State v. Story

• Decision Date: 15 October 2014
• Docket Number: No. PD–0590–13.,PD–0590–13.
• Citation: 445 S.W.3d 729
• Parties: The STATE of Texas v. Kimberly Crystal STORY, Appellee.
• Court: Texas Court of Criminal Appeals

445 S.W.3d 729

The STATE of Texas

v.Kimberly Crystal STORY, Appellee.

No. PD–0590–13.

Court of Criminal Appeals of Texas.

Oct. 15, 2014.

David J. Eveld, Seguin, TX, for Appellant.

Stacey Goldstein, State Prosecuting Attorney, Austin, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which JOHNSON, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

Appellee, Kimberly Story, was charged with forgery after police found forged checks in her car. See Tex. Penal Code § 32.21 (2014). The trial court, however, granted her motion to suppress the checks that were recovered from her vehicle, which was searched during the arrest of Appellee and her boyfriend, James Kuykendall, for unrelated offenses. The trial court determined that Appellee was arrested without probable cause and that the search of her vehicle and seizure of the evidence found there were the result of a trespass by the officer. The court of appeals affirmed the ruling of the trial court, finding no abuse of discretion in the court's conclusion that Appellee's arrest was unlawful and the evidence inadmissible. State v. Story, No. 04–12–00235–CR, 2013 WL 1640781, at *4, 2013 Tex.App. LEXIS 4769, at *10 (Tex.App.-San Antonio April 17, 2013) (mem. op., not designated for publication). We agree with the court of appeals that the trial court did not abuse its discretion and, therefore, affirm its judgment.

BACKGROUND

Sheriff's deputies responded to an anonymous report of a vehicle chasing and possibly attempting to run over a man in a field. When the officers arrived, they found an SUV parked in the field, but no one else was present. The deputies found James Kuykendall walking alone on a nearby street and, after speaking with him, learned that he was the man described in the report. Because Kuykendall's story was vague, they transported him back to the scene where the SUV was parked to try to get more information from him. Appellee then appeared, and the couple told the officers that they had both been in the car when they had an argument and Kuykendall got out. They explained that Appellee then followed Kuykendall in the car, trying to convince him to get back in. Both agreed that “nothing had happened, that it was just an argument.” However, Appellee was arrested for misdemeanor assault.

Prior to Appellee's arrest, a deputy was walking by her vehicle and saw, in plain view, what he thought to be marijuana sitting on the floor by the passenger seat.

Appellee was then arrested for the assault and the officers searched her vehicle. The officers collected the marijuana and arrested Kuykendall because he admitted that it was his. During the search of the entire passenger compartment of Appellee's vehicle, the deputies also found several checks laid out in the back seat. All of the checks were from the Youth Livestock Show and were either made out to Appellee or blank. Appellee's brother, who had come down to the scene at some point, confirmed for the officers that Appellee was not supposed to have the checks. The deputies seized the checks, and Appellee was later indicted for forgery.

Appellee filed a motion to suppress the checks, which the trial court granted. The trial court concluded that there was no probable cause to arrest Appellee for assault, that the deputy had no reason to look into the vehicle, and that the deputy trespassed when he went into the field and looked into the vehicle's windows.¹ Therefore, the court found that the seizure of the marijuana was illegal, as was the resulting seizure of the checks.

COURT OF APPEALS

The court of appeals held that “the evidence supports the conclusion that the checks were obtained by exploiting Story's unlawful arrest” and, therefore, their suppression by the trial court was proper. Story, 2013 WL 1640781, at *4, 2013 Tex.App. LEXIS 4769, at *10. It concluded that the evidence supported the trial court's conclusion that Appellee's arrest for misdemeanor assault was unlawful because the report from the anonymous caller was not sufficient to establish probable cause and both parties explained they were only having an argument. Id. at *3–4, 2013 Tex.App. LEXIS 4769, at *9. Further, her arrest was not made under a circumstance that authorizes a warrantless arrest, such as committing an offense in the presence of an officer. Id. The State did not attempt to argue that Appellee's arrest was lawful, but instead claimed that the checks were seized subject to Kuykendall'sarrest, rather than Appellee's. The court of appeals found this “unconvincing.” Id. Determining that the trial court's suppression ruling was reasonably supported by the record, the court of appeals affirmed the motion to suppress. Id. at *3–4, 2013 Tex.App. LEXIS 4769, at *9–10.

ARGUMENTS OF THE PARTIES

The State asserts that the court of appeals erred in holding that the seizure of the checks following a warrantless search of Appellee's SUV was tainted by her unlawful arrest as fruit of the poisonous tree. It argues that the checks are admissible against Appellee because they were lawfully seized pursuant to Kuykendall's arrest. Further, the State contends that the deputies' entry onto the field was lawful under the “open fields” doctrine and that the marijuana was in plain sight when the officer looked through the car's window. Therefore, Kuykendall was lawfully arrested after taking responsibility for the drugs, and there was probable cause to seize the marijuana. The State argues that the checks were in plain view in the back seat and that their incriminating character was immediately apparent.

Alternatively, the State contends that remand to the court of appeals would be appropriate because the court of appeals did not consider the admissibility of the checks under the theory that the search was valid pursuant to Kuykendall's arrest. Appellee counters that the testimony from one of the officers present that night made clear that the search was conducted pursuant to Appellee's arrest. Further, Appellee points out that the court of appeals did directly address the State's theory and found it unconvincing.

Appellee also argues that, because it was not brought up on direct appeal, the State cannot now raise a challenge to the trial court's conclusion that the deputy trespassed prior to the search of Appellee's vehicle. Regardless, however, Appellee asserts that the State misunderstands the open-fields doctrine, because an intrusion on an open field by law enforcement is considered trespass. See Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The trial court was correct in concluding that a trespass occurred, that the deputy had no reason to look inside the vehicle, and that the search of the vehicle was illegal.

STANDARD OF REVIEW

We will review a lower court's ruling on the motion to suppress for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006). The record will be viewed in the light most favorable to the trial court's determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement.” Id.; Montgomery v. State, 810 S.W.2d 372, 391–92 (Tex.Crim.App.1991). We will uphold the judgment if it is correct on some theory of law applicable to the case, even if the trial judge made the judgment for a wrong reason. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Further, a trial court's ruling will not be reversed based on a legal theory that the complaining party did not present to it. Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App.2002). Because the trial court is the sole trier of fact, we will give almost total deference to the its determination of historical facts. Dixon, 206 S.W.3d at 590. The trial court's application of the law to those facts, however, is reviewed de novo. Id.

ANALYSIS

In its first issue, the State argues that Appellee's vehicle was searched pursuant to Kuykendall's arrest and that a step-by-step application of the law to the facts shows that the trial court erred in rejecting this claim. The first step in the State's proposed analysis is finding the deputies' entry into the unoccupied field lawful under the open-field doctrine. From this lawful entry, the State says, the officers developed probable cause to arrest Kuykendall and, subsequently, the probable cause for the search of the rest of the vehicle.

First, as discussed, an appealing party may not present a theory for the first time on appeal. Hailey, 87 S.W.3d at 122. Here, the State never presented any evidence concerning the open-field doctrine or even raised the doctrine as part of its argument at either the trial court or the court of appeals. Therefore, while the State's theory might be valid to justify the search, it needed to be raised in the trial court in order for us to consider it. Despite this requirement, during the suppression hearing, the State never asserted that the area where the vehicle was located was an “open field” in the legal sense, nor did the State provide any evidence to support such a determination.

The State also asserts that, contrary to the trial judge's conclusion, there is no evidence that the officers were trespassing because there is no evidence that the unknown owner prohibited entry. There is no evidence on this issue, however, because the State did not present any. Because the State had the burden of proving that the location was an open field, the lack of evidence undermines the State's argument rather than supports it. This open-field claim should have been raised at the suppression hearing in order to avoid what, due to the lack of evidence, would only be speculation on our part due to the lack of evidence. Because the trial court never had the opportunity to rule upon it and Appellee never had a chance to rebut it, the State cannot now rely on its open field theory. Therefore, the State's theory that the checks were properly seized...