REVERSE and REMAND; Opinion Filed November 26, 2018.




                                                In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-17-00905-CR

                            THE STATE OF TEXAS, Appellant
                                        V.
                        MELISSA BRANTLEY CRUMPLER, Appellee

                 On Appeal from the County Criminal Court of Appeals No. 2
                                   Dallas County, Texas
                           Trial Court Cause No. MA15-10354-M

                              MEMORANDUM OPINION
                            Before Justices Lang, Fillmore, and Schenck
                                    Opinion by Justice Schenck
       The State appeals the trial court’s decision to grant appellee Melissa Brantley Crumpler’s

motion to suppress the breath test administered to measure the amount of alcohol present in her

system following her arrest for driving while intoxicated. In its first issue, the State urges the trial

court erred by holding the State to the burden of proving appellee’s consent to the breath test was

voluntary. In its second issue, the State argues the trial court erroneously found appellee’s

invocation of her right to counsel precluded the State from proving that appellee voluntarily

consented to the breath test. In its third issue, the State maintains that the evidence shows appellee

voluntarily consented to the breath test. In its fourth issue, the State urges that the order may not

be affirmed on any other applicable theory of law. For the reasons set forth below, we reverse the

trial court’s order granting the motion to suppress the breath test and the results therefrom and
remand for further proceedings. Because all issues are settled in law, we issue this memorandum

opinion. TEX. R. APP. P. 47.4.

                                           BACKGROUND

       Officer Ryan Claustre arrested appellee for driving while intoxicated. He transported her

to the jail for a breath test. In the intoxilyzer room, after first examining the inside of appellee’s

mouth to ensure there was no intoxicant present, the intoxilyzer operator, Kara Tardif, announced

the beginning of the fifteen-minute waiting period before any breath specimen would be taken.

During that waiting period, Officer Claustre provided appellee with the DIC-24 statutory warning

and requested a specimen of appellee’s breath. She responded, “sure” at that time and again after

the officer asked a second time to confirm. Officer Claustre read to appellee the warnings required

under Miranda v. Arizona, 384 U.S. 436 (1966), and article 38.22 of the code of criminal

procedure. Appellee indicated she did not understand her right to counsel. The officers explained

to appellee that she did not have to answer questions without her attorney being present. Appellee

continued to indicate she did not understand, so Officer Claustre provided her with a written copy

of her rights and reviewed them with appellee. Appellee stated, “if I have the right to an attorney,

I guess I would want that right.” Appellee continued to talk with the officers, neither of whom

asked her for any more information, other than what time she had to be at work in the morning.

At the end of the waiting period, appellee provided two breath specimens.

       Appellee filed a motion to suppress the breath test and related results because of a lack of

corroborating video or testimonial evidence. Appellee later filed an amended motion to suppress,

in which she argued the evidence was obtained as of a result of an illegal stop or detention. The

trial court conducted an evidentiary hearing on appellee’s motion, during which both sides argued

and the State presented evidence through the testimony of Officer Claustre and a video recording

of the waiting period and the subsequent breath test in the intoxilyzer room. At the conclusion of


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arguments from both sides, the trial judge raised the issue of whether appellee’s consent to provide

breath specimens was voluntary in light of her statement indicating she wanted an attorney. The

State and appellee’s counsel presented arguments regarding whether appellee was entitled to

counsel at that time and whether providing a breath specimen was testimonial. The prosecutor

pointed out that appellee’s original and amended motions to suppress did not raise the issue of

voluntariness but stated he would address that issue if that is what the trial judge wanted.

       The trial court continued the hearing on the motion to suppress until the next day at which

time the State offered the video from Officer Claustre’s body camera during his stop of appellee,

recordings of the 911 call, the police report, and the call notes. The State renewed its objections

to the court’s consideration of the issue of the voluntariness of appellee’s consent because that

issue was not included in either appellee’s motion to suppress or her amendment thereto. The

prosecutor verbally moved to continue the hearing in order to obtain the testimony of the

intoxilyzer operator. The trial court denied the motion to continue and granted appellee’s motion

to suppress the breath test and related results but denied appellee’s motion to suppress evidence

related to the detention or stop. The trial court based its rulings on the findings that appellee had

invoked her right to an attorney, which was not heeded by the officers, and at that point, the

interrogation should have stopped, such that “anything after that point would be inadmissible.”

The trial court further stated that the totality of the circumstances indicated there was no voluntary

consent.

       The State requested findings of fact and conclusions of law and appealed the trial court’s

ruling. When no findings or conclusions were entered, at the State’s request, this Court abated the

appeal and remanded the case to the trial court for preparation of findings of fact and conclusions

of law, which the trial court provided.




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                                            DISCUSSION

       In its first issue, the State urges the trial court erred by holding the State had the burden of

proving appellee’s consent to a breath test was voluntary.

       We review a trial court’s ruling on a motion to suppress for an abuse of discretion. State

v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). We view the record in the light most

favorable to the trial court’s determination, and we reverse the judgment only if it is arbitrary,

unreasonable, or outside the zone of reasonable disagreement. Id. We will uphold the judgment

if it is correct on some theory of law applicable to the case, even if the trial judge made the

judgment for a wrong reason. Id. Further, we will not reverse a trial court’s ruling based on a

legal theory that the complaining party did not present to it. Id. Because the trial court is the sole

trier of fact, we give almost total deference to a trial court’s determination of the historical facts

that the record supports, especially when the trial court’s fact findings are based on an evaluation

of credibility and demeanor. See Fienen v. State, 390 S.W.3d 328, 335 (Tex. Crim. App. 2012).

We review de novo questions of law and mixed questions of law and fact that do not depend upon

credibility and demeanor. Id.

       A driver’s consent to a blood or breath test must be free and voluntary, and it must not be

the result of physical or psychological pressures brought to bear by law enforcement. Id. at 333.

The court of criminal appeals has held that when the issue of voluntary consent is raised in a motion

to suppress, the State must prove voluntary consent by clear and convincing evidence. Id. at 335.

       Here, the State urges, and the record reflects, that neither appellee’s motion to suppress nor

the amended motion raised the issue of the voluntariness of her consent to the breath test. Thus,

the State argues, because appellee did not raise the issue of voluntariness of her consent in her

motion to suppress, the State had no burden to prove that appellee’s consent was voluntary. We




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agree and conclude the trial court erred by basing its ruling on whether appellee’s consent was

voluntary. See id.

           Appellee argues that the State failed make it clear to the trial court that it was the State’s

position that the trial court could not consider—or base its suppression decision on—whether

appellee’s consent was voluntary. Appellee also urges that the issue of voluntary consent was tried

by consent. However, the State did in fact make the trial court aware that the issue was not raised

in either of appellee’s motions and that the lack of notice prejudiced the State’s ability to present

evidence on the issue of voluntary consent. An issue is not tried by consent where the complaining

party properly objects to the submission of issues not raised by the pleadings. See Webb v.

Glenbrook Owners Ass’n, Inc., 298 S.W.3d 374, 380 (Tex. App.—Dallas 2009, no pet.).1

Accordingly, regardless of whether the issue could have been tried by consent in this context, it

was not in fact tried by consent here. See id.

           We sustain the State’s first issue.

           In its second issue, the State argues the trial court erroneously found appellee’s invocation

of her right to counsel precluded the State from proving that appellee voluntarily consented to the

breath test. In its third issue, the State maintains that the evidence shows appellee voluntarily

consented to the breath test. Because we concluded the State had no burden to prove appellee

voluntarily consented to the breath test, we need not address its second or third issues. See TEX.

R. APP. P. 47.4.



      1
        Whether an issue may be tried by consent in the criminal context and under these circumstances is not clear. See, e.g., Trejo v. State, 280
S.W.3d 258, 264 (Tex. Crim. App. 2009) (Keller, P.J., concurring) (noting that “[i]n the civil arena in Texas, issues that were not pleaded may be
tried by consent if submitted without objection in the jury charge) (emphasis added); Weatherby v. State, 61 S.W.3d 733, 739 (Tex. App.—Fort
Worth 2001, pet. ref’d) (“There is no such thing as trial by consent in a criminal case.”). Appellee relies on an opinion from another court of
appeals later vacated by the court of criminal appeals to urge that issues may be litigated by consent. See Taylor v. State, 850 S.W.2d 294, 296
(Tex. App.—Houston [1st Dist. 1993) (op. on reh’g), vacated 863 S.W.2d 737 (Tex. Crim. App. 1993) (en banc). However, that decision is
inapposite because the court of appeals held the issue could have been but was not tried by consent where the record did not show the State was
aware of the new grounds asserted in the defendant’s memorandum of law but not in his motion for rehearing. See id. Further, the court of criminal
appeals vacated that opinion, holding that the defendant preserved those issues by including them in his memorandum of law. See Taylor, 863
S.W.2d at 738. Here, appellee failed to include the issue of voluntary consent in her motion or amended motion and filed no supporting
memorandum. Accordingly, the later Taylor opinion is also inapposite.

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       However, our standard of review of rulings on motions to suppress necessitates our

resolution of the State’s fourth issue, in which the State urges that no other applicable theory of

law supports the trial court’s decision to suppress the breath test and its results.

       In her amended motion to suppress, appellee argued the evidence was obtained as a result

of an illegal stop or detention in violation of the Fourth and Fourteenth Amendments. At the

hearing, appellee urged that Officer Claustre lacked reasonable suspicion to detain her and that

even if he had a reasonable suspicion, he lacked probable cause to arrest her. The trial court denied

appellee’s motion to suppress with respect to the legality of the detention or arrest, and its findings

of fact and the record supports its ruling.

       The Fourth Amendment permits an officer to detain a person for investigatory purposes

when the officer has reasonable suspicion to believe the individual is violating the law. Rucker v.

State, No. 05-13-00066-CR, 2014 WL 1022451, at *2 (Tex. App.—Dallas Mar. 5, 2014, pet. ref’d)

(mem. op., not designated for publication). Reasonable suspicion exists when, based on the totality

of the circumstances, the officer has specific, articulable facts that, when combined with rational

inferences from those facts, would lead the officer to conclude that a person is, has been, or soon

will be, engaged in criminal activity. Id. The factual basis for stopping a vehicle need not arise

from the officer’s personal observation, but may be supplied by a citizen-eyewitness which is

adequately corroborated by the detaining officer. Id. Corroboration does not mean the officer

must personally observe the conduct that causes him to reasonably suspect that a crime is being,

has been, or is about to be committed. Id. What is required is that the officer, in light of the

circumstances, confirm enough facts to reasonably conclude the information he was given is

reliable and a temporary detention is justified. Id.

       For an arrest to be justified under the Fourth Amendment, a police officer must have

probable cause to believe that the suspect has committed or is committing an offense. State v.

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Ford, 537 S.W.3d 19, 23–24 (Tex. Crim. App. 2017). Probable cause is a fluid concept that cannot

be readily reduced to a neat set of legal rules. Id. Although the concept evades precise definition,

it involves a reasonable ground for belief of guilt that is particularized with respect to the person

to be searched or seized. Id. It is a greater level of suspicion than “reasonable suspicion” but falls

far short of a preponderance of the evidence standard. Id. If an officer has probable cause to arrest,

a search incident to arrest is valid if conducted immediately before or after a formal arrest. Id.

       Here, appellee’s neighbor called 9-1-1 to report she heard glass breaking and believed

appellee was intoxicated, or “hammered.” When the Addison police officers arrived, appellee’s

neighbor told them appellee had stumbled towards her car and driven away, providing the officers

with appellee’s full name, a description of the clothes she was wearing, and the type of vehicle she

was driving. While the officers were speaking with the neighbor, appellee returned and parked

her car in her driveway. Officer Claustre approached appellee and noticed a strong odor of alcohol

on her breath, red and watery eyes, and slurred speech. Appellee admitted she had consumed

alcohol that evening. Appellee performed field sobriety tests, some of which she passed and others

she failed. The information provided by the neighbor, combined with his own observations of

appellee, provided Officer Claustre with reasonable suspicion that appellee had engaged in

criminal activity, i.e., driving while intoxicated, to support detaining appellee and probable cause

to believe that appellee had committed an offense, i.e., driving while intoxicated, to support

arresting appellee. See Rucker, 2014 WL 1022451, at *3 (reasonable suspicion provided by

eyewitness information regarding defendant’s vehicle, location, and concerning driving behavior

and arresting officer’s observations of defendant’s driving); Diaz v. State, No. 05-09-00750-CR,

2010 WL 1714001, at *2 (Tex. App.—Dallas Apr. 28, 2010, pet. ref’d) (not designated for

publication) (probable cause established by arresting officer’s knowledge of defendant’s




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performance on field sobriety tests, smell of alcohol on defendant’s breath, and defendant’s

unsteady balance).

        Appellee does not urge, and we have not found, any other legal theory that could support

the trial court’s decision to suppress the breath test and its results.

        We sustain the State’s fourth issue.

                                             CONCLUSION

        We reverse the trial court’s order granting the motion to suppress the breath test and the

results therefrom, order the motion to be denied, and remand the cause to the trial court for further

proceedings consistent with this opinion.




                                                     /David J. Schenck/
                                                     DAVID J. SCHENCK
                                                     JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47

170905F.U05




                                                  –8–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 THE STATE OF TEXAS, Appellant                      On Appeal from the County Criminal Court
                                                    of Appeals No. 2, Dallas County, Texas
 No. 05-17-00905-CR        V.                       Trial Court Cause No. MA15-10354-M.
                                                    Opinion delivered by Justice Schenck,
 MELISSA BRANTLEY CRUMPLER,                         Justices Lang and Fillmore participating.
 Appellee

       Based on the Court’s opinion of this date, we REVERSE the trial court’s order granting
the motion to suppress the breath test and the results therefrom, ORDER the motion to be
denied, and REMAND the cause to the trial court for further proceedings consistent with this
opinion.


Judgment entered this 26th day of November, 2018.




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