ACCEPTED
12-15-00131-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
8/31/2015 11:36:16 PM
CATHY LUSK
CLERK
Cause No. 12-15-00131-CR
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
In the Court of Appeals for the
8/31/2015 11:36:16 PM
Twelfth Judicial District at Tyler, Texas CATHY S. LUSK
Clerk
Eric Clark Allen,
Appellant
v.
State of Texas,
Appellee
On Appeal from Cause No. 2014-0063 in the 159th
Judicial District Court of Angelina County, Texas
State’s Brief
April Ayers-Perez
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
aperez@angelinacounty.net
Oral Argument Not Requested
Identity of Parties and Counsel
Eric Clark Allen, Appellant
TDCJ Number: 1998968
Byrd Unit
21 FM 247
Huntsville, Texas 77320
Jerry N. Whiteker
Attorney for Appellant (trial and appeal)
P.O. Box 1443
Lufkin, Texas 75902
SBN: 21361500
Art Bauereiss
District Attorney
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 01921800
April Ayers-Perez
Assistant District Attorney
Attorney for the State (appeal)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 24090975
ii
Table of Contents
Identity of Parties and Counsel ................................................................... ii
Table of Contents .......................................................................................iii
Index of Authorities .................................................................................... iv
Statement Regarding Oral Argument .......................................................... v
Issue Presented .......................................................................................... v
Statement of Facts ...................................................................................... 1
Summary of the Argument .......................................................................... 4
Argument .................................................................................................... 4
Reply Issue #1: The evidence is sufficient to sustain the trial
court’s denial of the Appellant’s Motion to Suppress, because
law enforcement was granted consent to search the Appellant’s
cell phone. ......................................................................................... 4
Applicable law........................................................................... 5
Standard of review .................................................................... 6
The Totality of the Circumstances Favor Voluntary
Consent ................................................................................... 7
Prayer ....................................................................................................... 10
Certificate of Compliance .......................................................................... 11
Certificate of Service ................................................................................. 11
iii
Index of Authorities
Cases Page
Boyle v. State, 820 S.W.3d 549 (Tex.Crim.App. 1989) ............................... 6
Harrison v. State, 205 S.W.3d 549 (Tex.Crim.App. 2006) ........................... 6
Juarez v. State, 758 S.W.2d 772 (Tex.Crim.App. 1998) .............................. 6
Maryland v. Macon, 472 U.S. 463 (1985) .................................................... 6
Meekins v. State, 340 S.W.3d 454 (Tex.Crim.App. 2011) ........................... 6
State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App. 2006)............................. 5, 6
United States v. Pena, 143 F.3d 1363 (10th Cir. 1998) ............................... 7
Rules
Tex. R. App. P. 9.4(i)(1) ............................................................................ 11
Tex. R. App. P. 39.1 .................................................................................. vi
Statutes
U.S. CONST., AMEND. IV .............................................................................. 5
Tex. Const. Art. I, Sec. 9 ............................................................................ 5
Tex. Pen. Code Ann. § 43.26 (West 2011) ................................................. 5
iv
Statement Regarding Oral Argument
Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is
unnecessary, as the facts and legal arguments are adequately presented in
the briefs and record and the decisional process would not be significantly
aided by oral argument.
Issue Presented
Reply Issue #1: The evidence is sufficient to sustain the trial court’s
denial of the Appellant’s Motion to Suppress, because law enforcement
was granted consent to search the Appellant’s cell phone.
v
Statement of Facts
On December 3, 2013 Officer Mike Jenkins with the Huntington
Independent School District was working security at the Huntington High
School basketball game in Angelina County, Texas.1 The appellant, Eric
Clark Allen, was at the gymnasium where the game was being held seated
in the student section.2 Officer Jenkins recognized the appellant because
the night prior to this game, on December 2, 2013, a security officer and
coach from the middle school basketball game had given the appellant a
criminal trespass and instructed him not to come back on school property.3
The appellant had been accused of taking inappropriate pictures of the
cheerleaders and students during the middle school basketball game on
December 2, 2013.4 During the basketball game Officer Jenkins noticed
the appellant had his cell phone out and was behaving oddly and
inconsistently with the other attendees.5 After the game, and the majority
of the crowd left the gymnasium, the appellant proceeded to go to the area
of the gymnasium where the cheerleaders and other students were
1
II R.R. 11-13.
2
Id. at 13-14.
3
Id. at 13-14, 26.
4
Id. at 13-14.
5
Id. at 15-16.
1
gathered.6 Officer Jenkins then approached the appellant and asked to
speak to him outside.7 Officer Jenkins and the appellant sat in the driver’s
seat and passenger seat of the patrol car to talk because of the number of
people who were coming and going from the game.8 At no time was the
appellant ever placed under arrest nor was anything done to keep Allen
from ending the encounter.9 Officer Jenkins explained to the appellant that
he wanted to see his phone to see if he took any inappropriate pictures of
students, at which point the appellant gave Officer Jenkins consent to look
through his phone.10 Further, Officer Jenkins explained to the appellant
that he had a right to revoke his consent to search the phone at any time,
which the appellant did not ever revoke.11 While looking through the
appellant’s phone Officer Jenkins came across images that were obvious to
him to be child pornography, and at that point discontinued his search of
the phone and obtained a search warrant for the phone.12 Officer Jenkins
then explained to the appellant that he saw something inappropriate and
potentially criminal in nature on the phone and would be seizing his phone,
6
Id. at 16.
7
Id.
8
Id. at 17, 32-33 (“A. I took him out of respect for him because I was going to ask him
some stuff that I felt would be sensitive to him.”
9
Id.
10
Id. at 17-18.
11
Id. at 38-39.
12
Id. at 18.
2
due to fear of the phone being destroyed and of the appellant getting rid of
the evidence13, and placing it in to evidence.14 Officer Jenkins did not look
through the remainder of the phone until getting a search warrant, at which
point he took the phone to the Lufkin Police Department to be analyzed.15
After the Lufkin Police Department searched the appellant’s phone
and determined there was child pornography on it, Officer Mike Jones with
the Huntington Independent School District Police Department spoke to the
appellant and asked for consent to search his residence for any other child
pornography images.16 Officer Jones recorded the conversation between
himself and the appellant17 in which the appellant spoke to Officer Jones
freely and voluntarily, was not promised anything, and consented to a
search of his residence.18 However, upon arriving at the appellant’s
residence, the appellant’s father denied consent to Officer Jones and
Officer Jenkins, at which point they left the residence and obtained a
warrant.19 That same day, Investigator Jamie Jenkins with the Lufkin
Police Department, interviewed the appellant at the Angelina County
13
Id. at 20-21.
14
Id.
15
Id. at 21-22.
16
Id. at 42, 48-49.
17
State’s Exhibit No. 2.
18
II R.R. at 50-51.
19
Id. at 54-55.
3
Sheriff’s Department after the appellant had been arrested.20 After reading
the appellant’s Miranda rights to him, and having the appellant not only
verbally indicate that he understood each right, but also initial each line, the
appellant waived all his rights and freely and voluntarily spoke to law
enforcement.21
Summary of the Argument
Upon being asked by a law enforcement officer to look through his
cell phone, the appellant voluntarily gave his cell phone to the law
enforcement officer to look through. The totality of the circumstances show
that the appellant was aware that he was voluntarily consenting to the
search. In the light most favorable to the trial court’s ruling, the appellant
voluntarily consented to the search of his cell phone.
Argument
Reply Issue #1: The evidence is sufficient to sustain the trial court’s
denial of the Appellant’s Motion to Suppress, because law enforcement
was granted consent to search the Appellant’s cell phone.
20
Id. at 56-57.
21
Id. See State’s Exhibit No. 4.
4
Applicable law
A person commits the offense of Possession or Promotion of Child
Pornography if, the person knowingly or intentionally possesses, or
knowingly or intentionally accesses with intent to view, visual material that
visually depicts a child younger than 18 years of age at the time the image
of the child who was made who is engaging in sexual conduct; and the
person knows that the material depicts the child as described.22
The Fourth Amendment of the United States Constitution is as follows:
The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures, shall not be
violated, and no warrant shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.23
Likewise, the Texas Constitution reads as follows:
The people shall be secure in their persons, houses, papers and
possessions, from all unreasonable seizures, and no warrant to
search any place, or to seize any person or thing, shall issue without
describing them as near as may be, nor without probable cause,
supported by oath or affirmation.24
22
Tex. Pen. Code Ann. § 43.26 (West 2011)
23
U.S. Const. amend. IV
24
Tex. Const. art. I §9.
5
Standard of review
A trial court’s ruling on a motion to suppress is reviewed in the light
most favorable to the trial court’s ruling.25 If the trial court has not
made explicit finds of fact the appellate court will imply facts findings
that will support the trial court’s ruling as long as the evidence will
support those implied findings.26 Voluntariness is such a fact
intensive question that the trial court’s finding will be accepted unless
it is clearly erroneous.27 Consent is an exception to the warrant
requirement and is valid when it is voluntarily given.28 The State must
prove the consent was obtained voluntarily by clear and convincing
evidence.29 The courts will determine whether or not consent was
voluntarily given, and not the result of duress or coercion, by a totality
of the circumstances.30 The courts will review the totality of the
circumstances of any particular interaction between law enforcement
and citizens from the point of view of the objectively reasonable
25
State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006).
26
Id. at 818-19.
27
Juarez v. State, 758 S.W.2d 772, 781 (Tex.Crim.App. 1998) overruled on other
grounds by Boyle v. State, 820 S.W.2d 122 (Tex.Crim.App. 1989).
28
Harrison v. State, 205 S.W.3d 549, 552 (Tex.Crim.App. 2006).
29
Id.
30
Id.
6
person, without regard for the subjective intents or thoughts of either
the citizen or law enforcement.31
The Totality of the Circumstances Favor Voluntary Consent
Some of the factors to be considered in determining the voluntariness
of consent are: physical maltreatment, use of violence, threats, threats of
violence, promises or inducements, deception or trickery, and the physical
and mental capacity of the defendant.32 The appellant testified, and the
sole point of contention in this matter, that Officer Jenkins told him that if
the appellant did not give Officer Jenkins his cell phone Officer Jenkins
would take him to jail.33 Meanwhile, Officer Jenkins unequivocally states
that he did not threaten to arrest the appellant if the appellant would not
give over his phone.34 In fact, despite the consent that had been granted to
Officer Jenkins by the appellant to search his phone, Officer Jenkins
stopped the search in order to obtain a search warrant once he found
illegal activity.35 Officer Jenkins did not have to obtain a search warrant at
31
Meekins v. State, 340 S.W.3d 454, 459 (Tex.Crim.App. 2011) (quoting Maryland v.
Macon, 472 U.S. 463, 470-71 (1985)).
32
United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998).
33
II R.R. at 8.
34
Id. at 19-20.
35
Id. at 22.
7
that point, he had already been granted consent, however he chose to
pursue a course that provided more protection for the appellant.36
At no point does the appellant allege any sort of physical
maltreatment, use of violence, threats of violence, promises or
inducements, or deception or trickery. The only circumstance which the
appellant alleges is a threat of being arrested if the cell phone is not
handed over, which Officer Jenkins categorically denies. The trial court, in
their discretion to determine voluntariness, weighed the testimony of Officer
Jenkins more favorably than the limited testimony of the appellant, by
denying the appellant’s motion to suppress. Furthermore, the appellant’s
voluntariness of consent can be determined based on the appellant’s
actions during the course of his time with Officer Jenkins and Officer Jones.
At no point did the appellant walk away. The appellant did not refuse to
hand over his cell phone. Officer Jenkins explained that he could revoke
consent and Allen still handed over his cell phone. At no point was the
appellant threatened, coerced, or forced into giving his cell phone. Further,
the appellant developed a history of cooperating with law enforcement, as
the appellant voluntarily consented to have a conversation with Officer
Jones the day after the cell phone was searched, and even agreed, on
36
Id. at 68-70.
8
video, to allow a search of his residence. When the appellant’s father did
not allow a search of the residence the law enforcement officers
acquiesced to that and retrieved a warrant. At the first sign of the lack of
voluntary consent of somebody in the equation law enforcement shut
everything down and got a warrant.
Dr. Jean Stanley, a licensed mental health specialist, testified at the
adjudication hearing as to a forensic evaluation she completed on the
appellant.37 Although Dr. Stanely states the appellant has an IQ of 75,
which is below average.38 However, the appellant’s verbal IQ was an 86
which fell within the normal range.39 Dr. Stanley further notes that the
appellant is aware of his surroundings, who he is, where he is, and why he
is where he is.40 Neither Dr. Stanely nor the appellant ever denies that the
appellant had the mental capacity to understand what Officer Jenkins was
asking when he asked the appellant if he could look at his phone. The
totality of the circumstances for voluntariness of consent weighs heavily in
the State’s favor. An objectively reasonable person would know that they
were voluntarily consenting to hand over their phone, and not acting under
coercion or duress.
37
III R.R. at 10-12.
38
Id. at 18-19.
39
Id. at 18.
40
Id.
9
This is not the case of an appellant being stumped by law
enforcement. This is the case of an appellant who chose to cooperate with
law enforcement every step of the way, as demonstrated on audio and
video, and consent to the search of his cell phone, consent to a
conversation, and consent to the search of his residence. The appellant
cannot then turn around, when facing a substantial sentence, and turn back
time to no longer consent. Consent is decided objectively in the moment
based on voluntariness, and the appellant chose to voluntarily consent to
law enforcement multiple times over the course of 48 hours.
Prayer
The State of Texas prays that this Court of Appeals affirm the
judgment of the trial court.
10
Respectfully Submitted,
/s/ April Ayers-Perez
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
ATTORNEY FOR THE
STATE OF TEXAS
Certificate of Compliance
I certify that this document contains 1,969 words, counting all parts
of the document except those excluded by Tex. R. App. P. 9.4(i)(1). The
body text is in 14 point font, and the footnote text is in 12 point font.
/s/ April Ayers-Perez
Certificate of Service
I certify that on August 31, 2015, a true and correct copy of the above
document has been forwarded to Jerry Whiteker, P.O. Box 1443, Lufkin,
TX 75902, by electronic service through efile.txcourts.gov.
/s/ April Ayers-Perez
11