Joe Saenz Martinez v. State

NO. 07-07-0187-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL D

 

JULY 28, 2008

 

______________________________

 

 

JOE SAENZ MARTINEZ, APPELLANT

 

V.

 

THE STATE OF TEXAS, APPELLEE

 

_________________________________

 

FROM THE 287^TH DISTRICT COURT OF BAILEY COUNTY;

 

NO. 2452; HONORABLE GORDON H. GREEN, JUDGE

 

_______________________________

 

 

Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.

 

 

OPINION

 

 

           Appellant, Joe Saenz Martinez, pled guilty to a third degree felony for driving while intoxicated. Punishment was assessed at six years confinement and a $2,500 fine. Appellant contends the trial court erred in denying his motion to suppress evidence because: (1) Cochran County Deputy Sheriffs exceeded their authority when they detained him in Bailey County; (2) a citizen’s cell phone tip was insufficient to provide probable cause for his detention; and (3) a county-line policing agreement between Bailey and Cochran counties was insufficient to vest jurisdiction in the Cochran County Deputies at the time of Appellant’s detention. We affirm.   

Background

           On November 22, 2006, Cochran County Deputy Sheriff George De La Cruz and Deputy Joe Orosco were on patrol in Morton, Texas. They received a call from their dispatcher describing a reckless driver, possibly intoxicated, traveling south toward Morton on Highway 214. The dispatcher indicated the driver was located at the intersection of FM 54 and Highway 214 approximately eight miles north of the Cochran County line in Bailey County. The dispatcher described the car as a maroon, two-door vehicle and gave them the license plate number. The dispatcher’s information came from a cell phone tip from a second driver following the maroon car.

           De La Cruz and Orosco headed north on Highway 214. Approximately one mile north of the Cochran-Bailey County line, in Bailey County, they spotted a car matching the citizen’s description headed south. The car first drifted into their lane of traffic and then off the roadway onto the shoulder. The car then came back onto the roadway and drifted back onto the shoulder a second time. The deputies passed the car and turned around. They verified that the car’s license number matched the number described by the dispatcher and pulled the car over based upon the citizen’s tip and the driver’s erratic behavior.

           De La Cruz and Orosco approached the vehicle and smelled alcohol when they were close to Appellant. After Appellant got out of the car, he was handcuffed. A man stopped by the roadside and identified himself as the person who phoned in the tip. He gave the deputies his name, phone number, driver’s license information, and stated he had been following Appellant the entire time. The dispatcher informed them a Bailey County Deputy was en route to the scene.

           No field sobriety tests were administered, however, alcoholic beverages were discovered inside the car and its trunk compartment. When the Bailey County Deputy arrived, she took the information on the person who supplied the tip, placed Martinez in her cruiser, and transported him to the Bailey County Jail for processing.

           De La Cruz and Orosco testified to a “working agreement” or “policy” between Cochran and Bailey Counties whereby each county assisted the other when there was an “emergency call” related to an incident located near the county-line such as a car accident or suspicious vehicle. In this instance, they estimated their arrival preceded the Bailey County Deputy by approximately seventeen minutes.

 

Discussion

           Appellant contends evidence of his intoxication should be suppressed because the Cochran County Deputies were out of their home jurisdiction when he was stopped, and no exception in article 14.03 of the Code of Criminal Procedure permitted the deputies to detain him. Appellant next asserts, even if the deputies were empowered by article 14.03, the Cochran County Deputies lacked probable cause to detain him because the information provided by the citizen informant was insufficient to justify his detention. Finally, he asserts the Inter-County Policing Agreement cannot provide the justification necessary for his detention.

Standard of Review

           A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). When, as here, no findings of fact were requested nor filed, we view the evidence in the light most favorable to the trial court’s ruling and assume the trial court made implicit findings of fact supported by the record. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000). If the trial court’s decision is correct on any theory of law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003). Additionally, the legal question whether the totality of circumstances justified the officer’s actions is reviewed de novo. Hudson v. State, 247 S.W.3d 780, 784 (Tex.App.–Amarillo 2008, no pet.).

Issues One and Two: Traffic Stop and Detention Pursuant to Citizen’s Tip

           No one disputes that the Cochran County Deputies were out of their jurisdiction when they stopped and detained Appellant. Generally, “a peace officer is a peace officer only while in his jurisdiction and when the officer leaves that jurisdiction, he cannot perform the functions of his office.” Thomas v. State, 864 S.W.2d 193, 196 (Tex.App.–Texarkana 1993, pet. ref’d). Nevertheless, there are statutory exceptions to this general premise. Article 14.03 states, in pertinent part, as follows:

 

(d) A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer’s presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace.[ ] A peace officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06 of this code.

                                                                       * * *

 

(g)(1) A peace officer listed in Subdivision (1), (2), or (5), Article 2.12,[ ] who is licensed under Chapter 1701, Occupations Code, and is outside of the officer’s jurisdiction may arrest without a warrant a person who commits any offense within the officer’s presence or view, other than a violation of Subtitle C, Title 7, Transportation Code.[ ]

 

           An “arrest” under article 14.03 is not limited to a formal, custodial arrest. See State v. Kurtz, 152 S.W.3d 72, 79 (Tex.Crim.App. 2004). The provisions of article 14.03 also apply when an officer, outside of his jurisdiction, makes a Terry stop. See Brother v. State, 166 S.W.3d 255, 259-60 (Tex.Crim.App. 2005), cert. denied, 546 U.S. 1150, 126 S. Ct. 1172, 163 L. Ed. 2d 1129 (2006). Thus, if a peace officer is outside the officer’s home jurisdiction and has knowledge that, when combined with the officer’s personal observations, causes the officer to believe an offense is being committed in the officer’s presence, then the officer may lawfully detain or arrest that suspect. Id. at 257-58, 260; Leonard v. State, 135 S.W.3d 98, 103 (Tex.App.–Texarkana 2004, pet. ref’d).

           Thus, while the facts known to the officer must amount to more than a mere hunch or suspicion, Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997), the factual basis for the traffic stop or detention need not arise solely from the officer’s personal observation, but may be supplied by information from another person such as an informant. Brother, 166 S.W.3d at 257. Whether the citizen-informant is reliable is “generally shown by the very nature of the circumstances under which the incriminating information became known to him or her.” Id. at 258.

           Here, the dispatcher relayed information to the deputies obtained from a citizen’s cell phone tip describing a reckless driver that was possibly intoxicated. The citizen’s tip gave an accurate description of the car, its color, license number, and location. The deputies then identified a car matching the description and license plate number at the location described. The deputies observed the car swerve into the oncoming lane of traffic and drift from its lane back and forth into and out of the shoulder. De La Cruz testified he stopped Appellant because his observations corroborated the citizen’s tip that Appellant was driving recklessly while intoxicated.

           After the deputies stopped Appellant’s car, smelled alcohol on his person, and secured him, the citizen stopped, identified himself as the person who phoned in the tip, gave his driver’s license information, and indicated he had been following Appellant the entire time. Thereafter, the deputies searched Appellant’s car, found alcoholic beverages in the interior and trunk compartment and awaited the arrival of the Bailey County Deputy.

           Unsolicited information regarding a crime in progress provided by a citizen who has no relationship with the police, provides detailed information, and makes himself accountable by providing contact information is sufficiently reliable to warrant an officer to reasonably conclude that a temporary detention is justified. Brother, 166 S.W.3d at 258, 259 (collected cases cited therein). Because those circumstances are present here, the deputies did not abuse their discretion in determining that the citizen’s tip was reliable. Moreover, the deputies corroborated the citizen’s information through personal observation of Appellant’s erratic driving.

           Under similar circumstances, Texas courts have upheld traffic stops and/or subsequent DWI arrests by peace officers outside their jurisdictions under article 14.03. See id. at 257 n.1, 258-60 (citizen’s detailed report without on-site corroboration by officer out of his jurisdiction sufficient to establish reasonable suspicion for officer to stop or probable cause to arrest for DWI). See also State v. Purdy, 244 S.W.3d 591, 593-95 (Tex.App.–Dallas 2008, no pet.); State v. Nelson, 228 S.W.3d 899, 901-05 (Tex.App.–Austin 2007, no pet.); Mitchell v. State, 187 S.W.3d 113, 117-18 (Tex.App.–Waco 2006, pet. ref’d); Leonard, 135 S.W.3d at 100-02.

           Appellant contends the deputies lacked authority to detain him under article 14.03 (d) or (g)(1) because the only offenses he may have committed in their presence were traffic violations. Ostensibly, Appellant contends he was stopped for committing the traffic violations of improperly driving on the road’s shoulder and/or improperly entering the lane of oncoming traffic. See Tex. Transp. Code Ann. §§ 545.058, 545.060 (Vernon 1999). In support, Appellant relies on State v. Kurtz, 111 S.W.3d 315, 320 (Tex.App.–Dallas 2003), aff’d, 152 S.W.3d 72 (Tex.Crim.App. 2004).

           In Kurtz, a police officer from the City of Plano observed defendant’s car cross the right lane onto the improved shoulder of the highway and cross from the shoulder to the lane and back again several times while driving in the City of Frisco. While he was outside the geographic limits of his jurisdiction, the officer stopped the defendant based solely on the traffic violations. When the officer approached defendant, he smelled evidence of intoxication and arrested him for driving while intoxicated. Because the officer originally stopped defendant solely for a traffic violation, and was unaware of the commission of any offense of driving while intoxicated until after the stop when he approached the driver, the Court of Criminal Appeals held the evidence of intoxication had to be suppressed because the officer was out of his jurisdiction and without authority to make the initial traffic stop under either article 14.03 (d) or (g)(1). Kurtz, 152 S.W.3d at 79-80. The Court found there was an unlawful detention because the officer did not know the felony offense of driving while intoxicated was being committed in his “presence or view” until after he stopped the driver for a traffic violation. Id.

           Kurtz is distinguishable from this case because the traffic stop in Kurtz was based solely on a traffic violation. In that opinion, the Court expressly stated that it was not considering a fact scenario where an officer acts to arrest based upon a breach of the peace. See Kurtz, 152 S.W.3d at 79. This case is more like Brother, because here, the citizen’s detailed tip indicating that Appellant was driving recklessly, possibly intoxicated, was corroborated by Appellant’s traffic violations observed by De La Cruz leading him to have a reasonable suspicion Appellant was intoxicated. See Brother, 166 S.W.3d at 260. It was because De La Cruz had a reasonable suspicion that Appellant was driving while intoxicated that he stopped Appellant’s car. Thus, article 14.03(g) did not prohibit the detention by the Cochran County Deputies because Appellant was not stopped solely for a traffic violation.

           The detailed citizen’s tip coupled with the deputies’ personal observations leads us to conclude that, not only did the deputies have reasonable suspicion to stop Appellant’s car, but also probable cause to make the arrest for driving while intoxicated. See Brother, 166 S.W.3d at 258-59 (Tex.Crim.App. 2005). “A stop based on facts supplied by a citizen-eyewitness when adequately corroborated by the officer, does not run afoul of the Fourth Amendment.” Nelson, 228 S.W.3d at 903 (citing Brother, 166 S.W.3d at 259). Issues one and two are overruled.

Issue Three: Inter-County Policing Agreement

           Having determined Appellant was properly detained under article 14.03(d) and (g)(1), Appellant’s third issue, whether the Inter-County Policing Agreement constituted an alternative justification for Appellant’s detention, is pretermitted.   

Conclusion

           Accordingly, the trial court’s judgment is affirmed.

                                                                                  Patrick A. Pirtle

                                                                                         Justice

 

 

Publish.

nsi-font-family:Arial; mso-bidi-font-family:"Times New Roman"; color:#243F60; font-style:italic;} span.Heading7Char {mso-style-name:"Heading 7 Char"; mso-style-priority:9; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Heading 7"; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:Arial; mso-bidi-font-family:"Times New Roman"; color:#404040; font-style:italic;} span.Heading8Char {mso-style-name:"Heading 8 Char"; mso-style-priority:9; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Heading 8"; mso-ansi-font-size:10.0pt; mso-bidi-font-size:10.0pt; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:Arial; mso-bidi-font-family:"Times New Roman"; color:#4F81BD;} span.Heading9Char {mso-style-name:"Heading 9 Char"; mso-style-priority:9; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Heading 9"; mso-ansi-font-size:10.0pt; mso-bidi-font-size:10.0pt; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:Arial; mso-bidi-font-family:"Times New Roman"; color:#404040; font-style:italic;} span.TitleChar {mso-style-name:"Title Char"; mso-style-priority:10; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Title; mso-ansi-font-size:26.0pt; mso-bidi-font-size:26.0pt; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:Arial; mso-bidi-font-family:"Times New Roman"; color:#17365D; letter-spacing:.25pt; mso-font-kerning:14.0pt;} span.SubtitleChar {mso-style-name:"Subtitle Char"; mso-style-priority:11; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Subtitle; mso-ansi-font-size:12.0pt; mso-bidi-font-size:12.0pt; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:Arial; mso-bidi-font-family:"Times New Roman"; color:#4F81BD; letter-spacing:.75pt; font-style:italic;} span.QuoteChar {mso-style-name:"Quote Char"; mso-style-priority:29; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Quote; color:black; font-style:italic;} span.IntenseQuoteChar {mso-style-name:"Intense Quote Char"; mso-style-priority:30; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Intense Quote"; color:#4F81BD; font-weight:bold; font-style:italic;} p.NewDocument, li.NewDocument, div.NewDocument {mso-style-name:"New Document"; mso-style-unhide:no; mso-style-qformat:yes; mso-style-next:Normal; margin-top:0in; margin-right:0in; margin-bottom:10.0pt; margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:12.0pt; mso-bidi-font-size:11.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:Arial; mso-bidi-language:EN-US;} span.BalloonTextChar {mso-style-name:"Balloon Text Char"; mso-style-noshow:yes; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Balloon Text"; mso-ansi-font-size:8.0pt; mso-bidi-font-size:8.0pt; font-family:"Tahoma","sans-serif"; mso-ascii-font-family:Tahoma; mso-hansi-font-family:Tahoma; mso-bidi-font-family:Tahoma; mso-bidi-language:EN-US;} span.HeaderChar {mso-style-name:"Header Char"; mso-style-noshow:yes; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Header; mso-ansi-font-size:11.0pt; mso-bidi-font-size:11.0pt; mso-bidi-language:EN-US;} span.FooterChar {mso-style-name:"Footer Char"; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Footer; mso-ansi-font-size:11.0pt; mso-bidi-font-size:11.0pt; mso-bidi-language:EN-US;} span.FootnoteTextChar {mso-style-name:"Footnote Text Char"; mso-style-noshow:yes; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Footnote Text"; font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast;} span.SpellE {mso-style-name:""; mso-spl-e:yes;} span.GramE {mso-style-name:""; mso-gram-e:yes;} .MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; font-size:10.0pt; mso-ansi-font-size:10.0pt; mso-bidi-font-size:10.0pt; mso-ascii-font-family:Arial; mso-fareast-font-family:Arial; mso-hansi-font-family:Arial; mso-bidi-font-family:Arial;} /* Page Definitions */ @page {mso-footnote-separator:url("07-11-0070.CV%20opinion_files/header.htm") fs; mso-footnote-continuation-separator:url("07-11-0070.CV%20opinion_files/header.htm") fcs; mso-endnote-separator:url("07-11-0070.CV%20opinion_files/header.htm") es; mso-endnote-continuation-separator:url("07-11-0070.CV%20opinion_files/header.htm") ecs;} @page WordSection1 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-page-numbers:1; mso-title-page:yes; mso-footer:url("07-11-0070.CV%20opinion_files/header.htm") f1; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} @page WordSection2 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-title-page:yes; mso-footer:url("07-11-0070.CV%20opinion_files/header.htm") f2; mso-paper-source:0;} div.WordSection2 {page:WordSection2;} -->

NO. 07-11-00070-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL A

 

APRIL 13, 2011

 

 

IN RE JACKIE LEE BIBBS, RELATOR

 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

 

 

MEMORANDUM OPINION

 

Relator, Jackie Lee Bibbs, has filed an “Application for Leave to File Writ of Mandamus” requesting this Court abate “this cause^[1] back to the trial court for evidentiary/admonishment hearings.”  We deny the petition.

Texas Rule of Appellate Procedure 52.3^[2] identifies the requirements for a petition for writ of mandamus filed in this Court.^[3]  Bibbs has failed to comply with these requirements.  Rule 52.3(a) requires that a petition must include a complete list of all parties and the names and addresses of all counsel.  Bibbs does not include any such list.  Bibbs identifies the respondent as Peggy Culp, the Clerk of the Seventh Court of Appeals, and alleges that Culp has breached her ministerial duties in regard to Bibbs’s direct appeal; however, the specific relief requested by Bibbs (abatement and, presumably, remand to the trial court) would appear to request that this Court issue a writ of mandamus against itself.  Rule 52.3(b) requires that the petition include a table of contents with references to the pages of the petition and an indication of the subject matter of each issue or point raised in the petition.  Bibbs’s petition includes no table of contents.  Rule 52.3(c) requires that a petition include an index of authorities in which all authorities cited in the petition are arranged alphabetically and the page(s) upon which the authorities are cited is indicated.  Bibbs=s petition includes no index of authorities.  Rule 52.3(d) requires a statement of the case that includes a concise description of the nature of the underlying proceeding.  Bibbs=s petition does not contain a statement of the case, and does not include a concise description of the nature of the underlying proceeding.  Rule 52.3(e) requires the petition include a statement regarding the basis of this Court’s jurisdiction.  Bibbs’s petition does not include a jurisdictional statement.^[4]  Rule 52.3(f) requires the petition include a concise statement of all issues or points presented for relief.  Bibbs’s petition includes no such statement.  Rule 52.3(g) requires the petition include a statement of facts supported by citation to competent evidence included in the appendix or record.  Bibbs’s petition does not include a statement of facts. Rule 52.3(h) requires a clear and concise argument for the contentions made, with appropriate citations to authorities.  Bibbs’s argument is not clear nor does it identify any authority that would authorize the relief sought.  Rule 52.3(i) requires the petition include a short conclusion that clearly states the nature of the relief sought.  Bibbs’s petition does not clearly state the nature of the relief sought in that it identifies the Clerk of this Court as the respondent, but then requests this Court issue a writ of mandamus ordering his pending criminal appeal abated to the trial court. Clearly, abating and remanding a pending appeal is beyond the authority of an appellate court clerk.  Finally, Rule 52.3(k)(1)(A) requires that the appendix to the petition include a certified or sworn copy of any order complained of, or other document showing the matter complained of. Bibbs has not included an appendix to his petition.  As each of these items are required in a petition for writ of mandamus and Bibbs has failed to comply with these requirements, we may not grant the relief that he requests.

Additionally, Texas Rule of Appellate Procedure 9.5 requires that, at or before the time that a document is filed with this Court, a copy of the document must be served on all parties to the proceeding.  Bibbs’s petition includes a certificate of service, but it indicates only that a copy of the petition was served on the Tarrant County District Clerk.  Nothing in the petition identifies the Tarrant County District Clerk as a party to this original proceeding.  There is no certification that the petition was served on the named respondent or any other party to this original proceeding.^[5]

Finally, a liberal construction of Bibbs’s petition reveals that the only parties against whom Bibbs could arguably be requesting this Court to issue writ of mandamus are the Clerk of this Court, the Tarrant County District Clerk, and this Court itself.  A court of appeals has authority to issue writs of mandamus against district and county court judges within the court of appeals=s district and all writs necessary to enforce its jurisdiction.  Tex. Gov=t Code Ann. ' 22.221(a), (b) (Vernon 2004).  Clearly, none of the parties against whom Bibbs might be seeking mandamus relief falls within the express statutory grant of our mandamus jurisdiction.  As such, we may only issue a writ of mandamus against these parties if the relator shows that issuance of the writ is necessary to enforce our jurisdiction.  In re Cummins, No. 07-04-0354-CV, 2004 Tex.App. LEXIS 8107, at *2 (Tex.App.BAmarillo Sept. 2, 2004, orig. proceeding) (mem. op.); In re Coronado, 980 S.W.2d 691, 692 (Tex.App.BSan Antonio 1998, orig. proceeding).  Bibbs’s petition makes no effort to make such a showing.

As Bibbs=s petition for writ of mandamus does not comply with the requirements of Rule 52.3, we deny the petition.

 

                                                                                                Mackey K. Hancock

                                                                                                            Justice

 

---

^[1] We presume that Bibbs’s reference to “this cause” is a reference to his pending criminal appeal in Cause Number 07-10-0300-CR, rather than the present original proceeding.

 

^[2] Further citation of Texas Rules of Appellate Procedure will be by reference to ARule __.@

^[3] While Bibbs’s filing is denominated as an application for leave to file a writ of mandamus, we construe it to be a petition requesting this Court issue a writ of mandamus.

^[4] It appears that Bibbs attempted to identify the basis of this Court’s jurisdiction by citing statutes and rules that Bibbs contends were violated.  Not every violation of a statute or rule will authorize the extraordinary relief of mandamus. Further, none of the statutes or rules cited by Bibbs are applicable to the complaints Bibbs asserts in his petition.

^[5] As Bibbs failed to include a complete list of all parties and the names and addresses of all counsel in his petition and based on the apparent conflict between the named respondent and the relief requested, we are uncertain who the proper parties to this original proceeding might be.