NO. 03-15-00053-CR 

IN THE COURT OF APPEALS 

THIRD DISTRICT OF TEXAS AT AUSTIN 

*************************************************** 

CAUSE NO. 71,785 

IN THE 264TH JUDICIAL DISTRICT OF 

BELL COUNTY, TEXAS 

***************************************************

KEVIN DUAN DRISDALE APPELLANT 

VS 

 THE STATE OF TEXAS APPELLEE 

*************************************************** 

APPELLANT’S BRIEF 

___________________________________________________ 

APPEAL OF JUDGMENT IN CAUSE NO. 71,785 

FROM THE 264TH JUDICIAL DISTRICT 

OF BELL COUNTY, TEXAS 

___________________________________________________ 

NO ORAL ARGUMENT REQUESTED 

 JAMES H. KREIMEYER 

 ATTORNEY FOR APPELLANT 

 P.O. BOX 727 

 BELTON, TEXAS 76513 

 (254) 939-9393 

 (254) 939-2870 FAX 

 T.S.B. #11722000 

 jkreime@vvm.com 

ACCEPTED

03-15-00053-CR

6660449

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/26/2015 12:51:06 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/26/2015 12:51:06 PM JEFFREY D. KYLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL 

Judge at Trial: Hon. Martha J. Trudo 

 264th Judicial District 

 P.O. Box 324 

 Belton, Texas 76513 

Prosecutors: Michael Waldman 

 Asst. District Attorneys 

 P.O. 540 

 Belton, Texas 76513 

Defense Attorney at Trial Scott Wilkerson 

 Attorney at Law 

 100 W. Cent.TX Exp S305 

 Harker Heights, TX 76542 

 

Attorney for Appellant: James H. Kreimeyer 

 Attorney at Law 

 P.O. Box 727 

 Belton, TX 76513 

 

Attorney for Appellee: Bob Odom 

Asst. District Attorney 

 P.O. Box 540 

 Belton, Texas 76513 

Appellant: Kevin Duan Drisdale 

 TDCJ#01972026 

 James Bradshaw State Jail 

 P.O. Box 9000 

 Henderson, TX 75653 

 

 
iii

TABLE OF CONTENTS 

 PAGE NO. 

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

TABLE OF CONTENTS. . . . . . . . . . . . . .iii

INDEX OF AUTHORITIES. . . . . . . . . . . .iv-v 

STATEMENT OF THE CASE. . . . . . . . . . . .1-3 

ISSUES PRESENTED. . . . . . . . . . . . . . . 3 

STATEMENT OF FACTS. . . . . . . . . . . . . 3-9 

 

SUMMARY OF THE ARGUMENT. . . . . . . . . . . .9 

ARGUMENT STANDARD OF REVIEW . . . . . . . .9-17 

 

PRAYER. . . . . . . . . . . . . . . . . . . .18 

CERTIFICATE OF COMPLIANCE. . . . . . . . . . 19 

CERTIFICATE OF SERVICE. . . . . . . . . . . .20 
iv

INDEX OF AUTHORITIES 

CASES: PAGE NO.

Malone v. State, 163 S.W.3d 785, 795 

(Tex. App. 2005). . . . . . . . . . . . . . 10 

State v. Ibarra, S.W.2d 242, 243 

(Tex. Crim. App. 1997). . . . . . . . . . . 10 

U.S. v. Matlock, 415 U.S. 164 (1974). . . .10,11,17 

Georgia v. Randolph, 547 U.S. 103, 104, (2006)11-12 

 

Rivas v. State, 446 S.W.3d 575, 580 

(Tex. App. 2014), on remand from pdr, reh’g 

overruled (Oct. 30, 2014). . . . . . . . . .12 

Pruett v. State, 463 S.W.2d 191, 194 

 (Tex. Crim. App. 1970). . . . . . . . . . . 12 

Denton v. Texas Dep’t of Pub. Safety Officers Ass’n

862 S.W.2d 785, 791 (Tex. App. 1993), writ 

granted (May 11, 1994), aff’d and remanded, 

897 S.W.2d 757 (Tex. 1995). . . . . . . . . 13 

U.S. v. Taylor, 600 F.3d 678 (2010). . . . . .13-15 

U.S. v. Salinas-Cano, 959 F2d 861 

(10th Cir.1992). . . . . . . . . . . . . .14-15 

Frazier v. Cupp, 394 U.S. 731, 740, (1969). . . .16 

Coolidge v. New Hampshire, 403 U.S. 443, (1971). 16 
v

STATUES:

United State Constitution 

 Fourth Amendment. . . . . . . . . . . . . . .7 

 Fifth Amendment. . . . . . . . . . . . . . . 7 

 Sixth Amendment. . . . . . . . . . . . . . . 7 

 Fourteenth Amendment. . . . . . . . . . . . .7 

Texas Constitution 

 Article I §9. . . . . . . . . . . . . . . . .7 

 Article I §10. . . . . . . . . . . . . . . . 7 

 Article I §19. . . . . . . . . . . . . . . . 7 

Texas Crim. Proc. Code 

 Article 38.23. . . . . . . . . . . . . . . . 7 
1

NO.03-15-00053-CR 

IN THE 

COURT OF APPEALS 

THIRD DISTRICT OF TEXAS 

AT AUSTIN 

***************************************************** 

KEVIN DUANE DRISDALE APPELLANT 

 

VS. 

THE STATE OF TEXAS APPELLEE 

******************************************************

APPELLANT’S BRIEF 

STATEMENT OF THE CASE 

 

KEVIN DUANE DRISDALE, appellant, was 

charged by indictment in paragraph one with the 

offense of possessing, with intent to deliver, 

a controlled substance: Cocaine, more than four 

grams but less than 200 grams. In paragraph two 

of the indictment, a prior conviction for a 

similar offense was alleged for enhancement. 

(Cl. R. at 4) 
2

 After hearing appellant’s motion to 

suppress search and arrest; (Cl. R. at 18) the 

motion was denied by the trial court. 

Appellant then entered a plea of guilty with a 

plea agreement to be sentenced to twenty (20) 

years in the Texas Department of Criminal 

Justice—Institutional Division. (Cl. R. at 

33)(R.R. VIII at 25) Appellant’s right to 

appeal his pre-trial motion to suppress was 

preserved. (Cl. R. at 33) The trial court 

followed the plea recommendation and sentenced 

appellant to twenty (20) years in the 

Institutional Division. (R.R. VIII at 30) 

Appellant’s trial lawyer filed a motion 

for new trial on January 7, 2015. (Cl. R. at 

51) The trial court denied the motion on the 

same date. (Cl. R. at 53) A notice of desire 

to appeal pro se was filed on January 5, 2015. 

(Cl. R. at 43) An amended notice of appeal was 
3

filed by appellate counsel with this court on 

March 25, 2015.

STATEMENT REGARDING ORAL ARGUMENT 

 Appellant does not request oral argument.

ISSUE PRESENTED 

 The trial court erred in denying 

appellant’s motion to suppress because the 

consent to search given to law enforcement 

officers by appellant’s co-tenant did not 

extend to the contents of the container opened 

and viewed by the law enforcement officers and 

seized by the law enforcement officers without 

a search warrant. 

STATEMENT OF FACTS 

 Appellant proffered that at the time of 

his arrest there was no warrant to arrest 

appellant and the State agreed Appellant had 

“standing”. (R. R. VII at 5) On August 11, 2013 

City of Killeen police officers responded (R.R. 
4

VII at 7) to a 911 “hang up” call to an 

apartment complex in Killeen, Bell County, 

Texas. 

 A female flagged the officers down. A 

Killeen police officer, Stickles; along with an 

officer in training, Hydorn, were the 

responding officers. (R.R. VII at 9) After 

verifying the female was the caller, Brenda 

Layton. Layton pointed to appellant, who was 

standing on a second story walkway. Layton told 

officers appellant would run, had drugs and was 

on parole. Layton indicated the drugs were kept 

in a large brown box. (R.R. VII at 16) Stickles 

went up to speak to appellant. (R.R. VII at 11) 

Hydorn went to the stairwell and watched to 

make sure appellant did not run. Stickles 

determined there could be a domestic situation. 

Appellant did not try to run or evade the 

officer. (R.R. VII at 12) Appellant was 

identified as the person on the walkway. 
5

Appellant told the officer there had been a 

verbal argument with Layton and she had 

misplaced her keys and phone. (R.R. VII at 13) 

 Appellant told the officer he leased the 

apartment and was allowed to leave to go work 

out at a gym. Appellant was believed to have 

left the area. (R.R. VII at 14) 

 Layton was upset and scared and wanted to 

verify appellant had left. She further stated 

there had been a verbal argument over the cell 

phone and appellant had interrupted her 911 

emergency call. Stickles went with Layton to 

the apartment. (R.R. VII at 15) Layton believed 

appellant had her cell phone and keys. Layton 

then told the officer appellant had struck her 

because of something on her phone. (R.R. VII at 

16) 

 Stickles asked Layton if she would like 

for him to assist her in looking for her phone 

in the apartment. She said she was on the lease 
6

and had a 60 day notice to vacate the 

apartment. Layton gave the officer verbal 

consent to help her search for her keys and 

phone. While looking for the items, Stickles 

noticed a brown wooden box (R.R. VII at 17) 

Layton had described. It was on the top shelf 

of the open closet. Stickles asked if he could 

look in the box and opened it and found 

baggies, razor blades, digital scales and what 

he believed, based on his experience, to be 

cocaine. (R.R. VII at 18) 

 At about this time, appellant was 

returning to the apartment and Stickles put the 

box back on the shelf in the same spot. The 

officer then spoke to appellant. (R.R. VII at 

19) It was determined the reason appellant 

returned was to get his ear phones. He wanted 

to get them himself from the bedroom and this 

was done. (R.R. VII at 20) Appellant lifted the 

mattress and revealed the phone. (R.R. VII at 
7

21) Appellant was asked to show what items were 

his in the closet and he was vague about what 

was his. There was a safe which appellant 

denied was his, but he could state there was 

nothing in the safe. (R.R. VII at 22) At that 

point, Stickles placed appellant under arrest. 

(R.R. VII at 23) 

 Appellant’s counsel relied upon the 

pleadings in the motion to suppress for the 

basis to suppress the fruits of the search. The 

basis in the motion to suppress for the 

granting of the motion was the Fourth, Fifth, 

Sixth and Fourteenth Amendments to the United 

States Constitution; Art I Sections 9, 10, and 

19 of the Constitution of the State of Texas. 

(Cl. R. at 19) As well as Article 38.23 Tex. 

Crim. Proc. Code. (Cl. R. at 18) 

Upon denying appellant’s motion to 

suppress, the trial court made these findings 

verbally on the record: 
8

 Layton and (appellant) 

apparently both live in the 

apartment. The apartment being 

leased by (R.R. VII at 86) Layton 

and there has been a 911 hang up 

call claiming domestic violence, 

that she detailed information 

regarding interference with 911, 

as well as physical assault, and 

reportedly indicated the 

(appellant) was selling drugs and 

was on parole and might run and 

she was the owner of the apartment 

and given consent to search after 

explaining that the (appellant) 

had taken her keys and her cell 

phone and she gave consent to the 

police officers to help her look 

and search for the keys and cell 

phone. 

The trial court further found 

the closet to which the box 

containing the drugs and 

paraphernalia, scales, baggies was 

found in a closet containing 

clothing belonging to both Brenda 

Layton as well as (appellant) and 

that she had given consent as well 

for the officer to help her search 

for her keys and her cell phone. 

The box was returned to the 

shelf when apparently the recruit 

and (appellant) came back in to 

the apartment but the drugs had 

already been discovered with the 

consent, (appellant) was arrested 

at that point for the interference 

after providing the cell phone 

which was hidden under the 

mattress, was arrested for the 
9

interference with the 911, and 

apparently then the drug 

possession following the 

discovery. 

The trial court found there 

was consent for the search which 

was actually being given to find 

keys and cell phone and certainly 

[sic] was discovered. So the court 

is going to deny the motion to 

suppress. (R.R. VII at 87)

 

SUMMARY OF THE ARGUMENT 

The State failed to prove by clear and 

convincing evidence the co-tenant of appellant 

had common authority to authorize the opening 

of the container attributed to appellant or to 

the seizure of the contents without a warrant. 

ARGUMENT 

STANDARD OF REVIEW 

At a hearing on a motion to suppress 

evidence, the trial court is the sole and 

exclusive trier of fact and the judge of the 

credibility of witness testimony. Review of the 

trial court's ruling on a motion to suppress is 

under a bifurcated standard of review, giving 
10

almost total deference to the trial court's 

determination of historical facts and reviewing 

de novo the court's application of the law. 

(citations omitted) Malone v. State, 163 S.W.3d 

785, 795 (Tex. App. 2005) The Texas Court of 

Criminal Appeals has repeatedly held the State 

to a standard of clear and convincing evidence 

when attempting to show the voluntariness of a 

consent to search. State v. Ibarra, 953 S.W.2d 

242, 243 (Tex. Crim. App. 1997) 

The important issues before the court are: 

Did co-tenant Layton have the authority to 

consent to the opening of the brown box, and 

the seizure of the contents, and has the State 

shown this authority by clear and convincing 

evidence? 

In U.S. v. Matlock, 415 U.S. 164 (1974) 

the United State Supreme Court recognized the 

voluntary consent of a joint occupant to search 

the premises jointly occupied is valid against 
11

the co-occupant, permitting evidence discovered 

in the search to be used against him in the 

criminal trial. Matlock, supra. pp. 169 The 

stated purpose of law enforcement officers in 

seeking permission to search from the Matlock’s 

co-occupant was to look for money and a gun, as 

evidence in a bank robbery prosecution. A sum 

of money was found in a diaper bag in a closet 

jointly used by both parties; the consenting 

party and Matlock. The Supreme Court never 

addressed the issue of did the co-occupant’s 

consent extend to the diaper bag. Since the cooccupant was holding a small child in her arms 

when she gave consent, it might be clear she 

had access and a possessory interest in the 

diaper bag. 

A co-tenant who has an interest in 

bringing criminal activity to light or in 

deflecting suspicion from himself can, e.g., 

tell the police what he knows, for use before a 
12

magistrate in getting a warrant. Georgia v. 

Randolph, 547 U.S. 103, 104, (2006) 

Once Layton, as a named “informant” told 

Stickles about the contents of the brown box; a 

proper search warrant could have been obtained. 

Information from a named informant, and the 

magistrate could find the information recent 

and detailed enough to suggest that the 

informant had direct knowledge sufficient for a 

probable cause determination. Rivas v. State, 

446 S.W.3d 575, 580 (Tex. App. 2014), on remand 

from pdr, reh'g overruled (Oct. 30, 2014) 

As far back as 1970 it was noted state 

courts are not bound by ruling of lower federal 

courts on Federal Constitutional questions, 

both state and federal courts being of parallel 

importance in deciding such questions, and both 

answer to the Supreme Court on direct review. 

United States ex rel. Pruett v. State, 463 

S.W.2d 191, 194 (Tex. Crim. App. 1970) 
13

Decisions of the federal courts of appeals and 

district courts do not bind Texas courts 

although they are received with respectful 

consideration. Denton v. Texas Dep't of Pub. 

Safety Officers Ass'n, 862 S.W.2d 785, 791 

(Tex. App. 1993), writ granted (May 11, 1994), 

aff'd and remanded, 897 S.W.2d 757 (Tex. 1995) 

The United States Court of Appeals for the 

Sixth Circuit decided U.S. v. Taylor, 600 F.3d 

678 (2010) based on very similar facts to the 

case sub judice. There the tenant, Arnett, gave 

permission to search the apartment. While 

conducting this search, a shoebox was opened 

and the contents, a handgun and ammunition, 

were seized by law enforcement officers. Taylor 

was not a co-tenant, but was allowed to store 

items in a spare room by the tenant. The 

shoebox was in a closet along with Taylor’s 

clothing. U.S. Court of Appeals reasoned the 

expectation of privacy in one’s luggage is not 
14

lessened by storing on the premises of a thirdparty. Rather, the expectations may well be at 

their most intense when such effects are 

deposited temporarily or kept semi-permanently 

in places under the general control of another. 

A shoebox is not “luggage” but it is an oftenused storage container. (Taylor, supra. pp. 

682-684) In United States v. Salinas-Cano, 959 

F.2d 861 (10th Cir.1992), the Tenth Circuit 

suppressed the results of a search of luggage 

that Cano had left at his girlfriend's 

apartment, even though she had given the police 

specific consent to search the luggage. 

(Salinas-Cano, 959 F.2d at 862) The Sixth 

Circuit in Taylor noted several factors that 

the Tenth Circuit took into consideration in 

Cano: (1) the type of container and whether 

that type “historically command[ed] a high 

degree of privacy,” (2) whether the container's 

owner took any precautions to protect his 
15

privacy, (3) whether the resident at the 

premises initiated the police involvement, and 

(4) whether the consenting party disclaimed 

ownership of the container. Id. at 864. 

Applying these factors the search of the 

suitcase unlawful because it was a type of 

container long associated with privacy 

expectations, Cano had ... never permitted his 

girlfriend to look inside the suitcase, he had 

not abandoned the suitcase but instead 

maintained a periodic presence in the 

apartment, and the law enforcement agents had 

not questioned his girlfriend in a manner 

sufficient to determine whether she had mutual 

use of the Cano's suitcase. 

 Appellant will concede Layton had the 

authority to admit the police officers to the 

apartment and to conduct a search for her phone 

and keys; but there is nothing in the record of 

the hearing on appellant’s motion to suppress 
16

to show Layton had mutual use and/or authority 

to allow the officers to open the brown box, 

much less consent to the seizure the contents 

without a warrant. 

 The Supreme Court of the United States 

noted that their prior recognition of the 

constitutional validity of ‘third party 

consent’ searches in cases like Frazier v. 

Cupp, 394 U.S. 731, 740, (1969) and Coolidge v. 

New Hampshire, 403 U.S. 443, (1971), supported 

the view that a consent search is fundamentally 

different in nature from the waiver of a trial 

right. These cases at least make clear that 

when the prosecution seeks to justify a 

warrantless search by proof of voluntary 

consent, it is not limited to proof that 

consent was given by the defendant, but may 

show that permission to search was obtained 

from a third party who possessed common 

authority over or other sufficient relationship 
17

to the premises or effects sought to be 

inspected. United States v. Matlock, 415 U.S. 

164, 171-72, (1974) 

 While Layton may have possessed common 

authority over the premises, there is no 

showing in this record that she had common 

authority over the brown box to consent to the 

search and seizure of the brown box, a closed 

container. While the officers, based on the 

information from Layton, may have had ample 

authority to obtain a search warrant by acting 

on that information from Layton, they did not. 

 Because the State has failed to show by 

clear and convincing evidence the authority for 

Layton to consent to the opening and, 

ultimately, the seizure of the brown box and 

its contents; appellant’s motion to suppress 

should have been granted. The trial court erred 

in failing to do so. 
18

PRAYER 

Wherefore, premises considered, appellant 

prays the Court of Appeals reverse the trial 

court’s denial of his motion to suppress and 

remand this case to the trial court and for any 

other relief to which appellant may be 

entitled. 

 

Respectfully submitted, 

 

/s/ James H. Kreimeyer 

 James H. Kreimeyer 

 Counsel for Appellant 

 P.O. Box 727 

 Belton, TX 76513 

 254-939-9393 Fax:939-2870 

 TSB#11722000 

 jkreime@vvm.com 
19

CERTIFICATE OF COMPLIANCE 

I hereby certify that this brief complies with 

the length limitations of Texas Rule of Appellate 

Procedure 9.4(i)(3) because this brief contains 

2,266 words, excluding the parts of the brief 

exempted by Texas Rule of Appellate Procedure 

9.4(i)(1); a number which is less than the 15,000 

words allowed under Rule 9.4(i)(2)(B). 

I also certify that this brief complies with 

the typeface requirements of Texas Rule of 

Appellate Procedure 9.4(e) because this brief has 

been written with a conventional typeface using a 

14-point font (with footnotes no smaller than 12-

points) using Microsoft Office Word 2010 (version 

14), in Courier New font. 

/s/ James H. Kreimeyer 

JAMES H. KREIMEYER
20

CERTIFICATE OF SERVICE TO OPPOSING COUNSEL 

 This is to certify a true copy of the foregoing 

Appellant’s Brief was furnished to Bob Odom 

Assistant District Attorney for Bell County, P.O. 

Box 540, Belton, Texas 76513 on the 24th day of 

August, 2015. 

 

/s/ James H. Kreimeyer 

 JAMES H. KREIMEYER 

CERTIFICATE OF SERVICE TO APPELLANT 

 This is to certify a true copy of the brief, 

served to Appellant, Kevin Duane Drisdale, James 

Bradshaw State Jail, P.O. Box 9000, Henderson, TX 

75653 on the 24th day of August, 2015. 

 /s/ James H. Kreimeyer 

 JAMES H. KREIMEYER