ACCEPTED 13-15-00031-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 5/26/2015 10:08:42 AM DORIAN RAMIREZ CLERK
NO. 13-15-00031-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TX 5/26/2015 10:08:42 AM DORIAN E. RAMIREZ Clerk ______________________________
STATE OF TEXAS, APPELLANT
VS.
KIMBERLY FORD, APPELLEE
______________________________
APPEAL FROM THE 105TH DISTRICT COURT NUECES COUNTY, TEXAS TR. NO. 13-CR-0073-D
BRIEF FOR THE APPELLEE ______________________________
Irma Mendoza Sanjines S. B. N. 17635655 Wilson Plaza West, Ste. 504 P. O. Box 4005 Corpus Christi, TX 78469-4005 Tel.: (361) 883-6106 Fax: (361) 883-9650 irmasanjines@aol.com
Oral Argument Requested CERTIFICATE OF INTERESTED PERSONS
1. Parties:
The State of Texas–Appellant Mark Skurka Nueces County District Attorney
Kimberly Ford -Appellee 902 South Timothy St. Corpus Christi, TX 78418
2. Counsel for Appellant:
Trial: Michelle Putnam Asst. District Attorney 901 Leopard, Rm. 206 Corpus Christi, TX 78401
Appellate: A. Cliff Gordon Asst. District Attorney Corpus Christi, TX 78401
3. Counsel for Appellee:
Trial: Jason Wolf 410 Peoples St. Corpus Christi, TX 78401
Appeal: Irma M. Sanjines
4. Trial Judge: The Hon. Jack Pulcher Presiding Judge, 105th District Court
i TABLE OF CONTENTS Page Certificate of Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-5
Standard of Review/Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-15
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ii INDEX OF AUTHORITIES
Cases Page Akin v. Dahl, 661 S.W. 2d 917, 921 (Tex. 1983), cert. denied, 466 U. S. 938, 80 L.Ed. 2d 460, 104 S.Ct. 1911 (1984) . . . . . . . . . . . . . . . . . . . 11
Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 2416-17, 110 L.Ed. 2d 301 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004) . . . . . . . . . . . . . . . 1
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.Crim.App. 2011) . . . . . . . . . . 9
Ethington v. State, 819 S. W. 2d 854, 858 (Tex. Crim. App. 1991) . . . . . . . . . . . 10
Ford v. State, at 305 SW3d 530(Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . 1
Hawkins v. State, 214 S.W. 3d 668(Tex. App.-Waco 2007). . . . . . . . . . . . . . . . . . 3
Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011). . . . . . . . . . . .7
Sims v. State, 980 S.W. 2d 538 (Tex. App.-Beaumont 1998) . . . . . . . . . . . . . . . . 8
State v. Castleberry, 332 S.W. 3d460, 466 (Tex. Crim. App. 2011) . . . . . . . . . . . 9
State v. Griffey, 241 S.W.3d 700, 704( (Tex. App. –Austin 2007, pet. ref’d). . . .10
State v. Ross, 32 S.W. 3d 853, 855 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . 8
State v. Thirty Thousand Six Hundred Sixty Dollars, 136 S.W. 3d 392(Tex. App.-Corpus Christi 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Stewart v. State, 611 S.W. 2d 434 (Tex. Crim. App. 1981). . . . . . . . . . . . . . . . . . .13
Terry v. Ohio, 392 U. S. 1, 21-22, 88 S.Ct. 1868(1968)). . . . . . . . . . . . . . . . . . . . .9
iii Thompson v. State, 244 S.W. 3d 357 (Tex. App.-Tyler 2006). . . . . . . . . . . . . . . .12
Tucker v. State, 990 S.W. 2d 261, 262 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . 9
Statutes and Rules
Tex. Penal Code Ann §31.03(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
TEX. R. APP. Proc. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
TEX. R. APP. PROC. 39.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT
Appellee requests oral argument because the facts and legal arguments as to
the issue presented herein would be significantly emphasized and clarified by oral
argument and the decisional process would be aided. TEX. R. APP. PROC. 39.2.
iv STATEMENT OF THE CASE
Appellee (Ford) was charged in an Indictment with Possession of
Methamphetamine less than four grams, a third degree felony. (CR p. 5). 1
Ford filed a Motion to Suppress which had been reset twice prior to its final
setting of December 10, 2014 due to the State’s inability to produce their main
witness. The State’s oral motion for continuance at the third setting was denied
and the trial court proceeded to hear oral argument based on the State’s unsworn
police report, introduced as State’s Exhibit 1. (3 RR, Exhibit 1).2 The trial court
granted the Motion to Suppress. (CR 29)(2RR p. 20).
1 “CR” refers to clerk’s record on appeal followed by page number using pagination by the clerk of this court. 2 “RR” refers to reporter’s record as prepared by Evelyn Aguilar, court’s reporter, using her volume and pagination.
1 STATEMENT OF FACTS
The State indicted Ford on June 5, 2014 with possession of a controlled
substance, less than four grams of methamphetamine. The State subpoenaed five
individuals involved in this arrest on or about July 10, 2014. Ford filed her
Motion to Suppress on October 7, 2014. (CR pp. 5-23).
The trial court heard Ford’s Motion to Suppress on December 10, 2014 after
denying the State’s oral motion for continuance, the State’s third continuance
motion, due to the State’s continuing inability to acquire their main witness, M.
Rogers. (2 RR p. 6). As a last minute effort to rob the trial court of its ability to
hear the motion to suppress, the State tendered an unfiled Motion to Dismiss
which was later withdrawn by the State. (2RR p. 8).
At the hearing, the Defendant argued that it was a warrantless search as
supported by the State’s police report. (3 RR, Exhibit1). The only evidence
presented by the State was an unsworn police report prepared by Officer Rogers
which the court admitted as State’s Exhibit 1 over the defense’s objection to it’s
admissibility on several grounds. (2 RR pp. 10-13). Ford argued against the
reliability, accuracy, and sufficiency of the entire police report as allowed by Ford
v. State, at 305 SW3d 530 (2 RR p. 12). Ford also objected to the hearsay nature
of the report as per Crawford v. Washington (2 RR p. 13) as well as the legality of
2 the arrest and the incidental search which produced the illegal substance from
Ford’s purse. (2RR pp. 13-15; 3 RR, Exhibit 1at p. 18). When the trial court
admitted the police report, it did so only as to Rogers’ narrative. (2RR p. 14).
The trial court went into a colloquy regarding the totality of circumstances
surrounding the arrest and subsequent search of Ford’s purse. ( 2RR pp. 15-21).
First, the trial court expressed concern as to the credibility of the information
contained in the police report since Rogers’ actions was based upon hearsay of
Maria Molina, the informant, who was not available to the trial court. The trial
court inquired why the State had failed to produce Maria Molina, when Rogers
had initially relied on that very information Molina gave to form reasonable
suspicion and then probable cause, i.e. the identification of Ford and her actions.
The State admitted that they had not attempted to bring Molina to this hearing as a
witness, nor did they attempt to phone her just prior to the hearing. ( 2 RR p. 16).
The judge stated, “There’s no one here to vouch for the credibility of the
information. There is Maria Molina who is an employee of the store who
allegedly called [the police] and gave some information. But, the defendant was
still shopping. . . .” ( 2 RR p. 19).
The trial court also questioned Rogers’ reasoning for probable cause to
arrest and search Ford, Rogers stating in his report that he believed that Ford had
3 the intent to steal because she “was depriving the store from displaying the items
for sale”. The trial court did not believe this was enough to form probable cause to
arrest when one considered that Ford had just told Rogers “she was not done
shopping, and she was going to pay for them before she left....” ( 3RR, Exhibit 1
at 18)(2RR p.19). The trial court stated, “I don’t know an offense associated with
not allowing items to be displayed for sale. He [Rogers] doesn’t say anything
about theft, other than at the very end when says it was obvious to, I guess to him,
that Ford had intentions to steal the items. But she never tried to leave the store
with the items, she didn’t flee when she was approached. She didn’t try to further
hide anything, and she indicated that she was going to pay for them”. ( 2RR p. 19).
The State argued that “asportation” of the items was not required to prove
theft pursuant to Hawkins, 214 S.W. 3d 668. The trial court perused Hawkins and
then distinguished it from Ford’s circumstances by saying “In Hawkins you have
other factors. You have being there when the business isn’t open. You have
climbing a fence. You have fleeing the scene upon contact. You have a lot of
factors that the court could have rightfully taken into consideration for purposes
of, you know, determining the intent, meaning, you know, there was an intent to
deprive.” ( 2RR p. 17). The defense counsel argued that the case differentiated
from Ford’s circumstances in that she was a customer who was inside the store
4 during business hours, shopping, and telling the officer she was still shopping and
was going to pay for them. ( 2 RR p. 16).
The trial court granted the suppression, concluding that the officer acted
prematurely in contacting Ford in the middle of the store and asking about the
items she placed in the purse because “the circumstances left a huge gap for the
court to infer and determine what her intention was. And I think that’s just a too
big a leap at this point, considering her cooperation....” ( 2 RR p. 20). The trial
court found the officer lacked reasonable suspicion to detain Ford at the hearing
when it stated, “the officer did not have sufficient basis to stop and investigate
Ford for theft.” ( 2 RR p. 20).
The issue of whether Ford’s detention was consensual was never raised by
the State at the suppression hearing, either orally or in written response to the
Motion to Suppress.
ISSUES PRESENTED
1. The officer did not have reasonable suspicion to detain Ford.
2. The officer lacked probable cause to arrest Ford.
3. The officer’s search of Ford’s purse was not incident to a lawful
arrest and therefore illegal.
5 SUMMARY OF THE ARGUMENT
1. The officer did not have reasonable suspicion to detain Ford.
The trial court found that Officer Rogers did not have reasonable suspicion
to detain Ford from a totality of the circumstances. ( 2 RR p. 20). It is presumed
that the trial court so found because the facts of the police report reflect that Ford
was still shopping, with a cart and items in that cart, and had not passed nor was
she attempting to pass a purchase point in the store at the time of the officer’s
arrival. Ford had not yet violated the law or done anything unlawful and therefore
her detention was illegal. The officer did not have articulable facts that criminal
activity was afoot. Therefore, Officer Rogers actions at his arrival to stop and
question Ford were premature. Ford yielded to Officer Roger’s show of authority
when he stopped her and therefore was not consensual.
Morever, the police report presents a question of Maria Molina’s, the
informant’s, credibility. It states that Molina told Officer Rogers the customer
(Ford) had come in with a empty purse in order to place store merchandise in it.
Maria Molina would have to be clairvoyant to know that Ford’s purse was empty.
Moreover, Ford had items in her shopping cart that she would have paid for if not
for Molina’s and Officer Rogers’ intrusion, and yet t hose items were totaled up by
Molina to add to the value of the stolen items in this criminal case. The trial court
6 felt that Molina’s testimony at the suppression hearing was essential as Officer
Rogers relied on her information to form a suspicion and probable cause of Ford’s
unlawful behavior. Moreover, cross-examination of Molina was essential on the
issues going to her credibility as an informant. The trial court’s findings that
officer lacked reasonable suspicion to believe Defendant had committed a crime at
the time of the stop should be upheld. (CR pp. 39, 48).
Officer Rogers states in his report that Ford explained to him or told him
during her detention that she had just put the items in her purse, she was not done
shopping, and she was going to pay for them before she left. It was clearly visible
that she had items in her cart. He reports that she lacked nervousness when he
approached her. At this point, Officer Rogers, having received an explanation
from Ford as to her actions, did not have probable cause to arrest Ford for an
unlawful act since it was clear she did not have the specific intent to steal the
items at the point of his encounter with her. The trial court should be upheld in its
findings that the officer did not have probable cause to arrest Defendant. (CR pp.
39, 48)
3. The officer’s search of Ford’s purse was not incident to an
unlawful arrest and therefore illegal.
7 Officer Rogers arrested Ford for depriving the store from displaying
the items for sale. This is not a criminal offense. Once Ford gave her explanation
as to her activity, she should have been cleared and released from her detention.
Because the seizure of the methamphetamine was not incident to a lawful arrest, it
was improper and needed to be suppressed by the trial court. The trial court’s
findings that probable cause did not exist to search Defendant’s purse should be
upheld. (CR pp. 39, 48).
Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, this Court must
apply a bifurcated standard of review, giving almost total deference to a trial
court’s determination of historic facts and mixed questions of law and fact that
rely upon the credibility of a witness, but applying a de novo standard of review to
pure questions of law and mixed questions that do not depend on the credibility
determinations. Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App.
2011).
In a suppression hearing, the trial court is the sole trier of fact and
credibility of witnesses and its weight to be given, such that he may believe or
disbelieve all or any part of a witness’ testimony, even if that testimony is not
8 controverted by any other witness. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App 2000).
If the trial court failed to file findings of fact as to a specific issue, the
evidence is viewed in the light most favorable to the trial court’s ruling, using
court’s implicit findings of facts which are supported by the record. Ross, 32 S.W.
3d at 855. If the trial court’s decision is correct on any theory of law applicable to
the case, the decision should be sustained by this Court. Ross, 32 S.W.3d at 855-
56.
Burden of Proof
The defendant has the initial burden of producing evidence that the police
seized the defendant without a warrant. Once the defendant proves the seizure
was made without a warrant, as in this case, the burden of proof then shifts to the
State to prove probable cause for the arrest and the reasonableness of the seizure.
Sims v. State, 980 S.W.2d 538 (Tex. App.–Beaumont 1998).
ARGUMENTS
1. The officer did not have reasonable suspicion to detain Ford.
The State failed to preserve error for appeal to argue to this Court that
Ford’s stop was consensual. The record lacks any argument or objection at the
9 suppression hearing that the State could have used when Ford’s attorney raised the
issue that the officer lacked reasonable suspicion to detain Ford. To preserve
error, a party must present a timely and specific complaint to the trial judge which
states the grounds for the ruling they seek with sufficient specificity to make the
trial court aware of the grounds or complaint. TEX. R. APP. P. 33.1(a). The
complaint can be made by a request, objection, or motion that was timely and
specific as to the grounds of complaint for the trial court to rule adversely, or to
refuse to rule despite further objection. Tucker v. State 990 S. W. 2d 261, 262
(Tex. Crim. App. 1999). For an objection to be timely, it should be made as
soon as the objectionable nature of the evidence becomes apparent to the
complaining party. Ethington v. State, 819 S. W. 2d 854, 858 (Tex. Crim. App.
1991). Accordingly, Appellant’s issue whether Ford’s stop was consensual should
be overruled. This was an investigatory detention which required reasonable
suspicion. State v. Castleberry, 332 S.W. 3d460, 466 (Tex. Crim. App. 2011).
A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, combined with rational inferences from those facts, would
lead him reasonably to conclude that the person detained is, has been, or soon will
be engaged in criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 914
(Tex. Crim. App. 2011)(citing Terry v. Ohio, 392 U. S. 1, 21-22, 88 S.Ct.
10 1868(1968)). This is an objective standard that disregards any subjective intent of
the officer making the detention and looks solely to whether an objective basis for
the detention exists. We look at only those facts known to the officer at the
inception of the detention. State v. Griffey, 241 S.W.3d 700, 704( (Tex. App.
–Austin 2007, pet. ref’d). The factual basis for stopping a person need not arise
from the officer’s personal observation , but may be supplied by information
acquired from another person provided the facts are adequately corroborated by
the officer, either through personal observation or through confirmation of enough
facts reasonably to conclude the informant’s information is reliable. Alabama v.
White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 2416-17, 110 L.Ed. 2d 301 (1990).
At the time Officer Rogers announced himself to Ford, he had seen no
criminal activity by Ford. He spoke too briefly to Molina, the store employee and
informant, to have known if the information was reliable. In fact, the officer could
have realized that the information was less than reliable when the store employee
stated that Ford had come in with an empty purse, that Ford was still shopping at a
corner of the store, with a cart and items in that cart, and had not passed nor was
she attempting to pass a purchase point in the store at the time of the officer’s
arrival, and Ford did not attempt to run out of the store. Indeed, the trial court felt
that Molina’s testimony at the suppression hearing was essential as the officer had
11 used it to form reasonable suspicion. It also believed that Molina’s information
was less than credible as restated by Officer Roger in his police report. The trial
court’s finding that the officer lacked reasonable suspicion to detain Ford should
be upheld.
Arrests require a warrant or probable cause. Probable cause exists when the
facts and circumstances are such that it would excite a reasonable mind that the
person was guilty of the crime of which he is charged with. Akin v. Dahl, 661 S.W.
2d 917, 921 (Tex. 1983), cert. denied, 466 U. S. 938, 80 L. Ed. 2d 460, 104 S. Ct.
1911 (1984).
The probable cause determination asks whether a reasonable person would
believe that a crime had been committed given the facts as the complainant
honestly and reasonably believed them to be before the criminal proceedings were
instituted. Akin v. Dahl, 661 S. W. 2d at 920-21. Whether probable cause is a
question of law or a mixed question of law and fact depends on whether the parties
dispute the underlying facts. When the facts underlying the defendant’s decision
to prosecute are disputed, the trier of facts, the court in this instance, must weigh
evidence and resolve conflicts to determine if probable cause exists, as a mixed
question of law and fact. When the facts are not contested, and there is no conflict
12 in the evidence directed to that issue, the question of probable cause is a question
of law which is to be decided by the court.
Officer Rogers states in his report that Ford explained to him or told him
during her detention that she had just put the items in her purse, she was not done
shopping, and she was going to pay for them before she left. It was clearly visible
that she had items in her cart. He reports that she lacked nervousness when he
approached her. She had not attempted to pass a cash register, and was in fact,
still at the corner of the store which Molina had described. At this point, Officer
Rogers, having received an explanation from Ford as to her actions, did not have
probable cause to arrest Ford for an unlawful act since it was clear she did not
have the specific intent to steal the items at the point of his encounter with her. A
person commits theft if he unlawfully appropriates property with intent to deprive
the owner of the property. Tex. Penal Code Ann §31.03(a). Appropriation must
be accompanied by the specific intent. Thompson v. State, 244 S.W. 3d 357 (Tex.
App.-Tyler 2006). Officer Rogers states that he arrested her “because she was
depriving the store from displaying the items for sale.” ( 3RR, Exhibit 1 at p. 18).
The trial court believed that the officer arrested for a crime that doesn’t exist and
is not part of the penal code. ( 2 RR p. 19). Moreover, even if theft as a crime was
to be considered, the court found the officer’s actions to be premature. ( 2 RR p.
13 19). The trial court should be upheld in its findings that the officer did not have
probable cause to arrest Defendant. (CR pp. 39, 48)
3. The officer’s search of Ford’s purse was not incident to an unlawful arrest and therefore illegal.
Ford should have been released from detention after Ford offered an
explanation of her intent to pay for the store items, even the items in her purse.
She should have been cleared at that point of any reasonable suspicion of theft the
officer may have reasonably had.
Instead, Officer Rogers proceeded to arrest Ford for “depriving the store
from displaying the items for sale”. This is not a criminal offense. Because the
seizure of the methamphetamine was not incident to a lawful arrest by Tex. Code
of Criminal Procedure Ann. art. 59.03, it was an improper seizure of the drug. An
investigative stop must be temporary and last no longer than is necessary to
effectuate the purpose of the stop, i.e. probable cause for the crime charged. The
stop cannot be used as a fishing expedition for unrelated criminal activity. State v.
Thirty Thousand Six Hundred Sixty Dollars, 136 S,.W.3d 392 (Tex. App.-Corpus
Christi 2004). Ford, at the point that she stated she intended to pay for the items,
had a privacy interest in the contents of her purse. There was no legitimate
governmental interest in discovering weapons, for example, that overrode her
14 expectation of privacy. Stewart v. State, 611 S.W. 2d 434 (Tex. Crim. App. 1981).
The trial court’s findings that probable cause did not exist to search Defendant’s
purse should be upheld. (CR pp. 39, 48).
PRAYER
For the foregoing, Appellee requests this Court to affirm the trial
court’s ruling and for all other relief to which Appellee may be justly entitled to.
Respectfully submitted,
__/s/ Irma Sanjines_______________ Irma Mendoza Sanjines SBN 17635655 P. O. Box 4005 Corpus Christi, TX 78469 Tel: (361) 883-6106 Fax: (361) 883-9650 irmasanjines@aol.com
CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation because it
contains 3, 327 words.
2. This brief complies with the typeface requirements because it
has been prepared using WordPerfect X7 in Times New Roman
14 point font for text and 12 point font for footnotes, in standard 10 cpi typeface.
15 __/s/ Irma Sanjines_______________ Irma Mendoza Sanjines
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Appellee Brief was served upon
A. Cliff Gordon, Assistant District Attorney and Attorney for Appellant by
electronic submission on May 26, 2015.
__/s/ Irma Sanjines_______________ Irma Mendoza Sanjines