By Alex Hunn
Assistant District Attorney in Brown County
Whenever I win a trial, I take it as a given there will be an appeal. Writing response briefs to these appeals makes up the overwhelming majority of appellate work prosecutors do. Even so, every prosecutor should know the situations in which the State is entitled to file an appeal of its own. I had one after a suppression hearing last year, and I managed to have the suppression reversed by filing a State’s appeal.[1] That case, styled State of Texas v. Brandon Nicholas Martinez, showcases how to pursue such an appeal and the potential upside of taking the time to do so.
The case
The case itself is a common one: Brandon Martinez was detained by Brownwood Police Officer Rodriguez for failure to signal a turn within 100 feet. The two talked for about seven minutes before Officer Rodriguez called for a drug dog, and then the officer made all the ordinary traffic-stop inquiries. All the while, Martinez talked about his prior encounters with law enforcement. The dog arrived 38 minutes later and alerted to narcotics, and a search discovered THC wax in the vehicle.
Martinez is a frequent flyer in our office, and we indicted him for state-jail possession of THC. His defense attorney filed a suppression motion, and we had an ordinary suppression hearing in which he argued that the stop was unduly prolonged without reasonable suspicion or probable cause. Officer Rodriguez’s testimony made up most of the evidence. Ultimately the trial court sided with the defendant and suppressed all the physical evidence in the vehicle, which was a deathblow to the case.
Lucky for me, a suppression issue is one of several orders the Code of Criminal Procedure specifically designates as appealable by the State.[2] When the trial court issues one of those orders, prosecutors need to move quickly. While a defendant can wait to appeal until after the final verdict, the State must file notice of appeal within 20 days of the appealable order or waive the issue.[3] I did just that, and the case was set for briefing in the 11th Court of Appeals.
Making a good record
Before diving into the appeal, it’s important to discuss what the State can do during the hearing to make it easier on the appellate attorneys. If you’re in a small office like mine, you may well be your own appellate attorney!
At the hearing, the trial judge is likely to make a lot of assumptions about the circumstances of the case and focus on the issue he believes to be most salient. If you lost a good stop like I did, that means the trial court focused on the wrong facts and the wrong issues to ultimately reach the wrong decision, basing it on the framework the defense attorney laid out.
It can be useful at the hearing, and it is especially helpful on appeal, to broaden the scope of the evidence. Wherever evidence is lacking, the appeals court will backfill those gaps by making extremely generous inferences in favor of the trial court’s ultimate ruling, including the inference that the trial court disbelieved the officer’s testimony.[4] Appellate courts will never reverse a trial court for failing to consider evidence that was not presented.
What evidence is particularly salient? Objective evidence that establishes relevant facts is invaluable because it narrows the issue and supports the testimony of the officer, whom the trial court is entitled to disbelieve. In Martinez, I presented evidence of body camera recordings, dash camera recordings, and the call sheet detailing the exact time the stop began, the time the drug dog was called, and the time that dog arrived. These records made many important facts indisputable, such as how long the initial investigation took, how long the canine unit took to arrive, and everything the defendant and Officer Rodriguez said.
By presenting overwhelming evidence of what was said, what was done, and when, prosecutors can narrow the issue to a matter of law rather than a factual dispute. While the trial court can rely on deference to findings of fact, conclusions of law are reviewed de novo,[5] and de novo review means the State gets to run the whole thing back from the beginning.
Findings of fact and conclusions of law
The first thing prosecutors should do after filing timely notice of appeal is to ask the judge for findings of fact and conclusions of law, which we are entitled to receive.[6] Absent these, the reviewing court will presume the findings and conclusions most consistent with the ultimate decision, giving the trial court the benefit of the doubt that it applied the correct legal analysis. Asking for written findings of fact and conclusions of law will commit the trial court to its actual reasoning and provide the State with a roadmap of how to attack its decision.
The trial court is entitled to write its own findings from scratch, but as with any order, it will likely ask for proposed findings from the victorious party and adopt those with few edits. In Martinez, that is exactly what happened: The trial court instructed the defense attorney to submit a proposed order and adopted it with no changes. The final order contained some exceptional holdings, such as:
“The time proximity between the end of the traffic investigation and the arrival of the canine was a per se unreasonable and illegal detention under the Fourth Amendment to the United States Constitution.” (emphasis mine)
“There were no separate articulable facts supporting reasonable suspicion or probable cause of any other crime apart from the traffic infraction to allow the detention to continue after the conclusion of the traffic investigation.”
The former references a per se standard that has been squarely rejected,[7] and the latter presented me with the easy objective of finding a single articulable fact supporting reasonable suspicion.
I’ll further note that two conclusions of law, including the second conclusion quoted above, were listed as findings of fact. It pays to read critically and point out these incorrect categorizations—the 11th Court agreed with my suggestion and sorted them over to conclusions of law, subjecting them to de novo review.[8]
The findings of fact and conclusions of law in Martinez weren’t unusual. When prompted to write the story of their victory, defense attorneys may be inclined to write their win into big, unequivocal conclusions of law. The findings of fact are likely to be perfunctory and leave plenty of wiggle room for the State to write up an argument. What’s highly unlikely is that they will be drafted to mirror the caselaw perfectly and award the defendant a narrow victory on a perfectly curated set of facts. Read them closely.
Writing the brief
Once the State has filed notice and identified issues on appeal, the next step is to write the brief. Unlike the usual response briefs we file to defend convictions, a brief on a State’s appeal is a direct attack on the trial court’s ruling. Resist the temptation to reproduce all the arguments from the initial hearing; instead, zero in on the specific conclusions of law the trial court got wrong and hammer them directly. If the trial court erred on multiple conclusions, as it did in Martinez, address each individual issue that could independently support a reversal so the reviewing court has several options for how to award the State a victory.
When I say “directly,” I mean it. In my first point of error, the subheading quoted the trial court’s findings of fact verbatim: “The trial court erred in holding that ‘there were no separate articulable facts supporting reasonable suspicion or probable cause of any other crime apart from the traffic infraction.’” Framing the issue as such sets the bar at identifying any single articulable fact in the record which does support reasonable suspicion.
Don’t settle for just one, though. While it pays to be direct in identifying the error, it also pays to pile on as much evidence as we can to contradict the trial court’s finding. In my case, I cited the following:
1) The officer was aware that Martinez had a history with narcotics.
2) Martinez had pulled up to a gas pump with his tank on the wrong side of the vehicle.
3) Martinez exited the vehicle immediately and closed the door behind him.
4) Martinez immediately changed the subject of the stop to discuss a prior arrest.
5) Martinez was not the registered owner of the vehicle he was driving and could not explain the discrepancy.
6) When asked to roll down his windows, Martinez refused, claiming that doing so would prompt the officer to call a drug dog.
For every point, be sure to cite to another court that did consider the evidence as supporting reasonable suspicion, and wherever possible provide precise timestamps in any video evidence admitted. And of course, remind the appellate court that while it defers to the trial court as to what the facts were, its determination as to whether those facts were enough to support reasonable suspicion (or probable cause) must be made de novo.[9]
My second point of error involved a glaring misstatement of the law, wherein the trial court held there was a per se standard for the permissible amount of time to wait on a drug-sniffing dog. The U.S. Supreme Court has “expressly rejected the suggestion that [it] adopt a hard-and-fast time limit for a permissible Terry stop.”[10] When confronted with a conclusion of law so obviously opposed to the caselaw, be direct: Place binding caselaw front and center. While paraphrasing frequently makes for better writing, in this particular circumstance, a direct quote like the one above says it better than anything else a prosecutor could write.
When delay has been raised as the basis for suppression, after identifying the relevant law, the next step should be to dig for similar cases applying the standard. In Martinez, the canine unit took 38 minutes to arrive. To show that this delay was reasonable, I cited a plethora of other appellate court holdings endorsing similar lengths of time, ranging from 40 to 90 minutes. This is one of the rare occasions where a string-cite can be highly persuasive—remind the appellate court that its sister courts have sided with the State’s position time and time again.
The appellate court’s decision
A year after filing my brief, I was surprised this September with an opinion from the 11th Court containing the words “reverse and remand”—frightening words for any prosecutor. This time, however, those words meant a win for the State and a lot of cheers and high-fives in my office.
In a rare published opinion, the 11th Court in Martinez provides a helpful application of current traffic-stop law. In its holding, the Court reiterated that determinations about whether a particular set of facts comprise reasonable suspicion are reviewed de novo.[11] Not directly stated is another useful detail: Those facts which were explicitly supported by uncontroverted testimony or video, and not resolved to the contrary in the findings of fact, were weighed by the appellate court in making the reasonable suspicion determination.[12] This rationale from the Court further emphasizes that we as prosecutors have much to gain from admitting plentiful evidence at suppression hearings, even if we know the trial court is unlikely to take the time to review every video from beginning to end. The timestamps we note for important video details in the brief will make it easier on the reviewing court; in Martinez, one of the timestamps I provided even made it into the opinion.
This specific opinion is only one more on a growing pile of affirmations that there is no specific time limit to wait on a canine unit. Unlike most of those cases that a Westlaw search will find, however, the 11th Court in this case was willing to create binding authority for the proposition that 38 minutes is, in fact, not necessarily too long a wait.
In addition to further discussing the generally accepted legal standard for calling in canine units for traffic stops, the 11th Court added another useful tidbit for rural prosecutors: The Court acknowledged that smaller and more rural law enforcement agencies face additional difficulty in using specialized resources, such as canine units.[13] Those resources may need to be shared between departments and travel between jurisdictions, causing reasonable delay. Beyond that direct justification, this acknowledgment suggests that in handling these suppression issues, it can be helpful to think outside the box to explain why law enforcement was delayed. I suspect our officers will frequently have good reasons, and those reasons will make for stronger arguments in suppression hearings to come.
Beyond the useful holdings, favorable rulings on State’s appeals also remind trial courts that ruling against the State isn’t an easy way out of making tough decisions—that siding with the defense on contentious issues won’t necessarily prevent an appeal. That reminder may encourage a judge to double-check the law before sinking a case at the next suppression hearing.
Conclusion
As prosecutors, we rarely think about appealing bad orders. For something like a suppression order that can blow up an entire case, however, the State’s appeal is a tool every prosecutor should be aware is in our arsenal. Next time you find yourself fuming at a trial judge for getting it all wrong on a suppression issue, I hope you’ll remind the judge that the State can appeal too.
Endnotes
[1] State v. Martinez, No. 11-20-00144-CR, 2021 WL 3919778 (Tex. App.—Eastland 2021, no pet. as of 9-16-2021).
[2] Tex. Code Crim. Proc. Art. 44.01.
[3] Id.
[4] See, e.g., State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
[5] Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018).
[6] The trial court is required to provide findings of fact and conclusions of law upon request. State. v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006).
[7] United States v. Sharpe, 470 U.S. 675, 686 (1985).
[8] Martinez, at *4.
[9] Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011).
[10] United States v. Sharpe, 470 U.S. 675, 686 (1985).
[11] Martinez at *4.
[12] Martinez at *5.
[13] Martinez at *9 (citing Parker v. State, 182 S.W.3d 923, 924 (Tex. Crim. App. 2006).