Affirmed as Modified and Memorandum Majority and Dissenting Opinions

filed September 2, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00762-CR

TATIANA BAKHOUM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 5

Harris County, Texas

Trial Court Cause No. 2214948

M E M O R A N D U M D I S S E N T I N G O P I N I O N

I respectfully dissent and would reverse the trial court’s ruling based on the 

arresting officer’s judicial admission that he lacked probable cause at the time he 

arrested Appellant. See Maj. Op. at 6-7 (“Appellant further cites Neimeyer’s 

testimony that he did not believe he had probable cause when he placed appellant 

in handcuffs.”); see also Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App.

2005) (describing “judicial admissions” as “formal concessions . . . by a party or 
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counsel that have the effect of withdrawing a fact from issue and dispensing 

wholly with the need for proof of the fact”) (citing 2 John W. Strong et al., 

McCormick on Evidence § 255 (5th ed. 1999)). 

The majority correctly recites that, “The test for probable cause is an 

objective one, unrelated to the subjective beliefs of the arresting officer . . . and it 

requires a consideration of the totality of the circumstances facing the arresting 

officer.” Maj. Op. at 8 (quoting Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. 

App. 2009) (citing Beck v. Ohio, 379 U.S. 89, 97 (1964))). Based thereon, the 

majority concludes we are authorized to ignore the arresting officer’s judicial 

admission that he lacked probable cause then construct post hoc probable cause 

from the facts he knew at the time. I disagree. 

First, the sentence cited by the majority from Amador reveals that we must 

ignore officers’ subjective beliefs when testing “for probable cause” (emphasis 

added); conversely, we are not instructed to ignore officers’ subjective beliefs 

when analyzing the dispositive absence of probable cause. Indeed, Beck 

specifically analyzed whether subjective good faith was sufficient to justify a 

warrantless arrest and naturally concluded it is not. See Beck, 379 U.S. at 97 (“If 

subjective good faith alone were the test, the protections of the Fourth Amendment 

would evaporate, and the people would be ‘secure in their persons, houses, papers, 

and effects,’ only in the discretion of the police.”). Beck therefore instructs us that 

an officer cannot justify a warrantless arrest based on subjective beliefs alone; it 

does not tell us that we must (or even should) also ignore arresting officers’ 

subjective beliefs that they lack probable cause at the time of an arrest. 

This fundamental precept is neither new nor novel. 

When the constitutional validity of an arrest is challenged, it is the 

function of a court to determine whether the facts available to the 
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officers at the moment of the arrest would “warrant a [person] of 

reasonable caution in the belief” that an offense had been committed.

Beck, 379 U.S. at 96 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). 

Here, the constitutional validity of an arrest has been challenged; therefore, we are 

duty-bound to determine whether the facts known to Officer Neimeyer at the time 

he arrested Appellant would warrant a person of reasonable caution in the belief an 

offense had been committed. Id. I conclude Officer Neimeyer’s admission that he 

lacked probable cause (when viewed objectively) is controlling and that the 

majority’s holding to the contrary effectively authorizes law enforcement seizures 

based on “inarticulate hunches”. Terry v. Ohio, 392 U.S. 1, 21-22 (1968) 

(“Anything less [than analyzing the facts against an objective standard] would 

invite intrusions upon constitutionally guaranteed rights based on nothing more 

substantial than inarticulate hunches, a result this Court has consistently refused to 

sanction.”) (citing Beck, 379 U.S. at 89; Rios v. United States, 364 U.S. 253 

(1960); Henry v. United States, 361 U.S. 98 (1959)). 

Whether Appellant’s arrest was constitutional depends “upon whether, at the 

moment the arrest was made, the officers had probable cause to make it — whether 

at that moment the facts and circumstances within their knowledge and of which 

they had reasonably trustworthy information were sufficient to warrant a prudent 

[person] in believing that the [appellant] had committed or was committing an 

offense.” Beck, 379 U.S. at 91 (quoting Brinegar v. United States, 338 U.S. 160, 

175-76 (1949); Henry, 361 U.S. at 102). At the moment the arrest was made, the 

arresting officer believed he did not have probable cause to arrest Appellant. See 

id. at 94 (“[T]he record does not show that the officers saw the petitioner ‘stop’

before they arrested him, or that they saw, heard, smelled, or otherwise perceived 

anything else to give them ground for belief that the petitioner had acted or was 

then acting unlawfully.”). I do not see a way around this conclusion, analysis, or 
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judicial admission. I respectfully dissent.

 

/s/ Meagan Hassan

Justice

Panel consists of Justices Spain, Hassan, and Poissant (Spain, J., majority).

Do Not Publish —Tex. R. App. P. 47.2(b).