ACCEPTED
01-15-00054-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
No. 01-15-00053-CR
9/30/2015 1:18:23 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00054-CR
In the
FILED IN
Court of Appeals 1st COURT OF APPEALS
HOUSTON, TEXAS
For the
9/30/2015 1:18:23 PM
First District of Texas CHRISTOPHER A. PRINE
At Houston Clerk
♦
Nos. 1410122 & 1410123
In the 174th Criminal District Court
Of Harris County, Texas
♦
DAMIEN SCOTT
Appellant
V.
THE STATE OF TEXAS
Appellee
♦
STATE’S APPELLATE BRIEF
♦
DEVON ANDERSON
District Attorney
Harris County, Texas
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
GRETCHEN FLADER
Assistant District Attorney
Harris County, Texas
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713·755·5826
ORAL ARGUMENT NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State does not
request oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Counsel for the State:
Devon Anderson District Attorney of Harris County
Bridget Holloway Assistant District Attorney on appeal
Gretchen Flader Assistant District Attorney at trial
Appellant or criminal defendant:
Damien Scott
Counsel for Appellant:
Paul St. John Attorney at trial
Melissa Martin —Assistant Public Defender on appeal
Trial Judge:
Honorable Ruben Guerrero Presiding Judge
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
IDENTIFICATION OF THE PARTIES ................................................................................ 1
TABLE OF CONTENTS........................................................................................................... 2
INDEX OF AUTHORITIES .................................................................................................... 3
STATEMENT OF THE CASE ................................................................................................ 5
STATEMENT OF FACTS ....................................................................................................... 5
SUMMARY OF THE ARGUMENT ..................................................................................... 6
Because appellant’s statement was not the product of custodial
interrogation, appellant’s counsel was not ineffective for failing to
move to suppress his statement.
REPLY TO APPELLANT’S SOLE ISSUE PRESENTED .................................................. 6
Applicable Authority ............................................................................................................. 6
Analysis ..................................................................................................................................... 8
CONCLUSION .........................................................................................................................12
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ........................ 13
2
INDEX OF AUTHORITIES
CASES
Amores v. State,
816 S.W.2d 407 (Tex. Crim. App. 1991) ........................................................................... 9
Berkemer v. McCarty,
468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)...................................................... 8
Bone v. State,
77 S.W.3d 828 (Tex. Crim. App. 2002)............................................................................ 7
Bridge v. State,
726 S.W.2d 558 (Tex. Crim. App. 1986) .......................................................................... 7
Curtis v. State,
238 S.W.3d 376 (Tex. Crim. App. 2007).......................................................................... 9
Ex parte White,
160 S.W.3d 46 (Tex. Crim. App. 2004) .......................................................................... 11
Ford v. State,
158 S.W.3d 488 (Tex. Crim. App. 2005) ......................................................................... 9
Francis v. State,
922 S.W.2d 176 (Tex. Crim. App. 1996) .......................................................................... 8
Godwin v. State,
899 S.W.2d 387
(Tex. App. —Houston [14th Dist.] 1995, pet. ref’d) .................................................... 11
Jackson v. State,
973 S.W.2d 954 (Tex. Crim. App. 1998)........................................................................ 12
McFarland v. State,
928 S.W.2d 482 (Tex. Crim. App. 1996) ......................................................................... 8
3
Parker v. State,
710 S.W.2d 146
(Tex. App. —Houston [14th Dist.] 1986, no pet.)....................................................... 10
Stansbury v. California,
511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) .................................................... 10
State v. Garcia,
25 S.W.3d 908
(Tex. App. —Houston [14th Dist.] 2000, no pet.)........................................................ 8
State v. Sheppard,
271 S.W.3d 281 (Tex. Crim. App. 2008) .......................................................................... 9
Strickland v. Washington,
466 U.S. 668 (1984).......................................................................................................6, 7, 8
Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999) .......................................................................... 6, 7
Turner v. State,
252 S.W.3d 571
(Tex. App. —Houston [14th Dist.] 2008, pet. ref’d) .................................................. 10
RULES
TEX. R. APP. P. 38.2(a)(1)(A) .....................................................................................................1
TEX. R. APP. P. 39.1 .......................................................................................................................1
TEX. R. APP. P. 9.4(g) ..................................................................................................................1
4
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant, Damien Scott, was charged with felon in possession of a weapon
and evading arrest. (CR122 at 13; CR123 at 12). Appellant entered pleas of guilty
to both charges after the trial court denied his motion to suppress. (RRII at 59,
79). The trial court later sentenced appellant to confinement for 4 years for
evading arrest and 6 years for felon in possession of a weapon, to run concurrently.
(RRII at 105). Written notices of appeal were timely filed. (CR122 at 109; CR123
at 79).
♦
STATEMENT OF FACTS
Officers patrolling a high crime area of Houston at night saw appellant
riding his bike down the middle of a street, weaving back and forth, and without a
light. (RRII at 22-25, 45-47). The officers stopped appellant and asked for
identification. They also asked him if he had anything illegal on him and appellant
replied, “a crack pipe.” (RRII at 26, 48-49). After finding the crack pipe, and
while arresting him, the officers saw appellant also possessed a gun. (RRII at 28,
50). After obtaining the gun from appellant, he was able to take off running, but
was soon captured. (RRII at 28, 50, 69).
5
♦
SUMMARY OF THE ARGUMENT
Because appellant’s statement was not the product of custodial
interrogation, appellant’s counsel was not ineffective for failing to move to
suppress his statement.
♦
REPLY TO APPELLANT’S SOLE ISSUE PRESENTED
Appellant complains his trial counsel was ineffective for failing to attempt
to suppress his “crack pipe” statement because, he argues, it was the product of
custodial interrogation. Because appellant’s statement was not the product of
custodial interrogation, appellant’s counsel was not ineffective for failing to move
to suppress his statement.
APPLICABLE AUTHORITY
The adequacy of an attorney’s performance is reviewed under the standard
articulated in Strickland. See Strickland v. Washington, 466 U.S. 668, 686 (1984);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In order to prevail on a
claim of ineffective assistance of counsel, a defendant must show: (1) defense
6
counsel’s performance was deficient; and (2) the deficient performance prejudiced
the defense to such a degree that the defendant was deprived of a fair trial. Id.
The first prong of the Strickland standard requires the defendant to show
that counsel’s performance fell below an objective standard of reasonableness.
Thompson, 9 S.W.3d at 812. With regard to the second prong, the defendant must
show a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. Failure to make the
required showing of either deficient performance or sufficient prejudice defeats
the ineffectiveness claim. Id. at 813.
This does not mean that an accused is entitled to errorless or perfect
counsel; the appellate court examines the totality of the representation and the
particular circumstances of each case in evaluating the effectiveness of counsel. Id;
See Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). An appellate court
must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Strickland, 466 U.S. at 685. Under
normal circumstances, the record on direct appeal will not be sufficient to show
that counsel's representation was so deficient and so lacking in tactical or
strategic decision-making as to overcome the presumption that counsel's conduct
was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002).
7
It is the defendant’s burden to prove ineffective assistance of counsel by a
preponderance of the evidence. Strickland, 466 U.S. at 687. A claim of ineffective
assistance of counsel must be firmly supported by the record. McFarland v. State,
928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
ANALYSIS
Appellant argues that approaching him on his bike and immediately asking
him “if he had a crack pipe” amounted to custodial interrogation. 1 That is not the
law, however, nor is that what occurred according to the officers.
An investigative detention is a seizure, but is characterized by a lesser
amount of restraint on an individual. See Berkemer v. McCarty, 468 U.S. 420, 437–40,
104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Francis v. State, 922 S.W.2d 176, 178 (Tex.
Crim. App. 1996). An investigative detention occurs when an individual is
temporarily detained by law enforcement officials for purposes of an investigation.
State v. Garcia, 25 S.W.3d 908, 911 (Tex. App. —Houston [14th Dist.] 2000, no pet.)
(citing Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995)). To detain
an individual for investigatory purposes, i.e., without a warrant, a police officer
need only have a reasonable, articulable suspicion that the individual has been, or
soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex.
1
Appellant’s brief at 11.
8
Crim. App. 2005). This is an objective standard that disregards any subjective
intent of the officer making the stop, and therefore we consider only whether an
objective basis for the stop exists. Id. In making a determination as to the
existence of reasonable suspicion, the totality of the circumstances is considered.
Id. at 492–93.
An arrest, however, imposes a greater degree of restriction on an individual’s
freedom of movement than an investigatory detention. State v. Sheppard, 271 S.W.3d
281, 290 (Tex. Crim. App. 2008). Accordingly, an arrest must be justified by
probable cause as opposed to reasonable suspicion. Amores v. State, 816 S.W.2d 407,
411 (Tex. Crim. App. 1991).
To determine whether a detention is merely for investigatory purposes or
amounts to an arrest, Texas courts use a totality of the circumstances approach.
Sheppard, 271 S.W.3d at 291; Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App.
2007). In making this determination, courts are to consider:
[T]he amount of force displayed, the duration of a
detention, the efficiency of the investigative process and
whether it is conducted at the original location or the
person is transported to another location, the officer’s
expressed intent —that is, whether he told the detained
person that he was under arrest or was being detained
only for a temporary investigation, and any other
relevant factors.
Sheppard, 271 S.W.3d at 291.
9
Moreover, custody is not established during an investigative detention
simply because the suspect is not able to leave until the investigation is completed.
Parker v. State, 710 S.W.2d 146, 147 (Tex. App. —Houston [14th Dist.] 1986, no pet.);
see also Turner v. State, 252 S.W.3d 571, 580 (Tex. App. —Houston [14th Dist.] 2008,
pet. ref’d) (holding that suspect was not in custody when officer handcuffed him
for officer safety while transporting him to police station). An officer’s evolving
but unarticulated suspicions do not affect the objective circumstances of an
interrogation or interview. Stansbury v. California, 511 U.S. 318, 323–24, 114 S.Ct.
1526, 128 L.Ed.2d 293 (1994).
Appellant argues that he was subjected to custodial interrogation because
the officers told him to stop and shined a light on him. That, however, does not
turn the encounter into an arrest. Although appellant testified the officers
immediately patted him down, he also claims he was clean and they found
nothing; yet, somehow, admittedly, they later found a gun in his waistband. (RRII
at 18-20). The officers testified they pulled him over for Class C violations (to
which appellant admits he committed) and “were simply talking to him” at the
point they asked him if he had anything illegal on him. (RRII at 15, 29, 46-49).
The only manifestation of probable cause occurred after the officers asked
appellant if he had anything illegal on him and appellant responded, “a crack pipe,”
10
and then a crack pipe was located in his possession. Consequently, appellant was
placed under arrest and handcuffed.
Appellant’s manifestation of probable cause through his statement
combined with his physical restraint from the handcuffs would lead a reasonable
person to believe that he was under restraint to the degree associated with an
arrest. It was at that time of his arrest that appellant’s investigative detention
evolved into custody.
Because appellant was not in custody when he made the statement, Article
38.22 did not require it to be recorded or suppressed. Appellant’s counsel cannot
be found ineffective for failing to object to admissible testimony. See Ex parte White,
160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (holding counsel not ineffective for
failing to object to admissible testimony); see also Godwin v. State, 899 S.W.2d 387,
391 (Tex. App. —Houston [14th Dist.] 1995, pet. ref’d) (appellant’s counsel was
not ineffective for failing to obtain a ruling or a hearing on a motion to suppress
evidence that is clearly admissible). Appellant must show that a motion to
suppress would have been successful in order to show that his attorney did not
provide reasonable professional assistance.2 See Jackson v. State, 973 S.W.2d 954, 957
2
Moreover, appellant’s counsel filed a Motion to Suppress the “fruits of [appellant’s]
arrest and detention” pursuant to Article 38.23. Appellant’s claims on appeal do not
mention Article 38.23 and appear to be focused on suppressing only his statement under
Article 38.22.
11
(Tex. Crim. App. 1998). Appellant’s sole issue presented on appeal should be
overruled
♦
CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
12
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE
This is to certify: (a) that the word count of the computer program used to
prepare this document reports that there are 2138 words in the document; and (b)
that the undersigned attorney requested that a copy of this document be served to
appellant’s attorneys via TexFile at the following emails on September 30, 2015:
Melissa Martin
Assistant Public Defender
Email: melissa.martin@pdo.hctx.net
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
13
Damian Scott v. State
Combined Opinion