State of Texas v. Story, Kimberly Crystal , 445 S.W.3d 729 ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0590-13
THE STATE OF TEXAS
v.
KIMBERLY CRYSTAL STORY, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
GUADALUPE COUNTY
M EYERS, J., delivered the opinion of the Court, in which J OHNSON,
K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J., filed a
dissenting opinion in which P RICE, J., joined. W OMACK, J., concurred.
OPINION
Appellee, Kimberly Story, was charged with forgery after police found forged checks
in her car. See T EX. P ENAL C ODE § 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
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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 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
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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
1
The following findings of fact accompanied the trial court’s conclusions of law: (1) on
November 7, 2010, the Sheriff’s Department received an anonymous call that “there was a
vehicle in the field that was chasing a male as if they were trying to run him over;” (2) when
deputies arrived at the scene no one was present; (3) the possible male (Kuykendall) was located
elsewhere and brought back to the scene by a deputy; (4) the defendant (Story) was at the scene.
How or when she came to be there is unknown; (5) Kuykendall and defendant told the deputies
that nothing had happened and they were only having some kind of argument; (6) There was no
emergency, no one was in danger. The community did not need any care taking; (7) Kuykendall
and defendant were arguing because the deputy had brought Kuykendall back to the scene; (8) a
deputy went into the field where the Explorer was located and looked inside the vehicle; (9) the
deputy did not ask anyone for permission to enter the field and look into the vehicle; (10) the
deputy had no reason to look into the vehicle; (11) Defendant was in custody for assault family
violence and Kuykendall was 15-20 feet from the vehicle; (12) deputies entered the vehicle and
seized suspected marijuana; (13) Kuykendall was arrested and placed in a patrol car after he
admitted the marijuana was his; (14) after entering the vehicle to seize the marijuana, the deputy
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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 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 *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’s arrest, 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 *9-10.
searched the passenger area for any other contraband; (15) the deputy sees the checks in the
backseat area of the vehicle. The checks are not contraband; (16) “upon further inspection of the
checks” the deputy noticed the payee on the checks was defendant; (17) no photographs of the
back seat area were taken even though a camera was available. Photographs would have verified
what the deputy saw in the back seat; (18) the deputy seized the checks as evidence of a crime
without a search warrant issued by a judge only on his “suspicion that the checks were
fraudulently written out and stolen possibly;” (19) the defendant owned the vehicle; (20) only
after further investigation was probable cause established that defendant had committed the
offense of a forgery.
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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
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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
(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
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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
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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 pursuant to
Kuykendall’s arrest is missing its essential first link of the deputies’ entry into the field
being lawful.
Further, one of the officers who testified at the suppression hearing stated that the
search of the vehicle was conducted pursuant to Appellee’s arrest, and no officers
testified otherwise. Therefore, the court of appeals did not err in rejecting the State’s
theory that the search occurred pursuant to Kuykendall’s arrest.
The record also supports the trial court’s conclusion that Appellee’s arrest was
unlawful for a lack of probable cause, which is required in order for an officer to make an
arrest without a warrant. An officer has probable cause when he has knowledge of facts
that would lead a reasonable person to believe that the suspect has committed a crime or
will soon do so. Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). Only when
the officer has probable cause to arrest the suspect may the officer conduct a warrantless
search of the passenger compartment of the suspect’s vehicle as a search incident to the
arrest. State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999). Any evidence that
is obtained directly pursuant to an unlawful arrest, however, cannot be used unless the
State can show that the means by which it was obtained are “sufficiently distinguishable”
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from the taint of the original unlawful search. Wong Sun v. United States, 371 U.S. 471,
487-88 (1963). Further, an anonymous call, standing alone, cannot serve to supply
probable cause for a warrantless search or arrest. Rojas v. State, 797 S.W.2d 41, 43 (Tex.
Crim. App. 1990). There must be additional facts or circumstances that support an
officer’s finding of probable cause. Amores v. State, 816 S.W.2d 407, 416 (Tex. Crim.
App. 1991).
In this case, both of the involved parties indicated that they were having an
argument and that Appellee was simply driving beside Kuykendall in her car. Without
additional facts and circumstances indicating that Appellee had committed or was
committing an offense, the anonymous call could not serve as the basis for the probable
cause required for her arrest. Therefore, viewing the record in the light most favorable to
the trial court’s ruling, the conclusion that Appellee’s arrest was made without probable
cause is supported by the evidence. Because it was not error to find Appellee’s arrest
unlawful, it was similarly reasonable for the trial court to conclude that any evidence
found pursuant to that arrest was not admissible. We conclude, therefore, that the trial
court did not abuse its discretion in suppressing the checks and the court of appeals did
not err in affirming the trial court’s ruling.
Alternatively, the State argues that remand is appropriate because the court of
appeals did not analyze the argument that the checks were lawfully seized pursuant to
Kuykendall’s arrest. The court of appeals, however, did directly deal with the issue,
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stating,“Instead of addressing the matter of Story’s unlawful arrest, the State argues the
deputies obtained the checks lawfully in a search incident to Kuykendall’s arrest. We find
this argument unconvincing. The evidence supports the conclusion that the checks were
obtained by exploiting Story’s unlawful arrest.” Story, 2013 Tex. App. LEXIS 4769, at
*10. The court of appeals explained, albeit briefly, that it is rejecting the State’s argument
because it is contrary to the evidence. Considering that the evidence presented at the
suppression hearing directly indicated that the search was made pursuant to Appellee’s
arrest, not Kuykendall’s, we find the court of appeals’ explanation to be satisfactory and
that remand of this case for the issue to be reconsidered is not the appropriate disposition.
CONCLUSION
The record, viewed in the light most favorable to the trial judge’s ruling, supports
the conclusion that Appellee’s arrest was unlawful, as was the subsequent search of her
vehicle incident to that arrest. The trial court did not abuse its discretion, and its ruling
was not arbitrary or unreasonable. Therefore, we affirm the court of appeals’s judgment
that upheld the trial court’s ruling to suppress the checks.
Delivered: October 15, 2014
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