                                                                      ACCEPTED
                                                                  03-15-00053-CR
                                                                          6660449
                                                       THIRD COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                                                            8/26/2015 12:51:06 PM
                                                                JEFFREY D. KYLE
                                                                           CLERK
                  NO. 03-15-00053-CR

               IN THE COURT OF APPEALS         FILED IN
                                        3rd COURT OF APPEALS
                                             AUSTIN, TEXAS
         THIRD DISTRICT OF TEXAS AT AUSTIN
                                        8/26/2015 12:51:06 PM
                                            JEFFREY D. KYLE
                                                 Clerk
***************************************************

                   CAUSE NO. 71,785

          IN THE 264TH JUDICIAL DISTRICT OF

                  BELL COUNTY, TEXAS

***************************************************

 KEVIN DUAN DRISDALE                         APPELLANT

                           VS

  THE STATE OF TEXAS                          APPELLEE

***************************************************

                 APPELLANT’S BRIEF
___________________________________________________

       APPEAL OF JUDGMENT IN CAUSE NO. 71,785
          FROM THE 264TH JUDICIAL DISTRICT
               OF BELL COUNTY, TEXAS
___________________________________________________
NO ORAL ARGUMENT REQUESTED
                          JAMES H. KREIMEYER
                          ATTORNEY FOR APPELLANT
                          P.O. BOX 727
                          BELTON, TEXAS 76513
                          (254) 939-9393
                          (254) 939-2870 FAX
                          T.S.B. #11722000
                          jkreime@vvm.com
             IDENTITY OF PARTIES AND COUNSEL

Judge at Trial:             Hon. Martha J. Trudo
                            264th Judicial District
                            P.O. Box 324
                            Belton, Texas 76513

Prosecutors:                 Michael Waldman
                             Asst. District Attorneys
                             P.O. 540
                             Belton, Texas 76513

Defense Attorney at Trial Scott Wilkerson
                          Attorney at Law
                          100 W. Cent.TX Exp S305
                          Harker Heights, TX 76542

Attorney for Appellant:      James H. Kreimeyer
                             Attorney at Law
                             P.O. Box 727
                             Belton, TX 76513

Attorney for Appellee:       Bob Odom
                             Asst. District Attorney
                             P.O. Box 540
                             Belton, Texas 76513

Appellant:                   Kevin Duan Drisdale
                             TDCJ#01972026
                             James Bradshaw State Jail
                             P.O. Box 9000
                             Henderson, TX 75653




                            ii
                 TABLE OF CONTENTS
                                       PAGE NO.


IDENTITY OF PARTIES AND COUNSEL. . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . .iii

INDEX OF AUTHORITIES. . . . . . . . . . . .iv-v

STATEMENT OF THE CASE. . . . . . . . . . . .1-3

ISSUES PRESENTED. . . . . . . . . . . . . . . 3

STATEMENT OF FACTS. . . . . . . . . . . . . 3-9

SUMMARY OF THE ARGUMENT. . . . . . . . . . . .9

ARGUMENT STANDARD OF REVIEW . . . . . . . .9-17

PRAYER. . . . . . . . . . . . . . . . . . . .18

CERTIFICATE OF COMPLIANCE. . . . . . . . . . 19

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




                         iii
               INDEX OF AUTHORITIES

CASES:                                     PAGE NO.

Malone v. State, 163 S.W.3d 785, 795
    (Tex. App. 2005). . . . . . . . . . . . . . 10

State v. Ibarra, S.W.2d 242, 243
    (Tex. Crim. App. 1997). . . . . . . . . . . 10

U.S. v. Matlock, 415 U.S. 164 (1974). . . .10,11,17

Georgia v. Randolph, 547 U.S. 103, 104, (2006)11-12

Rivas v. State, 446 S.W.3d 575, 580
    (Tex. App. 2014), on remand from pdr, reh’g
    overruled (Oct. 30, 2014). . . . . . . . . .12

Pruett v. State, 463 S.W.2d 191, 194
    (Tex. Crim. App. 1970). . . . . . . . . . . 12

Denton v. Texas Dep’t of Pub. Safety Officers Ass’n
    862 S.W.2d 785, 791 (Tex. App. 1993), writ
    granted (May 11, 1994), aff’d and remanded,
    897 S.W.2d 757 (Tex. 1995). . . . . . . . . 13

U.S. v. Taylor, 600 F.3d 678 (2010). . . . . .13-15

U.S. v. Salinas-Cano, 959 F2d 861
    (10th Cir.1992). . . . . . . . . . . . . .14-15

Frazier v. Cupp, 394 U.S. 731, 740, (1969). . . .16

Coolidge v. New Hampshire, 403 U.S. 443, (1971). 16




                         iv
STATUES:
United State Constitution
    Fourth Amendment. . . . . . . . . . . . . . .7
    Fifth Amendment. . . . . . . . . . . . . . . 7
    Sixth Amendment. . . . . . . . . . . . . . . 7
    Fourteenth Amendment. . . . . . . . . . . . .7

Texas Constitution
    Article I §9. . . . . . . . . . . . . . . . .7
    Article I §10. . . . . . . . . . . . . . . . 7
    Article I §19. . . . . . . . . . . . . . . . 7

Texas Crim. Proc. Code
    Article 38.23. . . . . . . . . . . . . . . . 7




                         v
                     NO.03-15-00053-CR

                          IN THE

                     COURT OF APPEALS

                THIRD DISTRICT OF TEXAS

                        AT AUSTIN

  *****************************************************

    KEVIN DUANE DRISDALE                    APPELLANT

                             VS.

    THE STATE OF TEXAS                       APPELLEE
    ******************************************************

                     APPELLANT’S BRIEF

                STATEMENT OF THE CASE


    KEVIN    DUANE     DRISDALE,    appellant,    was

charged by indictment in paragraph one with the

offense of possessing, with intent to deliver,

a controlled substance: Cocaine, more than four

grams but less than 200 grams. In paragraph two

of the indictment, a prior conviction for a

similar offense was alleged for enhancement.

(Cl. R. at 4)



                             1
           After      hearing        appellant’s          motion      to

suppress search and arrest; (Cl. R. at 18) the

motion     was       denied      by       the       trial       court.

Appellant then entered a plea of guilty with a

plea agreement to be sentenced to twenty (20)

years    in    the      Texas       Department       of     Criminal

Justice—Institutional               Division.        (Cl.       R.    at

33)(R.R.      VIII      at    25)     Appellant’s         right        to

appeal   his     pre-trial       motion       to    suppress         was

preserved.       (Cl.    R.     at    33)     The    trial          court

followed the plea recommendation and sentenced

appellant      to       twenty        (20)      years          in    the

Institutional Division. (R.R. VIII at 30)

    Appellant’s         trial        lawyer     filed      a    motion

for new trial on January 7, 2015.                       (Cl. R. at

51) The trial court denied the motion on the

same date.       (Cl. R. at 53) A notice of desire

to appeal pro se was filed on January 5, 2015.

(Cl. R. at 43) An amended notice of appeal was




                                      2
filed by appellate counsel with this court on

March 25, 2015.

          STATEMENT REGARDING ORAL ARGUMENT

      Appellant does not request oral argument.

                     ISSUE PRESENTED

      The    trial        court        erred      in        denying

appellant’s       motion    to    suppress        because      the

consent     to    search   given       to   law    enforcement

officers     by    appellant’s         co-tenant        did    not

extend to the contents of the container opened

and viewed by the law enforcement officers and

seized by the law enforcement officers without

a search warrant.



                   STATEMENT OF FACTS

      Appellant proffered that at the time of

his   arrest      there    was    no    warrant        to   arrest

appellant and the State agreed Appellant had

“standing”. (R. R. VII at 5) On August 11, 2013

City of Killeen police officers responded (R.R.



                                  3
VII    at    7)     to    a     911    “hang          up”    call        to   an

apartment         complex       in     Killeen,             Bell     County,

Texas.

       A    female       flagged       the       officers           down.       A

Killeen police officer, Stickles; along with an

officer       in         training,             Hydorn,            were        the

responding         officers.          (R.R.       VII       at     9)     After

verifying         the     female      was       the    caller,           Brenda

Layton. Layton pointed to appellant, who was

standing on a second story walkway. Layton told

officers appellant would run, had drugs and was

on parole. Layton indicated the drugs were kept

in a large brown box. (R.R. VII at 16) Stickles

went up to speak to appellant. (R.R. VII at 11)

Hydorn went to the stairwell and watched to

make       sure    appellant          did       not     run.        Stickles

determined there could be a domestic situation.

Appellant         did     not    try       to    run    or        evade       the

officer.          (R.R.       VII     at        12)     Appellant             was

identified         as     the       person        on        the     walkway.



                                           4
Appellant told the officer there had been a

verbal    argument    with   Layton        and     she   had

misplaced her keys and phone. (R.R. VII at 13)

      Appellant told the officer he leased the

apartment and was allowed to leave to go work

out at a gym. Appellant was believed to have

left the area. (R.R. VII at 14)

      Layton was upset and scared and wanted to

verify appellant had left. She further stated

there had been a verbal argument over the cell

phone    and   appellant   had       interrupted   her   911

emergency call. Stickles went with Layton to

the apartment. (R.R. VII at 15) Layton believed

appellant had her cell phone and keys. Layton

then told the officer appellant had struck her

because of something on her phone. (R.R. VII at

16)

      Stickles asked Layton if she would like

for him to assist her in looking for her phone

in the apartment. She said she was on the lease



                                 5
and    had    a     60     day    notice       to    vacate     the

apartment.         Layton    gave       the    officer       verbal

consent to help her search for her keys and

phone. While looking for the items, Stickles

noticed a brown wooden box (R.R. VII at 17)

Layton had described. It was on the top shelf

of the open closet. Stickles asked if he could

look    in    the    box    and     opened      it     and    found

baggies, razor blades, digital scales and what

he believed, based on his experience, to be

cocaine. (R.R. VII at 18)

       At    about       this     time,        appellant       was

returning to the apartment and Stickles put the

box back on the shelf in the same spot. The

officer then spoke to appellant. (R.R. VII at

19)    It    was    determined      the       reason    appellant

returned was to get his ear phones. He wanted

to get them himself from the bedroom and this

was done. (R.R. VII at 20) Appellant lifted the

mattress and revealed the phone. (R.R. VII at



                                    6
21) Appellant was asked to show what items were

his in the closet and he was vague about what

was   his.   There    was     a   safe    which   appellant

denied was his, but he could state there was

nothing in the safe. (R.R. VII at 22) At that

point, Stickles placed appellant under arrest.

(R.R. VII at 23)

      Appellant’s     counsel          relied     upon   the

pleadings in the motion to suppress for the

basis to suppress the fruits of the search. The

basis   in   the     motion       to   suppress    for   the

granting of the motion was the Fourth, Fifth,

Sixth and Fourteenth Amendments to the United

States Constitution; Art I Sections 9, 10, and

19 of the Constitution of the State of Texas.

(Cl. R. at 19) As well as Article 38.23 Tex.

Crim. Proc. Code. (Cl. R. at 18)

      Upon   denying        appellant’s         motion   to

suppress, the trial court made these findings

verbally on the record:



                                  7
      Layton     and      (appellant)
apparently    both    live   in   the
apartment. The apartment being
leased by (R.R. VII at 86) Layton
and there has been a 911 hang up
call claiming domestic violence,
that   she   detailed     information
regarding interference with 911,
as well as physical assault, and
reportedly        indicated       the
(appellant) was selling drugs and
was on parole and might run and
she was the owner of the apartment
and given consent to search after
explaining that the (appellant)
had taken her keys and her cell
phone and she gave consent to the
police officers to help her look
and search for the keys and cell
phone.
     The trial court further found
the closet to which the box
containing      the     drugs     and
paraphernalia, scales, baggies was
found   in   a   closet    containing
clothing belonging to both Brenda
Layton as well as (appellant) and
that she had given consent as well
for the officer to help her search
for her keys and her cell phone.
     The box was returned to the
shelf when apparently the recruit
and (appellant) came back in to
the apartment but the drugs had
already been discovered with the
consent, (appellant) was arrested
at that point for the interference
after providing the cell phone
which    was   hidden     under   the
mattress, was arrested for the


                  8
          interference with the 911, and
          apparently    then     the    drug
          possession      following      the
          discovery.
              The trial court found there
          was consent for the search which
          was actually being given to find
          keys and cell phone and certainly
          [sic] was discovered. So the court
          is going to deny the motion to
          suppress. (R.R. VII at 87)


               SUMMARY OF THE ARGUMENT

    The   State      failed   to       prove    by    clear   and

convincing evidence the co-tenant of appellant

had common authority to authorize the opening

of the container attributed to appellant or to

the seizure of the contents without a warrant.

                        ARGUMENT

                    STANDARD OF REVIEW

    At    a   hearing    on    a       motion    to    suppress

evidence,     the    trial    court      is     the   sole    and

exclusive trier of fact and the judge of the

credibility of witness testimony. Review of the

trial court's ruling on a motion to suppress is

under a bifurcated standard of review, giving


                                   9
almost   total    deference    to    the   trial   court's

determination of historical facts and reviewing

de novo the court's application of the law.

(citations omitted) Malone v. State, 163 S.W.3d

785, 795 (Tex. App. 2005) The Texas Court of

Criminal Appeals has repeatedly held the State

to a standard of clear and convincing evidence

when attempting to show the voluntariness of a

consent to search. State v. Ibarra, 953 S.W.2d

242, 243 (Tex. Crim. App. 1997)

      The important issues before the court are:

Did   co-tenant    Layton     have   the   authority   to

consent to the opening of the brown box, and

the seizure of the contents, and has the State

shown this authority by clear and convincing

evidence?

      In U.S. v. Matlock, 415 U.S. 164 (1974)

the United State Supreme Court recognized the

voluntary consent of a joint occupant to search

the premises jointly occupied is valid against



                               10
the co-occupant, permitting evidence discovered

in the search to be used against him in the

criminal   trial.    Matlock,         supra.   pp.     169   The

stated purpose of law enforcement officers in

seeking permission to search from the Matlock’s

co-occupant was to look for money and a gun, as

evidence in a bank robbery prosecution. A sum

of money was found in a diaper bag in a closet

jointly used by both parties; the consenting

party   and    Matlock.    The    Supreme       Court    never

addressed the issue of did the co-occupant’s

consent extend to the diaper bag. Since the co-

occupant was holding a small child in her arms

when she gave consent, it might be clear she

had access and a possessory interest in the

diaper bag.

    A   co-tenant        who     has     an    interest      in

bringing      criminal    activity       to    light    or    in

deflecting suspicion from himself can, e.g.,

tell the police what he knows, for use before a



                                 11
magistrate    in   getting      a     warrant.   Georgia     v.

Randolph, 547 U.S. 103, 104, (2006)

      Once Layton, as a named “informant” told

Stickles about the contents of the brown box; a

proper search warrant could have been obtained.

Information     from     a   named     informant,    and    the

magistrate could find the information recent

and   detailed     enough       to     suggest      that    the

informant had direct knowledge sufficient for a

probable cause determination. Rivas v. State,

446 S.W.3d 575, 580 (Tex. App. 2014), on remand

from pdr, reh'g overruled (Oct. 30, 2014)

      As far back as 1970 it was noted state

courts are not bound by ruling of lower federal

courts   on   Federal        Constitutional       questions,

both state and federal courts being of parallel

importance in deciding such questions, and both

answer to the Supreme Court on direct review.

United   States    ex    rel.    Pruett    v.    State,     463

S.W.2d   191,      194       (Tex.     Crim.     App.      1970)



                                 12
Decisions of the federal courts of appeals and

district      courts      do       not      bind     Texas   courts

although      they      are       received      with    respectful

consideration. Denton v. Texas Dep't of Pub.

Safety      Officers     Ass'n,          862   S.W.2d     785,   791

(Tex. App. 1993), writ granted (May 11, 1994),

aff'd and remanded, 897 S.W.2d 757 (Tex. 1995)


      The United States Court of Appeals for the

Sixth Circuit decided U.S. v. Taylor, 600 F.3d

678 (2010) based on very similar facts to the

case sub judice. There the tenant, Arnett, gave

permission         to   search        the      apartment.     While

conducting this search, a shoebox was opened

and   the     contents,       a    handgun      and    ammunition,

were seized by law enforcement officers. Taylor

was not a co-tenant, but was allowed to store

items    in    a    spare      room      by    the     tenant.   The

shoebox was in a closet along with Taylor’s

clothing. U.S. Court of Appeals reasoned the

expectation of privacy in one’s luggage is not


                                      13
lessened by storing on the premises of a third-

party. Rather, the expectations may well be at

their    most    intense          when    such       effects       are

deposited temporarily or kept semi-permanently

in places under the general control of another.

A shoebox is not “luggage” but it is an often-

used storage container.                  (Taylor, supra. pp.

682-684) In United States v. Salinas-Cano, 959

F.2d    861    (10th    Cir.1992),        the       Tenth       Circuit

suppressed the results of a search of luggage

that    Cano     had     left       at        his     girlfriend's

apartment, even though she had given the police

specific       consent       to     search          the     luggage.

(Salinas-Cano,         959   F.2d        at    862)       The    Sixth

Circuit in Taylor noted several factors that

the Tenth Circuit took into consideration in

Cano: (1) the type of container and whether

that    type    “historically            command[ed]        a     high

degree of privacy,” (2) whether the container's

owner    took    any     precautions           to     protect      his



                                    14
privacy,     (3)     whether       the      resident           at     the

premises initiated the police involvement, and

(4)   whether      the    consenting          party    disclaimed

ownership     of     the       container.        Id.       at       864.

Applying     these       factors      the      search          of     the

suitcase    unlawful        because      it    was     a       type   of

container       long        associated          with           privacy

expectations, Cano had ... never permitted his

girlfriend to look inside the suitcase, he had

not    abandoned         the     suitcase        but           instead

maintained      a        periodic        presence          in         the

apartment, and the law enforcement agents had

not   questioned         his    girlfriend       in        a    manner

sufficient to determine whether she had mutual

use of the Cano's suitcase.


      Appellant      will      concede        Layton       had        the

authority to admit the police officers to the

apartment and to conduct a search for her phone

and keys; but there is nothing in the record of

the hearing on appellant’s motion to suppress


                                   15
to show Layton had mutual use and/or authority

to allow the officers to open the brown box,

much less consent to the seizure the contents

without a warrant.


       The   Supreme      Court        of    the     United       States

noted    that       their     prior         recognition         of    the

constitutional           validity            of      ‘third          party

consent’       searches      in    cases          like    Frazier      v.

Cupp, 394 U.S. 731, 740, (1969) and Coolidge v.

New Hampshire, 403 U.S. 443, (1971), supported

the view that a consent search is fundamentally

different in nature from the waiver of a trial

right. These cases at least make clear that

when     the    prosecution            seeks       to      justify      a

warrantless         search        by    proof        of        voluntary

consent,       it   is      not    limited         to     proof      that

consent was given by the defendant, but may

show    that    permission         to       search       was   obtained

from     a     third     party         who     possessed          common

authority over or other sufficient relationship


                                       16
to   the     premises      or    effects       sought       to    be

inspected. United States v. Matlock, 415 U.S.

164, 171-72, (1974)


     While      Layton    may    have        possessed      common

authority       over     the    premises,       there       is    no

showing    in    this    record      that     she    had    common

authority over the brown box to consent to the

search and seizure of the brown box, a closed

container.      While    the    officers,       based      on    the

information      from    Layton,       may    have    had    ample

authority to obtain a search warrant by acting

on that information from Layton, they did not.


     Because the State has failed to show by

clear and convincing evidence the authority for

Layton     to     consent       to     the      opening          and,

ultimately, the seizure of the brown box and

its contents; appellant’s motion to suppress

should have been granted. The trial court erred

in failing to do so.




                                  17
                      PRAYER


    Wherefore, premises considered, appellant

prays the Court of Appeals reverse the trial

court’s denial of his motion to suppress and

remand this case to the trial court and for any

other   relief   to   which     appellant   may   be

entitled.



                              Respectfully submitted,


                              /s/ James H. Kreimeyer
                              James H. Kreimeyer
                              Counsel for Appellant
                              P.O. Box 727
                              Belton, TX 76513
                              254-939-9393 Fax:939-2870
                              TSB#11722000
                              jkreime@vvm.com




                          18
                  CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief complies with

the length limitations of Texas Rule of Appellate

Procedure    9.4(i)(3)     because       this    brief   contains

2,266    words,    excluding      the    parts    of    the   brief

exempted    by     Texas   Rule     of   Appellate       Procedure

9.4(i)(1); a number which is less than the 15,000

words allowed under Rule 9.4(i)(2)(B).

      I also certify that this brief complies with

the     typeface    requirements         of     Texas    Rule   of

Appellate Procedure 9.4(e) because this brief has

been written with a conventional typeface using a

14-point font (with footnotes no smaller than 12-

points) using Microsoft Office Word 2010 (version

14), in Courier New font.


                                  /s/ James H. Kreimeyer
                                  JAMES H. KREIMEYER




                               19
    CERTIFICATE OF SERVICE TO OPPOSING COUNSEL

    This is to certify a true copy of the foregoing

Appellant’s     Brief   was    furnished   to   Bob   Odom

Assistant District Attorney for Bell County, P.O.

Box 540, Belton, Texas 76513 on the 24th day of

August, 2015.


                               /s/ James H. Kreimeyer
                               JAMES H. KREIMEYER




        CERTIFICATE OF SERVICE TO APPELLANT

    This is to certify a true copy of the brief,

served to Appellant, Kevin Duane Drisdale, James

Bradshaw State Jail, P.O. Box 9000, Henderson, TX

75653 on the 24th day of August, 2015.

                               /s/ James H. Kreimeyer
                               JAMES H. KREIMEYER




                              20
