Rocha, Cesar

May 15, 2015
NO. PD-0407-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
CESAR ADOLFO ROCHA-MORENO, Petitioner/Appellant,
v.
THE STATE OF TEXAS, Respondent/Appellee.
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
Dallas, Texas 75201
Tel: (214) 550-4664
Fax: (214) 550-4654
Email: john@oblawfirm.com
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. Pro. 38.1(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, so the members of the Court may at once
determine whether they are disqualified to serve or should recuse themselves from
participating in the decision of the case.
APPELLANT Trial Counsel & Appellate Counsel
Cesar Adolfo Rocha Moreno 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 District Attorney
Harris County Criminal Justice Center
1201 Franklin Street, Suite 600
Houston, Texas 77002
Trial Counsel
Maritza A. Glenn
SBN 24075493
Cara E. Burton
SBN 24068399
Appellate Counsel
Alan K. Curry
SBN 05263700
David C. Newell
SBN 00000018
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Grounds for Review Numbers One & Two . . . . . . . . . . . . . . . . . . . . . . . . 3
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 . . . . . 3
B. Argument & Authorities – First and Second Grounds for Review . . . . . . 4
1. The Court of Appeals Erred in Applying the Standard for
“Reasonable Suspicion” Instead of “Consensual Encounters” . . . 4
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Because the Court of Appeals Incorrectly Concluded Reasonable
Suspicion Existed, It Erroneously Concluded the Detaining Officer
Had Probable Cause to Arrest Mr. Rocha . . . . . . . . . . . . . . . . . . . . 12
4. The Correct Standard of Review Was That Governing Consensual
Encounters, Because Detention Was Not Justified . . . . . . . . . . . . . 16
C. Conclusion – First and Second Grounds for Review . . . . . . . . . . . . . . . 18
II. Ground for Review Number Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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 . . . . . . . . . . . . . . . 19
B. Argument & Authorities – Third Ground for Review . . . . . . . . . . . . . . . . . 19
C. Conclusion – Third Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Certificate of Compliance and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Appendix
iii
INDEX OF AUTHORITIES
Federal Cases
Brown v. Texas, 443 U.S. 47 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Fla. v. Bostick, 501 U.S. 429 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17
Fla. v. J.L., 529 U.S. 266 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) . . . . . . . . . . . . . 6, 7
Illinois v. Wardlow, 528 U.S. 119 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 10, 12
Michigan v. Chestnut, 486 U.S. 567 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Terry v. Ohio, 392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13
United States v. Mendenhall, 446 U.S. 544 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Soares, 521 F.3d 117 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Wright, 582 F.3d 199 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 6, 10
Texas Cases
Amorella v. State, 554 S.W.2d 700 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . 11
Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . 20
Cronin v. State, 2005 Tex. App. LEXIS 10450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Gurrola v. State, 877 S.W.2d 300 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . 8
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . 8
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . 4
Hernandez v. State, 376 S.W.3d 863 (Tex. App.—Fort Worth 2012) . . . . . . . . . . . . 17
Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . 20
iv
Jordan v. State, 394 S.W.3d 58 (Tex.App.—Houston [1st Dist.] 2012) . . . . . . 14, 15
Klare v. State, 76 S.W.3d 68 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d) . . . 9
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . 19
Parker v. State, 206 S.W.3d 593 (Tex.Crim.App.2006) . . . . . . . . . . . . . . . . . . . 14, 15
Scott v. State, 549 S.W.2d 170 (Tex. Crim. App. 1976) . . . . . . . . . . . . . . . . . . . . . . 9
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) . . . . . . . . . . . . . . . . 17
State v. White, 2014 Tex. App. LEXIS 6112 (Tex.App.—Eastland, June 5, 2014)
(mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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) . . . . . . . . . . . . . . . . . . . . . . 5
Texas Statutes / Codes
TEX. CODE OF CRIM. PROC., art. 38.23 . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 3, 18-22, 25
TEX. PEN. CODE § 481.121(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Texas Rules
Tex. R. App. Proc. 38.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Tex. R. App. Proc. 49.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Tex. R. App. Proc. 49.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
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:
COMES NOW Cesar Adolfo Rocha-Moreno, Appellant herein, by and
through, John M. Bray and Melissa M. Oosterhof, his undersigned attorneys, and
respectfully submits this Petition for Discretionary Review. In support of his request
for review, Appellant would show unto the Court as follows:
FACTS OF THE CASE
On the evening of February 4, 2010, Appellant Cesar Adolfo Rocha-Moreno
(hereinafter “Mr. Rocha”). The events in question took place in the parking lot of an
apartment complex located in southwest Houston on the evening of February 4,
2010. 5 R.R. 77. The Appellant, Cesar Adolfo 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. Mr. Rocha was not alone, as two friends, Troy Greer and Tristan
Greer, were also sitting with him in the vehicle. 5 R.R. 78; see also 5 R.R. 94.
Sometime around 8:30 p.m., after merely having been present for around five
minutes, two men approached the vehicle—and one of them knocked on the driver’s
side window with his gun drawn. 5 R.R. 78-79. According to witnesses Troy Greer
and Tristan Greer, all persons inside the vehicle initially thought that 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 detaining officer, J.P. Cruz, a
1
Houston Police officer. 5 R.R. 97. The other man, who was 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
cap,” due to the cold weather. 4 R.R. 29. Officer Cruz was on foot, as he had parked
his vehicle in front of the apartment leasing office. 4 R.R. 34.
Officer Cruz testified that he was walking the apartment complex on foot in
an effort to deter criminal activity. 4 R.R. 34. According to Officer Cruz, the area
around Woodfair Drive, where the apartment complex was located, is purportedly an
area known for prostitution and narcotics-related activity. 4 R.R. 34-35. The
detaining officer then testified that, in his training and experience, drug dealers
would 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. 36.
After seeing that Mr. Rocha’s vehicle was parked in the apartment parking lot
for about five to ten minutes, the detaining officer then decided to approach Mr.
Rocha’s vehicle—with his gun drawn. 4 R.R. 39, 40. According to the detaining
officer’s direct testimony, he engaged in what he believed was a “consensual
encounter”—it was not until trial that the detaining officer claimed that Mr. Rocha
was suspicious due to the fact that he was in a parked, running vehicle for about five
to ten minutes in what the detaining officer deemed a “high crime area.” 5 R.R.
2
42-43.
On the basis that the detaining officer had reasonable suspicion due to Mr.
Rocha’s sitting in a parked, running vehicle in a high-crime area, the trial court
denied Mr. Rocha’s motion to suppress. Subsequently, prior to closing, trial counsel
for Mr. Rocha requested various Article 38.23 jury instructions, including an
instruction concerning whether the jury determined that the area in which Mr. Rocha
was detained amounts to a high-crime area, but the trial court denied this request
apparently on the basis that this factual issue was not sufficiently contested.
ARGUMENT
I. GROUNDS ONE AND TWO: The Court of Appeals Erred in
Concluding that the Detaining Officer Had Specific, Articulable Facts
to Give Rise to Reasonable Suspicion
A. Summary of the Argument
Appellant would respectfully contend that the Court of Appeals did not apply
the appropriate standard of review—that regarding consensual encounters—and
instead applied the incorrect standard of review—reasonable suspicion to justify an
investigatory detention. The detaining officer did not have reasonable suspicion to
detain Appellant, because Appellant was not found in a high-crime area. However,
even assuming arguendo that the area is one that may be characterized as high in
crime, the detaining officer’s investigatory detention of Appellant is still not
3
justified, because it rests on little more than his mere presence in a running vehicle
while in a purportedly high-crime area. Because the Court of Appeals erred in
applying the incorrect standard, it likewise erred in concluding that probable cause
existed when the 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 would respectfully contend that 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 the trial court’s findings of historical facts,
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997), reviewing courts
should only sustain the trial court’s ruling if it is 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
4
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 Mr. Rocha without reasonable suspicion or probable cause, then
Mr. Rocha was free to ignore the detaining officer. Compare id. at 125 (regarding
implications of lack of reasonable suspicion), with 4 R.R. 37 (detaining officer
testified he wanted to engage Rocha in a consensual encounter to find out why he
and his passengers were in the vehicle), and 4 R.R. 40 (detaining officer testified “I
began a consensual encounter with them [Rocha and his passengers], simply asked
what he was doing there.”).
Clearly, the detaining officer’s suspicion was no more than the “inchoate and
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 that 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.
5
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 Mr. 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, Appellant would submit that it is
the task of the appellate courts to eschew such illations where not properly
supported, but here, the Court of Appeals did just the opposite. See id.
In the present case, the Court of Appeals erroneously upheld the trial court’s
determination that the area in question was a high-crime area, despite the fact that
the area purported to be a “high-crime area” includes an impermissibly broad swath
of southwest Houston. See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 578
(S.D.N.Y. 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
6
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 so as to have predictive
value).
Similarly, Appellant would contend that 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 J.P. Cruz testified as follows: “[T]here are
a few high 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.”).
7
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 that Officer J.P. Cruz had
reasonable suspicion to detain Mr. Rocha, since detaining officer’s “specific,
articulable facts” as required by Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.
Crim. App. 2011), consisted only of Defendant’s waiting in a running vehicle for
several minutes in what detaining 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
essentially no broader or more indicative of criminal activity than the Defendant’s
mere presence in a high-crime area—something this Court and the United States
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 not enough to justify detention); Shaffer v. State,
562 S.W.2d 853, 854 (Tex. Crim. App. 1978) (taxi driving slow in commercial lot of
8
closed businesses at night did not amount to reasonable suspicion); 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) (truck parked in lot of closed strip at 2:00 a.m. was not
sufficient, even considering it was a high-crime area). Of course the engine of Mr.
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 that the detaining
officer had reasonable suspicion based upon the officer’s testimony that Mr. Rocha
was in a purportedly “high-crime area” while in a mobile vehicle—in other words,
there was a possibility that Mr. Rocha could have fled the scene with “effervescent
evidence” that Mr. Rocha could have destroyed if not detained by the police.
However, the detaining officer conceded that effectively the only reason he
approached Mr. Rocha’s vehicle was because he was present in a running vehicle in
an area “known to be high in criminal narcotic activity.” 5 R.R. 41-43. Yet, the fact
that criminal activity is more likely in one geographical area than another does not,
by itself, satisfy the standards required for an interrogatory stop. United States v.
9
Brignoni-Ponce, 422 U.S. 873, 882, 886 (1975); see also Brown v. Texas, 443 U.S.
47 (1979) (same).
Indeed, United States 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 Mr. 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 that 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); State v.
White, 2014 Tex. App. LEXIS 6112, 19-20 (Tex.App.—Eastland, June 5, 2014)
(mem. op.) (no reasonable suspicion where defendant turned corner in high-crime
10
area, made eye contact with officer, then nervously turned away).
The Court of Appeals’ Decision Overlooks the Absence of Important Factors
Necessary to a Finding of Reasonable Suspicion to Detain Mr. Rocha
Furthermore, the Court of Appeals committed legal error in concluding that
the detaining 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 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 Mr. 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) (a vehicle
parked in a high-crime area with its 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 Mr. 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 Mr. Rocha was detained at approximately 8:30
11
p.m., and indeed, the detaining officer never even mentioned the time of detention as
a factor justifying Mr. Rocha’s detention. 5 R.R. 39-43 (observe line of questioning
in which detaining officer testified that essentially the only factors considered by
officer prior to detaining Mr. Rocha were vehicle was running, lights were on, and
presence in area where officer had previously observed criminal activity).
In other words, Mr. Rocha and his friends were merely present in a
“high-crime area,” even assuming that the area was one characterized by high levels
of 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
detaining officer articulate that he had any belief that Mr. Rocha or the passengers in
his vehicle were involved in, about to be involved in, or had been involved in any
type of criminal activity prior to making contact with these individuals. 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 Mr. Rocha
The Court of Appeals’ March 12, 2015 opinion reached a conclusion
inconsistent with relevant Federal and State precedent when it concluded that the
detaining officer necessarily had probable cause after smelling marijuana. Ct. App.
12
Op. at 11-12. Specifically, the Court of Appeals based its conclusion of probable
cause on the premise that the detaining officer had established reasonable suspicion
to detain Mr. Rocha and his passengers and, in the Court of Appeals’ view, it is thus
irrelevant whether the officer smelled marijuana emanating from Mr. Rocha’s car
before or after Mr. Rocha exited the vehicle. Ct. App. Op. at 11-12. However, this is
of crucial importance—for, if the officer did not have reasonable suspicion to detain
Mr. Rocha, then he likewise could not develop probable cause to arrest Mr. Rocha,
unless he smelled marijuana before detaining Mr. 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 Officer Cruz had already approached the vehicle with
flashlight in hand and weapon drawn and initiated the detention of Mr. 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 deemed the detaining
officer’s actions, including approaching Mr. Rocha’s vehicle in an intimidating
manner indicative of a show of authority, an unlawful detention not permitted by the
Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 446 (1991) (held
13
intimidating show of force renders encounter non-consensual).
Despite Appellant’s contentions, the Court of Appeals decision depends
entirely on the detaining officer’s contention that he had reasonable suspicion to
detain Mr. Rocha—but the officer cannot even keep his story straight. See 4 R.R. 36.
(he develops a “reasonable suspicion” where suspicious persons will either turn their
lights on or off but they will keep their engine running because they will not be there
very long.”). Yet, the Court of Appeals overlooked this factual inconsistency at the
heart of the detaining officer’s testimony. Ct. App. Op. 13-14 (“No one contested
that Rocha and the passengers were waiting in the complex parking lot for several
minutes with the car enginge running and the lights on . . .”). Indeed, even the Court
of Appeals considers this to be “the basis for the temporary investigative detention.”
Ct. App. Op. 14.
Appellant’s Case Is Distinguishable From Cases Cited by Court of Appeals
The Court of Appeals cites Jordan v. State for the proposition that the odor of
burnt marihuana wafting out of a vehicle may give rise to probable cause to search
the occupants of the vehicle and seize contraband contained therein. See Ct. App.
Op. at 10, 12, 14 (citing Jordan v. State, 394 S.W.3d 58, 64 (Tex.App.—Houston
[1st Dist.] 2012), which in turn cites Parker v. State, 206 S.W.3d 593, 597 n. 11
(Tex.Crim.App.2006)).
14
Appellant would respectfully contend that the Court of Appeals’ reliance on
Jordan v. State and related cases is misplaced, as it is distinguishable from the
instant case in that 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 (defendant rolled down
windows voluntarily), with 5 R.R. 15 (detaining 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
pertinent times prior to the 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 Mr. Rocha’s case conceded that
he in fact 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 the trial court determined that the
question of whether a detention had occurred in this case is irrelevant to Fourth
Amendment analysis, specifically where the detaining officer smells marijuana
15
upon approaching Rocha’s vehicle. Cf. Ct. App. Op. at 13-14 (Court of Appeals
determined that when officer smelled marijuana is irrelevant, as long as the officer’s
initial justification for detaining Mr. Rocha was justified), with 5 R.R 192-93
(discussing trial court’s findings).
Even the State did not attempt to argue that the detaining 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 and State’s closing argument). Yet, the only way to permit
Officer Cruz to smell the marijuana outside Rocha’s closed vehicle was to approach
the vehicle—and the officer testified he approached Rocha’s vehicle with his
flashlight out and weapon drawn. 5 R.R. 18-19. Stated otherwise, the only way for
Officer Cruz to have been in a physical position to smell marijuana was by initiating
a detention of Rocha, and as explained hereinabove, the officer did not have a
reasonable suspicion to do this. Because Mr. Rocha’s case is factually and legally
distinguishable from the legal precedent relied upon by the Court of Appeals,
Appellant would respectfully submit that the Court of Criminal Appeals should
grant discretionary review in this case.
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
16
did so on the mistaken premise that the officer had a reasonable suspicion to detain
Appellant. Instead of determining that reasonable suspicion existed, the Court of
Appeals should have viewed this incident as an unjustified detention. Where the
detaining 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)
(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,
17
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 United
States Supreme Court determined that 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’ determination that the detaining officer
smelled marijuana apparently overlooks the preliminary issue of how the detaining
officer came into a position to be able to smell the marijuana in the first place. Ct.
App. Op. at 13.
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,
discretionary review should be granted by this Court.
II. GROUND THREE: The Court of Appeals Incorrectly Affirmed the
Trial Court’s Denial of Appellant’s Request for an Article 38.23 Jury
Instruction and Misconstrued Appellant’s Arguments.
18
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 a jury instruction pursuant to Tex. Code Crim. Proc. art. 38.23. Because
the Court of Appeals misinterpreted applicable case law, it concluded that all factual
issues raised by Appellant as meriting a jury instruction were either immaterial or
undisputed. This conclusion apparently rests in part on the trial court’s
determination that reasonable suspicion resulting denial of Appellant’s motion to
suppress. 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.
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 in that the court had already erroneously determined that the officer had
reasonable suspicion to detain Mr. Rocha on the basis that he was merely present in
19
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 Mr. 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 Mr. Rocha’s position would have felt free to leave, and whether
the area where Mr. 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 . 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 the factual issues for which Appellant sought
jury instruction were either undisputed or immaterial after trial court’s denial of
motion to suppress).
20
Moreover, the Court of Appeals erred in concluding that Defendant failed to
contend that the area where Defendant was detained was a high-crime area. Ct. App.
Op. at 13. To the contrary, Defendant asked for an Article 38.23 jury instruction to
put this very issue before the jury, but the trial court refused to do so. 5 R.R. 194.
Apparently, the trial court inferred that the area was a high-crime area, due in part to
the defense witnesses’ testimony that they committed a crime by possessing
marihuana—a crime which the detaining officer could not have perceived prior to
unlawfully detaining the defendant and his friends. 5 R.R. 194. Then, when
contemplating Appellant’s requests for a jury instruction on these disputed issues,
the trial court disregarded the possibility that a jury might find the officer acted
unlawfully if, e.g., the window were rolled up all the way, or if the area was not a
“high-crime area” as determined by the jury. 6 R.R. 187-188, 191 (material facts
disputed by Appellant were, in the eyes of the trial court, irrelevant because they
“are all things that would have happened subsequent to the officer’s determination
of reasonable suspicion” and would “only [go] to a jury if there is a material factual
dispute about the historical basis of the reasonable suspicion”). Yet, the Court of
Appeals nevertheless 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
21
[the detaining 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 was “not material” because the detaining officer “could have smelled marijuana
as the passengers exited the car.” Ct. App. Op. at 14. However, that is not when the
detaining officer purportedly smelled marijuana, and it relies on a fallacious
conclusion, i.e., that the detaining officer had already developed reasonable
suspicion to detain Mr. Rocha and his passengers. Ct. App. Op. at 14.
On this point, Appellant would respectfully contend that the Court of Appeals
misinterpreted the scope and nature of Appellant’s argument with respect to
Appellant’s request for a jury instruction pursuant to Tex. Code Crim. Proc. art.
38.23. Both at trial and in the appellate brief, the essence of Appellant’s argument is
that the detaining officer could not have smelled the odor of marijuana prior to
engaging Mr. Rocha and, therefore, he lacked reasonable suspicion to detain Rocha,
despite the Court of Appeals’ conclusion that this fact was not material. See Ct. App.
Op. at 14; see also 5 R.R. 188, 197 (requesting jury instruction as to whether the
window was rolled up and contending Rocha did not simply roll down window and
allow detaining officer to smell marijuana). On the contrary, this factual issue
absolutely is material, because the jury may well have acquitted Mr. Rocha if it had
22
been permitted to consider whether the officer’s failure to detect marijuana prior to
engaging Mr. Rocha resulted in an unlawful detention.
Specifically, Appellant argued that the detaining officer’s inability to detect
marijuana through olfactory senses—since the windows were rolled up on Rocha’s
vehicle and the doors were closed—necessarily meant that the detaining officer
could not have smelled the odor of marijuana emanating from Rocha’s vehicle. 5
R.R. 155, 160, 164, 174, 179, 180, 184, 188, 190, 197, 200 (emphasizing that
windows were completely rolled up) (internal citations omitted). Eventually, Rocha
did roll down his windows, but this was only after the detaining officer had already
approached the vehicle with flashlight out and weapon drawn and initiated the
encounter with Rocha. 5 R.R. 184. In contrast with the myriad evidentiary assertions
adduced by Appellant that the windows were rolled up—and thus the detaining
officer could not have possibly smelled the marijuana—the officer’s testimony
reflects his own uncertainty on the position of Rocha’s windows upon the officer’s
approaching the vehicle, and when the windows were eventually rolled down. 5 R.R.
8 (the detaining officer testifies: “I believe at that time [Rocha’s window] was kind
of midway. I can’t remember exactly all the way up or all the way 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
23
Appellant’s suppression motion—constitutes reversible error because it influenced
the jury. See Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex.Crim.App.2011)
(discussing Tex. R. App. Proc. 44.2(b) and holding that appellate courts should
overturn convictions where trial court’s error affects defendant’s substantial rights
and influences the jury).
Also, Appellant would submit that no reasonable factfinder could have found
that the detaining officer could have smelled marijuana where Rocha’s vehicle was
sealed, and where the State presented no testimonial or physical evidence of burnt
marijuana. Id.; see also Gallegos v. State, 776 S.W.2d 312 (Tex.App.—Houston [1st
Dist.]) (citing Jackson v. Virginia, 443 U.S. 307 (1979)) (“The critical inquiry is
whether, after viewing the evidence in the light most favorable to the judgment, any
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.”). Nonetheless, this is ostensibly the only conclusion that may be
drawn from the Court of Appeals’ opinion on this point. Ct. App. Op. at 14.
To the contrary, the State’s primary witness, detaining officer J.P. Cruz,
testified that the marijuana was packaged in “25 clear, individually wrapped
baggies” that were, in turn, sealed inside a “gallon-size Ziploc bag.” 5 R.R. 11-12.
Thus, in order to smell the marijuana, the detaining officer’s olfactory senses would
need to be extraordinary—he would have had to smell through at least two sealed,
24
layers of plastic and a closed vehicle.
Even the State did not attempt to argue that the detaining 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 and State’s closing argument). Thus, the Court of Appeals
incorrectly upheld the trial court’s improper denial of Appellant’s request for an
article 38.23 jury instruction as to whether Rocha’s windows were rolled up. The
instruction necessarily entailed the jury’s consideration as to whether or not the
detaining officer smelled the odor of marijuana outside of Rocha’s vehicle.
Essentially, the Court of Appeals’ decision ignores the Fourth Amendment’s
guarantee of freedom from unlawful searches and seizures. Moreover, in finding that
the officer smelled marijuana, and given the true amount uncovered, the Court of
Appeals infers an inexplicable conclusion—that the officer could have smelled the
odor of marijuana without the officer having found any signs of marijuana
consumption. Ct. App. Op. at 13, 14.
C. Conclusion – Third Ground for Review
The factual inquiry whether Rocha’s windows were rolled up subsumes the
broader question of whether the detaining officer could smell marijuana emanating
from Rocha’s vehicle. Therefore, Appellant’s request for a jury instruction on
25
multiple issues, including whether Rocha’s windows were rolled up, prompted the
broader question—whether or not the detaining officer could smell marijuana
coming from Rocha’s vehicle when he approached it. For, if the vehicle’s windows
were in fact rolled up, no reasonable jury could have found that the detaining officer
acted lawfully in seizing the marijuana. Appellant would respectfully contend that
the Court of Appeals misapplied the law, and therefore, this Court should grant
discretionary review.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Cesar Adolfo Rocha-Moreno,
Appellant, prays that this Petition for Discretionary Review be granted; that this case
be submitted to the Court; that the Court of Appeals’ decision be reversed and for
such other relief to which he shows himself entitled.
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
26
CERTIFICATE OF COMPLIANCE AND DELIVERY
This is to certify that: (1) this document, created using Microsoft Word, Version
14.0.7143.5000, contains 6,001 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 13, 2015, a true and correct copy of the above
and foregoing Petition for Discretionary Review, as well as any and all attachments
thereto, was transmitted via the eService function on the State’s eFiling 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
27
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
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Date Filed 05/13/2015 11:26:20 PM
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Petition for Discretionary Review
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