ACCEPTED
04-16-00658-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/16/2017 10:51:26 AM
KEITH HOTTLE
CLERK
NOS. 04-16-00658-CR & 04-16-00659-CR
IN THE COURT OF APPEALS FOR THE FILED IN
4th COURT OF APPEALS
FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
SAN ANTONIO, TEXAS 03/16/2017 10:51:26 AM
______________________________ KEITH E. HOTTLE
Clerk
THE STATE OF TEXAS,
Appellant
v.
RUBEN RODRIGUEZ,
Appellee
______________________________
ON APPEAL FROM THE 399th JUDICIAL DISTRICT COURT
BEXAR COUNTY, TEXAS
CAUSE NOS. 2015-CR10288 & 2015-CR-10289
______________________________
REPLY BRIEF FOR THE STATE
______________________________
NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
LAURA E. DURBIN
Assistant Criminal District Attorney
Bexar County, Texas
Paul Elizondo Tower
101 W. Nueva Street
San Antonio, Texas 78205
Phone: (210) 335-2411 – Laura.Durbin@bexar.org
Attorneys for the State of Texas
State Bar No. 24068556
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................ iii
STATE’S REPLY ...........................................................................................................1
The officer’s subjective intent is irrelevant .....................................................1
The record supports the officer’s reasonable suspicion .................................2
PRAYER FOR RELIEF ....................................................................................................4
CERTIFICATE OF COMPLIANCE ....................................................................................5
CERTIFICATE OF SERVICE ............................................................................................5
ii
TABLE OF AUTHORITIES
Cases
Ford v. State,
158 S.W.3d 488 (Tex. Crim. App. 2005) ...............................................................1
Jaganathan v. State,
479 S.W.3d 244 (Tex. Crim. App. 2015) ..............................................................3
Statutes
TEX. TRANS. CODE ANN. §551.103 ............................................................................2
TEX. TRANS. CODE ANN. §552.006 ............................................................................2
Rules
TEX. R. APP. P. 9.4 .....................................................................................................5
TEX. R. APP. P. 38.3 ...................................................................................................1
iii
TO THE HONORABLE COURT OF APPEALS FOR THE FOURTH
DISTRICT OF TEXAS:
Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar
County, Texas, and files this reply brief for the State pursuant to Texas Rules of
Appellate Procedure 38.3.
STATE’S REPLY
The officer’s subjective intent is irrelevant
An officer executes a lawful temporary detention when he has reasonable
suspicion. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The test
for reasonable suspicion is an objective one based solely on whether there is an
objective basis for the detention. The officer’s subjective intent is not relevant.
The officer viewed Rodriguez walking with is bike against oncoming traffic. Two
transportation statutes control this conduct:
Sec. 551.103. OPERATION ON ROADWAY. (a) Except as provided by
Subsection (b), a person operating a bicycle on a roadway who is moving
slower than the other traffic on the roadway shall ride as near as practicable
to the right curb or edge of the roadway, unless:
(1) the person is passing another vehicle moving in the same direction;
(2) the person is preparing to turn left at an intersection or onto a private
road or driveway;
(3) a condition on or of the roadway, including a fixed or moving object,
parked or moving vehicle, pedestrian, animal, or surface hazard prevents
the person from safely riding next to the right curb or edge of the roadway;
or
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(4) the person is operating a bicycle in an outside lane that is:
(A) less than 14 feet in width and does not have a designated bicycle
lane adjacent to that lane; or
(B) too narrow for a bicycle and a motor vehicle to safely travel side
by side.
TEX. TRANS. CODE ANN. §551.103
Sec. 552.006. USE OF SIDEWALK. (a) A pedestrian may not walk along
and on a roadway if an adjacent sidewalk is provided and is accessible to the
pedestrian.
TEX. TRANS. CODE ANN. §552.006
The record supports the officer’s reasonable suspicion
Rodriguez argues the officer changed his reasoning to detain multiple times
during the motion to suppress.1 Under the reasonable suspicion standard as
discussed, the officer’s subjective reasoning for the detention is not a factor.
Rather, the court considers the objective basis for the detention. The record
established Rodriguez was walking and pushing his bicycle in the street against
traffic. There was an adjacent sidewalk.
First, under Section 551.103, if Rodriguez were in fact operating a bicycle,
he was not as near at practicable to the curb. Second, if Rodriguez was a
1
The State agrees with Rodriguez that during the suppression hearing, Officer Irving’s reasoning
for the stop changed; however, as mentioned, his reasoning is not relevant to whether or not the
record reflects the officer possessed reasonable suspicion to detain Rodriguez. Officer Irving
first testified that he stopped Rodriguez because he was a pedestrian in the roadway. (RR 8). On
cross-examination, Rodriguez questioned Officer Irving about the San Antonio municipal code
provision which disallows bicycles on sidewalks. (RR 15-16). On re-direct, Officer Irving
testified the two were in violation of Transportation Code Section 551.103. (RR 18).
2
pedestrian, under Section 552.006 of the Transportation, Rodriguez was not
walking along the adjacent sidewalk. The court’s determination that Rodriguez’s
actions were “more correct” was not proper. The State does not dispute
Rodriguez may have had justification for his conduct. However, the question
before the trial court was whether the officer had reasonable suspicion to detain
Rodriguez for a traffic violation, not whether Rodriguez was guilty of a traffic
violation. See Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015)
(holding potential justifications for appellant’s failure to move immediately from
left lane did not negate the reasonable suspicion that an offense occurred).
“There mere possibility that an act is justified will not negate reasonable
suspicion.” Rodriguez was walking with his bike against traffic. The officer had
reasonable suspicion to detain Rodriguez for a violation under 551.103 or
552.006.
3
PRAYER FOR RELIEF
The State prays that this Court will reverse the trial court’s ruling.
Respectfully submitted,
NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
/s/ Laura E. Durbin
______________________________
LAURA E. DURBIN
Assistant Criminal District Attorney
Bexar County, Texas
101 West Nueva, 3rd Floor
San Antonio, Texas 78204
(210) 335-2418
Laura.Durbin@bexar.org
State Bar No. 24068556
(On Appeal)
Attorneys for the State
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CERTIFICATE OF COMPLIANCE
I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure
that this document contains 613 words.
/s/ Laura E. Durbin
_____________________________
LAURA E. DURBIN
CERTIFICATE OF SERVICE
I, Laura Durbin, Assistant Criminal District Attorney, hereby certify that a
true and correct copy of the above and foregoing reply brief was served electronic
service to Oscar Cantu, Counsel for Ruben Rodriguez, on the 16th day of March,
2017.
/s/ Laura E. Durbin
_____________________________
LAURA E. DURBIN
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