ACCEPTED 06-14-00232-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/3/2015 3:22:58 PM DEBBIE AUTREY CLERK
In the Court of Appeals for the Sixth Judicial District of Texas at Texarkana FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS Christi Beth Perrin, § 6/3/2015 3:22:58 PM Appellant § DEBBIE AUTREY Clerk § v. § No. 06-14-00232-CR § The State of Texas, § Appellee §
Trial Number 004-82924-2014 in the Collin County Court at Law 4 The Honorable David Rippel, Judge Presiding
STATE’S BRIEF
Greg Willis Criminal District Attorney Collin County, Texas
John R. Rolater, Jr. Asst. Criminal District Attorney Chief of the Appellate Division
Oral argument is requested if Erik F. Gierczyk Appellant also requests argument Asst. Criminal District Attorney 2100 Bloomdale Rd., Suite 200 McKinney, TX 75071 (972) 548-3657 FAX (214) 491-4860 State Bar No. 2408233 egierczyk@collincountytx.gov
Rachel Tran Asst. Criminal District Attorney Table of Contents
Index of Authorities .................................................................................. ii
Statement Regarding Oral Argument ......................................................1
Statement of the Case ...............................................................................1
Statement of Facts..................................................................................... 1
Summary of the State’s Arguments .......................................................... 6
Argument & Authorities ........................................................................7
I. Standard of Review .............................................................................7
Issue One THE TRIAL COURT PROPERLY OVERRULED APPELLANT'S MOTION TO SUPPRESS ...............................................7
Appellant claims the trial court erred in denying her motion to suppress. The trial court properly overruled the motion to suppress because the officer had reasonable suspicion to detain Appellant.
II. Argument .........................................................................................10
Prayer ...................................................................................................... 15
Certificate of Service ............................................................................... 16
Certificate of Compliance ........................................................................16
i Index of Authorities
Statutes, Codes, and Rules
Tex. Penal Code § 49.04 ........................................................................ 1
Tex. Transp. Code § 545.418 ......................................................... 10, 14
Tex. Transp. Code § 724.015 ................................................................. 4
Cases
Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997) ............................................. 9
Derichsweiler v. State 348 S.W. 3d 906 (Tex. Crim. App. 2011) .......................................... 13
Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) ............................................. 8
Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992) ............................................. 9
Goudeau v. State, 209 S.W. 3d 713(Tex. App.—Houston 14th Dist. 2006, no pet. ....... 11
Graham v. State, 893 S.W.2d 4 (Tex. App. – Dallas 1994, no pet.) ................................ 8
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................................... 7, 8
Jones v. State, 833 S.W.2d 118 n. 15 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921 (1993) ............................................................................................ 8
ii Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) ............................................. 7
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) ........................................... 12
Strickland v. State, 923 S.W. 2d 617 (Tex. App.—Houston [1st Dist.] 1995, no pet.) ..... 11
Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)............ 8, 9, 11
Thomas v. State, 336 S.W. 3d 703 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) ....................... 10, 11
Wade v. State, 422 S.W. 3d 661, 668 (Tex. Crim. App. 2013)................................. 8, 9
Whren v. United States, 517 U.S. 806, 812-13 (1996)................................................................. 9
Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) ............................................... 8
iii Statement Regarding Oral Argument
The State does not believe oral argument will assist the Court
in resolving the issues in this case. However, if oral argument is
granted to Appellant, the State requests the opportunity to respond.
Statement of the Case
Charge............................................................... Tex. Penal Code § 49.04 CR 9
Plea ......................................................................................... Not Guilty 2 RR 107
Verdict (Jury)................................................................................. Guilty 3 RR 104
Punishment (Jury)................................................... 6 days’ confinement 3 RR 154
Statement of Facts
Allen Police Officer Antony Brown was patrolling a residential
neighborhood late one evening in September of 2012 when he noticed
something out of the ordinary—a black sedan parked in the 400 block
of Twin Creeks Drive with its driver’s side door open, facing traffic,
and no one inside the car or within its vicinity. 2 RR 125. He first saw
the car at approximately 12:30 a.m., when it was parked in an inlet
1 designed for resident parking slightly off the roadway. 2 RR 125.
Based on his knowledge of that area and the late hour, Officer Brown
suspected the car may have been broken into, or that some other
cause for concern accounted for the unusual circumstances, and
decided to investigate further. 2 RR 125. A computer check of the
car’s license plate showed it was not registered to an address in Allen.
2 RR 127-28. As Officer Brown turned his patrol car around to stop
in front of the suspicious car, a woman appeared and walked
alongside other vehicles parked on the side of the road. 2 RR 127. She
was later identified by her driver’s license as Christi Beth Perrin, the
Appellant in this case. 2 RR 129. Officer Brown parked his patrol car
approximately 40 feet in front of the suspicious car and watched
Appellant enter the car and begin to drive towards him. 2 RR 127. As
Appellant neared Officer Brown’s parked patrol car, he stepped out of
his car and stopped her. 2 RR 127.
Upon initial contact, Officer Brown immediately noticed
Appellant was wearing a polo shirt on backwards, so that the collar
was under her chin and the v-shaped button-opening was on her
back. 2 RR 128. Officer Brown, who was in training to become a drug
2 recognition expert (DRE) at the time, also noticed Appellant’s eyes
were abnormally dilated. 2 RR 129. When asked what she was doing
in the neighborhood, Appellant stated that she was trying to visit a
friend who lived in Colleyville, a city over 35 miles away from the
location of the stop. 2 RR 130. Appellant denied having consumed
alcohol, but admitted she had taken four prescription drugs earlier in
the day: Valium, Depakote, Adderall and Trazadone. 2 RR 131, 142.
Valium, Depakote, and Trazadone are all central nervous system
(CNS) depressants, while Adderall is a CNS stimulant. 2 RR 184.
Based on what he had observed of Appellant, Officer Brown suspected
her of possibly driving while intoxicated (DWI) and decided to
administer the standardized field sobriety tests (SFSTs). 2 RR 131.
After determining Appellant was a good candidate for the
SFSTs, Officer Brown administered first test, the horizontal gaze
nystagmus (HGN) test. 2 RR 134-35. Appellant showed no clues on
this test. 2 RR 134-35. Appellant then performed the two divided-
attention tests, the walk-and-turn (WAT) and one-legged-stand (OLS)
test. 2 RR 137-39. Appellant showed five out of eight clues of
intoxication on the WAT and three out of four clues of intoxication on
3 the OLS. 2 RR 138-39. According to the decision point on each test,
Appellant failed both the WAT and OLS. 2 RR 138-42. Based on
everything he observed, Officer Brown concluded that the Appellant
lacked the normal use of her mental and physical faculties due to the
ingestion of CNS depressants and stimulants, and he arrested her for
DWI. 2 RR 143.
At the Allen city jail, Officer Thompson read the DIC-24
warnings1 to Appellant and requested that she provide a blood
sample to test for the presence of drugs. 2 RR 145. Appellant
consented and Officer Brown then transported her to a hospital for a
blood draw. 2 RR 146. Following the blood draw, Officer Matthew
Johnson, a certified DRE, conducted a drug recognition exam of
Appellant. 2 RR 180. Officer Johnson concluded that Appellant lacked
the normal use of her mental and physical faculties due to the
introduction of CNS stimulants and depressants into her body. 2 RR
192.
At trial, the blood-draw results were admitted into evidence and
showed that Appellant’s blood contained: 0.11 milligrams of
1These warnings set out the penalties associated with refusing to provide a blood or breath sample. See Tex. Transp. Code § 724.015.
4 Amphetamine per liter, 0.10 milligrams of Diazepam per liter, 0.28
milligrams of Nordiazepam per liter, and an unquantified level of
Valproic Acid. 3 RR 16, 34, 43; SX 4. Diazepam, Nordiazepam, and
Valproic Acid are all CNS depressants, whereas Amphetamine is a
stimulant. 3 RR 45. Forensic scientist Eduardo Padilla of the DPS
Austin Crime Laboratory testified that the level of Nordiazepam in
Appellant’s blood, a metabolite of Diazepam (commonly known as
Valium), exceeded therapeutic levels. 3 RR 44. He also testified that
while each CNS depressant detected in Appellant’s blood could have
an impairing effect on its own, a greater impairing effect is possible
when taken in combination. 2 RR 45. Videos of the traffic stop and
interactions at the police station were admitted into evidence and
viewed by the jury. 2 RR 193-94; SX 1.
5 Summary of the State’s Arguments
State’s Reply to Issue One:
THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S MOTION TO SUPPRESS.
Appellant claims the trial court erred in denying her motion to
suppress. The trial court properly overruled the motion to suppress
because the officer had reasonable suspicion to detain Appellant.
6 Argument & Authorities
Issue One
THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S MOTION TO SUPPRESS.
Appellant claims the trial court erred in denying her motion to
suppress. The trial court properly overruled the motion to suppress
because the officer had reasonable suspicion to detain Appellant.
I. Standard of Review
In a suppression hearing, the trial court judges the witnesses’
credibility and the weight to be given to testimony. Romero v. State,
800 S.W.2d 539,543 (Tex. Crim. App. 1990). In reviewing a trial
court’s decision on a motion to suppress, an appellate court must
grant almost total deference to a trial court’s determination of the
historical facts that the record supports, especially when the court’s
fact findings are based on an evaluation of credibility and demeanor.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The
same amount of deference must be afforded to the trial court’s rulings
on “application of law to fact questions,” also known as “mixed
questions of law and fact,” if the resolution of those ultimate
questions turns on an evaluation of credibility and demeanor. Id.
7 However, an appellate court may review de novo “mixed questions of
law and fact” not falling within this category. Id.
The trial court’s ruling must be upheld if it is right for any
reason. Jones v. State, 833 S.W.2d 118,125 n. 15 (Tex. Crim. App.
1992), cert. denied, 507 U.S. 921 (1993). In fact, the trial court’s
ruling should be upheld if it can be upheld on any valid theory
regardless of whether the State argued the theory in the trial court or
on appeal. Graham v. State, 893 S.W.2d 4, 7 (Tex. App.—Dallas
1994, no pet.).
To conduct an investigative detention, a police officer must have
a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1,
30-31 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App.
1997). An officer has reasonable suspicion for a detention if he has
specific, articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably conclude
that the person detained is, has been, or soon will be engaged in
criminal activity. Wade v. State, 422 S.W. 3d 661, 668 (Tex. Crim.
App. 2013); Ford v. State, 158 S.W.3d 488,492 (Tex. Crim. App. 2005).
8 The reasonableness of a temporary detention is determined from the
totality of the circumstances. Wade, 422 S.W. 3d at 668.
An investigative detention is reasonable if the officer’s action
was justified at its inception and was reasonably related in scope to
the circumstances that justified the interference in the first place.
Terry 392 U.S. at 19-20; Davis v. State, 947 S.W.2d 240, 242 (Tex.
Crim. App. 1997). The reasonableness of a traffic stop is evaluated
based solely on an objective standard; thus, an officer’s subjective
intent plays no role in the determination of whether a traffic stop was
reasonable. Whren v. United States, 517 U.S. 806, 812-13 (1996); see
also Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (the
“officer’s subjective intent is relevant only to a credibility
determination of his stated reasons for stopping or arresting an
individual.”). Consequently, the police may validly stop a vehicle for a
traffic violation so long as the stop would be objectively reasonable,
regardless of whether the stop is a mere pretext to investigate
unrelated criminal conduct. Garcia, 827 S.W.2d at 944.
9 II. Argument
In Thomas v. State, 336 S.W. 3d 703, 709 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d), a police officer, who was outside of his
jurisdiction, saw a car driving unsafely, and observed a passenger
open one of the car’s doors so that it was facing traffic while the car
was still partially in the street. Thomas 336 S.W. 3d at 706, 708-9.
The officer stopped the car, questioned the driver Thomas, and
Thomas was ultimately arrested for driving while intoxicated. Id. at
706-7. Thomas filed a motion to suppress the stop and arrest,
arguing, in part, that the stop was impermissible under Terry
because the investigating officer was outside his jurisdiction and
Appellant had not been the one to open the passenger door. Thomas
at 707.
On appeal, Thomas again argued that the detention was
impermissible under Terry. Thomas at 708. The First Court of
Appeals held that an officer’s visual observation of a car’s door being
open, while facing traffic, provided an officer with reasonable
suspicion of a violation of section 545.418 of the Texas
Transportation Code and provided sufficient justification for an
10 investigatory detention under Terry. Thomas at 709. Even though the
officer had not seen Thomas open the car door, the court noted that,
“There is no requirement that justification for the Terry stop be
caused by the driver of the vehicle or even the person ultimately
charged with a crime.” Thomas at 709; See Strickland v. State, 923
S.W. 2d 617, 620 (Tex. App.—Houston [1st Dist.] 1995, no pet.).
Lastly, under the second prong of Terry, the court held that once the
officer approached Thomas during the stop, smelled alcohol, and
suspected he was drunk—the officer’s investigative detention
expanded to include driving while intoxicated. Id. at 710. Terry, 392
U.S. at 20; see Goudeau v. State, 209 S.W. 3d 713, 719 (Tex. App.—
Houston 14th Dist. 2006, no pet.) (“During an investigation of a
traffic violation, if an officer develops [a] reasonable suspicion that
another violation has occurred, the scope of the initial investigation
expands to include the new offense.”).
In the instant case, Appellant argues that she was illegally
detained because the officer stopped her without reasonable
suspicion. Appellant overlooks the highly suspicious nature of the
circumstances that led up to the stop, which provided Officer Brown
11 sufficient justification to conduct an investigative detention. It is
undisputed that Officer Brown, during his routine patrol, happened
upon an open and unattended vehicle late at night with no one in the
vicinity. As a veteran patrol officer familiar with the area, Officer
Brown knew the circumstances were out of the ordinary and he
immediately suspected the car may have been burglarized or that
some other criminal activity was afoot. As he prepared to stop and
continue his investigation, Officer Brown saw Appellant suddenly
appear and attempt to drive away in the suspicious car. At that point
in his investigation, Officer Brown could reasonably have reasonably
inferred that he was witnessing a possible burglary of a motor vehicle
become an unauthorized use of a motor vehicle. See State v. Kerwick,
393 S.W.3d 270, 276 (Tex. Crim. App. 2013) (officer may briefly
detain persons to establish their identities and ensure they have not
just committed offenses). Just as with other potential crimes
involving automobiles, the mobile nature of the car and its occupants
demands that an investigation of suspected criminal activity be
carried out in a time-sensitive manner. As the Court of Criminal
Appeals stated in Derichsweiler v. State:
12 Particularly with respect to information suggesting that a crime is about to occur, the requirement that there be “some indication that the unusual activity is related to crime” does not necessarily mean that the information must lead inexorably to the conclusion that a particular and identifiable penal code offense is imminent. It is enough to satisfy the lesser standard of reasonable suspicion the information is sufficiently detailed and reliable – i.e., it supports more than an inarticulate hunch or intuition – to suggest that something of an apparently criminal nature is brewing. 348 S.W. 3d 906, 917 (Tex. Crim. App. 2011)
In the instant case, the highly unusual circumstances for the
area and Appellant’s behavior provided Officer Brown with enough
specific, articulable facts to draw a reasonable inference that the
unusual activity was related to crime that had occurred, was
occurring, or was about to occur. The information he had was
sufficiently detailed and reliable to support more than an inarticulate
hunch that something of an apparently criminal nature was brewing.
Thus, he had reasonable suspicion to detain the Appellant and
investigate unusual circumstances he reasonably believed were
related to crime.
Appellant also argues that there was no evidence that she was
engaging in any criminal activity prior to the stop. App. Brief at 24.
Here, just as in Thomas, it was the investigating officer’s testimony
13 that Appellant’s car door was open, facing traffic. In fact, that is what
first drew Officer Brown’s attention to Appellant’s car. There is also
no dispute that Appellant’s car was parked in the 400 block of Twin
Creeks Drive, a public roadway. Similarly to Thomas, the facts in the
present case provided the investigating officer with a reasonable
suspicion that section 545.418 of the Texas Transportation Code was
being violated and, thus, provided sufficient justification for a Terry
stop. Like the officer in Thomas, Officer Brown’s initial investigatory
detention expanded to include a DWI investigation once he made
contact with Appellant and developed the reasonable suspicion that
she was driving while intoxicated. Finally, Appellant concedes that,
“There is no doubt that she was driving and little question from the
video evidence that she was impaired.” App. Brief at 18.
For all the above reasons, Officer Brown had reasonable
suspicion to detain Appellant to maintain the status quo and
determine whether some offense had been committed. Therefore, the
trial court properly denied the motion to suppress. This point is
without merit and should be overruled.
14 Prayer Appellant’s trial was without prejudicial error. The State prays
that this Court will affirm Appellant’s conviction and sentence.
Respectfully submitted,
Greg Willis Criminal District Attorney Collin County, Texas
John R. Rolater, Jr. Asst. Criminal District Attorney Chief of the Appellate Division
/s/ Erik F. Gierczyk Erik F. Gierczyk Asst. Criminal District Attorney 2100 Bloomdale Rd., Suite 200 McKinney, TX 75071 State Bar No. 24082333 (972) 548-3657 FAX (214) 491-4860 egierczyk@collincountytx.gov
15 Certificate of Service
The State has e-served counsel for Appellant, the Honorable
John Schomburger, through the eFileTexas.gov filing system and sent
a courtesy copy by e-mail to jschomburger@gmail.com on this, the 3rd
day of June 2015.
/s/ Erik F. Gierczyk Assistant Criminal District Attorney
Certificate of Compliance
This brief complies with the word limitations in Texas Rule of
Appellate Procedure 9.4(i)(2). In reliance on the word count of the
computer program used to prepare this brief, the undersigned attorney
certifies that this brief contains 2,443 words, exclusive of the sections
of the brief exempted by Rule 9.4(i)(1).
/s/ Erik F. Gierczyk Assistant Criminal District Attorney