Rolando Romero v. State ( 2015 )

ACCEPTED
13-14-00448-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
5/20/2015 10:10:35 AM
DORIAN RAMIREZ
CLERK
No. 13-14-448-CR
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI 5/20/2015 10:10:35 AM
DORIAN E. RAMIREZ
Clerk
ROLANDO ROMERO,
APPELLANT,
v.
THE STATE OF TEXAS,
APPELLEE.
ON APPEAL FROM THE 94TH DISTRICT COURT
NUECES COUNTY, TEXAS
BRIEF FOR THE STATE
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
Attorney for Appellee
ORAL ARGUMENT IS REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................... ii
STATEMENT OF FACTS ..............................................................................1
SUMMARY OF THE ARGUMENT ..............................................................3
ARGUMENT ...................................................................................................4
Reply Point No. 1
The trial court properly denied Romero’s motion to suppress. ................4
I. Standard of Review. .........................................................................4
II. Burden of Proof. .............................................................................5
III. Officer Tackett’s Right to Enter the Driveway. ........................6
IV. Officer Tackett’s Encounter with Romero. ................................8
Reply Point No. 2
The trial court properly refused to include an Article 38.23 instruction
in the jury charge. ....................................................................................... 13
PRAYER ....................................................................................................... 15
RULE 9.4 (i) CERTIFICATION .................................................................. 15
CERTIFICATE OF SERVICE ..................................................................... 16
INDEX OF AUTHORITIES
Cases
United States v. Alvarez, 213 F.3d 636 (5th Cir. 2000)...................................8
Atkins v. State, 882 S.W.2d 910 (Tex. App.-Houston [1st Dist.] 1994, pet.
denied)..............................................................................................................7
Bower v. State, 769 S.W.2d 887 (Tex. Crim. App. 1989). ..............................7
Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400 (2007). ................. 9, 10
United States v. Brown, 510 F.3d 57 (1st Cir. 2007)......................................8
Buchanan v. State, 129 S.W.3d 767 (Tex. App.-Amarillo 2004, pet. ref’d). ..6
California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991). .................. 11
State v. Castleberry, 332 S.W.3d 460 (Tex. Crim. App. 2011). ............... 8-11
Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010). ........................... 9-11
Delosreyes v. State, 853 S.W.2d 684 (Tex. App.-Houston [1st Dist.] 1993,
no pet.). ............................................................................................................7
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011)................ 12
United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134 (1987). ........................6
Emiliano v. State, 840 S.W.2d 102 (Tex. App.—Corpus Christi 1992, pet.
ref'd). ........................................................................................................... 6, 7
Fla. v. Bostick, 501 U.S. 429, 111 S. Ct. 2382 (1991)................................9
Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). ................................5
Garza v. State, 126 S.W.3d 79 (Tex. Crim. App. 2004). ............................. 14
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). .............................5
Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990). ..........................6
United States v. Kessler, 165 F.3d 24 (5th Cir. 1998). ....................................8
Krause v. Penny, 837 F.2d 595 (2d Cir.1988). ................................................8
ii
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). ........................ 13
Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011). ..........................4
United States v. McIver, 186 F.3d 1119 (9th Cir.1999). .................................8
United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980). ........... 10
United States v. Moffitt, 233 Fed. Appx. 409 (5th Cir. 2007). ........................8
United States v. Montanya, 425 Fed. Appx. 392 (5th Cir. 2011). ...................8
Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735 (1984). .......................6
United States v. Pineda-Moreno, 688 F.3d 1087 (9th Cir. 2012). ..................8
Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012). ................ 13, 14
Rodriguez v. State, 106 S.W.3d 224 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref'd). .........................................................................................................7
State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000). ...................................5
Russell v. State, 717 S.W.2d 7 (Tex. Crim. App. 1986). .................................5
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). ......................................... 12
Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996)..........................6
Winter v. State, 902 S.W.2d 571 (Tex. App.-Houston [1st Dist.] 1995, no
pet.). .................................................................................................................7
State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011). .................. 9, 10
Statutes & Rules
Tex. Code Crim. Proc. art. 38.23. ................................................................. 13
iii
NO. 13-14-448-CR
ROLANDO ROMERO, § COURT OF APPEALS
Appellant, §
§
V. § FOR THE THIRTEENTH
§
THE STATE OF TEXAS, §
Appellee. § DISTRICT OF TEXAS
BRIEF FOR THE STATE
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF FACTS
At a July 14, 2014, hearing on motion to suppress, Officer Braden
Tackett testified that he saw Romero‘s vehicle parked in a driveway with the
driver‘s door open and the interior light on (Supp. RR p. 10), and that he saw
Romero in the vehicle leaning over and going through the glove box. (Supp.
RR p. 11) Officer Tackett then walked up to Romero with the intent of
making contact with him. (Supp. RR p. 12) When he reached the driver
door, Officer Tackett said ―Hey, what‘s going on.‖ (Supp. RR pp. 14-15)
Officer Tackett denied that he drew his weapon or gave Romero any orders
at this time. (Supp. RR p. 16) This was the extent of Officer Tackett‘s
interaction with Romero before he observed the cocaine at issue.
The State also admitted the transcript of an earlier motion to suppress
as SX #1. (Supp. RR pp. 4-5) That exhibit reflects a May 18, 2012, motion
to suppress in a separate cause number, in which Officer Tackett had
testified that he had seen Romero‘s vehicle parked at a residence at 2:00 in
the morning, with the driver door open, the interior light on, and Romero
rummaging through it. (SX # 1, pp. 5-6) Officer Tackett testified that the
vehicle was in the driveway, which was open and could be seen from the
road. (SX # 1, p. 7) As Officer Tackett approached the vehicle, he saw the
ignition wires hanging below the steering column and Romero doing
something around the steering column, such that it appeared that he might be
trying to steal the vehicle. (SX # 1, p. 8) When Officer Tackett reached the
door area, he said, ―Hey,‖ and ―What‘s going on.‖ (SX # 1, p. 8)
At the conclusion of the present July 14, 2014, hearing, the defense
agreed with the trial court that the only issue was whether Officer Tackett
could ―walk up the driveway … and find contraband‖ (Supp. RR p. 38), and
stated a little differently, whether he could ―walk up and say, ‗Hey, what‘s
going on?‘‖ (Supp. RR p. 39) The trial court took the motion under
advisement, giving the parties the opportunity to brief the issues. (Supp. RR
p. 42)
At a July 22, 2014, Pretrial Hearing, the trial court denied Romero‘s
motion to suppress. (RR vol. 2, p. 4)
2
At trial, Officer Braden Tackett testified that, while patrolling at 2:00
in the morning, he noticed a truck in a driveway with the driver door open
and the anterior light on, and a male bent over and rummaging through the
vehicle. (RR vol. 5, pp. 29-30) Officer Tackett then walked up to the truck.
(RR vol. 5, pp. 30-31) When Officer Tackett reached the driver door, he
saw wires from the ignition hanging down and noticed that Romero had a
clear plastic baggie with a white powdery substance in it, and then said to
Romero ―Hey, what‘s up?‖ (RR vol. 5, pp. 32-33) Officer Tackett testified
that the area in question where he approached Romero was in an open front
yard, not behind a fence or locked gate. (RR vol. 5, p. 52)
Rolando Romero testified and generally confirmed Officer Tackett‘s
version of the initial encounter, disagreeing only with Tackett‘s testimony
that he was bent over and rummaging through the glove box and that he had
a baggie in his hand. (RR vol. 5, pp. 67-69)
At the charge conference, Romero made no request for an Article
38.23 instruction. (RR vol. 5, pp. 82-83)
SUMMARY OF THE ARGUMENT
First Issue – The trial court properly denied Romero‘s motion to
suppress, because Officer Tackett had the right to approach Romero on the
open and accessible driveway in front of his residence, and to ask him what
3
was ―up‖ or ―going on,‖ without either probable cause or reasonable
suspicion.
Second Issue – The trial court properly did not include an Article
38.23 instruction in the jury charge because no evidence raised a question
concerning the legality of the encounter or the admissibility of the evidence
seized.
ARGUMENT
Reply Point No. 1
The trial court properly denied Romero’s motion to suppress.
By his first issue, Romero complains that the trial court erred in
failing to suppress evidence developed after Officer Tackett contacted
Romero because Officer Tackett supposedly had no authority to be present
on the driveway next to Romero‘s truck and because his contact with
Romero supposedly amounted to an illegal detention.
I. Standard of Review.
In reviewing a trial court's ruling on a motion to suppress, the
appellate court must apply a bifurcated standard of review, giving almost
total deference to a trial court's determination of historic facts and mixed
questions of law and fact that rely upon the credibility of a witness, but
applying a de novo standard of review to pure questions of law and mixed
questions that do not depend on credibility determinations. Martinez v.
4
State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011); Guzman v. State,
955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997).
In a motion to suppress hearing, the trial court is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their
testimony, such that he may believe or disbelieve all or any part of a
witness's testimony, even if that testimony is not controverted. State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
When the trial court fails to file findings of fact, the evidence is
viewed in the light most favorable to the trial court's ruling, assuming that
the trial court made implicit findings of fact that support its ruling as long as
those findings are supported by the record. Ross, 32 S.W.3d at 855. If the
trial judge's decision is correct on any theory of law applicable to the case,
the decision should be sustained. Ross, 32 S.W.3d at 855-56.
II. Burden of Proof.
To suppress evidence on an alleged Fourth Amendment violation, the
defendant bears the initial burden of producing evidence that rebuts the
presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492
(Tex. Crim. App. 2005); Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App.
1986). Specifically, the movant has the burden to establish that he had an
expectation of privacy in the area into which the police allegedly intruded.
5
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Buchanan
v. State, 129 S.W.3d 767, 771 (Tex. App.-Amarillo 2004, pet. ref‘d).
III. Officer Tackett’s Right to Enter the Driveway.
The State may seize items in ―plain view‖ if the initial intrusion is
proper, such that the police have the right to be where they are, and the item
is immediately apparent to the police to be evidence. Horton v. California,
496 U.S. 128, 136–37, 110 S. Ct. 2301, 2307–08, 110 L. Ed. 2d 112 (1990);
Emiliano v. State, 840 S.W.2d 102, 104 (Tex. App.—Corpus Christi 1992,
pet. ref'd).
The Fourth Amendment protects the curtilage of a house, and the
extent of the curtilage is determined by factors that bear upon whether an
individual reasonably may expect that the area in question should be treated
as the home itself. United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct.
1134, 1139, 94 L. Ed. 2d 326 (1987) (citing Oliver v. United States, 466 U.S.
170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed. 2d 214 (1984)); Emiliano, 840
S.W.2d at 104. Curtilage questions require an examination of the proximity
of the intruded area to the home, the nature of uses to which the area is put,
whether the area is within the home's enclosure, and the steps the resident
took to protect the area from observation of passers-by. Dunn, 480 U.S. at
301; Emiliano, 840 S.W.2d at 104.
6
Specifically, there is no reasonable expectation of privacy if the
activity viewed by an officer is visible from the street, or the curtilage is
open to the public. See Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim.
App. 1989); Atkins v. State, 882 S.W.2d 910, 912 (Tex. App.-Houston [1st
Dist.] 1994, pet. denied). The Court of Criminal Appeals has held that a
person's Fourth Amendment rights are not violated when a law enforcement
officer discovers evidence in plain view after intruding upon the curtilage if
the officer approached the premises by the indicated usual route and did not
deviate from the public pathway. Bower, 769 S.W.2d at 897. In Bower, this
right to approach validated the act of a police officer entering the driveway
and looking through a window into the garage. Id. at 897–98; see also
Emiliano, 840 S.W.2d at 105 (citing Bower).
Other Texas cases have likewise generally held that the resident has a
lessened and/or no reasonable expectation of privacy in readily accessible
areas like driveways in front of his home. See Rodriguez v. State, 106
S.W.3d 224, 228 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd); Winter v.
State, 902 S.W.2d 571, 575 (Tex. App.-Houston [1st Dist.] 1995, no pet.);
Delosreyes v. State, 853 S.W.2d 684, 690 (Tex. App.-Houston [1st Dist.]
1993, no pet.). Federal cases as well suggest that an exposed and readily
accessible driveway is not a part of the home‘s protected curtilage. See
7
United States v. Pineda-Moreno, 688 F.3d 1087, 1090 (9th Cir. 2012);
United States v. Montanya, 425 Fed. Appx. 392, 393 (5th Cir. 2011); United
States v. Moffitt, 233 Fed. Appx. 409, 411-12 (5th Cir. 2007); United States
v. Brown, 510 F.3d 57, 65 (1st Cir. 2007); United States v. Alvarez, 213
F.3d 636 (5th Cir. 2000); United States v. Kessler, 165 F.3d 24 (5th Cir.
1998); United States v. McIver, 186 F.3d 1119, 1126 (9th Cir.1999); Krause
v. Penny, 837 F.2d 595, 597 (2d Cir.1988).
In the present case, the evidence suggested that the driveway in
question was open and could be seen from the road, such that Romero did
not have a privacy interest that the Fourth Amendment would protect in
connection with Officer Tackett‘s entry onto that driveway to make contact
with Romero.
IV. Officer Tackett’s Encounter with Romero.
Having legitimately entered the driveway, Officer Tackett‘s only
other action before discovering the cocaine in plain view was to say to
Romero, ―Hey, what‘s going on.‖
There are three distinct types of interactions between police and
citizens: (1) consensual encounters, which require no objective justification;
(2) investigatory detentions, which require reasonable suspicion; and (3)
arrests, which require probable cause. State v. Castleberry, 332 S.W.3d
8
460, 466 (Tex. Crim. App. 2011) (citing Florida v. Bostick, 501 U.S. 429,
434, 111 S. Ct. 2382 (1991)); see also State v. Woodard, 341 S.W.3d 404,
410-11 (Tex. Crim. App. 2011); Crain v. State, 315 S.W.3d 43, 49 (Tex.
Crim. App. 2010).
Whether the facts surrounding the interaction between a police officer
and a citizen constitute a consensual police-citizen encounter or a Fourth
Amendment detention is subject to a de novo review. Castleberry, 332
S.W.3d at 466.
Unlike an investigative detention and an arrest, consensual police-
citizen encounters do not implicate Fourth Amendment protections.
Castleberry, 332 S.W.3d at 466 (citing Bostick, 501 U.S. at 434); see also
Woodard, 341 S.W.3d at 411; Crain, 315 S.W.3d at 49. An officer is just
as free as anyone to stop and question a fellow citizen. Castleberry, 332
S.W.3d at 466 (citing Bostick, 501 U.S. at 434-35); see also Woodard, 341
S.W.3d at 411.
However, an encounter is no longer consensual when an officer,
through physical force or a showing of authority, has restrained a citizen's
liberty. Castleberry, 332 S.W.3d at 466 (citing Brendlin v. California, 551
U.S. 249, 254, 127 S. Ct. 2400 (2007)); see also Woodard, 341 S.W.3d at
411.
9
There is no bright-line rule to determine when an encounter becomes
a seizure; instead, courts must take into account the totality of the
circumstances surrounding the interaction to determine whether a reasonable
person would have felt free to ignore the police officer's request or terminate
the encounter. Castleberry, 332 S.W.3d at 466-67 (citing Brendlin, 551
U.S. at 255). The time, place, and surrounding circumstances must be taken
into account, but the officer's conduct is the most important factor in
determining whether a police-citizen interaction is a consensual encounter or
a Fourth Amendment seizure. Woodard, 341 S.W.3d at 411; Castleberry,
332 S.W.3d at 467. Circumstances which might turn a consensual encounter
into a seizure include "the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled." Crain, 315
S.W.3d at 49-50 (quoting United States v. Mendenhall, 446 U.S. 544, 554,
100 S. Ct. 1870 (1980)).
In Castleberry, the Court of Criminal Appeals found only a
consensual encounter when the officer did nothing more than approach the
suspect, ask for identification, and question why he and his companion were
walking through a certain area. 332 S.W.3d at 468.
10
In Crain, however, the Court of Criminal Appeals concluded that,
when an officer encountered a walking suspect and called out to him through
the window of his patrol car, the officer's "act of shining his patrol car's
overhead lights in the appellant's direction, coupled with his request-that-
sounded-like-an-order, to 'come over here and talk to me,'‖ amounted to a
detention. 315 S.W.3d at 52.
In the present case, the evidence fails to support any show of authority
beyond merely asking Romero what was going on, such that the encounter
clearly did not escalate into a detention.
Moreover, even assuming that Officer Tackett‘s presence might have
conveyed some sense of compulsion to Romero, there is no indication that
Romero yielded in any manner to that supposed compulsion before the
cocaine in question was discovered. When a suspect fails to yield to a show
of physical force and there has been no actual use of physical force, then
there is no seizure. Castleberry, 332 S.W.3d at 467 (citing California v.
Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991)). In Castleberry, when the
suspect ignored an officer's demands that he put his hands above his head, he
was not detained or arrested until forced to comply. 332 S.W.3d at 469. In
the present case, accordingly, absent any evidence that Romero yielded to
Officer Tackett‘s supposed show of authority in some manner that had an
11
effect on the discovery of the contraband, the Fourth Amendment had not
been violated in any manner that would require suppression of that
contraband.
Finally, even if Romero had been detained by that time, and his
detention had some effect on the discovery of the cocaine, Officer Tackett
clearly had reasonable suspicion at that point.
A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, combined with rational inferences from those facts,
would lead him reasonably to conclude that the person detained is, has been,
or soon will be engaged in criminal activity. Derichsweiler v. State, 348
S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing Terry v. Ohio, 392 U.S. 1,
21-22, 88 S. Ct. 1868 (1968)).
By the time Officer Tackett announced his presence to Romero, he
had seen him rummaging through the vehicle late at night and wires hanging
down from the steering column in a manner that suggested Romero might
have been trying to steal the truck. This was clearly sufficient to show
reasonable suspicion to detain.
The trial court properly denied Romero‘s motion to suppress.
Romero‘s first issue on appeal should be overruled.
12
Reply Point No. 2
The trial court properly refused to include an Article 38.23
instruction in the jury charge.
By his second issue on appeal, Romero complains that the trial court
erred in failing to submit an Article 38.23 jury instruction concerning
illegally obtained evidence.
The Code of Criminal Procedure provides that ―[n]o evidence
obtained by an officer ... in violation of any provisions of the Constitution or
laws ... shall be admitted in evidence against the accused‖ at trial, and that,
when evidence presented before the jury raises a question of whether the
fruits of a police-initiated search or arrest were illegally obtained, ―the jury
shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, then and
in such event, the jury shall disregard any such evidence so obtained.‖ Tex.
Code Crim. Proc. art. 38.23(a).
To be entitled to an Article 38.23(a) instruction, the defendant must
show that (1) an issue of historical fact was raised in front of the jury; (2) the
fact was contested by affirmative evidence at trial; and (3) the fact is
material to the constitutional or statutory violation that the defendant has
identified as rendering the particular evidence inadmissible. Robinson v.
State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (citing Madden v. State,
13
242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007)). Evidence to justify an
Article 38.23(a) instruction can derive ―from any source,‖ no matter whether
―strong, weak, contradicted, unimpeached, or unbelievable,‖ but it must, in
any event, raise a ―factual dispute about how the evidence was obtained.‖
Robinson, 377 S.W.3d at 719 (quoting Garza v. State, 126 S.W.3d 79, 85
(Tex. Crim. App. 2004)). Where the issue raised by the evidence at trial
does not involve controverted historical facts, but only the proper application
of the law to undisputed facts, that issue is properly left to the determination
of the trial court. Robinson, 377 S.W.3d at 719.
For the reasons explained in the State‘s response to the first issue, no
fact issue was raised that would have rendered the evidence in question
inadmissible, such that Romero was not entitled to an Article 38.23
instruction.
Romero‘s second issue on appeal should be overruled.
14
PRAYER
For the foregoing reasons, the State respectfully requests that the
judgment of the trial court be affirmed.
Respectfully submitted,
/s/Douglas K. Norman
___________________
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 2,964.
/s/Douglas K. Norman
___________________
Douglas K. Norman
15
CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was e-mailed on May 20,
2015, to Appellant‘s attorney, Ms. Irma Sanjines, at irmasanjines@aol.com.
/s/Douglas K. Norman
___________________
Douglas K. Norman
16