                                                      January 28, 2015

                     PD-1664-14
                     IN THE
            COURT OF CRIMINAL APPEALS
                    AT AUSTIN

                  ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

                   NO. 01-13-00259-CR
                         IN THE
            FIRST DISTRICT COURT OF APPEALS
                    HOUSTON, TEXAS

                  ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

                  ALYSSA PULLEN,
                        Appellant
                           V.
               THE STATE OF TEXAS,
                         Appellee

                  ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

                   CAUSE NO. 1817849
         IN COUNTY CRIMINAL COURT AT LAW NO. 4
                 HARRIS COUNTY, TEXAS

                  ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                                GARY S. MILLER
                                State Bar No: 24051050
                                1018 Preston St., Suite 500
                                Houston, TX 77002
                                tel: (713) 223-4200
                                fax: (713) 568-2820
                                gary@millerdefense.com

           ORAL ARGUMENT REQUESTED 
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 68.4 (c), Appellant requests oral argument.

Issues raised in this petition are fact specific and oral argument would allow the

parties to address any concerns or questions this Court may have. The First Court

of Appeals’ opinion conflicts with decisions from the U.S. Supreme Court.

Additionally, the issue presents an important question of law that has not yet been

addressed by this Court.




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                            TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT……………………………….2

INDEX OF AUTHORITIES……………………………………………………… 4

STATEMENT OF THE CASE……………………………………………………..1

STATEMENT OF THE PROCEDURAL HISTORY………………………………6

REASONS FOR REVIEW…………………………………………………………7

GROUND FOR REVIEW………………………………………………………….7

Is it reasonable under the Fourth Amendment for an officer with superior expertise
conducting DWI investigations to detain a suspected intoxicated driver for thirty
minutes to wait for another officer with inferior DWI expertise with no video
recording equipment?……………………………………………………………….……..……. 8

CONCLUSION…………………………….……………………………………..17

CERTIFICATE OF SERVICE……………….………………………………..… 17

CERTIFICATE OF COMPLIANCE……………………………………………..18




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                            INDEX OF AUTHORITIES
CASES

Belcher v. State,
       244 S.W.3d at 539 (Tex. App.—Fort Worth 2007, no pet.)………………………… 10, 11

Bullock v. State,
       No. 01-11-00347-CR (Tex. App—[1st Dist.], Nov. 21, 2012)………………… 10, 11, 12

Cady v. Dombrowski,
       413 U.S. 433, 437 (1973)………………………………………………….….……..… 13

Florida v. Royer,
       460 U.S. 491, 500 (1983)…………………………………………………………….… 7

Hartman v. State,
      144 S.W.3d 568, 572 (Tex. App.—Austin 2004)………………………….…… 10, 11, 13

Kothe v. State,
       152 S.W.3d 54, 64 (Tex. Crim. App. 2004)……………………………………………. 13

Michigan v. Summers,
      452 U.S. 692 (1981)……………………………………………………………………. 7

Sibron v. New York,
       392 U.S. 40 (1968)…………………………………………………………………….. 16

Smith v. State,
       No. 03-06-00085-CR, 2007 WL 700834 (Tex. App.—Austin
       Mar. 7, 2007, pet. ref.’d)(mem. op., not designated for publication)…………………. 10

United States v. Brigham,
       382 F.3d 500, 511 (5th Cir. 2004)………………………………………………….……13

United States v. Sharpe,
       470 U.S. 675 (1985)…………………………………………………………… 7, 9, 10, 13

RULES

TEX. R. APP. P. 66.3 (c)…………………………………………………………… 7

TEX. R. APP. P. 68.2 (a)…………………………………………………………… 6
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TEX. R. APP. P. 68.4 (c)….……….…………………………………………..…… 2




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  TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

                          STATEMENT OF THE CASE

      Appellant was charged by information with driving while intoxicated. (CR

3). A jury convicted Appellant of the charged offense and the trial court sentenced

her to 3 days in the Harris County Jail and a $1,500.00 fine. (CR 58).

              STATEMENT OF THE PROCEDURAL HISTORY

      On August 26, 2014, a unanimous panel of the First Court of Appeals issued

an unpublished opinion affirming the trial court’s denial of Appellant’s motion to

suppress. Pullen v. State, No. 01-13-00259-CR (Tex. App. — Houston [1st. Dist.]

Aug. 28, 2014, pet. filed) (not designated for publication). A motion for en banc

rehearing was filed by Appellant on October 10, 2014, which was denied on

November 20, 2014. The First Court of Appeals also issued an order on November

20, 2014, titled “corrected pages to opinion issued.” (See Appendix A). After one

extension was granted, this petition for discretionary review is timely if filed by

January 21, 2015. See TEX. R. APP. P. 68.2(a).

      The First Court of Appeals held that the trial court did not err in denying

Appellant’s motion to suppress because the thirty minute detention of Appellant

was reasonable under the Fourth Amendment. Pullen, 14. The Court held that the

thirty minute delay was justified by legitimate law enforcement purposes in

furtherance of the investigation. Id. at 13. The First Court of Appeals also held that


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the duration of Appellant’s detention was also reasonable under the Fourth

Amendment. Id. at 14.

                           REASONS FOR REVIEW

      This petition for discretionary review should be granted because the First

Court of Appeals’ decision conflicts with U.S. Supreme Court cases, namely

United States v. Sharpe, 470 U.S. 675 (1985), Florida v. Royer, 460 U.S. 491, 500,

(1983), and Michigan v. Summers, 452 U.S. 692 (1981).         See TEX. R. APP. P.

66.3(c).   Appellant’s warrantless detention for thirty minutes failed to effectuate

the purpose of the detention because the delay was solely to wait for an

“designated DWI Unit” with inferior expertise and no additional necessary

video equipment.

                           GROUNDS FOR REVIEW

       The U.S. Supreme Court has strictly limited the duration of warrantless

seizures to the amount of time necessary to quickly dispel the suspicion of criminal

activity. Sharpe, 470 U.S. at 686. The U.S. Supreme Court has never found that a

citizen could be reasonably detained strictly because of personnel assignments or

“designations” of particular officers within a police department.     Namely, this

Court should determine whether a thirty minute detention by an officer with

superior expertise and knowledge is reasonable under the Fourth Amendment in

order to wait for an officer with inferior knowledge and less experience but had

the personnel assignment of being an “designated DWI Unit.” This investigation
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was not conducted more efficiently or enhanced by waiting for thirty minutes for

the arrival of the “designated DWI Unit” HPD Officer Sanchez. Officer Musket

had no video recording equipment and neither did Officer Sanchez. Legitimate

law enforcement purposes have never been defined by this Court under the

reasonableness standard of the Fourth Amendment and the courts of appeals have

improperly expanded permissible legitimate law enforcement purposes.

                            GROUND FOR REVIEW

Is it reasonable under the Fourth Amendment for an officer with superior

expertise conducting DWI investigations to detain a suspected intoxicated

driver for thirty minutes to wait for another officer with inferior DWI

expertise with no video recording equipment?

      The First Court of Appeals ignores the fact that the thirty minute delay

waiting for “designated DWI Unit” did not directly effectuate the purpose of the

detention — after the delay an officer with inferior expertise arrived with no

necessary video equipment.        This Court has the opportunity to define the

permissible of legitimate law enforcement purposes during warrantless detentions

in Texas under the Fourth Amendment.           The entire purpose of a warrantless

detention by one officer is to delay to allow for another officer to arrive in order to

elevate the investigation through superior knowledge, expertise or equipment —

thereby, making the delay a worthy and reasonable endeavor.


                                          !8
      The sole reason for the thirty minute delay of Appellant was waiting for the

“designated DWI Unit” to arrive the scene. Both Officers Muskiet and Sanchez

did not have video recording devices on their HPD patrol vehicles. Musket never

testified he felt that he was in danger or needed back-up officers for officer safety

purposes. No evidence was presented that the “designated DWI Unit” had superior

training or experience, in fact, the opposite was true. Officer Muskiet (the initial

officer) had conducted far more DWI investigations in his career than Officer

Sanchez.      Muskiet testified that he was fully qualified to conduct DWI

investigations and had done so many occasions and could efficiently and

effectively investigate Appellant’s suspected intoxication. (RR III 38, 47). Nothing

prevented the fully trained and available officer from investigating Appellant

except Muskiet calling in for a “DWI Unit” - anticipating and expecting an officer

with superior knowledge and expertise (like a HPD DWI task force officer) to

arrive.    HPD Officer Sanchez’s investigation at the scene was a total of eight

minutes compared to the delay of 30 minutes waiting for her arrival. She failed to

even offer the Appellant the full battery of the three standardized field sobriety

tests — contrary to her training, again, demonstrating her detriment to the

investigation.

      In United States v. Sharpe, 470 U.S. 675 (1985), the U.S. Supreme Court

found that the patrol officer was justified in waiting for the DEA agent to arrive

because he knew about the investigation and had superior training, knowledge, and
                                         !9
experience in handling narcotics investigation. Id. at 687. The Supreme Court’s

standard in Sharpe exemplifies the direct nature of the delay — it enhanced and

furthered the investigation in order to be conducted by an expert officer.

Appellant’s case is the reverse of the officers involved in Sharpe - the thirty minute

delay was spent waiting for an officer with inferior training, knowledge and

experience handling DWI investigations.          Court of appeals in Texas have

improperly expands the U.S. Supreme Court’s definitions of legitimate law

enforcement purposes in order to find that legitimate law enforcement purposes

existed in Appellant’s case.

      Courts of Appeals throughout Texas have routinely affirmed warrantless

detentions based on the reasonable detention of DWI suspects while waiting for a

DWI Task Force officer to arrive at a scene. Bullock v. State, 426 S.W.3d 226 (Tex.

App.—Houston [1st Dist.] 2012, no pet.); Hartman v. State, 144 S.W.3d 568, 573

(holding that a five to fifteen minute delay in DWI investigation so another officer

could arrive at the scene with a video camera served a legitimate law enforcement

purposes); Belcher v. State, 244 S.W.3d 531, 541 (Tex. App. Fort Worth 2007, no

pet.) (holding that the initial officer asked the suspect questions in furtherance of

the DWI investigation, such as where the suspect had been drinking, where he had

been prior to the stop and where he was going. Also the initial officer had less

experience and was less efficient at conducting DWI investigations.); Smith v.

State, No. 03-06-00085-CR, 2007 WL 700834, at 3–4, Tex. App.—Austin Mar. 7,
                                         !10
2007, pet. ref.’d)(mem. op., not designated for publication)(holding an

investigative delay waiting for a rookie officer for the purpose of training was

reasonable because it further a legitimate law enforcement purpose.) [emphasis

added].

      In Belcher v. State, the court held that a twenty-seven minute delay waiting

for a more experienced officer who could perform the investigation quicker was

not unreasonable in duration and served a legitimate law enforcement purpose.

Belcher v. State, 244 S.W.3d 531, 540-541 (Tex. App.—Fort Worth 2007, no pet.).

Inherently, DWI task force officers are experts in efficiently investigating,

identifying, conducting standardized field sobriety tests, documenting and

testifying about their findings in court. The delay in Belcher is directly justified

and effectuated by an improvement in the investigation as a result of it being

conducted by an officer with more DWI investigation expertise. The distinction in

Appellant’s case occurs because the delay was waiting for a non- DWI Task Force

officer — this distinction is never discussed in Appellant’s case. The delay in the

Hartman case was directly justified as legitimate law enforcement purposes by the

assistance of waiting for the second officer with a video recording equipment to

arrive at the scene. Again, neither Officer Muskiet or Sanchez had video recording

equipment, therefore, no directly related investigative tool caused the delay.

      In Bullock v. State, 426 S.W.3d 226 (Tex. App.—Houston [1st Dist.] 2012,

no pet.), specifically involved a delay waiting for a DWI task force officer after the
                                         !11
initial officer had the suspect perform the HGN test (a standardized field sobriety

test), he first called for a DWI task force officer and even made a second follow-up

call during the delay to check on the status of the DWI task force officer.

Appellant’s case is factually distinguishable on many levels from Bullock (besides,

there is no DWI task force officer whatsoever); including the lack of investigative

activity taken by Muskiet. Musket was fully trained and qualified to have had

Appellant perform the HGN standardized field sobriety test during the delay but he

simply waited instead. Muskiet never made a second call during the delay to

inquiry regarding the arrival time of Sanchez.

      The Court of Appeals’ opinion on pages 12-13 stated the following:

“Muskiet also explained that while a designated DWI Officer is conducting her

investigation, it is the “usual practices” of patrol units to begin completing

necessary paperwork, such as completing a “tow slip” if a defendant’s automobile

must be towed from the scene.”

      However, none of these actions are found in the record as actually being

performed by Muskiet.       No evidence of written paperwork by Muskiet was

presented or offered into evidence by the State during trial. Muskiet never testified

that he actually completed any paperwork in Appellant’s case - including no

mention at all of completing a “tow slip.” Muskiet did not write an Offense Report

or a supplement regarding any investigative actions he undertook. No tow slip was

ever offered into evidence during the trial by the State. Absent from the record is
                                         !12
any mention of whether or not Appellant’s vehicle was towed from the scene.

Therefore, the opinion relied upon non-existent legitimate law enforcement

purposes to justify the thirty minute detention of Appellant. This vague reference

fails to articulate any concrete facts in order to justify Appellant’s detention. The

distinct lack of specific details of legitimate law enforcement purposes undermines

the State’s arguments and the Opinion issued.

      The lack of any diligent investigation into Appellant’s suspected intoxication

by Muskiet also rendered the duration detention unreasonable under the Fourth

Amendment. The length of a temporary investigative detention is generally

considered reasonable as long as the police are diligently engaged in a means of

investigation that is likely to permit the officers to quickly and efficiently confirm

or dispel their reasonable suspicions of criminal activity. Sharpe, 470 U.S. at 686,

Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004). The question is also

whether the law enforcement officer acted unreasonable in failing to choose a less

intrusive method. Hartman, at 574 citing Sharpe, 470 U.S. at 687, (quoting Cady v.

Dombrowski, 413 U.S. 433, 437 (1973). There is no bright line rule as to how long a

traffic stop may reasonably continue; however, courts consider “whether the police

diligently pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to detain the

defendant.” Sharpe, 470 U.S. at 686-87, 105 S. Ct. at 1575-76; see United States v.

Brigham,382 F.3d 500, 511 (5th Cir. 2004).        Musket failed to administer any
                                         !13
standardized field sobriety tests, failed to ask Appellant any questions about her

activities that evening, how many alcoholic drinks she consumed, where she was

coming from, what she had to eat, etc. He did not perform any other actions in

furtherance of the investigation of Appellant’s suspected intoxicated. Muskiet had

thirty minutes which provided him an abundance of time to complete the entire

investigation of Appellant with his DWI expertise.

      The thirty minute detention of Appellant (at her own apartment complex -

with her expectation of returning to her residence) was almost four times as long in

duration as Sanchez’s entire investigation which only lasted eight minutes. The

only action that Musket took was to call for “a designated DWI patrol officer” even

though it caused the thirty minute delay. Muskiet made a single request and then

waited and did not exercise any due diligence to investigate Appellant. He failed

to ask Appellant any questions about her activities that evening, how many drinks

she consumed, where she was coming from, what she had to eat, etc. He did not

perform any other actions in furtherance of the investigation of Appellant’s

suspected intoxicated.     Muskiet had thirty minutes which provided him an

abundance of time to complete the entire investigation of Appellant.

Eavesdropping on Appellant’s phone conversation does not demonstrate any

diligence on Muskiet’s behalf because that was not conducted in furtherance of

investigating her suspected intoxication.


                                            !14
      Sanchez’s inexperience and inadequate knowledge regarding DWI

investigation were repeatedly demonstrated throughout the trial.        The officer

conducted an improper HGN demonstration, she did not know the three phases of

DWI investigation and detection as taught by NTSHSA (RR III 127)., had only

been involved in maybe a total of four prior DWI investigations, she had only been

out the police academy six months prior to Appellant’s arrest, she was not a

member of the Houston Police Department DWI Task Force, there was no video

camera in her car, she needed assistance from Officer McRae, and she signed the

DIC-23 document without actually personally reading it to Appellant.

      It is inherently unreasonable under the Fourth Amendment to wait for an

inexperienced officer whom is not a member of HPD DWI Task Force to arrive to

conduct an investigation when Officer Muskiet, the initial officer, is much more

qualified to continue the investigation without any delay. Muskiet is present at the

scene and fully qualified to investigate Appellant’s suspected intoxicated - nothing

prevented him from continuing. His decision to wait thirty minutes intentionally

delayed the investigation which made it more complex and slower.         The HPD

policy is for patrol units to call for HPD DWI Task Force members to assist them

on scene.    Being labeled as a “DWI Unit” does not mean Sanchez has any

specialized DWI knowledge or training         - she was grossly mis-assigned that

evening. Muskiet failed to comply with HPD policy - the entire reason the DWI

Task Force exists is because of their superior expertise and knowledge regarding
                                        !15
DWI investigations. Muskiet called for a HPD DWI Task Force member to come

to Appellant’s scene. Sanchez was not a member of the HPD DWI Task Force and

had less knowledge than Muskiet which the panel’s opinion fails to analyze or

acknowledge.

      Muskiet never testified that he was purposely holding Appellant for Sanchez

to gain experience as a new officer– contrary to the initial officer in the Smith case

whom purposely waiting for a rookie officer so they could gain experience. Smith,

at 3-4 (unpublished). The record is silent as to whether Muskiet was concerned

about officer safety and was not argued by the State as a reason to justify

Appellant’s detention.

      The mere existence of a police policy alone does not render a particular

search or seizure reasonable or otherwise immune from scrutiny under the Fourth

Amendment. See Sibron v. New York, 392 U.S. 40, 61, (1968) (“The question in

this Court upon review of a state-approved search or seizure is not whether the

search (or seizure) was authorized by state law. The question is rather whether the

search was reasonable under the Fourth Amendment”). A police department whom

assigns officers without any specialized knowledge or expertise in the particular

subject matter should not be allowed to detain citizens pursuant to such a policy —

in order to wait for for an inferior investigator with no necessary equipment.

Delays in an investigation must directly enhance and elevate law enforcement


                                         !16
officers’ investigative efforts, if not, the Fourth Amendment protects citizens from

warrantless detentions.

                                 CONCLUSION

      It is respectfully requested that this Petition be granted, the First Court of

Appeals’ judgment be reversed, and the court ordered to enter findings consistent

with this Court’s opinion.

                                Respectfully submitted:


                                /S/ GARY S. MILLER
                                GARY S. MILLER
                                Attorney for Alyssa Pullen
                                State Bar No: 24051050
                                1018 Preston St., Suite 500
                                Houston, TX 77002
                                phone: (713) 223-4200
                                fax: (713) 568-2820
                                gary@millerdefense.com


                          CERTIFICATE OF SERVICE

      Pursuant to TEX. R. APP. P. 9.5, this certifies that on January 21, 2015, a

copy of the foregoing Petition was mailed to the following address: Assistant

District Attorney Carly Dessauer, Harris County District Attorney’s Office, 1201

Franklin Street, Houston, Texas 77002.

                                      /S/ GARY S. MILLER
                                      GARY S. MILLER


                                         !17
                      CERTIFICATE OF COMPLIANCE

      I, Gary S. Miller, hereby certify that the Appellant’s Petition for

Discretionary Review contains 3,319 words according to Apple Pages 5.1 which

was used to generate this document according to TEX. R. APP. P. 9.4 (3).

                                      GARY S. MILLER /S/
                                      GARY S. MILLER



Date: January 21, 2015




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