                                                                            PD-0681-15
                       PD-0681-15                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                          Transmitted 6/3/2015 3:51:59 PM
                                                           Accepted 6/4/2015 11:24:32 AM
                                                                           ABEL ACOSTA
                          No. 11-13-00055-CR                                       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 PETITION FOR DISCRETIONARY REVIEW


                              * * * * *
 June 4, 2015

                           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

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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?

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-15

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX A (Court of Appeals Opinion on Original Submission)

APPENDIX B (Court of Appeals Opinion on Rehearing)




                                                         i
                                        INDEX OF AUTHORITIES

Cases

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . 14 n.18

Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . 9 n.6

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 2671 (Tex.
App.—Eastland 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 4801 (Tex.
App.—Eastland 2015, on reh’g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . 14 n.19

Devenpeck v. Alford, 543 U.S. 146 (2004). . . . . . . . . . . . . . . . . . . . . . . . 13 n.14, 15

Douds v. State, PD-0857-14 (submitted March 18, 2015).. . . . . . . . . . . . . . . 12 n.11

State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 12 n.12, 13

State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013).. . . . . . . . . . . 9 n.6, 10 n.7

Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . 14 n. 17

Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 11 n.9

Handy v. State, 189 S.W.3d 296 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . 7 n.3

Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005). . . . . . . . . . . . . 10 n.8

Leal v. State, PD-1638-14 (Tex. Crim. App. 2015) (not designated for publication)
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 n.11

Maxwell v. State, 253 S.W.3d 309 (Tex. App.—Fort Worth 2008). . . . . . . . 15 n.20

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . 11 n.9

                                                               ii
Navarette v. California, 134 S. Ct. 1683 (2014). . . . . . . . . . . . . . . . . . . . . . . 14 n.16

Ouellette v. State, 353 S.W.3d 868 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 15 n.20

Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . 10 n.7

State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App. 2011).. . . . . . . . . . 7 n.3, 8 n.5

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). . . . . . . . . . . . . . 12 n.12

Statutes and Rules

T EX. C ODE C RIM. P ROC. art. 28.01 § 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

T EX. R. A PP. P. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 n.10

T EX. R. A PP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.2, 8 n.4




                                                          iii
                              No. 11-13-00055-CR

                   TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS



DAVID LEE CLEMENT, JR.,                                          Appellant

v.

THE STATE OF TEXAS,                                               Appellee


                                   * * * * *

           STATE’S PETITION FOR DISCRETIONARY REVIEW

                                   * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State Prosecuting Attorney respectfully urges this Court to grant

discretionary review.

              STATEMENT REGARDING ORAL ARGUMENT

      The State does not request 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 suppression ruling. 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 that courts consider decisive in assessing probable cause, he

justified the arrest based solely on the smell of alcohol on Appellant’s breath.

                  STATEMENT OF PROCEDURAL HISTORY

      In a published decision, the Eastland Court of Appeals reversed the trial court’s

denial of Appellant’s motion to suppress. Clement v. State, __ S.W.3d__, 11-13-

00055-CR, 2015 Tex. App. LEXIS 2671 (Tex. App.—Eastland 2015).                  The State

filed a motion for rehearing, which the court of appeals denied in a published opinion.

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 4801 (Tex.

App.—Eastland 2015, on reh’g).




                                            2
                                         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. 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.

          The trial court denied Appellant’s motion to suppress. 2 RR 31.




      1
    The Pontiac was the only other vehicle in the lot besides a local police unit. 2
RR 17.

                                            3
                           GROUNDS FOR REVIEW

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?

                                   ARGUMENT

                    Court of Appeals on Original Submission

      Appellant alleged, among other things, that his arrest was not supported by

probable cause.    Clement, 2015 Tex. App. LEXIS 2671, at *9.             On original

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

Appellant preserved his claim. Id. at *13 n.5. The court then held that the trial court

erred to deny Appellant’s suppression motion. Id. at *15. The court observed that,

while Johnson stated that the odor of alcohol on Appellant’s was a “factor” in his

decision to arrest Appellant, “the record is silent as to what other factors Trooper

Johnson may have relied upon . . . .”         Id. at *15-16 (emphasis in original).

Continuing, the court stated:

      To hold otherwise would require us to speculate on what factors, if any
      Trooper Johnson may have relied upon in arresting Appellant, including
      his refusal to perform field sobriety tests, Appellant’s response to the
      question of what he had been drinking, Appellant’s speeding violation,
      and Appellant’s act of almost striking the guardrail.


                                          4
Id. at *16.

                           Court of Appeals Rehearing

      On rehearing, the State claimed the court of appeals erred to hold that

Appellant’s arrest challenge was preserved because his objection was neither specific

nor timely.   State’s Motion for Rehearing, at 2-6. The State also argued, in the

alternative, that the court improperly applied a subjective standard of review and

consequently erred to hold Appellant’s arrest was not supported by probable cause.

State’s Motion for Rehearing, at 6-8. The court of appeals disagreed and denied the

State’s motion. See generally, Clement, 2015 Tex. App. LEXIS 4801, at *1-13.

1.    Appellant’s illegal arrest complaint was not properly preserved.

      Appellant filed a pretrial motion to suppress. 1 CR 18-19. In it, he argued:

      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 19.

      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-




                                         5
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:

            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).




                                      6
           Proper preservation is lacking for two reasons: non-specificity and

untimeliness.2 On rehearing, the court of appeals held 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,

2015 Tex. App. LEXIS 4801, at *4-9.

           Given the record here, the court’s determination essentially renders current

preservation standards meaningless.

           A.   Specificity

           While 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

the stop or arrest.3 Appellant’s motion broadly referencing the Fourth Amendment

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

contesting his arrest. This is especially true given the remainder of the motion. It

explicitly challenged the validity of the stop, scientific protocol and testing, and


   2
      See T EX. R. A PP. P. 33.1(a)(1)(A) (requiring a complaint to be timely and the
reason to be made with “sufficient specificity” to make the trial court aware of it).
       3
         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).

                                              7
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 can

legitimately be understood as a challenge to an arrest.

        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. Therefore, as with his

motion, it is unreasonable to conclude that Appellant was challenging and requesting

a ruling on the legality of his arrest.

        B.    Timeliness

        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.4

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 motion in court.5 The State



   4
       See T EX. R. A PP. P. 33.1(a)(1)(2).
   5
      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.”).

                                              8
prepared for the hearing accordingly and limited its questioning to the contested

issue. The arrest issue was outside the scope of the purpose of the suppression

hearing.    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.6 The State should not have to litigate the

merits of an issue on appeal when the defendant did not timely raise the complained-

of error in the trial court.

         Additionally, Appellant was responsible for timely designating any

suppression issue(s) under Texas Code of Criminal Procedure Article 28.01, Section

2. That provision states that pretrial hearing matters not raised or filed seven days

before the hearing cannot thereafter be raised or filed, except with the court’s

permission and good cause shown. T EX. C ODE C RIM. P ROC. art. 28.01 § 2. Here,



  6
     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.”).

                                             9
there is no evidence that Appellant made a “good cause” argument to justify his

failure to raise the claim earlier. 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 defendant.7 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.8 This would have a significant negative

impact on judicial resources.

       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


   7
       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). Nor should suppression hearings be treated as a mechanism
for discovery.
  8
     Cf. Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex. Crim. App. 2005) (State’s
failure to provide T EX. R. E VID. 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).

                                           10
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.9 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

        This Court should grant review to refine pre-trial suppression issue preservation

requirements. Though a large portion of the Court’s docket includes pretrial

suppression claims, the Court has not fully fleshed out the timeliness requirements

as it relates to the moving party’s burden, judicial economy, orderly hearings,




    9
       Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002) (“‘Ordinary
notions of procedural default’ do not require a prevailing party to list or verbalize ‘in
the trial court every possible basis for upholding’ its decision.”) (quoting State v.
Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998)).
   10
       See T EX. R. A PP. P. 2 (a court must not construe the authority of an appellate
court to suspend the Rules of Appellate Procedure “to suspend any provision in the
Code of Criminal Procedure”).

                                            11
confusion of the issues, and fishing expeditions. Further, recent action by the Court

indicates that it has become interested in settling firmer guidelines.11

2.        Alternatively, the court of appeals violated the applicable standards of
          review when deciding the legality of Appellant’s arrest.

          Addressing the merits on rehearing, the State argued that the court of appeals

violated two basic standards of review in reversing the trial court’s decision: (1) that

the officer’s subjective belief about why the arrest was justified is irrelevant as long

as the objective facts provide a basis for finding probable cause;12 and (2) that an

appellate court is required to defer to a trial court’s implicit factfindings, when

supported by the record, in a light most favorable to the court’s ruling.13 State’s

Motion for Rehearing, at 6-8.



     11
       This Court remanded Leal v. State, PD-1638-14 (Tex. Crim. App. 2015) (not
designated for publication), in March for the court of appeals to determine whether
Appellant’s motion for new trial, which was considered at a live hearing, preserved
a challenge to the legality of a warrantless blood draw. And in September of 2014,
the Court granted review in Douds v. State, PD-0857-14 (submitted March 18, 2015),
to consider, in part, whether Appellant’s challenge to a warrantless blood draw was
preserved when he filed a boilerplate motion to suppress.
     12
          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
          Elias, 339 S.W.3d at 673-74.

                                            12
       The court of appeals rejected the State’s characterization of its analysis. 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.

       The court of appeals appears to have missed the distinct nuances between the

objective versus subjective standards. By saying it would be required to “speculate”

as to other factors (besides alcohol on breath) that Johnson relied upon, the court of

appeals necessarily applied an improper subjective standard. See 2015 Tex. App.

LEXIS 2671, at *15-16. “[A]n arresting officer’s state of mind (except for the facts

that he knows) is irrelevant to the existence of probable cause.”14 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.”15 Here, Johnson

testified to all the dispositive facts the court erroneously declined to “speculate”

about:



  14
       Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
  15
       Id.

                                          13
•             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.16 2 RR 12-14, 16-
              18.

•             The events occurred on a Saturday at 12:30 a.m.17 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.18 2 RR 14, 18.

•             Appellant almost hit the guard-rail when he pulled onto the road’s shoulder.19
              2 RR 23-24.


         16
         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).
    17
      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).
     18
       See Amador v. State, 275 S.W.3d 872, 879 (Tex. Crim. App. 2009) (citing
speeding as a factor supporting probable cause of DWI).
         19
        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 intoxication.

                                                 14
•        Appellant told Trooper 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.20 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’ approach to the objective standard in this case conflicts with the

principles underlying that standard and has the resulting effect of usurping trial

court’s role as factfinder. This Court should grant review because the court of

appeals’ analysis is a gross deviation from settled Fourth Amendment appellate

standards of review.




    20
        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).
                                      PRAYER

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

this Petition for Discretionary 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)




                                          16
                       CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool this

document contains 3,198 words, exclusive of the items excepted by T EX. R. A PP. P.

9.4(i)(1).



                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         17
                           CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on June 3, 2015, via 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




                                         18
APPENDIX A
                   DAVID LEE CLEM ENT, JR., Appellant v. THE STATE OF TEXAS, Appellee

                                                    No. 11-13-00055-CR

                     COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

                                                2015 Tex. App. LEXIS 2671


                                                M arch 20, 2015, Decided
                                              M arch 20, 2015, Opinion Filed

NOTICE:      PUBLISH. SEE TEX. R. APP. P. 47.2(b).              because we [*2] conclude that the trial court should have
                                                                granted Appellant's motion to suppress.1
PRIO R H ISTORY:         [*1] On Appeal from the 271st
District Court, W ise County, Texas. Trial Court Cause                 1 The reporter's record indicates that a DVD of
No. CR16160.                                                           Appellant's arrest was admitted during the
                                                                       punishment phase of trial. The reporter's record
                                                                       further indicates that the actual DVD was
COUNSEL: For Appellant: Jim Shaw, Ray Napolitan,                       "[m]ailed under separate cover" because the file
Law Office of Jim Shaw, Fort W orth, TX.                               was too large to transmit electronically. However,
                                                                       we have no record of the DVD being mailed to
For Appellee: Gregory Lowery, District Attorney, Lindy                 our court, and our efforts to obtain another copy
Borchardt, Assistant, Decatur, TX; Lisa C. McMinn,                     have been unsuccessful. This omission does not
Stacey Goldstein, Assistant State Prosecuting Attorney,                preclude our consideration of the appeal because a
Austin, TX.                                                            review of the DVD is unnecessary to resolve the
                                                                       issues presented to the court.
JUDGES: Panel consists of: W right, C.J., W illson, J.,
and Bailey, J.                                                  Background Facts
                                                                     Appellant was charged with DW I, which was alleged
OPINION BY: JOHN M. BAILEY
                                                                to have occurred on or about January 30, 2011. The
                                                                indictment alleged two previous DW I convictions, one in
OPINION
                                                                2010 from W ise County and one in 1993 from Tarrant
     After a bench trial, the trial court convicted David       County, to enhance the 2011 offense to felony DW I under
Lee Clement, Jr. of felony driving while intoxicated            Section 49.09(b)(2) of the Texas Penal Code. P EN AL §
(DW I). See T EX . P ENAL C O D E A NN . § 49.09(b) (W est      49.09(b)(2).
Supp. 2014). The trial court assessed his punishment at
                                                                     Appellant filed a pretrial motion to suppress the
confinement for four years in the Institutional Division of
                                                                evidence arising from his arrest.2 He also filed a motion to
the Texas Department of Criminal Justice. Appellant
                                                                quash the indictment, alleging that one of the prior DW I
asserts three issues on appeal. In his first issue, Appellant
                                                                convictions alleged in the indictment was void. The trial
argues that the trial court erred when it denied his motion
                                                                court heard the motion to suppress and the motion to
to suppress because the investigating officer lacked
                                                                quash on [*3] September 25, 2012. The trial court denied
probable cause to arrest him for DW I. Appellant alleges
                                                                both motions in open court at the end of the hearings on
in his second issue that the trial court erred when it
                                                                each motion. The trial court and the parties then
denied his motion to quash the indictment because the
                                                                immediately proceeded to trial. The trial began with
indictment "alleged a void judgment" as one of
                                                                Appellant's trial counsel announcing the following
Appellant's prior DW I convictions. In his third issue,
                                                                stipulation on the record:
Appellant asserts that the evidence was insufficient to
prove that Appellant had been convicted of two prior
                                                                         W e agreed that we would stipulate that
DW I offenses. W e uphold the trial court's denial of
                                                                       he was driving and operating a motor
Appellant's motion to quash the indictment. However, we
                                                                       vehicle on a public road or highway in
reverse the trial court's judgment and remand the case
                                                                       W ise County on that particular date. W e'll
       stipulate   to   the   intoxication   and   his            (1) that the prior conviction exists and (2) that the
       driving.                                                   defendant [*5] is linked to that conviction. Flowers v.
                                                                  State, 220 S.W.3d 919, 922 (Tex. Crim. App. 2007). The
            And I believe that after that
                                                                  State may prove a prior conviction in a number of
       stipulation, the State's only burden is to
                                                                  different ways. Id. at 921--23. The State is not required to
       prove that he has two prior convictions,
                                                                  produce a specific document or specific proof because
       your Honor.
                                                                  "[t]here is no 'best evidence' rule in Texas that requires
                                                                  that the fact of a prior conviction be proven with any
                                                                  document, much less any specific document." Id. at 921.
                                                                  The proof that is adduced to establish that the defendant
                                                                  on trial is the same person named in the prior conviction
       2    Although it is not an issue in this appeal,
                                                                  "closely resembles a jigsaw puzzle." Id. at 923 (quoting
       Appellant was subjected to a mandatory blood
                                                                  Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App.
       draw after his arrest for felony DW I. The Court
                                                                  1988)). Standing alone, the pieces usually have little
       of Criminal Appeals recently held that "a
                                                                  meaning, but when fitted together, the pieces usually
       nonconsensual search of a DW I suspect's blood
                                                                  form the picture of the person who committed the alleged
       conducted pursuant to the mandatory-blood-draw
                                                                  prior conviction or convictions. Id. The trier of fact fits
       a n d im p lie d -c o n s e n t p r o v is io n s in the
                                                                  the pieces of the jigsaw puzzle together and weighs the
       Transportation Code, when undertaken in the
                                                                  credibility of each piece. Id. W hatever form the State's
       absence of a warrant or any applicable exception
                                                                  proof takes, however, it must be sufficient to prove the
       to the warrant requirement, violates the Fourth
                                                                  defendant's prior conviction beyond a reasonable doubt.
       Amendment." State v. Villarreal, No. PD-0306-
                                                                  Id. at 923.
       14, 2014 Tex. Crim. App. LEXIS 1898, 2014 WL
       6734178, at *21 (Tex. Crim. App. Nov. 26, 2014),                In reviewing the sufficiency of the evidence to
       reh'g granted, 2015 Tex. Crim. App. LEXIS 201              determine whether the State proved the elements of the
       (Feb. 25, 2015); see Burks v. State, No. 02-13-            offense beyond a reasonable doubt, we apply the Jackson
       00560-CR, 2015 Tex. App. LEXIS 99, 2015 WL                 v. Virginia standard. Brooks v. State, 323 S.W.3d 893,
       115964, at *1 (Tex. App.--Fort Worth Jan. 8,               895--96 (Tex. Crim. App. 2010) (citing Jackson v.
       2015, pet. filed); Forsyth v. State, 438 S.W.3d            Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
       216, 223 (Tex. App.--Eastland 2014, pet. ref'd).           560 (1979)). Under that standard, a reviewing court must
                                                                  consider [*6] all evidence in the light most favorable to
     Appellant personally [*4] testified that he agreed to
                                                                  the verdict and, in doing so, determine whether a rational
the stipulation, and the prosecutor announced that the
                                                                  justification exists for the jury's finding of guilt beyond a
State agreed with the terms of the stipulation, whereupon
                                                                  reasonable doubt. Id. The trier of fact is the sole judge of
the trial court accepted it. The trial court ultimately found
                                                                  the weight and credibility of witness testimony; therefore,
Appellant guilty of felony DW I based upon its
                                                                  on appeal, we must give deference to the factfinder's
determination that the State had sufficiently proven
                                                                  determinations. Id. If the record contains conflicting
Appellant's two prior DW I convictions.
                                                                  inferences, we must presume that the factfinder resolved
                                                                  such facts in favor of the verdict and defer to that
Sufficiency of the Evidence
                                                                  resolution. Id.
     In his third issue, Appellant challenges the
                                                                       Appellant limits his evidentiary challenge under his
sufficiency of the evidence to prove that he had
                                                                  third issue to the contention that the State failed to
previously been convicted of two prior offenses of
                                                                  affirmatively link him to the Tarrant County conviction.
driving while intoxicated.3 A person may be charged with
                                                                  Specifically, Appellant alleges that the officer that
felony DW I if he has two previous convictions for DW I.
                                                                  testified as a fingerprint expert was not able to read the
P ENAL § 49.09(b)(2). The two prior DW I convictions are
                                                                  fingerprint on the judgment from the Tarrant County
elements of the offense of felony DW I. Martin v. State,
                                                                  conviction and, thus, could not tell if Appellant was
200 S.W.3d 635, 640--41 (Tex. Crim. App. 2006). The
                                                                  indeed the individual convicted in the Tarrant County
two prior convictions are jurisdictional, as opposed to
                                                                  conviction. W e conclude that the State offered additional
mere enhancement allegations. Id. at 640. The State must
                                                                  evidence that sufficiently linked Appellant to the Tarrant
prove the two prior DW I convictions at the
                                                                  County conviction.
guilt/innocence stage of trial in order to obtain a felony
DW I conviction. See Gibson v. State, 995 S.W.2d 693,                  State's Exhibit No. 2 contained a certified Order
696 (Tex. Crim. App. 1999).                                       Revoking Probation for Appellant's conviction in Tarrant
                                                                  [*7] County for DW I. State's Exhibit No. 3 consisted of
       3 W e are initially addressing Appellant's third           the Texas Department of Public Safety's Certified
       issue because it could potentially result in his           Abstract Record for Appellant. State's Exhibit No. 3
       acquittal.                                                 contained Appellant's name, date of birth, address,
                                                                  driver's license number, dates of arrest, charged offenses,
     Evidence that a defendant has been convicted of a
                                                                  findings of guilt, and the judicial case identification
prior offense must establish beyond a reasonable doubt
number for the Tarrant County conviction. This                 too-lenient punishment should not        be permitted to
information matches the information in the revocation of       collaterally attack that judgment on a   later date on the
probation order arising from the Tarrant County                basis of the illegal leniency." 240       S.W.3d at 892.
conviction, with one exception--the Certified Abstract         Accordingly, Appellant is prohibited     from collaterally
Record lists the "conviction date" for the Tarrant County      attacking the W ise County conviction    on the basis of it
conviction as being December 12, 1994. This was                being too lenient. Id. Appellant's       second issue is
actually the date that Appellant's probation was revoked       overruled.
for the Tarrant County conviction.
                                                               Motion to Suppress
    The charging instrument for the subsequent W ise
County conviction alleged the details of the Tarrant                In his first issue, Appellant challenges the trial
County conviction. Additionally, the judgment from the         court's denial of his motion to suppress. Appellant alleged
W ise County conviction that Appellant offered into            as follows in his motion:
evidence during the hearing on the motion to quash
specifically states that this was a conviction for a Class A             For cause, Defendant would show that
misdemeanor DW I under Section 49.09(a). See P EN AL §                the stop of Defendant was without a
49.09(a). A conviction of a Class A misdemeanor DW I                  warrant or probable cause. There was no
requires a finding of a prior conviction of DW I. Id. Thus,           probable cause based upon acceptable
Appellant pleaded guilty [*8] to a Class A misdemeanor                scientific protocol. Further, the so-called-
in the subsequent W ise County conviction that                        tipster [*10]     was not shown to be
specifically alleged the existence of his prior Tarrant               credible. The officer did nothing to
County conviction.                                                    corroborate the tip from the unknown
                                                                      informant.
     Viewing the evidence in the light most favorable to
the verdict, we conclude that the trial court could have
found beyond a reasonable doubt that Appellant had been
                                                               The suppression hearing began with the prosecutor
convicted of the two prior DW Is alleged in the
                                                               acknowledging that the State had the burden of
indictment. W e overrule Appellant's third issue.
                                                               establishing a valid basis for the arresting officer's
                                                               conduct because Appellant was "stopped without
Motion to Quash Indictment
                                                               warrant." The prosecutor then called Trooper Jeff
     In his second issue, Appellant challenges the trial       Johnson of the Texas Department of Public Safety as a
court's denial of his pretrial motion to quash the             witness.
indictment.4 Appellant argues that the indictment should
                                                                    Trooper Johnson testified on direct examination that
have been quashed because the 2010 conviction that was
                                                               he was dispatched at 12:30 a.m. on January 30, 2011, to a
alleged in the indictment is purportedly void and
                                                               "possible intoxicated driver leaving the store." He arrived
therefore could not be used to elevate his 2011 offense to
                                                               at the Exxon at the intersection of Highway 101 and
a felony DW I. He bases this contention on the argument
                                                               Highway 380. W hile he was making a turn onto Highway
that the punishment he received for his W ise County
                                                               101, Trooper Johnson saw a white Pontiac in the Exxon
conviction was below the minimum punishment range
                                                               parking lot. This vehicle matched the description given to
for a Class A misdemeanor DW I. In this regard,
                                                               Trooper Johnson over the radio. Trooper Johnson then
Appellant received a punishment of three days in jail,
                                                               saw "the Pontiac's brake lights come on," and the car
with the sentence being suspended and Appellant placed
                                                               "started backing up." The Pontiac pulled onto Highway
on community supervision for one day. The minimum
                                                               101 driving northbound.
range of jail time for a Class A misdemeanor DW I is
thirty days. P EN AL § 49.09(a).                                    Trooper Johnson pulled behind the vehicle and
                                                               noticed that the vehicle "accelerated quickly." Trooper
       4 W e are addressing [*9] Appellant's second            Johnson testified that he checked the speed of the vehicle
       issue next because it is jurisdictional in nature.      on the radar in his patrol car and that "it was 62 [*11] in
                                                               a 55." The posted speed limit on that road was fifty-five
     W e review de novo a trial court's ruling on a motion
                                                               miles per hour. The prosecutor concluded his direct
to quash an indictment because the sufficiency of a
                                                               examination of Trooper Johnson as soon as he elicited
charging instrument is a question of law. Smith v. State,
                                                               testimony from Trooper Johnson that he stopped
309 S.W.3d 10, 13--14 (Tex. Crim. App. 2010); State v.
                                                               Appellant because of the speeding violation that he
Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
                                                               observed. In this regard, it appears that the State treated
Appellant's challenge to the W ise County conviction fails
                                                               Appellant's motion to suppress as solely an attack on the
as a matter of law under the holding in Rhodes v. State,
                                                               arresting officer's basis for initiating the stop of
240 S.W.3d 882, 892 (Tex. Crim. App. 2007). Rhodes is
                                                               Appellant.
applicable because the W ise County conviction was the
result of a plea agreement. The Court of Criminal                  On cross-examination, Appellant's trial counsel
Appeals held in Rhodes that "[a] defendant who has             asked Trooper Johnson about an anonymous tip that
enjoyed the benefits of an agreed judgment prescribing a       Trooper Johnson had overheard on the radio. Trooper
Johnson testified that he stopped Appellant because of       App. 2007) (Amador I). This burden may be satisfied by a
his speed and not because of the anonymous tip about an      showing that one of the statutory exceptions to the
intoxicated person. Trooper Johnson further testified on     warrant requirement is met. See Torres v. State, 182
cross-examination that Appellant "eventually stopped"        S.W.3d 899, 902 (Tex. Crim. App. 2005).
after the lights on Trooper Johnson's patrol vehicle had
                                                                  In this case, it is undisputed that no warrant was
been "on for a while." Appellant's counsel obtained a
                                                             issued for Appellant's arrest. As a result, the State bore
copy of Trooper Johnson's report during cross-
                                                             the burden of establishing the reasonableness of
examination. Based upon the questions asked during
                                                             Appellant's detention and arrest. See Young, 283 S.W.3d
cross-examination, it appears that Trooper Johnson noted
                                                             at 872; Amador I, 221 S.W.3d at 672--73. Under the
in the report that Appellant "almost struck the guardrail"
                                                             Fourth Amendment, a warrantless arrest for an offense
when pulling over. However, Trooper Johnson did not
                                                             committed in the officer's presence is reasonable if the
observe [*12] Appellant weaving in his lane. Appellant's
                                                             officer has probable cause. Amador v. State, 275 S.W.3d
counsel further elicited testimony from Trooper Johnson
                                                             872, 878 (Tex. Crim. App. 2009) (Amador II). "'Probable
during cross-examination that Appellant refused to
                                                             cause' for a warrantless arrest exists if, [*14] at the
perform any field sobriety tests and that Appellant told
                                                             moment the arrest is made, the facts and circumstances
Trooper Johnson what he had to drink. Near the end of
                                                             within the arresting officer's knowledge and of which he
counsel's brief cross-examination, he asked Trooper
                                                             has reasonably trustworthy information are sufficient to
Johnson: "So, you arrested him, based upon the odor of
                                                             warrant a prudent man in believing that the person
alcohol on his breath?" Trooper Johnson replied in the
                                                             arrested had committed or was committing an offense."
affirmative.
                                                             Id. The test for probable cause is an objective one,
     At the conclusion of the evidence presented during      unrelated to the subjective beliefs of the arresting officer,
the suppression hearing, the trial court received closing    and it requires a consideration of the totality of the
arguments from the attorneys. The prosecutor argued that     circumstances facing the arresting officer. Id. A finding
Trooper Johnson had "probable cause to stop" Appellant       of probable cause requires more than bare suspicion but
because of his observation of Appellant's speeding           less than would justify conviction. Id. W hether a specific
violation. Appellant's trial counsel responded by arguing    search or seizure is reasonable or supported by probable
as follows:                                                  cause is a question of law subject to de novo review.
                                                             Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App.
         And he smells alcohol on his breath, so             2006).
       he doesn't do any tests, doesn't do
                                                                  In the absence of express findings of fact and
       anything. No evidence of intoxication
                                                             conclusions of law, the trial court's denial of Appellant's
       except alcohol on his breath, and he's
                                                             motion to suppress constitutes an implicit conclusion by
       arrested for DW I.
                                                             the trial court that the State carried its burden of proving
            It's our position that anything after            that, under the totality of the circumstances, Trooper
       the stop should be suppressed, because                Johnson's warrantless arrest of Appellant was supported
       there's no probable cause for his arrest.             by probable cause for an offense committed in his
                                                             presence. Amador II, 275 S.W.3d at 879. Our task is to
                                                             determine whether the trial court, in so concluding, [*15]
On appeal, Appellant does not challenge Trooper              abused its discretion. Id. Because of the very limited
Johnson's basis for initiating the traffic stop. Instead,    inquiry at the hearing on the motion to suppress regarding
Appellant directs his challenge [*13] on the contention      Trooper Johnson's basis for arresting Appellant, we
that Trooper Johnson did not have probable cause to          conclude that the trial court erred in denying the motion
arrest him for DW I. 5                                       to suppress.
                                                                  Appellant alleges that Trooper Johnson arrested him
       5 The State does not assert, nor do we find, that
                                                             for DW I "based solely upon the odor of alcohol on
       Appellant failed to preserve his challenge to the
                                                             Appellant's breath." Appellant additionally contends as
       probable cause supporting his warrantless arrest
                                                             follows in his brief:
       by Trooper Johnson.
     A defendant seeking to suppress evidence on the                     Trooper Johnson did not observe
basis of an alleged Fourth Amendment violation bears                anything abnormal about Appellant's eyes
the initial burden of rebutting the presumption of proper           or speech; nor did he notice if Appellant
police conduct. Young v. State, 283 S.W.3d 854, 872                 swayed when he walked, or any other
(Tex. Crim. App. 2009). A defendant meets this burden               signs that might indicate that Appellant
by demonstrating that the challenged search or seizure              was intoxicated.
occurred without a warrant. Id. The burden then shifts to
the State to prove that the search or seizure was
reasonable under the totality of the circumstances.          W e disagree with Appellant's limited view of Trooper
Amador v. State, 221 S.W.3d 666, 672--73 (Tex. Crim.         Johnson's testimony. Trooper Johnson simply was not
asked about any physical observations that he made of         guilty. The Court of Criminal Appeals has stated that
Appellant's eyes, speech, or movement; nor was he asked       appellate courts are not to speculate as to an appellant's
what effect, if any, these observations may have had on       reasons for entering a "guilty" plea or as to whether the
his decision to arrest Appellant. Trooper Johnson's           appellant would have done so if the motion to suppress
affirmative response to the question from Appellant's         had been granted. See Holmes v. State, 323 S.W.3d 163,
trial counsel about the odor of alcohol indicates that it     172--73 (Tex. Crim. App. 2009); McKenna v. State, 780
was a factor he relied upon in making the decision to         S.W.2d 797, 799--800 (Tex. Crim. App. 1989); Kraft v.
arrest Appellant.6 However, the record is silent as to what   State, 762 S.W.2d 612, 613--15 (Tex. Crim. App. 1988);
other factors Trooper Johnson [*16] may have relied           Paulea v. State, 278 S.W.3d 861, 867 (Tex. App.--
upon in making the decision to arrest. W hether probable      Houston [14th Dist.] 2009, pet. ref'd). As long as the
cause exists to justify a warrantless arrest must be          evidence that should have been suppressed would in any
considered under the totality of the circumstances            measure inculpate the accused, this court must presume
surrounding the arrest. Amador II, 275 S.W.3d at 878.         that the trial court's denial of Appellant's motion to
Based on the very limited record developed at the             suppress influenced Appellant's decision to plead "guilty"
hearing on the motion to suppress regarding Trooper           and is reversible error. See M cKenna, 780 S.W.2d at 799-
Johnson's basis for arresting Appellant, we conclude that     -800; Kraft, 762 S.W.2d at 613--15; Paulea, 278 S.W.3d
the trial court erred in determining that the State met its   at 867. The record in this appeal indicates that Appellant
burden of proof to show probable cause for Appellant's        was subjected to [*18] a mandatory blood draw after his
arrest. To hold otherwise would require us to speculate       arrest. W hile the record is silent regarding the results of
on what other factors, if any, Trooper Johnson may have       the blood draw, we assume that the results were
relied upon in arresting Appellant, including Appellant's     inculpatory based upon Appellant's stipulation to being
refusal to perform field sobriety tests,7 Appellant's         intoxicated--a stipulation that occurred after the motion to
response to the question regarding what he had been           suppress was denied. Accordingly, we presume that the
drinking, Appellant's speeding violation, and Appellant's     trial court's erroneous denial of Appellant's motion to
act of almost striking a guardrail.                           suppress influenced his decision to enter the stipulation.
                                                              Therefore, the error is reversible. W e sustain Appellant's
       6 Appellant cites Domingo v. State, 82 S.W.3d          first issue.
       617, 621--22 (Tex. App.--Amarillo 2002, no pet.),
       for the proposition that the odor of alcohol alone     Conclusion
       is not sufficient to establish probable cause to
                                                                   W e conclude that Appellant's conviction was
       make an arrest for intoxication.
                                                              supported by sufficient evidence. Additionally, we uphold
       7 See Maxwell v. State, 253 S.W.3d 309, 314
                                                              the trial court's denial of Appellant's pretrial motion to
       (Tex. App.--Fort Worth 2008, pet. ref'd) (noting
                                                              quash the indictment. However, we sustain Appellant's
       suspect's refusal to perform field sobriety tests as
                                                              first issue challenging the trial court's denial of his
       a factor supporting probable cause to make DW I
                                                              pretrial motion to suppress.
       arrest).
      The State responds to Appellant's challenge to the      This Court's Ruling
probable cause for the arrest by [*17] asserting that the
                                                                  W e reverse the judgment of the trial court, and we
trial court did not err in overruling Appellant's motion to
                                                              remand this cause to the trial court for further
suppress because "the record is absent of any evidence
                                                              proceedings consistent with this opinion.
obtained by the State after Appellant's arrest that would
be subject to suppression." Based on this assertion, the          JOHN M. BAILEY
State contends that any error by the trial court in denying
                                                                  JUSTICE
the motion to suppress is harmless. W e disagree with the
State's analysis. After the trial court erroneously denied        March 20, 2015
the motion to suppress, Appellant stipulated to the
allegation that he was driving while intoxicated. In many         Publish. See T EX . R. A PP . P. 47.2(b).
respects, Appellant's stipulation is akin to a plea of
APPENDIX B
                                                        1 of 99 DOCUMENTS

                     DAVID LEE CLEM ENT, JR., Appellant v. THE STATE OF TEXAS, Appellee

                                                         No. 11-13-00055-CR

                       COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

                                                     2015 Tex. App. LEXIS 4801


                                                     M ay 7, 2015, Opinion Filed

NOTICE:        PUBLISH. SEE TEX. R. APP. P. 47.2(B).                  on our own initiative and tacitly addressed it in our
                                                                      original opinion by listing the instances wherein
PRIO R H ISTO RY:        [*1] On Appeal from the 271st                Appellant's counsel addressed the probable cause
District Court, W ise County, Texas. Trial Court Cause                supporting [*2] Appellant's arrest. See id. at 532-33
No. CR16160.                                                          ("Ordinarily, a court of appeals should review
Clement v. State, 2015 Tex. App. LEXIS 2671 (Tex. App.                preservation of error on its own motion."); Jones v. State,
Eastland, Mar. 20, 2015)                                              942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997)
                                                                      ("Preservation of error is a systemic requirement that a
                                                                      first-level appellate court should ordinarily review on its
JUDGES: Panel consists of: W right, C.J., W illson, J.,               own motion.").
and Bailey, J.
                                                                           There are three distinct types of police-citizen
                                                                      interactions: (1) consensual encounters that do not
OPINION BY: JOHN M. BAILEY
                                                                      implicate the Fourth Amendment; (2) investigative
                                                                      detentions that are Fourth Amendment seizures of limited
OPINION
                                                                      scope and duration that must be supported by a
                                                                      reasonable suspicion of criminal activity; and (3) arrests,
OPINIO N O N              STA TE'S         M O TIO N        FOR
                                                                      the most intrusive of Fourth Amendment seizures, that
REHEARING
                                                                      are reasonable only if supported by probable cause. Wade
      The State has filed a motion for rehearing wherein it           v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013);
alleges that Appellant did not properly preserve, for                 State v. Woodard, 341 S.W.3d 404, 410-11 (Tex. Crim.
appellate review, his complaint that his arrest was illegal.          App. 2011). The facts in this appeal essentially present
The State bases its preservation contention on two                    three "seizures" for the purpose of analysis under the
grounds: (1) that Appellant failed to put the State and the           Fourth Amendment: (1) Trooper Johnson's initial traffic
trial court on notice that he was contesting the legality of          stop of Appellant; (2) Trooper Johnson's continued
his arrest and (2) that Appellant's presentation of the               detention of Appellant for the purpose of investigating a
contention during the closing argument was untimely                   possible offense of driving while intoxicated; and (3)
under T EX . C O D E C RIM . P RO C . A NN . art. 28.01, § 2 (W est   Trooper Johnson's arrest of Appellant for driving while
2006).                                                                intoxicated.
    Preservation of error is a systemic requirement on                     In the context of the three types of police-citizen
appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.                interactions described above, Trooper Johnson's initial
App. 2009). If an issue has not been preserved for appeal,            stop and then his continued detention of Appellant for
an intermediate court of appeals should not address the               investigative purposes was an "investigative [*3]
merits of that issue. Id. Even though the State did not               detention" that must have been supported by reasonable
assert a preservation contention in its initial briefing, we          suspicion.1 See Davis v. State, 947 S.W.2d 240, 244-45
previously reviewed the question of preservation of error             (Tex. Crim. App. 1997) (If an officer develops reasonable
suspicion during a valid traffic stop that the detainee is
engaged in criminal activity, continued detention is          During closing arguments on the motion to suppress,
justified.). Trooper Johnson's subsequent arrest of           Appellant's counsel argued as follows:
Appellant constituted another level of seizure that must               And he smells alcohol on his breath, so
have been supported by the heightened standard of                    he doesn't do any tests, doesn't do
probable cause in order to satisfy the Fourth Amendment.             anything. No evidence of intoxication
See Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex.                except alcohol on his breath, and he's
Crim. App. 2011) (citing Alabama v. White, 496 U.S.                  arrested for DW I.
325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)) ("A
                                                                          It's our position that anything after
brief investigative detention constitutes a significantly
                                                                     the stop should be suppressed, because
lesser intrusion upon the privacy and integrity of the
                                                                     there's no probable cause for his arrest.
person than a full-blown custodial arrest. For this reason,
a warrantless investigative detention may be deemed                       The arrest led to an interview. The
'reasonable' for Fourth Amendment purposes on the basis              interview led to a mandatory blood draw,
of a lesser quantum or quality of information--reasonable            based upon the belief that it was his third
suspicion rather than probable cause.").                             DW I.

       1     One might contend that Trooper Johnson's
       initial stop of Appellant, followed by his             W e concluded that Appellant preserved his complaint
       continued detention of Appellant for investigative     regarding the probable cause supporting his arrest based
       purposes, constituted a single seizure because         in part on counsel's closing argument to the trial court
       they are portions of the same investigative            that "there's no probable cause for [Appellant's] arrest."
       detention. W e are treating them as separate
                                                                   The clearest assertion by Appellant that Trooper
       seizures for the purposes of our analysis because
                                                              Johnson lacked probable cause to arrest him occurred
       Appellant challenged Trooper Johnson's basis for
                                                              during the closing statement when defense counsel said:
       initiating the traffic stop but Appellant [*4] did
                                                              "[T]here's no probable cause for his arrest" (emphasis
       not challenge Trooper Johnson's basis for
                                                              added). The State contends [*6] that this statement did
       continuing the investigative stop prior to his
                                                              not constitute a challenge to the legality of Appellant's
       arresting Appellant.
                                                              arrest because it followed counsel's request to suppress
     As noted in our original opinion, the State treated      "anything after the stop." The State argues that the
Appellant's written motion to suppress as solely an attack    alleged violation was incongruous with the requested
on the arresting officer's basis for initiating the traffic   relief because the illegality of the subsequent arrest
stop. In this regard, Appellant's motion to suppress          would not preclude the admissibility of evidence seized
addressed the credibility of the anonymous tip and its        prior to the illegal arrest. The State is essentially
corroboration by the investigating officer. The prosecutor    asserting that, when defense counsel made this argument,
easily overcame this contention by establishing that          Appellant was challenging Trooper Johnson's initial basis
Trooper Johnson stopped Appellant for a speeding              for stopping Appellant. W e disagree with the State's very
violation rather than upon reliance on the anonymous tip.     narrow reading of defense counsel's argument.
However, Appellant also alleged a lack of probable
                                                                   Trooper Johnson's arrest of Appellant constituted a
cause, the standard that is associated with the required
                                                              seizure under the Fourth Amendment that required a
basis for supporting an arrest. Furthermore, the inquiry at
                                                              showing under the heightened standard of probable
the hearing on the motion to suppress into Trooper
                                                              cause. Defense counsel's argument invoked the probable
Johnson's actions did not end with his initial basis for
                                                              cause standard in challenging Appellant's arrest. W e
stopping Appellant. Specifically, Appellant's counsel
                                                              disagree that defense counsel's overstatement of the relief
inquired on cross-examination about what transpired
                                                              to which he may have been entitled nullified Appellant's
after the stop. As we stated in the original opinion:
                                                              challenge to the legality of his arrest. Defense counsel's
                                                              argument suggests that evidentiary items were obtained
            Appellant's counsel further elicited
                                                              as a result of Appellant's arrest, including lab results
       testimony from Trooper Johnson during
                                                              from a mandatory blood draw. Accordingly, [*7] the
       cross-examination that Appellant refused
                                                              reference to suppressing evidentiary items recovered
       to perform any field sobriety tests and
                                                              after the stop would apply to those seized after the arrest.
       [*5] that Appellant told Trooper Johnson
       what he had to drink. Near the end of                       Defense counsel's argument was not the only
       counsel's brief cross-examination, he                  reference to Appellant's contention of an illegal arrest. As
       asked Trooper Johnson: "So, you arrested               noted previously, Trooper Johnson was specifically
       him, based upon the odor of alcohol on                 asked, "So, you arrested him, based upon the odor of
       his breath?" Trooper Johnson replied in                alcohol on his breath?" Additionally, in Appellant's
       the affirmative.                                       written motion to suppress, he referenced probable cause,
                                                              the standard associated with arrests under the Fourth
Amendment.2
                                                                    W e concluded that Appellant preserved his
                                                               complaint of an illegal arrest occurring without [*9]
       2     The Texas Court of Criminal Appeals has
                                                               probable cause because he apprised the trial court of his
       stated that "[o]ne might reasonably question
                                                               complaint at a time when the trial court was in a position
       whether a statement during closing argument
                                                               to grant his requested relief. Additionally, Appellant
       fairly puts the opposing party and the trial judge
                                                               cited the Fourth Amendment as a basis for his motion to
       on notice that a party is litigating the existence of
                                                               suppress, thereby alerting the State and the trial court of
       probable cause." Amador v. State, 221 S.W.3d
                                                               the legal basis of his challenge: the Fourth Amendment.
       666, 671 n.9 (Tex. Crim. App. 2007) ("Amador
                                                               Buchanan v. State, 207 S.W.3d 772, 773, 776 (Tex. Crim.
       I"). However, the court did not address the
                                                               App. 2006), relied upon by the State, is inapposite. There,
       preservation issue in Amador I because the State
                                                               the court essentially held that a motion to suppress based
       did not petition for review on the issue. Id. The
                                                               upon federal and state constitutional principles, not upon
       court noted in Amador I that the Beaumont Court
                                                               statutory grounds, was not sufficient, in the context of the
       of Appeals decided the preservation issue
                                                               motion, to also preserve error under Chapter 14 of the
       adversely to the State, 221 S.W.3d at 671 n.9; see
                                                               Code of Criminal Procedure. Buchanan, 207 S.W.3d at
       Amador v. State, 187 S.W.3d 543, 548 (Tex. App.-
                                                               773, 776. Here, the motion and the trial court's ruling
       -Beaumont 2006), rev'd, 221 S.W.3d 666 (Tex.
                                                               were based upon clearly stated Fourth Amendment
       Crim. App. 2007). The court's concern expressed
                                                               grounds.
       in Amador I is inapplicable to the facts in this
       case because of the other instances wherein                  W ith respect to the State's timeliness assertion under
       Appellant challenged his arrest.                        Article 28.01, section 2, the State has not cited any
                                                               authority that this timing requirement for pretrial motions
     A "point of error on appeal must comport [*8] with
                                                               trumps the timeliness requirement for preservation of
the objection made at trial." Wilson v. State, 71 S.W.3d
                                                               error under Rule 33.1. Additionally, the State did not
346, 349 (Tex. Crim. App. 2002). As stated in Resendez
                                                               present this argument to the trial court for consideration,
v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009):
                                                               thereby depriving Appellant of the opportunity to
                                                               respond to it. Accordingly, it is not a "theory of law
           Rule 33.1(a) of the Texas Rules of
                                                               applicable to the case" that is available to justify the trial
       Appellate Procedure provides that a
                                                               court's erroneous [*10] ruling on Appellant's motion to
       complaint is not preserved for appeal
                                                               suppress. See State v. Esparza, 413 S.W.3d 81, 89-90
       unless it was made to the trial court "by a
                                                               (Tex. Crim. App. 2013).
       timely request, objection or motion" that
       "stated the grounds for the ruling that the                  As we noted in our original opinion, a defendant
       complaining party sought from the trial                 seeking to suppress evidence on the basis of an alleged
       court with sufficient specificity to make               violation of the Fourth Amendment bears the initial
       the trial court aware of the complaint,                 burden of rebutting the presumption of proper police
       unless the specific grounds were apparent               conduct. Young v. State, 283 S.W.3d 854, 872 (Tex.
       from the context."                                      Crim. App. 2009); Amador I, 221 S.W.3d at 672. A
                                                               defendant meets this burden by demonstrating that the
                                                               challenged search or seizure occurred without a warrant.
Resendez, 306 S.W.3d at 312 (quoting T EX . R. A PP . P.       Young, 283 S.W.3d at 872; Amador I, 221 S.W.3d at 672.
33.1(a)(1)(A)). "The purpose of requiring a specific           The burden then shifts to the State to prove that the
objection in the trial court is twofold: (1) to inform the     search or seizure was reasonable under the totality of the
trial judge of the basis of the objection and give him the     circumstances. Young, 283 S. W.3d at 872; Amador I,
opportunity to rule on it; (2) to give opposing counsel the    221 S. W.3d at 672-73. The Texas Court of Criminal
opportunity to respond to the complaint." Id. As               Appeals has described the State's burden in this situation
explained in Resendez:                                         as follows:
                Although there are no technical
         considerations or forms of words required                        W hen a defendant asserts a search and
         to preserve an error for appeal, a party                      seizure violation under the Fourth
         must be specific enough so as to "let the                     Amendment, the defendant bears the
         trial judge know what he wants, why he                        burden of producing evidence to rebut the
         thinks himself entitled to it, and do so                      presumption of proper conduct by law
         clearly enough for the judge to understand                    enforcement. A defendant can satisfy this
         him at a time when the trial court is in a                    burden with evidence that the seizure
         proper position to do something about it."                    occurred without a warrant. If the
                                                                       defendant satisfies the initial burden, the
                                                                       burden then shifts to the State to establish
Id. at 312-13 (quoting Lankston v. State, 827 S.W.2d 907,              that the seizure was nevertheless
909 (Tex. Crim App. 1992)).                                            reasonable under the applicable standard--
       either reasonable suspicion or probable                       Appellant's response to the question
       cause.                                                        regarding what he had been drinking,
                                                                     Appellant's speeding violation, and
                                                                     Appellant's act of almost striking a
Woodard, 341 S.W.3d at 412 (emphasis added)                          guardrail.
(footnotes omitted) (citing Amador v. State, 275 S.W.3d
872, 878 (Tex. Crim. App. 2009) (Amador II)).
                                                              The State contends that this statement indicates that we
     As we stated in our original opinion, "[I]t is [*11]
                                                              relied upon a subjective test rather than an objective test
undisputed that no warrant was issued for Appellant's
                                                              for determining probable cause. W e disagree. The above-
arrest. As a result, the State bore the burden of
                                                              quoted statement followed a sentence wherein we
establishing the reasonableness of Appellant's detention
                                                              commented "on the very limited record developed at the
and arrest."3 Although the State met its burden to
                                                              hearing on the motion to suppress regarding Trooper
establish the reasonableness of the initial stop, the State
                                                              Johnson's basis for arresting Appellant." Simply put, we
did not develop the record to support the continued
                                                              were expressing our dilemma in conducting an analysis
investigatory detention of Appellant after the initial stop
                                                              of the totality of the circumstances facing the arresting
or the subsequent arrest of Appellant. Even though a
                                                              officer on a very limited record rather than basing our
portion of the facts pertaining to Appellant's continued
                                                              analysis on Trooper Johnson's subjective beliefs.
detention and subsequent arrest were developed during
Trooper Johnson's cross-examination, the evidence did              Finally, we note that a pretrial motion to suppress
not address "the totality of the circumstances facing the     evidence is "nothing more than a specialized objection to
arresting officer." W e reviewed the portion of the           the admissibility of that evidence" that is interlocutory in
supporting facts adduced at trial and concluded that they     nature. Black v. State, 362 S.W.3d 626, 633 (Tex. Crim.
did not constitute probable cause under an objective          App. 2012). As such, a pretrial motion to suppress
standard.                                                     evidence may be the [*13] subject of reconsideration
                                                              and revision as is any other ruling on the admissibility of
       3 The hearing on the motion to suppress began          evidence. Id. Accordingly, the State will not be precluded
       with the prosecutor stating, "The State will           from seeking a reconsideration of the suppression on a
       stipulate that he was stopped without warrant. . . .   more fully developed record upon the remand of this case
       And, therefore, the burden shifts to the State for     to the trial court.
       probable cause of action."
                                                                  The State's motion for rehearing is denied.
    The State additionally contends in its motion for
                                                                  /s/ John M. Bailey
rehearing that we used the wrong standard for
determining probable cause wherein we stated:                     JOHN M. BAILEY
                                                                  JUSTICE
          To hold otherwise [*12] would require
       us to speculate on what other factors, if                  May 7, 2015
       any, Trooper Johnson may have relied
       upon in arresting Appellant, including                     Publish. See Tex. R. App. P. 47.2(b).
       Appellant's refusal to perform field
       s o b r ie ty te sts, [fo o tn o te o m itte d ]
