                     PD-1204-17                                                   PD-1204-17
                                                                 COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                                  Transmitted 11/8/2017 5:39 PM
                                                                    Accepted 11/9/2017 3:29 PM
                                                                          DEANA WILLIAMSON
                                                                                         CLERK
                         No. ________________
                                                                   FILED
                                                          COURT OF CRIMINAL APPEALS
          IN THE TEXAS COURT OF CRIMINAL              APPEALS 11/9/2017
                                                           DEANA WILLIAMSON, CLERK


                     TRACY LYNN MCGREW, JR.
                            Appellant

                                     v.

                        THE STATE OF TEXAS
                              Appellee

              Appealed from Docket No. 09-16-00424-CR
      In the Court of Appeals for the Ninth Judicial District of Texas

           PETITION FOR DISCRETIONARY REVIEW
          OF APPELLANT TRACY LYNN MCGREW, JR.


               ASHTON CHRISTOPHER ADAIR
               STATE BAR NUMBER: 00795907
 MAILING ADDRESS: 7400 GULF FREEWAY, HOUSTON, TEXAS 77017
PHYSICAL ADDRESS: 7400 GULF FREEWAY, HOUSTON, TEXAS 77017
                  TELEPHONE: 713-777-5297
             TOLL FREE FACSIMILE: 844-273-9752
                  CELL PHONE: 832-221-8759
           EMAIL: ASH@HOUSTONTXLAWYER.COM

                     COUNSEL FOR APPELLANT
             IDENTITY OF JUDGE, PARTIES AND COUNSEL

The trial court judge in this case was Judge Dennis Watson.

The parties to the judgment in this case are Tracy Lynn McGrew, Jr. and the State
of Texas.

The names and addresses of all trial and appellate counsel are:

                       Trial Counsel for the State of Texas:

                               Anthony Franklyn
                                  Sara Corradi
                           Assistant District Attorneys
                           Montgomery County, Texas
                          207 W. Phillips, Second Floor
                              Conroe, Texas 77301

                 Trial Counsel for Appellant Tracy McGrew, Jr.:

                                  Ashton C. Adair
                              State Bar No. 00795907
                                7400 Gulf Freeway
                               Houston, Texas 77017

                     Appellate Counsel for the State of Texas:

     MONTGOMERY COUNTY DISTRICT ATTORNEY, BRETT LIGON
                    William J. Delmore III
                    Asst. District Attorney
                  207 W. Phillips, 2nd Floor
                     Conroe, TX 77301

                                Brett W. Ligon
                               District Attorney
                           Montgomery County, Texas
                          207 W. Phillips, Second Floor
                              Conroe, Texas 77301



                                         i
                Philip S. Harris
           Assistant District Attorney
           Montgomery County, Texas
          207 W. Phillips, Second Floor
              Conroe, Texas 77301

Appellate Counsel for Appellant Tracy McGrew, Jr.:

                 Ashton C. Adair
             State Bar No. 00795907
               7400 Gulf Freeway
              Houston, Texas 77017




                        ii
                                      TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL.............................................. i

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES......................................................................................v

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE ..................................................................................1

STATEMENT OF PROCEDURAL HISTORY........................................................2

QUESTIONS PRESENTED FOR REVIEW ............................................................2

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

ARGUMENT IN SUPPORT OF REASONS FOR REVIEW ..................................4

  I.    The Court of Appeals has Decided an Important Question of State and
        Federal Law in a Way that Conflicts with the Applicable Decisions of the
        Supreme Court of the United States ................................................................4
       A.The Court of Appeals Erred in Holding that Mr. McGrew’s Conduct was
         Sufficiently Distinguishable from that of Innocent People under the Same
         Circumstance ..............................................................................................4
  II. The Court of Appeals has Erred in its Interpretation of the United States
      Constitution’s Fourth Amendment as it Relates to the Concept of
      Reasonable Suspicion to Detain a Citizen .......................................................6
       A.     The Court of Appeals Erred in Holding that the Reasonable Suspicion
              Standard can be Met without Identifying a Connection Between a
              Suspect’s Behavior and a Particular Crime................................................6
        i.      Deputy Vasquez’s Suspicion was Based on Subjective Views..............6
        ii.     Deputy Vasquez did not Articulate a Connection Between Mr.
                McGrew’s Actions and a Crime .............................................................7

                                                        iii
         iii.    Deputy Vasquez Did Not Articulate a Connection Between Mr.
                 McGrew’s Actions and the Violation of a Codified Law .......................8
         iv.     The Court’s Holding in Derichsweiler Identified Reasonable Suspicion
                 of a Specific Crime and Distinctions Between Suspects in Prior and
                 Impending Crimes ...................................................................................9
         v.      Reasonable Suspicion of Criminal Activity Must Be Defined as
                 Reasonable Suspicion of a Violation of a Codified Criminal Law ......10
         vi.     Geographic Area and Time of Day are Not Sufficient Alone to
                 Establish Justification of Detention ....................................................111
III.        The Court of Appeals’ Decision is in Conflict with Other Court of
            Appeals’ Decisions on the Same Issue........................................................12
       A.       Other Appellant Courts have Held that Sufficient Articulable Facts Must
                Link a Suspect with a Particular Crime in Order to Justify a Detention .12
CONCLUSION ........................................................................................................13

REQUEST FOR RELIEF ........................................................................................13

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

CERTIFICATE OF SERVICE ................................................................................14

APPENDIX ..............................................................................................................15




                                                           iv
                                          INDEX OF AUTHORITIES

Cases

Brodnex v. State, 485 S.W.3d 432 at 438 (2016).....................................................12

Brown v. Texas, 443 U.S. 47, 52 (1979) ....................................................................4

Comer vs. State, 754 S.W. 2d 656 .............................................................................1

Derichsweiler v. State, 348 S.W.3d 906 at 917 (2011) .............................................9

Florida v. Royer, 460 U.S. 491, 500 (1983) ..............................................................4

Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001) ....................................7

Garza vs. State, 771 S.W.2d 549, 558-559 ..............................................................12

St. George v. State, 197 S.W.3d 806 at 815 (Worth 2006) ........................................7

Terry v. Ohio, 392 U.S. 1(1968) ................................................................................4

Wade v. State, 422 S.W.3d 661, at 672 (2013) ..........................................................6

Rules

Tex. R. App. P. 66.3(a) ..............................................................................................3

Tex. R. App. P. 66.3(c) ..............................................................................................3

Tex. R. App. P. 66.3(d) ..............................................................................................3

Constitutional Provisions
Fourth Amendment of the United States Constitution ..................................... 2, 3, 4
......................................................................................................................................




                                                                  v
To The Honorable Court of Criminal Appeals of Texas:

              STATEMENT REGARDING ORAL ARGUMENT

      The undersigned attorney waives oral argument.

                         STATEMENT OF THE CASE

      This is a petition for discretionary review of the denial of Tracy Lynn

McGrew, Jr.’s Motion to Suppress Evidence obtained during the stop of his vehicle

on or about March 20, 2016. Appellant Tracy Lynn McGrew, Jr. was arrested and

charged with Possession of Marijuana on or about March 20, 2016. See Court

Clerk’s Record, pages 4-5. On July 11, 2016, Appellant filed a Motion to Suppress.

See Court Clerk’s Record, pages 6-10. On October 4, 2016, Appellant filed his First

Amended Motion to Suppress which is not included in the Court Clerk’s Record.

The only difference between Appellant’s Original Motion to Suppress and

Appellant’s First Amended Motion to Suppress is the omission of references to

Comer vs. State, 754 S.W. 2d 656. Appellant’s First Amended Motion to Suppress

is included in the Appendix to this Petition, and is referenced by the County Court

Judge on page 5, lines 4-5 of the Court Reporter’s Record.

      The Montgomery County Court at Law Number One denied Appellant’s

Motion to Suppress on October 4, 2016 and signed the Order thereon on November

1, 2016. See Court Clerk’s Record, page 11. After the denial of the Motion to

Suppress, Appellant pled guilty to the charge of Possession of Marijuana on October


                                        1
4, 2016, and was sentenced to 3 days in the Montgomery County Jail (with credit for

3 days) and a $500.00 fine plus court costs of $302.00. See Court Clerk’s Record,

pages 12-14. The Court certified Appellant’s right to Appeal the Denial of his

Motion to Suppress on October 4, 2016. See Court Clerk’s Record, page 16.

Appellant filed his Notice of Appeal on November 1, 2016. See Court Clerk’s

Record, page 18.

                STATEMENT OF PROCEDURAL HISTORY

      The Ninth Court of Appeals affirmed the judgment of the trial court in a

decision rendered October 4, 2017. Appellant now files his petition for discretionary

review pursuant to Rule 68 of the Texas Rules of Appellate Procedure.

                   QUESTIONS PRESENTED FOR REVIEW

                                         1.

Whether a police officer violates a citizen’s United States Constitution’s Fourth

Amendment rights by detaining an individual without being required to articulate a

connection between the individual’s behavior and a specific crime.




                                         2
                          REASONS FOR REVIEW

                                          I.

The Court of Appeals has decided an important question of state and federal law in

a way that conflicts with the applicable decisions of the Supreme Court of the United

States. Tex. R. App. P. 66.3(c).

                                          II.

The Court of Appeals has erred in its interpretation of the United States

Constitution’s Fourth Amendment as it relates to the concept of reasonable suspicion

to detain a citizen. Tex. R. App. P. 66.3(d).

                                         III.

The Court of Appeals’ decision is in conflict with other Court of Appeals’ decisions

on the same issue. Tex. R. App. P. 66.3(a).




                                           3
           ARGUMENT IN SUPPORT OF REASONS FOR REVIEW

   I.      The Court of Appeals has Decided an Important Question of State and
           Federal Law in a Way that Conflicts with the Applicable Decisions of the
           Supreme Court of the United States

              A. The Court of Appeals Erred in Holding that Mr. McGrew’s
                 Conduct was Sufficiently Distinguishable from that of Innocent
                 People under the Same Circumstance

        The Fourth Amendment applies to seizures of the person, including brief

investigatory stops of motor vehicles. Terry v. Ohio, 392 U.S. 1(1968). Some

objective manifestation that the person stopped is, or is about to be, engaged in

criminal activity must justify an investigatory stop. Brown v. Texas, 443 U.S. 47

(1979). There was no testimony that Appellant was or was about to be engaged in

criminal activity. It is the State's burden to articulate facts sufficient to support

reasonable suspicion. Brown v. Texas, 443 U.S., at 52; see also Florida v. Royer,

460 U.S. 491, 500 (1983).

         On or about March 20, 2016, Montgomery County Deputy Vasquez

observed the Appellant’s vehicle backed into a parking stall with its parking lights

on with several people in the vehicle. See Court Reporter’s Record page 9, lines 4-

9. The Deputy stated that she observed occupants of the car start to move “around

kind of frantically.” See Court Reporter’s Record page 9, lines 18-20. Deputy

Vasquez continued down the path of the parking stall driveway and turned left to go

back toward Appellant’s vehicle. As she turned left, Deputy Vasquez observed the


                                            4
vehicle turn on its lights and leave. See Court Reporter’s Record page 9, lines 20-

25.

        Deputy Vasquez followed Appellant’s vehicle, and observed several people

in the vehicle “shifting around” and observed one person looking back at the

Deputy’s patrol vehicle and acting as if he was “shifting around and moving stuff

around in the backseat.” Deputy Vasquez then stopped and detained Appellant. See

Court Reporter’s Record page 10, lines 19-21. The Deputy testified that she would

not have stopped Appellant if the occupants in his car had gotten out of the car while

in the parking lot. See Court Reporter’s Record page 10, line 25 - page 11, line 2.

        Upon cross-examination the Deputy testified that the occupant’s movements

and the departure of Appellant and his occupants from the hotel parking lot made

her suspicious of Appellant; but she testified that she had “no idea of what crime.”

See Court Reporter’s Record page 13, lines 5-22.

             Deputy Vasquez testified that the behavior of Appellant and his

occupants appeared the same as the behavior of law abiding people. See Court

Reporter’s Record page 16, line 22 – page 17, line 1.




                                          5
   II.      The Court of Appeals has Erred in its Interpretation of the United States
            Constitution’s Fourth Amendment as it Relates to the Concept of
            Reasonable Suspicion to Detain a Citizen

               A. The Court of Appeals Erred in Holding that the Reasonable
                  Suspicion Standard can be Met without Identifying a Connection
                  Between a Suspect’s Behavior and a Particular Crime

         As Deputy Vasquez had stopped Appellant’s vehicle and she was still behind

Appellant, Deputy Vasquez arbitrarily labels Appellant a “suspicious person,” but is

unaware of any connection between Appellant and any specific crimes. See Court

Reporter’s Record page 19, line 3 – page 20, line 3. “…[A]n officer and the

Government must do more than simply label a behavior as ‘suspicious’ to make it

so. The Government must also be able to either articulate why a particular behavior

is suspicious or logically demonstrate, given the surrounding circumstances, that the

behavior is likely to be indicative of some more sinister activity than may appear at

first glance.” Wade v. State, 422 S.W.3d 661, at 672 (2013).

                  i.     Deputy Vasquez’s Suspicion was Based on Subjective Views

   Reasonable suspicion exists where the officer has:

   1) specific articulable facts that,

   2) when combined with rational inferences from those facts,

   3) would lead the officer to reasonably suspect that a particular person has

         engaged or is engaging in criminal activity [Itemization numbers added by

         Appellant].


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

Deputy Vasquez is required to articulate a connection between Appellant’s behavior

and a crime in order to detain said person.

                ii.    Deputy Vasquez did not Articulate a Connection Between
                       Mr. McGrew’s Actions and a Crime

      A Deputy must satisfy element (3) of the Reasonable Suspicion standard: the

officer must reasonably suspect that a particular person has engaged or is engaging

in criminal activity. It is unfathomable to make a connection to any criminal activity,

without stating which criminal activity may be afoot.       It is inherently unfair and

subject to individual bias if the standard for detention is an individual officer’s

subjective belief of what is unusual behavior, without articulating the behavior’s

connection to a particular crime. The officer "must be able to articulate something

more than an inchoate and unparticularized suspicion or hunch.” St. George v. State,

197 S.W.3d 806 at 815 (Worth 2006).

      In the interests of uniformity and fairness, it is important for the officer to

identify a particular crime instead of using the generic label “criminal activity.” The

term “criminal activity” must refer to a violation of the voluminous archives of laws

that we are all bound to follow. To be included in the definition, the detaining officer

must point to at least one of these laws to possess the authority to detain a citizen.

While criminal statutes have titles and labels, they are also comprised of elements

which are required to be proven before a person can be convicted. Our system runs

                                           7
this way because it would be unfair, for example, to make it against the law to

commit “criminal mischief” without a definition which includes specific elements

making certain specific behavior illegal. Otherwise, there would be no standard for

acting in our society and each jurisdiction or officer could subjectively define what

they believe “criminal mischief” to be. This applies equally to crimes to which we

would all have an intuitive definition, such as theft. Indeed, the crime of “theft” is

specifically defined with elements so that we can have a uniform and fair guide, with

little room for reasonable debate. The same should be true for labeling a person as

engaged or is engaging in criminal activity. The term “criminal activity” should be

defined.

                iii.   Deputy Vasquez Did Not Articulate a Connection Between
                       Mr. McGrew’s Actions and the Violation of a Codified Law

      The term “criminal activity” must be defined as a violation of one of our

codified laws. If an officer cannot identify which of the laws she suspects a person

has violated, she is using the term arbitrarily, applying a subjective standard which

will result in unfairness due to her unparticularized suspicion or hunch. In this

instance, all of us would be subject to detention for a variety of undefined reasons.

      It is not difficult to articulate a suspicion of a violation of one of our many

laws. Deputy Vasquez’s suspicion was inchoate and an unparticularized hunch or

fishing expedition.



                                          8
                iv.    The Court’s Holding in Derichsweiler Identified Reasonable
                       Suspicion of a Specific Crime and Distinctions Between
                       Suspects in Prior and Impending Crimes

        There are a few opinions that have stated that an officer need not identify a

particular crime in order to establish reasonable suspicion. The Holdings on this

issue should be overturned. Each of those opinions resulted in the Court opining a

reasonable suspicion of a specific crime to justify the detention. For example, in

Derichsweiler v. State, the Court states of the defendant’s actions: “It reasonably

suggests someone who was looking to criminally exploit some vulnerability— a

weak or isolated individual to rob or an unattended auto to burgle.” Derichsweiler

v. State, 348 S.W.3d 906 at 917 (2011). Clearly the Court in Derichsweiler does

justify the stop there based upon a reasonable suspicion of the specific crimes of

robbery or burglary of an automobile. Regardless of the method or reasoning, it is

impossible to define “criminal activity” without at least one reference to a codified

law. Derichsweiler also makes a distinction between a suspect for a previous crime,

and a suspect in an impending crime, indicating that a lower standard to stop a person

is warranted to stop an impending crime. Derichsweiler v. State, 348 S.W.3d 906 at

917 (2011). Deputy Vasquez never alluded to whether Appellant was a suspect in a

previous or impending crime.        This type of loose suspicion should not be

encouraged.




                                          9
                v.     Reasonable Suspicion of Criminal Activity Must Be Defined
                       as Reasonable Suspicion of a Violation of a Codified
                       Criminal Law

      It is well established that an officer must use the totality of the circumstances,

including everything that law enforcement knew, to justify reasonable suspicion for

a stop. It is also well known that the level of culpability to be proven is far less for

reasonable suspicion to stop as opposed to probable cause. However, when the

totality of the circumstances renders an officer unable to articulate how said

circumstances are related to a particular crime, we are left with a detention that

produces the question: which crime, emergency, or matter, is the officer

investigating? If the stop is not somehow reasonably articulated to relate to a

particular crime or crimes, the result becomes absurd in that the officer can then

detain a person for a long time, for the purpose of investigating many possible crimes

that could theoretically be committed. For there to be a limit to the scope and

duration of a detention, the officer must be investigating particular crimes in which

the officer reasonably suspects of the detainee. In order to do so, the officer must be

able to identify those particular crimes and the connection to the detainee. If we do

not define “criminal activity” as a violation of a codified law, or define “criminal

activity” in any way, then any behavior can be viewed as being suspect to “criminal

activity,” depending on the officer’s subjective bias. This leaves the door wide open

for unreasonable detentions of innocent people. It is unreasonable to conclude that


                                          10
we can define “criminal activity” without using one or more of the definitions or

titles found in our written laws, and it is equally unreasonable to refrain from

defining “criminal activity” when the same is a term used to justify a detention. It

would otherwise be completely subjective, with no standards, leading to a conflicted

system, and opening the door to corruption and/or personal bias of each individual

officer and/or Judge. It is better to provide guidelines and definitions when we can,

than to leave the definitions and standards open to unending debate. While it is not

always easy or practical to provide such guidelines, it is easy in this case. A

reasonable suspicion of “criminal activity” should be defined as a reasonable

suspicion of a violation of a “codified criminal law.”

                vi.    Geographic Area and Time of Day are Not Sufficient Alone
                       to Establish Justification of Detention

       It was not established during the Motion to Suppress Hearing that this

particular area had more occurrence of general crime than other areas or other times

of the year, but there were occurrences of criminal mischief, burglary, and theft See

Court Reporter’s Record page 7, lines 16-19 and See Court Reporter’s Record page

15, lines 2-4). The Deputy was thus patrolling with suspicions for these particular

crimes.   It is commendable for the Deputy to be suspicious of these crimes and

observe the area, but she needed more than what was presented to infringe on a

person’s Constitutional rights.



                                         11
          Deputy Vasquez did not testify about her training or elaborate on how her

experience led her to be suspicious of the Appellant herein. There was no testimony

that the area where Appellant was stopped was a high drug area. Therefore, the State

did not meet its burden of proof to justify the stop of Appellant.

   III.      The Court of Appeals’ Decision is in Conflict with Other Court of
             Appeals’ Decisions on the Same Issue

                A. Other Appellant Courts have Held that Sufficient Articulable Facts
                   Must Link a Suspect with a Particular Crime in Order to Justify a
                   Detention

          The Brodnex Court, regarding the Ruling in Garza stated (with emphasis

added in bold by the herein Appellant): In Garza vs. State, 771 S.W.2d 549, the

officer had heard that the appellant was "good for" some burglaries, had seen the

appellant's mugshot, had received a description of the appellant's vehicle, and had

heard that the appellant was a narcotics addict. Garza, 771 S.W.2d 549 at 558-59.

The Court held that, because the officer's information never linked the appellant to

a particular crime, and that prior to stopping the appellant, the officer did not

observe anything to indicate that an offense had been or was being committed, the

detention was not supported by sufficient articulable facts. Id. Very similar to

Garza, the officer in Brodnex v. State had no information indicating that Appellant

was tied to a specific crime or was in the process of perpetrating one [and thus his

Motion to Suppress should have been granted]. Brodnex v. State, 485 S.W.3d 432

at 438 (2016).

                                           12
                                  CONCLUSION

      The balancing act we are analyzing in this case is the difference between a

police state where an officer can make an ambiguous contention of labeling an

actor “generally suspicious,” to implement a stop, depriving a citizen of the

freedom of movement and privacy we all cherish, and a State which is based upon

the notion of personal freedom for the people to go about their business

uninterrupted. There is a point where living under greater power and discretion

conferred upon security forces becomes intolerable because you have lost your

freedom of movement and privacy, thereby depriving reasonable persons of the

dignity of perceived freedom; and without such dignity for some, the loss of the

very worth of existence in such a state. A prison, where an inmate can be detained

and searched at any time is certainly not a preferable place to live.

                             REQUEST FOR RELIEF

      Appellant respectfully requests that this Court grant his Petition for

Discretionary Review and reverse the decision of the Court of Appeals. The

evidence seized should be ordered suppressed, and the conviction based on that

evidence should be reversed.


Respectfully submitted,


Ashton Adair
/s/ Ashton Adair

                                          13
Attorney for Appellant
7400 Gulf Freeway
Houston, Texas 77017
Telephone: 713-777-5297
Fax: 844-273-9752
ash@houstontxlawyer.com

CERTIFICATE OF COMPLIANCE
I certify that this document was prepared with Microsoft Word 2013, and that,
according to that program’s word-count function, the sections covered by TRAP
9.4(i)(1) contain 2503 words and the text is in 14-point font.
  Ashton Adair
____________________
Ashton Adair



                        CERTIFICATE OF SERVICE

I hereby certify that on the 8TH day of November, 2017, a true and correct copy of
this Petition for Discretionary Review of the Appellant’s Tracy Lynn McGrew, Jr.,
was served upon The Montgomery County District Attorney’s Office by fax to fax
number 936-788-8395 and electronic document transmission.

Ashton Adair
/s/ Ashton Adair




                                        14
APPENDIX




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