State v. Opare, 02-18-00247-CR

• Decision Date: 27 December 2018
• Docket Number: No. 02-18-00247-CR,02-18-00247-CR
• Citation: 583 S.W.3d 685
• Parties: The STATE of Texas, Appellant v. Richard OPARE, Appellee
• Court: Texas Court of Appeals

583 S.W.3d 685

The STATE of Texas, Appellant

v.Richard OPARE, Appellee

No. 02-18-00247-CR

Court of Appeals of Texas, Fort Worth.

Delivered: December 27, 2018

Rehearing Denied December 27, 2018

Paul Francis, for Appellee.

Joseph W. Spence, Landon Wade, for Appellant.

Before Sudderth, C.J.; Meier and Kerr, JJ.

OPINION ON REHEARING

Opinion on Rehearing by Chief Justice Sudderth

I. Introduction

The State filed a motion for rehearing in which it complains that we reached the wrong result, referring us to State v. Prieto , 2014 WL 6478236, at *1 (Tex. Crim. App. Nov. 19, 2014) (not designated for publication),¹ an unpublished court of criminal appeals opinion that they cited in footnote 3 on page 13 of their opening brief. Because we are not bound by an unpublished—nonprecedential—opinion, and based on the reasoning set out below, we affirm the trial court’s order granting Appellee Richard Opare’s motion to suppress.

II. Background

Around 2:30 a.m. on September 15, 2015, Christine Hubbell, who was a Pantego police officer at the time, conducted a traffic stop of Opare and arrested him for driving while intoxicated. Three years later, Opare filed a motion to suppress, arguing that the stop had been illegal because there was insufficient reasonable suspicion or probable cause to support it. During the interim, Hubbell moved out of state.

At the April 13, 2018 suppression hearing, Sergeant Ben Moore, who had been called out to the stop on September 15,² testified that by the time he had arrived at the scene, the stop had already occurred. Because he had no independent knowledge of Opare’s driving behavior prior to the stop, Sergeant Moore conceded that he was not able to answer questions about what Hubbell’s intentions had been in stopping Opare or how she might have perceived in realtime the events on the dashcam video recorded by her patrol car.

The prosecutor then explained to the trial court that Sergeant Moore was at the hearing to authenticate the dashcam video, to which the trial court replied, "[H]ow can he authenticate the video ... when he wasn't there?" At that point, the prosecutor suggested moving for a continuance³ and running the suppression motion concurrent with the trial, but the trial court—without admitting the video into evidence—responded, "[L]et’s go ahead and just watch the video," and then "sort of informally decide here what to do."

After viewing the video, the trial court concluded that it would be necessary for Hubbell, as the arresting officer, to authenticate it. The State agreed, adding that the State was willing to subpoena and pay for Hubbell’s travel so that she could testify if trial were set. No exhibits were admitted into evidence at the hearing, but the trial court offered to receive briefing and then issue an "advisory" ruling, i.e., "come to a legal conclusion of what might happen at trial if [the State] had the officer here and proved the video up."

Three weeks later, the trial court issued a letter ruling in which, after noting that there was "insufficient evidence present to justify that reasonable suspicion existed for the stop," it granted Opare’s motion "in all respects."

III. Discussion

In a single issue, the State appeals the trial court’s order,⁴ arguing that the stop was justified because the video showed that Opare committed an offense—failing to signal a lane change—in Hubbell’s presence. And on rehearing, the State argues that this court erred by not considering the dashcam video (or Hubbell’s offense report) "simply because they were not formally admitted as evidence."⁵

A. Standard of Review

We review a suppression ruling by giving almost total deference to the trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor and view the evidence in the light most favorable to the ruling, while reviewing the remaining law-to-fact questions de novo. See Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) ; Wiede v. State , 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007) ; State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) ; Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

B. Our Original Conclusion

The record here contains no evidence for our review. Because no evidence was admitted to support that Hubbell had reasonable suspicion based on specific, articulable facts to conduct a lawful temporary detention, see Crain v. State , 315 S.W.3d 43, 52 (Tex. Crim. App. 2010), the trial court did not err by granting Opare’s motion to suppress.

C. On Rehearing

1. Evolution of the Law on the Use of Exhibits Not Formally Admitted into Evidence

When parties treat an exhibit, document, or other material as if those items had been admitted into evidence, even though they were never formally offered or admitted in the trial court, they can properly be considered as part of the evidence on the theory that, in the absence of a timely objection, displaying the evidence before the jury and eliciting testimony about it is tantamount to introducing it into evidence. Amador , 221 S.W.3d at 673–74 (discussing Harden v. State , 417 S.W.2d 170, 174 (Tex. Crim. App. 1967) (op. on reh'g) ). That is, documents or items in some way made part of the trial record " ‘[that] are treated by the court and parties as if formally introduced into evidence are properly considered by the judge and jury on the merits of the case.’ " Id. at 674 & n.30 (emphasis added) (quoting 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice & Procedure § 43.349 at 606 (2nd ed. 2001), and citing Cornish v. State , 848 S.W.2d 144, 145 (Tex. Crim. App. 1993), Heberling v. State , 834 S.W.2d 350, 356 (Tex. Crim. App. 1992), Smith v. State , 859 S.W.2d 463, 465 (Tex. App.—Fort Worth 1993, pet. ref'd), and State v. Brown , 929 S.W.2d 588, 591 (Tex. App.—Corpus Christi 1996), abrogated on other grounds by State v. Riewe , 13 S.W.3d 408 (Tex. Crim. App. 2000) ). We will review each of the cases relied upon by the court in Amador .

a. Harden v. State

Harden was an arson case tried before a jury in which the appellant was found guilty of burning down a trailer house. 417 S.W.2d at 171–72. On rehearing, he complained that the evidence did not show that the trailer house in question was mounted on blocks and leveled or that it was enclosed with walls and covered, pointing out that the testimony of the witness about the blocks and leveling was given outside the jury’s presence. Id. at 174. The court acknowledged that while that particular testimony was not heard by the jury, the jury was present when the witness identified State’s Exhibit No. 1 as a photograph of the burned-out trailer house and testified about it. Id. While the photograph was not formally offered and introduced into evidence, "[i]n [the] absence of a timely objection, the display of the photograph before the jury and the elicitation of testimony concerning its features was tantamount to the introduction of the photograph[,] and it could be properly considered as part of the evidence."⁶ Id. (citing Erwin v. State , 171 Tex.Crim. 323, 350 S.W.2d 199 (1961) (op. on reh'g) ).⁷

b. Heberling v. State

Heberling was a jury trial in which the defendant was charged with delivering more than 400 grams of a controlled substance (cocaine), which the State did not introduce into evidence. 834 S.W.2d at 355. However, the officer and police department chemist testified about the cocaine, it was marked as an exhibit and was physically shown to the jury, and "the trial court and the parties treated the cocaine as if it had been introduced into evidence." Id.

The court concluded that based on the jury’s visual inspection of the cocaine and the witnesses' testimonies about it, the jury could have reasonably inferred that the cocaine had been "introduced by the State in evidence" as set forth in the charge.⁸ Id. at 355–56.

c. Cornish v. State

Cornish was a Batson challenge case in which the court stated that it was apparent from the record that the parties and the trial court had regarded the juror information cards, which were not admitted into the record, as a significant part of the evidence upon which a resolution of the Batson claim would depend. 848 S.W.2d at 145. In a step away from the "jury-saw-it" basis set out above, the court stated, "We have held that evidence which, although not formally introduced is nevertheless treated by the trial court and the parties as if it had been, may be considered on appeal as if admitted." Id. (citing Heberling , 834 S.W.2d at 356 ). Accordingly, the court held that the juror information cards, which the trial judge had said would "speak for themselves," could be considered to evaluate the Batson claim. Id. at 144–45.

d. Smith v. State

Smith was a DWI jury trial in which the trial court erred by disqualifying one of the potential jurors during voir dire, essentially granting the State an additional strike. 859 S.W.2d at 464. The State argued that because the jury and strike lists were not admitted into evidence by the trial court, they were not properly before this court despite this court’s having granted the appellant’s motion to supplement the record. Id. We cited Cornish and Heberling to support our decision to consider those documents because the record reflected that the trial court had reviewed both strike lists and the defendant’s request for an additional strike, denied by the trial court, was on the record. Id. at 465 (citing Heberling for the proposition that evidence that is not formally admitted may be considered on appeal if the court or parties treat it as if admitted and concluding that the court and parties had "treated these documents as if admitted").

e. State v. Brown

Brown was an indecent exposure case in which the appellant filed a motion to suppress that the trial court granted. 929 S.W.2d at 589. At the suppression hearing, the State produced "what was purportedly an accurate model of the fourth [bathroom] stal...