author: WOMACK, J., HOLCOMB, J.,

text:
    The STATE of Texas v. Matthew Wayne KURTZ, Appellee.
    No. 1397-03.
    Court of Criminal Appeals of Texas.
    Oct. 20, 2004.
    Rehearing Denied Jan. 12, 2005.

      Lloyd D. Odie, Lewisville, for Appellant.
    Emily Johnson-Liu, Asst. District Atty., McKinney, Matthew Paul, State’s Atty., Austin, for State.
   WOMACK, J.,

delivered the opinion of the Court,

in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

The question in this appeal is whether an officer of the police department of a city has authority to stop a person for committing a traffic offense when the officer is in another city within the same county. We hold that the officer does not have such authority.

Facts

On August 12, 2001, Steven Boyd, a police officer of the City of Plano, noticed a vehicle that was going west on a multi-lane, divided highway (State Highway 121). He saw the vehicle cross from the right lane onto the improved shoulder of the highway, where it traveled for several seconds. Then it moved unsteadily, from the shoulder to the right lane and back to the shoulder, several times. When the vehicle ultimately returned to the right lane of the highway, the officer stopped the vehicle and spoke to the driver, Matthew Kurtz. The officer saw and smelled evidence of intoxication, so he arrested the driver for driving while intoxicated. He took Kurtz to the Plano City Jail.

Procedural History

The Collin County Attorney charged Kurtz with DWI. Kurtz moved to suppress the evidence that the officer had obtained after the stop on the ground that it was obtained by illegal acts.

The trial court concluded, “The only possible offenses Boyd may have initially observed Kurtz commit ... were traffic offenses, i.e., faihme to maintain a single lane and driving on the improved shoulder of a highway. TEX. TRANSP. CODE ... §§ 545.060 and ... 545.058.”

The court also found that the Plano officer stopped and arrested Kurtz in the City of Frisco.

The City of Plano and the City of Frisco are home-rule cities, each of which is located in both Collin and Denton Counties. Plano is south of Frisco. For a distance of less than a mile, the cities are contiguous. The trial court found that the boundary line of the cities is the center line of the highway on which Kurtz was driving. Although the east-bound lanes of the highway are in Plano, the west-bound lanes of the highway, where Kurtz was driving and where he was stopped, are in Frisco.

The trial court granted the appellee’s motion to suppress evidence, and the State appealed. A divided panel of the Fifth Court of Appeals affirmed. We granted review.

Relevant Statutes

The general authority (and, in some circumstances, the duty) of peace officers to arrest without warrant are set out in Arri-ele 14.03 of the Code of Criminal Procedure. The portions of Article 14.03 that are most relevant to this particular case are:

14.03. Authority of Peace Officers

(a) Any peace officer may arrest, ■without warrant:
(1)persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws; .
(d) A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer’s presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace. A peace officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06 of this code.
(g) A peace officer listed in Subdivision (1), (2), (3), (4), or (5), Article 2.12, who is licensed under Chapter 415, Government Code, and is outside of the officer’s jurisdiction may arrest without a warrant a person who commits any offense within the officer’s presence or view, except that an officer who is outside the officer’s jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the officer is listed in Subdivision (4), Article 2.12. A peace officer making an arrest under this subsection shall as soon as practicable after making the arrest notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06.

These portions of Article 14.03 refer to several other statutes. One is Article 2.12 of the Code of Criminal Procedure which, at the time that Officer Boyd stopped Kurtz, read, in part:

Art. 2.12. Who Are Peace Officers

The following are peace officers:

(1) sheriffs, their deputies, and those reserve deputies who hold a permanent peace officer license issued under Chapter 415, Government Code;
(2) constables, deputy constables, and those reserve deputy constables who hold a permanent peace officer license issued under Chapter 415, Government Code;
(3) marshals or police officers of an incorporated city, town, or village, and those reserve municipal police officers who hold a permanent peace officer license issued under Chapter 415, Government Code;
(4) rangers and officers commissioned by the Public Safety Commission and the Director of the Department of Public Safety;
(5) investigators of the district attorneys’, criminal district attorneys’, and county attorneys’ offices; .

Another statute to which Article 14.03 refers is Article 14.06 of the Code of Criminal Procedure, which at the time the ap-pellee was stopped, read:

Art. 14.06. Must take offender before magistrate

(a) Except as provided by Subsection (b), in each case enumerated in this Code, the person making the arrest shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, if necessary to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in a county bordering the county in which the arrest was made. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.
(b) A peace officer who is charging a person, including a child, with committing an offense that is a Class C misdemeanor, other than an offense under Section 49.02, Penal Code, may, instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged..

Article 14.03 also refers to “Subtitle C, Title 7, Transportation Code.” The subject of Title 7 of the Transportation Code is “Vehicles and Traffic,” and the subject of Subtitle C is “Rules of the Road.” In Subtitle C are the sections that the trial court cited in its conclusions: Section 545.058 (“Driving on Improved Shoulder”) and Section 545.060 (“Driving on Roadway Laned for Traffic”).

Discussion

The authority of a peace officer to arrest without warrant for an offense committed within the officer’s presence or view when the officer is outside the officer’s jurisdiction was significantly altered in 1995 by the act of the legislature that added Subdivision (g) to Article 14.03 of the Code of Criminal Procedure. The act limited the authority of peace officers to arrest without warrant in two ways:

(1) The act gave only five categories of peace officers the general authority to arrest without warrant for any offense committed within their presence or view when they were outside their jurisdictions. All other categories of peace officers were not given such extra-territorial authority to arrest without warrant. At this time, there appear to be thirty-three categories of peace officers who are not given such authority to arrest without warrant when they are outside their jurisdictions: three categories of “reserve” officers (reserve deputy sheriffs, reserve deputy constables, and reserve municipal police officers) if they do not hold a permanent peace officers license, and the thirty other categories of peace officers who are listed in Subdivisions (6) through (34) of Article 2.12.

(2) From four of the five categories of peace officers who were given general authority to arrest without warrant for offenses committed within their presence or view when they were outside their jurisdictions, the act took away the authority to arrest for the traffic offenses that are violations of the Rules of the Road in the Transportation Code. Only rangers and officers of the Department of Public Safety were given authority to make an extraterritorial arrest without warrant for such offenses.

This act was very specific and clear in not giving police officers and marshals of cities, towns, and villages the authority to arrest without warrant for violations of the Rules of the Road that are committed in their presence or view when they are outside their jurisdictions. There is no room in Article 14.03(g) for us to find any authority for Officer Boyd of the Police Department of the City to Plano to arrest without warrant for a violation of the Rules of the Road when he was outside the city.

The State’s argument on the issue of the officer’s authority to arrest is that our decision in Angel v. State, 740 S.W.2d 727 (Tex.Cr.App.1987), “held that a city police officer’s jurisdiction is county-wide.” The 1995 statute says something quite different, as we have explained.

The State’s argument that “if the legislature intended to change Angel, it could have done so more closely in time to the Angel decision and could have been more explicit” has no merit. The statute could not be more clear: DPS officers have authority to arrest without warrant for violations of the Rules of the Road statutes committed in their presence or view; other peace officers do not when they are outside their jurisdictions. The legislature and the governor said so in 1995. Whatever authority Angel may have had at one time, it cannot now give authority to Officer Boyd.

The State also says, “Alternatively, this court should establish that city officers may act as peace officers anywhere in their county when their action preserves the peace in their city.” We should do this because “courts, whenever reason and equity demand, have been the primary instruments for changing the common law through a continual re-evaluation of common law concepts in light of current conditions.”

But the courts of common law or equity will not extend the city officer’s authority to arrest. “Independent of statute, the authority or jurisdiction of the marshal would not extend beyond the city limits.” So the Supreme Court said in 1895, when there was certified to it the question, “Can the marshal of a town incorporated under the general laws of this state, by virtue of his office, under the circumstances specified in article 229 of the Code of Criminal Procedure, lawfully arrest one beyond the limits of the town for a felony committed within the county, but not within the town?” And so we believe the law to be today.

The State argues with some force that rapid growth of cities leads to changes in their boundaries, and that cities have an interest in protecting their citizens from dangerous drivers near their boundaries. We also know that the rapid growth of cities has led more of them to expand into multiple counties, and more of them to become contiguous. If this court could and would adopt the rule for which the State argues in this case, that every city police officer may arrest without warrant anywhere in the county in which the city is located, the result would be that the police officers of Plano could arrest without warrant in any city in Collin and Denton Counties, and the police officers of any city in Collin and Denton Counties could arrest without warrant in Plano. In addition to Plano and Frisco, Collin County encompasses all or part of 26 other towns and cities, including Dallas, Richardson, and McKinney. Denton County encompasses 36 other cities, including all or parts of Dallas, Denton, Fort Worth, and Lewis-ville. Whether all or any of these cities would welcome warrantless arrests by the police officers of other cities, we do not know. When it comes to arrests without warrant for traffic offenses, the legislature has said that officers may not make them in cities other than their own. We think the courts must accept that decision.

The record discloses interlocal agreements between the cities of Plano and Frisco that show the interest of the City of Plano in controlling traffic by the use of traffic signals, and the interest of the City of Frisco “to promote development by retaining full and sole control over driveway locations on the north side of State Highway 121.” The balance of these and other interests against the interest in enforcing the Rules of the Road is for the cities to strike when they draw boundaries and make agreements. It is not for this court.

The State likens this case to our recent decision in Yeager v. State, in which we held that officers, who had authority to seize a motorist when he drove erratically in their city, continued to have authority to pursue and seize him outside the city. We rely on the trial court’s findings that none of Officer Boyd’s observations or actions took place in his city.

The State also invites us to find that the officer had authority “to preserve the peace in his jurisdiction” by stopping Kurtz in the City of Frisco before he veered from the shoulder and the right lane across the other west-bound lanes and across the dividing median into the eastbound lanes in the City of Plano. But these are not the facts of the case. We have no occasion today to consider a case in which a city officer sees a person outside the city carrying destruction toward the city limits, and acts to arrest for a breach of the peace. This was a detention for violation of a Rules of the Road statute, which was followed by an arrest for DWI.

The dissenting opinion, post, would reverse the judgments of the courts below because Officer Boyd had reasonable suspicion of the appellee’s committing the offense of DWI. We believe that the dissenting opinion is not supported by the facts of this case. The trial court concluded that “the only possible offenses” that the officer “may have initially observed were traffic offenses.” We read this as a finding that DWI was not a possible offense that Officer Boyd initially observed. Which brings us to the State’s remaining argument.

The State argues that, whatever Article 14.03 may do to limit Officer Boyd’s authority to arrest, “no statute limits the officer’s authority to perform an investigative detention.” The State has not taken into account the way the term “arrest” is used in enforcement of the Rules of the Road statutes.

Section 543.001 of the Transportation Code provides generally, “Any peace officer may arrest without warrant a person found committing a violation of this subtitle,” which is Subtitle C of Title 7 — the “Rules of the Road” subtitle. The Code makes it clear that its use of the term “arrest” is not limited to a custodial arrest.

Although the Transportation Code uses the term “arrest” to describe the process by which a person is detained and later released pursuant to a promise to appear, it is clear that this procedure involves what both the courts and common usage refer to as a “traffic stop.” If fealty to the statutory language requires that the detention involved be labeled an arrest, it is not the sort of “custodial arrest” that subjects the person to the incidental searches allowed by Fourth Amendment law.

These Transportation Code “arrests” are temporary detentions that may end without further official action, or with the issuance of a written notice to appear (which is the only action authorized when the “arrest” is to charge a Texas resident who is operating a vehicle licensed in Texas with an offense of speeding or a violation of the open container law), or by the custodial arrest that is followed by taking the arrested person before a magistrate.

The same meaning should be given to the term “arrest” when Code of Criminal Procedure Article 14.03(g) says “that an officer who is outside the officer’s jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the officer is listed in Subdivision (4), Article 2.12.” This clause is closely linked to Subtitle C, and the term “arrest” should have the same meaning in this clause that it has in Subtitle C. We therefore reject the State’s argument that no statute limited Officer Boyd’s traffic stop of Kurtz. This clause of Article 14.03(g) limited it.

Because Officer Boyd was outside his jurisdiction when he arrested Kurtz by temporarily detaining him for violating the Rules of the Road, and he is not an officer who is listed in Subdivision (4) of Article 2.12 of the Code of Criminal Procedure, the arrest was in violation of Article 14.03(g) of the Code. Evidence that was obtained in violation of that article may not be admitted in evidence against the accused in the trial of a criminal case, and the courts below were correct to say that it must be excluded.

The judgment of the court of appeals is affirmed.

HOLCOMB, J., filed a dissenting opinion, in which KELLER, P.J., joined.

HOLCOMB, J.,

dissenting, in which KELLER, P.J., joined.

I respectfully dissent. I have no argument with the majority’s holding that an officer outside his jurisdiction cannot arrest for mere traffic offenses. But the majority’s holding today means that an officer outside his jurisdiction cannot stop and detain a person when the officer witnesses traffic offenses which in themselves also give rise to reasonable suspicion that a felony, a violation of Chapter 42 or 49 of the Penal Code, or a breach of the peace is taking place. This is contrary to the statute and well-settled state and federal jurisprudence; therefore, I dissent.

The reasons I must dissent are threefold: (1) the trial court abused its discretion because its conclusions of law are erroneous; (2) the State was justified when it argued article 14.03(g) does not prohibit any peace officer from conducting an investigative detention outside his jurisdiction when traffic offenses committed in his view supply reasonable suspicion that a breach of the peace or an intoxication offense is afoot; and (3) the Legislative history of the statute belies a construction that would prohibit extra-jurisdictional stops anywhere in the state, except when an arrest is made for traffic offenses.

I. The trial court’s conclusions of law are erroneous

I take issue with the following excerpt of the trial court’s conclusions of law:

“Boyd admitted he found probable cause for the DWI arrest only after completing the field-sobriety tests, which means he did not observe a DWI offense before then; he observed only events which might cause a reasonable suspicion of DWI. The only possible offenses Boyd may have initially observed Kurtz commit outside the Plano city limits were traffic offenses, i.e., failure to maintain a single lane and driving on the improved shoulder of a highway. Under article 14.03(g), Boyd could not legally stop Kurtz for these violations, unless some other provision of the law applied.” (emphasis added).

Based upon this reasoning, the trial court abused its discretion in suppressing the evidence because it clearly misstates the law.

An abuse of discretion with respect to factual matters occurs if the record establishes the trial court could reasonably have reached only one decision and it failed to do so. As to the determination of controlling legal principles, an abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly. A trial court has no discretion in determining what the law is or applying the law to the facts. Thus, a failure by a trial court to analyze or apply the law correctly will constitute an abuse of discretion.

At the suppression hearing, Officer Boyd testified as follows:

Officer Boyd: My first observation of Mr. Kurtz’s vehicle was traveling west or southbound on State Highway 121. I observed the vehicle cross from the right-hand lane onto the improved shoulder of westbound 121 and travel on the improved shoulder for several seconds. I then observed the vehicle cross back over on to the right-hand lane on several occasions and ultimately correct itself back into the right-hand lane where I made a traffic stop.
The State: And you first observed Mr. Kurtz move from his lane of traffic to the improved shoulder?
Officer Boyd: He moved from the far right-hand lane onto the right-hand improved shoulder of 121.
The State: Can you describe the location of his car with respect to the lane of travel?
Officer Boyd: Initially, it was in the far right-hand lane ... The shoulder is paved with a solid white line separating the shoulder itself from the right-hand lane of traffic.
The State: Did his vehicle drift completely onto the shoulder?
Officer Boyd: The vehicle traveled from the right-hand lane completely onto the improved shoulder and traveled in the improved shoulder for several seconds.

The State: When you say several seconds, do you have any more clear idea of how long that was?

Officer Boyd: Between three to five seconds, I would say.
The State: And after you observed the vehicle travel on the improved shoulder for three to five seconds, what did you next observe?
Officer Boyd: I observed the vehicle cross back over into the right-hand lane on several occasions as if the driver was actually traveling in the shoulder and then drifting into the right-hand lane.
The State: Were those maneuvers unsafe?
Officer Boyd: In my opinion they were, yes.
The State: Were there any other vehicles on the road at that time?
Officer Boyd: ... There was one vehicle that was parked to the right of the improved shoulder facing west off to the side of westbound 121.
The State: There was a vehicle parked on the shoulder?
Officer Boyd: It was actually just off the improved shoulder I believe.
The State: ... Did you observe Mr. Kurtz’s vehicle come close to the vicinity of that vehicle?
Officer Boyd: Fairly close, yes, ma’am.
The State: Was his driving pattern in a normal fashion?
Officer Boyd: No, it was not.
The State: Would you consider it erratic?
Officer Boyd: I would.
[Objection as to leading sustained by the trial court]
The State: How would you describe his driving behavior?
Officer Boyd: Unsteady. I would consider it unsafe.
The State: And for what reasons?
Officer Boyd: He was driving on an area of the roadway that was not intended for vehicular travel. His vehicle did not maintain a single lane in a steady fashion. He also appeared to cross over from a traveling lane of traffic onto the improved shoulder as if he wasn’t able to keep his vehicle in a single lane.
The State: How many times in total did you see him cross the line into another lane of traffic?
Officer Boyd: The report indicates several. I’m not sure exactly how many.
The State: So several would be more than once?
Officer Boyd: Most definitely. I would say more than twice.
The State: After you observed this behavior, what did you do?
Officer Boyd: I initiated a traffic stop
The State: And on what basis did you initiate the stop?
Officer Boyd: On the basis of driving on improved shoulder of State Highway 121.
The State: Did you make contact with Mr. Kurtz?
Officer Boyd: Yes, I did.
The State: And did you observe anything upon making contact with him?
Officer Boyd: I noticed a strong odor of an alcoholic beverage coming from his person immediately. I had brief contact with him while he was seated in the vehicle. I noticed that his speech was slurred, heavy tongue.

Officer Boyd further testified he conducted some field sobriety tests and then arrested appellant for driving while intoxicated. On cross examination, defense counsel elicited the following testimony, in pertinent part:

Defense counsel: Does your report reflect that prior to the stop you suspected driving while intoxicated?
Officer Boyd: No, sir.
Defense counsel: Had you seen Mr. Kurtz earlier that day?
Officer Boyd: No, sir.
Defense counsel: Had you smelled his breath [prior to the stop]?
Officer Boyd: No, sir.
Defense counsel: .Had you given him any field sobriety tests or seen him walk or turn or do anything to give you any indicia of intoxication?
Officer Boyd: Not prior to the stop, no, sir.
Defense counsel: So it was only the driving across the line and nothing else that you had of anything that might cause you to suspect that; is that correct?
Officer Boyd: That’s correct.

The totality of this testimony authorized a Terry stop, regardless of the exception in article 14.03(g), which as explained below, does not apply to offenses against the Penal Code. Yet, the trial court concluded: “[Officer Boyd] observed only events which might cause a reasonable suspicion of DWI.” It is well-settled that an officer may stop a motorist when the officer has reasonable suspicion of DWI based on traffic offenses. And, when the trial court concluded “[t]he only possible offenses Boyd may have initially observed Kurtz commit outside the Plano city limits were traffic offenses,” it erred in applying only Subsection (g) because it overlooked Subsection (d), which, in my view, ultimately controls. That is, the very offenses witnessed by Officer Boyd were enough to create reasonable suspicion that appellant was driving while intoxicated. I am further puzzled by the following conclusion: “Under article 14.03(g), Boyd could not legally stop Kurtz for these violations, unless some other provision of the law applied.” To its credit, the trial court got the emphasized portion correct, but failed to carry out an application of Subsection (d), which clearly authorizes an investigative detention.

Thus, in my view, the ultimate issue in this case is whether the trial court abused its discretion in concluding that Officer Boyd could not effect a Terry stop outside his jurisdiction under Subsection (d) due to the provisions of Subsection (g). It is clear to me that the exception in Subsection (g) would only come into play if Officer Boyd had arrested appellant for the traffic offenses. Appellant was not arrested for mere traffic offenses; he was arrested for driving while intoxicated; therefore, the stop was proper under Terry and Subsections (d) and (g). So, not only did the trial court fail to apply long-standing principles of law by incorrectly concluding that Subsection (g) prevents a Terry stop for DWI based on erratic driving, the trial court clearly erred when it suppressed the evidence after determining that, “he observed only events which might cause a reasonable suspicion of a DWI.” As set forth infra, ¶ II, the law has long authorized Terry stops for DWI based upon traffic offenses and the officer’s community caretaking function.

Additionally, the trial court was incorrect in concluding that “Boyd admitted he found probable cause for the DWI arrest only after completing the field sobriety tests, which means he did not observe a DWI offense before then....” I find this conclusion erroneous for three reasons.

First, a trial court is not confined by the conclusions of a witness. The finder of fact may defer to the conclusions of a fact witness, but suppression law is not bound by the “admissions” of fact witnesses. We have held that the subjective intent of the officer conducting the stop is irrelevant. Further, an objectively valid stop may be upheld even if made for an improper reason. A court’s review is not limited to the violations an officer lists in making the stop; the test is whether the articulated facts about which the officer testified would, in light of the officer’s experience and personal knowledge, together with inferences from those facts, warrant a reasonable person to believe that a violation had occurred. 'Thus, as a basis for the trial court’s conclusion that the extraterritorial stop was improper, Officer Boyd’s “admission” was not controlling.

Second, I do not understand what the trial court means by “he did not observe a DWI offense before then ...” There is no set category of facts which give rise to a reasonable suspicion of DWI. Subsection (g) only limits arrests for traffic violations. If construed otherwise, Subsection (d) and the clear authority under Subsection (g) to make extra-territorial stops for offenses under the Penal Code, would be rendered meaningless. Specifically, if an officer were not allowed to effect a stop to investigate an offense under Subsection (d) simply because the reasonable suspicion was based on witnessing various traffic offenses, it would undermine well-established law and subvert the purposes and intent of Subsection (d). For example, violations of Chapter 49 are almost always evidenced by traffic offenses, such as failure to maintain a lane or failure to stop at a traffic light. Under certain circumstances then, simple traffic violations may, in and of themselves, authorize an investigative detention outside one’s jurisdiction. The statute does not prohibit a stop supported by reasonable suspicion that any felony or other violation listed under 14.03(d) is taking place simply because a city officer, outside his jurisdiction, witnesses only traffic offenses. Therefore, the exception in Subsection (g) does not mean that an officer has to actually witness a person drink excessively, climb behind a wheel, and drive. On the contrary, there are many acts that fall short of this example which provide reasonable suspicion that a person is driving drunk.

Third, finding probable cause after an initial stop does not run afoul of the law— in fact, long-standing precedent clearly authorizes it. The reasonable suspicion required to detain is a much lower standard than what is required for probable cause to arrest. Thus, whether Officer Boyd had probable cause to stop appellant was irrelevant, because Boyd did not need probable cause to do so; rather, he needed only a reasonable suspicion based upon articula-ble facts. So, as in the usual DWI case, probable cause to arrest was not established until after an investigatory detention when Officer Boyd conducted field sobriety tests and smelled the odor of alcohol.

Considering the unimpugned testimony of Officer Boyd, I would conclude that the trial court abused its discretion because it could reasonably have reached only one decision — that the acts witnessed by Officer Boyd supplied reasonable suspicion to effect a Terry stop for DWI under both Subsections (d) and (g). Appellant was driving erratically during the early hours of the morning. Therefore, I would find that the trial court abused its discretion because such facts point to only one decision: that the actions of appellant gave rise to a reasonable suspicion that criminal activity — other than mere traffic violations-was afoot.

II. Article 14.03(g) does not prevent an extraterritorial stop based on reasonable suspicion of crimes against the Penal Code and those listed in article 14.03(d)

As explained above, the trial court misconstrued the law: Officer Boyd was not bound by the exception in Subsection (g) because he did not arrest appellant just for traffic violations. Officer Boyd lawfully stopped appellant based on reasonable suspicion of DWI, and upon further investigation, found probable cause to arrest for DWI. Officer Boyd’s actions did not run afoul of the statute or case law. Again, Subsection (g) authorizes a peace officer outside his jurisdiction to make a warrant-less arrest when a person commits any offense within the officer’s presence or view, except for traffic offenses. TexCode CRim. PROC. Ann. art 14.03(g). To hold otherwise would undermine the plain meaning of the statute and well-seasoned principals of state and federal law.

A police officer may stop and briefly detain an individual for investigative purposes on less information than would be required to support a probable cause determination. Indeed, circumstances short of probable cause for an arrest may justify temporary detention for the purpose of investigation because an investigation is considered to be a lesser intrusion upon the personal security of the individual. The authority to detain a citizen based on reasonable suspicion is a judicial doctrine grafted onto the statutory authority to arrest for probable cause. That is, an investigative detention is widely accepted as part of the authority to arrest. To justify such a stop, the officer must have observed specific, objective, articulable facts which, in light of the officer’s experience and personal knowledge, together with inferences from those facts, would warrant a reasonable person to believe that a criminal violation had occurred. Reasonable suspicion requires that there is something out of the ordinary occurring and some indication that the unusual activity is related to crime.

Most importantly, it is not necessary that the conduct violate a particular statute in order to give rise to reasonable suspicion. That is, an activity observed by an officer need not be a crime in itself to justify an investigative detention; it need only be sufficient to create a reasonable suspicion that some activity out of the ordinary was occurring or had occurred, that the defendant had a connection to this activity, and that the activity was related to a crime. Therefore, even though the conduct witnessed by Officer Boyd were but mere traffic violations, they were sufficient to support reasonable suspicion of driving while intoxicated. It should not matter what appellant did, whether he violated a traffic law or whether he did some other act in Officer Boyd’s view, as long as the conduct supported a reasonable suspicion that appellant was driving while intoxicated. The majority incorrectly focuses on violations of the traffic laws to conclude the extra-territorial stop was improper. But because appellant need not have violated any law to support reasonable suspicion, the majority’s logic is unsound. Namely, why should the violation of traffic laws, as a basis for reasonable suspicion of DWI, trigger the exception in Subsection (g), when some other suspicious behavior that is not a violation of any law, authorize an extra-jurisdictional arrest under Subsection (d)? The stop was proper only because the conduct was sufficient to warrant a reasonable person to believe that appellant was driving drunk. As such, the exception in Subsection (g) does not effect the outcome of this case, and the majority’s relegation to it is improper.

I would conclude that Officer Boyd’s action was objectively reasonable to stop appellant based on the “specific and articu-lable facts which, taken together with rational inferences from those facts, warranted” reasonable suspicion of DWI, not that an officer outside his jurisdiction cannot develop reasonable suspicion for DWI upon witnessing traffic offenses. “It would have been poor police work indeed” for Officer Boyd “to have failed to investigate this behavior further” and allow appellant to drive on into the night simply because Subsection (g) prevents arrests for traffic offenses outside an officer’s jurisdiction. In sum, the exception in Subsection (g) does not disturb the boundaries of Terry and corresponding state law when considering offenses against the Penal Code. Thus, Terry and its progeny should prevail and remain an empirical question for the finder of fact when evaluating the testimony of officers patrolling outside their jurisdictions.

III. The Legislative Intent of the Statute Does Not Support the Majority’s Conclusion

Considering the foregoing conclusions in the backdrop of Subsection (d), Terry, and its progeny, it is easy to see that the trial court’s conclusions are illogical, misstate the law, and moreover, run counter to the Legislative intent of article 14.03(d).

I am persuaded by Justice Fitzgerald’s dissent, which concludes the Legislature intended to broaden rather than restrict a peace officer’s power to arrest outside his or her jurisdiction, unless of course, the arrest is for traffic violations. Accordingly, I would go one step further and conclude that the Legislative intent of the statute supports a construction that any peace officer anywhere in the state could have made this stop. Therefore, whether a municipality is either type-A or type-B is irrelevant. And, it is my belief that the Legislature passed Subsection (d) for just that reason — to afford more protection to citizens across the state regardless of what type municipality they reside in by allowing an officer outside his jurisdiction to arrest for anything under Subsection (d), but expressly excluding petty traffic offenses as intended by Subsection (g). In short, the majority’s holding here subverts the plain meaning of the statute and would lead to absurd results that the Legislature could not have possibly intended.

Conclusion

Based on the reasoning set forth herein, I would reverse the court of appeals and remand the cause for trial on the merits.

      . See TEX.CODE CRIM. PROC. art. 38.23(a) ("No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas ... shall be admitted in evidence against the accused on the trial of any criminal case”).

      . State v. Kurtz, 111 S.W.3d 315 (2003).

      . Chapter 415 of the Government Code was repealed when the Occupations Code was enacted. See Occupations Code Act of May 28, 1999, 76th Leg., R.S., ch. 388, § 6(b)(1), 1999 Tex. Gen. Laws 1431, 2440. It was replaced by Chapter 1701 of the Occupations Code. According to the caption of the Act, it was "a nonsubstantive revision of statutes.” Id.., at 1431.

      . The Texas Fair Defense Act of June 14, 2001 amended article 14.06(a) to require that the arrested person be taken before the magistrate not later than 48 hours after the arrest, and it permitted the taking to be made by a person who had custody of the arrested person. See Acts, 77th Leg., R.S., ch. 906, § 3, 2001 Tex. Gen. Laws 1800, 1801.

      . "(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:
      (1) to stop, stand, or park;
      (2) to accelerate before entering the main traveled lane of traffic;
      (3) to decelerate before making a right turn;
      (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
      (5) to allow another vehicle traveling faster to pass;
      (6) as permitted or required by an official traffic-control device; or
      (7) to avoid a collision.”

      . "(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:
      (1) shall drive as nearly as practical entirely within a single lane; and
      (2) may not move from the lane unless that movement can be made safely.”

      . See Tex.Code Crim. Proc. art. 2.12(l)-(3).

      . “(6) law enforcement agents of the Texas Alcoholic Beverage Commission;
      "(7) each member of an arson investigating unit commissioned by a city, a county, or the state;
      "(8) officers commissioned under Section 37.081, Education Code, or Subchapter E, Chapter 51, Education Code; "(9) officers commissioned by the General Services Commission;
      "(10) law enforcement officers commissioned by the Parks and Wildlife Commission;
      "(11) airport police officers commissioned by a city with a population of more than 1.18 million that operates an airport that serves commercial air carriers;
      "(12) airport security personnel commissioned as peace officers by the governing body of any political subdivision of this state, other than a city described by Subdivision (11), that operates an airport that serves commercial air carriers;
      "(13) municipal .park and recreational patrolmen and security officers;
      "(14) security officers and investigators commissioned as peace officers by the comptroller;
      "(15) officers commissioned by a water control and improvement district under-» Section 49.216, Water Code;
      "(16) officers commissioned by a board of trustees under Chapter 54, Transportation Code;
      "(17) investigators commissioned by the Texas State Board of Medical Examiners;
      "(18) officers commissioned by the board of managers of the Dallas County Hospital District, the Tarrant County Hospital District, or the Bexar County Hospital District under Section 281.057, Health and Safety Code;
      "(19) county park rangers commissioned under Subchapter E, Chapter 351, Local Government Code;
      "(20) investigators employed by the Texas Racing Commission;
      “(21) officers commissioned under Chapter 554, Occupations Code;
      "(22) officers commissioned by the governing body of a metropolitan rapid transit authority under Section 451.108, Transportation Code, or by a regional transportation authority under Section 452.110, Transportation Code;
      "(23) investigators commissioned by the attorney general under Section 402.009, Government Code;
      "(24) security officers and investigators commissioned as peace officers under Chapter 466, Government Code;
      "(25) an officer employed by the Texas Department of Health under Section 431.2471, Health and Safety Code;
      "(26) officers appointed by an appellate court under Subchapter F, Chapter 53, Government Code;
      "(27) officers commissioned by the state fire marshal under Chapter 417, Government Code;
      "(28) an investigator commissioned by the commissioner of insurance under Article 1.10D, Insurance Code;
      "(29) apprehension specialists commissioned by the Texas Youth Commission as officers under Section 61.0931, Human Resources Code;
      "(30) officers appointed by the executive director of the Texas Department of Criminal Justice under Section 493.019, Government Code;
      "(31) investigators commissioned by the Commission on Law Enforcement Officer Standards and Education under Section 1701.160, Occupations Code;

        "(32) commission investigators commissioned by the Texas Commission on Private Security under Section 1702.061(f), Occupations Code;
      "(33)[ as amended by Act of June 18, 2003, 78th Leg., R.S., ch. 235, § 16, 2003 Tex. Gen. Laws 1063, 1070, and Act of June 20, 2003, 78th Leg., R.S., ch. 930, § 12, 2003 Tex. Gen. Laws 2773, 2777] the fire marshal and any officers, inspectors, or investigators commissioned by an emergency services district under Chapter 775, Health and Safety Code.
      "(33)[as amended by Act of June 20, 2003, 78th Leg., R.S., ch. 474, § 1] the fire marshal, and any investigators commissioned by an emergency services district to assist that fire marshal, under Subchapter F, Chapter 775, Health and Safety Code; and
      "(34) officers commissioned by the State Board of Dental Examiners under Section 254.013, Occupations Code, subject to the limitations imposed by that section.” Id., art. 2.12(6)-(34).

      . Brief, at 6.

      . Id., at 8.

      . Id., at 10.

      . Ibid, (quoting Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 899 (Tex.2000) (deciding the meaning of the term "damages")).

      . Newburn v. Durham, 88 Tex. 288, 289, 31 S.W. 195, 195 (1895).

      . Id., at 288, 31 S.W., at 195.

      . Brief, at 12-13.

      . Texas Almanac 2004-2005 165.

      . See id., at 177.

      . See State's Exhibit 1.

      . 104 S.W.3d 103 (Tex.Cr.App.2003).

      . Brief, at 11-12.

      . See Tex.Code Crim. Proc art. 14.03(d), supra, at 4.

      . Brief, at 9.

      . George E. Dix & Robert O. Dawson, 40 Texas Practice — Criminal Practice and Procedure § 10.14 (2d ed.2001) (footnote omitted).

      . See Tex. Trans. Code 543.003.

      . See id., § 543.004.

      . See id., § 543.002.

      . See TexCode Crim. Proc. art. 38.23(a).

      . TexCode Crim. Proc. Ann. art. 14.03(d),(g) (Vernon Supp.2004).

      . Subsection (g) clearly authorizes extra-territorial stops based on offenses against the Penal Code. The statute provides, in pertinent part, as follows:
      "A peace officer ... who is licensed under the Government Code, and is outside of [his] jurisdiction may arrest without a warrant a person who commits any offense within the officer’s presence or view, except that an officer outside the officer’s jurisdiction may arrest a person for a violation of [the Transportation Code] only if [he is a Ranger or an officer with the TDPS].’’ TexCode Crim. Proc. Ann. art 14.03(g)(emphasis added).

        .Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985). If a trial court's findings are supported by the record, an appellate court is not at liberty to disturb them. Etheridge v. State, 903 S.W.2d 1, 15 (Tex.Crim.App.1994). However, the trial court here makes no findings relating to the observations of appellant’s driving, but simply recites the facts in the court’s conclusions of law.

      . State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999)

      . Id.

      . Id.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Tex.Code Crim. Proc. Ann. art 14.03(g); United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002).

      . Fatemi v. State, 558 S.W.2d 463, 466 (Tex.Crim.App.1977) (finding no specific, articula-ble facts to justify detention); see e.g., Klare v. State, 76 S.W.3d 68, 75 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d) (citing various factual circumstances that support or fail to create reasonable suspicion of DWI under the totality of the circumstances).

      . If Officer Boyd had failed to find probable cause appellant was driving while intoxicated after the initial stop, but arrested appellant for only the traffic violations, then, Officer Boyd would have run afoul of Subsection (g). But that did not happen. Rather, there was reasonable suspicion of DWI based on the traffic offenses; probable cause was developed after smelling the alcohol and conducting the field sobriety tests; and an arrest was made for DWI — not traffic offenses. Nothing here offends the law.

      .It is important to note here that there is no indication in the record that the trial court, in its discretion as the finder of fact, disbelieved Officer Boyd’s testimony about what he witnessed appellant do. On the contrary, the trial court's conclusions of law indicate that the officer's credibility was not in question, and that the trial court accepted as true the events to which Officer Boyd testified. Therefore, our review is de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Brother v. State, 85 S.W.3d 377 (Tex.App.-Fort Worth 2002, pet. granted) (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000)).

      . See Wright v. State, 7 S.W.3d 148, 152 (Tex.Crim.App.1999); Terry, 392 U.S. at 29, 88 S.Ct. 1868 (“The sole justification of the search ... is the protection of the police officer and others nearby...."); Townsend v. State, 813 S.W.2d 181, 185 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd) (weaving back and forth across three lanes at 2 a.m. is sufficient to raise a reasonable suspicion of driving while intoxicated).

      . Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. 1868 (applying an objective test).

      . Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001).

      . Walter v. State, 28 S.W.3d 538, 543 (Tex.Crim.App.2000).

      . Garcia, 43 S.W.3d at 530; Davis v. State, 947 S.W.2d 240, 242-43 (Tex.Crim.App.1997).

      . See Garcia, 43 S.W.3d at 530.

      . Klare v. State, 76 S.W.3d at 72-77.

      . See Stone v. State, 703 S.W.2d 652, 654 (Tex.Crim.App.1986); Cook v. State, 63 S.W.3d 924, 928-29 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (finding weaving on the road at 2:30 a.m. objectively reasonable to stop and detain for DWI); Townsend v. State,
        813 S.W.2d at 185; Gajewski v. State, 944 S.W.2d 450, 452 (Tex.App.-Houston [14th Dist.] 1997, no pet.); Fox v. State, 900 S.W.2d 345, 347 (Tex.App.-Fort Worth 1995, pet. improv. granted) (reasonable suspicion existed when officer observed defendant weaving back and forth within his lane); Raffaelli v. State, 881 S.W.2d 714, 716 (Tex.App.-Texarkana 1994, pet. ref'd); Barraza v. State, 733 S.W.2d 379, 380 (Tex.App.-Corpus Christi 1987) (reasonable suspicion existed when officer observed defendant weaving within his own lane and making two improper turns), affd, 790 S.W.2d 654 (Tex.Crim.App.1990); Miffleton v. State, 728 S.W.2d 880, 883 (Tex.App.-Austin 1987) (reasonable suspicion existed based on defendant’s rapid acceleration, weaving and excessive speed), affd, 777 S.W.2d 76 (Tex.Crim.App.1989).

      . See Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App.1992).

      . Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997); Stone v. State, 703 S.W.2d at 654 (reasonable suspicion to stop based on weaving; probable cause to arrest based on field sobriety tests, the smell of alcohol, and other facts.).

      . Arvizu, 534 U.S. at 273, 122 S.Ct. 744; Johnson v. State, 658 S.W.2d 623 (Tex.Crim.App.1983); Williams v. State, 621 S.W.2d 609 (Tex.Crim.App.1981).

      . See Stone v. State, 703 S.W.2d at 654—55.

      . Klare v. State, 76 S.W.3d at 73-74.

      . Berkemer v. McCarty, 468 U.S. 420, 437-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Yeager v. State, 104 S.W.3d 103, 107 (Tex.Crim.App.2003).

      . Terry v. Ohio, 392 U.S. at 10, 88 S.Ct. 1868; Guzman, 955 S.W.2d at 90.

      . See id. We have held that, for purposes of warrantless arrests, Texas constitutional law does not afford more protection than federal law. Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.1997).

      . Terry v. Ohio, 392 U.S. at 10, 88 S.Ct. 1868; Guzman, 955 S.W.2d at 90.

      . Leighton v. State, 544 S.W.2d 394 (Tex.Crim.App.1976).

      . See Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995).

      . See id.

      . See Davis v. State, 947 S.W.2d at 242-43; Valencia v. State, 820 S.W.2d 397, 400 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd).

      . Davis, 947 S.W.2d at 244.

      . Terry, 392 U.S. at 22-23, 88 S.Ct. 1868; Gajewski v. State, 944 S.W.2d at 452.

      . See Martinez v. State, 29 S.W.3d 609, 611—12 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d) (reasonable to stop driver on freeway when driver swerved briefly onto shoulder of road and back in moderate to heavy traffic even though officer believed offense was failing to maintain a single marked lane rather than driving on shoulder); Held v. State, 948 S.W.2d 45, 51 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd) (weaving across several lanes sufficient to give rise to reasonable suspicion that driver intoxicated; irrelevant whether weaving itself is or is not criminal event); Raffaelli v. State, 881 S.W.2d at 716 (weaving within lane and speeding after exiting sufficient for reasonable suspicion to stop vehicle).

      . See Terry, 392 U.S. at 5, 88 S.Ct. 1868 (question of case is whether police may investigate suspicious circumstances) (emphasis added).

      . Terry, 392 U.S. at 22-23, 88 S.Ct. 1868 (noting that Terry and his cohorts did not violate any laws, but their actions, taken together, warranted further investigation).

      . See Davis v. State, 947 S.W.2d at 242-43; Cook v. State, 63 S.W.3d at 929.

      . Terry, 392 U.S. at 21-22, 88 S.Ct. 1868.

      . See Tex.Code Crim. Proc. Ann. art. 14.03(g).

      . Terry, 392 U.S. at 23, 88 S.Ct. 1868. The Fourth Amendment does not require police officers "to simply shrug [their] shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Cook v. State, 63 S.W.3d at 929.

      . See Terry, 392 U.S. at 29, 88 S.Ct. 1868 (Fourth Amendment limitations will be developed in the concrete factual circumstances of the individual case).

      . State v. Kurtz, 111 S.W.3d 315, 323-24 (Tex.App.-Dallas 2003).

      . See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).


source: Caselaw Access Project

author: JOHNSON, J., - HERVEY, J.,

license: Public Domain

text:
    John PATTERSON, Appellant, v. The STATE of Texas.
    No. PD-0117-03.
    Court of Criminal Appeals of Texas, En banc.
    Nov. 10, 2004.
    Rehearing Denied Jan. 19, 2005.
    Forrest Lumpkin, Austin, for Appellant.
    Michael Scott Taliaferro, Assistant District Attorney, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court

in which MEYERS, PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was charged with various sexual offenses in a three-count indictment comprising five paragraphs. Count I, paragraph one, alleged aggravated sexual assault of a child by causing penetration of the victim’s anus by appellant’s sexual organ (Tex. Pen.Code § 22.021(a)(l)(B)(i)); paragraph two alleged aggravated sexual assault of a child by causing the victim’s anus to contact appellant’s sexual organ (Tex. Pen.Code § 22.021(a)(l)(B)(iv)). Count II, paragraph one, alleged indecency with a child by touching the vitim’s anus (Tex. Pen.Code § 21.11(a)(1)); paragraph two alleged indecency with a child by causing the victim to touch appellant’s genitals (Tex. Pen.Code § 21.11(a)(1)). Count III alleged indecency with a child by exposure of appellant’s genitals knowing that a child was present (Tex. Pen.Code § 21.11(a)(2)(A)). All of the charges arose from two incidents involving the eleven-year-old daughter of appellant’s co-workers during a single night. All charges were submitted to the jury as charged except the indecency with a child by contact (the victim touching appellant’s penis), which was submitted as an attempt. (Tex. Pen.Code § 15.01(a)). The jury convicted on all paragraphs and assessed terms of imprisonment ranging from five to thirty-five years for each of the offenses.

The court of appeals affirmed the judgments of conviction for aggravated sexual assault of a child by penetration, aggravated sexual assault of a child by contact, and attempted indecency with a child by contact, but reversed the judgments of conviction for indecency with a child by contact and indecency with a child by exposure, holding that those convictions violated the constitutional guarantee against double jeopardy. Patterson v. State, 96 S.W.3d 427, 431 (Tex.App.-Austin 2002). Both the state and appellant petitioned this Court for discretionary review. We refused appellant’s petition and granted the state’s petition.

Where a defendant is convicted of the offense of indecency with a child by exposure and also of the offense of aggravated sexual assault of a child, is the indecency conviction barred by double jeopardy if that exposure occurred prior to the aggravated sexual assault and during the defendant’s unsuccessful attempt to commit a third offense that, if completed, would not have been jeopardy barred?

We conclude that the court of appeals reached the correct result, and we therefore affirm.

Facts

After drinking in a bar with co-workers to celebrate the co-workers’ wedding anniversary, appellant spent the night at them home. Appellant was supposed to sleep in the co-workers’ spare room, along with his live-in girlfriend’s young son, who was already sleeping there. However, at some point during the night, appellant went to the room where his co-workers’ two young daughters, aged 10 and 11, were sleeping. After attempting to get into bed with the younger daughter, who pushed him off the bed, appellant climbed into bed with the eleven-year-old. According to the victim’s testimony at trial, appellant sexually assaulted her on two separate occasions during the night.

The victim testified that appellant got into bed with her, lay behind her, unbuttoned his pants, grasped her hand, and tried unsuccessfully to make her touch his “private.” When she pulled her hand away, the victim testified, he pushed his “private” inside her “butt.” After a short time, the victim got up and went to the bathroom. The second occurrence was essentially identical to the first. The victim testified that she returned to the bed, and that appellant again tried to force her to put her hand on his “private” and, failing once again, he put his “private” inside her “butt” a second time.

After the second episode, the victim got up to go to the bathroom again, and this time, accompanied by her younger sister, she went to her parents’ room. The victim woke the parents and told them what had happened. The victim’s father went downstairs to call the police, while the mother had the girls retrieve their bedclothes from the bedroom, then took them downstairs to await the arrival of the police. Appellant was arrested in the spare room.

The Decision of the Court of Appeals

On appeal, appellant argued that the convictions for aggravated sexual assault, indecency with a child by contact, and indecency with a child by exposure violated the constitutional prohibition against multiple punishments for the same offense. The court of appeals found that the evidence was legally sufficient to prove that appellant twice penetrated the complainant’s anus with his penis and that he tried to cause the victim to touch his penis. It therefore affirmed the two convictions for aggravated sexual assault of a child (by penetration and by contact) and the conviction for attempted indecency by contact. Patterson v. State, supra. However, the court of appeals held that the other sexual contacts between the appellant and the complainant were incident to the penetrations, and therefore the second indecency by contact offense and the exposure were included within the aggravated sexual assaults. Believing that the legislature has not indicated an intent to inflict multiple punishments for the same conduct, the court of appeals reversed appellant’s convictions for indecency with a child by contact and indecency with a child by exposure. Id. at 433.

In its petition for discretionary review to this Court, the state challenges only the reversal of the conviction for indecency with a child by exposure. The state argues that the prohibition against double jeopardy does not negate a clearly expressed legislative intent to impose multiple punishments. The state also argues that the exposure committed during appellant’s unsuccessful attempt to get the victim to touch his penis was distinct from the exposure incident to the aggravated sexual assault. Reasoning that the attempted sexual contact, had it been successful, would have been an offense distinct from the aggravated sexual assault, the state argues that the exposure preceding the attempted sexual contact must also be distinct from the exposure preceding the assault. However, that argument must fail, because a single continuing exposure, even in conjunction with other simultaneous offenses, remains a single exposure.

Analysis

While the state sets out its ground for appeal as a question of double jeopardy, we do not find it necessary to address the constitutional issue, as the case can be resolved on the basis of statutory construction.

“Sexual contact” is defined as “except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person -with the intent to arouse or gratify the sexual desire of any person.” Tex. Penal Code, § 21.01(2). Section 21.11, Indecency with a Child, which includes the offense of indecency by exposure, defines “sexual contact” as

the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Tex. Penal Code, § 21.11(c).

Section 3.01 of the Penal Code defines “criminal episode.”

In this chapter, “criminal episode” means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.

In section 3.03 of the Penal Code, the legislature determined that multiple offenses arising from the same criminal episode and tried in a single criminal action shall, in general, be punished with concurrent sentences, but it also determined that there should be two exceptions to this general rule: intoxication manslaughter, and sexual offenses committed against children. For those offenses, the legislature permitted consecutive sentences.

If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(1) [intoxication manslaughter] or
(2) an offense:
(A) under Section 21.11 [indecency with a child by exposure and contact], 22.011 [sexual assault], 22.021 [aggravated sexual assault], 25.02 [prohibited sexual contact], or 43.25 [sexual performance by a child] against a victim younger that 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violation of the same section more than once or is convicted of violations of more than one section; or
(B) [same provisions apply to plea bargains].

Tex. Penal Code § 3.03(b).

By its plain language, this provision indicates an intention by the legislature to both permit consecutive sentencing and exempt these enumerated offenses from the consequences of the definition of “criminal episode” found in section 3.01; for these offenses only, repeated commission of the same offense or violations of multiple subsections within a single section and tried in a single criminal action may be punished by consecutive sentences.

It is clear that sexual exploitation of children is of great concern to the legislature. The offenses enumerated by the legislature cover a range of deviant sexual conduct, beginning with exposure and continuing though sexual contact to penetration and including incest and child prostitution. The scheme encompasses escalation of abuse; no matter where in the range the perpetrator stops, the offense is complete at that point. That is not to say that every offense in the range can in all cases be prosecuted as a separate offense. While it is clear from the plain language of the various statutes that the legislature intended harsh penalties for sexual abuse of children, there is nothing in the language to suggest that it intended to authorize “stop-action” prosecution. Just as a conviction for a completed offense bars prosecution for an attempt to commit the same offense, a conviction for an offense set out in § 3.03 bars conviction for conduct that, on the facts of the case, is demonstrably part of the commission of the greater offense. For example, indecency by genital exposure of oneself in the course of manual penetration of another are separate offenses, while pende contact with mouth, genitals, or anus in the course of penile penetration will be subsumed. Thus, indecency by exposure may or may not be a part of sexual assault or indecency by contact, depending on the facts of the case.

In this case, there were two essentially identical assaults, separated by a short period of time. On both occasions, appellant exposed his genitals and penetrated the complainant’s anus. The assault in count I, paragraph two, was alleged as aggravated sexual assault of a child by causing contact between appellant’s genitals and complainant’s anus. The assault in count I, paragraph one, was alleged as aggravated sexual assault of a child by penetration of complainant’s anus by appellant’s genitals, with a separate paragraph alleging indecency with a child by contact by touching the complainant’s anus with appellant’s genitals. The court of appeals affirmed the two convictions for aggravated sexual assault, then correctly found that penetration required contact and reversed that conviction. The state does not challenge that ruling. The record in this case does not show an occasion during the assaults when the exposure was a separate offense. Under the facts of these incidents, exposure was incident to and subsumed by the aggravated sexual assault.

While we disagree with some of its reasoning, we find, based on the provisions of § 3.03, that the court of appeals did not err in its conclusions, given the facts of this case as established at trial. We affirm the judgment of the court of appeals.

KELLER, P.J., concurs in result.

HERVEY, J., filed a concurring opinion in which KEASLER, J., joined.

- HERVEY, J.,

filed a concurring opinion in which KEASLER, J., joined.

I do not agree with the assertion in the majority opinion that this is not a double jeopardy case. This is a “multiple punishments for the same offense in a single proceeding” double jeopardy case in which the same act or conduct violates separate statutory provisions. See Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Whalen v. United States, 445 U.S. 684, 688-93, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). When the same act or conduct violates separate statutory provisions, the double jeopardy clause does not prohibit a legislature from authorizing multiple punishments in a single proceeding for these separate statutory offenses even when they are the “same” for double jeopardy purposes. The dis-positive issue is not whether these separate statutory offenses are the “same” but whether the legislature has authorized multiple punishments for them. See Whalen, 445 U.S. at 688, 100 S.Ct. 1432 (“question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized”).

Determining whether separate statutory offenses committed by the same act or conduct are the “same” under Blockburger is merely an aid in deciding whether the legislature has authorized multiple punishments for these offenses. See Whalen, 445 U.S. at 688-93 and at 711, 100 S.Ct. 1432 (Rehnquist, J., dissenting) (Blockburger test is simply an attempt to determine legislative intent). If these separate statutory offenses are the “same” under Block-burger, then multiple punishments may not be imposed in a single proceeding for these “same” offenses unless the legislature has clearly and specially provided for multiple punishments. See Whalen, 445 U.S. at 692-93, 100 S.Ct. 1432. If, however, these separate statutory offenses are not the “same” under Blockburger, then it is generally presumed that the legislature intends to permit multiple punishments for them. See id. (“courts have long adhered to the rule that Congress did intend to permit consecutive sentences ... when each offense ‘requires proof of a fact which the other does not’ ”).

In Hunter, 459 U.S. at 368-69, 103 S.Ct. 673, the Court stated:

Our analysis and reasoning in Whalen and [citation omitted] lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court’s power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments. [Footnote omitted]
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

I would decide that the indecency by exposure offense and the aggravated sexual assault offenses are the “same” under our traditional approach for determining “sameness” for double jeopardy purposes. See Parrish, 869 S.W.2d at 354 (state law describes “includedness in much the same way Blockburger describes sameness”). Under this approach, the Court could decide that these offenses are the “same” because the former was included within the proof necessary to establish the latter. See Broussard v. State, 642 S.W.2d 171, 173 (Tex.Cr.App.1982) (issue is “whether or not the State, in each case, when presenting its case to prove the offense charged, also includes the lesser included offense”).

Concluding that these offenses are the “same” merely begins the analysis. See Whalen, 445 U.S. at 688-93, 100 S.Ct. 1432. The issue remains whether the legislature has clearly and specially authorized multiple punishments for these “same” offenses that appellant committed against the eleven-year-old victim. See id.

The opinion of the Court of Appeals did not address § 3.03(b)(2)(A), Tex. Pen.Code, which provides:

(b) If the accused is found guilty of more than one offense arising out of the same criminal episode,[] the sentences may run concurrently or consecutively if each sentence is for a conviction of:

(2) an offense:
(A) under Section 21.11, 22.011, 22.021, 25.02, or 43.25[] committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section ....

This statute does not clearly or specially authorize multiple punishments in cases like this. See Whalen, 445 U.S. at 691, 693-94, 100 S.Ct. 1432 (deciding that the particular statute in that case did not authorize multiple punishments for two offenses arising out of same criminal transaction). With these comments, I concur only in the Court’s judgment.

      . The state has not appealed the decision of the court of appeals as to the indecency with a child by contact.

      . We do not address whether sexual performance by a child and incest are available as separate offenses when the alleged conduct falls within the proscriptions for both conduct and relationship.

      . See, e.g., Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct 180, 76 L.Ed. 306 (1932) (where same act or transaction violates separate statutory provisions, the test to be applied to determine whether they are the "same” is "whether each provision requires proof of a fact which the other does not”); Parrish v. State, 869 S.W.2d 352, 354 (1994) (state law describes “includedness in much the same way Blockburger describes sameness”); see also Hunter, 459 U.S. at 368-69, 103 S.Ct. 673 (legislatures may authorize multiple punishments in a single proceeding for "same conduct” under Blockburger); Whalen, 445 U.S. at 701, 100 S.Ct. 1432 (Rehnquist, J., dissenting) ("Congress could, if it so desired, authorize cumulative punishments for violation of two separate statutes, whether or not those statutes defined 'separate offenses’ in some abstract sense”).

      . This analysis, of course, would not apply when different acts or conduct violate separate statutory provisions even when these different acts or conduct occur during the same criminal episode or transaction.

      . And, this is what the Court of Appeals essentially decided. See Patterson, 96 S.W.3d at 432-33 (indecency by exposure offense was included within the aggravated sexual assault offenses).

      . The Court of Appeals did not consider the "sameness” question to be dispositive either. See Patterson v. State, 96 S.W.3d 427, 432 (Tex.App.-Austin 2002) (absent clear indication of contrary legislative intent, it is presumed that legislature did not intend to authorize multiple punishments for two offenses that are the same under Blockburger) and at 433 (in absence of a clear indication of legislative intent to inflict multiple punishments, appellant’s conviction for indecency with a child by exposure based on the same conduct for which he was convicted of aggravated sexual assault constitutes impermissible multiple punishments for the same offense).

      . Appellant was found guilty of more than one offense (indecency by exposure and aggravated sexual assault) arising out of the same criminal episode even though these offenses might be considered the "same” under Blockburger.

      . See § 21.11(a)(2)(A), Tex. Pen.Code, (indecency with a child); § 22.021(a)(l)(B)(I), Tex Pen.Code, (aggravated sexual assault).