                            PD-1397-15                                                                   PD-1397-15
                                                                                        COURT OF CRIMINAL APPEALS
                                                                                                        AUSTIN, TEXAS
                                                                                      Transmitted 11/13/2015 8:54:32 AM
                                                                                       Accepted 11/13/2015 11:36:38 AM
                                                                                                         ABEL ACOSTA
                                                                                                                 CLERK

                                   SHAREN WILSON
                                   Criminal District Attorney
                                        Tarrant County


                                   November 13, 2015

Hon. Abel Acosta, Clerk
Court of Criminal Appeals                                                             November 13, 2015
P.O. Box 12308
Austin, Texas 78711

     Re:     Stewart v. State, No. PD-1397-15

Greetings:

This letter is in response to Appellant’s pro se Petition for Discretionary
Review filed in this Court, on October 29, 2015, in Stewart v. State, 08-
14-00114-CR, 2015 WL 5449851, at *1 (Tex.App. -- El Paso Sept. 16,
2015, pet. filed) (mem. op., not designated for publication). The court of
appeals held that Appellant failed to show that it was an abuse of
discretion for the trial court to refuse to suppress the evidence.
Stewart, 2015 WL 5449851, at *3 (“officers independently corroborated
the tip with respect to future actions by third parties”).

Appellant’s sole ground for review maintains that reasonable suspicion
was not shown in the trial court. Pet. at 5-9. Appellant’s complaint is
unworthy of discretionary review for several reasons.

First, Appellant’s complaint constitutes a mere rehash of the complaint
that Appellant presented to the court of appeals rather than an attempt
to demonstrate where the court of appeals’ decision violates precedent.
Degrate v. State, 712 S.W.2d 755, 756 (Tex. Crim. App. 1986) (per
curiam) (discretionary review petition should specifically address court
of appeals' decision, and “[a]ny petition which fails to set forth adequate
reasons for this Court to exercise its discretion to review a court of
appeals' opinion is subject to . . . summary refusal”); see also TEX. R.
                401 West Belknap     •   Fort Worth, Texas 76196   •   817.884.1400
APP. P. 66.1 & 68.1; Bradley v. State, 235 S.W.3d 808, 808-10 (Tex.
Crim. App. 2007) (Cochran, J., concurring in denial of review).

Second, there was ample reasonable suspicion. Sheriff’s deputies
obtained the phone number of a suspected heroin dealer (“Black”) from
an informant. RR. III-8. The deputies, pretending to be someone who
the drug dealer knew, called Black and set up a meeting. RR. V-88.
Black directed the deputies to an A & W restaurant and told them to
look for a black car. RR. III-9, 15.

The deputies saw only one black car in the parking lot when they
arrived at the A & W about 10 minutes following the phone call(s).
Stewart, 2015 WL 5449851, at *3. The deputies then watched as two
apparent drug transactions took place at the window of the black car.
RR. III-25-28; RR. V-49-50, 93. These observed apparent drug deals
were, by themselves, sufficient to establish reasonable suspicion.
Kirkland v. State, 400 S.W.3d 625, 626-30 (Tex.App. -- Beaumont 2013,
pet. ref’d) (reasonable suspicion found where police set up surveillance
of suspected methamphetamine dealers and saw apparent drug
transaction taking place involving occupants of suspect vehicle).

The deputy’s phone calls with the drug dealer were, by themselves,
sufficient to establish reasonable suspicion. United States v. Lyons, 687
F.3d 754, 765 (6th Cir. 2012) (reasonable suspicion finding was
supported, in part, by accomplice’s statement in wiretap that a woman
{i.e., the defendant} in a gray car with out-of-state plates would soon
arrive at a particular location); United States v. Flores, 571 F.3d 541,
544-45 (6th Cir. 2009) (reasonable suspicion to stop defendant Flores
was provided by wiretap of drug boss Spragling setting up drug deal);
United States v. Mayorquin, No. CR 12-1076-CAS, 2013 WL 5405704,
at *3 (C.D.Cal. Sept. 20, 2013) (reasonable suspicion for stop was
provided by wiretap -- even though defendant was not a declarant in
wiretap).

Certainly, taking these two circumstances together, there was
reasonable suspicion. Zone v. State, 84 S.W.3d 733, 736 & 738-39
(Tex.App. -- Houston [1st Dist.] 2002) (reasonable suspicion existed
                                    2
where {1} police received an anonymous tip that two men were selling
drugs near a gray car at a specific address; {2} officers saw transaction
near gray car at that address; and {3} suspect fled), aff’d on other
grounds, 118 S.W.3d 776 (Tex. Crim. App. 2003). On top of all that,
there was the original tip that led police to Black. Stewart, 2015 WL
5449851, at *3.

Finally, the court of appeals rejected Appellant’s characterization of
Black -- i.e., the stung drug dealer -- as an “anonymous tipster.”
Stewart, 2015 WL 5449851, at *3 (“There is no evidence in the record to
support an inference or finding that the person known as Black was
making an anonymous tip . . . .”). Appellant presents no legal argument
attacking that holding and instead merely continues to assert that the
sting target was a tipster. Pet. at 7 (“The phone calls to and from Black
can be characterized as nothing more than an anonymous tip.”).

Appellant’s fact-bound petition should be refused. Thank you.

Respectfully submitted,

SHAREN WILSON                   /s/ David M. Curl
Criminal District Attorney      DAVID M. CURL, Assistant
Tarrant County, Texas           State Bar No. 05254950
                                401 W. Belknap Street
DEBRA WINDSOR,                  Fort Worth, Texas 76196-0201
Assistant Criminal              (817) 884-1687
District Attorney               FAX (817) 884-1672
Chief, Post-Conviction          coaappellatealerts@tarrantcountytx.gov

                  CERTIFICATE OF COMPLIANCE

The number of words computed in accordance with TEX. R. APP. P.
9.4(i)(1) are 729.
                            /s/ David M. Curl____
                            DAVID M. CURL, Assistant
                            Criminal District Attorney


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                    CERTIFICATE OF SERVICE

One copy of the State's letter reply to Appellant's pro se petition for
discretionary review has been sent to (1) Appellant Androd Keon
Stewart at #1915287, Beto Unit, 1391 F.M. 3328, Tennessee Colony, TX
75880, and (2) Ms. Lisa McMinn, State Prosecuting Attorney at
information@spa.texas.gov, on this the 13th day of November 2015.

                                       /s/ David M. Curl___
                                       DAVID M. CURL, Assistant
                                       Criminal District Attorney




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