State v. Moore, Jessica Ruth

PD-1517-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/24/2014 6:59:45 PM
Accepted 12/30/2014 9:14:20 AM
ABEL ACOSTA
COURT OF CRIMINAL APPEALS CLERK
PD-1517-14
State of Texas, Appellant,
v.
Jessica Ruth Moore, Appellee.
On Discretionary Review from
No. 05-14-00123-CR
Fifth Court of Appeals, Dallas
On Appeal from No. MB13-50157
County Criminal Court No. 2, Dallas County
Petition for Discretionary Review
Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
December 30, 2014
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellee
ORAL ARGUMENT NOT REQUESTED
I. Identity of Parties, Counsel, and Judges
Jessica Ruth Moore, Appellee.
Michael Mowla, Attorney for Appellee on Appeal and Discretionary Review,
445 E. FM 1382 #3-718, Cedar Hill, Texas 75104, phone 972-795-2401, fax 972-
692-6636, email michael@mowlalaw.com.
Tim Hartley, Attorney for Appellee at Trial, 1010 West Ralph Hall Parkway,
Suite 100, Rockwall, Texas 75032, phone 972-754-4844, fax 972-722-4888, email
tlhartleylaw@aol.com.
Craig Watkins, Dallas County District Attorney, Attorney for State of Texas,
133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone 214-653-3600,
fax 214-653-3643.
Michael Casillas, Dallas County Assistant District Attorney, Attorney for
State of Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone
214-653-3600, fax 214-653-3643, email michael.casillas@dallascounty.org.
Lisa Smith, Dallas County Assistant District Attorney, Attorney for State of
Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone 214-
653-3600, fax 214-653-3643, lisa.smith@dallascounty.org.
Marissa Mouton, Dallas County Assistant District Attorney, Attorney for
State of Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone
214-653-3600, fax 214-653-3643.
Hon. Julia Hayes, Presiding Judge of County Criminal Court No. 2, 133 N.
Riverfront Blvd. 3rd Floor, Dallas, Texas 75207, phone 214-653-5615.
Page 2 of 25
II. Table of Contents
I.  Identity of Parties, Counsel, and Judges ..........................................................2
II.  Table of Contents .............................................................................................3
III.  Table of Authorities .........................................................................................5
IV.  Appendix Index ...............................................................................................7
V.  Statement Regarding Oral Argument ..............................................................8
VI.  Statement of the Case and Procedural History ................................................9
VII.  Questions or Grounds for Review .................................................................11
VIII.  Argument .......................................................................................................12
1.  Question or Ground for Review One: The Court of Appeals
erred when it overruled Appellee’s argument that Stephens did
not approach the boat to conduct a water safety inspection
because although Texas Parks and Wildlife Code § 31.124
allows law enforcement to stop and board a boat without
probable cause or reasonable suspicion for reasons enumerated
in Chapter 31 of the Texas Parks and Wildlife Code, the
probable cause affidavit provided that Stephens approached the
boat not to conduct a water safety inspection, but because the
boat had its harbor lights on (which was judicially admitted by
the State), and Appellee’s boat having its harbor lights on is not
a violation of Chapter 31. ..............................................................................12
i.  Background .........................................................................................12
ii.  Opinion of the Court of Appeals .........................................................13
iii.  Texas Parks and Wildlife Code § 31.124 allows law
enforcement to stop and board a boat without probable
cause or reasonable suspicion for reasons enumerated in
Chapter 31 of the Texas Parks and Wildlife Code, but the
harbor lights on Appellee’s boat being turned on is not a
violation of Chapter 31. .......................................................................14
2.  Question or Ground for Review Two: The Court of Appeals
erred when it reversed the trial court’s granting of Appellee’s
motion to suppress because when considering the combined
logical force of the facts contained in the search warrant
affidavit, the affidavit does not contain sufficient facts or a
Page 3 of 25
substantial basis to provide the magistrate probable cause to
issue the search warrant. ................................................................................18
i.  Background .........................................................................................18
ii.  When considering the combined logical force of the facts
contained in the search warrant affidavit, the affidavit
does not contain sufficient facts or a substantial basis to
provide the magistrate probable cause to issue the search
warrant. ................................................................................................19
IX.  Conclusion and Prayer ...................................................................................23
X.  Certificate of Service .....................................................................................24
XI.  Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................25
Page 4 of 25
III. Table of Authorities
Cases
Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005).......................................12
Campos v. State, 623 S.W.2d 657 (Tex. Crim. App. 1981) ....................................20
Farhat v. State, 337 S.W.3d 302 (Tex. App. Fort Worth 2011) ..............................22
Flores v. State, 319 S.W.3d 697 (Tex. Crim. App. 2010) .......................................19
Foley v. State, 327 S.W.3d 907 (Tex. App. Corpus Christi 2010, pet.
ref.) .................................................................................................................21
Heien v. North Carolina, ___ U.S. ____, No. 13-604, 2014 U.S.
LEXIS 8306 (December 15, 2014) ................................................................15
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562 (Tex.
2001) ..............................................................................................................13
Illinois v. Gates, 462 U.S. 213 (1983) .............................................................. 19, 21
Kelly v. State, 413 S.W.3d 164 (Tex. App. Beaumont 2012, no pet.) .....................20
Nichols v. State, 877 S.W.2d 494 (Tex. App. Fort Worth 1994, pet.
ref.) .................................................................................................................19
Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007) ...................................20
Schenekl v. State, 30 S.W.3d 412 (Tex. Crim. App. 2000) .............................. 13, 16
State v. Davis, No. 03-06-00490-CR, 2007 Tex. App. LEXIS 2693
(Tex. App. Austin, April 6, 2007) (Memorandum Opinion).........................22
State v. Jordan, 342 S.W.3d 565 (Tex. Crim. App. 2011) ......................................19
State v. Luxon, 230 S.W.3d 440 (Tex. App. Eastland 2007, no pet.) ......................13
State v. Moore, 05-14-00123-CR, 2014 Tex. App. LEXIS 11979 (Tex.
App. Dallas, October 30, 2014) (Unpublished opinion) .............. 9, 10, 13, 14
Statutes
Tex. Code Crim. Proc. Art. 44.01 (2014) ................................................................10
Tex. Code. Crim. Proc Art. 18.01 (2013) ................................................................19
Tex. Parks & Wild. Code § 31.028 (2013) ..............................................................16
Tex. Parks & Wild. Code § 31.064 (2013) ....................................................... 14, 15
Tex. Parks & Wild. Code § 31.124 (2013) ................................................. 13, 15, 17
Page 5 of 25
Tex. Pen. Code § 49.04 (2014) ..................................................................................9
Tex. Pen. Code § 49.06 (2013) ..................................................................................9
Rules
Tex. Rule App. Proc. 68.11 (2014) ..........................................................................24
Tex. Rule App. Proc. 68.4 (2014) ....................................................................... 8, 11
Tex. Rule App. Proc. 9.4 (2014) ..............................................................................25
Constitutional Provisions
Tex. Const. Art. 1, § 9 ..............................................................................................19
U.S. Const. Amend. IV ............................................................................................19
Page 6 of 25
IV. Appendix Index
Appendix 1: Judgment and Opinion of the Court of Appeals in State v. Moore, 05-
14-00123-CR, 2014 Tex. App. LEXIS 11979 (Tex. App. Dallas, October 30, 2014)
(Unpublished opinion).
Page 7 of 25
V. Statement Regarding Oral Argument
Appellee does not request oral argument. See Tex. Rule App. Proc. 68.4(c)
(2014). Appellee believes that the facts and legal arguments are adequately
presented in this petition. However, should this Court determine that its decisional
process will be significantly aided by oral argument, Appellee will be honored to
present oral argument.
Page 8 of 25
To The Honorable Judges of the Court of Criminal Appeals:
Appellee Jessica Ruth Moore respectfully submits this petition for
discretionary review:
VI. Statement of the Case and Procedural History
This petition for discretionary review requests that this Court review the
judgment and opinion of the Fifth Court of Appeals in State v. Moore, 05-14-
00123-CR, 2014 Tex. App. LEXIS 11979 (Tex. App. Dallas, October 30, 2014)
(Unpublished opinion) (See Appendix 1). This case arose from the State’s appeal
of the trial court’s granting of a motion to suppress evidence filed by Appellee in
the County Criminal Court Number 2 of Dallas County, Texas. (CR, 24-25).1 On
August 9, 2013, the State alleged in an information that on or about June 27, 2013,
in Dallas County, Texas, Appellee operated a motor vehicle in a public place while
intoxicated and committed Driving While Intoxicated in violation of Texas Penal
Code § 49.04. (CR, 20). See Tex. Pen. Code § 49.04 (2014). However, it appears
that she was charged for committing Boating While Intoxicated in violation of
Texas Penal Code § 49.06. (CR, 11-13); See Tex. Pen. Code § 49.06 (2013).
Appellee filed a motion to suppress the blood warrant. (CR, 21-22). On
January 29, 2014, a hearing was had on Appellee’s motion. (RR). After
1
The Record on Appeal consists of the Clerk’s Record, which is one volume, and the Reporter’s Record, which is
also one volume. The Clerk’s Record is cited as “CR” followed by the page number, and the Reporter’s Record is
cited as “RR” followed by the page number.
Page 9 of 25
considering arguments of counsel and the affidavit for the search warrant, the trial
court granted Appellee’s motion. (CR, 24-25).
On February 3, 2014, the State filed a timely notice of appeal. (CR, 7-8);
See Tex. Code Crim. Proc. Art. 44.01 (2014). On October 30, 2014, the Fifth Court
of Appeals reversed and remanded the order of the trial court that granted
Appellee’s motion to suppress. State v. Moore, 05-14-00123-CR (See Appendix
1). This petition for discretionary review follows.
Page 10 of 25
VII. Questions or Grounds for Review
Question or Ground for Review One: The Court of Appeals erred when it
overruled Appellee’s argument that Stephens did not approach the boat to conduct
a water safety inspection because although Texas Parks and Wildlife Code §
31.124 allows law enforcement to stop and board a boat without probable cause or
reasonable suspicion for reasons enumerated in Chapter 31 of the Texas Parks and
Wildlife Code, the probable cause affidavit provided that Stephens approached the
boat not to conduct a water safety inspection, but because the boat had its harbor
lights on (which was judicially admitted by the State), and Appellee’s boat having
its harbor lights on is not a violation of Chapter 31.
Question or Ground for Review Two: The Court of Appeals erred when it
reversed the trial court’s granting of Appellee’s motion to suppress because when
considering the combined logical force of the facts contained in the search warrant
affidavit, the affidavit does not contain sufficient facts or a substantial basis to
provide the magistrate probable cause to issue the search warrant.
The relevant pages of the record are: Clerk’s Record 11-13, 20-20; and the
Reporter’s Record in its entirety. See Tex. Rule App. Proc. 68.4(f) (2014)
Page 11 of 25
VIII. Argument
1. Question or Ground for Review One: The Court of Appeals erred when
it overruled Appellee’s argument that Stephens did not approach the
boat to conduct a water safety inspection because although Texas Parks
and Wildlife Code § 31.124 allows law enforcement to stop and board a
boat without probable cause or reasonable suspicion for reasons
enumerated in Chapter 31 of the Texas Parks and Wildlife Code, the
probable cause affidavit provided that Stephens approached the boat
not to conduct a water safety inspection, but because the boat had its
harbor lights on (which was judicially admitted by the State), and
Appellee’s boat having its harbor lights on is not a violation of Chapter
31.
i. Background
In the affidavit supporting the search warrant, Officer Stephens of the Texas
Parks and Wildlife Department alleges that at approximately 10:00 p.m. on or
about June 27, 2013, he was conducting water safety inspections on Lake Ray
Hubbard. (RR, SX-1). Stephens noticed that the boat on which Appellee was had
its “harbor lights” on. (RR, SX-1) (emphasis added). This, according to the
State, is a violation of one of the codes for the “Texas Parks and Wildlife Code.”
(RR, 7). Thus, the fact that Stephens approached Appellee due to “a violation of
one of the codes for the ‘Texas Parks and Wildlife Code’” was a judicial
admission by the State. See Bryant v. State, 187 S.W.3d 397, 400-401 (Tex. Crim.
App. 2005) (Judicial admissions are formal concessions or stipulations by a party
or counsel that have the effect of withdrawing a fact from issue and dispensing
wholly with the need for proof of the fact.); Holy Cross Church of God in Christ v.
Page 12 of 25
Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (A judicial admission that is clear and
unequivocal has conclusive effect and bars the admitting party from later disputing
the admitted fact.). Thus, the State cannot on appeal claim that Stephens
approached Appellee’s boat merely to conduct a water safety inspection.
In her Brief, Appellee argued that the reason why Stephens approached
Appellee’s boat was not to conduct a water safety inspection, but because the
boat’s harbor lights were on, which again was a fact judicially admitted by the
State. However, nowhere in the affidavit does it state that using one’s harbor lights
is a violation of the “Texas Parks and Wildlife Code.” Thus, the magistrate could
not have drawn an inference from Stephens’s statement in the affidavit that
Stephens had any probable cause or reasonable suspicion to approach and board
the boat.
ii. Opinion of the Court of Appeals
The Court of Appeals rejected Appellee’s argument, holding that “a game
warden... may randomly stop a boat, board it, and conduct a safety inspection.”
Moore, Id. at *6, citing Tex. Parks & Wild. Code § 31.124 (2013); Schenekl v.
State, 30 S.W.3d 412, 413 (Tex. Crim. App. 2000); and State v. Luxon, 230 S.W.3d
440, 449 (Tex. App. Eastland 2007, no pet.). The Court of Appeals concluded
“[H]ere, the game warden’s affidavit stated he stopped appellee’s boat to conduct a
random safety inspection and then describes his observations of Appellee
Page 13 of 25
regarding the fire extinguisher when he sought to inspect it. The game warden’s
stop for a random safety inspection, including the fire extinguisher, is specifically
authorized by Texas law.” Moore, Id. at 6-7.
iii. Texas Parks and Wildlife Code § 31.124 allows law enforcement
to stop and board a boat without probable cause or reasonable
suspicion for reasons enumerated in Chapter 31 of the Texas
Parks and Wildlife Code, but the harbor lights on Appellee’s boat
being turned on is not a violation of Chapter 31.
Texas Parks and Wildlife Code § 31.064 provides that a boat that is not at
dock “must have and exhibit at least one bright light, lantern, or flashlight from
sunset to sunrise in all weather.” Tex. Parks & Wild. Code § 31.064 (2013). And,
a boat “when underway between sunset and sunrise in all weather must have and
exhibit the lights prescribed by the commandant of the Coast Guard for boats of its
class.” Id. See Tex. Parks & Wild. Code § 31.064 (2013). Appellee’s boat had its
“harbor lights” on, and there is no indication this caused Appellee to be in violation
of Section 31.064 of the Texas Parks and Wildlife Code. On page 49 of the
Navigation Rules for both International and Inland waterways (“Navigation
Rules,” attached to Appellee’s Brief), it provides that a power-driven vessel of less
than 12 meters in length may exhibit one all-round white light and sidelight. See
Appendix A to Appellee’s Brief, p. 49.
A review of the section that contains a listing of the “the lights prescribed by
the commandant of the Coast Guard for boats of its class” shows that the light
Page 14 of 25
being turned on was in compliance with § 31.064. A boat like Appellee’s that
clearly was less than 12 meters in length (39.37 feet) requires the use of only one
light, which was the number of lights Appellee was operating.
As a result, Stephens approached Appellee’s boat for a reason not authorized
by Chapter 31. Stephens’s lack of command of the law does not excuse the illegal
search. Even when considering the recent opinion of the Supreme Court of the
United States in Heien v. North Carolina, ___ U.S. ____, No. 13-604, 2014 U.S.
LEXIS 8306 (December 15, 2014), in which the Court held that an officer’s
mistaken understanding of the law may be reasonable under certain circumstances
(Id. at *9), it is unreasonable for Stephens, an enforcement officer employed by
the Texas Parks and Wildlife Department, to not know the provisions of the Texas
Parks and Wildlife Code. This is especially so when Stephens purported to be
conducting water safety inspections. Chapter 31 of the Texas Parks and Wildlife
Code allows an enforcement officer to stop and board any vessel to determine
compliance with applicable provisions Chapter 31. See Tex. Parks & Wild. Code §
31.124 (2013). These include an inspection of: (1) the vessel’s certificate of
number; (2) the vessel’s identification number and validation decal; (3) the
manufacturer’s identification number; (4) lights; (5) sound-producing devices; (6)
life preserving devices; (7) fire extinguishers; (8) flame arrester or backfire trap on
carburetors of gasoline engines, with the exception of outboard motors; (9)
Page 15 of 25
ventilators for bilges of engine and fuel tank compartments, with the exception of
open boats; (10) exhaust water manifold or muffler installed on engine; and (11)
rearview mirror (when persons are being towed). See Tex. Parks & Wild. Code §
31.028 et seq. (2013); See also Schenekl, 30 S.W.3d at 417 (Meyers, J.
concurring). Appellee was not in violation of any provision of Chapter 31, which
is the reason why Stephens claimed he approached Appellee.
Because the seizure of Appellee and the boat was not authorized by Chapter
31, the seizure amounted to a warrantless stop of an automobile. Such a stop is
a Fourth Amendment seizure and must be justified by reasonable
suspicion. Ornelas v. United States, 517 U.S. 690, 693 (1996); Terry v. Ohio, 392
U.S. 1, 13-16 (1968); California v. Acevedo, 500 U.S. 565, 569-570 (1991);
Berkemer v. McCarty, 468 U.S. 420, 439 (1984). The detaining officer must have
specific articulable facts that, taken together with rational inferences from those
facts, lead him to conclude that the person detained is, has been, or soon will be
engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App.
1997). Stephens did not have any specific articulable facts that, taken together
with rational inferences from those facts, lead him to conclude that Appellee is, has
been, or was going to be engaged in criminal activity. Rather, he detained
Appellee based upon a false representation of the law or an unreasonable
misunderstanding of the law.
Page 16 of 25
Therefore, the Court of Appeals erred when it overruled Appellee’s
argument that Stephens did not approach the boat to conduct a water safety
inspection because although Texas Parks and Wildlife Code § 31.124 allows law
enforcement to stop and board a boat without probable cause or reasonable
suspicion for reasons enumerated in Chapter 31 of the Texas Parks and Wildlife
Code, the probable cause affidavit provided that Stephens approached the boat not
to conduct a water safety inspection, but because the boat had its harbor lights on
(which was judicially admitted by the State), and Appellee’s boat having its harbor
lights on is not a violation of Chapter 31. As a result, this Court should grant
discretionary review. See Tex. Rule App. Proc. 66.3(b) (2014).
Page 17 of 25
2. Question or Ground for Review Two: The Court of Appeals erred when
it reversed the trial court’s granting of Appellee’s motion to suppress
because when considering the combined logical force of the facts
contained in the search warrant affidavit, the affidavit does not contain
sufficient facts or a substantial basis to provide the magistrate probable
cause to issue the search warrant.
i. Background
Once Stephens boarded the boat, he claimed that Appellee could not locate
the fire extinguisher, which was located at Appellee’s feet. (RR, SX-1). Stephens
pointed the extinguisher out to Appellee, and Appellee picked it up. (RR, SX-1).
Stephens claims that Appellee removed the safety pin from the extinguisher but
then was unable to place the pin back into the extinguisher. (RR, SX-1). Stephens
claims that he smelled a “strong order of alcohol” coming from Appellee.
Appellee admitted to the officer that she had consumed one alcoholic beverage.
Appellee refused to perform any Standard Field Sobriety Tests (SFSTs). Appellee
was taken into custody. (RR, SX-1).
The affidavit’s observations sheet (which is part of the affidavit) indicates
the following: Appellee’s clothing were “Orderly.” (RR, SX-1). Her balance was
“Normal.” Her speech was “Normal.” (RR, SX-1). Her walking was “Heavy
Footed.” (RR, SX-1). Her eyes were “Red and Watering.” (RR, SX-1). The smell
of alcohol on her breath was “Strong.” (RR, SX-1). Her attitude was
“Cooperative.” See SX-1.
Page 18 of 25
ii. When considering the combined logical force of the facts
contained in the search warrant affidavit, the affidavit does not
contain sufficient facts or a substantial basis to provide the
magistrate probable cause to issue the search warrant.
This case is not a “doubtful” or “marginal” case that should have been
resolved in favor of the State. See Flores v. State, 319 S.W.3d 697, 702 (Tex.
Crim. App. 2010). When a magistrate construes a probable cause affidavit, he is
permitted to “interpret the affidavit in a non-technical, common-sense manner and
may draw reasonable inferences from the facts and circumstances contained within
its four corners.” State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App. 2011).
Under the Fourth Amendment and the Texas Constitution, a magistrate must
find probable cause within the four corners of an affidavit in order to issue a search
warrant. U.S. Const. Amend. IV; Tex. Const. Art. 1, § 9; Tex. Code. Crim. Proc
Art. 18.01(b) (2013); See Nichols v. State, 877 S.W.2d 494, 497 (Tex. App. Fort
Worth 1994, pet. ref.). A reviewing court should apply a “great deference”
standard of review to the magistrate’s determination of probable cause. Jordan, Id.
at 569. “Probable cause exists if, under the totality of the circumstances set forth
in the affidavit before the magistrate, there is a ‘fair probability’ that contraband or
evidence of a crime will be found in a particular place at the time the warrant is
issued.” Id. at 568-569. And, the reviewing court must determine whether “the
magistrate had a substantial basis for concluding that probable cause existed.” Id.
at 569, quoting Illinois v. Gates, 462 U.S. 213, 236 (1983). In employing a
Page 19 of 25
totality-of-the-circumstances analysis, Gates, Id. at 230-237, “[T]he issue is not
whether there are other facts that could have, or even should have, been included in
the affidavit;” instead, a reviewing court should “focus on the combined logical
force of the facts that are in the affidavit...” Rodriguez v. State, 232 S.W.3d 55, 62
(Tex. Crim. App. 2007).
Thus, when considering the “combined logical force of the facts that are in
the affidavit,” Appellee’s clothing were “Orderly,” balance was “Normal,” speech
was “Normal,” attitude was “Cooperative,” walking was “Heavy Footed,” eyes
were “Red and Watering,” and the smell of alcohol on her breath was “Strong.”
(RR, SX-1). These facts tilt the balance towards a lack of probable cause to issue
the warrant.
The cases cited by the Court of Appeals involve facts that heavily tilt the
balance towards probable cause to issue the affidavit, and in fact, are nowhere like
the facts of Appellee’s case. In Campos v. State, 623 S.W.2d 657, 660 (Tex. Crim.
App. 1981), unlike Appellee, the defendant “smelled of beer... spoke thick-
tongued, slurred, was unsteady on his feet, and was in an advanced state of
intoxication.” In Kelly v. State, 413 S.W.3d 164 (Tex. App. Beaumont 2012, no
pet.), the defendant failed to use a blinking signal when he turned through the
intersection, smelled of an alcoholic beverage, showed six out of six clues on the
HGN SFST, had slurred speech, swayed and appeared unsure in his balance, was
Page 20 of 25
talkative and cocky, walked hesitantly and in an unsure manner, and turned in an
unsure manner. Id. at 168-169, 173. And in Foley v. State, 327 S.W.3d 907 (Tex.
App. Corpus Christi 2010, pet. ref.), the defendant crashed his vehicle into an
aluminum barrier on a service road. Id. at 910. After the defendant exited his
vehicle, he could not stand up without hanging onto the door or the side of his
truck. Id. The defendant’s eyes were red and glassy, speech was unintelligible and
slurred, breath smelled strongly of alcohol, and while speaking to the officer, the
defendant was grasping onto the door of the vehicle to stand up straight. Id. Inside
the vehicle, the officer found an open sixteen-ounce can of beer and a quarter-full
bottle of wine. Id. at 911. Finally, the defendant failed to complete two SFSTs.
Id.
Therefore, the facts of the cases cited by the Court of Appeals to support its
opinion are a far cry from the facts of Appellee’s case. Appellee had orderly
clothing, normal balance, normal speech, and cooperated with Stephens. The
magistrate’s probable cause determination in the case before this Court was merely
a ratification of Stephens’s conclusions, which is a violation of the Fourth
Amendment. See Illinois v. Gates, 462 U.S. at 239. The facts of Appellee’s case
tilt the balance towards a finding of a lack of probable cause.
One case in particular where a reviewing court found that there was no
probable cause for a search warrant is Farhat v. State, 337 S.W.3d 302 (Tex. App.
Page 21 of 25
Fort Worth 2011), where in the search warrant affidavit, the officer claimed that
the defendant was driving approximately 30 miles an hour in a 40-mile-per-hour
zone, was weaving from side to side for about a half a mile, and then turned on the
right turn signal and crossed over the left lane into a parking lot. Id. at 304. The
officer saw two pill bottles in the vehicle, and the defendant refused to perform
any SFSTs. Id. There was much more evidence of intoxication in Farhat than in
Appellee’s case, yet the Court of Appeals reversed the trial court’s denial of the
defendant’s motion to suppress. Id. at 309-310.
In fact, Appellee’s case is similar to one where law enforcement claims that
the defendant was engaged in some criminal activity or violation that is not
actually a crime or violation. See, e.g., State v. Davis, No. 03-06-00490-CR, 2007
Tex. App. LEXIS 2693 (Tex. App. Austin, April 6, 2007) (Memorandum Opinion)
(probable cause affidavit alleged that the defendant was stopped because he was
“chirping” and “squealing” the tires of the vehicle, but there is no statute or
ordinance prohibits the “chirping” or “squealing” of a vehicle’s tires). Just as the
officer in Davis claimed the seizure of the defendant was due to alleged criminal
activity that was not actually criminal activity, Stephens’s seizure of Appellee was
based upon a misrepresentation or unreasonable misunderstanding of law that
Stephens is expected to know.
Thus, under the totality of the circumstances set forth in the affidavit before
Page 22 of 25
the magistrate, there was no probable cause to conclude that contraband or
evidence of a crime will be found in the boat or on Appellee’s person, and the
magistrate did not have a substantial basis for concluding that probable cause
existed. And, when considering the combined logical force of the facts contained
in the search warrant affidavit, the affidavit does not contain sufficient facts or a
substantial basis to provide the magistrate probable cause to issue the search
warrant. As a result, this Court should grant discretionary review. See Tex. Rule
App. Proc. 66.3(a) (2014).
IX. Conclusion and Prayer
For the reasons stated in this petition, Appellee respectfully prays that this
Court grant discretionary review, reverse the opinion and judgment of the Court of
Appeals, and affirm the trial court’s granting of the motion to suppress.
Respectfully submitted,
Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
Email: michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellee
Page 23 of 25
/s/ Michael Mowla
By: Michael Mowla
X. Certificate of Service
This certifies that on December 24, 2014, a true and correct copy of this
document was served on Michael Casillas and Lisa Smith of the District
Attorney’s Office, Dallas County, Appellate Division, by email to
michael.casillas@dallascounty.org and to lisa.smith@dallascounty.org, and on Lisa
McMinn, the State Prosecuting Attorney, by email to
Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant State Prosecuting
Attorney, by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc.
9.5 (2014) and Tex. Rule App. Proc. 68.11 (2014)
/s/ Michael Mowla
By: Michael Mowla
Page 24 of 25
XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4
This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 4,500 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 3,018 words in the document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix. This document also
complies with the typeface requirements because it has been prepared in a
proportionally-spaced typeface using 14-point font. See Tex. Rule App. Proc. 9.4
(2014).
/s/ Michael Mowla
By: Michael Mowla
Page 25 of 25
APPENDIX 1
No Shepard’s Signal™
As of: November 13, 2014 3:52 PM EST
State v. Moore
Court of Appeals of Texas, Fifth District, Dallas
October 30, 2014, Opinion Filed
No. 05-14-00123-CR
Reporter
2014 Tex. App. LEXIS 11979
THE STATE OF TEXAS, Appellant v. JESSICA RUTH MOORE, Appellee
Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR
CITATION OF UNPUBLISHED OPINIONS.
Prior History: [*1] On Appeal from the County Criminal Court No. 2, Dallas County, Texas. Trial
Court Cause No. MB13-50157.
Core Terms
probable cause, blood, boat, safety inspection, alcohol, smell, search warrant, trial court, fire
extinguisher, intoxicated, appellee’s, pin, suppression motion, probable, vessel, pet
Case Summary
Overview
HOLDINGS: [1]-The trial court erred by granting defendant’s motion to suppress the results of her
blood test, because the game warden’s stop of her boat for a random safety inspection, including
the fire extinguisher, was specifically authorized by Tex. Parks & Wild. Code Ann. §§ 31.124,
31.067 (2002); [2]-The game warden’s affidavit in support of a search warrant stated he noticed a
package of beer cans on the floor of the boat, he smelled alcohol on defendant, and she was unable
to operate the buckle or replace the pin on the extinguisher; [3]-Probable cause existed for the
issuance of a warrant under Tex. Code Crim. Proc. Ann. art. 18.01, because the magistrate had a
substantial basis for concluding that defendant’s blood sample would uncover evidence of
wrongdoing.
Outcome
Order reversed.
LexisNexis® Headnotes
Constitutional Law > ... > Fundamental Rights > Search & Seizure > Probable Cause
Constitutional Law > ... > Fundamental Rights > Search & Seizure > Warrants
Criminal Law & Procedure > ... > Search Warrants > Affirmations & Oaths > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > Particularity Requirement
2014 Tex. App. LEXIS 11979, *1
Criminal Law & Procedure > ... > Search Warrants > Probable Cause > Totality of Circumstances Test
HN1 Under Tex. Code Crim. Proc. Ann. art. 18.01, a search warrant may be obtained from a
magistrate only after submission of an affidavit setting forth substantial facts establishing probable
cause. Probable cause exists if, under the totality of the circumstances set forth in the affidavit,
there is a fair probability that evidence of a crime will be found in a particular place at the time
the warrant is issued.
Criminal Law & Procedure > Preliminary Proceedings > Pretrial Motions & Procedures > Suppression of
Evidence
Criminal Law & Procedure > ... > Standards of Review > Deferential Review > Credibility & Demeanor
Determinations
Evidence > Types of Evidence > Documentary Evidence > Affidavits
Criminal Law & Procedure > ... > Standards of Review > De Novo Review > Conclusions of Law
Criminal Law & Procedure > ... > Standards of Review > De Novo Review > Motions to Suppress
HN2 The appellate court typically applies a bifurcated standard of review to a trial court’s ruling
on a motion to suppress by giving almost total deference to the trial court’s determinations of fact
and reviewing de novo the trial court’s application of law. However, where a motion to suppress is
based solely on a magistrate’s decision to issue a warrant, there are no credibility determinations to
which the appellate court must defer because the trial court is constrained to the four corners of the
affidavit.
Criminal Law & Procedure > ... > Standards of Review > De Novo Review > General Overview
Criminal Law & Procedure > ... > Standards of Review > Deferential Review > General Overview
Constitutional Law > ... > Fundamental Rights > Search & Seizure > Probable Cause
Constitutional Law > ... > Fundamental Rights > Search & Seizure > Warrants
Criminal Law & Procedure > Search & Seizure > Search Warrants > Issuance by Neutral & Detached
Magistrate
HN3 On review of the magistrate’s issuance of a warrant, the appellate court does not use a de
novo standard of review; the appellate court applies a highly deferential standard to review the
magistrate’s decision to issue a warrant because of the constitutional preference for searches to be
conducted pursuant to a warrant as opposed to a warrantless search. In doubtful or marginal cases,
the magistrate’s determination should prevail. The magistrate may interpret the affidavit in a
non-technical, common-sense manner and may draw reasonable inferences from the facts and
circumstances contained within its four corners. The duty of a reviewing court is simply to ensure
that the magistrate had a substantial basis for concluding that probable cause existed.
Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Investigative Stops
Criminal Law & Procedure > ... > Warrantless Searches > Stop & Frisk > Reasonable Suspicion
Constitutional Law > ... > Case or Controversy > Constitutionality of Legislation > General Overview
Environmental Law > Natural Resources & Public Lands > General Overview
Governments > Public Lands > State Parks
Page 2 of 6
2014 Tex. App. LEXIS 11979, *1
HN4 A game warden may randomly stop a boat, board it, and conduct a safety inspection. Tex.
Parks & Wild. Code Ann. § 31.124 (2002). Section 31.124 is constitutional in its provision that an
officer may stop and board a boat without probable cause or reasonable suspicion to perform a
water safety check. Tex. Parks & Wild. Code Ann. § 31.124(a) authorizes enforcement officers to
stop and board boats, without probable cause or reasonable suspicion, for the purpose of
performing a water safety check. In addition to many other items, a game warden’s safety
inspection may include fire extinguishers. Tex. Parks & Wild. Code Ann. § 31.067 (2002).
Counsel: For Appellants: Michael Casillas, Craig Watkins, Dallas, TX.
For Appellees: Michael Mowla, Cedar Hill, TX.
Judges: Before Justices Bridges, Lang, and Evans. Opinion by Justice Evans.
Opinion by: DAVID EVANS
Opinion
MEMORANDUM OPINION
Opinion by Justice Evans
The State of Texas appeals the trial court’s decision to grant appellee Jessica Moore’s motion to
suppress. In a single issue, the State contends that there were sufficient facts in the search warrant
affidavit to provide the issuing magistrate with probable cause for issuing a search warrant so the
trial court erred when it granted the motion to suppress. Finding merit in the State’s argument, we
reverse the trial court order granting the motion to suppress.
BACKGROUND
On June 27, 2013, Officer Michael Stephens of the Texas Parks and Wildlife Department was
conducting water safety inspections on Lake Ray Hubbard. Officer Stephens summarizes one such
inspection as follows:
On or about 27 June 2013 at approximately 1000, I was conducting water safety inspections
on Lake Ray Hubbard, in Dallas county [sic], when I noticed that a vessel was underway
and had the harbor lights on the vessel. As we approached the vessel, a flashlight was used
to identify the driver of the [*2] vessel who was a white female with blonde hair. There
was a male passenger on board as well. During the inspection I observed a package of
Budweiser lime flavored beer cans in the floor of the vessel and the smell of alcohol on the
defendant. During the water safety inspection, the defendant could not locate the fire
extinguisher which was located at her feet and after I pointed out where the extinguisher
was located, she could not operate the single plastic buckle in the center of the harness.
After she removed the fire extinguisher, she removed the safety pin, and made numerous
attempts to place the pin back on the safety slot on the handle of the extinguisher. She was
unable to place the safety pin back and I ask [sic] for the extinguish [sic] and was able to
put the pin back in place. During the attempts to insert the safety pin, I was able to smell a
Page 3 of 6
2014 Tex. App. LEXIS 11979, *2
strong odor of alcohol from the defendant and was approximately 2 feet away from the
defendant during this evolution. At the completion of the water safety inspection the suspect
admitted to operating the watercraft and I then asked her how much she had to drink, in
which she stated she had one drink. I then asked the suspect if she [*3] would perform the
Standardized Field Sobriety Test, which she refused. At that time the suspect was
transferred to the patrol watercraft and escorted to the Bay view Marina. Once on the shore
and during transport to the county jail I again detected the strong smell of alcohol. I placed
the suspect under arrest and transported the suspect to the Dallas County Detention Center
and was booked for Boating While Intoxicated.1
The affidavit also includes the following observations about appellee by Officer Stephens: (1) her
clothing was ″orderly″; (2) her balance was ″normal″; (3) her speech was ″normal″; (4) her
walking was ″heavy footed″; (5) her eyes were ″red and watering″; (6) the smell of alcohol on her
breath was ″strong″; and (7) her attitude was ″cooperative.″ Appellee also refused to provide a
sample of her breath or blood. Based upon Officer Stephens’s observations and the facts described
above and his experience and training, he arrested appellee for Boating While Intoxicated. Officer
Stephens then utilized the above-described facts to obtain a search warrant for a blood sample. On
June 27, 2013, a magistrate judge determined that probable cause existed for the issuance of a
search [*4] warrant. Appellee was subsequently arrested for the offense of boating while
intoxicated. Appellee filed a motion to suppress the blood test results and the trial court granted the
motion stating that there were not enough facts and circumstances set forth to establish the
existence of probable cause to get a warrant for appellee’s blood. The State then filed a notice of
appeal.
ANALYSIS
In its sole issue, the State contends that the evidence was sufficient to provide the issuing
magistrate with probable cause for issuing a search warrant so the trial court erred when it found
the contrary and granted the motion to suppress. We agree.
HN1 Under Article 18.01 of the Code of Criminal Procedure, a search warrant may be obtained
from a magistrate only after submission of an affidavit setting forth substantial facts establishing
probable cause. State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim. App. 2011). Probable cause exists
if, under the totality of the circumstances set forth in the affidavit, there is a fair probability that
evidence of a crime will be found in a particular place at the time the warrant is issued. Id. at
568-69.
HN2 We typically apply a bifurcated standard of review to a trial court’s [*5] ruling on a motion
to suppress by giving almost total deference to the trial court’s determinations of fact and
reviewing de novo the trial court’s application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex.
Crim. App. 2011). However, where, as here, a motion to suppress is based solely on a magistrate’s
decision to issue a warrant, there are no credibility determinations to which we must defer because
the trial court is constrained to the four corners of the affidavit. See State v. Webre, 347 S.W.3d
381, 384 (Tex. App.—Austin 2011, no pet.). Nevertheless, HN3 we do not use a de novo standard
of review; we apply a highly deferential standard to review the magistrate’s decision to issue a
1
This information is contained in the Affidavit for Search Warrant to enable Officer Stephens to obtain a blood sample.
Page 4 of 6
2014 Tex. App. LEXIS 11979, *5
warrant because of the constitutional preference for searches to be conducted pursuant to a warrant
as opposed to a warrantless search. McLain, 337 S.W.3d at 271; see Illinois v. Gates, 462 U.S. 213,
236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). In doubtful or marginal cases, the magistrate’s
determination should prevail. Hogan v. State, 329 S.W.3d 90, 94 (Tex. App.—Ft. Worth 2010, no
pet.) (citing Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)). The magistrate may
interpret the affidavit in a non-technical, common-sense manner and may draw reasonable
inferences from the facts and circumstances contained within its four corners. Jordan, 342 S.W.3d
at 569. The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis
for concluding that probable cause existed. Flores, 319 S.W.3d at 702.
Appellee argues that the affidavit did not provide a substantial basis [*6] for the magistrate to find
probable cause to issue a search warrant. As an initial matter, appellee contends that the game
warden did not have probable cause or reasonable suspicion to stop and inspect the boat. HN4 A
game warden, however, may randomly stop a boat, board it, and conduct a safety inspection. See
TEX. PARKS & WILD. CODE ANN. § 31.124 (West 2002); Schenekl v. State, 30 S.W.3d 412, 413 (Tex.
Crim. App. 2000) (holding that section 31.124 is constitutional in its provision that an officer may
stop and board a boat without probable cause or reasonable suspicion to perform a water safety
check); State v. Luxon, 230 S.W.3d 440, 449 (Tex. App.—Eastland 2007, no pet.) (″Section
31.124(a) authorizes enforcement officers to stop and board boats, without probable cause or
reasonable suspicion, for the purpose of performing a water safety check.″). In addition to many
other items, a game warden’s safety inspection may include fire extinguishers. See TEX. PARKS &
WILD. CODE ANN. § 31.067 (West 2002); Schenekl, 30 S.W.3d at 415. Here, the game warden’s
affidavit stated he stopped appellee’s boat to conduct a random safety inspection and then
describes his observations of appellee regarding the fire extinguisher when he sought to inspect it.
The game warden’s stop for a random safety inspection, including the fire extinguisher, is
specifically authorized by Texas law. We overrule appellee’s [*7] first contention.
In regard to the sufficiency of the game warden’s affidavit to authorize a blood draw, Officer
Stephens stated that (1) he noticed a package of beer cans on the floor of the boat, (2) he smelled
alcohol on the appellee, and (3) the smell of alcohol on her breath was ″strong.″ The affidavit
further notes that appellee was unable to locate the fire extinguisher despite the fact that it was
located at her feet and then appellee was unable to operate the buckle or replace the pin on the
extinguisher. Appellee also admitted to having one drink and refused to perform the standardized
field sobriety test. Officer Stephens noted in his affidavit that appellee was ″heavy footed″ when
she walked and her eyes were ″red″ and ″watering.″ Finally, Officer Stephens stated in his affidavit
that he had seen ″intoxicated persons on many occasions in the past″ and that, ″based on all of
[his] experience and training,″ he had determined that appellee was intoxicated. Under the totality
of the circumstances and given the deferential standard by which we review—and the trial court
should have reviewed—a magistrate’s probable cause determination, we conclude that probable
cause existed for [*8] the issuance of the warrant because the magistrate had a substantial basis for
concluding that appellee’s blood sample would uncover evidence of her wrongdoing. See Campos
v. State, 623 S.W.2d 657, 660 (Tex. Crim. App. 1981) (evidence sufficient to demonstrate
intoxication where defendant smelled of beer, had ″thick-tongued″ speech, and was unsteady on his
feet); Kelly v. State, 413 S.W.3d 164, (Tex. App.—Beaumont 2012, no pet.) (affidavit sufficient to
establish probable cause where driver failed to signal, had strong odor of alcohol, slurred speech,
Page 5 of 6
2014 Tex. App. LEXIS 11979, *8
unsure in balance, refused some field sobriety tests, and failed the test that was performed); Foley
v. State, 327 S.W.3d 907, 912 (Tex. App.—Corpus Christi 2010, pet. ref’d) (facts stating that
defendant smelled strongly of alcohol, had red and glassy eyes, slurred speech, was geographically
disoriented, poor balance and refused to provide a breath or blood sample were sufficient to
establish probable cause). Accordingly, we conclude the trial court erred in granting appellee’s
motion to suppress and we sustain the State’s issue.
CONCLUSION
Having sustained the State’s sole issue on appeal, we reverse the trial court’s order suppressing the
results of appellee’s blood test and remand for further proceedings consistent with this opinion.
/David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
JUDGMENT
Based on the Court’s opinion of this [*9] date, the judgment of the trial court is REVERSED and
the cause REMANDED for further proceedings consistent with this opinion.
Judgment entered this 30th day of October, 2014.
Page 6 of 6