PD-1646-14 COURT OF CRIMINAL APPEALS Oral argument requested AUSTIN, TEXAS Transmitted 1/15/2015 4:58:13 PM JANUARY 16, 2015 Accepted 1/16/2015 1:44:16 PM ABEL ACOSTA PD-1646-14 CLERK

IN THE TEXAS COURT OF CRIMINAL APPEALS _________________________________________________

DEON REESE EVANS APPELLANT

vs.

THE STATE OF TEXAS APPELLEE _________________________________________________

FROM THE FIFTH COURT OF APPEALS CAUSE NO. 05-13-00627-CR

APPEAL FROM THE 291ST JUDICIAL DISTRICT COURT OF DALLAS COUNTY, CAUSE NO. F12-28191-U, THE HONORABLE SUSAN HAWK PRESIDING _________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________________________________

BRUCE ANTON SORRELS, UDASHEN & ANTON State Bar No. 01274700 2311 Cedar Springs, Suite 250 [email protected] Dallas, Texas 75201 214-468-8100 (office) BRETT ORDIWAY 214-468-8104 (fax) State Bar No. 24079086 [email protected] Counsel for Appellant Ground for Review

Whether the affidavits supporting Evans’s arrest warrant and search warrant established probable cause to believe Evans murdered his mother, and that his DNA contained evidence of as much, re- spectively.

2 Table of Contents

Ground for Review ...................................................................................... 2

Index of Authorities .................................................................................... 4

Identity of Parties and Counsel ................................................................. 5

Statement Regarding Oral Argument ....................................................... 6

Statement of the Case and Procedural History ........................................ 7

Argument .................................................................................................... 9

The affidavits supporting Evans’s arrest warrant and search warrant did not establish probable cause to believe Evans murdered his mother, and that his DNA contained evidence of as much, respectively. ............................................................................................. 9

I. The information provided in the affidavits ................................... 9

II. What warrants a warrant .......................................................... 11

III. The information in the affidavits provided no more than a hunch ................................................................................................. 13

Prayer ........................................................................................................ 19

Certificate of Service ................................................................................ 20

Certificate of Compliance ......................................................................... 20

Appendix ................................................................................................... 21

3 Index of Authorities

Cases

Bell v. State, 724 S.W.2d 780, 787-91 (Tex. Crim. App. 1986) ............... 19 Brooks v. State, 76 S.W.3d 426, 431 (Tex. App. Houston [14th Dist.] 2002, no pet.) ......................................................................................... 12 Earhart v. State, 823 S.W.2d 607, 631 (Tex. Crim. App. 1991).............. 15 Evans v. State, No. 05-13-00627-CR, 2014 WL 6450278, *1 (Tex. App.— Dallas 2014)................................................................................. 8, 16, 17 Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) ................. 12 Gibbs v. State, 819 S.W.2d 821, 830–31 (Tex. Crim. App. 1991) ........... 16 Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004) ..... passim Hoag v. State, 728 S.W.2d 375, 378-80 (Tex. Crim. App. 1987) ............. 18 Illinois v. Gates, 462 U.S. 213, 239 n. 11 (1983) ..................................... 12 Jones v. State, 833 S.W.2d 118, 123-24 (Tex. Crim. App. 1992) ............ 11 Parker v. State, 206 S.W.3d 593, 596-97 (Tex. Crim. App. 2006) ...... 9, 13 State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012) ............... 12 State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011) .............. 12 Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005) ................ 13 United States v. Sokolow, 490 U.S. 1, 7 (1989) ....................................... 16 Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 564–66 (1971) ..................................................................................................... 12 Wong Sun v. United States, 371 U.S. 471, 479 (1963) ...................... 12, 18

Statutes

TEX. CODE CRIM. PROC. art. 18.01(b) ........................................................ 12 TEX. PEN. CODE §19.02 ............................................................................... 8

4 Identity of Parties and Counsel

For Appellant Deon Reese Evans:

B. WARD MAEDGEN Trial counsel of record 14135 Midway Road, Suite 250 Dallas, Texas 75244

BRUCE ANTON BRETT E. ORDIWAY Appellate counsel of record SORRELS, UDASHEN & ANTON 2311 Cedar Springs, Suite 250 Dallas, Texas 75201

For Appellee the State of Texas:

BRANDON T. BIRMINGHAM JEFF MATOVICH Trial counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE 133 N. Riverside Drive Dallas, Texas 75027

LISA SMITH Appellate counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

5 Statement Regarding Oral Argument

Evans believes oral argument will be helpful to this Court’s un-

derstanding of the Dallas Court of Appeals’s error.

6 Statement of the Case and Procedural History

Evans suffered from mental illness. (RR4: 66-67). Because of this,

he had a poor relationship with his parents, both because he blamed his

contraction of scabies on them, and because, “things [having] boiled

over,” they had cast him out onto the streets. (RR4: 38; RR5: 180, 184-

88, 215, 227).

On Sunday, April 1, 2012, Evans arrived unannounced at his

mother’s church and told her he wished to retrieve some belongings

from her home. (RR4: 39-41). A friend of his mother’s was troubled by

Evans’s conduct and appearance, and arranged to check on his mother

periodically throughout the afternoon. (RR4: 46-47, 62-63).

Evans’s mother quit answering her phone shortly thereafter.

(RR4: 48-51). Her friend called 9-1-1 at approximately 3:30 p.m., and

police soon found Evans’s mother deceased in her home. (RR4: 72-75,

133). A belt was wrapped around her neck, and there were no signs of

forced entry. (RR4: 75, 153).

The police then applied for, and received, an arrest warrant for

Evans and a search warrant for his DNA sample. Upon their execution,

the police learned that a pair of sunglasses similar to those worn by Ev-

7 ans were found underneath his mother’s body, a shoe print on her arm

matched those Evans wore, and DNA samples taken from the belt and

other items matched Evans. (RR4: 94, 119, 168; RR5: 81-82, 85-87, 89-

93, 196).

Evans was then indicted for murder. See TEX. PEN. CODE §19.02.

After failing in his attempt to suppress evidence stemming from his ar-

rest, including the DNA sample taken incident to that arrest, he plead-

ed not guilty but, after a six-day trial, was convicted. (CR: 48-52; RR2:

7, 44-45; RR6: 65). At the subsequent punishment phase of Evans’s tri-

al, additional evidence as to his mental illness was introduced, as well

as evidence of his previous convictions, all committed after his mental

health problems began. (RR6: 75-76). On this evidence, the jury as-

sessed a 99-year imprisonment sentence. (RR7: 36).

Evans appealed his conviction on two grounds. See Evans v. State,

No. 05-13-00627-CR, 2014 WL 6450278, *1 (Tex. App.—Dallas 2014).

The Fifth Court of Appeals rejected each, though, and affirmed his con-

viction, and no motion for rehearing was filed. Id.

8 Argument

The affidavits supporting Evans’s arrest warrant and search warrant did not establish probable cause to believe Evans murdered his mother, and that his DNA contained evidence of as much, re- spectively.

! ! !

Though the police certainly had cause to investigate Evans—he

was with the complainant in her home shortly before her murder, and

they shared a contentious personal history—these facts did not point to

him “like a beacon.” See Parker v. State, 206 S.W.3d 593, 596-97 (Tex.

Crim. App. 2006) (“Probable cause to arrest must point like a beacon

toward the specific person being arrested.”)). At best, the affidavits sup-

ported nothing more than a suspicion or a hunch on the part of the of-

ficers that Evans had committed the offense. (Br. at 16). The trial court

erred in determining otherwise, and then the court of appeals did, too,

as revealed by its strained mischaracterization of the evidence as tying

Evan “directly” to the complainant’s murder.

I. The information provided in the affidavits

9 The affidavit in support of Evans’s arrest stated the affiant be-

lieved that Evans “did then and there intentionally and knowingly

cause the death of [the complainant] by strangulation” because, in total:

On 4–1–12 at approximately 3:51 pm Officers were dis- patched to 1216 Blanco Circle on a concern for well fare call. Officers were told by the caller Marylin Acres that Resident Desni Bowie–Green was not responding to her phone or text messages and she was not answering her door. Desni’s car was at the location. The caller reported that Desni was hav- ing problems with her grown son Deon Reese Evans who had been violent to her in the past. The caller told police she was concerned something had happened to Desni while her son was there and now she was not able to get Desni to the door. Officers made entry into the house and found Desni was in- side the location deceased from apparent strangulation.

Detectives Worsham and Landis were notified and arrived on scene. Marylin Acres stated to the officers and Detectives that she had been with Desni at church earlier in the day and her son Deon was there with her. When church was over Deon got in the car with Desni. Marylin stated she asked Desni if everything was all right and if she wanted her to come to her house with her. According to Marylin, Desni stated no that she would be fine because she was just taking him (Deon) to the house to get the rest of his things. Marylin stated to Detectives that because of the violence in the past with Deon she and Desni agreed Marylin would call her on the half hour to check and make sure she was ok. Marylin told the officers she called Desni at 1:24 pm and Desni answered and said she was just pulling up at her house and Deon was in the front passenger seat of the car. At that point Marylin stated to the officers Desni seemed fi- ne but at the 2 o’clock call Desni did not answer. Detective Landis was told by Marylin that Desni is divorced and lives by herself since she kicked Deon out of the house in January

10 of 2012 because he would not take his bi-polar medication. There was no forced entry.

(RR8: PT6). The search warrant affidavit also included the following

statements:

Officers retrieved the keys and used them to unlock the front door of the residence and make entry. Officers located the complainant lying in the hallway by the kitchen with a black belt wrapped around her neck . . . .

Detective Worsham responded to the offense location and in- terviewed family and friends of the complainant who told [him] Deon Evans had assaulted the complainant in the past and had choked her on Easter of 2011. Detective Worsham also learned that the complainant lived at this location alone since kicking Deon out of the house in January 2012. Detec- tive Worsham learned that Deon Evans was the last person known to be with the complainant and has assaulted and choked her in the past . . . . Detective Worsham requests a search warrant be issued for a sample of Deon Evans’s sali- va/DNA to be compared to evidence collected at the offense location.

(RR8: PT4). Nothing more.

II. What warrants a warrant

A search warrant may not issue unless sufficient facts are pre-

sented through a sworn affidavit to satisfy the issuing magistrate that

probable cause exists for its issuance. TEX. CODE CRIM. PROC. art.

18.01(b); Jones v. State, 833 S.W.2d 118, 123-24 (Tex. Crim. App. 1992).

“Arrests generally must be supported by the same level of probable

11 cause.” See Brooks v. State, 76 S.W.3d 426, 431 (Tex. App. Houston

[14th Dist.] 2002, no pet.) (citing Whiteley v. Warden, Wyo. State Peni-

tentiary, 401 U.S. 560, 564-66 (1971)). Probable cause exists when there

are sufficient facts within the four corners of the affidavit which, cou-

pled with inferences from those facts, and under the totality of the cir-

cumstances, establish a fair probability that contraband or evidence of a

crime will be found at the specified location at the time the warrant is

issued. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012);

Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010); Hankins v.

State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004). Probable cause is a

“flexible and non-demanding standard.” State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011).

Ordinarily, prior case law is not especially helpful in making this

determination. This is because “[t]here are so many variables in the

probable cause equation that one determination will seldom be a useful

‘precedent’ for another.” Illinois v. Gates, 462 U.S. 213, 239 n. 11 (1983).

It remains, though, that “[i]t is basic that an arrest with or without a

warrant must stand upon firmer ground than mere suspicion.” Wong

Sun v. United States, 371 U.S. 471, 479 (1963). An unarticulated hunch,

12 suspicion, or even the good faith of the arresting officer is insufficient to

support probable cause to justify a warrantless arrest. Torres v. State,

182 S.W.3d 899, 902 (Tex. Crim. App. 2005). Probable cause to arrest

must “point like a beacon toward the specific person being arrested.”

Parker v. State, 206 S.W.3d 593, 596-97 (Tex. Crim. App. 2006).

III. The information in the affidavits provided no more than a hunch

In Evans’s opening brief on appeal, he argued in his first ground

that the trial court abused its discretion in denying his motion to sup-

press evidence obtained as a result of his arrest and search because the

affidavits in support of the warrants did not provide probable cause to

believe he had murdered the complainant. Even when viewing the total-

ity of the circumstances in the light most favorable to the trial court’s

ruling, the evidence does not support a finding of probable cause.

Though, again, prior case law is not especially helpful in making this

determination, Evans specifically pointed to this Court’s opinion in

Hankins, 132 S.W.3d at 388, as making clear that the information in

the affidavits here was entirely insufficient to rise to the level of proba-

ble cause.

13 In that case, this Court—without dissent—rejected the trial

court’s finding of probable cause from affidavits providing far more evi-

dence than the present case:

The facts that can be derived from the four corners of appel- lant’s arrest warrant affidavit are: (1) three dead bodies were discovered in a mobile home; (2) the victims were ap- pellant’s wife and her two children; (3) appellant had recent- ly been released from jail and was living with the victims in the mobile home where the bodies were found; (4) appellant’s wife’s car was missing from the scene; (5) the victims were killed with a gun and appellant was in possession of a gun; (6) an unsigned note stating “I am guilty of murder, incest, hatred, fraud, theft, jealously [sic], and envy” was found in- side the mobile home on an envelope addressed to appellant; (7) appellant had previously assaulted another woman; (8) appellant’s wife’s car was parked outside of his girlfriend’s apartment; (9) at 2 a.m., appellant asked his girlfriend to check to see if there was anything unusual outside of her apartment; and (10) when approached by officers outside of her apartment, appellant’s girlfriend told the officers that appellant was inside her apartment, that he was armed with a pistol and had access to a rifle and another pistol, that he had been staying with her for several days, and that he had been driving his wife’s car.

Id. at 388-89. The affidavits showed not only that the appellant had op-

portunity and motive, then, but also that a potential confession was

found at the scene and the appellant had armed and barricaded himself.

And yet, this Court held that:

While these facts together might create suspicion, we agree with appellant that they do not add up to probable cause

14 that appellant committed the murders. There were no facts that would lead a neutral and detached magistrate to con- clude that appellant was the perpetrator and not merely liv- ing with his wife and driving her car. There is nothing to show that the note was written by appellant. Even if the en- velope on which the note was written was, as alleged, ad- dressed to appellant, it was found at the crime scene where appellant was living. The note could have been written by anyone who picked up the envelope while inside the resi- dence. None of the facts as alleged specifically tie appellant to the commission of the offense.

Id. at 389 (comparing Earhart v. State, 823 S.W.2d 607, 631 (Tex. Crim.

App. 1991) (holding that arrest warrant affidavit was sufficient to es-

tablish probable cause where it alleged that the child victim had disap-

peared, that defendant encountered the victim about a week before her

disappearance at which time defendant “paid a lot of attention” to her,

that defendant was seen by several people in the victim’s neighborhood

on the day she disappeared, that defendant specifically asked a neigh-

bor when the victim’s family was expected home on the date of her dis-

appearance, that a car matching the description of defendant’s car was

seen at the victim’s home, that the victim was seen talking to the car’s

occupant on the afternoon of her disappearance, and that defendant left

town within two days of the victim’s disappearance), vacated on other

grounds, 509 U.S. 917 (1993); Gibbs v. State, 819 S.W.2d 821, 830–31

15 (Tex. Crim. App. 1991) (concluding that the arrest warrant affidavit es-

tablished probable cause where it alleged facts demonstrating that de-

fendant was in proximity of the location of the crime when the crime

was committed, that defendant wore boots early in the evening on the

night of the offense, but left for a while and was not wearing the boots

when he returned, that these same boots were stained with human

blood when they were recovered from defendant’s apartment at the

complex where the crime was committed, that defendant concocted a se-

ries of lies to divert the attention of police away from himself and the

commission of the crime, and that property stolen from the victim was

recovered from defendant’s possession)). Indeed, a mere “hunch” does

not even create “reasonable suspicion,” which is “obviously less demand-

ing than that for probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989).

The Dallas Court of Appeals dismissed Evans’s argument because

it determined that, in Hankins, “none of the facts in the . . . affidavit

specifically tied Hankins to the murders,” while “the affidavits here al-

lege facts that tie [Evans] directly to the murder.” Evans, 2014 WL

6450278 at *4 (emphasis added). And it was right to seize on that factor

16 as the crucial one—specific, direct evidence as establishing probable

cause. Hankins, 132 S.W.3d at 389 (“None of the facts as alleged specifi-

cally tie appellant to the commission of the offense.”). But the Dallas

court was simply wrong when it characterized the Evans affidavits as

containing as much.

The court identified the following evidence as tying Evans “direct-

ly to the murder”:

• “a history of violence between” Evans and the complainant

• “a source of recent animosity between” Evans and the com- plainant

• Evans “had a mental disorder and was not taking his medi- cation to control it”

• Evans was “at the scene within the timeframe of the mur- der”

• Evans “was the last person seen with [the complainant] while she was alive”

• “there was no forced entry, which suggests that it was un- likely that anyone other than appellant committed the crime”

Evans, 2014 WL 6450278, at *4. That’s it. And none of this ties Evans

directly to the murder; certainly not that he was merely at the crime

scene. See Jones, 833 S.W.2d at 124 (that defendant’s fingerprints were

17 found at murder scene was insufficient to establish probable cause that

the defendant committed the murder; it merely supported a finding that

the defendant was present at some point at the crime scene); Hoag v.

State, 728 S.W.2d 375, 378-80 (Tex. Crim. App. 1987) (no probable

cause to arrest burglary suspect who was observed walking suspiciously

around houses and into two apartment complexes and who had criminal

history for burglary).

As Evans pleaded with the court of appeals, and as the—despite

the court’s resistance—analogous Hankins opinion makes clear, the ev-

idence included in the affidavits in this case provides for suspicion,

nothing more. And though, accordingly, “the police certainly had cause

to investigate Evans based on the information available to them at the

time . . . gut feelings are insufficient to support probable cause to arrest

or search.” (Br. at 16).

The trial court abused its discretion by denying Evans’s motion to

suppress and by admitting the “immediate fruits” of the arrest and

search—his DNA, his shoes, his statements to the police at those

times—into evidence at trial. (CR: 49); see, e.g., Wong Sun, 371 U.S. at 484-85 (holding that both direct and indirect products of unlawful

18 searches generally must be excluded); Bell v. State, 724 S.W.2d 780, 787-91 (Tex. Crim. App. 1986) (applying attenuation of the taint analy-

sis and concluding that the “immediate fruits” of the illegal arrest

should have been suppressed). And the court of appeals was wrong to

approve as much.

Prayer

For these reasons, Evans respectfully requests this Court to grant

this petition so that it may reverse the court of appeals’s ruling and re-

mand this case to that court for a harm analysis.

Respectfully submitted,

/s/ Bruce Anton BRUCE ANTON Bar Card No. 01274700 [email protected]

/s/ Brett Ordiway BRETT ORDIWAY Bar Card No. 24079086 [email protected]

SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214)-468-8100 (office) (214)-468-8104 (fax)

Attorneys for Appellant

19 Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant’s Petition for Discretionary Review was served to the Dallas County District Attorney’s Office and the State Prosecuting Attorney via U.S. Mail on January 15, 2015.

/s/ Bruce Anton BRUCE ANTON

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies that this brief complies with:

1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because this petition contains 2, 411 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style requirements of TEX. R. APP. P. 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14-point Century Schoolbook.

/s/ Bruce Anton BRUCE ANTON

20 Appendix

21 Affirmed and Opinion Filed November 18, 2014

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00627-CR

DEON REESE EVANS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F-1228191-U

OPINION Before Justices FitzGerald, Fillmore, and Stoddart Opinion by Justice FitzGerald A jury found appellant guilty of the murder of his mother and sentenced him to ninety-

nine years’ imprisonment. In two issues on appeal, appellant asserts the trial court erred in

denying his motion to suppress evidence seized pursuant to search and arrest warrants that were

not supported by probable cause and erred in admitting evidence of an extraneous offense. We

affirm the trial court’s judgment.

BACKGROUND

Appellant suffers from mental illness, and during the time frame at issue refused to take

his medication. His mother, Desni Bowie-Green, insisted that appellant take his medication if he

continued to live with her. Appellant refused, so Desni repeatedly kicked appellant out of her

home. She would later relent and allow him to return. A year before Desni’s death, appellant assaulted her by choking her. The assault ended

when appellant’s grandmother intervened. Afterwards, Desni kicked appellant out of the house,

but later allowed him to return.

Two months before the murder, Desni kicked appellant out of the house again. On April

1, 2012, appellant showed up at the church his mother attended. Appellant requested that he be

allowed to remove some of his belongings from Desni’s home after the service. Desni agreed.

Desni’s friend, Marilyn Akers, expressed concern about appellant’s accompanying Desni

to her home. To alleviate these concerns, Desni and Akers agreed to stay in touch by phone.

When Akers first contacted Desni, Desni told her that she was at her home with

appellant. Akers said that she would phone again in an hour. When Akers called an hour later,

Desni did not answer the phone. Akers called and texted a few more times, but Desni did not

reply. Akers and her husband then went to Desni’s house to check on her. No one answered the

door, but Desni’s car was parked outside with the windows rolled down. Desni’s phone and keys

were lying on the passenger seat of the car.

Akers contacted the police and Desni’s mother. When the police arrived, they found no

signs of forced entry. The police entered the home using Desni’s keys, and found Desni’s body

on the kitchen floor. A leather belt was wrapped around Desni’s neck and there were shoe prints

on her lower arms. Sunglasses were found underneath Desni’s body. The medical examiner

determined that the cause of death was strangulation.

The police obtained a warrant for appellant’s arrest. After the arrest, the police obtained a

search warrant to obtain a sample of appellant’s DNA. Appellant filed a motion to suppress the

clothing he was wearing at the time of his arrest and the DNA sample. The trial court denied the

motion.

–2– At trial, the DNA testing linked the sunglasses found under Desni’s body to appellant.

Appellant also could not be excluded as a contributor to the DNA found on the belt, Desni’s

shirt, and fingernail clippings from Desni’s right hand. Both the medical examiner and a DPS

trace analyst compared pictures of the imprints left on Desni’s arms to appellant’s shoes and

concluded that appellant’s shoes could have been the shoes that left the marks.

Appellant’s grandmother testified about the choking incident that occurred a year before

the murder. Defense counsel objected to the testimony, but the objection was overruled.

During the punishment phase of trial, the State presented evidence of appellant’s prior

convictions for evading arrest, criminal trespass, resisting arrest, battery, and unlawful restraint.

Other testimony included that of psychologist Kristi Compton. Compton interviewed appellant

and determined that he suffered from schizoaffective disorder, borderline intellectual

functioning, and polysubstance abuse. But Compton stated that she saw no indication that

appellant was delusional on the day of the murder, and could not say that he did not know the

difference from right and wrong on that day.

The jury assessed punishment at ninety-nine years’ imprisonment. Appellant timely

perfected this appeal.

ANALYSIS

Motion to suppress

In his first issue, appellant argues the trial court erred in denying his motion to suppress

the clothing and DNA evidence because the affidavits in support of both the search and arrest

warrants were insufficient to establish probable cause.

–3– The Fourth Amendment establishes a constitutional preference that a search be conducted

pursuant to a warrant.1 Under Texas law, no search warrant may issue without a sworn affidavit

that sets forth facts sufficient to establish probable cause.2 Probable cause exists when, under the

totality of the circumstances, there is a fair probability that contraband or evidence of a crime

will be found at the specified location at the time the warrant is issued.3 Probable cause is a

“flexible and non-demanding standard.”4

Because of the constitutional preference for searches to be conducted pursuant to a

warrant, we apply a highly deferential standard of review to a magistrate’s probable-cause

determination.5 Under this highly deferential standard, we interpret the supporting affidavit in a

commonsensical and realistic manner, and we defer to all reasonable inferences that the

magistrate could have made.6 We consider the totality of the circumstances and determine

whether there are sufficient facts stated within the four corners of the affidavit, coupled with

inferences from those facts, to establish a fair probability that evidence of a particular crime

would be found at a given location.7 As long as the magistrate had a substantial basis for

concluding that probable cause existed, we will uphold the magistrate’s probable-cause

1 Jones v. State, 364 S.W.3d 854, 856–57 (Tex. Crim. App. 2012) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)); see U.S. CONST. amend. IV. 2 See TEX. CODE CRIM. PROC. ANN. art. 1.06 (West 2005); id. art. 18.01(b), (c) (West Supp. 2013); see also TEX. CONST. art. I, § 9. 3 State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). 4 State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011). 5 Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). The standard for reviewing a trial court’s ruling on a motion to suppress that is based on a magistrate’s probable-cause determination is different from the standard for reviewing a trial court's ruling on other motions to suppress: This Court normally reviews a trial court's ruling on a motion to suppress by using a bifurcated standard of review, where we give almost total deference to the historical facts found by the trial court and review de novo the trial court's application of the law. However, when the trial court is determining probable cause to support the issuance of a search warrant, there are no credibility determinations, rather the trial court is constrained to the four corners of the affidavit. Accordingly, when we review the magistrate’s decision to issue a warrant, we apply a highly deferential standard because of the constitutional preference for searches to be conducted pursuant to a warrant as opposed to a warrantless search. McLain, 337 S.W.3d at 271.

6 McLain, 337 S.W.3d at 271. 7 See Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).

–4– determination.8 Although the reviewing court is not a “rubber stamp,” “the magistrate’s decision

should carry the day in doubtful or marginal cases, even if the reviewing court might reach a

different result upon de novo review.”9

Likewise, an arrest warrant must also be supported by probable cause.10 To establish

probable cause, the evidence must show that “at the moment the facts and circumstances within

the officer’s knowledge and of which he had reasonably trustworthy information were sufficient

to warrant a prudent man in believing that the . . . person had committed or was committing an

offense.”11 As with a search warrant, the assessment of the sufficiency of an affidavit for an

arrest warrant is limited to the four corners of the affidavit.12

The arrest warrant stated the affiant believed that appellant “did then and there

intentionally and knowingly cause the death of Desni Bowie-Green by strangulation.” The

affidavit stated:

On 4-1-12 at approximately 3:51 pm Officers were dispatched to 1216 Blanco Circle on a concern for well fare call. Officers were told by the caller Marylin Acres that Resident Desni Bowie-Green was not responding to her phone or text messages and she was not answering her door. Desni’s car was at the location. The caller reported that Desni was having problems with her grown son Deon Reese Evans who had been violent to her in the past. The caller told police she was concerned something had happened to Desni while her son was there and now she was not able to get Desni to the door. Officers made entry into the house and found Desni was inside the location deceased from apparent strangulation.

Detectives Worsham and Landis were notified and arrived on scene. Marylin Acres stated to the officers and Detectives that she had been with Desni at church earlier in the day and her son Deon was there with her. When church was over Deon got in the car with Desni. Marylin stated she asked Desni if everything was

8 Bonds, 403 S.W.3d at 873; see also Gates, 462 U.S. at 238–39. 9 Jones, 364 S.W.3d at 856–57.

10 See Brooks v. State, 76 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2002, no pet.). 11 Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim. App. 2006). 12 See Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004).

–5– all right and if she wanted her to come to her house with her. According to Marylin, Desni stated no that she would be fine because she was just taking him (Deon) to the house to get the rest of his things.

Marylin stated to Detectives that because of the violence in the past with Deon she and Desni agreed Marylin would call her on the half hour to check and make sure she was ok. Marylin told the officers she called Desni at 1:24 pm and Desni answered and said she was just pulling up at her house and Deon was in the front passenger seat of the car. At that point Marylin stated to the officers Desni seemed fine but at the 2 o’clock call Desni did not answer. Detective Landis was told by Marylin that Desni is divorced and lives by herself since she kicked Deon out of the house in January of 2012 because he would not take his bi-polar medication. There was no forced entry.

Although appellant does not distinguish between the affidavit supporting the arrest

warrant and the affidavit supporting the search warrant, they are not identical. The search

warrant orders that a DNA sample be obtained from appellant. The affidavit begins with a

recitation of facts similar to the facts included in the arrest warrant. But the search warrant

affidavit also includes the following statements:

Officers retrieved the keys and used them to unlock the front door of the residence and make entry. Officers located the complainant lying in the hallway by the kitchen with a black belt wrapped around her neck. . .

Detective Worsham responded to the offense location and interviewed family and friends of the complainant who told [him] Deon Evans had assaulted the complainant in the past and had choked her on Easter of 2011. Detective Worsham also learned that the complainant lived at this location alone since kicking Deon out of the house in January 2012. Detective Worsham learned that Deon Evans was the last person known to be with the complainant and has assaulted and choked her in the past . . . Detective Worsham requests a search warrant be issued for a sample of Deon Evans’s saliva/DNA to be compared to evidence collected at the offense location.

Appellant asserts that while the police “certainly had cause to investigate” appellant

because he was with the complainant shortly before her murder and they shared a contentious

personal history, these facts did not point to appellant “like a beacon.” In support of his argument

–6– that the facts were insufficient to establish probable cause to support the warrants, appellant

relies on Hankins v. State.13Appellant’s reliance is misplaced.

In Hankins, the affidavit stated that: Hankins was married to one of the victims, that he

was living with her in the mobile home park where the bodies were found, that Hankins had been

driving his wife’s car and the car was parked at his girlfriend’s house where he had been staying

for several days, that Hankins previously assaulted someone other than the victims, and that

Hankins possessed a pistol and a rifle.14 The affidavit also stated that a handwritten confession

inside an envelope addressed to Hankins was found at the scene.15

Unlike the instant case, none of the facts in the Hankins affidavit specifically tied

Hankins to the murders.16 There was no information showing that Hankins had written the note

or that tied Hankins’s weapons to the murders.17 As the court observed, there was no information

from which the magistrate could conclude that Hankins was the murderer and not merely living

with his wife and driving her car.18

Conversely, the affidavits here allege facts that tie appellant directly to the murder. The

affidavits describe a history of violence between appellant and the victim, a source of recent

animosity between them, and that appellant had a mental disorder and was not taking his

medication to control it. The affidavits also recite facts that place appellant at the scene within

the timeframe of the murder, and establish that appellant was the last person seen with Desni

while she was alive. Specifically, the affidavits state that appellant was with Desni at the scene

13 132 S.W.3d 380, 389 (Tex. Crim. App. 2004). 14 Id. at 388–89. 15 Id. at 389.

16 See id. 17 Id. 18 Id.

–7– within thirty minutes to an hour before Akers lost contact with her, which was two and a half

hours before her body was discovered by the police. The affidavits demonstrate that there was no

forced entry, which suggests that it was unlikely that anyone other than appellant committed the

crime. These facts are sufficient to establish probable cause. From these facts, the magistrate

could reasonably conclude that a murder had been committed and there was a fair probability

that appellant had committed it. Therefore, the trial court did not err in denying the motion to

suppress. Appellant’s first issue is overruled.

Extraneous Offense Testimony

During the guilt/innocence stage of trial, the State called appellant’s grandmother, Quilla

Bowie, to testify about appellant’s previous assault on his mother. Defense counsel objected.19

The trial court initially sustained the objection, but the next day ruled that the testimony would

be allowed. In his second issue, appellant argues the trial court erred in admitting evidence of an

extraneous offense. Specifically, appellant complains the trial court should not have admitted his

grandmother’s testimony because any probative value the evidence may have had was

substantially outweighed by its prejudicial effect.

We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard.20 A trial court abuses its discretion if it acts arbitrarily or unreasonably,

without reference to any guiding rules or principles.21 When considering a trial court's decision to

admit or exclude evidence, we will not reverse the ruling unless it falls outside the “zone of

reasonable disagreement.”22

19 The objection was based on Rules 402, 403, and 404(b). See TEX. R. EVID. 402, 403, 404(b). Appellant relies solely on his rule 403 objection on appeal. 20 Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). 21 Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). 22 Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).

–8– The rules of evidence favor the admission of relevant evidence and carry a presumption

that relevant evidence is more probative than prejudicial.23 However, relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”24

The opponent of the evidence must demonstrate that its negative attributes substantially

outweigh any probative value.25 “Probative value” means “the inherent probative force of an item

of evidence—that is, how strongly it serves to make more or less probable the existence of a fact

of consequence to the litigation—coupled with the proponent’s need for that item of evidence.26

“Unfair prejudice” means a tendency to suggest a decision on an improper basis, such as hostility

or sympathy.27 Once Rule 403 is invoked, the trial court must engage in a balancing test,

considering the following factors: (1) the inherent probative force of the proffered item of

evidence, along with (2) the proponent's need for that evidence, against (3) any tendency of the

evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse

or distract the jury from the main issues, (5) any tendency of the evidence to be given undue

weight by a jury that has not been equipped to evaluate the probative force of the evidence, and

(6) the likelihood that presentation of the evidence will consume an inordinate amount of time or

merely repeat evidence already admitted.28 The language of Rule 403 stating that evidence “ may

be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”

23 Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). 24 TEX. R. EVID. 403 25 Montgomery, 810 S.W.2d at 377. 26 Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). 27 Id. at 879–80. 28 See Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

–9– means that trial courts should favor admission in close cases, in keeping with the presumption of

admissibility of relevant evidence.29

Appellant insists the testimony should have been excluded because identity was the only

fact at issue and the prior assault was not probative of this fact because it was dissimilar to the

murder. Appellant further asserts the evidence was unnecessary because the State had other

evidence to establish the relationship between appellant and his mother. According to appellant,

the evidence had the potential to impress the jury “in some irrational but nevertheless indelible

way.”

Bowie testified that she lived near Desni, and on April 6, 2011, Desni called her for help.

When Bowie arrived at Desni’s house, she could hear Desni screaming, “Help me, he’s killing

me.” Bowie banged on the door and appellant opened it. Bowie observed appellant’s arm around

Desni’s neck and he pulled Desni back from the door. Bowie jerked appellant’s arm and hit him.

When Bowie hit him, appellant stumbled back and barricaded himself in his bedroom. Appellant

was subsequently charged with unlawful restraint and Desni obtained a restraining order against

him.

Bowie’s testimony was relatively brief, comprising only nine pages out of approximately

six hundred pages of testimony in the record. And Bowie was only one of fifteen witnesses

offered by the State in the guilt/innocence phase of trial. Therefore, the evidence did not

consume an inordinate amount of time.

The evidence was also probative of a fact of consequence to the State. Evidence of the

“relevant facts and circumstances surrounding the killing and the previous relationship existing

between the accused and the deceased, together with all relevant facts and circumstances going

29 See Montgomery, 810 S.W.2d at 389.

–10– to show the condition of the mind of the accused at the time of the offense” is admissible in a

murder trial.30 Here, the relationship between appellant and his mother was probative of the

identity of the murderer. In establishing this identity, the State relied on evidence of appellant’s

animosity towards his mother and their tumultuous relationship. The prior assault evinced that

animosity. In addition, the similarity between the assault and the murder was probative on the

question of whether someone other than appellant murdered Desni.

Although the State briefly mentioned the prior assault in closing argument, the State did

not suggest that the evidence be considered for an improper purpose. To mitigate any danger of

the jury’s consideration of the evidence for an improper purpose, the trial court instructed the

jury that the assault evidence could only be used to determine appellant’s motive, state of mind,

or intent. We presume the jury follows the court’s instructions.31 Therefore, any tendency for the

evidence to be given undue weight, to suggest a decision on an improper basis, or to confuse or

distract the jury was minimal.

Based on the foregoing, we cannot conclude the trial court abused its discretion in

determining that the probative value of the evidence outweighed the danger of unfair prejudice.32

Appellant’s second issue is overruled.

30 See TEX. CODE CRIM. PROC. ANN. art. 38.36 (West 2014). 31 See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). 32 See Smith v. State, 318 S.W.3d 576, 591–93 (Tex. App.—Texarkana 2010, no pet.).

–11– Having resolved all of appellant’s issues against him, we affirm the trial court’s

judgment.

Do Not Publish TEX. R. APP. P. 47 130627F.U05 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DEON REESE EVANS, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-13-00627-CR V. Trial Court Cause No. F-1228191-U. Opinion delivered by Justice FitzGerald. THE STATE OF TEXAS, Appellee Justices Fillmore and Stoddart participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered November 18, 2014.

–13–