IN THE COURT OF APPEALS FOR THE FIFTH COURT OF APPEALS DISTRICT OF TEXAS THE STATE OF TEXAS, APPELLANT NO. 05-10-00519-CR V. KATHRYN LYNN TURNER, APPELLEE APPEALED FROM CAUSE NUMBER M10-51379 IN THE COUNTY CRIMINAL COURT NUMBER 4 OF DALLAS COUNTY, TEXAS; THE HONORABLE TERESA TOLLE, JUDGE PRESIDING. STATE'S REPLY BRIEF CRAIG WATKINS Criminal District Attorney Dallas County, Texas MICHAEL R. CASILLAS, Assistant Criminal District Attorney Chief Prosecutor - Appellate Division The privilege of presenting 133 N. Riverfront Blvd., LB19 oral argument has already Dallas, Texas 75207-4399 been waived. (214) 653-3600/ FAX (214) 653-3643 State Bar No. 03967500 STEPHANIE MITCHELL, Assistant Criminal District Attorney
TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL...ii TABLE OF AUTHORITIES... iii SUMMARY OF THE CASE/STATEMENT OF FACTS...1 SUMMARY OF STATE'S REPLY ARGUMENTS...2 STATE'S INITIAL ARGUMENT IN REPLY...3 Appellee s Reliance On Guzman v. State Is Misplaced...3 STATE'S SUBSEQUENT ARGUMENT IN REPLY...11 Appellee Should Not Prevail On His Argument Which Seeks Application Of The Expressly- Prohibited Divide And Conquer Review Technique...11 CONCLUSION AND PRAYER...15 CERTIFICATE OF SERVICE...16 i
Appellant: The State of Texas Identity of Parties and Counsel Represented by: The Honorable Craig Watkins, Criminal District Attorney Michael R. Casillas, Assistant Criminal District Attorney Stephanie Mitchell, Assistant Criminal District Attorney Appellee: Kathryn Lynn Turner Office of the Criminal District Attorney of Dallas County Frank Crowley Court s Building 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207-4399 Represented by: The Honorable William David David Burrows (counsel at trial) 4131 N. Central Expressway, Suite 680 Dallas, Texas 75204 The Honorable Jerry D. Kelly (counsel on appeal) 4514 Cole Avenue, Suite 600 Dallas, Texas 75205 ii
TABLE OF AUTHORITIES CASES PAGES United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744 (2002)... 6,7,12,13 State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999)... 8,13 State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008)... 12,13 Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)... i,2,3,5,11 Hayward v. State, No. 01-08-00949-CR, 2009 Tex. App. LEXIS 4880 (Tex. App. Houston [1 st Dist.] June 25, 2009, pet. dism d)(not designated for publication)... 12,13 Johnson v. State, 864 S.W.2d 708 (Tex. App. Dallas 1993), aff d, 912 S.W.2d 227 (Tex. Crim. App. 1995)...3 Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990)...3,8,13 State v. Sheppard, 271 S.W.3d 281 (Tex. Crim. App. 2008)...4,5,6,7,8 Sims v. State, 98 S.W.3d 292 (Tex. App. Houston [1 st Dist.] 2003, pet. ref d)... 6,7 Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008)...2,8,9,10,11 Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007)... 12,13 iii
ARTICLES, CODES, AND RULES: Tex. R. App. P. 4.1(a)...1 Tex. R. App. P. 38.3...1 Tex. R. App. P. 38.6(c)...1 iv
TO THE HONORABLE COURT OF APPEALS: The instant State s Reply Brief is submitted on behalf of Craig Watkins, the Criminal District Attorney of Dallas County, Texas, in regard to the trial court s having erroneously granted Appellee s motion to suppress. SUMMARY OF THE CASE/STATEMENT OF FACTS Based on the content of the State s Opening Brief, this Court is well aware of the historical facts and procedural posture of this case. Accordingly, the State will not repeat those matters in the instant State s Reply Brief, but instead directs this Court to the discussion of those matters contained in the State s Opening Brief. Based on Appellee s Brief, which was filed on August 27, 2010, this Court is well aware of Appellee s responses to the contentions contained in the State s Opening Brief. The State wishes, however, to address certain matters raised in Appellee s Brief. As per the literal text of the applicable rule of appellate procedure, the State files the instant State s Reply Brief in an effort to address certain matters in Appellee s Brief. See Tex. R. App. P. 38.3. According to Tex. R. App. P. 38.6(c), an appellant must file any reply brief within twenty (20) days of the filing of the appellee s brief. As calculated in accordance with the applicable rule of appellate procedure, the twentieth (20 th ) day after August 27, 2010 is September 16, 2010. See Tex. R. App. P. 4.1(a). As per the language of Tex. R. App. P. 38.6(c), the instant State s Reply Brief is timely so long as it is filed no later than September 16, 2010. 1
SUMMARY OF STATE'S REPLY ARGUMENTS STATE S INITIAL ARGUMENT IN REPLY: While Appellee attempts to rely on Guzman v. State, the record below including the trial court s findings of fact and conclusions of law -- demonstrates the mistaken nature of Appellee s aforementioned reliance. Furthermore, application of the more recent case of Vinson v. State further demonstrates the mistaken nature of Appellee s reliance upon Guzman v. State. STATE S SUBSEQUENT ARGUMENT IN REPLY: Scrutiny of another portion of Appellee s argument reveals that Appellee is attempting to persuade this Court to affirm the decision of the trial court based on the reasoning supplied by the trial court and reflected in the trial court s findings of fact and conclusions of law. However, Appellee is in effect attempting to persuade this Court to repeat the error of the trial court in applying the divide and conquer technique of review which has been expressly prohibited by both the Supreme Court of the United States and the Texas Court of Criminal Appeals. 2
STATE S INITIAL ARGUMENT IN REPLY Appellee s Reliance On Guzman v. State Is Misplaced. While Appellee cites Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) and Johnson v. State, 864 S.W.2d 708, 713 (Tex. App. Dallas 1993), aff d, 912 S.W.2d 227 (Tex. Crim. App. 1995) for the general proposition that the trial court serves as the sole judge of witness credibility and assessor of evidentiary weight at any hearing on a motion to suppress, Appellee relies upon Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) as the substantive authority in support of the arguments he offers in opposition to those of the State. (Appellee s Brief at pp. 5-9). Appellee accurately summarizes how Guzman recognizes the existence of questions of fact and mixed questions of law and fact. (Id. at p. 5). Appellee also accurately summarizes how Guzman recognizes that questions that turn on an evaluation of credibility and demeanor are entitled to almost total deference by the appellate courts that are reviewing rulings based on such questions, while those that do not turn on an evaluation of credibility and demeanor are reviewed de novo. (Id.). Based on these premises, Appellee argues in effect that the trial court made its decision based on among other things the testimony of the paramedics and the reports of the paramedics. The trial court, however, made clear in its findings of fact and conclusions of law that the finding that the police lacked probable cause was made because of the report of the members of the Dallas Fire Department that characterized [Appellee s] condition as normal. (CR: 10-11). As this conclusion clearly shows, the trial court based its conclusion not on the 3
remainder of the testimony of the firemen regarding how Appellee had passed any tests, but on their report... that characterized [Appellee s] condition as normal. (CR: 10-11). Clearly, if the trial court had intended to base its conclusion on the rest of the testimony of the firemen, the trial court could have stated that its conclusion was based on the remainder of the testimony of the firemen. Furthermore, it will explained later that a finding such as that advocated by Appellee may not be supplied or otherwise conjured up in light of the trial court s express findings of fact. See State s Reply Brief at p. 5, infra. Additionally, the findings of fact and conclusions of law demonstrate that the trial court did not render a decision based on any evaluation of the relative credibility of the witnesses. The initial sentence of the trial court s Conclusion of Law section reads, The Court concludes that all the witnesses testified truthfully to the best of their respective recollections regarding the relevant events and facts involved therein. (CR: 10). While the trial court s credibility determination appears under the heading Conclusion of Law, it is by its very nature and in accord with binding precedent from the Court of Criminal Appeals a finding of fact that all of the witnesses (which would include all the police officers who had formed the opinion that Appellee had been intoxicated) were credible. The Court of Criminal Appeals has instructed the bench and bar that factual findings are who did what, when, where, how, and why. They also include credibility determinations. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). Accordingly, the trial court s aforementioned express ruling that all the witnesses testified 4
truthfully is a finding of fact that all the witnesses were deemed credible by the trial court. See Sheppard, 271 S.W.3d at 291. Since the trial court expressly found that all the witnesses had testified truthfully, the trial court s ultimate decision could not have been the type that, under Guzman, had been based on an relative assessment of the credibility and demeanor of the witnesses. In short, if all the witnesses are deemed to have testified truthfully, the decision of the trial court could not have been based on the relative assessment that certain witnesses testified truthfully while other witnesses had not. Moreover, the trial court s decision that all the witnesses were credible is one to which this Court must accord deference. The Sheppard court explained further that: When a trial court makes explicit findings of fact, as was done in this case, those are the facts to which we must give deference. And when a trial court makes an explicit credibility finding, we must give deference to that credibility determination. But we cannot conjure up new and different factual or credibility findings when the trial court has made his findings explicit. Sheppard, 271 S.W.3d at 286. As such, this Court must defer to the conclusion of the trial court that all the witnesses were credible. Similarly, since the trial court expressly concluded that all the witnesses had testified truthfully and did not conclude that the firemen had been found more truthful or credible, this Court is prohibited from conjuring up such a finding. See Sheppard, 271 S.W.3d at 286. A consequence of the trial court s having found all the witnesses credible (and of the Sheppard case s requirement that this Court must show deference to that credibility 5
determination) is that this Court must defer to the trial court s determination that all the police officers testified truthfully and were credible when they explained their reasons for believing that Appellee had been intoxicated. Furthermore, the Sheppard court also concluded that factual findings do not include legal rulings on reasonable suspicion or probable cause; those are legal conclusions subject to de novo review, not deference. Sheppard, 271 S.W.3d at 291. As noted in the State s Opening Brief, appellate courts in making a determination as to probable cause must review the totality of the circumstances of each case to see whether the officer had a particular and objective basis for having suspected wrongdoing. Sims v. State, 98 S.W.3d 292, 295 (Tex. App. Houston [1 st Dist.] 2003, pet. ref d)(emphasis added), citing, United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750 (2002). See State s Opening Brief at p. 11. Accordingly, the focus of the inquiry is on the circumstances known to the arresting officer or officers, not some other person. The trial court found as matters of fact that Officer Standard, Officer Lising, and Officer Mraz all believed that Appellee had been intoxicated based on the odor of an alcoholic beverage that was about her breath and person, on the way she exhibited trouble maintaining her balance, and the disorientation she displayed. (CR: 8-10). The trial court also found as a matter of fact that Officer Standard established that Appellee refused to submit to field sobriety testing and had spoken with slurred speech. (CR: 9). Again, the trial court concluded that all the witnesses which would include Officer Standard, Officer 6
Lising, and Officer Mraz were credible because they had all testified truthfully. (CR: 10). Indeed, nothing in the trial court s findings of fact and conclusions of law indicates that the trial court had any doubt regarding the veracity of the aforementioned officers. (CR: 8-11). Accordingly, the trial court s conclusion of law was based on the report of the firemen that had characterized Appellee as normal. (CR: 10-11). However, since the trial court s memorialization of its reasoning contains nothing to indicate that the trial court disbelieved the testimony of the arresting officers, then the trial court erred, as a matter of law, if the testimony of the arresting officers was sufficient to establish probable cause for Appellee s warrantless arrest for DWI. See, e.g., Sheppard, 271 S.W.3d at 292 ( In sum, because there is no indication that the trial judge disbelieved Deputy Smith s testimony [establishing the reasonableness of his detention of Sheppard], the trial court erred, as a matter of law, in granting the motion to suppress. ). Moreover, the assessment of probable cause is supposed to focus on the facts and circumstances known to the arresting officer or officers. See, e.g.,arvizu, 534 U.S. at 273, 122 S.Ct. at 750; Sims, 98 S.W.3d at 295. As the State argued in the State s Opening Brief, the trial court could not properly have based a conclusion that the police officers had lacked probable cause on the report of the firemen because the assessment of probable cause focuses on the facts and circumstances known to the arresting officer or officers. See State s Opening Brief at p. 22. In regard to this, the trial court per se abused its discretion by misapplying the law to the facts because the facts and circumstances that were known to the 7
arresting officer or officers are what must be considered in making an assessment of probable cause, not the facts and circumstances as perceived by some other person who was not an arresting officer. See, e.g., State v. Ballard, 987 S.W.2d 889, 891, 893 (Tex. Crim. App. 1999), citing, Romero, 800 S.W.2d at 543. While the State must concede that the trial court s ruling would not have been erroneous had the trial court made a determination that the police officers had not been credible in their testimony regarding the bases of their opinions that Appellee was intoxicated, the trial court s having found that the officers testified truthfully means that this Court may not somehow speculate that the trial court s ruling was actually based on a conclusion that the testimony of the officers had been found lacking in credibility. See Sheppard, 271 S.W.3d at 291 (In reversing the decision of the intermediate court of appeals that had upheld the trial court s suppression order, the Court of Criminal Appeals explained that, It was only by speculating about credibility determinations that are not part of the trial judge s written factual findings that the court of appeals upheld the trial judge s suppression ruling. ). Additionally, the trial court s determination that the report of the firemen characterizing Appellee as normal was somehow evidence that Appellee was not intoxicated violates binding precedent from the Texas Court of Criminal Appeals. As was explained in the State s Opening Brief, the issuance of Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008) effectuated a change in the law regarding not only the proper manner in which trial courts may make their factual findings, but also in the proper 8
manner of how appellate courts may conduct their reviews of the findings made by the trial courts. See State s Opening Brief at pp. 18-20. The Vinson court contrasted different portions of the testimony of the arresting officer, some of which indicated that the assault victim s detailed description of the assault had been provided before the emergency nature of the situation had been defused, some of which conclusively demonstrated that the aforementioned detailed description had been provided only after the emergency nature of the situation had been defused. Vinson, 252 S.W.3d at 340-42. While the Vinson court acknowledged that an appellate court is supposed to defer to the trial court when conflicting or ambiguous statements are made, the Vinson court made clear that no deference is to be paid when the witness who had to have been found credible in order for the trial court s ruling to have support in the record provides testimony that explains or clarifies conflict or ambiguity inherent in his testimony. Vinson, 252 S.W.3d at 341-42. As explained in the State s Opening Brief, the witness upon whose testimony the admission of the detailed description of the assault had been based later explained and clarified that the detailed description of the assault had been elicited only after the emergency nature of the situation had been defused. See State s Opening Brief at p. 19. Accordingly, the trial court was not permitted in light of the witness having clarified that the more detailed description of the assault had not been elicited until after the emergency nature of the situation had been defused to admit the more-detailed description of the assault based on the witness earlier, non-clarified testimony. Vinson, 252 S.W.3d at 342. 9
Moreover, it was improper for the intermediate appellate court to affirm the ruling of the trial court based on the rule requiring deferential review of the historical facts that had to have found by the trial court in order to justify the admission of the testimony into evidence. Vinson, 252 S.W.3d at 342. Application of Vinson to this case demonstrates that the trial court s ultimate conclusion that the police had lacked probable cause to arrest Appellee for DWI was error because that conclusion could not possibly have been derived from the historical facts. Vinson, 252 S.W.3d at 341. The trial court ruled that all the witnesses, which would include the firemen, testified truthfully. (CR: 10). The trial court s conclusion that the police had lacked probable cause was based only the report of the members of the Dallas Fire Department... (CR: 10). Fireman Benitez expressly testified and the trial court included in its findings of fact that his characterization of Appellee s as normal was in regard to whether [Appellee] ha[d] sustained any injuries and did not refer to any state of intoxication. (CR: 10)(emphasis added). Fireman Murphy likewise expressly testified and the trial court included in its findings of fact that his characterization of normal referred to [Appellee s] ability to answer questions that were posed to her... [and] was based on her lack of injuries and trauma. (CR: 10). Since the trial court ruled that the two firemen had testified truthfully and since the firemen established that their characterizations of Appellee as normal went to matters other than whether Appellee had been intoxicated, the trial court s decision that the police had 10
lacked probable cause to believe that Appellee had been intoxicated based on the report of the firemen cannot possibly have been based on the historical facts developed during the suppression hearing because the firemen conclusively established that their report characterizing Appellee as normal pertained to other matters and did not pertain to whether Appellee was intoxicated. See Vinson, 252 S.W.3d at 341. Furthermore, this Court would actually commit error by affirming the suppression ruling of the trial court that could not possibly have been derived from the historical facts that had actually been developed. See Vinson, 252 S.W.3d at 341-42. While the aforementioned discussion has shown all the reasons why this Court should not be persuaded by Appellee s attempt to rely on Guzman, the following discussion will show how Appellee s argument also constitutes an invitation to this Court to do what it must not, affirm the ruling of the trial court through the application of a technique of review that has been expressly prohibited by the highest court in the United States of America and the highest court in the State of Texas relative to matters of state criminal law. STATE S SUBSEQUENT ARGUMENT IN REPLY: Appellee Should Not Prevail On His Argument Which Seeks Application Of The Expressly-Prohibited Divide And Conquer Review Technique. In support of his arguments, Appellee criticizes the State s having relied on the smell of the alcoholic beverage about Appellee s breath and person as one of the main factors justifying her arrest. (Appellee s Brief at p. 6). Appellee then argues that, This [is] 11
obviously illogical in a sense that this factor alone is hardly sufficient in proving probable cause. (Id.). Appellee then notes that it was uncontradicted that the airbag that was deployed could have reasonably caused any very slight balance problem noted by the paramedics.... (Id.). Appellee s arguments, however, fail to entitle Appellee to prevail on appeal because they constitute an attempt to persuade this Court to repeat the error of the trial court in conducting an assessment of probable cause through resort to the divide and conquer technique of review, which has been expressly prohibited by not only the Supreme Court of the United States, but also by the Texas Court of Criminal Appeals. As was noted in the State s Opening Brief, the Unites States Supreme Court and the Texas Court of Criminal Appeals have both concluded that courts that are conducting assessments of probable cause are prohibited from making such assessments by engaging in review techniques that are of a piecemeal or divide and conquer nature. See State s Opening Brief at pp. 9-10. See also, e.g., Arvizu, 534 U.S. at 274, 122 S.Ct. at 750; State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex. Crim. App. 2008); Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). Moreover, the State also explained in the State s Opening Brief that reviewing courts engage in these expressly-prohibited review techniques when they look at factors in isolation and/or discount certain facts by assigning to them explanations that are non-criminative or less-criminative in nature. See State s Opening Brief at p. 10. See also, e.g., Arvizu, 534 U.S. at 274, 122 S.Ct. at 751; Garcia-Cantu, 253 S.W.3d at 244, 250; Wiede, 214 S.W.3d at 26, 28; Hayward v. State, No. 01-08-00949-CR, 12
2009 Tex. App. LEXIS 4880, at *10 (Tex. App. Houston [1 st Dist.] June 25, 2009, pet. dism d)(not designated for publication). As was discussed in the State s Opening Brief, the trial court discounted the evidence of Appellee s having smelled of an alcoholic beverage by concluding that the smell of alcohol, even if strong, does not automatically lead to the conclusion that [Appellee] was intoxicated. (CR: 11). See State s Opening Brief at p. 7. Likewise, the State s Opening Brief demonstrated conclusively that the trial court had sought to discount the evidence of Appellee s problems maintaining her balance by concluding that it was apparent from the record that the airbag deployed and that could account for [Appellee s] stumbling and unsteadiness. (CR: 11). See State s Opening Brief at p. 7. Furthermore, the State explained in the State s Opening Brief that the trial court had per se abused its discretion by engaging in the expressly-prohibited divide and conquer review technique. See State s Opening Brief at pp. 17-18. See also, e.g., Arvizu, 534 U.S. at 274, 122 S.Ct. at 751; Garcia- Cantu, 253 S.W.3d at 244, 250; Wiede, 214 S.W.3d at 26, 28; Ballard, 987 S.W.2d at 891, 893; Romero, 800 S.W.2d at 543. Assessed in light of the aforementioned legal authority, Appellee s propositions that the smell of alcohol alone fails to prove probable cause relative to whether Appellee was intoxicated and Appellee s trouble maintaining her balance could have been the result of the deployment of her car s airbag are clearly attempts to entice this Court to engage in the same expressly-prohibited divide and conquer technique of review that was used by the trial 13
court. (Appellee s Brief at p. 6). By arguing how the smell of alcohol alone fails to establish probable cause, Appellee is clearly dividing/isolating the facts. By arguing that the deployment of the airbag could explain Appellee s trouble maintaining her balance, Appellee is clearly segregating the fact of her trouble maintaining her balance from the rest of the facts and is then attributing a non-criminative or less-criminative explanation to the fact of her having exhibited trouble maintaining her balance. In both instances, Appellee is trying to diminish the force of the aforementioned facts relative to whether they provide sufficient grounds for a conclusion of probable cause of Appellee s intoxication. Moreover, Appellee s dividing those facts and then conquering them through reliance on the same lesscriminative or non-criminative explanations of those facts that the trial court relied on is obvious to the point of transparency. (CR: 10-11)(Appellee s Brief at p.6). However, the binding precedents from the United States Supreme Court and the Texas Court of Criminal Appeals discussed earlier herein prohibit this Court from accepting Appellee s invitation to repeat the very same error that was committed by the trial court below. For all the aforementioned reasons and based on all the legal authority cited in conjunction therewith, this Court should not be persuaded by the portion of Appellee s argument that constitute the contention that this Court should agree with the trial court s rationale that itself constituted an application of the expressly-prohibited divide and conquer technique of review. 14
CONCLUSION AND PRAYER Despite Appellee s contentions to the contrary, the record below and the law cited by the State still demonstrate that the trial court erred and abused its discretion by failing to use the proper standard of review and by misapplying the law to the facts. Since the trial court abused its discretion by entering an order granting Appellee s motion to suppress, the State renews its prayer that this Court will reverse the trial court s suppression order and remand the case to the trial court for further proceedings. Respectfully submitted, CRAIG WATKINS Criminal District Attorney Dallas County, Texas MICHAEL R. CASILLAS, Assistant Criminal District Attorney Chief Prosecutor - Appellate Division 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207-4399 (214) 653-3600/FAX (214) 653-3643 State Bar No. 03967500 15
CERTIFICATE OF SERVICE A true copy of the State's Reply Brief has been served on opposing co-counsel, the Hon. William David David Burrows, 4131 N. Central Expressway, Suite 680, Dallas, TX 75204, and the Hon. Jerry Kelly, 4514 Cole Avenue, Suite 600, Dallas, Texas 75205 by depositing said copy with the United States Postal Service, postage pre-paid, on this, the 2 nd day of September, 2010. E:\BRF-REPLY-TURNER-K-T-5TH-COA.wpdConDigSig.wpd MICHAEL R. CASILLAS 16