No. 01-17-00352-CR

In the Court of Appeals

For the First District of Texas

At Houston

♦

No. 1515550

In the 351st District Court

Of Harris County, Texas

♦

Nelson Oroyo Rodriguez

Appellant

v.

The State of Texas

Appellee

♦

State’s Appellate Brief

♦

Clint Morgan

Assistant District Attorney

Harris County, Texas

State Bar No. 24071454

morgan_clinton@dao.hctx.net

1310 Prairie, Suite 500

Houston, Texas 77002

Telephone: 713 274 5826

Kim Ogg

District Attorney

Harris County, Texas

Lisa Colins

Joseph Allard

Assistant District Attorneys

Harris County, Texas

Oral Argument Not Requested

ACCEPTED

01-17-00352-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

3/19/2018 11:38 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/19/2018 11:38:14 PM CHRISTOPHER A. PRINE Clerk
i

Statement Regarding Oral Argument

The appellant requested oral argument because he believes it 

“would serve to emphasize and clarify the important legal points 

regarding this appeal.” (Appellant’s Brief at 7).1 The State believes the 

legal points of this appeal are straightforward and well-covered by the 

parties’ briefs. Accordingly, the State does not request oral argument.

1 The only page in the appellant’s brief that is numbered is the cover. The State 

will cite to the page numbers of the PDF file of the appellant’s brief.
ii

Identification of the Parties

Counsel for the State:

Kim Ogg

 District Attorney of Harris County

Lisa Collins & Joseph Allard

 Assistant District Attorneys at trial

Clint Morgan

— Assistant District Attorney on appeal

Appellant:

Nelson Oroyo Rodriguez

Counsel for the Appellant:

Jonathan Gluckman

— Counsel at trial

Tom Abbate

— Counsel on appeal

Trial Court:

A. Reagan Clark

 Presiding judge
iii

Table of Contents

Statement Regarding Oral Argument ...................................i

Identification of the Parties...............................................ii

Table of Contents ........................................................... iii

Index of Authorities ........................................................ iv

Statement of the Case ...................................................... 1

Statement of Facts ........................................................... 1

Reply to Point One .......................................................... 3

Police had probable cause to believe the appellant’s phone and shoes 

were evidence of a crime, thus police lawfully seized them under the 

plain view doctrine........................................................................3

Reply to Point Two........................................................... 8

The trial court’s finding that the appellant consented to police 

taking DNA samples and GSR swabs from his person is supported 

by the record and is not clearly erroneous. .....................................8

Conclusion ................................................................... 16

Certificate of Compliance and Service .............................. 17
iv

Index of Authorities

Cases

Aguayo v. State

No. 08-13-00283-CR, 2015WL 6741873 (Tex. App.—

El Paso Nov. 4, 2015, no pet.) 

(mem. op. not designated for publication)....................................14

Arrick v. State

107 S.W.3d 710 (Tex. App.—

Austin 2003, pet. ref’d) .............................................................6, 7

Derichsweiler v. State

348 S.W.3d 906 (Tex. Crim. App. 2011)....................................... 6

Martinez v. State

91 S.W.3d 331 (Tex. Crim. App. 2002)......................................... 5

Meekins v. State

340 S.W.3d 454 (Tex. Crim. App. 2011)....................................... 9

Schneckloth v. Bustamonte

412 U.S. 218 (1973) .............................................................12, 14

State v. Betts

397 S.W.3d 198 (Tex. Crim. App. 2013)....................................... 6

State v. Roades

No. 07-11-0077-CR, 2012WL 6163107 (Tex. App.—

Amarillo Dec. 11, 2012, no pet.) 

(mem. op. not designated for publication)....................................13

United States v. Terry

400 F.3d 575 (8th Cir. 2005) ....................................................... 7

United States v. Waldrop

404 F.3d 365 (5th Cir. 2005) ....................................................... 8

United States v. Wells

98 F.3d 808 (4th Cir. 1996) ......................................................... 7

Washburn v. State

235 S.W.3d 346 (Tex. App.—

Texarkana 2007, no pet.).............................................................13
v

Zarychta v. State

44 S.W.3d 155 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d) .......................................... 6

Statutes

TEX. TRANSP. CODE § 724.015.......................................................13
1

Statement of the Case

The appellant was indicted for capital murder. (1 CR 4). The appellant 

pleaded not guilty but a jury found him guilty as charged. (4 RR 21; 2 CR 

269). Because the State did not seek the death penalty, the trial court 

assessed punishment at confinement for life without the possibility of parole. 

(2 CR 272). The appellant filed a notice of appeal and the trial court 

certified his right of appeal. (2 CR 276, 278). 

Statement of Facts

Osorio Gonzalez and Denelio Duarte sold drugs out of a house they 

shared with three other people. (5 RR 16-18, 24). The appellant and three 

others decided to break into the house and steal money and drugs. (5 RR 

168-71, 194). When the robbers arrived at the house, no one was home; 

rather than going in to steal the items non-violently, the robbers waited for 

people to return to the house because part of their objective was to “get the 

person that lived at the house.” (5 RR 174-75). 

Gonzalez, Duarte, and two of their housemates returned home from a 

club around 3am. (5 RR 25). As they were filing into the house, the robbers 

emerged from the shadows and forced their way inside. (5 RR 26-28, 182). 

One robber held Duarte on the ground at gunpoint while Gonzalez ran into 

a back room to get a gun. (5 RR 183, 187). Gonzalez and the appellant 
2

exchanged gun fire with each getting hit; Duarte was also shot. (4 RR 36; 5 

RR 38-41, 188). The robbers fled the scene empty-handed, but Gonzlez died 

from his injuries. (5 RR 195; 7 RR 19). 

The robbers dropped the appellant off at a nearby emergency room. (4 

RR 201-04; 5 RR 191). Once he was stabilized, the appellant was 

transported to the same hospital where Duarte was being treated and where 

Gonzalez’s body was being held. (5 RR 240-41). 

Harris County Sheriff’s Deputy Eric Frederick was dispatched to the 

hospital to interview the appellant, who had reported he was the victim of an 

aggravated robbery. (4 RR 77-78). The appellant said he got shot when two 

black males robbed him of his phone and wallet outside a club. (4 RR 80). 

Deputy Frederick doubted this story because he saw the appellant talking on 

his cell phone, and because the appellant produced his identification from 

his wallet. (4 RR 83). Police quickly connected the appellant to the home 

invasion; ultimately, DNA tests would match the appellant to several blood 

stains at the scene, the appellant’s cell phone showed he was at the scene at 

the time of the robbery, and one of the other robbers testified against the 

appellant at trial. (4 RR 86; 5 RR 164-195; 6 RR 151-60, 211-13). 
3

Reply to Point One

Police had probable cause to believe the appellant’s phone and shoes 

were evidence of a crime, thus police lawfully seized them under the 

plain view doctrine.

At trial, the appellant raised an objection to the police seizure of his 

phone and shoes while he was at the hospital. The appellant complained that 

the warrantless seizure was unlawful. After a mid-trial hearing outside the 

presence of the jury, the trial court overruled the objection. (See 4 RR 140-

164, 211-12). In his first point of error, the appellant complains that the trial 

court’s ruling was erroneous. (Appellant’s Brief at 12-29).

The only witness at the hearing was Daniel DellaSala, the crime scene 

investigator for the Harris County Sheriff’s Office who collected the 

appellant’s belongings from the hospital. DellaSala testified that he and 

another crime scene investigator, Billy Davis, were dispatched to the hospital 

where the appellant and the two victims had been taken. (4 RR 142). At the 

hearing, DellaSala testified that he took from the appellant’s hospital room 

“[s]ome various clothing items ... a wallet, as well as a cellphone....”2(4 RR 

145). DellaSala testified he took these items to preserve them for evidence. 

(4 RR 145). He described numerous ways in which cell phones can provide 

2 After the hearing, he gave a more detailed description of what he took, specifically 

mentioning, inter alia, “a pair of tennis shoes.” (4 RR 178). 
4

evidence of criminal offenses, as well as describing ways that data can be 

deleted or altered on cell phones. (4 RR 145-47). However, DellaSala 

testified that investigators typically get warrants before searching the data 

inside a cell phone; indeed, though DellaSala seized the phone without a 

warrant, no search of the phone’s contents was made in this case until a 

warrant was obtained. (4 RR 158).

After DellaSala’s testimony, the parties presented arguments. The 

appellant conceded that DellaSala had probable cause to seize the phone, 

but claimed that he needed a warrant to do so.3(See 4 RR 156). The State 

argued that the seizure was appropriate due to exigent circumstances. (4 RR 

162, 164). After discussing the case with the parties, the trial court denied 

the motion. (4 RR 164). 

In his brief, the appellant’s entire point revolves around DellaSala’s 

testimony and the arguments at the hearing. However, a trial court’s ruling 

on the admissibility of evidence is reviewed for an abuse of discretion and an 

appellate court must affirm the decision if it was correct under any theory of 

law applicable to the case, regardless of the arguments presented to the court 

3 Later, defense counsel explained to the trial court that he believed his objection covered 

all of the items DellaSala seized, including his shoes. (4 RR 211-12). At that time, which 

was before evidence from the shoes was admitted, the appellant “renewed” his objection 

as regarded the seizure of his shoes and the trial court overruled the objection. (4 RR 

212). The State will assume, without conceding, that the appellant preserved his 

complaint regarding his shoes. 
5

or the stated basis of the trial court’s ruling. See Martinez v. State, 91 S.W.3d 

331, 336 (Tex. Crim. App. 2002).

Prior to the hearing, the State had presented the testimony of Deputy 

Eric Fredrick. Fredrick had been dispatched to investigate the appellant’s 

report that he had been shot during a robbery. (4 RR 78). The appellant told 

Fredrick that “two unknown black males” had jumped him outside the 

Mekano Club off Richmond Ave. in Houston. (4 RR 80-81, 84). The 

appellant told Frederick that the “two unknown black males” had taken his 

wallet and his cell phone. (4 RR 83).

However, Fredrick called dispatch and was told that there had been no 

reports of shots fired near the Mekano Club. (4 RR 82). Fredrick also 

observed the appellant talking on a cell phone, and the appellant produced 

identification from his wallet, leading Fredrick to suspect that the robbery 

story was not the truth. (4 RR 83). Fredrick was also aware that there had 

been a shootout at a home invasion robbery very near the hospital, which, 

combined with the appellant’s fake cover story, led Fredrick to believe the 

appellant might be connected to that robbery. (4 RR 84-85). After speaking 

with the appellant, Fredrick contacted his supervisors and relayed his 

suspicions about the appellant’s “conflicting story.” (4 RR 87). The

supervisor dispatched DellaSala and Davis to the hospital. (4 RR 87). 
6

When police officers are lawfully in a location and see an item whose 

nature as contraband or evidence is immediately apparent, police may seize 

the item under the plain view exception to the warrant requirement. State v. 

Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013); Arrick v. State, 107 

S.W.3d 710, 719 (Tex. App.—Austin 2003, pet. ref’d). The test for whether 

the incriminating nature of the item is “immediately apparent” is whether, 

without conducting any additional searches, police have probable cause to 

believe the item is contraband or evidence. Zarychta v. State, 44 S.W.3d 155, 

166–67 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Whether 

probable cause exists in a particular case is not determined by looking at the 

knowledge of a particular officer, but by looking at the combined knowledge 

of all cooperating police officers. See Derichsweiler v. State, 348 S.W.3d 906, 

912 (Tex. Crim. App. 2011) (when determining whether police had 

reasonable suspicion for warrantless detention, reviewing court looks at 

collective knowledge of all cooperating police); Woodward v. State, 668 

S.W.2d 337, 344 (Tex. Crim. App. 1982) (op. on reh’g) (when determining 

whether police had probable cause for warrantless arrest, reviewing court 

looks at collective knowledge of police).

In this case, Fredrick had probable cause to suspect that the 

appellant’s phone and clothing might contain evidence of several crimes —
7

the uncorroborated aggravated robbery that the appellant reported being the 

victim of; the false report to a police officer that Frederick suspected the 

appellant of; and the deadly home invasion that seemed to fit the facts of the 

situation. By providing evidence of the appellant’s locations and 

communications, the cell phone could prove or disprove any of these 

offenses. The appellant’s clothing likewise would probably contain residual 

forensic evidence that would constitute evidence of these offenses. See Arrick, 

107 S.W.3d at 719 (belief that killer wore footwear at time of offense 

provided probable cause to seize footwear). 

Because DellaSala was collecting evidence based on the report 

submitted by Fredrick — indeed, while Fredrick was still at the hospital —

the collective knowledge doctrine imputes to DellaSala Frederick’s 

knowledge relating to probable cause. See United States v. Wells, 98 F.3d 808, 

810 (4th Cir. 1996) (where officer who conducted warrantless seizure of 

firearm from defendant did not personally have knowledge that defendant 

was felon but other officers in investigation were aware of that fact, collective 

knowledge and plain view doctrines justified seizure); United States v. Terry, 

400 F.3d 575, 581 (8th Cir. 2005) (“We impute information [supporting 

probable cause] if there has been ‘some degree of communication’ between 

the officers. This requirement distinguishes officers functioning as a team 
8

from officers acting as independent actors who merely happen to be 

investigating the same subject.”); United States v. Waldrop, 404 F.3d 365, 370 

(5th Cir. 2005) (applying collective knowledge and plain view doctrines to 

justify warrantless seizure); (see also 4 RR 156 (defense counsel conceding to 

trial court that police had probable cause to seize the phone and 

belongings)). Because DellaSala had probable cause to believe the cell phone 

and shoes constituted evidence of an offense, and because these items were 

in plain view, DellaSala was justified in seizing them and the trial court did 

not err in overruling the appellant’s objection. 

Reply to Point Two

The trial court’s finding that the appellant consented to police taking 

DNA samples and GSR swabs from his person is supported by the 

record and is not clearly erroneous.

While the appellant was in the hospital, he consented to police taking a 

buccal swab sample of his DNA, and swabbing his hands for gun-shot 

residue. Prior to trial the appellant filed a motion to suppress the resulting 

evidence, claiming that his consent was not effective. (2 CR 189). After a 

pre-trial hearing the trial court denied this motion. (2 RR 119). In his 

second point of error the appellant claims that the trial court’s ruling was 

erroneous. (Appellant’s Brief at 30-45).
9

Although the Fourth Amendment generally requires a warrant before 

police may conduct a search, one of the recognized exceptions to that 

requirement is if the subject of the search voluntarily consents. Meekins v. 

State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011). Whether a particular 

subject’s consent was voluntary is a fact question that, if challenged, a trial 

court will determine based on the totality of the circumstances. Id. at 459-

60. The burden of proof in the trial court is whether voluntariness is proven 

by clear and convincing evidence. Ibid. On appeal, a trial court’s finding of 

volunatriness must be afforded great deference and will be disturbed only if 

it is “clearly erroneous.” Id. at 460. The Court of Criminal Appeals laid out 

the appropriate question for appellate courts reviewing a trial court’s 

determination of voluntariness: “Could a rational trier of fact conclude, by 

clear and convincing evidence (less than beyond a reasonable doubt), based 

upon all of the facts and logical inferences that can be drawn from those 

facts, that [the subject] voluntarily consented to the search?” Id. at 459 n. 

24. 

The State presented three witnesses at the hearing. The first was

Cassandra Kendrick, an emergency-room nurse who helped treat the 

appellant. (2 RR 8). Kendrick said that she was able to communicate with 

the appellant in English. (2 RR 15-16). She characterized the appellant as 
10

“alert and awake.” (2 RR 20). She remembered going over with the 

appellant consent for an operation; she believed the appellant was capable of 

consent at the time, and he initialed and signed the relevant paperwork as 

needed. (2 RR 24-25). She said the hospital had procedures for patients who 

were incapacitated and could not consent to surgery, but those procedures 

were not implemented in this case. (2 RR 26). 

The next witness was Deputy Billy Davis, a crime scene investigator 

with the Harris County Sheriff’s Department. (2 RR 43-44). Davis said that 

he was under the impression that the appellant could not speak Spanish, so 

he made use of a Spanish-speaking deputy to serve as a translator. (2 RR 48-

49). Davis said that he explained to the appellant that he wanted to do both 

a gun-shot residue (GSR) collection and a DNA collection. (2 RR 50). 

Davis said that the appellant was able to communicate, and that everyone 

spoke in a normal tone of voice. (2 RR 51). Davis said that he had the 

translator advise the appellant he could refuse consent. (2 RR 52). Davis 

said the appellant was polite and cooperative. (2 RR 52-53). Davis said he 

neither threatened the appellant nor demanded that he sign the consent 

form. (2 RR 56). Davis said that he never saw the appellant become 

incoherent. (2 RR 58)-59). Davis said that the appellant appeared to be in 

pain, but he never drifted out of consciousness. (5 RR 71). 
11

Deputy Jorge Reyes testified that he served as a translator for Davis. (2 

RR 76-77). Reyes said that he spoke with the appellant in a “regular” tone 

and never raised his voice. (2 RR 77). Reyes said that as he translated what 

Davis said, he made it clear that it was the appellant’s choice whether to 

consent. (2 RR 79). Reyes said that the appellant never drifted out of 

consciousness while he was speaking with him. (2 RR 81). Reyes said that 

the appellant never said he did not wish to speak with police, but remained 

cooperative the whole time. (2 RR 81). Reyes said that he walked the 

appellant through a Spanish-language consent form, and the appellant 

signed it. (2 RR 82-84; State’s Ex. 2 (8A RR 239)). 

After these witnesses, the appellant testified. He claimed he did not 

remember anything that the officers testified about and did not remember 

signing the consent form. (2 RR 105). 

The parties then presented arguments. Defense counsel argued that 

the appellant may have been on morphine at the time.4(2 RR 109). Defense 

counsel argued that police could have obtained a warrant. (2 RR 110-11). 

Defense counsel argued that the appellant was not free to leave at the time, 

and the deputies should have Mirandized the appellant. (2 RR 112-13). 

4 As defense counsel later admitted, the record on this point was not clear. (2 RR 113-

14).
12

The prosecutor responded by pointing out that the fact that officers 

could have obtained a warrant did not mean consent was insufficient. (2 RR 

116). The prosecutor pointed out that case law focuses on the behavior and 

demeanor of the officers seeking consent, and the evidence showed that the 

officers here spoke calmly and did not threaten the appellant. (2 RR 116-

17). The prosecutor further pointed out that at the time the officers 

interacted with him the appellant had reported being the victim of a crime, 

thus there seemed little reason for them to intimidate him. (2 RR 117). The 

prosecutor disputed defense counsel’s claim that the appellant was on 

morphine, but then noted that drug use “does not bar the ability to give 

consent, as long as they showing that they are able to understand what is 

being asked of them and able to give that consent.” (2 RR 117-18). The 

prosecutor reiterated the deputies’ testimony that the appellant seemed alert 

and interactive. (2RR 118). The trial court found that the appellant’s 

consent to the search was voluntary. (2 RR 119). 

On appeal, the appellant claims that his consent was involuntary 

because his will was overborne. (Appellant’s Brief at 38 (citing Schneckloth v. 

Bustamonte, 412 U.S. 218, 226 (1973))). In Schneckloth, the Supreme Court 

reviewed cases where it had been asked to determine whether a statement 

was given voluntarily. The court listed several factors it had considered in 
13

those cases: The “youth” of the accused, his lack of education, his low 

intelligence, the lack of any advice regarding constitutional rights, the length 

of detention, the repeated and prolonged nature of the questioning, and the 

use of physical punishment such as the deprivation of food or sleep. 412 U.S 

at 226. The court emphasized that none of these factors standing alone was 

determinative. Id. at 226-27. 

The appellant adduced no evidence that he was particularly young,5

ill-educated, or of low intelligence. The appellant admits that the deputies’ 

questioning was not repetitive, and that the length of detention (if any) was 

not overly long. (Appellant’s Brief at 39). 

The appellant claims that because he was not Mirandized or read “any 

warnings or admonishment like those contained in the DIC-23[6][sic] forms”

that is a factor that weighs in his favor. (Appellant’s Brief at 39). However, 

both deputies testified that they told the appellant he was free to refuse 

5 Medical records show that the appellant was 30 years old at the time. (8A RR 16). 

6 The DIC-24 is a statutory warning read to DWI suspects in Texas that advises them of 

the administrative consequences of refusing to provide a requested blood or breath 

specimen. See, e.g. Washburn v. State, 235 S.W.3d 346, 351 (Tex. App.—Texarkana 2007, 

no pet.); TEX. TRANSP. CODE § 724.015. The relevance of the DIC-24 here is not 

obvious. If a defendant voluntarily consents to give a breath or blood sample, an officer’s 

failure to read a DWI suspect the DIC-24 is of no legal significance. State v. Roades, No. 

07-11-0077-CR, 2012 WL 6163107, at *3 (Tex. App.—Amarillo Dec. 11, 2012, no pet.)

(mem. op. not designated for publication). Moreover, the appellant would not have faced 

any legal consequences had he refused consent to search, thus there was nothing 

equivalent to the DIC-24 that could have been read to him. 
14

consent. (2 RR 52, 79). When viewed with appropriate deference to the trial 

court’s findings, this factor weighs in favor of the State.

The appellant’s only remaining argument is that “the psychological 

impact of being questioned immediately prior to having a bullet surgically 

removed from one’s person weighs in his favor and overrides many, if not all 

other concerns.” (Appellant’s Brief at 40). The appellant does not cite to any 

authority for this proposition and the State is aware of none. All cases 

involving questions of consent are determined by the totality of the 

circumstances, not any particular factor. Schneckloth, 412 U.S. at 226-27. If 

the appellant was in pain, that is certainly that something that can factor into 

the analysis, but in this case the trial court had before it the testimony from

two officers and a nurse that the appellant seemed lucid, alert, and 

cooperative at the relevant time period. Given that testimony, the State 

submits that the appellant’s assertions of pain are not sufficient to show that 

the trial court’s finding of voluntariness was clearly erroneous. See Rayford v. 

State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003) (holding consent to 

search was voluntary despite defendant undergoing medical procedures and 

complaining of pain); Aguayo v. State, No. 08-13-00283-CR, 2015 WL 

6741873, at *2, *4 (Tex. App.—El Paso Nov. 4, 2015, no pet.) (mem. op. 

not designated for publication) (same). Accordingly, the trial court did not 
15

err in overruling the appellant’s objection and this Court should reject his 

second point.
16

Conclusion

The State asks this Court to affirm the judgment of the trial court.

KIM OGG

District Attorney

Harris County, Texas

/s/ C.A. Morgan

CLINT MORGAN

Assistant District Attorney

Harris County, Texas

1310 Prairie, Suite 500

Houston, Texas 77002

Telephone: 713 274 5826

Texas Bar No. 24071454
17

Certificate of Compliance and Service

I certify that, according to Microsoft Word, the portion of this brief for 

which Rule of Appellate Procedure 9.4(i)(1) requires a word count contains 

3,303 words.

I also certify that I have requested that efile.txcourts.gov electronically 

serve a copy of this brief to:

Tom Abbate

tom@tomabbatelaw.com

/s/ C.A. Morgan

CLINT MORGAN

Assistant District Attorney

Harris County, Texas

1310 Prairie, Suite 500

Houston, Texas 77002

Telephone: 713 274 5826

Texas Bar No. 24071454

Date: March 19, 2018