ACCEPTED
03-15-00228-CR
6910062
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/14/2015 1:40:44 PM
JEFFREY D. KYLE
CLERK
THIRD DISTRICT COURT OF APPEALS
AUSTIN FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
___________________ 9/14/2015 1:40:44 PM
JEFFREY D. KYLE
NO. 03-15-00228-CR Clerk
__________________
CLIFTON CREWS HOYT,
Appellant
versus
STATE OF TEXAS,
Appellee
_____________________________________________
On Appeal from A DWI Conviction Obtained in
the 391ST Judicial District Court, TOM GREEN County,
MARCH 17, 2015, No. D-13-0316-SB, Honorable
TOM GOSSETT, Judge Presiding
_____________________________________________
APPELLANT’S ORIGINAL BRIEF
By: /s/ John T Floyd
John Thomas Floyd III
Texas Bar No. 00790700
By: /s/ Christopher M. Choate
Christopher M. Choate
Texas Bar No. 24045655
Principal Office
The Kirby Mansion
2000 Smith Street
Houston, TX 77002
Tel: 713-224-0101
Fax: 713-237-1511
Attorneys for Appellant
IDENTITY OF PARTIES AND COUNSEL
John T. Floyd III, SBOT No. 00790700, Appellant’s trial counsel, Principal Office,
The Kirby Mansion, 2000 Smith Street, Houston, Texas 77002, Tel: 713-581-1060.
Christopher M. Choate, SBOT 24045655, Appellant’s trial counsel, Principal
Office, The Kirby Mansion, 2000 Smith Street, Houston, Texas 77002, Tel. 713-
581-1060.
Richard Villarreal, SBOT 00797602, Assistant District Attorney, Tom Green
County, 124 West Beauregard, San Angelo, Texas 76903, Tel: 325-659-6583.
Honorable Tom Gossett, Tom Green County, 112 W. Beauregard, San Angelo,
Texas. 76903, Tel: 325-659-6569.
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES .................................................................................... ii
1. STATEMENT OF THE CASE..............................................................................1
2. STATEMENT REGARDING ORAL ARGUMENT ...........................................2
3. ISSUES PRESENTED...........................................................................................2
4. STATEMENT OF THE FACTS ...........................................................................2
5. ISSUE ONE: THE TRIAL COURT ERRED ........................................................5
WHEN IT DENIED THE MOTION TO SUPPRESS ..............................................5
A. Summary ............................................................................................................5
B. Discussion .........................................................................................................6
6. ISSUE TWO: THERE WAS INSUFFICENT EVIDENCE TO SUPPORT.......11
A CONVICTION FOR DRIVING WHILE INTOXICATED ................................11
A. Summary .........................................................................................................11
B. Discussion ........................................................................................................12
PRAYER ..................................................................................................................14
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................15
TABLE OF AUTHORITIES
Cases
Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009)...................... 10, 11
Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) ......................... 13, 14
Brooks v. State, 323 S.W.3d 912, 926 (Tex. Crim. App. 2010) ..............................12
Condarco v. State, 2013 Tex. App. LEXIS 10741
(Tex. App.—Austin, Aug. 27, 2013) ....................................................................13
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ..................................14
Douds v. State, 434 S.W.3d 842 (Tex. App—Houston [14th Dist.] 2014) ..............12
Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005) .................... 6, 8, 9, 11
Garcia v. State, 827 S.W.2d 937, 934 (Tex. Crim. App. 1992) ................................7
ii
Maryland v. Pringle, 540 U.S. 366, 371,
124 S.Ct. 95, 157 L.Ed.2d 769 (2003) .................................................................11
Whren v. United States, 517 U.S. 806, 813,
116 S.Ct. 1769, 151 L.Ed.2d 89 (1996) ...............................................................11
Statutes
TEX. PENAL CODE § 49.04..........................................................................................1
TEX. TRANSP. CODE § 724.012.................................................................................12
Rules
Tex. R. App. P. 38.1...................................................................................................2
Tex. R. App. P. 9.4...................................................................................................15
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1. STATEMENT OF THE CASE
This appeal is from a DWI conviction obtained pursuant to TEX. PENAL
CODE § 49.04.
In February 2013, appellant was charged in a one count indictment with
driving while intoxicated. The count had a second enhancement paragraph.
On February 3, 2015, appellant signed a waiver of a jury trial and submitted
the waiver to the court.
On March 17, 2015, a bench trial of this matter was conducted in Tom
Green County, Texas before the Honorable Tom Gossett. All references hereinafter
to the trial record will be referred to as “TR”.
The defense filed a pretrial Motion to Suppress. Defense counsel renewed
the motion during trial. Judge Gossett permitted the defense to take the State’s sole
witness, Officer Antonio Aguilar, on voir dire concerning this motion. Following
Officer’s Aguilar testimony, Judge Gossett denied the motion. (TR, Vol. 2, p. 29-
50).
On March 17, Judge Gossett convicted appellant on Count One in the
indictment, a third degree felony, and found the enhancement paragraph true based
on appellant’s plea, making his conviction a second degree felony. Id., at 79.
Judge Gossett sentenced the appellant to fourteen (14) years in the custody
of the Texas Department of Criminal Justice. Id., at 84. The sentence was ordered
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to run concurrent to a 12-year sentence previously imposed by Judge Gossett for
another DWI conviction. Id., at 85.
Defendant timely filed a notice of appeal and the trial record was prepared
and submitted to the court. Thus, this appeal is properly before the court.
2. STATEMENT REGARDING ORAL ARGUMENT
Inasmuch as the issues presented by this appeal are based exclusively on the
trial record, undersigned counsel does not believe the decisional process would be
aided by oral argument. Tex. R. App. P. 38.1(e).
3. ISSUES PRESENTED
1. Whether the trial court erred in its denial of appellant’s motion to suppress
based on lack of probable cause to detain after initial traffic stop.
2. The legal and factual evidence was insufficient at trial that the appellant
was driving while intoxicated pursuant to TEX. PENAL CODE § 49.04.
4. STATEMENT OF THE FACTS
Testimony at trial by the State’s sole witness, San Angelo Police Department
patrol officer Antonio Aguilar, revealed the officer was patrolling a section of San
Angelo assigned to him on February 13, 2013. (TR., Vol. 2, p. 12-13). Officer
Aguilar received a “broadcast message” about a reckless driver. Id., at 14. A
description of the reckless driver’s vehicle license plate was provided in the
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message. Id. The vehicle was a motorcycle. Id. Officer Aguilar ran the license plate
and discovered it was registered to the appellant. Id., at 14-15.
Officer Aguilar testified that he was sitting at a light at Bryant and
Knickerbocker when he saw the motorcycle pass by. (TR., Vol. 2, p. 15). The
officer pulled in behind the motorcycle which he identified from the broadcast
message and recognized the appellant as its driver. Id. Officer Aguilar said he
“knew” appellant’s driver’s license was “invalid at the time.” Id. However, during
voir dire questioning, the officer admitted that he had not “confirmed” whether the
appellant’s driver’s license was invalid. Id., at 31. The officer nonetheless said he
“activated” his lights to pull appellant over once the light turned green. Id., at 15.
Officer Aguilar said it took several blocks before the appellant pulled over
his motorcycle. (TR., Vol. 2, p. 15). The officer said two additional factors caught
his attention about appellant: 1) appellant was wearing “shorts” on a cold, windy
day and 2) appellant exhibited acceleration when he pulled away from the light, a
violation of a city ordinance. Id., at 15-16. However, on voir dire examination,
Officer Aguilar testified that he did not believe the exhibition of acceleration
endangered any other motorists. Id., at 33.
Officer Aguilar testified that once he pulled the appellant over, he observed
that besides wearing shorts, appellant “was very agitated, fidgety, seemed to be
having a hard time holding still. Everything just seemed off; it was outside the
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norm.” Id., at 18. This behavior led the officer to believe he had to conduct an
“intoxication investigation.” Id. Officer Aguilar testified he was certified both in
Standard Field Sobriety Testing (SFST) and Drug Recognition Evaluation (DRE).
Id. As part of this training, the officer said he was also certified to conduct the
horizontal gaze nystagmus (HGN) component of the SFST. Id., at 20.
Officer Aguilar testified that he did not observe any nystagmus in
appellant’s eyes. (TR., Vol 2, p. 20). The officer added that an absence of
nystagmus indicates a subject has not consumed alcohol, and nystagmus would not
be present if the subject has consumed marijuana. Id., at 21. Officer Aguilar further
said he did not smell the odor of alcohol on appellant. Id. The officer then testified
that he performed the “walk-and-turn” part of the SFST on appellant. Id., at 22. Of
the eight clues for alcohol determination in the “walk-and-turn” test, Officer
Aguilar observed only three clues in appellant’s test. Id. The officer next
administered the “one-leg stand” part of the SFST, and found the appellant
indicated three out of the four clues in this particular test.” Id., at 23.
Based on the foregoing clues, Officer Aguilar made a determination that the
appellant was intoxicated. (TR., Vol. 2, p. 25). The officer arrested appellant and
searched him. Id., at 25. He removed a “baggy” from appellant’s pocket. Id., at 26.
According to Officer Aguilar, appellant volunteered the substance in the bag was
marijuana. Id. The officer testified he believed the substance was marijuana. Id.
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Officer Aguilar requested that appellant provide a breath sample, which appellant
refused to do. Id.
The State did not conduct a forensic analysis of the substance in the baggy.
If it did so, the State did not call the expert who conducted the analysis. Further,
Officer Aguilar did not perform a DRE and did not seek a warrant to obtain a
blood draw as he was permitted to do under Texas law. (TR., Vol. 2, p. 37-39).
5. ISSUE ONE: THE TRIAL COURT ERRED
WHEN IT DENIED THE MOTION TO SUPPRESS
A. Summary
Officer Aguilar did not have probable cause to stop and detain appellant. He
had a broadcast about a reckless driver on a motorcycle. He had the license plate
number of the motorcycle. Before he ever encountered the motorcyclist, the officer
ran the license plate of the motorcycle and determined it was registered to
appellant. At that point, he made an unverified assumption that appellant was
driving the motorcycle without a valid license, based on appellant’s previous
license suspensions. Once he spotted appellant on the motorcycle, Officer Aguilar
activated his lights and pulled the appellant over. The stop, thus, had nothing to do
with reckless driving.
The officer did not observe any of the classic signs of alcohol intoxication:
odor of alcohol, bloodshot eyes, slurred speech, or unsteadiness. As for drug
intoxication, Officer Aguilar observed appellant wearing shorts on a mild winter
5
day; observed that appellant appeared to be agitated and fidgety; and observed that
everything just seemed to be "out of the norm.” The officer did not detect the odor
marijuana on appellant. Yet he impermissibly presumed that appellant was
intoxicated because of appellant’s prior use of marijuana.
The foregoing factors did not give Officer Aguilar sufficient probable cause
to detain appellant for the purpose of conducting a SFST.
B. Discussion
This case is about the evidentiary value of a police officer’s “hunch” when it
comes to determining probable cause. The trial record of this case is void of any
specific, articulable facts upon which the court can make a proper assessment of
whether the Officer Aguilar’s hunch was objectively reasonable. Ford v. State, 158
S.W.3d 488, 493 (Tex. Crim. App. 2005).
Based on the dispatcher’s notification, Officer Aguilar had probable cause to
be on the lookout for a reckless motorcyclist. He testified that once he identified
the motorcycle and its operator as the appellant, he decided to pull the appellant
over for driving without a valid license. He had not observed appellant driving in a
reckless manner, nor had the officer run a license check to determine if the
appellant’s driver’s license had actually been suspended.
While Officer Aguilar said he observed appellant exhibit excessive
acceleration when pulling away from a traffic light, that observation was made
6
after he initiated a traffic stop by activating his lights and pulling appellant over for
a suspected invalid license. Moreover, the officer admitted that the acceleration
was not “reckless” nor did it endanger any other motorists.
More to the point, the State did not elicit one word of testimony from Officer
Aguilar about whether he even asked for appellant’s driver’s license once the stop
was made, much less run a check to determine if the license was valid. Thus, it is
objectively reasonable to determine that the officer’s decision to initiate the traffic
stop for an invalid license was merely a pretext to conduct what he described as an
“intoxication investigation.” (TR., Vol. 2, p. 18). This pretext was based on Officer
Aguilar’s prior encounters with appellant dealing with DWI issues, as evidenced
by the fact that the officer, prior to initiating the invalid license stop, reached out to
a fellow officer to say appellant was on the road again. Id., at 30-31.
The law in Texas is well-settled that if an officer suspects a person has
committed a traffic violation, he may legally initiate a traffic stop. Garcia v. State,
827 S.W.2d 937, 934 (Tex. Crim. App. 1992). An officer’s decision to initiate a
traffic stop for an invalid license would therefore be reasonable, so long as the
officer had specific, articulable facts—rather than assumptions—to support the
belief that a traffic violation had occurred. The officer’s decision would further be
bolstered if he sought the driver’s license information and conducted a check of the
license’s validity.
7
In the instant case, however, Officer Aguilar did not ask appellant for his
driver’s license and he did not verify whether the appellant’s license was valid.
Officer Aguilar’s actions therefore sufficiently demonstrated that the presumed
invalid license was a pretext to detain appellant so the officer could conduct an
intoxication investigation—an investigation for which he did not have probable
cause to conduct.
The Court of Criminal Appeals in Ford observed:
“An officer conducts a lawful temporary detention when
he has reasonable suspicion to believe that an individual
is violating the law. Reasonable suspicion if the officer
has specific, articulable facts that, when combined with
rational inferences from those facts, would leave him to
reasonably conclude that a particular person actually is,
has been, or soon will be engaged in criminal activity.
This is an objective standard that disregards any
subjective intent of the officer making the stop and looks
solely to whether an objective basis for the stop exists. A
reasonable suspicion determination is made by
considering the totality of the circumstances.” Id., at 492-
93.
As for Officer Aguilar’s assertion that appellant’s acceleration from the light
provided additional probable cause to initiate the stop, the Ford court had this to
say:
The court of appeals stated that “Trooper Peavy testified
that he saw [Ford] following another car at a distance that
Peavy believed was insufficient and, thus, in violation of
the statute.” While this may be a permissible
interpretation of Peavy's “following too close” testimony,
it does not change its conclusive character into specific,
8
articulable facts. And attempting to do so requires a
strained reading of the record. As indicated from Peavy's
testimony, Peavy only stated that Ford was “following
too close.” The record reveals an absence of any facts
allowing an appellate court to determine the
circumstances upon which Peavy could reasonably
conclude that Ford actually was, had been, or soon would
have been engaged in criminal activity. Instead, the trial
court was presented only with a conclusory statement
that Ford was violating a traffic law. We do not quarrel
with the notion that Peavy may have in fact believed that
Ford was following another car too closely. Nor do we
dispute that the trial judge is free to believe or disbelieve
Peavy's testimony. But without specific, articulable facts,
a court has no means in assessing whether this opinion
was objectively reasonable.
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.” And “when sucha stop is
not based on objective criteria, the risk of arbitrary and
abusive police practices exceeds tolerable limits.”
Allowing a police officer's opinion to suffice in specific
facts' stead eviscerates Terry's reasonable suspicion
protection. If this Court were to hold as the dissent
suggests, we would be removing the “reasonable” from
reasonable suspicion. Therefore, we adhere to the
principle that specific, articulable facts are required to
provide a basis for finding reasonable suspicion. Mere
opinions are ineffective substitutes for specific,
articulable facts in a reasonable-suspicion analysis.” Id.,
at 493 (emphasis added).
Thus, Officer Aguilar’s assertion that appellant violated a city ordinance
when he accelerated from the traffic light is nothing more than a mere opinion not
supported by “specific, articulable facts in a reasonable-suspicion analysis.” The
9
officer’s own testimony and the video introduced into evidence by the State did not
support the alleged acceleration.
Additionally, there were no other factors which could have provided Officer
Aguilar with the “reasonable suspicion” upon which he could rely to detain
appellant for an intoxication investigation. Wearing shorts in a mild winter day
while riding a motorcycle does not satisfy the “reasonable-suspicion analysis” to
justify appellant’s detention for the intoxication investigation. Moreover, the
officer’s observation that appellant was agitated and fidgety came after he had
decided to initiate that investigation. Wearing shorts on a mild winter day,
combined with a subject’s agitation and fidgetiness, without more, are not
“specific, articulable facts” upon which to launch an intoxication investigation and
make a warrantless arrest.
Under the Fourth Amendment, a warrantless arrest for an offense committed
in the officer’s presence is reasonable if the officer has probable cause. Amador v.
State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). In the context of a warrantless
arrest, probable cause exists “if, at the moment the arrest is made, the facts and
circumstances within the arresting officer’s knowledge and of which he has
reasonably trustworthy information are sufficient to warrant a prudent man in
believing that the person arrested committed or was committing an offense.” Id., at
878.
10
Officer Aguilar did not have any “reasonably trustworthy information” that
appellant was operating the motorcycle without a valid license; that he had violated
a city traffic ordinance when he accelerated from the light; or that he was
intoxicated on any substance. The test for probable cause “is an objective one,
unrelated to the subjective beliefs of the arresting officer, and it requires a
consideration of the totality of the circumstances facing the arresting officer.”
Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 95, 157 L.Ed.2d 769 (2003).
Thus, the shorts, agitation, and fidgetiness are subjective opinions of Officer
Aguilar that cannot be considered by this court. Whren v. United States, 517 U.S.
806, 813, 116 S.Ct. 1769, 151 L.Ed.2d 89 (1996). The court can only consider
whether Officer Aguilar had specific, articulable facts to warrant the initial traffic
stop that led to the detention, warrantless arrest, and subsequent search of
appellant. Ford, 158 S.W.3d at 493; Amador, 275 S.W.3d at 878.
As demonstrated conclusively herein, Officer Aguilar did not have such
specific, articulable facts to warrant the initial traffic stop, and it was therefore
error for the trial court to deny the motion to suppress.
6. ISSUE TWO: THERE WAS INSUFFICENT EVIDENCE TO SUPPORT
A CONVICTION FOR DRIVING WHILE INTOXICATED
A. Summary
The evidence presented by the State at the bench trial was both legally and
factually insufficient. The only evidence of guilt presented by the State was
11
through the testimony of Officer Aguilar. Thus, if the officer’s mere opinions
about appellant’s drug intoxication lacked “specific, articulable facts,” then the
evidence was legally insufficient to sustain appellant’s conviction.
There was no physical evidence of either alcohol or drug intoxication. There
was no breath sample, blood draw, or forensic analysis of the suspected marijuana.
Thus, the evidence was factually insufficient to sustain appellant’s conviction.
B. Discussion
Both legal and factual claims of insufficiency of evidence involve the same
standard of review. Brooks v. State, 323 S.W.3d 912, 926 (Tex. Crim. App. 2010).
The State’s evidence of guilt consisted solely of Officer Aguilar’s “opinions,” not
any specific, articulable facts.
Standard traffic stops in Texas that lead to DWI suspicion and/or
determinations allows detaining officers to run a criminal background check to
determine if the suspected DWI driver has prior DWI convictions. TEX. TRANSP.
CODE § 724.012(b)(3)(B). If the criminal background check reveals two or more
DWI convictions, the law today is that a breath or blood sample is obtainable after
securing a search warrant. Douds v. State, 434 S.W.3d 842 (Tex. App—Houston
[14th Dist.] 2014).
First, the State did not offer any evidence as to whether Officer Aguilar
conducted a TEX. TRANSP. CODE § 724.012(b)(3)(B) background check; and,
12
second, the State did not offer any evidence as to why the officer did not seek a
mandatory blood draw.
Furthermore, Appellant’s performance of the SFST tests are irrelevant
inasmuch as Officer Aguilar stated he did not believe appellant was intoxicated by
alcohol. The officer believed appellant’s purported intoxication was caused by
marijuana yet he did not perform the DRE. Instead, he made this intoxication
determination based solely on the fact that appellant wore shorts on a mild winter
day while driving a motorcycle and that he exhibited agitation and fidgetiness
during the investigation period.
This Court has followed the lead of the Texas Court of Criminal Appeals
that, in general, an officer’s testimony that a person was intoxicated provides
sufficient evidence to establish the intoxication element of the offense of DWI.
Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Condarco v. State,
2013 Tex. App. LEXIS 10741 (Tex. App.—Austin, Aug. 27, 2013). However, the
testifying officer must present some evidence of intoxication: lacking normal use
of mental or physical faculties; and/or signs of impairment such as slurred speech,
bloodshot eyes, odor of alcohol/drugs, unsteady balance, or staggering gait.
Condarco, at * 17. Officer Aguilar did not present any such evidence, except for
the unsteadiness appellant exhibited during the “one-leg stand” test.
13
It should be noted by the Court that the officer’s testimony in Annis was
corroborated by a positive breath test. There was no breath test or blood draw
evidence in appellant’s case. The only evidence indicating alcohol intoxication was
appellant’s poor performance on the “one-leg stand” component of the SFST, but
this showing had nothing to do with Officer Aguilar’s opinion that appellant was
intoxicated by marijuana.
Thus, given the “totality of the circumstances” involved in this case, it
cannot be said that the judgment of guilt rendered by the trial court was a rational
decision. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
PRAYER
Wherefore, premises considered, appellant respectfully requests this Court to
vacate appellant’s conviction and enter a judgment of acquittal or remand the case
back to the trial court with instruction that a new trial be conducted. Additionally,
appellant prays for such other and further relief to which he may be justly entitled
at law or in equity.
This 14th day of September, 2015.
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Respectfully submitted,
By: /s/ John T Floyd
John Thomas Floyd III
Texas Bar No. 00790700
By: /s/ Christopher M. Choate
Christopher M. Choate
Texas Bar No. 24045655
Principal Office
The Kirby Mansion
2000 Smith Street
Houston, TX 77002
Tel: 713-224-0101
Fax: 713-237-1511
Attorneys for Appellant
CERTIFICATE OF SERVICE
I hereby certify that a copy of this appellate brief has been served upon
Richard Villarreal, SBOT 00797602, Assistant District Attorney, Tom Green
County, 124 West Beauregard, San Angelo, Texas 76903 on this 14th day of
September, 2015 by placing same in the United States Postal System, by facsimile
transmission to 325-658-6831, or by any other valid method of service.
/s/ John T Floyd
/s/ Christopher M. Choate
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i), this Appellant’s Brief comprises 3,845 words,
as calculated by Microsoft Word for Windows 2010.
/s/ John T. Floyd
/s/ Christopher M. Choate
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