Allison Leigh Campbell v. State

ACCEPTED
01-14-00807-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/30/2015 8:17:28 AM
CHRISTOPHER PRINE
CLERK

APPELLATE COURT NO. 01-14-00807-CR

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
OF THE STATE OF TEXAS 3/30/2015 8:17:28 AM
CHRISTOPHER A. PRINE
AT HOUSTON Clerk

ALLISON LEIGH CAMPBELL,
Appellant

vs.

THE STATE OF TEXAS,
Appellee.
________________________________________________________

TRIAL CAUSE NO. 1923909
FROM HARRIS COUNTY CRIMINAL
COURT AT LAW NO. 12

Honorable ROBIN BROWN, Presiding
________________________________________________________

APPELLANT’S RESPONSE TO APPELLEE’S BRIEF
________________________________________________________

PAUL MEWIS
ATTORNEY FOR APPELLANT
4202 Windy Chase Lane
Katy, Texas 77494-1071
281.392.2306 (telephone)
281.392.7203 (facsimile)
STATE BAR NO. 13986500

ORAL ARGUMENT IS REQUESTED
 IDENTIFICATION OF THE PARTIES

A complete list of the names of all interested parties
is provided below:

Counsel for the State:

DEVON ANDERSON – District Attorney of Harris
County

KIMBERLY APERAUCH STELTER – Assistant District
Attorney on appeal
Appellate Division
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002-1923

Appellant or criminal defendant:

ALLISON LEIGH CAMPBELL

Counsel for Appellant:

PAUL MEWIS, Attorney
Texas Bar Card No. 13986500
4202 Windy Chase Lane
Katy, Texas 77494-1071
713.857.7003 (cell)
281.392.2306 (office)
281.392.7203 (facsimile)
paul@mewislaw.com (e-mail)

Trial Judge:

HON. ROBIN BROWN – Presiding Judge

ii
 TABLE OF CONTENTS
Page

IDENTIFICATION OF THE PARTIES ....................... -ii-

INDEX OF AUTHORITIES ................................ -iv-

RESPONSE TO APPELLEE’S ARGUMENTS ..................... -2-

CONCLUSION .......................................... -21-

CERTIFICATE OF SERVICE .............................. -22-

iii
 INDEX OF AUTHORITIES

Cases Page

Boykin v. State,
818 S.W.2d 782 (Tex.Crim.App. 1991)............... -18-

Brenan v. State,
140 S.W.3d 779 (Tex.App.--Houston [14th Dist.]
2004, pet ref'd).............................. -2-, -3-

Cashin v. State,
Nos. 14-03-01140-CR, 14-03-1141-CR, 2005
WL 975663(Tex.App.--Houston [14th Dist.]
Apr. 28, 2005, no pet.)(mem. op., not
designated for publication)....................... -16-

Davis v. State,
947 S.W.2d 240 (Tex.Crim.App. 1997)............... -19-

Kothe v. State,
152 S.W.3d 54 (Tex.Crim.App. 2004)................ -19-

Lauderback v. State,
789 S.W.2d 343 (Tex.App.--Fort Worth 1990,
pet ref'd)........................................ -16-

Morrison v. State,
71 S.W.3d 821 (Tex.App.--Corpus Christi
[13th Dist.] 2002) ................................ -17-

Ohio v. Robinette,
519 U.S. 33 (1996)................................ -19-

Windham v. State,
No. 14-07-00193-CR, 2008 WL 2169918
(Tex.App.--Houston [14th Dist.] May 22, 2008,
pet ref'd)........................................ -16-

iv
 INDEX OF AUTHORITIES

CASES: PAGE

York v. State,
342 S.W.3d 528 (Tex.Crim.App. 2011)............... -18-

AMENDMENTS:

FOURTH AMENDMENT ....................................... -19-

TREATSIES:

6 Michael B. Charlton,
Texas Practice: Texas Criminal Law 24.4 (1994).... -17-

STATUTES:

TEX.PENAL CODE, Section 6.03 .......................... -11-

TEX.PENAL CODE, Section 42.03 ........ -9-, -10-, -11-, -13-

TEX.PENAL CODE, Section 42.03(b) ...................... -10-

v
 APPELLATE COURT NO. 01-14-00807-CR

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT

OF THE STATE OF TEXAS

AT HOUSTON

ALLISON LEIGH CAMPBELL,
Appellant

vs.

THE STATE OF TEXAS,
Appellee.
________________________________________________________

TRIAL CAUSE NO. 1923909
FROM HARRIS COUNTY CRIMINAL
COURT AT LAW NO. 12

Honorable ROBIN BROWN, Presiding
________________________________________________________

APPELLANT’S RESPONSE TO APPELLEE’S BRIEF
________________________________________________________

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF
APPEALS:

Comes now ALLISON LEIGH CAMPBELL, hereinafter referred

to as the Appellant, and submits this Brief in Response

to Appellee’s Brief, filed on March 11, 2015, with the

-1-
Clerk of the Court of Appeals for the First Judicial

District of the State of Texas, at Houston.

RESPONSE TO APPELLEE’S ARGUMENT

I.

The Appellee, in its Brief herein, begins its

arguments with the following: “Appellant has failed to

present any issue for review regarding the trial court’s

overruling of her motion to suppress because she has not

established what, if any, evidence was obtained as a

result of Officer Pena’s action.”

The State relies on Brennan v. State, 140 S.W.3d 779

(Tex.App. – Houston [14th Dist.] 2004, pet ref’d):

holding global request to suppress ‘all
evidence seized or obtained’ from alleged
illegal searches and failure ‘to identify what,
if any, evidence was ruled upon by the denial’
presented nothing for appellate review.

What Appellee conveniently leaves out of its Brief is

the portion of the Brennan opinion which states:

Appellant’s motion for rehearing asserts for
the first time that the fruits of the illegal
seizure are obvious and can easily and

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 unmistakably be ascertained by reviewing the
record. It identifies, for the first time,
several examples of such items from the
reporter’s record of the hearing. However, to
have identified these fruits from what is
provided in appellant’s brief, as he now
proposes, would have required this court to:
(1) assume that evidence appellant sought to
suppress had even been admitted into evidence
at the hearing, which it was not required to
be; (2) search the 50 page reporter’s record of
the hearing and apply applicable law to it to
determine which items might arguably have been
such fruits; and then (3) assume that appellant
would have done likewise. On the contrary, our
role is merely to evaluate the grounds of error
presented by the appellant, not to develop them
for him.

Since the Justices in the Brennan case believe it is

not their role to develop “grounds of appeal for

appellant”, Appellant will, in this response brief,

identify the fruits of the illegal detention and

subsequent arrest, as they appeared in the trial court

transcript of the hearing.

First, Appellant refers this Court to Pages 3-20 of

Appellant’s Brief. In the “Statement of Facts” in

Appellant’s Brief, Appellant clearly lays out the exact

testimony from the hearing, as it regards the officer’s

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actions. These actions led to the officer’s

observations and beliefs that could later be recited in

a trial as evidence, in the form of oral testimony

supporting a conviction for D.W.I. Appellant pled

guilty once her Motion to Suppress was overruled.

It is clear, up and through Page 5 of Appellant’s

Brief, that the officer’s actions in approaching a

parked car to awaken sleeping occupants was a “casual

encounter”, not requiring any reasonable suspicion of

criminal activity or probable cause of a crime. But,

the testimony on Page 6 of Appellant’s Brief clearly

indicates the initial casual encounter escalated into a

detention, once the officer demanded, received and kept

Appellant’s Texas driver’s license.

Appellant, on Pages 24-30 of her Brief, fully

discusses and provides the Court with ample case law to

back-up her argument. When the officer demanded,

obtained and never returned her Texas driver’s license,

Appellant was illegally detained.

-4-
 This detention required reasonable suspicion and,

per the “fruits of the poisonous tree doctrine”, all

subsequent observations and actions (including field

sobriety tests and statements by the Appellant and

officers, are fruits of the initial detention.

Specifically, see the Statement of Facts, on Pages 8-10

of Appellant’s Brief.

These are the fruits of the illegal detention that

were being presented to the Trial Judge to be

suppressed, i.e., all the officer’s testimony as to what

he observed Appellant do once he returned to her car.

See (Page 17, Lines 12-18, Reporter’s Record):

Defense Atty.: So at this point in time, you
pull your personal car next to
her driver’s door and get out?

Officer: That’s correct.

Defense Atty.: And your purpose was to?

Officer: Basically try to help her out,
either getting a ride home or
at that point I determined
that she was possibly
intoxicated. . .

-5-
 The fact that the officer still had Appellant’s

Texas driver’s license in his possession, the “smell of

alcohol”, Appellant “cussing at him” and Appellant’s

accusation of the officer harassing her are all fruits

of this illegal detention. At some point, the Appellant

got out of her vehicle and she goes to the ground after

the officer places his hand on her. The officer

handcuffs Appellant and calls for back-up to continue

his investigation.

Most important is the testimony by the officer

admitting he did not see Appellant drive. Rather, the

officer said she was behind the wheel of a car that was

in “park”, with the motor running (Page 13, Lines 7-25,

Reporter’s Record):

DEFENSE ATTY.: And when you first saw my
client’s car that you got her
out of, was she parked,
stopped?

OFFICER: At that point, when she’s in
front of me – like, I don’t
remember if the car was in
gear or parked, so I’m going
to say if the car didn’t roll
when I started talking to her,

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 I’m going to say the vehicle
was parked.

Defense Atty.: Did you see my client drive up
to the Taco Cabana before you
arrived that night?

Officer: No, sir, I didn’t.

Defense Atty.: When is the first time you saw
my client’s car?

Officer: When I pulled up to place my
order right behind her car.

Defense Atty.: So you were sitting parallel
to the order board in the
closest lane to the building,
correct?

Officer: That’s correct. It is like a
little turn there. So she was
already off the turn and I was
in the turn.

Defense Atty.: So you didn’t at that time see
her drive or operate that
motor vehicle, did you?

Officer: That’s correct.

Appellant testified that she had not driven the car,

but another male had driven and received a call and had

to leave (Page 26, Lines 22-25, Reporter’s Record):

Prosecutor: Did you drive to the Taco
Cabana location?

-7-
 Appellant: I did not.

Prosecutor: Who drove?

Appellant: Two males were with us. . .

As a direct result of the officer’s seizure of

Appellant’s Texas driver’s license and his demand that

she relocate her vehicle, this enabled the officer to

supply the missing D.W.I. element of “drive and operate

a motor vehicle”. The observation of her driving her

vehicle is a fruit of the illegal detention.

Additionally, all actions, observations and field

sobriety tests by the assisting officer would be tainted

by the initial illegal detention. Thus, these elements

would be suppressed under the fruits of the poisonous

tree doctrine.

II.

Next, Appellant attempts to justify Appellant’s

detention, i.e., asking for her Texas driver’s license

on the theory that the officer was conducting an

investigative detention for obstructing a passageway

and/or public intoxication.

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 This Court should base its decision on the officer’s

testimony and not the personal opinion of the Appellee.

In this context, the Appellee wants this Court to hold

the drive-thru lane to be a “passageway” covered by

Section 42.03 of the Texas Penal Code. Please note the

officer’s testimony during the trial court’s hearing

(Page 18, Lines 19-25 & Page 19, Line 1 of the

Reporter’s Record):

Prosecutor: The Taco Cabana drive-thru, I want
to take you back to that. Would
you describe it as a passageway,
perhaps?
Officer: I can’t recall it as a passageway.
Most drive-thru(s) have one lane
that curves around. You order at
the board and come back up to the
drive-thru window. There are
several that are two lanes, but I
don’t recall if that was a two-
lane.

Even the officer didn’t consider the drive-thru a

passageway!

Note, also, the officer’s statement regarding one or

two lane drive-thru(s) make it clear that if it were two

lanes, he wouldn’t consider it a passageway!

-9-
 The prosecutor goes on to press the officer in an

effort to transform the drive-thru into one of the

specific passageways covered by Section 42.03 of the

Texas Penal Code. The prosecutor was able to get the

officer to verify that the drive-thru system had both an

entrance and exit, neither of which Appellant blocked.

Rather, he testified that Appellant blocked a path

between the two.

But, again, since ignorance of the law is not an

excuse or defense in Texas, the officer should have been

familiar with Section 42.03(b), Texas Penal Code. This

Article pertains to the definition of “obstruct”, which

means to render impassable or to render passage

unreasonable inconvenient or hazardous.

The officer was asked these questions directly and

denied either existed!

The Legislature, also, clarifies Section 42.03,

Texas Penal Code, by beginning with:

(a) A person commits an offense if without
legal privilege or authority. . .

- 10 -
 Clearly, Taco Cabana expected its customers to be

able to stop as they proceeded from the entrance to the

exit of the drive-thru(s) to place an order and to wait

in line as other cars stopped enroute to this pick-up

window.

Section 42.03 of The Texas Penal Code, also makes it

a crime if Appellant refused to move her vehicle, if

asked by the officer. In this case, once the officer

ordered Appellant to move her vehicle, she complied and

then parked it. Thus, no offense occurred.

III.

Finally, Texas law only criminalized conscious acts

as crimes. See Section 6.03 of the Texas Penal Code

Annotated: “Definitions of Culpable Mental States”.

Intentional requires a “conscious” objective or

desire to engage in the conduct or cause the result.

Knowingly requires a person to be “aware” of the

nature of his conduct or that circumstances exist.

Recklessly requires a person to be “aware” of but

“consciously” disregard a substantial and unjustifiable

- 11 -
risk that the circumstances exist or the result will

occur. Appellant apparently fell asleep while waiting

in line and could not have been “conscious” or “aware”,

as the law requires.

In analyzing the facts and law of this case, one is

attempting to determine what facts the officer had at

the time he seized Appellant’s Texas driver’s license

(i.e., detained her).

In many cases, an officer begins a casual encounter

and, upon investigation, he learns new facts that may

provide a reasonable suspicion to detain. Upon further

investigation during the detention, he may even learn

new facts sufficient for probable cause to arrest.

However, in this case, rather than learning new facts

indicating criminal activity, all facts learned by the

officer tend to dispel any belief a crime had been or

was being committed.

The officer, upon his arrival at Appellant’s door of

her vehicle, could clearly see the appellant was asleep.

- 12 -
Thus, proving that she was not intentionally, knowingly

or recklessly obstructing the drive-thru.

Secondly, the officer candidly admitted he could

have safely and without any “unreasonable” inconvenience

drive around Appellant, meaning there was no obstruction

at all as defined by Section 42.03, Texas Penal Code.

The Legislature chose not to outlaw all obstructions

that made passage “inconvenient”, but only those that

made passage “unreasonably inconvenient”.

Thus, the seizure and retention of Appellant’s Texas

driver’s license, at this point, was not supported by a

reasonable suspicion.

Also note that in Texas, the Courts have allowed for

an officer making a traffic stop to ask for one’s Texas

driver’s license. This is for the purpose of checking

for open warrants. However, also note that this officer

was off-duty, working an extra security job at a

neighboring Walmart when he decided to get breakfast in

his personal car. He testified that he did not have the

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ability to run a registration check (Page 9, Lines 12-

15, Reporter’s Record).

IV.

As for the Appellee’s second contention that the

officer was conducting a public intoxication

investigation, again, please base your decision on the

facts testified to by the officer in the hearing. The

officer clearly stated he smelled no alcohol upon the

initial encounter and that he had no hesitation in

asking Appellant to drive the car some “500 feet” and

park and wait for him:

Officer: … and I asked her for her driver’s
license. At that point she gave
me a driver’s license and I told
her to take a parking space that
was about five hundred feet from
our location (Page 8, Lines 23-25
& Page 9, Line 1, Reporter’s
Record).

Officer: She was – she looked tired. She
was sleepy. At that point I did
not smell any alcohol. That’s why
I made the decision to let her
drive to the parking space.

. . .

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 Prosecutor: When she drove off, how far away
did she drive?

Officer: Approximately 500 feet from the
location she was at, to the
parking space. (Page 9, Lines 4-
11, Reporter’s Record).

Prosecutor: What did you do with the license?

Officer: I placed it in my pocket and I
instructed her verbally to park at
one of the parking locations about
500 feet from our location.

Prosecutor: And then I take it you shut the
door so she could comply with your
order to move to another location?

Officer: That is correct. (Page 16, Lines
5-11, Reporter’s Record).

This clearly shows that the officer had no facts to

support a reasonable belief of either public

intoxication or D.W.I.

Five hundred (500) feet? That is 166 yards! In

fact, I used Google Earth to find a point 500 feet from

this Court’s Courthouse. That would be (going North on

San Jacinto) the Criminal Courthouse; (going West on

Congress) at the Metro Rail; (going South on Fannin) the

- 15 -
front door of Sam Houston Hotel; and (going East on

Preston) at the Civil Courthouse. The Court can take

judicial knowledge of these distances. Note, also, it

is 500 feet from the Taco Cabana drive-thru to the front

door of the officer’s extra job at Walmart!

Allowing Appellant to drive unescorted for such a

distance clearly shows no reasonable suspicion on the

part of the officer that she was either publicly

intoxicated or D.W.I.!

The State cites three (3) Texas cases, two (2) of

which are unpublished opinions, supporting its argument

that even the brief blocking of a passageway was a

crime. These three cases are as follows: Lauderback v.

State, 789 S.W.2d 343 (Tex.App.—Fort Worth 1990, pet

ref’d); Windham v. State, No. 14-07-00193-CR, 2008 WL

2169918 (Tex. App. – Houston [14th Dist.] May 22, 2008,

pet ref’d); and Cashin v. State, Nos. 14-03-01140-CR,

14-03-1141-CR, 2005 WL 975663 (Tex.App. – Houston [14th

Dist.] Apr. 28, 2005, no pet.)(mem. Op., not designated

for publication). However, it fails to point out that

- 16 -
all three of these cases involve the accused having

stopped on a highway. The Courts found such an act

“hazardous”, due to the sheer nature of a highway being

for travel at rates of speed from 30 – 75 m.p.h. and

where users don’t expect someone to stop in a moving

lane.

Contrast this to a drive-thru lane where one is

expected to repeatedly stop, place an order, and proceed

(stop & go), as others pay for their orders (at rates

under 5 m.p.h.). This hardly creates a hazard! See

Morrison v. State, 71 S.W.3d 821 (Tex. App.—Corpus

Christi [13th Dist.] 2002):

While the instant vehicle was parked in the
northbound lane of traffic, it was not
obstructing southbound traffic and was passable
by northbound motorists entering the southbound
lane, passage was not unreasonably inconvenient
because there was no traffic. As one scholar
has commented, no violation of the statute is
proven ‘by evidence that shows the defendant
only caused a slower passage or momentarily
impeded progress.’ 6 Michael B. Charlton, Texas
Practice: Texas Criminal Law 24.4 (1994).
Additionally, the vehicle did not, and indeed
could not have created a hazardous condition
because there were no children at play at the
time the vehicle was stopped. To hold the
vehicle obstructed a roadway under these

- 17 -
 circumstances, would subject virtually every
mail carrier and delivery person to prosecution
on a daily basis. This would be an absurd
result which we must avoid. Boykin v. State,
818 S.W.2d 782 (/case/boykin-v-state-6)
(Tex.Crim.App. 1991). Accordingly, we hold the
trial judge abused his discretion in denying
appellant’s motion to suppress on the basis
that Golden observed a violation of Section
42.03 of the Texas Penal Code.

Additionally, while appellant drove-off, as ordered,

the officer’s main concern was to continue through the

drive-thru window, pick-up and pay for his breakfast!

Appellee cites York v. State, 342 S.W.3d 528

(Tex.Crim.App. 2011), in which they justify a public

intoxication investigation for one sleeping in a running

car. But, the facts in York showed the vehicle was

parked partially on a sidewalk and Defendant was

confused about his location, the business was closed,

which indicated the possibility of a burglary. These

facts are far from falling asleep for two minutes in a

drive-thru of an open business. Additionally, when the

Appellant was awoken by an officer and ordered to move

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her vehicle, she complied. Appellant displayed no

confusion and was aware of her location.

Texas law has addressed the need to justify

continual, prolonged detention. See Kothe v. State, 152

S.W.3d 54 (Tex.Crim.App. 2004):

In deciding whether the scope of a Terry
detention is “reasonable,” the general rule is
that an investigative stop can last no longer
than necessary to effect the purpose of the
stop. [32] In other words, if a driver is
stopped on suspicion of driving while
intoxicated, once the police officer determines
that the driver is not impaired, he should be
promptly released [33]. . .In the present case,
the court of appeals agreed that ‘a warrant
check in the context of a traffic stop is
generally viewed as a reasonable law
enforcement exercise.’ [38] However, citing
Davis v. State, the court of appeals stated
that a warrant check cannot be used solely as a
means to extend a detention ‘once the
reasonable suspicion forming the basis for the
stop has been dispelled.’ [39] This is
consistent with the rationale behind the
Supreme Court’s development of Fourth Amendment
law. . .In Ohio v. Robinette, . . . once the
original purpose for the stop is exhausted,
police may not unnecessarily detain drivers
solely in hopes of finding evidence of some
other crime. . .Only if a license check ‘unduly
prolongs’ the detention is the officer’s action
unreasonable under the circumstances. [43] In
this case, the court of appeals thought that
the order of events was crucial. It found that
because Deputy Forslund did not initiate the

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 warrant check until after he had determined
that Mr. Kothe was not intoxicated, the deputy
impermissibly extended the detention[44]. . .

Once our officer was presented with the above facts

(supporting no obstruction of a passageway, no use of

alcohol, no signs of intoxication or danger to

Appellant’s self or another), Appellant should have been

permitted to leave. However, she could not leave

because the officer had seized and retained her Texas

driver’s license.

V.

Finally, the Appellee wants to argue the handcuffing

of Appellant was only a detention and not an arrest

requiring probable cause. What Appellee is ignoring is

that the Appellant testified under oath, as follows:

Appellant: He comes up and I feel he’s
aggressively speaking to me.
I didn’t even know why I’m
really there. It is not being
explained to me. He is
talking to me. At one point –
and then I do open the door.
And I’m grabbed on the arm

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 right here. Immediately
pulled out of the car and put
on the ground. At which I’m
asking what I’ve done.
Because I don’t know.

Defense Atty.: Did you get a response from this
officer?

Appellant: No, I did not.

Defense Atty.: Were there any other officers
present when he first grabbed your
arm and put you on the ground?

Appellant: No, sir.

Defense Atty.: After he put you on the ground,
did he handcuff you?

Appellant: He did. Shortly after I reached
the ground, I was handcuffed.

Clearly, the officer, without probable cause, chose

to arrest the Appellant.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, having considered

the authorities and arguments presented herein,

Appellant prays the Court to enter an order setting

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aside the judgment and sentence in this matter for the

reasons enumerated above.

RESPECTFULLY SUBMITTED,

/s/ Paul Mewis

PAUL MEWIS
Texas Bar Card No.13986500
4202 Windy Chase Lane
Katy, Texas 77494-1071
281.392.2306 (office)
713.857.7003 (cell)
281.392.7203 (facsimile)
paul@mewislaw.com (e-mail)
ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and
correct copy of the foregoing Appellant’s Response to
Appellee’s Brief was hand delivered to the attention of
Ms. Kimberly Aperauch Stelter, A.D.A., Appellate
Division, Harris County D.A.’s Office, 1201 Franklin,
Suite 600, Houston, Texas 77002-1923, on this the 31st
day of March, 2015.

/s/ Paul Mewis

PAUL MEWIS

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 WORD COUNT CERTIFICATE OF COMPLIANCE

I, PAUL MEWIS, the undersigned attorney for
Appellant Allison Leigh Campbell, in Appellate Cause No.
01-14-00807-CR, certify that Appellant’s Reply Brief
contains 3,898 words. This Reply Brief is a computer-
generated document created in Microsoft Word 2010, using
Courier New 14 point font. I am relying on the word
count provided by the software used to prepare the
document.

/s/ Paul Mewis

PAUL MEWIS

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