                                                                     PD-0467-15
                   PD-0467-15                       COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                  Transmitted 4/24/2015 10:24:51 AM
                                                     Accepted 4/24/2015 3:52:17 PM
                                                                     ABEL ACOSTA
                 NO._________________
                                                                             CLERK

                       IN THE

           COURT OF CRIMINAL APPEALS

                      OF TEXAS



           CHARLES JEROME MCCLENTY
                    Petitioner

                          v.

                 THE STATE OF TEXAS
                      Respondent



     Petition is in Cause No.1312934 from County
  Criminal Court No. Three of Tarrant County, Texas,
         and Cause No. 02-14-00184-CR in the
   Court of Appeals for the Second District of Texas



     PETITION FOR DISCRETIONARY REVIEW



                               Kimberley Campbell
                               TBN: 03712020
                               Factor, Campbell & Collins
                               Attorneys at Law
                               5719 Airport Freeway
                               Phone: (817) 222-3333
April 24, 2015
                               Fax: (817) 222-3330
                               Email: lawfactor@yahoo.com
                               Attorneys for Petitioner
                               Charles Jerome McClenty
              IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s final judgment,
and the names and addresses of all trial and appellate counsel.

Trial Court Judge:                H on. Billly M ills, judge, C ounty
                                  Criminal Court No. 3, Tarrant County

Petitioner:                       Charles Jerome McClenty

Petitioner’s Trial Counsel:       Hon. Kimberley Campbell
                                  TBN: 03712020
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117

Petitioner’s Counsel              Hon. Abe Factor
on Appeal:                        TBN: 06768500
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Hon. Andrea Hunter
                                  TBN: 24089148
                                  Hon. Jonathan Miller
                                  TBN: 24073569
                                  District Attorney’s Office
                                  401 W. Belknap
                                  Fort Worth, Texas 76196

Appellee’s Counsel                Hon. Charles Mallin
on Appeal:                        TBN: 12867400
                                  Hon. Andy Porter
                                  TBN: 24007857
                                  District Attorney’s Office
                                  401 W. Belknap Street
                                  Fort Worth, Texas 76196


                                    ii
                                   TABLE OF CONTENTS
                                                                                                           page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 1

GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

I.       The Court of Appeals erred when it affirmed the trial court’s
         denial of McClenty’s motion to suppress. . . . . . . . . . . . . . . . . . . 2

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         B.        Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         C.        Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

         D.        Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 0

         E.        Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

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



                                                       iii
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                    iv
                         INDEX OF AUTHORITIES

Cases                                                                           page

Amador v. State,
     221 S.W.3d 666 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 7, 8

Brown v. Texas,
     443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). . . . . . . . . 14, 16

State v. Castleberry,
       332 S.W.3d 460 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . 9

Castro v. State,
       202 S.W.3d 348 (Tex. App.–Fort Worth 2006, pet. ref’d). . . . . .16

United States v. Cortez,
      449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). . . . . . . . . . . .1 5

Crain v. State,
      315 S.W.3d 43 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . 11

Davis v. State,
      947 S.W.2d 240 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . 11

Derichsweiler v. State,
      348 S.W.3d 906 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . 8, 9, 10

Estrada v. State,
      154 S.W.3d 604 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . 8

Ford v. State,
       158 S.W.3d 488 (Tex. Crim. App. 2005). . . . . . . . . . . . . . 1. 4, 15, 16

Garcia v. State,
      43 S.W.3d 527 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . . 14

Guzman v. State,
     955 S.W.2d 85 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . 7-8

                                          v
Head v. State,
      131 Tex. Crim. 96, 96 S.W.2d 981 (1936). . . . . . . . . . . . . . . . . . . .1 2

Hernandez v. State,
     60 S.W.3d 106 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . . 16

Holmes v. State,
     323 S.W.3d 163 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . 17

Illinois v. Wardlow,
        528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). . . . . . . . . . 13

Johnson v. State,
      68 S.W.3d 644 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . 8

State v. Kerwick,
       393 S.W.3d 270 (Tex. Crim. App. 2013). . . . . . . . . . . . 8, 10, 12, 13

Martinez v. State,
      348 S.W.3d 919 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . 11, 13

McClenty v. State,
     02-14-00186-CR,2015 WL 1407759 (Tex. App.–
            Fort Worth, March 26, 2015, no. pet. h.)
                   (mem. op., not designated for publication). 2, 3, 6, 7

State v. Mendoza,
       365 S.W.3d 666 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . 8

Mosley v. State,
      983 S.W.2d 249 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . 17

Ornelas v. United States,
      517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). . . . . 8

Reed v. Buck,
      370 S.W.2d 867 (Tex. 1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12



                                              vi
Scott v. State,
       227 S.W.3d 670 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . 17

Snowden v. State,
     353 S.W.3d 817 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . 16

Terry v. Ohio,
       392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . . 8, 9, 11, 14, 15

Woods v. State,
     152 Tex. Crim. 338, 213 S.W.2d 685 (1948). . . . . . . . . . . . . . . . . .1 2

Constitutions

U.S. C ONST. AMEND. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Statutes

T EX. P ENAL C ODE A NN. § 49.04(d) (West Supp. 2014). . . . . . . . . . . . . . .1

Court Rules

T EX. R. A PP. P. 44.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 17




                                                   vii
         STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                    STATEMENT OF THE CASE

      On January 30, 2013, Charles Jerome McClenty (“Mr. McClenty”

or “Appellant”) was charged by information and complaint with

driving while intoxicated. (C.R. 5, 6); See Tex. Penal Code Ann. §

49.04(d) (West Supp. 2014). On January 31, 2014, a hearing on Mr.

McClenty’s motion to suppress was held in County Criminal Court No.

Three of Tarrant County, the Honorable Billy Mills, presiding. (R.R.

passim). At the conclusion of the hearing, the trial court overruled Mr.

McClenty’s motion. (C.R. 17; R.R. 31). On March 12, 2014, Mr.

McClenty pled guilty to the charged offense. (C.R. 18, 19). A timely

Motion for New Trial was filed on March 18, 2014, which was

overruled by operation of law. (C.R. 20). A Timely Notice of Appeal

was filed on March 18, 2014. (C.R. 20). This appeal ensued.

           STATEMENT OF PROCEDURAL HISTORY

      The opinion of the Second Court of Appeals Affirming Mr.

McClenty’s judgment was handed down on March 26, 2015. See

                                   1
McClenty v. State, 02-14-00186-CR,2015 WL 1407759 (Tex. App.–Fort

Worth, March 26, 2015, no. pet. h.) (mem. op., not designated for

publication). This timely Petition for Discretionary review ensued.

                      GROUNDS FOR REVIEW

                   GROUND FOR REVIEW ONE

I.    The Court of Appeals erred when it affirmed the trial court’s
      denial of McClenty’s motion to suppress.

                      REASONS FOR REVIEW

1.    The decision by the Second Court of Appeals has decided an

important question of state law in a way that conflicts with the

applicable decisions of the Court of Criminal Appeals.

2.    The Second Court of Appeals has so far departed from the

accepted and usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for an exercise of the Court

of Criminal Appeals’ power of supervision.

                             ARGUMENT

              GROUND FOR REVIEW ONE (Restated)

I.    The Court of Appeals erred when it affirmed the trial court’s
      denial of McClenty’s motion to suppress.

      At trial , Mr. McClenty filed a motion to suppress on the grounds

that the traffic stop which led to his arrest for suspicion of driving

                                    2
while intoxicated was made without reasonable suspicion. See

McClenty, 2015 WL 1407759 at *1. Because this petition is predicated

upon error by the Second Court of Appeals in its review of Mr.

McClenty’s complaint on appeal, a review of the evidence presented

and events which transpired below is in order.

      A.     Facts

      On January 26, 2013, Mark Allen, a manager at Roxie’s Bar and

Grill in North Richland Hills, Texas, called 9-1-1 to report a disturbance

in the parking lot. (R.R. 7-8, 10, 16). Officer Matthew Visser (“Officer

Visser”) was dispatched to the scene. (R.R. 16). During the examination

of Officer Vesser at the suppression hearing, the following transpired:

Q.    When you pulled up to Roxie's what did you see?

A.    When I pulled up to Roxie's the call indicated
      there was possibly six more persons possibly
      getting ready to fight or fight in the parking
      lot. When I pulled in the parking lot I noticed
      the manager, Mr. Allen, pointing out a vehicle
      that had left.

Q.    Now, you said you noticed the manager,                         Mr.
      Allen. Had you had prior dealings with                         him
      before this particular date?

A.    Yes, I have.

Q.    And what had been the context of the other
      times that you had come in contact with him?

A.    Most     of    the    times       it's   been     disturbances

                                    3
       involving intoxicated persons, persons that
       have been arrested for public intoxication.

Q.     So at that point when you saw Mr. Allen, did
       you believe that he was the individual that had
       called   the   police   or   someone   at   his
       establishment?

A.     Yeah, I believe so. I believe he was the
       contact person on our call sheet of who had
       called.

Q.     So you said when you saw him what did you see
       him do?

A.     He was indicating with his hand pointing at a
       vehicle going -- like indicating that the
       vehicle went that way.

Q.     Okay. And did you see the vehicle                              that     you
       believed him to be pointing to?

A.     Yes, I did.

Q.     What did you do at that point?

A.     I saw the vehicle pulling into the pump area of
       a gas station.     Once I located the vehicle,
       I initiated my lights. 1

                       * * *

Q.     Had  you   had  occasions   in  the   past--you
       mentioned earlier in your testimony you had
       responded to Roxie's and people were arrested
       for public intoxication. Had you had occasion
       in the past to respond to Roxie's for fights or
       other altercations?

A.     Yes.

1

 Appellant was identified as the driver of the vehicle stopped by Officer Visser.
(R.R. 20).

                                         4
     MS. CAMPBELL    (Defense   Attorney):   Objection
     relevance.

     THE COURT: Overruled.

Q.   And so at the time that you initiated the
     traffic stop of the defendant, what were you
     stopping him for?

A.   To investigate whether breach of the peace or
     an assaultive offense had taken place.

           * * *

Q. (Defense Attorney): And at that time you stated
     that your probable cause for this arrest, under
     probable cause for arrest, was that you were
     informed by dispatch that one of the witnesses
     involved had just left the scene and that one
     of the subjects appeared as if they were going
     to fight. And you did not receive information
     that there was a fight, had you?

A.   Not at that point, no.

Q.   And when the general manager of Roxie's pointed
     to the car, he didn't tell you there had been a
     fight, did he?

A.   No.

Q.   So you didn't have any information that there
     had  been   a  fight?  You  didn't  have  any
     information that anyone was intoxicated even,
     did you?

A.   The only information I had, based off of what I
     had, was possibly a breach of peace.

MS. CAMPBELL:       Pass the witness.

MS. HUNTER:     One moment, Your Honor.

                    (Pause)


                           5
                    REDIRECT EXAMINATION

BY MS. HUNTER

Q.    Just to clarify, Officer Visser,                      you    were
      dispatched to a disturbance?

A.    That is correct.

Q.    Okay. And at that point you didn't know for
      sure if the disturbance was verbal or physical?

A.    It had indicated the people were ready to
      fight. As I'm getting closer to the scene
      itself, dynamics, we don't know whether a fight
      had occurred, that information is relayed to
      our dispatch, if there's more information
      that's relayed to them. So I had no idea
      whether they were still on the line with the
      complainant, person who had called, or whether
      or not an assault had occurred.

Q.    But at that point when you arrived, what you
      knew was that the bar manager was pointing to
      someone that you believed to be involved in
      this either verbal or physical altercation?

A.    Correct.

(R.R. 17-18, 21-22, 23-25).

The trial court subsequently denied the motion to suppress. (C.R. 17;
R.R. 31).

      B.     Opinion Below

      The court of appeals correctly identified the standard of review

to be utilized by a reviewing court when assessing a trial court’s denial

of a motion to suppress. See McClenty, 2015 WL 1407759 at *1 (“We



                                    6
review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.”) (citations omitted). The court further

correctly set forth the legal test used in assessing a finding of

reasonable suspicion. Id. at *2 (“Reasonable suspicion exists when,

based on the totality of the circumstances, the officer has specific,

articulable facts that when combined with rational inferences from

those facts, would lead him to reasonably conclude that a particular

person is, has been, or soon will be engaged in criminal activity.”)

(citations omitted).

      However, the court of appeals then misapplied those correctly-

stated fundamentals in affirming the trial court’s ruling.2 Id. at *3.

      C.     Controlling Law

             1.        Standard of Review

      An appellate court must review a trial court’s ruling on a motion

to suppress evidence under a bifurcated standard of review. Amador v.

State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955



2

 Curiously, the court of appeals “supplemented” the evidence presented
at the suppression hearing when it “enriched” the detaining officer’s
testimony by adducing that the officer “might have meant” disorderly
conduct when he mentioned breach of the peace on the witness stand. See
McClenty, 2015 WL 1407759 at *2 n.3.

                                    7
S.W.2d 85, 89 (Tex. Crim. App. 1997). The reviewing court will give

almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation

of   credibility   and    dem eanor,     but    we    review    de    novo

application-of-law-to-fact questions that do not turn on credibility and

demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604,

607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.

Crim. App. 2002). In unlawful- detention cases, whether the facts

known to the officer at the time of the detention constituted a

reasonable suspicion is reviewed do novo. Ornelas v. United States, 517

U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); State v.

Mendoza, 365 S.W.3d 666, 670 (Tex. Crim. App. 2012).

             2.     General Fourth Amendment Principles

      “The Fourth Amendment to the United States Constitution

permits a warrantless detention of a person, short of a full-blown

custodial arrest, if the detention is justified by reasonable suspicion.”

State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013), citing Terry

v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).

Detentions and arrests are Fourth Amendment seizures and therefore

                                     8
implicate Fourth Amendment protections. State v. Castleberry, 332

S.W.3d 460, 466 (Tex. Crim. App. 2011). “[W]hen a seizure takes the

form of a detention, Fourth Amendment scrutiny is necessary-it must

be determined whether the detaining officer had reasonable suspicion

that the citizen is, has been, or is about to be engaged in criminal

activity.” Id. (citations omitted).

      Under the Fourth Amendment, a warrantless detention of the

person that amounts to less than a full-blown custodial arrest must be

justified by a reasonable suspicion. See Derichsweiler, 348 S.W.3d at 914.

A police officer has reasonable suspicion to detain if he has specific,

articulable facts that, combined with rational inferences from those

facts, would lead him reasonably to conclude that the person detained

is, has been, or soon will be engaged in criminal activity. See Terry, 392

U.S. at 21–22, 88 S.Ct. at 1880. This standard looks to the totality of the

circumstances; if the circumstances combine to reasonably suggest the

imminence of criminal conduct, an investigative detention is justified.

Derichsweiler, 348 S.W.3d at 914. An appellate court will consider the

cumulative information known to the cooperating officers, including

a 911 dispatcher. Id. at 914–15. When, as here, a known

citizen-informant provides information, the only question is whether

                                      9
that information, viewed through the prism of the detaining officer’s

particular level of knowledge and experience, objectively supports a

reasonable suspicion to believe that criminal activity is afoot. Id. at 915.

             D.     Discussion

       The manager of the bar, Mark Allen, testified at the hearing that

on the night in question, he observed an argument, that no physical

violence ever occurred, he never heard Mr. McClenty make any

physical threats against anyone, and that when he was asked to leave

the club, Mr, McClenty complied. (R.R. 11-13). Additionally, Officer

Visser admitted at the hearing that he had not had any reports of a

fight occurring, either from his dispatcher or from Mr. Allen. (R.R. 23-

25).

       In Kerwick,3 393 S.W.3d at 275, a 9-1-1 caller had notified the

police that “several people were fighting in front of [the] bar”; and the

responding officer spoke with the owner of a car damaged in the

altercation, who pointed out the vehicle the person responsible was a

passenger. Id. Noticeably different from the case here, in Kerwick, there



3

 In her closing argument, the prosecutor stated that Kerwick was
controlling in this instance. (R.R. 30). As will be shown below, however,
the facts here distinguish the instant case from Kerwick.

                                     10
was a crime reported by the 9-1-1 caller–assault–and the responding

officer personally observed the result of another crime–criminal

mischief. The State’s own witnesses here could not articulate anything

occurring on the night in question except for an argument; more

importantly, nothing more was reported in the 9-1-1 call to have

occurred, either. (R.R. 11-13, 23-25).

      To justify an investigative detention, the officer must have

specific articulable facts, which, premised upon his experience and

personal knowledge, when coupled with the logical inferences from

those facts would warrant the intrusion on the detainee. Davis v. State,

947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (quoting Terry v, 392 U.S. at

21, 88 S.Ct. at 1880. These facts must amount to more than a mere

hunch or suspicion. See Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim.

App. 2010). The articulable facts used by the officer must create 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. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).

      An argument is most assuredly not a crime. Nor under the fact

reported and known to Officer Visser, is an argument related to a

                                    11
crime. The absolute paucity of the information known to Officer Visser

is aptly shown where he candidly admits that “[t]he only information

I had, based off of what I had, was possibly a breach of peace.” (R.R.

25). However, an objective belief in “possibly a breach of the peace” is

not supported here under the facts. Critically–and as ignored by the

court of appeals–“[a]ctual or threatened violence is an essential element

of a breach of the peace.” Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d

685, 687 (1948) (quoting Head v. State, 131 Tex. Crim. 96, 99, 96 S.W.2d

981, 982 (1936)).4 As stated previously, no violence occurred, was

threatened, or reported. (R.R. 11-13, 23-25). The absence of violence or

threats of violence distinguishes the instant case from the facts set forth

in Kerwick, where actual physical violence was reported by the 9-1-1

caller. See Kerwick, 393 S.W.3d at 275. Further, though public

intoxication might under some circumstances be considered a breach

of the peace, Officer Visser had no reports that anyone involved in the

argument was intoxicated. (R.R. 24).

      Further separating the instant case from Kerwick are the events


4

 See Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex. 1963) (explaining simply
because certain cases had “not been cited in recent years,” such “ancient
cases” do not “just fade[ ] away”; instead, “unless there is some good
reason for overruling them, they should not be disregarded”).

                                    12
surrounding Officer Visser’s initial detention of Mr. McClenty and

McClenty’s peaceful departure from the scene. In Kerwick, the driver of

the suspect vehicle had attempted to drive away after the responding

officer approached her vehicle, a circumstance which the Court of

Criminal Appeals held to be suggestive of wrongdoing and a factor to

be considered under the totality of the circumstances in a reasonable

suspicion analysis. See id. at 276 (citing Illinois v. Wardlow, 528 U.S. 119,

125-26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Here, Mr. McClenty’s

vehicle had already left Roxie’s Bar when Officer Visser arrived, and

had gone so far as to pull into a nearby gas station parking lot. (R.R.

23). Mark Allen testified that Mr. McClenty’s vehicle was already out

of his sight when Officer Visser’s patrol car arrived. (R.R. 9). Unlike the

facts in Kerwick, McClenty’s departure was not in response to an

approach by the police, further negating any support for a reasonable

suspicion that McClenty was involved in unusual activity that was

somehow related to crime. C.f., Kerwick, 393 S.W.3d at 276; see also

Martinez, 348 S.W.3d at 923.

       The de novo determination of reasonable suspicion is considered

under the totality of the circumstances from an objective standpoint,

disregarding the subjective intent of the detaining officer. Garcia v.

                                     13
State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The record here

reveals an absence of any facts allowing an appellate court to determine

the circumstances upon which Officer Visser could reasonably

conclude that Mr. McClenty actually was, had been, or soon would

have been engaged in criminal activity. See Ford v. State, 158 S.W.3d 488,

493 (Tex. Crim. App. 2005) (citing Garcia, 43 S.W.3d at 530).

      When a trial court is not presented with such facts, the detention

cannot be “subjected to the more detached, neutral scrutiny of a judge

who must evaluate the reasonableness of a particular search or seizure

in light of the particular circumstances.” Ford, 158 S.W.3d at 493

(quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). And “[w]hen such a stop

is not based on objective criteria, the risk of arbitrary and abusive

police practices exceeds tolerable limits.” Ford, 158 S.W.3d at 493

(quoting Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357

(1979)(alterations in citing authority).

      Finally, Officer Visser opined that many of his previous dealings

with Mark Allen and his service calls to Roxie’s Bar had dealt with

persons who were intoxicated. (R.R. 18, 21). It is true that law

enforcem ent     training    or   experience     m ay   factor   into   a

reasonable-suspicion analysis. Ford, 158 S.W.3d at 494 (quoting United

                                    14
States v. Cortez, 449 U.S. 411, 419, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

The United States Supreme Court has stated, “objective facts,

meaningless to the untrained, can be combined with permissible

deductions from such facts to form a legitimate basis for suspicion of

a particular person and for action on that suspicion.” Ford, 158 S.W.3d

at 494 (quoting Cortez, 449 U.S. at 419, 101 S.Ct. 690). “But reliance on

this special training is insufficient to establish reasonable suspicion

absent objective factual support.” Ford, 158 S.W.3d at 494 (citing Cortez,

449 U.S. at 419, 101 S.Ct. 690). Though a report of possibly intoxicated

persons in or near Roxie’s Bar is nowhere in the record, it is of

particular note that in his probable cause arrest affidavit made

pertaining to Mr. McClenty’s arrest, Officer Visser testimony revealed

that he made no mention of possible intoxication as a supporting fact

or inference for his initial detention of Mr. McClenty. (R.R. 22-24).

Officer Visser was without specific, articulable facts that, combined

with rational inferences from those facts, would lead him reasonably

to conclude that Mr. McClenty was, had been, or soon would be

engaged in criminal activity. See Terry, 392 U.S. at 21–22, 88 S.Ct. at

1880. Thus, the detention of Mr. McClenty was arbitrary, abusive, and

exceeded tolerable limits. Ford, 158 S.W.3d at 493 (quoting Brown, 443

                                    15
U.S. at 52, 99 S.Ct. 2637).

      The trial court erred when it denied Mr. McClenty’s motion to

suppress. U.S. C ONST. AMEND. IV; see also Ford, 158 S.W.3d at 494.

      E.     Harm Analysis

      Having found error, this Court must conduct a harm analysis to

determine whether the error calls for reversal of the judgment. See T EX.

R. A PP. P. 44.2. The harm analysis for the erroneous admission of

evidence obtained in violation of the Fourth Amendment is rule

44.2(a)’s constitutional standard. Hernandez v. State, 60 S.W.3d 106, 108

(Tex. Crim. App. 2001); Castro v. State, 202 S.W.3d 348, 359 (Tex.

App.–Fort Worth 2006, pet. ref’d). Accordingly, this Court must reverse

the trial court’s judgment unless it can determine beyond a reasonable

doubt that the error did not contribute to Appellant’s conviction or

punishment. T EX. R. A PP. P. 44.2(a). The harmless error inquiry under

Rule 44.2(a) should adhere strictly to the question of whether the error

committed in a particular case contributed to the verdict obtained in

that case. Snowden v. State, 353 S.W.3d 817, 821 (Tex. Crim. App. 2011).

A reviewing court is called on to examine whether the error adversely

affected “the integrity of the process leading to the conviction.” Scott v.

State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007). The primary concern

                                    16
is whether there is a “reasonable possibility” that the error might have

contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998).

      The question is whether the trial court’s denial of Mr. McClenty’s

motion to suppress contributed to McClenty’s decision to plead guilty.

See, e.g., Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim. App. 2010).

The plea agreement in this case contain the handwritten notation that

“Defendant reserves right to appeal denial of pretrial motion.” (C.R.

18). Such a specific reference affirmatively demonstrates that the denial

of his motion to suppress is what directly caused Mr. McClenty to

decide to enter a guilty plea. Therefore, this Court cannot determine

beyond a reasonable doubt that the trial court’s erroneous denial of Mr.

McClenty’s motion to suppress did not contribute to his conviction or

punishment. Tex. R. App. P. 44.2(a).

                        PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Court grant discretionary review and allow each party

to fully brief and argue the issues before the Court of Criminal

Appeals, and that upon reviewing the judgment entered below, that

this Court reverse the opinion of the Second Court of Appeals and

                                    17
reverse the conviction entered below.

                                         Respectfully submitted,

                                         /s/Kimberley Campbell
                                         Kimberley Campbell
                                         TBN: 03712020
                                         Factor, Campbell & Collins
                                         Attorneys at Law
                                         5719 Airport Freeway
                                         Fort Worth, Texas 76117
                                         Phone: (817) 222-3333
                                         Fax: (817) 222-3330
                                         Email: lawfactor@yahoo.com
                                         Attorneys for Petitioner
                                         Charles Jerome McClenty

                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
4,416.

                                         /s/Kimberley Campbell
                                         Kimberley Campbell


                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 27th
day of April , 2015.

                                         /s/Kimberley Campbell
                                         Kimberley Campbell




                                    18
                          APPENDIX

1.   Opinion of the Second Court of Appeals.




                               19
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00184-CR


CHARLES JEROME MCCLENTY                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1312934

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

                                  I. INTRODUCTION



suppress, he pleaded guilty to driving while intoxicated. In one issue, McClenty

argues that the trial court abused its discretion by denying his suppression




      1
      See Tex. R. App. P. 47.4.
motion because the arresting officer allegedly lacked reasonable suspicion to

stop him. We will affirm.

                      II. FACTUAL AND PROCEDURAL BACKGROUND

       Mark Allen, the general manager of a bar, called 911 because a verbal

altercation between McClenty and others at the bar

Allen described McClenty as the most irate person involved. Officer Matthew

Visser responded to the call. From the dispatch, he understood that six or more

                                     y to fight                              Officer

Visser knew Allen from          prior calls involving intoxicated persons.

       When Officer Visser arrived at the bar about two or three minutes after the

call, he saw Allen standing outside pointing at a car that was leaving; Allen was

pointing                              loudly

there. . . . [T]hat vehicle                                 Officer Visser followed

McClenty and stopped him by activating his lights and siren.

       Officer Visser testified that he stopped McClenty to investigate whether a

breach of the peace or an assault had taken place. When Officer Visser began

talking with McClenty, he smelled a strong odor of alcoholic beverage and

                              eyes were bloodshot and watery and that he was

speaking kind of thick-              Officer Visser arrested McClenty for driving

while intoxicated, and McClenty moved to suppress the evidence of his

intoxication, arguing that Officer Visser lacked reasonable suspicion to stop his

car.


                                         2
                                 III. STANDARD OF REVIEW

      W

bifurcated standard of review.     Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).



fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652 53 (Tex. Crim. App. 2002).

      When, as here, there are no explicit fact findings and neither party timely

requested findings and conclusions from the trial court, we imply the necessary



                                                       orts those findings. State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v.

State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).       We then review the trial

                       novo unless the implied fact findings supported by the

record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808,

819 (Tex. Crim. App. 2006).




                                         3
            IV. REASONABLE SUSPICION FOR AN INVESTIGATIVE STOP

                       A. The Law on Reasonable Suspicion

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he or she has reasonable

suspicion to believe that an individual is violating the law. Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the

circumstances, the officer has specific, articulable facts that when combined with

rational inferences from those facts, would lead him to reasonably conclude that

a particular person is, has been, or soon will be engaged in criminal activity.

Ford, 158 S.W.3d at 492.

                       B. Application of the Law to the Facts

      Officer Visser had specific, articulable facts that provided reasonable

suspicion to believe McClenty had violated the law. Specifically, Officer Visser

could have reasonably suspected that McClenty had assaulted someone2 or had



      2
      A person commits an assault by intentionally, knowingly, or recklessly
causing bodily injury to another or by intentionally or knowingly threatening
another with imminent bodily injury. See Tex. Penal Code Ann. § 22.01 (West
Supp. 2014).


                                        4
committed disorderly conduct.3 Officer Visser received information that a fight

was imminent, and there was a lapse of two to three minutes between his receipt

of this information and his arrival at the bar. Upon arriving, Allen, whom Officer

Visser knew from previous encounters, identified McClenty as a culprit. Because

McClenty was leaving, Officer Visser faced the decision of letting him go while he

stayed to clarify with Allen what had occurred or of stopping McClenty to

investigate his involvement in the anticipated fight.    As the court of criminal

appeals observed

shrug his shoulders and allow . . . a criminal to escape. On the contrary, Terry

recognizes that it may be the essence of good police work to adopt an

                          State v. Kerwick, 393 S.W.3d 270, 276 (Tex. Crim. App.

2013) (quoting Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923

(1972)).

      The facts of this case are similar to those in Kerwick. In Kerwick, an officer

was dispatched to a bar in response to a reported fight. Id. at 272. On arriving,


      3
        Officer Visser did not mention disorderly conduct (although he might have
                                                       breach of the peace is not
a codified offense but is mentioned in the disorderly-conduct statute), but our
determination of whether he had reasonable suspicion looks to whether any
objective basis for the stop existed. See Ford, 158 S.W.3d at 492. A person
commits disorderly conduct by intentionally or knowingly using abusive, indecent,
profane, or vulgar language in a public place that tends to incite an immediate
breach of the peace; abusing or threatening a person in a public place in an
obviously offensive manner; making unreasonable noise in a public place; or
fighting with another in a public place. See Tex. Penal Code Ann. § 42.01(a)(1),
(4) (6) (West Supp. 2014).


                                         5
                                                                                  Id.

The officer                                                              approached

              car on foot, but the car began to move, and the officer ordered

Kerwick, who was the driver, to stop. Id. When the officer talked to Kerwick, the

officer smelled a strong odor of alcohol and observed that Kerwick had bloodshot

and watery eyes. Id. The officer arrested Kerwick for driving while intoxicated,

and Kerwick moved to suppress the evidence of intoxication on the grounds that

the officer lacked reasonable suspicion to stop her. Id. at 271. The court of

criminal appeals disagreed with Kerwick, holding that

      [i]n light of the damaged vehicle and the presence of several people
      outside of the bar after a report of several people fighting, and the

      unidentified person] provided a rational basis for [the Officer] to infer
      that the person whose vehicle was damaged was a potential crime
      victim and was identifying the person or persons responsible for the
      damage.

Id. at 276.

      Like the officer in Kerwick, Officer Visser was dispatched to quell a

disturbance at a bar, and upon arriving at the bar, someone directed him to follow

a person seemingly responsible for the disturbance. The facts of this case are

stronger than those in Kerwick, however, because Officer Visser knew the

person directing him; in Kerwick, the officer followed the directive of an

                         See id. at 272.     Here, Officer Visser knew Allen, had

worked with him in the past relating to disruptive bar patrons, received the 911


                                         6
call from Allen,4 and recognized Allen when he arrived.

informant was known to him personally and had provided him with information in

the past. This is a stronger case than obtains in the case of an anonymous

                  Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923

(1972); see Derichsweiler, 348 S.W.3d at 914 (emphasizing the higher reliability

of known citizen-informants).

      Because the totality of the circumstances provided specific, articulable

facts that, when combined with rational inferences from those facts, lead Officer

Visser to reasonably conclude McClenty had engaged in criminal activity, we

hold that the trial court did not abuse its discretion by denying his motion to

suppress. See Ford, 158 S.W.3d at 492; see also Kerwick, 393 S.W.3d at 276

(holding in similar but weaker circumstances that reasonable suspicion of

criminal activity existed).

                                V. CONCLUSION

                                    sole




                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

      4

to the cooper
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).


                                       7
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 26, 2015




                            8
