Larry Torres v. State ( 2015 )

ACCEPTED
14-15-00155-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/7/2015 2:17:45 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00155-CR
NO. 14-15-00156-CR
NO. 14-15-00157-CR FILED IN
14th COURT OF APPEALS
NO. 14-15-00158-CR HOUSTON, TEXAS
7/7/2015 2:17:45 PM
IN THE COURT OF APPEALS CHRISTOPHER A. PRINE
Clerk
FOURTEENTH DISTRICT
HOUSTON, TEXAS
NO. 1385626
NO. 1385627
IN THE TRIAL COURT
179TH JUDICIAL DISTRICT
HARRIS COUNTY, TEXAS
LARRY TORRES § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
BRIEF FOR APPELLANT
ALLEN C. ISBELL
2016 Main St., Suite 110
Houston, Texas 77002
713/236-1000
Fax: 713/236-1809
STATE BAR NO. 10431500
Email: allenisbell@sbcglobal.net
COUNSEL ON APPEAL
NAMES AND ADDRESSES OF ALL PARTIES
AT THE TRIAL COURT’S FINAL JUDGMENT
Trial Judge
Honorable Kristin M. Guiney, Judge Presiding
179th District Court
1201 Franklin, 18th Fl., Houston, Texas 77002
Appellant/Defendant
Mr. Larry Torres
#00898315
Polunsky Unit
3872 FM 350 S., Livingston, Texas 77351
Appellant’s Counsel
Mr. Allen C. Isbell - Counsel on Appeal
2016 Main St., Suite 110, Houston, Texas 77002
Mr. Jimmy J. Ortiz, Jr. - Counsel at Trial
1924 Portsmouth St., Houston, Texas 77002
Attorneys for the State of Texas
Mr. Alan Curry - Assistant District Attorney on Appeal
1201 Franklin, Ste. 600, Houston, Texas 77002
Ms. Andrea Koch - Assistant District Attorney at Trial
Ms. Kathy Kahle - Assistant District Attorney at Trial
1201 Franklin, 6th Fl., Houston, Texas 77002
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TABLE OF CONTENTS
PAGE
Names and Addresses of All Parties at the Trial Court’s Final Judgment
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of the Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts To Provide the Court The Context of This Appeal
.................................................1
Point of Error Number One
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION TO SUPPRESS THE TESTIMONY OF
DEPUTY SALAZAR REGARDING AN ORAL CONSENT TO SEARCH
THE VEHICLE BECAUSE IT WAS FRUIT OF AN ILLEGAL
DETENTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
Point of Error Number Two
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED
FROM THE LOCKED CONTAINER IN THE TRUNK OF HIS VEHICLE
BECAUSE IT WAS FRUIT OF AN ILLEGAL DETENTION. . . . . . . . 7
Point of Error Number Three
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION TO SUPPRESS THE TESTIMONY OF
DEPUTY BARRON AS TO APPELLANT’S ACTIONS WHEN THE
TRUNK OF HIS CAR WAS OPENED BECAUSE THIS TESTIMONY
WAS THE FRUIT OF AN ILLEGAL DETENTION. . . . . . . . . . . . . . . 7
Statement of Facts Points of Error Numbers One Through Three
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.................................................7
Summary of the Argument Points of Error One Through Three
.................................................8
Argument and Authorities Points of Error One Through Three
.................................................9
Point of Error Number Four
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO SUPPRESS BECAUSE THE RECORD
DOES NOT SUPPORT THE TRIAL COURT’S FINDING OF FACT
THAT OFFICER SALAZAR HAD PROBABLE CAUSE TO ARREST
APPELLANT FOR PUBLIC INTOXICATION. . . . . . . . . . . . . . . . . 11
Statement of Facts Point of Error Number Four . . . . . . . . . . . . . . . 11
Summary of the Argument Point of Error Number Four
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Argument and Authorities Point of Error Number Four
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Point of Error Number Five
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE BECAUSE
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING
EVIDENCE THAT THE “CONSENT” OBTAINED BY DEPUTY
SALAZAR WAS VOLUNTARY UNDER THE TOTALITY OF THE
CIRCUMSTANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Statement of Facts Point of Error Number Five . . . . . . . . . . . . . . . 19
Summary of the Argument Point of Error Number Five . . . . . . . . . . 23
Argument and Authorities Point of Error Number Five . . . . . . . . . . 24
Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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INDEX OF AUTHORITIES
CASES PAGE
Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Campbell v. State, 325 S.W.3d 223 (Tex. App. Fort Worth 2010, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Cardenas v. State, 857 S.W.2d 707, 710 (Tex.App. Houston [14th Dist] 1993,
pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Carmouche v. State, 10 S.W.3d 323, 327-328 (Tex.Crim.App. 2000)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Chilman v. State, 22 S.W.3d 50 (Tex.App. Houston [14th Dist.] 2000, pet. ref’d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Davis v. State, 313 S.W.3d 317, 336-339 (Tex.Crim.App. 2010)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Dickey v. State, 552 S.W.2d 467 (Tex.Crim.App. 1977)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Ibarra v. State, 953 S.W.2d 242, 245 (Tex.Crim.App. 1998)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Kolb v. State, 532 S.W.2d 87, 89 n.1 (Tex.Crim.App. 1976)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
McKenna v. State, 780 S.W.2d, 797,799 (Tex.Crim.App. 1989)
.....................................................6
Meekins v. State, 340 S.W.3d 454, 458-459 (Tex.Crim.App. 2011)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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Oursbourn v. State, 259 S.W.3rd 159 (Tex.Crim.App. 2008)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Paolilla v. State, 342 S.W.3d 783, 792-793 (Tex.App. Houston [14th Dist.]
2011, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Simpson v. State, 886 S.W.2d 449 (Tex.App. Houston [1st Dist.] 1994, pet.
ref’d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
State v. Kelly, 204 S.W.3d 808, 818-819 (Tex.Crim.App. 2006)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Wade v. State, 422 S.W.3d 661 (Tex.Crim.App. 2013)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11
Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
STATUTES
Texas Code of Criminal Procedure, Art. 38.22, Sec. 6. . . . . . . . . . . . . . . 25
Texas Code of Criminal Procedure, Art. 38.23(a) . . . . . . . . . . . . . . . . . . 24
Texas Penal Code, Sec. 42.08(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CONSTITUTIONS
Texas Constitution, Art. I, Sec. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States Constitution, Fourth Amendment . . . . . . . . . . . . . . . . . . . . 24
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is waived.
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TO THE HONORABLE COURT OF APPEALS:
COMES NOW LARRY TORRES, appellant, by and through his
appointed attorney of record, ALLEN C. ISBELL, and files this Brief in support
of his prayer for reversal of his conviction.
Statement of the Nature of the Case
This is an appeal arising from a conviction for Felon in Possession of a
Weapon in Cause No. 1385626 and Possession with Intent to Deliver a
Controlled Substance in Cause No. 1385627, in the 179th District Court of
Harris County, Texas, the Honorable Kristin M. Guiney, Judge Presiding. The
judge found appellant guilty. The judge sentenced appellant to fifteen (15)
years confinement in Cause No. 1385626 and twenty-five years confinement
in Cause No. 1385627, both sentences to run concurrently, in the Texas
Department of Criminal Justice, Institutional Division. No Motion for New Trial
was filed. Appellant gave written Notice of Appeal on February 12, 2015.
Statement of Facts
To Provide the Court The Context of This Appeal
A person called the police about a vehicle parked in front of the
residence at 16214 Sky Blue Lane, Houston, Harris County, Texas. Harris
County Sheriff Deputy Raymond Salazar was the first officer to arrive. He
arrived at 6:25 a.m. Harris County Sheriff Deputy Davis arrived at 6:28 a.m.
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and Harris County Sheriff Deputy Barron arrived at 6:38 a.m. (R.R. 2, 28).
Deputy Salazar approached the parked vehicle. The vehicle’s engine
was not running; the keys were not in the ignition. The driver’s door was ajar
about a foot. Appellant, was laying back in the driver’s seat asleep. His foot
was on the door frame crease. Within minutes Deputy Salazar and the other
deputies discovered that appellant was sleeping in his own vehicle, parked in
front of his own residence, and that the parked vehicle was registered to
appellant at that address. Deputy Barron confirmed that appellant resided at
that address (R.R. 2, 10, 23,28-29,69).
Deputy Salazar opened the driver’s door and shook appellant’s leg.
When appellant did not wake up, Deputy Salazar shook the leg harder.
Appellant started opening his eyes. Appellant was very groggy. Then,
Deputy Salazar and Deputy Davis shook appellant a bit more. Finally,
appellant woke up, still very groggy. Appellant shifted in the driver’s seat so
his feet were sticking out the driver’s side doorway (R.R. 2, 11-12).
Deputy Salazar questioned appellant. Appellant was only somewhat
responsive to the questions, meaning that appellant was groggy and
answered the questions slowly. Among the questions, Deputy Salazar asked
whether there was anything illegal in the vehicle. Appellant answered, “No.”
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Deputy Salazar noticed that appellant was looking down towards the driver’s
door pocket area as the deputy questioned him about anything illegal being
in the vehicle. Deputy Salazar found this suspicious. He had a “hunch” that
appellant had something illegal in the driver’s door pocket (R.R. 2, 12-14,46-
47).
Deputy Salazar told appellant to get out of appellant’s vehicle. Deputy
Salazar admitted that at the time he removed appellant from the vehicle, he
had not seen anything illegal going on, and he had seen nothing illegal in the
vehicle. Deputy Salazar testified that appellant was not free to leave after he
detained him by removing appellant from the vehicle (R.R. 2, 48,54).
Deputy Salazar did not ask appellant for his consent to search the
vehicle until he had detained appellant by removing him from the vehicle.
Deputy Salazar claims he asked appellant for this consent three times, and
that each time appellant said, “Yes.” Deputy Salazar took appellant to the
rear of the vehicle and told him to stand near the rear tire. Appellant complied
with Deputy Salazar’s order, but he kept falling asleep - even while standing
up (R.R. 2, 40). Deputy Salazar searched the driver side door pocket, where
he had seen appellant looking. But, nothing illegal was there. The deputies
searched the interior of the vehicle front and back. The deputies did not
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discover anything illegal (R.R. 2, 14, 16).
Deputy Barron arrived after the interior of the vehicle had been
searched. Deputy Barron went up to appellant, patted him down again.
During this pat down, Deputy Barron removed a set of keys from appellant’s
pocket. He handcuffed appellant’s hands behind his back because appellant
would not relax (R.R. 2, 17, 19). Meanwhile, Deputy Salazar had opened the
trunk. Inside the trunk was small hand-carried safe or lockbox. A key from
appellant’s pocket fit the lockbox. Opening the locked box, the deputies
discovered a handgun and controlled substances in the box (R.R. 2, 22, 67;
State’s Exhibits 3 and 4). Deputy Barron placed appellant in the his patrol
vehicle. Immediately, appellant fell asleep in the police vehicle. Appellant
slept all the way from the scene to the police station (R.R. 2, 67-69, 91-
92,109).
Deputy Barron went to the residence and got a written consent to search
the residence at 16214 Sky Blue Lane, signed by a person in the residence.
This written consent to search is a form that every Harris County Deputy
carries in the trunk of his patrol car. The deputies searched the residence, but
they discovered nothing illegal inside the residence (R.R. 2, 69, 96-98;
Defense Exhibit 3).
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Appellant testified that he did not remember giving consent to search his
vehicle because his memory was affected by severe sleep deprivation and his
need for sleep. However, he says that regardless of his physical or mental
condition, he would not have given consent to search the vehicle because he
knew what he had in the locked box inside the trunk of the vehicle. He knew
that what he had in that locked box could get him into serious trouble (R.R. 2,
107, 120-121). This is not appellant’s “first rodeo.”
Appellant’s counsel asked appellant about his mental condition at the
time Deputy Salazar asked him for consent to search his vehicle, and whether
that mental condition affected his understanding of what Deputy Salazar was
asking him. Appellant replied:
A. I hadn't slept in five days. I was out of it.
Q. And so, what happened next as you're on the trunk
and they're going through the car?
A. When they pulled me off the trunk, they started going
through the trunk. I'm, like, what are you guys doing, you know?
You guys need a warrant to get in there. And I came to only
because, granted, you know, I know what I got in the trunk, you
know. And I carry a lockbox for a reason and that's to make sure
if I ever got found in a situation like this, that they wouldn't get in
it without a warrant. I'm not going to let them just take me like
that. They say they got seasoned veterans as officers; well, you
know, I'm 46 years old and I've been in the game myself, you
know, for a while (R.R. 2, 108).
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On February 12, 2015, the trial court overruled appellant’s motion to
suppress and made the following findings of fact:
The Court will make the following findings: As Officer
Salazar approached the car, the car was off but in the street and
regardless of what Officer Salazar thought was going on, Mr.
Torres could have been arrested for public intoxication. Officer
Salazar and his accompanying deputies asked if they could
search the car; and while the defendant testified I believe
truthfully, by his own admission the defendant did not recall
whether he had given consent or not.
The Court finds Officer Salazar and Officer Barron's
testimony to be credible and reliable (R.R. 3, 4).
Immediately, appellant entered a plea of guilty in Cause No. 1,385,627
(possession of controlled substance, namely, METHAMPHETAMINE, for a
sentence of 25 years TDC, with the right to appeal the pre-trial motion to
suppress (C.R., 95-103). Appellant entered a plea of guilty in Cause No.
1,385,626 (felon in possession of a firearm) for a sentence of 15 years TDC,
with the right to appeal the pre-trial motion to suppress (C.R., 96-104).
Appellant gave notice of appeal of the trial court’s ruling in each case
and of his conviction in each case. McKenna v. State, 780 S.W.2d, 797,799
(Tex.Crim.App. 1989).
Point of Error Number One
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
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APPELLANT’S MOTION TO SUPPRESS THE TESTIMONY OF DEPUTY
SALAZAR REGARDING AN ORAL CONSENT TO SEARCH THE VEHICLE
BECAUSE IT WAS FRUIT OF AN ILLEGAL DETENTION.
Point of Error Number Two
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM
THE LOCKED CONTAINER IN THE TRUNK OF HIS VEHICLE BECAUSE
IT WAS FRUIT OF AN ILLEGAL DETENTION.
Point of Error Number Three
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION TO SUPPRESS THE TESTIMONY OF DEPUTY
BARRON AS TO APPELLANT’S ACTIONS WHEN THE TRUNK OF HIS
CAR WAS OPENED BECAUSE THIS TESTIMONY WAS THE FRUIT OF AN
ILLEGAL DETENTION.
Statement of Facts
Points of Error Numbers One Through Three
Deputy Salazar testified that he and Deputy Davis got appellant awake
enough to sit up in the driver’s seat. Appellant’s feet were facing out the
driver’s side doorway. Deputy Salazar questioned him. Among other
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questions, Deputy Salazar asked appellant several times if there was anything
illegal in the vehicle. While Deputy Salazar asked questions, appellant looked
in the direction of the front door panel. Deputy Salazar found this “suspicious”
(R.R. 2, 13-14, 47-49).
Based on this suspicion alone, Deputy Salazar ordered appellant to get
out of the vehicle. Appellant complied with this command. Then, Deputy
Davis patted appellant down. Appellant was detained. He was not free to
leave (R.R. 2, 54). At the time Deputy Salazar detained appellant, he had not
observed anything illegal occurring. He did not have any evidence that
anything illegal was in the vehicle (R.R. 2, 48).
Summary of the Argument
Points of Error One Through Three
At the time Deputy Salazar detained appellant, he did not have probable
cause for that detention. He had not observed anything illegal occurring; he
had not seen anything illegal in appellant’s vehicle. The physical evidence
and the verbal evidence used against appellant came after the illegal
detention. They were the “fruits of the poisonous tree.” That evidence should
have been suppressed.
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Argument and Authorities
Points of Error One Through Three
In Wade v. State, 422 S.W.3d 661 (Tex.Crim.App. 2013), the Court of
Criminal Appeals held clearly that a police officer’s “hunch,” even when based
on prior experience or training, is not sufficient to prove probable cause for a
detention. The circumstances in Wade are very similar to those in the present
case. In Wade, two game wardens approached a vehicle parked in a public
boat ramp to see if everything was all right. The game wardens questioned
the driver of the vehicle, who said he was eating his lunch. The driver
produced his identification. One game warden said he was suspicious of
some criminal activity because: (1) the truck was parked on a boat ramp, but
it did not have any fishing equipment and the truck was not pulling a boat; (2)
the driver said that he lived nearby, but his license showed that he lived fifteen
miles from the boat dock; (3) the game warden had not seen evidence of a
lunch inside the truck’s cab; and (4) the driver seemed overly nervous when
the game wardens asked if he had any weapons or contraband in the truck.
The game wardens ordered the driver out of the truck and patted him
down for weapons. After the pat-down, the game wardens asked again if he
had anything illegal in the truck. Then, the driver admitted that there was a
pipe which tests proved that it contained a small amount of
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methamphetamine. The game wardens arrested the driver. At trial, the trial
court denied his motion to suppress the search because of an illegal
detention. The Court of Appeals upheld the trial court’s ruling.
The Court of Criminal Appeals reversed. The Court held that any
consensual encounter between the driver and the game wardens escalated
into an illegal detention when the driver was ordered out of the truck for a pat-
down search. For a detention to be legal, the law enforcement officer had to
have observed things that were sufficiently distinguishable from that of an
innocent person in the same circumstances as to set the suspect apart from
an innocent person, clearly, if not conclusively. The Court of Criminal Appeals
held that none of the circumstances preceding the game warden’s order for
the driver to get out of the truck, even when viewed in the light most favorable
to the trial court’s ruling, justified a reasonable suspicious that the driver was
involved in any criminal conduct. Because the detention was illegal, the
driver’s statement about having the pipe was “fruit of the poisonous tree” and
it could not provide probable cause for the warrantless search of the vehicle.
The only difference between the Wade v. State, supra, decision and the
instant case is that the “fruit of the poisonous tree” is appellant’s alleged
“consent” to search the vehicle, rather than a confession of a crime. The
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“consent” in the instant case, similar to the “confession” in Wade, came after
an illegal detention.
Once Deputy Salazar learned that appellant lived at the residence
where the vehicle was parked, that the vehicle was registered to appellant at
that residence, and that he did not see any sign of criminal activity, the
detention of appellant based on a mere “suspicion” was not reasonable.
Because the detention was illegal, the items recovered from the locked
container in the trunk of the vehicle, all statements by appellant after he was
ordered out of his vehicle, and all actions by the appellant after he was
detained illegally should have been suppressed as “fruits of the poisonous
tree.”
Point of Error Number Four
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO SUPPRESS BECAUSE THE RECORD DOES
NOT SUPPORT THE TRIAL COURT’S FINDING OF FACT THAT OFFICER
SALAZAR HAD PROBABLE CAUSE TO ARREST APPELLANT FOR
PUBLIC INTOXICATION.
Statement of Facts
Point of Error Number Four
Deputy Raymond Salazar was the major investigator in this situation.
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He testified that he observed no evidence that drugs or alcohol were involved
in the situation. When asked if he had any indication that any offense was
being committed or had been committed, Deputy Salazar unequivocally said
that there was none.
CROSS-EXAMINATION BY MR. ORTIZ:
Q. And so, within a minute or so of you arriving on scene,
you have already confirmed with regards to this suspicious vehicle
that was reported that this vehicle is registered to the address that
it is parked directly in front of, correct?
A. Correct.
Q. And this vehicle that you ultimately find Larry Torres
in was legally parked on the street, correct?
A. Yes.
Q. In front of the mailbox?
A. Yes.
Q. And you also agree that - - I believe you also ran his
driver’s license information on his name, correct?
A. I did not run it. What this is is Deputy Davis used my car
to run him.
Q. Okay. But Deputy - -
A. But it indicates on the call slip that it ran through mine
(R.R. 2, 29-30).
*****
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Q. So when you arrived on the street, it’s actually a cul-
de-sac, is that correct?
A. Correct (R.R. 2, 35).
*****
Q. At that point you still haven’t - - there’s no crime or
anything at this point, nothing going on, correct?
A. No crime.
Q. And you indicated that the car was off, engine wasn’t
running, correct?
A. Correct.
Q. So there’s no type of D.W.I. investigation or anything
like that correct?
A. Correct.
Q. And so, at this point, I believe you said that you had
to shake his leg numerous times, you know, just to get him to
wake up; is this correct?
A. Correct.
Q. And that he is real groggy and that you indicated he
didn’t even know where he was at, correct?
A. Correct.
Q. Now, when you walked up to the vehicle, I mean, you
didn’t smell any odor of marijuana, correct?
A. Correct.
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Q. There was no guns or drugs or drug paraphernalia in
plain view anywhere in the car, was there?
A. Correct.
Q. Nothing that would give you the impression that drug
possession or anything having to do with drugs is involved in that
particular call, is there?
A. In plain view, no.
*****
Q. And you would agree, Deputy Salazar, it’s not illegal,
it’s not a crime to sleep in your car, is it?
A. It’s not illegal to sleep in your car, no.
Q. So at this point, you would agree that you verified that
Mr. Torres lives at the residence?
A. Yes.
Q. That he has a legal basis to be there, correct?
A. Yes.
Q. And he wasn’t committing any crimes in your view,
correct?
A. Correct.
Q. There wasn’t any type of criminal activity before or
when you arrived?
A. Correct.
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Q. Even after you got him out of the car and started to
speak to him, still no indication any type of crime had been
committed, correct?
A. Correct (R.R. 2, 36-38).
*****
Q. But the question, Deputy Salazar, is after you verified
that he lives there and that there was no crime being committed
in your view or any signs of any crime by looking into the vehicle
and even after getting him out, you could have walked him up to
the door, knocked on the door, and let him go for the night,
correct?
A. Sure (R.R. 2, 40).
Both Deputy Salazar and Deputy Barron described appellant as very sleepy.
Neither testified that appellant appeared intoxicated (R.R. 2, 11,14-15, 40-43,
61, 67, 91-92, 109).
Summary of the Argument
Point of Error Number Four
In ruling that appellant’s detention was legal, the trial court made this
finding of fact: “Mr. Torres could have been arrested for public intoxication.”
This finding is not supported by the testimony. No witness testified that
appellant’s condition was caused by intoxication. The deputies testified that
no crime was being committed in their view and that the deputies did not see
any signs of any crime. The trial court’s finding of fact is not supported by the
c:\appeals\torres\brief 15
testimony.
Argument and Authorities
Point of Error Number Four
A trial court’s ruling on a motion to suppress evidence is reviewed
under a bifurcated standard. The appellate court will give almost total
deference to the trial court’s rulings on questions of historical fact and on its
application-of-law-to-fact questions that turn on an evaluation of the credibility
and demeanor of the witnesses at the hearing. But when the application-of-
law-to-fact questions do not turn on the credibility and demeanor of the
witnesses, the appellate court reviews the trial court’s rulings on those
questions de novo. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.
2007).
When the trial court has made explicit findings of fact, a review of the
record must be made in the light most favorable to the trial court’s ruling to
determine whether the record supports those fact findings. The appellate
court then reviews the trial court’s legal ruling de novo, unless the trial court’s
explicit fact findings are supported by the record and are dispositive of the
legal ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007); State
v. Kelly, 204 S.W.3d 808, 818-819 (Tex.Crim.App. 2006).
c:\appeals\torres\brief 16
The record does not support the finding by the trial court that the
Deputies could have arrested appellant for public intoxication. Public
Intoxication is a criminal offense set forth in Texas Penal Code, Sec. 42.08(a).
An individual commits the offense if he appears in a public place under the
influence of alcohol or any other substance, to the degree that the individual
may endanger himself or another. A warrantless arrest for public intoxication
is valid only if the arresting officer has reason to believe that the suspect is not
merely intoxicated but intoxicated to the degree that he may endanger himself
or another.
The undisputed testimony from the arresting deputies themselves is that
they did not observe evidence that appellant was under the influence of
alcohol or any other substance. Deputy Salazar testified that he did not
observe any evidence that drugs or alcohol were involved in this situation.
Deputy Salazar testified, unequivocally, that there was no indication that any
offense was being committed or had been committed.
Even if appellant’s sleepiness could have been considered an indication
of intoxication, mistakenly, the physical manifestations of alcohol or drug
consumption are not sufficient to constitute the offense of public intoxication.
There must be proof of a potential danger at that time. See and compare:
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Chilman v. State, 22 S.W.3d 50 (Tex.App. Houston [14th Dist.] 2000, pet.
ref’d)(A car stopped in an isolated place at 2 a.m. The defendant found sitting
in the driver’s seat with the motor running. He had bloodshot eyes, slurred
speech and he smelled of alcohol. It was reasonable to conclude that he was
intoxicated and he was going to drive in that condition, thereby posing a risk
to himself or others); Simpson v. State, 886 S.W.2d 449 (Tex.App. Houston
[1st Dist.] 1994, pet. ref’d)(Defendant arguing violently in the middle of a street.
He displayed signs of intoxication: bloodshot eyes, slurred speech, and he
smelled strongly of alcohol. It was reasonable to assume that moving
vehicles in the street posed a danger to appellant because of his state of
intoxication); Campbell v. State, 325 S.W.3d 223 (Tex. App. Fort Worth 2010,
no pet.)(Officer received a dispatch about a possible drunk driver. He found
the described vehicle stopped on a residential street. The defendant smelled
of alcohol and was asleep or passed out. The keys were still in the ignition,
and upon awakening the defendant immediately reached for the keys to start
the car. His obvious intent to drive in that condition created a reasonable
conclusion that he posed a danger to himself or others); Dickey v. State, 552
S.W.2d 467 (Tex.Crim.App. 1977)(Vehicle found parked in front of a lounge
in the early morning hours. The defendant was intoxicated and passed out in
c:\appeals\torres\brief 18
the front seat. Because it was possible that he could have come to and
decided to drive home in that condition, it was reasonable to conclude that he
posed a danger to himself or others). Certainly, the testimony in the case
before the Court does not support the claim that appellant was intoxicated to
the degree that he may endanger himself or another, which is an element of
Public Intoxication.
The testimony does not support the trial court’s ruling that Deputy
Salazar had probable cause to arrest appellant for the offense of Public
Intoxication. Appellant’s detention was without probable cause. The evidence
seized as a result of appellant’s illegal detention and arrest should have been
suppressed.
Point of Error Number Five
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE BECAUSE THE
STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE
THAT THE “CONSENT” OBTAINED BY DEPUTY SALAZAR WAS
VOLUNTARY UNDER THE TOTALITY OF THE CIRCUMSTANCES.
Statement of Facts
Point of Error Number Five
When Deputy Raymond Salazar arrived at 6:25 a.m., appellant was
c:\appeals\torres\brief 19
asleep in his own vehicle, parked in front of his own residence. Deputy
Salazar shook appellant’s leg until appellant opened his eyes, but appellant
fell back asleep immediately. After Deputy Davis arrived, he and Deputy
Salazar shook appellant until appellant woke up. Even then, appellant was
very groggy. When Deputy Salazar asked appellant what was going on,
appellant sat up to answer his question, but appellant remained very
stuporous (R.R. 2, 11-13). The deputies ordered appellant out of his vehicle.
The deputies took appellant to the rear of the vehicle and told him to stand
near the rear tire. Appellant complied, but he kept falling asleep, even while
standing up (R.R. 2, 14-15, 40-41). Deputy Barron said that appellant was
very sleepy when he arrived at 6:38 a.m. (R.R. 2, 61). The deputies had a
difficult time keeping appellant from falling asleep during the entire time he
was in their presence. After the deputies discovered the firearm and the
contraband in the locked safe inside the trunk, Deputy Barron placed
appellant in his patrol vehicle. Immediately, appellant fell asleep in the police
vehicle. Appellant slept all the way from the scene to the police station.
Appellant testified that he had been without sleep for four to five days
before the early morning hours of April 27, 2013. During some of that time,
he had taken methamphetamine which makes sleep impossible. On the day
c:\appeals\torres\brief 20
before he was arrested, appellant had been drinking and partying with a
girlfriend. As he drove to his home, he started falling asleep at stop lights. He
managed to drive to his residence at approximately 4:00 a.m. He turned off
the engine. He was in the process of sending a text message to his girlfriend
before going inside his residence when his “body just shut down” from lack of
sleep. He was not drunk; he was not on methamphetamine or speed or any
drug. He was just very, very tired (R.R. 2, 102-104,117-118). He
remembered being “woke up by the cops,” who told him they were there to
make sure that he was okay. Appellant did not remember getting out of his
vehicle, but he must have because he remembered leaning across the trunk
of the vehicle to sleep (R.R. 2, 105-106,112). Appellant remembers seeing
the deputies inside his vehicle, but he did not remember giving the officers
consent to search his vehicle. Appellant said that when he was pulled off the
trunk of his vehicle so Deputy Salazar could open it, he remembered waking
up enough to object because he knew what he had in the locked box in the
trunk could get him in trouble (R.R. 2, 108-109,112-113).
Deputy Salazar admits that he had “Written Consent to Search” forms
available which he could have asked appellant to sign. He admits that it
would have taken “only a second” to ask appellant to sign a consent to search
c:\appeals\torres\brief 21
form. But he did not ask appellant to sign one. He did not video or record
the conversation asking appellant to consent to a search of his automobile.
Deputy Salazar agreed that by not recording the consent to search the vehicle
by video, audio or in writing, he knew that it would be his word against
appellant’s word whether appellant gave consent to search the vehicle (R.R.
2, 45, 46).
Deputy Barron got a written consent to search the residence from
someone in the residence (R.R. 2, 96-98). The deputies did not find anything
illegal during the search of the residence.
Appellant testified that he did not remember giving consent to search his
vehicle because his memory was affected by severe sleep deprivation and his
need for sleep. However, he says that regardless of his physical or mental
condition, he would not have given consent to search the vehicle because he
knew what he had in the locked box inside the trunk of the vehicle. And, he
knew that what he had in that locked box could get him in serious trouble
(R.R. 2, 107, 120-121). Trial counsel asked appellant about his mental
condition at the time Deputy Salazar asked him for consent to search his
vehicle, and whether that mental condition affected his understanding of what
Deputy Salazar was asking him. Appellant replied:
c:\appeals\torres\brief 22
A. I hadn't slept in five days. I was out of it.
Q. And so, what happened next as you're on the trunk
and they're going through the car?
A. When they pulled me off the trunk, they started going
through the trunk. I'm, like, what are you guys doing, you know?
You guys need a warrant to get in there. And I came to only
because, granted, you know, I know what I got in the trunk, you
know. And I carry a lockbox for a reason and that's to make sure
if I ever got found in a situation like this, that they wouldn't get in
it without a warrant. I'm not going to let them just take me like
that. They say they got seasoned veterans as officers; well, you
know, I'm 46 years old and I've been in the game myself, you
know, for a while (R.R. 2, 108).
Summary of the Argument
Point of Error Number Five
The State failed to prove by clear and convincing evidence that
appellant gave a voluntary consent to search his vehicle. Sometimes, a police
officer’s oral testimony that a person gave verbal consent to search may
constitute “clear and convincing evidence.” However, when it would have
taken “only a second” to have the citizen sign a Written Consent to Search,
a form which every Harris County Sheriff Deputy carries in his patrol vehicle,
a shadow is cast on that police officer’s testimony. Especially, if the police
officer knows that the issue of consent would be resolved by the police
officer’s testimony versus the accused’s testimony.
c:\appeals\torres\brief 23
Additionally, the physical and mental condition of the citizen must be
considered as part of the totality of the circumstances in determining whether
the State has met its burden to show a voluntary consent by clear and
convincing evidence. In this case, the evidence shows clearly that appellant
was sleep deprived to the extent that he could not remain awake, except
interminably, during this investigation.
Argument and Authorities
Point of Error Number Five
The Texas Code of Criminal Procedure, Art. 38.23(a) prohibits the
admission in a criminal case of any evidence seized in violation of any
provision of the Constitution or laws of the State of Texas, or the Constitution
or laws of the United States of America. The Fourth Amendment to the United
States Constitution protects citizens against unreasonable searches and
seizures. The Texas Constitution, Art. I, Sec. 9, provides that a warrantless
search or seizure is per se unreasonable, subject to a few well-defined and
limited exceptions. Consent to search is an exception to the warrant
requirement. Cardenas v. State, 857 S.W.2d 707, 710 (Tex.App. Houston
[14th Dist] 1993, pet. ref’d)(Citing Kolb v. State, 532 S.W.2d 87, 89 n.1
(Tex.Crim.App. 1976)).
c:\appeals\torres\brief 24
A person’s consent to search can be communicated to law enforcement
orally, in writing, or through circumstantial evidence indicating implied
consent. However, the consent must be voluntary to be valid. The trial court
must conduct a careful sifting and balancing of the unique facts and
circumstances in each case in deciding whether a particular consent to search
was voluntary. Meekins v. State, 340 S.W.3d 454, 458-459 (Tex.Crim.App.
2011).
Whether a consent to search or an incriminating statement is voluntary
is controlled by Texas Code of Criminal Procedure, Art. 38.22, Sec. 6. Under
Texas law, a claim of involuntariness does not need to be predicated on
coercive police activity or whether the person is in custody. Oursbourn v.
State, 259 S.W.3rd 159 (Tex.Crim.App. 2008) holds that Article 38.22, Sec.
6 protects people from themselves, not only from police overreaching. The
focus is whether the accused voluntarily made the statement or gave the
consent.
In Oursbourn, the Court of Criminal Appeals explains that fact situations
can raise a state-law claim of involuntariness, even if they do not raise a
federal constitutional claim. The opinion gives several non-exclusive
examples where this may be true: (1) the accused was ill and on medication
c:\appeals\torres\brief 25
and that fact may render his confession involuntary; (2) the accused may be
intellectually disabled, and that fact may prevent him from “knowingly,
intelligently and voluntarily” waiving his rights; (3) the accused may lack the
mental capacity to understand his rights; (4) the accused may be intoxicated
to the extent that he thought he was signing an accident report, not an
inculpatory confession; (5) the accused was confronted by a relative of his
murder victim and beaten; (6) the accused was returned to the burglarized
premises and questioned by several persons who were armed with weapons.
at 160-173. These examples illustrate how the issue of voluntariness can be
raised under Texas statutory law. Under Texas law, the State must prove that
the consent was voluntary by clear and convincing evidence, not merely by
a preponderance of the evidence. Carmouche v. State, 10 S.W.3d 323, 327-
328 (Tex.Crim.App. 2000); Ibarra v. State, 953 S.W.2d 242, 245
(Tex.Crim.App. 1998).
In Carmouche v. State, supra at 330, the Court of Criminal Appeals
discussed the issue of consent as an exception to the probable cause and
warrant requirements of our state and federal constitutions. Consent is not
established by showing no more than acquiescence to a claim of lawful
authority. The trial court must look at the totality of the circumstances
c:\appeals\torres\brief 26
surrounding the statement of consent to determine whether it was given
knowingly and voluntarily. This includes the characteristics of the accused as
well as the details of the interrogation.
There is no conflicting evidence in this case as to appellant’s mental and
physical condition at the time Deputy Salazar obtained a statement of
consent. Deputy Salazar testified that at the time he requested permission to
search the vehicle, appellant was abnormally sleepy to the extent that he kept
falling asleep even while standing up. All the testimony unequivocally shows
that appellant was not fully awake at the time Deputy Salazar asked appellant
for consent to search the vehicle. He continued to fall in and out of sleep from
shortly after 6:25 a.m., when Deputy Salazar woke him up enough to be able
to sit up, and 6:28 a.m. when Deputy Barron arrived.
Although appellant was not under heavy medication that interfered with
his wakefulness and mental processes, the same rationale should apply to a
state of abnormal sleepiness in determining the issue of voluntariness. The
question is whether the state of appellant’s consciousness rendered him
incapable of making an informed decision. This record does not support the
trial court’s implied finding that the statement of consent obtained by Deputy
Salazar was voluntary under the totality of the circumstances. See and
c:\appeals\torres\brief 27
compare: Davis v. State, 313 S.W.3d 317, 336-339 (Tex.Crim.App.
2010)(Evidence showed that the defendant was calm and exhibited a rational
understanding of the questioning); Paolilla v. State, 342 S.W.3d 783, 792-793
(Tex.App. Houston [14th Dist.] 2011, pet. ref’d)(Evidence showed that the
defendant spoke clearly and concisely, was conscious and alert, was oriented
to her surroundings, and lucid during questioning).
The instant case is an excellent opportunity for the Court of Appeals to
give guidance to trial courts on applying the “clear and convincing standard”
to the totality of the evidence. One factor that ought to be considered is
whether the law enforcement person could have memorialized the consent to
search In writing or by recording or by video, but he did not do so. If the
consent is memorialized, it is stronger evidence and is more likely to support
a finding that the consent is proven by clear and convincing evidence. In the
instant case, Deputy Salazar chose not to memorialize the consent in writing
although he said it would have taken only a second to do so. In this same
episode, Deputy Deputy Barron memorialized the consent to search the
residence by a pre-printed written consent form which deputies carry in the
trunks of their police vehicles.
c:\appeals\torres\brief 28
Deputy Salazar chose not to memorialize the consent in writing,
knowing that the evidence of consent would only be his testimony at the
hearing versus the testimony of the accused. This is not to say a police
officer’s testimony alone cannot provide clear and convincing evidence that
the accused consented to a search. But, a cloud is placed on that testimony
when the police officer refuses or neglects to memorialize the consent when
it is so easily possible to memorialize it.
It is clear that appellant was coming in and out of consciousness due to
sleep deprivation. He kept falling asleep in the presence of the deputies. The
deputies could waken him only momentarily. The condition is similar to an ill
person who is heavily medicated and comes in and out of sleep. Anything a
person says in that condition is suspect as not being a voluntary or knowing
consent.
This court should find that the State did not meet its burden of proving
a voluntary consent to search by clear and convincing evidence. Deputy
Salazar, who said it would have taken only a second to have appellant sign
a written consent to search document which is readily available, chose not to
take that second. Instead, Deputy Salazar wanted the issue of consent to be
decided only by his testimony at a hearing to suppress the evidence.
c:\appeals\torres\brief 29
Neglecting to memorialize a citizen’s waiver of a constitutional right, when it
may easily be memorialized, casts a shadow on whether the waiver of that
constitutional right is proved by clear and convincing evidence. It is clear that
appellant was in no physical or mental condition to waive his constitutional
rights intelligently or voluntarily because he was sleep deprived.
Considering the totality of the evidence, the State did not prove by clear
and convincing evidence that appellant’s consent was voluntary. Therefore,
the items recovered during the search of appellant’s vehicle should have been
suppressed.
Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, appellant prays that this
Court hold that the trial court abused its discretion in overruling appellant’s
motion to suppress in each case, and that this Court reverse the conviction in
each case, remanding each case to the trial court.
Respectfully submitted,
/s/ Allen C. Isbell
ALLEN C. ISBELL, Counsel on Appeal
2016 Main St., Suite 110
Houston, Texas 77002
713/236-1000
Fax: 713/236-1809
STATE BAR NO. 10431500
email: allenisbell@sbcglobal.net
c:\appeals\torres\brief 30
Certificate of Service
I hereby certify that on this 7th day of July, 2015, a true and correct copy
of the foregoing Brief for Appellant has been sent to the District Attorney's
Office, Appellate Division, and to Mr. Larry Torres, appellant.
/s/ Allen C. Isbell
ALLEN C. ISBELL
Certificate of Compliance
The undersigned attorney on appeal certifies this brief is computer
generated and consists of 7,145 words. Counsel is relying on the word count
provided by the Word Perfect computer software used to prepare the brief.
/s/ Allen C. Isbell
ALLEN C. ISBELL
c:\appeals\torres\brief 31