-
PD-0664-15
June 1, 2015
NO.PD - -- - -
IN THE
COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
STEPHANIE ANN SCHENK,
APPELLANT
vs.
THE STATE OF TEXAS
APPELLEE
ON APPEAL IN CAUSE No. 05-14-00207-CR
FROM THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS
APPELLANT' S MOTION FOR DISCRETIONARY REVIEW
JERRY D. KELLY
STATE BAR NO. 11221500
4131 N. Central EXPWY Suite 110
DALLAS, TEXAS 75204
214-522-7700 PHONE
214-522-7704 FAX
ATTORNEY FOR APPEALLANT
TABLE OF CONTENTS
TABLE OF CONTENTS ... ... ...... ... ........ . .......... . ........ ..................... ... ...... 2,3
LIST OF AUTHORITIES .................................................................... ....4
STATEMENT REGARING ORAL ARGUMENT .... ......... ............. . .. .............. 5
STATEMENT OF THE CASE .......................... . ................................ . ...... 5
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... . S
GROUNDS FOR REVIEW .................... . ................ ... ... ........ ............ .... .. 6
GROUND 1
THE APPELLATE COURT ERRED WHEN IT DENIED APPELLANT'S
MOTION FOR REHEARING BECAUSE THE APPELLANT COURT USED THE
INCORRECT LEGAL STANDARD FOR DETERMINING IF MIRANDA SHOULD
APPLY TO THE QUESTIONING OF APPELLANT. PURSUANT TO RULE 66.3(C)
THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF
STATE OR FEDERAL LAW IN AWA Y THAT CONFLICTS WITH THE
APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE
SUPREME COURT OF THE UNITED STATES.
GROUND2
THE APPELLATE COURT ERRED WHEN IT SAID APPELLANT WAIVED
THE ISSUE THAT AN INVESTIGATIVE DETlTION MUST BE TEMPORY AND
LAST NO LONGER THAN NECESSARY TO EFFECTUATE THE PURPOSE OF
THE STOP BECAUSE CONSTITUTIONAL ERROR DOES NOT NEED TO BE
RAISED AT THE TRIAL COURT LEVEL. PURSUANT TO RULE 66.3(C) THE
COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR
FEDERAL LAW IN AW AY THAT CONFLICTS WITH THE APPLICABLE
DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME
COURT OF THE UNITED STATES. A NEW SUPREME COURT CASE THAT
APPLIES TO THIS CASE CAME DOWN ON APRJL 21, 2015.
GROUND3
THE APPELLATE COURT ERRED WHEN IT SAID THAT THE OFFICER
DID NOT NEED APPELLANT'S CONSENT TO SEARCH HER PURSE. PURSUANT
TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT
QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH
THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR
THE SUPREME COURT OF THE UNITED STATES.
2
GROUND4
THE APPELLATE COURT ERRED WHEN IT SAID STATE V CULLEN, 195
S.W.3d 696, 699 (Tex. Crim. App. 2006) DID NOT APPLY TO THIS CASE BECAUSE
THE TRIAL COURT DID NOT FOLLOW CULLEN BECAUSE IT'S FINDINGS OF
FACT AND CONCLUSIONS OF LAW ARE NOT BASED IN THE RECORD.
PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN
IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT
CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF
CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.
REASON FOR REVIEW ............... ... .......... ............... .. ............................ 6
GROUNDS FOR REVIEW 1, RESTATED ..... ........ . ........... .......... .. .... ..... . ......7
ARGU1v!ENTS AND AUTHORITIES .............. ... ....... ... ...... .. ................... . ...7
GROUNDS FOR REVIEW 2, RESTATED ....... . ......... .. ................... .. ........... 10
ARGUMENTS AND AUTHORITIES .......... ... .......... ................................... 10
GROUNDS FOR REVIEW 3, RESTATED ........ . ................... . .. ... ..... .... . ...... 13
ARGUMENTS AND AUTHORITIES .......... .. .... . ... . ..................................... 13
GROUNDS FOR REVIEW 4, RESTATED .................. .. .............................. 14
ARGUMENTS AND AUTHORITIES .......... ...... ... .. .... ... .. .. ........ ............ ... . .. 14
PRAYER FOR RELIEF .................. .......... .. . .... . .... .. ................ ............ .. ... 15
CERTIFICATE OF SERVICE ........... .................... .... ... ............ ........ ....... ... 15
APPENDIX - MEMORANDUM OPINION AND ORDER OF COURT OF APPEALS
ENTERED MARCH 16, 2015 ... .... ........................ ........... . .. .... .16
- ORDER OF COURT OF APPEALS ENTERED DENYING REHEARING
ENTERED MAY 20, 2015 .............. . ................ ...... ... .. .......... ... . ... 31
3
TABLE OF AUTHORITIES
Arizona v.Gant ... ... ............ .. . .............. . ............... ..................... ......... ..... 12
556 U.S. 332 (2009)
Davis v. State,
947 S.W.2d 240 (Tex. Crim. App. 1997) ........... .. ...... ....... .... .. ... .. . . 11
Estrada v. State,
No. PD-0106-13, 2014 WL 969221 (Tex. Crim. App. Mar. 12, 2014) ...... 9
Florida v. Royer,
460 U.S. 491 , 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) .......... .... 10, 12, 14
Ford v. State,
158 S.W.3d 488 (Tex. Crim. App. 2005) .................................................................. 10
Meeks v. State,
692 S.W.2d 504 (Tex. Crim. App. 1985) ........................................................... . 13, 14
Rodriguez v. United States,
135 S. Ct. 1609 (Apr. 21, 2015) ............................................................................ 7, 11
St. George v. State,
237 S.W.3d 720 (Tex. Crim. App. 2007) .................................................................. 12
State v. Cullen,
195 S.W.3d 696 (Tex. Crim. App. 2006) ............................. ............................. 3, 6, 14
State v. Ortiz,
382 S.W.3d 367 (Tex. Crim. App. 2012) .......................... ...................................... 7, 8
State v. Rascbaum,
No. 08-03-00182-CR, 2005 Tex. App. LEXIS 4192 (Tex. App.-El Paso May 31,
2005) ······························ ····· ······· ············ ···································································· 13
United States v. Dortch,
199F.3d 193 (5thCir.1999) ................................................................................. 9, 11
United States v. Jones,
234 F.3d 234 (5th Cir. 2000) ..................................................................................... 12
United States v. Maclas
648 F.3d 506 (5th Cir. 2011) ..................................................................................... 11, 12
United States v. Sharpe,
470 U.S. 675 (1985) ................................................................................................... 10
Wyoming v. Houghton,
526 U.S. 295 (1999) ................................................................................................... 13
Other
Tex. R . App. P. 9.4(i)(2) ........................ .................................................................... 15
Tex. R. App. P. 66.3(c) ................................................................................................ 7
4
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Appellant, Stephanie Ann Schenk, respectfully submits this Petition for
Discretionary Review.
STATEMENT REGARDING ORAL ARGUMENT
Appellant dose not request oral argument in this case.
STATEMENT OF CASE
Schenk was charged by indictment August 30, 2012 with the state jail offense of
Possession of a Controlled Substance. A Motion to Suppress was filed January 9, 2013
and heard on the first day of February 2013. The Judge denied the Motion on January 23,
2014. The Appellant plead guilty on January 23, 2014 a Motion for a New Trial was
filed on February 2, 2014 and the Appellant filed Notice of Appeal on February 20, 2014.
Punishment was assessed at one year deferred adjudication. The Dallas Court of Appeals
overruled her Appeal on March 16, 2015. Appellant filed a Motion for Rehearing on
April 13, 2015 which was denied on May 20, 2015.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The Court of Appeals affirmed the conviction in an opinion issued March 16, 2015. See
Schenk v. State,_No. 05-14-00207-CR (Tex. App. -Dallas) (not designated for
publication). Appellant's Motion for Rehearing was filed on April 13, 2015. On May
20, 2015, the Appellate Court denied the motion for rehearing.
5
GROUNDS FOR REVIEW
GROUND 1
THE APPELLATE COURT ERRED WHEN IT DENIED APPELLANT'S
MOTION FOR REHEARING BECAUSE THE APPELLANT COURT USED THE
INCORRECT LEGAL STANDARD FOR DETERMINING IF MIRANDA SHOULD
APPLY TO THE QUESTIONING OF APPELLANT. PURSUANT TO RULE 66.3(C)
THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF
STATE OR FEDERAL LAW IN AWA Y THAT CONFLICTS WITH THE
APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE
SUPREME COURT OF THE UNITED STATES.
GROUND2
THE APPELLATE COURT ERRED WHEN IT SAID APPELLANT WAIVED
THE ISSUE THAT AN INVESTIGATIVE DETITION MUST BE TEMPORY AND
LAST NO LONGER THAN NECESSARY TO EFFECTUATE THE PURPOSE OF
THE STOP BECAUSE CONSTITUTIONAL ERROR DOES NOT NEED TO BE
RAISED AT THE TRIAL COURT LEVEL. PURSUANT TO RULE 66.3(C) THE
COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR
FEDERAL LAW IN AWA Y THAT CONFLICTS WITH THE APPLICABLE
DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME
COURT OF THE UNITED STATES. ANEW SUPREME COURT CASE THAT
APPLIES TO THIS CASE CAME DOWN ON APRIL 21 , 2015.
GROUND3
THE APPELLATE COURT ERRED WHEN IT SAID THAT THE OFFICER
DID NOT NEED APPELLANT'S CONSENT TO SEARCH HER PURSE. PURSUANT
TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT
QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH
THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR
THE SUPREME COURT OF THE UNITED STATES.
GROUND4
THE State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) BECAUSE
IT'S FINDINGS OFFACT AND CONCLUSIONS OF LAW ARE NOT BASED IN
THE RECORD. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS
DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A
WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.
REASON FOR REVIEW
6
Pursuant to Tex. R. App. P. 66.3(c), this Court should grant discretionary review
because the Court of Appeals has decided an important question of state law in a way that
conflicts with applicable decisions of the Court of Criminal Appeals. See State v. Ortiz,
382 S.W.3d 367 (Tex. Crim. App. 2012). The Court of Appeals is mistaken that
Appellant waived its next point of error because a constitutional error does not need to be
raised at a trial court and can argue it still. For instance, an investigative detention must
be temporary and last no longer than necessary to effectuate the purpose of the stop
Rodriguez v. United States, 135 S. Ct. 1609 (Apr. 21, 2015). In addition, the officers
needed Appellant's consent to search her purse. The Court did not follow Cullen because
its findings of facts and conclusions of law are not based on the record.
GROUND FOR REVIEW 1, RESTATED
THE APPELLATE COURT ERRED WHEN IT DENIED APPELLANT'S MOTION
FOR REHEARING BECAUSE THE APPELLANT COURT USED THE INCORRECT
LEGAL STANDARD FOR DETERMINING IF MIRANDA SHOULD APPLY TO
THE QUESTIONING OF APPELLANT. PURSUANT TO RULE 66.3(C) THE COURT
OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR
FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE
DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME
COURT OF THE UNITED STATES.
ARGUMENTS AND AUTHORITIES
In the Appellate Court' s Opinion Page 6, the Court misinterpreted State v. Ortiz, 382
S.W.3d 367 (Tex. Crim. App. 2012) by believing that it does not apply in this case and
therefore the officer did not need to give Appellant her Miranda warnings before
questioning her. Ortiz sets out the standard to be used to determine if someone is under
arrest and in custody for Miranda purposes. In making the custody determination, the
primary question is whether a reasonable person would perceive the detention to be a
restraint on his movement 'comparable to .... formal arrest,' given all the objective
7
circumstances. Id. at 372. The Court should only look at objective factors surrounding
the detention. Id.
All three subjects were ordered out of the vehicle and seated on the curb in the
rain. (RR P. 5711. 8-25; P. 58 11. 1-8; and P. 6811. 2-6) All three subjects continued to be
detained on the curb in the rain and were guarded by Officer Norton who also displayed
his gun. (RR. P. 59 11. 3-7) (State's Exh 1). Testimony at the hearing was as follows:
Q: And you had him guard these people, standing right in front of them, in
an intimidating manner, gun on, standing right in front of them, watching
their every move, would you agree with that?
A: Yes, sir. (RR P. 59 11. 3-7)
Officer White asks Schenk about narcotics and asks her if she has anything in her
shoes. (State's Exh. 1) He goes on to ask if they are IV drug users or if anyone is
recovering while he searches their arms for track marks, implying that all three
occupants are suspects. (State's Exh. 1). Again without giving Miranda warnings,
she takes her shoes off and nothing was found. (State's Exh. 1). The officer is asked if
they cannot sit on the wet ground and the officer refuses. (State's Exh. 1). Their
freedom has been restrained. The fact that Schenk may have smiled does not mean
that she is no longer under the control of the officers.
On p. 8, the Court also wants to say that the Appellant would not have felt
restrained because there were more passengers in the car than police officers. This
surmise ignores the fact that the passengers were smaller than the officers, unarmed
and that the police made a showing of authority (State's Exh 1). Even Officer White
admitted on the stand that the officer guarding them was intimidating. (RR. P 59 11. 3-
8
7) The officer guarding them had his hand on his gun for most of the video. (State's
Exh. 1) Appellant was a passenger in the vehicle late at night stopped on a road.
(State' s Exh. 1) Without access to a car that would drive away, where was there for
her to go? In addition, the officers had her purse in the car and a woman is not free to
go if she has not been returned her handbag. In United States v. Dortch, 199 F.3d 193
(5th Cir. 1999); the Fifth Circuit held that a person is not free to leave if the police are
holding their driver's license.
On p. 8, the Court also argues that because one of the passengers was allowed to
move between the curb and the police car, all the passengers were not restrained.
However, this argument ignores the fact that the Appellant and other passengers were
not allowed to get out of the rain and initially forced to sit on the wet ground after they
complained about it. (State's Exh 1).
The Court wants to compare this case to Estrada v. State, No. PD-0106-13, 2014
WL 969221, at *3 (Tex. Crim. App. March 12, 2014) because they say the officer did
not point blank ask Appellant if the drugs were hers; however, that is exactly what the
officer did. The Court claims that the questioning was done as a group; however,
Officer White summons Schenk to the front passenger door of the car and proceeds to
ask her if she has any marijuana in her purse again this was done without Miranda
warnings. (State's Exh. 1) The other passengers were at the back of the car when this
even happens. (State's Exh. 1). The officer believes that he knows what kind of drugs
she has by specifically naming them. In the beginning, there is a general inquiry, but
by the time the officer gets to Appellant's bag his questions are directed only to her
and she is separated from the group so Estrada would not apply. (State' s Exh. 1). In
9
addition Estrada would not apply because Estrada's person is not searched by the
police officer for track marks on her arms and feet. In addition, in the Estrada case,
the officers smelled marijuana going in.
Finally, the Court of Appeals misquotes Ford v. State, 158 S.W.3d 488 (Tex.
Crim. App. 2005) by saying it was a totality of the circumstances case. Instead the
state must prove what the totality of circumstances with specific articulable facts of
the traffic offenses.
GROUND FOR REVIEW 2, RESTATED
THE APPELLATE COURT ERRED WHEN IT SAID APPELLANT WAIVED THE
ISSUE THAT AN INVESTIGATIVE DETITION MUST BE TEMPORY AND LAST
NO LONGER THAN NECESSARY TO EFFECTUATE THE PURPOSE OF THE
STOP BECAUSE CONSTITUTIONAL ERROR DOES NOT NEED TO BE RAISED
AT THE TRIAL COURT LEVEL. PURSUANT TO RULE 66.3(C) THE COURT OF
APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL
LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF
THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE
UNITED STATES. A NEW SUPREME COURT CASE THAT APPLIES TO THIS
CASE CAME DOWN ON APRIL 21, 2015.
ARGUMENTS AND AUTHORITIES
The Court of Appeals is mistaken that Appellant waived its next point of error because a
constitutional error does not need to be raised at a trial court and can argue it still. In
addition, the same standard of proof does not apply to a motion to suppress as a trial. The
Supreme Court has said that "the scope of the detention must be carefully tailored to its
underlying justification" Florida v. Royer, 460 U.S. 491, 500 (1983). Authority for the
seizure ends when tasks tied to the traffic infraction are or reasonably should have been
completed. United States v. Sharpe, 470 U.S. 675, 686 (1985). "Highway and officer
safety are interests different in kind from the Government's endeavor to detect crime in
general or drug trafficking in particular." Rodriguez v. United States, 135 S. Ct. 1609,
10
191L.Ed2d 492, 2015 U.S. LEXIS 2807, 500 (No. 13-9972 April 21 , 2015). In
Rodriguez, the critical question for the Supreme Court was not whether the dog sniff
occurs before or after the officer issues a ticket, but whether conducting the sniff
"prolongs", adds time to the "stop". Id. at 501. The Court found a "seven or eight
minute delay" umeasonable and remanded the case to the Eighth Circuit for further
consideration. Id. at 497, 501. Therefore, in Appellant's case the detention was
unreasonably delayed and the evidence should have been suppressed. In addition,
Rodriguez is a new Supreme Court case which should be considered in decided
Appellant's case since her case is still on appeal.
Previous cases have also supported this proposition. An investigative detention
must be temporary and last no longer than necessary to effectuate the purpose of the stop.
Dortch, 199 F.3d at 198; Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).
Once the reason for the stop has been satisfied, the stop may not be used as a fishing
expedition for unrelated criminal activity. Davis, 947 S.W.2d at 243. An officer's
subsequent actions are not reasonably related in scope to the circumstances that caused
him to stop the vehicle if he detains its occupants beyond the time needed to investigate
the circumstances that caused the stop, unless he developed reasonable suspicion of
additional criminal activity in the meantime. United States v. Macias, 648 F.3d 509, 519
(5th Cir. 201 1). Reasonable suspicion exists when the detaining officer can point to
specific and articulable facts that, when taken together with rational inferences from
those facts, reasonably warrant the seizure. Id. at 519-20. The suspicion required to
justify such a detention need not rise to the level of probable cause but must be based on
more than an unparticularized suspicion or a hunch and instead must consider "the
11
totality of the circumstances and the collective knowledge and experience of the officer"
Id. at 520. Acknowledging a prior arrest does not amount to reasonable suspicion.
United States v. Jones, 234 F.3d 234 (5th Cir. 2000). Moreover, absent reasonable
suspicion, officers may conduct only consensual questioning of passengers in a vehicle.
St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App. 2007). Officers may not
convey a message that compliance with their request is required absent reasonable
susp1c1on.
Officer White admits that he did not stop the vehicle to give the driver a ticket.
(R.R. P. 53 11. 19-23) Therefore, when the computerized check came back negative,
Schenk and the occupants of the vehicle should have been free to leave and allowed to
drive away. The extending the detention further was an unreasonable seizure under the
4th amendment of the Constitution. The Court of Appeals suggests that the detention
was not over because the officer had not issued a warning ticket. However, an officer
cannot just delay and delay and delay issuing a ticket to extend the stop. An investigative
detention must be temporary and last no longer than is necessary to effectuate the purpose
of the stop. Royer, 460 U.S. at 500
Moreover, Appellant had a reasonable expectation of privacy and once dispatcher
came back saying she did not have a warrant, she had an expectation of privacy and she
should have been free to leave. Each person at the scene needs to be taken individually.
Appellant made no furtive move, no sign of aggression, and was cooperative. The
officers took the Appellant the only female to the only handbag in the car. In Arizona v.
Gant, 556 U. S. 332_(2009), the Court considered the threshold question whether the
police may conduct a search incident to arrest at all once the scene is secure.
12
GROUND FOR REVIEW 3, RESTATED
THE APPELLATE COURT ERRED WHEN IT SAID THAT THE OFFICER DID NOT
NEED APPELLANT'S CONSENT TO SEARCH HER PURSE. PURSUANT TO
RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT
QUESTION OF STATE OR FEDERAL LAW fN A WAY THAT CONFLICTS WITH
THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR
THE SUPREME COURT OF THE UNITED STATES.
ARGUMENTS AND AUTHORITIES
Appellant further argues that the Court's reliance on Wyoming v. Houghton, 526 U.S.
295 (1999) is misplaced in decided that the officer did not need Appellant's consent to
search her purse. This case more closely resembles State v. Rascbaum, No. 08-03-00182-
CR , 2005 Tex. App. LEXIS 4192, * 12 (Tex. App - El Paso May 31, 2005). In that case
the driver had a white powdery substance on his lip that could have been cocaine;
however, because the officers failed to test the substance it failed to raise to the level of
probable cause to allow the police to search the passenger's purse in the car to be
searched. In this case, the officer found a marijuana pipe but did not test the pipe to
determine what the substance was. Because this case is more like Rascbaum than
Houghton, Appellant did need to freely and voluntarily give her consent because she was
coerced. Before the consent to search is deemed effective the prosecution must prove by
clear and convincing evidence that the consent was freely and voluntarily given. Meeks
v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985). The burden requires the
prosecution to show the consent was given was positive and unequivocal and there must
not be duress or coercion, actual or implied. Id. The consent to search is invalid if
granted only in submission to a claim of lawful authority. Id. If the detention is unlawful
it may also have tainted apparent voluntary consent to search. Id. The question of
whether consent was voluntary is a question of fact to be determined from the totality of
13
the circumstances. Id. at 510. Consent is not to be confused with peaceful submission to
a claim of lawful authority. Florida v. Royer, 460 U.S. 491, 497 103 S.Ct. 1319, 75
L.Ed.2d 229 (1983). Royer's consent was tainted by his illegal detention. Id. at 507.
GROUND FOR REVIEW 4, RESTATED
THE APPELLATE COURT ERRED WHEN IT SAID STATE V CULLEN, 195 S.W.3d
696 (Tex. Crim. App. 2006) DID NOT APPLY TO THIS CASE BECAUSE THE
TRIAL COURT DID NOT FOLLOW CULLEN BECAUSE IT'S FINDINGS OF FACT
AND CONCLUSIONS OF LAW ARE NOT BASED IN THE RECORD. PURSUANT
TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT
QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH
THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR
THE SUPREME COURT OF THE UNITED STATES.
ARGUMENTS AND AUTHORITIES
The Court of Appeals is also incorrect about stating that State v. Cullen does not apply in
this case. It states that: upon the request of the losing party on a motion to suppress, the
trial court shall state its essential findings. By "essential findings," we mean that the trial
court must make findings of fact and conclusions of law adequate to provide an appellate
court with a basis upon which to review the trial court's application of the law to the
facts. 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). The Court did not follow Cullen
because its findings of facts and conclusions oflaw are not based on the record. For this
brief, only those findings that did not comply with Cullen are discussed below: The
Court made finding of fact that were not based on specific testimony stating facts that
issues are not raised in a specific and articulable manner. The law requires that in
suppression testimonies that the Court cannot rely on just conclusionary statements made
by the State's witnesses without being specific and articulable. The entire record under
State v. Cullen clearly proves this. Given the arguments presented above it is clear that
14
based on the necessity the Opinion as it is now stands should be reconsidered and that the
Court overrule the Trial Court's ruling and/ or remand the case back for further
procedures.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable
Court grant this Petition for Discretionary Review and reverse the Court of Appeals'
decision.
Respectfully submitted,
ATT
f
YFOR
JE KELLY.
BAR CARD # 112 500
4131 N. Central EXPWY Suite 110
DALLAS, TEXAS 75204
214-522-7700 PHONE
214-522-7704 FAX
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief has been served on Collin
County District Attorney 2100 Bloomdale Road, Suite 100, McKinney, TX 75071 and
the State's Attorney by eFax, depositing in the United States mail, postage prepaid, or by
hand delivery or by fax on l] Ble person in Schenk's position to believe she was in
custody.
Schenk next argues the arrival of a second officer, and Officer White saying, "Don't take
off running, [the back up officer] is pretty quick," indicated they were not free to leave, and the
stop had escalated into "something inherently more coercive." First, after Office White made the
statement about not running off, the video shows Schenk smiling and shaking her head, which
indicates she did not take the comment as a restraint on her freedom to leave. Further, later in
the video Chaudoir is seen freely moving between sitting on the curb and leaning against a police
car indicating the situation was not coercive to the point they felt they had to stay in one place.
No one was handcuffed, ordered to stay in one place, or being intimidated by an officer with a
drawn weapon, which would indicate a custodial situation. Second, in Ortiz, the court noted
" [a]n ordinary traffic stop usually involves a single police car and one or two officers." 382
S.W.3d at 372. In that case, the appellee was faced with at least two police cars and three
officers at the time he made an incriminating statement. Id. The court concluded that "while it
was hardly an overwhelming show of force," the show of force added "at least marginally" to the
court's conclusion he was in custody for Miranda purposes at the time he made the incriminating
statement. Id. Here, the occupants still outnumbered the officers present. Thus, the occupants
were subjected to even less of a showing of force than the Ortiz court found to be "hardly
- 8-
overwhelming." Accordingly, we cannot conclude the arrival of a second officer would lead a
reasonable person to believe she was not free to leave or that the situation had escalated to a
custody situation.
Schenk also argues that Officer White "loudly and within hearing of Ms. Schenk"
indicated his belief they were suspects in drug activity; therefore, Officer White's subjective
belief is relevant to our custody determination. The record does not support Schenk' s
contention. On the video, Officer White pulls Chaudoir from the others and tells him people
have been "running through here dealing drugs and breaking into cars and stuff like that. I'm not
saying you guys are doing it but I want to make sure you're not." Officer White's statement
indicates he did not specifically believe they were engaging in criminal activity. Further, there is
nothing in the record indicating Schenk heard the exchange between Officer White and
Chaudoir. Therefore, Officer White's statement did not manifest his belief to Schenk that she
was a suspect, thereby making his subjective belief relevant to the custody determination. Ortiz,
382 S.W.3d at 373.
Finally, Schenk argues that when Officer White found the marijuana pipe in the car and
asked her if she had anything like that in her purse, he continued to emphasize she was a suspect
and the traffic stop was coercive. First, during an investigative detention, custody is not
established simply because the suspect is not able to leave until the investigation is complete.
See Lee v. State, No. 05-02-00508-CR, 2003 WL 21212822, at *8 (Tex. App.-Dallas May 27,
2003, pet. dism'd, untimely filed) (not designated for publication). Second, as will be further
explained below, to the extent Schenk argues a Miranda violation invalidated the search of her
purse, the search of her purse was justified without her consent. See Wyoming v. Houghton, 526
U.S. 295, 306--07 (1999) (holding when probable cause exists to search a vehicle, the search
extends to all containers inside which may hold incriminating evidence, including a passenger's
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purse). Thus, Schenk's argument does not impact whether she was in custody for purposes of
Miranda.
Having considered Schenk's arguments, we conclude the trial court correctly determined
a reasonable person would not perceive the detention to be a restraint on her movement
comparable to a formal arrest given all the objective circumstances. See Ortiz, 382 S.W.3d at
373. Thus, the routine traffic stop did not escalate into a formal arrest in which Schenk provided
incriminating information without proper Miranda warnings. We overrule her first issue.
Scope of Traffic Stop
In her second issue, Schenk argues Officer White extended the traffic stop beyond the
reasonable time to give a warning or a ticket. She contends once the warrant checks came back
clear, she and the other occupants were free to leave, and extending the detention further was an
unreasonable seizure under the Fourth Amendment. The State responds the issue is not
preserved for our review, and even if it is preserved, Officer White did not irnpermissibly
prolong the traffic stop.
A motion to suppress evidence is nothing more than a specialized objection to the
admissibility of evidence. See Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012); see
also Flores v. State, No. 05-91-01475-CR, 2000 WL 124666, at *8 (Tex. App.- Dallas Feb. 3,
2000, pet. ref d) (not designated for publication). Thus, a motion must meet the requirements of
an objection by being timely, proper, and specific. TEx. R. APP. P. 33.1; Flores, 2000 WL
124666, at *8. The failure to object waives any error, and generally, an appellant may not raise
an issue which was not raised to the trial court or which varies from the objection made to the
trial court. Vafaiyan v. State, 279 S.W.3d 374, 383 (Tex. App.- Fort Worth 2008, pet. refd)
(concluding appellant failed to preserve error regarding alleged staleness of infonnation in a
search warrant when he failed to raise the issue in his motion to suppress).
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Schenk did not argue in her motion to suppress or at the suppression hearing that the
length of her detention provided an independent reason to suppress the methamphetamine.
Rather, she argued reasonable suspicion for the stop, probable cause for the arrest, and violation
of Miranda. Moreover, Schenk' s only objection to the trial court's finding that "The detention
of Bertrand, Schenk, and Chaudoir was reasonable and lawful" was "there was no Miranda
warning prior to the search of the vehicle when the request for consent was made, the situation
had already escalated to a drug investigation from a simple traffic stop." Because Schenk failed
to raise her argument to the trial court regarding the alleged prolonged detention of the initial
stop, she has waived her complaint. Id.; see also TEX. R. APP. P. 33.1. Schenk' s second issue is
overruled.
Consent to Search
In her third issue, Schenk argues her consent to search her purse was not "clear and
unequivocal as well as freely and voluntarily given." The State responds the issue is not
preserved, consent was voluntarily given, and the search of her purse was justified without her
consent.
The State first argues the issue is not preserved because the record indicates Schenk
seemed to object to whether she gave consent to the search of her property "at all" and "not
whether the consent was voluntary." While the record from the hearing is not precise on this
issue, the trial court issued a finding of fact and conclusion of law that "Schenk knowingly and
voluntarily consented to the retrieval of the item in her purse by Officer White." As such, we
decline the State' s invitation to waive her issue.
We agree, however, with the State's argument that Officer White did not need Schenk's
consent prior to searching her purse; therefore, we need not consider whether her consent was
"clear and unequivocal as well as freely and voluntarily given." In Wyoming v. Houghton, the
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United States Supreme Court answered the question of whether police officers violate the Fourth
Amendment when they search a passenger's personal belongings inside an automobile that they
have probable cause to believe contains contraband. 526 U.S. at 297. That case specifically
involved the search of a passenger's purse after an officer found drug paraphernalia on the
driver, which provided probable cause to search the rest of the car. Id. at 298. Inside the purse,
the officer found drug paraphernalia and charged the defendant accordingly. Id. at 295. The
Supreme Court concluded, "When there is probable cause to search for contraband in a car, it is
reasonable for police officers . . . to examine packages and containers without a showing of
individualized probable cause for each one." Id. at 302. A passenger's belongings are "in" the
car, and an officer has probable cause to search for contraband "in the car." Id. ; see also Huerta
v. State, No. 07-10-00049-CR., 2012 WL 280569, at *2 (Tex. App.- Amarillo Jan. 31, 2012, no
pet.) (mem. op) (not designated for publication) (concluding search of passenger's purse was
proper after driver gave consent to search vehicle and officer found crack pipe inside vehicle).
Similar to the facts in Houghton, Officer White found a pipe with marijuana residue,
which provided him with probable cause to continue his search of the car. See Gutierrez v. State,
221 S.W.3d 680, 685 (Tex. Crim. App. 2007) (probable cause to search exists when reasonably
trustworthy facts and circumstances within the knowledge of the officer on the scene would lead
persons of reasonable prudence to believe that an instruinentaJity of a crime or evidence
pertaining to a crime will be found). Thus, it was reasonable for Officer \Vhite to search
Schenk's purse because the purse was "a container one would reasonably believe to contain such
evidence," of drug activity. Huerta, 2012 WL 280569, at *2; Houghton, 526 U.S. at 302.
In reaching this conclusion, we are not persuaded by Schenlc's reliance on Stokvis v.
State, 147 S.W.3d 669 (Tex. App.- Amarillo 2004, pet. refd) to invalidate the search of her
purse. In that case, an officer stopped a truck for speeding, and the driver gave permission to
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search the truck. Id. at 670. The defendant, who was the passenger, left her purse in the front
seat. Id. The first officer did not discover anything during a search of the truck. Id. A second
officer conducted his own search of the truck, which included opening the defendant' s purse, and
he found methamphetamine. Id. The court concluded the search of the defendant's purse was
improper because she had a legitimate expectation of privacy in her purse and under the facts,
the driver' s consent to search his truck did not extend to her purse because the driver was a third
party whom the State failed to show had a legitimate expectation of privacy in or authority to
jointly use the purse. Id. at 672.
The glaring omission from the facts of Stokvis is the presence of drugs or other
contraband found inside the vehicle providing probable cause to search other items inside the
car. At the time the officer in Stokvis searched the defendant's purse, the officer had found
nothing illegal inside the truck, which is a key distinction from the facts presently before us.
Thus, Schenk's reliance on Stokvis is not persuasive.
Accordingly, Officer White conducted a legal search of Schenk's purse regardless of her
consent. Her third issue is overruled.
Findings of Fact and Conclusions of Law Under State v. Cullen
In her fourth issue, Schenk argues the trial court failed to enter findings of fact and
conclusions of law as required under State v. Cullen, 195 S. W.3d 696 (Tex. Crim. App. 2006).
The State responds the trial court did not omit any dispositive findings necessary for resolution
of the issues on appeal. We agree with the State.
In Cullen, the court held that "upon the request of the losing party on a motion to
suppress evidence, the trial court shall state its essential findings." Id. at 698. "Essential
findings" are those findings and conclusions adequate to provide an appellant court with a basis
upon which to review the trial court's application of the law to the facts. Id. at 699. Findings are
-13-
inadequate when they are so incomplete an appellate court 1s unable to make a legal
determination regarding a dispositive issue. See State v. Saenz, 411 S.W.3d 488, 495 (Tex.
Crim. App. 2013).
At Schenk's request, the trial court entered fifty-seven findings of fact and conclusions of
law justifying its decision to deny the motion to suppress. Although Schenk complains about
forty-five of the findings and conclusions for various reasons such as not supported by the
record, irrelevant, or incorrect legal conclusion, she never alleges the trial court failed to make .
any essential finding on a dispositive issue. Rather than complain about omitted findings, which
could violate Cullen, she merely objects to those findings made. Therefore, because Schenk has
not complained about any omitted findings that would be dispositive to her issues on appeal, the
trial court's findings and conclusions do not violate Cullen. Schenk's fourth issue is overruled.
Conclusion
The judgment of the trial court is affirmed.
Do Not Publish
TEX. R. APP. P. 47
140207F.U05 /David L. Bridges/
DAVID L. BRIDGES
JUSTICE
- 14-
@:ourt of Appeals
1J1iftff ilistrict of Wcxas at ilaUas
JUDGMENT
STEPHANIE ANN SCHENK, Appellant On Appeal from the 380th Judicial District
Court, Collin County, Texas
No. 05-14-00207-CR V. Trial Court Cause No. 380-82013-2012.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Lang-Miers and Myers
participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 16, 2015.
- 15-
Order entered May 20, 2015
In The
QCourt of ~pta~
jfiftb iiistritt of Q°;txas at manas
No. 05-14-00207-CR
STEPHANIE ANN SCHENK, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-82013-2012
ORDER
Appellant Stephanie Ann Schenlc' s motion for rehearing filed on April 13, 2015 is
DENIED.
Isl DAVID L. BRIDGES
JUSTICE