                                                                                                ACCEPTED
                                                                                            01-14-00107-CR
                                                                                 FIRST COURT OF APPEALS
                                                                                         HOUSTON, TEXAS
                                                                                      11/13/2015 9:19:53 AM
                                                                                      CHRISTOPHER PRINE
                                                                                                     CLERK

                                No. 01-14-00107-CR

FREDERICK MANUEL                           )         IN THE COURT OF APPEALS
                                                                  FILED IN
                                                                 1st COURT OF APPEALS
                                                                     HOUSTON, TEXAS
V.                                         )            FOR   THE11/13/2015
                                                                  FIRST DISTRICT
                                                                            9:19:53 AM
                                                                 CHRISTOPHER A. PRINE
                                                                          Clerk
STATE OF TEXAS                             )                               OF TEXAS

                 APPELLANT’S MOTION FOR REHEARING

TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW, Frederick Manuel, Appellant, by and through counsel, Ken

Mahaffey, and respectfully moves for rehearing. In support thereof, Appellant would

show the Court the following:

      1. Opinion Issued Affirming Conviction. This Court issued an opinion

affirming the Appellant’s judgment of conviction on November 5, 2015.

      2. Motion Timely. Under Rule 49.1, Tex. R. App. Proc. (2015), a motion for

rehearing is timely if filed within fifteen (15) days of the date the Court of Appeals

issues its opinion. This motion was electronically filed with the Clerk of the Court

on or before that date. The motion is therefore timely filed. Rule 9.2 (b), Tex. R. App.

Proc. (2015).

      3. Overview. This is a search warrant case where the affidavit focused

suspicion on Appellant for commission of a convenience store robbery three months

prior to issuing the warrant. This Court held the affidavit was sufficient because a

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police officer could reasonably conclude that people typically keep clothing in their

homes and therefore the items would be at that particular location even months after

the offense. The Court’s opinion may be found at the following link:

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=f8f740e5-56
b2-44e4-bc7d-ba3391f9ba0d&coa=coa01&DT=Opinion&MediaID=db147244-2e
7b-4f70-a4be-b5256baea72d


                          REASONS FOR REHEARING

Point for Rehearing Number One:

      The Court’s opinion improperly broadens what is considered probable cause
      by holding suspicion a person committed a crime wearing certain clothing
      automatically constitutes probable cause to search that person’s residence.

                       ARGUMENT AND AUTHORITIES

      “Probable cause to believe that a man has committed a crime on the street does

not necessarily give rise to probable cause to search his home.” 2 Wayne R. LaFave,

Search and Seizure § 3.7(d) (3d ed.1996). While the Court reviewed a number of

aspects concerning the warrant, the principal hold is that if investigators can identify

clothing worn by a suspect during an offense, that will support a search warrant for

his residence. This is a sweeping expansion of probable cause determinations. The

Court cites some cases for this proposition, however, none of these cases support this

conclusion.



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      First, the Court states that “. . . common experience tells us that there is a ‘fair

probability’ that clothing worn ‘a lot’ over a period of years will be kept at a person’s

residence,” citing Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App. 2007). Slip

Op. p. 11. However, Rodriguez, supra, does not say this. In that case, the resident

specifically told the officers there were drugs in the residence. Id. at 57. It was this

admission, not the belief that drug dealers keep drugs in their homes, that supported

the warrant.

      The other cases cited for this proposition also relied upon much more than the

fact that a person is presumed to keep clothing in his residence long after the offense.

In Cuevas v. State, 13-11-00111-CR (Tex. App. - Corpus Christi 2012, no pet.),

broken car glass was found near shooting a victim. Id. at 10. Suspicion focused on the

defendant and that same day, the defendant’s car was located at his residence with a

broken window and bullet hole. Id. at 10 - 11. This showed both a close causal and

timely connection between the gun sought and the location to be searched. Id. In

Appellant’s case, the only connection was that appellant may have owned some

clothing and lived at the home.

      In Arrick v. State, 107 S.W.3d 710 (Tex. App. - Austin 2003, pet. ref’d), the

defendant bragged to numerous people about the killing providing details concerning

his transport of the body and describing a particular gun souvenir he had made to

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commemorate the event. Id. at 716. The affidavit established a probability that the

suspect would have gotten blood on his clothing and on the carpet of his home during

the offense. Id. at 717. It was also reasonable to infer the suspect would keep the

souvenir since he obviously expended great effort to create it and displayed it to

others. Id. at 717.

      In the instant case, neither the nature of the shooting nor anything in the

affidavit suggests appellant would have been spattered with blood that would still be

present months later. SX 81. Nor, does the affidavit assert he created or displayed a

distinctive object that he showed to others while admitting the offense. SX 81. The

affiant merely says he knows that murder suspects might have bloody clothing in their

residences, “. . . if it has been discarded there.” SX 81 p. 5. Arrick, supra, is simply

not authority for the proposition that it is common knowledge that murderers

habitually keep clothing of evidentiary value in their homes.

      The major case the Court seems to rely upon is a federal case from the 8th

Circuit. Iverson v. North Dakota, 480 F.2d 414 (8th Cir.), cert. denied, 414 U.S.

1044, 94 S.Ct. 549, 38 L.Ed.2d 335 (1973). In that case, the suspect was interviewed

shortly after the offense. Id. at 417. He admitted knowing the murder victims and

having been in the victims’ apartment forty-eight hours before the bodies were

discovered. Id. at 417. During the interview, investigators saw numerous scratches

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on the suspect’s hands, arms and neck. Id. As a result, probable cause existed for a

search of the defendant’s home for recently bloodstained clothes. Id. at 417 - 418.

      The observation that an officer could draw on “. . . “factual and practical

considerations of everyday life . . ,” Iverson, supra at 418, did not deal with keeping

items such as clothing in one’s residence. Instead, what the Iverson court actually said

was very different from this Court’s application of the quote. Specifically, the Iverson

opinion states as follows:

      “. . . [i]t is reasonable to assume that in a violent crime such as murder there
      would be blood present, and that female victims would fight with the weapons
      available to them-their hands and fingernails. Accordingly, it would be
      reasonable to assume that their assailant would bear scratch marks.”

Iverson, supra at 418. This case simply does not say that suspicion of a crime

committed elsewhere supports a general search warrant for the suspect’s home

because it is a known fact that criminals keep evidence in their homes. It timely and

specifically focused suspicion on the place to be searched because the defendant

would have returned home there soon after the offense with blood on his person.

       The case at bar is decidedly different from Iverson, supra. Here, the affidavit

made no prior connection with the location of the robbery beyond the fact that

Appellant may have driven by ten minutes before the offense. SX 81, p. 6. Nor did

the affidavit contain any allegation that appellant came into contact with any blood



                                         Page 5
or that it would be reasonable to conclude that any bloody clothing would still be

present months later. Beyond the officer’s belief, no information placed any item in

the residence to be searched at the time the warrant issued.

      The Court’s distinction between drugs and firearms on the one hand and

clothing on the other is also misplaced. Slip Op. pp. 11, 12. Essentially, the Court

says drugs and guns are different than clothing because these types of items can be

stored or used in other locations. Id. Like drugs that can be used or sold other

locations, clothing can be worn, stored, laundered, or discarded in an equally likely

number of places. There is also no significant difference between firearms kept by an

individual and their own clothing as guns may be carried to other locations as well.

The Court should reconsider the cases it distinguished based on this perceived

difference in character between the items asserted to be at the location to be searched.


Point for Rehearing Number Two:

      The Court’s reliance on information received within twenty-four hours before
      the warrant was issued misreads the affidavit.

                       ARGUMENT AND AUTHORITIES

      The Court draws a conclusion that the affiant obtained key information within

twenty-four hours before the warrant was issued. Slip Op. p. 20. Specifically, the

Court states as follows: “The officer obtained a search warrant within 24-hours of

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receiving the last piece of evidence (that Manuel drove a car identical to the one in

the security video) linking Manuel to the shooting and verifying that Manuel still

lived at that residence.” Slip Op. p. 20. This misreads the affidavit.

      The affidavit shows that investigators knew about the car since February 1,

2011. See SX 81 p. 3 (suspect “drove an old white ‘cop car’ type of vehicle”).

Investigators also linked that car to appellant by color, make and license plate

number. See SX 81, p. 4)(“a white 1989 Chevy four door, bearing Texas License

Plate 782FWR”). They also confirmed the information about Appellant’s residence.

SX 81 p. 3.

      Indeed, the affiant actually states he viewed the video on January 20, 2011. SX

81, pp. 2 - 3. The only reference to information received in twenty-four hours is the

statement that after interviewing a witness who identified a jacket, and that, “armed

with this information” the officer viewed the video again. SX 81, p. 4. Significantly,

the witness did not mention a car or any sort of vehicle. SX 81, p. 4. As a result, this

was not new information; investigators had this for months.

      Moreover, the Court does not explain why showing appellant may have driven

by the store showed that bloody clothing would be found in his residence three

months later. It only focuses suspicion on Appellant personally. Even if the

information concerning the car was discovered within twenty-four hours of the

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warrant, it still does not make it any more probable that the items were at the place

to be searched. Basically, driving a car does not equal storing of clothing at one’s

residence. This Court should grant rehearing to address these arguments.



                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully moves for

rehearing in this cause.


                                                    Respectfully Submitted,



                                                    Ken Mahaffey
                                                    Counsel for Appellant
                                                    P.O. Box 684585
                                                    Austin, Texas 78768
                                                    (512) 444-6557
                                                    St. Bar. No. 12830050
                                                    Ken Mahaffey@yahoo.com




                                       Page 8
    CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE

      The above signature certifies that on November 13, 2015, this document was

sent by electronic service to the Travis County D.A.’s Office, P.O. Box 1748, Austin

TX 78767-1748 and to Frederick Manuel, TDCJ No. 01901942, Polunsky Unit, 3872

FM 350 South, Livingston, TX 77351. The above signature also certifies that the

above motion contains 1762 words in compliance Rule 9.4(i)(2)(D) and 9.4(i)(3),

Tex. R. App. Proc. (West 2015) (not to exceed 4,500 words ).




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