                                                                                       ACCEPTED
                                                                                   12-15-00043-CR
                                                                      TWELFTH COURT OF APPEALS
                                                                                    TYLER, TEXAS
                                                                              7/15/2015 5:23:59 PM
                                                                                     CATHY LUSK
                                                                                            CLERK

                          NO. 12-15-00043-CR

                                                             RECEIVED IN
                                                       12th COURT OF APPEALS
                     IN THE COURT OF APPEALS                TYLER, TEXAS
                                                       7/15/2015 5:23:59 PM
         FOR THE TWELTH SUPREME JUDICIAL            DISTRICTCATHY S. LUSK
                                                                Clerk

                          AT TYLER, TEXAS


                     CAUSE NUMBER 2014-0129

                   IN THE 159TH DISTRICT COURT                       7/15/2015
                                                                           7/15/2015




                   IN ANGELINA COUNTY, TEXAS


MIKO PARKS,                                           APPELLANT

vs.

THE STATE OF TEXAS                                     APPELLEE


                        APPELLANT’S BRIEF


                          T. RYAN DEATON
                           TBC # 24007095

                             103 E. Denman
                          Lufkin, Texas 75901
                             (936) 637-7778
                         Attorneys for Appellant



       Appellant respectfully requests oral argument in this case.
                            NO. 12-15-00043-CR


                       IN THE COURT OF APPEALS

          FOR THE TWELTH SUPREME JUDICIAL DISTRICT

                            AT TYLER, TEXAS


                       CAUSE NUMBER 2014-0129

                     IN THE 159TH DISTRICT COURT

                    IN ANGELINA COUNTY, TEXAS


MIKO PARKS,                                              APPELLANT

vs.

THE STATE OF TEXAS                                              APPELLEE


                           APPELLANT’S BRIEF


TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW Appellant, Miko Parks, Appellant in the above styled

and numbered cause, by and through his attorneys of record, and respectfully

submits this, his Brief, pursuant to the rules of Appellate Procedure.




                                       i
                CERTIFICATE OF INTERESTED PARTIES

      The following is a list of the parties to this action and their counsel

and is provided to assist this Court with possible disqualifications or recusal:



HONORABLE Paul White, presided at trial

T. Ryan Deaton, represented Appellant at trial

Katrina Carswell, represented the State at trial

T. Ryan Deaton, represents Appellant on Appeal

April Ayers-Perez, Angelina County District Attorney’s Office, represents
the state on appeal

Address for Appellate counsel is 103 E. Denman, Lufkin, Texas 75901

Mailing address for State counsel is P.O. Box 908, Lufkin, Texas 75902-
0908




                                       ii
                                    TABLE OF CONTENTS



CERTIFICATE OF INTERESTED PARTIES .............................................. ii

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

INDEX OF AUTHORITIES ......................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT .................................. vii

STATEMENT OF PROCEDURAL HISTORY ........................................ viii

ISSUES PRESENTED .................................................................................. ix

         I. Was it error by the trial court to deny appellant’s
         motion to suppress evidence because the initial entry
         into appellant’s residence was done without consent
         or under exigent circumstances?

STATEMENT OF FACTS .............................................................................x

SUMMARY OF THE ARGUMENT .......................................................... xiii

GROUND FOR REVIEW NO. ONE ..............................................................1

PRAYER ....................................................................................................... 11

CERTIFICATE OF SERVICE ..................................................................... 12




                                                       iii
                               INDEX OF AUTHORITIES

I. CASE AUTHORITIES

Texas Court of Criminal Appeals

Brick v. State, 738, S.W.2d 676, 680-81 (Tex. Crim. App. 1987) ............... 10

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) .................2

Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) ..... 1, 5, 6, 7

Juarez v. State, 758 S.W. 2d 772, 775 (Tex. Crim. App. 1988) ......................3

Leal v. State, 773 S.W.2d 296,297 (Tex. Crim. App. 1989) ...........................9

Maxwell v. State, 73 S.W.3d 278 (Tex. Crim. App. 2002)......................... 2, 4

Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985) .......................3

McNairy v. State, 835 S.W. 2d 101, 106
    (Tex. Crim. App. 1991) .........................................................................2

Reasor v. State, 12 S.W.3d 813, 815 (Tex. Crim. App. 2000) ........................2

State v. Ross, 32 S.W. 3d 853,855 (Tex. Crim. App. 2000) ............................2

Turrubiate v. State, 399 S.W.3d 147
     (Tex. Crim. App. 2013) ....................................................... 1, 4, 6, 7, 9

Villarreal v. State, 935 S.W.2d 134, 138
       (Tex. Crim. App. 1996) .........................................................................2


Texas Court of Appeals

Corea v. State, 52 S.W.3d 311
(Tex. App. — Houston [1st Dist.] 2001, pet. ref’d) ........................................3



                                                  iv
Pace v. State, 318 S.W.3d 526, 533
      (Tex. App. – Beaumont 2010, no pet.) ............................................ 7, 9

Rhodes v. State, 913 S.W.2d 242, 249
     (Tex. App. – Fort Worth 1995), aff’d, 945 S.W.2d 115
     (Tex. Crim. App. 1997) .........................................................................7

State v. Bagby, 119 S.W.3e 446, 450
(Tex. App. – Tyler 2003, no pet) .......................................................... 2, 9, 11


United States Court of Appeals

United States v. Jones, 239 F.3d 716, 721 (5th circ. 2001) ....................... 7, 8

United States v. Richard, 994 F.2d 244 (5th circ. 1993) .................................7

United States v. Vega, 221 F.3d 789, 798(5th Circ. 2000) ..............................7

United States v. Gomez-Moreno, 479 F.3d 350, 355
      (5th Circ. 207) ................................................................................... 7,8

United States v. Jones, 239 F,3d 716, 720 (5th Circ. 2001) ...........................7


United States Supreme Court

Bumper v. North Carolina, 391 U.S. 543, 548 (1968) ....................................3

Ohio v. Robinette, 519 U.S. 33, 40 (1996) ......................................................2

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) ..................................2


II. RULES & STATUTES

Texas Rules & Statutes


U.S. CONST., Amend. 4 ....................................................................................1

                                                     v
TEX. CONST., Art. I, § 9 ............................................................................... 1,2

Tex. R. App. P. 26.21 ...................................................................................... i




                                                     vi
STATEMENT REGARDING ORAL ARGUMENT


   Appellant respectfully requests oral argument in this case.




                                  vii
            STATEMENT OF PROCEDURAL HISTORY

      On March 6, 2014, Miko Parks was charged by indictment with one

count of Possession of Marijuana and one count of Possession of Substance

in Penalty Group 1. CR 12. The defendant filed a Motion to Suppress on

April 21, 2014. CR 17. A hearing on Motion to Suppress was held on April

29, 2014, and continuing on May 27, 2014. On June 6, 2014, the court

signed an order denying the Motion to Suppress. CR 36. On December 2,

2014, the defendant pled guilty to both counts. CR 42. On January 30, 2015,

the Honorable Paul White sentenced the defendant to one hundred nineteen

(119) months confinement in the Institutional Division, TDCJ on count one

and ten (10) years deferred adjudication on count two. CR 47. On February

2, 2015, Parks timely filed his written Notice of Appeal as required by Tex.

R. App. P. 26.21. CR 52. This brief is due on July 15, 2015, after two duly

granted extension.




                                    viii
                  ISSUE PRESENTED

                      ISSUE ONE

  IT WAS ERROR BY THE TRIAL COURT TO DENY APPELLANT’S
MOTION TO SUPPRESS EVIDENCE BECAUSE THE INITIAL ENTRY
INTO APPELLANT’S RESIDENCE WAS DONE WITHOUT CONSENT
 OR UNDER EXIGENT CIRCUMSTANCES AND ANY SUBSEQUENT
      CONSENT WAS TAINTED BY THE UNLAWFUL ENTRY.




                         ix
                         STATEMENT OF FACTS

      Prior to July 31, 2014, members of the Texas Department of Public

Safety received information concerning the trafficking of marijuana from

3507 N. John Redditt Drive, Apartment 52, Lufkin, Texas. 2 RR 10.

      The agents decided to make contact with the resident of the apartment

to discuss that information, a procedure known as a “knock and talk”. 2 RR

15. The agents did not have a search or arrest warrant. 2 RR 17.

      At approximately 11:00 a.m. on the morning of July 31, 2014, Agents

Shroeder, Holland, and Cortines arrived at the High Point Apartments, 3507

N. John Redditt Drive, Apartment 52. Officer Shroeder, who was in plain

clothes, walked up a flight of stairs and knocked on the door. 2 RR 14. The

other agents were wearing police-type uniforms and raid gear with exposed

badges and waited downstairs. 2 RR 15.

      The agents had a preplanned signal that when the door was opened,

the police officers who were in police-type uniforms waiting at the bottom

of the stairs were to come up the stairs. 2 RR 63. The defendant, who is

6’2” and 300 pounds, opened the door twelve to eighteen inches. 3 RR 8.

The officer could not have seen anything within the apartment. 3 RR 8. The

officer then stated I smell marijuana, so you need to get back, and all three

of the officers entered the apartment. 3 RR 9.
                                       x
      At the hearing on the Motion to Suppress, Agent Schroeder testified

that there was no other basis for the agents to enter the apartment other than

their belief that the defendant gave valid consent to enter the apartment. 2

RR 92. Agent Shroeder also states that the agents entered the residence by

consent but could not recall the conversation that led him to believe that the

defendant consented for the agents to enter the apartment. 2 RR 90.

Although the defendant had the right to consent because he resided there

three or four nights out of the week and kept his belongings in the apartment

( 3 RR 6), the defendant states that the agents never asked for permission to

come into the apartment. 3 RR 10.

      Two days after the arrests Agent Shroeder completed an affidavit in

which he indicated that he “smelled marijuana” and “observed a Smith &

Wesson .40 Caliber pistol positioned at the arm of the couch in the living

room within an arm’s reach of the female who was identified as Magin Cne

Watts” and also that “investigators entered the residence and secured the

firearm on the couch.” Nothing in Agent Shroeder’s affidavit mentioned

that the agents entered the house by consent. 2 RR 67-68.

      The agents later obtained search warrants regarding some telephones

taken from the residence. An affidavit was made for that search warrant as




                                      xi
well. The agents never mentioned anything in that affidavit about entering

the house by consent. 2 RR 88.




                                     xii
                    SUMMARY OF THE ARGUMENT

      In examining all of the evidence submitted by the state and all of the

evidence offered by the defendant at the hearing on Motion to Suppress, the

state did not prove that the initial entry into Appellant’s residence was done

with consent.




                                      xiii
                                    ISSUE NO. 1

IT WAS ERROR BY THE TRIAL COURT TO DENY APPELLANT’S MOTION
     TO SUPPRESS EVIDENCE BECAUSE THE INITIAL ENTRY INTO
 APPELLANT’S RESIDENCE WAS DONE WITHOUT CONSENT OR UNDER
  EXIGENT CIRCUMSTANCES AND ANY SUBSEQUENT CONSENT WAS
              TAINTED BY THE UNLAWFUL ENTRY.

A. Consent to Enter the Residence

      The Fourth Amendment of the United States Constitution provides:

      The right of the people to be secure in their persons, houses, papers
      and effects, against unreasonable searches and seizures, shall not be
      violated, and no Warrant shall issue, but upon probable cause,
      supported by Oath or affirmation, and particularly describing the place
      to be searched, and the persons or things to be seized.

U.S. CONST., Amend. 4. The Texas Constitution equivalent, Article I, Section 9,

provides:

      The people shall be secure in their persons, houses, papers and
      possessions, from all unreasonable seizures, and no warrant to search
      any place, or to seize any person or thing, shall issue without
      describing them as near as may be, nor without probable cause,
      supported by oath or affirmation.

TEX. CONST., Art. I, § 9. “A warrantless entry into a residence is presumptively

unreasonable.” Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013)

(citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007)). The two

available avenues to justify a warrantless search are, first, if valid consent to search

has been obtained and, second, if probable cause is present at the time of the search

and exigent circumstances make obtaining a warrant impracticable. State v.


                                           1
Bagby, 119 S.W.3d 446, 450 (Tex. App.—Tyler 2003, no pet.) (citing McNairy v.

State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991); Reasor v. State, 12 S.W.3d

813, 815 (Tex. Crim. App. 2000)). A trial court’s ruling on a motion to suppress is

reviewed for abuse of discretion through application of a bifurcated standard of

review. Id. at 449 (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.

App. 1996); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)).

Almost total deference is given to the trial court’s determination of historical facts

while the trial court’s application of the law to those facts is reviewed de novo. Id.

(citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)). When

no findings of fact are filed by the trial court, the evidence is reviewed in a light

most favorable to the ruling with the assumption the trial court made implicit

findings of fact. Id. (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000)). These implied findings of fact must be supported by the record. Id.

      “Consent to search is one of the well-established exceptions to the

constitutional requirements of both probable cause and a warrant.” Maxwell v.

State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973)). Validity of consent is a fact question

determined by all the circumstances. Id. (citing Ohio v. Robinette, 519 U.S. 33, 40

(1996)). The state must prove the validity of consent to search by a preponderance

of the evidence under the federal constitution and by clear and convincing


                                           2
evidence under the Texas Constitution. Id. The State must show, by clear and

convincing evidence, that the consent was given freely and voluntarily; positively

and unequivocally; and not under duress or coercion. Corea v. State, 52 S.W.3d

311, 316 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (citing Bumper v. North

Carolina, 391 U.S. 543,548 (1968); Juarez v. State, 758 S.W.2d 772, 775 (Tex.

Crim. App. 1988)). Acquiescence to a claim of lawful authority cannot discharge

this burden. Id. Consent to search cannot be lightly inferred. Meeks v. State, 692

S.W.2d 504, 509 (Tex. Crim. App. 1985); accord Corea, 52 S.W.3d at 316.

      Mr. Parks testified that he lived at the apartment located at 3507 North John

Redditt, Apartment 52, Lufkin, Texas, three or four nights out of the week. He

further testified that he kept his clothing and belongings in the apartment. RR Vol

3 at 6. Although Mr. Parks’ testimony establishes his ability to give consent for

the agents to enter the apartment, nowhere in the record before the court can clear

and convincing evidence be found that indicates Mr. Parks freely, voluntarily,

positively, and unequivocally gave consent for Agents Shroeder, Cortinez, and

Holland to enter the apartment without a warrant. The only evidence provided by

the State was Agent Shroeder’s testimony regarding “a discussion” of which he

can’t recall any words or phrases used, R.R. Vol 2 at 27, only that they were

“allowed to come in.” Id. at 29. Nowhere during the his testimony does Agent

Shroeder provide any words or phrases that Mr. Parks used to freely, voluntarily,


                                          3
positively, or unequivocally give consent to enter the apartment, but instead

repeatedly admits he cannot give the exact words and that he never summarized

any of the consents or conversations in any affidavits. Id. at 27; 29; 70–71; 88–90.

Further, none of Agent Shroeder’s testimony regarding the consent was able to be

corroborated by any other individual. See id. at 119–20 (Agent Holland admitting

to not hearing the initial conversation at the door); R.R. Vol. 3 at 10–11; 13 (Mr.

Parks testifying that Agent Shroeder never asked permission to enter and was

never granted permission to enter); R.R. Vol. 3 at 37–38 (Ms. Watts testifying that

Mr. Parks never gave consent and she did not hear anyone ask permission to enter).

Agent Shroeder does however admit that his sole justification for entering the

residence was the alleged consent he received. R.R. Vol. 2 at 92–93. While Agent

Shroeder’s testimony may provide some scintilla of evidence of consent, it does

not reach the high clear and convincing standard that is required in Texas. See

Maxwell, 73 S.W.3d at 281.

B. Exigent Circumstances

      Lacking consent, the agents must have had probable cause coupled with

exigent circumstances to justify entering Mr. Parks’ residence. See Turrubiate v.

State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013) (“the State has the burden of

showing that probable cause existed at the time the search was made and that

exigent circumstances requiring immediate entry made obtaining a warrant


                                          4
impracticable.”). “Probable cause exists when reasonably trustworthy

circumstances within the knowledge of the police officer on the scene would lead

him to reasonably believe that evidence of a crime will be found.” Id. Once

probable cause exists, exigent circumstances may dictate immediate, warrantless

entry of a residence under three circumstances: (1) when officers are providing aid

to persons reasonably believed to be in need of it; (2) when officers are protecting

other officers from persons reasonably believed to be present, armed, and

dangerous; and (3) when officers are preventing the destruction of evidence or

contraband. Id. (citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.

2007)).

      In the instant case, the existence of probable cause is not in dispute at the

time of the initial “knock” and was likely established just prior to the initial

“knock” based on Agent Shroeder’s detection of the odor of marijuana from

around the door prior to the “knock.” See R.R. Vol 2 at 84–85 (“I believed there

was a possibility of probable cause because I could smell marijuana in the area at

that point, not until the door opened did I realize it was coming from the

apartment.”). The State must still prove exigent circumstances existed at the time

of the initial entry. Only the second and third categories listed above have any

inkling of support in the record, but still fall short of justifying a warrantless entry

into Mr. Parks’ residence.


                                            5
      I. Odor of Marijuana

      The prevention of destruction of evidence or contraband is one of the three

categories of exigent circumstances. Turrubiate, 399 S.W.3d at 151(citing

Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007)). It has been

conclusively established that the odor of marijuana coupled with an officer making

his presence known does not justify the warrantless entry of a residence on the

premise of preventing destruction of evidence. Id. at 149 (“We agree with the

holding by the court of appeals that probable cause to believe that illegal drugs are

in a home coupled with an odor of marijuana from the home and a police officer

making his presence known to the occupants do not justify a warrantless entry.”).

Courts require additional evidence that indicates destruction of evidence was

imminent. Id. at 154.

      Here, Agent Shoeder’s own testimony indicates that he perceived no

indication that Mr. Parks or Ms. Watts intended to destroy any evidence. R.R. Vol.

2 at 93. Further, Agent Shoeder affirmed that he believes his sole justification or

“authority to enter the residence rises or falls upon proof of a valid consent by Mr.

Parks” and not upon any imminent destruction of evidence. Id. at 92–93. Without

any additional evidence indicating destruction of evidence was imminent, the

warrantless entry into the residence was not justified. See Turrubiate, 399 S.W.3d

at 153 (“In other words, the Court required that the record show proof of imminent


                                          6
destruction based on affirmative conduct by those in possession of narcotics in a

particular case.”).

      II. Presence of Firearm

      The protection of other officers from present, armed, and dangerous persons

is a second of the three categories of exigent circumstances. Turrubiate, 399

S.W.3d at 151(citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.

2007)). “The perspective of a reasonable officer on the scene is a consideration in

the analysis of the reasonableness of the governmental intrusion.” Pace v. State,

318 S.W.3d 526, 533 (Tex. App.—Beaumont 2010, no pet.) (citing Rhodes v.

State, 913 S.W.2d 242, 249 (Tex. App.—Fort Worth 1995), aff’d, 945 S.W.2d 115

(Tex. Crim. App. 1997)). Courts have distinguished between situation where

suspects detect law enforcement surveillance—and the exigent circumstances

exception applies—and situations where officers make their presences known—

and the exigent circumstances exception does not apply. United States v. Jones,

239 F.3d 716, 721 (5th Circ. 2001) (referring to United States v. Richard, 994 F.2d

244 (5th Circ. 1993)). The actions or inaction of the government cannot be the

cause of the exigent circumstances. Id. at 720 (citing United States v. Vega, 221

F.3d 789, 798 (5th Circ. 2000)). The “reasonableness of the officers’ investigative

tactics leading up to the warrantless entry” is used to determine whether the

officers created the exigency. United States v. Gomez-Moreno, 479 F.3d 350, 355


                                          7
(5th Circ. 2007) (quoting United States v. Jones, 239 F.3d 716, 720 (5th Circ.

2001)). The “knock and talk” tactic has been considered reasonable where officers

approaching a house are not convinced criminal activity are taking place and have

no reason to believe the occupants are armed. Id.

      In the instant case, Agent Shroeder testified that he knew Mr. Parks was a

licensed concealed handgun carrier and probably had a weapon with him. R.R.

Vol. 2 at 32, 93–94. Agent Shroeder further admits that at the time he carried out

the knock and talk, he believed he had enough information to secure a search

warrant, but instead proceeded with the knock and talk tactic because it was simple

“a faster and easier process.” Id. at 85–87. These two aspects are an affront to the

rational that Courts have used to justify the reasonableness of the “knock and talk”

tactic. See Gomez-Moreno, 479 F.3d at 355. Agent Shroeders own testimony

establishes that he felt probable cause that criminal activity was taking place

existed prior to performing the knock and talk procedure and further that he knew

Mr. Parks was probably armed; both of which indicate that any exigency was

created by government action. Id. The record also supports the conclusion that Mr.

Parks was completely unaware of any police surveillance or suspicion. R.R. Vol 2

at 34 (indicating Mr. Parks and Mrs. Watts acted surprised at the fact officers had

knocked on their door). Agent Shoeder could have chosen to secure a warrant

without ever alerting Mr. Parks or Ms. Watts to police presence but instead chose


                                          8
to announce his presence and create potential exigent circumstances to gain entry

into the residence.

      Even if the Court concludes probable cause did not exist prior to the knock

and talk procedure, the record does not reflect that Agent Shroeder believed the

firearm, which he expected to be found, posed a danger, and he further testified

that it played no part in his decision to enter the residence. R.R. Vol. 2 at 93. From

Agent Shroeder’s perspective as a reasonable officer on the scene, the presence of

the firearm did not pose a danger and did not create an exigency to justify entry

into the residence. See Pace, 318 S.W.3d at 533 (acknowledging that the

perspective of a reasonable officer on the scene is a primary consideration as to the

reasonableness of government action) ; see also Turrubiate, 399 S.W.3d at 151

(representing persons must be present, armed, and dangerous to create and

exigency related to officer safety (emphasis added)). These factors would further

indicate that the firearm present in Mr. Parks residence did not create an exigent

circumstance that would justify a warrantless entry into the apartment.

C. Subsequent Consent to Search not Attenuated from Unlawful Entry

      When consent follows and illegal entry into a residence, the consent must be

analyzed to determine whether the consent was tainted by illegal police conduct.

Bagby, 119 S.W.3d at 452 (citing Leal v. State, 773 S.W.2d 296, 297 (Tex. Crim.




                                          9
App. 1989). There are six factors Courts use to determine if consent is sufficiently

attenuated from the illegal conduct:

      (1) the proximity of the consent to the arrest;

      (2) whether the seizure brought about observation of the particular

      object for which they sought consent to search, or, in other words,

      whether the illegal arrest allowed officers to view the area or

      contraband that the officers later received consent to search;

      (3) whether the illegal seizure was flagrant police misconduct;

      (4) whether the consent was volunteered rather than requested by the

      detaining officers;

      (5) whether the arrestee was made fully aware of the fact that he could

      decline to consent and, thus, prevent an immediate search; and

      (6) whether the police purpose underlying the illegality was to obtain

      the consent.

Id. at 452–53 (citing Brick v. State, 738 S.W.2d 676, 680–81 (Tex. Crim. App.

1987)).

      The majority of the above factors favor a finding that consent was tainted by

the illegal entry. The first factor is in Mr. Parks favor in that Ms. Watts gave

consent shortly after police illegally entered their residence. R.R. Vol 2 at 44. The

second factor again favors Mr. Parks in that the illegal entry into the apartment


                                          10
resulted in officers seeing a quantity of marijuana and arresting both him and Ms.

Watts. Id. at R.R. Vol 2 at 297. The third factor also favors Mr. Parks in that the

agents entered Ms. Watts residence while she was in a state of undress and placed

her in handcuffs, removed her boyfriend, Mr. Parks, from the residence before

seeking her consent to search. R.R. Vol. 3 at 39–42. The illegal actions of the

agents were aimed to cause surprise and fear in Ms. Watts and cause the third

factor to favor Mr. Parks. See Bagby, 119 S.W.3d at 454. The fourth factor is in

favor of Mr. Parks. Mr. Shroeder acknowledged to seeking the consent from Ms.

Watts. R.R. Vol. 2 at 44. The fifth factor favors the State in that Agent Shroeder

testified to informing Ms. Watts that she could refuse consent. R.R. Vol. 2 at 100.

The sixth factor follows the same reasoning as the third factor and favors Mr.

Parks. See Bagby, 119 S.W.3d at 454 (finding factors that support the third factor

also support the sixth factor).

                                      PRAYER


      Wherefore, in accord with the facts, law, and argument offered above,

Appellant Miko Parks asks this Court to reverse his conviction and order a

dismissal of the charges, or, in the alternative, the suppression of all evidence

obtained after entry into the apartment or grant him other such relief as is

appropriate.



                                          11
                                       Respectfully submitted,

                                       DEATON LAW FIRM
                                       103 East Denman
                                       Lufkin, TX 75901
                                       Tel: (936) 637-7778
                                       Fax: (936) 637-7784


                                       By: _____________________________
                                         T. Ryan Deaton
                                         State Bar No. 24007095
                                         Attorney for Miko Parks


                          CERTIFICATE OF SERVICE

      This is to certify that on July 15, 2015, a true and correct copy of the above

and foregoing document was served on the District Attorney's Office, Angelina

County, Texas, by facsimile transmission.



                                       _________________________________
                                       T. Ryan Deaton




                                         12
