    PD-0556-15




Clerk of the Court of Criminal Appeals
          Supreme Court Bldg
      201 W. 14th St., Rm 106
           P.O. Box 12308
       Austin, TX 78711-2308




                      MAY 07 29|5
             In the Court of Criminal Appeals
                              of Texas



                        No. 11-14-00339-CR




           STACY DARNELL, Petitioner/Appellant

                                  V.


             THE STATE OF TEXAS, Respondent


    On Petition from the Eleventh Court ofAppeals, Eastland,Texas

                 Appellate Cause No. 11-14-00339-CR

On Appeal from the 35th District Court, Brown County, Texas Trial Court

                         Cause No. CR22692




                   STACY DARNELL'S PETITION

                  FOR DISCRETIONARY REVIEW




                                                                     Stacy Darnell

                                                       Petitioner/Appellant, pro se

                                                                          #1964522

                                                             James V. Allred Unit

                                                               2101 FM 369 North

                                                           Iowa Park, Texas 76367
                                    TABLE OF CONTENTS


                                                                                          PAGE

a) Table of Contents                                                                      2

b) Index ofAuthorities                                                                     4

c) Statement Regarding Oral Argument                                                           5

d) Statement of the Case                                                                   6

e) Procedural History                                                                      7

f) Grounds for Review                                                                      8

        1. The Court ofAppeals erred in dismissing Appellant's request for a

        free copy of record                                                                8

       2. The Court ofAppeals erred in dismissing Appellant's request for

        Appellant counsel to perfect appeal                                                    8

        3. The Court ofAppeals erred by dismissing appeal where that dismissal

        deprived Appellant of his right to appeal his criminal conviction and pre-trial

       errors that support conviction                                                          8

g) Argument and Authorities

        Ground 1                                                                           9

        Ground 2                                                                           9

       Ground 3                                                                           10

h) Prayer for Relief.                                                                      12

APPENDIX                                                                                  A-l

        Appendix Table                                                                    A-2

       Memorandum Opinion, Eleventh Court ofAppeals                                        A-3
                         TABLE OF CONTENTS (continued^




Appellant's Response Showing Grounds To Continue Appeal                             A-7

Defendants Motion for Examining Trial to Examine State's Probable Cause for on-sight arrest,
charges, and detention, and Moves for Dismissal of Charges                            A-13
to INDEX OF AUTHORITIES

United States Supreme Court:

           Evits v. Lucey. 469U.S.387.396Q985)                  10

           Pa. v. Finley. 481U.S.551.555(1987)                  10

Texas Court of Criminal Appeals:

            Menefee v. State. 287S.W.3d9.14nex.Crim.App.2009)   11

            Young v. State. 8S.W3d656.667(Tex.Crini.App.2000)   10

Texas Criminal Procedure:

            Art. 1.15                                           11

            Art. 44.02                                          10

Texas Rules ofAppellate Procedure:

            Rule, 20.2                                           9

            Rule, 68.4(f)                                        9
c) STATEMENT REGARDING ORAL ARGUMENT

     Oral argument is not requested.
d) STATEMENT OF THE CASE


        Appellant, STACYDARNELL, entered a plea of no contest to the offense of possession
of a controlled subsance in a drug-free zone. The trial court sentenced Appellant to thirty years
confinement in accordance with terms of state's plea agreement. Appellant did not sign waiver of
appeal, rather Appellant timely requested trial court's permission to appeal.

       The Court ofAppeals found that Appellant has no right of appeal in a plea-bargaining
case and dismissed the appeal without considerations ofAppellant's grounds for Appeal or
Appellant's requests for access to record and appointment of counsel to perfect appeal.
e) PROCEDURAL HISTORY

1) On March 6, 2015 the Memorandum Opinion for the Court ofAppeals of the Eleventh District
of Texas, in Eastland, Texas was handed down. (See Appendix at pg A-1 infra-Memorandum
Opinion.)

2) No motion for rehearing was filed.

3) An extension fo 60 days was granted to file Petition for Discretionary Review.
f> GROUNDS FOR REVIEW


1. The Court ofAppeals erred in dismissing Appellant's request for a free copy of the record.

2. The Court ofAppeals erred in dismissing Appellant's request for Appellant counsel to perfect
appeal.

3. The Court ofAppeals erred by dismissing appeal where that dismissal deprived Appellant of
his right to appeal criminal conviction and pre-trial errors that support conviction.
g) ARGUMENT AND AUTHORITIES

1. The Court ofAppeals erred in dismissing Appellant's request for a free copy of the record.

        Texas Rules ofAppellate Procedure, Rule 20.2 requires that the appellate record must be
furnished to Appellant. Here, Appellant gave oath of his indigence to the trial court and indicated
his inability to purchase copy of record by his request to the Court ofAppeals for a free copy of
the record, that request being made within the time for perfecting his appeal. (See Appendix, pg
A-9 infra, "Appellant's response showing grounds to continue Appeal" at 12.) Appellant has not
been provided access to record.

       The value of the record on appeal is and indispensable one. Appellant has no alternative
devices for citing errors on appeal, absent access to record. The Court ofAppeals has denied
Appellant his right to equal protection of the law by dismissing any considerations of his request
for copy of record. Thus, Appellant's appeal process has been impeded by lack of basic tools of
appeal such as access to the record.

          Despite Appellant's oath of indigence to the trial court and his request for record on
appeal, Appellant has not been provided access to record. Appellant's harm has now extended to
this petition for discretionary review where he is unable to meet the requirements of citations to
record in support of his grounds for review. (See Texas Rules ofAppellate Procedure, Rule 68.4
(f) "...the petitioner must..." refer to the page of the record where the matter complained of is
found.)

        The court should remand to court of appeals with instructions that Appellant be furnished
access to record, opportunity to perfect his appeal, and opportunity to present his grounds for
appeal supported by citations to record.

2. The Court ofAppeals erred in dismissing Appellant's request for Appellant counsel to perfect
appeal.

       Due process requires effective assistance of counsel during appeal. Evits v. Lucey. 469
US.387,396 (1985) The right to appointed counsel applies to first appeal of right. Pa. v. Finley.
481 U.S.551,555(1987)

       Appellant requested appointment of counsel to perfect appeal. (See pg A-9 infra, "
Appellant's response showing groundsto continueappeal" at 13.) Appellant has not been
provided withAppellant counsel. The Court of Appeals erred by dismissing appeal without
Appellant counsel or consideration of Appellant's requestfor Appellant counsel.

          This court should remand to Court ofAppeals with instructions to appoint Appellant
counsel to perfect appeal.
3. The Court ofAppeals erred by dismissing appeal where that dismissal deprived Apellant of his
right to his criminal conviction and pre-trial errors that support conviction.

        A defendant is any criminal action has the right of appeal. Texas Code of Criminal
Procedure, art.44.02. The statute places limitations on appeals where a defendant has been
convicted upon a plea of no contest and punishment is agreed to. In those cases he may appeal
any matter with trail court's permission or any matter raised by written motion filed prior to trial.
Texas Code of Criminal Procedure, art44.02. The statute has no provision for waiver of appellate
rights based upon plea-agreements.

        Appellant exercised his right of appeal. Appellant did not sign waiver of appeal, (see pg
A-5 infra, "Memorandum Opinion") rather, Appellants exercised his right of appeal by timely
notifying the trial court of his desire to appeal. The trial court did not oppose nor deny
Appellant's request for appeal. Appellant's notice of appeal was forwarded to the Eleventh Court
ofAppeals for consideration of appeal. Upon the Court ofAppeal's request, Appellant provided
Grounds for Appeal. (See pg A-8 infra, "Appellant's response showing grounds to continue
appeal".) Appellant presented several matters raised by written motion prior to trial such as:

               a) Motion to Examine State's Probable Cause...
and moves for dismissal of          charges. (See pg A-13 infra "Defendant's Motion for
Examining Trial to examine          state's probable cause for on-sight arrest, charges, and
detention, and moves for            dismissal of charges".);

               b) Pre-trial Habeas (C.R.); and

               c) Motion to Suppress (C.R.). (pg A-18 infra)

        If any one of the above pre-trial matters had been ruled favorable to Appellant the
judgment of guilt could not have occurred, thus, the judgment is supported by those pre-trial
matters presented as grounds for appeal. Those matters cannot be forfeited or waived on appeal.
Young v. State 8S.W.3d656,667 (Tex. Crim. App. 2000) (A valid plea of no contest may waive
or forfeit the right to appeal a claim of error only when the judgment of guilt was rendered
independent of the error.)

       The harm caused by those pre-trial matters are exasperated by the statutory requirement
       that:

               "...in no event shall a person charged be convicted upon his plea without sufficient
               evidence to support the same." Texas Code of Criminal Procedure art.1.15

Appellant's pre-trialmatters were specificto no evidenceof him ever being in possesion of any
controlled substance. (See pg A-17 infra, DARNELL [Appellant] was only a passenger in Clark's
vehicle; and pg A-19 infra, at IV. "Summary")Appellantopted to plea no contest to the chargeof
possesion of a controlled substance without expressly admitting the charges were true and
                                                 10
correct. The state failed to produce any evidence to support that the chages were true and correct.
The only support for the judgment of conviction is Appelant's plea of no contest which is not
tantamount to ajudicial confession sufficient to satisfy art.1.15. Menefee v. State 287S.W.3d9,
14(Tex.Crim.App.2009)

        By dismissing appeal the Court ofAppeals has violated Apeallant's statutory right to
appeal the above pre-trial matters which support the error of conviction. The court should grant
review to clarify the parameters of the stautory provisions above.




                                                11
                                 PRAYER FOR RELIEF




       Appellant prays that the court grant review to define the parameters of above statutory
provisions and/or remand with instructions to provide Appellant access to record, Appellant
counsel and opportunity to appeal.

       Respectfully submitted on this the 1st day of May, 2015.



                                                            X.
                                                                        T
                                                                                    Stacy Darnell

                                                                      Petitioner/Appellant, pro se

                                                                                       #1964522

                                                                            James V. Alfred Unit

                                                                             2101 FM 369 North

                                                                         Iowa Park, Texas 76367




                                               12
                               CERTIFICATE OF SERVICE

TRAP68.11


        This is to certify that on May 1,2015 a true and correct copy of the above foregoing
petition for Discretionary Review was served on:

               The District Attorney's Office,

                       200 S. Broadway

                       Brownwood, TX 76801

               and

               The State Prosecuting Attorney

                       P.O. Box 12548

                       Austin, TX 78711-2548

by first class mail, postage prepaid.




                                                         X


                                                                      *             Stacy Darnell




                                                 13
APPENDIX




       RECEIVED IN
     COURT OF CRIMINAL APPEALS
           MAY 07 2015

        AbelAcosta, Clerk
                                 APPENDTX TABLE


DOCUMENT          •               :                                            PAGE

MEMORANDUM OPINION, Eleventh Court ofAppeals                                   A-3
APPELLANT'S RESPONSE Showing Grounds to Continue Appeal                        A-7
DEFENDANT'S MOTION for Examining Trial to examine state's
probable cause for on-sight arrest, charges, and detention, and
moves for dismissal of charges                                '%:::             A-13
                                                                      •* >i<




                                            A-2
Eleventh Court of Appeals



MEMORANDUM OPINION




           A-3
                                                                             £lmL Hr-f^oir


    Opinion filed March 6, 2015




                                         In The



            detent!) Court of appeal*
                                  No. 11-14-00339-CR



                            STACY DARNELL, Appellant



                         THE STATE OF TEXAS, Appellee


                         On Appeal from the 35th District Court
                                Brown County, Texas
                             Trial Court Cause No. CR22692



                          MEMORANDUM                OPINION

          Appellant, Stacy Darnell, judicially confessed and pleaded no contest to the
    offense of possession of a controlled substance in a drug-free zone and pleaded
    true to the habitual-offender enhancement allegation.     The trial court assessed
    Appellant's punishment in accordance with the terms of his plea agreement in this
    case at confinement for thirty years. We dismiss the appeal.
          This court notified Appellant by a letter dated December 5, 2014, that we
    had received information from the trial court that Appellant waived his right of
*

                                              4-4-
                                                                                               LN-/-5"


*   appeal and that this is a plea-bargain case in which Appellant has no right of
    appeal. See Tex. R. App.P. 25.2(a)(2), (d). We requested that Appellant respond
    and show grounds to continue the appeal. Appellant has filed a response in which
    he asserts, among other things, that the State lacked probable cause, that he has a
    right to appeal, and that his guilty plea and waiver of appeal were not voluntary.
            Rule 25.2(a)(2) provides that, in a plea bargain case in which the punishment
    does not exceed the punishment agreed to in the plea bargain, "a defendant may
    appeal only: (A) those matters that were raised by written motion filed and ruled
    on before trial, or (B) after getting the trial court's permission to appeal." The
    documents on file in this case reflect that Appellant entered into a plea bargain;
    that his punishment was'assessed in accordance with the plea bargain; and that
    Appellant affirmatively, "voluntarily, knowingly and intelligently waive[d] [his]
    right to appeal." The trial court's certification was signed by Appellant's trial
    counsel and the judge of the trial court, and it reflects that Appellant^declinedjo
    sign.    The trial court certified that Appellant has no right of appeal.            The
    documents on file in this court support the...trial court's certification and show that
    Appellant waived his right of appeal. See Dears v. State, 154 S.W.3d 610 (Tex.
    Crim. App. 2005). Accordingly, we must dismiss this appeal without further
    action. Tex. R. App. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim.
    App. 2006).
            Accordingly, this appeal is dismissed.


                                                                PER CURIAM

    March 6, 2015
    Do not publish. See Tex. R. App. P. 47.2(b).
    Panel consists of: Wright, C.J.,
    Willson, J., and Bailey, J.

4

                                             AS
                                                                                       Hr-i-lS



+

                                 11 th Court of Appeals

                                    Eastland, Texas

                                        Judgment



     Stacy Darnell,                                 * From the 35th District
                                                      Court of Brown County,
                                                      Trial Court No. CR22692.


     Vs. No. 11-14-00339-CR                          * March 6, 2015

     The State of Texas,                            * Per Curiam Memorandum Opinion
                                                      (Panel consists of: Wright, C.J.,
^^                                                    Willson, J., and Bailey, J.)

          This court has inspected the record in this cause and concludes that the
     appeal should be dismissed. Therefore, in accordance with this court's opinion,
     the appeal is dismissed.




                                         A-6
              APPELLANT'S RESPONSE SHOWING



              GROUNDS TO CONTINUE APPEAL




                           A-7




<iS tfesa**
                                  Appellate Case Number: 11-14-00339-CR

                                    Trial Court Case Number: CR22691




    STACYALLEN DARNELL,                                §              IN THE COURT OF APPEALS
                     Appellant,                        §

    V-                                                                ELEVENTH DISTRICT

    THE STATE OF TEXAS,                                §

                     Appellee.                         §              OF TEXAS




           APPELLANT'S RESPONSE SHOWING GROUNDS TO CONTINUE APPEAL




A   TO THE HONORABLE COURT OF APPEALS:
           COMES NOW, STACYALLEN DARNELL, Appellant, andprovides this court with
    Appellant's Response Showing Grounds to Continue This Appeal.
             1. Appellant hereby exercises his right of appeal of a criminal action pursuant to the Texas
                Constitution and Texas Code ofCrim. Proa, Art44.02.

             2. Appellant's Guilty Plea and waiver ofappeal were not voluntary, knowing and
                intelligent

             3. Appellant did not knowingly and intelligently waive his entireappeal as part of a plea,
                hereJie received no consideration from the state for that waiver.

             4. The trial court abused its discretionin denyingAppellant's pre-trial motionsto order the
                state to show probable cause to support Appellant's search.-aad-seizure^rrestand
                continued detention,

             5. The trial court abused its discretion in denying appellant's pre-trial habeas corpus
                application showing the state had no probable cause to support searchjaacl-seizur&arre
                and continued detention ofAppellant                                                '

            6. Appellant's pre-sentencing waiver of the right to appeal wasnot binding at the
               punishment phase oftrialwhere the actual or maximum punishment hadnotyet been

                                                   10f4
         determined when the waiver was made, i.e., the waiver was not voluntary, knowingly
        and intelligent.

#    7. Simpleadmonishment ofthe range ofpunishment for the offensewas not enough to
        make the consequences of any waiverknownwith certaintywhere appellant was not
        admonished that he could be waivingany unanticipated errors that may occur, including,
        but not limited to, any challenges to state's probable cause.

     8. Appellanttimely filed his "Notice ofAppeal" as a "Request for Appeal" with the trial
        court The trial court has not opposed, nor denied, Appellant's request for an appeal,
        which controls over Appellant's previous waiver ofthe right to appeal. The court should
        allow Appellant to appeal despite the boilerplate waiver.

     9. The judgment of guilt was facilitated by, and supported by, the complained of errors
        such as but not limited to, the above challenges to state's probable cause.

     10. The substance ofthis appeal, no probable cause, was raised by written motion and
        refused by trial court before trial.

     11. Ajurisdictional defect has occurred where the statehas not shown probable causeto
        support the search, seizure, arrest detention and trial ofappellant

    -12. In conjunctionwith this appeal, Appellanthereby requests a free copy ofthe trial record.

     13. Appellant requests appointment ofAppellant counsel to perfect appeal.
#    14. Appellant did not voluntarily agree to any punishments.

    _15. Appellant's waiverofappeal was not madevoluntarily, knowingly and intelligently.
     16. At the time ofwaiver,Appellant had no certainty as to what punishment would be
        assessed.

    17. Appellant appeals the denial of his pre-trial suppression motion.

    18. Appellant appeals all matters that were raised by his written motions filed before trial.

    19. Appellant appeals the judgment of conviction ofthe trial court

    20. Appellant appeals the trial court's punishment of 30 years confinement as excessive for
        the charged offense ofpossession of trace amounts of a controlled substance.

    21. Appellant appeals the propriety ofhis conviction.

    22. Appellant appeals the propriety ofhis sentence.

    -23. Appellant hereby respectfully appeals his final judgment ofconviction.

    '24. Appellant has a timely and properly filed his notice ofappeal and he is therefore entitled
         to appeal.

                                           2 of 4




                                        /M
Respectfully submitted on this 20th day ofFebruary2015.
Court please note new address listed below.




                                   X.         fe<^ (J&htt /y/ZAsis-Jij'Y
                                    Stacy Allen Darnell
                                    Appellant, pro se
                                    TDCJ#1964523
                                    James V. Allred Unit
                                    2101 FM 369 North,
                                    Iowa Park, TX 76367




                                        3 Of 4
                                  CERTIFICATE OF SERVICE




       L Stacy Allen Darnell, Appellant, declare under penalty of perjury thata trueandcorrect copy

of the above hasbeenserved on state's attorney, Michael Murray, District Attorney, Brown County

Courthouse, 200South Broadway, Brownwood, TX76801 by United States mail, postage prepaid.




                                                  Stacy Allen Darnell
                                                  Appellant, pro se
                                                  TDCJ#1964523
                                                  James V. Allred Unit
                                                  2102 FM 369 North
                                                  Iowa Park, TX 76367




                                              4 of 4
                                                                                                                               ^1-/5"
                                                                                                               FILE COPY




4
    JIM R. WRIGHT
     CH1EFJUSTICE
                                                      Court of Appeals                                    SHERRY WILLIAMSON
                                                                                                                    CI.F.RK


                                                   Eleventh District of Texas                                TELE: 254/629-2638
    MIKE WILLSON
     JUSTICE                                          100 WEST MAIN STREET, SUITE 300                        FAX: 254/629-2191
                                                               P.O. BOX 271                             sherry.williamson@txcourts.gov
    JOHN M. BAILEY
     JUSTICE                                              EASTLAND, TEXAS 76448                           www.txcourts.gov/llthcoa

                                                          February 25, 2015

                Stacy Allen Darnell                                   Perry B. Sims
                                                                      Law Office of Perry B. Sims
                John Middleton Unit                                   P.O. Box 3100
                    13055 FM 3522                                     Early, TX 76802
                Abilene, TX 79601                                     * DELIVERED VIA E-MAIL *


                Michael Murray, District Attorney
                Brown County Courthouse
                200 South Broadway
                    Brownwood, TX 76801
                    * DELIVERED VIA E-MAIL *


                    RE:    Appellate Case Number: 11-14-00339-CR
                           Trial Court Case Number:    . CR22692 .
                    Style: Stacy Allen Darnell
                           v. The State of Texas


                           We have this day received and filed Appellant's response showing grounds to continue
                    appeal in the above cause.

                                                                                  Respectfully yours,

                                                                                                                          &



                                                                                  Sherry Williamson, Clerk

                    cc:   Cristi Escobar, Court Reporter (DELIVERED VIA E-MAIL)
                          District Clerk - Brown County - CV (DELIVERED VIA E-MAIL)
                          Stephen Ellis, Judge (DELIVERED VIA E-MAIL)




*
                                                                  -I3L
 DEFENDANT'S MOTION FOR EXAMINING TRIAL TO


 EXAMINE STATE'S PROBABLE CAUSE FOR ON-SIGHT


ARREST, CHARGES, AND DETENTION, AND MOVES FOR

            DISMISSAL OF CHARGES




                     A-13
                                                                                        ExkiU-T*4-
                                     Cause No.



•   THE STATE OF TEXAS                                            § IN THE 35th JUDICIAL
    V.                                                            § DISTRICT COURT
    STACY ALLEN DARNELL,                                          § BROWN COUNTY, TEXAS
    defendant



         DEFENDANT'S MOTION FOR EXAMINING TRIAL TO EXAMINE STATE'S PROBABLE
          CAUSE FOR ON-SIGHT ARREST, CHARGES, AND DETENTION, AND MOVES FOR
                                          DISMISSAL OF CHARGES.



    COMES NOW, STACY ALLEN DARNELL, detendant, and moves for Examining Trial to examine
    state's probable cause for stop, search, arrest, charges, and continued detention of defendant. In support
    shows:



    I.       PROCEDURAL POSTURE



                    1. On August 9,2013 Darnell was arrested and charged with Possession of Substance
             PG1, <lgram(Possession of a Substance in Perialty Group 1, less than lgram) Drug-Free Zone,
             Felony 3 Degree.
                    2. Darnell was detained and remains in custody at the Brown County Detention Center.
                    3. Darnell's bail was set at $60,000.00, an amount in excess of Darnell's financial
             capabilities. Darnell remains in custody.
                     4. No indictment has been issued against Darnell. No probable cause has been
             established by the Grand Jury to bring Darnell to trial on the above charges.
                     5. Darnell hereby, and formally, requests that the court give Darnell an opportunity to be
             heard and Examine the State's Probable Cause for stop, search, on-sight, arrest, charges, and
             continued detention of Darnell. Darnell moves for, and requests, that the court schedule an
             Examining Trial within 90 days for the purpose of Examining State's Probable Cause tor stop,
             search, on-sight arrest, and continued detention of Darnell, and moves for dismissal of charges.



    II.      HISTORICAL FACTS/SUMMATION OF STATE'S PROBABLE CAUSE


                    The following is a summation of facts excerpted from Police; "Probable Causefor on-
             sightarrest" (attached^hereto in its entiretyand marked as Exhibit #1).

                    OnAugust 9,2013, Investigator Grover received information from a confidential

                                                    Page 1 of 6


                                                    A-\H-
             informant (CI) that CHANCE CLARK, STACY DARNELL [and two non-pertinent
             females] were using and distributing methamphetamine at the Classic Inn Motel room
             #143. Police conducted surveillance. Two males left motel in a Dodge vehicle. Gover
             followed the Dodge. On Avenue J the driver of the Dodge failed to signal, pulled over to
             the right of the road and stopped. Gover initiated emergency lights and conducted a
             traffic stop. Passenger STACY DARNELL exited the vehicle. The driver was identified
             as CHANCE CLARK. CLARK had an unlit cigarette in his hand, was nervous, his voice
             trembling, as he fumbled for his license. CLARK gave consent to search his vehicle
             [Dodge].
             Investigator Stroope arrived on scene and assisted with search. Stroope found a plastic
             baggie containing methamphetamine in between the cellophane and bottom exterior of a
             Marlboro cigarette pack which was found in the center console of CLARK's Dodge
             vehicle.

             CLARK and DARNELL were arrested for possession of a substance in penalty group
             one less than one gram. A field test showed a positive reaction for the characteristics for
             methamphetamine. The baggie was weighed via a digital scale. The total weight was
             0.25grams. The arrest location was within 1000 feet of Coggin Park which is located at
             2001 Austin Avenue. (See Exhibit #1, probable cause for on-sight arrest" attached
             hereto).


DT.  DEFENDANT'S PROFERED POSISTION AND EXAMINATION ARGUMENT FOR
DISMISSAL OF CHARGES



             The Police rely upon non-confirmed information from a non-credible CI as a triggering
     event, regarding a motel room, not any vehicle, then describes CHANCE CLARK as a driver
     and owner of a Dodge vehicle that "fails to signal" when stopping (not turning, nor changing
     lanes) on a residential street. (No allegations of brake light malfunctions, the only traffic
     requirement for coming to a stop on a residential street, were made.) No citation for failing to
     signal was issued, and no other probable cause was proffered for conducting a traffic stop on a
     vehicle which had already stopped.
             DARNELL was observed to be a passenger only and no descriptions are given to
     contradict that Darnell was sober, drug-free, non-nervous, and in fact exited the vehicle to
     initiate contact with police.
              CHANCE CLARK gave police consent to search his vehicle. No descriptions of Gover's
   • initial search are given. Stroope's subsequent arrival and search is non-descriptive as well other
     than an allegation of a baggie containing methamphetamine (no other description is given)
     being found in a cigarette pack in the console of CLARK's vehicle. No other drugs nor any
     paraphernalia is found. No drugs nor any paraphernalia is found on DARNELL'S person.No
     evidence of drug use is found on DARNELL'S person. The drugs were not in plain sight(only
     Stroope's subsequent search located the baggie) but concealed in a console of CLARK's
    vehicle.              ,
           a. Confidential Informant (CI)
            DARNELL requests the opportunity to challenge credibility, through examination, of CI


                                             Page 2 of6



                                               fr-\$
and any alleged CI statements Police rely upon for probable cause. DARNELL moves to
suppress any' CI allegations that Darnell is not given opportunity to examine through
questioning of CI      -
      DARNELL offers the following to support necessity ofhis examination of CI:
             Police rely upon CI for Probable Cause based upon August 9,2013 information
      from CI. DARNELL was arrested at 1 p.m. on August 9,2013 (same day). However, no
      time is given as to what time on that day the CI gave information to police (before or
      after arrest). Police do not indicate who or how contact with CI was initiated and for
      what reasons, motives, or benefits to CI.
             CI give&flo details of drug use; How did CI know it was a methamphetamine?
      How much methamphetamine was allegedly being used? How was methamphetamine
      being used/ingested? For how long? (days? Hours?) What drugs and paraphernalia were
      allegedly being used? Where are the drugs and paraphernalia mat were allegedly being
      used? Are there any physical marks on subjects to-support CI's alleged ingestion/use
      methods? What are the details of alleged methamphetamine distribution? Does CI have
      any personal knowledge? Did CI purchase any methamphetamine from subjects? Why
      or why not? Who specifically was distributing? How did you or police identify subjects?
      What size quantities and at what cost?
          What did CI personally observe, specifically, if anything, that connects
      DARNELL to any drugs?
            Where are these alleged drugs and drug money from this alleged
      methamphetamine distribution ring?
      DARNELL intends to show: that DARNELL had no involvement with any drugs
      whatsoever; police surveillance was police acting on a hunch; police have no
      surveillance recordings of any drug activity involving DARNELL; no drug traffic was
      documented and no drug arrest had been associated with DARNELL before the arrest of
      DARNELL himself: Police never observed any drug use, drug activity, nor anything
      drug-related that can be associated with DARNELL; DARNELL was not specifically
      identified by CI nor Police, based upon CI descriptions; the CI's information regarded a
      motel room (#143) NOT DARNELL having any drugs in any vehicle. The information
      proffered or alleged by the CI is not credible nor relevant to DARNELL being^a
      passenger in CLARKS's vehicle.
             The Police do not indicate who initiated contact, Gover or CI. Police do not give
      any time place or reasons for CI coming forward. Wasthis CI paid by Police? Was CI
      acting under previous direction ofPolice? Was CI information given at random? Was CI
      information based upon personal observances? Or was information speculative? Whaf
      was CI's information not sufficient or credible enough to seek a search warrant for the
      motel room that the CI had referenced? Why did Police not seek a search warrant for the
      motel room (#143)?
             "If the Police had a credible and reliable reason to believe that dangerous drugs
      werebeing usejd and sold in motel room #143, Police would havesought a search
      warrant for that motel room. However, that was not done, which reveals a profound
      weakness to the CI that Police rely upon as their basis for probable cause for arrest of
      DARNELL. Darnell requestsopportunity to examineCI, CI statements, and any CI

                                      Page 3 of6


                                       A-\y
       information Police or State expect to rely upon to support probable cause for the arrest,
       charges, and continued detention of DARNELL, and Darnell moves to suppress
       anything he is not given opportunity to examine antl dismiss charges linked to CI.
       b. Traffic stop
       Despite the modern day use of video recorders by Police, which purportedly ensure that
proper Police procedure has been followed, Police cannot produce antf video recording that
supports the probable cause for the traffic stop that led to the arrest of DARNELL. However,
the undisputed facts show that Police did not initiate the stop of CLARK's vehicle and the
Police had no probable cause to stop behind CLARK's previously stopped vehicle and detain
DARNELL nor to arrestDARNELL.
       The "probable cause" chronology for the traffic stop states: "On Ave J the driver ofthe
charger [Dodge] failed to signal, pulled over to the right of the road and stopped. I initiated my
emergency lights and conducted a traffic stop." (See Exhibit #1.)
       There is no video evidence iat the driver, CLARK, failed to signal. CLARK was not
issued any citation for failing to signal. Avenue J is a residential street, not having multiple lanes
nor shoulders. Turn signals are required prior to lane changes and turns, not stops on residential
streets. The driver, CLARK, did not and could not make any lane change as Avenue J is a very
narrow residential street. CLARK did not make any turns. He simply stopped his vehicle on a
residential street which does not require a turn signal. Police had no probable cause for a traffic
stop, even if Police had initiated a stop which they did not. The "probable cause" report reveals
that it was the driver who had stopped "before" Police (GROVER) initiated emergency lights.
Police had no probable cause to pull up behind CLARK's parked Dodge and detain DARNELL,
a passenger, who had already exited the Dodge before Police began any traffic stop procedure.
        DARNELL has shown that Police had no probable cause to conduct any traffic stop nor
to detain and arrest him. No Police video of any failure to signal exists, no citations were issued
to CLARK for failing to signal, and no turn signal is required to stop on a residential street that
has no multiple lanes or shoulders. If necessary, DARNELL is prepared to present evidencemat
Grover and Police have a history of falsely alleging turn signal failures to justify traffic stops.
Also, the stop cannot be justified by CI information when the CI never made any referenceto
the Dodge vehicle that was the subject ofthe traffic stop. DARNELLmoves for dismissalbased
on no cause for stop and detention of DARNELL.                                             >
       c. Search
    DARNELL moves to examine the next chronological event, the search conducted of
CLARK's vehicle and search of DARNELL'S person.
    DARNELL seeks to examine any probable cause or proffered consent to search
CLARK's vehicle as a measure to show that any drugs found as a result of the search of
CLARK's vehicle cannot be linked to DARNELL, as DARNELL was only a passenger in
CLARK's vehicle.
       DARNELL reservesthe right to challengewhetherCLARKsigned any consent to
search form for police or whether CLARK voluntarily gave consent to search his vehicle.
       According to the"probable cause" (Exhibit #1), Gover obtained consent from CLARK
to searchCLARK's Dodge. Gover began searchbut doesnot specifywhere, when, and how
long, orwhat he searched (console area ornot?). Police do not indicate why Stroope was called

                                        Page 4 of6


                                            A-n
to search CLARK's Dodge again after Gover had searched the Dodge. Stroope's subsequent
arrival and search finds a baggie of methamphetamine, but does not describe methamphetamine
(powder, powdery, white, liquid, clear, crystal, watery, etc.-?); does not describe baggie (clear,
size, color, style, weight, etc.?); does not describe cigarette pack (box, soft pack, regular,
menthol, lights, etc.?); does not describe center console or where in center console (on top of or
beneath other item? if so what other items?); does not describe whether cigarette pack
containing baggie was concealed or why Gover was unable to find baggie during his search of
CLARK's Dodge.
        The baggie of methamphetamine was not found in plain sight, and it was not discovered
in passenger area of vehicle where DARNELL was a passenger, rather, it was found concealed
in the console in proximity to driver, CLARK.
        No Police officer ever witnessed DARNELL possess any drugs. A search of
DARNELL'S person revealed no drugs, no paraphernalia used for ingesting drugs, no evidence
of prior drug use such as burns or needle marks and no drug money was found on DARNELL'S
person. Nothing resulting from the search of CLARK's Dodge can be linked to DARNELL,
who was only a passenger in CLARK's Dodge.
       If it took several police officers to conduct several consecutive searches of CLARK's
vehicle to discover one small baggie in proximity to the driver (CLARK), it cannot be assumed
that DARNELL had any awareness of the small baggie found in CLARK's Dodge. DARNELL
was only a passenger, and as such, knowledge cannot be inferred to DARNELL. DARNELL
moves for dismissal based on illegal search.
       d. Drugs, Possession thereof
       No lab has found actual methamphetamine (field test found "characteristics") and no
weight has been measuredon any certified scales of alleged drugs with or without baggie.
According to Police, CHANCE CLARK is the driver and owner of the Dodge that the
methamphetamine was found in. Under the law, Clark is the legal possessor of his vehicle and
all of its contents, and it cannot be inferred that a passenger, such as DARNELL, has possession
of drugs found concealed in CLARK's vehicle where nothing links DARNELL to those drugs.
       DARNELLwas a passenger only.Nothing that could be associated with drugs or drug
use was found on his person. There is not any link between DARNELL and the small baggie of
methamphetamine allegedly found in CLARK's Podge.
       Only CLARK, the-driver, owner, and "possessor" of vehicle-is described as trembling,
nervous, and fumbling. DARNELLwas cairn, not-worried, sober, and had full function of ail of
his mental faculties. Police do not state ^otherwise. DARNELL is a passenger only, whom the
law recognizes as not being in possession of contraband contained in other persons' vehicles. No
paraphernalia used for using/ingesting drugs was found. Thereis no connection between
DARNELL and drugs, CI or otherwise, that exist linking DARNELL to methamphetamine
allegedly found in CLARK's Dodge.
       DARNELL is prepared to present evidence that at the time ofhis arrest, he voluntarily
submitted a urine sample to Police for druganalysis. The results ofthat analysis were negative,
conclusive evidence that DARNELL had not been using any drugs prior to his arrest.
       The court will also hear that CLARK, the driver, owner and possessor ofthe Dodge was
found to have methamphetamine in his system at the time of DARNELL'S and CLARK's arrest.


                                       Page 5 of6


                                           A-\&
              There exist absolutely no connection to any drugs, nor any drug use, by DARNELL, that
      could be used to support probable cause for his arrest, drug possession charges, and continued
      detention. DARNELL moves for dismissal of charges.
             e. Drug-Free Zone
              The probable cause gives 2001 Austin Avenue as the physical location of Coggin Park
      and alleges that DARNELL was arrested within 1000 feet of that address. However, the
      probable cause does notgive any physical location ofJflw&xactly DARNELL was arrested. It
      only states "on Ave J" somewhere by 1st Street. Without a physical street address of exactly
      where the arrest took place, Police deprive DARNELL of any specific measuring points for
      DARNELL to use to show that he was not within 1000 feet of Coggin Park. When the police
      allege that DARNELL is within 1000 feet of Coggin Park and do not cite the physical locations
      of point to point measurements, police forfeit that allegation because it deprives DARNELL of
      any ability to make his own measurements in Defense. DARNELL moves that the court dismiss
      the Drug-Free Zone enhancement.
             f. Probable Cause Not Proper in Form
             Lastly, the probable cause for on-sight arrest is not proper as it is not notarized.


IV.   SUMMARY
             Police rely upon a non-credible informant as a triggering event for probable cause,
      conduct an invalid vehicle stop on a vehicle not referenced by CI; then, several officers conduct
      consecutive searches, no specifics nor any descriptions are given, and drugs are allegedly found
      concealed in CLARK's Dodge; DARNELL is only a passenger who has no links whatsoever to
      the drugs found, nor any links to any drug use, and CLARK is found to have methamphetamine
      concealed in his Dodge and in his system at the time of arrest. The court should grant
      DARNELL and Exarnining Trial and/or dismiss the charges against him.


V.    PRAYER
             WHEREFORE PREMISES CONSIDERED, DARNELL prays that the Honorable Court
      grant him and examining trial and/or dismiss the charges against him.

                                                            Respectfully submitted.




                                                            Stacy Allen Darnell
VI.   CERTIFICATE OF SERVICE
             I, StacyDarnell, declarethat a true and correct copy of theToreeome has beenserved on
      States Attorney for Brown County, TX on this the &p day of gnntitwW^z013.

                                                            KJA
                                                            Stacy AlleiTDarnell


                                              Page 6 of 6


                                                   A-n
Y                                                                                               E^l^X
                      PROBABLE CAUSE FOR ON-&GHT ARREST

        PfcFENDANT NAME: STACY ALLEN DARNELL DOB: 08-19-1972

       OUTENSE ARRESTED FOR:

       goss ofSub PG 1< 1gram Drug Free Zone Felony 3 Degree
!      The above named Defendant was arrested for the offense listed above on the 9Day
       ofAugust 2013, at 1:00 o'clock rj.m.                                                   Probable
       cause for this on-sight arrest is based on the following:                               I,
      Carlyle Gover, aPeace Officer for the State ofTexas. Brown County, do
      hereby state that:

      Oa August 9,20131 mvestipatarGover received informationfiofn aconfidenrial mfhtmant fCDthat
      CHANCECLARK. STACYDARNEri. VJ^^Phfllm^andKri^ram^
      Oa^IimMctelroom#143.TlreCladvL<^tha
      distributing methamrfietaminefh^
      ok^ed two males amitvynfi^lrepigx^
     white DodgeOiarggdisplaying? temporarytag'                 jSfc Guthrie andIfollowed the Dndpe
     Cl3agertoseverdkxaD«ismEarfr&^^
     Chan»erfailedto signal, pulled overtotherightofiheroadand stonedIinitiatednivemergercv lights
     fflKJconductedatrafScstop. The solepassengerSTACTDARr^lexitedthe vehiclevWnS m.mlipht
     e»ga"^mhis liand Icontactedthe <inre                                                                 .^
                                                                                                          /%
     jmi^ciggretteinliishatKia^RKv^                                                                       -
     hefiimpledf()rluslKx^.ia<fceda»lCTAm
     am^onsc^neaiKlassistedwahtheseat^.Inv.Stroonefa
     njeftainphetamme.Ttepkstfc^                                          bottom exteriorofaMarlhom
     cigarette pack Thecigarette wasfound inthecenterconsole. CTAttfC andDART^ J TO^imT>cfev^
     Pttssesacmofa substancemr*gafrygto^
     was testedvMapresmtriyemethmiiDhetam^
    -cfaaractenst.es formethatnphetamtne. The baggie «nd methamphetafhine were laterweighed via aHiatal
    ^andtbetofalv^gfatvvas^                     1000feetofCogomP^ ^hw,
    is locatedat2001 Austin Ave FnH nftqvg-               ^^
    All ofabove occurred inBrown County, Texas.
    AGAINST THE PEACE AND DIGNTriTY OFTHE STATE

                                                       AFFIANT

            SWORNTOANDSUBSCKIBEDBEFOREMEBY                            (<\f W
    CREDIBLE PERSON, ON THE °) DAY OF j^uGUST                                 20^3.
    PEACE OFFICER
                                                               NOTORYFUBLIC,BROWNCOUNTY, TEXAS


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