                                                                               PD-0444-15
                        PD-0444-15                            COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                            Transmitted 5/26/2015 10:06:06 AM
                                                              Accepted 5/26/2015 11:04:53 AM
                                                                               ABEL ACOSTA
                              IN THE                                                   CLERK
                    COURT OF CRIMINAL APPEALS

DEZMONE PINKSTON,              §
    APPELLANT                  §
                               §
V.                             §        NO. PD-0444-15
                               §
THE STATE OF TEXAS,            §
     APPELLEE                  §

     STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS
DISTRICT OF TEXAS IN CAUSE NUMBER 02-14-00041-CR, REVERSING THE
JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1329761D IN
CRIMINAL DISTRICT COURT NO. THREE OF TARRANT COUNTY, TEXAS;
THE HONORABLE ROBB CATALANO, PRESIDING.

                    STATE’S PETITION FOR REVIEW

                               SHAREN WILSON
                               Criminal District Attorney
                               Tarrant County, Texas

                               DEBRA WINDSOR, Assistant
                               Criminal District Attorney,
                               Chief, Post-Conviction

     May 26, 2015              JAMES GIBSON, Assistant
                               Criminal District Attorney
                               State Bar No. 00787533
                               Tim Curry Criminal Justice Center
                               401 W. Belknap
                               Fort Worth, Texas 76196-0201
                               (817) 884-1687
                               FAX (817) 884-1672
                               CCAAppellateAlerts@TarrantCounty.com
                 IDENTITY OF THE PARTIES AND COUNSEL

The trial judge was Hon. Robb Catalano, presiding judge of Criminal District

Court No. Three of Tarrant County, Texas.



The State of Texas, represented by Sharen Wilson, Tarrant County Criminal

District Attorney, is a party to this litigation. At trial, the State was represented by

James Luster, (former) Assistant Criminal District Attorney. On appeal, the State is

represented by James Gibson, Assistant Criminal District Attorney, and Debra

Windsor, Assistant Criminal District Attorney. The address of these attorneys is

Office of the Criminal District Attorney of Tarrant County, 401 W. Belknap, Fort

Worth, Texas 76196-0201.



Appellant, Defendant below, is Dezmone Pinkston. Appellant was represented at

trial and on appeal by Hon. Maggie McBride, 2000 Carson St., Fort Worth, Texas

76117.




                                           i
                                          TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL ...................................................i

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

STATEMENT OF THE CASE .................................................................................. 1

PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION ................... 2

QUESTIONS FOR REVIEW ....................................................................................2

STATEMENT OF FACTS ........................................................................................3

DISCUSSION ............................................................................................................5

CONCLUSION ........................................................................................................14

PRAYER ..................................................................................................................14

CERTIFICATE OF COMPLIANCE .......................................................................15

CERTIFICATE OF SERVICE ................................................................................15

COURT OF APPEALS’ OPINION ......................................................... APPENDIX




                                                            ii
                                     TABLE OF AUTHORITIES

                                                                                                           Page(s)

Cases
Crain v. State,
  315 S.W.3d 43 (Tex. Crim. App. 2010) .........................................................8, 11

Derichsweiler v. State,
  348 S.W.3d 906 (Tex. Crim. App. 2011) .............................................5, 6, 10, 11

Gurrola v. State,
  877 S.W.2d 300 (Tex. Crim. App. 1994) ....................................................passim

Pinkston v. State,
   No. 02-14-00041-CR, 2015 WL 1262919
   (Tex. App.—Fort Worth March 19, 2015, pet. filed)
   (mem. op., not for publication)(attached as appendix) ................................passim
Schwartz v. State,
   635 S.W.2d 545 (Tex. Crim. App. [Panel Op.] 1982) ......................................7, 8
State v. Madrigal,
   827 P.2d 1105 (Wash. Ct. App. 1992)..............................................................13n

State v. Olson,
   729 N.W.2d 132 (N.D. 2007) ...........................................................................13n
Tanner v. State,
  228 S.W.3d 852 (Tex. App.—Austin 2007, no pet.) ..........................................11
Terry v. Ohio,
   392 U.S. 1 (1968) ..............................................................................................5, 8

Torres v. State,
   No. 05-98-00615-CR, 1999 WL 415380
  (Tex. App.—Dallas June 23, 1999, no pet.) (unpublished) .................................. 9

United States v. Arvizu,
  534 U.S. 266 (2002) ..............................................................................................6

                                                          iii
United States v. Brignoni-Ponce,
  422 U.S. 873 (1975) ..............................................................................................5

United States v. Cortez,
  449 U.S. 411 (1981) ..............................................................................................5

United States v. McHugh,
  639 F.3d 1250 (10th Cir. 2011) ..........................................................................12

United States v. Sokolow,
  490 U.S. 1 (1989) ..............................................................................................5, 8

Woods v. State,
  956 S.W.2d 33 (Tex. Crim. App. 1997) .........................................................8, 8n




                                                         iv
                                  IN THE
                        COURT OF CRIMINAL APPEALS

DEZMONE PINKSTON,                     §
    APPELLANT                         §
                                      §
V.                                    §         NO. PD-0444-15
                                      §
THE STATE OF TEXAS,                   §
     APPELLEE                         §

     STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS
DISTRICT OF TEXAS IN CAUSE NUMBER 02-14-00041-CR, REVERSING THE
JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1329761D IN
CRIMINAL DISTRICT COURT NO. THREE OF TARRANT COUNTY, TEXAS;
THE HONORABLE ROBB CATALANO, PRESIDING.

                STATEMENT REGARDING ORAL ARGUMENT

      Because the bulk of this petition questions the continued viability of an

earlier opinion from this Court, oral argument would be helpful in presenting the

State’s views and answering the Court’s concerns about whether that opinion has

been definitively overruled.


                           STATEMENT OF THE CASE

      Appellant was indicted for possession of less than a gram of cocaine. CR 5.

He pled guilty to the offense, reserving for appeal the issue of whether the officer

who detained him had adequate reasonable suspicion to do so. CR 25, 29. He was

sentenced to sixty days in jail.
                                          1
       PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION

      Appellant complained on appeal that the officer who detained him and found

cocaine did so without sufficient reasonable suspicion. App. brief at 8-9.

      A panel of the Fort Worth Court of Appeals agreed with Appellant. Pinkston

v. State, No. 02-14-00041-CR, 2015 WL 1262919 (Tex. App.—Fort Worth March

19, 2015, pet. filed) (mem. op., not for publication) (attached as appendix). The

panel held that, essentially, the facts of Appellant’s case were indistinguishable

from an earlier case from this Court which found no reasonable suspicion to detain

that defendant. Id. at *3.


                             QUESTION FOR REVIEW

Did the court of appeals rely on overruled and outdated caselaw when it found that

the police officer in Appellant’s case detained him without adequate reasonable

suspicion? RR 9-12.




                                          2
                             STATEMENT OF FACTS

      Police attempted to detain Appellant, who did not cooperate. He was

arrested for evading that detention. RR 11. As a result of a search incident to arrest,

police found cocaine on him. RR 12. Appellant pled guilty to the charge of

possessing a controlled substance, reserving for appeal the trial court’s decision

that Appellant’s initial detention was legal. CR 25, 29.

      Officer Barrett Galbraith was working the midnight shift on the east side of

Fort Worth on January 7, 2013. RR 5-6. Specifically, he and a couple of other

officers did a foot patrol at the Regency Oaks apartment complex. RR 6.

According to Officer Galbraith, those apartments have a high level of violent and

narcotic crimes. Id. In his experience, Officer Galbraith has worked shootings and

instances of family violence, including at those apartments. RR 7.

      On that night, as the officers walked around the apartment complex, many

residents who were standing outside went into their homes when they saw the

policemen. RR 8. As he was preparing to leave and answer other calls, Officer

Galbraith heard an argument in another courtyard, on the other side of a building.

RR 9. He described it in his report as “yelling and screaming.” Id. The voices were

obviously that of a male and female. Id. Officer Galbraith decided to investigate.



                                           3
Id. He thought that the sounds he heard were consistent with what could have been

a domestic assault. RR 10.

      As Officer Galbraith rounded the corner, he saw the couple arguing. Id. As

soon as they saw him, they stopped arguing and began to walk away from him. Id.

From Officer Galbraith’s point of view, it seemed that something had happened

and they were trying to get away so they would not have to talk with him. Id. The

officer walked after them and told them to come back and talk to him. RR 11. The

woman stopped, but the man did not. Id. Officer Galbraith and the other officers

chased after the man and caught him. Id. They arrested him for evading detention.

Id. In a search incident to arrest, the officers discovered what appeared to be

cocaine. RR 12. The arrested man was Appellant. Id.




                                        4
                                   DISCUSSION

      The Fort Worth Court’s reliance on Gurrola v. State was a mistake –
      Gurrola is no longer good law.

      Appellant claimed that Officer Galbraith did not have sufficient reasonable

suspicion to detain him. App. brief at 8-9. The Fort Worth Court agreed and

reversed the trial court’s judgment. Pinkston, 2015 WL 1262919 at *4.

      When a law enforcement officer has reasonable suspicion to believe that a

person is engaged in criminal activity, he may temporarily detain that person to

investigate the possible criminal activity. United States v. Brignoni-Ponce, 422

U.S. 873, 881-82 (1975). Suspicion to detain is reasonable where the officer has

specific, articulable facts that, combined with rational inferences from those facts,

would lead him reasonably to conclude that the person detained is, has been, or

soon will be engaged in criminal activity. United States v. Sokolow, 490 U.S. 1, 7

(1989); Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This

standard is an objective one – it disregards the officer’s subjective intentions and

looks to whether there was an objectively justifiable basis for the detention. Terry

v. Ohio, 392 U.S. 1, 22 (1968).

      The standard articulated above looks to the totality of the circumstances.

United States v. Cortez, 449 U.S. 411, 417-18 (1981). Individual circumstances

may indeed seem innocent in isolation; however the combination of those
                                          5
circumstances may amount to such a suggestion of criminal conduct that a

temporary detention and investigation is justified. Derichsweiler, 348 S.W.3d at

914. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (“The court’s

evaluation and rejection of seven of the listed factors in isolation from each other

does not take into account the ‘totality of the circumstances,’ as our cases have

understood that phrase.”).

      The Fort Worth Court mainly relied on this Court’s opinion in Gurrola v.

State, 877 S.W.2d 300 (Tex. Crim. App. 1994). Pinkston, 2015 WL 1262919 at *3.

In Gurrola, an unknown man reported to a sheriff’s deputy that some type of

disturbance was occurring at an apartment complex. Gurrola, 877 S.W.2d at 301.

It was late afternoon. Id. The officer described the apartment complex as an

“unsafe” location. Id. Upon arriving, the officer saw three men and a woman

arguing. Id. He approached to find out what was going on, but on seeing him they

all began to leave. Id. He ordered them to come back. Id. A pat-down search

revealed a handgun and drugs on Gurrola. Id.

      This Court held that Gurrola’s detention was without adequate reasonable

suspicion. First, the opinion downplayed the seriousness of the argument which led

to the investigation. It was “no more than a heated discussion,” characterized by

the deputy in his report as a “disturbance.” Gurrola, 877 S.W.2d at 302. It certainly

                                          6
was not an “altercation.” Id. This Court also placed importance on the fact that four

people arguing in a parking lot in the late afternoon was not out of the ordinary. Id.

In fact, according to this Court, “a residential parking lot in the late afternoon does

not give rise to the same suspicions as does an empty department store parking lot

at 1:30 a.m.” Id. at 303. Second, this Court emphasized that mere flight from a law

enforcement officer is insufficient to justify an investigative detention – an

individual has a right to refuse questions by officers who have no reasonable

suspicion. Id.

      Most important, however, is a consistent thread running through the opinion:

that Gurrola was not suspected of having committed any particular crime and that

what he was doing was consistent with “entirely innocent activity.” Id. at 304, 305.

Certainly, the opinion took pains to label Gurrola’s argument with his companions

as merely innocent. See id. at 304 (“Standing in a residential parking lot in the late

afternoon having an aggressive conversation is an entirely innocent activity.”). In

addition, this Court relied on its opinion in Schwartz v. State, 635 S.W.2d 545

(Tex. Crim. App. [Panel Op.] 1982). In that case, a policeman detained juveniles

in a truck by a gas station after closing, thinking they might have alcoholic

beverages. Id. at 546. As the officer admitted that it would not be “unusual” for

someone at that time of night to be using the car washing stalls, the Court held that

                                           7
the actions of the truck’s driver was “as consistent with innocent activity as with

criminal activity,” and the seized contraband would have to be suppressed. Id. at

646, 647.

       This “as consistent with innocent activity as with criminal activity” test was

formally repudiated by this Court in Woods v. State, 956 S.W.2d 33, 38 (Tex.

Crim. App. 1997). That opinion emphasized the development in the rules regarding

temporary detentions since Terry, supra, and that the Supreme Court had

recognized that a detention need not be based on a suspect’s unlawful conduct, or

conduct that was inconsistent with innocence. Id. (citing United States v. Sokolow,

490 U.S. 1, 10 (1989)).1

       The State pointed out to the Fort Worth Court that relying on Gurrola would

necessitate relying on the repudiated construct that formed at least part of the basis

of that opinion. State’s brief at 10. The Fort Worth Court would have none of that:

“[I]t is not this court’s prerogative to refuse to follow the court of criminal

appeals’s decisions.” Pinkston, 2015 WL 1262919 at *3. In addition, the Fort

Worth Court based its conception of the continued viability of Gurrola on the fact

that it had been “recently cited” by this Court. Id. (citing Crain v. State, 315

S.W.3d 43, 49 n.16 (Tex. Crim. App. 2010)).
1
 It should be pointed out that this Court in Woods specifically overruled Schwartz as to the “as
consistent with innocent activity as with criminal activity” language that was relied on in
Gurrola. Woods, 956 S.W.2d at 36 n.3.
                                                8
      Of course, the State did not ask the Fort Worth Court to overrule this Court.

It merely pointed out to the panel a basic fact: that the foundation of Gurrola was

the “as consistent with” construct, and that this construct had been subsequently

overruled. Another court of appeals came to that same conclusion about Gurrola –

and didn’t seem to think it was “overruling” this Court. In Torres v. State, No. 05-

98-00615-CR, 1999 WL 415380 (Tex. App.—Dallas June 23, 1999, no pet.)

(unpublished), a police officer was contacted by an employee of a business who

reported an instance of domestic violence. Id. at *2. The officer found the two

people involved, searched the defendant, and found a weapon. Id. The Dallas Court

of Appeals held that the search of the defendant was justified on the basis of

reasonable suspicion that the defendant had or was about to commit a crime. Id.

The court distinguished Gurrola on its facts, noting that someone had reported

what was an actual possible crime (as opposed to the officer witnessing a mere

argument). Id. at 3. However, the Dallas court also noted that Gurrola employed

the outdated “as consistent with innocent activity as with criminal activity”

construct that this Court had rejected. Id.

      The Dallas court understood something that the Fort Worth court refused to

consider – the law sometimes changes and the holdings from older cases (even

ones from this Court) must be considered with these changes in mind.

                                              9
Derichsweiler, supra, is a good example of that. It is hard to imagine that Gurrola

(or, for that matter, the opinion in Appellant’s case) could have survived an

analysis tied to this Court’s opinion in Derichsweiler. Specifically, in that case, this

Court held that it is not necessary that a temporary detention be based on a

“particular and distinctively identifiable penal offense.” Derichsweiler, 348

S.W.3d at 916. Further:

      Particularly with respect to information suggesting that a crime is
      about to occur, the requirement that there be “some indication that the
      unusual activity is related to crime” does not necessarily mean that the
      information must lead inexorably to the conclusion that a particular
      and identifiable penal code offense is imminent. It is enough to satisfy
      the lesser standard of reasonable suspicion that the information is
      sufficiently detailed and reliable—i.e., it supports more than an
      inarticulate hunch or intuition—to suggest that something of an
      apparently criminal nature is brewing.

Id. at 917 (citations omitted, italics in original). Gurrola, on the other hand,

explicitly underlines the importance of the lack of a particular penal offense. See

Gurrola, 877 S.W.2d at 305 (“Appellant was not suspected of any particular

crime.”). Although the Fort Worth Court does not come right out and say it, one

gets the feeling that the panel would have been more receptive to a report of an

actual crime taking place. See Pinkston, 2015 WL 1262919 at *3 (“But unlike in

Gurrola, the officers in this case had not received an uncorroborated complaint of

a disturbance.”). But Derichsweiler confirmed that such a view is not required: the

                                           10
requirement that unusual activity be related to crime does not necessarily mean that

the information point to a definite offense. Derichsweiler, 348 S.W.3d at 917.2

         As an aside, the State finds fault with the Fort Worth Court’s assumption

that Gurrola must be good law because this Court cited it in 2010. See Pinkston,

2015 WL 1262919 at *3 (“Moreover, the court of criminal appeals has recently

cited Gurrola in its analysis of what constitutes reasonable suspicion to detain an

individual.”). The opinion in Crain certainly cites Gurrola. But Crain’s reliance on

Gurrola was limited to the fact that a reviewing court should employ a “totality of

the circumstances” analysis when trying to decide which category of police-citizen

interaction a given situation falls in. Crain, 315 S.W.3d at 49. That’s it. The Fort

Worth Court was wrong to read into this citation an intent on the part of this Court

to resurrect the “as consistent with innocent activity as with criminal activity”

construct.

         Finally, it bears mention that the State should have prevailed in this case,

even under the straitjacketed and outdated analysis in Gurrola that was followed

by the Fort Worth Court. In the first place, Appellant’s detention took place at

night, not in the afternoon sun. See Tanner v. State, 228 S.W.3d 852, 858 (Tex.

App.—Austin 2007, no pet.) (fact that detention was middle of the night and in

suspicious place are factors to be considered together in reasonable suspicion
2
    The Fort Worth Court did not mention Derichsweiler.
                                               11
analysis); see also United States v. McHugh, 639 F.3d 1250, 1257 (10th Cir. 2011)

(lateness of hour, though not dispositive by itself, is factor to be used in assessing

reasonableness of detention). The fact that, in Appellant’s case, the officers heard

what appeared to be yelling and screaming late at night, in an area known for drug

use and domestic violence, should likewise be a factor in a reasonable suspicion

analysis.

      Second, what Officer Galbraith heard far outshone what this Court was

faced with in Gurrola. In Gurolla, the detained persons were, according to this

Court, “engaged in no more than a heated discussion.” Gurolla, 877 S.W.2d at 302.

The officer described it as a “disturbance,” and the Court disagreed with the court

of appeals’ conclusion that it was an “altercation.” Id. This Court, in fact, made

clear that what the officer in Gurolla saw was “an entirely innocent activity,” and

that the defendant could not have been suspected of any crime. Id. at 304, 305. In

any event, three men and a woman having a “heated discussion” is much different

from what Appellant was doing. Officer Galbraith was aware that the Regency

Oaks apartment had a reputation for hosting domestic violence situations. RR 7.

And what he heard was not a mere disturbance – despite the presence of a building

between himself and the fighting couple, he could clearly hear a man and woman

“yelling and screaming.” RR 9. Officer Galbraith believed that it was possible an

                                          12
assault was taking place. Id. Thus, unlike the situation in Gurolla, Officer

Galbraith reasonably suspected that an actual crime was happening and he was

justified in investigating.3

       But these distinctions merely highlight the bigger problem: that under an “as

consistent with innocent activity as with criminal activity” construct, a police

officer is not allowed to investigate what he believes is a possible domestic

violence situation, a situation based on perceived facts (screaming, etc.) which he

can articulate, in an apartment complex that the officer knows from past experience

has been the scene of domestic violence. Fortunately, that test is no longer the law,

and the Fort Worth Court was wrong to rely on a superficially similar case that

employed that construct.




3
 See also State v. Olson, 729 N.W.2d 132, 135-36 (N.D. 2007) (officer reasonably detained
defendant, who was running behind screaming woman; he could reasonably suspect a domestic
assault situation); State v. Madrigal, 827 P.2d 1105, 1106-07 (Wash. Ct. App. 1992) (officer’s
detention of defendant was justified by the “loud altercation” he heard between defendant and his
wife).
                                               13
                                 CONCLUSION

      The Fort Worth Court erroneously relied on implicitly overruled caselaw

from this Court in finding that there was inadequate reasonable suspicion to detain

Appellant. Under current law, Officer Galbraith was justified in detaining

Appellant to investigate what reasonably sounded like a near-violent domestic

dispute.

                                     PRAYER

      The State prays that its petition be granted and that the Court of Appeals’

judgment reversing the judgment of the trial court be reversed.

                                      Respectfully submitted,

                                      SHAREN WILSON
                                      Criminal District Attorney
                                      Tarrant County, Texas

                                      DEBRA WINDSOR, Assistant
                                      Criminal District Attorney,
                                      Chief, Post-Conviction

                                      /s/ James Gibson_____________
                                      JAMES GIBSON, Assistant
                                      Criminal District Attorney
                                      State Bar No. 00787533
                                      Tim Curry Criminal Justice Center
                                      401 W. Belknap
                                      Fort Worth, Texas 76196-0201
                                      (817) 884-1687
                                      FAX (817) 884-1672
                                      CCAappellatealterts@tarrantcounty.com
                                         14
                         CERTIFICATE OF COMPLIANCE

        The word count for the portions of the document covered by TEX. R. APP. P.

9.4(i)(1) is 2,589.

                                                 /s/ James Gibson_____________
                                                 JAMES GIBSON


                            CERTIFICATE OF SERVICE

        Copies of the State’s petition have been e-served to opposing counsel, the

Hon. Maggie McBride, maggiemcbride@charter.net, 2000 Carson St., Fort Worth,

Texas      76117,     and     to    Hon.      Lisa     McMinn,       State's   Attorney,

information@spa.texas.gov, P.O. Box 13046, Capitol Station, Austin, Texas 78711

on May 26, 2015.

                                          /s/ James Gibson_____________
                                          JAMES GIBSON



H:\GIBSON.G17\BRIEFS\Pinkston St Pdr (revised after efile return).docx




                                            15
Pinkston v. State, Not Reported in S.W.3d (2015)


                                                               the trial court's judgment and remand the cause for further
                                                               proceedings consistent with this opinion.
                  2015 WL 1262919
    Only the Westlaw citation is currently available.

          SEE TX R RAP RULE 47.2 FOR                                               II. BACKGROUND
    DESIGNATION AND SIGNING OF OPINIONS.
                                                               After the State charged Pinkston with possession of cocaine,
           MEMORANDUM OPINION                                  he filed a motion to suppress. At the suppression hearing,
      DO NOT PUBLISH TEX.R.APP. P. 47.2(B)                     the State stipulated that the officers in this case did not have
            Court of Appeals of Texas,                         a warrant to arrest or detain Pinkston prior to searching his
                   Fort Worth.                                 person and discovering cocaine.
             Dezmone Pinkston, Appellant
                                                               Fort Worth Police Officer Barrett Galbraith testified that on
                          v.
                                                               June 7, 2013, he and fellow officers conducted a walk-through
               The State of Texas, State
                                                               of the Regency Oaks Apartments, an area that, according
                                                               to Galbraith, is “very problematic” and known as an area
                NO. 02–14–00041–CR |
                                                               where “violent crimes [and] narcotics crimes” occur with
               DELIVERED: March 19, 2015
                                                               frequency. Galbraith also said that the area is known as a place
FROM CRIMINAL DISTRICT COURT NO. 3 OF                          where domestic and violent family crimes occur. Galbraith
TARRANT COUNTY, TRIAL COURT NO. 1329761D.                      did not state at what time he and fellow officers conducted
JERRY W. WOODCOCH, JUDGE                                       their walk-through, but he did testify that his shift that night
                                                               was from 8:00 p.m. until 6:00 a.m. and that his encounter
Attorneys and Law Firms                                        with Pinkston occurred while it was “dark”; and the parties'
                                                               agreed-to proposed findings of fact and conclusions of law
Maggie McBride Fort Worth, Texas, Attorney for Appellant       reflect that Galbraith's encounter with Pinkston occurred “at
                                                               approximately midnight.” There is, however, no evidence
Sharen Wilson, Criminal District Attorney; Debra Windsor,
                                                               that the trial court adopted these proposed findings and
Chief of Post–Conviction; James Gibson, James Luster,
                                                               conclusions.
Assistant Criminal District Attorneys; Tarrant County
Criminal District Attorney's Office Fort Worth, Texas,
                                                               By Galbraith's account, he and fellow officers had been at the
Attorney for State
                                                               apartment complex for more than twenty minutes and most of
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.                the people around had begun to “go inside because they saw
                                                               [the police] walking around” when he heard “arguing ... to
                                                               the north” of his location. Galbraith testified that although he
                                                               could not see who was arguing, the arguing was loud enough
             MEMORANDUM OPINION 1
                                                               that he could hear it despite the location of the argument
1                                                              occurring a building over from where he was. Galbraith said
       See Tex.R.App. P. 47.4.
                                                               that in his report from that night he described the argument as
                                                               “yelling and screaming.” According to Galbraith, the tenor of
BILL MEIER, JUSTICE
                                                               the argument led him to believe that he needed to investigate
                                                               “an assault [or] something of that nature.” He also described
                   I. INTRODUCTION                             the argument as being consistent with “a domestic assault.”
                                                               Galbraith averred that as he approached the area where the
 *1 In two issues, appellant Dezmone Pinkston appeals his      argument was occurring, he witnessed Pinkston and a female
conviction for possession of cocaine in an amount of less      arguing but that once the couple saw him, “they stopped
than one gram. See Tex. Health & Safety Code Ann. §            arguing and began to walk away.”
481.115(b) (West 2010). Because we hold that the trial court
erred by denying Pinkston's motion to suppress, we reverse     Galbraith said that the couple's conduct of ceasing their
                                                               argument and walking away led him to believe that “they



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Pinkston v. State, Not Reported in S.W.3d (2015)


were trying to get away from [him] so that they didn't           deference to the trial court's rulings on (1) questions of
have to talk to [him].” Galbraith stated to the couple that      historical fact, even if the trial court's determination of those
they should come back and talk to him, but as the couple         facts was not based on an evaluation of credibility and
continued their retreat, Galbraith declared, “Stop, police.”     demeanor, and (2) application-of-law-to-fact questions that
At that moment, the female stopped, but Pinkston continued       turn on an evaluation of credibility and demeanor. Amador,
walking away. From there, Galbraith and his fellow officers      221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–
chased down Pinkston and arrested him for “[e]vading arrest      09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d 644,
or detention.” After patting down Pinkston, Galbraith found      652–53 (Tex.Crim.App.2002). But when application-of-law-
“an off white rock-like substance” on Pinkston's person that     to-fact questions do not turn on the credibility and demeanor
Galbraith believed to be crack cocaine.                          of the witnesses, we review the trial court's rulings on those
                                                                 questions de novo. Amador, 221 S.W.3d at 673; Estrada v.
 *2 The trial court denied Pinkston's suppression motion, and    State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson,
he later entered into a plea bargain with the State whereby he   68 S.W.3d at 652–53.
pleaded guilty to possession of less than one gram of cocaine.
The State recommended sixty days' jail time. The trial court     Stated another way, when reviewing the trial court's ruling
entered judgment accordingly, and this appeal followed.          on a motion to suppress, we must view the evidence in
                                                                 the light most favorable to the trial court's ruling. Wiede,
                                                                 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
                                                                 (Tex.Crim.App.2006).
                     III. DISCUSSION

In two issues, citing both state and federal principles of
                                                                 B. No Reasonable Suspicion to Detain Pinkston
search and seizure, Pinkston argues that the trial court
                                                                 The Fourth Amendment, and its corresponding state
abused its discretion by denying his motion to suppress
                                                                 principles codified in the Texas Code of Criminal Procedure,
because Galbraith lacked reasonable suspicion to detain
                                                                 protects against evidence being used at trial when it was
him at the moment Galbraith announced, “Stop, police.”
                                                                 obtained through unreasonable searches and seizures by
In support of his position, Pinkston cites the court of
                                                                 government officials. U.S. Const. amend. IV; Tex.Code
criminal appeals's decision in Gurrola v. State 877 S.W.2d
                                                                 Crim. Proc. Ann. art. 38.23 (West 2005); Wiede, 214 S.W.3d
300, 303 (Tex.Crim.App.1994). The State argues that this
                                                                 at 24. To suppress evidence because of an alleged Fourth
case is distinguishable from Gurrola. Furthermore, the State
                                                                 Amendment violation, the defendant bears the initial burden
argues that Gurrola “seems to be simply outdated” as a
                                                                 of producing evidence that rebuts the presumption of proper
touchstone for determining reasonable suspicion. We agree
                                                                 police conduct. Amador, 221 S.W.3d at 672; see Young v.
with Pinkston.
                                                                 State, 283 S.W.3d 854, 872 (Tex.Crim.App.), cert. denied,
                                                                 558 U.S. 1093 (2009). A defendant satisfies this burden
A. Standard of Review                                            by establishing that a search or seizure occurred without a
We review a trial court's ruling on a motion to suppress         warrant. Amador, 221 S.W.3d at 672. Once the defendant
evidence under a bifurcated standard of review. Amador v.        has made this showing, the burden of proof shifts to the
State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v.        State, which is then required to establish that the search
State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing       or seizure was conducted pursuant to a warrant or was
the trial court's decision, we do not engage in our own          reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899,
factual review. Romero v. State, 800 S.W.2d 539, 543             902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488,
(Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861          492 (Tex.Crim.App.2005).
(Tex.App.—Fort Worth 2003, no pet.). The trial judge
is the sole trier of fact and judge of the credibility of         *3 A detention, as opposed to an arrest, may be justified on
the witnesses and the weight to be given their testimony.        less than probable cause if a person is reasonably suspected of
Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007);        criminal activity based on specific, articulable facts. Terry v.
State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000),           Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968); Carmouche
modified on other grounds by State v. Cullen, 195 S.W.3d         v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000). An
696 (Tex.Crim.App.2006). Therefore, we give almost total         officer conducts a lawful temporary detention when he
                                                                 has reasonable suspicion to believe that an individual is


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Pinkston v. State, Not Reported in S.W.3d (2015)


violating the law. Crain v. State, 315 S.W.3d 43, 52              participants of the argument dispersed upon seeing the police.
(Tex.Crim.App.2010); Ford, 158 S.W.3d at 492. Reasonable          But unlike in Gurrola, the officers in this case had not
suspicion exists when, based on the totality of the               received an uncorroborated complaint of a disturbance. The
circumstances, the officer has specific, articulable facts that   only distinction that this court can detect that differs in this
when combined with rational inferences from those facts,          case from Gurrola is that in Gurrola the argument occurred
would lead him to reasonably conclude that a particular           during the day, and in this case, the argument occurred while
person is, has been, or soon will be engaged in criminal          it was “dark.” But time of night alone is not sufficient to rise
activity. Ford, 158 S.W.3d at 492. This is an objective           to the level of reasonable suspicion. See Crain, 315 S.W.3d
standard that disregards any subjective intent of the detaining   at 53 (“Neither time of day nor level of criminal activity in an
officer and looks solely to whether an objective basis for the    area are suspicious in and of themselves.”).
detention exists. Id.
                                                                  Furthermore, we are unpersuaded by the State's argument
Here, the circumstances that Galbraith testified about that       that Gurrola is no longer good law. First, it is not this
gave him reasonable suspicion to detain Pinkston were that        court's prerogative to refuse to follow the court of criminal
Pinkston's argument with his female companion was of such         appeals's decisions. See Wiley v. State, 112 S.W.3d 173, 175
volume and nature that he believed that “a possible offense”      (Tex.App.—Fort Worth 2003, pet. ref'd) (“It is axiomatic that
in the nature of an “assault” was transpiring. Galbraith also     a Court of Appeals has no power to ‘overrule or circumvent
testified that this argument occurred in an area known for        [the] decisions, or disobey [the] mandates,’ of the Court of
domestic violence and that this all transpired while it was       Criminal Appeals.”). Moreover, the court of criminal appeals
“dark” outside. And, according to Galbraith's testimony,          has recently cited Gurrola in its analysis of what constitutes
because Pinkston and the female stopped arguing and began         reasonable suspicion to detain an individual. Crain, 315
to walk away upon seeing the police, the totality of this         S.W.3d at 49, n.16. Cram is also instructive to this case.
conduct provided him with reasonable suspicion that a crime       In Crain, the Court held that an officer lacked reasonable
had been committed.                                               suspicion to detain Crain even though Crain was walking at
                                                                  night in a residential area known for night-time burglaries and
We agree with Pinkston that the Court's decision in Gurrola       Crain had exhibited the “suspicious” conduct of “grabb[ing]
is instructive in this case. 877 S.W.2d at 304. In Gurrola,       at his waist” upon seeing a police officer. Id. at 53. Like
during the afternoon, an unknown man reported to a patrol         in Crain, in this case, the circumstances of an argument at
officer that there was a disturbance at a nearby apartment        night in an area known for crime coupled with Pinkston's
complex. Id. at 301. The officer knew the apartment complex       constitutional right to walk away from police also do not
to be “an unsafe location that had incurred several complaints    rise to the level of reasonable suspicion. See Zone v. State,
of disturbances from area residents.” Id. The officer drove       84 S.W.3d 733, 738–39 (Tex.App.—Houston [1st Dist.]
over to the parking lot of the complex and saw three men          2002), aff'd, 118 S.W.3d 776 (Tex.Crim.App.2003) (“An
and a woman engaged in what appeared to be an argument.           individual has the right to refuse to answer a police officer's
Id. The officer approached the individuals to find out “what      questions and walk away unless the officer has reasonable
was going on,” but as he did so, they all began to leave. Id.     suspicion to detain that person.”). We hold that Galbraith
After the individuals began to disperse, the officer ordered      lacked reasonable suspicion to detain Pinkston. Thus, we hold
them to stop and the officer then conducted a pat-down            that the trial court erred by denying Pinkston's motion to
search and discovered cocaine on Gurrola's person. Id. The        suppress the evidence found on his person after Galbraith
Court held that the officer lacked reasonable suspicion to        detained him, and we sustain both of Pinkston's issues on
detain Gurrola even though the officer had received an            appeal.
uncorroborated complaint of a disturbance; the argument the
officer witnessed occurred in a “high-crime” area; and the
individuals involved in the argument dispersed upon seeing        C. Was the Denial of Pinkston's Motion to Suppress
the officer. Id. at 303, 305.                                     Harmful?
                                                                   *4 Galbraith's unlawful stop of Pinkston violated his
Here, Galbraith lacked even more articulable facts than the       Fourth Amendment rights, and thus the cocaine discovered
officer in Gurrola. In this case, like in Gurrola, the argument   from that detention should have been suppressed. Because
Galbraith witnessed occurred in a high-crime area and the         the trial court committed constitutional error by denying
                                                                  Pinkston's motion to suppress, we must reverse his conviction


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Pinkston v. State, Not Reported in S.W.3d (2015)


                                                                       799 (Tex.Crim.App.1989)). Indeed, the cocaine found on
unless we determine beyond a reasonable doubt that the
                                                                       Pinkston during Galbraith's illegal detention is the only
error did not contribute to his conviction. See Tex.R.App.
                                                                       evidence that Pinkston possessed cocaine.
P. 44.2(a). We hold that the trial court's denial of
Pinkston's motion to suppress was harmful error because
it “undoubtedly contributed in some measure to the State's
leverage in the plea bargaining process and may well                                        IV. CONCLUSION
have contributed to [Pinkston's] decision to relinquish [his]
constitutional rights of trial and confrontation in exchange for       Having sustained both of Pinkston's issues on appeal, we
a favorable punishment recommendation.” See Castleberry                reverse the trial court's judgment and remand this cause for
v. State, 100 S.W.3d 400, 404 (Tex.App.—San Antonio                    further proceedings consistent with this opinion.
2002, no pet.) (citing McKenna v. State, 780 S.W.2d 797,

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
