State v. Andrew Bernwanger ( 2015 )

ACCEPTED
13-15-00198-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
5/14/2015 8:28:12 AM
DORIAN RAMIREZ
CLERK
#13-15-00198-CR
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
Thirteenth Court of Appeals, Corpus 5/14/2015
Christi 8:28:12 AM
& Edinburg
DORIAN E. RAMIREZ
Clerk
THE STATE OF TEXAS,
Appellant
v.
ANDREW BERNWANGER,
Appellee
ON STATE’S APPEAL FROM THE COUNTY COURT AT LAW NO. 1
OF NUECES COUNTY, CAUSE #12-CR-0438-1
STATE’S BRIEF
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: The State of Texas, District Attorney for the 105th Judicial
District, represented by
Appellate counsel:
A. Cliff Gordon, Asst. Dist. Atty.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Trial and appellate counsel:
Mark Skurka, District Attorney
Dulce Salazar Valle, Asst. Dist. Atty.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Appellee: Andrew Bernwanger, represented by
Trial and Appellate Counsel:
Robert C. Pate Jr.
321 Flores
San Antonio, TX 784204
Initial Trial Counsel:
Les Cassidy
814 Leopard St.
Corpus Christi, TX 78401
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES ................................................................................... v
STATEMENT OF THE CASE ............................................................................. vii
ISSUE PRESENTED ............................................................................................ viii
In connection with the traffic stop leading to his DWI arrest,
Defendant Bernwanger received two traffic citations. Upon
acquittal on those traffic violations, Bernwanger moved to
suppress on the ground that acquittal foreclosed the State
from "relitigating" reasonable suspicion for the traffic stop.
Did the trial court properly grant Bernwanger’s motion to
suppress on the sole ground of collateral estoppel? ......................... viii
STATEMENT OF FACTS .......................................................................................1
SUMMARY OF THE ARGUMENT ......................................................................2
ARGUMENT ............................................................................................................4
The trial court erred when it granted Bernwanger’s motion to
suppress based on the defensive issue of collateral estoppel ..............4
A. Legal Standards ....................................................................................4
1. Suppression Rulings .....................................................................4
2. Reasonable suspicion for a traffic stop........................................5
3. Collateral Estoppel .........................................................................7
B. Bernwanger did not meet his burden to show that the State
was collaterally estopped to litigate reasonable suspicion
to stop him ...........................................................................................10
1. Bernwanger failed to provide a record of the municipal
court trial .......................................................................................10
iii
2. The municipal court proceeding determined different
facts and imposed a higher burden of proof on the State
than the suppression motion ......................................................11
3. Bernwanger failed to show that reasonable suspicion
would be lacking absent the traffic infractions ........................11
PRAYER ..................................................................................................................13
CERTIFICATE OF COMPLIANCE ....................................................................13
CERTIFICATE OF SERVICE ...............................................................................14
iv
INDEX OF AUTHORITIES
Cases
Ashe v. Swenson, 397 U.S. 436 (1970) ..................................................................8
Berkemer v. McCarty, 468 U.S. 420 (1984) ...........................................................5
Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995).............................6
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) .................5, 12
Dowling v. United States, 493 U.S. 342 (1990) ....................................... 9, 10, 11
Drago v. State, 553 S.W.2d 375 (Tex. Crim. App. 1977) ...............................6, 11
Garcia v. State, No. 13-10-00626-CR, 2012 WL 914953 (Tex. App.—
Corpus Christi Mar. 15, 2012, no pet.) .......................................................7
Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) ................................5
Griffin v. State, 765 S.W.2d 422 (Tex. Crim. App. 1989) ....................................7
Guajardo v. State, 109 S.W.3d 456 (Tex. Crim. App. 2003) .........................8, 10
McVickers v. State, 874 S.W.2d 682 (Tex. Crim. App. 1993) .............................5
Michigan v. DeFillippo, 443 U.S. 31 (1979)..........................................................7
Power v. State, No. 13-05-693-CR, 2006 WL 2516525 (Tex. App.—
Corpus Christi July 27, 2006, no pet.) ........................................................6
Scardino v. State, 294 S.W.3d 401 (Tex. App.—Corpus Christi 2009, no
pet.) .................................................................................................................5
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ......................................4
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) .................................4
Texas Dep’t of Pub. Safety v. Celedon, No. 13-01-557-CV, 2002 WL
34230967, (Tex. App.—Corpus Christi Aug. 29, 2002, no pet.) ..............6
v
Valencia v. State, 820 S.W.2d 397 (Tex.App.—Houston [14th Dist.]
1991, pet. ref’d) ..............................................................................................6
York v. State, 342 S.W.3d 528 (Tex. Crim. App. 2011) ........................ 7, 8, 9, 11
vi
STATEMENT OF THE CASE
Nature of the Case On January 24, 2012, the State, by Information,
charged Defendant Bernwanger with Driving
While Intoxicated. CR 5.
Course of Proceedings On February 14, 2014, Bernwanger filed a
boilerplate motion to suppress. CR 41. On
March 9, 2015, the trial court called the case for
a pretrial hearing and stated that it only had
time to hear the collateral estoppel issue orally
urged by Bernwanger in support of
suppression. RR 4-6.
Trial Court’s Disposition On March 9, 2015, the trial court signed Trial
Court’s Order Granting the Claim of Collateral
Estoppel. CR 70.
vii
ISSUE PRESENTED
In connection with the traffic stop leading to his DWI arrest, Defendant
Bernwanger received two traffic citations. Upon acquittal on those traffic
violations, Bernwanger moved to suppress on the ground that acquittal
foreclosed the State from “relitigating” reasonable suspicion for the traffic
stop. Did the trial court properly grant Bernwanger’s motion to suppress
on the sole ground of collateral estoppel?
viii
STATEMENT OF FACTS
On January 24, 2012, the State, by Information, charged Defendant
Bernwanger with Driving While Intoxicated. CR 5. The Magistrate’s
Commitment Order shows that, in addition to DWI, Bernwanger was also
arrested for “failure to stop/yield sign” and “drove wrong way.” CR 8.
On February 14, 2014, Bernwanger filed a boilerplate motion to
suppress, to which the State objected. CR 41, 44. On March 9, 2015, the
trial court called the case for a pretrial hearing and stated that it only had
time to hear the collateral estoppel issue orally urged by Bernwanger in
support of suppression. RR 4-6.
Specifically, Bernwanger argued that, because he was acquitted of the
traffic offenses1 supporting reasonable suspicion for the traffic stop,
collateral estoppel precluded the State from litigating reasonable suspicion
for the stop. RR 4. While conceding he lacked the record of the traffic trial,
Bernwanger argued that any “bad driving facts” beyond the infractions
1
Bernwanger did not offer, and the Court did not admit, any municipal court
judgments in evidence. However, the State did not contest in the trial court that
Bernwanger had been acquitted of the traffic offenses relating to the DWI stop. Nor will
the State contest such acquittals on appeal. The acquittals are irrelevant to reasonable
suspicion.
1
charged were discussed at that trial. RR 9. The State argued that a
judgment that Bernwanger was not proven beyond a reasonable doubt to
have committed the traffic violations charged did not collaterally estop the
State from showing the lesser standard of reasonable suspicion based on
the totality of the circumstances, which was not limited to the traffic
violations. RR 14-16.
On March 9, 2015, the trial court signed Trial Court’s Order Granting
the Claim of Collateral Estoppel. CR 70.
SUMMARY OF THE ARGUMENT
Bernwanger introduced no evidence to support of his claim of
collateral estoppel. The only “evidence” before the trial court was the
State’s concession that Bernwanger was acquitted of traffic citations he
received in connection with his DWI arrest. The trial judge granted
Bernwanger’s motion to suppress upon concluding that those acquittals
collaterally estopped the State from litigating reasonable suspicion to
detain him in this DWI prosecution. This legal conclusion is erroneous,
2
conflicts with decisions of the Court of Criminal Appeals and the United
States Supreme Court, and should be reversed.
Acquittal establishes only that the State failed to prove, beyond a
reasonable doubt, that the charged violations actually occurred. No
finding has addressed reasonable suspicion, by a preponderance of the
evidence, of the cited infractions. Of equal import, the traffic citations, by
themselves, represent only the subjective beliefs of the officer, which are
irrelevant to a court’s determination of reasonable suspicion.
In sum, Bernwanger fail to prove a prior finding that could estop the
State from litigating reasonable suspicion to stop him. He also failed to
prove that the facts determined by acquittal encompassed all of the
articulable facts that could have supported reasonable suspicion for the
traffic stop. The trial court erred when it granted Bernwanger’s motion to
suppress on the sole ground of collateral estoppel.
3
ARGUMENT
The trial court erred when it granted Bernwanger’s motion to suppress
based on the defensive issue of collateral estoppel.
A. Legal Standards
1. Suppression Rulings
In reviewing a trial court’s ruling on a motion to suppress, appellate
courts employ a bifurcated standard, giving almost total deference to a trial
court’s determination of historic facts and mixed questions of law and fact
that rely upon the credibility of a witness, but applying a de novo standard
of review to pure questions of law and mixed questions that do not depend
on credibility determinations. E.g., State v. Kerwick, 393 S.W.3d 270, 273
(Tex. Crim. App. 2013). When a trial court makes explicit fact findings, the
appellate court determines whether the evidence (viewed in the light most
favorable to the trial court’s ruling) supports these fact findings. State v.
Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). “Whether the facts
known to the officer at the time of the detention amount to reasonable
suspicion is a mixed question of law that is reviewed de novo on appeal.”
Kerwick, 393 S.W.3d at 273.
4
2. Reasonable suspicion for a traffic stop2
A police officer has reasonable suspicion for a detention if he has
specific, articulable facts that, when combined with rational inferences
from those facts, would lead the officer to reasonably conclude that the
person detained is, has been, or soon will be engaged in criminal activity.
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This
standard is an objective one that disregards the subjective intent of the
arresting officer and looks, instead, to whether there was an objectively
justifiable basis for the detention. Ibid.
It is generally accepted that law enforcement officers may lawfully
stop a motorist who commits a traffic violation. McVickers v. State, 874
S.W.2d 682, 664 (Tex. Crim. App. 1993), superseded by statute on other
grounds as stated in Granados v. State, 85 S.W.3d 217, 227-30 (Tex. Crim. App.
2002); see also Power v. State, No. 13-05-693-CR, 2006 WL 2516525, at *2 (Tex.
2
“A warrantless automobile stop is a Fourth Amendment seizure analogous to a
temporary detention, and it must be justified by reasonable suspicion.” Scardino v.
State, 294 S.W.3d 401, 405 (Tex. App.—Corpus Christi 2009, no pet.) (citing Berkemer v.
McCarty, 468 U.S. 420, 439 (1984)).
5
App.—Corpus Christi July 27, 2006, no pet.) (citing McVickers; not
designated for publication). In stopping vehicles for an investigative
detention based on a traffic violation, the State need not prove that the
detainee actually committed a traffic violation. Drago v. State, 553 S.W.2d
375, 377 (Tex. Crim. App. 1977). Reasonable suspicion to believe that a
violation occurred or is occurring will suffice. Ibid.; Valencia v. State, 820
S.W.2d 397, 400 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d); see also
Texas Dep’t of Pub. Safety v. Celedon, No. 13-01-557-CV, 2002 WL 34230967,
at *3 (Tex. App.—Corpus Christi Aug. 29, 2002, no pet.) (citing Valencia; not
designated for publication). Reasonable suspicion for a traffic stop may
exist in the absence of a suspected traffic violation. Crittenden v. State, 899
S.W.2d 668, 672 n.5 (Tex. Crim. App. 1995) (“An officer with reasonable
suspicion or probable cause to suspect criminal activity is afoot does not
need the additional justification of a traffic violation to make a lawful
investigative detention.”).
In a motion to suppress setting, the propriety of an arrest or
detention need not be proven beyond a reasonable doubt. The State’s
6
standard of proof in establishing reasonable suspicion is the one that
applies to most constitutional suppression issues: preponderance of the
evidence. York v. State, 342 S.W.3d 528, 543 (Tex. Crim. App. 2011) (citing
Griffin v. State, 765 S.W.2d 422, 429–30 (Tex. Crim. App. 1989) (applying
preponderance of the evidence standard of proof)); see also Garcia v. State,
No. 13-10-00626-CR, 2012 WL 914953, at *2 n.2 (Tex. App.—Corpus Christi
Mar. 15, 2012, no pet.) (citing York; not designated for publication).
Reasonable suspicion to detain or probable cause to arrest for an
offense remains unaffected by a subsequent acquittal on that offense—
The validity of the arrest does not depend on whether the
suspect actually committed a crime; the mere fact that the
suspect is later acquitted of the offense for which he is arrested
is irrelevant to the validity of the arrest. We have made clear
that the kinds and degree of proof and the procedural
requirements necessary for a conviction are not prerequisites to
a valid arrest.
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).
3. Collateral estoppel
In the criminal context, collateral estoppel has two potential bases.
The first, so-called constitutional collateral estoppel, applies collateral
7
estoppel to end a prosecution that would subject the accused to Double
Jeopardy.3 Ashe v. Swenson, 397 U.S. 436, 446-47 (1970). The second, often
referred to simply as issue preclusion, prevents the relitigation of a finding
previously determined against a party.4
Collateral estoppel deals only with specific factual determinations,
not legal claims or legal conclusions. Guajardo v. State, 109 S.W.3d 456, 460
(Tex. Crim. App. 2003). The burden is on the defendant to demonstrate, by
examination of the record of the first proceeding, that the factual issue he
seeks to foreclose was actually decided in the first proceeding. Ibid.
Without the record from the first proceeding, a collateral estoppel defense
must fail. See id. at 457 (“Without the complete record, no reviewing court
can determine exactly what specific facts the first factfinder actually found.
3
Constitutional collateral estoppel is not at issue here, where Bernwanger has
made no such claim, and the suppression matters involve no ultimate issue of fact in
this DWI case. York, 342 S.W.3d at 552 (“[W]here a defendant seeks to bar the
relitigation of suppression issues on the basis of double jeopardy . . . the State is not
barred by the Double Jeopardy Clause from relitigating a suppression issue that was
not an ultimate fact in the first prosecution and was not an ultimate fact in the second
prosecution.”).
4
In Texas, it is questionable whether collateral estoppel exists outside of the
Double Jeopardy context. York, at 552 n.155. The State did not make that argument
below, and does not make that argument here.
8
Without that complete record, no reviewing court can address whether
collateral estoppel might apply in a particular context . . . .”).
Collateral estoppel is inapplicable when a proceeding subsequent to
acquittal is governed by a lower standard of proof—
[W]e have held that an acquittal in a criminal case does not
preclude the Government from relitigating an issue when it is
presented in a subsequent action governed by a lower standard
of proof.
Dowling v. United States, 493 U.S. 342, 349 (1990).
In Dowling v. United States, the Supreme Court explained that
collateral estoppel does not bar relitigation of an issue resolved
by a prior acquittal when, in the subsequent proceeding, the
issue is governed by a lower standard of proof. This holding
defeats any attempt in the present case to use the detention
issue’s elemental status in the first prosecution as a basis for
collateral estoppel. The State’s failure to prove the validity of
appellant’s arrest or detention beyond a reasonable doubt (as
an element of the failure-to-identify offense) does not result in a
collateral-estoppel bar to determining the validity of that arrest
or detention by a preponderance of the evidence in a
subsequent suppression hearing.
York, 342 S.W.3d at 543-44 (footnotes omitted).
9
B. Bernwanger did not meet his burden to show that the State was
collaterally estopped to litigate reasonable suspicion to stop him.
For three reasons, Bernwanger failed to demonstrate that the factual
issue of reasonable suspicion to stop him was actually decided in the
municipal court.
1. Bernwanger failed to provide a record of the municipal
court trial.
Absent a record of the traffic court proceedings, the trial court could
not have determined that the jury found that reasonable suspicion to stop
Bernwanger was lacking. Thus, the trial court had no basis upon which to
determine that collateral estoppel was applicable.5 Guajardo, 109 S.W.3d at
457, 460; see also Dowling, 493 U.S. at 352 (“There are any number of
possible explanations for the jury’s acquittal verdict at Dowling’s first
trial.”).
5
To be clear, none of the trial court’s findings are supported by any evidence
because Bernwanger introduced none. Again, however, the State concedes that a
municipal court jury acquitted Bernwanger of the traffic citations he received in
connection with his DWI arrest.
10
2. The municipal court proceeding determined different
facts and imposed a higher burden of proof on the State
than the suppression motion.
Acquittal means, at most, that the State failed to prove that the
defendant actually committed the charged offense beyond a reasonable
doubt. Dowling, 493 U.S. at 349 (“The acquittal did not prove that the
defendant is innocent; it merely proves the existence of a reasonable doubt
as to his guilt . . . .”; quotation omitted). That failure of proof provides no
guidance in a motion to suppress that depends on—not the actual
commission of an offense beyond a reasonable doubt—but reasonable
suspicion of criminal activity by a preponderance of the evidence. Drago,
553 S.W.2d at 377; York, 342 S.W.3d at 543-44. These differences dictate that
Bernwanger’s collateral estoppel claim must fail. Dowling, at 349; York, at
543-44.
3. Bernwanger failed to show that reasonable suspicion
would be lacking absent the traffic infractions.
Bernwanger understandably seized upon the traffic citations;
reasonable suspicion for a traffic stop often hinges on poor driving.
However, the violations cited reflect the charging officer’s subjective belief
11
as to what offenses he deems, for whatever reasons, worth filing. The filed
charges shed no light on any other possible violations, suspected or not,
that may give rise to reasonable suspicion to stop. That is because
reasonable suspicion depends on the facts articulated by the detaining
officers viewed through the objective prism of the reasonable officer.
Derichsweiler, 348 S.W.3d at 914.
Thus, trying to negate the charged traffic violations was a good place
to start. However, collateral estoppel is a defensive issue that, when
applicable, may negate specific facts that the State presents to show
reasonable suspicion. By going forward on his defense of collateral
estoppel without the benefit of the State having presented its case for
reasonable suspicion, Bernwanger had to prove that the facts found by the
first jury included all possible facts that the detaining officer might have
articulated in support of reasonable suspicion.6 It is easy to see why
6
Bernwanger argued that other “bad driving facts” came up during the municipal
court proceedings but presented no proof to back up that claim, much less that the jury
made relevant findings on those facts. RR 9.
12
Bernwanger failed to meet his burden and, also, why the trial court erred in
granting his motion to suppress.
PRAYER
For these reasons, the State requests that the Court reverse the trial
court’s order granting Bernwanger’s motion to suppress and grant the
State all other proper relief.
Respectfully Submitted,
/s/ A. Cliff Gordon
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
CERTIFICATE OF COMPLIANCE
According to the word count of the computer program used to
prepare this document, it contains 3,222 words.
13
CERTIFICATE OF SERVICE
On May 14, 2015, a true copy of the foregoing was served via eServe
on the following:
Mr. RC Pate
The RC Pate Law Firm
321 Flores
San Antonio, TX 784204
Appellate Counsel for Appellee
/s/ A. Cliff Gordon_______________
A. Cliff Gordon
14