                                                                   ACCEPTED
                                                               01-15-00054-CR
                                                    FIRST COURT OF APPEALS
                                                            HOUSTON, TEXAS

    No. 01-15-00053-CR
                                                          9/30/2015 1:18:23 PM
                                                         CHRISTOPHER PRINE
                                                                        CLERK
    No. 01-15-00054-CR
              In the
                                              FILED IN
       Court of Appeals                1st COURT OF APPEALS
                                           HOUSTON, TEXAS
              For the
                                       9/30/2015 1:18:23 PM
    First District of Texas            CHRISTOPHER A. PRINE
           At Houston                          Clerk

      ♦

      Nos. 1410122 & 1410123
In the 174th Criminal District Court
      Of Harris County, Texas
      ♦

        DAMIEN SCOTT
              Appellant
                 V.
     THE STATE OF TEXAS
              Appellee

      ♦

STATE’S APPELLATE BRIEF
      ♦

                    DEVON ANDERSON
                    District Attorney
                    Harris County, Texas
                    BRIDGET HOLLOWAY
                    Assistant District Attorney
                    Harris County, Texas
                    Texas Bar No. 24025227
                    holloway_bridget@dao.hctx.net
                    GRETCHEN FLADER
                    Assistant District Attorney
                    Harris County, Texas
                    Harris County Criminal Justice Center
                    1201 Franklin, Suite 600
                    Houston, Texas 77002
                    Tel.: 713·755·5826
ORAL ARGUMENT NOT REQUESTED
                 STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State does not

request oral argument.


                         IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County
             Bridget Holloway  Assistant District Attorney on appeal
             Gretchen Flader  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Damien Scott

      Counsel for Appellant:

             Paul St. John  Attorney at trial
             Melissa Martin —Assistant Public Defender on appeal

      Trial Judge:

             Honorable Ruben Guerrero  Presiding Judge
                                                   TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
IDENTIFICATION OF THE PARTIES ................................................................................ 1
TABLE OF CONTENTS........................................................................................................... 2
INDEX OF AUTHORITIES .................................................................................................... 3
STATEMENT OF THE CASE ................................................................................................ 5
STATEMENT OF FACTS ....................................................................................................... 5
SUMMARY OF THE ARGUMENT ..................................................................................... 6
     Because appellant’s statement was not the product of custodial
     interrogation, appellant’s counsel was not ineffective for failing to
     move to suppress his statement.
REPLY TO APPELLANT’S SOLE ISSUE PRESENTED .................................................. 6
 Applicable Authority ............................................................................................................. 6
 Analysis ..................................................................................................................................... 8
CONCLUSION .........................................................................................................................12
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ........................ 13




                                                                       2
                                      INDEX OF AUTHORITIES

CASES

Amores v. State,
  816 S.W.2d 407 (Tex. Crim. App. 1991) ........................................................................... 9

Berkemer v. McCarty,
  468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)...................................................... 8

Bone v. State,
  77 S.W.3d 828 (Tex. Crim. App. 2002)............................................................................ 7

Bridge v. State,
   726 S.W.2d 558 (Tex. Crim. App. 1986) .......................................................................... 7

Curtis v. State,
  238 S.W.3d 376 (Tex. Crim. App. 2007).......................................................................... 9

Ex parte White,
  160 S.W.3d 46 (Tex. Crim. App. 2004) .......................................................................... 11

Ford v. State,
  158 S.W.3d 488 (Tex. Crim. App. 2005) ......................................................................... 9

Francis v. State,
  922 S.W.2d 176 (Tex. Crim. App. 1996) .......................................................................... 8

Godwin v. State,
  899 S.W.2d 387
  (Tex. App. —Houston [14th Dist.] 1995, pet. ref’d) .................................................... 11

Jackson v. State,
   973 S.W.2d 954 (Tex. Crim. App. 1998)........................................................................ 12

McFarland v. State,
  928 S.W.2d 482 (Tex. Crim. App. 1996) ......................................................................... 8




                                                         3
Parker v. State,
  710 S.W.2d 146
  (Tex. App. —Houston [14th Dist.] 1986, no pet.)....................................................... 10

Stansbury v. California,
   511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) .................................................... 10

State v. Garcia,
   25 S.W.3d 908
   (Tex. App. —Houston [14th Dist.] 2000, no pet.)........................................................ 8

State v. Sheppard,
   271 S.W.3d 281 (Tex. Crim. App. 2008) .......................................................................... 9

Strickland v. Washington,
   466 U.S. 668 (1984).......................................................................................................6, 7, 8

Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) .......................................................................... 6, 7

Turner v. State,
  252 S.W.3d 571
  (Tex. App. —Houston [14th Dist.] 2008, pet. ref’d) .................................................. 10


RULES
TEX. R. APP. P. 38.2(a)(1)(A) .....................................................................................................1
TEX. R. APP. P. 39.1 .......................................................................................................................1
TEX. R. APP. P. 9.4(g) ..................................................................................................................1




                                                                     4
TO THE HONORABLE COURT OF APPEALS:


                             STATEMENT OF THE CASE

          Appellant, Damien Scott, was charged with felon in possession of a weapon

and evading arrest. (CR122 at 13; CR123 at 12). Appellant entered pleas of guilty

to both charges after the trial court denied his motion to suppress. (RRII at 59,

79). The trial court later sentenced appellant to confinement for 4 years for

evading arrest and 6 years for felon in possession of a weapon, to run concurrently.

(RRII at 105). Written notices of appeal were timely filed. (CR122 at 109; CR123

at 79).

                          ♦


                               STATEMENT OF FACTS

          Officers patrolling a high crime area of Houston at night saw appellant

riding his bike down the middle of a street, weaving back and forth, and without a

light. (RRII at 22-25, 45-47). The officers stopped appellant and asked for

identification. They also asked him if he had anything illegal on him and appellant

replied, “a crack pipe.” (RRII at 26, 48-49). After finding the crack pipe, and

while arresting him, the officers saw appellant also possessed a gun. (RRII at 28,

50). After obtaining the gun from appellant, he was able to take off running, but

was soon captured. (RRII at 28, 50, 69).


                                           5
                       ♦


                       SUMMARY OF THE ARGUMENT

      Because appellant’s statement was not the product of custodial

interrogation, appellant’s counsel was not ineffective for failing to move to

suppress his statement.

                       ♦


              REPLY TO APPELLANT’S SOLE ISSUE PRESENTED

      Appellant complains his trial counsel was ineffective for failing to attempt

to suppress his “crack pipe” statement because, he argues, it was the product of

custodial interrogation. Because appellant’s statement was not the product of

custodial interrogation, appellant’s counsel was not ineffective for failing to move

to suppress his statement.

                              APPLICABLE AUTHORITY

      The adequacy of an attorney’s performance is reviewed under the standard

articulated in Strickland. See Strickland v. Washington, 466 U.S. 668, 686 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In order to prevail on a

claim of ineffective assistance of counsel, a defendant must show: (1) defense




                                         6
counsel’s performance was deficient; and (2) the deficient performance prejudiced

the defense to such a degree that the defendant was deprived of a fair trial. Id.

      The first prong of the Strickland standard requires the defendant to show

that counsel’s performance fell below an objective standard of reasonableness.

Thompson, 9 S.W.3d at 812. With regard to the second prong, the defendant must

show a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Id. Failure to make the

required showing of either deficient performance or sufficient prejudice defeats

the ineffectiveness claim. Id. at 813.

      This does not mean that an accused is entitled to errorless or perfect

counsel; the appellate court examines the totality of the representation and the

particular circumstances of each case in evaluating the effectiveness of counsel. Id;

See Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). An appellate court

must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. Strickland, 466 U.S. at 685. Under

normal circumstances, the record on direct appeal will not be sufficient to show

that counsel's representation was so deficient and so lacking in tactical or

strategic decision-making as to overcome the presumption that counsel's conduct

was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002).

                                          7
          It is the defendant’s burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Strickland, 466 U.S. at 687. A claim of ineffective

assistance of counsel must be firmly supported by the record. McFarland v. State,

928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

                                            ANALYSIS

          Appellant argues that approaching him on his bike and immediately asking

him “if he had a crack pipe” amounted to custodial interrogation. 1 That is not the

law, however, nor is that what occurred according to the officers.

          An investigative detention is a seizure, but is characterized by a lesser

amount of restraint on an individual. See Berkemer v. McCarty, 468 U.S. 420, 437–40,

104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Francis v. State, 922 S.W.2d 176, 178 (Tex.

Crim. App. 1996).              An investigative detention occurs when an individual is

temporarily detained by law enforcement officials for purposes of an investigation.

State v. Garcia, 25 S.W.3d 908, 911 (Tex. App. —Houston [14th Dist.] 2000, no pet.)

(citing Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995)). To detain

an individual for investigatory purposes, i.e., without a warrant, a police officer

need only have a reasonable, articulable suspicion that the individual has been, or

soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex.



1
    Appellant’s brief at 11.

                                                8
Crim. App. 2005). This is an objective standard that disregards any subjective

intent of the officer making the stop, and therefore we consider only whether an

objective basis for the stop exists. Id. In making a determination as to the

existence of reasonable suspicion, the totality of the circumstances is considered.

Id. at 492–93.

      An arrest, however, imposes a greater degree of restriction on an individual’s

freedom of movement than an investigatory detention. State v. Sheppard, 271 S.W.3d

281, 290 (Tex. Crim. App. 2008). Accordingly, an arrest must be justified by

probable cause as opposed to reasonable suspicion. Amores v. State, 816 S.W.2d 407,

411 (Tex. Crim. App. 1991).

      To determine whether a detention is merely for investigatory purposes or

amounts to an arrest, Texas courts use a totality of the circumstances approach.

Sheppard, 271 S.W.3d at 291; Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App.

2007). In making this determination, courts are to consider:

             [T]he amount of force displayed, the duration of a
             detention, the efficiency of the investigative process and
             whether it is conducted at the original location or the
             person is transported to another location, the officer’s
             expressed intent —that is, whether he told the detained
             person that he was under arrest or was being detained
             only for a temporary investigation, and any other
             relevant factors.
Sheppard, 271 S.W.3d at 291.




                                         9
      Moreover, custody is not established during an investigative detention

simply because the suspect is not able to leave until the investigation is completed.

Parker v. State, 710 S.W.2d 146, 147 (Tex. App. —Houston [14th Dist.] 1986, no pet.);

see also Turner v. State, 252 S.W.3d 571, 580 (Tex. App. —Houston [14th Dist.] 2008,

pet. ref’d) (holding that suspect was not in custody when officer handcuffed him

for officer safety while transporting him to police station). An officer’s evolving

but unarticulated suspicions do not affect the objective circumstances of an

interrogation or interview. Stansbury v. California, 511 U.S. 318, 323–24, 114 S.Ct.

1526, 128 L.Ed.2d 293 (1994).

      Appellant argues that he was subjected to custodial interrogation because

the officers told him to stop and shined a light on him. That, however, does not

turn the encounter into an arrest.      Although appellant testified the officers

immediately patted him down, he also claims he was clean and they found

nothing; yet, somehow, admittedly, they later found a gun in his waistband. (RRII

at 18-20). The officers testified they pulled him over for Class C violations (to

which appellant admits he committed) and “were simply talking to him” at the

point they asked him if he had anything illegal on him. (RRII at 15, 29, 46-49).

The only manifestation of probable cause occurred after the officers asked

appellant if he had anything illegal on him and appellant responded, “a crack pipe,”




                                         10
and then a crack pipe was located in his possession. Consequently, appellant was

placed under arrest and handcuffed.

      Appellant’s manifestation of probable cause through his statement

combined with his physical restraint from the handcuffs would lead a reasonable

person to believe that he was under restraint to the degree associated with an

arrest. It was at that time of his arrest that appellant’s investigative detention

evolved into custody.

      Because appellant was not in custody when he made the statement, Article

38.22 did not require it to be recorded or suppressed. Appellant’s counsel cannot

be found ineffective for failing to object to admissible testimony. See Ex parte White,

160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (holding counsel not ineffective for

failing to object to admissible testimony); see also Godwin v. State, 899 S.W.2d 387,

391 (Tex. App. —Houston [14th Dist.] 1995, pet. ref’d) (appellant’s counsel was

not ineffective for failing to obtain a ruling or a hearing on a motion to suppress

evidence that is clearly admissible). Appellant must show that a motion to

suppress would have been successful in order to show that his attorney did not

provide reasonable professional assistance.2 See Jackson v. State, 973 S.W.2d 954, 957



2
  Moreover, appellant’s counsel filed a Motion to Suppress the “fruits of [appellant’s]
arrest and detention” pursuant to Article 38.23. Appellant’s claims on appeal do not
mention Article 38.23 and appear to be focused on suppressing only his statement under
Article 38.22.

                                          11
(Tex. Crim. App. 1998). Appellant’s sole issue presented on appeal should be

overruled

                      ♦

                                CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.



                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas


                                                /s/ Bridget Holloway

                                                BRIDGET HOLLOWAY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                713.755.5826
                                                Texas Bar No. 24025227
                                                holloway_bridget@dao.hctx.net




                                       12
        CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE

      This is to certify: (a) that the word count of the computer program used to

prepare this document reports that there are 2138 words in the document; and (b)

that the undersigned attorney requested that a copy of this document be served to

appellant’s attorneys via TexFile at the following emails on September 30, 2015:



      Melissa Martin
      Assistant Public Defender
      Email: melissa.martin@pdo.hctx.net




                                                 /s/ Bridget Holloway

                                                 BRIDGET HOLLOWAY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 713.755.5826
                                                 Texas Bar No. 24025227
                                                 holloway_bridget@dao.hctx.net




                                        13
