             PD-0237-15
                                                           April 1, 2015
                N O ._________________

                       IN TH E

          CO URT O F CRIM IN AL APPEALS

                      O F TEXAS



               RH O N ALD M ARTIN EZ
                      Petitioner

                           v.

               THE STATE OF TEXAS
                    Respondent



      Petition is in Cause N o. 1253416D from the
297th Criminal D istrict Court of Tarrant County, Texas,
         and Cause N o. 02-13-00610-CR in the
   Court of Appeals for the Second D istrict of Texas



    PETITIO N FO R D ISCRETIO N ARY REVIEW


                                Abe Factor
                                TBN : 06768500
                                Factor, Cam pbell & Collins
                                Attorneys at Law
                                5719 Airport Freew ay
                                Phone: (817) 222-3333
                                Fax: (817) 222-3330
                                Em ail: law factor@ yahoo.com
                                Attorneys for Petitioner
                                Rhonald M artinez
                      ID EN T IT Y O F PA R T IES A N D C O U N SEL

       The follow ing is a com plete list of all parties to the trial court’s final judgm ent,
as w ell as the nam es and addresses of all trial and appellate counsel.

Trial Court Judge:                 H on. Everett Young

Petitioner:                         Rhonald M artinez

Petitioner’s Trial Counsel:        H on. Abe Factor
                                   TBN : 06768500
                                   Factor, Cam pbell & Collins
                                   Attorneys at Law
                                   5719 Airport Freew ay
                                   Fort W orth, Texas 76117

Petitioner’s Counsel               H on. Abe Factor
on Appeal:                         TBN : 06768500
                                   Factor, Cam pbell & Collins
                                   Attorneys at Law
                                   5719 Airport Freew ay
                                   Fort W orth, Texas 76117
                                   Phone: (817) 222-3333

Appellee:                          The State of Texas

Appellee’s Trial Counsel:          H on. Lisa Callahan
                                   TBN : 01160700
                                   D istrict Attorney’s O ffice
                                   401 W . Belknap
                                   Fort W orth, Texas 76196

Appellee’s Counsel                 H on. Charles M allin
on Appeal:                         TBN : 12867400
                                   H on. Andy Porter
                                   TBN : 24007857
                                   D istrict Attorney’s O ffice
                                    401 W . Belknap Street
                                   Fort W orth, Texas 76196

                                              ii
                                               T A B LE O F C O N T EN TS
                                                                                                                                  page

ID EN TITY O F PARTIES AN D CO UN SEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE O F CO N TEN TS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

IN D EX O F AUTH O RITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEM EN T REGARD IN G O RAL ARGUM EN T. . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEM EN T OF TH E CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEM EN T OF PRO CED URAL H ISTO RY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

GROUN DS FO R REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASO N S FO R REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUM EN T. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.        The Court of Appeals erred when it affirm ed the trial court’s
          denial of M r. M artinez’ m otion to suppress. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

          A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

          B.        Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

          C.        Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

          D.        Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER FO R RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

CERTIFICATE O F CO M PLIAN CE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE O F SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPEN D IX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                                                                  3
                                         IN D EX O F A U T H O R IT IES

Cases                                                                                                              page

M artinez v. State,
       02-13-00610-CR, 2015 W L 392729 (Tex. App.–
              Fort W orth, January 29, 2015, no. pet. h.)
                    (m em . op., not designated for publication). . . . . . . . . . . . . .1-2, 4

Guzman v. State,
     955 S.W .2d 85 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Alberty v. United States,
       162 U.S. 499 (1896). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Brother v. State,
      85 S.W .3d 377 (Tex. App.— Fort W orth 2002,
             affirmed, 166 S.W .3d 255 (Tex. Crim . App. 2005). . . . . . . . . . . . . . . . . 4-5

Carmouche v. State,
     10 S.W .3d 323 (Tex. Crim . App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Crain v. State,
      315 S.W .3d 43 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Derichsweiler v. State,
      348 S.W .3d 906 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Dortch,
      199 F.3d 193 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Hamal v. State,
     390 S.W .3d 302 (Tex. Crim . App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Himmelwright,
      551 F.2d 991 (5th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Jones,
      234 F.3d 234 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                                                             4
United States v. M allides,
      473 F.2d 859 (9th Cir. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

M cQuarters v. State,
     58 S.W .3d 250 (Tex. App.— Fort W orth 2001, pet. ref’d). . . . . . . . . . . . . . . . . .7

United States v. Portillo- Aguirre,
      311 F.3d 647 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Scott v. State,
       549 S.W .2d 170 (Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Sokolow,
      490 U.S. 1 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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

United States v. Valdez,
      267 F.3d 395 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

W ade v. State,
      422 S.W .3d 661 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

W olf v. State,
       137 S.W .3d 797 (Tex. App.— W aco 2004, no pet.). . . . . . . . . . . . . . . . . . . . . 5-6




                                                             5
                ST A T EM EN T R EG A R D IN G O R A L A R G U M EN T

      Because Petitioner does not believe that oral argum ent w ill m aterially assist

the Court in its evaluation of m atters raised by this pleading, Petitioner respectfully

w aives oral argum ent.

                           ST A T EM EN T O F T H E C A SE

      O n O ctober 5, 2011, A ppellant Rhonald M artinez (“M r. M artinez” or

“Petitioner”) w as indicted for possession of a controlled substance m ore than four

gram s but less than tw o hundred grams w ith intent to deliver. (C.R. 6). O n August

1, 2013, a trial on the m erits w as had before the court in the 297th Judicial D istrict

of Tarrant County, Texas. (R.R. III: passim, C.R. 127). Appellant filed a M otion to

Suppress and w as denied by the court. (C.R. 45, 49). At the conclusion of testimony,

the court found the Appellant guilty as charged in the indictm ent. (R.R. III 191). The

court ordered a presentence report be prepared and on D ecember 20, 2013 the

Appellant w as sentenced to 40 years confinem ent in the Texas D epartm ent of

Criminal Justice. (C.R. 156). Appellant filed a tim ely notice of appeal on D ecember

20, 2013. (C.R. 162). The court certified Appellant’s right to appeal. (C.R. 161).

                   STA T EM EN T O F PR O C ED U R A L H IST O R Y

      The opinion by the Second Court of Appeals affirm ing M r. M artinez’

conviction w as handed dow n on January 29, 2015. See M artinez v. State, 02-13-00610-

CR, 2015 W L 392729 (Tex. App.–Fort W orth, January 29, 2015, no. pet. h.) (m em . op.,

                                           1
not designated for publication). This tim ely Petition for D iscretionary review

ensued.

                           G R O U N D S FO R R EV IEW

                         G R O U N D FO R R EV IEW O N E

I.    The Court of Appeals erred w hen it affirm ed the trial court’s denial of M r.
      M artinez’ m otion to suppress.

                              R EA SO N S FO R R EV IEW

1.    The decision by the Second Court of Appeals has decided an im portant

question of state law in a w ay that conflicts with the applicable decisions of the

Court of Crim inal Appeals.

2.    The Second Court of Appeals has so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned such a departure by a low er

court, as to call for an exercise of the Court of Crim inal Appeals’ pow er of

supervision.

                                   A R G U M EN T

                   G R O U N D FO R R EV IEW O N E (R estated)

I.    The Court of Appeals erred w hen it affirm ed the trial court’s denial of M r.
      M artinez’ m otion to suppress.

      Because this petition is predicated upon error by the Second Court of Appeals

in its review of M r. M artinez’ complaint on appeal, a review of the evidence

presented and events w hich transpired below is in order.

                                         2
       A.      Facts

       O n September 1, 2011, Rhonald M artinez w as stopped by O fficer Cade w ith

the Fort W orth Police D epartm ent for an expired registration and defective license

plate light. (R.R. III 8). Officer Cade approached the vehicle and he testified that M r.

M artinez w as acting strange and looked nervous. (R.R. III 13). W hen asked to exit

the vehicle, M r. M artinez left the vehicle running and locked the door. (R.R. III 16).

O fficer Cade asked if he could search the vehicle and he testified that M r. M artinez

consented. (R.R. III 15). O fficer Cade then placed M r. M artinez in the back of the

patrol car. (R.R. III 17) M r. M artinez then w ithdrew his consent prior to the search.

(RR III 15).

       After taking M r. M artinez into custody and subsequent to his w ithdraw al of

consent, a canine unit arrived and did a sw eep around the vehicle and the dog

alerted on the vehicle. (R.R. III 19). Corporal Fineman arrived on scene and got the

locked car door open and found a clear plastic baggie w hich contained w hat

appeared to be m ethamphetam ine under the driver’s seat. (R.R. III 19). Officer Cade

then found additional bags in the glove box. (R.R. III 20).

       O n cross examination, O fficer Cade conceded that after initially approaching

the vehicle and asking for identification, there w as no more conversation about the

expired registration or the license plate light. (R.R. III 40). After a pat dow n search,



                                           3
O fficer Cade found no w eapons. (R.R. III 42). After a visual inspection, O fficer Cade

found no w eapons or anything threatening. (R.R. III 45). Officer Cade detained M r.

M artinez prior to the search and had no further comm unication. (R.R. III 61).

       After hearing testim ony and arguments of counsel, the court denied the

M otion to Suppress. (R.R. III 125). The court also found M r. M artinez guilty as

charged in the indictment. (R.R. III 191). After a presentence report was prepared

and admitted, the court sentenced M r. M artinez to 40 years confinem ent. (R.R. IV

12, C.R. 156).

       B.     O pinion Below

       In its O pinion, the Second Court of Appeals correctly identified the standard

of review to be used w hen analyzing a challenge to the trial court’s denial of a

m otion to suppress, see M artinez, 02-13-00610-CR, 2015 W L 392729 at *1-*2, yet

incorrectly held that the trial court did not abuse its discretion in denying M artinez’

request. See id. at *3.

       C.     Standard of Review

       W hen review ing a trial court’s decision to deny a motion to suppress, an

appellate court should afford almost total deference to the trial court’s ruling of the

historical facts that are supported by the record. Guzman v. State, 955 S.W .2d 85, 89

(Tex. Crim. App. 1997). W hen the m aterial facts are not in dispute, an appellate court

should review m atters of law de novo. Carmouche v. State, 10 S.W .3d 323, 327 (Tex.

                                          4
Crim . App. 2000); Brother v. State, 85 S.W .3d 377, 380-81 (Tex. App.— Fort W orth

2002, affirmed, 166 S.W .3d 255 (Tex. Crim. App. 2005)).

      D.     Discussion

             O nce the purpose of a law ful detention has terminated, extending the

detention is a violation of the Fourth Am endment unless the detaining officer has

additional reasonable suspicion of criminal w rongdoing. United States v. Portillo-

Aguirre, 311 F.3d 647, 655 (5th Cir. 2002). Reasonable suspicion must be based on

articulable facts that are indicative of criminal activity. Terry v. Ohio, 392 U.S. 1, 21-

22 (1968); Derichsweiler v. State, 348 S.W .3d 906, 914 (Tex. Crim. App. 2011). Actions

that are as indicative of non-criminal activity as criminal activity cannot be the basis

of reasonable suspicion w hen view under the totality of the circumstances. United

States v. Sokolow, 490 U.S. 1 (1989); W ade v. State, 422 S.W .3d 661, 668 (Tex. Crim.

App. 2013). The test as to whether or not an extended detention violates the

Fourth Am endm ent is 1) w hether or not the detention w as justified from its

inception and 2) w hether or not the scope of the detention w as related to the

circumstances that justified the initial detention. Terry, 392 U.S. at 19-20; United

States v. Valdez, 267 F.3d 395, 398 (5th Cir. 2001). To go further, the officer must

develop additional reasonable suspicion to justify extending the detention.

      Granted M r. M artinez w as not detained very long, but the amount of time a



                                           5
person is detained after the purpose for the detention is effectuated is irrelevant.

Portillo-Aguirre, 311 F.3d at     647, W olf v.   State,   137 S.W .3d 797, 800 (Tex.

App.— W aco 2004, no pet.); United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000);

United States v. Dortch, 199 F.3d 193, 199-200 (5th Cir. 1999). As soon as the

investigation into M r. M artinez’s registration and license plate lamp ended, the

purpose w as effectuated.

      H ere, the actions of M r. M artinez did not justify an extension of the detention.

After the first few questions that the officer asked M r. M artinez, the investigation

into the reason for the detention ended. (R.R. III 40). It w as at that point O fficer

Cade decided to call the canine unit. (R.R. III 17). O fficer Cade at this point did not

have reasonable suspicion to continue the detention because he testified to no

articulable facts that were indicative of criminal activity. The facts testified to by

O fficer Cade that he believed gave him reasonable suspicion w ere: 1) at the

initiation of the traffic stop, M r. M artinez rolled dow n his window and rolled it back

up, 2) he w as nervous, 3) he stepped out of the vehicle and shut the door while

locking it, and 4) he w as in a “high crime” neighborhood. (R.R. III 13, R.R. III 14).

      Articulable Facts – The W indow

      O fficer Cade testified that M r. M artinez rolled dow n his w indow , rolled it

back up and told him that the w indow w as broken and opted to open the door. (R.R.



                                           6
III 10). This w as somehow suspicious to O fficer Cade. (R.R. III 11). This is in no

w ay indicative of criminal activity. Rolling dow n the w indow and rolling it back up

does not mean it is not broken. It could have been off the tracks or the mechanism

m ay be less than functional. It is in no w ay even untruthful to roll a w indow dow n

and back up and think that is broken. It is a com mon experience to roll dow n a car

w indow and think that it is somehow m alfunctioning and so the w indow is rolled

up to prevent further damage. The proposition that rolling the w indow back up is

an attempt to hide som ething does not hold w ater w hen M r. M artinez opted to open

the door completely. (R.R. III 10). This action is completely innocent and should not

have been alarming to any reasonable person. And it is certainly not indicative of

criminal activity.

Articulable Facts – Nervous Demeanor

      N ervousness during a police encounter is not suspicious or indicative of

criminal activity. Although it can be used a factor to determine reasonable

suspicion, it is a w eak factor in determining w hether or not there are hidden

narcotics. Hamal v. State, 390 S.W .3d 302, 308 (Tex. Crim . App. 2012); M cQuarters v.

State, 58 S.W .3d 250, 257 (Tex. App.— Fort W orth 2001, pet. ref’d). It is also a

comm on experience to exhibit nervousness w hen pulled over by the police, even if

the only crim e com m itted w as a traffic violation. Justice Brow n put it very



                                          7
eloquently in 1896 w hen discussing the view of actions certain people m ake w hen

faced w ith law enforcem ent:

      “… it is not universally true that a man, who is conscious that he has done a
      w rong, "will pursue a certain course not in harmony w ith the conduct of a
      man w ho is conscious of having done an act w hich is innocent, right and
      proper;" since it is a m atter of com m on know ledge that m en w ho are entirely
       innocent do som etim es fly from the scene of a crime through fear of being
             apprehended as the guilty parties, or from an unw illingness to appear
      as w itnesses. N or is it true as an accepted axiom of criminal law that "the
      w icked flee w hen no m an pursueth, but the righteous are as bold as a lion.”

Alberty v. United States, 162 U.S. 499, 511 (1896). Also either act of nervousness or

calm have been construed as suspicious. United States v. Him m elw right, 551 F.2d

991,992 n.2 (5th Cir. 1977), United States v. M allides, 473 F.2d 859, 861 (9th C ir.

1973)(officer testified that the defendant’s calm dem eanor was suspicious).

W hen it com es to general physical states such as nervousness or calmness, the

interpretation is not based upon objective standards but as perceived through the

eyes of the observer. As a ham m er, everything appears to be a nail because a

ham m er’s only job is to hit nails. W hen consulting a surgeon, the surgeon’s likely

treatm ent w ill be surgery because that is the subjective view of a surgeon. The

same goes for law enforcem ent. Law enforcem ent’s job is to enforce the law s and

control crim e. An officer is going to view either nervousness or calm ness as

indicative of criminal activity based upon that officer’s predisposed desire to

preform effectively and stop crime. That is w hy a suspect’s dem eanor is not


                                         8
helpful in developing reasonable suspicion because it is not an objective articulable

fact indicative of criminal activity.

Articulable Facts – The Door

      Stepping out of the vehicle and locking the door is also not indicative of

criminal activity. The State argued at trial that this w as an indication that M r.

M artinez w as hiding something illegal. The State was sim ply m aking jum ps in logic.

Even though there w as some debate as to w hether or not locking the door w as

intentional since Corporal Finem an opened it easily, locking and shutting the door

is an attempt to keep the police from entering the vehicle. (R.R. III 19). That w as an

absolute Constitutional right that M r. M artinez had. And if he did lock it

intentionally, he w as w ell w ithin his right to do so. So the State w as essentially

arguing that his assertion of his rights w as indicative of criminal activity. That is in

the sam e vein as “if he refused to speak w ith the police, he must have som ething to

hide.” Arguing that one’s exercise of rights is a basis for criminal activity has long

been frow ned upon. Exercise of rights cannot be used as a tipping point to give an

officer reasonable suspicion. W ade, 422 S.W .3d at 669.

      Articulable Facts – High Crime Area

      The level of criminal activity in the area is not in and of itself indicative of

criminal activity. Scott v. State, 549 S.W .2d 170, 172–73 (Tex. Crim. App. 1976); Crain

v. State, 315 S.W .3d 43, 53 (Tex. Crim . App. 2010). It merely poses as a backdrop and

                                            9
using it as a strong factor w ould devalue the rights of those that live in a high crim e

neighborhood.

      Totality of the Circumstances

      W hen view ing these factors under the totality of the circumstances, O fficer

Cade did not have reasonable suspicion to extend the detention. M r. M artinez w as

nervous and exercised his rights in a high crim e neighborhood. There is nothing at

all suspicious about that. It is not surprising that those in a high crim e neighborhood

have multiple encounters w ith police that are not always justified or appropriate.

Given the circum stances of where he w as, he had every right to be nervous and

keep the police from entering his vehicle. The record is void of any evidence that

M r. M artinez w as rude or posed a threat or did anything untow ard. H e w as simply

nervous and did not w ant the police to search his vehicle. But that was somehow

odd to O fficer Cade, and even if it w as odd it w as not indicative of criminal activity.

The very heart of the Fourth Am endment is the right to keep the government from

detaining a p e r s o n or riffling through one’s possessions w ithout justification.

      The actions taken by M r. M artinez and perceived by O fficer Cade did not

rise to the level of reasonable suspicion. They only provided the officer w ith a

m ere hunch. Therefore the trial court erred in finding that there w as reasonable

suspicion and denied M r. M artinez’ motion to suppress. Further, the Second Court



                                           10
of Appeals erred w hen it affirm ed the trial court’s denial.

                               PR A Y ER FO R R ELIEF

W H EREFO RE, PREM ISES CO N SID ERED , Petitioner respectfully prays that this

Court grant discretionary review and allow each party to fully brief and argue the

issues before the Court of Criminal Appeals, and that upon review ing the judgm ent

entered below , that this Court reverse the opinion of the Second Court of Appeals.

                                        Respectfully subm itted,

                                         /s/A be Factor
                                        Abe Factor
                                        TBN : 06768500
                                        Factor, Cam pbell & Collins
                                        Attorneys at Law
                                        5719 Airport Freew ay
                                        Fort W orth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Em ail: law factor@ yahoo.com
                                        Attorneys for Petitioner
                                        Rhonald M artinez

                        C ER T IFIC A T E O F C O M PLIA N C E

      I hereby certify that the w ord count for the portion of this filing covered by
Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 3,172.

                                        /s/A be Factor
                                        Abe Factor




                                          11
                          C ER T IFIC A TE O F SER V IC E

      I hereby certify that a true and correct copy of the foregoing instrum ent has
been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant
County D istrict Attorney by a m anner com pliant w ith the Texas Rules of Appellate
Procedure, on this 1st day of A pril , 2015.

                                      /s/A be Factor
                                      Abe Factor




                                        12
                                  A PPEN D IX

1. O pinion of the Second Court of Appeals




                                      13
