Case Information

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RECEIVED

OCT 192015 DENISE PACHECO, CLERK EIGHTH COURT OF APPEALS

NO. 09-14-00114-CR ORIGINAL IN THE COURT OF CRIMINAL APPEALS OF TEXAS

ANDROO KEN STEWART V.

STATE OF TEXAS

RECEIVED IN COURT OF CRIMINAL APPEALS OCT 262015 ADEIACOsta, Clerk

ERUM THE 396th DISTRICT COURT TAKRANT CONITY, TEXAS THE ANDRABLE GEORGE CALLA GREE, RESIDING CANSE NO. 12949060

PETITION FOR DECRETONARY REVIEW

FILED IN COURT OF CRIMINAL APPEALS OCT 29255 Abel Acosta, Clerk

*2 (a) Table of Contents

PAGE Under of Authorities (b) ..... 2 Statement Regarding Real Argument (c) ..... 3 Statement of the Case (d) ..... 3 Statement of Procedural History (e) ..... 4 Ground Pav Review (9) ..... 4,5 Argument (g) ..... 5,6,7,8,9 Unreasonable Suspension that Red to a Croftice Step: Fraser Pav Relief (h) ..... 9 Appendix (i) ..... 9

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(b) Under of Authorities

CASES $AAGE$ ALAGAMA V. WHITE 494 U.S. 325,1050E.2412,1101.Ed.2d.301 (1990) - - - 7

BALENTINE V. STATE

715 W. 3d. 763 (Ex.CE.AR.2002) - - - - - 5 Clemens V. STATE 405.5 W. 2d. 567 (Ex.CAim.AR. 1930)

GARRIA V. STATE 43.5 W. 3d. 527 (TEX.CR.AR.2001) - - - - - 6

FRAGH V. STATE

939.5 W. 2d. 201 (TEX.APg.AVSTW/1971 report) - - - - 7 REYNOLDS U. STATE 962.5 W. 2d. 307 (TEX.APg. Pmwww01999, put.1964) - - - - 7 ROJAS V. STATE 797.5 W. 2d. 41 (TEX.CEim.APg.-1990) - - - - 8

*4 (c) Statement Regarding Oval Argument

Appellant contends that oval argument pertaining to this petition would be helpful because a legal argument by an experience attorney will convince and persuade this court to decide the legal issue whether the tual court eved in denying Appellant's motion to suppress the evidence obtained from the stop of appellant based upon lack of reasonable suspicion from the stop.

(d) Statement of the Case

This is a petition for discretionary review from a conviction and sentence following a sury trial of the appellant in the 3400 Aristotel Court of Abroad County, ideas. Appellant was indieted for possession without to deliver a controlled substance of fowegray, but less than 200 grams. Appellant was convinced of the lesser included of the subject of possession of a controlled substance of fowgray, but less than 200 grams. Appellant was sentenced to 35 yrs. T.D.C. J. The appeal centers around the tual court is denial of the appellant's motion to suppress. The motion asserted there did not least reasonable suspicion to pabdy stop appellant's vehicle. The stop of the vehicle was based on observations of otherwise legal activity and information received from an adpugmony top. The trial court denied the appellant's motion and all objections associated with it.

*5 (e) Statement of Procedural History

Appellant will verify that the Honorable Court of Appeals rendered Judgment affirming the judgment of the trial court with the Synuph of the 20th district of Texas Court of Appeals on September 14, 2015 regarding Court of Appeals number 05-14-00114-CR and 3 trial Court Case number 12947060. Appellant contends there was no date for any motion for rehearing being filed on motion for rehearing being overruled! (f) Around For Review

Grouvo I (DVE) unreasonable Suspicion Chated to a Graffic Stop

It is generally accepted as true that persons are protected from unreasonable searches and seizures through the Youth and tourteenth Comendments to the U.S. Constitution and Article 1, Section 9 of the Texas Constitution. Under these provisions, a search conducted without a warrant isverse unreasonable and therefore illegal under Cboth constitutions unless the State shows proof of a valid exception to the warrant requirement. As issue is the validity of the vehicular stop of the appellant following subwellance of his vehicle based upon an anonymous tip. Case enforcement officers were advised to meet in the pitching lot of a Tenth restaurant by an unidentified individual. They were advised to look for a black Car. What observing a black car in the reference parking lot,

*6 Offices surweilled the car. The suwerellance of the vehicle produced obverations of otherwise painful activity. The anonymous tip amounted to nothing more than an unsubstantiated tip without any competent evidence that illegal activity was being observed. The only evidence that the law enforcement possess is that two individuals approached the vehicle and then quickly left. This is not enough evidence to establish responsible suspicion to stop appellants vehicle. Therefore, all evidence siged by law enforcement following an unilamful stop should have been supprelded because of unreasonable search and seizure. (9) Argument

Grovind (ONE)- unreasonable suspicion that ded to a strofes stop: Appellant contends that unless the lawenforcement officer has paid reasonable suspicion to believe an individual is violating the law; a temporary detention is unilamful. BABENTINE V. STATE, 1954. 3d. 763 (2m. Dr. App. 2012). Appellant argues that the evidence is insufficient to give the enforcement officer paid reasonable suspicion because the shovellance that was conducted did not contion accurately that any illegal activity took place. Appellant declares that the suwerellance took place from a distance that could not accurately reflect what lawenforcement believed to occurred. As was stated in trial, the law enforcement officer was unable to

*7 testily as to which side of the car that the supporty individuals who approached the vehicle, in the parking lot went to. With this inability to testify clearly about which side of the car was approached by the individuals is an indication that what the law enforcement testified about what appeared to be some sort of transaction was misinterpreted. Reasonable suspeision only exist where the officer has special status, that when confirmed with national conference from these facts, lead the officer to reasonably conclude that a particular person actually is, has been an soon wile he engaged in criminal activity. GARC/AA. STATE, 43 S.U.Sd. 527 Box. Gr. 2292.3601). Copelant will show that there are some instances involved that can express that it is un- reasonable to conclude that copelant was engaged in any criminal activity. Copelant states that being stopped that it was plain to see that copelant had been a patron of the A&W store because of a A&W cup found in the console of the car. Sickened, the law enforcement officers did not detain the individuals that had been implied to have approached the copelants car for any contraband. Similarly, upon being detained, your enforcement officers did not find any contraband on ap on a specific, was confiscated was only found after the dismantling of the interias of the cash console. This concealed contraband could not be readily accessible for any distribution of the contraband drug. Copelant will argue that there was no reasonable suspicion that could have dissoluted that would indicate that any illegal

*8 activity occurred. Therefore, appellant declares that this isoneasonable suspicion caused an unreasonable search and seizure conducted without a warrant and without probable cause is a violation of appellant's fourth and fourteenth Amendment cons. titional, right where the basis for the search and seizure should be found unreasonable and the evidence obtained should have been suppressed and not used to prove that reasonable suspicion existed to stop appellant.

Appellant alleges that counts have left that while an anonymous trip will certainly justify the indication of a police investigation, it is likely enough to establish the request. label of suspicion necessary to establish an investigation alteration. HABAMA V. MAITE, 496 U.S. 3R5, 329.105.CT. 2412,110L,Ed. 2d 301 (1990); CEEMENS V. STATE, 605 S.W. 2d 567, 570 (Jer. Crop. App. 1980); REYNOLDS V. STATE, 962 S.W. 2d 207, 511 (Jer. App.-Amarillo 1998, pat. Refd.); PHENY V. STATE, 939 S.W. 2d 201, 203 (Jer. Crop. Austin 1997). Appellant asserts that law enforcement officers testified that they obtained a phone number, belonging to a male only known as BLACK, a distributor of thein in the area. The phone calls to and from BLACK can be characterized as nothing more than an anonymous trip. What appellant will argue in regard to this anonymous trip is that he has produced phone records that has shown that he does not have any phone number in all of the three phones that were confiscated. showing any incoming or outgoing calls to the phone used by the law enforcement officers to contact BLACK.

*9 It is clear there did not exist the level of detail and reliability counts require to substantiate an anonymous two as the basis for reasonable sus- tient for a step and whatever evidence obtained should have been suppressed. Explicit mantains that the Court of Criminal Appeals determined the information provided in an anonymous two was insufficient to establish suspicion given the fatality of the circumstances in RDXAS N. 57A7E, 797 S.W. (2d 41 (Jer. Cirm. App. -1990). Expeclant assereto that the anonymous two was insufficient to establish suspicion because the law enforcement officer considered that the phone number obtained from the anonymous two belonged to the appellant and in this Court it had concluded there existed no personal knowledge of contig band, so that the information had any personal knowledge of any specific additional facts upon which policy could reasonably conclude was sufficient to establish reasonable suspicion. In summary appellant has demonstrated that there was no contact to either of his phones to show that any calls were received from lawinforcement officials and that the identity of BLACK has never been associated with appellant. As a matter of just BLACK's identity was later recovered to be the identity of appellant's co-defendant. As such, the step of appellant's vehicle was unlawful and did not consists of knowledge of facts and circumstances sufficient for themsclued to warrant belief that a reasonable suspicion existed to stop appellant.

*10 Without probable cause and the autbergation to conduct a search without a search wavert. (A) Prayer for Relief

The appellant wasprosecuted and convicted for the expense of Harassion of a Controlled Substance of merethan foun grams but less than 200 grams. The bual court tried for denying the appellant's prehnal motion to Suppress on the ground of a lack of reasonable suspicion to stop the appellant's vehicle. The evidence relied upon by law inforement was a pague anonymous to about nothing more than an automobile in a restaurant parking lot, and subsequently, no aberration of illegal activity. Considering the totality of the circumstances, there existed insufficient evidence to establish reasonable suspicion to stop the appellants vehicle.

Wherefore, for the foregoing reasons, appellant request his confection believed, the case remanded back to the trial court with instructions to grant the suppression motion, and consequently thomins the case for lack of evidence, and for any and all other relief to which appellant is yultly entitled. (i) Appendix

Appellant continds that the requirement that the petition must contain a copy of any opinion of the court of appeals cannot be compiled with because appellants confined in T.O.C.I. and so unable to have access to a option.

*11 INMATES DECLARATION I, involved here, Stuanth * 1915287 , and the appellant and, living presently incarcerated in BETO UNIT KMI EM. 3328, Tennessee, Colony, N. 25880, declare under penalty of perywy that to my belief, the facts stated in the above petition for thiscretionary review are true and correct.

Respectfully Submitted, Signed on October, 10, 2015. Audited Stuanth Signature of Appellant.

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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ANDROD KEON STEWART, Appellant, v.

THE STATE OF TEXAS, Appellee.

No. 08-14-00114-CR $\S$ Appeal from 396th District Court of Tarrant County, Texas (TC # 1294906D)

OPINION Androd Keon Steward appeals his conviction of possessing more than four grams but less than 200 grams of heroin, enhanced by two prior felony convictions. A jury found Appellant guilty, and the trial court found both enhancement paragraphs true and assessed Appellant's punishment at imprisonment for a term of 35 years in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

VALIDITY OF THE STOP

In his sole issue, Appellant asserts that the trial court erred in denying his motion to suppress because the officers lacked reasonable suspicion for the stop.

Factual Summary

The trial court conducted a pretrial hearing on Appellant's motion to suppress, but the parties re-litigated the suppression issue during trial on the merits. Consequently, our analysis will be based upon the evidence introduced at both the suppression hearing and trial. See

*13 Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App. 2007); Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996).

Jeffrey Jones is employed by the Tarrant County Sheriff's Office as a narcotics investigator. Jones received a telephone call from an informant who stated that an individual known as "Black" was distributing heroin in the area. Jones knew the identity of the informant but he did not reveal the name in his testimony and he did not specify whether the informant had given reliable information in the past. ^[1] According to the informant, a person could call Black and say he needed to meet him, and Black would tell him where to meet one of his "runners" or employees to buy heroin. The informant also provided Jones with Black's telephone number. On July 12, 2012, Jones called the number he had been given by the informant and told Black that he needed to meet. Jones identified himself using the name of a person who had previously purchased drugs from Black, and Black acted as though he knew him. Black told Jones to go to Loop 820 and Sun Valley. The phone disconnected before they finished the call. Black called Jones back and told him to go to the A & W restaurant located at Loop 820 and Sun Valley and look for a black car. During this call, Jones did not explicitly ask to purchase heroin, but he knew from the tip that Black was selling heroin, and he understood that by asking to meet he was using the code for buying heroin. Deputy Jones, Lieutenant Kevin Turner, and two other investigators went to the A & W restaurant to locate the car. They arrived about ten minutes after Jones spoke with Black and saw a black 2006 Chevy Cobalt in the parking lot. It was the only black car present at the A & W when the officers arrived. Turner went to the west side of Loop 820 where he could keep an eye on the vehicle. On two different occasions, Turner watched an individual drive into the parking lot, get out of the car, and approach the Cobalt. In each instance, the individual leaned on the open window, engaged in a hand-to-hand transaction

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with the occupants of the car, and immediately left the area without going to the drive-through or into the restaurant. Turner could not see what was being exchanged, but each transaction lasted five seconds or less. He testified that this type of activity is consistent with narcotics sales. The Cobalt left the parking lot and law enforcement officers maintained visual contact with the vehicle until Deputy Charles Wiesman stopped it. Wiesman walked up to the driver's side and made contact with the driver, Appellant. He immediately smelled the odor of marihuana coming out of the open driver's window. Officers searched the vehicle and found thirteen individually wrapped baggies of heroin and a small quantity of marihuana in the console.

Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). We must give almost total deference to the trial court's resolution of questions of historical fact and of mixed questions of law and fact that turn on the weight or credibility of the evidence. Derichsweiler $v$ . State, 348 S.W.3d 906, 913 (Tex.Crim.App. 2011); Arguellez v. State, 409 S.W.3d 657, 662 (Tex.Crim.App. 2013). Appellate courts review de novo mixed questions of law and fact that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Arguellez, 409 S.W.3d at 662; Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App. 2013)("We review de novo a trial judge's application of the law of search and seizure to the facts."). We review de novo whether the totality of the circumstances is sufficient to support an officer's reasonable suspicion of criminal activity. Arguellez, 409 S.W.3d at 663.

Reasonable Suspicion

An officer making an investigatory stop does not need to have probable cause to believe the suspect has engaged in criminal behavior because the Fourth Amendment demands only that

*15 the officer have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979); Young v. State, 420 S.W.3d 139, 142 (Tex.App.--Texarkana 2012, no pet.). A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Derichsweiler, 348 S.W.3d at 914. Reasonableness is measured in objective terms by examining the totality of the circumstances. Young, 420 S.W.3d at 142. Consequently, the actual subjective intent of the arresting officer is disregarded, and the reviewing court considers whether there was an objectively justifiable basis for the detention. Derichsweiler, 348 S.W.3d at 914. Even though the circumstances may seem innocent when considered in isolation, if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified. Id. In assessing reasonable suspicion, a reviewing court looks to the totality of objective information known collectively to the cooperating officers. Derichsweiler, 348 S.W.3d at 915; Arguellez, 409 S.W.3d at 663.

A confidential informant can provide the requisite reasonable suspicion to justify an investigative detention so long as additional facts are present to demonstrate the informant's reliability. Smith v. State, 58 S.W.3d 784, 790 (Tex.App.--Houston [14th Dist.] 2001, pet. ref'd). In this regard, "the informant's veracity, reliability, and basis of knowledge are highly relevant." State v. Sailo, 910 S.W.2d 184, 188-89 (Tex.App.--Fort Worth 1995, pet. ref'd). In a case involving the use of an informant, the court must consider the informant's reliability in analyzing the totality of the circumstances. Smith, 58 S.W.3d at 789. An informant's reliability can be established through evidence that the informant is known to the police and has provided credible

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information in the past. See Carmouche v. State, 10 S.W.3d 323, 326 (Tex.Crim.App. 2000); Smith, 58 S.W.3d at 790; see also Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)(explaining that information obtained from informant who has been used before is stronger than anonymous tip). Additionally, reliability can be established by the presence of details relating not only to easily obtainable facts and conditions existing at the time of the tip, but also to future actions of third parties not easily predicted. See Illinois v. Gates, 462 U.S. 213, 241-46, 103 S.Ct. 2317, 2333-36, 76 L.Ed.2d 527 (1983); Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

Appellant's Arguments

Appellant contends that the officers did not have reasonable suspicion to stop his car because the phone call to "Black" amounted to nothing more than an unsubstantiated anonymous tip and the activity observed by the officers at the A & W was "otherwise lawful activity." There is no evidence in the record to support an inference or finding that the person known as Black was making an anonymous tip regarding criminal activity to the policy. To the contrary, all of the evidence in the record reflects that the police were investigating Black for distributing heroin.

This investigation began when a confidential informant told Investigator Jones that a man known as "Black" was distributing heroin in the area. The informant also gave him Black's phone number. Jones called that number and spoke to Black while identifying himself using the name of someone who had previously purchased drugs from Black. Black acted as though he knew Jones. Jones told him only that he needed to meet, which Jones understood from the informant to be code for buying heroin from Black, and Black told him to go to a specific location and to look for a black car. Jones and other officers went to the A & W and they found one black car in the parking lot. The officers watched the black car for a while and observed

*17 what they believed, based upon their training and experience, to be two separate drug transactions involving the occupants in the black car.

The record before us contains evidence demonstrating that the officers corroborated important details of the tip indicating criminal activity on the part of the occupants of Appellant's black Cobalt. Significantly, the tipster accurately predicted that Black would give Deputy Jones a location where he could purchase heroin from Black's runners or employees. The officers corroborated that aspect of the tip by traveling to the location and observed what they believed based upon their training and experience to be drug transactions. Thus, the officers independently corroborated the tip with respect to future actions by third parties. Based upon the totality of the circumstances, we conclude that the combination of the corroborated tip and the officers' observations of what they believed to be drug transactions established reasonable suspicion for the investigative detention of Appellant's vehicle and its occupants. See Sailo, 910 S.W.2d at 189-90; see also White, 496 U.S. at 331-32, 110 S.Ct. at 2417 (where police received anonymous tip that woman was carrying cocaine, reasonable suspicion existed where police independently corroborated details of the anonymous tip, including the description of the woman, the timeframe in which the tipster predicted she would leave the apartment building, the car she would be driving, and the hotel where the woman would go); Glenn v. State, 967 S.W.2d 467 (Tex.App.--Amarillo 1998), pet. dism'd, 988 S.W.2d 769 (Tex.Crim.App. 1999)(reasonable suspicion existed where anonymous informant told police he had seen drugs in defendant's car and predicted defendant would leave his apartment in vehicle within a couple of hours, informant's information was consistent with other information known to officers about defendant from other informants and another police officer, and officers corroborated every aspect of tip except presence of drugs before detaining defendant). We overrule the sole issue on appeal and

*18 affirm the judgment of the trial court.

September 16, 2015 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)

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NOTES

${}^1$ There is evidence in the record that the officers did not want to reveal the identity of the informant.