                                                                                     ACCEPTED
                                                                                 01-15-00054-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                            6/16/2015 9:56:59 AM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                      NO. 01-15-00053-CR
                      NO. 01-15-00054-CR
                                                             FILED IN
                 IN THE COURT OF APPEALS              1st COURT OF APPEALS
                                                          HOUSTON, TEXAS
              FOR THE FIRST DISTRICT OF TEXAS         6/16/2015 9:56:59 AM
                                                      CHRISTOPHER A. PRINE
                                                              Clerk
                        DAMIAN SCOTT

                            Appellant

                               v.

                     THE STATE OF TEXAS
                            Appellee


      On Appeal from Cause Numbers 1410122 & 1410123
      From the 174th District Court of Harris County, Texas



                    BRIEF FOR APPELLANT



ORAL ARGUMENT REQUESTED                   ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County, Texas

                                          MELISSA MARTIN
                                          Assistant Public Defender
                                          Harris County, Texas
                                          TBN. 24002532
                                          1201 Franklin, 13th floor
                                          Houston, Texas 77002
                                          Phone: (713) 368-0016
                                          Fax: (713) 437-4319

                                          Counsel for Appellant
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Damian Scott
                                      SPN# 01891026
                                      701 N San Jacinto St
                                      Houston, TX 77002

TRIAL PROSECUTORS:                    Gretchen Flader
                                      Assistant District Attorney
                                      Harris County, Texas
                                      1201 Franklin Avenue, 6th Fl
                                      Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:             Paul St. John
                                      Attorney at Law
                                      111 W 15th St
                                      Houston, Texas 77008

PRESIDING JUDGE:                      Hon. Ruben Guerrero
                                      174th District Court
                                      Harris County, Texas
                                      1201 Franklin Avenue, 19th Fl
                                      Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT:      Melissa Martin
                                      Assistant Public Defender
                                      Harris County, Texas
                                      1201 Franklin Avenue, 13th floor
                                      Houston, Texas 77002




                              ii
                                                       TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

INDEX OF AUTHORITIES ........................................................................................................ v

STATEMENT OF THE CASE...................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................ 1

ISSUE PRESENTED ................................................................................................................... 2

                Defense counsel at trial was ineffective because he failed to attempt
          to suppress Mr. Scott’s alleged response to officer’s question as to whether
          he had a crack pipe in his pocket. The record demonstrates:

                (a) appellant was in custody at the time the officer allegedly the
                question and the Fourth Amendment required he be apprised of
                his rights under Miranda v. Arizona, 384 U.S. 436 (1966) prior to
                being interrogated and;

                (b) the alleged statement was obtained during a custodial
                interrogation and required appellant be apprised of his rights as
                enumerated in Art. 38.22(a) §3 prior to questioning. Tex. Code
                Crim. Proc., Art. 38.22(a) §3.

                But for the alleged statement the officers would have had no
          authority to arrest appellant and would not have found either the crack
          pipe or the pistol. Tex. Code Crim. Proc. Art. 14.3(6) and the motion to
          suppress would either have been granted or error preserved.

SUMMARY OF THE ARGUMENT .............................................................................................. 3

ARGUMENT .............................................................................................................................. 4

     A. STANDARD OF REVIEW ............................................................................................... 4

          1. INEFFECTIVE ASSISTANCE OF COUNSEL............................................................. 4

                                                                   iii
          2. MOTIONS TO SUPPRESS ......................................................................................... 5

          3. APPLICABLE FOURTH AMENDMENT AND STATUTORY LAW............................. 6

                (A). TRAFFIC STOPS ................................................................................................ 7

                (B). PEACE OFFICERS’ AUTHORITY TO MAKE A WARRANTLESS ARREST ............ 8


     B. APPLICATION ............................................................................................................... 9


          1. THE TRAFFIC STOP WAS AN INVESTIGATIVE DETENTION ................................. 9

          2. THE QUESTION BEGAN A CUSTODIAL INTERROGATION ................................. 11

          3. ART. 14.3 (A)(6) DID NOT AUTHORIZE MR. SCOTT’S WARRANTLESS ARREST 12


     C. INEFFECTIVE ASSISTANCE OF COUNSEL ................................................................ 13

          1. DEFICIENT PERFORMANCE ................................................................................ 13

          2. PREJUDICE ............................................................................................................ 14



PRAYER .................................................................................................................................. 15

CERTIFICATE OF SERVICE .................................................................................................... 15

CERTIFICATE OF COMPLIANCE............................................................................................ 16




                                                                    iv
                                            INDEX OF AUTHORITIES

Cases

Andrews v. State, 159 S.W. 3d 98 (citations omitted) ........................................................... 5

Berkemer v. McCarty, 468 U.S. 420(1984)............................................................................... 7

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) .......................................................... 5

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) .................................................... 7, 9

Davis v. State, 947 S.W. 2d. 240 (Tex. Crim. App. 1997) .................................................... 7

Dowthitt v.State, 931 S.W.2d 244 (Tex. Crim. App. 1996) ................................................. 12

Francis v. State, 896 S.W. 2d, 408 (Tex.App.—Houston [1st Dist.] 1995) ......................... 7

Johnson v. State, 414 S.W.3d 184 (Tex. Crim. App. 2013) ..........................................passim

Kothe v. State, 152 S.W.3d at 63 .......................................................................................... 6, 7

Miranda v. Arizona, 384 U.S. 436 (1966). .....................................................................passim

Ohio v. Robinette, 519 U.S.33, 39 (1996)................................................................................. 7

Ortiz v. State, 382 S.W.3d 367, 371 (Tex. Crim. App. 2012) .................................. 7, 12, 13

Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)*per curiam) ............................................... 7

State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011). ..................................... 8

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) ................................. 6

State v. Kerwick, 393 S.W. 3d 270, 273 (Tex. Crim. App. 2013) ............................. 6, 10, 14

Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879 (1968) .................................................... 7




                                                               v
Statutes

Tex. Code Crim. Proc. Art. 14.3(6) ...................................................................................... 3

Tex. Code Crim. Proc. Art. 14.3(a)(6)............................................................................ 8, 12


Tex. Code Crim. Proc. Art. 38.22 §2(a) (1)-(5) ................................................................... 8

Tex. Code Crim. Proc. Art. 38.22 §2(b)............................................................................... 8

Tex. Code Crim. Proc. Art. 38.22 § 3 ........................................................................ 3, 4, 13

Tex. Code Crim. Proc. Art. 38.22 §3(a) ......................................................................... 3, 12

Tex. Code Crim. Proc. Art. 38.22 §3(a) (1)-(5) ................................................................... 8


Constitutional Provisions

Tex. Const. Art.1, §9 ............................................................................................................ 11

U.S. Const. Amend. IV ............................................................................................3, 6, 7, 11

U.S. Const. Amend. V.......................................................................................................... 11




                                                                 vi
                                 Statement of the Case

       Damian Scott, appellant, was charged by indictment with two offenses: felon in

possession of a weapon, Cause No. 01-15-00053-CR, and evading arrest and detention,

Cause Number 01-14-00054. On December 2, 2014 the trial court denied appellant’s

Motion to Suppress the detention, arrest, and fruits of illegal search and, during the

ensuing bench trial, appellant pleaded guilty. The trial court sentenced him to serve six

years on the felon-in-possession charge and four years on the evading arrest and

detention charge in the Institutional Division of the Texas Department of Criminal

Justice; the sentences to be served concurrently. There was no motion for new trial.

                                   Statement of Facts

       On December 1, 2013 Houston Police Department (HPD) Officers Brewster

and Rothberg stopped Mr. Scott, who was riding his bicycle down Scott Street late at

night, for traffic violations (2 R.R. at 22-23). The alleged violations were having no

headlight on the bicycle, swerving “back and forth in the lanes,” and failing to signal a

turn (2 R.R. at 21-22).

       Brewster testified the stop involved pulling up in the fully marked patrol car

“with our lights and strobes and everything,” shining the spotlight at him, and telling

him to “stop riding his bicycle, at which point he did” (2 R.R. at 23).

       Mr. Scott testified at the motion to suppress that, prior to arresting him, the

officers asked him for consent to search him, he refused, and they searched him anyway

(2 R.R. at 11). The search, if it occurred, yielded a crack pipe and a pistol (2 R.R. at 11).
                                             1
       Officers Brewster and Rothberg, on the other hand, testified that they asked Mr.

Scott to identify himself and told him why they had stopped him (2 R.R. at 23). After

that, Brewster told the trial court the following:

              And, as usual, what I always do is I ask people if they have anything
              illegal on them, primarily any kind of narcotics or any kind of
              weapons. At which point, the defendant advised me and my partner
              he had a crack pipe on him, which is illegal.

       Q.     Did he say the word crack pipe or did he use any kind of different
              lingo?

       A.     He – I believe I asked him if he had a crack pipe on him and he
              said: Yes, I have a crack pipe on me.

       Q.     Okay. Did he tell you where it was?

       A.     He said it was in his jacket pocket in the front.

       Q.     After he told you that, did you have probable cause to search him?

       A.     Yes.

(2 R.R. at 24).

       The officers testified that they discovered the gun as they were cuffing appellant’s

hands behind his back (2 R.R. at 23). When the officers retrieved the pistol, appellant

ran off (2 R.R. at 16).     At no point in the record does it appear that Mr. Scott was

apprised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

                                    Issue Presented

       One: Defense counsel at trial was ineffective because he failed to attempt
       to suppress Mr. Scott’s alleged response to officer’s question as to whether
       he had a crack pipe in his pocket. The record demonstrates:

                                             2
             (a) appellant was in custody at the time the officer allegedly the
             question and the Fourth Amendment required he be apprised of
             his rights under Miranda v. Arizona, 384 U.S. 436 (1966) prior to
             being interrogated and;

             (b) the alleged statement was obtained during a custodial
             interrogation and required appellant be apprised of his rights as
             enumerated in Art. 38.22(a) §3 prior to questioning. Tex. Code
             Crim. Proc., Art. 38.22(a) §3.

            But for the alleged statement the officers would have had no
      authority to arrest appellant and would not have found either the crack
      pipe or the pistol. Tex. Code Crim. Proc. Art. 14.3(6) and the motion to
      suppress would either have been granted or error preserved.

                                  Summary of Argument

      The officers’ show of authority, in addition to Brewster’s asking appellant if he

“had a crack pipe on him,” constituted an investigative detention requiring the officers

apprise him of his rights under the Fourth Amendment prior to questioning him. Johnson

v. State, 414 S.W.3d 184(2013).

      Article 14.3(6) authorizes peace officers to arrest, without a warrant, a person

who makes a statement to the officer that would be admissible under art. 38.22 and

establishes probable cause to believe the person has committed a felony. Tex. Code

Crim. Proc. Art. 14.3(6). Article 38.22, Section (3) prohibits the admission of oral

custodial statements unless the person has been given the warnings required by the

Fifth Amendment. Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code Crim. Proc. Art.

38.22 § 3.



                                             3
      Mr. Scott was in custody when the officer asked him the question eliciting the

incriminating answer; no reasonable person would have felt free to leave under the

circumstances of the stop. See Johnson v. State, 414 S.W.3d 184 (Tex. Crim. App. 2013).

The arrest was illegal because the record indicates no evidence that Mr. Scott was

apprised of his rights prior to being interrogated or that the statement was recorded.

Tex. Code Crim. Proc. Art. 38.22, § 3).

      Failure to attempt to suppress the statement was deficient on its face and

undermines confidence in the outcome of the proceeding. Strickland v. Washington, 466

U.S. 668 (1984)

                                       Argument

A.    Standard of Review

             1. Ineffective Assistance of Counsel

      The Court of Criminal Appeals in Hernandez v. State, 726 S.W. 2d 53 (Tex. App.

1986), adopted the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668,

694 (1984) to determine whether counsel has been constitutionally ineffective. To have

a conviction reversed on the grounds of ineffective assistance of counsel an appellant

must show that (1) counsel’s representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced the appellant. Strickland,

466 U.S. at 687.

      Appellate courts’ review of counsel’s performance must be highly deferential. Id.

“There is a strong presumption that counsel’s conduct falls within a wide range of
                                            4
reasonable professional assistance, and the defendant must overcome the presumption.

We determine the reasonableness of counsel’s challenged conduct in context, and view

it as of the time of counsel’s conduct.” Andrews v. State, 159 S.W. 3d 98, 101 (Tex. Crim.

App. 2005)(citations omitted).

       The record on appeal is in almost all cases inadequate to show that counsel’s

conduct fell below and objectively reasonable standard of performance and that the

better course is to pursue the claim in habeas proceedings. Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002). But when no reasonable trial strategy could justify counsel’s

conduct, counsel’s conduct falls below an objective standard of reasonableness as a

matter of law, regardless of whether the record adequately reflects the trial counsel’s

subjective reasons for acting as she did. Strickland, supra, at 690.

       We do not require that the appellant show that there would have been a
       different result if counsel’s performance had not been deficient. The
       defendant must show only 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.

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005), citing Strickland, supra, at

694.

       2.     Motions to Suppress

       Appellate courts review a trial court’s ruling on a motions to suppress in the light

most favorable to the ruling. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App.

2013). When the trial court makes no explicit findings of fact, as in the instant case, the

                                              5
appellate court infers the necessary factual findings that support the trial court’s ruling

if the record evidence, viewed in the light most favorable to the ruling, supports these

implied fact findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

       Motions to suppress are reviewed pursuant to a bifurcated standard under which

the “[t]he trial judge’s determinations of historical facts and mixed questions of law and

fact that rely on credibility are granted almost total deference when supported by the

record. But when mixed questions of law and fact do not depend on credibility and

demeanor, we review the trial court’s ruling de novo.” State v. Kerwick, 393 S.W. 3d 270,

273 (Tex. Crim. App. 2013).

       On appeal, the question of whether a specific search or seizure is
       “reasonable” under the Fourth Amendment is subject to de novo review.23
       Despite its fact-sensitive analysis, “reasonableness” is ultimately a
       question of substantive Fourth Amendment law.24 It is true that, in
       assessing this legal issue, courts give great deference to the trial court's
       findings of historical fact.25 However, questions involving legal principles
       and the application of law to established *63 facts are properly reviewed
       de novo.26 Thus, in deciding whether [petitioner]’s [seizure] was
       “reasonable” under the specific circumstances, we view the trial court's
       factual findings in the light most favorable to his ruling, but we decide the
       issue of “reasonableness” as a question of Fourth Amendment law under
       Supreme Court precedent.

Kothe, 152 S.W.3d at 62-63.

       3.     Applicable Fourth Amendment and Statutory Law

       The Fourth Amendment protects individuals against unreasonable searches and

seizures. U.S. Constitution, Am. IV. There are three categories of police-civilian

contacts: casual encounter, investigative detention, and seizure. Francis v. State, 896 S.W.

                                             6
2d, 408-409 (Tex.App.—Houston [1st Dist.] 1995); Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct.

1868, 1879 (1968).

             (a)     Traffic stops.

       Whether or not a traffic stop is a casual encounter or an investigative detention

under the Fourth Amendment depends on whether the police actions and/or words

used to initiate the stop would convey to a reasonable person that he is free to walk

away. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010); Johnson v. State, 414

S.W.3d at 193. In making the custody determination, the primary question is whether a

reasonable person would perceive the detention to be a restraint on his movement

comparable to a formal arrest, given all the objective circumstances. Ortiz v. State, 382

S.W.3d 367, 371 (Tex. Crim. App. 2012), citing Berkemer v. McCarty, 468 U.S. 420,

441(1984).

       If the stop is or becomes an investigative detention, the length and scope of the

detention must be reasonable. Davis v. State, 947 S.W. 2d. 240, 243, 245 (Tex. Crim.

App. 1997). “Reasonableness” under the Fourth Amendment is measured “in objective

terms by examining the totality of the circumstances” and “eschew[s] bright-line rules,

instead emphasizing the fact-specific nature of the … inquiry.” Ohio v. Robinette, 519

U.S.33, 39 (1996), as cited in Kothe v. State, 152 S.W.3d at 63. It requires a balance

between the public interest served and the individual’s right to be free from arbitrary

detentions and intrusions. Id, citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)*per

curiam).
                                           7
       To justify an investigative detention, the police officer must be able to point to

specific and articulable facts which, taken together, with rational inferences from those

facts and the officer’s experience and general knowledge, lead him to conclude that the

person detained actually, is, has been, or soon will be engaged in criminal activity. State

v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011).

              (b)    Peace officers’ authority to make a warrantless arrest.

       Article 14.3, §(a)6 authorizes the warrantless arrest of “a person who makes a

statement to the peace officer that would be admissible against the person under Article

38.21 and establishes probable cause to believe that the person has committed a felony.”

Tex. Code Crim. Proc. Art. 14.3(a)(6).

       Article 38.22 governs statements made by an accused that may or may not be

used against him. Section 3 prohibits the use of an oral statement made by the defendant

during a custodial interview unless (1)the statement is recorded; (2) prior to making the

statement, the accused has been advised of the rights contained in section 2 of the

article, (3) the recording device was capable of making an accurate recording, the

operator was competent, and the recording is accurate and has not been altered; (4) all

voices are identified; and (5) not later than 20 days before the date of the proceeding

the attorney representing the defendant is provided with a true, complete, and accurate

copy of all recordings of the defendant made under the article. Tex. Code Crim. Proc.,

Art. 38.22 §2(a)(1)-(5) &(b); §3(a)(1)-(5).


                                              8
B.     Application

       1.     The traffic stop was an investigative detention.

       Officer Brewster described the stop as follows:

              We stopped him. We pulled up in our police vehicle that’s fully
              marked, says Houston Police on the side with our lights and strobes
              and everything. I was the driver that night, so I had access to the
              spotlight. I lit him up so we could see him. My partner had his
              window rolled down and he verbally told the defendant to stop
              riding his bicycle, at which point he did. And we began speaking to
              him.

(2 R.R. at 23).

       Mr. Scott stated “I was pulled over – I stopped, I submitted, and they pulled –

they shined the light on me and went in front of me and cut me off” (2 R.R. at 8). The

two accounts of the initial part of the stop are consistent with one another.

       An investigative detention, which implicates Fourth Amendment protections,

“occurs when a person yields to the police officer’s show of authority under a

reasonable belief that he is not free to leave.” Crain, 315 S.W.3d at 49.      In Johnson v.

State, the Court of Criminal Appeals reviewed factors the court of appeals had

considered in determining whether a detention had occurred, namely:

       … that the officer: 1) approached appellant's vehicle, which was backed
       into a parking spot outside the gate of an apartment complex at night with
       its lights on and engine running; 2) parked his police vehicle at an angle
       that at least partially blocked appellant's egress but did not prevent him
       from “maneuvering” around the officer and driving away; 3) shined his
       police vehicle's spotlight inside appellant's car; 4) did not activate his siren
       or emergency lights or use a bullhorn or loudspeaker to communicate with
       appellant; 5) approached appellant's car and asked, “What's going on, what
       are you doing out here?” and requested appellant's identification; and 6)
                                              9
       did not carry a flashlight, draw a weapon, order appellant to put his hands
       up, or otherwise inform appellant that he was being detained. Johnson, 359
       S.W.3d at 733.

Johnson v. State, 414 S.W.3d 184, 193 (Tex. Crim. App. 2013).

       In Johnson, the intermediate court had had before it a trial court’s ruling denying

the motion to suppress in that case wherein the trial court had made no explicit findings

as to whether a detention had occurred. The court of appeals reviewed the evidence “in

the requisite light most favorable to the trial court’s ruling and infer the necessary factual

findings that support the trial court’s ruling if the evidence supports those findings”

Johnson, 414 S.W.3d at 192-93. The intermediate court then decided the evidence

supported the trial court’s implicit finding that there was no detention under those

circumstances. Id at 193.

       The Court of Criminal Appeals pointed out that the lower court should have

reviewed the issue of encounter versus detention de novo. See Kerwick, 393 S.W.3d at 273).

The Court then concluded that under the totality of circumstances listed above, “a

reasonable person would not have felt free to leave or decline the officer’s requests.”

Id. The Court explained:

       We point out that the officer's shining of a “pretty darn bright” high-beam
       spotlight onto a person sitting in a parked vehicle, parking the police car
       in such a way as to at least partially block the person's vehicle such that
       the person would have had to “maneuver” around the police car to drive
       away, using a “loud authoritative voice” in speaking with the person,
       asking “what's going on,” and demanding identification manifests a
       detention, that is, an interaction that a reasonable person would not feel
       free to terminate. While none of these circumstances individually would
       necessarily lead to an inescapable conclusion that the person was detained,
                                             10
       under the totality of these circumstances, we conclude that appellant
       was indeed detained—perhaps when the officer shined a bright
       light on him in his car, but certainly when the officer blocked
       appellant's car such that appellant would have had to “maneuver”
       his car from its parking place if he wished to terminate the
       interaction—thus implicating Fourth Amendment protections. On
       this record, the trial court could not reasonably have concluded that a
       reasonable *194 person in appellant's shoes would have felt free to
       disregard the officer's approach, show of authority, and commands or felt
       free to terminate the interaction.

Johnson, 414 S.W.3d at 193-94.

       In this case, the police pulled in front of a man on a bicycle, “with [their] lights

and strobes and everything,” shined a spotlight shined on him, and demanded he stop

riding his bicycle and, according to Brewster, asked him whether he had a crack pipe

on him even before he checked for warrants (2 R.R. at 23).

       2. The question began a custodial interrogation.

       Once the police activity had caused Mr. Scott to yield to the officers’ show of

authority and asked him who he was and where he was going, Officer Brewster made

clear he suspected him of criminal activity beyond the traffic offenses. In asking him

whether he had a crack pipe, the officer began an interrogation into a different crime.

       Under the totality of these circumstances, no reasonable person would have felt

free to terminate the interaction. The officers should have apprised Mr. Scott of his

rights under Miranda. U.S. Const. Ams. IV, V; Tex. Const., Art.1, §9.1


1
 In an Addendum to its opinion in State v. Ortiz, the Court of Criminal Appeals made clear that the
defendant does not have to show he fits into one of the four categories enumerated in that case: “The
Dowthitt categories were intended to be merely descriptive, not exhaustive. We held that the four
                                                 11
       2.      Art. 14.3 (a)(6) did not authorize Mr. Scott’s warrantless arrest.

       Assuming, as quoted above, Mr. Scott replied to Officer Brewster’s question:

“Do you have a crack pipe on you” with “Yes, I have a crack pipe on me” that statement

would fall under section (a)(6), since it established probable cause to believe Mr. Scott

had committed a felony. Tex. Code Crim. Proc. Art. 14.3(a)(6). If the statement had

been admissible under Art. 38.22, then the officers would have been authorized to arrest

Mr. Scott on the basis of that statement.

       The statement, however, was inadmissible under Art. 38.22 because Section 3(a)

of that article explicitly excludes its use against Mr. Scott. The pertinent part of the

statute states:

       Sec. 3(a) No oral or sign language statement of an accused made as a result
       of custodial interrogation shall be admissible against the accused in a
       criminal proceeding unless:
              (1) an electronic recording, which may include motion picture,
       video tape, or other visual recording is made of the statement;
              (2) prior to the statement but during the recording the accused is
       given the warning in Subsection (a) of Section 2 above and the accused
       knowingly, intelligently waives any rights set out in the warning.

Tex. Code Crim. Proc. Art. 38.22§3(a).

       In State v. Ortiz, the Amarillo court of appeals considered whether statements

admissible under §3(c), absent the warnings. The court stated:

       The state appears to assume that statements admissible under §3(c) are
       exempt from the requirements of Miranda. That is, an oral statement

categories ‘at least… may constitute custody.’” State v. Ortiz, 382 S.W.3d 367, 376 (Tex.Crim. App.
2012) discussing Dowthitt v.State, 931 S.W.2d 244 (Tex. Crim. App. 1996).

                                                12
      obtained during custodial interrogation, meeting the exception of §3(c)
      would be admissible, even if not preceded by the Miranda warnings. For
      this proposition, the State cites no authority and we can envision none
      since such a rule would engraft an additional, unrecognized exception
      onto Miranda.

State v. Ortiz, 346 S.W.3d 127, 136 (Tex. App.—[Amarillo, Panel D] (2011)(pet. granted).

      It is the state’s burden to show that a defendant was given proper warnings or

will face the suppression of any statements given by the defendant. Miranda, 384 U.S.

at 492-93; Tex. Code Crim. Proc., art. 38.22 § 3.

      In dealing with custodial interrogation, [a court] will not presume that a
      defendant has been effectively apprised of his rights and that his privilege
      against self-incrimination has been adequately safeguarded on a record
      that does not show any warnings have been given or that any effective
      alternative has been employed. Nor can a knowing and intelligent waiver
      of these rights be assumed on a silent record.

Miranda, 384 U.S. at 498-99.

      In summary, Mr. Scott was the subject of a custodial interrogation and the state

made no showing that he was apprised of his constitutional rights under Miranda; the

statement he made in response to the officer’s question should have been should have

been included in the motion to suppress.

C.    Ineffective Assistance of Counsel

      1. Deficient Performance

      The statement, assuming it was made, was what prompted the officers to retrieve

the crack pipe from Mr. Scott’s pocket and gave them probable cause to arrest him. It



                                           13
was when Brewster was about to handcuff him that Rothberg said he saw the pistol (2

R.R. at 46).

       Because the statement came in without an attempt to suppress it or an objection,

the proceeding was reduced to a credibility match between Mr. Scott and the officers

as to whether they searched him without consent or whether Mr. Scott gave them

probable cause to arrest him after telling them he had a crack pipe. The standard of

review on questions of credibility and demeanor gives almost total deference to the trial

court “But when mixed questions of law and fact do not depend on credibility and

demeanor, we review the trial court’s ruling de novo.” Kerwick, 393 S.W.3d at 273.

       Moving to suppress the statement would have raised issues as to the nature of

the stop and the reasonableness and this Court could then review the trial court’s

inferred determinations de novo. Had counsel moved to suppress the statement, the law

would have required its suppression. Miranda at 492-93. Without the statement, there

would have been no cause to search or arrest Mr. Scott. There could have been no

conceivable strategy involved in failing to attempt to suppress the statement.

       2.      Prejudice

       But for counsel’s failure to move to suppress the statement, either the motion to

suppress would have been granted, eliminating the need to proceed to trial, or error

would have been preserved on the issue. Without the statement, neither the crack pipe

crack pipe nor the revolver would have been legally seized and there would have been


                                           14
no arrest, legal or otherwise, to evade. There can be no confidence in the outcome of

the proceeding.

                                       Prayer

       Mr. Scott asks the Court to reverse his conviction and remand for appropriate

action by the trial court.

                                               Respectfully submitted,

                                               ALEXANDER BUNIN
                                               Chief Public Defender
                                               Harris County Texas


                                               /s/Melissa Martin
                                               ______________________________
                                               Melissa Martin
                                               Assistant Public Defender
                                               Harris County Texas
                                               1201 Franklin 13th Floor
                                               Houston Texas 77002
                                               (713) 368-0016
                                               (713) 437-4319 e-fax
                                               TBA No. 24002532



                             CERTIFICATE OF SERVICE

       I certify that I provided a copy of the foregoing brief to the Harris County

District Attorney on the day the brief was accepted.

                                               /s/ Melissa Martin
                                               ______________________________
                                               MELISSA MARTIN
                                               Assistant Public Defender

                                          15
                                  CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.     Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 3,822 words printed in a proportionally spaced typeface.

2.     This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft

Word software.

3.   Upon request, undersigned counsel will provide an electronic version of this brief

and/or a copy of the word printout to the Court.

4.   Undersigned counsel understands that a material misrepresentation in completing

this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),

may result in the Court's striking this brief and imposing sanctions against the person

who signed it.

                                                /s/ Melissa Martin
                                                ______________________________
                                                MELISSA MARTIN




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