                                                                                 PD-1087-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
January 20, 2015                                              Transmitted 1/19/2015 1:54:33 PM
                                                                Accepted 1/20/2015 8:33:44 AM
                                                                                  ABEL ACOSTA
                                 NO. PD-1087-14                                           CLERK

                    IN THE CRIMINAL COURT OF APPEALS
                                OF TEXAS
                              AUSTIN, TEXAS


                           IKE ANTYON BRODNEX,
                                 Appellant,

                                        v.

                            THE STATE OF TEXAS,
                                  Appellee.


                            NO. 11-12-00076-CR
                       IN THE COURT OF APPEALS
             ELEVENTH SUPREME JUDICIAL DISTRICT OF TEXAS
                           EASTLAND, TEXAS


     Appealed from the 385th Judicial District Court of Midland County, Texas
        Honorable Robert H. Moore, III, Judge Presiding by Assignment


                         BRIEF OF THE APPELLANT



                                      Raymond K. Fivecoat
                                      State Bar No. 24010024
                                      FIVECOAT & ROGERS, P.L.L.C.
                                      214 W. Texas Ave., Ste. 811
                                      Midland, Texas 79701
                                      (432) 620-8774 (Telephone)
                                      (432) 620-9945 (Facsimile)
                                      ray@fivecoatlaw.com

                   APPELLANT REQUESTS ORAL ARGUMENT
                        IDENTITY OF THE PARTIES

       Pursuant to Tex. R. App. P. 38.1(a), Appellant IKE ANTYON BRODNEX,
certifies that the following is a complete list of the names and addresses of the
parties to the final judgment of the trial and their counsel:

APPELLANT
IKE ANTYON BRODNEX                         RAYMOND K. FIVECOAT
TDCJ# 01771584                             FIVECOAT & ROGERS, P.L.L.C.
Smith Unit                                 214 W. Texas Ave., Ste. 811
1313 County Road 19                        Midland, Texas 79701
Lamesa, Texas 79331                             Appellate Counsel

                                           RAYMOND K. FIVECOAT
                                           FIVECOAT & ROGERS, P.L.L.C.
                                           214 W. Texas Ave., Ste. 811
                                           Midland, Texas 79701
                                                Trial Counsel

APPELLEE
STATE OF TEXAS                             BETHANY STEPHENS
                                           REBECCA PATTERSON
                                           Assistant District Attorney
                                           500 N. Loraine, Ste. 200
                                           Midland, Texas 79701
                                                 Trial Counsel

                                           CAROLYN THURMOND
                                           Assistant District Attorney
                                           500 N. Loraine, Ste. 200
                                           Midland, Texas 79701
                                                 Appellee Counsel

TRIAL COURT JUDGE                          JUDGE ROBERT H. MOORE, III
                                           Sitting by Assignment
                                           385th Judicial District Court
                                           Midland County, Texas
                                           500 N. Loraine, Ste. 900
                                           Midland, Texas 79701



                                      i
                                        TABLE OF CONTENTS

IDENTITY OF THE PARTIES.................................................................................i

TABLE OF CONTENTS..........................................................................................ii

INDEX OF AUTHORITIES...............................................................................iii-iv

STATEMENT REGARDING ORAL ARGUMENT...............................................v

STATEMENT OF THE CASE AND PROCEDURAL HISTORY......................1-2

GROUNDS FOR REVIEW………….......................................................................3

The Court of Appeals erred in upholding the trial court’s denial of Brodnex’s
Motion to Suppress Evidence when it found that an officer has reasonable
suspicion to detain a suspect based upon observing the suspect walking with
another person at 2 a.m. in an area known for narcotics activity and based
upon the officer's unsubstantiated belief that the suspect is a "known
criminal".

REASONS FOR REVIEW........................................................................................3

ARGUMENT AND AUTHORITIES..................................................................4-11

PRAYER............................................................................................................11-12

CERTIFICATE OF SERVICE................................................................................13

CERTIFICATE OF COMPLIANCE.......................................................................14




                                                        ii
                              INDEX OF AUTHORITIES

Cases:

Adams v. Williams,
     407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923-24, 32 L.Ed. 2d. 612 (1972) ......5

Armstrong v. State,
     550 S.W.2d 25 (Tex. Crim. App. 1976)
     (opinion on state's motion for rehearing, 1977).......................................10-11

Brown v. State,
     443 U.S. 47,53,99 S.Ct. 2637, 2641, 61 L.Ed.2d. 357 (1979) .......................9

Davis v. State,
      947 S.W.2d 240, 244 (Tex. Crim. App. 1997) ............................................5,6

Ford v. State,
      158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005) ..........................................5

Gamble v. State,
    8 S.W.3d 452, 453-54 (Tex. App. Houston [1st Dist.] 1999, no pet.) ............9

Garcia v. State,
     43 S.W.3d 527, 530 (Tex. Crim. App. 2001) .................................................6

Garza v. State,
     771 S.W.2d 549, 558 (Tex. Crim. App. 1989) ......................................5, 9-11

Howe v. State,
     874 S.W.2d 895, 900 (Tex. App. – Austin 1994, no pet.) ..............................6

Leighton v. State,
      544 S.W.2d 394 (Tex. Crim. App. 1976)
      (opinion on appellant's motion for rehearing, 1976).....................................11


Madden v. State,
     242 S.W.3d 504, 517 (Tex. Crim. App. 2007) ...............................................6



                                             iii
Scott v. State,
       549 S.W.2d 170 (Tex. Crim. App. 1976) .......................................................9

Shaffer v. State,
      562 S.W.2d 853, 855 (Tex. Crim. App. 1978) ...............................................5

Terry v. Ohio,
      392 U.S. 1, 88 S.Ct. 1968, 20 L.Ed. 2d 889 (1968) .......................................5

Torres v. State,
      182 S.W.3d 899, 902 (Tex. Crim. App. 2005) ...............................................4

United States v. Brignoni-Ponce,
      422 U.S. 873, 878, 95 S.Ct. 2574, 2549, 45 L.Ed.2d 607 (1975) ..................9

United States v. Cortez,
      449 U.S. 411, at 420-21, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ...................9

United States v. Jimenez-Medina,
      173 F.3d 752 (9th Cir. 1999) ...........................................................................9

Williams v. State,
      621 S.W.2d 609, 612 (Tex. Crim. App. 1981) ............................................5-6




                                                    iv
             STATEMENT REGARDING ORAL ARGUMENT

      Brodnex believes that oral argument would assist this Court in the

explanation and disposition of the issue presented in this petition. Therefore,

Brodnex respectfully requests oral argument.




                                      v
To the Honorable Justices of the Court of Criminal Appeals:

      Now Comes Appellant, IKE ANTYON BRODNEX, Appellant in this cause,

by and through his attorney of record, Raymond K. Fivecoat, and, pursuant to the

provision of Tex.R.App.Pro. 66, et seq., moves this Court to grant discretionary

review, and in support, would show as follows:

       STATEMENT OF THE CASE AND PROCEDURAL HISTORY

      Appellant was indicted in a two-count indictment, with tampering with

physical evidence, and with possession of a controlled substance, less than 1 gram,

each of which also contained enhancement paragraphs. (I CR at 9-12). Appellant

filed a Motion to Suppress Evidence, which was denied by the trial court after a

hearing on the same. (I CR at 118, 128; VI RR at 1). After a bench trial, the trial

court found Appellant not guilty of the tampering with evidence count, but guilty

to the possession of a controlled substance, less than 1 gram. (VII RR at 61; I CR

at 131–136). The trial court sentenced Appellant to the maximum term of twenty

(20) years confinement in the Institutional Division of the Texas Department of

Criminal Justice. (VII RR 7 at 94; I CR at 131).

      Appellant filed his notice of appeal from this ruling. (I CR at 139). The

Eleventh Court of Appeals affirmed the trial court’s denial of Appellant’s Motion

to Suppress, and affirmed his conviction in an opinion not designated for

publication.   Brodnex v. State, No. 11-12-00076-CR (Tex. App. – Eastland,



                                         1
delivered July 17, 2014).    Appellant timely filed a Petition for Discretionary

Review with this Court, which was refused on November 6, 2014; however, within

the Order refusing Appellant’s petition for discretionary review, this Court granted

review on its own motion.




                                         2
                           GROUNDS FOR REVIEW

      The Court of Appeals erred in upholding the trial court’s denial of

Brodnex’s Motion to Suppress Evidence when it found that an officer has

reasonable suspicion to detain a suspect based upon observing the suspect walking

with another person at 2 a.m. in an area known for narcotics activity and based

upon the officer's unsubstantiated belief that the suspect is a "known criminal".

                            REASONS FOR REVIEW

      Review is proper pursuant to Tex. R. App. Pro. 66.3(a) because the Court of

Appeals decision conflicts with another Court of Appeals’ decision on the same

issue. Review is proper under Tex. R. App. Pro. 66.3(b) because the Court of

Appeals has decided an important question of state law that has not been, but

should be, settled by the Court of Criminal Appeals. Review is also proper under

Tex. R. App. Pro. 66.3(c) in that the Court of Appeals has decided and important

question of state law in a way that conflicts with applicable decisions of the Court

of Criminal Appeals or the Supreme Court of the United States. In the alternative,

the Court of Appeals ruling in this case calls for the Court of Criminal Appeals to

exercise its power of supervision under Tex. R. App. Pro. 66(f).




                                          3
                     ARGUMENTS AND AUTHORITIES

      The Court of Appeals erred in upholding the trial court’s denial of

Brodnex’s Motion to Suppress Evidence. This ruling establishes that an officer has

reasonable suspicion to detain a suspect based upon observing the suspect walking

with another person at 2 a.m. in an area known for narcotics activity and based

upon the officer's unsubstantiated belief that the suspect is a "known criminal".

However, such a conclusion is against the weight of the evidence presented at trial

in this case, and such a holding is also against the weight of the precedence

established by other appellate courts and by the Court of Criminal Appeals.

Therefore, such a ruling should be reversed.

      1.      Reasonable Suspicion is Required to Exist Prior to the Seizure of
              a Person or Property.

      The initial burden of proof on any motion to suppress filed with the trial

court on the basis of a Fourth Amendment violation rests with the defendant.

Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). The defendant

overcomes his burden by establishing that the search or seizure occurred without a

warrant. Torres at 902. After establishing the warrantless search or seizure, the

burden shifts to the State to establish the reasonableness of such a warrantless

search. Id.

      Once the Appellant has established that it is a warrantless search, it is up to

the State to prove that the officer conducting the search had reasonable suspicion

                                         4
prior to the seizure of the person or property. Davis v. State, 947 S.W.2d 240, 244

(Tex. Crim. App. 1997) (emphasis added). The same standards applied whether a

person is obtained as a pedestrian or is the occupant of an automobile. See Adams

v. Williams, 407 U.S. 143, 146–47, 92 S.Ct. 1921, 1923–24, 32 L.Ed. 2d 612

(1972) at 145–46, 92 S.Ct. at 1922–23; Shaffer v. State, 562 S.W.2d 853, 855 (Tex.

Crim. App. 1978).

      Appellant concedes that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed. 2d 889 (1968), a police officer can stop and briefly detain a person for

investigative purposes if they have a reasonable suspicion supported by articulable

facts the criminal activity may be afoot. Terry at 30. Reasonable suspicion exists

when, based on the totality of circumstances, the officer has specific, articulable

facts that, when combined with rational inferences from those facts, would lead

him to reasonably conclude that a particular person is, has been, or she will soon be

engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim.

App. 2005).

      The articulable facts “must create some reasonable suspicion that some

activity out of the ordinary is occurring or has occurred, some suggestion to

connect the detainee with the unusual activity, and some indication the unusual

activity is related to crime.” Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App.

1989). These facts must amount to more than a mere hunch or suspicion. Williams



                                         5
v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981), see also Howe v. State, 874

S.W.2d 895, 900 (Tex.App.—Austin 1994, no pet.).

      The burden is on the State to elicit testimony showing sufficient facts to

create a reasonable suspicion. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.

App. 2001). Whether reasonable suspicion exists is determined by considering the

facts known to the officer at the moment of detention. Davis v. State, 947 S.W.2d

240, 243 (Tex. Crim. App. 1997). Any investigative detention that is not based on

reasonable suspicion is unreasonable and violates the Fourth Amendment. Id.

      Whether the totality of circumstances is sufficient to support officers

reasonable suspicion is a legal question that is reviewed by appellate courts de

novo. See Madden v State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).

      2.     The Court of Appeals committed error in upholding the trial
             court’s denial of Brodnex’s Motion to Suppress Evidence, as it
             improperly found that reasonable suspicion existed to justify the
             seizure of Appellant.

      As shown by the evidence in this case, the State failed to establish that the

officer had any reasonable suspicion to prior to the seizure of Appellant’s person.

The officer failed to articulate any facts that Brodnex had or was engaging in some

out of the ordinary activity, or any facts that linked Brodnex to some unusual

activity related to a crime.

      The officer testified that he observed two individuals leaving a hotel at 2:00

a.m. on foot and made contact with them. (6 RR at 5). The officer did not know

                                         6
these two individuals prior to making contact. (6 RR at 10-11). The officer

initially testified that he made contact with the two individuals, detained Brodnex

by placing him in handcuffs for officer safety, moved him to the front of the patrol

car and searched his person.1 (6 RR at 5-6). At the time the officer made contact

with Brodnex, he did not know Brodnex or his criminal history or background. (6

RR at 12). When Brodnex identified himself, the officer recognized Appellant as a

known criminal in Midland, but could not articulate any fact with any personal

knowledge to support his belief. (6 RR at 12).

       At no point does the officer testify the reason for making contact with these


       11
            Initially the officer testified that the first thing he did when he came into contact with

Brodnex was to handcuff him. (6 RR at 10). The officer later contradicted himself and testified

that he handcuffed Brodnex after he asked the two individuals where they were coming from and

what his name was. (6 RR at 11). However, the officer stated that when Brodnex was placed

into handcuffs, it was not captured on the patrol car’s in-car camera recording. (6 RR at 10).

The in-car video was admitted into evidence at trial and was played for the court at both the

suppression hearing and trial. (6 RR at 22, State's Exhibit 1, 7 RR at 27). testifies that he

handcuffed Brodnex after he asked the two individuals where they were coming from and what

his name was. (6 RR at 11). However, the officer stated that when Brodnex was placed into

handcuffs, it was not captured on the patrol car’s in-car camera recording. (6 RR at 10). Said in-

car video was admitted into evidence at trial and was played for the court at both the suppression

hearing and trial. (6 RR at 22, State's Exhibit 1, 7 RR at 27).



                                                  7
two individuals. He testified he did not know these individuals prior to making

contact. He testified that he merely that he saw two individuals leaving a hotel. (6

RR at 5). At no point in time did the officer articulate his belief that either the

individuals were involved in, about to be involved in, or had been involved in any

type of criminal activity.

      The State tried to illicit testimony from the officer about the area being a

known for narcotic activity. (6 RR at 6). However, the officer never testified that

this was a fact that he considered prior to making contact with Brodnex and the

individual he was walking with that morning. Likewise, the State attempted to

illicit testimony from the officer about the time of day this occurred (6 RR at 5),

but at no time does the officer state that the time of day was a fact that he

considered prior to making contact with Brodnex. Instead, the officer testified that

the time of day, the location and fact that he had contacted two individuals were

factors that caused him safety concerns to justify placing Brodnex in handcuffs

after he made contact with the two individuals. (6 RR at 6). Even with this

testimony, at no point time did the officer articulate that he had any belief that

either individuals were involved in, about to be involved in, or had been involved

in any type of criminal activity prior to making contact with these individuals.

      The fact that criminal activity is more likely in one geographical area than

another does not, by itself, satisfy the standards required for an interrogatory stop.



                                          8
United States v. Brignoni-Ponce, 422 U.S. 873, 882, 886, 95 S.Ct. 2574, 45

L.Ed.2d 607 (1975). Likewise, the time of day is a factor that a court may take

into consideration when determining whether an officer's suspicion was

reasonable; however, time of day is not suspicious in and of itself. Brown v. Texas,

443 U.S. 47, 53, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (concluding that

nighttime activity per se is not sufficient to create reasonable suspicion of criminal

activity); United States v. Cortez, 449 U.S. 411, at 420–21, 101 S.Ct. 690, 66

L.Ed.2d 621(pointing out that time of day may be a legitimate, yet marginal

consideration, in a reasonable suspicion analysis); Scott v. State, 549 S.W.2d 170

(Tex. Crim. App. 1976) (finding that time of day 1:30 a.m.-along with other

factors-high crime area and reports of hubcap thefts in the past, insufficient to

support reasonable suspicion); Gamble v. State, 8 S.W.3d 452, 453–54 (Tex. App.-

Houston [1st Dist.] 1999, no pet.) (invalidating a search when a detention was

based on a history of drug sales in the area, frequent calls for police assistance to

the area, and time of day, i.e., 3:00 a.m.); United States v. Jimenez–Medina, 173

F.3d 752 (9th Cir.1999) (finding factors of time of day, along with four other

factors, insufficient to support inference of reasonable suspicion).

         The evidence in this case is most similar to those at bar in Garza v. State2.

In that case this Court found that prior to the time he stopped appellant, the officer


2
    Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)

                                                9
had observed nothing to indicate that an offense was being committed or had been

committed and nothing to suggest that any illegal activity was about to take place.

In that case, the officer had received information through police channels was that

a person named Albert Garza, Jr., was “good for” burglaries such as those that had

occurred recently, and the officer had seen a mug shot of Garza and had received a

description, including the license plate number, of Garza's automobile. The officer

had also heard that Garza was a narcotics addict. However, this Court held that

“[t]he total information, then, was merely that appellant, a dope addict according to

a computer print-out, had been seen at some unspecified times in an area where

some unspecified burglaries had been committed at some unspecified times.”

Garza at 188.

       This court held in Garza that Garza’s detention, despite all of this other

evidence and knowledge of the officer, was improper, lacked reasonable suspicion

because the alleged suspicion was not supported by sufficient articulable facts.

       Also of note is an older Court of Criminal Appeals decision discussed with

the Garza opinion.         In Armstrong v. State3 the officer had received some

information concerning burglary suspects and a certain vehicle. The officer later

observed a car which matched the description he had, and the next day saw the

same vehicle, which then appeared to have been painted over with spray paint. The

3
  Armstrong v. State, 550 S.W.2d 25 (Tex. Crim. App. 1976) (opinion on state's motion for
rehearing, 1977).

                                              10
officer then conducted a stop, without having observed any violations or anything

suspicious. The detention was held to be “just the sort of fishing expedition the

Fourth Amendment and Article I, § 9 of the State Constitution, were designed to

prohibit.” Id. at 31; see also Leighton v. State, 544 S.W.2d 394 (Tex. Crim. App.

1976) (opinion on appellant's motion for rehearing, 1976) (defendant seen driving

a white Fiat that the officers believed was parked in front of a house that was

allegedly burglarized).

      In light of the precedents set by other Court of Appeals and the Court of

Criminal Appeals, the decision made by the Eastland Court of Appeals attempts to

resolve an issue of law contrary to the pre-established decisions regarding the issue

of reasonable suspicion prior to the warrantless seizure, and subsequent search, of

Brodnex. At no point did the officer ever articulate any fact that gave rise to his

belief, prior to seizing Brodnex, that he or the female he was walking with, were,

had been, or swill soon be engaged in criminal activity. As such, the seizure and

subsequent search of Brodnex was illegal, as it was not predicated upon proper

reasonable suspicion, and the holdings of the trial court and Court of Appeals

constitutes reversible error.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant requests that this

Court reverse the appellate court’s ruling and remand this case for further



                                         11
proceedings consistent with its opinion.


                                      Respectfully submitted,

                                      FIVECOAT & ROGERS, P.L.L.C.
                                      214 W. Texas Ave., Ste. 811
                                      Midland, Texas 79701
                                      (432) 620-8774 (Telephone)
                                      (432) 620-9945 (Facsimile)
                                      ray@fivecoatlaw.com




                                      Raymond K. Fivecoat
                                      State Bar No. 24010024




                                           12
                         CERTIFICATE OF SERVICE

      I hereby certify that, on this the 19th day of January, 2015, a true and correct

copy of the foregoing Brief of the Appellant was electronically filed of record with

the court, causing a copy to be forwarded electronically to all parties of record

registered for electronic receipt of said filings.    Additionally, a copy of said

document was forwarded by USPS to Ms. Teresa Clingman, c/o Ms. Carolyn

Thurmond, Midland County District Attorney, 500 N. Lorraine, Midland, Texas

79701, as well as Ms. Lisa C. McMinn, State Prosecuting Attorneys Office, P.O.

Box 13046, Austin, Texas 78711-3046. Additionally, I further certify that a copy

of this document has been served upon Ike Antyon Brodnex, via U.S. First Class

Mail to the last known address of Defendant-Appellant Ike Antyon Brodnex, TDCJ

No. 01771584, Smith Unit, 1313 County Road 19, Lamesa, Texas 79331.




                                       Raymond K. Fivecoat




                                         13
                       CERTIFICATE OF COMPLIANCE

      I hereby certify that this document was prepared using Microsoft Word and

according to the software’s word count program, contains words 3250 (counting all

parts of the document, including the accompanying proposed order, if applicable).

The body text is in 14 point font and the footnote text, if any, is 12 point font.




                                        Raymond K. Fivecoat




                                           14
