                                                                              ACCEPTED
                                                                          01-17-00352-CR
                                                                FIRST COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                       3/19/2018 11:38 PM
                                                                     CHRISTOPHER PRINE
                                                                                   CLERK




                    No. 01-17-00352-CR                    FILED IN
                                                   1st COURT OF APPEALS
                                                       HOUSTON, TEXAS
                  In the Court of Appeals
                                                   3/19/2018 11:38:14 PM
                For the First District of Texas
                                                   CHRISTOPHER A. PRINE
                         At Houston                         Clerk
                    ♦
                        No. 1515550
                 In the 351st District Court
                  Of Harris County, Texas
                    ♦
                 Nelson Oroyo Rodriguez
                        Appellant
                              v.
                     The State of Texas
                          Appellee
                    ♦
                  State’s Appellate Brief
                    ♦



Clint Morgan                               Kim Ogg
Assistant District Attorney                District Attorney
Harris County, Texas                       Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net                Lisa Colins
                                           Joseph Allard
1310 Prairie, Suite 500                    Assistant District Attorneys
Houston, Texas 77002                       Harris County, Texas
Telephone: 713 274 5826


               Oral Argument Not Requested
                Statement Regarding Oral Argument

      The appellant requested oral argument because he believes it

“would serve to emphasize and clarify the important legal points

regarding this appeal.” (Appellant’s Brief at 7).1 The State believes the

legal points of this appeal are straightforward and well-covered by the

parties’ briefs. Accordingly, the State does not request oral argument.




1
 The only page in the appellant’s brief that is numbered is the cover. The State
will cite to the page numbers of the PDF file of the appellant’s brief.

                                       i
                    Identification of the Parties

Counsel for the State:

     Kim Ogg
          District Attorney of Harris County

     Lisa Collins & Joseph Allard
            Assistant District Attorneys at trial

     Clint Morgan
           — Assistant District Attorney on appeal

Appellant:

     Nelson Oroyo Rodriguez

Counsel for the Appellant:

     Jonathan Gluckman
           — Counsel at trial

     Tom Abbate
         — Counsel on appeal

Trial Court:

     A. Reagan Clark
           Presiding judge




                                  ii
                                 Table of Contents

Statement Regarding Oral Argument ................................... i
Identification of the Parties ............................................... ii
Table of Contents ........................................................... iii
Index of Authorities ........................................................ iv
Statement of the Case ...................................................... 1
Statement of Facts ........................................................... 1
Reply to Point One .......................................................... 3
  Police had probable cause to believe the appellant’s phone and shoes
  were evidence of a crime, thus police lawfully seized them under the
  plain view doctrine........................................................................3
Reply to Point Two ........................................................... 8
  The trial court’s finding that the appellant consented to police
  taking DNA samples and GSR swabs from his person is supported
  by the record and is not clearly erroneous. .....................................8
Conclusion ................................................................... 16
Certificate of Compliance and Service .............................. 17




                                             iii
                               Index of Authorities



Cases
Aguayo v. State
 No. 08-13-00283-CR, 2015 WL 6741873 (Tex. App.—
 El Paso Nov. 4, 2015, no pet.)
 (mem. op. not designated for publication) ....................................14
Arrick v. State
  107 S.W.3d 710 (Tex. App.—
  Austin 2003, pet. ref ’d) .............................................................6, 7
Derichsweiler v. State
 348 S.W.3d 906 (Tex. Crim. App. 2011) ....................................... 6
Martinez v. State
 91 S.W.3d 331 (Tex. Crim. App. 2002) ......................................... 5
Meekins v. State
 340 S.W.3d 454 (Tex. Crim. App. 2011) ....................................... 9
Schneckloth v. Bustamonte
  412 U.S. 218 (1973) ............................................................. 12, 14
State v. Betts
  397 S.W.3d 198 (Tex. Crim. App. 2013) ....................................... 6
State v. Roades
  No. 07-11-0077-CR, 2012 WL 6163107 (Tex. App.—
  Amarillo Dec. 11, 2012, no pet.)
  (mem. op. not designated for publication) ....................................13
United States v. Terry
 400 F.3d 575 (8th Cir. 2005) ....................................................... 7
United States v.Waldrop
 404 F.3d 365 (5th Cir. 2005) ....................................................... 8
United States v.Wells
 98 F.3d 808 (4th Cir. 1996) ......................................................... 7
Washburn v. State
 235 S.W.3d 346 (Tex. App.—
 Texarkana 2007, no pet.).............................................................13


                                             iv
Zarychta v. State
  44 S.W.3d 155 (Tex. App.—
  Houston [14th Dist.] 2001, pet. ref ’d) .......................................... 6


Statutes
TEX. TRANSP. CODE § 724.015.......................................................13




                                          v
                           Statement of the Case

      The appellant was indicted for capital murder. (1 CR 4). The appellant

pleaded not guilty but a jury found him guilty as charged. (4 RR 21; 2 CR

269). Because the State did not seek the death penalty, the trial court

assessed punishment at confinement for life without the possibility of parole.

(2 CR 272). The appellant filed a notice of appeal and the trial court

certified his right of appeal. (2 CR 276, 278).


                             Statement of Facts

      Osorio Gonzalez and Denelio Duarte sold drugs out of a house they

shared with three other people. (5 RR 16-18, 24). The appellant and three

others decided to break into the house and steal money and drugs. (5 RR

168-71, 194). When the robbers arrived at the house, no one was home;

rather than going in to steal the items non-violently, the robbers waited for

people to return to the house because part of their objective was to “get the

person that lived at the house.” (5 RR 174-75).

      Gonzalez, Duarte, and two of their housemates returned home from a

club around 3am. (5 RR 25). As they were filing into the house, the robbers

emerged from the shadows and forced their way inside. (5 RR 26-28, 182).

One robber held Duarte on the ground at gunpoint while Gonzalez ran into

a back room to get a gun. (5 RR 183, 187). Gonzalez and the appellant
                                 1
exchanged gun fire with each getting hit; Duarte was also shot. (4 RR 36; 5

RR 38-41, 188). The robbers fled the scene empty-handed, but Gonzlez died

from his injuries. (5 RR 195; 7 RR 19).

     The robbers dropped the appellant off at a nearby emergency room. (4

RR 201-04; 5 RR 191). Once he was stabilized, the appellant was

transported to the same hospital where Duarte was being treated and where

Gonzalez’s body was being held. (5 RR 240-41).

     Harris County Sheriff ’s Deputy Eric Frederick was dispatched to the

hospital to interview the appellant, who had reported he was the victim of an

aggravated robbery. (4 RR 77-78). The appellant said he got shot when two

black males robbed him of his phone and wallet outside a club. (4 RR 80).

Deputy Frederick doubted this story because he saw the appellant talking on

his cell phone, and because the appellant produced his identification from

his wallet. (4 RR 83). Police quickly connected the appellant to the home

invasion; ultimately, DNA tests would match the appellant to several blood

stains at the scene, the appellant’s cell phone showed he was at the scene at

the time of the robbery, and one of the other robbers testified against the

appellant at trial. (4 RR 86; 5 RR 164-195; 6 RR 151-60, 211-13).




                                     2
                              Reply to Point One


Police had probable cause to believe the appellant’s phone and shoes
were evidence of a crime, thus police lawfully seized them under the
plain view doctrine.

      At trial, the appellant raised an objection to the police seizure of his

phone and shoes while he was at the hospital. The appellant complained that

the warrantless seizure was unlawful. After a mid-trial hearing outside the

presence of the jury, the trial court overruled the objection. (See 4 RR 140-

164, 211-12). In his first point of error, the appellant complains that the trial

court’s ruling was erroneous. (Appellant’s Brief at 12-29).

      The only witness at the hearing was Daniel DellaSala, the crime scene

investigator for the Harris County Sheriff ’s Office who collected the

appellant’s belongings from the hospital. DellaSala testified that he and

another crime scene investigator, Billy Davis, were dispatched to the hospital

where the appellant and the two victims had been taken. (4 RR 142). At the

hearing, DellaSala testified that he took from the appellant’s hospital room

“[s]ome various clothing items … a wallet, as well as a cellphone….”2 (4 RR

145). DellaSala testified he took these items to preserve them for evidence.

(4 RR 145). He described numerous ways in which cell phones can provide


2
 After the hearing, he gave a more detailed description of what he took, specifically
mentioning, inter alia, “a pair of tennis shoes.” (4 RR 178).
                                         3
evidence of criminal offenses, as well as describing ways that data can be

deleted or altered on cell phones. (4 RR 145-47). However, DellaSala

testified that investigators typically get warrants before searching the data

inside a cell phone; indeed, though DellaSala seized the phone without a

warrant, no search of the phone’s contents was made in this case until a

warrant was obtained. (4 RR 158).

      After DellaSala’s testimony, the parties presented arguments. The

appellant conceded that DellaSala had probable cause to seize the phone,

but claimed that he needed a warrant to do so.3 (See 4 RR 156). The State

argued that the seizure was appropriate due to exigent circumstances. (4 RR

162, 164). After discussing the case with the parties, the trial court denied

the motion. (4 RR 164).

      In his brief, the appellant’s entire point revolves around DellaSala’s

testimony and the arguments at the hearing. However, a trial court’s ruling

on the admissibility of evidence is reviewed for an abuse of discretion and an

appellate court must affirm the decision if it was correct under any theory of

law applicable to the case, regardless of the arguments presented to the court

3
 Later, defense counsel explained to the trial court that he believed his objection covered
all of the items DellaSala seized, including his shoes. (4 RR 211-12). At that time, which
was before evidence from the shoes was admitted, the appellant “renewed” his objection
as regarded the seizure of his shoes and the trial court overruled the objection. (4 RR
212). The State will assume, without conceding, that the appellant preserved his
complaint regarding his shoes.
                                            4
or the stated basis of the trial court’s ruling. See Martinez v. State, 91 S.W.3d

331, 336 (Tex. Crim. App. 2002).

      Prior to the hearing, the State had presented the testimony of Deputy

Eric Fredrick. Fredrick had been dispatched to investigate the appellant’s

report that he had been shot during a robbery. (4 RR 78). The appellant told

Fredrick that “two unknown black males” had jumped him outside the

Mekano Club off Richmond Ave. in Houston. (4 RR 80-81, 84). The

appellant told Frederick that the “two unknown black males” had taken his

wallet and his cell phone. (4 RR 83).

      However, Fredrick called dispatch and was told that there had been no

reports of shots fired near the Mekano Club. (4 RR 82). Fredrick also

observed the appellant talking on a cell phone, and the appellant produced

identification from his wallet, leading Fredrick to suspect that the robbery

story was not the truth. (4 RR 83). Fredrick was also aware that there had

been a shootout at a home invasion robbery very near the hospital, which,

combined with the appellant’s fake cover story, led Fredrick to believe the

appellant might be connected to that robbery. (4 RR 84-85). After speaking

with the appellant, Fredrick contacted his supervisors and relayed his

suspicions about the appellant’s “conflicting story.” (4 RR 87). The

supervisor dispatched DellaSala and Davis to the hospital. (4 RR 87).

                                        5
      When police officers are lawfully in a location and see an item whose

nature as contraband or evidence is immediately apparent, police may seize

the item under the plain view exception to the warrant requirement. State v.

Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013); Arrick v. State, 107

S.W.3d 710, 719 (Tex. App.—Austin 2003, pet. ref’d). The test for whether

the incriminating nature of the item is “immediately apparent” is whether,

without conducting any additional searches, police have probable cause to

believe the item is contraband or evidence. Zarychta v. State, 44 S.W.3d 155,

166–67 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Whether

probable cause exists in a particular case is not determined by looking at the

knowledge of a particular officer, but by looking at the combined knowledge

of all cooperating police officers. See Derichsweiler v. State, 348 S.W.3d 906,

912 (Tex. Crim. App. 2011) (when determining whether police had

reasonable suspicion for warrantless detention, reviewing court looks at

collective knowledge of all cooperating police); Woodward v. State, 668

S.W.2d 337, 344 (Tex. Crim. App. 1982) (op. on reh’g) (when determining

whether police had probable cause for warrantless arrest, reviewing court

looks at collective knowledge of police).

      In this case, Fredrick had probable cause to suspect that the

appellant’s phone and clothing might contain evidence of several crimes —

                                       6
the uncorroborated aggravated robbery that the appellant reported being the

victim of; the false report to a police officer that Frederick suspected the

appellant of; and the deadly home invasion that seemed to fit the facts of the

situation. By providing evidence of the            appellant’s locations and

communications, the cell phone could prove or disprove any of these

offenses. The appellant’s clothing likewise would probably contain residual

forensic evidence that would constitute evidence of these offenses. See Arrick,

107 S.W.3d at 719 (belief that killer wore footwear at time of offense

provided probable cause to seize footwear).

      Because DellaSala was collecting evidence based on the report

submitted by Fredrick — indeed, while Fredrick was still at the hospital —

the collective knowledge doctrine imputes to DellaSala Frederick’s

knowledge relating to probable cause. See United States v. Wells, 98 F.3d 808,

810 (4th Cir. 1996) (where officer who conducted warrantless seizure of

firearm from defendant did not personally have knowledge that defendant

was felon but other officers in investigation were aware of that fact, collective

knowledge and plain view doctrines justified seizure); United States v. Terry,

400 F.3d 575, 581 (8th Cir. 2005) (“We impute information [supporting

probable cause] if there has been ‘some degree of communication’ between

the officers. This requirement distinguishes officers functioning as a team

                                       7
from officers acting as independent actors who merely happen to be

investigating the same subject.”); United States v. Waldrop, 404 F.3d 365, 370

(5th Cir. 2005) (applying collective knowledge and plain view doctrines to

justify warrantless seizure); (see also 4 RR 156 (defense counsel conceding to

trial court that police had probable cause to seize the phone and

belongings)). Because DellaSala had probable cause to believe the cell phone

and shoes constituted evidence of an offense, and because these items were

in plain view, DellaSala was justified in seizing them and the trial court did

not err in overruling the appellant’s objection.


                             Reply to Point Two


The trial court’s finding that the appellant consented to police taking
DNA samples and GSR swabs from his person is supported by the
record and is not clearly erroneous.

      While the appellant was in the hospital, he consented to police taking a

buccal swab sample of his DNA, and swabbing his hands for gun-shot

residue. Prior to trial the appellant filed a motion to suppress the resulting

evidence, claiming that his consent was not effective. (2 CR 189). After a

pre-trial hearing the trial court denied this motion. (2 RR 119). In his

second point of error the appellant claims that the trial court’s ruling was

erroneous. (Appellant’s Brief at 30-45).

                                       8
      Although the Fourth Amendment generally requires a warrant before

police may conduct a search, one of the recognized exceptions to that

requirement is if the subject of the search voluntarily consents. Meekins v.

State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011). Whether a particular

subject’s consent was voluntary is a fact question that, if challenged, a trial

court will determine based on the totality of the circumstances. Id. at 459-

60. The burden of proof in the trial court is whether voluntariness is proven

by clear and convincing evidence. Ibid. On appeal, a trial court’s finding of

volunatriness must be afforded great deference and will be disturbed only if

it is “clearly erroneous.” Id. at 460. The Court of Criminal Appeals laid out

the appropriate question for appellate courts reviewing a trial court’s

determination of voluntariness: “Could a rational trier of fact conclude, by

clear and convincing evidence (less than beyond a reasonable doubt), based

upon all of the facts and logical inferences that can be drawn from those

facts, that [the subject] voluntarily consented to the search?” Id. at 459 n.

24.

      The State presented three witnesses at the hearing. The first was

Cassandra Kendrick, an emergency-room nurse who helped treat the

appellant. (2 RR 8). Kendrick said that she was able to communicate with

the appellant in English. (2 RR 15-16). She characterized the appellant as

                                      9
“alert and awake.” (2 RR 20). She remembered going over with the

appellant consent for an operation; she believed the appellant was capable of

consent at the time, and he initialed and signed the relevant paperwork as

needed. (2 RR 24-25). She said the hospital had procedures for patients who

were incapacitated and could not consent to surgery, but those procedures

were not implemented in this case. (2 RR 26).

     The next witness was Deputy Billy Davis, a crime scene investigator

with the Harris County Sheriff’s Department. (2 RR 43-44). Davis said that

he was under the impression that the appellant could not speak Spanish, so

he made use of a Spanish-speaking deputy to serve as a translator. (2 RR 48-

49). Davis said that he explained to the appellant that he wanted to do both

a gun-shot residue (GSR) collection and a DNA collection. (2 RR 50).

Davis said that the appellant was able to communicate, and that everyone

spoke in a normal tone of voice. (2 RR 51). Davis said that he had the

translator advise the appellant he could refuse consent. (2 RR 52). Davis

said the appellant was polite and cooperative. (2 RR 52-53). Davis said he

neither threatened the appellant nor demanded that he sign the consent

form. (2 RR 56). Davis said that he never saw the appellant become

incoherent. (2 RR 58)-59). Davis said that the appellant appeared to be in

pain, but he never drifted out of consciousness. (5 RR 71).

                                     10
      Deputy Jorge Reyes testified that he served as a translator for Davis. (2

RR 76-77). Reyes said that he spoke with the appellant in a “regular” tone

and never raised his voice. (2 RR 77). Reyes said that as he translated what

Davis said, he made it clear that it was the appellant’s choice whether to

consent. (2 RR 79). Reyes said that the appellant never drifted out of

consciousness while he was speaking with him. (2 RR 81). Reyes said that

the appellant never said he did not wish to speak with police, but remained

cooperative the whole time. (2 RR 81). Reyes said that he walked the

appellant through a Spanish-language consent form, and the appellant

signed it. (2 RR 82-84; State’s Ex. 2 (8A RR 239)).

      After these witnesses, the appellant testified. He claimed he did not

remember anything that the officers testified about and did not remember

signing the consent form. (2 RR 105).

      The parties then presented arguments. Defense counsel argued that

the appellant may have been on morphine at the time.4 (2 RR 109). Defense

counsel argued that police could have obtained a warrant. (2 RR 110-11).

Defense counsel argued that the appellant was not free to leave at the time,

and the deputies should have Mirandized the appellant. (2 RR 112-13).



4
 As defense counsel later admitted, the record on this point was not clear. (2 RR 113-
14).
                                         11
      The prosecutor responded by pointing out that the fact that officers

could have obtained a warrant did not mean consent was insufficient. (2 RR

116). The prosecutor pointed out that case law focuses on the behavior and

demeanor of the officers seeking consent, and the evidence showed that the

officers here spoke calmly and did not threaten the appellant. (2 RR 116-

17). The prosecutor further pointed out that at the time the officers

interacted with him the appellant had reported being the victim of a crime,

thus there seemed little reason for them to intimidate him. (2 RR 117). The

prosecutor disputed defense counsel’s claim that the appellant was on

morphine, but then noted that drug use “does not bar the ability to give

consent, as long as they showing that they are able to understand what is

being asked of them and able to give that consent.” (2 RR 117-18). The

prosecutor reiterated the deputies’ testimony that the appellant seemed alert

and interactive. (2RR 118). The trial court found that the appellant’s

consent to the search was voluntary. (2 RR 119).

      On appeal, the appellant claims that his consent was involuntary

because his will was overborne. (Appellant’s Brief at 38 (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973))). In Schneckloth, the Supreme Court

reviewed cases where it had been asked to determine whether a statement

was given voluntarily. The court listed several factors it had considered in

                                      12
those cases: The “youth” of the accused, his lack of education, his low

intelligence, the lack of any advice regarding constitutional rights, the length

of detention, the repeated and prolonged nature of the questioning, and the

use of physical punishment such as the deprivation of food or sleep. 412 U.S

at 226. The court emphasized that none of these factors standing alone was

determinative. Id. at 226-27.

         The appellant adduced no evidence that he was particularly young,5

ill-educated, or of low intelligence. The appellant admits that the deputies’

questioning was not repetitive, and that the length of detention (if any) was

not overly long. (Appellant’s Brief at 39).

         The appellant claims that because he was not Mirandized or read “any

warnings or admonishment like those contained in the DIC-23[6] [sic] forms”

that is a factor that weighs in his favor. (Appellant’s Brief at 39). However,

both deputies testified that they told the appellant he was free to refuse


5
    Medical records show that the appellant was 30 years old at the time. (8A RR 16).
6
  The DIC-24 is a statutory warning read to DWI suspects in Texas that advises them of
the administrative consequences of refusing to provide a requested blood or breath
specimen. See, e.g. Washburn v. State, 235 S.W.3d 346, 351 (Tex. App.—Texarkana 2007,
no pet.); TEX. TRANSP. CODE § 724.015. The relevance of the DIC-24 here is not
obvious. If a defendant voluntarily consents to give a breath or blood sample, an officer’s
failure to read a DWI suspect the DIC-24 is of no legal significance. State v. Roades, No.
07-11-0077-CR, 2012 WL 6163107, at *3 (Tex. App.—Amarillo Dec. 11, 2012, no pet.)
(mem. op. not designated for publication). Moreover, the appellant would not have faced
any legal consequences had he refused consent to search, thus there was nothing
equivalent to the DIC-24 that could have been read to him.
                                             13
consent. (2 RR 52, 79). When viewed with appropriate deference to the trial

court’s findings, this factor weighs in favor of the State.

      The appellant’s only remaining argument is that “the psychological

impact of being questioned immediately prior to having a bullet surgically

removed from one’s person weighs in his favor and overrides many, if not all

other concerns.” (Appellant’s Brief at 40). The appellant does not cite to any

authority for this proposition and the State is aware of none. All cases

involving questions of consent are determined by the totality of the

circumstances, not any particular factor. Schneckloth, 412 U.S. at 226-27. If

the appellant was in pain, that is certainly that something that can factor into

the analysis, but in this case the trial court had before it the testimony from

two officers and a nurse that the appellant seemed lucid, alert, and

cooperative at the relevant time period. Given that testimony, the State

submits that the appellant’s assertions of pain are not sufficient to show that

the trial court’s finding of voluntariness was clearly erroneous. See Rayford v.

State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003) (holding consent to

search was voluntary despite defendant undergoing medical procedures and

complaining of pain); Aguayo v. State, No. 08-13-00283-CR, 2015 WL

6741873, at *2, *4 (Tex. App.—El Paso Nov. 4, 2015, no pet.) (mem. op.

not designated for publication) (same). Accordingly, the trial court did not

                                       14
err in overruling the appellant’s objection and this Court should reject his

second point.




                                    15
                          Conclusion

The State asks this Court to affirm the judgment of the trial court.



                                       KIM OGG
                                       District Attorney
                                       Harris County, Texas


                                       /s/ C.A. Morgan
                                       CLINT MORGAN
                                       Assistant District Attorney
                                       Harris County, Texas
                                       1310 Prairie, Suite 500
                                       Houston, Texas 77002
                                       Telephone: 713 274 5826
                                       Texas Bar No. 24071454




                               16
                  Certificate of Compliance and Service

      I certify that, according to Microsoft Word, the portion of this brief for

which Rule of Appellate Procedure 9.4(i)(1) requires a word count contains

3,303 words.

      I also certify that I have requested that efile.txcourts.gov electronically

serve a copy of this brief to:

      Tom Abbate
      tom@tomabbatelaw.com
                                              /s/ C.A. Morgan
                                              CLINT MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1310 Prairie, Suite 500
                                              Houston, Texas 77002
                                              Telephone: 713 274 5826
                                              Texas Bar No. 24071454


Date: March 19, 2018




                                       17
