                                                                                      ACCEPTED
                                                                                  12-15-00131-CR
                                                                     TWELFTH COURT OF APPEALS
                                                                                   TYLER, TEXAS
                                                                            8/31/2015 11:36:16 PM
                                                                                    CATHY LUSK
                                                                                           CLERK

                    Cause No. 12-15-00131-CR

                                                                  FILED IN
                                                           12th COURT OF APPEALS
                                                                TYLER, TEXAS
                  In the Court of Appeals for the
                                                           8/31/2015 11:36:16 PM
               Twelfth Judicial District at Tyler, Texas        CATHY S. LUSK
                                                                    Clerk



                          Eric Clark Allen,
                             Appellant

                                  v.

                           State of Texas,
                              Appellee



         On Appeal from Cause No. 2014-0063 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

Eric Clark Allen, Appellant
TDCJ Number: 1998968
Byrd Unit
21 FM 247
Huntsville, Texas 77320

Jerry N. Whiteker
Attorney for Appellant (trial and appeal)
P.O. Box 1443
Lufkin, Texas 75902
SBN: 21361500

Art Bauereiss
District Attorney
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 01921800

April Ayers-Perez
Assistant District Attorney
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 .......................................................................... 4

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

        Reply Issue #1: The evidence is sufficient to sustain the trial
        court’s denial of the Appellant’s Motion to Suppress, because
        law enforcement was granted consent to search the Appellant’s
        cell phone. ......................................................................................... 4

                 Applicable law........................................................................... 5

                 Standard of review .................................................................... 6

                 The Totality of the Circumstances Favor Voluntary
                 Consent ................................................................................... 7

Prayer ....................................................................................................... 10

Certificate of Compliance .......................................................................... 11

Certificate of Service ................................................................................. 11

                                                       iii
                                      Index of Authorities

Cases                                                                                             Page

Boyle v. State, 820 S.W.3d 549 (Tex.Crim.App. 1989) ............................... 6

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) .............................. 6

Maryland v. Macon, 472 U.S. 463 (1985) .................................................... 6

Meekins v. State, 340 S.W.3d 454 (Tex.Crim.App. 2011) ........................... 6

State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App. 2006)............................. 5, 6

United States v. Pena, 143 F.3d 1363 (10th Cir. 1998) ............................... 7


Rules

Tex. R. App. P. 9.4(i)(1) ............................................................................ 11

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

Statutes

U.S. CONST., AMEND. IV .............................................................................. 5

Tex. Const. Art. I, Sec. 9 ............................................................................ 5

Tex. Pen. Code Ann. § 43.26 (West 2011) ................................................. 5

                                                    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 evidence is sufficient to sustain the trial court’s

denial of the Appellant’s Motion to Suppress, because law enforcement

was granted consent to search the Appellant’s cell phone.




                                     v
                           Statement of Facts

       On December 3, 2013 Officer Mike Jenkins with the Huntington

Independent School District was working security at the Huntington High

School basketball game in Angelina County, Texas.1 The appellant, Eric

Clark Allen, was at the gymnasium where the game was being held seated

in the student section.2 Officer Jenkins recognized the appellant because

the night prior to this game, on December 2, 2013, a security officer and

coach from the middle school basketball game had given the appellant a

criminal trespass and instructed him not to come back on school property.3

The appellant had been accused of taking inappropriate pictures of the

cheerleaders and students during the middle school basketball game on

December 2, 2013.4 During the basketball game Officer Jenkins noticed

the appellant had his cell phone out and was behaving oddly and

inconsistently with the other attendees.5 After the game, and the majority

of the crowd left the gymnasium, the appellant proceeded to go to the area

of the gymnasium where the cheerleaders and other students were




1
  II R.R. 11-13.
2
  Id. at 13-14.
3
  Id. at 13-14, 26.
4
  Id. at 13-14.
5
  Id. at 15-16.
                                    1
gathered.6 Officer Jenkins then approached the appellant and asked to

speak to him outside.7 Officer Jenkins and the appellant sat in the driver’s

seat and passenger seat of the patrol car to talk because of the number of

people who were coming and going from the game.8 At no time was the

appellant ever placed under arrest nor was anything done to keep Allen

from ending the encounter.9 Officer Jenkins explained to the appellant that

he wanted to see his phone to see if he took any inappropriate pictures of

students, at which point the appellant gave Officer Jenkins consent to look

through his phone.10 Further, Officer Jenkins explained to the appellant

that he had a right to revoke his consent to search the phone at any time,

which the appellant did not ever revoke.11              While looking through the

appellant’s phone Officer Jenkins came across images that were obvious to

him to be child pornography, and at that point discontinued his search of

the phone and obtained a search warrant for the phone.12 Officer Jenkins

then explained to the appellant that he saw something inappropriate and

potentially criminal in nature on the phone and would be seizing his phone,


6
  Id. at 16.
7
  Id.
8
  Id. at 17, 32-33 (“A. I took him out of respect for him because I was going to ask him
some stuff that I felt would be sensitive to him.”
9
  Id.
10
   Id. at 17-18.
11
   Id. at 38-39.
12
   Id. at 18.
                                            2
due to fear of the phone being destroyed and of the appellant getting rid of

the evidence13, and placing it in to evidence.14 Officer Jenkins did not look

through the remainder of the phone until getting a search warrant, at which

point he took the phone to the Lufkin Police Department to be analyzed.15

       After the Lufkin Police Department searched the appellant’s phone

and determined there was child pornography on it, Officer Mike Jones with

the Huntington Independent School District Police Department spoke to the

appellant and asked for consent to search his residence for any other child

pornography images.16 Officer Jones recorded the conversation between

himself and the appellant17 in which the appellant spoke to Officer Jones

freely and voluntarily, was not promised anything, and consented to a

search of his residence.18     However, upon arriving at the appellant’s

residence, the appellant’s father denied consent to Officer Jones and

Officer Jenkins, at which point they left the residence and obtained a

warrant.19     That same day, Investigator Jamie Jenkins with the Lufkin

Police Department, interviewed the appellant at the Angelina County



13
   Id. at 20-21.
14
   Id.
15
   Id. at 21-22.
16
   Id. at 42, 48-49.
17
   State’s Exhibit No. 2.
18
   II R.R. at 50-51.
19
   Id. at 54-55.
                                      3
Sheriff’s Department after the appellant had been arrested.20 After reading

the appellant’s Miranda rights to him, and having the appellant not only

verbally indicate that he understood each right, but also initial each line, the

appellant waived all his rights and freely and voluntarily spoke to law

enforcement.21

                               Summary of the Argument

         Upon being asked by a law enforcement officer to look through his

cell phone, the appellant voluntarily gave his cell phone to the law

enforcement officer to look through. The totality of the circumstances show

that the appellant was aware that he was voluntarily consenting to the

search. In the light most favorable to the trial court’s ruling, the appellant

voluntarily consented to the search of his cell phone.

                                      Argument

         Reply Issue #1: The evidence is sufficient to sustain the trial court’s

denial of the Appellant’s Motion to Suppress, because law enforcement

was granted consent to search the Appellant’s cell phone.




20
     Id. at 56-57.
21
     Id. See State’s Exhibit No. 4.
                                          4
                                 Applicable law

       A person commits the offense of Possession or Promotion of Child

Pornography if, the person knowingly or intentionally possesses, or

knowingly or intentionally accesses with intent to view, visual material that

visually depicts a child younger than 18 years of age at the time the image

of the child who was made who is engaging in sexual conduct; and the

person knows that the material depicts the child as described.22

     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 affirmation, and particularly describing the place to
     be searched, and the persons or things to be seized.23

Likewise, the Texas Constitution reads as follows:

       The people shall be secure in their persons, houses, papers and
       possessions, from all unreasonable seizures, and no warrant to
       search any place, or to seize any person or thing, shall issue without
       describing them as near as may be, nor without probable cause,
       supported by oath or affirmation.24




22
   Tex. Pen. Code Ann. § 43.26 (West 2011)
23
   U.S. Const. amend. IV
24
   Tex. Const. art. I §9.
                                         5
                                Standard of review

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

most favorable to the trial court’s ruling.25 If the trial court has not

made explicit finds of fact the appellate court will imply facts findings

that will support the trial court’s ruling as long as the evidence will

support those implied findings.26             Voluntariness is such a fact

intensive question that the trial court’s finding will be accepted unless

it is clearly erroneous.27      Consent is an exception to the warrant

requirement and is valid when it is voluntarily given.28 The State must

prove the consent was obtained voluntarily by clear and convincing

evidence.29 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.30       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




25
   State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006).
26
   Id. at 818-19.
27
   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).
28
   Harrison v. State, 205 S.W.3d 549, 552 (Tex.Crim.App. 2006).
29
   Id.
30
   Id.
                                          6
person, without regard for the subjective intents or thoughts of either

the citizen or law enforcement.31


      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.32 The appellant testified, and the

sole point of contention in this matter, that Officer Jenkins told him that if

the appellant did not give Officer Jenkins his cell phone Officer Jenkins

would take him to jail.33     Meanwhile, Officer Jenkins unequivocally states

that he did not threaten to arrest the appellant if the appellant would not

give over his phone.34 In fact, despite the consent that had been granted to

Officer Jenkins by the appellant to search his phone, Officer Jenkins

stopped the search in order to obtain a search warrant once he found

illegal activity.35 Officer Jenkins did not have to obtain a search warrant at




31
   Meekins v. State, 340 S.W.3d 454, 459 (Tex.Crim.App. 2011) (quoting Maryland v.
Macon, 472 U.S. 463, 470-71 (1985)).
32
   United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998).
33
   II R.R. at 8.
34
   Id. at 19-20.
35
   Id. at 22.
                                          7
that point, he had already been granted consent, however he chose to

pursue a course that provided more protection for the appellant.36

         At no point does the appellant allege any sort of physical

maltreatment,        use   of   violence,   threats   of   violence,   promises   or

inducements, or deception or trickery. The only circumstance which the

appellant alleges is a threat of being arrested if the cell phone is not

handed over, which Officer Jenkins categorically denies. The trial court, in

their discretion to determine voluntariness, weighed the testimony of Officer

Jenkins more favorably than the limited testimony of the appellant, by

denying the appellant’s motion to suppress. Furthermore, the appellant’s

voluntariness of consent can be determined based on the appellant’s

actions during the course of his time with Officer Jenkins and Officer Jones.

At no point did the appellant walk away. The appellant did not refuse to

hand over his cell phone. Officer Jenkins explained that he could revoke

consent and Allen still handed over his cell phone. At no point was the

appellant threatened, coerced, or forced into giving his cell phone. Further,

the appellant developed a history of cooperating with law enforcement, as

the appellant voluntarily consented to have a conversation with Officer

Jones the day after the cell phone was searched, and even agreed, on


36
     Id. at 68-70.
                                            8
video, to allow a search of his residence. When the appellant’s father did

not allow a search of the residence the law enforcement officers

acquiesced to that and retrieved a warrant. At the first sign of the lack of

voluntary consent of somebody in the equation law enforcement shut

everything down and got a warrant.

       Dr. Jean Stanley, a licensed mental health specialist, testified at the

adjudication hearing as to a forensic evaluation she completed on the

appellant.37 Although Dr. Stanely states the appellant has an IQ of 75,

which is below average.38 However, the appellant’s verbal IQ was an 86

which fell within the normal range.39 Dr. Stanley further notes that the

appellant is aware of his surroundings, who he is, where he is, and why he

is where he is.40 Neither Dr. Stanely nor the appellant ever denies that the

appellant had the mental capacity to understand what Officer Jenkins was

asking when he asked the appellant if he could look at his phone. The

totality of the circumstances for voluntariness of consent weighs heavily in

the State’s favor. An objectively reasonable person would know that they

were voluntarily consenting to hand over their phone, and not acting under

coercion or duress.

37
   III R.R. at 10-12.
38
   Id. at 18-19.
39
   Id. at 18.
40
   Id.
                                       9
      This is not the case of an appellant being stumped by law

enforcement. This is the case of an appellant who chose to cooperate with

law enforcement every step of the way, as demonstrated on audio and

video, and consent to the search of his cell phone, consent to a

conversation, and consent to the search of his residence. The appellant

cannot then turn around, when facing a substantial sentence, and turn back

time to no longer consent. Consent is decided objectively in the moment

based on voluntariness, and the appellant chose to voluntarily consent to

law enforcement multiple times over the course of 48 hours.

                                 Prayer

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

judgment of the trial court.




                                    10
                                             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 1,969 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 August 31, 2015, a true and correct copy of the above

document has been forwarded to Jerry Whiteker, P.O. Box 1443, Lufkin,

TX 75902, by electronic service through efile.txcourts.gov.


                                             /s/ April Ayers-Perez



                                        11
