                                                                                      ACCEPTED
                                                                                  02-17-00272-CR
                                                                       SECOND COURT OF APPEALS
                                                                             FORT WORTH, TEXAS
                                                                                5/25/2018 8:21 AM
                                                                                   DEBRA SPISAK
                                                                                           CLERK

                       Cause No. 02-17-00272-CR
                 In the Court of Appeals, Second District
                            Fort Worth, Texas                      FILED IN
                                                            2nd COURT OF APPEALS
                                                             FORT WORTH, TEXAS
                                                            5/25/2018 8:21:57 AM
                          Ricardo Lucio Silva,                   DEBRA SPISAK
                                                                    Clerk
                               Appellant

                                    v.

                          The State of Texas,
                               Appellee

        Appeal from the 89th District Court of Wichita County, Texas
    Trial Cause No. 57,985-C, The Honorable Charles Barnard Presiding

                      Ricardo Lucio Silva’s Brief


                          Benjamin E. Hoover
                    Attorney for Appellant on Appeal
                        1401 Holliday, Suite 400
                       Wichita Falls, Texas 76301
                        State Bar No. 24052682
                          940-322-8200 Phone
                           940-228-3233 Fax
                     bhoover@thenixlawfirm.com

                        Attorney for Appellant
                         Ricardo Lucio Silva

                     Oral Argument Not Requested




	                                   1	
                   Identity of the Parties and Counsel

Ricardo Lucio Silva, Appellant

Benjamin E. Hoover 
Attorney for Appellant on Appeal
1401 Holliday, Suite 400 
Wichita Falls, Texas 76301
bhoover@thenixlawfirm.com

Brennon Brady
Wichita County Public Defender 
Attorney for Appellant at Trial
600 Scott Street, Suite 204
Wichita Falls, Texas 76301
brennon.brady@co.wichita.tx.us

Starla Jones 
Attorney for the State at Trial
Assistant District Attorney 
900 7th Street, Third Floor  Wichita Falls, Texas 76301
starla.jones@co.wichita.tx.us

Jennifer Ponder 
Attorney for the State on Appeal
Assistant District Attorney 
900 7th Street, Third Floor Wichita Falls, Texas 76301
jennifer.ponder@co.wichita.tx.us

Hon. Charles Barnard
Presiding Judge 
89th District Court 
900 7th Street
Wichita Falls, Texas 76301
charles.barnard@co.wichita.tx.us




	                                    2	
                                    Table of Contents

Identity of The Parties & Counsel ………………………………….…..…2

Table of Contents ………………………………………………………….3

Index of Authorities …………………………………….…………………4

Statement Regarding Oral Argument…………………………..…………..7

Statement of the Case………………………….…………………………...7

Issues Presented …………………………..….…………………………….8

     I.        Whether the trial court erred by denying Appellant’s motion to
               suppress because he was unlawfully detained and the officer lacked
               reasonable suspicion or probable cause to search Appellant or his
               belongings.

    II.        Whether it was error to admit the untested substance into evidence
               over the objection of counsel because it harmed Appellant’s
               presumption of innocence and was more prejudicial than probative.

III.           Whether it was harmful error to exclude the Appellant’s requested
               jury instruction in the Court’s Charge concerning the untested
               substances contained in State’s exhibits 7 and 8.

Statement of Facts …………………………………………………………..8

Summary of the Argument ………………………………………………...10

Argument ………………………………….……………………………….11

          I.     The trial court erred by denying Appellant’s motion to suppress
                 because he was unlawfully detained and the officer lacked
                 reasonable suspicion or probable cause to search Appellant or his
                 belongings………………………………………………………..11




	                                           3	
           A.    The officer lacked reasonable suspicion to believe that
                 a crime had been committed or would be committed
                 when he detained Appellant.
           B.    It was unlawful to detain Appellant solely because he
                 was located in an alleged “high crime area” at night.
           C.    Appellant was not free to leave of his own will during
                 the detention and his consent was not voluntary.

    II.    It was error to admit the untested substance into evidence over the
           objection of counsel because it harmed Appellant’s presumption of
           innocence and was more prejudicial than probative……………..20

    III.   It was harmful error to exclude the Appellant’s requested jury
           instruction in the Court’s Charge concerning the untested
           substances contained in State’s exhibits 7 and 8………………...24

Prayer ………………………..………………………………………….…28

Certificate of Compliance…………….………….………………………...28

Certificate of Service ………………………….…………………………..29

                             Index of Authorities

Constitutions

Tex. Const. art. I. …………………………………..………………………13

U.S. Const. amend. IV …………………………………………………13, 24

Texas Rules & Codes

Tex. Code Crim. Proc. art. 36.14…………………………………….…….25

Tex. Code Crim. Proc. art. 36.15………………………………..…………25

Tex R. Evid. 403………………………………………………………..21-22

Federal Cases



	                                      4	
Arizona v. Gant, 556 U.S. 332, 338 (2009)………………………………13

Delaware v. Prouse, 440 U.S. 648 (1979) ……………………………….14

Florida v. Bostick, 501 U.S. 429, 437 (1991)…………………………….13

Florida v. Royer, 460 U.S. 491, 497 (1983)………………………………18

McDonald v. United States, 335 U.S. 451 (1948) ………………………..13

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)…………………...19

United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975)………….12

United States v. Robinson, 414 U.S. 218 (1973) …………………………19

Texas Cases

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)(op. on
     reh'g)……………………………………………………………….24

Arana v. State, 1 S.W.3d 824, 826 (Tex. App.—Houston [14th Dist.] 1999,
     pet. ref’d.)………………………………………………………….24

Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996)……25-26

Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010)………………18

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)…..12

Grisham v. State, No. 03-14-00137-CR, 2017 WL 1130371, at *6 (Tex.
      App.—Austin, Mar. 23, 2017, no pet. h.) (mem. op., not designated
      for publication)…...............................................................................25

Gurrola v. State, 877 S.W.2d 300, 302-03 (Tex. Crim. App. 1994)………18

Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App., 2007) …………….13

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012)……….22



	                                                  5	
Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002)…………….21

Hudson v. State, 205 S.W.3d 600, 604 (Tex. App.- Waco 2006,
     pet. ref’d)…………………………………………………………..18

Jackson v. State, 288 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2009,
      pet. ref'd) …………………………………………………………..25

Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995)…………18

Klare v. State, 76 S.W.3d 68, 73-74 (Tex. App.--Houston [14th Dist.] 2002,
      pet. ref'd)……………………………………………………………16

Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002)…………..21

Massingill v. State, No. 11-14-00289-CR, 2016 WL 5853180, at *1 (Tex.
     App.--Eastland, Sept. 30, 2016, no pet. h) (mem. op., not designated
     for publication)……………………………………………………..21

Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011)…………19

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)…………..22

Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005)………….24

Polk v. State, 738 S.W.2d 274, 276 (Tex.Cr.App. 1987)…………………26

Render v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011,
     pet. ref'd)……………………………………………………………21

Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000)……………...21

Schenekl v. State, 30 S.W.3d 412 (Tex. Crim. App. 2000) ……………….14

Scott v. State, 549 S.W.2d 170, 172-73 (Tex. Crim. App. 1976)……….....16

State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006) …………………12

State v. Pena , 464 S.W.3d 389 (Tex. App.—Corpus Christi 2014,
       pet. ref'd) ……………………………………………………………12

	                                   6	
State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002)………………18

State v. Sanchez, 393 S.W.3d 798, 802 (Tex. App.--El Paso 2013, pet
       ref’d)…………………………………………………………………24

Stiles v. State, 520 S.W.2d 894, 896-897 (Tex.Cr.App. 1975)…………….26

Stone v. State, 703 S.W.2d 652, 655 (Tex.Cr.App. 1986)…………………26

Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996)………24-25

Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013)……………..12

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)………..20

Weems v. State, 493 S.W.3d. 574 (Tex. Crim. App. 2016) ………………..11

Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009) ....................21

                   Statement Regarding Oral Argument

      The Appellant does not request oral argument.

                            Statement of the Case

      Appellant was indicted for possession of a controlled substance,

penalty group one, 1 gram or more but less than 4 grams, a felony offense.

C.R. 1:6. Appellant’s case was tried to a jury and he was convicted and a

judgment entered by the trial court on July 26, 2017. C.R. 1:123-125. The

jury determined Appellant had two prior felony convictions and he was

sentenced to 45 years in the institutional division. C.R. 1:123-125. The trial

court certified Appellant’s right to appeal his conviction and sentence. C.R.



	                                       7	
1:126. Appellant filed his Notice of Appeal and this is Appellant’s Brief.

C.R. 1:158.

                               Issues Presented

     I.   Whether the trial court erred by denying Appellant’s motion to
          suppress because he was unlawfully detained and the officer lacked
          reasonable suspicion or probable cause to search Appellant or his
          belongings.

    II.   Whether it was error to admit the untested substance into evidence
          over the objection of counsel because it harmed Appellant’s
          presumption of innocence and was more prejudicial than probative.

III.      Whether it was harmful error to exclude the Appellant’s requested
          jury instruction in the Court’s Charge concerning the untested
          substances contained in State’s exhibits 7 and 8.

                              Statement of Facts

          On January 21, 2016, around 9:30 p.m., Appellant and a female

named Rebecca Bolf were walking in the 1600 block of Enterprise in

Wichita Falls, Texas near a McDonald’s. R.R. 4:87-88. The female was

pushing a baby stroller down the street and walked into a field north of the

street.     R.R. 4:88.   Appellant was walking westbound down the street

pushing a dolly and met the female near the field and were talking to each

other. R.R. 4:88. Officer Dozier of the Wichita Falls Police Department

was sitting in a parking lot south of their location watching the Appellant

and Ms. Bolf. R.R. 4:89.




	                                      8	
      After a few minutes, Appellant and Ms. Bolf walked together toward

the Summit Apartment complex and entered an apartment.            R.R. 4:89.

Officer Dozier then drove into the apartment parking lot and exited his

vehicle. R.R. 4:90. At the same time, Appellant and Ms. Bolf exited the

apartment and Appellant was carrying a backpack and Ms. Bolf was pushing

the baby stroller. R.R. 4:91. Officer Dozier approached the two people and

detained them. R.R. 4:48. The reason Officer Dozier detained them was

because he believed their behavior was suspicious and he believed they

might have been involved in burglary or theft. R.R. 4:46. Officer Dozier

did not see them commit a crime prior to detaining them. R.R. 4:47.

      Officer Dozier asked for permission to search the backpack Appellant

was holding and Appellant stated “sure.” R.R. 4:105. The officers learned

through dispatch that Appellant had three city arrest warrants. R.R. 4:106.

Officer Dozier dug through the backpack and found a small magnetic key

holder containing a plastic baggy with a substance later determined to be

methamphetamine by a DPS scientist. R.R. 4:106, 121-122. Officer Felts

then searched Appellant’s person.     R.R. 4:109.    Officer Felts searched

Appellant’s pocket and found an Altoids tin. R.R. 4:110. Inside the Altoids

tin were found two small plastic baggies that each contained a white, crystal

like substance. R.R. 4:112. The two baggies of crystal substance found in



	                                    9	
the Altoids tin were not tested at the lab. R.R. 4:177. The backpack was

given to the female subject after Appellant was arrested.      R.R. 4:115.

Appellant was then transported to the Wichita County jail and charged with

possession of a controlled substance. R.R. 4:116

                        Summary of the Argument

      The trial court abused its discretion by failing to suppress any

evidence seized from the backpack and Appellant’s person because it was

unlawfully seized without a warrant and there was no valid exception to the

warrant requirement. Officer Dozier unlawfully detained appellant without

reasonable suspicion of criminal activity. The officer could have sought a

search warrant for the backpack but instead made an unlawful search of it

and Appellant’s pockets. The trial court’s decision should be overruled on

the basis that it was unreasonable, outside the zone of reasonable

disagreement and incorrect because there was no reasonable suspicion to

detain and no valid warrant exception applied.

      It was error to admit the untested substance, alleged to be

methamphetamine, into evidence.      Said evidence was admitted over the

objection of counsel and was more prejudicial than probative. The two

baggies of untested white substance served to confuse the issues, tended to

mislead the jury and served as cumulative evidence. The untested substance



	                                    10	
did not serve any valid purpose other than to create an unfounded bias in the

minds of the jurors and convince them, without sufficient proof, that the

substance was in fact methamphetamine.

         It was error to exclude Appellant’s requested jury instruction

concerning the untested substance. The instruction would have served to

lessen the harm created by admitting the untested substance and would have

given a proper explanation to the jury concerning how to view the evidence

and apply the burden of proof.

                                   Argument

    I.      The trial court erred by denying Appellant’s motion to
            suppress because he was unlawfully detained and the officer
            lacked reasonable suspicion or probable cause to search
            Appellant or his belongings.

Applicable Law

         Standard of Review: A trial court's ruling on a motion to suppress is

reviewed under an abuse of discretion standard, using a bifurcated standard

of review. Weems v. State, 493 S.W.3d. 574, 576–78 (Tex. Crim. App.

2016). Deference is given to the trial court when it determines historical

facts or mixed questions of law and fact which rely upon the credibility of a

witness. Id. The trial judge is the sole trier of fact and judge of the credibility

of the witnesses and the weight to be given to their testimony. Id. However,

all questions of law and mixed questions that do not depend on credibility

	                                       11	
determinations are reviewed de novo. Id. The trial court's ruling will be

upheld if it is reasonably supported by the record and correct on any theory

of law applicable to the case. State v. Pena, 464 S.W.3d 389, 395 (Tex.

App.—Corpus Christi 2014, pet. ref'd). Appellate courts will review the

record in a light most favorable to the trial court’s ruling, and will reverse

the judgment if the decision is arbitrary, unreasonable, or “outside the zone

of reasonable disagreement.” State v. Dixon, 206 S.W.3d 587, 590 (Tex.

Crim. App. 2006).

      A.     The officer lacked reasonable suspicion to believe that
             a crime had been committed or would be committed
             when he detained Appellant.

      Reasonable suspicion of criminal activity allows a temporary seizure

for questioning that is limited to the reason for the seizure. Wade v. State,

422 S.W.3d 661, 668 (Tex. Crim. App. 2013)(citing United States v.

Brignoni-Ponce, 422 U.S. 873, 881-82 (1975)).          “A police officer has

reasonable suspicion for a detention if he has specific, articulable facts that,

when combined with rational inferences from those facts, would lead him to

reasonably conclude that the person detained is, has been, or soon will be

engaged in criminal activity.” Id (citing Derichsweiler v. State, 348 S.W.3d

906, 914 (Tex. Crim. App. 2011). This objective standard disregards the




	                                     12	
actual subjective intent of the arresting officer and looks, instead, to whether

there was an objectively justifiable basis for the detention. Id.

      The court must review the totality of the circumstances, whereby,

individual circumstances may seem innocent enough in isolation, but if they

combine to reasonably suggest the imminence of criminal conduct, an

investigative detention is justified. Id. Reasonable suspicion exists if the

information is sufficiently detailed and reliable-- i.e., it supports more than

an inarticulate hunch or intuition--to suggest that something of an apparently

criminal nature is brewing. Id. A person's refusal to cooperate with a police

request during a consensual encounter cannot, by itself, provide the basis for

a detention. Florida v. Bostick, 501 U.S. 429, 437 (1991).

      An individual has the right to be free from unreasonable searches and

seizures under both the United States and Texas Constitutions. U.S. Const.

amend. IV; Tex. Const. art. I. Sec. 9.        A warrantless search is per se

unreasonable but for a few well-delineated exceptions. Arizona v. Gant, 556

U.S. 332, 338 (2009).      The State carries the burden of proving that a

warrantless search falls within one of these exceptions. McDonald v. United

States, 335 U.S. 451, 454-55 (1948).

      “The Fourth Amendment grants individuals "the right . . . to be secure

in their persons, houses, papers, and effects, against unreasonable searches



	                                      13	
and seizures.”” Gutierrez v. State, 221 S.W.3d 680, 684-85 (Tex. Crim.

App., 2007)(citing U.S. Const. amend. IV.).           “In determining the

reasonableness of a search or seizure, the actions of police are judged by

balancing the individual's privacy interest against the Government's interest

in law enforcement.     The balancing test is utilized to ensure that an

individual's Fourth Amendment rights are not subjected to "arbitrary

invasions at the unfettered discretion of officers in the field.”” Id at 685

(citing Schenekl v. State, 30 S.W.3d 412, 413 (Tex. Crim.App.2000); and

Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660

(1979)).

      Here, Officer Dozier’s initial suspicion arose from the female pushing

a baby stroller down the street behind the McDonald’s. R.R. 4:43. He then

watched Appellant walk down Enterprise Street toward the north end of the

field and converse with the female for a few minutes. R.R. 4:44. The

officer did not recognize the female at the time he was watching them. R.R.

4:45. The officer thought he “may have had a dealing with [Silva] before.”

R.R. 4:45.   The officer’s belief they could have been burglarizing or

possessing stolen items was based on “a speculation, a hunch.” R.R. 4:46.

The officer did not know whether either of the two lived in the area. R.R.

4:46. Officer Dozier did not observe their actions 10 minutes before this and



	                                    14	
did not witness anything illegal before talking to these individuals. R.R.

4:47.

        Officer Dozier admitted that he stopped and detained the two subjects

based on their interaction on Enterprise Street and in conversing in the field.

R.R. 4:47. The officer was not aware the two had allegedly been digging in

trashcans at the point he detained them. R.R. 4:48. The two subjects were

stopped and detained by Officer Dozier at the outset of the police encounter.

R.R. 4:48. They were detained so that Officer Dozier could investigate his

“hunch” that the two were either burglarizing or possessing stolen property.

R.R. 4:48. The officer asked for their ID’s shortly after detaining them.

R.R. 4:49.

        The lawful and innocuous actions of Appellant prior to being detained

did not rise to the level of reasonable suspicion in light of the totality of

circumstances. Officer Dozier had only observed the two for a few minutes

and admittedly did not observe any illegal behavior. He did not know

whether they lived nearby or whether they had been customers at the

McDonald’s approximately ten minutes before he detained them. The sole

basis for the detention was his “hunch” of illegal activity. Therefore, the

officer did not have a lawful basis to detain Appellant at that time.




	                                     15	
      B.       It was unlawful to detain Appellant solely because he
               was located in an alleged “high crime area” at night.

      “Neither time of day nor level of criminal activity in an area are

suspicious in and of themselves; the two are merely factors to be considered

in making a determination of reasonable suspicion.” Id at 53 (citing Scott v.

State, 549 S.W.2d 170, 172-73 (Tex. Crim. App. 1976)). Neither fact proves

that the suspect is engaged in criminal activity. Id (citing Klare v. State, 76

S.W.3d 68, 73-74 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd.)). The

surroundings must raise a suspicion that the particular person is engaged in

illegal behavior for these facts to affect the assessment of the person’s

actions. Id.

      In the present case, Officer Dozier was working third shift from 6:30

p.m. to 6:30 a.m. R.R. 4:45. He spotted the two subjects outside together

after dark in a field near McDonald’s. R.R. 4:8. The detention of the two

subjects occurred around 21:36 hours (9:36 p.m.). C.R. 1:12. The officer’s

testimony concerning the crime rate in the immediate area reads as follows:

      Q. Did anything about that seem suspicious or strange to you?

      A. Yes.

      Q. What?

      A. Just there was several businesses in that area, the fact that,
      you know, they entered the field and met up, but they were both
      separated at that time and then entering the apartment complex
      together with those items, you know, at that time, I potentially

	                                     16	
         thought they stole them or were about to commit a burglary or
         theft.

         Q. Does that -- does that area have a problem with that?

         A. Yes.

         Q. Specifically, that apartment complex?

         A. Yes.

         Q. Either shortly before or shortly after this event, had you
         arrested other subjects for burglary of a vehicle in that same
         apartment complex? Yes.  Do you often see people push
         around empty baby strollers and dollies?

         A. No.

         R.R. 4:9.

Officer Dozier provided minimal information concerning crime in the area

to support his contention that their actions were suspicious. The State did

not offer any data or statistics to justify a claim this area was a “high crime

area”.

         Even if the arrest area were deemed to be a “high crime area”, it did

not justify the detention. At the time the officer approached and detained

Appellant, all he knew was that he was pushing a dolly, at night, near an

apartment complex. He did not testify that he observed Appellant carrying

any items or breaking into any buildings. These facts alone did not create

reasonable suspicion that Appellant was involved in criminal activity.

Accordingly, the detention was unlawful and any subsequent search,



	                                       17	
whether by consent, stop and frisk for officer safety, or incident to arrest,

was unjustified.

      C.     Appellant was not free to leave of his own will during
             the detention and his consent was not voluntary.

      There are three distinct categories of interactions between police

officers and citizens: (1) encounters, (2) investigative detentions, and (3)

arrests. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010)(citing

State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002)). Courts look at

the totality of the circumstances to determine which category an interaction

falls into. Id (citing Gurrola v. State, 877 S.W.2d 300, 302-03 (Tex. Crim.

App. 1994)). An encounter is a consensual interaction that the citizen is free

to terminate at any time. Id (citing Florida v. Royer, 460 U.S. 491, 497

(1983)). Unlike an investigative detention and an arrest, an encounter is not

considered a seizure that would trigger Fourth Amendment protection.

Perez, 85 S.W.3d at 819.

      Alternatively, an investigative detention occurs in response to a police

officer's show of authority under a reasonable belief that a person is not free

to leave. Crain, 315 S.W.3d at 49 (citing Johnson v. State, 912 S.W.2d 227,

235 (Tex. Crim. App. 1995).         To determine whether the interaction

constituted an encounter or a detention, the court focuses on whether the

officer conveyed a message that compliance with the officer's request was

	                                     18	
required. Id (citing Hudson v. State, 205 S.W.3d 600, 604 (Tex. App.- Waco

2006, pet. ref’d). The question is whether a reasonable person in the citizen's

position would have felt free to decline the officer's requests or otherwise

terminate the encounter. Id.

      Texas courts have consistently held there is a “strong preference for

searches to be administered pursuant to a warrant. Id. Even though warrant

exceptions exist, “the warrant requirement is not lightly set aside, and the

State shoulders the burden to prove that an exception to the warrant

requirement applies.” Id (citing United States v. Robinson, 414 U.S. 218,

243 (1973).

      One of those exceptions is a search conducted with the person's

voluntary consent. Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App.

2011)(citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). “The

validity of a consent to search is a question of fact to be determined from all

the circumstances.” Id. “A person's consent to search can be communicated

to law enforcement in a variety of ways, including by words, action, or

circumstantial evidence showing implied consent.” Id. “But the Fourth and

Fourteenth Amendments require that a consent not be coerced, by explicit or

implicit means, by implied threat or covert force."        Id at 459.    “The

voluntariness of a person's consent is also a question of fact that is



	                                     19	
determined by analyzing all of the circumstances of a particular situation.”

Id. “The trial judge must conduct a careful sifting and balancing of the

unique facts and circumstances of each case in deciding whether a particular

consent search was voluntary or coerced.”

          In the present case, Officer Dozier used a show of force to detain

Appellant. The officer admitted in the suppression hearing that he believed

the two subjects might have been involved in burglary or theft that evening.

R.R. 4:46. Although his belief was unsubstantiated at the time, the officer

exerted authority over Appellant at the outset when he detained him. R.R.

4:48. The facts described at the hearing and evidenced by the video would

lead a reasonable person to conclude that Appellant was subject to the

officer’s authority from the outset and was not free to leave. He succumbed

to the officer’s authority and was overcome by his fear and nervousness by

being detained in front of the apartment. Despite the Appellant stating

“sure” in response to the request to search the backpack, the totality of

circumstances lean in favor of this being a case of involuntary consent.

    II.     It was error to admit the untested substance into evidence over
            the objection of counsel because it harmed Appellant’s
            presumption of innocence and was more prejudicial than
            probative.

Applicable Law

          Standard of Review:   An appellate court reviewing a trial court's

	                                     20	
ruling on the admissibility of evidence must utilize an abuse of discretion

standard of review. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000). In other words, the appellate court must uphold the trial court's

ruling if it was within the zone of reasonable disagreement. Id.         The

appellate court will uphold the trial court's ruling on the admission or

exclusion of evidence if the ruling was proper under any legal theory or

basis applicable to the case. Martinez v. State, 91 S.W.3d 331, 336 (Tex.

Crim. App. 2002).

      Under Rule 403, relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations of undue

delay or needless presentation of cumulative evidence. Massingill v. State,

No. 11-14-00289-CR, 2016 WL 5853180 at *1 (Tex. App.--Eastland, Sept.

30, 2016, no pet. h) (mem. op., not designated for publication); TEX. R.

EVID. 403; see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App.

2009).   Rule 403 favors admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial.

Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v. State,

347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref'd). Evidence is

unfairly prejudicial when it has the undue tendency to suggest an improper



	                                    21	
basis for reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex.

Crim. App. 2000); Render, 347 S.W.3d at 921. In reviewing a trial court's

determination under Rule 403, a reviewing court is to reverse the trial court's

judgment "rarely and only after a clear abuse of discretion." Mozon v. State,

991 S.W.2d 841, 847 (Tex. Crim. App. 1999). An analysis under Rule 403

includes, but is not limited to, the following factors: (1) the probative value

of the evidence, (2) the potential to impress the jury in some irrational yet

indelible way, (3) the time needed to develop the evidence, and (4) the

proponent's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324

(Tex. Crim. App. 2012).

      Here, admission of the untested substance in Exhibits 7 and 8 was

much more prejudicial than probative. The State offered the Altoids tin that

contained the baggies of clear crystal like substance over Appellant’s

objection. R.R. 4:110-11. The court later allowed admission of the two

baggies of untested crystal substance found within the Altoids tin along with

the tested substance from the magnetic key holder. R.R. 4:179. The officer

described the exhibits as containing a white crystal like substance found in

baggies. R.R. 4:112. By allowing admission of the untested substance, the

jury was permitted to consider it as evidence of Appellant’s guilt. This was

overly prejudicial because it was possible that the untested substance was



	                                     22	
not in fact methamphetamine.

      The jury was left with the unfair impression that because the untested

substance was permitted, the court therefore approved of both its

admissibility and reliability. This is problematic because the State must

prove that any substance is in fact what it is alleged to be, i.e.

methamphetamine. It’s possible the jury might have disbelieved that Exhibit

5 (substance tested by DPS forensic scientist Ashley Zelinski) was in fact

methamphetamine, despite the testimony of the scientist. Theoretically, the

jury could have found that the tested substance was not proven beyond a

reasonable doubt, but then also have believed that the untested substance

was methamphetamine, when in fact it was not. This would lead to

confusion amongst the jury and a wrongful conviction against Appellant. To

avoid this confusion or prejudice against Appellant, the court should have

disallowed admission of the untested substances.        The State’s forensic

scientist testified it was DPS policy not to test all of the submitted

substances when, such as here, several were submitted.           R.R. 4:177.

Appellant should not be harmed by the State’s unilateral decision that it

takes too much effort to test all of the substances that are used against him.

The untested substance only served to impress the jury in an irrational and

indelible way and the State’s need for the evidence did not outweigh its



	                                    23	
potential for harm. In addition, admission of the untested substance was a

violation of Appellant’s rights under the fourth and fourteenth amendments

to the U.S. Constitution and also the Texas Constitution.

    III.   It was harmful error to exclude the Appellant’s
           requested jury instruction in the Court’s Charge
           concerning the untested substances contained in State’s
           exhibits 7 and 8.

Applicable Law

       Standard of Review:      Charge error is reviewed on appeal by

determining whether error occurred, and if so, whether that error caused

sufficient harm to require reversal. State v. Sanchez, 393 S.W.3d 798, 802

(Tex. App.--El Paso 2013, pet ref’d)(citing Ngo v. State, 175 S.W.3d 738,

743–44 (Tex. Crim. App. 2005); see Price v. State, 457 S.W.3d 437, 440

(Tex. Crim. App. 2015)). The degree of harm required for reversal depends

on whether the defendant preserved error at trial. Ngo at 743. When the

defendant preserves error at trial by timely objection, the record must

establish only “some harm” to obtain reversal. Id. (citing Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985)(op. on reh'g)).

       Jury charge error may be preserved by asserting either an objection or

a requested charge.    Arana v. State, 1 S.W.3d 824, 826 (Tex. App.—

Houston [14th Dist.] 1999, pet. ref’d)(citing Vasquez v. State, 919 S.W.2d

433, 435 (Tex. Crim. App. 1996)). Objections and special requested

	                                    24	
instructions must both be submitted in writing or dictated to the court

reporter before the charge is read to the jury. See Tex. Code Crim. Proc. arts.

36.14, 36.15. An adverse ruling must be obtained to preserve error on an

objection but not on a special requested instruction that is called to the trial

court's attention. See Vasquez, 919 S.W.2d at 435. If a defendant either

asserts objections, requests instructions, or both, and the trial court thereafter

modifies the charge but does not respond to all of the objections or requested

charges, then the unresponded to objections or requested charges are not

deemed waived by the defendant unless the contrary is shown by the record.

Id.

      The trial court must provide the jury with "a written charge distinctly

setting forth the law applicable to the case." Tex. Code Crim. Proc. art.

36.14; Grisham v. State, No. 03-14-00137-CR, 2017 WL 1130371, at *6

(Tex. App.—Austin Mar. 23, 2017, no pet. h.) (mem. op., not designated for

publication). "A defendant preserves error if the requested charge is specific

enough to put the trial court on notice of the omission or error in the charge,

and the requested charge need not be 'in perfect form' but only sufficient

enough to bring the request to the trial court's attention." Jackson v. State,

288 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd)

(quoting Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996)).



	                                      25	
In deciding whether the trial court understood the request for an instruction,

the record must be examined for statements by the trial court that reflect

what its understanding was, the general theme of the defense evidence, the

various defensive theories presented at the trial, and anything else that may

shed light on whether the trial court understood the objection. Id.

      A defendant is not required to request an instruction in perfect form.

Stone v. State, 703 S.W.2d 652, 655 (Tex.Cr.App. 1986); Tex. Code Crim.

Proc. art. 36.15; (see Chapman at 695). The requested charge must only be

sufficient to call the trial court's attention to the omission in the court's

charge. Id. (citing Stiles v. State, 520 S.W.2d 894, 896-897 (Tex.Cr.App.

1975). The appellant in Stone prevailed because his requested instruction

was sufficient to apprise the trial judge of the objection to the charge. Id.

(see Polk v. State, 738 S.W.2d 274, 276 (Tex.Cr.App. 1987).

      In the present case, the trial court permitted admission of the white

crystal like untested substance but disallowed the requested jury instruction.

At the charge conference, Appellant’s counsel submitted the following

written request: “You are instructed that the State has failed to prove the

contents of states exhibit 7 and 8 to be a controlled substance and you cannot

consider the substance to be methamphetamine in arriving at your verdict.”

C.R. 1:113.    Appellant’s counsel articulated the reasoning behind the



	                                     26	
requested instruction by stating:

      MR. BRADY: Yes, Judge. Just like my objection to the
      evidence earlier, the lab results, there's been no analysis on this.
      They're going to try to get up there and say it is
      methamphetamine and he's connected to it and you can infer
      that it's methamphetamine. And that's, you know, connecting
      him to stuff that's in the bag. Well, they haven't proven that
      beyond a reasonable doubt. And in order for them to have an
      extraneous offense that they consider, it has to be proven
      beyond a reasonable doubt. And that would be my other
      instruction that I would ask for if this one is denied. And so
      they cannot consider an extraneous offense that has not been
      committed beyond a reasonable doubt. R.R. 5:13

      By disallowing the requested jury charge instruction, the trial court

failed to properly explain the admitted evidence, and likely caused confusion

on the part of the jurors. The untested substance in exhibits 7 and 8 was not

proven beyond a reasonable doubt to be methamphetamine. However, the

impression left with the jurors was that it was purported to be

methamphetamine and both the state and the court sponsored its

admissibility and reliability. The state’s need for the evidence was greatly

outweighed by the potential harm. The requested limiting instruction would

have served to partially remediate the harm created by admitting exhibits 7

and 8 over Appellant’s objection.

      The trial Court’s decision to deny Appellant’s motion to suppress was

incorrect and was outside the zone of reasonable disagreement and

constituted an abuse of discretion. It was error for the trial court to allow the


	                                      27	
untested substance to be admitted and displayed before the jury because it

was overly prejudicial. Lastly, it was harmful error to disallow the requested

charge instruction that would have lessened the harm created by admitting

and displaying the untested substance that was purported to be

methamphetamine.

                                 PRAYER

      The Appellant prays that the Court of Appeals, Second District,

reverse the judgment of the 89th District Court of Wichita County, Texas.

                                       Respectfully submitted,

                                       Benjamin E. Hoover
                                       The Nix Law Firm
                                       1401 Holliday, Suite 400
                                       Wichita Falls, Texas 76301
                                       Tel 940.322.9200
                                       Fax 940.228.3233
                                       bhoover@thenixlawfirm.com

                                By:    /s/ Benjamin E Hoover
                                       Benjamin E. Hoover
                                       State Bar No. 24052682
                                       Attorney for Appellant

                   CERTIFICATE OF COMPLIANCE

      I, the undersigned, certify that this document was produced on a

computer using Microsoft Word and contains 4,116 words, as determined by

the computer software’s word-count function, excluding the sections of the

document listed in Texas Rule of Appellate Procedure 9.4(i)(1).

	                                     28	
                     CERTIFICATE OF SERVICE

    On the 25th day of May, 2018, a copy of the foregoing document was

served upon the following parties by electronic service and the transmission

was reported as complete:

      Jennifer Ponder
      Wichita County District Attorney’s Office
      900 7th Street
      Wichita Falls, Texas 76301
      jennifer.ponder@co.wichita.tx.us

                                            /s/ Benjamin E. Hoover
                                            Benjamin E. Hoover




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