U1-1b-UU140-.r.;
FIRST COURT OF APPE,
HOUSTON, TEX
3/11/2015 4:10:51 F
CHRISTOPHER PF
CLEF
NO. 01-15-00140-CR
FILED IN
IN THE st
1 COURT OF APPEALS
HOUSTON, TX
COURT OF APPEALS MAR 11, 2015
CHRISTOPHER A. PRINE,
CLERK
FOR THE
FIRST JUDICIAL DISTRICT OF TEXAS
HOUSTON, TEXAS
BRAYAN JOSUE OLIVA-ARITA, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law #1
Galveston County, Texas
Trial Court Case No. MD-0342858
BRIEF FOR APPELLANT
Salvador Faus
Torres and Faus Law Filin
1009 44th Street
Galveston, Texas 77550
(409) 763-2978
(409) 763-3424 (fax)
salfaus@gma.il.com
SBN: 00785854
ATtORNEY FOR APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
The Appellant waives oral argument.
IDENTITY OF PARTIES AND COUNSEL
Parties and counsel in this case are as follows:
I. BRAYAN JOSUE OLIVA-ARITA, appellant, represented at trial by Salvador
Faus, 1009 44th Street, Galveston, Texas 77550 and represented on appeal by
Salvador Faus, I 009 44th Street, Galveston, Texas 77550.
2. The State of Texas, appellee, represented at trial by Lindsay Ricbatds1
Assistant District Attorney, and on appeal by Rebecca Klaren, Criminal
District Attorney for Galveston County, Texas, 600 59th Street, Galveston,
Texas 77551.
i
CITATION TO THE RECORD
Clerk's Record .......................................... C.R. (page)
Reporter's Record .......................................... R.R. (page)
ii
TABLE OF CONTENTS
Index of Authorities ........................................................................ .. iv-v
S1:a.tement of the Case······························~···········~········................. 1
Issues Presented. ...........•...........•......•...................•...•...•..•.........•...... -. 1-2
St:a.tement ofFaru ·····························-:··················· . ·······............. ... 2-4
Summary of Argument for Issue Number One.......................... 5
Argument in Support of Appellant's Issue Number One................... 5-7
Summary of Argument for Issue Number Two.......................... 7
Argument in Support of Appellant's Issue Number Two................ 8-11
Conclusion and Pra.yer ................................................................. .. 11
Certificate of Service········:·················································-:··········· 14
iii
INDEX OF AUTHORITIES
CASES PAGE
Contraras v. State, 309 S. W.3d 168
(Tex.App.- Amarillo 2010, pet. ref' d) .....•........................... 6, 10
Crawford v.d§tate, 355 S.W.3d 193
(Tex.App.-Houston [1st Dist.] 2011, pet. ref' d) .......................... . 9
Davis v. State, 947 S.W.2d 240,287 (Tex.Crim.App. 2008) ..... . 5
Fordv. State, 158 S.W.3d 488,492 (Tex. Crim. App. 2005) ........... .. 8
Gonzalez-Gilando v. State, 306 S.W.3d 893
(Tex.App.-Amarillo 2010, pet. ref' d) ................................... . 6, 10
Johnson y. State, 2012 WL 698894(Tex. App.Houston [ t4tl:t Dist.]
Nos. 14-10-00941-CR, 14-10-00942-CR, March 6, 2012) (Unpublished)... 6
Klare v. State, 76 S.W.3d 68, 72 (Tex.App.Houston [141h Dist.]
2002, pet:. ·ref d) •. ••I I I 1 I I. I I I I I I I I- • • • • •.• I • • • I I It I I I I II I I I I I I. I I • • • • • • • 'I I I I I s
State y, Sheppard, 271 S.W.3d 281,287 (Tex.Crim.App. 2008)...... 5
Short v. State, 2011 WL 3505611 (Tex. App.Beaumont
No. 09-1 0-00489-CR, August l 0, 20 1 J) (Unpublished). . . . . . . . . . . . . . . . . . 8~ 9
State v. Daniel, 446 S.W.3d 809 (Tex.App.-San Antonio
2014, no pet.) ............................................. !l............................. 10
iv
CASES PAGE
Tellez v. State, 2011 WL 3925627 (Tex. App. Beaumont No.
09-10•00348-CR, August 24, 2011) (Unpublished) .................... . 9
STATUTES
Texas Transportation Code Section 601.053 (a) (1-7) ................ .. 3
TEX. TRANSP. CODE ANN. §601.061 (Vernon 1999).................. . 6
CONSTITUTIONS
Fourth Amendment- United States Constitution ....................... . 2
Article l §9 of the Texas Constitution ...................................... . 2
v
NO. 01·15·0014()-CR
TO THE HONORABLE COURT OF APPEALS:
CO:MES NOW, BRAYAN JOSUE OLIVA-ARITA, hereinafter referred to as
"Appellant,'' and submits this brief pursuant to the provisions of the Texas Rules of
APPella:te Procedure and would respectfully show as follows:
STATEMENT OF THE CASE
Appellant was charged by information and complaint with the offense of
Driving While Intoxicated (C.R. 7, 8)
On December 29, 2014, a hearing on a motion to suppress was held which was
denied. (R..R. 1,39). On January 2, 2015, Appellant pleaded Nolo Contendere to the
charge and a plea bargain was reached where appellanfs punishment was assessed at
three (3) days County Jail and a $500.00 fine. (C.R., 53-54). The trial court certified
Appellant's right to appeal the denial ofthe motion to suppress. (C.R. 52).
ISSUES PRESENTED
The trial court abused its discretion in denying appellant's motion to suppress
the evidence as follows:
1
1) The State of Texas failed to prove that the insurance database is a
reliable informant in providing police officers with information
regarding whether a vehicle has insurance; and
2) A notice of "unconfmned" insurance, with no other specific
information, is insufficient to establish reasonable suspicion or
probable cause for search and seizure under the 4th Amendment of
the United States Constitution and Article 1 §9 of the Texas
Constitution.
STATEMENT OF FACTS
Appellant was charged by infonnation and complaint for the offense of
Driving While Intoxicated alleged to have been committed on February 16, 2014
(C.R., 2, 3). Appellant filed a Motion to Suppress any and all evidence of
intoxication based on the illegality of the initial traffic stop for unconfirmed
insurance. The State of Texas stipulated that this case involves a warrantless arrest.
(R.R. 5). Therefore, the burden is on the State to prove a legal basis for the stop of
Appellant. Officer Jose Lobo, with the Friendswood Police Department, was on
patrol on the night of February 16. 2014 when he performed a routine license plate
check on a silver two-door Honda. (R.R. 7) Officer Lobo testified that the license
plate check showed Appellant's vehicle to have unconfmned insuta:nce. (R.R. 8, 13)
2
Officer Lobo testified that this "typically" means that the vehicle has no insurance.
(R.R. 8)~ Officer Lobo testified that the appellant advised that he had no insurance
because he recently purchased the vehicle (R.R. 11, 12, 13). At that point, Officer
Lobo conducted a Driving While Intoxicated investigation (R.R 13). The DWI
investigation culminated in Appellant's arrest for Driving While Intoxicated.
Officer Lobo testified that he does not know who administers the insurance
database. (RR. 14, 15) He does not know for what legislative purpose the insurance
database was established. (RR. 15) Officer Lobo does not know the rate of false
positive information the insurance database generates; wherein the database relays
information to a patro] officer that the subject vehicle has unconfirmed insurance,
when in fact the vehicle is insured. (R.R. 16) Officer Lobo acknowledged that the
inso.rance database is not always accurate. (R.R. 20) Officer Lobo estimated from
his personal experience that the database revealing unconfirmed insurance was
correct around 75 percent ofthe time. (R.R. 16, 17)
Officer Lobo testified he is not aware how long it takes the database to update
a recent purchase of insurance. (R.R. 17, 22) Officer Lobo testified that he was not
aware of the legal alternative means of obtaining motor vehicle insurance pursuant to
Texas Transportation Code Section 601.053 (a) (1-7), such as a surety bond
certificate, certificate of deposit with the comptro11er, certificate of deposit with the
3
appropriate county judge, or a certificate of self-insurance. (R.R. 18-20) Officer
Lobo testified he does not know if these alternative means of establishing motor
vehicle insurance are input into the insurance database. (R.R. 19)
Officer Lobo testified that the when he checks a vehicle for insurance he
receives one of three responses: I. Confirmed; 2. Unconfinned with accompanying
information such as when the insurance expired, who was the insurance provider, and
whether it has been expired more than 45 days; or 3. Unconfirmed. (R.R. 21, 22)
After hearing the evidence and argument the trial court denied Appellant~ s
Motion to Suppress.
4
SUMMARY OF AR~UMENT FOR ISSUE NUMBER ONE
I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE.
Appellant pleaded nolo contendere to Driving While Intoxicated. The judge
assessed appellant's punishment at assessed at three (3) days County Jail and a
$500.00 fine. (C.R., 53-54) The trial court erred in denying appellant's motion to
suppress the initial traffic stop of the appellant on the basis of unconfirmed insurance
because there is no proof of the operating history and reliability of the insurance
database.
ARGUMENT IN SUPPORT OF APPELLANT'S ISSUE NUMBER ON~
Law enforcement personnel may briefly detain and investigate a person
whey they have a reasonable suspicion that the person in involved in crimina]
activity. State v. Sheppard, 271 S.W.3d 281, 287 (Tex.Crim.App. 2008). The
officer must be able to point to something that would 1ead a reasonable person to
believe that the person, being detained was engaged in, had engaged in, or was
about to engage in a criminal act. Klare v. State, 16 S.W.3d 68, 72
(Tex.App.Houston [14th Dist.] 2002, pet. rerd). Those articulable facts must
amount to more than a mete hunch or suspicion. /)gvis v._State, 94 7 S. W.2d 240,
287 (Tex.Crim.App. 2008).
5
In the instant case, Officer Lobo stopped Appellant's vehicle on the basis
that a check of his license plate through the insurance database came back
unconfirmed. Drivers are required to maintain proof of financial responsibility to
lawfully drive on public roads. See TEX. TRANSP. CODE ANN. §60l.061
(Vernon 1999). Ofc. Lobo, based solely on his personal experience, testified that
the insurance database is correct around 75% ofthe time. (R.R. 16, 17) Therefore,
based on Officer Lobo's personal experience the database is incorrect around 25%
of the time. Officer Lobo's testimony reveals he knows very little of the inner
workings of the insurance database. In the case of Johnson v: State, 2012 WL
698894(Tex. App.Houston [14th Dist.] Nos. 14-10-00941-CR, 14-10-00942-CR,
March 6, 2012) (Unpublished), although decided on other grounds; reveals another
instance where a police officer received a false positive on infonnation regarding
unconfirmed insurance.
The State did not present any evidence developing the source of the
information comprising the database, illustrating the accuracy of the databa~e,
establishing the timeliness of the information within the database, depicting how
often those using the database were told that insurance was unconfmned, or
proving that the program through which the database was accessed was even
operating at the time. Ganzafez..Gilando v. State, 306 S.W.3d 893 (Tex.App.-
Amarillo 2010, pet. ref' d). Other than Officer Lobo's anecdotal evidence, the State
did not present any evidence demonstrating the reasonableness of police reliance
on the information in the insurance database, also known as the Financial
Responsibility Verification Program. Contraras v. State, 309 S.W.3d 168
(Tex.App.- Amarillo 2010, pet. refd).
Without the State presenting evidence that the insurance database is credible
and reliable, the insurance database is the equivalent of an anonymous informant,
which, without corroborating information, cannot be the sole basis of an
investigative detention. Therefore, the trial court abused its' discretion in denying
appellant's motion to suppress.
SUMMARY OF ARGIJN(ENT FOR ISSVE NUMBER TWO
2. THE 1RIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE.
The trial court erred in denying appellant's motion to suppress the initial traffic
stop of the appellant on the basis of a response from the insurance database of
"unconfirmed" insurance, without any accompanying corroborating information.
This response does not provide sufficient specific, articulable facts to suppon
reasonable suspicion or probable cause for an investigative detention.
7
ARGUMENT IN SUPPORT OF APPELLANT'S ISSUE NUMBER TWO
A response of ''unconfirtned" insurance alone is not sufficient to create
reasonable suspicion to justify the investigative detention of Appellant. A police
officer conducts a lawful temporary detention when he has reasonable suspicion to
believe that an individual is violating the law. Ford v. State, I 58 S. W.3d 488, 492
(Tex. Crim. App. 2005). It is uncontroverted that Officer Lobo based his stop of
Appellant's vehicle upon a response of unconfirmed insurance from the insurance
database.
Officer Lobo's testimony reveals that he receives three possible responses
when checking a vehicle for insurance: 1. Confinned; 2. Unconfirmed with
accompanying information such as when the insurance expired, who was the
insurance provider, and whether it has been expired more than 45 days; or 3.
Unconfirmed. (R.R. 21, 22) Similarly, in Short v. State, 20I I WL 3505611 (Tex.
App. Beaumont No. 09-1 0-00489-CR, August 10, 2011) (Unpublished), the
officer in that case testified that these three responses are common from the
insurance database. In contrast to this case, the arresting officer in the Short case,
received information that Mr. Short was driving a vehicle that showed insura.rtce
coverage was ''unconfirmed for 45 days or more and expired.·~ IQ. The arresting
officer further testified that a report of unconfittned with no information listed
8
"typically mean_s that Department of Insurance is unable to confirm one way or the
other, and they don't have any information to support that finding." Id. The
arresting officer in Short further testified that he does not stop a vehicle whose
return states unconfirmed with no information listed. Similarly, in Crawford y.
State, 355 S.W.3d 193 (Tex.App.-Houston [lstDist.] 2011, pet. ref'd), this Court of
Appeals found that when the respon_se from the insurance database yields specific
information, such as the last insurance company, the policy number, and that the
policy had expired more than 45 days before, that this is sufficient, specific,
articulable information to justify reasonable suspicion and a subsequent
investigative detention. Id at 197, 198. Lastly, Tellez v. State, 2011 WL 3925627
(Tex. App. Beaumont No. 09-1 0-00348-CR, August 24, 2011) (Unpublished) also
supports a stop when a check of a vehicle through the insurance database reveals
unconfmned insurance with accompanying information to show that the insurance
was expired.
In contrast, to the specific articulable information seen in the Short,
Crawford, and Tellez cases, in this case, the only evidence Officer Lobo received is
that the insurance was unconfirmed on Appellant's vehicle, with no accompanying
information. A response of unconfirmed insurance, with nothing more, is not
sufficiently specific, articulable information to support reasonable suspicion to
9
justify an investigative detention.
In State v. Daniel, 446 S.W.3d 809 (Tex.App.-San Antonio 2014, no pet.),
the sole basis of the stop was based on a database response that the insurance was
unconfirmed. Id at 814. The San Antonio appellate Court in State v. Daniel found
that this response alone is not sufficiently detailed and reliable evidence to support
reasonable suspicion. Id at 815.
Similarly, a response from the insurance database that the information
regarding a vehicle's insurance is "not available" or the status was
"undocumented" is not sufficient to prove that the stop was based on either
reasonable suspicion or probable cause. Gonzalez~Gikmdo v. State, 306 S. W.3d
893 (Tex.App.-Amarillo 201 0, pet. rer d); Contraras v. $_tate, 309 S. W.3d 168
(Tex.App.- Amarillo 2010, pet. ref'd).
The distinction in the case law precedent is very clear: A response from the
insurance database of unconfirmed accompanied with specific information
corroborating the response, supports reasonable suspicion. A response from the
insurance database of unconfirmed with nothing more, as in the case at hand, is not
enough to support reasonable suspicion or probable cause to stop and detain.
A response from the insurance database that insurance on a vehicle is
"unconfirmed,n with no other accompanying information is not sufficiently
10
----'-------'~ -- - ~- --- -~- - - - ----- ---~ ------- -------~
detailed and reliable evidence to support reasonable .suspicion. After all, every
citizen in the United States is walking around unconfirmed, that we may or may
not have an arrest warrant, until the government stops you to confll111 your identity.
To justify the intrusion ofthe State upon an individual's liberty solely on the basis
of a vague, nebulous response from an unproven computer database is to venture
into a dangerous world. The trial Court abused its' discretion in denying
appellant's motion to suppress by fmding that a response of "unconfirmed"
insurance a1one, with no specific infonnation accompanying the response, is
sufficient articulable and specific facts to justify reasonable suspicion to stop and
detain.
CONCLUSION AND PRAYER
WHEREFORE PREMISES CONSIDERED, Appellant respectfully asks that
the judgment of the trial court be reversed and that a judgment of acquittal be entered
and for such other and further relief to which Appellant may be justly entitled.
11
~~?
SALVADORFAUS
TORRES and FAUS LAW FIRM
1009 44th Street
Galveston, Texas 77550
(409) 763-2978
(409) 763-3424 (fax)
salfaus@gmail.com
SBN: 00785854
Attorney for Appellant
CERTiFICATE OF COMPLIANCE
I certifY that the foregoing brief was prepared in Microsoft Word using 14
point font for text, and that the brief contains 2,064 words.
~~~
Salvador Fall!)
CERTiFICATE OF SERYICE
I hereby certify that a true and correct copy of Brief for Appellant was hand-
delivered to Ms. Rebecca Klaren, Assistant District Attorney of Galveston County,
Texas, 600 591h Street, Galveston, Texas 77551 and hand-delivered and/or mailed to
Appellant in compliance with the Texas Rules of Appellate Procedure on this the
11th day of March, 2015.
Salvador Faus
12
Brayan Josue Oliva-Arita v. State
Combined Opinion