Placide, Jason Michael ( 2015 )

PD-1607-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/19/2015 4:30:33 PM
Accepted 1/22/2015 2:42:23 PM
NO. PD— 1607-14 ABEL ACOSTA
CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
***
JASON MICHAEL PLACIDE,
Petitioner,
V.
THE STATE OF TEXAS,
Respondent.
***
January 22, 2015
On Review from the
Fourteenth Court of Appeals
at Houston, Texas
NO. 14- 13-00725-CR
Appeal from the 180"‘ Criminal District Court
Harris County, Texas
(Cause No. 1,353, 416)
***
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
Michael A. McEnrue
639 Heights Boulevard
PO. Box 70978
Houston, Texas 77270
(713) 862-1975
(713) 864-8587 (FAX)
mmcenrue@justice.com
Attorney for Petitioner
Jason Michael Placide
Identity of Trial Judge, Parties and Counsel
Marc W. Brown was the presiding judge or a visiting judge with respect to
all matters determined by the 180"‘ Criminal District Court of Harris County, Texas
in this case.
Petitioner is Jason Michael Placide, SPN0l92237l, 701 North San Jacinto
5A2 01H, Houston, Texas 77002
Petitioner was represented in the 180"‘ Criminal District Court by Kenneth
Cager, TBC No. 34011189, 19901 Southwest Freeway, Suite 130, Sugar Land,
Texas 77469. Michael A. McEnrue, TBC No. 13589050, Post Office Box 70978,
Houston, Texas 77270-0978 was appointed to represent Petitioner in the court of
appeals and represents him in this Court.
Assistant District Attorney Seth Gagliardi, TBC No. 24073207, 1201
Franklin, Houston, Texas 77002 represented the State in the criminal district court.
The State was additionally represented in the court of appeals by Assistant District
Attorney Eric Kugler, Appellate Division, 1201 Franklin, Houston, Texas 77002.
Statement Regarding Indigency
The undersigned counsel was appointed to represent Petitioner on appeal by
order of the trial judge signed on July 29, 2013. ( C1kR. 51)
(i)
Statement Regarding Oral Argument
Petitioner waives oral argument on his petition for discretionary review, but
believes that this Court will find oral argument on the merits useful in this case.
Table of Contents
§1b_'L<:9.f; Egg
Identity of Trial Judge, Parties and Counsel ........................................... . .i
Statement Regarding Indigency ............................................................................. ..i
Statement Regarding Oral Argument ....................................................................... ..ii
Table of Contents ................................................................................................... ..iii
Index of Authorities ....................................................................................... ..iv
Statement of the Case ..................................................................... ..2
Statement of Facts and Proceedings ..................................................... ..2
Question Presented.. ........................................................................................ ..5
Reasons for Review ................................................................................................. ..5
Prayer for Relief.................................................................................................... .. 13
Certificate of Service ............................................................................................. ..15
Appendix
- January 7, 2014 Abatement Order
- March 10, 2014 Findings of Fact and Conclusions of Law
- March 18, 2014 Reinstatement Order
- September 25, 2014 Memorandum Opinion
- October 24, 2014 Motion for Rehearing
(iii)
Index of Authorities
Egg
Tex. R. App. P. 38.7 ........................................................................ ..6
hag
Alabama v. White, 496, U.S. 325 (1990) .............................................. ..13
Balentine V. State, 71 S.W.3d 763 (Tex. Crim. App. 2002) ...................... ..1 1-12
Costley V. State Farm Fire &
Casualty C0,, 894 S.W.2d 380 (Tex. App. —
Amarillo 1997, writ den’d) ................................................................. ..6
Illinois v. Wardlow, 528 U.S. 119 (2000) ............................................. ..13
Lankston V. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ........................ ..l0
Oliver V. State, 891 S.W.2d 651 (Tex. Crim. App. 1995) ............................. ..7
Reich—Bac0t v. State, 952 S.W.2d 542 (Tex. Crim. App. 1997’) ...................... . .7
Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) ...................... ..9-10
Theus v. State, 863 S.W.2d 489 (Tex. Crim. App. 1993) ............................. ..7
United States v. Henley, 984 F.2d 1040 (9"‘ Cir. 1992) .......................... ..10-11
Wicker V. State, 740 S.W.2d 779 (Tex. Crim. App. 1987) ............................ ..S
Wilson v. State, 296 S.W.3d 140 (Tex. App.~
Houston [14 Dist.] 2009, pet. ref’ d) ..................................................... ..6
(iv)
NO. PD — 1_607-14
IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
***
JASON MICHAEL PLACIDE,
Petitioner,
V.
THE STATE OF TEXAS,
Respondent.
***
On Review from the
Fourteenth Court of Appeals
at Houston, Texas
NO. 14-13-0O725—CR
Appeal from the 180* Criminal District Court
Harris County, Texas
(Cause No. 1,353, 416)
are 4: ac:
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Petitioner Jason Michael Placide, Appellant below, applies for review of a
Judgment and Opinion of the Fourteenth Court of Appeals with this petition for
discretionary review.
Statement of the Case
Petitioner challenges the July 26, 2013 Judgment of the 180d‘ Criminal
District Court of Harris County, Texas, which sentenced him to a five-year term of
confinement in the institutional division of the Texas. Department of Criminal
Justice for possession of cocaine. (Clk. R. 45-48) In the court of appeals, Petitioner
disputed the trial court’s ruling on his motion to suppress heard prior to his guilty
plea. (Clk. R. 32; RpR. 99)
Statement of Facts and Proceedings
At the suppression hearing, the State stipulated that it had the burden of proof.
(RpR. 7) Its witnesses then told the following story:
During the night shift on July 6, 2012, the Houston Police Department
dispatched three patrol officers to an apartment complex at 8034 Antoine near
West Gulf Bank with a report that three or four black males were “doing drugs and
loading guns” outside a white truck and a black Dodge Magnum. (RpR. 13-14)
When the officers arrived, they found three black males near a white pickup in the
parking lot of the complex. (RpR. 15-16)
On the strength of the anonymous tip, the officers handcuffed each of the
individuals, and frisked them, but found no guns or drugs. (RpR. 14, 25-26, 43,
52-53, 57, 65) Although no one had attempted to flee, the officers locked each of
the handcuffed suspects in the. back seats of separate patrol cars as they continued
their investigation. (RpR. 26, 36, 42) The officers then ran the suspects’ criminal
histories, but learned that none had outstanding warrants. (RpR. 16, 36) They
searched the white pickup truck, but found no guns or drugs. (RpR. 25)
The policemen spotted a black Dodge Magnum parked three spaces away
from the white pickup. (RpR. 43) Two of the patrolmen went to shine their
flashlights through its passenger side window. They viewed plastic bags of
marijuana and clear pills on the console between the two front seats. flKpR. 17)
The third officer meanwhile questioned Petitioner who claimed ownership of the
Magnum, admitted that he had driven it, and stated that he lived at the address on
the registration. (RpR. 18, 46) That policeman testified that Petitioner was under
arrest when the other officers found the drugs in the Dodge Magnum. (RpR. 22)
The police further admitted that they did not give Petitioner the warnings mandated
by Miranda v. Arizona, 384 U.S. 436 (1966). (RpR. 32-33, 72) They stated that
they normally d0n’t do that, that they are not taught to do it. (RpR. 37, 53)
Petitioner did not have a key to the vehicle; moreover, it was not registered to him.
(RpR. 27, 33, 72) The policemen therefore called a tow truck, and asked the driver
to open the Dodge Magnum upon his arrival. (RpR. 30, 58) They retrieved the
marijuana as well as crack and powder cocaine they found underneath it on the
console.
At the conclusion of the hearing, the trial court denied Petitioner’s motion to
suppress evidence, including Petitioner’s statements (RpR. 37, 97), then took
Petitioner’s guilty plea and certified his right to "appeal. (RpR. 99: ClkR. 36, 43)
In his court of appeals brief, Petitioner argued that his statement to his
arresting officer was the fi'uit of an investigative detention that violated the Fourth
Amendment because it lacked reasonable suspicion and also exceeded the scope
permitted. Petitioner also argued that his interrogation violated the Fifih
Amendment as well as Article 38.22 of the Texas Code of Criminal Procedure for
lack of prior Miranda warnings.
After Petitioner submitted his brief, but before the State replied, the court of
appeals decided at least one of Petitioner’s arguments implicated the voluntariness
of his statement. Relying on Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim.
App. 1987), that court abated the appeal, directed the trial court to make written
findings of fact and conclusions of law on the voluntariness of Petitioner’s
statement, and ordered it to supplement the appellate record within thirty days.
(Appendix) When the trial court complied (Appendix), the appellate court
reinstated the appeal and directed the State to file its brief in 30 days. (Appendix)
Afier the State filed its responsive brief, the panel heard oral argument,
issued an opinion which incorporated the trial court’s findings of fact verbatim
without question. (Appendix) That opinion concluded that Petitioner had failed to
preserve his contentions regarding the fourth amendment violations. With respect
to Petitioner’s claimed violation of the Fifth Amendment, the court decided that
Petitioner’s detention did not amount to custody that implicated the Miranda
requirements. On November 6, 2014, the Fourteenth Court of Appeals denied
Petitioner’s October 24, 2014 motion for rehearing which complained of that
court’s failure to provide for supplemental briefing after the trial court made its
findings of fact and conclusions of law regarding the suppression of evidence.
(Appendix)
Questions Presented
Whether the Court of Appeals’ Abatement and Reinstatement Procedure
Correctly Implemented this Court’s Wicker Decision.
to Preserve a Claim that
Whether Petitioner Failed
His Statement Regarding His Connection to a Black Dodge Magnum
Was the Fruit of a Fourth Amendment Violation.
Whether Petitioner Underwent a Custodial Interrogation
Reasons for Review
A.
If a trial court makes no factual findings to support its ruling regarding the
voluntaiiness of a confession, or if the court’s findings lack sufficient detail to
permit resolution of the appellate dispute raised by a party, this Court’s decision in
Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim. App. 1987) directs the court of
appeals to abate an appeal and order the district judge to make written findings on
the disputed issues regarding the voluntariness of a defendant’s challenged
confession.
If one leaves aside whether the Wicker procedure applies to challenges
outside that specified in Texas Code of Crim. P. Art. 38.22 §6, there still remains a
question about how to reconcile a briefing schedule that has already commenced
with the sequence of abatement, supplementation of the record, and reinstatement
of the appeal mandated by this Court in that case.
As one alternative, one panel of the Fourteenth Court of Appeals has offered
an appellant the opportunity to supplement his brief following the entry of the trial
court’s findings and conclusions. Wilson v. State, 296 S.W.3d 140, 143 (Tex. App.-
Houston [14 Dist.] 2009, pet. refd) (past example). That option is consistent with
Tex. R. App. P. 38.7 which provides that “a brief may be amended or
supplemented whenever justice requires, on whatever reasonable terms the court
may prescribe.”
In at least one civil case, a Texas court of appeals has determined that a
litigant is entitled to re-brief or supplement his brief when the appellate process
generates new issues. Costley v. State Farm Fire and Casualty Co., 894 S.W.2d
380, 387(Tex. App.—Amarillo 1997, writ denied) (issue arising during appeal).
At its core, this problem is akin to the one this Court addressed when it held
that an indigent defendant’s mandatory right to re-brief on remand flows
necessarily from his constitutional or statutory right to counsel. See, e.g., Reich-
Bacot v. State, 952 S.W.2d 542, 543 (Tex. Crim. App. 1997) (mandatory
opportunity to re-brief on remand from Texas Court of Criminal Appeals); Oliver
v. State, 891 S.W.2d 651 (Tex. Crim. App. 1995) (same); Theus v. State, 863
S.W.2d 489, 491 (Tex. Crim. App. 1993) (same). In addition, failing to allow
supplemental briefing when the issues change during the appellate process raises a
question of fairness that may rise on some occasions to the level of a deprivation of
due process.
This Court should therefore consider this issue and determine whether the
court of appeals had a statutory duty under the Texas Rules of Appellate Procedure
or a constitutional duty based on the due process clause or the due course of law
provision of the Texas constitution to notify Petitioner of his right to re-brief after
abatement and address the new or altered issues created by the Findings of Fact
and Conclusions of Law supplementing the appellate record after Petitioner had
filed his brief. Texas Rule of Appellate Procedure 66.3(b).
B.
Prior to the hearing in the trial court, appointed counsel filed a motion to
suppress certain physical evidence taken from the Black Dodge Magnum as well as
“[a]ny other matters that the Court finds should be suppressed upon hearing of this
motion.” (ClkR 32-33). As the State adduced evidence and the specific facts of the
encounter came to light, however, defense counsel expanded the range of his
challenges to include:
(a) the scope of Petitioner’s detention (RpR. 25);
(b) whether the officer’s call slip from an anonymous source and the
circumstances witnessed upon arrival would provide reasonable
suspicion to detain Petitioner to the extent recounted (25-26);
(c) the officer’s failure to afford Petitioner his Miranda warnings (RpR. 32-
33); and
(cl) the recurring problem of both officers’ failure to give Miranda warnings
when they handcuff people and lock them in patrol cars. (RpR. 37, 53 &
96)
At the close of the evidentiary hearing, trial counsel orally challenged
Petitioner‘s purported statement admitting a connection with the Black Dodge
Magnum and the validity of his detention and its scope in light of the facts recited
by the officers. Petitioner’s attorney summarized his position as a set of challenges
to the actions of the officers based on the Fourth, Fifth and Sixth Amendments to
the United States Constitution, Article 1, §9 of the Texas Constitution and “Article
28.23” [sic] of the Texas Code of Criminal Procedure. (RpR. 96-97).
The State did not address the points made by defense counsel. Instead, it
contended first that there had been reasonable suspicion for Petitioner’s detention
and next that the drugs were found in a plain View that the police were allowed in
the circumstances. (RpR. 98-99). The assistant district attorney then closed his
final remarks by stating: “As for the other issues that are raised, as far as the links
or connections to this defendant, that falls outside the scope of this motion to
suppress hearing.” (Id.) Although it recognized that defense counsel had raised
additional issues during the hearing, in other words, the State refused to deal with
any that lay outside the scope of Petitioner’s written motion to suppress. At that
point, the trial court orally denied Petitioner’s suppression motion. (RpR. 99)
When the State drafied proposed Findings of Fact and Conclusions of Law
during the abatement of Petitioner’s appeal, it continued its effort to forestall the
latter’s assertion of any claims about constitutional violations surrounding his
statements in a preamble to the document. Subject to that proviso, the trial court
ruled on Petitioner’s fifih amendment claim; it did not explicitly rule on
Petitioner’s fourth amendment claim in that document. (Appendix).
In Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009), this
Court held that held that an argument made during a suppression hearing is
sufficient to alert a trial court that a defendant is arguing a claim of statutory or
constitutional violation. In explicating the governing law, the Court quoted its
opinion in Larzkston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) to
summarize the core requirements of preserving error under Texas Rule of
Appellate Procedure 33.l(a) and Texas Rule of Evidence 103. It framed them as
follows:
To preserve an error for appeal, a party must be specific enough so as
to ‘let the trial judge know what he wants, why he thinks himself
entitled to and do so clearly enough for the judge to understand him
it,
at a time when the trial court is in a proper position to do something
about it.’
Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009).
The Court also emphasized that appellate courts must pay attention to
contextual clues concerning what particular arguments a party is making:
[Courts] cannot consider just the specific complaint in
question; [they] must also look at the context. When the correct
ground for exclusion was obvious to the judge and opposing counsel,
no forfeiture results from a general or imprecise objection.
Resendez v. State, 306 S.W.3d at 308, 313 (Tex. Crim. App. 2009).
By holding in this case that Petitioner failed to preserve a claim that his
statement regarding a connection with a Black Dodge Magnum was the fruit of a
Fourth Amendment violation (Appendix Slip op. at 8), the Fourteenth Court of
Appeals has ignored the core principles outlined in Resendez v. State, 306 S.W.3d
308 (Tex. Crim. App. 2009). Texas Rule of Appellate Procedure 66.3(c).
C.
In United States v. Henley, 984 F.2d 1040 (9th Cir. 1992), the court dealt
with Henley’s claim that his statement he owned a car involved in a robbery was
obtained in violation of his Miranda rights. Although the FBI had not formally
10
arrested Henley at the time, an agent entered the police car where Henley sat in
handcuffs, and asked him whether he owned a particular 1974 Plymouth Duster.
When Henley acknowledged his ownership, the agent disclosed that he suspected
the car had been involved in a bank robbery, and obtained I-lenley’s consent to
search the vehicle. With evidence taken fiom the Duster, prosecutors obtained
Hen1ey’s conviction not for the bank robbery then under investigation but for one
that had occurred eight days earlier.
Writing for the panel and relying directly on Miranda v. Arizona, 384 U.S.
486 (1966), Judge Kozinski stated:
Whether Henley was in custody at the time he admitted owning the
car is easily resolved.
***
It is fair to say that someone who
being questioned by an FBI
is
agent while sitting handcuffed in the back of a police car is, indeed,
not free to leave. We have no trouble concluding that Henley ‘had
been taken into custody or otherwise deprived of his freedomof action
in [a] significant way.’
United States v. Henley, supra, 984 F.2d at 1042.
The court went on to hold that the FBI questioning was not only custodial
but also constituted interrogation. United States v. Henley, 984 F.2d 1040, 1043
(9"‘ Cir. 1992).
Relying on Balentine v. State, 71 S.W.3d 76.3 (Tex. Crim. App. 2002), the
court of appeals in this case concluded that Petitioner’s detention in a police car
11
while handcuffed was reasonable and did not amount to an unlawful arrest.
(Appendix Slip Op. at 14) That case is factually distinguishable from the instant
one. In Balentine, the officer began investigating a report of gunfire from a knovm
informant. He first watched defendant try to evade an encounter, then repeatedly
caught him in various lies and contradictions as Balentine allowed the officer to
chauffer him to the address of someone who could vouch for his identity. As the
situation developed to the point where the officer felt the need to frisk Balentine a
second time, he handcuffed the latter as he took him out of the patrol car and
conducted a second, more thorough pat-down search and found a bullet. The
officer ultimately released Balentine on the instruction of a supervisor. Balentine
v. State, 71 S.W.3d 763, 767 (Tex. Crim. App. 2002).
In this case, the officers responding to a call by an unknown informant did
not find evasive actors in the apartment parking lot. Every one they handcuffed and
placed in separate patrol cars had no outstanding warrants. The officers found no
weapons to corroborate the unknown inforrnant’s tip. They found no guns or drugs
in the white pick-up truck they searched. As one officer questioned Petitioner
about his connection to a Black Dodge Magnum they spotted, the others conducted
a plain view search through its passenger window and saw marijuana on the
console inside. Because Petitioner did not have a key to the vehicle that was not
12
registered to him, the officers called a tow truck, and asked the driver to open the
Dodge so they could retrieve the drugs.
What the court of appeals has ruled in this case is the following: If you are a
black man standing next to a white pick-up truck in an apartment parking lot in
Acres Homes at 4:00 a.m, a call from an unidentified individual that a black
person, or 3 or 4, is doing drugs and loading guns next to a white pick-up at that
location will give the police reasonable suspicion to detain you by handcuffing you
and locking you in a patrol car while they investigate the anonymous tip. That
detention, moreover, does not arise to the equivalent of an arrest. That holding is
untenable in light of the United States Supreme Court’s decisions in both Illinois v.
Wardlow, 528 US. 119, 124 (2000) and Alabama v. White, 496, U.S. 325, 329
(1990). For those reasons, this Court should review the lower court’s decision and
reverse it. Texas Rule of Civil Procedure 66.3(c).
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfiilly asks
this Court to sustain Petitioner's grounds for review on the Miranda issue and
reverse the judgments of the Fourteenth Court of Appeals and the trial court. In the
alternative, Petitioner asks this Court to sustain his grounds for review on both the
first and second issues, and then remand this case to the Fourteenth Court of
Appeals for fiirther proceedings consistent with the Court’s decision.
13
Respectfully submitted,
é(4mu/,,_(,Lfls£nc/27/"“"‘/h‘
By:
MICHAEL A. MCENRUB
TBC #13589050
639 Heights Boulevard
P.O. Box 70978
Houston, Texas 77270-0978
(713) 862-1975
(713)864-8587 FAX
mmcenrue@justice.com
ATTORNEY FOR PETITIONER
Certificate of Compliance
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
The word count in the foregoing Appellant’s Petition for Discretionary Review
calculated under Rule of Appellate Procedure 9.4(i)(2) without allowance under
Texas Rule of Civil Procedure 9.4(i)(l), is 3,069 words.
g(/wag.”
Michael A. Mclfnrue
14
Certificate of Service
I hereby certify that a true copy of the foregoing Petition for Discretionary
Review was sent to the following parties or counsel of record thifi day of
January, 2014 by mail in compliance with Rules 9.5 & 68.11, Texas Rules of
Appellate Procedure:
Eric Kugler
Assistant District Attorney
1201 Franklin
Houston, Texas 77002
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
d,.,,z.M%4n,:,,4..a
Michael A. Mc_Elnrue
APPENDIX
-
v
Abatement Order filed January 7, 2014.
R
In The
3lun1'It2rIfl1¢'m1rfnfApr;12fln
NO. 14»-13-00725-CR
JASON MICHAEL PLACIDE, Appellant
V.
1'31: spire or TEXAS, Appellee
On Appeal rroxygié ism District Court
``
Harifis County, Texas
Q
Trial Courif "Le? No. 331950130
``
~
"l
IE5‘-lib 1 Q
ABATEIVIENT ORDER
The trial court failed .t6-‘submit findings of fact and conclusions of law on the
voluntariness of appellant’s statement. Article 38.22, section 6 of the Texas Code
of Criminal Procedure requires the trial court to make written fact findings and
conclusions of law as to whether a challenged statement was made voluntarily,
even if appellant did not request them or object to their absence. Tex. Code Crim.
Proc. at. 38.22 § 6; Urias v. State, 155 S.W.3d 141, 142- (Tex. Crim. .
¥'04
glhrh Danhln
mm mm i
nzcorzoen-s MEMORANDUM
rm: nnstmmgansdpoor quality
.mm_
M" ‘7 29"? \
'§
ameume oflmaglng ‘‘'—s1:.'r-a:-:=w..-.;-'v;*;.,,—
3!’
llonmv
1
The statute is mandatory and the proper procedure to correct the error is to abate
the appeal and direct the trial court to make the required findings and conclusions.
See Tex. R. App. P. 44.4; Wicker v. State, 740 S.W.2d 779, 784 (Tex. Crim. App.
1987).
Accordingly, the trial court is directed to reduce to writing its findings of
fact and conclusions of law on the voltmtariness of appel!ant’s statement and have
a supplemental clerk’s record containing those findings filed with the clerk of this
Court within thirty days of the date of this order. 3 '1! '10 ,4
The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court's active docket when the
trial court’s findings and recommendations are filed in this Court. The Court will
also consider an appropriate motion to reinstate the appeal filed by either party.
PER CURIAM
P3
35341;
THE sun: or TEXAS x [N THE 180"‘
vs. x DISTRICT COURT or
JASON MICHAEL PLACIDIZ x HARRIS couwrv, TEXAS
F INGS OF FACT AND N ONS OF LAW
BE IT REMEMBERED that on July 22, 2013 this Court conducted an evidentiary hearing,
pursuant to the Defendant’s MOTION TO SUPPRESS. Specifically, the Defendant sought to
suppress, “all evidence seized on 7-6-2012 uneonscnted in the search of a Black dodge Magnum
vehicle at 5700 Gulf bank.” During the aforementioned hearing, in addition to urging the
suppression of physical evidence, the Defendant also urged suppression of certain orai
statements, although such statements were NOT
mentioned in the MOTION TO
SUPPRESS.
At the conclusion of said hearing, this Court denied the aforementioned MOTION TO
SUPPRESS._'I'his Court makes the following FINDINGS OF FACT AN
D CONCLUSIONS
OF LAW with regard to BOTH
the physical evidence seized and the oral statements made by
the Defendant, while not conceding that the consideration of such statements was properly before
the Court based on the aforementioned MOTION TO
SUPPRESS:
FINDINGS OF FACT
1. The Defendant, Jason Michael Placide, was charged by indictment in the above styled and
numbered cause with the felony offense of Possession of a Controlled Substance.
2. Oflioers Joseph Little and Matthew Little of the Houston Police Department arecredible and
reliable witnesses who testified trrrthtirlly at the hearing regarding Defendant’s Motion To
Suppress Evidence.
3. On July 6, 2013, at approximately 4:00 am. a report was made to the Houston Police
Department that three to four black ma] were standing in the area of a white truck and a
black Dodge Magnum at 8034 Antoine, Houston, Harris County, Texas, in possession of
narcotics and weapons.
4. On July 6, 2013, shortly afier 4:00 a.m., Officers Joseph Little and Matthew Little responded
to the reported disturbance at 8034 Antoine, Houston, Harris County, Texas, involving three
to four black males allegedly in possession of narcotics and Weapons in the nreaof a white
truck and a black Dodge Magnum.
5. 8034 Antoine, Houston, Harris County, Texas, is in a high crime area known for narcotics,
and the officers arrived on scene at approximately 4:00 a.rn., in the hours of darkness.
When the officers arrived at 8034 Antoine, Houston, Harris County, Texas, they observed
three biack males in the area of a white truck, and a black Dodge Magnum within three
parking spaces of the white truck, confirming several pieces of information fiorn the report.
The oflieers briefly detained each of the three men, includingthe Defendant, Jason Plaeide,
in order to safely investigate and ensure the continued presence of the suspects in the scene.
At the time the Defendant was detained, the scene of the investigation was not yet secure,
and the officers could not be certain whether there were unsecured weapons in the area.
9. There was no significant show of force during the investigative detention.
10. As part of the detention, the Defendant was frislted for weapons, handcuffed, and placed in
the back of a patrol car.
ll. While conducting their brief investigation with the help of a third HPD ofiicer, Ofiicers
Joseph Little and Matthew Little looked into the window of the black Dodge Magnum
vehicle (with the aid of a 360 lumen flmhlight) fiom outside the vehicle, and observed what
they both believed to be marijuana, based on their training and experience.
12. The Defendant admitted to officers that the black Dodge Magnum was the vehicle he had
been driving and that he lived at the same address where the vehicle was registered.
l3. The Defendant was an-rated afier the discovery and recovay of the marijuana, and after he
was linked to the black Dodge Magnurn through his statements.
QONQLQ $038 OF LAW
The officer’: testimony established specific, articulable facts (the confirmed details of the
call, the nature of the high crime area, time of night, and presence of the suspects in
suspicious circumstances) and reasonable inferences substantial enough to support
reasonable suspicion that the suspects had b engaged in criminal activity.
The investigative detention of the Defendant was lawful, in order to ensure officer safety,
maintain the status quo, and ensure the continued presence of the Defendant during the
course of a brief investigation, taking into consideration the nature ofthe area, time of night,
and verified details of the call. State v. Sheppard, 27l S.W.3d 28l, 291 (Tex. Crim. App.
2008); Chamber: v. State, 397 S.W.3d 777 (Terr. App.-Houston [!4"‘ Dist} 2013).
3. The marijuana in the black Dodge Magnum was in plain view and immediately reeogniuble
to the ofliccts as contraband, and the officers involved viewed the marijuana from a location
where they were legitimately and lawfully present.
4. The officers involved had probable cause to search the black Dodge Magnum, and the
seizure of the narcotics without a warrant was lawful under the automobile exception.
5. Probable cause to arrest the Defendant did not exist prior to his statements linking him to the
black Dodge Magnum.
6. The officers used only a minimal amount offorce required to investigate, maintain the status
quo, and ensure ofiicet‘ safety.
7. The statements of the Defendant in regards to his connection to the black Dodge Magnum
were made during an investigative detention that had not evolved into custodial interrogation,
and therefore are admissible pursuant to Article 38.22 of the Texas Code of Criminal
Procedure.
ELISE
IT IS HEREBY ORDERED THAT THE FOREGOING FINDINGS OF FACT AND
CONCLUSIONS OF LAW be made a part of the record in this cause pursuant to the Team
Code of Criminal Procedure.
SIGNED AND ENTERED this 10" day ofMarch, 2014
ED
Img.Lngnltl '
glutrlct clerk
‘77?«/Lb/3/b«cu«._
Marc W. Brown _
W9"
MAR 1 0 7.014
"'9'"
',,_,
1
.3 Sittingbx assignment for the
130 District Court
Harris County, Texas
/,
Order filed January 7, 2014, Withdrawn, Appeal Reinstated and Order filed
March 18, 2014
NO. 14-13-00725-CR
JASON MICHAEL PLACIDE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1353416
ORDER
On January 7, 2014, this Court issued an order abating the appeal and
directing the trial court to submit findings of fact and conclusions of law on the
voluntariness of appelIant’s statement.
On March 14, 2014, a supplemental clerk's record was filed containing the
trial court’s findings of fact and conclusions of law. Therefore., our order of
January 7, 2014, is withdrawn. The appeal is reinstated. The State’s brief is due
April 17,2014.
PER CURIAM
Affirmed and Memorandum Opinion filed September 25, 2014.
In The
Ellnurteeutli (Enurt nf Appeals
N0. 14-13-00725-CR
JASON MICHAEL PLACIDE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1353416
MEMORANDUM OPINION
Appellant Jason Michael Placide appeals his conviction for possession of
cocaine. In two issues, appellant argues the trial court erred in denying his motion
to suppress because (I) the officers lacked reasonable suspicion to detain him; and
(2) his statement was made as a result of custodial interrogation and was
inadmissible under article 38.22, section 3 of the Texas Code of Criminal
Procedure. We affirm.
BACKGROUND
Appellant was indicted for possession of between one and four grams of
cocaine. See Tex. Health & Safety Code § 481.1 l5(c). Appellant filed a pretrial
motion to suppress in which he argued that a Houston Police officer “broke into”
his vehicle and searched the vehicle without consent. Appellant argued that “[a]ny
controlled substances found in the vehicle” should be suppressed because the
search was without a warrant and without probable cause. Appellant also sought
suppression of “[a]ny other matters that the Court finds should be suppressed upon
hearing of this motion.” Appellant argued that the evidence should be suppressed
because (1) the narcotics were not in plain view in the vehicle; and (2) the vehicle
search was not incident to a lawful arrest.
At the hearing on appellant’s motion to suppress Officer Joseph Little of the
Houston Police Department testified that at approximately 4:00 a.m. on July 6,
2012, he was patrolling the north side of Houston in an area known for narcotics
and crime. He received a dispatch call for a disturbance at an apartment complex
located at 8034 Antoine. The 911 caller reported three or four African-American
males using narcotics and loading guns while standing outside a white truck near a
black Dodge Magnum. When Little arrived at the apartment complex he observed
three African-American males standing outside of a white pickup truck near a
black Dodge Magnum. He identified appellant as one of the men he saw that night.
Because Little had received a report that the men were loading weapons, he
detained all three men, handcuffed them, and placed them in separate patrol cars.
In conducting his investigation, Little shined a flashlight into the black
Dodge Magnum, and observed narcotics on the car’s console. Little saw a bag of
marijuana and a bag of clear pills with no label on them. Little asked appellant if
the black Dodge Magnum was his car, and appellant “admitted that that was his car
2
and he had been driving it and he lives at the registered address.” Appellant was
arrested after the marijuana and pills were discovered in the vehicle. After
appellant was arrested, officers found crack cocaine in the vehicle. The pills also
tested positive for cocaine.
On cross-examination, Little testified that he did not know the identity of the
911 caller. The officers searched -all three men, but did not find weapons.
Officer Matthew was also on the scene and testifled to the same events.’
Matthew Little testified that the three men were detained because the call reported
they were loading weapons. The men were handcuffed for officer safety and placed
in the patrol cars so they could not flee the scene until the investigation was
complete.
Appellant testified that the car belonged to his mother and he had no
knowledge of drugs in the car. On cross-examination, appellant admitted more than
one prior conviction for possession of controlled substances but could not
remember an exact number of prior convictions. Appellant believed he was under
arrest at the time he was handcuffed and placed in the patrol car.
During his closing statement, appellant’s counsel argued that (1) appelIant’s
statement that he owned the car should be excluded because he was under arrest
and officers did not read his It/firanda rights;2 and (2) the evidence should be
excluded because the search was warrantless and not a proper inventory search
incident to arrest. The State argued that the officers had reasonable suspicion of a
threat to their safety as a result of the potential weapons reported in the police
dispatch. Officers detained appellant and the other individuals for their safety
'
We refer to Joseph Little as ‘‘Little'’ throughout this opinion and refer to Matthew Little
as "Matthew Little.”
2
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
3
while they conducted an investigation. The investigation revealed marijuana in
plain view on the console of the black Dodge Magnum. The State further argued
that appellant’s argument about his statement fell outside the scope of the hearing.
The trial court made findings of fact and conclusions of law with the
following preface:
During the aforementioned hearing, in addition to urging the
suppression of physical evidence, the Defendant also urged
suppression of certain oral statements, although such statements were
NOT mentioned in the MOTION TO SUPPRESS. At the conclusion
of said hearing, this Court denied the aforementioned MOTION TO
SUPPRESS. This Court makes the following FINDINGS OF FACT
AND CONCLUSIONS OF LAW
with regard to BOTH the physical
evidence seized and the oral statements made by the Defendant, while
not conceding that the consideration of such statements was properly
before the Court based on the aforementioned MOTION TO
SUPPRESS:
Findings of Fact
1. The Defendant, Jason Michael Placide, was charged by indictment
in the above styled and numbered cause with the felony offense of
Possession of a Controlled Substance.
2. Officers Joseph Little and Matthew Little of the Houston Police
Department are credible and reliable witnesses who testified truthfully
at the hearing regarding Defendant’s Motion To Suppress Evidence.
3. OnJuly 6, 2013, at approximately 4:00 a.m. a report was made to
the Houston Police Department that three to four black males were
standing in the area of a white truck and a black Dodge Magnum at
8034 Antoine, Houston, Harris County, Texas, in possession of
narcotics and weapons.
4. OnJuly 6, 2013, shortly after 4:00a.m., Officers Joseph Little and
Matthew Little responded to the reported disturbance at 8034 Antoine,
Houston, Harris County, Texas, involving three to four black males
allegedly in possession of narcotics and weapons in the area of a white
truck and a black Dodge Magnum.
5. 8034 Antoine, Houston, Hairis County, Texas, is in a high crime
4
area known and the officers arrived on scene
for narcotics, at
approximately 4:00 a.m., in the hours of darkness.
6. When the officers arrived at 8034 Antoine,
Houston, Harris County,
Texas, they observed three black males in the area of a white truck,
and a black Dodge Magnum within three parking spaces of the white
truck, confirming several pieces of information from the report.
7. The
officers briefly detained each of the three men, including the
Defendant, Jason Placide, in order to safely investigate and ensure the
continued presence of the suspects at the scene.
8. Atthe time the Defendant was detained, the scene of the
investigation was not yet secure, and the ofiicers could not be certain
whether there were unsecured weapons in the area.
9. There was no significant show of force during the investigative
detention.
10. As of the detention, the Defendant was frisked for weapons,
part
handcuffed, and placed in the back of a patrol car.
11. While conducting their brief investigation with the help of a third
HPD officer, Officers Joseph Little and Matthew Little looked into the
window of the black Dodge Magnum vehicle (with the aid of a 360
lumen flashlight) fiom outside the vehicle, and observed what they
both believed to be marijuana, based on their training and experience.
12. The Defendant admittedto officers that the black Dodge Magnum
was the vehicle he had been driving, and that he lived at the same
address where the vehicle was registered.
13. The Defendant was arrested after the discovery and recovery of
the marijuana, and after he was linked to the black Dodge Magnum
through his statements.
Conclusions of Law
1. The officer’s testimony established specific, articulable facts (the
confirmed details of the call, the nature of the high crime area, time of
night, and presence of the suspects in suspicious circumstances) and
reasonable inferences substantial enough to support reasonable
suspicion that the suspects had been engaged in criminal activity.
2. The
investigative detention of the Defendant was lawful, in order to
ensure officer safety, maintain the status quo, and ensure the
continued presence of the Defendant during the course of a brief
5
investigation, taking into consideration the nature of the area, time of
night, and verified details of the call. State v. Sheppard, 271 S.W.3d
281,291 (Tex. Crim. App. 2008); Chambers v. State, 397 S.W.3d 777
(Tex. App.—Houston [14th Dist.] 2013).
3. The marijuana black Dodge Magnum was in plain view and
in the
immediately recognizable to the officers as contraband, and the
officers involved viewed the marijuana fiom a location where they
were legitimately and lawfully present.
4. The had probable cause to search the black Dodge
officers involved
Magnum, and the seizure of the narcotics without a warrant was
lawful under the automobile exception.
5. Probable cause to arrest the Defendant did not exist prior to his
statements linking him to the black Dodge Magnum.
6. The officers used only a minimal amount of force required to
investigate, maintain the status quo, and ensure officer safety.
7. The statements of the Defendant in regards to his connection to the
black Dodge Magnum were made during an investigative detention
that had not evolved
into custodial interrogation, and therefore are
admissible pursuant to Article 38.22 of the Texas Code of Criminal
Procedure.
STANDARD or REVIEW
We review a trial court’s denial of a motion to suppress for abuse of
discretion. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Thomas
v. State, 297 S.W.3d 458, 459 (Tex. App.~Houston [14th Dist] 2009, pet. ret’d).
We review the evidence in the light most favorable to the trial court’s ruling.
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). The trial court is
the exclusive factfinder and judge of the credibility of the witnesses. State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Turner v. State, 252 S.W.3d 571, 576
(Tex. App.——l-louston [14th Dist.] 2008, pet. refd). We afford almost total
deference to the trial court’s determination of historical facts supported by the
record, especially when the trial court’s findings are based on an evaluation of
credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
6
Ohio App. 1997). We afford the same amount of deference to the trial court’s ruling on
mixed questions of law and fact if the resolution of these questions tums on an
evaluation of credibility and demeanor. Id. We review questions not turning on
credibility and demeanor de novo. Id. If the trial court’s decision is correct under
any theory of law applicable to the case, the decision will be sustained. Estrada v.
State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).
PRESERVATION or ERROR
In his first issue appellant argues his statement was the fruit of a Fourth
Amendment violation because the officers did not have reasonable suspicion to
detain him. The State argues appellant failed to preserve error with regard to the
denial of his motion to suppress his statement because appellant’s written motion
to suppress only sought to suppress the physical evidence recovered from the car,
A motion to suppress is a specialized objection to the admissibility of
evidence and must be timely and sufficiently specific to inform the trial court of
the complaint. Johnson v. State, 171 S.W.3d 643, 647 (Tex. App.—Houston [l4th
Dist.) 2005, pet. refd). To preserve error for appellate review, an appellant must
“let the trial judge know what he wants, why he thinks himself entitled to it, and . .
. do so clearly enough for the judge to understand him at a time when the trial court
is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d
907, 909 (Tex. Crim. App. 1992).
Appellant’s written. motion specifically sought to suppress the physical
evidence recovered from the car, and vaguely sought suppression of “[a]ny other
matters that the Court finds should be suppressed upon hearing of this motion.”
During the oral hearing on appellant’s motion to suppress, appellant argued that his
statement should be suppressed because he was in custody at the time he made it
and ofiicers did not inform him of his Miranda rights. We assume for purposes of
7
the analysis below that appellant’s argument at the hearing regarding suppression
of his statement sufficed to preserved error.
Appellant also argues on appeal that the officers lacked reasonable suspicion
to detain him and that his statement was an impermissible fruit of that Fourth
Amendment violation. Appellant did not bring such a contention to the attention of
the trial court either in his written motion to suppress or during the oral hearing; he
did not ask the trial court to decide the issue of reasonable suspicion and issue a
ruling. His motion failed to preserve his contention on appeal because it did not
alert the trial court that he wished the issue to be decided. See Tex. R. App. P.
33.l(a)(1) (requiring, in order to preserve error, sufficient specificity to make trial
court aware of complaint and ruling by court on complaint); Broxton v. State, 909
S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that issue on appeal must
comport with complaint made at trial).
On appeal, appellant argues the officers failed to corroborate the facts of the
dispatch that indicated the occurrence of criminal activity. Appellant did not make
this argument to the trial court; instead, he argued that the search of the vehicle
was improper because (1) the officers could not have seen the contraband in plain
view, and (2) the search was not conducted as a proper inventory search after
arrest. We conclude that appellant did not preserve this contention for appeal
because neither his written motion nor his arguments at the hearing alerted the trial
court to a contention that the officers lacked reasonable suspicion justifying an
investigation. Additionally, appellant did not secure a ruling on such a complaint.
See Tex. R. App. P. 33.1(a)(l); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim.
App. 2005) (concluding that when appellant failed to object to admission of
statement at motion-to—suppress hearing on ground for suppression raised on
appeal, but instead, argued a different basis for suppression, issue was not
preserved); Mbugua v. State, 312 S.W.3d 657, 666-67 (Tex. App.—Houston [lst
Dist] 2009, pet. refd) (holding that appellant did not preserve his complaint
regarding admissibility of his custodial statement because complaint on appeal did
not comport with grounds argued in motion to suppress). We overmle appe1lant’s
first issue.
CUSTODY
In his second issue, appellant argues his statement concerning ownership of
the car was the product of a custodial interrogation. Appellant argues the statement
was inadmissible because he did not receive warnings under Miranda.
The Fourth Amendment and article 38.22 of the Texas Code of Criminal
Procedure allow admission of noncustodial statements. See, e.g., Miranda, 384
U.S. at 444; Dowthitf v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). Thus.
to determine whether appell-a.nt’s statement about ownership of the car was
admissible, we must first detennine the point at which officers placed appellant in
custody.
A police officer may stop and briefly detain a person reasonably suspected
of criminal activity in the absence of probable cause to arrest the person. Terry v.
Ohio, 392 US. l, 22 (1968). The officer may use such force as is reasonably
necessary to effect the goal of the stop: investigation, maintenance of the status
quo, or officer safety. Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App.),
cert. denied, 522 U.S. 894 (1997). There is no bright-line, test providing that mere
handcuffing is always the equivalent of an arrest. Id. at 118. Instead, when
evaluating whether an investigative detention is unreasonable, “common sense and
ordinary human experience must govern over rigid criteria.” Ia’.
A police 0fficer’s interaction with a citizen can be classified as an encounter,
detention, or arrest. See State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim.
App. 2011). “A person is arrested when he has been actually placed under restraint
or taken into custody by an officer or person executing a warrant of arrest, or by an
officer or person arresting without a warrant.” Tex. Code. Crim. Proc. art. 1522;
Mount v. State, 217 S.W.3d 716, 724 (Tex. App.——I-Iouston [14th Dist.] 2007, no
pet.). But this restraint-of—liberty standard is not adequate when distinguishing
between an arrest and a detention because it is a characteristic common to both.
Mount, 217 S.W.3d at 724. Rather, the distinction is a matter of degree depending
on the length of the detention, the amount of force employed, and whether the
officer actually conducted an investigation. Id.; Woods v. State, 970 S.W.2d 770,
775 (Tex. App.-Austin 1998, pet. refd).
A court must detennine reasonableness from the perspective of a reasonable
officer at the scene, making allowances for the fact that officers must often make
quick decisions under tense, uncertain, and rapidly changing circumstances.
Rhodes, 945 S.W.2d at 118. Relevant factors in the reasonableness inquiry are the
nature of the crime under investigation, the degree of suspicion, the location of the
stop, the time of day, the reaction of the suspect, and whether the officer actually
conducted an investigation afier seizing the suspect. Mount, 217 S.W.3d at 725;
Chambers v. State, 397 S.W.3d 777, 782 (Tex. App.—Houston [14th Dist.] 2013,
pet. refd).
The trial court found that “[t]he investigative detention of the Defendant was
lawful, in order to ensure officer safety, maintain the status quo, and ensure the
continued presence of the Defendant during the course of a brief investigation,
taking into consideration the nature of the area, time of night, and verified details
of the call.”
During the suppression hearing, Little testified that he received a dispatch
10
describing three or four African—American males using drugs and loading weapons
near a white pickup truck and a black Dodge Magnum at 8034 Antoine. When the
officers arrived at 8034 Antoine, they observed three African-American males
standing around a white pickup truck with a black Dodge Magnum parked nearby.
For officer safety the officers patted down the three men, handcuffed them, and
placed them in separate patrol cars. Little testified that although they found no
weapons during the pat-down search the handcuffs were necessary for the officers’
safety, and detention in the patrol cars was necessary to prevent the suspects from
fleeing. The officers then shined a flashlight into the white pickup truck and the
black Dodge Magnum. In response to Little’s question, appellant admitted the
Dodge Magnum was his vehicle.
Although Little detained appellant in the patrol car with handcuffs, the
amount of force was reasonable under the circumstances. The incident took place
at 4:00 a.m. in a parking lot in a high-crime area where Little had previously
responded to narcotics and weapons calls. Little conducted a brief investigation in
which he discovered narcotics in a car appellant admitted to be his. The trial
coutt’s finding that Little did not use more force than reasonably necessary to
protect himself and those around him during his brief investigation is supported by
the evidence at the hearing. See Balenline v. State, 71 S.W.3d 763, 771 (Tex. Crim.
App. 2002) (handcuffing and escorting appellant to patrol car did not transform
investigative detention into arrest where officer had reasonable concem for safety
because he was investigating crime involving a weapon).
Appellant argues the officers depri\ ed him of his freedom to a degree
comparable to a formal arrest. In support of his argument, appellant cites Ramirez
v. State, l05 S.W.3d 730, 740 (Tex. App.—Austin 2003, no pet.), and Alford v.
State, 22 S.W.3d 669, 672 (Tex. App.—Fort Worth 2000, pet. ref’d). Ramirez and
ll
Alford are distinguishable.
In Ramirez, an officer who arrived at Ramirez’s home in response to a
neighbor’s complaint noticed marijuana paraphernalia, marijuana residue, and the
odor of marijuana as Ramirez stepped out of the garage and closed the door behind
him. 105 S.W.3d at 735. A second individual, Reynosa, exited the garage and left
the door partially open. Id. at 736. The officer called for back-up because he
recognized Reynosa as a suspect in a shooting and became concerned that Reynosa
or Ramirez may have had weapons. Id. Reynosa was subjected to a pat down,
which revealed a knife and a plastic bag containing marijuana. Ia’. Reynosa was
arrested and moved away from the garage. Id. Ramirez was also subjected to a pat
down; while conducting the pat down, the officer told Ramirez he was being
detained and placed him in handcuffs. Id. The officer informed Ramirez that he
could see drug paraphernalia and drug residue in the garage and asked, “Is there
anything else I’m going to fmd in there that’s illegal, any more marijuana?" Id.
Ramirez replied, “Well, I guess there’s some pot in the red cooler.” Id.
The Austin Court of Appeals determined that Ramirez was in custody at the
time the officer asked whether he was going to find anything else in the garage
because a reasonable person in Ramirez’s position would likely believe his
freedom of movement had been restrained to the degree associated with an arrest.
Id. at 740. The court determined that by handcuffing Ramirez, telling him he was
being detained, and informing him that they had seen illegal items in the garage, a
reasonable person would have thought he was under arrest. la’.
The facts in Ramirez are distinguishable because Ramirez was near his
home; had been told he was being detained; and knew the officers had seen illegal
contraband in his garage. In contrast, the officers in this case had a report that there
were weapons being loaded and the men were in a parking lot in a high crime area
12
after dark. In Ramirez, unlike this case, the officers did not conduct an
investigation after detaining Ramirez.
In Alford, the appellant was seen driving on an interstate highway passing
cars and weaving in and out of lanes. Id. at 671. A police officer activated his siren
after following Alford’s truck for a distance; Alford responded by turning off the
interstate highway and into the back of a mobile home park. Ia’. When Alford did
not heed the officer’s request to get out of the truck, the officer pulled Alford out
of the truck; placed him on the ground; handcuffed him; and called for back-up. Id.
When back—up arrived six or seven minutes later, Alford was still in handcuffs and
the arriving officer asked whether he had been drinking. Ia’. at 672. Alford
admitted drinking six beers. Id.
The Fort Woith Court of Appeals held that Alford was in custody at the time
he admitted to drinking six beers. The court emphasized that by removing Alford
from the vehicle, placing him on the ground, handcufling him, and holding him for
back—up officers, the circumstances were elevated beyond those of an ordinary
traffic stop. Id. at 673.
Alford is distinguishable because Alford was physically removed from his
truck, placed on the ground, and handcuffed following a traffic stop. Id. at 671.
Alford then remained handcuffed for six or seven minutes until another officer
arrived on the scene who questioned him about his alcohol consumption. Id. at
671-72. In Alford, as in Ramirez, no investigation took place, and Alford was
“subjected to treatment that resulted in his being in custody for practical purposes.”
Id. at 673.
The facts here are closer to Balentine v. State, 71 S.W.3d at 767. Balentine
was placed in handcuffs and escorted to a patrol car while being questioned.
Before placing Balentine in the patrol car, an officer frisked him and did not find
13
any weapons. Id. Despite finding no weapons, the officer handcuffed Balentine,
placed him in a patrol car, and drove Balentine to a friend’s home. Ia’. Before being
released Balentine was patted down a second time and handcuffed for officer
safety despite the fact that the officer did not find any weapons. Id. The Court of
Criminal Appeals concluded that Balentine’s detention was not an arrest based on
the circumstances surrounding the investigation. Id. at 771. The court determined
that the detention was temporary and that the handcuffs and placement in the patrol
car did not elevate the temporary detention to an arrest because the officer
encountered Balentine in an area where gunfire had been reported; Balentine
exhibited suspicious behavior; and the restraint was necessary for officer safety
while investigating Balentine’s possible involvement in gunfire. Id. at 771.
We conclude that Little’s investigative detention of appellant was reasonable
and justified under the circumstances and did not constitute an unlawful arrest. The
trial court did not abuse its discretion in denying the motion to suppress appel1ant’s
oral statement. We overrule appellant’s second issue.
We affirm the trial court’sjudgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish —- Tex. R. App. P. 472(1)).
14
i\\‘.3EFTED
‘I4-I3-O(}7225-C11
FOURTEENTH COURT OF APPEIZ‘.
HOUSTON. TEXAS
10/24/2014 4:55:52 FL’!
'3HRl5TOP‘r|ER PRSN
CLERK
NO. 14-1'3‘-O072S.CR
IN THE F°‘j_§T5ENTH CQVRT OF APPEAIl§m COFl5ll§'lPO"l=‘
APPEALS
HOUSTON. TEXAS HOUSTON. TEXAS
10/24/2014 4:55:52 PM
* * *
CHRISTOPHER A. PRiNE
Cierk
JASON MICHAEL PLACID5.
Appellant,
v.
THE STATE OF TEXAS,
Appellée.
~
Iii!!!
Appeal fmm the 180"‘ Criminal District Court
Harris County, Texas
(Cause No. 1,353, 446)
Mo'1*‘r¥3N?n‘o1*zn1:H”Ei&R1Nc
T0 "ms HONORABLE"_QIf cognr OF APPEALS: .
H
Appellant Jason Michael Placideimoves this Court far rehearillg lpulsuant tO_ _
Rule 49, Texas Rules of A;ppg§}g$296 S.W.3d
140, 143 (Tex. App.-Houston [14 Dist] 2009, pet. ref'd) (past example). See also
Stewart v. Coldwell Banker & Company, 552 S.W.2d 904, 906 (Tex. Civ. App.-—
Houston [1“ Dist] 1977, writ ref‘d n.r.e.) (lack of prejudice); Costley v. State Farm
Fire and Casualty C0,, 894 S.W.2d 380, 387(Tex. App.-—Amarlll0 1997, writ
denied) (issue arising during appeal). Cf Reich-Bacat v. State, 952 S.W.2d 542,
543 (Tex. Crim. App. 1997) (mandatory opportunity to re~brief on remand from
Texas Court of Criminal Appeals flows fi'om indigent’s right to counsel); Oliver v.
State, 891 S.W.2d 651 (Tex. Crim. App. 1995) (same); Theus v. State, 863 S.W.2d
489, 491 (Tex. Crim. App. 1993) (same)
WHEREFORE, PREMISES CONSIDERED, Appellant Jason Michael
Placide respectfiilly asks this Court to grant this Motion for Rehearing, to withdraw
its Judgment and Opinion, and allow Appellant to re-brief this appeal in light of the
findings of fact and conclusions of law submitted in response to its. abatement
order.
Respectfillly submitted,
By: A/L q;-’.(_.g;..« ‘fig-»z<£q,¢l_,_‘_
MICHAEL A. McENRUE
TBC 13413589050
PO. Box 70978
Houston, Texas 77270-0978
(713) 862-1975
(713) 864-8587
mmcenrue@]ustice.com
ATTORNEY FOR APPELLANT
Certificate of Compliance
Pursuant to Texas Rule of Appellate Procedure 9.4(i) (3), I hereby certify
that the word count in the foregoing Appel1ant’s Motion for Rehearing calculated
under Rule of Appellate Procedure 9.4(i) (2) is 734 words.
L4 '¢='~Cv{.~., \ »S7,.,4-,£A_.._.
Michael A. McEnrue
Certificate of Service.
I hereby certify that a true copy of the foregoing Appel1ant’s Motion for
Rehearing was sent to the following patties or counsel of record this 24th day of
October, 2014 by mail in compliance with Rules 9.5, Texas Rules of Appellate
Procedure:
Eric Kugler
Assistant District Attorney
1201 Franklin, Sixth Floor
Houston, Texas 77002
A. 11,4-,¢'r¢. xeé 4‘! v-/A/:4/5—c.w‘-
Michael A. McEnrue