*2 testified: LIVINGSTON, Before DAUPHINOT and Q. And he had not violated other BRIGHAM, JJ. your knowledge law to at the time stopped him? OPINION ON REHEARING stopped A. Not until I him. DAUPHINOT, Justice. Q. Okay. You had —in other words your stopping him sole reason was he grants This court the State’s motion for coming of a dark area and was rehearing in this and denies the State’s night? 10:25at rehearing motion for en banc. The court is opinion by requested Suspicious why the relief A. nature of he was rehearing Why State its motion for should back there. back vehicle was However, there, opinions judg- my curiosity. be denied. that was judge sitting by judge. 1. This case was tried a former appointment rather than the elected trial review,
Q. curiosity Right. You had because it our own factual but we must deter- coming park finding sup- of a court’s 10:25 and area? mine whether ported by the If fact or findings record.4 know, stated, know, A. like I You filed, presume conclusions of law are not we *3 trees, when he out from the came behind findings that the trial court made the neces- my why drew attention a be would vehicle sary support ruling long those its so coming night there that late at all and implied findings supported by rec- are the that. ord.5 The trial court overruled the motion to suppress. The same of- evidence then reviewing court must review jury, Bayuk fered the before Officer the there entire record to determine whether testified voir dire: any any support are facts which lend Q. you illegal any activity Had seen at ruling can theory upon which the trial court’s you stopped
the time this vehicle? implied if the or actual sustained. And record, by findings the supported the A. In that area? appellate question court addresses Q. Mr. From Jones’s vehicle? improperly applied of whether the trial court A. I stopped Not until it. Finally, to the if the trial law facts.6 Q. Okay. speeding? He was not theory any of judge’s decision is correct No, A. he was not. case, it law must be sust applicable Q. posted no That area not admit- ained.7 tance, was it? appeals of must limit its review The court No, A. sir. rulings, of both as court’s words, Q. you saw was other what facts, legal significance those facts and the of simply a out toward the vehicle trial court to a determination of whether the highway illegal activity and no at'all? of Even if the court abused its discretion.8 just coming seeing A. a vehicle Not a appeals different re- would have reached out. sult, judge’s ruling is long so as the trial disagree-
within the
of
“zone
reasonable
ment,”
appellate
court
not inter-
should
Q.
any-
Had
seen this vehicle do
cede.9
thing
a
that would lead
to believe as
police
that
officer
he had committed an
investi
suspicion
The level
for an
of
illegal act?
considerably
proof of
gatory stop is
less than
No,
A.
sir.
the evi
wrongdoing
preponderance
a
of
hearing
dence,
demanding
that for
suppress
a
and is
than
less
evidence,
investigatory
probable
is
detention
the sole
exclusive
cause.10 An
the cir
permissible,
unless
trier of facts.2 The
of fact is the sole
not
trier
rely ob
upon
the officers
credibility
of
cumstances
which
of witnesses
suspicion that
weight
testimony.3
jectively support
reasonable
given
to be
their
It is not
actually is
has been or
job
appellate
engage
person
court to
detained
State,
539,
Romero,
(Tex. 6.
2. Romero
800
543
3. Jackson v.
443 U.S.
99 S.Ct.
2781,
(1979);
State,
61
820
L.Ed.2d 560
Geesa
Id.
State,
(Tex.Crim.App.1991);
S.W.2d
Gibbs v.
154
821,
(Tex.Crim.App.1991), cert.
819 S.W.2d
830
372,
(Tex.
State,
Montgomery
S.W.2d
391
810
denied,
1107,
1205,
U.S.
112 S.Ct.
117
reh’g).
Crim.App.1991) (op. on
(1992).
L.Ed.2d 444
Sokolow,
1, 7,
Romero,
at
S.W.2d
490 U.S.
States v.
United
(1989);
104 L.Ed.2d
S.Ct.
(Tex.App.—
5. Vela v.
Howe v.
816-17
pet.).
App.
pet.).
no
no
Austin
[14th Dist.]
—Houston
homes,
engaged
activity.11
expensive
soon will be
criminal
the creek were
some
suspicion
There must be a reasonable
which were under construction and some
activity
ordinary
officer that
some
burglarized.
which had been
occurred,
occurring
sugges-
or has
some
believed that
vehicle
person
tion to connect the detained
with an
coming
at that
from that
location
time
activity,
unusual
and some indication that the
because,
night
had no reason
be there
activity is related to a crime.12
testified,
just totally black
there.”
“It’s
down
The circumstances sufficient to raise
only,
lights
For that reason
he activated his
suspicion
taking place
conduct is
stopped
the truck.
*4
need not be criminal in
Rath
themselves.13
er, they may
in
include
facts that
some
Merely
leaving a
in the
dark area
measure render
the likelihood of criminal
nighttime
suspi
does not create a reasonable
greater
conduct
than it would be otherwise.14
justify detaining
cion sufficient to
and
evaluating
validity
In
stop,
the
we
depriving
liberty
him of his
even for the
totality
must consider the
of the circums
necessary
limited extent
to detect the odor of
tances.15
marijuana. The evidence obtained as a re
sult of this detention and search was ob
illeg
Detention based on a hunch is
tained in violation of the Fourth Amendment
Further,
if events are as consistent
al.16
to the
and
Constitution
United States
activity
with innocent
as with criminal activi
1,
article
section 9 of the Texas Constitution.
ty, a detention based on those events is
however,
inquiry,
unlawful.17 The relevant
Reviewing
light
the record in the
most
particular
not whether
conduct is innocent or
ruling,
favorable to the trial court’s
and with-
guilty,
degree
but the
suspicion
of
that at
a de novo
performing
of the rec-
review
particular
taches to
noneriminal acts.
ord,
deference,
great
and with
not
The record before us reflects that Jones
facts,
legal
historical
but also to the
conclu-
was
public park.
of a
Public
facts,
to
sions
be drawn from those historical
parks often have trees and bushes. Some
support
we find that
record
the
does not
the
parks have curfews. There are times after
sup-
of
court’s denial
Jones’s motion to
which it is
to enter or to remain in the
press. We can find no reasonable view of
us,
park.
The record before
re-
support
the record that could
trial court’s
the
flects that Jones had violated no such curfew.
conclusion under the correct law and the
therefore,
park,
Presence
the
was not in
light
facts reviewed
most favorable to
illegal.
and of
park
itself
from which
legal
its
conclusion.18
the trial
Because
the truck exited was not lit and did not
suppress,
court’s denial of
Jones’s
benches,
park
tables,
rooms,
contain
rest
therefore,
discretion,
constituted an abuse of
improvements.
testified that
third and fourth
of error are
Jones’s
past,
by people
the area had been used
sustained.
smoking marijuana,
alcohol,
drinking
minors
people having
Although
necessary
and
sex. He also
is not
to reach
mentioned
error,
that stolen vehicles had
fifth and
we
been abandoned
sixth
Additionally,
briefly
they
there.
in-
testified that across
shall address them
because
State,
308,
(Tex.
Sokolow,
8,
1585,
11. Crockett v.
803 S.W.2d
311
490 U.S. at
S.Ct. at
104
State,
Howe,
10;
Crim.App.1991); Delgado v.
718 S.W.2d
L.Ed.2d at
jurors during advised the voir dire had State objection allow and refused to State’s by reputation. Spe- that he knew of Sturns at represent as co-counsel Sturns to stated, cifically, juror just “Basically trial. through communication in the African-Amer- right to choose several, The of a defendant community having ican served guaranteed by article his own counsel know, things like that. Our boards While section 10 Texas Constitution.20 paths have crossed.” may a in a case not switch defendant criminal When that would the State asked whether anything last or do to counsel at the minute juror, he influence his service as a answered: through his manipulate delay or mean, couple “No. we’ve met counsel, has an abso choice of he otherwise legal times it was business other than attorney.21 right lute to choose his own less, hi, just It was more or how business. you doing. I’m his aware of brother and Although reflect the record does not know, just nephew general his talk and — allowing that act as co-counsel Stums to Nothing that do with law.” nature. to even slowed the interrupted would have justice in this asked that Sturns be allowed efficient administration trial, partici objected, not to participate to in the the State ordered Sturns He not to stating they pate any way in have struck that that would table, Fowler, pass to to a note juror, they if had known sit at the counsel Bob Sturns assist Mallory, anything or to do else to acting would The record co-counsel. Clinton,22 v. practice of defense. In Stearnes reflects that it was the lawyers Appeals made clear of Criminal and Sturns that one of the would Court one’s choos appear that the to counsel of own pick and the other one would ing constitutionally mandated. immediately thereafter the trial. That Stearnes, appointed eoun- the trial had judge, fact made known to the trial who court Const, (Tex.Crim. I, VI; Holloway v. S.W.2d 787 amend. Tex. art. U.S. Const, App.1989). § Phetvongkham (Tex.Crim.App.1989) S.W.2d refd, pet. (Tex.App. Corpus un- Christi — (orig.proceeding). filed). timely ref'd). represent Unhappy App. pet. sel the defendant. Dist.] [1st —Houston actions, attorney’s with the appellant’s right employ the trial court The counsel must sought attorney to remove the over the ob- against “important be balanced consider jection of both the defendant and his attor- relating integrity judicial ations ney. The Court of Criminal held process orderly the fair administra Knize, that authority the trial court was justice.” without tion of Kozacki v. attorney deprive remove the or to orig. the defen- (Tex.App. —Waco dant attorney of an who has either been proceeding). appointed represent him or who he has reasons, I respectfully For these concur in hired, provided attorney is otherwise opinion the result and the of error qualified. The action of the trial court violat- only. three and four ed the clear mandate of article section 10 of the Texas Constitution and the Sixth
Amendment to the Constitution of the United
States. Jones’s fifth and sixth of er-
ror are sustained. judgment of the trial court is reversed
and the cause is remanded for a new trial. LIVINGSTON, J., concurring filed a Guadalupe SANCHEZ, Jimenez
opinion. Appellant,
LIVINGSTON, Justice, concurring. *6 disposition I concur in the of the third and Texas, Appellee. The STATE fourth regarding of error the denial of No. 08-94-00159-CR. appellant’s not, suppress. I do necessary believe it is to reach the Texas, Court of fifth and sixth of error because the El Paso. being ease is remanded for a new trial. Al- dicta, though only agree also do not
the conclusions majority reached
points of error five and six. six, of error five appellant right
claims his to counsel under the Sixth
Amendment to the Constitution of the United I,
States and under article section
Texas Constitution plead was denied. The
ings Mallory show that Carl E. represented
appellant. Mallory Mr. conducted the voir
dire behalf of his client and was intro
duced to the appellant’s attorney.
Only day on the next as the trial was about begin Mr. bring did ask to in his
“partner,” Sturns, Judge Louis as co-counsel. prosecutor objected stating that had he Judge
been aware trying Sturns would be peremp would have exercised a
tory challenge against a venireman who ad knowing
mitted Sturns. While the
employ exists, choosing counsel of one’s own unlimited, unqualified right. is not an
Childress v.