                                                                                      ACCEPTED
                                                                                 03-14-00155-CR
                                                                                        3779406
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                           1/15/2015 11:13:33 AM
                                                                                JEFFREY D. KYLE
                                                                                          CLERK
                         NO. 03-14-0155-CR

                                                                FILED IN
                                                         3rd COURT OF APPEALS
                               * * *                          AUSTIN, TEXAS
                                                         1/15/2015 11:13:33 AM
                          In The 3rd District                JEFFREY D. KYLE
                                                                  Clerk
                       Court of Appeals of Texas

                               * * *

                         Jeron DeAngelo Neal

                                  v.

                          The State of Texas

                               * * *

                            Appealed from the
                            390th District Court
                Trial Court Cause No. D-1-DC-12-205121

___________________________________________________________________

                        APPELLANT’S BRIEF
___________________________________________________________________

                                John S. Butler
                                State Bar No. 03526150
                                700 Lavaca Street, Suite 1400
                                Austin, Texas 78701
                                Telephone (512) 472-3887
                                Facsimile (512) 233-1787
                                Email     butler@lawyer.com
                                ATTORNEY FOR APPELLANT



                  ORAL ARGUMENT REQUESTED
                        Identities of Parties and Counsel



Appellant:                                   Jeron DeAngelo Neal

Trial Counsel:                               Darla Davis
                                             P O Box 28338
                                             Austin, Texas 78755
                                                   -and-
                                             Mark Sampson
                                             605 West Oltorf Street
                                             Austin, Texas 78704

Appellee:                                    The State of Texas

Appellant Counsel and
Trial Counsel:                               Rosemary Lehmberg
                                             Travis County District Attorney
                                             P O Box 1748
                                             Austin, Texas 78767
                                                   -by-
                                             Monica Flores
                                                   -and-
                                             Steve Brand
                                             Assistant District Attorneys

Trial Judge:                                 Hon. Julie Kocurek




                                       -2-
                                  Table of Contents

Identity of Parties and Counsel                       …2

Table of Contents                                     …3

Index of Authorities                                  …4

Statement Regarding Oral Argument                     …4

Statement of the Case                                 …4

Issues Presented                                      …5

Statement of the Facts                                …5

Summary of the Argument                               …7

Argument                                              …7

Prayer for Relief                                     …10

Certificate of Compliance                             …12

Certificate of Service                                …12




                                         -3-
                               Index of Authorities

Wong Sun v. United States, 371 U.S. 471 (1963)                         …9

Silverthorne Lumber Co. v. United States,
251 U.S. 385,392 (1920).                                               …9

Weeks v. United States, 232 U.S. 383 (1914).                           …9

State v. Story, Tex. Crim. App. NO. PD-0590-13 (October 15, 2014)      …10

Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008).             …10


                      Statement Regarding Oral Argument


      Due to the fact-intensive nature of the arguments presented herein,

Appellant requests that the Court hear oral argument.


                              Statement of the Case

      On September 28, 2012, Appellant was arrested for Aggravated Robbery with

a Deadly Weapon. At a pretrial hearing the trial court granted Appellant’s motion to

suppress evidence seized from Appellant’s vehicle. However, the trial court denied

Appellant’s motion to suppress evidence seized from Appellant’s person at the

scene and at the central booking facility.     The case went to trial, whereupon

Appellant was found guilty and sentenced to 22 ½ years in prison. Appellant




                                        -4-
appeals the trial court’s denial of his motion to suppress evidence seized from his

person, and the judgment and sentence obtained with the use of said evidence.



                                 Issues Presented


      The trial court erred in denying Appellant’s motion to suppress evidence

obtained in the search of Appellant’s person.




                                Statement of Facts

      On September 28, 2012, at around 2:00 a.m., Alicia Otto and three friends

were at a sports bar in north Austin when a man, later identified as Appellant,

approached their table and demanded their money and property. The man grabbed

Mr. Otto’s purse and ran away. A bartender pursued the man, but turned back when

he heard a gunshot. The police interviewed the victim and witnesses, and obtained

surveillance videos from the bar and a nearby Target store. This second video

shows the robber getting into a black SUV.

      Later that morning, around 8:00 a.m., police responded to a “disturbance”

call. Patsy Harnage (Appellant’s mother) had reported that she and her son had




                                         -5-
gotten into an argument the previous day, and that he was parked in front of a

daycare center where she worked. Upon arrival at the location, they had “minimal

information on what the subject was wearing or driving, et cetera.” (Reporter’s

Record vol.2 p.57). The police saw no disturbance, and were initially unable to

locate either Ms. Harnage or her son. They eventually located a black male in a

black Ford Explorer. When they approached the SUV, they found Appellant asleep

in the driver’s seat and another person asleep in the back. When the officer tapped

on the window to gain Appellant’s attention, Appellant woke up “kind of nervous”

(Reporter’s Record v.2 p.27) and tried to start the vehicle. The officer then opened

the door had Appellant exit the vehicle. The officer said he saw a hand rolled

cigarette drop from Appellant’s hand. The officer frisked Appellant for weapons,

finding none. Appellant was handcuffed and placed in in the back of a patrol unit.

Appellant was later arrested for possession of marijuana and for outstanding

warrant(s) and taken to jail, where he was searched. Several credit cards were found

in his possession, with the name of the robbery victim on them. These were

subsequently introduced as evidence against Appellant at his trial.

      A jury convicted Appellant of Aggravated Robbery with a Deadly Weapon,

and sentenced him to 22 ½ years in prison.




                                         -6-
                             Summary of the Argument


      There was insufficient probable cause for Appellant’s arrest, and therefore

any evidence seized as a result thereof was illegally obtained. The trial court erred in

denying Appellant’s motion to suppress the evidence seized from Appellant.

                                      Argument


      Justin Flanery of the Austin Police Department was Appellant’s arresting

officer. His testimony as to his reasons for arresting Appellant lacked credibility,

contradicting his own testimony, testimony of other witnesses, and the information

provided to him by other police officers. The arresting officer was incorrect in

stating that there was an outstanding warrant for Appellant’s arrest. There was

insufficient evidence to support the arresting officer’s conclusory statement that

Appellant possessed a marijuana cigarette.

      At one point he testified that Appellant’s mother (who initially called the

police) said she saw Appellant with a gun (Reporter’s Record v.2 p.18). He later

testified that she told him “her husband saw [Appellant] with at her house

yesterday.” (Reporter’s Record v.2 p.57).

      The officer testified that he spoke with Appellant’s mother before detaining

Appellant. (Reporter’s Record v.2 p.23) and that she pointed out her son to the



                                          -7-
officer: “Question: So she actually put eyes on the vehicle and told you, ‘That’s his

vehicle?’ Answer: Yes.” (Reporter’s Record v.2 p.26). He later testified that he

detained Appellant before ever speaking with Appellant’s mother (v.2 p.58).

       The officer testified that his department’s Computer Aided Dispatch (CAD)

confirmed that there was an active warrant for Appellant’s arrest (Court Reporter’s

Record v.2 pp.32-33), but later testified that there was in fact no such confirmation,

or any indication of a warrant in the CAD report (Reporter’s Record v.2 pp. 50 and

62).

       James Hyatt, an Austin Police Department officer who investigated the

robbery, testified that the witnesses saw the robber “get into a black Jeep Liberty

and leave the scene.” (Reporter’s Record v.2 p. 13). The arresting officer testified

that, based on the CAD report, “All’s we got was a black male in a black SUV.”

(Reporter’s Record v.2 p. 18). He testified that this was later updated to a black Ford

Explorer (Reporter’s Record v.2 pp.44 and 53). Nonetheless, he testified that he was

looking for a black Suburban (Reporter’s Record v.2.p.20). He found Appellant in a

Ford Explorer (Reporter’s Record v.2 p.57).

       Officer Flanery testified that, when he first observed Appellant with a hand

rolled cigarette in his hand, he couldn’t determine if it was marijuana or tobacco




                                          -8-
(Reporter’s Record v.2 pp.28 and 61-61). He also testified that he detected a

“moderate whiff” of marijuana.” (Reporter’s Record v.2 pp.28-29).             Officer

Flanery’s statement that “from [his] training and experience [he] know[s] how

[marijuana] looks and smells” (reporter’s Record v.2 p. 28) was not supported by

any evidence, provided through Officer Flanery or any other witness.

      The arresting officer’s testimony was contradictory about what he was told

and what he observed regarding Appellant and Appellant’s vehicle. It was

contradictory about whom he talked to and when. His testimony about why he

arrested Appellant was shown to be incorrect and insufficient to provide probable

cause for Appellant’s arrest.

      The United States Supreme Court has consistently held “that evidence seized

during an unlawful search could not constitute proof against the victim of the

search”. Wong Sun v. United States, 371 U.S. 471,484 (1963), citing Weeks v.

United States, 232 U.S. 383 (1914). “The essence of a provision forbidding the

acquisition of evidence in a certain way is that not merely evidence so acquired

shall not be used before the Court but that it shall not be used at all.” Silverthorne

Lumber Co. v. United States, 251 U.S. 385,392 (1920).




                                         -9-
       “An officer has probable cause when he has knowledge of facts that

would lead a reasonable person to believe that the suspect has committed a

crime or will soon do so.” State v. Story, Tex. Crim. App. NO. PD-0590-13, at

8 (Tex.Crim.App. October 15, 2014), citing Neal v. State, 256 S.W.3d 264, 280

(Tex. Crim. App. 2008). In this case, the arresting officer lacked credibility

and his knowledge of Appellant’s possession of marijuana was

unsupported by any evidence that he possessed the knowledge or skills to

make such a determination. . Further, his knowledge of any outstanding

warrant(s) for Appellant’s arrest was, by his own testimony, incorrect.

                             PRAYER FOR RELIEF

       WHEREFORE, Appellant prays this Court grant the request, and reverse the

trial court’s denial of Appellant’s Motion to Suppress Evidence, reverse the

judgment and sentence of the trial court, and remand the case to the trial court for a

new trial. Appellant further requests any and all such other relief to which he may be

entitled.




                                         -10-
       Respectfully submitted,




       John S. Butler

       ATTORNEY FOR APPELLANT
       700 Lavaca Street, Suite 1400
       Austin, Texas 78701
       Telephone (512) 472-3887
       Facsimile (512) 233-1787
       STATE BAR #03526150




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                       CERTIFICATE OF COMPLIANCE

   As Attorney of Record for Appellant, I do hereby certify that this document
contains 1,641 words, as determined by Microsoft Word 2010, the computer
program used to prepare the document.


                                      Date: January 15, 2015




                                      JOHN S. BUTLER
                                      Attorney for Appellant


                          CERTIFICATE OF SERVICE

   As Attorney of Record for Appellant, I do hereby certify that a true and correct
copy of this Appellant’s Brief was this date provided to the District Attorney of
Travis County, Texas, via U.S. Mail to the following address:

Rosemary Lehmberg
Travis County District Attorney
Appellate Section
PO Box 1748
Austin, Texas 78767
                                      Date: January 15, 2015




                                      JOHN S. BUTLER
                                      Attorney for Appellant




                                       -12-
