totality of circumstances test in Texas

2008Furthermore, prior to the adoption of the totality of circumstances test, persons who were asleep or unconscious were found to be "operating" their motor vehicle when the vehicle was stopped in the middle of the road with the engine running, gearshift in "Drive," and operator slumped behind the steering wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.App.-Dallas 1991, no writ); stopped in the roadway with the engine running, lights on, and the vehicle's owner sitting behind the steering wheel, Pope v. State, 802 S.W.2d 418, 420 (Tex.App.-Austin 1991, no writ); stopped in

2008Furthermore, prior to the adoption of the totality of circumstances test, persons who were asleep or unconscious were found to be “operating” their motor vehicle when the vehicle was stopped in the middle of the road with the engine running, gearshift in “Drive,” and operator slumped behind the steering wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.App.-Dallas 1991, no writ); stopped in the roadway with the engine running, lights on, and the vehicle’s owner sitting behind the steering wheel, Pope v. State, 802 S.W.2d 418, 420 (TexApp.-Austin 1991, no writ); stopped in

2008Furthermore, prior to the adoption of the totality of circumstances test, persons who were asleep or unconscious were found to be "operating" their motor vehicle when the vehicle was stopped in the middle of the road with the engine running, gearshift in "Drive," and operator slumped behind the steering wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.App.-Dallas 1991, no writ); stopped in the roadway with the engine running, lights on, and the vehicle's owner sitting behind the steering wheel, Pope v. State, 802 S.W.2d 418, 420 (Tex.App.-Austin 1991, no writ); stopped in

2008Furthermore, prior to the adoption of the totality of circumstances test, persons who were asleep or unconscious were found to be “operating” their motor vehicle when the vehicle was stopped in the middle of the road with the engine running, gearshift in “Drive,” and operator slumped behind the steering wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.App.-Dallas 1991, no writ); stopped in the roadway with the engine running, lights on, and the vehicle’s owner sitting behind the steering wheel, Pope v. State, 802 S.W.2d 418, 420 (TexApp.-Austin 1991, no writ); stopped in

2008Furthermore, prior to the adoption of the totality of circumstances test, persons who were asleep or unconscious were found to be "operating" their motor vehicle when the vehicle was stopped in the middle of the road with the engine running, gearshift in "Drive," and operator slumped behind the steering wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.App.-Dallas 1991, no writ); stopped in the roadway with the engine running, lights on, and the vehicle's owner sitting behind the steering wheel, Pope v. State, 802 S.W.2d 418, 420 (Tex.App.-Austin 1991, no writ); stopped in

2008Furthermore, prior to the adoption of the totality of circumstances test, persons who were asleep or unconscious were found to be “operating” their motor vehicle when the vehicle was stopped in the middle of the road with the engine running, gearshift in “Drive,” and operator slumped behind the steering wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.App.-Dallas 1991, no writ); stopped in the roadway with the engine running, lights on, and the vehicle’s owner sitting behind the steering wheel, Pope v. State, 802 S.W.2d 418, 420 (TexApp.-Austin 1991, no writ); stopped in

2008For instance, persons asleep or unconscious were found to be "operating" their motor vehicle when the vehicle was stopped by the roadway with its right front tire against the curb and engine running, gearshift in "Drive," and lights on, Freeman v. State, 69 S.W.3d 374, 375-76 (Tex.App.-Dallas 2002, no pet.); stopped in a moving lane of traffic with the engine running and the vehicle's owner in the driver's seat, Hearne, 80 S.W.3d at 680 ; and stopped on a roadway with the engine running, lights on, and the vehicle's operator sitting behind *437 the steering wheel, State v. Savage, 905 S.W.2d 2

2008For instance, persons asleep or unconscious were found to be “operating” their motor vehicle when the vehicle was stopped by the roadway with its right front tire against the curb and engine running, gearshift in “Drive,” and lights on, Freeman v. State, 69 S.W.3d 374, 375-76 (Tex.App.Dallas 2002, no pet.); stopped in a moving lane of traffic with the engine running and the vehicle’s owner in the driver’s seat, Reame, 80 S.W.3d at 680 ; and stopped on a roadway with the engine running, lights on, and the vehicle’s operator sitting be hind the steering wheel, State v. Savage, 905 S.W.2d 272, 27

2008Furthermore, prior to the adoption of the totality of circumstances test, persons who were asleep or unconscious were found to be "operating" their motor vehicle when the vehicle was stopped in the middle of the road with the engine running, gearshift in "Drive," and operator slumped behind the steering wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.App.-Dallas 1991, no writ); stopped in the roadway with the engine running, lights on, and the vehicle's owner sitting behind the steering wheel, Pope v. State, 802 S.W.2d 418, 420 (Tex.App.-Austin 1991, no writ); stopped in

2008Furthermore, prior to the adoption of the totality of circumstances test, persons who were asleep or unconscious were found to be “operating” their motor vehicle when the vehicle was stopped in the middle of the road with the engine running, gearshift in “Drive,” and operator slumped behind the steering wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.App.-Dallas 1991, no writ); stopped in the roadway with the engine running, lights on, and the vehicle’s owner sitting behind the steering wheel, Pope v. State, 802 S.W.2d 418, 420 (TexApp.-Austin 1991, no writ); stopped in

2008For instance, persons asleep or unconscious were found to be "operating" their motor vehicle when the vehicle was stopped by the roadway with its right front tire against the curb and engine running, gearshift in "Drive," and lights on, Freeman v. State, 69 S.W.3d 374, 375-76 (Tex.App.-Dallas 2002, no pet.); stopped in a moving lane of traffic with the engine running and the vehicle's owner in the driver's seat, Hearne, 80 S.W.3d at 680 ; and stopped on a roadway with the engine running, lights on, and the vehicle's operator sitting behind *437 the steering wheel, State v. Savage, 905 S.W.2d 2

2008For instance, persons asleep or unconscious were found to be “operating” their motor vehicle when the vehicle was stopped by the roadway with its right front tire against the curb and engine running, gearshift in “Drive,” and lights on, Freeman v. State, 69 S.W.3d 374, 375-76 (Tex.App.Dallas 2002, no pet.); stopped in a moving lane of traffic with the engine running and the vehicle’s owner in the driver’s seat, Reame, 80 S.W.3d at 680 ; and stopped on a roadway with the engine running, lights on, and the vehicle’s operator sitting be hind the steering wheel, State v. Savage, 905 S.W.2d 272, 27

1998"Instead they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some indicia of reliability. ( 462 U.S. at 231-33 , 103 S.Ct. at 2329 )." See also, Whaley v. State, supra; [7] Hennessy v. State, supra. [8] In conclusion, Aguilar was not followed in Texas in order to satisfy Article I, Section 9 of the Texas Constitution or Article 18.01, V.A.C.C.P.; it was fol

1998"Instead they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some indicia of reliability. ( 462 U.S. at 231-33 , 103 S.Ct. at 2329 )." See also, Whaley v. State, supra; [7] Hennessy v. State, supra. [8] In conclusion, Aguilar was not followed in Texas in order to satisfy Article I, Section 9 of the Texas Constitution or Article 18.01, V.A.C.C.P.; it was fol

2008For instance, persons asleep or unconscious were found to be "operating" their motor vehicle when the vehicle was stopped by the roadway with its right front tire against the curb and engine running, gearshift in "Drive," and lights on, Freeman v. State, 69 S.W.3d 374, 375-76 (Tex.App.-Dallas 2002, no pet.); stopped in a moving lane of traffic with the engine running and the vehicle's owner in the driver's seat, Hearne, 80 S.W.3d at 680 ; and stopped on a roadway with the engine running, lights on, and the vehicle's operator sitting behind *437 the steering wheel, State v. Savage, 905 S.W.2d 2

2008For instance, persons asleep or unconscious were found to be “operating” their motor vehicle when the vehicle was stopped by the roadway with its right front tire against the curb and engine running, gearshift in “Drive,” and lights on, Freeman v. State, 69 S.W.3d 374, 375-76 (Tex.App.Dallas 2002, no pet.); stopped in a moving lane of traffic with the engine running and the vehicle’s owner in the driver’s seat, Reame, 80 S.W.3d at 680 ; and stopped on a roadway with the engine running, lights on, and the vehicle’s operator sitting be hind the steering wheel, State v. Savage, 905 S.W.2d 272, 27

2009See Dyar , 125 S.W.3d at 468 .

2009See Dyar, 125 S.W.3d at 468 .

2014Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim.

2012Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim.

2007For instance, person(s) asleep were found to be “operating” their motor vehicle where the vehicle was parked by the roadway with its right front tire 3 “Probable cause deals with probabilities.” Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997).

2003See Guzman , 955 S.W.2d at 87 . [5] In arguing that there was no reasonable suspicion to detain based upon an apparent hand-to-hand transaction, appellant points to the following exchange during the cross examination of Price.

1990Specifically, I dissent to the majority’s holding that the probable cause affidavit meets the totality of circumstances test under Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) or the requirements of Hennessy v. State, 660 S.W.2d 87 (Tex.Crim.App.1983).

1990Specifically, I dissent to the majority's holding that the probable cause affidavit meets the totality of circumstances test under Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) or the requirements of Hennessy v. State, 660 S.W.2d 87 (Tex.Crim.App.1983).

2025Quinones v. State, 325 S.W.3d 801, 803 (Tex. App.— Amarillo 2010, no pet.) (stating that an officer has probable cause to arrest when facts 2 and circumstances within the knowledge of the officer would authorize a reasonably prudent person to believe that the suspect committed or is committing a crime).

2023See id. at 629 (evidence that officer could smell alcohol on defendant served as some evidence of intoxication); Stroud v. State, No. 03-19-00097-CR, 2020 Tex. App. LEXIS 1457 , at *35 (Tex. App.—Austin Feb. 21, 2020, no pet.) (mem. op., not designated for publication) (defendant’s smell of alcohol and displaying clues of HGN test among factors supporting probable cause to arrest defendant for driving while intoxicated).

2015S_t:1_‘tg that in DWI investigatory detentions courts must rely on a totality of circumstances test as the reasonableness standard. 982 S.W.2d 431, 432 (Tex.Crim.App. 1998).

2014See Fulminante, 499 U.S. at 285 , 111 S.Ct. 1246 (noting “but for” test based on Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), does not state standard for determining voluntariness of confession under current law); United States v. Fernandes, No. 07-51100, 285 Fed.Appx. 119, 124 (5th Cir.2008) (per curiam, not designated for publication) (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.1988) (noting existence of a promise constitutes but one factor in the totality of circumstances analysis and does not render a confession involuntary per se)); Miller, 796 F.

2014See Fulminante, 499 U.S. at 285 , 111 S.Ct. 1246 (noting “but for” test based on Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), does not state standard for determining voluntariness of confession under current law); United States v. Fernandes, No. 07-51100, 285 Fed.Appx. 119, 124 (5th Cir.2008) (per curiam, not designated for publication) (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.1988) (noting existence of a promise constitutes but one factor in the totality of circumstances analysis and does not render a confession involuntary per se)); Miller, 796 F.

2014See Fulminante, 499 U.S. at 285 , 111 S.Ct. 1246 (noting “but for” test based on Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), does not state standard for determining voluntariness of confession under current law); United States v. Fernandes, No. 07-51100, 285 Fed.Appx. 119, 124 (5th Cir.2008) (per curiam, not designated for publication) (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.1988) (noting existence of a promise constitutes but one factor in the totality of circumstances analysis and does not render a confession involuntary per se)); Miller, 796 F.

2014See Fulminante, 499 U.S. at 285 , 111 S.Ct. 1246 (noting “but for” test based on Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), does not state standard for determining voluntariness of confession under current law); United States v. Fernandes, No. 07-51100, 285 Fed.Appx. 119, 124 (5th Cir.2008) (per curiam, not designated for publication) (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.1988) (noting existence of a promise constitutes but one factor in the totality of circumstances analysis and does not render a confession involuntary per se)); Miller, 796 F.

2014See Fulminante, 499 U.S. at 285 , 111 S.Ct. 1246 (noting “but for” test based on Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), does not state standard for determining voluntariness of confession under current law); United States v. Fernandes, No. 07-51100, 285 Fed.Appx. 119, 124 (5th Cir.2008) (per curiam, not designated for publication) (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.1988) (noting existence of a promise constitutes but one factor in the totality of circumstances analysis and does not render a confession involuntary per se)); Miller, 796 F.

2014See Fulminante, 499 U.S. at 285 , 111 S.Ct. 1246 (noting “but for” test based on Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), does not state standard for determining voluntariness of confession under current law); United States v. Fernandes, No. 07-51100, 285 Fed.Appx. 119, 124 (5th Cir.2008) (per curiam, not designated for publication) (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.1988) (noting existence of a promise constitutes but one factor in the totality of circumstances analysis and does not render a confession involuntary per se)); Miller, 796 F.

2014See Fulminante, 499 U.S. at 285 , 111 S.Ct. 1246 (noting “but for” test based on Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), does not state standard for determining voluntariness of confession under current law); United States v. Fernandes, No. 07-51100, 285 Fed.Appx. 119, 124 (5th Cir.2008) (per curiam, not designated for publication) (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.1988) (noting existence of a promise constitutes but one factor in the totality of circumstances analysis and does not render a confession involuntary per se)); Miller, 796 F.

2009See Wiede , 214 S.W.3d at 28 (holding that court of appeals erred in both respects).

2004Pipkin v. State , 114 S.W.3d 649, 654 (Tex. App. C Fort Worth 2003, no pet.); Sailo , 910 S.W.2d at 188 .

2002Camacho v. Samaniego, 954 S.W.2d 811, 825 (Tex.App.-El Paso 1997, writ, denied).