                                                             ACCEPTED
                                                        01-14-00054-CR
                                              FIRST COURT OF APPEALS
                                                      HOUSTON, TEXAS
                                                 12/30/2014 10:16:38 AM
                                                    CHRISTOPHER PRINE
                                                                 CLERK

       CASE NO. 01-14-00054-CR

                                       FILED IN
                                1st COURT OF APPEALS
    IN THE COURT OF APPEALS         HOUSTON, TEXAS
FIRST SUPREME JUDICIAL DISTRICT12/30/2014 10:16:38 AM
         HOUSTON, TEXAS         CHRISTOPHER A. PRINE
                                        Clerk



   ALPHONSON DAMON MALONE,
          APPELLANT

                  V.

        THE STATE OF TEXAS,
             APPELLEE


On Appeal from the County Criminal Court
              At Law No. 8
        of Harris County, Texas
           Cause No. 1899612


     APPELLANT’S REPLY BRIEF




                       GARY TABAKMAN
                       TBA No. 24076065
                       712 MAIN ST., Ste. 2400
                       HOUSTON, TEXAS 77002
                       TELEPHONE: (713) 228-8500
                       FACSIMILE: (713) 228-0034
                       EMAIL: Gary@BSDLawfirm.com

                       COUNSEL FOR APPELLANT,
                       ALPHONSON DAMON MALONE
                   IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 38.1(a), the following is a list of all parties to the

trial court’s judgment, and respective trial and appellate counsel:


Presiding Judge
The Honorable Jay Karahan
Harris County Criminal Court at Law No.8
1201 Franklin, 9th Floor
Houston, Harris County, Texas 77002

Attorneys for Appellee (State of Texas)
Ryan Trask               (at trial)
Alan Curry               (on appeal)
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002

Attorneys for Appellant
Gary Tabakman           (at trial and on appeal)
712 Main, Ste. 2400
Houston, Texas 77002

Appellant
Alphonson Damon Malone




                                          ii
                                     TABLE OF CONTENTS

                                                                                                     PAGE

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

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

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

PRELIMINARY STATEMENT ............................................................................ vii

EXPLANATION OF SYMBOLS .......................................................................... vii

REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER ONE ..................... 1

REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER TWO .................... 1

REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER THREE................. 1

CERTIFICATE OF COMPLIANCE .......................................................................11

CERTIFICATE OF SERVICE ................................................................................11




                                                      iii
                                        INDEX OF AUTHORITIES

   CASES                                                                                                       PAGE

Balentine v. State,
 71 S.W.3d 763 (Tex. Crim. App. 2002) .................................................................3,4

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

Dancy v. State,
 728 S.W.2d 772 (Tex.Crim.App.1987). ....................................................................5

Davis v. State,
 947 S.W.2d 240 (Tex.Crim.App.1997) .....................................................................5

Dowthitt v. State,
 931 S.W.2d 244, (Tex. Crim. App.1996 ) .................................................................5

Florida v. Bostick,
  501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)....................................4

Josey v. State,
  981 S.W. 2d at 839 (Tex. App.- Houston [14th Dist] 1998, pet, ref’d. ...................2,4

Morris v. State,
 50 S.W.3d 89, 97 (Tex. App.- Fort Worth 2001, no pet.) ......................................3,4

Rhode Island v. Innis,
 446 U.S. 291(1980) ....................................................................................................9

Rhodes v. State,
 945 S.W.2d 115 (Tex. Crim. App. 1997). .................................................................2

Ramirez v. State,
 105 S.W.3d 730 (Tex.App.-Austin 2003, no pet.) ........................................... 4,5,6,7

Roquemore v. State,
 60 S.W.3d 862, 868 (Tex.Crim.App.2001) ..............................................................9




                                                            iv
Stansbury v. California,
  511 U.S. 318 (1994) .............................................................................................4,5,6

State v. Moore,
  S.W.3d 383 (Tex.App.-Austin 2000, no pet.) .........................................................4,7

State v. Ortiz,
  382 S.W.3d 367 (Tex. Crim. App. 2012) ............................................................4,8,9

Terry v. Ohio,
  392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ....................................................5

Ussery v. State,
 651 S.W.2d 767 (Tex. Crim. App.1983) ...................................................................5

Wong Sun v. United States,
 371 U.S. 471 (1963) .................................................................................................10




                                                            v
                         PRELIMINARY STATEMENT

       This appeal stems from Alphonson Damon Malone’s, Appellant, denial of

motion to suppress evidence after an evidentiary hearing held on December 6,

2013. On October 2, 2014, Appellant filed his brief complaining in three (3) issues

that the Trial Court erred in denying Appellant’s motion to suppress evidence

seized following a custodial interrogation conducted without Miranda warnings;

that the warrantless detention and arrest of appellant was unreasonable and in

violation of the Fourth Amendment of The Unites States Constitution; and that the

evidence seized following the warrantless detention of Appellant is inadmissible

pursuant to Article 38.23(a) V.A.C.C.P. The State accordingly filed its brief in

response. Pursuant to Texas Rule of Appellate Procedure 38.3, Appellant files his

brief in reply.

                        EXPLANATION OF SYMBOLS

       “CR” will be used to indicate the clerk’s record.

       “RR” will be used to reference the reporter’s record from the hearing on the

       motion to suppress evidence.

       “SB” will be used to reference State’s Brief.

       “AB” will be used to reference Appellant’s Brief.




                                          vi
     REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER ONE

      Appellant’s Issue Number One Reads:

           The Trial Court Erred In Denying Appellant’s Motion To
           Suppress Evidence Seized Following A Custodial
           Interrogation Conducted Without Miranda Warnings.

     REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER TWO

      Appellant’s Issue Number Two Reads:

           The Warrantless Detention And Arrest Of Appellant Was
           Unreasonable And In Violation Of The Fourth Amendment
           Of The Unites States Constitution.


   REPLY TO APPELLEE’S RESPONSE TO ISSUE NUMBER THREE

      Appellant’s Issue Number Three Reads:

           The Evidence Seized Following The Warrantless Detention
           Of Appellant Is Inadmissible Pursuant To Article 38.23(a)
           V.A.C.C.P.


      In his opening Brief, Malone points out that he was the passenger in the

vehicle driven by his friend who was eventually released by police. That fact will

never change as we proceed to evaluate Appellee’s brief. Appellant will address

the facts of the case through the sequence of events on June 1, 2013.

      The State focuses their response on whether the handcuffing of Appellant

was an investigative detention or arrest, and if Appellant was the subject of a

custodial interrogation. Although we may agree that the line between the two is not



                                         1
always clear, the facts here lean heavily towards an arrest as opposed to a simple

detention. As discussed in Rhodes v. State, each citizen-police encounter must be

factually evaluated in its own terms. 945 S.W.2d 115, 118 (Tex. Crim. App. 1997).

That is exactly what should be done here.

      The initial interaction between Officer Sutton and Alphonson Malone is a

show of authority. Officer Sutton pulled the driver over and handcuffed both the

driver and passenger immediately without asking a single question. (2RR-42).

Despite the fact that the State claims Officer Sutton feared for his safety, there was

in fact no testimony that Officer Sutton actually feared for his safety. (SB-9).

What Officer Sutton testified to was that in different types of scenarios, such as

officer safety, handcuffing an individual would be appropriate. (2RR-12). Another

reason the State believes handcuffing was appropriate was that Officer Sutton saw

what he believed to be “loose” marijuana on the driver who was not arrested.

(2RR-13). However, there was no physical evidence recovered as to “loose”

marijuana or “shake” that Officer Sutton supposedly saw. (2RR-30-31).

Handcuffing Appellant was unreasonable and as the trial court properly found, led

to his arrest prior to questioning. (Supp. CR 4).

      Significantly, with respect to the issue of arrest, the State focuses on cases

that are very distinguishable from the matter at hand. In Josey v. State, officers

observed what they believed to be criminal activity and the appellant was detained



                                          2
after the driver of the vehicle was arrested on separate charges. 981 S.W. 2d at 839

(Tex. App.- Houston [14th Dist] 1998, pet, ref’d.) The appellant was detained after

an inventory search of the vehicle revealed a plastic bag of money consistent with

drug transactions. Id. Furthermore, the vehicle actually belonged to the appellant,

not the driver, and a crowd of five to ten people gathered at the corner of a nearby

intersection which truly concerned officers' about their safety and maintaining the

status quo. Id. at 840. The appellant was then handcuffed and placed on the other

side of the patrol car while police investigated further criminal activity. Id.

      In Morris v. State, officers working undercover observed a reverse drug

transaction where the passenger in the vehicle was suspected of being involved. 50

S.W.3d 89, 97 (Tex. App. - Fort Worth 2001, no pet.). The court addressed the

handcuffing and apprehension of the passenger as a temporary investigatory

detention due to her proximity to the transaction, her connection to one of the

individuals involved in the drug transaction, and her connection to a vehicle used

in the drug transaction. Id.

      In Balentine v. State, an officer who was working alone stopped a person

walking briskly away from the scene of a crime. 71 S.W.3d at 767 (Tex. Crim.

App. 2002). The officer conducted a Terry search of the person, but did not find

any weapons. Id. The officer suspected that the appellant may have been involved

in the reported gunfire and he escorted the appellant to the back seat of his patrol



                                           3
car for further questioning without handcuffing him. Id. After the initial search, the

officer asked the suspect a series of questions and received contradictory

answers. Id. Based on the suspect's contradictory answers, the officer placed the

suspect in handcuffs and conducted a second frisk of the individual and found a

bullet (which was later used to link the suspect to the crime). Id. at 768. The

suspect's contradictory answers gave the officer “heightened” suspicions, which

justified the second frisk. Id. at 769–70.

      There are no circumstances in this case that are remotely similar to that of

Josey, Morris and Balentine. However, a closer look at the facts in this case

reveals the encounter between Officer Sutton and Appellant was more like Ramirez

v. State, 105 S.W.3d 730 (Tex.App.-Austin 2003, no pet.),; State v. Moore S.W.3d

383, 386 (Tex.App.-Austin 2000, no pet.); and State v. Ortiz, 382 S.W.3d 367

(Tex. Crim. App. 2012).

      A more thorough review of “arrest” and “custody” cases is needed to

properly evaluate this case. A person is “in custody” only if, under the

circumstances, a reasonable person would believe that his freedom of movement

was restrained to the degree associated with a formal arrest. Stansbury v.

California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The

“reasonable person” standard presupposes an innocent person. Florida v. Bostick,

501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). In determining



                                             4
whether custody exists, the subjective intent of law-enforcement officials to arrest

is irrelevant, unless the intent is communicated or manifested to the suspect in

some way. Stansbury, 511 U.S. at 322, 114 S.Ct. 1526; see also Dowthitt, 931

S.W.2d at 254; Dancy v. State, 728 S.W.2d 772, 778 (Tex.Crim.App.1987).

      On the other hand, a person held for investigative detention is not in

“custody.” Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App.1996 ). An

investigative detention involves detaining a person reasonably suspected of

criminal activity in order to determine his identity or to momentarily maintain the

status quo in order to garner more information. Terry v. Ohio, 392 U.S. 1, 20–21,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This sort of “Terry stop” must be a

temporary detention, must last no longer than necessary to effectuate the purpose

of the stop, must involve an actual investigation, and must use the least intrusive

means possible. See Davis v. State, 947 S.W.2d 240, 244–45 (Tex.Crim.App.1997)

(holding that detention may continue only so long as “articulable facts” support

reasonable suspicion that suspect was engaged in criminal activity).

      Furthermore, an interrogation may begin as noncustodial; police conduct

during the encounter may transform a consensual exchange into a custodial

interrogation. Dowthitt, 931 S.W.2d at 255; Ussery v. State, 651 S.W.2d 767, 770

(Tex.Crim.App.1983). This is where Ramirez is similar to the instant case. In

Ramirez, while conducting a pat down, the officer told Ramirez he was being



                                         5
detained and placed him in handcuffs. 105 S.W.3d at 736. The officer informed

Ramirez that he could see drug paraphernalia and drug residue in the garage and

asked, “Is there anything else I'm going to find in there that's illegal, any more

marijuana?” Id. Ramirez replied, “Well, I guess there's some pot in the red

cooler.” Id.

      The Stansbury test was applied to the facts in Ramirez and it was determined

that the appellant was in custody at the time the officer asked him whether he

would find any additional illegal items or marijuana in the garage. Id. at 738. First,

the officer physically deprived appellant of his freedom of action in a significant

way when he handcuffed him and began patting him down. Id. Second, he told the

appellant he was being detained, indicating the suspect could not leave. Id. Third,

his actions in handcuffing the appellant and stating that he appellant was detained

created a situation that would lead a reasonable person in the appellant's position to

believe that his freedom of movement was significantly restricted. Id. Finally, the

officer told the appellant he saw drug paraphernalia and drug residue in his garage.

He indicated that he knew the items were contraband by asking the appellant

whether he would find anything else “illegal” in the garage and whether he would

find “any more marijuana.” Id. These factors satisfied the Stansbury test for

custody.




                                          6
      As in Ramirez, the Stansbury test satisfies the case at hand. First, Officer

Sutton physically deprived Appellant of his freedom of action in a significant way

when he handcuffed him and began patting him down. (2RR-32). Second, neither

Appellant nor the driver were free to leave. (2RR-36,42). Third, Officer Sutton’s

actions in handcuffing Appellant and stating that Appellant was detained created a

situation that would lead a reasonable person in appellant's position to believe that

his freedom of movement was significantly restricted. Finally, Officer Sutton told

the driver in front of Appellant that he saw drug residue on his shoulder and

questioned the driver about drugs. (2RR-29). Most importantly, Officer Sutton

could reasonably foresee that his question would elicit an incriminating response

when he asked Appellant, “You are not going to BS me like your buddy…You’re

going to be honest with me about what’s going on here,” to which Appellant gave

the following incriminating response of, “I’m going to be honest with you. I have a

sweet in my pocket.” (2RR-49).

      In Moore, the state argues that this case is not similar (where the court found

that handcuffing the appellant was not reasonably necessary) based solely on the

fact that the crime was forgery and not possession of marijuana. (SB-11).

However, the state fails to recognize that the similarities in Moore to this case

heavily outweigh the single factor of the type of crime being committed. Each

factor addressed in Moore was applied to the facts in this case in Appellant’s brief,



                                         7
showing a striking similarity; from reasonable suspicion for the handcuffing, the

area and time of night, the officer being alone (for just over one minute), to the

officer not conducting any type of investigation. (AB 13-14). Furthermore, because

the subjective beliefs of the detaining officer are not included in the calculation of

whether a suspect is in custody, we should not minimize the actions of Officer

Sutton based solely on the type of crime Appellant was eventually arrested for.

Ortiz, 382 S.W.3d at 372.

      Although the issue of custodial interrogation is subject to a de novo review

as an issue of law; the reviewing court gives almost total deference to a trial court’s

determination of historical facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.

Crim. App. 2000). The trial court found that Appellant was under arrest prior to

making his statement to Officer Sutton, thus we again address if Appellant’s

statement was the product of a custodial interrogation. The State misses the mark

by leading the court to view Ortiz as distinguishable with respect to this issue. (SB-

18). If facts from trial court cases were identical to cases establishing a precedent,

our courts would not have much work to do.

      It is true that Officer Sutton may have not asked Appellant specifically about

“drugs” or “marijuana” such as in Ortiz. However, the driver was questioned in

front of Appellant about marijuana being on his person or in the vehicle, two

officers were at the scene by the time Appellant is questioned, the officers had



                                          8
manifested their belief to Appellant that he and the driver were connected to

narcotics in some way, and Officer Sutton testified Appellant was not free to leave.

(AB-9). As Officer Sutton only asked about marijuana at the scene, it would be a

stretch for us to think that his question to Appellant was inquiring about something

other than marijuana. Based on these facts, it would be questionable to consider

Ortiz as distinguishable. Furthermore, despite the State’s assertion that Appellant’s

statement was a spontaneous voluntary response; no testimony or evidence exists

to support that. In fact, the statement given by Appellant was the first thing he said

to Officer Sutton, and was the result of a direct question addressed to him, a

question likely to elicit an incriminating response. Roquemore v. State, 60 S.W.3d

862, 868 (Tex.Crim.App.2001) (quoting Rhode Island v. Innis, 446 U.S. 291, 301

(1980)). (2RR-29).

      This case speaks volumes about interaction between police officers and

citizens, and the force that officers exhibit in their line of duty. There are no bright

line rules or cases supporting the conduct of Officer Sutton, however there are

numerous cases highlighting what a reasonable person would believe this type of

encounter entails supporting Appellant’s position. Under a reasonable person

standard, Appellant was in custody and under arrest without probable cause during

questioning, and was forced to provide an incriminating response leading to the

recovery of marijuana on his person. Accordingly, the trial court erred in not



                                           9
granting the motion to suppress all evidence obtained as the result of an illegal

detention and arrest. See Wong Sun v. United States, 371 U.S. 471 (1963).


                                      Respectfully submitted,



                                      /s/Gary Tabakman
                                      GARY TABAKMAN
                                      TBA No. 24076065
                                      JPMorgan Chase Bank Building
                                      712 Main Street, 31st Floor
                                      Houston, Texas 77002
                                      Telephone: (713) 228-8500
                                      Facsimile: (713) 228-0034

                                      Counsel for Appellant,
                                      ALPHONSON MALONE




                                        10
                       CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned

counsel of record certifies that the brief contains 2,905 words.

                                        /s/Gary Tabakman
                                        GARY TABAKMAN


                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing Brief

for Appellant was served via e-mail delivery through eFile.TXCourts.gov to Alan

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

77002 on this the 30th day of December 2014.



                                        /s/Gary Tabakman
                                        GARY TABAKMAN




                                           11
