Miko Deyond Parks v. State ( 2015 )

ACCEPTED
12-15-00043-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/15/2015 5:23:59 PM
CATHY LUSK
CLERK
NO. 12-15-00043-CR
RECEIVED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS TYLER, TEXAS
7/15/2015 5:23:59 PM
FOR THE TWELTH SUPREME JUDICIAL DISTRICTCATHY S. LUSK
Clerk
AT TYLER, TEXAS
CAUSE NUMBER 2014-0129
IN THE 159TH DISTRICT COURT 7/15/2015
7/15/2015
IN ANGELINA COUNTY, TEXAS
MIKO PARKS, APPELLANT
vs.
THE STATE OF TEXAS APPELLEE
APPELLANT’S BRIEF
T. RYAN DEATON
TBC # 24007095
103 E. Denman
Lufkin, Texas 75901
(936) 637-7778
Attorneys for Appellant
Appellant respectfully requests oral argument in this case.
NO. 12-15-00043-CR
IN THE COURT OF APPEALS
FOR THE TWELTH SUPREME JUDICIAL DISTRICT
AT TYLER, TEXAS
CAUSE NUMBER 2014-0129
IN THE 159TH DISTRICT COURT
IN ANGELINA COUNTY, TEXAS
MIKO PARKS, APPELLANT
vs.
THE STATE OF TEXAS APPELLEE
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW Appellant, Miko Parks, Appellant in the above styled
and numbered cause, by and through his attorneys of record, and respectfully
submits this, his Brief, pursuant to the rules of Appellate Procedure.
i
CERTIFICATE OF INTERESTED PARTIES
The following is a list of the parties to this action and their counsel
and is provided to assist this Court with possible disqualifications or recusal:
HONORABLE Paul White, presided at trial
T. Ryan Deaton, represented Appellant at trial
Katrina Carswell, represented the State at trial
T. Ryan Deaton, represents Appellant on Appeal
April Ayers-Perez, Angelina County District Attorney’s Office, represents
the state on appeal
Address for Appellate counsel is 103 E. Denman, Lufkin, Texas 75901
Mailing address for State counsel is P.O. Box 908, Lufkin, Texas 75902-
0908
ii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES .............................................. ii
TABLE OF CONTENTS............................................................................... iii
INDEX OF AUTHORITIES ......................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT .................................. vii
STATEMENT OF PROCEDURAL HISTORY ........................................ viii
ISSUES PRESENTED .................................................................................. ix
I. Was it error by the trial court to deny appellant’s
motion to suppress evidence because the initial entry
into appellant’s residence was done without consent
or under exigent circumstances?
STATEMENT OF FACTS .............................................................................x
SUMMARY OF THE ARGUMENT .......................................................... xiii
GROUND FOR REVIEW NO. ONE ..............................................................1
PRAYER ....................................................................................................... 11
CERTIFICATE OF SERVICE ..................................................................... 12
iii
INDEX OF AUTHORITIES
I. CASE AUTHORITIES
Texas Court of Criminal Appeals
Brick v. State, 738, S.W.2d 676, 680-81 (Tex. Crim. App. 1987) ............... 10
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) .................2
Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) ..... 1, 5, 6, 7
Juarez v. State, 758 S.W.2d 772, 775 (Tex. Crim. App. 1988) ......................3
Leal v. State, 773 S.W.2d 296,297 (Tex. Crim. App. 1989) ...........................9
Maxwell v. State, 73 S.W.3d 278 (Tex. Crim. App. 2002)......................... 2, 4
Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985) .......................3
McNairy v. State, 835 S.W.2d 101, 106
(Tex. Crim. App. 1991) .........................................................................2
Reasor v. State, 12 S.W.3d 813, 815 (Tex. Crim. App. 2000) ........................2
State v. Ross, 32 S.W. 3d 853,855 (Tex. Crim. App. 2000) ............................2
Turrubiate v. State, 399 S.W.3d 147
(Tex. Crim. App. 2013) ....................................................... 1, 4, 6, 7, 9
Villarreal v. State, 935 S.W.2d 134, 138
(Tex. Crim. App. 1996) .........................................................................2
Texas Court of Appeals
Corea v. State, 52 S.W.3d 311
(Tex. App. — Houston [1st Dist.] 2001, pet. ref’d) ........................................3
iv
Pace v. State, 318 S.W.3d 526, 533
(Tex. App. – Beaumont 2010, no pet.) ............................................ 7, 9
Rhodes v. State, 913 S.W.2d 242, 249
(Tex. App. – Fort Worth 1995), aff’d, 945 S.W.2d 115
(Tex. Crim. App. 1997) .........................................................................7
State v. Bagby, 119 S.W.3e 446, 450
(Tex. App. – Tyler 2003, no pet) .......................................................... 2, 9, 11
United States Court of Appeals
United States v. Jones, 239 F.3d 716, 721 (5th circ. 2001) ....................... 7, 8
United States v. Richard, 994 F.2d 244 (5th circ. 1993) .................................7
United States v. Vega, 221 F.3d 789, 798(5th Circ. 2000) ..............................7
United States v. Gomez-Moreno, 479 F.3d 350, 355
(5th Circ. 207) ................................................................................... 7,8
United States v. Jones, 239 F,3d 716, 720 (5th Circ. 2001) ...........................7
United States Supreme Court
Bumper v. North Carolina, 391 U.S. 543, 548 (1968) ....................................3
Ohio v. Robinette, 519 U.S. 33, 40 (1996) ......................................................2
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) ..................................2
II. RULES & STATUTES
Texas Rules & Statutes
U.S. CONST., Amend. 4 ....................................................................................1
v
TEX. CONST., Art. I, § 9 ............................................................................... 1,2
Tex. R. App. P. 26.21 ...................................................................................... i
vi
STATEMENT REGARDING ORAL ARGUMENT
Appellant respectfully requests oral argument in this case.
vii
STATEMENT OF PROCEDURAL HISTORY
On March 6, 2014, Miko Parks was charged by indictment with one
count of Possession of Marijuana and one count of Possession of Substance
in Penalty Group 1. CR 12. The defendant filed a Motion to Suppress on
April 21, 2014. CR 17. A hearing on Motion to Suppress was held on April
29, 2014, and continuing on May 27, 2014. On June 6, 2014, the court
signed an order denying the Motion to Suppress. CR 36. On December 2,
2014, the defendant pled guilty to both counts. CR 42. On January 30, 2015,
the Honorable Paul White sentenced the defendant to one hundred nineteen
(119) months confinement in the Institutional Division, TDCJ on count one
and ten (10) years deferred adjudication on count two. CR 47. On February
2, 2015, Parks timely filed his written Notice of Appeal as required by Tex.
R. App. P. 26.21. CR 52. This brief is due on July 15, 2015, after two duly
granted extension.
viii
ISSUE PRESENTED
ISSUE ONE
IT WAS ERROR BY THE TRIAL COURT TO DENY APPELLANT’S
MOTION TO SUPPRESS EVIDENCE BECAUSE THE INITIAL ENTRY
INTO APPELLANT’S RESIDENCE WAS DONE WITHOUT CONSENT
OR UNDER EXIGENT CIRCUMSTANCES AND ANY SUBSEQUENT
CONSENT WAS TAINTED BY THE UNLAWFUL ENTRY.
ix
STATEMENT OF FACTS
Prior to July 31, 2014, members of the Texas Department of Public
Safety received information concerning the trafficking of marijuana from
3507 N. John Redditt Drive, Apartment 52, Lufkin, Texas. 2 RR 10.
The agents decided to make contact with the resident of the apartment
to discuss that information, a procedure known as a “knock and talk”. 2 RR
15. The agents did not have a search or arrest warrant. 2 RR 17.
At approximately 11:00 a.m. on the morning of July 31, 2014, Agents
Shroeder, Holland, and Cortines arrived at the High Point Apartments, 3507
N. John Redditt Drive, Apartment 52. Officer Shroeder, who was in plain
clothes, walked up a flight of stairs and knocked on the door. 2 RR 14. The
other agents were wearing police-type uniforms and raid gear with exposed
badges and waited downstairs. 2 RR 15.
The agents had a preplanned signal that when the door was opened,
the police officers who were in police-type uniforms waiting at the bottom
of the stairs were to come up the stairs. 2 RR 63. The defendant, who is
6’2” and 300 pounds, opened the door twelve to eighteen inches. 3 RR 8.
The officer could not have seen anything within the apartment. 3 RR 8. The
officer then stated I smell marijuana, so you need to get back, and all three
of the officers entered the apartment. 3 RR 9.
x
At the hearing on the Motion to Suppress, Agent Schroeder testified
that there was no other basis for the agents to enter the apartment other than
their belief that the defendant gave valid consent to enter the apartment. 2
RR 92. Agent Shroeder also states that the agents entered the residence by
consent but could not recall the conversation that led him to believe that the
defendant consented for the agents to enter the apartment. 2 RR 90.
Although the defendant had the right to consent because he resided there
three or four nights out of the week and kept his belongings in the apartment
( 3 RR 6), the defendant states that the agents never asked for permission to
come into the apartment. 3 RR 10.
Two days after the arrests Agent Shroeder completed an affidavit in
which he indicated that he “smelled marijuana” and “observed a Smith &
Wesson .40 Caliber pistol positioned at the arm of the couch in the living
room within an arm’s reach of the female who was identified as Magin Cne
Watts” and also that “investigators entered the residence and secured the
firearm on the couch.” Nothing in Agent Shroeder’s affidavit mentioned
that the agents entered the house by consent. 2 RR 67-68.
The agents later obtained search warrants regarding some telephones
taken from the residence. An affidavit was made for that search warrant as
xi
well. The agents never mentioned anything in that affidavit about entering
the house by consent. 2 RR 88.
xii
SUMMARY OF THE ARGUMENT
In examining all of the evidence submitted by the state and all of the
evidence offered by the defendant at the hearing on Motion to Suppress, the
state did not prove that the initial entry into Appellant’s residence was done
with consent.
xiii
ISSUE NO. 1
IT WAS ERROR BY THE TRIAL COURT TO DENY APPELLANT’S MOTION
TO SUPPRESS EVIDENCE BECAUSE THE INITIAL ENTRY INTO
APPELLANT’S RESIDENCE WAS DONE WITHOUT CONSENT OR UNDER
EXIGENT CIRCUMSTANCES AND ANY SUBSEQUENT CONSENT WAS
TAINTED BY THE UNLAWFUL ENTRY.
A. Consent to Enter the Residence
The Fourth Amendment of the United States Constitution provides:
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.
U.S. CONST., Amend. 4. The Texas Constitution equivalent, Article I, Section 9,
provides:
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.
TEX. CONST., Art. I, § 9. “A warrantless entry into a residence is presumptively
unreasonable.” Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013)
(citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007)). The two
available avenues to justify a warrantless search are, first, if valid consent to search
has been obtained and, second, if probable cause is present at the time of the search
and exigent circumstances make obtaining a warrant impracticable. State v.
1
Bagby, 119 S.W.3d 446, 450 (Tex. App.—Tyler 2003, no pet.) (citing McNairy v.
State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991); Reasor v. State, 12 S.W.3d
813, 815 (Tex. Crim. App. 2000)). A trial court’s ruling on a motion to suppress is
reviewed for abuse of discretion through application of a bifurcated standard of
review. Id. at 449 (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.
App. 1996); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)).
Almost total deference is given to the trial court’s determination of historical facts
while the trial court’s application of the law to those facts is reviewed de novo. Id.
(citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)). When
no findings of fact are filed by the trial court, the evidence is reviewed in a light
most favorable to the ruling with the assumption the trial court made implicit
findings of fact. Id. (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000)). These implied findings of fact must be supported by the record. Id.
“Consent to search is one of the well-established exceptions to the
constitutional requirements of both probable cause and a warrant.” Maxwell v.
State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973)). Validity of consent is a fact question
determined by all the circumstances. Id. (citing Ohio v. Robinette, 519 U.S. 33, 40
(1996)). The state must prove the validity of consent to search by a preponderance
of the evidence under the federal constitution and by clear and convincing
2
evidence under the Texas Constitution. Id. The State must show, by clear and
convincing evidence, that the consent was given freely and voluntarily; positively
and unequivocally; and not under duress or coercion. Corea v. State, 52 S.W.3d
311, 316 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (citing Bumper v. North
Carolina, 391 U.S. 543,548 (1968); Juarez v. State, 758 S.W.2d 772, 775 (Tex.
Crim. App. 1988)). Acquiescence to a claim of lawful authority cannot discharge
this burden. Id. Consent to search cannot be lightly inferred. Meeks v. State, 692
S.W.2d 504, 509 (Tex. Crim. App. 1985); accord Corea, 52 S.W.3d at 316.
Mr. Parks testified that he lived at the apartment located at 3507 North John
Redditt, Apartment 52, Lufkin, Texas, three or four nights out of the week. He
further testified that he kept his clothing and belongings in the apartment. RR Vol
3 at 6. Although Mr. Parks’ testimony establishes his ability to give consent for
the agents to enter the apartment, nowhere in the record before the court can clear
and convincing evidence be found that indicates Mr. Parks freely, voluntarily,
positively, and unequivocally gave consent for Agents Shroeder, Cortinez, and
Holland to enter the apartment without a warrant. The only evidence provided by
the State was Agent Shroeder’s testimony regarding “a discussion” of which he
can’t recall any words or phrases used, R.R. Vol 2 at 27, only that they were
“allowed to come in.” Id. at 29. Nowhere during the his testimony does Agent
Shroeder provide any words or phrases that Mr. Parks used to freely, voluntarily,
3
positively, or unequivocally give consent to enter the apartment, but instead
repeatedly admits he cannot give the exact words and that he never summarized
any of the consents or conversations in any affidavits. Id. at 27; 29; 70–71; 88–90.
Further, none of Agent Shroeder’s testimony regarding the consent was able to be
corroborated by any other individual. See id. at 119–20 (Agent Holland admitting
to not hearing the initial conversation at the door); R.R. Vol. 3 at 10–11; 13 (Mr.
Parks testifying that Agent Shroeder never asked permission to enter and was
never granted permission to enter); R.R. Vol. 3 at 37–38 (Ms. Watts testifying that
Mr. Parks never gave consent and she did not hear anyone ask permission to enter).
Agent Shroeder does however admit that his sole justification for entering the
residence was the alleged consent he received. R.R. Vol. 2 at 92–93. While Agent
Shroeder’s testimony may provide some scintilla of evidence of consent, it does
not reach the high clear and convincing standard that is required in Texas. See
Maxwell, 73 S.W.3d at 281.
B. Exigent Circumstances
Lacking consent, the agents must have had probable cause coupled with
exigent circumstances to justify entering Mr. Parks’ residence. See Turrubiate v.
State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013) (“the State has the burden of
showing that probable cause existed at the time the search was made and that
exigent circumstances requiring immediate entry made obtaining a warrant
4
impracticable.”). “Probable cause exists when reasonably trustworthy
circumstances within the knowledge of the police officer on the scene would lead
him to reasonably believe that evidence of a crime will be found.” Id. Once
probable cause exists, exigent circumstances may dictate immediate, warrantless
entry of a residence under three circumstances: (1) when officers are providing aid
to persons reasonably believed to be in need of it; (2) when officers are protecting
other officers from persons reasonably believed to be present, armed, and
dangerous; and (3) when officers are preventing the destruction of evidence or
contraband. Id. (citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.
2007)).
In the instant case, the existence of probable cause is not in dispute at the
time of the initial “knock” and was likely established just prior to the initial
“knock” based on Agent Shroeder’s detection of the odor of marijuana from
around the door prior to the “knock.” See R.R. Vol 2 at 84–85 (“I believed there
was a possibility of probable cause because I could smell marijuana in the area at
that point, not until the door opened did I realize it was coming from the
apartment.”). The State must still prove exigent circumstances existed at the time
of the initial entry. Only the second and third categories listed above have any
inkling of support in the record, but still fall short of justifying a warrantless entry
into Mr. Parks’ residence.
5
I. Odor of Marijuana
The prevention of destruction of evidence or contraband is one of the three
categories of exigent circumstances. Turrubiate, 399 S.W.3d at 151(citing
Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007)). It has been
conclusively established that the odor of marijuana coupled with an officer making
his presence known does not justify the warrantless entry of a residence on the
premise of preventing destruction of evidence. Id. at 149 (“We agree with the
holding by the court of appeals that probable cause to believe that illegal drugs are
in a home coupled with an odor of marijuana from the home and a police officer
making his presence known to the occupants do not justify a warrantless entry.”).
Courts require additional evidence that indicates destruction of evidence was
imminent. Id. at 154.
Here, Agent Shoeder’s own testimony indicates that he perceived no
indication that Mr. Parks or Ms. Watts intended to destroy any evidence. R.R. Vol.
2 at 93. Further, Agent Shoeder affirmed that he believes his sole justification or
“authority to enter the residence rises or falls upon proof of a valid consent by Mr.
Parks” and not upon any imminent destruction of evidence. Id. at 92–93. Without
any additional evidence indicating destruction of evidence was imminent, the
warrantless entry into the residence was not justified. See Turrubiate, 399 S.W.3d
at 153 (“In other words, the Court required that the record show proof of imminent
6
destruction based on affirmative conduct by those in possession of narcotics in a
particular case.”).
II. Presence of Firearm
The protection of other officers from present, armed, and dangerous persons
is a second of the three categories of exigent circumstances. Turrubiate, 399
S.W.3d at 151(citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.
2007)). “The perspective of a reasonable officer on the scene is a consideration in
the analysis of the reasonableness of the governmental intrusion.” Pace v. State,
318 S.W.3d 526, 533 (Tex. App.—Beaumont 2010, no pet.) (citing Rhodes v.
State, 913 S.W.2d 242, 249 (Tex. App.—Fort Worth 1995), aff’d, 945 S.W.2d 115
(Tex. Crim. App. 1997)). Courts have distinguished between situation where
suspects detect law enforcement surveillance—and the exigent circumstances
exception applies—and situations where officers make their presences known—
and the exigent circumstances exception does not apply. United States v. Jones,
239 F.3d 716, 721 (5th Circ. 2001) (referring to United States v. Richard, 994 F.2d
244 (5th Circ. 1993)). The actions or inaction of the government cannot be the
cause of the exigent circumstances. Id. at 720 (citing United States v. Vega, 221
F.3d 789, 798 (5th Circ. 2000)). The “reasonableness of the officers’ investigative
tactics leading up to the warrantless entry” is used to determine whether the
officers created the exigency. United States v. Gomez-Moreno, 479 F.3d 350, 355
7
(5th Circ. 2007) (quoting United States v. Jones, 239 F.3d 716, 720 (5th Circ.
2001)). The “knock and talk” tactic has been considered reasonable where officers
approaching a house are not convinced criminal activity are taking place and have
no reason to believe the occupants are armed. Id.
In the instant case, Agent Shroeder testified that he knew Mr. Parks was a
licensed concealed handgun carrier and probably had a weapon with him. R.R.
Vol. 2 at 32, 93–94. Agent Shroeder further admits that at the time he carried out
the knock and talk, he believed he had enough information to secure a search
warrant, but instead proceeded with the knock and talk tactic because it was simple
“a faster and easier process.” Id. at 85–87. These two aspects are an affront to the
rational that Courts have used to justify the reasonableness of the “knock and talk”
tactic. See Gomez-Moreno, 479 F.3d at 355. Agent Shroeders own testimony
establishes that he felt probable cause that criminal activity was taking place
existed prior to performing the knock and talk procedure and further that he knew
Mr. Parks was probably armed; both of which indicate that any exigency was
created by government action. Id. The record also supports the conclusion that Mr.
Parks was completely unaware of any police surveillance or suspicion. R.R. Vol 2
at 34 (indicating Mr. Parks and Mrs. Watts acted surprised at the fact officers had
knocked on their door). Agent Shoeder could have chosen to secure a warrant
without ever alerting Mr. Parks or Ms. Watts to police presence but instead chose
8
to announce his presence and create potential exigent circumstances to gain entry
into the residence.
Even if the Court concludes probable cause did not exist prior to the knock
and talk procedure, the record does not reflect that Agent Shroeder believed the
firearm, which he expected to be found, posed a danger, and he further testified
that it played no part in his decision to enter the residence. R.R. Vol. 2 at 93. From
Agent Shroeder’s perspective as a reasonable officer on the scene, the presence of
the firearm did not pose a danger and did not create an exigency to justify entry
into the residence. See Pace, 318 S.W.3d at 533 (acknowledging that the
perspective of a reasonable officer on the scene is a primary consideration as to the
reasonableness of government action) ; see also Turrubiate, 399 S.W.3d at 151
(representing persons must be present, armed, and dangerous to create and
exigency related to officer safety (emphasis added)). These factors would further
indicate that the firearm present in Mr. Parks residence did not create an exigent
circumstance that would justify a warrantless entry into the apartment.
C. Subsequent Consent to Search not Attenuated from Unlawful Entry
When consent follows and illegal entry into a residence, the consent must be
analyzed to determine whether the consent was tainted by illegal police conduct.
Bagby, 119 S.W.3d at 452 (citing Leal v. State, 773 S.W.2d 296, 297 (Tex. Crim.
9
Ohio App. 1989). There are six factors Courts use to determine if consent is sufficiently
attenuated from the illegal conduct:
(1) the proximity of the consent to the arrest;
(2) whether the seizure brought about observation of the particular
object for which they sought consent to search, or, in other words,
whether the illegal arrest allowed officers to view the area or
contraband that the officers later received consent to search;
(3) whether the illegal seizure was flagrant police misconduct;
(4) whether the consent was volunteered rather than requested by the
detaining officers;
(5) whether the arrestee was made fully aware of the fact that he could
decline to consent and, thus, prevent an immediate search; and
(6) whether the police purpose underlying the illegality was to obtain
the consent.
Id. at 452–53 (citing Brick v. State, 738 S.W.2d 676, 680–81 (Tex. Crim. App.
1987)).
The majority of the above factors favor a finding that consent was tainted by
the illegal entry. The first factor is in Mr. Parks favor in that Ms. Watts gave
consent shortly after police illegally entered their residence. R.R. Vol 2 at 44. The
second factor again favors Mr. Parks in that the illegal entry into the apartment
10
resulted in officers seeing a quantity of marijuana and arresting both him and Ms.
Watts. Id. at R.R. Vol 2 at 297. The third factor also favors Mr. Parks in that the
agents entered Ms. Watts residence while she was in a state of undress and placed
her in handcuffs, removed her boyfriend, Mr. Parks, from the residence before
seeking her consent to search. R.R. Vol. 3 at 39–42. The illegal actions of the
agents were aimed to cause surprise and fear in Ms. Watts and cause the third
factor to favor Mr. Parks. See Bagby, 119 S.W.3d at 454. The fourth factor is in
favor of Mr. Parks. Mr. Shroeder acknowledged to seeking the consent from Ms.
Watts. R.R. Vol. 2 at 44. The fifth factor favors the State in that Agent Shroeder
testified to informing Ms. Watts that she could refuse consent. R.R. Vol. 2 at 100.
The sixth factor follows the same reasoning as the third factor and favors Mr.
Parks. See Bagby, 119 S.W.3d at 454 (finding factors that support the third factor
also support the sixth factor).
PRAYER
Wherefore, in accord with the facts, law, and argument offered above,
Appellant Miko Parks asks this Court to reverse his conviction and order a
dismissal of the charges, or, in the alternative, the suppression of all evidence
obtained after entry into the apartment or grant him other such relief as is
appropriate.
11
Respectfully submitted,
DEATON LAW FIRM
103 East Denman
Lufkin, TX 75901
Tel: (936) 637-7778
Fax: (936) 637-7784
By: _____________________________
T. Ryan Deaton
State Bar No. 24007095
Attorney for Miko Parks
CERTIFICATE OF SERVICE
This is to certify that on July 15, 2015, a true and correct copy of the above
and foregoing document was served on the District Attorney's Office, Angelina
County, Texas, by facsimile transmission.
_________________________________
T. Ryan Deaton
12