Affirmed and Opinion Filed October 19, 2017
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00032-CR No. 05-17-00080-CR
BRITTANY LAUREN PAYNE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause Nos. 004-83281-2016 & 004-81845-2016
MEMORANDUM OPINION Before Justices Francis, Myers, and Whitehill Opinion by Justice Francis After the trial court denied her motion to suppress, Brittany Lauren Payne pleaded guilty
to fleeing an officer and driving while intoxicated with a blood-alcohol content over 0.15, both
arising out of the same facts. In the fleeing an officer case, the trial court placed appellant on
deferred adjudication community supervision for twelve months and fined her $300. In the DWI
case, the trial court sentenced appellant to 150 days in jail, probated for fifteen months, and a
fine of $300. In her sole issue, appellant contends the trial court erred by denying her motion to
suppress. We affirm.
Evidence at the suppression hearing showed Arfaine Tesfay, a roadway service employee
of the North Texas Tollway Association, was patrolling Sam Rayburn Tollway every hour on
October 13, 2015. At about 3:20 a.m., he found appellant’s vehicle stopped on the south side of the Tollway on one of the on-ramps. Two of the car’s tires were in the right lane and two tires
were on the shoulder of the road. Tesfay approached the vehicle and saw that the driver, later
identified as appellant, was asleep. NTTA policy was to not awaken a sleeping driver because he
or she could be intoxicated and might drive away. Consistent with this policy, Tesfay did not
awaken appellant. Tesfay blocked the lane with cones and lights and notified the NTTA
command center. He used a flashlight to warn passing vehicles to slow down.
About twenty-five minutes later, Department of Public Safety Trooper David Washington
III arrived on the scene. Washington had been a trooper for six years and had conducted many
DWI investigations. Washington saw appellant’s car partially in the lane of traffic; its brake
lights were on initially but then went off, which Washington said suggested appellant took her
foot off the brake. Washington parked behind appellant’s car. The rearview and front rotator
lights of his marked patrol vehicle were on as he approached appellant’s car. Washington, who
was in full uniform, shined his flashlight on the driver for several seconds and noted she was
asleep. When he tapped on the driver’s window, appellant immediately sped off on the Tollway.
Washington ran back to his vehicle and followed her at speeds of 40 to 50 mph with his lights
and sirens on. After about six minutes, appellant pulled over. During the pursuit, appellant
weaved in her lane several times and changed lanes without signaling. A video recording was
admitted into evidence and depicts the events testified to by Washington.
After the evidence was presented, the State argued the motion to suppress should be
denied for two reasons: (1) Washington was utilizing his community caretaking function when
he stopped and detained appellant and (2) Washington had reasonable suspicion to detain
appellant. The trial court denied appellant’s motion to suppress and subsequently made written
findings and conclusions to support the denial on both grounds argued by the State. These
appeals ensued.
–2– Before addressing the merits of the trial court’s decision, we consider an issue related to
our jurisdiction over the DWI appeal, Cause No. 05-17-00080-CR. Appellant timely filed her
notice of appeal but listed only the trial court cause number in the fleeing an officer case. After
the time expired for filing a new notice of appeal but before any briefs were filed, appellant filed
an amended notice of appeal requesting this Court to include the cause number in the DWI case.
We asked the parties for jurisdictional briefing. The State contends the DWI notice of appeal is
untimely; appellant argues otherwise. We agree with appellant.
In Gonzales v. State, 421 S.W.3d 674 (Tex. Crim. App. 2014), the court of criminal
appeals addressed a factually similar situation. There, the appellant was indicted in four different
cases, but the cases were consolidated under a single cause number for jury trial. When the
appellant filed his notice of appeal, he listed only the cause number used at trial, and the court of
appeals dismissed the three other cases. 421 S.W.3d at 674–75.
The court of criminal appeals reversed, explaining the rules of appellate procedure were
amended in 2002 to “prevent such a result,” citing to rule 25.2(f). Rule 25.2(f) allows a notice of
appeal to be amended to correct a defect or omission in an earlier filed notice at any time before
appellant’s brief is filed, if the court has not previously notified the parties of the defect and
given them an opportunity to remedy it, if possible. TEX. R. APP. P. 25.2(f). The court criticized
older cases as elevating “form over substance” and stressed a person’s right to appeal “should
not depend upon tracking through a trail of technicalities.” Gonzales, 421 S.W.3d at 675.
Here, the two cases are companions and have been treated as such by the parties and the
trial court. Appellant filed a motion to suppress in both cases, and the trial court conducted one
hearing and issued one set of findings of fact and conclusions of law. Moreover, the same
suppression issue is raised in both cases. Appellant has filed one brief, with both cause numbers,
and the State has filed a single response under both cause numbers. Given these particular
–3– circumstances, we conclude appellant’s failure to list both cause numbers was clearly an
“omission.” See id. The DWI case is properly before us.
Turning to the merits, appellant brings a sole issue arguing the trial court abused its
discretion by denying her motion to suppress. In her issue, she challenges only one of the
grounds supporting the trial court’s denial: the community caretaking function. She does not
address whether the trial court’s ruling can be affirmed on the second basis argued, reasonable
suspicion.
An appellant must challenge all independent bases or grounds that fully support a
judgment or appealable order. State v. Hoskins, No. 05-13-00416-CR, 2014 WL 4090129, at *2
(Tex. App.—Dallas Aug. 19, 2014, no pet.) (not designated for publication) (applying principle
to issue regarding motion for new trial); Johnson v. State, No. 03-15-00695-CR, 2017 WL
1404334, at *4 (Tex. App.—Austin Apr. 12, 2017, no pet.) (mem. op., not designated for
publication) (applying principle to issue regarding motion to suppress); see State v. Copeland,
501 S.W.3d 610, 613 (Tex. Crim. App. 2016) (explaining that if “theory of law” applicable to
case is presented at trial in “such a manner that the appellant was fairly called upon to present
evidence on the issue,” but appellant fails to argue “theory of law” applicable to the case on
appeal, the argument is forfeited). If even one independent ground fully supports the
complained-of ruling and an appellant does not assign error to it, we accept the validity of that
unchallenged independent ground; consequently, any error in grounds challenged on appeal is
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Affirmed and Opinion Filed October 19, 2017
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00032-CR No. 05-17-00080-CR
BRITTANY LAUREN PAYNE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause Nos. 004-83281-2016 & 004-81845-2016
MEMORANDUM OPINION Before Justices Francis, Myers, and Whitehill Opinion by Justice Francis After the trial court denied her motion to suppress, Brittany Lauren Payne pleaded guilty
to fleeing an officer and driving while intoxicated with a blood-alcohol content over 0.15, both
arising out of the same facts. In the fleeing an officer case, the trial court placed appellant on
deferred adjudication community supervision for twelve months and fined her $300. In the DWI
case, the trial court sentenced appellant to 150 days in jail, probated for fifteen months, and a
fine of $300. In her sole issue, appellant contends the trial court erred by denying her motion to
suppress. We affirm.
Evidence at the suppression hearing showed Arfaine Tesfay, a roadway service employee
of the North Texas Tollway Association, was patrolling Sam Rayburn Tollway every hour on
October 13, 2015. At about 3:20 a.m., he found appellant’s vehicle stopped on the south side of the Tollway on one of the on-ramps. Two of the car’s tires were in the right lane and two tires
were on the shoulder of the road. Tesfay approached the vehicle and saw that the driver, later
identified as appellant, was asleep. NTTA policy was to not awaken a sleeping driver because he
or she could be intoxicated and might drive away. Consistent with this policy, Tesfay did not
awaken appellant. Tesfay blocked the lane with cones and lights and notified the NTTA
command center. He used a flashlight to warn passing vehicles to slow down.
About twenty-five minutes later, Department of Public Safety Trooper David Washington
III arrived on the scene. Washington had been a trooper for six years and had conducted many
DWI investigations. Washington saw appellant’s car partially in the lane of traffic; its brake
lights were on initially but then went off, which Washington said suggested appellant took her
foot off the brake. Washington parked behind appellant’s car. The rearview and front rotator
lights of his marked patrol vehicle were on as he approached appellant’s car. Washington, who
was in full uniform, shined his flashlight on the driver for several seconds and noted she was
asleep. When he tapped on the driver’s window, appellant immediately sped off on the Tollway.
Washington ran back to his vehicle and followed her at speeds of 40 to 50 mph with his lights
and sirens on. After about six minutes, appellant pulled over. During the pursuit, appellant
weaved in her lane several times and changed lanes without signaling. A video recording was
admitted into evidence and depicts the events testified to by Washington.
After the evidence was presented, the State argued the motion to suppress should be
denied for two reasons: (1) Washington was utilizing his community caretaking function when
he stopped and detained appellant and (2) Washington had reasonable suspicion to detain
appellant. The trial court denied appellant’s motion to suppress and subsequently made written
findings and conclusions to support the denial on both grounds argued by the State. These
appeals ensued.
–2– Before addressing the merits of the trial court’s decision, we consider an issue related to
our jurisdiction over the DWI appeal, Cause No. 05-17-00080-CR. Appellant timely filed her
notice of appeal but listed only the trial court cause number in the fleeing an officer case. After
the time expired for filing a new notice of appeal but before any briefs were filed, appellant filed
an amended notice of appeal requesting this Court to include the cause number in the DWI case.
We asked the parties for jurisdictional briefing. The State contends the DWI notice of appeal is
untimely; appellant argues otherwise. We agree with appellant.
In Gonzales v. State, 421 S.W.3d 674 (Tex. Crim. App. 2014), the court of criminal
appeals addressed a factually similar situation. There, the appellant was indicted in four different
cases, but the cases were consolidated under a single cause number for jury trial. When the
appellant filed his notice of appeal, he listed only the cause number used at trial, and the court of
appeals dismissed the three other cases. 421 S.W.3d at 674–75.
The court of criminal appeals reversed, explaining the rules of appellate procedure were
amended in 2002 to “prevent such a result,” citing to rule 25.2(f). Rule 25.2(f) allows a notice of
appeal to be amended to correct a defect or omission in an earlier filed notice at any time before
appellant’s brief is filed, if the court has not previously notified the parties of the defect and
given them an opportunity to remedy it, if possible. TEX. R. APP. P. 25.2(f). The court criticized
older cases as elevating “form over substance” and stressed a person’s right to appeal “should
not depend upon tracking through a trail of technicalities.” Gonzales, 421 S.W.3d at 675.
Here, the two cases are companions and have been treated as such by the parties and the
trial court. Appellant filed a motion to suppress in both cases, and the trial court conducted one
hearing and issued one set of findings of fact and conclusions of law. Moreover, the same
suppression issue is raised in both cases. Appellant has filed one brief, with both cause numbers,
and the State has filed a single response under both cause numbers. Given these particular
–3– circumstances, we conclude appellant’s failure to list both cause numbers was clearly an
“omission.” See id. The DWI case is properly before us.
Turning to the merits, appellant brings a sole issue arguing the trial court abused its
discretion by denying her motion to suppress. In her issue, she challenges only one of the
grounds supporting the trial court’s denial: the community caretaking function. She does not
address whether the trial court’s ruling can be affirmed on the second basis argued, reasonable
suspicion.
An appellant must challenge all independent bases or grounds that fully support a
judgment or appealable order. State v. Hoskins, No. 05-13-00416-CR, 2014 WL 4090129, at *2
(Tex. App.—Dallas Aug. 19, 2014, no pet.) (not designated for publication) (applying principle
to issue regarding motion for new trial); Johnson v. State, No. 03-15-00695-CR, 2017 WL
1404334, at *4 (Tex. App.—Austin Apr. 12, 2017, no pet.) (mem. op., not designated for
publication) (applying principle to issue regarding motion to suppress); see State v. Copeland,
501 S.W.3d 610, 613 (Tex. Crim. App. 2016) (explaining that if “theory of law” applicable to
case is presented at trial in “such a manner that the appellant was fairly called upon to present
evidence on the issue,” but appellant fails to argue “theory of law” applicable to the case on
appeal, the argument is forfeited). If even one independent ground fully supports the
complained-of ruling and an appellant does not assign error to it, we accept the validity of that
unchallenged independent ground; consequently, any error in grounds challenged on appeal is
harmless because the unchallenged independent ground fully supports the complained-of ruling.
Hoskins, 2014 WL 4090129, at *2; Johnson, 2017 WL 1404334, at *4.
Here, appellant has not challenged all grounds relied upon by the trial court in denying
her motion to suppress; accordingly, she cannot show the trial court erred in denying her motion.
Even if she had challenged reasonable suspicion, however, she cannot show error.
–4– Investigative detentions are generally governed by the reasonable suspicion standard.
York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011). Under the Fourth Amendment,
reasonable suspicion exists when an officer is aware of specific articulable facts that, when
combined with rational inferences from those facts, would lead him to reasonably suspect that a
particular person has engaged or is or soon will be engaging in criminal activity. Id. This
standard is objective; the subjective intent of the officer conducting the detention is irrelevant.
Id. Reasonable suspicion does not depend on the “most likely explanation” for a suspect’s
conduct, and reasonable suspicion can exist even if the conduct is “as consistent with innocent
activity as with criminal activity.” Id.
Here, appellant was found sleeping behind the wheel of her car, which was partially in a
lane of traffic on an on-ramp of a major roadway, at 3:20 a.m. The car’s headlights were on and
the engine appeared to be running.1 Appellant did not awaken, despite the shining of a light on
her face, until the trooper tapped on her window twenty-five minutes later. She immediately
sped away, leading the trooper on a six-minute pursuit in which she weaved in her lane several
times and changed lanes without signaling.
In York, the court of criminal appeals concluded an officer had reasonable suspicion to
believe the appellant was intoxicated to the degree he might endanger himself or another based
on the following facts: (1) it was around 3:00 a.m., (2) the appellant was asleep in his car, (3) the
car’s engine was running, (4) the car was parked partially on the sidewalk near the door to a gas
station that was closed, and (5) the headlights were on. 342 S.W.3d at 537. The facts here are at
least as compelling as those in York to show Washington had reasonable suspicion to believe
1 The trial court made this finding. Although the trooper did not specifically testify the engine was running, the audio/video recording showed appellant drove away immediately after Trooper Washington tapped on the driver’s side window with no sound of an engine starting. From this, the trial court could have inferred the engine was running when Washington approached the car and found appellant asleep.
–5– appellant was intoxicated to the degree she might endanger herself or another and operated a
motor vehicle while intoxicated. We overrule the sole issue.
We affirm trial court’s judgment in the DWI case and the order deferring adjudication in
the fleeing case.
/Molly Francis/ MOLLY FRANCIS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 170032F.U05
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRITTANY LAUREN PAYNE, Appellant On Appeal from the County Court at Law No. 4, Collin County, Texas No. 05-17-00032-CR V. Trial Court Cause No. 004-83281-2016. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices Myers and Whitehill participating.
Based on the Court’s opinion of this date, the trial court’s order of deferred adjudication is AFFIRMED.
Judgment entered October 19, 2017.
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRITTANY LAUREN PAYNE, Appellant On Appeal from the County Court at Law No. 4, Collin County, Texas No. 05-17-00080-CR V. Trial Court Cause No. 004-81845-2016. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices Myers and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–8–