Opinions Released March 23, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

State v. Bishop, No. 13-16-00322-CR (Memorandum Opinion by Justice Rodriguez; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this interlocutory appeal from an order granting a motion to suppress, the Thirteenth Court of Appeals analyzed the police officer’s reasonable suspicion to detain and frisk the defendant.

South Padre Island Police Officer Jose Cisneros was flagged down by an anonymous individual at 6:30 P.M. during spring break of 2015. The citizen pointed to two individuals and told Officer Cisneros that the individuals had just emerged from a burning vehicle and were walking away. Officer Cisneros approached the individuals, one of whom was defendant Joshua Bishop. Bishop was wearing baggy clothes and a coat, carrying luggage, and swaying as he walked in a zigzag pattern. Officer Cisneros described Bishop as nervous and sweating, with slurred speech, red eyes, and a “droopy” expression. Bishop also repeatedly put his hands in his pockets, despite being asked not to do so by Officer Cisneros. Officer Cisneros then frisked Bishop for weapons, and saw a bag of what appeared to be cocaine sticking out of Bishop’s pocket. Officer Cisneros removed the bag and discovered that it was in fact full of Xanax pills. Bishop was arrested and charged with felony possession of a controlled substance between 28 grams and 200 grams.

Bishop filed a motion to suppress. Officer Cisneros testified to the above facts, although Bishop emphasized that most of these facts were not in Officer Cisneros’ written report of the incident. For example, the report did not mention the concerned citizen flagging Officer Cisneros down, the defendant’s baggy clothing, the luggage, or Bishop repeatedly putting his hands in his pockets. Officer Cisneros indicated that he did not have time to include all the details due to the 24-shifts he was working over spring break.

The trial court entered findings of fact rejecting large portions of Officer Cisneros’ testimony, which the court characterized as unreliable. The court included a finding that much of Officer Cisneros’ testimony was not included in or consistent with his original written report. The court then granted the motion to suppress. The State filed an interlocutory appeal.

Held: Officer Cisneros lacked reasonable suspicion to justify a weapons frisk. The trial court thus did not err by granting Bishop’s motion to suppress.

On appeal, the State argued that Officer Cisneros has reasonable suspicion to detain Bishop and reasonable suspicion to pat him down for weapons, and that the pat down did not exceed its proper scope.

Reasonable suspicion for detention

First, the Thirteenth Court of Appeals examined Officer Cisneros’ reasonable suspicion to detain Bishop. A police officer may detain an individual if he has reasonable suspicion supported by specific, articulable facts that lead him to reasonably conclude the individual has been or soon will be engaged in criminal activity. The trial court found that Officer Cisneros was investigating a burning vehicle and that he observed signs that Bishop was intoxicated. The Thirteenth Court held that these facts constituted reasonable suspicion for Officer Cisneros to detain Bishop.

Reasonable suspicion for weapons frisk

Next, the Thirteenth Court analyzed Officer Cisneros’ reasonable suspicion to justify his pat down of Bishop. A police officer may conduct a limited pat down or “frisk” for weapons if the officer reasonably suspects—based on specific, articulable facts—that the detained individual may be presently armed and dangerous. The Thirteenth Court noted that the trial court did not believe Officer Cisneros’ testimony regarding Bishop repeatedly putting his hands in his pockets. Rather, the trial court found only that Bishop was nervous, sweating, and possibly intoxicated. The Thirteenth Court deferred to these credibility determinations. The court then noted that nervousness is not probative, and sweating is normal in south Texas. Moreover, Bishop was one of many intoxicated people on South Padre Island during spring break. Thus, Officer Cisneros’ pat down of Bishop was not supported by reasonable suspicion. The court did not err by granting Bishop’s motion to suppress.

Read the Full Opinion Here

Cardenas v. Cardenas, No. 13-16-00064-CV (Memorandum Opinion by Justice Rodriguez; Panel Members: Chief Justice Valdez and Justice Benavides)

In this appeal from a final divorce decree, the Thirteenth Court of Appeals analyzed the evidence supporting the trial court’s valuation and division of the couple’s property.

Rudy and Caroline Cardenas married in 2008 and filed for divorce in May 2014. During that time, the couple lived at 113 Dorothy Street, which Rudy owned prior to the marriage. In 2013, Rudy took out a loan for $30,000, and Caroline used the money to buy 115 Dorothy Street in her own name as her separate property. Caroline moved into this home in 2014 prior to petitioning for divorce.

The case was tried to the bench in 2015, and the trial court divided the estate 50/50, basing many of its valuations on Caroline’s unsworn inventory which was not admitted into evidence.

Rudy appealed, challenging the court’s findings regarding (1) the characterization of 115 Dorothy as Caroline’s separate property; (2) the characterization and division of Rudy’s IRA; (3) the amount of reimbursement awarded to Caroline for improvements to 113 Dorothy; (4) the valuation of the 2010 camper trailer awarded to Rudy; and (5) the fairness of the court’s overall division, in light of the listed miscalculations.

Held: The trial court erred in debiting $18,000 in reimbursements against Rudy’s share of the estate, and in overvaluing the trailer that it awarded to Rudy. These errors resulted in a substantial departure from the intended 50/50 split of the estate, and warranted reversal.

Characterization of 115 Dorothy

The Thirteenth Court began by reiterating that all property is presumed to be community property. However, if a conveyance contains a separate property recital, then the community presumption is negated and a different presumption arises that it the property is separate property.

The general warranty deed for 115 Dorothy identified only Caroline as a grantee, and stated that it was “her sole and separate property.” The home was thus presumed to be Caroline’s separate property. This presumption was further supported by Caroline’s testimony as well as that of the couple’s pastor, who confirmed that Rudy discussed giving the property to Caroline. Rudy however, testified that the pastor misunderstood him and that he intended to own the property jointly but to have it for Caroline in case something happened to him in the future. Rudy stated that Caroline handled the real estate purchase and that he did not realize that the deed was only in her name until she filed for divorce. The Thirteenth Court held that Rudy’s testimony was insufficient to overcome the separate property presumption arising from the recital in the deed. The trial court did not err by finding that 115 Dorothy was Caroline’s separate property.

Valuation of Rudy’s IRA

Rudy next argued that the trial court erred in its division of his IRA. Specifically, Rudy testified that $15,000 of his $42,000 IRA predated his marriage to Caroline and was separate property. However, Caroline testified that all of the IRA was earned during the marriage. The Thirteenth Court deferred to the trial court’s credibility determination, as its finding that all of the IRA was community property was supported by some evidence.

Moreover, although the trial court awarded $39,000 of the IRA to Caroline, it did so within the larger context of a just and right division. The court awarded each party 50% of the estate, giving Rudy a larger portion of tangible assets but only $3,000 of the IRA. This was not manifestly unjust.

Reimbursement for improvements to 113 Dorothy

Rudy also challenged the trial court’s finding that Caroline was entitled to $18,000 in reimbursement for expenses paid by the community estate to improve 113 Dorothy. The Thirteenth Court of Appeals reiterated that reimbursement for capital improvements to property owned by a separate estate is measured by the difference in property value before and after the improvements, not by the cost of the improvements. Caroline’s evidence however, focused almost entirely on the cost of the improvements to 113 Dorothy. Caroline made only one general statement regarding the total value of the improvements during her testimony, and the statement was supported by no facts or evidence. The trial court thus erred by reimbursing Caroline for $18,000 in expenses.

Valuation of 2010 camper trailer

Rudy also challenged the trial court’s valuation of the 2010 camper trailer. The trial court valued the trailer at $16,000 based on Caroline’s unsworn inventory, which was not admitted into evidence. Caroline testified that the couple listed the trailer on eBay for $12,000 and claimed that Rudy received interest from potential buyers but nonetheless sold the trailer to his sister for $7,000. Rudy however, stated that he took the trailer to an appraiser who said he’d be lucky to get $3,000. The Thirteenth Court thus agreed that there was no evidence supporting the $16,000 figure since Caroline’s inventory was not admitted as an exhibit.

Just and right division

Finally, Rudy argued that the miscalculations resulted in a division of property that was manifestly unjust. The Thirteenth Court noted that its reversal of the trial court’s findings regarding 113 Dorothy and the 2010 trailer resulted in at least a $22,000 deviation from Rudy’s $72,000 share of the estate. The court agreed that the difference was substantial and required the trial court to receive new evidence and modify its division.

Read the Full Opinion Here