                                                                                      ACCEPTED
                                                                                  12-15-00131-CR
                                                                     TWELFTH COURT OF APPEALS
                                                                                   TYLER, TEXAS
                                                                             7/30/2015 1:53:38 PM
                                                                                    CATHY LUSK
                                                                                           CLERK

                              CASE NUMBERS:
                              12-15-00131-CR
______________________________________________________________________________
                                                                 FILED IN
                                                           12th COURT OF APPEALS
                                                                TYLER, TEXAS
                                   IN THE
                                                           7/30/2015 1:53:38 PM
                                                                CATHY S. LUSK
                          COURT OF APPEALS FOR THE                  Clerk

                TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
______________________________________________________________________________

                ERIC CLARK ALLEN V. THE STATE OF TEXAS
______________________________________________________________________________

                        From the District Court

                        159th Judicial District

                        Angelina County, Texas

                    Trial Case Numbers: 2014-0063

          The Honorable Paul E. White, Judge Presiding

______________________________________________________________________________

                BRIEF OF THE APPELLANT, ERIC CLARK ALLEN.
______________________________________________________________________________


                                                Respectfully submitted,



                                                JERRY N. WHITEKER
                                                State Bar No. 21361500
                                                P.O. Box 1443
                                                Lufkin, Texas 75902-1443
                                                Tel: (936) 632-5551
                                                Fax: (936) 632-9550

                                    COURT APPOINTED ATTORNEY FOR THE APPELLANT


NO ORAL ARGUMENT REQUESTED
                                   PREAMBLE


TO THE HONORABLE COURT:

      Appellant before the Court of Appeals, Eric Clark Allen, Appellant,

respectfully submits this, his Brief, in appealing the denial of his Motion

to Suppress Evidence in cause number 2014-0063 from the 159th District Court,

Angelina County, Texas, the Honorable Paul White, Presiding, which resulted

in a conviction for the felony offenses of Counts I through XIII possession

or promotion of child pornography (CR 55; 78).

      In this Brief, Eric Clark Allen shall be referred to as “Appellant” and

THE STATE OF TEXAS, Appellee herein, shall be referred to as “State.”   The

Clerk’s Record will be cited by page as “CR____” and the Reporter’s Record

will be cited by volume and page as “RR __/__”.




                                       ii
                         IDENTITY OF PARTIES AND COUNSEL



      Pursuant to Tex. R. App. Pro. 38.1(a), Eric Clark Allen hereby submits

a list of parties and counsel interested in this case:

Appellant and Counsel:

Eric Clark Allen
c/o Jerry N. Whiteker
State Bar No. 21361500
406 N. First
P.O. Box 1443
Lufkin, Texas 75902
Telephone: (936) 632-5551
Fax: (935) 632-9550


State and its Counsel:

State of Texas
c/o April Ayers-Perez
Assistant District Attorney
Angelina County
State Bar No. 24090975
Angelina County Courthouse
P.O. Box 908
Lufkin, Texas 75902
Telephone: (936) 632-5090
Fax: (936) 637-2818




                                       iii
                                  TABLE OF CONTENTS



PREAMBLE .....................................................................ii

IDENTITY OF PARTIES AND COUNSEL .................................................iii

TABLE OF CONTENTS..............................................................iv

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

       CASES .................................................................. V

       STATUTES ................................................................ V

       TEXAS RULES OF APPELLATE PROCEDURE ........................................... V

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

STATEMENT REGARDING ORAL ARGUMENT .................................................1

ISSUES PRESENTED ...............................................................1

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

SUMMARY OF THE ARGUMENT ..........................................................2

ARGUMENT ......................................................................3

PRAYER........................................................................7

CERTIFICATE OF SERVICE...........................................................8

CERTIFICATE OF COMPLIANCE ........................................................9

APPENDIX




                                          iv
                             INDEX OF AUTHORITIES



CASES

Arguellez v. State, Nos. PD-0997-12,PD-0998-12 (Tex.Crim.App.Sept. 18,2013)..5

Johnson v. United States, 255 U.S. 313 (1921)................................6

Kentucky v. King, 563 US ___,___.............................................3

Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim. App.2004)....................3

Riley v. California,
      573 U.S. ____, 134 S. Ct. 2473,189 L. Ed.2d 430 (2014).................3

Schneckloth v. Bustamante, 412 U.S. 218(1973)................................5

Swain v. State, 181 S.W. 3d. 359, 365 (Tex. Crim. App. 2005).................3




STATUTES

TEX. CONST. Art. 1, Sec.9....................................................3

U.S. CONST., Amend. 4........................................................3




                                      v
                                      STATEMENT OF THE CASE

         Appellant was charged by Indictment with thirteen counts of the third

degree    offense      possession     or    promotion    of    child   pornography     (CR    00019).

Appellant challenged the search and seizure of his cellular telephone during

a hearing on his motion to suppress evidence. Following a hearing on the

motion to suppress, and the trial court’s review of evidence, the trial court

denied the motion to suppress.                   Appellant pled no contest to the offenses

charged, and the trial court sentenced Appellant to seven years confinement

in the Institutional Division of the Texas Department of Criminal Justice.

The trial court, however, granted its permission for Appellant to appeal its

ruling    denying      the   motion   to     suppress    evidence      and   granted   (CR    00007),

Appellant      a    personal     recognizance           appeal    bond       (CR   00080,     00081).

Appellant filed his notice of appeal to the Twelfth Court of Appeal on May

13, 2015 (CR 00082,00083).



                              STATEMENT REGARDING ORAL ARGUMENT

         Appellant does not believe oral argument is called for in this case.



                                           ISSUES PRESENTED

                                 APPELLANT’S POINT OF ERROR

         The   trial    court   erred       in    denying     Appellant’s     Motion   to    Suppress

Evidence because the search of Appellant’s cellular telephone was conducted

without a warrant, without probable cause and in violation of Appellants

right to privacy.



                                        STATEMENT OF FACTS

         On October 23, 2014, the Honorable Paul E. White conducted a hearing on

Appellant’s Motion to Suppress and denied said motion on October 24, 2015 (CR
                                      1
00055, RR 2/71). On January 26, 2015, the Honorable Paul E. White began

conducting a hearing for adjudication sentencing wherein the Appellant pled

no contest to the offense of a third degree felony (RR 3, 4).                                    However the

adjudication proceedings were recessed and continued on May 1, 2015, at which

time the Appellant was sentenced to seven (7) years confinement to Texas

Department of Criminal Justice, Institutional Division (CR 00078).                                      During

the Sentencing Hearing for Appellant, the Honorable Paul E. White referred to

the PSI report yet did not enter it into evidence (CR 00065, RR 3/4). On

Wednesday, May 13, 2015, Appellant filed his Notice to Appeal (CR 00082.

                                     SUMMARY OF THE ARGUMENT

        On   December    3,      2013,    Appellant       was     confronted     by    a   two      uniformed

Huntington ISD officers after at a Huntington High School basketball game.

Appellant was watched by Officer Mike Jenkins throughout the basketball game

and upon the conclusion of said game, both Officer Mike Jenkins and Officer

Reynolds.        After   briefly         speaking    with        Appellant,    Officer      Mike       Jenkins

testified at the hearing on the motion to suppress that he asked Appellant to

speak to him (Officer Jenkins) outside in an area out of sight of the public

and further asked the Appellant to sit in his patrol car (RR 2/17), at which

time he obtained Appellant’s cellular telephone by telling the Appellant that

if he did not give the Officer his telephone he would be taken to jail (RR

2/8).     No warrant was produced for the telephone at the time that Officer

Jenkins      conducted     the     initial     search       which     he      testified        he    had     the

Appellant’s telephone 5 minutes and was 15 to 20 pictures into the camera

roll    before   finding      what   purported       to     be    pornographic        images     (RR    2/20).

Appellant     asserts    that      the    trial     court    erred     in     denying      his      motion    to

suppress the evidence obtained and the evidence seized after the search of

his cellular telephone because the search was conducted without a warrant,

without probable cause, and in violation of his constitutional rights.
                                       2
                                        ARGUMENT

       The   trial    court   erred    in   denying   Appellant’s   Motion    to   Suppress

Evidence because the search of Appellant’s cellular telephone was conducted

without voluntary consent, without warrant, without probable cause and in

violation of Appellants right to privacy.

       The Fourth Amendment to the United States Constitution reads:

      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, Its Texas counterpart, Article I, Section 9 of the

Texas Constitution reads:

      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.

       The   Fourth    Amendment      protects     against   unreasonable    searches   and

seizures by government officials.

       The standard of review in this case is one of abuse of discretion.

Swain v. State, 181 S.W. 3d. 359, 365 (Tex.Crim.App.2005).                   Further, the

Court must consider the totality of the circumstances in making a decision.

Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim. App.2004).

       A warrantless search is reasonable only if it falls within a specific

exception to the Fourth Amendment’s warrant requirement.              Kentucky v. King,

563 US ___,___.       Officers may examine the phone’s physical aspects to ensure

that it will not be used as a weapon, but data on the phone can endanger no

one.   Further, in Riley v. California, 573 U.S. ____, 134 S. Ct. 2473,189 L.

Ed.2d 430 (2014) the Court ruled that the information on a cell phone is not

immune from search but that a warrant is generally required before such a
                                    3
search, thus distinguishing a cell phone from automobiles and residences as

it may contain sensitive and most personal data in the greatest detail.

         While it is not disputed that the officer’s search of the contents of

Appellant’s       cell   phone     constituted        a    search,     the    question   then   turns     on

whether or not there existed probable cause to believe a crime had occurred

that justified said search, and whether or not consent was given by Appellant

for the search of the cell phone.

         Probable Cause:          The officer testified at the hearing on the motion to

suppress, that the night prior to the date of contact with Appellant, he was

approached by a coach from another district within the county and advised

Appellant had been given a criminal trespass not to come to their campus for

allegedly     taking      inappropriate        pictures          of   their    cheerleaders     and     just

students in general (RR 2/14).                 Butressed with that hearsay information, the

Officer testified that the night in question, when he saw Appellant arrive at

the basketball game, Appellant entered the gymnasium and sat in the student

section but the Appellant never stood up, and never paid attention to the

basketball game but rather remained seated and had his phone in his hand the

entire    time,    although       he   could    not       tell   if   the    Appellant   had    taken   any

photographs       (RR    2/16).        Upon   the     conclusion       of    the   basketball   game    the

Appellant was asked by the officer to step out back and sit in his patrol car

to talk.     The officer testified that he basically detained the Appellant and

kept him there to investigate the crimes based on information he got from

other districts (RR 2/18), although later the Officer testified that he did

not witness Appellant commit a crime the night in question (RR 2/26) and that

he felt the Appellant had been taking inappropriate photographs. Again the

officer contradicted himself in that previously he testified that he could

not tell if the Appellant had taken any photographs (RR 2/16).                                   Further,

Officer Jones also testified at the sentencing hearing on January 26, 2015
                                    4
that while he did testify at the hearing on the Motion to Suppress, his

testimony varied essentially from on hearing to his testimony at the second

(RR 3/9).

         It    is    important      to   note     that     simply       being     a   public     place    taking

pictures or being engaged in your cell phone and not involved in the sporting

event at hand, does not in any way suggest that the Appellant was, had been,

or soon would be, engaged in criminal activity. Arguellez v. State, Nos. PD-

0997-12,PD-0998-12 (Tex. Crim. App. Sept. 18, 2013).

         Voluntariness of Consent: The officer further testified that once the

Appellant       voluntarily        handed   him      the   cell        phone,    something       the   Appellant

disputes,       he    had    the    telephone        about    five       minutes      before     finding      what

purported to be a pornographic image of a child ten to fifteen years of age,

completely naked and her legs spread to where you could see her vagina. (RR

2/20).        No images or photographs of local students were found within the cell

phone contents.             It was at that point that Officer Jenkins terminated the

encounter       and   seized       the   telephone       so   he       could    obtain   a     warrant    before

proceeding any further.

         The    decision      of     voluntariness         must        be     made    from   a    totality      of

circumstances in which factors to be considered are the characteristics of

the accused and the details of the police confrontation, including his youth,

lack of education, low intelligence, lack of any advice given to him of his

constitutional rights, the length of detention if any, the repeated efforts

by police to secure that consent, the prolonged nature of that effort, any

physical punishment or deprivation and others. Schneckloth v. Bustamante, 412

U.S. 218(1973).

         Further,      consent      granted     in    submission         to     authority    rather      than   an

understanding         of    intentional         waiver     of      a    constitutional         right     is     not

voluntary consent. Johnson v. United States, 255 U.S. 313 (1921)
                                       5
       Appellant testified that officers told him if he did not give them his

cell   phone,     they    would    take   him      to    jail       (RR    2/8)     and    when    questioned

specifically if he turned over the telephone to the officer voluntarily,

Appellant testified he did not (RR 2/10).                  His consent to search his cellular

telephone   was    done    under    the     submission         to    the     authorities         who   had   him

sitting in squad car in the back of the school with no other witnesses.

Later, Investigator Jones testified that consent on December 3, 2013 would be

a problem as there was no written consent and no warrant for the search of

the telephone (RR 2/63).           Investigator Jones also testified that on December

4, 2013, he met Appellant with a recording device to obtain consent to search

his residence after a judge denied a warrant stating there was no positive

link between the residence and the cell phone (RR 2/64).                                  On the recording

the Investigator goes as far as to question the Appellant as to whether or

not he granted consent to search the telephone the previous night. (RR2/65).

However,    the    recording       itself    is     a    futile           attempt    by     authorities       to

memorialize any type of consent that would have been necessary in order to

make the cell phone search on December 3, 2013 and its findings legal after

the fact.

       At the sentencing hearing, Jean Stanley, a court appointed licensed

professional      counselor,       and      also    a     licensed           forensic       mental       health

specialist, testified that she conducted a forensic evaluation of Appellant

and made a report of her findings and conclusions but although offered as

evidence, without objection, and referenced during the sentencing, the report

was not admitted (RR 3/3).

       Further,    Dr.    Stanley    testified          that    Appellant         was     born    with   Pierre

Robins Syndrome, underwent several surgeries and as a result was subjected to

bullying and abuse as a child making him socially inept (RR 3/31,32).                                        Dr.

Stanley also testified that Appellant had an IQ of 75 which is below average
                                      6
for someone his age (RR 3/18). Although Appellant attended college, his GPA

was 1.9 and he also enlisted in the US Army but did not make it because he

missed his mother and home, indicating he struggled (RR 3/24).                            In reality

the peculiar activity that Officer Jenkins testified he observed in Appellant

in   all    honesty   may   have    simply      been   a   circumstance      of     the   Appellant’s

appearance due to his birth defect and his social awkwardness.

       By    removing   Appellant     away      from   public   view   and    witnesses,      and    by

threatening     Appellant    to    take   him    to    jail   should   he    deny    access   to    the

telephone, the consent to search his telephone was by no means freely and

voluntarily given.

       The trial court erred in denying Appellants Motion to Suppress evidence

in that the burden of proof as to probable cause for a warrantless search lay

with the State to show he had reason to believe a crime was being committed

or about to be committed by the actions of Appellant and in the absence of

probable cause, then consent must be clearly obtained before infringing upon

Appellant’s expectation to privacy.               The State failed to show that there was

probable cause and failed to show that consent was freely and voluntarily

given in view of the totality of the circumstances.

                                                PRAYER

       WHEREFORE, PREMISES CONSIDERED, should the Court of Appeals to sustain

the point of error herein above detailed and reverse the judgment of the

trial court and either render a judgment for Appellant or remand the case for

a further proceedings in this case.

                                                         Respectfully submitted,




                                                  7
                                          JERRY N. WHITEKER

                                          Court Appointed Attorney
                                          for Appellant
                                          State Bar No.21361500
                                          406 N. First Street
                                          P.O. Box 1443
                                          Lufkin, Texas 75902-1443
                                          Tel: (936) 632-5551
                                          Fax: (936) 632-9550



                                          By:_/s/Jerry N. Whiteker___________
                                             Jerry N. Whiteker


                            CERTIFICATE OF SERVICE

      This is to certify that on July 30, 2015, a true and correct copy of
the above and foregoing Brief for Appellant was served by electronic delivery
on Assistant District Attorney of Angelina County, Texas, April Ayers-Perez,
P.O. Box 908 Lufkin, Texas 75902, (936) 632-5090 and by certified mail,
return receipt requested, to Mr. Eric Clark Allen, TDCJ Number 1998968, Byrd
Unit, 21 FM 247, Huntsville, Texas 77320.

      SIGNED this 30 day of July, 2015.


                                          _/s/Jerry N. Whiteker___________
                                          JERRY N. WHITEKER
                                          Court Appointed Attorney
                                          for Appellant
                                          State Bar No.21361500
                                          406 N. First Street
                                          P.O. Box 1443
                                          Lufkin, Texas 75902-1443
                                          Tel: (936) 632-5551
                                          Fax: (936) 632-9550




                                      8
                          CERTIFICATE OF COMPLIANCE

          I, Jerry N. Whiteker, attorney for Appellant, Eric Clark Allen,

certify that this document was generated by a computer using Microsoft Word

2007 which indicates that the word count of this document is 2,105 per Tex.

R. App. P. 9.4(i)(3).

                                          __/s/Jerry N. Whiteker _________
                                          JERRY N. WHITEKER
                                          Court Appointed Attorney
                                          for Appellant
                                          State Bar No.21361500
                                          406 N. First Street
                                          P.O. Box 1443
                                          Lufkin, Texas 75902-1443
                                          Tel: (936) 632-5551
                                          Fax: (936) 632-9550
                               CASE NUMBER:
                              12-15-00131-CR
______________________________________________________________________________

                                   IN THE

                          COURT OF APPEALS FOR THE

                TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
______________________________________________________________________________

                ERIC CLARK ALLEN V. THE STATE OF TEXAS
______________________________________________________________________________

                        From the District Court

                        159th Judicial District

                        Angelina County, Texas

                    Trial Case Number: 2014-0063

            The Honorable Paul White, Judge Presiding

______________________________________________________________________________

                            APPELLANT’S APPENDIX
______________________________________________________________________________
                           APPENDIX TABLE OF CONTENTS



DOCUMENT                                                                      TAB

TEXT OF CODES CITED. ............................................................1




                                       A-1
                                  CODES CITED



TEX. CONST. Art. 1, Sec.9
SEARCHES AND SEIZURES. The people
shall be secure in their persons,
houses, papers and possessions,
from all unreasonable seizures or
searches, 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.




U.S. Constitution - Amendment 4

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
Warrants 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.




                                      A-2
