Don't Make This Mistake in Your Hearings; or How to Get in Front of the CCA

Defendant moved to suppress meth and drug paraphernalia evidence seized after a traffic stop. Motion denied, the defendant pleaded out and appealed. The Texarkana Court of Appeals reversed, finding that the officer conducting the stop lacked reasonable suspicion to continue the detention until a drug dog arrived, which, when summoned, alerted to drugs within the vehicle. They didn’t address the State’s “cross-appeal” arguing that the trial court should not have applied the rules of evidence in a suppression hearing because the State failed to file its own notice of appeal.

Texas’s Court of Criminal Appeals heard the State’s petition for the CCA to resolve a split among the courts of appeals as to whether the State must file a separate notice of appeal when the defendant appeals and the State wishes to appeal a law ruling of law under Article 44.01(c), Texas Code of Criminal Procedure. The CCA held in an 8-1 decision that the State need not and remanded the State’s point back to Texarkana.

The officer on the scene said he stopped the defendant’s truck because it lacked needed mud flaps. The officer went on to say that the defendant seemed nervous and answered his questions vaguely. While waiting to hear back on a warrants check, the officer got a call from a county investigator (not clear from the opinions what precise agency the investigator was working for). Defense counsel consistently objected to the officer’s repeating what the investigator told him, and it does not appear that the State made an offer of proof.

In this case on remand, Texarkana, in an opinion written by Justice Bailey C. Moseley, held that though, with the exception of privileges, the Texas Rules of Evidence do not apply to suppression hearings because they involve only the determination of preliminary questions and even though hearsay is admissible at a suppression hearing to demonstrate the existence of reasonable suspicion or probable cause, the objection to the motion to suppress was properly overruled because even though the State did not get an adverse ruling, it did not keep going to reveal what was in the call which might or might not have given the officer cause to hold the defendant further. There is no evidence that the officer possessed sufficient reasonable suspicion to have detained the defendant for the period of time necessary to bring the drug dog to the site of the stop. This case can be distinguished from Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) and similar cases by the failure to limit or exclude admissible evidence.

Comments: Note here that the CCA takes the case not because Texarkana’s judgment is a gross miscarriage of justice (It might be; it might not be.), but to resolve a split among the state courts of appeals. On a petition for discretionary review to the Court of Criminal Appeals (or on a petition for review to the Texas Supreme Court or in an application for writ of certiorari to the Supreme Court of the United States), don’t just talk about whether the intermediate appellate court ruling is a triumph or miscarriage of justice but also emphasize how a ruling in your case will resolve splits between the appellate courts the court you’re making application to is supposed to be governing. Really, the way that the system is set up, that’s how the high courts are supposed to choose their cases.

Lavern A. Pfeiffer v. State of Texas, No. 06-11-00001-CR, (Tex. App.—Texarkana, July 6, 2012, no pet. h.) (on remand).