                                                                                       ACCEPTED
                                                                                   01-14-00966-CR
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                             5/29/2015 10:21:46 AM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK




                           NO. 01-14-00966-CR
                                                           FILED IN
                                                     1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                         IN THE COURT OF APPEALS 5/29/2015 10:21:46 AM
                     FOR THE FIRST JUDICIAL DISTRICT CHRISTOPHER A. PRINE
                                                             Clerk
                               OF TEXAS AT
                             HOUSTON, TEXAS


                          ARKANDI MINNASSIAN

                                      VS.

                           THE STATE OF TEXAS


                       Appealed from the District Court
                          of Harris County, Texas
                          338th Judicial District
                            Cause No. 1300894


                           APPELLANT'S BRIEF




Appellant Requests
Oral Argument
                                   DOUGLAS M. DURHAM
                                   State Bar Number: 06278450
                                   2800 Post Oak Boulevard Suite 4100
                                   Houston, Texas 77056
                                   (832) 390 2252 Telephone
                                   ATTORNEY FOR APPELLANT
                    IDENTITY OF PARTIES AND COUNSEL

       Pursuant to TEX.R.APP.P. 38.1(a), the following is a list of all interested

parties in this cause:

       1.     ARKANDI MINNASSIAN- Appellant

       2.     Sam Adamo - Trial Counsel for Appellant during MTS
              and Plea of Guilty
              3200 Travis Street, Fourth Floor
              Houston, Texas 77006

       2a.    Gary Polland- Trial Counsel for Appellant during Sentencing
              2211 Norfolk, Suite 920
              Houston, Texas 77098

       3.     Devon Anderson - District Attorney for Harris County, Texas
              1201 Franklin, Suite 600
              Houston, Texas 77002

       4.     Ed McClees- Lead ADA for Harris County, Texas
              1201 Franklin, Suite 600
              Houston, Texas 77002

       5.     Allan Curry, Chief Appellate Division, District
              Attorney’s Office for Harris County, Texas 1201
              Franklin, Suite 600
              Houston, Texas 77056
                                         /s/ Douglas M. Durham
                                        DOUGLAS M. DURHAM
                                        State Bar Number: 06278450
                                        2800 Post Oak Boulevard Suite 4100
                                        Houston, Texas 77056
                                        (832) 390 2252
                                        Appellant’s Counsel on Appeal

                                          ii
                   TABLE OF
                   CONTENTS                            Page

Table of Contents………………………………………………………………..iii

Index of Authorities (Cases)……………………………………………………..vi

Constitutions and Statues………………………………………………………..vii

Preliminary Statement…………………………………………………………….1

Statement Regarding Oral Argument……………………………………………..3

Appellant Waives Requests Oral Argument……………………………………...3

Questions Presented…………………………………………………………….3-4

        WHETHER THE WARRANTLESS ARREST OF APPELLANT
        AND SEARCH OF A LAPTOP FOUND IN VEHICLE, WITHOUT
        PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES, WAS
        UNREASONABLE AND VIOLATED THE FOURTH
        AMENDMENT OF THE UNITED STATES CONSTITUTION?

       WHETHER THE WARRANTLESS ARREST OF APPELLANT
       AND SEARCH OF A LAPTOP FOUND IN VEHICLE, WITHOUT
       PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES,
       VIOLATED § 14.03(a) OF THE TEXAS CODE OF CRIMINAL
       PROCEDURE?

        WHETHER APPELLANT WAS DENIED EFFECTIVE
        ASSISTANCE OF COUNSEL DURING THE SUPPRESSION
        HEARING?

        WHETHER APPELLANT’S GUILTY PLEA WAS
        INVOLUNTARY?

Statement of Facts…………………………………………………………………4
                            iii
First Point of Error………………………………………………………………...6

       THE WARRANTLESS ARREST OF APPELLANT AND SEARCH
       OF A LAPTOP FOUND IN VEHICLE, WITHOUT PROBABLE
       CAUSE AND EXIGENT CIRCUMSTANCES, WAS
       UNREASONABLE AND VIOLATED THE FOURTH
       AMENDMENT OF THE UNITED STATES CONSTITUTION

Factual Summary…………………………………………………………………6

Argument and Authorities………………………………………………………..6

Second Point of Error ……………………………………………………………7

       THE WARRANTLESS ARREST OF APPELLANT AND SEARCH
       OF A LAPTOP FOUND IN VEHICLE, WITHOUT PROBABLE
       CAUSE AND EXIGENT CIRCUMSTANCES, VIOLATED §
       14.03(a) OF THE TEXAS CODE OF CRIMINAL PROCEDURE

Factual Summary………………………………………………………………..13

Argument and Authorities……………………………………………………….14

Third Point of Error……………………………………………………………….

       APPELLANT’S GUILTY PLEA WAS INVOLUNTARY

Factual Summary…………………………………………………………………13

Argument and Authority…………………………………………………………14

Fourth Point of Error…………………………………………………………..….16

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE DURING
       THE SUPPRESSION HEARING

Factual Summary…………………………………………………………………16

Argument and Authorities………………………………………………………16


                          iv
Conclusion……………………………………………………………………….21

Certificate of Service……………………………………………………………22




                       v
                             AUTHORITY                               Page


Abercrombie v. State, 528 S.W.2d 578 (Tex. Crim. App. 1975)………….……. .10

Amores v. State, 816 S.W.2d. 407 (Tex. Crim. App. 1991)………….………….. 12

Bellah v. State, 641 S.W.2d 641 (Tex. App-El Paso 1982), affirmed 653 S.W.2d
795 (Tex. Crim. App. 1983) ………………………………...……………………10

Brown v. State, 481 S.W.2d 106 (Tex. Crim. App. 2006)………………………… 8

Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) …………………13

Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990)………………………...18

Chimel v. California, 395 U.S. 752 (1969)………………………………………. 8

Dixon v. State, 206 S.W.3d 613 (Tex. Cri m. App. 2006)………………………… 9

Dyar v. State, 125 S.W.3d 460 (Tex. Crim. App. 2003)………….………………11

Ex parte Battle, 817 S.W. 2d 81 (Tex. Crim. App. 1991)……………………...… 17

Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987). ………………………17

Florida v. Jardines, 133 S.Ct. 1409 (2013)……………………………………..17

Galitz v. State, 617 S.W.2d 949 (Tex. Crim. App. 1981)………….….…………. 13

Heitman v. State, 815 S.W.2d 690 (Tex. Crim. App. 1991)…………………...….. 5

Hernandez v. State, 726 S.W.2d 53, 56 (Tex. Crim. App. 1986)…………..……. 17

Hill v. Lockhart, 474 U.S. 52 (1985)…………………………..………………… 17

                                     vi
Hulit v. State, 982 S.W.2d 431(Tex. Crim. App. 1998)…………………...……… 5

Illinois v. Gates, 462 U.S. 213 (1983)…………………………………………….. 8

Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)………………….. 4

Keehn v. State, 279 SW3d 330 (Tex. Crim. App. 2009)…...…………………. 7, 14

Keith v. State, 975S.W.2d 433 (Tex. App.--Beaumont 1998, no pet.)…………… .4

Loesh v. State, 958 S.W.2d 830 (Tex. Crim. App. 1997)…………………..……. 12

Lowery v. State, 843 S.W.2 136 (Tex. App.-Dallas 1992, pet. ref'd.) …………9, 10

Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d) …………………………………………………………………………..… 18

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) …………………………12

Riley v. California, 134 S.Ct. 2473 (2014)…………………………………8, 11, 13

Smith v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007)……………...………. ….3

Solis v. State, 945 S.W.2d 300 (Tex. App.--Houston [1st Dist.] 1997, pet. ref’d)....4

Strickland v. Washington, 466 U.S. 668 (1984)……………………….……..15, 17

Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013)………………………...5

U.S. v. Ross, 456 U.S. 798 (1982)……………………………………..…….7, 9, 14

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)…………………....13

Wong Sun v. U.S., 371 U.S. 471 (1963)……………………………………..…....16




                                         vii
             CONSTITUTIONS AND STATUTES                Page

TEX. R. CRIM. PRO. § 14.03(a)…………………………..……………...…4, 11

TEX. R. CRIM. PRO. § 37.07……………………………………………...…….3

TEX. PENAL CODE §32.51 (b) (2013)……….…..……………..………………2

TEX. R. App. P. 33.1 (a) …………………………………………………..…. 13

TEX. R. APP. P. 33.1(a)(1)………………………………………………..……… 4

TEX. R. APP. P. 9(i)(2)(B) …………………...…………..………………….....22

TEX. R. CRIM. PRO. § 14.03(a)(1)….…….…………………………… 8, 14, 15

TEX. R. APP. P. 9(l)(3)……………………………………….………….20

U. S. CONST. AMEND. IV……………………………………………4, 8




                            viii
                               NO. 14-13-01086-CR


                         IN THE COURT OF APPEALS
                          FOR THE FIRST JUDICIAL
                            DISTRICT OF TEXAS
                            HOUSTON, TEXAS


                             ARKANDI MINNASSIAN

                                          VS.

                               THE STATE OF TEXAS


                          Appealed from the District Court
                             of Harris County, Texas
                             338th Judicial District
                               Cause No. 1300894


                              APPELLANT'S BRIEF



TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW, ARKANDI MINNASSIAN, Appellant in the above

styled and numbered cause and would show the Court as follows:

                          PRELIMINARY STATEMENT

      This is an appeal from an adverse ruling on a pre-trial Motion to Suppress,




                                          1
    subsequent guilty plea and sentence1 of thirty (30) years in prison for the offense of

    “Fraudulent Possession of Identifying Information” as proscribed by the TEX.

    PENAL CODE §32.51 (b) (2013). On the 26th day of May 2011, the 178th grand

    jury of Harris County, Texas returned a one (1) paragraph indictment against the

    Appellant, in Cause Number 1300894, alleging in paragraph one (1) [omitting the

    formal parts] that:

      …in Harris County, Texas, ARKANDI MINNASSIAN, hereafter styled
      the Defendant, heretofore on or about March 29, 2011, did then and there
      unlawfully, with the intent to defraud harm another, possess fifty or more pieces
      of identifying information, to wit: an electronic identification number of HUAN
      HO, CHRIS CELANO, WLIFREDO ARRENDONDO, WEIGUO YIN,
      WAYNE STOKER, HI URANAND GANGWANI, JIAJIAN ZHONG,
      GEORGE DILLARD, RONNY LIN, FORREST MORRJS, PRAKASH
      SHAH, JAVED SYED, JOSEPH GAY, GARY KERR. MICHAEL
      PERDUE, MOSHIN KASAMALI, ALVIN DOUGHTY, THOMAS
      DEWITT, TIIOMAS WEHLAGE, TRANG MAI, CHAI-CHU HSU,
      CHERYL HODGESON, TARIQ SIDDIQUE, EDWARD WONG, STEPHANIE
      GRIFFIN, MANUEL GODINEZ, DANNY GOZA, ZAHR ALI, LARRY
      LIN, SAMMY TILLISON, TIMOTHY HARRIS, RANDALL
      GARDNER, JEFFREY CONDIT, SANDEEPREDDY EADULA,
      EMILIA COLIN, LI RUIZ, EVA WADE, BILLY CASH , QUAN TON,
      NANCY VALENTON, SATISH PASARTI, JUNNAHVEE BENSON,
      BRIAN BOYD, SHEIH CHEN, SHAZAD RAJAN, LINDA HEATH,
      CHRISTOPHER BRAVO, VOJISLAV LABOVJC, RIAZ DHARANT,
      RONALD HOWARD, LUCIO VILLEGAS, ORANIT THUNYODOM,
      SALEEM MOMINKHOJA, JOHN CHEYNEY, PAMELA NEWTON, ERNEST
      RICHTER, living adult persons, without said persons' consent. (CR-I; p. 16).

On April 22, 2013 the Court granted over objection of trial counsel, the State’s



1
          The Court sentenced Appellant without a plea agreement following a pre-sentence report.
                                                 2
motion to amend the indictment, specifically: adding after the date of April 29,

2011, the words “pursuant to one scheme and continuing course of conduct” and

deleting the words “an electronic identification number” and replacing with the words “a

telecommunication access device.” (CR-I; p. 17 and RR-II; p. 4-13). On May 5, 2014,

Appellant, following a hearing and adverse ruling on his Motion to Suppress,

Appellant executed a waiver of certain constitutional rights (among them his right

to a jury trial, confrontation and cross-examination of witnesses) and entered a plea

of guilty without an agreed recommendation regarding punishment. (CR-I; p. 479,

493 and RR-III; p. 5-33). Thereafter the matter was reset for preparation of a Pre-

sentence report and sentencing hearing. (CR-I; p. 479, 493 and RR-III; p. 5-33).

On October 28, 2015, the Court heard and granted Appellant’s Motion to

Substitute Attorney Gary Polland for Attorney Sam Adamo. (RR-IV; p. 1-7). On

November 7, 2013, the Court conducted a hearing regarding Appellant’s

Objections to the Pre-sentence Report 2. (RR-V; p. 2-5). On November 18, 2013,

after a punishment hearing the Court sentenced Appellant to thirty (30) years in



2
         Appellant’s counsel (Gary Polland) objected to the PSI report containing “extraneous
offense” evidence. (RR-V; p. 2-5). Specifically, to a “Nevada case that was never filed.” (RR-
VI; p. 7). Where a PSI report contains information regarding extraneous offenses, Section 3(a)(1)
of Article 37.07 of the Texas Code of Criminal Procedure permits a trial court, as a sentencing
entity, to consider extraneous misconduct evidence in assessing punishment, even though the
extraneous offense has not been shown to have been committed by the defendant beyond a
reasonable doubt. Smith v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007).
                                                3
prison3. (CR-I; p. 557 and RR-VI; p. 1-22). On May 5, 2014, the Court signed a

written certification of Appellant’s Right to Appeal, stating “that this criminal case

is not a plea bargain case and the Defendant has a right to appeal.” (CR-I; p. 588).

On November 18, 2013, Appellant filed in writing timely notice of appeal. (CR-I;

p. 560).


                          STATEMENT REGARDING ORAL
                                 ARGUMENT

                     APPELLANT REQUESTS ORAL ARGUMENT

                               QUESTIONS PRESENTED

               WHETHER THE WARRANTLESS ARREST OF APPELLANT
               AND SEARCH OF A LAPTOP FOUND IN VEHICLE, WITHOUT
               PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES, WAS
               UNREASONABLE AND VIOLATED THE FOURTH
               AMENDMENT OF THE UNITED STATES CONSTITUTION?

              WHETHER THE WARRANTLESS ARREST OF APPELLANT
              AND SEARCH OF A LAPTOP FOUND IN VEHICLE, WITHOUT
              PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES,
              VIOLATED § 14.03(a) OF THE TEXAS CODE OF CRIMINAL
              PROCEDURE?

3
        Appellant was eligible for probation and his co-defendant, Arin Mehrabian was sentenced
to 15 years in prison. (RR-VII; p. 40). Texas courts have traditionally held that if the punishment
assessed is within the range of punishment established by the legislature under its constitutional
authority, there is no violation of the state or federal prohibitions against cruel and unusual
punishment. Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Further, no
objection was made by trial counsel at time of sentencing as to an Eighth Amendment violation
and to the extent that the issue had merit it was waived. See TEX. R. APP. P. 33.1(a)(1); Keith v.
State, 975S.W.2d 433 (Tex. App.--Beaumont 1998, no pet.); Solis v. State, 945 S.W.2d 300
(Tex. App.--Houston [1st Dist.] 1997, pet. ref’d).

                                                4
              WHETHER APPELLANT WAS DENIED EFFECTIVE
              ASSISTANCE DURING THE SUPPRESSION HEARING?

              WHETHER APPELLANT’S GUILTY PLEA WAS
              INVOLUNTARY?
                       STATEMENT OF FACTS

    On May 5, 2014, a hearing on Appellant’s Motion to Suppress 4 filed

by attorney of record Sam Adamo on December 15, 2011, was held by the

Court. (CR-I; p. 72 and RR-III; p. 1-43). No witnesses were called during

the hearing on the Motion to Suppress. (RR-III; p. 6). State’s Exhibit 200

(Federal Search Warrant and Affidavit under Seal) and State’s Exhibit

201 (Order Unsealing Federal Search Warrant) were both admitted

without objection. (RR-III; p. 7 and State’s Exhibits 200 and 201). The

relevant parts of probable cause affidavit attached to the Federal Search



4
        An earlier Motion to Suppress was filed on June 9, 2011 and signed by Appellant’s
counsel Bruce Kaye. (CR-I; p. 35).The Motion had no order attached and appears no ruling was
entered on this Motion by the Court. (CR-I; p. 46). Without obtaining an adverse ruling, all
argument asserted in this Motion to Suppress are not preserved. See Thomas v. State, 408
S.W.3d 877 (Tex. Crim. App. 2013). Appellant’s Motion to Suppress filed by Sam Adamo,
dated December 15, 2011 stated “The United States Constitution amendment IV and Texas
Constitution Article 1, section 9, prohibit unreasonable searches, seizures, and arrests.” The
Texas Court of Criminal Appeals has held “that similarities of the search and seizure provisions
in the State and Federal Constitutions, the United States Supreme Court may be permissive
authority in interpreting the Texas Constitution.” Hulit v. State, 982 S.W.2d 431(Tex. Crim. App.
1998). Although Texas Appellate Courts are not bound by federal case law in their analysis of
the protections provided by the Texas Constitution Article 1, section 9, Appellant has found no
authority to support the argument that the Texas Constitution Article 1, section 9, provides
greater protection that the Fourth Amendment. Heitman v. State, 815 S.W.2d 690 (Tex. Crim.
App. 1991) and cases interpreting Heitman.
                                               5
Warrant purporting to establish probable cause are as following:

            “I believe there is probable cause that the above listed property
            contains the items set forth on Attachment B, hereto, such items
            constituting evidence, fruits, and property designed for or intended to
            be used in violations of: Title 18, United States Code ( U SC) Section
            1029 ( Access Device Fraud) and 18 USC § 1028 (Identification
            Documents). I am a Special Agent of the United States Secret
            Service assigned to the Houston Field Office, and employed since
            November 2006.
                    This case originated on 03/25/11, when I was contacted by
            Special Agent (SA) Troy Sarria, United States Secret Service
            (USSS), Dallas Field Office, regarding an on-going case in their
            district involving gas pump skimmers. Through his investigation, SA
            Sarria determined Minassian is involved in an organized crime ring
            responsible for distributing highly sophisticated gas pump skimmers
            to several cities and downloading the credit card numbers, initially
            thought to be through Bluetooth devices later determined to be via
            Zigbee Radio technologies…
                    SA Sarria stated he received information that Minassian
            would be traveling from Dallas, TX to Houston, TX, on 03/29/11,
            and departing on 03/30/11. SA Sarria stated Minassian was traveling
            under the alias Ashot Aslanyan. On 03/28/11, Sgt. Gorski, HPD and
            Houston Area Fraud Task Force member, was notified 4 skimmers
            were found in 4 different gas pumps at a Valero gas station located at
            11499 Beamer Rd., Houston, TX 77089…
                    On 3/29/2011 HAFTF conducted surveillance of Minassian
            upon his arrival into Bush Intercontinental Airport. Minassian
            departed the airport riding in the passenger seat of a white Nissan
            Armada, California License Plate (LP) 5GRC174, registered to Arin
            Mehrabian. Minassian and the driver, later determined to be Arin
            Mehrabian, drove to the Valero gas station, located at 2404 Bay Area
            Blvd. Neither the driver nor the passenger attempted to get gas, and
            approximately 2-3 minutes later, the Nissan Armada departed the
            scene in an erratic behavior and at a high rate of speed. Mobile
            surveillance was discontinued.
                    Continuing on this date, members of the HAFTF conducted
            stationary surveillance at the Valero gas station, 11499Beamer Rd.
                                         6
              The Nissan Armada, LP 5GRC174, was observed driving up to the
              gas station pump and again, neither the driver or the passenger
              attempted to pump gas. Members of the HAFTF arrested Minassian
              and Mehiabian without incident. Search incident to arrest revealed an
              open, powered on, laptop in the passenger seat area, an additional
              laptop, 2 GPS devices, 6 universal keys for gas pumps, several cell
              phones, double sided tape, 2 thumb drives, and a USB radio
              receiver/transmitter device...
                     Due to the risk of losing the data stored on the computers, the
              laptops were immediately examined by SA Sparks. Approximately
              10,000 credit card numbers and names associated with these
              numbers were discovered. Efforts are on-going to examine the
              eight (8) skimmers found at the aforementioned pumps… (RR-
              VII; p. 25-30).

       Further, the Appellant offered (Defendant’s Exhibit 1-Memorandum in

   Support of Motion to Suppress) admitted without objection. (CR-I; p. 464 and

   RR-III; p. 8). Appellant’s “Summary of Argument” (Defendant’s

   Memorandum in Support of Motion to Suppress and Response to State’s Brief)

   was as follows:

              “Officers had neither authority to seize Defendant nor to search
       his car without a warrant. The State argues that the warrantless search
       and seizure were authorized pursuant to the following: (1) a Federal
       Search Warrant issued six days after officers unlawfully arrested
       Defendant and unlawfully seized his property; (2) the automobile
       exception 5 to the warrant requirement; or (3) as a search incident to

   5
        Under the automobile exception, law enforcement officials may conduct a warrantless
search of a vehicle if it is readily mobile and there is probable cause to believe that it contains
contraband. Keehn v. State, 279 SW3d 330 (Tex. Crim. App. 2009). The mobility of vehicles
generally creates an exigency. U.S. v. Ross, 456 U.S. 798 (1982). But see Riley v. California, 134
S.Ct. 2473 (2014) which suggests police must have warrant to search a cell phone or computer
seized as an incident to a lawful arrest.

                                                7
      arrest. Contrary to the State's arguments, the Defendant will
      demonstrate the illegality of the State's actions on the following grounds:
      (i) no probable cause existed at the time of the search to authorize a
      warrantless search under the automobile exception; (ii) no probable
      cause exists within the four comers of the Federal Search Warrant
      Affidavit; (iii) Officers were not authorized to execute a warrantless
      arrest because they did not have probable cause to execute the arrest, and
      the arrest did not take place in a suspicious place as required by Texas
      Code of Criminal Procedure article 14.03(a)(l); and (iv) because
      officers were not authorized to execute a warrantless arrest, they could
      not execute a valid search incident to the arrest.” (RR-VII; p. 56-57).

                              FIRST POINT OF ERROR

             THE WARRANTLESS ARREST OF APPELLANT AND SEARCH
             OF A LAPTOP FOUND IN VEHICLE, WITHOUT PROBABLE
             CAUSE AND EXIGENT CIRCUMSTANCES, WAS
             UNREASONABLE AND VIOLATED THE FOURTH
             AMENDMENT OF THE UNITED STATES CONSTITUTION


                              FACTUAL SUMMARY

      Appellant adopts the same facts as alleged in the Statement of Facts.

                          ARGUMENT AND AUTHORITY

   The state must show the existence of probable cause (at the time of the

warrantless arrest or search) and circumstances which made the procuring of a

warrant impracticable. Brown v. State, 481 S.W.2d 106 (Tex. Crim. App. 2006)

citing [Chimel v. California, 395 U.S. 752 1969]. Probable cause to search exists

when the totality of the circumstances provides an officer or magistrate with a

substantial basis for concluding that there is a fair probability of finding
                                          8
contraband or evidence at a particular location. Illinois v. Gates, 462 U.S. 213

(1983). Probable cause "must be grounded on facts within the knowledge of the

officer, which in the judgment of the court would make his faith reasonable."

U.S. v. Ross, 456 U.S. 798 (1982). Probable cause does not exist when a person

"whose identity, reliability, credibility, or basis of knowledge is unestablished,

[and he gives] information concerning criminal activity. Lowery v. State, 843

S.W.2 136 (Tex. App.-Dallas 1992, pet. ref'd.). Gates requires a court to look at

the totality of the circumstances when addressing whether a hearsay tip from a

confidential informant provides an officer or magistrate with probable cause.

Id. The Court of Criminal Appeals applies the following factors to determi ne

whether a confidential informant's tip provides probable cause: whether the

evidence established that (1) the confidential informant was credible and

reliable; (2) the confidential informant was relaying freshly obtained, personally

observed information; and (3) the confidential informant provided a wealth of

verifiable details. Dixon v. State, 206 S.W.3d 613 (Tex. Cri m. App. 2006). When

dealing with hearsay from an unnamed confidential informant, the proven

reliability and credibility of the informant are "highly relevant" considerations.

Gates, 462 U.S. at 231. A conclusory, barebones statement about the

reliability and credibility of an informant is inadequate. Gates, 462 U.S. at 239.

                                         9
Where the officer has no prior experience with the confidential informant,

the court may look to other facts to determine the reliability and credibility,

such as criminal record, employment history, and reputation in the community.

Abercrombie v. State , 528 S.W.2d 578 (Tex. Crim. App. 1975); Bellah v. State

, 641 S.W.2d 641 (Tex. App-El Paso 1982), affirmed 653 S.W.2d 795 (Tex.

Crim. App. 1983).

   In Dixon, supra., the informant had been 1) reliable in the past (informant had

given information on at least five previous occasions that had led to arrests); 2) the

information about the suspect was sufficiently detailed (informant told police the

suspect’s name, location, physical appearance, description of “suspect vehicle”

with license plate number, and that he had personally observed the suspect in

possession of rock cocaine); 3) the information was verifiable (police went to

location and observed suspect siting in car matching the physical description of

suspect and make and license plate of car).

   By contrast, in Lowery v. State, 843 S.W.2d 136 (Tex. App.- Dallas 1992), the

Court found there was no basis to conclude that the informant was credible or his

information reliable. The information provided was conclusory (informant said he

had seen people in suspect’s house that were high and he believed that a female in

house was exchanging sex for drugs). The Court concluded that these facts were

                                          10
not of sufficient detail to be verified.

        Here, the informant’s tip that Appellant was involved in “an organized

 crime ring responsible for distributing highly sophisticated gas pump skimmers”

 was nothing more than a conclusory statement. The fact that gas pump skimmers were

 previously found at the same gas stations where Appellant was later observed, does

 not establish “a substantial basis for concluding” that Appellant was engaged in

 unlawful activity. The reference that Agent Sarria “received information” regarding

 Appellant’s “traveling from Dallas, TX to Houston, TX, on 03/29/11, and

 departing on 03/30/11” fails to establish: (1) the confidential informant was

 credible and reliable; (2) the confidential informant was relaying freshly

 obtained, personally observed information; and (3) the confidential informant

 provided a wealth of verifiable details.”

   Lastly, assuming arguendo that the “informant’s tip” was sufficiently verified

by police surveillance to provide probable cause for a “warrantless arrest.” The

United States Supreme Court has recently ruled that “police officers generally

cannot, search digital information on cell phones or computers seized from

defendants as an incident to a lawful arrest, without a search warrant. Riley v.

California, 134 S.Ct. 2473 (2014).


                                           11
                             SECOND POINT OF ERROR

             THE WARRANTLESS ARREST OF APPELLANT VIOLATED
             §14.03 (a) OF THE TEXAS CODE OF CRIMINAL PROCEDURE


                        ARGUMENT AND AUTHORITY

      Texas law imposes a general requirement, subject to exception, that arrests

be made pursuant to arrest warrants. Dyar v. State, 125 S.W.3d 460 (Tex. Crim.

App. 2003). Texas Code of Criminal Procedure permits the warrantless arrest of an

individual when: 1) persons found in suspicious places and under circumstances

which reasonable show that such persons have been guilty of some felony,

violation of title 9, chapter 42, Penal Code, breach of the peace, or offense under

49.02, Penal Code, or threaten, or are about to commit some offense against the

laws.” The Texas Court of Criminal Appeals interpreted Article 14.03(a)(1), in

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993), as the functional

equivalent of probable cause. Where facts were as consistent with innocent activity

as with criminal activity, the arrest of a suspect based on those facts is unlawful

under Article 14.03 (a) (1). Amores v. State, 816 S.W.2d. 407 (Tex. Crim. App.

1991). Judge Cochran in her concurring opinion in Dyar v. State, supra., reasoned

that analysis of Article 14.03 (a) (1), should be consistent with federal cases



                                          12
applying the “exigent circumstances doctrine” and is the appropriate “analytical

framework for future fact scenarios under the statute.”

       Here, Appellant’s conduct, as a mere passenger in a car observed driving to

and from gas pumps at two gas stations, is equally consistent with innocent

activity6 and fails to establish probable cause and exigent circumstances justifying

a warrantless arrest of Appellant and search of the lap top as an incident thereto.

Loesh v. State, 958 S.W.2d 830 (Tex. Crim. App. 1997). See also Riley v.

California 134 S.Ct. 2473 (2014).


                              THIRD POINT OF ERROR

               APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
               COUNSEL DURING THE SUPPRESSION HEARING

                                    FACTUAL SUMMARY

         Appellant adopts the same facts as alleged in the Statement of Facts.

                           ARGUMENT AND AUTHORITY


    A motion to suppress is nothing more than a specialized objection to the

admissibility of evidence. Galitz v. State, 617 S.W.2d 949 (Tex. Crim. App. 1981).

To preserve a complaint for appellate review, a party must have presented to the


6
        Appellant and his driver could have been using the gas station as a stopping point in order
to look at a map or GPS device in order to orient themselves, while in route to some other
destination.
                                                13
trial court a timely request, objection, or motion stating the specific grounds for the

ruling desired. Tex. R. App. P. 33.1(a). A defendant’s appellate contention must

comport with the specific objection made at trial. Wilson v. State, 71 S.W.3d 346,

349 (Tex. Crim. App. 2002). An objection stating one legal theory may not be

used to support a different legal theory on appeal. Broxton v. State, 909 S.W.2d

912, 918 (Tex. Crim. App. 1995).

   Appellant’s the Motion to Suppress, filed by Sam Adamo on December 15,

2011 argued that: “The United States Constitution amendment IV and Texas

Constitution Article 1, section 9, prohibit unreasonable searches, seizures, and

arrests.” (CR-I; p. 72). “Texas Code of Criminal Procedure Article 38.23 prohibits

introduction of evidence obtained in violation of these constitutional provisions.”

(CR-I; p. 72). “(A) The warrantless arrest was not authorized under Chapter 14 of

the Code of Criminal Procedure and contravened the constitutional protections of

the Fourth and Fourteenth Amendments to the United States Constitution and

Article One, Section Nine of the Texas Constitution.” (CR-I; p. 72). Specifically,

citing “Texas Code of Criminal Procedure, Article 14.03(a)(1)” and arguing: (i)

“the present facts are insufficient to give officers probable cause to arrest

Appellant; (ii) “the suspicious places requirement is not met; (iii) Officer’s had

ample time to procure an arrest warrant; (B) The Search and Seizure of the

                                          14
computer’s violated Appellant’s reasonable expectation of privacy and fails to fall

within an exception to the warrant requirement infringing on Appellant’s

Constitutional Rights.” (CR-I; p. 73-75). Appellant’s “Memorandum in Support of

Motion to Suppress…” filed by Sam Adamo on May 5, 2014, argued: “Officers

had neither authority to seize Defendant nor to search his car without a warrant.

The State argues that the warrantless search and seizure were authorized

pursuant to the following: (1) a Federal Search Warrant issued six days after

officers unlawfully arrested Defendant and unlawfully seized his property; (2)

the automobile exception 7 to the warrant requirement; or (3) as a search incident

to arrest. Contrary to the State's arguments, the Defendant will demonstrate the

illegality of the State's actions on the following grounds: (i) no probable cause

existed at the time of the search to authorize a warrantless search under the

automobile exception; (ii) no probable cause exists within the four corners of

the Federal Search Warrant Affidavit; (iii) Officers were not authorized to

execute a warrantless arrest because they did not have probable cause to execute

the arrest, and the arrest did not take place in a suspicious place as required by

Texas Code of Criminal Procedure article 14.03(a)(l); and (iv) because officers


7
       Under the automobile exception, law enforcement officials may conduct a warrantless
search of a vehicle if it is readily mobile (exigent circumstance) and there is probable cause to
believe that it contains contraband. Keehn v. State, 279 SW3d 330 (Tex. Crim. App. 2009). See
also U.S. v. Ross, 456 U.S. 798 (1982).
                                                15
were not authorized to execute a warrantless arrest, they could not execute a

valid search incident to the arrest.” (CR-I; p. 464-465).

       To show ineffective assistance of counsel, a defendant must first show that

his counsel's performance fell below an objective standard of reasonableness, and

second that the deficient performance prejudiced the defendant's case. Strickland

v. Washington, 466 U.S. 668 (1984). Trial counsel’s argument, in his

Memorandum in support of the Motion to suppress, that “no probable cause exists

within the four corners of the Federal Search Warrant Affidavit” further asserts

“the Federal Magistrate Judge did not have a substantial basis upon which to find

that the facts stated within the four corners of the affidavit gave officers probable

cause to believe that evidence of a crime would be found in the Defendant’s

possession.” (CR-I; p. 474). However, he does not address the facts recited in the

affidavit that:

        “…Due to the risk of losing the data stored on the computers, the laptops
       were immediately examined by SA Sparks. Approximately10,000 credit
       card numbers and names associated with these numbers were
       discovered.”


The information regarding the credit cards names and numbers found in the lap

tops was a fact that appeared within the four corners of the search warrant

affidavit. Regardless, in Wong Sun v. U.S., 371 U.S. 471 (1963) the Supreme

                                          16
Court has made clear that any evidence that is obtained by the “exploitation of an

illegality” may not be used as evidence. Here Appellant’s counsel, failed to argue

that the information recovered by the warrantless search of both laptops (names

and credit card numbers) was tainted and the fruit of the poisonous tree. 8 Without

the inclusion of those facts in the search warrant affidavit, the search warrant

affidavit fails to establish probable cause. 9 See also Florida v. Jardines, 133 S.Ct.

1409 (2013);[where warrantless entry by dog and canine officer into curtiliage of

home and reportedly positive dog sniff tainted probable cause recited in warrant].

To the extent trial counsel failed to specifically argue this legal theory (regarding

the specific manner and means that the federal search warrant was invalid), he has

waived this theory on appeal.

       Accordingly, Appellant was denied effective assistance of counsel during the

suppression hearing.


                                FOURTH POINT OF ERROR

              APPELLANT’S GUILTY PLEA WAS INVOLUNTARY


                                   FACTUAL SUMMARY

         Appellant adopts the same facts as alleged in the Statement of Facts.

8
        See Wong Sun v. U.S., 371 U.S. 471 (1963).
9
        Appellant’s arrest was unlawful and entry and search of laptops was unlawful for reasons
asserted under points of error one and two in this Brief.
                                               17
                        ARGUMENT AND AUTHORITY


   A defendant's election to plead guilty when based upon erroneous advice of

counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W. 2d 81

(Tex. Crim. App. 1991). The test for ineffective assistance of counsel during the

plea bargaining process is to show that counsel's representation fell below an

objective standard of reasonableness, and that this deficient performance

prejudiced the defense. Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App.

1987). In evaluating a claim of ineffective assistance of counsel arising out of the

plea process, this court must apply the Strickland test. Hill v. Lockhart, 474 U.S.

52 (1985); Hernandez v. State, 726 S.W.2d 53, 56 (Tex. Crim. App. 1986). The

test requires that the defendant demonstrate that (1) counsel's representation fell

below an objective standard of reasonableness, and (2) there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668

(1984). “Reasonable probability” means a “probability sufficient to undermine

confidence in the outcome.” Id. at 694. Strickland’s second prong carries a lower

burden of proof than the “preponderance of the evidence” standard applicable to

the first prong. Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990).

Appellant need not show that counsel’s deficient performance “more likely than
                                           18
not altered the outcome of the case.” Milburn v. State, 15 S.W.3d 267, 269 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d). Instead, Appellant satisfies the

prejudice requirement of Strickland by showing “a reasonable probability” that

absent counsel’s erroneous advice, Appellant would not have entered his plea.

Without it, the factual basis to support the Court’s finding of Appellant’s guilt is

legally insufficient.

   Here, the evidence presented during the Motion for New Trial established, “to

a reasonable probability” that Appellant did not believe his trial counsel was

prepared for the suppression hearing or trial. After the adverse ruling on the

Motion to Suppress, he felt pressured by his trial counsel to enter a plea of guilty,

and erroneously believed, if convicted by a jury (after a trial), that the Judge was

the exclusive decision maker regarding his sentence. Appellant was led to believe

if he went to trial and was convicted he would receive a more severe sentence

than if he entered a plea of guilty. He was led to believe that if he entered a plea

of guilty he would get a sentence of less than twenty (20) years. (MNT-IV;

Exhibit D; p. 287-290 and MNT-IV; Exhibit F; p. 294-295).




                                           19
                          CONCLUSION



Accordingly, Appellant’s case should be reversed and remanded for a new trial.


                                       Respectfully submitted,
                                         /s/ Douglas M. Durham
                                       DOUGLAS M. DURHAM
                                       State Bar Number: 06278450
                                       2800 Post Oak Boulevard Suite 4100
                                       Houston, Texas 77056
                                       Telephone (832) 390 2252
                                       ATTORNEY FOR APPELLANT




                                  20
               CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the above

and foregoing Appellant's Brief was served on Assistant

Criminal District Attorney by hand delivery on this the 29th

day of May, 2015.




                                              /s/ Douglas M. Durham
                                       DOUGLAS M. DURHAM




                             21
                 CERTIFICATE OF COMPLIANCE

      I hereby certify that pursuant to Tex. R. Of App. Procedure

9(l)(3), that the number of words in this Brief is less than 15,000

words to wit: 5507 words, in compliance with Tex. R. Of App.

Procedure, 9(i)(2)(B) on this the 29TH day of May, 2015.




                                                 /s/ Douglas M. Durham
                                          DOUGLAS M. DURHAM




                                22
