsel.
[State’s counsel]: I will try to find him. I’m not sure where he went.
BORNE: Who is he going to represent?
THE COURT: He will sit by you at your table and if you have any
questions, you can ask him. And if you don’t, then he will remain silent.
BORNE: So he is not going to speak at all for me?
THE COURT: No. Unless you want him to. If you have a question
during the[] trial, then that’s what standby counsel does.
BORNE: I am just putting on the record that I don’t want him to speak
for me at all.
THE COURT: That’s fine. You don’t have to say that. . . .
. . . you get to present your case to the jury. However, [standby
counsel] has been appointed by the Court due to your age and your lack
of knowledge of the Penal Code and the Code of Criminal Procedure.
Borne acknowledged on the record that no one was forcing him to represent
himself and it was his decision. Throughout the trial Borne asked the court to answer
16
legal or procedural questions, and the trial court repeatedly instructed Borne to direct
his questions to his standby counsel. Borne acknowledges in his appellate brief that
the only participation by standby counsel was to accept discovery from the State and
to request that the court remove the jury if Borne asked standby counsel a question.
As we have explained, the appointment of standby counsel over a defendant’s
objection does not violate the Sixth Amendment. See id. at 834 n.46. Borne’s brief
does not cite contrary authority, nor does it explain how any of his substantial rights
were affected by standby counsel’s presence at trial. See Tex. R. App. P. 38.1(i),
44.2(b). Although Borne complains that the trial court held him to the same
standards as an attorney, a criminal defendant who waives his right to counsel and
chooses to proceed pro se is held to the same standards as an attorney who would
represent him. See Johnson, 760 S.W.2d at 279 (“The [pro se] defendant should be
aware that there are technical rules of evidence and procedure, and he will not be
granted any special consideration solely because he asserted his pro se rights.”).
Accordingly, we find no error in the trial court’s appointment of standby counsel,
and we overrule Borne’s second issue.4
4 Borne’s brief also asserts that his standby counsel was appointed subsequent
to an ex parte discussion between the trial court and the prosecutor. Because Borne
failed to raise this objection at trial, he has failed to preserve error thereon. See Tex.
R. App. P. 33.1(a).
17
Other Alleged Constitutional Deprivations
In a multifarious issue, Borne argues that various errors by the trial court
deprived him of his constitutional rights. In the interest of justice, we address the
arguments where we can determine, with reasonable certainty, the alleged error
about which Borne complains. See Davidson, 249 S.W.3d at 717 n.2; Marcum, 983
S.W.2d at 767 n.1; Barnes, 634 S.W.2d at 26.
Injured Party
We understand Borne’s brief to argue that the judgment against him is void in
part because the State failed to identify an “injured party[.]” In various documents
filed with the trial court, Borne challenged the trial court’s jurisdiction arguing that
there was no evidence of an injured party. The statute under which Borne was
charged and convicted states that “a person commits an offense if the person
knowingly manufactures, delivers, or possesses with intent to deliver a controlled
substance listed in Penalty Group 1-A.” See Tex. Health & Safety Code Ann.
§ 481.1121(a). Nothing in the statute’s plain wording requires proof of an injured
party. See id.
The Court of Criminal Appeals has explained that there are three categories
of offenses based on the gravamen of the offense: “result of conduct,” “nature of
conduct,” or “circumstances of conduct.” See Robinson v. State, 466 S.W.3d 166,
18
170 (Tex. Crim. App. 2015). “Nature-of-conduct offenses are defined by the act or
conduct that is punished, regardless of any result that might occur.” Id. Possession
of a controlled substance with intent to deliver is a “nature of conduct” offense. See
Peek v. State, 494 S.W.3d 156, 162 (Tex. App.—Eastland 2015, pet. ref’d).
Therefore, the gravamen of the offense of possession with intent to deliver is not the
result or harm of the offense. See Robinson, 466 S.W.3d at 170.
Borne cites no legal authority for his contention that the State was required to
identify an “injured party” in its indictment or that it had to present evidence of an
injured party at trial, nor are we aware of any. See Tex. R. App. P. 38.1(i).5 We find
no merit to this argument.
Admission of Evidence
Borne argues on appeal that he was “denied the opportunity ‘to offer proof’”
because the trial court denied admission of certain “certified copies of a public
record[.]” According to Borne, the result of the court’s denial of his documents
5 We note that the indictment meets the requirements of the Texas Code of
Criminal Procedure and it includes, among other things, an allegation that the
offense occurred “Against the Peace and Dignity of the State.” See Tex. Code Crim.
P. Ann. arts. 21.02, 21.21. See generally Malinda L. Seymore, Against the Peace
and Dignity of the State: Spousal Violence and Spousal Privilege, 2 Tex. Wesleyan
L. Rev. 239, 239 (Fall 1995) (explaining that the phrase “against the peace and
dignity of the State” recognizes that “crimes are not purely personal matters between
a defendant and a victim, but are offenses against society as a whole[]”).
19
meant that he could not defend himself at trial and he was denied his First
Amendment right to be heard.
At trial, Borne offered several documents, but the trial court did not allow the
documents to be submitted to the jury and sustained the State’s objections to the
exhibits, which were all marked as Defense Exhibit 1 for appellate purposes only.
The documents included documents that Borne had filed pro se, including
documents styled as:
• Notice of Defects
• Notice of Trespass and Notice to Cease and Desist
• Injunctive Relief in the Nature of a Writ of Mandamus
• Affidavit of Truth
• Texas Jural Assembly, Notice of Trial-by-jury
• Notice and Demand for Anti-Bribery and Foreign Agents
Registration Statements
• Notice and Demand to Dismiss Cause No. 18-09-12373CR for
Lack of Subject Matter Jurisdiction
• Notice of Dishonor
• Notice of Default
• Non-Negotiable Notice of Acceptance
• Notice, Inquiry and Demand
• Final Notice of Termination
• Plea Offer/Response
• Notice of Claim to Private Law in the Nature of an Affidavit of
Truth
• Judicial Notice
The State objected to admission of the documents based on relevance and hearsay.
The court sustained the State’s objections.
20
Borne’s brief fails to explain how the trial court erred in sustaining the
objections. Borne does not explain why the documents he offered were relevant to
his defense or were not hearsay or whether there was an exception to the rule against
hearsay. See Tex. R. Evid. 401, 801-04. Borne cited no legal authority to support his
argument that the trial court’s exclusion of evidence under the Texas Rules of
Evidence constitutes a violation of his First Amendment rights. See Tex. R. App. P.
38.1(i). We therefore conclude that Borne’s argument about the exclusion of
evidence lacks merit.
“Fruit of the Poisonous Tree”
According to Borne, evidence seized from his vehicle was inadmissible “fruit
of the poisonous tree” because it was obtained without a search warrant. Borne did
not make this objection at trial, nor did he move to suppress the evidence. Borne
failed to preserve error on this issue. See Tex. R. App. P. 33.1(a); Sample v. State,
405 S.W.3d 295, 300-01 (Tex. App.—Fort Worth 2013, pet. ref’d) (citing Pena v.
State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011)). Even assuming Borne had
preserved this complaint, there are several exceptions to the warrant requirement,
including consent, exigent circumstances, the automobile exception, search incident
to arrest, the special-needs doctrine, and the plain-view exception. State v. Villarreal,
475 S.W.3d 784, 798 (Tex. Crim. App. 2014); Keehn v. State, 279 S.W.3d 330, 334
21
(Tex. Crim. App. 2009). The State contends that the “automobile exception” would
apply. We agree. Under the “automobile exception,” a search warrant is not required
to search an automobile when an officer has “probable cause” to believe the
automobile contains contraband. See Maryland v. Dyson, 527 U.S. 465, 467 (1999);
Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008). Borne’s “fruit of the
poisonous tree” argument is meritless. We overrule Borne’s complaint that his
“constitutionally protected rights were violated[.]”6
Outcome: We overrule Borne’s issues and affirm the judgment of the trial court.
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: