                                                                            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




c:\appeals\torres\brief                                         ii
                                    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

c:\appeals\torres\brief                                                                                       iii
                 .................................................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

c:\appeals\torres\brief                                                                                    iv
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31




c:\appeals\torres\brief                                                                                v
                                    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


c:\appeals\torres\brief                                                                                        vi
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.

c:\appeals\torres\brief                                                                                        vii
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.

c:\appeals\torres\brief                                                      1
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.”


c:\appeals\torres\brief                                                      2
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


c:\appeals\torres\brief                                                       3
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).


c:\appeals\torres\brief                                                       4
       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).


c:\appeals\torres\brief                                                          5
       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


c:\appeals\torres\brief                                                      6
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



c:\appeals\torres\brief                                                   7
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.




c:\appeals\torres\brief                                                       8
                              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

c:\appeals\torres\brief                                                           9
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


c:\appeals\torres\brief                                                        10
“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.

c:\appeals\torres\brief                                                     11
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).

*****

c:\appeals\torres\brief                                                         12
            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.


c:\appeals\torres\brief                                                       13
             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.




c:\appeals\torres\brief                                                       14
            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:


c:\appeals\torres\brief                                                          17
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
