N O

. 01

- 15 -00053- CR N O

. 01

- 15 -00054- CR

I N T HE C OURT OF A PPEALS F OR THE F IRST D ISTRICT OF T EXAS

D AMIAN S COTT

Appellant

v

.

THE S TATE OF T EXAS Appellee

On Appeal from Cause Numbers 1410122 & 1410123 From the 174th District Court of Harris County, Texas

B RIEF FOR A

PPELLANT

O RAL A RGUMENT R EQUESTED A LEXANDER B UNIN Chief Public Defender Harris County, Texas

M ELISSA M ARTIN Assistant Public Defender Harris County, Texas TBN. 24002532 1201 Franklin, 13 th 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

CLERKii I DENTITY OF P ARTIES AND C OUNSEL

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 , 6 th Fl Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Paul St. J ohn Attorney at Law
111 W 15 th St Houston, Texas 7700 8

PRESIDING JUDGE: Hon. Ruben Guerrero
174th District Court Harris County, Texas 1201 Franklin Avenue, 19 th Fl Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin
Assistant Public Defender Harris County, Texas 1201 Franklin Avenue, 13 th floor Houston, Texas 77002iii T ABLE OF C ONTENTS

I DENTITY OF P

ARTIES AND C OUNSEL

................................ ................................ ................... ii

T ABLE OF C ONTENTS

................................ ................................ ................................ ............. iii

I NDEX OF A

UTHORITIES

................................ ................................ ................................ ........ v

S TATEMENT OF THE C ASE

................................ ................................ ................................ ...... 1

S TATEMENT OF F

ACTS

................................ ................................ ................................ ............ 1

I SSUE P RESENTED

................................ ................................ ................................ ................... 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 bein g 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 alle ged 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.

S UMMA RY OF THE A RGUMENT

................................ ................................ .............................. 3

A RGUMENT

................................ ................................ ................................ .............................. 4

A. S TANDARD OF R EVIEW

................................ ................................ ............................... 4

1. I NEFFECTIVE A SSISTANCE OF C OUNSEL

................................ ............................. 4iv

2. M OTIONS TO S UPPRESS

................................ ................................ ......................... 5

3. A PPLICABLE F OURTH A MENDMENT AND S TATUTORY L AW

............................. 6

( A ). T RAFFIC STOPS

................................ ................................ ................................ 7

( B ). P EACE OFFICERS ’ AUTHORITY TO MAKE A WARRANTLESS ARREST

............ 8

B. A PPLICATION

................................ ................................ ................................ ............... 9

1. T HE TRAFFIC STOP WAS AN INVESTIGATIVE DET ENTION

................................ . 9

2. T HE QUESTION BEGAN A CUSTODIAL INTERROGAT ION

................................ . 1 1

3. A RT

. 14.3 (

A )(6) DID NOT AUTHORIZE M R

. S COTT ’ S WARRANTLESS ARREST 12

C. I NEFFECTIVE A SSISTANCE OF C OUNSEL

................................ ................................ 1 3

1. D EFICIENT P ERFORMANCE

................................ ................................ ................ 13

2. P REJUDICE

................................ ................................ ................................ ............ 14

P RAYER

................................ ................................ ................................ ................................ .. 15

C ERTIFICATE OF S ERVICE

................................ ................................ ................................ .... 15

C ERTIFICATE OF C OMPLIANCE

................................ ................................ ............................ 1 6v I NDEX OF A

UTHORITIES

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 [1 st 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 (T ex. 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)

................................ .................... 7vi

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. Am end . IV

................................ ................................ ............................ 3, 6, 7, 11

U.S. Const. Am end . V

................................ ................................ ................................ .......... 111 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

- 000 54

. 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 D ivision 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 w as 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).

Brewst er 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 Brewste r and Rothberg, on the other hand, testified that they asked Mr.

Scott to identify himself and told him why the y 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 the y 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 of ficer 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 be ing 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

. Johnso n

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

.
Article 14.3(6) authorizes peace officers to arrest, without a warrant, a p erson

who makes a statement to the officer that woul d 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 38.2 2 , 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 t o 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 Re view

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 app ellant

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

.
App ellate 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 of5

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

We determ ine 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 i s to pursue the claim in habeas proceedings. Bone v. State , 77 S.W.3d 828,

833 (Tex. Crim. App. 2002) . But when no reason able 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 tri al court makes no explicit findings of fact, as in the instant case, the6

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

im plied fact findings. State v. Garcia

- Cantu

, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)

.
Motions to sup press 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 w hen 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 factua l 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 po lice

- civilian

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

2d, 408

- 409 (Tex.App.

— Houston [1 st Dist. ] 1995) ; Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct.

1868, 1879 (1968)

.

(a) Traf

fic s tops

.

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 Pennsylvan ia v. Mimms , 434 U.S. 106, 109 (1977)* per

curiam)

.8

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

specific and articulable facts which, taken together, with rational inferences fr om 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 eng aged in criminal activity. State

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

(b) Peace officers’ authority to make a warrantless a rrest

.
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. Pr oc. 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 statem ent 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 w ith 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, say s 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 ridin g 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

rea sonable 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 wit h 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 identifica tion; 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 wheth er 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 finding s”

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 Cou rt 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” h igh

- 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 auth oritative 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 wo uld 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 reasonabl y 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 demand ed he stop

riding his bicycle and, according to Brew ster, 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 hi m 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 four12

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 be en authorized to arrest

Mr. Scott on the ba sis of that statement.

The statement, however, was in admissible 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

cr iminal 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. O rtiz

, 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 or al 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 non e 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 defe ndant. 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 defend ant 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 kno wing 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. It14

was when Brewster was about to handcuff him that Rothberg said he saw the pis tol (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 gi ves 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 stateme nt, 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 h ave 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 been15

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

the pr oceeding.

Prayer

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

action by the trial court.

Respectfully submitted,

A LEXANDER B UNIN Chief Public Defender Harris County Texas

/s/Melissa Martin

______________________________ Melissa Martin Assistant Public Defender Harris County Texas 1201 Franklin 13 th Floor Houston Texas 77002 (713) 368

- 0016 (713) 437

- 4319 e

- fax TBA No. 24002532

C ERTIFICATE OF S ERVICE

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

______________________________ M ELISSA M ARTIN Assi stant Public Defender16 C ERTIFICATE OF C OMPLIANCE

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 exemp ted 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 misrepresen tation 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

______________________________ M ELISSA M ARTIN