*1 indigеnce her and to to amend affidavit MEEKINS, Appellant, David indigence But on O.
reconsider her claim.” two, page analysis after a detailed affidavit, an deter- constitutes Court Texas, Appellee. The STATE that no affidavit had been filed. mined goes on to “Appellant The Court state No. 07-09-0144-CR. ” an indigence.... file affidavit of of Appeals Texas, Court Thus, view, in the Court’s is not about this Amarillo, an amending filing affidavit but rather Panel B. one. what constitutes end, proceed In the I would to obtain Dec. 2009. the trial court’s states evidence order Discretionary Review Granted that it was based we are and which April review, statutorily obligated to which is trial,” presented
“the evidence at [] attorney representing
then order the each
party, including attorney representing
toMary, brief the issues of court’s the trial on
ruling indigency pur- and frivolousness authority expressly given
suant Family
us in the Code. Tex. Ann. Fam.Code (Vernon 2008) (The § 263.405(g) appellate “may require to file parties
pellate briefs on the presented.”). issues not,
Because Court does and for the par-
reasons stated above in which I find portions
ticular order in Court’s
error, I respectfully dissent.
Finally, if I going abate this
appeal to the trial any hearing, court for be for a
would determination whether
Mary had failed to diligently proceed with so as to appeal avoid dismissal for prosecution by
want of to ap- her failure
pear post-trial hearing, and other including timely
actions her failure to com- attorney.
municate
her
Bush v.
no
Stavinoha v.
(Tex.App.-Waco
no pet.); Peralta v.
no
Opinion BRIAN Justice. QUINN, Chief pled guilty David 0. Meekins and was two possessing convicted of or less ounces after the court denied suppress. his motion to Whether the trial acting properly acted is now us. before Meekins believes the mo- granted tion have been should because the arresting unreasonably pro- detention, longed his his positive search vehicle was neither unequivocal. reverse the judgment. We Background, January approximately On p.m., Tony 11:00 Officer Williams observed companion depart and his from a drug house purportedly activity. known house, When arrived at the they long how stayed, and their reason for being officer, there were unknown to the and are Nonetheless, upon unknown seeing to us. them and walk to leave abode a vehicle block, the officer down recruit decided to followthem. driving away, appellant After made a turn This signaling. resulted initiation of a and the approaching officers the vehicle. Accord- Williams, ing to both of the vehicle’s occu- pants nervous. This conclusion appellant moving derived from around passengеr his seat while the remained Nonetheless, acquired ap- still. license, pellant’s driver’s checked it for warrants, outstanding returned Nothing vehicle. record discloses Espino, The Kristopher P. Law Offices subject whether appellant was the Lubbock, L.L.C., Wardroup, L. Richard arrest warrant. Nor does the illus- record TX, for Appellant. information, any, trate the officer Shadle, Kollin Assistant Criminal Dis- running appellant’s obtained as a result of Lubbock, TX, trict Attorney, Appellee. Yet, license. it is clear that re- car,
turning to appellant’s
he solicited con-
C.J.,
QUINN,
Before
and CAMPBELL sent to
it. That solicitation
contin-
HANCOCK,
period
JJ.
ued over a
of about a minute and
approximately
requests.
sought
included
six
the time the officer
many
officer asked that
times because
search the vehicle. See Kothe v.
way
would not commit one
or the
pellant
63-64 (Tex.Crim.App.2004)
*3
Indeed, captured
other.
on the video of
(stating that
traffic stop, police
routine
appel-
event
officer informing
the
was the
may request
officers
certain information
that he
asked a
or no”
“yes
lant
was
driver,
from a
such
aas
driver’s license
Furthermore,
question.
the last
registration,
and car
conduct a
apрellant
propounded to
consisted of
computer
information,
check on that
you
“Do
look?”
asking:
Williams
mind if I
after
computer
this
is completed,
check
it, appellant
“yes,”
To
according
answered
and the officer
this
knows that
driver has a
Upon
replying,
to the officer.
so
currently
license,
valid
no outstanding
was ordered to exit
car.
warrants,
stolen,
and the car is not
vehiсle,
As
he left
traffic-stop investigation
fully
resolved
place
hand in
peared
pocket.
This
end). Rather,
and the detention must
resulted in
grabbing appellant’s
controversy before us involves whether ap
hand and
asking permission
search the
search,
pellant consented to the
and that is
pocket.
content of his
Therein
found
was
the question we
here.
address
for which
was
prosecuted.
When relying
consent
Law
search,
justify the lawfulness of a
the State
applicable
standard of review dis
prove by
clear
convincing
evi
State,
cussed
Ford v.
Application of you asking from one “would described, the video previously “may to one I search.” asking mind” revealed that Williams asked Yet, authority this court and denies both Appellant’s about six times. for consent engaging initial factfinder from replies to solicitations were first five those given support- the absence of and so much resulted evasivе ing evidence. inqui informing in the officer him that the or no The offi ry “yes question.” was a Simply put, the situation before us is hear a “no” answer “yes” cer’s desire to facts are in one historical *4 appellant “yes” until or “I continued said they put dispute, They are not. were to the last Because guess” solicitation. by to rest both the video and Williams’ evinced to allegedly that utterance vid- confirmatiоn what on the consent, and unequivocal” “clear Williams eo. What was said and done was said and appellant ordered to exit the vehicle. done, can nor questioned neither comes, however, problem in the na The Thus, we changed. merely are left question appellant said ture to which undisputed to the law applying facts guess.” “I “yes” or consent, regarding that a task un- and “may had The officer not asked undertaking novo. dertaken de rather if I you search” but “would mind hold, task, law, that we as a matter Answering look?” to the latter “yes” clearly convincingly State failed to appellant that meant did mind. Answer- appellant that prove granted the officer “I ing guess” also and has like con- had positive, unequivocal, voluntary con- is, notation; “I in re- saying guess” to search his sent car.1 sponse being to minds asked one something whether can well indi- happens Despite our that the is conclusion appel- cate that he does. add To this we consent, us sue before involved there is prior response lant’s in to evasiveness regarding some allusion brief State’s persistence asking the officer’s for con- suspi whether the officer had reasonable combinеd, sent. When the circumstances engaged cion to believe some picture unequivo- not a paint clarity or drug appellate crime. State’s counsel cation rather one of vacillation downplay dur proposition tended hesitance. More importantly, some- argument ing oral but to the extent entirety how conclude from conceded, was not matter we will address sаying “I “yes” guess” scenario or First, briefly. it of no know meant that finally acquiesced holding simply seeing someone leave the search invites into various house” p.m. “narcotics at 11 and enter matters. Those matters consist gives car down the block rise to whether failed to listen to the Williams, suspicion reasonable to believe that crimi specific question asked activity any. is afoot. ignored whether he the last and nal Nor did we find Indeed, opted previously pro- appears to answer those true opposite concluding, day ly respond equates we leave for another to an solicitation officer's questions consent, answers to whether a such as whether an refusal respond "yes” detainee must "no” to a or temporary detention continue a searсh, 2) request whether an officer responds until the detainee to a all, 3) require respond a detainee to wheth- acceptable search in an manner. say yes er a detainee’s reluctance to or direct- in an known for its when high area the house “worked” or when the night permit crime at alone an arrests were Both made. events could e.g. officer to detain the traveler. See happened weeks, months, have days, or years Klare 73-74 earlier. Nor does the record dis- 'd). App.-Houston Dist.] ref [14th close either when department the narcotics issued the “sheet” used Williams or Furthermore, having charac- acquired when he actually Thus, it. terized conduct as akin to “al- information in it well could have been stale trying most like were sneak down especially sinсe it was disbursed every six the block” moment. is of no This is so months or longer.” “sometimes We see no since establishing suspicion reasonable re- reason why the timeliness the data on quired presentation of articulable police rely should be of less “facts.” Scott v. importance in the reasonable suspicion 172 (Tex.Crim.App.1976). Labeling the equation than it is when determining the conduct of colleague as existence probable cause for purposes of sneaky sneaking opinion is an founded securing a search warrant. e.g. Blake fact, on *5 opining but the officer failed (Tex. App.- which permitted disclose the facts him Houston pet.) [1st no (noting Dist.] reasonably opinion. So, the develop the timeliness of the information as a fac- opinion probative officer’s had no value warrant). tor to issuing consider when the overall equation. repeatedly ut- Time making has the effect of the informa- tered Sargent Friday, “just Joe So, tion stale in both situations. without please facts ... just the facts.” our knowing the of the age “facts” under- That the officer also characterized lying the observation abode was a pellant’s parking suspi- down the block as house,” “nаrcotics label is of little help. cious is also of little value. This is so because he thought that one engaging Finally, we address observation that innocent conduct would have in the further permissible detention was also be- empty driveway given the inclement cause appellant and his passenger ap- Yet, weather. defense counsel had him peared Again, nervous. Williams so testi- admit that he did not know when fied. He upon also disclosed the facts house, arrived at the him see enter which opinion. They he derived that con- it, long did not know how remained appellant moving sisted of around while his house, know did not whether the passenger Though remained still. ner- driveway empty was when appellant ar- indicia, vousness can be a relevant Illinois Indeed, rived. the officer also concluded Wardlow, U.S. S.Ct. that he merely “speculating.” (2000) (so 145 L.Ed.2d hold-
As for allegation ing), that necessarily location that is not true here. from exited was a “narcot- This is so 22” because of “Catch nature house,” ics Williams based that of the Irrespec- conduct observed. “sheet” that department the narcotic’s tive of whether those the car sat still or “put’s months, around, six every [sic] out moved some- еither mode of conduct de- longer” times his having picted according “worked nervousness to the offi- the house before” and “worked with cer. Quinn years ago, offi- As Mrs. once said cers at that “you ways.” house ... made narcot- can’t [who] have it both While we But, ics arrests ... probative from that house.” do not want nullify value record illustrating may contains no evidence on the place indicia of ner- common, natural, request once the reason ting such vousness, it is rather ended, which includes the two it when has to exhibit everyone for most That be be cited the dissent. officers. This cases by police stopped Appeals has them or the our Court of Criminal respect accorded because due some reached, point and au- has been power have held that once that that realization ordi- available to an be released. Kothe beyond suspect thority reason, citizen, Asking de- some- whatever at 63-64. nary enforcement grant hands of law consent to at the one who has failed to tention even a bit of dread repeatedly often instills car or solicit- personnel to exit the This, cou- of the innocent. nothing doing in the hearts more than ing consent is any that most possibility pled with in Kothe. Once the basis prohibited nervous, tends be deemed conduct now can longer exists and the detain- for a no factor. the value search, discredit to a he must ee has not consented here, we hesitate as the indicia cir- there exists other released unless needed to in the engage cause or evincing probable cumstances opposite conduct as contrasting or view the deten- suspicion to continue reasonable thing of the same indicative tion. why that is. explanation as succor in the dissent’s Nor do we find sum, us does not record before discovery contra- suggestion objectively conclude permit one to merely band was lawful because leaving the “narcotics house” By of his pocket. consented the search provided Officer nervous appearing *6 time, justification for the the initial suspicion to de- with reasonable time, By stop had ceased. So, cannot be a basis appellant. tain already subjected repeated had been purpose once justifying for detention by for leave to search one officer requests (ie. investigating the original stop fоr the nearby. another armed officer stood while violation) traffic ended. time, appellant had illustrated his By that Dissent permit if refusal to a con- reluctance not Camp
Concerning the dissent
Justice
time,
By that
he had been
sensual search.
following.
bell,
say the
respectfully
we
the car
an officer who
ordered to exit
First,
may ask
it
clear that an officer
is
to search.
unequivocal permission
lacked
a vehicle after
permission
one for
to search
time,
reasonably inter-
By that
one could
ends.
stop
the initial
purpose
as indicative of
pret the officers’ conduct
(Tex.
State,
486,
491
S.W.3d
Strauss
until
to continue the detention
their intent
ref'd). Yet,
2003,
App.-Amarillo
pet.
way.
acceptable
in an
appellant answered
authority
permitting
have not found
time,
But,
рassed
only
seconds had
to hold the detain
personnel
enforcement
being applied by the
pressure
between the
to search.
gives
until the latter
consent
ee
officer,
get
order to
the latter’s unfounded
continuing
for
Again,
justification
car,
“consent” to
appellant’s
out of the
delay
gone
any
further
detention is
These circumstances
pocket.
search the
pоlice
A
necessarily be consensual.
opportunity for
negate the existence of
to answer his
directing
person
necessary for there
thinking
reflective
exchange.
hardly
is
a consensual
between the officer’s
be
attenuation
receipt
of con-
Second,
improper
conduct
be able
while
vehicle,
pocket.
sent to search the
step out of the
аsk a detainee to
attenuation,
id.,
satisfying
prerequisite
permit-
cites no
the dissent
voluntary.
garding
Appellant
is not
consent.
and the
appellant’s
State
State,
688,
disagree
over
effect of
Stone
ref'd)
“yes” or “I
(holding
guess” response to the officer’s
pet.
App.-Amarillo
question,
last
and the Court finds it insuffi
be
an unlaw
that consent
valid after
unequivo
cient to demonstrate appellant’s
ful
thеre is sufficient attenuation
consent).
voluntary
cal and
This latter
between
Accepting
car.
the Court’s conclusion as
negates
sug
observation also
dissent’s
correct, surely the
permit
same evidence
gestion
appel
that we found the search of
ted the trial court to
conclude
consensual.
pocket
lant’s
refuse the officer consent to search
reversеd,
Accordingly,
judgment
Olguin
car.1
No. 08-02-
and the cause
remanded
0241-CR,
(Tex.App.-El
press. Because
spectfully dissent. SPEEGLE, Appellant,
Larry Dean HEALTH METHODIST
HARRIS Harris Methodist
SYSTEM Worth, Appellees.
Fort
No. 2-08-228-CV. Texas, Appeals
Court
Fort Worth. 17, 2009.
Dec.