                                                                                   ACCEPTED
                                                                               06-14-00232-CR
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                           6/3/2015 3:22:58 PM
                                                                              DEBBIE AUTREY
                                                                                        CLERK

                                 In the
                       Court of Appeals for the
             Sixth Judicial District of Texas at Texarkana    FILED IN
                                                       6th COURT OF APPEALS
                                                         TEXARKANA, TEXAS
 Christi Beth Perrin,              §                   6/3/2015 3:22:58 PM
     Appellant                     §                       DEBBIE AUTREY
                                                               Clerk
                                   §
           v.                      §         No. 06-14-00232-CR
                                   §
 The State of Texas,               §
     Appellee                      §

                Trial Number 004-82924-2014 in the
                    Collin County Court at Law 4
            The Honorable David Rippel, Judge Presiding

                           STATE’S BRIEF

                                       Greg Willis
                                       Criminal District Attorney
                                       Collin County, Texas

                                       John R. Rolater, Jr.
                                       Asst. Criminal District Attorney
                                       Chief of the Appellate Division

Oral argument is requested if          Erik F. Gierczyk
Appellant also requests argument       Asst. Criminal District Attorney
                                       2100 Bloomdale Rd., Suite 200
                                       McKinney, TX 75071
                                       (972) 548-3657
                                       FAX (214) 491-4860
                                       State Bar No. 2408233
                                       egierczyk@collincountytx.gov

                                       Rachel Tran
                                       Asst. Criminal District Attorney
                                      Table of Contents

Index of Authorities .................................................................................. ii

Statement Regarding Oral Argument ......................................................1

Statement of the Case ...............................................................................1

Statement of Facts..................................................................................... 1

Summary of the State’s Arguments .......................................................... 6

  Argument & Authorities ........................................................................7

  I. Standard of Review .............................................................................7

Issue One THE TRIAL COURT PROPERLY OVERRULED
APPELLANT'S MOTION TO SUPPRESS ...............................................7


       Appellant claims the trial court erred in denying her motion
       to suppress. The trial court properly overruled the motion to
       suppress because the officer had reasonable suspicion to
       detain Appellant.

  II. Argument .........................................................................................10

Prayer ...................................................................................................... 15

Certificate of Service ............................................................................... 16

Certificate of Compliance ........................................................................16




                                                                                                           i
                                   Index of Authorities

Statutes, Codes, and Rules

Tex. Penal Code § 49.04 ........................................................................ 1

Tex. Transp. Code § 545.418 ......................................................... 10, 14

Tex. Transp. Code § 724.015 ................................................................. 4


Cases

Davis v. State,
 947 S.W.2d 240 (Tex. Crim. App. 1997) ............................................. 9

Derichsweiler v. State
 348 S.W. 3d 906 (Tex. Crim. App. 2011) .......................................... 13

Ford v. State,
 158 S.W.3d 488 (Tex. Crim. App. 2005) ............................................. 8

Garcia v. State,
 827 S.W.2d 937 (Tex. Crim. App. 1992) ............................................. 9

Goudeau v. State,
 209 S.W. 3d 713(Tex. App.—Houston 14th Dist. 2006, no pet. ....... 11

Graham v. State,
 893 S.W.2d 4 (Tex. App. – Dallas 1994, no pet.) ................................ 8

Guzman v. State,
 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................................... 7, 8

Jones v. State,
 833 S.W.2d 118 n. 15 (Tex. Crim. App. 1992), cert. denied, 507 U.S.
 921 (1993) ............................................................................................ 8


                                                                                                        ii
Romero v. State,
 800 S.W.2d 539 (Tex. Crim. App. 1990) ............................................. 7

State v. Kerwick,
 393 S.W.3d 270 (Tex. Crim. App. 2013) ........................................... 12

Strickland v. State,
 923 S.W. 2d 617 (Tex. App.—Houston [1st Dist.] 1995, no pet.) ..... 11

Terry v. Ohio,
 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)............ 8, 9, 11

Thomas v. State,
 336 S.W. 3d 703
 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) ....................... 10, 11

Wade v. State,
 422 S.W. 3d 661, 668 (Tex. Crim. App. 2013)................................. 8, 9

Whren v. United States,
 517 U.S. 806, 812-13 (1996)................................................................. 9

Woods v. State,
 956 S.W.2d 33 (Tex. Crim. App. 1997) ............................................... 8




                                                                                            iii
                     Statement Regarding Oral Argument

        The State does not believe oral argument will assist the Court

in resolving the issues in this case. However, if oral argument is

granted to Appellant, the State requests the opportunity to respond.



                                  Statement of the Case

Charge............................................................... Tex. Penal Code § 49.04
                                                                                        CR 9

Plea ......................................................................................... Not Guilty
                                                                                                2 RR 107

Verdict (Jury)................................................................................. Guilty
                                                                                           3 RR 104

Punishment (Jury)................................................... 6 days’ confinement
                                                                                3 RR 154

                                    Statement of Facts

         Allen Police Officer Antony Brown was patrolling a residential

neighborhood late one evening in September of 2012 when he noticed

something out of the ordinary—a black sedan parked in the 400 block

of Twin Creeks Drive with its driver’s side door open, facing traffic,

and no one inside the car or within its vicinity. 2 RR 125. He first saw

the car at approximately 12:30 a.m., when it was parked in an inlet



                                                                                                       1
designed for resident parking slightly off the roadway. 2 RR 125.

Based on his knowledge of that area and the late hour, Officer Brown

suspected the car may have been broken into, or that some other

cause for concern accounted for the unusual circumstances, and

decided to investigate further. 2 RR 125. A computer check of the

car’s license plate showed it was not registered to an address in Allen.

2 RR 127-28. As Officer Brown turned his patrol car around to stop

in front of the suspicious car, a woman appeared and walked

alongside other vehicles parked on the side of the road. 2 RR 127. She

was later identified by her driver’s license as Christi Beth Perrin, the

Appellant in this case. 2 RR 129. Officer Brown parked his patrol car

approximately 40 feet in front of the suspicious car and watched

Appellant enter the car and begin to drive towards him. 2 RR 127. As

Appellant neared Officer Brown’s parked patrol car, he stepped out of

his car and stopped her. 2 RR 127.

     Upon initial contact, Officer Brown immediately noticed

Appellant was wearing a polo shirt on backwards, so that the collar

was under her chin and the v-shaped button-opening was on her

back. 2 RR 128. Officer Brown, who was in training to become a drug



                                                                       2
recognition expert (DRE) at the time, also noticed Appellant’s eyes

were abnormally dilated. 2 RR 129. When asked what she was doing

in the neighborhood, Appellant stated that she was trying to visit a

friend who lived in Colleyville, a city over 35 miles away from the

location of the stop. 2 RR 130. Appellant denied having consumed

alcohol, but admitted she had taken four prescription drugs earlier in

the day: Valium, Depakote, Adderall and Trazadone. 2 RR 131, 142.

Valium, Depakote, and Trazadone are all central nervous system

(CNS) depressants, while Adderall is a CNS stimulant. 2 RR 184.

Based on what he had observed of Appellant, Officer Brown suspected

her of possibly driving while intoxicated (DWI) and decided to

administer the standardized field sobriety tests (SFSTs). 2 RR 131.

     After determining Appellant was a good candidate for the

SFSTs, Officer Brown administered first test, the horizontal gaze

nystagmus (HGN) test. 2 RR 134-35. Appellant showed no clues on

this test. 2 RR 134-35. Appellant then performed the two divided-

attention tests, the walk-and-turn (WAT) and one-legged-stand (OLS)

test. 2 RR 137-39. Appellant showed five out of eight clues of

intoxication on the WAT and three out of four clues of intoxication on



                                                                      3
the OLS. 2 RR 138-39. According to the decision point on each test,

Appellant failed both the WAT and OLS. 2 RR 138-42. Based on

everything he observed, Officer Brown concluded that the Appellant

lacked the normal use of her mental and physical faculties due to the

ingestion of CNS depressants and stimulants, and he arrested her for

DWI. 2 RR 143.

       At the Allen city jail, Officer Thompson read the DIC-24

warnings1 to Appellant and requested that she provide a blood

sample to test for the presence of drugs. 2 RR 145. Appellant

consented and Officer Brown then transported her to a hospital for a

blood draw. 2 RR 146. Following the blood draw, Officer Matthew

Johnson, a certified DRE, conducted a drug recognition exam of

Appellant. 2 RR 180. Officer Johnson concluded that Appellant lacked

the normal use of her mental and physical faculties due to the

introduction of CNS stimulants and depressants into her body. 2 RR

192.

       At trial, the blood-draw results were admitted into evidence and

showed that Appellant’s blood contained: 0.11 milligrams of

1These warnings set out the penalties associated with refusing to provide a blood
or breath sample. See Tex. Transp. Code § 724.015.

                                                                               4
Amphetamine per liter, 0.10 milligrams of Diazepam per liter, 0.28

milligrams of Nordiazepam per liter, and an unquantified level of

Valproic Acid. 3 RR 16, 34, 43; SX 4. Diazepam, Nordiazepam, and

Valproic Acid are all CNS depressants, whereas Amphetamine is a

stimulant. 3 RR 45. Forensic scientist Eduardo Padilla of the DPS

Austin Crime Laboratory testified that the level of Nordiazepam in

Appellant’s blood, a metabolite of Diazepam (commonly known as

Valium), exceeded therapeutic levels. 3 RR 44. He also testified that

while each CNS depressant detected in Appellant’s blood could have

an impairing effect on its own, a greater impairing effect is possible

when taken in combination. 2 RR 45. Videos of the traffic stop and

interactions at the police station were admitted into evidence and

viewed by the jury. 2 RR 193-94; SX 1.




                                                                     5
           Summary of the State’s Arguments


State’s Reply to Issue One:

     THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S
     MOTION TO SUPPRESS.

     Appellant claims the trial court erred in denying her motion to

suppress. The trial court properly overruled the motion to suppress

because the officer had reasonable suspicion to detain Appellant.




                                                                    6
                      Argument & Authorities

                             Issue One

     THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S
     MOTION TO SUPPRESS.

     Appellant claims the trial court erred in denying her motion to

suppress. The trial court properly overruled the motion to suppress

because the officer had reasonable suspicion to detain Appellant.

I. Standard of Review

     In a suppression hearing, the trial court judges the witnesses’

credibility and the weight to be given to testimony. Romero v. State,

800 S.W.2d 539,543 (Tex. Crim. App. 1990).       In reviewing a trial

court’s decision on a motion to suppress, an appellate court must

grant almost total deference to a trial court’s determination of the

historical facts that the record supports, especially when the court’s

fact findings are based on an evaluation of credibility and demeanor.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The

same amount of deference must be afforded to the trial court’s rulings

on “application of law to fact questions,” also known as “mixed

questions of law and fact,” if the resolution of those ultimate

questions turns on an evaluation of credibility and demeanor.       Id.


                                                                     7
However, an appellate court may review de novo “mixed questions of

law and fact” not falling within this category. Id.

     The trial court’s ruling must be upheld if it is right for any

reason. Jones v. State, 833 S.W.2d 118,125 n. 15 (Tex. Crim. App.

1992), cert. denied, 507 U.S. 921 (1993).     In fact, the trial court’s

ruling should be upheld if it can be upheld on any valid theory

regardless of whether the State argued the theory in the trial court or

on appeal.   Graham v. State, 893 S.W.2d 4, 7 (Tex. App.—Dallas

1994, no pet.).

     To conduct an investigative detention, a police officer must have

a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1,

30-31 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App.

1997). An officer has reasonable suspicion for a detention if he has

specific, articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably conclude

that the person detained is, has been, or soon will be engaged in

criminal activity. Wade v. State, 422 S.W. 3d 661, 668 (Tex. Crim.

App. 2013); Ford v. State, 158 S.W.3d 488,492 (Tex. Crim. App. 2005).




                                                                      8
The reasonableness of a temporary detention is determined from the

totality of the circumstances. Wade, 422 S.W. 3d at 668.

      An investigative detention is reasonable if the officer’s action

was justified at its inception and was reasonably related in scope to

the circumstances that justified the interference in the first place.

Terry 392 U.S. at 19-20; Davis v. State, 947 S.W.2d 240, 242 (Tex.

Crim. App. 1997). The reasonableness of a traffic stop is evaluated

based solely on an objective standard; thus, an officer’s subjective

intent plays no role in the determination of whether a traffic stop was

reasonable. Whren v. United States, 517 U.S. 806, 812-13 (1996); see

also Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (the

“officer’s   subjective   intent   is   relevant   only   to   a   credibility

determination of his stated reasons for stopping or arresting an

individual.”). Consequently, the police may validly stop a vehicle for a

traffic violation so long as the stop would be objectively reasonable,

regardless of whether the stop is a mere pretext to investigate

unrelated criminal conduct. Garcia, 827 S.W.2d at 944.




                                                                            9
II. Argument

     In Thomas v. State, 336 S.W. 3d 703, 709 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d), a police officer, who was outside of his

jurisdiction, saw a car driving unsafely, and observed a passenger

open one of the car’s doors so that it was facing traffic while the car

was still partially in the street. Thomas 336 S.W. 3d at 706, 708-9.

The officer stopped the car, questioned the driver Thomas, and

Thomas was ultimately arrested for driving while intoxicated. Id. at

706-7. Thomas filed a motion to suppress the stop and arrest,

arguing, in part, that the stop was impermissible under Terry

because the investigating officer was outside his jurisdiction and

Appellant had not been the one to open the passenger door. Thomas

at 707.

     On appeal, Thomas again argued that the detention was

impermissible under Terry. Thomas at 708. The First Court of

Appeals held that an officer’s visual observation of a car’s door being

open, while facing traffic, provided an officer with reasonable

suspicion of a violation of         section 545.418 of the Texas

Transportation Code and provided sufficient justification for an



                                                                    10
investigatory detention under Terry. Thomas at 709. Even though the

officer had not seen Thomas open the car door, the court noted that,

“There is no requirement that justification for the Terry stop be

caused by the driver of the vehicle or even the person ultimately

charged with a crime.” Thomas at 709; See Strickland v. State, 923

S.W. 2d 617, 620 (Tex. App.—Houston [1st Dist.] 1995, no pet.).

Lastly, under the second prong of Terry, the court held that once the

officer approached Thomas during the stop, smelled alcohol, and

suspected he was drunk—the officer’s investigative detention

expanded to include driving while intoxicated. Id. at 710. Terry, 392

U.S. at 20; see Goudeau v. State, 209 S.W. 3d 713, 719 (Tex. App.—

Houston 14th Dist. 2006, no pet.) (“During an investigation of a

traffic violation, if an officer develops [a] reasonable suspicion that

another violation has occurred, the scope of the initial investigation

expands to include the new offense.”).

     In the instant case, Appellant argues that she was illegally

detained because the officer stopped her without reasonable

suspicion. Appellant overlooks the highly suspicious nature of the

circumstances that led up to the stop, which provided Officer Brown



                                                                    11
sufficient justification to conduct an investigative detention. It is

undisputed that Officer Brown, during his routine patrol, happened

upon an open and unattended vehicle late at night with no one in the

vicinity. As a veteran patrol officer familiar with the area, Officer

Brown knew the circumstances were out of the ordinary and he

immediately suspected the car may have been burglarized or that

some other criminal activity was afoot. As he prepared to stop and

continue his investigation, Officer Brown saw Appellant suddenly

appear and attempt to drive away in the suspicious car. At that point

in his investigation, Officer Brown could reasonably have reasonably

inferred that he was witnessing a possible burglary of a motor vehicle

become an unauthorized use of a motor vehicle. See State v. Kerwick,

393 S.W.3d 270, 276 (Tex. Crim. App. 2013) (officer may briefly

detain persons to establish their identities and ensure they have not

just committed offenses). Just as with other potential crimes

involving automobiles, the mobile nature of the car and its occupants

demands that an investigation of suspected criminal activity be

carried out in a time-sensitive manner. As the Court of Criminal

Appeals stated in Derichsweiler v. State:



                                                                   12
     Particularly with respect to information suggesting that a crime
     is about to occur, the requirement that there be “some
     indication that the unusual activity is related to crime” does not
     necessarily mean that the information must lead inexorably to
     the conclusion that a particular and identifiable penal code
     offense is imminent. It is enough to satisfy the lesser standard
     of reasonable suspicion the information is sufficiently detailed
     and reliable – i.e., it supports more than an inarticulate hunch
     or intuition – to suggest that something of an apparently
     criminal nature is brewing. 348 S.W. 3d 906, 917 (Tex. Crim.
     App. 2011)

     In the instant case, the highly unusual circumstances for the

area and Appellant’s behavior provided Officer Brown with enough

specific, articulable facts to draw a reasonable inference that the

unusual activity was related to crime that had occurred, was

occurring, or was about to occur. The information he had was

sufficiently detailed and reliable to support more than an inarticulate

hunch that something of an apparently criminal nature was brewing.

Thus, he had reasonable suspicion to detain the Appellant and

investigate unusual circumstances he reasonably believed were

related to crime.

     Appellant also argues that there was no evidence that she was

engaging in any criminal activity prior to the stop. App. Brief at 24.

Here, just as in Thomas, it was the investigating officer’s testimony



                                                                     13
that Appellant’s car door was open, facing traffic. In fact, that is what

first drew Officer Brown’s attention to Appellant’s car. There is also

no dispute that Appellant’s car was parked in the 400 block of Twin

Creeks Drive, a public roadway. Similarly to Thomas, the facts in the

present case provided the investigating officer with a reasonable

suspicion that section 545.418 of the Texas Transportation Code was

being violated and, thus, provided sufficient justification for a Terry

stop. Like the officer in Thomas, Officer Brown’s initial investigatory

detention expanded to include a DWI investigation once he made

contact with Appellant and developed the reasonable suspicion that

she was driving while intoxicated. Finally, Appellant concedes that,

“There is no doubt that she was driving and little question from the

video evidence that she was impaired.” App. Brief at 18.

     For all the above reasons, Officer Brown had reasonable

suspicion to detain Appellant to maintain the status quo and

determine whether some offense had been committed. Therefore, the

trial court properly denied the motion to suppress. This point is

without merit and should be overruled.




                                                                      14
Prayer
    Appellant’s trial was without prejudicial error. The State prays

that this Court will affirm Appellant’s conviction and sentence.


                                       Respectfully submitted,


                                       Greg Willis
                                       Criminal District Attorney
                                       Collin County, Texas

                                       John R. Rolater, Jr.
                                       Asst. Criminal District Attorney
                                       Chief of the Appellate Division

                                       /s/ Erik F. Gierczyk
                                       Erik F. Gierczyk
                                       Asst. Criminal District Attorney
                                       2100 Bloomdale Rd., Suite 200
                                       McKinney, TX 75071
                                       State Bar No. 24082333
                                       (972) 548-3657
                                       FAX (214) 491-4860
                                       egierczyk@collincountytx.gov




                                                                    15
                        Certificate of Service

     The State has e-served counsel for Appellant, the Honorable

John Schomburger, through the eFileTexas.gov filing system and sent

a courtesy copy by e-mail to jschomburger@gmail.com on this, the 3rd

day of June 2015.

                                 /s/ Erik F. Gierczyk
                                 Assistant Criminal District Attorney


                     Certificate of Compliance

     This brief complies with the word limitations in Texas Rule of

Appellate Procedure 9.4(i)(2). In reliance on the word count of the

computer program used to prepare this brief, the undersigned attorney

certifies that this brief contains 2,443 words, exclusive of the sections

of the brief exempted by Rule 9.4(i)(1).

                                 /s/ Erik F. Gierczyk
                                 Assistant Criminal District Attorney




                                                                     16
