No. 11-13-00055-CR

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DAVID LEE CLEMENT, JR., Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Wise County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No. 13803300

STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

Bar I.D. No. 24031632

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512-463-1660 (Telephone)

512-463-5724 (Fax)

PD-0681-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/3/2015 3:51:59 PM

Accepted 6/4/2015 11:24:32 AM

ABEL ACOSTA

CLERK
IDENTITY OF JUDGE, PARTIES, AND COUNSEL

* The parties to the trial court’s judgment are the State of Texas and Appellant,

David Lee Clement, Jr.

* The trial Judge was Hon. John H. Fostel.

* Trial counsel for the State was District Attorney Gregory Lowery and Assistant

District Attorneys Jay Lapham and Tim Cole, 101 N. Trinity, Suite 200,

Decatur, Texas 76234.

* Counsel for the State before the Court of Appeals was Assistant District

Attorney Lindy Borchardt, 101 N. Trinity, Suite 200, Decatur, Texas 76234,

and Stacey M. Goldstein, Assistant State Prosecuting Attorney, P.O. Box

13046, Austin, Texas 78711.

* Counsel for the State before the Court of Criminal Appeals is Stacey M.

Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,

Texas 78711.

* Counsel for Appellant in the trial court and before the Court of Appeals was

Jim Shaw, 916 W. Belknap, Fort Worth, Texas 76102.
TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Does a suppression motion’s mere citation to the Fourth Amendment and

probable cause, or a belated closing argument that anything after the

“stop” be suppressed due to lack of probable cause for “arrest,” preserve

an illegal arrest claim?

2. Did the lower court err by basing its illegal arrest holding on the officer’s

subjective reasoning rather than the objective facts he articulated that

routinely support a DWI arrest?

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-15

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX A (Court of Appeals Opinion on Original Submission)

APPENDIX B (Court of Appeals Opinion on Rehearing)

i
INDEX OF AUTHORITIES

Cases

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . 14 n.18

Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . 9 n.6

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 2671 (Tex.

App.—Eastland 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 4801 (Tex.

App.—Eastland 2015, on reh’g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . 14 n.19

Devenpeck v. Alford, 543 U.S. 146 (2004). . . . . . . . . . . . . . . . . . . . . . . . 13 n.14, 15

Douds v. State, PD-0857-14 (submitted March 18, 2015).. . . . . . . . . . . . . . . 12 n.11

State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 12 n.12, 13

State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013).. . . . . . . . . . . 9 n.6, 10 n.7

Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . 14 n. 17

Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 11 n.9

Handy v. State, 189 S.W.3d 296 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . 7 n.3

Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005). . . . . . . . . . . . . 10 n.8

Leal v. State, PD-1638-14 (Tex. Crim. App. 2015) (not designated for publication)

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 n.11

Maxwell v. State, 253 S.W.3d 309 (Tex. App.—Fort Worth 2008). . . . . . . . 15 n.20

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . 11 n.9

ii
Navarette v. California, 134 S. Ct. 1683 (2014). . . . . . . . . . . . . . . . . . . . . . . 14 n.16

Ouellette v. State, 353 S.W.3d 868 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 15 n.20

Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . 10 n.7

State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App. 2011).. . . . . . . . . . 7 n.3, 8 n.5

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). . . . . . . . . . . . . . 12 n.12

Statutes and Rules

TEX. CODE CRIM. PROC. art. 28.01 § 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. APP. P. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 n.10

TEX. R. APP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.2, 8 n.4

iii
No. 11-13-00055-CR

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DAVID LEE CLEMENT, JR., Appellant

v.

THE STATE OF TEXAS, Appellee

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney respectfully urges this Court to grant

discretionary review.

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

1
STATEMENT OF THE CASE

After Appellant’s motion to suppress was denied, he was convicted of felony

DWI and sentenced to four years’ imprisonment. The court of appeals reversed the

trial court’s suppression ruling. It held that Appellant’s challenge to the legality of his

arrest was preserved because: (1) his motion cited the Fourth Amendment and

probable cause standard applicable to arrests, and (2) he argued he was arrested

without probable cause in his closing statement at the suppression hearing. It then

held that the arresting officer lacked probable cause because, even though he testified

about several facts that courts consider decisive in assessing probable cause, he

justified the arrest based solely on the smell of alcohol on Appellant’s breath.

STATEMENT OF PROCEDURAL HISTORY

In a published decision, the Eastland Court of Appeals reversed the trial court’s

denial of Appellant’s motion to suppress. Clement v. State, __ S.W.3d__, 11-13-

00055-CR, 2015 Tex. App. LEXIS 2671 (Tex. App.—Eastland 2015). The State

filed a motion for rehearing, which the court of appeals denied in a published opinion.

Clement v. State, __ S.W.3d__, 11-13-00055-CR, 2015 Tex. App. LEXIS 4801 (Tex.

App.—Eastland 2015, on reh’g).

2
FACTS

Trooper Jeff Johnson received a dispatch report about the presence of a

“possible intoxicated” owner of a white Pontiac at a nearby Exxon station around

12:30 a.m. on a Sunday morning. 2 RR 12-13, 16. Soon after, Johnson stopped at

a gas station across the street from the Exxon and spotted the white Pontiac backing

up in the parking lot. 2 RR 13. When Appellant pulled onto the road, Johnson

1

followed. 2 RR 14. Appellant accelerated quickly, and Johnson checked Appellant’s

speed on his radar unit. 2 RR 14. Appellant was traveling 62 m.p.h. in a 55 m.p.h.

zone. 2 RR 14. When Johnson activated his overhead lights, 2 RR 19, Appellant

pulled onto the right shoulder and almost “struck” the guardrail before stopping. 2 RR

23.

Johnson told Appellant he stopped him for speeding. 2 RR 25. Johnson smelled

alcohol on Appellant’s breath, and he and Appellant discussed what Appellant had

to drink. RR 25, 27. Appellant declined to participate in any field sobriety tests. 2

RR 26. Johnson agreed with defense counsel’s statement that he arrested Appellant

for DWI “based on the odor of alcohol on his breath.” 2 RR 25-26.

The trial court denied Appellant’s motion to suppress. 2 RR 31.

The Pontiac was the only other vehicle in the lot besides a local police unit. 2

1

RR 17.

3
GROUNDS FOR REVIEW

1. Does a suppression motion’s mere citation to the Fourth Amendment and

probable cause, or a belated closing argument that anything after the

“stop” be suppressed due to lack of probable cause for “arrest,” preserve

an illegal arrest claim?

2. Did the lower court err by basing its illegal arrest holding on the officer’s

subjective reasoning rather than the objective facts he articulated that

routinely support a DWI arrest?

ARGUMENT

Court of Appeals on Original Submission

Appellant alleged, among other things, that his arrest was not supported by

probable cause. Clement, 2015 Tex. App. LEXIS 2671, at *9. On original

submission, the court of appeals addressed preservation sua sponte and held that

Appellant preserved his claim. Id. at *13 n.5. The court then held that the trial court

erred to deny Appellant’s suppression motion. Id. at *15. The court observed that,

while Johnson stated that the odor of alcohol on Appellant’s was a “factor” in his

decision to arrest Appellant, “the record is silent as to what other factors Trooper

Johnson may have relied upon . . . .” Id. at *15-16 (emphasis in original).

Continuing, the court stated:

To hold otherwise would require us to speculate on what factors, if any

Trooper Johnson may have relied upon in arresting Appellant, including

his refusal to perform field sobriety tests, Appellant’s response to the

question of what he had been drinking, Appellant’s speeding violation,

and Appellant’s act of almost striking the guardrail.

4
Id. at *16.

Court of Appeals Rehearing

On rehearing, the State claimed the court of appeals erred to hold that

Appellant’s arrest challenge was preserved because his objection was neither specific

nor timely. State’s Motion for Rehearing, at 2-6. The State also argued, in the

alternative, that the court improperly applied a subjective standard of review and

consequently erred to hold Appellant’s arrest was not supported by probable cause.

State’s Motion for Rehearing, at 6-8. The court of appeals disagreed and denied the

State’s motion. See generally, Clement, 2015 Tex. App. LEXIS 4801, at *1-13.

1. Appellant’s illegal arrest complaint was not properly preserved.

Appellant filed a pretrial motion to suppress. 1 CR 18-19. In it, he argued:

the stop of Defendant was without a warrant or probable cause. There

was no probable cause based upon acceptable scientific protocol.

Further, the so-called-tipster was not shown to be credible. The officer

did nothing to corroborate the tip from the unknown informant.

1 CR 19.

At the beginning of the suppression hearing, Appellant asked the State to

stipulate that he was stopped without a warrant. 2 RR 10. The State agreed and

called Johnson to testify. 2 RR 11-16. After establishing that Johnson stopped

Appellant for speeding, the State passed the witness. 2 RR 16. Appellant cross5
examined Johnson about the facts leading up to the stop and then questioned him

about the circumstances leading up to his arrest. 2 RR 16-28.

In closing, the prosecutor asserted: “The radar unit showed his speed over the

posted speed limit, so based on that he had probable cause to stop.” 2 RR 29.

Appellant responded, first addressing the stop:

Well, without calling into account the credibility of the officer’s

ability to recollect, this stop was predicated on an uncorroborated

informant’s tip[] that there was a possible intoxicated driver; no showing

how that person knew they were intoxicated, who it was from, or

whether they were credible. So it gets down to the officer trying to make

a stop.

When he sees the guy driving properly down the street, and he sees

the vehicle being operated correctly, he sees the driver of the vehicle

driving between a white line and the guardrail; a keen sense of driving,

he says; but he pulls him over anyway for speeding; and that’s -- that’s

where the stop is.

He then changed topics and argued:

And he smells alcohol on his breath, so he doesn’t do any tests,

doesn’t do anything. No evidence of intoxication except alcohol on his

breath, and he’s arrested for DWI.

It’s our position that anything after the stop should be suppressed,

because there’s no probable cause for his arrest.

The arrest led to an interview. The interview led to a mandatory

blood draw, based upon the belief that it was his third DWI.

2 RR 30 (emphasis added).

6
Proper preservation is lacking for two reasons: non-specificity and

untimeliness. On rehearing, the court of appeals held that Appellant’s reference to

2

the Fourth Amendment and probable cause standard in his motion to suppress,

combined with his closing argument, were sufficient to preserve error. Clement,

2015 Tex. App. LEXIS 4801, at *4-9.

Given the record here, the court’s determination essentially renders current

preservation standards meaningless.

A. Specificity

While the State carries the burden to justify a warrantless stop or arrest, the

defendant has the (pre-shifting) initial burden of raising a challenge to the validity of

the stop or arrest. Appellant’s motion broadly referencing the Fourth Amendment

3

and probable cause were not sufficient to notify the State and trial court that he was

contesting his arrest. This is especially true given the remainder of the motion. It

explicitly challenged the validity of the stop, scientific protocol and testing, and

See TEX. R. APP. P. 33.1(a)(1)(A) (requiring a complaint to be timely and the

2

reason to be made with “sufficient specificity” to make the trial court aware of it).

State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (“A

3

defendant who alleges a violation of the Fourth Amendment has the burden of

producing evidence that rebuts the presumption of proper police conduct.”); cf. Handy

v. State, 189 S.W.3d 296, 298-99 (Tex. Crim. App. 2006) (the State had no duty to

exhibit the warrant and supporting affidavit because Handy’s boilerplate suppression

motion failed to satisfy his initial burden to prove standing or that the search was

unreasonable on its face).

7
tipster credibility. Notably, it incorrectly stated that the justification for the stop is

measured by probable cause. The explicit items mentioned and the confusion about

the applicable standard for an arrest cuts against the conclusion that the motion can

legitimately be understood as a challenge to an arrest.

Next, Appellant’s closing argument also failed to provide adequate notice that

he was contesting the legality of his arrest. The stated violation and relief requested

are incongruous: A lack of probable cause for the arrest does not support the

requested relief of suppression of anything after the stop. Therefore, as with his

motion, it is unreasonable to conclude that Appellant was challenging and requesting

a ruling on the legality of his arrest.

B. Timeliness

Even assuming that Appellant’s closing remarks should have provided notice

that the validity of Appellant’s arrest was now at issue, that challenge was untimely.

4

Appellant’s suppression motion and stated agenda at the hearing concerned only the

validity of the stop. The State should be entitled to rely on Appellant’s strategically

selected litigation notice when defending against his motion in court. The State

5

See TEX. R. APP. P. 33.1(a)(1)(2).

4

Cf. Robinson, 334 S.W.3d at 779 (“Since appellee never produced evidence of

5

a statutory violation, the State never had the burden to prove that the blood sample

was drawn by a qualified person.”).

8
prepared for the hearing accordingly and limited its questioning to the contested

issue. The arrest issue was outside the scope of the purpose of the suppression

hearing. Therefore, Appellant’s belated complaint about his arrest, thrown in

(disjointedly) at the end of his closing argument, was made too late for purposes of

requesting suppression at the hearing. The State should not have to litigate the

6

merits of an issue on appeal when the defendant did not timely raise the complainedof error in the trial court.

Additionally, Appellant was responsible for timely designating any

suppression issue(s) under Texas Code of Criminal Procedure Article 28.01, Section

2. That provision states that pretrial hearing matters not raised or filed seven days

before the hearing cannot thereafter be raised or filed, except with the court’s

permission and good cause shown. TEX. CODE CRIM. PROC. art. 28.01 § 2. Here,

Cf. State v. Esparza, 413 S.W.3d 81, 87 n.23 (Tex. Crim. App. 2013) (“The State

6

was never alerted that it must satisfy a burden at the pretrial hearing to produce

evidence sufficient to establish scientific reliability. To affirm the trial court’s ruling

that granted the appellee’s motion to suppress on the basis of a failure by the State to

produce evidence under these circumstances is unacceptable.”); Buchanan v. State,

207 S.W.3d 772, 777 (Tex. Crim. App. 2006) (“Nothing about the hearing up to [the

closing argument] would reasonably have alerted the trial court or opposing counsel

that the appellant meant to challenge the legality of his arrest under Chapter 14, as

opposed to the constitutional provisions cited in his written motion to suppress.”).

9
there is no evidence that Appellant made a “good cause” argument to justify his

failure to raise the claim earlier. Unless challenged by a specific objection or motion,

the State need not present evidence to satisfy its ultimate burden with respect to any

viable, potential issue that could be raised by the defendant. If no rule preventing

7

unfair surprise existed, then the State would be saddled with the burden of securing

all the necessary witnesses to address each and every possible legal issue a defendant

could decide to raise at a scheduled hearing. This would have a significant negative

8

impact on judicial resources.

The court of appeals rejected the State’s reliance on Article 28.01, Section 2.

It determined that the State failed to cite any authority stating that Section 2’s

See Pham v. State, 175 S.W.3d 767, 773-74 (Tex. Crim. App. 2005) (“We have

7

long held that the burden of persuasion is properly and permanently placed upon the

shoulders of the moving party. When a criminal defendant claims the right to

protection under an exclusionary rule of evidence, it is his task to prove his case.”)

(internal quotes deleted); cf. Esparza, 413 S.W.3d at 86 (while the proponent of

scientific evidence carries the burden of proving reliability at a pretrial hearing or at

trial, the proponent is not obligated to satisfy the burden until the opponent objects on

the basis of reliability). Nor should suppression hearings be treated as a mechanism

for discovery.

Cf. Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex. Crim. App. 2005) (State’s

8

failure to provide TEX. R. EVID. 404(b) notice indicates that it does not think an

extraneous offense is relevant, thereby relieving the defendant of having to prepare

to defend against it).

10
timeliness requirement trumps the timeliness requirements for preservation under

Texas Rule of Appellate Procedure 33.1. Clement, 2015 Tex. App. LEXIS 4801, at

*9. It also held that the State could not rely on this theory to justify the trial court’s

ruling because it failed to present this argument in the trial court. Id. at *9-10.

First, there is no procedural default, as the State was the winning party in the

trial court. Second, Article 28.01, Section 2 is not trumped by Rule 33.1. It is a

9

statute, addressing the time requirement for raising issues to be heard at a pretrial

hearing, and thus trumps Rule 33.1 according to the hierarchy of laws.

10

This Courtshould grant review to refine pre-trialsuppression issue preservation

requirements. Though a large portion of the Court’s docket includes pretrial

suppression claims, the Court has not fully fleshed out the timeliness requirements

as it relates to the moving party’s burden, judicial economy, orderly hearings,

Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002) (“‘Ordinary

9

notions of procedural default’ do not require a prevailing party to list or verbalize ‘in

the trial court every possible basis for upholding’ its decision.”) (quoting State v.

Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998)).

See TEX. R. APP. P. 2 (a court must not construe the authority of an appellate

10

court to suspend the Rules of Appellate Procedure “to suspend any provision in the

Code of Criminal Procedure”).

11
confusion of the issues, and fishing expeditions. Further, recent action by the Court

indicates that it has become interested in settling firmer guidelines.

11

2. Alternatively, the court of appeals violated the applicable standards of

review when deciding the legality of Appellant’s arrest.

Addressing the merits on rehearing, the State argued that the court of appeals

violated two basic standards of review in reversing the trial court’s decision: (1) that

the officer’s subjective belief about why the arrest was justified is irrelevant as long

as the objective facts provide a basis for finding probable cause; and (2) that an

12

appellate court is required to defer to a trial court’s implicit factfindings, when

supported by the record, in a light most favorable to the court’s ruling. State’s

13

Motion for Rehearing, at 6-8.

This Court remanded Leal v. State, PD-1638-14 (Tex. Crim. App. 2015) (not

11

designated for publication), in March for the court of appeals to determine whether

Appellant’s motion for new trial, which was considered at a live hearing, preserved

a challenge to the legality of a warrantless blood draw. And in September of 2014,

the Court granted review in Douds v. State, PD-0857-14 (submitted March 18, 2015),

to consider, in part, whether Appellant’s challenge to a warrantless blood draw was

preserved when he filed a boilerplate motion to suppress.

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007) (“The subjective

12

intent or motivations of law enforcement officials is not taken into account when

considering the totality of the circumstances.”); see also State v. Elias, 339 S.W.3d

667, 675 (Tex. Crim. App. 2011) (the appropriate question is “whether the objective

facts would have justified an officer in [the officer’s] shoes in detaining the appellee

. . . .).

Elias, 339 S.W.3d at 673-74.

13

12
The court of appeals rejected the State’s characterization of its analysis. It

explained that it had recognized (on original submission) that the record developed

at the hearing was very limited as to Johnson’s basis for arresting Appellant.

Clement, 2015 Tex. App. LEXIS 4801, at *12. As a result, it faced the “dilemma [of]

conducting an analysis of the totality of the circumstances facing the arresting officer

on a very limited record rather than basing [its] analysis on Trooper Johnson’s

subjective beliefs.” Id.

The court of appeals appears to have missed the distinct nuances between the

objective versus subjective standards. By saying it would be required to “speculate”

as to other factors (besides alcohol on breath) that Johnson relied upon, the court of

appeals necessarily applied an improper subjective standard. See 2015 Tex. App.

LEXIS 2671, at *15-16. “[A]n arresting officer’s state of mind (except for the facts

that he knows) is irrelevant to the existence of probable cause.” Otherwise, “An

14

arrest made by a knowledgeable, veteran officer would be valid, whereas an arrest

made by a rookie in precisely the same circumstances would not.” Here, Johnson

15

testified to all the dispositive facts the court erroneously declined to “speculate”

about:

Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

14

Id.

15

13
• An anonymous citizen-informant called authorities and reported that Appellant

was drunk and would soon be getting on the road in a white Pontiac, and

Trooper Johnson immediately corroborated some of the information when he

found Appellant at the reported location in a white Pontiac. 2 RR 12-14, 16-

16

18.

• The events occurred on a Saturday at 12:30 a.m. 2 RR 12-13.

17

• Appellant was speeding, and it can rationally be inferred that his impaired

mental faculties led him to disregard the speed limit with a police officer

behind him. 2 RR 14, 18.

18

• Appellant almost hit the guard-rail when he pulled onto the road’s shoulder.

19

2 RR 23-24.

See Navarette v. California, 134 S. Ct. 1683, 1689-90 (2014) (a citizen16

informant’s report may have sufficient indicia of reliability depending on details

indicating eyewitness knowledge, whether the location of the subject was confirmed,

the time-line shows that the report was contemporaneous with the reported behavior,

and the report was made on a 911 system that a reasonable officer could assume

would deter false reporting).

See Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (time of day

17

considered as a factor in determining reasonable suspicion of DWI).

See Amador v. State, 275 S.W.3d 872, 879 (Tex. Crim. App. 2009) (citing

18

speeding as a factor supporting probable cause of DWI).

See id. (citing fumbling and slowness of movement as factors supporting

19

probable cause of DWI and concluding that the inference that impairment was the root

cause was reasonable); Curtis v. State, 238 S.W.3d 376, 381 (Tex. Crim. App. 2007)

(citing weaving in and out of a lane as a factor supporting reasonable suspicion of

DWI).

Johnson agreed with Appellant’s attorney’s statement that Appellant exhibited

“pretty keen driving” by avoiding hitting the guardrail because there was barely

enough room for a car between the white line and guardrail. 2 RR 23-24. While the

trial court could have found “keen driving,” it reasonably inferred intoxication.

14
• Appellant told Trooper Johnson he had been drinking. 2 RR 28.

• Appellant’s breath smelled of alcohol. 2 RR 26.

• Appellant refused to take part in any field sobriety tests. 2 RR 26.

20

The combined force of the circumstances above and reasonable inferences

therefrom support the trial court’s denial of Appellant’s motion to suppress. The

court of appeals’ approach to the objective standard in this case conflicts with the

principles underlying that standard and has the resulting effect of usurping trial

court’s role as factfinder. This Court should grant review because the court of

appeals’ analysis is a gross deviation from settled Fourth Amendment appellate

standards of review.

See Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort Worth 2008)

20

(citing refusal to perform field sobriety tests as a factor supporting probable cause of

DWI); cf. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011) (refusal to

take blood test deemed a piece of circumstantial evidence of intoxication for

evidentiary sufficiency purposes).
PRAYER

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals grant

this Petition for Discretionary Review and reverse the decision of the court of appeals.

Respectfully submitted,

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No.13803300

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

Bar I.D. No. 24031632

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512-463-1660 (Telephone)

512-463-5724 (Fax)

16
CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this

document contains 3,198 words, exclusive of the items excepted by TEX. R. APP. P.

9.4(i)(1).

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

17
CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on June 3, 2015, via certified electronic service provider to:

Hon. Lindy Borchardt

Wise County Courthouse

101 North Trinity Street

Suite 200

Decatur, Texas 76234

lindy@co.wise.tx.us

Hon. Jim Shaw

916 West Belknap

Fort Worth, Texas 76102

jimshaw@jimshawlaw.com

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

18
APPENDIX A
DAVID LEE CLEMENT, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 11-13-00055-CR

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

2015 Tex. App. LEXIS 2671

March 20, 2015, Decided

March 20, 2015, Opinion Filed

NOTICE: PUBLISH. SEE TEX. R. APP. P. 47.2(b).

PRIOR HISTORY: [*1] On Appeal from the 271st

District Court, Wise County, Texas. Trial Court Cause

No. CR16160.

COUNSEL: For Appellant: Jim Shaw, Ray Napolitan,

Law Office of Jim Shaw, Fort Worth, TX.

For Appellee: Gregory Lowery, District Attorney, Lindy

Borchardt, Assistant, Decatur, TX; Lisa C. McMinn,

Stacey Goldstein, Assistant State Prosecuting Attorney,

Austin, TX.

JUDGES: Panel consists of: Wright, C.J., Willson, J.,

and Bailey, J.

OPINION BY: JOHN M. BAILEY

OPINION

After a bench trial, the trial court convicted David

Lee Clement, Jr. of felony driving while intoxicated

(DWI). See TEX. PENAL CODE ANN. § 49.09(b) (West

Supp. 2014). The trial court assessed his punishment at

confinement for four years in the Institutional Division of

the Texas Department of Criminal Justice. Appellant

asserts three issues on appeal. In his first issue, Appellant

argues that the trial court erred when it denied his motion

to suppress because the investigating officer lacked

probable cause to arrest him for DWI. Appellant alleges

in his second issue that the trial court erred when it

denied his motion to quash the indictment because the

indictment "alleged a void judgment" as one of

Appellant's prior DWI convictions. In his third issue,

Appellant asserts that the evidence was insufficient to

prove that Appellant had been convicted of two prior

DWI offenses. We uphold the trial court's denial of

Appellant's motion to quash the indictment. However, we

reverse the trial court's judgment and remand the case

because we [*2] conclude that the trial court should have

granted Appellant's motion to suppress.

1

1 The reporter's record indicates that a DVD of

Appellant's arrest was admitted during the

punishment phase of trial. The reporter's record

further indicates that the actual DVD was

"[m]ailed under separate cover" because the file

was too large to transmit electronically. However,

we have no record of the DVD being mailed to

our court, and our efforts to obtain another copy

have been unsuccessful. This omission does not

preclude our consideration of the appeal because a

review of the DVD is unnecessary to resolve the

issues presented to the court.

Background Facts

Appellant was charged with DWI, which was alleged

to have occurred on or about January 30, 2011. The

indictment alleged two previous DWI convictions, one in

2010 from Wise County and one in 1993 from Tarrant

County, to enhance the 2011 offense to felony DWI under

Section 49.09(b)(2) of the Texas Penal Code. PENAL §

49.09(b)(2).

Appellant filed a pretrial motion to suppress the

evidence arising from his arrest. He also filed a motion to

2

quash the indictment, alleging that one of the prior DWI

convictions alleged in the indictment was void. The trial

court heard the motion to suppress and the motion to

quash on [*3] September 25, 2012. The trial court denied

both motions in open court at the end of the hearings on

each motion. The trial court and the parties then

immediately proceeded to trial. The trial began with

Appellant's trial counsel announcing the following

stipulation on the record:

We agreed that we would stipulate that

he was driving and operating a motor

vehicle on a public road or highway in

Wise County on that particular date. We'll
stipulate to the intoxication and his

driving.

And I believe that after that

stipulation, the State's only burden is to

prove that he has two prior convictions,

your Honor.

2 Although it is not an issue in this appeal,

Appellant was subjected to a mandatory blood

draw after his arrest for felony DWI. The Court

of Criminal Appeals recently held that "a

nonconsensual search of a DWI suspect's blood

conducted pursuant to the mandatory-blood-draw

and implied -co nsent p rovisio ns in the

Transportation Code, when undertaken in the

absence of a warrant or any applicable exception

to the warrant requirement, violates the Fourth

Amendment." State v. Villarreal, No. PD-0306-

14, 2014 Tex. Crim. App. LEXIS 1898, 2014 WL

6734178, at *21 (Tex. Crim. App. Nov. 26, 2014),

reh'g granted, 2015 Tex. Crim. App. LEXIS 201

(Feb. 25, 2015); see Burks v. State, No. 02-13-

00560-CR, 2015 Tex. App. LEXIS 99, 2015 WL

115964, at *1 (Tex. App.--Fort Worth Jan. 8,

2015, pet. filed); Forsyth v. State, 438 S.W.3d

216, 223 (Tex. App.--Eastland 2014, pet. ref'd).

Appellant personally [*4] testified that he agreed to

the stipulation, and the prosecutor announced that the

State agreed with the terms of the stipulation, whereupon

the trial court accepted it. The trial court ultimately found

Appellant guilty of felony DWI based upon its

determination that the State had sufficiently proven

Appellant's two prior DWI convictions.

Sufficiency of the Evidence

In his third issue, Appellant challenges the

sufficiency of the evidence to prove that he had

previously been convicted of two prior offenses of

driving while intoxicated. A person may be charged with

3

felony DWI if he has two previous convictions for DWI.

PENAL § 49.09(b)(2). The two prior DWI convictions are

elements of the offense of felony DWI. Martin v. State,

200 S.W.3d 635, 640--41 (Tex. Crim. App. 2006). The

two prior convictions are jurisdictional, as opposed to

mere enhancement allegations. Id. at 640. The State must

prove the two prior DWI convictions at the

guilt/innocence stage of trial in order to obtain a felony

DWI conviction. See Gibson v. State, 995 S.W.2d 693,

696 (Tex. Crim. App. 1999).

3 We are initially addressing Appellant's third

issue because it could potentially result in his

acquittal.

Evidence that a defendant has been convicted of a

prior offense must establish beyond a reasonable doubt

(1) that the prior conviction exists and (2) that the

defendant [*5] is linked to that conviction. Flowers v.

State, 220 S.W.3d 919, 922 (Tex. Crim. App. 2007). The

State may prove a prior conviction in a number of

different ways. Id. at 921--23. The State is not required to

produce a specific document or specific proof because

"[t]here is no 'best evidence' rule in Texas that requires

that the fact of a prior conviction be proven with any

document, much less any specific document." Id. at 921.

The proof that is adduced to establish that the defendant

on trial is the same person named in the prior conviction

"closely resembles a jigsaw puzzle." Id. at 923 (quoting

Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App.

1988)). Standing alone, the pieces usually have little

meaning, but when fitted together, the pieces usually

form the picture of the person who committed the alleged

prior conviction or convictions. Id. The trier of fact fits

the pieces of the jigsaw puzzle together and weighs the

credibility of each piece. Id. Whatever form the State's

proof takes, however, it must be sufficient to prove the

defendant's prior conviction beyond a reasonable doubt.

Id. at 923.

In reviewing the sufficiency of the evidence to

determine whether the State proved the elements of the

offense beyond a reasonable doubt, we apply the Jackson

v. Virginia standard. Brooks v. State, 323 S.W.3d 893,

895--96 (Tex. Crim. App. 2010) (citing Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d

560 (1979)). Under that standard, a reviewing court must

consider [*6] all evidence in the light most favorable to

the verdict and, in doing so, determine whether a rational

justification exists for the jury's finding of guilt beyond a

reasonable doubt. Id. The trier of fact is the sole judge of

the weight and credibility of witness testimony; therefore,

on appeal, we must give deference to the factfinder's

determinations. Id. If the record contains conflicting

inferences, we must presume that the factfinder resolved

such facts in favor of the verdict and defer to that

resolution. Id.

Appellant limits his evidentiary challenge under his

third issue to the contention that the State failed to

affirmatively link him to the Tarrant County conviction.

Specifically, Appellant alleges that the officer that

testified as a fingerprint expert was not able to read the

fingerprint on the judgment from the Tarrant County

conviction and, thus, could not tell if Appellant was

indeed the individual convicted in the Tarrant County

conviction. We conclude that the State offered additional

evidence that sufficiently linked Appellant to the Tarrant

County conviction.

State's Exhibit No. 2 contained a certified Order

Revoking Probation for Appellant's conviction in Tarrant

[*7] County for DWI. State's Exhibit No. 3 consisted of

the Texas Department of Public Safety's Certified

Abstract Record for Appellant. State's Exhibit No. 3

contained Appellant's name, date of birth, address,

driver's license number, dates of arrest, charged offenses,

findings of guilt, and the judicial case identification
number for the Tarrant County conviction. This

information matches the information in the revocation of

probation order arising from the Tarrant County

conviction, with one exception--the Certified Abstract

Record lists the "conviction date" for the Tarrant County

conviction as being December 12, 1994. This was

actually the date that Appellant's probation was revoked

for the Tarrant County conviction.

The charging instrument for the subsequent Wise

County conviction alleged the details of the Tarrant

County conviction. Additionally, the judgment from the

Wise County conviction that Appellant offered into

evidence during the hearing on the motion to quash

specifically states that this was a conviction for a Class A

misdemeanor DWI under Section 49.09(a). See PENAL §

49.09(a). A conviction of a Class A misdemeanor DWI

requires a finding of a prior conviction of DWI. Id. Thus,

Appellant pleaded guilty [*8] to a Class A misdemeanor

in the subsequent Wise County conviction that

specifically alleged the existence of his prior Tarrant

County conviction.

Viewing the evidence in the light most favorable to

the verdict, we conclude that the trial court could have

found beyond a reasonable doubt that Appellant had been

convicted of the two prior DWIs alleged in the

indictment. We overrule Appellant's third issue.

Motion to Quash Indictment

In his second issue, Appellant challenges the trial

court's denial of his pretrial motion to quash the

indictment. Appellant argues that the indictment should

4

have been quashed because the 2010 conviction that was

alleged in the indictment is purportedly void and

therefore could not be used to elevate his 2011 offense to

a felony DWI. He bases this contention on the argument

that the punishment he received for his Wise County

conviction was below the minimum punishment range

for a Class A misdemeanor DWI. In this regard,

Appellant received a punishment of three days in jail,

with the sentence being suspended and Appellant placed

on community supervision for one day. The minimum

range of jail time for a Class A misdemeanor DWI is

thirty days. PENAL § 49.09(a).

4 We are addressing [*9] Appellant's second

issue next because it is jurisdictional in nature.

We review de novo a trial court's ruling on a motion

to quash an indictment because the sufficiency of a

charging instrument is a question of law. Smith v. State,

309 S.W.3d 10, 13--14 (Tex. Crim. App. 2010); State v.

Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

Appellant's challenge to the Wise County conviction fails

as a matter of law under the holding in Rhodes v. State,

240 S.W.3d 882, 892 (Tex. Crim. App. 2007). Rhodes is

applicable because the Wise County conviction was the

result of a plea agreement. The Court of Criminal

Appeals held in Rhodes that "[a] defendant who has

enjoyed the benefits of an agreed judgment prescribing a

too-lenient punishment should not be permitted to

collaterally attack that judgment on a later date on the

basis of the illegal leniency." 240 S.W.3d at 892.

Accordingly, Appellant is prohibited from collaterally

attacking the Wise County conviction on the basis of it

being too lenient. Id. Appellant's second issue is

overruled.

Motion to Suppress

In his first issue, Appellant challenges the trial

court's denial of his motion to suppress. Appellant alleged

as follows in his motion:

For cause, Defendant would show that

the stop of Defendant was without a

warrant or probable cause. There was no

probable cause based upon acceptable

scientific protocol. Further, the so-calledtipster [*10] was not shown to be

credible. The officer did nothing to

corroborate the tip from the unknown

informant.

The suppression hearing began with the prosecutor

acknowledging that the State had the burden of

establishing a valid basis for the arresting officer's

conduct because Appellant was "stopped without

warrant." The prosecutor then called Trooper Jeff

Johnson of the Texas Department of Public Safety as a

witness.

Trooper Johnson testified on direct examination that

he was dispatched at 12:30 a.m. on January 30, 2011, to a

"possible intoxicated driver leaving the store." He arrived

at the Exxon at the intersection of Highway 101 and

Highway 380. While he was making a turn onto Highway

101, Trooper Johnson saw a white Pontiac in the Exxon

parking lot. This vehicle matched the description given to

Trooper Johnson over the radio. Trooper Johnson then

saw "the Pontiac's brake lights come on," and the car

"started backing up." The Pontiac pulled onto Highway

101 driving northbound.

Trooper Johnson pulled behind the vehicle and

noticed that the vehicle "accelerated quickly." Trooper

Johnson testified that he checked the speed of the vehicle

on the radar in his patrol car and that "it was 62 [*11] in

a 55." The posted speed limit on that road was fifty-five

miles per hour. The prosecutor concluded his direct

examination of Trooper Johnson as soon as he elicited

testimony from Trooper Johnson that he stopped

Appellant because of the speeding violation that he

observed. In this regard, it appears that the State treated

Appellant's motion to suppress as solely an attack on the

arresting officer's basis for initiating the stop of

Appellant.

On cross-examination, Appellant's trial counsel

asked Trooper Johnson about an anonymous tip that

Trooper Johnson had overheard on the radio. Trooper
Johnson testified that he stopped Appellant because of

his speed and not because of the anonymous tip about an

intoxicated person. Trooper Johnson further testified on

cross-examination that Appellant "eventually stopped"

after the lights on Trooper Johnson's patrol vehicle had

been "on for a while." Appellant's counsel obtained a

copy of Trooper Johnson's report during crossexamination. Based upon the questions asked during

cross-examination, it appears that Trooper Johnson noted

in the report that Appellant "almost struck the guardrail"

when pulling over. However, Trooper Johnson did not

observe [*12] Appellant weaving in his lane. Appellant's

counsel further elicited testimony from Trooper Johnson

during cross-examination that Appellant refused to

perform any field sobriety tests and that Appellant told

Trooper Johnson what he had to drink. Near the end of

counsel's brief cross-examination, he asked Trooper

Johnson: "So, you arrested him, based upon the odor of

alcohol on his breath?" Trooper Johnson replied in the

affirmative.

At the conclusion of the evidence presented during

the suppression hearing, the trial court received closing

arguments from the attorneys. The prosecutor argued that

Trooper Johnson had "probable cause to stop" Appellant

because of his observation of Appellant's speeding

violation. Appellant's trial counsel responded by arguing

as follows:

And he smells alcohol on his breath, so

he doesn't do any tests, doesn't do

anything. No evidence of intoxication

except alcohol on his breath, and he's

arrested for DWI.

It's our position that anything after

the stop should be suppressed, because

there's no probable cause for his arrest.

On appeal, Appellant does not challenge Trooper

Johnson's basis for initiating the traffic stop. Instead,

Appellant directs his challenge [*13] on the contention

that Trooper Johnson did not have probable cause to

arrest him for DWI.

5

5 The State does not assert, nor do we find, that

Appellant failed to preserve his challenge to the

probable cause supporting his warrantless arrest

by Trooper Johnson.

A defendant seeking to suppress evidence on the

basis of an alleged Fourth Amendment violation bears

the initial burden of rebutting the presumption of proper

police conduct. Young v. State, 283 S.W.3d 854, 872

(Tex. Crim. App. 2009). A defendant meets this burden

by demonstrating that the challenged search or seizure

occurred without a warrant. Id. The burden then shifts to

the State to prove that the search or seizure was

reasonable under the totality of the circumstances.

Amador v. State, 221 S.W.3d 666, 672--73 (Tex. Crim.

App. 2007) (Amador I). This burden may be satisfied by a

showing that one of the statutory exceptions to the

warrant requirement is met. See Torres v. State, 182

S.W.3d 899, 902 (Tex. Crim. App. 2005).

In this case, it is undisputed that no warrant was

issued for Appellant's arrest. As a result, the State bore

the burden of establishing the reasonableness of

Appellant's detention and arrest. See Young, 283 S.W.3d

at 872; Amador I, 221 S.W.3d at 672--73. Under the

Fourth Amendment, a warrantless arrest for an offense

committed in the officer's presence is reasonable if the

officer has probable cause. Amador v. State, 275 S.W.3d

872, 878 (Tex. Crim. App. 2009) (Amador II). "'Probable

cause' for a warrantless arrest exists if, [*14] at the

moment the arrest is made, the facts and circumstances

within the arresting officer's knowledge and of which he

has reasonably trustworthy information are sufficient to

warrant a prudent man in believing that the person

arrested had committed or was committing an offense."

Id. 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. Id. A finding

of probable cause requires more than bare suspicion but

less than would justify conviction. Id. Whether a specific

search or seizure is reasonable or supported by probable

cause is a question of law subject to de novo review.

Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App.

2006).

In the absence of express findings of fact and

conclusions of law, the trial court's denial of Appellant's

motion to suppress constitutes an implicit conclusion by

the trial court that the State carried its burden of proving

that, under the totality of the circumstances, Trooper

Johnson's warrantless arrest of Appellant was supported

by probable cause for an offense committed in his

presence. Amador II, 275 S.W.3d at 879. Our task is to

determine whether the trial court, in so concluding, [*15]

abused its discretion. Id. Because of the very limited

inquiry at the hearing on the motion to suppress regarding

Trooper Johnson's basis for arresting Appellant, we

conclude that the trial court erred in denying the motion

to suppress.

Appellant alleges that Trooper Johnson arrested him

for DWI "based solely upon the odor of alcohol on

Appellant's breath." Appellant additionally contends as

follows in his brief:

Trooper Johnson did not observe

anything abnormal about Appellant's eyes

or speech; nor did he notice if Appellant

swayed when he walked, or any other

signs that might indicate that Appellant

was intoxicated.

We disagree with Appellant's limited view of Trooper

Johnson's testimony. Trooper Johnson simply was not
asked about any physical observations that he made of

Appellant's eyes, speech, or movement; nor was he asked

what effect, if any, these observations may have had on

his decision to arrest Appellant. Trooper Johnson's

affirmative response to the question from Appellant's

trial counsel about the odor of alcohol indicates that it

was a factor he relied upon in making the decision to

arrest Appellant. However, the record is silent as to what

6

other factors Trooper Johnson [*16] may have relied

upon in making the decision to arrest. Whether probable

cause exists to justify a warrantless arrest must be

considered under the totality of the circumstances

surrounding the arrest. Amador II, 275 S.W.3d at 878.

Based on the very limited record developed at the

hearing on the motion to suppress regarding Trooper

Johnson's basis for arresting Appellant, we conclude that

the trial court erred in determining that the State met its

burden of proof to show probable cause for Appellant's

arrest. To hold otherwise would require us to speculate

on what other factors, if any, Trooper Johnson may have

relied upon in arresting Appellant, including Appellant's

refusal to perform field sobriety tests, Appellant's 7

response to the question regarding what he had been

drinking, Appellant's speeding violation, and Appellant's

act of almost striking a guardrail.

6 Appellant cites Domingo v. State, 82 S.W.3d

617, 621--22 (Tex. App.--Amarillo 2002, no pet.),

for the proposition that the odor of alcohol alone

is not sufficient to establish probable cause to

make an arrest for intoxication.

7 See Maxwell v. State, 253 S.W.3d 309, 314

(Tex. App.--Fort Worth 2008, pet. ref'd) (noting

suspect's refusal to perform field sobriety tests as

a factor supporting probable cause to make DWI

arrest).

The State responds to Appellant's challenge to the

probable cause for the arrest by [*17] asserting that the

trial court did not err in overruling Appellant's motion to

suppress because "the record is absent of any evidence

obtained by the State after Appellant's arrest that would

be subject to suppression." Based on this assertion, the

State contends that any error by the trial court in denying

the motion to suppress is harmless. We disagree with the

State's analysis. After the trial court erroneously denied

the motion to suppress, Appellant stipulated to the

allegation that he was driving while intoxicated. In many

respects, Appellant's stipulation is akin to a plea of

guilty. The Court of Criminal Appeals has stated that

appellate courts are not to speculate as to an appellant's

reasons for entering a "guilty" plea or as to whether the

appellant would have done so if the motion to suppress

had been granted. See Holmes v. State, 323 S.W.3d 163,

172--73 (Tex. Crim. App. 2009); McKenna v. State, 780

S.W.2d 797, 799--800 (Tex. Crim. App. 1989); Kraft v.

State, 762 S.W.2d 612, 613--15 (Tex. Crim. App. 1988);

Paulea v. State, 278 S.W.3d 861, 867 (Tex. App.--

Houston [14th Dist.] 2009, pet. ref'd). As long as the

evidence that should have been suppressed would in any

measure inculpate the accused, this court must presume

that the trial court's denial of Appellant's motion to

suppress influenced Appellant's decision to plead "guilty"

and is reversible error. See McKenna, 780 S.W.2d at 799-

-800; Kraft, 762 S.W.2d at 613--15; Paulea, 278 S.W.3d

at 867. The record in this appeal indicates that Appellant

was subjected to [*18] a mandatory blood draw after his

arrest. While the record is silent regarding the results of

the blood draw, we assume that the results were

inculpatory based upon Appellant's stipulation to being

intoxicated--a stipulation that occurred after the motion to

suppress was denied. Accordingly, we presume that the

trial court's erroneous denial of Appellant's motion to

suppress influenced his decision to enter the stipulation.

Therefore, the error is reversible. We sustain Appellant's

first issue.

Conclusion

We conclude that Appellant's conviction was

supported by sufficient evidence. Additionally, we uphold

the trial court's denial of Appellant's pretrial motion to

quash the indictment. However, we sustain Appellant's

first issue challenging the trial court's denial of his

pretrial motion to suppress.

This Court's Ruling

We reverse the judgment of the trial court, and we

remand this cause to the trial court for further

proceedings consistent with this opinion.

JOHN M. BAILEY

JUSTICE

March 20, 2015

Publish. See TEX. R. APP. P. 47.2(b).
APPENDIX B
1 of 99 DOCUMENTS

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

No. 11-13-00055-CR

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

2015 Tex. App. LEXIS 4801

May 7, 2015, Opinion Filed

NOTICE: PUBLISH. SEE TEX. R. APP. P. 47.2(B).

PRIOR HISTORY: [*1] On Appeal from the 271st

District Court, Wise County, Texas. Trial Court Cause

No. CR16160.

Clement v. State, 2015 Tex. App. LEXIS 2671 (Tex. App.

Eastland, Mar. 20, 2015)

JUDGES: Panel consists of: Wright, C.J., Willson, J.,

and Bailey, J.

OPINION BY: JOHN M. BAILEY

OPINION

O P IN IO N O N ST A T E 'S M O TIO N F O R

REHEARING

The State has filed a motion for rehearing wherein it

alleges that Appellant did not properly preserve, for

appellate review, his complaint that his arrest was illegal.

The State bases its preservation contention on two

grounds: (1) that Appellant failed to put the State and the

trial court on notice that he was contesting the legality of

his arrest and (2) that Appellant's presentation of the

contention during the closing argument was untimely

under TEX. CODE CRIM. PROC. ANN. art. 28.01, § 2 (West

2006).

Preservation of error is a systemic requirement on

appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.

App. 2009). If an issue has not been preserved for appeal,

an intermediate court of appeals should not address the

merits of that issue. Id. Even though the State did not

assert a preservation contention in its initial briefing, we

previously reviewed the question of preservation of error

on our own initiative and tacitly addressed it in our

original opinion by listing the instances wherein

Appellant's counsel addressed the probable cause

supporting [*2] Appellant's arrest. See id. at 532-33

("Ordinarily, a court of appeals should review

preservation of error on its own motion."); Jones v. State,

942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997)

("Preservation of error is a systemic requirement that a

first-level appellate court should ordinarily review on its

own motion.").

There are three distinct types of police-citizen

interactions: (1) consensual encounters that do not

implicate the Fourth Amendment; (2) investigative

detentions that are Fourth Amendment seizures of limited

scope and duration that must be supported by a

reasonable suspicion of criminal activity; and (3) arrests,

the most intrusive of Fourth Amendment seizures, that

are reasonable only if supported by probable cause. Wade

v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013);

State v. Woodard, 341 S.W.3d 404, 410-11 (Tex. Crim.

App. 2011). The facts in this appeal essentially present

three "seizures" for the purpose of analysis under the

Fourth Amendment: (1) Trooper Johnson's initial traffic

stop of Appellant; (2) Trooper Johnson's continued

detention of Appellant for the purpose of investigating a

possible offense of driving while intoxicated; and (3)

Trooper Johnson's arrest of Appellant for driving while

intoxicated.

In the context of the three types of police-citizen

interactions described above, Trooper Johnson's initial

stop and then his continued detention of Appellant for

investigative purposes was an "investigative [*3]

detention" that must have been supported by reasonable

suspicion. See Davis v. State, 947 S.W.2d 240, 244-45

1

(Tex. Crim. App. 1997) (If an officer develops reasonable
suspicion during a valid traffic stop that the detainee is

engaged in criminal activity, continued detention is

justified.). Trooper Johnson's subsequent arrest of

Appellant constituted another level of seizure that must

have been supported by the heightened standard of

probable cause in order to satisfy the Fourth Amendment.

See Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex.

Crim. App. 2011) (citing Alabama v. White, 496 U.S.

325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)) ("A

brief investigative detention constitutes a significantly

lesser intrusion upon the privacy and integrity of the

person than a full-blown custodial arrest. For this reason,

a warrantless investigative detention may be deemed

'reasonable' for Fourth Amendment purposes on the basis

of a lesser quantum or quality of information--reasonable

suspicion rather than probable cause.").

1 One might contend that Trooper Johnson's

initial stop of Appellant, followed by his

continued detention of Appellant for investigative

purposes, constituted a single seizure because

they are portions of the same investigative

detention. We are treating them as separate

seizures for the purposes of our analysis because

Appellant challenged Trooper Johnson's basis for

initiating the traffic stop but Appellant [*4] did

not challenge Trooper Johnson's basis for

continuing the investigative stop prior to his

arresting Appellant.

As noted in our original opinion, the State treated

Appellant's written motion to suppress as solely an attack

on the arresting officer's basis for initiating the traffic

stop. In this regard, Appellant's motion to suppress

addressed the credibility of the anonymous tip and its

corroboration by the investigating officer. The prosecutor

easily overcame this contention by establishing that

Trooper Johnson stopped Appellant for a speeding

violation rather than upon reliance on the anonymous tip.

However, Appellant also alleged a lack of probable

cause, the standard that is associated with the required

basis for supporting an arrest. Furthermore, the inquiry at

the hearing on the motion to suppress into Trooper

Johnson's actions did not end with his initial basis for

stopping Appellant. Specifically, Appellant's counsel

inquired on cross-examination about what transpired

after the stop. As we stated in the original opinion:

Appellant's counsel further elicited

testimony from Trooper Johnson during

cross-examination that Appellant refused

to perform any field sobriety tests and

[*5] that Appellant told Trooper Johnson

what he had to drink. Near the end of

counsel's brief cross-examination, he

asked Trooper Johnson: "So, you arrested

him, based upon the odor of alcohol on

his breath?" Trooper Johnson replied in

the affirmative.

During closing arguments on the motion to suppress,

Appellant's counsel argued as follows:

And he smells alcohol on his breath, so

he doesn't do any tests, doesn't do

anything. No evidence of intoxication

except alcohol on his breath, and he's

arrested for DWI.

It's our position that anything after

the stop should be suppressed, because

there's no probable cause for his arrest.

The arrest led to an interview. The

interview led to a mandatory blood draw,

based upon the belief that it was his third

DWI.

We concluded that Appellant preserved his complaint

regarding the probable cause supporting his arrest based

in part on counsel's closing argument to the trial court

that "there's no probable cause for [Appellant's] arrest."

The clearest assertion by Appellant that Trooper

Johnson lacked probable cause to arrest him occurred

during the closing statement when defense counsel said:

"[T]here's no probable cause for his arrest" (emphasis

added). The State contends [*6] that this statement did

not constitute a challenge to the legality of Appellant's

arrest because it followed counsel's request to suppress

"anything after the stop." The State argues that the

alleged violation was incongruous with the requested

relief because the illegality of the subsequent arrest

would not preclude the admissibility of evidence seized

prior to the illegal arrest. The State is essentially

asserting that, when defense counsel made this argument,

Appellant was challenging Trooper Johnson's initial basis

for stopping Appellant. We disagree with the State's very

narrow reading of defense counsel's argument.

Trooper Johnson's arrest of Appellant constituted a

seizure under the Fourth Amendment that required a

showing under the heightened standard of probable

cause. Defense counsel's argument invoked the probable

cause standard in challenging Appellant's arrest. We

disagree that defense counsel's overstatement of the relief

to which he may have been entitled nullified Appellant's

challenge to the legality of his arrest. Defense counsel's

argument suggests that evidentiary items were obtained

as a result of Appellant's arrest, including lab results

from a mandatory blood draw. Accordingly, [*7] the

reference to suppressing evidentiary items recovered

after the stop would apply to those seized after the arrest.

Defense counsel's argument was not the only

reference to Appellant's contention of an illegal arrest. As

noted previously, Trooper Johnson was specifically

asked, "So, you arrested him, based upon the odor of

alcohol on his breath?" Additionally, in Appellant's

written motion to suppress, he referenced probable cause,

the standard associated with arrests under the Fourth
Amendment.

2

2 The Texas Court of Criminal Appeals has

stated that "[o]ne might reasonably question

whether a statement during closing argument

fairly puts the opposing party and the trial judge

on notice that a party is litigating the existence of

probable cause." Amador v. State, 221 S.W.3d

666, 671 n.9 (Tex. Crim. App. 2007) ("Amador

I"). However, the court did not address the

preservation issue in Amador I because the State

did not petition for review on the issue. Id. The

court noted in Amador I that the Beaumont Court

of Appeals decided the preservation issue

adversely to the State, 221 S.W.3d at 671 n.9; see

Amador v. State, 187 S.W.3d 543, 548 (Tex. App.-

-Beaumont 2006), rev'd, 221 S.W.3d 666 (Tex.

Crim. App. 2007). The court's concern expressed

in Amador I is inapplicable to the facts in this

case because of the other instances wherein

Appellant challenged his arrest.

A "point of error on appeal must comport [*8] with

the objection made at trial." Wilson v. State, 71 S.W.3d

346, 349 (Tex. Crim. App. 2002). As stated in Resendez

v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009):

Rule 33.1(a) of the Texas Rules of

Appellate Procedure provides that a

complaint is not preserved for appeal

unless it was made to the trial court "by a

timely request, objection or motion" that

"stated the grounds for the ruling that the

complaining party sought from the trial

court with sufficient specificity to make

the trial court aware of the complaint,

unless the specific grounds were apparent

from the context."

Resendez, 306 S.W.3d at 312 (quoting TEX. R. APP. P.

33.1(a)(1)(A)). "The purpose of requiring a specific

objection in the trial court is twofold: (1) to inform the

trial judge of the basis of the objection and give him the

opportunity to rule on it; (2) to give opposing counsel the

opportunity to respond to the complaint." Id. As

explained in Resendez:

Although there are no technical

considerations or forms of words required

to preserve an error for appeal, a party

must be specific enough so as to "let the

trial judge know what he wants, why he

thinks himself entitled to it, and 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."

Id. at 312-13 (quoting Lankston v. State, 827 S.W.2d 907,

909 (Tex. Crim App. 1992)).

We concluded that Appellant preserved his

complaint of an illegal arrest occurring without [*9]

probable cause because he apprised the trial court of his

complaint at a time when the trial court was in a position

to grant his requested relief. Additionally, Appellant

cited the Fourth Amendment as a basis for his motion to

suppress, thereby alerting the State and the trial court of

the legal basis of his challenge: the Fourth Amendment.

Buchanan v. State, 207 S.W.3d 772, 773, 776 (Tex. Crim.

App. 2006), relied upon by the State, is inapposite. There,

the court essentially held that a motion to suppress based

upon federal and state constitutional principles, not upon

statutory grounds, was not sufficient, in the context of the

motion, to also preserve error under Chapter 14 of the

Code of Criminal Procedure. Buchanan, 207 S.W.3d at

773, 776. Here, the motion and the trial court's ruling

were based upon clearly stated Fourth Amendment

grounds.

With respect to the State's timeliness assertion under

Article 28.01, section 2, the State has not cited any

authority that this timing requirement for pretrial motions

trumps the timeliness requirement for preservation of

error under Rule 33.1. Additionally, the State did not

present this argument to the trial court for consideration,

thereby depriving Appellant of the opportunity to

respond to it. Accordingly, it is not a "theory of law

applicable to the case" that is available to justify the trial

court's erroneous [*10] ruling on Appellant's motion to

suppress. See State v. Esparza, 413 S.W.3d 81, 89-90

(Tex. Crim. App. 2013).

As we noted in our original opinion, a defendant

seeking to suppress evidence on the basis of an alleged

violation of the Fourth Amendment bears the initial

burden of rebutting the presumption of proper police

conduct. Young v. State, 283 S.W.3d 854, 872 (Tex.

Crim. App. 2009); Amador I, 221 S.W.3d at 672. A

defendant meets this burden by demonstrating that the

challenged search or seizure occurred without a warrant.

Young, 283 S.W.3d at 872; Amador I, 221 S.W.3d at 672.

The burden then shifts to the State to prove that the

search or seizure was reasonable under the totality of the

circumstances. Young, 283 S. W.3d at 872; Amador I,

221 S. W.3d at 672-73. The Texas Court of Criminal

Appeals has described the State's burden in this situation

as follows:

When a defendant asserts a search and

seizure violation under the Fourth

Amendment, the defendant bears the

burden of producing evidence to rebut the

presumption of proper conduct by law

enforcement. A defendant can satisfy this

burden with evidence that the seizure

occurred without a warrant. If the

defendant satisfies the initial burden, the

burden then shifts to the State to establish

that the seizure was nevertheless

reasonable under the applicable standard--
either reasonable suspicion or probable

cause.

Woodard, 341 S.W.3d at 412 (emphasis added)

(footnotes omitted) (citing Amador v. State, 275 S.W.3d

872, 878 (Tex. Crim. App. 2009) (Amador II)).

As we stated in our original opinion, "[I]t is [*11]

undisputed that no warrant was issued for Appellant's

arrest. As a result, the State bore the burden of

establishing the reasonableness of Appellant's detention

and arrest." Although the State met its burden to

3

establish the reasonableness of the initial stop, the State

did not develop the record to support the continued

investigatory detention of Appellant after the initial stop

or the subsequent arrest of Appellant. Even though a

portion of the facts pertaining to Appellant's continued

detention and subsequent arrest were developed during

Trooper Johnson's cross-examination, the evidence did

not address "the totality of the circumstances facing the

arresting officer." We reviewed the portion of the

supporting facts adduced at trial and concluded that they

did not constitute probable cause under an objective

standard.

3 The hearing on the motion to suppress began

with the prosecutor stating, "The State will

stipulate that he was stopped without warrant. . . .

And, therefore, the burden shifts to the State for

probable cause of action."

The State additionally contends in its motion for

rehearing that we used the wrong standard for

determining probable cause wherein we stated:

To hold otherwise [*12] would require

us to speculate on what other factors, if

any, Trooper Johnson may have relied

upon in arresting Appellant, including

Appellant's refusal to perform field

so b rie ty tests, [footnote omitted ]

Appellant's response to the question

regarding what he had been drinking,

Appellant's speeding violation, and

Appellant's act of almost striking a

guardrail.

The State contends that this statement indicates that we

relied upon a subjective test rather than an objective test

for determining probable cause. We disagree. The abovequoted statement followed a sentence wherein we

commented "on the very limited record developed at the

hearing on the motion to suppress regarding Trooper

Johnson's basis for arresting Appellant." Simply put, we

were expressing our dilemma in conducting an analysis

of the totality of the circumstances facing the arresting

officer on a very limited record rather than basing our

analysis on Trooper Johnson's subjective beliefs.

Finally, we note that a pretrial motion to suppress

evidence is "nothing more than a specialized objection to

the admissibility of that evidence" that is interlocutory in

nature. Black v. State, 362 S.W.3d 626, 633 (Tex. Crim.

App. 2012). As such, a pretrial motion to suppress

evidence may be the [*13] subject of reconsideration

and revision as is any other ruling on the admissibility of

evidence. Id. Accordingly, the State will not be precluded

from seeking a reconsideration of the suppression on a

more fully developed record upon the remand of this case

to the trial court.

The State's motion for rehearing is denied.

/s/ John M. Bailey

JOHN M. BAILEY

JUSTICE

May 7, 2015

Publish. See Tex. R. App. P. 47.2(b).