ACCEPTED
06-14-00221-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/22/2015 2:39:48 PM
DEBBIE AUTREY
CLERK
No.06 -14-00221-CR
COURT OF APPEALS FILED IN
6th COURT OF APPEALS
SIXTH DISTRICT OF TEXAS TEXARKANA, TEXAS
TEXARKANA 7/22/2015 2:39:48 PM
DEBBIE AUTREY
Clerk
Brian Woodard
Appellant
vs
The State of Texas
Appellee
________________________________________________________
APPEAL FROM THE 254TH DISTRICT COURT OF HUNT
COUNTY, TEXAS
RICHARD BEACOM, PRESIDING
__________________________________________________________
REPLY BRIEF OF APPELLANT
__________________________________________________________
Charles E. Perry
State Bar No. 15799700
1101 Main Street
P.O. Box 720
Commerce, Texas 75429
Tel. 903-886-0774
Fax. 903-886-2043
Cell. 940-613-8439
Attorney for Mr. Woodard
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
BRAIN EUGENE WOODARD
BUSTER COLE UNIT, 3801 SILO ROAD ROAD
BONHAM, TEXAS 75418
ATTORNEY FOR APPELLANT
On Appeal:
Charles E. Perry
State Bar of Texas No. 15799700
1101 Main Street
Commerce, Texas 75429
ATTORNEY FOR THE STATE OF TEXAS
Kelli M. Aiken
Assistant District Attorney Hunt County
2500 Lee Street,
Greenville, Texas 75440
ii
Table of Contents
Identity of parties and counsel……………………….............................................ii
Table of Contents…………………………………………………………………iii
Index of Authorities……………………………………………………………….iv
I.Statement of the Case…………………………………………………………….1
II.Statement Regarding Oral Argument……………………………………………1
III.Issues Presented……………………………………………………………… 1-2
IV.Statement of Facts………………………………………………………………2
V.Summary of the Argument…………………………………...………………3&4
VI.Argument and Authorities………………………………………………………4
1. The trial court committed reversible error in admitting and considering the
testimony of trooper Zane Rhone with respect to the stop and search for drugs after
he finished or should have finished his duties with respect to the traffic citation for
which the Appellant was stopped.
2. The trial court committed reversible error in admitting the testimony of trooper
Zane Rhone with respect to the stop and search for drugs since there was no
probable cause to stop the Appellant and the automobile the Appellant was driving.
VII. Conclusion and Prayer………………………………………...……………..13
Signature……………………………………………………………………….… 13
Certificate of
Service…………………………………………………………………..……..….13
iii
Index to Authorities
Cases:
Caballas v. United States, 405 U.S. 405(2005)……………………………..…4,5,8
Delaware v.Prause, 440 U.S. 675 at 686…………………………………….5,6,7,8
Florida v. Royer, 460 U.S. 491, 500 (1983)………………………………………4
Ford v. State, 158 S.W.3d 488(Tex.Crim.App.2005)…………………………..…9
Garcia v. State, 43 S.W. 3d 529, 530…………………………………………10,12
Maryland v. Pringle, 540 U.S. 371(2003)……………………………….……10.12
Rodriguez v. United States, 575 U.S. 1609 (2015)………………………..3,4,6,7,8
Terry v. Ohio, 392 U.S. 1(1968……………………………………………………4
United States v. Sharp,470 U.S. 675 at 686…………………………………...…4,5
United States v. Smith, 799 F.3d 704, 708(11th Cir.1986)……………………...6,10
Statutes:
Ohio Revised Code section 4501;4503.19-22;4513.02………………………4,9,11
Texas Transportation Code section 545. 062…………………………………...… 9
504.945………….…………..........................................................................2
United States Constitution
Article IV section 1-Full Faith and Credit Clause………………………………4,10
Fourth Amendment-Unreasonable Search and Seizure………………………….…6
iv
I. STATEMENT OF THE CASE This case involves Brian Eugene Woodard who
was charged and indicted with the felony offense of possession of a controlled
substance, namely cocaine, in an amount of 400 grams or more .(CR 8). He was
tried before the 254th District Court of Hunt County, Texas without a jury
beginning on October 20, 2014, 2014(See RR, V1-8). He was found guilty and
sentenced to 40 years in the Institutional Division of the Texas Department of
Criminal Justice on December 4, 2014. (CR 93-96). At trial, the defense raised and
completed the requirements for a necessary defense. The trial judge denied this
request. This appeal follows.
II. STATEMENT REGARDING ORAL ARGUMENT
The Appellant does not request Oral Argument.
III. ISSUES PRESENTED
The issues presented for review are:
1.The trial court committed reversible error in admitting and considering the
testimony of officer Zane Rhone with respect to the stop and search for drugs after
he finished or should have finished his duties with respect to the traffic citation for
which the Appellant was stopped.
2.The trial court committed reversible error in admitting the testimony of officer
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Zane Rhone with respect to the stop and search for drugs since there was no
probable cause to stop the Appellant and the automobile Appellant was driving.
IV. STATEMENT OF THE FACTS
Trooper Zane Rhone was working on I-30 in Greenville, Hunt County, Texas when
he first observed the Appellants car. (RR8/, p.11/19-25; p.12/1-25)The Appellant
was stopped by DPS trooper Zane Rhone for following to close and not being able
to read the name of the State on the license plate (RR8/ p. 12/21-25;p.13/1-4;13/5-
12. Trooper Rhone testified the law prohibits more than half of the name of the
state from being obscured.(RR8/ p. 13/17-22). Trooper Rhone testified that the
Appellant was following to close to come to a stop to keep from colliding.(RR8/
p.13/23-25;p.14/1-2;14/3-25) His testimony placed the Appellant at 40 feet from
the car in front when it should have been 157 feet.(RR8/ p. 16/1-5). Officer Rhone
testified later that there was nothing in his official report about stopping the
Appellant for following to close to the car in front.(RR8/p.65/22-25;p. 66/1-5;
p.66/6-14). Trooper Rhone testified that while he was on the side of the road he did
not observe the Appellant following to close or his license plate being obstructed.
(RR8/ p.62/7-22).Texas Transportation Code sec.504.945. He testified that he
started up after the Appellant because he was curious as to two clean cars that did
not have Texas plates.(RR8/, 63/2-9). He testified that when he pulled on to the
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road because the car was clean this was not probable cause to stop the
Appellant(RR8/.p.79/17-25; 80/1-6).When trooper Rhone stopped the Appellant he
could smell air freshner and the car was clean (RR8/ p.17/16-22;18 p.18/2-5). His
testimony was that after the stop he could see that the plates were from Ohio
(RR.8/ P.16 /15-21. Trooper Rhone testified that the Appellant said that the license
plate bracket came from the dealer the way it was.(RR8/ p. 51/5-25; 52/1-5).
Appellant grandfather Mack Woodard testified that he bought the car in 2013 and
that the license plate frame came from the dealership where it was installed.(RR8/.
p. 101/ 2-25).
While talking to the Appellant trooper Rhone testified that he was getting his
warning started.(RR8/. p. 25/ 11-15). Officer Rhone had testified while talking to
the Appellant he told the Appellant that he would get a warning but he said at that
time he had not written the warning.(RR8/ p.20/15-180).
V.SUMMARY OF THE ARGUMENT
A. The Appellant was detained and question beyond the reasonable time it should
have taken to issue a warning ticket for what the Texas Department of Public
Safety said Appellant was in violation of traveling to close to the car in front and
an obstructed license plate under Texas law and thus any and all contraband as a
result of the stop and search should have been suppressed. Rodriquez v. United
States, 575 U.S. 1609(2015)
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B. The Appellant had the right to proceed down Interstate 30 in Hunt County,
Texas free from a stop by the Texas Department of Public Safety since the State of
Texas should recognize Ohio Revised Statutes 4501 et. seq. which allows and does
not prohibit the type of bracket placed on the vehicle Appellant was driving by the
dealer and used to secure the Appellants Ohio license plate under Article 4 section
1 of the “full faith and credit clause” of the United States Constitution. The stop of
the Appellant was unreasonable and pretextual.
VI. ARGUMENT AND AUTHORITIES
A. The court erred in admitting and considering the evidence of the search as well
as the contraband. The stop in the instant case was much like the stop in Terry v.
Ohio, 392 U.S. 1 (1868). In the case at bar we are dealing with the tolerable
duration of a police inquiry in a traffic stop context as determined by the seizure’s
mission—to address the traffic violation that warranted the stop. Caballes v.
United States, 405 U.S. 405 at 407. In United States v. Sharp,470 U.S
675,685(1985); Florida v. Royer, 460 U.S. 491,500(1983). This is where the scope
of the detention must be carefully tailored to the underlying justification. This is
only because the purpose of the stop may last longer than necessary to effectuate
the purpose. This was not done in the case at bar. The stop and lengthy detention
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was what Caballes tries to prevent. Trooper Zane Rhone of the DPS when talking
to the Appellant told the Appellant he would be getting a warning but had not yet
written out the warning.(RR.8/ p. 20/15-18). Later while talking to the Appellant
trooper Rhone got the warning started.(RR. p. 11-15). Trooper Rhone had ample
time to complete the warning but did not do so. The authority for trooper Rhone
seizure of the contraband ended before he searched and seized the contraband
because of his delay in completing the task incident to the issuance of the traffic
warning ticket. The case at bar is similar to where the court said in United States v.
Sharp,470 U.S. 675 at 686 where the court said that the authority for the seizure
ends when the tasks tied to the traffic infraction are—or reasonably should have
been completed. The fact that officer Raine noticed that the car was clean of
smelled of air freshner (RR8/ p.17/15-22;p.18/ 2-5) does not justified a prolonged
stop time wise. Trooper Rhone admitted so as he pulled onto the road when he saw
the Appellant’s vehicle.(RR8/ p. 79/17-25); 80/1-6). The court laid out in Caballes,
543 U.S. at 408 that beyond determining whether to issue a traffic ticket, an
officer’s mission includes “ordinary inquires incident to the traffic stop. These
were set out in Delaware v. Prause, 440 U.S. 648, 659-660(1979) and included
inquires involving checking driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the automobile’s
registration and proof of insurance. In the case at bar all this was done and there
5
was no reason or probable cause for delay to justify a search and seizure of
contraband. For these reasons the contraband evidence should have been
suppressed and not admitted into evidence and considered by the court under the
4th Amendment to the United States Constitution as well as the case of Rodriguez
v. United States, 575 U. S. 1609(2015).
Both State and Appellant have cited Rodriguez v, Untied States, 135 S. Ct.
1609 and this case sheds light on the instant case. As set out in the state’s brief
citing Rodriguez at 1615 the court sets out four prongs that measure the legality of
a traffic stop with respect to the time length and the necessity of issuing a ticket
and addressing safety concerns.
See Delaware v. Prouse, 440 U.S. 648, 658-660(1979).1. Trooper Rhone
could have issued a warning or violation ticket had he chose to do so 2.He checked
the drivers license and identification 3. He easily had time to verify the registration
and insurance and 4. He had time to determine if the Appellant or other occupant
had outstanding warrants which they did not.
Just because the occupant had a record (Appellant misdemeanors only)
with no outstanding warrants did not give Trooper Rhone the right to go further.
This would be true even after Trooper Rhone went further and found a .22 caliber
pistol in the glove box. The pistol was not open and obvious and the Appellant was
not prohibited from carrying a pistol because he was not engaged in any illegal
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activity that was known to Trooper Rhone and was travelling. Trooper Rhone said
that he could not place gun with Appellant as the gun was in the glove box and
Appellant was away from the vehicle when the gun was found.(RR8/ p. 69 lines
23-25 and p. 70 lines 1-24). He also said that a person who is traveling had a right
to carry a firearm as long as he is not a convicted felon (RR 8/ p. 71 Lines 14-25)
Appellant urges upon the court that the case at bar is a timing case much
like Rodriguez. While speaking with Appellant early on, trooper Rhone starting
writing a warning ticket while waiting on a return from dispatch.. He recieved
partial information back from dispatch during this conversation with
Appellant.(RR8/ p. 25 lines 10-17)
The return from dispatch did not contain information under the doctrine laid
down in Delaware v. Prouse, 440 U.S. 648, 650-660(1979) that would warrant
trooper Rhone from going further.(vehicle occupant Mr. Person was a convicted
felon but there was no warrants on him).
So as to measure the time line of the stop we can look at a line of
questioning by the state during the redirect examination of trooper Rhone. The
state ask trooper Rhone a line of questions with respect to Appellants alleged
obstructed license plate and how many times he mentioned the obstructed plate in
The case at bar is a case that squares with Rodriguez and is just like Rodriguez, a
time and delay case even though Rodriguez was a delay for a drug dog. The instant
7
case falls under Rodriguez and the time restraints Rodriguez places on such cases
after the four prongs are satisfied and not delayed.
In order to evaluate the time the Appellant is urging upon the court we can
look at the times testified to by trooper Rhone with respect to the video(Exhibit
3).(RR/8 p. 77 lines 2-17). Those times were 1:15, 1:35, 2:04, 2:15, 2:34 and 6:00
(RR/8 p. 77 lines 21-25 and p. 78 lines 1-3). The stop and detention is what the
holding in Caballas tries to prevent when the court held a traffic stop “can become
unlawful if it is prolonged beyond the time reasonably required to complete the
mission of issuing a warning ticket.
In summary there is no evidence with respect to the four prongs set out
above in Callallas and cited recently in Rodriguez , found in the facts of the instant
case to justify the time delay found here beyond the time to write the traffic ticket.
B. The Appellant was stopped by DPS trooper Zane Rhone for following to close
and not being able to read the name of the state on the license plate(RR8/ p.12/21-
25;p. 13/1-4;13/ 5-12. Officer Rhone testified that the Appellant was following to
close to keep to come to come to a stop from colliding.(RR8/ p. 13/23-25; p.14/1-
2; 14/3-25.His testimony placed the Appellant at 40 feet from the car in front when
it should have been 157 feet(RR p.16/1-5.However trooper Rhone further testified
that there was nothing in his official report of the incident at bar about the
Appellant following to close to the car in front(RR8/ p.65/ 22-25; p.66/1-5;66/ 6-
8
14). He also testified that while he was on the side of the road he did not observe
the Appellant following to close or his license plate being obstructed.(RR8/ p.
62/7-22). The state therefore did not sustain their burden with respect to following
to close as probable cause to stop the Appellant under Texas Transportation Code
section 545.062. In Ford v State, 156, S.W.3d 488 (Tex. Crim. App. 488, 493-494)
the court held that there had to be more than such statements of conclusion in order
to justify a stop for the reason of following to close.
Trooper Rhone testified that he started up to follow the Appellant because he
was curious as to two clean cars that did not have Texas plates.(RR p. 63/2-9). The
officer testified further that he pulled upon the road because the car was clean but
this was not probable cause to stop the Appellant (RR8/ p. 79/ 17-25; 80/1-6). The
officer went on to testify that after pulling the Appellant over he could see that the
license plate was OHIO. According to trooper Rhone the Appellant told him that
the license plate holder plate came the way it was from the dealer.(RR8/p.51/5-25;
52/1-5). Appellants grandfather Mack Woodard confirmed this by testifying that the
license plate frame came from the dealer where it was installed.(RR8/p.101/ 2-25).
Under Ohio Revised Statutes sections 4501; 4503.19-22;4513.02 there are no
obstructive plate restrictions on Ohio license plates dealing with holder or frame
and the Ohio law was complied with at the dealership(RR8/ p.51/5-25;52/1-5).
When considering the evidence from Trooper Rhone as well as the Appellants
9
grandfather Mack Woodard the Appellants argues that the state of Texas should be
obligated to follow Ohio law under the “full faith and credit clause” of the United
States Constitution. In determining when an investigative stop is unreasonably pre-
textual, the proper inquiry is not whether the officer could validly have made the
stop but whether the officer under the same circumstances a reasonable officer
would have made the stop in the absence of an invalid purpose. United States v.
Smith, 799 F2d 704, 708( 11th Cir. 1986).When the testimony and reasoning of
trooper Rhone is considered in its entirety the stop is and was pretextual and thus
unreasonable.
The State cites the doctrine laid down in Maryland v. Pringle, 540 U.S.
371(2003) that espoused the objective view of the “totality of the circumstances”
when viewing the circumstances of a law enforcement officer when making an
arrest.. This is a good step in evaluating the circumstances of the instant case. Next
the state lays out the doctrine of reasonable suspicion “that criminal activity will
occur shortly. Garcia v. State, 43 S.W. 3d 529, 530.
These two cases place a burden on the state that does not seem to be met with
respect to the facts of the case at bar.
We look at the two reasons stated by Trooper Rhone for the justification for
the stop of the Appellants vehicle. Trooper Rhone testified that Appellant was
following to close.(RR/8 p. 12, lines 5-17 and 55-66). Interstate 30 through Hunt
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County is very congested and vehicles stack up close including trucks and this
situation could be aggravated by the truck traffic passing each other and cars lined
up trying to get through. Trooper Rhone could stop nine out of 10 vehicles for
something because of the congested mess at times. Ford v. State, supra. told us that
a statement of conclusion such as following too closely does not justify a stop
without more.
The next prong for the justification of the stop by Trooper Rhone was the
partial cover of the license plate. Trooper Rhone did not size the Appellants license
plate after the stop (RR8/ p.66 lines 21-22).
Appellant begs the court’s indulgence but will again reiterate the Ohio Revised
Statutes 4501; 4503; 19-22; 4513:02 that covers the situation with respect to where
the Appellants vehicle was bought, registered and titled. This state does not
preclude a partial covering of the plate by a license plate cover. Every state gives
full faith and credit to sister states vehicle license laws because there is such a
variance from state to state. As set of above the buyer of the appellants vehicle his
grandfather testified that the cover and plate came that way from the dealer.(RR8/p.
51 lines 5-25 and p. 52 lines 1-5).
Trooper Rhone admitted that even thought Texas requires a front license plate
may sates do not and he does not pull such vehicles over when they do not display a
11
front plate, thus giving full faith and credit to these sister state’s license plate
laws.(RR8/ p. 74 lines 11-15; p. 75 lines 1-25 and p. 76 lines 1-13).
As experienced and good a law enforcement officer is as Trooper Rhone is,
these facts would not seem to justify a stop under the facts he laid out on Interstate
30 in Hunt County under both Pringle and Garcia, supra.
The search for contraband after the stop began with the observations laid out
by the state in their brief. Trooper Rhone and his experience with the cleanliness
and smell of freshness vehicles as applied to the Appellants vehicle. (RR8/ p. 12,
lines 5-17 and p 18, lines 2-16)
Suppose there were two elderly gentlemen with gray hair travelling on
Interstate 30 in Hunt County, Texas with out of state plates and the vehicle was
extremely clean and smelled of air freshness would Trooper Rhone have drawn the
same suspicions as he set out in his testimony (RR8/ p. 10, lines 12-19). Saying
further Appellant would show that trooper Rhone testified that the subject vehicle
was brand new (RR8/ p.16 lines 6-10).Brand new vehicles are clean and have
freshners.
The Appellant notes that there was no narcotics found on the person of
Appellant or other occupant of Appellants vehicle on in the passenger compartment
but the contraband that was found under the air intake filter cover that I under the
hood in the engine compartment.(RR8/ p. 33 line 25 and p. 34 line 1.)
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VII.
Conclusion and Prayer
For the reasons stated in the Appellants Brief the Appellant requests this Court to
REVERSE the conviction and sentence of the defendant Brian Woodard and order
an acquittal or in the alternative remand the case to the trial court for a new trial.
Respectfully submitted,
By:/s/Charles E. Perry
1101 Main Street
Commerce, Texas 75428
State Bar No. 15799700
Tel:903-886-0774
Fax:903-886-2043
CERTIFICATE OF COMPLIANCE WITH T.R.A.P.9.4(1)(3)
Relying on Microsoft Word count feature used to create the Reply Brief of the
Appellant, I certify that the number of words contained in this brief is 3505 and the
typeface used is 14 font.
Certificate of Service
nd
I certify on the 22 day of July, 2015, a true and correct copy of the foregoing was
delivered by email and to counsel for the state of Texas, Hunt County District
Attorney’s Office at the Hunt County Courthouse located at 2500 Lee Street in
Greenville, Hunt County, Texas by Charles E. Perry, Counsel for the defendant
Brian Woodard.
/s/ Charles E. Perry
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