AFFIRM; and Opinion Filed August 26, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00438-CR

                             JAMES EMBRY MAY II, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 5
                                   Collin County, Texas
                           Trial Court Cause No. 005-84903-10

                             MEMORANDUM OPINION
                           Before Justices Bridges, O’Neill, and Brown
                                   Opinion by Justice O’Neill
       Appellant James Embry May II appeals his conviction for driving while intoxicated.

After finding appellant guilty, the trial court assessed punishment at ninety days’ confinement,

probated for eighteen months and a $600 fine. In two points of error, appellant contends the trial

court erred in (1) denying his motion to suppress evidence, and (2) granting the State’s pretrial

motion for continuance. For the following reasons, we affirm the trial court’s judgment.

       In his first issue, appellant contends the trial court erred in denying his motion to suppress

evidence obtained after an unlawful “citizen’s arrest.” According to appellant, he was “arrested”

by Frances Petroff, a retired nurse. The trial court considered and denied appellant’s motion to

suppress during his bench trial.

       The evidence at trial showed that Petroff observed appellant driving a black Camry when

she was returning home from work at about 5:30 p.m. The Camry was stopped at a red light at
the corner of Parker and Preston in Plano. A man in an SUV that was stopped behind the Camry

had exited his vehicle and was pounding on the Camry’s window, yelling for someone to call the

police.

          When the light turned green, appellant proceeded down Parker. Petroff followed, and

pulled up beside the car to look at the driver. She said appellant was staring straight ahead and

seemed to be in some distress. She called 911, put on her flashers, and started honking her horn

in an effort to get him to stop. She followed appellant, as he made two turns and eventually

stopped on a side street in a residential neighborhood. Petroff pulled in behind appellant. When

he stopped, appellant exited his vehicle and told Petroff he was looking for Thanksgiving Street.

Petroff told appellant that she did not know what was wrong, but she was concerned about him.

When appellant got close to Petroff, she smelled alcohol on him and she realized he was

intoxicated and was not having a medical emergency. She said a fire truck, an ambulance, and

police responded to the scene.         After giving police a statement, she left.       Appellant was

subsequently arrested for DWI.

          In his first issue, appellant contends the trial court erred in denying his motion to suppress

because Petroff “arrested” him without probable cause. When reviewing a trial court’s ruling on

a motion to suppress, we view the evidence in the light most favorable to the ruling. State v.

Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011).                   In determining whether our

exclusionary rule requires suppression of evidence due to the actions of a private person, the

question is whether evidence was obtained by actions of the private person that would have

violated the Fourth Amendment if done by a police officer. Miles v. State, 241 S.W.3d 28, 45

(Tex. Crim. App. 2007). When a defendant alleges evidence should be suppressed under the

Fourth Amendment, he has the initial burden of establishing he was “seized.” Russell v. State,

717 S.W.2d 7, 9 (Tex. Crim. App. 1986), disapproved on other grounds by Handy v. State, 189

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S.W.3d 296 (Tex. Crim. App. 2006). It is only when an officer, “by means of physical force or

show of authority, has in some way restrained the liberty of a citizen,” will courts conclude that a

“seizure” has occurred. State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008).

       According to appellant, Petroff “arrested” him because her actions in honking her horn

and putting on her “flashers” caused him to stop, and thus interfered with his freedom of

movement. We disagree with appellant for two reasons. First, although it is undisputed that

Petroff was trying to get appellant to stop and appellant did eventually stop, appellant did not

present any evidence Petroff was the reason he stopped. 1 Second, even if appellant stopped

because of Petroff’s actions, we cannot agree this establishes she “arrested” or otherwise

detained him.         Petroff did not use or threaten any force to cause appellant to stop at the scene,

she did not prevent him from leaving the scene, and she did not otherwise physically restrict

appellant’s freedom of movement in any way. Cf. Miles, 241 S.W.3d at 31 (citizen followed

defendant into a parking lot and then “corralled” defendant and demanded his keys). Nor did

Petroff have, claim to have, or exhibit any type of authority that might have caused appellant to

reasonably believe he was required to stop. Cf. Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim.

App. 1979) (member of Buffalo Springs Lake Patrol, who was outside his jurisdiction, effected a

citizen’s arrest when he pulled over the defendant’s vehicle by turning on his red lights, took the

defendant’s license and stayed with defendant until local police arrived.). We cannot agree that

Petroff honking her horn and putting on her flashers are akin to an officer utilizing red lights on a

patrol vehicle. Because Petroff did not “arrest” or otherwise detain appellant, we need not

determine whether she had probable cause. We resolve the first issue against appellant.




       1
           Indeed, evidence was subsequently presented showing appellant had blown his tire and had been driving on his rim.




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       In his second issue, appellant contends the trial court erred in granting the State’s motion

for continuance. Appellant’s trial was initially set for December 10, 2012. On December 6, after

conducting a hearing, the trial court granted the State’s motion for continuance. The hearing was

not transcribed and therefore we have no record of that proceeding. According to appellant, the

State had not filed a written motion for continuance at the time of the hearing, but did so later

that day, after he objected to the lack of a written motion. In its written motion, the State

requested a continuance because Petroff had been hospitalized for blood clots that had spread to

all quadrants of her lungs. Although Petroff was expected to be released the following day, she

had an appointment to see her doctor on December 10.

       An appellant must object to the trial court’s ruling on whether to grant or deny a

continuance to preserve error for appeal. McCraw v. State, 690 S.W.2d 69, 71 (Tex. App.—

Dallas 1985, no pet.); see also Vigneault v. State, 600 S.W.2d 318, 329 (Tex. Crim. App. 1980)

(en banc); Anderson v. State, 615 S.W.2d 745, 746 (Tex. Crim. App. 1981). To be timely, an

objection must be made as soon as the grounds for objecting become apparent. Lackey v. State,

364 S.W.3d 837, 843 (Tex. Crim. App. 2012). The two main purposes of requiring a timely

objection is (1) to inform the judge of the basis of the objection and give him the chance to make

a ruling on it, and (2) to give opposing counsel the chance to remove the objection or provide

other testimony. Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App. 2004).

       An appellant must present a record in the court of appeals that demonstrates he is entitled

to appellate relief. Davis v. State, 345 S.W.3d 71, 79 (Tex. Crim. App. 2011). Here, the only

objection contained in the record is appellant’s motion to dismiss filed over two months after the

trial court granted the State’s motion for continuance. In this motion, appellant complained that

the trial court erred in granting the continuance because the State’s written motion did not

comply with article 29.04 of the code of criminal procedure. TEX. CODE CRIM. PROC. ANN. art.

                                               –4–
29.04 (West 2006).                Although appellant stated in the motion that he had objected to the

continuance two months earlier, counsel’s statements about what occurred at a hearing cannot

substitute for a record of the pertinent proceedings. 2 Cf. Granado v. State, 228 S.W.2d 530, 521

(Tex. Crim. App. 1950) (statements in a brief cannot give appellate court knowledge of what

occurred at a proceeding for which there is no record).                                   Further, even if we considered the

objections appellant claimed to have made at the hearing, he complained only that the State had

not at that time filed a written motion for continuance. It is undisputed the State subsequently

did so and appellant did not complain about the adequacy of the written motion for over two

months. We conclude appellant waived any error regarding the continuance.

           Further, we note appellant’s argument is premised on his contention that a trial court may

only grant a State’s first motion for continuance if it meets the requirements of 29.04 of the code

of criminal procedure. Article 29.04 provides the circumstances under which a State’s first

motion for continuance “shall be sufficient.” See TEX. CODE CRIM. PROC. ANN. art. 29.04 (West

2006). Article 29.03, however, also provides that a trial court “may” grant a continuance on

written motion filed by the State or the defendant showing “sufficient cause.” See TEX. CODE

CRIM. PROC. ANN. art. 29.03 (West 2006). In addition to these two statutory grounds for a

continuance, a trial court also possesses discretion to grant an oral motion for continuance on

equitable grounds. See Hernandez v. State, 492 S.W.2d 466, 467 (Tex. Crim. App. 1973);

O’Rarden v. State, 777 S.W.2d 455, 458 (Tex. App.—Dallas 1989, pet. ref’d); Darty v. State,

149 Tex. Crim. 256, 193 S.W.2d 195, 195 (1946); Williams v. State, 172 S.W.3d 730, 733 (Tex.

App.—Fort Worth 2005, pet. ref’d). Appellant has not attempted to show the trial court abused

its discretion in granting the State’s motion for continuance under either Article 29.03 or on


     2
       The record does not show appellant objected that the proceedings were not transcribed and he does not raise that complaint on appeal. See
Davis, 345 S.W.3d at 77.



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equitable grounds. We resolve the second issue against appellant and affirm the trial court’s

judgment.




                                                  /Michael J. O'Neill/
                                                  MICHAEL J. O'NEILL
                                                  JUSTICE
Do Not Publish
TEX. R. APP. P. 47

130438F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JAMES EMBRY MAY II, Appellant                      On Appeal from the County Court at Law
                                                   No. 5, Collin County, Texas
No. 05-13-00438-CR        V.                       Trial Court Cause No. 005-84903-10.
                                                   Opinion delivered by Justice O'Neill.
THE STATE OF TEXAS, Appellee                       Justices Bridges and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 26th day of August, 2014.




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