PD-0681-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/26/2015 11:16:40 AM
Accepted 10/26/2015 11:20:13 AM
October 26, 2015 ABEL ACOSTA
NO. PD-0681-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
DAVID LEE CLEMENT, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
********
Appealed from Cause Number CR16160
271st Judicial District Court
Wise County, Texas
Honorable John H. Fostel, Presiding
********
APPELLANT’S RESPONSE TO THE STATE
PROSECUTING ATTORNEY’S
BRIEF ON THE MERITS
********
LAW OFFICE OF JIM SHAW
916 W. Belknap Street
Fort Worth, Texas 76l02
(817) 877-0401 FAX (817) 877-0404
State Bar No. 24076583
Attorneys for Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS ……………………………………….............. 2
INDEX OF AUTHORITIES …………………………………………….. 3
BRIEF BEGIN ………………..…………………………………………… 5
STATEMENT REGARDING ORAL ARGUMENT …………………… 5
FACTUAL SUMMARY OF THE EVIDENCE ………………………… 6
RESPONSE TO ISSUE ONE …………………………………………… 9
RESPONSE TO ISSUE TWO …………………………………………… 14
CONCLUSION AND PRAYER ………………………………………… 18
CERTIFICATE OF SERVICE ………………………………………….. 19
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ……………… 20
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INDEX OF AUTHORITIES
(Cases)
Amador v. State,
221 S.W.3d 666 (Tex. Crim. App. 2007)………………………………… 15
Clement v. State,
461 S.W.3d 274 (Tex. App.—Eastland 2015) ……….…………………. 9
Clement v. State,
No. 11-13-00055-CR (Tex. App.—Eastland 2015) (op. on reh’g) …… 9
Everitt v. State,
407 S.W.3d 259 (Tex. Crim. App. 2013) …………............……………. 9
Lankston v. State,
827 S.W.2d 907 (Tex. Crim. App. 1992) …………………………….…. 13
Layton v. State,
280 S.W.3d 235 (Tex. Crim. App. 2009) …………………………….…. 9
Owens v. State,
861 S.W.2d 416 (Tex. App.—Dallas 1993, no pet.) ……………..……. 16
Postell v. State,
693 S.W.3d 462 (Tex. Crim. App. 1985)………………………………… 12
Saathoff v. State,
908 S.W.2d 523 (Tex. App.—San Antonio, 1995 no pet.)..…………… 12
Sells v. State,
121 S.W.3d 748 (Tex. Crim. App. 2003)………………………………… 12
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(Articles, Codes, and Constitutions)
Texas Code of Criminal Procedure Art. 28.01 § 1(6) …….…………… 11
Texas Code of Criminal Procedure Art. 28.01 § 2 ……….…………… 12
Texas Rule of Appellate Procedure 33.1(a)(1)(A) ……………………… 9
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IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
DAVID LEE CLEMENT, JR §
§
V § NO. PD-0681-15
§
THE STATE OF TEXAS §
Appealed from Cause Number CR16160
Honorable John H. Fostel, Presiding Judge
271st Judicial District Court
Wise County, Texas
APPELLANT’S RESPONSE TO THE STATE
PROSECUTING ATTORNEY’S BRIEF ON THE MERITS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW, David Lee Clement, Jr., and respectfully submits
this Response to the State Prosecuting Attorney’s Brief on the Merits.
STATEMENT REGARDING ORAL ARGUMENT
The Court did not grant oral argument.
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FACTUAL SUMMARY OF THE EVIDENCE
On January 30, 2011, Jeff Johnson, a trooper with the Texas
Department of Public Safety, was on duty near a four-way intersection
in Bridgeport, Texas, when he overheard a call on his radio referencing
“a possible intoxicated driver” leaving the Exxon store located at the
northwest corner of the intersection of 101 and 380. [II R.R. at 11-13].
Trooper Johnson later testified that the complaint stated that there was
a possible intoxicated person in the store; it was not described as an
intoxicated driver. [II R.R. at 16]. At the time Trooper Johnson heard
this call, he was “just east” of the intersection; he then proceeded to the
intersection and made a right-hand turn onto 101, going across the
street to avoid the intersection. [II R.R. at 12-13]. While making this
turn, Trooper Johnson noticed a white Pontiac and a Bridgeport Police
vehicle in the parking lot of the Exxon. [II R.R. at 13]. As Trooper
Johnson was turning around, he noticed the Pontiac’s brake lights come
on, the Pontiac start backing up, and ultimately go northbound on 101.
[II R.R. at 13-14]. Trooper Johnson “noticed the vehicle accelerated
quickly” so he “checked the vehicle on the radar.” [II R.R. at 14]. The
radar showed that the vehicle was travelling at a speed of 62 miles per
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hour. [II R.R. at 14]. The posted speed limit in that area is 55 miles per
hour. [II R.R. at 14]. Trooper Johnson did not observe anyone get into
the white Pontiac. [II R.R. at 20]. Trooper Johnson did not go into the
Exxon to check on the possible intoxicated person; rather, he followed
the white Pontiac. [II R.R. at 17]. Trooper Johnson testified that he did
not enter the store because it is in the Bridgeport city limits; as such, he
would have been back-up to the Bridgeport police. [II R.R. at 17].
Based on the speed at which the Pontiac was travelling, Trooper
Johnson initiated a traffic stop. [II R.R. at 18]. The traffic stop occurred
outside the Bridgeport city limits and in an area where the posted speed
limit is 65 miles per hour. [II R.R. at 18]. Trooper Johnson testified that
the city limits is “several hundred feet” from the Exxon and Trooper
Johnson activated his lights when he and the Pontiac were “several
hundred feet” outside the city limits. [II R.R. at 18]. Trooper Johnson
testified that he did not observe the Pontiac commit any traffic
violations, other than travelling at 62 miles per hour in a 55 miles-per-
hour zone, and the Pontiac did not weave within its lane. [II R.R. at 23].
When the Pontiac pulled over, Trooper Johnson indicated that the
vehicle “almost struck the guardrail;” however, he testified that “there
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is barely enough room for a vehicle” between the white shoulder line on
the road and the guardrail and the vehicle did not hit the guardrail. [II
R.R. at 23]. Trooper Johnson agreed that the ability to position the
Pontiac entirely within the shoulder, not on the white line and not
hitting the guardrail, was “pretty keen driving.” [ II R.R. at 23-25].
Trooper Johnson approached the driver of the Pontiac, informed him
that he was stopped for speeding, and then began investigating whether
the driver was intoxicated. [II R.R. at 25-26]. During this detention, the
driver of the Pontiac was identified as David Lee Clement, Jr.
(Appellant herein). [II R.R. at 56]. As a result of this investigation,
Appellant refused to perform any field sobriety tests. [II R.R. at 26].
Based solely upon the odor of alcohol on Appellant’s breath, Trooper
Johnson arrested Appellant for the offense of driving while intoxicated.
[II R.R. at 26]. After hearing arguments the trial court denied
Appellant’s Motion to Suppress. [II R.R. at 31].
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APPELLANT’S RESPONSE TO THE STATE
PROSECUTING ATTORNEY’S FIRST ISSUE
PRESENTED
In its first point, the State argues that Appellant failed to
preserve his challenge to the probable cause for his arrest. [State’s Br.
at 2]. However, the Eastland court of appeals correctly noted, twice,
that Appellant preserved this challenge. Clement v. State, 461 S.W.3d
274, 281 n.5 (Tex. App.—Eastland 2015); Clement v. State, No. 11-13-
00055-CR, at *4-9 (Tex. App.—Eastland 2015) (op. on reh’g).
Specifically, the State and the trial court were put on notice about this
challenge during the hearing on the motion to suppress. A timely,
specific objection is required to preserve an issue for appellate review.
Tex. R. App. P. 33.1(a)(1)(A). The objection must be specific enough to
make the trial judge aware of the complaint. Everitt v. State, 407
S.W.3d 259, 263 (Tex. Crim. App. 2013). This Court has rejected hyper-
technical requirements for preservation. Id. Rather, “all a party has to
do…is to let the trial judge know what he wants, why he thinks he is
entitled to it, and to do so clearly enough for the judge to understand
him at a time when the trial court is in a proper position to do
something about it.” Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim.
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App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.
App. 1992).
Here, Appellant satisfied the three requirements to preserve his
complaint. While the testimony began by covering Appellant’s initial
detention, the testimony continued beyond the initial traffic stop and
carried through into Appellant’s arrest. [II R.R. at 25-27]. Appellant’s
counsel questioned the officer about field sobriety tests, the odor of
alcohol on Appellant’s breath, and the “DWI routine.” [II R.R. at 25-26].
Specifically, the following exchange occurred between Appellant’s
counsel and Trooper Johnson:
Q: So, you arrested him, based upon the odor of alcohol on
his breath?
A: Yes, sir.
Q: You didn’t arrest him for speeding, did you?
A: No, sir.
Q: You can’t do that, can you?
A: Sir?
Q: Can you arrest somebody for speeding?
A: No, sir.
[II R.R. at 26-27].
Appellant’s counsel then finished his cross-examination and the
State was provided an opportunity to question the officer. [II R.R. at
27]. The State declined to do so. [II R.R. at 27]. Additionally, Appellant’s
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counsel re-called the officer and asked him questions regarding the
occurrences following Appellant’s arrest. [II R.R. at 28]. Again, the
State declined to ask the officer further questions. [II R.R. at 28]. This
line of questioning is clear and it is evident from the record that
Appellant sought to suppress his arrest as an alternative challenge to
the initial detention. Appellant’s counsel asked questions directly
related to the probable-cause factors and to the investigation following
Appellant’s arrest. Last, in closing argument, Appellant’s counsel
specifically argued that Appellant’s arrest was not supported by
probable cause. Therefore, Appellant’s objection satisfied the specificity
requirement.
Next, the State Prosecuting Attorney argues that Appellant’s
challenge to his arrest was untimely. [State’s Br. at 10]. For a complaint
to be preserved, the complaining party must make a timely request,
objection, or motion that specifically states the grounds for the ruling,
unless the specific grounds are apparent from the context. Tex. R. App.
P. 33.1(a)(1)(A). A trial court may set a criminal case for a pre-trial
hearing on a defendant’s motion to suppress evidence. Tex. Code Crim.
Proc. art. 28.01 § 1(6). Article 28.01, Section 2 provides that:
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“When a criminal case is set for such pre-trial hearing, any
such preliminary matters not raised or filed seven days
before the hearing will not thereafter be allowed to be raised
or filed, except by permission of the court for good cause
shown; provided that the defendant shall have sufficient
notice of such hearing to allow him not less than 10 days in
which to raise or file such preliminary matters.”
Tex. Code Crim. Proc. art. 28.01 § 2. This provision, however, is not a
mandatory notice provision of 10 days for every pre-trial hearing.
Postell v. State, 693 S.W.2d 462, 465 (Tex. Crim. App. 1985). In other
words, the statute is read to mean that if the defendant has at least
seventeen days’ notice of the pre-trial hearing, then he must file pre-
trial motions at least seven days before that hearing. Sells v. State, 121
S.W.3d 748, 763 (Tex. Crim. App. 2003) (en banc). Furthermore, Article
28.01 is not a mandatory provision; it is merely directed to the trial
court’s discretion. Saathoff v. State, 908 S.W.2d 523, 525 (Tex. App.—
San Antonio 1995, no pet.) (citing Cantu v. State, 546 S.W.2d 621, 621
(Tex. Crim. App. 1977)).
Here, there is no evidence that the trial court used its discretion to
order the pre-trial hearings. There is nothing in the record indicating
that the judge ordered such a pre-trial hearing. Indeed, the record
shows that the trial court, in its discretion, held the pre-trial hearings
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on the day of trial rather than before and the State did not object to
this. [I C.R. at 35]. Moreover, the record indicates that the hearing on
Appellant’s motion to suppress was set, and heard, on the same day the
written motion was filed. [I C.R. at 35]; [II R.R. at 10]. Neither side
objected to the trial court doing so. Therefore, Article 28.01 § 2 is
inapplicable here, and the court of appeals properly rejected the State’s
reliance on this statute. Clement, No. 11-13-00055-CR, at *7.
Appellant’s objection was made during the pre-trial hearing on the
motion to suppress; thus, it was made “at a time when the trial court is
in a proper position to do something about it.” See, Lankston v. State,
827 S.W.3d 907, 909 (Tex. Crim. App. 1992).
Additionally, Appellant’s challenge to the probable cause for his
arrest was timely and apparent from the context of his cross-
examination, his re-calling of the officer, and his closing argument.
While Appellant’s written motion focused on the validity of the stop, the
scope of the hearing evolved into the validity of the arrest and
ultimately concluded with testimony concerning Appellant’s arrest and
the events that followed. [II R.R. at 25-28]. The State did not object to
this line of questioning and testimony at the hearing. Again, Appellant’s
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counsel specifically asked Trooper Johnson, “So, you arrested him,
based upon the odor of alcohol on his breath?” [II R.R. at 26]. The State
did not ask Trooper Johnson any questions after Appellant’s counsel’s
cross-examination. [II R.R. at 27]. After the State rested on the motion
to suppress, Appellant’s counsel re-called Trooper Johnson and
questioned him about the mandatory blood draw and interviewing
Appellant. [II R.R. at 27-28]. Again, the State did not take the
opportunity to further question Trooper Johnson. [II R.R. at 28]. The
State was provided two opportunities to question the officer about what,
if any, factors went into his decision to arrest Appellant. [II R.R. at 27,
28]. In both instances, the State chose not to do so. [II R.R. at 27, 28].
The State was not deprived of the opportunity to present evidence to
support Appellant’s arrest. Conversely, the State was given ample
opportunity to question the arresting officer. As stated above,
Appellant’s counsel re-called the officer and questioned him about
events that occurred following Appellant’s arrest. [II R.R. at 27-28]. The
State was given the opportunity to cross-examine the officer. [II R.R. at
28]. The State, however, had “no further questions” for Trooper
Johnson. [II R.R. at 28]. The burden was on the State to prove that
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Appellant was legally arrested and the State simply failed to act by not
questioning the arresting officer concerning Appellant’s arrest.
For the above reasons, this Court should hold that Appellant
properly preserved this issue for appeal and further hold that the court
of appeals did not err by so concluding.
APPELLANT’S RESPONSE TO THE STATE
PROSECUTING ATTORNEY’S SECOND ISSUE
PRESENTED
In its second point, the State argues that objective facts
established probable cause for Appellant’s arrest and that the court of
appeals applied a subjective standard of review. [State’s Br. at 13-14].
However, the court of appeals properly applied the correct standard of
review. Clement, 461 S.W.3d at 281-82. The test for probable cause is an
objective one, unrelated to the arresting officer’s beliefs, and requires
consideration of the totality of the circumstances. Amador v. State, 275
S.W.3d 872, 878 (Tex. Crim. App. 2009). The court of appeals explicitly
declined to speculate on what Trooper Johnson’s beliefs were or other
possible justifications for arresting Appellant. Clement, 461 S.W.3d at
282. Instead, the court properly focused on the objective reason
espoused by Trooper Johnson on the record. Id. Again, Trooper Johnson
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testified that he arrested Appellant based on the odor of alcohol on his
breath. [II R.R. at 26]. Trooper Johnson could not have arrested
Appellant for the speeding violation. [II R.R. at 27], see also Owens v.
State, 861 S.W.2d 419, 420 (Tex. App.—Dallas 1993, no pet.).
Contrary to the State Prosecuting Attorney’s “dispositive facts,”
Trooper Johnson’s testimony revealed only the single basis for
Appellant’s arrest. Trooper Johnson testified that the anonymous phone
call reported an intoxicated person in the Exxon store. [II R.R. at 16].
The anonymous caller did not report that “Appellant was drunk and
would soon be getting on the road in a white Pontiac…” as the State
Prosecuting Attorney asserts. (State’s Br. at 15). The call did not
mention that Appellant was leaving the store, or getting into a white
Pontiac. [II R.R. at 16-17]. Trooper Johnson did not observe anyone get
into the white Pontiac. [II R.R. at 20]. Trooper Johnson stopped the
white Pontiac “for speed.” [II R.R. at 25]. Trooper Johnson smelled
alcohol on Appellant’s breath. [II R.R. at 26]. Appellant did not do any
field sobriety tests and was arrested based upon the odor of alcohol on
his breath. [II R.R. at 26]. Appellant told Trooper Johnson what he had
to drink. [II R.R. at 28]. Trooper Johnson testified that, in pulling over,
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Appellant stayed preferably within the shoulder of the road. [II R.R. at
24-25]. Appellant did not violate any other traffic laws, nor was he
weaving within his lane. [II R.R. at 23]. Trooper Johnson’s report
indicated that Appellant “almost struck a guardrail;” however that is
“because the white shoulder line of the guardrail, there’s barely enough
room for a vehicle being there.” [II R.R. at 23].
Based on the evidence adduced at the hearing, the court of appeals
correctly held that the trial court erred by denying Appellant’s motion
to suppress. The anonymous caller was not a factor in Trooper
Johnson’s decision to detain Appellant. Appellant was speeding.
Appellant was not weaving within his lane or violating any other traffic
laws. Appellant’s “keen driving” allowed him to stop his vehicle on the
shoulder of a road where “there’s barely enough room for a vehicle…” [II
R.R. at 23-24]. Appellant’s breath smelled of alcohol. [II R.R. at 26].
Because of that odor of alcohol, Trooper Johnson arrested Appellant. [II
R.R. at 26]. Considering the totality of the circumstances, Appellant’s
arrest was not supported by probable cause. Based on the record, and
the facts developed at the hearing, the evidence was insufficient to show
that Trooper Johnson had probable cause to arrest Appellant.
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For the above reasons, this Court should find that the court of
appeals applied the correct standard of review, affirm the court of
appeals’ decision, and hold that Appellant’s arrest was not supported by
probable cause.
CONCLUSION AND PRAYER
Appellant prays that the Court of Criminal Appeals affirm the
decision of the court of appeals reversing the trial court’s denial of
Appellant’s Motion to Suppress.
Respectfully submitted,
/s/ Ray Napolitan
RAY NAPOLITAN, Attorney at Law
State Bar Number 24076583
THE LAW OFFICE OF JIM SHAW
916 W. Belknap Street
Fort Worth, Texas 76102
817-877-0401 Fax 817-877-0404
Attorneys for Appellant
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Brief for
Appellant was delivered electronically to the office of the Wise County
District Attorney and to the office of the State Prosecuting Attorney on
this 26th day of October, 2015.
/s/ Ray Napolitan
RAY NAPOLITAN
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CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), this is to
certify that this brief complies with the volume limitation of Texas Rule
of Appellate Procedure 9.4(i)(2)(B) and the typeface requirements of
Texas Rule of Appellate Procedure 9.4(e). This brief has been prepared
in a conventional typeface, using Microsoft Word, in 14-point New
Century Schoolbook. This brief is computer-generated and does not
exceed 15,000 words. Using the word-count feature of Microsoft Word,
the undersigned certifies that this brief contains 2605 words. The word
count in this Certificate of Compliance excludes the parts of the brief
exempted by Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Ray Napolitan
RAY NAPOLITAN
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