NO. 03-14-0155-CR

* * * 

In The 3rd District 

Court of Appeals of Texas 

* * * 

Jeron DeAngelo Neal 

v.

The State of Texas 

* * * 

Appealed from the 

390th District Court 

Trial Court Cause No. D-1-DC-12-205121

___________________________________________________________________

APPELLANT’S BRIEF

___________________________________________________________________

 John S. Butler 

 State Bar No. 03526150 

 700 Lavaca Street, Suite 1400

 Austin, Texas 78701

 Telephone (512) 472-3887

 Facsimile (512) 233-1787

 Email butler@lawyer.com 

 ATTORNEY FOR APPELLANT 

ORAL ARGUMENT REQUESTED 

ACCEPTED

03-14-00155-CR

3779406

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/15/2015 11:13:33 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/15/2015 11:13:33 AM JEFFREY D. KYLE Clerk
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Identities of Parties and Counsel

Appellant: Jeron DeAngelo Neal

Trial Counsel: Darla Davis

P O Box 28338

Austin, Texas 78755

-andMark Sampson

605 West Oltorf Street

Austin, Texas 78704

Appellee: The State of Texas

Appellant Counsel and

Trial Counsel: Rosemary Lehmberg

Travis County District Attorney

P O Box 1748

Austin, Texas 78767

-byMonica Flores

-andSteve Brand

Assistant District Attorneys

Trial Judge: Hon. Julie Kocurek
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Table of Contents

Identity of Parties and Counsel ...2

Table of Contents ...3

Index of Authorities ...4

Statement Regarding Oral Argument ...4

Statement of the Case ...4

Issues Presented ...5

Statement of the Facts ...5

Summary of the Argument ...7

Argument ...7

Prayer for Relief ...10

Certificate of Compliance ...12

Certificate of Service ...12
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Index of Authorities

Wong Sun v. United States, 371 U.S. 471 (1963) ...9

Silverthorne Lumber Co. v. United States,

251 U.S. 385,392 (1920). ...9

Weeks v. United States, 232 U.S. 383 (1914). ...9

State v. Story, Tex. Crim. App. NO. PD-0590-13 (October 15, 2014) ...10

Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). ...10

Statement Regarding Oral Argument

Due to the fact-intensive nature of the arguments presented herein, 

Appellant requests that the Court hear oral argument.

Statement of the Case

On September 28, 2012, Appellant was arrested for Aggravated Robbery with 

a Deadly Weapon. At a pretrial hearing the trial court granted Appellant’s motion to 

suppress evidence seized from Appellant’s vehicle. However, the trial court denied 

Appellant’s motion to suppress evidence seized from Appellant’s person at the 

scene and at the central booking facility. The case went to trial, whereupon

Appellant was found guilty and sentenced to 22 1⁄2 years in prison. Appellant 
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appeals the trial court’s denial of his motion to suppress evidence seized from his 

person, and the judgment and sentence obtained with the use of said evidence.

Issues Presented

The trial court erred in denying Appellant’s motion to suppress evidence 

obtained in the search of Appellant’s person.

Statement of Facts

On September 28, 2012, at around 2:00 a.m., Alicia Otto and three friends 

were at a sports bar in north Austin when a man, later identified as Appellant, 

approached their table and demanded their money and property. The man grabbed 

Mr. Otto’s purse and ran away. A bartender pursued the man, but turned back when 

he heard a gunshot. The police interviewed the victim and witnesses, and obtained 

surveillance videos from the bar and a nearby Target store. This second video 

shows the robber getting into a black SUV.

Later that morning, around 8:00 a.m., police responded to a “disturbance” 

call. Patsy Harnage (Appellant’s mother) had reported that she and her son had 
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gotten into an argument the previous day, and that he was parked in front of a 

daycare center where she worked. Upon arrival at the location, they had “minimal 

information on what the subject was wearing or driving, et cetera.” (Reporter’s 

Record vol.2 p.57). The police saw no disturbance, and were initially unable to 

locate either Ms. Harnage or her son. They eventually located a black male in a 

black Ford Explorer. When they approached the SUV, they found Appellant asleep 

in the driver’s seat and another person asleep in the back. When the officer tapped 

on the window to gain Appellant’s attention, Appellant woke up “kind of nervous” 

(Reporter’s Record v.2 p.27) and tried to start the vehicle. The officer then opened 

the door had Appellant exit the vehicle. The officer said he saw a hand rolled 

cigarette drop from Appellant’s hand. The officer frisked Appellant for weapons, 

finding none. Appellant was handcuffed and placed in in the back of a patrol unit. 

Appellant was later arrested for possession of marijuana and for outstanding

warrant(s) and taken to jail, where he was searched. Several credit cards were found 

in his possession, with the name of the robbery victim on them. These were 

subsequently introduced as evidence against Appellant at his trial.

A jury convicted Appellant of Aggravated Robbery with a Deadly Weapon, 

and sentenced him to 22 1⁄2 years in prison.
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Summary of the Argument

There was insufficient probable cause for Appellant’s arrest, and therefore 

any evidence seized as a result thereof was illegally obtained. The trial court erred in 

denying Appellant’s motion to suppress the evidence seized from Appellant.

Argument

Justin Flanery of the Austin Police Department was Appellant’s arresting 

officer. His testimony as to his reasons for arresting Appellant lacked credibility, 

contradicting his own testimony, testimony of other witnesses, and the information 

provided to him by other police officers. The arresting officer was incorrect in 

stating that there was an outstanding warrant for Appellant’s arrest. There was

insufficient evidence to support the arresting officer’s conclusory statement that 

Appellant possessed a marijuana cigarette.

At one point he testified that Appellant’s mother (who initially called the 

police) said she saw Appellant with a gun (Reporter’s Record v.2 p.18). He later 

testified that she told him “her husband saw [Appellant] with at her house 

yesterday.” (Reporter’s Record v.2 p.57).

The officer testified that he spoke with Appellant’s mother before detaining 

Appellant. (Reporter’s Record v.2 p.23) and that she pointed out her son to the 
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officer: “Question: So she actually put eyes on the vehicle and told you, ‘That’s his 

vehicle?’ Answer: Yes.” (Reporter’s Record v.2 p.26). He later testified that he 

detained Appellant before ever speaking with Appellant’s mother (v.2 p.58).

The officer testified that his department’s Computer Aided Dispatch (CAD) 

confirmed that there was an active warrant for Appellant’s arrest (Court Reporter’s 

Record v.2 pp.32-33), but later testified that there was in fact no such confirmation, 

or any indication of a warrant in the CAD report (Reporter’s Record v.2 pp. 50 and

62).

James Hyatt, an Austin Police Department officer who investigated the 

robbery, testified that the witnesses saw the robber “get into a black Jeep Liberty 

and leave the scene.” (Reporter’s Record v.2 p. 13). The arresting officer testified 

that, based on the CAD report, “All’s we got was a black male in a black SUV.” 

(Reporter’s Record v.2 p. 18). He testified that this was later updated to a black Ford 

Explorer (Reporter’s Record v.2 pp.44 and 53). Nonetheless, he testified that he was 

looking for a black Suburban (Reporter’s Record v.2.p.20). He found Appellant in a 

Ford Explorer (Reporter’s Record v.2 p.57).

Officer Flanery testified that, when he first observed Appellant with a hand 

rolled cigarette in his hand, he couldn’t determine if it was marijuana or tobacco 
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(Reporter’s Record v.2 pp.28 and 61-61). He also testified that he detected a 

“moderate whiff” of marijuana.” (Reporter’s Record v.2 pp.28-29). Officer 

Flanery’s statement that “from [his] training and experience [he] know[s] how 

[marijuana] looks and smells” (reporter’s Record v.2 p. 28) was not supported by 

any evidence, provided through Officer Flanery or any other witness.

The arresting officer’s testimony was contradictory about what he was told 

and what he observed regarding Appellant and Appellant’s vehicle. It was 

contradictory about whom he talked to and when. His testimony about why he 

arrested Appellant was shown to be incorrect and insufficient to provide probable 

cause for Appellant’s arrest.

The United States Supreme Court has consistently held “that evidence seized 

during an unlawful search could not constitute proof against the victim of the 

search”. Wong Sun v. United States, 371 U.S. 471,484 (1963), citing Weeks v. 

United States, 232 U.S. 383 (1914). “The essence of a provision forbidding the 

acquisition of evidence in a certain way is that not merely evidence so acquired 

shall not be used before the Court but that it shall not be used at all.” Silverthorne 

Lumber Co. v. United States, 251 U.S. 385,392 (1920).
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“An officer has probable cause when he has knowledge of facts that 

would lead a reasonable person to believe that the suspect has committed a 

crime or will soon do so.” State v. Story, Tex. Crim. App. NO. PD-0590-13, at 

8 (Tex.Crim.App. October 15, 2014), citing Neal v. State, 256 S.W.3d 264, 280 

(Tex. Crim. App. 2008). In this case, the arresting officer lacked credibility 

and his knowledge of Appellant’s possession of marijuana was 

unsupported by any evidence that he possessed the knowledge or skills to 

make such a determination. . Further, his knowledge of any outstanding 

warrant(s) for Appellant’s arrest was, by his own testimony, incorrect.

PRAYER FOR RELIEF

WHEREFORE, Appellant prays this Court grant the request, and reverse the

trial court’s denial of Appellant’s Motion to Suppress Evidence, reverse the 

judgment and sentence of the trial court, and remand the case to the trial court for a 

new trial. Appellant further requests any and all such other relief to which he may be 

entitled.
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Respectfully submitted,

John S. Butler

ATTORNEY FOR APPELLANT

 700 Lavaca Street, Suite 1400

 Austin, Texas 78701

Telephone (512) 472-3887

Facsimile (512) 233-1787

 STATE BAR #03526150
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CERTIFICATE OF COMPLIANCE

 As Attorney of Record for Appellant, I do hereby certify that this document 

contains 1,641 words, as determined by Microsoft Word 2010, the computer 

program used to prepare the document.

Date: January 15, 2015

JOHN S. BUTLER

Attorney for Appellant

CERTIFICATE OF SERVICE

 As Attorney of Record for Appellant, I do hereby certify that a true and correct 

copy of this Appellant’s Brief was this date provided to the District Attorney of 

Travis County, Texas, via U.S. Mail to the following address:

Rosemary Lehmberg

Travis County District Attorney

Appellate Section

PO Box 1748

Austin, Texas 78767

Date: January 15, 2015

JOHN S. BUTLER

Attorney for Appellant