ACCEPTED
06-14-00186-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/1/2015 3:19:49 PM
DEBBIE AUTREY
CLERK
ORAL ARGUMENT REQUESTED ONLY
IF REQUESTED BY APPELLANT
FILED IN
6th COURT OF APPEALS
No. 06-14-00186-CR through 06-14-00189-CR TEXARKANA, TEXAS
7/1/2015 3:19:49 PM
IN THE SIXTH COURT OF APPEALS DEBBIE AUTREY
TEXARKANA, TEXAS Clerk
________________
DARRIAN DE’ANTHONY DAVIS-SANDERS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
________________
On Appeal in Cause Nos. CR-12-24246 and CR-12-24273 through CR-12-24275
From the 336THJudicial District Court
of Fannin County, Texas
__________________________________________________________________
STATE’S BRIEF
__________________________________________________________________
John B. Setterberg
State Bar No. 24043915
Assistant Criminal District Attorney
Fannin County, Texas
101 E. Sam Rayburn Dr., Ste. 301
Bonham, Texas 75418
903-583-7448
903-583-7682 (fax)
ATTORNEY FOR THE STATE
IDENTITY OF PARTIES AND COUNSEL
The State certifies that the following is a complete list of the parties,
attorneys, and other persons with interest in the outcome of this case:
(1) John B. Setterberg, Assistant Criminal District Attorney, Fannin County,
Texas, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas 75418;
ATTORNEY FOR THE STATE OF TEXAS.
(2) Micah Belden, 711 N. Travis St., Sherman, Texas 75090; APPELLATE
ATTORNEY FOR APPELLANT.
(3) Donald K. Hoover, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas
75418, TRIAL ATTORNEY FOR APPELLANT;
(4) Darrian De’Anthony Davis-Sanders, TDCJ # 01957802, Eastham Unit, 2665
Prison Road #1; Lovelady, Texas 75851; APPELLANT.
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT .............................................................................................................5
The trial court could have rationally denied Appellant’s motion to suppress...7
a. Officers had authority to enter the motel room to serve an arrest warrant
on the resident tenant .............................................................................................8
b. Officers had authority to sweep the room for weapons, drugs, and
people who might be hiding because circumstances indicated they would
find those things .....................................................................................................8
c. Officers need not obtain a search warrant in order to ensure their safety
while executing an arrest warrant ........................................................................11
d. Appellant was not under arrest at the time of the search, and officers
could not be expected to conduct a protective sweep without asking limited,
focused questions to locate the items they were searching for ............................12
CONCLUSION ........................................................................................................14
PRAYER ..................................................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................16
CERTIFICATE OF SERVICE ................................................................................16
ii
INDEX OF AUTHORITIES
Cases
Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)....................................12
Ex parte Ewing, 570 S.W.2d 941 (Tex. Crim. App. 1978) .......................................6
Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011) ...............................5, 7
Green v. State, 78 S.W.3d 604 (Tex. App. – Fort Worth 2002) ................................8
Kentucky v. King, 131 S.Ct. 1849 (2011) ............................................................9, 11
Maryland v. Buie, 494 U.S. 325 (1990) ...............................................................8, 13
Michigan v. Long, 463 U.S. 1032 (1983) ..................................................................9
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) ...............................7
Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) .........................................7
Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000) ....................................8, 10
Strickland v. Washington, 466 U.S. 668 (1984) ........................................................6
Terry v. Ohio, 392 U.S. 1 (1968) .........................................................................9, 11
Voelkel v. State, 717 S.W.2d 314 (Tex. Crim. App. 1986)........................................9
Statutes
TEX. CODE CRIM. PRO. Art. 38.23 ............................................................................12
iii
No. 06-14-00186-CR through 06-14-00189-CR
IN THE SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
________________
DARRIAN DE’ANTHONY DAVIS-SANDERS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
________________
TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:
COMES NOW the State of Texas, by and through her assistant criminal
district attorney, and respectfully submits this brief in the above-styled and
numbered cause. This is an appeal from four convictions of drug-related offenses.
(Cl. R. at 34-35). 1 Appellant plead guilty in all four cases and was placed on
deferred adjudication on September 19, 2012 for a period of ten years. (Cl. R. at
34-35). The State filed a motion to adjudicate Appellant’s probation on May 29,
2014 (Cl. R. at 39). After a hearing, the trial court found both paragraphs alleged in
the motions to be true and, in cause numbers CR-12-24246, CR-12-24273 and CR-
12-24275, sentenced Appellant to serve 10 years in the Institutional Division of the
Texas Department of Criminal Justice (Cl. R. at 52-53). In cause number CR-12-
1
For brevity, references to the clerk’s records will be to that in cause no. CR-12-24246 unless
otherwise noted
24274, the court sentenced Appellant to serve 60 years (Cl. R. at 53-54). Appellant
filed notice of appeal on October 17, 2014 (Cl. R. at 55).
STATEMENT OF FACTS
On April 22, 2014, Officer Gary Vann of the Garland Police Department
received numerous reports that two black males were selling methamphetamine in
the parking lot of the Kingsley Inn & Suites (Ct. R. vol. 1, at 11). The Kingsley
Inn & Suites was a local motel that was known for high drug and prostitution
activity (Ct. R. vol. 1, at 10). Officer Vann also got word from a trusted informant
that the two black males had attempted to sell him methamphetamine (Ct. R. vol.
1, at 11). The informant described the men and noted that they were each carrying
a handgun (Ct. R. vol. 1, at 11).
Officer Vann then went to the motel office and learned that the room
described by the informant was rented and occupied by Brittany Guignard (Ct. R.
vol. 1, at 11). He confirmed through his dispatch that Guignard had outstanding
arrest warrants and called for assistance in serving them (Ct. R. vol. 1, at 12). Once
his back-up arrived, Officer Vann knocked on the door of the motel room (Ct. R.
vol. 1, at 12). There was no answer, but Vann could hear people talking inside (Ct.
R. vol. 1, at 12). He knocked again, and saw Appellant come to front window and
peek out from behind the blinds (Ct. R. vol. 1, at 12). Appellant quickly closed the
blinds and moved away from the window, and Officer Vann could hear “a bunch
2
of running around, talking” (Ct. R. vol. 1, at 12). He knocked a third time; still no
answer (Ct. R. vol. 1, at 12). When Officer Vann knocked a fourth time, Guignard
finally opened the door to the motel room. (Ct. R. vol. 1, at 12).
When the door opened, Officer Vann was immediately confronted with “a
lot of smoke – marijuana smoke” (Ct. R. vol. 1, at 12). Vann, who was a drug
recognition expert, immediately recognized the odor and saw additional marijuana
in plain sight on a table approximately five feet away (Ct. R. vol. 1, at 12). No one
else was visible in the tiny one-room area, however. The logical place for hiding
was in the enclosed bathroom, which was the only other room in the apartment that
was separate from the main room in which he stood, and Officer Vann could hear
“rustling around” inside (Ct. R. vol. 1, at 12).
At this point, Officer Vann became concerned that whoever was hiding in
the bathroom was destroying drugs or evidence, so he made entry to secure the
area (Ct. R. vol. 1, at 12-13). While officers searched for others, Vann made
contact with the Appellant, who was just coming out of the bathroom (Ct. R. vol.
1, at 13). Officers also located two other people in the room, one of whom had
been hiding under a pile of clothes in the corner (Ct. R. vol. 1, at 13).
Once everyone had been located within the room, Officer Vann asked
whether Guignard had any firearms (Ct. R. vol. 1, at 14). She replied that she one
in her backpack and pointed it out among the several that were in the room (Ct. R.
3
vol. 1, at 14-15). Officer Vann recognized Appellant as matching the description
of one of the two men selling methamphetamine, so he asked Appellant whether he
too had a forearm (Ct. R. vol. 1, at 14-15). Appellant advised that he had one in his
backpack and, at Officer Vann’s request, identified which bag belonged to him (Ct.
R. vol. 1, at 14-15). Officer Vann verified with Appellant that the weapon was in
the main pocket of the bag and looked inside to confirm (Ct. R. vol. 1, at 15).
When he did, Officer Vann saw a Smith & Wesson .40 caliber handgun, as well as
the Appellant’s driver’s license and social security card (Ct. R. vol. 1, at 15). When
he removed the weapon to secure it, Officer Vann also saw a large plastic baggy
containing a white, crystal substance that was later confirmed to be
methamphetamine (Ct. R. vol. 1, at 15, 32).
SUMMARY OF THE ARGUMENT
Appellant argues that his trial counsel could have moved to suppress the
evidence found in his backpack. He complains that officers had no right to enter
the room without a warrant, that they had no right to sweep the room once inside,
that they had no right to question Appellant about the existence of a firearm, and
that they had no right to search Appellant’s bag to recover the firearm.
Despite Appellant’s arguments to the contrary, officers were authorized to
enter to motel room in order to serve an arrest warrant on its occupant, Brittany
Guignard. Additionally, officers had authority to enter and secure plainly visible
4
contraband, and the events leading up to their entry gave officers authority to
sweep the room for additional occupants who might be hiding or destroying
evidence. Moreover, the reliable information received by the officers indicated
that the occupants, one of whom matched the description given by their informant,
were armed with firearms, and officers therefore had a right to search for weapons
as well. Finally, officers were permitted to ask narrowly focused questions of
Appellant in order to ascertain (a) the presence of a weapon, and (b) its location.
In short, nothing the officers did exceeded their authority under the
circumstances. Any motion to suppress would therefore not have a reasonable
basis in law or in fact, and counsel was under no professional obligation to file it.
Likewise, Appellant suffered no harm from counsel’s refusal to file a motion
because it is not reasonably likely that the motion would have been granted.
Because Appellant does not show that the trial court’s decision to revoke
probation, or its sentence upon revocation, would have been different had counsel
filed a motion to suppress, he has not demonstrated harm and his claim should be
overruled.
ARGUMENT
Texas courts apply the Strickland standard when considering a claim of
ineffective assistance of counsel. Ex parte Martinez, 330 S.W.3d 891, 900 (Tex.
Crim. App. 2011). That standard requires the applicant to show, by a
5
preponderance of the evidence, that his attorney’s performance was unreasonably
deficient and that he was actually prejudiced by the deficiency. Id. at 900-01.
In assessing deficiency, the reviewing court asks whether counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Strickland v. Washington, 466 U.S. 668, 688 (1984). The
reviewing court must be highly deferential to counsel’s performance, and must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. at 689. The court must look to the totality
of the representation and base its decision on the facts of the particular case, with
every effort being made to eliminate the distorting effects of hindsight. Strickland,
466 U.S. at 689-90. This is because “representation is an art, and an act or
omission that is unprofessional in one case may be sound or even brilliant in
another.” Id. at 693. Therefore, the mere fact that another attorney might have
pursued a different strategy will not support a finding of ineffective assistance of
counsel, and the record must affirmatively show that counsel’s action was without
any plausible basis. Id. at 689; Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim.
App. 1978).
In addition to showing that counsel’s performance fell below an objective
standard of reasonableness, an appellant must also prove that there is a reasonable
probability that but for counsel’s errors, the result of the trial would have been
6
different. Strickland, 466 U.S. at 694. It is not enough to show that the errors had
some conceivable effect on the outcome of the proceeding. Id. at 693. Rather, the
appellant must show that the decision reached would reasonably likely have been
different absent counsel’s error. Id. at 696. Though it is not a strict outcome-
determinative test, “the difference… should alter the merit of an ineffectiveness
claim only in the rarest case.” Id. at 697.
To successfully demonstrate ineffectiveness for failure to object to evidence,
the applicant must show that the trial court would have erred in overruling a
motion to suppress. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.
2011). A trial court commits error in admitting evidence over objection if it acts
arbitrarily or capriciously, or without any reference to guiding rules or principles.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The trial
court is given a limited right to be wrong, provided its decision falls within the
zone of reasonable disagreement. Id.; Moses v. State, 105 S.W.3d 622, 627 (Tex.
Crim. App. 2003). Put another way, Appellant’s trial counsel was ineffective only
if the trial court could not rationally deny his motion to suppress. If the court could
have rationally denied Appellant’s motion, then counsel was not ineffective for
refusing to present it.
The trial court could have rationally denied Appellant’s motion to suppress.
Appellant lists a number of reasons why the officers should not have
7
searched his bag, and lumps them all together under the single claim that his trial
counsel was ineffective. First, he claims that the protective sweep was itself
overbroad and that the officers had no legal right to be in the motel room at all. He
also claims that Appellant was unlawfully questioned while in custody and that
Appellant did not consent to a search of his belongings.
a. Officers had authority to enter the motel room to serve an arrest
warrant on the resident tenant
Law enforcement may enter a suspect’s residence in order to execute an
arrest warrant, even if no search warrant authorizes their entry. Green v. State, 78
S.W.3d 604, 609 (Tex. App. – Fort Worth 2002, no pet.). Although Appellant
claims that “[i]t is clear that [Appellant] was the target of the search,” 2 the record
shows that officers were attempting to execute an arrest warrant for the owner of
the motel room, Brittany Guignard (Ct. R. vol. 1, at 11). Once she answered the
door and was positively identified, the officers were authorized to enter the room
and arrest Guignard under the warrant.
b. Officers had authority to sweep the room for weapons, drugs, and
people who might be hiding because circumstances indicated they would find those
things
A protective sweep is not a full search, but one that is quick and limited,
typically conducted incident to an arrest, to protect the safety of police officers or
others. Reasor v. State, 12 S.W.3d 813, 815 (Tex. Crim. App. 2000). Assuming
2
Appellant’s br. at 4.
8
sufficient articulable facts exist to support a reasonable apprehension of danger,
officers may, without probable cause or reasonable suspicion, look in closets and
other immediately adjoining spaces from which an attack could be launched.
Maryland v. Buie, 494 U.S. 325, 334 (1990). The sweep may last as long as
necessary to dispel a reasonable suspicion of danger. Id. at 335.
Even outside of an arrest context, if the circumstances at the time give rise to
a reasonable belief that an individual may have immediate control of a weapon,
officers are permitted to briefly search the person to ensure their safety. Terry v.
Ohio, 392 U.S. 1, 26 (1968). They may also search the immediate area
surrounding the person and the contents of any open or closed container within that
area, provided said container is capable of concealing a weapon. Michigan v. Long,
463 U.S. 1032, 1049-50 (1983); Voelkel v. State, 717 S.W.2d 314, 316 (Tex. Crim.
App. 1986).
Officers may also conduct a warrantless entry and sweep if there are other
compelling “exigent circumstances” making those acts objectively reasonable.
Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). For example, officers may enter
and search without a warrant when the circumstances indicate it is reasonably
necessary to prevent the imminent destruction of evidence. Id. at 1857.
Appellant argues that no circumstances existed that would have allowed a
protective sweep of the motel room or, alternatively, that the authority to sweep
9
was limited to making sure than no one was hiding or destroying evidence. The
first argument is misplaced because officers had the ability to sweep the room
incident to Guignard’s arrest. See Reasnor, 12 S.W.3d at 815. The second
argument fails because the facts known to the officers, as well as the reasonable
inferences drawn therefrom, indicated that there were individuals in the room who
were either armed or destroying evidence or both. Officers were therefore
authorized to search not only for individuals and drugs, but for weapons as well.
In the course of the weapons sweep, officers could open and look inside any
container that could reasonably contain a firearm.
The alternative suggested by Appellant – that the officers could not briefly
look inside such a container, in this case his bag – would put the officers at an
unreasonable risk of harm. These officers were outnumbered by unfamiliar people
in a bad neighborhood, they had received reliable information that a person
matching Appellant’s description was selling drugs and armed with a firearm, and
they had detected evidence of immediate drug possession and consumption in the
room. Appellant had already shut the blinds when he saw police and hidden in the
bathroom while they knocked on the door, so officers knew he was trying to avoid
police interaction, and his place of hiding was consistent with one who would flush
or hide drugs. Finally, when he was discovered Appellant had in his immediate
control an opaque backpack that conceivably could conceal a weapon. Given the
10
entirety of the situation, it would be wholly unreasonable to expect officers to not
secure the bag, or to simply hand it over to Appellant without any kind of
inspection.
When an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others, it would appear to be
clearly unreasonable to deny the officer the power to take necessary
measures to determine whether the person is in fact carrying a weapon
and to neutralize the threat of physical harm.
Terry v. Ohio, 302 U.S. 1, 24 (1963).
c. Officers need not obtain a search warrant in order to ensure their
safety while executing an arrest warrant
Appellant suggests that officers should have paused their arrest of Guignard
in order to obtain a warrant to search Appellant’s backpack. However, nothing in
the Constitution requires officers to “call a halt to criminal investigation the
moment they have the minimum evidence to establish probable cause,” and courts
have acknowledged that there are several acceptable reasons law enforcement may
not want to immediately obtain a warrant. Kentucky v. King, 131 S.Ct. 1849,
1860-61 (2011).
One of them, applicable here, is that officers may wish to obtain more
evidence before submitting what might otherwise be considered a marginal warrant
application. Id. at 1860. Indeed, until officers discovered methamphetamine in
Appellant’s bag they had little more than an informed suspicion he was involved in
11
drug trafficking. Likewise, at the time of the search, they did not know that
Appellant was on felony probation in Fannin County and therefore had no reason
to suspect his possession of a firearm was illegal. Thus they likely did not have
sufficient evidence to obtain a search warrant for Appellant’s bag, and they likely
could not have reasonably arrested Appellant for any crime at that time. However,
the officers did have a reasonable belief that he was armed while they were trying
to execute an arrest warrant and secure the remainder of the motel room. They
were therefore justified in searching for weapons to protect their own safety, but it
is unreasonable to suggest that they should have halted their investigation in order
to obtain a warrant.3
d. Appellant was not under arrest at the time of the search, and officers
could not be expected to conduct a protective sweep without asking limited,
focused questions to locate the items they were searching for
Finally, Appellant argues that the officers impermissibly questioned him
before they searched his bag. He appears to claim that because he was temporarily
detained pending the officers’ sweep, he was “in custody” and officers were
required to warn him before any questioning. See TEX. CODE CRIM. PRO. Art.
38.23. He cites to Dowthitt v. State for the proposition that there are four general
scenarios constituting “custody” for purposes of police questioning: (1) when the
suspect is physically deprived of his freedom in any significant way, (2) when law
3
This is particularly so because other officers would then have to securely detain Appellant and
the others in the motel room while they waited for Officer Vann to obtain the warrant.
12
enforcement tells the suspect he cannot leave, (3) when law enforcement creates a
situation that would lead a reasonable person to believe that his freedom has been
significantly restricted, and (4) when there is probable cause to arrest and law
enforcement does not tell the suspect he is free to leave. See 931 S.W.2d 244, 255
(Tex. Crim. App. 1996). However, Dowthitt goes on to state that in the first,
second or third scenario, the restriction upon the individual’s freedom must rise to
the level of an arrest, not merely an investigative detention. Id. In the fourth
scenario, the officer’s knowledge of probable cause must actually be conveyed to
the suspect. Id.
With that in mind, Appellant’s claim comes into serious doubt. There is
nothing in the record indicating that law enforcement told Appellant he was under
arrest or that he could not leave. There is likewise nothing in the record to suggest
Appellant tried to leave or asked to leave and was prevented from doing so. In
fact, there is nothing that suggests law enforcement informed Appellant that he was
even a suspect or that there was probable cause to arrest him. Rather, they simply
asked him whether he had a firearm on or near his person, and where it was
located. Once they ascertained its location in the Appellant’s bag, it became
necessary for officers to open the bag in order to (a) confirm the truth of his
statements, and (b) secure the weapon and “dispel the reasonable suspicion of
danger.” See Maryland v. Buie, 494 U.S. 325, 335 (1990). Because Appellant was
13
not under arrest or otherwise “in custody” at the time the officers spoke to him, and
because their questions were limited to locating the immediate threat of a firearm
on or near his person, officers were not require to warn him before asking
questions. Appellant’s trial counsel was therefore not ineffective for failing to
move to suppress his answers to those questions.
CONCLUSION
Trial counsel’s representation did not fall below an objective standard of
reasonableness, and there is nothing to suggest that Appellant would have obtained
a different result or sentence had counsel decided to file a motion to suppress. Such
a motion was not likely to succeed, as officers had a legal right to enter the
residence and, once there, to sweep the residence for people, weapons, and drugs.
Having located the Appellant under suspicious circumstances and under a
reasonable impression that he might be armed, the officers were justified in
searching not only his person and the immediate area, but also the bag within his
immediate control. The simple fact that counsel could have filed a motion to
suppress, or that another attorney might have, is simply not enough to sustain a
claim of ineffective assistance. Appellant must show, from the record, that
counsel’s decisions were without any plausible basis. Given the state of the law in
Texas and the particular facts of this case, he has failed to do so.
Moreover, Appellant has failed to show that the outcome of the case would
14
have been different had counsel filed the proposed motion. Even if, arguendo, the
law was murky or unclear on the propriety of the officers’ actions, there is still no
reasonable probability that the trial court would have granted the motion or handed
down a different sentence. In sum, trial counsel acted on an informed and reasoned
consideration of the law and the facts of his client’s case. Appellant’s claim of
ineffective assistance must therefore fail, and his point of error should be
overruled.
PRAYER
WHEREFORE, PREMISES CONSIDERED, there being no reversible error
in the trial of this case, the State respectfully moves this Court to overrule
Appellant’s point of error and affirm his conviction. The State further prays for
any and all such additional relief as the Court may deem just and appropriate.
Dated: July 1, 2015
Respectfully submitted,
/s/ John B. Setterberg
John B. Setterberg
State Bar No. 24043915
Assistant Criminal District Attorney
Fannin County, Texas
101 East Sam Rayburn Dr., Suite 301
Bonham, Texas 75418
903-583-7448
903-583-7682 (fax)
15
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the foregoing document contains 3,601
words, exclusive of the portions described by TEX. R. APP. P. 9.4 (i)(1), as
computed by the computer program used to prepare the document.
/s/ John B. Setterberg
John B. Setterberg
Assistant Criminal District Attorney
Fannin County, Texas
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing was served electronically to the individual listed below on this the 1st
day of July, 2015.
/s/ John B. Setterberg
John B. Setterberg
Assistant Criminal District Attorney
Fannin County, Texas
Micah Belden
711 N. Travis
Sherman, Texas 75090
ATTORNEY FOR APPELLANT
16