Placide, Jason Michael

• Court: Court of Appeals of Texas
• Decided: January 16, 2015
• Docket: PD-1607-14
• Status: Published

Opinion

NO. PD —- 1607-14

IN THE TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS Vlllkfi

JASON MICHAEL PLACIDE, Petitioner,

V.

THE STATE OF TEXAS, Respondent.

*** JANUARY 16, 2015

On Review from the Fourteenth Court of Appeals at Houston, Texas NO. 14-l3~00725—CR

Appeal from the 180*“ Criminal District Court Harris County, Texas (Cause No. 1,353, 416)

**$

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW Michael A. McEnrue 639 Heights Boulevard P.O. Box 70978 Houston, Texas 77270 (713) 862--1975 (713)864-8587 (FAX) mmcenrue@justice.com

Attorney for Petitioner Jason Michael Placide Statement Regarding lndigency

The undersigned counsel was appointed to represent Petitioner on appeal by order of the

trial judge signed on July 29, 2013. (elm. 51)

Statement Regarding Oral Argument

Petitioner waives oral 'a1‘g(z'11Ie°i1rt'a_n' h‘is‘petition for disci'ctionziry réview, but believes that

this Count will find oral argument on the merits useful in this case.

(i) Table of Contents

wiser; Pggg Statement Regarding Indigency ........................................................................................ ..i

Statement Regarding Oral Argument ................................................................................. ..i

Table of Contents ............................................................................................................... ..ii

Index of Authorities ......................................................................................................... ..iii

Statement of the Case .............................................................................. ..t

Statement of Facts ................................................................................... ..2

Question Presented ............................................................................................................ ..3

Reasons for Review ........................................................................................................... ..3

..6 Prayer for Relief.............................. ................................................................................

Certificate of Service ......................................................................................................... ..7

Appendix

- January 7, 2014 Abatement Order

- Findings of Fact and Conclusions of Law

~ March 18, 2014 Reinstatement Order

- September 25, 2014 Memorandum Opinion - Motion for Rehearing

(ii) Index of Authorities

Rules: Page;

Tex. R. App. P. 38.7 ........................................................................ ..6

Page:

Alabama v. White, 496, U.S. 325 (1990) .............................................. .. 13

Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002) ...................... ..1 1-12

Costley V. State Farm Fire & Casualty Co., 894 S.W.2d 380 (Tex. App. — Amarillo 1997, writ den’d) ................................................................. ..6

Illinois V. Wardlow, 528 US. 119 (2000) ............................................. ..l3

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ........................ ..l 0

Oliver v. State, 891 S.W.2d 651 (Tex. Crim. App. 1995) ............................. ..7

Reich-Bacot v. State, 952 S.W.2d 542 (Tex. Crim. App. 1997) ...................... . .7

Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) ...................... ..9-l 0

Theus v. State, 863 S.W.2d 489 (Tex. Crim. App. 1993) ............................. ..7

United States v. Henley, 934 F.2d 1040 (9"‘ Cir. 1992) .......................... ..1o-1 1

Wicker v. State, 740 S.W.2d 779 (Tex. Crim. App. 1987) ............................ ..5

Wilson v. State, 296 S.W.3d 140 (Tex. App.- Houston [14 Dist.] 2009, pet. ref’d) ..................................................... ..6

(iii) N0. PD — 160744

[N THE TEXAS COURT OF‘ CRIMINAL APPEALS AT AUSTIN, TEXAS Iltitik

ii‘ * 4‘

On Review from the Fourteenth Court of Appeals Texas at=;'H0uston, NO. 14-13-00725—CR

Appeal from the1L80“‘ Criminel-District Court Harris County, Texas (Cause No. 1,353, 416)

=1: .-r an

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW TO THE COURT OF CRIMINAL APPEALS OF TEXAS: Petitioner Jason Michael Piacide, Appellant below, applies for review of a

Judgment and Opinion of the Fourteenth Court of Appeals with this petition for

discretionary review. Statement of the Case

Petitioner challenges the July 26, 2013 Judgment of the 180"‘ Criminal

District Court of Harris County, Texas, which sentenced him to a five-year term of

confinement in the institutional division of the Texas Department of Criminal

Justice for possession of cocaine. (Clk. R. 45-48) In the court of appeals, Petitioner

disputed the trial courts ruling on his motion to suppress heard prior to his guilty

plea. (Clk. R. 32; RpR. 99)

Statement of Facts and Proceedings

At the suppression hearing, the State stipulated that it had the burden of proof.

(RpR. 7) Its witnesses then told the following story:

During the night shift on July 6, 2012, the Houston Police Department

dispatched three patrol officers to an apartment complex at 8034 Antoine near

West Gulf Bank with a report that three or four black males were “doing drugs and

loading guns" outside a white truck and a black Dodge Magnum. (RpR. 13-14)

When the officers arrived, they found three black males near a white pickup in the

parking lot of the complex. (RpR. 15-16)

On the strength of the anonymous tip, the ofiicers handcuffed each of the

individuals, and frisked them, but found no guns or drugs. (RpR. 14, 25-26, 43,

52-53, 57, 65) Although no one had attempted to flee, the officers locked each of

the handcuffed suspects in the back seats of separate patrol cars as they continued their investigation. (RpR. 26, 36, 42) The officers then ran the suspects’ eriminal

histories, but learned that none had outstanding warrants. (RpR. 16, 36) They

searched the white pickup truck, but found no guns or drugs. (Rpk. 25)

The policemen spotted a black Dodge Magnum parked three spaces away

from the white pickup. (RpR. 43) Two of the patrolmen went to shine their

flashlights through its passenger side window. They viewed plastic bags of

marijuana and clear pills on the console between the two front seats. (RpR. 17)

The third officer meanwhile questioned Petitioner who claimed ownership of the

Magnum, admitted that he had driven it, a.nd stated that he lived at the address on

the registration. (RpR. 18, 46) That policeman testified that Petitioner was under

arrest when the other officers found the drugs in the Dodge Magnum. (RpR. 22)

The police further admitted that they did not give Petitioner the warnings mandated

by Miranda v. Arizona, 384 U.S. 436 (1966). (RpR. 32-33, 72) They stated that

they normally don’t do that, that they are not taught to do it. (RpR. 37, 53)

Petitioner did not have a key to the vehicle; moreover, it was not registered to him.

(RpR. 27, 33, 72) The policemen therefore called a tow truck, and asked the driver

to open the Dodge Magnum upon his arrival. (RpR. 30, 58) They retrieved the

marijuana as well as crack and powder cocaine they found underneath it on the

console. At the conclusion of the hearing, the trial court denied Petitioner’s motion to

suppress evidence, including Petitioner's statements (RpR. 37, 97), then took

Petitioner’s guilty plea and certified his right to appeal. (RpR. 99: ClkR. 36, 43)

In his court of appeals brief, Petitioner argued that his statement to his

arresting officer was the fruit of an investigative detention that violated the Fourth

Amendment because it lacked reasonable suspicion and also exceeded the scope

permitted. Petitioner also argued that his interrogation violated the Fifth

Amendment as well as Article 38.22 of the Texas Code of Criminal Procedure for

lack of prior Miranda warnings.

After Petitioner submitted his brief, but before the State replied, the court of

appeals decided at least one of Petitioner’s arguments implicated the voluntariness

of his statement. Relying on Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim.

App. 1987), that court abated the appeal, directed the trial court to make written

findings of fact and conclusions of law on the voluntariness of Petitioner’s

statement, and ordered it to supplement the appellate record within thirty days.

(Appendix) When the trial court complied (Appendix), the appellate court

reinstated the appeal and directed the State to file its brief in 30 days. (Appendix)

After the State filed its responsive brief, the panel heard oral argument,

issued an opinion which incorporated the trial court's findings of fact verbatim

without question. (Appendix) That opinion concluded that Petitioner had failed to preserve his contentions regarding the fourth amendment violations. With respect

to Petitioner’s claimed violation of the Fifth Amendment, the court decided that

Petitioner’s detention did not amount to custody that implicated the Miranda

requirements. The Fourteenth Court of Appeals denied Petitioner’s timely motion

for rehearing which complained of that court’s failure to provide for supplemental

briefing after the trial court made its findings of fact and conclusions of law

regarding the suppression of evidence. (Appendix)

Questions Presented

Whether the Court of Appeals’ Abatement and Reinstatement Procedure Correctly Implemented this Court’s Wicker Decision.

to Preserve a Claim that Whether Petitioner Failed His Statement Regarding His Connection to a Black Dodge Magnum Was the Fruit of a Fourth Amendment Violation. Whether Petitioner Underwent a Custodial Interrogation

Reasons for Review

A.

If a trial court makes no factual findings to support its ruling regarding the

voluntariness of a confession, or if the court’s findings lack sufficient detail to

permit resolution of the appellate dispute raised by a party, this Court’s decision in

Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim. App. 1987) directs the court of

appeals to abate an appeal and order the district judge to make written findings on the disputed issues regarding the voluntariness of a defendant’s challenged

confession.

If one leaves aside whether the -Wicker procedure applies to challenges

outside that specified in Texas Code of Crim. P. Art. 38.22 §6, there still remains a

question about how to reconcile a briefing schedule that has already commenced

with the sequence of abatement, supplementation of the record, and reinstatement

of the appeal mandated by this Court in that case.

As one alternative, one panel of the Fourteenth Court of Appeals has offered

an appellant the opportunity to supplement his brief following the entry of the trial

court’s findings and conclusions. Wilson v. State, 296 S.W.3d 140, 143 (Tex. App.-

Houston [14 Dist.] 2009, pet. ref’ d) (past example). That option is consistent with

Tex. R. App. P. 38.7 which provides that “a brief may be amended or

supplemented whenever justice requires, on whatever reasonable terms the court

may prescribe.” In at least one civil case, a Texas court of appeals has determined that a

litigant is entitled to re-brief or supplement his brief when the appellate process

generates new issues. Costley v. State Farm Fire and Casualty Co., 894 S.W.2d

380, 387(Tex. App.—Amarillo 1997, writ denied) (issue arising during appeal).

At its core, this problem is akin to the one this Court addressed when it held

that an indigent defendant’s mandatory right to re—brief on remand flows necessarily from his constitutional or statutory right to counsel. See, e. g., Reich-

Bacot v. State, 952 S.W.2d 542, 543 (Tex. Crim. App. 1997) (mandatory

opportunity to re—brief on remand from Texas Court of Criminal Appeals); Oliver

v. State, 891 S.W.2d 651 (Tex. Crim. App. 1995) (same); Theus v. State, 863

S.W.2d 489, 491 (Tex. Crirn. App. 1993) (same). In addition, failing to allow

supplemental briefing when the issues change during the appellate process raises a

question of fairness that may rise on some occasions to the level of a deprivation of

due process.

This Court should therefore consider this issue and determine whether the

court of appeals had a statutory duty under the Texas Rules of Appellate Procedure

or a constitutional duty based on the due process clause or the due course of law

provision of the Texas constitution to notify Petitioner of his right to re-brief after

abatement and address the new or altered issues created by the Findings of Fact

and Conclusions of Law supplementing the appellate record after Petitioner had

filed his brief. Texas Rule of Appellate Procedure 66.3(b).

B.

Prior to the hearing in the trial court, appointed counsel filed a motion to

suppress certain physical evidence taken from the Black Dodge Magnum as well as

“[a}ny other matters that the Court finds should be suppressed upon hearing of this

motion.” (ClkR 32-33). As the State adduced evidence and the specific facts of the encounter came to light, however, defense counsel expanded the range of his

challenges to include;

(a) the scope of Petitioner’s detention (RpR. 25);

(b) whether the officer’s call slip from an anonymous source and the

circumstances witnessed upon arrival would provide reasonable

suspicion to detain Petitioner to the extent recounted (25-26);

(c) the officer’s failure to afford Petitioner his Miranda warnings (RpR. 32-

33); and

(d) the recurring problem of both officers’ failure to give Miranda warnings

when they handcuff people and lock them in patrol cars. (RpR. 37, 53 & 96)

At the close of the evidentiary hearing, trial counsel orally challenged

Petitioner’s purported statement admitting a connection with the Black Dodge

Magnum and the validity of his detention and its scope in light of the facts recited

by the officers. Petitioner’s attorney summarized his position as a set of challenges

to the actions of the officers based on the Fourth, Fifth and Sixth Amendments to

the United States Constitution, Article 1, §9 of the Texas Constitution and “Article

28.23” [sic] of the Texas Code of Criminal Procedure. (RpR. 96-97).

The State did not address the points made by defense counsel. Instead, it

contended first that there had been reasonable suspicion for Petitioner’s detention and next that the drugs were found in a plain View that the police were allowed in

the circumstances. (RpR, 98-99). The assistant district attorney then closed his

final remarks by stating: “As for the other issues that are raised, as far as the links

or connections to this defendant, that falls outside the scope of this motion to

suppress hearing.” (Id.) Although it recognized that defense counsel had raised

additional issues during the hearing, in other words, the State refused to deal with

any that lay outside the scope of Petitioner's written motion to suppress. At that

point, the trial court orally denied Petitioner’s suppression motion. (RpR. 99)

When the State drafted proposed Findings of Fact and Conclusions of Law

during the abatement of Petitioner's appeal, it continued its effort to forestall the

latter’s assertion of any claims about constitutional violations surrounding his

statements in a preamble to the document. Subject to that proviso, the trial court

ruled on Petitioner’s fifth amendment claim; it did not explicitly rule on

Petitioner-’s fourth amendment claim in that document. (Appendix).

in Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009), this

Court held that held that an argument made during a suppression hearing is

sufficient to alert a trial court that a defendant is arguing a claim of statutory or

constitutional violation. In explicating the governing law, the Court quoted its

opinion in Lcmkston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) to

summarize the core requirements of preserving error under Texas Rule of Appellate Procedure 33.l(a) and Texas Rule of Evidence 103. It framed them as

follows:

To preserve an error for appeal, a party must be specific enough so as to ‘let the trial judge know what he wants, why he thinks himself entitled to it, and do so clearly enough for thejudge to understand him at a time when the trial court is in a proper position to do something about it.’

Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009).

The Court also emphasized that appellate courts must pay attention to

contextual clues concerning what particular arguments a party is making:

[Courts] cannot consider just the specific complaint in question; [they] must also look at the context. When the correct ground for exclusion was obvious to the judge and opposing counsel, no forfeiture results from a general or imprecise objection.

Resendez v. State, 306 S.W.3d at 308, 313 (Tex. Crim. App. 2009).

By holding in this case -that Petitioner failed to preserve a claim that his

statement regarding a connection with a Black Dodge Magnum was the fruit of a

Fourth Amendment violation (Appendix Slip op. at 8), the Fourteenth Court of

Appeals has ignored the core ‘principles outlined in Resendez v. State, 306 S.W.3d

308 (Tex. Crim. App. 2009).

C.

In United States v. Henley, 984 F.2d 1040 (9“‘ Cir. 1992), the court dealt

with I-lenley’s claim that his statement he owned a car involved in a robbery was

obtained in violation of his Miranda rights. Although the FBI had not formally

10 arrested Henley at the time, an agent entered the police car where Henley sat in

handcuffs, and asked him whether he owned a particular 1974 Plymouth Duster.

When Henley acknowledged his ownership, the agent disclosed that he suspected

the car had been involved in a bank robbery, and obtained Henley’s consent to

search the vehicle. With evidence taken from the Duster, prosecutors obtained

Henley’s conviction not for the bank robbery then under investigation but for one

that had occurred eight days earlier.

Writing for the panel and relying directly on Miranda v. Arizona, 384 U.S.

486 (1966), Judge Kozinski stated:

Whether Henley was in custody at the time he admitted owning the car is easily resolved.

**it

It is fair to say that someone who being questioned by an FBI is

agent while sitting handcuffed in the back of a police car is, indeed, not free to leave. We have no trouble concluding that Henley ‘had been taken into custody or otherwise deprived of his freedomof action in [a] significant way.’

United States v. Henley, supra, 984 F.2d at 1042.

The court went on to hold that the FBI questioning was not only custodial

but also constituted interrogation. United States v. Henley, 984 F.2d 1040, 1043

(9‘“ Cir. 1992).

Relying on Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002), the

court of appeals in this case concluded that Petitioner’s detention in a police car

11 while handcuffed was reasonable and did not amount to an unlawful arrest.

(Appendix Slip Op. at 14) That case is factually distinguishable from the instant

one. In Balentine, the officer began investigating a report of gunfire from a known

informant. He first watched defendant try to evade an encounter, then repeatedly

caught him in various lies and contradictions as Balentine allowed the officer to

chauffer him to the address of someone who could vouch for his identity. As the

situation developed to the point where the officer felt the need to frisk Balentine a

second time, he handcuffed the latter as he took him out of the patrol car and

conducted a second, more thorough pat-down search and found a bullet. The

officer ultimately released Balentine on the instruction of a supervisor. Balentine

v. State, 71 S.W.3d 763, 767 (Tex. Crim. App. 2002).

In this case, the officers responding to a call by an unknown informant did

not find evasive actors in the apartment parking lot. Every one they handcuffed and

placed in separate patrol cars had no outstanding warrants. The officers found no

weapons to corroborate the unknown informant’s tip. They found no guns or drugs

in the white pick-up truck they searched. As one officer questioned Petitioner

about his connection to a Black Dodge Magnum they spotted, the others conducted

a plain view search through its passenger window and saw marijuana on the

console inside. Because Petitioner did not have a key to the vehicle that was not

12 registered to him, the officers called a tow truck, and asked the driver to open the

Dodge so they could retrieve the drugs.

What the court of appeals has ruled in this case is the following: If you are a

black man standing next to a white pick-up truck in an apartment parking lot in

Acres Homes at 4:00 a.m, a call from an unidentified individual that a black

person, or 3 or 4, is doing drugs and loading guns next to a white pick-up at that

location will give the police reasonable suspicion to detain you by handcuffmg you

and locking you in a patrol car while they investigate the anonymous tip. That

detention, moreover, does not arise to the equivalent of an arrest. That holding is

untenable in light of the United States Supreme Court’s decisions in both Illinois v.

Wardlow, 528 U.S. 119, 124 (2000) and Alabama v. White, 496, U.S. 325, 329

(1990). For those reasons, this Court should review the lower court’s decision and

reverse it.

Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully asks

this Court to sustain Petitioner's grounds for review on the Miranda issue and

reverse the judgments of the Fourteenth Court of Appeals and the trial court. In the

alternative, Petitioner asks this Court to sustain his grounds for review on both the

first and second issues, and then remand this case to the Fourteenth Court of

Appeals for fiuther proceedings consistent with the Court’s decision.

13 Respectfully submitted,

By; ._C:»v.4»._u MICHAEL A. Mo NRUE TBC #l3589050 639 Heights Boulevard P.O. Box 70978 Houston, Texas 77270-0978 (713) 862-1975 (713) 8643587 FAX mmcenrue@justicc.com ATTORNEY FOR PETITIONER

Certificate of Compliance

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby ceitify that

The word count in the foregoing Appel1ant’s Petition for Discretionary Review

calculated under Rule of Appellate Procedure 9.4(i)(.’-Z) iixlithoutlallowance under

Texas Rule of Civil Procedure 9.4(i)(1), is 3,069 words.

a .WbZé4../i’m_ Michael/A1. McEnrue Certificate of Service

I hereby certify that a true copy of the foregoing Petition for Discretionary

Review was sent to the following parties or counsel of record this 7"‘ day of

January, 2014 by mail in compliance with Rules 9.5 & 68.11, Texas Rules of

Appellate Procedure:

Eric Kugler Assistant District Attorney 1201 Franklin Houston, Texas 77002

State Prosecuting Attorney

W 44-3% PO. Box 12405 Austin, Texas 78711

A Michael A. McEnroe ,, APPENDIX - v

Abatement Order filed January 7, 2014. R In The

3lun1'It2rIfl1¢'m1rfnfApr;12fln

NO. 14»-13-00725-CR

JASON MICHAEL PLACIDE, Appellant V.

1'31: spire or TEXAS, Appellee

On Appeal rroxygié ism District Court ~~ Harifis County, Texas

Q Trial Courif "Le? No. 331950130 ~~ ~ "l

IE5‘-lib 1 Q ABATEIVIENT ORDER

The trial court failed .t6-‘submit findings of fact and conclusions of law on the voluntariness of appellant’s statement. Article 38.22, section 6 of the Texas Code of Criminal Procedure requires the trial court to make written fact findings and

conclusions of law as to whether a challenged statement was made voluntarily,

even if appellant did not request them or object to their absence. Tex. Code Crim. Proc. at. 38.22 § 6; Urias v. State, 155 S.W.3d 141, 142- (Tex. Crim. . ¥'04 glhrh Danhln mm mm i nzcorzoen-s MEMORANDUM rm: nnstmmgansdpoor quality .mm_ M" ‘7 29"? \ '§

ameume oflmaglng ‘‘'—s1:.'r-a:-:=w..-.;-'v;*;.,,— 3!’ llonmv 1

The statute is mandatory and the proper procedure to correct the error is to abate

the appeal and direct the trial court to make the required findings and conclusions.

See Tex. R. App. P. 44.4; Wicker v. State, 740 S.W.2d 779, 784 (Tex. Crim. App. 1987).

Accordingly, the trial court is directed to reduce to writing its findings of fact and conclusions of law on the voltmtariness of appel!ant’s statement and have a supplemental clerk’s record containing those findings filed with the clerk of this Court within thirty days of the date of this order. 3 '1! '10 ,4 The appeal is abated, treated as a closed case, and removed from this Court’s

active docket. The appeal will be reinstated on this Court's active docket when the trial court’s findings and recommendations are filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party.

PER CURIAM P3 35341;

THE sun: or TEXAS x [N THE 180"‘ vs. x DISTRICT COURT or JASON MICHAEL PLACIDIZ x HARRIS couwrv, TEXAS

F INGS OF FACT AND N ONS OF LAW BE IT REMEMBERED that on July 22, 2013 this Court conducted an evidentiary hearing, pursuant to the Defendant’s MOTION TO SUPPRESS. Specifically, the Defendant sought to suppress, “all evidence seized on 7-6-2012 uneonscnted in the search of a Black dodge Magnum vehicle at 5700 Gulf bank.” During the aforementioned hearing, in addition to urging the suppression of physical evidence, the Defendant also urged suppression of certain orai statements, although such statements were NOT mentioned in the MOTION TO SUPPRESS. At the conclusion of said hearing, this Court denied the aforementioned MOTION TO SUPPRESS._'I'his Court makes the following FINDINGS OF FACT AN D CONCLUSIONS OF LAW with regard to BOTH the physical evidence seized and the oral statements made by the Defendant, while not conceding that the consideration of such statements was properly before the Court based on the aforementioned MOTION TO SUPPRESS:

FINDINGS OF FACT 1. The Defendant, Jason Michael Placide, was charged by indictment in the above styled and numbered cause with the felony offense of Possession of a Controlled Substance. 2. Oflioers Joseph Little and Matthew Little of the Houston Police Department arecredible and reliable witnesses who testified trrrthtirlly at the hearing regarding Defendant’s Motion To Suppress Evidence. 3. On July 6, 2013, at approximately 4:00 am. a report was made to the Houston Police

Department that three to four black ma] were standing in the area of a white truck and a black Dodge Magnum at 8034 Antoine, Houston, Harris County, Texas, in possession of narcotics and weapons. 4. On July 6, 2013, shortly afier 4:00 a.m., Officers Joseph Little and Matthew Little responded to the reported disturbance at 8034 Antoine, Houston, Harris County, Texas, involving three

to four black males allegedly in possession of narcotics and Weapons in the nreaof a white truck and a black Dodge Magnum. 5. 8034 Antoine, Houston, Harris County, Texas, is in a high crime area known for narcotics, and the officers arrived on scene at approximately 4:00 a.rn., in the hours of darkness. When the officers arrived at 8034 Antoine, Houston, Harris County, Texas, they observed three biack males in the area of a white truck, and a black Dodge Magnum within three parking spaces of the white truck, confirming several pieces of information fiorn the report.

The oflieers briefly detained each of the three men, includingthe Defendant, Jason Plaeide, in order to safely investigate and ensure the continued presence of the suspects in the scene.

At the time the Defendant was detained, the scene of the investigation was not yet secure, and the officers could not be certain whether there were unsecured weapons in the area. 9. There was no significant show of force during the investigative detention. 10. As part of the detention, the Defendant was frislted for weapons, handcuffed, and placed in the back of a patrol car.

ll. While conducting their brief investigation with the help of a third HPD ofiicer, Ofiicers Joseph Little and Matthew Little looked into the window of the black Dodge Magnum vehicle (with the aid of a 360 lumen flmhlight) fiom outside the vehicle, and observed what

they both believed to be marijuana, based on their training and experience.

12. The Defendant admitted to officers that the black Dodge Magnum was the vehicle he had been driving and that he lived at the same address where the vehicle was registered. l3. The Defendant was an-rated afier the discovery and recovay of the marijuana, and after he was linked to the black Dodge Magnurn through his statements. QONQLQ $038 OF LAW The officer’: testimony established specific, articulable facts (the confirmed details of the

call, the nature of the high crime area, time of night, and presence of the suspects in

suspicious circumstances) and reasonable inferences substantial enough to support

reasonable suspicion that the suspects had b engaged in criminal activity.

The investigative detention of the Defendant was lawful, in order to ensure officer safety, maintain the status quo, and ensure the continued presence of the Defendant during the

course of a brief investigation, taking into consideration the nature ofthe area, time of night,

and verified details of the call. State v. Sheppard, 27l S.W.3d 28l, 291 (Tex. Crim. App. 2008); Chamber: v. State, 397 S.W.3d 777 (Terr. App.-Houston [!4"‘ Dist} 2013). 3. The marijuana in the black Dodge Magnum was in plain view and immediately reeogniuble to the ofliccts as contraband, and the officers involved viewed the marijuana from a location where they were legitimately and lawfully present. 4. The officers involved had probable cause to search the black Dodge Magnum, and the seizure of the narcotics without a warrant was lawful under the automobile exception.

5. Probable cause to arrest the Defendant did not exist prior to his statements linking him to the

black Dodge Magnum. 6. The officers used only a minimal amount offorce required to investigate, maintain the status quo, and ensure ofiicet‘ safety. 7. The statements of the Defendant in regards to his connection to the black Dodge Magnum were made during an investigative detention that had not evolved into custodial interrogation, and therefore are admissible pursuant to Article 38.22 of the Texas Code of Criminal Procedure.

ELISE

IT IS HEREBY ORDERED THAT THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW be made a part of the record in this cause pursuant to the Team Code of Criminal Procedure.

SIGNED AND ENTERED this 10" day ofMarch, 2014 ED Img.Lngnltl '

glutrlct clerk

‘77?«/Lb/3/b«cu«._ Marc W. Brown _ W9" MAR 1 0 7.014

"'9'" ',,_,

1 .3 Sittingbx assignment for the 130 District Court Harris County, Texas /, Order filed January 7, 2014, Withdrawn, Appeal Reinstated and Order filed March 18, 2014

NO. 14-13-00725-CR

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 1353416

ORDER On January 7, 2014, this Court issued an order abating the appeal and directing the trial court to submit findings of fact and conclusions of law on the

voluntariness of appelIant’s statement.

On March 14, 2014, a supplemental clerk's record was filed containing the trial court’s findings of fact and conclusions of law. Therefore., our order of January 7, 2014, is withdrawn. The appeal is reinstated. The State’s brief is due April 17,2014.

PER CURIAM Affirmed and Memorandum Opinion filed September 25, 2014.

In The

Ellnurteeutli (Enurt nf Appeals

N0. 14-13-00725-CR

On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 1353416

MEMORANDUM OPINION Appellant Jason Michael Placide appeals his conviction for possession of cocaine. In two issues, appellant argues the trial court erred in denying his motion to suppress because (I) the officers lacked reasonable suspicion to detain him; and

(2) his statement was made as a result of custodial interrogation and was inadmissible under article 38.22, section 3 of the Texas Code of Criminal Procedure. We affirm. BACKGROUND Appellant was indicted for possession of between one and four grams of cocaine. See Tex. Health & Safety Code § 481.1 l5(c). Appellant filed a pretrial motion to suppress in which he argued that a Houston Police officer “broke into”

his vehicle and searched the vehicle without consent. Appellant argued that “[a]ny

controlled substances found in the vehicle” should be suppressed because the

search was without a warrant and without probable cause. Appellant also sought suppression of “[a]ny other matters that the Court finds should be suppressed upon hearing of this motion.” Appellant argued that the evidence should be suppressed

because (1) the narcotics were not in plain view in the vehicle; and (2) the vehicle search was not incident to a lawful arrest.

At the hearing on appellant’s motion to suppress Officer Joseph Little of the Houston Police Department testified that at approximately 4:00 a.m. on July 6,

2012, he was patrolling the north side of Houston in an area known for narcotics

and crime. He received a dispatch call for a disturbance at an apartment complex

located at 8034 Antoine. The 911 caller reported three or four African-American males using narcotics and loading guns while standing outside a white truck near a black Dodge Magnum. When Little arrived at the apartment complex he observed three African-American males standing outside of a white pickup truck near a

black Dodge Magnum. He identified appellant as one of the men he saw that night. Because Little had received a report that the men were loading weapons, he detained all three men, handcuffed them, and placed them in separate patrol cars.

In conducting his investigation, Little shined a flashlight into the black

Dodge Magnum, and observed narcotics on the car’s console. Little saw a bag of marijuana and a bag of clear pills with no label on them. Little asked appellant if

the black Dodge Magnum was his car, and appellant “admitted that that was his car

2 and he had been driving it and he lives at the registered address.” Appellant was arrested after the marijuana and pills were discovered in the vehicle. After

appellant was arrested, officers found crack cocaine in the vehicle. The pills also

tested positive for cocaine.

On cross-examination, Little testified that he did not know the identity of the 911 caller. The officers searched -all three men, but did not find weapons.

Officer Matthew was also on the scene and testifled to the same events.’

Matthew Little testified that the three men were detained because the call reported they were loading weapons. The men were handcuffed for officer safety and placed in the patrol cars so they could not flee the scene until the investigation was complete.

Appellant testified that the car belonged to his mother and he had no knowledge of drugs in the car. On cross-examination, appellant admitted more than one prior conviction for possession of controlled substances but could not remember an exact number of prior convictions. Appellant believed he was under arrest at the time he was handcuffed and placed in the patrol car.

During his closing statement, appellant’s counsel argued that (1) appelIant’s statement that he owned the car should be excluded because he was under arrest

and officers did not read his It/firanda rights;2 and (2) the evidence should be excluded because the search was warrantless and not a proper inventory search incident to arrest. The State argued that the officers had reasonable suspicion of a threat to their safety as a result of the potential weapons reported in the police

dispatch. Officers detained appellant and the other individuals for their safety

' We refer to Joseph Little as ‘‘Little'’ throughout this opinion and refer to Matthew Little as "Matthew Little.” 2 See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

3 while they conducted an investigation. The investigation revealed marijuana in plain view on the console of the black Dodge Magnum. The State further argued that appellant’s argument about his statement fell outside the scope of the hearing.

The trial court made findings of fact and conclusions of law with the following preface:

During the aforementioned hearing, in addition to urging the suppression of physical evidence, the Defendant also urged suppression of certain oral statements, although such statements were NOT mentioned in the MOTION TO SUPPRESS. At the conclusion of said hearing, this Court denied the aforementioned MOTION TO SUPPRESS. This Court makes the following FINDINGS OF FACT AND CONCLUSIONS OF LAW with regard to BOTH the physical evidence seized and the oral statements made by the Defendant, while not conceding that the consideration of such statements was properly before the Court based on the aforementioned MOTION TO SUPPRESS: Findings of Fact

1. The Defendant, Jason Michael Placide, was charged by indictment in the above styled and numbered cause with the felony offense of Possession of a Controlled Substance. 2. Officers Joseph Little and Matthew Little of the Houston Police Department are credible and reliable witnesses who testified truthfully at the hearing regarding Defendant’s Motion To Suppress Evidence.

3. OnJuly 6, 2013, at approximately 4:00 a.m. a report was made to the Houston Police Department that three to four black males were standing in the area of a white truck and a black Dodge Magnum at 8034 Antoine, Houston, Harris County, Texas, in possession of narcotics and weapons. 4. OnJuly 6, 2013, shortly after 4:00a.m., Officers Joseph Little and Matthew Little responded to the reported disturbance at 8034 Antoine, Houston, Harris County, Texas, involving three to four black males allegedly in possession of narcotics and weapons in the area of a white truck and a black Dodge Magnum. 5. 8034 Antoine, Houston, Hairis County, Texas, is in a high crime

4 area known and the officers arrived on scene for narcotics, at approximately 4:00 a.m., in the hours of darkness. 6. When the officers arrived at 8034 Antoine, Houston, Harris County, Texas, they observed three black males in the area of a white truck, and a black Dodge Magnum within three parking spaces of the white truck, confirming several pieces of information from the report.

7. The officers briefly detained each of the three men, including the Defendant, Jason Placide, in order to safely investigate and ensure the continued presence of the suspects at the scene. 8. Atthe time the Defendant was detained, the scene of the investigation was not yet secure, and the ofiicers could not be certain whether there were unsecured weapons in the area. 9. There was no significant show of force during the investigative detention.

10. As of the detention, the Defendant was frisked for weapons, part handcuffed, and placed in the back of a patrol car. 11. While conducting their brief investigation with the help of a third HPD officer, Officers Joseph Little and Matthew Little looked into the window of the black Dodge Magnum vehicle (with the aid of a 360 lumen flashlight) fiom outside the vehicle, and observed what they both believed to be marijuana, based on their training and experience. 12. The Defendant admittedto officers that the black Dodge Magnum was the vehicle he had been driving, and that he lived at the same address where the vehicle was registered. 13. The Defendant was arrested after the discovery and recovery of the marijuana, and after he was linked to the black Dodge Magnum through his statements. Conclusions of Law 1. The officer’s testimony established specific, articulable facts (the confirmed details of the call, the nature of the high crime area, time of night, and presence of the suspects in suspicious circumstances) and reasonable inferences substantial enough to support reasonable suspicion that the suspects had been engaged in criminal activity. 2. The investigative detention of the Defendant was lawful, in order to ensure officer safety, maintain the status quo, and ensure the continued presence of the Defendant during the course of a brief

5 investigation, taking into consideration the nature of the area, time of night, and verified details of the call. State v. Sheppard, 271 S.W.3d 281,291 (Tex. Crim. App. 2008); Chambers v. State, 397 S.W.3d 777 (Tex. App.—Houston [14th Dist.] 2013). 3. The marijuana black Dodge Magnum was in plain view and in the immediately recognizable to the officers as contraband, and the officers involved viewed the marijuana fiom a location where they were legitimately and lawfully present. 4. The had probable cause to search the black Dodge officers involved Magnum, and the seizure of the narcotics without a warrant was lawful under the automobile exception. 5. Probable cause to arrest the Defendant did not exist prior to his statements linking him to the black Dodge Magnum. 6. The officers used only a minimal amount of force required to investigate, maintain the status quo, and ensure officer safety. 7. The statements of the Defendant in regards to his connection to the black Dodge Magnum were made during an investigative detention that had not evolved into custodial interrogation, and therefore are admissible pursuant to Article 38.22 of the Texas Code of Criminal Procedure. STANDARD or REVIEW We review a trial court’s denial of a motion to suppress for abuse of discretion. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Thomas v. State, 297 S.W.3d 458, 459 (Tex. App.~Houston [14th Dist] 2009, pet. ret’d).

We review the evidence in the light most favorable to the trial court’s ruling.

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). The trial court is

the exclusive factfinder and judge of the credibility of the witnesses. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Turner v. State, 252 S.W.3d 571, 576 (Tex. App.——l-louston [14th Dist.] 2008, pet. refd). We afford almost total

deference to the trial court’s determination of historical facts supported by the

record, especially when the trial court’s findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. 6 App. 1997). We afford the same amount of deference to the trial court’s ruling on mixed questions of law and fact if the resolution of these questions tums on an evaluation of credibility and demeanor. Id. We review questions not turning on credibility and demeanor de novo. Id. If the trial court’s decision is correct under any theory of law applicable to the case, the decision will be sustained. Estrada v.

State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

PRESERVATION or ERROR In his first issue appellant argues his statement was the fruit of a Fourth Amendment violation because the officers did not have reasonable suspicion to

detain him. The State argues appellant failed to preserve error with regard to the

denial of his motion to suppress his statement because appellant’s written motion

to suppress only sought to suppress the physical evidence recovered from the car,

A motion to suppress is a specialized objection to the admissibility of

evidence and must be timely and sufficiently specific to inform the trial court of

the complaint. Johnson v. State, 171 S.W.3d 643, 647 (Tex. App.—Houston [l4th Dist.) 2005, pet. refd). To preserve error for appellate review, an appellant must “let the trial judge know what he wants, why he thinks himself entitled to it, and . .

. do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

Appellant’s written. motion specifically sought to suppress the physical

evidence recovered from the car, and vaguely sought suppression of “[a]ny other matters that the Court finds should be suppressed upon hearing of this motion.” During the oral hearing on appellant’s motion to suppress, appellant argued that his

statement should be suppressed because he was in custody at the time he made it

and ofiicers did not inform him of his Miranda rights. We assume for purposes of 7 the analysis below that appellant’s argument at the hearing regarding suppression

of his statement sufficed to preserved error.

Appellant also argues on appeal that the officers lacked reasonable suspicion to detain him and that his statement was an impermissible fruit of that Fourth

Amendment violation. Appellant did not bring such a contention to the attention of the trial court either in his written motion to suppress or during the oral hearing; he

did not ask the trial court to decide the issue of reasonable suspicion and issue a

ruling. His motion failed to preserve his contention on appeal because it did not alert the trial court that he wished the issue to be decided. See Tex. R. App. P.

33.l(a)(1) (requiring, in order to preserve error, sufficient specificity to make trial

court aware of complaint and ruling by court on complaint); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that issue on appeal must comport with complaint made at trial).

On appeal, appellant argues the officers failed to corroborate the facts of the

dispatch that indicated the occurrence of criminal activity. Appellant did not make this argument to the trial court; instead, he argued that the search of the vehicle was improper because (1) the officers could not have seen the contraband in plain

view, and (2) the search was not conducted as a proper inventory search after arrest. We conclude that appellant did not preserve this contention for appeal because neither his written motion nor his arguments at the hearing alerted the trial

court to a contention that the officers lacked reasonable suspicion justifying an

investigation. Additionally, appellant did not secure a ruling on such a complaint. See Tex. R. App. P. 33.1(a)(l); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (concluding that when appellant failed to object to admission of

statement at motion-to—suppress hearing on ground for suppression raised on

appeal, but instead, argued a different basis for suppression, issue was not preserved); Mbugua v. State, 312 SW3d 657, 666-67 (Tex. App.—Houston [lst

Dist] 2009, pet. refd) (holding that appellant did not preserve his complaint regarding admissibility of his custodial statement because complaint on appeal did

not comport with grounds argued in motion to suppress). We overmle appe1lant’s first issue.

CUSTODY In his second issue, appellant argues his statement concerning ownership of

the car was the product of a custodial interrogation. Appellant argues the statement

was inadmissible because he did not receive warnings under Miranda.

The Fourth Amendment and article 38.22 of the Texas Code of Criminal Procedure allow admission of noncustodial statements. See, e.g., Miranda, 384 U.S. at 444; Dowthitf v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). Thus.

to determine whether appell-a.nt’s statement about ownership of the car was

admissible, we must first detennine the point at which officers placed appellant in custody.

A police officer may stop and briefly detain a person reasonably suspected

of criminal activity in the absence of probable cause to arrest the person. Terry v.

Ohio, 392 US. l, 22 (1968). The officer may use such force as is reasonably necessary to effect the goal of the stop: investigation, maintenance of the status

quo, or officer safety. Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App.), cert. denied, 522 U.S. 894 (1997). There is no bright-line, test providing that mere handcuffing is always the equivalent of an arrest. Id. at 118. Instead, when evaluating whether an investigative detention is unreasonable, “common sense and ordinary human experience must govern over rigid criteria.” Ia’.

A police 0fficer’s interaction with a citizen can be classified as an encounter, detention, or arrest. See State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011). “A person is arrested when he has been actually placed under restraint

or taken into custody by an officer or person executing a warrant of arrest, or by an

officer or person arresting without a warrant.” Tex. Code. Crim. Proc. art. 1522; Mount v. State, 217 S.W.3d 716, 724 (Tex. App.——I-Iouston [14th Dist.] 2007, no pet.). But this restraint-of—liberty standard is not adequate when distinguishing between an arrest and a detention because it is a characteristic common to both.

Mount, 217 S.W.3d at 724. Rather, the distinction is a matter of degree depending on the length of the detention, the amount of force employed, and whether the officer actually conducted an investigation. Id.; Woods v. State, 970 S.W.2d 770, 775 (Tex. App.-Austin 1998, pet. refd).

A court must detennine reasonableness from the perspective of a reasonable officer at the scene, making allowances for the fact that officers must often make quick decisions under tense, uncertain, and rapidly changing circumstances.

Rhodes, 945 S.W.2d at 118. Relevant factors in the reasonableness inquiry are the nature of the crime under investigation, the degree of suspicion, the location of the

stop, the time of day, the reaction of the suspect, and whether the officer actually conducted an investigation afier seizing the suspect. Mount, 217 S.W.3d at 725; Chambers v. State, 397 S.W.3d 777, 782 (Tex. App.—Houston [14th Dist.] 2013, pet. refd).

The trial court found that “[t]he investigative detention of the Defendant was lawful, in order to ensure officer safety, maintain the status quo, and ensure the

continued presence of the Defendant during the course of a brief investigation, taking into consideration the nature of the area, time of night, and verified details

of the call.”

During the suppression hearing, Little testified that he received a dispatch

10 describing three or four African—American males using drugs and loading weapons

near a white pickup truck and a black Dodge Magnum at 8034 Antoine. When the officers arrived at 8034 Antoine, they observed three African-American males

standing around a white pickup truck with a black Dodge Magnum parked nearby. For officer safety the officers patted down the three men, handcuffed them, and placed them in separate patrol cars. Little testified that although they found no weapons during the pat-down search the handcuffs were necessary for the officers’

safety, and detention in the patrol cars was necessary to prevent the suspects from fleeing. The officers then shined a flashlight into the white pickup truck and the

black Dodge Magnum. In response to Little’s question, appellant admitted the

Dodge Magnum was his vehicle.

Although Little detained appellant in the patrol car with handcuffs, the amount of force was reasonable under the circumstances. The incident took place

at 4:00 a.m. in a parking lot in a high-crime area where Little had previously

responded to narcotics and weapons calls. Little conducted a brief investigation in which he discovered narcotics in a car appellant admitted to be his. The trial

coutt’s finding that Little did not use more force than reasonably necessary to

protect himself and those around him during his brief investigation is supported by the evidence at the hearing. See Balenline v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (handcuffing and escorting appellant to patrol car did not transform

investigative detention into arrest where officer had reasonable concem for safety because he was investigating crime involving a weapon).

Appellant argues the officers depri\ ed him of his freedom to a degree comparable to a formal arrest. In support of his argument, appellant cites Ramirez v. State, l05 S.W.3d 730, 740 (Tex. App.—Austin 2003, no pet.), and Alford v.

State, 22 S.W.3d 669, 672 (Tex. App.—Fort Worth 2000, pet. ref’d). Ramirez and

ll Alford are distinguishable.

In Ramirez, an officer who arrived at Ramirez’s home in response to a neighbor’s complaint noticed marijuana paraphernalia, marijuana residue, and the

odor of marijuana as Ramirez stepped out of the garage and closed the door behind him. 105 S.W.3d at 735. A second individual, Reynosa, exited the garage and left the door partially open. Id. at 736. The officer called for back-up because he recognized Reynosa as a suspect in a shooting and became concerned that Reynosa or Ramirez may have had weapons. Id. Reynosa was subjected to a pat down, which revealed a knife and a plastic bag containing marijuana. Ia’. Reynosa was arrested and moved away from the garage. Id. Ramirez was also subjected to a pat

down; while conducting the pat down, the officer told Ramirez he was being detained and placed him in handcuffs. Id. The officer informed Ramirez that he could see drug paraphernalia and drug residue in the garage and asked, “Is there

anything else I’m going to fmd in there that’s illegal, any more marijuana?" Id.

Ramirez replied, “Well, I guess there’s some pot in the red cooler.” Id.

The Austin Court of Appeals determined that Ramirez was in custody at the

time the officer asked whether he was going to find anything else in the garage because a reasonable person in Ramirez’s position would likely believe his freedom of movement had been restrained to the degree associated with an arrest.

Id. at 740. The court determined that by handcuffing Ramirez, telling him he was being detained, and informing him that they had seen illegal items in the garage, a reasonable person would have thought he was under arrest. la’.

The facts in Ramirez are distinguishable because Ramirez was near his

home; had been told he was being detained; and knew the officers had seen illegal

contraband in his garage. In contrast, the officers in this case had a report that there were weapons being loaded and the men were in a parking lot in a high crime area

12 after dark. In Ramirez, unlike this case, the officers did not conduct an

investigation after detaining Ramirez.

In Alford, the appellant was seen driving on an interstate highway passing cars and weaving in and out of lanes. Id. at 671. A police officer activated his siren after following Alford’s truck for a distance; Alford responded by turning off the interstate highway and into the back of a mobile home park. Ia’. When Alford did not heed the officer’s request to get out of the truck, the officer pulled Alford out

of the truck; placed him on the ground; handcuffed him; and called for back-up. Id.

When back—up arrived six or seven minutes later, Alford was still in handcuffs and the arriving officer asked whether he had been drinking. Ia’. at 672. Alford admitted drinking six beers. Id.

The Fort Woith Court of Appeals held that Alford was in custody at the time

he admitted to drinking six beers. The court emphasized that by removing Alford from the vehicle, placing him on the ground, handcufling him, and holding him for back—up officers, the circumstances were elevated beyond those of an ordinary traffic stop. Id. at 673.

Alford is distinguishable because Alford was physically removed from his

truck, placed on the ground, and handcuffed following a traffic stop. Id. at 671.

Alford then remained handcuffed for six or seven minutes until another officer arrived on the scene who questioned him about his alcohol consumption. Id. at

671-72. In Alford, as in Ramirez, no investigation took place, and Alford was “subjected to treatment that resulted in his being in custody for practical purposes.”

Id. at 673.

The facts here are closer to Balentine v. State, 71 S.W.3d at 767. Balentine was placed in handcuffs and escorted to a patrol car while being questioned. Before placing Balentine in the patrol car, an officer frisked him and did not find

13 any weapons. Id. Despite finding no weapons, the officer handcuffed Balentine, placed him in a patrol car, and drove Balentine to a friend’s home. Ia’. Before being released Balentine was patted down a second time and handcuffed for officer

safety despite the fact that the officer did not find any weapons. Id. The Court of Criminal Appeals concluded that Balentine’s detention was not an arrest based on the circumstances surrounding the investigation. Id. at 771. The court determined that the detention was temporary and that the handcuffs and placement in the patrol

car did not elevate the temporary detention to an arrest because the officer

encountered Balentine in an area where gunfire had been reported; Balentine exhibited suspicious behavior; and the restraint was necessary for officer safety

while investigating Balentine’s possible involvement in gunfire. Id. at 771.

We conclude that Little’s investigative detention of appellant was reasonable and justified under the circumstances and did not constitute an unlawful arrest. The trial court did not abuse its discretion in denying the motion to suppress appel1ant’s oral statement. We overrule appellant’s second issue. We affirm the trial court’sjudgment.

/s/ William J. Boyce Justice

Panel consists of Justices Boyce, Jamison, and Donovan. Do Not Publish —- Tex. R. App. P. 472(1)).

14 i\\‘.3EFTED ‘I4-I3-O(}7225-C11 FOURTEENTH COURT OF APPEIZ‘. HOUSTON. TEXAS 10/24/2014 4:55:52 FL’! '3HRl5TOP‘r|ER PRSN CLERK

NO. 14-1'3‘-O072S.CR

IN THE F°‘j_§T5ENTH CQVRT OF APPEAIl§m COFl5ll§'lPO"l=‘ APPEALS HOUSTON. TEXAS HOUSTON. TEXAS 10/24/2014 4:55:52 PM * * * CHRISTOPHER A. PRiNE Cierk

JASON MICHAEL PLACID5. Appellant,

THE STATE OF TEXAS, Appellée.

~ Iii!!!

Appeal fmm the 180"‘ Criminal District Court Harris County, Texas (Cause No. 1,353, 446)

Mo'1*‘r¥3N?n‘o1*zn1:H”Ei&R1Nc

T0 "ms HONORABLE"_QIf cognr OF APPEALS: .

H

Appellant Jason Michael Placideimoves this Court far rehearillg lpulsuant tO_ _

Rule 49, Texas Rules of A;ppg§}g$

would respectfully show the Court thaefollbwing:

In his brief on the merits, Appellant contended that his statement to his

arresting officer was the llflliiestilgafivehélefenfion that violated the Fourth

Amendment for lack of reasonable Eizefiicion and also exceeded its permissible

scope. In the altemaltive, Agpellant‘-afgitned his’ interrogation violated the Fiflh Amendment and Article 38.22 of the Texas Code of Criminal Procedure for lack of

Miranda warnings beforehand.

After Appellant submitted his brief, but before the State had filed one, this

Court apparently interpreted Appellant's second argument as a challenge to the

voluntariness of his statement On its oiivn motion, the Court abated this appeal on January 7, 2014, and directed the trial court to make written findings of fact and

conclusions of law on the voluntariness of Appellant's statement, and ordered it to

return those finding to the Court Within thirty days.

Three months before the Court unilaterally took its action, however, the

governor had elevated the judge of the 180'“ District Court to a position on this

Court. Sitting by assignment as the presiding judge of the 180“ District Court, that

justice signed the Findings of Fact and Conclusions of Law proposed by the State

on March 10, 2014 — eight months after the conclusion of the suppression hearing.

The district clerk filed 8, Supplemental Record containing those findings on March

14, 2014. Four days later the Court reinstated this appeal, and directed the State to

file its brief within thirty days;

By ordering the State to tile its brief, and by not giving Appellant an

opportunity to first re-brief his appeal as it has done in other cases in the past, this

Court deprived the Appellant of his chance to challenge the trial court’s findings of

fact and the reasoning supporting its conclusions of law, which this Court included in its opinion verbatim without question. The effort to provide this indigent

defendant a fair opportunity to challenge at least once all errors arising in his

prosecution should lead this Court to vacate its judgment and opinion, and allow

Appellant to re-brief his appeal in light of the trial court’s findings of fact and

conclusions of law. Anything less raises due process concerns. See Tex. R. App. P.

38.7 (“A brief may be amended or supplemented whenever justice requires, on

whatever reasonable terms the court may prescribe"). Wilson v. State, 296 S.W.3d

140, 143 (Tex. App.-Houston [14 Dist] 2009, pet. ref'd) (past example). See also

Stewart v. Coldwell Banker & Company, 552 S.W.2d 904, 906 (Tex. Civ. App.-— Houston [1“ Dist] 1977, writ ref‘d n.r.e.) (lack of prejudice); Costley v. State Farm

Fire and Casualty C0,, 894 S.W.2d 380, 387(Tex. App.-—Amarlll0 1997, writ

denied) (issue arising during appeal). Cf Reich-Bacat v. State, 952 S.W.2d 542,

543 (Tex. Crim. App. 1997) (mandatory opportunity to re~brief on remand from

Texas Court of Criminal Appeals flows fi'om indigent’s right to counsel); Oliver v.

State, 891 S.W.2d 651 (Tex. Crim. App. 1995) (same); Theus v. State, 863 S.W.2d

489, 491 (Tex. Crim. App. 1993) (same)

WHEREFORE, PREMISES CONSIDERED, Appellant Jason Michael

Placide respectfiilly asks this Court to grant this Motion for Rehearing, to withdraw

its Judgment and Opinion, and allow Appellant to re-brief this appeal in light of the findings of fact and conclusions of law submitted in response to its. abatement

order.

Respectfillly submitted,

By: A/L q;-’.(_.g;..« ‘fig-»z<£q,¢l_,_‘_ MICHAEL A. McENRUE TBC 13413589050 PO. Box 70978 Houston, Texas 77270-0978 (713) 862-1975 (713) 864-8587 mmcenrue@]ustice.com

ATTORNEY FOR APPELLANT Certificate of Compliance

Pursuant to Texas Rule of Appellate Procedure 9.4(i) (3), I hereby certify

that the word count in the foregoing Appel1ant’s Motion for Rehearing calculated

under Rule of Appellate Procedure 9.4(i) (2) is 734 words.

L4 '¢='~Cv{.~., \ »S7,.,4-,£A_.._. Michael A. McEnrue Certificate of Service.

I hereby certify that a true copy of the foregoing Appel1ant’s Motion for

Rehearing was sent to the following patties or counsel of record this 24th day of

October, 2014 by mail in compliance with Rules 9.5, Texas Rules of Appellate

Procedure:

Eric Kugler Assistant District Attorney 1201 Franklin, Sixth Floor Houston, Texas 77002

A. 11,4-,¢'r¢. xeé 4‘! v-/A/:4/5—c.w‘- Michael A. McEnrue