totality of the circumstances test in Texas

2025It concluded, finally, that “it [was] wiser to abandon the ‘two-pronged test’ established by [its] decisions in Aguilar and Spinelli[,]” and “reaffirm the totality-of-the-circumstances analysis that traditionally [had] informed probable cause determinations.” Id. at 238.

2025Gates, rejected that kind of rigid special-test approach to probable cause determinations and demanded adherence to “the totality-of-the-circumstances analysis that has traditionally informed probable cause determinations.” Id.

2026We refer to the initial plea and the supplemental pleas as the pleas from Highland Village Limited Partnership and Highland Village GP LLC, and we refer to both entities as Highland Village Limited Partnership unless otherwise noted. 3 contract, (3) Appellant’s litigation conduct falls within the “safe harbor” defined in Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008), and (4) the trial court erred in applying the totality of the circumstances test.

2025On appeal, Appellant argues the trial court erred in granting Highland Village Limited Partnership’s plea in abatement2 because (1) the arbitration panel found Appellant had not waived its right to arbitration and, pursuant to the construction contract, the panel had the exclusive power to decide issues of arbitrability, (2) Appellant’s litigation conduct was expressly permitted by the non-waiver-by- litigation provisions set forth in American Arbitration Association Rules 38(c), 39(h), and 55(a), which the parties incorporated by reference into the construction contract, (3) Appellant’s litig

2012See 462 U.S. 213, 238 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983); see also Whaley v. State, 686 S.W.2d 950, 951 (Tex.Crim.App.1985) (adopting the totality-of-the-circumstances test of Illinois v. Gates).

1985In Whaley v. State, 686 S.W.2d 950 (Tex.Crim.App.1985), the court renounced the Aguilar test and adopted the totality of the circumstances test.

1998This can be shown in a variety of ways: unnamed informant had given true and correct information on several past occasions, Elliott v. State, 687 S.W.2d 359, 362 (Tex.Crim.App.1985); where an anonymous tip is relied on for a search and seizure, additional facts are required to establish probable cause under the totality of the circumstances test, Amores v. State, 816 S.W.2d 407, 416 (Tex.Crim.App.1991)(citing Rojas v. State, 797 S.W.2d 41 (Tex.Crim.App. 1990)); while information from unnamed informant alone did not establish probable cause, and information from named informant alone might not

1998This can be shown in a variety of ways: unnamed informant had given true and correct information on several past occasions, Elliott v. State, 687 S.W.2d 359, 362 (Tex.Crim.App.1985); where an anonymous tip is relied on for a search and seizure, additional facts are required to establish probable cause under the totality of the circumstances test, Amores v. State, 816 S.W.2d 407, 416 (Tex.Crim.App.1991)(citing Rojas v. State, 797 S.W.2d 41 (Tex.Crim.App.1990)); while information from unnamed informant alone did not establish probable cause, and information from named informant alone might not e

2018“The challenge of the totality-of-the- circumstances test will be its application between these two points on the continuum.” Id.

2018“The challenge of the totality-of-the- circumstances test will be its application between these two points on the continuum.” Id.

2012See, e.g., Dixon, 206 S.W.3d at 616-17, 619 (holding that confidential informant was “credible and reliable” when officer had known him more than a year and the information he provided in the past had always been shown to be true, and concluding that informant’s veracity and basis of knowledge were sufficient to establish probable cause for search of appellant’s car); Hall v. State, 795 S.W.2d 195, 197 (Tex.Crim.App.1990) (“Inherent in the totality of the circumstances test is whether the affiant’s reliable and credible informant observed conduct which was sufficiently suspect so as to be more

2005Tribble v. State, 792 S.W.2d 280, 284 (Tex.App.-Houston [1st Dist.] 1990, no pet.).

2012See, e.g., Dixon, 206 S.W.3d at 616-17, 619 (holding that confidential informant was “credible and reliable” when officer had known him more than a year and the information he provided in the past had always been shown to be true, and concluding that informant’s veracity and basis of knowledge were sufficient to establish probable cause for search of appellant’s car); Hall v. State, 795 S.W.2d 195, 197 (Tex.Crim.App.1990) (“Inherent in the totality of the circumstances test is whether the affiant’s reliable and credible informant observed conduct which was sufficiently suspect so as to be more

2011Where some of the information being considered for a determination of probable cause involves an informant’s tip, the informant’s veracity and the basis of his knowledge are “relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for ... by a strong showing as to the other....” Id. (quoting Illinois v. Gates, 462 U.S. 213, 233 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983)).

2024See Duarte, 389 S.W.3d at 358 (stating –9– that “tips from anonymous or first-time confidential informants of unknown reliability must be coupled with facts from which an inference may be drawn that the informant is credible or that his information is reliable”); see also Gates, 462 U.S. at 244-45 (“It is enough, for purposes of assessing probable cause, that corroboration through other sources of information reduced the chances of a reckless or prevaricating tale.”) (citations omitted). 2.

2023Despite the Supreme Court’s Gates directive to return to the traditional totality-of-the circumstances test, we recognize that “corroboration still matters” and a reviewing court must still determine “whether the 21 magistrate had a substantial basis for crediting the informant’s hearsay.” Duarte, 389 S.W.3d at 355 .

2013See Neal, 256 S.W.3d at 282–83; Whaley v. State, 686 S.W.2d 950, 951 (Tex. Crim.

2013See Neal v. State, 256 S.W.3d 264, 282-83 (Tex. Crim.

2018“Reviewing courts in Texas have consistently used the totality of the circumstances test for deciding whether an arrest is proper under Article 14.03(a)(1).” Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim.

2016“Reviewing courts in Texas have consistently used the totality of the circumstances test for deciding whether an arrest is proper under Article 14.03(a)(1).” Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim.

2005The standard of proof of reasonable suspicion under the totality of the circumstances test “need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274 , 122 S.Ct. at 751 .

2005The standard of proof of reasonable suspicion under the totality of the circumstances test “need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274 , 122 S.Ct. at 751 .

2024See Oursbourn, 259 S.W.3d at 172–73; Williams v. State, 502 S.W.3d 262, 272 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). “[T]he waiver must be made with a full awareness both –10– of the nature of the right being abandoned and the consequences of the decision to abandon it.” Leza, 351 S.W.3d at 349 (internal citations omitted).

2021See Williams v. State, 502 S.W.3d 262, 272 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Lott v. State, No. 02-18-00487-CR, 2019 WL 5792660 , at *7 (Tex. App.—Fort Worth Nov. 7, 2019, pet. ref’d) (mem. op., not designated for publication).

2024See Oursbourn, 259 S.W.3d at 172–73; Williams v. State, 502 S.W.3d 262, 272 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). “[T]he waiver must be made with a full awareness both –10– of the nature of the right being abandoned and the consequences of the decision to abandon it.” Leza, 351 S.W.3d at 349 (internal citations omitted).

2024The issue of involuntariness “can be, but need not be, predicated on police overreaching.” Oursbourn v. State, 259 S.W.3d 159, 172 (Tex. Crim.

2015See Wiede, 214 S.W.3d at 25 ; Whaley v. State, 686 S.W.2d 950, 951 (Tex. Crim.

2015See Wiede, 214 S.W.3d at 25-28 ; Smith v. State, 542 S.W.2d 420, 421-22 (Tex. Crim.

2015We, therefore, proceed to consider whether the procedure gave rise to a substantial likelihood of misidentification.15 We use the totality of the circumstances test to determine whether there is a substantial likelihood of 13 Id. 14 Neil v. Biggers, 409 U.S. 188, 191 (1972). 15 See Barley, 906 S.W.2d at 33 . –8– misidentification.16 Factors employed to determine reliability include: the witness’s opportunity to observe the defendant, the degree of the witness’s attention, the accuracy of the prior descriptions, the degree of certainty of the witness in regard to the identification, and the amo

2015We, therefore, proceed to consider whether the procedure gave rise to a substantial likelihood of misidentification.15 We use the totality of the circumstances test to determine whether there is a substantial likelihood of 13 Id. 14 Neil v. Biggers, 409 U.S. 188, 191 (1972). 15 See Barley, 906 S.W.2d at 33 . –8– misidentification.16 Factors employed to determine reliability include: the witness’s opportunity to observe the defendant, the degree of the witness’s attention, the accuracy of the prior descriptions, the degree of certainty of the witness in regard to the identification, and the amo

2007See Griffin v. State, 765 S.W.2d 422, 427 (Tex.Crim.App.1989) (affirming the judgment of a trial court that a juvenile appellant’s confession was voluntary under the totality of the circumstances); In Interest of R.D., 627 S.W.2d 803, 807 (Tex.App.Tyler 1982, no writ) (analyzing a juvenile appellant’s confession based on the totality of the circumstances in which the statements were made).

2005Id. at. 725, 99 S.Ct. at 2572 ; In re R.D., 627 S.W.2d 803, 806-07 (Tex.App.-Tyler 1982, no’writ).

1987See also Fare v. Michael C., 442 U.S. 707 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979) (holding that the totality of the circumstances analysis is applicable in cases involving waiver of rights by juveniles.) The totality approach mandates inquiry into all the circumstances surrounding the interrogation, including an evaluation of the juvenile’s age, experience, education, background, intelligence and his capacity to understand the warnings given him, the nature of this Fifth Amendment rights and the consequences of waiving those rights.

1987See also Fare v. Michael C., 442 U.S. 707 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979) (holding that the totality of the circumstances analysis is applicable in cases involving waiver of rights by juveniles.) The totality approach mandates inquiry into all the circumstances surrounding the interrogation, including an evaluation of the juvenile’s age, experience, education, background, intelligence and his capacity to understand the warnings given him, the nature of this Fifth Amendment rights and the consequences of waiving those rights.

2005For information from an anonymous source to satisfy the totality-of-the-circumstances test of Gates , “the informer must assert personal knowledge or there must be additional facts showing reason to believe that the contraband sought will probably be where the information indicates it will be.” Rojas v. State , 797 S.W.2d 41, 44 (Tex. Crim.

1999In Rojas v. State, 797 S.W.2d 41, 43-44 (Tex.Crim.App.1990), the Court of Criminal Appeals held “that in order to satisfy the totality of the circumstances test, when an anonymous tip is relied upon to furnish probable cause, the informer must assert personal knowledge or there must be additional facts showing reason to believe that the contraband sought will probably be where the information indicates it will be.” 6 The informant in Rojas supplied detailed information: The vehicle was described as a 1982 Lincoln, maroon over black with roses on the windows, and unicorns etched in the back gla

2012In re Fleetwood Homes of Tex., L.P., 257 S.W.3d at 693–94.

2009See In re Fleetwood Homes , 257 S.W.3d 692, 694 (Tex. 2008) (citing Perry Homes v. Cull , 258 S.W.3d 580, 590 (Tex. 2008)).

2021See, e.g., Priego v. State, 457 S.W.3d 565 , 570–71 (Tex. App.—Texarkana 2015, pet. ref’d) (holding evidence of “operating” sufficient when defendant found sleeping in vehicle in parking lot with engine running and gear selector in park position); Dornbusch, 262 S.W.3d at 437–38 (holding evidence of “operating” sufficient when defendant found sleeping in vehicle parked oddly in parking lot with engine running and lights on); Hearne v. State, 80 S.W.3d 677 , 678–80 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding evidence of “operating” sufficient when defendant found sleeping in vehicle

2011See, e.g., Dornbusch v. State, 262 S.W.3d 432, 436 (Tex. App.–Fort Worth 2008, no pet.).