Opinion issued December 4, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00956-CR
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KERRY BERNARD LAURENT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 15
Harris County, Texas
Trial Court Case No. 1886153
OPINION
Appellant, Kerry Bernard Laurent, was charged by information with
interference with public duties.1 Appellant filed motions to quash and to suppress.
After a hearing, the trial court denied the motions. Appellant pleaded guilty
1
See TEX. PENAL CODE ANN. § 38.15(a) (Vernon 2011).
pursuant to a plea agreement, subject to his right to challenge the ruling on the
motions on appeal. In one issue on appeal, Appellant argues that the trial court
should have granted his motions because the stipulated evidence established that
the State could not prove that there were any public duties with which Appellant
could have interfered.
We affirm.
Background
Officer M. Contreras is an officer with the Houston Police Department. He
was driving to work on the morning of March 24, 2013 when he observed a vehicle
on the side of the road, which appeared to have been involved in an accident.
Officer Contreras stopped to investigate. During that time, Appellant drove up, got
out of his vehicle, and became confrontational with Officer Contreras. After
Appellant refused his instructions to leave the scene of the accident, Officer
Contreras arrested Appellant. The parties stipulated at trial that Officer Contreras
was outside of the jurisdiction of the Houston Police Department at all relevant
times.
After he was charged, Appellant filed a motion, entitling it as both a motion
to quash and a motion to suppress. Appellant argued that, because he was outside
of his jurisdiction, Officer Contreras did not have any duties or authority imposed
or granted by law with which Appellant could have interfered. Appellant asked the
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court “to quash this information for failure to state a cause of action, and to
suppress all evidence obtained by Officer Contreras in this case.”
The trial court held a hearing on the motions. Appellant and the State
stipulated to the facts relevant to the determination of whether Officer Contreras
was performing any public duties at the time in question. At the end of the
hearing, the trial court denied the motions. A month later, Appellant entered into a
plea agreement with the State subject to his right to appeal the trial court’s denial
of his motions. The trial court accepted the plea agreement, found appellant
guilty, assessed punishment as time already served, and certified Appellant’s
limited right to appeal.
Motion to Quash and to Suppress
In his sole issue on appeal, Appellant argues that the trial court should have
granted his motions because the stipulated evidence established that the State could
not prove that there were any public duties with which Appellant could have
interfered. The State argues that this complaint has not been preserved for appeal.
We agree.
A motion to quash challenges whether the charging instrument alleges “on
its face the facts necessary to show that the offense was committed, to bar a
subsequent prosecution for the same offense, and to give the defendant notice of
precisely what he is charged with.” DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.
3
Crim. App. 1988) (emphasis added); see also TEX. CODE CRIM. PROC. ANN.
art. 27.08 (Vernon 2006) (identifying only permissible exceptions to indictments or
informations). It cannot be used to challenge the sufficiency of the evidence to
support an element of the alleged offense. Lawrence v. State, 240 S.W.3d 912, 916
(Tex. Crim. App. 2007); see also State v. Kinkle, 902 S.W.2d 187, 190 (Tex.
App.—Houston [14th Dist.] 1995, no pet.) (holding trial court may not look behind
indictment to determine whether evidence supports indictment).
A motion to suppress is brought to exclude evidence from trial that was
obtained “in violation of any provisions of the Constitution or laws of the State of
Texas, or of the Constitution or laws of the United States of America.” TEX. CODE
CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). It cannot be used to suppress
evidence on an illegal arrest itself. Woods v. State, 153 S.W.3d 413, 415 n.9 (Tex.
Crim. App. 2005).
Appellant’s motions did not identify any facial defects in the information,
nor did they identify any evidence obtained as a result of his arrest that should be
excluded from trial. Accordingly, Appellant failed to present any proper grounds
for the trial court to grant a motion to quash or a motion to suppress.
4
Instead, Appellant argued in his motions that the evidence was insufficient
to support at least one element of the charged offense. 2 “The purpose of a pre-trial
motion is to address preliminary matters, not the merits of the case itself.” Id. at
415. A “pre-trial motion, cannot be used to ‘argue that the prosecution could not
prove one of the elements of the crime.’” Lawrence, 240 S.W.3d at 916 (quoting
Woods, 153 S.W.3d at 415). This is true even if the challenge would require only a
legal determination. State v. Boado, 8 S.W.3d 15, 17 (Tex. App.—Houston [1st
Dist.] 1999), pet. dism’d, improvidently granted, 55 S.W.3d 621 (Tex. Crim. App.
2001). A trial court “grievously errs” if it makes sufficiency-of-the-evidence
determinations pretrial. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim.
App. 1994). We hold that Appellant’s pretrial motions and the subsequent hearing
have not presented anything for our review.
Appellant points out that, as part of the plea agreement, the State stipulated
before the trial court that it would “not argue on appeal that the issue was not
preserved at the trial court level.” Regardless of whether the State has violated this
stipulated agreement and of whatever consequences may follow from any such
2
As it applies to Appellant, “[a] person commits an offense if the person with
criminal negligence interrupts, disrupts, impedes, or otherwise interferes with a
peace officer while the peace officer is performing a duty or exercising authority
imposed or granted by law.” PENAL § 38.15(a)(1). Appellant argued in his
motions that, because he was not operating within the jurisdiction of the Houston
Police Department, Officer Contreras could not have been “performing a duty or
exercising authority imposed or granted by law.”
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violation, this Court is required to determine that a matter has been preserved for
appeal before considering the merits of the argument. See TEX. R. APP. P. 33.1(a)
(establishing preservation of complaint at trial court level as prerequisite to
presenting complaint on appeal). Accordingly, preservation of a complaint is a
matter that we must consider regardless of any agreements between the parties to
not brief it.3
Appellant relies on a Corpus Christi Court of Appeals opinion to argue that a
motion to quash attacking the legal sufficiency of the charging instrument can be
challenged on appeal. See Cuellar v. State, 957 S.W.2d 134 (Tex. App.—Corpus
Christi 1997, pet. ref’d). In Cuellar, the defendant had been charged with
intoxication manslaughter. Id. at 136. The defendant brought a motion to quash,
arguing the complainant was a fetus “and, therefore, was not an ‘individual’ within
the legal meaning of that term.” Id. The State argued that the matter could not be
considered on appeal because it had been raised in a motion to quash. Id. at 137.
The court of appeals held that, because it had participated in the hearing, stipulated
to evidence, and “agreed to the stipulations ‘in the interests of a speedy resolution
3
Because the parties did, in fact, brief the matter of preservation, we do not need to
determine whether an agreement between the parties not to brief the court on a
matter that the court is required to consider could amount to a violation of the duty
of candor to the court or would otherwise be void as against public policy. See
Tex. Disciplinary Rules Prof’l Conduct R. 3.03(a)(4), reprinted in TEX. GOV’T
CODE ANN. tit. 2, subtit. G, app. A (Vernon 2005) (Tex. State Bar R., art. X, § 9).
6
of questions of law,’” the State was barred from challenging consideration of the
complaint on appeal. Id.
We begin by noting that the appeal in Cuellar followed a trial on the merits.
Id. at 136. Accordingly, it was entirely proper to consider the issue on appeal,
albeit as a challenge to the sufficiency of the evidence rather than as a challenge to
the motion to quash. We also note that this holding in Cuellar has not been applied
in the 17 years since its issuance. Instead, one court of appeals has declined to
follow it and recognized that the opinion has been strongly criticized. State v.
Rogers, 138 S.W.3d 524, 527 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(citing 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice
and Procedure § 21.32 (2001)).
Furthermore, we find the application of the holding in Cuellar to be
unworkable. By applying Cuellar, we would effectively be holding that the State’s
participation in the hearing and stipulating to evidence creates preservation on a
pretrial motion that does not exist. See Rosenbaum, 910 S.W.2d at 948 (holding
“there is no constitutional or statutory authority for an accused to raise and for a
trial court to determine sufficiency of the evidence to support or defeat an alleged
element of an offense” pretrial and trial court “grievously errs” by ruling on
sufficiency of evidence pretrial).
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Upon such a holding, we would then have to determine how to review this
otherwise nonexistent motion. As we have held, despite the motion’s title,
Appellant did not actually file a motion to quash or a motion to suppress. We have
no justification, then, to rely on the standard of review for either motion. A motion
to quash does not involve the consideration of evidence. See DeVaughn, 749
S.W.2d at 67 (holding motion to quash challenges facial validity of charging
instrument). Accordingly, its standard of review provides no instruction on how to
review the evidence in this case.
A motion to suppress is a specialized challenge to the admissibility of
evidence. Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012). Appellant
is not seeking to exclude any evidence. Accordingly, there is no reason to
conclude that the standard of review for a motion to suppress is applicable here.
Absent further guidance from the Court of Criminal Appeals about whether
preservation can be created in this manner and about the proper standard of review,
we decline to adopt the holding of Cuellar.
Appellant also argues that “where the parties agree to stipulate to certain
facts and the court accepts that stipulation, where the parties argue the proper
application of the law to those facts, and where the parties agree not to argue the
preservation issue on appeal, the State is precluded from” arguing that the Court
cannot consider the sufficiency of the evidence to support the information. This is,
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in essence, an estoppel argument. There are at least two forms of estoppel in
criminal cases: estoppel by judgment and estoppel by contract. Ex Parte Parrott,
396 S.W.3d 531, 541 (Tex. Crim. App. 2013). Estoppel by judgment prevents a
party that has accepted the benefits of a judgment from challenging its validity and
from rejecting its burdensome consequences. Id. Estoppel by contract has the
same effect on contracts. Id. A party who accepts the contract’s benefits cannot
later challenge its validity. Id.
Appellant argues that, by obtaining a guilty plea agreement—and the
subsequent judgment—of guilt when the legal sufficiency of the charged offense is
questionable, the State is estopped from preventing the consideration of the
sufficiency of that evidence when such a review was a condition of Appellant’s
plea of guilt. We reject this argument for the same reasons we reject the argument
of waiver. By applying estoppel to this situation, we would be reviewing the trial
court’s ruling on a matter it is not permitted to consider under a standard of review
that does not exist.
We are cognizant that the disposition of this opinion frustrates a central
condition of Appellant’s agreement to plead guilty. Appellant has not challenged
on appeal the continuing validity of his plea agreement, however. Additionally,
our disposition does not leave Appellant without any relief for any harm he may
have suffered. See TEX. CODE CRIM. PROC. ANN. art. 11.09 (Vernon 2005).
9
We overrule Appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Bland, and Sharp.
Publish. TEX. R. APP. P. 47.2(b).
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