IN THE

COURT OF CRIMINAL APPEALS

DEZMONE PINKSTON, § 

APPELLANT § 

 § 

V. § NO. PD-0444-15

 § 

THE STATE OF TEXAS, § 

APPELLEE § 

STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION 

OF THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS 

DISTRICT OF TEXAS IN CAUSE NUMBER 02-14-00041-CR, REVERSING THE 

JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1329761D IN 

CRIMINAL DISTRICT COURT NO. THREE OF TARRANT COUNTY, TEXAS; 

THE HONORABLE ROBB CATALANO, PRESIDING.

STATE’S PETITION FOR REVIEW

 SHAREN WILSON

 Criminal District Attorney

 Tarrant County, Texas

DEBRA WINDSOR, Assistant

Criminal District Attorney,

 Chief, Post-Conviction

 JAMES GIBSON, Assistant

Criminal District Attorney

 State Bar No. 00787533

 Tim Curry Criminal Justice Center

401 W. Belknap

 Fort Worth, Texas 76196-0201

(817) 884-1687

 FAX (817) 884-1672

CCAAppellateAlerts@TarrantCounty.com

PD-0444-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 5/26/2015 10:06:06 AM

Accepted 5/26/2015 11:04:53 AM

ABEL ACOSTA

CLERK
IDENTITY OF THE PARTIES AND COUNSEL

The trial judge was Hon. Robb Catalano, presiding judge of Criminal District 

Court No. Three of Tarrant County, Texas.

The State of Texas, represented by Sharen Wilson, Tarrant County Criminal 

District Attorney, is a party to this litigation. At trial, the State was represented by

James Luster, (former) Assistant Criminal District Attorney. On appeal, the State is 

represented by James Gibson, Assistant Criminal District Attorney, and Debra 

Windsor, Assistant Criminal District Attorney. The address of these attorneys is 

Office of the Criminal District Attorney of Tarrant County, 401 W. Belknap, Fort 

Worth, Texas 76196-0201. 

Appellant, Defendant below, is Dezmone Pinkston. Appellant was represented at 

trial and on appeal by Hon. Maggie McBride, 2000 Carson St., Fort Worth, Texas 

76117. 

i
TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL ...................................................i

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................1

PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION...................2

QUESTIONS FOR REVIEW....................................................................................2

STATEMENT OF FACTS ........................................................................................3

DISCUSSION ............................................................................................................5

CONCLUSION........................................................................................................14

PRAYER..................................................................................................................14

CERTIFICATE OF COMPLIANCE.......................................................................15

CERTIFICATE OF SERVICE ................................................................................15

COURT OF APPEALS’ OPINION.........................................................APPENDIX

ii
TABLE OF AUTHORITIES

Page(s)

Cases

Crain v. State,

315 S.W.3d 43 (Tex. Crim. App. 2010) .........................................................8, 11

Derichsweiler v. State,

348 S.W.3d 906 (Tex. Crim. App. 2011) .............................................5, 6, 10, 11

Gurrola v. State,

877 S.W.2d 300 (Tex. Crim. App. 1994) ....................................................passim

Pinkston v. State,

No. 02-14-00041-CR, 2015 WL 1262919 

 (Tex. App.—Fort Worth March 19, 2015, pet. filed) 

 (mem. op., not for publication)(attached as appendix)................................passim

Schwartz v. State,

635 S.W.2d 545 (Tex. Crim. App. [Panel Op.] 1982)......................................7, 8

State v. Madrigal,

827 P.2d 1105 (Wash. Ct. App. 1992)..............................................................13n

State v. Olson,

729 N.W.2d 132 (N.D. 2007) ...........................................................................13n

Tanner v. State,

228 S.W.3d 852 (Tex. App.—Austin 2007, no pet.)..........................................11

Terry v. Ohio,

392 U.S. 1 (1968)..............................................................................................5, 8

Torres v. State,

No. 05-98-00615-CR, 1999 WL 415380 

 (Tex. App.—Dallas June 23, 1999, no pet.) (unpublished)..................................9

United States v. Arvizu,

534 U.S. 266 (2002)..............................................................................................6

iii
United States v. Brignoni-Ponce,

422 U.S. 873 (1975)..............................................................................................5

United States v. Cortez,

449 U.S. 411 (1981)..............................................................................................5

United States v. McHugh,

639 F.3d 1250 (10th Cir. 2011) ..........................................................................12

United States v. Sokolow,

490 U.S. 1 (1989)..............................................................................................5, 8

Woods v. State,

956 S.W.2d 33 (Tex. Crim. App. 1997) .........................................................8, 8n

iv
IN THE

COURT OF CRIMINAL APPEALS

DEZMONE PINKSTON, §

APPELLANT §

§

V. § NO. PD-0444-15

§

THE STATE OF TEXAS, §

APPELLEE §

STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION 

OF THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS 

DISTRICT OF TEXAS IN CAUSE NUMBER 02-14-00041-CR, REVERSING THE 

JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1329761D IN 

CRIMINAL DISTRICT COURT NO. THREE OF TARRANT COUNTY, TEXAS; 

THE HONORABLE ROBB CATALANO, PRESIDING.

STATEMENT REGARDING ORAL ARGUMENT

Because the bulk of this petition questions the continued viability of an 

earlier opinion from this Court, oral argument would be helpful in presenting the 

State’s views and answering the Court’s concerns about whether that opinion has 

been definitively overruled.

STATEMENT OF THE CASE

Appellant was indicted for possession of less than a gram of cocaine. CR 5. 

He pled guilty to the offense, reserving for appeal the issue of whether the officer 

who detained him had adequate reasonable suspicion to do so. CR 25, 29. He was 

sentenced to sixty days in jail.

1
PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION

Appellant complained on appeal that the officer who detained him and found 

cocaine did so without sufficient reasonable suspicion. App. brief at 8-9.

A panel of the Fort Worth Court of Appeals agreed with Appellant. Pinkston 

v. State, No. 02-14-00041-CR, 2015 WL 1262919 (Tex. App.—Fort Worth March 

19, 2015, pet. filed) (mem. op., not for publication) (attached as appendix). The 

panel held that, essentially, the facts of Appellant’s case were indistinguishable 

from an earlier case from this Court which found no reasonable suspicion to detain 

that defendant. Id. at *3.

QUESTION FOR REVIEW

Did the court of appeals rely on overruled and outdated caselaw when it found that 

the police officer in Appellant’s case detained him without adequate reasonable 

suspicion? RR 9-12.

2
STATEMENT OF FACTS

Police attempted to detain Appellant, who did not cooperate. He was 

arrested for evading that detention. RR 11. As a result of a search incident to arrest, 

police found cocaine on him. RR 12. Appellant pled guilty to the charge of 

possessing a controlled substance, reserving for appeal the trial court’s decision 

that Appellant’s initial detention was legal. CR 25, 29.

Officer Barrett Galbraith was working the midnight shift on the east side of 

Fort Worth on January 7, 2013. RR 5-6. Specifically, he and a couple of other 

officers did a foot patrol at the Regency Oaks apartment complex. RR 6. 

According to Officer Galbraith, those apartments have a high level of violent and 

narcotic crimes. Id. In his experience, Officer Galbraith has worked shootings and 

instances of family violence, including at those apartments. RR 7.

On that night, as the officers walked around the apartment complex, many 

residents who were standing outside went into their homes when they saw the 

policemen. RR 8. As he was preparing to leave and answer other calls, Officer 

Galbraith heard an argument in another courtyard, on the other side of a building. 

RR 9. He described it in his report as “yelling and screaming.” Id. The voices were 

obviously that of a male and female. Id. Officer Galbraith decided to investigate. 

3
Id. He thought that the sounds he heard were consistent with what could have been 

a domestic assault. RR 10.

As Officer Galbraith rounded the corner, he saw the couple arguing. Id. As 

soon as they saw him, they stopped arguing and began to walk away from him. Id. 

From Officer Galbraith’s point of view, it seemed that something had happened 

and they were trying to get away so they would not have to talk with him. Id. The 

officer walked after them and told them to come back and talk to him. RR 11. The 

woman stopped, but the man did not. Id. Officer Galbraith and the other officers 

chased after the man and caught him. Id. They arrested him for evading detention. 

Id. In a search incident to arrest, the officers discovered what appeared to be 

cocaine. RR 12. The arrested man was Appellant. Id.

4
DISCUSSION

The Fort Worth Court’s reliance on Gurrola v. State was a mistake –

Gurrola is no longer good law.

Appellant claimed that Officer Galbraith did not have sufficient reasonable 

suspicion to detain him. App. brief at 8-9. The Fort Worth Court agreed and 

reversed the trial court’s judgment. Pinkston, 2015 WL 1262919 at *4.

When a law enforcement officer has reasonable suspicion to believe that a 

person is engaged in criminal activity, he may temporarily detain that person to 

investigate the possible criminal activity. United States v. Brignoni-Ponce, 422 

U.S. 873, 881-82 (1975). Suspicion to detain is reasonable where the officer 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. United States v. Sokolow, 490 U.S. 1, 7 

(1989); Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This 

standard is an objective one – it disregards the officer’s subjective intentions and 

looks to whether there was an objectively justifiable basis for the detention. Terry 

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

The standard articulated above looks to the totality of the circumstances. 

United States v. Cortez, 449 U.S. 411, 417-18 (1981). Individual circumstances 

may indeed seem innocent in isolation; however the combination of those 

5
circumstances may amount to such a suggestion of criminal conduct that a 

temporary detention and investigation is justified. Derichsweiler, 348 S.W.3d at 

914. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (“The court’s 

evaluation and rejection of seven of the listed factors in isolation from each other 

does not take into account the ‘totality of the circumstances,’ as our cases have 

understood that phrase.”).

The Fort Worth Court mainly relied on this Court’s opinion in Gurrola v. 

State, 877 S.W.2d 300 (Tex. Crim. App. 1994). Pinkston, 2015 WL 1262919 at *3.

In Gurrola, an unknown man reported to a sheriff’s deputy that some type of 

disturbance was occurring at an apartment complex. Gurrola, 877 S.W.2d at 301. 

It was late afternoon. Id. The officer described the apartment complex as an 

“unsafe” location. Id. Upon arriving, the officer saw three men and a woman 

arguing. Id. He approached to find out what was going on, but on seeing him they 

all began to leave. Id. He ordered them to come back. Id. A pat-down search 

revealed a handgun and drugs on Gurrola. Id.

This Court held that Gurrola’s detention was without adequate reasonable 

suspicion. First, the opinion downplayed the seriousness of the argument which led 

to the investigation. It was “no more than a heated discussion,” characterized by 

the deputy in his report as a “disturbance.” Gurrola, 877 S.W.2d at 302. It certainly 

6
was not an “altercation.” Id. This Court also placed importance on the fact that four 

people arguing in a parking lot in the late afternoon was not out of the ordinary. Id. 

In fact, according to this Court, “a residential parking lot in the late afternoon does 

not give rise to the same suspicions as does an empty department store parking lot 

at 1:30 a.m.” Id. at 303. Second, this Court emphasized that mere flight from a law 

enforcement officer is insufficient to justify an investigative detention – an 

individual has a right to refuse questions by officers who have no reasonable 

suspicion. Id.

Most important, however, is a consistent thread running through the opinion: 

that Gurrola was not suspected of having committed any particular crime and that 

what he was doing was consistent with “entirely innocent activity.” Id. at 304, 305.

Certainly, the opinion took pains to label Gurrola’s argument with his companions

as merely innocent. See id. at 304 (“Standing in a residential parking lot in the late 

afternoon having an aggressive conversation is an entirely innocent activity.”). In 

addition, this Court relied on its opinion in Schwartz v. State, 635 S.W.2d 545 

(Tex. Crim. App. [Panel Op.] 1982). In that case, a policeman detained juveniles 

in a truck by a gas station after closing, thinking they might have alcoholic 

beverages. Id. at 546. As the officer admitted that it would not be “unusual” for 

someone at that time of night to be using the car washing stalls, the Court held that 

7
the actions of the truck’s driver was “as consistent with innocent activity as with 

criminal activity,” and the seized contraband would have to be suppressed. Id. at 

646, 647.

This “as consistent with innocent activity as with criminal activity” test was 

formally repudiated by this Court in Woods v. State, 956 S.W.2d 33, 38 (Tex. 

Crim. App. 1997). That opinion emphasized the development in the rules regarding 

temporary detentions since Terry, supra, and that the Supreme Court had 

recognized that a detention need not be based on a suspect’s unlawful conduct, or 

conduct that was inconsistent with innocence. Id. (citing United States v. Sokolow, 

490 U.S. 1, 10 (1989)).1

The State pointed out to the Fort Worth Court that relying on Gurrola would 

necessitate relying on the repudiated construct that formed at least part of the basis 

of that opinion. State’s brief at 10. The Fort Worth Court would have none of that: 

“[I]t is not this court’s prerogative to refuse to follow the court of criminal 

appeals’s decisions.” Pinkston, 2015 WL 1262919 at *3. In addition, the Fort 

Worth Court based its conception of the continued viability of Gurrola on the fact 

that it had been “recently cited” by this Court. Id. (citing Crain v. State, 315 

S.W.3d 43, 49 n.16 (Tex. Crim. App. 2010)).

1 It should be pointed out that this Court in Woods specifically overruled Schwartz as to the “as 

consistent with innocent activity as with criminal activity” language that was relied on in 

Gurrola. Woods, 956 S.W.2d at 36 n.3.

8

 
Of course, the State did not ask the Fort Worth Court to overrule this Court. 

It merely pointed out to the panel a basic fact: that the foundation of Gurrola was 

the “as consistent with” construct, and that this construct had been subsequently 

overruled. Another court of appeals came to that same conclusion about Gurrola –

and didn’t seem to think it was “overruling” this Court. In Torres v. State, No. 05-

98-00615-CR, 1999 WL 415380 (Tex. App.—Dallas June 23, 1999, no pet.) 

(unpublished), a police officer was contacted by an employee of a business who 

reported an instance of domestic violence. Id. at *2. The officer found the two 

people involved, searched the defendant, and found a weapon. Id. The Dallas Court 

of Appeals held that the search of the defendant was justified on the basis of 

reasonable suspicion that the defendant had or was about to commit a crime. Id. 

The court distinguished Gurrola on its facts, noting that someone had reported 

what was an actual possible crime (as opposed to the officer witnessing a mere 

argument). Id. at 3. However, the Dallas court also noted that Gurrola employed 

the outdated “as consistent with innocent activity as with criminal activity” 

construct that this Court had rejected. Id.

The Dallas court understood something that the Fort Worth court refused to 

consider – the law sometimes changes and the holdings from older cases (even 

ones from this Court) must be considered with these changes in mind. 

9
Derichsweiler, supra, is a good example of that. It is hard to imagine that Gurrola

(or, for that matter, the opinion in Appellant’s case) could have survived an 

analysis tied to this Court’s opinion in Derichsweiler. Specifically, in that case, this 

Court held that it is not necessary that a temporary detention be based on a 

“particular and distinctively identifiable penal offense.” Derichsweiler, 348 

S.W.3d at 916. Further:

Particularly with respect to information suggesting that a crime is 

about to occur, the requirement that there be “some indication that the 

unusual activity is related to crime” does not necessarily mean that the 

information must lead inexorably to the conclusion that a particular 

and identifiable penal code offense is imminent. It is enough to satisfy 

the lesser standard of reasonable suspicion that the information is 

sufficiently detailed and reliable—i.e., it supports more than an 

inarticulate hunch or intuition—to suggest that something of an 

apparently criminal nature is brewing.

Id. at 917 (citations omitted, italics in original). Gurrola, on the other hand, 

explicitly underlines the importance of the lack of a particular penal offense. See 

Gurrola, 877 S.W.2d at 305 (“Appellant was not suspected of any particular 

crime.”). Although the Fort Worth Court does not come right out and say it, one 

gets the feeling that the panel would have been more receptive to a report of an 

actual crime taking place. See Pinkston, 2015 WL 1262919 at *3 (“But unlike in 

Gurrola, the officers in this case had not received an uncorroborated complaint of 

a disturbance.”). But Derichsweiler confirmed that such a view is not required: the 

10
requirement that unusual activity be related to crime does not necessarily mean that 

the information point to a definite offense. Derichsweiler, 348 S.W.3d at 917.2

As an aside, the State finds fault with the Fort Worth Court’s assumption 

that Gurrola must be good law because this Court cited it in 2010. See Pinkston, 

2015 WL 1262919 at *3 (“Moreover, the court of criminal appeals has recently 

cited Gurrola in its analysis of what constitutes reasonable suspicion to detain an 

individual.”). The opinion in Crain certainly cites Gurrola. But Crain’s reliance on 

Gurrola was limited to the fact that a reviewing court should employ a “totality of 

the circumstances” analysis when trying to decide which category of police-citizen 

interaction a given situation falls in. Crain, 315 S.W.3d at 49. That’s it. The Fort 

Worth Court was wrong to read into this citation an intent on the part of this Court 

to resurrect the “as consistent with innocent activity as with criminal activity” 

construct.

Finally, it bears mention that the State should have prevailed in this case, 

even under the straitjacketed and outdated analysis in Gurrola that was followed 

by the Fort Worth Court. In the first place, Appellant’s detention took place at 

night, not in the afternoon sun. See Tanner v. State, 228 S.W.3d 852, 858 (Tex. 

App.—Austin 2007, no pet.) (fact that detention was middle of the night and in 

suspicious place are factors to be considered together in reasonable suspicion 

2 The Fort Worth Court did not mention Derichsweiler. 11

 
analysis); see also United States v. McHugh, 639 F.3d 1250, 1257 (10th Cir. 2011) 

(lateness of hour, though not dispositive by itself, is factor to be used in assessing 

reasonableness of detention). The fact that, in Appellant’s case, the officers heard 

what appeared to be yelling and screaming late at night, in an area known for drug 

use and domestic violence, should likewise be a factor in a reasonable suspicion 

analysis.

Second, what Officer Galbraith heard far outshone what this Court was 

faced with in Gurrola. In Gurolla, the detained persons were, according to this 

Court, “engaged in no more than a heated discussion.” Gurolla, 877 S.W.2d at 302. 

The officer described it as a “disturbance,” and the Court disagreed with the court 

of appeals’ conclusion that it was an “altercation.” Id. This Court, in fact, made 

clear that what the officer in Gurolla saw was “an entirely innocent activity,” and 

that the defendant could not have been suspected of any crime. Id. at 304, 305. In 

any event, three men and a woman having a “heated discussion” is much different 

from what Appellant was doing. Officer Galbraith was aware that the Regency 

Oaks apartment had a reputation for hosting domestic violence situations. RR 7. 

And what he heard was not a mere disturbance – despite the presence of a building 

between himself and the fighting couple, he could clearly hear a man and woman 

“yelling and screaming.” RR 9. Officer Galbraith believed that it was possible an 

12
assault was taking place. Id. Thus, unlike the situation in Gurolla, Officer 

Galbraith reasonably suspected that an actual crime was happening and he was 

justified in investigating.3

But these distinctions merely highlight the bigger problem: that under an “as 

consistent with innocent activity as with criminal activity” construct, a police 

officer is not allowed to investigate what he believes is a possible domestic 

violence situation, a situation based on perceived facts (screaming, etc.) which he 

can articulate, in an apartment complex that the officer knows from past experience 

has been the scene of domestic violence. Fortunately, that test is no longer the law, 

and the Fort Worth Court was wrong to rely on a superficially similar case that 

employed that construct.

3 See also State v. Olson, 729 N.W.2d 132, 135-36 (N.D. 2007) (officer reasonably detained 

defendant, who was running behind screaming woman; he could reasonably suspect a domestic 

assault situation); State v. Madrigal, 827 P.2d 1105, 1106-07 (Wash. Ct. App. 1992) (officer’s 

detention of defendant was justified by the “loud altercation” he heard between defendant and his 

wife).

13

 
CONCLUSION

The Fort Worth Court erroneously relied on implicitly overruled caselaw

from this Court in finding that there was inadequate reasonable suspicion to detain 

Appellant. Under current law, Officer Galbraith was justified in detaining 

Appellant to investigate what reasonably sounded like a near-violent domestic 

dispute.

PRAYER

The State prays that its petition be granted and that the Court of Appeals’ 

judgment reversing the judgment of the trial court be reversed.

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR, Assistant

Criminal District Attorney,

Chief, Post-Conviction

/s/ James Gibson_____________

JAMES GIBSON, Assistant 

Criminal District Attorney

State Bar No. 00787533

Tim Curry Criminal Justice Center

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687

FAX (817) 884-1672

CCAappellatealterts@tarrantcounty.com

14
CERTIFICATE OF COMPLIANCE

The word count for the portions of the document covered by TEX. R. APP. P.

9.4(i)(1) is 2,589.

/s/ James Gibson_____________

JAMES GIBSON 

CERTIFICATE OF SERVICE

Copies of the State’s petition have been e-served to opposing counsel, the 

Hon. Maggie McBride, maggiemcbride@charter.net, 2000 Carson St., Fort Worth, 

Texas 76117, and to Hon. Lisa McMinn, State's Attorney, 

information@spa.texas.gov, P.O. Box 13046, Capitol Station, Austin, Texas 78711 

on May 26, 2015.

/s/ James Gibson_____________

JAMES GIBSON 

H:\GIBSON.G17\BRIEFS\Pinkston St Pdr (revised after efile return).docx

15
Pinkston v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 1262919

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

DO NOT PUBLISH TEX.R.APP. P. 47.2(B)

Court of Appeals of Texas,

Fort Worth.

Dezmone Pinkston, Appellant

v.

The State of Texas, State

NO. 02–14–00041–CR |

DELIVERED: March 19, 2015

FROM CRIMINAL DISTRICT COURT NO. 3 OF

TARRANT COUNTY, TRIAL COURT NO. 1329761D.

JERRY W. WOODCOCH, JUDGE

Attorneys and Law Firms

Maggie McBride Fort Worth, Texas, Attorney for Appellant

Sharen Wilson, Criminal District Attorney; Debra Windsor,

Chief of Post–Conviction; James Gibson, James Luster,

Assistant Criminal District Attorneys; Tarrant County

Criminal District Attorney's Office Fort Worth, Texas,

Attorney for State

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

MEMORANDUM OPINION 1

1

See Tex.R.App. P. 47.4.

BILL MEIER, JUSTICE

I. INTRODUCTION

*1 In two issues, appellant Dezmone Pinkston appeals his

conviction for possession of cocaine in an amount of less

than one gram. See Tex. Health & Safety Code Ann. §

481.115(b) (West 2010). Because we hold that the trial court

erred by denying Pinkston's motion to suppress, we reverse

the trial court's judgment and remand the cause for further

proceedings consistent with this opinion.

II. BACKGROUND

After the State charged Pinkston with possession of cocaine,

he filed a motion to suppress. At the suppression hearing,

the State stipulated that the officers in this case did not have

a warrant to arrest or detain Pinkston prior to searching his

person and discovering cocaine.

Fort Worth Police Officer Barrett Galbraith testified that on

June 7, 2013, he and fellow officers conducted a walk-through

of the Regency Oaks Apartments, an area that, according

to Galbraith, is “very problematic” and known as an area

where “violent crimes [and] narcotics crimes” occur with

frequency. Galbraith also said that the area is known as a place

where domestic and violent family crimes occur. Galbraith

did not state at what time he and fellow officers conducted

their walk-through, but he did testify that his shift that night

was from 8:00 p.m. until 6:00 a.m. and that his encounter

with Pinkston occurred while it was “dark”; and the parties'

agreed-to proposed findings of fact and conclusions of law

reflect that Galbraith's encounter with Pinkston occurred “at

approximately midnight.” There is, however, no evidence

that the trial court adopted these proposed findings and

conclusions.

By Galbraith's account, he and fellow officers had been at the

apartment complex for more than twenty minutes and most of

the people around had begun to “go inside because they saw

[the police] walking around” when he heard “arguing ... to

the north” of his location. Galbraith testified that although he

could not see who was arguing, the arguing was loud enough

that he could hear it despite the location of the argument

occurring a building over from where he was. Galbraith said

that in his report from that night he described the argument as

“yelling and screaming.” According to Galbraith, the tenor of

the argument led him to believe that he needed to investigate

“an assault [or] something of that nature.” He also described

the argument as being consistent with “a domestic assault.”

Galbraith averred that as he approached the area where the

argument was occurring, he witnessed Pinkston and a female

arguing but that once the couple saw him, “they stopped

arguing and began to walk away.”

Galbraith said that the couple's conduct of ceasing their

argument and walking away led him to believe that “they
Pinkston v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

were trying to get away from [him] so that they didn't

have to talk to [him].” Galbraith stated to the couple that

they should come back and talk to him, but as the couple

continued their retreat, Galbraith declared, “Stop, police.”

At that moment, the female stopped, but Pinkston continued

walking away. From there, Galbraith and his fellow officers

chased down Pinkston and arrested him for “[e]vading arrest

or detention.” After patting down Pinkston, Galbraith found

“an off white rock-like substance” on Pinkston's person that

Galbraith believed to be crack cocaine.

*2 The trial court denied Pinkston's suppression motion, and

he later entered into a plea bargain with the State whereby he

pleaded guilty to possession of less than one gram of cocaine.

The State recommended sixty days' jail time. The trial court

entered judgment accordingly, and this appeal followed.

III. DISCUSSION

In two issues, citing both state and federal principles of

search and seizure, Pinkston argues that the trial court

abused its discretion by denying his motion to suppress

because Galbraith lacked reasonable suspicion to detain

him at the moment Galbraith announced, “Stop, police.”

In support of his position, Pinkston cites the court of

criminal appeals's decision in Gurrola v. State 877 S.W.2d

300, 303 (Tex.Crim.App.1994). The State argues that this

case is distinguishable from Gurrola. Furthermore, the State

argues that Gurrola “seems to be simply outdated” as a

touchstone for determining reasonable suspicion. We agree

with Pinkston.

A. Standard of Review

We review a trial court's ruling on a motion to suppress

evidence under a bifurcated standard of review. Amador v.

State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v.

State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing

the trial court's decision, we do not engage in our own

factual review. Romero v. State, 800 S.W.2d 539, 543

(Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861

(Tex.App.—Fort Worth 2003, no pet.). The trial judge

is the sole trier of fact and judge of the credibility of

the witnesses and the weight to be given their testimony.

Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007);

State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000),

modified on other grounds by State v. Cullen, 195 S.W.3d

696 (Tex.Crim.App.2006). Therefore, we give almost total

deference to the trial court's rulings on (1) questions of

historical fact, even if the trial court's determination of those

facts was not based on an evaluation of credibility and

demeanor, and (2) application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor. Amador,

221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–

09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d 644,

652–53 (Tex.Crim.App.2002). But when application-of-lawto-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court's rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v.

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

68 S.W.3d at 652–53.

Stated another way, when reviewing the trial court's ruling

on a motion to suppress, we must view the evidence in

the light most favorable to the trial court's ruling. Wiede,

214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex.Crim.App.2006).

B. No Reasonable Suspicion to Detain Pinkston

The Fourth Amendment, and its corresponding state

principles codified in the Texas Code of Criminal Procedure,

protects against evidence being used at trial when it was

obtained through unreasonable searches and seizures by

government officials. U.S. Const. amend. IV; Tex.Code

Crim. Proc. Ann. art. 38.23 (West 2005); Wiede, 214 S.W.3d

at 24. To suppress evidence because of an alleged Fourth

Amendment violation, the defendant bears the initial burden

of producing evidence that rebuts the presumption of proper

police conduct. Amador, 221 S.W.3d at 672; see Young v.

State, 283 S.W.3d 854, 872 (Tex.Crim.App.), cert. denied,

558 U.S. 1093 (2009). A defendant satisfies this burden

by establishing that a search or seizure occurred without a

warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the

State, which is then required to establish that the search

or seizure was conducted pursuant to a warrant or was

reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899,

902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488,

492 (Tex.Crim.App.2005).

*3 A detention, as opposed to an arrest, may be justified on

less than probable cause if a person is reasonably suspected of

criminal activity based on specific, articulable facts. Terry v.

Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968); Carmouche

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

officer conducts a lawful temporary detention when he

has reasonable suspicion to believe that an individual is
Pinkston v. State, Not Reported in S.W.3d (2015)

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violating the law. Crain v. State, 315 S.W.3d 43, 52

(Tex.Crim.App.2010); Ford, 158 S.W.3d at 492. Reasonable

suspicion exists when, based on the totality of the

circumstances, the officer has specific, articulable facts that

when combined with rational inferences from those facts,

would lead him to reasonably conclude that a particular

person is, has been, or soon will be engaged in criminal

activity. Ford, 158 S.W.3d at 492. This is an objective

standard that disregards any subjective intent of the detaining

officer and looks solely to whether an objective basis for the

detention exists. Id.

Here, the circumstances that Galbraith testified about that

gave him reasonable suspicion to detain Pinkston were that

Pinkston's argument with his female companion was of such

volume and nature that he believed that “a possible offense”

in the nature of an “assault” was transpiring. Galbraith also

testified that this argument occurred in an area known for

domestic violence and that this all transpired while it was

“dark” outside. And, according to Galbraith's testimony,

because Pinkston and the female stopped arguing and began

to walk away upon seeing the police, the totality of this

conduct provided him with reasonable suspicion that a crime

had been committed.

We agree with Pinkston that the Court's decision in Gurrola

is instructive in this case. 877 S.W.2d at 304. In Gurrola,

during the afternoon, an unknown man reported to a patrol

officer that there was a disturbance at a nearby apartment

complex. Id. at 301. The officer knew the apartment complex

to be “an unsafe location that had incurred several complaints

of disturbances from area residents.” Id. The officer drove

over to the parking lot of the complex and saw three men

and a woman engaged in what appeared to be an argument.

Id. The officer approached the individuals to find out “what

was going on,” but as he did so, they all began to leave. Id.

After the individuals began to disperse, the officer ordered

them to stop and the officer then conducted a pat-down

search and discovered cocaine on Gurrola's person. Id. The

Court held that the officer lacked reasonable suspicion to

detain Gurrola even though the officer had received an

uncorroborated complaint of a disturbance; the argument the

officer witnessed occurred in a “high-crime” area; and the

individuals involved in the argument dispersed upon seeing

the officer. Id. at 303, 305.

Here, Galbraith lacked even more articulable facts than the

officer in Gurrola. In this case, like in Gurrola, the argument

Galbraith witnessed occurred in a high-crime area and the

participants of the argument dispersed upon seeing the police.

But unlike in Gurrola, the officers in this case had not

received an uncorroborated complaint of a disturbance. The

only distinction that this court can detect that differs in this

case from Gurrola is that in Gurrola the argument occurred

during the day, and in this case, the argument occurred while

it was “dark.” But time of night alone is not sufficient to rise

to the level of reasonable suspicion. See Crain, 315 S.W.3d

at 53 (“Neither time of day nor level of criminal activity in an

area are suspicious in and of themselves.”).

Furthermore, we are unpersuaded by the State's argument

that Gurrola is no longer good law. First, it is not this

court's prerogative to refuse to follow the court of criminal

appeals's decisions. See Wiley v. State, 112 S.W.3d 173, 175

(Tex.App.—Fort Worth 2003, pet. ref'd) (“It is axiomatic that

a Court of Appeals has no power to ‘overrule or circumvent

[the] decisions, or disobey [the] mandates,’ of the Court of

Criminal Appeals.”). Moreover, the court of criminal appeals

has recently cited Gurrola in its analysis of what constitutes

reasonable suspicion to detain an individual. Crain, 315

S.W.3d at 49, n.16. Cram is also instructive to this case.

In Crain, the Court held that an officer lacked reasonable

suspicion to detain Crain even though Crain was walking at

night in a residential area known for night-time burglaries and

Crain had exhibited the “suspicious” conduct of “grabb[ing]

at his waist” upon seeing a police officer. Id. at 53. Like

in Crain, in this case, the circumstances of an argument at

night in an area known for crime coupled with Pinkston's

constitutional right to walk away from police also do not

rise to the level of reasonable suspicion. See Zone v. State,

84 S.W.3d 733, 738–39 (Tex.App.—Houston [1st Dist.]

2002), aff'd, 118 S.W.3d 776 (Tex.Crim.App.2003) (“An

individual has the right to refuse to answer a police officer's

questions and walk away unless the officer has reasonable

suspicion to detain that person.”). We hold that Galbraith

lacked reasonable suspicion to detain Pinkston. Thus, we hold

that the trial court erred by denying Pinkston's motion to

suppress the evidence found on his person after Galbraith

detained him, and we sustain both of Pinkston's issues on

appeal.

C. Was the Denial of Pinkston's Motion to Suppress

Harmful?

*4 Galbraith's unlawful stop of Pinkston violated his

Fourth Amendment rights, and thus the cocaine discovered

from that detention should have been suppressed. Because

the trial court committed constitutional error by denying

Pinkston's motion to suppress, we must reverse his conviction
Pinkston v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

unless we determine beyond a reasonable doubt that the

error did not contribute to his conviction. See Tex.R.App.

P. 44.2(a). We hold that the trial court's denial of

Pinkston's motion to suppress was harmful error because

it “undoubtedly contributed in some measure to the State's

leverage in the plea bargaining process and may well

have contributed to [Pinkston's] decision to relinquish [his]

constitutional rights of trial and confrontation in exchange for

a favorable punishment recommendation.” See Castleberry

v. State, 100 S.W.3d 400, 404 (Tex.App.—San Antonio

2002, no pet.) (citing McKenna v. State, 780 S.W.2d 797,

799 (Tex.Crim.App.1989)). Indeed, the cocaine found on

Pinkston during Galbraith's illegal detention is the only

evidence that Pinkston possessed cocaine.

IV. CONCLUSION

Having sustained both of Pinkston's issues on appeal, we

reverse the trial court's judgment and remand this cause for

further proceedings consistent with this opinion.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.