                                                                                          PD-1607-14
                                                                         COURT OF CRIMINAL APPEALS
                                                                                          AUSTIN, TEXAS
                                                                       Transmitted 1/19/2015 4:30:33 PM
                                                                         Accepted 1/22/2015 2:42:23 PM

                               NO.    PD— 1607-14                                          ABEL ACOSTA
                                                                                                   CLERK


              IN THE TEXAS    COURT OF CRIMINAL APPEALS
                             AT AUSTIN, TEXAS
                                        ***

                         JASON MICHAEL PLACIDE,
                                     Petitioner,


                                         V.


                           THE STATE OF TEXAS,
                                     Respondent.

                                        ***
January 22, 2015

                              On Review from the
                          Fourteenth Court of Appeals
                               at Houston, Texas
                              NO.    14- 13-00725-CR

                   Appeal from the   180"‘ Criminal District   Court
                              Harris County, Texas
                             (Cause No. 1,353, 416)

                                        ***

         APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                               Michael A. McEnrue
                             639 Heights Boulevard
                                 PO. Box 70978
                              Houston, Texas 77270
                                  (713) 862-1975
                              (713) 864-8587 (FAX)
                             mmcenrue@justice.com

                             Attorney for Petitioner
                             Jason Michael Placide
                         Identity of Trial Judge, Parties        and Counsel

         Marc W. Brown was           the presiding judge or a visiting judge with respect to

all   matters determined        by the   180"‘ Criminal District   Court of Harris County, Texas

in this case.


         Petitioner     is   Jason Michael Placide, SPN0l92237l, 701 North San Jacinto

5A2 01H, Houston, Texas 77002

         Petitioner     was represented      in the 180"‘ Criminal District     Court by Kenneth

Cager,    TBC    No. 34011189, 19901 Southwest Freeway, Suite 130, Sugar Land,

Texas 77469. Michael A. McEnrue,                TBC No.    13589050, Post Ofﬁce          Box   70978,

Houston, Texas 77270-0978 was appointed to represent Petitioner in the court of

appeals and represents him in this Court.

         Assistant District Attorney Seth Gagliardi,                TBC     No. 24073207, 1201

Franklin, Houston, Texas           77002 represented the     State in the criminal district court.


The    State   was   additionally represented in the court of appeals         by Assistant     District


Attorney Eric Kugler, Appellate Division, 1201 Franklin, Houston, Texas 77002.



                                  Statement Regarding Indigency

         The undersigned counsel was appointed to represent                 Petitioner   on appeal by

order of the    trial   judge signed on July 29, 2013.      (   C1kR. 51)

                                                    (i)
                       Statement Regarding Oral Argument


      Petitioner waives oral    argument on   his petition for discretionary review, but


believes that this Court will   ﬁnd oral argument on the merits useful   in this case.
                                                Table of Contents

§1b_'L<:9.f;                                                                                                            Egg
Identity       of Trial Judge, Parties and Counsel ...........................................                              .   .i




Statement Regarding Indigency .............................................................................                      ..i




Statement Regarding Oral Argument ....................................................................... ..ii

Table of Contents ................................................................................................... ..iii

Index of Authorities                  ....................................................................................... ..iv



Statement of the Case            ..................................................................... ..2


Statement of Facts and Proceedings ..................................................... ..2

Question Presented..                  ........................................................................................ ..5



Reasons for Review ................................................................................................. ..5

Prayer for Relief.................................................................................................... .. 13

Certiﬁcate of Service ............................................................................................. ..15

Appendix

         -      January    7,   2014 Abatement Order

         -      March    10,    2014 Findings of Fact and Conclusions of Law

         -      March    18,    2014 Reinstatement Order

         -      September 25, 2014 Memorandum Opinion

         -      October 24, 2014 Motion for Rehearing


                                                            (iii)
                                      Index of Authorities


Egg
Tex. R. App. P. 38.7 ........................................................................ ..6
                                                                                              hag
Alabama v. White, 496, U.S. 325 (1990) ..............................................            ..13


Balentine     V. State,   71 S.W.3d 763 (Tex. Crim. App. 2002) ...................... ..1 1-12

Costley V. State Farm Fire            &
                                   Casualty C0,, 894 S.W.2d 380 (Tex. App.                          —
Amarillo 1997, writ den’d) .................................................................        ..6



Illinois v.   Wardlow, 528 U.S. 119 (2000)        ............................................. ..13


Lankston      V. State,   827 S.W.2d 907 (Tex. Crim. App. 1992) ........................ ..l0

Oliver V. State, 891 S.W.2d 651 (Tex. Crim. App. 1995) ............................. ..7

Reich—Bac0t      v. State,   952 S.W.2d 542 (Tex. Crim. App.         1997’) ...................... . .7



Resendez v.      State,   306 S.W.3d 308 (Tex. Crim. App. 2009) ...................... ..9-10

Theus   v. State,   863 S.W.2d 489 (Tex. Crim. App. 1993) ............................. ..7

United States     v.   Henley, 984 F.2d 1040    (9"‘ Cir.   1992) .......................... ..10-11

Wicker V.     State,   740 S.W.2d 779 (Tex. Crim. App. 1987) ............................ ..S

Wilson v. State, 296 S.W.3d 140 (Tex. App.~
Houston [14 Dist.] 2009, pet. ref’ d) .....................................................        ..6




                                                (iv)
                               NO. PD —          1_607-14

              IN THE    TEXAS COURT OF CRIMINAL APPEALS
                             AT AUSTIN, TEXAS
                                      ***

                         JASON MICHAEL PLACIDE,
                                   Petitioner,


                                            V.


                           THE STATE OF TEXAS,
                                  Respondent.

                                      ***

                              On Review from the
                          Fourteenth Court of Appeals
                               at Houston, Texas
                              NO. 14-13-0O725—CR

                   Appeal from the 180* Criminal District Court
                              Harris County, Texas
                             (Cause No. 1,353, 416)

                                      are   4:   ac:




       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
      Petitioner Jason Michael Placide, Appellant below, applies for review of a

Judgment and Opinion of the Fourteenth Court of Appeals with      this petition for


discretionary review.
                                         Statement of the Case

      Petitioner challenges the July 26,                     2013 Judgment of the          180d‘ Criminal


District   Court of Harris County, Texas, which sentenced him to a ﬁve-year term of

conﬁnement         in the institutional division             of the Texas. Department of Criminal

Justice for possession of cocaine. (Clk. R. 45-48) In the court of appeals, Petitioner


disputed the      trial   court’s ruling    on   his   motion to suppress heard prior to his guilty

plea. (Clk. R. 32;        RpR. 99)

                               Statement of Facts and Proceedings

    At the suppression hearing, the                State stipulated that     it   had the burden of proof.

(RpR. 7)    Its   witnesses then told the following story:

       During the night          shift      on July     6,   2012, the Houston Police Department

dispatched three patrol ofﬁcers to an apartment complex at 8034 Antoine near

West Gulf Bank with a report that three or                    four black males were “doing drugs and


loading guns” outside a white truck and a black                         Dodge Magnum. (RpR.         13-14)


When the ofﬁcers arrived, they               found three black males near a white pickup in the

parking lot of the complex. (RpR. 15-16)

       On    the strength of the         anonymous           tip,   the ofﬁcers handcuffed each of the

individuals,      and frisked them, but found no guns or drugs. (RpR.                       14, 25-26, 43,


52-53, 57, 65) Although no one had attempted to ﬂee, the ofﬁcers locked each of

the handcuffed suspects in           the.   back   seats     of separate patrol cars as they continued
their investigation.    (RpR. 26, 36, 42) The officers then ran the suspects’ criminal

histories,   but learned that none had outstanding warrants. (RpR. 16, 36)                          They

searched the white pickup truck, but found no guns or drugs. (RpR. 25)

         The policemen spotted a black Dodge Magnum parked                         three spaces    away

from the white pickup. (RpR. 43)                Two     of the patrolmen went to shine their

ﬂashlights through       its    passenger side window. They viewed plastic bags of

marijuana and clear      pills    on the console between the two front              seats.   ﬂKpR. 17)

The   third officer   meanwhile questioned Petitioner who claimed ownership of the

Magnum, admitted that he had driven              it,   and stated that he lived     at the address    on

the registration. (RpR. 18, 46) That policeman testified that Petitioner                     was under

arrest   when   the other officers found the drugs in the           Dodge Magnum. (RpR. 22)

The police    further admitted that they did not give Petitioner the warnings                mandated

by Miranda      v.   Arizona, 384 U.S. 436 (1966). (RpR. 32-33, 72)                  They    stated that


they normally d0n’t do         that, that   they are not taught to do     it.   (RpR. 37, 53)

Petitioner did not have a        key   to the vehicle; moreover,    it   was not registered to him.

(RpR. 27, 33, 72) The policemen therefore called a tow truck, and asked the driver

to   open the Dodge      Magnum upon           his arrival.   (RpR. 30, 58) They retrieved the

marijuana as well as crack and powder cocaine they found underneath                           it   on the

console.
      At the conclusion of the hearing, the trial court denied                      Petitioner’s   motion   to


suppress evidence, including Petitioner’s statements (RpR. 37, 97), then took

Petitioner’s guilty plea    and certiﬁed his           right to "appeal.      (RpR. 99: ClkR. 36, 43)

      In his court of appeals brief, Petitioner argued that his statement to his

arresting ofﬁcer   was the           ﬁ'uit   of an investigative detention that violated the Fourth

Amendment because          it    lacked reasonable suspicion and also exceeded the scope

permitted.    Petitioner        also         argued that his interrogation violated the Fiﬁh

Amendment       as well as Article 38.22 of the Texas                  Code of Criminal Procedure           for


lack of prior   Miranda warnings.

      After Petitioner submitted his brief, but before the State replied, the court of

appeals decided at least one of Petitioner’s arguments implicated the voluntariness

of his statement. Relying on Wicker                   v.   State,   740 S.W.2d 779, 783 (Tex. Crim.

App. 1987),     that court abated the appeal, directed the trial court to                    make    written


ﬁndings of      fact   and conclusions of law on the voluntariness of Petitioner’s

statement, and ordered          it   to   supplement the appellate record within          thirty days.


(Appendix)      When     the         trial    court complied (Appendix), the appellate court

reinstated the appeal and directed the State to ﬁle                   its   brief in 30 days. (Appendix)


       Aﬁer     the State ﬁled             its   responsive brief, the panel heard oral argument,

issued an opinion which incorporated the                      trial   court’s findings of fact verbatim


without question. (Appendix) That opinion concluded that Petitioner had failed to
preserve his contentions regarding the fourth        amendment    violations.      With respect

to Petitioner’s claimed violation        of the Fifth Amendment, the court decided          that


Petitioner’s detention did not        amount    to custody that implicated the         Miranda

requirements.     On November      6,    2014, the Fourteenth Court of Appeals denied

Petitioner’s October 24,       2014 motion      for rehearing   which complained of         that


court’s failure to provide for supplemental brieﬁng after the trial court              made      its



ﬁndings of fact and conclusions of law regarding the suppression of evidence.

(Appendix)

                                   Questions Presented

   Whether the Court of Appeals’ Abatement and Reinstatement Procedure
                 Correctly Implemented this Court’s Wicker Decision.

                                       to Preserve a Claim that
                  Whether Petitioner Failed
     His Statement Regarding His Connection to a Black Dodge                     Magnum
              Was the Fruit of a Fourth Amendment Violation.
              Whether Petitioner Underwent a Custodial Interrogation

                                   Reasons for Review

                                                A.

       If a trial court    makes no     factual findings to support   its   ruling regarding the


voluntaiiness of a confession, or if the court’s ﬁndings lack sufficient detail to

permit resolution of the appellate dispute raised by a party, this Court’s decision in

Wicker   v.   State,   740 S.W.2d 779, 783 (Tex. Crim. App. 1987)            directs the court    of

appeals to abate an appeal and order the district judge to        make       written ﬁndings on
the disputed issues regarding the voluntariness of a defendant’s challenged

confession.

      If one leaves aside whether the Wicker procedure applies to challenges


outside that speciﬁed in Texas            Code of Crim.       P. Art.   38.22 §6, there   still   remains a

question about      how    to reconcile a brieﬁng schedule that has already                 commenced

with the sequence of abatement, supplementation of the record, and reinstatement

of the appeal mandated by this Court in that case.

      As one alternative, one panel of the Fourteenth Court of Appeals has offered

an appellant the opportunity to supplement                  his brief following the entry     of the      trial


court’s ﬁndings and conclusions. Wilson                v.   State,   296 S.W.3d 140, 143 (Tex. App.-

Houston [14       Dist.]   2009,   pet.   refd) (past example). That option         is   consistent with


Tex. R. App. P. 38.7 which provides that “a brief                              may be amended               or


supplemented whenever justice requires, on whatever reasonable terms the court

may prescribe.”

      In at least one civil case, a Texas court of appeals has determined that a

litigant is entitled to re-brief or             supplement his brief when the appellate process

generates   new      issues. Costley v. State        Farm      Fire and Casualty Co., 894 S.W.2d

380, 387(Tex. App.—Amarillo 1997, writ denied) (issue arising during appeal).

      At    its   core, this   problem     is   akin to the one this Court addressed        when     it   held

that an     indigent defendant’s mandatory right to re-brief                       on remand ﬂows
necessarily from his constitutional or statutory right to counsel. See,           e.g.,   Reich-

Bacot     v.   State,   952 S.W.2d 542, 543 (Tex. Crim. App. 1997) (mandatory

opportunity to re-brief on remand from Texas Court of Criminal Appeals); Oliver

v.   State,    891 S.W.2d 651 (Tex. Crim. App. 1995) (same); Theus           v.    State,    863

S.W.2d 489, 491 (Tex. Crim. App. 1993) (same). In                addition, failing to allow


supplemental brieﬁng       when the    issues change during the appellate process raises a


question of fairness that    may rise on some occasions to the level of a deprivation of

due process.

         This Court should therefore consider this issue and determine whether the

court of appeals had a statutory duty under the Texas Rules of Appellate Procedure

or a constitutional duty based      on the due process clause or the due course of law

provision of the Texas constitution to notify Petitioner of his right to re-brief after

abatement and address the        new    or altered issues created by the Findings of Fact

and Conclusions of        Law   supplementing the appellate record after Petitioner had

ﬁled his brief. Texas Rule of Appellate Procedure 66.3(b).

                                                 B.

         Prior to the hearing in the     trial court,   appointed counsel ﬁled a motion to

suppress certain physical evidence taken from the Black          Dodge Magnum as well          as


“[a]ny other matters that the Court ﬁnds should be suppressed upon hearing of this

motion.” (ClkR 32-33).        As the   State   adduced evidence and the speciﬁc    facts    of the
encounter came to            light,    however, defense counsel expanded the range of his

challenges to include:

      (a) the          scope of Petitioner’s detention (RpR. 25);

      (b)       whether the ofﬁcer’s         call slip      from an anonymous source and the

                circumstances         witnessed    upon      arrival     would provide reasonable

                suspicion to detain Petitioner to the extent recounted (25-26);

         (c) the ofﬁcer’s failure to afford Petitioner his               Miranda warnings (RpR. 32-

                33);   and

         (cl)   the recurring problem of both officers’ failure to give             Miranda warnings

                when     they handcuff people and lock them in patrol cars. (RpR. 37, 53                   &
                96)

         At     the close of the evidentiary hearing, trial counsel orally challenged

Petitioner‘s purported statement admitting a connection with the                             Black Dodge

Magnum          and the validity of his detention and          its   scope in light of the facts recited

by the    officers. Petitioner’s attorney         summarized         his position as a set   of challenges

to the actions of the officers based              on the Fourth, Fifth and Sixth Amendments                to


the United States Constitution, Article              1,   §9 of the Texas Constitution and “Article

28.23”    [sic]    of the Texas Code of Criminal Procedure. (RpR. 96-97).

         The      State did not address the points           made by defense       counsel.     Instead,   it



contended ﬁrst that there had been reasonable suspicion for Petitioner’s detention
and next   that the drugs     were found in a plain View                that the police   were allowed      in


the circumstances. (RpR. 98-99).              The    assistant district attorney then closed his


ﬁnal remarks by      stating:     “As   for the other issues that are raised, as far as the links


or connections to this defendant, that               falls   outside the scope of this motion to

suppress hearing.”      (Id.)      Although    it   recognized that defense counsel had raised

additional issues during the hearing, in other words, the State refused to deal with


any that lay outside the scope of Petitioner’s written motion                          to suppress.   At   that


point, the trial court orally denied Petitioner’s suppression motion.                      (RpR. 99)

        When the     State draﬁed proposed Findings of Fact                     and Conclusions of Law

during the abatement of Petitioner’s appeal,                 it   continued     its   effort to forestall the


latter’s assertion    of any claims about constitutional violations surrounding his

statements in a preamble to the document. Subject to that proviso, the                            trial   court


ruled   on   Petitioner’s         ﬁﬁh amendment         claim;          it   did not explicitly rule on

Petitioner’s fourth    amendment claim          in that   document. (Appendix).

        In Resendez     v.   State,     306 S.W.3d 308, 312 (Tex. Crim. App. 2009),                        this


Court held that held that an argument made during a suppression hearing                                      is



sufﬁcient to alert a     trial     court that a defendant          is   arguing a claim of statutory or

constitutional violation.          In explicating the governing law, the Court quoted                       its



opinion in Larzkston         v.   State,   827 S.W.2d 907, 909 (Tex. Crim. App. 1992) to

summarize the core requirements of preserving error under Texas Rule of
Appellate Procedure 33.l(a) and Texas Rule of Evidence 103.                   It   framed them as

follows:

      To preserve an error for appeal, a party must be speciﬁc enough so as
      to ‘let the trial judge know what he wants, why he thinks himself
      entitled to    and do so clearly enough for the judge to understand him
                     it,

      at   a time when the trial court is in a proper position to do something
      about   it.’



Resendez v.   State,   306 S.W.3d 308, 313 (Tex. Crim. App. 2009).

      The Court        also emphasized that appellate courts           must pay attention       to


contextual clues concerning what particular arguments a party            is   making:

             [Courts] cannot consider just the speciﬁc complaint in
      question; [they] must also look at the context. When the correct
      ground for exclusion was obvious to the judge and opposing counsel,
      no forfeiture results from a general or imprecise objection.

Resendez v.   State,   306 S.W.3d at 308, 313 (Tex. Crim. App. 2009).

      By    holding in this case that Petitioner failed to preserve a claim that his

statement regarding a connection with a Black       Dodge Magnum was                 the fruit of a


Fourth     Amendment       violation (Appendix Slip op. at 8), the Fourteenth Court             of

Appeals has ignored the core principles outlined      in   Resendez      v.   State,   306 S.W.3d

308 (Tex. Crim. App. 2009). Texas Rule of Appellate Procedure                 66.3(c).


                                              C.

      In United States       v.   Henley, 984 F.2d 1040    (9th Cir.    1992), the court dealt

with Henley’s claim that his statement he owned a car involved in a robbery was

obtained in violation of his Miranda rights. Although the FBI had not formally


                                              10
arrested    Henley        at the time,   an agent entered the police car where Henley                  sat in


handcuffs, and asked             him whether he owned a                 particular   1974 Plymouth Duster.

When Henley acknowledged                  his ownership, the agent disclosed that he suspected

the car had been involved in a bank robbery, and obtained I-lenley’s consent to

search the vehicle. With evidence taken                        ﬁom      the Duster, prosecutors obtained

Hen1ey’s conviction not for the bank robbery then under investigation but for one

that   had occurred eight days           earlier.


        Writing for the panel and relying directly on Miranda                          v.   Arizona, 384 U.S.

486 (1966), Judge Kozinski              stated:


         Whether Henley was              in   custody     at the   time he admitted owning the
         car   is   easily resolved.

         ***

                    It is fair   to say that   someone who
                                                   being questioned by an FBI
                                                                   is
         agent while sitting handcuffed in the back of a police car is, indeed,
         not free to leave. We have no trouble concluding that Henley ‘had
         been taken into custody or otherwise deprived of his freedomof action
         in [a] signiﬁcant way.’

United States        v.   Henley, supra, 984 F.2d at 1042.

         The    court     went on     to hold that the         FBI questioning was not only         custodial


but also constituted interrogation. United States                        v.   Henley, 984 F.2d 1040, 1043

(9"‘ Cir.   1992).

         Relying on Balentine            v.   State, 71    S.W.3d        76.3 (Tex.   Crim. App. 2002), the

court of appeals in this case concluded that Petitioner’s detention in a police car


                                                          11
while handcuffed was reasonable and did not amount to an unlawful                                      arrest.


(Appendix Slip Op.            at 14)   That case     is   factually distinguishable         from the   instant


one. In Balentine, the ofﬁcer began investigating a report of gunﬁre from a                            knovm

informant.       He   ﬁrst   watched defendant        try to      evade an encounter, then repeatedly

caught him in various           lies   and contradictions as Balentine allowed the officer                   to


chauffer   him    to the address of       someone who could vouch                 for his identity.    As   the


situation developed to the point           where the           officer felt the   need   to frisk Balentine a


second time, he handcuffed the                  latter as      he took him out of the patrol car and

conducted a second, more thorough pat-down search and found a                                    bullet.    The

officer ultimately released Balentine               on the      instruction of a supervisor.       Balentine

v.   State, 71   S.W.3d 763, 767 (Tex. Crim. App. 2002).

         In this case, the officers responding to a call                   by an unknown informant did

not   ﬁnd evasive      actors in the apartment parking              lot.   Every one they handcuffed and

placed in separate patrol cars had no outstanding warrants. The officers found no

weapons     to corroborate the         unknown inforrnant’s           tip.   They found no guns or drugs

in the white pick-up truck they searched.                        As one      officer questioned Petitioner


about his connection to a Black Dodge                 Magnum they spotted, the others conducted

a plain view search through               its    passenger        window and saw marijuana on               the


console inside. Because Petitioner did not have a key to the vehicle that was not




                                                          12
registered to him, the officers called a       tow    truck,   and asked the driver   to   open the

Dodge    so they could retrieve the drugs.

        What the     court of appeals has ruled in this case      is   the following: If you are a

black   man     standing next to a white pick-up truck in an apartment parking lot in

Acres   Homes       at   4:00 a.m, a call from an unidentiﬁed individual that a black

person, or 3 or 4,       is   doing drugs and loading guns next to a white pick-up            at that


location will give the police reasonable suspicion to detain             you by handcufﬁng you

and locking you          in a patrol car while they investigate the         anonymous      tip.   That

detention, moreover, does not arise to the equivalent of an arrest. That holding                      is



untenable in light of the United States Supreme Court’s decisions in both Illinois                    v.



Wardlow, 528        US.       119, 124 (2000) and     Alabama    v.    White, 496, U.S. 325, 329


(1990). For those reasons, this Court should review the lower court’s decision and

reverse   it.   Texas Rule of Civil Procedure    66.3(c).


                                         Prayer for Relief

           WHEREFORE, PREMISES CONSIDERED,                            Petitioner respectﬁilly asks


this   Court to sustain Petitioner's grounds for review on the Miranda issue and

reverse the judgments of the Fourteenth Court of Appeals and the                 trial court.     In the


alternative, Petitioner asks this       Court to sustain his grounds for review on both the

ﬁrst and second issues, and then            remand     this case to the      Fourteenth Court of

Appeals for ﬁirther proceedings consistent with the Court’s decision.



                                                 13
                                                Respectfully submitted,



                                                   é(4mu/,,_(,Lﬂs£nc/27/"“""‘/h‘
                                           By:
                                                     MICHAEL A. MCENRUB
                                                      TBC #13589050
                                                      639 Heights Boulevard
                                                      P.O. Box 70978
                                                      Houston, Texas 77270-0978
                                                      (713) 862-1975
                                                      (713)864-8587 FAX
                                                      mmcenrue@justice.com
                                                 ATTORNEY FOR PETITIONER




                           Certiﬁcate of Compliance

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3),    I   hereby certify that

The word count   in the foregoing Appellant’s Petition for Discretionary         Review

calculated under Rule of Appellate Procedure 9.4(i)(2) without allowance under

Texas Rule of Civil Procedure   9.4(i)(l), is   3,069 words.




                                                  g(/wag.”
                                                       Michael A. Mclfnrue



                                          14
                                Certiﬁcate of Service

      I   hereby certify that a true copy of the foregoing Petition for Discretionary

Review was     sent to   the following parties or counsel of record   thiﬁ day     of

January, 2014 by mail in compliance with Rules 9.5        &   68.11, Texas Rules   of

Appellate Procedure:

      Eric Kugler
      Assistant District Attorney
      1201 Franklin
      Houston, Texas 77002

      State Prosecuting Attorney
      P.O.   Box 12405
      Austin, Texas 78711




                                               d,.,,z.M%4n,:,,4..a
                                                     Michael A. Mc_Elnrue
APPENDIX
           -
               v



Abatement Order filed January 7, 2014.
                                                                                                    R
                                                In The

                         3lun1'It2rIﬂ1¢'m1rfnfApr;12ﬂn

                                     NO. 14»-13-00725-CR


                       JASON MICHAEL PLACIDE, Appellant
                                                 V.

                           1'31:    spire or TEXAS, Appellee

                        On Appeal rroxygié ism District Court
                                           ~~
                                     Harifis County,          Texas

                                                                                                        Q
                            Trial Courif            "Le?   No. 331950130
                                           ~~
                                                       ~
                                                            "l

                                                                 IE5‘-lib                       1   Q
                                ABATEIVIENT ORDER

        The trial court failed .t6-‘submit ﬁndings of fact and conclusions of law on the
voluntariness of appellant’s statement. Article 38.22, section 6 of the Texas                       Code
of Criminal Procedure requires the          trial     court to   make   written fact ﬁndings and

conclusions of law as to whether a challenged statement was                     made     voluntarily,

even   if appellant   did not request them or object to their absence. Tex.              Code Crim.
Proc. at. 38.22 § 6; Urias     v.   State, 155    S.W.3d 141,      142- (Tex.   Crim.                    .
                                                                                                ¥'04
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             1




The     statute is   mandatory and the proper procedure to correct the error            is    to abate

the appeal and direct the       trial   court to   make   the required ﬁndings and conclusions.

See Tex. R. App. P. 44.4; Wicker            v. State,   740 S.W.2d 779, 784 (Tex. Crim. App.
1987).

         Accordingly, the     trial   court is directed to reduce to writing     its   ﬁndings of
fact    and conclusions of law on the voltmtariness of appel!ant’s statement and have
a supplemental clerk’s record containing those findings ﬁled with the clerk of this
Court within thirty days of the date of this order.           3 '1! '10 ,4
         The appeal is    abated, treated as a closed case,      and removed from      this   Court’s

active docket.       The appeal will be reinstated on this Court's      active docket    when the
trial   court’s ﬁndings     and recommendations are ﬁled in this Court. The Court will
also consider an appropriate motion to reinstate the appeal ﬁled            by either party.

                                           PER CURIAM
                                                                                                               P3
                                                       35341;

THE sun: or TEXAS                                       x                      [N THE    180"‘
vs.                                                     x                      DISTRICT COURT or
JASON MICHAEL PLACIDIZ                                  x                      HARRIS couwrv, TEXAS

                         F      INGS OF FACT AND                 N            ONS OF LAW
BE IT      REMEMBERED      that on July 22, 2013 this Court conducted an evidentiary hearing,
pursuant to the Defendant’s       MOTION TO  SUPPRESS. Speciﬁcally, the Defendant sought to
suppress, “all evidence seized on 7-6-2012 uneonscnted in the search of a Black dodge Magnum
vehicle at 5700 Gulf bank.” During the aforementioned hearing, in addition to urging the
suppression of physical evidence, the Defendant also urged suppression of certain orai
statements, although such statements were           NOT
                                                  mentioned in the              MOTION TO
                                                                                   SUPPRESS.
At the conclusion of said hearing, this Court denied the aforementioned            MOTION TO
SUPPRESS._'I'his Court makes the following FINDINGS OF FACT                       AN
                                                                           D CONCLUSIONS
OF LAW     with regard to       BOTH
                                  the physical evidence seized and the oral statements made by
the Defendant, while not conceding that the consideration of such statements was properly before
the Court based on the aforementioned           MOTION TO
                                                        SUPPRESS:

                                                  FINDINGS OF FACT
      1.   The Defendant, Jason Michael Placide, was charged by indictment in the above styled and
           numbered cause with the felony offense of Possession of a Controlled Substance.
      2.   Oﬂioers Joseph Little and Matthew Little of the Houston Police Department arecredible and
           reliable witnesses   who testiﬁed trrrthtirlly at the hearing regarding Defendant’s Motion To
           Suppress Evidence.
      3.   On   July 6, 2013, at approximately 4:00       am. a      report   was made   to the Houston Police

           Department    that three to four black ma]         were standing    in the area   of a white truck and a
           black   Dodge Magnum       at   8034 Antoine, Houston, Harris County, Texas, in possession of
           narcotics   and weapons.
      4.   On July 6, 2013, shortly aﬁer 4:00 a.m., Ofﬁcers Joseph Little and Matthew Little responded
           to the reported disturbance at 8034 Antoine, Houston, Harris County, Texas, involving three

           to four black   males allegedly    in possession   of narcotics and Weapons in the nreaof a white
           truck and a black   Dodge Magnum.
      5.   8034 Antoine, Houston, Harris County, Texas, is in a high crime area known for narcotics,
           and the ofﬁcers arrived on scene at approximately 4:00 a.rn., in the hours of darkness.
      When the officers arrived at 8034 Antoine, Houston, Harris County, Texas, they observed
      three biack   males in the area of a white        truck,   and a black Dodge      Magnum within three
      parking spaces of the white truck, confirming several pieces of information ﬁorn the report.

      The oﬂieers brieﬂy detained each of the three men, includingthe Defendant, Jason Plaeide,
      in order to safely investigate and ensure the continued presence of the suspects in the scene.

      At the time the Defendant was detained, the scene of the investigation was not yet secure,
      and the officers could not be certain whether there were unsecured weapons in the area.
9.    There was no signiﬁcant show of force during the investigative detention.
10.   As part of the detention, the Defendant was frislted for weapons, handcuffed, and placed in
      the   back of a patrol     car.

ll.   While conducting       their brief investigation with the help        of a third HPD oﬁicer, Oﬁicers
      Joseph    Little   and Matthew     Little   looked into the window of the black Dodge           Magnum
      vehicle (with the aid of a 360 lumen flmhlight) ﬁom outside the vehicle, and observed what

      they both believed to be marijuana, based on their training and experience.

12.   The Defendant admitted to officers           that the   black Dodge   Magnum was the vehicle he had
      been driving and that he lived at the same address where the vehicle was registered.
l3.   The Defendant was an-rated aﬁer the discovery and recovay of the marijuana, and after he
      was linked to the black Dodge Magnurn through his statements.
                                         QONQLQ $038 OF LAW
      The officer’: testimony established speciﬁc, articulable             facts (the confirmed details    of the

      call,   the nature of the high crime area, time of night, and presence of the suspects in

      suspicious circumstances) and reasonable inferences substantial                       enough   to support

      reasonable suspicion that the suspects had b               engaged    in criminal activity.

      The investigative     detention of the Defendant         was lawful, in order to ensure officer safety,
      maintain the status quo, and ensure the continued presence of the Defendant during the

      course of a brief investigation, taking into consideration the nature ofthe area, time of night,

      and veriﬁed    details     of the call. State v. Sheppard, 27l S.W.3d 28l, 291 (Tex. Crim. App.
      2008); Chamber:       v.   State, 397   S.W.3d 777 (Terr. App.-Houston        [!4"‘   Dist} 2013).
   3.   The marijuana in the black Dodge Magnum was in plain view and immediately reeogniuble
        to the oﬂiccts as contraband,   and the officers involved viewed the marijuana from a location
        where they were legitimately and lawfully present.
   4.   The   officers involved   had probable cause to search the black Dodge Magnum, and the
        seizure of the narcotics without a warrant was lawful under the automobile exception.

   5.   Probable cause to arrest the Defendant did not exist prior to his statements linking him to the

        black   Dodge Magnum.
   6.   The officers used only a minimal amount offorce required to investigate, maintain the status
        quo, and ensure oﬁicet‘ safety.
   7.   The statements of the Defendant in regards to his connection to the black Dodge Magnum
        were made during an investigative detention that had not evolved into custodial interrogation,
        and therefore are admissible pursuant to Article 38.22 of the Texas Code of Criminal
        Procedure.



                                               ELISE

IT IS HEREBY ORDERED THAT THE FOREGOING FINDINGS OF FACT AND
CONCLUSIONS OF LAW be made a part of the record in this cause pursuant to the Team
Code of Criminal Procedure.



                     SIGNED AND ENTERED this 10" day ofMarch, 2014
                                                                                                   ED
                                                                                            Img.Lngnltl      '




                                                                                            glutrlct clerk


                                   ‘77?«/Lb/3/b«cu«._
                                           Marc W. Brown            _
                                                                                   W9"
                                                                                           MAR 1 0 7.014

                                                                                                  "'9'"
                                                                                                          ',,_,


                             1
                             .3     Sittingbx assignment for the
                                         130 District Court
                                        Harris County, Texas
                             /,
Order ﬁled January 7, 2014, Withdrawn, Appeal Reinstated and Order ﬁled
March     18,   2014




                                            NO. 14-13-00725-CR

                          JASON MICHAEL PLACIDE, Appellant
                                                    V.

                                THE STATE OF TEXAS, Appellee

                           On Appeal from the 180th District Court
                                       Harris County, Texas
                                  Trial Court Cause No. 1353416


                                                 ORDER
         On   January      7,   2014,   this   Court issued an order abating the appeal and
directing the    trial   court to submit ﬁndings of fact and conclusions of law on the

voluntariness of appelIant’s statement.

         On March        14, 2014, a supplemental clerk's record     was ﬁled containing the
trial   court’s ﬁndings         of   fact   and conclusions of law. Therefore., our order of
January   7,   2014,   is   withdrawn. The appeal   is reinstated.   The   State’s brief   is   due
April 17,2014.

                                           PER CURIAM
Affirmed and        Memorandum Opinion ﬁled September 25, 2014.




                                           In   The

                        Ellnurteeutli (Enurt nf         Appeals

                                   N0. 14-13-00725-CR

                       JASON MICHAEL PLACIDE, Appellant
                                                V.

                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 180th District Court
                                  Harris County, Texas
                             Trial Court Cause No. 1353416


                     MEMORANDUM OPINION
      Appellant Jason Michael Placide appeals his conviction for possession of
cocaine. In   two   issues, appellant argues the trial court erred in   denying   his   motion
to suppress   because (I) the officers lacked reasonable suspicion to detain him; and

(2) his statement      was made     as a result of custodial interrogation and            was
inadmissible under article 38.22, section 3 of the Texas                Code of Criminal
Procedure.    We affirm.
                                                BACKGROUND
         Appellant was indicted for possession of between one and four grams of
cocaine. See Tex. Health            &   Safety    Code    § 481.1 l5(c). Appellant ﬁled a pretrial
motion to suppress          in   which he argued      that a   Houston Police   officer “broke into”

his vehicle       and searched the vehicle without consent. Appellant argued              that “[a]ny

controlled substances found in the vehicle” should be suppressed because the

search   was without a warrant and without probable                  cause. Appellant also sought
suppression of “[a]ny other matters that the Court ﬁnds should be suppressed upon
hearing of this motion.” Appellant argued that the evidence should be suppressed

because (1) the narcotics were not in plain view in the vehicle; and (2) the vehicle
search was not incident to a lawful             arrest.


         At the hearing on appellant’s motion             to suppress Officer   Joseph Little of the
Houston Police Department               testified that at      approximately 4:00 a.m. on July      6,

2012, he was patrolling the north side of Houston in an area                    known   for narcotics

and crime.        He   received a dispatch call for a disturbance at an apartment complex

located at 8034 Antoine.           The 911      caller reported three or four    African-American
males using narcotics and loading guns while standing outside a white truck near a
black   Dodge Magnum. When               Little arrived at the     apartment complex he observed
three African-American males standing outside of a white pickup truck near a

black   Dodge Magnum. He            identiﬁed appellant as one of the       men he saw that night.
Because     Little     had received      a report that the       men were   loading weapons, he
detained    all   three   men, handcuffed them, and placed them          in separate patrol cars.

        In conducting his investigation, Little shined a ﬂashlight into the black

Dodge Magnum, and observed                narcotics on the car’s console. Little        saw   a bag of
marijuana and a bag of clear            pills   with no label on them. Little asked appellant       if

the black   Dodge Magnum was his car, and appellant “admitted that that was his                   car

                                                      2
and he had been driving              it   and he    lives at the registered address.”          Appellant was
arrested after the marijuana and pills                       were discovered        in the vehicle. After

appellant       was    arrested, officers     found crack cocaine in the vehicle. The                  pills also

tested positive for cocaine.

             On cross-examination,         Little testiﬁed that        he did not know the     identity   of the
911    caller.   The ofﬁcers searched -all three men, but did not ﬁnd weapons.

             Officer   Matthew was         also   on the scene and testiﬂed           to the   same     events.’

Matthew         Little testiﬁed that the three        men were         detained because the     call   reported
they were loading weapons. The                men were handcuffed for officer safety and placed
in the patrol cars so they                could not ﬂee the scene until the investigation was
complete.

             Appellant testiﬁed that the car belonged to his mother and he had no
knowledge of drugs           in the car.    On cross-examination,             appellant admitted   more than
one prior conviction for possession of controlled substances but could not
remember an exact number of prior                    convictions. Appellant believed he            was under
arrest at the     time he was handcuffed and placed                in   the patrol car.

         During his closing statement, appellant’s counsel argued that (1) appelIant’s
statement that he           owned   the car should be excluded because he                 was under       arrest

and officers did not read his It/ﬁranda                     rights;2    and   (2) the evidence should         be
excluded because the search was warrantless and not a proper inventory search
incident to arrest.         The   State argued that the ofﬁcers           had reasonable suspicion of a
threat to their safety as a result                of the potential weapons reported            in the police

dispatch. Officers detained appellant                  and the other individuals for            their safety

         '
             We refer to Joseph Little as ‘‘Little'’ throughout this opinion and refer to Matthew Little
as   "Matthew    Little.”
        2
             See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

                                                        3
while they conducted an investigation. The investigation revealed marijuana in
plain   view on the console of the black Dodge Magnum. The State                     further argued
that appellant’s          argument about his statement   fell   outside the scope of the hearing.

        The       trial   court   made ﬁndings of    fact   and conclusions of law with the
following preface:

        During the aforementioned hearing, in addition to urging the
        suppression of physical evidence, the Defendant also urged
        suppression of certain oral statements, although such statements were
        NOT mentioned in the MOTION TO SUPPRESS. At the conclusion
        of said hearing, this Court denied the aforementioned MOTION TO
        SUPPRESS. This Court makes the following FINDINGS OF FACT
        AND CONCLUSIONS OF                  LAW
                                            with regard to BOTH the physical
        evidence seized and the oral statements made by the Defendant, while
        not conceding that the consideration of such statements was properly
        before the Court based on the aforementioned MOTION TO
        SUPPRESS:
        Findings of Fact

        1.   The Defendant, Jason Michael Placide, was charged by indictment
        in   the above styled and numbered cause with the felony offense of
        Possession of a Controlled Substance.
        2. Officers  Joseph Little and Matthew Little of the Houston Police
        Department are credible and reliable witnesses who testified truthfully
        at the hearing regarding Defendant’s Motion To Suppress Evidence.

        3.   OnJuly 6, 2013, at approximately 4:00 a.m. a report was made to
        the Houston Police Department that three to four black males were
        standing in the area of a white truck and a black Dodge Magnum at
        8034 Antoine, Houston, Harris County, Texas, in possession of
        narcotics and weapons.
        4.   OnJuly 6, 2013, shortly after 4:00a.m., Ofﬁcers Joseph Little and
        Matthew Little responded to the reported disturbance at 8034 Antoine,
        Houston, Harris County, Texas, involving three to four black males
        allegedly in possession of narcotics and weapons in the area of a white
        truck and a black Dodge Magnum.
        5.   8034 Antoine, Houston, Hairis County, Texas,               is in   a high crime

                                                 4
area       known              and the officers arrived on scene
                   for narcotics,                                        at
approximately 4:00 a.m., in the hours of darkness.
6.    When the officers arrived at 8034 Antoine,
                                             Houston, Harris County,
Texas, they observed three black males in the area of a white truck,
and a black Dodge Magnum within three parking spaces of the white
truck, conﬁrming several pieces of information from the report.

7.    The
       officers brieﬂy detained each of the three men, including the
Defendant, Jason Placide, in order to safely investigate and ensure the
continued presence of the suspects at the scene.
8.    Atthe time the Defendant was detained, the scene of the
investigation was not yet secure, and the oﬁicers could not be certain
whether there were unsecured weapons in the area.
9.    There was no signiﬁcant show of force during the investigative
detention.

10.    As   of the detention, the Defendant was frisked for weapons,
            part
handcuffed, and placed in the back of a patrol car.
11.   While conducting   their brief investigation with the help of a third
HPD     ofﬁcer, Officers Joseph Little and Matthew Little looked into the
window of the black Dodge Magnum       vehicle (with the aid of a 360
lumen ﬂashlight) ﬁom outside the vehicle, and observed what they
both believed to be marijuana, based on their training and experience.
12.   The Defendant admittedto officers that the black Dodge Magnum
was the vehicle he had been driving, and that he lived at the same
address where the vehicle was registered.
13.   The Defendant was  arrested after the discovery    and recovery of
the marijuana, and after he was linked to the black      Dodge Magnum
through his statements.
Conclusions of Law
1.   The ofﬁcer’s testimony  established speciﬁc, articulable facts (the
confirmed details of the call, the nature of the high crime area, time of
night, and presence of the suspects in suspicious circumstances) and
reasonable inferences substantial enough to support reasonable
suspicion that the suspects had been engaged in criminal activity.
2.   The
       investigative detention of the Defendant was lawful, in order to
ensure officer safety, maintain the status quo, and ensure the
continued presence of the Defendant during the course of a brief

                                     5
         investigation, taking into consideration the nature of the area, time of
         night, and veriﬁed details of the call. State v. Sheppard, 271 S.W.3d
         281,291 (Tex. Crim. App. 2008); Chambers                       v.   State,   397 S.W.3d 777
         (Tex. App.—Houston [14th Dist.] 2013).
         3.   The marijuana    black Dodge Magnum was in plain view and
                                    in the
         immediately recognizable to the officers as contraband, and the
         ofﬁcers involved viewed the marijuana ﬁom a location where they
         were legitimately and lawfully present.
         4.   The                had probable cause to search the black Dodge
                      officers involved
         Magnum, and the seizure of the narcotics without a warrant was
         lawful under the automobile exception.
         5.   Probable cause to arrest the Defendant did not exist prior to his
         statements linking him to the black Dodge Magnum.
         6.   The      officers    used only a minimal amount of force required to
         investigate, maintain the status quo,      and ensure officer safety.
         7.   The statements of the Defendant in regards to his connection to the
         black   Dodge Magnum were made during an investigative detention
         that    had not evolved
                               into custodial interrogation,                     and therefore are
         admissible pursuant to Article 38.22 of the Texas                       Code of Criminal
         Procedure.
                                            STANDARD or REVIEW
         We      review a        trial   court’s denial of a       motion      to suppress for    abuse of
discretion.      Johnson    v.    State,   414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Thomas
v.   State,   297 S.W.3d 458, 459 (Tex. App.~Houston [14th Dist] 2009,                          pet. ret’d).

We     review the evidence               in the light   most favorable         to the trial court’s ruling.

Gutierrez       v.   State, 221    S.W.3d 680, 687 (Tex. Crim. App. 2007). The                trial   court   is

the exclusive factﬁnder and judge of the credibility of the witnesses. State                          v.   Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Turner v. State, 252 S.W.3d 571, 576
(Tex. App.——l-louston [14th Dist.] 2008, pet. refd).                             We    afford almost total

deference to the          trial   court’s determination of historical facts supported by the

record, especially         when      the   trial   court’s ﬁndings are based           on an evaluation of
credibility      and demeanor. See Guzman                v.   State,   955 S.W.2d 85, 89 (Tex. Crim.
                                                         6
    App. 1997).   We afford the same amount of deference to the trial court’s ruling on
mixed questions of law and            fact if the resolution     of these questions tums on an
evaluation of credibility and demeanor. Id.             We   review questions not turning on
credibility   and demeanor de novo.           Id. If the trial court’s decision is correct                under
any theory of law applicable to the case, the decision will be sustained. Estrada                                   v.

State,   154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

                                    PRESERVATION or ERROR
         In his first issue appellant argues his statement                was the   fruit    of a Fourth
Amendment          violation because the officers did not have reasonable suspicion to

detain him.       The   State argues appellant failed to preserve error with regard to the

denial of his motion to suppress his statement because appellant’s written motion

to suppress only sought to suppress the physical evidence recovered                    from the car,

         A   motion to suppress        is    a specialized objection to the admissibility of

evidence and must be timely and sufficiently speciﬁc to inform the                          trial    court of

the complaint. Johnson        v.   State, 171   S.W.3d 643, 647 (Tex. App.—Houston [l4th
Dist.) 2005, pet. refd).       To preserve      error for appellate review, an appellant                   must
“let the trial    judge know what he wants,        why he thinks himself entitled to                it,   and   .    .




.   do so clearly enough for the judge to understand him             at   a time when the      trial      court
is   in a proper position to       do something about     it.”   Lankston     v.   State,    827 S.W.2d
907, 909 (Tex. Crim. App. 1992).

         Appellant’s written. motion speciﬁcally sought to suppress the physical

evidence recovered from the           car,   and vaguely sought suppression of “[a]ny other
matters that the Court ﬁnds should be suppressed                 upon hearing of this motion.”
During the oral hearing on appellant’s motion           to suppress, appellant argued that his

statement should be suppressed because he was in custody at the time he                              made       it

and oﬁicers did not inform him of his Miranda              rights.    We assume       for purposes              of
                                                   7
the analysis below that appellant’s argument at the hearing regarding suppression

of his statement sufficed to preserved                  error.

          Appellant also argues on appeal that the officers lacked reasonable suspicion
to detain       him and     that his statement              was an impermissible        fruit   of   that Fourth

Amendment violation. Appellant did not bring such                             a contention to the attention of
the    trial   court either in his written motion to suppress or during the oral hearing; he

did not ask the         trial   court to decide the issue of reasonable suspicion and issue a

ruling.    His motion failed to preserve his contention on appeal because                             it   did not
alert the trial court that          he wished the issue to be decided. See Tex. R. App.                          P.

33.l(a)(1) (requiring, in order to preserve error, sufficient speciﬁcity to                           make     trial

court aware of complaint and ruling                    by court on complaint); Broxton           v.   State,   909
S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding                                  that issue   on appeal must
comport with complaint made                    at trial).


          On    appeal, appellant argues the officers failed to corroborate the facts of the

dispatch that indicated the occurrence of criminal activity. Appellant did not                               make
this   argument to the          trial   court; instead,          he argued that the search of the vehicle
was improper because             (1) the officers could not             have seen the contraband           in plain

view, and (2) the search was not conducted as a proper inventory search after
arrest.    We     conclude that appellant did not preserve this contention for appeal
because neither his written motion nor his arguments                          at the hearing alerted the trial

court to a contention that the officers lacked reasonable suspicion justifying an

investigation. Additionally, appellant did not secure a ruling                         on such a complaint.
See Tex. R. App. P. 33.1(a)(l); Swain                       v.   State, 181   S.W.3d 359, 365 (Tex. Crim.
App. 2005) (concluding                  that   when     appellant failed to object to admission of

statement        at   motion-to—suppress hearing on ground for suppression raised on

appeal, but instead, argued a different basis for suppression, issue                                   was not
preserved);    Mbugua        v.   State,   312    SW3d 657, 666-67 (Tex. App.—Houston                         [lst

Dist] 2009, pet. refd) (holding that appellant did not preserve his complaint
regarding admissibility of his custodial statement because complaint on appeal did

not comport with grounds argued in motion to suppress).                            We overmle appe1lant’s
first issue.


                                                   CUSTODY
         In his second issue, appellant argues his statement concerning ownership of

the car   was the product of a custodial             interrogation. Appellant argues the statement

was inadmissible because he did not receive warnings under Miranda.

         The Fourth Amendment and                   article     38.22 of the Texas Code of Criminal
Procedure allow admission of noncustodial statements. See,                                e.g.,   Miranda, 384
U.S. at 444; Dowthitf v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). Thus.

to determine         whether      appell-a.nt’s    statement about ownership of the car was

admissible,    we must       first   detennine the point at which ofﬁcers placed appellant in
custody.

         A police ofﬁcer may stop and brieﬂy                     detain a person reasonably suspected

of criminal activity in the absence of probable cause to arrest the person. Terry                              v.

Ohio, 392      US.     l,   22 (1968). The officer              may     use such force as         is   reasonably
necessary to effect the goal of the stop: investigation, maintenance of the status

quo, or ofﬁcer safety. Rhodes              v.    State,   945 S.W.2d 115, 117 (Tex. Crim. App.),
cert.   denied, 522 U.S. 894 (1997). There                 is   no    bright-line, test   providing that mere
handcufﬁng      is    always the equivalent of an                     arrest. Id. at 118. Instead,         when
evaluating whether an investigative detention                    is   unreasonable,       “common      sense and
ordinary   human experience must govern over rigid criteria.” Ia’.

        A police 0fficer’s interaction with a citizen can be classified as an encounter,
detention, or arrest. See State             v.    Castleberry, 332     S.W.3d 460, 466 (Tex. Crim.
App. 2011). “A person             is   arrested   when he has been     actually placed under restraint

or taken into custody by an officer or person executing a warrant of arrest, or by an

officer or person arresting without a warrant.” Tex.                    Code. Crim. Proc.       art.   1522;
Mount v.       State,    217 S.W.3d 716, 724 (Tex. App.——I-Iouston [14th                   Dist.]   2007, no
pet.).   But      this restraint-of—liberty standard is         not adequate        when    distinguishing
between an           arrest   and a detention because       it is   a characteristic      common    to both.

Mount, 217 S.W.3d              at 724. Rather, the distinction is       a matter of degree depending
on the length of the            detention, the      amount of force employed, and whether the
ofﬁcer actually conducted an investigation.                 Id.;    Woods   v.   State,   970 S.W.2d 770,
775 (Tex. App.-Austin 1998,                 pet. refd).


         A court must detennine reasonableness from the perspective of a reasonable
officer at the scene,          making allowances       for the fact that officers         must often make
quick decisions under tense, uncertain, and rapidly changing circumstances.

Rhodes, 945 S.W.2d              at 118.   Relevant factors in the reasonableness inquiry are the
nature of the crime under investigation, the degree of suspicion, the location of the

stop, the time         of day, the reaction of the suspect, and whether the officer actually
conducted an investigation aﬁer seizing the suspect. Mount, 217 S.W.3d                               at   725;
Chambers        v.   State,   397 S.W.3d 777, 782 (Tex. App.—Houston [14th                    Dist.]   2013,
pet. refd).


         The   trial   court found that “[t]he investigative detention of the Defendant                   was
lawful, in order to ensure officer safety, maintain the status quo, and ensure the

continued presence of the Defendant during the course of a brief investigation,
taking into consideration the nature of the area, time of night, and veriﬁed details

of the   call.”


         During the suppression hearing,              Little testiﬁed that       he received a dispatch

                                                       10
describing three or four African—American males using drugs and loading weapons

near a white pickup truck and a black          Dodge Magnum             at   8034 Antoine. When the
ofﬁcers arrived at 8034 Antoine, they observed three African-American males

standing around a white pickup truck with a black                 Dodge Magnum parked              nearby.
For ofﬁcer safety the ofﬁcers patted down the three men, handcuffed them, and
placed them in separate patrol cars. Little testiﬁed that although they found no
weapons during the pat-down search the handcuffs were necessary                        for the ofﬁcers’

safety,   and detention   in the patrol cars   was necessary           to prevent the suspects          from
ﬂeeing. The ofﬁcers then shined a ﬂashlight into the white pickup truck and the

black     Dodge Magnum.      In response to Little’s question, appellant admitted the

Dodge Magnum was his vehicle.

         Although   Little detained appellant in the patrol car                  with handcuffs, the
amount of force was reasonable under the circumstances. The                       incident took place

at   4:00 a.m. in a parking lot in a high-crime area where Little had previously

responded    to narcotics   and weapons     calls. Little       conducted a brief investigation in
which he discovered narcotics        in    a car appellant admitted              to   be   his.   The   trial

coutt’s finding that Little did not use          more force than reasonably necessary                     to

protect himself and those around         him during his        brief investigation is supported          by
the evidence at the hearing. See Balenline            v.   State, 71   S.W.3d 763, 771 (Tex. Crim.
App. 2002) (handcufﬁng and escorting appellant                    to patrol car did not transform

investigative detention into arrest      where    officer      had reasonable concem for safety
because he was investigating crime involving a weapon).

         Appellant argues the ofﬁcers depri\ ed him of his freedom to a degree
comparable to a formal      arrest. In   support of his argument, appellant cites Ramirez
v.   State, l05   S.W.3d 730, 740 (Tex. App.—Austin 2003, no                      pet.),    and Alford    v.

State,   22 S.W.3d 669, 672 (Tex. App.—Fort Worth 2000,                      pet. ref’d).   Ramirez and

                                                 ll
Alford are distinguishable.

         In Ramirez,       an officer      who    arrived at Ramirez’s         home      in     response to a
neighbor’s complaint noticed marijuana paraphernalia, marijuana residue, and the

odor of marijuana as Ramirez stepped out of the garage and closed the door behind
him. 105 S.W.3d at 735.             A second individual, Reynosa, exited the garage and left
the door partially open.            Id.   at 736.   The    officer called for         back-up because he
recognized Reynosa as a suspect in a shooting and became concerned that Reynosa
or Ramirez       may have had weapons.              Id.    Reynosa was subjected           to    a pat down,
which revealed        a knife   and a plastic bag containing marijuana.                  Ia’.   Reynosa was
arrested and     moved away from the             garage. Id. Ramirez         was    also subjected to a pat

down; while conducting the pat down, the                      officer told     Ramirez he was being
detained and placed him in handcuffs.                Id.    The   officer informed        Ramirez     that   he
could see drug paraphernalia and drug residue in the garage and asked, “Is there

anything else I’m going to fmd in there that’s                    illegal,   any more marijuana?"            Id.

Ramirez    replied, “Well,      I   guess there’s some pot in the red cooler.” Id.

         The Austin Court of Appeals determined                   that   Ramirez was     in custody at the

time the officer asked whether he was going to find anything else in the garage
because a reasonable person                 in   Ramirez’s position would likely believe his
freedom of movement had been restrained to the degree associated with an                               arrest.

Id. at   740.   The   court determined that by            handcufﬁng Ramirez,          telling    him he was
being detained, and informing him that they had seen                      illegal   items in the garage, a
reasonable person would have thought he was under arrest.                      la’.



         The    facts in   Ramirez are distinguishable because Ramirez was near                              his

home; had been told he was being detained; and knew the ofﬁcers had seen                              illegal

contraband in his garage. In contrast, the ofﬁcers in this case had a report that there
were weapons being loaded and the men were                    in a   parking    lot in   a high crime area

                                                     12
after dark.       In Ramirez, unlike this case, the officers did not conduct an

investigation after detaining Ramirez.

         In Alford, the appellant             was seen driving on an          interstate      highway passing
cars and    weaving       in   and out of lanes.   Id. at   671.   A police officer activated his siren
after following Alford’s truck for a distance; Alford                   responded by turning off the
interstate      highway and       into the    back of a mobile home park.            Ia’.     When    Alford did
not heed the ofﬁcer’s request to get out of the truck, the officer pulled Alford out

of the truck; placed him on the ground; handcuffed him; and called for back-up.                                Id.

When back—up            arrived six or seven minutes later, Alford             was   still    in handcuffs    and
the arriving officer asked whether he had been drinking.                               Ia’.       at 672.   Alford
admitted drinking six beers.            Id.


         The Fort Woith Court of Appeals held that Alford was                        in custody at the time

he admitted to drinking six beers. The court emphasized that by removing Alford
from the vehicle, placing him on the ground, handcuﬂing him, and holding him for
back—up      officers, the      circumstances were elevated beyond those of an ordinary
traffic stop. Id. at 673.


         Alford    is   distinguishable because Alford             was physically removed from                 his

truck, placed      on the ground, and handcuffed following a                     traffic stop. Id. at 671.

Alford then remained handcuffed for six or seven minutes until another officer
arrived    on the scene who questioned him about                     his alcohol consumption. Id. at

671-72. In Alford, as             in   Ramirez, no investigation took place, and Alford was
“subjected to treatment that resulted in his being in custody for practical purposes.”

Id. at   673.

         The    facts here are closer to Balentine           v.   State, 71    S.W.3d        at   767. Balentine
was placed        in handcuffs         and escorted to a patrol car while being questioned.
Before placing Balentine in the patrol               car,   an officer frisked him and did not ﬁnd

                                                      13
any weapons.      Id.   Despite ﬁnding no weapons, the officer handcuffed Balentine,
placed him in a patrol      car,    and drove Balentine to a friend’s home.      Ia’.   Before being
released Balentine        was patted down a second time and handcuffed                    for ofﬁcer

safety despite the fact that the officer did not        ﬁnd any weapons.        Id.     The Court of
Criminal Appeals concluded that Balentine’s detention was not an arrest based on
the circumstances surrounding the investigation.           Id. at    771.   The court determined
that the detention      was temporary and that the handcuffs and placement               in   the patrol

car did not elevate the temporary detention to an arrest because the officer

encountered Balentine in an area where gunﬁre had been reported; Balentine
exhibited suspicious behavior; and the restraint           was necessary       for officer safety

while investigating Balentine’s possible involvement in gunﬁre.               Id. at    771.

         We conclude that Little’s investigative detention of appellant was reasonable
and justiﬁed under the circumstances and did not constitute an unlawful                   arrest.   The
trial   court did not abuse   its   discretion in denying the   motion to suppress appel1ant’s
oral statement.   We overrule appellant’s second issue.
         We affirm the trial court’sjudgment.



                                               /s/    William   J.   Boyce
                                                      Justice




Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish —- Tex. R. App. P. 472(1)).




                                                 14
                                                                                                                      i\\‘.3EFTED
                                                                                                                ‘I4-I3-O(}7225-C11
                                                                                            FOURTEENTH COURT OF APPEIZ‘.
                                                                                                        HOUSTON. TEXAS
                                                                                                     10/24/2014 4:55:52       FL’!
                                                                                                         '3HRl5TOP‘r|ER PRSN
                                                                                                                          CLERK

                                   NO.   14-1'3‘-O072S.CR

                   IN THE F°‘j_§T5ENTH CQVRT OF APPEAIl§m COFl5ll§'lPO"l=‘
                                                                                              APPEALS
                                     HOUSTON. TEXAS                                 HOUSTON. TEXAS
                                                                                 10/24/2014 4:55:52 PM
                                            * * *
                                                                                 CHRISTOPHER A. PRiNE
                                                                                           Cierk

                               JASON MICHAEL PLACID5.
                                         Appellant,

                                              v.


                                 THE STATE OF TEXAS,
                                          Appellée.




                                                                                                                      ~
                                            Iii!!!

                    Appeal     fmm the 180"‘ Criminal        District Court
                                   Harris County, Texas
                                   (Cause No. 1,353, 446)

                               Mo'1*‘r¥3N?n‘o1*zn1:H”Ei&R1Nc

T0 "ms HONORABLE"_QIf                                 cognr OF APPEALS:                       .




                                                                                                     H




      Appellant Jason Michael Placideimoves this Court far rehearillg lpulsuant                      tO_    _




Rule 49, Texas Rules of A;ppg§}g$<gl’nq€9dur§-        In, .Sli_}1!pQ_1f{   of this motion, Appellant

would respectfully show the Court thaefollbwing:

      In his brief on the merits, Appellant contended that his statement to his

arresting ofﬁcer   was   the             llflliiestilgaﬁvehélefenﬁon that       violated the Fourth

Amendment    for lack of reasonable Eizeﬁicion and also exceeded                     its   permissible

scope. In the altemaltive, Agpellant‘-afgitned        his’   interrogation violated the Fiﬂh
Amendment and Article 38.22 of the Texas Code of Criminal Procedure                        for lack     of

Miranda warnings beforehand.

        After Appellant submitted his             brief,    but before the State had ﬁled one,     this


Court apparently interpreted Appellant's second argument as a challenge to the

voluntariness of his statement           On its oiivn motion, the Court abated this appeal on
January 7, 2014, and directed the            trial   court to   make   written ﬁndings of fact and


conclusions of law on the voluntariness of Appellant's statement, and ordered                      it   to


return those finding to the Court Within thirty days.

        Three months before the Court unilaterally took                    its   action, however, the


governor had elevated the judge of the 180'“ District Court to a position on                       this


Court. Sitting by assignment as the presiding judge of the 180“ District Court, that

justice signed the Findings           of Fact and Conclusions of Law proposed by the State

on March      10,   2014 — eight months       after the conclusion      of the suppression hearing.

The    district clerk   ﬁled   8,   Supplemental Record containing those ﬁndings on March

14, 2014.     Four days   later the     Court reinstated this appeal, and directed the State to

ﬁle its brief within thirty days;

         By   ordering the State to          tile its brief,     and by not giving Appellant an

opportunity to      first re-brief his    appeal as    it   has done in other cases in the past,    this


Court deprived the Appellant of his chance to challenge the trial court’s ﬁndings of

fact   and the reasoning supporting         its   conclusions of law, which this Court included
in    its   opinion verbatim without question. The effort to provide this indigent

defendant a        fair   opportunity to challenge at least once         all   errors arising in his

prosecution should lead this Court to vacate         its   judgment and opinion, and allow

Appellant to re-brief his appeal in light of the           trial   court’s ﬁndings of fact and

conclusions of law. Anything less raises due process concerns. See Tex. R. App. P.

38.7 (“A brief        may be amended      or supplemented whenever justice requires, on

whatever reasonable terms the court         may prescribe").       Wilson      v.   State,   296 S.W.3d

140, 143 (Tex. App.-Houston [14 Dist] 2009, pet. ref'd) (past example). See also

Stewart      v.   Coldwell Banker   & Company, 552 S.W.2d 904, 906 (Tex. Civ. App.-—
Houston [1“ Dist] 1977, writ ref‘d n.r.e.) (lack of prejudice); Costley v. State Farm

Fire and Casualty C0,, 894 S.W.2d 380, 387(Tex. App.-—Amarlll0 1997, writ

denied) (issue arising during appeal).        Cf Reich-Bacat        v.   State,      952 S.W.2d 542,

543 (Tex. Crim. App. 1997) (mandatory opportunity                  to re~brief        on remand from

Texas Court of Criminal Appeals ﬂows ﬁ'om indigent’s right to counsel); Oliver                          v.



State,      891 S.W.2d 651 (Tex. Crim. App. 1995) (same); Theus                v.   State,   863 S.W.2d

489, 491 (Tex. Crim. App. 1993) (same)

            WHEREFORE, PREMISES CONSIDERED,                         Appellant Jason Michael

Placide respectﬁilly asks this Court to grant this Motion for Rehearing, to withdraw

its   Judgment and Opinion, and allow Appellant to re-brief this appeal                  in light   of the
ﬁndings of fact and conclusions of law submitted         in response to        its.   abatement

order.


                                              Respectﬁllly submitted,




                                          By:       A/L    q;-’.(_.g;..«   ‘ﬁg-»z<£q,¢l_,_‘_
                                              MICHAEL A. McENRUE
                                              TBC 13413589050
                                              PO. Box 70978
                                              Houston, Texas 77270-0978
                                              (713) 862-1975
                                              (713) 864-8587
                                              mmcenrue@]ustice.com

                                              ATTORNEY FOR APPELLANT
                             Certiﬁcate of Compliance

         Pursuant to Texas Rule of Appellate Procedure 9.4(i)         (3), I   hereby certify

that the   word count in the foregoing Appel1ant’s Motion        for Rehearing calculated


under Rule of Appellate Procedure   9.4(i) (2) is   734 words.



                                                    L4    '¢='~Cv{.~.,                   \ »S7,.,4-,£A_.._.
                                                       Michael A. McEnrue
                               Certiﬁcate of Service.

      I   hereby certify that a true copy of the foregoing Appel1ant’s Motion for

Rehearing was sent to the following patties or counsel of record this 24th day of

October, 2014    by mail   in compliance with Rules 9.5, Texas Rules of Appellate

Procedure:


      Eric Kugler
      Assistant District Attorney
      1201 Franklin, Sixth Floor
      Houston, Texas 77002




                                             A.     11,4-,¢'r¢.   xeé 4‘! v-/A/:4/5—c.w‘-
                                                   Michael A. McEnrue
