Robert Eugene Pritchett v. State

ACCEPTED
12-14-00298-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/10/2015 12:03:08 PM
CATHY LUSK
CLERK

Court of Appeals
Court Appeals
Texas
State of Texas
Supreme Judicial District
Twelfth Supreme FILED IN
12th COURT OF APPEALS
Texas
Tyler, Texas TYLER, TEXAS
_______________________________________________________________
1/10/2015 12:03:08 PM
CATHY S. LUSK
Clerk
12-14-00298-CR
12-14-00298-CR
__________________________________________________________________

Eugene Pritchett
Robert Eugene
Appellant
VS.
The State of Texas
The
Appellee
____________________________________________________________________

On Appeal from the 273
On 273'“
rd
District Court
San Augustine County, Texas
Cause No.
Trial Cause CR-13-8411
No. CR-13-8411
_________________________________________________________________________

APPELLANT’ S BRIEF
APPELLANT’S BRIEF
_______________________________________________________________________________

Respectfully Submitted,

DONOVAN PAUL
DONOVAN DUDINSKY
PAUL DUDINSKY
24038869
Texas State Bar No. 24038869
701 South Liberty Street
701
75972
San Augustine, Texas 75972
275-9871
Tel. (936) 275-9871
Fax. (936)-275-9655
dpauldudinsky@yahoo.com
E-Mail: dpauldudinsky@yahoo.com

ATTORNEY FOR
ATTORNEY FOR APPELLANT
APPELLANT
SUBMITTED FOR
SUBMITTED FOR REVIEW
REVIEW
Argument Not
(Oral Argument Not Requested)

Page 11 of 60
 OF PARTIES
IDENTITY OF
I. IDENTITY AND COUNSEL
PARTIES AND COUNSEL
The following is a complete list of all parties to the trial court’s judgement
The judgement or
names and addresses of all trial and appellant counsel:
order appealed from, and the names

Parties:
Parties: Appellant Eugene Pritchett
Defendant -- Robert Eugene

Trial Counsel: Eugene Pritchett
For Defendant, Robert Eugene
Donovan Paul Dudinsky
Donovan
Rudy Valesquez
Rudy

Appellate Counsel: Donovan Paul Dudinsky
For Appellant: Donovan
701 South Liberty Street
701
75972
San Augustine, Texas 75972

Appellee Counsel: Kevin Dutton, District Attorney
Appellee: J. Kevin
For Appellee:
Box 714
P. O. Box
75972
San Augustine, Texas 75972

Judge:
Trial Judge: Honorable Judge Charles Mitchell
273”rd Judicial District
273
75972
San Augustine, Texas 75972

Appellant’s Brief
Eugene Pritchett
Robert Eugene Page 2 of 60
 II. TABLE OF
II. TABLE CONTENTS
OF CONTENTS
I.
I. IDENTITY OF PARTIES
IDENTITY OF AND COUNSEL.................2
PARTIES AND COUNSEL ............... ..2
II. TABLE OF
TABLE CONTENTS ............................................. ..3-4
OF CONTENTS...............................................3-4
III. INDEX OF
INDEX OF AUTHORITIES..........................................5-9
AUTHORITIES ........................................ ..5-9
IV. STATEMENT OF
STATEMENT THE CASE......................................11-12
OF THE CASE .................................... ..11-12
V. ISSUES PRESENTED
ISSUES FOR REVIEW.........................13
PRESENTED FOR REVIEW ....................... 13 ..

VI. ARGUMENT AND
ARGUMENT AND AUTHORITIES............................14-55
AUTHORITIES .......................... 14-55 ..

~~
VII. STATEMENT OF
STATEMENT FACTS .........................................
OF FACTS........................................... ..

Point of Error No. 1.......................................................14
Point of Error No. 2.......................................................18-24
Point of Error No. 3.......................................................32-34
Point of Error No. 4.......................................................36-38
Point of Error No. 5.......................................................44-47

VIII. SUMMARY OF
SUMMARY ARGUMENTS ................................
OF ARGUMENTS.................................. ..

Point of Error No. 1.......................................................14-15
Point of Error No. 2.......................................................25
Point of Error No. 3.......................................................34
Point of Error No. 4.......................................................38-39
5 ..................................................... ..47-48
Point of Error No. 5.......................................................47-48

IX. ARGUMENTS ............................................................
ARGUMENTS.............................................................. ..

........
.. 15-18
Point of Error No. 1.......................................................15-18
........ ..25-31
Point of Error No. 2.......................................................25-31
........ ..34-36
Point of Error No. 3.......................................................34-36
~

4 ..................................................... ..39-44
Point of Error No. 4.......................................................39-44
5 ..................................................... ..48-55
Point of Error No. 5.......................................................48-55

X. CONCLUSION ........................................................... ..56-57
CONCLUSION.............................................................56-57

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene Page 3 of 60
XI. PRAYER .................................................................... .58
PRAYER......................................................................58
.

XII. OF SERVICE.....................................58
CERTIFICATE OF
CERTIFICATE SERVICE ................................... ..58

XIII. CERTIFICATE OF
CERTIFICATE COMPLIANCE .......................... ..58
OF COMPLIANCE............................58
XIV.
XIV. APPENDIX ................................................................. ..60
APPENDIX...................................................................60

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene Page 4 of 60
 OF AUTHORITIES
INDEX OF
III. INDEX AUTHORITIES
FEDERAL CASES:
FEDERAL CASES:

Giglio v. United States,
v. United States, 405 405 U.S.US. 150,150, 154,
154, 92 S.Ct S. Ct 763,
763,
766, 31 L.Ed2d
766, L.Ed2d 104 (1972)(I972)
154 ..................................................................................... ..I5, 26,
Giglio at 154.......................................................................................15, 28
26, 28

United States v.
United v. Agurs, 427 U.S.
Agurs, 427 US. 97, I12, 96
97, 112, 96 S. Ct.2329,
S.Ct.2329,
2401, 49 L.Ed2d
2401, (I976) ............................................................. ..I5, 16,
L.Ed2d 342 (1976)...............................................................15, 16, 17

Weatherford v.
Weatherford v. Bursey,
Bursey, 429 US. 545,
429 U.S. 545, 97 97 S.Ct 83 7,
S. Ct 837,
51 L.Ed2d 30 (1977)...........................................................................16
L.Ed2d 30 (197fl ......................................................................... ..16

v. MaQland,373
Brady v. US. 83,
Maryland,373 U.S. 83, 83 S.Ct. 1194,
S. Ct. 1194,
10L.Ed2a'215 (1963) ....................................................................... ..I6
10 L.Ed2d 215 (1963).........................................................................16

United States v.
United v. Bagley,473 US. 667,
Bagley,473 U.S. 667,
I05 S.Ct.3375,
105 87L.Ed2a’481(I985)
S.Ct.3375, 87 L.Ed2d 481 (1985)................................................16, 17,30
.............................................. ..16, 17, 30

Kyles v. Whitley 514
v. Whitley, US. 419,
514 U.S. S.Ct.1555,
419, 115 S.Ct.1555,
I31L.Ed2d 490
131L.Ed2d 490 (1995)........................................................................17,
(1995) ...................................................................... ..1 7, 18, 26
I8, 26

Higgs, 713 F.2d
Higgs, 713 42 ....................................................................... ..26
F.2d at 42.........................................................................26

Alcortav v. Texas, 355 U.S.
v. Texas, US. 28, 28, 31,
31, 78 78 S.
S. Ct. 103, 105,
Ct. 103, I05,
2L.Ed2d 9 (1957)................................................................................28
2L.Ed2d (1957) .............................................................................. ..28

United States v.
United Gengler, 574,
v. Gengler, 574, F. 2d. 730,
F. 2d. 730, 735735
(3d Cir. 1978) .................................................................................. ..28
Cir. 1978).....................................................................................28

South Dakota
Dakota v. Ogggerman, 428
v. Oppperman, US. 364,
428 U.S. 364, 96 96SS Ct. 3092,
Ct. 3092,
49L.E.2dI000
49 (I976) ...................................................................... ..40,41,
L.E.2d 1000 (1976)........................................................................40, 51
41, 51

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene Page 5 of 60
Cady v.
Cady v. Dombrowslgy, US. 433,
413, U.S.
Dombrowsky, 413, 433, 93 S.Ct. 2523,
S. Ct. 2523,
37L.Ed.2d
37 706 (1973)..........................................................................41
L.Ed.2d 706 (1973) ........................................................................ ..41

V. New
Coolidge v. New Hamgshire, US. 433,
Hampshire, 403 U.S. 433, 461,
461,
91 S.Ct.
S.Ct. 2022,2035, 29 L.Ed.2d 564
2022,2035, 29 564 (1971)........................................41
(1971) ...................................... ..41

Brendlin v. California, 551
v. California, US. 249,
551 U.S. 249, 127I27S.Ct. 2400,
S.Ct. 2400,
132 (2007).......................................................................49
168 L.Ed.2d 132 (2007) ..................................................................... ..49

v. Hodari
California v. Hodari, 499 US. 621,111,
499 U.S. 621,111, S.Ct S. Ct 1547,
1547,
113 L.Ed.2d 690 (1991).......................................................................49
(1991) ..................................................................... ..49

New York v.
New York v. Belton US. 454,
452, U.S.
Belton, 452, 2860,
454, 101 S.Ct 2860,
69 L.Ed. (1981) ........................................................................... ..50
L.Ed. 728 (1981).............................................................................50

Arizona v. Gant, 556
v. Gant, 556 U.S.
US. 332,332, 129 S.Ct. 1710,
S.Ct. 1710,
Ld.2d 47 A.L.R.
485, 47
Ld.2d 485, Fea'.2a’
A.L.R. Fed.2d 657 657 (2009)
Gant at 1723........................................................................................50
Gant I 723 ...................................................................................... ..50

STATE CASES:
STATE CASES:

Thomas v.
Thomas v. State, 841 S.W. 2.d
State, 841 SW
2d 399,
399, 404 404 (Texas Crim. Crim. App.App. 1992)
841, S.W2dat
ana'84I,
and S.W.2d at 403........................................................................26, 30
403 ...................................................................... ..26, 30

Garza v. v. State, 137 S.
State 137 W301 878,
S. W.3d (Tex./lpp.-Houston
878, 882 (Tex.App.-Houston
st
[1‘”
[1 Dist.
Dist.]] 2004, pet. Ref
2004, pet. Ref’d)..................................................................40
’d) ................................................................ ..40

Collins v. S. W.2d 890
State 630 S.W.2d
v. State, 890 (Tex.App. I982 pet.
(Tex.App. 1982 ref’d) ............ ..41, 54
pet. ref’d)..............41,

Sandal v.
v. State,
State, 253 S. W261 283 (Tex.Cr.App.1952)..........................41,
253 S.W.2d (Tex. Cr.App.1952) ........................ ..4I, 54

Broughton
Broughton v.
v. State,
State, 643 S. W.2d 147
S. W.2d 147 (Tex.App. 1982 no.
(Tex.App. 1982 pet.)..........41,
no. pet.) ........ ..4I, 54

Gauldin v. State 649 S.
v. State, W.2d 411 (Tex.Cr.App.
S. W.2d 1984) .................... ..42, 54
(Tex.Cr.App. 1984)......................42,

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene Page 6 of 60
Pearson v.
v. State,
State, 649 S. W.2d 786
S. W.2d 786
(Tex.Cr.App. 1983, pet.
(Tex. Cr./lpp. 1983, ref’d) ........................................................... ..42, 54
pet. ref’d).............................................................42,

Evers v. S.W.2d 46
State 576 S.W.2d
v. State, 46 (Tex.Cr.App. 1978)...........................42,
1978) ......................... ..42, 52,
52, 54,
54, 55

Benevides v. 600 S.
State 600
v. State, S. W.2d 809 (Tex.Cr.App.
W.2a’ 809 (Tex. Cr.App. 1980)..................42,
I980) ................ ..42, 52,
52, 54

Christian v. 592 S.
State 592
v. State, W.2d 359
S. W.2d 359 (Tex.Cr.App.
(Tex. Cr.App. 1980)...................42,
I980) ................. ..42, 52

Daniels v. S. W.2d 809
State 600 S.W.2d
12. State, 809 (Tex.Cr.App.
(Tex. Cr.App. 1980).......................42
I980) ..................... ..42

Eugene Redmond
Jonathan Eugene Redmond v. 05-09-01461-CR)
v. State, (No. 05-09-01461-CR)

2011) .................................................................. ..43
(Tex.App. -— Dallas 2011)....................................................................43

Maybergg
Mayberry v. 830 S.
State 830
v. State, W.2d 176,
S. W.2d 176, 180I80
(Tex.App. - Dallas 1992,
1992, pet.
(Tex.App. — ref ’d) ................................................. ..43
pet. ref’d)...................................................43

Tex.R.APP.Ann 81(b)(2). Pamp.
Tex.R.APP.Ann Pamp. 1989..............................................44
1989 ............................................ ..44

Gauldin v. State 683 S.
v. State, W.2d at 415.................................................44
S. W.2d 415 ............................................... ..44

Fenton v.
v. State, 785 S.
State, 785 W.2a’ 443 (Tex.App.-
S. W.2d (Tex.App.— Austin 1990)...............44,
1990) ............. ..44, 52

Russell v. 7I7S.
State 717
v. State, W261 7,
S. W.2d 7, 9, I986) .................... ..49
9, (Tex.Cr.App 1986)......................49

Telshow v.
V. State, 964 S.
State 964 W.2a’ 303,
S. W.2d 307
303, 307
(Tex.App.- Houston [I4"’
th
Houston [14 Dist.] 1998[998 no pet.)
pet.)..................................49
................................ ..49

White v.
White 871 S.
State 871
V. State, W.2d 833,
S. W.2d 836-37
833, 836-37
(Tex.App. - Houston
th
(Tex.App. - [14"’ Dist.] 1994,
Houston [14 1994, no pet.)
pet.)...............................49
............................. ..49

Higlzwarden
Highwarden v. v. State,
State, 864 S. W.2d 479,
864 S.W.2d 479, 481 && n.
n.
(Tex.App. -- Houston [I4’h Dist.] 1993) dism ’s as
th
(Tex.App. Houston [14 I993) pet.
pet. dism’s
irnprovidently granted,
improvidently granted, 871 W.2d 726 (Tex.Cr.App.
871 S. W.2d (Tex.Cr.App. 1994).........49
1994) ....... ..49

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene Page 7 of 60
Nottingham v.
v. State, 908 S.
State, 908 W.2d 585
S. W.2d
1995) ....................................................................... ..49
(Tex.App.- Austin 1995).........................................................................49

Medford
Medford v.
v. State,
State, 13 S. W.2d 769
S. W.2d 769 (Tex.Cr.App. 2000) ........................ ..49
(Tex. Cr.App. 2000)..........................49

Granados v.
Granados v. State S. W.3d 217
State, 85 S.W.3d 217 (Tex.Cr.App. 2002) ...................... ..50
(TeX.Cr.App. 2002)........................50

Gill v. State 625 S.
v. State, W.2d 307,
S. W.2d 319 (Tex.Cr.App.
307, 319 (Tex. Cr.App. 1980)........................51
1980) ...................... ..5I

Delgado
Delgado v.
v. State, 718 S.
State, 718 W.2d 718,
S. W.2d 721 (Tex.Cr.App.
718, 721 1986) .............. ..5I
(Tex.Cr.App. 1986)................51

Backer
Backer v. 656 S.
State 656
v. State, W.2d 463 (Tex.Cr.App.
S. W.2d (Tex. Cr.App. 1983)...........................52
1983) ......................... ..52

Mayhood
Mayhood v.
v. State, 699 S.
State, 699 W.2d 873,
S. W.2d 874
873, 874
(Tex.App. 1984 pet.
(Tex.App. 1984 pet. Ref’d)
Ref’d)......................................................................54
.................................................................... ..54

State v.
V. Giles, 867 S.
Giles 867 W.2d 105,
S. W.2d I08
105, 108
(Tex.App. - El Paso,
(Tex.App. - Paso, pet, ref’d) ............................................................. ..55
pet, ref’d)...............................................................55

Statutes

1 4”’ Amendment United States Constitution...............................13, 26
th
14 of the United
Amendment of Constitution ............................. ..13, 26

44"’Amendmentofthe
th
UnitedStates
Amendment of the United Constitution ............................... ..13, 36,
States Constitution.................................13, 39,40, 41
36, 39,40,

Texas Transportation Code Code 544.010 Subparagraph
Subparagraph ((c) c)
............................................................................13,
.......................................................................... ..13, 19,
19, 20, 25,26, 32,33,
20, 25,26, 32,33, 34,
34, 35

9 ....................... ..13, 19,
Texas Constitution Article 1 Section 9.........................13, 19, 25,
25, 36,
36, 39,
39, 48,
48, 55,56

Code of
Code Criminal Procedure Article 39.14..........................................17
ofCriminal 39.14 ........................................ ..17

Code of
Code Criminal Procedure Article 2.01...........................................17
ofCriminal 2.01 ......................................... ..17

ofEvidence
Texas Rules of 803 (6).........................................................18
Evidence 803 (6) ....................................................... ..18

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene Page 8 of 60
 0fEvidence
Texas Rules of Evidence 902 (10).........................................................18
(1 0) ....................................................... ..I8

Texas Rules of Civil Procedure
0fCivil 21a ................................................... ..18
Procedure 21a.....................................................18

Leg. H
Leg. H. Stat.
Stat. 1995 74'”
74 th
Leg.
Leg. Sess.
Sess. Chapter 165, 165,
effective September 1, I995 ................................................................ ..20, 35
I 1995..................................................................20,
,

Code of
Texas Code Criminal Procedure 38.23 ((a)
0fCriminaZ a )...................................38,
................................. ..38, 39,
39, 48

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene Page 9 of 60
 Case No. 12-13-00298
Case CR
12-13-00298 CR

THE
IN THE
IN
COURT OF
COURT OF APPEALS
APPEALS
TWELFTH SUPREME
TWELFTH SUPREME JUDICIAL
JUDICIAL DISTRICT
DISTRICT
TEXAS
TYLER, TEXAS
TYLER,

******************************************************************
******************************************************************

ROBERT EUGENE
ROBERT EUGENE PRITCHETT
PRITCHETT
Appellant

V.

THE STATE
THE OF TEXAS
STATE OF TEXAS
Appellee

******************************************************************
******************************************************************

On Appeal
On From the 273
Appeal From 273"‘
rd
Judicial District

~.w:s:~.w.-*9:9:4:9:*9:9:9:9:9:*9:*:':9:*9:9:*9:9:*9:9::':9:9::':9:9:
************************************

TO THE
TO HONORABLE JUDGES
THE HONORABLE JUDGES OF
OF SAID COURT:
SAID COURT:

Comes now Robert Eugene
Comes now Eugene Pritchett, Defendant in a proceeding in the 273
273'“
rd

of San Augustine County, Texas and desiring to prosecute an
Judicial District Court of

appeal from his conviction in that proceeding, respectfully submits this brief in appeal

of Eugene Pritchett will be by
of same. For clarity, reference in this brief to Robert Eugene by

“Appellant” and reference to the State of Texas will be by
“Appellant” “Appellee” unless the
by “Appellee”

context or consideration of style dictate otherwise.

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
10 of
Page 10
 STATEMENT OF
IV. STATEMENT THE CASE
OF THE CASE
On the 44”‘th day of August , 2014
On , 2014 a Motion To Suppress (Evidence Obtained
Motion To

From Illegal Detention and Illegal Impoundment
From Impoundment and Inventory) was
was filed
filed with the

Court by
by Appellant’s attorney. See Appendix “A”.
Appendix “A”.

On the 44‘“th day of August, 2014, before presiding judge Hon. Charles Mitchell
On

273“rd District Court of San Augustine County, Texas, San Augustine,
presiding in the 273

commenced on the
was selected and sworn and empaneled and a trial commenced
Texas, a jury was

of the felony prosecutor’
merits of Eugene Pritchett,
prosecutor’ss case against the Defendant, Robert Eugene

who and being accused of committing two
who two felony offenses of
of and pertaining to

Zone and Tampering
Possession of a Controlled Substance in a School Zone Tampering with

Evidence.
Evidence.

On the 55”‘th day of August, 2014, the case went
On went to jury deliberation and the jury

which and finding
eventually returned verdicts in which finding Defendant guilty of
of Possession

of finding Defendant Not
of a Controlled Substance and finding Tampering with
of Tampering
Not Guilty of

Evidence.
Evidence.

On September 10,
On 10, 2014, the Defendant and counsel appeared at the punishment
punishment

phase of the trial and the court assessed punishment consisting of Defendant being

five years and Defendant ordered
community supervision for a period of five
placed on community

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
11 of
Page 11
to pay amount of
pay a fine in the amount of $3,000.00 and Defendant ordered to pay
pay a restitution

amount of $140.00.
amount “B” “Judgement
Appendix “B”
$140.00. See Appendix “Judgement of By Court”.
of Conviction By

of the punishment hearing counsel for Defendant
Immediately after the conclusion of

filed the Trial Court’s Certification of Defendant’s Right of Appeal.
filed Appendix
Appeal. See Appendix

“C”.
“C”.

On October 7, 2014, counsel for Defendant filed Defendant’s Written Notice
On

of Appeal.
of Appeal. See Appendix “D”. This case is proper before this Honorable Court.
Appendix “D”.

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
12 of
Page 12
 PRESENTED FOR
ISSUES PRESENTED
V. ISSUES REVIEW
FOR REVIEW
POINT OF
POINT ERROR 1.
OF ERROR
The State has a constitutional duty
The under the due
dutv under due process clause or the
Amendment to disclose any
Fourteenth Amendment anv material evidence that is favorable
to defense.

POINT OF
POINT ERROR 2.
OF ERROR
was denied due
Appellant was due process of law when the State agents, The
law when The City
Citv
Department destroyed and
San Augustine, Texas, Police Department
of San and or failed to
Exculpatorv evidence of a video/
preserve Material Exculpatory Video/ audio recording of the
Impoundment and
Alleged Traffic Violation, Detention, Impoundment and Inventory
Inventorv search
form the basis of the conviction.
of the Appellant that form

POINT OF
POINT ERROR 3.
OF ERROR
The trial court abused
The abused its discretion sustaining prosecution’s
prosecution’s objection
obiection to
motion to read
defense motion read into the record the relevant section of the
Code for the jury’s
Transportation Code understanding as it applies to motorist
iurv’s understanding
stopping at intersections.

POINT OF
POINT ERROR 4.
OF ERROR
were violated under
Appellant’s Constitutional Rights were under the Fourth
Fourth
Amendment of the United States Constitution and
Amendment and Article I,
1, Section 9 of
when the reasonable alternatives that were
Texas Constitution when
the Texas were
impoundment were
available to impoundment were not implemented.
implemented.

POINT OF
POINT ERROR 5.
OF ERROR
The inventory
The was an
inventorv search of Appellant’s vehicle was an illegal unconstitutional
Violation of Article 1, Section 9 of the
investigative search for evidence in violation
Texas Constitution.
Texas

Appel1ant’s Brief
Appellant’s
Robefi Eugene
Robert Eugene Pritchett of 60
13 of
Page 13
 ARGUMENT AND
VI. ARGUMENT AND AUTHORITIES
AUTHORITIES
POINT OF
POINT ERROR NO.
OF ERROR NO. 1

The State has a constitutional duty under
The under the due
due process clause or the
Amendment to disclose any
Fourteenth Amendment any material evidence that is favorable to
defense.

STATEMENT OF
VII. STATEMENT OF FACTS
FACTS
The foregoing statements of
The of facts are incorporated herein by
by references for all

purposes. subpoena.
purposes. Facts regarding non-response to defense counsel’s subpoena.

On July 8, 2014, defense counsel submitted a subpoena to the San Augustine
On

copy of the established written
specifically requesting an authentic copy
Police Department specifically

impoundment procedure and production
policy governing the department’s rules of impoundment

of film of
of authentic copies of the audio/visual film of the officer’s
off1cer’s pursuit prior to and during

(RR: Vol. 3, P. 75)
Appellant’s detention. (RR:

SUMMARY OF
VIII. SUMMARY ARGUMENT
OF ARGUMENT
Under established Texas law, the failure to turn over material, exculpatory
Under

evidence is a violation of due process, regardless of whether the State acted in bad

who arrested Appellant, testified that he thought the
officer who
faith. In this case, the officer

police department had an established policy governing impoundment; but he was
was

him in court. The
copy with him
unsure because he did not have a copy The officer
officer further testified

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
14 of
Page 14
 was activated and recording
to having a video camera in his patrol unit that was

Appellant’s vehicle as the officer
officer pursued/followed the Appellant. The officer
The officer

testified that he stopped Appellant for not stopping at a designated point at a stop sign

officer testified
at an intersection, and the officer testified that Appellant had also improperly stopped

in the middle of the intersection.
intersection. Appellant argued in defense of officer’s reason for

the stop based upon
upon the traffic code, and Appellant argued in defense of the video the

was lost pursuant to a computer crash. The
officer maintained existed but was The video

was material, exculpatory evidence
of the following/pursuit of Appellant was
recording of

was a violation of Appellant’s due process rights.
and the failure to preserve it was

ARGUMENT
IX. ARGUMENT

Exculpatory evidence includes material that goes to the heart of the defendant’s

which might well alter the jury’s
guilt or innocense as well as that, which jury’s judgement of the
judgement of

credibility of a crucial prosecution witness. Giglio v. United States,
v. United 150,
States, 405 U.S. 150,

L.Ed2d 104
31 L.Ed2d
154, 92 S.Ct 763, 766, 31
154, 104 (1972). Evidence impeaching the testimony

when the credibility of the witness may
of a government witness is exculpatory when
of may be

determinative of criminal defendant’s guilt or innocence. Qglg at 154.
innocence. Giglio 154. If
If the

doubt” as to the defendant’s culpability,
exculpatory evidence “creates a reasonable doubt”

United States v.
it will be held to be material. United v. Agurs, 427 U.S. 97, 112,
Agurs, 427 112, 96 S.Ct.2329,

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
15 of
Page 15
2401, 49 L.Ed.2d 342 (1976).

San
In this case, defense counsel submitted a subpoena to the custodian of San

thirty-five days before the trial held on
Augustine Police Department on July 8, 2014, thirty-five

At trial, Officer
August 4, 2014. At Officer Brazeal testified was in charge of
testified that he was of

which included handling subpoenas received at the department.
administrative duties which department.

The officer admitted that he received a subpoena requesting the department’s
The

impoundment policy and other production. The
impoundment was told
The officer further stated that he was

by the district attorney’s office not to release information. (RR:
by (RR: Vol. 3, P. 75, 76, 77,

1-25, 1-8).
L. 8-25, 1-25, The district attorney’s rebuttal closing alluded to the code of
1-8). The of

was not in
criminal procedure regulating discovery claiming defense’s subpoena was

no consequence.
conformance therewith and therefore, seemingly, of no consequence. (RR: Vol. 3,

109,110,
P. 109, 11-25,1-13).
110, L. 11-25, 1-13).

Weathertord v.
There is no general right to discovery in criminal cases. Weatherford v.

429 U.S. 545, 97 S.Ct 837, 51
Bursey, 429
l3u_11ve_y, L.Ed2d 30 (1977). However, the State has a
51 L.Ed2d

Due Process Clause of the United States Constitution
constitutional duty under the Due

any material evidence that is favorable to the defense for
to disclose to defendant any

trial or a sentencing hearing. Brady v. Magyland
Brady v. 10
Maryland, 373 U.S.83, 83 S.Ct .1194, 10

United States v.
L.Ed.2d 215 (1963); United v. Agurs, 427 U.S. 97, 96 S.Ct.2329, 49 L.Ed.2d
Agurs, 427

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
16 of
Page 16
 v. Bagley
342 (1976); United States v. 105 S.Ct.3375, 87 L.Ed.2d
Bagley, 473 U.S. 667, 105

48l(l985); Kyles v.
481(1985); 115 S.Ct. 1555,
Whitley 514 U.S. 419, 115
v. Whitley, 1555, 131 490 (1995).
131 L.Ed.2d 490

makes
This standard of materiality applies regardless of whether the defense makes

specific request for certain material, a general request for discoverable material, or
a specific

no request for disclosure of favorable evidence. Although the Court’s opinion in

was a plurality opinion, a majority adopted this approach in Kyles.
Bagley was Kyles.

Knowledge of
Knowledge of materially favorable evidence in law enforcement files known to law
files or known

officers is imputed to the prosecutor.
enforcement officers prosecutor. Therefore, a constitutional

when the prosecutor is unaware
violation can occur when unaware of evidence in law enforcement

files. Id.
files. Id.

The prosecutor insisted at trial that because defense didn’t follow or adhere to
The

Code of Criminal Procedure Article 39.14
discovery pursuant Code specific article
39. 14 (through specific

was not entitled to release nor receipt of information
not referenced in court), defense was

requested. (RR: Vol.
requested. P. 109, 110,
3, P.109, ll-15,1-13).
110, L. 11-15, 1-13).

The Code of
The Code of Criminal Procedure Article 2.01
2.01 refers to the duties of the district

attorney.

of all prosecuting attorneys, including any
“....[I]t shall be the primary duty of

special prosecutors, not to convict, but to see that justice
justice is done. They shall not

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
17 of
Page 17
 of the
suppress facts or secrete witnesses capable of establishing the innocence of

accused.”

Defense’s subpoena included request for certain business records of the police

impound policy was
department and request for information particularly pertaining to impound was

Tex.R.Evid. 803(6) without a
requested and intended to be introduced at trial under Tex.R.Evid.

sponsoring trial witness through the use of an affidavit as provided for in the

would have been given to prosecution
Tex.R.Evid.902( 1 0), and notice of introduction would
Tex.R.Evid.902(10),

pursuant to Rule 21a Tex.R.Civ.Pro. At least 14
Tex.R.Civ.Pro. At commencement of
14 days prior to the commencement

“Knowledge of materially favorable evidence in law enforcement files
the trial. “Knowledge files or

known to law enforcement officers is imputed to the prosecutor.” Kyles,
known Kyles, Supra.

Defense counsel’s subpoena sought to legally discover business records

may have been pertinent and material to defense; and admit such
information that may

evidence under the Texas Rules of Evidence pursuant to the Texas Rules of Civil

The decision to deny defense’s subpoena in behalf of
Procedure in a criminal trial. The

was a violation of Appellant’s
the accused was Appe11ant’s due process rights.

POINT OF
POINT ERROR NO.
OF ERROR NO. 2

was denied due
Appellant was due process of law when the State through
law when San
through its agents, San
Department destroyed and
Augustine Police Department
Augustine and or failed to preserve Material
Exculpatorv evidence of a video/ audio recording of the Alleged Traffic
Exculpatory Traffic
Impoundment and
Violation, Detention, Impoundment and Inventory search of the Appellant that

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
18 of
Page 18
form the basis of the conviction.
form

STATEMENT OF
VII. STATEMENT OF FACTS
FACTS
The night of
The November 24
of Thanksgiving November th
24”‘, , 2011, around 8:52 pm,
pm, in the City

of San Augustine, Texas.
of Texas. Office Sowell testified that his digital video, recorded the

following of the Appellant’s vehicle through a residential neighborhood for over a

half a mile. Officer Sowell alleged the Appellant stopped improperly at the
half

of Hospital Street and North
intersection of Milam Street, that lead to the detention and
North Milam

arrest of the Appellant for failure to display driver licence and subsequent

impoundment and inventory search of Appellant’s vehicle.
impoundment

made an objection on the admissibility of the evidence.
Appellant’s Attorney made

The roadside detention was
The Code 544.010,
was in violation of the Transportation Code 544010,

Subparagraph (( c );
); and it
it violated Article 1, of the Texas Constitution.
1, Section 9 of

The Court: The
Therefore, the evidence the State is trying to offer is inadmissible. The The

was overruled. (RR: Vol. 2, Page 32, Lines 4-13).
objection was

The Appellant argues that the arresting Officer had no probable cause or
The

reasonable suspicion to stop the Appellant. Appellant argues he stopped properly at

The Appellant stopped properly
the intersection of the alleged traffic violation. The

Code 544.010 -- Stop
The Texas Transportation Code, relevant section of Code
according to The

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
19 of
Page 19
 An operator required to stop by
Signs and Yield Signs -- Subparagraph (( c )) An by this

section shall stop before entering a crosswalk on the near side of the intersection.
intersection. In

marked line. In the
of a crosswalk, the operator shall stop at a clearly marked
the absence of

of a stop line, the operator shall stop at the place nearest the intersecting
absence of

roadway where the operator has a view
roadway where on the intersecting
View of approaching traffic on

roadway.” Leg. H. Stat. 1995 74”‘
1995 74 th
Leg. Sess. Ch. 165,
165, effective September 1, 1995.
1, 1995.

Officer Sowell’s testimony, Officer
In Officer Officer declined to answer important questions

Officer Sowell’s reference to the
vital to the defense, without referring the video. Officer

on cross examination, without the video,
video and his inability to answer questions on

shows the video contained exculpatory evidence which
shows was vital to the defense,
which was

which violated Appellant’s due process and a right to a fair trial.
which

The foregoing statement of fact are based on
The on trial court testimony of the San
San

Officers.
Augustine Police Department, Police Officers.

The State’s Attorney in direct examination of Officer
The Officer Jonathon Sowell.
Sowell.

Do you
Q. Do
Q. remember what
you remember was wearing that night?
what Mr. Pritchett was

would have to review video. It’s been nearly three years and -- -—
A. No, Sir. I would

Q. All right.

RR: Vol. 2 p.44, L. 17-22
States Attorney: II pass the witness. (( RR: 17-22 ).
).

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 20 of
 Appel1ant’s Attorney begins cross examination of
Appellant’s Officer Sowell.
of Officer Sowell. (RR: Vol.

2, P. 45).

Q. Okay. Now,
Q. him on the hunch, did you
you were following him
Now, while you you have a video

going‘?
going?

was going.
Video was
A. Yes, sir, video

you have a video
Q. So you we could see regarding your following him?
Video that we him?
O.>@.>

A. No, sir,
sir, I
I do not.

You didn’t have a video of the following?
Q. So I guess the answer is: You

Our computer hard drive crashed at the police department and lost
was going. Our
A. It was

(RR: Vol. 2, P. 73, L. 6-17)
Video. (RR:
the video.

Appendix No.
Officer Sowell looking at defense Exhibits 3, 4 and 5. Appendix “E”.
No. “E”.

would be a line, and that is your designated stop point, the white line.
A. -- -- There would

I’m my video
I’m unsure without my Video if was actually present at that night.( RR:
if that line was RR: Vol.

22-24).
2 p.75, L. 22-24 ).

show you.
was a video I could show
A. -- -- II wish there was

we don’t have a video,
Q. But we we?
Video, do we?

And I’m
A. And I’m sorry about that. But
But -- -- ((RR:
RR: Vol. 2 p.77, L. 3-10 ).
).

Q. At
Q. when he said he didn’t have his driver’s license -- --
At the time when

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
21 of
Page 21
 l’m not sure about the time frame on
A. I’m would have to have the video or it
on that. II would it

would my report. But
would have to be stated in my RR: Vol. 2 p.80, L. 11-15
But -- -- (( RR: 11-15 ).
).

we can’t show
Q. But we
Q. members of the jury where
show members where you
you claim he stopped, can you?

A. Not Video, no, sir. ((RR:
Not without the video, 13-15 ).
RR: Vol. 2 p.82, L. 13-15 ).

At that point in time, you
Q. At him if you
you ask him you can search his vehicle. It’s not in your

report.
report. l’m asking you
I’m you -- --

Then II can’t -- -- without a video
A. Then l’m not going to testify to that question. Because
Video I’m

l’m unsure, sir. Like you
I’m RR: Vol. 2 p.84,
you said, that’s been nearly three years ago. (( RR:

15-20 ).
L. 15-20 ).

The audio portion contained in the video, you
The you could have heard Officer Sowell

asking Appellant to search his vehicle.

where you
Q. But being the general vicinity where
Q. you pulled the vehicle
Vehicle over?

A. Yes, sir -- --

Q. -- -- it was on
it was on video -- --

where he was
you exactly where
A. If I had a video, II could point you RR: Vol. 2
was stopped. (( RR:

1-5).
p.90, L. 25 and p. 91, L. 1-5 ).

I’m unsure. It was
A. I’m was stopped. But l’m unsure that it was
But I’m was on
on a curve or in the road.

would not know.
Without video II would RR: Vol. 2 p.91, L. 16-18
know. (( RR: 16-18 )) . .

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 22 of
 The video would
The show that the Appellant’s car was
would clearly show was properly parked

would also
The video would
along this portion of Hospital Street, the place of detention. The

show that this portion of Hospital Street is straight.
clearly show

States Attorney redirects examination of Officer Sowell.

comment about the video crashed the video not being available?
Been a lot of comment
Q. Been

A. Yes. Sir.

The video not being available, being destroyed, being lost, being cyberspace,
Q. The

being wherever it away from
it goes then they crash, that does not take anything away from the

what you
truth or veracity of what you put in your report?

A. No, Sir.

IIhave
have no further questions. `( RR: Vol. 2 p.l
‘( RR: p.112,
12, L. 25- p. 113, 1-8 ))..
ll3, L. 1-8

Appellant’s Attorney begins re-cross examination of Officer Sowell.

where it
Q. There is no video of where it is alleged he parked wrongfully in an intersection.

True or not true?
true‘?

(RR: Vol. 2, P. 114,
A. True, there is no video. (RR: 114, L. 7-9)

The State called Officer James Blackwell as there next witness.
The

ofOff1cer
Appellant’s Attorney begins cross examination of Officer Blackwell on the

video issues.

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 23 of
 We have here is so-called crime scene, and it’s not normal to take
what we
Q. Okay. So what

pictures?

would be a video from the patrol car recording the entire
A. Well, there generally would

scene, documenting everything real time. (RR: Vol. 3, P. 43, L. 9-13)

Do you have any idea whether Officer Sowell logged the videotape on
Q. Okay. Do on his

patrol car into evidence?

A. No, sir, I was
sir, because I was on an antique system. II was VHS, so II had to
was using VHS,

manually take the tape out and submit it was digital, and I have no
it as evidence. His was

what he did with it.
idea what 1-3)
it. (RR: Vol. 3, P. 53, L. 23-25, P. 54, L. 1-3)

The State’s Attorney then calls his next Witness, Sargent Shannon
The Shannon Brazeal.

no question concerning the destroyed video.
had no
States Attorney had

Appellant’s Attorney begins cross examination of Sargent Braziel.

Back in 2011
Q. Okay. Back 2011 did y’all use videotape or digital?

We had a mixture of both. We
A. We We had one vehicle that ran -- -- still had the old system
VHS tape. Everything else was
had VHS
that had was saved digitally to a card.

Do you
Q. Okay. Do know What
you know Officer Sowell’s video?
what happened to Officer

We had a computer crash, unrecoverable.
A. We We tried to recover what
unrecoverable. We we could not
what we

(RR: Vol. 3, P. 74, L. 13-22)
get that back that far. (RR: 13-22)

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 24 of
 SUMMARY OF
VIII. SUMMARY ARGUMENT
OF ARGUMENT
Under the U.S. Constitution, a criminal defendant will have a meaningful
Under

Consequentially, the destruction or failure
opportunity to present a complete defense. Consequentially,

of due process regardless of whether
to preserve exculpatory evidence is a violation of

or not it
it is done in bad The State never developed or proved that the San
bad faith. The

Augustine Police Department even has a written Standard Policy to preserve a video.

The totality of
The of the circumstances in this case establish bad faith on behalf of the San

which
Augustine Police Department to either destroy or fail to preserve the video, which

The Video/Audio recording of the
self-defense. The
could establish Appellant’s right to self-defense.

traffic stop, Detention and the Inventory Search contained exculpatory
Alleged traffic

evidence and the failure to preserve it was done in bad
it was bad faith, violating Appellant’s

due process right.

ARGUMENT
IX. ARGUMENT

made an objection on the admissibility of
Appellant’s Attorney made of the evidence:

The roadside detention was
The Code
was in violation of the Texas Transportation Code

544.010, Subparagraph (( c );
); and it
it violated Article 1, of the Texas
1, Section 9 of

Constitution. Therefore, that evidence trying to offer is inadmissible.
Constitution. (RR Vol. 2, P.
inadmissible. (RR

32, L. 5-8)

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 25 of
Court: Objection overruled.

The Appellant argues that he stopped properly at the intersection of the alleged
The

The Appellant stopped properly according to Section 544.010
violation. The
traffic violation.

of the Texas Transportation Code.
subparagraph (( c )) of

of the defendant’s
Exculpatory evidence includes material that goes to the heart of

which might well alter the jury’s judgement
guilt or innocence as well as that, which judgement of the

of a crucial protection witness. Giglio v.
credibility of 150, 154,
v. United States, 405 U.S. 150, 154,

104 (1972) Higgs, 713 F.2d at 42.
31 L.Ed.2d 104
92 S.Ct. 763,766, 31

Amendment is violated when
Due Process Clause of the Fourteenth Amendment
The Due
The when a

which creates a
prosecutor fails to disclose evidence that is favorable to the accused which

sufficient to undermine confidence in the
probability sufficient outcome of the proceedings.
outcome proceedings.

Thomas V.
See, e.g., Thomas SW2d 399, 404
841 S.W.2d
V. State, 841 404 (Tex. Crim. App. 1992).
1992).

The member of
The duty to disclose extends to evidence in the possession of any member of

team”. See , e.g. Kyles V.
the “prosecution team”. ,
V. Whitley, 115 S. Ct.
Whitley, 514 U. S. 419, 437, 115

1555, 1567,
1555, 1567, 131 2d 490
131 L. Ed. 2d 490 (1995). (“the individual prosecutor has a duty to learn

known to the others acting on
of any favorable evidence known
of on the government’s behalf in

the case, including the police”).
police”).

The Appellant’s Attorney received a letter via fax Dated July 31, 2014, four
The

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 26 of
 The letter stated, In preparing the above cases for
of the trial. The
days before the start of

this trial it has come my attention that there was
come to my made on
was a video made on the night of
of the

My office has never received this video and in following up with the police
stop. My

was stored on a computer at the police
department have found out that the video was

no longer available.
department and the computer crashed and the video is no

about the video.
Trial testimony about

On August
On August 4, 2014, during trial, the arresting Officer
Officer Sowell testified on

prosecution direct examination. No, sir. I would Then on
would have to review video. Then on

cross examination it was developed that the arresting Officer Sowell had a video
it was

recording of the incident, starting from the following of Appellant’s vehicle thru the

impound and inventory search. Then, seven more
traffic violation, detection, impound
alleged traffic more

examination, the arresting Officer’s answers were, “I
questions on cross examination, am unsure
“I am

my video. II wish there was
without my would have to have the video. Not
was a video. II would Not

Then I can’t without a video. If
with out the video, No, sir. Then If I had a video, I could.

With out a video II would
With know.”
would not know.”

know what
During cross examination of Office Blackwell stated, he did not know what

He also stated on cross examination,
Officer Sowell did with the video. He examination, Well, there

would be a video from the Patrol unit car recording the entire scene,
generally would

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 27 of
documenting everything.

The who is employed by
The Appellant who San Augustine,
by a defense Attorney in San

“Bad Faith”. The
argues that the State and San Augustine Police Department acted in “Bad The

downloaded
prosecutor stated digital’s don’t get logged into evidence. It just gets downloaded

mainframe. Prosecutor stated, But, you
onto the mainframe. you know, things happen. Computers
happen. Computers

crash. II tried a case where the whole dadgum case file
whole dadgum was lost by
file was by the police

department. (RR: Vol. 3, P. 111,
department. 111, L. 5-13)

knows that computers crash and case files
Appellant argues, if the state knows files have

been lost by
by the Police Department and video is documenting everything real time.

Failure to preserve the video violated Appellant’s due process and right to a fair trial.

~
A prosecutor has a duty not knowingly to proffer perjured testimony and to
A

may become
which he may
correct any perjury of which become aware during trial. See e.g.,
eg., Alcortav

v. Texas 355 U. S. 28, 31, 78 S. Ct. 103,
v. Texas, 103,105, 2L.Ed2d 9 (1957).
105, 2L.Ed2d

Evidence impeaching the testimony of a government witness is exculpatory

when maybe determinative of
when the credibility of the witness maybe of a criminal defendant’s

guilt or innocence. Giglio, U.S at 154,
Qiglg, 405 U.S United States v.
154, 92 S.Ct. at 766; United v. Gengler,

574 F. 2d.730,735 (3d Cir.1978).
574 Cir.l978).

In prosecutor direct examination of Officer Blackwell the prosecutor handed

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 28 of
 own police report. The
of his own
copy of
Officer Blackwell a copy Some of
The prosecutor states, Some

my highlighting; but other than that it’s a good
the pink, that’s my good copy. (RR:
(RR: Vol. 3, P.

10,
10, L. 1-2). At that time II think you
1-2). Q. At you testified
testified that y’all began searching the vehicle

first as an inventory search; is that correct?

of that, I just
A. Actually, before any of just stood there in the open door of the vehicle and

noticed the white streaks on the door panel.

Q: In Plain view?
Q:

A. Right, in plain view.

show’s that he knowingly and willfully, with
Officer Blackwell’s police report show’s
Officer

deceitful malicious intent, along with the prosecution mislead the jury
jury on the

by Officer Blackwell’s testimony, he states he found the
sequence and the order, by

view doctrine.
alleged evidence in the car door pocket, to justify the plain view

Report
Officer Blackwell’s Report

Officer Sowell placed Pritchett in custody on the charge “Fail to present Driver

him in the rear seat of his patrol vehicle. Officer Blackwell’s
and placed him
License” and

report states, II looked into the open door of the vehicle and inside the door pocket,

amount of
I observed a small amount of white substance. II touched the small fragments and

know this to be consistent with crack
was firm and waxy. I know
noted the substance was

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 29 of
 my vehicle, and tested the fragments of the
field test kit from my
cocaine. I1 retrieved a field

substance in the door pocket. The substance tested positive for cocaine.
pocket. The cocaine. I advised

was going to be charged with
Officer Sowell, and II advised Pritchett that he was
Officer

of
of a controlled substance in a drug free zone. II collected the remaining of
Possession of

the fragments of cocaine from the door pocket with officer Sowell watching, and

them in an evidence bag, and immediate handed
placed them handed the bag to Officer
Officer Sowell.

was a number
There was And II tested several
number of fragments in the area of the door pocket. And

smears on the door panel which
small white smears which gave positive indication of the presence

of cocaine.
of was attempting to destroy the rock of crack
cocaine. It appeared that Pritchett was

cocaine to prevent it by officers.
it from being discovered by officers. II advised Pritchett of his

Miranda me that he wished to speak to an attorney.
Miranda warnings, and he told me attorney.

The Appellant argues that the video/audio contains “Favorable evidence”
The

includes both ““ exculpatory ““ and “impeachment
“impeachment evidence”. United States V.
V. Bagley,

105 S. Ct. At
473 U.S. at 676, 105 Thomas v.
At 3380; Thomas 2d at 403. Officer
841 S.W. 2d
v. State, 841

Sowell’s wilfulness, on eight questions on cross examination, declined to answer the

questions without seeing his video. Officer Blackwell’s testimony was
was in direct

own police report.
conflict with his own
conflict

Moreover, the testimony from the arresting Officer Sowell and the back-up

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 30 of
Officer Blackwell was own report’s of the
officers own
was inconsistent with the police officers

would have been impeached by
which would
alleged events which was
by the video. Appellant was

by the absence of the video.
significantly prejudiced by
significantly

The itself was
The San Augustine Police Department itself of maintaining and
was in charge of

preserving the video and it was their failure to do so that denied Appellant a complete
it was

on the totality of the circumstances outlined in the above portion, the
defense. Based on

was done in
failure of the San Augustine Police Department to preserve this video was

bad was a violation of Appellant’s
bad faith and therefore, was Appel1ant’s due process right.

shown that the state through its agent the San Augustine Police
Appellant has shown

Department, did act in bad
bad faith and had a reason or motive not to preserve the

exculpatory evidence in the video of the incident that would show the police officers
would show officers

what actually took place during the following, alleged
misconduct and the truth of what

As Officer Blackwell testified
traffic violation and the detention of the Appellant. As

“documenting everything real time”.
about the video, “documenting shown
time”. Further, Appellant has shown

would have been very useful in
that the video contained exculpatory evidence that would

the Appellant’s right to self-defense, to the jury.
jury.

was denied his due process right to adequately present a defense
Appellant was

was constitutionally harmed.
and was

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
31 of
Page 31
POINT OF
POINT ERROR 3.
OF ERROR
The trial court abused
The abused its discretion sustaining prosecution’s objection
obiection to
motion to read into the record the relevant section of the Transportation
defense motion
Code for the jury’s
Code understanding as it applies to motorists stopping at
iurv’s understanding
intersections.

STATEMENT OF
VII. STATEMENT OF FACTS
FACTS
The foregoing statements of the facts are incorporated herein by
The by references for

all purposes. Code 544.010 (( c )) evidence:
purposes. Facts regarding Transportation Code evidence:

A trial to a jury commenced
A commenced on August
August 4, 2014, during the course of
of defense

who conducted Appellant’s
of the police officer who
counsel’s cross examination of

detention, defense counsel for the Appellant motioned the court to allow defense

“Texas Criminal and Traffic
counsel to read into the record from the “Texas Law Manual”
Traffic Law Manual”

Code 544.010 (( c )) for purpose to advocate therefrom during cross
Transportation Code

would have fairly informed the jury and the court the controlling law
examination that would

of the transportation code as it
of who stopped
it applies to motorist and the police officer who

“One moment, Your
Dudinsky: “One
the Appellant. Mr. Dudinsky: Your Honor, II would
would like to read into

the record the transportation code, if may, if the prosecutor has no objection.
if II may, objection. Mr.

“I’m going to object to you
Dutton: “I’m
Dutton: what you
you reading what The
you believe to be the law. The

judge can instruct the jury
jury what The Court: “Let
What the law is. The me see ----
“Let me you
---- are you

proposing to read?” Mr. Dudinsky: ““ This here, Section 544.010 sub-paragraph c

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 32 of
 And II think the jury
governs a motorists stopping at stop signs and yield signs. And would
jury would

we have to follow.” Mr. Dutton: “Your
what the procedure is that we
be entitled to hear what “Your

The Court: “Sustained” Mr. Dutton:
Honor, I1 object to the side-bar there.” The “Thank
Dutton: “Thank

“The Court’s charge is going to contain all the instructions that the
The Court: “The
you”. The

jury is going to hear. When we
When we have a charge conference, we up” Mr.
we will take this up”
I’m not allowed to read this to the jury?” The
So I’m
Dudinsky: “All right. So
Dudinsky: “No.
The Court: “No.

The Court’s charge is going to contain all the instructions as far as the law is
The

“Okay.” (RR: Vol. 2, P. 77-78).
Dudinsky: “Okay.”
concerned.” Mr. Dudinsky:

summary closing arguments, a charge conference not transcribed
Following summary

The presiding judge agreed to include in the
initiated concerning the court’s charge. The

you have a reasonable doubt that the Defendant, Robert
“if you
court’s charge, Court: “if

Eugene Pritchett, failed to properly stop at the Intersection of Hospital Street and
Eugene

Milam Streets, or if you
Milam Eugene Pritchett, properly
you believe the Defendant, Robert Eugene

stopped at said intersection, then any evidence obtained from the search of Defendant

him.”
Eugene Pritchett’s vehicle shall be disregarded as evidence against him.”
Robert Eugene

(RR: Vol. 3, P. 84, L. 20-25, P. 85 L. 1).
(RR: 1).

The court’s charge did not include the wording of paragraph (( c )) of
The of

Code 544.010 on
Transportation Code on the letter of the law governing lawful motorist

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 33 of
stopping procedure at stop signs located at intersections.

SUMMARY OF
VIII. SUMMARY ARGUMENT
OF ARGUMENT
must be accounted that if
It must Verbatim context of
if the jury had been provided the verbatim

officer’s reason for
paragraph (( c )) to review for consideration and deliberation on the officer’s

jury would
stopping Appellant; the jury would have been informed concerning the letter of the

off1cer’s reason for stopping
law as it applies to the circumstances, particularly the officer’s

The jury would
Appellant. The would have concluded that the officer’s
officer’s basis for stopping

was unlawful.
Appellant and conducting a roadside detention was

ARGUMENT
IX. ARGUMENT

Code 544.010 (( c )) is the
Under established Texas law, Transportation Code
Under

when approaching an intersection with a
must obey when
controlling law that motorists must

stop sign or a yield sign.

Code 544.010.
Transportation Code 544010. Stop Signs and Yield Signs. “(a) Unless directed

by a police officer or traffic-controlled
to proceed by traffic-controlled signal, the operator of a vehicle
Vehicle or

streetcar approaching an intersection with a stop sign shall stop as provided by
by

subsection (( c ).
). (
( c ) An operator required to stop by
) An by this section shall stop before

of the intersection. In the absence of
entering the crosswalk or the near side of of a

marked stop line. In the absence of a
crosswalk, the operator shall stop at a clearly marked

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 34 of
 where
stop line, the operator must stop at the place nearest the intersecting roadway where

View of
the operator has a view on the intersecting roadway.
of approaching traffic on Leg.H.
roadway. Leg.H.

Stats. 1995 74‘“
1995 74 th
165, effective September 1,
leg. Sess. Ch. 165, 1995" Section (( c )) is the
1, 1995"

of this case.
relevant section of the code that applies to the facts of

The officer testified that Appellant was
The was stopped for failure to stop at a

The officer agreed that a stop line is the designated
designated point at a stop sign. The

point to stop. The officer
The officer testified that a video that was shown
was lost could have shown

shown where
appellant could have shown The lost video is material
where Appellant stopped. The

The citation for failure to stop at a designated point at a stop sign is
evidence. The

The intersection did not have a cross walk
material evidence not lost. The walk nor a stop line

being the essential elements addressed in section (( c )) of the code that require and

must comply
mandate under such circumstances the stopping procedure a motorist must

with and follow.

As itit were, the jury had
As had no video but the jury had
had available a code of law the

jury
jury could have assessed and applied to the controlling facts and circumstances of the

of the intersection.
configuration of
physical configuration The jury only had discursive uncertain
intersection. The

officer from which
testimony of the officer make its assessment.
which to make The court erred in its
assessment. The

discretion to disallow the jury of
jury hearing and assessing the written relevant portion of

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 35 of
 which to wholly judge the facts as they pertain to an
by which
section (( c )) of the code by

off1cer’s reason for detention; facts that were and are inextricable and precisely
officer’s

by a code of law.
controlled by

POINT OF
POINT ERROR 4.
OF ERROR
were violated under
Appellant’s Constitutional Rights were under the Fourth
Fourth
Amendment of the United States Constitution and
Amendment and Article I,
1, Section 9 of the
when the reasonable alternatives that were
Texas Constitution when
Texas were available to
impoundment were
impoundment were not implemented.
implemented.

STATEMENT OF
VII. STATEMENT OF FACTS
FACTS
The foregoing statements of the facts are incorporated herein by
The by references for

was stopped at a residential street located in the town
all purposes. Appellant was town of San

November 24, 2011. Appellant was
Augustine, Texas in the evening of November was initially

stopped for improperly stopping “failure to stop at a designated stop sign”.

on his
Appellant’s detention revealed that Appellant did not have his driver’s license on

person. was arrested without warrant for failure to display driver’s
person. Appellant was driver’ s license.

The officer
The 2014 that he arrested Appellant without a
August 4, 2014
officer testified at trial on August

(RR Vol. 2, P. 85, L. 24-25).
warrant. (RR
warrant.

was impounded. Necessity
Following Appellant’s arrest, Appellant’s vehicle was

impoundment were discussed during defense
of and available alternatives to impoundment
of

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 36 of
counsel’s cross examination of the arresting officer.
officer.

You impounded
Q. Okay. You impounded the vehicle?

A. Yes, sir. (RR: Vol. 2, P. 87, L. 2-3)

Now does the San Augustine Police Department have a standardized
Yes? Okay. Now
Q. Yes?

impounding procedures?
policy governing impounding

we do.
A. Yes, sir, II believe we

Did you
Q. Did you bring it
it with you?

A. No, sir, I do not have it
it with me.

Q. So, your telling the jury
Q. jury that there is one?

A. There should be, yes, sir.

You say there should be? (RR:
Q. You (RR: Vol. 2, P. 87, L. 1-2, 17-25).
1-2, 17-25).

I’m not sure. II don’t have the policy manual
A. I’m manual in front of
ofus.
us. (RR: Vol. 2, P. 88, L.

1)
1)

Q. Now, you that you
Now, There were alternatives available to you you could have avoided

impoundment, were there not?

A. Are you when you
you referring to when you approached the scene?

(RR: Vol 2, P. 95, P. 1-5)
(RR: Vol 1-5)

was at the location; you
Q. II was
Q. you recall?

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 37 of
A. Yes, sir.

The care was
Q. The was not turned over to me, and you knew I was
you knew was the owner?
owner?

A. Yes, sir.

impound the vehicle and you
you go ahead and impound
Q. So you you conduct an inventory search?

A. Yes, sir. (RR: Vol.
Vol.2,
2, P. 95, L. 5-12).

SUMMARY OF
VIII. SUMMARY ARGUMENT
OF ARGUMENT
The Appellant’s
The made an objection that The
Appe11ant’s Attorney, made The impound
impound was
was improper.

impound and improper search, then it
Being an improper impound it falls under 38.23 (a) of
of the

Code of Criminal Procedure and must
Texas Code must be excluded.

owner of the
The evidence in the trial record shows the availability of the owner
The

vehicle being at the scene of the arrest to whom the officer
whom officer could have given

of the vehicle.
possession of

The evidence in the record shows the vehicle was
The was legally parked at the curb of

The evidence in the record
a residential street two blocks from Appellant’s home. The

was not abandoned
shows the car was
shows flow of traffic or was
abandoned nor impeding the flow was a danger to

public safety. The evidence also shows
The was not mechanically
shows that the vehicle was

The evidence in the record shows
immobilized. The
defective or immobilized. was no
shows that there was

was used in the commission
connection between the arrest or that the vehicle was commission of
of a

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 38 of
 The record shows
crime. The shows the police officer impound Appellant’s vehicle
officer chose to impound

based upon “C” misdemeanor
upon a class “C” misdemeanor offense of failure to display driver’s license.

was no evidence in the record showing that the area in which
There was which Appellant’s

vehicle was parked was
was was especially vulnerable to crime against motor vehicles. The
The

shows that Appellant did not consent to nor ask the police
evidence in the record shows

impound and tow
officer to impound tow the Appellant’s vehicle. In light of the undeniable

of the vehicle, location of
alternatives available, condition of of the vehicle, the police

impound and act in bad
officer chose to impound bad faith and disregard and violate the

Amendment of the Constitution
constitutional rights proclaimed for all in the Fourth Amendment

of the United States and the given rights of all protected in Article 1,
of of the
1, Section 9 of

Texas Constitution.

ARGUMENT
IX. ARGUMENT

The made an objection that The
The Appellant’s Attorney, made The impound
impound was
was improper.

impound and improper search, then it
Being an improper impound it falls under 38.23 (a) of the

Code of
Texas Code of Criminal Procedure and must be excluded.
excluded.

The impoundment established at trial was
The available alternatives to impoundment was evidence

showing that the arresting police officer had no credible necessity existing to justify

impoundment of Appellant’s motor vehicle.
a lawful impoundment

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 39 of
 The State bears the burden of
The of proving that an impound may
impound in lawful, and may

was arrested, (2) no
by demonstrating that (1) the driver was
satisfy this burden by no

impoundment were available to ensure the vehicle’s
alternatives other than impoundment

impounding agency had an inventory policy, and (4) the policy was
protection, (3) the impounding was

Garza v.
followed. Garza 137 S.W.3d
State 137
v. State, App-Houston [1
S.W.3d 878, 882 (Tex. App-Houston [l“st
Dist.] 2004,

pet. Ref’d).
pet. The owner
The owner of the vehicle was The State did not prove that the
was on site. The

impound or inventory policy and if
San Augustine police department had an impound if the

policy’s were followed.

The Court squarely confronted issues of vehicle inventory searches and
The

impounded in South Dakota
impounded Dakota v. Oggerman, 428 U.S. 364, 96 S Ct. 3092, 49 L.Ed.2d
v. Opperman,

1000 (1976).
1000 “The necessary predicate for any such search, however, is that the
(1976). “The

automobile be lawfully impounded, that is to say, taken lawfully into official
official

At 3100, 3100-01; the automobile has been
Id., at 375, 376, 96 S.Ct. At
custody.” Id.,

subject to less stringent warrant requirements for searches and seizures than other

Amendment. The
“effects” protected under the Fourth Amendment. The reasons for this are two fold.

of an automobile creates circumstances of such exigency
First, the inherent mobility of

of the warrant requested is
that as a matter of practical necessity strict enforcement of

impossible. Second, there is a lesser expectation of privacy with respect to an
impossible.

Appellant’s Brief
Eugene Pritchett
Robert Eugene 40 of
Page 40 of 60
automobile. South Dakota
Dakota v. Opperman, supra.
v. Opperman,

of the
However, automobiles are considered “effects” and within the scope of

Amendment, See: Cady
Fourth Amendment, Cody v.
V. Dombrowski, 93 S.Ct. 2523, 37
Dombrowski, 413 U.S. 433, 93

v. New
L.Ed.2d 706 (1973); see also: Coolidge v. New Hampshire 91 S
Hampshire, 403 U.S. 443, 461, 91

CT. 2022, 2035, 29 L.Ed.2d 564
CT. “The word
564 (1971); “The word “automobile”
“automobile” is not a talisman

in whose Amendment fades away
whose presence the Forth Amendment away and disappears.” Id.
Id. In order for

impoundment of
an impoundment must be
of the automobile must
of an automobile to be lawful the seizure of

Amendment.
reasonable under the Fourth Amendment.

may arise from: (1) an unattended vehicle
impoundment may
Reasonable cause for impoundment

that is illegally parked or otherwise an impediment to traffic, Collins v.
v. State 630 S.

W.2d 890 (Tex. App. 1982-
W.2d 1982- pet. ref’d).
ref‘d). Evidence at trial established that Appellant’s

flow of traffic on a
was not unattended or illegally parked or impeding the flow
vehicle was

(RR Vol. 2, P. 93). (2) an unattended vehicle that the driver cannot
residential road. (RR

remove Scmdel v.
remove because he is injured or physically or mentally incapacitated, Sandel State
v. State,

S.W2d 283 ((Tex.
253 S.W2d Tex. Cr. App. 052); Broughton v. 2d 147
State 643 S.W. 2d
v. State, 147 (Tex. App.

1982 .no pet).
1982 was no evidence that the Appellant was
pet). There was was unable to remove
remove his

was physically or mentally
of his being injured or that he was
vehicle because of

incapacitated. (3) a vehicle that has been stolen or used in the commission of another

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
41 of
Page 41
crime. Gauldin v.
v. State, S.W.2d 411
State 649 S.W.2d 411 (Tex. Cr. App. 1984);
1984); Pearson v. State 649
v. State,649

SW2d 786
S.W.2d 786 (Tex. Cr. App. 1983,
1983, pet. ref’d),
ref‘ d), Evidence at trial established that

was not stolen or connected with nor used in the commission of
Appellant’s vehicle was

(RR Vol. 2, P. 99). (4) a vehicle the becomes
another crime. (RR becomes unattended because the

removed form the vehicle, placed under arrest, and his property cannot be
driver is removed

by any
protected by means other than impoundment.
means impoundment. Evers v. S.W.2d 46
State 576 S.W.2d
v. State,

1978)
(Tex. Cr. App. 1978)

owner was
Evidence at trial established that the owner was at the scene at the time of

appellant’s arrest and the owner was available to safeguard owner’s
owner was owner’s vehicle. Yet, the

who knew
officer who
arresting officer knew the owner
owner was knew the owner
was an attorney, knew was the owner
owner was owner

knew that the owner’s
of the vehicle, and knew
of was in compliance with insurance
owner’s vehicle was

would not allow the owner
and registration requirements however, would owner possession of
of the

vehicle. (RR Vol. 2, P.
(RR F. 95-95)

An automobile may
An may be impounded
impounded if removed from his automobile
if the driver is removed

no other alternatives are available other than
and place under custodial arrest and no

impoundment to insure the protection of the vehicle. Bevavides v.
impoundment S.W.2d
State 600 S.W.2d
v. State,

1980); Christian v.
809 (Tex. Cr. App. 1980); v. State, S.W.2d 359 (Tex. Cr. App. 1980);
State 592 S.W.2d 1980);

Daniels v. S.W.2d 809 (Tex. Cr. App. 1980).
State 600 S.W.2d
v. State, 1980).

Appellant’s Brief
Eugene Pritchett
Robert Eugene 42 of
Page 42 of 60
 We note that police officers need not independently investigate possible
We

impoundment absent objectively demonstrable evidence that
alternatives to impoundment

Eugene Redmond
alternatives do in face, exist. Jonathan Eugene Redmond v.
v. State, 05-09-01461 -
State, (No. 05-09-01461-

CR) (Tex. App.-
CR) App.- Dallas 2011); see also Maybergy
Mayberry v.
v. State, W.2d 176,
State, 830 S. W.2d 180
176, 180

1992, pet ref’d).
(Tex. App. -- Dallas 1992, ref‘d).

When impoundment
When impoundment follows custodial arrest, appellant courts have considered

impoundment. (1) the
of the impoundment.
several factors in determining the reasonableness of

someone at the scene of
of someone
availability of whom the police could have given
of the arrest to whom

of the vehicle, (2) whether the vehicle was
possession of flow of traffic or
was impeding the flow

was was locked, (4) whether the
was a danger to public safety, (3) whether the vehicle was

would likely be of such duration to require the police to take
detention of the arrestee would

some reasonable connection between the
was some
protective measures, (5) whether there was

was used in the commission of a
arrest and the vehicle, and (6) whether the vehicle was

At 179-80.
Id. At
crime. Id. was established in court showing
l79-80. Objective evidence was showing there

impoundment that did in fact exist and were available.
were reasonable alternatives to impoundment

The arresting officer
The community care-taking justification for
officer did not assert any community

of the officer’s
the impoundment, and in light of no such justification
off1cer’s testimony at trial no justification

made no showing that Appellant’s
The prosecution nor the testifying officer made
existed. The

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 43 of
car was way or crosswalk, or was
was connected with a crime, blocked a drive way was abandoned,

stolen, and immobilized, or posed a hazard or impediment to other traffic. It is also

was legally parked in a residential area two
significant that Appellant’s car was
significant two blocks

significant, the officer testified the registered
from Appellant’s residence. Also significant,

was available at the scene. The
owner of the vehicle was
owner The officer testified
testified that he

impounded made the arrest. (RR:
impounded the car after he made (RR: Vol. 2, P. 94, L. 21)

The evidence for review affirmatively shows
The shows there were reasonable and lawful

impoundment. Respectfully, it
alternatives available to avoid impoundment. it cannot be concluded

~
that the error was upon the jury.
was harmless beyond a reasonable doubt in its effect upon jury.

Tex.R.APP.P.Ann 81(b)(2).(Pamp.1989)
Tex.R.APP.P.Ann 8 l (b)(2).(Pamp. l 989) Gauldin v. State 683
v. State, S.W.2d at 415;
683 S.W.2d 4 l 5; Fenton

v. State 785 S.W.2d
v. State, App.- Austin 1990)
S.W.2d 443 (Tex. App.- 1990)

POINT OF
POINT ERROR 5.
OF ERROR
The inventory search of Appellant’s vehicle was
The was an
an illegal unconstitutional

Texas
investigative search for evidence in violation of Article 1, Section 9 of the Texas

Constitution.

STATEMENT OF
VII. STATEMENT OF FACTS
FACTS
The forgoing statements of the facts are incorporated herein by
The by references for

all purposes.
purposes.

Appellant’s Brief
Eugene Pritchett
Robert Eugene 44 of
Page 44 of 60
 was followed for over a half
Appellant was was
hunch because Appellant was
half mile on a hunch

on a road where
officer while driving on
by a police officer
observed by known drug
where allegedly a known

was located. (RR:
place was (RR: Vol. 2, P. 48)

was stopped on a residential street located in the town
Appellant was town of San

Augustine, Texas in the evening of November was initially
201 1. Appellant was
November 24 2011.

stopped for “failure to stop at a designated point at a stop sign” located 45 feet from

the nearest place to the intersecting roadway. (RR: Vol. 2, P. 73-79)

Appellant’s detention revealed that Appellant did not have his drivers license

was arrested without warrant for failure to display drivers
on his person. Appellant was
on

The police testified at trial on August 4, 2014
license. The 2014 that he arrested Appellant

(RR: Vol. 2, P. 85, L. 24-25)
without a warrant. (RR:

impounded and
was impounded
Following Appellant’s arrest, the Appellant’s vehicle was

The record shows
inventoried. The shows that there were reasonable alternatives available to

impoundment and inventory. (RR: Vol. 2, P. 85-88, 91-95)
impoundment

was conducted resulting in a
impoundment, an inventory search was
Following impoundment,

of less than 0.01
trace net weight of gram of cocaine found at night
of a gram
0.01 hundredths of

view by
allegedly in plain view by a second police officer who was
officer who was not conducting the

was searching for evidence.
inventory search but was

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 45 of
 officer about inventory list.
Counsel questioned the arresting officer

The car was
Q. The was not turned over to me, and you knew I was
you knew was the owner?
owner?

A. Yes, sir.

impound the vehicle, and you
you go ahead and impound
Q. So you you conduct an inventory search?

A. Yes, sir.

Q. Did
Q. Does that
Did -- -- now, the standard criteria for inventory is an inventory list. Does

make sense?
make

of value in the vehicle.
A. Yes, sir, anything of
.

And you
Q. And you took an inventory list?

A. Yes.

You did?
Q. You

A. There should be one, yes, sir. II don’t see it
it with this report.

(RR” Vol. 2, P. 95, L. 10-25)
Q. II beg your pardon? (RR” 10-25)
?>O?>@.>O?>O?>@>

don’t see one with this -- -- report.
A. I don’t

You listed the valuables that you
Q. You you inventoried?

you with this report.
A. II -- -- I should have, but II can’t tell you

we don’t have itit right?
Q. But we

Your correct on that. (( RR:
A. Right. II understand. Your RR: Vol. 2, P.96,
R96, L. 1-5)
1-5)

Appellant’s Brief
Eugene Pritchett
Robert Eugene 46 of
Page 46 of 60
 And I’m
Q. And l’m suggesting to you was
you conducted an inventory, an inventory that was
you that you

mse to make
a ruse make a search without a warrant of You were searching
of a motorist vehicle. You

for criminal evidence, and you knew you
you knew you did not have the probable cause, didn’t you,

otherwise?

A. I didn’t have probable cause for an evidentiary search, no.

when officer Blackwell came
was conducting an inventory search when
A. No, sir. II was came up.

officer Blackwell was
Q. Okay. So then officer making a search on his own, wasn’t he? If
was making

must have been searching -- --
wasn’t part of the inventory search, he must
he wasn’t

know what
don’t know
A. II don’t You would
what officer Blackwell does. You would have to ask him. (RR:
(RR: Vol.

2 P. 96-97)

SUMMARY OF
VIII. SUMMARY ARGUMENT
OF ARGUMENT
The evidence in the record shows
The owner of
shows that the owner was available
of the vehicle was

The arresting officer testified that he
at the scene to take possession of the vehicle. The

impounded the vehicle, and conducted an
arrested Appellant without a warrant, impounded

The arresting officer testified that a second officer was
inventory of the vehicle. The was not

of the inventory search but
part of was searching for evidence allegedly discovered at
was

The alleged plain view
night in plain view. The view evidence consisted of a trace-net weight

gram of
0.01 hundredths of a gram
less than 0.01 of cocaine.

Appellant’s Brief
Eugene Pritchett
Robert Eugene 47 of
Page 47 of 60
 The arresting officer
The impound which
officer chose to impound which allowed opportunity to conduct

a specious inventory search for investigative purpose that otherwise the arresting

officer lacking the probable cause required under the automobile exception to the

on the totality
warrant requirement did not have nor could not have established based on

of the circumstances of the arresting officer’s
of off1cer’s initial reason for following Appellant,

misdemeanor offence, and the circumstances of
aRR:est for misdemeanor of the scene of detention,

of which, provided the arresting officer with legal probable cause to search
none of

Appellant’s vehicle.

The inventory search of Appellant’s vehicle was
The was an unconstitutional

was conducted in violation of
investigative search that was of Article 1, of the
1, Section 9 of

Texas Constitution.

ARGUMENT
IX. ARGUMENT

made an objection that The
The Appellant’s Attorney, made
The The impound
impound was
was improper.

impound and improper search, then it
Being an improper impound it falls under 38.23 (a) of the

Code of
Texas Code of Criminal Procedure and must be excluded.
excluded.

To rebut the presumption of proper police conduct, a defendant must show
To show the

was conducted without a warrant and once the defendant rebuts the
search was

presumption the burden shifts to the State to either produce evidence of
of a warrant or

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 48 of
prove the reasonableness of
of the search.

Russell v. SW2d (TeX.Cr.App. 1986);
State 717 S.W.2d 7, 9 (Tex.Cr.App.
v. State, 1986); Telshow v. 964
State 964
v. State,

2d 303, 307 (Tex.App.
S.W. 2d Houston [14
(Tex.App. -- Houston
th
[l4”‘ Dist] 1998,
Dist.] no pet.); White
1998, no White v. 871
State 871
v. State,

S.W.2d 833, 836-37 (Tex.App.-Houston [14
S.W.2d th
[14“‘ Highwarden
1994, no pet.) See Highwarden
Dist.] 1994,

v. S.W.2d 479,481
V. State, 846 S.W.2d & n. 2 (Tex. App.-Houston
479,481 & App.-Houston [14 th
[l4‘“ 1993), pet.
Dist.] 1993),

dism’d as improvidently granted, 871
dism’d S.W.2d 726 (Tex.Crim. App.
871 S.W.2d App. 1994). The
1994). The

officer testified
arresting officer testified that he arrested Appellant without a warrant and did not

have probable cause to search Appellant’s vehicle (RR: Vol. 2, P. 85)

A unanimous
A unanimous ruling stated that a vehicle stop is a seizure of not only the

vehicle but of its occupants. Brendlin v.California, 551 U. S. 249, 127
v.Cali[0rnia, 551 127 S.Ct. 2400,

A person is seized for constitutional purposes, when
132 (2007). A
168 L.Ed.2d 132
168 when under

would believe that he is not free to
all of the circumstances, a reasonable person would

leave. Nottingham v. W.2d 585 (Tex.App.
State 908 S. W.2d
v. State, (Tex.App. -- Austin 1995). A person is
1995). A

seized i.e.,
i. when he has been restrained by
e., arrested, only when means of physical force or
by means

when show of authority. California
when he has submitted to a show v. Hodari,
Calizornia v. 499 U.S. 621,
Hodari, 499

111 S.Ct 1547,
111 113 L.Ed.2d 690 (1991); Medtord
1547, 113 v. State
Medford v. S.W.2d 769 (Tex.Cr.
13 S.W.2d
State, 13

App. 2000). In order to challenge a search, the defendant has the burden to prove he
App. 2000).

has standing that he has a legitimate expectation of privacy, in the premises or thing

Appellant’s Brief
Eugene Pritchett
Robert Eugene 49 of
Page 49 of 60
 Granados v.
searched or seized. Granados S.W.3d 217 (Tex.Cr.App.
State 85 S.W.3d
v. State, The
(Tex.Cr.App. 2002) The

had a reasonable expectation of privacy in the vehicle and standing to
Appellant had

object to a search of the vehicle because Appellant had exclusive control of and

owner to use the vehicle.
received permission from the owner

misdemeanor offense of
Following Appellant’s arrest without warrant for the misdemeanor of

was handcuffed and confined
failure to display driver’s license, appellant was confined to the back

officers control unit. (RR:
seat of the arresting officers (RR: Vol. 2, P. 86)

When a policeman has made
When made a lawful custodial arrest of the occupant of an

may as a contemporaneous incident of
automobile, he may of that arrest, search the passenger

compartment of that automobile. New
ofthat York v.
New York v. Belton 101 S.Ct 2860,
Belton, 452 U. S. 454, 101

69 L.Ed. 2d The Belton holding was
2d 728 (1981). The was laid to rest in Arizona v. Grant 556
v. Grant,

129 S.Ct. 1710,
U. S. 332, 129 of
A.L.R. Fed.2d 657 (2009). In place of
1710, L.Ed.2d 485, 47 A.L.R.

may search a vehicle
approach: “Police may
Belton, the court adopted a two-pronged approach:

incident to arrest only if of the passenger
if the arrestee is within reaching distance of

compartment at the time of the search or it
compartment it is reasonable to believe that the vehicle

Gant at 1723.
of the arrest.” Gant
contains evidence of was confined in the
1723. Appellant was

of the arresting officer’s
backseat of officer’s patrol unit and unable to reach the passenger seat

was no
of his vehicle and there was
of no reasonable grounds to suspect that evidence of failure

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 50 of
to display drivers license would of the
would be found in the passenger compartment of

The arresting officer
vehicle. The officer testified that he had no probable cause justification
justification to

Appe1lant’s vehicle. (RR: Vol. 2, p. 89)
search Appellant’s

“An inventory search need not be predicated upon
“An upon the same
same requirements for

probable cause or in obtaining a search warrant. upon the
Its existence rests upon

impounded
officer has toward a lawfully impounded
caretaking responsibility a police officer

automobile.” Gill v. W.2d 307, 319 (Tex.Cr.App. 1980)
State 625 S. W.2d
v. State, 1980)

The state will contend that the warrantless search was
The was permissible as an

inventory search under South Dakota
Dakota v. Oggerman 428
v. Opperman, 428 U.S. 364, 96 S.Ct 3092, 49

The burden of
1000 (1976). The
L.Ed.2d 1000 upon the state.
of proof in that regards rests upon

Delgado
Delgado v.
v. State, S.W.2d 718, 721
State, 718 S.W.2d 721 (Tex.Cr.App. 1986)
1986)

An inventory search is to ascertain the contents of
An impounded
of a properly impounded

where a necessity exists (1) to protect the defendant’s property while it
automobile, where it

is in police custody, (2) to protect the authorities against claims of lost or stolen

property, or (3) to protect the police from potential danger. The necessary predicate
The

for an inventory search is that the automobile be lawfully impounded, that is to say,

An automobile may
Opperman, Supra. An
taken lawfully into official custody, Opperman, may be

impounded if
impounded removed from his automobile and placed under custodial
if the driver is removed

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
51 of
Page 51
 of the
arrest and no other alternatives are available other than to insure the protection of

vehicle. Evers v.State,
v.Slate 576 W.2d 46 (Tex.Cr.App 1978);
576 S. W.2d 1978); Christian v. State 592
v. State,

(Tex.Cr.App. 1980).
S.W.2d 359 (Tex.Cr.App. 1980). Alternatives were available to insure the protection

The owner
of the vehicle. The
of owner of was personally at the scene of
of Appellant’s vehicle was

owner’s vehicle as an alternative
of owner’s
detention and available to insure the protection of

impoundment and inventory. (RR: Vol. 2, P. 116)
to impoundment The vehicle could have been
116) The

owner of
by the owner
safely protected by of the vehicle. Evers,
Evers, Supra.

An inventory search on
An on a traffic arrest is illegal if
if the vehicle is parked lawfully

at the time and no need to take the vehicle into custody Fenton v.
Fenton S.W.2d
State 785 S.W.2d
v. State,

(TeX.App. -- Austin 1990,
443 (Tex.App. 1990, no was legally parked at a curb on
The vehicle was
no pet.). The

two blocks from Appellant’s home. (RR: Vol. 2, P. 91)
a residential street located two

Impoundment and inventory search is legal only if
Impoundment no alternative to
if there is no

impoundment. Backer v.
impoundment. S.W.2d 463 (Tex.Cr.App. 1983).
State 656 S.W.2d
v. State, Owner of the
1983). Owner

was a reasonable alternative to
vehicle at the scene to take custody of the vehicle was

impoundment and inventory. (RR: Vol. 2, P. 106-107)
impoundment 106-107)

In a leading Texas case, Benevidas v. S.W.2d 809 (Tex.Cr.App.
State 600 S.W.2d
v. State, (Tex.Cr.App.

of Criminal Appeals indicated impoundment
1980) the Court of
1980) would
impoundment and inventory would

To remove
be permissible in the following situations: “(1) To from an
remove a vehicle from an

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 52 of
 was not involved in an accident. (RR:
accident scene.” Appellant’s vehicle was (RR: Vol. 2,

106)
P. 106)

To remove
“(2) To remove a vehicle parked
parked in violation of regulations.” Appellant’s vehicle
Vehicle

was way, nor parked in a no-parking zone, and was
was not blocking a drive way, was legally

parked at a curb on a residential street. (RR: Vol. 2, P. 107) The owner
107) “(3) The owner or

driver requested or consents.” owner requested
Neither Appellant nor owner

impoundment or consented impoundment.
impoundment impoundment. (RR:
(RR: Vol 2, P. 93) “(4) Officer

was
reasonably believes vehicle is stolen.” Officer did not believe the vehicle was

The vehicle
stolen. (RR: Vol. 2, P. 94) “(5) The abandoned.” Appellant’s vehicle had
Vehicle is abandoned.”

not been abandoned. (RR: Vol. 2, P. 92)

The vehicle is a hazard.”
“(6) The was not a hazard impeding
hazard.” Appellant’s vehicle was

The vehicle
traffic. “(7) The danger to
Vehicle is so mechanically defective that it creates a danger

highway.” Appellant’s vehicle was
others using the highway.” was not mechanically defective nor

A statute authorizes impoundment.”
immobilized. (RR: Vol. 2, P. 99) “(8) A
immobilized. impoundment.” No
No

The driver is arrested for being
impoundment. “(9) The
applicable statute authorizing impoundment.

and no
intoxicated while in the vehicle and no other person
person is available to drive the

was arrested for failure to
vehicle or otherwise safeguard the vehicle.” Appellant was

owner was
display driver’s license, the owner was available at the scene to drive and safeguard

Appellant’s Brief
Roben Eugene
Robert Eugene Pritchett of 60
Page 53 of
 The driver is removed
(RR: Vol. 2, P. 95-96) “(10) The
the vehicle. (RR: removed from
from his

and placed under
automobile and
automobile and no
under arrest and no other alternatives are available other

impoundment to insure protection of the vehicle.” Owner
than impoundment
than Owner available to take

remove vehicle. Appellant’s
possession and remove Appe1lant’s wife located two blocks from vehicle

remove vehicle. (RR: Vol. 2, P. 94) Benevidas,
and available to take possession and remove Benevidas,

Supra.

may be lawful in a variety of circumstances.
Impoundment of an automobile may
Impoundment

Mayhood v. State
Mayhood v. W.2d 873, 874 (Tex. App. 1984,
State, 669 S. W.2d 1984, pet ref’d).
refd). Reasonable

may arise from: (1) an unattended vehicle that is illegally
impoundment may
causes for impoundment

parked or otherwise an impediment to traffic,
traffic, Collins v. W.2d 890 (Tex.
State 630 S. W.2d
v. State,

1982, pet ref’d);
Cr. App. 1982, remove
ref’ (1); (2) an unattended vehicle that the driver cannot remove

Sande] v.
because he is injured or physically or mentally incapacitated, Sandel State 253 S.
v. State,

W.2d 283
W.2d 1952); Broughton v.
283 (Tex. Cr. App. 1952); v. State, W.2d 147
State, 643 S. W.2d 147 (Tex. App.

no pet.) (3) a vehicle has been stolen or used in the commission of another
1982, no
1982,

crime, Gauldin v.
v. State, SW2d 411
State 683 S.W.2d 1984); Pearson
411 (Tex. Cr. App. 1984); Pearson v. State 649
v. State,

1983, pet ref’d);
S.W.2d 786 (Tex. App. 1983, becomes unattended because
ref’ d); or (4) a vehicle becomes

removed from the vehicle, placed under arrest, and his property cannot
the driver is removed

be protected by means other than impoundment, Evers v.
by any means W.2d 46
State 576 S. W.2d
v. State,

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene of 60
Page 54 of
 The arresting officer stated that impoundment
1978). The
(Tex. Cr. App. 1978). impoundment and inventory

was solely based upon
was arrest. (RR: Vol. 2, P. 94)
upon Appellant’s arrest.

The arresting officer conducted the inventory of Appellant’s vehicle. The
The The

burden is on show a lawful inventory. State v.
on the State to show S.W.2d 105,
Giles 867 S.W.2d
v. Giles, 105,

108 (Tex. App. -- El Paso, pet. ref’d).
108 As in Giles and this case, the State did not
refd). As

provide the trial court with a written inventory Policy.

impounded in the first place. The
Appellant’s vehicle should not have been impounded The

impoundment other than Appellant’s arrest that had
State did not offer any reason for impoundment

no The available alternatives were affirmed in court.
no connection with the vehicle. The

The testimony in court showed
The showed that the officer’s
off1cer’s inventory search did not include a

written inventory list nor did the State provide the court with a written inventory

policy. An inventory search is permissible under the federal and state constitutions
An

if impoundment.
if conducted pursuant to a lawful impoundment.

The court of
The of criminal appeals stated that “before and inventory search can be

impoundment.”
must be an inquiry into the lawfulness of the impoundment.”
upheld as lawful there must

Benevides,
Benevides, Supra.

The impound was
The impound was a violation of
of Appellant’s rights under Article 1,
1, Section 9

of the Texas Constitution.
of Constitution.

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 55 of
 CONCLUSION
X. CONCLUSION

The issues addressed in Appellant’s appeal are fundamental to the ingrained
The

judicial principals characteristic of sovereign nation. Appellant initially argued that

was prohibited by
his subpoena was by an insupportable technicality foreclosing receipt of

evidence that could be of an importance to a legal defense. Authorities acting in

no judicial
behalf of the State concluded evidence unavailable or lost should have no

was
weight within a legal matter concerning the innocence beyond guilt. Appellant was

by a judicial system from imparting to a jury an instructive guidance inherent
subdued by

Freedom from being subjected to
of law for its understanding. Freedom
within a code of

was subordinated to a callous disregard for the
unreasonable seizure and search was

people’s rights.

Appellant respectfully submits that he has shown may be what
shown that due process may what

is only due. Appellant’s right to be secure under Article 1,
1, Section 9 of the Texas

was of
Constitution was moment when
of no moment when Appellant’s vehicle was
was impounded
impounded and

impound were readily available to police officers
searched even though alternatives to impound

The arresting officer
acting in disrespect to their oath to the State. The who arrested
officer who

impounded and inventoried
Appellant for failure to display drivers license impounded

A commenced searching
Appellant’s vehicle. A second police officer arrived and commenced

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 56 of
Appellant’s vehicle not for valuables nor evidence to display drivers license but

The second officer without
of another crime -- -- any crime. The
searching for evidence of

developed probable cause to search Appellant’s vehicle suspiciously found a trace

amount less than 0.01
amount gram of cocaine. The
0.01 hundredth of a gram The exclusionary rule is

warranted.

Appellant entrusts the Honorable Court to exclude the unlawfully obtained

remand of
evidence and enter a dismissal or accord a remand new trial.
of this case for a new

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 57 of
 PRAYER FOR
XI. PRAYER FOR RELIEF
RELIEF
WHEREFORE ABOVE PREMISES
WHEREFORE ABOVE PREMISES CONSIDERED,
CONSIDERED, Appellant prays that
Honorable Court reverse the judgement
judgement of the trial court and render judgement
judgement in

of Appellant, or in the alternative, Appellant respectfully request that the
favor of

273“rd District Court
remand this case back to the 273
Honorable Twelfth Court of Appeals remand

new trial.
of San Augustine County, Texas for a new
of

Respectfully submitted,

LAW OFFICE
LAW OFFICE OF DONOVAN PAUL
OF DONOVAN DUDINSKY
PAUL DUDINSKY
701 South Liberty Street
701
75972
San Augustine, Texas 75972
Phone:
Phone: 936-275-9871
936-275-9871
Fax: 936-275-9655
936-275-9655
E-Mail: d auldudinsk ahoo.com
dpauldudinsky@yahoo.com

XII. CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
copy of
I hereby certify that a true and correct copy was served
of this Appellant’s Brief was

on each attorney of record or party in accordance with the Texas Rules of Civil
on

on this 12
Procedure (Appealed) on 12"‘
th
day of January, 2015.

/s/donovan paul dudinsky
___________________________
Donovan Paul Dudinsky
Donovan

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 58 of
 CERTIFICATE OF
XIII. CERTIFICATE COMPLIANCE
OF COMPLIANCE
document contains 11,116
I certify that this document Words (counting all parts of the
11,116 words

document was
font. I certify that this document Word Perfect X6, and according
was prepared with Word

TRAP 9.4(i)(1)
by TRAP
to the programs word-count function, the sections covered by

11,116 words.
contains 11,116

/s/donovan paul dudinsky
donovan
___________________________
Donovan Paul Dudinsky
Donovan

Appe11ant’s Brief
Appellant’s
Eugene Pritchett
Robert Eugene of 60
Page 59 of
 APPENDIX
XIV. APPENDIX
XIV.

APPENDIX “A”
APPENDIX “A” From Illegal Detention
Motion to Suppress (Evidence Obtained From
Motion

Impoundment and Inventory).
and Illegal Impoundment

APPENDIX “B” Judgement of Conviction by
APPENDIX “B” by Court

APPENDIX “C” Trial Court’s Certification
APPENDIX “C” of Appeal
Certification of Defendant’s Right of

APPENDIX “D” Defendant’s Written Notice of Appeal
APPENDIX “D” Appeal

APPENDIX “E”
APPENDIX “E” of
Defense Exhibits 2, 3, and 4 Photographs of Intersection of

Alleged Traffic Violation

Appellant’s Brief
Eugene Pritchett
Robert Eugene of 60
Page 60 of
APPENDIX “A”
 IN THE 273"’ JUDICIAL DISTRICT COURT OF . FILED
SAN AUGUSTINE COUNTY, TEXAS -
#§_L—,_30"7‘:%‘i@5>"
STATE OF TEXAS
.4
Clerk
JEAN STEPTOE District
SAN AUGUST‘ TEXAS
THE STATE OF TEXAS § or W.“

VS. § Cause No. CR-13-8411
Cause No. CR-11-8412
ROBERT EUGENE PRITCHETT §

MOTION To SUPPRESS
(Evidence Obtained From Illegal Detention and Illegal Impoundment and Inventory)

TO THE HONORABLE JUDGE OF SAID COURT:
Now Comes Defendant, Robert Eugene Pritchett respectfully moving the Honorable Court
to suppress and exclude illegally obtained evidence pursuant to an unlawful detention and illegal

impoundment and inventory Search of Defendant’s vehicle in violation of the Fourth Amendment

of the United States Constitution and Article 1, Section 9 of the Constitution of the State of

Texas, and Article 38.23 of the Texas Code of Criminal Procedure.

Statement of Facts

In the early evening of Thanksgiving November 24, 2011, Defendant’s vehicle was observed

on a public roadway by a passing police officer. The police officer began pursuit and followed

Defendanfs vehicle for half-mile. The police officer stopped the Defendant two blocks from

Defendant’s residence for fail to stop at a designated point at stop sign. Upon his approach to

Defendant’s vehicle, police officer who knew Defendant, knew his place of residence, knew that

Defendant’s place of employment was a local law firm, asked Defendant for Defendant’s driver’s

license that Defendant did not have on his person at the time, then asked Defendant for consent

to Search Defendant’s vehicle. Defendant not consenting to search, was asked to exit his vehicle,

Page 1.

©@l?@Y
at which time, police officer then asked Defendant to open his mouth into which police officer

shined a flashlight. A second police officer showed up and approached Defendant for purpose
of detecting some suspicious odor and detecting none told the first police officer to arrest

Defendant for not having his driver’s license on his person. Defendant’s hands were handcuffed

behind his back. Defendant then being secured was placed inside first police offlcer’s patrol car.

Defendant’s employer (lawyer) and owner of Defendant’s vehicle that Defendant drove for

business and personal use pursuant owner’s permission, nevertheless, owner of vehicle arrived

at the scene of detention. The police officers nevertheless seized, impounded, and conducted an

inventory of said vehicle, during which claiming discovery of a trace or a smear of cocaine in the

inside of the door pocket/panel of open driver’s side door.

Agggment and Authorities

I.

Roadside detention of Defendant’s motor vehicle was in violation of Transportation Code

section 544.010 that governs operator stopping procedure when approaching Stop Signs and

Yield Signs, to wit: (a) “unless directed to proceed by a police officer or traffic-control

signal, the operator of a vehicle or streetcar approaching an intersection with a stop sign shall

“
stop as provided by Subsection ( c )”. ( c ) An operator required to stop by this section shall
stop before entering the crosswalk on the near side of the intersection. In the absence of a cross-

walk, the operator shall stop at a clearly marked stop line. In the absence of a stop line, the

operator shall stop at the place nearest the intersecting roadway where the operator has a View

of approaching traffic on the intersecting roadway”.

Page 2.
 The officer who conducted the roadside detention, impoundment and inventory search of

Defendant’s vehicle issued a warning citation on the basis that Defendant Failed to Stop at a

Designated Point at Stop Sign. Defendant was subsequently arrested and issued citation for

Fail to Display DL. However, The erroneous day/date/time of Contact appearing at the top

of citation regarding warning for failed to stop at a designated point at stop sign and arrest/

citation for failure to display driver’s license is dated: 11/25/2011 3:22 AM.. Showing not

that the encounter had though factually taken place in the early evening of November 24, 201 1,

but shows the encounter took place on the following morning of November 25, 2011
@ 3:22 am.
The Defendant’s vehicle was observed by a police officer being on a public roadway. The

police officer had not observed a crime having been committed nor did said officer observe a

crime in progress. The police officer pursued and follow Defendant’s vehicle for one-half mile.

A hunch, suspicion, or good faith perception is not enough alone to satisfy the probable cause
burden. St11ll v. State, 772 S.W.2d 449 (Tex.Cr.App. 1989). The events perceived by the police

officer must be out of the ordinary, suspicious and tie a suspect with a criminal act. _S_tfi

The Defendant was pulled over and subjected to roadside detention. A person is seized for
constitutional purposes, when under all of the circumstances, a reasonable person would believe

that he is not free to leave. Nottingham v. State, 908 S.W.2d 5 85 (Tex.App.— Austin 1995).

Incident to the initial roadside detention, the Defendant was arrested without warrant for not

having his drivers license on his person, handcuffed, and Defendant was placed inside a patrol

car. An arrest occurs when a person’s liberty or movement is restricted or restrained. Arnores v.

§t_at_e, 816 S.W. 2d 417 (Tex.Cr.App. 1991). The police searched Defendant’s vehicle incident to

Defendant’s arrest. In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed. 2d 485, A.L.R.

Page 3
 Fed. 2d 657 (2009) the Court adopted a two-pronged approach: “Police may search a vehicle
incident to arrest only if the arrestee is within reaching distance of the passenger compartment at

the time of the search or it reasonable to believe that the vehicle contains evidence of the offense

of arrest.” Defendant was secured in patrol car and therein was unable to reach the passenger

compartment of his vehicle, and the vehicle did not contain evidence of the crime of not having

his drivers license. “The Defendant was arrested for having a suspended license; there were no

reasonable grounds, reasonable suspicion, or probable cause to suspect that evidence of

license suspension would be found in the vehicle.” §a_n_t_.

Following the placement of Defendant in the patrol car, the police officers impounded

Defendant’s vehicle and conducted an inventory search of Defendant’s vehicle at the scene of

detention. Impoundrnent and inventory search legal only if no alternative to impoundment.

Backer v. State, 656 S.W.2d 463 (Tex.Cn'm.App. 1983). Inventory search on traffic arrest is

illegal if vehicle parked lawfully at time and no need to take it into custody. Fenton v. State,

785 S.W.2d 443 (Tex. App.— Austin 1990, no pet.)

Defendant’s vehicle was lawfully parked on a residential roadway near its roadside curb.

Defendant’ s vehicle was not parked in a no parking zone. Defendant’s lawfully parked vehicle

did not impede traffic. Defendant’s vehicle had not been abandoned or immobilized.

Defendant’s vehicle was lawfully parked two blocks away from Defendant’s residence where

Defendant’s wife resided and was available to take possession of and safeguard Defendant’s

vehicle. Defendant’s arrest for traffic violation would have required Defendant to be transported

to jail and following procedure would have been in a short time (was released on personal

recognizance) released and could have returned to the vehicle to take possession of and

Page 4
 safeguard vehicle. Defendant’s vehicle was not stolen. Defendanfs lawyer, employer, and owner

of vehicle who gave Defendant permission to drive vehicle for business and
personal use was

available at the scene and time of detention to take possession of vehicle. Defendant’s vehicle

was not seized as evidence being connected to a crime. There was no reasonable connection

between the arrest and the vehicle.

An automobile may be impounded if the driver is removed from his automobile and placed
under custodial arrest and no other alternatives are available to insure the protection of the

vehicle. Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.l978).

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades

away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035,

29 L.Ed. 564 (1971). Because judicially sanctioned inventory search of automobile is dilution of

Fourth Amendment right to be secure against unreasonable searches and seizures, impoundment

and search must be carefully examined and narrowly confined in each case. Rodriguez v. State,

641 S.W.2d 955 (Tex. App.— Amarillo 1982). Irnpoundment improper . . .no showing car

illegally parked. RodrigL_1ez.

In the leading Texas case, Benavides v. State, 600 S.W. 2d 809 (Tex.Crim.App. 1980) the

court of Criminal Appeals indicated irnpoundment would be likely be permissible in the

following situations:

1. To remove a vehicle from an accident scene. Defendant’s vehicle was not involved in an
accident.
2. To remove a vehicle parked in violation of regulations. Defendant’s vehicle was not
parked in violation of regulations.
3. The owner or driver requested or consents. Neither owner or driver requested or
consented.
4. Officer reasonably believes vehicle is stolen. Vehicle not stolen.

Page 5
 5. The vehicle is abandoned. The vehicle was not abandoned.
6. The vehicle is a hazard. The vehicle was not a hazard impeding traffic flow.
7. The vehicle is so mechanically defective that it creates a danger to others using the
highway. The vehicle was not mechanically defective.
8. A statute authorizes impoundment. No applicable statute authorizing impoundment.
9. The driver is arrested for being intoxicated while in the vehicle and no other person is
available to drive the vehicle or otherwise safeguard it. The driver was not arrested for being
intoxicated, and other persons were available to drive the vehicle and safeguard the vehicle.
10. “If the driver is removed from his automobile and placed under arrest and no other
alternatives are available other than impoundment to insure the protection of the vehicle.”
Other alternatives were available other than impoundment to insure the protection of the vehicle.
Benavidas

WHEREFORE, said Defendant prays that hearing be had hereon and that upon hearing
hereof that this Court judicially find and determine that said detention and seizure was without

warrant and impoundment unreasonable in violation of the Fourth and Fourteenth Amendments

to the Constitution of the United States and Article 1, Section 9 of the Constitution of Texas, that

the substance seized and taken from said vehicle of the Defendant at said time be suppressed and

excluded from evidence in this case pursuant to Section 38.23 (a) of the Texas Code of Criminal

Procedure and the,State of Texas and its agents prosecuting this case be ordered to refrain from

offering in evidence or producing in the presence of the jury on the trial of this case and

substance claimed by the State to be trace/smear cocaine and from asking any question of either

of said police officers as to the presence of said substance in said vehicle at said time and place.

~onovan aul Dudinsky
Counsel for Defendant ~~ +
A .. Ll-,

SWORN TO AND SUBSCRIBED BEFORE ME by Donovan Paul Dudinsky onkiiiiya-i-, 2014,
who being one and same acknowledged by his signature in my presence to which signature
have placed my hand and seal of office.

~
Notary Public, State of Texas
~
~~ JANICE
Nmaw Public,
K. MILLER
sxme 01‘ mos
My Commission Expires Page 6
San Augustine Counbf’ Texas
My Commission Expires. le — t2 A 1
. .
_

Ocvooec 22. 2017
 ORDER
The above Motion to Suppress Evidence Obtained From Illegal Detention and Illegal

~
Impoundment and Inventory was duly filed, presented, and heard at the time and
manner
required by law and the Court having duly considered same, finds
that said Motion should be

and is hereby Granted Denied , to which ruling Defense duly excepts and

respectfully requests hereby that the Court file written findings
its of fact and conclusions of
law.

PRESIDING IUDGE
15'
and 273“ Judicial Districts
APPENDIX “B”
 IN THE DISTRICT COURT OF SAN AUGUSTINE COUNTY
STATE OF TEXAS

THE STATE OF TEXAS §

VS. § CAUSE NO. CR-13-8411

ROBERT EUGENE PRITCHETT
Incident
State
No./TRN: 915386994X
ID No.: 04876899
§ ,q/ 5
5['L""‘C
1 "20
JEAH STE.’-‘TOE D-fgjrjci
~~
A

rk

JUDGMENT OF CONVICTION BY COURT; :9” f~UG“d§“tr§:, T

COMMUNITY SUPERVISION 5

Judge Presiding: Charles R. Mitchell Date of Judgment: September 10. 2014
Attorney for Attorney for
the State: J. Kevin Dutton Defendant: Donovan Dudinsky
Offense convicted of: Possession of Controlled Substance Drug Free Zone 8481.115 481.134 HSC
Degree: Third Date of Offense: November 24. 2011
Applicable punishment range (including enhancements, if any): 2 years to 10 years TDCJ ID
Charging Instrument: Indictment Plea: Not Guilty Jury Verdict: Guilty
Terms of Plea Five (5) years confinement in the Texas Department of Criminal Justice Institutional Division
Bargain: probated for five (5) years; a fine in the amount of $3000.00
not probated: restitution as stated below.
Verdict for Offense: Guilty
Plea to Enhancement Finding on Finding on
Paragraph(s): N/A Enhancement: N/A Deadly Weapon: N/A
Finding of Finding of
Family Violence: N/A Bias or Prejudice: N/A
Date Sentence Court
Imposed: September 10. 2014 Costs: $339.00
Punishment and Place Date to
of Confinement: 5 years TDCJ ID Commence: September 10, 2014
probated for 5 years; Fine of $3000.00
Time Credited: Total amount of
Restitution/Reparation: $140.00
Name & address for
Restitution: DPS Lab
Victim Impact
Statement Returned:
On the 4m day of August, 2014, the above numbered and entitled cause was called for trial, and the State
appeared by the attorney stated above, and the Defendant and the Defendm1t’s attorney, as stated above, were also
present. Thereupon both sides armounced ready for trial. A jury of twelve persons was duly selected, impaneled and
sworn. The Defendant entered the above plea to the charging instrument afier reading thereof. Having heard the
indictment read, and the defendant’s plea of not guilty thereto, the case proceeded to trial before the jury and after
conclusion of the case and the jury having all the evidence submitted, the jury was duly charged by the Court and the
Jury retired in charge of the proper officer to consider their verdict. The Jury after having reached a verdict in the
guilt and innocence stage was brought into open Court by the proper officer in the presence of the defendant and his
counsel. The Jury in open Court and in due form announced that it had reached a verdict, which verdict was
received by the Court and pronounced in open Court and entered into the minutes of the Court as follows, to-wit:

“VERDICT FORM #1

WE,
the Jury, find the Defendant, ROBERT EUGENE PRITCHETT, guilty of the offense of
possession of a controlled substance, as charged in the indictment.

/s/ Rickey Smith
Presiding Juror”

And thereupon, the Defendant elected to have his punishment assessed by the Court.

And thereupon the Court ordered a pre-sentence investigation to be done.

It is therefore ORDERED, ADJ UDGED and DECREED by the Court that the defendant is guilty of the
offense stated above, that there is an affirmative finding of a drug free zone, and that punishment has been sent by
confinement in the Texas Department of Criminal Justice Institutional Division for five (5) years. It is, therefore,
ORDERED by the Court that the imposition of the sentence in this case is hereby suspended. The Defendant is
placed on community supervision for five (5) years, subject to the conditions of supervision imposed by the Court in
an order that is hereby incorporated into this judgment.

It is therefore ORDERED, ADJUDGED and DECREED by the Court that the defendant is guilty of the
offense of possession of a controlled substance drug free zone and that punishment be fixed and assessed as set forth
above, and the State of Texas recover of said Defendant all court costs in this prosecution expended, for which
execution will issue.

Furthermore, the following special findings or orders apply: none.

/A/z//
Jddge Presiding

Date Signed: 74 /( Z V/ff
S‘

Defendant’s right thumbprint:
APPENDIX “C”
 CAUSE N0. CR-8411

THE STATE OF TEXAS § IN THE 273“ JUDICIAL DISTRICT
§
VS. § COURT OF
§
ROBERT EUGENE PRITCHETT § SAN AUGUSTINE COUNTY, TEXAS
TRIAL COURT’S CERTIFICATION OF DEFENDANT’S RIGHT OF APPEAL

L
1, Judge of the trial court, certify this criminal case:

is not a plea-bargain case, and the Defendant has the light of appeal; (or)

is a plea-bargain case, but matters were raised by written motion filed and ruled on before

trial and not withdrawn or waived, the Defendant has the right to appeal; (or)

is a plea-bargain case, but the trial court has given permission to appeal, and the Defendant

has the right to appeal; (or)

is a plea-bargain case, and the Defendant has NO right to appeal; (or)

is a deferred adjudication case, and the Defendant has a limited right to appeal; (or)

the Defendant has waived the right to appeal. -

E PRESID

f- /p r 2 o /«-r
DATE SIGNED
I acknowledge that I have been informed of the above Certification court and
by the Irial
waive a receipt of a copy thereof.

DEFENDANT

~
J El LED ~
AS?/1»? bo'owcK:"'g_ M
Q -/‘Q 29 /(
JEAN STEPTOE Dlsiict lerk
SAN AU ,1 ,TEXAS
av ..___/
/
APPENDIX “D”
 CAUSE NO. CR-8411
THE STATE or TEXAS § IN THE 273“ JUDICIAL DISTRICT

vs. § COURT or
ROBERT EUGENE PRITCHETI‘ 45 SAN AUGUSTINE COUNTY, TEXAS
WRITTEN NOTICE or APPEAL
TO THE HONORABLE JUDGE or SAID COURT:
Now Comes Robert Eugene Pritchett, Appellant in the above styled and numbered cause,
on this 7"‘ day of October, 2014, and Appellant timely files this his written notice of appeal with

said Court. Appellants’s sentence and fine was imposed on the 10"‘ day of September, 2014.

Appellant files this his written notice of appeal within thirty (30) days of sentence being

imposed and pursuant to Vemon’s Ann. Rules App. Proc. Rule 26.2 (a)(1) and Appellant files

this his written notice of appeal based upon Appellant having been convicted by jury of

Possession of a Controlled Substance in a Drug Free Zone and Appellant was sentenced to serve

five (5) years regular probation and assessed a fine amount of Three Thousand Dollars
-

12"‘ Court of Appeals the trial couIt’s judgment in
($3,000.00). Appellant desires to appeal to the

this criminal conviction litigation.

WHEREFORE PREMISES CONSIDERED, Appellant respectfully requests that
Appe1lant’s Written Notice of Appeal be entered of record on this date.

Entered by Appellant’s Attorney on thisl"'_day of October, 2014.
Respectfully submitted,

3
onovan aul Dudinsky
;,7[%‘
:'3Bo'3Loc-( _m.q TSBN: 24038869 /
Attorney for Appellant,
:F_j__
IAN STE!-":'OE
2’)
.

Céstnct rk Robert Eugene pl-itchett
ass‘! IUSUSTJQEC
fig
 CER HHCAIE OF SERVICE
Hereby certified that a true and correct file—stamped copy of the original document having

been filed and thereby become dully recorded has heen personally served by hand on this day of

October 7, 2014, to the oflice of the District Attorney located in the 273'“ Judicial District

Courthouse of San Augustine County, Texas, San Augustine, Texas 75972.

Donovan §aul guééigky J,/3
APPENDIX “E”