                                                                        ACCEPTED
                                                                    01-14-00993-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               4/21/2015 2:12:40 PM
                                                              CHRISTOPHER PRINE
                                                                             CLERK

                   NO. 01-14-00993-CR

               IN THE COURT OF APPEALS             FILED IN
                                            1st COURT OF APPEALS
                FOR THE FIRST DISTRICT          HOUSTON, TEXAS
                    HOUSTON, TEXAS          4/21/2015 2:12:40 PM
                                            CHRISTOPHER A. PRINE
                                                    Clerk
DEMETRUS TREMAINE HORTON §          DEFENDANT-APPELLANT
                         §
VS.                      §
                         §
THE STATE OF TEXAS       §              PLAINTIFF-APPELLEE


                  APPELLANT’S BRIEF


               APPEAL IN CAUSE NO. 1387050
          IN THE 178TH JUDICIAL DISTRICT COURT
                    OF HARRIS COUNTY




                              SCHNEIDER & McKINNEY, P.C.

                              TOM MORAN
                              TEXAS BAR NO. 14422200
                              440 LOUISIANA, SUITE 800
                              HOUSTON, TEXAS 77002
                              (713) 951-9994
                              TELECOPIER: (713) 224-6008
                              EMAIL: tom6294@aol.com

                              ATTORNEY FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT
                                      LIST OF PARTIES

The Hon. Leslie Brock Yates (in her official capacity). . . . . . . . . . . . . . Trial Judge
     1201 Franklin
     Houston, Texas 77002

The Hon. Devon Anderson (in her official capacity). . . . . . . Attorney for the State

Erik M. Locascio (in his official capacity.. . . . . . . . . . . Trial Counsel for the State

       Harris County District Attorney’s Office
       1201 Franklin
       Houston, Texas 77002

Brian D. Coyne. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellant
      1914 N. Memorial Drive Way
      Houston, Texas 77007

Tom Moran. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellant
    Schneider & McKinney, P.C.
    440 Louisiana, Suite 800
    Houston, Texas 77002




                                                   i
                                         TABLE OF CONTENTS


LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
    Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
    Statutes and Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
    Other Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

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

II. STATEMENT CONCERNING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . 1

III. ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
       A. Issue One. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
       Whether Appellant was deprived of the right of effective assistance of counsel
             as guaranteed by the Sixth Amendment, U.S. CONST. amend. VI, not
             being familiar with the law of search and seizure as it applies to
             warrantless searches of persons... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
       B. Issue Two.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
       Whether the trial court erred in overruling Appellant’s motion to suppress
             evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. STATEMENT OF RELEVANT FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .                              2
     A. Officer Moela’s Initial Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   2
     B. Hearing on the Motion to Suppress Evidence.. . . . . . . . . . . . . . . . . . . . .                           4
     C. Officer Moela’s Continued Testimony in the Jury’s Presence. . . . . . . . .                                    7
     D. Officer Benavidez’s Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   8

V. SUMMARY OF THE ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
     A. Issue One. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
     B. Issue Two.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI. ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
     A. Issue One (Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
           1. The Test for Effective Assistance of Counsel. . . . . . . . . . . . . . . . 10

                                                           ii
                 Appellant Was Not Under Arrest When Searched. . . . . . . . . . . . 11
                2.
                3.
                 If Appellant Was Under Arrest, the Arrest Was Unlawful. . . . . . 13
                4.
                 The Warrantless Search Was Constitutionally Impermissible. . . 14
                5.
                 Trial Counsel Was Ineffective. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
                     a. Trial Counsel Lacked a Firm Understanding of the Applicable
                            Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
                     b. Appellant Was Prejudiced. . . . . . . . . . . . . . . . . . . . . . . . . . 21
                     c. There Can Be No Reasonable Trial Strategy. . . . . . . . . . . 22
                     d. Conclusion as to Issue One. . . . . . . . . . . . . . . . . . . . . . . . . 22
        B. Issue Two (Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26




                                                       iii
                                         INDEX OF AUTHORITIES

                                                            Cases

Chambers v. Maroney, 399 U.S. 42 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . 15

Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . 12

Berkemer v. McCarty, 468 U.S. 420 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Chambers v. State, 397 S.W.3d 777 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . 12

Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005). . . . . . . . . . . . 13, 19-21

Ex parte Welborn, 785 S.W.2d 391 (1990).. . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 22

Frangias v. State, 392 S.W.3d 642 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . 10

Griffin v. Wisconsin, 483 U.S. 868 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Minnesota v. Dickerson, 508 U.S. 366 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Missouri v. McNeely,                  U.S.       , 133 S. Ct. 1552 (2013). . . . . . . . . . . 15-17, 20, 21

Riley v. California,              U.S.       , 134 S. Ct. 2473 (2014). . . . . . . . . . . . . . . . . . . . . . 16

Rodriguez v. United States, No. 13-9972 (U.S. April 21, 2015) (not yet reported)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Sibron v. New York, 392 U.S. 40 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . 19

State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . . . 11


                                                               iv
State v. Sheppard, 271 S.W.3d 281 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . 12

State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 13

State v. Villarreal, No. PD-0306-14 (November 26, 2014) (not yet reported). . 15-
                                                                       17, 20, 21

Strickland v. Washington, 466 U.S. 668 (1964). . . . . . . . . . . . . . . . . . . . . . . . 10, 22

Terry v. Ohio, 392 U.S. 1 (1967).. . . . . . . . . . . . . . . . . . . . . . . 10, 12, 14, 15, 20, 24

United States v. Jordan, 232 F.3d 447 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 12

Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . 14, 15



                                              Statutes and Rules

TEX. CODE CRIM. PROC. ANN. art. 14.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

TEX. CODE CRIM. PROC. ANN. art. 14.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. CODE CRIM. PROC. ANN. art. 14.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. CODE CRIM. PROC. ANN. art. 38.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. CONST. art. I, § 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TEX. CONST. art. I, § 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 20, 22, 23

TEX. R. APP. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TEX. R. APP. P. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26



                                                           v
TEX. TRANS. CODE ANN. § 543.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. CONST. amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 15, 20, 22, 23

U.S. CONST. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 23



                                             Other Authority

TEX. DISCIPLINARY R. PROF’L CONDUCT Rule 3.03(a)(4) . . . . . . . . . . . . . . . . . . 21




                                                       vi
TO THE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW DEMETRUS TREMAINE HORTON, Appellant herein, by

and through his attorney, TOM MORAN, and pursuant to TEX. R. APP. P. 38, files

this appellate brief and in support thereof, would show the Court as follows:

                             I. STATEMENT OF THE CASE

      Appellant was charged by indictment with possession of 1-4 grams of

controlled substance, enhanced by two prior felony convictions. C.R.-12.1 He was

convicted in a jury trial and the trial court assessed his punishment at 25 years

incarceration. R.R. 115-18. Appellant filed a timely notice of appeal, C.R. 120-21,

124-25, and this appeal follows.

               II. STATEMENT CONCERNING ORAL ARGUMENT

      This case presents the issue of whether a police officer may conduct a

warrantless search of a person during an investigative detention when there is no

reasonable suspicion that the defendant is armed.

      Appellant asserts that warrantless searches of not under arrest persons are

impermissible under the Fourth Amendment unless the officer has reasonable

suspicion that the suspect is armed.

      He believes oral argument would be helpful to the Court.

      1
          “C.R.” refers to the Clerk’s Record.

                                                 1
                           III. ISSUES PRESENTED

                                   A. Issue One

      Whether Appellant was deprived of the right of effective assistance of
      counsel as guaranteed by the Sixth Amendment, U.S. CONST. amend. VI,
      not being familiar with the law of search and seizure as it applies to
      warrantless searches of persons.

                                   B. Issue Two

      Whether the trial court erred in overruling Appellant’s motion to
      suppress evidence.

                  IV. STATEMENT OF RELEVANT FACTS

      Trial defense counsel filed a pretrial motion to suppress. C.R. 21-23. The

relevant paragraph in the motion reads in full:

      The evidence to be used against Defendant was seized in violation of the
      United States Constitution and the Constitution of the State of Texas.
      Defendant was not under arrest and the officer was not conducting a
      legal pat-down of Defendant.

C.R. 21.

                      A. Officer Moela’s Initial Testimony

      Houston Police Officer Gerald Meola, his partner Officer John Eric Benavidez

and a chemist were the State’s only witnesses. Meola testified he stopped Appellant

for a traffic violation – cutting across three lanes of traffic and exiting a freeway




                                         2
without signaling. R.R.-III-13.2 After Moela turned on his lights, Appellant pulled

into a parking lot and stopped without incident. He was alone in his car Id., at 14.

       Moela testified that when he approached the car, he smelled PCP, which he

described as similar to embalming fluid. Id., 14-15.3 Moela testified that at that point

he had “probable cause” to order Appellant out of the car. He patted him down and

found no contraband “at that point.”4 Moela then “handed him off” to his partner and

searched Appellant’s car. Id., at 16-17. He did not find anything. Id., at 17. He then

had his partner search the car, also with no result. Id., at 17-

       Moela testified that he smelled PCP on Appellant, so he thought the drug was

in his shorts or underwear. Id, at 17-18. He stepped back, saw a bulge in Appellant’s

left sock and thought that was where the PCP was. Id., at 18. He handcuffed

Appellant because people on PCP “can become violent from one second to the next.”

Id., at 19.5 Moela described Appellant’s behavior as “very methodical. I would ask

him a question and he would pause a couple of seconds and then he would just

       2
        “R.R.” refers to the Reporter’s Record. The Roman numeral is the volume number and the
Arabic numerals are the cited pages. Therefore, R.R.-III-13 is volume 3, page 13 of the Reporter’s
Record.
       3
        Moela testified he had no formal training in recognizing the smell of PCP. He picked up
that knowledge by dealing with it on the street about 40-50 times. R.R.-III-15.
       4
           Appellant was wearing a T-shirt, basketball shorts, open toed sandals and socks. R.R. III-18.
       5
       Moela also testified that in his eight years as a Houston police officer he had never
encountered a violent person on PCP but he had heard stories. R.R. III-19-20.

                                                    3
answer my question.” He testified that behavior was indicative of someone who had

smoked or was in possession of PCP. Id.

      When asked by the State whether he knew the effects of PCP on a person,

Moela first asked the prosecutor, “Formally or just my personal experiences?” The

prosecutor replied, “In your experience, 8 years as a police office, have you come into

contact with people who are on PCP?” Moela replied, “Yes.” Id.

      He continued: “Best way I can describe is like a zombie. They’re there but

their lights aren’t on.” Id., at 20. Moela testified he reached into Appellant’s sock

and pulled out three cigarettes “coated with PCP.” He identified the cigarettes as

State’s Exhibit 4. Id., at 20-21.

                 B. Hearing on the Motion to Suppress Evidence

      At this point, the State moved to introduce State’s Exhibit 4 and trial defense

counsel replied, “We have no objection, Your Honor.” Id., at 21.

      At that point, the trial judge called counsel to the bench. It then excused the

jury to conduct a hearing on the motion to suppress evidence. Id.,, at 22-23. The trial

court told trial counsel that despite his statement of no objection, he had told the court

earlier that he wanted a hearing on his motion to suppress evidence. It said it had

heard the officer’s testimony and asked trial defense counsel if he had any further

cross examination for the motion to suppress. Id., at 23.

                                            4
       Moela testified outside the jury’s presence that he stopped Appellant and got

him out of the car because he saw Appellant commit a traffic violation and he smelled

PCP in the car. Id., at 24. Both Moela and his partner searched the car and found no

contraband. Id. He testified his offense report described Appellant as wearing a

white T-shirt and blue, above the knee shorts. Id.

       There was the following exchange between counsel and Moela:

       Q.     So, other than your suspicion or the odor that you smelled,
              you had no reason to think that there had been any crime
              committed other than a traffic violation at that point,
              correct?

       A.     At the time I was searching the vehicle I had reasonable suspicion
              to believe there was narcotics inside the vehicle was the reason
              why I was searching it.

       Q.     That proved not to be true, correct?

       A.     Inside the vehicle, that's correct.

Id., at 25.

       Moela admitted he did not have a warrant to search anything. Id., at 26. The

examination continued:

       Q.     When you observed Mr. Horton standing after you had completed
              your search of the vehicle, you said you saw a bulge in his sock?

       A.     A bulge in his left sock, correct.

       Q.     How big a bulge was that?

                                            5
      A.     Not -- it wasn't like a golf ball size, but it was big enough to
            catch my attention.

      Q.    Did you think it was a weapon?

      A.     No.

      Q.    But at that time you still didn't have a warrant to search him, did
            you?

      A.    I did not.

      Q.    Did you perform a pat down before you went into his sock?

      A.    I did but only on his waistband and his upper body, like I said
            previously, because he was wearing sandals. I wasn't paying too
            much attention to his feet.

      Q.    But you didn't perform a pat down on his socks or ankles or feet,
            did you?

      A.     No. I already had probable cause at that point.

      Q.    So, rather than perform a pat down, you just opened his sock and
            reached in and pulled out what you say was contained in a plastic
            bag and it turned out to be three cigarettes, correct?

      A.    Correct, because I had probable cause. I just reached into his
            sock, pulled out the contraband.

      Q.    What was your probable cause based on, just the suspicious
            odor?

      A.    The odor of PCP.

Id., at 26-27 (emphasis added).



                                         6
      In argument, trial defense counsel told the trial court that Moela had no reason

to search Appellant’s sock and that the proper procedure would have been to perform

a pat down to determine if there was any contraband before performing the search.

Id., at 30-31. The State argued that while the search and arrest were warrantless,

Moela had probable cause that there was PCP either in the vehicle or on Appellant’s

person. It further argued that after searching the car and finding nothing, the officer

had probable cause that it was on Appellant. Because he could not hide it in pockets

of his shorts and after seeing the bulge in Appellant’s sock, the PCP could not be

anywhere else. It argued that based on the totality of the circumstances, the officer

had probable cause to search and arrest Appellant. Id., at 31.

      The trial court overruled the motion to suppress evidence. Id.

       C. Officer Moela’s Continued Testimony in the Jury’s Presence

      Most of the remainder of Moela’s direct examination relates to chain of

custody and is not relevant to this appeal.

      Moela testified that after the cigarettes in State’s Exhibit 4 were seized,

Appellant asked to make a telephone call. Moela said Appellant gave him a

telephone number, he dialed it on Appellant’s cell phone and, after it started to ring,

he put the phone on Appellant’s ear. Id., at 35-36. Moela testified Appellant said he

had gotten pulled over and, “they have my sherm.” Moela further testified that

                                          7
“sherm” is a street name for a cigarette dipped in PCP. Id., at 37.

                           D. Officer Benavidez’s Testimony

       Moela’s partner, Officer John Eric Benavidez also testified about the stop and

arrest. His testimony was after the trial court ruled on the motion to suppress

evidence and the admission of State’s Exhibit 4. Generally, his testimony mirrored

Moela’s testimony.

       He testified that after Moela got Appellant out of the car, he “handed him off”

to Benavidez, who ran a computer check for outstanding warrants. He did not say

what he found but he further testified he did not take control of Appellant, who was

outside the vehicle and not handcuffed. Id., at 73. After both he and Moela had

searched Appellant’s car, they did not let Appellant go because “we hadn’t searched

his person.” Id. He said they searched Appellant for the same “probable cause,

strong odor of PCP.” Id., at 74.

       Appellant testified in his own defense. Generally, his testimony was that he

bought less than a gram of PCP and dipped his cigarettes into the liquid. See

generally, Id., at 77-97.6




       6
        The trial court included a charge on the lesser included offense of possession of less than
a gram of PCP. C.R. 106-07.

                                                8
                     V. SUMMARY OF THE ARGUMENTS

                                     A. Issue One

      To provide effective assistance of counsel, an attorney must have a firm grasp

of the facts and the applicable law of the case. In the instant case, trial counsel failed

to have a firm grasp of the applicable law.

      The record affirmatively reflects that trial counsel was unfamiliar with the

difference between investigative detentions and arrest as well as the concepts of

reasonable suspicion and probable cause and exceptions to the warrant requirement

for both searches and arrests. This caused him to fail to make specific arguments to

the trial court in support of his motion to suppress evidence, including but not limited

to, whether in view of recent case law, police may conduct a warrantless search of a

person who is not under arrest.

      Trial counsel’s errors prejudiced Appellant by depriving him of a fair

opportunity to litigate a meritorious motion to suppress and to appeal an adverse

ruling.

                                     B. Issue Two

      Appellant was stopped on traffic. The Supreme Court and Court of Criminal

Appeals have held that a traffic stop is akin to an investigatory detention, not an




                                            9
arrest.7 The only justification for a warrantless search of a person not under lawful

arrest is if there is a reasonable suspicion that he is armed. Terry v. Ohio, 392 U.S.

1 (1967). Moela made no claim Appellant was armed at the time he searched

Appellant’s sock. To the contrary, he testified that he had frisked Appellant and that

Appellant was unarmed.

                       VI. ARGUMENTS AND AUTHORITIES

                                  A. Issue One (Restated)

       Whether Appellant was deprived of the right of effective assistance of
       counsel as guaranteed by the Sixth Amendment, U.S. CONST. amend. VI
       by not being familiar with the law of search and seizure as it applies to
       warrantless searches of persons.

                    1. The Test for Effective Assistance of Counsel

       Texas follows the two-prong deficient performance/prejudice test set out by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1964). In Ex parte

Welborn, 785 S.W.2d 391, 393 (1990), the Court of Criminal Appeals held that to

provide effective assistance of counsel, a lawyer must have a firm grasp of both the

facts of the case and the applicable law. See also Frangias v. State, 392 S.W.3d 642,



       7
        While the Transportation Code appears to make traffic stops arrests as a matter of Texas law,
see TEX. TRANS. CODE ANN. § 543.003, if in fact they arrests, it would cause a sea change in
investigations and prosecutions of such offenses as driving while intoxicated because the full
panoply of rights for persons in custody would apply. So, for example, TEX. CODE CRIM. PROC.
ANN. art. 38.22 would apply to questioning of any person stopped on traffic.

                                                10
653 (Tex. Crim. App. 2013) (citing Welborn for the proposition that reviewing courts

defer to trial counsel’s strategic decisions as long as they are based on adequate

investigation of the facts and governing law).

        In the instant case, the record clearly reflects that counsel was unfamiliar with

both Texas law on preservation of error, the difference between an investigatory

detention and a full custody arrest as well as the difference in the right of officers

with reasonable suspicion that a person is armed to conduct a pat down search and the

right of officers to conduct a warrantless search for evidence of a person who is not

in custody.

        In view of these errors, Appellant will discuss the applicable law, law which

also is applicable to his Issue Two on denial of the motion to suppress evidence.

                 2. Appellant Was Not Under Arrest When Searched

        A traffic stop normally is an investigative detention, not an arrest. Rodriguez

v. United States, No. 13-9972 (U.S. April 21, 2015) (not yet reported), slip op. at 5,8

Berkemer v. McCarty, 468 U.S. 420 (1984); State v. Ortiz, 382 S.W.3d 367 (Tex.

Crim. App. 2012). The initial detention and stop was a traffic stop for making a lane

change without signaling. Being handcuffed by Moela did not escalate the traffic


        8
         “A stop for a traffic violation justifies a police investigation of that violation. ‘[A] relatively
brief encounter,’ a routine traffic stop is ‘more analogous to a so-called ‘Terry stop’ .... than a formal
arrest.’” (internal citations omitted).

                                                    11
stop from a Terry-type investigative detention to a full custody arrest.9

       There is no bright line between a Terry detention and an arrest. The mere act

of handcuffing a person does not automatically convert an investigatory detention

into an arrest. State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008).

During an investigative detention, an officer may use the force reasonably necessary

to effect the goal of the detention, maintain the status quo or for officer safety.

Chambers v. State, 397 S.W.3d 777, 781 (Tex. Crim. App. 2013). For example, in

Chambers, the Court of Criminal Appeals determined that Chambers was not arrested

even though handcuffed because the handcuffing was reasonably necessary to protect

the officer and those around him. Id., at 783. See also United States v. Jordan, 232

F.3d 447 (5th Cir. 2000) (handcuffing a suspect does not automatically convert an

investigatory stop into an arrest), cited with approval in Baldwin v. State, 278 S.W.3d

367, n. 4 at 374 (Tex. Crim. App. 2009) (Cochran, J., concurring).

       In the instant case, Moela testified he handcuffed Appellant because he

believed Appellant was on PCP and people on PCP “can become violent from one

second to the next.” Thus, just like the officer in Chambers, Moela acted restrain

Appellant for the officer’s safety. This is consistent with Benavidez’s testimony that


       9
        In Rodriguez, Justice Thomas distinguishes between a traffic stop based on reasonable
suspicion and one based on probable cause. Slip op., at 8 (Thomas, J., dissenting). He
acknowledges the Majority rejected this distinction. Id.

                                             12
Appellant was not released because he had not yet been searched. If Appellant had

been under arrest, Benavidez would have said so.

            3. If Appellant Was Under Arrest, the Arrest Was Unlawful

       In Estrada v. State, 154 S.W.3d 604, 608 (Tex. Crim. App. 2005), the Court of

Criminal Appeals, explaining its holding in State v. Steelman, 93 S.W.3d 102 (Tex.

Crim. App. 2002), held that while the smell of burning marijuana can constitute

probable cause to search, it does not constitute probable cause that a person

committed the offense of possession of marijuana in the officers’ presence. This is

based on the truth that the smell of marijuana and PCP will remain after the drug is

gone.10 Moela’s testimony was that his sole probable cause was the smell of PCP.

As Estrada explains, that is not sufficient probable cause that a crime is being

committed in the officer’s presence.

       Chapter 14 of the Code of Criminal Procedure limits peace officers’ authority

to make warrantless arrests. A peace officer may arrest anyone who commits a crime

in his presence, TEX. CODE CRIM. PROC. ANN. art. 14.01. Other provisions of Chapter

14 grant officers the authority to make warrantless arrests in certain limited

circumstances involving specific offenses such as family violence or drunk driving,



       10
        The best example of this truth is the testimony of the two officers that they smelled PCP
in Appellant’s vehicle but found none after a thorough search of the car.

                                               13
TEX. CODE CRIM. PROC. ANN. art. 14.03, and if there is probable cause that a felony

has been committed and the suspect is about to escape, TEX. CODE CRIM. PROC. ANN.

art. 14.04.

      None of these exceptions authorize an arrest in the instant case. There is no

allegation that Appellant had committed a crime of family violence or any other

offense set out in Article 14.03. At the time of the search, Appellant was 1)

handcuffed and 2) in custody as part of the investigative stop for the traffic offense.

He was not about to escape such that the officers had no time to procure a warrant.

Thus, a warrantless arrest for possession of PCP prior to the search was not

authorized by Chapter 14 and a later arrest was the product of an unconstitutional

search.

          4. The Warrantless Search Was Constitutionally Impermissible

      Probable cause to search and permissible warrantless searches are separate

concepts. An officer may have probable cause to search but in the absence of a

warrant or a recognized exception to the warrant requirement, a warrantless search

is a Fourth Amendment/Article I, § 9 violation. While the Court of Criminal Appeals

has said in dicta the Supreme Court authorizes a police officer to conduct a

warrantless search of a person for contraband, see e.g., Wright v. State, 7 S.W.3d 148,

150 (Tex. Crim. App. 1999), that is incorrect. Terry frisks are limited to searches for

                                          14
weapons. In fact, one of the cases cited in Wright, Minnesota v. Dickerson, 508 U.S.

366, 373 (1993), specifically holds that a Terry frisk is strictly limited to searches for

weapons.11 If it goes beyond what is necessary to determine if a suspect is armed, the

fruits must be suppressed. See also, Sibron v. New York, 392 U.S. 40, 65-66 (1968).

See also Baldwin v. State, 278 S.W.3d 367, 371-72 (Tex. Crim. App. 2009) (holding

that contraband found by “plain feel” during a weapons pat down is admissible but

probable cause is necessary to search other than for weapons).

       In the instant case, at the time of the search of Appellant’s sock, 1) there was

no evidence in the record that the officers had reasonable suspicion at any time that

Appellant was armed, and 2) Moela previously had conducted a pat down –

permissible under Terry or not – in which Moela determined that Appellant was

unarmed. At that point, there was no exception to the Fourth Amendment, Article I,

§ 9 warrant requirement allowing a search of Appellant’s sock.

       This case was tried and the motion to suppress argued on December 2, 2014.

R.R. III-3. This is after the Court of Criminal Appeals handed down its decision in

State v. Villarreal, No. PD-0306-14 (November 26, 2014) (not yet reported), and long

after the Supreme Court handed down Missouri v. McNeely,                  U.S.    , 133 S. Ct.


       11
         Of course, if during a proper Terry frisk, an officer discovers something immediately
recognizable as contraband, he is not required to ignore it and the contraband is not subject to
suppression.

                                              15
1552 (2013), on April 7, 2013.

      One section of Villarreal is titled by the Court of Criminal Appeals “1. A

Search of a Person Pursuant to a Criminal Investigation Requires a Search Warrant

or Recognized Exception to a Warrant.” Slip op. at 25. In that section, the Court of

Criminal Appeals cited McNeely,        U.S., at   , 133 S. Ct., at 1558, and Riley v.

California,    U.S.   ,   , 134 S. Ct. 2473, 2482 (2014), for the proposition that a

warrantless search of people to further a criminal investigation is reasonable only if

it falls within a recognized exception to the warrant requirement. Slip op., at 26.

      None of the exceptions to the warrant requirement apply to the warrantless

search of Appellant. There is no evidence that Appellant consented to a search of his

person or that he was even asked for consent. Appellant’s car was searched and no

contraband was found. Appellant was not under arrest at the time he was searched.

The special needs doctrine set out in the cases cited by the Court of Criminal Appeals

in Villreal, Griffin v. Wisconsin, 483 U.S. 868 (1987), involved the special need for

states to conduct searches of probationers in order to properly operate a probation

program, a program involving persons who are under supervision of the state.

Special needs is a very narrow exception to the warrant requirement inapplicable to

the instant case..

      Of importance to the analysis of peace officers to conduct a warrantless search

                                         16
of a person is a careful reading of McNeely. McNeely does not limit the warrant

requirement for searches of persons to blood draws in DWI investigations. To the

contrary, the Court held that DWI blood draws are included in the general prohibition

of warrantless searches of persons. The Court wrote:

             The Fourth Amendment provides in relevant part that "[t]he
      right of the people to be secure in their persons, houses, papers, and
      effects, against unreasonable searches and seizures, shall not be
      violated, and no Warrants shall issue, but upon probable cause." Our
      cases have held that a warrantless search of the person is reasonable
      only if it falls within a recognized exception. That principle applies to
      the type of search at issue in this case, which involved a compelled
      physical intrusion beneath McNeely's skin and into his veins to obtain
      a sample of his blood for use as evidence in a criminal investigation.
      Such an invasion of bodily integrity implicates an individual's "most
      personal and deep-rooted expectations of privacy."

  U.S., at , 133 S. Ct., at 1558 (internal citations omitted).

      Thus, McNeely and Villareal hold warrantless searches of persons generally are

unreasonable and a blood draw is one of those types of searches. Stated differently,

warrantless searches of persons are unreasonable absent some exception to the

warrant requirement and blood draws are one genre of searches requiring warrants or

an exception to the warrant requirement such as exigent circumstances.

      There is no exception to the warrant requirement applicable to the instant case

authorizing the officers to search Appellant for contraband. Therefore, the trial court

should have suppressed the PCP cigarettes found in Appellant’s sock.

                                          17
                        5. Trial Counsel Was Ineffective

    a. Trial Counsel Lacked a Firm Understanding of the Applicable Law

      Trial counsel’s full argument to the trial court was:

             MR. COYNE: Yes, Your Honor. I would like to point out that the
      officer did perform a warrantless arrest on Mr. Horton. He failed to
      follow proper procedures. He really had absolutely no reason to search
      my client's socks. There was a – he said a small – I mean, we know
      what was contained in the sock according to the officer was three
      cigarettes, which do not create a bulge, not even if they're in a sandwich
      bag. I think that his proper procedure would have been to perform a
      pat-down search of this suspect to see if they were able to locate any
      type of contraband that would allow them to further search and that
      wasn't done, Judge. And with that, I would ask that you suppress this
      evidence.

R.R. III-30-31.

      The State’s full argument was:

             MR. LOCASCIO: Your Honor, the arrest and search were
      warrantless but as Officer Meola testified, he had probable cause that
      there was PCP either somewhere on the defendant or in the vehicle. He
      methodically checked the vehicle, didn't find PCP, looked at the
      defendant, and was still getting a very, very strong odor of the chemical
      odor of PCP and therefore had the probable cause. Additionally, looking
      at the – when he saw the bulge in his sock, that tipped him off to it could
      possibly be there, especially in light of the fact the defendant was
      wearing pocketless basketball shorts where he couldn't be hiding it
      really anywhere else. Based on the totality of the circumstances, the
      officer had probable cause the crime was being committed and,
      therefore, was able to search the defendant and arrest him based on
      that.

R.R. III-3. (Emphasis added).

                                          18
      The italicized portion of the State’s argument is an admission that the arrest

was for possession of drugs. This means that the State acknowledges Appellant was

not under arrest until the drugs were found. Even if the arrest for possession of PCP

was before the search, the search would have been the product of an illegal arrest

because the smell of drugs standing alone is insufficient under Estrada to be probable

cause that an offense was committed in the officer’s presence.           See State v.

Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014) (warrantless search

permissible pursuant to lawful arrest).

      The generic language in the motion to suppress evidence is sufficient to raise

the issue of the constitutionality of the warrantless search and whether Appellant was

under arrest. However, in his argument to the trial court, trial counsel essentially 1)

admitted a warrantless arrest and 2) based his argument on “proper procedure,” which

he said was to conduct a pat down to see if they could locate contraband and therefore

proceed further in a search. In fact, Appellant was not under arrest and if he had

been, the search would have been permissible as a search incident to arrest only if the

arrest was legal. In his oral argument, trial counsel abandoned the argument in his

written motion to suppress that it was an illegal pat down. To the contrary, he

asserted Moela should have conducted a pat down. Trial counsel never argued orally

or in writing that Appellant was not under arrest and he did not distinguish between

                                          19
an investigatory detention under Terry and a full custody arrest. He he never argued

– either in his generic written motion to suppress or orally – that warrantless searches

of persons are Fourth Amendment/Article I, § 9 violations in the absence of a

recognized exception to the warrant requirement

        McNeely and Villarreal were decided before the trial in the instant case and the

hearing on the motion to suppress. Both the Supreme Court and the Court of

Criminal Appeals held in those cases that warrantless searches of persons are

unreasonable unless they fall within an exception to the warrant requirement,

something not present in the instant case. Villarreal, was handed down and placed

on the internet only six days before the trial in the instant case. All trial counsel had

to do was look at the most recent handdowns from the Court of Criminal Appeals to

find Villarreal.12 Neither trial counsel nor the attorney for the State appeared to

recognize the necessity for a warrant to search a person. The attorney for the State

argued that the smell of PCP was sufficient probable cause that a crime was being

committed,        justifying      a    warrantless       search      and     warrantless       arrest,

Estrada notwithstanding. At most, the officers had probable cause to obtain a search



        12
         On November 26, 2014, the Court of Criminal Appeals released only three opinions on
petitions for discretionary review. http://www.search.txcourts.gov/handdown.aspx?
coa=coscca&fulldate=11/26/2014 (visited April 15, 2015). Surely, reading three opinions is not too
much of a task for a lawyer about to begin a trial in which his client faces 25 years to life in prison.

                                                  20
warrant for Appellant’s person, not make a warrantless arrest in violation of Chapter

14.

       It is apparent from the record that neither trial counsel nor the prosecutor was

familiar with the holdings in McNeely and Villarreal that searches of persons require

warrants.13 Neither was familiar with Estrada. It also is apparent that neither lawyer

was familiar with Chapter 14 of the Code of Criminal Procedure or chose to ignore

it.

       It follows directly that trial counsel’s performance was deficient for purposes

of Strickland based on his lack of a firm grasp of the applicable law.

                                b. Appellant Was Prejudiced

       The criminal act alleged in the instant case was possession of a controlled

substance, PCP. The PCP was located by the police based on an illegal, warrantless

search of Appellant’s person. Without the PCP-laced cigarettes in evidence and the

testimony from the chemist that they contained PCP, there is a reasonable probability

that the result would have been different, that is, there would have been a directed

verdict of acquittal. Therefore, Appellant was prejudiced for purposes of Strickland.


       13
          If the prosecutor was aware of and understood the holdings in McNeely and Villareal, and
failed to disclose them to the trial court, he was acting unethically. TEXAS DISCIPLINARY R. PROF’
CONDUCT, Rule 3.03(a)(4) (A lawyer shall not knowingly...fail to disclose to the tribunal authority
in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client
and not disclosed by opposing counsel.)

                                                  21
                 c. There Can Be No Reasonable Trial Strategy

      Both the Supreme Court in Strickland and the Court of Criminal Appeals in

Wellborn recognize that trial lawyers have to make strategic decisions which should

be respected if they are based on a firm understanding of the applicable law and the

facts. In the instant case, regardless of trial counsel’s grasp of the facts, the record

shows he had no clue as to the applicable law.

      There can be no rational trial strategy in failing to raise constitutionally

relevant and viable arguments in a motion to suppress evidence when the charge

against the client is possession of the evidence sought to be suppressed.

                           d. Conclusion as to Issue One

      Prior to voir dire, Appellant told the trial court that trial counsel had told him

that he could not beat the case. R.R. II-7. Trial counsel was wrong. He had a viable

motion to suppress evidence. He simply failed to present it properly because he did

not know the applicable law.

      Trial counsel did not argue, either orally or in writing, his Fourth

Amendment/Article I, § 9 illegal search claim. In his oral argument to the trial court

he affirmatively misstated the law by saying that the officer should have conducted

a non-Terry pat down before he searched Appellant’s sock. He effectively abandoned

and failed to present arguments showing the warrantless search of Appellant’s person

                                          22
was a constitutional violation and not authorized by any exception to the warrant

requirement recognized by the Supreme Court of the United States or the Court of

Criminal Appeals.

      As shown, supra., Appellant was not under arrest at the time of the search, the

officers lacked probable cause that he had committed an offense in their presence and

that a search of a person for contraband, other than one incident to a lawful arrest or

some other recognized exception to the warrant requirement is a Fourth

Amendment/Article I § 9 violation.

      Trial counsel failed to provide the level of representation guaranteed by the

Sixth Amendment, U.S. CONST. amend. VI, and the Texas Constitution, TEX. CONST.

art. I, § 10. He essentially waived his motion to suppress with his arguments to the

trial court even though the evidence adduced from Moela showed the search violated

the Texas and United States Constitutions. He was unfamiliar with the law, including

at one case decided by the Court of Criminal six days before the trial. The only

defense he presented and argued was that the three cigarettes, which the chemist

testified weighed 2.98 grams,14 weigh less than a gram without the filters. See

generally, R.R. III-102-05. He asked the jury to convict Appellant of possession of

less than a gram of PCP. Id., at 105-06. He presented no evidence as to how much

      14
           R.R. III-54.

                                          23
the filters weigh.

      Due to trial counsel’s failure to understand applicable search and seizure law

and to argue it to the trial court adequately and competently, Appellant was convicted

of a crime for which he should have been acquitted or which should have been

dismissed after the motion to suppress was granted.

                             B. Issue Two (Restated)

      Whether the trial court erred in overruling Appellant’s motion to
      suppress evidence.

      This issue is briefed in conjunction with Issue One, ineffective assistance of

counsel. Appellant adopts by reference § VI(A)(2) through § VI(A)(5)(a) as the

arguments and authorities for this issue.

      The seizure of the PCP from Appellant’s person was, in the words of the

motion to suppress evidence, “in violation of the United States Constitution and the

Constitution of the State of Texas. Defendant was not under arrest and the officer

was not conducting a legal pat-down of Defendant.”

      While the search of Appellant’s vehicle probably passed constitutional muster

based on the automobile exception to the warrant requirement, Chambers v.

Maroney, 399 U.S. 42 (1970), there is nothing in the record indicating Moela had

reasonable suspicion to conduct Terry pat down for weapons. Even so, once Moela


                                            24
was assured Appellant was unarmed by that pat down, regardless of its legality, there

was no constitutionally viable reason for the warrantless search of Appellant’s person.

      For these reasons, this Court should reverse the trial court’s order overruling

his motion to suppress evidence, vacate the conviction and remand for a new trial.

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

grant oral argument, reverse the trial court’s decision on the motion to suppress

evidence, vacate the conviction and remand for a new trial.

                                                     Respectfully submitted,
                                                     Schneider & McKinney, P.C.


                                                     /s/ Tom Moran
                                                     Tom Moran
                                                     Texas Bar No. 14422200
                                                     440 Louisiana, Suite 800
                                                     Houston, Texas 77002
                                                     (713) 951-9994
                                                     Telecopier: (713) 224-6008
                                                     Email: tom6294@aol.com

                                                     Attorney for Appellant




                                          25
                      CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that the above document contains

5,675 words, excluding the portions excluded in TEX. R. APP. P. 9.4(i)(1).



                                                     /s/Tom Moran
                                                     Tom Moran

                         CERTIFICATE OF SERVICE

      I certify that the above brief was served on the State of Texas through

electronic filing and by delivering a copy to the Harris County District Attorney’s

Office, ATTN: Appellate Division, 1201 Franklin, Houston, Texas 77002 on this 21st

Day of April, 2015.



                                                     /s/ Tom Moran




                                         26
