                                                                       PD-0681-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                   Transmitted 10/26/2015 11:16:40 AM
                                                     Accepted 10/26/2015 11:20:13 AM
October 26, 2015                                                       ABEL ACOSTA
                        NO. PD-0681-15                                         CLERK




           IN THE COURT OF CRIMINAL APPEALS
                 OF THE STATE OF TEXAS


                   DAVID LEE CLEMENT, JR.,
                                Appellant
                             v.
                    THE STATE OF TEXAS,
                                Appellee

                          ********
              Appealed from Cause Number CR16160
                  271st Judicial District Court
                       Wise County, Texas
               Honorable John H. Fostel, Presiding

                          ********
          APPELLANT’S RESPONSE TO THE STATE
              PROSECUTING ATTORNEY’S
                BRIEF ON THE MERITS

                          ********
                  LAW OFFICE OF JIM SHAW
                      916 W. Belknap Street
                     Fort Worth, Texas 76l02
               (817) 877-0401 FAX (817) 877-0404
                      State Bar No. 24076583
                      Attorneys for Appellant
               TABLE OF CONTENTS

TABLE OF CONTENTS ………………………………………..............   2

INDEX OF AUTHORITIES ……………………………………………..          3

BRIEF BEGIN ………………..……………………………………………             5

STATEMENT REGARDING ORAL ARGUMENT ……………………         5

FACTUAL SUMMARY OF THE EVIDENCE …………………………        6

RESPONSE TO ISSUE ONE ……………………………………………           9

RESPONSE TO ISSUE TWO ……………………………………………           14

CONCLUSION AND PRAYER …………………………………………            18

CERTIFICATE OF SERVICE …………………………………………..         19

CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ………………    20




                        -2-
                  INDEX OF AUTHORITIES

                              (Cases)

Amador v. State,
221 S.W.3d 666 (Tex. Crim. App. 2007)…………………………………               15

Clement v. State,
461 S.W.3d 274 (Tex. App.—Eastland 2015) ……….………………….            9

Clement v. State,
No. 11-13-00055-CR (Tex. App.—Eastland 2015) (op. on reh’g) ……    9

Everitt v. State,
407 S.W.3d 259 (Tex. Crim. App. 2013) …………............…………….      9

Lankston v. State,
827 S.W.2d 907 (Tex. Crim. App. 1992) …………………………….….             13

Layton v. State,
280 S.W.3d 235 (Tex. Crim. App. 2009) …………………………….….              9

Owens v. State,
861 S.W.2d 416 (Tex. App.—Dallas 1993, no pet.) ……………..…….       16

Postell v. State,
693 S.W.3d 462 (Tex. Crim. App. 1985)…………………………………               12

Saathoff v. State,
908 S.W.2d 523 (Tex. App.—San Antonio, 1995 no pet.)..……………      12

Sells v. State,
121 S.W.3d 748 (Tex. Crim. App. 2003)…………………………………               12




                                -3-
                (Articles, Codes, and Constitutions)


Texas Code of Criminal Procedure Art. 28.01 § 1(6) …….……………   11

Texas Code of Criminal Procedure Art. 28.01 § 2 ……….……………     12

Texas Rule of Appellate Procedure 33.1(a)(1)(A) ………………………     9




                                -4-
           IN THE COURT OF CRIMINAL APPEALS
                 OF THE STATE OF TEXAS


DAVID LEE CLEMENT, JR              §
                                   §
V                                  §       NO. PD-0681-15
                                   §
THE STATE OF TEXAS                 §



            Appealed from Cause Number CR16160
           Honorable John H. Fostel, Presiding Judge
                 271st Judicial District Court
                     Wise County, Texas


    APPELLANT’S RESPONSE TO THE STATE
PROSECUTING ATTORNEY’S BRIEF ON THE MERITS


TO THE HONORABLE JUSTICES OF SAID COURT:

     COMES NOW, David Lee Clement, Jr., and respectfully submits

this Response to the State Prosecuting Attorney’s Brief on the Merits.




      STATEMENT REGARDING ORAL ARGUMENT

The Court did not grant oral argument.



                                  -5-
         FACTUAL SUMMARY OF THE EVIDENCE

     On January 30, 2011, Jeff Johnson, a trooper with the Texas

Department of Public Safety, was on duty near a four-way intersection

in Bridgeport, Texas, when he overheard a call on his radio referencing

“a possible intoxicated driver” leaving the Exxon store located at the

northwest corner of the intersection of 101 and 380. [II R.R. at 11-13].

Trooper Johnson later testified that the complaint stated that there was

a possible intoxicated person in the store; it was not described as an

intoxicated driver. [II R.R. at 16]. At the time Trooper Johnson heard

this call, he was “just east” of the intersection; he then proceeded to the

intersection and made a right-hand turn onto 101, going across the

street to avoid the intersection. [II R.R. at 12-13]. While making this

turn, Trooper Johnson noticed a white Pontiac and a Bridgeport Police

vehicle in the parking lot of the Exxon. [II R.R. at 13]. As Trooper

Johnson was turning around, he noticed the Pontiac’s brake lights come

on, the Pontiac start backing up, and ultimately go northbound on 101.

[II R.R. at 13-14]. Trooper Johnson “noticed the vehicle accelerated

quickly” so he “checked the vehicle on the radar.” [II R.R. at 14]. The

radar showed that the vehicle was travelling at a speed of 62 miles per

                                    -6-
hour. [II R.R. at 14]. The posted speed limit in that area is 55 miles per

hour. [II R.R. at 14]. Trooper Johnson did not observe anyone get into

the white Pontiac. [II R.R. at 20]. Trooper Johnson did not go into the

Exxon to check on the possible intoxicated person; rather, he followed

the white Pontiac. [II R.R. at 17]. Trooper Johnson testified that he did

not enter the store because it is in the Bridgeport city limits; as such, he

would have been back-up to the Bridgeport police. [II R.R. at 17].

     Based on the speed at which the Pontiac was travelling, Trooper

Johnson initiated a traffic stop. [II R.R. at 18]. The traffic stop occurred

outside the Bridgeport city limits and in an area where the posted speed

limit is 65 miles per hour. [II R.R. at 18]. Trooper Johnson testified that

the city limits is “several hundred feet” from the Exxon and Trooper

Johnson activated his lights when he and the Pontiac were “several

hundred feet” outside the city limits. [II R.R. at 18]. Trooper Johnson

testified that he did not observe the Pontiac commit any traffic

violations, other than travelling at 62 miles per hour in a 55 miles-per-

hour zone, and the Pontiac did not weave within its lane. [II R.R. at 23].

When the Pontiac pulled over, Trooper Johnson indicated that the

vehicle “almost struck the guardrail;” however, he testified that “there


                                    -7-
is barely enough room for a vehicle” between the white shoulder line on

the road and the guardrail and the vehicle did not hit the guardrail. [II

R.R. at 23]. Trooper Johnson agreed that the ability to position the

Pontiac entirely within the shoulder, not on the white line and not

hitting the guardrail, was “pretty keen driving.” [ II R.R. at 23-25].

Trooper Johnson approached the driver of the Pontiac, informed him

that he was stopped for speeding, and then began investigating whether

the driver was intoxicated. [II R.R. at 25-26]. During this detention, the

driver of the Pontiac was identified as David Lee Clement, Jr.

(Appellant herein). [II R.R. at 56]. As a result of this investigation,

Appellant refused to perform any field sobriety tests. [II R.R. at 26].

Based solely upon the odor of alcohol on Appellant’s breath, Trooper

Johnson arrested Appellant for the offense of driving while intoxicated.

[II R.R. at 26]. After hearing arguments the trial court denied

Appellant’s Motion to Suppress. [II R.R. at 31].




                                   -8-
       APPELLANT’S RESPONSE TO THE STATE
       PROSECUTING ATTORNEY’S FIRST ISSUE
                  PRESENTED

     In its first point, the State argues that Appellant failed to

preserve his challenge to the probable cause for his arrest. [State’s Br.

at 2]. However, the Eastland court of appeals correctly noted, twice,

that Appellant preserved this challenge. Clement v. State, 461 S.W.3d

274, 281 n.5 (Tex. App.—Eastland 2015); Clement v. State, No. 11-13-

00055-CR, at *4-9 (Tex. App.—Eastland 2015) (op. on reh’g).

Specifically, the State and the trial court were put on notice about this

challenge during the hearing on the motion to suppress. A timely,

specific objection is required to preserve an issue for appellate review.

Tex. R. App. P. 33.1(a)(1)(A). The objection must be specific enough to

make the trial judge aware of the complaint. Everitt v. State, 407

S.W.3d 259, 263 (Tex. Crim. App. 2013). This Court has rejected hyper-

technical requirements for preservation. Id. Rather, “all a party has to

do…is to let the trial judge know what he wants, why he thinks he is

entitled to it, and to do so clearly enough for the judge to understand

him at a time when the trial court is in a proper position to do

something about it.” Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim.

                                   -9-
App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.

App. 1992).

     Here, Appellant satisfied the three requirements to preserve his

complaint. While the testimony began by covering Appellant’s initial

detention, the testimony continued beyond the initial traffic stop and

carried through into Appellant’s arrest. [II R.R. at 25-27]. Appellant’s

counsel questioned the officer about field sobriety tests, the odor of

alcohol on Appellant’s breath, and the “DWI routine.” [II R.R. at 25-26].

Specifically, the following exchange occurred between Appellant’s

counsel and Trooper Johnson:

     Q: So, you arrested him, based upon the odor of alcohol on
     his breath?
     A: Yes, sir.
     Q: You didn’t arrest him for speeding, did you?
     A: No, sir.
     Q: You can’t do that, can you?
     A: Sir?
     Q: Can you arrest somebody for speeding?
     A: No, sir.

     [II R.R. at 26-27].

     Appellant’s counsel then finished his cross-examination and the

State was provided an opportunity to question the officer. [II R.R. at

27]. The State declined to do so. [II R.R. at 27]. Additionally, Appellant’s


                                    - 10 -
counsel re-called the officer and asked him questions regarding the

occurrences following Appellant’s arrest. [II R.R. at 28]. Again, the

State declined to ask the officer further questions. [II R.R. at 28]. This

line of questioning is clear and it is evident from the record that

Appellant sought to suppress his arrest as an alternative challenge to

the initial detention. Appellant’s counsel asked questions directly

related to the probable-cause factors and to the investigation following

Appellant’s arrest. Last, in closing argument, Appellant’s counsel

specifically argued that Appellant’s arrest was not supported by

probable cause. Therefore, Appellant’s objection satisfied the specificity

requirement.

     Next, the State Prosecuting Attorney argues that Appellant’s

challenge to his arrest was untimely. [State’s Br. at 10]. For a complaint

to be preserved, the complaining party must make a timely request,

objection, or motion that specifically states the grounds for the ruling,

unless the specific grounds are apparent from the context. Tex. R. App.

P. 33.1(a)(1)(A). A trial court may set a criminal case for a pre-trial

hearing on a defendant’s motion to suppress evidence. Tex. Code Crim.

Proc. art. 28.01 § 1(6). Article 28.01, Section 2 provides that:


                                    - 11 -
     “When a criminal case is set for such pre-trial hearing, any
     such preliminary matters not raised or filed seven days
     before the hearing will not thereafter be allowed to be raised
     or filed, except by permission of the court for good cause
     shown; provided that the defendant shall have sufficient
     notice of such hearing to allow him not less than 10 days in
     which to raise or file such preliminary matters.”

Tex. Code Crim. Proc. art. 28.01 § 2. This provision, however, is not a

mandatory notice provision of 10 days for every pre-trial hearing.

Postell v. State, 693 S.W.2d 462, 465 (Tex. Crim. App. 1985). In other

words, the statute is read to mean that if the defendant has at least

seventeen days’ notice of the pre-trial hearing, then he must file pre-

trial motions at least seven days before that hearing. Sells v. State, 121

S.W.3d 748, 763 (Tex. Crim. App. 2003) (en banc). Furthermore, Article

28.01 is not a mandatory provision; it is merely directed to the trial

court’s discretion. Saathoff v. State, 908 S.W.2d 523, 525 (Tex. App.—

San Antonio 1995, no pet.) (citing Cantu v. State, 546 S.W.2d 621, 621

(Tex. Crim. App. 1977)).

     Here, there is no evidence that the trial court used its discretion to

order the pre-trial hearings. There is nothing in the record indicating

that the judge ordered such a pre-trial hearing. Indeed, the record

shows that the trial court, in its discretion, held the pre-trial hearings


                                   - 12 -
on the day of trial rather than before and the State did not object to

this. [I C.R. at 35]. Moreover, the record indicates that the hearing on

Appellant’s motion to suppress was set, and heard, on the same day the

written motion was filed. [I C.R. at 35]; [II R.R. at 10]. Neither side

objected to the trial court doing so. Therefore, Article 28.01 § 2 is

inapplicable here, and the court of appeals properly rejected the State’s

reliance on this statute. Clement, No. 11-13-00055-CR, at *7.

Appellant’s objection was made during the pre-trial hearing on the

motion to suppress; thus, it was made “at a time when the trial court is

in a proper position to do something about it.” See, Lankston v. State,

827 S.W.3d 907, 909 (Tex. Crim. App. 1992).

     Additionally, Appellant’s challenge to the probable cause for his

arrest was timely and apparent from the context of his cross-

examination, his re-calling of the officer, and his closing argument.

While Appellant’s written motion focused on the validity of the stop, the

scope of the hearing evolved into the validity of the arrest and

ultimately concluded with testimony concerning Appellant’s arrest and

the events that followed. [II R.R. at 25-28]. The State did not object to

this line of questioning and testimony at the hearing. Again, Appellant’s


                                  - 13 -
counsel specifically asked Trooper Johnson, “So, you arrested him,

based upon the odor of alcohol on his breath?” [II R.R. at 26]. The State

did not ask Trooper Johnson any questions after Appellant’s counsel’s

cross-examination. [II R.R. at 27]. After the State rested on the motion

to suppress, Appellant’s counsel re-called Trooper Johnson and

questioned him about the mandatory blood draw and interviewing

Appellant. [II R.R. at 27-28]. Again, the State did not take the

opportunity to further question Trooper Johnson. [II R.R. at 28]. The

State was provided two opportunities to question the officer about what,

if any, factors went into his decision to arrest Appellant. [II R.R. at 27,

28]. In both instances, the State chose not to do so. [II R.R. at 27, 28].

The State was not deprived of the opportunity to present evidence to

support Appellant’s arrest. Conversely, the State was given ample

opportunity to question the arresting officer. As stated above,

Appellant’s counsel re-called the officer and questioned him about

events that occurred following Appellant’s arrest. [II R.R. at 27-28]. The

State was given the opportunity to cross-examine the officer. [II R.R. at

28]. The State, however, had “no further questions” for Trooper

Johnson. [II R.R. at 28]. The burden was on the State to prove that


                                   - 14 -
Appellant was legally arrested and the State simply failed to act by not

questioning the arresting officer concerning Appellant’s arrest.

     For the above reasons, this Court should hold that Appellant

properly preserved this issue for appeal and further hold that the court

of appeals did not err by so concluding.

       APPELLANT’S RESPONSE TO THE STATE
      PROSECUTING ATTORNEY’S SECOND ISSUE
                  PRESENTED

     In its second point, the State argues that objective facts

established probable cause for Appellant’s arrest and that the court of

appeals applied a subjective standard of review. [State’s Br. at 13-14].

However, the court of appeals properly applied the correct standard of

review. Clement, 461 S.W.3d at 281-82. The test for probable cause is an

objective one, unrelated to the arresting officer’s beliefs, and requires

consideration of the totality of the circumstances. Amador v. State, 275

S.W.3d 872, 878 (Tex. Crim. App. 2009). The court of appeals explicitly

declined to speculate on what Trooper Johnson’s beliefs were or other

possible justifications for arresting Appellant. Clement, 461 S.W.3d at

282. Instead, the court properly focused on the objective reason

espoused by Trooper Johnson on the record. Id. Again, Trooper Johnson

                                   - 15 -
testified that he arrested Appellant based on the odor of alcohol on his

breath. [II R.R. at 26]. Trooper Johnson could not have arrested

Appellant for the speeding violation. [II R.R. at 27], see also Owens v.

State, 861 S.W.2d 419, 420 (Tex. App.—Dallas 1993, no pet.).

     Contrary to the State Prosecuting Attorney’s “dispositive facts,”

Trooper Johnson’s testimony revealed only the single basis for

Appellant’s arrest. Trooper Johnson testified that the anonymous phone

call reported an intoxicated person in the Exxon store. [II R.R. at 16].

The anonymous caller did not report that “Appellant was drunk and

would soon be getting on the road in a white Pontiac…” as the State

Prosecuting Attorney asserts. (State’s Br. at 15). The call did not

mention that Appellant was leaving the store, or getting into a white

Pontiac. [II R.R. at 16-17]. Trooper Johnson did not observe anyone get

into the white Pontiac. [II R.R. at 20]. Trooper Johnson stopped the

white Pontiac “for speed.” [II R.R. at 25]. Trooper Johnson smelled

alcohol on Appellant’s breath. [II R.R. at 26]. Appellant did not do any

field sobriety tests and was arrested based upon the odor of alcohol on

his breath. [II R.R. at 26]. Appellant told Trooper Johnson what he had

to drink. [II R.R. at 28]. Trooper Johnson testified that, in pulling over,


                                   - 16 -
Appellant stayed preferably within the shoulder of the road. [II R.R. at

24-25]. Appellant did not violate any other traffic laws, nor was he

weaving within his lane. [II R.R. at 23]. Trooper Johnson’s report

indicated that Appellant “almost struck a guardrail;” however that is

“because the white shoulder line of the guardrail, there’s barely enough

room for a vehicle being there.” [II R.R. at 23].

     Based on the evidence adduced at the hearing, the court of appeals

correctly held that the trial court erred by denying Appellant’s motion

to suppress. The anonymous caller was not a factor in Trooper

Johnson’s decision to detain Appellant. Appellant was speeding.

Appellant was not weaving within his lane or violating any other traffic

laws. Appellant’s “keen driving” allowed him to stop his vehicle on the

shoulder of a road where “there’s barely enough room for a vehicle…” [II

R.R. at 23-24]. Appellant’s breath smelled of alcohol. [II R.R. at 26].

Because of that odor of alcohol, Trooper Johnson arrested Appellant. [II

R.R. at 26]. Considering the totality of the circumstances, Appellant’s

arrest was not supported by probable cause. Based on the record, and

the facts developed at the hearing, the evidence was insufficient to show

that Trooper Johnson had probable cause to arrest Appellant.


                                    - 17 -
     For the above reasons, this Court should find that the court of

appeals applied the correct standard of review, affirm the court of

appeals’ decision, and hold that Appellant’s arrest was not supported by

probable cause.




                  CONCLUSION AND PRAYER

     Appellant prays that the Court of Criminal Appeals affirm the

decision of the court of appeals reversing the trial court’s denial of

Appellant’s Motion to Suppress.



                                  Respectfully submitted,



                                  /s/ Ray Napolitan
                                  RAY NAPOLITAN, Attorney at Law
                                  State Bar Number 24076583

                                  THE LAW OFFICE OF JIM SHAW
                                  916 W. Belknap Street
                                  Fort Worth, Texas 76102
                                  817-877-0401 Fax 817-877-0404
                                  Attorneys for Appellant




                                  - 18 -
                  CERTIFICATE OF SERVICE


     I hereby certify that a true and correct copy of the Brief for
Appellant was delivered electronically to the office of the Wise County
District Attorney and to the office of the State Prosecuting Attorney on
this 26th day of October, 2015.




                                  /s/ Ray Napolitan
                                  RAY NAPOLITAN




                                  - 19 -
    CERTIFICATE OF COMPLIANCE WITH RULE 9.4

     Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), this is to

certify that this brief complies with the volume limitation of Texas Rule

of Appellate Procedure 9.4(i)(2)(B) and the typeface requirements of

Texas Rule of Appellate Procedure 9.4(e). This brief has been prepared

in a conventional typeface, using Microsoft Word, in 14-point New

Century Schoolbook. This brief is computer-generated and does not

exceed 15,000 words. Using the word-count feature of Microsoft Word,

the undersigned certifies that this brief contains 2605 words. The word

count in this Certificate of Compliance excludes the parts of the brief

exempted by Texas Rule of Appellate Procedure 9.4(i)(1).




                                 /s/ Ray Napolitan
                                 RAY NAPOLITAN




                                  - 20 -
