                                                                                      ACCEPTED
                                                                                  14-15-00244-CR
                                                                  FOURTEENTH COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            12/16/2015 1:29:47 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                       No. 14-15-00244-CR
                       No. 14-15-00245-CR
                       No. 14-15-00246-CR            FILED IN
                                              14th COURT OF APPEALS
                       No. 14-15-00247-CR        HOUSTON, TEXAS
                               In the         12/16/2015 1:29:47 PM
                      COURT OF APPEALS        CHRISTOPHER A. PRINE
                              For the                  Clerk
                 FOURTEENTH JUDICIAL DISTRICT
                            At Houston


WALTER LOUIS JACKSON, JR.            '                        APPELLANT

V.                                   '

THE STATE OF TEXAS                   '                        APPELLEE


          APPEAL FROM THE 268th DISTRICT COURT
                FORT BEND COUNTY, TEXAS
TRIAL COURT NO. 12-DCR-062008; 12-DCR-062010; 12-DCR-062011; 12-
                        DCR-062012

                             STATE’S BRIEF

                   Counsel for Appellee, The State of Texas
                            JOHN F. HEALEY
                           DISTRICT ATTORNEY
                      FORT BEND COUNTY, TEXAS
                 301 Jackson Street, Richmond, Texas 77469
                  (Tel.) 281-341-4460/(Fax) 281-238-3340

                           JASON BENNYHOFF
                     ASSISTANT DISTRICT ATTORNEY
                       FORT BEND COUNTY, TEXAS
                  301 Jackson Street, Richmond, Texas 77469
(Tel.) 281-341-4460/(Fax) 281-238-3340/jason.bennyhoff@fortbendcountytx.gov

                 ORAL ARGUMENT NOT REQUESTED

                                     i
                       IDENTIFICATION OF PARTIES

      Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all

interested parties is provided below so the members of this Honorable Court may

at once determine whether they are disqualified to serve or should recuse

themselves from participating in the decision of the case.

Appellant:
WALTER LOUIS JACKSON, JR.

Appellee:
THE STATE OF TEXAS

Counsel for Appellant:
ANDREW DORNBURG
(PRE-TRIAL)
CALVIN PARKS
(AT TRIAL)
PAUL LOVE
(AT TRIAL)
GERALD MOTON
(ON APPEAL)

Address(es):
Dornburg
310 Morton St., Suite 177
Richmond, Texas 77469

Parks
2925 Gulf Frwy Suite B #295
League City, Texas 77573

Love
600 59th Street, Suite 1001
Galveston, Texas 77551


                                          ii
IDENTIFICATION OF PARTIES (cont.)

Moton
11765 West Avenue PMB 24
San Antonio, Texas 78216

Counsel for Appellee/State:
JOHN F. HEALEY, JR.
District Attorney of Fort Bend County, Texas
Fort Bend County District Attorney’s Office
Address(es):
301 Jackson Street, Rm 101
Richmond, Texas 77469

MATTHEW BANISTER
TANIYA HENDERSON
ELAN LEVY
Assistant District Attorneys, Ft. Bend County, Tx.
(AT TRIAL)

JASON BENNYHOFF
Assistant District Attorney, Ft. Bend County, Tx.
(ON APPEAL)

JOHN J. HARRITY, III
Assistant District Attorney, Ft. Bend County, Tx.

Trial Judge:
The Hon. Brady Elliott
268th Judicial District Court
Fort Bend County, Texas




                                      iii
                                           TABLE OF CONTENTS

SECTION                                                                                                                PAGE

IDENTIFICATION OF PARTIES ............................................................................ ii

TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES ................................................................................... vii

STATEMENT REGARDING ORAL ARGUMENT ................................................xi

STATEMENT OF THE CASE..................................................................................xi

ISSUES PRESENTED BY APPELLANT ................................................................ 1

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF THE ARGUMENT ....................................................................... 17

RESPONSE TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR
    THE SEARCH WARRANT AFFIDAVIT WAS SUFFICIENT TO
    ESTABLISH PROBABLE CAUSE TO SEARCH THE APARTMENT AND
    GARAGE BECAUSE THE JARDINES RULING DOES NOT APPLY TO
    THESE LOCATIONS, AND EVEN IF IT DID, THIS COURT SHOULD
    REFUSE TO SUPPRESS THE EVIDENCE BECAUSE THE POLICE AND
    REVIEWING MAGISTRATE RELIED ON THEN-EXISTING BINDING
    PRECEDENT IN THE PROCUREMENT AND REVIEW OF THE
    SEARCH WARRANT, AND EVEN IF THE DOG SNIFF IS REMOVED
    FROM THE AFFIDAVIT, THERE WAS STIL SUFFICIENT PROBABLE
    CAUSE

        . ...................................................................................................................... 18

        Standard of Review........................................................................................ 18

        Argument and Authorities.............................................................................. 21



                                                               iv
RESPONSE TO APPELLANT’S THIRD POINT OF ERROR
    THE EVIDENCE WAS LEGALLY SUFFICIENT TO “AFFIRMATIVELY
    LINK” APPELLANT TO THE NARCOTICS SEIZED IN HIS
    APARTMENT AND GARAGE


    . ...................................................................................................................... 35

    Standard of Review........................................................................................ 35

    Argument and Authorities.............................................................................. 35

RESPONSE TO APPELLANT’S FOURTH POINT OF ERROR
    APPLICANT HAS NOT PROVEN THAT HIS COUNSEL WAS
    INEFFECTIVE


    . ...................................................................................................................... 38

    Standard of Review........................................................................................ 38

    Argument and Authorities.............................................................................. 39

RESPONSE TO APPELLANT’S FIFTH POINT OF ERROR
    APPELLANT HAS WAIVED HIS BRADY COMPLAINT, AND EVEN IF
    HE HAD NOT, HE HAS NOT SHOWN EITHER THE DESTRUCTION
    OF EVIDENCE, NOR THAT ANY SUCH SUPPOSEDLY DESTROYED
    EVIDENCE WAS MATERIAL


    . ...................................................................................................................... 45

    Standard of Review........................................................................................ 45

    Argument and Authorities.............................................................................. 45




                                                           v
RESPONSE TO APPELLANT’S SIXTH POINT OF ERROR
    APPELLANT POINTS TO NO EVIDENCE THAT THE STATE
    WITHHELD ANY AGREEMENT FOR LENIENCY WITH ANY
    WITNESS WHICH THE DEFENSE WAS NOT AWARE OF


         . ...................................................................................................................... 48

         Standard of Review........................................................................................ 48

         Argument and Authorities.............................................................................. 48

RESPONSE TO APPELLANT’S SEVENTH POINT OF ERROR
    THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT
    DENIED APPELLANT’S MOTION FOR A MISTRIAL BECAUSE THE
    COURT GAVE AN EFFECTIVE CURATIVE INSTRUCTION


         . ...................................................................................................................... 51

         Standard of Review........................................................................................ 51

         Argument and Authorities.............................................................................. 52

PRAYER .................................................................................................................. 54




                                                                vi
                                         INDEX OF AUTHORITIES
Cases

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) ..............................18
Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) ................................52
Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) ..........................35
Brown v. State, 605 S.W.2d 572, 577 (Tex. Crim. App. 1980) ................................21
Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) ................................36
Chambers v. State, 903 S.W.2d 21, 34 (Tex. Crim. App. 1995) ..............................39
Cuero v. State, 845 S.W.2d 387, 391 (Tex. App.—Houston [1st Dist.] 1992, pet.
 ref’d)............................................................................................................... 23, 24
Davis v. State, 202 S.W.3d 149, 154 (2006) ............................................................32
Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011) ................................. 26, 29
Davis v. United States, 131 S.Ct. 2419, 2427 (2011)...............................................26
Evans v. State, 202 S.W.3d 158, 162 fn. 12 (Tex. Crim. App. 2006).......................37
Evans v. State, 995 S.W.2d 284, 286 (Tex. App.—Houston [14th Dist.] 1999, pet.
 ref’d)............................................................................................................... 23, 24
Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) ................................19
Flores v. State, 827 S.W.2d 416, 418 (Tex. App.—Corpus Christi 1992, pet. ref’d)
  ...............................................................................................................................20
Florida v. Harris, 133 S.Ct. 1050, 1058 (2013) ......................................................31
Florida v. Jardines, 133 S.Ct. 1409, 1414-15 (2013) ................................... 7, 22, 25
Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002) ..............................45
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) .................................51
Houston v. State, 663 S.W.2d 455 (Tex. Crim. App. 1984) .....................................35
Illinois v. Caballes, 543 U.S. 405, 409-410 (2005) .................................................27
                                                                vii
Illinois v. Fisher, 540 U.S. 544 (2004) ....................................................................47
Illinois v. Gates, 462 U.S. 213, 236 (1983).................................................. 19-21, 32
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) ..............................39
Jackson v. Virginia, 443 U.S. 307, 319 (1979) ........................................................35
Jones v. State, 338 S.W.3d 725 (Tex. App.—Houston [1st Dist.] 2011) aff’d 364
  S.W.3d 854 (Tex. Crim. App. 2012)......................................................................33
Jones v. State, 338 S.W.3d 725, 733 (Tex. App.—Houston [1st Dist.] 2011 aff’d
  364 S.W.3d 854 (Tex. Crim. App. 2012). .............................................................20
Ladd v. State, 3 S.W.3d 547, 571 (Tex. Crim. App. 1999) ......................................53
Levy v. State, No. 01-13-00379-CR, 2014 WL 3408697 (Tex. App.—Houston [1st
 Dist.] Jul. 10, 2014, pet. ref’d) ..............................................................................40
Matthews v. State, 165 S.W.3d 104, 112 (Tex. App. - Fort Worth 2005, no pet.)....22
McClintock v. State, 405 S.W.3d 277, 280 (Tex. App.—Houston [1st Dist.] 2013,
 rev’d on other grounds 444 S.W.3d 15 (Tex. Crim. App. 2014)...........................25
McClintock v. State, 444 S.W.3d 15, 19 (Tex. Crim. App. 2014) ............................21
McClintock v. State, No. 01-11000572-CR, 2015 WL 6851826 (Tex. App.—
 Houston [1st Dist.] 2015, no pet. h.) .....................................................................26
Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002) ...................................40
Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) ..................................52
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) .........................36
Porter v. State, 93 S.W.3d 342 (Tex.App.—Houston [14th Dist.] pet. ref’d) .........27
Rodriguez v. State, 106 S.W.3d 224, 229 (Tex. App.—Houston [1st Dist.] 2003,
 pet. ref’d) ...............................................................................................................31
Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007) ..............................20
Romo v. State, 315 S.W.3d 565 (Tex.App.—Fort Worth pet. ref’d) ................. 27, 31
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) ...............................38
                                                             viii
Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.] 2010, pet.
 ref’d)......................................................................................................................37
Shore v. State, No. AP-75,049, 2007 WL 4375939 at *15-16 (Tex. Crim. App. Dec.
 12, 2007) (not designated for publication) ............................................................40
State v. Fury, 186 S.W.3d 67 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)....46
State v. Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015) .......................................20
State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011) ..............................19
State v. York, 404 S.W.3d 681, 686 (Tex. App. —Fort Worth, 2013, pet. ref’d) .....34
Strickland v. Washington, 466 U.S. 668 (1984) .......................................................39
Taylor v. State 410 S.W.3d 520, 527 (Tex.App.—Amarillo 2013, no pet.) .............28
Temple v. State, 342 S.W.3d 572, 591 (Tex. App.—Houston [14th Dist.] 2010),
  aff’d 390 S.W.3d 341 (Tex. Crim. App. 2013) .....................................................45
United States v. Agurs, 427 U.S. 97, 112-13 (1976) ................................................47
United States v. Dovali-Avila, 895 F.2d 206 (5th Cir. 1990) ...................................27
United States v. Dunn, 480 U.S. 294, 301 (1987) ....................................................23
United States v. Hernandez, 976 F.2d (5th Cir.), cert. denied, 508 U.S. 914 (1993)
 ...............................................................................................................................27
United States v. Leon, 468 U.S. 897, 906 (1984).............................................. 25, 26
United States v. Ramirez, 145 Fed. Appx. 915, 923 (5th Cir. 2005) ........................24
United States v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993) ....................................27
Villareal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) .............................22
Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) ..................................51
Webb v. State, 801 S.W.2d 529, 530 (Tex. Crim. App. 1990) ..................................35
Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) ............................52
Whitaker v. State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998) ............................53

                                                                ix
Williams v. State, 995 S.W.2d 754, 761 (Tex. App.—San Antonio 1999, no pet.) ..46
Williams v. State, No. 05-07-00704-CR, 1998 WL 348320 (Tex. App.—Dallas
 1998, no pet.).........................................................................................................24
Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999) ....................................45
Wilson v. State, 98 S.W.3d 265, 272 (Tex. App.—Houston [1st Dist.] 2002, pet.
 ref’d)......................................................................................................................31

Statutes

Tex. Code. Crim. Proc. art. 18.01(b), (c) .................................................................19
Tex. Code Crim. Proc. art. 18.01(c) .........................................................................20
Tex. Code Crim. Proc. art. 38.23(a) .........................................................................30
Tex. Pen. Code §1.07(a)(40) ....................................................................................23
Tex. R. Evid. 508(c) .................................................................................................40




                                                              x
        STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex. R. App. P. 39, the State does not request oral argument.




                                   xi
                          No. 14-15-00244-CR
                          No. 14-15-00245-CR
                          No. 14-15-00246-CR
                          No. 14-15-00247-CR
                                  In the
                         COURT OF APPEALS
                                 For the
                    FOURTEENTH JUDICIAL DISTRICT
                               At Houston


WALTER LOUIS JACKSON, JR.               '                      APPELLANT

V.                                      '

THE STATE OF TEXAS                      '                      APPELLEE


          APPEAL FROM THE 268th DISTRICT COURT
                FORT BEND COUNTY, TEXAS
TRIAL COURT NO. 12-DCR-062008; 12-DCR-062010; 12-DCR-062011; 12-
                        DCR-062012

                         STATEMENT OF THE CASE

      Appellant was charged in the instant cause numbers with four counts of

possession with intent to distribute a controlled substance. (1CR9). Appellant was

convicted by the jury and then sentenced by the jury to a term of confinement of 45

years in the Texas Department of Criminal Justice – Institutional Division, and a

fine of $10,000. (1CR59, 65). This appeal follows. (1CR76).




                                        xii
                   ISSUES PRESENTED BY APPELLANT

      I. “The contraband in this case should have been suppressed because any
         purported police and magistrate reliance on precedent at the time the
         warrants were issued was misplaced.” App. Br. at p. iii.

      II. “The search warrant affidavits failed to establish probable cause.” App.
          Br. at p. iv.

      III. “Jackson did not have exclusive possession of the place where the
          contraband was found and the logical force of all of the evidence was
          insufficient to “affirmatively link” him to the contraband.” App. Br. at p.
          iv.

      IV. “Jackson received ineffective assistance of counsel at trial.” App. Br.
         at p. iv.

      V. “The State’s failure to preserve evidence violated Jackson’s due process
         rights.” App. Br. at p. iv.

      VI. “The prosecution violated its duty to provide Jackson a fair trial.”
         App. Br. at p. iv.

      VII. “The trial court abused its discretion in failing to grant Jackson’s
         motion for mistrial.” App. Br. at p. iv.

                           STATEMENT OF FACTS

      The Motion to Suppress Evidence

      The State secured search warrants to search Appellant’s home (which was an

apartment in a large apartment complex) and his garage, which was separate and

distant from Appellant’s apartment. (12RR at Exs. 15, 16 at p. 1,2 of 7). The

police also conducted a traffic stop of a vehicle Appellant was riding in which



                                         1
revealed further evidence of narcotics activity by Appellant. (12RR at MTS Ex. 15

at p. 6 of 7).

       Appellant moved to suppress the fruits of the searches of his home and

garage which were searched pursuant to the search warrants. (1CR28). Appellant

also moved to suppress the fruits of the warrantless search conducted during the

traffic stop. (1CR28).

       Following a pre-trial hearing, the trial court denied Appellant’s motion to

suppress evidence recovered from his home and garage which was recovered

pursuant to the search warrants. (4RR58-59). The trial court granted Appellant’s

motion to suppress the evidence recovered from the traffic stop.             (4RR61).

Because the State did not pursue an appeal of the order suppressing the evidence

from the traffic stop and did not seek to introduce it at trial, this issue will not be

further addressed in this brief.

       The Search Warrant for Appellant’s Apartment

       The State admitted copies of the search warrants and their supporting

affidavits. (3RR98; 12RR at MTS Ex. 15, 16).

       Exhibit 15 was the search warrant and supporting affidavit for the search of

Appellant’s apartment. (3RR98; 12RR at MTS Ex. 15). This search warrant

affidavit stated that on or about February 21, 2012, a confidential informant had

provided the police with information that Appellant was selling cocaine and

                                           2
prescription pills and using both his residence and a leased garage unit to facilitate

these sales. (12RR at MTS Ex. 15 at p. 5 of 7). The confidential informant was

believed to be credible because he or she had “provid[ed] reliable information in

the past that was proven credible in that he information lead to the arrest of

individuals found in possession of contraband.” (12RR at MTS Ex. 15 at p. 5 of

7).

      The affidavit also stated that Appellant was on parole for narcotics

convictions from Louisiana. (12RR at MTS Ex. 15 at p. 5 of 7).

      The affidavit also related that other independent sources informed the police

that Appellant supplied “both pills and cocaine to the Katy area bars and

individuals in the area.” (12RR at MTS Ex. 15 at p. 5 of 7). The affidavit also

stated that Appellant was named by arrestees as being the source of narcotics in

their possession on two different occasions. (12RR at MTS Ex. 15 at p. 5 of 7).

      In April of 2012, a reliable confidential informant told the police where

Appellant was living and that he was living with Laura Cline. (12RR at MTS Ex.

15 at p. 5 of 7). The confidential informant told police that Cline was helping

Appellant sell drugs. (12RR at MTS Ex. 15 at p. 5 of 7). The affiant learned that

Cline’s name was on the apartment lease and that she and Appellant rented a

garage on the premises. (12RR at MTS Ex. 15 at p. 5 of 7).



                                          3
         On May 8, 2012, the affiant saw Appellant and Cline meet in a parking lot of

the apartment complex where the confidential informant said they lived and where

Cline’s name was on the lease. (12RR at MTS Ex. 15 at p. 5 of 7). On the same

day, the affiant saw Appellant use a remote control to open the garage door to the

garage that Appellant and Cline rented. (12RR at MTS Ex. 15 at p. 5 of 7).

         Appellant was then stopped for a traffic violation, and a subsequent search

of his vehicle following a positive dog alert to the odor of narcotics revealed

approximately $6,000 in cash and prescription pills belonging to Appellant. (12RR

at MTS Ex. 15 at p. 6 of 7).

         On September 18, 2012, the affiant was told by Detective Arredondo that

patrons of the Frankenstein’s sports bar on Mason road had made complaints that

Appellant was selling drugs there. (12RR at MTS Ex. 15 at p. 6 of 7). Thereafter,

after “multiple days of surveillance,” the affiant saw Appellant park his vehicle in

the garage rented by Appellant and Cline. (12RR at MTS Ex. 15 at p. 6 of 7).

         On October 1, 2012, the affiant had a meeting with a detective with the

Department of Public Safety who told the affiant that he also had learned that

Appellant was supplying narcotics to the Katy area. (12RR at MTS Ex. 15 at p. 6

of 7).

         On October 18, 2012, the affiant saw Appellant engage in what appeared to

be two hand-to-hand drug transactions. (12RR at MTS Ex. 15 at p. 6 of 7).

                                           4
         On October 24, 2012, Detective Hricko conducted a dog sniff of the

apartment and garage. (12RR at MTS Ex. 15 at p. 6-7). The dog alerted to the

presence of a narcotic odor on the garage and the apartment. (12RR at MTS Ex.

15 at p. 7 of 7).

         The search warrant was signed by the reviewing magistrate at 5:30 p.m. on

October 24, 2012. (12RR at MTS Ex. 15 at p. 1 of 7). The search warrant was

executed on the same day (12RR at MTS Ex. 15 at p. 2 of 7). The search of the

apartment yielded marijuana, pills, cocaine, two scales, money, pharmacy bottles, a

key, and a remote control for a garage door opener. (12RR at MTS Ex. 15 at p. 2

of 7).

         The Search Warrant for Appellant’s Garage

         Exhibit 16 was the search warrant and supporting affidavit for the search of

Appellant’s garage. (3RR98; 12RR at MTS Ex. 16). This search warrant affidavit

stated that on or about February 21, 2012, a confidential informant had provided

the police with information that Appellant was selling cocaine and prescription

pills and using both his residence and a leased garage unit to facilitate these sales.

(12RR at MTS Ex. 16 at p. 5 of 7). The confidential informant was believed to be

credible because he or she had “provid[ed] reliable information in the past that was

proven credible in that he information lead to the arrest of individuals found in

possession of contraband.” (12RR at MTS Ex. 16 at p. 5 of 7).

                                           5
      The affidavit also stated that Appellant was on parole for narcotics

convictions from Louisiana. (12RR at MTS Ex. 16 at p. 5 of 7).

      The affidavit also related that other independent sources informed the police

that Appellant supplied “both pills and cocaine to the Katy area bars and

individuals in the area.” (12RR at MTS Ex. 16 at p. 5 of 7). The affidavit also

stated that Appellant was named by arrestees as being the source of narcotics in

their possession on two different occasions. (12RR at MTS Ex. 16 at p. 5 of 7).

      In April of 2012, a reliable confidential informant told the police where

Appellant was living and that he was living with Laura Cline. (12RR at MTS Ex.

16 at p. 5 of 7). The confidential informant told police that Cline was helping

Appellant sell drugs. (12RR at MTS Ex. 16 at p. 5 of 7). The affiant learned that

Cline’s name was on the apartment lease and that she and Appellant rented a

garage on the premises. (12RR at MTS Ex. 16 at p. 5 of 7).

      On May 8, 2012, the affiant saw Appellant and Cline meet in a parking lot of

the apartment complex where the confidential informant said they lived and where

Cline’s name was on the lease. (12RR at MTS Ex. 16 at p. 5 of 7). On the same

day, the affiant saw Appellant use a remote control to open the garage door to the

garage that Appellant and Cline rented, which was the subject of this search

warrant. (12RR at MTS Ex. 16 at p. 5 of 7).



                                        6
         Appellant was then stopped for a traffic violation, and a subsequent search

of his vehicle following a positive dog alert to the odor of narcotics revealed

approximately $6,000 in cash and prescription pills belonging to Appellant. (12RR

at MTS Ex. 16 at p. 6 of 7).

         On September 18, 2012, the affiant was told by Detective Arredondo that

patrons of the Frankenstein’s sports bar on Mason road had made complaints that

Appellant was selling drugs there. (12RR at MTS Ex. 16 at p. 6 of 7). Thereafter,

after “multiple days of surveillance,” the affiant saw Appellant park his vehicle in

the garage rented by Appellant and Cline. (12RR at MTS Ex. 16 at p. 6 of 7).

         On October 1, 2012, the affiant had a meeting with a detective with the

Department of Public Safety who told the affiant that he also had learned that

Appellant was supplying narcotics to the Katy area. (12RR at MTS Ex. 16 at p. 6

of 7).

         On October 18, 2012, the affiant saw Appellant engage in what appeared to

be two hand-to-hand drug transactions. (12RR at MTS Ex. 16 at p. 6 of 7).

         On October 24, 2012, Detective Hricko conducted a dog sniff of the

apartment and garage. (12RR at MTS Ex. 16 at p. 6-7). The dog alerted to the

presence of a narcotic odor on the garage and the apartment. (12RR at MTS Ex.

16 at p. 7 of 7).



                                          7
      The search warrant was signed by the reviewing magistrate at 5:30 p.m. on

October 24, 2012. (12RR at MTS Ex. 16 at p. 1 of 7). The search warrant was

executed on the same day (12RR at MTS Ex. 16 at p. 2 of 7). The search of the

garage yielded pills, cocaine, ecstasy, money, a scale, and a remote control for the

garage door opener. (12RR at MTS Ex. 16 at p. 2 of 7).

       Evidence Regarding whether the dog sniff was conducted within the
curtilage of a home

      Investigator Hricko with the Fort Bend County Narcotics Task Force who

testified that he was responsible for acting as a uniformed officer and canine

handler for the Task Force. (2RR6-8). Hricko worked with a canine named Mike.

(2RR9).   Hricko and Mike were certified to work together as a canine unit.

(2RR11-12).

      Hricko and Mike conducted the dog sniffs of Appellant’s home and garage

which was referenced in the search warrant affidavits. (3RR95).

      The State introduced photographs of the apartment complex, including the

stairwell which went past Appellant’s apartment. (12RR at MTS Exs. 1-10). The

State also introduced photographs showing the detached garage. (12RR at MTS

Exs. 1-10).

      The photograph in State’s Exhibit 7 shows the stairwell and the front door of

Appellant’s apartment from above.        (3RR67; 12RR at MTS Ex. 7).            The


                                         8
photograph in State’s Exhibit 8 shows the stairwell and the front door of

Appellant’s apartment from below. (3RR67; 12RR at MTS Ex. 8).

      Detective Newton of the Fort Bend County Narcotics Task Force testified

that the area in front of Appellant’s apartment was an area where tenants came and

went and tenants and their guests used it as a common area. (3RR116).

      The photograph in State’s Exhibit 4 shows the building which contained

Appellant’s apartment, and across the parking lot, the building which contained

approximately nine garages, including Appellant’s. (3RR67; 12RR at MTS Ex. 4).

      The trial court denied Appellant’s motions to suppress the search of his

garage and apartment. (4RR62). In so doing, the trial court expressed its opinion

that the areas which were the subject of the dog sniff did not come within the

definition of curtilage as defined in Jardines. (4RR59).

      The Trial

      Detective Arredondo of the Fort Bend County Sheriff’s Office testified that

he observed Appellant engaging in activities that appeared to him to be narcotics

transactions in 2011 and 2012 at a bar where Arredondo was working an extra job.

(7RR25). These included quick interactions with numerous patrons and going into

the bathroom with numerous patrons. (7RR36-37). Arredondo had seen Appellant

because he and Appellant lived at the same apartment complex. (7RR26-27).



                                         9
      Arredondo responded to a call of a break in at Appellant’s apartment on July

29, 2011, and found narcotic pills in the apartment next to a dresser with men’s

clothing items in it. (7RR31-34; 12RR at Ex. 131-138). Appellant told Arredondo

that these pills were Appellant’s prescription medication. (7RR42).

      Charlie Scott of the Fulshear Police Department testified that while he was

with the Fort Bend County Sheriff’s Office, he worked as a courtesy officer at

Appellant’s apartment complex. (7RR50). Scott worked at Appellant’s apartment

complex from 2010 through October or November of 2012. (7RR51). Scott

became aware of Appellant because Appellant drove a flashy car and came and

went at all hours of the day and night. (7RR53). Scott knew Appellant to use a

garage on the north end of the parking lot and had seen Appellant’s car in that

garage. (7RR54). Scott knew Appellant to be living with a female, but did not

know her name. (7RR54). Scott knew Appellant’s girlfriend to drive a white

Chevy Impala, but had not seen that car in the garage. (7RR54-55).

      Scott was told by a concerned resident that he knew only as Pete that Pete

believed Appellant was up to something suspicious. (7RR55).

      Scott made a traffic stop of Appellant’s vehicle at one time with Appellant

driving, and Appellant seemed extremely nervous.       (7RR57).       Scott searched

Appellant’s vehicle and located a substantial amount of money and an “abnormally



                                        10
large” amount of pills, but those pills had Appellant’s name on them, so he was not

arrested. (7RR57). Scott told Detective Newton about this encounter. (7RR59).

      Scott identified Appellant as the person he was talking about, and stated that

the activities he observed Appellant engaged in were consistent with someone

engaged in the sale of narcotics. (7RR76-77).

      Detective Hricko of the Fort Bend County Sheriff’s Office had his drug dog

attempt to find the odor of narcotics at Appellant’s apartment complex. (8RR34).

Photographs of Appellant’s apartment complex and garage were introduced into

evidence. (8RR34; 12RR at Ex. 63-72). Hricko ran his dog on October 24, 2012.

(8RR35).

      Hricko took his dog to the stairwell that ran past Appellant’s apartment, and

Hricko’s dog sniffed his way along that stairwell until he stopped at Appellant’s

doorway, indicating he smelled the odor of narcotics emanating from Appellant’s

apartment. (8RR38).     Hricko also ran his dog on the detached garages, and his

dog alerted to the presence of narcotics emanating from garage A3, which was

Appellant’s garage. (8RR42).

      After running his dog, Appellant saw a blue Honda enter garage A3, and

Appellant was the passenger in that vehicle. (8RR44).

      Hricko ran his dog inside Appellant’s apartment after the search warrant was

procured and the dog alerted to the presence of narcotics inside the apartment,

                                        11
above the kitchen cabinets. (8RR47). A large quantity of cocaine was recovered in

that location. (8RR47). Hricko’s dog also alerted in the bedroom dresser and

narcotics were found there as well.     (8RR48).    Hricko’s dog also ran inside

Appellant’s garage and alerted to the presence of narcotics inside a Walgreens bag,

which ultimately was found to contain narcotics. (8RR48).

       Hricko identified Appellant as the person he knew to be Walter Jackson – the

target of the investigation. (8RR50).

       Sergeant Baker of the Fort Bend County Narcotics Task Force testified that

during the search of Appellant’s apartment, marijuana was found in the kitchen

cabinet.   (9RR19; 12RR at Ex. 21). A scale, the type of which is typically

associated with narcotics distribution was also located. (9RR19-20; 12RR at Ex.

22).

       Cocaine was found in the cabinet above the refrigerator. (9RR20-21; 12RR

at Ex. 26). A beaker was found with this cocaine, which is typically used to

convert powder cocaine into crack cocaine. (9RR21; 12RR at Ex. 27). The

apartment also contained oxycodone and fentanyl. (9RR39).

       A dresser in the apartment contained both men’s and women’s clothes,

divided between each side of the dresser. (9RR22-23; 12RR at Ex. 34).

       A 500 count bottle of hydrocodone, the kind a distributor would send to a

pharmacy rather than for retail sale, was also found in the apartment. (9RR23-24;

                                        12
12RR at Ex. 37). Multiple bags of cocaine and a scale with cocaine residue on it

were also discovered in Appellant’s apartment. (9RR24-25; 12RR at Exs. 39-40).

      Narcotics, and money were found in the garage, in particular inside a baby

carrier. (9RR37; 12RR at Ex. 43, 45). The garage was found to contain a 500

count bottle of hydrocodone, suboxone, and fentanyl. (9RR27-28; 12RR at Ex.

53). The garage also contained cocaine, oxycodone and ecstacy. (9RR38-40).

      Paperwork with Appellant’s name on it was also found inside the garage.

(9RR27; 12RR at Ex. 49-50). A picture of Appellant with a small child was also

found in the garage. Paperwork with Appellant’s name on it was also found inside

the garage. (9RR30; 12RR at Ex. 61). The garage also contained a lot of male

clothing. (9RR66).

      Detective Newton of the Fort Bend County Narcotics Task Force initially

began his investigation into Appellant’s illegal activities based on a tip from a

confidential informant named Stephanie Due.        (9RR87).    This confidential

informant told Newton who Appellant was, what types of narcotics he sold and

where he could be found. (9RR87). A second confidential informant, who was not

named, gave Newton information as to the continuing nature of Cline’s and

Appellant’s relationship. (9RR65).

      Newton also was informed by Detective Arredondo that Arredondo believed

Appellant was engaged in the sale of narcotics. (9RR88). Based on these pieces of

                                       13
information, Newton conducted surveillance of Appellant at the bar in Katy where

Arredondo worked an extra job in September of 2012. (9RR90).

      Newton saw Appellant coming and going from the aforementioned bar on

many occasions and also saw Appellant coming and going from the apartment

which was the subject of the search warrant on many occasions. (9RR91-94).

Newton also saw Appellant go in and out of the garage which was the subject of

the search warrant. (9RR96).

      Newton did not see Laura Cline, Appellant’s girlfriend, go out of the garage,

but did see her and Appellant go in and out of the apartment together several times.

(9RR96). Newton followed Cline several times and she always appeared to be

engaged in legitimate activities, rather than drug sales as with Appellant. (9RR97).

      Newton saw Appellant engage in a pair of “hand-to-hand” transactions on

October 18, 2012, which appeared in his mind to be drug deals. (9RR100-02). In

May of 2012, Newton saw Appellant with a brown paper bag tucked under his arm

go to his car. (9RR106-07). Scott made a traffic stop on Appellant’s vehicle, and a

canine later alerted to the presence of narcotics in Appellant’s vehicle. (9RR108).

The search of Appellant’s vehicle based on this traffic stop revealed the presence of

what appeared to be cocaine in the floor mat, $6,000 cash and prescription pills.

(9RR109-10).



                                         14
      Newton identified the following items as having been recovered during the

search:

137.7 grams of cocaine was located above the refrigerator (9RR133);

118 hydrocodone pills weighing 96.13 grams above the refrigerator (9RR133);

116 pills labeled Watson 502 (Xanax) in the garage (9RR133);

A box of Fentanyl in the garage and additional Fentanyl above the refrigerator for a

total of 19.5 grams (9RR133, 146);

4 grams of Ecstacy in the garage (9RR135);

7.38 grams of cocaine in the garage (9RR145);

892.8 grams of hydrocodone in the garage (9RR145)

13.13 grams of oxycodone found above the refrigerator (9RR146);

7 grams of oxycodone found in the garage (9RR146);

20.99 grams of Suboxone found in the garage (9RR146);

66.6 grams of suboxone found in the bedroom closet with another 21.5 grams

above the refrigerator (9RR146).

      Laura Cline was much smaller physically than the six-foot-four Appellant.

(9RR150). The drugs hidden above the refrigerator would have been difficult for

Cline to reach. (9RR150-51).

       Cline testified that she was introduced to Appellant during the course of a

drug deal.    (10RR94).     Cline moved into the Residences at Cinco Ranch

                                        15
apartments, in the apartment that was the subject of the search warrant with

Appellant in 2012. (10RR97). Appellant paid the rent. (10RR97). Appellant

made his living selling drugs. (10RR97).

      Cline had seen Appellant with prescription bottles and believed he used

these in selling drugs. (10RR97). Cline believed Appellant to sell drugs mostly in

“random parking lots,” including the parking lot of the bar where Detective

Arredondo worked an extra job. (10RR99).

      Appellant told Cline not to touch the cabinet above the refrigerator.

(10RR100). Appellant was living with Cline on the day the search warrants were

executed. (10RR101-02). Appellant had the key to the garage and Cline never had

access to the garage unless Appellant specifically allowed her in. (10RR102).

Appellant had his own key to the apartment and could come and go as he pleased.

(10RR102). The men’s clothing that was in the apartment closet and dresser on the

day the search warrants were executed belonged to Appellant. (10RR103).

      Appellant told Cline about being ripped off in a drug deal. (10RR104).

Later, he told her that he got “the real thing.” (10RR104). Cline saw Appellant put

the paper bag in the cabinet on top of the refrigerator. (10RR109). Appellant told

Cline that he made crack cocaine, but she never saw him make it at their

apartment. (10RR109).

      Cline never knew Appellant to have legitimate employment. (10RR113).

                                        16
                       SUMMARY OF THE ARGUMENT

      Appellant first argues that the dog sniffs used in the underlying search

warrant affidavits were illegal under Jardines. The State responds that these dog

sniffs did not take place within the curtilage of a home, and are therefore not illegal

even applying Jardines.      Were this Court to hold that these searches were

conducted within the curtilage of the home, the Court should allow the good faith

exception to apply and not exclude this evidence because the police and magistrate

relied on the law as it then existed. Finally, the search warrant affidavits provided

adequate probable cause to search these locations, whether the dog sniffs are

included or not.

      The evidence was legally sufficient to affirmatively link Appellant to the

narcotics in the apartment and the garage because he was seen coming and going

from these locations several times, his belongings were in the home and garage,

and his live-in girlfriend testified the drugs were Appellant’s.

      Appellant has not brought forth a sufficient record on appeal to establish that

his trial counsel was ineffective, nor that he was prejudiced by any such

ineffectiveness.

      Appellant has not brought forth a sufficient record to establish that any

evidence was withheld or destroyed, nor that it would have been material to his

defense.

                                          17
      Appellant was made aware of the circumstances of Laura Cline’s agreement

with the State, and it was specifically referenced during her direct examination.

Appellant made no claim during trial that he was unaware of anything relating to

Cline’s testimony.

      The trial court did not abuse its discretion in denying Appellant’s motion for

a mistrial because the trial court gave an effective curative instruction.

Response to Appellant’s First and Second Points of Error

     THE SEARCH WARRANT AFFIDAVIT WAS SUFFICIENT TO
 ESTABLISH PROBABLE CAUSE TO SEARCH THE APARTMENT AND
  GARAGE BECAUSE THE JARDINES RULING DOES NOT APPLY TO
  THESE LOCATIONS, AND EVEN IF IT DID, THIS COURT SHOULD
 REFUSE TO SUPPRESS THE EVIDENCE BECAUSE THE POLICE AND
 REVIEWING MAGISTRATE RELIED ON THEN-EXISTING BINDING
PRECEDENT IN THE PROCUREMENT AND REVIEW OF THE SEARCH
 WARRANT, AND EVEN IF THE DOG SNIFF IS REMOVED FROM THE
   AFFIDAVIT, THERE WAS STIL SUFFICIENT PROBABLE CAUSE

                                Standard of Review

      Trial courts’ rulings on motions to suppress evidence are generally reviewed

under a bifurcated standard of review, giving almost total deference to the facts

found by the trial court and reviewing de novo its application of the law. See

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). When a trial

court’s ruling is a determination of whether there was probable cause to support a

search warrant, the court is constrained to the four corners of the warrant and there

are no credibility determinations to be made. State v. McLain, 337 S.W.3d 268,

                                          18
271 (Tex. Crim. App. 2011).       “[B]ecause of the constitutional preference for

searched to be conducted pursuant to a warrant as opposed to a warrantless

search,” the sufficiency of an affidavit is reviewed to determine if there is a

substantial basis upon which the magistrate could have concluded that probable

cause existed. Id. (citing Illinois v. Gates, 462 U.S. 213, 236 (1983). For the same

reason, the review is “highly deferential” to the magistrate’s decision. Id. This

deference is extended to the magistrate’s determination of probable cause in order

to encourage the use of warrants, which “greatly reduces the perception of

unlawful or intrusive police conduct.” Gates, 462 U.S. at 236. “This substantial

basis standard of review does not mean the reviewing court should be a rubber

stamp but does mean that the magistrate’s decision should carry the day in doubtful

or marginal cases, even if the reviewing court might reach a different result upon

de novo review.” Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)

(internal quotations omitted).

        A search warrant may not issue without a sworn affidavit showing facts

sufficient to establish probable cause. Tex. Code. Crim. Proc. art. 18.01(b), (c).

Probable cause exists when there is a fair probability that contraband or evidence

of a crime will be found at the specified location at the time the warrant is issued.

See McLain, 337 S.W.3d at 272. To establish probable cause, the affidavit must

show:

                                         19
      (1) that a specific offense has been committed, (2) that the specifically
      described property or items that are to be searched for or seized
      constitute evidence of that offense or evidence that a particular person
      committed that offense, and (3) that the property or items constituting
      evidence to be searched for or seized are located at or on the particular
      person, place, or thing to be searched.

Tex. Code Crim. Proc. art. 18.01(c). “The facts stated in a search warrant affidavit

‘must be so closely related to the time of the issuance of the warrant that a finding

of probable cause is justified.’” McLain, 337 S.W.3d at 272 (quoting Flores v.

State, 827 S.W.2d 416, 418 (Tex. App.—Corpus Christi 1992, pet. ref’d)).

      When reviewing a search warrant affidavit under the “substantial basis”

standard, the affidavit is to be interpreted in a commonsense and realistic manner,

giving deference to all reasonable inferences that the magistrate could have made.

See Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Jones v. State,

338 S.W.3d 725, 733 (Tex. App.—Houston [1st Dist.] 2011 aff’d 364 S.W.3d 854

(Tex. Crim. App. 2012). The reviewing court will consider the totality of the

circumstances, including whether any tips have been corroborated by independent

police work. Gates, 462 U.S. at 238; see Rodriguez, 232 S.W.3d at 62.

      However, when an affidavit contains tainted information, the same deference

to the magistrate’s determination is not called for. State v. Le, 463 S.W.3d 872, 877

(Tex. Crim. App. 2015). “‘When part of a warrant affidavit must be excluded from

the calculus [because that information was illegally obtained] … then it is up to the

reviewing courts to determine whether the independently acquired and lawful
                                         20
information stated in the affidavit nevertheless clearly established probable

cause.’” Id. quoting McClintock v. State, 444 S.W.3d 15, 19 (Tex. Crim. App.

2014). A search warrant which was issued based in part on illegally obtained

information is “nonetheless valid if it clearly could have been issued on the basis

of the untainted information in the affidavit.” Id., quoting Brown v. State, 605

S.W.2d 572, 577 (Tex. Crim. App. 1980).

      Reviewing courts will still review the affidavit, even after it is purged of its

illegally obtained portions, in keeping with the mandate of Illinois v. Gates, that it

be reviewed in a commonsense, realistic manner, drawing reasonable inferences

from the information contained in it. Rodriguez, 232 S.W.3d at 61.

                            Argument and Authorities

      Appellant argues in his first point of error that the Jardines ruling disallowed

the dog sniff in this case, and the police and reviewing magistrate were not entitled

to rely on then-existing precedent in allowing the search warrant based on the dog

sniff to issue. App. Br. at p. 16. In his second point of error, Appellant argues that

the search warrant affidavits did not establish probable cause. App. Br. at p. 29.

Because these two points of error are necessarily intertwined, the State will address

them jointly.




                                          21
       The search warrants were properly issued, and the dog sniff was not
illegal even applying Jardines because it was not conducted within the
curtilage of a home

      In Jardines, the United States Supreme Court held that a dog sniff on the

defendant’s front door was a search, and the entry by the police dog onto the

curtilage of the defendant’s home was a trespassory invasion of the defendant’s

privacy. Florida v. Jardines, 133 S.Ct. 1409, 1414-15 (2013). The Supreme Court

held in Jardines that the government violated the defendant’s Fourth Amendment

rights by “gathering information in an area belonging to Jardines … in the curtilage

of the house, which we have held enjoys protection as part of the home itself.” Id.

at 1414.

      Whether a particular area is part of a curtilage is determined by whether the

defendant had a reasonable expectation of privacy in the area. Matthews v. State,

165 S.W.3d 104, 112 (Tex. App. - Fort Worth 2005, no pet.). Some of the Factors

to be considered are whether the accused had a complete dominion or control of

the area, whether he had the right to exclude others, whether he took normal

precautions customarily taken by those seeking privacy, and whether he put the

place to some private use. Villareal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App.

1996). A public place is not within the curtilage. Matthews, 165 S.W.3d at 112.

The Texas Penal Code has defined a "public place" as "any place to which the

public or a substantial group of the public has access and includes, but is not

                                         22
limited to streets, highways, and the common areas of ...apartment houses." Tex.

Pen. Code §1.07(a)(40).

             The dog sniff at the garage

      The garage that Appellant used, and kept narcotics in, was a detached

garage, distant from the apartments themselves and distant, in particular, from

Appellant’s apartment. (12RR at MTS Ex. 4). There is a significant body of case

law standing for the proposition that the garage in this case was not part of the

curtilage of Appellant’s home. See, e.g., United States v. Dunn, 480 U.S. 294, 301

(1987) (barn separate from a ranch house was not within the curtilage of the

home); Evans v. State, 995 S.W.2d 284, 286 (Tex. App.—Houston [14th Dist.]

1999, pet. ref’d) (common areas of an apartment complex not part of the curtilage

of the home); Cuero v. State, 845 S.W.2d 387, 391 (Tex. App.—Houston [1st Dist.]

1992, pet. ref’d) (parking lot of an apartment complex not part of the curtilage of

the home).

      The dog sniff on Appellant’s garage took place at a location that was not

within the curtilage of the home as that term has been defined by the above

precedents. Therefore, even applying Jardines to this case, the dog sniff conducted

at Appellant’s garage was legal because no trespassory invasion of Appellant’s

home took place in the course of this dog sniff. Therefore, the search warrant



                                        23
which was issued based in part on that dog sniff was legal and the trial court did

not err in refusing to suppress the narcotics found in the garage.

             The dog sniff outside Appellant’s apartment

      The dog sniff outside of Appellant’s apartment presents a closer call than

that outside his garage. However, there is still precedent for the proposition that

this search also did not involve a trespassory invasion of Appellant’s privacy rights

in keeping with the mandate of Jardines.

      The public areas of an apartment complex are not considered part of the

curtilage of the home. Evans, 995 S.W.2d at 286; Cuero, 845 S.W.2d at 391;

Williams v. State, No. 05-07-00704-CR, 1998 WL 348320 (Tex. App.—Dallas

1998, no pet.) (not designated for publication); see United States v. Ramirez, 145

Fed. Appx. 915, 923 (5th Cir. 2005).

      The front door of Appellant’s apartment complex, where the dog sniff took

place, is along a breezeway with a staircase at either end. (12RR at MTS Ex. 1-3,

7-10). This breezeway allows for other residents and members of the public to

access it and to walk freely through it. Even were Appellant able to make an

argument that he should be able to restrict the access of passersby to his front door,

in this case any person with any particular purpose could walk past his door for any

given purpose in order to go to any other apartment on that floor. Appellant’s

ability to restrict the access of outsiders was far less than that in Jardines, or in

                                          24
McClintock wherein a dog sniff was suppressed post-Jardines. McClintock v.

State, 405 S.W.3d 277, 280 (Tex. App.—Houston [1st Dist.] 2013, rev’d on other

grounds 444 S.W.3d 15 (Tex. Crim. App. 2014) (landing where dog sniff took

place outside of defendant’s apartment was not a common area in that it led only to

the defendant’s door).

      Because the dog sniff outside Appellant’s apartment too place in a common

area where Appellant could not meaningfully restrict the access of the public, it

should be considered not to have taken place within the curtilage of the home in

contrast with McClintock. Therefore, the dog sniff should be considered legal and

the search warrant based in part upon it should be held to have been issued

lawfully. The trial court did not err in refusing to suppress the evidence obtained in

the search of Appellant’s apartment.

       Even if Jardines would disallow the dog sniffs were it applied to this
case, it should not be applied to this case because the police and magistrate
relied on then existing precedent in seeking and issuing the search warrant

      The Supreme Court held in Jardines, that a dog sniff of a curtilage without a

warrant is a Fourth Amendment violation. Florida v. Jardines, 133 S. Ct. 1409,

1415-18 (2013). However, the question of whether exclusion is appropriate is

separate from the question of whether a dog sniff is constitutional. United States v.

Leon, 468 U.S. 897, 906 (1984). The State therefore urges this Court to consider

whether the exclusionary rule should be applied here, in keeping with the Court of

                                          25
Criminal Appeals’ order that the First Court of Appeals consider that question in

McClintock.    McClintock, 444 S.W.3d 15 (Tex. Crim. App. 2014) (remanding for

lower court to consider whether a good faith exception to the Texas exclusionary

rule should be applied). It should be noted that the First Court of Appeals has since

held that there was no good faith exception to the Texas exclusionary rule in

McClintock on remand, but the Court of Criminal Appeals has not yet addressed

this. McClintock v. State, No. 01-11000572-CR, 2015 WL 6851826 (Tex. App.—

Houston [1st Dist.] 2015, no pet. h.).

      Courts created the exclusionary rule for the "sole purpose" of deterring

future fourth amendment violations. Davis v. United States, 131 S.Ct. 2419, 2427

(2011).Therefore, suppression is appropriate "only in those unusual cases in which

exclusion will further [that purpose]." Leon, 468 U.S. at 918. It is one thing for the

defendant to go free because the police blundered. Davis, 131 S.Ct. at 2434. It is

another to set the criminal free because the officer "scrupulously adhered to

governing law." Id. Evidence should be "suppressed only if it can be said that the

law enforcement officer had knowledge...that the search was unconstitutional

under the Fourth Amendment." Leon, 468 U.S. at 919.

      In this case, the dog sniff occurred before the ruling in Jardines was issued

by the United States Supreme Court, and the police did not have knowledge that

the search was unconstitutional. Instead, they were following the numerous cases

                                         26
that told them a dog sniff was not a search, and therefore not a violation of the

constitution. The United States Supreme Court previously held that a dog sniff is

not a search because a dog sniff will alert only to the presence of narcotics, and

"any interest in possessing contraband cannot be deemed 'legitimate'." Illinois v.

Caballes, 543 U.S. 405, 409-410 (2005). The Fifth Circuit also repeatedly held that

a dog sniff is not a search. United States v. Seals, 987 F.2d 1102, 1106 (5th Cir.

1993); United States v. Hernandez, 976 F.2d (5th Cir.), cert. denied, 508 U.S. 914

(1993); United States v. Dovali-Avila, 895 F.2d 206 (5th Cir. 1990).

      Texas courts also adhered to this rule and held that a dog sniff outside a

residence is not a search under the Fourth Amendment. See Rodriguez v State, 106

S.W.3d 224 (Tex.App.—Houston [1st Dist.] pet. ref’d) (a dog sniff is not a search

because it does not reveal anything about the house other than the presence of an

illegal narcotic); Porter v. State, 93 S.W.3d 342 (Tex.App.—Houston [14th Dist.]

pet. ref’d) (held that a dog sniff is an investigative technique, not a violation of the

Fourth Amendment); Romo v. State, 315 S.W.3d 565 (Tex.App.—Fort Worth pet.

ref’d) (areas not protected from observation have no reasonable expectation of

privacy, and therefore dog sniff searches are not violations of the Fourth

Amendment or the Texas Constitution).

      When the police engaged in the dog sniffs and then sought search warrants

based on them, they were complying with the current standing of criminal

                                          27
procedure law at that time and arguably as it sits still today as this case does not

involve the curtilage of a residence. However, should this Court disagree with the

State’s position on the application of curtilage in either of the search warrants

issued, the apartment or the detached garage unit, the Court should find instructive

the recent opinion of Taylor v. State 410 S.W.3d 520, 527 (Tex.App.—Amarillo

2013, no pet.). In Taylor the court examined a parallel issue of whether to apply

the exclusionary rule to suppress evidence received by use of a GPS monitoring

device that was installed under previous criminal procedure standards deemed

acceptable by the litany of case law and statutory guidance in the code of criminal

procedure prior to the ruling in U.S. v Jones, 132 S. Ct. 945 (2012). In Jones, the

Supreme Court ultimately held that a warrantless installation and use of a GPS

tracking device on a suspect’s vehicle constitutes a “search” under the Fourth

Amendment. Prior to this ruling law enforcement officers, as did the officers in

Taylor, relied on the statutory guidance provided by section 14 of the Article 18.21

of the Texas Code of Criminal Procedure which allowed for law enforcement

officers to apply for “Order Authorizing Installation and Utilization of a Mobile

tracking Device.” See id. Further, the Taylor court rationalized that there existed

several United States courts of Appeal, including the Fifth Circuit, and United

States Supreme Court holdings which approved warrantless installation and



                                         28
monitoring of GPS units on vehicles remaining on public roads. See id. In its final

holding, the Taylor court ruled:

      Based on the state of the law as it existed at the time the mobile
      tracking device was installed on the vehicle being driven by Appellant
      (Taylor), even assuming without deciding that a Fourth Amendment
      violation occurred and the suppression would otherwise be
      appropriate, the evidence in this case would not have been subject to
      the exclusionary rule because the officers acted in reasonable reliance
      on federal precedent in the majority of the federal circuit courts of
      appeal, including the Fifth Circuit, that had considered the issue where
      the installation of the device otherwise complied with the “reasonable
      suspicion” standard in article 18.21, section 14 of the Texas Code of
      Criminal Procedure.

See id.

This ruling is further consistent with a Fifth Circuit Court of Appeals holding that

concluded “searches conducted in objectively reasonable reliance on binding

appellant precedent are not subject to the exclusionary rule.” Davis v. United

States, 131 S. Ct. 2419, 2423-24 (2011). The same parallel argument applies to the

actions of the Task Force in this present case whereby they utilized an open air

sniff by a trained and certified narcotic detecting dog on Appellant’s apartment and

detached garage.

      It should of course be noted that Appellant relies not only on the federal, but

the State exclusionary rule. That being the case, the State again urges this Court to

consider whether a good faith exception applies to the State exclusionary rule in

Texas Code of Criminal Procedure article 38.23. In so doing, the State would urge

                                         29
this Court to examine the wording of that article, which states that evidence

obtained in violation of law is to be suppressed. Tex. Code Crim. Proc. art.

38.23(a). In this case, the evidence was not obtained in violation of law – to the

contrary, the police complied with the law as it then existed. Further, section (b) of

the article states that it is “an” exception to the requirement that illegally obtained

evidence be suppressed that it was obtained in reliance on a warrant issued based

on probable cause.      However, the article does not state that this is the only

exception.

         The State would urge this Court to consider whether good faith applies as an

exception to article 38.23 as the Court of Criminal Appeals mandated in

McClintock, and in opposition to its sister court, hold that this exception does

apply.

      The search warrant affidavits established probable cause to issue the
search warrants for Appellant’s garage and apartment

         Appellant argues in his second point of error that the search warrant

affidavits did not establish probable cause. App. Br. at p. 29. Because the legality

of the searches based on the search warrant affidavits require analysis of whether

the affidavits were sufficient to establish probable cause with or without the dog

sniffs depending on how this Court rules as to the legality of those dog sniffs, both

scenarios are addressed here.


                                          30
      The search warrant affidavits when considered with the dog sniffs

      A dog hit, by a trained and certified narcotics dog provides probable cause

for a search warrant. See Florida v. Harris, 133 S.Ct. 1050, 1058 (2013); Romo v.

State, 315 S.W.3d 565, 573 (Tex. App.—Fort Worth 2010, pet. ref’d); Rodriguez v.

State, 106 S.W.3d 224, 229 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d),

Wilson v. State, 98 S.W.3d 265, 272 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d). Because the K-9 “Mike” in this case has been certified by the National

Narcotic Detector Dog Association, and the defendant has not successfully

challenged the reliability of the dog, there was probable cause for a search warrant

based on the open air sniff positive alert for the presence of narcotic odor on

Appellant’s apartment and garage.

      These dog sniffs were conducted on the same day that the search warrants

were executed, and therefore the information gleaned from them, that narcotics

would likely be found in those locations, was by no means stale. In short, the dog

sniffs in and of themselves essentially would have provided probable cause for the

issuance of the search warrants. Of course, there was significant other information

included in the search warrant affidavits, which would have provided probable

cause for the issuance of the warrants even not considering the dog sniffs.




                                         31
      Even excising the dog sniffs from the affidavits, the search warrants
establish probable cause to search Appellant’s apartment and garage

      Probable cause is "a conclusion that the object of the search is probably on

the premises to be searched." Davis v. State, 202 S.W.3d 149, 154 (2006). Courts

may also draw reasonable inferences from facts contained within the affidavit. Id

at 157. If the dog alert is removed from consideration by this Court, there still

exist sufficient facts constituting probable cause for issuance of each search

warrant, for the apartment and the garage. The information in the affidavit is to be

viewed based on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213,

238 (1983).

      The search warrant affidavits state that (1) on February 21, 2012, a

confidential informant had information that Appellant was selling drugs from the

apartment and garage he shared with his girlfriend Laura Cline; (2) Appellant was

named by arrestees as being the source of narcotics in their possession on two

different occasions; (3) in April of 2012, a reliable confidential informant told the

police where Appellant was living and that he was living with Laura Cline; (4) on

May 8, 2012, the affiant saw Appellant and Cline meet in a parking lot of the

apartment complex where the confidential informant said they lived and where

Cline’s name was on the lease; (5) Appellant was on parole for narcotics violations

in Louisiana; (6) on the same day, the affiant saw Appellant use a remote control to

open the garage door to the garage that Appellant and Cline rented; (7) Appellant
                                         32
was then stopped for a traffic violation, and a subsequent search of his vehicle

following a positive dog alert to the odor of narcotics revealed approximately

$6,000 in cash and prescription pills belonging to Appellant; (8) on September 18,

2012, the affiant was told by Detective Arredondo that patrons of the

Frankenstein’s sports bar on Mason road had made complaints that Appellant was

selling drugs there; (9) after “multiple days of surveillance,” the affiant saw

Appellant park his vehicle in the garage rented by Appellant and Cline; (10) on

October 1, 2012, the affiant had a meeting with a detective with the Department of

Public Safety who told the affiant that he also had learned that Appellant was

supplying narcotics to the Katy area; (11) on October 18, 2012, the affiant saw

Appellant engage in what appeared to be two hand-to-hand drug transactions.

(12RR at MTS Ex. 15, 16).

       "Hearsay may be used to show probable cause so long as there is a

substantial basis for crediting the hearsay." Jones v. State, 338 S.W.3d 725 (Tex.

App.—Houston [1st Dist.] 2011) aff’d 364 S.W.3d 854 (Tex. Crim. App. 2012). In

this case, the affidavit stated that the informant had provided credible and reliable

information in the past. Even if the first informant was not reliable, other sources

supplied the same information to the police, there a failure to "establish the first

informant's reliability or credibility is therefore not fatal.” Id. at 735.



                                            33
      When the police confirmed Appellant’s address and saw him leave and

return to that address, they demonstrated that Appellant had been seen at a location

where, taken with the other evidence, there was a fair probability that illegal drugs

would be found. State v. York, 404 S.W.3d 681, 686 (Tex. App. —Fort Worth,

2013, pet. ref’d). In York, as in this case, the fact that the defendant had previous

offenses relating to narcotics, and the fact that the defendant had been connected to

individuals involved in drugs, gives further weight that there was a fair probability

that controlled substances would be found at the specified address. Id. at 685.

      The surveillance and other information about Appellant’s illegal narcotics

activity had been ongoing for several months. This fact, combined with the fact

that Appellant had been known to inhabit the same residence and use the same

garage over this lengthy period, lends credence to the notion that it was likely that

drugs would be found in these locations. In short, the reviewing magistrate had

sufficient information on which to base a finding that there existed probable cause

to believe narcotics would be found in these locations.

      Appellant’s first and second points of error should be overruled.




                                         34
Response to Appellant’s Third Point of Error

 THE EVIDENCE WAS LEGALLY SUFFICIENT TO “AFFIRMATIVELY
LINK” APPELLANT TO THE NARCOTICS SEIZED IN HIS APARTMENT
                      AND GARAGE

                                Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

the critical inquiry is whether, considering the evidence in the light most favorable

to the verdict, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Webb v. State, 801 S.W.2d 529, 530 (Tex. Crim. App. 1990). The appellate

court views the evidence in the light most favorable to the verdict, whether the case

was proven by direct or circumstantial evidence. Houston v. State, 663 S.W.2d 455

(Tex. Crim. App. 1984). Following the Court of Criminal Appeals’ decision in

Brooks v. State, legal sufficiency is the only standard for reviewing the sufficiency

of a trial court judgment, and factual sufficiency has been entirely subsumed within

it. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).

                            Argument and Authorities

      Appellant argues in this point of error that the evidence affirmatively linking

him to the contraband and the apartment was legally insufficient. App. Br. at p. 40.

However, Appellant’s argument must fail because it leaves out significant facts and

is not in keeping with the case law addressing this issue.

                                          35
      To prove a defendant unlawfully possessed a controlled substance, the State

must show that (1) the defendant exercised care, custody, control, or management

over the substance; and (2) the defendant knew the matter possessed was

contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

The evidence, whether direct or circumstantial, “must establish, to the requisite

level of confidence, that the accused’s connection with the drug was more than just

fortuitous.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). That

another person than the “accused might have joint possession of the premises does

not require the State to prove that the defendant had sole possession of the

contraband, only that there are affirmative links between the defendant and the

drugs such that he, too, knew of the drugs and constructively possessed them.”

Poindexter, 153 S.W.3d at 412.

      Texas courts have identified a non-exhaustive list of possible affirmative

links, including (1) the defendant’s presence when a search is conducted; (2)

whether the contraband is in plain view; (3) the defendant’s proximity to and the

accessibility of the narcotic; (4) whether other contraband or drug paraphernalia

was present; (5) whether the defendant owned or had the right to possess the place

where the drugs were found; (6) whether the defendant was found with a large

amount of cash; (7) and whether the conduct of the defendant indicated a

consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 fn. 12 (Tex. Crim.

                                        36
App. 2006). It is the logical force of all of the evidence, direct and circumstantial,

rather than the number of links present, which is dispositive. Id. at 162. The

absence of certain links does not constitute evidence of innocence to be weighed

against the links present. Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d).

      Appellant has listed several of the affirmative links present in this case.

App. Br. at p. 40. With regard to the drugs found in the apartment, Appellant noted

that the police found mail addressed to Appellant in the apartment along with male

clothing. (9RR17, 23). However, Appellant leaves out that officers saw Appellant

coming and going from the apartment on numerous occasions. (9RR91-94, 96).

There were numerous tips that Appellant was engaged in drug dealing. (9RR91-

94). Further, Appellant’s girlfriend Laura Cline testified that the drugs in the

apartment were Appellant’s. (10RR97, 104).

      There can hardly be more legally sufficient evidence that a defendant

committed the offense of possessing (and indeed selling) narcotics than the

testimony of someone who saw the defendant commit this offense.                While

Appellant might argue Cline was not to be believed, credibility determinations are

in the hands of the jury, and the jury evidently believed Cline’s testimony.

Therefore, the evidence is legally sufficient to link Appellant to the drugs in the

apartment and his point of error should be overruled in this regard.

                                          37
      As to the drugs found in the garage, Appellant again leaves out several

pertinent facts. He does concede that there was male clothing found in the garage.

App. Br. at p. 40. However, he leaves out that Appellant was seen coming and

going from the garage by the police on numerous occasions. (9RR96). Appellant

was seen by the police to have the remote control to the garage door. (9RR95).

Appellant was seen going into the garage in a blue Honda by the police. (8RR44).

Further, Cline testified that Appellant was the only one who had access to the

garage. (10RR102).

      Again, the facts were sufficient to establish that Appellant was affirmatively

linked to the contraband. Appellant’s third point of error should be overruled.

Response to Appellant’s Fourth Point of Error

       APPLICANT HAS NOT PROVEN THAT HIS COUNSEL WAS
                        INEFFECTIVE

                               Standard of Review

      “Review of counsel’s representation is highly deferential, and the reviewing

court indulges a strong presumption that counsel’s conduct fell within a wide range

of reasonable representation.” Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.

App. 2005). “A reviewing court will rarely be in a position on direct appeal to

fairly evaluate the merits of an ineffective assistance claim.” Id. “In the majority

of cases, the record on direct appeal is undeveloped and cannot adequately reflect

the motives behind trial counsel’s actions.” Id. (internal quotations omitted). “To
                                         38
overcome the presumption of reasonable professional assistance, any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.”     Id. (internal quotations

omitted).

                            Argument and Authorities

      To establish that his trial counsel was ineffective, Appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms, and that there is a reasonable probability

that but for counsel’s ineffectiveness, the result of the trial would have been

different. Strickland v. Washington, 466 U.S. 668 (1984).

      Where there are only broad claims of ineffectiveness without support in the

record, the appellant has not proven his claim of ineffectiveness by a

preponderance of the evidence. Chambers v. State, 903 S.W.2d 21, 34 (Tex. Crim.

App. 1995) (“We do not know on the bases if the record exactly why counsel chose

not to question [the venireman]. Therefore, we cannot say that appellant has

overcome the presumption that counsel’s failure to do so did not fall within the

wide range of reasonable professional assistance”); Jackson v. State, 877 S.W.2d

768, 771 (Tex. Crim. App. 1994) (holding that where the record contains no

evidence to overcome the presumption of effective assistance, the reviewing court

will not reverse); Levy v. State, No. 01-13-00379-CR, 2014 WL 3408697 (Tex.

                                         39
App.—Houston [1st Dist.] Jul. 10, 2014, pet. ref’d) (not designated for

publication); see Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002); see

also Shore v. State, No. AP-75,049, 2007 WL 4375939 at *15-16 (Tex. Crim. App.

Dec. 12, 2007) (not designated for publication).

      Appellant has produced no evidence of ineffective assistance

      There is nothing in the record that clearly establishes ineffectiveness in

Appellant’s trial counsel’s representation. There was no motion for new trial, nor

any hearing on such a motion, and therefore there is nothing in the record

regarding Appellant’s trial counsel’s decision-making process. Because Appellant

has not pointed to any evidence in the record which would overcome the

presumption of effective assistance, his point of error should be overruled.

      Ineffectiveness for not seeking disclosure of identity of confidential
informant

      Appellant argues in his first sub-point that his trial counsel was ineffective

for not seeking disclosure of the identity of the confidential informant referenced

in the search warrant affidavit. App. Br. at p. 42. Appellant concedes that the State

had a privilege not to disclose this informer’s identity under Texas Rule of

Evidence 508(a). App. Br. at p. 43. However, Appellant asserts that his trial

counsel should have sought disclosure because the informer’s identity was

necessary to a fair determination of guilt or innocence under Texas Rule of

Evidence 508(c). App. Br. at p. 43.
                                         40
      Appellant’s argument is inapposite because the informer provided only one

piece of information, that Appellant was dealing drugs. (12RR at Ex. 15, 16). This

was the reason the investigation started, but nothing else.         The confidential

informant was not used beyond that. Therefore, his or her only importance was in

one sentence of the search warrant affidavit, the underlying facts of which did not

constitute the basis for Appellant’s charges in this case. Therefore, the confidential

informant witnessed nothing that was necessary for a determination of guilt or

innocence in this case – only something that helped form the basis of the search

warrant affidavit.

      Appellant argues that the confidential informant’s identity could have helped

impeach Laura Cline, Appellant’s live-in girlfriend, or could have established that

identity was mistaken. However, Appellant was seen at that apartment by officers

working on the case, and the officers knew Appellant by sight. ((9RR91-96).

Therefore, the idea that a confidential informant would have shown that the

officers did not know who they were looking at when they had seen Appellant

before, had been in his apartment, and had conducted a traffic stop on him before,

is without merit. Appellant has established neither ineffectiveness nor prejudice.

      Appellant’s first sub-point should be overruled.




                                          41
      Motion for Spoliation

      Appellant next argues that his trial counsel was ineffective, and that he was

prejudiced by “his trial counsel’s failure to timely file and obtain a ruling on the

motion to exclude the contraband in this case based upon spoliation because it

would have supported his assertion that the contraband was obtained in illegal

warrantless searches not pursuant to legal search warrants.” App. Br. at p. 48.

      The contraband that was the subject of these indictments was seized

pursuant to search warrants. (12 RR at Ex. 15, 16). Appellant’s point of error is

without any basis in fact, and so his argument that Appellant “lost his opportunity

to question whether the search of the premises in this case was pursuant to a

lawfully issued warrant” is meritless. App. Br. at p. 49. Appellant had a hearing

on the legality of the search warrants and obtained a ruling on that motion.

(4RR57-61).

      Appellant has shown neither ineffectiveness nor prejudice.

      Failure to have Appellant testify at suppression hearing

      Appellant next asserts that his trial counsel was ineffective for not calling

him to testify at the suppression hearing because he could have testified in such a

way that “supported the totality of the circumstances that the contraband for which

he was found guilty in this case was seized without probable cause.” App. Br. at p.



                                         42
50. Appellant appears to be arguing that because Cline said she did not initially see

the search warrant that no search warrant existed. App. Br. at p. 50.

      The search warrants and supporting affidavits were entered into evidence.

(12 RR at Ex. 15, 16). The trial court held a hearing on the legality of the search

warrants and overruled Appellant’s objections to them. (4RR57-59). Appellant

does not attempt to identify what he specifically would have testified to, and the

record contains no evidence as to what Appellant would have testified to. Any

argument that Appellant’s testimony would have materially altered the proceedings

is mere conjecture. Appellant also makes no attempt to identify how he was

prejudiced by his counsel’s decision not to call him as a witness.

      Appellant’s bald claims of ineffective assistance and prejudice, without any

supporting evidence should be overruled.

      Failure to request a 38.23 instruction

      Appellant again points to nothing in the record that would establish his trial

counsel’s reasoning for any strategic decision he made, and as such there is not a

sufficient record on which to make finding of ineffectiveness, much less prejudice.

      Further, Appellant argues that a 38.23 instruction should have been

requested because it “would have allowed the jury to determine whether the

searches of the apartment and garage were reasonable under the circumstances.”

App. Br. at p. 50. Appellant states that there was a disputed issue of material fact

                                         43
in that “the lawfulness of the searches were plainly put in issue by the conflicting

testimony regarding the search warrants.” App. Br. at p. 50. Appellant appears to

argue that the evidence raised an issue as to whether the premises were searched

pursuant to the search warrants in this case.

         The warrants were the subject of a contested pretrial hearing and were found

to be based on sufficient probable cause. Such a determination is a legal question

for the judge rather than the jury. There was no disputed issue of fact that the

apartment and garage were searched pursuant to the warrants.           No one ever

testified otherwise. Therefore, there was no disputed issue of material fact in any

event.

         Failure to move for a new trial

         Appellant then argues that a new trial should have been requested because

“the contraband for which he was found guilty was the fruit of warrantless

searches.” App. Br. at p. 54.

         There is no record as to Appellant’s trial counsel’s decision not to file a

motion for new trial. Therefore Appellant has not presented a sufficient record on

appeal to secure a finding of ineffectiveness.

         Further, there were two search warrants in this case, and no one ever

testified that the evidence in this case was procured in any way other than via the

execution of these search warrants.

                                           44
      Appellant’s fourth point of error should be overruled.

Response to Appellant’s Fifth Point of Error

APPELLANT HAS WAIVED HIS BRADY COMPLAINT, AND EVEN IF HE
  HAD NOT, HE HAS NOT SHOWN EITHER THE DESTRUCTION OF
   EVIDENCE, NOR THAT ANY SUCH SUPPOSEDLY DESTROYED
                 EVIDENCE WAS MATERIAL

                               Standard of Review

      To find reversible error under Brady, a defendant must show that: (1) the

State failed to disclose evidence, regardless of the prosecutor’s good or bad faith;

(2) the withheld evidence is favorable to him; and (3) the evidence is material, that

is, there is a reasonable probability that had the evidence been disclosed, the

outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603,

612 (Tex. Crim. App. 2002).

                            Argument and Authorities

      Waiver

      A claim that the State has violated its Brady duties can be procedurally

defaulted, and in order to avoid such default, a complaint must be made to the trial

court in a timely fashion. Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App.

1999). To be timely, a complaint must be made as soon as the grounds for the

complaint are apparent or should be apparent. Id.; Temple v. State, 342 S.W.3d

572, 591 (Tex. App.—Houston [14th Dist.] 2010), aff’d 390 S.W.3d 341 (Tex.

Crim. App. 2013). When previously undisclosed evidence is disclosed at trial, the
                                         45
defense has an opportunity to move for a continuance. Williams v. State, 995

S.W.2d 754, 761 (Tex. App.—San Antonio 1999, no pet.). The failure to request a

continuance waives any purported Brady violation. Id.

       Appellant’s argument appears to be that because of “the destruction of

and/or withholding of all police call logs and communication tapes involved in the

surveillance,” Appellant’s due process rights were violated. App. Br. at p. 55.

However, Appellant does not point out anywhere that such items were ever

requested, much less where the records show that they were wrongfully withheld

or destroyed. Further, Appellant does not point out where any objection was made

to such supposed withholding or destruction, nor does he point out where any

request for a continuance was made. Appellant does no more than make a bald

assertion that these items might have been material, and even in cases where a

much better argument was to be made regarding materiality, Texas courts have held

that such complaints were waived where no objection or motion for continuance

was made. See, e.g., State v. Fury, 186 S.W.3d 67 (Tex. App.—Houston [1st Dist.]

2005, pet. ref’d) (Brady claim waived where complaint not made until motion for

new trial filed).

       Because Appellant did not timely object to the supposed withholding or

destruction of this evidence, he has waived this complaint and his fifth point of

error should be overruled.

                                        46
      Materiality

      Appellant does no more to argue that this supposedly destroyed evidence

was material than to say so. App. Br. at p. 55-56. Appellant appears to argue that

the supposedly destroyed or withheld dispatch logs and the like were exculpatory

and therefore the withholding or destruction of them would be a due process

violation regardless of the good or bad faith of the State. Ap. Br. at p. 55, citing

Illinois v. Fisher, 540 U.S. 544 (2004). However, Appellant does not even attempt

to point to anything in the record which would establish that these items were

actually withheld or destroyed. Further, he also does not point to anything that

would indicate what the contents of these records were, certainly nothing to

indicate what exculpatory material might be contained therein.

      “The mere possibility that an item of undisclosed information might have

helped the defense, or might have affected the outcome of the trial, does not

establish ‘materiality’ in the constitutional sense.” Hampton, 86 S.W.3d at 612

quoting United States v. Agurs, 427 U.S. 97, 112-13 (1976).

      Appellant’s claim should fail firstly because he has not even established that

this information was withheld or destroyed. Secondly, Appellant has not even

attempted to show how this evidence would have been favorable to him.




                                        47
      Because Appellant has not established that any supposedly withheld or

destroyed evidence would have been material, his fifth point of error should be

overruled.

Response to Appellant’s Sixth Point of Error

    APPELLANT POINTS TO NO EVIDENCE THAT THE STATE
WITHHELD ANY AGREEMENT FOR LENIENCY WITH ANY WITNESS
         WHICH THE DEFENSE WAS NOT AWARE OF

                               Standard of Review

      To find reversible error under Brady, a defendant must show that: (1) the

State failed to disclose evidence, regardless of the prosecutor’s good or bad faith;

(2) the withheld evidence is favorable to him; and (3) the evidence is material, that

is, there is a reasonable probability that had the evidence been disclosed, the

outcome of the trial would have been different. Hampton, 86 S.W.3d at 612.

                            Argument and Authorities

      Appellant argues that “[t]o the extent that Laura Cline received any benefits

for her testimony from the State, such as a dismissal or reduction in her charges,

the State clearly intentionally created a false impression before the jury.” App. Br.

at p. 59. Appellant’s argument appears to be that if Cline received some benefit

which was not disclosed, the State would have violated its duties under Brady to

make the defense aware of such an offer of leniency in exchange for Cline’s

testimony.

                                         48
      The State concedes that it would have a duty to disclose any offer of

leniency it made to Laura Cline. However, Appellant does not point to anything in

the record indicating that there was in fact some offer of leniency in exchange for

Cline’s testimony in exchange for her testimony beyond what was brought out on

direct examination.   Appellant also does not indicate anywhere in the record

evidence or an objection by defense counsel that there was any such offer of

leniency to Cline in exchange for her testimony that the defense team was unaware

of.

      Cline was questioned regarding her possible bias in favor of the State by the

State’s attorney including her entry of a plea to the misdemeanor marijuana case

she was charged with. That exchange included the following colloquy:

      Q.     Okay. When this first occurred, you were initially charged from the

sheriff’s office with possession of controlled substance for all the items located

inside the house and garage; correct?

      A.     Yes.

      Q.     Okay. At some point in time you made an agreement to come here

and testify today?

      A.     Yes.

      Q.     Part of that arrangement was that you would take responsibility for

your marijuana; correct?

                                        49
      A.      Yes.

      Q.      And that you would come here and testify truthfully –

      A.      Yes.

       (10RR110-11).

      The State’s attorney later further inquired into Cline’s possible bias in favor

of the State and any potential agreements with the State in exchange for her

testimony:

      Q.      Okay.   Now, at the pendency of this investigation you had some

concern about your immigration status. Is that correct?

      A.      Yes.

      Q.      Was that a motivation, I guess, to also cooperate with the State?

      A.      Yes, because I didn’t want to leave my child and be deported. I didn’t

want to lose my child and be deported.

      Q.      What have you learned about your actual citizenship status since this

case begun?

      A.      I was actually an American citizen when I got there and I was

released.

      …

      Q.      So I want to be clear, your possible deportation status, your

citizenship status is not dependent on anything you say here today?

                                          50
      A.    No. I go for my oath ceremony tomorrow. I would have had it last

month, but my mom passed away.

      (10RR116-17).

      Appellant’s counsel also questioned Cline at length about her potential bias

in favor of the State based on her immigration status and her criminal charges.

(10RR119, 128-29, 135-36).

      There is nothing in the record establishing that there was some agreement

between Laura Cline and the State which the defense team was not aware of.

Because Appellant has pointed to nothing in the record that would indicate such an

agreement was made and not disclosed to the defense, his sixth point of error

should be overruled.

Response to Appellant’s Seventh Point of Error

   THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT
  DENIED APPELLANT’S MOTION FOR A MISTRIAL BECAUSE THE
     COURT GAVE AN EFFECTIVE CURATIVE INSTRUCTION

                               Standard of Review

      An appellate court reviews a trial court’s decision to deny a mistrial under an

abuse of discretion standard. See Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim.

App. 2004). “Only in extreme circumstances, where the prejudice is incurable,

will a mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004).

                                         51
                            Argument and Authorities

      Appellant argues that the trial court erred when it denied his motion for a

mistrial based on Laura Cline’s testimony that Appellant “had a record from

Louisiana.” App. Br. at p. 60.

      Appellant made a timely objection and motion for a mistrial based on this

testimony. (10RR113-15). The trial court denied the motion for mistrial and gave

the jury an instruction to disregard Cline’s statement about Appellant’s prior

criminal history. (10RR115).

      In most instances, an instruction to disregard inadmissible testimony will

cure the error. Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

Generally, a witness’s reference to a defendant’s criminal history, standing alone, is

cured by a prompt instruction to disregard. Ovalle v. State, 13 S.W.3d 774, 783

(Tex. Crim. App. 2000). To determine whether a trial court abused its discretion in

denying a motion for mistrial, a reviewing court will consider three factors: (1) the

severity of the misconduct; (2) the measures adopted to cure the misconduct; and

(3) the certainty of conviction absent the misconduct. Archie v. State, 221 S.W.3d

695, 699 (Tex. Crim. App. 2007).




                                         52
       In this case, the prejudicial effect was limited because Cline’s comment was

isolated1, and the evidence of Appellant’s guilt was significant. The State did not

emphasize Appellant’s prior record, nor otherwise attempt to reference Cline’s

comment again. Further, the trial court gave a prompt instruction to the jury to

disregard the comment. These facts militate in favor of holding that the trial court

did not err in denying Appellant’s motion for a mistrial. Such a holding is in

keeping with a significant body of Texas case law. See, e.g., Ladd v. State, 3

S.W.3d 547, 571 (Tex. Crim. App. 1999) (instruction to disregard cured witness’s

statement about defendant’s prior juvenile arrests); Whitaker v. State, 977 S.W.2d

595, 600 (Tex. Crim. App. 1998) (instruction to disregard witness statement about

extraneous offense sufficient to cure error).

       Appellant’s seventh point of error should be overruled.




1
  Though it should be noted Cline earlier made a statement that Appellant had been “charged
with the same things” and though trial counsel objected, he did not move for a mistrial or request
a curative instruction. (10RR97-98).
                                                53
                                     PRAYER

      Wherefore, premises considered, Appellee prays that Appellant’s points of

error be overruled and his conviction and sentence be affirmed in all things.

                                           Respectfully submitted,


                                              John F. Healey, Jr.




                                              /s/ Jason Bennyhoff
                                                  Jason Bennyhoff
                                              Assistant District Attorney
                                              Fort Bend County, Texas
                                              S.B.O.T. No. 24050277
                                              301 Jackson Street Room 101
                                              Richmond, Texas 77469
                                              281-341-4460 (office)
                                              281-341-8638 (fax)




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                         CERTIFICATE OF SERVICE

   This is to certify that a true and correct copy of the foregoing Appellee’s brief
has been served by way of the electronic service function on the E File Texas
website, on the date of the filing of the original in this case.

                                             /s/ Jason Bennyhoff

                                             Jason Bennyhoff



Certificate of Compliance with Texas Rule of Appellate Procedure 9.4(i)(3)
In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), I, Jason
Bennyhoff, hereby certify that the foregoing electronically created document has
been reviewed by the word count function of the creating computer program, and
has been found to be in compliance with the requisite word count requirement in
that its word count with regard to those portions of the brief subject to the word
count requirement is 12,358 words.


                                             /s/ Jason Bennyhoff

                                             Jason Bennyhoff




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