                                                                              PD-0681-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 10/2/2015 2:52:08 PM
October 2, 2015
                                                              Accepted 10/2/2015 3:08:28 PM
                                                                              ABEL ACOSTA
                              No. PD-0681-15                                          CLERK

                  TO THE COURT OF CRIMINAL APPEALS

                        OF THE STATE OF TEXAS


DAVID LEE CLEMENT, JR.,                                           Appellant

v.

THE STATE OF TEXAS,                                                Appellee



                          Appeal from Wise County


                                * * * * *

                    STATE’S BRIEF ON THE MERITS

                                * * * * *



                             LISA C. McMINN
                         State Prosecuting Attorney
                           Bar I.D. No. 13803300

                         STACEY M. GOLDSTEIN
                     Assistant State Prosecuting Attorney
                            Bar I.D. No. 24031632

                               P.O. Box 13046
                            Austin, Texas 78711
                         information@spa.texas.gov
                         512-463-1660 (Telephone)
                             512-463-5724 (Fax)
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

*   The parties to the trial court’s judgment are the State of Texas and Appellant,
    David Lee Clement, Jr.

*   The trial Judge was Hon. John H. Fostel.

*   Trial counsel for the State was District Attorney Gregory Lowery and Assistant
    District Attorneys Jay Lapham and Tim Cole, 101 N. Trinity, Suite 200,
    Decatur, Texas 76234.

*   Counsel for the State before the Court of Appeals was Assistant District
    Attorney Lindy Borchardt, 101 N. Trinity, Suite 200, Decatur, Texas 76234,
    and Stacey M. Goldstein, Assistant State Prosecuting Attorney, P.O. Box
    13046, Austin, Texas 78711.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
    Texas 78711.

*   Counsel for Appellant in the trial court and before the Court of Appeals was
    Jim Shaw, 916 W. Belknap, Fort Worth, Texas 76102.
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.      Does a suppression motion’s mere citation to the Fourth Amendment and
        probable cause, or a belated closing argument that anything after the
        “stop” be suppressed due to lack of probable cause for “arrest,” preserve
        an illegal arrest claim?

2.      Did the lower court err by basing its illegal arrest holding on the officer’s
        subjective reasoning rather than the objective facts he articulated that
        routinely support a DWI arrest?

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-16

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

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

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                         i
                                INDEX OF AUTHORITIES

Cases

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009). . . . . . . . . . . 15 n.24-25

Bosley v. State, 414 S.W.2d 468 (Tex. Crim. App. 1967). . . . . . . . . . . . . . . 11 n.11

Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006).. . . . . . . . . . . . 12 n.15

Clement v. State, 461 S.W.3d 274 (Tex. App.—Eastland 2015). . . . . . . . . . . . 7, 14

Clement v. State, No. 11-13-000055-CR, 2015 Tex. App. LEXIS 4801 (Tex.
App.—Eastland 2015) (on reh’g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10 n.10, 14

State v. Copeland, No. PD-1802-13, 2014 Tex. Crim. App. Unpub. LEXIS 929 (Tex.
Crim. App. Oct. 22, 2014) (not designated for publication).. . . . . . . . . . . . . . . 8 n.4

Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . 15 n.25

Devenpeck v. Alford, 543 U.S. 146 (2004). . . . . . . . . . . . . . . . . . . . . . . . 14 n.20-21

State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011).. . . . . . . . . 13 n.18, 14 n.19

State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013). . . . . . . . 12 n.15, 13 n.16

Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . 15 n.23

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . 16 n.27

Handy v. State, 189 S.W.3d 296 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . 8 n.4

Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005). . . . . . . . . . . . 13 n.17

Lovill v. State, 319 S.W.3d 687 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . 9 n.8

Maxwell v. State, 253 S.W.3d 309 (Tex. App.—Fort Worth 2008). . . . . . . . 16 n.26


                                                  ii
Navarette v. California, 134 S. Ct. 1683 (2014).. . . . . . . . . . . . . . . . . . . . . . 15 n.22

Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004). . . . . . . . . . . . 9 n.8, 12 n.13

Ouellette v. State, 353 S.W.3d 868 (Tex. Crim. App. 2011). . . . . . . . . . . . . 16 n.26

Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . 13 n.16

Postell v. State, 693 S.W.2d 462 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . 10

Renya v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005).. . . . . . . . . . . . . . . . . 9 n.7

Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009). . . . . . . . 2 n.2-3, 8 n.5

State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App. 2011). . . . . . 8, 8 n.4, 12 n.12

Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . 11 n.11

Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . 8 n.5

Taylor v. State, 863 S.W.2d 737 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . 12 n.14

Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . 13 n.18

Statute and Rule

TEX. CODE CRIM. PROC. art. 28.01 § 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. R. APP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 n.2, 10 n.9




                                                    iii
                               No. PD-0681-15

                 TO THE COURT OF CRIMINAL APPEALS

                         OF THE STATE OF TEXAS


DAVID LEE CLEMENT, JR.,                                                 Appellant

v.

THE STATE OF TEXAS,                                                     Appellee



                           Appeal from Wise County

                                  * * * * *

                    STATE’S BRIEF ON THE MERITS

                                  * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State Prosecuting Attorney respectfully presents her Brief on the Merits.

            STATEMENT REGARDING ORAL ARGUMENT

     The Court did not grant oral argument.




                                       1
                          STATEMENT OF THE CASE

      After Appellant’s motion to suppress was denied, he was convicted of felony

DWI and sentenced to four years’ imprisonment. The court of appeals reversed the

trial court’s denial of Appellant’s motion to suppress. It held that Appellant’s

challenge to the legality of his arrest was preserved because: (1) his motion cited the

Fourth Amendment and probable cause standard applicable to arrests, and (2) he

argued he was arrested without probable cause in his closing statement at the

suppression hearing. It then held that the arresting officer lacked probable cause

because, even though he testified about several facts courts consider decisive in

assessing and finding probable cause, he justified the arrest based solely on the smell

of alcohol on Appellant’s breath.

                              ISSUES PRESENTED

1.    Does a suppression motion’s mere citation to the Fourth Amendment and
      probable cause, or a belated closing argument that anything after the
      “stop” be suppressed due to lack of probable cause for “arrest,” preserve
      an illegal arrest claim?

2.    Did the lower court err by basing its illegal arrest holding on the officer’s
      subjective reasoning rather than the objective facts he articulated that
      routinely support a DWI arrest?




                                          2
                           STATEMENT OF FACTS

       Trooper Jeff Johnson received a dispatch report about the presence of a

“possible intoxicated” owner of a white Pontiac at a nearby Exxon station around

12:30 a.m. on a Sunday morning. 2 RR 12-13, 16. Soon after, Johnson stopped at

a gas station across the street from the Exxon and spotted the white Pontiac backing

up in the parking lot.1 2 RR 13. When Appellant pulled onto the road, Johnson

followed. 2 RR 14. Appellant accelerated quickly, and Johnson checked Appellant’s

speed on his radar unit. 2 RR 14. Appellant was traveling 62 m.p.h. in a 55 m.p.h.

zone. 2 RR 14. When Johnson activated his overhead lights, 2 RR 19, Appellant

pulled onto the right shoulder and almost “struck” the guardrail before stopping. 2

RR 23.

       Johnson told Appellant he stopped him for speeding. 2 RR 25. Johnson

smelled alcohol on Appellant’s breath, and he and Appellant discussed what

Appellant had to drink. 2 RR 25, 27. Appellant declined to participate in any field

sobriety tests. 2 RR 26. Johnson agreed with defense counsel’s statement that he

arrested Appellant for DWI “based on the odor of alcohol on his breath.” 2 RR 25-

26.



   1
    The Pontiac was the only other vehicle in the lot besides a local police unit.
2 RR 17.
                                         3
      The trial court denied Appellant’s motion to suppress without entering any

findings and conclusions. 2 RR 31.

                      SUMMARY OF THE ARGUMENT

      The court of appeals erred to hold that Appellant’s challenge to the legality of

his arrest was preserved for review. Appellant’s motion to suppress did not

specifically challenge his arrest. Contrary to the court of appeals’ determination,

mere mention of the Fourth Amendment and probable cause was insufficient to notify

the trial court and State that Appellant was claiming his arrest was unlawful. Further,

Appellant’s brief closing statement at the suppression hearing that he was arrested

without probable cause, coupled with his request that anything after the “stop” be

suppressed due to lack of probable cause for “arrest,” lacked specificity and was also

untimely.

      Next, even if preserved, the court of appeals erred to hold that Johnson’s sole

subjective justification controlled the outcome. The following objective facts, which

Johnson testified about, provided probable cause that Appellant had been driving

while intoxicated: (1) the citizen-informant’s tip that Appellant was intoxicated; (2)

it was 12:30 a.m. on a weekend; (3) Appellant’s driving in excess of the speed-limit

while Johnson was following; (4) Appellant’s act of nearly striking the guardrail

when pulling over; (5) Appellant’s admission to drinking alcohol; (6) the smell of


                                          4
alcohol on Appellant’s breath; and (6) Appellant’s refusal to participate in any field

sobriety tests.

                                   ARGUMENT

1.    Appellant’s illegal arrest complaint was not properly preserved due to
      non-specificity and untimeliness.

      A. Background

      Appellant filed a pretrial motion to suppress, arguing:

      the stop of Defendant was without a warrant or probable cause. There
      was no probable cause based upon acceptable scientific protocol.
      Further, the so-called-tipster was not shown to be credible. The officer
      did nothing to corroborate the tip from the unknown informant.

1 CR 18-19 (emphasis added).

      At the beginning of the suppression hearing, Appellant asked the State to

stipulate that he was stopped without a warrant. 2 RR 10. The State agreed and

called Johnson to testify. 2 RR 11-16. After establishing that Johnson stopped

Appellant for speeding, the State passed the witness. 2 RR 16. Appellant cross-

examined Johnson about the facts leading up to the stop and then questioned him

about the circumstances leading up to his arrest. 2 RR 16-28.

      In closing, the prosecutor asserted: “The radar unit showed his speed over the

posted speed limit, so based on that he had probable cause to stop.” 2 RR 29.

      Appellant responded, first addressing the stop:

                                          5
             Well, without calling into account the credibility of the officer’s
      ability to recollect, this stop was predicated on an uncorroborated
      informant’s tip[] that there was a possible intoxicated driver; no showing
      how that person knew they were intoxicated, who it was from, or
      whether they were credible. So it gets down to the officer trying to
      make a stop.

             When he sees the guy driving properly down the street, and he
      sees the vehicle being operated correctly, he sees the driver of the
      vehicle driving between a white line and the guardrail; a keen sense of
      driving, he says; but he pulls him over anyway for speeding; and that’s
      -- that’s where the stop is.

He then changed topics and argued:

            And he smells alcohol on his breath, so he doesn’t do any tests,
      doesn’t do anything. No evidence of intoxication except alcohol on his
      breath, and he’s arrested for DWI.
            It’s our position that anything after the stop should be suppressed,
      because there’s no probable cause for his arrest.
            The arrest led to an interview. The interview led to a mandatory
      blood draw, based upon the belief that it was his third DWI.

2 RR 30 (emphasis added).

      B. Analysis

       “The purpose of requiring a specific objection [under Texas Rule of Appellate

Procedure 33.1(a)(1)(A)] . . . is twofold: (1) to inform the trial judge of the basis of

the objection and give him the opportunity to rule on it; (2) to give opposing counsel




                                           6
the opportunity to respond to the complaint.”2 If an objection is deemed general or

imprecise, the context will be considered, and “[w]hen the correct ground for

exclusion was obvious to the judge and opposing counsel, no forfeiture results from

a general or imprecise objection.”3

        i. Non-Specificity

        On appeal, Appellant claimed that his arrest was not supported by probable

cause. Clement v. State, 461 S.W.3d 274, 280 (Tex. App.—Eastland 2015). On

original submission, the court of appeals addressed preservation sua sponte and held

that Appellant preserved his claim. Id. at 281 n.5. On rehearing, the court of appeals

rejected the State’s contention that Appellant’s arrest challenge was not preserved,

concluding that Appellant’s reference to the Fourth Amendment and probable cause

standard in his motion to suppress, combined with his closing argument, were

sufficient to preserve error. Clement v. State, No. 11-13-000055-CR, 2015 Tex. App.

LEXIS 4801, at *4-9 (Tex. App.—Eastland 2015) (on reh’g).

        Though the State carries the burden to justify a warrantless stop or arrest, the

defendant has the (pre-shifting) initial burden of raising a challenge to the validity of


   2
     Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009); see also
TEX. R. APP. P. 33.1(a)(1)(A) (requires a complaint to be timely and the reason to
be made with “sufficient specificity” to make the trial court aware of it).
   3
       Id. at 313.
                                            7
the stop or arrest.4 Appellant’s motion broadly referencing the Fourth Amendment

and probable cause was not sufficient to notify the trial court and State that he was

contesting his arrest.5 “[A] complaint that could, in isolation, be read to express more

than one legal argument will generally not preserve all potentially relevant arguments

for appeal.”6 Additionally, the remainder of the motion did not connect the previous

Fourth Amendment or probable cause references to the legality of Appellant’s arrest.



   4
     State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (“A
defendant who alleges a violation of the Fourth Amendment has the burden of
producing evidence that rebuts the presumption of proper police conduct.”); cf.
Handy v. State, 189 S.W.3d 296, 298-99 (Tex. Crim. App. 2006) (the State had no
duty to exhibit the warrant and supporting affidavit because Handy’s boilerplate
suppression motion failed to satisfy his initial burden to prove standing or that the
search was unreasonable on its face); see also State v. Copeland, No. PD-1802-13,
2014 Tex. Crim. App. Unpub. LEXIS 929, at *14-15 (Tex. Crim. App. Oct. 22,
2014) (not designated for publication) (declining to hold that the State’s consent
theory was procedurally defaulted because appellee never asserted lack of valid
consent in his motion to suppress).
   5
      See, e.g., Resendez, 306 S.W.3d at 313 (reference to Article 38.22 in motion
to suppress was “insufficient in itself to preserve for appeal the specific argument
that police failed to memorialize his Miranda warnings on tape as required by
Article 38.22, Section 3(a)(2).”); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim.
App. 2005) (motion to suppress stating, “any statements made by [the appellant]
were obtained in violation of his right to counsel and his right against
self-incrimination as guaranteed by U.S. Const. amends. V, VI, and XIV, and Tex.
Const. art. I, §§ 10 and 19,” was too global in nature to preserve the specific
argument that the police had violated his right to counsel under the Fifth and Sixth
Amendments by questioning him after he appeared before the magistrate and
requested counsel).
   6
       Resendez, 306 S.W.3d at 314.
                                           8
It explicitly challenged only the validity of the stop, scientific protocol and testing,

and tipster credibility. Notably, it incorrectly stated that the justification for the stop

is measured by probable cause. The explicit items mentioned and the confusion about

the applicable standard for an arrest cuts against the conclusion that the motion could

legitimately be understood as a challenge to an arrest.7

       Next, Appellant’s closing argument also failed to provide adequate notice that

he was contesting the legality of his arrest. The stated violation and relief requested

are incongruous: A lack of probable cause for the arrest does not support the

requested relief of suppression of anything after the stop.8 Therefore, as with his

motion, it is unreasonable to conclude that it was apparent that Appellant was

challenging and requesting a ruling on the legality of his arrest.




   7
     Cf. Renya v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005)
(challenge to a witness’ “credibility” could invoke the Rules of Evidence or the
Confrontation Clause; therefore, appellant’s failure to clearly assert that the
Confrontation Clause required admission failed to preserve his Sixth Amendment
claim).
   8
     Cf. Lovill v. State, 319 S.W.3d 687, 692 (Tex. Crim. App. 2009) (rarely urged
selective gender-based prosecution complaint not preserved due to lack of
specificity when the appellant had argued, in mitigation, that the revocation
proceedings were based on her pregnancy); Neal v. State, 150 S.W.3d 169, 175,
177 (Tex. Crim. App. 2004) (vindictive prosecution claim requiring a dismissal of
the charge was not preserved due to lack of specificity because appellant only
presented it as mitigation evidence at punishment).
                                            9
         ii. Untimely

         Even assuming that Appellant’s closing remarks should have provided notice

that the validity of Appellant’s arrest was now at issue, that challenge was untimely.9

Appellant was responsible for timely designating any suppression issues under Texas

Code of Criminal Procedure Article 28.01, Section 2.10 That provision states, in part:

         When a criminal case is set for such pre-trial hearing, any such
         preliminary matters not raised or filed seven days before the hearing will
         not thereafter be allowed to be raised or filed, except by permission of
         the court for good cause shown; provided that the defendant shall have
         sufficient notice of such hearing to allow him not less than 10 days in
         which to raise or file such preliminary matters.

TEX. CODE CRIM. PROC. art. 28.01 § 2; see Postell v. State, 693 S.W.2d 462, 465

(Tex. Crim. App. 1985) (seven-day limit is not mandatory unless ten days notice has

been given).


   9
        See TEX. R. APP. P. 33.1(a)(1)(2).
   10
       The court of appeals rejected the State’s reliance on Article 28.01, Section 2.
It determined that the State failed to cite any authority stating that Section 2’s
timeliness requirement trumps the timeliness requirements for preservation under
Texas Rule of Appellate Procedure 33.1. Clement, 2015 Tex. App. LEXIS 4801,
at *9. It also held that the State could not rely on this theory to justify the trial
court’s ruling because it failed to present this argument in the trial court. Id. at *9-
10.
          First, there is no procedural default, as the State was the winning party in
the trial court. Second, Article 28.01, Section 2 is not trumped by Rule 33.1. It is
a statute, addressing the time requirement for raising issues to be heard at a pretrial
hearing, and thus trumps Rule 33.1 according to the hierarchy of laws.


                                             10
        At the very least, Appellant was provided with well over ten days in which to

file his motion to suppress. He was granted a continuance on January 31, 2012. 1 CR

11, 34. Yet his motion was filed approximately eight months later on September 25,

2012, the date designed by the trial court as “jury trial.” 1 CR 35. This was also the

date that the trial court decided to hear and rule on Appellant’s pretrial motions. 1

CR 18-19, 35. And, as stated above, Appellant failed to challenge—with the requisite

specificity—the legality of his arrest in the motion, and there is no evidence that

Appellant made a “good cause” argument to justify his failure to raise the claim

earlier. Therefore, even if the record could be construed as showing that the trial

court implicitly ruled that there was “good cause” to excuse the seven-day time limit

with respect to the claims raised in his last-minute motion, there is no evidence that

the trial court also granted him permission to challenge his arrest.

        Next, even assuming that Article 28.01, Section 2’s seven-day limit is regarded

as inapplicable or waived,11 Appellant’s suppression motion and stated agenda at the

hearing concerned only the validity of the stop. The State should be entitled to rely

on Appellant’s strategically selected litigation notice when defending against his


   11
     See Bosley v. State, 414 S.W.2d 468, 470 (Tex. Crim. App. 1967) (Article
28.01 gives the trial court discretion to decline to hear an untimely motion to
suppress filed the day of trial); see also Sells v. State, 121 S.W.3d 748, 763 (Tex.
Crim. App. 2003) (suggesting that the trial court can waive seven-day filing
requirement).
                                           11
motion in court.12 The State prepared for the hearing accordingly and tailored its

questioning to the contested issue.13 The arrest issue was outside the stated scope of

the purpose of the suppression hearing.14 Therefore, Appellant’s belated complaint

about his arrest, thrown in (disjointedly) at the end of his closing argument, was made

too late for purposes of requesting suppression at the hearing.15 Unless challenged

by a specific objection or motion, the State need not present evidence to satisfy its

ultimate burden with respect to any viable, potential issue that could be raised by the


   12
       Cf. Robinson, 334 S.W.3d at 779 (“Since appellee never produced evidence
of a statutory violation, the State never had the burden to prove that the blood
sample was drawn by a qualified person.”).
   13
      See, e.g., Neal, 150 S.W.3d at 179 (observing that that State was deprived of
the opportunity to introduce evidence controverting appellant’s claim because of
appellant’s failure to properly raise it pretrial).
   14
      Compare with Taylor v. State, 863 S.W.2d 737, 738 (Tex. Crim. App. 1993)
(memorandum that included additional legal theories concerning the legality of the
appellant’s arrest, which was filed after suppression hearing, preserved error when
the legality of the arrest was first challenged in a timely suppression motion and at
the suppression hearing).
   15
      Cf. State v. Esparza, 413 S.W.3d 81, 87 n.23 (Tex. Crim. App. 2013) (“The
State was never alerted that it must satisfy a burden at the pretrial hearing to
produce evidence sufficient to establish scientific reliability. To affirm the trial
court’s ruling that granted the appellee’s motion to suppress on the basis of a
failure by the State to produce evidence under these circumstances is
unacceptable.”); Buchanan v. State, 207 S.W.3d 772, 777 (Tex. Crim. App. 2006)
(“Nothing about the hearing up to [the closing argument] would reasonably have
alerted the trial court or opposing counsel that the appellant meant to challenge the
legality of his arrest under Chapter 14, as opposed to the constitutional provisions
cited in his written motion to suppress.”).
                                          12
defendant.16 If no rule preventing unfair surprise existed, then the State would be

saddled with the burden of securing all the necessary witnesses to address each and

every possible legal issue a defendant could decide to raise at a scheduled hearing.17

This would significantly burden Texas’ already limited judicial resources.

2.        Alternatively, the objective facts establish probable cause for the arrest.

          On rehearing, the court of appeals rejected the State’s arguments that it erred

to apply the objective standard18 and defer to any factfindings that support the trial




     16
       See Pham v. State, 175 S.W.3d 767, 773-74 (Tex. Crim. App. 2005) (“We
have long held that the burden of persuasion is properly and permanently placed
upon the shoulders of the moving party. When a criminal defendant claims the
right to protection under an exclusionary rule of evidence, it is his task to prove
his case.”) (internal quotes deleted); cf. Esparza, 413 S.W.3d at 86 (while the
proponent of scientific evidence carries the burden of proving reliability at a
pretrial hearing or at trial, the proponent is not obligated to satisfy the burden until
the opponent objects on the basis of reliability).
     17
      Cf. Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex. Crim. App. 2005)
(State’s failure to provide TEX. R. EVID. 404(b) notice indicates that it does not
think an extraneous offense is relevant, thereby relieving the defendant of having
to prepare to defend against it).
     18
      Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007) (“The subjective
intent or motivations of law enforcement officials is not taken into account when
considering the totality of the circumstances.”); see also State v. Elias, 339 S.W.3d
667, 675 (Tex. Crim. App. 2011) (the appropriate question is “whether the
objective facts would have justified an officer in [the officer’s] shoes in detaining
the appellee . . . .).
                                             13
court’s ruling.19 It explained that it had recognized (on original submission) that the

record developed at the hearing was very limited as to Johnson’s basis for arresting

Appellant. Clement, 2015 Tex. App. LEXIS 4801, at *12. As a result, it faced the

“dilemma [of] conducting an analysis of the totality of the circumstances facing the

arresting officer on a very limited record rather than basing [its] analysis on Trooper

Johnson’s subjective beliefs.” Id.

        By saying it would be required to “speculate” as to other factors (besides

alcohol on breath) that Johnson relied upon, the court of appeals disregarded

controlling authority by applying an improper subjective standard. See Clement, 461

S.W.3d at 282. The Supreme Court has declared, “[A]n arresting officer’s state of

mind (except for the facts that he knows) is irrelevant to the existence of probable

cause.”20 Otherwise, “An arrest made by a knowledgeable, veteran officer would be

valid, whereas an arrest made by a rookie in precisely the same circumstances would

not.”21

        Here, Johnson testified to all the dispositive facts the court erroneously

declined to “speculate” about:


   19
        Elias, 339 S.W.3d at 673-74.
   20
        Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
   21
        Id.
                                          14
•        An anonymous citizen-informant called authorities and reported that Appellant
         was drunk and would soon be getting on the road in a white Pontiac, and
         Trooper Johnson immediately corroborated some of the information when he
         found Appellant at the reported location in a white Pontiac.22 2 RR 12-14, 16-
         18.

•        The events occurred on a Saturday at 12:30 a.m.23 2 RR 12-13.

•        Appellant was speeding, and it can rationally be inferred that his impaired
         mental faculties led him to disregard the speed limit with a police officer
         behind him.24 2 RR 14, 18.

•        Appellant almost hit the guard-rail when he pulled onto the road’s shoulder,
         and it can rationally be inferred that it was due to intoxication.25 2 RR 23-24.

    22
      See Navarette v. California, 134 S. Ct. 1683, 1689-90 (2014) (a citizen-
informant’s report may have sufficient indicia of reliability depending on details
indicating eyewitness knowledge, whether the location of the subject was
confirmed, the time-line shows that the report was contemporaneous with the
reported behavior, and the report was made on a 911 system that a reasonable
officer could assume would deter false reporting).
    23
     See Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (time of
day considered as a factor in determining reasonable suspicion of DWI).
    24
     See Amador v. State, 275 S.W.3d 872, 879 (Tex. Crim. App. 2009) (citing
speeding as a factor supporting probable cause of DWI).
    25
      See id. (citing fumbling and slowness of movement as factors supporting
probable cause of DWI and concluding that the inference that impairment was the
root cause was reasonable); Curtis v. State, 238 S.W.3d 376, 381 (Tex. Crim. App.
2007) (citing weaving in and out of a lane as a factor supporting reasonable
suspicion of DWI).
       Johnson agreed with Appellant’s attorney’s statement that Appellant
exhibited “pretty keen driving” by avoiding hitting the guardrail because there was
barely enough room for a car between the white line and guardrail. 2 RR 23-24.
While the trial court could have found “keen driving,” it reasonably inferred
                                                                       (continued...)
                                            15
•        Appellant told Johnson he had been drinking. 2 RR 28.

•        Appellant’s breath smelled of alcohol. 2 RR 26.

•        Appellant refused to take part in any field sobriety tests.26 2 RR 26.

         The combined force of the circumstances above and reasonable inferences

therefrom support the trial court’s denial of Appellant’s motion to suppress. The

court of appeals erred by failing to defer to the lower court’s implied factfindings that

are supported by the record.27 If this Court finds that Appellant properly preserved

his illegal arrest claim, it should reverse the court of appeals’ decision and hold that

Appellant’s arrest was lawful.




    25
     (...continued)
intoxication.
    26
      See Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort Worth 2008)
(citing refusal to perform field sobriety tests as a factor supporting probable cause
of DWI); cf. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011)
(refusal to take blood test deemed a piece of circumstantial evidence of
intoxication for evidentiary sufficiency purposes).
    27
      See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (“as a
general rule, the appellate courts, including this Court, should afford 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.”).


                                            16
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant review and reverse the decision of the court of appeals.



                                       Respectfully submitted,

                                       LISA C. McMINN
                                       State Prosecuting Attorney
                                       Bar I.D. No.13803300

                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney
                                       Bar I.D. No. 24031632

                                       P.O. Box 13046
                                       Austin, Texas 78711
                                       information@spa.texas.gov
                                       512-463-1660 (Telephone)
                                       512-463-5724 (Fax)




                                         17
                     CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

this document contains 3,744 words, exclusive of the items excepted by TEX. R. APP.

P. 9.4(i)(1).




                                      /s/ STACEY M. GOLDSTEIN
                                      Assistant State Prosecuting Attorney




                                        18
                         CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Brief has been served on

October 2, 2015, via email or certified electronic service provider to:

Hon. Lindy Borchardt
Wise County Courthouse
101 North Trinity Street
Suite 200
Decatur, Texas 76234
lindy@co.wise.tx.us

Hon. Jim Shaw
916 West Belknap
Fort Worth, Texas 76102
jimshaw@jimshawlaw.com



                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




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