author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    John Benjamin POOL, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00094-CR.
    Court of Appeals of Texas, Waco.
    Dec. 15, 2004.

      Damara H. Watkins, Corsicana, for appellant.
    Steve A. Keathley, Navarro County Dist. Atty., Corsicana, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   MEMORANDUM OPINION

FELIPE REYNA, Justice.

Based upon an informant’s tip and suspicious activities observed at John Pool’s residence, officers obtained a search warrant and found methamphetamine and items used in the manufacture of methamphetamine. Pool was arrested and filed a motion to suppress the evidence alleging that an illegal warrantless search provided the basis for the search warrant. Pool’s motion was denied, and he pleaded guilty, subject to the appeal of his motion. Because the officers engaged in an improper warrantless search, and because the affidavit for the search warrant does not establish probable cause once the facts gained from the warrantless search are omitted, we reverse.

BACKGROUND

An unknown confidential informant told Captain Jimmy Spencer that he had observed several people walking around Pool’s house, along with several propane tanks in Pool’s yard. The confidential informant also told Spencer that Pool was “probably cooking methamphetamine.”

Spencer and officers Todd Henkle, Michael Turner, and Brad Gannon decided to commence a “knock and talk” with Pool, where they would knock at Pool’s door and initiate a conversation with him in an attempt to corroborate the informant’s information. Upon arriving at Pool’s, Turner walked to the front door, knocked, and Pool answered. Turner told Pool about the information they had received concerning the manufacturing of methamphetamine and asked if they could search the premises. Pool initially gave his consent to search, yet immediately retracted it. While at the front door, Turner smelled a “chemical” odor.

After Pool answered the door, Spencer and Gannon traversed around a sixteen-foot-long partial fence attached to the side of Pool’s mobile home and entered Pool’s backyard. Once in the backyard, Spencer faintly smelled anhydrous ammonia, a chemical used in the manufacture of methamphetamine. At the back of the house, the officers noticed four propane tanks. A hose was attached to one of the tanks with blue oxidation around the valve, indicating to the officers the presence of anhydrous ammonia. Also, the officers could smell anhydrous ammonia emanating from the tanks. Meanwhile, Turner observed in plain view coffee filters, a cooler with duct tape, and a container with an unknown liquid next to a beige travel trailer. At this point, Spencer left to obtain a search warrant.

A search warrant was granted, and after finding methamphetamine and items used in the manufacture of methamphetamine, the officers arrested Pool. Pool filed a motion to suppress the evidence alleging that it was obtained in violation of his constitutional privilege to be free from unreasonable searches and seizures. After the trial court denied Pool’s motion, Pool pleaded guilty, subject to the appeal of the denial of his motion and was sentenced to six years’ incarceration.

Pool argues that the trial court erred in denying Pool’s motion to suppress because (1) the affidavit for the search warrant does not establish probable cause; (2) the search warrant was based on information gained from a prior illegal warrantless search in violation of the Fourth Amendment to the United States Constitution; and (3) in violation of article I, section 9 of the Texas Constitution.

THE WARRANTLESS SEARCH

Pool argues in his second and third issues that the trial court erred in denying his motion to suppress because the search warrant was based on evidence obtained during a warrantless search in violation of the United States and Texas Constitutions, respectively. Pool argued these points to the trial court in his motion to suppress, and has preserved this issue for review. See Tex.R.App. P. 33.1(a)(1).

The Court of Criminal Appeals has recently clarified its position, as described in Guzman, on the standard of review applicable to motions to suppress.

In Guzman, we relied in part on Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In Ornelas, a case involving a warrant-less search, the Supreme Court held that appellate review of reasonable suspicion and probable cause should be conducted de novo. Ornelas, 517 U.S. at 697-98, 116 S.Ct. 1657, 134 L.Ed.2d 911. However, the Supreme Court went on to distinguish its prior holding in Gates, that a magistrate’s decision to issue a search warrant should be given deference and not reviewed de novo. The Supreme Court reiterated that the distinction between the standards of review applied to the determination of probable cause in warrant and warrantless searches was based on the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant and the need for an incentive to encourage police to use the warrant process. Ornelas, 517 U.S. at 698, 116 S.Ct. 1657, 134 L.Ed.2d 911.
Guzman merely articulated a general principle for determining when an issue should be reviewed de novo and when it should be reviewed deferentially. The standard to be applied to the review of a magistrate’s determination of probable cause in issuing a search warrant is an exception to the general rule set out in Guzman. It is an exception mandated by the Fourth Amendment.
We recognize the distinction between the standards of review applicable to warrantless searches and searches pursuant to a warrant and reaffirm that a magistrate’s determination to issue a warrant is subject to the deferential standard of review articulated in Gates and Johnson.

Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004).

We interpret this language to mean that the de novo standard articulated in Guzman is appropriate when reviewing a warrantless search, while a deferential standard is used when reviewing a search pursuant to a warrant. Because Pool’s issues require review of both a warrantless search and a search pursuant to a warrant, we will review the issue of whether a warrantless search occurred using the Guzman standard and will give appropriate deference to the magistrate when reviewing Pool’s first issue regarding the search warrant.

Therefore, in regards to Pool’s second and third issues, we review the denial of a motion to suppress giving almost total deference to the trial court’s determinations of historical facts and decisions involving mixed questions of law and fact if the resolution of those questions depends on an evaluation of credibility and demean- or. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). If the application of the law to facts is not dependent on an evaluation of credibility and demeanor, then our review is de novo. Id.; Brown v. State, 115 S.W.3d 633, 635 (Tex.App.-Waco 2003, no pet.).

The Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution protect against unreasonable searches and seizures. U.S. Const, amend. IV; Tex. Const, art. I, § 9. This protection includes both the home and the curtilage of the home. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Crim.App.1979). “Curtilage” is the land immediately surrounding and associated with the home. Gonzalez, 588 S.W.2d at 360.

The Supreme Court has promulgated certain factors for an appellate court to consider when resolving curtilage questions. United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326, 334-35 (1987). The reviewing court should consider (1) the proximity of the area claimed to be the curtilage of the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observations by people passing by. Id.

The State argues that Pool’s backyard does not meet this criteria. The record shows that Pool lives in a mobile home in a heavily wooded plot off of a secluded private road. A no-trespassing sign is posted at the beginning of his driveway. Attached to the side of Pool’s home is a six-foot high fence that extends approximately sixteen feet horizontally from the home. The backyard is not visible from the street, nor could the officers see the backyard from them position at Pool’s front door.

The State argues that because the backyard is not enclosed by the fence, it is not curtilage, and therefore not protected by the Fourth Amendment. Without a fence, the State argues, the owner has not taken steps to ensure that the area is free from the observations of people passing by. Thus, any passersby could walk to the rear of the home and observe the evidence there in plain view.

While mindful of the lack of complete enclosure, we are loathe to hold, as the State suggests, that residents failing to erect a complete enclosure around their backyard no longer enjoy Fourth Amendment protection in them backyard. This type of bright line rule would restrict Fourth Amendment protections to only those capable of affording such enclosures, while those incapable lose privacy interests in their backyards.

Moreover, the absence of an enclosure is only one of the four factors we must consider. The presence of the partial fence, the no-trespassing sign, and the inability to observe the backyard from the street are indications that Pool attempted to protect his backyard from people passing by. Furthermore, the area Pool claimed to be his backyard was immediately outside and adjacent to his back door, which is the place the officers discovered the suspicious evidence. Accordingly, we find that the area of Pool’s backyard at issue is curti-lage and therefore constitutionally protected. See Gonzalez, 588 S.W.2d at 360; State v. Peyrani, 93 S.W.3d 384, 387-88 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); Johnson v. State, 47 S.W.3d 701, 706 (Tex.App.-Houston [14th Dist.] 2001) rev’d on other grounds, 84 S.W.3d 658 (Tex.Crim.App.2002) (reversing the lower court because appellant’s notice of appeal did not substantially comply with Tex. R.App. P. 25.2(b)(3)).

For a warrantless search onto curtilage to be justified, the State must prove that there was probable cause at the time the search was made, and that there were exigent circumstances that made it impractical to procure a warrant. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991); Conde v. State, 135 S.W.3d 252, 255 (Tex.App.-Waco 2004, no pet.).

The State does not argue that the officers had probable cause to enter the backyard, or that given probable cause, exigent circumstances existed. They argue that the officers went into the backyard for their safety to secure the area so as not to be surprised by unknown potentially-armed persons. In that respect, the officers’ actions resemble that of a protective sweep, authorized in certain instances when probable cause is absent. The State cites no authority for this position, nor are we aware of any authority that holds that, in the absence of probable cause, a warrantless entry into a home is justified as a protective sweep. See Johnson, 47 S.W.3d at 706-07.

In analyzing the existence of probable cause, we find Johnson v. State illustrative. In Johnson, an unknown informant told Officer Bowdoin that he had looked through Johnson’s backyard fence and saw him manufacturing crack cocaine. Id. at 705. Bowdoin, along with Officer Gordy, went to Johnson’s residence to investigate. Id. The officers went to the back of the house and looked through the slats of Johnson’s fence. Id. From this vantage point they could see into Johnson’s window and observed a triple beam balance scale and a box of baking soda. Id. Gordy went to the front of the house to initiate a “knock and talk” while Bowdoin positioned himself outside the gate to the backyard. Id. Bowdoin saw a man in the house look out a window, appear surprised, and then dart away from the window. Id. Bowdoin, stating that he was concerned for the officers’ safety, entered the backyard. Id. He looked through the glass patio door and saw crack cocaine. Id. Subsequently, Bowdoin entered the house and arrested Johnson. Id.

The Fourteenth Court of Appeals found that Bowdoin had no probable cause to justify the entrance into Johnson’s backyard. Id. at 707. The Court reasoned that the scale and the baking soda were both legal items, neither of which corroborated the informant’s information. Id. Also, the fact that Johnson appeared surprised and darted away from the window was not illegal and not unusual given the late hour. Id.

Similarly, in this instance the only information the officers possessed that could justify an intrusion into Pool’s backyard was the unknown informant’s tip that Pool was “probably” cooking methamphetamine, and the chemical odor smelled by Turner at Pool’s front door. The chemical smell is not defined, and as such cannot be said to be illegal. Also, the smell of ammonia, itself a legal substance, was not discovered until Spencer had already entered Pool’s backyard. We find that this information does not constitute probable cause to justify the officers’ entry into Pool’s backyard. Because there is no probable cause, any exigent circumstances would not justify a warrantless entry. See McNairy, 835 S.W.2d at 106.

In the alternative, the State argues that the officers were justified in entering Pool’s backyard because it is not unusual for an officer to go to the back door to contact the resident. Officers have the same right as any invitee to enter onto residential property and walk up to the front door. Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex.Crim.App.1995); Bower v. State, 769 S.W.2d 887, 897 (Tex.Crim.App.1989). In addition, police have the right to go to the back door to contact a resident, but only after they have first tried the front door and have received no answer. Gonzalez, 588 S.W.2d at 359 (citing Long v. State, 532 S.W.2d 591, 594-95 (Tex.Crim.App.1976) (holding that an officer’s attempt in contacting the inhabitants of a house by knocking on the back door after receiving no response at the front door is not a warrantless search)); Peyrani, 93 S.W.3d at 387-88 (finding an unconstitutional warrantless search when officers, after months of surveillance at the residence, and after finding marijuana in a van leaving the residence, failed to knock at the front door and instead walked around to the backyard after hearing voices behind the house).

In this case, Pool answered Turner’s knock at the front door and was talking to him as the other officers went around to the backyard. Because the resident of the house answered, there was no need to go to the backyard and knock on the door. Gonzalez, 588 S.W.2d at 359. Therefore, we sustain Pool’s second and third issues.

THE SEARCH WARRANT

Pool argues in his first issue that the trial court erred in denying his motion to suppress because the affidavit for the search warrant does not establish probable cause. As stated above, we review a trial court’s decision on a motion to suppress based upon a search pursuant to a warrant under a deferential standard, giving deference to the magistrate that reviewed the affidavit for the search warrant. Swearingen, 143 S.W.3d at 811.

A search warrant may not issue unless sufficient facts are first presented to a magistrate upon which he may conclude that there is probable cause to believe the object of the search is probably on the premises. Tex.Code Cmm. PROC. Ann. art. 18.01(b) (Vernon Supp.2004 & 2005). These facts must be contained in an affidavit accompanying the application for the warrant. Id. art. 18.01(c). When reviewing a magistrate’s decision to issue the warrant, we are confined in our analysis to the four corners of the affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App.2004). However, the magistrate is permitted to draw reasonable inferences from the facts and circumstances alleged, and must interpret the affidavit in a common-sense and realistic manner. See Lagrone v. State, 742 S.W.2d 659, 661 (Tex.Crim.App.1987).

Therefore, looking at the totality of the circumstances, and giving deference to the magistrate, we must assess whether the affidavit contains sufficient facts to conclude that there is a fair probability that contraband or evidence of a crime will be found at the place to be searched. Price v. State, 143 S.W.3d 158, 160 (Tex.App.-Waco 2004, no pet.) (citing Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App.1996)); Cardona v. State, 134 S.W.3d 854, 858 (Tex.App.-Amarillo 2004, pet. ref'd).

The facts in the affidavit are as follows:

■ Spencer, the affiant, had been receiving information for the past two months from a confidential source that there was a methamphetamine lab at Pool’s residence.
■ On the day the search warrant was issued, Spencer received information from the confidential source that several people were walking around outside Pool’s residence, that there were propane tanks in Pool’s yard, and that Pool was probably cooking methamphetamine.
■ Officer Turner knocked on Pool’s door. As Spencer and Gannon were walking to the back door, Spencer could smell the faint smell of Anhydrous Ammonia coming from the yard.
■ As Pool opened the door, Turner could smell the odor of chemicals coming from inside the home. Pool shut the door behind him and locked it.
■ For officer safety, Spencer and Gan-non when to the back door. There they noticed a small propane tank beside the back door. They could plainly see blue oxidation on the valve. They could also smell the odor of anhydrous ammonia emanating from the tank. Spencer knows from experience and training that anhydrous ammonia is one of the necessary chemicals used in manufacturing hamphetamine.
■ Turner later saw in plain open view near a beige Fleetwood travel trailer, two propane tanks, a yellow cooler with duct tape sealing the lid, coffee filters, and a container with an unknown liquid.

Some of the evidence contained in the affidavit was obtained illegally in the warrantless search of Pool’s backyard. Yet, this does not automatically render the search warrant invalid. In this situation, we must put aside the illegally obtained evidence from the affidavit and evaluate the affidavit for probable cause using the remaining lawfully-acquired evidence. Castillo v. State, 818 S.W.2d 803, 805 (Tex.Crim.App.1991); Martin v. State, 67 S.W.3d 340, 343 (Tex.App.-Texarkana 2001, pet. ref'd).

The propane tanks with blue oxidation on the valve, and the smell of anhydrous ammonia associated with them were found in the illegal warrantless search and will not be considered. Also excluded is the faint smell of ammonia that Spencer smelled as he was going to the back door.

This leaves the following information to consider: the confidential informant, the chemical smell coming from the front door, two propane tanks, a yellow cooler with duct tape sealing the lid, coffee filters, and a container with an unknown liquid.

The Confidential Informant

Pool argues that the confidential informant’s tip should be given no weight as the affidavit supplies no information regarding the informant’s reliability or the basis for his knowledge. The reliability of an informant is important when the information is used to justify a search warrant. Lilly v. State, 119 S.W.3d 900, 903 (Tex.App.-Eastland 2003, pet. ref'd) (citing Torres v. State, 552 S.W.2d 821, 824 (Tex.Crim.App.1977)). The affiant need not include specific details of the informant’s reliability. Torres, 552 S.W.2d at 824. All that is required is a statement that the informant has provided information in the past regarding narcotics trafficking, and that information proved correct. Blake v. State, 125 S.W.3d 717, 726 (Tex.App.Houston [1st Dist.] 2003, no pet.) (citing Torres, 552 S.W.2d at 824). Such a statement, when interpreted by the magistrate in a realistic and common-sense manner, not only indicates the informant’s reliability, but also his familiarity with controlled substances. Id.

The affidavit for the search warrant has no such information. The affidavit states that Spencer had been receiving information for the past two months that there was a lab located at Pool’s residence, but does not give any information as to whether the informant had given rehable information in the past. Nothing in this statement allows an inference that the informant is reliable. Furthermore, there is no basis for knowing whether the informant could identify methamphetamine, or whether he was familiar enough with the process of creating methamphetamine that he would recognize the presence of a lab. See Cardona v. State, 134 S.W.3d 854, 859 (Tex.App.-Amarillo 2004, pet. ref'd).

The informant’s statement that Pool was “probably cooking methamphetamine” lends nothing substantial to the informant’s reliability. On the contrary, it calls into question his familiarity and knowledge of the manufacturing process and the drug itself. Nothing in both of these statements provides a reasonable basis for the officer’s reliance on the informant. See Davis v. State, 144 S.W.3d 192, 200 (Tex.App.-Fort Worth 2004, no pet.) (finding no probable cause because the affidavit lacked information that would tend to show that the informant’s information was reliable). Nor could the magistrate, even when interpreting the information in a common-sense manner, infer that the informant was reliable. See Blake, 125 S.W.3d at 726.

Without sufficient information of reliability, we are left with no possible inference that the statement is true. For instance, based on the informant’s information that Pool was probably cooking methamphetamine, that there were several people walking outside of Pool’s residence, and that there were propane tanks in the yard, the officers could have walked into a backyard cook-out, the nature of which consists of people being outside using propane tanks to fuel gas grills. Therefore, without sufficient information from which to infer reliability, the informant could be no more than a disgruntled neighbor seeking to disrupt a barbecue because he was not invited.

With no basis of reliability or knowledge of controlled substances, the informant’s statement is similar to that of an anonymous tip because both are characterized by an unsubstantiated statement. State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App.2002). A mere anonymous tip, standing alone, does not constitute probable cause. Id. Therefore, the informant’s statement carries little weight by itself.

The Chemical Smell

Spencer in the affidavit stated that Turner smelled the odor of chemicals coming from the front door. This vague statement is capable of such broad interpretation as to render it meaningless. “Chemicals” could many anything from bug spray to paint to bleach, all of which contain chemicals, are aromatic, and are not illegal but common household items. The affidavit also states that “these type chemicals are used in the illegal manufacture of methamphetamine,” yet does not describe the chemicals by name or whether these chemicals were the same chemicals smelled at the front door. If the smell of marijuana, itself an illegal substance, taken alone, is not sufficient to establish probable cause, then the smell of ill-defined, potentially legal chemicals should not carry much weight. See Steelman, 93 S.W.3d at 108. However, while this isolated statement would carry little weight, it does slightly corroborate the informant’s tip because the affidavit does generally state that chemicals are used in the manufacture of methamphetamine. Therefore, we will give this fact some weight.

Other Various Items

The affidavit also lists two propane tanks, a yellow cooler with duct tape sealing the lid, coffee filters, and a container with an unknown liquid as being found in plain view by Turner. None of these items are illegal. Nor is there any information that links these items to the manufacture of methamphetamine. Without further information, there is no basis to infer that these legal items are being used in an illegal way. Viewed in isolation, these items carry no weight. Likewise, when these items are analyzed in conjunction with the informant’s tip and the chemical smell, they carry no weight because there is nothing in the affidavit to connect these items to the manufacture of methamphetamine.

Analysis

We are required to review the affidavit for probable cause by evaluating the facts in the affidavit under the totality of the circumstances and by giving appropriate deference to the magistrate’s decision. Swearingen, 143 S.W.3d at 811; Price, 143 S.W.3d at 160. Yet, even doing so, the affidavit does not contain sufficient facts to lead to a conclusion that it is more probable than not that Pool was engaging in the activity of manufacturing methamphetamine. The affidavit contains only an informant’s tip with no indication of reliability, a “chemical” smell, and various legal items with no connection to the manufacture of methamphetamine. Taken collectively, these facts are insufficient to establish that probable cause existed for the issuance of a warrant to search Pool’s residence. See Lowery v. State, 98 S.W.3d 398, 402 (Tex.App.-Amarillo 2003, no pet.) (finding “too many gaps are to be filled with guess, hope, and surmise when attempting to infer” from the facts in the affidavit probable cause that the appellant was making drugs. “And, whatever discretion to which the trial court is entitled cannot be used to fill them.”).

Therefore, after excluding the illegally seized evidence and after analyzing the remaining facts in the affidavit under the totality of the circumstances and giving deference to the magistrate, we conclude that the magistrate did not have a substantial basis for finding that a search would uncover evidence of a crime. See id. Consequently, the trial court erred by denying Pool’s motion to suppress. We sustain Pool’s first issue.

CONCLUSION

Because we have concluded that the trial court should have sustained Pool’s motion to suppress, we sustain Pool’s issues. Accordingly, the judgment of the trial court is reversed and the case is remanded to the trial court for disposition in accordance with this opinion.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

A citizen reports a contraband drug manufacturing lab. Officers go to investigate. The officer that goes to the door is met by a man and a “chemical” smell. One of the officers prepares an affidavit which contains this information plus additional information. The affidavit is presented to a magistrate. A search warrant is issued. The house is searched. A meth lab is seized. The man is charged. The man is convicted.

When you boil it all down to its essentials, that is what is presented in this case. You can embellish it. You can identify certain things that could have been done better. You can identify some things that did not need to be done. You may even be able to say some things that were done, were done wrong. But what really matters is that an officer smelled the chemical odors generated by a meth lab coming from a location which a citizen had reported was being used as a drub lab, and the officer obtained a search warrant. This is not an unreasonable search and seizure in violation of the Fourth Amendment.

The analysis by the majority is the polar opposite of a proper application of the standard of review, a review giving deference to the trial court’s determination of probable cause. Swearingen v. State, 143 S.W.3d 808, 811 (Tex.2004); see also Ornelas v. U.S., 517 U.S. 690, 698, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Illinois v. Gates, 462 U.S. 213, 234-37, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). I may have even been misguided into such an elemental analysis in the past. But here, in this case, it is apparent that a review of a search warrant, and giving appropriate deference to the trial court, is not done the way the majority has performed it. Our review is not performed by an analysis of each phrase and giving it weight in favor of the issuance of the warrant or not. Done in this fashion, things that are each individually legal would never add up to probable cause. How many times have we been told that things that are legal, when reviewed in context of the situation in which they occur, may lead a person to the conclusion that there is a reasonable basis upon which to conclude that illegal activity is occurring? This is particularly true of the observations by trained law enforcement officers, and even more so of those working with a specialization in contraband drug manufacturing.

If we step back from an over-analysis of the details of the affidavit, it is entirely logical for a magistrate to conclude*that illegal activity related to the manufacture of drugs was occurring at the location. We sit in our offices, pouring over case books and briefs for hours to conduct this review. In the real world, the one where this decision was made, officers waited around a house they suspect contains a meth lab. No officer knows, and the magistrate certainly does not know, whether the lab, if any, was left cooking, or whether it was stabilized and/or stopped before the people exited the house.

We make the classic mistake of taking the affidavit apart one sentence, one phrase, one word at a time. That is not what it means to conduct a deferential review of a magistrate’s determination of probable cause.

Thus, this case is not as complex as the court makes it. The legal issue presented is whether there was probable cause upon which to base the issuance of the search warrant. The only factor which adds any complexity is that the defendant is arguing that some of the information included in the affidavit was illegally obtained and therefore could not properly be included in the affidavit to obtain the search warrant. The first, simple, and direct analysis is to remove from the affidavit the challenged information and determine whether what remains would support the issuance of the warrant. See Castillo v. State, 818 S.W.2d 803, 805 (Tex.Crim.App.1991). I would hold that it would, affirm the trial court’s denial of the motion to suppress the evidence, and affirm the conviction. Because the Court reverses the judgment of conviction, I respectfully dissent.

      . The affidavit for the search warrant does not state at what point Spencer smelled the ammonia. The affidavit states only that the ammonia was smelled as the officers were walking to the back door. However, in the hearing on the motion to suppress, Spencer testified that he did not smell the ammonia until he was already in the backyard.

      . Situations authorizing protective sweeps without probable cause include: (1) Officers may do a protective sweep in a house as a search incident to an arrest when they are lawfully in the house executing an arrest warrant, and there is a reasonable belief that dangerous persons are in the house. Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276, 286 (1990); (2) Officers may perform a protective sweep of a car’s interior when there is a reasonable belief that the car’s occupant is dangerous. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201, 1219 (1983); and (3) Officers may detain a person on the street and in the interest of safety perform a pat down search for weapons when the officers have a reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 24-25, 88 S.Ct. 1868, 1881-82, 20 L.Ed.2d 889, 908 (1968).

      . We note that the magistrate who reviewed the affidavit for probable cause also presided over Pool’s motion to suppress.

      . There is little doubt that on another day I will have to revisit the expansive discussion on other issues, including further analysis of the standard of review. But I will conserve my resources until those issues could make the difference in a particular case. In this one, they should not.


source: Caselaw Access Project

author: FELIPE REYNA, Justice.

license: Public Domain

text:
    Vernon Joe JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00153-CR.
    Court of Appeals of Texas, Waco.
    Dec. 15, 2004.

      Mark Russell Yanis, Houston, for appellant.
    Charles A. Rosenthal Jr., Harris County Dist. Atty., Houston, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Vernon Joe Johnson of murder and assessed his punishment at sixty years’ imprisonment. Johnson contends in two issues that (1) the court erred by denying his request for a self-defense instruction in the charge, and (2) he received ineffective assistance of counsel at trial. Because the evidence raises the issue of self-defense, we will reverse and remand.

After Johnson and his girlfriend Niko-wana Turner separated, he moved out of her apartment. The next month, Turner began a relationship with the victim in this case, Kenneth Pope, who at some point moved into her apartment. Johnson later met Pope because of his continued contacts with Turner and their two sons. Johnson’s and Pope’s relationship soon deteriorated because of Johnson’s disagreements with Turner about their two sons.

On the day of the fatal shooting, Johnson and Pope had several verbal altercations. Johnson and a friend testified that Pope displayed a handgun during one of these incidents. Johnson testified that he then got a handgun for protection. He later went to Turner’s apartment to talk with Turner about his dispute with Pope. Johnson “just wanted to tell her to tell [Pope] to leave [him] alone.” Johnson testified that he did not know that Turner and Pope were living together at that time.

When Johnson arrived at Turner’s apartment complex, she was not in her apartment, so he walked around the area looking for her. He saw her getting into her father’s ear, which he thought her father was driving at the time. Johnson approached the car to talk to her. Johnson testified that he then discovered that Pope was driving. Pope and he exchanged words, then, according to Johnson, Pope pointed a gun. Johnson started backing away slowly because he feared Pope would shoot him in the back. Pope opened the door, and Johnson started shooting at him. As Johnson described it, “I just snapped. I just kept shooting. I just kept shooting.”

Turner disputed Johnson’s testimony. According to Turner, Johnson had earlier threatened to kill Pope. She testified that Johnson ran up to the car and began shooting Pope at point-blank range without provocation. She denied that Pope had a gun, though she conceded on cross-examination that there were two handguns in the car. A friend of Turner’s who witnessed the shooting testified to virtually the same facts as Turner.

Johnson contends in his first issue that the court erred by denying his request for a self-defense instruction in the charge. The State responds that Johnson was not entitled to the requested instruction because he went to discuss his differences with Pope while illegally carrying a handgun or, in the alternative, that any error in denying the instruction is harmless. - Because Johnson presented sufficient evidence to raise self-defense and because the harmless-error contentions presented by the State all relate to the credibility of Johnson’s defense, we will sustain Johnson’s first issue.

“A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001). The purpose of this rule is to ensure “that the jury, not the judge, will decide the relative credibility of the evidence.” Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999); Prenger v. State, 108 S.W.3d 501, 505 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). We review the evidence in the light most favorable to the defendant to determine whether a defensive issue should have been submitted. See id.

However, even if the evidence when viewed in this light raises a prima-facie defense, no error is shown in the denial of a defensive instruction if the evidence establishes as a matter of law that the defendant is not entitled to rely on this defense. See Dyson v. State, 672 S.W.2d 460, 463-65 (Tex.Crim.App.1984); Williams v. State, 35 S.W.3d 783, 786 (Tex.App.-Beaumont 2001, pet. ref'd). Accordingly, the defendant is not entitled to a self-defense instruction if the evidence establishes as a matter of law that one of the exceptions to self-defense listed in section 9.31(b) applies. Id.; see also Tex. Pen. Code Ann. § 9.31(b) (Vernon 2003).

Thus, the court in Dyson found no error in the denial of a self-defense instruction because the defendant “expressly stated that his intent was to fight his brother” on the occasion in question, and thus, the evidence established as a matter of law that the defendant had provoked the confrontation. See Dyson, 672 S.W.2d at 463-65; see also Tex. Pen.Code Ann. § 9.31(b)(4) (self-defense not justified if defendant provoked the difficulty). In the same manner, the court in Williams found no error in the denial of a self-defense instruction because the defendant intentionally sought out the victim to discuss their differences while unlawfully armed with a handgun. See Williams, 35 S.W.3d at 786-87; see also Tex. Pen.Code Ann. § 9.31(b)(5) (self-defense not justified if defendant seeks out victim to discuss differences while unlawfully carrying a weapon).

It is for the Legislature to define defenses to crimes. See Giesberg v. State, 984 S.W.2d 245, 250 (Tex.Crim.App.1998); Prince v. State, 137 S.W.3d 886, 888 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Accordingly, we construe the statutory defenses applicable to this case as written.

Section 9.31 of the Penal Code defines self-defense. As pertinent to Johnson’s case, section 9.31 provides as follows:

(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.
(b) The use of force against another is not justified:
(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor; or
(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02; or
(B) possessing or transporting a weapon in violation of Section 46.05;

Tex. Pen.Code Ann. § 9.31 (Vernon 2003).

Viewed in the light most favorable to Johnson, the evidence is that Pope had previously threatened Johnson with a gun, that Johnson sought out Turner to seek her help in resolving his differences with Pope, that Pope displayed a handgun when Johnson approached the car to talk with Turner, and that Johnson shot Pope because he thought Pope was about to shoot him.

The State argues that the facts of Johnson’s case are like those in Williams and that the trial court properly denied a self-defense instruction because Johnson was seeking to resolve his differences with Pope and was admittedly unlawfully carrying a handgun. However, Johnson’s case is different from Williams because Johnson sought out Turner, not Pope. Cf. Williams, 35 S.W.3d at 786.

Section 9.31(b)(5) limits the right of self-defense when the defendant seeks out “the other person” (i.e., the victim) to discuss their differences. Tex. Pen.Code Ann. § 9.31(b)(5). We must apply this statute as written. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004); see also Giesberg, 984 S.W.2d at 250; Prince, 137 S.W.3d at 888. Because Johnson testified that he sought out Turner instead of Pope, the evidence does not establish as a matter of law that the limitation of section 9.31(b)(5) applies. Cf. Smith v. State, 66 Tex.Crim. 593, 148 S.W. 722, 726-27 (1912) (defendant entitled to self-defense instruction when he went to discuss his differences with one person and was attacked by another person whom he fatally shot). To the extent that other evidence tends to controvert Johnson’s version of the events, a question is presented for the jury to resolve on this issue. See Ferrel, 55 S.W.3d at 591; Granger, 3 S.W.3d at 38; Prenger, 108 S.W.3d at 505; Williams, 35 S.W.3d at 786.

Because the evidence viewed in the light most favorable to Johnson raises the issue of self-defense, the court erred by denying Johnson’s request for an instruction on this defensive issue. We now determine whether this error requires reversal.

The court denied Johnson’s request for a self-defense instruction. Accordingly, reversal is required if he suffered “some harm” as a result of the denial. Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)). “[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id.

The State contends that Johnson suffered no harm from the denial of a self-defense instruction because he provoked the confrontation with Pope. Although we agree that there is evidence in the record to support the submission of an instruction on the issue of provocation, the evidence does not establish as a matter of law that Johnson provoked the confrontation. Cf. Dyson, 672 S.W.2d at 463-65; Williams, 35 S.W.3d at 786-87.

The issue of who provoked the encounter which resulted in Pope’s death was vigorously contested. Defense counsel illuminated numerous discrepancies in the testimony of the State’s witnesses pertinent to Johnson’s self-defense claim. Although the State highlights the evidence which contradicts Johnson’s self-defense claim, this evidence at best makes the issue a question for a jury to decide. See Ferrel, 55 S.W.3d at 591; Granger, 3 S.W.3d at 38; Prenger, 108 S.W.3d at 505; Williams, 35 S.W.3d at 786.

Because the trial court denied Johnson’s request for an instruction on self-defense, counsel was not able to present this defensive theory to the jury for its consideration.

Accordingly, we hold that Johnson suffered “some harm” from the court’s denial of an instruction on the issue of self-defense. Thus, we sustain his first issue.

Because we have sustained Johnson’s first issue, we need not address his second issue.

We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

      . Section 9.32, which defines when a person is justified in using deadly force to defend himself, is also pertinent to Johnson's case. See Tex. Pen.Code Ann. § 9.32 (Vernon 2003). However, the parties do not dispute that, if Johnson is entitled to a self-defense instruction, he is also entitled to an instruction on the right to use deadly force in self-defense.


author: TERRIE LIVINGSTON, Justice.

text:
    Hugo Alejandro SIERRA, Appellant, v. The STATE of Texas, State.
    No. 2-03-170-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 16, 2004.
    Rehearing Overruled Jan. 20, 2005.

      Richard A. Henderson, Fort Worth, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Helena F. Faulkner, and Alan Levy, Asst. Criminal District At-tys., Fort Worth, for State.
    Panel A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
   OPINION ON REHEARING

TERRIE LIVINGSTON, Justice.

After reconsidering our prior opinion on appellant’s motion for rehearing, we deny the motion, but we withdraw our September 30, 2004 opinion and judgment and substitute the following in their place.

INTRODUCTION

Hugo Alejandro Sierra appeals from his conviction for capital murder. In eleven issues, appellant complains that the trial court erred (1) in overruling his motion to suppress appellant’s confession because it was obtained in violation of article 15.16 of the Texas Code of Criminal Procedure, in violation of article 38.23 of the Texas Code of Criminal Procedure, in violation of the Vienna Convention, and in violation of the state and federal constitutional protections against self incrimination; (2) in overruling appellant’s requested charge to the jury on the voluntariness of appellant’s statement; (3) in overruling appellant’s Texas Rule of Evidence 403 objection to the introduction of autopsy photographs; (4) in overruling appellant’s Batson challenge because all Hispanic male jurors were struck by the State; (5) in overruling appellant’s requested jury charge on accomplice testimony; (6) in overruling appellant’s Texas Rule of Evidence 403 objection to the playing of the 911 tape; (7) in overruling appellant’s motion for a mistrial because the emotional testimony of the murder victim’s widow violated Texas Rule of Evidence 403, the state and federal constitutions, and the code of criminal procedure; (8) in overruling appellant’s motion to declare the automatic life sentence for capital punishment as cruel and unusual punishment; and (9) by denying appellant the right to impeach Martin Esparza with a felony conviction from Mexico. We affirm.

FACTS

On March 23, 2001, appellant, a Mexican national, borrowed a gun from his cousin and a white truck from his cousin’s roommate. Appellant and Heliberto Chi planned to use the truck and gun to commit a robbery at the K & G Men’s store in Arlington, where Chi used to work.

The next afternoon, appellant and Chi went to K & G and “stood around” inside talking to several of Chi’s former co-workers. Appellant and Chi then went out to the parking lot to wait until closing time.

At around 8:45 p.m., Chi left appellant in the truck and went into the store saying that he had left his wallet there. Chi told appellant that he would shoot people if necessary. After pretending to look for his wallet with no luck, Chi acted as though he were leaving and walked toward the front of the store. When he reached the front of the store, he pulled a gun on the three employees while appellant stayed in the parking lot in the truck with the engine running.

At one point, Chi demanded that the employees give him the deposit bag. Armand Paliotta gave it to him, but then pushed Chi and ran toward the front of the store. The two other employees, Gloria Chavez and Adrian Riojas, ran toward the warehouse. First, Chi shot Paliotta, then he went after Riojas and shot him in the back. Chi looked for Chavez, but did not find her because she was hiding in a clothes rack. Paliotta died almost instantly, but Riojas and Chavez survived.

Appellant and Chi fled in the truck, and appellant eventually drove them back to his apartment. There, they divided the money, and appellant left with $500. The next day, appellant returned the truck to his cousin’s roommate and the gun to his cousin. Two of the bullets from the gun were missing, and appellant told his cousin that he lost them.

The police first suspected that appellant might be involved in the robbery and murder because Chi had dated appellant’s sister. When searching for Chi, the police went to appellant’s apartment and arrested appellant on outstanding traffic tickets from Dallas County. After his arrest, appellant signed a written confession regarding his involvement in the robbery and murder. The jury found appellant guilty of capital murder, and the trial court sentenced him to life imprisonment.

MOTION TO SUPPRESS

In his first three issues, appellant complains that the trial court erred in overruling appellant’s motion to suppress his confession to the police.

Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Car- mouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); Harrison v. State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. filed); Best, 118 S.W.3d at 861-62. However, when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

Background Facts Relating to the Motion to Suppress

Police officers arrested appellant at his apartment in Dallas County for outstanding traffic tickets from Dallas County. After the arrest, the police took him to the Arlington Police Department without first taking him to a magistrate in Dallas County. At police department, appellant told the police that “he wanted to be honest, wanted to be truthful, wanted to- talk.” Before the police interrogated appellant, they read him his Miranda rights, and appellant initialed the Miranda warning card. After about ten minutes of interrogation, appellant orally confessed to helping Chi commit the robbery and murder that took place at the K & G.

Detective Tommy LeNoir asked appellant if he would reduce his oral confession to a written statement and appellant agreed. But while writing his confession, appellant could not recall the exact name of the store or its address. To make sure that appellant and the police were talking about the same offense, Detective LeNoir had appellant take him to the K & G Men’s Store in Arlington, where appellant confirmed that it was the correct store. Back at the police station, appellant finished his written confession, edited it, and signed it. The trial court admitted the confession into evidence at trial.

Violation of the Code of Criminal Procedure

In his first issue, appellant complains that the trial court erred by denying his motion to suppress his confession because the police obtained the confession in violation of code of criminal procedure 15.16, which states that the person executing an arrest warrant shall without unnecessary delay take the arrested person before the magistrate who issued the warrant or is named in the warrant, if the magistrate is in the same county where the person is arrested. Tex.Code.CRim. Proc. Ann. art. 15.16 (Vernon 1977). Texas Code of Criminal Procedure article 38.23 provides that evidence obtained in violation of the Texas and U.S. Constitutions or laws of the State of Texas shall not be admitted in evidence against the accused on the trial of any criminal case. Tex.Code.Crim. PROC. Ann. art. 38.23(a) (Vernon Supp.2004-05). However, evidence is not obtained in violation of law and is not subject to exclusion under the statutory exclusionary rule if there is no causal connection between the illegal conduct and the acquisition of the evidence. Gonzales v. State, 67 S.W.3d 910, 912 (Tex.Crim.App.2002); Roquemore v. State, 60 S.W.3d 862, 870 (Tex.Crim.App.2001); Chavez v. State, 9 S.W.3d 817, 820 (Tex.Crim.App.2000). Likewise, it is well-settled, however, that the failure to take an arrestee before a magistrate in a timely manner will not invalidate a confession unless there is proof of a causal connection between the delay and the confession. Cantu, 842 S.W.2d at 680. Accordingly, the State contends that there was no causal connection between the alleged violation of article 15.16 and appellant’s confession.

Here, appellant said he wanted to tell the truth about what had happened; the police read him his Miranda rights; appellant signed the Miranda warnings, indicating he received and understood his rights; appellant gave the police an oral confession within ten minutes of beginning the interrogation; and Miranda warnings were contained in the written confession that appellant also signed. This evidence shows that appellant freely, knowingly, and voluntarily gave the police his confession and any delay in bringing appellant before a magistrate had no causal connection to appellant’s statement. We hold that the trial court did not abuse its discretion in denying appellant’s motion to suppress his confession on a violation of article 15.16 of the code of criminal procedure. See Cantu, 842 S.W.2d at 680; Childress v. State, 166 Tex.Crim. 95, 312 S.W.2d 247, 250 (1958) (holding confession made while under arrest is not inadmissible as a matter of law because officers failed to take accused before magistrate); Golemon v. State, 157 Tex.Crim. 534, 247 S.W.2d 119, 124 (1952) (holding failure to bring the defendant before a magistrate does not render confession inadmissible on theory that such failure was a violation of the law), cert. denied, 344 U.S. 847, 73 S.Ct. 60, 97 L.Ed. 659 (1952). We overrule appellant’s first issue.

Vienna Convention

In his second issue, appellant argues that the trial court erred by denying his motion to suppress due to a violation of section 36 of the Vienna Convention. Although appellant concedes that the Texas Court of Criminal Appeals’s decision in Rocha v. State controls this case, he argues that the decision is against public policy and should be reversed. 16 S.W.3d 1, 19 (Tex.Crim.App.2000) (holding that the exclusionary rule of the Texas Code of Criminal Procedure did not apply to treaty violations).

Section 36 of the Vienna Convention provides that when nationals from participating countries are arrested in the United States, the authorities are required to notify the foreign national that he has a right to contact his nation’s consulate. Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36(l)(b), at http://www.un.org/law/ilc/texts/consul.htm. If the foreign national requests, the authorities “shall, without delay” inform the foreign consulate that he has been detained. Id. Additionally, the consular officials from the foreign country shall have the right to visit their nationals in custody in the United States. Id. art. 36(l)(c). Appellant argues that his confession should have been suppressed because the police never notified him that, as a Mexican national, he had a right to contact the Mexican Consulate, nor did the police contact the consulate on his behalf.

The State argues that this court is bound by the court of criminal appeals decision in Rocha. 16 S.W.3d at 18-19. The court in Rocha held that the article 38.23(a) exclusionary rule of the Texas Code of Criminal Procedure does not apply to violations of treaties. Id.; see also Tex. Code CRiM. PROC. Ann. § 38.23(a). Absent contrary directions from the United States Supreme Court, the court of criminal appeals stated that it would not enforce Vienna Convention violations claimed under the federal exclusionary rule. Rocha, 16 S.W.3d at 19. This court is bound by the precedent of the Texas Court of Criminal Appeals and has no authority to disregard or overrule the precedent in Rocha. See Wiley v. State, 112 S.W.3d 173, 175 (Tex.App.-Fort Worth 2003, pet. ref'd). Accordingly, we hold that the trial court did not abuse its discretion by denying appellant’s motion to suppress on this ground. Therefore, we overrule appellant’s second issue.

Violation of Appellant’s Constitutional Right Against Self Incrimination

In his third issue, appellant complains that the trial court erred by denying his motion to suppress because it violated appellant’s Texas and United States Constitutional rights against self-incrimination. Although appellant alleges that admission of his confession violated the Texas and United States Constitutions, his argument consists of only one paragraph and does not cite a single legal authority in support of his argument. Thus, appellant has inadequately briefed this argument, and we will not consider it. See Tex.R.App. P. 38.1(h); Jackson v. State, 50 S.W.3d 579, 591 n. 1 (Tex.App.-Fort Worth 2001, pet. ref'd) (explaining that by raising an issue and failing to present any argument or authority on that issue, the party waives that issue).

JURY CHARGE ERRORS

In appellant’s fourth issue, he complains that the trial court erred by denying his jury charge request on voluntariness. Appellant claims that his confession is involuntary and therefore inadmissible due to violations of the Vienna Convention. As we have previously discussed, the court of criminal appeals in Rocha determined that a violation of the Vienna Convention provides no basis for the jury to disregard an otherwise voluntary confession. Rocha, 16 S.W.3d at 18-19. Therefore, the trial court’s failure to give the requested instruction regarding the affect of the Vienna Convention was not error. See Sifuentes v. State, 29 S.W.3d 238, 244 (Tex.App.-Amarillo 2000, pet. ref'd). Appellant’s fourth issue is overruled.

In appellant’s seventh issue, he complains that the trial court erred by denying his request for a jury charge on accomplice testimony. Appellant’s complaint focuses specifically on the testimony given at trial by Martin Esparza and Jose Luis Soto, who, respectively, provided the truck and the gun used in the robbery and murder. Appellant argues that Soto and Esparza were accomplices and, as such, the code of criminal procedure prohibited the State from convicting appellant solely on their uncorroborated testimony.

Article 38.14 of the Code of Criminal Procedure provides as follows:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Tex.Code CRiM. PROC. Ann. art. 38.14 (Vernon 1979). In conducting a sufficiency review under the accomplice-witness rule, the reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to ascertain if there is any evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App.2001); Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997). “Tendency to connect” rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt. Solomon, 49 S.W.3d at 361; Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999), cert. denied, 628 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense. Cathey, 992 S.W.2d at 462. To satisfy the accomplice-witness rule there simply needs to be other evidence tending to connect the accused to the commission of the offense. Id. at 463.

When there exists no doubt that a witness is an accomplice, the court is under a duty to so instruct the jury and failure to do so may be reversible error. DeBlanc v. State, 799 S.W.2d 701, 709 (Tex.Crim.App.1990) (applying Almanza), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Solis v. State, 792 S.W.2d 95, 98 (Tex.Crim.App.1990) (same); Burns v. State, 703 S.W.2d 649, 651 (Tex.Crim.App.1985) (same). If there is doubt whether a witness is an accomplice witness, the trial court may submit the issue to the jury even though the evidence weighs in favor of the conclusion that the witness is an accomplice as a matter of law. Kunkle v. State, 771 S.W.2d 435, 440-41 (Tex.Crim.App.1986), cert. denied, 492 U.S. 925, 109 S.Ct. 3259, 106 L.Ed.2d 604 (1989).

The State contends that no accomplice witness instruction was required because neither Esparza nor Soto were accomplices. The evidence at trial showed that appellant borrowed a white truck and a gun from Esparza and Soto, respectively, and offered to pay them for the use of these items. No evidence was presented at trial to show that Soto and Esparza had any knowledge of the crime or played any role in the robbery and murder. Detective LeNoir testified that the police initially considered Esparza and Soto as potential accomplices to the crime because they supplied the gun and truck. But the police cleared them as accomplices after appellant made his statement saying that neither had any knowledge what the items were to be used for. According to appellant, Esparza thought he was using the truck to “go out with some girls.” Appellant stated that he did not tell Soto why he needed the gun. Even appellant’s written confession, admitted at trial, denied that Esparza and Soto had any knowledge of why appellant wanted to borrow the gun and truck.

Additionally, sufficient evidence existed to corroborate appellant’s participation in the crime, namely, his confession. Because neither Esparza nor Soto could be considered accomplices and sufficient evidence existed to corroborate appellant’s involvement, appellant was not entitled to a jury instruction on accomplice testimony. We hold that the trial court did not err in denying appellant’s requested instruction and overrule appellant’s seventh issue.

RULE 403 OBJECTIONS

In his fifth and eighth issues, appellant complains that the trial court erred by overruling his objections to the introduction of autopsy photographs and the playing of the 911 phone call recording reporting the crime. He contends that the exhibits were more prejudicial than probative under Texas Rule of Evidence 403. Tex.R. Evid. 403.

Standard of Review

In reviewing the trial court’s determination of the probative and prejudicial value of evidence under rule 403, we will reverse the trial court only upon a clear abuse of discretion. Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996); Montgomery v. State, 810 S.W.2d 372, 392 (Tex.Crim.App.1991) (op. on reh’g). But, reviewing for abuse of discretion in this context requires more than deciding that the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court’s determination must be reasonable in view of all relevant facts. Rachal, 917 S.W.2d at 808; Montgomery, 810 S.W.2d at 392. Accordingly, if the record reveals that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, then the trial court acted irrationally in admitting it and abused its discretion. Rachal, 917 S.W.2d at 808; Montgomery, 810 S.W.2d at 392.

Autopsy Photographs

In his fifth issue, appellant argues that the trial court erred by overruling his objection to three autopsy photographs of Paliotta’s body. At trial, appellant objected to their admission arguing that the photographs were “very gruesome” and would unfairly prejudice appellant if admitted. Appellant also claimed that the photographs were cumulative as to the cause of Paliotta’s death and that the cause of death could be shown by the medical examiner’s testimony and sketches.

With regard to appellant’s challenges, rule 403 requires an admissible photograph to possess “some probative value and that its probative value not be substantially outweighed by its inflammatory nature.” Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App.1997) (quoting Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992)). In making this determination, we consider factors including the following: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up shots, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Id.

Here, the three color photos at issue showed close-up views of the bullet entry wound on Paliotta’s back, the large bruise on the front of his chest where the bullet tried to exit, and his bloodied face. The photos depicted the extent and nature of Paliotta’s wounds and did not show any alteration to his body resulting from autopsy or medical procedures. See id. (allowing autopsy photos unless they depict mutilation of the victim caused by the autopsy itself). The photographs were admitted during the State medical examiner’s testimony and they assisted him in describing his findings for the jury and illustrating to the jury the location and nature of Paliotta’s wounds. See Matamoros v. State, 901 S.W.2d 470, 476 (Tex.1995) (admitting morgue photos of wounds because they added to jury’s understanding of the nature of the wounds involved); Rogers v. State, 774 S.W.2d 247, 258 (Tex.Crim.App.) (holding that admission of autopsy photographs in capital murder prosecution was allowed for illustrative purposes with respect to pathologist’s testimony regarding cause of death), cert. denied, 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989), overruled on other grounds by, Peek v. State, 106 S.W.3d 72, 79 (Tex.Crim.App.2003). Paliotta was clothed from the waist down and the photos focused primarily on the gunshot wound that caused his death. The photographs were not unnecessarily gruesome or so inflammatory that they would be excludable from a capital murder trial on grounds that them probative value, to show circumstances of crime and to depict reality of offense, was substantially outweighed by danger of unfair prejudice. See Chamberlain v. State, 998 S.W.2d 230, 236-38 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). We hold that the trial court did not abuse its discretion in admitting the photographs. We overrule appellant’s fifth issue.

911 Tape Recording

In appellant’s eighth issue, he complains that the trial court erred in allowing the State to play the 911 tape aloud to the jury. He argues that, instead, the trial court should have admitted a written transcript of the 911 tape in order to avoid “inflam[ing] the minds of the jurors and unduly predjudic[ing] the Appellant.” Riojas and Chavez were excited and distraught on the 911 recording, but did not display such emotion as to inflame the jurors to act on emotion rather than on the evidence. Although the 911 recording was prejudicial to appellant, its probative value was not outweighed by the risk of undue prejudice. We hold that the trial court did not abuse its discretion by allowing the tape to be played in front of the jury. We overrule appellant’s eighth issue. See Anderson v. State, 15 S.W.3d 177, 186 (Tex.App.-Texarkana 2000, no pet.) (holding tape of call by victim’s husband to 911 was not more prejudicial than probative, even though tape was prejudicial to defendant, where tape covered period immediately after murder of wife, and contained eyewitness statements identifying defendant as the attacker); Munoz v. State, 932 S.W.2d 242, 244 (Tex.App.-Texarkana 1996, no pet.) (holding tape recording of emergency call, in which caller told dispatcher that victim had been shot, was not more prejudicial than probative in murder trial; tape provided framework within which state’s evidence could be developed, tape was not unduly graphic, and, although caller was excited and distraught, he did not display the kind of inflammatory emotion that would be calculated to cause jurors to act on emotion rather than evidence).

BATSON CHALLENGE

In his sixth issue, appellant complains that the trial court erred by overruling his Batson challenge because the State struck all potential Hispanic male jurors.

Appellant is a Hispanic male and a Mexican national. During the voir dire examination, the State used peremptory strikes to strike the only two male Hispanic veniremembers. The Fourteenth Amendment prohibits the use of peremptory challenges in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986); Ladd v. State, 3 S.W.3d 547, 563 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). When one party makes a prima facie case that another’s use of a peremptory strike is racially discriminatory, the striker must tender to the trial court race-neutral reasons for having made it. Ladd, 3 S.W.3d at 563. The challenger then must prove that the discrimination was purposeful. Id.

Here, the State struck the only two potential Hispanic male jurors on the panel. However, quite a few minorities remained on the jury panel. The court noted that jurors, Sally Rodriguez and Anita Garcia, were Hispanic and that Dawn Alvarez also had a Hispanic surname. Additionally, juror Wade was an African-American male. Appellant made a Batson challenge to the State’s use of their peremptory strikes, but the trial court ruled that appellant failed to make a prima facie case that the strikes were racially motivated.

Even so, the State explained that it struck veniremember number eight, Rafael Bustamante, because he was the first juror to ask a question on the issue of what appellant should have anticipated when Chi went into the store. Because Busta-mante had trouble deciding that issue, the State struck him. The State also struck veniremember twenty, Steve Hernandez, because the police had arrested him three times for domestic violence. The State felt as though the arrests illustrated that Hernandez could not be a reliable State’s juror.

Once the State gave its race-neutral explanations for striking Bustamante and Hernandez, the issue of whether appellant established a prima facie case became moot and appellant was then required to prove that the discrimination was purposeful. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991); Ladd, 3 S.W.3d at 563; Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App.1996). Because the trial court is in a unique position to determine the veracity of race-neutral reasons for exercising peremptory challenges, we must accord the trial court’s decision great deference and may not overturn it unless clearly erroneous. Jasper v. State, 61 S.W.3d 413, 421-22 (Tex.Crim.App.2001). Our standard of review requires that we view the evidence in the light most favorable to the trial court’s ruling. Id. Having done so, we hold that the record before us does not establish that Bustamante and Hernandez were struck for racially discriminatory reasons. We overrule appellant’s sixth issue.

WIDOW’S TESTIMONY

In his ninth issue, appellant complains that the trial court erred by overruling appellant’s motion for a mistrial because the emotional testimony of Paliotta’s widow had no probative value and unfairly prejudiced appellant under evidence rule 403, the state and federal constitutions, and the code of criminal procedure’s guarantees of due process and fair trials. Although appellant alleges that admission of the widow’s testimony violated the Texas and United States Constitutions, the rules of evidence, and the code of criminal procedure, his argument consists of only four sentences, and he does not cite a single authority in support of his argument. Additionally, appellant failed to show how he was harmed by the testimony. Thus, appellant has inadequately briefed this argument, and we will not consider it. See Tex.R.App. P. 38.1(h); Jackson, 50 S.W.3d at 591 n. 1 (explaining that by raising an issue and failing to present any argument or authority on that issue, the party waives that issue).

CRUEL AND UNUSUAL PUNISHMENT

In his tenth issue, appellant complains that the trial court erred by overruling appellant’s motion to declare the automatic life sentence for capital punishment as cruel and unusual punishment.

Appellant contends his punishment is cruel and unusual in violation of the Eighth Amendment to the United States Constitution. Specifically, he contends the automatic life sentence imposed by section 12.31 of the penal code and article 37.071, section 1 of the code of criminal procedure violates his right to an individualized sentence under the Eighth Amendment. U.S. Const, amend. VIII; Tex.Code Ceim. PROC. Ann. art. 37.071, § 1 (Vernon Supp. 2004-05); Tex. Penal Code Ann. § 12.31(a) (Vernon 2003). Numerous courts, including this one, have rejected the argument that the assessment of a mandatory life sentence for the offense of capital murder constitutes cruel and unusual punishment within the meaning of the Eighth Amendment. See, e.g., Buhl v. State, 960 S.W.2d 927, 935 (Tex.App.-Waco, pet.ref'd), cert. denied, 525 U.S. 1057, 119 S.Ct. 623, 142 L.Ed.2d 561 (1998); Laird v. State, 933 S.W.2d 707, 714-15 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd); Prater v. State, 903 S.W.2d 57, 59 (Tex.App.-Fort Worth 1995, no pet.). We are unpersuaded by appellant’s request to revisit this issue. Moreover, Texas courts have traditionally held that as long as the punishment is within the range prescribed by the Texas Legislature, the punishment is not excessive, cruel, or unusual. See, e.g., Alvarez v. State, 63 S.W.3d 578, 580 (Tex.App.-Fort Worth 2001, no pet.). Here, appellant received a punishment within the statutory range. See Tex. Penal Code Ann. § 12.31(a) (a defendant convicted of capital murder receives a mandatory life sentence when the State waives the death penalty). Appellant’s tenth issue is overruled.

IMPEACHMENT OF A WITNESS

In his eleventh issue, appellant complains that the trial court erred by denying appellant the right to impeach Martin Esparza with a felony conviction from Mexico.

Rule of evidence 609(a) provides as follows:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

Tex.R. Evid. 609(a). The proponent of the evidence must show that it is admissible. Arnold v. State, 36 S.W.3d 542, 546 (Tex.App.-Tyler 2000, pet. ref'd). When reviewing a trial court’s decision to admit evidence of a defendant’s previous conviction, we accord the trial court wide discretion and reverse only when the court’s decision lies outside the zone of reasonable disagreement. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App.1992).

Esparza testified outside the jury’s presence that the Mexican police stopped him for possession of a firearm and held him in a Durango, Mexico jail for a day and a half. Although Esparza admitted the offense was a felony in Mexico, he claimed that he never went before a judge or a court in the case. Appellant never offered any documents or testimony establishing the existence of a felony conviction, nor did he request a continuance to obtain proof. It was appellant’s burden to produce evidence showing that a prior felony conviction existed. See Arnold, 36 S.W.3d at 546. Based upon this record, we hold that the trial court did not err in denying appellant’s request to impeach. We overrule appellant’s eleventh issue.

CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the trial court’s judgment.


text:
    The STATE of Texas, State, v. Wayne T. BALLMAN, Appellee.
    No. 2-03-345-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 16, 2004.
    Rehearing Overruled Jan. 20, 2005.

      Tim Curry, Criminal District Atty., Charles M. Mallin, Tanya Sue Dohoney, Navid Alagheband, and Charles Vanover, Asst. Criminal District Attys, Fort Worth, for State.
    Curtis L. Fortinberry, Fort Worth, for Appellee.
    Panel F: LIVINGSTON, WALKER, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

This is a State’s appeal from the trial court’s grant of appellee’s motion to suppress in this driving while intoxicated case. We affirm.

Background Facts

The officer making the arrest for the DWI, Officer H.L. Gibbs, was the only witness at the suppression hearing. Officer Gibbs testified that he stopped appel-lee Wayne T. Ballman when appellee made a right hand turn from a private parking lot onto Hulen Street without using his turn signal. The State says this traffic code violation constituted probable cause to stop appellee and to issue a traffic citation. See Tex. Transp. Code Ann. § 545.104 (Vernon 1999) (requiring operator to activate a turn signal to “indicate an intention to turn”).

At the suppression hearing the arresting officer admitted that the stop was a pretext stop primarily based upon a citizen call received by dispatch over an hour earlier claiming that appellee’s car was being erratically driven. The citizen made three calls to police while following the vehicle. She identified herself in two of the calls as “Karen” and gave dispatch her cell phone number. She also gave dispatch the vehicle type, color, and license plate number and told dispatch that the vehicle was turning into a Central Market parking lot. She had followed the vehicle from Camp Bowie Boulevard until it turned into the lot.

When Officer Gibbs located the car, it was parked. It was empty when he stopped and looked inside. He spoke with a private security officer at one of the stores and asked the officer to call him if he saw the car leaving. About a half hour later the security officer called Officer Gibbs, who arrived at the parking lot, watched the car leaving the lot, and observed the vehicle make a right-hand turn, after stopping, without a signal. The trial court found that the failure to signal was the only driving fact that Officer Gibbs observed and the only act that could have caused the officer to believe the driver was intoxicated. Because the trial court also found there was no traffic code violation, it granted appellee’s motion to suppress.

Points on Appeal

In eight points, the State challenges the trial court’s order granting the suppression of the DWI evidence. Although the State presented eight points on appeal, each point is based upon whether the arresting officer had reasonable suspicion or probable cause to stop appellee solely on the basis of appellee’s alleged traffic code violation.

Standards of Review

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV. For an arrest to be justified under the Fourth Amendment, it must be accompanied by probable cause to believe that a person has engaged in or is engaging in criminal activity. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). A detention, however, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche, 10 S.W.3d at 327; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-faet questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); Harrison v. State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. filed); Best, 118 S.W.3d at 861-62. However, when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

When the only evidence presented in a motion to suppress hearing is the testimony of the arresting officer (which, if believed, clearly adds up to a reasonable suspicion or probable cause) and the trial court grants the motion without filing findings of fact or any other explanation, there is not a “concrete” set of facts that can be implied from such a ruling. Ross, 32 S.W.3d at 856. In those cases, there is a mixed question of law and fact that turns on an evaluation of the credibility and demeanor of the sole witness who the trial court obviously chose not to believe. Guzman, 955 S.W.2d at 89. We give almost total deference to the trial court’s ruling on such questions. Id.; see also Ross, 32 S.W.3d at 856.

When the sole witness at the motion to suppress hearing is the arresting officer and the trial court filed findings of fact and conclusions of law, however, the only question before us is whether the trial court properly applied the law to the facts it found. See Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 86-87, 89; Harrison, 144 S.W.3d at 85; James v. State, 102 S.W.3d 162, 169-79 (Tex.App.Fort Worth 2003, pet. ref'd). This is especially true in a case like this where the State has not contested the trial court’s findings of fact and the trial court’s findings show that the court believed the arresting officer but concluded his testimony was insufficient as a matter of law. See Ross, 32 S.W.3d at 856-58; Guzman, 955 S.W.2d at 89; State v. Maldonado, No. 01-03-774-CR, 2004 WL 2306703, at * 2 (Tex.App.-Houston [1st Dist.] Oct. 14, 2004, no pet. h.).

The State asserts, because of this, that we should apply a de novo standard of review in this case. The State says that there is a “concrete” set of facts because the record affirmatively indicates the trial court believed all of Officer Gibbs’s testimony. See Ross, 32 S.W.3d at 857-59. We agree, but clarify that we are applying a de novo review only to the question of whether the trial court correctly applied the law to the facts it found as opposed to the correctness of any facts it found. See Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004) (explaining application of various standards of review to war-rantless searches and searches pursuant to a warrant) (citing Ornelas v. United States, 517 U.S. 690, 697-98, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996)); see also Johnson, 68 S.W.3d at 652-53; Ballard, 987 S.W.2d at 891; Harrison, 144 S.W.3d at 85-86; Lemmons v. State, 133 S.W.3d 751, 755 (Tex.App.-Fort Worth 2004, pet. ref' d). Because the trial court entered both findings of fact and conclusions of law and because those findings make clear that the trial court accepted virtually all of Officer Gibbs’s testimony, we must give that court almost total deference in reviewing those historical facts but may review de novo the application of the law to those facts. See Ross, 32 S.W.3d at 856-58.

Discussion

In the State’s first point, the State contends that the trial court erroneously determined that section 545.104 of the transportation code did not apply to the turn appellee made from the parking lot onto Hulen Street. See Tex. Transp. Code Ann. § 545.104. In the State’s third point, it contends Officer Gibbs had probable cause to stop appellee because appellee committed a traffic violation by failing to signal when turning from the parking lot onto Hulen Street. In its conclusions of law, the trial court determined that appellant committed no traffic violation because neither the transportation code nor the city’s municipal code requires a turn signal on a stop and turn from a private driveway onto a public street or highway. Id.; FoRt WoRth, Tex., Code ch. 22, art. 3, § 22-78 (2004). The court also concluded that because the nonexistent traffic violation was the only basis for the stop, the stop was invalid; accordingly, the trial court granted the motion to suppress.

Traffic Code Violation

Under the Texas Transportation Code, an operator is required to use a turn signal to indicate an intention to turn, change lanes, or start from a parked position when a vehicle is being operated on a highway. Tex. Transp. Code Ann. §§ 542.001, 545.104. A highway is defined as “the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular traffic.” Id. § 541.302(5). Thus, the trial court concluded that because the parking lot was not a highway but a privately maintained place, the signaling requirement did not apply to appellee’s turn.

Further, the court observed that while a traffic violation is not required for an officer to stop and detain a vehicle, an officer must otherwise have a reasonable suspicion supported by articulable facts that criminal activity may be afoot. The court concluded that the officer did not have reasonable suspicion to stop the vehicle because the officer had no identifying information on the driver of the vehicle at the time the citizen saw the vehicle as opposed to when the officer saw it leaving, the vehicle had remained parked and unoccupied for nearly an hour in the parking lot, and over an hour had passed since the concerned citizen had called to report the erratic driving of the vehicle. Our review of the record and the trial court’s findings and conclusions leads us to likewise conclude that the trial court properly applied the law to the facts and correctly granted appellee’s motion to suppress.

An officer must have probable cause to stop a vehicle and arrest the driver for a traffic violation without a warrant. Ballard, 987 S.W.2d at 892. Probable cause exists when the facts and circumstances within the officer’s knowledge at that time, and of which he has reasonably trustworthy information, would cause a reasonably prudent person to believe that a certain person has committed or is committing a crime. Id. When an officer observes a traffic offense, he may arrest the violator. Lemmons, 133 S.W.3d at 756. Here, however, the officer did not observe a traffic offense; he only thought he had. The trial court properly determined the officer did not observe a traffic violation under section 545.104 of the transportation code and therefore had no probable cause to stop or arrest appellee. We overrule the State’s first and third points.

Additionally, the State’s fourth point claims trial court error that conflicts with article 14.01 of the code of criminal procedure. Tex.Code Crim. Proc. Ann. art. 14.01 (Vernon 1977). Article 14.01 gives officers the right to arrest without a warrant in limited situations in which the officer sees an offense committed in his presence or within his view. Id. However, as we have already concluded that appellee committed no offense in Officer Gibbs’s view, article 14.01 is inapplicable as well. We overrule the State’s fourth point.

In the State’s second point, it contends that the trial court erred by concluding the officer lacked reasonable suspicion to stop appellee on the basis of the traffic violation. At trial, however, the State relied solely on two theories to justify the stop: (1) that the officer had probable cause to stop and arrest appellee due to a traffic violation and (2) that the officer had reasonable suspicion to stop and investigate appellee due to the concerned citizen call on a possible DWI. At no time during the hearing on the motion to suppress did the State claim that the officer had reasonable suspicion to stop and investigate appellee due to an alleged traffic code violation. And on appeal, the State has abandoned any claim of reasonable suspicion based upon the private citizen’s call.

In cases in which the State is the appealing party, points not raised or argued by the State at trial are waived and cannot be raised for the first time on appeal. State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.1998). According to the court of criminal appeals, this limitation arises out of a similar rule of appellate jurisprudence applicable to the defense: points not raised and argued at trial are deemed to be waived. Id.; see also Tex. R.App. P. 33.1(a). This is so despite many cases affirming a trial court’s decision denying suppression based upon unraised claims in which the defendant is the appellant and the State is seeking to uphold a lower court’s determination in its favor. Mercado, 972 S.W.2d at 78. As the court of criminal appeals stated in Mercado:

Although this Court has approved of appellate courts considering alternative theories of law applicable to the facts of the case which support the trial court’s decision, we have not afforded the courts of appeals latitude to reverse a trial court’s decision on new theories of law not previously presented to that court for its consideration.

Id. at 77. Thus, the State may not claim for the first time on appeal that Officer Gibbs had reasonable suspicion to stop and detain appellee based upon the alleged traffic code violation. Therefore, we overrule the State’s second point.

In the State’s fifth, sixth, seventh, and eighth points, it asserts trial court error based upon Terry v. Ohio, the Fourth Amendment to the United States Constitution, and article I, section 9 of the Texas Constitution. U.S. Const, amend. IV; Tex. Const, art. I, § 9; Terry v. Ohio, 392 U.S. at 1, 88 S.Ct. at 1868. In support of these points, the State summarily claims that we should look generally to the central requirement of the reasonableness of Officer Gibbs’s search and that since the record shows the officer conducted himself reasonably, we should sustain its fifth, sixth, seventh, and eighth points.

However, these points were not separately presented or ruled upon in the trial court, so they are waived to the extent they are not otherwise encompassed in the State’s other points. See Mercado, 972 S.W.2d at 78. Also, to the extent that these arguments are addressed in the State’s discussions of its other points, we do not address them separately here because they are more specifically addressed in our discussion of the State’s other points and because there is little additional analysis or argument under these points that was not already discussed elsewhere. See Tex.R.App. P. 38.1; Wood v. State, 18 S.W.3d 642, 649 n. 6 (Tex.Crim.App.2000); Harris v. State, 133 S.W.3d 760, 764 n. 3 (Tex.App.-Texarkana 2004, pet. ref'd); Martinez v. State, 969 S.W.2d 497, 499 (Tex.App.-Austin 1998, no pet.). We overrule points five, six, seven, and eight.

Conclusion

Having overruled the State’s eight points, we affirm the judgment of the trial court.

APPENDIX “A”

FINDINGS OF FACT

i On July 17, 2002, a concerned citizen called the Fort Worth Police Department to report a maroon Toyota Camry “driving erratically” as it proceeded eastbound on Interstate 30, passing Camp Bowie, and exiting at Hulen Street.

2. According to the Fort Worth Police Department’s dispatch records, three calls were made by the concerned citizen at 7:41 p.m., and 7:43 p.m., and 7:45 p.m.

3. The caller identified the Camry by license plate numbers ZTT48B/BTT48B.

4. The caller further identified herself as Karen and gave her cellular phone number to dispatch.

5. The caller did not give a description of the driver of the vehicle; however, she reported seeing the driver with a drink in the car.

6. The caller indicated the vehicle was turning into a shopping center on Hu-len Street known as [t]he Central Market Shopping Center.

7. At 8:30 p.m., approximately 45 minutes after dispatch received the calls, Corporal Gibbs of the Fort Worth Police Department received the broadcast via his Mobile Data Terminal (MDT) regarding the maroon Toyota Camry.

Fort Worth officers H. Gibbs and W. Browning proceeded to the Central Market parking lot where they located a maroon Toyota Camry matching the description given by the concerned citizen.

9. The maroon Camry was parked and unoccupied.

10. The concerned citizen was not present in the Central Market parking lot.

11. Officer Gibbs drove past the vehicle, but did not remember getting out of his vehicle to look inside the Camry.

12. Officer Browning made contact with off duty officer J. Williams, who was working security at the location. Officer Williams was asked to contact Officer Browning when the vehicle in question was again occupied.

13. At approximately 8:50 p.m., over an hour after the calls were originally made by the concerned citizen, Officer Williams advised Officers Browning and Gibbs that the Camry was being occupied in the Central Market parking lot.

14. Officers Gibbs and Browning were near the location and immediately made the scene.

15. Officers observed the vehicle stopped in the Central Market parking lot at the intersection of the shopping center and Hulen Street, which is controlled by traffic lights facilitating vehicles coming into and exiting from the shopping center.

16. The officers witnessed the vehicle make a right-hand turn out of the parking lot onto the public street without using a turn signal.

17. Corporal Gibbs stopped the vehicle.

18. Corporal Gibbs first identified Wayne T. Ballman as the driver of the vehicle after he made the stop.

19. Other than failure to signal, Officer Gibbs did not observe any driving facts which would cause him to believe the driver of the vehicle was intoxicated.

20. But for the broadcast from the concerned citizen, Officer Gibbs would not have been alerted to the defendant’s vehicle.

CONCLUSIONS OF LAW

1. Section 541.301 of the Texas Transportation Code defines a highway or street as: “the width between the boundary lines of a publicly maintained way, any part of which is open to the public for vehicular traffic.”

2. The parking lot where the Defendant was observed not using his turn signal is not a publicly maintained way.

3. Section 541.302(9) of the Texas Transportation Code states: “a private road or driveway, means a privately owned way or place used for vehicular traffic and used only by the owner and persons who have the owner’s express or implied permission.”

4. The parking lot in which Defendant’s car was observed by Corporal Gibbs is privately maintained and is not a public way.

5. Section 541.303 of the Texas Transportation Code defines an intersection as:

(a) ... the common area at the junction of two highways, other than the junction of an alley and a highway.
(b) The dimensions of an intersection include only the common area.
(1) ‘Within the connection of the lateral curb line or, in the absence of curb lines, the lateral boundary lines of the roadway of intersecting highways that join at approximately right angles.”

6. The privately maintained way where Defendant’s car was observed by Corporal Gibbs is not an intersection as defined by Section 545.103 Texas Transportation Code.

7. Section 542.001 of the Texas Transportation Code (Vehicles on highways) states: “a provision of this subtitle relating to the operation of a vehicle applies only to the operation of a vehicle on a highway unless the provision specifically applies to a different place.[”]

8. Section 545.104 of the Texas Transportation Code; Signaling turns; use of turn signals does not contain a provision that makes this provision applicable to privately maintained ways.

9. Section 542.005 of the Texas Transportation Code only allows owners of private property to regulate traffic on their property; it does not give peace officers the authority to enforce traffic laws on private property.

10. The City of Fort Worth Municipal Code, Section 22-78, applies only to vehicles turning or entering a private road or driveway, and does not apply to this case.

11. There is no requirement that a traffic regulation has been or is about to be violated in order for an officer to have reasonable suspicion sufficient to justify a stop of a vehicle.

12. A police officer may stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of probable cause.

13. Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged in or is, or soon will be, engaging in illegal conduct.

14. Reasonable suspicion is determined by considering the “totality of the circumstances.”

15. An officer may be justified in stopping a driver based upon a reasonable suspicion of driving while intoxicated.

16. Because over an hour had passed between the time of the broadcast and the stop of the vehicle, the police lost nexus between the broadcast and the stop.

17. Because over an hour had passed between the time of the broadcast and the stop of the vehicle, Officer Gibbs did not possess sufficient facts that, based solely upon the broadcast, warranted him to reasonably suspect the Defendant was engaged in the illegal activity of driving while intoxicated.

18. Because over an hour had passed between the time of the broadcast and the stop of the vehicle, Officer Gibbs did not possess sufficient facts that, based solely upon the broadcast, warranted him to reasonably suspect that someone in the vehicle was engaged in the illegal activity of public intoxication.

19. Because over an hour had passed between the time of the broadcast and the stop of the vehicle, Officer Gibbs did not possess sufficient facts that, based solely upon the broadcast, warranted him to reasonably suspect that someone in the vehicle possessed an open container of alcohol.

[Citations omitted].

      . The trial court’s findings of fact and conclusions of law are attached to this opinion as appendix "A.”

      . The State does not contend on appeal that appellee’s turn onto Hulen Street constituted a violation of the Fort Worth Code.