ACCEPTED
04-14-00814-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/11/2015 9:52:26 AM
KEITH HOTTLE
CLERK
N0.04-14-00814-CR
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS 5/11/2015 9:52:26 AM
FOR THE
KEITH E. HOTTLE
FOURTH COURT OF APPEALS DISTRICT Clerk
OF TEXAS
SAN ANTONIO, TEXAS
JACOB RANDALL SONGER,
Appellant,
v.
STATE OF TEXAS,
Appellee
Trial Court No. 13-272-CR
Appeal from the Kendall County Court at Law
of Kendall County, Texas
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED
Submitted by:
HAROLD J. DANFORD
Danford Law Firm
813 Barnett St.
Kerrville, TX 78028
State Bar No. 00783924
(830)257-4045 Office
(830)896-5250 Telefax
hdanford@ktc.com
Attorney for Appellant
TABLE OF CONTENTS
Table of Contents ..................................................................................................... i
Identity of Parties .................................................................................................... ii
Index of Authorities ............................................................................................... iii
Statement of Case ..................................................................................................... 1
Statement Regarding Oral Argument ...................................................................... 2
Issues Presented ........................................................................................................ 2
Appellant's Point of Error ................................................................... 2
Statement of Facts ......................................................................... 2,3,4
Appellant's Only Point of Error ................................................ .4,5,6,7,8,9
Conclusion and Prayer ...................................................................... 10
Certificate of Service ........................................................................ 11
IDENTITY OF THE PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a), the parties to this suit are as follows:
(1) Jacob Randall Songer, Appellant, 4911 C Bell Springs Road, Dripping
Springs, Texas 78620
(2) The State of Texas by and through the Kendall County Attorney's Office,
Donald Allee, Kendall County Attorney, who is Appellee and prosecuted
this case at trial.
The appellate attorneys are as follows:
(1) Jacob Randall Songer is represented by Harold J. Danford, Danford Law
Firm, 813 Barnett St, Kerrville, Texas 78028
(2) The State is represented by Donald Allee, Kendall County Attorney, 201
East San Antonio Street, Suite 306, Boerne, Texas 78006-2050.
ii
Index of Authorities
Argullez v. State, 409 S.W. 3d 657, 663-664 (Tex. Crim. App. 2013) ................................. 8
Derichsweiler v. State, 348 S.W. 3d 906, 916 (Tex. Crim. App. 2011) ................................ 5
Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375 (2000) ............................................... 8
Ford v. State, 158 S.W. 3d 488, 492 (Tex. Crim. App. 2005) ........................................... 5
Guzman v. State, 955 S.W. 2d 85, 88-89 (Tex. Crim. App. 1997) ..................................... .4
Martinez v. State, 348 S.W. 3d 919, 923 (Tex. Crim. App. 2011) ...................................... 7
Martinez v. State, 348 S.W. 3d 925 (Tex. Crim. App. 2011) ............................................ 9
Meeks v. State, 653 S.W. 2d 6, 12 (Tex. Crim. App. 1983) .............................................. 5
State v. Sailo, 910 S.W. 2d 184, 188 (Tex. App. Ft. Worth 1995 pet. ref d) .......................... 7
Wade v. State, 422 S.W. 3d 661, 669 (Tex. Crim. App. 2013) .......................................... 5
Wade v. State, 422 S.W. 3d 668 (Tex. Crim. App. 2013) ................................................ 5
U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 1881 (1980) ..................................... 7
U.S. Constitution 4th Amendment ........................................................................ .1,6
U.S. Constitution 5th Amendment ............................................................................ 1
U.S. Constitution 6th Amendment ............................................................................ 1
U.S. Constitution 14th Amendment ...................................................................... .... 1
Texas Constitution Article 1, Section 9 ................................................................... 1,6
Texas Code of Criminal Procedure Article 38.23 ...................................................... 1,6
iii
CAUSE NO. 04-14-00814-CR
JACOB RANDALL SONGER § IN THE COURT OF APPEALS
Appellant §
v. § FOURTH SUPREME
§ JUDICIAL DISTRICT
§
STATE OF TEXAS §
Appellee § SAN ANTONIO, TEXAS
STATEMENT OF CASE
Appellant Jacob Randall Songer was charged by Complaint and Information
with Driving While Intoxicated 1st Offense which allegedly took place on April 18,
2013 in Kendall County, Texas. On March 21, 2014, Appellant filed a Motion to
Suppress complaining the arresting officer lacked reasonable suspicion to stop
Appellant's vehicle in violation of Appellant's rights under the Fourth, Fifth, Sixth
and Fourteenth Amendments to the United States Constitution, Article 1, Section 9
ofthe Texas Constitution and under Article 38.23 ofthe Texas Code of Criminal
Procedure.
On April24, 2014, the Motion to Suppress filed by Appellant was heard by
the Trial Court and such Motion was denied. Appellant subsequently plead guilty
to said offense and was granted probation on November 4, 2014. Appellant
contends the Trial Court erred in denying the Motion to Suppress.
This Appeal then follows.
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STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 39.7, Appellant hereby requests oral argument.
ISSUES PRESENTED:
Appellant's Point of Error:
The Trial Court Erred by not granting Appellant's Motion to Suppress.
STATEMENT OF FACTS
The facts presented at the Motion to Suppress show that on April 18, 2013,
that Deputy Escalante of the Kendall County Sheriffs Office was dispatched to a
McDonald's Restaurant at the Love's Truck Stop in Comfort, Texas based on a
911 call whereby someone in the drive-through line allegedly hit the building
(Reporter's Record Vol. 1 p. 7-8).
Deputy Escalante testified that the Love's Truck Stop in a humongous place
with lots of business and is open 24 hours a day (RR. Vol. 1, p. 20). The 911 tape
was played for the Court and introduced into evidence. The caller from the 911
tape was only identified as someone named Mitch who was told by someone else
2
to call911. (RR. Vol. 1, p. 19). The 911 caller did not witness any ofthe alleged
activity of striking the building. It is interesting to note that the record does not
contain any evidence or testimony as to when this alleged activity of striking the
building took place. Further, the 911 call did not give a description of the vehicle
which allegedly hit the McDonald's building. (RR Vol. 1 p. 9 & 15).
Deputy Escalante testified that dispatch told him it was a white car that hit
the building. (RR Vol. 1 p. 9). However, under both direct and cross examination,
Deputy Escalante admits the 911 call was silent as to a description of the color of
the car (RR Vol. 1 p. 9 & 20). Through cross examination, it was brought out that
Deputy Escalante put in his report that the vehicle driven by Appellant was not
even white, but in fact was silver. (RR Vol. 1 p. 16).
Deputy Escalante further testified to other important facts:
1) When he arrived at the McDonald's he did not observe anything
out of the ordinary (RR Vol. 1 p. 11).
2) There was no damage to the McDonald's Building (RR. Vol1 p.
11& 19).
3) The Deputy did not know the how building was hit (RR Vol. 1 P.
17).
4) The Deputy did not know what time the building was hit (RR Vol.
1 p. 18).
5) The Deputy did not know if it was a male or female who hit the
building. In fact, he had no description (RR Vol. 1 p. 18).
3
6) The Deputy, after reviewing the video in Court, noticed no damage
to the building was captured on his video recording (RR Vol.l p. 19).
It is therefore quite clear from the evidence and record in this case that the Trial
Court erred by not granting Appellant's Motion to Suppress. Deputy Escalante had
no reasonable suspicion to stop Appellant's vehicle on Aprill8, 2013.
APPELLANT'S ONLY POINT OF ERROR:
The Trial Court Erred by not granting Appellant's Motion to Suppress.
This case is basically a traffic stop based on a tip relayed to law enforcement in
Kendall County from a 911 call. It is interesting to note that the caller in this case
did not witness any of the activity that alleged to have happened but was told by
someone else to call 911. (RR Vol. 1 p. 19).
It is well settled law that Appellate Courts should afford almost total
deference to a trial court's determination of the historical facts that the record
supports especially when the trial court's fact findings are based on an evaluation
of credibility and demeanor. The Appellate Courts should also afford the same
amount of deference to a trial court's rulings on application of law to fact
questions, also known as mixed questions of law and fact, if the resolution of those
ultimate questions turns on an evaluation of credibility and demeanor. The
Appellate Courts may review "de novo" mixed questions of law and facts not
falling within this category. See Guzman v. State, 955 S.W. 2d 85, 88-89 (Tex.
4
Crim. App. 1997). Also, the question of whether a certain set of facts gives rise to
reasonable suspicion is reviewed "de novo". See Wade v. State, 422 S.W. 3d 661,
669 (Tex. Crim. App. 2013).
The sole issue in this case is whether Deputy Escalante based on the 911 call
had reasonable suspicion to stop Appellant's vehicle. To justify a warrantless stop
of Appellant's vehicle, the State was required to prove the officer had reasonable
suspicion that Appellant's vehicle occupant (driver) was violating the law. See
Ford v. State, 158 S.W. 3d 488, 492 (Tex. Crim. App. 2005). Further, an officer
has reasonable suspicion if he has specific, articulable facts that when combined
with rational inferences from those facts would lead him to reasonably conclude
that the person detained is, has been, or soon will be engaged in criminal activity.
See Wade at 668. To support a reasonable suspicion, the articulable facts must
show that some activity out of the ordinary has occurred, some suggestion to
connect the detainee to the unusual activity, and some indication the unusual
activity is related to a crime. See Derichsweiler v. State, 348 S.W. 3d 906, 916
(Tex. Crim. App. 2011) & Meeks v. State, 653 S.W. 2d 6, 12 (Tex. Crim. App.
1983).
The facts in this case clearly show that when Deputy Escalante arrived on
the scene at McDonald's he observed:
5
1) Nothing out ofthe ordinary (RR. Vol. 1 p.11).
2) There was no damage to the McDonald's building (RR. Vol. 1 p.
11 & 19).
3) The Deputy noticed !!.Q. criminal activity by Appellant nor did he
see Appellant committing any traffic violations prior to stopping
Appellant's vehicle (RR Vol. 1 p. 19).
The facts in this case are clear and the aforementioned law is clear that Deputy
Escalante had no reasonable suspicion to stop Appellant's vehicle. The Fourth
Amendment to the United States Constitution and Article 1, Section 9 of the Texas
Constitution provide that "The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures shall not be
violated. Any evidence obtained by an officer or other person in violation of any
provisions of The Constitution or laws of The State of Texas or of The
Constitution or Laws of The United States of America" is inadmissible in a
criminal case See Texas Code of Criminal Procedure Article 38.23. Therefore, the
Trial Court should have granted Appellant's Motion to Suppress and ruled
inadmissible all evidence seized in this case relating to Appellant's D.W.I. arrest
including, but not limited to the results of any field sobriety testing.
Next, Deputy Escalante lacked reasonable suspicion to stop Appellant's
vehicle based on the 911 call. The 911 call did not give a description of:
6
1) The driver, whether male or female (RR. Vol. 1 p. 18).
2) Any criminal activity.
3) A description of the vehicle (RR. Vol 1. P. 9 & 15).
4) How Appellant allegedly hit the McDonald's building (RR. Vol. 1
p. 17).
5) What time the Appellant allegedly hit the building (RR. Vol. 1 p.
18).
6) The description of the 911 caller or how to contact or identify the
911 caller.
An anonymous tip from a 911 call must be supported by sufficient indicia of
reliability or it will seldom provide reasonable suspicion for an investigatory stop.
See Martinez v. State, 348 S.W. 3d 919, 923 (Tex. Crim. App. 2011). A tip from a
911 call by an unnamed informant of undisclosed reliability standing alone rarely
will establish the requisite level of suspicion necessary to justify an investigative
detention. See US v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 1881 (1980) and
State v. Sailo, 910 S.W. 2d 184,188 (Tex. App. Ft. Worth 1995 pet. ref d). As
noted from the facts referenced above, the 911 call in this case showed no reliable
facts. In fact, the Deputy noticed no damage to the building and did not even have
a description of the vehicle or what time this event even occurred. The 911 caller
in this case did not report any contextual factors that would have lead Deputy
Escalante to reasonably believe he was justified in stopping Appellant's vehicle.
7
See Martinez v. State at 925 and Arguellez v. State, 409 S.W. 3d 657, 663-664
(Tex. Crim. App. 2013).
Further, there was no evidence in the record to suggest the Love's Truck
Stop or the McDonald's was remotely near or connected to a high crime area.
Deputy Escalante was not able to corroborate any of the facts from the 911 call
because the call was really conclusory. Basically, the call stated we have someone
here in the drive-through at McDonald's that hit the building and appears
intoxicated. However, as noted earlier:
1) The call does not say what time this occurred.
2) Who actually observed this activity.
3) A description of the driver.
4) A description of the vehicle.
5) How the building was actually hit.
Without more, the law is clear. Deputy Escalante had no reasonable suspicion to
stop Appellant's vehicle. Reasonable suspicion requires the information in the call
to be reliable in its assertion of unlawful conduct, See Florida v. J.L., 529 U.S. 266,
270, 120 S. Ct. 1375 (2000). In this case, again, Deputy Escalante saw no criminal
activity, no damage to the building, and no traffic violations prior to stopping the
Appellant's vehicle.
8
In conclusion, the Trial Court committed error by not granting Appellant's
Motion to Suppress.
9
CONCULSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court of
Appeals to uphold the points of error presented herein, reverse the judgment, and
remand the case for a new trial.
Respectfully submitted,
Danford Law Firm
813 Barnett Street
Kerrville, Texas 78028
State Bar No. 00783924
(830)257-4045 Office
(830)896-5250 Fax
hdanford@ktc.com
10
Certificate of Service
I hereby certify that a true and correct copy of Appellant's Brief has been sent to
Donald Allee, Kendall County Attorney, 201 East San Antonio Stn1t;t, Suite 306,
Boerne, Texas 78006-2050 by U.S. Certified mail on this the I 1-t:!:J_ day of
May, 2015.
11
Certificate of Compliance
I, Harold J. Danford, hereby certify that in compliance to Texas Rules of
Appellate Procedure Rule 9.4(i)(3), this document has 2,325 words according to the
word count the computer program used to prepare the document.
Signed on ~ I ( '2015.
12