                                                                          ACCEPTED
                                                                     01-14-00547-CR
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                               12/24/2014 4:52:21 PM
                                                                 CHRISTOPHER PRINE
                                                                              CLERK

               NO. 01-14-00547-CR

     IN THE COURT OF APPEALS FOR THE           FILED IN
                                        1st COURT OF APPEALS
           FIRST DISTRICT OF TEXAS          HOUSTON, TEXAS
             SAN ANTONIO, TEXAS         12/29/2014 8:00:00 AM
         ______________________________ CHRISTOPHER A. PRINE
                                                   Clerk
             ROLAND ALVARADO,
                  Appellant

                         v.

            THE STATE OF TEXAS,
                   Appellee
        ______________________________

ON APPEAL FROM COUNTY COURT AT LAW NO. 12
         OF BEXAR COUNTY, TEXAS
            CAUSE NUMBER 354155
        ______________________________

            BRIEF FOR THE STATE
        ______________________________

                SUSAN D. REED
            Criminal District Attorney
              Bexar County, Texas

                LAUREN A. SCOTT
       Assistant Criminal District Attorney
                Bexar County, Texas
                Paul Elizondo Tower
                101 W. Nueva Street
             San Antonio, Texas 78205
   Phone: (210) 335-2885 Email: lscott@bexar.org
              State Bar No. 24066843

          Attorneys for the State of Texas
               IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.2(a), the appellee supplements the appellant’s
list of parties as follows:


TRIAL COURT                            The Honorable Scott Roberts

APPELLATE STATE’S                      Lauren A. Scott
ATTORNEY                               State Bar No. 24066843
                                       Assistant Criminal District Attorney
                                       Paul Elizondo Tower
                                       101 W. Nueva Street
                                        San Antonio, Texas 78205
                                       (210) 335-2885
                                       Email: lscott@bexar.org




                                      ii
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. ii

INDEX OF AUTHORITIES ......................................................................... iv

BRIEF FOR THE STATE .............................................................................. 1

STATEMENT REAGARDING ORAL ARGUMENT ................................. 1

STATEMENT OF FACTS ............................................................................. 1

SUMMARY OF THE ARGUMENT ............................................................. 4

Appellant ignores the legitimate law enforcement purpose of police protocol
when an off duty officer is being investigated of a crime. The extraordinary
circumstance of investigating a fellow officer for DWI justifies the delay to
wait for the supervising officers to arrive on scene, and the trial court
properly denied the motion to suppress.


ARGUMENT .................................................................................................. 4

PRAYER ....................................................................................................... 10

CERTIFICATE OF COMPLIANCE AND SERVICE ................................ 11




                                                       iii
                                    INDEX OF AUTHORITIES
Cases

State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006)............................... 5

State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ................................ 6

Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007) ........................... 5

Belcher v. State, 244 S.W.3d 531 (Tex. App.—Fort Worth 2007, no pet.) ... 7

Dickson v. State, No. 03-06-00126-CR, 2006 Tex. App. LEXIS 10483 (Tex.

  App.—Austin 2006, no pet.) (mem. op., not designated for publication) .. 8

Hartman v. State, 144 S.W.3d 568, 573-74 (Tex. App.—Austin 2004, no

  pet.) .............................................................................................................. 8

Pullen v. State, No. 01-13-00259-CR, 2014 Tex. App. LEXIS 9454 (Tex.

  App.—Houston [1st] 2014, no pet.) ............................................................. 8

Richardson v. Pasadena, 500 S.W.2d 175 (Tex. App.—Houston [14th] 1973)

  (rev’d on procedural grounds) ................................................................... 10

Smith v. State, No. 03-06-00085-CR, 2007 Tex. App. LEXIS 1783 (Tex.

  App.—Austin 2007, pet. ref’d) (mem. op., not designated for publication)

   ..................................................................................................................... 8

State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002) ............................ 5

Terry v. Ohio, 392 U.S. 1 (1968) .................................................................... 6

United States v. Sharpe, 470 U.S. 675 (1985) ................................................ 6



                                                           iv
Rules
TEX. R. APP. P. 38.2(a)(1)(B) .......................................................................... 2




                                                    v
                                 NO. 01-14-00547-CR

ROLAND ALVARADO                          §        IN THE FIRST DISTRICT
           APPELLANT                     §
                                         §
             VS.                         §        COURT OF APPEALS
                                         §
THE STATE OF TEXAS,                      §
             APPELLEE                    §        SAN ANTONIO, TEXAS


                             BRIEF FOR THE STATE

To the Honorable Fourth Court:

      Now comes, Susan D. Reed, Criminal District Attorney of Bexar County,

Texas, and files this brief for the State.

            STATEMENT REAGARDING ORAL ARGUMENT
      The appellant has requested oral argument. The State waives oral argument

because the issue on appeal can be decided based on the record and case law.

However, if the Court is inclined to grant appellant’s request, then the State would

respectfully ask for an opportunity to respond.

                         STATEMENT OF FACTS
      The State challenges the factual assertions contained in appellant’s brief.

See TEX. R. APP. P. 38.2(a)(1)(B).           The times of 1:30 and 2:10 provided by

appellant in his brief are that of trial defense counsel in cross examination

questions and defense argument. It is not the time provided by Officer Chandler’s

testimony.     There are certain times that are fixed and known based on

documentation, but other times were given as approximations, not the set, specific

                                              1
times that appellant asserts in his brief. (Appellant’s brief at 8) (stating the STST’s

began at 2:10). The times that are fixed and known are the 12:57 AM arrival time

of Officer Chandler to the scene and the 2:56 AM arrival time of Officer Chandler

and appellant at the jail. (2 R.R. at 9 and 3 R.R. at 119). The timeline in between

was given as approximations from Officer Chandler, Sergeant Wilson, and

Lieutenant Biasiolli.

      On the night of February 11, 2011 at 12:54 AM, Officer Chandler received a

call for an officer to respond to the scene of an accident. (2 R.R. at 7-10 and 3 R.R.

at 50-51). Once on the scene, Officer Chandler saw several people standing

around in a parking lot.      He parked, got out of his vehicle, and found the

complainants. They told the officer that the appellant had caused a disturbance

inside the club so he was told to leave, and as he attempted to drive away, the

appellant ran into another vehicle. (2 R.R. at 11 and 3 R.R. at 53). After looking

at the vehicle damage and talking to the bystanders, Officer Chandler approached

Alvarado. Id. Once Officer Chandler got close and Alvarado removed his hoodie,

Chandler recognized him as a fellow officer. (2 R.R. at 11 and 3 R.R. at 55).

Since there was an accident, Officer Chandler obtained Alvarado’s information in

order to exchange it with the complainant, and as he was talking to Alvarado,

Chandler noticed a strong odor of alcohol and that his speech was a little slurred.

(2 R.R. at 12 and 3 R.R. at 56). Because the incident included an off duty officer



                                          2
and alcohol may have been a factor, the San Antonio Police Department manual

requires that the investigating officer contact the immediate supervisor. (2 R.R. at

13 and 59). Following protocol, Officer Chandler called his immediate supervisor,

Sergeant Wilson. (2 R.R. at 14 and 3 R.R. at 59). While he waited for the

Sergeant to arrive, Chandler completed paperwork in his vehicle while Alvarado

waited in his vehicle. (2 R.R. at 15 and 3 R.R. at 58). During the motion to

suppress and at trial, Officer Chandler testified it took 15-20 minutes for Sergeant

Wilson to arrive at the scene. (2 R.R. at 15 and 3 R.R. at 60). Sergeant Wilson

confirmed at trial that it took him approximately 20 minutes to get to the scene

once he received the call. (4 R.R. at 43).

      After the sergeant arrived, Officer Chandler told him about the situation.

Once he had informed his supervisor of what had happened up until that point, he

went back to Alvarado and asked him to perform the standardized field sobriety

tests. (2 R.R. at 16 and 3 R.R. at 61-62). Alvarado consented and performed all of

the tests. (2 R.R. at 17 and 3 R.R. at 63). Based on Alvarado’s performance on the

tests, Officer Chandler decided to arrest Alvarado on suspicion of DWI. (3 R.R. at

113). After the tests were done, Alvarado asked to speak with the lieutenant, and

asked the lieutenant to use his discretion and let him go home in the taxi. The

lieutenant denied the request. (4 R.R. at 85). The officers also took steps to get in

touch with Alvarado’s mother in order to release his vehicle to her, and prevent it



                                             3
from being towed. (3 R.R. at 88). Officer Chandler left the scene with Alvarado

around 2:30 AM and processed him in the jail at 2:56 AM. (2 R.R. at 18 and 3

R.R. at 119).

        Additional testimony, not relevant to the issue on appeal, came from Johnny

Ruiz and Debbie Stevens. (4 R.R. at 109 and 140). Mr. Ruiz performed the breath

test on Alvarado and Ms. Stevens analyzed the data, which showed Alvarado’s

blood alcohol content to be 0.117 at the time he was tested. (4 R.R. at 118 and

164).

                       SUMMARY OF THE ARGUMENT
        Appellant ignores the legitimate law enforcement purpose of police protocol

when an off duty officer is being investigated of a crime. The extraordinary

circumstance of investigating a fellow officer for DWI justifies the delay to wait

for the supervising officers to arrive on scene, and the trial court properly denied

the motion to suppress.

                                   ARGUMENT
Standard of Review
     On review, the trial court’s decision on a motion to suppress must be upheld

as long as it is reasonably supported by the record and is correct under any

applicable theory of law. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App.

2002). The appellate court must view the record in the light most favorable to the

trial court’s ruling and reverse that ruling only if it is outside the zone of

reasonable disagreement. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

                                         4
2006).       A reviewing court gives almost total deference to a trial court’s

determination of the historical facts that are supported by the record, particularly if

the findings of fact are based on credibility and demeanor. Amador v. State, 221

S.W.3d 666, 673 (Tex. Crim. App. 2007). The same level of deference is given to

the trial court’s application of law to the facts or to mixed questions of law and

fact, especially when the findings are based on credibility and are supported by the

record. Id. When the trial court makes explicit finding of fact, the reviewing court

considers, in the light most favorable to the trial court’s ruling, whether the record

supports those finding. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.

2006). Legal rulings are reviewed de novo unless the trial court’s findings that are

supported by the record are dispositive. Id.

Reasonableness of the Detention

      The Fourth Amendment is not a protection against all searches and seizures,

but a protection against unreasonable searches and seizures.           Under Fourth

Amendment jurisprudence, it is well settled that law enforcement may detain an

individual for investigatory purposes, as long as the officer has articulable

reasonable suspicion. In Terry v. Ohio, the Supreme Court adopted a dual analysis

for deciding the reasonableness of an investigative stop. Terry v. Ohio, 392 U.S. 1,

20 (1968). Under this approach the Court looked at “whether the officer’s action

was justified at its inception, and whether it was reasonably related in scope to the



                                          5
circumstances which justified the interference in the first place.” Id.     In United

States v. Sharpe, the Supreme Court decided there is “no rigid time limitation on

Terry stops,” and that an important factor to deciding whether the length of a

detention is reasonable is the law enforcement purposes served by the stop and the

need to effectuate those purposes. United States v. Sharpe, 470 U.S. 675, 685

(1985). There is no per se rule when deciding whether an investigatory detention

is too long to be reasonable under Terry. Instead a reviewing court looks at the

totality of the circumstances to determine whether the investigating officer’s

actions were reasonable. Id. at 686-87.

      The detention in this case can be broken up into three time segments: 1) the

officer’s initial contact and accident investigation 2) the officer calling and waiting

for supervising officers and 3) the officer conducting the standardized field

sobriety tests and arresting Alvarado.    Each segment lasted approximately 20-30

minutes, making the total stop an hour and a half. The only segment that did not

include Officer Chandler performing his investigatory duties was in the second

time block when he called and waited for his immediate supervisor, which lasted

between 20-30 minutes.

      The delay in the investigation in this case was reasonable because it served a

legitimate law enforcement purpose. See Belcher v. State, 244 S.W.3d 531, 539

(Tex. App.—Fort Worth 2007, no pet.) (noting that “the trial and appellate courts



                                          6
may consider legitimate law enforcement purpose served by any delay in the

officer’s investigation.”).   Texas courts have held that such legitimate law

enforcement purposes include: a delay to permit the arrival of a DWI enforcement

officer so that a supervising officer may return to duty; a delay for the arrival of a

video camera so that the DWI investigation and field sobriety tests could be

videotaped according to department procedure; and a delay for the arrival of a new

officer in need of training. See e.g., Hartman v. State, 144 S.W.3d 568, 573-74

(Tex. App.—Austin 2004, no pet.); Smith v. State, No. 03-06-00085-CR, 2007

Tex. App. LEXIS 1783 (Tex. App.—Austin 2007, pet. ref’d) (mem. op., not

designated for publication); Dickson v. State, No. 03-06-00126-CR, 2006 Tex.

App. LEXIS 10483 (Tex. App.—Austin 2006, no pet.) (mem. op., not designated

for publication).   The legitimate law enforcement purpose in this case was the

officer following San Antonio Police department protocol when investigating an

off duty officer of a crime. See Pullen v. State, No. 01-13-00259-CR, 2014 Tex.

App. LEXIS 9454 (Tex. App.—Houston [1st] 2014, no pet.) (finding that the

appellant’s detention was based on police procedures, which were developed for

legitimate law enforcement purposes).

      All three of the officers who made the scene agreed that Officer Chandler

followed standard police policy that night. Officer Chandler testified that when he

is in the position of investigating a fellow officer, it is police protocol to call the



                                          7
immediate supervising officer. (3 R.R. at 59). He also noted that had a medical

issue occurred with Alvarado, Chandler would have notified his supervisors on the

scene. (3 R.R. at 66). Sergeant Wilson explained his role was to coordinate the

logistics of the scene. For example, he would have called in other officers if

necessary, and, generally, he would have handled any issues that may have

occurred during Officer Chandler’s investigation.          (4 R.R. at 54 and 57).

Lieutenant Biasiolli further explained that the police policy of having a higher

ranking officer, on the scene while investigating an off duty officer, ensures all

protocol is followed and it allows for the proper notification through the chain of

command. (4 R.R. at 66).        Clearly the 20-30 minute delay while waiting for a

supervising officer was reasonable in light of the extraordinary circumstance of the

suspect being an off duty officer.      In addition, looking at the totality of the

circumstances, during the delay, Alvarado was allowed to sit in his own vehicle,

unrestrained, and he was able to use his cell phone, which also supports the

reasonableness of Officer Chandler’s actions during the investigation. (2 R.R. at

59 and 3 R.R. at 58).

      Alvarado argues that “the need to call superior officers because of

appellant’s status as a police officer at the time of the offense, does not render this

prolonged detention reasonable” because, he contends, the supervising officers did

not actively participate in the DWI investigation (Appellants’ brief at 18).



                                          8
However, the policy of calling a supervising officer exists not to have the

supervisor assist in the investigation, but to ensure that protocol is followed, and to

support the integrity of the investigation if any issues did occur. It is a legitimate

law enforcement purpose to have policies in place that creates a system of checks

and balances that help maintain the public’s trust in the police force, especially at a

time when they are investigating one of their own members. See Richardson v.

Pasadena, 500 S.W.2d 175, 177 (Tex. App.—Houston [14th] 1973) (rev’d on

procedural grounds) (finding “the superior right of the public to an efficient and

credible police department” over the privacy rights of a police officer). In light of

these special circumstances, the delay was reasonable, and the trial court’s denial

of the motion to suppress should be upheld and the judgments of conviction

affirmed.




                                          9
                        PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that the

judgment of the trial court should, in all things, be AFFIRMED.



                                             Respectfully submitted,

                                             Susan D. Reed
                                             Criminal District Attorney
                                             Bexar County, Texas


                                             /s/ Lauren A. Scott

                                             ______________________________
                                             Lauren A. Scott
                                             Assistant Criminal District Attorney
                                             Bexar County, Texas
                                             Paul Elizondo Tower
                                             101 W. Nueva Street
                                             San Antonio, Texas 78205
                                             Phone: (210) 335-2885
                                             Email: lscott@bexar.org
                                             State Bar No. 24066843

                                             Attorneys for the State




                                        10
             CERTIFICATE OF COMPLIANCE AND SERVICE

      I, Lauren A. Scott, herby certify that the total number of words in appellee’s

brief is approximately 2400. I also certify that a true and correct copy of the above

brief was mailed to Megan Roper, attorney for appellant, at 313 S. Main, San

Antonio, Texas 78204, on December 26, 2014.




                                              /s/ Lauren A. Scott
                                              ____________________________
                                              Lauren A. Scott
                                              Assistant Criminal District Attorney




                                         11
