                                                                           ACCEPTED
                                                                       03-15-00228-CR
                                                                               6910062
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  9/14/2015 1:40:44 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
     THIRD DISTRICT COURT OF APPEALS

                     AUSTIN                         FILED IN
                                             3rd COURT OF APPEALS
                                                 AUSTIN, TEXAS
               ___________________           9/14/2015 1:40:44 PM
                                               JEFFREY D. KYLE
                NO. 03-15-00228-CR                   Clerk
                __________________

             CLIFTON CREWS HOYT,
                        Appellant

                       versus

               STATE OF TEXAS,
                           Appellee
 _____________________________________________

    On Appeal from A DWI Conviction Obtained in
the 391ST Judicial District Court, TOM GREEN County,
    MARCH 17, 2015, No. D-13-0316-SB, Honorable
           TOM GOSSETT, Judge Presiding
  _____________________________________________

         APPELLANT’S ORIGINAL BRIEF


                            By: /s/ John T Floyd
                            John Thomas Floyd III
                            Texas Bar No. 00790700
                            By: /s/ Christopher M. Choate
                            Christopher M. Choate
                            Texas Bar No. 24045655
                            Principal Office
                            The Kirby Mansion
                            2000 Smith Street
                            Houston, TX 77002
                            Tel: 713-224-0101
                            Fax: 713-237-1511
                            Attorneys for Appellant
                  IDENTITY OF PARTIES AND COUNSEL

John T. Floyd III, SBOT No. 00790700, Appellant’s trial counsel, Principal Office,
The Kirby Mansion, 2000 Smith Street, Houston, Texas 77002, Tel: 713-581-1060.

Christopher M. Choate, SBOT 24045655, Appellant’s trial counsel, Principal
Office, The Kirby Mansion, 2000 Smith Street, Houston, Texas 77002, Tel. 713-
581-1060.

Richard Villarreal, SBOT 00797602, Assistant District Attorney, Tom Green
County, 124 West Beauregard, San Angelo, Texas 76903, Tel: 325-659-6583.

Honorable Tom Gossett, Tom Green County, 112 W. Beauregard, San Angelo,
Texas. 76903, Tel: 325-659-6569.




                                        i
                                         TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES .................................................................................... ii
1. STATEMENT OF THE CASE..............................................................................1
2. STATEMENT REGARDING ORAL ARGUMENT ...........................................2
3. ISSUES PRESENTED...........................................................................................2
4. STATEMENT OF THE FACTS ...........................................................................2
5. ISSUE ONE: THE TRIAL COURT ERRED ........................................................5
WHEN IT DENIED THE MOTION TO SUPPRESS ..............................................5
   A. Summary ............................................................................................................5
  B. Discussion .........................................................................................................6
6. ISSUE TWO: THERE WAS INSUFFICENT EVIDENCE TO SUPPORT.......11
A CONVICTION FOR DRIVING WHILE INTOXICATED ................................11
   A. Summary .........................................................................................................11
   B. Discussion ........................................................................................................12
PRAYER ..................................................................................................................14
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................15

                                      TABLE OF AUTHORITIES
Cases
Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009)...................... 10, 11
Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) ......................... 13, 14
Brooks v. State, 323 S.W.3d 912, 926 (Tex. Crim. App. 2010) ..............................12
Condarco v. State, 2013 Tex. App. LEXIS 10741
  (Tex. App.—Austin, Aug. 27, 2013) ....................................................................13
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ..................................14
Douds v. State, 434 S.W.3d 842 (Tex. App—Houston [14th Dist.] 2014) ..............12
Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005) .................... 6, 8, 9, 11
Garcia v. State, 827 S.W.2d 937, 934 (Tex. Crim. App. 1992) ................................7


                                                            ii
Maryland v. Pringle, 540 U.S. 366, 371,
 124 S.Ct. 95, 157 L.Ed.2d 769 (2003) .................................................................11
Whren v. United States, 517 U.S. 806, 813,
 116 S.Ct. 1769, 151 L.Ed.2d 89 (1996) ...............................................................11
Statutes
TEX. PENAL CODE § 49.04..........................................................................................1
TEX. TRANSP. CODE § 724.012.................................................................................12
Rules
Tex. R. App. P. 38.1...................................................................................................2
Tex. R. App. P. 9.4...................................................................................................15




                                                          iii
                           1. STATEMENT OF THE CASE

       This appeal is from a DWI conviction obtained pursuant to TEX. PENAL

CODE § 49.04.

       In February 2013, appellant was charged in a one count indictment with

driving while intoxicated. The count had a second enhancement paragraph.

       On February 3, 2015, appellant signed a waiver of a jury trial and submitted

the waiver to the court.

       On March 17, 2015, a bench trial of this matter was conducted in Tom

Green County, Texas before the Honorable Tom Gossett. All references hereinafter

to the trial record will be referred to as “TR”.

       The defense filed a pretrial Motion to Suppress. Defense counsel renewed

the motion during trial. Judge Gossett permitted the defense to take the State’s sole

witness, Officer Antonio Aguilar, on voir dire concerning this motion. Following

Officer’s Aguilar testimony, Judge Gossett denied the motion. (TR, Vol. 2, p. 29-

50).

       On March 17, Judge Gossett convicted appellant on Count One in the

indictment, a third degree felony, and found the enhancement paragraph true based

on appellant’s plea, making his conviction a second degree felony. Id., at 79.

       Judge Gossett sentenced the appellant to fourteen (14) years in the custody

of the Texas Department of Criminal Justice. Id., at 84. The sentence was ordered

                                           1
to run concurrent to a 12-year sentence previously imposed by Judge Gossett for

another DWI conviction. Id., at 85.

      Defendant timely filed a notice of appeal and the trial record was prepared

and submitted to the court. Thus, this appeal is properly before the court.

             2. STATEMENT REGARDING ORAL ARGUMENT

      Inasmuch as the issues presented by this appeal are based exclusively on the

trial record, undersigned counsel does not believe the decisional process would be

aided by oral argument. Tex. R. App. P. 38.1(e).

                              3. ISSUES PRESENTED

      1. Whether the trial court erred in its denial of appellant’s motion to suppress

based on lack of probable cause to detain after initial traffic stop.

      2. The legal and factual evidence was insufficient at trial that the appellant

was driving while intoxicated pursuant to TEX. PENAL CODE § 49.04.

                        4. STATEMENT OF THE FACTS

      Testimony at trial by the State’s sole witness, San Angelo Police Department

patrol officer Antonio Aguilar, revealed the officer was patrolling a section of San

Angelo assigned to him on February 13, 2013. (TR., Vol. 2, p. 12-13). Officer

Aguilar received a “broadcast message” about a reckless driver. Id., at 14. A

description of the reckless driver’s vehicle license plate was provided in the




                                           2
message. Id. The vehicle was a motorcycle. Id. Officer Aguilar ran the license plate

and discovered it was registered to the appellant. Id., at 14-15.

      Officer Aguilar testified that he was sitting at a light at Bryant and

Knickerbocker when he saw the motorcycle pass by. (TR., Vol. 2, p. 15). The

officer pulled in behind the motorcycle which he identified from the broadcast

message and recognized the appellant as its driver. Id. Officer Aguilar said he

“knew” appellant’s driver’s license was “invalid at the time.” Id. However, during

voir dire questioning, the officer admitted that he had not “confirmed” whether the

appellant’s driver’s license was invalid. Id., at 31. The officer nonetheless said he

“activated” his lights to pull appellant over once the light turned green. Id., at 15.

      Officer Aguilar said it took several blocks before the appellant pulled over

his motorcycle. (TR., Vol. 2, p. 15). The officer said two additional factors caught

his attention about appellant: 1) appellant was wearing “shorts” on a cold, windy

day and 2) appellant exhibited acceleration when he pulled away from the light, a

violation of a city ordinance. Id., at 15-16. However, on voir dire examination,

Officer Aguilar testified that he did not believe the exhibition of acceleration

endangered any other motorists. Id., at 33.

      Officer Aguilar testified that once he pulled the appellant over, he observed

that besides wearing shorts, appellant “was very agitated, fidgety, seemed to be

having a hard time holding still. Everything just seemed off; it was outside the

                                           3
norm.” Id., at 18. This behavior led the officer to believe he had to conduct an

“intoxication investigation.” Id. Officer Aguilar testified he was certified both in

Standard Field Sobriety Testing (SFST) and Drug Recognition Evaluation (DRE).

Id. As part of this training, the officer said he was also certified to conduct the

horizontal gaze nystagmus (HGN) component of the SFST. Id., at 20.

       Officer Aguilar testified that he did not observe any nystagmus in

appellant’s eyes. (TR., Vol 2, p. 20). The officer added that an absence of

nystagmus indicates a subject has not consumed alcohol, and nystagmus would not

be present if the subject has consumed marijuana. Id., at 21. Officer Aguilar further

said he did not smell the odor of alcohol on appellant. Id. The officer then testified

that he performed the “walk-and-turn” part of the SFST on appellant. Id., at 22. Of

the eight clues for alcohol determination in the “walk-and-turn” test, Officer

Aguilar observed only three clues in appellant’s test. Id. The officer next

administered the “one-leg stand” part of the SFST, and found the appellant

indicated three out of the four clues in this particular test.” Id., at 23.

       Based on the foregoing clues, Officer Aguilar made a determination that the

appellant was intoxicated. (TR., Vol. 2, p. 25). The officer arrested appellant and

searched him. Id., at 25. He removed a “baggy” from appellant’s pocket. Id., at 26.

According to Officer Aguilar, appellant volunteered the substance in the bag was

marijuana. Id. The officer testified he believed the substance was marijuana. Id.

                                             4
Officer Aguilar requested that appellant provide a breath sample, which appellant

refused to do. Id.

      The State did not conduct a forensic analysis of the substance in the baggy.

If it did so, the State did not call the expert who conducted the analysis. Further,

Officer Aguilar did not perform a DRE and did not seek a warrant to obtain a

blood draw as he was permitted to do under Texas law. (TR., Vol. 2, p. 37-39).

               5. ISSUE ONE: THE TRIAL COURT ERRED
              WHEN IT DENIED THE MOTION TO SUPPRESS

A. Summary

      Officer Aguilar did not have probable cause to stop and detain appellant. He

had a broadcast about a reckless driver on a motorcycle. He had the license plate

number of the motorcycle. Before he ever encountered the motorcyclist, the officer

ran the license plate of the motorcycle and determined it was registered to

appellant. At that point, he made an unverified assumption that appellant was

driving the motorcycle without a valid license, based on appellant’s previous

license suspensions. Once he spotted appellant on the motorcycle, Officer Aguilar

activated his lights and pulled the appellant over. The stop, thus, had nothing to do

with reckless driving.

      The officer did not observe any of the classic signs of alcohol intoxication:

odor of alcohol, bloodshot eyes, slurred speech, or unsteadiness. As for drug

intoxication, Officer Aguilar observed appellant wearing shorts on a mild winter
                                         5
day; observed that appellant appeared to be agitated and fidgety; and observed that

everything just seemed to be "out of the norm.” The officer did not detect the odor

marijuana on appellant. Yet he impermissibly presumed that appellant was

intoxicated because of appellant’s prior use of marijuana.

      The foregoing factors did not give Officer Aguilar sufficient probable cause

to detain appellant for the purpose of conducting a SFST.

B. Discussion

      This case is about the evidentiary value of a police officer’s “hunch” when it

comes to determining probable cause. The trial record of this case is void of any

specific, articulable facts upon which the court can make a proper assessment of

whether the Officer Aguilar’s hunch was objectively reasonable. Ford v. State, 158

S.W.3d 488, 493 (Tex. Crim. App. 2005).

      Based on the dispatcher’s notification, Officer Aguilar had probable cause to

be on the lookout for a reckless motorcyclist. He testified that once he identified

the motorcycle and its operator as the appellant, he decided to pull the appellant

over for driving without a valid license. He had not observed appellant driving in a

reckless manner, nor had the officer run a license check to determine if the

appellant’s driver’s license had actually been suspended.

      While Officer Aguilar said he observed appellant exhibit excessive

acceleration when pulling away from a traffic light, that observation was made

                                         6
after he initiated a traffic stop by activating his lights and pulling appellant over for

a suspected invalid license. Moreover, the officer admitted that the acceleration

was not “reckless” nor did it endanger any other motorists.

      More to the point, the State did not elicit one word of testimony from Officer

Aguilar about whether he even asked for appellant’s driver’s license once the stop

was made, much less run a check to determine if the license was valid. Thus, it is

objectively reasonable to determine that the officer’s decision to initiate the traffic

stop for an invalid license was merely a pretext to conduct what he described as an

“intoxication investigation.” (TR., Vol. 2, p. 18). This pretext was based on Officer

Aguilar’s prior encounters with appellant dealing with DWI issues, as evidenced

by the fact that the officer, prior to initiating the invalid license stop, reached out to

a fellow officer to say appellant was on the road again. Id., at 30-31.

      The law in Texas is well-settled that if an officer suspects a person has

committed a traffic violation, he may legally initiate a traffic stop. Garcia v. State,

827 S.W.2d 937, 934 (Tex. Crim. App. 1992). An officer’s decision to initiate a

traffic stop for an invalid license would therefore be reasonable, so long as the

officer had specific, articulable facts—rather than assumptions—to support the

belief that a traffic violation had occurred. The officer’s decision would further be

bolstered if he sought the driver’s license information and conducted a check of the

license’s validity.

                                            7
       In the instant case, however, Officer Aguilar did not ask appellant for his

driver’s license and he did not verify whether the appellant’s license was valid.

Officer Aguilar’s actions therefore sufficiently demonstrated that the presumed

invalid license was a pretext to detain appellant so the officer could conduct an

intoxication investigation—an investigation for which he did not have probable

cause to conduct.

       The Court of Criminal Appeals in Ford observed:

             “An officer conducts a lawful temporary detention when
             he has reasonable suspicion to believe that an individual
             is violating the law. Reasonable suspicion if the officer
             has specific, articulable facts that, when combined with
             rational inferences from those facts, would leave him to
             reasonably conclude that a particular person actually is,
             has been, or soon will be engaged in criminal activity.
             This is an objective standard that disregards any
             subjective intent of the officer making the stop and looks
             solely to whether an objective basis for the stop exists. A
             reasonable suspicion determination is made by
             considering the totality of the circumstances.” Id., at 492-
             93.

       As for Officer Aguilar’s assertion that appellant’s acceleration from the light

provided additional probable cause to initiate the stop, the Ford court had this to

say:

             The court of appeals stated that “Trooper Peavy testified
             that he saw [Ford] following another car at a distance that
             Peavy believed was insufficient and, thus, in violation of
             the statute.” While this may be a permissible
             interpretation of Peavy's “following too close” testimony,
             it does not change its conclusive character into specific,
                                          8
            articulable facts. And attempting to do so requires a
            strained reading of the record. As indicated from Peavy's
            testimony, Peavy only stated that Ford was “following
            too close.” The record reveals an absence of any facts
            allowing an appellate court to determine the
            circumstances upon which Peavy could reasonably
            conclude that Ford actually was, had been, or soon would
            have been engaged in criminal activity. Instead, the trial
            court was presented only with a conclusory statement
            that Ford was violating a traffic law. We do not quarrel
            with the notion that Peavy may have in fact believed that
            Ford was following another car too closely. Nor do we
            dispute that the trial judge is free to believe or disbelieve
            Peavy's testimony. But without specific, articulable facts,
            a court has no means in assessing whether this opinion
            was objectively reasonable.

            When a trial court is not presented with such facts, the
            detention cannot be “subjected to the more detached,
            neutral scrutiny of a judge who must evaluate the
            reasonableness of a particular search or seizure in light of
            the particular circumstances.” And “when sucha stop is
            not based on objective criteria, the risk of arbitrary and
            abusive police practices exceeds tolerable limits.”
            Allowing a police officer's opinion to suffice in specific
            facts' stead eviscerates Terry's reasonable suspicion
            protection. If this Court were to hold as the dissent
            suggests, we would be removing the “reasonable” from
            reasonable suspicion. Therefore, we adhere to the
            principle that specific, articulable facts are required to
            provide a basis for finding reasonable suspicion. Mere
            opinions are ineffective substitutes for specific,
            articulable facts in a reasonable-suspicion analysis.” Id.,
            at 493 (emphasis added).

      Thus, Officer Aguilar’s assertion that appellant violated a city ordinance

when he accelerated from the traffic light is nothing more than a mere opinion not

supported by “specific, articulable facts in a reasonable-suspicion analysis.” The
                                         9
officer’s own testimony and the video introduced into evidence by the State did not

support the alleged acceleration.

       Additionally, there were no other factors which could have provided Officer

Aguilar with the “reasonable suspicion” upon which he could rely to detain

appellant for an intoxication investigation. Wearing shorts in a mild winter day

while riding a motorcycle does not satisfy the “reasonable-suspicion analysis” to

justify appellant’s detention for the intoxication investigation. Moreover, the

officer’s observation that appellant was agitated and fidgety came after he had

decided to initiate that investigation. Wearing shorts on a mild winter day,

combined with a subject’s agitation and fidgetiness, without more, are not

“specific, articulable facts” upon which to launch an intoxication investigation and

make a warrantless arrest.

       Under the Fourth Amendment, a warrantless arrest for an offense committed

in the officer’s presence is reasonable if the officer has probable cause. Amador v.

State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). In the context of a warrantless

arrest, probable cause exists “if, at the moment the arrest is made, the facts and

circumstances within the arresting officer’s knowledge and of which he has

reasonably trustworthy information are sufficient to warrant a prudent man in

believing that the person arrested committed or was committing an offense.” Id., at

878.

                                        10
      Officer Aguilar did not have any “reasonably trustworthy information” that

appellant was operating the motorcycle without a valid license; that he had violated

a city traffic ordinance when he accelerated from the light; or that he was

intoxicated on any substance. 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.”

Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 95, 157 L.Ed.2d 769 (2003).

      Thus, the shorts, agitation, and fidgetiness are subjective opinions of Officer

Aguilar that cannot be considered by this court. Whren v. United States, 517 U.S.

806, 813, 116 S.Ct. 1769, 151 L.Ed.2d 89 (1996). The court can only consider

whether Officer Aguilar had specific, articulable facts to warrant the initial traffic

stop that led to the detention, warrantless arrest, and subsequent search of

appellant. Ford, 158 S.W.3d at 493; Amador, 275 S.W.3d at 878.

      As demonstrated conclusively herein, Officer Aguilar did not have such

specific, articulable facts to warrant the initial traffic stop, and it was therefore

error for the trial court to deny the motion to suppress.

 6. ISSUE TWO: THERE WAS INSUFFICENT EVIDENCE TO SUPPORT
        A CONVICTION FOR DRIVING WHILE INTOXICATED

A. Summary

      The evidence presented by the State at the bench trial was both legally and

factually insufficient. The only evidence of guilt presented by the State was
                                          11
through the testimony of Officer Aguilar. Thus, if the officer’s mere opinions

about appellant’s drug intoxication lacked “specific, articulable facts,” then the

evidence was legally insufficient to sustain appellant’s conviction.

      There was no physical evidence of either alcohol or drug intoxication. There

was no breath sample, blood draw, or forensic analysis of the suspected marijuana.

Thus, the evidence was factually insufficient to sustain appellant’s conviction.

B. Discussion

      Both legal and factual claims of insufficiency of evidence involve the same

standard of review. Brooks v. State, 323 S.W.3d 912, 926 (Tex. Crim. App. 2010).

The State’s evidence of guilt consisted solely of Officer Aguilar’s “opinions,” not

any specific, articulable facts.

      Standard traffic stops in Texas that lead to DWI suspicion and/or

determinations allows detaining officers to run a criminal background check to

determine if the suspected DWI driver has prior DWI convictions. TEX. TRANSP.

CODE § 724.012(b)(3)(B). If the criminal background check reveals two or more

DWI convictions, the law today is that a breath or blood sample is obtainable after

securing a search warrant. Douds v. State, 434 S.W.3d 842 (Tex. App—Houston

[14th Dist.] 2014).

      First, the State did not offer any evidence as to whether Officer Aguilar

conducted a TEX. TRANSP. CODE § 724.012(b)(3)(B) background check; and,

                                         12
second, the State did not offer any evidence as to why the officer did not seek a

mandatory blood draw.

      Furthermore, Appellant’s performance of the SFST tests are irrelevant

inasmuch as Officer Aguilar stated he did not believe appellant was intoxicated by

alcohol. The officer believed appellant’s purported intoxication was caused by

marijuana yet he did not perform the DRE. Instead, he made this intoxication

determination based solely on the fact that appellant wore shorts on a mild winter

day while driving a motorcycle and that he exhibited agitation and fidgetiness

during the investigation period.

      This Court has followed the lead of the Texas Court of Criminal Appeals

that, in general, an officer’s testimony that a person was intoxicated provides

sufficient evidence to establish the intoxication element of the offense of DWI.

Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Condarco v. State,

2013 Tex. App. LEXIS 10741 (Tex. App.—Austin, Aug. 27, 2013). However, the

testifying officer must present some evidence of intoxication: lacking normal use

of mental or physical faculties; and/or signs of impairment such as slurred speech,

bloodshot eyes, odor of alcohol/drugs, unsteady balance, or staggering gait.

Condarco, at * 17. Officer Aguilar did not present any such evidence, except for

the unsteadiness appellant exhibited during the “one-leg stand” test.




                                         13
      It should be noted by the Court that the officer’s testimony in Annis was

corroborated by a positive breath test. There was no breath test or blood draw

evidence in appellant’s case. The only evidence indicating alcohol intoxication was

appellant’s poor performance on the “one-leg stand” component of the SFST, but

this showing had nothing to do with Officer Aguilar’s opinion that appellant was

intoxicated by marijuana.

      Thus, given the “totality of the circumstances” involved in this case, it

cannot be said that the judgment of guilt rendered by the trial court was a rational

decision. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

                                     PRAYER

      Wherefore, premises considered, appellant respectfully requests this Court to

vacate appellant’s conviction and enter a judgment of acquittal or remand the case

back to the trial court with instruction that a new trial be conducted. Additionally,

appellant prays for such other and further relief to which he may be justly entitled

at law or in equity.

      This 14th day of September, 2015.




                                         14
Respectfully submitted,

                                            By: /s/ John T Floyd
                                            John Thomas Floyd III
                                            Texas Bar No. 00790700
                                            By: /s/ Christopher M. Choate
                                            Christopher M. Choate
                                            Texas Bar No. 24045655
                                            Principal Office
                                            The Kirby Mansion
                                            2000 Smith Street
                                            Houston, TX 77002
                                            Tel: 713-224-0101
                                            Fax: 713-237-1511
                                            Attorneys for Appellant


                        CERTIFICATE OF SERVICE
      I hereby certify that a copy of this appellate brief has been served upon

Richard Villarreal, SBOT 00797602, Assistant District Attorney, Tom Green

County, 124 West Beauregard, San Angelo, Texas 76903 on this 14th day of

September, 2015 by placing same in the United States Postal System, by facsimile

transmission to 325-658-6831, or by any other valid method of service.

/s/ John T Floyd
/s/ Christopher M. Choate

                     CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i), this Appellant’s Brief comprises 3,845 words,
as calculated by Microsoft Word for Windows 2010.

/s/ John T. Floyd
/s/ Christopher M. Choate



                                       15
