Rocha, Cesar

PD-0407-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/25/2015 2:37:50 PM
Accepted 5/26/2015 10:51:44 AM
ABEL ACOSTA
NO. PD-0407-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
CESAR ADOLFO ROCHA-MORENO, Petitioner/Appellant,
v.
THE STATE OF TEXAS, Respondent/Appellee.
CORRECTED PETITION FOR DISCRETIONARY REVIEW
BY PETITIONER/APPELLANT
ON APPEAL FROM THE FIRST COURT OF APPEALS’ JUDGMENT
AND OPINION IN CASE NO. 01-13-00897-CR
TRIAL COURT CAUSE NO. 1914250
IN THE COUNTY CRIMINAL COURT AT LAW NO. 1
HARRIS COUNTY, TEXAS
John M. Bray, Esq.
Texas Bar No. 24081360
Counsel for Petitioner/Appellant
OOSTERHOF & BRAY, PLLC
1910 Pacific Ave., Ste. 15550
May 26, 2015 Dallas, Texas 75201
Tel: (214) 550-4664
Fax: (214) 550-4654
Email: john@oblawfirm.com
ORAL ARGUMENT REQUESTED
IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL
Pursuant to Tex. R. App. Pro. 38.1(a) and 68.4(a), the following is a complete
list of the names and addresses of all parties to the trial court’s final judgment, their
trial counsel, and their appellate counsel.
APPELLANT Cesar Adolfo Rocha-Moreno
Trial Counsel & Appellate Counsel John M. Bray
SBN 24081360
1910 Pacific Ave., Suite 15550
Dallas, Texas 75201
Appellate Co-Counsel Melissa M. Oosterhof
SBN 24079946
1910 Pacific Ave., Suite 15550
Dallas, Texas 75201
APPELLEE Hon. Devon Anderson
State of Texas Harris County District Attorney
Harris County Criminal Justice Center
1201 Franklin Street, Suite 600
Houston, Texas 77002
Trial Counsel Maritza A. Glenn
SBN 24075493
Trial Co-Counsel Cara E. Burton
SBN 24068399
Appellate Counsel Alan K. Curry
SBN 05263700
Appellate Counsel David C. Newell
SBN 00000018
TRIAL JUDGE Hon. Paula Goodhart
Harris County Criminal 1201 Franklin Street, 8th Floor
Court at Law No. 1 Houston, Texas 77002
i
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Facts of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. Grounds for Review Numbers One & Two . . . . . . . . . . . . . . . . . . . . . . . . 2
Ground One: The Court of Appeals erred when it affirmed the trial
court’s denial of Appellant’s suppression motion without finding
what constitutes a “high-crime area” and without remanding to
determine whether Appellant was detained within a “high-crime”
area.
Ground Two: Even if Appellant was detained in a high-crime area,
his sitting in a running vehicle, without more, amounts to mere
presence in a high-crime area and does not give rise to reasonable
suspicion.
A. Summary of the Argument – First and Second Grounds for Review . . . . . 2
B. Argument & Authorities – First and Second Grounds for Review . . . . . . 3
1. The Court of Appeals Erred in Applying the Standard for
“Reasonable Suspicion” Instead of “Consensual Encounters” . . . 3
ii
2. Even If the Area Was a High-Crime Area, Reasonable Suspicion
Still Did Not Exist Because Appellant Was Merely Present in a
Purportedly High-Crime Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Because the Court of Appeals Incorrectly Concluded Reasonable
Suspicion Existed, It Erroneously Concluded the Detaining Officer
Had Probable Cause to Arrest Rocha . . . . . . . . . . . . . . . . . . . . . . . 11
4. The Correct Standard of Review Was That Governing Consensual
Encounters, Because Detention Was Not Justified . . . . . . . . . . . . . 14
C. Conclusion – First and Second Grounds for Review . . . . . . . . . . . . . . . . 16
II. Ground for Review Number Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Ground Three: The Court of Appeals erroneously affirmed the trial
court’s denial of Appellant’s request for an article 38.23 jury
instruction regarding whether the area in which Appellant was
detained was a high-crime area.
A. Summary of the Argument – Third Ground for Review . . . . . . . . . . . . . . . 16
B. Argument & Authorities – Third Ground for Review . . . . . . . . . . . . . . . . . 17
C. Conclusion – Third Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Compliance and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Appendix
iii
INDEX OF AUTHORITIES
Federal Cases
Brown v. Texas, 443 U.S. 47 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Fla. v. Bostick, 501 U.S. 429 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 15
Fla. v. J.L., 529 U.S. 266 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) . . . . . . . . . . . . . 5, 6
Illinois v. Wardlow, 528 U.S. 119 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7, 9, 11
Michigan v. Chestnut, 486 U.S. 567 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Terry v. Ohio, 392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12
United States v. Mendenhall, 446 U.S. 544 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Soares, 521 F.3d 117 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Wright, 582 F.3d 199 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 5, 9
Texas Cases
Amorella v. State, 554 S.W.2d 700 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . 10
Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . 18
Cronin v. State, 2005 Tex. App. LEXIS 10450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Gurrola v. State, 877 S.W.2d 300 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . 7
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . 7
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . 3
Hernandez v. State, 376 S.W.3d 863 (Tex. App.—Fort Worth 2012) . . . . . . . . . . . . 15
Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . 17
iv
Jordan v. State, 394 S.W.3d 58 (Tex.App.—Houston [1st Dist.] 2012) . . . . . . 12, 13
Klare v. State, 76 S.W.3d 68 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d) . . . 8
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . 17
Parker v. State, 206 S.W.3d 593 (Tex.Crim.App.2006) . . . . . . . . . . . . . . . . . . . . . 13
Scott v. State, 549 S.W.2d 170 (Tex. Crim. App. 1976) . . . . . . . . . . . . . . . . . . . . . . 8
Shaffer v. State, 562 S.W.2d 853 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . 8
State v. Garcia-Cantu, 253 S.W.3d 236 (Tex.Crim.App.2008) . . . . . . . . . . . . . . . . 15
State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . 4
Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . 4
Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . 4
Texas Statutes / Codes
TEX. CODE OF CRIM. PROC., art. 38.23 . . . . . . . . . . . . . . . . . . . . . . . . . . iii, viii, 16-18
TEX. PEN. CODE § 481.121(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Texas Rules
Tex. R. App. Proc. 38.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Tex. R. App. Proc. 49.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Tex. R. App. Proc. 49.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Tex. R. App. Proc. 68.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Constitutional Provisions
U.S. CONST., amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
v
STATEMENT REGARDING ORAL ARGUMENT
Because of the significance and complexity of the issues, particularly the
question of a “high-crime area,” as well as the difficulty encompassed in explaining
the physical, positional relationship between the detaining officer and Appellant
leading up to the detaining officer’s detention of Appellant, the undersigned believes
that oral argument would benefit the parties and Assist the Court. Appellant
therefore respectfully requests the opportunity to present oral argument in this case.
STATEMENT OF THE CASE
Appellant was convicted of possession of marihuana. Prior to trial, Appellant
sought the court to grant a pretrial motion to suppress, which the trial court carried
with trial. The suppression motion, and this Petition, focuses on the proper definition
of a “high-crime area” and concerns whether Appellant’s mere presence in a running
vehicle in a high-crime area can give rise to reasonable suspicion to detain.
Significantly, no court having jurisdiction over this matter has defined the term
“high-crime area,” so if this decision is allowed to stand, it will have far-reaching
consequences that conflict with United States Supreme Court precedent.
STATEMENT OF PROCEDURAL HISTORY
Appellant was charged by information with the offense of Possession of
Marihuana, 2 to 4 ounces, a Class A Misdemeanor offense under Texas Penal Code
vi
§ 481.121(b)(2), in Cause No. 1658777 in County Criminal Court at Law No. 1 of
Harris County, Texas. Under the advice of then-counsel, Appellant pleaded guilty to
the offense charged on April 19, 2010 to obtain a reduced sentence of 30 days in jail.
On the date of trial, the State was not prepared to proceed to trial, so it
dismissed the offense on August 20, 2013 and immediately refiled this offense by
information in Cause No. 1914250 on the same day, August 20, 2013.
A jury convicted Cesar Adolfo Rocha-Moreno of the offense as charged. 5
R.R. 215. The jury assessed Rocha’s punishment at 270 days in the Harris County
Jail. 6 R.R. 37. The Honorable Paula Goodhart, presiding judge of the County
Criminal Court at Law No. 1 of Harris County, sentenced Rocha accordingly, giving
106 days credit for time served. 6 R.R. 38-39. Rocha timely filed a notice of appeal.
Appellant’s appeal was dismissed in a memorandum opinion issued on
October 16, 2014 by a Panel of the First Court of Appeals consisting of Justices
Higley, Bland, and Sharp. Appellant’s deadline for filing a motion for
reconsideration en banc pursuant to Tex. R. App. Proc. 49.7 was October 31, 2014,
as the Court of Appeals’ judgment and order issued on October 16, 2014. Appellant
timely filed a motion pursuant to Tex. R. App. Proc. 49.8 requesting an extension of
time to file the present Motion for Reconsideration En Banc, which motion was
granted, extending the filing deadline to November 10, 2014, on which date
vii
Appellant filed a Motion for Reconsideration En Banc. On March 12, 2015, a
three-judge panel of the First Court of Appeals denied Appellant’s motion for
rehearing en banc, affirmed the judgment of the trial court, but it withdrew its
opinion and judgment issued October 16, 2014 and issued a published opinion and
judgment in their stead. Rocha v. State, No. 01-13-00897-CR (Tex.App.—Houston
[1st Dist.] March 12, 2015). By previous Order of this Court, the instant “Petition for
Discretionary Review” is timely filed if presented to the Clerk of the Court on or
before May 13, 2015.
GROUNDS FOR REVIEW
1. The Court of Appeals erred when it affirmed the trial court’s denial of
Appellant’s suppression motion without finding what constitutes a
“high-crime area” and without remanding to determine whether Appellant
was detained within a “high-crime” area.
2. Even if Appellant was detained in a high-crime area, his sitting in a running
vehicle, without more, amount to mere presence in a high-crime area and does
not give rise to reasonable suspicion to detain.
3. The Court of Appeals erroneously affirmed the trial court’s denial of
Appellant’s request for an article 38.23 jury instruction regarding whether the
area in which Appellant was detained was a high-crime area.
viii
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW Cesar Adolfo Rocha-Moreno (hereinafter “Rocha”),
Appellant herein, by and through his undersigned attorneys, and respectfully
submits this Corrected Petition for Discretionary Review. In support of thereof,
Appellant would show unto the Court as follows:
FACTS OF THE CASE
On the evening of February 4, 2010, Rocha was arrested in southwest
Houston for Possession of Marijuana. 5 R.R. 77. Rocha was sitting in his parked
vehicle, a blue Ford Expedition, waiting for his friend Brian Matthews to come greet
him. 5 R.R. 77-78. Rocha was not alone, as two friends, Troy Greer and Tristan
Greer, were also sitting in the vehicle. 5 R.R. 78; see also 5 R.R. 94. Sometime
around 8:30 p.m., after having been merely present for around five minutes, two
men approached the vehicle—one of them knocked on the driver’s side window
with his gun drawn. 5 R.R. 78-79. Everyone inside the vehicle initially thought they
were about to be robbed. See 5 R.R. 82; see also 5 R.R. 96.
One of the men who approached the vehicle was the detaining officer, J.P.
Cruz, of the Houston Police Department. 5 R.R. 97. The other man, described as
African-American, remained unidentified. 5 R.R. 97-98. Officer Cruz was wearing a
police “attack vest” that read “Houston Police,” along with blue pants and a “beanie
1
cap,” due to cold weather. 4 R.R. 29. Officer Cruz was on foot, as his car was parked
in front of the apartment leasing office. 4 R.R. 34.
Officer Cruz testified he had seen drug dealers enter the apartment complex in
their vehicles that they would leave running, since the drug dealers “would not be
there for very long.” 4 R.R. 34-36. After seeing Rocha’s vehicle parked in the
apartment parking lot for about five to ten minutes, the officer then decided to
approach Rocha’s vehicle—with his gun drawn. 4 R.R. 39, 40. The officer engaged
in what he termed a “consensual encounter”—it was not until trial that the officer
claimed Rocha was suspicious because he was in a parked, running vehicle for about
five to ten minutes in what the officer deemed a “high crime area.” 5 R.R. 42-43.
Reasoning the officer had reasonable suspicion due to Rocha’s sitting in a
parked, running vehicle in a high-crime area, the trial court denied Rocha’s
suppression motion. Rocha’s trial counsel requested various jury instructions,
including an instruction concerning whether the area in which Rocha was detained
amounted to a high-crime area, but the trial court denied this request upon deeming
the issue was allegedly not contested.
ARGUMENT
I. GROUNDS ONE AND TWO
A. Summary of the Argument
2
Appellant would respectfully contend the Court of Appeals did not apply the
appropriate standard of review—concerning consensual encounters—and instead
applied the incorrect standard of review—reasonable suspicion to justify an
investigatory detention. The officer did not have reasonable suspicion to detain
Appellant, because Appellant was not found in a high-crime area. However, even
assuming arguendo the area is one that may be characterized as high in crime, the
officer’s investigatory detention of Appellant is still not justified, because it
ostensibly rests on little more than Rocha’s mere presence in a purportedly
high-crime area. Because the Court of Appeals applied the incorrect standard, it
likewise erred in concluding probable cause existed when Appellant’s unjustified
detention enabled the officer to smell marijuana.
B. Arguments and Authorities
1. The Court of Appeals Erred in Applying the Standard for
“Reasonable Suspicion” Instead of “Consensual Encounters”
Even the Officer and the Prosecution Believed the Detaining Officer Was
Engaging Appellant in Consensual Encounter
Appellant contends the Court of Appeals erroneously upheld the trial court’s
denial of Appellant’s motion to suppress Appellant’s unjustified detention by
misconstruing the law as it applied to the facts of Appellant’s case. Court of Appeals
Opinion (“Ct. App. Op.”) at 12. Although appellate courts give great deference to
trial court findings of historical facts, Guzman v. State, 955 S.W.2d 85, 89 (Tex.
3
Crim. App. 1997), reviewing courts should only sustain trial court rulings if they are
reasonably supported by the record. Willover v. State, 70 S.W.3d 841, 845 (Tex.
Crim. App. 2002).
Encounters between law enforcement and citizens are classified into three
categories: (1) consensual encounter, (2) investigatory detentions, and (3) arrests.
State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011). Under the law
of search and seizure, the reasonable suspicion standard governs the second
category—“brief detentions which falls short of being fullscale searches and
seizures.” Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). In Illinois v.
Wardlow, 528 U.S. 119, 123-24 (2006), the United States Supreme Court instructed
that where a police officer’s detention of a suspected criminal is not justified, “the
individual has the right to ignore the police and go about his business.” Thus, if the
officer approached Rocha without reasonable suspicion or probable cause, Rocha
was free to ignore the detaining officer. Compare id. at 125 (regarding implications
of lack of reasonable suspicion), with 4 R.R. 37 (officer testified he wanted to
engage Rocha in consensual encounter to find out why he and passengers were in
vehicle), and 4 R.R. 40 (officer testified “I began a consensual encounter with them
[Rocha and his passengers], simply asked what he was doing there.”).
Clearly, the officer’s suspicion was no more than the “inchoate and
4
unparticularized suspicion or ‘hunch’ of criminal activity” prohibited by Terry. See
Illinois v. Wardlow, 528 U.S. at 123-24, citing Terry v. Ohio, 392 U.S. at 27.
Furthermore, even the prosecution did not initially argue the officer had reasonable
suspicion, but rather that it was a consensual encounter, until they were ostensibly
guided to this argument by the trial court. 5 R.R. 189.
Geographic Area Where Appellant Was Detained Was Too Broad in Scope to
Comprise a “High-Crime Area” Reliably Predictive of Future Criminality
Undersigned Counsel could not find any Texas legal precedents from any
courts having jurisdiction over Rocha’s case that precisely define what amounts to a
“high-crime area.” However, where an officer testifies that an area is one of
expected criminal activity based on the officer’s experience, the trial court should
not draw inferences about the character of the area based on the officer’s
“experience and expertise” unless the officer expressly so testifies. United States v.
Wright, 582 F.3d 199, 207 (1st Cir. 2009). Indeed, it is the task of appellate courts to
eschew such illations where not properly supported, but here, the Court of Appeals
did just the opposite. See id.
Indeed, the Court of Appeals erroneously upheld the trial court’s
determination that the area in question was a high-crime area, even though the area
purported to be a “high-crime area” includes a questionably large area of southwest
Houston. See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 578 (S.D.N.Y.
5
2013) (observed that the term “‘High-Crime Area’ is also of questionable value
when it encompasses a large area or an entire borough, such as Queens or Staten
Island.”). If this Court grants discretionary review, Appellant would urge the Court
to define a “high-crime area” just as it would any other factor that may contribute to
a finding of reasonable suspicion; whether an area is a “high-crime area” should turn
on whether it is so limited in geographical scope as to afford future predictive value
to law enforcement. Compare Alabama v. White, 496 U.S. 325, 329, 332 (1990)
(reasonable suspicion justified where based on anonymous tip predicting
defendant’s behavior that could be independently verified), with Florida v. J.L., 529
U.S. 266, 270, 274 (2000) (reasonable suspicion did not exist where anonymous tip
could not be suitably corroborated by indicia of reliability to have predictive value).
Appellant would contend the area described by the detaining
officer—southwest Houston—comprises too expansive a geographic area too retain
sufficient predictive value for the incidence of future criminality. See 4 R.R. 20
(officer’s description of high-crime area as essentially comprising all of southwest
Houston); see also 5 R.R. 77 (description of allegedly “high-crime area” where
Rocha detained). Compare Floyd v. City of New York, 959 F. Supp. 2d 578
(description of geographical area as high-crime area of questionable value where it
is too expansive), with 4 R.R. 20 (officer testified as follows: “[T]here are a few high
6
crime areas that you may see on the TV a lot and that’s pretty much where I am at.
That would include South Braeswood, Grand Park Gulf and Grandmont, Grand
Parkway, Harwin. People may be familiar with that being Southwest Houston.”).
2. Even If the Area Was a High-Crime Area, Reasonable
Suspicion Still Did Not Exist Because Appellant Was Merely
Present in a Purportedly High-Crime Area
The Court of Appeals’ Decision Conflicts with Texas and Federal Precedent
The Court of Appeals’ erred in concluding the officer had reasonable
suspicion to detain Rocha, since the officer’s “specific, articulable facts” as required
by Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011), consisted
only of Rocha’s waiting in a running vehicle for several minutes in what the officer
deemed to be a high-crime area. See Ct. App. Op. at 11.
For, even assuming arguendo that this area was not impermissibly broad or
was actually an area of expected criminal activity, this assemblage of factors is no
more indicative of criminality than Rocha’s mere presence in a high-crime
area—something this Court and the Supreme Court have explicitly prohibited. See
Illinois v. Wardlow 528 U.S. 119, 124-25 (2006) (accused’s mere presence in
high-crime area insufficient to give rise to reasonable suspicion to detain); accord
Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (no reasonable
suspicion where suspects were arguing, as mere presence in high-crime area
7
insufficient to justify detention); Shaffer v. State, 562 S.W.2d 853, 854 (Tex. Crim.
App. 1978) (no reasonable suspicion where taxi driving slowly in commercial lot of
closed businesses at night); Scott v. State, 549 S.W.2d 170, 172-173 (Tex. Crim.
App. 1976) (despite high-crime area, no reasonable suspicion where only other
factors were awareness of thefts in nearby apartments, black males driving Cadillac
at 1:30 a.m., and observation of sheeting material in car’s back seat); Klare v. State,
76 S.W.3d 68, 77 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d) (no reasonable
suspicion where truck parked in lot of closed strip at 2:00 a.m., despite high-crime
area). Of course the engine of Rocha’s vehicle was running—it was early February
and apparently cold, as even the detaining officer was wearing a “beanie.” 4 R.R. 29.
In this regard, the Court of Appeals erred in concluding the officer had
reasonable suspicion based upon his testimony that Rocha was in a “high-crime
area” while in a mobile vehicle. However, the officer conceded that effectively the
only reason he approached Rocha’s vehicle was because he was present in a running
vehicle in an area purportedly “known to be high in criminal narcotic activity.” 5
R.R. 41-43. Yet, the fact that crime is more likely in one geographical area than
another does not, by itself, satisfy the standards required for an interrogatory stop.
United States v. Brignoni-Ponce, 422 U.S. 873, 882, 886 (1975); see also Brown v.
Texas, 443 U.S. 47 (1979) (same).
8
Indeed, Supreme Court precedent, which clearly prohibits such detentions,
instructs that mere presence in an area of expected criminal activity is never enough
to justify an investigatory detention, but rather, courts should consider this in the
totality of the circumstances along with other factors, such as time of day or night,
unprovoked flight from a uniformed police officer, unusual behavior, or a
progression of these and related factors. See, e.g., Illinois v. Wardlow, 528 U.S. at
124-25 (factors included unprovoked flight); see also United States v. Soares, 521
F.3d 117, 120-21 (1st Cir. 2008) (factors included unusual behavior); United States
v. Wright, 582 F.3d 199, 213 (1st Cir. 2009) (progression of factors). Additionally,
decisions from multiple Texas appellate courts indicate that factors even less
innocuous than those present in Rocha’s case do not justify detention where
presence in a high-crime area is a factor. See, e.g., Cronin v. State, 2005 Tex. App.
LEXIS 10450, 20-21 (observing reasonable suspicion based on presence in
high-crime area amounts to speculation unless evidence shows defendant’s
“activities are similar in time, place, and performance” to previous crime).
The Court of Appeals’ Decision Overlooks the Absence of Important Factors
Necessary to a Finding of Reasonable Suspicion to Detain Rocha
Furthermore, the Court of Appeals committed legal error in concluding that
the officer recited specific, articulable facts. Ct. App. Op. at 11. According to the
Court of Appeals, these factors—“the passengers and driver waited in the car for
9
several minutes at a location where he previously had observed narcotics activity,
without turning off their car engine or lights or exiting the car”—gave rise to
reasonable suspicion justifying Rocha’s detention. Id. However, where this Court
has considered similar factors in concluding that reasonable suspicion existed in
other cases, it was only in combination with other, more suspicious factors. Amorella
v. State, 554 S.W.2d 700, 701-702 (Tex. Crim. App. 1977) (vehicle parked in
high-crime area with lights on and motor running, in combination with defendant’s
furtive movements, gave rise to reasonable suspicion).
In Amorella, this Court held that in addition to the aforementioned factors, the
suspects exhibited a furtive demeanor—there, a suspect who was standing outside
the parked vehicle closed the trunk, got in the car, and started driving away after
seeing the police officer—unlike Rocha, who exhibited no such behavior. Compare
id. at 702, with 5 R.R. 39-43. Moreover, the defendant in Amorella was detained
around 1:30 a.m., whereas Rocha was detained at approximately 8:30 p.m., and
indeed, the officer never even mentioned the time of detention as a factor justifying
Rocha’s detention. 5 R.R. 39-43 (observe line of questioning in which detaining
officer testified that the only factors he considered before detaining Rocha were
motor running, lights were on, and presence in area where officer had previously
observed criminal activity).
10
In other words, Rocha and his friends were merely present in a “high-crime
area,” even if the area could be characterized as high in crime. Compare id.
(defendant’s mere presence in running vehicle in purportedly high-crime area as
justification for detention) with Illinois v. Wardlow, 528 U.S. 124-25 (mere presence
in high-crime area cannot per se give rise to reasonable suspicion to justify
detention). Even with this testimony, at no point time did the officer articulate that
he had any belief Rocha or the passengers in his vehicle were involved, were about
to be involved, or had been involved in any type of criminal activity prior to making
contact with Rocha’s vehicle. 4 R.R. 37.
3. Because the Court of Appeals Incorrectly Concluded
Reasonable Suspicion Existed, It Erroneously Concluded the
Detaining Officer Had Probable Cause to Arrest Rocha
The Court of Appeals’ March 12, 2015 opinion reached a conclusion
inconsistent with relevant Federal and State precedent when it concluded the officer
necessarily had probable cause after smelling marijuana. Ct. App. Op. at 11-12.
Specifically, the Court of Appeals based its conclusion of probable cause on the
premise the officer had established reasonable suspicion to detain Rocha and his
passengers and, in the Court of Appeals’ view, it was thus irrelevant whether the
officer smelled marijuana emanating from Rocha’s car before or after Rocha exited
the vehicle. Ct. App. Op. at 11-12. However, this is of crucial importance—for, if
11
the officer did not have reasonable suspicion to detain Rocha, then he likewise could
not develop probable cause to arrest Rocha, unless he smelled marijuana before
detaining Rocha. Terry v. Ohio, 392 U.S. 1, 27, 30 (1968).
Appellant asserted and continues to assert that his detention by Officer Cruz
commenced only after the officer had already approached Rocha’s vehicle with
flashlight in hand and weapon drawn and initiated the detention of Rocha. 5 R.R.
184. Stated otherwise, the Court of Appeals erred in that it first should have
considered whether reasonable suspicion existed, and then only if there was
reasonable suspicion, determine whether probable cause existed. Terry v. Ohio, 392
U.S. at 25. Otherwise, the Court of Appeals should have concluded the officer’s
actions, including approaching Rocha’s vehicle in an intimidating manner indicative
of a show of authority, constituted an unlawful detention violating the Fourth
Amendment. See Florida v. Bostick, 501 U.S. 429, 446 (1991) (held intimidating
show of force renders encounter non-consensual).
Appellant’s Case Is Distinguishable From Cases Cited by Court of Appeals
Citing to Jordan v. State, the Court of Appeals observes that the odor of burnt
marijuana wafting out of a vehicle gives rise to probable cause to search a vehicle’s
occupants and seize contraband contained in the vehicle. See Ct. App. Op. at 10, 12,
14 (citing Jordan v. State, 394 S.W.3d 58, 64 (Tex.App.—Houston [1st Dist.] 2012),
12
which in turn cites Parker v. State, 206 S.W.3d 593, 597 n. 11
(Tex.Crim.App.2006)).
However, the Court of Appeals’ reliance on Jordan v. State and related cases
is misplaced, as it is distinguishable from this case. The windows of Rocha’s vehicle
were completely rolled up, whereas the defendant in Jordan rolled down his
vehicle’s windows and greeted the detaining officers. Compare Jordan, 394 S.W.3d
at 62, 63 (regarding windows), with 5 R.R. 15 (officer does not “remember exactly
when [Rocha] rolled [the window] down all the way”). Additionally, testimony
elsewhere supports the assertion that Rocha’s windows remained rolled up at all
times before his detention. 5 R.R. 95. Likewise, Parker concerned a defendant
whose windows were rolled down. Parker v. State, 206 S.W.3d at 597. A fortiori, the
officers in Jordan did not even draw their weapons or activate their emergency
lights, whereas the detaining officer in Rocha’s case conceded he held his weapon
drawn upon approaching Rocha’s vehicle. Compare Jordan, 394 S.W.3d at 62 (no
show of force by officers greeted by defendant), with 5 R.R.18-19 (detaining officer
admitted to drawing his weapon and holding flashlight prior to approaching Rocha’s
vehicle).
Furthermore, both the Court of Appeals and trial court erroneously concluded
that whether a detention had occurred is irrelevant to Fourth Amendment analysis,
13
especially if the detaining officer smells marijuana upon approaching Rocha’s
vehicle. Cf. Ct. App. Op. at 13-14 (Court of Appeals determined when officer
smelled marijuana is irrelevant, as long as the officer’s initial justification for
detaining Rocha was justified), with 5 R.R 192-93 (discussing trial court’s findings).
Even the State did not argue the officer smelled the marijuana through a closed
vehicle—only once the window was allegedly rolled down did the officer
purportedly smell the marijuana. 5 R.R. 8, 12, 212 (testimony of officer elicited by
State; State’s closing argument).
4. The Correct Standard of Review Was That Governing
Consensual Encounters, Because Detention Was Not Justified
Despite the Court of Appeals’ conclusion that probable cause existed, it only
did so on the mistaken premise that the officer had reasonable suspicion to detain
Rocha. Instead of concluding reasonable suspicion existed, the Court of Appeals
should have viewed this incident as an unjustified detention. Where an officer
approaches a defendant with weapon drawn and simultaneously shines a flashlight
on the defendant, the police officer’s actions constitute a show of authority or force
that initiates a detention. See Florida v. Bostick, 501 U.S. 429, 446 (1991) (held
visibility of officer’s gun “in a recognizable weapons pouch” and use of flashlight
amounts to intimidating show of force rendering encounter with defendant
nonconsensual). See also United States v. Mendenhall, 446 U.S. 544, 554 (1980)
14
(opinion of Stewart, J.) (held encounter was not consensual where officers displayed
weapon); Michigan v. Chestnut, 486 U.S. 567, 575 (1988) (display of weapon
contributes to coercive environment); State v. Garcia-Cantu, 253 S.W.3d 236, 243
n. 35 (Tex.Crim.App.2008) (listing numerous factors for consideration of whether a
police encounter amounted to a Fourth Amendment seizure) Hernandez v. State, 376
S.W.3d 863 (Tex. App.—Fort Worth 2012) (appeal granted where evidence of
record concerning detaining officer’s spotlight position could not be found to
support conviction).
Furthermore, whether an encounter was consensual turns on whether a
reasonable person would feel free to walk away. Florida v. Bostick, 501 U.S. 429,
446 (1991). Whether a reasonable person would feel free to walk away is a factor for
consideration but is not the only factor for consideration, as “it says nothing about
whether or not the police conduct at issue was coercive.” Id. Instead, the Supreme
Court has held a defendant’s freedom of movement is merely a clue as to the
appropriate inquiry—whether a reasonable person would feel free to decline the
officer’s requests and terminate his encounter with the officer. Id. Regardless of this,
the Court of Appeals’ conclusion the officer smelled marijuana overlooks the
preliminary issue of how the officer came into a position to smell marijuana in the
first place. Ct. App. Op. at 13.
15
C. Conclusion – First and Second Grounds for Review
Appellant would submit that the Court of Appeals erred insofar as its opinion
affirming the trial court’s denial of Appellant’s suppression motion is inconsistent
with state and federal precedent. The Court of Appeals also either misinterpreted or
overlooked certain key facts of Appellant’s case, particularly with regards to the
detaining officer’s failure to properly develop reasonable suspicion. Therefore, this
Court should grant discretionary review.
II. GROUND THREE
A. Summary of the Argument – Third Ground for Review
The Court of Appeals erred in affirming the trial court’s denial of Appellant’s
requests for jury instructions pursuant to Tex. Code Crim. Proc. art. 38.23. Because
the Court of Appeals misinterpreted applicable case law, it concluded that all factual
issues for which Appellant requested a jury instruction were either immaterial or
undisputed. This conclusion apparently rests in part on the trial court’s
determination that reasonable suspicion existed, resulting in a denial of Appellant’s
suppression motion. Nevertheless, Appellant’s issues were clearly disputed and
material, as the jury should have been allowed to consider and resolve factual issues
in light of the perceived lawfulness of how the evidence was obtained.
16
B. Argument and Authorities – Third Ground for Review
The Court of Appeals correctly states the rule from Tex. Crim. Pro. Art.
38.23—a trial court must instruct the jury to disregard unlawfully obtained evidence
if a fact issue exists concerning the legality of the manner in which the police
obtained the evidence. Ct. App. Op. at 12, citing Madden v. State, 242 S.W.3d 504,
510 (Tex. Crim. App. 2007). However, the Court of Appeals’ analysis concerning
whether a jury instruction was warranted on disputed issues of material fact is
flawed, as the court had already erroneously determined the officer had reasonable
suspicion to detain Rocha based on his mere presence in a high-crime area.
This Court has previously held that a defendant is still entitled to an Article
38.23 jury instruction as long as the evidence raises a factual issue as to the
lawfulness of obtaining that evidence. Holmes v. State, 248 S.W.3d 194, 196 (Tex.
Crim. App. 2008) (defendant still entitled to jury instruction even if he affirmatively
states ‘No objection’ when evidence offered). “These are two distinct issues: one is a
legal question of admissibility for the judge and the other is a question of disputed
fact for the jury’s consideration and resolution.” Id. Consequently, the Court of
Appeals also erred in concluding Rocha was not entitled to a jury instruction on
whether the detaining officer had displayed his gun as a show of force, whether a
reasonable person in Rocha’s position would have felt free to leave, and whether the
17
area where Rocha was detained was a high-crime area, as a jury instruction on any
one of these factual issues might have caused the jury to consider and resolve this
case differently. Cf. Atkinson v. State, 923 S.W.2d 21, 23 (Tex. Crim. App. 1996)
(“[W]hen there are disputed issues of fact affecting the legality of [the evidence’s]
seizure, the question of exclusion may be tried to the jury.”), with Ct. App. Op. at 13
(Court of Appeals’ erroneous determination that factual issues for which Appellant
sought jury instruction were either undisputed or immaterial after trial court’s denial
of suppression motion).
Moreover, the Court of Appeals erred in concluding Appellant failed to
contend that the area where Rocha was detained was a high-crime area. Ct. App. Op.
at 13. To the contrary, Appellant requested an Article 38.23 jury instruction to put
this very issue before the jury, but the trial court refused to do so, apparently in large
part based on defense witness’s testimony they possessed marijuana–something the
officer could not have perceived. 5 R.R. 194. Yet, the Court of Appeals concluded
that these factual issues were either undisputed or immaterial. Ct. App. Op. at 13.
Additionally, the Court of Appeals initially determined that “no one contested
[the officer’s] testimony that he smelled marijuana as soon as he reached the car.”
Panel Opinion at 11. Ultimately, the Court of Appeals withdrew its earlier Panel
Opinion and replaced it with a published opinion concluding that this issue of fact
18
was “not material” because the officer “could have smelled marijuana as the
passengers exited the car.” Ct. App. Op. at 14. However, that is not when the officer
purportedly smelled marijuana, and it relies on a fallacious conclusion, i.e., that the
officer had already developed reasonable suspicion to detain Rocha and his
passengers. Ct. App. Op. at 14.
On the contrary, this factual issue is absolutely material, because the jury may
well have acquitted Rocha if it had been permitted to consider whether the officer’s
failure to detect marijuana prior to engaging Rocha resulted in an unlawful
detention. See Ct. App. Op. at 14; see also 5 R.R. 188, 197 (request for jury
instruction regarding whether windows were rolled up or down).
Moreover, Appellant would submit that the trial court’s failure to allow the
requested jury instructions—in addition to the trial court’s earlier denial of
Appellant’s suppression motion—constitutes reversible error because it influenced
the jury insofar as it prevented the jury from considering the lawfulness of evidence
seized by the officer. See Barshaw v. State, 342 S.W.3d 91, 93-94
(Tex.Crim.App.2011) (discussing Tex. R. App. Proc. 44.2(b), held appellate courts
should overturn convictions where trial court’s error affects defendant’s substantial
rights and influences the jury).
19
C. Conclusion – Third Ground for Review
The Court of Appeals should have reversed the trial court’s denial of
Appellant’s request for jury instructions on multiple issues, including whether
Rocha’s windows were rolled up, which prompted the larger question—whether the
detaining officer could smell marijuana coming from Rocha’s vehicle when he
approached it. For, if the windows were in fact rolled up, the jury could have found
the officer acted unlawfully in seizing the marijuana. Because the Court of Appeals
misapplied the law, this Court should grant discretionary review.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court
grant discretionary review, and upon submission of the case, vacate the judgments of
the courts below, and remand this case for a new trial.
Respectfully submitted,
OOSTERHOF & BRAY, PLLC
1910 Pacific Ave., Ste. 15550
Dallas, Texas 75201
Tel: (214) 550-4664
Fax: (214) 550-4654
Email: john@oblawfirm.com
By: /s/ John M. Bray
John M. Bray
Texas Bar No. 24081360
ATTORNEY FOR APPELLANT
20
CERTIFICATE OF COMPLIANCE AND DELIVERY
This is to certify that: (1) this document, created using Microsoft Word, Version
14.0.7143.5000, contains 4,498 words, excluding those items permitted by Rule
9.4(i)(1) , Tex. R. App. Proc., and complies with Rules 9.4(i)(2)(B) and 9.4(i)(3),
Tex. R. App. Proc.; and (2) on May 25, 2015, a true and correct copy of the above
and foregoing Corrected Petition for Discretionary Review, as well as any and all
attachments thereto, was transmitted via the eService function on the State’s e-Filing
portal, to Alan Curry (CURRY_ALAN@dao.hctx.net), counsel for the State of
Texas, and the Hon. Lisa McMinn (lisa.mcminn@spa.state.tx.us), State’s
Prosecuting Attorney.
/s/ John M. Bray
John M. Bray
21
APPENDIX A
Court of Appeals Decision, dated
March 12, 2015
Opinion issued March 12, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00897-CR
———————————
CESAR ROCHA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1914250
OPINION ON REHEARING
A jury found Rocha guilty of possession of marijuana in a useable quantity
of more than two ounces and less than four ounces and assessed his punishment at
270 days’ confinement. On appeal, Rocha contends that the trial court erred in
(1) denying his motion to dismiss, because the State’s re–filing of the case violated
his right to due process and articles 29.03 and 29.04 of the Texas Code of Criminal
Procedure; (2) denying his motion to suppress pursuant to the Fourth Amendment;
and (3) denying his request for a jury instruction pursuant to article 38.23 of the
Texas Code of Criminal Procedure. Rocha further contends that the trial court
violated his right to due process by failing to maintain impartiality during the
proceedings. After a panel of our court issued its opinion in this case, Rocha
moved for rehearing en banc. The en banc court denies the motion for rehearing;
however, the panel withdraws its opinion and judgment and issues this opinion and
judgment in their stead. Finding no error, we affirm.
Background
In February 2010, Patrol Officer J. P. Cruz observed a blue Ford Expedition
with tinted windows parked in an apartment complex parking lot after dark, its
lights on and engine running. The complex’s leasing office had received numerous
complaints regarding narcotics deals, prostitution, and trespassing taking place in
this parking lot. Officer Cruz was aware of these complaints, and he personally
had observed narcotics activity in this parking lot. He had observed individuals
parked in the complex parking lot with their car engines running and headlights on
before making narcotics transactions. The Expedition remained parked for five to
ten minutes. No one entered or exited the car. Officer Cruz observed at least three
people sitting in the Expedition.
2
Officer Cruz approached the Expedition on foot with a flashlight. He
approached the vehicle because no one was exiting it, and its lights and engine had
been on for five to ten minutes. As a safety precaution, he also drew his handgun,
but pointed it down and close to his body. Officer Cruz testified that he noticed the
driver’s window was partially open; as he approached it, he smelled a strong odor
of marijuana emanating from the car. Officer Cruz waved to the driver, who was
Rocha. In response, Rocha further rolled down his window.
Officer Cruz asked the passengers to exit the car, and he handcuffed them.
Officer Cruz asked Rocha if he had marijuana in the car. Rocha confessed that he
did and that it was in the car’s center console. Officer Cruz discovered marijuana
in the car’s center console, wrapped in 25 clear, small bags. All of the small bags
were further enclosed in a large, clear bag.
Course of Proceedings
On February 5, 2010, the State filed an information against Rocha. On April
19, 2010, Rocha pleaded guilty to possession of marijuana pursuant to a plea
bargain. The trial court convicted him and assessed his punishment at thirty days’
confinement. Rocha later filed a successful writ of habeas corpus pursuant to
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). The record is silent as
to when Rocha filed the writ and when the writ was granted. The State proceeded
3
to a re–trial. The trial court reset the case on multiple occasions in 2013: on April
15, May 16, June 14, and June 24.
At the last trial setting, the State moved to dismiss the case and noted that it
would re–file it. The trial court granted the State’s motion. The State then filed a
new information against Rocha, and the trial court set the case for trial. Rocha
moved to suppress the evidence of marijuana and his statements to Officer Cruz,
and at trial, the trial court held a hearing on the motion. Rocha also moved to
dismiss the case, contending that the State’s earlier non–suit precluded it from re–
filing the same criminal charges. The trial court denied both motions.
At trial, Officer Cruz testified that based on his experience, a narcotics
dealer who plans to make a sale typically will park his car in a parking lot, will
leave its engine running, will remain in the car, and will occasionally leave its
lights on, because the dealer plans to conduct the sale from the car and leave the
parking lot as soon as the transaction is complete. Officer Cruz also testified that,
as he approached the Expedition, he drew his gun for his own safety, because a
narcotics dealer typically carries a weapon.
4
Discussion
I. Re-filed Information
Standard of review
We review a trial court’s decision to deny a defendant’s motion to dismiss a
charging instrument under a bifurcated standard. See State v. Krizan–Wilson, 354
S.W.3d 808, 815 (Tex. Crim. App. 2011) (citing Guzman v. State, 955 S.W.2d 85,
87–89 (Tex. Crim. App. 1997)). We defer to a trial court’s “findings of fact that
are supported by the record, as well as mixed questions of law and fact that rely
upon the credibility of a witness.” Id. We review de novo “pure questions of law
and mixed questions that do not depend on credibility determinations.” Id.
Analysis
Rocha contends that the State’s re–filing of the case violated (1) his right to
due process; and (2) articles 29.03 and 29.04 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.04 (West 2006).
These contentions lack merit. The Due Process Clause of the Fifth Amendment
“has a limited role to play in protecting against oppressive delay” and concerns
only pre–indictment delays. Krizan–Wilson, 354 S.W.3d at 814 (quoting United
States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048 (1977)); State v.
Harbor, 425 S.W.3d 508, 515 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Here, Rocha’s complaint does not concern pre–information or investigative delay;
5
rather, it concerns the State’s delay during the prosecution of the case.
Accordingly, the State’s motion to dismiss and immediate re–filing of the case did
not violate the Fifth Amendment’s Due Process Clause. See Harbor, 425 S.W.3d
at 515.
Relying on United States ex. rel. Hetenyi v. Wilkins, Rocha next contends
that the State’s re–filing of the case was fundamentally unfair, violating the Due
Process Clause of the Fourteenth Amendment. 348 F.2d 844, 867 (2d Cir. 1965).
Hetenyi, however, is distinguishable. There, the State charged the defendant with
first–degree murder, but the jury found him guilty of second–degree murder. Id. at
847. After his conviction was vacated on appeal, the State again prosecuted the
defendant for first–degree murder. Id. The federal appellate court held that the re–
prosecution for first–degree murder violated the due process clause of the
Fourteenth Amendment, because the jury refused to convict the defendant of first–
degree murder in the first trial. Id. at 856–57. In contrast to the facts in Hetenyi,
the State moved to dismiss this case before any trial took place, and Rocha had not
been acquitted of possession of marijuana.
Rocha further contends that the State’s immediate re–filing of the
information violates articles 29.03 and 29.04 of the Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.04. Article 29.03 provides that:
A criminal action may be continued on the written motion of the State
or of the defendant, upon sufficient cause shown; which cause shall be
6
fully set forth in the motion. A continuance may be only for as long
as is necessary.
Id. art. 29.03. Article 29.04 similarly provides the grounds for a State’s motion to
continue the case. See id. art. 29.04 (outlining requirements of State’s motion for
continuance for want of a witness). Neither provision, however, limits the State’s
right to re–file a case after dismissal; both are inapplicable to the facts presented in
this case. We hold that the trial court properly denied Rocha’s motion to dismiss
the State’s re–filed information.
II. Suppression Ruling
Standard of review and applicable law
We evaluate a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
The trial judge is the sole trier of fact and judge of the weight and credibility of the
evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.
2007). Accordingly, we defer to the trial court’s determination of historical facts if
the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial
court’s application of the law to those facts. Id. “[T]he prevailing party is entitled
to ‘the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465
(Tex. Crim. App. 2011) (quoting State v. Garcia–Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably
7
supported by the record and correct on any theory of law applicable to the case.”
Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (quoting Willover v.
State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).
“Law enforcement and citizens engage in three distinct types of interactions:
(1) consensual encounters; (2) investigatory detentions; and (3) arrests.” State v.
Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011) (citing Florida v.
Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991), Gerstein v. Pugh, 420
U.S. 103, 111–12, 95 S. Ct. 854, 862 (1975), and Terry v. Ohio, 392 U.S. 1, 30–31,
88 S. Ct. 1868, 1884–85 (1968)). Consensual police–citizen encounters do not
implicate Fourth Amendment protections. Id. at 411 (citing Bostick, 501 U.S. at
434, 111 S. Ct. at 2386). In contrast, if there is a detention, the detaining officer
must have reasonable suspicion that the person “is, has been, or soon will be,
engaged in criminal activity.” Id. (citing Florida v. Rodriguez, 469 U.S. 1, 5–6,
105 S. Ct. 308, 310–11 (1984)). When there is a warrantless arrest, the arresting
officer must have “probable cause to believe the same.” Id. (citing Atwater v. City
of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001)).
We consider the “totality of the circumstances surrounding the interaction to
determine whether a reasonable person in the defendant’s shoes would have felt
free to ignore [a police officer’s] request or terminate the interaction.” Id. (citing
Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 2405–06 (2007)).
8
Although we consider “[t]he surrounding circumstances, including time and place,
. . . the officer’s conduct is the most important factor” in deciding whether an
encounter between a citizen and a police officer was consensual or a Fourth
Amendment seizure. Id. (citing Garcia–Cantu, 253 S.W.3d at 244). “[W]hen an
officer through force or a showing of authority restrains a citizen’s liberty, the
encounter is no longer consensual.” Id. (citing Brendlin, 551 U.S. at 254, 127 S.
Ct. at 2405). To support a reasonable suspicion that a person is, has been, or soon
will be engaged in criminal activity, an officer must have “specific, articulable
facts . . . combined with rational inferences from those facts.” Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989), and Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010)). We examine the reasonableness of a
temporary investigative detention in light of the totality of the circumstances to
determine whether an officer had an objectively justifiable basis for the detention.
Id. (citing Terry, 392 U.S. at 21–22, 88 S. Ct. 1868, 1880, and United States v.
Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690, 695 (1981)); Balentine v. State, 71
S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing Woods v. State, 956 S.W.2d 33,
38 (Tex. Crim. App. 1997)). Reasonable suspicion may exist even if the conduct
of the person detained is “as consistent with innocent activity as with criminal
9
activity.” York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011) (quoting
Curtis v. State, 238 S.W.3d 376, 378–79 (Tex. Crim. App. 2007)).
A defendant has the “burden of producing evidence to rebut the presumption
of proper conduct by law enforcement” and can satisfy it “with evidence that the
seizure occurred without a warrant.” Woodard, 341 S.W.3d at 412. “If the
defendant satisfies the initial burden, the burden then shifts to the State to establish
that the seizure was nevertheless reasonable under the applicable standard—either
reasonable suspicion or probable cause.” Id.
A police officer “may conduct a warrantless search of a vehicle if it is
readily mobile and there is probable cause to believe that it contains contraband.”
Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (citing Pennsylvania
v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487 (1996), and California v.
Carney, 471 U.S. 386, 393, 105 S. Ct. 2066, 2070 (1985)). A strong odor of
marijuana emanating from a car establishes probable cause to search the car and its
occupants. Jordan v. State, 394 S.W.3d 58, 64–65 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d) (citing Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex.
Crim. App. 2006)); see also Miller v. State, 608 S.W.2d 684, 685–86 (Tex. Crim.
App. 1980) (holding that officers were authorized to conduct pat-down search after
smelling odor of marijuana emanating from car and from appellant’s person); State
10
v. Crawford, 120 S.W.3d 508, 510 (Tex. App.—Dallas 2003, no pet.) (finding that
officers had probable cause to search car after smelling odor of burned marijuana).
Analysis
Rocha contends that Officer Cruz violated his Fourth Amendment rights in
connection with Rocha’s detention and subsequent arrest.1 The State adduced
sufficient evidence, however, that Officer Cruz had specific, articulable facts
supporting a reasonable suspicion that Rocha was connected with criminal activity.
See Woodard, 341 S.W.3d at 411; Derichsweiler, 348 S.W.3d at 914. Officer Cruz
approached the Expedition because the driver and passengers exhibited behavior
consistent with that of other individuals he had observed conducting narcotics
transactions in the same parking lot. Officer Cruz testified to specific, articulable
facts: the passengers and driver waited in the car for several minutes at a location
where he previously had observed narcotics activity, without turning off their car
engine or lights or exiting the car. See Derichsweiler, 348 S.W.3d at 914. The
circumstances, viewed in totality, support Cruz’s investigative detention. See id;
Balentine, 71 S.W.3d at 768.
The State also adduced sufficient evidence supporting probable cause to
arrest Rocha. Officer Cruz smelled a strong odor of marijuana emanating from
1
Rocha also contends that Officer Cruz’s conduct violated his Fifth and Sixth
Amendment rights. Rocha, however, provides no argument or authority in support
of his contention. Accordingly, we do not address these issues. See TEX. R. APP.
P. 38.1(i).
11
Rocha’s car as soon as he approached Rocha’s window. Although two of the
passengers contested Officer Cruz’s testimony that the window was rolled down as
he approached, we defer to the trial court’s determination of witness credibility
where the record supports it, as it does here. See Weide, 214 S.W.3d at 24–25;
Ford, 158 S.W.3d at 493. When Officer Cruz smelled an odor of marijuana, he
had probable cause to search the car and its occupants. See Jordan, 394 S.W.3d at
64–65. We hold that the trial court did not err in denying Rocha’s motion to
suppress.
III. Jury Charge
Standard of review
Rocha contends that the trial court erred in denying his request for a jury
instruction pursuant to article 38.23 of the Code of Criminal Procedure, because he
adduced material evidence that the Officer Cruz’s search was unlawful. See TEX.
CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). If a fact issue exists
concerning whether evidence was unlawfully obtained, then a trial court must
instruct the jury that if it believes that the evidence was obtained in violation of
article 38.23, then it should disregard the evidence so obtained. Madden v. State,
242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Pierce v. State, 32 S.W.3d 247, 251
(Tex. Crim. App. 2000). The evidence (1) must raise an issue of fact; (2) must be
affirmatively contested; and (3) must be material to the lawfulness of the
12
challenged conduct. Madden, 242 S.W.3d at 510. The defendant must request a
jury instruction on a specific historical fact to obtain one. Id. at 511. “[I]f other
facts, not in dispute, are sufficient to support the lawfulness of the challenged
conduct, then the disputed fact . . . is not material to the ultimate admissibility of
the evidence.” Id. at 510. In other words, “[t]he disputed fact must be an essential
one in deciding the lawfulness of the challenged conduct.” Id. at 511.
Analysis
Rocha disputes the facts surrounding his arrest, including: (1) whether
Officer Cruz displayed his gun as a show of force; (2) whether a reasonable person
in his position would have felt free to leave; (3) whether the apartment complex
was a high–crime area; (4) whether Rocha or anyone else in the Expedition was
acting suspiciously; (5) whether Rocha’s window was rolled up when Officer Cruz
approached the Expedition; and (6) whether Officer Cruz had reasonable suspicion.
Fact issues (1) and (2) are not material, because Officer Cruz had reasonable
suspicion to detain Rocha before approaching the Expedition with his gun drawn.
See id. at 510–11. Issues (3) and (4) are undisputed. No one contested Officer
Cruz’s testimony that he had viewed many narcotics transactions at the apartment
complex. See id. at 510. No one contested that Rocha and the passengers were
waiting in the Expedition in the complex parking lot for several minutes with the
13
car engine running and lights on, the basis for the temporary investigative
detention.
Fact issue (5) is not material. Although both passengers testified that the
windows were rolled up as Officer Cruz approached, Officer Cruz also could have
smelled marijuana as the passengers exited the car, which occurred before Officer
Cruz asked Rocha if he had any marijuana. Once Officer Cruz smelled marijuana,
he had probable cause to search the car and its occupants. See Jordan, 394 S.W.3d
at 64–65. The ultimate material fact is whether there was an odor of marijuana at
some point, not whether the window was up or down at the initial detention.
Although both passengers contested Officer Cruz’s testimony that the window was
open, this contested fact was not material. See Madden, 242 S.W.3d at 510–11.
Thus, Rocha’s first five challenges were either not material or not contested.
Issue (6) is not a factual issue, but a legal issue. Whether a police officer has
reasonable suspicion is a question of law, not fact. See id. at 511 (“The jury . . . is
not an expert on legal terms of art. . . . It cannot be expected to decide whether the
totality of certain facts do or do not constitute ‘reasonable suspicion’ under the
law.”).
Because Rocha did not raise any material fact issue, he was not entitled to an
article 38.23 jury instruction. See id. at 510. Accordingly, the trial court did not
err in denying his request for an article 38.23 jury instruction.
14
IV. Impartiality of trial court
Rocha contends that the trial court violated his right to due process in failing
to maintain impartiality during the proceedings. “Due process requires a neutral
and detached hearing body or officer.” Brumit v. State, 206 S.W.3d 639, 645 (Tex.
Crim. App. 2006). A trial court’s actions will be presumed to have been correct,
absent a clear showing of bias. Id.
Rocha first challenges the following exchange, outside the presence of the
jury, during the State’s argument on Rocha’s motion to suppress:
The Court: Okay. Let’s say it’s not a consensual encounter. What’s the
reasonable suspicion to temporarily detain to confirm or dispel any
suspicions about criminal activity having taken place or about to take place?
State’s counsel: The reasonable suspicion for the officer to approach—are
you referring other than the high criminal activity in the area?
The Court: Other than the high crime area.
A trial judge has broad discretion in maintaining control and expediting a trial and
may interject to clarify a point of confusion. Jasper v. State, 61 S.W.3d 413, 421
(Tex. Crim. App. 2001); Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—
Houston [14th Dist.] 2002, pet. ref’d). Rocha contends that the trial court went
beyond those bounds and aided the State by intimating that it would find that
15
reasonable suspicion existed when the State had not previously argued this theory. 2
This contention is without merit. The State had earlier argued that Officer Cruz
had probable cause to search the car and detain Rocha:
State’s counsel: . . . And then once he had that smell, once he had that
admission, he could search the vehicle. That’s that. It’s very simple. There
is no complicated explanation as to what happened there and whether the
officer could enter the vehicle. It’s very simple. He had probable cause to
search the vehicle.
The Court: So, your position is that a detention did not exist until after he
smelled the marijuana?
State’s counsel: Yes.
The State argued at the outset that no search occurred until after Officer
Cruz smelled the marijuana emanating from the car. The trial court acted within its
discretion by responding with a question to clarify. See Jasper, 61 S.W.3d at 421.
The State clarified that its position was that no detention occurred until after
Officer Cruz smelled the marijuana. In the subsequent complained–of exchange,
the trial court did not introduce a new alternative theory and thus did not assist the
State.
Rocha also contends that the trial court violated his right to due process in
failing to hold a pre–trial hearing on his motion to suppress. But a trial court is not
2
Rocha failed to object to this exchange. But, because the Court of Criminal
Appeals has not spoken definitively on the issue of whether a trial judge’s
comments can be challenged on appeal absent an objection, we address the merits
of Rocha’s complaint. See Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim.
App. 2006).
16
required to rule on a motion to suppress before trial and may carry the motion
along with the trial on the merits. York v. State, 342 S.W.3d 528, 550–51 (Tex.
Crim. App. 2011) (citing Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App.
1988)). Accordingly, we hold that Rocha failed to make a clear showing of bias
and thus does not overcome the presumption that the trial court maintained its
impartiality during the proceedings.
17
Conclusion
The trial court did not err in denying Rocha’s motion to dismiss, motion to
suppress, and request for an article 38.23 jury instruction, nor did it fail to maintain
impartiality during the proceedings. We therefore affirm the judgment of the trial
court. The motion for rehearing en banc is denied.
Jane Bland
Justice
Panel consists of Justices Higley and Bland. ∗
En banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Huddle, and Lloyd.
Publish. See TEX. R. APP. P. 47.2(b).
∗
Justice Jim Sharp was a member of the original panel, which unanimously voted to
affirm, but his term of office expired in the interim. The two remaining justices
issue the opinion on rehearing. See TEX. R. APP. P. 41.1 & 49.3.
18