NO. 01-15-00053-CR

NO. 01-15-00054-CR

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

DAMIAN SCOTT

Appellant 

v. 

THE STATE OF TEXAS

Appellee 

On Appeal from Cause Numbers 1410122 & 1410123 

From the 174th District Court of Harris County, Texas 

BRIEF FOR APPELLANT

ORAL ARGUMENT REQUESTED ALEXANDER BUNIN

 Chief Public Defender 

Harris County, Texas 

 MELISSA MARTIN

 Assistant Public Defender 

 Harris County, Texas 

TBN. 24002532 

1201 Franklin, 13th floor 

Houston, Texas 77002 

Phone: (713) 368-0016 

Fax: (713) 437-4319 

 

Counsel for Appellant 

ACCEPTED

01-15-00054-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/16/2015 9:56:59 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/16/2015 9:56:59 AM CHRISTOPHER A. PRINE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Damian Scott 

SPN# 01891026

701 N San Jacinto St

Houston, TX 77002

TRIAL PROSECUTORS: Gretchen Flader

Assistant District Attorney

 Harris County, Texas

 1201 Franklin Avenue, 6th Fl

Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Paul St. John 

Attorney at Law

111 W 15th St

Houston, Texas 77008

PRESIDING JUDGE: Hon. Ruben Guerrero

 174th District Court 

Harris County, Texas

1201 Franklin Avenue, 19th Fl

Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin

 Assistant Public Defender

 Harris County, Texas

 1201 Franklin Avenue, 13th floor

Houston, Texas 77002
iii

TABLE OF CONTENTS

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

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

INDEX OF AUTHORITIES ........................................................................................................ v

STATEMENT OF THE CASE...................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................ 1

ISSUE PRESENTED................................................................................................................... 2

Defense counsel at trial was ineffective because he failed to attempt 

to suppress Mr. Scott’s alleged response to officer’s question as to whether 

he had a crack pipe in his pocket. The record demonstrates:

(a) appellant was in custody at the time the officer allegedly the 

question and the Fourth Amendment required he be apprised of 

his rights under Miranda v. Arizona, 384 U.S. 436 (1966) prior to 

being interrogated and;

(b) the alleged statement was obtained during a custodial 

interrogation and required appellant be apprised of his rights as 

enumerated in Art. 38.22(a) §3 prior to questioning. Tex. Code 

Crim. Proc., Art. 38.22(a) §3.

But for the alleged statement the officers would have had no 

authority to arrest appellant and would not have found either the crack 

pipe or the pistol. Tex. Code Crim. Proc. Art. 14.3(6) and the motion to 

suppress would either have been granted or error preserved.

SUMMARY OF THE ARGUMENT .............................................................................................. 3

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

A. STANDARD OF REVIEW............................................................................................... 4

1. INEFFECTIVE ASSISTANCE OF COUNSEL............................................................. 4
iv

2. MOTIONS TO SUPPRESS......................................................................................... 5

3. APPLICABLE FOURTH AMENDMENT AND STATUTORY LAW............................. 6

(A). TRAFFIC STOPS ................................................................................................ 7

(B). PEACE OFFICERS’ AUTHORITY TO MAKE A WARRANTLESS ARREST............ 8

B. APPLICATION ............................................................................................................... 9

1. THE TRAFFIC STOP WAS AN INVESTIGATIVE DETENTION ................................. 9

2. THE QUESTION BEGAN A CUSTODIAL INTERROGATION ................................. 11

3. ART. 14.3 (A)(6) DID NOT AUTHORIZE MR. SCOTT’S WARRANTLESS ARREST 12

C. INEFFECTIVE ASSISTANCE OF COUNSEL ................................................................ 13

1. DEFICIENT PERFORMANCE................................................................................ 13

2. PREJUDICE............................................................................................................ 14

PRAYER .................................................................................................................................. 15

CERTIFICATE OF SERVICE .................................................................................................... 15

CERTIFICATE OF COMPLIANCE............................................................................................ 16
v

INDEX OF AUTHORITIES

Cases

Andrews v. State, 159 S.W. 3d 98 (citations omitted)........................................................... 5

Berkemer v. McCarty, 468 U.S. 420(1984)............................................................................... 7

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002).......................................................... 5

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) .................................................... 7, 9

Davis v. State, 947 S.W. 2d. 240 (Tex. Crim. App. 1997).................................................... 7

Dowthitt v.State, 931 S.W.2d 244 (Tex. Crim. App. 1996)................................................. 12

Francis v. State, 896 S.W. 2d, 408 (Tex.App.—Houston [1st Dist.] 1995)......................... 7

Johnson v. State, 414 S.W.3d 184 (Tex. Crim. App. 2013) ..........................................passim

Kothe v. State, 152 S.W.3d at 63.......................................................................................... 6, 7

Miranda v. Arizona, 384 U.S. 436 (1966)......................................................................passim

Ohio v. Robinette, 519 U.S.33, 39 (1996)................................................................................. 7

Ortiz v. State, 382 S.W.3d 367, 371 (Tex. Crim. App. 2012) ..................................7, 12, 13

Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)*per curiam)............................................... 7

State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011)...................................... 8

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) ................................. 6

State v. Kerwick, 393 S.W. 3d 270, 273 (Tex. Crim. App. 2013) .............................6, 10, 14

Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879 (1968).................................................... 7
vi

Statutes

Tex. Code Crim. Proc. Art. 14.3(6)...................................................................................... 3

Tex. Code Crim. Proc. Art. 14.3(a)(6)............................................................................8, 12

Tex. Code Crim. Proc. Art. 38.22 §2(a) (1)-(5)................................................................... 8

Tex. Code Crim. Proc. Art. 38.22 §2(b)............................................................................... 8

Tex. Code Crim. Proc. Art. 38.22 § 3 ........................................................................3, 4, 13

Tex. Code Crim. Proc. Art. 38.22 §3(a).........................................................................3, 12

Tex. Code Crim. Proc. Art. 38.22 §3(a) (1)-(5)................................................................... 8

Constitutional Provisions

Tex. Const. Art.1, §9 ............................................................................................................ 11

U.S. Const. Amend. IV............................................................................................3, 6, 7, 11

U.S. Const. Amend. V.......................................................................................................... 11
1

Statement of the Case

Damian Scott, appellant, was charged by indictment with two offenses: felon in 

possession of a weapon, Cause No. 01-15-00053-CR, and evading arrest and detention, 

Cause Number 01-14-00054. On December 2, 2014 the trial court denied appellant’s 

Motion to Suppress the detention, arrest, and fruits of illegal search and, during the 

ensuing bench trial, appellant pleaded guilty. The trial court sentenced him to serve six 

years on the felon-in-possession charge and four years on the evading arrest and 

detention charge in the Institutional Division of the Texas Department of Criminal 

Justice; the sentences to be served concurrently. There was no motion for new trial.

Statement of Facts

On December 1, 2013 Houston Police Department (HPD) Officers Brewster 

and Rothberg stopped Mr. Scott, who was riding his bicycle down Scott Street late at 

night, for traffic violations (2 R.R. at 22-23). The alleged violations were having no 

headlight on the bicycle, swerving “back and forth in the lanes,” and failing to signal a 

turn (2 R.R. at 21-22).

Brewster testified the stop involved pulling up in the fully marked patrol car 

“with our lights and strobes and everything,” shining the spotlight at him, and telling 

him to “stop riding his bicycle, at which point he did” (2 R.R. at 23).

Mr. Scott testified at the motion to suppress that, prior to arresting him, the 

officers asked him for consent to search him, he refused, and they searched him anyway 

(2 R.R. at 11). The search, if it occurred, yielded a crack pipe and a pistol (2 R.R. at 11).
2

Officers Brewster and Rothberg, on the other hand, testified that they asked Mr. 

Scott to identify himself and told him why they had stopped him (2 R.R. at 23). After 

that, Brewster told the trial court the following:

And, as usual, what I always do is I ask people if they have anything 

illegal on them, primarily any kind of narcotics or any kind of 

weapons. At which point, the defendant advised me and my partner 

he had a crack pipe on him, which is illegal.

Q. Did he say the word crack pipe or did he use any kind of different 

lingo?

A. He – I believe I asked him if he had a crack pipe on him and he 

said: Yes, I have a crack pipe on me.

Q. Okay. Did he tell you where it was?

A. He said it was in his jacket pocket in the front.

Q. After he told you that, did you have probable cause to search him?

A. Yes.

(2 R.R. at 24).

The officers testified that they discovered the gun as they were cuffing appellant’s 

hands behind his back (2 R.R. at 23). When the officers retrieved the pistol, appellant 

ran off (2 R.R. at 16). At no point in the record does it appear that Mr. Scott was 

apprised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

Issue Presented

One: Defense counsel at trial was ineffective because he failed to attempt 

to suppress Mr. Scott’s alleged response to officer’s question as to whether

he had a crack pipe in his pocket. The record demonstrates:
3

(a) appellant was in custody at the time the officer allegedly the 

question and the Fourth Amendment required he be apprised of 

his rights under Miranda v. Arizona, 384 U.S. 436 (1966) prior to 

being interrogated and;

(b) the alleged statement was obtained during a custodial 

interrogation and required appellant be apprised of his rights as 

enumerated in Art. 38.22(a) §3 prior to questioning. Tex. Code 

Crim. Proc., Art. 38.22(a) §3.

But for the alleged statement the officers would have had no 

authority to arrest appellant and would not have found either the crack 

pipe or the pistol. Tex. Code Crim. Proc. Art. 14.3(6) and the motion to 

suppress would either have been granted or error preserved.

Summary of Argument

The officers’ show of authority, in addition to Brewster’s asking appellant if he 

“had a crack pipe on him,” constituted an investigative detention requiring the officers 

apprise him of his rights under the Fourth Amendment prior to questioning him. Johnson 

v. State, 414 S.W.3d 184(2013).

Article 14.3(6) authorizes peace officers to arrest, without a warrant, a person 

who makes a statement to the officer that would be admissible under art. 38.22 and 

establishes probable cause to believe the person has committed a felony. Tex. Code 

Crim. Proc. Art. 14.3(6). Article 38.22, Section (3) prohibits the admission of oral 

custodial statements unless the person has been given the warnings required by the 

Fifth Amendment. Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code Crim. Proc. Art. 

38.22 § 3.
4

Mr. Scott was in custody when the officer asked him the question eliciting the 

incriminating answer; no reasonable person would have felt free to leave under the 

circumstances of the stop. See Johnson v. State, 414 S.W.3d 184 (Tex. Crim. App. 2013). 

The arrest was illegal because the record indicates no evidence that Mr. Scott was 

apprised of his rights prior to being interrogated or that the statement was recorded. 

Tex. Code Crim. Proc. Art. 38.22, § 3).

Failure to attempt to suppress the statement was deficient on its face and 

undermines confidence in the outcome of the proceeding. Strickland v. Washington, 466 

U.S. 668 (1984)

Argument

A. Standard of Review

1. Ineffective Assistance of Counsel

The Court of Criminal Appeals in Hernandez v. State, 726 S.W. 2d 53 (Tex. App. 

1986), adopted the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 

694 (1984) to determine whether counsel has been constitutionally ineffective. To have 

a conviction reversed on the grounds of ineffective assistance of counsel an appellant 

must show that (1) counsel’s representation fell below an objective standard of 

reasonableness and (2) the deficient performance prejudiced the appellant. Strickland, 

466 U.S. at 687.

Appellate courts’ review of counsel’s performance must be highly deferential. Id. 

“There is a strong presumption that counsel’s conduct falls within a wide range of 
5

reasonable professional assistance, and the defendant must overcome the presumption. 

We determine the reasonableness of counsel’s challenged conduct in context, and view 

it as of the time of counsel’s conduct.” Andrews v. State, 159 S.W. 3d 98, 101 (Tex. Crim. 

App. 2005)(citations omitted).

The record on appeal is in almost all cases inadequate to show that counsel’s 

conduct fell below and objectively reasonable standard of performance and that the 

better course is to pursue the claim in habeas proceedings. Bone v. State, 77 S.W.3d 828, 

833 (Tex. Crim. App. 2002). But when no reasonable trial strategy could justify counsel’s 

conduct, counsel’s conduct falls below an objective standard of reasonableness as a 

matter of law, regardless of whether the record adequately reflects the trial counsel’s 

subjective reasons for acting as she did. Strickland, supra, at 690.

We do not require that the appellant show that there would have been a 

different result if counsel’s performance had not been deficient. The 

defendant must show only that “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005), citing Strickland, supra, at 

694.

2. Motions to Suppress

Appellate courts review a trial court’s ruling on a motions to suppress in the light 

most favorable to the ruling. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 

2013). When the trial court makes no explicit findings of fact, as in the instant case, the 
6

appellate court infers the necessary factual findings that support the trial court’s ruling 

if the record evidence, viewed in the light most favorable to the ruling, supports these 

implied fact findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

Motions to suppress are reviewed pursuant to a bifurcated standard under which 

the “[t]he trial judge’s determinations of historical facts and mixed questions of law and 

fact that rely on credibility are granted almost total deference when supported by the 

record. But when mixed questions of law and fact do not depend on credibility and 

demeanor, we review the trial court’s ruling de novo.” State v. Kerwick, 393 S.W. 3d 270, 

273 (Tex. Crim. App. 2013).

On appeal, the question of whether a specific search or seizure is 

“reasonable” under the Fourth Amendment is subject to de novo review.23

Despite its fact-sensitive analysis, “reasonableness” is ultimately a 

question of substantive Fourth Amendment law.24 It is true that, in 

assessing this legal issue, courts give great deference to the trial court's 

findings of historical fact.25 However, questions involving legal principles 

and the application of law to established *63 facts are properly reviewed 

de novo.26 Thus, in deciding whether [petitioner]’s [seizure] was 

“reasonable” under the specific circumstances, we view the trial court's 

factual findings in the light most favorable to his ruling, but we decide the 

issue of “reasonableness” as a question of Fourth Amendment law under 

Supreme Court precedent.

Kothe, 152 S.W.3d at 62-63.

3. Applicable Fourth Amendment and Statutory Law

The Fourth Amendment protects individuals against unreasonable searches and 

seizures. U.S. Constitution, Am. IV. There are three categories of police-civilian 

contacts: casual encounter, investigative detention, and seizure. Francis v. State, 896 S.W. 
7

2d, 408-409 (Tex.App.—Houston [1st Dist.] 1995); Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 

1868, 1879 (1968).

(a) Traffic stops.

Whether or not a traffic stop is a casual encounter or an investigative detention

under the Fourth Amendment depends on whether the police actions and/or words 

used to initiate the stop would convey to a reasonable person that he is free to walk 

away. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010); Johnson v. State, 414 

S.W.3d at 193. In making the custody determination, the primary question is whether a 

reasonable person would perceive the detention to be a restraint on his movement 

comparable to a formal arrest, given all the objective circumstances. Ortiz v. State, 382 

S.W.3d 367, 371 (Tex. Crim. App. 2012), citing Berkemer v. McCarty, 468 U.S. 420, 

441(1984).

If the stop is or becomes an investigative detention, the length and scope of the 

detention must be reasonable. Davis v. State, 947 S.W. 2d. 240, 243, 245 (Tex. Crim. 

App. 1997). “Reasonableness” under the Fourth Amendment is measured “in objective 

terms by examining the totality of the circumstances” and “eschew[s] bright-line rules, 

instead emphasizing the fact-specific nature of the ... inquiry.” Ohio v. Robinette, 519 

U.S.33, 39 (1996), as cited in Kothe v. State, 152 S.W.3d at 63. It requires a balance 

between the public interest served and the individual’s right to be free from arbitrary 

detentions and intrusions. Id, citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)*per 

curiam).
8

To justify an investigative detention, the police officer must be able to point to 

specific and articulable facts which, taken together, with rational inferences from those 

facts and the officer’s experience and general knowledge, lead him to conclude that the 

person detained actually, is, has been, or soon will be engaged in criminal activity. State 

v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011).

(b) Peace officers’ authority to make a warrantless arrest.

Article 14.3, §(a)6 authorizes the warrantless arrest of “a person who makes a 

statement to the peace officer that would be admissible against the person under Article 

38.21 and establishes probable cause to believe that the person has committed a felony.” 

Tex. Code Crim. Proc. Art. 14.3(a)(6).

Article 38.22 governs statements made by an accused that may or may not be 

used against him. Section 3 prohibits the use of an oral statement made by the defendant 

during a custodial interview unless (1)the statement is recorded; (2) prior to making the 

statement, the accused has been advised of the rights contained in section 2 of the 

article, (3) the recording device was capable of making an accurate recording, the 

operator was competent, and the recording is accurate and has not been altered; (4) all 

voices are identified; and (5) not later than 20 days before the date of the proceeding 

the attorney representing the defendant is provided with a true, complete, and accurate 

copy of all recordings of the defendant made under the article. Tex. Code Crim. Proc., 

Art. 38.22 §2(a)(1)-(5) &(b); §3(a)(1)-(5).
9

B. Application

1. The traffic stop was an investigative detention.

Officer Brewster described the stop as follows:

We stopped him. We pulled up in our police vehicle that’s fully 

marked, says Houston Police on the side with our lights and strobes 

and everything. I was the driver that night, so I had access to the 

spotlight. I lit him up so we could see him. My partner had his 

window rolled down and he verbally told the defendant to stop 

riding his bicycle, at which point he did. And we began speaking to 

him.

(2 R.R. at 23).

Mr. Scott stated “I was pulled over – I stopped, I submitted, and they pulled –

they shined the light on me and went in front of me and cut me off” (2 R.R. at 8). The 

two accounts of the initial part of the stop are consistent with one another.

An investigative detention, which implicates Fourth Amendment protections, 

“occurs when a person yields to the police officer’s show of authority under a 

reasonable belief that he is not free to leave.” Crain, 315 S.W.3d at 49. In Johnson v. 

State, the Court of Criminal Appeals reviewed factors the court of appeals had 

considered in determining whether a detention had occurred, namely:

... that the officer: 1) approached appellant's vehicle, which was backed 

into a parking spot outside the gate of an apartment complex at night with 

its lights on and engine running; 2) parked his police vehicle at an angle 

that at least partially blocked appellant's egress but did not prevent him 

from “maneuvering” around the officer and driving away; 3) shined his 

police vehicle's spotlight inside appellant's car; 4) did not activate his siren 

or emergency lights or use a bullhorn or loudspeaker to communicate with 

appellant; 5) approached appellant's car and asked, “What's going on, what 

are you doing out here?” and requested appellant's identification; and 6) 
10

did not carry a flashlight, draw a weapon, order appellant to put his hands 

up, or otherwise inform appellant that he was being detained. Johnson, 359 

S.W.3d at 733.

Johnson v. State, 414 S.W.3d 184, 193 (Tex. Crim. App. 2013). 

In Johnson, the intermediate court had had before it a trial court’s ruling denying 

the motion to suppress in that case wherein the trial court had made no explicit findings 

as to whether a detention had occurred. The court of appeals reviewed the evidence “in 

the requisite light most favorable to the trial court’s ruling and infer the necessary factual 

findings that support the trial court’s ruling if the evidence supports those findings” 

Johnson, 414 S.W.3d at 192-93. The intermediate court then decided the evidence 

supported the trial court’s implicit finding that there was no detention under those 

circumstances. Id at 193.

The Court of Criminal Appeals pointed out that the lower court should have 

reviewed the issue of encounter versus detention de novo. See Kerwick, 393 S.W.3d at 273).

The Court then concluded that under the totality of circumstances listed above, “a 

reasonable person would not have felt free to leave or decline the officer’s requests.” 

Id. The Court explained:

We point out that the officer's shining of a “pretty darn bright” high-beam 

spotlight onto a person sitting in a parked vehicle, parking the police car 

in such a way as to at least partially block the person's vehicle such that 

the person would have had to “maneuver” around the police car to drive 

away, using a “loud authoritative voice” in speaking with the person, 

asking “what's going on,” and demanding identification manifests a 

detention, that is, an interaction that a reasonable person would not feel 

free to terminate. While none of these circumstances individually would 

necessarily lead to an inescapable conclusion that the person was detained, 
11

under the totality of these circumstances, we conclude that appellant 

was indeed detained—perhaps when the officer shined a bright 

light on him in his car, but certainly when the officer blocked 

appellant's car such that appellant would have had to “maneuver” 

his car from its parking place if he wished to terminate the 

interaction—thus implicating Fourth Amendment protections. On 

this record, the trial court could not reasonably have concluded that a 

reasonable *194 person in appellant's shoes would have felt free to 

disregard the officer's approach, show of authority, and commands or felt 

free to terminate the interaction.

Johnson, 414 S.W.3d at 193-94.

In this case, the police pulled in front of a man on a bicycle, “with [their] lights 

and strobes and everything,” shined a spotlight shined on him, and demanded he stop 

riding his bicycle and, according to Brewster, asked him whether he had a crack pipe 

on him even before he checked for warrants (2 R.R. at 23).

2. The question began a custodial interrogation.

Once the police activity had caused Mr. Scott to yield to the officers’ show of 

authority and asked him who he was and where he was going, Officer Brewster made 

clear he suspected him of criminal activity beyond the traffic offenses. In asking him 

whether he had a crack pipe, the officer began an interrogation into a different crime. 

Under the totality of these circumstances, no reasonable person would have felt 

free to terminate the interaction. The officers should have apprised Mr. Scott of his 

rights under Miranda. U.S. Const. Ams. IV, V; Tex. Const., Art.1, §9.

1

 

1

In an Addendum to its opinion in State v. Ortiz, the Court of Criminal Appeals made clear that the 

defendant does not have to show he fits into one of the four categories enumerated in that case: “The 

Dowthitt categories were intended to be merely descriptive, not exhaustive. We held that the four 
12

2. Art. 14.3 (a)(6) did not authorize Mr. Scott’s warrantless arrest.

Assuming, as quoted above, Mr. Scott replied to Officer Brewster’s question: 

“Do you have a crack pipe on you” with “Yes, I have a crack pipe on me” that statement 

would fall under section (a)(6), since it established probable cause to believe Mr. Scott 

had committed a felony. Tex. Code Crim. Proc. Art. 14.3(a)(6). If the statement had 

been admissible under Art. 38.22, then the officers would have been authorized to arrest 

Mr. Scott on the basis of that statement.

The statement, however, was inadmissible under Art. 38.22 because Section 3(a)

of that article explicitly excludes its use against Mr. Scott. The pertinent part of the 

statute states:

Sec. 3(a) No oral or sign language statement of an accused made as a result 

of custodial interrogation shall be admissible against the accused in a 

criminal proceeding unless:

(1) an electronic recording, which may include motion picture, 

video tape, or other visual recording is made of the statement;

(2) prior to the statement but during the recording the accused is 

given the warning in Subsection (a) of Section 2 above and the accused 

knowingly, intelligently waives any rights set out in the warning.

Tex. Code Crim. Proc. Art. 38.22§3(a).

In State v. Ortiz, the Amarillo court of appeals considered whether statements 

admissible under §3(c), absent the warnings. The court stated: 

The state appears to assume that statements admissible under §3(c) are 

exempt from the requirements of Miranda. That is, an oral statement 

 

categories ‘at least... may constitute custody.’” State v. Ortiz, 382 S.W.3d 367, 376 (Tex.Crim. App. 

2012) discussing Dowthitt v.State, 931 S.W.2d 244 (Tex. Crim. App. 1996).
13

obtained during custodial interrogation, meeting the exception of §3(c) 

would be admissible, even if not preceded by the Miranda warnings. For 

this proposition, the State cites no authority and we can envision none

since such a rule would engraft an additional, unrecognized exception 

onto Miranda.

State v. Ortiz, 346 S.W.3d 127, 136 (Tex. App.—[Amarillo, Panel D] (2011)(pet. granted).

It is the state’s burden to show that a defendant was given proper warnings or 

will face the suppression of any statements given by the defendant. Miranda, 384 U.S. 

at 492-93; Tex. Code Crim. Proc., art. 38.22 § 3.

In dealing with custodial interrogation, [a court] will not presume that a 

defendant has been effectively apprised of his rights and that his privilege 

against self-incrimination has been adequately safeguarded on a record 

that does not show any warnings have been given or that any effective 

alternative has been employed. Nor can a knowing and intelligent waiver 

of these rights be assumed on a silent record.

Miranda, 384 U.S. at 498-99. 

In summary, Mr. Scott was the subject of a custodial interrogation and the state 

made no showing that he was apprised of his constitutional rights under Miranda; the 

statement he made in response to the officer’s question should have been should have 

been included in the motion to suppress.

C. Ineffective Assistance of Counsel

1. Deficient Performance

The statement, assuming it was made, was what prompted the officers to retrieve 

the crack pipe from Mr. Scott’s pocket and gave them probable cause to arrest him. It 
14

was when Brewster was about to handcuff him that Rothberg said he saw the pistol (2 

R.R. at 46). 

Because the statement came in without an attempt to suppress it or an objection, 

the proceeding was reduced to a credibility match between Mr. Scott and the officers 

as to whether they searched him without consent or whether Mr. Scott gave them 

probable cause to arrest him after telling them he had a crack pipe. The standard of 

review on questions of credibility and demeanor gives almost total deference to the trial 

court “But when mixed questions of law and fact do not depend on credibility and 

demeanor, we review the trial court’s ruling de novo.” Kerwick, 393 S.W.3d at 273.

Moving to suppress the statement would have raised issues as to the nature of 

the stop and the reasonableness and this Court could then review the trial court’s 

inferred determinations de novo. Had counsel moved to suppress the statement, the law 

would have required its suppression. Miranda at 492-93. Without the statement, there 

would have been no cause to search or arrest Mr. Scott. There could have been no 

conceivable strategy involved in failing to attempt to suppress the statement.

2. Prejudice

But for counsel’s failure to move to suppress the statement, either the motion to 

suppress would have been granted, eliminating the need to proceed to trial, or error 

would have been preserved on the issue. Without the statement, neither the crack pipe 

crack pipe nor the revolver would have been legally seized and there would have been 
15

no arrest, legal or otherwise, to evade. There can be no confidence in the outcome of 

the proceeding.

Prayer

Mr. Scott asks the Court to reverse his conviction and remand for appropriate 

action by the trial court.

Respectfully submitted,

ALEXANDER BUNIN

Chief Public Defender

Harris County Texas 

/s/Melissa Martin

______________________________

Melissa Martin

Assistant Public Defender 

Harris County Texas 

1201 Franklin 13th Floor

Houston Texas 77002

(713) 368-0016

(713) 437-4319 e-fax

TBA No. 24002532

CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing brief to the Harris County 

District Attorney on the day the brief was accepted.

/s/ Melissa Martin

______________________________

MELISSA MARTIN

Assistant Public Defender 
16

CERTIFICATE OF COMPLIANCE

 Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies 

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief 

contains 3,822 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface using Garamond 

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft 

Word software.

3. Upon request, undersigned counsel will provide an electronic version of this brief 

and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in completing 

this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), 

may result in the Court's striking this brief and imposing sanctions against the person 

who signed it.

/s/ Melissa Martin

______________________________

MELISSA MARTIN