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No. 07-15-00039-CR

COURT OF APPEALS 

SEVENTH DISTRICT 

FOR THE STATE OF TEXAS 

 

JOSEPH LEWIS GONZALES, 

 APPELLANT, 

THE STATE OF TEXAS, 

 APPELLEE. 

Appealed from the 181st District Court of 

Potter County, Texas 

Cause No. 68,522-B 

 

APPELLANT’S BRIEF

Steven M. Denny 

SBN: 24005798 

2414 Line Ave. 

Amarillo, Texas 79106 

(806) 379-2010 

Fax:(806)379-2012 

 lawyerdenny@aol.com 

Attorney for Appellant, 

Joseph Gonzales 

ORAL ARGUMENT REQUESTED

ACCEPTED

07-15-00039-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

7/27/2015 10:16:01 AM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 7/27/2015 10:16:01 AM VIVIAN LONG CLERK
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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL............................................................................................ 3

INDEX OF AUTHORITIES ..................................................................................................................... 4

STATEMENT OF THE CASE.................................................................................................................. 7

STATEMENT OF FACTS ........................................................................................................................ 8

SUMMARY OF THE ARGUMENT ......................................................................................................10

POINT OF ERROR.................................................................................................................................11

THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT A CONSENSUAL 

ENCOUNTER BECAUSE IT DID NOT OCCUR IN A PUBLIC PLACE

CONCLUSION AND PRAYER ..............................................................................................................18

CERTIFICATE OF SERVICE.................................................................................................................18

CERTIFICATE OF COMPLIANCE.......................................................................................................19
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IDENTITY OF PARTIES AND COUNSEL

In order that the members of the Court may determine disqualification in or recusal 

pursuant to T.R.A.P. 74(c), Appellant certifies that the following is a complete list 

of parties:

Judge Presiding: Honorable John Board

181st District Court

501 S. Fillmore

Ste. 3b

Amarillo, Texas 79101

Appellant: Joseph Lewis Gonzales TDCJ # 01976373

JB Wheeler State Jail

986 County Rd. AA

Plainview, TX 79072

Attorney for Appellant Lynda Smith

At Trial: 3611 Soncy

Amarillo, TX 79119

Attorney for Appellant Steven M. Denny

On Appeal: 2414 Line Ave.

Amarillo, Texas 79106

Attorney for State Chuck Slaughter

At Trial: Assistant District Attorney

501 S. Fillmore 

Ste. 5a

Amarillo, Texas 79101

Attorney for State Randall Sims

on Appeal: 47th District Attorney

501 S. Fillmore 

Ste. 5a

Amarillo, Texas 79101
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INDEX OF AUTHORITIES

Cases

Amorella v. State, 554 S.W.2d 700, (Tex.Crim.App.1977).....................................16

Arguellez v. State, 409 S.W.3d 657, (Tex. Crim. App. 2013) .................................10

Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007))....11

California v. Hodari D., 499 U.S. 621, (1991).........................................................12

Crain v. State, 315 S.W.3d 43, (Tex. Crim. App. 2010)..........................................10

Derichsweiler v. State, 348 S.W.3d 906, (Tex.Crim.App.2011)..............................13

Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ...........11

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)(plurality 

op.)............................................................................................................11, 12, 14

Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) .....................11

Green v. State, 256 S.W.3d 456, (Tex.App.-Waco 2008, no pet.)...........................16

Gurrola v. State, 877 S.W.2d 300, (Tex.Crim.App.1994) .......................................16

Hudson v. State, 247 S.W.3d 780, (Tex.App.-Amarillo 2008, no pet.)...................16

LeBlanc v. State, 138 S.W.3d 603, (Tex. App.-Houston [14th Dist.] 2004, no pet.)

..............................................................................................................................16

Morris v. State, 739 S.W.2d 63, (Tex.Crim.App.1987)...........................................12

Shaffer v. State, 562 S.W.2d 853, (Tex.Crim.App.1978)........................................16

Sieffert v. State, 290 S.W.3d 478, (Tex.App.-Amarillo 2009, no pet.) ...................16

State v. Castleberry, 332 S.W.3d 460, (Tex.Crim.App.2011)..................................12

State v. Woodard, 341 S.W.3d 404, (Tex. Crim. App. 2011)............................10, 11

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ....................11, 13

United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 

(1975)..............................................................................................................13, 15

United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)

..............................................................................................................................12

United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) .......13

Valtierra v. State, 310 S.W.3d 442, (Tex. Crim. App. 2010)...................................10

Viveros v. State, 828 S.W.2d 2, (Tex.Crim.App. 1992) ..........................................16

Wade v. State, 422 S.W.3d 661, (Tex. Crim. App. 2013)........................................10

Statutes

Tex. Code Crim. Pro. §18.01 ...............................................................................7, 16

Tex. Code Crim. Pro. §38.22 ...............................................................................7, 16

Tex. Code Crim. Pro. §38.23 ...............................................................................7, 16
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Constitutions

Texas Constitution Article 1, §9...........................................................................7, 16

U.S. Const. amend V............................................................................................7, 16

U.S. Const. amend VI...........................................................................................7, 16

U.S. Const. amend XIV........................................................................................7, 16

U.S. Const. amend. IV..........................................................................................7, 16
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JOSEPH LEWIS GONZALES § IN THE SEVENTH DISTRICT OF TEXAS

§

VS. § OF

§

THE STATE OF TEXAS § AMARILLO, TEXAS

No. 07-15-00039-CR

JOSEPH LEWIS GONZALES,

Appellant,

VS.

THE STATE OF TEXAS,

Appellee.

 

APPELLANT’S BRIEF

 

TO THE COURT OF APPEALS:

Appellant, JOSEPH LEWIS GONZALES, respectfully submits this brief. Mr. 

Gonzales will be referred to as Appellant and the State of Texas will be referred to as 

State.
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STATEMENT OF THE CASE

Appellant challenged the search, seizure, and arrest in the cause by pre-trial 

motion CR 1-591heard by the Court on January 12, 2015 RR 2-6.52The Court found 

that the encounter between appellant and the government was a consentual encounter. 

RR 2-185.8 The court overruled appellant’s motion. RR 2-185.19 Afterwards, 

appellant plead guilty to Possession of a Controlled Substance on January 12, 2015 in 

the 181st District Court in Potter County RR 2-188.5 and was sentenced by the court to 

15 years in The Texas Department Of Criminal Justice Institutional Division. RR 2-

192.22 A notice of appeal was timely filed on January 21, 2015. CR 1-88

 

1 The Clerk’s record consists of 2 volumes and will be referred to as [CR volume #-page #]

2 The Reportrer’s record consists of 3 volumes and will be referred to as [RR volume # - page # . line #]
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STATEMENT OF FACTS

Appellant, Joseph Gonzales, was charged with the offense of Possession of a 

Controlled Substance alleged to have occurred on or about January 27, 2014. (CR 1-

20) Appellant challenged the search that was the basis of his arrest on the Fourth, 

Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 

1, §9 of the Texas Constitution, and Articles 18.01, 38.22 and 38.23 of the Texas Code 

of Criminal Procedure. CR 1-59 Amarillo Police Officer Tollerson testified that he saw 

appellant commit a traffic violation of “failed to signal intent pulling into the private 

parking lot.” RR 2-10.12 He testified that it was 2:00 a.m. RR 2-11.3 and that he had 

seen the violation from several “short blocks” RR 2-11.18 away by observing appellant 

in the rearview and sideview mirrors RR 2-11.21from the passenger seat of the patrol 

car. RR 2-11.5 When Officers Slover and Tollerson reached the private driveway 

behind the building, RR 2-12.5 appellant had already exited his vehicle, they made 

contact with appellant, and they obtained his identification.RR 2-12.7 Officer 

Tollerson then re-approached appellant for the purpose of “speak[ing] with him 

regarding the traffic violation.” RR 2-12.21 Officer Tollerson then asked appellant if 

he had any weapons RR 2-13.23 to which appellant replied that he had a pocketknife 

and began to retrieve it for the officer. RR 2-14.17 During the search, the officers 
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found the knife RR 2-17.13 and a small tobacco can which they later pried open. RR 2-

16.12 Appellant testified that he consented to a patdown for weapons after he told the 

officers he had a knife in his pocket. RR 2-152.1 The State introduced a video of 

appellant’s “consent” for a search of his person for contraband via a video taken “30 

minutes to an hour” after the initial stop. RR 2-151.7 Appellant testified that he had 

driven “right past the front entrance to that building where there’s a driveway and a 

parking lot, circled completely around this building and then drove all the way to the 

back.” RR 2-156.16 The Court found that there “wasn’t a traffic stop”, RR 2-181.22

but instead an “encounter with consensual search” RR 2-185.9 and overruled the 

motion. RR 2-185.19
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SUMMARY OF THE ARGUMENT

THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT A CONSENSUAL 

ENCOUNTER BECAUSE IT DID NOT OCCUR IN A PUBLIC PLACE

The ends don’t justify the means, even when the result is locking up a 

habitual felon like Joseph Gonzales for fifteen more years. In this case, the Court 

found the officer’s testimony that they were attempting to enforce the traffic laws 

on January 27, 2014 at 2:00 a.m. not credible. In an attempt to salvage the case, the 

State argued that it instead was a consensual encounter despite occurring on private 

property with lights and spotlights pointed at an appellant who did not feel free to 

leave lest he be arrested for evading arrest. The officers alleged that the area was a 

drug distribution point in their report, but disavowed any suspicion that appellant 

was participating in narcotics activity. They failed to articulate any suspicion, be it 

reasonable or unreasonable, to detain appellant. As such, all evidence seized as a 

result of such detention and search should be held inadmissible.
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POINT OF ERROR

THE CONTACT BETWEEN APPELLANT AND POLICE WAS NOT 

A CONSENSUAL ENCOUNTER BECAUSE IT DID NOT OCCUR IN 

A PUBLIC PLACE

Standard of Review

A trial court's ruling on a suppression motion is reviewed on appeal for abuse of 

discretion, with almost complete deference being given to its determination of 

historical facts, especially if those are based on an assessment of credibility and 

demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013); Crain v. 

State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Regardless of whether the trial court 

granted or denied the motion, appellate courts view the evidence in the light most 

favorable to the ruling. Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim. App. 2013); 

State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). Appellate courts

review de novo a trial court's application of the law of search and seizure to the facts. 

Wade, 422 S.W.3d at 667; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 

2010). 

Relevant Caselaw
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There are three distinct types of police-citizen interactions: (1) consensual 

encounters that do not implicate the Fourth Amendment; (2) investigative detentions 

that are Fourth Amendment seizures of limited scope and duration that must be 

supported by a reasonable suspicion of criminal activity; and (3) arrests, the most 

intrusive of Fourth Amendment seizures, that are reasonable only if supported by 

probable cause. Woodard, 341 S.W.3d at 410-11 (citing Florida v. Bostick, 501 U.S. 

429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Terry v. Ohio, 392 U.S. 1, 30-31, 

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 

S.Ct. 854, 43 L.Ed.2d 54 (1975)). Police officers are as free as any other citizen to 

approach citizens in a public place to ask for information or cooperation. Such 

consensual encounters may be uncomfortable for a citizen, but they are not Fourth 

Amendment seizures: 

[L]aw enforcement officers do not violate the Fourth Amendment by merely 

approaching an individual on the street or in another public place, by asking 

him if he is willing to answer some questions, by putting questions to him if the 

person is willing to listen, or by offering in evidence in a criminal prosecution 

his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491 at 497 

to 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)(plurality op.) (citations 

omitted)(emphasis added).

No bright-line rule governs when a consensual encounter becomes a detention. 

Woodard, 341 S.W.3d at 412 (citing Brendlin v. California, 551 U.S. 249, 255, 127 

S.Ct. 2400, 168 L.Ed.2d 132 (2007)). Courts must take into account the totality of the 
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circumstances of the interaction to decide whether a reasonable person would have felt 

free to ignore the police officer's request or terminate the consensual encounter. State 

v. Castleberry, 332 S.W.3d 460, 467 (Tex.Crim.App.2011). This is known as the

Mendenhall test. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 

(1983) (relying on Mendenhall to conclude that the circumstances — "a show of 

official authority such that a reasonable person would have believed that he was not 

free to leave" — indicated a Fourth Amendment seizure); United States v. Mendenhall, 

446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ("a person has been seized 

within the meaning of the Fourth Amendment only if, in view of all of the 

circumstances surrounding the incident, a reasonable person would have believed he 

was not free to leave."); Morris v. State, 739 S.W.2d 63, 66 (Tex.Crim.App.1987)

("Mendenhall and Royer indicate the circumstances of a case must be examined in 

order to decide if a defendant would have reasonably believed that he was not free to 

leave.").

If ignoring the request or terminating the encounter is an option, then no Fourth 

Amendment seizure has occurred. Castleberry, 332 S.W.3d 460, 467 (Tex. 

Crim.App.2011). But — as the Supreme Court made clear in California v. Hodari D., 

499 U.S. 621, 627-28 (1991); Castleberry, 332 S.W.3d at 466-67. — if an officer 
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through force or a show of authority succeeds in restraining a citizen in his liberty, the 

encounter is no longer consensual; it is a Fourth Amendment detention or arrest, 

subject to Fourth Amendment scrutiny.

If the encounter is not consensual or escalates from a consensual to a nonconsensual encounter, an officer must have a reasonable suspicion of criminal activity 

to detain or seize an individual for questioning. United States v. Brignoni-Ponce, 422 

U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). A police officer has 

reasonable suspicion for a detention if he has specific, articulable facts that, when 

combined with rational inferences from those facts, would lead him to reasonably 

conclude that the person detained is, has been, or soon will be engaged in criminal 

activity. This is an objective standard that disregards the actual subjective intent of the 

arresting officer and looks, instead, to whether there was an objectively justifiable 

basis for the detention. Derichsweiler v. State, 348 S.W.3d 906, 914 

(Tex.Crim.App.2011) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 

104 L.Ed.2d 1 (1989); Terry, 392 U.S. at 21-22, 88 S.Ct. 1868).

Argument

The trial court ruled that the encounter between appellant and officers on 
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January 27, 2014 was a consensual encounter rather than a traffic stop. RR 2-185.9 

The record, however, is silent on an essential element of a consensual encounter- that it 

take place in a public place as required in Florida v. Royer, 460 U.S. 491 at 497.

Officer Tollerson’s testimony at the hearing was that the encounter was in a “private 

parking lot” RR 2-10.9, “private parking lot” RR 2-10.13, “private parking lot” RR 2-

26.13, and “private drive” RR 2-71.12 Amarillo Police Officer Camarillo testified that 

the encounter was on “private property.” RR 2-105.18 Appellant also testified that it 

was “private property.” RR 2-138.16 Since the encounter did not take place in a 

“public place,” it was not a consensual encounter.

Even if the encounter had taken place in a public place, a reasonable person in 

appellant’s position would not have felt free to leave. When we apply the Mendenhall 

test to determine whether there was "a show of official authority such that a reasonable 

person would have believed that he was not free to leave," we must look to Officer 

Caramillo’s testimony that Officer Tollerson’s red and blue lights were on RR 2-

110.22, Officer Tollerson’s testimony that the patrol car’s spotlight was on and pointed 

towards appellant RR 2-78.14, and appellant’s testimony that he felt that he was not 

free to leave or he would have been charged with “evading arrest,” RR 2-129.4 
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Officer Tollerson attempted to explain that once appellant was detained in the 

traffic stop, he continued to be detained after they found the substance in the following 

exchange:

Q. [by the State’s Attorney] Is that after he was taken into custody after you 

found the substance? Was he let me rephrase. Did you detain him after 

you found the substance?

A. [by officer Tollerson] A person is detained once a traffic --

Q. Just did you detain him?

A. He was continued to be --

Q. All right.

A. detained, yes.

Q. And at that point was he free to leave?

A. No. RR 2-18.12 to 22 (emphasis added)

The most dispositive testimony that there was in fact a detention is in this exchange: 

Q. [by the state’s attorney] So you didn’t detain him at all, did you?

A. [by officer Tollerson] We did. RR 2-60.23 to 24

Since appellant was in fact detained as the facts and testimony above prove, the 

officers would need to articulate reasonable suspicion for such detention. United States 

v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The 

record from the hearing itself proves that the officers did not have reasonable suspicion 

of a criminal offense- other than the traffic violation which the court held was not the 

reason for the stop- in the following exchange:

Q. [by Appellant’s trial counsel] And the fact that he pulled into that parking 

lot made him a suspect for your narcotics investigation, didn’t it?

A. [by Officer Tollerson] No, ma’am.
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During the hearing, the area was described as a “drug distribution point,” RR2-

55.8, “high crime rate, high drug area,” RR 2-131.8 RR 2-141.19. Such an allegation 

does not itself arise to a reasonable suspicion:

Although the time of day and the level of criminal activity in an area may be 

factors to consider in determining reasonable suspicion, they are not suspicious 

in and of themselves; Hudson v. State, 247 S.W.3d 780, 786-87 (Tex.App.-

Amarillo 2008, no pet.); Green v. State, 256 S.W.3d 456, 462 (Tex.App.-Waco 

2008, no pet.), and that detainees were seen or found in a high crime area alone 

does not warrant reasonable suspicion. Gurrola v. State, 877 S.W.2d 300, 303 

(Tex.Crim.App.1994); Amorella v. State, 554 S.W.2d 700, 701 

(Tex.Crim.App.1977). Neither does driving slower than the posted speed; 

Viveros v. State, 828 S.W.2d 2, 3 (Tex.Crim.App. 1992); Shaffer v. State, 562 

S.W.2d 853, 854-55 (Tex.Crim.App.1978), nor nervousness; Green, 256 

S.W.3d at 462; LeBlanc v. State, 138 S.W.3d 603, 608 n. 6 (Tex. App.-Houston 

[14th Dist.] 2004, no pet.), by themselves, warrant reasonable suspicion. Sieffert 

v. State, 290 S.W.3d 478, 485 (Tex.App.-Amarillo 2009, no pet.).

Since the court ruled that the encounter was not a traffic stop, RR 2-181.22 and 

since the Officers did not offer any reasonable suspicion that a crime was taking place, 

and since the officers denied that appellant was a suspect in a narcotics investigation, 

the Officers did not have a reasonable suspicion to detain appellant. Without 

reasonable suspicion, the detention was a violation of appellant’s right to be free from 

unreasonable searches under the Fourth, Fifth, Sixth and Fourteenth Amendments to 

the United States Constitution and Article 1, §9 of the Texas Constitution, and Articles 
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18.01, 38.22 and 38.23 of the Texas Code of Criminal Procedure, and all evidence 

obtained as a result of that unlawful detention, search, and seizure should be 

suppressed.

CONCLUSION AND PRAYER

For the above and forgoing reasons, Appellant respectfully prays that upon 

appellate review, the Court of Appeals find that the detention, search, and seizure of 

appellant was unlawful and in violation of his right to be free from unreasonable 

searches, hold the fruits of that search inadmissible, and remand this cause to the trial 

court for further proceedings.

Respectfully Submitted, 

 /s/denny 

STEVEN M. DENNY

ATTORNEY AT LAW

2414 Line Ave.

AMARILLO, TEXAS 79106

(806) 379-2010

SBN: 24005798

lawyerdenny@aol.com

CERTIFICATE OF SERVICE

I, Steven M. Denny, attorney for the Appellant, certify that a true and correct 
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copy of the foregoing brief has been provided to the Potter County Attorney on this the 

 27 day of July , 20__15__.

 /s/denny 

STEVEN M. DENNY

CERTIFICATE OF COMPLIANCE

I, Steven M. Denny, attorney for the Appellant, certify that this brief 

complies with T.R.A.P. 9.4 and contains 1,898 words as calculated by Microsoft 

Word in the included content as described in T.R.A.P 9.4(1) on this the 27 day 

of July , 20_15_.

 /S/denny 

STEVEN M. DENNY