Quinton Shandra Jones v. State ( 2015 )

ACCEPTED
14-15-00612-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
12/31/2015 11:53:19 AM
CHRISTOPHER PRINE
CLERK
No. 14-15-00612-CR
IN THE COURT OF APPEALS
FOURTEENTH DISTRICT FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS HOUSTON, TEXAS
12/31/2015 11:53:19 AM
CHRISTOPHER A. PRINE
QUINTON JONES, Clerk
Appellant
Vs.
THE STATE OF TEXAS,
Appellee
ON APPEAL FROM CAUSE NO. 74300
412th JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS
HONORABLE EDWIN DENMAN JUDGE PRESIDING
BRIEF FOR THE APPELLANT
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com
ATTORNEY FOR APPELLANT ORAL ARGUMENT REQUESTED
DATE: DECEMBER 31, 2015
No. 14-15-00612-CR
IN THE COURT OF APPEALS
FOURTEENTH DISTRICT
HOUSTON, TEXAS
QUINTON JONES,
Appellant
Vs.
THE STATE OF TEXAS,
Appellee
BRIEF FOR THE APPELLANT
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
QUINTON JONES, the Defendant in Cause 74300 in the 412th JUDICIAL
DISTRICT COURT, Brazoria County, Texas, respectfully submits this brief, and
would respectfully show the Court the following:
1
TABLE OF CONTENTS
Parties to the Case…………………………………………………………..………5
List of Authorities……………………………………………………………..……6
Statement of the Case……………………………………………………………....9
Statement Regarding Oral Argument…………………………………..……..…....9
Issues Presented…………………………………………………………………...10
Summary of the Argument……………………………………………..………….11
Statement of Facts………………………………………………………………...13
Motion to Suppress Hearing………………………………………….….…13
Testimony of Mike Glaspie.. ……………………………………..…13
State’s Exhibit 1………………………………………………...……15
Testimony at Guilt / Innocence Phase of Trial…………………………..…19
Testimony of Mike Glaspie…………………………………...…..…19
Testimony of Haleigh Balser…………………………………..…….21
Testimony of Tahika Johnican……………………………….………21
Testimony at Punishment Phase of Trial…………………………………...23
Testimony of Carrie Bullard……………………………….………..23
Appellant’s First Point of Error……………………….…………………………..24
The trial court erred by denying Appellant’s motion to suppress. The officer who
conducted a traffic stop of the vehicle operated by Appellant lacked reasonable
suspicion of any traffic violation or other criminal activity.
2
Standard of Review and Applicable Law…………………………………………24
Relevant Facts………………………………………………………….…..26
Analysis……………………………………………………….……………27
The Stop Was Warrantless…………………………………………..27
Glaspie Lacked Reasonable Suspicion or Probable Cause of A Traffic
Violation for Failure to Maintain a Single Lane……………….…..28
Glaspie Lacked Reasonable Suspicion or Probable Cause of A Traffic
Violation for Driving on an Improved Shoulder………………..…29
Glaspie Lacked Reasonable Suspicion That Appellant Was
Intoxicated………………………………………………………….33
Suppression……………………………………..………………….37
Harm……………………………………………………………..…38
Appellant’s Second Point of Error…………….……………………………...….40
The trial court erred by denying Appellant’s motion to suppress. The detention of
Appellant was unreasonably prolonged past the time reasonably necessary to
satisfy the purpose of the traffic stop. The continued detention of Appellant after
warrant checks were complete, and alternatively, once the passenger with warrants
in the vehicle was arrested, was an unreasonable seizure.
Standard of Review and Applicable Law……………………………….…40
Relevant Facts……………………………………………………………..41
Analysis…………………………………………………………………….42
Consent…………………………………………………....………...47
Suppression……….……………………………………….………...49
Harm……………………………………………………………..…49
3
Appellants Third Point of Error………………….………………………….…..52
If this Court finds that the trial court erred by denying Appellant’s motion to
suppress, this Court should find that the evidence remaining, after excluding the
suppressible evidence, is legally insufficient to sustain the conviction against
Appellant for possession of a controlled substance.
Standard of Review and Applicable Law……………………………….…52
Relevant Facts………………………………………………………….….53
Analysis…………………………………………………………………….53
Appellants Fourth Point of Error.………………………………………….……..56
The trial court was not rationally justified in finding beyond a reasonable doubt
that Appellant possessed a controlled substance as alleged in the indictment.
Deferring to the trial court’s rational resolution of conflicting evidence, the
evidence admitted at trial did not support a conclusion that Appellant committed
possession of a controlled substance.
Standard of Review and Applicable Law…………………………...….….56
Relevant Facts…………………………………………………….……….57
Analysis…………………………………………………………………….58
Conclusion and Prayer……………………………...……………………………..63
Certificate of Service……………….......................................................................64
Certificate of Word Count…………………………………………………………64
4
PARTIES TO THE CASE
APPELLANT: QUINTON JONES
Attorney for Appellant at Trial:
Name: Lawrence Packard
SBN: 15402500
Address: P.O. Box
Lake Jackson, Texas 77566
Attorney for Appellant on Appeal:
Name: Joseph Kyle Verret
SBN: 24042932
Address: The Law Office of Kyle Verret, PLLC
1200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com
APPELLEE: THE STATE OF TEXAS
Attorneys for the State at Trial:
Name: David Tamez
SBN: 24079433
Name: Jessica Pulcher
SBN: 00795600
Address: Brazoria County Criminal District Attorney
111 East Locus Street, Suite 408A
Angleton, Texas 77515
Attorneys for the State on Appeal:
Name: Jeri Yenne
SBN: 04240950
Name: David Bosserman
SBN: 02679520
Address: Brazoria County Criminal District Attorney
111 East Locust Street, Suite 408A
Angleton, Texas 77515
Phone: 979-864-1230
Fax: 979-864-1525
5
LIST OF AUTHORITIES
Constitutional Provisions
U.S. CONST. AMEND. IV………..….…..24, 25, 38, 40, 43, 44, 46, 47, 49, 50, 63
TEX. CONST. ART. I, § 9……………….……………………………..…….24, 40
Rules
TEX. R. APP. PROC. 44.2(A)…………………………………………………...38, 50
TEX. R. APP. PROC. 44.2(B). ……………………………………….................38, 50
Statutes
Tex. Code Crim. Proc. Ann. 38.23 (Lexis Advance current through 2013 3d
CS)……………………………………………………...25, 37, 38, 41, 49, 50
Tex. Health & Safety Code §481.115 (Lexis Advance current through 2013 3d
CS)……………………………………………………………………...53, 56
Tex. Transp. Code § 545.058 (Lexis Advance current through 2013 3d
CS)………………………………………………………………….26, 29-33
Tex. Transp. Code § 545.060 (Lexis Advance current through 2013 3d
CS)………………………………………………………………….26, 28-30
Appellate Court Decisions
Bass v. State, 64 S.W.3d 646 (Tex. App. -- Texarkana 2001, pet. ref’d.)…….52, 54
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000)……………………..24
6
Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007)………………………….36
Delafuente v. State, 414 S.W.3d 173 (Tex. Crim. App. 2013)…………………….25
Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010)…………………………36
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)……………………….38, 50
Lothrop v. State, 372 S.W.3d 187 (Tex. Crim. App. 2012)…………………….31-32
Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (U.S.
1961)...………………………………………………………….25, 37, 41, 49
Overshown v. State, 329 S.W.3d 201 (Tex. App. -- Houston [14th Dist.] 2010, no
pet.)…………………………………………………………………………25
Pineda v. State, 444 S.W.3d 136 (Tex. App. -- San Antonio 2014, pet. ref’d)……47
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005)………………...59, 61
Pomier v. State, 326 S.W.3d 373 (Tex. App. -- Houston [14th] 2010, no
pet.)…………………………………………………………………52, 56, 61
Rodriguez v. United States, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (U.S. 2015)...41, 46
Scardino v. State, 294 S.W.3d 401 (Tex. App. -- Corpus Christi 2009, no
pet.)……………………………………………………………..…..29, 30, 33
Seals v. State, 187 S.W.3d 417 (Tex. Crim. App. 2005)…………..…………..54, 56
State v. Houghton, 384 S.W.3d 441 (Tex. App. -- Fort Worth 2012, no pet.)……..28
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013)……………………….24
7
State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App. 2011)…………………..25, 40
Torres v. State, 466 S.W.3d 329 (Tex. App. -- Houston [14th Dist.] 2015, no
pet.)………………………………………………………………………...59
United States v. Benavides, 291 Fed. Appx. 603 (5th Cir. Tex. 2008)…………….31
United States v. Chavez-Villarreal, 3 F.3d 124 (5th Cir. Tex. 1993)…………..47-48
United States v. Lopez-Moreno, 420 F.3d 420 (5th Cir. 2005)……25, 40, 43, 45, 46
United States v. Powell, 732 F.3d 361 (5th Cir. 2013)……………………......41, 45
Young v. State, 133 S.W.3d 839 (Tex. App. -- El Paso 2004, no pet.)……....……35
8
STATEMENT OF THE CASE
On September 18, 2014, Appellant was indicted for the offense of possession
of a controlled substance, penalty group one, one to four grams of
methamphetamine, alleged to have occurred on or about June 28, 2014. (1 C.R. at
5). The State filed notice of enhancement on February 25, 2015. (1 C.R. at 17).
Appellant filed a motion to suppress on March 3, 2015. (1 C.R. at 14-15). The
trial court held a suppression hearing on March 26, 2015. (2 R.R. at 1). The trial
court denied Appellant’s motion to suppress. (2 R.R. at 40).
Appellant waived his right to a jury trial in writing. (1 C.R. at 24). The
court held a trial on March 26, 2015. (3 R.R. at 1). Appellant was convicted of the
charged offense. (C.R. at 47). A presentence investigation was conducted. (2
C.R.). The trial court held a punishment hearing on June 26, 2015. (4 R.R. at 1).
The sentenced Appellant to nine years confinement in the Texas Department of
Criminal Justice Institutional Division. (C.R. at 47).
Appellant timely filed notice of appeal on July 10, 2015. (1 C.R. at 46).
Appellant filed a motion for new trial on July 10, 2015. (1 C.R. at 43).
Appellant’s motion for new trial was overruled by operation of law.
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument. The Court’s decisional process would be
aided by oral argument.
9
ISSUES PRESENTED
Appellant’s First Point of Error: The trial court erred by denying Appellant’s
motion to suppress. The officer who conducted the traffic stop of the vehicle
operated by Appellant lacked reasonable suspicion of any traffic violation or other
criminal activity.
Appellant’s Second Point of Error: The trial court erred by denying Appellant’s
motion to suppress. The detention of Appellant was unreasonably prolonged past
the time reasonably necessary to satisfy the purpose of the traffic stop. The
continued detention of Appellant after warrant checks were complete, and
alternatively, once the passenger with warrants in the vehicle was arrested, was an
unreasonable seizure.
Appellant’s Third Point of Error: If this Court finds that the trial court erred by
denying Appellant’s motion to suppress, this Court should find that the evidence
remaining, after excluding the suppressible evidence, is legally insufficient to
sustain the conviction against Appellant for possession of a controlled substance.
Appellant’s Fourth Point of Error: The trial court was not rationally justified in
finding beyond a reasonable doubt that Appellant possessed a controlled substance
as alleged in the indictment. Deferring to the trial court’s rational resolution of
conflicting evidence, the evidence admitted at trial did not support a conclusion
that Appellant committed possession of a controlled substance.
10
SUMMARY OF THE ARGUMENT
The trial court erred by overruling the Appellant’s motion to suppress. The
stop of Appellant’s vehicle was made without reasonable suspicion of criminal
activity and without probable cause that a crime had been committed.
The continued detention of Appellant on the roadside after a reasonable time
had passed to satisfy the initial purpose of the stop and complete the warrant
checks of the occupants of Appellant’s vehicle was an unreasonable detention.
Furthermore, the testimony adduced at the suppression hearing did not demonstrate
the reasonableness of the officer’s decision to continue to detain Appellant while
waiting for another officer to arrive to arrest a passenger with an outstanding
warrant.
Alternatively, the continued detention of Appellant after the purpose of the
stop was dispelled and the passenger with a warrant was arrested was unlawful.
The officer had completed a warrant check of the occupants, determined Appellant
was not impaired, and arrested the passenger with a warrant. The record contains
no articulable fact that created additional individualized suspicion justifying the
continued detention of Appellant. There was no reason for the officer to detain
Appellant another second on the roadside.
11
Appellant’s consent to search the vehicle was not a product of free will, but a
result of the continued unlawful detention of Appellant on the roadside for over
thirty minutes.
The evidence of a controlled substance found in Appellant’s vehicle was
obtained as a result of an unlawful seizure in violation of the Fourth Amendment to
the United States Constitution. Without the evidence obtained as a result of the
unlawful seizure, the evidence supporting a conviction in this cause is legally
insufficient.
If this Court finds that at no point the Fourth Amendment was violated, this
Court should find that the evidence admitted at trial was legally insufficient to
support Appellant’s conviction for possession of a controlled substance. Appellant
was one of four occupants in the vehicle. The controlled substance was only found
after Appellant was standing on the roadside for over twenty minutes, while the
other occupants were still in the vehicle. Furthermore, the uncontroverted
testimony at trial was that an occupant other than Appellant put the controlled
substances where the arresting officer found them.
12
STATEMENT OF FACTS
Motion to Suppress Hearing
The attorney for the State stipulated that the search and arrest of Appellant
were warrantless. (2 R.R. at 11-12).
Testimony of Mike Glaspie
Appellant’s counsel called Mike Glaspie (hereinafter “Glaspie”), a police
officer employed by the City of West Columbia. (2 R.R. at 8-9). He had worked
for West Columbia Police Department for six years and was a patrol supervisor. (2
R.R. at 13).
Glaspie testified that in June 2014, he stopped Appellant and arrested him
for the offense of possession of methamphetamine. (2 R.R. at 9). He testified that
the search was warrantless. (2 R.R. at 10).
Glaspie first observed Appellant’s vehicle at approximately 2:25 a.m. (2
R.R. at 12). Glaspie testified that, in his experience, he is more likely to encounter
intoxicated drivers after midnight. (2 R.R. at 14).
The stop occurred within a mile of the city limits of West Columbia. (2 R.R.
at 10). Glaspie first saw Appellant’s vehicle leaving a house that he described as a
“narcotic house.” (2 R.R. at 15). Glaspie testified that he observed Appellant
swerve in his lane of traffic. (2 R.R. at 15). He testified that he then observed
Appellant “violate traffic law, which was cross a double white line or white line
13
onto the shoulder of the road, fail to maintain a single lane.” (2 R.R. at 15, 20).
Glaspie only observed the passenger side tires of the vehicle cross the line once. (2
R.R. at 23). The vehicle never crossed the center stripe into oncoming traffic. (2
R.R. at 24). Based on these observations, Glaspie stopped Appellant’s vehicle. (2
R.R. at 15). Glaspie testified that he was concerned that Appellant was either
intoxicated or had a “medical issue.” (2 R.R. at 16).
Glaspie testified that after he stopped the vehicle he began a DWI
investigation. (2 R.R. at 16). He described Appellant as “agitated,” “fidgety,” and
“irritated”. (2 R.R. at 16). Glaspie testified that he believed Appellant to either be
impaired or trying to hide something. (2 R.R. at 22). He testified that Appellant
could not produce his driver’s license or his insurance card. (2 R.R. at 16).
Glaspie asked for the names of the occupants of the vehicle and performed a
warrant check on them. (2 R.R. at 16).
Glaspie then backed up his vehicle to allow for room for the administration
of field sobriety tests. (2 R.R. at 16). He then asked Appellant to step of out the
car. (2 R.R. at 16). He administered the Horizontal Gaze Nystagmus (hereinafter
“HGN”) test to Appellant, but performed no other field sobriety tests. (2 R.R. at
26). After conducting the HGN test, Glaspie determined that Appellant was not
impaired. (2 R.R. at 28). Glaspie did not believe Appellant’s speech was slurred.
14
(2 R.R. at 27). Glaspie did not charge Appellant with Driving While Intoxicated.
(2 R.R. at 26).
Glaspie testified that the warrant check returned that one of the backseat
passengers had an outstanding parole warrant. (2 R.R. at 16-17). Glaspie
requested assistance from the Brazoria County Sheriff’s Office (hereinafter
“BCSO”), and a deputy was dispatched to assist him. (2 R.R. at 17).
Glaspie asked for consent to search the vehicle. (2 R.R. at 17). The request
to search the vehicle was not made until approximately 40 minutes into the stop.
(2 R.R. at 24-26). He testified that he was given consent to search. (2 R.R. at 17).
State’s Exhibit 1
The traffic stop and encounter between Glaspie and the occupants of
Appellant’s vehicle was recorded. (2 R.R. at 9). The camera system in Glaspie’s
vehicle stored video starting 30 seconds prior to the activation of its emergency
lights. (2 R.R. at 10). The recording was admitted into evidence at the suppression
hearing as State’s Exhibit 1. (2 R.R. at 19). This Court may review the video,
which is part of the record in this cause. The following is a timeline of State’s
Exhibit 1. The time references in this timeline, and throughout Appellant’s brief,
are approximate time markers, as there is no time marker imbedded in the video.
00:00 Video start time
15
00:25 Appellant’s car crossed the right hand solid line. Glaspie immediately
activated red and blue overhead lights
02:09 Glaspie approached Appellant’s car and requested his driver’s license
and proof of insurance.
02:26 Glaspie requested identification from the backseat passengers.
03:39 Glaspie requested identification from another passenger.
05:30 Glaspie requested a warrant check on three people.
15:00 Dispatch can be heard on the radio. Glaspie responded “Nothing else
on the other ones yet?”
16:28 Glaspie asked Appellant to step out of car; Appellant complied.
16:55 Glaspie interrogated Appellant on the side of the road.
17:36 Glaspie frisked Appellant.
18:40 Glaspie administered HGN test to Appellant.
20:10 Glaspie advised Appellant that he only sees “a little bit” and this could
be caused by fatigue.
20:50 Glaspie asked Appellant the name of the front seat passenger,
Appellant replied “Margaret Nichols”.
21:25 Glaspie confirmed the front seat passenger was Margaret Nichols.
22:13 Glaspie requested a warrant check on Nichols.
16
24:45 Dispatch stated “Garcia is 99 out of Austin and county.” Glaspie
asked about the type of warrants. Dispatch advised, “Assault with
Deadly Weapon, used a .38 caliber revolver, Aggravated Assault and
parole violation.”
25:15 Glaspie requested a “county unit”.
25:50 Glaspie requested “confirmation on those hits.” Dispatch replied,
“they are good warrants.”
31:35 Glaspie requested an “ETA” for BCSO. Dispatch advised that there
was no ETA and she would check on others.
32:00 Dispatch advised that a BCSO unit was en route.
32:15 Glaspie stated that the subject was either high or intoxicated.
33:14 The BCSO deputy arrived. Glaspie and the deputy approached the
vehicle.
34:00 The officers arrested one of the backseat passengers and advised him
that he has a warrant.
36:16 Glaspie told Appellant that the arrested passenger is going back to
prison.
36:25 Glaspie asked the other passengers if there is anything else in the car.
The passengers reply no.
17
39:36 Glaspie asked Appellant if there is anything that he shouldn’t have in
his car. Appellant replied “I hope not.”
39:45 Glaspie asked for consent to search the vehicle and Appellant
consented.
39:55 Glaspie told the other officer, “The front seat passenger, Brazoria is
real familiar with her, they said she’s either going to have dope or
pills on her.”
40:30 Glaspie requested the passengers to step out of the vehicle and began
to search the vehicle.
45:20 Glaspie arrested Appellant and Nichols for methamphetamine.
18
Testimony at Guilt / Innocence Phase of Trial
The parties agreed that the evidence from the motion to suppress hearing be
carried over into evidence at guilt / innocence. (3 R.R. at 5).
Testimony of Mike Glaspie
Glaspie testified that on June 28, 2014, he stopped Appellant’s vehicle north
of West Columbia, Texas on Highway 35. (3 R.R. at 6).
Glaspie testified that Appellant was agitated and irritated. (3 R.R. at 6). He
testified that Appellant was fidgeting in his car as he went through his insurance
and registration paperwork. (3 R.R. at 6-7). Shortly after he stopped Appellant’s
vehicle, Glaspie ran Appellant’s driver’s license. (3 R.R. at 7). He also requested a
warrant check on the other occupants of the vehicle. (3 R.R. at 7). Glaspie
identified the other occupants of the vehicle: passenger side front seat passenger
Margaret Nichols (hereinafter “Nichols”), driver side rear passenger Jimmy Garcia
(hereinafter “Garcia”), and passenger side rear seat passenger Tahika Johnican
(hereinafter “Johnican”). (3 R.R. at 19-20). He then moved his patrol vehicle to
start a DWI investigation. (3 R.R. at 7).
Appellant told Glaspie that he had driven to Abilene and back earlier that
day. (3 R.R. at 32).
Another officer arrived on the scene, arrested Garcia, the passenger with an
outstanding warrant, and placed him in Glaspie’s patrol car. (3 R.R. at 7). After
19
arresting the passenger, Glaspie asked for consent to search the vehicle. (3 R.R. at
7). The other passengers were removed from the vehicle and the officers searched
the vehicle. (3 R.R. at 7).
Glaspie began the search on the front passenger side, where he observed an
open purse. (3 R.R. at 8). He searched the purse without obtaining additional
consent. (3 R.R. at 21). In the front passenger side of the vehicle he also found a
Crown Royal makeup bag that contained a pipe. (3 R.R. at 8). He testified that it
was a type of pipe commonly used to smoke methamphetamine, crack cocaine, or
marijuana. (3 R.R. at 8). He found another Crown Royal bag in the passenger side
floorboard containing another pipe. (3 R.R. at 8). He found a prescription pill
bottle containing pills. (3 R.R. at 9). He opened the center console and found
three bags containing a crystalized substance, which he suspected to be
methamphetamine. (3 R.R. at 9-10). He also found four bags containing rolling
papers. (3 R.R. at 9). After finding the crystalized substance, Glaspie arrested
Appellant and the front seat passenger, then continued the search. (3 R.R. at 10).
Glaspie then found a small bag of a synthetic cannabinoid. (3 R.R at 10).
Glaspie placed the pipes and substances he found in plastic evidence bags
and labeled them with an offense report number. (3 R.R. at 11-12). The bags were
submitted to the Brazoria County Sheriff’s Office for testing. (3 R.R. at 12).
20
Glaspie retrieved the evidence from the sheriff’s office and brought it to court for
trial. (3 R.R. at 13).
Testimony of Haleigh Balser
The State called Haleigh Balser (hereinafter “Balser”), a chemist in the
controlled substance section of the Brazoria County Sheriff’s Office Crime Lab. (3
R.R. at 33-34).
Balser testified that she tested the substance collected in this cause. (3 R.R.
at 35-36). Balser first weighed the substance. (3 R.R. at 36). She then performed
presumptive tests on the substance. (3 R.R. at 36). Balser then tested the
substance using a gas chromatography mass spectrometer. (3 R.R. at 36). She
confirmed that the substance was methamphetamine. (3 R.R. at 36). She testified
that the total amount of the substance tested was approximately 1.5556 grams. (3
R.R. at 37). Her report was admitted as State’s Exhibit 3. (3 R.R. at 37).
Testimony of Tahika Johnican
Appellant’s trial counsel called Johnican. (3 R.R. at 44). She testified that
she had known Appellant for years. (3 R.R. at 45). She was with him, Nichols,
and Garcia, on June 28, 2014. (3 R.R. at 45). She had been with Appellant for a
couple of hours. (3 R.R. at 46).
21
Johnican testified that Appellant had rented the vehicle. (3 R.R. at 45).
Johnican was seated behind Nichols. She testified that she could see what Nichols
was doing. (3 R.R. at 46).
Johnican testified that she was not aware of Appellant having drugs on him
and did not see him use drugs on the night of his arrest. (3 R.R. at 46-47).
Johnican testified that Nichols had drugs in her purse. (3 R.R. at 47). Appellant
was outside the car for twenty to thirty minutes after the stop. (3 R.R. at 47). She
testified that she witnessed Nichols reach across the driver’s seat and feel in the
pocket in the door. (3 R.R. at 50). Nichols said that she had two sacks, then she
opened the console and closed it. (3 R.R. at 50). Nichols told Johnican that she
had methamphetamine. (3 R.R. at 52). After Garcia was removed from the
vehicle, Nichols reached in the backseat, got Garcia’s cigarette pack, put
something in it, and threw the pack in the back of the car. (3 R.R. at 50).
Johnican testified that Appellant did not look in the console on the night of
the arrest. (3 R.R. at 52). She testified that she did not believe that Appellant ever
possessed methamphetamine on the night of the arrest. (3 R.R. at 52-53).
Johnican also testified that earlier that night Nichols received a phone call.
(3 R.R. at 55). In response to that call, Johnican, Nicholas, Garcia, and Appellant
went to a house in West Columbia. (3 R.R. at 56). Johnican testified that after
they all left the house in West Columbia that Appellant was upset at Nichols. (3
22
R.R. at 56). Johnican testified that Appellant was upset because Nichols told him
that she was going to West Columbia to pick up money, and that she did not get the
money. (3 RR. at 59). Johnican testified that she and Appellant knew that Nichols
had sold methamphetamine in the past. (3 R.R. at 61-62).
Testimony at Punishment Phase of Trial
Testimony of Carrie Bullard
Appellant called Carrie Bullard, his mother, at the punishment phase of trial.
(4 R.R. at 9-10). She testified that Appellant would be a good candidate for
probation. (4 R.R. at 10). She testified that he is a great father. (4 R.R. at 10).
She testified that Appellant is responsible and family oriented. She called him her
rock. (4 R.R. at 10). She testified that he is a hard worker. (4 R.R. at 11-12).
She testified that he was on parole. (4 R.R. at 16). She testified that in the
past when he was on probation that his probation had been revoked for probation
violations. (4 R.R. at 17-18).
23
APPELLANT’S FIRST POINT OF ERROR
The trial court erred by denying Appellant’s motion to suppress. The officer
who conducted a traffic stop of the vehicle operated by Appellant lacked
reasonable suspicion of any traffic violation or other criminal activity.
Standard of Review and Applicable Law
A reviewing court should apply a bifurcated standard of review to a trial
court’s ruling on a motion to suppress. Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000); State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App.
2013). The reviewing court should give “almost total deference to a trial court's
determination of historical facts and [review] de novo the court's application of the
law of search and seizure.” Carmouche v. State, 10 S.W.3d at 327. “When mixed
questions of law and fact do not depend on the evaluation of credibility and
demeanor,” a reviewing court should review the trial judge’s decision de novo.
Kerwick, 393 S.W.3d at 273.
The Fourth Amendment to the United States Constitution and Article I,
Section 9 of the Texas Constitution provide that people are to be secure in their
persons and effects from unreasonable searches and seizures by the government.
U.S. CONST. AMEND. IV; TEX. CONST. ART. I, § 9.
A defendant who alleges a violation of the Fourth Amendment has the
burden of producing evidence that rebuts the presumption of proper police
24
conduct. State v. Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011). This
burden may be met by establishing that the stop, arrest, or search was warrantless.
Id. at 779. Once the presumption of proper police conduct is rebutted, the burden
shifts to the State to prove the reasonableness of the search or seizure. Id. at 779.
Evidence obtained in violation of the law must be suppressed per the Texas
statutory exclusionary rule and the U.S. Constitutional exclusionary rule. Tex.
Code Crim. Proc. Ann. 38.23 (Lexis Advance current through 2013 3d CS); See
Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (U.S. 1961).
A traffic stop is a seizure for Fourth Amendment purposes. Overshown v.
State, 329 S.W.3d 201, 205 (Tex. App. -- Houston [14th Dist.] 2010, no pet.). For
a traffic stop to be justified at its inception, “an officer must have an objectively
reasonable suspicion that some sort of illegal activity, such as a traffic violation,
occurred, or is about to occur, before stopping the vehicle.” United States v.
Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005); Delafuente v. State, 414 S.W.3d
173, 176-177 (Tex. Crim. App. 2013). Reasonable suspicion means that an “officer
has specific, articulable facts that, taken together with reasonable inferences from
those facts, would lead the officer to reasonably conclude that the person detained
is, has been, or soon will be, engaging in criminal activity.” Delafuente, 414
S.W.3d. at 177.
The Texas Transportation Code provides that it is an offense for an operator
25
of a motor vehicle to fail to maintain a single marked lane:
An operator on a roadway divided into two or more clearly
marked lanes for traffic: (1) shall drive as nearly as practical
entirely within a single lane; and (2) may not move from the
lane unless that movement can be made safely.
Tex. Transp. Code § 545.060(a) (Lexis Advance current through 2013
3d CS).
The Transportation Code also prohibits driving on an improved shoulder
except in certain circumstances:
An operator may drive on an improved shoulder to the right
of the main traveled portion of a roadway if that operation is
necessary and may be done safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of
traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the
main traveled portion of the highway, disabled, or preparing
to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control
device; or
(7) to avoid a collision.
Tex. Transp. Code § 545.058(a) (Lexis Advance current
through 2013 3d CS);
Relevant Facts
Glaspie first saw Appellant's vehicle at 2:25 a.m. He testified that he is more
likely to encounter intoxicated drivers after midnight. (2 R.R. at 14). Glaspie
testified that he saw Appellant's vehicle leave what Glaspie described as a "narcotic
26
house." (2 R.R. at 15). Glaspie testified that methamphetamine was sold from the
house. (2 R.R. at 15).
Glaspie testified that the Appellant’s vehicle swerved in its lane of traffic. (2
R.R. at 15). He testified that he observed the vehicle "violate traffic law, which
was cross a double white line or white line onto the shoulder of the road, fail to
maintain a single lane." (2 R.R. at 15). Glaspie only observed the vehicle cross
the line once. (2 R.R. at 23). Only the passenger side tires of the vehicle crossed
the fog line: no more than six inches of the vehicle crossed the line. (2 R.R. at 24).
The vehicle never crossed the center stripe into oncoming traffic. (2 R.R. at 24).
Analysis
The trial court erred by denying Appellant’s motion to suppress. Glaspie
lacked reasonable suspicion or probable cause to stop Appellant’s vehicle and the
stop was made without a warrant.
Glaspie cited three bases for stopping Appellant’s vehicle: 1) failure to
maintain a single lane (2 R.R. at 15), 2) crossing onto the shoulder (2 R.R. at 15,
20), and 3) a concern that Appellant was intoxicated or had a medical issue (2 R.R.
at 16).
The Stop Was Warrantless
The State stipulated to the warrantless arrest and search. (2 R.R. at 11-12).
The trial court found that the burden was then shifted to the State. (2 R.R. at 12).
27
Glaspie Lacked Reasonable Suspicion or Probable Cause of A Traffic Violation for
Failure to Maintain a Single Lane
One basis that Glaspie cited for stopping Appellant’s vehicle was “failure to
maintain a single lane.” (2 R.R. at 15). Glaspie lacked reasonable suspicion or
probable cause of a traffic violation for failure to maintain a single lane.
The Texas Transportation Code makes it an offense for a person to fail to
“drive as nearly as practical entirely within a single lane.” Tex. Transp. Code §
545.060(a). It is also an offense to move from a lane, “unless that movement can
be made safely.” Id. Without evidence that a lane change is unsafe, a court should
not find that there was a violation of Tex. Transp. Code § 545.060(a). State v.
Houghton, 384 S.W.3d 441, 448 (Tex. App. -- Fort Worth 2012, no pet.).
Glaspie testified that the vehicle never crossed the center stripe. (2 R.R. at
24). Glaspie stopped the vehicle after it crossed the right solid line only once. (2
R.R. at 23). The entire vehicle did not cross the line, only a part of it. (2 R.R. at
23; State’s Exhibit 1 at 00:25). There was no testimony that the driving was
unsafe.
Glaspie’s stop of Appellant’s vehicle for “failure to maintain a single lane”
was unreasonable as it was not grounded in reasonable suspicion or probable cause
of a violation of Texas Transportation Code § 545.060(a).
28
Glaspie Lacked Reasonable Suspicion or Probable Cause of A Traffic Violation for
Driving on an Improved Shoulder
Glaspie testified that he stopped Appellant for “crossing the white line onto
the shoulder of the road.” (2 R.R. at 15). Glaspie lacked reasonable suspicion or
probable cause of a traffic violation for driving on an improved shoulder.
A person may drive a vehicle on an “improved shoulder to the right of the
main traveled portion of a roadway if that operation is necessary and may be done
safely, but only” under certain circumstances. Tex. Transp. Code § 545.058(a).
Among those lawful reasons for a person to drive on an improved shoulder are “to
stop, stand, or park,” “to decelerate before making a right turn,” and “to allow
another vehicle traveling faster to pass.” Tex. Transp. Code § 545.058(a)(1),(3),
and (5).
The Corpus Christi Court of Appeals found that one instance of crossing the
fog line did not amount to driving on the shoulder in violation of §545.058(a).
Scardino v. State, 294 S.W.3d 401, 406 (Tex. App. -- Corpus Christi 2009, no pet.).
In Scardino, the arresting officer cited Tex. Transportation Code §
545.060(a)(failure to maintain lane) as the basis of his stop. Id. at 404. The State
argued that there was also a violation of § 545.058(a). Id. at 406. At the
suppression hearing, the arresting officer testified “the driver crossed the fog line,
he steered back to get back in his lane.” Id. at 403. On cross-examination, the
29
officer agreed that all of the driving facts occurred within Scardino’s lane, “with
the exception of crossing over the fog line one time”. Id. at 404. The court found
that officer’s description of the defendant’s driving did not amount to a violation of
§545.060(a). Id. at 406.
The driving facts in Appellant’s case regarding the crossing of the fog line
are almost identical to those in Scardino. Glaspie testified that Appellant only
crossed the solid line once and that this was the basis of the traffic stop. (2 R.R. at
15, 23-24). A review of the video of the stop shows that immediately upon a part
of Appellant’s vehicle (approximately half) crossing the right hand solid white line,
Glaspie activated his signals for Appellant to stop. (State’s Exhibit 1 at 00:25).
Appellant’s vehicle quickly returned to the lane of traffic, and then pulled over.
(State’s Exhibit 1 00:25 – 00:35). The officer in Scardino testified that the
defendant’s vehicle only crossed the fog line once, and then returned to his lane of
traffic. Scardino, 294 S.W.3d at 403-404. The court in Scardino found that a
vehicle crossing the solid line once and returning to a lane of traffic did not amount
to driving on the shoulder. Similar to the defendant in Scardino, Appellant did not
drive his vehicle on the shoulder. Appellant’s vehicle crossed the solid line once,
returned to his lane, then pulled completely on to the shoulder as Glaspie had
activated his overhead lights.
Appellant recognizes that other courts of appeals have applied § 545.058
30
differently. State v. Dietiker, 345 S.W.3d 426 (Tex. App. Waco 2011, no pet.);
Maldonado v. State, No. 04-12-00228-CR (Tex. App. -- San Antonio May 15,
2013, pet. ref’d)(memo. op., not designated for publication).
In an unpublished opinion, the Fifth Circuit Court of Appeals found that as
“Texas law explicitly permits a vehicle operate to drive on an improved shoulder
for a variety of purposes so long as ‘the operation is necessary and may be done
safely’,” that “driving on an improved shoulder, without more” is not a valid basis
for a traffic stop. United States v. Benavides, 291 Fed. Appx. 603, 607 (5th Cir.
Tex. 2008).
The Court of Criminal Appeals held that the “the offense of illegally driving
on an improved shoulder can be proved in one of two ways: either driving on the
improved shoulder was not a necessary part of achieving one of the seven
approved purposes, or driving on the improved shoulder could not have been done
safely.” Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim. App. 2012). In Texas
Transportation Code § 545.058, “the legislature explicitly made certain behavior
legal. It would violate legislative intent to allow that behavior to serve as the basis
of a traffic stop or arrest.” Id. The intermediate court had found that “driving on an
improved shoulder, regardless of circumstance, is prima facie evidence of an
offense” and that the statute established defenses that may be raised at trial. Id. at
189. The Court of Criminal Appeals disagreed and held that §545.058 does not
31
create a “shifting-burden, self-defense-style framework” requiring a defendant to
prove that he was complying with the law. Id. at 192.
A review of the video shows that Glaspie activated his overhead lights
immediately upon Appellant crossing the line. (State’s Exhibit 1 at 00:25).
Appellant’s vehicle crossed over the fog line immediately before an intersection on
the highway. Appellant’s vehicle may have been moving to the right to exit the
highway. (State’s Exhibit 1 at 00:25). Driving on the shoulder to decelerate
before making a right hand turn is legal. Tex. Transp. Code § 545.058(a)(3).
Appellant may also have been moving on to the shoulder to permit Glaspie’s
vehicle to pass his, which is also a legal use of the shoulder for driving. Tex.
Transp. Code § 545.058(a)(5). Officer Glaspie observed Appellant drive in a way
that is explicitly permitted by statute and initiated the stop of Appellant’s vehicle
before determining whether the driving was for a purpose allowed by the statute.
Glaspie’s testimony never established that Appellant’s movement over the
white line was unsafe. Glaspie’s testimony also never addressed his investigation
of the possible reasons for Appellant’s driving that would have been legal under
§545.058(a)(1)-(7). See Lothrop, 372 S.W.3d at 191.
At the time that Glaspie activated his overhead lights and initiated a traffic
stop of Appellant, he did not have reasonable suspicion or probable cause that
Appellant had violated Texas Transportation Code § 545.058(a). For seven reasons
32
listed in the statute, it is not against the law to drive on an improved shoulder.
Glaspie did not determine if Appellant was doing something lawful or unlawful
before activating his lights and initiating the traffic stop. Furthermore, as
interpreted by at least one Texas court of appeals, Appellant did not drive on the
shoulder. Scardino v. State, 294 S.W.3d at 406.
Glaspie’s stop of Appellant for “crossing the white line onto the shoulder of
the road” was unreasonable and not ground in reasonable suspicion or probable
cause of a violation of Texas Transportation Code § 545.058(a).
Glaspie Lacked Reasonable Suspicion That Appellant Was Intoxicated
Glaspie testified that he believed Appellant to be intoxicated or having a
“medical issue.” (2 R.R. at 16). He testified that he stopped the vehicle to
perform a DWI investigation. (2 R.R. at 16). The State argued in closing that
swerving within a lane of traffic, after leaving a “drug house,” at two o’clock in the
morning were sufficient facts to cause Glaspie to suspect that Appellant was
involved in criminal activity: “if he was not driving while intoxicated having left
from a drug house, [he] was involved perhaps in some drug activity.” (2 R.R. at
35).
Glaspie lacked reasonable suspicion that the driver of the vehicle was
intoxicated. Glaspie’s statement that he was familiar with the house as one where
drugs were sold was not a “specific, articulable fact.” The statement combined
33
with Appellant’s driving and the time was not sufficient to warrant a stop of
Appellant’s vehicle.
An officer may stop a vehicle, without observing a traffic violation, when
“the officer has specific, articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably conclude that a
particular person actually is, has been, or soon will be engaged in criminal
activity.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The facts
must be sufficiently articulated for the trial court and reviewing court to subject the
detention to “detached, neutral scrutiny… [of] the reasonableness of a particular
search or seizure in light of the particular circumstances.” Id. at 493. In conducting
a reasonable suspicion analysis, a court must consider the totality of the
circumstances. Id. at 492-493.
Glaspie testified that he was familiar with 440 West Brazos Avenue, the
house that he saw Appellant’s vehicle leave. (2 R.R. at 15). He testified that the
address was a “narcotic house.” (2 R.R. at 15). Glaspie testified that “they sell
methamphetamines from that house.” (2 R.R. at 15).
Glaspie’s assertion that 400 West Brazos was a narcotic house where
methamphetamine was sold is a not an articulable fact that would allow a court to
conduct a “detached, neutral scrutiny” of the officer’s belief. See Ford, 158
S.W.3d at 493. Beyond his statement that “we have received information,” Glaspie
34
did not provide the trial court with any fact to support his contention that 440 West
Brazos was a place where drugs were sold. He does not state who received the
information, where the information came from, or what the information was.
There is no information about how long ago Glaspie, or other officers, may have
received information relevant to narcotics sales at the house in relation to the stop
of Appellant’s vehicle. There is no way of knowing, based on Glaspie’s statement,
whether one person sold drugs from the house two years ago, or whether the police
had ongoing active drug sales being monitored from the address. As such,
Glaspie’s statements are not supportive of reasonable suspicion. Furthermore, a
vehicle making a brief stop at a house where there is a suspicion of narcotics
activity does not suffice for reasonable suspicion to stop that vehicle. Young v.
State, 133 S.W.3d 839 (Tex. App. -- El Paso 2004, no pet.).
Even if this Court finds that the trial court would not have erred by
considering Glaspie’s statement about 400 West Brazos being a place where
methamphetamine is sold, there is not testimony that established or inferred that
people consumed methamphetamine at that address.
Glaspie’s statement that what he observed of Appellant’s driving gave him
reason to be concerned that Appellant was intoxicated was also a conclusory
opinion, not supported by articulable fact.
In considering whether an officer had reasonable suspicion to stop a vehicle
35
for suspicion of intoxicated driving, absent a traffic violation, courts have looked to
1) the officer’s experience; 2) the officer’s specific training in detecting intoxicated
drivers; 3) whether it was part of the officer’s training that weaving or swerving
was a possible indication of intoxication; 5) the amount of weaving compared to
the distance driven, 6) other bad driving; 7) location of driving relative to places
serving alcohol, and 8) time of day. Curtis v. State, 238 S.W.3d 376, 380 (Tex.
Crim. App. 2007); Foster v. State, 326 S.W.3d 609, 612-614 (Tex. Crim. App.
2010). Appellant recognizes that this is not an exhaustive list of factors. Applying
these considerations to Appellant’s case, this Court should find that Glaspie failed
to articulate facts that amounted to reasonable suspicion to stop Appellant for a
driving while intoxicated.
Glaspie testified that intoxicated drivers are more likely to be encountered
after midnight. (2 R.R. at 14). The stop was conducted at approximately two
o’clock in the morning. (2 R.R. at 12). Glaspie described Appellant’s driving as
“swerving in his lane of traffic. He didn’t cross the line. He was swerving.” (2
R.R. at 15). Based on these factors, Glaspie testified that Appellant’s driving gave
him cause for concern that Appellant was intoxicated.
He did not testify about what experience or training qualified him to discern
that Appellant might have been intoxicated. He did not testify about how far he
followed Appellant, how long Appellant drove, or how long Appellant swerved
36
within his lane. Glaspie had worked for West Columbia Police Department for six
years. (2 R.R. at 13). He did not testify about any specific training he might have
received regarding the detection of intoxicated drivers.
The hollow assertion that Appellant left a narcotic house, at two o’clock in
the morning, combined with some swerving within his lane of traffic and one cross
over a line on to an improved shoulder does not amount to reasonable suspicion of
criminal conduct.
Glaspie gave the trial court conclusions and opinions without articulating
specific facts to support his beliefs. He did not testify to “specific, articulable facts
that, when combined with rational inferences from those facts, would lead him to
reasonably conclude that a particular person actually is, has been, or soon will be
engaged in criminal activity.” Ford, 158 S.W.3d at 492. As such, Glaspie lacked
reasonable suspicion that Appellant was engaged in unspecified criminal conduct,
or specifically driving while intoxicated.
Suppression
All evidence obtained in violation of the Constitution is inadmissible. Mapp
v. Ohio, 367 U.S. 643, 655 (U.S. 1961). Texas codified the exclusionary rule,
prohibiting admission of all evidence obtained in violation of the Constitution, or
the laws of the State of Texas, or the United States. Tex. Code Crim. Proc. Ann.
Art. 38.23.
37
The substances in the vehicle were found on account of a search of
Appellant’s vehicle. (2 R.R. at 9; State’s Exhibit 1 at 45:00). The search would
not have occurred but for the unlawful traffic stop of Appellant’s vehicle. Under
both the Fourth Amendment and Article 38.23, the evidence obtained in the search
of Appellant’s vehicle should be suppressed.
Harm
The error complained of in Appellant’s first point of error is a violation of
the Fourth Amendment of the United States Constitution. As it is constitutional
error, it is subject to review under Texas Rule of Appellate Procedure 44.2(a),
which requires reversal unless “the court determines beyond a reasonable doubt
that the error did not contribute to conviction or punishment.” TEX. R. APP. PROC.
44.2(A).
If this Court finds that the Fourth Amendment does not necessitate
suppression, but that article 38.23 would require suppression, and if this Court
applies a harm analysis per Texas Rule of Appellate Procedure 44.2(b), the result
of the harm analysis is the same. TEX. R. APP. PROC. 44.2(B). A harm analysis
under 44.2(b) is done by determining whether the error had a “substantial and
injurious effect or influence in determining the… verdict.” King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997).
In the present case, the admission into evidence of the controlled substances
38
that were found in the vehicle, on account of the unlawful seizure, resulted in
Appellant’s conviction. If the controlled substances found in the vehicle were
excluded from evidence, there would be no evidence that Appellant possessed a
controlled substance. The error was harmful and had a substantial and injurious
effect or influence in determining the verdict.
The trial court erred by denying Appellant’s motion to suppress. Glaspie
lacked reasonable suspicion or probable cause that Appellant had committed a
traffic violation. He lacked reasonable suspicion that Appellant was intoxicated, or
was otherwise engaged in criminal activity. Glaspie found the substance which
forms the basis of the conviction in this cause only because of the illegal stop of
Appellant. Had the stop not occurred, Glaspie would not have discovered the
controlled substances in the vehicle Appellant was driving.
Appellant prays that this Court find that all evidence found as a result of the
traffic stop be suppressed and reverse the decision of the trial court on Appellant’s
motion to suppress. Appellant prays that this Court reverse the judgment of the
trial court.
39
APPELLANT’S SECOND POINT OF ERROR
The trial court erred by denying Appellant’s motion to suppress. The
detention of Appellant was unreasonably prolonged past the time reasonably
necessary to satisfy the purpose of the traffic stop. The continued detention of
Appellant after warrant checks were complete, and alternatively, once the
passenger with warrants in the vehicle was arrested, was an unreasonable seizure.
Standard of Review and Applicable Law
The Fourth Amendment to the United States Constitution and Article I,
Section 9 of the Texas Constitution provide that people are to be secure in their
persons and effects from unreasonable searches and seizures by the government.
U.S. CONST. AMEND. IV; TEX. CONST. ART. I, § 9.
A defendant who alleges a violation of the Fourth Amendment has the
burden of producing evidence that rebuts the presumption of proper police
conduct. Robinson, 334 S.W.3d at 778-779. This burden may be met by
establishing that the stop, arrest, or search was warrantless. Id. at 779. Once the
presumption of proper police conduct is rebutted, the burden shifts to the State to
prove the reasonableness of the search or seizure. Id. at 779.
If a traffic stop is justified at its inception, “detention must be temporary and
last no longer than is necessary to effectuate the purpose of the stop.” Lopez-
Moreno, 420 F.3d at 430. During a traffic stop, an officer may “examine driver’s
40
license and registration,” “run a computer check [on the vehicle’s occupants] to
investigate whether the driver has any outstanding warrants and if the vehicle is
stolen,” and “ask the driver about the purpose and itinerary of his trip.” Id. at 431.
The purpose of these inquires should be to ensure “that vehicles on the road are
operated safely and responsibly.” Rodriguez v. United States, 135 S. Ct. 1609,
1615, 191 L. Ed. 2d 492, 499 (U.S. 2015). The traffic stop must end “once an
officer's initial suspicions have been verified or dispelled… unless there is
additional reasonable suspicion supported by articulable facts." United States v.
Powell, 732 F.3d 361, 369 (5th Cir. Tex. 2013).
Evidence obtained in violation of the law must be suppressed per the Texas
statutory exclusionary rule and the U.S. Constitutional exclusionary rule. Tex.
Code Crim. Proc. Ann. 38.23; See Mapp v. Ohio, 367 U.S. 643.
Relevant Facts
Glaspie testified that Appellant, the driver of the vehicle, was agitated,
fidgety, and irritated. (2 R.R. at 16). Glaspie believed Appellant to either be
intoxicated or trying to hide something. (2 R.R. at 22). Glaspie had a warrant
check conducted for all of the vehicle's occupants. (2 R.R. at 16).
Glaspie testified that he backed up his patrol car for the administration of the
standardized field sobriety tests. (2 R.R. at 26). He had Appellant step out of his
car and administered the HGN test on Appellant. (2 R.R. at 16, 26). After
41
administering the HGN test, Glaspie concluded that Appellant was not intoxicated.
(2 R.R. at 28).
The warrant check returned that one of the passengers had an outstanding
parole warrant. (2 R.R. at 17). Glaspie received this information approximately 24
minutes after the stop began. (State’s Exhibit 1 at 24:45). Upon learning that a
passenger had an outstanding warrant, he did not arrest the passenger; instead, he
requested a BCSO unit be dispatched to his location. (2 R.R. at 17; State’s Exhibit
1 at 25:15). He testified that he “had to get a deputy to back [him] up to get the
first person out of the vehicle.” (2 R.R. at 25). He testified that he requested back
up “because the warrant was for -- I believe it was assault and battery or something
to that effect with a firearm.” (2 R.R. at 17).
The other officer arrived at the scene approximately 33 minutes after the
inception of the stop. (2 R.R. at 25-26; State’s Exhibit 1 at 33:14). After the
passenger was arrested, Glaspie asked for consent to search the vehicle. (2 R.R. at
17-18; State's Exhibit 1 at 39:45).
Analysis
The trial court erred by denying Appellant’s motion to suppress on the
ground that the detention of Appellant was unlawfully and unreasonably delayed.
At argument on the motion to suppress, Appellant’s counsel moved for the
suppression of all evidence obtained after the administration of the HGN test, when
42
Glaspie determined that Appellant was not impaired, on the basis that any further
detention was unlawful.. (2 R.R. at 33).
If this court finds that the traffic stop was justified at its inception, then this
Court should determine whether “the detention last[ed] no longer than [was]
necessary to effectuate the purpose of the stop.” Lopez-Moreno, 420 F.3d at 430.
Appellant concedes that case law establishes that an officer may wait a reasonable
amount of time for computer checks of warrants to be completed, even if that time
was longer than reasonably necessary to administer the HGN test. Lopez-Moreno,
420 F.3d at 431. Once the warrant check was complete, it revealed that one of the
passengers had a warrant. (2 R.R. at 17-18, 27; State’s Exhibit 1 at 24:45).
Appellant contends that once Glaspie determined that Appellant was not driving
impaired and did not himself have a warrant, the purpose of the stop had been
dispelled. The detention of Appellant after the HGN test was administered and the
warrant check was complete was unreasonable and violative of the Fourth
Amendment.
Glaspie stopped Appellant for two traffic offenses and a suspicion of driving
while intoxicated. (2 R.R. at 15-16). About five minutes into the stop Glaspie
requested a warrant check on three of the occupants of the vehicle. (State’s Exhibit
1 at 5:30). He requested a warrant check on Nichols approximately twenty-two
minutes into the stop. (State’s Exhibit 1 at 22:13). Glaspie conducted the HGN
43
test on Appellant, and determined that he was not impaired. (2 R.R. at 28). The
HGN test was administered and completed twenty minutes into the traffic stop.
(State’s Exhibit 1 at 18:40 to 20:10). Approximately twenty-five minutes into the
stop, the warrant checks returned indicating that one passenger had a warrant. (2
R.R. at 17; State’s Exhibit 1 at 24:45).
Glaspie testified that he called for backup “because the warrant was for…
assault and battery or something to that effect with a firearm.” (2 R.R. at 17). He
testified that he intended to wait for backup to take the passenger into custody. (2
R.R. at 17).
The State failed to establish at the suppression hearing why it was
reasonable to continue to detain Appellant so that Glaspie would have backup to
arrest the passenger with a warrant. Glaspie did not testify as to why it was
necessary to wait for another officer to appear for Glaspie to arrest the passenger.
The State did not argue to the trial court why it was necessary to continue to detain
Appellant while waiting for another officer to arrest the passenger.
If this Court finds that the continued detention of Appellant so that Glaspie
could wait for the BCSO deputy to assist in arresting the passenger was reasonable
under the Fourth Amendment, then this Court should find that the continued
detention of Appellant after the passenger’s arrest was unlawful.
The passenger was arrested approximately thirty-four minutes after the
44
traffic stop began. (State’s Exhibit 1 at 34:00). Glaspie continued to detain
Appellant on the side of the road for another five and a half minutes before
approaching Appellant and asking for consent to search the vehicle. (State’s
Exhibit 1 at 39:45).
Once the passenger was arrested, every purpose of the original traffic stop
had been dispelled. Glaspie had sufficient time to issue any warning or citation for
traffic violations. He had already determined that Appellant was not driving
impaired. (2 R.R. at 33). As soon as the passenger was arrested, Glaspie should
have released Appellant. See Lopez-Moreno, 420 F.3d at 430-431; Powell, 732
F.3d at 369. Instead, Glaspie continued to detain Appellant on the side of the road.
(State’s Exhibit 1 at 34:00).
More than five minutes passed from the time of the passenger’s arrest before
Glaspie asked Appellant for consent to search the vehicle. (State’s Exhibit 1 at
39:45). Appellant consented. (State’s Exhibit 1 at 39:45). The illegal substances
that formed the basis of the conviction in this cause were found in the vehicle
during the search. (State’s Exhibit 1 at 45:20).
Glaspie did not testify to any fact that justified continuing Appellant’s
detention on the roadside after the passenger’s arrest. Glaspie did not testify
regarding any fact that he learned that would have created additional reasonable
suspicion of criminal activity. See Powell, 732 F.3d at 369.
45
The State argued at the motion to suppress hearing that the delay between
the passenger’s arrest and Glaspie’s request for consent was reasonable because “in
any other traffic stop within two or three minutes of the stop it would not be
unreasonable to ask for such consent.” (2 R.R. at 35-36). The State’s argument
fails in that it is measuring the reasonableness of time from the arrest of the
passengers instead of the inception of the traffic stop. The argument further fails,
in that the original purpose of the traffic stop had been dispelled, and the State
failed to establish any new reasonable suspicion to justify a continued delay of
Appellant. See Lopez-Moreno, 420 F.3d at 430-431. As the United States
Supreme Court recently held, any delay that exceeds what is reasonably necessary
to effectuate the original purpose of the stop, and is not “supported by
individualized suspicion” violates the Fourth Amendment. Rodriguez, 135 S. Ct. at
1616.
If this Court finds that the traffic stop was justified at the inception of the
stop, then this Court should find that the Appellant was unlawfully detained when
Glaspie prolonged the traffic stop longer than what was necessary to effectuate the
purpose of the stop. See Lopez-Moreno, 420 F.3d at 430. This Court should find
that the State failed to prove that it was reasonable for Glaspie to continue to detain
Appellant after the warrant check was complete. If this Court finds that it was
reasonable for Glaspie to continue to detain Appellant to wait for assistance to
46
arrest the passenger with warrants, this Court should find that any length of
detention after the passenger was arrested was unreasonable and violative of the
Fourth Amendment.
Consent
The State may argue that Appellant’s consent obviates any possible Fourth
Amendment violation. Consent to search may dissipate a Fourth Amendment
violation, but it does not necessarily do so. United States v. Chavez-Villarreal, 3
F.3d 124, 127 (5th Cir. Tex. 1993). Even if voluntarily given, “consent does not
remove the taint of an illegal detention if it is the product of that detention and not
an independent act of free will.” Id. at 127-128. A reviewing court should consider
“(1) the temporal proximity of the illegal conduct and the consent; (2) the presence
of intervening circumstances; and (3) the purpose and flagrancy of the initial
misconduct.” Id. at 128; Pineda v. State, 444 S.W.3d 136, 144 (Tex. App. -- San
Antonio 2014, pet. ref’d)
An application of these factors to Appellant’s case weighs in favor of a
finding that Appellant’s consent was a product of the unlawful detention and not an
independent act of his own free will. As to the first factor, “the temporal proximity
of the illegal conduct and the consent,” the stop occurred almost 35 minutes before
the request for consent, but the detention was unlawfully extended throughout the
course of the detention. Pineda, 444 S.W.3d at 144. The complained of illegal
47
conduct is the extended detention, which had a growing deleterious effect on
Appellant’s will as it continued. As to the second factor, the record shows no
intervening circumstances that would have “lessened the taint of the unlawful stop”
or made Appellant feel free to leave. Id. at 144. The circumstances actually were
worsened: Appellant was frisked, he was subject to field sobriety tests, Appellant’s
passenger was arrested and Appellant was told by Glaspie that the passenger was
going back to prison. (State’s Exhibit 1 at 17:36 to 20:10, 36:16). The third factor
also weighs in Appellant’s favor, as Glaspie’s purpose was obviously to fish for
some narcotics violation, though Glaspie did not articulate any facts supporting
newly developed reasonable suspicion on the record. Glaspie approached the
passengers of the vehicle after the first passenger’s arrested and asked them if there
was “anything else” in the car. (State’s 1 at 36:25). Glaspie then asked Appellant if
there was anything in the car that he shouldn’t have. (State’s Exhibit 1 at 39:36).
On his way to search the car, Glaspie commented that “Brazoria is real familiar
with [Nichols], they say she’s either going to have dope or pills on her.” (State’s
Exhibit 1 at 39:55).
Applying the factors in Chavez-Villarreal, Appellant’s consent was a product
of the continued illegal detention and Glaspie’s actions during the detention,
including but not limited to performing the HGN test on Appellant, frisking
Appellant, Glaspie questioning Appellant and the vehicle’s passengers after the
48
passenger’s arrest, and comments to Appellant about the passenger going to prison.
Appellant’s consent was not an act of free will and was therefore not
constitutionally valid.
Suppression
All evidence obtained in violation of the Constitution is inadmissible. Mapp
v. Ohio, 367 U.S. 643, 655 (U.S. 1961). Texas has codified the exclusionary rule,
prohibiting admission of all evidence obtained in violation of the Constitution, or
the laws of the State of Texas, or the United States. Tex. Code Crim. Proc. Ann.
Art. 38.23.
The substances in the vehicle were found on account of a search of
Appellant’s vehicle. (2 R.R. at 9; State’s Exhibit 1 at 45:00). The search would
not have occurred but for the unlawful prolonging of Appellant’s detention by
Glaspie. Under both the Fourth Amendment and Article 38.23, the evidence
obtained in the search of Appellant’s vehicle should be suppressed.
Harm
The error complained of in Appellant’s second point of error is a violation of
the Fourth Amendment of the United States Constitution. As it is constitutional
error, it is subject to review under Texas Rule of Appellate Procedure 44.2(a),
which requires reversal unless “the court determines beyond a reasonable doubt
that the error did not contribute to conviction or punishment.” TEX. R. APP. PROC.
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44.2(A).
If this Court finds that the Fourth Amendment does not necessitate
suppression, but that article 38.23 would require suppression, and if this Court
applies a harm analysis per Texas Rule of Appellate Procedure 44.2(b), the result
of the harm analysis is the same. TEX. R. APP. PROC. 44.2(B). A harm analysis
under 44.2(b) is done by determining whether the error had a “substantial and
injurious effect or influence in determining the… verdict.” King, 953 S.W.2d at
271.
In the present case, the admission into evidence of the controlled substances
that were found in the vehicle, on account of the unlawful seizure, resulted in
Appellant’s conviction. If the controlled substances found in the vehicle were
excluded from evidence, there would be no evidence that Appellant possessed a
controlled substance. The error was harmful and had a substantial and injurious
effect or influence in determining the verdict.
The trial court erred by denying Appellant’s motion to suppress. Glaspie
stopped Appellant for a traffic violation or suspicion of intoxication. Once the
purpose of the traffic stop was dispelled, and Glaspie completed the warrant checks
on the occupants of the vehicle, any further delay in releasing Appellant was
unlawful. Appellant’s eventual consent to a search of the vehicle was a product of
the unlawfully prolonged detention, not a product of Appellant’s free will. Glaspie
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unlawfully prolonged the detention of Appellant to continue to fish for evidence of
a narcotics violation, even though he could not and did not articulate facts to
support his hunch in his testimony at the suppression hearing.
Appellant prays that this Court find that all evidence found as a result of the
unlawfully prolonged detention of Appellant be suppressed and reverse the
decision of the trial court on Appellant’s motion to suppress. Appellant prays that
this Court reverse the judgment of the trial court.
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APPELLANT’S THIRD POINT OF ERROR
If this Court finds that the trial court erred by denying Appellant’s motion to
suppress, this Court should find that the evidence remaining, after excluding the
suppressible evidence, is legally insufficient to sustain the conviction against
Appellant for possession of a controlled substance.
Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, the reviewing court must
view all of the evidence in the light most favorable to the verdict to determine
whether the finder of fact was rationally justified in finding guilt beyond a
reasonable doubt. Pomier v. State, 326 S.W.3d 373, 378 (Tex. App. -- Houston
[14th] 2010, no pet.). The reviewing court does not sit as a thirteenth juror and
may not substitute its judgment for that of the fact finder by re-evaluating the
weight and credibility of the evidence. Id. The court must defer to the fact finder's
resolution of conflicting evidence unless the resolution is not rational. Id. The
reviewing court has a duty to ensure that the evidence presented actually supports a
conclusion that the defendant committed the crime. Id.
Where a reviewing court finds that a trial court should have suppressed
evidence, and the remaining evidence is legally insufficient to support a
conviction, the reviewing Court may reverse the conviction and render a judgment
of acquittal. See Bass v. State, 64 S.W.3d 646, 651 (Tex. App. -- Texarkana 2001,
52
pet. ref’d.).
Relevant Facts
Appellant was convicted of possession of a controlled substance, penalty
group one, one to four grams of methamphetamine. (1 C.R. at 5, 47). The
methamphetamine that was found in his vehicle was discovered as a result of the
stop and seizure complained of in Appellant’s First and Second Points of Error.
Glaspie found the controlled substance alleged in the indictment in the
vehicle driven by Appellant. The substance was found during the search conducted
after Garcia was arrested. (3 R.R. at 7-9).
Analysis
If this Court finds that the trial court erred by denying Appellant’s motion to
suppress, then this Court should find that the evidence that remains after excluding
the suppressible evidence is legally insufficient to support a conviction for
possession of a controlled substance.
The controlled substance that forms the basis of the prosecution in this case
was found in the vehicle operated by Appellant. (2 R.R. at 9; 3 R.R. at 9-10;
State’s Exhibit 1 at 45:00). The substance was not found until after Garcia had
been arrested. (3 R.R. at 7-9; State’s Exhibit 1 at 45:00).
Two elements of the offense of possession of a controlled substance are 1)
possession and 2) controlled substance. Tex. Health & Safety Code §481.115
53
(Lexis Advance current through 2013 3d CS); Seals v. State, 187 S.W.3d 417, 419
(Tex. Crim. App. 2005). If this Court finds that the evidence obtained as a result of
the stop, or evidence obtained as a result of the unlawful detention, should be
suppressed, then this Court should necessarily find that the evidence of controlled
substances in Appellant’s vehicle should be suppressed.
If this Court finds that evidence of the controlled substances found in
Appellant’s vehicle should be suppressed, then there is no evidence remaining that
Appellant possessed the controlled substance alleged in the indictment. As the
remaining evidence cannot support a finding beyond a reasonable doubt that
Appellant possessed a controlled substance, this Court should also find that the
remaining evidence is legally insufficient.
Where a reviewing court finds that a trial court should have suppressed
evidence, and the remaining evidence is legally insufficient to support a
conviction, the reviewing Court may reverse the conviction and render a judgment
of acquittal. See Bass v. State, 64 S.W.3d at 651.
Wherefore, Appellant prays that this Court find that the trial court erred by
denying Appellant’s motion to suppress. Appellant further prays this Court find
that the evidence of the offense of possession of a controlled substance remaining,
after excluding the suppressible evidence, is legally insufficient to support a
conviction for the indicted offense. The Appellant prays that this Court reverse the
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judgment of conviction and render a judgment of acquittal in this cause.
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APPELLANT’S FOURTH POINT OF ERROR
The trial court was not rationally justified in finding beyond a reasonable
doubt that Appellant possessed a controlled substance as alleged in the indictment.
Deferring to the trial court’s rational resolution of conflicting evidence, the
evidence admitted at trial did not support a conclusion that Appellant committed
possession of a controlled substance.
Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, the reviewing court must
view all of the evidence in the light most favorable to the verdict to determine
whether the [finder of fact] was rationally justified in finding guilt beyond a
reasonable doubt. Pomier, 326 S.W.3d at 378. The reviewing court does not sit as
a thirteenth juror and may not substitute its judgment for that of the fact finder by
re-evaluating the weight and credibility of the evidence. Id. The court must defer to
the fact finder's resolution of conflicting evidence unless the resolution is not
rational. Id. The reviewing court has a duty to ensure that the evidence presented
actually supports a conclusion that the defendant committed the crime. Id.
The elements of possession of a controlled substance are “that the defendant
knowingly or intentionally possessed a controlled substance.” Seals, 187 S.W.3d
at 419; Tex. Health & Safety Code §481.115
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Relevant Facts
Appellant was driving a vehicle that was stopped by Glaspie around two
o’clock in the morning. (2 R.R. at 12). Glaspie watched the vehicle leave a house
that he described as a narcotics house, where methamphetamine was sold. (2 R.R.
at 15). Glaspie described Appellant as agitated and irritated. (3 R.R. at 6). There
were a total of four people in the vehicle, including Appellant. (3 R.R. at 19-20).
Glaspie instructed Appellant to step out of the vehicle and Appellant
complied. (2 R.R. at 16; State’s Exhibit 1 at 16:28). Appellant stood on the side of
the road while Glaspie conducted the HGN test, the warrant checks, waited on
backup, and arrested Garcia. (State’s Exhibit 1 at 16:28 to 39:45). During this
time, the other three occupants of the vehicle were in the car, and partially
obscured from Glaspie’s view, for approximately eighteen minutes. (State’s
Exhibit 1 at 16:28 to 34:00).
After he arrested Garcia, Glaspie searched the vehicle. (3 R.R. at 7-9). In
the front passenger side of the vehicle he found a Crown Royal makeup bag that
contained a pipe commonly used for consuming illegal substances. (3 R.R. at 8).
He found another Crown Royal bag in the passenger side floorboard, which also
contained a pipe. (3 R.R. at 8). He found a prescription pill bottle containing pills.
(3 R.R. at 9). He opened the center console and found three bags containing a
substance he suspected to be methamphetamine. (3 R.R. at 9-10). He also found
57
four bags containing rolling papers. (3 R.R. at 9). After finding the crystalized
substance, Glaspie arrested Appellant and the front seat passenger, then continued
the search. (3 R.R. at 10). Glaspie then found a small bag of a synthetic
cannabinoid in the center console. (3 R.R. at 10).
Johnican testified that after Glaspie removed Appellant from the car, Nichols
reached across the driver’s seat and felt in the door pocket, then put her hands back
in her lap. (3 R.R. at 48-50). Johnican also testified that Nichols said that “she had
two sacks.” (3 R.R. at 50). Nichols opened the center console and closed it. (3
R.R. at 50). Nichols told Johnican that she put methamphetamine in the center
console. (3 R.R. at 67).
As the officers approached the vehicle to search it, Glaspie told the BCSO
deputy that Nichols could be expected to have “dope or pills on her.” (State’s
Exhibit 1 at 39:55).
Analysis
Viewing all of the evidence in a light most favorable to the verdict, and
deferring to the trial court’s rational resolution of any conflicting evidence, the
evidence admitted at trial was legally insufficient to support Appellant’s conviction
for possession of the controlled substance as alleged in the indictment.
A conviction for possession of a controlled substance requires proof that “(1)
the accused exercised control, management, or care over the substance; and (2) the
58
accused knew the matter possessed was contraband.” Poindexter v. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005). A reviewing court conducting a legal
sufficiency analysis of a possession of a controlled substance conviction where
“the accused is not in exclusive possession of the place where the substance is
found” should determine whether “there are additional independent facts and
circumstances which affirmatively link the accused to the contraband.” Id. at 406.
The non-exhaustive list of affirmative links that Texas courts look to when
analyzing a possession case such as Appellant’s are:
(1) the defendant's presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant's proximity to
and the accessibility of the contraband; (4) whether the defendant
was under the influence of narcotics when arrested; (5) whether the
defendant possessed other contraband when arrested; (6) whether the
defendant made incriminating statements when arrested; (7) whether
the defendant attempted to flee; (8) whether the defendant made
furtive gestures; (9) whether there was an odor of contraband; (10)
whether other contraband or drug paraphernalia were present; (11)
whether the defendant owned or had the right to possess the place
where the drugs were found; (12) whether the place where the drugs
were found was enclosed; (13) whether the defendant was found with
a large amount of cash; and (14) whether the conduct of the
defendant indicated a consciousness of guilt.
Torres v. State, 466 S.W.3d 329, 332 (Tex. App. -- Houston [14th
Dist.] 2015, no pet.)
Applying these factors to Appellant’s case, the number and weight of the
affirmative links does not tie Appellant to the controlled substances in the
center console of the vehicle. First, Appellant was present on the scene when
the vehicle was searched, but he had been outside of the car for over twenty
59
minutes once the search began. (State’s Exhibit 1 at 16:28 to 40:30). Second,
the contraband was not in plain view, it was found in the closed center console.
(3 R.R. at 9-10). Third, the Appellant had no access to the center console for
more than twenty minutes before the search. On the other hand, the other three
occupants of the vehicle had access to the center console for almost eighteen
minutes while Appellant was standing on the side of the road. (State’s Exhibit
1 at 16:28 to 34:00). After Garcia was arrested, the other two occupants
continued to have access to the center console, while Appellant stood on the
side of the road. (State’s Exhibit 1 at 34:00 to 40:30). Fourth, Appellant was
not impaired when the car was stopped. (2 R.R. at 33). As to the fifth and
tenth factors, there was other contraband found in the car, but none in the
exclusive possession of the Appellant or on his person. (3 R.R. at 8-10). Sixth,
the Appellant made no incriminating statements. Seventh, the Appellant did
not attempt to flee, but instead complied with the HGN test and stood on the
side of the road for almost thirty minutes before he was arrested. (State’s
Exhibit 1 at 16:28 to 45:20). Applying the eighth factor, furtive gestures,
Glaspie testified that Appellant was agitated, fidgety, and irritated. (2 R.R. at
16). He did believe that Appellant was trying to hide something. (2 R.R. at
22). Applying the ninth factor, Glaspie did not testify about any incriminating
odor. As to the eleventh factor, Appellant had rented the car and had the right
60
to posses it. (3 R.R. at 45). Twelfth, the substance was found in a closed center
console. (3 R.R. at 9). Thirteenth, Glaspie did not testify about finding any
amount of cash in the vehicle. Finally, Appellant’s conduct did not indicate a
consciousness of guilt. He complied with Glaspie’s orders, he waited on the
roadside, and consented to a search of his vehicle.
Taken together, the force of the affirmative links test shows that
Appellant did not exercise “control, management, or care over the substance.”
Poindexter, 153 S.W.3d at 405.
Additionally, the uncontroverted testimony of Johnican was that Nichols
placed the bags of methamphetamine in the center console after Glaspie made
Appellant leave the car. (3 R.R. at 50, 67). Glaspie’s statement that Nichols
would be in possession of some illicit substance corroborated Johnican's
testimony. (State’s Exhibit 1 at 39:55).
Reviewing the evidence in Appellant’s case in a light most favorable to
the trial court’s verdict, the trial court was not rationally justified in finding
guilt beyond a reasonable doubt. Pomier v. State, 326 S.W.3d at 378. The
evidence admitted at trial does not support a conclusion that the defendant
committed the crime of possession of a controlled substance as alleged in the
indictment.
Appellant prays that this Court find that the evidence in this cause is
61
legally insufficient and reverse and render a judgment of acquittal in this cause.
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CONCLUSION AND PRAYER
Wherefore, Appellant prays that this Court find that the trial court erred by
denying Appellant’s motion to suppress. Appellant prays that this Court find that
all of the evidence obtained as a result of the traffic stop of the vehicle operated by
Appellant was obtained in violation of the Fourth Amendment. Alternatively,
Appellant prays that this Court find that the arresting officer unreasonably delayed
the detention of Appellant in violation of the Fourth Amendment and that all
evidence obtained as a result of that detention was obtained unlawfully. Appellant
prays that this Court find that Appellant’s consent to the search of the vehicle was
not an independent act of his free will but the product of the unlawful stop and
unreasonably prolonged detention.
Further, Appellant prays that this Court find that the evidence at admitted at
trial in this cause did not support a conviction for possession of a controlled
substance.
Appellant prays that this Court reverse the judgment of the trial court and
render a judgment of acquittal in this cause. Alternatively, Appellant prays that this
Court reverse the judgment of the trial court and remand to the trial court for
further proceedings. Appellant prays for any and all relief to which he may be
entitled.
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Respectfully submitted,
/s/ Joseph Kyle Verret
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432 47
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief for Appellant was
served on the Counsel for the Appellee, David Bosserman, at the Criminal District
Attorney’s Office of Brazoria County, Texas, by service through electronic filing
on this 31st day of December, 2015.
/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932
CERTIFICATE OF WORD COUNT
I do hereby certify that the total word count for this document is 11,391
excluding those parts specifically excluded in Texas Rule of Appellate Procedure
9.4(i)(1) which is less than 15,000 words allowed per Texas Rule of Appellate
Procedure 9.4.
/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932
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