             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-0681-15



                          DAVID LEE CLEMENT, JR., Appellant

                                                  v.

                                    THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE ELEVENTH COURT OF APPEALS
                              WISE COUNTY

      J OHNSON, J., delivered the opinion of the Court in which M EYERS, K EASLER,
H ERVEY, A LCALÁ, R ICHARDSON, Y EARY, and N EWELL, JJ., joined. K ELLER, P.J.,
concurred.

                                           OPINION

       After his motion to suppress was denied, appellant was found guilty of felony driving while

intoxicated and was sentenced to four years in the institutional division of the Texas Department of

Criminal Justice. Finding that the arresting officer lacked probable cause to arrest, the court of

appeals reversed appellant’s conviction and remanded the case to the trial court. The state filed a

motion for rehearing, asserting that the appellant had failed to preserve his challenge to the legality

of the arrest. The court of appeals denied the motion for rehearing.
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       We granted the state’s petition for discretionary review that raised two grounds for review:

       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?

       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?

       We conclude that appellant preserved his claim of illegal arrest, and we overrule the state’s

first ground. However, we also conclude that, by basing its holding that appellant was illegally

arrested on the officer’s subjective reasoning, the court of appeals misapplied the law. We sustain

the state’s second ground for review, reverse the judgment of the court of appeals, and affirm the

judgment of the trial court.

                                              I. Facts

       Around 12:30 a.m. on a Sunday morning, Trooper Jeff Johnson received a dispatch about the

presence of a possibly intoxicated person at a nearby Exxon station. The dispatch also stated that

the possibly intoxicated person was driving a white Pontiac and had left the station. When Trooper

Johnson arrived, he observed a white Pontiac backing out of the parking lot and heading north on

Highway 101. Trooper Johnson followed the vehicle and noted that it accelerated quickly. He

“checked the vehicle on radar,” which revealed that the vehicle was traveling at 62 miles per hour

in an area with a speed limit of 55 miles per hour. Trooper Johnson activated his lights and stopped

the Pontiac. Appellant was the driver. Trooper Johnson testified that he did not see the appellant

commit any traffic-law violations other than speeding.

       In his offense report, Trooper Johnson stated that the vehicle “almost struck the guardrail”

when the driver drove onto the shoulder of the road in response to Trooper Johnson’s lights. He
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agreed with defense counsel’s suggestion that avoiding the guardrail at that particular location was

actually “pretty keen driving” and that he had stopped the vehicle for speeding, not because of the

dispatch about a possibly intoxicated driver. Trooper Johnson testified that, after the stop, he

detected the odor of an alcoholic beverage on appellant’s breath and that appellant refused to do any

field sobriety tests. He also agreed that he had arrested appellant based on the odor of an alcoholic

beverage on appellant’s breath.

       Appellant filed a written motion to suppress that

       request[ed] the Court to suppress and exclude from evidence in the above cause all
       of the evidence seized by agents of the State of Texas in this cause upon the grounds
       that said evidence was illegally seized during a search without a warrant in violation
       of the Fourth and Fourteenth Amendments to the Constitution of the United States,
       Art. 1, § 9 of the Constitution of the State of Texas, and Art. 18.01 of the Code of
       Criminal Procedure.
                                                ...

       For cause, Defendant would show that 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.

       During the hearing on appellant’s motion to suppress, the state stipulated that the stop was

without a warrant. Trooper Johnson testified that he had received a dispatch stating there was a

possible intoxicated person at an specified Exxon station and that the person was driving a white

Pontiac. He also testified that he followed a white Pontiac that left the convenience store that was

attached to that Exxon station, that the vehicle accelerated quickly, that the vehicle was traveling at

a speed greater than the posted limit, and that it was 12:30 a.m. on a Sunday morning. The state then

asked Trooper Johnson questions that seem to have been intended to establish reasonable suspicion

for stopping appellant.

       During cross-examination, appellant’s defense counsel questioned Trooper Johnson at length
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about the encounter and attempted to impeach Trooper Johnson’s testimony by comparing it to his

offense report. Defense counsel also challenged him on the location of the stop as well as appellant’s

driving performance and the basis for appellant’s arrest.

       Q. Okay. I’m just curious, when you all put, there’s a strong order (sic) of alcohol and a weak

       odor of alcohol those, basically, for scientific purposes, mean the same thing, don’t they?

       A. No, sir.

       Q. Well, if there’s no correlation between the strength of the odor and how much they’ve had

       to drink, how do you reconcile that?

       A. I don’t guess I understand what you’re asking.

       Q. He told you he wasn’t doing any tests; correct?

       A. Yes, sir.

       Q. And he didn’t do any tests there, did he?

       A. No, sir.

       Q. So you arrested him, based upon the odor of alcohol on his breath?

       A. Yes, sir.

       Q. You didn’t arrest him for speeding, did you?

       A. No, sir.

       Q. You can’t do that, can you?

       A. Sir?

       Q. Can you arrest somebody for speeding?

       A. No, sir.

       At closing, the state made a brief statement. “Your Honor, it’s a motion to suppress based
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on the stop. The officer’s testimony is he’s exceeding 55, the posted speed limit . . .. The radar unit

showed his speed over the posted speed limit, so based on that he had probable cause to stop.”

Defense counsel’s closing argument began with a summation of credibility issues that defense

counsel had raised during cross-examination. It concluded with assertions about when the stop and

arrest occurred.

                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.
                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.

                                             II. Analysis

                                      A. Preservation of Error

        In order to preserve an issue for appeal, a timely objection must be made that states the

specific ground for the objection, if the specific ground is not apparent from the context. Buchanan

v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006). A general or imprecise objection may be

sufficient to preserve error for appeal, but only if the legal basis for the objection is obvious to the

court and to opposing counsel. Id. Rule of Appellate Procedure 33.1(a) provides that, “[a]s a

prerequisite to presenting a complaint for appellate review, the record must show that . . . the

complaint was made to the trial court by a timely request, objection, or motion” stating the grounds

for the ruling sought “with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context.” TEX . R. APP . P. (TRAP) 33.1(a)(1)(A).

        The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the
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trial judge of the basis of the objection and give him the opportunity to rule on it; (2) to give

opposing counsel the opportunity to respond to the complaint. Resendez v. State, 306 S.W.3d 308,

313 (Tex. Crim. App. 2009). “As regards [to] specificity, all a party has to do to avoid the forfeiture

of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled

to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in

a proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.

App. 1992). In resolving questions of preservation of error, we may not consider arguments in

isolation; we instead must look to the context of the entire record. Douds v. State, 472 S.W.3d 670,

674 (Tex. Crim. App. 2015). See Resendez, 306 S.W.3d at 313.

        During the hearing, the state asked Trooper Johnson what he did after he observed appellant

leave the Exxon station. Trooper Johnson stated that he clocked the vehicle moving at “62 in a 55”

and that he was trained to operate the radar unit. The state passed the witness. Defense counsel

questioned Trooper Johnson on many aspects of the encounter, asking him whether the encounter

occurred in his jurisdiction, how he had corroborated the tip, his qualifications to use his radar unit,

why he had stopped appellant, appellant’s driving performance, and why he had arrested appellant.

        When defense counsel asked Trooper Johnson why he arrested appellant, Trooper Johnson

stated that he had arrested appellant because of the odor of alcohol on his breath. The state asked

no further questions, despite that, in some circumstances, this fact alone has been held insufficient

to show probable cause. Domingo v. State, 82 S.W.3d 617, 621-22 (Tex. App.—Amarillo 2002).

During closing argument, defense counsel explicitly pointed out when the stop occurred and argued

that there was no probable cause for the arrest.

        Neither the Fourth Amendment nor Article I, Section 9, of the Texas Constitution requires
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a warrant to justify an arrest based upon probable cause. Buchanan v. State, 207 S.W.3d 772, 775

(Tex. Crim. App. 2006).1 Based on a broad examination of the facts and appellant’s motion to

suppress, the state was sufficiently put on notice that the defense was challenging the arrest as well

as the stop.

          We agree with the court of appeals on the question of preservation. Looking at the entire

record, appellant sufficiently apprised the trial court of the issue, opposing counsel had an

opportunity to respond, and the trial court was in proper position to suppress the evidence. Defense

counsel may have been less than articulate in raising the issue in his motion and his cross-

examination attempts to raise questions concerning the arrest, but his cross-examination challenged

all the facts concerning the stop and the arrest. Counsel argued throughout that the state had not met

its burden of showing that Trooper Johnson had probable cause to arrest appellant based on the belief

that he had committed an offense in his presence. During closing arguments, defense counsel

attempted to clarify his argument that the arrest was without probable cause.

          The state asserted that there was probable cause for the stop. The state had already stipulated

that the stop was without a warrant, and agreed that the burden had shifted to the state to prove

probable cause. Based on the facts, this motion to suppress, the facts challenged by the defense

during the hearing on the motion to suppress, and the state’s stipulation that it had the burden to

prove probable cause, we hold the state was sufficiently put on notice of the assertion of illegal

arrest.

                                                    B. Art. 28.01

          The state asserts that defense counsel failed to challenge appellant’s arrest in a timely


          1
            It appears that defense counsel either used the word “stop” instead of “arrest” in his motion or failed to
allege that the “stop” was without reasonable suspicion and the arrest was without probable cause.
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manner. The Texas Code Criminal Procedure art. 28.01, § 2, states, “[A]ny such preliminary matters

not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed,

except by permission of the court for good cause shown.” The court of appeals opined that the state

had not cited any authority that the timing requirement of Art. 28.01 controls over the timeliness

requirement for preservation of error under TRAP 33.1. Clement v. State, No. 11-13-00055-CR,

2015 Tex. App. LEXIS 4801, at *9 (Tex. App.—Eastland 2015) (op. on reh’g). The court of appeals

reasoned that, because the state had not presented this argument to the trial court, appellant was

deprived of his right to respond to it. Id. However, Art. 28.01 is a statute, and TRAP 33.1 is an

appellate rule. Under the hierarchy of laws, if there is a conflict between a statute and an appellate

rule, the statute controls. “A statute cannot be superceded by a rule.” Igo v. State, 210 S.W.3d 645,

647 (Tex. Crim. App. 2006). And the state was the winning party at trial. The state does not have

the burden of listing every possible basis for upholding the validity of the search. State v. Mercado,

972 S.W.2d 75, 77 (Tex. Crim. App. 1998).

                                           C. Illegal Arrest

        The Fourth Amendment to the Constitution of the United States guarantees that “[t]he right

of the people to be secure in their persons ... against unreasonable ... seizures, shall not be violated.”

The Fourth Amendment Exclusionary Rule is made applicable to the states through the due process

clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Under the Fourth

Amendment, a warrantless arrest for an offense committed in the officer’s presence is reasonable if

the officer has probable cause. United States v. Watson, 423 U.S. 411, 418 (1976).

        Probable cause for a warrantless arrest exists if, at the time the arrest is made, the facts and

circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy
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information are sufficient to warrant a prudent man to believe that the arrested person had committed

or was committing an offense. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009)

(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). The test for probable cause is an objective one,

unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the

totality of the circumstances facing the arresting officer. Id. “An offense is deemed to have occurred

within the presence or view of an officer when any of his senses afford him an awareness of its

occurrence.” State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) (citing Clark v. State,

117 Tex. Crim. 153, 35 S.W.2d 420, 422 (1931)). “On a motion to suppress evidence, the defendant

bears the initial burden of producing some evidence that rebuts the presumption of proper police

conduct.” Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013). Once the defendant

establishes that the seizure was without a warrant, the burden shifts to the state to prove the search

was reasonable. Amador, 275 S.W.3d at 878.

       In the hearing on a motion to suppress, the trial court is the sole finder of fact and judge of

witness credibility. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). At a suppression

hearing, it may make reasonable inferences from the evidence presented. Amador, 275 S.W.3d at

878. We afford almost total deference to a trial court’s express or implied determination of historical

facts and review de novo the trial court’s application of the law of seizure to those facts. State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2000). We will sustain the trial court’s ruling if it

is supported by the record and is correct on any theory of law applicable to the case. See Romero

v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990). We do not view motions to suppress in

isolation, but in the context of the entire record. Douds, 472 S.W.3d at 674.

       At the motion to suppress hearing, the state stipulated that the arrest was without a warrant,
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thereby shifting the burden to the state to prove that there was probable cause for the arrest. After

hearing the evidence and arguments, the trial court denied appellant’s motion to suppress and did

not issue any findings of fact or conclusions of law. It therefore implicitly found that the state had

carried its burden of proving that Trooper Johnson had probable cause to believe that appellant had

committed an offense in his presence. We review this decision to determine if the trial court abused

its discretion.

        In its brief to the court of appeals, the state offered facts to support an objective finding of

probable cause by Trooper Johnson.

        An anonymous citizen-informant called authorities and reported that a possibly
        intoxicated person would soon be getting on the road in a white Pontiac.

        Trooper Johnson immediately corroborated some of the information when he found
        a white Pontiac at the reported location.

        Appellant was speeding.

        Appellant almost hit the guard-rail when he pulled onto the road’s shoulder.

        Appellant told Trooper Johnson he had been drinking.

        Appellant’s breath smelled of an alcoholic beverage.

        The court of appeals erred in focusing on Trooper Johnson’s statement that he had arrested

appellant based upon the odor of alcohol on his breath. The court of appeals reasoned that to hold

that the state had met its burden of proof “would require us to speculate on what other factors, if any,

Trooper Johnson may have relied upon in arresting Appellant.” Clement v. State, 461 S.W.3d 274,

282 (Tex. App.—Eastland 2015) (op. on orig. submission). Trooper Johnson’s subjective intent is

not relevant to a challenge based on the lack of probable cause, so what other factors he may have

relied upon are immaterial. The issue is whether there were objective factors that created probable
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cause for appellant’s arrest and on which Trooper Johnson could have reasonably relied.

       In this case, the dispatch did not identify the person who had reported that a possibly

intoxicated person who was driving a white Pontiac had left a nearby Exxon station, but when

Trooper Johnson arrived at the Exxon station, he observed a white Pontiac backing out of the

parking lot. His observations verified the anonymous report as to the vehicle and its location.

       Trooper Johnson followed the Pontiac and, because the vehicle was exceeding the posted

speed limit, he had probable cause to stop it. Before the Pontiac stopped, Trooper Johnson observed

driving that might indicate intoxication. Once the Pontiac was legally stopped, Trooper Johnson

observed that appellant was the driver, that he emitted an odor of alcoholic beverage, and that he

admitted to Trooper Johnson that he had been drinking. Those observations verified the report of

a “possibly intoxicated” driver. We hold that Trooper Johnson had probable cause to arrest appellant

and sustain the state’s second issue.

                                           Conclusion

       Although we find that appellant preserved his claim of illegal arrest for appellate review, we

conclude that the court of appeals erred in its holding that appellant was illegally arrested. We

reverse the judgment of the court of appeals and affirm the judgment of the trial court.




Delivered: September 14, 2016
Do not publish
