Clement, David Lee Jr.

PD-0681-15

PD-0681-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/3/2015 3:51:59 PM

Accepted 6/4/2015 11:24:32 AM

ABEL ACOSTA

No. 11-13-00055-CR CLERK

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DAVID LEE CLEMENT, JR., Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Wise County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

June 4, 2015

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No. 13803300

STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

Bar I.D. No. 24031632

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512-463-1660 (Telephone)

512-463-5724 (Fax)

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

* The parties to the trial court’s judgment are the State of Texas and Appellant,

David Lee Clement, Jr.

* The trial Judge was Hon. John H. Fostel.

* Trial counsel for the State was District Attorney Gregory Lowery and Assistant

District Attorneys Jay Lapham and Tim Cole, 101 N. Trinity, Suite 200,

Decatur, Texas 76234.

* Counsel for the State before the Court of Appeals was Assistant District

Attorney Lindy Borchardt, 101 N. Trinity, Suite 200, Decatur, Texas 76234,

and Stacey M. Goldstein, Assistant State Prosecuting Attorney, P.O. Box

13046, Austin, Texas 78711.

* Counsel for the State before the Court of Criminal Appeals is Stacey M.

Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,

Texas 78711.

* Counsel for Appellant in the trial court and before the Court of Appeals was

Jim Shaw, 916 W. Belknap, Fort Worth, Texas 76102.

TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Does a suppression motion’s mere citation to the Fourth Amendment and

probable cause, or a belated closing argument that anything after the

“stop” be suppressed due to lack of probable cause for “arrest,” preserve

an illegal arrest claim?

2. Did the lower court err by basing its illegal arrest holding on the officer’s

subjective reasoning rather than the objective facts he articulated that

routinely support a DWI arrest?

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-15

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX A (Court of Appeals Opinion on Original Submission)

APPENDIX B (Court of Appeals Opinion on Rehearing)

i

INDEX OF AUTHORITIES

Cases

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . 14 n.18

Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . 9 n.6

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 2671 (Tex.

App.—Eastland 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 4801 (Tex.

App.—Eastland 2015, on reh’g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . 14 n.19

Devenpeck v. Alford, 543 U.S. 146 (2004). . . . . . . . . . . . . . . . . . . . . . . . 13 n.14, 15

Douds v. State, PD-0857-14 (submitted March 18, 2015).. . . . . . . . . . . . . . . 12 n.11

State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 12 n.12, 13

State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013).. . . . . . . . . . . 9 n.6, 10 n.7

Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . 14 n. 17

Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 11 n.9

Handy v. State, 189 S.W.3d 296 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . 7 n.3

Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005). . . . . . . . . . . . . 10 n.8

Leal v. State, PD-1638-14 (Tex. Crim. App. 2015) (not designated for publication)

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 n.11

Maxwell v. State, 253 S.W.3d 309 (Tex. App.—Fort Worth 2008). . . . . . . . 15 n.20

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . 11 n.9

ii

Navarette v. California, 134 S. Ct. 1683 (2014). . . . . . . . . . . . . . . . . . . . . . . 14 n.16

Ouellette v. State, 353 S.W.3d 868 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 15 n.20

Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . 10 n.7

State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App. 2011).. . . . . . . . . . 7 n.3, 8 n.5

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). . . . . . . . . . . . . . 12 n.12

Statutes and Rules

T EX. C ODE C RIM. P ROC. art. 28.01 § 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

T EX. R. A PP. P. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 n.10

T EX. R. A PP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.2, 8 n.4

iii

No. 11-13-00055-CR

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DAVID LEE CLEMENT, JR., Appellant

v.

THE STATE OF TEXAS, Appellee

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney respectfully urges this Court to grant

discretionary review.

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

1

STATEMENT OF THE CASE

After Appellant’s motion to suppress was denied, he was convicted of felony

DWI and sentenced to four years’ imprisonment. The court of appeals reversed the

trial court’s suppression ruling. It held that Appellant’s challenge to the legality of his

arrest was preserved because: (1) his motion cited the Fourth Amendment and

probable cause standard applicable to arrests, and (2) he argued he was arrested

without probable cause in his closing statement at the suppression hearing. It then

held that the arresting officer lacked probable cause because, even though he testified

about several facts that courts consider decisive in assessing probable cause, he

justified the arrest based solely on the smell of alcohol on Appellant’s breath.

STATEMENT OF PROCEDURAL HISTORY

In a published decision, the Eastland Court of Appeals reversed the trial court’s

denial of Appellant’s motion to suppress. Clement v. State, __ S.W.3d__, 11-13-

00055-CR, 2015 Tex. App. LEXIS 2671 (Tex. App.—Eastland 2015). The State

filed a motion for rehearing, which the court of appeals denied in a published opinion.

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 4801 (Tex.

App.—Eastland 2015, on reh’g).

2

FACTS

Trooper Jeff Johnson received a dispatch report about the presence of a

“possible intoxicated” owner of a white Pontiac at a nearby Exxon station around

12:30 a.m. on a Sunday morning. 2 RR 12-13, 16. Soon after, Johnson stopped at

a gas station across the street from the Exxon and spotted the white Pontiac backing

up in the parking lot.1 2 RR 13. When Appellant pulled onto the road, Johnson

followed. 2 RR 14. Appellant accelerated quickly, and Johnson checked Appellant’s

speed on his radar unit. 2 RR 14. Appellant was traveling 62 m.p.h. in a 55 m.p.h.

zone. 2 RR 14. When Johnson activated his overhead lights, 2 RR 19, Appellant

pulled onto the right shoulder and almost “struck” the guardrail before stopping. 2 RR

23.

Johnson told Appellant he stopped him for speeding. 2 RR 25. Johnson smelled

alcohol on Appellant’s breath, and he and Appellant discussed what Appellant had

to drink. RR 25, 27. Appellant declined to participate in any field sobriety tests. 2

RR 26. Johnson agreed with defense counsel’s statement that he arrested Appellant

for DWI “based on the odor of alcohol on his breath.” 2 RR 25-26.

The trial court denied Appellant’s motion to suppress. 2 RR 31.

1

The Pontiac was the only other vehicle in the lot besides a local police unit. 2

RR 17.

3

GROUNDS FOR REVIEW

1. Does a suppression motion’s mere citation to the Fourth Amendment and

probable cause, or a belated closing argument that anything after the

“stop” be suppressed due to lack of probable cause for “arrest,” preserve

an illegal arrest claim?

2. Did the lower court err by basing its illegal arrest holding on the officer’s

subjective reasoning rather than the objective facts he articulated that

routinely support a DWI arrest?

ARGUMENT

Court of Appeals on Original Submission

Appellant alleged, among other things, that his arrest was not supported by

probable cause. Clement, 2015 Tex. App. LEXIS 2671, at *9. On original

submission, the court of appeals addressed preservation sua sponte and held that

Appellant preserved his claim. Id. at *13 n.5. The court then held that the trial court

erred to deny Appellant’s suppression motion. Id. at *15. The court observed that,

while Johnson stated that the odor of alcohol on Appellant’s was a “factor” in his

decision to arrest Appellant, “the record is silent as to what other factors Trooper

Johnson may have relied upon . . . .” Id. at *15-16 (emphasis in original).

Continuing, the court stated:

To hold otherwise would require us to speculate on what factors, if any

Trooper Johnson may have relied upon in arresting Appellant, including

his refusal to perform field sobriety tests, Appellant’s response to the

question of what he had been drinking, Appellant’s speeding violation,

and Appellant’s act of almost striking the guardrail.

4

Id. at *16.

Court of Appeals Rehearing

On rehearing, the State claimed the court of appeals erred to hold that

Appellant’s arrest challenge was preserved because his objection was neither specific

nor timely. State’s Motion for Rehearing, at 2-6. The State also argued, in the

alternative, that the court improperly applied a subjective standard of review and

consequently erred to hold Appellant’s arrest was not supported by probable cause.

State’s Motion for Rehearing, at 6-8. The court of appeals disagreed and denied the

State’s motion. See generally, Clement, 2015 Tex. App. LEXIS 4801, at *1-13.

1. Appellant’s illegal arrest complaint was not properly preserved.

Appellant filed a pretrial motion to suppress. 1 CR 18-19. In it, he argued:

the stop of Defendant was without a warrant or probable cause. There

was no probable cause based upon acceptable scientific protocol.

Further, the so-called-tipster was not shown to be credible. The officer

did nothing to corroborate the tip from the unknown informant.

1 CR 19.

At the beginning of the suppression hearing, Appellant asked the State to

stipulate that he was stopped without a warrant. 2 RR 10. The State agreed and

called Johnson to testify. 2 RR 11-16. After establishing that Johnson stopped

Appellant for speeding, the State passed the witness. 2 RR 16. Appellant cross-

5

examined Johnson about the facts leading up to the stop and then questioned him

about the circumstances leading up to his arrest. 2 RR 16-28.

In closing, the prosecutor asserted: “The radar unit showed his speed over the

posted speed limit, so based on that he had probable cause to stop.” 2 RR 29.

Appellant responded, first addressing the stop:

Well, without calling into account the credibility of the officer’s

ability to recollect, this stop was predicated on an uncorroborated

informant’s tip[] that there was a possible intoxicated driver; no showing

how that person knew they were intoxicated, who it was from, or

whether they were credible. So it gets down to the officer trying to make

a stop.

When he sees the guy driving properly down the street, and he sees

the vehicle being operated correctly, he sees the driver of the vehicle

driving between a white line and the guardrail; a keen sense of driving,

he says; but he pulls him over anyway for speeding; and that’s -- that’s

where the stop is.

He then changed topics and argued:

And he smells alcohol on his breath, so he doesn’t do any tests,

doesn’t do anything. No evidence of intoxication except alcohol on his

breath, and he’s arrested for DWI.

It’s our position that anything after the stop should be suppressed,

because there’s no probable cause for his arrest.

The arrest led to an interview. The interview led to a mandatory

blood draw, based upon the belief that it was his third DWI.

2 RR 30 (emphasis added).

6

Proper preservation is lacking for two reasons: non-specificity and

untimeliness.2 On rehearing, the court of appeals held that Appellant’s reference to

the Fourth Amendment and probable cause standard in his motion to suppress,

combined with his closing argument, were sufficient to preserve error. Clement,

2015 Tex. App. LEXIS 4801, at *4-9.

Given the record here, the court’s determination essentially renders current

preservation standards meaningless.

A. Specificity

While the State carries the burden to justify a warrantless stop or arrest, the

defendant has the (pre-shifting) initial burden of raising a challenge to the validity of

the stop or arrest.3 Appellant’s motion broadly referencing the Fourth Amendment

and probable cause were not sufficient to notify the State and trial court that he was

contesting his arrest. This is especially true given the remainder of the motion. It

explicitly challenged the validity of the stop, scientific protocol and testing, and

2

See T EX. R. A PP. P. 33.1(a)(1)(A) (requiring a complaint to be timely and the

reason to be made with “sufficient specificity” to make the trial court aware of it).

3

State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (“A

defendant who alleges a violation of the Fourth Amendment has the burden of

producing evidence that rebuts the presumption of proper police conduct.”); cf. Handy

v. State, 189 S.W.3d 296, 298-99 (Tex. Crim. App. 2006) (the State had no duty to

exhibit the warrant and supporting affidavit because Handy’s boilerplate suppression

motion failed to satisfy his initial burden to prove standing or that the search was

unreasonable on its face).

7

tipster credibility. Notably, it incorrectly stated that the justification for the stop is

measured by probable cause. The explicit items mentioned and the confusion about

the applicable standard for an arrest cuts against the conclusion that the motion can

legitimately be understood as a challenge to an arrest.

Next, Appellant’s closing argument also failed to provide adequate notice that

he was contesting the legality of his arrest. The stated violation and relief requested

are incongruous: A lack of probable cause for the arrest does not support the

requested relief of suppression of anything after the stop. Therefore, as with his

motion, it is unreasonable to conclude that Appellant was challenging and requesting

a ruling on the legality of his arrest.

B. Timeliness

Even assuming that Appellant’s closing remarks should have provided notice

that the validity of Appellant’s arrest was now at issue, that challenge was untimely.4

Appellant’s suppression motion and stated agenda at the hearing concerned only the

validity of the stop. The State should be entitled to rely on Appellant’s strategically

selected litigation notice when defending against his motion in court.5 The State

4

See T EX. R. A PP. P. 33.1(a)(1)(2).

5

Cf. Robinson, 334 S.W.3d at 779 (“Since appellee never produced evidence of

a statutory violation, the State never had the burden to prove that the blood sample

was drawn by a qualified person.”).

8

prepared for the hearing accordingly and limited its questioning to the contested

issue. The arrest issue was outside the scope of the purpose of the suppression

hearing. Therefore, Appellant’s belated complaint about his arrest, thrown in

(disjointedly) at the end of his closing argument, was made too late for purposes of

requesting suppression at the hearing.6 The State should not have to litigate the

merits of an issue on appeal when the defendant did not timely raise the complained-

of error in the trial court.

Additionally, Appellant was responsible for timely designating any

suppression issue(s) under Texas Code of Criminal Procedure Article 28.01, Section

2. That provision states that pretrial hearing matters not raised or filed seven days

before the hearing cannot thereafter be raised or filed, except with the court’s

permission and good cause shown. T EX. C ODE C RIM. P ROC. art. 28.01 § 2. Here,

6

Cf. State v. Esparza, 413 S.W.3d 81, 87 n.23 (Tex. Crim. App. 2013) (“The State

was never alerted that it must satisfy a burden at the pretrial hearing to produce

evidence sufficient to establish scientific reliability. To affirm the trial court’s ruling

that granted the appellee’s motion to suppress on the basis of a failure by the State to

produce evidence under these circumstances is unacceptable.”); Buchanan v. State,

207 S.W.3d 772, 777 (Tex. Crim. App. 2006) (“Nothing about the hearing up to [the

closing argument] would reasonably have alerted the trial court or opposing counsel

that the appellant meant to challenge the legality of his arrest under Chapter 14, as

opposed to the constitutional provisions cited in his written motion to suppress.”).

9

there is no evidence that Appellant made a “good cause” argument to justify his

failure to raise the claim earlier. Unless challenged by a specific objection or motion,

the State need not present evidence to satisfy its ultimate burden with respect to any

viable, potential issue that could be raised by the defendant.7 If no rule preventing

unfair surprise existed, then the State would be saddled with the burden of securing

all the necessary witnesses to address each and every possible legal issue a defendant

could decide to raise at a scheduled hearing.8 This would have a significant negative

impact on judicial resources.

The court of appeals rejected the State’s reliance on Article 28.01, Section 2.

It determined that the State failed to cite any authority stating that Section 2’s

7

See Pham v. State, 175 S.W.3d 767, 773-74 (Tex. Crim. App. 2005) (“We have

long held that the burden of persuasion is properly and permanently placed upon the

shoulders of the moving party. When a criminal defendant claims the right to

protection under an exclusionary rule of evidence, it is his task to prove his case.”)

(internal quotes deleted); cf. Esparza, 413 S.W.3d at 86 (while the proponent of

scientific evidence carries the burden of proving reliability at a pretrial hearing or at

trial, the proponent is not obligated to satisfy the burden until the opponent objects on

the basis of reliability). Nor should suppression hearings be treated as a mechanism

for discovery.

8

Cf. Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex. Crim. App. 2005) (State’s

failure to provide T EX. R. E VID. 404(b) notice indicates that it does not think an

extraneous offense is relevant, thereby relieving the defendant of having to prepare

to defend against it).

10

timeliness requirement trumps the timeliness requirements for preservation under

Texas Rule of Appellate Procedure 33.1. Clement, 2015 Tex. App. LEXIS 4801, at

*9. It also held that the State could not rely on this theory to justify the trial court’s

ruling because it failed to present this argument in the trial court. Id. at *9-10.

First, there is no procedural default, as the State was the winning party in the

trial court.9 Second, Article 28.01, Section 2 is not trumped by Rule 33.1. It is a

statute, addressing the time requirement for raising issues to be heard at a pretrial

hearing, and thus trumps Rule 33.1 according to the hierarchy of laws.10

This Court should grant review to refine pre-trial suppression issue preservation

requirements. Though a large portion of the Court’s docket includes pretrial

suppression claims, the Court has not fully fleshed out the timeliness requirements

as it relates to the moving party’s burden, judicial economy, orderly hearings,

9

Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002) (“‘Ordinary

notions of procedural default’ do not require a prevailing party to list or verbalize ‘in

the trial court every possible basis for upholding’ its decision.”) (quoting State v.

Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998)).

10

See T EX. R. A PP. P. 2 (a court must not construe the authority of an appellate

court to suspend the Rules of Appellate Procedure “to suspend any provision in the

Code of Criminal Procedure”).

11

confusion of the issues, and fishing expeditions. Further, recent action by the Court

indicates that it has become interested in settling firmer guidelines.11

2. Alternatively, the court of appeals violated the applicable standards of

review when deciding the legality of Appellant’s arrest.

Addressing the merits on rehearing, the State argued that the court of appeals

violated two basic standards of review in reversing the trial court’s decision: (1) that

the officer’s subjective belief about why the arrest was justified is irrelevant as long

as the objective facts provide a basis for finding probable cause;12 and (2) that an

appellate court is required to defer to a trial court’s implicit factfindings, when

supported by the record, in a light most favorable to the court’s ruling.13 State’s

Motion for Rehearing, at 6-8.

11

This Court remanded Leal v. State, PD-1638-14 (Tex. Crim. App. 2015) (not

designated for publication), in March for the court of appeals to determine whether

Appellant’s motion for new trial, which was considered at a live hearing, preserved

a challenge to the legality of a warrantless blood draw. And in September of 2014,

the Court granted review in Douds v. State, PD-0857-14 (submitted March 18, 2015),

to consider, in part, whether Appellant’s challenge to a warrantless blood draw was

preserved when he filed a boilerplate motion to suppress.

12

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007) (“The subjective

intent or motivations of law enforcement officials is not taken into account when

considering the totality of the circumstances.”); see also State v. Elias, 339 S.W.3d

667, 675 (Tex. Crim. App. 2011) (the appropriate question is “whether the objective

facts would have justified an officer in [the officer’s] shoes in detaining the appellee

. . . .).

13

Elias, 339 S.W.3d at 673-74.

12

The court of appeals rejected the State’s characterization of its analysis. It

explained that it had recognized (on original submission) that the record developed

at the hearing was very limited as to Johnson’s basis for arresting Appellant.

Clement, 2015 Tex. App. LEXIS 4801, at *12. As a result, it faced the “dilemma [of]

conducting an analysis of the totality of the circumstances facing the arresting officer

on a very limited record rather than basing [its] analysis on Trooper Johnson’s

subjective beliefs.” Id.

The court of appeals appears to have missed the distinct nuances between the

objective versus subjective standards. By saying it would be required to “speculate”

as to other factors (besides alcohol on breath) that Johnson relied upon, the court of

appeals necessarily applied an improper subjective standard. See 2015 Tex. App.

LEXIS 2671, at *15-16. “[A]n arresting officer’s state of mind (except for the facts

that he knows) is irrelevant to the existence of probable cause.”14 Otherwise, “An

arrest made by a knowledgeable, veteran officer would be valid, whereas an arrest

made by a rookie in precisely the same circumstances would not.”15 Here, Johnson

testified to all the dispositive facts the court erroneously declined to “speculate”

about:

14

Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

15

Id.

13

• An anonymous citizen-informant called authorities and reported that Appellant

was drunk and would soon be getting on the road in a white Pontiac, and

Trooper Johnson immediately corroborated some of the information when he

found Appellant at the reported location in a white Pontiac.16 2 RR 12-14, 16-

18.

• The events occurred on a Saturday at 12:30 a.m.17 2 RR 12-13.

• Appellant was speeding, and it can rationally be inferred that his impaired

mental faculties led him to disregard the speed limit with a police officer

behind him.18 2 RR 14, 18.

• Appellant almost hit the guard-rail when he pulled onto the road’s shoulder.19

2 RR 23-24.

16

See Navarette v. California, 134 S. Ct. 1683, 1689-90 (2014) (a citizen-

informant’s report may have sufficient indicia of reliability depending on details

indicating eyewitness knowledge, whether the location of the subject was confirmed,

the time-line shows that the report was contemporaneous with the reported behavior,

and the report was made on a 911 system that a reasonable officer could assume

would deter false reporting).

17

See Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (time of day

considered as a factor in determining reasonable suspicion of DWI).

18

See Amador v. State, 275 S.W.3d 872, 879 (Tex. Crim. App. 2009) (citing

speeding as a factor supporting probable cause of DWI).

19

See id. (citing fumbling and slowness of movement as factors supporting

probable cause of DWI and concluding that the inference that impairment was the root

cause was reasonable); Curtis v. State, 238 S.W.3d 376, 381 (Tex. Crim. App. 2007)

(citing weaving in and out of a lane as a factor supporting reasonable suspicion of

DWI).

Johnson agreed with Appellant’s attorney’s statement that Appellant exhibited

“pretty keen driving” by avoiding hitting the guardrail because there was barely

enough room for a car between the white line and guardrail. 2 RR 23-24. While the

trial court could have found “keen driving,” it reasonably inferred intoxication.

14

• Appellant told Trooper Johnson he had been drinking. 2 RR 28.

• Appellant’s breath smelled of alcohol. 2 RR 26.

• Appellant refused to take part in any field sobriety tests.20 2 RR 26.

The combined force of the circumstances above and reasonable inferences

therefrom support the trial court’s denial of Appellant’s motion to suppress. The

court of appeals’ approach to the objective standard in this case conflicts with the

principles underlying that standard and has the resulting effect of usurping trial

court’s role as factfinder. This Court should grant review because the court of

appeals’ analysis is a gross deviation from settled Fourth Amendment appellate

standards of review.

20

See Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort Worth 2008)

(citing refusal to perform field sobriety tests as a factor supporting probable cause of

DWI); cf. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011) (refusal to

take blood test deemed a piece of circumstantial evidence of intoxication for

evidentiary sufficiency purposes).

PRAYER

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals grant

this Petition for Discretionary Review and reverse the decision of the court of appeals.

Respectfully submitted,

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No.13803300

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

Bar I.D. No. 24031632

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512-463-1660 (Telephone)

512-463-5724 (Fax)

16

CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this

document contains 3,198 words, exclusive of the items excepted by T EX. R. A PP. P.

9.4(i)(1).

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

17

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on June 3, 2015, via certified electronic service provider to:

Hon. Lindy Borchardt

Wise County Courthouse

101 North Trinity Street

Suite 200

Decatur, Texas 76234

lindy@co.wise.tx.us

Hon. Jim Shaw

916 West Belknap

Fort Worth, Texas 76102

jimshaw@jimshawlaw.com

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

18

APPENDIX A

DAVID LEE CLEM ENT, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 11-13-00055-CR

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

2015 Tex. App. LEXIS 2671

M arch 20, 2015, Decided

M arch 20, 2015, Opinion Filed

NOTICE: PUBLISH. SEE TEX. R. APP. P. 47.2(b). because we [*2] conclude that the trial court should have

granted Appellant's motion to suppress.1

PRIO R H ISTORY: [*1] On Appeal from the 271st

District Court, W ise County, Texas. Trial Court Cause 1 The reporter's record indicates that a DVD of

No. CR16160. Appellant's arrest was admitted during the

punishment phase of trial. The reporter's record

further indicates that the actual DVD was

COUNSEL: For Appellant: Jim Shaw, Ray Napolitan, "[m]ailed under separate cover" because the file

Law Office of Jim Shaw, Fort W orth, TX. was too large to transmit electronically. However,

we have no record of the DVD being mailed to

For Appellee: Gregory Lowery, District Attorney, Lindy our court, and our efforts to obtain another copy

Borchardt, Assistant, Decatur, TX; Lisa C. McMinn, have been unsuccessful. This omission does not

Stacey Goldstein, Assistant State Prosecuting Attorney, preclude our consideration of the appeal because a

Austin, TX. review of the DVD is unnecessary to resolve the

issues presented to the court.

JUDGES: Panel consists of: W right, C.J., W illson, J.,

and Bailey, J. Background Facts

Appellant was charged with DW I, which was alleged

OPINION BY: JOHN M. BAILEY

to have occurred on or about January 30, 2011. The

indictment alleged two previous DW I convictions, one in

OPINION

2010 from W ise County and one in 1993 from Tarrant

After a bench trial, the trial court convicted David County, to enhance the 2011 offense to felony DW I under

Lee Clement, Jr. of felony driving while intoxicated Section 49.09(b)(2) of the Texas Penal Code. P EN AL §

(DW I). See T EX . P ENAL C O D E A NN . § 49.09(b) (W est 49.09(b)(2).

Supp. 2014). The trial court assessed his punishment at

Appellant filed a pretrial motion to suppress the

confinement for four years in the Institutional Division of

evidence arising from his arrest.2 He also filed a motion to

the Texas Department of Criminal Justice. Appellant

quash the indictment, alleging that one of the prior DW I

asserts three issues on appeal. In his first issue, Appellant

convictions alleged in the indictment was void. The trial

argues that the trial court erred when it denied his motion

court heard the motion to suppress and the motion to

to suppress because the investigating officer lacked

quash on [*3] September 25, 2012. The trial court denied

probable cause to arrest him for DW I. Appellant alleges

both motions in open court at the end of the hearings on

in his second issue that the trial court erred when it

each motion. The trial court and the parties then

denied his motion to quash the indictment because the

immediately proceeded to trial. The trial began with

indictment "alleged a void judgment" as one of

Appellant's trial counsel announcing the following

Appellant's prior DW I convictions. In his third issue,

stipulation on the record:

Appellant asserts that the evidence was insufficient to

prove that Appellant had been convicted of two prior

W e agreed that we would stipulate that

DW I offenses. W e uphold the trial court's denial of

he was driving and operating a motor

Appellant's motion to quash the indictment. However, we

vehicle on a public road or highway in

reverse the trial court's judgment and remand the case

W ise County on that particular date. W e'll

stipulate to the intoxication and his (1) that the prior conviction exists and (2) that the

driving. defendant [*5] is linked to that conviction. Flowers v.

State, 220 S.W.3d 919, 922 (Tex. Crim. App. 2007). The

And I believe that after that

State may prove a prior conviction in a number of

stipulation, the State's only burden is to

different ways. Id. at 921--23. The State is not required to

prove that he has two prior convictions,

produce a specific document or specific proof because

your Honor.

"[t]here is no 'best evidence' rule in Texas that requires

that the fact of a prior conviction be proven with any

document, much less any specific document." Id. at 921.

The proof that is adduced to establish that the defendant

on trial is the same person named in the prior conviction

2 Although it is not an issue in this appeal,

"closely resembles a jigsaw puzzle." Id. at 923 (quoting

Appellant was subjected to a mandatory blood

Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App.

draw after his arrest for felony DW I. The Court

1988)). Standing alone, the pieces usually have little

of Criminal Appeals recently held that "a

meaning, but when fitted together, the pieces usually

nonconsensual search of a DW I suspect's blood

form the picture of the person who committed the alleged

conducted pursuant to the mandatory-blood-draw

prior conviction or convictions. Id. The trier of fact fits

a n d im p lie d -c o n s e n t p r o v is io n s in the

the pieces of the jigsaw puzzle together and weighs the

Transportation Code, when undertaken in the

credibility of each piece. Id. W hatever form the State's

absence of a warrant or any applicable exception

proof takes, however, it must be sufficient to prove the

to the warrant requirement, violates the Fourth

defendant's prior conviction beyond a reasonable doubt.

Amendment." State v. Villarreal, No. PD-0306-

Id. at 923.

14, 2014 Tex. Crim. App. LEXIS 1898, 2014 WL

6734178, at *21 (Tex. Crim. App. Nov. 26, 2014), In reviewing the sufficiency of the evidence to

reh'g granted, 2015 Tex. Crim. App. LEXIS 201 determine whether the State proved the elements of the

(Feb. 25, 2015); see Burks v. State, No. 02-13- offense beyond a reasonable doubt, we apply the Jackson

00560-CR, 2015 Tex. App. LEXIS 99, 2015 WL v. Virginia standard. Brooks v. State, 323 S.W.3d 893,

115964, at *1 (Tex. App.--Fort Worth Jan. 8, 895--96 (Tex. Crim. App. 2010) (citing Jackson v.

2015, pet. filed); Forsyth v. State, 438 S.W.3d Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d

216, 223 (Tex. App.--Eastland 2014, pet. ref'd). 560 (1979)). Under that standard, a reviewing court must

consider [*6] all evidence in the light most favorable to

Appellant personally [*4] testified that he agreed to

the verdict and, in doing so, determine whether a rational

the stipulation, and the prosecutor announced that the

justification exists for the jury's finding of guilt beyond a

State agreed with the terms of the stipulation, whereupon

reasonable doubt. Id. The trier of fact is the sole judge of

the trial court accepted it. The trial court ultimately found

the weight and credibility of witness testimony; therefore,

Appellant guilty of felony DW I based upon its

on appeal, we must give deference to the factfinder's

determination that the State had sufficiently proven

determinations. Id. If the record contains conflicting

Appellant's two prior DW I convictions.

inferences, we must presume that the factfinder resolved

such facts in favor of the verdict and defer to that

Sufficiency of the Evidence

resolution. Id.

In his third issue, Appellant challenges the

Appellant limits his evidentiary challenge under his

sufficiency of the evidence to prove that he had

third issue to the contention that the State failed to

previously been convicted of two prior offenses of

affirmatively link him to the Tarrant County conviction.

driving while intoxicated.3 A person may be charged with

Specifically, Appellant alleges that the officer that

felony DW I if he has two previous convictions for DW I.

testified as a fingerprint expert was not able to read the

P ENAL § 49.09(b)(2). The two prior DW I convictions are

fingerprint on the judgment from the Tarrant County

elements of the offense of felony DW I. Martin v. State,

conviction and, thus, could not tell if Appellant was

200 S.W.3d 635, 640--41 (Tex. Crim. App. 2006). The

indeed the individual convicted in the Tarrant County

two prior convictions are jurisdictional, as opposed to

conviction. W e conclude that the State offered additional

mere enhancement allegations. Id. at 640. The State must

evidence that sufficiently linked Appellant to the Tarrant

prove the two prior DW I convictions at the

County conviction.

guilt/innocence stage of trial in order to obtain a felony

DW I conviction. See Gibson v. State, 995 S.W.2d 693, State's Exhibit No. 2 contained a certified Order

696 (Tex. Crim. App. 1999). Revoking Probation for Appellant's conviction in Tarrant

[*7] County for DW I. State's Exhibit No. 3 consisted of

3 W e are initially addressing Appellant's third the Texas Department of Public Safety's Certified

issue because it could potentially result in his Abstract Record for Appellant. State's Exhibit No. 3

acquittal. contained Appellant's name, date of birth, address,

driver's license number, dates of arrest, charged offenses,

Evidence that a defendant has been convicted of a

findings of guilt, and the judicial case identification

prior offense must establish beyond a reasonable doubt

number for the Tarrant County conviction. This too-lenient punishment should not be permitted to

information matches the information in the revocation of collaterally attack that judgment on a later date on the

probation order arising from the Tarrant County basis of the illegal leniency." 240 S.W.3d at 892.

conviction, with one exception--the Certified Abstract Accordingly, Appellant is prohibited from collaterally

Record lists the "conviction date" for the Tarrant County attacking the W ise County conviction on the basis of it

conviction as being December 12, 1994. This was being too lenient. Id. Appellant's second issue is

actually the date that Appellant's probation was revoked overruled.

for the Tarrant County conviction.

Motion to Suppress

The charging instrument for the subsequent W ise

County conviction alleged the details of the Tarrant In his first issue, Appellant challenges the trial

County conviction. Additionally, the judgment from the court's denial of his motion to suppress. Appellant alleged

W ise County conviction that Appellant offered into as follows in his motion:

evidence during the hearing on the motion to quash

specifically states that this was a conviction for a Class A For cause, Defendant would show that

misdemeanor DW I under Section 49.09(a). See P EN AL § the stop of Defendant was without a

49.09(a). A conviction of a Class A misdemeanor DW I warrant or probable cause. There was no

requires a finding of a prior conviction of DW I. Id. Thus, probable cause based upon acceptable

Appellant pleaded guilty [*8] to a Class A misdemeanor scientific protocol. Further, the so-called-

in the subsequent W ise County conviction that tipster [*10] was not shown to be

specifically alleged the existence of his prior Tarrant credible. The officer did nothing to

County conviction. corroborate the tip from the unknown

informant.

Viewing the evidence in the light most favorable to

the verdict, we conclude that the trial court could have

found beyond a reasonable doubt that Appellant had been

The suppression hearing began with the prosecutor

convicted of the two prior DW Is alleged in the

acknowledging that the State had the burden of

indictment. W e overrule Appellant's third issue.

establishing a valid basis for the arresting officer's

conduct because Appellant was "stopped without

Motion to Quash Indictment

warrant." The prosecutor then called Trooper Jeff

In his second issue, Appellant challenges the trial Johnson of the Texas Department of Public Safety as a

court's denial of his pretrial motion to quash the witness.

indictment.4 Appellant argues that the indictment should

Trooper Johnson testified on direct examination that

have been quashed because the 2010 conviction that was

he was dispatched at 12:30 a.m. on January 30, 2011, to a

alleged in the indictment is purportedly void and

"possible intoxicated driver leaving the store." He arrived

therefore could not be used to elevate his 2011 offense to

at the Exxon at the intersection of Highway 101 and

a felony DW I. He bases this contention on the argument

Highway 380. W hile he was making a turn onto Highway

that the punishment he received for his W ise County

101, Trooper Johnson saw a white Pontiac in the Exxon

conviction was below the minimum punishment range

parking lot. This vehicle matched the description given to

for a Class A misdemeanor DW I. In this regard,

Trooper Johnson over the radio. Trooper Johnson then

Appellant received a punishment of three days in jail,

saw "the Pontiac's brake lights come on," and the car

with the sentence being suspended and Appellant placed

"started backing up." The Pontiac pulled onto Highway

on community supervision for one day. The minimum

101 driving northbound.

range of jail time for a Class A misdemeanor DW I is

thirty days. P EN AL § 49.09(a). Trooper Johnson pulled behind the vehicle and

noticed that the vehicle "accelerated quickly." Trooper

4 W e are addressing [*9] Appellant's second Johnson testified that he checked the speed of the vehicle

issue next because it is jurisdictional in nature. on the radar in his patrol car and that "it was 62 [*11] in

a 55." The posted speed limit on that road was fifty-five

W e review de novo a trial court's ruling on a motion

miles per hour. The prosecutor concluded his direct

to quash an indictment because the sufficiency of a

examination of Trooper Johnson as soon as he elicited

charging instrument is a question of law. Smith v. State,

testimony from Trooper Johnson that he stopped

309 S.W.3d 10, 13--14 (Tex. Crim. App. 2010); State v.

Appellant because of the speeding violation that he

Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

observed. In this regard, it appears that the State treated

Appellant's challenge to the W ise County conviction fails

Appellant's motion to suppress as solely an attack on the

as a matter of law under the holding in Rhodes v. State,

arresting officer's basis for initiating the stop of

240 S.W.3d 882, 892 (Tex. Crim. App. 2007). Rhodes is

Appellant.

applicable because the W ise County conviction was the

result of a plea agreement. The Court of Criminal On cross-examination, Appellant's trial counsel

Appeals held in Rhodes that "[a] defendant who has asked Trooper Johnson about an anonymous tip that

enjoyed the benefits of an agreed judgment prescribing a Trooper Johnson had overheard on the radio. Trooper

Johnson testified that he stopped Appellant because of App. 2007) (Amador I). This burden may be satisfied by a

his speed and not because of the anonymous tip about an showing that one of the statutory exceptions to the

intoxicated person. Trooper Johnson further testified on warrant requirement is met. See Torres v. State, 182

cross-examination that Appellant "eventually stopped" S.W.3d 899, 902 (Tex. Crim. App. 2005).

after the lights on Trooper Johnson's patrol vehicle had

In this case, it is undisputed that no warrant was

been "on for a while." Appellant's counsel obtained a

issued for Appellant's arrest. As a result, the State bore

copy of Trooper Johnson's report during cross-

the burden of establishing the reasonableness of

examination. Based upon the questions asked during

Appellant's detention and arrest. See Young, 283 S.W.3d

cross-examination, it appears that Trooper Johnson noted

at 872; Amador I, 221 S.W.3d at 672--73. Under the

in the report that Appellant "almost struck the guardrail"

Fourth Amendment, a warrantless arrest for an offense

when pulling over. However, Trooper Johnson did not

committed in the officer's presence is reasonable if the

observe [*12] Appellant weaving in his lane. Appellant's

officer has probable cause. Amador v. State, 275 S.W.3d

counsel further elicited testimony from Trooper Johnson

872, 878 (Tex. Crim. App. 2009) (Amador II). "'Probable

during cross-examination that Appellant refused to

cause' for a warrantless arrest exists if, [*14] at the

perform any field sobriety tests and that Appellant told

moment the arrest is made, the facts and circumstances

Trooper Johnson what he had to drink. Near the end of

within the arresting officer's knowledge and of which he

counsel's brief cross-examination, he asked Trooper

has reasonably trustworthy information are sufficient to

Johnson: "So, you arrested him, based upon the odor of

warrant a prudent man in believing that the person

alcohol on his breath?" Trooper Johnson replied in the

arrested had committed or was committing an offense."

affirmative.

Id. The test for probable cause is an objective one,

At the conclusion of the evidence presented during unrelated to the subjective beliefs of the arresting officer,

the suppression hearing, the trial court received closing and it requires a consideration of the totality of the

arguments from the attorneys. The prosecutor argued that circumstances facing the arresting officer. Id. A finding

Trooper Johnson had "probable cause to stop" Appellant of probable cause requires more than bare suspicion but

because of his observation of Appellant's speeding less than would justify conviction. Id. W hether a specific

violation. Appellant's trial counsel responded by arguing search or seizure is reasonable or supported by probable

as follows: cause is a question of law subject to de novo review.

Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App.

And he smells alcohol on his breath, so 2006).

he doesn't do any tests, doesn't do

In the absence of express findings of fact and

anything. No evidence of intoxication

conclusions of law, the trial court's denial of Appellant's

except alcohol on his breath, and he's

motion to suppress constitutes an implicit conclusion by

arrested for DW I.

the trial court that the State carried its burden of proving

It's our position that anything after that, under the totality of the circumstances, Trooper

the stop should be suppressed, because Johnson's warrantless arrest of Appellant was supported

there's no probable cause for his arrest. by probable cause for an offense committed in his

presence. Amador II, 275 S.W.3d at 879. Our task is to

determine whether the trial court, in so concluding, [*15]

On appeal, Appellant does not challenge Trooper abused its discretion. Id. Because of the very limited

Johnson's basis for initiating the traffic stop. Instead, inquiry at the hearing on the motion to suppress regarding

Appellant directs his challenge [*13] on the contention Trooper Johnson's basis for arresting Appellant, we

that Trooper Johnson did not have probable cause to conclude that the trial court erred in denying the motion

arrest him for DW I. 5 to suppress.

Appellant alleges that Trooper Johnson arrested him

5 The State does not assert, nor do we find, that

for DW I "based solely upon the odor of alcohol on

Appellant failed to preserve his challenge to the

Appellant's breath." Appellant additionally contends as

probable cause supporting his warrantless arrest

follows in his brief:

by Trooper Johnson.

A defendant seeking to suppress evidence on the Trooper Johnson did not observe

basis of an alleged Fourth Amendment violation bears anything abnormal about Appellant's eyes

the initial burden of rebutting the presumption of proper or speech; nor did he notice if Appellant

police conduct. Young v. State, 283 S.W.3d 854, 872 swayed when he walked, or any other

(Tex. Crim. App. 2009). A defendant meets this burden signs that might indicate that Appellant

by demonstrating that the challenged search or seizure was intoxicated.

occurred without a warrant. Id. The burden then shifts to

the State to prove that the search or seizure was

reasonable under the totality of the circumstances. W e disagree with Appellant's limited view of Trooper

Amador v. State, 221 S.W.3d 666, 672--73 (Tex. Crim. Johnson's testimony. Trooper Johnson simply was not

asked about any physical observations that he made of guilty. The Court of Criminal Appeals has stated that

Appellant's eyes, speech, or movement; nor was he asked appellate courts are not to speculate as to an appellant's

what effect, if any, these observations may have had on reasons for entering a "guilty" plea or as to whether the

his decision to arrest Appellant. Trooper Johnson's appellant would have done so if the motion to suppress

affirmative response to the question from Appellant's had been granted. See Holmes v. State, 323 S.W.3d 163,

trial counsel about the odor of alcohol indicates that it 172--73 (Tex. Crim. App. 2009); McKenna v. State, 780

was a factor he relied upon in making the decision to S.W.2d 797, 799--800 (Tex. Crim. App. 1989); Kraft v.

arrest Appellant.6 However, the record is silent as to what State, 762 S.W.2d 612, 613--15 (Tex. Crim. App. 1988);

other factors Trooper Johnson [*16] may have relied Paulea v. State, 278 S.W.3d 861, 867 (Tex. App.--

upon in making the decision to arrest. W hether probable Houston [14th Dist.] 2009, pet. ref'd). As long as the

cause exists to justify a warrantless arrest must be evidence that should have been suppressed would in any

considered under the totality of the circumstances measure inculpate the accused, this court must presume

surrounding the arrest. Amador II, 275 S.W.3d at 878. that the trial court's denial of Appellant's motion to

Based on the very limited record developed at the suppress influenced Appellant's decision to plead "guilty"

hearing on the motion to suppress regarding Trooper and is reversible error. See M cKenna, 780 S.W.2d at 799-

Johnson's basis for arresting Appellant, we conclude that -800; Kraft, 762 S.W.2d at 613--15; Paulea, 278 S.W.3d

the trial court erred in determining that the State met its at 867. The record in this appeal indicates that Appellant

burden of proof to show probable cause for Appellant's was subjected to [*18] a mandatory blood draw after his

arrest. To hold otherwise would require us to speculate arrest. W hile the record is silent regarding the results of

on what other factors, if any, Trooper Johnson may have the blood draw, we assume that the results were

relied upon in arresting Appellant, including Appellant's inculpatory based upon Appellant's stipulation to being

refusal to perform field sobriety tests,7 Appellant's intoxicated--a stipulation that occurred after the motion to

response to the question regarding what he had been suppress was denied. Accordingly, we presume that the

drinking, Appellant's speeding violation, and Appellant's trial court's erroneous denial of Appellant's motion to

act of almost striking a guardrail. suppress influenced his decision to enter the stipulation.

Therefore, the error is reversible. W e sustain Appellant's

6 Appellant cites Domingo v. State, 82 S.W.3d first issue.

617, 621--22 (Tex. App.--Amarillo 2002, no pet.),

for the proposition that the odor of alcohol alone Conclusion

is not sufficient to establish probable cause to

W e conclude that Appellant's conviction was

make an arrest for intoxication.

supported by sufficient evidence. Additionally, we uphold

7 See Maxwell v. State, 253 S.W.3d 309, 314

the trial court's denial of Appellant's pretrial motion to

(Tex. App.--Fort Worth 2008, pet. ref'd) (noting

quash the indictment. However, we sustain Appellant's

suspect's refusal to perform field sobriety tests as

first issue challenging the trial court's denial of his

a factor supporting probable cause to make DW I

pretrial motion to suppress.

arrest).

The State responds to Appellant's challenge to the This Court's Ruling

probable cause for the arrest by [*17] asserting that the

W e reverse the judgment of the trial court, and we

trial court did not err in overruling Appellant's motion to

remand this cause to the trial court for further

suppress because "the record is absent of any evidence

proceedings consistent with this opinion.

obtained by the State after Appellant's arrest that would

be subject to suppression." Based on this assertion, the JOHN M. BAILEY

State contends that any error by the trial court in denying

JUSTICE

the motion to suppress is harmless. W e disagree with the

State's analysis. After the trial court erroneously denied March 20, 2015

the motion to suppress, Appellant stipulated to the

allegation that he was driving while intoxicated. In many Publish. See T EX . R. A PP . P. 47.2(b).

respects, Appellant's stipulation is akin to a plea of

APPENDIX B

1 of 99 DOCUMENTS

DAVID LEE CLEM ENT, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 11-13-00055-CR

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

2015 Tex. App. LEXIS 4801

M ay 7, 2015, Opinion Filed

NOTICE: PUBLISH. SEE TEX. R. APP. P. 47.2(B). on our own initiative and tacitly addressed it in our

original opinion by listing the instances wherein

PRIO R H ISTO RY: [*1] On Appeal from the 271st Appellant's counsel addressed the probable cause

District Court, W ise County, Texas. Trial Court Cause supporting [*2] Appellant's arrest. See id. at 532-33

No. CR16160. ("Ordinarily, a court of appeals should review

Clement v. State, 2015 Tex. App. LEXIS 2671 (Tex. App. preservation of error on its own motion."); Jones v. State,

Eastland, Mar. 20, 2015) 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997)

("Preservation of error is a systemic requirement that a

first-level appellate court should ordinarily review on its

JUDGES: Panel consists of: W right, C.J., W illson, J., own motion.").

and Bailey, J.

There are three distinct types of police-citizen

interactions: (1) consensual encounters that do not

OPINION BY: JOHN M. BAILEY

implicate the Fourth Amendment; (2) investigative

detentions that are Fourth Amendment seizures of limited

OPINION

scope and duration that must be supported by a

reasonable suspicion of criminal activity; and (3) arrests,

OPINIO N O N STA TE'S M O TIO N FOR

the most intrusive of Fourth Amendment seizures, that

REHEARING

are reasonable only if supported by probable cause. Wade

The State has filed a motion for rehearing wherein it v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013);

alleges that Appellant did not properly preserve, for State v. Woodard, 341 S.W.3d 404, 410-11 (Tex. Crim.

appellate review, his complaint that his arrest was illegal. App. 2011). The facts in this appeal essentially present

The State bases its preservation contention on two three "seizures" for the purpose of analysis under the

grounds: (1) that Appellant failed to put the State and the Fourth Amendment: (1) Trooper Johnson's initial traffic

trial court on notice that he was contesting the legality of stop of Appellant; (2) Trooper Johnson's continued

his arrest and (2) that Appellant's presentation of the detention of Appellant for the purpose of investigating a

contention during the closing argument was untimely possible offense of driving while intoxicated; and (3)

under T EX . C O D E C RIM . P RO C . A NN . art. 28.01, § 2 (W est Trooper Johnson's arrest of Appellant for driving while

2006). intoxicated.

Preservation of error is a systemic requirement on In the context of the three types of police-citizen

appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. interactions described above, Trooper Johnson's initial

App. 2009). If an issue has not been preserved for appeal, stop and then his continued detention of Appellant for

an intermediate court of appeals should not address the investigative purposes was an "investigative [*3]

merits of that issue. Id. Even though the State did not detention" that must have been supported by reasonable

assert a preservation contention in its initial briefing, we suspicion.1 See Davis v. State, 947 S.W.2d 240, 244-45

previously reviewed the question of preservation of error (Tex. Crim. App. 1997) (If an officer develops reasonable

suspicion during a valid traffic stop that the detainee is

engaged in criminal activity, continued detention is During closing arguments on the motion to suppress,

justified.). Trooper Johnson's subsequent arrest of Appellant's counsel argued as follows:

Appellant constituted another level of seizure that must And he smells alcohol on his breath, so

have been supported by the heightened standard of he doesn't do any tests, doesn't do

probable cause in order to satisfy the Fourth Amendment. anything. No evidence of intoxication

See Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. except alcohol on his breath, and he's

Crim. App. 2011) (citing Alabama v. White, 496 U.S. arrested for DW I.

325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)) ("A

It's our position that anything after

brief investigative detention constitutes a significantly

the stop should be suppressed, because

lesser intrusion upon the privacy and integrity of the

there's no probable cause for his arrest.

person than a full-blown custodial arrest. For this reason,

a warrantless investigative detention may be deemed The arrest led to an interview. The

'reasonable' for Fourth Amendment purposes on the basis interview led to a mandatory blood draw,

of a lesser quantum or quality of information--reasonable based upon the belief that it was his third

suspicion rather than probable cause."). DW I.

1 One might contend that Trooper Johnson's

initial stop of Appellant, followed by his W e concluded that Appellant preserved his complaint

continued detention of Appellant for investigative regarding the probable cause supporting his arrest based

purposes, constituted a single seizure because in part on counsel's closing argument to the trial court

they are portions of the same investigative that "there's no probable cause for [Appellant's] arrest."

detention. W e are treating them as separate

The clearest assertion by Appellant that Trooper

seizures for the purposes of our analysis because

Johnson lacked probable cause to arrest him occurred

Appellant challenged Trooper Johnson's basis for

during the closing statement when defense counsel said:

initiating the traffic stop but Appellant [*4] did

"[T]here's no probable cause for his arrest" (emphasis

not challenge Trooper Johnson's basis for

added). The State contends [*6] that this statement did

continuing the investigative stop prior to his

not constitute a challenge to the legality of Appellant's

arresting Appellant.

arrest because it followed counsel's request to suppress

As noted in our original opinion, the State treated "anything after the stop." The State argues that the

Appellant's written motion to suppress as solely an attack alleged violation was incongruous with the requested

on the arresting officer's basis for initiating the traffic relief because the illegality of the subsequent arrest

stop. In this regard, Appellant's motion to suppress would not preclude the admissibility of evidence seized

addressed the credibility of the anonymous tip and its prior to the illegal arrest. The State is essentially

corroboration by the investigating officer. The prosecutor asserting that, when defense counsel made this argument,

easily overcame this contention by establishing that Appellant was challenging Trooper Johnson's initial basis

Trooper Johnson stopped Appellant for a speeding for stopping Appellant. W e disagree with the State's very

violation rather than upon reliance on the anonymous tip. narrow reading of defense counsel's argument.

However, Appellant also alleged a lack of probable

Trooper Johnson's arrest of Appellant constituted a

cause, the standard that is associated with the required

seizure under the Fourth Amendment that required a

basis for supporting an arrest. Furthermore, the inquiry at

showing under the heightened standard of probable

the hearing on the motion to suppress into Trooper

cause. Defense counsel's argument invoked the probable

Johnson's actions did not end with his initial basis for

cause standard in challenging Appellant's arrest. W e

stopping Appellant. Specifically, Appellant's counsel

disagree that defense counsel's overstatement of the relief

inquired on cross-examination about what transpired

to which he may have been entitled nullified Appellant's

after the stop. As we stated in the original opinion:

challenge to the legality of his arrest. Defense counsel's

argument suggests that evidentiary items were obtained

Appellant's counsel further elicited

as a result of Appellant's arrest, including lab results

testimony from Trooper Johnson during

from a mandatory blood draw. Accordingly, [*7] the

cross-examination that Appellant refused

reference to suppressing evidentiary items recovered

to perform any field sobriety tests and

after the stop would apply to those seized after the arrest.

[*5] that Appellant told Trooper Johnson

what he had to drink. Near the end of Defense counsel's argument was not the only

counsel's brief cross-examination, he reference to Appellant's contention of an illegal arrest. As

asked Trooper Johnson: "So, you arrested noted previously, Trooper Johnson was specifically

him, based upon the odor of alcohol on asked, "So, you arrested him, based upon the odor of

his breath?" Trooper Johnson replied in alcohol on his breath?" Additionally, in Appellant's

the affirmative. written motion to suppress, he referenced probable cause,

the standard associated with arrests under the Fourth

Amendment.2

W e concluded that Appellant preserved his

complaint of an illegal arrest occurring without [*9]

2 The Texas Court of Criminal Appeals has

probable cause because he apprised the trial court of his

stated that "[o]ne might reasonably question

complaint at a time when the trial court was in a position

whether a statement during closing argument

to grant his requested relief. Additionally, Appellant

fairly puts the opposing party and the trial judge

cited the Fourth Amendment as a basis for his motion to

on notice that a party is litigating the existence of

suppress, thereby alerting the State and the trial court of

probable cause." Amador v. State, 221 S.W.3d

the legal basis of his challenge: the Fourth Amendment.

666, 671 n.9 (Tex. Crim. App. 2007) ("Amador

Buchanan v. State, 207 S.W.3d 772, 773, 776 (Tex. Crim.

I"). However, the court did not address the

App. 2006), relied upon by the State, is inapposite. There,

preservation issue in Amador I because the State

the court essentially held that a motion to suppress based

did not petition for review on the issue. Id. The

upon federal and state constitutional principles, not upon

court noted in Amador I that the Beaumont Court

statutory grounds, was not sufficient, in the context of the

of Appeals decided the preservation issue

motion, to also preserve error under Chapter 14 of the

adversely to the State, 221 S.W.3d at 671 n.9; see

Code of Criminal Procedure. Buchanan, 207 S.W.3d at

Amador v. State, 187 S.W.3d 543, 548 (Tex. App.-

773, 776. Here, the motion and the trial court's ruling

-Beaumont 2006), rev'd, 221 S.W.3d 666 (Tex.

were based upon clearly stated Fourth Amendment

Crim. App. 2007). The court's concern expressed

grounds.

in Amador I is inapplicable to the facts in this

case because of the other instances wherein W ith respect to the State's timeliness assertion under

Appellant challenged his arrest. Article 28.01, section 2, the State has not cited any

authority that this timing requirement for pretrial motions

A "point of error on appeal must comport [*8] with

trumps the timeliness requirement for preservation of

the objection made at trial." Wilson v. State, 71 S.W.3d

error under Rule 33.1. Additionally, the State did not

346, 349 (Tex. Crim. App. 2002). As stated in Resendez

present this argument to the trial court for consideration,

v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009):

thereby depriving Appellant of the opportunity to

respond to it. Accordingly, it is not a "theory of law

Rule 33.1(a) of the Texas Rules of

applicable to the case" that is available to justify the trial

Appellate Procedure provides that a

court's erroneous [*10] ruling on Appellant's motion to

complaint is not preserved for appeal

suppress. See State v. Esparza, 413 S.W.3d 81, 89-90

unless it was made to the trial court "by a

(Tex. Crim. App. 2013).

timely request, objection or motion" that

"stated the grounds for the ruling that the As we noted in our original opinion, a defendant

complaining party sought from the trial seeking to suppress evidence on the basis of an alleged

court with sufficient specificity to make violation of the Fourth Amendment bears the initial

the trial court aware of the complaint, burden of rebutting the presumption of proper police

unless the specific grounds were apparent conduct. Young v. State, 283 S.W.3d 854, 872 (Tex.

from the context." Crim. App. 2009); Amador I, 221 S.W.3d at 672. A

defendant meets this burden by demonstrating that the

challenged search or seizure occurred without a warrant.

Resendez, 306 S.W.3d at 312 (quoting T EX . R. A PP . P. Young, 283 S.W.3d at 872; Amador I, 221 S.W.3d at 672.

33.1(a)(1)(A)). "The purpose of requiring a specific The burden then shifts to the State to prove that the

objection in the trial court is twofold: (1) to inform the search or seizure was reasonable under the totality of the

trial judge of the basis of the objection and give him the circumstances. Young, 283 S. W.3d at 872; Amador I,

opportunity to rule on it; (2) to give opposing counsel the 221 S. W.3d at 672-73. The Texas Court of Criminal

opportunity to respond to the complaint." Id. As Appeals has described the State's burden in this situation

explained in Resendez: as follows:

Although there are no technical

considerations or forms of words required W hen a defendant asserts a search and

to preserve an error for appeal, a party seizure violation under the Fourth

must be specific enough so as to "let the Amendment, the defendant bears the

trial judge know what he wants, why he burden of producing evidence to rebut the

thinks himself entitled to it, and do so presumption of proper conduct by law

clearly enough for the judge to understand enforcement. A defendant can satisfy this

him at a time when the trial court is in a burden with evidence that the seizure

proper position to do something about it." occurred without a warrant. If the

defendant satisfies the initial burden, the

burden then shifts to the State to establish

Id. at 312-13 (quoting Lankston v. State, 827 S.W.2d 907, that the seizure was nevertheless

909 (Tex. Crim App. 1992)). reasonable under the applicable standard--

either reasonable suspicion or probable Appellant's response to the question

cause. regarding what he had been drinking,

Appellant's speeding violation, and

Appellant's act of almost striking a

Woodard, 341 S.W.3d at 412 (emphasis added) guardrail.

(footnotes omitted) (citing Amador v. State, 275 S.W.3d

872, 878 (Tex. Crim. App. 2009) (Amador II)).

The State contends that this statement indicates that we

As we stated in our original opinion, "[I]t is [*11]

relied upon a subjective test rather than an objective test

undisputed that no warrant was issued for Appellant's

for determining probable cause. W e disagree. The above-

arrest. As a result, the State bore the burden of

quoted statement followed a sentence wherein we

establishing the reasonableness of Appellant's detention

commented "on the very limited record developed at the

and arrest."3 Although the State met its burden to

hearing on the motion to suppress regarding Trooper

establish the reasonableness of the initial stop, the State

Johnson's basis for arresting Appellant." Simply put, we

did not develop the record to support the continued

were expressing our dilemma in conducting an analysis

investigatory detention of Appellant after the initial stop

of the totality of the circumstances facing the arresting

or the subsequent arrest of Appellant. Even though a

officer on a very limited record rather than basing our

portion of the facts pertaining to Appellant's continued

analysis on Trooper Johnson's subjective beliefs.

detention and subsequent arrest were developed during

Trooper Johnson's cross-examination, the evidence did Finally, we note that a pretrial motion to suppress

not address "the totality of the circumstances facing the evidence is "nothing more than a specialized objection to

arresting officer." W e reviewed the portion of the the admissibility of that evidence" that is interlocutory in

supporting facts adduced at trial and concluded that they nature. Black v. State, 362 S.W.3d 626, 633 (Tex. Crim.

did not constitute probable cause under an objective App. 2012). As such, a pretrial motion to suppress

standard. evidence may be the [*13] subject of reconsideration

and revision as is any other ruling on the admissibility of

3 The hearing on the motion to suppress began evidence. Id. Accordingly, the State will not be precluded

with the prosecutor stating, "The State will from seeking a reconsideration of the suppression on a

stipulate that he was stopped without warrant. . . . more fully developed record upon the remand of this case

And, therefore, the burden shifts to the State for to the trial court.

probable cause of action."

The State's motion for rehearing is denied.

The State additionally contends in its motion for

/s/ John M. Bailey

rehearing that we used the wrong standard for

determining probable cause wherein we stated: JOHN M. BAILEY

JUSTICE

To hold otherwise [*12] would require

us to speculate on what other factors, if May 7, 2015

any, Trooper Johnson may have relied

upon in arresting Appellant, including Publish. See Tex. R. App. P. 47.2(b).

Appellant's refusal to perform field

s o b r ie ty te sts, [fo o tn o te o m itte d ]