Ariana Oliveira v. State ( 2015 )


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  •                                                                                 ACCEPTED
    03-14-00816-CR
    5192332
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    5/7/2015 12:36:32 PM
    JEFFREY D. KYLE
    CLERK
    NO. 03-14-00816-CR
    FILED IN
    IN THE                 3rd COURT OF APPEALS
    AUSTIN, TEXAS
    5/7/2015 12:36:32 PM
    COURT OF APPEALS
    JEFFREY D. KYLE
    Clerk
    THIRD DISTRICT OF TEXAS
    AUSTIN, TEXAS
    ARIANA OLIVEIRA                 §                         APPELLANT
    vs.                            §
    THE STATE OF TEXAS             §                           APPELLEE
    APPEAL FROM THE COUNTY COURT AT LAW NUMBER EIGHT
    TRAVIS COUNTY, TEXAS
    CAUSE NO. C-1-CR-14-209113
    APPELLANT'S BRIEF
    JOSHUA D. SAEGERT
    Law Office of Joshua D. Saegert
    609 W. 9th Street
    Austin, Texas 78701
    Phone: (512) 371-3477
    Fax: (512) 236-9287
    saegertlaw@yahoo.com
    State Bar No. 90001888
    ATTORNEY FOR DEFENDANT
    Oral Argument Requested
    IDENTITY OF PARTIES AND COUNSEL
    Ariana Oliveira
    2709 Barton Point Dr.
    Austin, Texas 78733
    Appellant
    Joshua D. Saegert
    609 W. 9th Street
    Austin, Texas 78701
    Appellate Attorney for Appellant
    Joshua D. Saegert
    609 W. 9th St.
    Austin, TX 78701
    Trial Attorney for Appellant
    Allison Tisdale
    Travis County Attorney's Office
    P.O. Box 1748
    Austin, Texas 78767
    Trial Attorney for the State
    Stephen H. Capelle
    Travis County Attorney's Office
    P. 0. Box 1748
    Austin, TX 78767
    Appellate Attorney for the State
    Lisa C. McMinn
    Travis County Attorney's Office
    P. 0. Box 1748
    Austin, TX 78767
    Appellate Attorney for the State
    1
    David A. Escamilla
    Travis County Attorney's Office
    P. 0. Box 1748
    Austin, TX 78767
    Appellate Attorney for the State
    The Honorable Carlos Barrera
    County Court at Law Number Eight
    P.O. Box 1748
    Austin, Texas 78767
    Trial Judge
    11
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL ............................................................ i
    TABLE OF AUTHORlTIES ................................................................................... iv
    STATEMENT OF THE CASE ................................................................................ vi
    STATEMENT REGARDING ORAL ARGUMENT ............................................. vii
    ISSUE PRESENTED ............................................................................................. viii
    STATEMENT OF FACTS ....................................................................................... 2
    SUMMARY OF THE ARGUJ\1ENT ....................................................................... 3
    POINT OF ERROR ................................................................................................... 3
    THE TRlAL COURT ERRED IN OVERRULING APPELLANT'S
    MOTION TO      SUPPRESS   EVIDENCE BECAUSE NO
    REASONABLE PERSON WOULD HAVE FELT FREE TO LEAVB
    WHEN THE OFFICER SIGNALED THAT THE APPELLANT
    WAS DETAINED BY USING HIS OVERHEAD RED AND BLUE
    LIGHTS, AND THERE WAS NOT REASONABLE SUSPICION
    TO SUPPORT THE DETENTION................................................................ 3
    PRAYER ................................................................................................................. 11
    CERTIFICATE OF SERVICE ............................................................................... 12
    CERTIFICATE OF COMPLIANCE ...................................................................... 12
    111
    TABLE OF AUTHORITIES
    Cases
    Amador v. State, 
    221 S.W.3d 666
    (Tex. Crim. App. 2007) ................................... 4-5
    Corbin v. State, 
    85 S.W.3d 272
    (Tex. Crim. App. 2002) ......................................... 8
    Crain v. State, 
    315 S.W.3d 43
    (Tex. Crim. App. 2010) .................................. 6, 9-10
    Estrada v. State, 
    154 S.W.3d 604
    (Tex. Crim. App. 2005) ...................................... 
    5 Fla. v
    . Bostick, 
    501 U.S. 429
    (1991) ................................................................... 7
    Guinn v. State, 
    1998 WL 418034
    (Tex. App.-Houston[1stDist.] 1998, no pet.) ... 9
    Guzman v. State, 
    955 S.W.2d 85
    (Tex. Crim. App. 1997) ....................................... 4
    Johnson v. State, 
    68 S.W.3d 644
    (Tex. Crim. App. 2002) .................................... 4-5
    Kaupp v. Texas, 
    538 U.S. 626
    (2003) .................................................................... 6-7
    Madden v. State, 
    242 S.W.3d 504
    (Tex. Crim. App. 2007) ...................................... 5
    Montanez v. State, 
    195 S.W.3d 101
    (Tex. Crim. App.2006) .................................... 4
    Romero v. State, 
    800 S.W.2d 539
    (Tex. Crim. App.l990) ....................................... 4
    State v. Garcia-Cantu, 
    253 S.W.3d 236
    (Tex. Crim. App. 2008) ..................... 6-7, 9
    State v. Kelly, 
    204 S.W.3d 808
    (Tex. Crim. App. 2006) .......................................... 5
    State v. Ross, 
    32 S.W.3d 853
    (Tex. Crim. App. 2000), modified on other grounds
    by State v. Cullen, 
    195 S.W.3d 696
    (Tex. Crim. App. 2006) ....................... :........ 4
    Terry v. Ohio, 
    392 U.S. 1
    (1968) .............................................................................. 6
    United States v. Steele, 
    782 F. Supp. 1301
    (S.D.Ind.1992) ....................................... 7
    lV
    Wiede v. State, 
    214 S.W.3d 17
    (Tex. Crim. App. 2007) ........................................ 4-5
    Statutes
    TEX. CODE CRIM. PROC. ART. 14.01 .......................................................................... 9
    TEX. TRANS. CODE §543.001 ..................................................................................... 9
    TEX. TRANS. CODE §543.004 ..................................................................................... 9
    TEx. TRANs. CoDE §542.501 ..................................................................................... 9
    TEx. CoNsT. ART. I, §9 .............................................................................................. 6
    u.s. CONST. AMEND. 4 .............................................................................................. 6
    v
    STATEMENT OF THE CASE
    Nature of the case:                On July 7, 2014, the Travis County Attorney
    filed an information alleging that Appellant
    committed the offense of Driving While
    Intoxicated on or about June 6, 2014. CR
    16.
    Course ofproceedings:             Appellant filed a motion to suppress
    evidence on October 7, 2014. CR 30-34. A
    hearing on this motion was held on October
    29, 2014. RR II. The trial court denied
    Appellant's motion to suppress on
    November 14, 2014. RR III 4. The court
    issued Findings of Fact and Conclusions of
    Law explaining its decision. CR 85-86.
    Disposition of the case:          Following the denial of her motion to
    suppress evidence, Appellant pleaded "no
    contest." CR 90-91. The trial court found
    Appellant guilty of this offense and
    sentenced her to 180 days in jail probated
    for 2 years. CR 92-93. The trial court
    certified that Appellant had the right to
    appeal its ruling on the motion to suppress.
    CR 105. Appellant timely filed her notice of
    appeal on December 29, 2014. CR 102-103.
    Vl
    STATEMENT REGARDING ORAL ARGUMENT
    Appellant requests oral argument because she believes that it would aid in this
    Court's decision process. The resolution of the issue on appeal turns on whether
    an officer can detain a person solely because their vehicle is stopped on the side of
    the road. Oral argument would assist in clarifying when an officer can detain a
    citizen solely to investigate without any articulable facts that criminal activity is
    taking place.
    Vll
    ISSUE PRESENTED
    When a police officer pulls behind a vehicle that is parked on the side of the road
    and turns on his overhead red and blue lights, would a reasonable person believe
    that she was free to leave.
    Vlll
    NO. 03-14-00816-CR
    IN THE
    COURT OF APPEALS
    THIRD DISTRICT OF TEXAS
    AUSTIN, TEXAS
    ARIANA OLIVEIRA                         §                          APPELLANT
    vs.                                     §
    THE STATE OF TEXAS                      §                            APPELLEE
    APPEAL FROM THE COUNTY COURT AT LAW NUMBER EIGHT
    TRAVIS COUNTY, TEXAS
    CAUSE NO. C-1-CR-14-209113
    TO THE HONORABLE COURT OF APPEALS:
    COMES NOW Appellant Ariana Oliveira, by and through her undersigned
    counsel, and offers this Appellant's Brief. Appellant would respectfully show the
    Court the following:
    1
    STATEMENT OF FACTS
    Austin Police Officer Bryce Sakamoto testified that he was on duty on June
    6th   2014 and arrested the Appellant Ariana Oliveira for Driving While Intoxicated.
    RR II 6. Officer Sakamoto was driving southbound on the IH-35 frontage road
    when he saw Appellant's vehicle on Old San Antonio road, just west of the IH-35
    frontage road. The vehicle was running, the headlights were on and it was stopped
    in the dirt embankment on the side of Old San Antonio road. RR II 7. He pulled
    behind her, turned on his overhead lights and detained her. RR II 7-8. He had
    observed no moving violations. RR II 10. Officer Sakamoto testified that it took
    approximately ten seconds from the time he saw her vehicle until he pulled behind
    her and turned on his overhead lights.        RR II 11.     During that ten second
    observation period, he did not have any reason to believe criminal activity was
    taking place. RR II 11. Officer Sakamoto further testified that once he turned on
    his overhead lights, she was not free to leave. RR II 12. He testified to be clear for
    the court, she was detained. RR II 13. Officer Sakamoto did not see anyone in
    distress. RR II 19. There were other vehicles that passed by during his detention
    of Appellant, and there was some lighting coming from the nearby shopping
    center. RR II 14-15, 19. This was an area that Officer Sakamoto was familiar with
    and there was no evidence that this was a high crime area.           RR II 21.    He
    2
    approached Miss Oliveira's vehicle with her inside. After speaking with her he
    suspected that she might be intoxicated and began a criminal investigation. RR II
    24. Based on the subsequent investigation the Appellant was arrested for DWI.
    SUMMARY OF THE ARGUMENT
    The trial court erred in overruling Appellant's motion to suppress all
    evidence derived from the illegal detention of her vehicle. No reasonable person
    would have felt free to leave when a police officer pulls his car behind a car and
    turns on his red and blue overhead lights.        In fact, disobeying the officer's
    command to stop would have been an arrestable offense.             As a result, an
    investigative detention occurred when Officer Sakamoto stopped Appellant.
    Because there were no articulable facts supporting reasonable suspicion for this
    detention, the trial court should have granted Appellant's motion to suppress.
    POINT OF ERROR
    THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S
    MOTION TO SUPPRESS EVIDENCE BECAUSE NO
    REASONABLE PERSON WOULD HAVB FELT FREE TO LEAVB
    WHEN THE OFFICER SIGNALLED THAT THE APPELLANT
    WAS DETAINED BY USING HIS OVERHEAD RED AND BLUE
    LIGHTS, AND THERE WAS NOT REASONABLE SUSPICION
    TO SUPPORT THE DETENTION.
    3
    Argument and Authorities
    An appellate court reviews a trial court's ruling on a motion to suppress
    evidence under a bifurcated standard of review. Amador v. State, 
    221 S.W.3d 666
    ,
    673 (Tex. Crim. App. 2007); Guzman v. State, 
    955 S.W.2d 85
    , 89 (Tex. Crim.
    App. 1997). In reviewing the trial court's decision, the reviewing court does not
    engage in its own factual review. Romero v. State, 
    800 S.W.2d 539
    , 543 (Tex.
    Crim. App.1990). As the sole trier of fact, the trial judge is in the best position to
    assess the credibility of the witnesses and the weight to be given their testimony.
    Wiede v. State, 
    214 S.W.3d 17
    , 24-25 (Tex. Crim. App. 2007); State v. Ross, 
    32 S.W.3d 853
    , 855 (Tex. Crim. App. 2000), modified on other grounds by State v.
    Cullen, 
    195 S.W.3d 696
    (Tex. Crim. App. 2006). Therefore, a reviewing court
    gives almost total deference to the trial court's rulings on (1) questions of historical
    fact, even if the trial court's determination of those facts was not based on an
    evaluation of credibility and demeanor, and (2) application-of-law-to-fact
    questions that tmn on an evaluation of credibility and demeanor. 
    Amador, 221 S.W.3d at 673
    ; Montanez v. State, 
    195 S.W.3d 101
    , 108-09 (Tex. Crim.
    App.2006); Johnson v. State, 
    68 S.W.3d 644
    , 652-53 (Tex. Crim. App. 2002).
    However, when application-of-law-to-fact questions do not tum on the credibility
    and demeanor of the witnesses, the appellate court reviews the trial court's rulings
    4
    on those questions de novo. 
    Amador, 221 S.W.3d at 673
    ; Estrada v. State, 
    154 S.W.3d 604
    , 607 (Tex. Crim. App. 2005); 
    Johnson, 68 S.W.3d at 652-53
    .
    Stated another way, when reviewing the trial court's ruling on a motion to
    suppress, this Court should view the evidence in the light most favorable to the
    trial court's ruling. 
    Wiede, 214 S.W.3d at 24
    ; State v. Kelly, 
    204 S.W.3d 808
    , 818
    (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, this
    Court determines whether the evidence, when viewed in the light most favorable to
    the trial court's ruling, supports those factual findings. 
    Kelly, 204 S.W.3d at 818
    -
    19. This Court should then review the trial court's legal ruling de novo unless its
    explicit fact findings that are supported by the record are also dispositive of the
    legal ruling. Id at 819.
    Here, the trial court's factual findings are not dispositive of the legal ruling
    (i.e., whether a reasonable person would have felt free to leave when Officer
    Sakamoto signaled that the Appellant was detained by using his overhead red and
    blue lights). As a result, this Court should conduct a de novo review of the trial
    court's application of the law to the facts of the case. See Madden v. State, 
    242 S.W.3d 504
    , 517 (Tex. Crim. App. 2007) (reviewing de novo whether the totality
    of the circumstances was sufficient to support an officer's reasonable suspicion of
    criminal activity).
    5
    There are three distinct categories of interactions between citizens and police
    officers: (1) consensual encounters, (2) investigative detentions, and (3) arrests.
    Crain v. State, 
    315 S.W.3d 43
    , 49 (Tex. Crim. App. 2010). While a consensual
    encounter is not subject to constitutional scrutiny, a detention constitutes a
    "seizure" under both the United States and Texas constitutions. See TEX.CONST.
    ART. I, §9; see also U.S.CONST.AMEND. 4; see also 
    Crain, 315 S.W.3d at 49
    ; see
    also State v. Garcia-Cantu, 
    253 S.W.3d 236
    , 242 (Tex. Crim. App. 2008).
    Because an encounter is consensual by nature, a citizen is free to terminate it at any
    time.    
    Crain, 315 S.W.3d at 49
    .       "An encounter takes place when an officer
    approaches a citizen in a public place to ask questions, and the citizen is willing to
    listen and voluntarily answers." 
    Id. Meanwhile, "an
    investigative detention occurs
    when a person yields to the police officer's show of authority under a reasonable
    belief that he is not free to leave." Id.; see also Terry v. Ohio, 
    392 U.S. 1
    , 19 n.16
    (1968) (a seizure occurs when an officer, "by means of physical force or show of
    authority, has in some way restrained the liberty of a citizen").
    In analyzing the question of whether a seizure has occurred, courts consider
    all of the circumstances surrounding the encounter. 
    Garcia-Cantu, 253 S.W.3d at 242
    ; see also Kaupp v. Texas, 
    538 U.S. 626
    , 629 (2003).             While the officer's
    conduct is the primary focus of the inquiry, the time, place, and attendant
    circumstances are also important considerations. 
    Id. at 244.
           "A court must step
    6
    into the shoes of the defendant and determine from a common, objective
    perspective whether the defendant would have felt free to leave." 
    Id. at 244
    (quoting United States v. Steele, 
    782 F. Supp. 1301
    , 1309 (S.D.Ind.l992). This
    reasonable-person test is both objective and fact specific; moreover, it presupposes
    an innocent person. 
    Id. at 24
    3.
    A seizure has occurred if "the police conduct would have communicated to a
    reasonable person that the person was not free to decline the officers' requests or
    otherwise terminate the encounter." 
    Garcia-Cantu, 253 S.W.3d at 242
    (citing
    Florida v. Bostick, 
    501 U.S. 429
    , 439 (1991)). The Court of Criminal Appeals
    succinctly describes the core issue in this type of case:
    It is the display of official authority and the implication that this
    authority cannot be ignored, avoided, or terminated, that results in a
    Fourth Amendment seizure. At bottom, the issue is whether the
    surroundings and the words or actions of the officer and his associates
    communicate the message of"We Who Must Be Obeyed."
    I d. at 243
    Turning to the case at bar, the trial court incorrectly concluded that Officer
    Sakamoto's conduct was consistent with a consensual encounter rather than a
    detention. CR 85-86. Contrary to the trial court's conclusion, the undisputed facts
    demonstrate that a reasonable person would have yielded to the officer's display of
    authority.
    7
    The attendant circumstances are critical in analyzing how a reasonable
    person would have responded to Officer Sakamoto's show of authority. The time
    was 1:45 am, and Appellant had pulled over and parked on the side of the road to
    check her GPS for directions.
    Appellant had pulled off of the IH-35 frontage road and then off of the side
    road so that she could safely stop her vehicle and check her GPS monitor for
    directions. There was lighting coming from the nearby shopping center and other
    vehicles are seen drving by during the encounter. It was not a dark and dangerous
    place in a high crime area.      Appellant nor her vehicle displayed any signs of
    distress or criminal activity prior to Officer Sakamoto detaining her.
    At the hearing, on re-direct by the state, Officer Sakamoto disingenuously
    suggested that Appellant was free to leave prior to his contact with her. RR II 22.
    This is despite the fact that he had previously testified that she was detained when
    he turned on his overhead red and blue lights, and not free to leave. RR II 12.
    Regardless, Officer Sakamoto's contradictory statements are irrelevant because the
    analysis proceeds from the perspective of a reasonable person in Appellant's shoes.
    When a police car pulls behind you in the middle of the night and activates his
    overhead red and blue lights, no reasonable person would have felt free to leave
    after Officer Sakamoto exercised his authority.
    8
    In fact, Appellant would have committed a criminal offense if she had not
    obeyed Officer Sakamoto's show of authority. See TEX. TRANS. CODE §542.501
    ("Obedience Required to Police Officers and to School Crossing Guards").
    According to this statute, "a person may not willfully fail or refuse to comply with
    a lawful order or direction of a police officer." 
    Id. Violating this
    statute gives
    officers authority to stop, investigate, and arrest.       See TEX. TRANS. CODE
    §§543.001, 543.004 (authorizing custodial arrest for traffic offenses other than
    speeding or open container); see also TEX. CODE CRIM. PROC. ART. 14.01
    (authorizing arrest for offense within an officer's presence); see also Guinn v.
    State, 
    1998 WL 418034
    , at         *1   (Tex. App.-Houston[1 st Dist.] 1998, no pet.)
    (holding that a violation of TEX. TRANS. CODE §542.501 gives officers authority to
    detain or arrest the violator).
    Significantly, the test proceeds from the perspective of a reasonable,
    innocent person. State v. Garcia-Cantu, 
    253 S.W.3d 236
    , 243 (Tex. Crim. App.
    2008). No innocent person would leave in this situation, as that action would
    provide the police with cause to arrest that person pursuant to TEx. TRANS. CODE
    §542.501.    Thus, a reasonable, innocent person had but one choice: obey the
    officer's order.
    Crain v. State is squarely on point. See 
    315 S.W.3d 43
    (Tex. Crim. App.
    2010). In that case, the officer testified that upon observing the defendant, he
    9
    activated his headlights and called out to him: "Come over here and talk to me." 
    Id. at 51.
    The defendant complied by taking a few steps and then stopping. 
    Id. The officer
    further testified that he would have let the man go if he had not complied
    with his command, as he had not observed anything that could be construed as
    illegal activity.   I d. at 47.   Upon approaching the man, the officer smelled
    marijuana and an investigative detention ensued. 
    Id. Emphasizing the
    mandatory
    nature of the officer's command, the Court of Criminal Appeals held that an
    investigative detention, as opposed to a consensual encounter, had occurred. 
    Id. at 51-52.
    Judge Cochran's analysis of the difference between a "request" and an
    "order" is particularly applicable here:
    Under the Fourth Amendment, there is a world of difference between
    an officer's request and his order. A request signifies a consensual
    encounter beyond the purview of the Fourth Amendment; a command,
    if heeded, usually denotes a Fourth Amendment detention. A request
    is a question that asks for an answer; an order is a command which
    requires obedience.
    
    Crain, 315 S.W.3d at 54-55
    (Tex. Crim. App. 2010) (Cochran,
    J., concurring) (citations omitted)
    Like the officer in Crain, Officer Sakamoto issued an order when he used red and
    blue overhead lights to detain Appellant. Also, as in Crain, the officer's headlights
    were activated at night. In this climate, Officer Sakamoto's conduct cannot be
    construed as a mere request that a reasonable person would have felt free to ignore.
    10
    Instead, it constituted an order requiring obedience.      Appellant did what any
    reasonable person would have done when the police pull behind you and activate
    their overhead red and blue lights: she stayed put, and rolled down her window to
    answer Officer Sakamoto's questions.
    Prior to Officer Sakamoto's contact with Appellant, he did not observe
    Appellant commit a traffic violation and he did not testify about any other
    information that indicated that Appellant was engaged in criminal activity. As a
    result, there was not reasonable suspicion to support the investigative detention.
    Because Appellant was detained without reasonable suspicion of illegal
    activity, this Court should reverse the trial court's order denying her motion to
    suppress evidence.
    PRAYER
    WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
    sustain her point of error, reverse the trial court's judgment of conviction, direct
    the trial court to grant Appellant's motion to suppress all evidence derived from the
    unlawful stop, and remand for a new trial.
    11
    Respectfully submitted,
    Austin, Texas 78701
    Phone: (512) 371-3477
    Fax: (512) 236-9287
    State Bar No. 90001888
    ATTORNEY FOR APPELLANT
    CERTIFICATE OF SERVICE
    This is to certify that the above Appellant's brief has been served on the
    State's attorney by hand-delivering a copy to David A. Escamilla, Travis County
    CERTIFICATE OF CO:M:PLIANCE
    This is to certify that the above Appellant's brief complies with the length
    requirements of TEX. R. APP. PROC. 9.4(i)(2) because it contains 3,305 words.
    12