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 §

ON APPEAL FROM THE COUNTY COURT AT LAW 4, COLLIN COUNTY, TEXAS, AND F ROM CAUSE NUMBER 004-82924-2014, THE HONORABLE DAVID RIPPE L, 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 ACCEPTED 06-14-00232-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 4/13/2015 12:00:00 AM DEBBIE AUTREY

CLERK1 NAMES OF PARTIES
Pursuant to Tex. R. App. P. Rule 38.1, the following is a compl ete 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, P lano, 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 Su ite 200, McKinney, Texas 75071.2 TABLE OF CONTENTS

NAMES OF PARTIES......... ...................................................................1 TABLE OF AUTHORITI ES....................................... ............................. 3 STATEMENT OF THE C ASE...................................................................5 ISSUE PRESENTED ........................ ......................................................6 STATEMENT OF FACTS

.......................................... ..............................7 SUMMARY OF THE ARGUM ENT............................................................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 COMPLI ANCE................................. .........................27 CERTIFICATE OF SERVICE ...................................................................273 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.Cri m.App. 2010).....................................21, 23, 24 Dahlem v. State, 322 S.W.3d 685, 691 (Tex. A pp. – Fort Worth 2010)................................12 Ford v. State, 158 S.W.3d 488, 492 (Tex.Cri m.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. A pp. – Waco 2006)........................................21 Johnson v. State, 912 S.W.2d 227, 235 (Tex.C rim.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.C rim.App. 2007)...........................................22 Thomas v. State, 408 S.W.3d 877, 881 (Tex. Cri m. App. 2013)..........................12, 13, 14, 19

Statutes and Constitutional Provisions:

Tex. Code of Criminal Proce dure § 38.23 ..............................................21 Texas Constitution Art. I, sec tion 9, 10 and 19 ....................................... 21 U.S. Const. Amend. IV ....................................................................214 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 C OURT OF APPEALS:
Appellant, CHRISTI BETH PERRIN, respectfully submits this brief pursuant to the Texas Rules of Appellate Procedure in support of her request fo r the court to reverse the ruling of the trial court regarding th e Appellant’s Motion to Suppress and remand the case to the tria l 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 #).5 STATEMENT OF THE CASE Appellant Christi Beth Perrin wa s brought to jury trial on a mi sdemeanor information filed in Collin Count y Court at Law 4. (CR 9). She was charged with DWI, a Class B misdemeanor. (CR 9 ). The Appellant pleaded not g uilty. (RR 2: 107). A jury heard evidence from bot h parties and found the App ellant guilty as charged. (RR 3:104). The jury th en assessed punishment at 6 day s in the county jail. (CR 76-77). Ms. Pe rrin now appeals. (CR 79).6 ISSUES PRESENTED The point of error that the Appe llant argues is that the Appell ant was illegally detained when her car was stopp ed by a police officer without r easonable suspicion. The trial court erre d by overruling the motion to su ppress on this issue.7 STATEMENT OF FACTS The Appellant Christi Beth Perrin was charged and convicted fo r the Class B misdemeanor offense of DWI. (CR 9). According to the arresting officer, she was stopped for driving a few feet aft er 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 medi cations. (RR 2:143). The Appellant had traveled from Farmersville to Allen to look f or 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 t o park their cars at the 400 block of Twin Creeks Drive in Allen. (RR 2:115, 121-122). T his was a residential area with houses, tr ees, and street lamps. (RR 2: 1 17). She had left her car to see if her former boyfrie nd’s car was in the area. She t hought that he was there visiting a woman who lived in th e area. (State’s Exhibit 1). The arresting officer first sa w 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 a t that point. (RR 2:125). He tur ned his car around to find out why the car was open and unattended. (RR 2:125). He wa nted to investigate whether someone had broken into the car, although on cross exam ination he characterized what he was doing a s kind of caretaking stuff. (R R 2:125, 155). When he pulled up to where the car was located, the officer saw Ms. Perrin walk on the8 side of the road along other ve hicles and get in her car. (RR 2 :127). She started to drive off when the officer sto pped the Appella nt even though th e officer did not see that the Appellant was doing anyt hing illegal. (RR 2:127, 153-1 55). The video does not seem to support the officer’s claims. On the video, the doo r on the car is closed and not open. (State’s Exhibit 1). Also, there are no other vis ible cars that can be seen that the appellant was suppos ed to be walking next to. (St ate’s Exhibit 1). Nevertheless, after he stopped her, he had her exit the vehicl e 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 Farmersvi lle to Allen. (RR 2: 130). The officer decided to have M s. Perrin submit to field so briety tests. (RR 2:131). The officer arrested her for DWI and drove her to the A llen police station. (RR 2:143, 145). There, she agreed to give a blood sample and p articipate in further tests given by a Drug Recogniti on Expert (DRE) officer. (RR 2:1 46, 152,169,170). The lab report came back showi ng prescription type substances in her blood that were at a therapeutic lev el. (RR 3: 19, 34, 43-44).9 SUMMARY OF THE ARGUMENT The point of error that the Appe llant argues is that the Appell ant was illegally stopped in her vehicle by on offi cer who lacked r easonable susp icion to do so. Therefore, all of the evidence d eveloped after that illegal sto p, which was used to prosecute her for Driving While I ntoxicated, should have been s uppressed by the trial court.10 POINT OF ERROR ONE
THE TRIAL COURT ERRED BY DENYI NG THE APPELLANTS MOTION TO SUPPRESS AS THE APPELLANT WAS ILLEGALLY STOPPED AND DETAINED The point of error in this cas e revolves around the Appellants stop by an officer as she was pulling out o f her parking spot. (RR 2: 127) The Appellant was stopped only feet from the parki ng 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 testifi ed that he noticed a black sedan with the d river’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 in stead appears to be closed. (State’s Exhibit 1). Itwas 12:30 a.m. when he first sa w the car and no one was in the vehicle. (RR 2: 125). T he car was located in an inle t area where residents unusually park. (RR 2: 125). Offi cer Brown turned around to inv estigate since he didn’t know if the car had been broken into. (RR 2: 125-126). As he was turning around to get t o the vehicle, he testified th at he observed a female walking along other vehicl es on the same side of the roa d. (RR 2:127). Again11 the video does not seem to corr oborate the officer’s story. In the video you cannot see any vehicles on the side of the road, and when the patrol c ar 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 th e car was located, he parked d irectly in front of the vehicle of which he estim ated was 30 to 40 feet. (RR 2: 126). He also observed the woman get into the vehicle and saw that she starte d to drive away. (RR 2: 127). When the car was drivi ng away, Officer Brown’s driver’ s door was already open. (RR 2: 127). He had also alr eady run the license plates o n the car and knew that the address registered to th e 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 o n the roadway.” (RR 2: 127). It was after the o fficer made the stop of the vehi cle that he noticed that the Appellant had her shirt on backwards. (RR 2: 128). It was a t this point that the officer began to investigate and develop the evidence for the D WI charge. (RR 2:128 – 131). Prior to the stop, the car was n ot parked illegally and the off icer conceded that it is not illegal if the plate wa s not registered to an Allen a ddress. (RR 2: 154-155). When he was questioned about hi s reason for the stop, the offic er agreed that he stopped her to see why the door was open and added to see why s he was walking12 among the other vehicles (although he just sees her walking bac k toward the car with the open door), kind of caret aking stuff. (RR 2: 155).

Burden of Proof for the Trial Court A warrantless automobile stop is a Fourth Amendment seizure ana logous to a temporary detention, and it must be justified by reasonable sus picion. 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 pro of 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 temp orary detention when he has reasonable suspicion to believe that an i ndividual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005) . In this case, the office r’s testimony was clear as to the reason why he stopped the A ppellant’s vehicle. The reason for the stop was because he saw a car with an ope n door and a woman walking. (RR 2:155). Because his actions were based upon what h e viewed rather than due to a warrant, the state must prove that the stop of the Appellant’s vehicle was reasona ble.

Preserving Error and Forfei ture of That Preservation An adverse ruling on a motion to suppress is ordinarily suffici ent to preserve

error. Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013) . A written order13 is not a prerequisite to preserve the court’s denial of the mot ion to suppress. Dahlem v. State, 322 S.W.3d 685, 691 (T ex. App. – Fort Worth 2010) . Actions or statements of a trial court can constitute an implicit ruling when they un questionably 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 specificall y 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 prese rved, 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 wa ive the error that was preserv ed. Thomas v. State, 408 S.W.3d 877, 881 (T ex.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 test imony at a hearing, and secure an appealable adverse ru ling, it is unrealistic to presu me that he would likely forgo the opportunity to vindicat e his interests on appeal even if he states “no objection” to the introduction of e vidence that had already bee n preserved as a point of error. Thomas v. State, 408 S.W. 3d 877, 885 (Tex.Crim.App. 2013)

. Therefore, the rule that a lat er statement of “no objection” wi ll forfeit earlier preserved error is context dependent. Thomas v. State, 408 S.W.3d 877, 88514 (Tex.Crim.App. 2013) . The appellate court should no t focus exclusively on the statement itself, in isolation, but should consider it in the c ontext 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 t hat the defendant did not inte nd, nor did the trial court construe, his “no objection” statement to constitute an a bandonment of a claim of error that he had earlier pres erved for appeal, then the app ellate 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” s ituation 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 c ounsel both said “no objection” when the targeted evidence was offered a nd allowed evidence that he was complaining of to be offered without objection before he secured an adverse ruling f rom 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 pro ceed with the case and have the suppression hearing at a later time during the tri al. Bouyer v. State, 264 S.W.3d 265, 268 (Tex.App.”-San Antonio 2008) . Then, before the hearing on the motion to suppress, defense couns el 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 the15 hearing and denied the motion to suppress. Bouyer v. State, 264 S.W.3d 265, 268 (Tex.App.”-San Antonio 2008) . The appellate court recogni zed that the defendant raised the suppression issue befo re the introduction of evidenc e at trial and the trial court advised that it would cons ider 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 objec tion” statements were made, thu s 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 witnesse s testified before the hearing was held on the motion to suppress. (RR 2: 113-153 ). However, a review of the r ecord shows that this was the procedure that the court decided to follow. The co ntextual record shows that there was no forfeiture or waiver of the challenged stop a nd detention of the Appellant. Before any introducti on of evidence in the case, the re was a discussion concerning the best way to intr oduce and listen to the video ev idence during the trial. (RR 2:100-101). During the discu ssion, defense counsel brought to the court’s attention that the defense had a n issue with the stop and that he wanted to urge the defendant’s motion to suppress . (RR 2:101). Counsel wanted to u rge the motion at “some point” and the court agr eed 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 counse l:16 MR. KNAPP: Um, if the Court w ould like after the officer is don e, if you want to – I mean, I could cross examin e 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 wa tch the video with him and I’l l 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 h ere 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 c lear then (sic), once she passe s 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 cr oss examination – (Discussion) THE COURT: That will be fine. And I can give the jury a short r ecess. MR. KNAPP: Okay. THE COURT: And send them out and then we can do our business.17 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. Y ou know me Gary, I know.

This exchange shows that the pro cedure that the court was going to follow was for witnesses to testify and ther efore some of the evidence of the trial concerning the contested evidence challenged by the motion to suppress would b e 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 ha ving evidence admitted prior to the motion to suppress that was targeted by the motion. The other issue concerning waiv er is the “no objection” respons e that counsel gave when the video evidence, l ab report evidence, and the bloo d kit were introduced after the court denied the moti on to suppress. (RR 2: 194, 212: RR 3: 42). It is clear, though, from the record as a w hole that counsel had no intent t o waive the error that he had preserved with the heari ng and adverse ru ling in the mot ion to suppress. When the efforts of counsel are e xamined as to the motion to su ppress there can be no mistake that he wanted t o preserve the point of error that he raised. Counsel filed a written motion to suppress (CR 53), alerted the court prior to any18 evidence being offered at trial t hat he wanted to present the m otion to suppress to the court (RR 2: 101), offered evide nce for the motion through the arresting officer (RR 2: 153), and asked the court to c onsider the first portion of t he video that was state’s exhibit 1 (RR 2: 101-102). All of these actions along with a re ading of the record as a whole show that counsel was maki ng the motion to suppress the k eystone of his defense of the Appellant. He h ad no intent to abandon his sup pression issue and his actions clearly made the court aware of his position. Because t he context of the case shows there was no abandonment, t he “no objection” statements s hould not be construed to abandon the suppre ssion preservation of error that he secured from the

court. There is no articulable reasona ble reason in this case why coun sel would want to abandon this point of error. W atching the video evidence of State’s Exhibit 1 makes it seem likely that the A ppellant would be convicted of t he offense. (State’s Exhibit 1). There is no doubt that she was driving and little q uestion from the video evidence that she was impaired. T herefore, the only real defens e 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 c ounsel clearly made an issue, was not reviewed. Because it is clear that trial counsel wa s making his motion to suppres s the primary defense at trial and that the court is aware that counsel is advancing thi s issue, there is no waiver or forfeiture of the pres erved point of error that was d eveloped in the motion19 to suppress. Although the law and the eviden ce supports the finding that the re was not an abandonment of the Appellant’s poi nt of error developed through the motion to suppress, if the court finds that there was a waiver, the Appel lant would urge the court to abandon the “no objecti on” waiver rule. It serves no r eal purpose except to disallow the Appellant of a case t o 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 t he trial judge. To say “no objection” when there is not any additional objection c an be said more as a matter of habit rather as a matte r of thought. So an accidental “no objection” can thereby waive a defendant’s poi nt of error. The “no objection” waiver rule is a gotcha rule that only really ser ves to deny an appellant the de sired 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 intr oduced by the state that the m otion to suppress would have disallowed if granted and this evidence was not waiv ed. Other than what the arresting officer saw when he testified regarding initially seeing the car, the rest of the trial was evidence that wa s developed and occurred after the illegal stop of the20 Appellant’s vehicle. (See Reporte rs Record). This includes the remainder of Officer Brown’s testimony after the moti on 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 (R R 2:207- 212), the testimony of the chemist who explained some of the blood test s results (RR 3: 12 – 20), the testimony of another chemist explaining another part of the blood test (RR 3: 30 – 3 4), 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 t here is significant evidence that was introduced int o the case that was subject to the motion to suppress and therefore is ripe for revi ew as evidence that should have b een suppressed if the court erred in the denial of tha t motion. What now remains is the issue of whether the stop of the Appell ant was illegal.

Detention A detention occurs when a person yields to the police officer’s show of authority under a reasonable be lief that he is not free to leav e 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 fre e to decline the21 officer’s requests or otherwi se 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 s eizures 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 Cons titution, 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 b eginning 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 wa s stopped. On the video tape t he Appellant is plainly visible leaving the area but for the officer’s interven tion. (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 A ppellant’s car right before she was pulling away from the curb. (State’s Exhibit 1). T he light directed at her car wo uld 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 o fficer was wearing a police unif orm with equipment belt and that he was a much lar ger person than the Appellant. ( State’s Exhibit 1). Any reasonable person who was attempting to go about th eir business and drive away, but was stopped from proceeding by a uniformed patrol off icer in this manner22 would be under a reasonable belie ve that he or she was not free to leave. This encounter was a detention. So th e issue now becomes whether the officer had reasonable suspicion to authoriz e the detention of the Appellan t as she was trying to leave.

Reasonable suspicion determination Reasonable suspicion exists if an officer has specific articula ble facts that, when combined with rational infe rences from those facts, would lead him to reasonably suspect that a particul ar 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 t hat 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 giv e almost total deference to a trial court’s determin ation of historical and application of la w to fact questions that turn on credibility and demeanor. Garcia v. State, 43 S.W.3d 527, 53023 (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 cour t 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 tr ial court, the reviewing court must be pres ented with more than a concluso ry 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 scr utiny of a judge who must evaluate the reasonablene ss of a particular seizure in lig ht of the particular circumstances. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005) . For instance, an officer’s opinion t hat 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 situati on 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 him24 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 th at showed that the man was eng aging 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 crimin al behavior. The appellant’s situation is s imilar. Although the officer test ified that there was a car with a door open that t he officer saw, the only thing the appellant was observed dong was walking along th e road. There was no evidence that she was engaging in any criminal activ ity. Even an open car door, if it was even open which the video tape seems to show clo sed, doesn’t show more than tha t – an open car door. Once she was in her car the re was absolutely no evidence presented that she was committing a crime – the best the officer could say was tha t he was engaged in a caretaking function. It is also significant to what t he 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 appe llant did something that could be construed as engaging in criminal activity or even that she was about to eng age in a criminal activity. What we are left with i s a woman who was walking alon g a road until she25 got into a car and began to drive away. That is something that happens untold times every day. There was no reasonabl e suspicion for the detention of the appellant. The only other thing that could just ify a stop is if the officer co uld have detained the appellant for a community caretaking reason.

Community Caretaking A community caretaking stop does not require the officer to hav e reasonable suspicion. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002) . The community caretaking exception re quires that the police officer was primarily motivated by a commun ity caretaking purpose and second, whether the officer’s belief that the individual n eeded 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 th e community caretaking exception does not apply.

Conclusion The court agreed to a procedur e that allowed the motion to supp ress to be heard after officers has testif ied about matters that occurred after the stop of vehicle. Since this was the procedure th at the court approved, there was no waiver from the officers testifying to matters o f the case before the motion wa s heard. Likewise, it was clear that defense counsel wan ted to preserve error regardi ng the motion to26 suppress, so his statement of “ no objection” did not waive the preservation of error. As to the issue at hand, the off icer did not have reasonable su spicion or any other legal reason to detain the appellant. This was therefore a violation of the Fourth, Fifth, Sixth and Fourteen th Amendments to the United St ates Constitution, Article I, Sections 9, 10 and 19 of the Constitution of the Sta te of Texas and article 38.23 of the Texas Code of Crimin al Procedure. Because the sto p was illegal, all of the evidence that was developed after the point of the detentio n of the car should have been suppressed and now the case shoul d be reversed and re manded for further proceedings.
PRAYER WHEREFORE, PREMISES CONSIDERED, the undersigned attorney requests this Court of Appeals to review the record on regardin g this appeal, reverse the trial court’s ruling on the motion to suppress and remand this case to the trial court fo r further proceedings.

Respectfully submitted ,

John L. Schomburger

Attorney for the Appellant BCN 17801540 555 Republic Drive #200 Plano, Texas 75023 jschomburger@gmail.com27 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 be en 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