                                                                                          ACCEPTED
                                                                                      03-14-00816-CR
                                                                                              5497344
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                  6/1/2015 4:30:40 PM
                                                                                    JEFFREY D. KYLE
                            No. 03-14-00816-CR                                                 CLERK




                                                                      FILED IN
                      In the Third Court of Appeals            3rd COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                              Austin, Texas                    6/1/2015 4:30:40 PM
                                                                 JEFFREY D. KYLE
                                                                       Clerk


                         ARIANA OLIVEIRA,
                                             Appellant,

                                        v.

                       THE STATE OF TEXAS,
                                             Appellee.


               On appeal from the County Court-at-Law Number Eight,
                                 Travis County, Texas
                          Trial Cause No. C-1-CR-14-209113




                             STATE’S BRIEF

                                     DAVID A. ESCAMILLA
                                     TRAVIS COUNTY ATTORNEY

                                     GISELLE HORTON
                                     ASSISTANT TRAVIS COUNTY ATTORNEY
                                     State Bar Number 10018000
                                     Post Office Box 1748
                                     Austin, Texas 78767
                                     Telephone: (512) 854-9415
                                     TCAppellate@traviscountytx.gov

June 1, 2015                         ATTORNEYS FOR THE STATE OF TEXAS

                      ORAL ARGUMENT IS NOT REQUESTED
                                          TABLE OF CONTENTS

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the State’s Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

         Reply Point: The trial court did not err in refusing to suppress the
         State’s evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

         1.        The trial court properly refused to automatically equate a
                   police car’s activated overhead lights with a detention.. . . . . . 5

                   1.a.      Oliveira ignores the trial court’s supported findings and
                             misapplies the totality test... . . . . . . . . . . . . . . . . . . . . . . . . . 6

                   1.b.      Oliveira’s proposed bright-line rule regarding activated
                             overhead patrol-car lights ignores precedent.. . . . . . . . . . 7

         2.        Even if the officer had detained Oliveira when the
                   overhead lights went on, he had reasonable suspicion of
                   criminal activity... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                              i
                                       INDEX OF AUTHORITIES

Statutes                                                                                                       Page
TEX. PENAL CODE § 49.04
      (West Supp. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TEX. TRANSP. CODE § 545.038
      (West 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cases
Crain v. State, 315 S.W.3d 43
       (Tex. Crim. App. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Florida v. Bostick, 501 U.S. 429
       (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9
Franks v. State, 241 S.W.3d 135
       (Tex. App.—Austin 2007, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Michigan v. Chesternut, 486 U.S. 567
       (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Castleberry, 332 S.W.3d 460
       (Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State v. Garcia-Cantu, 253 S.W.3d 236
       (Tex. Crim. App. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7
State v. Mendoza, 365 S.W.3d 666
       (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Wade v. State, 422 S.W.3d 661
       (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                             ii
                         STATEMENT OF THE CASE

      Oliveira was charged by information with the Class B misdemeanor

                                1
of driving while intoxicated, alleged to have been committed on June 6,

2014. CR 17, 92, 96. After the trial court overruled her pre-trial suppression

motion, Oliveira pleaded no contest to the charge. 3 RR 4; CR 91. On

December 12, 2014, the trial court sentenced her to 180 days’ confinement

and a $2,000 fine, but suspended imposition of this sentence and placed

Oliveira on community supervision for two years. CR 92, 94. Oliveira gave

written notice of appeal on December 29, 2014. CR 104.

                              ISSUE PRESENTED

      Does a police officer’s turning on overhead lights after pulling up

behind a motorist who is at a standstill on the roadside shoulder late at

night automatically constitute a detention, and therefore require

reasonable suspicion of criminal activity?




  1
     “A person commits an offense if the person is intoxicated while operating a
motor vehicle in a public place[. . .] . [A]n offense under this section is a class B
misdemeanor[. . .] .” TEX. PENAL CODE § 49.04(a)-(b) (West Supp. 2014).
                                          1
                              BACKGROUND

      At about 1:45 in the morning, Austin police Officer Bryce Sakamoto

saw a car unsafely stopped on a dirt embankment on Old San Antonio

Road, just off of the southbound I-35 frontage road. 2 RR 7, 14; CR 85 (fact

finding #1); 4 RR Defense Exhibit #1 @ 1:44:11. The car could have safely

pulled over in a nearby, well lit parking lot. 2 RR 22, 24.

      Intending to “investigate what the reason was for her to be not on the

roadway and also to check welfare, make sure everything was okay,”

Sakamoto pulled up behind the car, stopped, and turned on his overhead

lights. 2 RR 23. The trial court found that Sakamoto turned on the overhead

lights for safety purposes, and to let backup officers know where he was. 2

RR 23, 26–27; CR 85, 86 (fact findings); 4 RR Defense Exhibit #1 @ 1:44:54.

Although Sakamoto testified that he had “detained” the motorist when he

pulled up behind the car. He also testified that, if the car had taken off, he

would not have pursued it. CR 86 (fact finding); 2 RR 25.

      Sakamoto got out and approached Oliveira, the driver and sole

occupant. He asked her, “What’s up?” CR 85; 2 RR 7, 24; 4 RR Defense
                                       2
Exhibit #1 @ 1:44:54. The car’s engine was running and the headlights were

on. 2 RR 7. Oliveira’s speech was so slurred that Sakamoto thought she

was wearing braces. 2 RR 19, 25; 4 RR Defense Exhibit #1 @ 1:35:38. He

immediately smelled alcohol on Oliveira, and saw glassy, bloodshot eyes.

CR 85 (fact finding); 4 RR Defense Exhibit #1 @ 1:45:50. He suspected

intoxication. 2 RR 20; CR 85 (fact finding). Another police officer then took

over to investigate intoxication. 2 RR 20; 4 RR Defense Exhibit #1 @ 1:49:34.

The details of this investigation were not developed at the suppression

hearing because defense counsel litigated only the initial detention’s

                     2
lawfulness. 2 RR 26.

      After hearing evidence, the trial court concluded that the initial

interaction between Officer Sakamoto and Oliveira was an encounter, and

that Oliveira was not detained before police “observed substantial

indications of intoxication.” CR 86.




  2
      DEFENSE COUNSEL: We’re just dealing with whether there was reasonable
      suspicion to stop Ms. Oliveira, and I believe that ends when the officer
      approaches her vehicle.
                                       3
                SUMMARY OF THE STATE’S ARGUMENT

      Just as handcuffing does not always mean arrest, so overhead lights

do not always mean detention. No bright-line rules exist for evaluating

whether, or when, an encounter becomes a detention. The records supports

the trial court’s finding and conclusion that Oliveira was not detained until

sometime after police had detected impairment symptoms. Oliveira

misapplies the standard of review, which requires “almost total” deference

to the trial court’s supported findings. She also misapplies the totality test

by focusing on a single factor: the overhead lights.

      Even if the officer had detained Oliveira when he initially pulled in

behind her and activated the overhead lights, the trial court could have

concluded that the detention was lawful; Oliveira’s unnecessarily and

unsafely driving and stopping on the roadway shoulder constituted a

traffic violation.




                                       4
                                ARGUMENT

      Reply Point: The trial court did not err in refusing to suppress
      the State’s evidence.

      1.    The trial court properly refused to automatically equate a
            police car’s activated overhead lights with a detention.

      Oliveira’s contention that activated police-car overhead lights

automatically constitute a detention violates the all-things-considered

character of the totality-of-the-circumstances test. Texas courts have

categorically rejected the bright-line rule for this reason. Instead, each

citizen-police encounter must be evaluated on its own terms; there are no

per se rules. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App.

2008).

      The test is necessarily imprecise, because it is designed to
      assess the coercive effect of police conduct, taken as a whole,
      rather than to focus on particular details of that conduct in
      isolation. Moreover, what constitutes a restraint on liberty
      prompting a person to conclude that he is not free to “leave”
      will vary, not only with the particular police conduct at issue,
      but also with the setting in which the conduct occurs.

Id. at 244 (quoting Michigan v. Chesternut, 486 U.S. 567, 573 (1988)).



                                       5
      1.a.   Oliveira ignores the trial court’s supported findings and
             misapplies the totality test.

      Oliveira ignores the trial court’s written findings, which the record

supports. In reviewing the trial court’s conclusion that the initial

interaction constituted an encounter, the Court must consider not only the

totality of the circumstances; it must consider that totality “in the light

most favorable to the trial judge’s implicit or explicit factual findings.” Id.

at 244; see also Florida v. Bostick, 501 U.S. 429, 437 (1991).

      The trial court found and concluded that the police officer activated

his patrol car’s overhead lights for safety purposes as he pulled up behind

the stopped car, intending to check welfare. CR 85–86. The trial court also

found that, if the driver had taken off, the officer would not have pursued

her. CR 86. The court concluded that the initial interaction between the

officer and Oliveira was an encounter, and that Oliveira was not detained

before police “observed substantial indications of intoxication.” CR 86.

Oliveira is therefore asking the Court to misapply the standard of review

by similarly ignoring the court’s findings, which would encroach upon the


                                         6
trial court’s exclusive province. But appellate courts defer to trial-court fact

findings precisely because trial courts are in a better position to make

them. State v. Mendoza, 365 S.W.3d 666, 669 (Tex. Crim. App. 2012).

      1.b. Oliveira’s proposed bright-line rule regarding activated
           overhead patrol-car lights ignores precedent.

      The Court of Criminal Appeals and the Third Court have held that

merely turning on overhead police car lights while behind a defendant’s

vehicle does not automatically constitute a detention. Garcia-Cantu, 253

S.W.3d at 244; Franks v. State, 241 S.W.3d 135, 142 (Tex. App.—Austin 2007,

pet. ref’d); Iselt v. State, No. 03-12-00120-CR, 2014 Tex. App. LEXIS 4776

(Tex. App.— Austin May 2, 2014, pet. ref’d) (mem. op., not designated for

publication). There are two reasons for this. First, such a bright-line rule

would deter law enforcement officers from activating their headlights for

safety purposes, which in turn would unnecessarily put them and others in

harm’s way. Garcia-Cantu, 253 S.W.3d at 244. Second, as mentioned earlier,

such a rule eliminates from consideration all other relevant factors

demanded by a totality-of-the-circumstances analysis. Id.


                                       7
      In Franks, for instance, the officer pulled in behind the defendant’s

vehicle and activated his overhead lights to illuminate a dark rest area.

Franks, 241 S.W.3d at 139. The Third Court reasoned that, despite the

officer’s overhead lights, the initial interaction was an encounter, requiring

no justification, because:

•     The officer did not position his car in a way that “prevented
      appellant from leaving the rest area by simply driving forward[.]” Id.

•     “[A]ppellant does not allege that the patrol car’s siren was
      activated[.]” Id.

•     Appellant did not contend that “she received any command over the
      loudspeaker[.]” Id.

•     Appellant did not contend that the officer “told her to turn off her
      car’s engine.”

      Like Franks, the facts of Oliveira’s case show no signs of a detention

when the officer activated his overhead lights. Officer Sakamoto did not

position his car in a way that would prevent Oliveira from leaving. 4 RR

State’s Exhibit #1 @ 1:41:14. He did not activate his siren, give any

commands over the loudspeaker, or command Oliveira to do anything.

Rather, he simply turned on his overhead lights, walked up to Oliveira’s

                                       8
driver’s side window, and inquired, “What’s up?” 4 RR State’s Exhibit #1 @

1:45:02. This was evidence of concern, not any sort of command. Eliciting

identity information, for instance, does not create a detention. State v.

Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011). “What’s up?”

likewise does not convey “a message that compliance with the officer’s

request was required.” See Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim.

App. 2010).

      The intoxicated Oliveira may well have had a sinking feeling when

she saw from the activated overhead lights that a law enforcement officer

had pulled up behind her, but the Fourth Amendment does not protect her

from discomfort. And, the reasonable, innocent person stopped on the

shoulder in a somewhat remote and isolated area late at night probably

would have been grateful to see that it was a police officer who had

stopped behind her. The reasonable, innocent person also would have “felt

free to decline the officer’s request or otherwise terminate” the

interaction— the touchstone of an encounter. Bostick, 501 U.S. at 434.



                                       9
      2.       Even if the officer had detained Oliveira when the overhead
               lights went on, he had reasonable suspicion of criminal
               activity.

      Even if defense counsel were correct in the assertion that overhead

lights automatically constitute an investigative detention, Officer Sakamoto

had reasonable suspicion that Oliveira had committed a traffic offense

when he saw her car on the improved shoulder. TEX. TRANSP. CODE §

545.038 (West 2011) (“An operator may drive on an improved shoulder to

the right of the main traveled portion of a roadway if that operation is

necessary and may be done safely, but only . . . to stop, stand or

park[.]”). Sakamoto testified that the car’s position on the shoulder was

unsafe, and that she could have parked in a nearby, well lit nearby

commercial lot. 2 RR 22, 24. Thus, it was neither safe nor necessary for

Oliveira to stop on the improved shoulder, and the trial court could have

denied the requested suppression relief on that basis. Wade v. State, 422

S.W.3d 661, 667 (Tex. Crim. App. 2013) (reviewing court will uphold trial

court’s ruling if it is correct on any theory of law reasonably supported by

the record).
                                      10
                                  PRAYER

      For these reasons, the Travis County Attorney, on behalf of the State

of Texas, asks this Court to overrule the point of error and affirm the

judgment of conviction for driving while intoxicated.

                              Respectfully submitted,

                              DAVID A. ESCAMILLA
                              TRAVIS COUNTY ATTORNEY




                              Giselle Horton
                              Assistant Travis County Attorney
                              State Bar Number 10018000
                              Post Office Box 1748
                              Austin, Texas 78767
                              Telephone: (512) 854-9415
                              TCAppellate@traviscountytx.gov

                              ATTORNEYS FOR THE STATE OF TEXAS




                                      11
                     CERTIFICATE OF COMPLIANCE

      Relying on Corel WordPerfect’s word-count function, I certify that

this document complies with the word-count limitations of TEX. R. APP. P.

9.4. The document contains 2241 words.




                              Giselle Horton



                        CERTIFICATE OF SERVICE

      I certify that I have sent a complete and legible copy of this State's

Brief via electronic transmission to Ms. Oliveira’s attorney of record, Mr.

Joshua Saegert, at saegertlaw@yahoo.com, on or before June 8, 2015.




                              Giselle Horton
                              Assistant Travis County Attorney




                                       12
