ACCEPTED
14-15-00025-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
3/10/2015 10:36:25 AM
CHRISTOPHER PRINE
CLERK
No. 14-15-00025-CR
****************** FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE 3/10/2015 10:36:25 AM
COURT OF APPEALS CHRISTOPHER A. PRINE
FOR THE FOURTEENTH SUPREME JUDICIAL DISTRICTClerk
AT HOUSTON, TEXAS
******************
NATHAN JONES, Appellant
Vs.
THE STATE OF TEXAS, Appellee
*******************
BRIEF OF APPELLANT
(ANDERS BRIEF)
*******************
Respectfully submitted,
SUE BERKEL
PO BOX 303063
AUSTIN, TEXAS 78703
TELE: 512 689-8733
FAX: 512 323-5039
NO ORAL ARGUMENT REQUESTED
By:/s/SueBerkel____________
SUE BERKEL
ATTORNEY FOR
APPELLANT
STATE BAR NO. 02202525
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of the parties of the judgment appealed from
and the names and addresses of all trial and appellate counsel.
Defendant/Appellant Nathan Jones
Prosecution/Appellee The State of Texas
Trial and Appellate Attorney for the State David A. Escamilla
State Bar No. 06662300
Travis County Attorney
Travis County Attorney’s Office
314 West 11th St.
Austin, Texas 78701
Phone: (512) 854-9415
Trial Attorney for Defendant Mr. Matthew Jones
State Bar No. 10929150
Attorney at Law
4408 Spicewood Springs Rd..
Austin, Texas 78759
Phone: (512) 451 6991
Appellate Attorney for Defendant Sue Berkel
State Bar No. 02202525
Attorney at Law
PO Box 303063
Austin, Texas 78703
Phone: (512) 689-8733
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
POSSIBLE ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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INDEX OF AUTHORITIES
CASES
Brooks v. State 323, S.W.3d 893, 905-907 (Tex.Crim. App.2010). . . . . . . . . . . 9
Davis v. State, 947 S.W. 12d 240, 244 (Tex. Crim. App. 1997). . . . . . . . . . . . . .11
Derichsweiler v. State, 348 S.W.3d 906 (Tex.Crim.App. 2011) . . . . . . . . . . . . . 11
Ford v. State, 158 s.W.3d 488, 492 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . 11
Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . 10
Maryland v. Wilson, 519 U.S. 408, 411 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Temple v. State 342 S.W.3d 572 (Tex.App.Houston(14th Dist.) 2010). . . . . . . . . 9
Terry v. Ohio,392 U.S. 1, 22 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
State v. Castleberry, 332 S.W.3d 460 (Tex.Crim.App. 2011). . . . . . . . . . . . . . . . 11
United States v. Sokolow, 490 U.S.1, 10 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 10
OTHER AUTHORITY
.
Tex. Penal Code Section 49.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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STATEMENT OF THE CASE
This is an appeal of a criminal conviction of Driving While Intoxicated, a
Class B misdemeanor. The offense was allegedly committed on or about January
18, 2014. Appellant pled not guilty to the offense, and after trial, the Judge found
the Defendant guilty and sentenced him to 180 days confinement probated for two
years with no fine or community service but required a mental health assessment,
completion of a MADD class and the installation of an ignition interlock for the
first six months of probation. From that judgment Appellant would appeal,
however, after the undersigned counsel has made a conscientious examination of
the clerk’s and reporter’s records, the undersigned counsel can find no basis for
appeal and to assert any basis would be wholly frivolous. All references to the
Clerk’s Record shall be cited as (C.R. ) followed by the page number and all
references to the Reporter’s Record shall be cited as (R.R. ) followed by the
volume (v) and page numbers ( ).
POSSIBLE ISSUES PRESENTED
POSSIBLE POINT OF ERROR ONE
This cause should be reversed because the evidence is legally
insufficient to uphold Appellant’s conviction
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POSSIBLE POINT OF ERROR TWO
This cause should be reversed because there was no reasonable
suspicion to stop the Appellant.
STATEMENT OF THE FACTS
On or about January 18, 2014, Officer Miranda McGee with the University
of Texas police department, observed Appellant’s vehicle travelling northbound on
Guadalupe St. straddling the center line. (RR, v.2, pgs.8, 12-13). Officer McGee
was westbound on 24th and turned northbound onto Guadalupe St., a public street,
in Austin, Travis County, Texas. (RR v. 2, pgs.12-13, 17) Guadalupe has two
lanes which travel southbound and two lanes which travel northbound and a bike
lane on the right but there is no turn lane. (RR v. 2, pg. 13) Prior to Officer
McGee first observing Appellant’s car, another car, a black car, had turned into
Appellant’s lane in front of Appellant and Appellant had to slow down to allow
that other car to turn into Appellant’s lane. (RR v, 2, pg. 45). Officer McGee saw
Appellant’s VW straddling the center dotted line while Appellant’s car appeared to
be pushing into the car in the adjoining lane. (RR v2, pg. 13) Appellant’s car was
going out of his northbound lane and other driver looked like he was being forced
out of his adjoining northbound lane and was being pushed into the bike lane.
(RR v2, pg. 13) Appellant explained that because the other driver had cut him off,
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he was wanting to get even with that driver so that he could mean mug him. (RR
v. 2, pg. 49-50) Officer McGee was concerned for the safety of the other driver.
(RR v. 2, pg. 14) Appellant’s car then went back into his own lane (the left hand
lane) but moved into the other car’s lane (the right hand lane) cutting the other car
off at the intersection of Guadalupe and Dean Keeton. (RR v. 2, pg. 14) Appellant
did not leave enough distance between the two cars when he moved into the right
hand lane nor did Appellant signal that he was moving from the left hand lane into
the right hand lane. (RR v. 2, pgs. 14-15) Officer McGee activated her overhead
lights and Appellant used his turn signal to turn right on 27th street and pulled over
right away at approximately 3:17 a.m. (RR v. 3, pg. 15) Officer McGee
approached Appellant and asked him why he was driving so aggressively and
Appellant replied “because the driver of the other car was driving like an asshole.”
(RR v. 2, pg. 17). Officer McGee noticed a moderate odor of alcohol emitting
from Appellant’s vehicle and noticed that Appellant had slightly slurred speech
and glassy eyes. (RR v. 2, pgs 17-18). There was nobody else in Appellant’s car
and Appellant related that he was coming from a fire twirling event and had three
beers (or three jack and sodas according to Appellant’s testimony) and that it was
1:45 a.m. (RR v. 2, pgs. 18-19, 55). Officer McGee administered the HGN test
and noticed four of six clues, that Appellant’s eyes lacked smooth pursuit in both
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eyes and had distinct and sustained nystagmus in both eyes. (RR v. 2, pg. 20).
Officer McGee administered the walk and turn test and noticed that Appellant had
an improper turn, stepped off the line, used his arms for balance and missed his
heel to toe. (RR v. 2, pg. 21) If a DWI suspect misses four or more clues on the
walk and turn test, the officer should continue the test so Officer McGee offered
Appellant the opportunity to do the one leg stand test, however, Appellant refused.
(RR v. 2, pg. 22) Appellant then began to shout about medical marijuana and
when Officer McGee asked Appellant to count out loud, Appellant told Officer
McGee to count out loud. (RR v. 2, pg. 23) Officer Zavala had arrived as a back
up officer and had to forcibly push Appellant into the patrol car after Officer
McGee arrested Appellant for DWI. (RR v. 2, pgs. 23-24) When Officer McGee
read the DIC-24 statutory warnings to Appellant he shouted over her that she was
to “get your fucking radio and order a breathalyzer on the spot”, however, once
Appellant arrived at the jail, he refused the intoxilyzer test. (RR v. 2, pgs. 25-27)
SUMMARY
Appellant could possibly complain that the evidence is not sufficient to
support his conviction and that it was error for the Court to rule that there was
reasonable suspicion to stop Appellant.
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POSSIBLE ARGUMENT UNDER POINT OF ERROR NO. ONE
A possible point of error is that this cause should be reversed because the
evidence admitted at trial was legally insufficient to support a guilty verdict. The
Court of Criminal Appeals has held that there is only one standard, the legal
sufficiency standard, to be used to evaluate whether the evidence is sufficient to
support a criminal conviction. Brooks v. State 323, S.W.3d 893, 905-907
(Tex.Crim.App.2010) When reviewing sufficiency of the evidence under the legal
sufficiency standard, the Court reviews all of the evidence in the light most
favorable to the verdict to determine whether the jury was rationally justified in
finding guilty beyond a reasonable doubt. Temple v. State 342 S.W.3d 572
(Tex.App.Houston(14th Dist.) 2010). The State had the burden to prove that on
January 18, 2014, Appellant operated a motor vehicle in a public place in Travis
County, Texas while intoxicated. (CR pgs. 10-11) Tex. Penal Code Section
49.04. Officer McGee’s testimony that Appellant operated a motor vehicle on
January 18, 2014 in a public place in Travis County, Texas was uncontroverted.
(RRv2, pg. 17) The State also proved beyond a reasonable doubt that Appellant
was intoxicated through the officers testimony regarding Appellant’s driving,
appearance, demeanor and performance on the field sobriety tests and the video
which was admitted into evidence. (RR v. 2, pgs. 9-36, State’s Exhibit 1). The
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State met its burden of proof in this case and to assert otherwise would be
frivolous.
POSSIBLE ARGUMENT UNDER POINT OF ERROR NO. TWO
A possible point of error is that this cause should be reversed because the
State failed to establish reasonable suspicion for the stop of Appellant’s vehicle.
Appellant’s counsel argued in his closing arguments that there was no reason to
pull Appellant’s vehicle over, in other words that there was no reasonable
suspicion for the stop. (RR v. 2, pg 68) Such an argument could have been made
in a motion to suppress which if successful could have suppressed the evidence of
intoxication, however, there was overwhelming evidence that Officer McGee had a
reasonable suspicion to stop Appellant.
Law enforcement officers may stop and briefly detain persons suspected of
criminal activity on less information than is constitutionally required for probable
cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968) To initiate an investigative
stop, the officer must possess a reasonable suspicion based on specific articulable
facts that, in light of the officer’s experience and general knowledge, would lead
the officer to reasonably conclude the person detained actually is, has been, or soon
will be engaged in criminal activity. United States v. Sokolow, 490 U.S.1, 10
(1989); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). These facts
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must be more than a mere hunch or suspicion. Davis v. State, 947 S.W. 12d 240,
244 (Tex. Crim. App. 1997).
An investigative stop must be objectively reasonable in light of the particular
circumstances of the case. Maryland v. Wilson, 519 U.S. 408, 411 (1997);
Terry,392 U.S. at 21-22. Whether the officer’s suspicion was reasonable is
evaluated based on “an objective standard that disregards any subjective intent of
the officer making the stop and looks solely to whether an objective basis for the
stop exists.” Ford v. State, 158 s.W.3d 488, 492 (Tex. Crim. App. 2005). It should
be based on the totality of the circumstances. See Derichsweiler v. State, 348
S.W.3d 906 (Tex.Crim.App. 2011) The Court of Criminal Appeals clarified that
the test for reasonable suspicion does not require the facts to point to the actual or
impending commission of a particular crime because a brief investigative detention
constitutes a significantly lesser intrusion upon the privacy and integrity of the
person than a custodial arrest. Id. The Court of Criminal Appeals even more
recently held that an officer can have a reasonable suspicion to stop a suspect even
if there is a possibility of an innocent explanation for the suspect’s conduct. State
v. Castleberry, 332 S.W.3d 460 (Tex.Crim.App. 2011). In this case, Officer
McGee observed Appellant’s vehicle straddle the center lane, move dangerously
into another car’s lane causing that car to move into the bike lane, cut off the other
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car at the intersection of Dean Keeton and Guadalupe while failing to signal a lane
change. (RR v. 2, pgs. 11-17). Officer McGee did not see the other car make an
unsafe turn into Appellant’s lane and even if that did in fact occur, that does not
negate Appellant’s failure to stay in his single lane of traffic. (RR v.2, pg. 32-34,
45) Officer McGee had personally observed several traffic violations and as such
had a reasonable suspicion to stop Appellant. Id.
PRAYER
For the reasons stated above, Appellant respectfully prays that the Court of
Appeals grant the undersigned counsel’s motion to withdraw because Appellant’s
appeal is frivolous.
Respectfully submitted,
SUE BERKEL
PO BOX 303063
AUSTIN, TEXAS 78703
TELE: 512 689-8733
FAX: 512 323-5039
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By:_/s/Sue Berkel________
SUE BERKEL
ATTORNEY FOR
APPELLANT
STATE BAR NO. 02202525
CERTIFICATE OF SERVICE
By my signature above, I to certify that the above instrument has been
served on the Travis County Attorney’s Office and on the Appellant, at 1200 w.
40th #108 Austin Texas 78756 this___10___day of March, 2015.
CERTIFICATE OF COMPLIANCE
By my signature above, I certify that pursuant to TRAP 9.4(i), the length of
this brief is 2792 words.
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