Alphonson Damon Malone v. State ( 2014 )


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  •                                                              ACCEPTED
    01-14-00054-CR
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    12/30/2014 10:16:38 AM
    CHRISTOPHER PRINE
    CLERK
    CASE NO. 01-14-00054-CR
    FILED IN
    1st COURT OF APPEALS
    IN THE COURT OF APPEALS         HOUSTON, TEXAS
    FIRST SUPREME JUDICIAL DISTRICT12/30/2014 10:16:38 AM
    HOUSTON, TEXAS         CHRISTOPHER A. PRINE
    Clerk
    ALPHONSON DAMON MALONE,
    APPELLANT
    V.
    THE STATE OF TEXAS,
    APPELLEE
    On Appeal from the County Criminal Court
    At Law No. 8
    of Harris County, Texas
    Cause No. 1899612
    APPELLANT’S REPLY BRIEF
    GARY TABAKMAN
    TBA No. 24076065
    712 MAIN ST., Ste. 2400
    HOUSTON, TEXAS 77002
    TELEPHONE: (713) 228-8500
    FACSIMILE: (713) 228-0034
    EMAIL: Gary@BSDLawfirm.com
    COUNSEL FOR APPELLANT,
    ALPHONSON DAMON MALONE
    IDENTITY OF PARTIES AND COUNSEL
    Pursuant to TEX. R. APP. P. 38.1(a), the following is a list of all parties to the
    trial court’s judgment, and respective trial and appellate counsel:
    Presiding Judge
    The Honorable Jay Karahan
    Harris County Criminal Court at Law No.8
    1201 Franklin, 9th Floor
    Houston, Harris County, Texas 77002
    Attorneys for Appellee (State of Texas)
    Ryan Trask               (at trial)
    Alan Curry               (on appeal)
    Harris County District Attorney’s Office
    1201 Franklin
    Houston, Texas 77002
    Attorneys for Appellant
    Gary Tabakman           (at trial and on appeal)
    712 Main, Ste. 2400
    Houston, Texas 77002
    Appellant
    Alphonson Damon Malone
    ii
    TABLE OF CONTENTS
    PAGE
    IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
    TABLE OF CONTENTS ......................................................................................... iii
    INDEX OF AUTHORITIES.....................................................................................iv
    PRELIMINARY STATEMENT ............................................................................ vii
    EXPLANATION OF SYMBOLS .......................................................................... vii
    REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER ONE ..................... 1
    REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER TWO .................... 1
    REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER THREE................. 1
    CERTIFICATE OF COMPLIANCE .......................................................................11
    CERTIFICATE OF SERVICE ................................................................................11
    iii
    INDEX OF AUTHORITIES
    CASES                                                                                                       PAGE
    Balentine v. State,
    
    71 S.W.3d 763
    (Tex. Crim. App. 2002) .................................................................3,4
    Carmouche v. State,
    
    10 S.W.3d 323
    (Tex. Crim. App. 2000) ....................................................................8
    Dancy v. State,
    
    728 S.W.2d 772
    (Tex.Crim.App.1987). ....................................................................5
    Davis v. State,
    
    947 S.W.2d 240
    (Tex.Crim.App.1997) .....................................................................5
    Dowthitt v. State,
    
    931 S.W.2d 244
    , (Tex. Crim. App.1996 ) .................................................................5
    Florida v. Bostick,
    
    501 U.S. 429
    , 438, 
    111 S. Ct. 2382
    , 
    115 L. Ed. 2d 389
    (1991)....................................4
    Josey v. 
    State, 981 S.W.2d at 839
    (Tex. App.- Houston [14th Dist] 1998, pet, ref’d. ...................2,4
    Morris v. State,
    
    50 S.W.3d 89
    , 97 (Tex. App.- Fort Worth 2001, no pet.) ......................................3,4
    Rhode Island v. Innis,
    
    446 U.S. 291
    (1980) ....................................................................................................9
    Rhodes v. State,
    
    945 S.W.2d 115
    (Tex. Crim. App. 1997). .................................................................2
    Ramirez v. State,
    
    105 S.W.3d 730
    (Tex.App.-Austin 2003, no pet.) ........................................... 4,5,6,7
    Roquemore v. State,
    
    60 S.W.3d 862
    , 868 (Tex.Crim.App.2001) ..............................................................9
    iv
    Stansbury v. California,
    
    511 U.S. 318
    (1994) .............................................................................................4,5,6
    State v. Moore,
    S.W.3d 383 (Tex.App.-Austin 2000, no pet.) .........................................................4,7
    State v. Ortiz,
    
    382 S.W.3d 367
    (Tex. Crim. App. 2012) ............................................................4,8,9
    Terry v. Ohio,
    
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968) ....................................................5
    Ussery v. State,
    
    651 S.W.2d 767
    (Tex. Crim. App.1983) ...................................................................5
    Wong Sun v. United States,
    
    371 U.S. 471
    (1963) .................................................................................................10
    v
    PRELIMINARY STATEMENT
    This appeal stems from Alphonson Damon Malone’s, Appellant, denial of
    motion to suppress evidence after an evidentiary hearing held on December 6,
    2013. On October 2, 2014, Appellant filed his brief complaining in three (3) issues
    that the Trial Court erred in denying Appellant’s motion to suppress evidence
    seized following a custodial interrogation conducted without Miranda warnings;
    that the warrantless detention and arrest of appellant was unreasonable and in
    violation of the Fourth Amendment of The Unites States Constitution; and that the
    evidence seized following the warrantless detention of Appellant is inadmissible
    pursuant to Article 38.23(a) V.A.C.C.P. The State accordingly filed its brief in
    response. Pursuant to Texas Rule of Appellate Procedure 38.3, Appellant files his
    brief in reply.
    EXPLANATION OF SYMBOLS
    “CR” will be used to indicate the clerk’s record.
    “RR” will be used to reference the reporter’s record from the hearing on the
    motion to suppress evidence.
    “SB” will be used to reference State’s Brief.
    “AB” will be used to reference Appellant’s Brief.
    vi
    REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER ONE
    Appellant’s Issue Number One Reads:
    The Trial Court Erred In Denying Appellant’s Motion To
    Suppress Evidence Seized Following A Custodial
    Interrogation Conducted Without Miranda Warnings.
    REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER TWO
    Appellant’s Issue Number Two Reads:
    The Warrantless Detention And Arrest Of Appellant Was
    Unreasonable And In Violation Of The Fourth Amendment
    Of The Unites States Constitution.
    REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER THREE
    Appellant’s Issue Number Three Reads:
    The Evidence Seized Following The Warrantless Detention
    Of Appellant Is Inadmissible Pursuant To Article 38.23(a)
    V.A.C.C.P.
    In his opening Brief, Malone points out that he was the passenger in the
    vehicle driven by his friend who was eventually released by police. That fact will
    never change as we proceed to evaluate Appellee’s brief. Appellant will address
    the facts of the case through the sequence of events on June 1, 2013.
    The State focuses their response on whether the handcuffing of Appellant
    was an investigative detention or arrest, and if Appellant was the subject of a
    custodial interrogation. Although we may agree that the line between the two is not
    1
    always clear, the facts here lean heavily towards an arrest as opposed to a simple
    detention. As discussed in Rhodes v. State, each citizen-police encounter must be
    factually evaluated in its own terms. 
    945 S.W.2d 115
    , 118 (Tex. Crim. App. 1997).
    That is exactly what should be done here.
    The initial interaction between Officer Sutton and Alphonson Malone is a
    show of authority. Officer Sutton pulled the driver over and handcuffed both the
    driver and passenger immediately without asking a single question. (2RR-42).
    Despite the fact that the State claims Officer Sutton feared for his safety, there was
    in fact no testimony that Officer Sutton actually feared for his safety. (SB-9).
    What Officer Sutton testified to was that in different types of scenarios, such as
    officer safety, handcuffing an individual would be appropriate. (2RR-12). Another
    reason the State believes handcuffing was appropriate was that Officer Sutton saw
    what he believed to be “loose” marijuana on the driver who was not arrested.
    (2RR-13). However, there was no physical evidence recovered as to “loose”
    marijuana or “shake” that Officer Sutton supposedly saw. (2RR-30-31).
    Handcuffing Appellant was unreasonable and as the trial court properly found, led
    to his arrest prior to questioning. (Supp. CR 4).
    Significantly, with respect to the issue of arrest, the State focuses on cases
    that are very distinguishable from the matter at hand. In Josey v. State, officers
    observed what they believed to be criminal activity and the appellant was detained
    2
    after the driver of the vehicle was arrested on separate 
    charges. 981 S.W.2d at 839
    (Tex. App.- Houston [14th Dist] 1998, pet, ref’d.) The appellant was detained after
    an inventory search of the vehicle revealed a plastic bag of money consistent with
    drug transactions. 
    Id. Furthermore, the
    vehicle actually belonged to the appellant,
    not the driver, and a crowd of five to ten people gathered at the corner of a nearby
    intersection which truly concerned officers' about their safety and maintaining the
    status quo. 
    Id. at 840.
    The appellant was then handcuffed and placed on the other
    side of the patrol car while police investigated further criminal activity. 
    Id. In Morris
    v. State, officers working undercover observed a reverse drug
    transaction where the passenger in the vehicle was suspected of being involved. 
    50 S.W.3d 89
    , 97 (Tex. App. - Fort Worth 2001, no pet.). The court addressed the
    handcuffing and apprehension of the passenger as a temporary investigatory
    detention due to her proximity to the transaction, her connection to one of the
    individuals involved in the drug transaction, and her connection to a vehicle used
    in the drug transaction. 
    Id. In Balentine
    v. State, an officer who was working alone stopped a person
    walking briskly away from the scene of a 
    crime. 71 S.W.3d at 767
    (Tex. Crim.
    App. 2002). The officer conducted a Terry search of the person, but did not find
    any weapons. 
    Id. The officer
    suspected that the appellant may have been involved
    in the reported gunfire and he escorted the appellant to the back seat of his patrol
    3
    car for further questioning without handcuffing him. 
    Id. After the
    initial search, the
    officer asked the suspect a series of questions and received contradictory
    answers. 
    Id. Based on
    the suspect's contradictory answers, the officer placed the
    suspect in handcuffs and conducted a second frisk of the individual and found a
    bullet (which was later used to link the suspect to the crime). 
    Id. at 768.
    The
    suspect's contradictory answers gave the officer “heightened” suspicions, which
    justified the second frisk. 
    Id. at 769–70.
    There are no circumstances in this case that are remotely similar to that of
    Josey, Morris and Balentine. However, a closer look at the facts in this case
    reveals the encounter between Officer Sutton and Appellant was more like Ramirez
    v. State, 
    105 S.W.3d 730
    (Tex.App.-Austin 2003, no pet.),; State v. Moore S.W.3d
    383, 386 (Tex.App.-Austin 2000, no pet.); and State v. Ortiz, 
    382 S.W.3d 367
    (Tex. Crim. App. 2012).
    A more thorough review of “arrest” and “custody” cases is needed to
    properly evaluate this case. A person is “in custody” only if, under the
    circumstances, a reasonable person would believe that his freedom of movement
    was restrained to the degree associated with a formal arrest. Stansbury v.
    California, 
    511 U.S. 318
    , 322, 
    114 S. Ct. 1526
    , 
    128 L. Ed. 2d 293
    (1994). The
    “reasonable person” standard presupposes an innocent person. Florida v. Bostick,
    
    501 U.S. 429
    , 438, 
    111 S. Ct. 2382
    , 
    115 L. Ed. 2d 389
    (1991). In determining
    4
    whether custody exists, the subjective intent of law-enforcement officials to arrest
    is irrelevant, unless the intent is communicated or manifested to the suspect in
    some way. 
    Stansbury, 511 U.S. at 322
    , 
    114 S. Ct. 1526
    ; see also 
    Dowthitt, 931 S.W.2d at 254
    ; Dancy v. State, 
    728 S.W.2d 772
    , 778 (Tex.Crim.App.1987).
    On the other hand, a person held for investigative detention is not in
    “custody.” Dowthitt v. State, 
    931 S.W.2d 244
    , 255 (Tex. Crim. App.1996 ). An
    investigative detention involves detaining a person reasonably suspected of
    criminal activity in order to determine his identity or to momentarily maintain the
    status quo in order to garner more information. Terry v. Ohio, 
    392 U.S. 1
    , 20–21,
    
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968). This sort of “Terry stop” must be a
    temporary detention, must last no longer than necessary to effectuate the purpose
    of the stop, must involve an actual investigation, and must use the least intrusive
    means possible. See Davis v. State, 
    947 S.W.2d 240
    , 244–45 (Tex.Crim.App.1997)
    (holding that detention may continue only so long as “articulable facts” support
    reasonable suspicion that suspect was engaged in criminal activity).
    Furthermore, an interrogation may begin as noncustodial; police conduct
    during the encounter may transform a consensual exchange into a custodial
    interrogation. 
    Dowthitt, 931 S.W.2d at 255
    ; Ussery v. State, 
    651 S.W.2d 767
    , 770
    (Tex.Crim.App.1983). This is where Ramirez is similar to the instant case. In
    Ramirez, while conducting a pat down, the officer told Ramirez he was being
    5
    detained and placed him in 
    handcuffs. 105 S.W.3d at 736
    . The officer informed
    Ramirez that he could see drug paraphernalia and drug residue in the garage and
    asked, “Is there anything else I'm going to find in there that's illegal, any more
    marijuana?” 
    Id. Ramirez replied,
    “Well, I guess there's some pot in the red
    cooler.” 
    Id. The Stansbury
    test was applied to the facts in Ramirez and it was determined
    that the appellant was in custody at the time the officer asked him whether he
    would find any additional illegal items or marijuana in the garage. 
    Id. at 738.
    First,
    the officer physically deprived appellant of his freedom of action in a significant
    way when he handcuffed him and began patting him down. 
    Id. Second, he
    told the
    appellant he was being detained, indicating the suspect could not leave. 
    Id. Third, his
    actions in handcuffing the appellant and stating that he appellant was detained
    created a situation that would lead a reasonable person in the appellant's position to
    believe that his freedom of movement was significantly restricted. 
    Id. Finally, the
    officer told the appellant he saw drug paraphernalia and drug residue in his garage.
    He indicated that he knew the items were contraband by asking the appellant
    whether he would find anything else “illegal” in the garage and whether he would
    find “any more marijuana.” 
    Id. These factors
    satisfied the Stansbury test for
    custody.
    6
    As in Ramirez, the Stansbury test satisfies the case at hand. First, Officer
    Sutton physically deprived Appellant of his freedom of action in a significant way
    when he handcuffed him and began patting him down. (2RR-32). Second, neither
    Appellant nor the driver were free to leave. (2RR-36,42). Third, Officer Sutton’s
    actions in handcuffing Appellant and stating that Appellant was detained created a
    situation that would lead a reasonable person in appellant's position to believe that
    his freedom of movement was significantly restricted. Finally, Officer Sutton told
    the driver in front of Appellant that he saw drug residue on his shoulder and
    questioned the driver about drugs. (2RR-29). Most importantly, Officer Sutton
    could reasonably foresee that his question would elicit an incriminating response
    when he asked Appellant, “You are not going to BS me like your buddy…You’re
    going to be honest with me about what’s going on here,” to which Appellant gave
    the following incriminating response of, “I’m going to be honest with you. I have a
    sweet in my pocket.” (2RR-49).
    In Moore, the state argues that this case is not similar (where the court found
    that handcuffing the appellant was not reasonably necessary) based solely on the
    fact that the crime was forgery and not possession of marijuana. (SB-11).
    However, the state fails to recognize that the similarities in Moore to this case
    heavily outweigh the single factor of the type of crime being committed. Each
    factor addressed in Moore was applied to the facts in this case in Appellant’s brief,
    7
    showing a striking similarity; from reasonable suspicion for the handcuffing, the
    area and time of night, the officer being alone (for just over one minute), to the
    officer not conducting any type of investigation. (AB 13-14). Furthermore, because
    the subjective beliefs of the detaining officer are not included in the calculation of
    whether a suspect is in custody, we should not minimize the actions of Officer
    Sutton based solely on the type of crime Appellant was eventually arrested for.
    
    Ortiz, 382 S.W.3d at 372
    .
    Although the issue of custodial interrogation is subject to a de novo review
    as an issue of law; the reviewing court gives almost total deference to a trial court’s
    determination of historical facts. Carmouche v. State, 
    10 S.W.3d 323
    , 327 (Tex.
    Crim. App. 2000). The trial court found that Appellant was under arrest prior to
    making his statement to Officer Sutton, thus we again address if Appellant’s
    statement was the product of a custodial interrogation. The State misses the mark
    by leading the court to view Ortiz as distinguishable with respect to this issue. (SB-
    18). If facts from trial court cases were identical to cases establishing a precedent,
    our courts would not have much work to do.
    It is true that Officer Sutton may have not asked Appellant specifically about
    “drugs” or “marijuana” such as in Ortiz. However, the driver was questioned in
    front of Appellant about marijuana being on his person or in the vehicle, two
    officers were at the scene by the time Appellant is questioned, the officers had
    8
    manifested their belief to Appellant that he and the driver were connected to
    narcotics in some way, and Officer Sutton testified Appellant was not free to leave.
    (AB-9). As Officer Sutton only asked about marijuana at the scene, it would be a
    stretch for us to think that his question to Appellant was inquiring about something
    other than marijuana. Based on these facts, it would be questionable to consider
    Ortiz as distinguishable. Furthermore, despite the State’s assertion that Appellant’s
    statement was a spontaneous voluntary response; no testimony or evidence exists
    to support that. In fact, the statement given by Appellant was the first thing he said
    to Officer Sutton, and was the result of a direct question addressed to him, a
    question likely to elicit an incriminating response. Roquemore v. State, 
    60 S.W.3d 862
    , 868 (Tex.Crim.App.2001) (quoting Rhode Island v. Innis, 
    446 U.S. 291
    , 301
    (1980)). (2RR-29).
    This case speaks volumes about interaction between police officers and
    citizens, and the force that officers exhibit in their line of duty. There are no bright
    line rules or cases supporting the conduct of Officer Sutton, however there are
    numerous cases highlighting what a reasonable person would believe this type of
    encounter entails supporting Appellant’s position. Under a reasonable person
    standard, Appellant was in custody and under arrest without probable cause during
    questioning, and was forced to provide an incriminating response leading to the
    recovery of marijuana on his person. Accordingly, the trial court erred in not
    9
    granting the motion to suppress all evidence obtained as the result of an illegal
    detention and arrest. See Wong Sun v. United States, 
    371 U.S. 471
    (1963).
    Respectfully submitted,
    /s/Gary Tabakman
    GARY TABAKMAN
    TBA No. 24076065
    JPMorgan Chase Bank Building
    712 Main Street, 31st Floor
    Houston, Texas 77002
    Telephone: (713) 228-8500
    Facsimile: (713) 228-0034
    Counsel for Appellant,
    ALPHONSON MALONE
    10
    CERTIFICATE OF COMPLIANCE
    Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned
    counsel of record certifies that the brief contains 2,905 words.
    /s/Gary Tabakman
    GARY TABAKMAN
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the above and foregoing Brief
    for Appellant was served via e-mail delivery through eFile.TXCourts.gov to Alan
    Curry Harris County District Attorney’s Office 1201 Franklin, Houston, Texas
    77002 on this the 30th day of December 2014.
    /s/Gary Tabakman
    GARY TABAKMAN
    11