No. 06-14-00212-CR

IN THE COURT OF APPEALS FOR THE 

SIXTH JUDICIAL DISTRICT OF TEXAS 

AT TEXARKANA 

___________________________________________________________

TERRY EUGENE GLENN, SR, 

Appellant

VS.

THE STATE OF TEXAS, 

Appellee

____________________________________________________________ 

APPELLANT’S BRIEF

____________________________________________________________

On appeal from 

THE 71ST JUDICIAL DISTRICT COURT, HARRISON COUNTY, TEXAS 

Trial Court No. 12-0455X 

Hon. Brad Morin, Presiding 

APPELLANT REQUESTS ORAL ARGUMENT 

ACCEPTED

06-14-00212-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

4/28/2015 4:31:55 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 4/29/2015 8:57:00 AM DEBBIE AUTREY Clerk
IDENTITY OF PARTIES AND COUNSEL

TERRY EUGENE GLENN, SR, Appellant

Trial Counsel for Appellee:

Honorable Shawn Connelly

Assistant District Attorney

State Bar No. 24051899

Harrison County Criminal District Attorney’s Office

P.O. Box 776

Marshall, Texas 75670

903-935-8408 Telephone

Trial Counsel for Appellant:

Ms. Katherine Betzler

State Bar No. 24066509

400 Repose Lane, Apt. A

Marshall, Texas 75670

210-842-9749 Telephone

Appellate Counsel for Appellant:

Ms. Laura M. Carpenter

State Bar No.08618050 

106 West Houston Street

Marshall, Texas 75671

903-938-7440 Telephone

903-938-3008 Fax

Appellate Counsel for Appellee

Harrison County Criminal District Attorney’s Office

P.O. Box 776

Marshall, Texas 75670

903-935-8408 Telephone

ii.
TABLE OF CONTENTS

Identity of Parties and Counsel.........................................................ii

Table of Contents 

.................................................................................................iii

Index of 

Authorities................................................................................iv-v

Statement of the 

Case.........................................................................................1

Issues 

Presented................................................................................. .2

Statement of 

Facts........................................................................................2

Argument and Authorities for Issue Number One ...............................6

ISSUE NUMBER ONE: The trial court erred in denying Appellant’s 

Motion to Suppress

Argument and Authorities for Issue Number Two..............................12

ISSUE NUMBER TWO: The trial court erred in admitting the 

physical evidence as the State did not present a proper chain of custody

Conclusion...............................................................................14

Prayer......................................................................................15

Certificate of 

Service.....................................................................................16

Certificate of Compliance..............................................................16

iii.
INDEX OF AUTHORITIES

Cases:

Amores v. State, 816 S.W. 2d 407, 413 (Tex. Crim. App. 1991) p. 10

Arizona v. Hicks, 480 U.S. 321, 326-29 (1987) p.11

Ballentine v. State, 71 S.W. 3d, 763, 768 (Tex. Crim.App. 2002) p.8

Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App . 2000) p.8

Christmas v. United States, 314 A.2 473 (D.C. 1974) p.11

Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) p.10

Dossett v. State, 216 S.W. 3d 7, 17 (Tex.App – San Antonio p.13

2006 pet ref’d)

Eisenhauer v. State,754 S.W.2d 159 164 (Tex. Crim. App. 1988) p.9

Ford v, State,158 S.W.3d 488, 492 p.8

Horton v. California, 496 U.S. 128, 136 (1990) p.10

Katz v. United States, 389 U.S. 347, 357 , 88 S. Ct. 507, 19 

L.Ed. 2d 576 (1967) p.6

Keehn v. State,279 S.W. 3d 330, 334 (Tex. Crim. App. 2009) p.10

McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991) p.9

Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000) p.9

Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986) p. 6

Schenckloth v. Bustamonte, 412 U.S. 218, 219 (1973) p.9

State v. Ballard, 987 S.W. 2d 889, 892 (Tex. Crim. App. 1999) p.9

iv.
State v. Garcia-Cantu, 253 S.W.3d 236, 238 (Tex. Crim.App 2008) p.7,8

Terry v. Ohio, 392 U.S. 1, 22 (1968) p.8

Thomas v. State, 572 S.W. 2d 507 (1976) p.11

Villareal v. State, 935 S.W.2d 134, 140 (Tex. Crim.App. 1996) p.12

Statutes:

Texas Constitution p.7

Texas Code of Crim. Proc., 1.04, 1.06, 38.23 p.7

U.S. Constitution,4th, 5th and 14th Amendments p.7,8

v.
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: 

COMES NOW Appellant Terry Eugene Glenn, Sr, by and through 

Appellant’s attorney of record, Laura M. Carpenter, and, pursuant to the 

provisions of Texas Rules of Appellate Procedure 38, et. seq., files this 

brief on appeal.

STATEMENT OF THE CASE

This is an appeal from a conviction for possession of less than one 

gram of cocaine. TERRY EUGENE GLENN, SR was tried and convicted 

by a jury in the 71st Judicial District Court in Harrison County, Texas. After 

enhancement, the Appellant was then sentenced by the jury to 15 years in 

the Institutional Division of the Texas Department of Criminal Justice. 

For clarity, THE STATE OF TEXAS will be referred to as “the State”, 

and TERRY EUGENE GLENN, SR will be referred to a “Defendant” or 

“Appellant.” 

More specifically, this is an appeal from a jury trial held beginning 

October 7, 2014 in the 71st Judicial District Court, Harrison County, Texas. 

Appellant was accused of the offense of Possession of a Controlled 

Substance (cocaine less than 1 gram). Prior to trial, a Suppression hearing 

was held on March 24, 2014 (RR Vol. 2, pp 1-46) and the trial court denied 

the Appellant’s Motion to Suppress. (RR Vol 2, p. 45). A jury was 
selected and empanelled. Evidence was presented by the State and the 

jury found the Appellant guilty. (RR Vol. 4, p. 182). After Appellant pled 

true to enhancements, the punishment trial was held and the jury assessed 

punishment at fifteen years in the Institutional Division of the Texas 

Department of Criminal Justice. (RR Vol. 5, p. 109.) Appellant timely filed a 

Notice of Appeal. Appellant filed a Motion for New Trial. A hearing on the 

Motion for New Trial was heard on December 16, 2014, and Judge Morin 

denied the motion for a new trial. (RR Vol. 6, p. 80.)

ISSUES PRESENTED

POINT OF ERROR ONE

 The trial court erred in denying Appellant’s Motion to Suppress?

POINT OF ERROR TWO

The trial court erred in admitting the physical evidence as there was 

not proper proof of a chain of custody.

STATEMENT OF FACTS

Terry Eugene Glenn, Sr., appellant, was accused of possession of a 

controlled substance, specifically cocaine of less than one gram, on May 

13, 2011, while he was in the road at the intersection of Highway 59 and 
I-20 in Marshall, Texas. Several Marshall police officers were dispatched 

to the area for a disturbance call to find the appellant in the middle of the 

intersection with two other individuals dragging him. In the appellant’s 

hand were his i.d. and a prescription bottle of his ward, James Mike Tobin. 

Without a warrant, without consent, without plain view of drugs, and without

any probable cause, a police officer opened the pill bottle and found 

cocaine. Appellant filed a pretrial motion to suppress the admittance of the 

cocaine in support of the State’s case. The trial judge denied the motion to 

suppress, which the following was detailed at the hearing:

On May 13, 2011, at approximately 11:14 p.m., Office Jason Mobley 

of the Marshall Police Department responded to a call regarding a 

disturbance at the intersection of Highway 59 and Interstate 20. (RR Vol.

2, p. 9). Officer Mobley stated he saw two subjects attempting to drag a 

black male subject out of the middle of the intersection. (RR Vol 2., p. 10). 

The officer identified the black male being dragged as the defendant, Terry 

Eugene Glenn, Sr. (RR Vol 2, p. 11-12). After helping the defendant on the 

side of the road, Officer Mobley took the i.d. and the pill bottle from the 

defendant’s hand without permission. (RR Vol 2, p. 28 and pp. 33-34 ). 

Officer Mobley testified that he did not know what was inside the pill bottle. 

(RR Vol 2, p. 28.) Officer Mobley never asked the defendant if he could 
search inside the pill bottle. (RR Vol. 2, pp. 30-31). The defendant told 

Officer Mobley that he was taking care of someone at Motel 6. (RR Vol 2, 

p. 31.) which explained why the pill bottle did not have the defendant’s 

name on it. Officer Mobley stated that there was no evidence in plain view 

and that he did not suspect the defendant of any crime that involved drugs. 

(RR Vol 2, p. 34.) 

On examination by the prosecutor, the following questions and 

answers by Officer Mobley (RR Vol 2, p. 19):

Q: So did you open the bottle to see what was, in there was in fact, 

since you had been told you said that he was taking Diazapam: I am sorry 

Valium or –

A: Valium

Q: Okay. And taking that in consideration too, did you open the 

bottle to affirm what the substance whether it was consistent with 

what you were told?

A: Yes.

Q: And when you opened the bottle what did you observe?

A: Two small clear plastic baggies and a white rock substance.
On cross-examination, testimony by Office Mobley contradicted his 

previous testimony and established he did not open the bottle but that 

Lieutenant John Johnson had opened the bottle. (RR Vol 2, pp. 34-34.) 

Further, Officer Mobley testified that Lieutenant Johnson did not ask for 

consent to open the bottle. (RR Vol 2, P. 35).

Office Mobley responded to questioning that when he came up to the 

defendant in the road that there was no probable cause to arrest him for 

possession of any kind of drug; that there was no probable cause to arrest 

him for a public disturbance; that there was no probable cause to arrest him 

when the officer took the i.d. and pill bottle from the defendant’s hand; and 

that the officer didn’t know what was inside the pill bottle. (RR Vol 2, pp. 

39-40.) Officer Mobley stated that he was conducting a welfare check and 

that his main concern was getting the defendant out of the road. (RR Vo. 

2, p. 41)

Officer Mobley affirmed that that he did not know what was inside the 

bottle by just looking at it and that he couldn’t see through the bottle at all. 

He had no idea that there was anything other than possibly Valium in the 

bottle. (RR. Vo. 2, p. 31.)
ARGUMENTS AND AUTHORITIES FOR ISSUE ONE

THE TRIAL COURT REVERSIBLY ERRED IN DENYING 

APPEALLNT’S MOTION TO SUPPRESS EVIDENCE, TO WIT: COCAINE 

SEIZED FROM APPELLANT’S PILL BOTTLE, AS SUCH EVIDENCE WAS 

DISCOVERED PURSUANT TO A SEARCH CONDUCTED WITHOUT 

PROBABLE CAUSE AND WITHOUT A WARRANT IN VIOLATION OF 

APPELLANT’S RIGHTS UNDER THE FOURTH, FIFTH AND 

FOURTEENTH AMENDAMENT TO THE U.S. CONSTITUTION, ARITCLE 

1 SECTIONS 9,10,13, AND 19 OF THE TEXAS CONSTITUTION, AND 

ARTICELS 1.04, 1.06 AND 38.23 OF THE TEXAS CODE OF CRIMINAL 

PROCEDURE.

A search conducted without a warrant is presumed to be 

unreasonable. The burden falls on the State to show its reasonableness. 

Russell v. State, 717 S.W. 2d 7, 9-10 (Tex.Crim.App. 1986). “Searches 

conducted outside the judicial process, without prior approval by judge or 

magistrate, are per se unreasonable under the Fourth Amendment –

subject only to a few specifically established and well-delineated 

exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 

L.Ed. 2d 576 (1967).
Article 1, Section 9 of the Texas Constitution also prohibits 

unreasonable searches. Illegal searches are also violation of due process 

and due course of law guaranteed by the 5th and 14th Amendments to the 

U.S. Constitution and Article 1, Section 13 & 9 of the Texas Constitution as 

well as Texas Code of Criminal Procedure Articles 1.04, 1.06 and 38.23.

The Texas Code of Criminal Procedure prohibits the use against 

defendants of evidence that was illegally seized. It reads as follows

Art. 38.23. Evidence not to be used

(a)No evidence obtained by an officer or other person in violation of 

any provisions of the Constitution or laws of the State of Texas, or 

of the Constitution or laws of the United State of America, shall be 

admitted in evidence against the accused on the trial of any 

criminal case.

The Fourth Amendment protects citizens against unreasonable 

searches and seizures by government agents. U.S. Const. amend. 

IV; see State v. Garcia-Cantu, 253 S.W.3d 236, 238 (Tex. Crim. App. 

2008). A seizure is reasonable under the Fourth Amendment if the 

agent reasonable suspects the person of engaging in criminal activity. 
Terry v. Ohio, 392 U.S. 1, 22 (1968); Carmouche v. State, 10 S. W. 

3

rd 323, 328 (Tex.Crim. App. 2000).

A police officer conducts a lawful temporary detention when he 

has reasonable suspicion to believe that an individual is violating the 

law. Ford v. State, 158 S.W.3d 488, 492; Ballentine v. State, 71 S.W. 

3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists 

when, based on the totality of the circumstances, the office has 

specific, articulable facts that, when combined with rational inferences 

from those facts, would lead the officer to reasonably conclude that a 

particular person actually is, has been or soon will be engaged in 

criminal activity. Ford, 158 S.W.3d at 492; Garcia v. State, 43 

S.W.3d 527, 530 (Tex. Crim. App. 2001). This is a wholly objective 

test that disregards any subjective intent of the officer making the 

stop and looks solely to whether an objective basis for the stop 

existed at the time the officer made the stop. Ford 158 S.W.3d at 492; 

Garcia, 43 S.W.3d at 530. A reasonable suspicion determination is 

made by looking at the totality of the circumstances. Ford, 158 S.E. 

3d at 492-93; Garcia, 43 S.W. 3d at 530.

Under the Fourth and fourteenth Amendments to the United States 

Constitution, a search conducted without a warrant issued upon 
probable cause is per se unreasonable, limited to a few welldelineated exceptions. Schenckloth v. Bustamonte, 412 U.S. 218, 

219 (1973); Reasor v. State, 12 S.W. 3d 813, 817 (Tex. Crim. App. 

2000). “ A search prior to the establishment of probable cause can 

never be considered valid” because a police “office could stop a 

vehicle for any reason or no reason, search its passenger 

compartment and then arrest the occupants based on whatever 

evidence is found in the search” State v. Ballard, 987 S.W.2d 889, 

892 (Tex. Crim. App. 1999) Thus, the issue is whether the police 

office had the “existence of probable cause to arrest an appellant 

before the search.”

“Probable cause to search exists when reasonably trustworthy 

facts and circumstances within the knowledge of the officer on the 

scene would lead a man of reasonable prudence to believe that the 

instrumentality of a crime or evidence of a crime will be found.” 

McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). The 

“totality of the circumstances approach applies to 

warrantless...seizures of persons and property.” Eisenhauer v. State, 

754 S.W.2d 159, 164 (Tex. Crim. App. 1988). The “burden is on the 

State to prove the existence of probable cause to justify a warrantless 
arrest or search.” Amores v. State, 816 S.W. 2d 407, 413 (Tex. Crim. 

App. 1991).

The plain-view doctrine is an exception to the warrant 

requirement, which permits an officer to seize what he views in plain 

sight or open view if he is lawfully on the premises. Coolidge v. New 

Hampshire, 403 U.S. 443, 465 (1971). A seizure of an object is 

lawful under the plain view exception if three requirements are 

satisfied: (1) law enforcement officials must lawfully be where the 

object can be plainly viewed, (2) the incriminating character of the 

object in plain view must be immediately apparent to the officials, and 

(3) the official must have the right to access the object. Keehn v. 

State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009).

A plain-view seizure is only permitted if “its incriminating 

character is ’immediately apparent.” Horton v. California, 496 U.S. 

128, 136 (1990). Under such prong, the United States Supreme 

Court explained that the Fourth Amendment requires that a police 

officer have probable cause to believe that the object is one that the

police officer has power to seize, i.e., contraband, fruits or 

instruments of crime, or evidence that a crime was committed or that
a particular person committed it. Arizona v. Hicks, 480 U.S.. 321, 

326-29 (1987).

In Thomas v. State, 572 S.W.2d 507 (1976), the Texas Court of 

Criminal Appeals held in that case that the seizure of pills could not 

be upheld under the plain view doctrine. “Prescription drugs are not 

inherently contraband, stolen goods or objects dangerous in 

themselves. The mere viewing of bottles with drugstore labels on 

them did not authorized the officers to enter the automobile and 

search the jacket or seize the pills.” Id. At 509.

In Christmas v. United States, 314 A.2d 473 (D.C. 1974), the 

District of Columbia Court of Appeals ruled,

The only theory upon which the seizure of the medicine 

vial and the examination of its contents may be sustained 

is that the vial (although not its contents) was in plain 

view.

But even under such circumstances the Court 

admonished...”that plain view alone is never enough to 

justify the warrantless seizure of evidence.” Absent 

therefore probable cause to believe at the time of the 

initial intrusion that the medicine vial contained 

contraband or that it in some way endangered the 

officer’s safety, he had in our opinion no more authority to 

seize the vial and examine its contents than he would 

have had, under the circumstances, to seize and examine 

the contents of a woman’s handbag, a man’s attache 

case, or a grocery bag. Id. At 476.
In this case, Officer Mobley stated he did not have any probable 

cause to arrest the Appellant. Office Mobley continued stating that he 

couldn’t see anything in the pill bottle. It turns out that another officer, 

Lieutenant Johnson actually opened the bottle and stated that it was 

cocaine. There is absolutely no evidence brought forward from the 

prosecution that Lieutenant Johnson had any legal basis to open the 

pill bottle.

At the suppression hearing, Appellant’s counsel argued that he 

had an interest in the pill bottle because he was the nurse taking care 

of the person whose name was on the prescription. (RR Vol 2, p. 44). 

Appellant ran from the hotel room with his ward’s pill bottle clutched 

in his hand to avoid the robbers which demonstrates he had an 

actual, subjective expectation of privacy. As such, the appellant had 

reasonable expectation of privacy in the thing searched. Villareal v. 

State, 935 S.W.2d 134, 140 (Tex. Crim. App.1996). 

ARGUMENTS AND AUTHORITIES FOR ISSUE TWO

THE TRIAL COURT REVERSIBLY ERRED IN ADMITTING THE 

PHYSICAL EVIDENCE OF THE PILL BOTTLE WITH COCAINE.AS 

THERE WAS NO PROPER CHAIN OF CUSTODY
Proof of the beginning and end of a chain of custody will support the 

admission of the evidence in the absence of any evidence of tampering or 

alteration. Dossett v. State, 216 S.W.3d 7, 17 (Tex-App – San Antonio 

2006 pet ref’d)

At trial, Officer Mobley said he took the pill bottle and opened it. (RR 

Vol 4, p. 103) Officer Mobley stated that after he opened the bottle he 

observed inside a plastic bag that had a white rock substance that 

appeared to be crack cocaine. (RR Vol 4, p. 104) Later, Officer Mobley 

states that actually Lieutenant Johnson took the bottle and opened it. (RR 

Vol 4, p. 123). It was Lieutenant Johnson that stated it was crack cocaine 

in the bottle. (RR Vol 4, p. 124). Officer Mobley field tested the bottle with a 

fluid test. (RR Vol 4, p. 124). Then Officer Mobley gave the bottle to Officer 

Joe Chastain. (RR. Vol 2, p. 35.) Officer Mobley testified that he booked 

the Appellant for possession of a controlled substance, 4 grams to 200 

grams. (RR.Vol 4, p. 110). 

Officer Beck testified regarding receiving the pill bottle for evidence 

storage from Officer Mobley. (RR Vol 4, p. 71). Officer Beck took the 

evidence to the Tyler lab. (RR Vol 4, p. 71). Ms. Esparza from the Tyler 

lab testified that the substance weighed 0.72 grams (RR Vol 4, p. 77).
Clearly, there is a question about the beginning of the chain of 

custody based on the contradictory statements from Officer Mobley. He 

begins by stating that he took the pill bottle and opened it and found 

cocaine. Then, he corrects himself and states that Lieutenant Johnson 

actually took the bottle and opened it and proclaimed finding cocaine. 

Lieutenant Johnson was the beginning of the chain of custody. Counsel for 

appellant objected to the chain of custody stating the State had not justified 

the chain of custody. (RR Vol. 4, p. 105). Additionally, there is a question 

on why Appellant is booked in on possession of 4 to 200 grams when the 

lab reports the weight of the substance to be less than 1 gram. 

CONCLUSION

The evidence presented to secure a conviction of the Appellant was 

the result of an illegal search inside the pill bottle and therefore 

inadmissible under the Texas exclusionary rule, (Tex. Code Crim. Pro. Art. 

38.23). There was no warrant, no probable cause, nor any exceptions to 

allow the search inside the seized bottle.

The chain of custody of the pill bottle was not proven from the 

beginning of the chain of custody. Testimony from Officer Mobley was that 

another officer, Lieutenant Johnson, was the first person to take the pill 
bottle and open it and declare cocaine. Coupled with the discrepancy 

between the amount that the Appellant was booked for and the actual 

weight raises clear questions of the beginning of the chain of custody. The 

State had the burden to prove the chain of custody and the State failed to 

call the person who first took the pill bottle and open it.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays this 

Honorable Court of Appeals reverse the conviction in this case and render 

a judgment of acquittal, or if this Honorable Court elects not to render a 

judgment of acquittal, Appellant prays this Honorable Court of Appeals

reverse the conviction and remand the case to the trial court.

Respectfully submitted,

/s/ Laura M. Carpenter

Laura M. Carpenter

Counsel for Appellant

106 W. Houston

Marshall, TX 75672

903-938-7440 tel.

903-938-3008 fax

State Bar No. 08618050
CERTIFICATE OF SERVICE

This is to certify that on April 28, 2015, a true and correct copy of the 

foregoing document was delivered by mail to counsel for the state, Hon.

Coke Solomon, at Harrison County District Courthouse, Marshall, Texas.

/s/ Laura M. Carpenter

Laura M. Carpenter

CERTIFICATE OF COMPLIANCE

I certify that this brief contains 3,591 words according to the computer 

program used to prepare the document.

/s/ Laura M. Carpenter

Laura M. Carpenter