i CASE NOs. 06-14-00186-CR, 06-14-00187-CR, 06-14-00188-CR & 06-14-00189-CR

IN THE COURT OF APPEALS FOR THE SIXTH SUPREME JUDICIAL DISTRICT OF TEXAS

DARRIAN DAVIS-SANDERS , Appellant

v. THE STATE OF TEXAS , Appellee

APPEAL IN CAUSE NOs. CR-12- 24246, CR-12-24273, CR-12-24274 & CR-12-24275 FROM THE 336TH DISTRICT COURT OF FANNIN COUNTY, TEXAS

APPELLANT’S BRIEF

Micah Belden TBN.: 24044294 711 N. Travis Sherman, Texas 75090 P.: 903-744-4252 F.: 903-893-1734 ATTORNEY FOR APPELLANT NO ORAL ARGUMENT REQUESTED ACCEPTED 06-14-00186-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 5/14/2015 6:27:19 PM DEBBIE AUTREY

CLERKii TABLE OF CONTENTS
TABLE OF CONTENTS..............................

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IDENTITY OF PARTIES AND COUNSEL.....................

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INDEX OF AUTHORITIES

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STATEMENT OF THE CASE

...................................... .................................... .................v STATEMENT OF JURISDICTION.............

................................. ...................... ................v ISSUE PRESENTED............... ...................................................................v STATEMENT OF FACTS...........

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SUMMARY OF ARGUMENT .... ................................................................3
ARGUMENT............................................. .............................................3
CONCLUSION AND PR AYER..............................

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CERTIFICATE OF SERVIC E.....................................

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CERTIFICATE OF COMPLIANC E........................................

.......................... .................9iii IDENTITY OF PART IES AND COUNSEL The following is a complete list of all pa rties to the Trial Court’s Judgment and their counsel in the Trial Court: THE STATE OF TEXAS / Appellee: Mr. Richard Glaser 101 E. Sam Rayburn Bonham, TX 75418 P.: (903) 583-7448 F.: (903) 583-7682 DARRIAN DAVIS -SANDERS /Appellant: Mr. Micah Belden Attorney at Law 711 N. Travis Sherman, TX 75090 P.: (903) 744-4252 F.: (903) 893-1734iv INDEX OF AUTHORITIES CASES Dowthitt v. State , 931 S.W.2d 244 (Tex.Crim.App. 1996) 7 Hudson v. State, 662 S.W.2d 957 (Tex.Crim.App.1984) 4 Illinois v. Rodriguez, 497 U.S. 177 (1990) 5 Kentucky v. King, 131 S.Ct. 1849 (2011) 4 Limon v. State, 340 S.W.3d 753 (Tex.Crim.App.2011) 5 Lopez v. State, 343 S.W.3d 137 (Tex.Crim.App.2011) 7 Maryland v. Buie, 494 U.S. 325 (1990) 4 Ohio v. Robinette, 519 U.S. 33 (1996) 6 Reasor v. State, 12 S.W.3d 813 (Tex.Crim.App. 2000) 4 Shiflet v. State , 732 S.W.2d 622 (Tex.Crim.App. 1985) 7 State v. Weaver, 349 S.W.3d 521 (Tex.Crim.App.2011) 6 Steagald v. United States, 451 U.S. 204 (1981) 4 Strickland v. Washington, 466 U.S. 668 (1984) 7 Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App.1999) 7 United States v. Gould, 364 F.3d 578 (5th Cir.2004) 4 Valtierra v. State, 310 S.W.3d 442 (Tex.Crim.App.2010) 5 STATUTES Tex. Code Crim. Pro. 38.22 & 38.23 6v STATEMENT OF THE CASE On May 28, 2014, the state moved to adjudicate Mr. Davis-Sanders’s guilt in all four cases herein based on an allegation of possession of methamphetamine and a firearm in each case. On September 25, 2014, the Court entered judgments in all four cases adjudicating his guilt and sentencing him to se rve one sixty year sentence and three ten year sentences to serve concu rrently. On appeal, Mr. Davis- Sanders brings one point of

error. STATEMENT OF JURISDICTION This Court has jurisdiction to hear this appeal pursuant to § 4.03 of the Texas Code of Criminal Procedure. ISSUE PRESENTED Counsel was Ineffective for Failing to Move to Suppress the Search of the Apartment, the Bags in Which Drugs and Firearms Were Found, and Responses to Custodial Interrogation.1 TO THE HONORABLE JUDGES OF TH E SIXTH COURT OF APPEALS: COMES NOW, Appellant Darrian Davis- Sanders, (“Mr. Davis-Sanders”), and submits this brief pursuant to Rule 38.1 of the Texas Rules of Appellate Procedure, appealing the adjudication of gu ilt in these causes entered Se ptember 25, 2014. Appellee is referred to as “the State.” Mr. Davis- Sanders requests that this Honorable Court of Appeals reverse the court’s adjudication of gu ilt, conviction and punishment in each case based on ineffective assistance of counsel, and remand this ca se for a new hearing so that a motion to suppress illegally obta ined evidence can be filed. STATEMENT OF FACTS Officer Gary Vann of the City of Garland Police Department testified that he went to the apartments at 3536 West Kingley Road in response to a both tip from an informant and a subsequent corroborating phone call that two black males were in the parking lot, were attempting to sell methamphetamine and were in possession of handguns. RR 10- 11. He spoke to the apartment manager upon arrival, obtained the identity of a female who “rented the room,” and confirmed warrant s that were outstanding on the renter. Id. at 11. Officer Gann said he and a backup then: [W]ent up and did what we call a knock-and-talk. Knoc ked on the door. No one answered. Heard some people talking in side. Knocked on it again. I observed [Appellant] – matching the description of one of the suspects holding the handgun – open the blinds, which was approximately three feet from where I was standing from the door, look out. I observed him. He shut the door real quick when he noticed us, then I heard a bunch of running around, talking. Knocked again and it got real quiet. K nocked again and a young lady opened the door, which was Ms. Brittany. At that time, it was a lot of smoke – marijuana smoke. I’m a certified drug recognition expe rt. A lot of smoke. On the table, which was approximately five feet fro m where I was standing, I observed2 marijuana. I did also observe in this hot el room – it’s an open room and the only thing that you can’t see is inside the ba throom. I didn’t observe anybody else. I didn’t observe Mr. Davis-Sanders anywhe re. All I observed was the female. Heard some rustling around inside the bathroom. Made entry into the apartment – or, excu se me – into the room to secure the evidence in fear that it wa s extra circumstances due to the marijuana being on the table. Feared that some drugs were being disposed of at that time... At that point in time, as I was making my way to the bathroom, Mr. Davis-Sanders exited the bathroom. Went ahead and asked – got him out. As we were doing a protective sweep of the room, found anot her male and female. The female was hiding in the corner with the items covering her up... Id. at 11-13. The officer continued to describe his encounter: We did our protective sweep fo r our weapons and for our drugs. At that point in time, I asked the young lady, Ms. Brittany – explained to her wh at our complaint was, and she said that she did have a fire arm that belonged to her in the room and she advised me where that was... I asked Mr. Davis-Sanders ...if he had a firearm...he did oblige and said he did have a handgun in the room. I had him s it on the bed...He pointed to his backpack and he said “That one’s mine. That’s wher e the gun is.” So, I go ahead and pick the backpack up and I said , “Which compartment is th e gun in?” And he said, “The big one.” As I open th e big compartment up on to p, there was his driver’s license and social-security number – soci al security card on top of that. Underneath that was a loaded fire arm with one in the chamber... Underneath that, in plain view, there was a white bandana. Sticking out – protruding out from the white bandana, ther e was a clear white plastic baggy that contained a crystal-like substance which I recognized from my training and experience to be methamphetamine. Id. at 14-15 (emphasis added). Mr. Davis-Sanders took the stand and tes tified that he was a guest at the hotel room that day, and had been there before. Id. at 40-41. He also testified that: At the point of my arrest, we were la ying on our stomachs. [Officer Gann] called me -- he said, "You get up." He kept aski ng me what my name was. I was giving him my whole name.My name is Darrian De 'Anthony Davis-Sanders. At that time,3 he got really angry at me, said "If you don't give me your real name, I'm going to make it harder on you than it should be." I said, "I give you my real name." He kept calling me a Devarius Campbell guy. I said, "That's not me." He took -- he then took me into the room. He put me in front of the bed. I sa t in a chair just like I'm sitting now. And that's when he starte d pulling weapons and dr ugs out of bags.
RR at 46. Mr. Davis-Sanders further declared: I didn't know anything up un til the things started comi ng out of bags. There was like four bags in the room, an orange bag, a travel bag. Besides my blue bag, there was like three or four bags by themselves already in the room. Id. at 47. SUMMARY OF THE ARGUMENT Counsel was ineffective for failing to move to suppress the sear ch of the apartment and the bags which contained evidence herein, as well responses to custodial interrogation. The only evid ence Mr. Davis-Sanders violated his probation was from the overbroad “protectiv e sweep” of the apartment. The specific search of the bag exceeding the scope of the protective sweep, and any co nsent was involuntary and any responses to the officer’s questions unlawfully obtained. The evidence in this case would have been suppressed if a proper motion was filed, thus th is case should be reversed for ineffective assistance in order for coun sel to file a motion to suppress and have a hearing. ARGUMENT Counsel was Ineffective for Failing to Move to Suppress the Search of the Apartment, the Bags in Which Drugs and Firearms Were Found, and Responses to Custodial Interrogation. All of the evidence to revoke Mr. Davi s-Sanders’s probation should have been suppressed as it came from the warrantless se arch of the apartmen t, pursuant to the officer’s overbroad “protectiv e sweep” and custodial interrogation of Mr. Davis-Sanders.4 Absent the existence of ex igent circumstances or cons ent, police may not enter a residence pursuant to an arrest warrant for a nonresident without first obtaining a search

warrant. Steagald v. United States, 451 U.S. 204, 205-06 (1981); Hudson v. State, 662 S.W.2d 957, 958 (Tex.Crim.App.1984). Here, there were no sufficient exigent circ umstances to allow for a protective sweep, as there was insufficient obje ctive evidence that drugs or other evidence was being destroyed. It is clear that Davis-Sanders wa s the target of the search. Officer Gann had time to obtain a search warrant for the apartm ent based on his confidential informant and the second “corroborati ng” phone call, especially after he talked with the apartment manager. He also could have done a protectiv e sweep, detained the individuals with his backup while he obtained a search warrant. He decided to do a warrantless entry, illegal search and improper interrogati on rather than take the time to obtain a search warrant. A “protective sweep” is a “quick and limite d search of the premises” “conducted to protect the safety of police officers or others.” Reasor v. State, 12 S.W.3d 813, 815 (Tex.Crim.App. 2000) (quoting Maryland v. Buie, 494 U.S. 325, 328 (1990)). Protective sweeps are generally condu cted incident to an arrest, but the absence of an arrest does not preclude a protective sweep, ev en in a defendant's home. United States v. Gould, 364 F.3d 578, 584–86 (5th Cir.2004), abrogated on other grounds by Kentucky v. King, 131 S.Ct. 1849, 1859 (2011). For th e sweep to be valid, the poli ce must not have entered the home illegally, and their presence must be for valid law enforcement purposes. Id. at 587. A legitimate protective sweep must be suppor ted “‘by a reasonable, articulable suspicion ... that the area to be swept harbors an indi vidual posing a danger to’ those on the scene,”5 and may be no more than a “‘cursory inspec tion of those spaces where a person may be found.’ “ Id. (quoting Buie, 494 U.S. at 1099–1100); see also Reasor, 12 S.W.3d at 817 (“[A] police officer may sweep the house only if he possesses an objectively reasonable belief, based on specific and articulable facts, th at a person in that area poses a danger to that police officer or to other people in th e area.”). Finally, the sweep must ‘“last[ ] no longer than is reasonably necessary to di spel the reasonable su spicion of danger.’” Gould, 364 F.3d at 587 (quoting Buie, 494 U.S. at 1099). Finally , such sweeps are permitted only when a police officer possesses an objec tively reasonable belief, based on specific and articulable facts, that a person in the area poses a danger to that police officer or to other people in the area. Reasor , 12 S.W.3d at 817. Here, th e protective pretext was a simple pretext and excuse to evade the warrant requirement for domiciles, and specific and articulable facts did not support a protective sweep. The Fourth Amendment to the United States Constitu tion prohibits unreasonable searches and seizures. Limon v. State, 340 S.W.3d 753, 756 (Tex.Crim.App.2011); see U.S. Const. amend. IV; Illinois v. Rodriguez, 497 U.S. 177, 179 ( 1990). The entry into a residence by police officers is a “search” for purposes of the Fourth Amendment. Limon, 340 S.W.3d at 756; Valtierra v. State, 310 S.W.3d 442, 448 (Tex.Crim.App.2010). A warrantless police entry into a residence is presumed unreasonable unless the entry falls within one of a well-defi ned group of exceptions. Limon, 340 S.W.3d at 756; Valtierra, 310 S.W.3d at 448. Voluntary consent is an exception to the search warrant requirement. Rodriguez, 497 U.S. at 181; Limon, 340 S.W.3d at 756; Valtierra, 310 S.W.3d at 448. An owner's or6 occupant's voluntary consent makes the en try into a residence by police officers constitutionally “reasonable.” Rodriguez, 497 U.S. at 181; Valtierra, 310 S.W.3d at 448. Consent may be given orally or by action, or may be shown by circumstantial evidence. State v. Weaver, 349 S.W.3d 521, 526 (Tex.Crim.App.2011); Valtierra, 310 S.W.3d at 448. The validity of an alleged consent to sear ch is a question of fact to be determined from the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Weaver, 349 S.W.3d at 526; Valtierra, 310 S.W.3d at 448. The State must prove voluntary consent by clear and convincing evidence. Weaver, 349 S.W.3d at 526; Valtierra, 310 S.W.3d at 448. Here, even if the door was opened and enough consent for the police officer to enter to arrest the female for which he had a conf irmed warrant, the officer was only able to conduct a limited protective sweep of the apartm ent for persons to ensu re that none were a danger or destroying drug evidence under Kentucky v. King. However, after that his actions became unreasonable. This record states that while Mr. Davis-Sa nders was not in custody, he was under a show of force from the police wh en they began interrogating him. In response to this force, he may have responded to their que stions. However, the circumstances do not indicate a voluntary consent nece ssary to search the bag in qu estion, which led to the only evidence which could revoke Mr. Davis-Sanders ’s probation. The officer did not testify that Mr. Davis-Sanders consented to his search. Under Code of Criminal Procedure article s 38.22 and 38.23, his statements and the search which led to the incriminating ev idence against him were involuntary and the7 result of the illegal search. In Dowthitt v. State , 931 S.W.2d 244 (Tex.Crim.App. 1996), the Court of Criminal appeals noted that: We have outlined at least four general si tuations which may co nstitute custody: (1) when the suspect is physica lly deprived of his freedom of action in any significant way, (2) when a law enforcem ent officer tells th e suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest a nd law enforcement officers do not tell the suspect that he is free to leave. (citing Shiflet v. State , 732 S.W.2d 622, 629 (Tex.Crim. App. 1985)). Here, at least prongs (3) and (4) were met. Because Mr. Davis-Sanders was in custody for state law purposes, the police were required to give him his Miranda and 38.22 warnings prior to questioning him. Any questioning of M r. Davis-Sanders was unlawful, and any “consent” alleged to be given was involuntary. Ineffective assistance is cognizable on di rect appeal if the record is clear. Lopez v. State, 343 S.W.3d 137, 142–43 (Tex.Cri m.App.2011). To prevail under Strickland , a defendant must show th at (1) counsel's performance was deficient, and (2) the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). While a complete suppression hearing was not held in this case, the record demonstrates firmly that an illegal search wa s conducted. The officer entered without a warrant intending to bypass the warrant requi rement, Mr. Davis-Sanders did not consent to the search herein, the scope of the pr otective sweep was exceeded, and because any responses he made to the police officer we re involuntary and illegal, the search and8 questioning was inadmissible at the hearing here in had a motion to suppress been filed. Counsel’s performance was defi cient for failing to file a motion to suppress and Mr. Davis-Sanders was prejudiced because the on ly evidence suffici ent to violate his probation was obtained as the result of an illega l search. This Court should reverse this case and remand for a new hearing in which Counsel can file a suppression motion to challenge this unlawful search and seizure. CONCLUSION & PRAYER Wherefore, premises consid ered, Mr. Davis-Sanders prays that this Court, after reviewing the record and the arguments of parties, reverse the adjudication of guilt, conviction and sentence in this case, a nd remand for a new trial on punishment. RESPECTFULLY SUBMITTED,
/s/ Micah Belden

__________________ Micah Belden State Bar No. 24044294 711 N. Travis Sherman, TX 75090 P.: 903-744-4252 F.: 903-893-1734 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was served upon the Fannin County District A ttorney’s Office, Mr. Richar d Glaser, on May 14, 2015 by email. /s/ Micah Belden

_____ Micah Belden9 CERTIFICATE OF COMPLIANCE This is to certify that this document c ontains 2,510 words, exclusive of those excluded by the Texas Rules of Appellate Procedure.
/s/ Micah Belden