ACCEPTED
03-15-00065-CR
5928222
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/2/2015 4:46:07 PM
No. 03-15-00065-CR JEFFREY D. KYLE
CLERK
FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas
7/2/2015 4:46:07 PM
JEFFREY D. KYLE
Clerk
ELIZABETH BLACK,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On appeal from the County Court-at-Law Number Five,
Travis County, Texas
Trial Cause No. C-1-CR-13-217530
STATE'S BRIEF
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
GISELLE HORTON
ASSIST ANT TRAVIS COUNTY ATTORNEY
State Bar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate®traviscountytx.gov
July 2, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES ............................................ 111
STATEMENT OF THE CASE ............................................ 1
ISSUES PRESENTED ................................................. 1
BACKGROUND ..................................................... 2
SUMMARY OF THE ARGUMENT ....................................... 4
ARGUMENT
Reply Point: The trial court did not abuse its discretion in
overruling Black's motion to suppress the State's evidence ........ 5
1. Black's contentions on appeal ............................ 5
2. Properly viewed, the totality of the circumstances
shows that the detaining officer had reasonable
suspicion of criminal activity ............................. 7
3. Whether or not the barricades and signs were
properly placed is not a legitimate issue .................. 10
3.1. The matter of the signs' and barricades'
propriety is unpreserved .......................... 10
3.2. The evidence shows that Black knew of the
checkpoint but consciously disregarded it ........... 10
1
3.3. The barricades' and signs' alleged failure to
comply with a statutory definition and the
MUTCD is unrelated to the exclusionary rule's
purpose and therefore cannot trigger its application .. 11
3.4. Black has no standing to complain of the
barricades' and signs' placement ................... 14
PRAYER ......................................................... 14
CERTIFICATE OF COMPLIANCE ....................................... 15
CERTIFICATE OF SERVICE ........................................... 16
ii
INDEX OF AUTHORITIES
Statutes Page
TEX. CODE CRIM. P. art. 38.23(a)
(West 2005) ................................................ 11
TEX. PENAL CODE§ 49.04(a), (d)
(West. Supp. 2014) ........................................... 1
TEX. TRANSP. CODE§ 472.022(a)
(West 2013) ................................................. 9
TEX. TRANSP. CODE§ 472.022(b)
(West 2013) ................................................. 5
TEX. TRANSP. CODE§ 544.004(a)
(West 2011) ................................................. 9
Rule
TEX. R. APP. P. 33.1(a)(1) ........................................... 10
Cases
Carroll v. State, 911 S.W.2d 210
(Tex. App.-Austin 1995, no pet.) ....................... 11, 12, 13
Chavez v. State, 9 S.W.3d 817
(Tex. Crim. App. 2000) .................................... 12, 13
Curry v. State, 831 S.W.2d 485
(Tex. App.-Houston [14th Dist.] 1992, pet. ref'd) ............... 12
Derichsweiler v. State, 348 S.W.3d 905
(Tex. Crim. App. 2011) ........................................ 9
Drago v. State, 553 S.W.2d 375
(Tex. Crim. App. 1977) ....................................... 12
Fisher v. State, 839 S.W.2d 463
(Tex. App.-Dallas 1992, no pet.) ............................. 12
Jimenez v. State, 838 S.W.2d 661
(Tex. App.-Houston [1st Dist.] 1992, no pet.) .................. 12
iii
Lane v. State, 951 S.W.2d 242
(Tex. App.-Austin 1997, no pet.) ............................. 12
Lopez v. State, 817 S.W.2d 150
(Tex. App.-El Paso 1991, no pet.) ............................. 12
Lujan v. State, 331 S.W.3d 768
(Tex. Crim. App. 2011) ........................................ 7
Martinez v. State, 348 S.W.3d 919
(Tex. Crim. App. 2011) ........................................ 7
New York v. Harris, 495 U.S. 14
(1990) ..................................................... 12
Reed v. State, 818 S.W.2d 569
(Tex. App.-Beaumont 1991, pet. ref'd) ........................ 12
Reeves v. State, 969 S.W.2d 471
(Tex. App.- Waco 1998, pet. ref'd) ............................ 12
Roy v. State, 608 S.W.2d 645
(Tex. Crim. App. 1980) ....................................... 12
State v. Garcia-Cantu, 253 S.W.3d 236
(Tex. Crim. App. 2008) ........................................ 7
State v. Molegraaf, 86 S.W.3d 311
(Tex. App.-Austin 2002, no pet.) ....................... 12, 13, 14
Watson v. State, 10 S.W.3d 782
(Tex. App.-Austin 2000, no pet.) ............................. 12
Other Source
40 GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE 321, § 7.25
(3rd ed. 2011) ............................................... 13
IV
STATEMENT OF THE CASE
The defense appeals a pre-trial suppression ruling in a DWI case.
Black was charged by information with operating a motor vehicle with a
blood-alcohol concentration greater than .15, a Class A misdemeanor
alleged to have been committed on October 11, 2013. CR 9; TEX. PENAL
CODE§ 49.04(a), (d) (West. Supp. 2014). On January 13, 2015, after an
evidentiary hearing, the trial court overruled her supplemental
suppression motion. CR 35. That same day, Black entered a negotiated plea
of no contest, and was sentenced to eight days in jail and a $100.00 fine.
CR 37-38,40-41.
Black gave notice of appeal ten days later, on January 23rd. CR 43.
ISSUES PRESENTED
Black litigated only the initial detention's lawfulness, which occurred
after Black drove her car through a barricaded traffic-control checkpoint
and onto a street that was closed to the general public at the time. Was the
stop unlawful-and the ruling denying suppression relief therefore an
abuse of the court's discretion- because
1
(1) Black could not have driven "around" a barricade when the
barricades did not completely block the lane;
(2) the prosecution failed to prove that the barricades were put there
by a person or entity named in the statutory definition of "barricade"; and
(3) the signs advising of the road's closure may not have been
"sufficiently legible" and may not have complied with the Texas Manual
on Uniform Traffic Control Devices (MUTCD)?
BACKGROUND
Barton Springs Road in Austin was closed to through traffic early
that October morning; only people affiliated with the Austin City Limits
music festival were allowed to pass through the checkpoint. 2 RR 7, 9, 25.
A mobile sign with flashing lights advised that "northbound" was shut
down to through traffic. 2 RR 6-7. A fixed sign that spanned almost half
the roadway also advised that "Barton Springs Road to close through
Zilker Park. Friday 12 a.m. until Monday 3 a.m." 2 RR 7, 22. White plastic
barricades, barrels, and traffic cones were set up to funnel traffic to a single
lane, and to direct the general motoring public into aU-turn. 2 RR 6, 8.
2
Austin police Officer Domingo Rodriguez was parked behind the
barricades with his overhead lights on so that he could check the
credentials of vehicles coming through. 2 RR 8. Unauthorized vehicles
were instructed to make the U-turn; authorized buses, motor coaches, and
eighteen-wheelers that were connected with the music festival in Zilker
Park were allowed through. 2 RR 5-6, 9.
Around three o'clock in the morning on Friday, Officer Rodriguez
saw a passenger vehicle approaching so rapidly that he knew it would not
stop at the checkpoint. 2 RR 9. He yelled, "Hey!" 2 RR 13. The dark-colored
SUV kept going. Rodriguez took off after it and detained the driver, who
he later identified as Black. 2 RR 10-11.
Black told Rodriguez that she had seen the barricade but was trying
to get home. 2 RR 12; 3 RR State's Exhibit #2 @ 03:00:30. She also admitted
that she should have stopped when she heard Rodriguez call out to her. 3
RR State's Exhibit #1 at 03:05:20.
3
The trial court denied suppression relief, stating,
I truly believe, with the amount of signage out there, and with
the police presence, two patrol cars, and that sign, that a
reasonable person would know better than to approach that
intersection and drive through. I just- I cannot think of how it
could be reasonable to think that you could drive through that
area. I mean, they've got the barricades here and - ... [A]
reasonable person would not drive through that intersection. I
just don't see it. Sorry.
2 RR 36. The trial court was not asked to make and did not make written
findings.
SUMMARY OF THE ARGUMENT
Black is asking the Court to view the evidence in the light most
favorable to the defense, and to speculate that the barricades and signs
failed to meet certain requirements. This misapplies the standard of review
and fails to view the record in the proper light. Properly viewed, the record
shows that Black saw the signs, knew that she was not permitted to simply
drive through the checkpoint, but did it anyway, even after hearing the
officer yell as she went past. This shows that she committed two specific
traffic violations under the Transportation Code.
4
Whether the signs and barricades were properly in place is
unpreserved, because Black never made this argument below.
Furthermore, the statutory definition of "barricade" and the Manual on
Uniform Traffic Control Devices
• are not "laws" whose alleged violation would trigger application of
the exclusionary rule; and
• do not confer standing on Black to complain of some perceived
impropriety.
ARGUMENT
Reply Point: The trial court did not abuse its discretion in
overruling Black's motion to suppress the State's evidence.
1. Black's contentions on appeal.
Black contends that the initial detention was illegal for chiefly two
reasons. First, she maintains that, because the record shows that no
barricade actually blocked her lane of travel, she did not drive "around" a
barricade and therefore could not have committed a traffic violation under
the statute criminalizing driving into barricaded areas. TEX. TRANSP. CODE
§ 472.022(b) (West 2013).
5
Second, she contends that the State failed to prove that the barrier
constituted a "barricade" under§ 472.022(e)(l) of the Transportation Code.
This provision defines a barricade as an obstruction that has been placed
on or across a road, street, or highway by the Texas Department of
Transportation, a state political subdivision, or a contractor or
subcontractor (Black's Brief, p. 12).
Third, Black acknowledges the rule that the Court may affirm on any
applicable theory that the record supports, such as Transportation Code§
544.004, which criminalizes the failure to obey a traffic-control device. She
nevertheless contends that the prosecution failed to prove that she
committed a violation under§ 544.004 because it did not show "whether
the sign was in a position where Appellant or a reasonable person would
have seen it" or otherwise complied with the requirements of the Manual
on Uniform Traffic Control Devices (MUTCD). According to Black, the
failure to obey a traffic-control device is only an offense if the device is
"sufficiently legible" to the driver. If the device doesn't comply with the
6
MUTCD, she contends, then it cannot be inferred that the driver
understood the device and committed an offense.
2. Properly viewed, the totality of the circumstances shows that the
detaining officer had reasonable suspicion of criminal activity.
Black's contentions misapply the standard of review and fail to view
the record in the proper light. Appellate courts review suppression rulings
for an abuse of discretion. Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim.
App. 2011 ). The Court views the evidence in the light most favorable to the
trial court's ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.
App. 2008). The winning side is afforded the "strongest legitimate view of
the evidence," as well as all reasonable inferences that can be derived from
it. Garcia-Cantu, 253 S.W.3d at 241. The reviewing court will affirm if the
record reasonably supports the trial court's ruling and it is correct on any
legal theory applicable to the case. Id. A trial court abuses its discretion
only when the ruling is outside the zone of reasonable disagreement.
Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).
7
The trial court acted well within its discretion to deny suppression
relief. The record shows that Black knew of the traffic checkpoint but consciously
disregarded it. Black ignores the parts of the officer's testimony and the
dashcam video that show that she knew that she was not to simply drive
through the traffic-control point. 2 RR 12; 3 RR State's Exhibit #2@ 03:00:30
and 03:05:20? State's Exhibit #2, the detaining officer's dash cam recording,
shows the signage in plain view. 3 RR State's Exhibit #2@ 02:59:09. It
shows Black telling the detaining officer that she went through the traffic-
control area checkpoint because she was "trying to get home." 3 RR State's
Exhibit #2 @03.00:30. The detaining officer testified to this, as well. 2 RR 12.
The videotape also shows Black telling the officer that she heard him yell
as she went through the barricade, and knew she should have stopped.
3 RR State's Exhibit #2 @03:05:20. This evidence alone shows that the
detention was lawful because she (1) failed to comply with a traffic-control
Although the prosecution intended to introduce only a portion of the
videotape of the stop, the entire exhibit was admitted at defense counsel's
insistence. 2 RR 12; 3 RR State's Exhibit #2.
8
device under Transportation Code§ 544.004(a), and (2) disobeyed the
instructions, signals, warnings, or markings of a warning sign under §
472.022(a). TEX. TRANSP. CODE§§ 472.022(a), 544.004(a) (West 2013 & 2011).
Additionally, signs told motorists that they were not to simply drive
through the checkpoint. 2 RR 7, 19, 22. Barricades and traffic cones were set
up to indicate "that people need to go this way to make the U-turn." 2 RR
6. Behind the barricades was a police officer's patrol car with its overhead
lights on. 2 RR 8. Viewing the totality of the circumstances in the light most
favorable to the ruling, the trial court properly concluded that the
detaining officer had reasonable suspicion to initiate a brief detention for
further investigation. Derichsweiler v. State, 348 S.W.3d 905, 914 (Tex. Crim.
App. 2011).
9
3. Whether or not the barricades and signs were properly placed is
not a legitimate issue.
3.1. The matter of the signs' and barricades' propriety is
unpreserved.
Black failed to preserve her contentions about the propriety of the
barricades and signs, because she did not make these arguments to the trial
court. TEX. R. APP. P. 33.l(a)(l).
Even if she had made the arguments, the trial court would have erred
to grant suppression relief on that basis, for the following reasons.
3.2. The evidence shows that Black knew of the checkpoint but
consciously disregarded it.
The County Attorney discusses this evidence on page eight of this
brief. Because of this evidence, no legitimate issue exists with respect to
whether Black knew that she was not permitted to drive through the
traffic-control point before she was detained.
10
3.3. The barricades' and signs' alleged failure to comply with a
statutory definition and the MUTCD is unrelated to the
exclusionary rule's purpose and therefore cannot trigger its
application.
Black appears to suggest for the first time that the State's evidence
was obtained "in violation of state law" under Article 38.23, because the
signs and barricades did not comply with the MUTCD and certain
requirements, such as the statutory definition of "barricade," which
requires that barricades be placed by certain entities or agents. Under the
Texas exclusionary rule, no evidence obtained by an officer in violation of
state law may be used in the trial of a criminal case. TEX. CODE CRIM. P. art.
38.23(a) (West 2005). But a violation of the "laws" that Black cites-even if
it had occurred- would not trigger the exclusionary rule's application.
Violation of just any "law" does not invoke Article 38.23. Carroll v.
State, 911 S.W.2d 210,221 (Tex. App.-Austin 1995, no pet.). Courts
uniformly hold that Article 38.23(a) may not be invoked for statutory
violations unrelated to the exclusionary statute's purpose. State v.
11
Molegraaf 86 S.W.3d 311,312-13 (Tex. App.-Austin 2002, no pet.).Z That
purpose is the same for both the Fourth Amendment's exclusionary rule
and Article 38.23: to protect a suspect's liberty interests against the
3
overzealousness of others in obtaining evidence to use against her; "to
4
deter unlawful actions which violate the rights of criminal suspects. "
[T]he fairest reading of [Article 38.23(a)] is that it must have
been intended to permit challenges to evidence on the basis
that the evidence was obtained in violation of a "law" that
serves to protect an individual's personal and property rights
2
See also Roy v. State, 608 S.W.2d 645, 651-52 (Tex. Crim. App. 1980); Watson
v. State, 10 S.W.3d 782, 784 (Tex. App.-Austin 2000, no pet.); Reeves v. State, 969
S.W.2d 471,486 (Tex. App.-Waco 1998, pet. ref'd); Lane v. State, 951 S.W.2d 242,
244 (Tex. App.-Austin 1997, no pet.); Carroll, 911 S.W.2d at 211; Fisher v. State,
839 S.W.2d 463,469 (Tex. App.-Dallas 1992, no pet.); Lopez v. State, 817 S.W.2d
150, 151 (Tex. App.- El Paso 1991, no pet.). See also New York v. Harris, 495 U.S.
14, 17 (1990) (the Fourth Amendment's exclusionary rule may not be invoked for
reasons unrelated to the exclusionary rule's purpose).
Chavez v. State, 9 S.W.3d 817, 822 (Tex. Crim. App. 2000).
4
Watson, 10 S.W.3d at 784; Carroll, 911 S.W.2d at 221.
Texas courts have often stated that the primary purpose of Article 38.23 is
to deter police activity that could not have been reasonably believed to be lawful
by officers engaging in the activity. Watson, 10 S.W.3d at 784 (citing Drago v. State,
553 S.W.2d 375, 378 (Tex. Crim. App. 1977)); Jimenez v. State, 838 S.W.2d 661, 665
(Tex. App.-Houston [1st Dist.] 1992, no pet.); Curry v. State, 831 S.W.2d 485, 487
(Tex. App.-Houston [14th Dist.] 1992, pet. ref'd); Reed v. State, 818 S.W.2d 569,
571 (Tex. App.- Beaumont 1991, pet. ref' d).
12
from infringement by others, whether those others are acting in
official capacities or not. "Laws" serving other functions, then,
would not be a sufficient predicate on which to base an article
38.23 objection to prosecution evidence.
40 GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE 321, § 7.25 (3rd
ed. 2011); see also Chavez, 9 S.W.3d at 822 (Price, J., concurring); Carroll, 911
S.W.2d at 221 ("It seems evident that the particular provision of the
Constitution or laws which is violated in obtaining evidence must exist for
the purpose of regulating the acquisition of evidence to be used in a
criminal case.").
The statutory definition of "barricade" and the MUTCD have
purposes so far removed from controlling the gathering of evidence for
prosecution that their violation-even if it had occurred-cannot trigger
Article 38.23. Molegraaf, 86 S.W.3d at 312. In Molegraaf, this Court reversed
the suppression order, holding that Transportation Code§ 542.203(a),
which regulates how and by whom traffic-control devices may be erected,
has nothing to do with the exclusionary rule's purpose. Id. at 313.
13
3.4. Black has no standing to complain of the barricades' and
signs' placement.
Similarly, the reasoning of this Court's Molegraaf opinion shows that
the statutory definition of "barricade" and the MUTCD were not intended
to confer rights or benefits on the public at large, or on persons who are the
subject of criminal investigations. See Molegraaf 86 S.W.3d at 312. Black
therefore lacks third-party standing to complain of some irregularity in the
barricades' and the signs' placement. Id.
PRAYER
On behalf of the State of Texas, the Travis County Attorney asks the
Court to overrule the point of error and affirm the judgment of conviction
for operating a motor vehicle while intoxicated.
Respectfully submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
14
ton
As sta Travis County Attorney
ar Number 10018000
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate@traviscountytx.gov
ATTORNEYS FOR THE STATE OF TEXAS
CERTIFICATE OF COMPLIANCE
Relying on Corel WordPerfect's word-count function, I certify that
this document complies with the word-count limitations of TEX. R. APP. P.
9.4. The document (counting all of its parts) contains 3167 words.
15
CERTIFICATE OF SERVICE
I certify that I have sent a complete and legible copy of this State's
Brief via electronic transmission, to Ms. Black's attorney of record, Mr.
Gene Anthes, at gene©GBAfirm.com, on or before July 7, 2015.
ton
t Travis County Attorney
16
Elizabeth Ann Black v. State
Combined Opinion