Opinion issued December 4, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00956-CR
                           ———————————
                  KERRY BERNARD LAURENT, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


            On Appeal from County Criminal Court at Law No. 15
                           Harris County, Texas
                       Trial Court Case No. 1886153


                                  OPINION

      Appellant, Kerry Bernard Laurent, was charged by information with

interference with public duties.1 Appellant filed motions to quash and to suppress.

After a hearing, the trial court denied the motions. Appellant pleaded guilty


1
      See TEX. PENAL CODE ANN. § 38.15(a) (Vernon 2011).
pursuant to a plea agreement, subject to his right to challenge the ruling on the

motions on appeal. In one issue on appeal, Appellant argues that the trial court

should have granted his motions because the stipulated evidence established that

the State could not prove that there were any public duties with which Appellant

could have interfered.

         We affirm.

                                     Background

         Officer M. Contreras is an officer with the Houston Police Department. He

was driving to work on the morning of March 24, 2013 when he observed a vehicle

on the side of the road, which appeared to have been involved in an accident.

Officer Contreras stopped to investigate. During that time, Appellant drove up, got

out of his vehicle, and became confrontational with Officer Contreras. After

Appellant refused his instructions to leave the scene of the accident, Officer

Contreras arrested Appellant. The parties stipulated at trial that Officer Contreras

was outside of the jurisdiction of the Houston Police Department at all relevant

times.

         After he was charged, Appellant filed a motion, entitling it as both a motion

to quash and a motion to suppress. Appellant argued that, because he was outside

of his jurisdiction, Officer Contreras did not have any duties or authority imposed

or granted by law with which Appellant could have interfered. Appellant asked the



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court “to quash this information for failure to state a cause of action, and to

suppress all evidence obtained by Officer Contreras in this case.”

      The trial court held a hearing on the motions. Appellant and the State

stipulated to the facts relevant to the determination of whether Officer Contreras

was performing any public duties at the time in question. At the end of the

hearing, the trial court denied the motions. A month later, Appellant entered into a

plea agreement with the State subject to his right to appeal the trial court’s denial

of his motions.     The trial court accepted the plea agreement, found appellant

guilty, assessed punishment as time already served, and certified Appellant’s

limited right to appeal.

                           Motion to Quash and to Suppress

      In his sole issue on appeal, Appellant argues that the trial court should have

granted his motions because the stipulated evidence established that the State could

not prove that there were any public duties with which Appellant could have

interfered. The State argues that this complaint has not been preserved for appeal.

We agree.

      A motion to quash challenges whether the charging instrument alleges “on

its face the facts necessary to show that the offense was committed, to bar a

subsequent prosecution for the same offense, and to give the defendant notice of

precisely what he is charged with.” DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.



                                          3
Crim. App. 1988) (emphasis added); see also TEX. CODE CRIM. PROC. ANN.

art. 27.08 (Vernon 2006) (identifying only permissible exceptions to indictments or

informations). It cannot be used to challenge the sufficiency of the evidence to

support an element of the alleged offense. Lawrence v. State, 240 S.W.3d 912, 916

(Tex. Crim. App. 2007); see also State v. Kinkle, 902 S.W.2d 187, 190 (Tex.

App.—Houston [14th Dist.] 1995, no pet.) (holding trial court may not look behind

indictment to determine whether evidence supports indictment).

      A motion to suppress is brought to exclude evidence from trial that was

obtained “in violation of any provisions of the Constitution or laws of the State of

Texas, or of the Constitution or laws of the United States of America.” TEX. CODE

CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). It cannot be used to suppress

evidence on an illegal arrest itself. Woods v. State, 153 S.W.3d 413, 415 n.9 (Tex.

Crim. App. 2005).

      Appellant’s motions did not identify any facial defects in the information,

nor did they identify any evidence obtained as a result of his arrest that should be

excluded from trial. Accordingly, Appellant failed to present any proper grounds

for the trial court to grant a motion to quash or a motion to suppress.




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      Instead, Appellant argued in his motions that the evidence was insufficient

to support at least one element of the charged offense. 2 “The purpose of a pre-trial

motion is to address preliminary matters, not the merits of the case itself.” Id. at

415. A “pre-trial motion, cannot be used to ‘argue that the prosecution could not

prove one of the elements of the crime.’” Lawrence, 240 S.W.3d at 916 (quoting

Woods, 153 S.W.3d at 415). This is true even if the challenge would require only a

legal determination. State v. Boado, 8 S.W.3d 15, 17 (Tex. App.—Houston [1st

Dist.] 1999), pet. dism’d, improvidently granted, 55 S.W.3d 621 (Tex. Crim. App.

2001).   A trial court “grievously errs” if it makes sufficiency-of-the-evidence

determinations pretrial. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim.

App. 1994). We hold that Appellant’s pretrial motions and the subsequent hearing

have not presented anything for our review.

      Appellant points out that, as part of the plea agreement, the State stipulated

before the trial court that it would “not argue on appeal that the issue was not

preserved at the trial court level.” Regardless of whether the State has violated this

stipulated agreement and of whatever consequences may follow from any such


2
      As it applies to Appellant, “[a] person commits an offense if the person with
      criminal negligence interrupts, disrupts, impedes, or otherwise interferes with a
      peace officer while the peace officer is performing a duty or exercising authority
      imposed or granted by law.” PENAL § 38.15(a)(1). Appellant argued in his
      motions that, because he was not operating within the jurisdiction of the Houston
      Police Department, Officer Contreras could not have been “performing a duty or
      exercising authority imposed or granted by law.”

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violation, this Court is required to determine that a matter has been preserved for

appeal before considering the merits of the argument. See TEX. R. APP. P. 33.1(a)

(establishing preservation of complaint at trial court level as prerequisite to

presenting complaint on appeal). Accordingly, preservation of a complaint is a

matter that we must consider regardless of any agreements between the parties to

not brief it.3

       Appellant relies on a Corpus Christi Court of Appeals opinion to argue that a

motion to quash attacking the legal sufficiency of the charging instrument can be

challenged on appeal. See Cuellar v. State, 957 S.W.2d 134 (Tex. App.—Corpus

Christi 1997, pet. ref’d).      In Cuellar, the defendant had been charged with

intoxication manslaughter. Id. at 136. The defendant brought a motion to quash,

arguing the complainant was a fetus “and, therefore, was not an ‘individual’ within

the legal meaning of that term.” Id. The State argued that the matter could not be

considered on appeal because it had been raised in a motion to quash. Id. at 137.

The court of appeals held that, because it had participated in the hearing, stipulated

to evidence, and “agreed to the stipulations ‘in the interests of a speedy resolution



3
       Because the parties did, in fact, brief the matter of preservation, we do not need to
       determine whether an agreement between the parties not to brief the court on a
       matter that the court is required to consider could amount to a violation of the duty
       of candor to the court or would otherwise be void as against public policy. See
       Tex. Disciplinary Rules Prof’l Conduct R. 3.03(a)(4), reprinted in TEX. GOV’T
       CODE ANN. tit. 2, subtit. G, app. A (Vernon 2005) (Tex. State Bar R., art. X, § 9).

                                             6
of questions of law,’” the State was barred from challenging consideration of the

complaint on appeal. Id.

      We begin by noting that the appeal in Cuellar followed a trial on the merits.

Id. at 136. Accordingly, it was entirely proper to consider the issue on appeal,

albeit as a challenge to the sufficiency of the evidence rather than as a challenge to

the motion to quash. We also note that this holding in Cuellar has not been applied

in the 17 years since its issuance. Instead, one court of appeals has declined to

follow it and recognized that the opinion has been strongly criticized. State v.

Rogers, 138 S.W.3d 524, 527 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

(citing 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice

and Procedure § 21.32 (2001)).

      Furthermore, we find the application of the holding in Cuellar to be

unworkable. By applying Cuellar, we would effectively be holding that the State’s

participation in the hearing and stipulating to evidence creates preservation on a

pretrial motion that does not exist. See Rosenbaum, 910 S.W.2d at 948 (holding

“there is no constitutional or statutory authority for an accused to raise and for a

trial court to determine sufficiency of the evidence to support or defeat an alleged

element of an offense” pretrial and trial court “grievously errs” by ruling on

sufficiency of evidence pretrial).




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      Upon such a holding, we would then have to determine how to review this

otherwise nonexistent motion.       As we have held, despite the motion’s title,

Appellant did not actually file a motion to quash or a motion to suppress. We have

no justification, then, to rely on the standard of review for either motion. A motion

to quash does not involve the consideration of evidence. See DeVaughn, 749

S.W.2d at 67 (holding motion to quash challenges facial validity of charging

instrument). Accordingly, its standard of review provides no instruction on how to

review the evidence in this case.

      A motion to suppress is a specialized challenge to the admissibility of

evidence. Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012). Appellant

is not seeking to exclude any evidence.       Accordingly, there is no reason to

conclude that the standard of review for a motion to suppress is applicable here.

Absent further guidance from the Court of Criminal Appeals about whether

preservation can be created in this manner and about the proper standard of review,

we decline to adopt the holding of Cuellar.

      Appellant also argues that “where the parties agree to stipulate to certain

facts and the court accepts that stipulation, where the parties argue the proper

application of the law to those facts, and where the parties agree not to argue the

preservation issue on appeal, the State is precluded from” arguing that the Court

cannot consider the sufficiency of the evidence to support the information. This is,



                                         8
in essence, an estoppel argument. There are at least two forms of estoppel in

criminal cases: estoppel by judgment and estoppel by contract. Ex Parte Parrott,

396 S.W.3d 531, 541 (Tex. Crim. App. 2013). Estoppel by judgment prevents a

party that has accepted the benefits of a judgment from challenging its validity and

from rejecting its burdensome consequences. Id. Estoppel by contract has the

same effect on contracts. Id. A party who accepts the contract’s benefits cannot

later challenge its validity. Id.

      Appellant argues that, by obtaining a guilty plea agreement—and the

subsequent judgment—of guilt when the legal sufficiency of the charged offense is

questionable, the State is estopped from preventing the consideration of the

sufficiency of that evidence when such a review was a condition of Appellant’s

plea of guilt. We reject this argument for the same reasons we reject the argument

of waiver. By applying estoppel to this situation, we would be reviewing the trial

court’s ruling on a matter it is not permitted to consider under a standard of review

that does not exist.

        We are cognizant that the disposition of this opinion frustrates a central

condition of Appellant’s agreement to plead guilty. Appellant has not challenged

on appeal the continuing validity of his plea agreement, however. Additionally,

our disposition does not leave Appellant without any relief for any harm he may

have suffered. See TEX. CODE CRIM. PROC. ANN. art. 11.09 (Vernon 2005).



                                         9
      We overrule Appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Higley, Bland, and Sharp.

Publish. TEX. R. APP. P. 47.2(b).




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