PD-0072-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/24/2015 2:47:47 PM
July 24, 2015 Accepted 7/24/2015 4:14:54 PM
ABEL ACOSTA
CLERK
No. PD-0072-15
__________________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS
__________________________________________________________________________
JAMES LEMING
Appellant,
v.
THE STATE OF TEXAS
__________________________________________________________________________
CORRECTED APPELLANT’S RESPONSE TO STATE’S BRIEF
__________________________________________________________________________
Clement Dunn
State Bar No. 06249300
140 East Tyler, Suite 240
Longview, Texas 75601
Telephone: 903-753-7071
Fax: 903-753-8783
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
Appellant certifies that the following is a complete list of all parties to the trial
court’s judgment and the names and addresses of their trial and appellate counsel.
1. Appellant: James Leming
2. Appellant’s Trial Counsel: Clement Dunn
Attorney at Law
140 E. Tyler Street, Suite 240
Longview, TX 75601
TSB No. 06249300
3. Appellant’s Counsel on Appeal: Clement Dunn
Attorney at Law
140 E. Tyler Street, Suite 240
Longview, TX 75601
TSB No. 06249300
4. Attorney for the State: Zan Brown
Assistant District Attorney, Gregg County
101 East Methvin St., Suite 333
Longview, Texas 75601
TSB No. 03205900
Lisa McMinn
State Prosecuting Attorney
PO Box 13046
Austin, TX 78711-3046
TSB No. 13803300
I.
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
GROUND FOR REVIEW NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUND FOR REVIEW NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GROUND FOR REVIEW NUMBER THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ii
INDEX OF AUTHORITIES
Cases
Hernandez v. State, 983 S.W. 2d 867(Tex. App.–Austin 1998, no writ history). . . . . . . . . . 4
Atkinson v. State, 848 S.W. 2d 813, 815(Tex. App.–Houston(14th Dist.)1993, writ ref’d) . 4
Fowler v. State, 266 S.W. 3d 498(Tex. App–FortWorth 2008, writ ref’d). . . . . . . . . . . . . . . 4
Aviles v. State, 23 S.W. 3d 74,77(Tex. App.–Houston(14th District)2000, pet. Ref’d). . . . . 4
State v. Cerny, S.W. 3d 796,800(Tex. App.–Corpus Christi 2000, no pet.). . . . . . . . . . . . . . 4
Ehrhart v. State, 9 S.W. 3d 929,930(Tex. App–Beaumont 2000). . . . . . . . . . . . . . . . . . . . . . 4
Bass v. State, 64 S.W. 3d 646,651(Tex. App. –Texarkana 2001, pet. ref’d).. . . . . . . . . . . . . 4
Navarette v. California, 134 S. Ct. 1683(2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Illinois v. Gates, 462 U.S. 2d3(1983)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rachel v. State, 917 S.W. 2d 799, 809 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . 6
Wright v. State, 7 S.W. 3d 148, 151 (Tex. Crim. App. 1911). . . . . . . . . . . . . . . . . . . . . . . . . 9
Statutes and Codes
Section 12.42(a), Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 545.060(a), Texas Transportation Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Constitutional Provisions
Article 37.07, Section 3(a)(1), V.A.C.C.P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iii
NO. PD-0072-15
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
JAMES LEMING Appellant
V.
THE STATE OF TEXAS Appellee
*****
CORRECTED APPELLANT’S RESPONSE TO STATE’S BRIEF
*****
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes Now the Appellant, by and through his attorney, Clement Dunn and respectfully
submits the following in Corrected Response to the State’s Brief on Petition for Discretionary
Review.
STATEMENT OF FACTS
Offense: Driving While Intoxicated Third or More
Verdict: Guilty; Ten (10) years confinement - Texas Department of Criminal Justice -
Institutional Division
Date of Verdict: October 14, 2013
Trial Court: 124th District Court, Gregg County, Texas.
This case involves a prosecution for Driving While Intoxicated-Subsequent Offense;
Repetition of a Felony. R.R.4, at 6. This constitutes a second degree felony. Id.; see also:
Section 12.42(a), Texas Penal Code. The Trial Court conducted a hearing on the Appellant’s
Motion to Suppress on December 17, 2012. R.R. 2. After the Trial Court overruled the
Appellant’s Motion to Suppress, on January 13, 2013, C.R., at 13, the Appellant entered a plea
Appellant’s Response to State’s Brief, LEMING 1
of guilty to the Trial Court. R.R.4. This occurred as an “open plea,” without a plea agreement,
and, following a hearing on sentencing, the Trial Court imposed a sentence of ten years’
confinement. R.R.6, at 48. The Trial Court sentenced the Appellant on October 14, 2013. R.R.7.
STATE’S GROUND FOR REVIEW NUMBER ONE
SUMMARY OF THE ARGUMENT
The State’s proposed interpretation of Section 545.060(a), Texas Transportation Code, runs
afoul of both logic and law. The Court of Appeals has correctly interpreted this statute.
ARGUMENT
Section 545.060(a), Texas Transportation Code, provides:
Sec. 545.060. DRIVING ON ROADWAY LANED FOR TRAFFIC.
(a) An operator on a roadway divided into two or more clearly marked lanes
for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and
(2) may not move from the lane unless that movement can be made
safely.
The State, in its Brief, asserts that this statute comprises two requirements, “that a driver
remain in one lane if it is practical to do so,” and “that any departure from the lane be done
safely.” State’s Brief, at 3. The State avers: “Failure to abide by either provision is a
violation.” Id.
This reading of the statute leads to illogical ends. The State concludes, “When
subsections (1) and (2) are read together, the statute requires a driver to remain entirely in
a single lane as nearly as is sensible or reasonable to do so but, if it is reasonable or sensible
to deviate, the operator must do so safely.” State’s Brief, at 7. Examples of “sensible” or
“reasonable” deviation the State suggests would be avoidance of turtles, potholes, and
bicycles. In the case of a “slow-moving bicycle,” the State asserts: “Under those
circumstances, it is reasonable (or practical) to pass, by either leaving the lane entirely or
Appellant’s Response to State’s Brief, LEMING 2
moving partially into another lane until the pass is completed.” Id.
The State’s interpretation of Section 545.060(a)(1) would require a driver to stay in
a single lane unless it becomes “impractical” to do so. Besides departing significantly from
the plain language of the statute, this reading leads to results at odds with law and logic alike.
This interpretation would also lend vagueness and ambiguity to an otherwise straightforward
statute.
The law contains no per se, or “across the board,” prohibition of a driver changing
lanes. A prudent, reasonable, safe driver may change lanes for innumerable reasons even in
the course of a single journey of only a few minutes in today’s urban traffic. These may
include passing slower cars, yielding to faster cars, keeping a safe distance from other
vehicles ( into an open lane, for instance, to avoid following too closely), yielding to
oncoming traffic, leaving additional space between one’s own vehicle and wide loads or
trucks that fill an entire lane, improving one’s visibility, getting in the proper lane for an exit
that may still be some distance ahead. This list could go on and on–as does the flow of traffic
on the streets and highways of Texas, many of which rank as some of the most heavily
traveled in the nation. Yet, the State’s argument would confine the driver to a single
lane–unless this became “impractical.” Every driver changing lanes under this interpretation
would bear a burden of explaining the “impracticality” that necessitated the change of lanes.1
The State’s interpretation of Article 545.060(a)(1) also leads to ambiguity. What
standard would determine when the failure to drive “as nearly as practical entirely within a
single lane” fell within the realm of the “sensible” or “reasonable?” From whose perspective
would this be assessed or analyzed? A hypothetical “reasonable” driver in those
circumstances, or that driver in particular? Avoiding the glare of the sun, the exhaust from
1
The State’s view would require an objective, identifiable “impracticality” as a condition
precedent for any deviation or change from a single lane–even if completely safe and regardless
of the degree of the deviation or change.
Appellant’s Response to State’s Brief, LEMING 3
the vehicle in front, the traffic from the mall ahead–which of these are “reasons” to change
lanes that, as has been queried in Fourth Amendment jurisprudence, society is proposed to
recognize as reasonable? What begins as ambiguity leads quickly to absurdity and vagueness.
Under the State’s interpretation of this statute, probable cause would exist for law
enforcement to stop a driver for leaving “a single lane.”–either completely or
partially–simply because it was “practical” not to have done so.2
In contrast with the State’s approach, the appellate judiciary in Texas has consistently
and logically reached a different conclusion. Section 545.060(a), according to the
jurisprudence that has developed over a period of years creates one offense: moving out of
a marked lane when it is not safe to do so. See, e.g., Hernandez v. State, 983 S.W. 2d
867(Tex. App.–Austin 1998, no writ history); Atkinson v. State, 848 S.W. 2d 813, 815(Tex.
App.–Houston(14th Dist.)1993, writ ref’d); Fowler v. State, 266 S.W. 3d 498(Tex.
App–FortWorth 2008, writ ref’d); Aviles v. State, 23 S.W. 3d 74,77(Tex.
App.–Houston(14th District)2000, pet. Ref’d); State v. Cerny, S.W. 3d 796,800(Tex.
App.–Corpus Christi 2000, no pet.); Ehrhart v. State, 9 S.W. 3d 929,930(Tex.
App–Beaumont 2000); and Bass v. State, 64 S.W. 3d 646,651(Tex. App. –Texarkana 2001,
pet. ref’d). In each of these cases the appellate courts arrived at conclusions consistent with
the interpretation of this statute set forth above: a violation occurs only by a driver moving
out of a marked lane when it is not safe to do so.
2
To the degree the State wants to infer a legislative intent re swerving, straddling, etc.,
other statutes furnish a much more direct and effective set of tools: statutes proscribing reckless
driving, failing to yield right of way, and rules regarding turns represent but a few of many
examples.
Appellant’s Response to State’s Brief, LEMING 4
STATE’S GROUND FOR REVIEW NUMBER TWO
SUMMARY OF THE ARGUMENT
The telephone call mentioned at the suppression hearing provided an insufficient basis for
the stop.
ARGUMENT
The Court of Appeals correctly found that the telephone call the State mentioned at the
hearing on the Appellant’s motion to suppress did not involve “anyone more believable than
an anonymous caller.” Opinion, at 8. The Court of Appeals correctly observed:
Although the State’s questioning of Gilow and its closing argument
at trial asserted that the caller gave his name and contact information,
that information (other than the name “Arliss”) was not developed or
presented at the suppression hearing. There was no evidence
presented that would have given Gilow any reason to attribute
credibility to the caller.
The Court of Appeals observed: “A tip from an anonymous caller, standing alone, rarely
supplies reasonable suspicion for a stop because it lacks “sufficient indicia of reliability.”
Opinion, at 8 (citations omitted).
Yet, the State asserts this “tip” contained some indicia of reliability, as found in the
United States Supreme Court’s opinion in Navarette v. California, 134 S. Ct. 1683(2014),
in which an anonymous 911 caller identified the make, license plate, and location of a truck
that had nearly run the caller off the road. See: State’s Brief, at 10. The factors present in
Navarette, however, become notably absent when compared to the instant case.
The report in Navarette involved “(An informant’s) explicit and detailed description
of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles
his tip to greater weight than might otherwise be the case.” State’s Brief, at 10, citing
Navarette, 134 S. Ct. At 1689, quoting Illinois v. Gates, 462 U.S. 2d3(1983). The caller and
Appellant’s Response to State’s Brief, LEMING 5
the “information” in the instant case differ markedly from this. In this case, the Appellant’s
vehicle was traveling on a city street in plain and public view. No dramatic “wrongdoing”
of the kind at issue in Navarette had occurred; none had been alleged or reported from any
source. Instead, when the officer did locate the car the Appellant was driving, nothing
observed involved any violation of law–no “wrongdoing.” Hence, this most critical aspect
of the “tip” was not corroborated..
In the absence of “contemporaneous reports of criminal activity made under the stress
of excitement,” State’s Brief, at 10, a tip loses these indicia of credibility. Nothing in the
record indicates the caller acted under the “stress of excitement” arising from “criminal
activity.” As just noted, no observations corroborated or found any violation of law
associated with the reported “swerving.” This was all the caller alleged–the record contains
no mention of anything approaching a stressful event, criminal or otherwise.
The State emphasizes that the call in the instant case was a “911" call:
“ And fourth, use of the 911 system provided further proof of the caller’s veracity.” State’s
Brief, at 10. From this the State argues that the “tip” in the instant case resembles the call at
issue in Navarette, supra. State’s Brief, at 10-11. The State also draws attention to this
“reliable 911 report” in urging its third ground of error (discussed infra)–that “reasonable
suspicion” justified the stop–asserting, as here, that a “911" call carries inherent reliability.
The Appellant respectfully submits: Nowhere does the record of the hearing on the
motion to suppress3 show that this “tip” came through a “911" call, or the “911 system.” In
fact, the record of the hearing on the motion to suppress does not clearly establish how the
“tip” came to the police:
3
As the Court of Appeals noted in the instant case: “In reviewing the trial court’s ruling
on the motion to suppress, we will only consider evidence before the trial court at the suppression
hearing.” Opinion, at 2, n. 2, citing Rachel v. State, 917 S.W. 2d 799, 809 (Tex. Crim. App.
1996).
Appellant’s Response to State’s Brief, LEMING 6
Q. All right. I want to talk about the circumstances surrounding
that stop. How were you first dispatched to contact Mr.
Leming?
A. I was dispatched - - the call came in that a - - the reporting
party was behind the vehicle and the vehicle was swerving
from side to side. And it was called in this way.
Q. Did the reporting party give their name and phone number?
A. Yes, they did.
Q. Okay. And what is that reporting party’s name?
A. Arliss.
Q. Is that A-R-L-I-S-S?
A. Yes.
Q. Okay. At this point, you have a reporting party who says
there’s a car swerving. Did you get a description of the car?
A. Yes.
Q. And what was that description?
A. An older-style white jeep.
Q. Did you then proceed to the location where that car was–
A. Yes. The RP was continuously following. And I worked my
way up to McCann and te Loop. And when I turned on
McCann, I advised the reporting party to back off, and I went
behind the vehicle and started my observation.
R.R. 2, at 7. This record does not even specify that the “report” came over a telephone at all.
When the officer describes “the call came in,” and “it was called in that way,” he never
clarifies whether he is referring to a call into the police department or the call from the
dispatcher to the officer. Never does the officer articulate how any call into the department
was made or received. No other evidence at the hearing offered any explanation or details
of the means of the making or receiving of this “call.” At a minimum, nothing showed that
this was a “911" call.
In the absence of any showing of a “911" call, and where the observation (including
the video) failed to corroborate the information from “the tip,” this scenario differs greatly
from that in Navarette, supra. This “tip” did not justify the stop. The Court of Appeals
reached the correct conclusion. Opinion, at 8-9.
Appellant’s Response to State’s Brief, LEMING 7
STATE’S GROUND FOR REVIEW NUMBER THREE
SUMMARY OF THE ARGUMENT
The traffic stop in the instant case finds no justification in the jurisprudence of “reasonable
suspicion.”
ARGUMENT
In its third ground for review, the State seeks to justify the stop in the instant case on
the basis of “reasonable suspicion of DWI.” State’s Brief, at 11-15. Here, the State focuses
primarily on the assertion that the Appellant was “weaving” as he drove. The Appellant
respectfully submits that this provided no basis for a stop of the vehicle.
As the Court of Appeals correctly observed, no evidence of the Appellant’s alleged
“swerving” amounted to a traffic violation. Opinion, at 9 (“No traffic violation having
occurred...”). The State, in the absence of a traffic violation, nonetheless asserts that “Arliss’
report and the officer’s observations was sufficient to provide reasonable suspicion of driving
while intoxicated.” State’s Brief, at 11-12. 4
The State argues that “weaving” amounts to “something so obvious and
commonplace” that the expertise of an officer becomes superfluous in both its detection and
attribution of significance to it. State’s Brief, at 12-13. Citing cases that allow a “lay witness”
to be competent to give an opinion about “intoxication”–that is, simply whether or not a
person is “intoxicated,” without the involvement of a vehicle at all–the State argues that a
4
Significantly, the State emphasizes the “tip” as a basis for reasonable suspicion.
Throughout its Brief, the State refers to this “tip” as a “911" call, and repeatedly asserts that this
adds to its reliability. As the Appellant has demonstrated, there exists no basis to classify tis “tip”
as coming via “911."
Appellant’s Response to State’s Brief, LEMING 8
“lay witness” can, by analogy, glean from seeing a vehicle “weaving” that the driver is
intoxicated. Id., at 13. But in the instant case the officer could not and did not corroborate
what the “lay witness” had allegedly reported: the “swerving from side to side” in fact
appeared as only a “drift” or “movement,” primarily within its own lane, not amounting to
a violation of any traffic law. Opinion, at 9.
The State next mentions “time of day” and “location near bars” as factors in
developing “reasonable suspicion,” i.e., “to find that bad driving allows reasonable suspicion
of intoxication.” State’s Brief, at 13. These factors have no relevance to the instant case,
however. The Appellant was stopped “about 2:00pm,” “in the middle of Longview, Texas,
on a well-traveled thoroughfare.” Opinion, at 2,13. This differs considerably from “Austin’s
Sixth Street bar district late at night,” which the State inserts into its argument. State’s Brief,
at 14. At a minimum, these factors of time and location add nothing–if anything, subtract
significantly–from any calculation of reasonable suspicion in the instant case.
The Court of Appeals set out the known observations of the Appellant’s driving:
At most, the vehicle may have crossed the lane lines into the next
(inside) lane, but this happened when no other cars were in the
immediate vicinity. Gilow continued to follow and observe Leming
almost two more minutes after this initial observation. In that time,
although Leming truck is observed to drift or swerve within his lane
of traffic, we cannot say that this is an indication of distress. Although
Leming’s truck is observed to approach the curb on the right-hand
side of the lane of traffic, it is not observed being close to hitting or
riding up the curb. Also, Leming observes traffic laws by coming to
a complete stop at a stop light; there was nothing indicating distress
in that stop or the subsequent move forward with traffic.
Opinion, at 13. The Court of Appeals rejected the State’s argument that these facts could
justify the stop on the basis of “community care-taking.” Id., at 13-14.
In its initial Petition for Discretionary Review, the State explicitly stated it is not
challenging the Court of Appeals’ rejection of the State’s argument seeking to justify the stop
Appellant’s Response to State’s Brief, LEMING 9
on the basis of a “community care-taking” function on direct appeal. State’s Petition, at 4,
n. 1 (“The State does not challenge the Court of Appeals’ determination that community
care-taking was not shown.”) The Court of Appeals described this function: “As a part of his
duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a
reasonable person–given the totality of the circumstances–would believe is in need of help.”
Wright v. State, 7 S.W. 3d 148, 151 (Tex. Crim. App. 1911). Opinion, at 9. Since the
gravamen of intoxication is “impairment,” and since a visibly “impaired” person would be
“in need of help,” it becomes difficult to see how “reasonable suspicion” could justify the
stop when “community care-taking” could not. (Respectfully, this seem especially true given
the State’s rhetoric about the obviousness of intoxication generally. State’s Brief, at 12-13.)
Certainly, the facts addressed in the record fail to justify a stop, regardless of the theory
advanced.
PRAYER
The Appellant respectfully requests that this Honorable Court affirm the holding of
the Sixth Court of Appeals in this case.
Respectfully submitted,
___//ss//___Clement Dunn_____
State Bar No. 06249300
140 East Tyler, Suite 240
Longview, Texas 75601
Telephone: 903-753-7071
Fax: 903-753-8783
Appellant’s Response to State’s Brief, LEMING 10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Corrected Appellant’s Response
to State’s Brief was delivered to the Gregg County District Attorney’s Office, Gregg, Texas
on this 24th day of July 2015.
___//ss//___Clement Dunn_____
CERTIFICATE OF WORD COUNT
I hereby certify that a total of 3441 words are included in this Corrected Appellant’s
Response to State’s Brief.
___//ss//___Clement Dunn_____
Appellant’s Response to State’s Brief, LEMING 11