                            NUMBER 13-12-00307-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG


THE STATE OF TEXAS,                                                        Appellant,


                                          v.

ROBERT MORALES,                                                             Appellee.


               On appeal from the County Court at Law No. 4
                        of Nueces County, Texas.


                            MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
           Memorandum Opinion by Chief Justice Valdez
      By two issues, appellant, the State of Texas, challenges the trial court’s granting

of appellee’s motion to suppress. In issue one, the State argues that the police officer

did not detain appellee because appellee was passed out and not aware of the officer’s
actions. In the alternative, the State claims in its second issue that the testimony of the

officer established that he had reasonable suspicion to detain appellee. We affirm.1

                                           I.       BACKGROUND

        On May 31, 2012, Officer Christopher Simnacher was patrolling the 1000 block of

Carmel Parkway when he spotted a black Pontiac parked and running on the side of the

road with an electrical cord sticking out of the passenger side door that was attached to

a tire inflation device sitting on the ground outside of the vehicle. Officer Simnacher

then parked behind the vehicle and activated his lights. Officer Simnacher approached

the vehicle and found appellee passed out in the driver’s seat. He arrested appellee,

who was subsequently charged with driving while intoxicated. See TEX. PENAL CODE

ANN. § 49.04 (West Supp. 2012).

        On April 12, 2012, the trial court held a hearing on appellee’s motion to suppress.

At the hearing, counsel for appellee clarified that appellee was only challenging the

initial stop as a detention without reasonable suspicion and not the existence of

probable cause to arrest. Officer Simnacher testified that he approached the vehicle

because he believed there might be a burglary in progress. He testified that there had

been a lot of auto and residential burglaries in the area where he arrested appellee,

which he had been patrolling for one or two months.                     He testified that it was not

uncommon for cars to be parked on that street. He testified that when he parked behind

the vehicle and activated his lights, he could not see anyone in the vehicle. He testified

that it was abnormal for someone to park a vehicle and leave it running at 5:00 a.m. He

further testified that “no normal person is going to leave—even if they have their car

        1
         On May 25, 2012, appellee filed a motion to extend time to file findings of fact and conclusions of
law. Findings of fact and conclusions of law were filed with this court on March 1, 2013. Therefore, we
dismiss appellee’s motion as moot.

                                                     2
running, they’re not going to leave something strung out, especially with a cord stuck in

the door.” The trial court granted appellee’s motion to suppress because it found that

Officer Simnacher did not have reasonable suspicion to detain appellee.

      The trial court entered the following findings of fact and conclusions of law:

                                    Findings of Fact

      1. The Court finds that Officer approached a vehicle.

      2. The Court finds the vehicle was parked on the side of the street.

      3. The Court finds that the police officer parked behind the vehicle.

      4. The Court finds that the officer approached the vehicle because it may
         have been involved in a burglary or there may have been a residential
         burglary.

      5. The Court finds that the police officer did not testify to any articulable
         facts regarding any vehicle burglaries or residential burglaries.

      6. The Court finds that the police officer made contact with the individual
         and arrested him for Driving While Intoxicated.

                                Conclusions of Law

      1. The Court concludes the officer approached the vehicle based on a
         suspicion or mere hunch.

      2. The Court concludes the officer lacked reasonable suspicion based on
         his testimony, to approach and detain defendant.

      3. The Court concludes that the officer did not articulate any activity out of
         the ordinary or any indication related to the crime.

                                     II.    DETENTION

      In its first issue, the State, in its appellate brief, argues that appellee was not

actually detained because he “passed out and was unaware of the officer’s actions.” At

the motion to suppress hearing, however, the State argued only that Officer Simnacher




                                            3
had reasonable suspicion to detain and that he was conducting an investigation as part

of his “community safekeeping” duties.

       The Texas Court of Criminal Appeals has held that ordinary notions of procedural

default apply equally to the defendant and the State, and that the basic appellate

principle that points not argued at trial are deemed waived applies to the State when it is

the appellant. State v. Mercado, 972 S.W.2d 75, 77–78 (Tex. Crim. App. 1998). We,

therefore, cannot reverse a trial court’s decision on a theory of law not presented to the

trial court. Mercado, 972 S.W.2d at 77; State v. Huddleston, 164 S.W.3d 711, 716 (Tex.

App.—Austin 2005, no pet.) (finding, in an appeal of a granted motion to suppress, the

State could not advance an argument on appeal that an officer stopped a vehicle based

on reasonable suspicion that the driver was intoxicated when the State’s sole argument

at trial was that the officer stopped the vehicle because of a statutory traffic violation);

see also State v. Campos, No. 13-09-00200-CR, 2009 Tex. App. LEXIS 6807, at **5–7

(Tex. App.—Corpus Christi, Aug. 27 2009, no pet.) (mem. op., not designated for

publication) (finding that the court of appeals could not consider the State’s argument

that the trial court “failed to recognize two valid exceptions to the warrant requirement of

the Fourth Amendment” when the State did not argue that they applied during the

suppression hearing).         The State is required to make specific objections to the

defendant’s basis for suppression in order to afford the trial court the opportunity to rule

on it and to afford opposing counsel an opportunity to respond to it. Martinez v. State,

91 S.W.3d 331, 335 (Tex. Crim. App. 2002) (finding that the court could not consider the

argument that a statute did not apply in the circumstances when the argument was not

raised in the trial court).



                                             4
      As stated above, a review of the record reveals that, at the suppression hearing,

the State argued only that the officer had reasonable suspicion and that he was

conducting an investigation as part of his “community safekeeping” duties.            The

prosecuting attorney never argued that appellee was not detained, nor did he argue that

he could not be detained because he was unaware of the officer’s actions. The trial

court, therefore, had no opportunity to consider this argument or to make a factual

determination regarding whether or not appellee was aware of the officer’s actions. We

therefore hold that, by failing to present it to the trial court, the State waived the

argument, on appeal, that appellee was not detained because he was unaware of the

officer’s actions. See Mercado, 972 S.W.2d at 77; Huddleston, 164 S.W.3d at 716; see

also Campos, 2009 Tex. App. LEXIS 6807 at **5–7.              The State’s first issue is

overruled.

                               III.   REASONABLE SUSPICION

      Because the State has waived its argument that there was no detention, we now

turn to its contention that the trial court erred by finding the officer lacked reasonable

suspicion to detain appellee. The State asserts that Officer Simnacher’s encounter with

“an unoccupied vehicle that was parked, turned on and running with its lights on with an

electrical cord strung out of its passenger car door at around five o’clock in the morning

in an area well known for car burglaries and house burglaries” was enough to create

reasonable suspicion. The appellee counters that the officer detained appellee with the

sole purpose to investigate the possibility of a burglary because there had been

burglaries in that neighborhood in the past and for no other reason stated. Appellee

argues that there were not enough facts to support reasonable suspicion because the



                                            5
car was parked in a neighborhood where other cars park; Officer Simnacher noted

nothing strange about the car; and there was no unusual activity connected to appellee.




A.     Standard of Review

       We review a motion to suppress evidence under a bifurcated standard. Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial judge's determinations of

historical facts and mixed questions of law and fact that rely on credibility are granted

almost total deference when supported by the record. Id. But when mixed questions of

law and fact do not depend on the evaluation of credibility and demeanor, we review the

trial judge's ruling de novo. Id. Whether the facts known to the officer at the time of the

detention amount to reasonable suspicion is a mixed question of law that is reviewed de

novo on appeal. Ornelas v. United States, 517 U.S. 690, 699 (1996) (holding that

determination of reasonable suspicion should be reviewed de novo on appeal, with

deference to judges' findings of historical facts); State v. Mendoza, 365 S.W.3d 666,

670 (Tex. Crim. App. 2012).      Accordingly, when a trial judge rules on a motion to

suppress and makes explicit factual findings, an appellate court must determine

whether the findings are supported by the record, using an abuse of discretion standard

and giving the trial court almost “total deference.” State v. Kerwick, ___ S.W.3d____,

2013 Tex. Crim. App. LEXIS 430, at *9 (Tex. Crim. App. Feb. 27, 2013); see State v.

Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) (“When the trial judge makes

explicit findings of fact, we afford those findings almost total deference as long as the

record supports them, regardless of whether the motion to suppress was granted or



                                            6
denied.”). The Court must then undertake a de novo review when considering whether

the findings of fact support the legal conclusions of the trial court. Kerwick, ___

S.W.3d____, 2013 Tex. Crim. App. LEXIS 430 at *9; see State v. Sheppard, 271

S.W.3d 281, 288 (Tex. Crim. App. 2008).

B.       Applicable Law

         The Fourth Amendment to the United States Constitution permits a warrantless

detention of a person if the detention is justified by reasonable suspicion. Terry v. Ohio,

392 U.S. 1, 28, 88 (1968); Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.

2011).     “[A] law enforcement officer's reasonable suspicion that a person may be

involved in criminal activity permits the officer to stop the person for a brief time and

take additional steps to investigate further.” Hiibel v. Sixth Judicial Dist. Court, 542 U.S.

177, 185 (2004).     Reasonable suspicion to detain a person exists if an officer has

specific, articulable facts that, 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. York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App.

2011).    These facts must show unusual activity, some evidence that connects the

detainee to the unusual activity, and some indication that the unusual activity is related

to a crime. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). “Although

an officer's reliance on a mere ‘hunch’ is insufficient to justify an investigatory stop, . . .

the likelihood of criminal activity need not rise to the level required for probable cause.”

United States v. Arvizu, 534 U.S. 266, 274 (2002). The test for reasonable suspicion

focuses solely on whether an objective basis exists for the detention and disregards the

officer's subjective intent. Terry, 392 U.S. at 21–22; York, 342 S.W.3d at 536.               A



                                               7
reasonable suspicion determination requires looking at the totality of the circumstances

and reasonable suspicion may exist even if those circumstances standing alone may be

just as consistent with innocent activity as with criminal activity. York, 342 S.W.3d at

536. Courts have considered an officer’s testimony that activity occurs in a high crime

area as support for the existence of reasonable suspicion.           See Castleberry, 332

S.W.3d at 368. However, this fact is not sufficient, on its own or in conjunction with

other purely speculative evidence, to create reasonable suspicion.          See Gamble v.

State, 8 S.W.3d 452, 454 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

       Recently, the Texas Court of Criminal Appeals reversed a granting of a motion to

suppress finding, contrary to the holdings of the trial court and court of appeals, that a

police officer did have reasonable suspicion to stop a car and detain its driver. Kerwick,

___ S.W.3d____, 2013 Tex. Crim. App. LEXIS 430 at *15. In Kerwick, the trial court

entered findings of fact that the officer was responding to a dispatch call that there was

a fight in front of a bar and that, when the officer arrived at the bar, a person standing

outside pointed to the car and stated “there they are right there.” Id.         The Kerwick

Court held that the trial court and appeals court erred in concluding that the officer

lacked reasonable suspicion because “the trial judge’s findings of fact list[ed] specific,

articulable facts known to [the officer] at the time he detained [appellee].” Id. at *10.

C.     Analysis

       Here, as an initial matter, we find that Officer Simnacher’s testimony at the

suppression hearing supported the trial court’s findings of fact. However, the trial court

made very few specific findings of fact. Consequently, the only objective facts from the

findings of fact we are left to consider in our de novo review of the court’s conclusions of



                                              8
law are that the officer approached a car parked on the side of the street.2 This is not

enough to support a claim of reasonable suspicion to detain.

         Officer Simnacher testified that the car was not parked in an illegal area and that

there were other cars parked in the area. The trial court did not make any findings of

fact regarding the officer’s testimony that the car was turned on or that there was a cord

protruding from the passenger side door attached to a tire inflation device; therefore, we

must give the court discretion to disbelieve the officer’s testimony in this regard. See

Guzman, 955 S.W.2d at 89. However, even if we were to determine that the trial court

believed all of the officer’s testimony, these facts would be insufficient to lead a

reasonable officer to conclude that the person in the vehicle was committing or about to

commit a crime, as this evidence is too speculative to support a rational inference that a

burglary or other crime could be in progress. See York, 342 S.W.3d at 536. Unlike

Kerwick, the officer in the present case was not responding to a dispatch call that a

crime was being committed, nor was there anyone at the scene who called attention to

the vehicle. See Kerwick, ___ S.W.3d____, 2013 Tex. Crim. App. LEXIS 430, at *2.

Furthermore, while Texas courts in some cases have relied on an officer’s testimony

that suspected criminal activity occurred in a “high crime area” to support reasonable

suspicion, here, the trial court did not make a finding of fact on its view of Officer

Simnacher’s general testimony about previous burglaries in the area and actually

entered a specific finding of fact that “the police officer did not testify to any articulable

facts regarding any vehicle burglaries or residential burglaries.” See Castleberry, 332


        2
          We must disregard the trial court’s second factual finding that Officer Simnacher believed that a
burglary may have been in progress because an officer’s subjective beliefs are not relevant to the
determination on reasonable suspicion. See Kerwick, ___ S.W.3d____, 2013 Tex. Crim. App. LEXIS 430
at **8–9; Terry, 392 U.S. at 21–22; York, 342 S.W.3d at 536.

                                                    9
S.W.3d at 468; Guzman, 955 S.W.2d at 89. We therefore must give the trial court

deference to disbelieve the officer’s testimony that burglaries had previously occurred in

the area, and if we found that it did believe this testimony, we would determine, in our

de novo review, that the trial court did not afford it much weight because it found that

Officer Simnacher did not provide articulable facts to indicate that his inference was

objectively reasonable. Additionally, Officer Simnacher’s testimony did not establish

enough facts about the specific situation which, in conjunction with his knowledge that

burglaries had previously occurred in the area, would give rise to reasonable suspicion.

See Gamble, 8 S.W.3d at 454.

         Therefore, given the totality of the circumstances as we have determined from

the trial court”s limited findings of fact and Officer Simnacher’s speculative testimony,

we find that Officer Simnacher lacked reasonable suspicion to detain appellee. See

Terry, 392 U.S. at 21–22; York, 342 S.W.3d at 536. We overrule the State’s second

issue.

                                       IV.    CONCLUSION

         We affirm the trial court’s granting of appellee’s motion to suppress.

                                                   ________________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
9th day of May, 2013.




                                              10
