                            NUMBER 13-12-00234-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                    Appellant,

                                          v.

WILLIAM STRICKLAND,                                                     Appellee.


               On appeal from the County Court at Law No. 4
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
               Before Justices Garza, Benavides and Perkes
               Memorandum Opinion by Justice Benavides
      By one issue, the State appeals the trial court’s granting of appellee William

Strickland’s pre-trial motion to suppress. We affirm.

                                  I. BACKGROUND

      In the late afternoon of December 10, 2011, Corpus Christi Police Officer Josie
Ressler received a “be on the lookout” (“BOLO”) alert over her police radio for a maroon

vehicle.     At the suppression hearing, the State attempted to elicit more details from

Officer Ressler about the BOLO, but Strickland objected to the proposed testimony on

hearsay grounds. The trial court agreed, sustained Strickland’s objection, and did not

allow any more testimony about the BOLO.           Officer Ressler was dispatched later that

day to a Stripes convenience store in Corpus Christi, Texas where a maroon vehicle,

with its back tire completely blown out, was parked.        Officer Ressler approached the

vehicle and observed Strickland sitting in the driver’s seat.        Officer Ressler asked

Strickland if he had been drinking, and Strickland responded in the affirmative.      Officer

Ressler then “pulled [Strickland] out of the vehicle, patted him down for weapons, and . .

. secured him in [her] unit.” According to Officer Ressler, Strickland “didn’t talk much,”

but when he did, “his speech was slurred [and] his eyes . . . were red, bloodshot.” The

officer also stated that once outside the vehicle, Strickland “was very unsteady on his

feet.”

          Officer Ressler then called another officer to the scene.     The backup officer

arrived, administered field sobriety tests to Strickland, and eventually placed him under

arrest.    Strickland was later charged by information with driving while intoxicated, a

Class A misdemeanor. See TEX. PENAL CODE ANN. § 49.04 (West 2011).

          On February 2, 2012, Strickland filed a motion to suppress all evidence related to

his arrest.    Strickland complained that his arrest was illegal due to the absence of a

lawful warrant.     Strickland further argued that Officer Ressler lacked sufficient probable

cause to compensate for the lack of a warrant.             The trial court agreed, granted

Strickland’s motion, and issued its findings of fact, inter alia, that “no evidence [was]


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presented [which shows] that [Strickland] was driving or exercising any control over a

motor vehicle,” and conclusions of law, inter alia, that the State “failed to prove probable

cause for a lawful arrest.” This appeal followed.    See TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(5) (West Supp. 2011).

                           II.        MOTION TO SUPPRESS

       By one issue, with multiple sub-issues, the State contends that the trial court erred

by granting Strickland’s pre-trial motion to suppress.

       A. Standard of Review

       A trial court’s ruling on a motion to suppress evidence is reviewed on appeal

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

Crim. App. 2007). We must give “almost total deference to a trial court's determination

of the historical facts that the record supports especially when the trial court's fact

findings are based on an evaluation of credibility and demeanor.”        Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc).      Additionally, we should afford the

same amount of deference to a trial court's rulings on “application of law to fact

questions,” also known as “mixed questions of law and fact,” if the resolution of those

ultimate questions turns on an evaluation of credibility and demeanor.     Id. We review

de novo mixed questions of law and fact that do not depend on credibility and demeanor.

Amador, 221 S.W.3d at 673.

       B. Discussion

       1. Nature of Strickland’s Motion

       The State first argues that Strickland’s motion to suppress was really based upon

Strickland’s temporary detention and not an illegal arrest.   As a result, the State asserts


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that our review should focus on whether Officer Ressler had reasonable suspicion to act.

We disagree. The record expressly shows that Strickland was arrested and charged

with the offense of driving while intoxicated, see TEX. PENAL CODE ANN. § 49.04, on

December 10, 2011. Furthermore, the record of the suppression hearing reveals that

the parties understood that the basis of Strickland’s motion to suppress regarded his

arrest and not his detention by Officer Ressler:


      [DEFENSE COUNSEL]:                 Judge, it’s a motion to suppress the
                                         arrest.

      [TRIAL COURT]:                     All right.

      [DEFENSE COUNSEL]:                 There was no—there was no warrant
                                         issued by any magistrate to obtain this
                                         arrest; therefore, the burden is on the
                                         State to show that they had some legal
                                         reason to do it.

      [TRIAL COURT]:                     That’s right.

      [DEFENSE COUNSEL]:                 So we would ask the Court to indulge us
                                         in that issue.

      [TRIAL COURT]:                     The burden has shifted to you, son.

      [THE STATE]:                       State calls Officer Ressler to the stand,
                                         Your Honor.

      When a defendant seeks to suppress evidence on the basis of an illegal arrest,

the initial burden of proof is placed on the defendant to rebut the presumption of proper

conduct.   Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App. 2009) (citing McGee v.

State, 105 S.W.3d 609, 613 (Tex. Crim. App. 2003)). The defendant may satisfy this

burden by establishing that he was arrested without a warrant.    Young, 283 S.W.3d at

872. Once this is shown, the burden shifts to the State to either produce evidence of a


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warrant or prove the reasonableness of the arrest.       Id.

          Strickland represented to the trial court that no warrant was issued prior to his

arrest.    Moreover, Officer Ressler admitted that she did not obtain a warrant to arrest

Strickland.     Therefore, we conclude that the trial court did not err in finding that

Strickland’s motion to suppress was on the basis of an illegal arrest and that the burden

shifted to the State to prove the reasonableness of the arrest.      See Young, 283 S.W.3d

at 872.

          2. Dispatch Reports

          Next, the State argues that the trial court erred by not allowing the State to elicit

testimony from Officer Ressler about the content of the BOLO alert by sustaining

Strickland’s hearsay objection.        When a trial court’s ruling excluding testimony is

challenged on appeal, a party should properly preserve error by making a complete

record for review.     See Moosavi v. State, 711 S.W.2d 53, 54 (Tex. Crim. App. 1986) (en

banc).     One method is by making an informal bill as an offer of proof, if it includes a

concise statement of counsel’s belief of what the testimony would show.           See Love v.

State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993) (en banc).

          The record shows that the State never requested nor made an offer of proof.

The State argues, however, that the trial court did not allow the State to make an offer of

proof and that the State’s prosecutor was “under the direction of the trial court.” We

disagree. While it is true that the trial court did not allow the State’s prosecutor to

respond immediately to his hearsay ruling, nothing in the record shows that the State

requested that the trial court allow it to make an offer of proof about the dispatch report’s

contents.     As a result, the State failed to preserve any issue regarding the trial court’s


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evidentiary ruling.       See Mercado, 972 S.W.2d at 78.

        3. Invited Error

        Next, the State argues that through the doctrine of invited error, Strickland is

estopped from complaining that the State did not have reasonable suspicion to detain

him because due to defense counsel’s purported erroneous hearsay objection, the State

was unable to prove the legality of Strickland’s detention or arrest.                         The doctrine of

invited error applies where a party claiming error also seeks to base a claim for relief on

the very error the party created. If a party affirmatively seeks action by the trial court, that

party cannot later contend that the action was error. Druery v. State, 225 S.W.3d 491,

505–06 (Tex. Crim. App. 2007). Just as the law of entrapment estops the State from

making an offense of conduct that it induced, the law of invited error estops a party from

making an appellate error of an action it induced.                Prystash v. State, 3 S.W.3d 522, 532

(Tex. Crim. App. 1999).            Strickland does not bring forth appellate error in this case.

Therefore, the doctrine does not apply.1

        4. Probable Cause

        Finally, the State argues that its failure to prove that Strickland was driving the

vehicle cannot support the trial court’s granting of the motion to suppress. Again, we

disagree. The trial court found that “no evidence [was] presented [which shows] that

[Strickland] was driving or exercising any control over a motor vehicle.” Consequently,

the trial court concluded that the State “failed to prove probable cause for a lawful arrest.”

        Generally, a warrantless arrest is, pursuant to the Fourth Amendment,

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          Had the trial court ruled the same way on Strickland’s hearsay motion, but denied Strickland’s
motion to suppress, and in turn, Strickland chose to appeal the denial of the motion to suppress on grounds
that the State failed to prove the legality of his detention, arrest, or search, then the doctrine of invited error
would apply. See Vennus v. State, 282 S.W.3d 70, 72–73 (Tex. Crim. App. 2009).

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unreasonable per se unless the arrest fits into one of a few specifically defined and well

delineated exceptions. Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005) (en

banc) (citing Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). Thus, a police officer

may arrest an individual without a warrant only if probable cause exists with respect to

the individual in question and the arrest falls within one of the exceptions set out in the

code of criminal procedure. Torres, 182 S.W.3d at 901; see TEX. CODE CRIM. PROC. ANN.

art. 14.01–.04 (West 2005). One such exception to the general rule against warrantless

arrests is if the offense is committed in the presence of or within the view of a peace

officer. See TEX. CODE CRIM. PROC. ANN. art. 14.01(b). Under this exception, probable

cause exists when facts and circumstances within the officer's knowledge or about which

he or she has reasonably trustworthy information are sufficient to warrant a person of

reasonable caution to believe that an offense was or is being committed.       Torres, 182

S.W.3d at 901–02 (holding that both personal knowledge and trustworthy information are

not required to support probable cause). The totality of the circumstances test applies

in Texas for determining probable cause for a warrantless arrest.     Amores v. State, 816

S.W.2d 407, 413 (Tex. Crim. App. 1991) (en banc).            An unarticulated “hunch,” a

suspicion, or the good faith of the arresting officer is insufficient to support probable

cause to justify a warrantless arrest.   Torres, 182 S.W.3d at 902 (citing McDougald v.

State, 547 S.W.2d 40, 42 (Tex. Crim. App. 1977)).

       After our de novo review of the trial court’s determination of probable cause,

based on the totality of the circumstances, we conclude that the State did not carry its

burden to justify the warrantless arrest. The trial court found that Officer Ressler did not

conduct an investigation into Strickland’s intoxication and that no evidence was


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presented that Strickland was driving the car.2 A person commits the offense of driving

while intoxicated if the person is intoxicated while operating a motor vehicle in a public

place. TEX. PENAL CODE ANN. § 49.04(a). A defendant “operates” a vehicle when the

totality of the circumstances demonstrates that the defendant took action to affect the

functioning of his vehicle in a manner that would enable the vehicle’s use.             Kirsch v.

State, 357 S.W.3d 645, 650–51 (Tex. Crim. App. 2012).

       The State relies on the following evidence to advance its argument that sufficient

probable cause existed to justify Strickland’s warrantless arrest, namely:         (1) Strickland

was found in the driver’s seat of a maroon vehicle; (2) Strickland appeared intoxicated;

(3) the vehicle’s tire was blown out to the point that the rim was exposed; and (4) the

car’s engine and hood were warm to the touch.               This is insufficient because, even

looking at the totality of the circumstances, Officer Ressler lacked personal knowledge

about whether Strickland drove the vehicle.         See Torres, 182 S.W.3d at 902.

       Officer Ressler did not: (1) witness Strickland operate the vehicle; (2) question

Strickland about: whether he had operated the vehicle, whether anyone else had

operated the vehicle, the circumstances surrounding how the tire blew out, or whether he

consumed alcohol prior to arriving at the Stripes store; nor (3) investigate: how, or under

what circumstances, he arrived at the Stripes store, or how long the vehicle had been

immobile. These facts, if developed, may have given Officer Ressler enough personal

knowledge to establish probable cause that Strickland operated the vehicle.             However,


       2
          The State appeared to concede this point at the suppression hearing as illustrated by the
following exchange during the suppression hearing, after Officer Ressler testified:

       THE COURT:             Do you have any proof that he was driving?

       [STATE]:               Not today, Your Honor.

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based on the totality of the circumstances of the record before us, we conclude that the

State did not meet its burden to establish probable cause to justify Strickland’s

warrantless arrest.   See generally Torres, 182 S.W.3d at 903. The State’s sole issue

is overruled.

                                  III.   CONCLUSION

       We affirm the trial court’s granting of Strickland’s motion to suppress.




                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
25th day of July, 2013.




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