                                                                                     ACCEPTED
                                                                                06-14-00232-CR
                                                                      SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                          4/13/2015 12:00:00 AM
                                                                                DEBBIE AUTREY
                                                                                         CLERK


                  IN THE COURT OF APPEALS FOR THE
          SIXTH JUDICIAL DISTRICT OF TEXAS AT TEXARKANA
                                                                FILED IN
                                                         6th COURT OF APPEALS
                                                           TEXARKANA, TEXAS
    CHRISTI BETH PERRIN              §                   4/13/2015 9:49:00 AM
                                     §                       DEBBIE AUTREY
             APPELLANT                                           Clerk
                                     §          No. 06-14-00232-CR
                   V.                §
                                     §
    THE STATE OF TEXAS               §
             APPELLEE                §




    ON APPEAL FROM THE COUNTY COURT AT LAW 4, COLLIN
COUNTY, TEXAS, AND FROM CAUSE NUMBER 004-82924-2014, THE
HONORABLE DAVID RIPPEL, PRESIDING.



                            APPELLANT’S BRIEF



                                         JOHN L. SCHOMBURGER
                                         STATE BAR NO. 17801540
                                         555 REPUBLIC DRIVE #200
                                         PLANO, TEXAS 75074
                                         PHONE (972) 978-2218
                                         FAX (972) 468-1430
                                         jschomburger@gmail.com
                                         ATTORNEY FOR APPELLANT

    Oral Argument Not Requested




 
                                                                    




                                NAMES OF PARTIES


    Pursuant to Tex. R. App. P. Rule 38.1, the following is a complete list of the

    parties and persons interested in the outcome of this cause:



      1. Christi Beth Perrin, 110 Murchison Street, Farmersville, Texas 75442

         the Appellant;

      2. John Schomburger, 555 Republic Drive #200, Plano, Texas 75074,

         counsel for Appellant on appeal,

      3. Gerald “Gary” Knapp, Knapp Law Firm, PLLC, 2150 S. Central

         Expressway Suite 200, McKinney, Texas 75070, counsel for the

         Appellant at trial,

      4. The State of Texas, by and through Collin County Criminal District

         Attorney Greg Willis, and Assistant Criminal District Attorney John

         Rolater, 2100 Bloomdale Road Suite 200, McKinney, Texas 75071.




                                                                                     1 
                                            




                    TABLE OF CONTENTS


    NAMES OF PARTIES………………………………………………………………….1

    TABLE OF AUTHORITIES………………………………………………………….. 3

    STATEMENT OF THE CASE……………………………………………...………….5

    ISSUE PRESENTED ………………………………………...………………..……….6

    STATEMENT OF FACTS……………………………………………………………...7

    SUMMARY OF THE ARGUMENT……………………………………………..…….9

    APPELLANT’S POINT OF ERROR ONE…………………………………..…….…10

       THE TRIAL COURT ERRED BY DENYING THE APPELLANTS
       MOTION TO SUPPRESS AS THE APPELLANT WAS ILLEGALLY
       STOPPED AND DETAINED

    PRAYER……………………………………………………….………………...……26

    CERTIFICATE OF COMPLIANCE………………………………….………………27

    CERTIFICATE OF SERVICE……………………………………..……………….....27




                                                           2 
                                                    




                             AUTHORITIES

Cases:
 Berkemer v. McCarty,
     468 U.S. 420 (1984)…………………………………………………………………12
 Bouyer v. State,
     264 S.W.3d 265 (Tex.App. -San Antonio 2008)………………………………….14
 Carmouche v. State,
     10 S.W.3d 323, 327-328 (Tex. Crim. App. 2000)………………………………..23
 Corbin v. State,
     85 S.W.3d 272, 276 (Tex. Crim. App. 2002)……………………………………..25
 Crain v. State,
     315 S.W.3d 43, 52 (Tex.Crim.App. 2010)………………….……...……21, 23, 24
 Dahlem v. State,
     322 S.W.3d 685, 691 (Tex. App. – Fort Worth 2010)…………………………..12
 Ford v. State,
     158 S.W.3d 488, 492 (Tex.Crim.App. 2005)…………………………....12, 22, 23
 Garcia v. State,
     43 S.W.3d 527, 530 (Tex.Crim.App. 2001)……………………………………....22
 Hudson v. State,
     205 S.W.3d 600, 604 (Tex. App. – Waco 2006)………………………………....21
 Johnson v. State,
     912 S.W.2d 227, 235 (Tex.Crim.App. 1995)……………………………………..20
 Montanez v. State,
     195 S.W.3d 101, 104 (Tex. Crim. App. 2006)…………………………………..13
 St. George v. State,
     237 S.W.3d 720, 726 (Tex.Crim.App. 2007)………………………………….…22
 Thomas v. State,
     408 S.W.3d 877, 881 (Tex. Crim. App. 2013)…………………..…12, 13, 14, 19


Statutes and Constitutional Provisions:
 Tex. Code of Criminal Procedure § 38.23 ……………………………...….…...21
 Texas Constitution Art. I, section 9, 10 and 19 ……………………………..….21
 U.S. Const. Amend. IV…………………………………………..……………...21




                                                                          3 
                                                               




                     IN THE COURT OF APPEALS FOR THE
             SIXTH JUDICIAL DISTRICT OF TEXAS AT TEXARKANA


    CHRISTI BETH PERRIN                     §
             APPELLANT                      §
                                            §          No. 06-14-00232-CR
                     V.                     §
                                            §
    THE STATE OF TEXAS                      §
             APPELLEE                       §


    TO THE HONORABLE COURT OF APPEALS:


          Appellant, CHRISTI BETH PERRIN, respectfully submits this brief

    pursuant to the Texas Rules of Appellate Procedure in support of her request for

    the court to reverse the ruling of the trial court regarding the Appellant’s Motion

    to Suppress and remand the case to the trial court for further proceedings in

    cause number 004-82924-2014.


                           REFERENCES TO THE RECORD


          References to the Clerk's Record for trial court, cause number 004-

    82924-2014 are designated as (CR page #) and references to the Reporter's

    Record are designated as (RR volume#: page #).




                                                                                      4 
                                                               




                              STATEMENT OF THE CASE

          Appellant Christi Beth Perrin was brought to jury trial on a misdemeanor

    information filed in Collin County Court at Law 4. (CR 9). She was charged with

    DWI, a Class B misdemeanor. (CR 9). The Appellant pleaded not guilty. (RR 2:

    107). A jury heard evidence from both parties and found the Appellant guilty as

    charged. (RR 3:104). The jury then assessed punishment at 6 days in the county

    jail. (CR 76-77). Ms. Perrin now appeals. (CR 79).

 




                                                                                      5 
                                                                  




                                   ISSUES PRESENTED

          The point of error that the Appellant argues is that the Appellant was illegally

    detained when her car was stopped by a police officer without reasonable

    suspicion. The trial court erred by overruling the motion to suppress on this issue.

 




                                                                                             6 
                                                                




    
                               STATEMENT OF FACTS

       The Appellant Christi Beth Perrin was charged and convicted for the Class B

misdemeanor offense of DWI. (CR 9). According to the arresting officer, she was

stopped for driving a few feet after the officer had seen that her car was briefly

unoccupied with the door opened. (RR 2:127, and State’s Exhibit 1). After detaining

her, officers believed she was intoxicated on prescription medications. (RR 2:143).

       The Appellant had traveled from Farmersville to Allen to look for her

boyfriend that she had recently broken up with. (RR 2: 121, 164-165, State’s Exhibit

1). She pulled off on a side road that was used for residents to park their cars at the

400 block of Twin Creeks Drive in Allen. (RR 2:115, 121-122). This was a

residential area with houses, trees, and street lamps. (RR 2: 117). She had left her

car to see if her former boyfriend’s car was in the area. She thought that he was there

visiting a woman who lived in the area. (State’s Exhibit 1).

       The arresting officer first saw Ms. Perrin’s car. (RR 2: 125). He testified that it

was parked, but the door was open and the interior light was on. (RR 2:125). The car,

a black sedan, was unoccupied at that point. (RR 2:125). He turned his car around to

find out why the car was open and unattended. (RR 2:125). He wanted to investigate

whether someone had broken into the car, although on cross examination he

characterized what he was doing as kind of caretaking stuff. (RR 2:125, 155). When

he pulled up to where the car was located, the officer saw Ms. Perrin walk on the

                                                                                          7 
                                                               




side of the road along other vehicles and get in her car. (RR 2:127). She started to

drive off when the officer stopped the Appellant even though the officer did not see

that the Appellant was doing anything illegal. (RR 2:127, 153-155). The video does

not seem to support the officer’s claims. On the video, the door on the car is closed

and not open. (State’s Exhibit 1). Also, there are no other visible cars that can be

seen that the appellant was supposed to be walking next to. (State’s Exhibit 1).

      Nevertheless, after he stopped her, he had her exit the vehicle and noticed that

Ms. Perrin was wearing her polo shirt backwards. (RR 2:128). He interviewed her

asking her what business she had to be traveling from Farmersville to Allen. (RR 2:

130). The officer decided to have Ms. Perrin submit to field sobriety tests. (RR

2:131). The officer arrested her for DWI and drove her to the Allen police station.

(RR 2:143, 145). There, she agreed to give a blood sample and participate in further

tests given by a Drug Recognition Expert (DRE) officer. (RR 2:146, 152,169,170).

      The lab report came back showing prescription type substances in her blood

that were at a therapeutic level. (RR 3: 19, 34, 43-44).




                                                                                         8 
                                                                   




                            SUMMARY OF THE ARGUMENT

           The point of error that the Appellant argues is that the Appellant was illegally

    stopped in her vehicle by on officer who lacked reasonable suspicion to do so.

    Therefore, all of the evidence developed after that illegal stop, which was used to

    prosecute her for Driving While Intoxicated, should have been suppressed by the

    trial court.




                                                                                              9 
                                                               




                              POINT OF ERROR ONE

THE TRIAL COURT ERRED BY DENYING THE APPELLANTS MOTION TO
SUPPRESS AS THE APPELLANT WAS ILLEGALLY STOPPED AND
DETAINED

      The point of error in this case revolves around the Appellants stop by an

officer as she was pulling out of her parking spot. (RR 2: 127) The Appellant was

stopped only feet from the parking spot even though the officer lacked reasonable

suspicion to stop her car. (RR 2: 126-127; State’s Exhibit 1). The trial court therefore

erred in overruling the Appellant’s Motion to Suppress.



Facts of the Stop

      Allen Police Officer Antony Brown was on patrol when he testified that he

noticed a black sedan with the driver’s door open and the light on inside of the car as

it was parked at Twin Creeks in front of a home. (RR 2: 125-126). The video from

the patrol car, however, does not show the car door open; it instead appears to be

closed. (State’s Exhibit 1). It was 12:30 a.m. when he first saw the car and no one

was in the vehicle. (RR 2: 125). The car was located in an inlet area where residents

unusually park. (RR 2: 125). Officer Brown turned around to investigate since he

didn’t know if the car had been broken into. (RR 2: 125-126).

      As he was turning around to get to the vehicle, he testified that he observed a

female walking along other vehicles on the same side of the road. (RR 2:127). Again


                                                                                        10 
                                                                  




the video does not seem to corroborate the officer’s story. In the video you cannot

see any vehicles on the side of the road, and when the patrol car leaves the location

after the arrest, there is not a car to be seen parked against the street. (State’s Exhibit

1).

      When the officer arrived where the car was located, he parked directly in front

of the vehicle of which he estimated was 30 to 40 feet. (RR 2: 126). He also

observed the woman get into the vehicle and saw that she started to drive away. (RR

2: 127). When the car was driving away, Officer Brown’s driver’s door was already

open. (RR 2: 127). He had also already run the license plates on the car and knew

that the address registered to the vehicle was not anywhere in the immediate vicinity;

and so, “I stopped her there then to find out why she left her car sitting there with the

door open and was walking, you know, along the other vehicles on the roadway.”

(RR 2: 127). It was after the officer made the stop of the vehicle that he noticed that

the Appellant had her shirt on backwards. (RR 2: 128). It was at this point that the

officer began to investigate and develop the evidence for the DWI charge. (RR 2:128

– 131).

      Prior to the stop, the car was not parked illegally and the officer conceded that

it is not illegal if the plate was not registered to an Allen address. (RR 2: 154-155).

When he was questioned about his reason for the stop, the officer agreed that he

stopped her to see why the door was open and added to see why she was walking


                                                                                          11 
                                                               




among the other vehicles (although he just sees her walking back toward the car with

the open door), kind of caretaking stuff. (RR 2: 155).




Burden of Proof for the Trial Court

      A warrantless automobile stop is a Fourth Amendment seizure analogous to a

temporary detention, and it must be justified by reasonable suspicion. Berkemer v.

McCarty, 468 U.S. 420 (1984). Once the evidence shows that the stop of the accused

was effected without a warrant, the state has the burden of proof to establish that the

search or seizure was reasonable. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.

2005). An officer conducts a lawful temporary detention when he has reasonable

suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d

488, 492 (Tex.Crim.App. 2005). In this case, the officer’s testimony was clear as to

the reason why he stopped the Appellant’s vehicle. The reason for the stop was

because he saw a car with an open door and a woman walking. (RR 2:155). Because

his actions were based upon what he viewed rather than due to a warrant, the state

must prove that the stop of the Appellant’s vehicle was reasonable.



Preserving Error and Forfeiture of That Preservation

      An adverse ruling on a motion to suppress is ordinarily sufficient to preserve

error. Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). A written order

                                                                                       12 
                                                                 




is not a prerequisite to preserve the court’s denial of the motion to suppress. Dahlem

v. State, 322 S.W.3d 685, 691 (Tex. App. – Fort Worth 2010). Actions or statements

of a trial court can constitute an implicit ruling when they unquestionably indicate a

ruling. Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App. 2006). In this case

the ruling from the court is clear. The trial court specifically ruled on the record that

the motion to suppress was denied, thereby preserving the issue for review. (RR

2:160)

      Once the adverse ruling is preserved, a defendant does not have to specifically

object to the evidence when it is offered at trial. Thomas v. State, 408 S.W.3d 877,

881 (Tex.Crim.App. 2013). However, if counsel indicates that he has “no objection”

to that same evidence it could waive the error that was preserved. Thomas v. State,

408 S.W.3d 877, 881 (Tex.Crim.App. 2013). However, this is not a bright line rule.

Thomas v. State, 408 S.W.3d 877, 885 (Tex.Crim.App. 2013). When a defendant has

taken pains to file a pretrial motion to suppress, develop testimony at a hearing, and

secure an appealable adverse ruling, it is unrealistic to presume that he would likely

forgo the opportunity to vindicate his interests on appeal even if he states “no

objection” to the introduction of evidence that had already been preserved as a point

of error. Thomas v. State, 408 S.W.3d 877, 885 (Tex.Crim.App. 2013).

      Therefore, the rule that a later statement of “no objection” will forfeit earlier

preserved error is context dependent. Thomas v. State, 408 S.W.3d 877, 885


                                                                                          13 
                                                                 




(Tex.Crim.App. 2013). The appellate court should not focus exclusively on the

statement itself, in isolation, but should consider it in the context of the entirety of

the record. Thomas v. State, 408 S.W.3d 877, 885 (Tex.Crim.App. 2013). If the record

as a whole plainly demonstrates that the defendant did not intend, nor did the trial

court construe, his “no objection” statement to constitute an abandonment of a claim

of error that he had earlier preserved for appeal, then the appellate court should not

regard the claim as waived, but should resolve it on the merits. Thomas v. State, 408

S.W.3d 877, 885 (Tex.Crim.App. 2013).

      One example of a “no objection” situation where there was not a waiver of the

preservation of error can be found in Bouyer v. State, 264 S.W.3d 265 (Tex.App. -San

Antonio 2008). In this case, defense trial counsel both said “no objection” when the

targeted evidence was offered and allowed evidence that he was complaining of to be

offered without objection before he secured an adverse ruling from the court. Bouyer

v. State, 264 S.W.3d 265, 268 (Tex.App.”-San Antonio 2008). During a discussion

between the court and defense counsel, the court decided to proceed with the case

and have the suppression hearing at a later time during the trial. Bouyer v. State, 264

S.W.3d 265, 268 (Tex.App.”-San Antonio 2008). Then, before the hearing on the

motion to suppress, defense counsel pronounced that he had “no objection” to

evidence that was going to be subject to the motion to suppress. Bouyer v. State, 264

S.W.3d 265 268 (Tex.App.”-San Antonio 2008). The court thereafter conducted the


                                                                                           14 
                                                                




hearing and denied the motion to suppress. Bouyer v. State, 264 S.W.3d 265, 268

(Tex.App.”-San Antonio 2008). The appellate court recognized that the defendant

raised the suppression issue before the introduction of evidence at trial and the trial

court advised that it would consider the matter at a later time. Bouyer v. State, 264

S.W.3d 265, 268 (Tex.App.”-San Antonio 2008). Then, of course, the court held the

hearing even after the “no objection” statements were made, thus showing that the

court did not consider the issue waived. Bouyer v. State, 264 S.W.3d 265, 268

(Tex.App.”-San Antonio 2008).

      In the case at hand, two witnesses testified before the hearing was held on the

motion to suppress. (RR 2: 113-153). However, a review of the record shows that

this was the procedure that the court decided to follow. The contextual record shows

that there was no forfeiture or waiver of the challenged stop and detention of the

Appellant. Before any introduction of evidence in the case, there was a discussion

concerning the best way to introduce and listen to the video evidence during the trial.

(RR 2:100-101). During the discussion, defense counsel brought to the court’s

attention that the defense had an issue with the stop and that he wanted to urge the

defendant’s motion to suppress. (RR 2:101). Counsel wanted to urge the motion at

“some point” and the court agreed to this suggested procedure. (RR 2:101). With

more specificity as to how to proceed on the motion to suppress, the trial judge

suggested the following during a discussion with defense counsel:


                                                                                          15 
                                                               




      MR. KNAPP: Um, if the Court would like after the officer is done, if you want

to – I mean, I could cross examine him just briefly out of the presence of the jury,

watch the first bit of the video and make the argument. And if we are denied then

obviously we can come back and watch the video with him and I’ll just conduct my

cross-examination of him afterwards.

      THE COURT: Okay. …

      (Discussion about the video)

      THE COURT: Okay. Yeah, we can do that if you want to keep him here for

the extra minute, you know, that one officer, and then we can – then you can make

your motion—

      MR. KNAPP: Just so I’m clear --

      THE COURT: -- if that is what you want to do.

      MR. KNAPP: -- then just so I’m clear then (sic), once she passes the officer,

we can just take a break with the jury?

      THE COURT: Yeah, I’ll just send them out and we’ll stay in here. And if you

have any additional cross examination –

      (Discussion)

      THE COURT: That will be fine. And I can give the jury a short recess.

      MR. KNAPP: Okay.

      THE COURT: And send them out and then we can do our business.


                                                                                       16 
                                                               




      MR. KNAPP: Okay.

      THE COURT: And bring them back.

      MR. KNAPP: You’ve ruled already.

      THE COURT: There you go. I haven’t granted of denied nothing. You know

me Gary, I know.



      This exchange shows that the procedure that the court was going to follow was

for witnesses to testify and therefore some of the evidence of the trial concerning the

contested evidence challenged by the motion to suppress would be admitted before

the court would have a chance to hear and rule on the motion to suppress. So, like the

Bouyer case, there was no waiver by having evidence admitted prior to the motion to

suppress that was targeted by the motion.

      The other issue concerning waiver is the “no objection” response that counsel

gave when the video evidence, lab report evidence, and the blood kit were introduced

after the court denied the motion to suppress. (RR 2: 194, 212: RR 3: 42). It is clear,

though, from the record as a whole that counsel had no intent to waive the error that

he had preserved with the hearing and adverse ruling in the motion to suppress.

      When the efforts of counsel are examined as to the motion to suppress there

can be no mistake that he wanted to preserve the point of error that he raised.

Counsel filed a written motion to suppress (CR 53), alerted the court prior to any


                                                                                      17 
                                                                 




evidence being offered at trial that he wanted to present the motion to suppress to the

court (RR 2: 101), offered evidence for the motion through the arresting officer (RR

2: 153), and asked the court to consider the first portion of the video that was state’s

exhibit 1 (RR 2: 101-102). All of these actions along with a reading of the record as a

whole show that counsel was making the motion to suppress the keystone of his

defense of the Appellant. He had no intent to abandon his suppression issue and his

actions clearly made the court aware of his position. Because the context of the case

shows there was no abandonment, the “no objection” statements should not be

construed to abandon the suppression preservation of error that he secured from the

court.

         There is no articulable reasonable reason in this case why counsel would want

to abandon this point of error. Watching the video evidence of State’s Exhibit 1

makes it seem likely that the Appellant would be convicted of the offense. (State’s

Exhibit 1). There is no doubt that she was driving and little question from the video

evidence that she was impaired. Therefore, the only real defense in this case is the

suppression issue. The interests of justice would not be served if the Appellant’s sole

point of error, that defense counsel clearly made an issue, was not reviewed. Because

it is clear that trial counsel was making his motion to suppress the primary defense at

trial and that the court is aware that counsel is advancing this issue, there is no

waiver or forfeiture of the preserved point of error that was developed in the motion


                                                                                        18 
                                                                




to suppress.

      Although the law and the evidence supports the finding that there was not an

abandonment of the Appellant’s point of error developed through the motion to

suppress, if the court finds that there was a waiver, the Appellant would urge the

court to abandon the “no objection” waiver rule. It serves no real purpose except to

disallow the Appellant of a case to have their complaint heard and considered on

appeal. The Court of Criminal Appeals recognized the criticism the rule has come

under in Thomas v. State, 408 S.W.3d 877, 882 and footnote 16 (Tex.Crim.App.

2013). It is human nature to want to cooperate and be cordial with the trial judge. To

say “no objection” when there is not any additional objection can be said more as a

matter of habit rather as a matter of thought. So an accidental “no objection” can

thereby waive a defendant’s point of error. The “no objection” waiver rule is a

gotcha rule that only really serves to deny an appellant the desired appellate review

of his or her case. That is simply, not justice.

      Still, even if this court does not find that the point of error was preserved, and

if the court declines to abandon the “no objection” waiver rule, there is still

additional evidence that was introduced by the state that the motion to suppress

would have disallowed if granted and this evidence was not waived. Other than what

the arresting officer saw when he testified regarding initially seeing the car, the rest

of the trial was evidence that was developed and occurred after the illegal stop of the


                                                                                           19 
                                                               




Appellant’s vehicle. (See Reporters Record). This includes the remainder of Officer

Brown’s testimony after the motion to suppress was denied, (RR 2: 161 – 176), the

testimony of the Drug Recognition (DRE) Officer (RR 2: 177- 204), the testimony of

the nurse who drew the blood (RR 2:207- 212), the testimony of the chemist who

explained some of the blood tests results (RR 3: 12 – 20), the testimony of another

chemist explaining another part of the blood test (RR 3: 30 – 34), and finally a third

chemist who explained another part of the blood test (RR 3: 37 – 48). All of this

evidence arose out of the stop of the Appellant and would have been suppressed if

the trial court had granted the motion to suppress. Therefore there is significant

evidence that was introduced into the case that was subject to the motion to suppress

and therefore is ripe for review as evidence that should have been suppressed if the

court erred in the denial of that motion. What now remains is the issue of whether

the stop of the Appellant was illegal.




Detention

      A detention occurs when a person yields to the police officer’s show of

authority under a reasonable belief that he is not free to leave to leave. Johnson v.

State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). So the question is whether a

reasonable person in the citizen’s position would have felt free to decline the


                                                                                        20 
                                                                 




officer’s requests or otherwise terminate the encounter. Hudson v. State, 205 S.W.3d

600, 604 (Tex. App. – Waco 2006). The Fourth Amendment to the United States

Constitution protects citizens from unreasonable searches and seizures at the hands

of government officials. Crain v. State, 315 S.W.3d 43, 52 (Tex.Crim.App. 2010),

Fourth amendment to the United States Constitution, Article I, Sections 9, 10 and 19

of the Constitution of the State of Texas, and article 38.23 of the Texas Code of

Criminal Procedure.

      In this case, the Appellant was beginning to drive away in her car when an

officer who had moments before pulled in a position in front of her car and was

outside of his own patrol car, “stopped her there.” (RR 2: 127). By the officers own

testimony he conceded that she was stopped. On the video tape the Appellant is

plainly visible leaving the area but for the officer’s intervention. (State’s exhibit 1).

What the officer does not say but what can be seen on the video is that he was

shining his spotlight onto the Appellant’s car right before she was pulling away from

the curb. (State’s Exhibit 1). The light directed at her car would have been right

before she started to drive her car and right before he stopped her. (State’s Exhibit 1).

The video also shows that the officer was wearing a police uniform with equipment

belt and that he was a much larger person than the Appellant. (State’s Exhibit 1).

     Any reasonable person who was attempting to go about their business and drive

away, but was stopped from proceeding by a uniformed patrol officer in this manner


                                                                                            21 
                                                                  




would be under a reasonable believe that he or she was not free to leave. This

encounter was a detention. So the issue now becomes whether the officer had

reasonable suspicion to authorize the detention of the Appellant as she was trying to

leave.



Reasonable suspicion determination

         Reasonable suspicion exists if an officer has specific articulable facts that,

when combined with rational inferences from those facts, would lead him to

reasonably suspect that a particular person has engaged or is (or soon will be)

engaging in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.

2001). This is an objective standard that disregards any subjective intent of the

officer. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). The officer’s

detention of someone must be justified at its inception. St. George v. State, 237

S.W.3d 720, 726 (Tex.Crim.App. 2007). Although there is not a bright line test as to

exactly when, if the reason for the initial detention is ended, continued detention is

unreasonable. St. George v. State, 237 S.W.3d 720, 727 (Tex.Crim.App. 2007).

         The review of this issue is bifurcated. Garcia v. State, 43 S.W.3d 527, 530

(Tex.Crim.App. 2001). The reviewing court should give almost total deference to a

trial court’s determination of historical and application of law to fact questions that

turn on credibility and demeanor. Garcia v. State, 43 S.W.3d 527, 530


                                                                                          22 
                                                                 




(Tex.Crim.App. 2001). Application of law to fact questions that do not turn upon

credibility and demeanor are reviewed de novo. Garcia v. State, 43 S.W.3d 527, 530

(Tex.Crim.App. 2001).

      In this case under review, the court did not make any findings of fact regarding

the Appellant’s Motion to Suppress. (See RR). When there are no statement of facts,

the review of the evidence will be in a light most favorable to the trial court’s

rulings. Carmouche v. State, 10 S.W.3d 323, 327-328 (Tex. Crim. App. 2000).

      When reviewing whether reasonable suspicion was shown at the trial court,

the reviewing court must be presented with more than a conclusory statement. Ford

v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005). Without specific facts, the

detention cannot be subjected to the more detached, neutral scrutiny of a judge who

must evaluate the reasonableness of a particular seizure in light of the particular

circumstances. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005). For

instance, an officer’s opinion that a vehicle was following too close without specific

articulable facts to support that conclusion is not sufficient to justify a detention for

the traffic offense of following too close. Ford v. State, 158 S.W.3d 488, 493-494

(Tex.Crim.App. 2005).

      Another example shows a situation where there was no reasonable suspicion to

detain a man who was walking at night in a high crime area. Crain v. State, 315

S.W.3d 43, 53 (Tex. Crim. App. 2010). While he was walking an officer saw him


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grab at his waist. Crain v. State, 315 S.W.3d 43, 53 (Tex. Crim. App. 2010). The

officer left to another call but returned. Crain v. State, 315 S.W.3d 43, 53 (Tex. Crim.

App. 2010).When he did return, he shined a spotlight on the man and told him to

come over and talk to me. Crain v. State, 315 S.W.3d 43, 53 (Tex. Crim. App. 2010).

However, there was no evidence that showed that the man was engaging in criminal

activity. Crain v. State, 315 S.W.3d 43, 53 (Tex. Crim. App. 2010). There was

nothing to raise a suspicion that the man was engaged in criminal behavior.

      The appellant’s situation is similar. Although the officer testified that there

was a car with a door open that the officer saw, the only thing the appellant was

observed dong was walking along the road. There was no evidence that she was

engaging in any criminal activity. Even an open car door, if it was even open which

the video tape seems to show closed, doesn’t show more than that – an open car

door. Once she was in her car there was absolutely no evidence presented that she

was committing a crime – the best the officer could say was that he was engaged in a

caretaking function.

      It is also significant to what the officer did not say. He didn’t say that the area

was a high crime area, there were recent car burglaries, there were calls from citizens

reporting crime, or that the appellant did something that could be construed as

engaging in criminal activity or even that she was about to engage in a criminal

activity. What we are left with is a woman who was walking along a road until she


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got into a car and began to drive away. That is something that happens untold times

every day. There was no reasonable suspicion for the detention of the appellant. The

only other thing that could justify a stop is if the officer could have detained the

appellant for a community caretaking reason.



Community Caretaking
      A community caretaking stop does not require the officer to have reasonable

suspicion. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). The

community caretaking exception requires that the police officer was primarily

motivated by a community caretaking purpose and second, whether the officer’s

belief that the individual needed help was reasonable. Corbin v. State, 85 S.W.3d

272, 277 (Tex. Crim. App. 2002). In this case there is absolutely no indication that

the officer thought the appellant needed any help at all, so the community caretaking

exception does not apply.



Conclusion
      The court agreed to a procedure that allowed the motion to suppress to be

heard after officers has testified about matters that occurred after the stop of vehicle.

Since this was the procedure that the court approved, there was no waiver from the

officers testifying to matters of the case before the motion was heard. Likewise, it

was clear that defense counsel wanted to preserve error regarding the motion to


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suppress, so his statement of “no objection” did not waive the preservation of error.

         As to the issue at hand, the officer did not have reasonable suspicion or any

other legal reason to detain the appellant. This was therefore a violation of the

Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution,

Article I, Sections 9, 10 and 19 of the Constitution of the State of Texas and article

38.23 of the Texas Code of Criminal Procedure. Because the stop was illegal, all of

the evidence that was developed after the point of the detention of the car should

have been suppressed and now the case should be reversed and remanded for further

proceedings.

                                         PRAYER

          WHEREFORE, PREMISES CONSIDERED, the undersigned attorney
    requests this Court of Appeals to review the record on regarding this appeal,
    reverse the trial court’s ruling on the motion to suppress and remand this
    case to the trial court for further proceedings.


         Respectfully submitted,



         John L. Schomburger
         Attorney for the Appellant
         BCN 17801540
         555 Republic Drive #200
         Plano, Texas 75023
         jschomburger@gmail.com


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                           CERTIFICATE OF COMPLIANCE
                This 5494 word brief complies with Appellate Rule 9.4(i).



                                                 John L. Schomburger




                               CERTIFICATE OF SERVICE

          I hereby certify that a true copy of the foregoing Brief has been served on the

    Appellate Division of the Collin County District Attorney’s Office, email at

    daappeals@co.collin.tx.us, on April 13, 2015.




                                                 John L. Schomburger




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