ACCEPTED
06-14-00223-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
5/5/2015 5:24:11 PM
DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS
FILED IN
SIXTH DISTRICT OF TEXAS 6th COURT OF APPEALS
TEXARKANA, TEXAS
5/6/2015 8:04:00 AM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
DALE DEWYANE FISHER
Appellant
Vs 06-14-00223-CR
THE STATE OF TEXAS
Appellee
ON APPEAL FROM
THE 115TH JUDICIAL DISTRICT COURT
OF GREGG COUNTY, TEXAS
TRIAL COURT NO. 16,741
BRIEF ON BEHALF OF APPELLANT
TIM CONE
State Bar #04660350
P.O. Box 413
Gilmer, Texas 75644
(903) 725-6270
e-mail: timcone6@aol.com
ATTORNEY FOR THE APPELLANT
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IDENTITY OF PARTIES AND COUNSEL
DALE DEWYANE FISHER
TDCJ #1972882
COFFIELD UNIT TDCJ
2661 F.M. 2054
TENNESSEE COLONY, TEXAS 75884
APPELLANT
CRAIG BASS
P.O. BOX 428
LONGVIEW, TEXAS 75606-0428
APPELLANT’S COUNSEL AT TRIAL
BILLY BYRD, UPSHUR COUNTY CRIM. DIST. ATTORNEY
405 N. TITUS
GILMER, TEXAS 75644
APPELLEE’S COUNSEL AT TRIAL
TIM CONE
P.O. BOX 413
GILMER, TX 75644
APPELLANT’S COUNSEL ON APPEAL
NATALIE A. MILLER
UPSHUR COUNTY ASSIST. CRIM. DIST. ATTORNEY
405 N. TITUS
GILMER, TEXAS 75644
APPELLEE’S COUNSEL ON APPEAL
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TABLE OF CONTENTS
Page No.
List of Parties and Counsel……………………………………………. 2
Table of Contents……………………………………………………… 3
Index of Authorities…………………………………………………… 4
Statement of the Case…………………………………………………. 6
Point of Error Number One…………………………………………… 7,10
The trial court erred in denying Appellant’s Motion to Suppress.
Statement of Facts……………………………………………………. 7
Summary of Argument………………………………………………. 10
Conclusion and Prayer……………………………………………….. 13
Certificate of Compliance……………………………………………. 14
Certificate of Service………………………………………………… 14
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INDEX OF AUTHORITIES
PAGE
CONSTITUTIONS:
4TH Amendment, U.S. Constitution………………………… 10,11
U.S SUPREME COURT CASES:
Ohio v. Robinette, 519 U.S. 33 (1996)……………………… 11
Rodriguez v. United States, Case No. 13-9972 (2015)……… 13
STATE CASES:
Davis v. State, 947 S.W.2d 240 (Tex.Crim.App 1997)………………. 12
Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005)……………….. 13
Freeman v. State, 62 S.W.3d 883 (Tex.App. Texarkana 2001)………. 12
Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App. 2004)……………….. 12
Richardson v. State, 402 S.W.3d 272 (Tex.App.Fort Worth 2013)…... 12
State v. $90,235.00, 2014WL 5798173………………………………. 12
Thomas v. State, 420 S.W.3d 195 (Tex.App.Amarillo 2013)……….. 12
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NO. 06-14-00223-CR
IN THE
COURT OF APPEALS
FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS
DALE DEWYANE FISHER,
APPELLANT
VS.
THE STATE OF TEXAS
APPELLEE
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,
hereinafter referred to as Appellant, and submits this brief in support of reversing the
judgment and sentence pursuant to the provisions of the Texas Rules of Appellate
Procedure in Cause No. 06-14-00223-CR in the 115th Judicial District Court of
Upshur County, Texas, (Trial Court Cause No. 16,741).
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STATEMENT OF THE CASE
The Appellant was indicted by the Upshur County Grand Jury on May 9, 2014,
in a two paragraph indictment setting out an allegation of Possession of a Controlled
Substance (methamphetamine) with Intent to Deliver (4-200 grams) in paragraph A.
Paragraph B set out an allegation for the same offense without the allegation of
“intent to deliver”. CR5. The Appellant filed a First Amended Motion to Suppress on
October 13, 2014. CR25. A hearing was held on that motion on October 14, 2014.
2RR. The trial court denied the motion on October 21, 2014. CR39. A jury was
selected in the case on November 10, 2014, and trial began (and ended) on November
12, 2014. 3RR, 4RR. The jury convicted the Appellant of Possession with Intent to
Deliver and, after a plea of “true” to one enhancement allegation, assessed
punishment at 75 years confinement and a fine of $10,000. CR87, 4RR236, 4RR317.
The Appellant now brings this appeal to reverse the conviction and sentence assessed.
For clarity, THE STATE OF TEXAS will be referred to as “the State”, and
Dale Dewyane Fisher will be referred to as “Defendant” or “Appellant.”
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ISSUES PRESENTED
POINT OF ERROR NUMBER ONE
The trial court erred in denying Appellant’s Motion to Suppress.
STATEMENT OF THE FACTS
Since sufficiency of the evidence is not a point of error, a fairly short
rendition of the facts will suffice. The record on the hearing on the Motion to
Suppress is, perhaps, the most important part of the record but some of the trial
record is significant, as well. The Appellant’s Motion to Suppress essentially attacked
to prolonged detention of the Appellant after the stated reason for the stop (by the
arresting officer) was concluded. CR25. The hearing on the motion included the same
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type of motion filed by the Appellant’s passenger in the vehicle and co-defendant, so
the record of the hearing includes attorney Barry Wallace, attorney for the co-
defendant. 2RR. There seemed to be some confusion as to the burden of proof in the
hearing but, after the discussion, the State went forward-presumably, with the trial
court ruling the State had the burden of proof. 2RR4-8. There was no warrant for the
stop. 2RR7. The State’s sole witness at the hearing was the arresting officer, Sheriff
Deputy David Thompson. 2RR8. The deputy’s testimony established that he was
essentially a narcotics investigator and was a K-9 unit, with a drug sniffing dog in his
vehicle.2RR9,10,30;4RR161. He stopped the vehicle driven by the Appellant on the
night of December 30, 2013, for having an improper license plate bulb that, in
essence, shown too brightly.2RR11,18. Although the Appellant could not locate his
driver’s license, it was determined he had a valid license.2 RR19,40. The passenger
had a valid Texas ID card.2RR21. The deputy determined that neither of the subjects
had active warrants but that both had criminal histories that included drug arrests.
2RR23,25.Neither subject acted in an unusual manner and both were calm, according
to the Deputy’s testimony. 2RR24,25. The deputy testified he had not seen anything
suspicious and smelled no drugs at this time. 2RR25,29. However, the deputy decided
the stop was not over. 2RR26,41. He had the Appellant get out of the vehicle and, at
this time, he testified he smelled marijuana on the Appellant-even though he had not
smelled the odor earlier when in close proximity to the Appellant. 2RR26,28,29. He
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also testified the Appellant was now sweating when he had not been sweating earlier.
2RR27.The narcotics officer then asked for consent to search the vehicle and the
Appellant denied consent. 2RR30. The narcotics deputy then retrieved his drug
sniffing dog and went to the vehicle. 2RR30-33. He testified the dog alerted on the
vehicle, the dog was then allowed to enter the vehicle by the deputy and alerted inside
the vehicle. 2RR32,33. In the center console area, the deputy found
methamphetamine, a pistol, pills, and what the deputy testified was counterfeit
currency. 2RR33,34. The Appellant and the passenger were arrested. The deputy
testified he could have issued a warning or citation for the traffic violation and ended
the stop without the prolonged detention but that his continued detention was based
on the criminal histories of the subjects and his belief that the highway travelled by
the subjects was a major corridor for transporting narcotics. 2RR41. He also testified
he rarely issued citations and his focus was narcotics investigation. 4RR161.
At trial, the deputy’s testimony was essentially the same with the omission of
the criminal testimony, which would have been inadmissible before the jury.
Appellant’s trial counsel re-urged his Motion to Suppress and was granted a running
objection regarding the issues addressed and denied by the trial court relating to the
motion. 4RR110,154. The State called other witnesses-such as the chemist, property
officer, and others but their testimony is not relevant to the issue presented. As stated
earlier, the Appellant was found guilty of Possession with intent to deliver and, after
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pleading “true” to one enhancement paragraph, sentenced to 75 years confinement in
prison and assessed a fine of $10, 000. 4RR236,243,245,317.
SUMMARY OF THE ARGUMENT
The reason for the stop by the deputy was for a minor traffic violation. Once
the reason for the stop was concluded, it was determined that the driver had a valid
driver’s license, that no warrants existed for any subject in the vehicle, the further
detention and investigation/interrogation by the narcotics officer was without
authorization. The prolonged detention and investigation is the very type that violates
the Fourth Amendment to the U.S. Constitution and applicable Texas law. The trial
court should have granted the Motion to Suppress. It was error not to do so.
POINT OF ERROR NUMBER ONE
The trial court erred in denying Appellant’s Motion to Suppress.
ARGUMENT
The deputy clearly testified his job was not to write “tickets” but to investigate
narcotics. He was trained in narcotics investigation-- it was his primary duty as a
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deputy-- and he carried his drug sniffing dog in the car with him. It was a sham to
suggest the deputy was concerned about a license plate light that was too bright. He
simply used that as an excuse to stop the Appellant. Even so, had reasonable,
articulable suspicion existed before his given reason for the stop had been concluded,
prolonged detention and investigation may have been warranted. Here, it clearly was
not. Once the deputy determined that the driver had a valid driver’s license, that there
were no warrants for any person in the vehicle, the justification for the stop was
concluded and, unless he wanted to issue a citation or warning, the Appellant should
have been released. The deputy never testified he intended to issue a warning or
citation. The deputy had no justification for detaining the Appellant or removing him
from the vehicle. The reasons the deputy gave for his aroused suspicion-the sweating
and odor of marihuana-would never have occurred. The deputy testified the reason
for his continued detention of the Appellant was the criminal record and his belief
that the highway was a corridor for narcotics, since Houston (the point of origination
for the Appellant’s trip) was a major hub for narcotics. Perhaps even more obnoxious
to the freedom guaranteed under the concept of the Fourth Amendment, the deputy
did not use his dog until after the Appellant denied consent to search the vehicle, a
right clearly available to any citizen. The deputy used this invocation of a right to
decide to prolong the detention and instigate a search and investigation. This is the
very sort of evil fishing expedition Justice Ginsburg warned of in Ohio v. Robinette,
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519 U.S. 33 (1996). Under that authority and Kothe v. State, 152 S.W. 3d 54
(Tex.Crim.App. 2004), this prolonged detention and investigation was not authorized.
These authorities stand for the proposition that when the reason for the stop is
concluded it is unauthorized to prolong the detention in the hope of finding another
crime. Stops by police should last no longer than the time required to conclude the
reason for the stop and should be as short as possible. State v $90,235.00, 2014WL
5798173; Thomas v. State, 420 S.W.3d 195 (Tex.App. Amarillo 2013); and
Richardson v. State, 402 S.W.3d 272 (Tex.App. Fort Worth 2013). This concept was
also recognized in Davis v. State, 947 S.W.2d 240 (Tex.Crim.App. 1997). An
interesting contrast to show the difference between this prolonged detention and an
appropriate detention exists in Freeman v. State, 62 S.W.3d 883 (Tex.App. Texarkana
2001), where the officer smelled marihuana before the reason for the stop was
concluded. There, the prolonged detention was authorized. Here, the deputy testified
he did not smell marihuana until after the reason for the stop was concluded and the
prolonged detention was not authorized. This Motion to Suppress should have been
granted. The error was properly preserved by Appellant’s trial counsel at trial. It is
clear that the State would have no evidence of the crime alleged except for the
improper prolonged detention that led to the unauthorized search and subsequent
seizure. The applicability of a recent U.S. Supreme Court case, while not precisely on
point, does suggest that prolonged detentions (especially, those involving drug
13
sniffing dogs) violate the 4th Amendment. Rodriguez v. United States, case no. 13-
9972 (2015).
While it really does not matter much, Appellant’s attorney was a little confused
as to the discussion at the beginning of the hearing on the Motion to Suppress that
related to the burden of proof at the hearing. It has long been the law, according to the
understanding of the Appellant’s attorney, that warrantless searches that are
challenged always place the burden of proof on the State. Ford v. State, 158 S.W.3d
488 (Tex.Crim.App. 2005). The trial court allowed the State to proceed in the
hearing, so, as previously stated, it really does not make much difference. It just
seemed a little surprising that the issue was even raised at the hearing.
CONCLUSION AND PRAYER
For the reasons herein alleged, the judgment and sentence of the trial court
should be reversed and remanded for a new trial, finding the trial court erred in
failing to grant the Appellant’s Motion to Suppress.
Respectfully submitted,
/s/Tim Cone
____________________
TIM CONE
Attorney At Law
P.O. Box 413
Gilmer, Texas 75644
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e-mail: timcone6@aol.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix, it consists of 1434 words.
/s/Tim Cone
______________________
TIM CONE
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s Brief
has been provided to the Honorable Natalie A. Miller, Upshur County Assistant
Criminal District Attorney on May 5, 2015.
/s/Tim Cone
_____________________________
TIM CONE
Attorney At Law
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