                                                                     ACCEPTED
                                                                 01-14-00444-CR
                                                      FIRST COURT OF APPEALS
                                                              HOUSTON, TEXAS
                                                            5/28/2015 9:29:01 PM
                                                           CHRISTOPHER PRINE
                                                                          CLERK

           NO. 01-14-00444-CR
________________________________________
                                                FILED IN
                                         1st COURT OF APPEALS
                    In the                   HOUSTON, TEXAS
             Court of Appeals            5/28/2015 9:29:01 PM
                  For the                CHRISTOPHER A. PRINE
           First District of Texas               Clerk
                 At Houston
________________________________________

  On appeal from the 248th District Court of
           Harris County, Texas
                No. 1421756
________________________________________

         BLAKE ALAN COTTON,
               Appellant
                  v.
         THE STATE OF TEXAS,
               Appellee


         BRIEF FOR APPELLANT


                Emily Detoto
          State Bar No.: 00797876
           917 Franklin, 4th Floor
           Houston, Texas 77002
         Telephone: (713) 227-2244
         Facsimile: (713) 222-5840
           emilydetoto@mac.com

            Counsel for Appellant




    ORAL ARGUMENT REQUESTED
                        Identity of Parties and Counsel

Appellate Counsel for Appellant, Mr. Blake Alan Cotton

Emily Detoto
State Bar No.: 00797876
917 Franklin, 4th Floor
Houston, Texas 77002
Telephone: (713) 227-2244
Facsimile: (713) 222-5840
emilydetoto@mac.com

Counsel for Appellant

Appellate Counsel for Appellee, The State of Texas

Ms. Devon Anderson
District Attorney

Mr. Alan Curry, Assistant—Appeal

Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5800

Trial Counsel for Appellant, Mr. Blake Alan Cotton

Mr. Randy Schaffer, Motion for New Trial
State Bar No.: 17724500
1301 McKinney, Suite 3100
Houston, Texas 77010
Telephone: (713) 951-9555

Jacqueline Gifford, Guilty Plea
State Bar No.: 12158550
1302 Waugh Drive
Houston, Texas 77019
Telephone: (713) 529-3825



                                      ii
Trial Counsel for Appellee, The State of Texas

Ms. Devon Anderson
District Attorney

Mr. Justin Keith Wood, Assistant—Motion for New Trial
State Bar No.: 24039247

Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5800




                                      iii
                            Table of Contents

                                                                    Page(s)

Identity of Parties and Counsel…………………………………………………ii

Index of Authorities……………………………………………………………vi

Statement of the Case……………………………………………………………1

Issue Presented…………………………………………………………………..1

Statement of Facts……………………………………………………………….2

Summary of the Argument……………………..………………………………..7

Argument………………………………………………………………………...8

Issue Number One…………………………………………………………….....8

     MR. COTTON’S GUILTY PLEA WAS INVOLUNTARY BECAUSE
     HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
     THEREFORE, THE TRIAL COURT ABUSED ITS DISCRETION
     BY DENYING MR. COTTON’S MOTION FOR NEW TRIAL.

  A. Standard of Review………………………………….................................8

  B. An Involuntary Plea is Invalid……………………………………………9

  C. Ineffective Assistance of Counsel Standard..…………………………....10

  D. Defense Counsel Failed to Recognize a Critical Legal Issue and did not
     Advise Mr. Cotton That a Motion to Suppress Should be Filed on his
     Behalf…………………………………………………………...……….11

        a. Mr. Cotton was Detained, Thus the Fourth Amendment was
           Implicated………………………………………………………..14

        b. Officer Burnett did not Have Reasonable Suspicion to Lawfully
           Detain Mr. Cotton………………………………………………...17

                                    iv
     c. Mr. Cotton’s Statements to Officer Burnett Were Fruits of the
        Illegal Detention and Should Have Been Suppressed, Thus
        Preventing the State From Proving its Case Against Mr. Cotton...21

     d. Mr. Cotton was Prejudiced and Would not Have Entered a Guilty
        Plea but for his Counsel’s Deficient Performance………………..23


 E. Conclusion……………………………………………………………….23

Prayer………………………..……………..………………………………..….24

Certificate of Service…………………………………………………..……….24

Certificate of Compliance………………………………………………………25




                                  v
                          Index of Authorities

                                                                  Page(s)

Statutes

Tex. Code Crim. Proc. Art. 38.23(a)…………………………………….…21, 22

Tex. R. App. Proc. § 9.4………………………………………………………..25

Federal Cases

Brady v. United States, 397 U.S. 742 (1970)……………………………...…….9

Rompilla v. Beard, 545 U.S. 374 (2005)………………………………...…10, 12

Strickland v. Washington, 466 U.S. 668 (1994)………………………..10, 11, 23

Terry v. Ohio, 392 U.S. 1 (1968)……………………………………….………18

United States v. Cronic, 466 U.S. 648 (1984)…………………………...……..13

United States v. Mendenhall, 446 U.S. 544 (1980)…………………………….16

Wiggins v. Smith, 539 U.S. 510 (2003)………………………………...…..10, 12

Williams v. Taylor, 529 U.S. 362 (2000)……………………………….………10

Wong Sun v. United States, 371 U.S. 471, 484 (1963)…………………………22

Texas Court of Criminal Appeals

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002)……………………….10

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010)…………..16, 17, 18, 19

Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997)……………………..18

Ex parte Aviles, AP-75,616, 2007 WL 474968 (Tex. Crim. App.
Feb. 14, 2007)………………………………………………………………….14

                                   vi
Ex Parte Burns, 601 S.W.2d 370 (Tex. Crim. App. 1980)(en banc)…………..9

Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980),
overruled on other grounds by Hernandez v. State, 988 S.W.2d
770 (Tex. Crim. App. 1999)……………………………………………...…….12

Ex Parte Gallegos, 511 S.W.2d 510 (Tex. Crim. App. 1974)…………….……13

Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999)………………..11, 23

Ex Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012)………….….9

Ex Parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998)………………..…..11

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005)…………..……….17, 18

Riley v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012)………………..……….9

State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011)……………….………17

State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011)………………15, 16

Thornton v. State, 145 S.W.3d 228 (Tex. Crim. App. 2004)…………….…….22

Texas Intermediate Appellate Courts

Acosta v. State, 411 S.W.3d 76 (Tex. App.—Houston [1st Dist.]
2013, no pet.)……………………………………………………………………9

Booth v. State, 725 S.W.2d 521 (Tex. App.—Tyler 1987, pet. ref'd)…….……13

Brock v. State, 14-06-00128-CR, 2007 WL 2367262 (Tex.
App.—Houston [14th Dist.] Aug. 21, 2007, pet. ref'd)…………..…………….15

Castellano v. State, 49 S.W.3d 566 (Tex. App.—Corpus Christi
2001, pet. ref'd)…………………………………………………………..……..20

Gamble v. State, 8 S.W.3d 452 (Tex. App—Houston [1st Dist.]
1999, no pet.)…..……………………………………………………………….19



                                  vii
Labib v. State, 239 S.W.3d 322 (Tex. App.—Houston [1st Dist.]
2007, no pet.)……………………………………………………………….11, 23

Lopez v. State, 428 S.W.3d 271 (Tex. App.—Houston [1st Dist.]
2014), pet. ref’d (June 11, 2014)………………………………………….8, 9, 10

Lopez v. State, 01-13-01079-CR, 2015 WL 832059 (Tex.
App.—Houston [1st Dist.] Feb. 26, 2015, no. pet. h.)…………………………13

Ochoa v. State, 717 S.W.2d 174 (Tex. App.—Houston [1st Dist.]
1986, pet. ref'd)…………………………………………………………….…..20

Odelugo v. State, 01-12-00521-CR, 2015 WL 1062560 (Tex.
App.—Houston [1st Dist.] Mar. 10, 2015, no. pet. h.)……………………...….23

Pope v. State, 695 S.W.2d 341 (Tex. App.—Houston [1st Dist.]
1985, pet. ref'd)…………………………………………………………………22

Sanders v. State, 715 S.W.2d 771 (Tex. App.—Tyler 1986, no pet.)…….……13

Sanders v. State, 992 S.W.2d 742 (Tex. App.—Amarillo 1999, no pet.)……...21

St. George v. State, 197 S.W.3d 806 (Tex. App.—Fort Worth 2006)
aff'd, 237 S.W.3d 720 (Tex. Crim. App. 2007)………………………...………22

Starz v. State, 309 S.W.3d 110 (Tex. App.—Houston [1st Dist.]
2009, pet. ref'd)…………………………………………………………..……..13

Other

ABA Standards For Criminal Justice, The Defense Function,
Part III, Standard 4-3.3(c)(v)…………………………………………………...12

ABA Standards For Criminal Justice, The Defense Function,
Part III, Standard 4-3.7(f)………………………………………………………12




                                   viii
                                    Statement of the Case

          Appellant, Blake Alan Cotton, was charged by complaint with the felony

offense of burglary of a building on March 20, 2014. (CR at 21)1. Mr. Cotton

entered a guilty plea with a punishment agreement for six months in a state jail

facility, which the trial court accepted and assessed on March 25, 2014. (SE32,

RR at 202-09). Mr. Cotton filed a Motion for New Trial on April 16, 2014,

alleging an involuntary plea of guilty. (CR at 4-16). A hearing on the Motion

for New Trial was conducted on May 19, 2014. (RR at 1). The trial court

denied the motion on May 28, 2014. (CR at 13, 22). Mr. Cotton timely filed a

Notice of Appeal on May 28, 2014, and the trial court certified Mr. Cotton’s

right to appeal the denial of the Motion for New trial on May 28, 2014. (CR at

16-17, 22). Mr. Cotton’s brief is due on Thursday, May 28, 2015.

                                        Issue Presented


      1. MR. COTTON’S GUILTY PLEA WAS INVOLUNTARY BECAUSE
         HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
         THEREFORE, THE TRIAL COURT ABUSED ITS DISCRETION BY
         DENYING MR. COTTON’S MOTION FOR NEW TRIAL.




1
    CR refers to Clerk’s Record; RR refers to Reporter’s Record.
2
    SE refers to State’s Exhibit; DE refers to Defendant’s Exhibit.


                                                 1
                              Statement of Facts

      Mr. Cotton was charged with burglary of a building on March 20, 2014.

(CR at 21). Five days later and while in custody, Mr. Cotton met his appointed

defense lawyer, Ms. Jacqueline Gifford, at his first court setting. (RR at 65-66,

73, 139-40). At the time, Mr. Cotton was 19 years old and currently serving a

deferred adjudication probation for burglary of a building in Galveston County.

(RR at 67-68, 138). Within two hours of Ms. Gifford’s arrival in the courtroom,

Mr. Cotton pleaded guilty to burglary of a building and received a six-month

state jail sentence. (RR at 79). Ms. Gifford reviewed the offense report and saw

no legal issues or defenses. (RR at 73-74). Mr. Cotton’s father had told Ms.

Gifford he would be in court; unfortunately, he was stuck in the security line to

the building and made it to the courtroom after the plea had already occurred.

(RR at 76, 79-81).

      Mr. Cotton filed a Motion for New Trial on April 16, 2014, alleging an

involuntary plea of guilty. (CR at 4-16). A hearing on the Motion for New Trial

was conducted on May 19, 2014. (RR at 1).

                          The Detention of Mr. Cotton

      Officer Chad Burnett was dispatched to 1410 Beech Cove, La Porte,

Texas around 12:46 a.m. on March 20, 2014. (RR at 8; DE1, RR at 185).

Officer Burnett met with the caller, Ms. Mongiello, who thought she saw a man



                                       2
in her backyard. (RR at 9). There was no other description beyond that. Id.

There was no description of a vehicle being involved. (RR at 10). Officer

Burnett saw some tools stacked up behind a different house, 1409 South 8th

Street, so he knocked on the door and no one answered. (RR at 11-13). He did

not know if the owner or someone with his consent had left the tools out, or if

they even came from the owner’s backyard. (RR at 12-13). Officer Burnett

then saw a truck pull into the driveway at 1422 Beech Cove, which is

approximately three to four houses away from the initial caller’s house. (RR at

13; DE3, RR at 192; DE4, RR at 194; DE5, RR at 196; SE1, RR at 200). Mr.

Cotton got out of the truck and Officer Burnett asked if he lived there. (RR at

16). Mr. Cotton said, “No,” and turned and walked away. Id. Officer Burnett

was in uniform and he had a gun and night stick that were “visible.” (RR at 18).

He told Mr. Cotton to stop, but Mr. Cotton kept walking so he told him to stop a

second time. (RR at 17). Mr. Cotton then stopped and turned around. (RR at

18). Officer Burnett testified to the following regarding the stop:

      Q. And did he have the right to ignore you and continue to walk away

      from you—from you?

      A. I would say no because I was—I—then, once he advised he does not

      live there, raised my suspicions. And I was then questioning him.

(RR at 17).



                                         3
Officer Burnett then claimed that this was not a detention while acknowledging

that he intended for Mr. Cotton to stop and speak with him:

      Q. Did you intend for him to take it as an order?

      A. No—I mean, yes. Yes, I did.

      Q. No or yes? Which is it?

      A. Yes.

      Q. All right. So, you intended for him to take it as an order; and he did

      take it as an order, correct?

      A. I intended for him to come talk to me.

      Q. You intended for him to stop and talk to you?

      A. Correct.

(RR at 20-21).

      Officer Burnett did not advise Mr. Cotton of his rights before he started

questioning him about anything. (RR at 23). Mr. Cotton advised that he knew

Ms. Mongiello and was going to her house. (RR at 23). Officer Burnett then

left Mr. Cotton with another officer because he was not free to leave, in order to

ask Ms. Mongiello if she knew Mr. Cotton. (RR at 23-24). Officer Burnett

spoke with Ms. Mongiello, who advised that she knew Mr. Cotton but he was

not coming over.      (RR at 24-26).        Officer Burnett then spoke with the

homeowner at 1409 South 8th Street, Andrew Pavelko, who told him the tools



                                        4
were his and he did not give anyone permission to remove them. (RR at 26-27).

Upon further questioning, Mr. Cotton then admitted to Officer Burnett that he

had taken the tools out of the shed. (RR at 27). Mr. Cotton later made the same

admission on video in Officer Burnett’s patrol car. (RR at 28). On cross-

examination, Officer Burnett told the prosecutor that this was a residential

neighborhood and there was not any other traffic near 1410 Beech Cove at that

time of night. (RR at 34). On re-direct, Officer Burnett acknowledged that Mr.

Cotton’s confessions were made as a result of the initial detention. (RR at 45-

46).

       During argument at the Motion for New Trial hearing, the prosecutor

agreed that a detention had occurred. (RR at 170).

                            Ms. Gifford’s Testimony

       The majority of Ms. Gifford’s practice is criminal court appointments,

averaging about 400 cases per year. (RR at 49, 52). Ms. Gifford had not

participated in a suppression hearing in the previous five years, and her last

felony trial as a first chair was four years earlier. (RR at 51-53). On March 25,

2014, Ms. Gifford read the offense report in Mr. Cotton’s case for the first time.

(RR at 65-66). She learned that he was on probation for burglary of a building

in Galveston County, but did not check anything other than the state’s file. (RR

at 68, 70). Ms. Gifford did not believe that Mr. Cotton had any legal defenses to



                                        5
the charge, including any basis to exclude his oral statements. (RR at 73-74,

100). She did not advise Mr. Cotton that he could file a motion to suppress his

oral statements. (RR at 100). Ms. Gifford testified that she told Mr. Cotton the

state was offering six months in state jail, but that he should reset the case until

the pending Galveston case was resolved. (RR at 78-79). She also testified that

Mr. Cotton was insistent on resolving the case that day, and that she did not call

Galveston County before the plea. (RR at 79, 81-84).

      Ms. Gifford testified that she believed Officer Burnett had reasonable

suspicion for the detention of Mr. Cotton and that the state provided her with a

case for the hearing and said, “Read Sanders because we’re going to use it.”

(RR at 110, 120-21). Ms. Gifford also testified to her understanding of the law:

      Q. Tell me: Can a police officer legally approach a citizen and ask

      questions?

      A. It depends on the circumstances.

      Q. Under what circumstances could a police officer not do that?

       A. Where there wasn't a suspicious circumstance, where he wasn't just

      called out for a possible burglary.

      Q. So, you're saying an officer can't just walk up to somebody and start

      asking questions for no reason at all?




                                         6
      A. I don't believe he can unless -- well, if the person wants to answer

      them, yes.

      Q. Do you know what that's called from a legal standpoint?

      A. No.

      Q. You heard of a "consensual encounter"?

      A. Oh, "consensual encounter", yes.

(RR at 86-87).

                            Mr. Cotton’s Testimony

      Mr. Cotton testified that when Officer Burnett told him to stop he thought

he had to comply. (RR at 138-39). Mr. Cotton also testified that he did not tell

Ms. Gifford that he was in a hurry to resolve the case, and she did not advise

him of any legal defenses. (RR at 141-43). Mr. Cotton did not know that he

could file a Motion to Suppress and if he had known, he would have advised

Ms. Gifford to file one instead of the guilty plea. (RR at 145-46; CR at 15).

      The trial court denied the Motion for New Trial and did not issue findings

on the record. (CR at 16-17, 22).

                          Summary of the Argument

       Mr. Cotton was illegally detained by Officer Burnett, who did not have

reasonable suspicion for the detention, but was instead acting on a hunch in

violation of the Fourth Amendment. As a result of the illegal detention, Mr.



                                        7
Cotton gave a statement where he admitted to committing the offense of

burglary of a building. But for this statement, the state would have been unable

to prove its case against Mr. Cotton.

      While Mr. Cotton was in custody, he met his appointed lawyer, Ms.

Gifford, at his initial court appearance and pleaded guilty to the offense within a

two-hour period of her arrival in the courtroom. Mr. Cotton was not advised

that he could file a Motion to Suppress his statements, and Ms. Gifford did not

recognize any legal defenses in his case. Ms. Gifford failed to provide effective

assistance of counsel, thereby rendering Mr. Cotton’s plea of guilty involuntary.

Mr. Cotton would have filed a Motion to Suppress had he been properly

advised.

      A Motion for New Trial based on an involuntary plea as a result of

ineffective assistance of counsel was erroneously denied.

                                   Argument

ISSUE I: MR. COTTON’S GUILTY PLEA WAS INVOLUNTARY
BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL, THEREFORE, THE TRIAL COURT ABUSED ITS
DISCRETION BY DENYING MR. COTTON’S MOTION FOR NEW
TRIAL.

   A. Standard of Review.


   This Court reviews a denial of a motion for new trial under an abuse of

discretion standard. Lopez v. State, 428 S.W.3d 271, 278 (Tex. App.—Houston


                                        8
[1st Dist.] 2014), pet. ref’d (June 11, 2014); Acosta v. State, 411 S.W.3d 76, 89

(Tex. App.—Houston [1st Dist.] 2013, no pet.). This standard provides great

deference to the trial court, “reversing only if the trial judge’s decision was

clearly erroneous and arbitrary.” Lopez, 428 S.W.3d at 278(citing Riley v. State,

378 S.W.3d 453, 457 (Tex. Crim. App. 2012)).

            An ‘appellate court must not substitute its own
            judgment for that of the trial court and must uphold the
            trial court's ruling if it is within the zone of reasonable
            disagreement.’ As to determinations of fact, we must
            view the evidence in the light most favorable to the
            prior ruling: a trial court abuses its discretion only if
            no reasonable view of the evidence could support its
            holding.

Lopez, 428 S.W.3d at 278(quoting Riley, 378 S.W.3d at 457–58.).

   B. An Involuntary Plea is Invalid.


   It is well settled law that a guilty plea must be freely, knowingly, and

voluntarily made. Brady v. United States, 397 U.S. 742, 748 (1970). A guilty

plea made as a result of ineffective assistance of counsel is not knowingly and

voluntarily entered. Ex Parte Moussazadeh, 361 S.W.3d 684, 688-89 (Tex.

Crim. App. 2012); Ex Parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App.

1980)(en banc); Lopez, 428 S.W.3d at 278.




                                        9
      C. Ineffective Assistance of Counsel Standard.


The Strickland3 test has two well-known components:

                 ‘First, the defendant must show that counsel's
                 performance was deficient. This requires showing that
                 counsel made errors so serious that counsel was not
                 functioning as the ‘counsel’ guaranteed the defendant
                 by the Sixth Amendment. Second, the defendant must
                 show that the deficient performance prejudiced the
                 defense. This requires showing that counsel's errors
                 were so serious as to deprive the defendant of a fair
                 trial, a trial whose result is reliable.’

Williams v. Taylor, 529 U.S. 362, 390 (2000)(quoting Strickland, 466 U.S. at

687). Ineffectiveness is established by a showing that “counsel’s representation

fell below an objective standard of reasonableness.” Strickland, 466 U.S. at

688.       “The adequacy of attorney performance is judged against what is

reasonable considering prevailing professional norms.” Lopez, 428 S.W.3d at

277(citing Strickland, 466 U.S. at 688.). It is well-established that the Supreme

Court looks to the ABA Standards for Criminal Justice for guidance on the

reasonableness of counsel’s actions. Rompilla v. Beard, 545 U.S. 374, 387

(2005); Wiggins v. Smith, 539 U.S. 510, 522 (2003). The burden is on the

accused to show “by a preponderance of the evidence that his attorney failed to

provide reasonably effective assistance.” Lopez, 428 S.W.3d at 277(citing Bone

v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). The prejudice prong is

3
    Strickland v. Washington, 466 U.S. 668 (1994).


                                               10
established by showing “that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694.

            In the context of a claim that the defendant's plea is
            involuntary due to ineffective assistance of counsel,
            the defendant must show (1) that counsel's advice was
            outside the range of competency demanded of
            attorneys in criminal cases and (2) that, but for
            counsel's erroneous advice, the defendant would not
            have pleaded guilty and would instead have gone to
            trial.

Labib v. State, 239 S.W.3d 322, 333 (Tex. App.—Houston [1st Dist.] 2007, no

pet.)(citing Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999)).

The Court of Criminal appeals has held: “In assessing competence, we have

held counsel accountable for knowledge, or the ability to attain knowledge of

relevant legal matters that are neither novel nor unsettled.” Moody, 991 S.W.2d

at 858(citing Ex Parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998)).

   D. Defense Counsel Failed to Recognize a Critical Legal Issue and did

      not Advise Mr. Cotton That a Motion to Suppress Should be Filed on

      his Behalf.


   It is well-established that the Supreme Court looks to the ABA Standards for

Criminal Justice for guidance on the reasonableness of counsel’s actions.



                                       11
Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510,

522 (2003). The ABA standards provide:

            (f) For each matter, defense counsel should consider
            what procedural and investigative steps to take and
            motions to file, and not simply follow rote procedures
            learned from prior matters.
ABA Standards For Criminal Justice, The Defense Function, Part III, Standard

4-3.7(f)(emphasis added).


              (c) As early as practicable in the representation,
            defense counsel should also discuss:
                                       …
                 (v) likely legal options such as motions, trial, and
            potential negotiated dispositions.
ABA Standards For Criminal Justice, The Defense Function, Part III, Standard

4-3.3(c)(v)(emphasis added).


      “A criminal defense lawyer must have a firm command of the facts of the

case as well as governing law before he can render reasonably effective

assistance to his client-in or out of the courtroom.” Ex parte Duffy, 607 S.W.2d

507, 516-17 (Tex. Crim. App. 1980), overruled on other grounds by Hernandez

v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999)(citations omitted).


            An “attorney who represents a criminal defendant is
            ‘bound by professional duty to present all available
            evidence and arguments in support of (the client's)
            positions and to contest with vigor all adverse


                                       12
             evidence and views.’ ” Thomas v. State, 550 S.W.2d
             64, 68 (Tex. Crim. App. 1977) (quoting Gagnon v.
             Scarpelli, 411 U.S. 778, 787 (1973); Wenzy v. State,
             855 S.W.2d 47, 50 (Tex.App.–Houston [14th Dist.]
             1993, pet. ref'd)).
Lopez v. State, 01-13-01079-CR, 2015 WL 832059, at *4 (Tex. App.—Houston

[1st Dist.] Feb. 26, 2015, no. pet. h.) “A defendant is entitled to rely on counsel

to make an independent investigation of the facts, circumstances, pleadings and

laws involved, and then to offer his informed opinion as to what plea the

defendant should enter.” Starz v. State, 309 S.W.3d 110, 119 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref'd)(citation omitted).


      Defense counsel’s failure to raise the issue of voluntariness of his client’s

statement which should have been inadmissible was a “monumental omission,”

and “[t]he totality of the ‘representation’ provided f[ell] short of the benchmark

of subjecting the prosecution’s case to the ‘crucible meaningful adversarial

testing.’”   Sanders v. State, 715 S.W.2d 771, 775-76 (Tex. App.—Tyler 1986,

no pet.)(quoting United States v. Cronic, 466 U.S. 648, 656 (1984)). Counsel

has been found ineffective in a guilty plea case for failing to inform an accused

person how the facts of his case “related to the law of murder and voluntary

manslaughter, and the State’s burden of proof thereon.”       Booth v. State, 725

S.W.2d 521, 524 (Tex. App.—Tyler 1987, pet. ref'd). In Booth, the court relied

on Ex Parte Gallegos, 511 S.W.2d 510, 511 (Tex. Crim. App. 1974), which held


                                         13
that Mr. Gallegos was denied effective assistance of counsel “because of the

failure of his trial counsel to advise him of the relationship of the facts in his

case to the Texas law of robbery” thus, rending his guilty plea involuntary. In

Aviles, the Court of Criminal Appeals held that, “Based on the record, counsel's

failure to investigate the circumstances of Applicant's arrest and confession and

to file a motion to suppress constituted deficient performance.” Ex parte Aviles,

AP-75,616, 2007 WL 474968, at *1 (Tex. Crim. App. Feb. 14, 2007).


             In the case at bar, defense counsel failed to explore let alone

recognize the need to file a motion to suppress Mr. Cotton’s statements based on

the illegal detention. Defense counsel’s one brief visit with Mr. Cotton in the

holdover cell before his guilty plea did not satisfy the standards expected of

criminal defense lawyers, especially in light of her failure to file a critical

motion. Her failure to advise Mr. Cotton of the relationship of the facts in his

case to the law on detentions and the admission of confessions rendered Mr.

Cotton’s plea involuntary.


         a. Mr. Cotton was Detained, Thus the Fourth Amendment was

             Implicated.


      The Fourth Amendment is only implicated when an investigative

detention or arrest has occurred; a consensual encounter provides no Fourth



                                       14
Amendment protection. A consensual encounter occurs when a police officer

approaches and talks to or questions a citizen, and the citizen has the right to

terminate the conversation and walk away. State v. Woodard, 341 S.W.3d 404,

411 (Tex. Crim. App. 2011). “No bright-line rule governs when a consensual

encounter becomes a seizure. Generally, however, when an officer through

force or a showing of authority restrains a citizen’s liberty, the encounter is no

longer consensual.” Id.


             A seizure or detention occurs if, in light of all the
             circumstances surrounding an encounter between a
             police officer and an individual, the officer's conduct
             would communicate to a reasonable person that he is
             not free to go, or not free to refuse the officer's
             requests. Reyes v. State, 899 S.W.2d 319, 323
             (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). A
             person is seized if, from his or her perspective, there
             has been such a display of official authority that a
             reasonable person would not have felt that he was free
             to leave. Shelby v. State, 888 S.W.2d 231, 233
             (Tex.App.-Houston [1st Dist.] 1994 pet. ref'd).
             However, a person has not been seized until he has
             yielded to a law enforcement officer's show of
             authority or when officers physically limit his
             movement. Johnson v. State, 912 S.W.2d 227, 234
             (Tex.Crim.App.1995).
Brock v. State, 14-06-00128-CR, 2007 WL 2367262, at *2 (Tex. App.—

Houston [14th Dist.] Aug. 21, 2007, pet. ref'd). The Court of Criminal Appeals

has held that an example of a seizure is “the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled.”


                                       15
Crain v. State, 315 S.W.3d 43, 49-50 (Tex. Crim. App. 2010)(citing United

States v. Mendenhall, 446 U.S. 544, 554 (1980)).        Moreover, the Court of

Criminal Appeals has held that “[t]he surrounding circumstances, including time

and place, are taken into account, but the officer’s conduct is the most important

factor when deciding whether an interaction was consensual or a Fourth

Amendment seizure.” Woodard, 341 S.W.3d at 411(emphasis added).


      In Crain, the Court of Criminal Appeals held that a detention had

occurred when the officer shined his overhead lights in the accused's direction

and told him to ‘come over here and talk to me,’ in a “request-that-sounded-like-

an-order.” Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). The

Court held the detention was illegal and the subsequent result of the search must

be suppressed. Id. at 53.


      Officer Burnett intended to question Mr. Cotton and acknowledged on

several occasions that it was a detention. See Facts, supra at 3-5. Mr. Cotton

believed that he was not free to leave and the prosecutor agreed it was a

detention.   It appears from the record that Ms. Gifford did not adequately

understand the difference between a consensual encounter with police and a

detention; therefore, she could not possibly render effective assistance of

counsel because she did not understand the law and how it applied to the facts of



                                       16
Mr. Cotton’s case. See Facts, supra at 5-7. Assuming arguendo, that she did

adequately understand the law, she failed to properly advise Mr. Cotton.


            b. Officer Burnett did not Have Reasonable Suspicion to Lawfully

              Detain Mr. Cotton.


              A police officer has reasonable suspicion to detain a
              person if he has specific, articulable facts that,
              combined with rational inferences from those facts,
              would lead him reasonably to conclude that the person
              detained is, has been, or soon will be engaged in
              criminal activity. This standard is an objective one
              that disregards the actual subjective intent or motive of
              the detaining officer and looks, instead, to whether
              there was an objective justification for the detention.

State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011)(internal citations

omitted).


       Reasonable suspicion is determined based on the totality of the

circumstances, and this Court determines reasonableness de novo.4 Crain, 315

S.W.3d at 48-49, 53. Opinions of the officer are “ineffective substitutes for

specific, articulable facts in a reasonable-suspicion analysis.” Ford v. State, 158

S.W.3d 488, 493-94 (Tex. Crim. App. 2005). “In deciding whether reasonable

suspicion existed, we look at the facts available to the officer at the time of the


4
  While this appeal is not based on the denial of a motion to suppress evidence, this Court’s
determination of reasonable suspicion to detain Mr. Cotton is critical to the determination of
whether defense counsel provided ineffective assistance of counsel by failing to even attempt
to have the statement obtained as a result of the detention suppressed.


                                             17
detention.” Crain, 315 S.W.3d at 52-53(citing Davis v. State, 947 S.W.2d 240,

243 (Tex. Crim. App. 1997)). Also, an officer’s training and experience is

insufficient to establish reasonable suspicion; it requires objective factual

support. Ford, 158 S.W.3d at 494.


      The Supreme Court has emphasized the importance of this standard for

more than 40 years:


            The scheme of the Fourth Amendment becomes
            meaningful only when it is assured that at some point
            the conduct of those charged with enforcing the laws
            can be subjected to the more detached, neutral scrutiny
            of a judge who must evaluate the reasonableness of a
            particular search or seizure in light of the particular
            circumstances. And in making that assessment it is
            imperative that the facts be judged against an objective
            standard: would the facts available to the officer at the
            moment of the seizure or the search warrant a man of
            reasonable caution in the belief that the action taken
            was appropriate?         Anything less would invite
            intrusions upon constitutionally guaranteed rights
            based on nothing more substantial than inarticulate
            hunches, a result this Court has consistently refused to
            sanction. And simple good faith on the part of the
            arresting officer is not enough. If subjective good faith
            alone were the test, the protections of the Fourth
            Amendment would evaporate, and the people would be
            secure in their persons, houses, papers and effects,
            only in the discretion of the police.

Terry v. Ohio, 392 U.S. 1, 21-22 (1968)(internal quotations and citations

omitted).



                                       18
       The Court of Criminal Appeals has also emphasized that the time of day

and the level of criminal activity in the area are only factors that do not prove a

“suspect is engaged in any sort of criminal offenses. In order for these facts to

affect the assessment of the suspect's actions, the surroundings must raise a

suspicion that the particular person is engaged in illegal behavior.” Crain, 315

S.W.3d at 53. This Court has found insufficient reasonable suspicion to justify a

detention with the following factors:


             (1) the area had a history of drug sales; (2) the police
             had had frequent calls to the area or the residence over
             the last year; (3) it was 3:00 a.m.; (4) appellant was
             either standing in the street near, or walking in the
             street toward, a residence to which the officers had
             been called in past, but at which they had never made
             arrests for drugs or weapons; and (5) appellant
             watched the marked police car and walked away from
             it when it turned around.

Gamble v. State, 8 S.W.3d 452, 453-454 (Tex. App—Houston [1st Dist.] 1999,

no pet.).

       Officer Burnett had no description of a suspect, other than a man, and he

had no reason to believe a vehicle was involved. Yet, he stopped and detained

Mr. Cotton immediately, several house down from the actual dispatched scene,

where he was simply getting out of his truck. He had no objective, specific,

articulable facts that Mr. Cotton had engaged in criminal activity. The time of

day was not enough to meet the demands of the Fourth Amendment. Officer


                                        19
Burnett was acting on a hunch; this was unreasonable.


      In the case at bar, the State relied on three cases during the Motion for

New Trial hearing. All three cases are clearly distinguishable. In Castellano,

the accused did not dispute that his headlamp was not functioning at the time of

his traffic stop, which provided reasonable suspicion for the detention.

Moreover, the accused provided consent to search. Castellano v. State, 49

S.W.3d 566, 575-76 (Tex. App.—Corpus Christi 2001, pet. ref'd). Therefore, a

motion to suppress would not have been properly granted. Id. In Ochoa, the

accused committed a felony within the officer’s view and “none of the evidence

introduced at trial was the product of that arrest.” Ochoa v. State, 717 S.W.2d

174, 175 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd). Similarly, had trial

counsel filed a motion to suppress, it would not have been properly granted. Id.

In Sanders, Officer Lavigne provided 11 specific articulable factors to justify the

detention of Mr. Sanders:


              (1) Lavigne received and responded to the dispatch
             call shortly before midnight, a time of day when
             according to his prior experiences there was “very,
             very little” traffic in the Wolflin area; (2) the dispatch
             call reported an attempted burglary in an area that had
             been the scene of multiple recent burglaries; (3) two
             suspects were reportedly involved in the attempted
             burglary; (4) the persons attempting the burglary had
             departed in a northerly direction; (5) Lavigne believed
             that burglars often parked a getaway car a short


                                        20
             distance from the residence or building to be broken
             into, and proceeded to their parked car on foot after the
             crime; (6) Lavigne encountered appellant's vehicle no
             more than two to three minutes after receiving the
             dispatch call for the attempted burglary; (7) he
             observed no other cars in the area before (or after) he
             encountered appellant's vehicle; (8) appellant's vehicle
             contained two persons, the same number as had been
             reportedly involved in the crime; (9) appellant's
             vehicle was heading away from the address where the
             crime had occurred; (10) appellant's vehicle was
             headed in the same direction that the burglary suspects
             fled on foot from the scene of the burglary attempt;
             and (11) appellant's vehicle was only three to four
             blocks driving distance (approximately two blocks
             straight-line distance) from the scene of the burglary
             when Lavigne stopped the vehicle.

Sanders v. State, 992 S.W.2d 742, 748-50 (Tex. App.—Amarillo 1999, no pet.).

In the case at bar, the officer did not have a description of a suspect, a direction

of departure, a description of a car, to the contrary, there was no report that a

vehicle was involved.


         c. Mr. Cotton’s Statements to Officer Burnett Were Fruits of the

             Illegal Detention and Should Have Been Suppressed, Thus

             Preventing the State From Proving its Case Against Mr.

             Cotton.


      Article 38.23(a) of the Texas Code of Criminal Procedure provides:

             No evidence obtained by an officer or other person in
             violation of any provisions of the Constitution or laws


                                        21
             of the State of Texas, or of the Constitution or laws of
             the United States of America, shall be admitted in
             evidence against the accused on the trial of any
             criminal case.

       “The federal exclusionary rule and article 38.23 extend not only to

evidence obtained as a direct result of an illegal arrest, search, or seizure, but

also to evidence obtained as an indirect result of an illegal arrest, search, or

seizure, known as the ‘fruit of the poisonous tree.’” St. George v. State, 197

S.W.3d 806, 824 (Tex. App.—Fort Worth 2006) aff'd, 237 S.W.3d 720 (Tex.

Crim. App. 2007); see Wong Sun v. United States, 371 U.S. 471, 484, 488

(1963); Thornton v. State, 145 S.W.3d 228, 232 (Tex. Crim. App. 2004). “In

view of our holding that the detention was not a lawful exercise of police power,

we also hold that the appellant's subsequent oral admission and the fruits of the

automobile search were inadmissible.” Pope v. State, 695 S.W.2d 341, 344

(Tex. App.—Houston [1st Dist.] 1985, pet. ref'd)(citations omitted).

      If defense counsel had filed a motion to suppress based on the illegal

detention of Mr. Cotton, his statements would not have been admissible, which

effectively gutted the state’s case against him. Defense counsel did not even

recognize the issue, nor did she inform Mr. Cotton that a Motion to Suppress

could have been filed.




                                       22
         d. Mr. Cotton was Prejudiced and Would not Have Entered a

             Guilty Plea but for his Counsel’s Deficient Performance.


   To show prejudice under Strickland, an accused must present evidence that

“but for his trial counsel's deficient performance, he would not have pleaded

guilty, but instead would have insisted on proceeding to trial.” Odelugo v. State,

01-12-00521-CR, 2015 WL 1062560, at *5 (Tex. App.—Houston [1st Dist.]

Mar. 10, 2015, no. pet. h.); See Labib v. State, 239 S.W.3d 322, 333 (Tex.

App.—Houston [1st Dist.] 2007, no pet.)(citing Ex parte Moody, 991 S.W.2d

856, 857–58 (Tex. Crim. App. 1999)).

   Mr. Cotton testified that had he known that a Motion to Suppress could have

been filed and had he been properly advised of the law, he would have filed said

motion instead of pleading guilty at his first court appearance.

   E. Conclusion.


   Mr. Cotton was denied constitutionally mandated effective assistance of

counsel, therefore, his plea of guilty was involuntary. This Honorable Court

should reverse the denial of the Motion for New Trial, reverse the judgment of

conviction, vacate the sentence, and remand for a new trial.




                                        23
                                      Prayer

         For the reasons above, Appellant respectfully prays this Court of Appeals

reverse the denial of the Motion for New Trial, reverse the judgment of

conviction and sentence, and remand this case back to the trial court for a new

trial.

                                        Respectfully submitted,


                                        __/s/ Emily Detoto_________
                                        EMILY DETOTO
                                        State Bar No.: 00797876
                                        917 Franklin, 4th Floor
                                        Houston, Texas 77002
                                        Telephone: (713) 227-2244
                                        Facsimile: (713) 222-5840
                                        emilydetoto@mac.com



                                        Counsel for Appellant


                               Certificate of Service

       I hereby certify that a true and correct copy of the Brief for Appellant was
electronically delivered to Mr. Alan Curry, Appellate Division Chief, Harris
County District Attorney’s Office, on this 28th day of May 2015.

                                        _____/s/ Emily Detoto_________
                                        EMILY DETOTO




                                         24
                          Certificate of Compliance

      I hereby certify, pursuant to Rule 9.4 of the Texas Rules of Appellate
Procedure, that the instant brief is computer generated using Microsoft Word for
Mac and said computer program has identified that there are 5,508 words within
the portions of this brief required to be counted by Rule 9.4(i)(1)&(2) of the
Texas Rules of Appellate Procedure.           The document was prepared in
proportionately spaced typeface using Times New Roman 14 for text and Times
New Roman 12 for footnotes.



                                      _____/s/ Emily Detoto________
                                      EMILY DETOTO




                                      25
