The opinion
ACCEPTED
03-15-00053-CR
6660449
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/26/2015 12:51:06 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00053-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS AT AUSTIN
8/26/2015 12:51:06 PM
JEFFREY D. KYLE
Clerk
***************************************************
CAUSE NO. 71,785
IN THE 264TH JUDICIAL DISTRICT OF
BELL COUNTY, TEXAS
***************************************************
KEVIN DUAN DRISDALE APPELLANT
VS
THE STATE OF TEXAS APPELLEE
***************************************************
APPELLANT’S BRIEF
___________________________________________________
APPEAL OF JUDGMENT IN CAUSE NO. 71,785
FROM THE 264TH JUDICIAL DISTRICT
OF BELL COUNTY, TEXAS
___________________________________________________
NO ORAL ARGUMENT REQUESTED
JAMES H. KREIMEYER
ATTORNEY FOR APPELLANT
P.O. BOX 727
BELTON, TEXAS 76513
(254) 939-9393
(254) 939-2870 FAX
T.S.B. #11722000
jkreime@vvm.com
IDENTITY OF PARTIES AND COUNSEL
Judge at Trial: Hon. Martha J. Trudo
264th Judicial District
P.O. Box 324
Belton, Texas 76513
Prosecutors: Michael Waldman
Asst. District Attorneys
P.O. 540
Belton, Texas 76513
Defense Attorney at Trial Scott Wilkerson
Attorney at Law
100 W. Cent.TX Exp S305
Harker Heights, TX 76542
Attorney for Appellant: James H. Kreimeyer
Attorney at Law
P.O. Box 727
Belton, TX 76513
Attorney for Appellee: Bob Odom
Asst. District Attorney
P.O. Box 540
Belton, Texas 76513
Appellant: Kevin Duan Drisdale
TDCJ#01972026
James Bradshaw State Jail
P.O. Box 9000
Henderson, TX 75653
ii
TABLE OF CONTENTS
PAGE NO.
IDENTITY OF PARTIES AND COUNSEL. . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . .iii
INDEX OF AUTHORITIES. . . . . . . . . . . .iv-v
STATEMENT OF THE CASE. . . . . . . . . . . .1-3
ISSUES PRESENTED. . . . . . . . . . . . . . . 3
STATEMENT OF FACTS. . . . . . . . . . . . . 3-9
SUMMARY OF THE ARGUMENT. . . . . . . . . . . .9
ARGUMENT STANDARD OF REVIEW . . . . . . . .9-17
PRAYER. . . . . . . . . . . . . . . . . . . .18
CERTIFICATE OF COMPLIANCE. . . . . . . . . . 19
CERTIFICATE OF SERVICE. . . . . . . . . . . .20
iii
INDEX OF AUTHORITIES
CASES: PAGE NO.
Malone v. State, 163 S.W.3d 785, 795
(Tex. App. 2005). . . . . . . . . . . . . . 10
State v. Ibarra, S.W.2d 242, 243
(Tex. Crim. App. 1997). . . . . . . . . . . 10
U.S. v. Matlock, 415 U.S. 164 (1974). . . .10,11,17
Georgia v. Randolph, 547 U.S. 103, 104, (2006)11-12
Rivas v. State, 446 S.W.3d 575, 580
(Tex. App. 2014), on remand from pdr, reh’g
overruled (Oct. 30, 2014). . . . . . . . . .12
Pruett v. State, 463 S.W.2d 191, 194
(Tex. Crim. App. 1970). . . . . . . . . . . 12
Denton v. Texas Dep’t of Pub. Safety Officers Ass’n
862 S.W.2d 785, 791 (Tex. App. 1993), writ
granted (May 11, 1994), aff’d and remanded,
897 S.W.2d 757 (Tex. 1995). . . . . . . . . 13
U.S. v. Taylor, 600 F.3d 678 (2010). . . . . .13-15
U.S. v. Salinas-Cano, 959 F2d 861
(10th Cir.1992). . . . . . . . . . . . . .14-15
Frazier v. Cupp, 394 U.S. 731, 740, (1969). . . .16
Coolidge v. New Hampshire, 403 U.S. 443, (1971). 16
iv
STATUES:
United State Constitution
Fourth Amendment. . . . . . . . . . . . . . .7
Fifth Amendment. . . . . . . . . . . . . . . 7
Sixth Amendment. . . . . . . . . . . . . . . 7
Fourteenth Amendment. . . . . . . . . . . . .7
Texas Constitution
Article I §9. . . . . . . . . . . . . . . . .7
Article I §10. . . . . . . . . . . . . . . . 7
Article I §19. . . . . . . . . . . . . . . . 7
Texas Crim. Proc. Code
Article 38.23. . . . . . . . . . . . . . . . 7
v
NO.03-15-00053-CR
IN THE
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
AT AUSTIN
*****************************************************
KEVIN DUANE DRISDALE APPELLANT
VS.
THE STATE OF TEXAS APPELLEE
******************************************************
APPELLANT’S BRIEF
STATEMENT OF THE CASE
KEVIN DUANE DRISDALE, appellant, was
charged by indictment in paragraph one with the
offense of possessing, with intent to deliver,
a controlled substance: Cocaine, more than four
grams but less than 200 grams. In paragraph two
of the indictment, a prior conviction for a
similar offense was alleged for enhancement.
(Cl. R. at 4)
1
After hearing appellant’s motion to
suppress search and arrest; (Cl. R. at 18) the
motion was denied by the trial court.
Appellant then entered a plea of guilty with a
plea agreement to be sentenced to twenty (20)
years in the Texas Department of Criminal
Justice—Institutional Division. (Cl. R. at
33)(R.R. VIII at 25) Appellant’s right to
appeal his pre-trial motion to suppress was
preserved. (Cl. R. at 33) The trial court
followed the plea recommendation and sentenced
appellant to twenty (20) years in the
Institutional Division. (R.R. VIII at 30)
Appellant’s trial lawyer filed a motion
for new trial on January 7, 2015. (Cl. R. at
51) The trial court denied the motion on the
same date. (Cl. R. at 53) A notice of desire
to appeal pro se was filed on January 5, 2015.
(Cl. R. at 43) An amended notice of appeal was
2
filed by appellate counsel with this court on
March 25, 2015.
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument.
ISSUE PRESENTED
The trial court erred in denying
appellant’s motion to suppress because the
consent to search given to law enforcement
officers by appellant’s co-tenant did not
extend to the contents of the container opened
and viewed by the law enforcement officers and
seized by the law enforcement officers without
a search warrant.
STATEMENT OF FACTS
Appellant proffered that at the time of
his arrest there was no warrant to arrest
appellant and the State agreed Appellant had
“standing”. (R. R. VII at 5) On August 11, 2013
City of Killeen police officers responded (R.R.
3
VII at 7) to a 911 “hang up” call to an
apartment complex in Killeen, Bell County,
Texas.
A female flagged the officers down. A
Killeen police officer, Stickles; along with an
officer in training, Hydorn, were the
responding officers. (R.R. VII at 9) After
verifying the female was the caller, Brenda
Layton. Layton pointed to appellant, who was
standing on a second story walkway. Layton told
officers appellant would run, had drugs and was
on parole. Layton indicated the drugs were kept
in a large brown box. (R.R. VII at 16) Stickles
went up to speak to appellant. (R.R. VII at 11)
Hydorn went to the stairwell and watched to
make sure appellant did not run. Stickles
determined there could be a domestic situation.
Appellant did not try to run or evade the
officer. (R.R. VII at 12) Appellant was
identified as the person on the walkway.
4
Appellant told the officer there had been a
verbal argument with Layton and she had
misplaced her keys and phone. (R.R. VII at 13)
Appellant told the officer he leased the
apartment and was allowed to leave to go work
out at a gym. Appellant was believed to have
left the area. (R.R. VII at 14)
Layton was upset and scared and wanted to
verify appellant had left. She further stated
there had been a verbal argument over the cell
phone and appellant had interrupted her 911
emergency call. Stickles went with Layton to
the apartment. (R.R. VII at 15) Layton believed
appellant had her cell phone and keys. Layton
then told the officer appellant had struck her
because of something on her phone. (R.R. VII at
16)
Stickles asked Layton if she would like
for him to assist her in looking for her phone
in the apartment. She said she was on the lease
5
and had a 60 day notice to vacate the
apartment. Layton gave the officer verbal
consent to help her search for her keys and
phone. While looking for the items, Stickles
noticed a brown wooden box (R.R. VII at 17)
Layton had described. It was on the top shelf
of the open closet. Stickles asked if he could
look in the box and opened it and found
baggies, razor blades, digital scales and what
he believed, based on his experience, to be
cocaine. (R.R. VII at 18)
At about this time, appellant was
returning to the apartment and Stickles put the
box back on the shelf in the same spot. The
officer then spoke to appellant. (R.R. VII at
19) It was determined the reason appellant
returned was to get his ear phones. He wanted
to get them himself from the bedroom and this
was done. (R.R. VII at 20) Appellant lifted the
mattress and revealed the phone. (R.R. VII at
6
21) Appellant was asked to show what items were
his in the closet and he was vague about what
was his. There was a safe which appellant
denied was his, but he could state there was
nothing in the safe. (R.R. VII at 22) At that
point, Stickles placed appellant under arrest.
(R.R. VII at 23)
Appellant’s counsel relied upon the
pleadings in the motion to suppress for the
basis to suppress the fruits of the search. The
basis in the motion to suppress for the
granting of the motion was the Fourth, Fifth,
Sixth and Fourteenth Amendments to the United
States Constitution; Art I Sections 9, 10, and
19 of the Constitution of the State of Texas.
(Cl. R. at 19) As well as Article 38.23 Tex.
Crim. Proc. Code. (Cl. R. at 18)
Upon denying appellant’s motion to
suppress, the trial court made these findings
verbally on the record:
7
Layton and (appellant)
apparently both live in the
apartment. The apartment being
leased by (R.R. VII at 86) Layton
and there has been a 911 hang up
call claiming domestic violence,
that she detailed information
regarding interference with 911,
as well as physical assault, and
reportedly indicated the
(appellant) was selling drugs and
was on parole and might run and
she was the owner of the apartment
and given consent to search after
explaining that the (appellant)
had taken her keys and her cell
phone and she gave consent to the
police officers to help her look
and search for the keys and cell
phone.
The trial court further found
the closet to which the box
containing the drugs and
paraphernalia, scales, baggies was
found in a closet containing
clothing belonging to both Brenda
Layton as well as (appellant) and
that she had given consent as well
for the officer to help her search
for her keys and her cell phone.
The box was returned to the
shelf when apparently the recruit
and (appellant) came back in to
the apartment but the drugs had
already been discovered with the
consent, (appellant) was arrested
at that point for the interference
after providing the cell phone
which was hidden under the
mattress, was arrested for the
8
interference with the 911, and
apparently then the drug
possession following the
discovery.
The trial court found there
was consent for the search which
was actually being given to find
keys and cell phone and certainly
[sic] was discovered. So the court
is going to deny the motion to
suppress. (R.R. VII at 87)
SUMMARY OF THE ARGUMENT
The State failed to prove by clear and
convincing evidence the co-tenant of appellant
had common authority to authorize the opening
of the container attributed to appellant or to
the seizure of the contents without a warrant.
ARGUMENT
STANDARD OF REVIEW
At a hearing on a motion to suppress
evidence, the trial court is the sole and
exclusive trier of fact and the judge of the
credibility of witness testimony. Review of the
trial court's ruling on a motion to suppress is
under a bifurcated standard of review, giving
9
almost total deference to the trial court's
determination of historical facts and reviewing
de novo the court's application of the law.
(citations omitted) Malone v. State, 163 S.W.3d
785, 795 (Tex. App. 2005) The Texas Court of
Criminal Appeals has repeatedly held the State
to a standard of clear and convincing evidence
when attempting to show the voluntariness of a
consent to search. State v. Ibarra, 953 S.W.2d
242, 243 (Tex. Crim. App. 1997)
The important issues before the court are:
Did co-tenant Layton have the authority to
consent to the opening of the brown box, and
the seizure of the contents, and has the State
shown this authority by clear and convincing
evidence?
In U.S. v. Matlock, 415 U.S. 164 (1974)
the United State Supreme Court recognized the
voluntary consent of a joint occupant to search
the premises jointly occupied is valid against
10
the co-occupant, permitting evidence discovered
in the search to be used against him in the
criminal trial. Matlock, supra. pp. 169 The
stated purpose of law enforcement officers in
seeking permission to search from the Matlock’s
co-occupant was to look for money and a gun, as
evidence in a bank robbery prosecution. A sum
of money was found in a diaper bag in a closet
jointly used by both parties; the consenting
party and Matlock. The Supreme Court never
addressed the issue of did the co-occupant’s
consent extend to the diaper bag. Since the co-
occupant was holding a small child in her arms
when she gave consent, it might be clear she
had access and a possessory interest in the
diaper bag.
A co-tenant who has an interest in
bringing criminal activity to light or in
deflecting suspicion from himself can, e.g.,
tell the police what he knows, for use before a
11
magistrate in getting a warrant. Georgia v.
Randolph, 547 U.S. 103, 104, (2006)
Once Layton, as a named “informant” told
Stickles about the contents of the brown box; a
proper search warrant could have been obtained.
Information from a named informant, and the
magistrate could find the information recent
and detailed enough to suggest that the
informant had direct knowledge sufficient for a
probable cause determination. Rivas v. State,
446 S.W.3d 575, 580 (Tex. App. 2014), on remand
from pdr, reh'g overruled (Oct. 30, 2014)
As far back as 1970 it was noted state
courts are not bound by ruling of lower federal
courts on Federal Constitutional questions,
both state and federal courts being of parallel
importance in deciding such questions, and both
answer to the Supreme Court on direct review.
United States ex rel. Pruett v. State, 463
S.W.2d 191, 194 (Tex. Crim. App. 1970)
12
Decisions of the federal courts of appeals and
district courts do not bind Texas courts
although they are received with respectful
consideration. Denton v. Texas Dep't of Pub.
Safety Officers Ass'n, 862 S.W.2d 785, 791
(Tex. App. 1993), writ granted (May 11, 1994),
aff'd and remanded, 897 S.W.2d 757 (Tex. 1995)
The United States Court of Appeals for the
Sixth Circuit decided U.S. v. Taylor, 600 F.3d
678 (2010) based on very similar facts to the
case sub judice. There the tenant, Arnett, gave
permission to search the apartment. While
conducting this search, a shoebox was opened
and the contents, a handgun and ammunition,
were seized by law enforcement officers. Taylor
was not a co-tenant, but was allowed to store
items in a spare room by the tenant. The
shoebox was in a closet along with Taylor’s
clothing. U.S. Court of Appeals reasoned the
expectation of privacy in one’s luggage is not
13
lessened by storing on the premises of a third-
party. Rather, the expectations may well be at
their most intense when such effects are
deposited temporarily or kept semi-permanently
in places under the general control of another.
A shoebox is not “luggage” but it is an often-
used storage container. (Taylor, supra. pp.
682-684) In United States v. Salinas-Cano, 959
F.2d 861 (10th Cir.1992), the Tenth Circuit
suppressed the results of a search of luggage
that Cano had left at his girlfriend's
apartment, even though she had given the police
specific consent to search the luggage.
(Salinas-Cano, 959 F.2d at 862) The Sixth
Circuit in Taylor noted several factors that
the Tenth Circuit took into consideration in
Cano: (1) the type of container and whether
that type “historically command[ed] a high
degree of privacy,” (2) whether the container's
owner took any precautions to protect his
14
privacy, (3) whether the resident at the
premises initiated the police involvement, and
(4) whether the consenting party disclaimed
ownership of the container. Id. at 864.
Applying these factors the search of the
suitcase unlawful because it was a type of
container long associated with privacy
expectations, Cano had ... never permitted his
girlfriend to look inside the suitcase, he had
not abandoned the suitcase but instead
maintained a periodic presence in the
apartment, and the law enforcement agents had
not questioned his girlfriend in a manner
sufficient to determine whether she had mutual
use of the Cano's suitcase.
Appellant will concede Layton had the
authority to admit the police officers to the
apartment and to conduct a search for her phone
and keys; but there is nothing in the record of
the hearing on appellant’s motion to suppress
15
to show Layton had mutual use and/or authority
to allow the officers to open the brown box,
much less consent to the seizure the contents
without a warrant.
The Supreme Court of the United States
noted that their prior recognition of the
constitutional validity of ‘third party
consent’ searches in cases like Frazier v.
Cupp, 394 U.S. 731, 740, (1969) and Coolidge v.
New Hampshire, 403 U.S. 443, (1971), supported
the view that a consent search is fundamentally
different in nature from the waiver of a trial
right. These cases at least make clear that
when the prosecution seeks to justify a
warrantless search by proof of voluntary
consent, it is not limited to proof that
consent was given by the defendant, but may
show that permission to search was obtained
from a third party who possessed common
authority over or other sufficient relationship
16
to the premises or effects sought to be
inspected. United States v. Matlock, 415 U.S.
164, 171-72, (1974)
While Layton may have possessed common
authority over the premises, there is no
showing in this record that she had common
authority over the brown box to consent to the
search and seizure of the brown box, a closed
container. While the officers, based on the
information from Layton, may have had ample
authority to obtain a search warrant by acting
on that information from Layton, they did not.
Because the State has failed to show by
clear and convincing evidence the authority for
Layton to consent to the opening and,
ultimately, the seizure of the brown box and
its contents; appellant’s motion to suppress
should have been granted. The trial court erred
in failing to do so.
17
PRAYER
Wherefore, premises considered, appellant
prays the Court of Appeals reverse the trial
court’s denial of his motion to suppress and
remand this case to the trial court and for any
other relief to which appellant may be
entitled.
Respectfully submitted,
/s/ James H. Kreimeyer
James H. Kreimeyer
Counsel for Appellant
P.O. Box 727
Belton, TX 76513
254-939-9393 Fax:939-2870
TSB#11722000
jkreime@vvm.com
18
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with
the length limitations of Texas Rule of Appellate
Procedure 9.4(i)(3) because this brief contains
2,266 words, excluding the parts of the brief
exempted by Texas Rule of Appellate Procedure
9.4(i)(1); a number which is less than the 15,000
words allowed under Rule 9.4(i)(2)(B).
I also certify that this brief complies with
the typeface requirements of Texas Rule of
Appellate Procedure 9.4(e) because this brief has
been written with a conventional typeface using a
14-point font (with footnotes no smaller than 12-
points) using Microsoft Office Word 2010 (version
14), in Courier New font.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
19
CERTIFICATE OF SERVICE TO OPPOSING COUNSEL
This is to certify a true copy of the foregoing
Appellant’s Brief was furnished to Bob Odom
Assistant District Attorney for Bell County, P.O.
Box 540, Belton, Texas 76513 on the 24th day of
August, 2015.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
CERTIFICATE OF SERVICE TO APPELLANT
This is to certify a true copy of the brief,
served to Appellant, Kevin Duane Drisdale, James
Bradshaw State Jail, P.O. Box 9000, Henderson, TX
75653 on the 24th day of August, 2015.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
20