NO. 05-10-00703-CR - courtstuff.com

NO. 05-10-00703-CR

IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS

AT DALLAS, TEXAS

SOL DAVID BARRON,
Appellant
vs.

THE STATE OF TEXAS,
Appellee

On appeal from the Criminal District Court No. 7
of Dallas County, Texas

The Honorable Mike Snipes, Judge Presiding
Cause No. F09-33990-Y

APPELLANT'S BRIEF

Counsel of Record:
DAVID M. JORDAN
STATE BAR NO. 11007550
2351 W. NORTHWEST HIGHWAY, SUITE 3125
DALLAS, TEXAS 75220

214-956-7824
214-956-7819 (FAX)
ATTORNEY FOR APPELLANT

IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE JUDGMENT:

APPELLANT: Sol Barron

APPELLEE: Craig Watkins, Dallas County Criminal District Attorney
133 N. Riverfront Blvd., LB 19
Dallas, TX 75207

PRESIDING JUDGE: Mike Snipes

DEFENSE TRIAL COUNSEL: David M. Jordan

TRIAL PROSECUTOR: Casey Blair (Motion to Suppress)
Travis Wiles (plea)

APPELLATE COUNSEL: David M. Jordan

2351 W. Northwest Highway, Suite 3125

Dallas, Texas 75220

TABLE OF CONTENTS

page
STATEMENT OF THE CASE……………………………………………………… 1

ISSUES PRESENTED ON APPEAL-ISSUE ONE……………………………...... 1

STATEMENT OF THE FACTS………………………..…….…………………… 2

ISSUE ONE, RESTATED……………………………………….………………. 4

ARGUMENTS AND AUTHORITIES………………………………………….. 4

A. FOURTH AMENDMENT………...…………..…................................. 4
B. TEXAS LAW……………………............................................................ 5
APPLICATION TO INSTANT CASE……………………….………………… 9

CONCLUSION………………………………………………………………….... 11

PRAYER………………………………………………………………………… 12
CERTIFICATE OF SERVICE……………………………………………….... 13

INDEX OF AUTHORITIES

CASE PAGE
UNITED STATES

Kyllo v. United States, 533 U.S. 27, 31,
150 L. Ed. 2d 94, 121 S. Ct. 2038 (2001)……………………………… 4

Kirk v. Louisiana, 536 U.S. 635,
153 L. Ed. 2d 599, 122 S. Ct. 2458 (2002)……………………………..4, 5

Payton v. New York, 445 U.S. 573, 590,
63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980)……………………………...4, 5

United States v. Gross, 2010 U. S. App. LEXIS 21478
(6th Cir. October 19, 2010)………………………………………………5

Ybarra v. Illinois, 540 U.S. 366, 373-373 (2003)………………………..7

Johnson v. U.S., 333 U.S. 10, 13, 92 L. Ed. 436, 68 S. Ct. 367 (1947)…… 8

TEXAS

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)………4

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)…………...4

Beverly v. State, 792 S.W.2d 103, 104-105 (Tex. Crim. App. 1990)…..5, 6

Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App. 1987)…………...5

Gutierrez v. State, 221 S.W.3d 680 685-686 (Tex. Crim. App. 2007)…....7

Parker v. State, 206 S.W.3d 593, 600-01 (Tex. Crim. App. 2006)……….7

Clark v. State, 117 Tex. Crim. 153, 35 S.W.2d 420, 422 (1931)………….7

Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993)…………….8

Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978)………….8

State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002)………………...8

NEW YORK
Tolentino v. New York, No. 09-1156(cert pending USCT)………………...5

STATUTES
TEX. CODE CRIM. PROC. ANN. art. 14.01 (Vernon 2005)………………..…11, 12
TEX. CODE CRIM. PROC. ANN. art. 14.03 (Vernon 2005)………………..6, 10, 12
TEX. CODE CRIM. PROC. ANN. art. 14.05 (Vernon 2005)…………………6, 7, 11

U.S.CONSTITUTION
Fourth Amendment …………………………………………………….4,5, 11

TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Sol Barron, Appellant, and respectfully submits this brief urging error
from a conviction for the offense of possession of methamphetamine.

STATEMENT OF THE CASE

Barron was indicted for the third degree felony offense of possession of a controlled
substance, to-wit: methamphetamine in the amount of more than one gram but less than four
grams, a violation of TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (Vernon 1994); TEX.
HEALTH & SAFETY CODE ANN. § 481.115(c) (Vernon 1994). (CR: 2). The indictment
included one enhancement paragraph alleging a prior conviction. (CR: 2). The trial court
denied Barron's motion to suppress evidence. (CR: 4; RR-1: 30).1 Subsequently, Barron
accepted a plea bargain offer of four years deferred adjudication probation and a $2,000 fine.
(CR: 11-14; 18-19; RR-2: 6). Notice of Appeal the Court's decision on the Motion to
Suppress was timely filed. (CR: 24, 25).

ISSUES PRESENTED
ISSUE ONE

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
SUPPRESS.

1The reporter's record from the Suppression Hearing on February 16, 2010 will be referred to as "RR-1". The
reporter's record from the guilty plea will be referred to as "RR-2".

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STATEMENT OF THE FACTS
Officer Rudy Chavez responded to a domestic disturbance at a motel in Irving. (RR-
1: 5). Amanda Jackson responded to his knock; she had no apparent or visible injuries. (RR-
1: 6, 10-11, 15). Chavez, without a warrant or an invitation, entered the room when he saw
Barron seated on a sofa. (RR-1: 6). Chavez told Jackson he was coming in the room. (RR-
1: 13). No one told him he could come in the room. (RR-1: 14).
Chavez testified that prior to entering the room, he saw drug paraphernalia (a bong) in
plain view through the open door; the bong was on the television. (RR-1: 6-7, 11). Chavez
also smelled a strong odor of marijuana. (RR-1: 6). Defense Exhibits 1 and 3, photos of the
motel room, prove that Chavez could not see the bong from the door of the room. (RR-1: 12-
14, 21, 27). The sofa where Barron was seated is nowhere near the television. (RR-1: 12).
Once Chavez obtained Barron’s identification, he discovered that Barron had outstanding
warrants from Grand Prairie. (RR-1: 7-8). Upon searching Barron for weapons, Chavez
discovered a baggie of methamphetamine in Barron’s pants pocket. (RR-1: 9-10).
Amanda Jackson was in the motel room with Barron when police arrived. (RR-1: 18).
She answered Chavez’s knock and upon opening the door, kept her hand on the doorknob.
(RR-1: 19). She did not open the door very wide. (RR-1: 21). Chavez began stepping into
the room but she did not move. (RR-1: 19-20). She told him he could not come in, but he
forced her out of the way and came in. (RR-1: 20). The bong was on the television and
could not be seen from the front door and there was no mirror reflecting the television; it
could only be seen when one entered the room. (RR-1: 21-22, 27). There was no marijuana

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smell emitting from the room because they had not smoked in the room. (RR-1: 22, 26).
When Chavez patted Barron down, he held his hand on Barron’s pocket and said, “Oh,
what’s this?” (RR-1: 23). Jackson then heard an extended conversation between Chavez and
his supervisor who advised Chavez to call Grand Prairie and have them activate the warrants
for Barron. (RR-1: 23-24). After Barron was arrested and taken to jail, officers searched the
room. (RR-1: 25). Jackson only consented to this search after Chavez told her he could get a
warrant and she was not free to leave. (RR-1: 25).

SUMMARY OF THE ARGUMENT
The officers had no reasonable suspicion or probable cause to enter the motel room
once they determined that Jackson had no visible injuries and that there was no domestic
disturbance. There was no suspicious activity and it was impossible for Officer Chavez to
see the drug paraphernalia (a bong) from outside the room. Thus, Chavez had no reason to
believe that Barron had committed or was committing an offense. Furthermore, the odor of
burnt marijuana did not provide him with probable cause to enter the room. Therefore, the
trial court erred in denying Barron’s motion to suppress evidence.

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ISSUE ONE, RESTATED
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
SUPPRESS.

ARGUMENTS AND AUTHORITIES
Standard of Review

The appellate court reviews the trial court’s ruling on a motion to suppress under a
bifurcated standard of review, giving almost complete deference to the trial court’s findings
of historical fact supported by the record and reviewing de novo the trial court’s application
of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
Relevant Authorities

A. Fourth Amendment
A private dwelling is a sacrosanct place in search and seizure law. As Justice Scalia
recently stated for the United States Supreme Court: "'At the very core' of the Fourth
Amendment 'stands the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.'" Kyllo v. United States, 533 U.S. 27, 31, 150 L. Ed. 2d
94, 121 S. Ct. 2038 (2001). The United States Supreme Court has recently unanimously
reaffirmed the principle that "police officers need either a warrant or probable cause plus
exigent circumstances in order to make a lawful entry into a home." Kirk v. Louisiana, 536
U.S. 635, 153 L. Ed. 2d 599, 122 S. Ct. 2458 (2002). Quoting Payton v. New York, 445 U.S.

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573, 590, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), Kirk reiterated that "because 'the Fourth
Amendment has drawn a firm line at the entrance to the house . . .[, a]bsent exigent
circumstances, that threshold may not reasonably be crossed without a warrant.'" Id. (internal
deletion in original).

In United States v. Gross, 2010 U. S. App. LEXIS 21478 (6th Cir. October 19, 2010),
the Court held that the discovery of a valid arrest warrant did not dissipate the taint of the
illegal stop. The Court stated, “We . . . hold that, where there is a stop with no legal purpose,
the discovery of a warrant during that stop will not constitute an intervening circumstance.”

On November 15, 2010, the United States Supreme Court granted certiorari in
Tolentino v. New York, No. 09-1156. In that case, Tolentino was stopped for playing music
too loudly. When the police ran a computer check, it was discovered that his driver’s license
was suspended; he was arrested. Tolentino conceded that his identity was not suppressible2,
but argued that his pre-existing DMV records were suppressible because they were only
discovered as the “fruit of an illegal stop.”

B. Texas Law
A police officer may arrest an individual without a warrant only if (1) there is
probable cause with respect to that individual and (2) the arrest falls within one of the
statutory exceptions. Beverly v. State, 792 S.W.2d 103, 104-105 (Tex. Crim. App. 1990);

2See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

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Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App. 1987) (plurality opinion). In Beverly,
this Court explained that:

The test for probable cause for a warrantless arrest under [article
14.01(b)] is whether at that moment the facts and circumstances within the
officer's knowledge and of which he had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the arrested person
had committed or was committing an offense.

792 S.W.2d at 105 (some punctuation omitted.)
One of the statutory exceptions, Article 14.01(b), provides that "[a] peace officer may

arrest an offender without a warrant for any offense committed in his presence or within his
view." TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (Vernon 1967). Another statutory
exception, Article 14.03(a)(2) provides that an officer may arrest without a warrant a person
believed to have “committed assault resulting in bodily injury” and he has reason to believe
there is a danger of further bodily injury to that person. TEX. CODE CRIM. PROC. ANN. art.
14.03(a)(2) (Vernon 2005). Another statutory exception, Article 14.03(a)(4) provides that an
officer may arrest without a warrant a person “who the peace officer has probable cause to
believe has committed an offense involving family violence.” TEX. CODE CRIM. PROC. ANN.
art. 14.03(a)(4) (Vernon 2005). TEX. CODE CRIM. PROC. ANN. art. 14.05 provides, in
pertinent part:

[A]n officer making an arrest without a warrant may not enter a
residence to make the arrest unless:

(1) a person who resides in the residence consents to the entry; or

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(2) exigent circumstances require that the officer making the arrest enter
the residence without the consent of a resident or without a warrant.

TEX. CODE CRIM. PROC. ANN. art. 14.05 (Vernon 1987) (emphasis added).

The Court of Criminal Appeals recently summarized the approach to be taken when

examining the validity of a warrantless search:

To validate a warrantless search based on exigent circumstances, the
State must satisfy a two-step process. First, there must be probable cause to
enter or search a specific location. In the context of warrantless searches,
probable cause exists "when reasonably trustworthy facts and circumstances
within the knowledge of the officer on the scene would lead a man of
reasonable prudence to believe that the instrumentality . . . or evidence of a
crime will be found." Second, an exigency that requires an immediate entry to
a particular place without a warrant must exist. . . . If the State does not
adequately establish both probable cause and exigent circumstances, then a
warrantless entry will not withstand judicial scrutiny.

Gutierrez, 221 S.W.3d at 685-86 (citations omitted) (emphasis added).

The same facts which give rise to probable cause may also be relevant to an analysis

of exigent circumstances. See Parker v. State, 206 S.W.3d 593, 600-01 (Tex. Crim. App.

2006). “Where the standard is probable cause, a search . . . must be supported by probable

cause particularized with respect to that person.” Ybarra v. Illinois, 540 U.S. 366, 373-373

(2003).

An offense is deemed to have occurred within the presence or view of an officer when

any of his senses afford him an awareness of its occurrence. Clark v. State, 117 Tex. Crim.

153, 35 S.W.2d 420, 422 (1931). However, the information afforded to the officer by his

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senses must give the officer reason to believe that a particular suspect committed the
offense. Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993). This Court has
recognized that "odors alone do not authorize a search without a warrant." Moulden v. State,
576 S.W.2d 817, 819 (Tex. Crim. App. 1978), quoting Johnson v. U.S., 333 U.S. 10, 13, 92
L. Ed. 436, 68 S. Ct. 367 (1947).

In State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002), officers were
investigating a tip that drug dealing was occurring at the Steelman3 home. When officers
arrived, they peeked in the blinds and observed no illegal activity, but saw four men seated in
the living room. In response to the officer’s knock, Ian opened the front door, stepped
outside and closed the door behind him. When he did so, the officers smelled the odor of
burnt marijuana. When asked for identification, Ian told them he would have to get it from
inside. Ian opened the door, walked inside and attempted to close the door. One of the
officers placed his foot in the door to prevent it from closing. The officers burst through the
door and placed all four occupants under arrest. A narcotics officer arrived on scene and was
denied consent to search the residence. He obtained a search warrant two hours later and,
upon searching the house, found marijuana. In affirming the trial court’s suppression of the
evidence, the Court wrote:

Given the evidence before it, the trial court in the instant case could
have reasonably concluded that the arrest of Ian was not lawfully made
without a warrant because the arresting officers did not have probable cause to

3Both Leo Steelman and Ian Steelman, father and son, were charged with this offense.

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believe that Ian had committed an offense in their presence. Since the officers
had no authority to make a warrantless arrest under article 14.01(b), they had
no authority (under article14.05) to enter the residence without a warrant and
conduct a search, and any evidence seized as a result of those illegalities was
tainted and subject to suppression.

Id. at 109-110.
Application to the Instant Case

Officer Chavez responded to a domestic disturbance call at a motel. (RR-1: 5). The
call was made by the motel clerk who said the occupants of a particular room were yelling.
(RR-1: 16-17). Notably, Chavez did not testify that he heard any arguing or yelling or
sounds as if a disturbance or physical altercation was occurring in the room. When Chavez
knocked on the door, Amanda Jackson opened it. (RR-1: 6, 10, 19). When Jackson
answered the door, she had no visible injuries and did not appear in distress. (RR-1: 10-11,
15). She kept her hand on the door. (RR-1: 19). Chavez saw Barron seated on a sofa inside
the room. (RR-1: 6, 11). Barron also had no visible injuries. (RR-1: 16). Chavez testified
that he did not ask to enter the room, but told them he was coming in because he smelled
burnt marijuana. (RR-1: 13, 14). Jackson, however, testified that when Chavez asked to
come in, she told him she preferred he not come in the room. (RR-1: 19). Thus, Chavez did
not have consent to enter the room. Chavez pushed Jackson out of the way and forcibly
entered the room. (RR-1: 20). Chavez conducted a pat down search of Barron and obtained
his identification. (RR-1: 7, 14).

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Chavez testified that he smelled the odor of burnt marijuana and saw a bong on the
television in plain view from outside the room. (RR-1: 6-7, 11). However, the photographs
of the room, Defense Exhibits 1-3, refute this testimony. The television could not be seen
from outside the room. (RR-1: 12, 21-22). Thus, Chavez could not see the bong.
Subsequently, warrants for Barron’s arrest were confirmed out of Grand Prairie and he was
arrested for the warrants and drug paraphernalia. (RR-1: 9). A search incident to arrest
yielded a baggie of methamphetamine in Barron’s pocket. (RR-1: 9-10).

Chavez had neither an arrest or search warrant when he arrived at the motel. Chavez
had no reasonable suspicion, much less probable cause, that any illegal activity was occurring
in the motel room. Chavez was responding to a call that people were yelling in a particular
room of the motel; the caller did not say that an assault was occurring. (RR-1: 5, 16-17).
Chavez did not hear any signs of a domestic dispute (yelling or physical altercation) when he
arrived. When Jackson answered the knock, she had no visible signs of injury and neither
did Barron. (RR-1: 10-11, 15, 16). Chavez did not ask Jackson whether she was the victim
of a domestic disturbance. Thus, Chavez had no reason to believe that an assault or family
violence had occurred and the exception provided by Article 14.03(a)(2) and (4) is not
applicable. There were no exigent circumstances which demanded Chavez enter the room.

Rather, Chavez told Jackson he was coming in because he smelled burnt marijuana.
(RR-1: 13, 14). He barged into the room, forcibly pushing her aside as he entered. (RR-1:
20). As evidenced by the photos, it was only after he entered the room that he observed the
bong.

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Barron acknowledges that almost total deference is given to the trial court’s
determination of credibility. However, in this situation Chavez’s credibility is refuted by the
photographs of the motel room (Defense Exhibits 1-3) which demonstrate that he could not
see the bong and the television from outside the room. Thus, the trial court’s determination
that Chavez was credible is incorrect and should not be given deference by this Court.

Conclusion
This case is directly analogous to Steelman. The odor of burnt marijuana did not allow
Chavez to enter the motel room and investigate. Chavez had no probable cause to believe
that Barron had committed an offense in his presence. Since Chavez had no authority to
make a warrantless arrest under article 14.01(b), he had no authority under article14.05 to
enter the residence without a warrant and conduct a search. Furthermore, Defense Exhibits
1-3 refute his testimony that he saw the bong in plain view from outside the room. Any
evidence seized as a result of those illegalities was tainted and subject to suppression.
Thus, pursuant to the Fourth Amendment, the evidence should have been suppressed
because there was no probable cause or exigent circumstances for Chavez to enter the motel
room. The subsequent discovery of the valid arrest warrants from Grand Prairie did not
dissipate the taint of the illegal entry.
Furthermore, Chavez did not have probable cause to arrest Barron and the statutory
exceptions, Articles 14.01 and 14.03, are inapplicable. No exigent circumstances existed
which required Chavez to enter the room. It was not necessary for him to enter the room to
prevent an assault. Neither Jackson nor Barron consented to Chavez’s entry. In fact, Chavez

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told them he was coming in and forced his way in. Only after Chavez was inside the room
could he have seen the bong. The smell of marijuana did not mean that Barron had
committed an offense in Chavez’s presence (he was not smoking a joint when Chavez
entered). Thus, Chavez illegally entered the room without probable cause and exigent
circumstances. The trial court erred in denying Barron’s motion to suppress the evidence.

PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that his conviction will
be reversed and the case remanded for a new trial.

Respectfully submitted,

DAVID M. JORDAN
STATE BAR NO. 11007550
2351 W. NORTHWEST HIGHWAY, SUITE 3125
DALLAS, TEXAS 75220
214-956-7824
214-956-7819 (FAX)

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing brief has been served on the Dallas
County Criminal District Attorney, Appellate Division, 133 N. Riverfront Blvd., LB-19,
Dallas, Texas 75207-4399, by depositing in the United States mail, postage prepaid, on
December 14, 2010.

David M. Jordan

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