                                                                                   PD-1087-14
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 2/13/2015 2:36:05 PM
February 13, 2015                                                 Accepted 2/13/2015 2:40:07 PM
                                                                                    ABEL ACOSTA
                                 CAUSE NO. PD-1087-14                                       CLERK

                                         IN THE
               COURT OF CRIMINAL APPEALS OF TEXAS

                              ______________________________

                                IKE ANTYON BRODNEX
                                           Appellant/Petitioner

                                            V.

                                STATE OF TEXAS
                                               Appellee/Respondent
                              _____________________________

                    From the Eleventh Court of Appeals, Eastland, Texas
                           Appellate Cause No. 11-12-00076-CR

              Tried in the 385TH District Court, Midland County, Texas
                              Trial Cause No. CR38804

                         ______________________________________

                           STATE’S BRIEF ON THE MERITS
                             ______________________________

                                      Teresa Clingman
                         District Attorney, Midland County, Texas

                                   Carolyn D. Thurmond
                                 Assistant District Attorney
                                  State Bar No. 00785104
                               500 North Loraine, Suite 200
                                   Midland, Texas 79701
                                    (432) 688-4420 voice
                                     (432) 688-4938 fax
                            carolyn_thurmond@co.midland.tx.us
TABLE OF CONTENTS


Table of Contents

TABLE OF CONTENTS ...........................................................................ii

INDEX OF AUTHORITIES ..................................................................... iv

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

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

STATEMENT OF PROCEDURAL HISTORY ......................................... 3

STATEMENT OF FACTS ......................................................................... 4

ARGUMENT AND AUTHORITIES ......................................................... 7

  State’s Reply to Ground One .................................................................. 7

  Summary of Argument .......................................................................... 7

  Argument ............................................................................................... 8

     A. Standard of Review for Motion to Suppress.................................. 8

     B. Consensual encounter between Appellant and Officer Chesworth
     ............................................................................................................ 9

     C. The Detention and Frisk of the Appellant .................................. 12

     D. The Appellant Gave Consent to Search His Person ................... 17

                                                       ii
CONCLUSION ........................................................................................ 18

PRAYER FOR RELIEF ........................................................................... 18

CERTIFICATE OF SERVICE................................................................. 20

CERTIFICATE OF COMPLIANCE ........................................................ 21




                                                 iii
INDEX OF AUTHORITIES
Cases

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) ..................... 12

Arguellez v. State, 409 S.W.3d 657 (Tex. Crim. App. 2013) ..................... 8

Brodnex v. State, 11-12-00076-CR, 2014 Tex. App. LEXIS 7780, 2014
  WL 3639133 (Tex. App.—Eastland 2014, pet. granted) ............. passim

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) .................. 17

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) ....................... 8, 14

Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011), cert.
  denied, 132 S. Ct. 150, 181 L. Ed.2d 67, 2011 U.S. LEXIS 6188 (2011)
  .............................................................................................................. 13

Florida Royer, 460 U.S.491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) .. 11

Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389
  (1991).................................................................................................... 10

Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010)......................... 13

Griffin v. State, 215 S.W.3d 403 (Tex. Crim. App. 2006) ....................... 17

Hamal v. State, 390 S.W.3d 302 (Tex. Crim. App. 2012) ....................... 14

Hiibel v. Sixth Judicial Dist. Court of Nev. Humboldt Cnty., 542 U.S.
  177, 124 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) ................................... 10

Immigration and Naturalization Service v. Delgado, 466 U.S.210, 104 S.
  Ct. 1758, 80 L. Ed. 2d 247 (1984) ........................................................ 10

Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim. App. 1984) ............... 16


                                                        iv
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed.
  2d 854 (1973) ........................................................................................ 17

State v. Castleberry, 332 S.W.3d 460 (Tex. Crim. App. 2011) ............ 9, 10

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) ...... 9

State v. Mendoza, 365 S.W.3d 666 (Tex. Crim. App. 2012) .................... 13

State v. Woodward, 341 S.W.3d 404 (Tex. Crim. App. 2011) ......... 8, 9, 12

Strickland State, 923 S.W.2d 617 (Tex. App.--Houston [1st Dist.] 1995,
  no pet.);................................................................................................. 16

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889
(1968) ....................................................................................................... 16
Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2012) ................... 9

United States v. Santos, 403 F.3d 1120 (10th Cir. 2005)......................... 15

United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010)...................... 14

United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1
 (1989).................................................................................................... 13

Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010) ...................... 9

Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013)................ 9, 13, 16




                                                       v
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     COMES NOW the Appellee and Respondent, the State of Texas,

and files this State’s Brief on the Merits in response to the Brief of the

Appellant, and in support thereof would show the Court as follows:



STATEMENT REGARDING ORAL ARGUMENT

     The State submits that oral argument is not necessary because

this Court may make its determination based on the briefs of the

parties and the Court of Appeals opinion. Therefore, the State does not

request oral argument in this cause.



STATEMENT OF THE CASE

     Ike Antyon Brodnex, hereafter referred to as “Appellant,” was

indicted in the 385th District Court of Midland County, Texas, on

August 4, 2011, for the offenses of Tampering with Physical Evidence in

Count One and Possession of a Controlled Substance, to-wit: Cocaine,

in an amount of less than one gram in Count Two. Appellant was




                                     1
subject to enhanced punishment because of two prior sequential felony

convictions. (CR1 9-12).

      Appellant filed a Motion to Suppress Evidence. (CR 118-120). A

pre-trial hearing was held with the presentation of evidence and

argument of counsel. (RR26, 4-29). The trial court denied the motion by

written order. (CR 128). After the close of the hearing, Appellant waived

his right to trial by jury. (CR 130; RR6, 29).

      The case proceeded to a bench trial on January 27, 2012. (RR7, 1).

Appellant was once again admonished regarding his right to trial by

jury. Appellant waived his right to trial by jury. (RR7, 9-15). Appellant

entered a plea of "not guilty" to Count One, Tampering with Evidence,

and “guilty” to Count Two, Possession of a Controlled Substance, to-wit

cocaine, in an amount of less than one gram. (RR7, 15-16). After the

presentation of evidence and argument of counsel, the trial court found

the Appellant not guilty of Count One, but guilty of Count Two as

charged in the indictment. (RR7, 60-61).




1 References to the Clerk’s Record are abbreviated as “CR”, followed by the page
number.
2 References to the Reporter’s Record are abbreviated as “RR” followed by the

volume number and page number.
                                         2
     Appellant pled true to all three enhancement paragraphs in the

indictment. (RR7, 65-68). After presentation of the evidence and

argument of counsel, the judge sentenced Appellant to 20 years

imprisonment in the Texas Department of Criminal Justice

Institutional Division and no fine. (CR 131; RR7, 94). The sentence was

pronounced on January 27, 2012. (CR 131, RR7, 94). The judgment of

conviction was entered on February 1, 2012. (CR 131). Appellant timely

gave notice of appeal. (CR 139).



STATEMENT OF PROCEDURAL HISTORY

     One issue was presented on direct appeal. On July 170, 2014, the

Eleventh Court of Appeals affirmed Appellant’s conviction for

possession of a controlled substance, to-wit: cocaine in Count Two.

Brodnex v. State, 11-12-00076-CR, 2014 Tex. App. LEXIS 7780, 2014

WL 3639133 (Tex. App.—Eastland 2014, pet. granted) (mem. op., not

designated for publication). A motion for rehearing was not filed in the

case. Appellant’s Petition for Discretionary Review was refused on

November 5, 2014. However, the Court on its own motion granted a

Petition for Discretionary Review on November 5, 2014. Appellant


                                    3
timely filed the Brief of the Appellant on January 20, 2015. The State’s

response, State’s Brief on the Merits, is due on February 19, 2015.

Thus, this brief is timely filed.



STATEMENT OF FACTS


      Officer Zachary Chesworth of the Midland Police Department was

on patrol duty around 2:00 a.m. on the early morning of June 7, 2011.

(RR6, 5; RR7, 20). As he neared the Delux Inn, he observed two subjects

leaving the hotel on foot. (RR6, 5; RR7, 21). He contacted the two

individuals on a nearby street. (RR6, 5; RR7, 21).

      Officer Chesworth approached the male subject and asked his

name. Appellant identified himself, Ike Brodnex. (RR6, 5-6; RR7, 21).

Officer Chesworth testified, "Based on my training and experience as a

police officer at the City of Midland, I know that Mr. Brodnex is a

known criminal in the City of Midland." (RR6, 5-6; RR7, 22). Brodnex is

known for “[d]rug possession and things of that nature.” (RR6, 11).

Officer Chesworth acknowledged he did not have a criminal history

report for Brodnex at the time he contacted him. (RR6, 12).




                                    4
     Officer Chesworth placed Brodnex’s hands behind his back and

put them in handcuffs for officer safety. (RR6, 5-6; RR7, 22). Additional

reasons for Officer Chesworth’s concerns about safety were the area

where he found the couple is known for narcotic activity, the time of

night at 2:00 a.m., and he wasn’t sure of the location of his nearest

backup officer. (RR6, 6; RR7, 22).

     Officer Chesworth at this point and took him in front of his police

car and in-car camera. (RR6, 7; RR7, 22). The defendant was not under

arrest. (RR6, 6; RR7, 22). Officer Chesworth started the pat-down

search for weapons. (RR6, 6; RR7, 23). In the course of the search

Officer Chesworth asked Brodnex if he had anything illegal on his

person. (RR6, 7; RR7, 22). Brodnex replied, “No.” Then Officer

Chesworth asked "do you mind if I check?" Brodnex responded “No.”

(RR6, 22; RR7, 23).

     Officer Chesworth checked the waistband of Brodnex’s pants. He

noticed an orange plastic cigar tube protruding out of the “butt crack” of

Brodnex’s buttocks. (RR6, 7; RR7, 23). Officer Chesworth stated this is a

common method for concealing narcotics from officers on the streets.

(RR6, 7). He pulled out the tube, opened it and observed small rocks of a


                                     5
white powdery a substance that appeared to be crack cocaine. (RR6, 7;

RR7, 23). Officer Chesworth asked if this was crack cocaine and

Brodnex confirmed it was cocaine. (RR6, 8; RR7, 23). Officer Chesworth

acknowledged he did not provide any Miranda warnings to Brodnex

prior to asking him the question about the crack cocaine. (RR6, 8; RR7,

23-24).

       Officer Chesworth put the lid back on the cigar tube and placed it

on the front bumper of his police cruiser. (RR6, 8; RR7, 23-24). He

turned his attention to the female with the defendant. Officer

Chesworth saw movement by the defendant as he emptied the contents

from the tube onto the street. A struggle ensued until the defendant

was finally placed into the police car. (RR6, 8-9; RR7, 26). Officer

Chesworth testified on redirect that Brodnex attempted to conceal and

destroy the evidence. (RR7, 43).

       State’s Exhibit 1-the DVD of the in-car camera recording of the

incident was admitted and played for the judge. (RR6, 21-22, 28; RR7,

27).




                                     6
     Bob Wheeler, the chemist for the Department of Public Safety,

testified he tested the contents of the cigar tube. The substance

contained cocaine and weighed 0.54 grams. (RR7, 41).



ARGUMENT AND AUTHORITIES
State’s Reply to Ground One

     A police officer may stop and briefly detain persons
     reasonably suspected of criminal activity. An officer’s
     knowledge of the suspect as a “known criminal” and other
     factors including walking in an area known for narcotics
     activity at 2:00 a.m. created reasonable suspicion for a
     limited pat-down search for officer safety. The Court of
     Appeals correctly affirmed the ruling of the trial court to
     deny the motion to suppress.
Summary of Argument

     The Court of Appeals in Eastland determined the initial encounter

between Appellant and the City of Midland police officer Zachary

Chesworth was consensual and he cooperated by identifying himself to

the officer. Officer Chesworth suspected criminal activity due to the

location of Appellant on the street in an area known for criminal

activities, particularly illegal drug activity, and the time of night at 2:00

a.m. Officer Chesworth determined Appellant was a known criminal in

Midland. Considering the totality circumstances, the officer had


                                     7
reasonable suspicion of criminal activity and detained Appellant. For

the purpose of safety, Officer Chesworth placed Appellant in handcuffs

and initiated a pat-down search for weapons for officer safety. Officer

Chesworth requested and received Appellant’s consent for the search of

his person.


Argument


A. Standard of Review for Motion to Suppress

     An appellate court reviews a denial of a motion to suppress under

the abuse of discretion standard with almost complete deference to the

trial court's rulings on questions of historical fact and application-of-

law-to-fact questions that turn on an evaluation of credibility and

demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App.

2013); Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). When

application-of-law-to-fact questions do not turn on credibility and

demeanor, the appellate court reviews the trial court's rulings on those

questions de novo. State v. Woodward, 341 S.W.3d 404, 410 (Tex. Crim.

App. 2011).Generally, appellate courts view the evidence in the light

most favorable to the trial judge’s ruling, and afford the prevailing

party “the strongest legitimate view of the evidence and all reasonable
                                     8
inferences that may be drawn from that evidence.” Woodward, 341

S.W.3d at 410; citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.

Crim. App. 2008). The appellate court reviews de novo a trial judge’s

application of the law of search and seizure to the facts. Wade v. State,

422 S.W.3d 661, 667 (Tex. Crim. App. 2013); citing Valtierra v. State,

310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The appellate court must

uphold the trial court's ruling if it is supported by the record and correct

under any theory of law applicable to the case. Wade, 422 S.W.3d at

667; Valtierra, 310 S.W.3d at 447-48. When the trial court does not

issue findings of fact, as in this case, the appellate court is to imply

findings that support the trial court’s ruling if the evidence, viewed in

the light most favorable to the ruling, supports those findings.

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2012).


B. Consensual encounter between Appellant and Officer Chesworth

     There are three types of encounters between the police and

citizens: “(1) consensual encounters, which require no objective

justification; (2) investigatory detentions, which require reasonable

suspicion; and (3) arrests, which require probable cause.” State v.

Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011) (citations

                                      9
omitted). An officer may contact anyone and question him as well as

request identification and information from the citizen. Id.; Hiibel v.

Sixth Judicial Dist. Court of Nev. Humboldt Cnty., 542 U.S. 177, 185,

124 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); Florida v. Bostick, 501 U.S.

429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). A citizen is free to

terminate the encounter. Castleberry, 332 S.W.3d at 466. The

consensual encounter does not implicate the Fourth Amendment and its

protections. Id. The fact the citizen complied with the request for

identification does not negate the consensual nature of the encounter.

Id., citing, Immigration and Naturalization Service v. Delgado, 466

U.S.210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984).

     Appellant contended at the Court of Appeals and before this Court

that Officer Chesworth was required to have reasonable suspicion that

criminal activity was afoot in order to initiate contact with Appellant

and the woman with him. (“At no point does the officer testify the

reason for making contact with these two individuals.” Brief of the

Appellant pages 6-8). The Court of Appeals correctly held Officer

Chesworth initiated contact with Appellant on a street in a public place

and this did not implicate Fourth Amendment protections. Brodnex,


                                    10
2014 Tex. App. LEXIS 7780 at *6. The Court of Appeals cited Florida v.

Royer:

     [L]aw enforcement officers do not violate the Fourth Amendment
     by merely approaching an individual on the street or in another
     public place, by asking him if he is willing to answer some
     questions, by putting to him if the person is willing to listen, or by
     offering in evidence in a criminal prosecution his voluntary
     answers to such questions.
     Florida Royer, 460 U.S.491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229

(1983).

     The facts in this case show Officer Chesworth observed two

individuals at 2:00 a.m. in the morning leaving the Delux Inn, which is

in an area known for narcotics activity. (RR6, 5-6; RR7, 21-22). He

contacted the couple and asked Appellant his name. Appellant

identified himself to the officer. (RR6, 5-6; RR7, 21). At this point in the

encounter between Officer Chesworth and Appellant there any is not

suggestion that the encounter was not consensual, such as an officer

drawing his weapon. Appellant elected not to testify at the pretrial

suppression hearing. At trial Appellant testified he cooperated with

Officer Chesworth and identified himself. (RR7, 46).




                                    11
C. The Detention and Frisk of the Appellant

     In this case, the detention and subsequent search of Appellant

occurred without a warrant. (RR6, 4). Thus, the burden of proof is on

the State to prove reasonableness of the seizure. Amador v. State, 275

S.W.3d 872, 878 (Tex. Crim. App. 2009).

     The Court of Appeals determined “Officer Chesworth’s encounter

with Appellant quickly escalated to an investigative detention when he

handcuffed Appellant after Appellant identified himself.” Brodnex, 2014

Tex. App. LEXIS 7780 at *6-7. There is not a bright –line rule that

governs when a consensual encounter becomes a seizure. Woodward,

341 S.W.3d at 411 (citations omitted). The encounter is no longer

consensual when the officer through force or showing of authority

restrains a citizen’s liberty. Id. At this point the encounter becomes a

detention or arrest, both of which are seizures under the Fourth

Amendment. Id. When there is a detention, the reviewing court must

decide if the detaining officer had reasonable suspicion. Id. "A police

officer has reasonable suspicion to detain if he 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,


                                    12
or soon will be engaged in criminal activity.” Derichsweiler v. State, 348

S.W.3d 906, 914 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 150, 181

L. Ed.2d 67, 2011 U.S. LEXIS 6188 (2011) (citations omitted). This

standard is an objective one that disregards the actual subjective intent

of the arresting officer and looks, instead, to whether there was an

objectively justifiable basis for the detention. It also looks to the totality

of the circumstances; those circumstances may all seem innocent

enough in isolation, but if they combine to reasonably suggest the

imminence of criminal conduct, an investigative detention is justified.

"[T]he relevant inquiry is not whether particular conduct is innocent or

criminal, but the degree of suspicion that attaches to particular non-

criminal acts." Wade, 422 S.W.3d at 668; Derichsweiler, 348 S.W.3d at

914. The standard requires only “some minimal level of objective

justification” for the stop. Foster v. State, 326 S.W.3d 609, 614 (Tex.

Crim. App. 2010) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109

S. Ct. 1581, 104 L. Ed. 2d 1 (1989). Whether the facts known to the

officer amount to reasonable suspicion is a mixed question of law and

fact subject to de novo review. State v. Mendoza, 365 S.W.3d 666, 669-70

(Tex. Crim. App. 2012).


                                      13
     The Court of Appeals in its opinion discusses the three factors

present: the area’s narcotic activity, time of day and the officer’s

familiarity that Appellant is a “known criminal.” Brodnex, 2014 Tex.

App. LEXIS 7780 at *8-9. The Court of Criminal Appeals has held that

individually, these factors do not establish reasonable suspicion to for

an investigative detention. Id.; citing Hamal v. State, 390 S.W.3d 302,

308 (Tex. Crim. App. 2012) (prior criminal record); Crain, 315 S.W.3d at

53 (time of day and level of criminal activity in the area). However,

these three factors may be considered in determining the existence of

reasonable suspicion. Hamal, 390 S.W.3d at 308; Crain, 315 S.W.3d at

53; Brodnex at *8-9.

     This Court stated in Hamal, “a prior criminal record does not

itself establish reasonable suspicion but it is a factor that may be

considered.” Hamal, 390 S.W.3d at 308 (citations omitted). Deception

regarding one’s own criminal record is another factor that can

contribute to reasonable suspicion. Id. “[I]n conjunction with other

factors, criminal history contributes powerfully to the reasonable

suspicion calculus.” United States v. Simpson, 609 F.3d 1140, 1147 (10th

Cir. 2010) (quoting United States v. Santos, 403 F.3d 1120, 1132 (10th


                                     14
Cir. 2005). Although a person with a criminal record should not be

detained based on his criminal record itself, such a record is a factor

that may justify further detention and that may cast a suspicious light

on other seemingly innocent behavior. See Id.

     Officer Chesworth testified that when he learned Appellant’s

identity, he recognized him as “a known criminal in the city of

Midland.” (RR6, 5-6). Officer Chesworth was concerned about his

personal safety and at that point placed Appellant in handcuffs. (RR6,

6). Specifically, Appellant was known to police officers for, “Drug

possession and things of that nature.” (RR6, 11). Officer Chesworth

admitted he did not have personal knowledge Appellant’s criminal

history prior to coming into contact with him. (RR6 12). However,

Appellant being a known criminal to Officer Chesworth was a factor of

concern for his personal safety. Specifically, Appellant showed a lack of

regard for the law and threat to his safety to keep himself out of

trouble. (RR6 19-20).

     Thus, in addition to the other factors, and presence of another

person with Appellant, Officer Chesworth placed him handcuffs and

requested to perform a pat-down for weapons. (RR6, 6-7). "A pat down


                                    15
search during a detention is permissible when the police officer

reasonably suspects he is dealing with an armed and dangerous

individual. Strickland State, 923 S.W.2d 617 (Tex. App.--Houston [1st

Dist.] 1995, no pet.); citing Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868,

1880, 20 L. Ed. 2d 889 (1968). The officer may frisk the individual to

determine if the person is, in fact, carrying a weapon and, if so, to

neutralize the threat of physical harm. Terry, 392 U.S. at 24; Wade, 422

S.W.3d at 669.

     The officer does not have to be absolutely certain that the

individual is armed, nor does he have to have probable cause to arrest.

Id. Rather, the issue is whether a reasonably prudent person in the

same circumstances would be warranted in the belief that his or her

safety or that of others is in danger. Id. The record must contain

'specific and articulable facts' that, when taken together with rational

inferences from those facts, would warrant a self-protective search for

weapons." Id. The information known by the officer at the time of the

officer’s actions is to be considered, including any prior criminal record

of the appellant. See Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim.

App. 1984). Furthermore, it has been held that it is objectively


                                     16
reasonable for a police officer to believe an individual involved in the

drug business is armed and dangerous. Griffin v. State, 215 S.W.3d 403,

409 (Tex. Crim. App. 2006); citing Carmouche v. State, 10 S.W.3d 323,

330 (Tex. Crim. App. 2000).


D. The Appellant Gave Consent to Search His Person

     The Court of Appeals also held Officer Chesworth sought and

obtained Appellant’s consent at the outset of the pat-down search.

Brodnex at *10-11. “Consent to search is one of the specific and ‘well-

established exceptions to the constitutional requirements of both a

warrant and probable cause.’” Id., citing Carmouche, 10 S.W.3d at 331;

see Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L.

Ed. 2d 854 (1973). This Court should defer to the trial court’s implied

finding Appellant consented to search since the determination relies

heavily on the credibility of Officer Chesworth and the review of video

which supports the implied finding of Appellant’s consent to search.

Brodnex at *11. It should also be noted that Appellant does not present

a claim that his consent was coerced. Brodnex at *11.




                                    17
CONCLUSION

     The initial encounter between Appellant and Officer Chesworth

was consensual. In viewing the totality of the circumstances, the trial

court found Officer Chesworth had a reasonable suspicion to conduct a

pat-down search for weapons for the reason of officer safety due to the

officer’s knowledge Appellant was a “known criminal” found in an area

known for narcotic activity at 2:00 a.m.. This meets the minimal level of

objective justification for a stop. The Court of Appeals decision to affirm

the trial court’s denial of Appellant’s motion to suppress should be

affirmed by this Court.



PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, the State prays

the Court of Criminal Appeals affirm the judgment of the Court of

Appeals.




                                    18
Respectfully submitted,

Teresa Clingman
District Attorney of Midland County, Texas

By:

/S/ Carolyn D. Thurmond
Carolyn D. Thurmond
Assistant District Attorney
State Bar No. 00785104
500 North Loraine, Suite 200
Midland, Texas 79701
(432) 688-4938 fax
(432) 688-4420 voice
carolyn_thurmond@co.midland.tx.us




                                 19
CERTIFICATE OF SERVICE

     I, Carolyn D. Thurmond, do hereby certify that on the 13th day of

February 2015, I sent a true and correct copy of the foregoing State’s

Brief on the Merits by United States Mail, hand delivery or EServe or

email to the following entities:


Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046
Capitol Station
Austin, TX 78711
Information@spa.texas.gov

Raymond K. Fivecoat
214 West Texas, Suite 811
Midland TX, 79701
Via email
Attorney for Appellant


                             /S/ Carolyn D. Thurmond
                             _____________________________
                             Carolyn D. Thurmond
                             Assistant District Attorney




                                   20
CERTIFICATE OF COMPLIANCE

      I certify the State’s Brief on the Merits was prepared with

Microsoft Word 2010 and that according to that program’s word-count

function, the sections covered by TEX. R. APP. P. 9.4(i)(1) contain 2,884

words. I further certify the body text is Century Schoolbook 14 point

font and the footnote text is 12 point font.

By:

/S/ Carolyn D. Thurmond
____________________________
Carolyn D. Thurmond
Assistant District Attorney




                                    21
