PD-0467-15 PD-0467-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/24/2015 10:24:51 AM Accepted 4/24/2015 3:52:17 PM ABEL ACOSTA NO._________________ CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
CHARLES JEROME MCCLENTY Petitioner
v.
THE STATE OF TEXAS Respondent
Petition is in Cause No.1312934 from County Criminal Court No. Three of Tarrant County, Texas, and Cause No. 02-14-00184-CR in the Court of Appeals for the Second District of Texas
PETITION FOR DISCRETIONARY REVIEW
Kimberley Campbell TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Phone: (817) 222-3333 April 24, 2015 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorneys for Petitioner Charles Jerome McClenty IDENTITY OF PARTIES AND COUNSEL
The following is a list of all parties to the trial court’s final judgment, and the names and addresses of all trial and appellate counsel.
Trial Court Judge: H on. Billly M ills, judge, C ounty Criminal Court No. 3, Tarrant County
Petitioner: Charles Jerome McClenty
Petitioner’s Trial Counsel: Hon. Kimberley Campbell TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117
Petitioner’s Counsel Hon. Abe Factor on Appeal: TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117
Appellee: The State of Texas
Appellee’s Trial Counsel: Hon. Andrea Hunter TBN: 24089148 Hon. Jonathan Miller TBN: 24073569 District Attorney’s Office 401 W. Belknap Fort Worth, Texas 76196
Appellee’s Counsel Hon. Charles Mallin on Appeal: TBN: 12867400 Hon. Andy Porter TBN: 24007857 District Attorney’s Office 401 W. Belknap Street Fort Worth, Texas 76196
ii TABLE OF CONTENTS page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 1
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
I. The Court of Appeals erred when it affirmed the trial court’s denial of McClenty’s motion to suppress. . . . . . . . . . . . . . . . . . . 2
A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
D. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 0
E. Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
iii APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iv INDEX OF AUTHORITIES
Cases page
Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 7, 8
Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). . . . . . . . . 14, 16
State v. Castleberry, 332 S.W.3d 460 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . 9
Castro v. State, 202 S.W.3d 348 (Tex. App.–Fort Worth 2006, pet. ref’d). . . . . .16
United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). . . . . . . . . . . .1 5
Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . 11
Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . 11
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . 8, 9, 10
Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . 8
Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). . . . . . . . . . . . . . 1. 4, 15, 16
Garcia v. State, 43 S.W.3d 527 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . . 14
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . 7-8
v Head v. State, 131 Tex. Crim. 96, 96 S.W.2d 981 (1936). . . . . . . . . . . . . . . . . . . .1 2
Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . . 16
Holmes v. State, 323 S.W.3d 163 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . 17
Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). . . . . . . . . . 13
Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . 8
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013). . . . . . . . . . . . 8, 10, 12, 13
Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . 11, 13
McClenty v. State, 02-14-00186-CR,2015 WL 1407759 (Tex. App.– Fort Worth, March 26, 2015, no. pet. h.) (mem. op., not designated for publication). 2, 3, 6, 7
State v. Mendoza, 365 S.W.3d 666 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . 8
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . 17
Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). . . . . 8
Reed v. Buck, 370 S.W.2d 867 (Tex. 1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
vi Scott v. State, 227 S.W.3d 670 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . 17
Snowden v. State, 353 S.W.3d 817 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . 16
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . . 8, 9, 11, 14, 15
Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685 (1948). . . . . . . . . . . . . . . . . .1 2
Constitutions
U.S. C ONST. AMEND. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Statutes
T EX. P ENAL C ODE A NN. § 49.04(d) (West Supp. 2014). . . . . . . . . . . . . . .1
Court Rules
T EX. R. A PP. P. 44.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 17
vii STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
On January 30, 2013, Charles Jerome McClenty (“Mr. McClenty”
or “Appellant”) was charged by information and complaint with
driving while intoxicated. (C.R. 5, 6); See Tex. Penal Code Ann. §
49.04(d) (West Supp. 2014). On January 31, 2014, a hearing on Mr.
McClenty’s motion to suppress was held in County Criminal Court No.
Three of Tarrant County, the Honorable Billy Mills, presiding. (R.R.
passim). At the conclusion of the hearing, the trial court overruled Mr.
McClenty’s motion. (C.R. 17; R.R. 31). On March 12, 2014, Mr.
McClenty pled guilty to the charged offense. (C.R. 18, 19). A timely
Motion for New Trial was filed on March 18, 2014, which was
overruled by operation of law. (C.R. 20). A Timely Notice of Appeal
was filed on March 18, 2014. (C.R. 20). This appeal ensued.
STATEMENT OF PROCEDURAL HISTORY
The opinion of the Second Court of Appeals Affirming Mr.
McClenty’s judgment was handed down on March 26, 2015. See
1 McClenty v. State, 02-14-00186-CR,2015 WL 1407759 (Tex. App.–Fort
Worth, March 26, 2015, no. pet. h.) (mem. op., not designated for
publication). This timely Petition for Discretionary review ensued.
GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. The Court of Appeals erred when it affirmed the trial court’s denial of McClenty’s motion to suppress.
REASONS FOR REVIEW
1. The decision by the Second Court of Appeals has decided an
important question of state law in a way that conflicts with the
applicable decisions of the Court of Criminal Appeals.
2. The Second Court of Appeals has so far departed from the
accepted and usual course of judicial proceedings, or so far sanctioned
such a departure by a lower court, as to call for an exercise of the Court
of Criminal Appeals’ power of supervision.
ARGUMENT
GROUND FOR REVIEW ONE (Restated)
I. The Court of Appeals erred when it affirmed the trial court’s denial of McClenty’s motion to suppress.
At trial , Mr. McClenty filed a motion to suppress on the grounds
that the traffic stop which led to his arrest for suspicion of driving
2 while intoxicated was made without reasonable suspicion. See
McClenty, 2015 WL 1407759 at *1. Because this petition is predicated
upon error by the Second Court of Appeals in its review of Mr.
McClenty’s complaint on appeal, a review of the evidence presented
and events which transpired below is in order.
A. Facts
On January 26, 2013, Mark Allen, a manager at Roxie’s Bar and
Grill in North Richland Hills, Texas, called 9-1-1 to report a disturbance
in the parking lot. (R.R. 7-8, 10, 16). Officer Matthew Visser (“Officer
Visser”) was dispatched to the scene. (R.R. 16). During the examination
of Officer Vesser at the suppression hearing, the following transpired:
Q. When you pulled up to Roxie's what did you see?
A. When I pulled up to Roxie's the call indicated there was possibly six more persons possibly getting ready to fight or fight in the parking lot. When I pulled in the parking lot I noticed the manager, Mr. Allen, pointing out a vehicle that had left.
Q. Now, you said you noticed the manager, Mr. Allen. Had you had prior dealings with him before this particular date?
A. Yes, I have.
Q. And what had been the context of the other times that you had come in contact with him?
A. Most of the times it's been disturbances
3 involving intoxicated persons, persons that have been arrested for public intoxication.
Q. So at that point when you saw Mr. Allen, did you believe that he was the individual that had called the police or someone at his establishment?
A. Yeah, I believe so. I believe he was the contact person on our call sheet of who had called.
Q. So you said when you saw him what did you see him do?
A. He was indicating with his hand pointing at a vehicle going -- like indicating that the vehicle went that way.
Q. Okay. And did you see the vehicle that you believed him to be pointing to?
A. Yes, I did.
Q. What did you do at that point?
A. I saw the vehicle pulling into the pump area of a gas station. Once I located the vehicle, I initiated my lights. 1
* * *
Q. Had you had occasions in the past--you mentioned earlier in your testimony you had responded to Roxie's and people were arrested for public intoxication. Had you had occasion in the past to respond to Roxie's for fights or other altercations?
A. Yes.
Appellant was identified as the driver of the vehicle stopped by Officer Visser. (R.R. 20).
4 MS. CAMPBELL (Defense Attorney): Objection relevance.
THE COURT: Overruled.
Q. And so at the time that you initiated the traffic stop of the defendant, what were you stopping him for?
A. To investigate whether breach of the peace or an assaultive offense had taken place.
Q. (Defense Attorney): And at that time you stated that your probable cause for this arrest, under probable cause for arrest, was that you were informed by dispatch that one of the witnesses involved had just left the scene and that one of the subjects appeared as if they were going to fight. And you did not receive information that there was a fight, had you?
A. Not at that point, no.
Q. And when the general manager of Roxie's pointed to the car, he didn't tell you there had been a fight, did he?
A. No.
Q. So you didn't have any information that there had been a fight? You didn't have any information that anyone was intoxicated even, did you?
A. The only information I had, based off of what I had, was possibly a breach of peace.
MS. CAMPBELL: Pass the witness.
MS. HUNTER: One moment, Your Honor.
(Pause)
5 REDIRECT EXAMINATION
BY MS. HUNTER
Q. Just to clarify, Officer Visser, you were dispatched to a disturbance?
A. That is correct.
Q. Okay. And at that point you didn't know for sure if the disturbance was verbal or physical?
A. It had indicated the people were ready to fight. As I'm getting closer to the scene itself, dynamics, we don't know whether a fight had occurred, that information is relayed to our dispatch, if there's more information that's relayed to them. So I had no idea whether they were still on the line with the complainant, person who had called, or whether or not an assault had occurred.
Q. But at that point when you arrived, what you knew was that the bar manager was pointing to someone that you believed to be involved in this either verbal or physical altercation?
A. Correct.
(R.R. 17-18, 21-22, 23-25).
The trial court subsequently denied the motion to suppress. (C.R. 17; R.R. 31).
B. Opinion Below
The court of appeals correctly identified the standard of review
to be utilized by a reviewing court when assessing a trial court’s denial
of a motion to suppress. See McClenty, 2015 WL 1407759 at *1 (“We
6 review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review.”) (citations omitted). The court further
correctly set forth the legal test used in assessing a finding of
reasonable suspicion. Id. at *2 (“Reasonable suspicion exists when,
based on the totality of the circumstances, the officer has specific,
articulable facts that when combined with rational inferences from
those facts, would lead him to reasonably conclude that a particular
person is, has been, or soon will be engaged in criminal activity.”)
(citations omitted).
However, the court of appeals then misapplied those correctly-
stated fundamentals in affirming the trial court’s ruling.2 Id. at *3.
C. Controlling Law
1. Standard of Review
An appellate court must review a trial court’s ruling on a motion
to suppress evidence under a bifurcated standard of review. Amador v.
State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955
Curiously, the court of appeals “supplemented” the evidence presented at the suppression hearing when it “enriched” the detaining officer’s testimony by adducing that the officer “might have meant” disorderly conduct when he mentioned breach of the peace on the witness stand. See McClenty, 2015 WL 1407759 at *2 n.3.
7 S.W.2d 85, 89 (Tex. Crim. App. 1997). The reviewing court will give
almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation
of credibility and dem eanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and
demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604,
607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.
Crim. App. 2002). In unlawful- detention cases, whether the facts
known to the officer at the time of the detention constituted a
reasonable suspicion is reviewed do novo. Ornelas v. United States, 517
U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); State v.
Mendoza, 365 S.W.3d 666, 670 (Tex. Crim. App. 2012).
2. General Fourth Amendment Principles
“The Fourth Amendment to the United States Constitution
permits a warrantless detention of a person, short of a full-blown
custodial arrest, if the detention is justified by reasonable suspicion.”
State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013), citing Terry
v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
Detentions and arrests are Fourth Amendment seizures and therefore
8 implicate Fourth Amendment protections. State v. Castleberry, 332
S.W.3d 460, 466 (Tex. Crim. App. 2011). “[W]hen a seizure takes the
form of a detention, Fourth Amendment scrutiny is necessary-it must
be determined whether the detaining officer had reasonable suspicion
that the citizen is, has been, or is about to be engaged in criminal
activity.” Id. (citations omitted).
Under the Fourth Amendment, a warrantless detention of the
person that amounts to less than a full-blown custodial arrest must be
justified by a reasonable suspicion. See Derichsweiler, 348 S.W.3d at 914.
A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, combined with rational inferences from those
facts, would lead him reasonably to conclude that the person detained
is, has been, or soon will be engaged in criminal activity. See Terry, 392
U.S. at 21–22, 88 S.Ct. at 1880. This standard looks to the totality of the
circumstances; if the circumstances combine to reasonably suggest the
imminence of criminal conduct, an investigative detention is justified.
Derichsweiler, 348 S.W.3d at 914. An appellate court will consider the
cumulative information known to the cooperating officers, including
a 911 dispatcher. Id. at 914–15. When, as here, a known
citizen-informant provides information, the only question is whether
9 that information, viewed through the prism of the detaining officer’s
particular level of knowledge and experience, objectively supports a
reasonable suspicion to believe that criminal activity is afoot. Id. at 915.
D. Discussion
The manager of the bar, Mark Allen, testified at the hearing that
on the night in question, he observed an argument, that no physical
violence ever occurred, he never heard Mr. McClenty make any
physical threats against anyone, and that when he was asked to leave
the club, Mr, McClenty complied. (R.R. 11-13). Additionally, Officer
Visser admitted at the hearing that he had not had any reports of a
fight occurring, either from his dispatcher or from Mr. Allen. (R.R. 23-
25).
In Kerwick,3 393 S.W.3d at 275, a 9-1-1 caller had notified the
police that “several people were fighting in front of [the] bar”; and the
responding officer spoke with the owner of a car damaged in the
altercation, who pointed out the vehicle the person responsible was a
passenger. Id. Noticeably different from the case here, in Kerwick, there
In her closing argument, the prosecutor stated that Kerwick was controlling in this instance. (R.R. 30). As will be shown below, however, the facts here distinguish the instant case from Kerwick.
10 was a crime reported by the 9-1-1 caller–assault–and the responding
officer personally observed the result of another crime–criminal
mischief. The State’s own witnesses here could not articulate anything
occurring on the night in question except for an argument; more
importantly, nothing more was reported in the 9-1-1 call to have
occurred, either. (R.R. 11-13, 23-25).
To justify an investigative detention, the officer must have
specific articulable facts, which, premised upon his experience and
personal knowledge, when coupled with the logical inferences from
those facts would warrant the intrusion on the detainee. Davis v. State,
947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (quoting Terry v, 392 U.S. at
21, 88 S.Ct. at 1880. These facts must amount to more than a mere
hunch or suspicion. See Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim.
App. 2010). The articulable facts used by the officer must create some
reasonable suspicion that some activity out of the ordinary is occurring
or has occurred, some suggestion to connect the detainee with the
unusual activity, and some indication the unusual activity is related to
crime. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).
An argument is most assuredly not a crime. Nor under the fact
reported and known to Officer Visser, is an argument related to a
11 crime. The absolute paucity of the information known to Officer Visser
is aptly shown where he candidly admits that “[t]he only information
I had, based off of what I had, was possibly a breach of peace.” (R.R.
25). However, an objective belief in “possibly a breach of the peace” is
not supported here under the facts. Critically–and as ignored by the
court of appeals–“[a]ctual or threatened violence is an essential element
of a breach of the peace.” Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d
685, 687 (1948) (quoting Head v. State, 131 Tex. Crim. 96, 99, 96 S.W.2d
981, 982 (1936)).4 As stated previously, no violence occurred, was
threatened, or reported. (R.R. 11-13, 23-25). The absence of violence or
threats of violence distinguishes the instant case from the facts set forth
in Kerwick, where actual physical violence was reported by the 9-1-1
caller. See Kerwick, 393 S.W.3d at 275. Further, though public
intoxication might under some circumstances be considered a breach
of the peace, Officer Visser had no reports that anyone involved in the
argument was intoxicated. (R.R. 24).
Further separating the instant case from Kerwick are the events
See Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex. 1963) (explaining simply because certain cases had “not been cited in recent years,” such “ancient cases” do not “just fade[ ] away”; instead, “unless there is some good reason for overruling them, they should not be disregarded”).
12 surrounding Officer Visser’s initial detention of Mr. McClenty and
McClenty’s peaceful departure from the scene. In Kerwick, the driver of
the suspect vehicle had attempted to drive away after the responding
officer approached her vehicle, a circumstance which the Court of
Criminal Appeals held to be suggestive of wrongdoing and a factor to
be considered under the totality of the circumstances in a reasonable
suspicion analysis. See id. at 276 (citing Illinois v. Wardlow, 528 U.S. 119,
125-26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Here, Mr. McClenty’s
vehicle had already left Roxie’s Bar when Officer Visser arrived, and
had gone so far as to pull into a nearby gas station parking lot. (R.R.
23). Mark Allen testified that Mr. McClenty’s vehicle was already out
of his sight when Officer Visser’s patrol car arrived. (R.R. 9). Unlike the
facts in Kerwick, McClenty’s departure was not in response to an
approach by the police, further negating any support for a reasonable
suspicion that McClenty was involved in unusual activity that was
somehow related to crime. C.f., Kerwick, 393 S.W.3d at 276; see also
Martinez, 348 S.W.3d at 923.
The de novo determination of reasonable suspicion is considered
under the totality of the circumstances from an objective standpoint,
disregarding the subjective intent of the detaining officer. Garcia v.
13 State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The record here
reveals an absence of any facts allowing an appellate court to determine
the circumstances upon which Officer Visser could reasonably
conclude that Mr. McClenty actually was, had been, or soon would
have been engaged in criminal activity. See Ford v. State, 158 S.W.3d 488,
493 (Tex. Crim. App. 2005) (citing Garcia, 43 S.W.3d at 530).
When a trial court is not presented with such facts, the detention
cannot be “subjected to the more detached, neutral scrutiny of a judge
who must evaluate the reasonableness of a particular search or seizure
in light of the particular circumstances.” Ford, 158 S.W.3d at 493
(quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). And “[w]hen such a stop
is not based on objective criteria, the risk of arbitrary and abusive
police practices exceeds tolerable limits.” Ford, 158 S.W.3d at 493
(quoting Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357
(1979)(alterations in citing authority).
Finally, Officer Visser opined that many of his previous dealings
with Mark Allen and his service calls to Roxie’s Bar had dealt with
persons who were intoxicated. (R.R. 18, 21). It is true that law
enforcem ent training or experience m ay factor into a
reasonable-suspicion analysis. Ford, 158 S.W.3d at 494 (quoting United
14 States v. Cortez, 449 U.S. 411, 419, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
The United States Supreme Court has stated, “objective facts,
meaningless to the untrained, can be combined with permissible
deductions from such facts to form a legitimate basis for suspicion of
a particular person and for action on that suspicion.” Ford, 158 S.W.3d
at 494 (quoting Cortez, 449 U.S. at 419, 101 S.Ct. 690). “But reliance on
this special training is insufficient to establish reasonable suspicion
absent objective factual support.” Ford, 158 S.W.3d at 494 (citing Cortez,
449 U.S. at 419, 101 S.Ct. 690). Though a report of possibly intoxicated
persons in or near Roxie’s Bar is nowhere in the record, it is of
particular note that in his probable cause arrest affidavit made
pertaining to Mr. McClenty’s arrest, Officer Visser testimony revealed
that he made no mention of possible intoxication as a supporting fact
or inference for his initial detention of Mr. McClenty. (R.R. 22-24).
Officer Visser was without specific, articulable facts that, combined
with rational inferences from those facts, would lead him reasonably
to conclude that Mr. McClenty was, had been, or soon would be
engaged in criminal activity. See Terry, 392 U.S. at 21–22, 88 S.Ct. at
1880. Thus, the detention of Mr. McClenty was arbitrary, abusive, and
exceeded tolerable limits. Ford, 158 S.W.3d at 493 (quoting Brown, 443
15 U.S. at 52, 99 S.Ct. 2637).
The trial court erred when it denied Mr. McClenty’s motion to
suppress. U.S. C ONST. AMEND. IV; see also Ford, 158 S.W.3d at 494.
E. Harm Analysis
Having found error, this Court must conduct a harm analysis to
determine whether the error calls for reversal of the judgment. See T EX.
R. A PP. P. 44.2. The harm analysis for the erroneous admission of
evidence obtained in violation of the Fourth Amendment is rule
44.2(a)’s constitutional standard. Hernandez v. State, 60 S.W.3d 106, 108
(Tex. Crim. App. 2001); Castro v. State, 202 S.W.3d 348, 359 (Tex.
App.–Fort Worth 2006, pet. ref’d). Accordingly, this Court must reverse
the trial court’s judgment unless it can determine beyond a reasonable
doubt that the error did not contribute to Appellant’s conviction or
punishment. T EX. R. A PP. P. 44.2(a). The harmless error inquiry under
Rule 44.2(a) should adhere strictly to the question of whether the error
committed in a particular case contributed to the verdict obtained in
that case. Snowden v. State, 353 S.W.3d 817, 821 (Tex. Crim. App. 2011).
A reviewing court is called on to examine whether the error adversely
affected “the integrity of the process leading to the conviction.” Scott v.
State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007). The primary concern
16 is whether there is a “reasonable possibility” that the error might have
contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998).
The question is whether the trial court’s denial of Mr. McClenty’s
motion to suppress contributed to McClenty’s decision to plead guilty.
See, e.g., Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim. App. 2010).
The plea agreement in this case contain the handwritten notation that
“Defendant reserves right to appeal denial of pretrial motion.” (C.R.
18). Such a specific reference affirmatively demonstrates that the denial
of his motion to suppress is what directly caused Mr. McClenty to
decide to enter a guilty plea. Therefore, this Court cannot determine
beyond a reasonable doubt that the trial court’s erroneous denial of Mr.
McClenty’s motion to suppress did not contribute to his conviction or
punishment. Tex. R. App. P. 44.2(a).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that this Court grant discretionary review and allow each party
to fully brief and argue the issues before the Court of Criminal
Appeals, and that upon reviewing the judgment entered below, that
this Court reverse the opinion of the Second Court of Appeals and
17 reverse the conviction entered below.
Respectfully submitted,
/s/Kimberley Campbell Kimberley Campbell TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorneys for Petitioner Charles Jerome McClenty
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 4,416.
/s/Kimberley Campbell Kimberley Campbell
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant County District Attorney by a manner compliant with the Texas Rules of Appellate Procedure, on this 27th day of April , 2015.
18 APPENDIX
1. Opinion of the Second Court of Appeals.
19 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00184-CR
CHARLES JEROME MCCLENTY APPELLANT
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 1312934
MEMORANDUM OPINION1
I. INTRODUCTION
suppress, he pleaded guilty to driving while intoxicated. In one issue, McClenty
argues that the trial court abused its discretion by denying his suppression
1 See Tex. R. App. P. 47.4. motion because the arresting officer allegedly lacked reasonable suspicion to
stop him. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Mark Allen, the general manager of a bar, called 911 because a verbal
altercation between McClenty and others at the bar
Allen described McClenty as the most irate person involved. Officer Matthew
Visser responded to the call. From the dispatch, he understood that six or more
y to fight Officer
Visser knew Allen from prior calls involving intoxicated persons.
When Officer Visser arrived at the bar about two or three minutes after the
call, he saw Allen standing outside pointing at a car that was leaving; Allen was
pointing loudly
there. . . . [T]hat vehicle Officer Visser followed
McClenty and stopped him by activating his lights and siren.
Officer Visser testified that he stopped McClenty to investigate whether a
breach of the peace or an assault had taken place. When Officer Visser began
talking with McClenty, he smelled a strong odor of alcoholic beverage and
eyes were bloodshot and watery and that he was
speaking kind of thick- Officer Visser arrested McClenty for driving
while intoxicated, and McClenty moved to suppress the evidence of his
intoxication, arguing that Officer Visser lacked reasonable suspicion to stop his
car.
2 III. STANDARD OF REVIEW
W
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652 53 (Tex. Crim. App. 2002).
When, as here, there are no explicit fact findings and neither party timely
requested findings and conclusions from the trial court, we imply the necessary
orts those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v.
State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We then review the trial
novo unless the implied fact findings supported by the
record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808,
819 (Tex. Crim. App. 2006).
3 IV. REASONABLE SUSPICION FOR AN INVESTIGATIVE STOP
A. The Law on Reasonable Suspicion
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
officer conducts a lawful temporary detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the
circumstances, the officer has specific, articulable facts that when combined with
rational inferences from those facts, would lead him to reasonably conclude that
a particular person is, has been, or soon will be engaged in criminal activity.
Ford, 158 S.W.3d at 492.
B. Application of the Law to the Facts
Officer Visser had specific, articulable facts that provided reasonable
suspicion to believe McClenty had violated the law. Specifically, Officer Visser
could have reasonably suspected that McClenty had assaulted someone2 or had
2 A person commits an assault by intentionally, knowingly, or recklessly causing bodily injury to another or by intentionally or knowingly threatening another with imminent bodily injury. See Tex. Penal Code Ann. § 22.01 (West Supp. 2014).
4 committed disorderly conduct.3 Officer Visser received information that a fight
was imminent, and there was a lapse of two to three minutes between his receipt
of this information and his arrival at the bar. Upon arriving, Allen, whom Officer
Visser knew from previous encounters, identified McClenty as a culprit. Because
McClenty was leaving, Officer Visser faced the decision of letting him go while he
stayed to clarify with Allen what had occurred or of stopping McClenty to
investigate his involvement in the anticipated fight. As the court of criminal
appeals observed
shrug his shoulders and allow . . . a criminal to escape. On the contrary, Terry
recognizes that it may be the essence of good police work to adopt an
State v. Kerwick, 393 S.W.3d 270, 276 (Tex. Crim. App.
2013) (quoting Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923
(1972)).
The facts of this case are similar to those in Kerwick. In Kerwick, an officer
was dispatched to a bar in response to a reported fight. Id. at 272. On arriving,
3 Officer Visser did not mention disorderly conduct (although he might have breach of the peace is not a codified offense but is mentioned in the disorderly-conduct statute), but our determination of whether he had reasonable suspicion looks to whether any objective basis for the stop existed. See Ford, 158 S.W.3d at 492. A person commits disorderly conduct by intentionally or knowingly using abusive, indecent, profane, or vulgar language in a public place that tends to incite an immediate breach of the peace; abusing or threatening a person in a public place in an obviously offensive manner; making unreasonable noise in a public place; or fighting with another in a public place. See Tex. Penal Code Ann. § 42.01(a)(1), (4) (6) (West Supp. 2014).
5 Id.
The officer approached
car on foot, but the car began to move, and the officer ordered
Kerwick, who was the driver, to stop. Id. When the officer talked to Kerwick, the
officer smelled a strong odor of alcohol and observed that Kerwick had bloodshot
and watery eyes. Id. The officer arrested Kerwick for driving while intoxicated,
and Kerwick moved to suppress the evidence of intoxication on the grounds that
the officer lacked reasonable suspicion to stop her. Id. at 271. The court of
criminal appeals disagreed with Kerwick, holding that
[i]n light of the damaged vehicle and the presence of several people outside of the bar after a report of several people fighting, and the
unidentified person] provided a rational basis for [the Officer] to infer that the person whose vehicle was damaged was a potential crime victim and was identifying the person or persons responsible for the damage.
Id. at 276.
Like the officer in Kerwick, Officer Visser was dispatched to quell a
disturbance at a bar, and upon arriving at the bar, someone directed him to follow
a person seemingly responsible for the disturbance. The facts of this case are
stronger than those in Kerwick, however, because Officer Visser knew the
person directing him; in Kerwick, the officer followed the directive of an
See id. at 272. Here, Officer Visser knew Allen, had
worked with him in the past relating to disruptive bar patrons, received the 911
6 call from Allen,4 and recognized Allen when he arrived.
informant was known to him personally and had provided him with information in
the past. This is a stronger case than obtains in the case of an anonymous
Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923
(1972); see Derichsweiler, 348 S.W.3d at 914 (emphasizing the higher reliability
of known citizen-informants).
Because the totality of the circumstances provided specific, articulable
facts that, when combined with rational inferences from those facts, lead Officer
Visser to reasonably conclude McClenty had engaged in criminal activity, we
hold that the trial court did not abuse its discretion by denying his motion to
suppress. See Ford, 158 S.W.3d at 492; see also Kerwick, 393 S.W.3d at 276
(holding in similar but weaker circumstances that reasonable suspicion of
criminal activity existed).
V. CONCLUSION
sole
/s/ Sue Walker SUE WALKER JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
to the cooper Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
7 DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2015