                                                                                ACCEPTED
                                                                            06-14-00212-CR
                                                                 SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       4/28/2015 4:31:55 PM
                                                                           DEBBIE AUTREY
                                                                                     CLERK

                     No. 06-14-00212-CR

             IN THE COURT OF APPEALS FOR THE               FILED IN
                                                    6th COURT OF APPEALS
              SIXTH JUDICIAL DISTRICT OF       TEXAS TEXARKANA, TEXAS
                                                    4/29/2015 8:57:00 AM
                       AT TEXARKANA                     DEBBIE AUTREY
                                                            Clerk

___________________________________________________________


                 TERRY EUGENE GLENN, SR,
                         Appellant

                              VS.

                    THE STATE OF TEXAS,
                          Appellee

____________________________________________________________


                    APPELLANT’S BRIEF

____________________________________________________________

                        On appeal from

 THE 71ST JUDICIAL DISTRICT COURT, HARRISON COUNTY, TEXAS

                    Trial Court No. 12-0455X

                   Hon. Brad Morin, Presiding




           APPELLANT REQUESTS ORAL ARGUMENT
                 IDENTITY OF PARTIES AND COUNSEL



TERRY EUGENE GLENN, SR, Appellant


Trial Counsel for Appellee:
Honorable Shawn Connelly
Assistant District Attorney
State Bar No. 24051899
Harrison County Criminal District Attorney’s Office
P.O. Box 776
Marshall, Texas 75670
903-935-8408 Telephone


Trial Counsel for Appellant:
Ms. Katherine Betzler
State Bar No. 24066509
400 Repose Lane, Apt. A
Marshall, Texas 75670
210-842-9749 Telephone


Appellate Counsel for Appellant:
Ms. Laura M. Carpenter
State Bar No.08618050
106 West Houston Street
Marshall, Texas 75671
903-938-7440 Telephone
903-938-3008 Fax


Appellate Counsel for Appellee
Harrison County Criminal District Attorney’s Office
P.O. Box 776
Marshall, Texas 75670
903-935-8408 Telephone
                                                      ii.
                          TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………………ii
Table of Contents
……………………………………..………………………………………..……iii
Index of
Authorities…………..…………………………………………………………iv-v

Statement of the
Case……………………………………………………………………………..1

Issues
Presented…………………….…………………………………………….…. .2

Statement of
Facts……………………………………………………………………….……2

Argument and Authorities for Issue Number One ……………..………..…6

     ISSUE NUMBER ONE: The trial court erred in denying Appellant’s
Motion to Suppress

Argument and Authorities for Issue Number Two…………………………12

     ISSUE NUMBER TWO: The trial court erred in admitting the
physical evidence as the State did not present a proper chain of custody

Conclusion…………………………………………………………………….14

Prayer…………………………………………………………………………..15

Certificate of
Service………………………………………………………………………….16

Certificate of Compliance……………………………………………………..16




                                                                       iii.
                        INDEX OF AUTHORITIES

Cases:

Amores v. State, 816 S.W. 2d 407, 413 (Tex. Crim. App. 1991)      p. 10

Arizona v. Hicks, 480 U.S. 321, 326-29 (1987)                     p.11

Ballentine v. State, 71 S.W. 3d, 763, 768 (Tex. Crim.App. 2002)   p.8

Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App . 2000)      p.8

Christmas v. United States, 314 A.2 473 (D.C. 1974)               p.11

Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971)               p.10

Dossett v. State, 216 S.W. 3d 7, 17 (Tex.App – San Antonio        p.13
2006 pet ref’d)

Eisenhauer v. State,754 S.W.2d 159 164 (Tex. Crim. App. 1988)     p.9
Ford v, State,158 S.W.3d 488, 492                                 p.8

Horton v. California, 496 U.S. 128, 136 (1990)                    p.10

Katz v. United States, 389 U.S. 347, 357 , 88 S. Ct. 507, 19
L.Ed. 2d 576 (1967)                                               p.6

Keehn v. State,279 S.W. 3d 330, 334 (Tex. Crim. App. 2009)        p.10

McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991)      p.9

Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000)        p.9

Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986)       p. 6

Schenckloth v. Bustamonte, 412 U.S. 218, 219 (1973)               p.9

State v. Ballard, 987 S.W. 2d 889, 892 (Tex. Crim. App. 1999)     p.9

                                                                  iv.
State v. Garcia-Cantu, 253 S.W.3d 236, 238 (Tex. Crim.App 2008)   p.7,8

Terry v. Ohio, 392 U.S. 1, 22 (1968)                              p.8

Thomas v. State, 572 S.W. 2d 507 (1976)                           p.11

Villareal v. State, 935 S.W.2d 134, 140 (Tex. Crim.App. 1996)     p.12



Statutes:

Texas Constitution                                                p.7

Texas Code of Crim. Proc., 1.04, 1.06, 38.23                      p.7

U.S. Constitution,4th, 5th and 14th Amendments                    p.7,8




                                                                    v.
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW Appellant Terry Eugene Glenn, Sr, by and through

Appellant’s attorney of record, Laura M. Carpenter, and, pursuant to the

provisions of Texas Rules of Appellate Procedure 38, et. seq., files this

brief on appeal.


                        STATEMENT OF THE CASE

      This is an appeal from a conviction for possession of less than one

gram of cocaine. TERRY EUGENE GLENN, SR was tried and convicted

by a jury in the 71st Judicial District Court in Harrison County, Texas. After

enhancement, the Appellant was then sentenced by the jury to 15 years in

the Institutional Division of the Texas Department of Criminal Justice.

      For clarity, THE STATE OF TEXAS will be referred to as “the State”,

and TERRY EUGENE GLENN, SR will be referred to a “Defendant” or

“Appellant.”

      More specifically, this is an appeal from a jury trial held beginning

October 7, 2014 in the 71st Judicial District Court, Harrison County, Texas.

Appellant was accused of the offense of Possession of a Controlled

Substance (cocaine less than 1 gram). Prior to trial, a Suppression hearing

was held on March 24, 2014 (RR Vol. 2, pp 1-46) and the trial court denied

the Appellant’s Motion to Suppress. (RR Vol 2, p. 45). A jury was
selected and empanelled. Evidence was presented by the State and the

jury found the Appellant guilty. (RR Vol. 4, p. 182). After Appellant pled

true to enhancements, the punishment trial was held and the jury assessed

punishment at fifteen years in the Institutional Division of the Texas

Department of Criminal Justice. (RR Vol. 5, p. 109.) Appellant timely filed a

Notice of Appeal. Appellant filed a Motion for New Trial. A hearing on the

Motion for New Trial was heard on December 16, 2014, and Judge Morin

denied the motion for a new trial. (RR Vol. 6, p. 80.)


                           ISSUES PRESENTED

                          POINT OF ERROR ONE

      The trial court erred in denying Appellant’s Motion to Suppress?


                          POINT OF ERROR TWO


      The trial court erred in admitting the physical evidence as there was

not proper proof of a chain of custody.


                          STATEMENT OF FACTS

      Terry Eugene Glenn, Sr., appellant, was accused of possession of a

controlled substance, specifically cocaine of less than one gram, on May

13, 2011, while he was in the road at the intersection of Highway 59 and
I-20 in Marshall, Texas. Several Marshall police officers were dispatched

to the area for a disturbance call to find the appellant in the middle of the

intersection with two other individuals dragging him. In the appellant’s

hand were his i.d. and a prescription bottle of his ward, James Mike Tobin.

Without a warrant, without consent, without plain view of drugs, and without

any probable cause, a police officer opened the pill bottle and found

cocaine. Appellant filed a pretrial motion to suppress the admittance of the

cocaine in support of the State’s case. The trial judge denied the motion to

suppress, which the following was detailed at the hearing:


      On May 13, 2011, at approximately 11:14 p.m., Office Jason Mobley

of the Marshall Police Department responded to a call regarding a

disturbance at the intersection of Highway 59 and Interstate 20. (RR Vol.

2, p. 9). Officer Mobley stated he saw two subjects attempting to drag a

black male subject out of the middle of the intersection. (RR Vol 2., p. 10).

The officer identified the black male being dragged as the defendant, Terry

Eugene Glenn, Sr. (RR Vol 2, p. 11-12). After helping the defendant on the

side of the road, Officer Mobley took the i.d. and the pill bottle from the

defendant’s hand without permission. (RR Vol 2, p. 28 and pp. 33-34 ).

Officer Mobley testified that he did not know what was inside the pill bottle.

(RR Vol 2, p. 28.) Officer Mobley never asked the defendant if he could
search inside the pill bottle. (RR Vol. 2, pp. 30-31). The defendant told

Officer Mobley that he was taking care of someone at Motel 6. (RR Vol 2,

p. 31.) which explained why the pill bottle did not have the defendant’s

name on it. Officer Mobley stated that there was no evidence in plain view

and that he did not suspect the defendant of any crime that involved drugs.

(RR Vol 2, p. 34.)


     On examination by the prosecutor, the following questions and

answers by Officer Mobley (RR Vol 2, p. 19):


     Q: So did you open the bottle to see what was, in there was in fact,

since you had been told you said that he was taking Diazapam: I am sorry

Valium or –


     A: Valium


     Q: Okay. And taking that in consideration too, did you open the

     bottle to affirm what the substance whether it was consistent with

     what you were told?


     A: Yes.


     Q: And when you opened the bottle what did you observe?


     A: Two small clear plastic baggies and a white rock substance.
      On cross-examination, testimony by Office Mobley contradicted his

previous testimony and established he did not open the bottle but that

Lieutenant John Johnson had opened the bottle. (RR Vol 2, pp. 34-34.)

Further, Officer Mobley testified that Lieutenant Johnson did not ask for

consent to open the bottle. (RR Vol 2, P. 35).


      Office Mobley responded to questioning that when he came up to the

defendant in the road that there was no probable cause to arrest him for

possession of any kind of drug; that there was no probable cause to arrest

him for a public disturbance; that there was no probable cause to arrest him

when the officer took the i.d. and pill bottle from the defendant’s hand; and

that the officer didn’t know what was inside the pill bottle. (RR Vol 2, pp.

39-40.) Officer Mobley stated that he was conducting a welfare check and

that his main concern was getting the defendant out of the road. (RR Vo.

2, p. 41)


      Officer Mobley affirmed that that he did not know what was inside the

bottle by just looking at it and that he couldn’t see through the bottle at all.

He had no idea that there was anything other than possibly Valium in the

bottle. (RR. Vo. 2, p. 31.)
          ARGUMENTS AND AUTHORITIES FOR ISSUE ONE

     THE TRIAL COURT REVERSIBLY ERRED IN DENYING

APPEALLNT’S MOTION TO SUPPRESS EVIDENCE, TO WIT: COCAINE

SEIZED FROM APPELLANT’S PILL BOTTLE, AS SUCH EVIDENCE WAS

DISCOVERED PURSUANT TO A SEARCH CONDUCTED WITHOUT

PROBABLE CAUSE AND WITHOUT A WARRANT IN VIOLATION OF

APPELLANT’S RIGHTS UNDER THE FOURTH, FIFTH AND

FOURTEENTH AMENDAMENT TO THE U.S. CONSTITUTION, ARITCLE

1 SECTIONS 9,10,13, AND 19 OF THE TEXAS CONSTITUTION, AND

ARTICELS 1.04, 1.06 AND 38.23 OF THE TEXAS CODE OF CRIMINAL

PROCEDURE.


     A search conducted without a warrant is presumed to be

unreasonable. The burden falls on the State to show its reasonableness.

Russell v. State, 717 S.W. 2d 7, 9-10 (Tex.Crim.App. 1986). “Searches

conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment –

subject only to a few specifically established and well-delineated

exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

L.Ed. 2d 576 (1967).
     Article 1, Section 9 of the Texas Constitution also prohibits

unreasonable searches. Illegal searches are also violation of due process

and due course of law guaranteed by the 5th and 14th Amendments to the

U.S. Constitution and Article 1, Section 13 & 9 of the Texas Constitution as

well as Texas Code of Criminal Procedure Articles 1.04, 1.06 and 38.23.


     The Texas Code of Criminal Procedure prohibits the use against

defendants of evidence that was illegally seized. It reads as follows


Art. 38.23. Evidence not to be used

     (a) No evidence obtained by an officer or other person in violation of

        any provisions of the Constitution or laws of the State of Texas, or

        of the Constitution or laws of the United State of America, shall be

        admitted in evidence against the accused on the trial of any

        criminal case.

        The Fourth Amendment protects citizens against unreasonable

     searches and seizures by government agents. U.S. Const. amend.

     IV; see State v. Garcia-Cantu, 253 S.W.3d 236, 238 (Tex. Crim. App.

     2008). A seizure is reasonable under the Fourth Amendment if the

     agent reasonable suspects the person of engaging in criminal activity.
Terry v. Ohio, 392 U.S. 1, 22 (1968); Carmouche v. State, 10 S. W.

3rd 323, 328 (Tex.Crim. App. 2000).

   A police officer conducts a lawful temporary detention when he

has reasonable suspicion to believe that an individual is violating the

law. Ford v. State, 158 S.W.3d 488, 492; Ballentine v. State, 71 S.W.

3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists

when, based on the totality of the circumstances, the office has

specific, articulable facts that, when combined with rational inferences

from those facts, would lead the officer to reasonably conclude that a

particular person actually is, has been or soon will be engaged in

criminal activity. Ford, 158 S.W.3d at 492; Garcia v. State, 43

S.W.3d 527, 530 (Tex. Crim. App. 2001). This is a wholly objective

test that disregards any subjective intent of the officer making the

stop and looks solely to whether an objective basis for the stop

existed at the time the officer made the stop. Ford 158 S.W.3d at 492;

Garcia, 43 S.W.3d at 530. A reasonable suspicion determination is

made by looking at the totality of the circumstances. Ford, 158 S.E.

3d at 492-93; Garcia, 43 S.W. 3d at 530.

   Under the Fourth and fourteenth Amendments to the United States

Constitution, a search conducted without a warrant issued upon
probable cause is per se unreasonable, limited to a few well-

delineated exceptions. Schenckloth v. Bustamonte, 412 U.S. 218,

219 (1973); Reasor v. State, 12 S.W. 3d 813, 817 (Tex. Crim. App.

2000). “ A search prior to the establishment of probable cause can

never be considered valid” because a police “office could stop a

vehicle for any reason or no reason, search its passenger

compartment and then arrest the occupants based on whatever

evidence is found in the search” State v. Ballard, 987 S.W.2d 889,

892 (Tex. Crim. App. 1999) Thus, the issue is whether the police

office had the “existence of probable cause to arrest an appellant

before the search.”

   “Probable cause to search exists when reasonably trustworthy

facts and circumstances within the knowledge of the officer on the

scene would lead a man of reasonable prudence to believe that the

instrumentality of a crime or evidence of a crime will be found.”

McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). The

“totality of the circumstances approach applies to

warrantless…seizures of persons and property.” Eisenhauer v. State,

754 S.W.2d 159, 164 (Tex. Crim. App. 1988). The “burden is on the

State to prove the existence of probable cause to justify a warrantless
arrest or search.” Amores v. State, 816 S.W. 2d 407, 413 (Tex. Crim.

App. 1991).

      The plain-view doctrine is an exception to the warrant

requirement, which permits an officer to seize what he views in plain

sight or open view if he is lawfully on the premises. Coolidge v. New

Hampshire, 403 U.S. 443, 465 (1971). A seizure of an object is

lawful under the plain view exception if three requirements are

satisfied: (1) law enforcement officials must lawfully be where the

object can be plainly viewed, (2) the incriminating character of the

object in plain view must be immediately apparent to the officials, and

(3) the official must have the right to access the object. Keehn v.

State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009).

      A plain-view seizure is only permitted if “its incriminating

character is ’immediately apparent.” Horton v. California, 496 U.S.

128, 136 (1990). Under such prong, the United States Supreme

Court explained that the Fourth Amendment requires that a police

officer have probable cause to believe that the object is one that the

police officer has power to seize, i.e., contraband, fruits or

instruments of crime, or evidence that a crime was committed or that
a particular person committed it. Arizona v. Hicks, 480 U.S.. 321,

326-29 (1987).

      In Thomas v. State, 572 S.W.2d 507 (1976), the Texas Court of

Criminal Appeals held in that case that the seizure of pills could not

be upheld under the plain view doctrine. “Prescription drugs are not

inherently contraband, stolen goods or objects dangerous in

themselves. The mere viewing of bottles with drugstore labels on

them did not authorized the officers to enter the automobile and

search the jacket or seize the pills.” Id. At 509.

      In Christmas v. United States, 314 A.2d 473 (D.C. 1974), the

District of Columbia Court of Appeals ruled,

            The only theory upon which the seizure of the medicine
            vial and the examination of its contents may be sustained
            is that the vial (although not its contents) was in plain
            view.


            But even under such circumstances the Court
            admonished…”that plain view alone is never enough to
            justify the warrantless seizure of evidence.” Absent
            therefore probable cause to believe at the time of the
            initial intrusion that the medicine vial contained
            contraband or that it in some way endangered the
            officer’s safety, he had in our opinion no more authority to
            seize the vial and examine its contents than he would
            have had, under the circumstances, to seize and examine
            the contents of a woman’s handbag, a man’s attache
            case, or a grocery bag. Id. At 476.
       In this case, Officer Mobley stated he did not have any probable

cause to arrest the Appellant. Office Mobley continued stating that he

couldn’t see anything in the pill bottle. It turns out that another officer,

Lieutenant Johnson actually opened the bottle and stated that it was

cocaine. There is absolutely no evidence brought forward from the

prosecution that Lieutenant Johnson had any legal basis to open the

pill bottle.

       At the suppression hearing, Appellant’s counsel argued that he

had an interest in the pill bottle because he was the nurse taking care

of the person whose name was on the prescription. (RR Vol 2, p. 44).

Appellant ran from the hotel room with his ward’s pill bottle clutched

in his hand to avoid the robbers which demonstrates he had an

actual, subjective expectation of privacy. As such, the appellant had

reasonable expectation of privacy in the thing searched. Villareal v.

State, 935 S.W.2d 134, 140 (Tex. Crim. App.1996).




     ARGUMENTS AND AUTHORITIES FOR ISSUE TWO

THE TRIAL COURT REVERSIBLY ERRED IN ADMITTING THE

PHYSICAL EVIDENCE OF THE PILL BOTTLE WITH COCAINE.AS

THERE WAS NO PROPER CHAIN OF CUSTODY
      Proof of the beginning and end of a chain of custody will support the

admission of the evidence in the absence of any evidence of tampering or

alteration. Dossett v. State, 216 S.W.3d 7, 17 (Tex-App – San Antonio

2006 pet ref’d)


      At trial, Officer Mobley said he took the pill bottle and opened it. (RR

Vol 4, p. 103) Officer Mobley stated that after he opened the bottle he

observed inside a plastic bag that had a white rock substance that

appeared to be crack cocaine. (RR Vol 4, p. 104) Later, Officer Mobley

states that actually Lieutenant Johnson took the bottle and opened it. (RR

Vol 4, p. 123). It was Lieutenant Johnson that stated it was crack cocaine

in the bottle. (RR Vol 4, p. 124). Officer Mobley field tested the bottle with a

fluid test. (RR Vol 4, p. 124). Then Officer Mobley gave the bottle to Officer

Joe Chastain. (RR. Vol 2, p. 35.) Officer Mobley testified that he booked

the Appellant for possession of a controlled substance, 4 grams to 200

grams. (RR.Vol 4, p. 110).


      Officer Beck testified regarding receiving the pill bottle for evidence

storage from Officer Mobley. (RR Vol 4, p. 71). Officer Beck took the

evidence to the Tyler lab. (RR Vol 4, p. 71). Ms. Esparza from the Tyler

lab testified that the substance weighed 0.72 grams (RR Vol 4, p. 77).
      Clearly, there is a question about the beginning of the chain of

custody based on the contradictory statements from Officer Mobley. He

begins by stating that he took the pill bottle and opened it and found

cocaine. Then, he corrects himself and states that Lieutenant Johnson

actually took the bottle and opened it and proclaimed finding cocaine.

Lieutenant Johnson was the beginning of the chain of custody. Counsel for

appellant objected to the chain of custody stating the State had not justified

the chain of custody. (RR Vol. 4, p. 105). Additionally, there is a question

on why Appellant is booked in on possession of 4 to 200 grams when the

lab reports the weight of the substance to be less than 1 gram.


                                CONCLUSION


      The evidence presented to secure a conviction of the Appellant was

the result of an illegal search inside the pill bottle and therefore

inadmissible under the Texas exclusionary rule, (Tex. Code Crim. Pro. Art.

38.23). There was no warrant, no probable cause, nor any exceptions to

allow the search inside the seized bottle.


      The chain of custody of the pill bottle was not proven from the

beginning of the chain of custody. Testimony from Officer Mobley was that

another officer, Lieutenant Johnson, was the first person to take the pill
bottle and open it and declare cocaine. Coupled with the discrepancy

between the amount that the Appellant was booked for and the actual

weight raises clear questions of the beginning of the chain of custody. The

State had the burden to prove the chain of custody and the State failed to

call the person who first took the pill bottle and open it.




                                   PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays this

Honorable Court of Appeals reverse the conviction in this case and render

a judgment of acquittal, or if this Honorable Court elects not to render a

judgment of acquittal, Appellant prays this Honorable Court of Appeals

reverse the conviction and remand the case to the trial court.


                                            Respectfully submitted,




                                            /s/ Laura M. Carpenter

                                            Laura M. Carpenter
                                            Counsel for Appellant
                                            106 W. Houston
                                            Marshall, TX 75672
                                            903-938-7440 tel.
                                            903-938-3008 fax
                                            State Bar No. 08618050
                        CERTIFICATE OF SERVICE

      This is to certify that on April 28, 2015, a true and correct copy of the
foregoing document was delivered by mail to counsel for the state, Hon.
Coke Solomon, at Harrison County District Courthouse, Marshall, Texas.


      /s/ Laura M. Carpenter
      Laura M. Carpenter




                     CERTIFICATE OF COMPLIANCE

     I certify that this brief contains 3,591 words according to the computer
program used to prepare the document.


      /s/ Laura M. Carpenter
      Laura M. Carpenter
