PD-1087-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/13/2015 2:36:05 PM February 13, 2015 Accepted 2/13/2015 2:40:07 PM ABEL ACOSTA CAUSE NO. PD-1087-14 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
______________________________
IKE ANTYON BRODNEX Appellant/Petitioner
V.
STATE OF TEXAS Appellee/Respondent _____________________________
From the Eleventh Court of Appeals, Eastland, Texas Appellate Cause No. 11-12-00076-CR
Tried in the 385TH District Court, Midland County, Texas Trial Cause No. CR38804
______________________________________
STATE’S BRIEF ON THE MERITS ______________________________
Teresa Clingman District Attorney, Midland County, Texas
Carolyn D. Thurmond Assistant District Attorney State Bar No. 00785104 500 North Loraine, Suite 200 Midland, Texas 79701 (432) 688-4420 voice (432) 688-4938 fax carolyn_thurmond@co.midland.tx.us TABLE OF CONTENTS
Table of Contents
TABLE OF CONTENTS ...........................................................................ii
INDEX OF AUTHORITIES ..................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT .................................. 1
STATEMENT OF THE CASE .................................................................. 1
STATEMENT OF PROCEDURAL HISTORY ......................................... 3
STATEMENT OF FACTS ......................................................................... 4
ARGUMENT AND AUTHORITIES ......................................................... 7
State’s Reply to Ground One .................................................................. 7
Summary of Argument .......................................................................... 7
Argument ............................................................................................... 8
A. Standard of Review for Motion to Suppress.................................. 8
B. Consensual encounter between Appellant and Officer Chesworth ............................................................................................................ 9
C. The Detention and Frisk of the Appellant .................................. 12
D. The Appellant Gave Consent to Search His Person ................... 17
ii CONCLUSION ........................................................................................ 18
PRAYER FOR RELIEF ........................................................................... 18
CERTIFICATE OF SERVICE................................................................. 20
CERTIFICATE OF COMPLIANCE ........................................................ 21
iii INDEX OF AUTHORITIES Cases
Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) ..................... 12
Arguellez v. State, 409 S.W.3d 657 (Tex. Crim. App. 2013) ..................... 8
Brodnex v. State, 11-12-00076-CR, 2014 Tex. App. LEXIS 7780, 2014 WL 3639133 (Tex. App.—Eastland 2014, pet. granted) ............. passim
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) .................. 17
Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) ....................... 8, 14
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 150, 181 L. Ed.2d 67, 2011 U.S. LEXIS 6188 (2011) .............................................................................................................. 13
Florida Royer, 460 U.S.491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) .. 11
Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991).................................................................................................... 10
Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010)......................... 13
Griffin v. State, 215 S.W.3d 403 (Tex. Crim. App. 2006) ....................... 17
Hamal v. State, 390 S.W.3d 302 (Tex. Crim. App. 2012) ....................... 14
Hiibel v. Sixth Judicial Dist. Court of Nev. Humboldt Cnty., 542 U.S. 177, 124 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) ................................... 10
Immigration and Naturalization Service v. Delgado, 466 U.S.210, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984) ........................................................ 10
Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim. App. 1984) ............... 16
iv Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) ........................................................................................ 17
State v. Castleberry, 332 S.W.3d 460 (Tex. Crim. App. 2011) ............ 9, 10
State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) ...... 9
State v. Mendoza, 365 S.W.3d 666 (Tex. Crim. App. 2012) .................... 13
State v. Woodward, 341 S.W.3d 404 (Tex. Crim. App. 2011) ......... 8, 9, 12
Strickland State, 923 S.W.2d 617 (Tex. App.--Houston [1st Dist.] 1995, no pet.);................................................................................................. 16
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968) ....................................................................................................... 16 Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2012) ................... 9
United States v. Santos, 403 F.3d 1120 (10th Cir. 2005)......................... 15
United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010)...................... 14
United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).................................................................................................... 13
Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010) ...................... 9
Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013)................ 9, 13, 16
v TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW the Appellee and Respondent, the State of Texas,
and files this State’s Brief on the Merits in response to the Brief of the
Appellant, and in support thereof would show the Court as follows:
STATEMENT REGARDING ORAL ARGUMENT
The State submits that oral argument is not necessary because
this Court may make its determination based on the briefs of the
parties and the Court of Appeals opinion. Therefore, the State does not
request oral argument in this cause.
STATEMENT OF THE CASE
Ike Antyon Brodnex, hereafter referred to as “Appellant,” was
indicted in the 385th District Court of Midland County, Texas, on
August 4, 2011, for the offenses of Tampering with Physical Evidence in
Count One and Possession of a Controlled Substance, to-wit: Cocaine,
in an amount of less than one gram in Count Two. Appellant was
1 subject to enhanced punishment because of two prior sequential felony
convictions. (CR1 9-12).
Appellant filed a Motion to Suppress Evidence. (CR 118-120). A
pre-trial hearing was held with the presentation of evidence and
argument of counsel. (RR26, 4-29). The trial court denied the motion by
written order. (CR 128). After the close of the hearing, Appellant waived
his right to trial by jury. (CR 130; RR6, 29).
The case proceeded to a bench trial on January 27, 2012. (RR7, 1).
Appellant was once again admonished regarding his right to trial by
jury. Appellant waived his right to trial by jury. (RR7, 9-15). Appellant
entered a plea of "not guilty" to Count One, Tampering with Evidence,
and “guilty” to Count Two, Possession of a Controlled Substance, to-wit
cocaine, in an amount of less than one gram. (RR7, 15-16). After the
presentation of evidence and argument of counsel, the trial court found
the Appellant not guilty of Count One, but guilty of Count Two as
charged in the indictment. (RR7, 60-61).
1 References to the Clerk’s Record are abbreviated as “CR”, followed by the page number. 2 References to the Reporter’s Record are abbreviated as “RR” followed by the
volume number and page number. 2 Appellant pled true to all three enhancement paragraphs in the
indictment. (RR7, 65-68). After presentation of the evidence and
argument of counsel, the judge sentenced Appellant to 20 years
imprisonment in the Texas Department of Criminal Justice
Institutional Division and no fine. (CR 131; RR7, 94). The sentence was
pronounced on January 27, 2012. (CR 131, RR7, 94). The judgment of
conviction was entered on February 1, 2012. (CR 131). Appellant timely
gave notice of appeal. (CR 139).
STATEMENT OF PROCEDURAL HISTORY
One issue was presented on direct appeal. On July 170, 2014, the
Eleventh Court of Appeals affirmed Appellant’s conviction for
possession of a controlled substance, to-wit: cocaine in Count Two.
Brodnex v. State, 11-12-00076-CR, 2014 Tex. App. LEXIS 7780, 2014
WL 3639133 (Tex. App.—Eastland 2014, pet. granted) (mem. op., not
designated for publication). A motion for rehearing was not filed in the
case. Appellant’s Petition for Discretionary Review was refused on
November 5, 2014. However, the Court on its own motion granted a
Petition for Discretionary Review on November 5, 2014. Appellant
3 timely filed the Brief of the Appellant on January 20, 2015. The State’s
response, State’s Brief on the Merits, is due on February 19, 2015.
Thus, this brief is timely filed.
STATEMENT OF FACTS
Officer Zachary Chesworth of the Midland Police Department was
on patrol duty around 2:00 a.m. on the early morning of June 7, 2011.
(RR6, 5; RR7, 20). As he neared the Delux Inn, he observed two subjects
leaving the hotel on foot. (RR6, 5; RR7, 21). He contacted the two
individuals on a nearby street. (RR6, 5; RR7, 21).
Officer Chesworth approached the male subject and asked his
name. Appellant identified himself, Ike Brodnex. (RR6, 5-6; RR7, 21).
Officer Chesworth testified, "Based on my training and experience as a
police officer at the City of Midland, I know that Mr. Brodnex is a
known criminal in the City of Midland." (RR6, 5-6; RR7, 22). Brodnex is
known for “[d]rug possession and things of that nature.” (RR6, 11).
Officer Chesworth acknowledged he did not have a criminal history
report for Brodnex at the time he contacted him. (RR6, 12).
4 Officer Chesworth placed Brodnex’s hands behind his back and
put them in handcuffs for officer safety. (RR6, 5-6; RR7, 22). Additional
reasons for Officer Chesworth’s concerns about safety were the area
where he found the couple is known for narcotic activity, the time of
night at 2:00 a.m., and he wasn’t sure of the location of his nearest
backup officer. (RR6, 6; RR7, 22).
Officer Chesworth at this point and took him in front of his police
car and in-car camera. (RR6, 7; RR7, 22). The defendant was not under
arrest. (RR6, 6; RR7, 22). Officer Chesworth started the pat-down
search for weapons. (RR6, 6; RR7, 23). In the course of the search
Officer Chesworth asked Brodnex if he had anything illegal on his
person. (RR6, 7; RR7, 22). Brodnex replied, “No.” Then Officer
Chesworth asked "do you mind if I check?" Brodnex responded “No.”
(RR6, 22; RR7, 23).
Officer Chesworth checked the waistband of Brodnex’s pants. He
noticed an orange plastic cigar tube protruding out of the “butt crack” of
Brodnex’s buttocks. (RR6, 7; RR7, 23). Officer Chesworth stated this is a
common method for concealing narcotics from officers on the streets.
(RR6, 7). He pulled out the tube, opened it and observed small rocks of a
5 white powdery a substance that appeared to be crack cocaine. (RR6, 7;
RR7, 23). Officer Chesworth asked if this was crack cocaine and
Brodnex confirmed it was cocaine. (RR6, 8; RR7, 23). Officer Chesworth
acknowledged he did not provide any Miranda warnings to Brodnex
prior to asking him the question about the crack cocaine. (RR6, 8; RR7,
23-24).
Officer Chesworth put the lid back on the cigar tube and placed it
on the front bumper of his police cruiser. (RR6, 8; RR7, 23-24). He
turned his attention to the female with the defendant. Officer
Chesworth saw movement by the defendant as he emptied the contents
from the tube onto the street. A struggle ensued until the defendant
was finally placed into the police car. (RR6, 8-9; RR7, 26). Officer
Chesworth testified on redirect that Brodnex attempted to conceal and
destroy the evidence. (RR7, 43).
State’s Exhibit 1-the DVD of the in-car camera recording of the
incident was admitted and played for the judge. (RR6, 21-22, 28; RR7,
27).
6 Bob Wheeler, the chemist for the Department of Public Safety,
testified he tested the contents of the cigar tube. The substance
contained cocaine and weighed 0.54 grams. (RR7, 41).
ARGUMENT AND AUTHORITIES State’s Reply to Ground One
A police officer may stop and briefly detain persons reasonably suspected of criminal activity. An officer’s knowledge of the suspect as a “known criminal” and other factors including walking in an area known for narcotics activity at 2:00 a.m. created reasonable suspicion for a limited pat-down search for officer safety. The Court of Appeals correctly affirmed the ruling of the trial court to deny the motion to suppress. Summary of Argument
The Court of Appeals in Eastland determined the initial encounter
between Appellant and the City of Midland police officer Zachary
Chesworth was consensual and he cooperated by identifying himself to
the officer. Officer Chesworth suspected criminal activity due to the
location of Appellant on the street in an area known for criminal
activities, particularly illegal drug activity, and the time of night at 2:00
a.m. Officer Chesworth determined Appellant was a known criminal in
Midland. Considering the totality circumstances, the officer had
7 reasonable suspicion of criminal activity and detained Appellant. For
the purpose of safety, Officer Chesworth placed Appellant in handcuffs
and initiated a pat-down search for weapons for officer safety. Officer
Chesworth requested and received Appellant’s consent for the search of
his person.
Argument
A. Standard of Review for Motion to Suppress
An appellate court reviews a denial of a motion to suppress under
the abuse of discretion standard with almost complete deference to the
trial court's rulings on questions of historical fact and application-of-
law-to-fact questions that turn on an evaluation of credibility and
demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App.
2013); Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). When
application-of-law-to-fact questions do not turn on credibility and
demeanor, the appellate court reviews the trial court's rulings on those
questions de novo. State v. Woodward, 341 S.W.3d 404, 410 (Tex. Crim.
App. 2011).Generally, appellate courts view the evidence in the light
most favorable to the trial judge’s ruling, and afford the prevailing
party “the strongest legitimate view of the evidence and all reasonable 8 inferences that may be drawn from that evidence.” Woodward, 341
S.W.3d at 410; citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008). The appellate court reviews de novo a trial judge’s
application of the law of search and seizure to the facts. Wade v. State,
422 S.W.3d 661, 667 (Tex. Crim. App. 2013); citing Valtierra v. State,
310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The appellate court must
uphold the trial court's ruling if it is supported by the record and correct
under any theory of law applicable to the case. Wade, 422 S.W.3d at
667; Valtierra, 310 S.W.3d at 447-48. When the trial court does not
issue findings of fact, as in this case, the appellate court is to imply
findings that support the trial court’s ruling if the evidence, viewed in
the light most favorable to the ruling, supports those findings.
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2012).
B. Consensual encounter between Appellant and Officer Chesworth
There are three types of encounters between the police and
citizens: “(1) consensual encounters, which require no objective
justification; (2) investigatory detentions, which require reasonable
suspicion; and (3) arrests, which require probable cause.” State v.
Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011) (citations
9 omitted). An officer may contact anyone and question him as well as
request identification and information from the citizen. Id.; Hiibel v.
Sixth Judicial Dist. Court of Nev. Humboldt Cnty., 542 U.S. 177, 185,
124 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); Florida v. Bostick, 501 U.S.
429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). A citizen is free to
terminate the encounter. Castleberry, 332 S.W.3d at 466. The
consensual encounter does not implicate the Fourth Amendment and its
protections. Id. The fact the citizen complied with the request for
identification does not negate the consensual nature of the encounter.
Id., citing, Immigration and Naturalization Service v. Delgado, 466
U.S.210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984).
Appellant contended at the Court of Appeals and before this Court
that Officer Chesworth was required to have reasonable suspicion that
criminal activity was afoot in order to initiate contact with Appellant
and the woman with him. (“At no point does the officer testify the
reason for making contact with these two individuals.” Brief of the
Appellant pages 6-8). The Court of Appeals correctly held Officer
Chesworth initiated contact with Appellant on a street in a public place
and this did not implicate Fourth Amendment protections. Brodnex,
10 2014 Tex. App. LEXIS 7780 at *6. The Court of Appeals cited Florida v.
Royer:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Florida Royer, 460 U.S.491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229
(1983).
The facts in this case show Officer Chesworth observed two
individuals at 2:00 a.m. in the morning leaving the Delux Inn, which is
in an area known for narcotics activity. (RR6, 5-6; RR7, 21-22). He
contacted the couple and asked Appellant his name. Appellant
identified himself to the officer. (RR6, 5-6; RR7, 21). At this point in the
encounter between Officer Chesworth and Appellant there any is not
suggestion that the encounter was not consensual, such as an officer
drawing his weapon. Appellant elected not to testify at the pretrial
suppression hearing. At trial Appellant testified he cooperated with
Officer Chesworth and identified himself. (RR7, 46).
11 C. The Detention and Frisk of the Appellant
In this case, the detention and subsequent search of Appellant
occurred without a warrant. (RR6, 4). Thus, the burden of proof is on
the State to prove reasonableness of the seizure. Amador v. State, 275
S.W.3d 872, 878 (Tex. Crim. App. 2009).
The Court of Appeals determined “Officer Chesworth’s encounter
with Appellant quickly escalated to an investigative detention when he
handcuffed Appellant after Appellant identified himself.” Brodnex, 2014
Tex. App. LEXIS 7780 at *6-7. There is not a bright –line rule that
governs when a consensual encounter becomes a seizure. Woodward,
341 S.W.3d at 411 (citations omitted). The encounter is no longer
consensual when the officer through force or showing of authority
restrains a citizen’s liberty. Id. At this point the encounter becomes a
detention or arrest, both of which are seizures under the Fourth
Amendment. Id. When there is a detention, the reviewing court must
decide if the detaining officer had reasonable suspicion. Id. "A police
officer has reasonable suspicion to detain if he has specific, articulable
facts that, combined with rational inferences from those facts, would
lead him reasonably to conclude that the person detained is, has been,
12 or soon will be engaged in criminal activity.” Derichsweiler v. State, 348
S.W.3d 906, 914 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 150, 181
L. Ed.2d 67, 2011 U.S. LEXIS 6188 (2011) (citations omitted). This
standard is an objective one that disregards the actual subjective intent
of the arresting officer and looks, instead, to whether there was an
objectively justifiable basis for the detention. It also looks to the totality
of the circumstances; those circumstances may all seem innocent
enough in isolation, but if they combine to reasonably suggest the
imminence of criminal conduct, an investigative detention is justified.
"[T]he relevant inquiry is not whether particular conduct is innocent or
criminal, but the degree of suspicion that attaches to particular non-
criminal acts." Wade, 422 S.W.3d at 668; Derichsweiler, 348 S.W.3d at
914. The standard requires only “some minimal level of objective
justification” for the stop. Foster v. State, 326 S.W.3d 609, 614 (Tex.
Crim. App. 2010) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109
S. Ct. 1581, 104 L. Ed. 2d 1 (1989). Whether the facts known to the
officer amount to reasonable suspicion is a mixed question of law and
fact subject to de novo review. State v. Mendoza, 365 S.W.3d 666, 669-70
(Tex. Crim. App. 2012).
13 The Court of Appeals in its opinion discusses the three factors
present: the area’s narcotic activity, time of day and the officer’s
familiarity that Appellant is a “known criminal.” Brodnex, 2014 Tex.
App. LEXIS 7780 at *8-9. The Court of Criminal Appeals has held that
individually, these factors do not establish reasonable suspicion to for
an investigative detention. Id.; citing Hamal v. State, 390 S.W.3d 302,
308 (Tex. Crim. App. 2012) (prior criminal record); Crain, 315 S.W.3d at
53 (time of day and level of criminal activity in the area). However,
these three factors may be considered in determining the existence of
reasonable suspicion. Hamal, 390 S.W.3d at 308; Crain, 315 S.W.3d at
53; Brodnex at *8-9.
This Court stated in Hamal, “a prior criminal record does not
itself establish reasonable suspicion but it is a factor that may be
considered.” Hamal, 390 S.W.3d at 308 (citations omitted). Deception
regarding one’s own criminal record is another factor that can
contribute to reasonable suspicion. Id. “[I]n conjunction with other
factors, criminal history contributes powerfully to the reasonable
suspicion calculus.” United States v. Simpson, 609 F.3d 1140, 1147 (10th
Cir. 2010) (quoting United States v. Santos, 403 F.3d 1120, 1132 (10th
14 Cir. 2005). Although a person with a criminal record should not be
detained based on his criminal record itself, such a record is a factor
that may justify further detention and that may cast a suspicious light
on other seemingly innocent behavior. See Id.
Officer Chesworth testified that when he learned Appellant’s
identity, he recognized him as “a known criminal in the city of
Midland.” (RR6, 5-6). Officer Chesworth was concerned about his
personal safety and at that point placed Appellant in handcuffs. (RR6,
6). Specifically, Appellant was known to police officers for, “Drug
possession and things of that nature.” (RR6, 11). Officer Chesworth
admitted he did not have personal knowledge Appellant’s criminal
history prior to coming into contact with him. (RR6 12). However,
Appellant being a known criminal to Officer Chesworth was a factor of
concern for his personal safety. Specifically, Appellant showed a lack of
regard for the law and threat to his safety to keep himself out of
trouble. (RR6 19-20).
Thus, in addition to the other factors, and presence of another
person with Appellant, Officer Chesworth placed him handcuffs and
requested to perform a pat-down for weapons. (RR6, 6-7). "A pat down
15 search during a detention is permissible when the police officer
reasonably suspects he is dealing with an armed and dangerous
individual. Strickland State, 923 S.W.2d 617 (Tex. App.--Houston [1st
Dist.] 1995, no pet.); citing Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868,
1880, 20 L. Ed. 2d 889 (1968). The officer may frisk the individual to
determine if the person is, in fact, carrying a weapon and, if so, to
neutralize the threat of physical harm. Terry, 392 U.S. at 24; Wade, 422
S.W.3d at 669.
The officer does not have to be absolutely certain that the
individual is armed, nor does he have to have probable cause to arrest.
Id. Rather, the issue is whether a reasonably prudent person in the
same circumstances would be warranted in the belief that his or her
safety or that of others is in danger. Id. The record must contain
'specific and articulable facts' that, when taken together with rational
inferences from those facts, would warrant a self-protective search for
weapons." Id. The information known by the officer at the time of the
officer’s actions is to be considered, including any prior criminal record
of the appellant. See Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim.
App. 1984). Furthermore, it has been held that it is objectively
16 reasonable for a police officer to believe an individual involved in the
drug business is armed and dangerous. Griffin v. State, 215 S.W.3d 403,
409 (Tex. Crim. App. 2006); citing Carmouche v. State, 10 S.W.3d 323,
330 (Tex. Crim. App. 2000).
D. The Appellant Gave Consent to Search His Person
The Court of Appeals also held Officer Chesworth sought and
obtained Appellant’s consent at the outset of the pat-down search.
Brodnex at *10-11. “Consent to search is one of the specific and ‘well-
established exceptions to the constitutional requirements of both a
warrant and probable cause.’” Id., citing Carmouche, 10 S.W.3d at 331;
see Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L.
Ed. 2d 854 (1973). This Court should defer to the trial court’s implied
finding Appellant consented to search since the determination relies
heavily on the credibility of Officer Chesworth and the review of video
which supports the implied finding of Appellant’s consent to search.
Brodnex at *11. It should also be noted that Appellant does not present
a claim that his consent was coerced. Brodnex at *11.
17 CONCLUSION
The initial encounter between Appellant and Officer Chesworth
was consensual. In viewing the totality of the circumstances, the trial
court found Officer Chesworth had a reasonable suspicion to conduct a
pat-down search for weapons for the reason of officer safety due to the
officer’s knowledge Appellant was a “known criminal” found in an area
known for narcotic activity at 2:00 a.m.. This meets the minimal level of
objective justification for a stop. The Court of Appeals decision to affirm
the trial court’s denial of Appellant’s motion to suppress should be
affirmed by this Court.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the State prays
the Court of Criminal Appeals affirm the judgment of the Court of
Appeals.
18 Respectfully submitted,
Teresa Clingman District Attorney of Midland County, Texas
By:
/S/ Carolyn D. Thurmond Carolyn D. Thurmond Assistant District Attorney State Bar No. 00785104 500 North Loraine, Suite 200 Midland, Texas 79701 (432) 688-4938 fax (432) 688-4420 voice carolyn_thurmond@co.midland.tx.us
19 CERTIFICATE OF SERVICE
I, Carolyn D. Thurmond, do hereby certify that on the 13th day of
February 2015, I sent a true and correct copy of the foregoing State’s
Brief on the Merits by United States Mail, hand delivery or EServe or
email to the following entities:
Lisa McMinn State Prosecuting Attorney P.O. Box 13046 Capitol Station Austin, TX 78711 Information@spa.texas.gov
Raymond K. Fivecoat 214 West Texas, Suite 811 Midland TX, 79701 Via email Attorney for Appellant
/S/ Carolyn D. Thurmond _____________________________ Carolyn D. Thurmond Assistant District Attorney
20 CERTIFICATE OF COMPLIANCE
I certify the State’s Brief on the Merits was prepared with
Microsoft Word 2010 and that according to that program’s word-count
function, the sections covered by TEX. R. APP. P. 9.4(i)(1) contain 2,884
words. I further certify the body text is Century Schoolbook 14 point
font and the footnote text is 12 point font.
/S/ Carolyn D. Thurmond ____________________________ Carolyn D. Thurmond Assistant District Attorney