# Davis v. State

> Court of Criminal Appeals of Texas · June 4, 1997 · 947 S.W.2d 240

URL: https://www.frixlaw.com/law-library/cases/9769822

## Case

- **Full name:** Martin DAVIS, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 4, 1997
- **Citations:** 947 S.W.2d 240; 1997 Tex. Crim. App. LEXIS 43; 1997 WL 292676
- **Precedential status:** Published
- **Opinion:** Dissent by Meyers
- **Judges:** Baird, Mansfield, Keller, Meyers, McCormick
- **Cited by:** 1,164 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769822

## How later opinions describe it (automated extraction)

- explaining that continued detention based on officer’s conclusion that defendant “did not appear to be someone who was on a business trip . . . was not based upon articulable facts which, taken together with rational inferences from those facts, would warrant a man of reasonab…
- finding that there must be "some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime"
- holding that after officers determined that driver *328 was not intoxicated, continued detention of driver and search of his car without his consent was unreasonable where not supported by reasonable suspicion of other criminal activity
- holding that after officers determined that driver was not intoxicated, continued detention of driver and search of his car without his consent was unreasonable where not supported by reasonable suspicion of other criminal activity
- holding that detention may continue only so long as “articulable facts” support reasonable suspicion that suspect was engaged in criminal activity

## Opinion text

MEYERS, Judge,
dissenting.
The majority disagrees with the court of appeals in this case with good reason. In fact, had I been a judge on the court of appeals I most probably would have joined Judge Burgess in concluding that the detention of appellant’s vehicle was constitutionally problematic. Davis v. State, 923 S.W.2d 781 (Tex.App. — Beaumont 1996)(Burgess, J., dissenting). But I am not a judge on the court of appeals — I am a judge on the Court of Criminal Appeals. As such, I am bound to respect the judgment of the court of appeals so long as it “fairly addresses [the issues raised on appeal], using the correct legal standard, considering all relevant evidence in the record, and affording proper deference to the trial court as primary factfinder”. Arcila v. State, 834 S.W.2d 357, 360 (Tex.Crim.App. 1992). Of course, when the court of appeals fails in any one of these duties, this Court should step in and both articulate the way in which it erred and also set out the correct way of doing things. After that, we should send the case back to the court of appeals so that it can make a new determination in light of our suggestions. To do more is intrusive, not instructive. Id.
In the present cause, the Ninth Court of Appeals determined that the trial court did not abuse its discretion in denying appellant’s motion to suppress. It came to this determination after considering six factors which, it found, “gave rise to reasonable suspicion ... that criminal activity was afoot”. But the court of appeals should not have considered the three of these six factors which arose only after the initial purpose of the stop had ended. In other words, in deciding whether reasonable suspicion existed to justify detaining appellant beyond the point at which the officers determined he was not intoxicated, the court of appeals should have considered only those factors that the officers could have known about at that point. Pursuant to a license check on the vehicle that appellant was driving and a conversation between the officers and appellant, the officers determined that the vehicle was borrowed and that appellant’s story that he was a businessman evaluating some real estate in Houston was problematic because it conflicted with that of his passenger and did not seem plausible in light of appellant’s attire, which the officers deemed too casual for someone on a purported business trip. But, since both the license check and the conversation with appellant came after the officer’s determined appellant was not intoxicated, the court of appeals should not have considered any factors gleaned from either in deciding whether the officers’ had reasonable suspicion to further detain appellant. Thus, the court of appeals should have considered only whether the remaining factors, that appellant was traveling late at night, that he seemed to want to keep the officers away from his ear, and that he was “really nervous”, amounted to conduct that is more consistent with criminal activity than with innocent activity such that reasonable suspicion to constitutionally justify a further detention of appellant and his vehicle existed. Saenz v. State, 842 S.W.2d 286, 289 (Tex.Crim.App.1992). Because the court of appeals did not do this, we ought to remand this case to them and allow them the opportunity to do so.
I dissent to the majority’s de novo review of the trial court’s ruling. 1
. In her concurring opinion, Judge Keller applauds the majority s use of de novo review in *251 this case and, in so doing, suggests that in setting the appropriate standard of review for this Coiirt we ought to "follow the Supreme Court’s lead” in Ornelas-Ledesma v. United States, - U.S. -, 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996) (mandating de novo appellate review of probable cause and reasonable suspicion findings in federal court). In conducting its de novo review in this case, the majority does not rely at all on Omelas-Ledesma. This is probably because the majority understands that the holding in Ome-las-Ledesma did not address the appropriate standard of review for discretionary review courts like this Court, but instead set out the appropriate standard of review for appellate courts reviewing trial court decisions. No doubt, in mandating de novo review on questions of probable cause and reasonable suspicion in the lower appellate courts, the Supreme Court noted its own practice of conducting de novo reviews for support that appellate courts should do the same. But dicta in a Supreme Court opinion that applies only to federal courts ought not be thought of as persuasive authority on this Court, especially when this Court has already stated that we should not be conducting de novo reviews in circumstances like the one presented here. Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App. 1992). The concurrence contends that Arcila extends only to factual questions, not to application of law to fact questions. Yet the concurring opinion does not explain what we could have meant in Arcila when we stated that "[o]ur principal role as a court of last resort is the caretaker of Texas law, not the arbiter of individual applications ”. Id. at 360 (emphasis added). Nor does the concurring opinion explain how the question of whether probable cause or reasonable suspicion exist are any more legal than the question in Arcila , which was whether the police had obtained adequate consent to search appellant’s residence. As with probable cause and reasonable suspicion, we have a body of cases that, taken together, set out when the police have obtained consent to search.
Furthermore, if it is true, as the concurring opinion, citing Judge Clinton in Villarreal v. State, 935 S.W.2d 134, 143 (Tex.Crim.App.1996) (Clinton, J., concurring), contends, that "the appropriate standards of review on appeal and on discretionary review are ‘functionally identical’ questions”, then didn't we essentially determine these questions in DuBose v. State, 915 S.W.2d 493 (Tex.Crim.App. 1996) and State v. Carter, 915 S.W.2d 501 (Tex.Crim.App.1996), decided just this past year? In fact, in his Villarreal concurrence, Judge Clinton adhered to the basic tenet of DuBose and Carter that "practically all applications of law to fact should be left to the trial court in the first instance, subject to a deferential standard of appellate review”. Villarreal v. State, 935 S.W.2d at 142 (Clinton, J., concurring). To the best of my knowledge, DuBose and Carter have not been overruled yet.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769822. Public record. Not legal advice.