                          NUMBER 13-13-00085-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                     Appellant,


                                         v.


T.W. LEE NELSON,                                                        Appellee.


                   On appeal from the 28th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
             Before Justices Benavides, Perkes and Longoria
               Memorandum Opinion by Justice Longoria
      This is an interlocutory appeal by the State challenging the trial court’s order

suppressing all evidence and testimony arising out of the interaction between Corpus

Christi Police Officer David Saldana (Officer Saldana) and appellee T.W. Lee Nelson

(Nelson). We affirm.
                                                 I. BACKGROUND

       The State indicted Nelson for assault on a public servant and attempting to take a

weapon from a police officer. See TEX. PENAL CODE ANN. §§ 22.01(a), (b)(1), 38.14(b)

(West 2011). Nelson filed a motion asking the trial court to suppress the entire encounter

between Nelson and Officer Saldana, arguing that Officer Saldana unlawfully detained

Nelson from the beginning of the encounter in violation of the Fourth Amendment to the

United States Constitution.             See U.S. CONST. amend. IV. The trial court held an

evidentiary hearing on Nelson’s motion. At the hearing, Nelson and Officer Saldana

testified regarding the encounter. Nelson and Officer Saldana’s testimony about the

interaction differed significantly; we will discuss each separately.

   A. Testimony of Officer Saldana

       Officer Saldana testified that he was driving across a bridge near the Corpus

Christi campus of Texas A&M University at around 1:00 a.m. when he observed Nelson

standing still on a sidewalk, facing out towards the water. Officer Saldana first thought

that Nelson was fishing, but he did not stop because he was on his way to assist another

officer.1 Several minutes later, Officer Saldana learned that his assistance was no longer

needed, and he returned to where he had seen Nelson. Officer Saldana testified that

even though several minutes had passed, Nelson “was standing exactly where he was

before.” Officer Saldana told the court that he thought it was strange because Nelson

“hadn’t moved at all” and because “most people shift legs, they do something a little bit

different” after standing in one place for several minutes. Officer Saldana testified that he

pulled his car up to the sidewalk, rolled down the window and called out, “hey man,


       1   Saldana testified that “[y]ou can’t fish from that bridge, there are signs posted.”


                                                        2
everything ok?” Officer Saldana told the court that he had “full intention of making sure

this guy was okay and keep on driving to my next call,” which was already coming in over

his radio.   Officer Saldana related that Nelson “slowly turned around and started

approaching my unit. He started crouching and he started yelling these—there is no other

way to say it other than they were not normal sayings.” Officer Saldana did not remember

Nelson’s statements “exactly, but one of them was like, you know, do you want to press

me, and something about the oppressors.”

       Officer Saldana testified that did not perceive Nelson as a threat at the time, but

he thought “something wasn’t right with [Nelson].” Officer Saldana testified that he

thought that Nelson was “either intoxicated[,] . . . on drugs, or he’s a mental health

patient,” and that Nelson might be “a danger to himself and others” as a result. Officer

Saldana stepped up onto the sidewalk and said “hey, man, come on up here and talk to

me up here. What’s going on with you?” Officer Saldana stated that Nelson was still

“screaming at the top of his lungs” about “assassins and oppressors,” how Officer

Saldana “wasn’t going to murder him,” and that Nelson was going to “kick [Officer

Saldana’s] butt.” Nelson then took off his hat and backpack and placed three bags that

he had been carrying onto the ground. Officer Saldana testified that he viewed this

behavior as a threat because “if you have grown up in South Texas, you know when

people start removing clothing, the fight is about to be on.” Officer Saldana testified that

he told Nelson to come sit in the back seat of the police car and that Nelson started to

comply until Officer Saldana attempted to place handcuffs on him. According to Officer

Saldana, Nelson then tried to punch him, but he “didn’t connect.” Nelson crouched, still

“ranting and raving” and Officer Saldana “put hands” on Nelson again to “take him down



                                             3
on the ground” in order to prevent him from “springing” at him. According to Officer

Saldana, Nelson punched him again, and connected with Officer Saldana’s ear.

Testimony of Senior Officer Curtis Volling later established that Officer Saldana used a

taser to subdue Nelson.2

    B. Nelson’s Testimony

        Nelson testified that on the night of the incident he was walking home from a coffee

shop and that he was never standing still on the bridge.                     He denied that he was

intoxicated, but he admitted that he had drunk two beers earlier that evening. Nelson

stated that he was walking “directly towards” his home when a police car pulled up beside

him. Officer Saldana exited the car and asked Nelson if he was walking home. Nelson

responded that he was returning home and twice repeated “what are you going to do

about it?” Nelson testified that Officer Saldana then grabbed Nelson’s wrist and Nelson

said “no.” In his testimony, Nelson reiterated that he was walking home, not in any sort

of distress, and that there was no reason anyone would be concerned about him.

    C. Proceedings on the Motion to Suppress

        Nelson argued in his motion to suppress that he was unlawfully detained and

arrested without probable cause, a warrant, or other lawful authority in violation of his

rights under the Fourth Amendment. See U.S. CONST. amend. IV. The State argued two

theories of law in opposition to Nelson’s motion: (1) that the encounter between Nelson

and Officer Saldana was a consensual encounter and not a detention up until the time




          2 Officer Volling did not witness the interaction between Nelson and Officer Saldana but arrived

later, after Officer Saldana used a taser to subdue Nelson. He interviewed two women who had driven by
and witnessed part of the encounter. Over Nelson’s objection, he testified regarding what they told him that
they had witnessed. Nelson did not present an issue renewing his objection to Officer Volling’s testimony
on appeal.

                                                     4
Nelson threatened to assault Officer Saldana, at which time Officer Saldana had

reasonable suspicion to detain him, and (2) that even if Officer Saldana had detained

Nelson from the outset of the encounter, the seizure was lawful as a valid community

caretaking stop.

        The trial court granted Nelson’s motion to suppress and entered findings of fact

and conclusions of law at the State’s request. The original findings and conclusions are

as follows:

                                                 Findings of Fact

        1. The Court finds credible the testimony of [Nelson] that he was walking,
           not standing still on a bridge, on the night of September 1, 2012. The
           Court finds credible the testimony of [Nelson] that he was not vomiting
           or lying down at the time of contact with Officer Saldana, on the night of
           September 1, 2012, and that there was no evidence of distress
           exhibited.

        2. The Court finds credible the testimony of [Nelson] and Officer David
           Saldana that the location was on Ennis Joslin Road near the Texas A&M
           University – Corpus Christi campus where it is not unusual for students
           to to be walking. The Court finds credible the testimony of [Nelson] that
           he was a student at Texas A&M University – Corpus Christi.

        3. The Court finds credible the testimony of Officer David Saldana and
           [Nelson], that [Nelson] was alone and did not need assistance and was
           not in any danger.[3]

        4. The Court finds credible the testimony of Officer David Saldana
           concerning the actions of [Nelson], after the officer stopped his vehicle
           and questioned [Nelson], on the night of September 1, 2012.

        5. The Court finds, based on the totality of the evidence presented at the
           pre-trial hearing, that the entire interaction between [Nelson] and Officer
           David Saldana was not consensual. The Court finds credible the
           testimony of [Nelson] that he was walking home and did not show signs
           of distress when the officer stopped to ask him a question. The court
           finds that [Nelson] was credible, and he was detained at the time Officer
           David Saldana stopped his patrol vehicle.

        3We note for the sake of clarity that Officer Saldana did not actually affirmatively testify that Nelson
was not in distress.

                                                       5
        6. The Court finds that Officer David Saldana’s testimony regarding the
           stop and subsequent observations to be credible, but that all
           conversations, statements and actions occurred during an illegal
           detention. The Court further finds that Officer David Saldana acted
           unreasonably by stopping his patrol vehicle.

                                              Conclusions of Law

        1. The Court concludes that Officer David Saldana’s interaction with
           Nelson was not consensual.

        2. The Court concludes that Officer David Saldana’s stop was for a
           community caretaking function.

        3. The Court concludes that Officer Saldana’s observations prior to the
           detention did not meet any of the four factors necessary for a proper
           community caretaking stop.

        4. The Court concludes that Officer Saldana acted unreasonably and
           violated [Nelson’s] constitutional right by stopping his patrol vehicle and
           questioning [Nelson].

        5. The Court concludes that the actions of [Nelson], statements made by
           [Nelson], and any other evidence in this case were gained through the
           unconstitutional acts of Officer David Saldana during an illegal seizure,
           and therefore all such evidence is to be suppressed.

        The State filed an interlocutory appeal in this Court. See TEX. CODE CRIM. PROC.

ANN. art. 44.01(a)(5) (West Supp. 2011). Following oral argument, we abated the case

for the trial court to make supplemental findings and conclusions clarifying the basis for

its ruling. See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). The trial

court entered the following supplemental findings of fact and conclusions of law:

                                    Supplemental Findings of Fact

        1. The Court finds credible Officer David [Saldana]’s[4] testimony that it was
           around 1:00 a.m. and was dark at the time.

        2. The Court finds credible [Nelson’s] testimony that he was walking home

        4    The supplemental findings and conclusions occasionally refer to Officer Saldana erroneously as
“Salinas.”

                                                      6
          at the time of the encounter and was not in any distress.

      3. The Court finds Officer Saldana’s testimony regarding his justification for
         exercising his community care-taking authority with Nelson is not
         credible.

      4. The Court finds Officer Saldana pulled up beside Nelson and called
         directly to him, expecting him to stop and respond.

      5. The Court finds that once Nelson yielded to Saldana’s show of authority
         by stopping and approaching the vehicle in response to Saldana,
         Saldana then got out of the marked police car and continued the
         detention by physically restraining Nelson.

                         Supplemental Conclusions of Law

      1. The Court concludes that Officer [Saldana] did not have reasonable
         suspicion to stop his patrol car and question Nelson, nor was Nelson in
         distress at the time such that Officer [Saldana] could justify his actions
         as community caretaking.

      2. The Court concludes Officer Saldana’s actions, including stopping his
         car besides Nelson and calling out directly to Nelson, constituted a show
         of authority that caused Nelson to feel compelled to stop and not free to
         leave.

      3. Because Nelson stopped only because he felt compelled to stop by
         Saldana’s show of authority, the Court concludes the encounter was not
         consensual, but a detention.

      4. The Court concludes that any reasonable person in Nelson’s position,
         alone on a dark street faced with a marked patrol unit and a command
         directed at him, would feel he had no choice but to yield to the officer
         and therefore, was not free to leave.

      5. The Court concludes that Nelson was illegally detained at the time
         Officer [Saldana] stopped his patrol unit and questioned him, and that
         any evidence developed thereafter concerning completed crimes should
         be suppressed.

                                       II. DISCUSSION

      By four issues, which we have reordered, the State argues that: (1) the initial

interaction between Officer Saldana and Nelson was a consensual encounter until Officer



                                            7
Saldana had reasonable suspicion to detain Nelson because Nelson threatened to

assault him and, according to Officer Saldana, Nelson did, in fact, assault him; (2) even

if the initial interaction was a seizure, it was valid under the community caretaking

exception; (3) even if there was a seizure, the seizure was not complete because Nelson

was not forced to comply until after Nelson assaulted Officer Saldana; and (4) Nelson’s

commission of the independent crimes of assault and attempting to take Officer Saldana’s

weapon were not causally connected to the seizure and therefore not subject to

suppression.

   A. Standard of Review

       We review a trial court’s ruling on a motion to suppress under a bifurcated standard

of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We will

affirm the trial court’s decision on the motion to suppress if it is correct on any theory of

law that is applicable to the case. Id. We view all of the evidence in the light most

favorable to the trial court’s ruling. State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim.

App. 2011). We give almost total deference to the trial court’s explicit findings of fact as

long as the record supports them. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997)). We afford the “party that prevailed in the trial court . . . the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from the

evidence.” State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). “We

afford the same amount of deference to the trial judge’s ruling on mixed questions of law

and fact, if those rulings turned on an evaluation of credibility and demeanor.”

Castleberry, 332 S.W.3d at 465–66. However, we review de novo “pure questions of law

and mixed questions of fact that do not depend on credibility determinations.” Martinez



                                             8
v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011) (citing Guzman, 955 S.W.2d at

89). Whether the facts surrounding a particular police-citizen interaction constituted a

consensual encounter or a detention is subject to de novo review because it requires an

application of the law to the facts of the case. Castleberry, 332 S.W.3d at 466; Garcia-

Cantu, 253 S.W.3d at 241.

   B. Consensual Encounter

       The State first argues that the trial court erred in granting the motion to suppress

because the interaction between Officer Saldana and Nelson was a consensual

encounter until Officer Saldana developed reasonable suspicion for a detention when

Nelson threatened to assault Officer Saldana by stating, “I’m gonna kick your butt.”

       1. Applicable Law

       The court of criminal appeals has recognized three general categories of police-

citizen encounters: “(1) consensual encounters, which require no objective justification;

(2) investigatory detentions, which require reasonable suspicion; and (3) arrests, which

require probable cause.” Castleberry, 332 S.W.3d at 466 (footnotes omitted). The United

States Supreme Court has held that “a seizure does not occur simply because a police

officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S.

429, 434 (1991). “An officer is just as free as anyone to stop and question a fellow

citizen[,] . . . [a]nd a citizen is free to terminate a consensual encounter at will.”

Castleberry, 332 S.W.3d at 466 (footnotes omitted). So long as a reasonable person

would feel free “to disregard the police and go about his business[,] . . . the encounter is

consensual and no reasonable suspicion is required.” Bostick, 501 U.S. at 434. But when

an officer restrains a citizen’s liberty through physical force or a show of authority, the



                                             9
encounter is no longer consensual and becomes an investigative detention that requires

reasonable suspicion. Castleberry, 332 S.W.3d at 466. There is no bright line rule for

determining when an encounter turns into a seizure; courts must look to the totality of the

circumstances. California v. Hodari D., 499 U.S. 621, 627–28 (1991); Castleberry, 332

S.W.3d at 466–67. The court of criminal appeals has explained as follows:

       When the court is conducting its determination of whether the interaction
       constituted an encounter or a detention, the court focuses on whether the
       officer conveyed a message that compliance with the officer's request was
       required. The question is whether a reasonable person in the citizen's
       position would have felt free to decline the officer's requests or otherwise
       terminate the encounter.

Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010) (footnotes omitted). “The time,

place, and surrounding circumstances must be taken into account, but the officer’s

conduct is the most important factor” in analyzing whether an interaction is a consensual

encounter or a fourth amendment seizure. Castleberry, 332 S.W.3d at 467. Some

examples of circumstances that could indicate a seizure include:          “the threatening

presence of several officers, the display of a weapon by an officer, some physical touching

of the person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer's request might be compelled.” Crain, 315 S.W.3d at 49–50

(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)); see Garcia-Cantu, 253

S.W.3d at 243 (“At bottom, the issue is whether the surroundings and the words or actions

of the officer and his associates communicate the message of ‘We Who Must Be

Obeyed.’”).

       Nelson, as the moving party on the motion to suppress, had the initial burden of

proving that a detention occurred. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.

App. 2005). Once Nelson satisfied this burden by showing that a detention occurred, the

                                            10
burden shifted to the State to establish the reasonableness of the detention. See id.

       2. Analysis

       The State argues that the interaction between Officer Saldana and Nelson was a

consensual encounter until Nelson threatened to assault Officer Saldana, at which time

Officer Saldana had reasonable suspicion to detain him. The State’s argument wholly

adopts the version of events described by Officer Saldana in his testimony, but the trial

court found Nelson’s version of events to be more credible than Officer Saldana’s. In its

original findings of fact and conclusions of law, the trial court accepted Nelson’s testimony

that he was walking home and rejected Officer Saldana’s testimony that Nelson was

standing still on the bridge. In its supplemental findings and conclusions, the trial court

clarified that it found that Officer Saldana stopped his car and called out a “command” to

Nelson, and that Nelson yielded to Officer Saldana’s show of authority by stopping and

then approaching the vehicle. At that time, Officer Saldana “got out of the marked police

car and continued the detention by physically restraining Nelson.”

       The State argues that the facts of this case are akin to those in Castleberry, in

which a police officer approached two men who were walking at 3:00 a.m. behind a closed

business in an area that was well-lit but deserted. 332 S.W.3d at 462. The officer

approached them, asked to see identification, and inquired what they were doing. Id.

When Castleberry reached for his waistband, the officer instructed Castleberry to put his

hands above his head and conducted a Terry frisk for weapons. Id. at 463 (citing Terry

v. Ohio, 392 U.S. 1, 30 (1968)). The court of criminal appeals concluded that until the

time the officer started the Terry frisk, the interaction was consensual because the officer

was free to approach and question the two men. Id. at 468.



                                             11
        By contrast, in Crain, a police officer spotted the defendant walking across another

person’s yard at 12:30 a.m. 315 S.W.3d at 46. The officer shined his patrol car’s spotlight

in the defendant’s direction, rolled down the window of his vehicle, and called out: “come

over here and talk to me.” Id. at 51. The Crain court held that the act of shining the car’s

spotlight in the defendant’s direction coupled with the “request-that-sounded-like-an-

order” effectuated a detention because a reasonable person would not have felt free to

leave. Id. at 51–52 (citing Crain v. State, No. 07-08-0224-CR, 2009 WL 2365718, at *4

(Tex. App.—Amarillo July 31, 2009) (Quinn, C.J., dissenting), rev’d, 315 S.W.3d 43 (Tex.

Crim. App. 2010)).

        The State argues that this case is more akin to Castleberry than to Crain because

Officer Saldana only questioned if Nelson was “ok” and did not even ask for his

identification. But as we discussed above, the trial court did not find this version of events

to be credible.5 Instead, the trial court found that Officer Saldana called out to Nelson in

a way that made clear that Officer Saldana expected Nelson to stop and answer Officer

Saldana’s questions—i.e., “that compliance with the officer’s request was required.” Id.

at 49. The trial court further found that Nelson yielded to the display of authority by

stopping and approaching Officer Saldana’s vehicle, and then Officer Saldana exited his

vehicle and physically restrained Nelson. See id. at 49–50 (observing that “physical

touching of the person of the citizen” as well as the use of language or tone of voice that

indicates that compliance is required are factors to be considered in determining whether

a seizure occurred). Moreover, this interaction took place early in the morning on a dark

bridge. The court of criminal appeals has explained that: “[i]t is a reasonable inference


        5 We note that after we abated this appeal, the State submitted proposed findings of fact based on
Officer Saldana’s version of events, but the trial court declined to adopt those findings.

                                                   12
that the objectively reasonable person would feel freer to terminate or ignore a police

encounter in the middle of the day in a public place where other people are nearby than

he would when parked on a deserted, dead-end street at 4:00 a.m.” Garcia-Cantu, 253

S.W.3d at 245 n.42. Likewise, the trial court found that “any reasonable person in

Nelson’s position, alone on a dark street faced with a marked patrol unit and a command

directed at him, would feel he had no choice but to yield to the officer and, therefore, was

not free to leave.” Viewing the totality of the circumstances set forth by the trial court’s

findings of fact in the light most favorable to the trial court’s ruling, and giving Nelson as

the prevailing party the strongest legitimate view of the evidence, we agree with the trial

court and conclude that Officer Saldana seized Nelson within the meaning of the Fourth

Amendment at the beginning of the encounter. See Crain, 315 S.W.3d at 52; Garcia-

Cantu, 253 S.W.3d at 245 n.42. We overrule the State’s first issue.

   C. Community Caretaking Stop

       By its second issue, the State argues that even if Officer Saldana seized Nelson

at the beginning of the encounter, the seizure was justified as a valid community

caretaking stop.

       1. Applicable Law

       “Because a police officer's duties involve activities other than gathering evidence,

enforcing the law, or investigating crime, the Supreme Court has characterized a police

officer's job as encompassing a community caretaking function.” Corbin v. State, 85

S.W.3d 272, 276 (Tex. Crim. App. 2002) (citing Cady v. Dombrowski, 413 U.S. 433, 441

(1973)). As part of this function, an officer “may stop and assist an individual whom a

reasonable person, given the totality of the circumstances, would believe is in need of



                                             13
help.” Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012) (quoting Wright

v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999)). However, the community caretaking

function is “totally divorced from the detection, investigation, or acquisition of evidence

relating to the violation of a criminal statute.” Cady, 413 U.S. at 444. “A police officer

may not properly invoke his community caretaking function if he was motivated by a non-

community caretaking purpose.” Gonzales, 369 S.W.3d at 854 (citing Corbin, 85 S.W.3d

at 277). Furthermore, the doctrine is narrowly applicable to stops and searches of

vehicles, and “[o]nly in the most unusual circumstances will warrantless searches of

private, fixed property, or stops of persons located thereon, be justified under the

community caretaking function.” Wright, 7 S.W.3d at 152.

       Determination of whether an officer properly invoked this exception involves a two-

step inquiry. We ask: “(1) whether the officer was primarily motivated by a community-

caretaking purpose; and (2) whether the officer’s belief that the individual needs help was

reasonable.” Gonzales, 369 S.W.3d at 854–55. The first question, whether an officer

was primarily motivated by a community caretaking purpose at the time that he initiated

the encounter, is a mixed question of law and fact that turns on the trial court’s

determination of the credibility of the witnesses. See Corbin, 85 S.W.3d at 277; State v.

Woodard, 314 S.W.3d 86, 92 (Tex. App.—Fort Worth 2010), aff’d on other grounds, 341

S.W.3d 404 (Tex. Crim. App. 2011). Accordingly, we will defer to the trial court’s ruling

as long as the record supports it. See Castleberry, 332 S.W.3d at 465–66. The inquiry

under the second prong, whether an officer reasonably believed that a person was in

need of help, “is an objective one focusing on what the officer observed” and reasonable

inferences that the officer drew from those observations. Gonzales, 369 S.W.3d at 856.



                                            14
       2. Analysis

       The State argues that even if Officer Saldana did seize Nelson, Officer Saldana

could have reasonably believed that Nelson needed help because Nelson was standing

still on the bridge for an unusually long period of time and because of “[Nelson’s]

aggressive and incoherent speech” once Officer Saldana began the interaction. As a

preliminary matter, we note that Officer Saldana testified that Nelson’s “aggressive and

incoherent speech” occurred after the point in time in which we have already determined

that Officer Saldana effectuated a detention. Furthermore, the trial court found credible

Nelson’s testimony that he was walking on the bridge and rejected Officer Saldana’s

testimony that Nelson was standing still for a prolonged period of time. We are bound by

that determination. Castleberry, 332 S.W.3d at 465–66. In its supplemental findings, the

trial court found that Officer Saldana’s “justification for exercising his community-

caretaking authority with Nelson was not credible.” Because the record reflects evidence

that Nelson was not showing any signs of distress, we conclude that the trial court, acting

as factfinder and exclusive judge of the credibility of the testimony of the witnesses, had

a sufficient evidentiary basis to find that Officer Saldana was not primarily motivated by a

community caretaking purpose. See Woodard, 314 S.W.3d at 92 (deferring to the trial

court’s finding of fact that the defendant was not in distress because it was supported by

the record, and concluding that the officer therefore could not have been primarily

motivated by a community caretaking purpose). Accordingly, we overrule the State’s

second issue.

   D. Incomplete Seizure

       By its third issue, the State argues that even if Officer Saldana did attempt to seize



                                             15
Nelson, the seizure was incomplete because Nelson failed to submit to Officer Saldana’s

show of physical force. The general rule is that “when a suspect refuses to yield to

physical force . . . there is no seizure.” Castleberry, 332 S.W.3d at 469 (citing Hodari D,

499 U.S. at 626, 629). The State argues that even if Nelson was seized from the outset

of the encounter, the seizure was not complete because Nelson “fought back against

being handcuffed and restrained.” However, we have already concluded that Officer

Saldana detained Nelson by making a show of authority by calling him over to Officer

Saldana’s vehicle and that Nelson submitted by complying, thus making the seizure

complete before Officer Saldana even attempted to place physical restraints on Nelson.

See Crain, 315 S.W.3d at 49 (observing that a seizure is complete when an officer makes

a show of authority and the citizen submits to it). Furthermore, the record supports the

trial court’s finding that Nelson was detained by Officer Saldana’s show of authority and

that Officer Saldana only “continued the detention” by physically restraining him.

Accordingly, we overrule the State’s third issue.

   E. Attenuation of Taint and Subsequent Criminal Acts

       The State asserts by its fourth issue that the trial court erred in suppressing

evidence of the charged crimes because both were independent crimes that are not

subject to suppression under the exclusionary rule. See State v. Iduarte, 268 S.W.3d

544, 551–52 (Tex. Crim. App. 2008) (holding that the act of pointing a gun at an officer

after the officer illegally entered the appellant’s house was an independent crime that was

not subject to suppression). Nelson responds that the State waived this argument by

failing to make it at the suppression hearing.

       The court of criminal appeals has held that “in cases in which the State is the party



                                            16
appealing, the basic principle of appellate jurisprudence that points not argued at trial are

deemed to be waived applies equally to the State and the defense.” State v. Mercado,

972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (per curiam); see State v. Rhinehart, 333

S.W.3d 154, 162 (Tex. Crim. App. 2011) (observing that when the State is the appellant,

“ordinary rules of procedural default” prevent the State from making an argument that it

did not raise in the trial court even if it is an issue on which the defendant has the initial

burden of production). The reason for this is the familiar rule that appellate courts may

consider “alternative theories of law applicable to the facts of the case which support the

trial court’s decision,” but we may not “reverse a trial court’s decision on new theories of

law not previously presented to the trial court for its consideration.” Alford v. State, 400

S.W.3d 924, 929 (Tex. Crim. App. 2013) (quoting Mercado, 972 S.W.2d at 77).

       The State contends that it may nevertheless argue for the first time on appeal that

the evidence of the charged offenses are not subject to suppression because it was

Nelson’s burden to prove a causal connection between the alleged violation of his rights

and the evidence that he sought to suppress. See Pham v. State, 175 S.W.3d 767, 774

(Tex. Crim. App. 2005) (holding that the burden is on the party moving for suppression to

show a causal connection between the violation of his rights and the evidence to be

seized, and distinguishing that analysis from an attenuation-of-taint analysis). The State

points out that it is allowed to argue on appeal that a defendant did not have standing to

bring a suppression motion because standing is a “primary element” of a motion to

suppress. See State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App. 1996) (en banc).

The State reasons that the causal connection between the alleged violation of a

defendant’s rights and the evidence that he seeks to suppress is an equally important



                                             17
“primary element” of a Fourth Amendment claim, and therefore, the State should be

allowed to raise the issue of whether Nelson carried his burden for the first time on appeal.

However, the Mercado Court observed that the cases permitting the State to raise the

issue of standing for the first time on appeal whether or not it is the appellant “are limited

to the issue of standing,” Mercado, 972 S.W.2d at 78, and the court of criminal appeals

has not subsequently deviated from the rule that “ordinary rules of procedural default”

apply to the State when it is the party appealing. Rhinehart, 333 S.W.3d at 162.6 In

Rhinehart, for example, a majority of the court expressly stated that it disagreed “with the

broad assertion in the . . . dissenting opinion ‘that the State need not preserve a complaint

if the issue is one which the defendant had the burden to prove in order to obtain relief’”

in cases where the State is the appellant. Id. at 161–62. The court very recently

reaffirmed that “Mercado served to clarify that ordinary notions of procedural default apply

equally to all appellants, regardless of whether the appellant in a particular case is the

State or the defendant.” Alford, 400 S.W.3d at 929. Accordingly, because the State did

not present the argument in its fourth issue to the trial court, and does not present any

authority that it may make this argument for the first time on appeal, we hold that the State

has waived it. See id.; Rhinehart, 333 S.W.3d at 161–62; see also State v. Steelman, 93

S.W.3d 102, 106–07 (Tex. Crim. App. 2002) (following Mercado and holding that the State

could not argue for the first time on appeal that the search was actually conducted



        6   The Rhinehart court also noted that the cases permitting the State to raise the issue of standing
for the first time on appeal “primarily relied” on the United States Supreme Court’s decision in Rakas v.
Illinois, 439 U.S. 128 (1979) and not on Texas case law; additionally, “the prosecution in Rakas did raise
the standing issue in the trial court.” State v. Rhinehart, 333 S.W.3d 154, 161 (Tex. Crim. App. 2011). And,
in any event, in Kothe, the court of criminal appeals observed that appellate courts have the option to
consider the issue of standing either on their own motion or on the State’s, but may also hold that the State
has forfeited the issue by failing to raise it in the trial court. Kothe v. State, 152 S.W.3d 54, 60 & n.15 (Tex.
Crim. App. 2004).

                                                      18
pursuant to a warrant when it did not make that argument in the trial court even though it

was the defendant’s initial burden to prove that the seizure was warrantless). We overrule

the State’s fourth issue.

                                        III. CONCLUSION

       We affirm the order of the trial court.


                                                  NORA L. LONGORIA
                                                  Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
13th day of February, 2014.




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