No. 01-13-00546-CR 

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IN THE

FIRST DISTRICT COURT OF APPEALS

HOUSTON, TEXAS

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STEVEN GOLDEN,

Appellant

V.

THE STATE OF TEXAS,

Appellee

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CAUSE NO. 1833897

ON APPEAL FROM THE COUNTY CRIMINAL COURT AT LAW NO. 4

HARRIS COUNTY, TEXAS

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MOTION FOR EN BANC RECONSIDERATION BY 

APPELLANT STEVEN GOLDEN

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 GARY S. MILLER

 Attorney for Steven Golden

 State Bar No: 24051050

 1018 Preston St., Suite 500

Houston, TX 77002

tel: (713) 223-4200

fax: (713) 222-7022

 gary@millerlindsey.com

ACCEPTED

01-13-00546-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/17/2015 1:09:55 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/17/2015 1:09:55 PM CHRISTOPHER A. PRINE Clerk
PROCEDURAL HISTORY OF APPELLANT’S CASE

 Appellant was charged by criminal information with the Class B 

misdemeanor of driving while intoxicated in County Criminal Court at Law No. 4, 

Harris County, Texas. Appellant filed a Motion to Suppress all evidence obtained 

as a result of his warrantless detention and arrest by law enforcement. After a 

pretrial hearing held on June 6, 2013, and June 20, 2013, the trial court denied 

Appellant’s motion. Pursuant to the pre-hearing agreement with the State, 

Appellant entered a guilty plea to 30 days in the Harris County Jail without a fine. 

This appeal was abated and the trial court was ordered to file Finding of Facts and 

Conclusions of Law. The trial court filed Findings of Fact and Conclusions of Law 

on December 2, 2013. A panel issued the Opinion in Appellant’s case on February 

5, 2015.

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PRELIMINARY STATEMENT

 The Panel’s reliance should have been based solely on Deputy Nguyen’s 

knowledge at the inception of the traffic stop - by considering only the information 

actually known by or available to him at that time. State v. Duran, 396 S.W.3d 

563, 568–569 (Tex. Crim. App. 2013). Nguyen’s knowledge was insufficient to 

justify the traffic stop since he lacked any specific articulable facts that a criminal 

offense had or was occurring. Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 

2005). The Panel’s opinion ignored factual distinctions and relied upon 

assumptions in order to equate Appellant’s factual situation to Navarette v. 

California, 134 S. Ct. 1683 (2014). Deputy Nguyen conducted the traffic stop on 

Appellant’s vehicle without a particular and objective basis for suspecting criminal 

activity unlike the state trooper Navarette whom had been informed prior to the 

traffic stop by the 911 dispatcher that “[the suspect] Ran the reporting party off 

the roadway.” The Opinion mistakenly attributes factual observations provided by 

the citizen tipster subsequent to the traffic stop - as being conveyed to Deputy 

Nguyen prior to the traffic stop. 

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GROUNDS: THE OPINION IGNORED DEPUTY NGUYEN’S LACK OF 

KNOWLEDGE OF ANY PARTICULAR AND OBJECTIVE FACTUAL 

BASIS FOR STOPPING APPELLANT’S VEHICLE AT THE INCEPTION

OF THE TRAFFIC STOP 

 Deputy Nguyen had no knowledge regarding Appellant’s driving activities 

at the inception of the traffic stop; therefore, it was factually impossible for him to 

have a particularized and objective basis for suspecting Appellant’s criminal 

activity from the conclusory tip that there might be an “intoxicated driver.” All 

information that theoretically could have justified a traffic stop was acquired from 

Polasek by Deputy Nguyen or Deputy Trevino after Appellant was already 

stopped. Under Naverette, “The Fourth Amendment permits brief investigative 

stops— such as the traffic stop in this case — when a law enforcement officer has 

“a particularized and objective basis for suspecting the particular person stopped of 

criminal activity.” Naverette at 1687, citing United States v. Cortez, 449 U. S. 411, 

417– 418 (1981); see also Terry v. Ohio, 392 U. S. 1, 21–22 (1968). Deputy 

Nguyen testified he only knew the following facts that were relayed to him prior to 

initiating the traffic stop: 

1. A white pickup truck with a stripe. (RR II, 18, 40); 

2. License plate number AU-87773. (RR II, 18); 

3. Maybe “an intoxicated driver”, (RR II, 13); But “I don't remember 

that.” (RR II, 14); 

4. HEB parking lot near Bellaire and Highway 6 (RR, 30); 

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5. Vehicle in motion (RR II, 20). 

That is the extent of Deputy Nguyen’s knowledge at the time of Appellant’s 

detention. Under State v. Duran, “In determining whether an officer is justified in 

making a Terry stop, courts use an objective standard: Would a reasonable officer 

in the same situation believe a crime had been or was being committed? This 

objective standard requires reviewing courts to place themselves in the shoes of the 

officer at the time of the inception of the stop—considering only the information 

actually known by or available to the officer at that time.” Duran at 569. The 

Opinion failed to adequately discuss Deputy Nguyen’s knowledge at the inception 

of the stop; instead, the Opinion mistakenly attributes knowledge to him that was 

not found in the record during his own testimony. Nguyen, in fact, had not been 

informed of of any detailed facts of Appellant’s driving that the Opinion attributed 

to him. Nguyen did not receive “contemporaneously relayed observations” 

between the 911 operator and Polasek as the Opinion misstates on Page 8. Instead, 

the Court should have determined whether,“Information that the officer either 

acquired or noticed after a detention or arrest cannot be considered. A detention is 

either good or bad at the moment it starts.” Id. at 569-570. This factual 

determination was not done at all when considering Appellant’s case. 

The Panel shouldn’t have disregard its responsibility to examine Nguyen’s 

knowledge because there were no direct observations by him of any traffic 

offenses, “Normally, this inquiry ‘presents no significant problem, for most traffic 

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stops are made based upon the direct observations of unambiguous conduct of 

circumstances by the stopping officer.’ But sometimes an issue arises as to what the 

officer actually saw or knew at the time that he made a traffic stop.” Duran at 569, 

citing Wayne R. LaFave, Search and Seizure Sec. 9.3(a), at 772—73 (5th ed. 

2012). A post-hoc rationalization for a traffic stop cannot be made on the basis of 

information learned personally or acquired from other officers after the stop. 

Duran at 570. This is exactly what the Court’s Opinion did — by attributing 

knowledge acquired by either the 911 dispatcher or Deputy Trevino to what 

Trevino knew at the inception of Appellant’s traffic stop. The citizen tipster, 

Polasek, testified that he described his observations of Appellant’s driving to the 

911 operator, however, no 911 dispatch recording was introduced by the State 

during Appellant’s suppression hearing. The State failed to present evidence at the 

hearing that Deputy Nguyen was actually informed by the 911 dispatcher regarding 

the factual details Polasek claimed that he told them. Thus, no evidence is 

contained in the record that Nguyen had any knowledge of Appellant’s alleged 

driving because no evidence exists that it was actually conveyed to him prior to the 

stop. 

 Nothing was corroborated that indicated any criminal activity was afoot — 

under the FOURTH AMENDMENT citizens are protected from unreasonable search 

and seizures at the inception of the traffic stop based upon the information actually 

received by the officer prior to the stop. 

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CONCLUSION

Appellant respectfully urges this Panel to withdraw the opinion issued on 

February 5, 2015, and issue a new opinion reversing the trial court’s denial of his 

suppression motion and remand for a new trial or grant this request for an En Banc 

reconsideration. 

 

 /S/ GARY S. MILLER 

 GARY S. MILLER

 Attorney for Steven Golden 

 State Bar No: 24051050

 1018 Preston St., Suite 500

Houston, TX 77002

Tel: (713) 223-4200

Fax: (713) 222-7022 

gary@millerlindsey.com

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CERTIFICATE OF COMPLIANCE

I, Gary S. Miller, hereby certify that the Appellant’s Motion for En Banc 

Reconsideration contains 1,315 words according to Apple Pages ver. 5.5.2 which 

was used to generate this document according to TEX. R. APP. P. 9.4 (3). 

 /S/ GARY S. MILLER 

 GARY S. MILLER

 

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CERTIFICATE OF SERVICE

 Appellant will electronically deliver by e-mail a copy of the foregoing 

instrument to Harris County Assistant District Attorney Carly Dessauer, counsel for 

the State of Texas, after e-filing:

 /S/ GARY S. MILLER 

 GARY S. MILLER

 

Date: April 17, 2015

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