                                                                                     ACCEPTED
                                                                                 13-15-00178-CR
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                            6/11/2015 9:03:55 AM
                                                                          CECILE FOY GSANGER
                                                                                          CLERK



                      #13-15-00178-CR
                                                        FILED IN
                                                13th COURT OF APPEALS
                                            CORPUS CHRISTI/EDINBURG, TEXAS
      Thirteenth Court of Appeals, Corpus        6/11/2015
                                            Christi        9:03:55 AM
                                                    & Edinburg
                                                  CECILE FOY GSANGER
                                                         Clerk


                   THE STATE OF TEXAS,
                            Appellant

                               v.

                       ISMAEL SERDA,
                            Appellee



    ON STATE’S APPEAL FROM THE 28TH DISTRICT COURT
         OF NUECES COUNTY, CAUSE #13-CR-1027-A


                     STATE’S BRIEF
                                A. Cliff Gordon
                                Tex. Bar #00793838
                                Asst. Dist. Atty., 105th Dist.
                                Nueces County Courthouse
                                901 Leopard St., Rm. 206
                                Corpus Christi, TX 78401
                                361.888.0410 phone
                                361.888.0399 fax
                                cliff.gordon@nuecesco.com


ORAL ARGUMENT REQUESTED
              IDENTITY OF PARTIES AND COUNSEL

Appellant:   The State of Texas, District Attorney for the 105th Judicial
             District, represented by

             Appellate counsel:

                  A. Cliff Gordon, Asst. Dist. Atty.
                  Nueces County Courthouse
                  901 Leopard St., Rm. 206
                  Corpus Christi, TX 78401

             Trial and appellate counsel:

                   Mark Skurka, District Attorney
                   Chris Morrell, Asst. Dist. Atty.
                   Nueces County Courthouse
                   901 Leopard St., Rm. 206
                   Corpus Christi, TX 78401

Appellee:    Ismael Serda, represented by

             Appellate Counsel:

                   Travis W. Berry
                   P.O. Box 6333
                   Corpus Christi, TX 78401

             Trial Counsel:

                   Kenneth G. Botary
                   615 Leopard St. Ste. 836
                   Corpus Christi, TX 78401


                                   ii
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES ................................................................................... v
STATEMENT OF THE CASE ............................................................................. vii
ISSUE PRESENTED ............................................................................................ viii
     Whether the trial court erred by granting Serda’s motion to
       suppress evidence ................................................................................... viii
          A. Did the trial court properly conclude that reasonable
             suspicion was lacking in the face of the unanimous,
             uncontroverted evidence that Serda was speeding while
             being followed by Texas DPS Agent Eric Walters ...................... viii
          B. Did Serda’s explanation for his admitted speeding negate
             reasonable suspicion? ...................................................................... viii
          C. Was reasonable suspicion even necessary in light of the
             trial court’s finding that Serda did not realize he was being
             pursued by law enforcement when he brought his vehicle
             to a stop? ............................................................................................ viii
STATEMENT OF FACTS .......................................................................................1
     The traffic encounter and felony DWI charge ..............................................1
     Serda admitted in his motion to suppress that he was speeding ..............1
     Serda testified that he was speeding while being followed by
        Texas DPS Agent Walters, and Serda’s trial counsel argued
        Serda was speeding ....................................................................................1
     The trial court found no reasonable suspicion to stop Serda,
        granted his motion to suppress, and refused to make any
        findings on his admitted speeding ..........................................................2
SUMMARY OF THE ARGUMENT ......................................................................3
ARGUMENT ............................................................................................................5
                                                          iii
     The trial court erred by granting Defendant Serda’s motion to
        suppress........................................................................................................5
           1. The trial court found no reasonable suspicion by
              disregarding the collective knowledge of the cooperating
              officers ....................................................................................................5
                 1.a General Legal Standards ...............................................................5
                 1.b The legal standards applicable to reasonable suspicion
                     should have required the trial court to consider the
                     collective knowledge of the cooperating officers ......................8
                 1.b The undisputed evidence showed that the cooperating
                     officers had reason to suspect that Serda was speeding ..........8
           2. The trial court wrongly found no reasonable suspicion by
              weighing the relative innocence or guilt of Serda’s conduct .......10
                 2.a The legal standards should have required the trial court
                     to examine only the relative degree of suspicion arising
                     from Serda’s conduct through the prism of the
                     reasonable officer..........................................................................11
                 2.b The trial court, in effect, found a "paranoid speeding
                     drunk" defense to reasonable suspicion ...................................12
           3. The trial court’s findings show that the traffic stop was a
              consensual encounter requiring no reasonable suspicion ...........13
                 3.a The legal standards recognize that some police-citizen
                     encounters need not be supported by reasonable
                     suspicion or probable cause ........................................................13
                 3.b No detention occurs when a person pulls over without
                     believing he is yielding to a law enforcement officer .............15
PRAYER ..................................................................................................................15
CERTIFICATE OF COMPLIANCE ....................................................................16
CERTIFICATE OF SERVICE ...............................................................................16

                                                            iv
                                       INDEX OF AUTHORITIES


Cases
Allen v. State, 13-13-00188-CR, 2014 WL 4402135 (Tex. App.—Corpus
      Christi Sept. 4, 2014, no pet.) .....................................................................14
Berkemer v. McCarty, 468 U.S. 420 (1984) ...........................................................6
Bland v. Texas Dep’t of Pub. Safety, No. 14-12-01057-CV, 2013 WL
     3868447, (Tex. App.—Houston [14th Dist.] July 23, 2013, pet
     denied) ..........................................................................................................12
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) ...... 6, 9, 11, 12
Drago v. State, 553 S.W.2d 375 (Tex. Crim. App. 1977) .....................................7
Fonseca v. State, 881 S.W.2d 144 (Tex. App.—Corpus Christi 1994, no
     pet.) .................................................................................................................8
Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) ................................7
Hoag v. State, 728 S.W.2d 375 (Tex. Crim. App. 1987) ..................................8, 9
In re J.M., 995 S.W.2d 838 (Tex. App.—Austin 1999, no pet.) ........................11
Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011)................................8
McVickers v. State, 874 S.W.2d 682 (Tex. Crim. App. 1993) .........................7, 9
Power v. State, No. 13-05-693-CR, 2006 WL 2516525 (Tex. App.—
    Corpus Christi July 27, 2006, no pet.) ........................................................7
Praska v. State, 557 S.W.2d 83 (Tex. Crim. App. 1977) ............................. 11, 12
Scardino v. State, 294 S.W.3d 401 (Tex. App.—Corpus Christi 2009, no
     pet.) .................................................................................................................6
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ......................................6
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) .................................6
Texas Dep’t of Pub. Safety v. Celedon, No. 13-01-557-CV, 2002 WL
     34230967 (Tex. App.—Corpus Christi Aug. 29, 2002, no pet.) ...............8

                                                             v
United States v. Mendenhall, 446 U.S. 544 (1980) ............................................14
Valencia v. State, 820 S.W.2d 397 (Tex.App.—Houston [14th Dist.]
     1991, pet. ref’d) ..............................................................................................7
Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013) ............................ 14, 15
Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) ...................................11




                                                         vi
                        STATEMENT OF THE CASE

Nature of the Case         A grand jury indicted Defendant Ismael Serda
                           for felony Driving While Intoxicated. CR 5.

Course of Proceedings      On February 25, 2015, Serda filed his Motion to
                           Suppress Evidence. CR 30-32. On March 4, the
                           trial court heard Serda’s motion to suppress.
                           RR 2:1.



Trial Court’s Disposition On March 5, 2015, the trial court granted Serda’s
                          motion to suppress. CR 34.




                                    vii
                          ISSUE PRESENTED

Whether the trial court erred by granting Serda’s motion to suppress
evidence.

A.   Did the trial court properly conclude that reasonable suspicion was
     lacking in the face of the unanimous, uncontroverted evidence that
     Serda was speeding while being followed by Texas DPS Agent Eric
     Walters?

B.   Did Serda’s explanation for his admitted speeding negate reasonable
     suspicion?

C.   Was reasonable suspicion even necessary in light of the trial court’s
     finding that Serda did not realize he was being pursued by law
     enforcement when he brought his vehicle to a stop?




                                   viii
                        STATEMENT OF FACTS

     The traffic encounter and felony DWI charge.

     Corpus Christi Police Department Officer Alexandria Castro was on

patrol when she received a dispatch to assist DPS Narcotics Agent Eric

Walters, who was in an unmarked pickup truck following Defendant

Serda. Supp. CR 17 (Findings ##1, 2). The ensuing traffic encounter led to

Serda’s arrest and grand jury indictment for felony Driving While

Intoxicated. CR 5.

     Serda admitted in his motion to suppress that he was speeding.

     On February 25, 2015, Serda filed his Motion to Suppress Evidence.

CR 30-32. The motion, while admitting Serda reached speeds of “80-100

miles per hour,” claimed that he thought he needed to evade another

driver who appeared to be “in a state of road rage.” CR 30.

     Serda testified that he was speeding while being followed by Texas
     DPS Agent Walters, and Serda’s trial counsel argued Serda was
     speeding.

     On March 4, 2015, the trial court heard Serda’s motion to suppress.

RR 2:1. At the suppression hearing, Serda limited his challenge to the

existence of reasonable suspicion for the traffic stop that led to his DWI

                                     1
arrest. RR 2:52. Serda testified that he was speeding while DPS Agent

Walters pursued him—

     [Prosecutor] . . . Is it a fair statement to say that you were
           speeding to try to get away from the vehicle that way
           following you?
     [Serda]:    Entirely.
     Q:          Okay. So you are speeding?
     A:          To try to get away from the vehicle that was chasing me.

RR 2:45-46. Serda’s trial counsel agreed that “[Serda] was speeding to try

to avoid contact with whoever was chasing him because he was afraid.”

RR 2:49.

     Also at the hearing, Officer Castro testified that she was dispatched

to try intercept Walters and Serda’s vehicles because Serda was suspected

of speeding, being intoxicated, and driving recklessly. RR 2:6, 12, 35-36.

     The trial court found no reasonable suspicion to stop Serda,
     granted his motion to suppress, and refused to make any findings
     on his admitted speeding.

     On March 5, 2015, the trial court granted Serda’s motion to suppress.

CR 34. Upon the State’s timely request (CR 30), the trial judge entered

findings of fact and conclusions of law (Supp. CR 17). The trial court based

its conclusion of no reasonable suspicion on its finding that Officer Castro

                                      2
never witnessed Serda commit any traffic violations.       Supp. CR 17-18

(Findings ##8, 9; Conclusion #2).

     Officer Castro could not observe Serda’s driving before he pulled

over because Serda did so before Officer Castro could catch up to and get

behind his vehicle. Supp. CR 17 (Finding #7). Because Officer Castro had

not yet caught up to Serda, he did not realize that he was being followed

by any law enforcement authorities when he stopped his vehicle. Supp. CR

17 (Finding #3).

     The State requested additional findings concerning Serda’s testimony

that he was speeding and what Officer Castro heard from dispatch. Supp.

CR 19. The trial court refused on the basis that DPS Agent Walters did not

testify at the hearing. Supp. CR 25. This Court denied the State’s motion to

abate and remand for additional findings.

                    SUMMARY OF THE ARGUMENT

     Reasonable suspicion depends on the knowledge of the cooperating

officers—here—DPS Agent Walters, Officer Castro, and the police

dispatcher. It is undisputed that Serda was speeding while being followed


                                     3
by DPS Agent Walters in an unmarked vehicle and that CCPD Officer

Castro was dispatched to help him stop Serda.             This evidence is

undisputed because Serda admitted it in his motion to suppress and on the

stand during the suppression hearing, and Officer Castro testified that she

was dispatched to assist DPS Agent Walters due to, among other reasons,

speeding by Serda.     The trial court’s legal conclusion that reasonable

suspicion was lacking because Officer Castro did not witness Serda’s

speeding is wrong and should be reversed by this Court.

     Furthermore, Serda’s motion to suppress admitted that he was

speeding yet sought suppression because he mistakenly thought he was

being chased by an unknown driver instead of DPS Agent Walters.

However, Serda’s subjective thoughts are not part of the reasonable

suspicion analysis. That is because reasonable suspicion depends on the

degree of suspicion that attaches to the circumstances facing the officers—

not the relative guilt or innocence of those circumstances. Thus, regardless

why he was speeding, Serda’s admitted speeding over several miles while




                                     4
being followed by DPS Agent Walters provided reasonable suspicion to

stop him.

     Finally, the trial court made no findings concerning which law

enforcement officer supposedly stopped Serda. It could not because the

trial judge found that Serda brought his vehicle to a stop before he knew

that law enforcement was pursuing him. Thus, Serda did not stop due to

any show of authority. As a result, his initial encounter with police was

consensual and need not have been supported by reasonable suspicion.

Thus, had reasonable suspicion been lacking, the trial court’s granting of

Serda’s motion to suppress would still be wrong and deserving of reversal.

                               ARGUMENT

The trial court erred by granting Defendant Serda’s motion to suppress.

1.   The trial court found no reasonable suspicion by disregarding the
     collective knowledge of the cooperating officers.

     1.a    General Legal Standards

     In reviewing a trial court’s ruling on a motion to suppress, appellate

courts employ a bifurcated standard, giving almost total deference to a trial

court’s determination of historic facts and mixed questions of law and fact



                                      5
that rely upon the credibility of a witness, but applying a de novo standard

of review to pure questions of law and mixed questions that do not depend

on credibility determinations. E.g., State v. Kerwick, 393 S.W.3d 270, 273

(Tex. Crim. App. 2013). When a trial court makes explicit fact findings, the

appellate court determines whether the evidence (viewed in the light most

favorable to the trial court’s ruling) supports these fact findings. State v.

Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). “Whether the facts

known to the officer at the time of the detention amount to reasonable

suspicion is a mixed question of law that is reviewed de novo on appeal.”

Kerwick, 393 S.W.3d at 273.

     “A warrantless automobile stop is a Fourth Amendment seizure

analogous to a temporary detention, and it must be justified by reasonable

suspicion.”   Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—Corpus

Christi 2009, no pet.) (citing Berkemer v. McCarty, 468 U.S. 420, 439 (1984)).

A police officer has reasonable suspicion for a detention if he has specific,

articulable facts that, when combined with rational inferences from those

facts, would lead the officer to reasonably conclude that the person


                                      6
detained is, has been, or soon will be engaged in criminal activity.

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

standard is an objective one that disregards the subjective intent of the

arresting officer and looks, instead, to whether there was an objectively

justifiable basis for the detention. Ibid.

      It is generally accepted that law enforcement officers may lawfully

stop a motorist who commits a traffic violation. McVickers v. State, 874

S.W.2d 682, 664 (Tex. Crim. App. 1993), superseded by statute on other

grounds as stated in Granados v. State, 85 S.W.3d 217, 227-30 (Tex. Crim. App.

2002); see also Power v. State, No. 13-05-693-CR, 2006 WL 2516525, at *2 (Tex.

App.—Corpus Christi July 27, 2006, no pet.) (citing McVickers; not

designated for publication).       In stopping vehicles for an investigative

detention based on a traffic violation, the State need not prove that the

detainee actually committed a traffic violation. Drago v. State, 553 S.W.2d

375, 377 (Tex. Crim. App. 1977). Reasonable suspicion to believe that a

violation occurred or is occurring will suffice. Ibid.; Valencia v. State, 820

S.W.2d 397, 400 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d); see also


                                         7
Texas Dep’t of Pub. Safety v. Celedon, No. 13-01-557-CV, 2002 WL 34230967,

at *3 (Tex. App.—Corpus Christi Aug. 29, 2002, no pet.) (citing Valencia; not

designated for publication).

      1.b     The legal standards applicable to reasonable suspicion
              should have required the trial court to consider the collective
              knowledge of the cooperating officers.

      When officers cooperate, a court must consider their cumulative

information in determining whether reasonable suspicion exists at the time

of the stop. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987), cited

with approval in Fonseca v. State, 881 S.W.2d 144, 150 (Tex. App.—Corpus

Christi 1994, no pet.). A police dispatcher is considered a cooperating

officer.    Martinez v. State, 348 S.W.3d 919, 924 (Tex. Crim. App. 2011)

(construing Derichsweiler).

      1.b     The undisputed evidence showed that the cooperating
              officers had reason to suspect that Serda was speeding.

      The trial court based its ruling on the fact that Officer Castro, who

was dispatched to help DPS Agent Walters stop Serda, did not see Serda

commit any traffic violations. Supp. CR 17-18 (Findings ##7, 8; Conclusion




                                       8
#2). However, the undisputed evidence before the trial court1 showed that

Serda was speeding when being followed by DPS Agent Walters—

            Serda’s motion to suppress admitted he drove 80-100 miles per
             hour while being followed by DPS Agent Walters. CR 30.

            Serda testified at the suppression hearing that he was speeding
             over a distance of about 10 miles in an attempt to discern
             whether the vehicle driven by DPS Agent Walters was
             following him and to evade it. RR 2:40-41, 45-46.

            Serda’s counsel argued that he was speeding to evade Walters’s
             vehicle. RR 2:49.

            Officer Castro testified that she was dispatched to help DPS
             Agent Walters stop Castro for, among other reasons, speeding.
             RR 2:6.

The unanimous, uncontroverted evidence that Serda was speeding over

several miles while being followed by DPS Agent Walters—relayed to

dispatch and Officer Castro—provided reasonable suspicion to stop Serda.

McVickers, 874 S.W.2d at 664; Hoag, 728 S.W.2d at 380; Derichsweiler, 348

S.W.3d at 914-15.2


1
       Even before this Court, Serda continues to admit his speeding. Appellee’s
Objection to State’s Motion to Abate and Remand at 1 (“[DPS Narcotics Agent Walters]
chased appellee at very high speeds . . . .”).
2
       The State acknowledges, as it stated above concerning the general legal
standards, that a trial court’s findings of historical fact are entitled to almost total
                                           9
2.    The trial court wrongly found no reasonable suspicion by weighing
      the relative innocence or guilt of Serda’s conduct.

      Serda boldly challenged reasonable suspicion to stop him while

admitting that he was speeding. CR 30; RR 2:40-41, 45-46. He premised

that position on the theory that his speeding was “innocent” because he

thought he was being chased by an unknown driver. RR 2:51 (“My client

said he was trying to avoid contact with someone that was chasing him,

and I think he was driving at a reasonable speed . . . to do just that.”); but

see RR 2:41-42 (admitting he could think of no reason that someone would

chase him).




deference. Here, however, the trial court made no findings on Serda’s speeding and the
reason for Officer Castro’s dispatch (which included speeding). Thus, the trial court
presumably felt that Serda’s speeding in DPS Agent Walters’s presence was irrelevant
to its ruling, which is an erroneous legal conclusion under McVickers and Hoag.
        Further, had he trial court found that Serda was not speeding, it would have
exceeded the deference that it enjoys when finding historical facts. Not only was the
evidence uncontroverted and unanimous, Serda’s speeding was an integral part of his
story that he thought he had to break the law to determine whether he was being
followed and then to evade the pursuing driver. RR 2:40-41, 45-46. The trial court
believed the story (Supp. CR 17 [Findings ##3, 4], 25) and would have had no basis to
reject the essential subpart that Serda exceeded the speed limit when being followed by
DPS Agent Walters.
                                          10
     2.a   The legal standards should have required the trial court to
           examine only the relative degree of suspicion arising from
           Serda’s conduct through the prism of the reasonable officer.

     Reasonable suspicion depends on whether the articulable facts would

lead a reasonable officer to conclude that a person is, has been, or soon will

be engaged in criminal activity.     E.g., Derichsweiler, 348 S.W.3d at 914.

“[T]he relevant inquiry is not whether particular conduct is innocent or

criminal, but the degree of suspicion that attaches to particular non-

criminal acts.” Id. (quoting Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim.

App. 1997)). A defense to a traffic infraction does not negate reasonable

suspicion to detain arising from the infraction. Praska v. State, 557 S.W.2d

83, 85-86 (Tex. Crim. App. 1977) (“The fact that appellant may have used a

hand signal which Officer Alexander could not see from his vantage point

is certainly a defense to the charge that he committed the traffic offense,

but it just as certainly would not negate the officer’s justification for

stopping appellant’s vehicle in the first place.”); see also In re J.M., 995

S.W.2d 838, 843 n.7 (Tex. App.—Austin 1999, no pet.) (“The fact that an




                                     11
arrestee may offer exculpatory evidence to an officer that may later support

a defense to criminal activity does not eliminate probable cause to arrest.”).

      2.b   The trial court, in effect, found a “paranoid speeding drunk”
            defense to reasonable suspicion.

      Serda’s motion to suppress presented the issue of justifying his

admitted speeding based on his paranoia of being chased by an unknown

driver. But what Serda subjectively believed is not part of a reasonable

suspicion analysis because (1) a suspect’s thoughts are unknown to the

officer; and (2) whether a suspect has a defense to speeding does not negate

reasonable suspicion arising from speeding itself. Derichsweiler, 348 S.W.3d

at 914; Praska, 557 S.W.2d at 85-86; see also Bland v. Texas Dep’t of Pub. Safety,

No. 14-12-01057-CV, 2013 WL 3868447, at *4 (Tex. App.—Houston [14th

Dist.] July 23, 2013, pet denied) (“Even if a fact finder later might determine

that Bland’s speed was reasonable and prudent, that Bland was exceeding

the posted speed limit supports the officer’s reasonable suspicion that

Bland had committed a traffic violation.”; not designated for publication).

Thus, regardless whether the trial judge thought that a paranoid drunk




                                       12
might be justified in speeding away from an officer in an unmarked

vehicle, that speeding provides reasonable suspicion to stop him.

3.   The trial court’s findings show that the traffic stop was a
     consensual encounter requiring no reasonable suspicion.

     The trial court found—

     Before Defendant brought his vehicle to a stop, Defendant did
     not know that he was being followed by any police officers or
     agents or any authorities; he thought he was being chased by
     an unknown person.

Supp. CR 17 (Finding #3).

     3.a     The legal standards recognize that some police-citizen
             encounters need not be supported by reasonable suspicion or
             probable cause.

     There      are   three   types   of    legally-recognized   police   citizen

interactions—

     (1) consensual encounters that do not implicate the Fourth
     Amendment; (2) investigative detentions that are Fourth
     Amendment seizures of limited scope and duration that must
     be supported by a reasonable suspicion of criminal activity; and
     (3) arrests, the most intrusive of Fourth Amendment seizures,
     that are reasonable only if supported by probable cause. Police
     officers are as free as any other citizen to approach citizens to
     ask for information or cooperation. Such consensual encounters
     may be uncomfortable for a citizen, but they are not Fourth
     Amendment seizures.

                                       13
Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013) (footnotes

omitted); see also Allen v. State, 13-13-00188-CR, 2014 WL 4402135, at *2-4

(Tex. App.—Corpus Christi Sept. 4, 2014, no pet.) (discussing Wade; not

designated for publication).

      No bright-line rule governs when a consensual encounter becomes a

detention. Wade, at 667. Similar to probable cause, courts must take into

account “the totality of the circumstances of the interaction to decide

whether a reasonable person would have felt free to ignore the police

officer’s request or terminate the consensual encounter.” Ibid. This is the

Mendenhall test. Id. at 667-68 (citing United States v. Mendenhall, 446 U.S.

544, 554 (1980)). If ignoring the request or terminating the encounter is an

option, then no Fourth Amendment seizure has occurred. Wade, at 668.

But, if an officer through force or a show of authority succeeds in

restraining a citizen in his liberty, the encounter is no longer consensual; it

is a Fourth Amendment detention or arrest, subject to Fourth Amendment

scrutiny. Ibid. The question of whether the particular facts show that a




                                      14
consensual encounter has evolved into a detention is a legal issue that is

reviewed de novo. Ibid.

      3.b   No detention occurs when a person pulls over without
            believing he is yielding to a law enforcement officer.

      A reasonable driver who believes he is being followed by a fellow

citizen on the highway would not feel burdened by any decision as to

whether to heed a police officer’s request and would feel free to continue

on his way. Wade, 422 S.W.3d at 667-68. That Serda—enjoying “a pretty

high BAC” (RR 2:20-21) and stopping to “get into a fight with somebody”

(RR 2:42)—might have felt otherwise does not affect the analysis. Thus,

Serda’s initial encounter with police was consensual and need not have

been supported by reasonable suspicion. Wade, at 667.

                                  PRAYER

      For these reasons, the State requests that the Court reverse the trial

court order granting Serda’s motion to suppress, remand for further

proceedings, and grant the State all other proper relief.




                                      15
                                     Respectfully Submitted,

                                     /s/ A. Cliff Gordon
                                     A. Cliff Gordon
                                     Tex. Bar #00793838
                                     Asst. Dist. Atty., 105th Dist.
                                     Nueces County Courthouse
                                     901 Leopard St., Rm. 206
                                     Corpus Christi, TX 78401
                                     361.888.0410 phone
                                     361.888.0399 fax
                                     cliff.gordon@nuecesco.com



                   CERTIFICATE OF COMPLIANCE

     According to the word count of the computer program used to
prepare this document, it contains 4,000 words.



                      CERTIFICATE OF SERVICE

      On June 11, 2015, a true copy of the foregoing was served via eServe
on the following:

     Mr. Travis W. Berry
     P.O. Box 6333
     Corpus Christi, TX 78401
     via email: travisberrylaw@gmail.com
     Appellate Counsel for Appellee



                                  /s/ A. Cliff Gordon_______________
                                  A. Cliff Gordon

                                    16
