ACCEPTED 01-17-00352-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 3/19/2018 11:38 PM CHRISTOPHER PRINE CLERK
No. 01-17-00352-CR FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS In the Court of Appeals 3/19/2018 11:38:14 PM For the First District of Texas CHRISTOPHER A. PRINE At Houston Clerk ♦ No. 1515550 In the 351st District Court Of Harris County, Texas ♦ Nelson Oroyo Rodriguez Appellant v. The State of Texas Appellee ♦ State’s Appellate Brief ♦
Clint Morgan Kim Ogg Assistant District Attorney District Attorney Harris County, Texas Harris County, Texas State Bar No. 24071454 morgan_clinton@dao.hctx.net Lisa Colins Joseph Allard 1310 Prairie, Suite 500 Assistant District Attorneys Houston, Texas 77002 Harris County, Texas Telephone: 713 274 5826
Oral Argument Not Requested Statement Regarding Oral Argument
The appellant requested oral argument because he believes it
“would serve to emphasize and clarify the important legal points
regarding this appeal.” (Appellant’s Brief at 7).1 The State believes the
legal points of this appeal are straightforward and well-covered by the
parties’ briefs. Accordingly, the State does not request oral argument.
1 The only page in the appellant’s brief that is numbered is the cover. The State will cite to the page numbers of the PDF file of the appellant’s brief.
i Identification of the Parties
Counsel for the State:
Kim Ogg District Attorney of Harris County
Lisa Collins & Joseph Allard Assistant District Attorneys at trial
Clint Morgan — Assistant District Attorney on appeal
Appellant:
Nelson Oroyo Rodriguez
Counsel for the Appellant:
Jonathan Gluckman — Counsel at trial
Tom Abbate — Counsel on appeal
Trial Court:
A. Reagan Clark Presiding judge
ii Table of Contents
Statement Regarding Oral Argument ................................... i Identification of the Parties ............................................... ii Table of Contents ........................................................... iii Index of Authorities ........................................................ iv Statement of the Case ...................................................... 1 Statement of Facts ........................................................... 1 Reply to Point One .......................................................... 3 Police had probable cause to believe the appellant’s phone and shoes were evidence of a crime, thus police lawfully seized them under the plain view doctrine........................................................................3 Reply to Point Two ........................................................... 8 The trial court’s finding that the appellant consented to police taking DNA samples and GSR swabs from his person is supported by the record and is not clearly erroneous. .....................................8 Conclusion ................................................................... 16 Certificate of Compliance and Service .............................. 17
iii Index of Authorities
Cases Aguayo v. State No. 08-13-00283-CR, 2015 WL 6741873 (Tex. App.— El Paso Nov. 4, 2015, no pet.) (mem. op. not designated for publication) ....................................14 Arrick v. State 107 S.W.3d 710 (Tex. App.— Austin 2003, pet. ref ’d) .............................................................6, 7 Derichsweiler v. State 348 S.W.3d 906 (Tex. Crim. App. 2011) ....................................... 6 Martinez v. State 91 S.W.3d 331 (Tex. Crim. App. 2002) ......................................... 5 Meekins v. State 340 S.W.3d 454 (Tex. Crim. App. 2011) ....................................... 9 Schneckloth v. Bustamonte 412 U.S. 218 (1973) ............................................................. 12, 14 State v. Betts 397 S.W.3d 198 (Tex. Crim. App. 2013) ....................................... 6 State v. Roades No. 07-11-0077-CR, 2012 WL 6163107 (Tex. App.— Amarillo Dec. 11, 2012, no pet.) (mem. op. not designated for publication) ....................................13 United States v. Terry 400 F.3d 575 (8th Cir. 2005) ....................................................... 7 United States v.Waldrop 404 F.3d 365 (5th Cir. 2005) ....................................................... 8 United States v.Wells 98 F.3d 808 (4th Cir. 1996) ......................................................... 7 Washburn v. State 235 S.W.3d 346 (Tex. App.— Texarkana 2007, no pet.).............................................................13
iv Zarychta v. State 44 S.W.3d 155 (Tex. App.— Houston [14th Dist.] 2001, pet. ref ’d) .......................................... 6
Statutes TEX. TRANSP. CODE § 724.015.......................................................13
v Statement of the Case
The appellant was indicted for capital murder. (1 CR 4). The appellant
pleaded not guilty but a jury found him guilty as charged. (4 RR 21; 2 CR
269). Because the State did not seek the death penalty, the trial court
assessed punishment at confinement for life without the possibility of parole.
(2 CR 272). The appellant filed a notice of appeal and the trial court
certified his right of appeal. (2 CR 276, 278).
Statement of Facts
Osorio Gonzalez and Denelio Duarte sold drugs out of a house they
shared with three other people. (5 RR 16-18, 24). The appellant and three
others decided to break into the house and steal money and drugs. (5 RR
168-71, 194). When the robbers arrived at the house, no one was home;
rather than going in to steal the items non-violently, the robbers waited for
people to return to the house because part of their objective was to “get the
person that lived at the house.” (5 RR 174-75).
Gonzalez, Duarte, and two of their housemates returned home from a
club around 3am. (5 RR 25). As they were filing into the house, the robbers
emerged from the shadows and forced their way inside. (5 RR 26-28, 182).
One robber held Duarte on the ground at gunpoint while Gonzalez ran into
a back room to get a gun. (5 RR 183, 187). Gonzalez and the appellant 1 exchanged gun fire with each getting hit; Duarte was also shot. (4 RR 36; 5
RR 38-41, 188). The robbers fled the scene empty-handed, but Gonzlez died
from his injuries. (5 RR 195; 7 RR 19).
The robbers dropped the appellant off at a nearby emergency room. (4
RR 201-04; 5 RR 191). Once he was stabilized, the appellant was
transported to the same hospital where Duarte was being treated and where
Gonzalez’s body was being held. (5 RR 240-41).
Harris County Sheriff ’s Deputy Eric Frederick was dispatched to the
hospital to interview the appellant, who had reported he was the victim of an
aggravated robbery. (4 RR 77-78). The appellant said he got shot when two
black males robbed him of his phone and wallet outside a club. (4 RR 80).
Deputy Frederick doubted this story because he saw the appellant talking on
his cell phone, and because the appellant produced his identification from
his wallet. (4 RR 83). Police quickly connected the appellant to the home
invasion; ultimately, DNA tests would match the appellant to several blood
stains at the scene, the appellant’s cell phone showed he was at the scene at
the time of the robbery, and one of the other robbers testified against the
appellant at trial. (4 RR 86; 5 RR 164-195; 6 RR 151-60, 211-13).
2 Reply to Point One
Police had probable cause to believe the appellant’s phone and shoes were evidence of a crime, thus police lawfully seized them under the plain view doctrine.
At trial, the appellant raised an objection to the police seizure of his
phone and shoes while he was at the hospital. The appellant complained that
the warrantless seizure was unlawful. After a mid-trial hearing outside the
presence of the jury, the trial court overruled the objection. (See 4 RR 140-
164, 211-12). In his first point of error, the appellant complains that the trial
court’s ruling was erroneous. (Appellant’s Brief at 12-29).
The only witness at the hearing was Daniel DellaSala, the crime scene
investigator for the Harris County Sheriff ’s Office who collected the
appellant’s belongings from the hospital. DellaSala testified that he and
another crime scene investigator, Billy Davis, were dispatched to the hospital
where the appellant and the two victims had been taken. (4 RR 142). At the
hearing, DellaSala testified that he took from the appellant’s hospital room
“[s]ome various clothing items … a wallet, as well as a cellphone….”2 (4 RR
145). DellaSala testified he took these items to preserve them for evidence.
(4 RR 145). He described numerous ways in which cell phones can provide
2 After the hearing, he gave a more detailed description of what he took, specifically mentioning, inter alia, “a pair of tennis shoes.” (4 RR 178). 3 evidence of criminal offenses, as well as describing ways that data can be
deleted or altered on cell phones. (4 RR 145-47). However, DellaSala
testified that investigators typically get warrants before searching the data
inside a cell phone; indeed, though DellaSala seized the phone without a
warrant, no search of the phone’s contents was made in this case until a
warrant was obtained. (4 RR 158).
After DellaSala’s testimony, the parties presented arguments. The
appellant conceded that DellaSala had probable cause to seize the phone,
but claimed that he needed a warrant to do so.3 (See 4 RR 156). The State
argued that the seizure was appropriate due to exigent circumstances. (4 RR
162, 164). After discussing the case with the parties, the trial court denied
the motion. (4 RR 164).
In his brief, the appellant’s entire point revolves around DellaSala’s
testimony and the arguments at the hearing. However, a trial court’s ruling
on the admissibility of evidence is reviewed for an abuse of discretion and an
appellate court must affirm the decision if it was correct under any theory of
law applicable to the case, regardless of the arguments presented to the court
3 Later, defense counsel explained to the trial court that he believed his objection covered all of the items DellaSala seized, including his shoes. (4 RR 211-12). At that time, which was before evidence from the shoes was admitted, the appellant “renewed” his objection as regarded the seizure of his shoes and the trial court overruled the objection. (4 RR 212). The State will assume, without conceding, that the appellant preserved his complaint regarding his shoes. 4 or the stated basis of the trial court’s ruling. See Martinez v. State, 91 S.W.3d
331, 336 (Tex. Crim. App. 2002).
Prior to the hearing, the State had presented the testimony of Deputy
Eric Fredrick. Fredrick had been dispatched to investigate the appellant’s
report that he had been shot during a robbery. (4 RR 78). The appellant told
Fredrick that “two unknown black males” had jumped him outside the
Mekano Club off Richmond Ave. in Houston. (4 RR 80-81, 84). The
appellant told Frederick that the “two unknown black males” had taken his
wallet and his cell phone. (4 RR 83).
However, Fredrick called dispatch and was told that there had been no
reports of shots fired near the Mekano Club. (4 RR 82). Fredrick also
observed the appellant talking on a cell phone, and the appellant produced
identification from his wallet, leading Fredrick to suspect that the robbery
story was not the truth. (4 RR 83). Fredrick was also aware that there had
been a shootout at a home invasion robbery very near the hospital, which,
combined with the appellant’s fake cover story, led Fredrick to believe the
appellant might be connected to that robbery. (4 RR 84-85). After speaking
with the appellant, Fredrick contacted his supervisors and relayed his
suspicions about the appellant’s “conflicting story.” (4 RR 87). The
supervisor dispatched DellaSala and Davis to the hospital. (4 RR 87).
5 When police officers are lawfully in a location and see an item whose
nature as contraband or evidence is immediately apparent, police may seize
the item under the plain view exception to the warrant requirement. State v.
Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013); Arrick v. State, 107
S.W.3d 710, 719 (Tex. App.—Austin 2003, pet. ref’d). The test for whether
the incriminating nature of the item is “immediately apparent” is whether,
without conducting any additional searches, police have probable cause to
believe the item is contraband or evidence. Zarychta v. State, 44 S.W.3d 155,
166–67 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Whether
probable cause exists in a particular case is not determined by looking at the
knowledge of a particular officer, but by looking at the combined knowledge
of all cooperating police officers. See Derichsweiler v. State, 348 S.W.3d 906,
912 (Tex. Crim. App. 2011) (when determining whether police had
reasonable suspicion for warrantless detention, reviewing court looks at
collective knowledge of all cooperating police); Woodward v. State, 668
S.W.2d 337, 344 (Tex. Crim. App. 1982) (op. on reh’g) (when determining
whether police had probable cause for warrantless arrest, reviewing court
looks at collective knowledge of police).
In this case, Fredrick had probable cause to suspect that the
appellant’s phone and clothing might contain evidence of several crimes —
6 the uncorroborated aggravated robbery that the appellant reported being the
victim of; the false report to a police officer that Frederick suspected the
appellant of; and the deadly home invasion that seemed to fit the facts of the
situation. By providing evidence of the appellant’s locations and
communications, the cell phone could prove or disprove any of these
offenses. The appellant’s clothing likewise would probably contain residual
forensic evidence that would constitute evidence of these offenses. See Arrick,
107 S.W.3d at 719 (belief that killer wore footwear at time of offense
provided probable cause to seize footwear).
Because DellaSala was collecting evidence based on the report
submitted by Fredrick — indeed, while Fredrick was still at the hospital —
the collective knowledge doctrine imputes to DellaSala Frederick’s
knowledge relating to probable cause. See United States v. Wells, 98 F.3d 808,
810 (4th Cir. 1996) (where officer who conducted warrantless seizure of
firearm from defendant did not personally have knowledge that defendant
was felon but other officers in investigation were aware of that fact, collective
knowledge and plain view doctrines justified seizure); United States v. Terry,
400 F.3d 575, 581 (8th Cir. 2005) (“We impute information [supporting
probable cause] if there has been ‘some degree of communication’ between
the officers. This requirement distinguishes officers functioning as a team
7 from officers acting as independent actors who merely happen to be
investigating the same subject.”); United States v. Waldrop, 404 F.3d 365, 370
(5th Cir. 2005) (applying collective knowledge and plain view doctrines to
justify warrantless seizure); (see also 4 RR 156 (defense counsel conceding to
trial court that police had probable cause to seize the phone and
belongings)). Because DellaSala had probable cause to believe the cell phone
and shoes constituted evidence of an offense, and because these items were
in plain view, DellaSala was justified in seizing them and the trial court did
not err in overruling the appellant’s objection.
Reply to Point Two
The trial court’s finding that the appellant consented to police taking DNA samples and GSR swabs from his person is supported by the record and is not clearly erroneous.
While the appellant was in the hospital, he consented to police taking a
buccal swab sample of his DNA, and swabbing his hands for gun-shot
residue. Prior to trial the appellant filed a motion to suppress the resulting
evidence, claiming that his consent was not effective. (2 CR 189). After a
pre-trial hearing the trial court denied this motion. (2 RR 119). In his
second point of error the appellant claims that the trial court’s ruling was
erroneous. (Appellant’s Brief at 30-45).
8 Although the Fourth Amendment generally requires a warrant before
police may conduct a search, one of the recognized exceptions to that
requirement is if the subject of the search voluntarily consents. Meekins v.
State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011). Whether a particular
subject’s consent was voluntary is a fact question that, if challenged, a trial
court will determine based on the totality of the circumstances. Id. at 459-
60. The burden of proof in the trial court is whether voluntariness is proven
by clear and convincing evidence. Ibid. On appeal, a trial court’s finding of
volunatriness must be afforded great deference and will be disturbed only if
it is “clearly erroneous.” Id. at 460. The Court of Criminal Appeals laid out
the appropriate question for appellate courts reviewing a trial court’s
determination of voluntariness: “Could a rational trier of fact conclude, by
clear and convincing evidence (less than beyond a reasonable doubt), based
upon all of the facts and logical inferences that can be drawn from those
facts, that [the subject] voluntarily consented to the search?” Id. at 459 n.
24.
The State presented three witnesses at the hearing. The first was
Cassandra Kendrick, an emergency-room nurse who helped treat the
appellant. (2 RR 8). Kendrick said that she was able to communicate with
the appellant in English. (2 RR 15-16). She characterized the appellant as
9 “alert and awake.” (2 RR 20). She remembered going over with the
appellant consent for an operation; she believed the appellant was capable of
consent at the time, and he initialed and signed the relevant paperwork as
needed. (2 RR 24-25). She said the hospital had procedures for patients who
were incapacitated and could not consent to surgery, but those procedures
were not implemented in this case. (2 RR 26).
The next witness was Deputy Billy Davis, a crime scene investigator
with the Harris County Sheriff’s Department. (2 RR 43-44). Davis said that
he was under the impression that the appellant could not speak Spanish, so
he made use of a Spanish-speaking deputy to serve as a translator. (2 RR 48-
49). Davis said that he explained to the appellant that he wanted to do both
a gun-shot residue (GSR) collection and a DNA collection. (2 RR 50).
Davis said that the appellant was able to communicate, and that everyone
spoke in a normal tone of voice. (2 RR 51). Davis said that he had the
translator advise the appellant he could refuse consent. (2 RR 52). Davis
said the appellant was polite and cooperative. (2 RR 52-53). Davis said he
neither threatened the appellant nor demanded that he sign the consent
form. (2 RR 56). Davis said that he never saw the appellant become
incoherent. (2 RR 58)-59). Davis said that the appellant appeared to be in
pain, but he never drifted out of consciousness. (5 RR 71).
10 Deputy Jorge Reyes testified that he served as a translator for Davis. (2
RR 76-77). Reyes said that he spoke with the appellant in a “regular” tone
and never raised his voice. (2 RR 77). Reyes said that as he translated what
Davis said, he made it clear that it was the appellant’s choice whether to
consent. (2 RR 79). Reyes said that the appellant never drifted out of
consciousness while he was speaking with him. (2 RR 81). Reyes said that
the appellant never said he did not wish to speak with police, but remained
cooperative the whole time. (2 RR 81). Reyes said that he walked the
appellant through a Spanish-language consent form, and the appellant
signed it. (2 RR 82-84; State’s Ex. 2 (8A RR 239)).
After these witnesses, the appellant testified. He claimed he did not
remember anything that the officers testified about and did not remember
signing the consent form. (2 RR 105).
The parties then presented arguments. Defense counsel argued that
the appellant may have been on morphine at the time.4 (2 RR 109). Defense
counsel argued that police could have obtained a warrant. (2 RR 110-11).
Defense counsel argued that the appellant was not free to leave at the time,
and the deputies should have Mirandized the appellant. (2 RR 112-13).
4 As defense counsel later admitted, the record on this point was not clear. (2 RR 113- 14). 11 The prosecutor responded by pointing out that the fact that officers
could have obtained a warrant did not mean consent was insufficient. (2 RR
116). The prosecutor pointed out that case law focuses on the behavior and
demeanor of the officers seeking consent, and the evidence showed that the
officers here spoke calmly and did not threaten the appellant. (2 RR 116-
17). The prosecutor further pointed out that at the time the officers
interacted with him the appellant had reported being the victim of a crime,
thus there seemed little reason for them to intimidate him. (2 RR 117). The
prosecutor disputed defense counsel’s claim that the appellant was on
morphine, but then noted that drug use “does not bar the ability to give
consent, as long as they showing that they are able to understand what is
being asked of them and able to give that consent.” (2 RR 117-18). The
prosecutor reiterated the deputies’ testimony that the appellant seemed alert
and interactive. (2RR 118). The trial court found that the appellant’s
consent to the search was voluntary. (2 RR 119).
On appeal, the appellant claims that his consent was involuntary
because his will was overborne. (Appellant’s Brief at 38 (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973))). In Schneckloth, the Supreme Court
reviewed cases where it had been asked to determine whether a statement
was given voluntarily. The court listed several factors it had considered in
12 those cases: The “youth” of the accused, his lack of education, his low
intelligence, the lack of any advice regarding constitutional rights, the length
of detention, the repeated and prolonged nature of the questioning, and the
use of physical punishment such as the deprivation of food or sleep. 412 U.S
at 226. The court emphasized that none of these factors standing alone was
determinative. Id. at 226-27.
The appellant adduced no evidence that he was particularly young,5
ill-educated, or of low intelligence. The appellant admits that the deputies’
questioning was not repetitive, and that the length of detention (if any) was
not overly long. (Appellant’s Brief at 39).
The appellant claims that because he was not Mirandized or read “any
warnings or admonishment like those contained in the DIC-23[6] [sic] forms”
that is a factor that weighs in his favor. (Appellant’s Brief at 39). However,
both deputies testified that they told the appellant he was free to refuse
5 Medical records show that the appellant was 30 years old at the time. (8A RR 16). 6 The DIC-24 is a statutory warning read to DWI suspects in Texas that advises them of the administrative consequences of refusing to provide a requested blood or breath specimen. See, e.g. Washburn v. State, 235 S.W.3d 346, 351 (Tex. App.—Texarkana 2007, no pet.); TEX. TRANSP. CODE § 724.015. The relevance of the DIC-24 here is not obvious. If a defendant voluntarily consents to give a breath or blood sample, an officer’s failure to read a DWI suspect the DIC-24 is of no legal significance. State v. Roades, No. 07-11-0077-CR, 2012 WL 6163107, at *3 (Tex. App.—Amarillo Dec. 11, 2012, no pet.) (mem. op. not designated for publication). Moreover, the appellant would not have faced any legal consequences had he refused consent to search, thus there was nothing equivalent to the DIC-24 that could have been read to him. 13 consent. (2 RR 52, 79). When viewed with appropriate deference to the trial
court’s findings, this factor weighs in favor of the State.
The appellant’s only remaining argument is that “the psychological
impact of being questioned immediately prior to having a bullet surgically
removed from one’s person weighs in his favor and overrides many, if not all
other concerns.” (Appellant’s Brief at 40). The appellant does not cite to any
authority for this proposition and the State is aware of none. All cases
involving questions of consent are determined by the totality of the
circumstances, not any particular factor. Schneckloth, 412 U.S. at 226-27. If
the appellant was in pain, that is certainly that something that can factor into
the analysis, but in this case the trial court had before it the testimony from
two officers and a nurse that the appellant seemed lucid, alert, and
cooperative at the relevant time period. Given that testimony, the State
submits that the appellant’s assertions of pain are not sufficient to show that
the trial court’s finding of voluntariness was clearly erroneous. See Rayford v.
State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003) (holding consent to
search was voluntary despite defendant undergoing medical procedures and
complaining of pain); Aguayo v. State, No. 08-13-00283-CR, 2015 WL
6741873, at *2, *4 (Tex. App.—El Paso Nov. 4, 2015, no pet.) (mem. op.
not designated for publication) (same). Accordingly, the trial court did not
14 err in overruling the appellant’s objection and this Court should reject his
second point.
15 Conclusion
The State asks this Court to affirm the judgment of the trial court.
KIM OGG District Attorney Harris County, Texas
/s/ C.A. Morgan CLINT MORGAN Assistant District Attorney Harris County, Texas 1310 Prairie, Suite 500 Houston, Texas 77002 Telephone: 713 274 5826 Texas Bar No. 24071454
16 Certificate of Compliance and Service
I certify that, according to Microsoft Word, the portion of this brief for
which Rule of Appellate Procedure 9.4(i)(1) requires a word count contains
3,303 words.
I also certify that I have requested that efile.txcourts.gov electronically
serve a copy of this brief to:
Tom Abbate tom@tomabbatelaw.com /s/ C.A. Morgan CLINT MORGAN Assistant District Attorney Harris County, Texas 1310 Prairie, Suite 500 Houston, Texas 77002 Telephone: 713 274 5826 Texas Bar No. 24071454
Date: March 19, 2018