ACCEPTED
06-14-00212-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/28/2015 4:31:55 PM
DEBBIE AUTREY
CLERK
No. 06-14-00212-CR
IN THE COURT OF APPEALS FOR THE FILED IN
6th COURT OF APPEALS
SIXTH JUDICIAL DISTRICT OF TEXAS TEXARKANA, TEXAS
4/29/2015 8:57:00 AM
AT TEXARKANA DEBBIE AUTREY
Clerk
___________________________________________________________
TERRY EUGENE GLENN, SR,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
____________________________________________________________
APPELLANT’S BRIEF
____________________________________________________________
On appeal from
THE 71ST JUDICIAL DISTRICT COURT, HARRISON COUNTY, TEXAS
Trial Court No. 12-0455X
Hon. Brad Morin, Presiding
APPELLANT REQUESTS ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
TERRY EUGENE GLENN, SR, Appellant
Trial Counsel for Appellee:
Honorable Shawn Connelly
Assistant District Attorney
State Bar No. 24051899
Harrison County Criminal District Attorney’s Office
P.O. Box 776
Marshall, Texas 75670
903-935-8408 Telephone
Trial Counsel for Appellant:
Ms. Katherine Betzler
State Bar No. 24066509
400 Repose Lane, Apt. A
Marshall, Texas 75670
210-842-9749 Telephone
Appellate Counsel for Appellant:
Ms. Laura M. Carpenter
State Bar No.08618050
106 West Houston Street
Marshall, Texas 75671
903-938-7440 Telephone
903-938-3008 Fax
Appellate Counsel for Appellee
Harrison County Criminal District Attorney’s Office
P.O. Box 776
Marshall, Texas 75670
903-935-8408 Telephone
ii.
TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………………ii
Table of Contents
……………………………………..………………………………………..……iii
Index of
Authorities…………..…………………………………………………………iv-v
Statement of the
Case……………………………………………………………………………..1
Issues
Presented…………………….…………………………………………….…. .2
Statement of
Facts……………………………………………………………………….……2
Argument and Authorities for Issue Number One ……………..………..…6
ISSUE NUMBER ONE: The trial court erred in denying Appellant’s
Motion to Suppress
Argument and Authorities for Issue Number Two…………………………12
ISSUE NUMBER TWO: The trial court erred in admitting the
physical evidence as the State did not present a proper chain of custody
Conclusion…………………………………………………………………….14
Prayer…………………………………………………………………………..15
Certificate of
Service………………………………………………………………………….16
Certificate of Compliance……………………………………………………..16
iii.
INDEX OF AUTHORITIES
Cases:
Amores v. State, 816 S.W. 2d 407, 413 (Tex. Crim. App. 1991) p. 10
Arizona v. Hicks, 480 U.S. 321, 326-29 (1987) p.11
Ballentine v. State, 71 S.W. 3d, 763, 768 (Tex. Crim.App. 2002) p.8
Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App . 2000) p.8
Christmas v. United States, 314 A.2 473 (D.C. 1974) p.11
Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) p.10
Dossett v. State, 216 S.W. 3d 7, 17 (Tex.App – San Antonio p.13
2006 pet ref’d)
Eisenhauer v. State,754 S.W.2d 159 164 (Tex. Crim. App. 1988) p.9
Ford v, State,158 S.W.3d 488, 492 p.8
Horton v. California, 496 U.S. 128, 136 (1990) p.10
Katz v. United States, 389 U.S. 347, 357 , 88 S. Ct. 507, 19
L.Ed. 2d 576 (1967) p.6
Keehn v. State,279 S.W. 3d 330, 334 (Tex. Crim. App. 2009) p.10
McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991) p.9
Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000) p.9
Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986) p. 6
Schenckloth v. Bustamonte, 412 U.S. 218, 219 (1973) p.9
State v. Ballard, 987 S.W. 2d 889, 892 (Tex. Crim. App. 1999) p.9
iv.
State v. Garcia-Cantu, 253 S.W.3d 236, 238 (Tex. Crim.App 2008) p.7,8
Terry v. Ohio, 392 U.S. 1, 22 (1968) p.8
Thomas v. State, 572 S.W. 2d 507 (1976) p.11
Villareal v. State, 935 S.W.2d 134, 140 (Tex. Crim.App. 1996) p.12
Statutes:
Texas Constitution p.7
Texas Code of Crim. Proc., 1.04, 1.06, 38.23 p.7
U.S. Constitution,4th, 5th and 14th Amendments p.7,8
v.
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW Appellant Terry Eugene Glenn, Sr, by and through
Appellant’s attorney of record, Laura M. Carpenter, and, pursuant to the
provisions of Texas Rules of Appellate Procedure 38, et. seq., files this
brief on appeal.
STATEMENT OF THE CASE
This is an appeal from a conviction for possession of less than one
gram of cocaine. TERRY EUGENE GLENN, SR was tried and convicted
by a jury in the 71st Judicial District Court in Harrison County, Texas. After
enhancement, the Appellant was then sentenced by the jury to 15 years in
the Institutional Division of the Texas Department of Criminal Justice.
For clarity, THE STATE OF TEXAS will be referred to as “the State”,
and TERRY EUGENE GLENN, SR will be referred to a “Defendant” or
“Appellant.”
More specifically, this is an appeal from a jury trial held beginning
October 7, 2014 in the 71st Judicial District Court, Harrison County, Texas.
Appellant was accused of the offense of Possession of a Controlled
Substance (cocaine less than 1 gram). Prior to trial, a Suppression hearing
was held on March 24, 2014 (RR Vol. 2, pp 1-46) and the trial court denied
the Appellant’s Motion to Suppress. (RR Vol 2, p. 45). A jury was
selected and empanelled. Evidence was presented by the State and the
jury found the Appellant guilty. (RR Vol. 4, p. 182). After Appellant pled
true to enhancements, the punishment trial was held and the jury assessed
punishment at fifteen years in the Institutional Division of the Texas
Department of Criminal Justice. (RR Vol. 5, p. 109.) Appellant timely filed a
Notice of Appeal. Appellant filed a Motion for New Trial. A hearing on the
Motion for New Trial was heard on December 16, 2014, and Judge Morin
denied the motion for a new trial. (RR Vol. 6, p. 80.)
ISSUES PRESENTED
POINT OF ERROR ONE
The trial court erred in denying Appellant’s Motion to Suppress?
POINT OF ERROR TWO
The trial court erred in admitting the physical evidence as there was
not proper proof of a chain of custody.
STATEMENT OF FACTS
Terry Eugene Glenn, Sr., appellant, was accused of possession of a
controlled substance, specifically cocaine of less than one gram, on May
13, 2011, while he was in the road at the intersection of Highway 59 and
I-20 in Marshall, Texas. Several Marshall police officers were dispatched
to the area for a disturbance call to find the appellant in the middle of the
intersection with two other individuals dragging him. In the appellant’s
hand were his i.d. and a prescription bottle of his ward, James Mike Tobin.
Without a warrant, without consent, without plain view of drugs, and without
any probable cause, a police officer opened the pill bottle and found
cocaine. Appellant filed a pretrial motion to suppress the admittance of the
cocaine in support of the State’s case. The trial judge denied the motion to
suppress, which the following was detailed at the hearing:
On May 13, 2011, at approximately 11:14 p.m., Office Jason Mobley
of the Marshall Police Department responded to a call regarding a
disturbance at the intersection of Highway 59 and Interstate 20. (RR Vol.
2, p. 9). Officer Mobley stated he saw two subjects attempting to drag a
black male subject out of the middle of the intersection. (RR Vol 2., p. 10).
The officer identified the black male being dragged as the defendant, Terry
Eugene Glenn, Sr. (RR Vol 2, p. 11-12). After helping the defendant on the
side of the road, Officer Mobley took the i.d. and the pill bottle from the
defendant’s hand without permission. (RR Vol 2, p. 28 and pp. 33-34 ).
Officer Mobley testified that he did not know what was inside the pill bottle.
(RR Vol 2, p. 28.) Officer Mobley never asked the defendant if he could
search inside the pill bottle. (RR Vol. 2, pp. 30-31). The defendant told
Officer Mobley that he was taking care of someone at Motel 6. (RR Vol 2,
p. 31.) which explained why the pill bottle did not have the defendant’s
name on it. Officer Mobley stated that there was no evidence in plain view
and that he did not suspect the defendant of any crime that involved drugs.
(RR Vol 2, p. 34.)
On examination by the prosecutor, the following questions and
answers by Officer Mobley (RR Vol 2, p. 19):
Q: So did you open the bottle to see what was, in there was in fact,
since you had been told you said that he was taking Diazapam: I am sorry
Valium or –
A: Valium
Q: Okay. And taking that in consideration too, did you open the
bottle to affirm what the substance whether it was consistent with
what you were told?
A: Yes.
Q: And when you opened the bottle what did you observe?
A: Two small clear plastic baggies and a white rock substance.
On cross-examination, testimony by Office Mobley contradicted his
previous testimony and established he did not open the bottle but that
Lieutenant John Johnson had opened the bottle. (RR Vol 2, pp. 34-34.)
Further, Officer Mobley testified that Lieutenant Johnson did not ask for
consent to open the bottle. (RR Vol 2, P. 35).
Office Mobley responded to questioning that when he came up to the
defendant in the road that there was no probable cause to arrest him for
possession of any kind of drug; that there was no probable cause to arrest
him for a public disturbance; that there was no probable cause to arrest him
when the officer took the i.d. and pill bottle from the defendant’s hand; and
that the officer didn’t know what was inside the pill bottle. (RR Vol 2, pp.
39-40.) Officer Mobley stated that he was conducting a welfare check and
that his main concern was getting the defendant out of the road. (RR Vo.
2, p. 41)
Officer Mobley affirmed that that he did not know what was inside the
bottle by just looking at it and that he couldn’t see through the bottle at all.
He had no idea that there was anything other than possibly Valium in the
bottle. (RR. Vo. 2, p. 31.)
ARGUMENTS AND AUTHORITIES FOR ISSUE ONE
THE TRIAL COURT REVERSIBLY ERRED IN DENYING
APPEALLNT’S MOTION TO SUPPRESS EVIDENCE, TO WIT: COCAINE
SEIZED FROM APPELLANT’S PILL BOTTLE, AS SUCH EVIDENCE WAS
DISCOVERED PURSUANT TO A SEARCH CONDUCTED WITHOUT
PROBABLE CAUSE AND WITHOUT A WARRANT IN VIOLATION OF
APPELLANT’S RIGHTS UNDER THE FOURTH, FIFTH AND
FOURTEENTH AMENDAMENT TO THE U.S. CONSTITUTION, ARITCLE
1 SECTIONS 9,10,13, AND 19 OF THE TEXAS CONSTITUTION, AND
ARTICELS 1.04, 1.06 AND 38.23 OF THE TEXAS CODE OF CRIMINAL
PROCEDURE.
A search conducted without a warrant is presumed to be
unreasonable. The burden falls on the State to show its reasonableness.
Russell v. State, 717 S.W. 2d 7, 9-10 (Tex.Crim.App. 1986). “Searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment –
subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19
L.Ed. 2d 576 (1967).
Article 1, Section 9 of the Texas Constitution also prohibits
unreasonable searches. Illegal searches are also violation of due process
and due course of law guaranteed by the 5th and 14th Amendments to the
U.S. Constitution and Article 1, Section 13 & 9 of the Texas Constitution as
well as Texas Code of Criminal Procedure Articles 1.04, 1.06 and 38.23.
The Texas Code of Criminal Procedure prohibits the use against
defendants of evidence that was illegally seized. It reads as follows
Art. 38.23. Evidence not to be used
(a) No evidence obtained by an officer or other person in violation of
any provisions of the Constitution or laws of the State of Texas, or
of the Constitution or laws of the United State of America, shall be
admitted in evidence against the accused on the trial of any
criminal case.
The Fourth Amendment protects citizens against unreasonable
searches and seizures by government agents. U.S. Const. amend.
IV; see State v. Garcia-Cantu, 253 S.W.3d 236, 238 (Tex. Crim. App.
2008). A seizure is reasonable under the Fourth Amendment if the
agent reasonable suspects the person of engaging in criminal activity.
Terry v. Ohio, 392 U.S. 1, 22 (1968); Carmouche v. State, 10 S. W.
3rd 323, 328 (Tex.Crim. App. 2000).
A police officer conducts a lawful temporary detention when he
has reasonable suspicion to believe that an individual is violating the
law. Ford v. State, 158 S.W.3d 488, 492; Ballentine v. State, 71 S.W.
3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists
when, based on the totality of the circumstances, the office has
specific, articulable facts that, when combined with rational inferences
from those facts, would lead the officer to reasonably conclude that a
particular person actually is, has been or soon will be engaged in
criminal activity. Ford, 158 S.W.3d at 492; Garcia v. State, 43
S.W.3d 527, 530 (Tex. Crim. App. 2001). This is a wholly objective
test that disregards any subjective intent of the officer making the
stop and looks solely to whether an objective basis for the stop
existed at the time the officer made the stop. Ford 158 S.W.3d at 492;
Garcia, 43 S.W.3d at 530. A reasonable suspicion determination is
made by looking at the totality of the circumstances. Ford, 158 S.E.
3d at 492-93; Garcia, 43 S.W. 3d at 530.
Under the Fourth and fourteenth Amendments to the United States
Constitution, a search conducted without a warrant issued upon
probable cause is per se unreasonable, limited to a few well-
delineated exceptions. Schenckloth v. Bustamonte, 412 U.S. 218,
219 (1973); Reasor v. State, 12 S.W. 3d 813, 817 (Tex. Crim. App.
2000). “ A search prior to the establishment of probable cause can
never be considered valid” because a police “office could stop a
vehicle for any reason or no reason, search its passenger
compartment and then arrest the occupants based on whatever
evidence is found in the search” State v. Ballard, 987 S.W.2d 889,
892 (Tex. Crim. App. 1999) Thus, the issue is whether the police
office had the “existence of probable cause to arrest an appellant
before the search.”
“Probable cause to search exists when reasonably trustworthy
facts and circumstances within the knowledge of the officer on the
scene would lead a man of reasonable prudence to believe that the
instrumentality of a crime or evidence of a crime will be found.”
McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). The
“totality of the circumstances approach applies to
warrantless…seizures of persons and property.” Eisenhauer v. State,
754 S.W.2d 159, 164 (Tex. Crim. App. 1988). The “burden is on the
State to prove the existence of probable cause to justify a warrantless
arrest or search.” Amores v. State, 816 S.W. 2d 407, 413 (Tex. Crim.
App. 1991).
The plain-view doctrine is an exception to the warrant
requirement, which permits an officer to seize what he views in plain
sight or open view if he is lawfully on the premises. Coolidge v. New
Hampshire, 403 U.S. 443, 465 (1971). A seizure of an object is
lawful under the plain view exception if three requirements are
satisfied: (1) law enforcement officials must lawfully be where the
object can be plainly viewed, (2) the incriminating character of the
object in plain view must be immediately apparent to the officials, and
(3) the official must have the right to access the object. Keehn v.
State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009).
A plain-view seizure is only permitted if “its incriminating
character is ’immediately apparent.” Horton v. California, 496 U.S.
128, 136 (1990). Under such prong, the United States Supreme
Court explained that the Fourth Amendment requires that a police
officer have probable cause to believe that the object is one that the
police officer has power to seize, i.e., contraband, fruits or
instruments of crime, or evidence that a crime was committed or that
a particular person committed it. Arizona v. Hicks, 480 U.S.. 321,
326-29 (1987).
In Thomas v. State, 572 S.W.2d 507 (1976), the Texas Court of
Criminal Appeals held in that case that the seizure of pills could not
be upheld under the plain view doctrine. “Prescription drugs are not
inherently contraband, stolen goods or objects dangerous in
themselves. The mere viewing of bottles with drugstore labels on
them did not authorized the officers to enter the automobile and
search the jacket or seize the pills.” Id. At 509.
In Christmas v. United States, 314 A.2d 473 (D.C. 1974), the
District of Columbia Court of Appeals ruled,
The only theory upon which the seizure of the medicine
vial and the examination of its contents may be sustained
is that the vial (although not its contents) was in plain
view.
But even under such circumstances the Court
admonished…”that plain view alone is never enough to
justify the warrantless seizure of evidence.” Absent
therefore probable cause to believe at the time of the
initial intrusion that the medicine vial contained
contraband or that it in some way endangered the
officer’s safety, he had in our opinion no more authority to
seize the vial and examine its contents than he would
have had, under the circumstances, to seize and examine
the contents of a woman’s handbag, a man’s attache
case, or a grocery bag. Id. At 476.
In this case, Officer Mobley stated he did not have any probable
cause to arrest the Appellant. Office Mobley continued stating that he
couldn’t see anything in the pill bottle. It turns out that another officer,
Lieutenant Johnson actually opened the bottle and stated that it was
cocaine. There is absolutely no evidence brought forward from the
prosecution that Lieutenant Johnson had any legal basis to open the
pill bottle.
At the suppression hearing, Appellant’s counsel argued that he
had an interest in the pill bottle because he was the nurse taking care
of the person whose name was on the prescription. (RR Vol 2, p. 44).
Appellant ran from the hotel room with his ward’s pill bottle clutched
in his hand to avoid the robbers which demonstrates he had an
actual, subjective expectation of privacy. As such, the appellant had
reasonable expectation of privacy in the thing searched. Villareal v.
State, 935 S.W.2d 134, 140 (Tex. Crim. App.1996).
ARGUMENTS AND AUTHORITIES FOR ISSUE TWO
THE TRIAL COURT REVERSIBLY ERRED IN ADMITTING THE
PHYSICAL EVIDENCE OF THE PILL BOTTLE WITH COCAINE.AS
THERE WAS NO PROPER CHAIN OF CUSTODY
Proof of the beginning and end of a chain of custody will support the
admission of the evidence in the absence of any evidence of tampering or
alteration. Dossett v. State, 216 S.W.3d 7, 17 (Tex-App – San Antonio
2006 pet ref’d)
At trial, Officer Mobley said he took the pill bottle and opened it. (RR
Vol 4, p. 103) Officer Mobley stated that after he opened the bottle he
observed inside a plastic bag that had a white rock substance that
appeared to be crack cocaine. (RR Vol 4, p. 104) Later, Officer Mobley
states that actually Lieutenant Johnson took the bottle and opened it. (RR
Vol 4, p. 123). It was Lieutenant Johnson that stated it was crack cocaine
in the bottle. (RR Vol 4, p. 124). Officer Mobley field tested the bottle with a
fluid test. (RR Vol 4, p. 124). Then Officer Mobley gave the bottle to Officer
Joe Chastain. (RR. Vol 2, p. 35.) Officer Mobley testified that he booked
the Appellant for possession of a controlled substance, 4 grams to 200
grams. (RR.Vol 4, p. 110).
Officer Beck testified regarding receiving the pill bottle for evidence
storage from Officer Mobley. (RR Vol 4, p. 71). Officer Beck took the
evidence to the Tyler lab. (RR Vol 4, p. 71). Ms. Esparza from the Tyler
lab testified that the substance weighed 0.72 grams (RR Vol 4, p. 77).
Clearly, there is a question about the beginning of the chain of
custody based on the contradictory statements from Officer Mobley. He
begins by stating that he took the pill bottle and opened it and found
cocaine. Then, he corrects himself and states that Lieutenant Johnson
actually took the bottle and opened it and proclaimed finding cocaine.
Lieutenant Johnson was the beginning of the chain of custody. Counsel for
appellant objected to the chain of custody stating the State had not justified
the chain of custody. (RR Vol. 4, p. 105). Additionally, there is a question
on why Appellant is booked in on possession of 4 to 200 grams when the
lab reports the weight of the substance to be less than 1 gram.
CONCLUSION
The evidence presented to secure a conviction of the Appellant was
the result of an illegal search inside the pill bottle and therefore
inadmissible under the Texas exclusionary rule, (Tex. Code Crim. Pro. Art.
38.23). There was no warrant, no probable cause, nor any exceptions to
allow the search inside the seized bottle.
The chain of custody of the pill bottle was not proven from the
beginning of the chain of custody. Testimony from Officer Mobley was that
another officer, Lieutenant Johnson, was the first person to take the pill
bottle and open it and declare cocaine. Coupled with the discrepancy
between the amount that the Appellant was booked for and the actual
weight raises clear questions of the beginning of the chain of custody. The
State had the burden to prove the chain of custody and the State failed to
call the person who first took the pill bottle and open it.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this
Honorable Court of Appeals reverse the conviction in this case and render
a judgment of acquittal, or if this Honorable Court elects not to render a
judgment of acquittal, Appellant prays this Honorable Court of Appeals
reverse the conviction and remand the case to the trial court.
Respectfully submitted,
/s/ Laura M. Carpenter
Laura M. Carpenter
Counsel for Appellant
106 W. Houston
Marshall, TX 75672
903-938-7440 tel.
903-938-3008 fax
State Bar No. 08618050
CERTIFICATE OF SERVICE
This is to certify that on April 28, 2015, a true and correct copy of the
foregoing document was delivered by mail to counsel for the state, Hon.
Coke Solomon, at Harrison County District Courthouse, Marshall, Texas.
/s/ Laura M. Carpenter
Laura M. Carpenter
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 3,591 words according to the computer
program used to prepare the document.
/s/ Laura M. Carpenter
Laura M. Carpenter
Terry Eugene Glenn, Sr. v. State
Combined Opinion