# Kevin Duane Drisdale v. State

> Texas Court of Appeals, 3rd District (Austin) · August 26, 2015

URL: https://www.frixlaw.com/law-library/cases/4072211

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** August 26, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4072211

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4072211. Public record. Not legal advice.