Clement v. State

530 S.W.3d 154
CourtCourt of Appeals of Texas
DecidedMay 7, 2015
DocketNo. 11-13-00055-CR
StatusPublished
Cited by1 cases

This text of 530 S.W.3d 154 (Clement v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clement v. State, 530 S.W.3d 154 (Tex. Ct. App. 2015).

Opinion

OPINION ON STATE’S MOTION FOR REHEARING

JOHN M. BAILEY, JUSTICE

The State has filed a motion for rehearing’ wherein it alleges that' Appellant did not properly preserve? for appellate review, his complaint that 'his arrest was illegal. The State bases its preservation contention on two grounds: (1) that Appellant failed to put the State and the trial court on notice that he was contesting the legality of his arrest and (2) that Appellant’s presentation of the contention during the closing argument was untimely under Tex. Code Crim. Proc. Ann. art, 28.01, § 2 (West 2006).

Preservation of error , is a systemic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex.Crim.App. 2009). If an issue has not been preserved for appeal, an intermediate court of appeals should not address the merits of that issue.. Id. Even though the State did not assert a preservation contention in its initial briefing, we previously reviewed the question of .preservation of error on our own initiative and tacitly addressed it in our original opinion by listing the instances wherein Appellant’s counsel addressed the probable cause supporting Appellant’s arrest. See id. at 532-33 (“Ordinarily, a court of appeals should review preservation of error on its own motion.”); Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App. 1997) (“Preservation of error is a systemic requirement that ,a first-level appellate [156]*156court should ordinarily review on its own motion.”).

There are three distinct types of police-citizen interactions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App.2013); State v. Woodard, 341 S.W.3d 404, 410-11 (Tex.Crim.App.2011). The facts in this appeal essentially present three “seizures” for the purpose of analysis under the Fourth Amendment: (1) Trooper Johnson’s initial traffic stop of Appellant; (2) Trooper Johnson’s continued detention of Appellant for the purpose of investigating a possible offense of driving while intoxicated; and (3) Trooper Johnson’s arrest of Appellant for driving while intoxicated.

In the context of the three types of police-citizen interactions described above, Trooper Johnson’s initial stop and then his continued detention of Appellant for investigative purposes was an “investigative detention” that must have been supported by reasonable suspicion.1 See Davis v. State, 947 S.W.2d 240, 244-45 (Tex.Crim.App. 1997) (If an officer develops reasonable suspicion during a valid traffic stop that the detainee is engaged in criminal activity, continued detention is justified.). Trooper Johnson’s subsequent arrest of Appellant constituted another level of seizure that must have been supported by the heightened standard of probable cause in order to satisfy the Fourth Amendment. See Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex.Crim.App.2011) (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)) (“A brief investigative detention constitutes a significantly lesser intrusion upon the privacy and integrity of the person than a full-blown custodial arrest. For this reason, a war-rantless investigative detention may be deemed ‘reasonable’ for Fourth Amendment purposes on the basis of a lesser quantum or quality of information—reasonable suspicion rather than probable cause.”).

As noted in our original opinion, the State treated Appellant’s written motion to suppress as solely an attack on the arresting officer’s basis for initiating the traffic stop. In this regard, Appellant’s motion to suppress addressed the credibility of the anonymous tip and its corroboration by the investigating officer. The prosecutor easily overcame this contention by establishing that Trooper Johnson stopped Appellant for a speeding violation rather than upon reliance on the anonymous tip. However, Appellant also alleged a lack of probable cause, the standard that is associated with the required basis for supporting an arrest. Furthermore, the inquiry at the hearing on the motion to suppress into Trooper Johnson’s actions did not end with his initial basis for stopping Appellant. Specifically, Appellant’s counsel ' inquired on cross-examination about what transpired after the stop. As we stated in the original opinion:

[157]*157Appellant’s counsel further elicited testimony from Trooper Johnson during' cross-examination that Appellant refused to perform any field sobriety tests and that Appellant told Trooper Johnson what he had to drink. Near the end of counsel’s brief cross-examination, he asked Trooper Johnson: “So, you arrested him, based upon the odor of alcohol on his breath?” Trooper Johnson replied in the affirmative.

During closing arguments on the motion to suppress, Appellant’s counsel argued as follows:

And he smells alcohol on his breath, so he doesn’t do any tests, doesn’t do anything. No evidence of intoxication except alcohol on his breath, and he’s arrested for DWI.
It’s our position that anything after the stop should be suppressed, because there’s no probable cause for his arrest.
The arrest led to an interview. The interview led to a mandatory blood draw, based upon the belief that it was his third DWI.

We concluded that Appellant preserved his complaint regarding the probable cause supporting his arrest based in part on counsel’s closing argument to the trial court that “there’s no probable cause for [Appellant’s] arrest.”

The clearest assertion by Appellant that Trooper Johnson lacked probable cause to arrest him occurred during the closing statement when defense counsel said: “[TJhere’s no probable cause for his arrest ” (emphasis added). The State contends that this statement did not constitute a challenge to the legality of Appellant’s- arrest because it followed counsel’s request to suppress “anything after the stop” The State argues that the alleged violation was incongruous with the requested relief because the illegality of the subsequent arrest would not preclude the admissibility of evidence seized prior to the illegal arrest. The State is essentially asserting that, when defense counsel made this argument, Appellant was challenging Trooper Johnson’s initial basis for stopping Appellant. We disagree with the State’s very narrow reading of defense counsel’s argument.

Trooper Johnson’s arrest of Appellant constituted a seizure under the Fourth Amendment that required a showing under the heightened standard of probable cause. Defense counsel’s argument invoked the probable cause standard in challenging Appellant’s arrest.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Sean Michael McGuire
Court of Appeals of Texas, 2019

Cite This Page — Counsel Stack

Bluebook (online)
530 S.W.3d 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clement-v-state-texapp-2015.