O RAL A RGUMENT R EQUESTED ONLY I F R EQUESTED BY A PPELLANT

No. 06-14-00186-CR through 06 -14-00189-CR
IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS

________________ 

## D ARRIAN 

## D E 

## ’A NTHONY 

## D AVIS 

## -S ANDERS , Appellant

v. 

## T HE 

## S TATE OF 

## T EXAS , Appellee

________________ On A ppeal in Cause Nos. CR- 12 -24246 and CR-12-24273 through CR-12-24275 From the 336 TH Judicial D istrict Court of F annin County, Texas

__________________________________________________________________ 

# S TATE 

# ’ S 

# B RIEF

__________________________________________________________________ John B. Setterberg State Bar No. 24043915 Assistant Criminal District Attorney Fannin County, Texas 101 E. Sam Rayburn Dr., Ste. 301 Bonham, Texas 75418 903-583-7448 903-583-7682 (fax) ATTORNEY FOR THE STATE ACCEPTED 06-14-00186-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/1/2015 3:19:49 PM DEBBIE AUTREY

CLERKi IDENTITY OF PARTIES AND COUNSEL The State certifies that the following is a complete list of the parties, attorneys, and other persons with interest in the outcome of this case: (1) John B. Setterberg, Assistant Criminal District Attorney , Fannin County, Texas, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas 75418;
ATTORNEY FOR THE STATE OF TEXAS. (2) Micah Belden, 711 N. Travis St., Sherman, Texas 75090 ; APPELLATE
ATTORNEY FOR APPELL ANT

. (3) Donald K. Hoover , 101 East Sam Rayburn Drive, Su ite 301, Bonham, Texas
75418 , TRIAL ATTORNEY FOR APPELLANT; (4 ) Darrian De’Anthony Davis

- Sanders , TDCJ # 01957802 , Eastham Unit, 2665 Prison Road #1; Lovelady, T exas 75851 ; APPELLANT

.ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL

................................ ............................ i
TABLE OF CONTENTS

................................ ................................ .......................... ii
INDEX OF AUTHORITIES

................................ ................................ .................... iii
SUMMARY OF THE ARGUMENT

................................ ................................ ........ 4
ARGUMENT

................................ ................................ ................................ ............. 5 The trial court could have rationally denied Appellant’s motion to suppress

. .. 7

a. Officers had authority to enter the motel room to serve an arrest warrant on the resident tenant

................................ ................................ ............................. 8 b. Offic ers had authority to sweep the room for weapons, drugs, and people who might be hiding because circumstances indicated they would find those things

................................ ................................ ................................ ..... 8

c. Officers need not obtain a search warr ant in order to ensure their safety while executing an arrest warrant

................................ ................................ ........ 11 d. Appellant was not under arrest at the time of the search, and officers could not be expected to conduct a protectiv e sweep without asking limited, focused questions to locate the items they were searching for

............................ 12
CONCLUSION

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

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

................................ ................................ ....... 16
CERTIFICATE OF SERVICE

................................ ................................ ................ 16iii INDEX OF AUTHORITIES C ases Dowthitt v. State , 931 S.W.2d 244 (Tex. Crim. App. 1996)

................................ .... 12 Ex parte Ewing , 570 S.W.2d 941 (Tex. Crim. App. 1978)

................................ ....... 6 Ex parte Martinez , 330 S.W.3d 891 (Tex. Crim. App. 2011)

............................... 5, 7
Green v. State , 78 S.W.3d 604 (Tex. App.

– Fort Worth 2002)

................................ 8
Kentuc ky v. King , 131 S.Ct. 1849 (2011)

................................ ............................ 9, 11 Maryland v. Buie , 494 U.S. 325 (1990)

................................ ............................... 8, 13 Michigan v. Long , 463 U.S. 1032 (1983)

................................ ................................ .. 9 Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. App. 1991)

............................... 7
Moses v. State , 105 S.W.3d 622 (Tex. Crim. App. 2003)

................................ ......... 7
Reasor v. State , 12 S.W.3d 813 (Tex. Crim. App. 2000)

................................ .... 8, 10 Strickland v. Washington , 466 U.S. 668 (1984)

................................ ........................ 6 Terry v. Ohio , 392 U.S. 1 (1968)

................................ ................................ ......... 9, 11 Voelkel v. State , 717 S.W.2d 314 (Tex. Crim. App. 1986)

................................ ........ 9
Statutes
T EX
. C ODE C RIM
. P RO

. Art. 38.23

................................ ................................ ............ 12No. 06
- 14
- 00 1 86
- CR through 06
- 14
- 00189
- CR

IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS

________________ 

## D ARRIAN 

## D E 

## ’A NTHONY 

## D AVIS 

## - S ANDERS , Appellant

v . 

## T HE 

## S TATE OF 

## T EXAS , Appellee

________________ TO THE HONORABLE JUSTICES OF T HE SIXTH COURT OF APPEALS: COMES NOW the State of Texas, by and through her assistant criminal district attorney , and respectfully submits this brief in the above

- styled and numbered cause. This is a n appeal from four conviction s of drug

- related offenses

. (Cl. R. at 34

- 35 ). 1 Appellant plead guilty in all four cases and was placed on deferred adjudication on September 19, 2012 for a period of ten years . (Cl. R. at 34

- 35 ). The State filed a motion to adjudicate Appellant’s probation on May 29, 2014 (Cl. R. at 39). After a hearing, the trial court found both paragraphs alleged in the motion s to be true and, in cause numbers CR

- 12

- 24246, CR

- 12

- 24273 and CR

12

- 24275, sentenced Appellant to serve 10 years in the Institutional Division of the Texas Department of Criminal Justice (Cl. R. at 52

- 53). In cause number CR

- 12

-

1 For brevity, references to the clerk’s records will be to that in cause no. CR

- 12

- 24246 unless otherwise noted2 24274, t he court sentenced Appellant to serve 60 years (Cl. R. at 53

- 54). Appellant filed notice of appeal on October 17, 2014 (Cl. R. at 55).
S TATEMENT OF FACTS On April 22, 2014, Officer Gar y Vann of the Garland Police Department received numerous reports that two black males were selling methamphetamine in the parking lot of the Kingsley Inn & Suites (Ct. R. vol. 1, at 11). The Kingsley Inn & Suites was a local motel that was known for high drug and prostitution activity (Ct. R. vol. 1, at 10). Officer Vann also got word from a trusted informant that the two black males had attempted to sell him methamphetamine (Ct. R. vol. 1, at 11). The informant described the men and noted that they were each carrying a handgun (Ct. R. vol. 1, at 11). Officer Vann then went to the motel office and learned that the room described by the informant was rented and occupied by Brittany Guignard (Ct. R. vol. 1, at 11). He confirmed through his dispatch that G uignard had outstanding arrest warrants and called for assistance in serving them (Ct. R. vol. 1, at 12). Once
his back

- up arrived, Officer Vann knocked on the door of the motel room (Ct. R. vol. 1, at 12). There was no answer, but Vann could hear people t alking inside (Ct. R. vol. 1, at 12). He knocked again, and saw Appellant come to front window and peek out from behind the blinds (Ct. R. vol. 1, at 12). Appellant quickly closed the blinds and moved away from the window, and Officer Vann could hear “a bunch3 of running around, talking” (Ct. R. vol. 1, at 12). He knocked a third time; still no answer (Ct. R. vol. 1, at 12). When Officer Vann knocked a fourth time, Guignard finally opened the door to the motel room. (Ct. R. vol. 1, at 12). When the door opened, Officer Vann was immediately confronted with “a lot of smoke

– marijuana smoke” (Ct. R. vol. 1, at 12). Vann, who was a drug recognition expert, immediately recognized the odor and saw additional marijuana in plain sight on a table approximately f ive feet away (Ct. R. vol. 1, at 12). No one else was visible in the tiny one

- room area, however. The logical place for hiding was in the enclosed bathroom, which was the only other room in the apartment that was separate from the main room in which he st ood, and Officer Vann could hear “rustling around” inside (Ct. R. vol. 1, at 12). At this point, Officer Vann became concerned that whoever was hiding in
the bathroom was destroying drugs or evidence, so he made entry to secure the area (Ct. R. vol. 1, at 12

- 13). While officers searched for others, Vann made contact with the Appellant, who was just coming out of the bathroom (Ct. R. vol. 1, at 13). Officers also located two other people in the room, one of whom had been hiding under a pile of clothes in the corner (Ct. R. vol. 1, at 13). Once everyone had been located within the room, Officer Vann asked whether Guignard had any firearms (Ct. R. vol. 1, at 14). She replied that she one in her backpack and pointed it out among the several that were in th e room (Ct. R.4 vol. 1, at 14

- 15). Officer Vann recognized Appellant as matching the description of one of the two men selling methamphetamine, so he asked Appellant whether he too had a forearm (Ct. R. vol. 1, at 14

- 15). Appellant advised that he had one in his backpack and, at Officer Vann’s request, identified which bag belonged to him (Ct. R. vol. 1, at 14

- 15). Officer Vann verified with Appellant that the weapon was in the main pocket of the bag and looked inside to confirm (Ct. R. vol. 1, at 15). Wh en he did, Officer Vann saw a Smith & Wesson .40 caliber handgun, as well as the Appellant’s driver’s license and social security card (Ct. R. vol. 1, at 15). When he removed the weapon to secure it, Officer Vann also saw a large plastic baggy containing a white, crystal substance that was later confirmed to be methamphetamine (Ct. R. vol. 1, at 15, 32).

S UMMARY OF THE ARGUMENT Appellant argues that his trial counsel could have moved to suppress the evidence found in his backpack. He complains that office rs had no right to enter the room without a warrant, that they had no right to sweep the room once inside, that they had no right to question Appellant about the existence of a firearm, and that they had no right to search Appellant’s bag to recover the fi rearm. Despite Appellant’s arguments to the contrary, officers were authorized to enter to motel room in order to serve an arrest warrant on its occupant, Brittany Guignard. Additionally, officers had authority to enter and secure plainly visible5 contraba nd , and the events leading up to their entry gave officers authority to sweep the room for additional occupants who might be hiding or destroying evidence. Moreover, the reliable information received by the officers indicated that the occupants, one of wh om matched the description given by their informant, were armed with firearms, and officers therefore had a right to search for weapons as well. Finally, officers were permitted to ask narrowly focused questions of Appellant in order to ascertain (a) the p resence of a weapon, and (b) its location. In short, nothing the officers did exceeded their authority under the circumstances. Any motion to suppress would therefore not have a reasonable
basis in law or in fact, and c ounsel was under no professional o bligation to file it

. Likewise, Appellant suffered no harm from counsel’s refusal to file a motion because it is not reasonably likely that the motion would have been granted. Because Appellant does not show that the trial court’s decision to revoke proba tion, or its sentence upon revocation, would have been different had counsel filed a motion to suppress, he has not demonstrated harm and his claim should be overruled. ARGUMENT Texas courts apply the Strickland standard when considering a claim of
in eff ective assistance of counsel

. Ex parte Martinez , 330 S.W.3d 891, 900 (Tex. Crim. App. 2011) . That standard require s the applicant to show, by a6 preponderance of the evidence, that his attorney’s performance was unreasonably deficient and that he was actually prejudiced by the deficiency. Id. at 900

- 01. In assessing deficiency, the reviewing court asks whether couns el’s performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington , 466 U.S. 668, 688 (1984) . The reviewing court must be highly deferential to counsel’s performance, and must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 689. The court must look to the totality of the representation and base its decision on the facts of the particular case, with every effort being made to eliminate the distorting effects of hindsight. Strickland , 466 U.S. at 689

- 90. This is because “representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Id. at 693. Therefore, the mere fact that another attorney might have pursued a different strategy will not support a finding of ineffective assistance of

c ounsel, and the record must affirmative ly show that counsel’s action was without any plausible basis. Id. at 689; Ex parte Ewing , 570 S.W.2d 941, 945 (Tex. Crim. App. 1978)

. In addition to showing that counsel’s performance fell below an objective standard of reasonableness, a n appellant must also prove that there is a reasonable probability that but for counsel’s errors, the result of the trial would have been7 different. Strickland , 466 U.S. at 694. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Id. at 6 93. Rather , the appellant must show that the decision reached would reasonably likely have been different absent counsel’s error. Id. at 696. T hough it is not a strict outcome

determinative test , “the difference... should alter the merit of an ineffectivene ss claim only in the rarest case.” Id. at 697. To successfully demonstrate ineffectiveness for failure to object to evidence, the applicant must show that the trial court would have erred in overruling a motion to suppress

. Ex parte Martinez , 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) . A trial court commits error in admitting evidence over objection if it ac ts arbitrarily or capriciously, or without any reference to guiding rules or principles. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) . The trial court is given a limited right to be wrong, provided its decision falls within the zone of reasonable disagreement. Id. ; Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)

. Put another way , Appellant’s trial counsel was ineffective only if the trial court could not rationally deny his motion to suppress. If the c ourt could have rationally denied Appellant’s motion, then counsel was not ineffective for refusing to present it.

T he t rial c ourt c ould h ave rationally d enied Appellant’s motion to suppress. Appellant lists a number of reasons why the officers should n ot have8 searched his bag, and lumps them all together under the single claim that his trial counsel was ineffective. First, he claims that the protective sweep was itself overbroad and that the officers had no legal right to be in the motel room at all. He also claims that Appellant was unlawfully questioned while in custody and that Appellant did not consent to a search of his belongings.

a. Officers had authority to enter the motel room to serve an arrest warrant on the resident tenant
L aw enforcemen t may enter a suspect’s residence in order to execute an arrest warrant, even if no search warrant authorizes their entry. Green v. State , 78 S.W.3d 604, 609 (Tex. App.

– Fort Worth 2002, no pet.) . Although Appellant claims that “[i]t is clear that [ Appellant ] was the target of the search,” 2 the record shows that officers were attempting to execute an arr est warrant for the owner of the motel room, Brittany Gui gnard (Ct. R. vol. 1, at 11). Once she answered the door and was positively identified, the officers were authorized to enter the room and arrest Guignard under the warrant. b. Officers had authori ty to sweep the room for weapons, drugs, and people who might be hiding because circumstances indicated they would find those things A protective sweep is not a full search, but one that is quick and limited , typically conducted incident to an arrest, to protect the safety of police officers or others. Reasor v. State , 12 S.W.3d 813, 815 (Tex. Crim. App. 2000)

. Assuming

2 Appellant’s br. at 4.9 su fficient articulable facts exist to support a reasonable apprehension of danger,

o fficers may , without probable cause or reasonable suspicion, look in closets and
other immediately adjoining spaces from which an attack could be launched. Maryland v. Buie , 494 U.S. 325, 334 (1990)

. The sweep may last as long as necessary to dispel a reasonable suspicion of danger. Id. at 335

. Even outside of an arrest cont ext, i f the circumstances at the time give rise to a reasonable belief that an individual may have immediate control of a weapon, officers are permitted to briefly search the person to ensure their safety. Terry v. Ohio , 392 U.S. 1, 26 (1968)

. T hey may also search the immediate area surrounding the person and the contents of any open or closed container within that

area , provided said container is capable of conceali ng a weapon . Michigan v. Long , 463 U.S. 1032, 1049

- 50 (1983) ; Voelkel v. State , 717 S.W.2d 314, 316 (Tex. Crim. App. 1986)

. Officers may also conduct a warrantless entry and sweep if there are other compelling “exigent circumstances” making those acts objectively reasonable. Kentucky v. King , 131 S.Ct. 1849, 1856 (2011) . For example, officers may enter and search without a warrant when the circumstances ind icate it is reasonably necessary to prevent the imminent destruction of evidence. Id. at 1857. Appellant argues that no circumstances existed that would have allowed a protective sweep of the motel room or, alternatively, that the authority to sweep10 was limited to making sure than no one was hiding or destroying evidence

. The first argument is misplaced because officer s had the ability to sweep the room incident to Guignard’s arrest. See Reasnor , 12 S.W.3d at 815. The second argument fail s because the facts known to the officers, as well as the reasonable inferences drawn therefrom, indicated that the re were individuals in the room who were either armed or destroying evidence or both

. Officers were therefore authorized to search not only for individuals and drugs, but for weapons as well

. In the course of the weapons sweep, officers could open and look inside any container that could reasonably contain a firearm

. T he alternative suggested by Appellant

– that the officers could not briefly look inside such a container, in this case his bag

– would put the officer s at an unreasonable risk of harm . These officers were outnumbered by unfamiliar people in a bad neighborhood, they had received reliable information that a person matching Appellant’s description was selling drugs and armed with a firearm, and they had detected evidence of immediate drug possess ion and consumption in the

room . Appellant had already shut the blinds when he saw police and hidden in the bathroom while they knocked on the door, so officers knew he was trying to avoid police interaction , and his place of hiding was consistent with one who would flush or hide drugs

. Finally, when he was discovered Appellant had in his immediate control an opaque backpack that conceivably could conceal a weapon. Given the11 entirety of the situation, it would be wholly unreasonable t o expect officers to not secure the bag, or to simply hand it over to Appellant without any k ind of inspection. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the offi cer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm

. Terry v. Ohio , 302 U.S. 1, 24 (1963).

c. Officers need not obtain a search warrant in order to ensure their safety while executing an arrest warrant Appellant suggests that officers should have paused their arrest of Guignard in order to obtain a warrant to search Appellant’s backpack

. However, n othing in

t he Constitution requires officers to “call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause,” and courts have acknowledged that there are several acceptable reasons law enforcement may not want to immed iately obtain a warrant. Kentucky v. King , 131 S.Ct. 1 849,
1860

- 61 (2011). One of th em , applicable here, is that officers may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application. Id. at 1860. Indeed, until officers discovered methamphetamine in Appellant’s bag they had little more tha n an informed suspi cion he wa s involved in12 drug trafficking. Likewise, at the time of the search , they d id not know that Appellant was on felony probation in Fannin County and therefore had no reason to suspect his possession of a firearm was illegal. Thus they likely did not have sufficient evidence to obtain a search warrant for Appellant’s bag , and they likely could not have reasonably arrest ed Appellant for any crime at that time

. However, the officers did have a reasonable belief that he was armed while they were trying to execute an arrest warrant and secure the remainder of the motel room. They

were therefore justified in searching for weapons to protect their own safety , but it is unreasonable to suggest that they should have halted their investigation in order to obtain a warrant

. 3
d. Appellant was not under arrest at the time of the search, and o fficers could not be expected to conduct a protective sweep without asking limited, focused questions to locate the items they were searching for Finally, Appellant argues that the officers impermissibly questioned him before they searched his bag

. He a ppears to claim that because he was temporarily detained pending the officers’ sweep, he was “in custody” and officers were required to warn him before any questioning. See T EX
. C ODE C RIM
. P RO

. Art.
38.23

. He cites to Dowthitt v. State for the proposition that there are four general scenarios constituting “custody” for purposes of police questioning: (1) when the suspect is physically deprived of his freedom in any signific ant way, (2) when law

3 This is particularly so because other officers would then have to securely detain Appellant and the others in the motel room while they waited for Officer Vann to obtain the warrant.13 enforcement tells the suspect he cannot leave, (3) when law enforcement creates a situation that would lead a reasonable person to believe that his freedom has been significantly restricted, and (4) when there is probable cause to arr est and law enforcement does not tell the suspect he is free to leave. See 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) . However, Dowthitt goe s on to state that in the first, second or third scenario, the restriction upon the individual’s freedom must rise to the level of an arrest, not merely an investigative detention. Id. In the fourth scenario, the officer’s knowledge of probable cause must actually be conveyed to the suspect. Id. With that in mind, Appellant’s claim comes into serious doubt. There is nothing in the record indicating that law enforcement told Appellant he was under arrest or that he could not leave. There is likewise nothing in the record to suggest Appellant tried to leave or asked to leave and was prevented from doing so . In fact, there is nothing that suggests law enforcement informed Appellant that he was

even a suspect or that there was probable cause to arrest him. Rat her, they simply asked him whether he had a firearm on or near his person, and where it was located. Once they ascertained its location in the Appellant’s bag, it beca me necessary for officers to open the bag in order to (a) confirm the truth of his

statem ents, and (b) secure the weapon and “dispel the reasonable suspicion of danger.” See Maryland v. Buie , 494 U.S. 325, 335 (1990). Because Appellant was14 not under arrest or otherwise “in custody” at the time the officers spoke to him, and because their questions were limited to locating the immediate threat of a firearm on or near his person, officers were not require to warn him before asking questions. Appellant’s trial counsel was therefore not ineffe ctive for failing to move to suppress his answers to those questions. CONCLUSION Trial counsel’s representation did not fall below an objective standard of reasonableness, and there is nothing to suggest that Appellant would have obtained a different res ult or sentence had counsel decided to file a motion to suppress. Such a motion was not likely to succeed, as officers had a legal right to enter the residence and, once there, to sweep the residence for people, weapons, and drugs. Having located the Appel lant under suspicious circumstances and under a reasonable impression that he might be armed, the officers were justified in searching not only his person and the immediate area, but also the bag within his immediate control. The simple fact that counsel could have filed a motion to suppress, or that another attorney might have, is simply not enough to sustain a claim of ineffective assistance. Appell ant must show, from the record, that counsel’s decisions were without any plausible basis. Given the state of the law in Texas and the particular facts of this case, he has failed to do so. Moreover, Appellant has failed to show that the outcome of the case would15 have been different had counsel filed the proposed motion. Even if, arguendo , the law was murky or unclear on the propriety of the officers’ actions , there is still no reasonable probability that the trial court would have granted the motion or handed down a different sentence

. In sum, trial counsel acted on an informed and reasoned consideration of th e law and the facts of his client’s case. Appellant’s claim of ineffective assistance must therefore fail, and his point of error should be overruled.
PRAYER WHEREFORE, PREMISES CONSIDERED, there being no reversible error in the trial of this case, the Sta te respectfully moves this Court to overrule Appellant’s point of error and affirm his conviction. The State further prays for any and all such additional relief as the Court may deem just and appropriate.
D a ted: July 1 , 2015 Respectfully submitted ,

/s/ John B. Setterberg John B. Setterberg State Bar No. 24043915 Assistant Criminal District Attorney Fannin County, Texas 101 East Sam Rayburn Dr., Suite 301 Bonham, Texas 75418 903

- 583

- 7448 903

- 583

- 7682 (fax)16 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that the foregoing document contains 3, 601 words, exclusive of the portions described by T EX
. R. A PP
. P. 9.4 (i)(1), as computed by the computer program used to prepare the document.

/s/ John B. Setterberg John B. Setterberg Assistant Criminal District Attorney Fannin County, Texas

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was s erved electronically t o the individual listed below on this the 1st day of July , 2015

.

/s/ John B. Setterberg John B. Setterberg Assistant Criminal District Attorney Fannin County, Texas

Micah Belden 711 N. Travis Sherman, Texas 75090 ATTORNEY FOR APPELLANT