                            NUMBER 13-09-00200-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                        Appellant,

                                           v.

EVA EUSEBIA CAMPOS,                                                          Appellee.


                 On appeal from the 156th District Court of
                            Bee County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

      The State appeals a trial court’s order granting a motion to suppress that was filed

by appellee, Eva Eusebia Campos. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(5)

(Vernon Supp. 2008) (providing that the State is entitled to appeal an order granting a

motion to suppress evidence). In a single issue, the State contends that the trial court

erred in granting Eva’s motion because the trial court “failed to recognize two valid

exceptions to the warrant requirement of the Fourth Amendment.” We affirm.
                                             I. BACKGROUND

        On January 22, 2009, Eva was indicted for possession of more than four, but less

than two hundred, grams of cocaine, which police discovered with the help of a canine

during a traffic stop. See TEX . HEALTH & SAFETY CODE ANN . § 481.115(d) (Vernon 2003).

Eva filed a written motion to suppress all evidence seized by law enforcement officers

during an arrest on November 14, 2008. Eva alleged that the evidence was seized from

her vehicle without a warrant, consent, or probable cause, and that use of the evidence

violated her federal and state constitutional rights. See generally, U.S. CONST . amend. IV,

V, XIV. The State did not respond in writing to Eva’s motion.

        Robert Meakins, who was a patrol officer and canine handler with the Bee County

Sheriff’s Department at the time of the traffic stop, was the sole witness at the suppression

hearing. On direct examination by the State, Meakins testified that he observed an

unrestrained child in the back of a van, and he stopped the van because driving with an

unrestrained child is a transportation code violation. See TEX . TRANSP . CODE ANN . §§

545.412, 545.413 (Vernon Supp. 2008).1                    Meakins approached the driver, Manuel

Campos, and asked for his driver’s license. Manuel told Meakins that he did not have a

driver’s license. Meakins then asked for consent to search the van. According to

Meakins’s testimony, Manuel agreed, but he told Meakins that Eva owned the van and she

would have to consent. Eva denied consent to search the van. Meakins immediately

retrieved his canine partner, who searched the perimeter of the van and alerted to the

possible presence of drugs. The K-9 then searched the inside of the van and found three

bundles of cocaine hidden inside an empty fountain drink cup. Meakins also searched

Manuel and Eva because “we had received information that [Eva is] known to carry [drugs]


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          W e note that neither Meakins nor the State supplied the trial court with a citation to the specific
section of the transportation code that was allegedly violated.
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on her person and in the clothing of the children or in the car seats.”

       On cross-examination by Eva’s defense counsel, Meakins testified that Eva was

“pretty well-known,” and that he knew the van belonged to Eva. Meakins was then asked:

       Defense Counsel:     So really what you were doing was following the vehicle
                            waiting for them to make some kind of traffic error,
                            wasn’t it?

       Meakins:             Yes.

       Defense Counsel:     It’s a pretext stop. Not saying there is anything wrong
                            with it.

       Meakins:             The stop was made on a traffic violation, yes.

       Defense Counsel:     I understand you waited until you got a traffic violation,
                            but you were following her in hopes there would be a
                            traffic violation.

       Meakins:             That’s correct.

Upon further cross examination, Meakins testified that, after Manuel could not produce a

driver’s license, he detained the van for possible possession of narcotics because Manuel

appeared nervous.

       After hearing Meakins’s testimony, Eva’s counsel argued that there was no probable

cause to further detain and “sniff search” the van.       The State did not present any

arguments to the trial court. The trial court took the matter under advisement and

requested briefing. Neither side provided the requested briefing. The trial court then

granted Eva’s motion to suppress and issued the following findings of fact:

               The Officer had sufficient reason to stop the van as he observed a
       traffic violation (unrestrained child passenger). The Officer received
       information about ownership of the van and the Defendant’s husband[‘]s lack
       of a driver’s license thereby authorizing ticketing Defendant for violating the
       Texas traffic code for allowing an un-licensed driver [to] operate her vehicle.

             The Officer did not have probable cause to search the van prior to the
       K-9 sweep. The Officer did not have the Defendant’s consent to search the
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       vehicle. The Officer did not possess sufficient articulable fact[s] to justify a
       continued detention of the Defendant’s vehicle after he concluded his traffic
       investigation. The Officer interrupted the traffic stop to perform a K-9 sweep.
       The Defendant was detained at the scene while the K-9 was brought out and
       swept the Defendant’s van. The Officer never indicated he intended to arrest
       the Defendant or her husband for the traffic offenses he noted.

              There was little or no delay between the time the Officer had
       concluded his traffic investigation and began the “real” reason for the stop,
       a drug search. Even a minimal detention or seizure which is not supported
       with sufficient facts to justify it is unreasonable.

This appeal ensued.

                                        II. DISCUSSION

       In its sole issue, the State contends that the trial court erred in granting Eva’s motion

because the trial court “failed to recognize two valid exceptions to the warrant requirement

of the Fourth Amendment.” When the defendant shows that a search or seizure occurred

without a warrant, as in this case, the burden shifts to the State to prove the

reasonableness of the warrantless search or seizure. Torres v. State, 182 S.W.3d 899,

902 (Tex. Crim. App. 2005).

       A review of the procedural history of this case reveals that the State fell woefully

short of articulating a ground for reasonableness of the continued detention, much less the

“two valid exceptions” to the search-warrant requirement that are urged on appeal. Not

only did the State fail to file a written response to Eva’s motion, but, at the suppression

hearing, it did not present any ground to deny Eva’s motion. Additionally, the State did not

file the supplemental briefing that the trial court requested. The court of criminal appeals

has held that ordinary notions of procedural default apply equally to the defendant and the

State, and that the basic appellate principle that points not argued at trial are deemed

waived applies to the State when it is the appellant. State v. Mercado, 972 S.W.2d 75,

77-78 (Tex. Crim. App.1998).

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       The State’s presentation of a “new” issue on appeal is procedurally similar to State

v. Huddleston, 164 S.W.3d 711, 713 (Tex. App.–Austin 2005, no pet.). In Huddleston, the

State appealed a trial court’s suppression of evidence of drunk driving on the basis that the

initial traffic stop was invalid. Id. After the trial court granted the defendant’s motion to

suppress, the State filed a motion for rehearing urging alternative theories to justify the

traffic stop, but no hearing on the State’s motion was held. Id. at 716. The trial court later

made a docket sheet entry stating that its previous ruling granting the motion to suppress

“stands.” Id. On appeal, the State reurged its “alternative theories.” Id. The Austin Court

of Appeals held that the alternative theories were waived under the doctrine of procedural

default. Id.

       Accordingly, under the rules of procedural default established by Mercado and

elaborated by Huddleston, we hold that the State waived its sole issue by failing to present

it—or anything—to the trial court. See Mercado, 972 S.W.2d at 77-78; Huddleston, 164

S.W.3d at 716.

                                      III. CONCLUSION

       The trial court’s suppression order is affirmed.

                                                  ________________________
                                                  ROGELIO VALDEZ
                                                  Chief Justice

Do Not Publish. TEX . R. APP. P. 47.2(b)
Memorandum Opinion delivered and filed
this the 27th day of August, 2009.




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