                                                                         ACCEPTED
                                                                    07-15-00039-CR
                                                       SEVENTH COURT OF APPEALS
                                                                 AMARILLO, TEXAS
                                                              7/27/2015 10:16:01 AM
                                                                   Vivian Long, Clerk


         No. 07-15-00039-CR

        COURT OF APPEALS                           FILED IN
                                            7th COURT OF APPEALS
                                                AMARILLO, TEXAS
        SEVENTH DISTRICT                    7/27/2015 10:16:01 AM
                                                  VIVIAN LONG
                                                     CLERK
    FOR THE STATE OF TEXAS



    JOSEPH LEWIS GONZALES,

                                 APPELLANT,

       THE STATE OF TEXAS,

                                 APPELLEE.

Appealed from the 181st District Court of
         Potter County, Texas
         Cause No. 68,522-B


        APPELLANT’S BRIEF
                                    Steven M. Denny
                                    SBN: 24005798
                                    2414 Line Ave.
                                    Amarillo, Texas 79106
                                    (806) 379-2010
                                    Fax:(806)379-2012
                                    lawyerdenny@aol.com
                                    Attorney for Appellant,
                                    Joseph Gonzales

 ORAL ARGUMENT REQUESTED




                   1
                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................................................ 3

INDEX OF AUTHORITIES ..................................................................................................................... 4

STATEMENT OF THE CASE.................................................................................................................. 7

STATEMENT OF FACTS ........................................................................................................................ 8

SUMMARY OF THE ARGUMENT ...................................................................................................... 10

POINT OF ERROR ................................................................................................................................. 11
THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT A CONSENSUAL
ENCOUNTER BECAUSE IT DID NOT OCCUR IN A PUBLIC PLACE

CONCLUSION AND PRAYER .............................................................................................................. 18

CERTIFICATE OF SERVICE................................................................................................................. 18

CERTIFICATE OF COMPLIANCE ....................................................................................................... 19




                                                                        2
               IDENTITY OF PARTIES AND COUNSEL

In order that the members of the Court may determine disqualification in or recusal
pursuant to T.R.A.P. 74(c), Appellant certifies that the following is a complete list
of parties:

Judge Presiding:                       Honorable John Board
                                       181st District Court
                                       501 S. Fillmore
                                       Ste. 3b
                                       Amarillo, Texas 79101

Appellant:                             Joseph Lewis Gonzales TDCJ # 01976373
                                       JB Wheeler State Jail
                                       986 County Rd. AA
                                       Plainview, TX 79072

Attorney for Appellant                 Lynda Smith
At Trial:                              3611 Soncy
                                       Amarillo, TX 79119

Attorney for Appellant                 Steven M. Denny
On Appeal:                             2414 Line Ave.
                                       Amarillo, Texas 79106

Attorney for State                     Chuck Slaughter
At Trial:                              Assistant District Attorney
                                       501 S. Fillmore
                                       Ste. 5a
                                       Amarillo, Texas 79101

Attorney for State                     Randall Sims
on Appeal:                             47th District Attorney
                                       501 S. Fillmore
                                       Ste. 5a
                                       Amarillo, Texas 79101



                                          3
                                      INDEX OF AUTHORITIES
Cases
Amorella v. State, 554 S.W.2d 700, (Tex.Crim.App.1977) .....................................16
Arguellez v. State, 409 S.W.3d 657, (Tex. Crim. App. 2013) .................................10
Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007)) ....11
California v. Hodari D., 499 U.S. 621, (1991) .........................................................12
Crain v. State, 315 S.W.3d 43, (Tex. Crim. App. 2010) ..........................................10
Derichsweiler v. State, 348 S.W.3d 906, (Tex.Crim.App.2011)..............................13
Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ...........11
Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)(plurality
  op.) ............................................................................................................11, 12, 14
Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) .....................11
Green v. State, 256 S.W.3d 456, (Tex.App.-Waco 2008, no pet.) ...........................16
Gurrola v. State, 877 S.W.2d 300, (Tex.Crim.App.1994) .......................................16
Hudson v. State, 247 S.W.3d 780, (Tex.App.-Amarillo 2008, no pet.) ...................16
LeBlanc v. State, 138 S.W.3d 603, (Tex. App.-Houston [14th Dist.] 2004, no pet.)
   ..............................................................................................................................16
Morris v. State, 739 S.W.2d 63, (Tex.Crim.App.1987) ...........................................12
Shaffer v. State, 562 S.W.2d 853, (Tex.Crim.App.1978) ........................................16
Sieffert v. State, 290 S.W.3d 478, (Tex.App.-Amarillo 2009, no pet.) ...................16
State v. Castleberry, 332 S.W.3d 460, (Tex.Crim.App.2011)..................................12
State v. Woodard, 341 S.W.3d 404, (Tex. Crim. App. 2011) ............................10, 11
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ....................11, 13
United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607
  (1975) ..............................................................................................................13, 15
United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)
   ..............................................................................................................................12
United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) .......13
Valtierra v. State, 310 S.W.3d 442, (Tex. Crim. App. 2010) ...................................10
Viveros v. State, 828 S.W.2d 2, (Tex.Crim.App. 1992) ..........................................16
Wade v. State, 422 S.W.3d 661, (Tex. Crim. App. 2013) ........................................10
Statutes
Tex. Code Crim. Pro. §18.01 ...............................................................................7, 16
Tex. Code Crim. Pro. §38.22 ...............................................................................7, 16
Tex. Code Crim. Pro. §38.23 ...............................................................................7, 16


                                                                4
Constitutions
Texas Constitution Article 1, §9...........................................................................7, 16
U.S. Const. amend V ............................................................................................7, 16
U.S. Const. amend VI...........................................................................................7, 16
U.S. Const. amend XIV ........................................................................................7, 16
U.S. Const. amend. IV..........................................................................................7, 16




                                                         5
JOSEPH LEWIS GONZALES §                 IN THE SEVENTH DISTRICT OF TEXAS
                                        §
VS.                                     §    OF
                                        §
THE STATE OF TEXAS                      §    AMARILLO, TEXAS



                                No. 07-15-00039-CR

                           JOSEPH LEWIS GONZALES,

                                      Appellant,

                                         VS.

                             THE STATE OF TEXAS,

                                      Appellee.


                              APPELLANT’S BRIEF


TO THE COURT OF APPEALS:

         Appellant, JOSEPH LEWIS GONZALES, respectfully submits this brief. Mr.

Gonzales will be referred to as Appellant and the State of Texas will be referred to as

State.




                                          6
                                STATEMENT OF THE CASE


         Appellant challenged the search, seizure, and arrest in the cause by pre-trial

motion CR 1-591 heard by the Court on January 12, 2015 RR 2-6.52 The Court found

that the encounter between appellant and the government was a consentual encounter.

RR 2-185.8 The court overruled appellant’s motion. RR 2-185.19 Afterwards,

appellant plead guilty to Possession of a Controlled Substance on January 12, 2015 in

the 181st District Court in Potter County RR 2-188.5 and was sentenced by the court to

15 years in The Texas Department Of Criminal Justice Institutional Division. RR 2-

192.22 A notice of appeal was timely filed on January 21, 2015. CR 1-88




1 The Clerk’s record consists of 2 volumes and will be referred to as [CR volume #-page #]
2 The Reportrer’s record consists of 3 volumes and will be referred to as [RR volume # - page # . line #]

                                                          7
                           STATEMENT OF FACTS

      Appellant, Joseph Gonzales, was charged with the offense of Possession of a

Controlled Substance alleged to have occurred on or about January 27, 2014. (CR 1-

20) Appellant challenged the search that was the basis of his arrest on the Fourth,

Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article

1, §9 of the Texas Constitution, and Articles 18.01, 38.22 and 38.23 of the Texas Code

of Criminal Procedure. CR 1-59 Amarillo Police Officer Tollerson testified that he saw

appellant commit a traffic violation of “failed to signal intent pulling into the private

parking lot.” RR 2-10.12 He testified that it was 2:00 a.m. RR 2-11.3 and that he had

seen the violation from several “short blocks” RR 2-11.18 away by observing appellant

in the rearview and sideview mirrors RR 2-11.21from the passenger seat of the patrol

car. RR 2-11.5 When Officers Slover and Tollerson reached the private driveway

behind the building, RR 2-12.5 appellant had already exited his vehicle, they made

contact with appellant, and they obtained his identification.RR 2-12.7 Officer

Tollerson then re-approached appellant for the purpose of “speak[ing] with him

regarding the traffic violation.” RR 2-12.21 Officer Tollerson then asked appellant if

he had any weapons RR 2-13.23 to which appellant replied that he had a pocketknife

and began to retrieve it for the officer. RR 2-14.17 During the search, the officers


                                           8
found the knife RR 2-17.13 and a small tobacco can which they later pried open. RR 2-

16.12 Appellant testified that he consented to a patdown for weapons after he told the

officers he had a knife in his pocket. RR 2-152.1 The State introduced a video of

appellant’s “consent” for a search of his person for contraband via a video taken “30

minutes to an hour” after the initial stop. RR 2-151.7 Appellant testified that he had

driven “right past the front entrance to that building where there’s a driveway and a

parking lot, circled completely around this building and then drove all the way to the

back.” RR 2-156.16 The Court found that there “wasn’t a traffic stop”, RR 2-181.22

but instead an “encounter with consensual search” RR 2-185.9 and overruled the

motion. RR 2-185.19




                                          9
                     SUMMARY OF THE ARGUMENT


THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT A CONSENSUAL
ENCOUNTER BECAUSE IT DID NOT OCCUR IN A PUBLIC PLACE



      The ends don’t justify the means, even when the result is locking up a

habitual felon like Joseph Gonzales for fifteen more years. In this case, the Court

found the officer’s testimony that they were attempting to enforce the traffic laws

on January 27, 2014 at 2:00 a.m. not credible. In an attempt to salvage the case, the

State argued that it instead was a consensual encounter despite occurring on private

property with lights and spotlights pointed at an appellant who did not feel free to

leave lest he be arrested for evading arrest. The officers alleged that the area was a

drug distribution point in their report, but disavowed any suspicion that appellant

was participating in narcotics activity. They failed to articulate any suspicion, be it

reasonable or unreasonable, to detain appellant. As such, all evidence seized as a

result of such detention and search should be held inadmissible.




                                           10
                               POINT OF ERROR

THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT
A CONSENSUAL ENCOUNTER BECAUSE IT DID NOT OCCUR IN
A PUBLIC PLACE



Standard of Review

      A trial court's ruling on a suppression motion is reviewed on appeal for abuse of

discretion, with almost complete deference being given to its determination of

historical facts, especially if those are based on an assessment of credibility and

demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013); Crain v.

State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Regardless of whether the trial court

granted or denied the motion, appellate courts view the evidence in the light most

favorable to the ruling. Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim. App. 2013);

State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). Appellate courts

review de novo a trial court's application of the law of search and seizure to the facts.

Wade, 422 S.W.3d at 667; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.

2010).



Relevant Caselaw


                                           11
      There are three distinct types of police-citizen interactions: (1) consensual

encounters that do not implicate the Fourth Amendment; (2) investigative detentions

that are Fourth Amendment seizures of limited scope and duration that must be

supported by a reasonable suspicion of criminal activity; and (3) arrests, the most

intrusive of Fourth Amendment seizures, that are reasonable only if supported by

probable cause. Woodard, 341 S.W.3d at 410-11 (citing Florida v. Bostick, 501 U.S.

429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Terry v. Ohio, 392 U.S. 1, 30-31,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Gerstein v. Pugh, 420 U.S. 103, 111-12, 95

S.Ct. 854, 43 L.Ed.2d 54 (1975)). Police officers are as free as any other citizen to

approach citizens in a public place to ask for information or cooperation. Such

consensual encounters may be uncomfortable for a citizen, but they are not Fourth

Amendment seizures:

      [L]aw enforcement officers do not violate the Fourth Amendment by merely
      approaching an individual on the street or in another public place, by asking
      him if he is willing to answer some questions, by putting questions to him if the
      person is willing to listen, or by offering in evidence in a criminal prosecution
      his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491 at 497
      to 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)(plurality op.) (citations
      omitted)(emphasis added).


      No bright-line rule governs when a consensual encounter becomes a detention.

Woodard, 341 S.W.3d at 412 (citing Brendlin v. California, 551 U.S. 249, 255, 127

S.Ct. 2400, 168 L.Ed.2d 132 (2007)). Courts must take into account the totality of the

                                         12
circumstances of the interaction to decide whether a reasonable person would have felt

free to ignore the police officer's request or terminate the consensual encounter. State

v. Castleberry, 332 S.W.3d 460, 467 (Tex.Crim.App.2011). This is known as the

Mendenhall test. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229

(1983) (relying on Mendenhall to conclude that the circumstances — "a show of

official authority such that a reasonable person would have believed that he was not

free to leave" — indicated a Fourth Amendment seizure); United States v. Mendenhall,

446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ("a person has been seized

within the meaning of the Fourth Amendment only if, in view of all of the

circumstances surrounding the incident, a reasonable person would have believed he

was not free to leave."); Morris v. State, 739 S.W.2d 63, 66 (Tex.Crim.App.1987)

("Mendenhall and Royer indicate the circumstances of a case must be examined in

order to decide if a defendant would have reasonably believed that he was not free to

leave.").



      If ignoring the request or terminating the encounter is an option, then no Fourth

Amendment seizure has occurred. Castleberry, 332 S.W.3d 460, 467 (Tex.

Crim.App.2011). But — as the Supreme Court made clear in California v. Hodari D.,

499 U.S. 621, 627-28 (1991); Castleberry, 332 S.W.3d at 466-67. — if an officer


                                          13
through force or a show of authority succeeds in restraining a citizen in his liberty, the

encounter is no longer consensual; it is a Fourth Amendment detention or arrest,

subject to Fourth Amendment scrutiny.



      If the encounter is not consensual or escalates from a consensual to a non-

consensual encounter, an officer must have a reasonable suspicion of criminal activity

to detain or seize an individual for questioning. United States v. Brignoni-Ponce, 422

U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). A police officer has

reasonable suspicion for a detention if he has specific, articulable facts that, when

combined with rational inferences from those facts, would lead him to reasonably

conclude that the person detained is, has been, or soon will be engaged in criminal

activity. This is an objective standard that disregards the actual subjective intent of the

arresting officer and looks, instead, to whether there was an objectively justifiable

basis for the detention. Derichsweiler v. State, 348 S.W.3d 906, 914

(Tex.Crim.App.2011) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581,

104 L.Ed.2d 1 (1989); Terry, 392 U.S. at 21-22, 88 S.Ct. 1868).



Argument

      The trial court ruled that the encounter between appellant and officers on


                                            14
January 27, 2014 was a consensual encounter rather than a traffic stop. RR 2-185.9

The record, however, is silent on an essential element of a consensual encounter- that it

take place in a public place as required in Florida v. Royer, 460 U.S. 491 at 497.

Officer Tollerson’s testimony at the hearing was that the encounter was in a “private

parking lot” RR 2-10.9, “private parking lot” RR 2-10.13, “private parking lot” RR 2-

26.13, and “private drive” RR 2-71.12 Amarillo Police Officer Camarillo testified that

the encounter was on “private property.” RR 2-105.18 Appellant also testified that it

was “private property.” RR 2-138.16 Since the encounter did not take place in a

“public place,” it was not a consensual encounter.



      Even if the encounter had taken place in a public place, a reasonable person in

appellant’s position would not have felt free to leave. When we apply the Mendenhall

test to determine whether there was "a show of official authority such that a reasonable

person would have believed that he was not free to leave," we must look to Officer

Caramillo’s testimony that Officer Tollerson’s red and blue lights were on RR 2-

110.22, Officer Tollerson’s testimony that the patrol car’s spotlight was on and pointed

towards appellant RR 2-78.14, and appellant’s testimony that he felt that he was not

free to leave or he would have been charged with “evading arrest,” RR 2-129.4




                                           15
      Officer Tollerson attempted to explain that once appellant was detained in the

traffic stop, he continued to be detained after they found the substance in the following

exchange:

      Q.     [by the State’s Attorney] Is that after he was taken into custody after you
             found the substance? Was he let me rephrase. Did you detain him after
             you found the substance?
      A.     [by officer Tollerson] A person is detained once a traffic --
      Q.     Just did you detain him?
      A.     He was continued to be --
      Q.     All right.
      A.     detained, yes.
      Q.     And at that point was he free to leave?
      A.     No. RR 2-18.12 to 22 (emphasis added)

The most dispositive testimony that there was in fact a detention is in this exchange:

      Q.     [by the state’s attorney] So you didn’t detain him at all, did you?
      A.     [by officer Tollerson] We did. RR 2-60.23 to 24


      Since appellant was in fact detained as the facts and testimony above prove, the

officers would need to articulate reasonable suspicion for such detention. United States

v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The

record from the hearing itself proves that the officers did not have reasonable suspicion

of a criminal offense- other than the traffic violation which the court held was not the

reason for the stop- in the following exchange:

      Q.     [by Appellant’s trial counsel] And the fact that he pulled into that parking
             lot made him a suspect for your narcotics investigation, didn’t it?
      A.     [by Officer Tollerson] No, ma’am.

                                           16
      During the hearing, the area was described as a “drug distribution point,” RR2-

55.8, “high crime rate, high drug area,” RR 2-131.8 RR 2-141.19. Such an allegation

does not itself arise to a reasonable suspicion:

      Although the time of day and the level of criminal activity in an area may be
      factors to consider in determining reasonable suspicion, they are not suspicious
      in and of themselves; Hudson v. State, 247 S.W.3d 780, 786-87 (Tex.App.-
      Amarillo 2008, no pet.); Green v. State, 256 S.W.3d 456, 462 (Tex.App.-Waco
      2008, no pet.), and that detainees were seen or found in a high crime area alone
      does not warrant reasonable suspicion. Gurrola v. State, 877 S.W.2d 300, 303
      (Tex.Crim.App.1994); Amorella v. State, 554 S.W.2d 700, 701
      (Tex.Crim.App.1977). Neither does driving slower than the posted speed;
      Viveros v. State, 828 S.W.2d 2, 3 (Tex.Crim.App. 1992); Shaffer v. State, 562
      S.W.2d 853, 854-55 (Tex.Crim.App.1978), nor nervousness; Green, 256
      S.W.3d at 462; LeBlanc v. State, 138 S.W.3d 603, 608 n. 6 (Tex. App.-Houston
      [14th Dist.] 2004, no pet.), by themselves, warrant reasonable suspicion. Sieffert
      v. State, 290 S.W.3d 478, 485 (Tex.App.-Amarillo 2009, no pet.).



      Since the court ruled that the encounter was not a traffic stop, RR 2-181.22 and

since the Officers did not offer any reasonable suspicion that a crime was taking place,

and since the officers denied that appellant was a suspect in a narcotics investigation,

the Officers did not have a reasonable suspicion to detain appellant. Without

reasonable suspicion, the detention was a violation of appellant’s right to be free from

unreasonable searches under the Fourth, Fifth, Sixth and Fourteenth Amendments to

the United States Constitution and Article 1, §9 of the Texas Constitution, and Articles


                                           17
18.01, 38.22 and 38.23 of the Texas Code of Criminal Procedure, and all evidence

obtained as a result of that unlawful detention, search, and seizure should be

suppressed.


                        CONCLUSION AND PRAYER

      For the above and forgoing reasons, Appellant respectfully prays that upon

appellate review, the Court of Appeals find that the detention, search, and seizure of

appellant was unlawful and in violation of his right to be free from unreasonable

searches, hold the fruits of that search inadmissible, and remand this cause to the trial

court for further proceedings.

                                                Respectfully Submitted,




                                                  /s/denny
                                                STEVEN M. DENNY
                                                ATTORNEY AT LAW
                                                2414 Line Ave.
                                                AMARILLO, TEXAS 79106
                                                (806) 379-2010
                                                SBN: 24005798
                                                lawyerdenny@aol.com


                        CERTIFICATE OF SERVICE

      I, Steven M. Denny, attorney for the Appellant, certify that a true and correct

                                           18
copy of the foregoing brief has been provided to the Potter County Attorney on this the
  27 day of         July         , 20__15__.


                                                        /s/denny
                                                     STEVEN M. DENNY


                    CERTIFICATE OF COMPLIANCE

     I, Steven M. Denny, attorney for the Appellant, certify that this brief
complies with T.R.A.P. 9.4 and contains 1,898 words as calculated by Microsoft
Word in the included content as described in T.R.A.P 9.4(1) on this the      27 day
of July , 20_15_.


                                                      /S/denny
                                                     STEVEN M. DENNY




                                          19
