ACCEPTED 12-15-00131-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 7/30/2015 1:53:38 PM CATHY LUSK CLERK
CASE NUMBERS: 12-15-00131-CR ______________________________________________________________________________ FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE 7/30/2015 1:53:38 PM CATHY S. LUSK COURT OF APPEALS FOR THE Clerk
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS ______________________________________________________________________________
ERIC CLARK ALLEN V. THE STATE OF TEXAS ______________________________________________________________________________
From the District Court
159th Judicial District
Angelina County, Texas
Trial Case Numbers: 2014-0063
The Honorable Paul E. White, Judge Presiding
______________________________________________________________________________
BRIEF OF THE APPELLANT, ERIC CLARK ALLEN. ______________________________________________________________________________
Respectfully submitted,
JERRY N. WHITEKER State Bar No. 21361500 P.O. Box 1443 Lufkin, Texas 75902-1443 Tel: (936) 632-5551 Fax: (936) 632-9550
COURT APPOINTED ATTORNEY FOR THE APPELLANT
NO ORAL ARGUMENT REQUESTED PREAMBLE
TO THE HONORABLE COURT:
Appellant before the Court of Appeals, Eric Clark Allen, Appellant,
respectfully submits this, his Brief, in appealing the denial of his Motion
to Suppress Evidence in cause number 2014-0063 from the 159th District Court,
Angelina County, Texas, the Honorable Paul White, Presiding, which resulted
in a conviction for the felony offenses of Counts I through XIII possession
or promotion of child pornography (CR 55; 78).
In this Brief, Eric Clark Allen shall be referred to as “Appellant” and
THE STATE OF TEXAS, Appellee herein, shall be referred to as “State.” The
Clerk’s Record will be cited by page as “CR____” and the Reporter’s Record
will be cited by volume and page as “RR __/__”.
ii IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. Pro. 38.1(a), Eric Clark Allen hereby submits
a list of parties and counsel interested in this case:
Appellant and Counsel:
Eric Clark Allen c/o Jerry N. Whiteker State Bar No. 21361500 406 N. First P.O. Box 1443 Lufkin, Texas 75902 Telephone: (936) 632-5551 Fax: (935) 632-9550
State and its Counsel:
State of Texas c/o April Ayers-Perez Assistant District Attorney Angelina County State Bar No. 24090975 Angelina County Courthouse P.O. Box 908 Lufkin, Texas 75902 Telephone: (936) 632-5090 Fax: (936) 637-2818
iii TABLE OF CONTENTS
PREAMBLE .....................................................................ii
IDENTITY OF PARTIES AND COUNSEL .................................................iii
TABLE OF CONTENTS..............................................................iv
INDEX OF AUTHORITIES CITED .......................................................v
CASES .................................................................. V
STATUTES ................................................................ V
TEXAS RULES OF APPELLATE PROCEDURE ........................................... V
STATEMENT OF THE CASE ...........................................................1
STATEMENT REGARDING ORAL ARGUMENT .................................................1
ISSUES PRESENTED ...............................................................1
STATEMENT OF FACTS ..............................................................1
SUMMARY OF THE ARGUMENT ..........................................................2
ARGUMENT ......................................................................3
PRAYER........................................................................7
CERTIFICATE OF SERVICE...........................................................8
CERTIFICATE OF COMPLIANCE ........................................................9
APPENDIX
iv INDEX OF AUTHORITIES
CASES
Arguellez v. State, Nos. PD-0997-12,PD-0998-12 (Tex.Crim.App.Sept. 18,2013)..5
Johnson v. United States, 255 U.S. 313 (1921)................................6
Kentucky v. King, 563 US ___,___.............................................3
Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim. App.2004)....................3
Riley v. California, 573 U.S. ____, 134 S. Ct. 2473,189 L. Ed.2d 430 (2014).................3
Schneckloth v. Bustamante, 412 U.S. 218(1973)................................5
Swain v. State, 181 S.W. 3d. 359, 365 (Tex. Crim. App. 2005).................3
STATUTES
TEX. CONST. Art. 1, Sec.9....................................................3
U.S. CONST., Amend. 4........................................................3
v STATEMENT OF THE CASE
Appellant was charged by Indictment with thirteen counts of the third
degree offense possession or promotion of child pornography (CR 00019).
Appellant challenged the search and seizure of his cellular telephone during
a hearing on his motion to suppress evidence. Following a hearing on the
motion to suppress, and the trial court’s review of evidence, the trial court
denied the motion to suppress. Appellant pled no contest to the offenses
charged, and the trial court sentenced Appellant to seven years confinement
in the Institutional Division of the Texas Department of Criminal Justice.
The trial court, however, granted its permission for Appellant to appeal its
ruling denying the motion to suppress evidence and granted (CR 00007),
Appellant a personal recognizance appeal bond (CR 00080, 00081).
Appellant filed his notice of appeal to the Twelfth Court of Appeal on May
13, 2015 (CR 00082,00083).
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not believe oral argument is called for in this case.
ISSUES PRESENTED
APPELLANT’S POINT OF ERROR
The trial court erred in denying Appellant’s Motion to Suppress
Evidence because the search of Appellant’s cellular telephone was conducted
without a warrant, without probable cause and in violation of Appellants
right to privacy.
STATEMENT OF FACTS
On October 23, 2014, the Honorable Paul E. White conducted a hearing on
Appellant’s Motion to Suppress and denied said motion on October 24, 2015 (CR 1 00055, RR 2/71). On January 26, 2015, the Honorable Paul E. White began
conducting a hearing for adjudication sentencing wherein the Appellant pled
no contest to the offense of a third degree felony (RR 3, 4). However the
adjudication proceedings were recessed and continued on May 1, 2015, at which
time the Appellant was sentenced to seven (7) years confinement to Texas
Department of Criminal Justice, Institutional Division (CR 00078). During
the Sentencing Hearing for Appellant, the Honorable Paul E. White referred to
the PSI report yet did not enter it into evidence (CR 00065, RR 3/4). On
Wednesday, May 13, 2015, Appellant filed his Notice to Appeal (CR 00082.
SUMMARY OF THE ARGUMENT
On December 3, 2013, Appellant was confronted by a two uniformed
Huntington ISD officers after at a Huntington High School basketball game.
Appellant was watched by Officer Mike Jenkins throughout the basketball game
and upon the conclusion of said game, both Officer Mike Jenkins and Officer
Reynolds. After briefly speaking with Appellant, Officer Mike Jenkins
testified at the hearing on the motion to suppress that he asked Appellant to
speak to him (Officer Jenkins) outside in an area out of sight of the public
and further asked the Appellant to sit in his patrol car (RR 2/17), at which
time he obtained Appellant’s cellular telephone by telling the Appellant that
if he did not give the Officer his telephone he would be taken to jail (RR
2/8). No warrant was produced for the telephone at the time that Officer
Jenkins conducted the initial search which he testified he had the
Appellant’s telephone 5 minutes and was 15 to 20 pictures into the camera
roll before finding what purported to be pornographic images (RR 2/20).
Appellant asserts that the trial court erred in denying his motion to
suppress the evidence obtained and the evidence seized after the search of
his cellular telephone because the search was conducted without a warrant,
without probable cause, and in violation of his constitutional rights. 2 ARGUMENT
The trial court erred in denying Appellant’s Motion to Suppress
Evidence because the search of Appellant’s cellular telephone was conducted
without voluntary consent, without warrant, without probable cause and in
violation of Appellants right to privacy.
The Fourth Amendment to the United States Constitution reads:
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.
U.S. CONST. Amend 4, Its Texas counterpart, Article I, Section 9 of the
Texas Constitution reads:
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.
The Fourth Amendment protects against unreasonable searches and
seizures by government officials.
The standard of review in this case is one of abuse of discretion.
Swain v. State, 181 S.W. 3d. 359, 365 (Tex.Crim.App.2005). Further, the
Court must consider the totality of the circumstances in making a decision.
Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim. App.2004).
A warrantless search is reasonable only if it falls within a specific
exception to the Fourth Amendment’s warrant requirement. Kentucky v. King,
563 US ___,___. Officers may examine the phone’s physical aspects to ensure
that it will not be used as a weapon, but data on the phone can endanger no
one. Further, in Riley v. California, 573 U.S. ____, 134 S. Ct. 2473,189 L.
Ed.2d 430 (2014) the Court ruled that the information on a cell phone is not
immune from search but that a warrant is generally required before such a 3 search, thus distinguishing a cell phone from automobiles and residences as
it may contain sensitive and most personal data in the greatest detail.
While it is not disputed that the officer’s search of the contents of
Appellant’s cell phone constituted a search, the question then turns on
whether or not there existed probable cause to believe a crime had occurred
that justified said search, and whether or not consent was given by Appellant
for the search of the cell phone.
Probable Cause: The officer testified at the hearing on the motion to
suppress, that the night prior to the date of contact with Appellant, he was
approached by a coach from another district within the county and advised
Appellant had been given a criminal trespass not to come to their campus for
allegedly taking inappropriate pictures of their cheerleaders and just
students in general (RR 2/14). Butressed with that hearsay information, the
Officer testified that the night in question, when he saw Appellant arrive at
the basketball game, Appellant entered the gymnasium and sat in the student
section but the Appellant never stood up, and never paid attention to the
basketball game but rather remained seated and had his phone in his hand the
entire time, although he could not tell if the Appellant had taken any
photographs (RR 2/16). Upon the conclusion of the basketball game the
Appellant was asked by the officer to step out back and sit in his patrol car
to talk. The officer testified that he basically detained the Appellant and
kept him there to investigate the crimes based on information he got from
other districts (RR 2/18), although later the Officer testified that he did
not witness Appellant commit a crime the night in question (RR 2/26) and that
he felt the Appellant had been taking inappropriate photographs. Again the
officer contradicted himself in that previously he testified that he could
not tell if the Appellant had taken any photographs (RR 2/16). Further,
Officer Jones also testified at the sentencing hearing on January 26, 2015 4 that while he did testify at the hearing on the Motion to Suppress, his
testimony varied essentially from on hearing to his testimony at the second
(RR 3/9).
It is important to note that simply being a public place taking
pictures or being engaged in your cell phone and not involved in the sporting
event at hand, does not in any way suggest that the Appellant was, had been,
or soon would be, engaged in criminal activity. Arguellez v. State, Nos. PD-
0997-12,PD-0998-12 (Tex. Crim. App. Sept. 18, 2013).
Voluntariness of Consent: The officer further testified that once the
Appellant voluntarily handed him the cell phone, something the Appellant
disputes, he had the telephone about five minutes before finding what
purported to be a pornographic image of a child ten to fifteen years of age,
completely naked and her legs spread to where you could see her vagina. (RR
2/20). No images or photographs of local students were found within the cell
phone contents. It was at that point that Officer Jenkins terminated the
encounter and seized the telephone so he could obtain a warrant before
proceeding any further.
The decision of voluntariness must be made from a totality of
circumstances in which factors to be considered are the characteristics of
the accused and the details of the police confrontation, including his youth,
lack of education, low intelligence, lack of any advice given to him of his
constitutional rights, the length of detention if any, the repeated efforts
by police to secure that consent, the prolonged nature of that effort, any
physical punishment or deprivation and others. Schneckloth v. Bustamante, 412
U.S. 218(1973).
Further, consent granted in submission to authority rather than an
understanding of intentional waiver of a constitutional right is not
voluntary consent. Johnson v. United States, 255 U.S. 313 (1921) 5 Appellant testified that officers told him if he did not give them his
cell phone, they would take him to jail (RR 2/8) and when questioned
specifically if he turned over the telephone to the officer voluntarily,
Appellant testified he did not (RR 2/10). His consent to search his cellular
telephone was done under the submission to the authorities who had him
sitting in squad car in the back of the school with no other witnesses.
Later, Investigator Jones testified that consent on December 3, 2013 would be
a problem as there was no written consent and no warrant for the search of
the telephone (RR 2/63). Investigator Jones also testified that on December
4, 2013, he met Appellant with a recording device to obtain consent to search
his residence after a judge denied a warrant stating there was no positive
link between the residence and the cell phone (RR 2/64). On the recording
the Investigator goes as far as to question the Appellant as to whether or
not he granted consent to search the telephone the previous night. (RR2/65).
However, the recording itself is a futile attempt by authorities to
memorialize any type of consent that would have been necessary in order to
make the cell phone search on December 3, 2013 and its findings legal after
the fact.
At the sentencing hearing, Jean Stanley, a court appointed licensed
professional counselor, and also a licensed forensic mental health
specialist, testified that she conducted a forensic evaluation of Appellant
and made a report of her findings and conclusions but although offered as
evidence, without objection, and referenced during the sentencing, the report
was not admitted (RR 3/3).
Further, Dr. Stanley testified that Appellant was born with Pierre
Robins Syndrome, underwent several surgeries and as a result was subjected to
bullying and abuse as a child making him socially inept (RR 3/31,32). Dr.
Stanley also testified that Appellant had an IQ of 75 which is below average 6 for someone his age (RR 3/18). Although Appellant attended college, his GPA
was 1.9 and he also enlisted in the US Army but did not make it because he
missed his mother and home, indicating he struggled (RR 3/24). In reality
the peculiar activity that Officer Jenkins testified he observed in Appellant
in all honesty may have simply been a circumstance of the Appellant’s
appearance due to his birth defect and his social awkwardness.
By removing Appellant away from public view and witnesses, and by
threatening Appellant to take him to jail should he deny access to the
telephone, the consent to search his telephone was by no means freely and
voluntarily given.
The trial court erred in denying Appellants Motion to Suppress evidence
in that the burden of proof as to probable cause for a warrantless search lay
with the State to show he had reason to believe a crime was being committed
or about to be committed by the actions of Appellant and in the absence of
probable cause, then consent must be clearly obtained before infringing upon
Appellant’s expectation to privacy. The State failed to show that there was
probable cause and failed to show that consent was freely and voluntarily
given in view of the totality of the circumstances.
PRAYER
WHEREFORE, PREMISES CONSIDERED, should the Court of Appeals to sustain
the point of error herein above detailed and reverse the judgment of the
trial court and either render a judgment for Appellant or remand the case for
a further proceedings in this case.
7 JERRY N. WHITEKER
Court Appointed Attorney for Appellant State Bar No.21361500 406 N. First Street P.O. Box 1443 Lufkin, Texas 75902-1443 Tel: (936) 632-5551 Fax: (936) 632-9550
By:_/s/Jerry N. Whiteker___________ Jerry N. Whiteker
CERTIFICATE OF SERVICE
This is to certify that on July 30, 2015, a true and correct copy of the above and foregoing Brief for Appellant was served by electronic delivery on Assistant District Attorney of Angelina County, Texas, April Ayers-Perez, P.O. Box 908 Lufkin, Texas 75902, (936) 632-5090 and by certified mail, return receipt requested, to Mr. Eric Clark Allen, TDCJ Number 1998968, Byrd Unit, 21 FM 247, Huntsville, Texas 77320.
SIGNED this 30 day of July, 2015.
_/s/Jerry N. Whiteker___________ JERRY N. WHITEKER Court Appointed Attorney for Appellant State Bar No.21361500 406 N. First Street P.O. Box 1443 Lufkin, Texas 75902-1443 Tel: (936) 632-5551 Fax: (936) 632-9550
8 CERTIFICATE OF COMPLIANCE
I, Jerry N. Whiteker, attorney for Appellant, Eric Clark Allen,
certify that this document was generated by a computer using Microsoft Word
2007 which indicates that the word count of this document is 2,105 per Tex.
R. App. P. 9.4(i)(3).
__/s/Jerry N. Whiteker _________ JERRY N. WHITEKER Court Appointed Attorney for Appellant State Bar No.21361500 406 N. First Street P.O. Box 1443 Lufkin, Texas 75902-1443 Tel: (936) 632-5551 Fax: (936) 632-9550 CASE NUMBER: 12-15-00131-CR ______________________________________________________________________________
IN THE
COURT OF APPEALS FOR THE
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS ______________________________________________________________________________
ERIC CLARK ALLEN V. THE STATE OF TEXAS ______________________________________________________________________________
Trial Case Number: 2014-0063
The Honorable Paul White, Judge Presiding
______________________________________________________________________________
APPELLANT’S APPENDIX ______________________________________________________________________________ APPENDIX TABLE OF CONTENTS
DOCUMENT TAB
TEXT OF CODES CITED. ............................................................1
A-1 CODES CITED
TEX. CONST. Art. 1, Sec.9 SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, 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.
U.S. Constitution - Amendment 4
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 Warrants 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.
A-2