PD-1664-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/4/2015 12:19:57 PM
Accepted 2/6/2015 2:35:03 PM
ABEL ACOSTA
CLERK
PD-1664-14
IN THE
COURT OF CRIMINAL APPEALS
AT AUSTIN
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
NO. 01-13-00259-CR
IN THE
FIRST DISTRICT COURT OF APPEALS
HOUSTON, TEXAS
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
February 6, 2015
ALYSSA PULLEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
CAUSE NO. 1817849
IN COUNTY CRIMINAL COURT AT LAW NO. 4
HARRIS COUNTY, TEXAS
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
GARY S. MILLER
State Bar No: 24051050
1018 Preston St., Suite 500
Houston, TX 77002
tel: (713) 223-4200
fax: (713) 568-2820
gary@millerdefense.com
ORAL ARGUMENT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 68.4 (c), Appellant requests oral argument.
Issues raised in this petition are fact specific and oral argument would allow the
parties to address any concerns or questions this Court may have. The First Court
of Appeals’ opinion conflicts with decisions from the U.S. Supreme Court.
Additionally, the issue presents an important question of law that has not yet been
addressed by this Court.
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IDENTIFICATION OF THE PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 68.4(a), a complete list of the names of all
interested parties is provided below.
Counsel for the State on appeal:
Carly Dessauer — Assistant District Attorney of Harris County
1201 Franklin St., Suite 600, Houston, Texas 77002
Devon Anderson ⎯ District Attorney of Harris County
1201 Franklin St., Suite 600, Houston, Texas 77002
Counsel for the State at the trial court:
Matt Harding ⎯ Assistant District Attorney of Harris County
1201 Franklin St., Suite 600, Houston, Texas 77002
Coby Leslie ⎯ Assistant District Attorney of Harris County
1201 Franklin St., Suite 600, Houston, Texas 77002
__________________________________________________________________
Appellant:
Alyssa Pullen
Counsel for Appellant:
Gary S. Miller
1018 Preston St., Suite 500, Houston, Texas 77002
Counsel for Defendant at trial court:
Gary S. Miller
Laine D. Lindsey
Trial Judge:
Honorable John Clinton
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TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT……………………………… 2
IDENTIFICATION OF THE PARTIES AND COUNSEL……..………………… 3
INDEX OF AUTHORITIES……………………………………………………… 5
STATEMENT OF THE CASE……………………………………………………..7
STATEMENT OF THE PROCEDURAL HISTORY………………………………7
REASONS FOR REVIEW…………………………………………………………8
GROUND FOR REVIEW………………………………………………………….8
Is it reasonable under the Fourth Amendment for an officer with superior expertise
conducting DWI investigations to detain a suspected intoxicated driver for thirty
minutes to wait for another officer with inferior DWI expertise with no video
recording equipment?……………………………………………………………….……..……. 9
PRAYER FOR RELIEF………………….……………………………………… 18
CERTIFICATE OF SERVICE……………….………………………………..… 18
CERTIFICATE OF COMPLIANCE……………………………………………. 19
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INDEX OF AUTHORITIES
CASES
Belcher v. State,
244 S.W.3d at 539 (Tex. App.—Fort Worth 2007, no pet.)………………………… 11, 12
Bullock v. State,
No. 01-11-00347-CR (Tex. App—[1st Dist.], Nov. 21, 2012)………………… 11, 12, 13
Cady v. Dombrowski,
413 U.S. 433, 437 (1973)………………………………………………….….……..… 14
Florida v. Royer,
460 U.S. 491, 500 (1983)…………………………………………………………….… 8
Hartman v. State,
144 S.W.3d 568, 572 (Tex. App.—Austin 2004)………………………….…… 11, 12, 14
Kothe v. State,
152 S.W.3d 54, 64 (Tex. Crim. App. 2004)……………………………………………. 14
Michigan v. Summers,
452 U.S. 692 (1981)……………………………………………………………………. 8
Sibron v. New York,
392 U.S. 40 (1968)…………………………………………………………………….. 17
Smith v. State,
No. 03-06-00085-CR, 2007 WL 700834 (Tex. App.—Austin
Mar. 7, 2007, pet. ref.’d)(mem. op., not designated for publication)……………… 11, 17
United States v. Brigham,
382 F.3d 500, 511 (5th Cir. 2004)………………………………………………….……14
United States v. Sharpe,
470 U.S. 675 (1985)………………………………………………………… 8, 10, 11, 14
RULES
TEX. R. APP. P. 66.3 (c)…………………………………………………………… 7
TEX. R. APP. P. 68.2 (a)…………………………………………………………… 6
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TEX. R. APP. P. 68.4(a)……………………………………………………………. 3
TEX. R. APP. P. 68.4 (c)….……….…………………………………………..…… 2
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TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
Appellant was charged by information with driving while intoxicated. (CR
3). A jury convicted Appellant of the charged offense and the trial court sentenced
her to 3 days in the Harris County Jail and a $1,500.00 fine. (CR 58).
STATEMENT OF THE PROCEDURAL HISTORY
On August 26, 2014, a unanimous panel of the First Court of Appeals issued
an unpublished opinion affirming the trial court’s denial of Appellant’s motion to
suppress. Pullen v. State, No. 01-13-00259-CR (Tex. App. — Houston [1st. Dist.]
Aug. 28, 2014, pet. filed) (not designated for publication). A motion for en banc
rehearing was filed by Appellant on October 10, 2014, which was denied on
November 20, 2014. The First Court of Appeals also issued an order on November
20, 2014, titled “corrected pages to opinion issued.” (See Appendix A). After one
extension was granted, this petition for discretionary review is timely if filed by
January 21, 2015. See TEX. R. APP. P. 68.2(a).
The First Court of Appeals held that the trial court did not err in denying
Appellant’s motion to suppress because the thirty minute detention of Appellant
was reasonable under the Fourth Amendment. Pullen, 14. The Court held that the
thirty minute delay was justified by legitimate law enforcement purposes in
furtherance of the investigation. Id. at 13. The First Court of Appeals also held that
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the duration of Appellant’s detention was also reasonable under the Fourth
Amendment. Id. at 14.
REASONS FOR REVIEW
This petition for discretionary review should be granted because the First
Court of Appeals’ decision conflicts with U.S. Supreme Court cases, namely
United States v. Sharpe, 470 U.S. 675 (1985), Florida v. Royer, 460 U.S. 491, 500,
(1983), and Michigan v. Summers, 452 U.S. 692 (1981). See TEX. R. APP. P.
66.3(c). Appellant’s warrantless detention for thirty minutes failed to effectuate
the purpose of the detention because the delay was solely to wait for an
“designated DWI Unit” with inferior expertise and no additional necessary
video equipment.
GROUNDS FOR REVIEW
The U.S. Supreme Court has strictly limited the duration of warrantless
seizures to the amount of time necessary to quickly dispel the suspicion of criminal
activity. Sharpe, 470 U.S. at 686. The U.S. Supreme Court has never found that a
citizen could be reasonably detained strictly because of personnel assignments or
“designations” of particular officers within a police department. Namely, this
Court should determine whether a thirty minute detention by an officer with
superior expertise and knowledge is reasonable under the Fourth Amendment in
order to wait for an officer with inferior knowledge and less experience but had
the personnel assignment of being an “designated DWI Unit.” This investigation
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was not conducted more efficiently or enhanced by waiting for thirty minutes for
the arrival of the “designated DWI Unit” HPD Officer Sanchez. Officer Musket
had no video recording equipment and neither did Officer Sanchez. Legitimate
law enforcement purposes have never been defined by this Court under the
reasonableness standard of the Fourth Amendment and the courts of appeals have
improperly expanded permissible legitimate law enforcement purposes.
GROUND FOR REVIEW
Is it reasonable under the Fourth Amendment for an officer with superior
expertise conducting DWI investigations to detain a suspected intoxicated
driver for thirty minutes to wait for another officer with inferior DWI
expertise with no video recording equipment?
The First Court of Appeals ignores the fact that the thirty minute delay
waiting for “designated DWI Unit” did not directly effectuate the purpose of the
detention — after the delay an officer with inferior expertise arrived with no
necessary video equipment. This Court has the opportunity to define the
permissible of legitimate law enforcement purposes during warrantless detentions
in Texas under the Fourth Amendment. The entire purpose of a warrantless
detention by one officer is to delay to allow for another officer to arrive in order to
elevate the investigation through superior knowledge, expertise or equipment —
thereby, making the delay a worthy and reasonable endeavor.
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The sole reason for the thirty minute delay of Appellant was waiting for the
“designated DWI Unit” to arrive the scene. Both Officers Muskiet and Sanchez
did not have video recording devices on their HPD patrol vehicles. Musket never
testified he felt that he was in danger or needed back-up officers for officer safety
purposes. No evidence was presented that the “designated DWI Unit” had superior
training or experience, in fact, the opposite was true. Officer Muskiet (the initial
officer) had conducted far more DWI investigations in his career than Officer
Sanchez. Muskiet testified that he was fully qualified to conduct DWI
investigations and had done so many occasions and could efficiently and
effectively investigate Appellant’s suspected intoxication. (RR III 38, 47). Nothing
prevented the fully trained and available officer from investigating Appellant
except Muskiet calling in for a “DWI Unit” - anticipating and expecting an officer
with superior knowledge and expertise (like a HPD DWI task force officer) to
arrive. HPD Officer Sanchez’s investigation at the scene was a total of eight
minutes compared to the delay of 30 minutes waiting for her arrival. She failed to
even offer the Appellant the full battery of the three standardized field sobriety
tests — contrary to her training, again, demonstrating her detriment to the
investigation.
In United States v. Sharpe, 470 U.S. 675 (1985), the U.S. Supreme Court
found that the patrol officer was justified in waiting for the DEA agent to arrive
because he knew about the investigation and had superior training, knowledge, and
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experience in handling narcotics investigation. Id. at 687. The Supreme Court’s
standard in Sharpe exemplifies the direct nature of the delay — it enhanced and
furthered the investigation in order to be conducted by an expert officer.
Appellant’s case is the reverse of the officers involved in Sharpe - the thirty minute
delay was spent waiting for an officer with inferior training, knowledge and
experience handling DWI investigations. Court of appeals in Texas have
improperly expands the U.S. Supreme Court’s definitions of legitimate law
enforcement purposes in order to find that legitimate law enforcement purposes
existed in Appellant’s case.
Courts of Appeals throughout Texas have routinely affirmed warrantless
detentions based on the reasonable detention of DWI suspects while waiting for a
DWI Task Force officer to arrive at a scene. Bullock v. State, 426 S.W.3d 226 (Tex.
App.—Houston [1st Dist.] 2012, no pet.); Hartman v. State, 144 S.W.3d 568, 573
(holding that a five to fifteen minute delay in DWI investigation so another officer
could arrive at the scene with a video camera served a legitimate law enforcement
purposes); Belcher v. State, 244 S.W.3d 531, 541 (Tex. App. Fort Worth 2007, no
pet.) (holding that the initial officer asked the suspect questions in furtherance of
the DWI investigation, such as where the suspect had been drinking, where he had
been prior to the stop and where he was going. Also the initial officer had less
experience and was less efficient at conducting DWI investigations.); Smith v.
State, No. 03-06-00085-CR, 2007 WL 700834, at 3–4, Tex. App.—Austin Mar. 7,
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2007, pet. ref.’d)(mem. op., not designated for publication)(holding an
investigative delay waiting for a rookie officer for the purpose of training was
reasonable because it further a legitimate law enforcement purpose.) [emphasis
added].
In Belcher v. State, the court held that a twenty-seven minute delay waiting
for a more experienced officer who could perform the investigation quicker was
not unreasonable in duration and served a legitimate law enforcement purpose.
Belcher v. State, 244 S.W.3d 531, 540-541 (Tex. App.—Fort Worth 2007, no pet.).
Inherently, DWI task force officers are experts in efficiently investigating,
identifying, conducting standardized field sobriety tests, documenting and
testifying about their findings in court. The delay in Belcher is directly justified
and effectuated by an improvement in the investigation as a result of it being
conducted by an officer with more DWI investigation expertise. The distinction in
Appellant’s case occurs because the delay was waiting for a non- DWI Task Force
officer — this distinction is never discussed in Appellant’s case. The delay in the
Hartman case was directly justified as legitimate law enforcement purposes by the
assistance of waiting for the second officer with a video recording equipment to
arrive at the scene. Again, neither Officer Muskiet or Sanchez had video recording
equipment, therefore, no directly related investigative tool caused the delay.
In Bullock v. State, 426 S.W.3d 226 (Tex. App.—Houston [1st Dist.] 2012,
no pet.), specifically involved a delay waiting for a DWI task force officer after the
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initial officer had the suspect perform the HGN test (a standardized field sobriety
test), he first called for a DWI task force officer and even made a second follow-up
call during the delay to check on the status of the DWI task force officer.
Appellant’s case is factually distinguishable on many levels from Bullock (besides,
there is no DWI task force officer whatsoever); including the lack of investigative
activity taken by Muskiet. Musket was fully trained and qualified to have had
Appellant perform the HGN standardized field sobriety test during the delay but he
simply waited instead. Muskiet never made a second call during the delay to
inquiry regarding the arrival time of Sanchez.
The Court of Appeals’ opinion on pages 12-13 stated the following:
“Muskiet also explained that while a designated DWI Officer is conducting her
investigation, it is the “usual practices” of patrol units to begin completing
necessary paperwork, such as completing a “tow slip” if a defendant’s automobile
must be towed from the scene.”
However, none of these actions are found in the record as actually being
performed by Muskiet. No evidence of written paperwork by Muskiet was
presented or offered into evidence by the State during trial. Muskiet never testified
that he actually completed any paperwork in Appellant’s case - including no
mention at all of completing a “tow slip.” Muskiet did not write an Offense Report
or a supplement regarding any investigative actions he undertook. No tow slip was
ever offered into evidence during the trial by the State. Absent from the record is
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any mention of whether or not Appellant’s vehicle was towed from the scene.
Therefore, the opinion relied upon non-existent legitimate law enforcement
purposes to justify the thirty minute detention of Appellant. This vague reference
fails to articulate any concrete facts in order to justify Appellant’s detention. The
distinct lack of specific details of legitimate law enforcement purposes undermines
the State’s arguments and the Opinion issued.
The lack of any diligent investigation into Appellant’s suspected intoxication
by Muskiet also rendered the duration detention unreasonable under the Fourth
Amendment. The length of a temporary investigative detention is generally
considered reasonable as long as the police are diligently engaged in a means of
investigation that is likely to permit the officers to quickly and efficiently confirm
or dispel their reasonable suspicions of criminal activity. Sharpe, 470 U.S. at 686,
Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004). The question is also
whether the law enforcement officer acted unreasonable in failing to choose a less
intrusive method. Hartman, at 574 citing Sharpe, 470 U.S. at 687, (quoting Cady v.
Dombrowski, 413 U.S. 433, 437 (1973). There is no bright line rule as to how long a
traffic stop may reasonably continue; however, courts consider “whether the police
diligently pursued a means of investigation that was likely to confirm or dispel
their suspicions quickly, during which time it was necessary to detain the
defendant.” Sharpe, 470 U.S. at 686-87, 105 S. Ct. at 1575-76; see United States v.
Brigham,382 F.3d 500, 511 (5th Cir. 2004). Musket failed to administer any
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standardized field sobriety tests, failed to ask Appellant any questions about her
activities that evening, how many alcoholic drinks she consumed, where she was
coming from, what she had to eat, etc. He did not perform any other actions in
furtherance of the investigation of Appellant’s suspected intoxicated. Muskiet had
thirty minutes which provided him an abundance of time to complete the entire
investigation of Appellant with his DWI expertise.
The thirty minute detention of Appellant (at her own apartment complex -
with her expectation of returning to her residence) was almost four times as long in
duration as Sanchez’s entire investigation which only lasted eight minutes. The
only action that Musket took was to call for “a designated DWI patrol officer” even
though it caused the thirty minute delay. Muskiet made a single request and then
waited and did not exercise any due diligence to investigate Appellant. He failed
to ask Appellant any questions about her activities that evening, how many drinks
she consumed, where she was coming from, what she had to eat, etc. He did not
perform any other actions in furtherance of the investigation of Appellant’s
suspected intoxicated. Muskiet had thirty minutes which provided him an
abundance of time to complete the entire investigation of Appellant.
Eavesdropping on Appellant’s phone conversation does not demonstrate any
diligence on Muskiet’s behalf because that was not conducted in furtherance of
investigating her suspected intoxication.
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Sanchez’s inexperience and inadequate knowledge regarding DWI
investigation were repeatedly demonstrated throughout the trial. The officer
conducted an improper HGN demonstration, she did not know the three phases of
DWI investigation and detection as taught by NTSHSA (RR III 127)., had only
been involved in maybe a total of four prior DWI investigations, she had only been
out the police academy six months prior to Appellant’s arrest, she was not a
member of the Houston Police Department DWI Task Force, there was no video
camera in her car, she needed assistance from Officer McRae, and she signed the
DIC-23 document without actually personally reading it to Appellant.
It is inherently unreasonable under the Fourth Amendment to wait for an
inexperienced officer whom is not a member of HPD DWI Task Force to arrive to
conduct an investigation when Officer Muskiet, the initial officer, is much more
qualified to continue the investigation without any delay. Muskiet is present at the
scene and fully qualified to investigate Appellant’s suspected intoxicated - nothing
prevented him from continuing. His decision to wait thirty minutes intentionally
delayed the investigation which made it more complex and slower. The HPD
policy is for patrol units to call for HPD DWI Task Force members to assist them
on scene. Being labeled as a “DWI Unit” does not mean Sanchez has any
specialized DWI knowledge or training - she was grossly mis-assigned that
evening. Muskiet failed to comply with HPD policy - the entire reason the DWI
Task Force exists is because of their superior expertise and knowledge regarding
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DWI investigations. Muskiet called for a HPD DWI Task Force member to come
to Appellant’s scene. Sanchez was not a member of the HPD DWI Task Force and
had less knowledge than Muskiet which the panel’s opinion fails to analyze or
acknowledge.
Muskiet never testified that he was purposely holding Appellant for Sanchez
to gain experience as a new officer– contrary to the initial officer in the Smith case
whom purposely waiting for a rookie officer so they could gain experience. Smith,
at 3-4 (unpub.). The record is silent as to whether Muskiet was concerned about
officer safety and was not argued by the State as a reason to justify Appellant’s
detention.
The mere existence of a police policy alone does not render a particular
search or seizure reasonable or otherwise immune from scrutiny under the Fourth
Amendment. See Sibron v. New York, 392 U.S. 40, 61, (1968) (“The question in
this Court upon review of a state-approved search or seizure is not whether the
search (or seizure) was authorized by state law. The question is rather whether the
search was reasonable under the Fourth Amendment”). A police department whom
assigns officers without any specialized knowledge or expertise in the particular
subject matter should not be allowed to detain citizens pursuant to such a policy —
in order to wait for for an inferior investigator with no necessary equipment.
Delays in an investigation must directly enhance and elevate law enforcement
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officers’ investigative efforts, if not, the Fourth Amendment protects citizens from
warrantless detentions.
PRAYER FOR RELIEF
It is respectfully requested that this Petition be granted, the First Court of
Appeals’ judgment be reversed, and the court ordered to enter findings consistent
with this Court’s opinion.
Respectfully submitted:
/S/ GARY S. MILLER
GARY S. MILLER
Attorney for Alyssa Pullen
State Bar No: 24051050
1018 Preston St., Suite 500
Houston, TX 77002
phone: (713) 223-4200
fax: (713) 568-2820
gary@millerdefense.com
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5, this certifies that on January 21, 2015, a
copy of the foregoing Petition was mailed to the following address: Assistant
District Attorney Carly Dessauer, Harris County District Attorney’s Office, 1201
Franklin Street, Houston, Texas 77002. The revised version was sent by e-mail on
February 4, 2015.
/S/ GARY S. MILLER
GARY S. MILLER
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CERTIFICATE OF COMPLIANCE
I, Gary S. Miller, hereby certify that the Appellant’s Petition for
Discretionary Review contains 3,489 words according to Apple Pages 5.1 which
was used to generate this document according to TEX. R. APP. P. 9.4 (3).
GARY S. MILLER /S/
GARY S. MILLER
Date: January 21, 2015
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