                                                                                           ACCEPTED
                                                                                       12-15-00043-CR
                                                                          TWELFTH COURT OF APPEALS
                                                                                        TYLER, TEXAS
                                                                                 9/25/2015 12:01:48 AM
                                                                                             Pam Estes
                                                                                                CLERK

                        Cause No. 12-15-00043-CR

                                                                     RECEIVED IN
                                                               12th COURT OF APPEALS
                                                                    TYLER, TEXAS
                     In the Court of Appeals for the
                                                               9/25/2015 12:01:48 AM
                  Twelfth Judicial District at Tyler, Texas           PAM ESTES
                                                                        Clerk



                                Miko Parks,
                                 Appellant

                                     v.                       9/24/2015

                              State of Texas,
                                 Appellee



             On Appeal from Cause No. 2014-0129 in the 159th
             Judicial District Court of Angelina County, Texas



                               State’s Brief



                                          April Ayers-Perez
                                          Assistant District Attorney
                                          Angelina County D.A.’s Office
                                          P.O. Box 908
                                          Lufkin, Texas 75902
                                          (936) 632-5090 phone
                                          (936) 637-2818 fax
                                          State Bar No. 24090975
                                          aperez@angelinacounty.net

Oral Argument Not Requested
                         Identity of Parties and Counsel

Miko Parks, Appellant

T. Ryan Deaton
Attorney for Appellant (trial and appeal)
103 E. Denman
Lufkin, Texas 75901
SBN: 24007095

Katrina Carswell
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 10482700

April Ayers-Perez
Attorney for the State (appeal)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 24090975




                                            ii
                                                 Table of Contents

Identity of Parties and Counsel ................................................................................. ii

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

Index of Authorities ................................................................................................. iv

Statement Regarding Oral Argument........................................................................ v

Issue Presented .......................................................................................................... v

Statement of Facts ..................................................................................................... 1

Summary of the Argument........................................................................................ 3

Argument .................................................................................................................. 4

         Reply Issue #1: The appellant voluntarily consented to the search of
         the apartment .................................................................................................. 4

                   Applicable law ...................................................................................... 4

                   Standard of Review .............................................................................. 5

                   The Totality of the Circumstances Favor Voluntary Consent .............. 5

Prayer ........................................................................................................................ 5

Certificate of Compliance ......................................................................................... 6

Certificate of Service ................................................................................................ 6




                                                               iii
                                            Index of Authorities

Cases                                                                                                            Page

Boyle v. State, 820 S.W.2d 122 (Tex. Crim. App. 1989) .......................................... 5

Harrison v. State, 205 S.W.3d 549 (Tex. Crim. App. 2006) .................................... 6

Juarez v. State, 758 S.W. 2d 772 (Tex. Crim. App. 1998) ....................................... 5

Maryland v. Macon, 472 (Tex. App. – Houston [1st Dist.] 2002)............................ 5

Keehn v. State, 279 S.W.3d 330 (Tex. Crim. App. 2009)......................................... 5

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2006) ..................................... 5

State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2009) .......................................... 5

U.S. v. Pena, 143 F.3d 1363 (10th Cir. 1998) ............................................................ 6


Rules

Tex. R. App. P. 9.4(i)(1) ........................................................................................... 6

Tex. R. App. P. 39.1................................................................................................. vi




                                                          iv
                     Statement Regarding Oral Argument

      Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is

unnecessary, as the facts and legal arguments are adequately presented in the briefs

and record and the decisional process would not be significantly aided by oral

argument.

                                 Issue Presented

      Reply Issue #1: The appellant voluntarily consented to the search of the

apartment.




                                         v
                                                                                                                                                                                                                                                    Statement of Facts

                                                           On July 31, 2013 Agent Greg Shroeder, Agent Doug Cortinez, and Agent

Myles Holland of the Texas Department of Public Safety performed a “knock-and-

talk” at the High Pointe Apartments in Lufkin, Texas.1 Prior to the “knock-and-

talk”, Agent Shroeder was contacted by officers from the Center, Texas Police

Department in reference to a confidential informant who had information regarding

narcotics trafficking in Lufkin, Texas.2 The informant referred to the suspect as

“Black the Beast”.3 The Center Police Department verified that this informant had

been used by their department in the past and all information provided by this

informant had been found to be true and correct.4 The informant stated where the

apartment complex was, and identified some items of the defendant such as the

vehicle the defendant was driving.5 Agent Shroeder then ran a computer check on

the vehicle, found the registered owner, who was Miko Parks, and commissioned a

photo lineup with Parks in it.6 On July 30, 2013 Agent Shroeder met with the

confidential informant and showed the photo lineup to the confidential informant,

who picked Parks out of the lineup.7 The next day, July 31, 2013, Agent Shroeder,

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
  II R.R. at 9-10.
2
  Id. at 10.
3
  Id.
4
  Id. at 11.
5
  Id. at 12.
6
  Id.
7
  Id.
                                                                                                                                                                                                                                                            1
Agent Cortinez, and Agent Holland performed a “knock-and-talk” at the apartment

in question.8 Upon Agent Shroeder knocking, Parks opened the door fully.9 Agent

Shroeder then proceeded to ask Parks if the vehicle that the informant had

previously identified, a black Dodge Challenger, was his.10 Parks then looked

outside the door, into the parking lot, and affirmed that the vehicle did belong to

him.11 At that point Agent Shroeder pulled out his badge, identified himself as a

law enforcement officer to Parks, and idenitified that he was there at the apartment

investigating a narcotics complaint.12 Agent Shroeder noticed a strong smell of

marijuana emitting from the apartment.13 Agent Shroeder noticed that a woman,

later identified as Magin Watts, was sitting on the couch, and within arms length

was a loaded pistol.14 Watts was so close to the door that she was able to hear the

entire conversation between Agent Shroeder and Parks.15

                                                           After explaining the fact that they were investigating a narcotics complaint,

Agent Shroeder asked Parks if he could enter the apartment to discuss it further.16

Parks granted consent to enter.17 At no point did either party, Parks or Watts,

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
8
  Id. at 15-16.
9
  Id. at 21.
10
   Id.
11
   Id.
12
   Id. at 22.
13
   Id.
14
   Id. at 23-24.
15
   Id. at 26.
16
   Id.
17
   Id. at 27.
                                                                                                                                                                                                                                                    2
provide any resistance to the law enforcement officers coming in, nor did they

protest.18                                                                                                At this point Agents Cortinez and Holland had come up from the

stairwell under the apartment and also entered the apartment.19 Agent Shroeder

desribed the situation as not being tense, nothing aggressive from any party, and no

weapons drawn.20 Further, had Parks or Watts not granted consent the Agents

would have left the hallway outside the apartment and applied for a search

warrant.21 Upon entry into the apartment, Agent Holland noticed a jar on the

kitchen counter with a green leafy substance in it.22 After noticing the jar with

marihuana, the cabinet doors in the kitchen were wide open revealing two ziploc

bags that contained what appeared to be raw marihuana.23

                                                           At this point Agent Shroeder placed both Parks and Watts under arrest.24

Parks refused to answer any further questions after being placed under arrest,

however Watts signed a consent form for the Agents to search the apartment.25

                                                                                                                                                                                                                                                    Summary of the Argument

                                                                                                                      Law enforcement officers with the Texas Department of Public Safety

took place in a “knock-and-talk” at the residence of the appellant and his co-
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
18
   Id. at 30.
19
   Id. at 27.
20
   Id. at 27-28.
21
   Id. at 30.
22
   Id. at 37-38. See State’s Exhibit 9.
23
   Id. at 40-41.
24
   Id. at 42.
25
   Id. at 42-43.
                                                                                                                                                                                                                                                               3
defendant on July 31, 2014 after receiving a tip of drug sales at the residence of

appellant and his co-defendant.                                                                                                                                                                                                                      The appellant gave consent for the law

enforcement officers to enter the apartment, at which point marihuana was in plain

view of the officers. The totality of the circumstances, when viewed in the light

most favorable to the trial court’s ruling, show that the consent the appellant

granted law enforcement to search the apartment was voluntarily given.

                                                                                                                                                                                                                                                    Argument

                                                           Reply Issue #1: The appellant voluntarily consented to the search of the

apartment.

                                                                                                                                                                                                                                                    Applicable law

                                                           A person commits an offense of possession of marihuana, as defined in the

Health and Safety Code Section 481.121, if the person knowingly or intentionally

possesses a usable quantity of marihuana.26 An offense under this section of the

Health and Saftey Code is a felony of the third degree if the amount of marihuana

possessed if fifty (50) pounds or less but more than five (5) pounds.27

                             The Fourth Amendment of the United States Constitution is as follows:

                                                           The right of the people to be secure in their persons, houses, papers and
                                                           effects against unreasonable searches and seizures, shall not be violated, and
                                                           no warrant shall issue, but upon probable cause, supported by oath or


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
26
                    Tex. Health & Safety Code § 481.121.
27
                    Id.
                                                                                                                                                                                                                                                       4
                                                           affirmation, and particularly describing the place to be searched, and the
                                                           persons or things to be seized.28

                             Likewise, the Texas Constitution reads as follows:

      The people shall be secure in their persons, houses, papers and possessions,
from all unreasonable serizures, and no warrant to search any place, or to seize any
person or thing, shall issue without describing them as near as may be, nor without
probable cause, supported by oath or affirmation.29

                             An object can be seized if it is seized under the plain view exception to the

warrant requirement.30 The three requirements for seizure under the plain view

doctrine are: (1) law enforcement must lawfully be where the object can be

“plainly viewed”, (2) the “incriminating character” of the object in plain view must

be “immediately apparent” to the officials, and (3) the officials must have the right

to access the object.31

                                                                                                                                                                                                                                                    Standard of Review

                                                           A trial court’s ruling on a motion to suppress is reviewed in a light most

favorable to the trial court’s ruling.32 The courts will review the totality of the

circumstances of any particular interaction between law enforcement and citizens

from the point of view of the objectively reasonable person, without regard for the



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
28
   U.S. Const. amend. IV
29
   Tex. Const. art. I §9.
30
   Keehn v. State, 279 S.W.3d 330, 334 (Tex.Crim.App. 2009).
31
   Id.
32
   State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006).
                                                                                                                                                                                                                                                            5
subjective intents or thoughts of either the citizen or law enforcement.33 Consent is

an exception to the warrant requirement and is valid when it is voluntarily given.34

Voluntariness is such a fact intensive question that the trial court’s finding will be

accepted unless it is clearly erroneous.35 The State must prove the consent was

obtained voluntarily by clear and convincing evidence.36 The courts will determine

whether or not consent was voluntarily given, and not the result of duress or

coercion, by a totality of the circumstances.37 If a trial court has not made explicit

findings of fact the appellate court will imply fact findings that will support the

trial court’s ruling as long as the evidence will support those implied findings.38

                                                                                                            The Totality of the Circumstances Favor Voluntary Consent

                                                           Some of the factors to be considered in determining the voluntariness of

consent are: physical maltreatment, use of violence, threats, threats of violence,

promises or inducements, deception or trickery, and the physical and mental

capacity of the defendant.39 The appellant and the law enforcement officers have

vastly different versions of how consent was obtained in this circumstance.


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
33
   Meekins v. State, 340 S.W.3d 454, 459 (Tex.Crim.App. 2011) (quoting Maryland v.
Macon, 472 U.S. 463, 470-71 (1985)).
34
   Harrison v. State, 205 S.W.3d 549, 552 (Tex.Crim.App. 2006).
35
   Juarez v. State, 758 S.W.2d 772, 781 (Tex.Crim.App. 1998) overruled on other
grounds by Boyle v. State, 820 S.W.2d 122 (Tex.Crim.App. 1989).
36
   Harrison, 205 S.W.3d at 552.
37
   Id.
38
   Kelly, 2014 S.W.3d at 818.
39
   United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998).
                                                                                                                                                                                                                                                    6
According to the appellant, the law enforcement officers said “I smell it, let’s go”

in reference to the odor of marihuana emitting from the apartment.40 However, all

three law enforcement officers testified that not only was valid consent granted,

there was no tension at the time of entry into the apartment.41 While the

appellant’s claim there was a virtual hostile atmosphere due to the entry by the law

enforcement officers, not one of the law enforcement officers recognizes this.

                                                           Once inside the apartment, which access was granted to the Agents based on

valid consent, the Agents seized the marihuana and controlled substance based on

the plain view exception to the warrant requirement. The jar of marihuana and

ziploc bags of marihuana were readily apparent from the position where the Agents

stood in the living room.42 It was immediately apparent to the trained narcotics

Agents that a green leafy substance is marihuana.43 Based on where the Agents

were standing and seeing the jar and ziploc bags, the Agents had the right to access

these objects.

                                                           Based on the tip of an informant, Agents Shroeder, Cortinez, and Holland

performed a “knock and talk” on the appellant (and his co-defendant)’s apartment.

Upon opening the door, the appellant consented to the Agents entering the

apartment, even though they had not yet obtained a warrant. While inside the
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
40
   III R.R. at 10.
41
   II R.R. at 27.
42
   Id. at 35.
43
   Id.
                                                                                                                                                                                                                                                    7
apartment Agent Shroeder secured the loaded firearm that had been on the couch,

and then, during the course of the discussion with the appellant, Agent Holland

noticed ziploc bags of marihuana and a jar of marihuana in plain view. The

appellant granted valid consent, based on a totality of the circumstances, for the

Agents to enter the apartment. The appellant cannot now claim consent was not

granted because of what was lying around in plain view. Because the Agents had

valid consent to enter the apartment, they were able to seize the controlled

substance and marihuana they found under the plain view doctrine.

                                       Prayer

       The State of Texas prays that this Court of Appeals affirm the judgment of

the trial court.




                                          8
                                               Respectfully Submitted,

                                                /s/ April Ayers-Perez
                                               Assistant District Attorney
                                               Angelina County D.A.’s Office
                                               P.O. Box 908
                                               Lufkin, Texas 75902
                                               (936) 632-5090 phone
                                               (936) 637-2818 fax
                                               State Bar No. 24090975
                                               ATTORNEY FOR THE
                                               STATE OF TEXAS

                             Certificate of Compliance

      I certify that this document contains 1,677 words, counting all parts of the

document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in

14 point font, and the footnote text is in 12 point font.


                                               /s/ April Ayers-Perez


                                Certificate of Service

      I certify that on September 24, 2015, a true and correct copy of the above

document has been forwarded to John Reeves, 1007 Grant Street, Lufkin, TX

75901, by electronic service through efile.txcourts.gov.


                                               /s/ April Ayers-Perez



                                           9
