            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. PD-0590-13



                               THE STATE OF TEXAS

                                            v.

                     KIMBERLY CRYSTAL STORY, Appellee

           ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTH COURT OF APPEALS
                         GUADALUPE COUNTY

             M EYERS, J., delivered the opinion of the Court, in which J OHNSON,
K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J., filed a
dissenting opinion in which P RICE, J., joined. W OMACK, J., concurred.

                                     OPINION

      Appellee, Kimberly Story, was charged with forgery after police found forged checks

in her car. See T EX. P ENAL C ODE § 32.21 (2014). The trial court, however, granted her

motion to suppress the checks that were recovered from her vehicle, which was searched

during the arrest of Appellee and her boyfriend, James Kuykendall, for unrelated offenses.

The trial court determined that Appellee was arrested without probable cause and that the
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search of her vehicle and seizure of the evidence found there were the result of a trespass by

the officer. The court of appeals affirmed the ruling of the trial court, finding no abuse of

discretion in the court’s conclusion that Appellee’s arrest was unlawful and the evidence

inadmissible. State v. Story, No. 04-12-00235-CR, 2013 Tex. App. LEXIS 4769, at *10 (Tex.

App.–San Antonio April 17, 2013) (mem. op., not designated for publication). We agree with

the court of appeals that the trial court did not abuse its discretion and, therefore, affirm its

judgment.

                                      BACKGROUND

       Sheriff’s deputies responded to an anonymous report of a vehicle chasing and

possibly attempting to run over a man in a field. When the officers arrived, they found an

SUV parked in the field, but no one else was present. The deputies found James

Kuykendall walking alone on a nearby street and, after speaking with him, learned that he

was the man described in the report. Because Kuykendall’s story was vague, they

transported him back to the scene where the SUV was parked to try to get more

information from him. Appellee then appeared, and the couple told the officers that they

had both been in the car when they had an argument and Kuykendall got out. They

explained that Appellee then followed Kuykendall in the car, trying to convince him to

get back in. Both agreed that “nothing had happened, that it was just an argument.”

However, Appellee was arrested for misdemeanor assault.

       Prior to Appellee’s arrest, a deputy was walking by her vehicle and saw, in plain
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view, what he thought to be marijuana sitting on the floor by the passenger seat. Appellee

was then arrested for the assault and the officers searched her vehicle. The officers

collected the marijuana and arrested Kuykendall because he admitted that it was his.

During the search of the entire passenger compartment of Appellee’s vehicle, the deputies

also found several checks laid out in the back seat. All of the checks were from the Youth

Livestock Show and were either made out to Appellee or blank. Appellee’s brother, who

had come down to the scene at some point, confirmed for the officers that Appellee was

not supposed to have the checks. The deputies seized the checks, and Appellee was later

indicted for forgery.

       Appellee filed a motion to suppress the checks, which the trial court granted. The

trial court concluded that there was no probable cause to arrest Appellee for assault, that

the deputy had no reason to look into the vehicle, and that the deputy trespassed when he

went into the field and looked into the vehicle’s windows.1 Therefore, the court found that

       1
         The following findings of fact accompanied the trial court’s conclusions of law: (1) on
November 7, 2010, the Sheriff’s Department received an anonymous call that “there was a
vehicle in the field that was chasing a male as if they were trying to run him over;” (2) when
deputies arrived at the scene no one was present; (3) the possible male (Kuykendall) was located
elsewhere and brought back to the scene by a deputy; (4) the defendant (Story) was at the scene.
How or when she came to be there is unknown; (5) Kuykendall and defendant told the deputies
that nothing had happened and they were only having some kind of argument; (6) There was no
emergency, no one was in danger. The community did not need any care taking; (7) Kuykendall
and defendant were arguing because the deputy had brought Kuykendall back to the scene; (8) a
deputy went into the field where the Explorer was located and looked inside the vehicle; (9) the
deputy did not ask anyone for permission to enter the field and look into the vehicle; (10) the
deputy had no reason to look into the vehicle; (11) Defendant was in custody for assault family
violence and Kuykendall was 15-20 feet from the vehicle; (12) deputies entered the vehicle and
seized suspected marijuana; (13) Kuykendall was arrested and placed in a patrol car after he
admitted the marijuana was his; (14) after entering the vehicle to seize the marijuana, the deputy
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the seizure of the marijuana was illegal, as was the resulting seizure of the checks.

                                   COURT OF APPEALS

       The court of appeals held that “the evidence supports the conclusion that the

checks were obtained by exploiting Story’s unlawful arrest” and, therefore, their

suppression by the trial court was proper. Story, 2013 Tex. App. LEXIS 4769, at *10. It

concluded that the evidence supported the trial court’s conclusion that Appellee’s arrest

for misdemeanor assault was unlawful because the report from the anonymous caller was

not sufficient to establish probable cause and both parties explained they were only

having an argument. Id. at *9. Further, her arrest was not made under a circumstance that

authorizes a warrantless arrest, such as committing an offense in the presence of an

officer. Id. The State did not attempt to argue that Appellee’s arrest was lawful, but

instead claimed that the checks were seized subject to Kuykendall’s arrest, rather than

Appellee’s. The court of appeals found this “unconvincing.” Id. Determining that the trial

court’s suppression ruling was reasonably supported by the record, the court of appeals

affirmed the motion to suppress. Id. at *9-10.




searched the passenger area for any other contraband; (15) the deputy sees the checks in the
backseat area of the vehicle. The checks are not contraband; (16) “upon further inspection of the
checks” the deputy noticed the payee on the checks was defendant; (17) no photographs of the
back seat area were taken even though a camera was available. Photographs would have verified
what the deputy saw in the back seat; (18) the deputy seized the checks as evidence of a crime
without a search warrant issued by a judge only on his “suspicion that the checks were
fraudulently written out and stolen possibly;” (19) the defendant owned the vehicle; (20) only
after further investigation was probable cause established that defendant had committed the
offense of a forgery.
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                           ARGUMENTS OF THE PARTIES

       The State asserts that the court of appeals erred in holding that the seizure of the

checks following a warrantless search of Appellee’s SUV was tainted by her unlawful

arrest as fruit of the poisonous tree. It argues that the checks are admissible against

Appellee because they were lawfully seized pursuant to Kuykendall’s arrest. Further, the

State contends that the deputies’ entry onto the field was lawful under the “open fields”

doctrine and that the marijuana was in plain sight when the officer looked through the

car’s window. Therefore, Kuykendall was lawfully arrested after taking responsibility for

the drugs, and there was probable cause to seize the marijuana. The State argues that the

checks were in plain view in the back seat and that their incriminating character was

immediately apparent.

       Alternatively, the State contends that remand to the court of appeals would be

appropriate because the court of appeals did not consider the admissibility of the checks

under the theory that the search was valid pursuant to Kuykendall’s arrest. Appellee

counters that the testimony from one of the officers present that night made clear that the

search was conducted pursuant to Appellee’s arrest. Further, Appellee points out that the

court of appeals did directly address the State’s theory and found it unconvincing.

       Appellee also argues that, because it was not brought up on direct appeal, the State

cannot now raise a challenge to the trial court’s conclusion that the deputy trespassed

prior to the search of Appellee’s vehicle. Regardless, however, Appellee asserts that the
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State misunderstands the open-fields doctrine, because an intrusion on an open field by

law enforcement is considered trespass. See Oliver v. United States, 466 U.S. 170, 177

(1984). The trial court was correct in concluding that a trespass occurred, that the deputy

had no reason to look inside the vehicle, and that the search of the vehicle was illegal.

                                STANDARD OF REVIEW

       We will review a lower court’s ruling on the motion to suppress for an abuse of

discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The record will

be viewed in the light most favorable to the trial court’s determination, and the judgment

will be reversed only if it is arbitrary, unreasonable, or “outside the zone of reasonable

disagreement.” Id.; Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App.

1991). We will uphold the judgment if it is correct on some theory of law applicable to

the case, even if the trial judge made the judgment for a wrong reason. Romero v. State,

800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Further, a trial court’s ruling will not be

reversed based on a legal theory that the complaining party did not present to it. Hailey v.

State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002). Because the trial court is the sole

trier of fact, we will give almost total deference to the its determination of historical facts.

Dixon, 206 S.W.3d at 590. The trial court’s application of the law to those facts, however,

is reviewed de novo. Id.

                                         ANALYSIS

       In its first issue, the State argues that Appellee’s vehicle was searched pursuant to
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Kuykendall’s arrest and that a step-by-step application of the law to the facts shows that

the trial court erred in rejecting this claim. The first step in the State’s proposed analysis

is finding the deputies’ entry into the unoccupied field lawful under the open-field

doctrine. From this lawful entry, the State says, the officers developed probable cause to

arrest Kuykendall and, subsequently, the probable cause for the search of the rest of the

vehicle.

       First, as discussed, an appealing party may not present a theory for the first time on

appeal. Hailey, 87 S.W.3d at 122. Here, the State never presented any evidence

concerning the open-field doctrine or even raised the doctrine as part of its argument at

either the trial court or the court of appeals. Therefore, while the State’s theory might be

valid to justify the search, it needed to be raised in the trial court in order for us to

consider it. Despite this requirement, during the suppression hearing, the State never

asserted that the area where the vehicle was located was an “open field” in the legal

sense, nor did the State provide any evidence to support such a determination.

       The State also asserts that, contrary to the trial judge’s conclusion, there is no

evidence that the officers were trespassing because there is no evidence that the unknown

owner prohibited entry. There is no evidence on this issue, however, because the State did

not present any. Because the State had the burden of proving that the location was an

open field, the lack of evidence undermines the State’s argument rather than supports it.

This open-field claim should have been raised at the suppression hearing in order to avoid
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what, due to the lack of evidence, would only be speculation on our part due to the lack of

evidence. Because the trial court never had the opportunity to rule upon it and Appellee

never had a chance to rebut it, the State cannot now rely on its open field theory.

Therefore, the State’s theory that the checks were properly seized pursuant to

Kuykendall’s arrest is missing its essential first link of the deputies’ entry into the field

being lawful.

       Further, one of the officers who testified at the suppression hearing stated that the

search of the vehicle was conducted pursuant to Appellee’s arrest, and no officers

testified otherwise. Therefore, the court of appeals did not err in rejecting the State’s

theory that the search occurred pursuant to Kuykendall’s arrest.

       The record also supports the trial court’s conclusion that Appellee’s arrest was

unlawful for a lack of probable cause, which is required in order for an officer to make an

arrest without a warrant. An officer has probable cause when he has knowledge of facts

that would lead a reasonable person to believe that the suspect has committed a crime or

will soon do so. Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). Only when

the officer has probable cause to arrest the suspect may the officer conduct a warrantless

search of the passenger compartment of the suspect’s vehicle as a search incident to the

arrest. State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999). Any evidence that

is obtained directly pursuant to an unlawful arrest, however, cannot be used unless the

State can show that the means by which it was obtained are “sufficiently distinguishable”
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from the taint of the original unlawful search. Wong Sun v. United States, 371 U.S. 471,

487-88 (1963). Further, an anonymous call, standing alone, cannot serve to supply

probable cause for a warrantless search or arrest. Rojas v. State, 797 S.W.2d 41, 43 (Tex.

Crim. App. 1990). There must be additional facts or circumstances that support an

officer’s finding of probable cause. Amores v. State, 816 S.W.2d 407, 416 (Tex. Crim.

App. 1991).

       In this case, both of the involved parties indicated that they were having an

argument and that Appellee was simply driving beside Kuykendall in her car. Without

additional facts and circumstances indicating that Appellee had committed or was

committing an offense, the anonymous call could not serve as the basis for the probable

cause required for her arrest. Therefore, viewing the record in the light most favorable to

the trial court’s ruling, the conclusion that Appellee’s arrest was made without probable

cause is supported by the evidence. Because it was not error to find Appellee’s arrest

unlawful, it was similarly reasonable for the trial court to conclude that any evidence

found pursuant to that arrest was not admissible. We conclude, therefore, that the trial

court did not abuse its discretion in suppressing the checks and the court of appeals did

not err in affirming the trial court’s ruling.

       Alternatively, the State argues that remand is appropriate because the court of

appeals did not analyze the argument that the checks were lawfully seized pursuant to

Kuykendall’s arrest. The court of appeals, however, did directly deal with the issue,
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stating,“Instead of addressing the matter of Story’s unlawful arrest, the State argues the

deputies obtained the checks lawfully in a search incident to Kuykendall’s arrest. We find

this argument unconvincing. The evidence supports the conclusion that the checks were

obtained by exploiting Story’s unlawful arrest.” Story, 2013 Tex. App. LEXIS 4769, at

*10. The court of appeals explained, albeit briefly, that it is rejecting the State’s argument

because it is contrary to the evidence. Considering that the evidence presented at the

suppression hearing directly indicated that the search was made pursuant to Appellee’s

arrest, not Kuykendall’s, we find the court of appeals’ explanation to be satisfactory and

that remand of this case for the issue to be reconsidered is not the appropriate disposition.

                                       CONCLUSION

       The record, viewed in the light most favorable to the trial judge’s ruling, supports

the conclusion that Appellee’s arrest was unlawful, as was the subsequent search of her

vehicle incident to that arrest. The trial court did not abuse its discretion, and its ruling

was not arbitrary or unreasonable. Therefore, we affirm the court of appeals’s judgment

that upheld the trial court’s ruling to suppress the checks.




Delivered: October 15, 2014

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