                                                                             PD-0407-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 5/25/2015 2:37:50 PM
                                                            Accepted 5/26/2015 10:51:44 AM
                                                                             ABEL ACOSTA
                      NO. PD-0407-15                                                 CLERK

      IN THE COURT OF CRIMINAL APPEALS OF TEXAS



    CESAR ADOLFO ROCHA-MORENO, Petitioner/Appellant,

                            v.

         THE STATE OF TEXAS, Respondent/Appellee.


CORRECTED PETITION FOR DISCRETIONARY REVIEW
         BY PETITIONER/APPELLANT

    ON APPEAL FROM THE FIRST COURT OF APPEALS’ JUDGMENT
          AND OPINION IN CASE NO. 01-13-00897-CR

                TRIAL COURT CAUSE NO. 1914250
         IN THE COUNTY CRIMINAL COURT AT LAW NO. 1
                    HARRIS COUNTY, TEXAS

                                 John M. Bray, Esq.
                                 Texas Bar No. 24081360
                                 Counsel for Petitioner/Appellant
                                 OOSTERHOF & BRAY, PLLC
                                 1910 Pacific Ave., Ste. 15550
   May 26, 2015                  Dallas, Texas 75201
                                 Tel: (214) 550-4664
                                 Fax: (214) 550-4654
                                 Email: john@oblawfirm.com



                  ORAL ARGUMENT REQUESTED
          IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL

        Pursuant to Tex. R. App. Pro. 38.1(a) and 68.4(a), the following is a complete
list of the names and addresses of all parties to the trial court’s final judgment, their
trial counsel, and their appellate counsel.

APPELLANT                                       Cesar Adolfo Rocha-Moreno

Trial Counsel & Appellate Counsel               John M. Bray
                                                SBN 24081360
                                                1910 Pacific Ave., Suite 15550
                                                Dallas, Texas 75201

Appellate Co-Counsel                            Melissa M. Oosterhof
                                                SBN 24079946
                                                1910 Pacific Ave., Suite 15550
                                                Dallas, Texas 75201

APPELLEE                                        Hon. Devon Anderson
State of Texas                                  Harris County District Attorney
                                                Harris County Criminal Justice Center
                                                1201 Franklin Street, Suite 600
                                                Houston, Texas 77002

Trial Counsel                                   Maritza A. Glenn
                                                SBN 24075493
Trial Co-Counsel                                Cara E. Burton
                                                SBN 24068399

Appellate Counsel                               Alan K. Curry
                                                SBN 05263700
Appellate Counsel                               David C. Newell
                                                SBN 00000018

TRIAL JUDGE                                     Hon. Paula Goodhart
Harris County Criminal                          1201 Franklin Street, 8th Floor
Court at Law No. 1                              Houston, Texas 77002

                                            i
                                          TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Facts of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

    I.        Grounds for Review Numbers One & Two . . . . . . . . . . . . . . . . . . . . . . . . 2

              Ground One: The Court of Appeals erred when it affirmed the trial
              court’s denial of Appellant’s suppression motion without finding
              what constitutes a “high-crime area” and without remanding to
              determine whether Appellant was detained within a “high-crime”
              area.

              Ground Two: Even if Appellant was detained in a high-crime area,
              his sitting in a running vehicle, without more, amounts to mere
              presence in a high-crime area and does not give rise to reasonable
              suspicion.

         A. Summary of the Argument – First and Second Grounds for Review . . . . . 2

         B. Argument & Authorities – First and Second Grounds for Review . . . . . . 3

              1. The Court of Appeals Erred in Applying the Standard for
                 “Reasonable Suspicion” Instead of “Consensual Encounters” . . . 3

                                                              ii
              2. Even If the Area Was a High-Crime Area, Reasonable Suspicion
                 Still Did Not Exist Because Appellant Was Merely Present in a
                 Purportedly High-Crime Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
              3. Because the Court of Appeals Incorrectly Concluded Reasonable
                 Suspicion Existed, It Erroneously Concluded the Detaining Officer
                 Had Probable Cause to Arrest Rocha . . . . . . . . . . . . . . . . . . . . . . . 11
              4. The Correct Standard of Review Was That Governing Consensual
                 Encounters, Because Detention Was Not Justified . . . . . . . . . . . . . 14
          C. Conclusion – First and Second Grounds for Review . . . . . . . . . . . . . . . . 16

    II.       Ground for Review Number Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

              Ground Three: The Court of Appeals erroneously affirmed the trial
              court’s denial of Appellant’s request for an article 38.23 jury
              instruction regarding whether the area in which Appellant was
              detained was a high-crime area.

    A. Summary of the Argument – Third Ground for Review . . . . . . . . . . . . . . . 16

    B. Argument & Authorities – Third Ground for Review . . . . . . . . . . . . . . . . . 17

    C. Conclusion – Third Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Compliance and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Appendix




                                                               iii
                                    INDEX OF AUTHORITIES

Federal Cases

Brown v. Texas, 443 U.S. 47 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Florida v. Bostick, 501 U.S. 429 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 15

Florida v. J.L., 529 U.S. 266 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) . . . . . . . . . . . . . 5, 6

Illinois v. Wardlow, 528 U.S. 119 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7, 9, 11

Michigan v. Chestnut, 486 U.S. 567 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Terry v. Ohio, 392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

United States v. Mendenhall, 446 U.S. 544 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Soares, 521 F.3d 117 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Wright, 582 F.3d 199 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 5, 9

Texas Cases

Amorella v. State, 554 S.W.2d 700 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . 10

Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . 18

Cronin v. State, 2005 Tex. App. LEXIS 10450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gurrola v. State, 877 S.W.2d 300 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . 7

Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . 7

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . 3

Hernandez v. State, 376 S.W.3d 863 (Tex. App.—Fort Worth 2012) . . . . . . . . . . . . 15

Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . 17


                                                       iv
Jordan v. State, 394 S.W.3d 58 (Tex.App.—Houston [1st Dist.] 2012) . . . . . . 12, 13

Klare v. State, 76 S.W.3d 68 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d) . . . 8

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . 17

Parker v. State, 206 S.W.3d 593 (Tex.Crim.App.2006) . . . . . . . . . . . . . . . . . . . . . 13

Scott v. State, 549 S.W.2d 170 (Tex. Crim. App. 1976) . . . . . . . . . . . . . . . . . . . . . . 8

Shaffer v. State, 562 S.W.2d 853 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . 8

State v. Garcia-Cantu, 253 S.W.3d 236 (Tex.Crim.App.2008) . . . . . . . . . . . . . . . . 15

State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . 4

Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . 4

Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . 4

Texas Statutes / Codes

TEX. CODE OF CRIM. PROC., art. 38.23 . . . . . . . . . . . . . . . . . . . . . . . . . . iii, viii, 16-18

TEX. PEN. CODE § 481.121(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Texas Rules

Tex. R. App. Proc. 38.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Tex. R. App. Proc. 49.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Tex. R. App. Proc. 49.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Tex. R. App. Proc. 68.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Constitutional Provisions

U.S. CONST., amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim



                                                          v
              STATEMENT REGARDING ORAL ARGUMENT

      Because of the significance and complexity of the issues, particularly the

question of a “high-crime area,” as well as the difficulty encompassed in explaining

the physical, positional relationship between the detaining officer and Appellant

leading up to the detaining officer’s detention of Appellant, the undersigned believes

that oral argument would benefit the parties and Assist the Court. Appellant

therefore respectfully requests the opportunity to present oral argument in this case.

                          STATEMENT OF THE CASE

      Appellant was convicted of possession of marihuana. Prior to trial, Appellant

sought the court to grant a pretrial motion to suppress, which the trial court carried

with trial. The suppression motion, and this Petition, focuses on the proper definition

of a “high-crime area” and concerns whether Appellant’s mere presence in a running

vehicle in a high-crime area can give rise to reasonable suspicion to detain.

Significantly, no court having jurisdiction over this matter has defined the term

“high-crime area,” so if this decision is allowed to stand, it will have far-reaching

consequences that conflict with United States Supreme Court precedent.

                 STATEMENT OF PROCEDURAL HISTORY

      Appellant was charged by information with the offense of Possession of

Marihuana, 2 to 4 ounces, a Class A Misdemeanor offense under Texas Penal Code


                                          vi
§ 481.121(b)(2), in Cause No. 1658777 in County Criminal Court at Law No. 1 of

Harris County, Texas. Under the advice of then-counsel, Appellant pleaded guilty to

the offense charged on April 19, 2010 to obtain a reduced sentence of 30 days in jail.

      On the date of trial, the State was not prepared to proceed to trial, so it

dismissed the offense on August 20, 2013 and immediately refiled this offense by

information in Cause No. 1914250 on the same day, August 20, 2013.

      A jury convicted Cesar Adolfo Rocha-Moreno of the offense as charged. 5

R.R. 215. The jury assessed Rocha’s punishment at 270 days in the Harris County

Jail. 6 R.R. 37. The Honorable Paula Goodhart, presiding judge of the County

Criminal Court at Law No. 1 of Harris County, sentenced Rocha accordingly, giving

106 days credit for time served. 6 R.R. 38-39. Rocha timely filed a notice of appeal.

      Appellant’s appeal was dismissed in a memorandum opinion issued on

October 16, 2014 by a Panel of the First Court of Appeals consisting of Justices

Higley, Bland, and Sharp. Appellant’s deadline for filing a motion for

reconsideration en banc pursuant to Tex. R. App. Proc. 49.7 was October 31, 2014,

as the Court of Appeals’ judgment and order issued on October 16, 2014. Appellant

timely filed a motion pursuant to Tex. R. App. Proc. 49.8 requesting an extension of

time to file the present Motion for Reconsideration En Banc, which motion was

granted, extending the filing deadline to November 10, 2014, on which date

                                         vii
Appellant filed a Motion for Reconsideration En Banc. On March 12, 2015, a

three-judge panel of the First Court of Appeals denied Appellant’s motion for

rehearing en banc, affirmed the judgment of the trial court, but it withdrew its

opinion and judgment issued October 16, 2014 and issued a published opinion and

judgment in their stead. Rocha v. State, No. 01-13-00897-CR (Tex.App.—Houston

[1st Dist.] March 12, 2015). By previous Order of this Court, the instant “Petition for

Discretionary Review” is timely filed if presented to the Clerk of the Court on or

before May 13, 2015.

                            GROUNDS FOR REVIEW

   1. The Court of Appeals erred when it affirmed the trial court’s denial of

      Appellant’s suppression motion without finding what constitutes a

      “high-crime area” and without remanding to determine whether Appellant

      was detained within a “high-crime” area.

   2. Even if Appellant was detained in a high-crime area, his sitting in a running

      vehicle, without more, amount to mere presence in a high-crime area and does

      not give rise to reasonable suspicion to detain.

   3. The Court of Appeals erroneously affirmed the trial court’s denial of

      Appellant’s request for an article 38.23 jury instruction regarding whether the

      area in which Appellant was detained was a high-crime area.


                                         viii
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

      COMES NOW Cesar Adolfo Rocha-Moreno (hereinafter “Rocha”),

Appellant herein, by and through his undersigned attorneys, and respectfully

submits this Corrected Petition for Discretionary Review. In support of thereof,

Appellant would show unto the Court as follows:

                             FACTS OF THE CASE

      On the evening of February 4, 2010, Rocha was arrested in southwest

Houston for Possession of Marijuana. 5 R.R. 77. Rocha was sitting in his parked

vehicle, a blue Ford Expedition, waiting for his friend Brian Matthews to come greet

him. 5 R.R. 77-78. Rocha was not alone, as two friends, Troy Greer and Tristan

Greer, were also sitting in the vehicle. 5 R.R. 78; see also 5 R.R. 94. Sometime

around 8:30 p.m., after having been merely present for around five minutes, two

men approached the vehicle—one of them knocked on the driver’s side window

with his gun drawn. 5 R.R. 78-79. Everyone inside the vehicle initially thought they

were about to be robbed. See 5 R.R. 82; see also 5 R.R. 96.

      One of the men who approached the vehicle was the detaining officer, J.P.

Cruz, of the Houston Police Department. 5 R.R. 97. The other man, described as

African-American, remained unidentified. 5 R.R. 97-98. Officer Cruz was wearing a

police “attack vest” that read “Houston Police,” along with blue pants and a “beanie

                                         1
cap,” due to cold weather. 4 R.R. 29. Officer Cruz was on foot, as his car was parked

in front of the apartment leasing office. 4 R.R. 34.

        Officer Cruz testified he had seen drug dealers enter the apartment complex in

their vehicles that they would leave running, since the drug dealers “would not be

there for very long.” 4 R.R. 34-36. After seeing Rocha’s vehicle parked in the

apartment parking lot for about five to ten minutes, the officer then decided to

approach Rocha’s vehicle—with his gun drawn. 4 R.R. 39, 40. The officer engaged

in what he termed a “consensual encounter”—it was not until trial that the officer

claimed Rocha was suspicious because he was in a parked, running vehicle for about

five to ten minutes in what the officer deemed a “high crime area.” 5 R.R. 42-43.

        Reasoning the officer had reasonable suspicion due to Rocha’s sitting in a

parked, running vehicle in a high-crime area, the trial court denied Rocha’s

suppression motion. Rocha’s trial counsel requested various jury instructions,

including an instruction concerning whether the area in which Rocha was detained

amounted to a high-crime area, but the trial court denied this request upon deeming

the issue was allegedly not contested.

                                    ARGUMENT

   I.      GROUNDS ONE AND TWO

        A. Summary of the Argument

                                           2
      Appellant would respectfully contend the Court of Appeals did not apply the

appropriate standard of review—concerning consensual encounters—and instead

applied the incorrect standard of review—reasonable suspicion to justify an

investigatory detention. The officer did not have reasonable suspicion to detain

Appellant, because Appellant was not found in a high-crime area. However, even

assuming arguendo the area is one that may be characterized as high in crime, the

officer’s investigatory detention of Appellant is still not justified, because it

ostensibly rests on little more than Rocha’s mere presence in a purportedly

high-crime area. Because the Court of Appeals applied the incorrect standard, it

likewise erred in concluding probable cause existed when Appellant’s unjustified

detention enabled the officer to smell marijuana.

      B. Arguments and Authorities
           1. The Court of Appeals Erred in Applying the Standard for
              “Reasonable Suspicion” Instead of “Consensual Encounters”

Even the Officer and the Prosecution Believed the Detaining Officer Was
Engaging Appellant in Consensual Encounter

      Appellant contends the Court of Appeals erroneously upheld the trial court’s

denial of Appellant’s motion to suppress Appellant’s unjustified detention by

misconstruing the law as it applied to the facts of Appellant’s case. Court of Appeals

Opinion (“Ct. App. Op.”) at 12. Although appellate courts give great deference to

trial court findings of historical facts, Guzman v. State, 955 S.W.2d 85, 89 (Tex.
                                          3
Crim. App. 1997), reviewing courts should only sustain trial court rulings if they are

reasonably supported by the record. Willover v. State, 70 S.W.3d 841, 845 (Tex.

Crim. App. 2002).

      Encounters between law enforcement and citizens are classified into three

categories: (1) consensual encounter, (2) investigatory detentions, and (3) arrests.

State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011). Under the law

of search and seizure, the reasonable suspicion standard governs the second

category—“brief detentions which falls short of being fullscale searches and

seizures.” Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). In Illinois v.

Wardlow, 528 U.S. 119, 123-24 (2006), the United States Supreme Court instructed

that where a police officer’s detention of a suspected criminal is not justified, “the

individual has the right to ignore the police and go about his business.” Thus, if the

officer approached Rocha without reasonable suspicion or probable cause, Rocha

was free to ignore the detaining officer. Compare id. at 125 (regarding implications

of lack of reasonable suspicion), with 4 R.R. 37 (officer testified he wanted to

engage Rocha in consensual encounter to find out why he and passengers were in

vehicle), and 4 R.R. 40 (officer testified “I began a consensual encounter with them

[Rocha and his passengers], simply asked what he was doing there.”).

      Clearly, the officer’s suspicion was no more than the “inchoate and

                                          4
unparticularized suspicion or ‘hunch’ of criminal activity” prohibited by Terry. See

Illinois v. Wardlow, 528 U.S. at 123-24, citing Terry v. Ohio, 392 U.S. at 27.

Furthermore, even the prosecution did not initially argue the officer had reasonable

suspicion, but rather that it was a consensual encounter, until they were ostensibly

guided to this argument by the trial court. 5 R.R. 189.

Geographic Area Where Appellant Was Detained Was Too Broad in Scope to
Comprise a “High-Crime Area” Reliably Predictive of Future Criminality

      Undersigned Counsel could not find any Texas legal precedents from any

courts having jurisdiction over Rocha’s case that precisely define what amounts to a

“high-crime area.” However, where an officer testifies that an area is one of

expected criminal activity based on the officer’s experience, the trial court should

not draw inferences about the character of the area based on the officer’s

“experience and expertise” unless the officer expressly so testifies. United States v.

Wright, 582 F.3d 199, 207 (1st Cir. 2009). Indeed, it is the task of appellate courts to

eschew such illations where not properly supported, but here, the Court of Appeals

did just the opposite. See id.

      Indeed, the Court of Appeals erroneously upheld the trial court’s

determination that the area in question was a high-crime area, even though the area

purported to be a “high-crime area” includes a questionably large area of southwest

Houston. See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 578 (S.D.N.Y.
                                           5
2013) (observed that the term “‘High-Crime Area’ is also of questionable value

when it encompasses a large area or an entire borough, such as Queens or Staten

Island.”). If this Court grants discretionary review, Appellant would urge the Court

to define a “high-crime area” just as it would any other factor that may contribute to

a finding of reasonable suspicion; whether an area is a “high-crime area” should turn

on whether it is so limited in geographical scope as to afford future predictive value

to law enforcement. Compare Alabama v. White, 496 U.S. 325, 329, 332 (1990)

(reasonable suspicion justified where based on anonymous tip predicting

defendant’s behavior that could be independently verified), with Florida v. J.L., 529

U.S. 266, 270, 274 (2000) (reasonable suspicion did not exist where anonymous tip

could not be suitably corroborated by indicia of reliability to have predictive value).

      Appellant    would     contend    the    area   described   by    the   detaining

officer—southwest Houston—comprises too expansive a geographic area too retain

sufficient predictive value for the incidence of future criminality. See 4 R.R. 20

(officer’s description of high-crime area as essentially comprising all of southwest

Houston); see also 5 R.R. 77 (description of allegedly “high-crime area” where

Rocha detained). Compare Floyd v. City of New York, 959 F. Supp. 2d 578

(description of geographical area as high-crime area of questionable value where it

is too expansive), with 4 R.R. 20 (officer testified as follows: “[T]here are a few high

                                           6
crime areas that you may see on the TV a lot and that’s pretty much where I am at.

That would include South Braeswood, Grand Park Gulf and Grandmont, Grand

Parkway, Harwin. People may be familiar with that being Southwest Houston.”).

             2. Even If the Area Was a High-Crime Area, Reasonable
                Suspicion Still Did Not Exist Because Appellant Was Merely
                Present in a Purportedly High-Crime Area

The Court of Appeals’ Decision Conflicts with Texas and Federal Precedent

      The Court of Appeals’ erred in concluding the officer had reasonable

suspicion to detain Rocha, since the officer’s “specific, articulable facts” as required

by Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011), consisted

only of Rocha’s waiting in a running vehicle for several minutes in what the officer

deemed to be a high-crime area. See Ct. App. Op. at 11.

      For, even assuming arguendo that this area was not impermissibly broad or

was actually an area of expected criminal activity, this assemblage of factors is no

more indicative of criminality than Rocha’s mere presence in a high-crime

area—something this Court and the Supreme Court have explicitly prohibited. See

Illinois v. Wardlow 528 U.S. 119, 124-25 (2006) (accused’s mere presence in

high-crime area insufficient to give rise to reasonable suspicion to detain); accord

Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (no reasonable

suspicion where suspects were arguing, as mere presence in high-crime area

                                           7
insufficient to justify detention); Shaffer v. State, 562 S.W.2d 853, 854 (Tex. Crim.

App. 1978) (no reasonable suspicion where taxi driving slowly in commercial lot of

closed businesses at night); Scott v. State, 549 S.W.2d 170, 172-173 (Tex. Crim.

App. 1976) (despite high-crime area, no reasonable suspicion where only other

factors were awareness of thefts in nearby apartments, black males driving Cadillac

at 1:30 a.m., and observation of sheeting material in car’s back seat); Klare v. State,

76 S.W.3d 68, 77 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d) (no reasonable

suspicion where truck parked in lot of closed strip at 2:00 a.m., despite high-crime

area). Of course the engine of Rocha’s vehicle was running—it was early February

and apparently cold, as even the detaining officer was wearing a “beanie.” 4 R.R. 29.

      In this regard, the Court of Appeals erred in concluding the officer had

reasonable suspicion based upon his testimony that Rocha was in a “high-crime

area” while in a mobile vehicle. However, the officer conceded that effectively the

only reason he approached Rocha’s vehicle was because he was present in a running

vehicle in an area purportedly “known to be high in criminal narcotic activity.” 5

R.R. 41-43. Yet, the fact that crime is more likely in one geographical area than

another does not, by itself, satisfy the standards required for an interrogatory stop.

United States v. Brignoni-Ponce, 422 U.S. 873, 882, 886 (1975); see also Brown v.

Texas, 443 U.S. 47 (1979) (same).

                                          8
      Indeed, Supreme Court precedent, which clearly prohibits such detentions,

instructs that mere presence in an area of expected criminal activity is never enough

to justify an investigatory detention, but rather, courts should consider this in the

totality of the circumstances along with other factors, such as time of day or night,

unprovoked flight from a uniformed police officer, unusual behavior, or a

progression of these and related factors. See, e.g., Illinois v. Wardlow, 528 U.S. at

124-25 (factors included unprovoked flight); see also United States v. Soares, 521

F.3d 117, 120-21 (1st Cir. 2008) (factors included unusual behavior); United States

v. Wright, 582 F.3d 199, 213 (1st Cir. 2009) (progression of factors). Additionally,

decisions from multiple Texas appellate courts indicate that factors even less

innocuous than those present in Rocha’s case do not justify detention where

presence in a high-crime area is a factor. See, e.g., Cronin v. State, 2005 Tex. App.

LEXIS 10450, 20-21 (observing reasonable suspicion based on presence in

high-crime area amounts to speculation unless evidence shows defendant’s

“activities are similar in time, place, and performance” to previous crime).

The Court of Appeals’ Decision Overlooks the Absence of Important Factors
Necessary to a Finding of Reasonable Suspicion to Detain Rocha

      Furthermore, the Court of Appeals committed legal error in concluding that

the officer recited specific, articulable facts. Ct. App. Op. at 11. According to the

Court of Appeals, these factors—“the passengers and driver waited in the car for
                                          9
several minutes at a location where he previously had observed narcotics activity,

without turning off their car engine or lights or exiting the car”—gave rise to

reasonable suspicion justifying Rocha’s detention. Id. However, where this Court

has considered similar factors in concluding that reasonable suspicion existed in

other cases, it was only in combination with other, more suspicious factors. Amorella

v. State, 554 S.W.2d 700, 701-702 (Tex. Crim. App. 1977) (vehicle parked in

high-crime area with lights on and motor running, in combination with defendant’s

furtive movements, gave rise to reasonable suspicion).

      In Amorella, this Court held that in addition to the aforementioned factors, the

suspects exhibited a furtive demeanor—there, a suspect who was standing outside

the parked vehicle closed the trunk, got in the car, and started driving away after

seeing the police officer—unlike Rocha, who exhibited no such behavior. Compare

id. at 702, with 5 R.R. 39-43. Moreover, the defendant in Amorella was detained

around 1:30 a.m., whereas Rocha was detained at approximately 8:30 p.m., and

indeed, the officer never even mentioned the time of detention as a factor justifying

Rocha’s detention. 5 R.R. 39-43 (observe line of questioning in which detaining

officer testified that the only factors he considered before detaining Rocha were

motor running, lights were on, and presence in area where officer had previously

observed criminal activity).

                                         10
      In other words, Rocha and his friends were merely present in a “high-crime

area,” even if the area could be characterized as high in crime. Compare id.

(defendant’s mere presence in running vehicle in purportedly high-crime area as

justification for detention) with Illinois v. Wardlow, 528 U.S. 124-25 (mere presence

in high-crime area cannot per se give rise to reasonable suspicion to justify

detention). Even with this testimony, at no point time did the officer articulate that

he had any belief Rocha or the passengers in his vehicle were involved, were about

to be involved, or had been involved in any type of criminal activity prior to making

contact with Rocha’s vehicle. 4 R.R. 37.

             3. Because the Court of Appeals Incorrectly Concluded
                Reasonable Suspicion Existed, It Erroneously Concluded the
                Detaining Officer Had Probable Cause to Arrest Rocha

      The Court of Appeals’ March 12, 2015 opinion reached a conclusion

inconsistent with relevant Federal and State precedent when it concluded the officer

necessarily had probable cause after smelling marijuana. Ct. App. Op. at 11-12.

Specifically, the Court of Appeals based its conclusion of probable cause on the

premise the officer had established reasonable suspicion to detain Rocha and his

passengers and, in the Court of Appeals’ view, it was thus irrelevant whether the

officer smelled marijuana emanating from Rocha’s car before or after Rocha exited

the vehicle. Ct. App. Op. at 11-12. However, this is of crucial importance—for, if

                                           11
the officer did not have reasonable suspicion to detain Rocha, then he likewise could

not develop probable cause to arrest Rocha, unless he smelled marijuana before

detaining Rocha. Terry v. Ohio, 392 U.S. 1, 27, 30 (1968).

      Appellant asserted and continues to assert that his detention by Officer Cruz

commenced only after the officer had already approached Rocha’s vehicle with

flashlight in hand and weapon drawn and initiated the detention of Rocha. 5 R.R.

184. Stated otherwise, the Court of Appeals erred in that it first should have

considered whether reasonable suspicion existed, and then only if there was

reasonable suspicion, determine whether probable cause existed. Terry v. Ohio, 392

U.S. at 25. Otherwise, the Court of Appeals should have concluded the officer’s

actions, including approaching Rocha’s vehicle in an intimidating manner indicative

of a show of authority, constituted an unlawful detention violating the Fourth

Amendment. See Florida v. Bostick, 501 U.S. 429, 446 (1991) (held intimidating

show of force renders encounter non-consensual).

Appellant’s Case Is Distinguishable From Cases Cited by Court of Appeals

      Citing to Jordan v. State, the Court of Appeals observes that the odor of burnt

marijuana wafting out of a vehicle gives rise to probable cause to search a vehicle’s

occupants and seize contraband contained in the vehicle. See Ct. App. Op. at 10, 12,

14 (citing Jordan v. State, 394 S.W.3d 58, 64 (Tex.App.—Houston [1st Dist.] 2012),

                                         12
which in turn cites Parker v. State, 206 S.W.3d 593, 597 n. 11

(Tex.Crim.App.2006)).

      However, the Court of Appeals’ reliance on Jordan v. State and related cases

is misplaced, as it is distinguishable from this case. The windows of Rocha’s vehicle

were completely rolled up, whereas the defendant in Jordan rolled down his

vehicle’s windows and greeted the detaining officers. Compare Jordan, 394 S.W.3d

at 62, 63 (regarding windows), with 5 R.R. 15 (officer does not “remember exactly

when [Rocha] rolled [the window] down all the way”). Additionally, testimony

elsewhere supports the assertion that Rocha’s windows remained rolled up at all

times before his detention. 5 R.R. 95. Likewise, Parker concerned a defendant

whose windows were rolled down. Parker v. State, 206 S.W.3d at 597. A fortiori, the

officers in Jordan did not even draw their weapons or activate their emergency

lights, whereas the detaining officer in Rocha’s case conceded he held his weapon

drawn upon approaching Rocha’s vehicle. Compare Jordan, 394 S.W.3d at 62 (no

show of force by officers greeted by defendant), with 5 R.R.18-19 (detaining officer

admitted to drawing his weapon and holding flashlight prior to approaching Rocha’s

vehicle).

      Furthermore, both the Court of Appeals and trial court erroneously concluded

that whether a detention had occurred is irrelevant to Fourth Amendment analysis,

                                         13
especially if the detaining officer smells marijuana upon approaching Rocha’s

vehicle. Cf. Ct. App. Op. at 13-14 (Court of Appeals determined when officer

smelled marijuana is irrelevant, as long as the officer’s initial justification for

detaining Rocha was justified), with 5 R.R 192-93 (discussing trial court’s findings).

Even the State did not argue the officer smelled the marijuana through a closed

vehicle—only once the window was allegedly rolled down did the officer

purportedly smell the marijuana. 5 R.R. 8, 12, 212 (testimony of officer elicited by

State; State’s closing argument).

             4. The Correct Standard of Review Was That Governing
                Consensual Encounters, Because Detention Was Not Justified

      Despite the Court of Appeals’ conclusion that probable cause existed, it only

did so on the mistaken premise that the officer had reasonable suspicion to detain

Rocha. Instead of concluding reasonable suspicion existed, the Court of Appeals

should have viewed this incident as an unjustified detention. Where an officer

approaches a defendant with weapon drawn and simultaneously shines a flashlight

on the defendant, the police officer’s actions constitute a show of authority or force

that initiates a detention. See Florida v. Bostick, 501 U.S. 429, 446 (1991) (held

visibility of officer’s gun “in a recognizable weapons pouch” and use of flashlight

amounts to intimidating show of force rendering encounter with defendant

nonconsensual). See also United States v. Mendenhall, 446 U.S. 544, 554 (1980)
                                         14
(opinion of Stewart, J.) (held encounter was not consensual where officers displayed

weapon); Michigan v. Chestnut, 486 U.S. 567, 575 (1988) (display of weapon

contributes to coercive environment); State v. Garcia-Cantu, 253 S.W.3d 236, 243

n. 35 (Tex.Crim.App.2008) (listing numerous factors for consideration of whether a

police encounter amounted to a Fourth Amendment seizure) Hernandez v. State, 376

S.W.3d 863 (Tex. App.—Fort Worth 2012) (appeal granted where evidence of

record concerning detaining officer’s spotlight position could not be found to

support conviction).

      Furthermore, whether an encounter was consensual turns on whether a

reasonable person would feel free to walk away. Florida v. Bostick, 501 U.S. 429,

446 (1991). Whether a reasonable person would feel free to walk away is a factor for

consideration but is not the only factor for consideration, as “it says nothing about

whether or not the police conduct at issue was coercive.” Id. Instead, the Supreme

Court has held a defendant’s freedom of movement is merely a clue as to the

appropriate inquiry—whether a reasonable person would feel free to decline the

officer’s requests and terminate his encounter with the officer. Id. Regardless of this,

the Court of Appeals’ conclusion the officer smelled marijuana overlooks the

preliminary issue of how the officer came into a position to smell marijuana in the

first place. Ct. App. Op. at 13.

                                          15
         C. Conclusion – First and Second Grounds for Review

         Appellant would submit that the Court of Appeals erred insofar as its opinion

affirming the trial court’s denial of Appellant’s suppression motion is inconsistent

with state and federal precedent. The Court of Appeals also either misinterpreted or

overlooked certain key facts of Appellant’s case, particularly with regards to the

detaining officer’s failure to properly develop reasonable suspicion. Therefore, this

Court should grant discretionary review.

   II.      GROUND THREE

   A. Summary of the Argument – Third Ground for Review

         The Court of Appeals erred in affirming the trial court’s denial of Appellant’s

requests for jury instructions pursuant to Tex. Code Crim. Proc. art. 38.23. Because

the Court of Appeals misinterpreted applicable case law, it concluded that all factual

issues for which Appellant requested a jury instruction were either immaterial or

undisputed. This conclusion apparently rests in part on the trial court’s

determination that reasonable suspicion existed, resulting in a denial of Appellant’s

suppression motion. Nevertheless, Appellant’s issues were clearly disputed and

material, as the jury should have been allowed to consider and resolve factual issues

in light of the perceived lawfulness of how the evidence was obtained.




                                            16
   B. Argument and Authorities – Third Ground for Review

      The Court of Appeals correctly states the rule from Tex. Crim. Pro. Art.

38.23—a trial court must instruct the jury to disregard unlawfully obtained evidence

if a fact issue exists concerning the legality of the manner in which the police

obtained the evidence. Ct. App. Op. at 12, citing Madden v. State, 242 S.W.3d 504,

510 (Tex. Crim. App. 2007). However, the Court of Appeals’ analysis concerning

whether a jury instruction was warranted on disputed issues of material fact is

flawed, as the court had already erroneously determined the officer had reasonable

suspicion to detain Rocha based on his mere presence in a high-crime area.

      This Court has previously held that a defendant is still entitled to an Article

38.23 jury instruction as long as the evidence raises a factual issue as to the

lawfulness of obtaining that evidence. Holmes v. State, 248 S.W.3d 194, 196 (Tex.

Crim. App. 2008) (defendant still entitled to jury instruction even if he affirmatively

states ‘No objection’ when evidence offered). “These are two distinct issues: one is a

legal question of admissibility for the judge and the other is a question of disputed

fact for the jury’s consideration and resolution.” Id. Consequently, the Court of

Appeals also erred in concluding Rocha was not entitled to a jury instruction on

whether the detaining officer had displayed his gun as a show of force, whether a

reasonable person in Rocha’s position would have felt free to leave, and whether the

                                          17
area where Rocha was detained was a high-crime area, as a jury instruction on any

one of these factual issues might have caused the jury to consider and resolve this

case differently. Cf. Atkinson v. State, 923 S.W.2d 21, 23 (Tex. Crim. App. 1996)

(“[W]hen there are disputed issues of fact affecting the legality of [the evidence’s]

seizure, the question of exclusion may be tried to the jury.”), with Ct. App. Op. at 13

(Court of Appeals’ erroneous determination that factual issues for which Appellant

sought jury instruction were either undisputed or immaterial after trial court’s denial

of suppression motion).

      Moreover, the Court of Appeals erred in concluding Appellant failed to

contend that the area where Rocha was detained was a high-crime area. Ct. App. Op.

at 13. To the contrary, Appellant requested an Article 38.23 jury instruction to put

this very issue before the jury, but the trial court refused to do so, apparently in large

part based on defense witness’s testimony they possessed marijuana–something the

officer could not have perceived. 5 R.R. 194. Yet, the Court of Appeals concluded

that these factual issues were either undisputed or immaterial. Ct. App. Op. at 13.

      Additionally, the Court of Appeals initially determined that “no one contested

[the officer’s] testimony that he smelled marijuana as soon as he reached the car.”

Panel Opinion at 11. Ultimately, the Court of Appeals withdrew its earlier Panel

Opinion and replaced it with a published opinion concluding that this issue of fact

                                           18
was “not material” because the officer “could have smelled marijuana as the

passengers exited the car.” Ct. App. Op. at 14. However, that is not when the officer

purportedly smelled marijuana, and it relies on a fallacious conclusion, i.e., that the

officer had already developed reasonable suspicion to detain Rocha and his

passengers. Ct. App. Op. at 14.

      On the contrary, this factual issue is absolutely material, because the jury may

well have acquitted Rocha if it had been permitted to consider whether the officer’s

failure to detect marijuana prior to engaging Rocha resulted in an unlawful

detention. See Ct. App. Op. at 14; see also 5 R.R. 188, 197 (request for jury

instruction regarding whether windows were rolled up or down).

      Moreover, Appellant would submit that the trial court’s failure to allow the

requested jury instructions—in addition to the trial court’s earlier denial of

Appellant’s suppression motion—constitutes reversible error because it influenced

the jury insofar as it prevented the jury from considering the lawfulness of evidence

seized by the officer. See Barshaw v. State, 342 S.W.3d 91, 93-94

(Tex.Crim.App.2011) (discussing Tex. R. App. Proc. 44.2(b), held appellate courts

should overturn convictions where trial court’s error affects defendant’s substantial

rights and influences the jury).




                                          19
   C. Conclusion – Third Ground for Review

      The Court of Appeals should have reversed the trial court’s denial of

Appellant’s request for jury instructions on multiple issues, including whether

Rocha’s windows were rolled up, which prompted the larger question—whether the

detaining officer could smell marijuana coming from Rocha’s vehicle when he

approached it. For, if the windows were in fact rolled up, the jury could have found

the officer acted unlawfully in seizing the marijuana. Because the Court of Appeals

misapplied the law, this Court should grant discretionary review.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court

grant discretionary review, and upon submission of the case, vacate the judgments of

the courts below, and remand this case for a new trial.

                                              Respectfully submitted,
                                              OOSTERHOF & BRAY, PLLC
                                              1910 Pacific Ave., Ste. 15550
                                              Dallas, Texas 75201
                                              Tel: (214) 550-4664
                                              Fax: (214) 550-4654
                                              Email: john@oblawfirm.com


                                   By:          /s/ John M. Bray
                                              John M. Bray
                                              Texas Bar No. 24081360
                                              ATTORNEY FOR APPELLANT
                                         20
            CERTIFICATE OF COMPLIANCE AND DELIVERY


This is to certify that: (1) this document, created using Microsoft Word, Version

14.0.7143.5000, contains 4,498 words, excluding those items permitted by Rule

9.4(i)(1) , Tex. R. App. Proc., and complies with Rules 9.4(i)(2)(B) and 9.4(i)(3),

Tex. R. App. Proc.; and (2) on May 25, 2015, a true and correct copy of the above

and foregoing Corrected Petition for Discretionary Review, as well as any and all

attachments thereto, was transmitted via the eService function on the State’s e-Filing

portal, to Alan Curry (CURRY_ALAN@dao.hctx.net), counsel for the State of

Texas, and the Hon. Lisa McMinn (lisa.mcminn@spa.state.tx.us), State’s

Prosecuting Attorney.




  /s/ John M. Bray
John M. Bray




                                         21
        APPENDIX A
Court of Appeals Decision, dated
         March 12, 2015
Opinion issued March 12, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00897-CR
                            ———————————
                           CESAR ROCHA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


           On Appeal from the County Criminal Court at Law No. 1
                            Harris County, Texas
                        Trial Court Case No. 1914250




                          OPINION ON REHEARING

      A jury found Rocha guilty of possession of marijuana in a useable quantity

of more than two ounces and less than four ounces and assessed his punishment at

270 days’ confinement. On appeal, Rocha contends that the trial court erred in

(1) denying his motion to dismiss, because the State’s re–filing of the case violated
his right to due process and articles 29.03 and 29.04 of the Texas Code of Criminal

Procedure; (2) denying his motion to suppress pursuant to the Fourth Amendment;

and (3) denying his request for a jury instruction pursuant to article 38.23 of the

Texas Code of Criminal Procedure. Rocha further contends that the trial court

violated his right to due process by failing to maintain impartiality during the

proceedings. After a panel of our court issued its opinion in this case, Rocha

moved for rehearing en banc. The en banc court denies the motion for rehearing;

however, the panel withdraws its opinion and judgment and issues this opinion and

judgment in their stead. Finding no error, we affirm.

                                    Background

      In February 2010, Patrol Officer J. P. Cruz observed a blue Ford Expedition

with tinted windows parked in an apartment complex parking lot after dark, its

lights on and engine running. The complex’s leasing office had received numerous

complaints regarding narcotics deals, prostitution, and trespassing taking place in

this parking lot. Officer Cruz was aware of these complaints, and he personally

had observed narcotics activity in this parking lot. He had observed individuals

parked in the complex parking lot with their car engines running and headlights on

before making narcotics transactions. The Expedition remained parked for five to

ten minutes. No one entered or exited the car. Officer Cruz observed at least three

people sitting in the Expedition.



                                         2
      Officer Cruz approached the Expedition on foot with a flashlight.           He

approached the vehicle because no one was exiting it, and its lights and engine had

been on for five to ten minutes. As a safety precaution, he also drew his handgun,

but pointed it down and close to his body. Officer Cruz testified that he noticed the

driver’s window was partially open; as he approached it, he smelled a strong odor

of marijuana emanating from the car. Officer Cruz waved to the driver, who was

Rocha. In response, Rocha further rolled down his window.

      Officer Cruz asked the passengers to exit the car, and he handcuffed them.

Officer Cruz asked Rocha if he had marijuana in the car. Rocha confessed that he

did and that it was in the car’s center console. Officer Cruz discovered marijuana

in the car’s center console, wrapped in 25 clear, small bags. All of the small bags

were further enclosed in a large, clear bag.

      Course of Proceedings

      On February 5, 2010, the State filed an information against Rocha. On April

19, 2010, Rocha pleaded guilty to possession of marijuana pursuant to a plea

bargain. The trial court convicted him and assessed his punishment at thirty days’

confinement. Rocha later filed a successful writ of habeas corpus pursuant to

Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). The record is silent as

to when Rocha filed the writ and when the writ was granted. The State proceeded




                                          3
to a re–trial. The trial court reset the case on multiple occasions in 2013: on April

15, May 16, June 14, and June 24.

      At the last trial setting, the State moved to dismiss the case and noted that it

would re–file it. The trial court granted the State’s motion. The State then filed a

new information against Rocha, and the trial court set the case for trial. Rocha

moved to suppress the evidence of marijuana and his statements to Officer Cruz,

and at trial, the trial court held a hearing on the motion. Rocha also moved to

dismiss the case, contending that the State’s earlier non–suit precluded it from re–

filing the same criminal charges. The trial court denied both motions.

      At trial, Officer Cruz testified that based on his experience, a narcotics

dealer who plans to make a sale typically will park his car in a parking lot, will

leave its engine running, will remain in the car, and will occasionally leave its

lights on, because the dealer plans to conduct the sale from the car and leave the

parking lot as soon as the transaction is complete. Officer Cruz also testified that,

as he approached the Expedition, he drew his gun for his own safety, because a

narcotics dealer typically carries a weapon.




                                          4
                                    Discussion

I.    Re-filed Information

      Standard of review

      We review a trial court’s decision to deny a defendant’s motion to dismiss a

charging instrument under a bifurcated standard. See State v. Krizan–Wilson, 354

S.W.3d 808, 815 (Tex. Crim. App. 2011) (citing Guzman v. State, 955 S.W.2d 85,

87–89 (Tex. Crim. App. 1997)). We defer to a trial court’s “findings of fact that

are supported by the record, as well as mixed questions of law and fact that rely

upon the credibility of a witness.” Id. We review de novo “pure questions of law

and mixed questions that do not depend on credibility determinations.” Id.

      Analysis

      Rocha contends that the State’s re–filing of the case violated (1) his right to

due process; and (2) articles 29.03 and 29.04 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.04 (West 2006).

These contentions lack merit. The Due Process Clause of the Fifth Amendment

“has a limited role to play in protecting against oppressive delay” and concerns

only pre–indictment delays. Krizan–Wilson, 354 S.W.3d at 814 (quoting United

States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048 (1977)); State v.

Harbor, 425 S.W.3d 508, 515 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

Here, Rocha’s complaint does not concern pre–information or investigative delay;



                                         5
rather, it concerns the State’s delay during the prosecution of the case.

Accordingly, the State’s motion to dismiss and immediate re–filing of the case did

not violate the Fifth Amendment’s Due Process Clause. See Harbor, 425 S.W.3d

at 515.

      Relying on United States ex. rel. Hetenyi v. Wilkins, Rocha next contends

that the State’s re–filing of the case was fundamentally unfair, violating the Due

Process Clause of the Fourteenth Amendment. 348 F.2d 844, 867 (2d Cir. 1965).

Hetenyi, however, is distinguishable. There, the State charged the defendant with

first–degree murder, but the jury found him guilty of second–degree murder. Id. at

847. After his conviction was vacated on appeal, the State again prosecuted the

defendant for first–degree murder. Id. The federal appellate court held that the re–

prosecution for first–degree murder violated the due process clause of the

Fourteenth Amendment, because the jury refused to convict the defendant of first–

degree murder in the first trial. Id. at 856–57. In contrast to the facts in Hetenyi,

the State moved to dismiss this case before any trial took place, and Rocha had not

been acquitted of possession of marijuana.

      Rocha further contends that the State’s immediate re–filing of the

information violates articles 29.03 and 29.04 of the Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.04. Article 29.03 provides that:

      A criminal action may be continued on the written motion of the State
      or of the defendant, upon sufficient cause shown; which cause shall be

                                         6
      fully set forth in the motion. A continuance may be only for as long
      as is necessary.

Id. art. 29.03. Article 29.04 similarly provides the grounds for a State’s motion to

continue the case. See id. art. 29.04 (outlining requirements of State’s motion for

continuance for want of a witness). Neither provision, however, limits the State’s

right to re–file a case after dismissal; both are inapplicable to the facts presented in

this case. We hold that the trial court properly denied Rocha’s motion to dismiss

the State’s re–filed information.

II.   Suppression Ruling

      Standard of review and applicable law

      We evaluate a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

The trial judge is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007). Accordingly, we defer to the trial court’s determination of historical facts if

the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial

court’s application of the law to those facts. Id. “[T]he prevailing party is entitled

to ‘the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465

(Tex. Crim. App. 2011) (quoting State v. Garcia–Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably

                                           7
supported by the record and correct on any theory of law applicable to the case.”

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (quoting Willover v.

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

      “Law enforcement and citizens engage in three distinct types of interactions:

(1) consensual encounters; (2) investigatory detentions; and (3) arrests.” State v.

Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011) (citing Florida v.

Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991), Gerstein v. Pugh, 420

U.S. 103, 111–12, 95 S. Ct. 854, 862 (1975), and Terry v. Ohio, 392 U.S. 1, 30–31,

88 S. Ct. 1868, 1884–85 (1968)). Consensual police–citizen encounters do not

implicate Fourth Amendment protections. Id. at 411 (citing Bostick, 501 U.S. at

434, 111 S. Ct. at 2386). In contrast, if there is a detention, the detaining officer

must have reasonable suspicion that the person “is, has been, or soon will be,

engaged in criminal activity.” Id. (citing Florida v. Rodriguez, 469 U.S. 1, 5–6,

105 S. Ct. 308, 310–11 (1984)). When there is a warrantless arrest, the arresting

officer must have “probable cause to believe the same.” Id. (citing Atwater v. City

of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001)).

      We consider the “totality of the circumstances surrounding the interaction to

determine whether a reasonable person in the defendant’s shoes would have felt

free to ignore [a police officer’s] request or terminate the interaction.” Id. (citing

Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 2405–06 (2007)).



                                          8
Although we consider “[t]he surrounding circumstances, including time and place,

. . . the officer’s conduct is the most important factor” in deciding whether an

encounter between a citizen and a police officer was consensual or a Fourth

Amendment seizure. Id. (citing Garcia–Cantu, 253 S.W.3d at 244). “[W]hen an

officer through force or a showing of authority restrains a citizen’s liberty, the

encounter is no longer consensual.” Id. (citing Brendlin, 551 U.S. at 254, 127 S.

Ct. at 2405). To support a reasonable suspicion that a person is, has been, or soon

will be engaged in criminal activity, an officer must have “specific, articulable

facts . . . combined with rational inferences from those facts.” Derichsweiler v.

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing United States v.

Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989), and Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010)). We examine the reasonableness of a

temporary investigative detention in light of the totality of the circumstances to

determine whether an officer had an objectively justifiable basis for the detention.

Id. (citing Terry, 392 U.S. at 21–22, 88 S. Ct. 1868, 1880, and United States v.

Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690, 695 (1981)); Balentine v. State, 71

S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing Woods v. State, 956 S.W.2d 33,

38 (Tex. Crim. App. 1997)). Reasonable suspicion may exist even if the conduct

of the person detained is “as consistent with innocent activity as with criminal




                                         9
activity.” York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011) (quoting

Curtis v. State, 238 S.W.3d 376, 378–79 (Tex. Crim. App. 2007)).

      A defendant has the “burden of producing evidence to rebut the presumption

of proper conduct by law enforcement” and can satisfy it “with evidence that the

seizure occurred without a warrant.”       Woodard, 341 S.W.3d at 412.          “If the

defendant satisfies the initial burden, the burden then shifts to the State to establish

that the seizure was nevertheless reasonable under the applicable standard—either

reasonable suspicion or probable cause.” Id.

      A police officer “may conduct a warrantless search of a vehicle if it is

readily mobile and there is probable cause to believe that it contains contraband.”

Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (citing Pennsylvania

v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487 (1996), and California v.

Carney, 471 U.S. 386, 393, 105 S. Ct. 2066, 2070 (1985)). A strong odor of

marijuana emanating from a car establishes probable cause to search the car and its

occupants. Jordan v. State, 394 S.W.3d 58, 64–65 (Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d) (citing Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex.

Crim. App. 2006)); see also Miller v. State, 608 S.W.2d 684, 685–86 (Tex. Crim.

App. 1980) (holding that officers were authorized to conduct pat-down search after

smelling odor of marijuana emanating from car and from appellant’s person); State




                                          10
v. Crawford, 120 S.W.3d 508, 510 (Tex. App.—Dallas 2003, no pet.) (finding that

officers had probable cause to search car after smelling odor of burned marijuana).

      Analysis

      Rocha contends that Officer Cruz violated his Fourth Amendment rights in

connection with Rocha’s detention and subsequent arrest.1 The State adduced

sufficient evidence, however, that Officer Cruz had specific, articulable facts

supporting a reasonable suspicion that Rocha was connected with criminal activity.

See Woodard, 341 S.W.3d at 411; Derichsweiler, 348 S.W.3d at 914. Officer Cruz

approached the Expedition because the driver and passengers exhibited behavior

consistent with that of other individuals he had observed conducting narcotics

transactions in the same parking lot. Officer Cruz testified to specific, articulable

facts: the passengers and driver waited in the car for several minutes at a location

where he previously had observed narcotics activity, without turning off their car

engine or lights or exiting the car. See Derichsweiler, 348 S.W.3d at 914. The

circumstances, viewed in totality, support Cruz’s investigative detention. See id;

Balentine, 71 S.W.3d at 768.

      The State also adduced sufficient evidence supporting probable cause to

arrest Rocha. Officer Cruz smelled a strong odor of marijuana emanating from

1
      Rocha also contends that Officer Cruz’s conduct violated his Fifth and Sixth
      Amendment rights. Rocha, however, provides no argument or authority in support
      of his contention. Accordingly, we do not address these issues. See TEX. R. APP.
      P. 38.1(i).

                                         11
Rocha’s car as soon as he approached Rocha’s window. Although two of the

passengers contested Officer Cruz’s testimony that the window was rolled down as

he approached, we defer to the trial court’s determination of witness credibility

where the record supports it, as it does here. See Weide, 214 S.W.3d at 24–25;

Ford, 158 S.W.3d at 493. When Officer Cruz smelled an odor of marijuana, he

had probable cause to search the car and its occupants. See Jordan, 394 S.W.3d at

64–65. We hold that the trial court did not err in denying Rocha’s motion to

suppress.

III.   Jury Charge

       Standard of review

       Rocha contends that the trial court erred in denying his request for a jury

instruction pursuant to article 38.23 of the Code of Criminal Procedure, because he

adduced material evidence that the Officer Cruz’s search was unlawful. See TEX.

CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005).            If a fact issue exists

concerning whether evidence was unlawfully obtained, then a trial court must

instruct the jury that if it believes that the evidence was obtained in violation of

article 38.23, then it should disregard the evidence so obtained. Madden v. State,

242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Pierce v. State, 32 S.W.3d 247, 251

(Tex. Crim. App. 2000). The evidence (1) must raise an issue of fact; (2) must be

affirmatively contested; and (3) must be material to the lawfulness of the



                                        12
challenged conduct. Madden, 242 S.W.3d at 510. The defendant must request a

jury instruction on a specific historical fact to obtain one. Id. at 511. “[I]f other

facts, not in dispute, are sufficient to support the lawfulness of the challenged

conduct, then the disputed fact . . . is not material to the ultimate admissibility of

the evidence.” Id. at 510. In other words, “[t]he disputed fact must be an essential

one in deciding the lawfulness of the challenged conduct.” Id. at 511.

      Analysis

      Rocha disputes the facts surrounding his arrest, including: (1) whether

Officer Cruz displayed his gun as a show of force; (2) whether a reasonable person

in his position would have felt free to leave; (3) whether the apartment complex

was a high–crime area; (4) whether Rocha or anyone else in the Expedition was

acting suspiciously; (5) whether Rocha’s window was rolled up when Officer Cruz

approached the Expedition; and (6) whether Officer Cruz had reasonable suspicion.

      Fact issues (1) and (2) are not material, because Officer Cruz had reasonable

suspicion to detain Rocha before approaching the Expedition with his gun drawn.

See id. at 510–11. Issues (3) and (4) are undisputed. No one contested Officer

Cruz’s testimony that he had viewed many narcotics transactions at the apartment

complex. See id. at 510. No one contested that Rocha and the passengers were

waiting in the Expedition in the complex parking lot for several minutes with the




                                         13
car engine running and lights on, the basis for the temporary investigative

detention.

      Fact issue (5) is not material. Although both passengers testified that the

windows were rolled up as Officer Cruz approached, Officer Cruz also could have

smelled marijuana as the passengers exited the car, which occurred before Officer

Cruz asked Rocha if he had any marijuana. Once Officer Cruz smelled marijuana,

he had probable cause to search the car and its occupants. See Jordan, 394 S.W.3d

at 64–65. The ultimate material fact is whether there was an odor of marijuana at

some point, not whether the window was up or down at the initial detention.

Although both passengers contested Officer Cruz’s testimony that the window was

open, this contested fact was not material. See Madden, 242 S.W.3d at 510–11.

Thus, Rocha’s first five challenges were either not material or not contested.

      Issue (6) is not a factual issue, but a legal issue. Whether a police officer has

reasonable suspicion is a question of law, not fact. See id. at 511 (“The jury . . . is

not an expert on legal terms of art. . . . It cannot be expected to decide whether the

totality of certain facts do or do not constitute ‘reasonable suspicion’ under the

law.”).

      Because Rocha did not raise any material fact issue, he was not entitled to an

article 38.23 jury instruction. See id. at 510. Accordingly, the trial court did not

err in denying his request for an article 38.23 jury instruction.



                                          14
IV.   Impartiality of trial court

      Rocha contends that the trial court violated his right to due process in failing

to maintain impartiality during the proceedings. “Due process requires a neutral

and detached hearing body or officer.” Brumit v. State, 206 S.W.3d 639, 645 (Tex.

Crim. App. 2006). A trial court’s actions will be presumed to have been correct,

absent a clear showing of bias. Id.

      Rocha first challenges the following exchange, outside the presence of the

jury, during the State’s argument on Rocha’s motion to suppress:

      The Court: Okay. Let’s say it’s not a consensual encounter. What’s the
      reasonable suspicion to temporarily detain to confirm or dispel any
      suspicions about criminal activity having taken place or about to take place?

      State’s counsel: The reasonable suspicion for the officer to approach—are
      you referring other than the high criminal activity in the area?

      The Court: Other than the high crime area.

A trial judge has broad discretion in maintaining control and expediting a trial and

may interject to clarify a point of confusion. Jasper v. State, 61 S.W.3d 413, 421

(Tex. Crim. App. 2001); Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—

Houston [14th Dist.] 2002, pet. ref’d). Rocha contends that the trial court went

beyond those bounds and aided the State by intimating that it would find that




                                         15
reasonable suspicion existed when the State had not previously argued this theory. 2

This contention is without merit. The State had earlier argued that Officer Cruz

had probable cause to search the car and detain Rocha:

         State’s counsel: . . . And then once he had that smell, once he had that
         admission, he could search the vehicle. That’s that. It’s very simple. There
         is no complicated explanation as to what happened there and whether the
         officer could enter the vehicle. It’s very simple. He had probable cause to
         search the vehicle.

         The Court: So, your position is that a detention did not exist until after he
         smelled the marijuana?

         State’s counsel: Yes.

         The State argued at the outset that no search occurred until after Officer

Cruz smelled the marijuana emanating from the car. The trial court acted within its

discretion by responding with a question to clarify. See Jasper, 61 S.W.3d at 421.

The State clarified that its position was that no detention occurred until after

Officer Cruz smelled the marijuana. In the subsequent complained–of exchange,

the trial court did not introduce a new alternative theory and thus did not assist the

State.

         Rocha also contends that the trial court violated his right to due process in

failing to hold a pre–trial hearing on his motion to suppress. But a trial court is not

2
         Rocha failed to object to this exchange. But, because the Court of Criminal
         Appeals has not spoken definitively on the issue of whether a trial judge’s
         comments can be challenged on appeal absent an objection, we address the merits
         of Rocha’s complaint. See Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim.
         App. 2006).

                                            16
required to rule on a motion to suppress before trial and may carry the motion

along with the trial on the merits. York v. State, 342 S.W.3d 528, 550–51 (Tex.

Crim. App. 2011) (citing Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App.

1988)). Accordingly, we hold that Rocha failed to make a clear showing of bias

and thus does not overcome the presumption that the trial court maintained its

impartiality during the proceedings.




                                       17
                                     Conclusion

       The trial court did not err in denying Rocha’s motion to dismiss, motion to

suppress, and request for an article 38.23 jury instruction, nor did it fail to maintain

impartiality during the proceedings. We therefore affirm the judgment of the trial

court. The motion for rehearing en banc is denied.




                                                 Jane Bland
                                                 Justice

Panel consists of Justices Higley and Bland. ∗

En banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Huddle, and Lloyd.

Publish. See TEX. R. APP. P. 47.2(b).




∗
      Justice Jim Sharp was a member of the original panel, which unanimously voted to
      affirm, but his term of office expired in the interim. The two remaining justices
      issue the opinion on rehearing. See TEX. R. APP. P. 41.1 & 49.3.


                                          18
