ACCEPTED 03-14-00155-CR 3779406 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/15/2015 11:13:33 AM JEFFREY D. KYLE CLERK NO. 03-14-0155-CR
FILED IN 3rd COURT OF APPEALS * * * AUSTIN, TEXAS 1/15/2015 11:13:33 AM In The 3rd District JEFFREY D. KYLE Clerk Court of Appeals of Texas
* * *
Jeron DeAngelo Neal
v.
The State of Texas
Appealed from the 390th District Court Trial Court Cause No. D-1-DC-12-205121
___________________________________________________________________
APPELLANT’S BRIEF ___________________________________________________________________
John S. Butler State Bar No. 03526150 700 Lavaca Street, Suite 1400 Austin, Texas 78701 Telephone (512) 472-3887 Facsimile (512) 233-1787 Email butler@lawyer.com ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED Identities of Parties and Counsel
Appellant: Jeron DeAngelo Neal
Trial Counsel: Darla Davis P O Box 28338 Austin, Texas 78755 -and- Mark Sampson 605 West Oltorf Street Austin, Texas 78704
Appellee: The State of Texas
Appellant Counsel and Trial Counsel: Rosemary Lehmberg Travis County District Attorney P O Box 1748 Austin, Texas 78767 -by- Monica Flores -and- Steve Brand Assistant District Attorneys
Trial Judge: Hon. Julie Kocurek
-2- Table of Contents
Identity of Parties and Counsel …2
Table of Contents …3
Index of Authorities …4
Statement Regarding Oral Argument …4
Statement of the Case …4
Issues Presented …5
Statement of the Facts …5
Summary of the Argument …7
Argument …7
Prayer for Relief …10
Certificate of Compliance …12
Certificate of Service …12
-3- Index of Authorities
Wong Sun v. United States, 371 U.S. 471 (1963) …9
Silverthorne Lumber Co. v. United States, 251 U.S. 385,392 (1920). …9
Weeks v. United States, 232 U.S. 383 (1914). …9
State v. Story, Tex. Crim. App. NO. PD-0590-13 (October 15, 2014) …10
Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). …10
Statement Regarding Oral Argument
Due to the fact-intensive nature of the arguments presented herein,
Appellant requests that the Court hear oral argument.
Statement of the Case
On September 28, 2012, Appellant was arrested for Aggravated Robbery with
a Deadly Weapon. At a pretrial hearing the trial court granted Appellant’s motion to
suppress evidence seized from Appellant’s vehicle. However, the trial court denied
Appellant’s motion to suppress evidence seized from Appellant’s person at the
scene and at the central booking facility. The case went to trial, whereupon
Appellant was found guilty and sentenced to 22 ½ years in prison. Appellant
-4- appeals the trial court’s denial of his motion to suppress evidence seized from his
person, and the judgment and sentence obtained with the use of said evidence.
Issues Presented
The trial court erred in denying Appellant’s motion to suppress evidence
obtained in the search of Appellant’s person.
Statement of Facts
On September 28, 2012, at around 2:00 a.m., Alicia Otto and three friends
were at a sports bar in north Austin when a man, later identified as Appellant,
approached their table and demanded their money and property. The man grabbed
Mr. Otto’s purse and ran away. A bartender pursued the man, but turned back when
he heard a gunshot. The police interviewed the victim and witnesses, and obtained
surveillance videos from the bar and a nearby Target store. This second video
shows the robber getting into a black SUV.
Later that morning, around 8:00 a.m., police responded to a “disturbance”
call. Patsy Harnage (Appellant’s mother) had reported that she and her son had
-5- gotten into an argument the previous day, and that he was parked in front of a
daycare center where she worked. Upon arrival at the location, they had “minimal
information on what the subject was wearing or driving, et cetera.” (Reporter’s
Record vol.2 p.57). The police saw no disturbance, and were initially unable to
locate either Ms. Harnage or her son. They eventually located a black male in a
black Ford Explorer. When they approached the SUV, they found Appellant asleep
in the driver’s seat and another person asleep in the back. When the officer tapped
on the window to gain Appellant’s attention, Appellant woke up “kind of nervous”
(Reporter’s Record v.2 p.27) and tried to start the vehicle. The officer then opened
the door had Appellant exit the vehicle. The officer said he saw a hand rolled
cigarette drop from Appellant’s hand. The officer frisked Appellant for weapons,
finding none. Appellant was handcuffed and placed in in the back of a patrol unit.
Appellant was later arrested for possession of marijuana and for outstanding
warrant(s) and taken to jail, where he was searched. Several credit cards were found
in his possession, with the name of the robbery victim on them. These were
subsequently introduced as evidence against Appellant at his trial.
A jury convicted Appellant of Aggravated Robbery with a Deadly Weapon,
and sentenced him to 22 ½ years in prison.
-6- Summary of the Argument
There was insufficient probable cause for Appellant’s arrest, and therefore
any evidence seized as a result thereof was illegally obtained. The trial court erred in
denying Appellant’s motion to suppress the evidence seized from Appellant.
Argument
Justin Flanery of the Austin Police Department was Appellant’s arresting
officer. His testimony as to his reasons for arresting Appellant lacked credibility,
contradicting his own testimony, testimony of other witnesses, and the information
provided to him by other police officers. The arresting officer was incorrect in
stating that there was an outstanding warrant for Appellant’s arrest. There was
insufficient evidence to support the arresting officer’s conclusory statement that
Appellant possessed a marijuana cigarette.
At one point he testified that Appellant’s mother (who initially called the
police) said she saw Appellant with a gun (Reporter’s Record v.2 p.18). He later
testified that she told him “her husband saw [Appellant] with at her house
yesterday.” (Reporter’s Record v.2 p.57).
The officer testified that he spoke with Appellant’s mother before detaining
Appellant. (Reporter’s Record v.2 p.23) and that she pointed out her son to the
-7- officer: “Question: So she actually put eyes on the vehicle and told you, ‘That’s his
vehicle?’ Answer: Yes.” (Reporter’s Record v.2 p.26). He later testified that he
detained Appellant before ever speaking with Appellant’s mother (v.2 p.58).
The officer testified that his department’s Computer Aided Dispatch (CAD)
confirmed that there was an active warrant for Appellant’s arrest (Court Reporter’s
Record v.2 pp.32-33), but later testified that there was in fact no such confirmation,
or any indication of a warrant in the CAD report (Reporter’s Record v.2 pp. 50 and
62).
James Hyatt, an Austin Police Department officer who investigated the
robbery, testified that the witnesses saw the robber “get into a black Jeep Liberty
and leave the scene.” (Reporter’s Record v.2 p. 13).
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ACCEPTED 03-14-00155-CR 3779406 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/15/2015 11:13:33 AM JEFFREY D. KYLE CLERK NO. 03-14-0155-CR
FILED IN 3rd COURT OF APPEALS * * * AUSTIN, TEXAS 1/15/2015 11:13:33 AM In The 3rd District JEFFREY D. KYLE Clerk Court of Appeals of Texas
* * *
Jeron DeAngelo Neal
v.
The State of Texas
Appealed from the 390th District Court Trial Court Cause No. D-1-DC-12-205121
___________________________________________________________________
APPELLANT’S BRIEF ___________________________________________________________________
John S. Butler State Bar No. 03526150 700 Lavaca Street, Suite 1400 Austin, Texas 78701 Telephone (512) 472-3887 Facsimile (512) 233-1787 Email butler@lawyer.com ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED Identities of Parties and Counsel
Appellant: Jeron DeAngelo Neal
Trial Counsel: Darla Davis P O Box 28338 Austin, Texas 78755 -and- Mark Sampson 605 West Oltorf Street Austin, Texas 78704
Appellee: The State of Texas
Appellant Counsel and Trial Counsel: Rosemary Lehmberg Travis County District Attorney P O Box 1748 Austin, Texas 78767 -by- Monica Flores -and- Steve Brand Assistant District Attorneys
Trial Judge: Hon. Julie Kocurek
-2- Table of Contents
Identity of Parties and Counsel …2
Table of Contents …3
Index of Authorities …4
Statement Regarding Oral Argument …4
Statement of the Case …4
Issues Presented …5
Statement of the Facts …5
Summary of the Argument …7
Argument …7
Prayer for Relief …10
Certificate of Compliance …12
Certificate of Service …12
-3- Index of Authorities
Wong Sun v. United States, 371 U.S. 471 (1963) …9
Silverthorne Lumber Co. v. United States, 251 U.S. 385,392 (1920). …9
Weeks v. United States, 232 U.S. 383 (1914). …9
State v. Story, Tex. Crim. App. NO. PD-0590-13 (October 15, 2014) …10
Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). …10
Statement Regarding Oral Argument
Due to the fact-intensive nature of the arguments presented herein,
Appellant requests that the Court hear oral argument.
Statement of the Case
On September 28, 2012, Appellant was arrested for Aggravated Robbery with
a Deadly Weapon. At a pretrial hearing the trial court granted Appellant’s motion to
suppress evidence seized from Appellant’s vehicle. However, the trial court denied
Appellant’s motion to suppress evidence seized from Appellant’s person at the
scene and at the central booking facility. The case went to trial, whereupon
Appellant was found guilty and sentenced to 22 ½ years in prison. Appellant
-4- appeals the trial court’s denial of his motion to suppress evidence seized from his
person, and the judgment and sentence obtained with the use of said evidence.
Issues Presented
The trial court erred in denying Appellant’s motion to suppress evidence
obtained in the search of Appellant’s person.
Statement of Facts
On September 28, 2012, at around 2:00 a.m., Alicia Otto and three friends
were at a sports bar in north Austin when a man, later identified as Appellant,
approached their table and demanded their money and property. The man grabbed
Mr. Otto’s purse and ran away. A bartender pursued the man, but turned back when
he heard a gunshot. The police interviewed the victim and witnesses, and obtained
surveillance videos from the bar and a nearby Target store. This second video
shows the robber getting into a black SUV.
Later that morning, around 8:00 a.m., police responded to a “disturbance”
call. Patsy Harnage (Appellant’s mother) had reported that she and her son had
-5- gotten into an argument the previous day, and that he was parked in front of a
daycare center where she worked. Upon arrival at the location, they had “minimal
information on what the subject was wearing or driving, et cetera.” (Reporter’s
Record vol.2 p.57). The police saw no disturbance, and were initially unable to
locate either Ms. Harnage or her son. They eventually located a black male in a
black Ford Explorer. When they approached the SUV, they found Appellant asleep
in the driver’s seat and another person asleep in the back. When the officer tapped
on the window to gain Appellant’s attention, Appellant woke up “kind of nervous”
(Reporter’s Record v.2 p.27) and tried to start the vehicle. The officer then opened
the door had Appellant exit the vehicle. The officer said he saw a hand rolled
cigarette drop from Appellant’s hand. The officer frisked Appellant for weapons,
finding none. Appellant was handcuffed and placed in in the back of a patrol unit.
Appellant was later arrested for possession of marijuana and for outstanding
warrant(s) and taken to jail, where he was searched. Several credit cards were found
in his possession, with the name of the robbery victim on them. These were
subsequently introduced as evidence against Appellant at his trial.
A jury convicted Appellant of Aggravated Robbery with a Deadly Weapon,
and sentenced him to 22 ½ years in prison.
-6- Summary of the Argument
There was insufficient probable cause for Appellant’s arrest, and therefore
any evidence seized as a result thereof was illegally obtained. The trial court erred in
denying Appellant’s motion to suppress the evidence seized from Appellant.
Argument
Justin Flanery of the Austin Police Department was Appellant’s arresting
officer. His testimony as to his reasons for arresting Appellant lacked credibility,
contradicting his own testimony, testimony of other witnesses, and the information
provided to him by other police officers. The arresting officer was incorrect in
stating that there was an outstanding warrant for Appellant’s arrest. There was
insufficient evidence to support the arresting officer’s conclusory statement that
Appellant possessed a marijuana cigarette.
At one point he testified that Appellant’s mother (who initially called the
police) said she saw Appellant with a gun (Reporter’s Record v.2 p.18). He later
testified that she told him “her husband saw [Appellant] with at her house
yesterday.” (Reporter’s Record v.2 p.57).
The officer testified that he spoke with Appellant’s mother before detaining
Appellant. (Reporter’s Record v.2 p.23) and that she pointed out her son to the
-7- officer: “Question: So she actually put eyes on the vehicle and told you, ‘That’s his
vehicle?’ Answer: Yes.” (Reporter’s Record v.2 p.26). He later testified that he
detained Appellant before ever speaking with Appellant’s mother (v.2 p.58).
The officer testified that his department’s Computer Aided Dispatch (CAD)
confirmed that there was an active warrant for Appellant’s arrest (Court Reporter’s
Record v.2 pp.32-33), but later testified that there was in fact no such confirmation,
or any indication of a warrant in the CAD report (Reporter’s Record v.2 pp. 50 and
62).
James Hyatt, an Austin Police Department officer who investigated the
robbery, testified that the witnesses saw the robber “get into a black Jeep Liberty
and leave the scene.” (Reporter’s Record v.2 p. 13). The arresting officer testified
that, based on the CAD report, “All’s we got was a black male in a black SUV.”
(Reporter’s Record v.2 p. 18). He testified that this was later updated to a black Ford
Explorer (Reporter’s Record v.2 pp.44 and 53). Nonetheless, he testified that he was
looking for a black Suburban (Reporter’s Record v.2.p.20). He found Appellant in a
Ford Explorer (Reporter’s Record v.2 p.57).
Officer Flanery testified that, when he first observed Appellant with a hand
rolled cigarette in his hand, he couldn’t determine if it was marijuana or tobacco
-8- (Reporter’s Record v.2 pp.28 and 61-61). He also testified that he detected a
“moderate whiff” of marijuana.” (Reporter’s Record v.2 pp.28-29). Officer
Flanery’s statement that “from [his] training and experience [he] know[s] how
[marijuana] looks and smells” (reporter’s Record v.2 p. 28) was not supported by
any evidence, provided through Officer Flanery or any other witness.
The arresting officer’s testimony was contradictory about what he was told
and what he observed regarding Appellant and Appellant’s vehicle. It was
contradictory about whom he talked to and when. His testimony about why he
arrested Appellant was shown to be incorrect and insufficient to provide probable
cause for Appellant’s arrest.
The United States Supreme Court has consistently held “that evidence seized
during an unlawful search could not constitute proof against the victim of the
search”. Wong Sun v. United States, 371 U.S. 471,484 (1963), citing Weeks v.
United States, 232 U.S. 383 (1914). “The essence of a provision forbidding the
acquisition of evidence in a certain way is that not merely evidence so acquired
shall not be used before the Court but that it shall not be used at all.” Silverthorne
Lumber Co. v. United States, 251 U.S. 385,392 (1920).
-9- “An officer has probable cause when he has knowledge of facts that
would lead a reasonable person to believe that the suspect has committed a
crime or will soon do so.” State v. Story, Tex. Crim. App. NO. PD-0590-13, at
8 (Tex.Crim.App. October 15, 2014), citing Neal v. State, 256 S.W.3d 264, 280
(Tex. Crim. App. 2008). In this case, the arresting officer lacked credibility
and his knowledge of Appellant’s possession of marijuana was
unsupported by any evidence that he possessed the knowledge or skills to
make such a determination. . Further, his knowledge of any outstanding
warrant(s) for Appellant’s arrest was, by his own testimony, incorrect.
PRAYER FOR RELIEF
WHEREFORE, Appellant prays this Court grant the request, and reverse the
trial court’s denial of Appellant’s Motion to Suppress Evidence, reverse the
judgment and sentence of the trial court, and remand the case to the trial court for a
new trial. Appellant further requests any and all such other relief to which he may be
entitled.
-10- Respectfully submitted,
John S. Butler
ATTORNEY FOR APPELLANT 700 Lavaca Street, Suite 1400 Austin, Texas 78701 Telephone (512) 472-3887 Facsimile (512) 233-1787 STATE BAR #03526150
-11- CERTIFICATE OF COMPLIANCE
As Attorney of Record for Appellant, I do hereby certify that this document contains 1,641 words, as determined by Microsoft Word 2010, the computer program used to prepare the document.
Date: January 15, 2015
JOHN S. BUTLER Attorney for Appellant
CERTIFICATE OF SERVICE
As Attorney of Record for Appellant, I do hereby certify that a true and correct copy of this Appellant’s Brief was this date provided to the District Attorney of Travis County, Texas, via U.S. Mail to the following address:
Rosemary Lehmberg Travis County District Attorney Appellate Section PO Box 1748 Austin, Texas 78767 Date: January 15, 2015
-12-