### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00078- CR
The State of Texas, App ellant

v. Suzann e Wolfe, Appellee

F ROM CO UNTY COURT AT LAW NO . 6 O F TRAVIS CO UNTY NO. C-1 -CR- 03- 6429 26, H ONO RAB LE JAN B RELAND, JUDGE P RESIDING

O P I N I O N
I n this prosec ution for driving while intox icated (DWI ), t he S tate appeals from the trial court’s order r e c o n s id e r in g a n d g r a n ti n g a p p e ll e e Su za

nn e Wolfe’s motion to suppress evidenc e. See Tex. Penal Code Ann. § 49.04 (West 2003). I n a single issue on appea l, the State arg ues that the trial court err ed in rec onsidering the motion and g ranting suppression relief
. We aff irm the order of the trial cour

t.
BACK GR OUND The orig inal heari n g o n W o lfe’s motion to suppress evidenc e was held befor e a visiti ng judge on J anuar

y 14, 2004. The sole witness was Deputy Craig Miller of the Travis County Sheriff’ s Offic e, who testified that at approximately 1:20 a.m. on J uly 7, 2003, he observe d a black BMW driving with its tires straddling the solid white line dividing the roadw ay from the desig nated bicy cle lane. Miller testified that afte r observing the vehicle s t ra d d le the white line forapproximately two-tenths of a mile, he initiated a traff ic stop. During the traff

ic stop, Miller formed the opinion that Wolfe, the driver of the vehicle, was intox icated and arr ested her for DWI
. During the suppression hear ing, Wolfe orally amende d her motion to limit the issues befor e the court to the question of whether Miller had rea sonable suspicion to support the detention. Acc ording ly , the issue of whe ther Miller ha d probable cause to arre st W olfe for DWI was not deve loped on the re cord. At the conclusion of the suppression hear ing, the trial court denied Wolfe’s motion. On May 10, 2004, Wolfe filed a “B rief in Support of Defe ndant’s Motion to Suppress.” The c ase t h en re m ai n ed pending for sever al y ear s and was rese t for trial multipl e times. Finally , at a tr i al setting on J anuar

y 28, 2009, the trial court, with a differ ent judge presiding , rec onsidered the denial of Wolfe’s motion to suppress and g rante d her motion. No repor ter’s rec o rd was made of this proce eding
. The trial court subsequently issued an order memorializing its ruling in order to provide the State with an appe alable or der. This a ppeal f ollowed. I n a single issue on appea l, the State arg ues that the trial court err ed in rec onsidering and g ranting W o l fe’ s motion to suppress without providing the State with prior notice that the motion would be rec onsidered on that particula r date and without holding a second evidentiar y hear ing.
DISCUSSIO N As a preliminary matter, we note that the State does not raise an i s s u e o n appea l reg arding the merits of the motion to suppress, but arg ues that as a proce dural matter, the trial court
err ed in re considering the motion five y ear s after it was orig inally

denied, without providi ng prior

2notice or an evidentiary hear ing. Thus, our an al y s i s is limit ed to this proce dural iss ue, and we do

not addre ss the question of whethe r Miller had r easona ble suspicion to detain Wolfe. T his Court has held that beca use a motion to suppress is “nothing more th an a
s pecia liz ed objection,” a trial court is “fr ee to rec onsider its own ear lier suppression ruling .” Montalvo v. State , 846 S.W .2d 133, 137-38 (Tex. App.—A u s t in 1993, no pet.); see also State

v. Henry , 25 S.W .3d 260, 262 (Tex. App.—San Antonio 2000, no pet.) (holding that ruling on motion to suppress is i nterlocutory and may be rec onsidered)
. The State arg ues that while a trial court may rec onsider its own suppression ruling , the trial court in this case improperly rec onsidered the suppression ruling of a diff ere nt, visit ing judg e. Howeve r, “judicia l power is veste d in courts, not individuals.” Davis v. State , 956 S.W .2d 555, 559 (Tex. Crim. App. 1997). Whil e the motion to suppress wa s re consi dere d by a judge other than the visiti ng judge who orig inally denied the motion, the suppression motion was both considere d and rec onsidered by the same county court at law. Thus, the trial cour

t here acte d within its discretion to re consider its own earlier suppression ruling
. See Montalvo , 846 S.W .2d at 137-38 (dec ision to rec onsider previous ruling is matter of trial court’s discr etion).

The State further arg ues that the tri al co u rt erred in rec onsidering the suppression ruling without providing the State with notice that the issue would be rec onsidered at that particula r proce eding
. Howeve r, the rec ord ref lects that Wolfe’s brief in support of her motion to suppress was filed May 10, 2004, afte r her motion was orig inally denied, and rema ined pending at the time the trial court rec onsidered its ruling
. Thus, the State was on notice that Wolfe soug ht rec onsideration of her motion to dismiss and had ample opportunity to file a response to her suppression arg uments.

3For that matter, the State was on notice that the trial court had discretion to rec onsider its suppression

ruling at any time. See Ex parte King , 134 S.W .3d 500, 503 (Tex. A pp.—Austin 2004, pet. ref ’d); Montalvo , 846 S.W .2d at 138.

We note also that the re cord doe s not refle ct that the State ever objected to the tr ial court’s r econside ration of the suppression ruling at t he J anuar y 28, 2009 trial setting. The S tate’s brief sug g ests that it could not have objected beca use the trial court improp er l y re co n s idere d the suppression i ssue “without the prosecutor present.” Wolfe, on the ot her hand, asser ts in h er b ri ef t h at “[t] he elec ted trial judge took up [W olfe’s] motion, rec onsidered and g rante d suppress i o n i n open court. A County Attorney for Travis County prosec utor was assig ned to that court and prese nt then.” ( emphasis omitted). Ther e is no repor ter’s r ecor d to resolve this discre pancy . 1 I n any event, there is no indication in the rec ord that the State ever prese nted its lackof-notice complaint to the trial court by a timely reque st, objection, or motion, either at the trial setting or afte r the trial court’s order was issued. I nstead, the State raises its notice arg ument for the first time on ap p ea l
. By fa i l i ng to prese nt this issue to the trial court, the State has waived its
co m p l ai n t
. S

ee Tex. R. App. P
. 33.1(a) (complaint m ust be made to trial court by timely reque st,
o b j ection, or motion in order to prese rve complaint for appellate revie w); see also Pena v. S t a t e , 285 S.W .3d 459, 464 (Tex. Crim. App. 2009) (explaining that party must prese nt complaint to trial court in order to prese rve err o r b ec au s e “[t] his g ives the trial judge and the opposing party the

The trial court’s docket sheet indicates that th e m at t er was set for trial befor e the court 1 “w/witness[es]” on J anuar y 28, 2009. The rec ord als o re flec ts that the State reque sted that subpoenas be issued for Mil ler and other law enfor ceme nt witnesses, requiring them to appea r on J anuar y 28, 2009. 4opportunity to corr ect the err or”) ; T exas v. Merc ado , 972 S.W .2d 75, 78 (Tex. Crim. App. 1998) (“O rdinary

notions of proce dural de fault should apply equally to the defe ndant and the State.” ). Simi larly , the State arg u es for the first time on appea l that the trial court err ed in g ranting the motion to suppress without conducting a second e videntiary

hear ing. L ike t he noti ce arg ument, this arg ument was never prese nted to the trial court and is there fore waived. See Tex. R. App. P. 33.1(a)
. Fur

thermore , it is unclea

r what the trial co u rt m ay have hear d or revie wed in
rec onsidering the s u p pression issue, as there is no rec ord of the proce eding and the State did not reque st finding s of fac t and co n cl u sions of law. Even if it would be err or for a trial court to 2

rec onsider a motion to suppress without hear ing additional evidenc e, there is simply nothing in the
rec ord bef

ore us to indicate that the trial cour t did so in t his case. I n the alterna tive, the State arg ues that in the absenc e of a second evidentiar y hear ing, the trial court should have g iven “almost total defe renc e” to the implied fac t finding s of the visiti ng judge
. Ag ain, because there is no rec ord and no finding s of fa ct or conclusions of l aw, we do not know whethe r or not the tria l court def err ed to the implied f

act finding s of the visiti ng judge . I t is altog ether possible that the trial court defe rre d to such finding s, but never theless deter

mined that the orig inal suppression ruling was based on an er ro n eo u s co n clusion of law, as Wolfe arg ued in her brief in support of the motion to suppress. Second, the trial court was n o t acting as an appellate court, revie wing the orig inal suppression ru l i n g u n d er the hy brid standard of revie w applied by

Had the State made such a reque st, th e trial court would have been obliga ted to make 2 finding s of fac t and conclusions of law. See State v. Cullen , 195 S.W .3d 696, 699 (Tex. Crim. App. 2006) (“[U]pon the reque st of the losing party on a motion to suppress evidenc e, the trial court shall state its essential finding s.”). 5appellate courts to trial court ruling s on motions to suppress. See Guzman v. State , 955 S.W .2d 85,

89 (Tex. Crim. App. 1997). Rather, the trial court in this case was simply exercising its discretion to rec onsider a prior interlocutory ruling
. The appellate standard of revie w is inapplicable. Finally , this issue was raised for

the first time on appe al and therefor e has not been properly prese rved for appellate revie w. See Tex. R. App. P . 33.1(a)
.

We overrule the State’s issue on appe al and a ffirm the or der of the trial cour

t.
CONCLUSION We affir m the trial court’ s order
.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Diane M. H enson, Jus tice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Jul y

9, 2010 Publis h

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