ACCEPTED
07-15-00039-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
7/27/2015 10:16:01 AM
Vivian Long, Clerk
No. 07-15-00039-CR
COURT OF APPEALS FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
SEVENTH DISTRICT 7/27/2015 10:16:01 AM
VIVIAN LONG
CLERK
FOR THE STATE OF TEXAS
JOSEPH LEWIS GONZALES,
APPELLANT,
THE STATE OF TEXAS,
APPELLEE.
Appealed from the 181st District Court of
Potter County, Texas
Cause No. 68,522-B
APPELLANT’S BRIEF
Steven M. Denny
SBN: 24005798
2414 Line Ave.
Amarillo, Texas 79106
(806) 379-2010
Fax:(806)379-2012
lawyerdenny@aol.com
Attorney for Appellant,
Joseph Gonzales
ORAL ARGUMENT REQUESTED
1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................................................ 3
INDEX OF AUTHORITIES ..................................................................................................................... 4
STATEMENT OF THE CASE.................................................................................................................. 7
STATEMENT OF FACTS ........................................................................................................................ 8
SUMMARY OF THE ARGUMENT ...................................................................................................... 10
POINT OF ERROR ................................................................................................................................. 11
THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT A CONSENSUAL
ENCOUNTER BECAUSE IT DID NOT OCCUR IN A PUBLIC PLACE
CONCLUSION AND PRAYER .............................................................................................................. 18
CERTIFICATE OF SERVICE................................................................................................................. 18
CERTIFICATE OF COMPLIANCE ....................................................................................................... 19
2
IDENTITY OF PARTIES AND COUNSEL
In order that the members of the Court may determine disqualification in or recusal
pursuant to T.R.A.P. 74(c), Appellant certifies that the following is a complete list
of parties:
Judge Presiding: Honorable John Board
181st District Court
501 S. Fillmore
Ste. 3b
Amarillo, Texas 79101
Appellant: Joseph Lewis Gonzales TDCJ # 01976373
JB Wheeler State Jail
986 County Rd. AA
Plainview, TX 79072
Attorney for Appellant Lynda Smith
At Trial: 3611 Soncy
Amarillo, TX 79119
Attorney for Appellant Steven M. Denny
On Appeal: 2414 Line Ave.
Amarillo, Texas 79106
Attorney for State Chuck Slaughter
At Trial: Assistant District Attorney
501 S. Fillmore
Ste. 5a
Amarillo, Texas 79101
Attorney for State Randall Sims
on Appeal: 47th District Attorney
501 S. Fillmore
Ste. 5a
Amarillo, Texas 79101
3
INDEX OF AUTHORITIES
Cases
Amorella v. State, 554 S.W.2d 700, (Tex.Crim.App.1977) .....................................16
Arguellez v. State, 409 S.W.3d 657, (Tex. Crim. App. 2013) .................................10
Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007)) ....11
California v. Hodari D., 499 U.S. 621, (1991) .........................................................12
Crain v. State, 315 S.W.3d 43, (Tex. Crim. App. 2010) ..........................................10
Derichsweiler v. State, 348 S.W.3d 906, (Tex.Crim.App.2011)..............................13
Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ...........11
Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)(plurality
op.) ............................................................................................................11, 12, 14
Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) .....................11
Green v. State, 256 S.W.3d 456, (Tex.App.-Waco 2008, no pet.) ...........................16
Gurrola v. State, 877 S.W.2d 300, (Tex.Crim.App.1994) .......................................16
Hudson v. State, 247 S.W.3d 780, (Tex.App.-Amarillo 2008, no pet.) ...................16
LeBlanc v. State, 138 S.W.3d 603, (Tex. App.-Houston [14th Dist.] 2004, no pet.)
..............................................................................................................................16
Morris v. State, 739 S.W.2d 63, (Tex.Crim.App.1987) ...........................................12
Shaffer v. State, 562 S.W.2d 853, (Tex.Crim.App.1978) ........................................16
Sieffert v. State, 290 S.W.3d 478, (Tex.App.-Amarillo 2009, no pet.) ...................16
State v. Castleberry, 332 S.W.3d 460, (Tex.Crim.App.2011)..................................12
State v. Woodard, 341 S.W.3d 404, (Tex. Crim. App. 2011) ............................10, 11
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ....................11, 13
United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607
(1975) ..............................................................................................................13, 15
United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)
..............................................................................................................................12
United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) .......13
Valtierra v. State, 310 S.W.3d 442, (Tex. Crim. App. 2010) ...................................10
Viveros v. State, 828 S.W.2d 2, (Tex.Crim.App. 1992) ..........................................16
Wade v. State, 422 S.W.3d 661, (Tex. Crim. App. 2013) ........................................10
Statutes
Tex. Code Crim. Pro. §18.01 ...............................................................................7, 16
Tex. Code Crim. Pro. §38.22 ...............................................................................7, 16
Tex. Code Crim. Pro. §38.23 ...............................................................................7, 16
4
Constitutions
Texas Constitution Article 1, §9...........................................................................7, 16
U.S. Const. amend V ............................................................................................7, 16
U.S. Const. amend VI...........................................................................................7, 16
U.S. Const. amend XIV ........................................................................................7, 16
U.S. Const. amend. IV..........................................................................................7, 16
5
JOSEPH LEWIS GONZALES § IN THE SEVENTH DISTRICT OF TEXAS
§
VS. § OF
§
THE STATE OF TEXAS § AMARILLO, TEXAS
No. 07-15-00039-CR
JOSEPH LEWIS GONZALES,
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
APPELLANT’S BRIEF
TO THE COURT OF APPEALS:
Appellant, JOSEPH LEWIS GONZALES, respectfully submits this brief. Mr.
Gonzales will be referred to as Appellant and the State of Texas will be referred to as
State.
6
STATEMENT OF THE CASE
Appellant challenged the search, seizure, and arrest in the cause by pre-trial
motion CR 1-591 heard by the Court on January 12, 2015 RR 2-6.52 The Court found
that the encounter between appellant and the government was a consentual encounter.
RR 2-185.8 The court overruled appellant’s motion. RR 2-185.19 Afterwards,
appellant plead guilty to Possession of a Controlled Substance on January 12, 2015 in
the 181st District Court in Potter County RR 2-188.5 and was sentenced by the court to
15 years in The Texas Department Of Criminal Justice Institutional Division. RR 2-
192.22 A notice of appeal was timely filed on January 21, 2015. CR 1-88
1 The Clerk’s record consists of 2 volumes and will be referred to as [CR volume #-page #]
2 The Reportrer’s record consists of 3 volumes and will be referred to as [RR volume # - page # . line #]
7
STATEMENT OF FACTS
Appellant, Joseph Gonzales, was charged with the offense of Possession of a
Controlled Substance alleged to have occurred on or about January 27, 2014. (CR 1-
20) Appellant challenged the search that was the basis of his arrest on the Fourth,
Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article
1, §9 of the Texas Constitution, and Articles 18.01, 38.22 and 38.23 of the Texas Code
of Criminal Procedure. CR 1-59 Amarillo Police Officer Tollerson testified that he saw
appellant commit a traffic violation of “failed to signal intent pulling into the private
parking lot.” RR 2-10.12 He testified that it was 2:00 a.m. RR 2-11.3 and that he had
seen the violation from several “short blocks” RR 2-11.18 away by observing appellant
in the rearview and sideview mirrors RR 2-11.21from the passenger seat of the patrol
car. RR 2-11.5 When Officers Slover and Tollerson reached the private driveway
behind the building, RR 2-12.5 appellant had already exited his vehicle, they made
contact with appellant, and they obtained his identification.RR 2-12.7 Officer
Tollerson then re-approached appellant for the purpose of “speak[ing] with him
regarding the traffic violation.” RR 2-12.21 Officer Tollerson then asked appellant if
he had any weapons RR 2-13.23 to which appellant replied that he had a pocketknife
and began to retrieve it for the officer. RR 2-14.17 During the search, the officers
8
found the knife RR 2-17.13 and a small tobacco can which they later pried open. RR 2-
16.12 Appellant testified that he consented to a patdown for weapons after he told the
officers he had a knife in his pocket. RR 2-152.1 The State introduced a video of
appellant’s “consent” for a search of his person for contraband via a video taken “30
minutes to an hour” after the initial stop. RR 2-151.7 Appellant testified that he had
driven “right past the front entrance to that building where there’s a driveway and a
parking lot, circled completely around this building and then drove all the way to the
back.” RR 2-156.16 The Court found that there “wasn’t a traffic stop”, RR 2-181.22
but instead an “encounter with consensual search” RR 2-185.9 and overruled the
motion. RR 2-185.19
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SUMMARY OF THE ARGUMENT
THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT A CONSENSUAL
ENCOUNTER BECAUSE IT DID NOT OCCUR IN A PUBLIC PLACE
The ends don’t justify the means, even when the result is locking up a
habitual felon like Joseph Gonzales for fifteen more years. In this case, the Court
found the officer’s testimony that they were attempting to enforce the traffic laws
on January 27, 2014 at 2:00 a.m. not credible. In an attempt to salvage the case, the
State argued that it instead was a consensual encounter despite occurring on private
property with lights and spotlights pointed at an appellant who did not feel free to
leave lest he be arrested for evading arrest. The officers alleged that the area was a
drug distribution point in their report, but disavowed any suspicion that appellant
was participating in narcotics activity. They failed to articulate any suspicion, be it
reasonable or unreasonable, to detain appellant. As such, all evidence seized as a
result of such detention and search should be held inadmissible.
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POINT OF ERROR
THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT
A CONSENSUAL ENCOUNTER BECAUSE IT DID NOT OCCUR IN
A PUBLIC PLACE
Standard of Review
A trial court's ruling on a suppression motion is reviewed on appeal for abuse of
discretion, with almost complete deference being given to its determination of
historical facts, especially if those are based on an assessment of credibility and
demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013); Crain v.
State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Regardless of whether the trial court
granted or denied the motion, appellate courts view the evidence in the light most
favorable to the ruling. Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim. App. 2013);
State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). Appellate courts
review de novo a trial court's application of the law of search and seizure to the facts.
Wade, 422 S.W.3d at 667; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
2010).
Relevant Caselaw
11
There are three distinct types of police-citizen interactions: (1) consensual
encounters that do not implicate the Fourth Amendment; (2) investigative detentions
that are Fourth Amendment seizures of limited scope and duration that must be
supported by a reasonable suspicion of criminal activity; and (3) arrests, the most
intrusive of Fourth Amendment seizures, that are reasonable only if supported by
probable cause. Woodard, 341 S.W.3d at 410-11 (citing Florida v. Bostick, 501 U.S.
429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Terry v. Ohio, 392 U.S. 1, 30-31,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Gerstein v. Pugh, 420 U.S. 103, 111-12, 95
S.Ct. 854, 43 L.Ed.2d 54 (1975)). Police officers are as free as any other citizen to
approach citizens in a public place to ask for information or cooperation. Such
consensual encounters may be uncomfortable for a citizen, but they are not Fourth
Amendment seizures:
[L]aw enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking
him if he is willing to answer some questions, by putting questions to him if the
person is willing to listen, or by offering in evidence in a criminal prosecution
his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491 at 497
to 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)(plurality op.) (citations
omitted)(emphasis added).
No bright-line rule governs when a consensual encounter becomes a detention.
Woodard, 341 S.W.3d at 412 (citing Brendlin v. California, 551 U.S. 249, 255, 127
S.Ct. 2400, 168 L.Ed.2d 132 (2007)). Courts must take into account the totality of the
12
circumstances of the interaction to decide whether a reasonable person would have felt
free to ignore the police officer's request or terminate the consensual encounter. State
v. Castleberry, 332 S.W.3d 460, 467 (Tex.Crim.App.2011). This is known as the
Mendenhall test. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229
(1983) (relying on Mendenhall to conclude that the circumstances — "a show of
official authority such that a reasonable person would have believed that he was not
free to leave" — indicated a Fourth Amendment seizure); United States v. Mendenhall,
446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ("a person has been seized
within the meaning of the Fourth Amendment only if, in view of all of the
circumstances surrounding the incident, a reasonable person would have believed he
was not free to leave."); Morris v. State, 739 S.W.2d 63, 66 (Tex.Crim.App.1987)
("Mendenhall and Royer indicate the circumstances of a case must be examined in
order to decide if a defendant would have reasonably believed that he was not free to
leave.").
If ignoring the request or terminating the encounter is an option, then no Fourth
Amendment seizure has occurred. Castleberry, 332 S.W.3d 460, 467 (Tex.
Crim.App.2011). But — as the Supreme Court made clear in California v. Hodari D.,
499 U.S. 621, 627-28 (1991); Castleberry, 332 S.W.3d at 466-67. — if an officer
13
through force or a show of authority succeeds in restraining a citizen in his liberty, the
encounter is no longer consensual; it is a Fourth Amendment detention or arrest,
subject to Fourth Amendment scrutiny.
If the encounter is not consensual or escalates from a consensual to a non-
consensual encounter, an officer must have a reasonable suspicion of criminal activity
to detain or seize an individual for questioning. United States v. Brignoni-Ponce, 422
U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). A police officer has
reasonable suspicion for a detention if he has specific, articulable facts that, when
combined with rational inferences from those facts, would lead him to reasonably
conclude that the person detained is, has been, or soon will be engaged in criminal
activity. This is an objective standard that disregards the actual subjective intent of the
arresting officer and looks, instead, to whether there was an objectively justifiable
basis for the detention. 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,
104 L.Ed.2d 1 (1989); Terry, 392 U.S. at 21-22, 88 S.Ct. 1868).
Argument
The trial court ruled that the encounter between appellant and officers on
14
January 27, 2014 was a consensual encounter rather than a traffic stop. RR 2-185.9
The record, however, is silent on an essential element of a consensual encounter- that it
take place in a public place as required in Florida v. Royer, 460 U.S. 491 at 497.
Officer Tollerson’s testimony at the hearing was that the encounter was in a “private
parking lot” RR 2-10.9, “private parking lot” RR 2-10.13, “private parking lot” RR 2-
26.13, and “private drive” RR 2-71.12 Amarillo Police Officer Camarillo testified that
the encounter was on “private property.” RR 2-105.18 Appellant also testified that it
was “private property.” RR 2-138.16 Since the encounter did not take place in a
“public place,” it was not a consensual encounter.
Even if the encounter had taken place in a public place, a reasonable person in
appellant’s position would not have felt free to leave. When we apply the Mendenhall
test to determine whether there was "a show of official authority such that a reasonable
person would have believed that he was not free to leave," we must look to Officer
Caramillo’s testimony that Officer Tollerson’s red and blue lights were on RR 2-
110.22, Officer Tollerson’s testimony that the patrol car’s spotlight was on and pointed
towards appellant RR 2-78.14, and appellant’s testimony that he felt that he was not
free to leave or he would have been charged with “evading arrest,” RR 2-129.4
15
Officer Tollerson attempted to explain that once appellant was detained in the
traffic stop, he continued to be detained after they found the substance in the following
exchange:
Q. [by the State’s Attorney] Is that after he was taken into custody after you
found the substance? Was he let me rephrase. Did you detain him after
you found the substance?
A. [by officer Tollerson] A person is detained once a traffic --
Q. Just did you detain him?
A. He was continued to be --
Q. All right.
A. detained, yes.
Q. And at that point was he free to leave?
A. No. RR 2-18.12 to 22 (emphasis added)
The most dispositive testimony that there was in fact a detention is in this exchange:
Q. [by the state’s attorney] So you didn’t detain him at all, did you?
A. [by officer Tollerson] We did. RR 2-60.23 to 24
Since appellant was in fact detained as the facts and testimony above prove, the
officers would need to articulate reasonable suspicion for such detention. United States
v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The
record from the hearing itself proves that the officers did not have reasonable suspicion
of a criminal offense- other than the traffic violation which the court held was not the
reason for the stop- in the following exchange:
Q. [by Appellant’s trial counsel] And the fact that he pulled into that parking
lot made him a suspect for your narcotics investigation, didn’t it?
A. [by Officer Tollerson] No, ma’am.
16
During the hearing, the area was described as a “drug distribution point,” RR2-
55.8, “high crime rate, high drug area,” RR 2-131.8 RR 2-141.19. Such an allegation
does not itself arise to a reasonable suspicion:
Although the time of day and the level of criminal activity in an area may be
factors to consider in determining reasonable suspicion, they are not suspicious
in and of themselves; Hudson v. State, 247 S.W.3d 780, 786-87 (Tex.App.-
Amarillo 2008, no pet.); Green v. State, 256 S.W.3d 456, 462 (Tex.App.-Waco
2008, no pet.), and that detainees were seen or found in a high crime area alone
does not warrant reasonable suspicion. Gurrola v. State, 877 S.W.2d 300, 303
(Tex.Crim.App.1994); Amorella v. State, 554 S.W.2d 700, 701
(Tex.Crim.App.1977). Neither does driving slower than the posted speed;
Viveros v. State, 828 S.W.2d 2, 3 (Tex.Crim.App. 1992); Shaffer v. State, 562
S.W.2d 853, 854-55 (Tex.Crim.App.1978), nor nervousness; Green, 256
S.W.3d at 462; LeBlanc v. State, 138 S.W.3d 603, 608 n. 6 (Tex. App.-Houston
[14th Dist.] 2004, no pet.), by themselves, warrant reasonable suspicion. Sieffert
v. State, 290 S.W.3d 478, 485 (Tex.App.-Amarillo 2009, no pet.).
Since the court ruled that the encounter was not a traffic stop, RR 2-181.22 and
since the Officers did not offer any reasonable suspicion that a crime was taking place,
and since the officers denied that appellant was a suspect in a narcotics investigation,
the Officers did not have a reasonable suspicion to detain appellant. Without
reasonable suspicion, the detention was a violation of appellant’s right to be free from
unreasonable searches under the Fourth, Fifth, Sixth and Fourteenth Amendments to
the United States Constitution and Article 1, §9 of the Texas Constitution, and Articles
17
18.01, 38.22 and 38.23 of the Texas Code of Criminal Procedure, and all evidence
obtained as a result of that unlawful detention, search, and seizure should be
suppressed.
CONCLUSION AND PRAYER
For the above and forgoing reasons, Appellant respectfully prays that upon
appellate review, the Court of Appeals find that the detention, search, and seizure of
appellant was unlawful and in violation of his right to be free from unreasonable
searches, hold the fruits of that search inadmissible, and remand this cause to the trial
court for further proceedings.
Respectfully Submitted,
/s/denny
STEVEN M. DENNY
ATTORNEY AT LAW
2414 Line Ave.
AMARILLO, TEXAS 79106
(806) 379-2010
SBN: 24005798
lawyerdenny@aol.com
CERTIFICATE OF SERVICE
I, Steven M. Denny, attorney for the Appellant, certify that a true and correct
18
copy of the foregoing brief has been provided to the Potter County Attorney on this the
27 day of July , 20__15__.
/s/denny
STEVEN M. DENNY
CERTIFICATE OF COMPLIANCE
I, Steven M. Denny, attorney for the Appellant, certify that this brief
complies with T.R.A.P. 9.4 and contains 1,898 words as calculated by Microsoft
Word in the included content as described in T.R.A.P 9.4(1) on this the 27 day
of July , 20_15_.
/S/denny
STEVEN M. DENNY
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