ACCEPTED
06-15-00117-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/21/2015 8:12:44 PM
DEBBIE AUTREY
CLERK
No. 06-15-00117-CR FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 10/22/2015 8:01:00 AM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
JOSEPH LEO STREHL, IH
APPELLANT
VS.
THE STATE OF TEXAS
APPELLEE
On Appeal from the 4” Judicial District Court of Rusk County, Texas
Cause Number CR15-075
Rusk County, Texas
Judge J. Clay Gossett
APPELLANT’S BRIEF
Jeff Sanders
State Bar No: 24033153
120 S. Broadway, Suite 112
ORAL ARGUMENT REQUESTED Tyler, Texas 75702
(903) 593-8040
(903) 595-5532 fax
dsanderslaw@yahoo.com
1'
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Parties to Trial Court’s Judgment:
Appellant is JOSEPH LEO STREHL, III.
Appellee is The State of Texas.
Names and Addresses of Trial and Appellate Counsel
1. JOSEPH LEO STREHL, III
Jeff Sanders
120 Broadway, Suite 112
S.
Tyler, Texas 75702
2. The State of Texas
Michael Jimerson
Rusk County District Attomey’s Office
US N. Main St., Suite 302
Henderson, Texas 75652
TABLE OF CONTENTS
RAGE
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv - v
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Certificate of Service . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
iii
INDEX OF AUTHORITIES
CASES PAGE
Jackson V. Virginia, 443 U.S. 307, 319 (1979) . . . . . . . . . . . . . . . . . . . . 10
Beck V. State, 719 S.W.2d 205 (Tex.Crim.App. 1986) . . . . . . . . . . . . . 10-11
Carmouche V. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) . . . 18-19
Elizalde V. State, 507 S.W.2d 749, 752 (Tex.Crim.App. 1970) . . . . . . . ll
Hubert V. State 312 S.W.3d 554, 559 (Tex. Crim. App. 2010) . . . . . . . . . 18
Hulit V. State, 982 S.W.2d 431, 432 (Tex.Crim.App. 1998) . . . . . . . . . . . 20
Human V. State, 749 S.W.2d 832, 838 (Tex.Crim.App. 1988) . . . . . . . . 11
Littles V. State, 726 S.W.2d 26 (Tex.Cr.App. 1984) . . . . . . . . . . . . . . . . 11
Martinez V. State, 348 S.W.3d 919, 923 (Tex.Crim.App. 2011) . . . . . . 20-21
Maxwell V. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) . . . . . . . . 18
Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008) . . . . . . . . . . . 18
Russell V. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986) . . . . . . . . . . . 20
Sheperd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) . . . . . . . . 18
State V. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999) . . . . . . . . . 19
State V. Castlebegy, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) . . . . . 19
State V. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008) . . . . . . . . .20
Valtierra V. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) . . . . . . . 19
iv
Vessels v. State, 432 S.W.2d 108 (Tex.Crim.App. 1968) . . . . . . . . . . . . 10
Cruz V. State, 346 S.W.3d 601, 602-603 (Tex.App.—El Paso 2009). . . 12-13
Griffin v. State, 866 S.W.2d 754, 756 (Tex.App.—Ty1er 1993, no writ)12,14
Zimmer V. State, 989 S.W.2d 48, 50-52 (TeX.App.—San Antonio 1998) . . .
12-13, 17
STATEMENT OF THE CASE
The Rusk County District Attorney charged Appellant by Indictment
for the offense of Driving While Intoxicated Third or More on April 6, 2015.
(CR 6). Said Indictment arose from Appellant’s arrest on August 25, 2014.
Said Indictment also contained two paragraphs regarding prior Driving
While Intoxicated convictions to give the District Court jurisdiction and one
additional paragraph regarding a prior Driving While Intoxicated conviction
for further enhancement purposes, (CR 6).
Parties announced “Ready” for jury trial and conducted voir dire on
June 15, 2015. (CR 104). Concerning the jurisdictional and enhancement
paragraphs, the State, first, abandoned the second jurisdictional paragraph in
the Indictment. The State then filed a Brooks Notice where it alleged the
previous second jurisdictional paragraph as the enhancement paragraph.
(CR 31-32). On June 16, 2015, Appellant filed (1) a motion to dismiss for
lack of jurisdiction, (2) a motion to quash the Brooks Notice, (3) a motion to
quash the enhancement paragraph (which became the second jurisdictional
paragraph), (4) and a motion to quash the first jurisdictional paragraph. (CR
49-57). The four motions were filed due to incorrect information alleged in
1
the Indictment and in the Brooks Notice that did not match the information
on the certified copies of judgments and sentences. All four motions were
denied on June 16, 2015. (CR 58-60, 104).
After those rulings on June 16, 2015, Appellant entered a plea of Not
Guilty, and the State proceeded with its case-in-chief. Appellant had also
filed a Motion to Suppress which was carried through trial. (CR 27). The
Motion to Suppress was denied prior to the State resting its case-in-chief
(RR 85).
Appellant timely filed Notice of Appeal on June 18, 2015. (CR 91).
The Certification By Trial Court to allow this appeal was filed on June 17,
2015. (CR 84). Appellant appeals the judgment and sentence based on two
reasons. First, Appellant’s appeal is based on legally insufficient evidence
to prove a jurisdictional prior conviction. Second, the appeal is based on the
trial court’s error in denying Appellant’s motion to suppress illegally seized
evidence.
ISSUE NUMBER ONE PRESENTED
The trial court committed
reversible error when it
incorrectly admitted into evidence a prior conviction for Driving
While Intoxicated, specifically State’s Exhibit Six, for
jurisdictional purposes.
ISSUE NUMBER TWO PRESENTED
The trial court committed reversible error when it denied
Appellant’s motion to suppress the traffic stop and detention of
Appellant by the Henderson police officer.
STATEMENT OF THE FACTS
During the early morning hours of August 25, 2014, Officer Josiah
Lemelin of the Henderson Police Department was on patrol and was
contacted by dispatch concerning a possible driving while intoxicated
suspect. (RR 29). Dispatch advised the officer that an individual called the
police department regarding seeing a man at a convenience store who
appeared to be intoxicated and who was asking directions to Lowe’s. (RR
29). The caller advised that the man later got into and drove a white
Peterbilt truck with an unknown license plate number. (RR 29). The
caller’s identification was not given to the officer, and the officer did not
talk to the caller prior to looking for this white Peterbilt. (RR 29, 54).
Rather, the caller, who provided his own identification information, talked to
a dispatcher who then relayed the information to the officer. (RR 29). The
3
officer testified that he located a white Peterbilt truck that was weaving
within its lane and then made a wide turn into the Lowe’s parking lot. (RR
29-30). The officer later stated that the lefi turn was proper and was not a
wide turn, based on what was seen on video and written in his report. (RR
58). The officer engaged his overhead lights and tried to get the truck to pull
over prior to the truck turning into the Lowe’s parking lot. The officer later
detained the truck and driver in the Lowe’s parking lot. (RR 30).
At trial, Officer Lemelin testified that the reason for the traffic stop
was reasonable suspicion of a DWI. (RR 60). He stated, “A concerned
citizen called, and reasonable suspicion is probable cause as well in the State
of Texas.” (RR 60-61). The officer then confirmed that he did not talk to
the concerned citizen nor did he know the identity of the concerned citizen at
the time of the traffic stop. (RR 61). The officer also stated that he didn’t
know if the citizen caller even observed the Appellant operating the truck on
the road. (RR 62-63). The officer further admitted that he did not observe
Appellant commit any traffic violations that would justify pulling Appellant
over to detain him. (RR 61, 63). As the officer tried to explain reasonable
suspicion, probable cause, and the reason he pulled the truck over, he
summarized that the reason he stopped Appellant was “the safety of the
public.” (RR 62).
Upon making contact with the driver, whom the officer identified in
court as the Appellant, the officer administered standardized field sobriety
tests to the Appellant. Based on Appellant’s performance of the tests,
Appellant was arrested for Driving While Intoxicated. The officer then
obtained a warrant to draw blood from Appellant to determine his blood
alcohol concentration.
The concerned citizen, Scott Lake, testified at trial regarding his
observations on August 25, 2014. Lake testified that he owns a trucking
company and was at the Henderson Depot getting fuel during the early
morning of August 25, 2014. (RR 16-17). He said there was a man inside
the store who was trying to find out what direction he needed to travel
because he was lost. (RR 17). Lake said that the man “had a strong odor,
something similar to like, I guess, alcohol. I don’t know, just a strong odor.”
(RR 18). He said he called 911 to tell what he had seen after watching the
man enter a truck because he was concerned for public safety. (RR 19). He
also stated that he did not observe the truck traveling down the road and did
not see any traffic violations. (RR 24).
5
The State offered into evidence a recording of Lake’s 911 call.
Appellant objected that the proper predicate was not laid because there was
not a custodian of record to testify regarding the recording. (RR 20).
Appellant also objected that the 911 call was hearsay. The court overruled
both objections and admitted the 911 call into evidence. (RR 20). At no
point during Lake’s testimony did he ever identify Appellant as the man he
observed in Henderson Depot with a strong odor who then drove a white
Peterbilt truck in the direction of Lowe’s.
At the conclusion of the officer’s testimony, Appellant urged his
motion to suppress based, first, on Scott Lake not identifying the Appellant
as the man with a strong odor who he believed smelled like alcohol. There
was no evidence stating that Appellant was the man about whom Scott Lake
called 911. Nor was there any evidence that Appellant was the man whom
Scott Lake said got into a white Peterbilt and drove in the direction of
Lowe’s. Next, Appellant then urged in his motion to suppress that there was
no evidence of any traffic violation whatsoever. (RR 82-83). The officer
based his decision to stop the white Peterbilt on what the caller told dispatch.
The officer did not know the name of the caller and had not talked to the
caller. (RR 82-83). The court then denied the motion to suppress. (RR 85).
6
Later in the trial, the State called William Brown to testify as its
fingerprint expert. (RR 100). Brown testified that he obtained Appellant’s
fingerprints on a ten-print card, which was admitted as State’s Exhibit Four.
(RR 102-103). The State then used William Brown as the sponsoring
witness to offer State’s Exhibit Six into evidence. Appellant objected that
the prior conviction marked as Exhibit Six was not the prior conviction
alleged as a jurisdictional paragraph nor was there any evidence, including
fingerprints, connecting Exhibit Six with Appellant. (RR 108). The court
overruled Appellant’s objections. (RR 108). As William Brown testified
about Exhibit Six, the only information on Exhibit Six that had anything to
do with Appellant’s identity was the name. Nothing more. Exhibit Six
contained no fingerprints to connect Appellant with the conviction. (RR
109). William Brown later testified that, other than the name, he had no
other way of identifying or connecting Exhibit Six with Appellant. (RR
1 1 0).
A motion for directed verdict was urged by Appellant because of the
prior convictions being improperly admitted into evidence. The motion for
directed verdict was denied. (RR 112).
In closing argument, Appellant argued that the document admitted
into evidence as State’s Exhibit Six, which was the 2002 conviction without
any identifying information such as a fingerprint, should not be considered
because it wasn’t proven beyond a reasonable doubt that the prior conviction
depicted in Exhibit Six was a prior conviction of Appellant. (RR 123).
SUMMARY OF THE ARGUMENT
Appellant’s position is two-fold. First, the trial court erred in
allowing Exhibit Six to be admitted into evidence. The trial court did not
have jurisdiction for this case to be prosecuted as a felony because there was
legally insufficient proof that Appellant was convicted of two prior charges
of Driving While Intoxicated.
Second, the trial court erred by improperly denying Appellant’s
motion to suppress. The motion to suppress should have been granted
because (1) the officer did not observe any violations of the law or any other
acts that would have given him probable cause of a traffic violation or
reasonable suspicion of a possible DWI, (2) the civilian caller did not
observe any traffic violations by the driver of the white Peterbilt, and (3) the
civilian never identified Appellant as being the man and driver about whom
he called 911 on the morning of August 25, 2014.
As such, with one prior conviction proven at trial, at most, Appellant
is guilty of a Driving While Intoxicated Second, a Class A misdemeanor.
However, based on the trial court’s incorrect ruling on the motion to
suppress, Appellant’s conviction ought to be reversed.
ARGUMENT NUMBER ONE
The
trial court committed reversible error when it
overruled Appellant’s objection to the admission of State’s
Exhibit Six into evidence when said exhibit was legally insufficient
evidence to connect Appellant with a prior conviction.
A. Standard of Review
The standard of review is whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt after
considering the evidence in the light most favorable to the prosecution.
Jackson V. Virginia, 443 U.S. 307, 319 (1979).
B. The Law on Relevance and Admissibilig of Prior Convictions
Texas case law has consistently held that a prior conviction of a
defendant may be established by certified copies of a judgment and sentence
as well as authenticated copies of the Texas Department of Criminal Justice
records, including fingerprints, supported by expert fingerprint testimony
identifying the fingerprints on the documents as identical with the
defendant’s known fingerprints. Vessels v. State, 432 S.W.2d 108
(Tex.Crim.App. 1968); Beck v. State, 719 S.W.2d 205 (Tex.Crim.App.
1986). The use of fingerprints to prove prior convictions is only one
method. Another method is the testimony of a witness who personally
10
knows the defendant, knows of the prior conviction, and identifies the
defendant. I_d. at 209-210. Still another way is the stipulation or judicial
admission of the defendant. E.
Even without fmgerprints, a penitentiary packet with a photo of the
defendant can be sufficient to connect the prior judgment to the defendant on
trial. Littles V. State, 726 S.W.2d 26 (Tex.Cr.App. 1984). Other personal
information in a penitentiary packet, such as age, height, weight, hair color,
eye color, social security number, or date of birth might also be sufficient to
connect a prior conviction to the defendant. Human v. State, 749 S.W.2d
832, 838 (Tex.Crim.App., 1988).
While the documents might be admissible because they are certified
copies, they are not normally sufficient on their own to prove prior
convictions. $93 at 210. The documents themselves are not sufficient
even if the name on the judgement and sentence are the same as the
defendant in trial. Elizalde v. State, 507 S.W.2d 749, 752 (TeX.Crim.App.
1970). The State still has to prove by independent evidence that the
defendant is the person who was previously convicted. Beck at 210.
ll
The essential element in proving a defendant’s prior conviction
is evidence of identity independent of evidence from a penitentiary packet.
Cruz V. State, 346 S.W.3d 601, 602 (Tex.App.—El Paso 2009); Zimmer V.
State, 989 S.W.2d 48, 50 (Tex.App.——San Antonio 1998); Griffin v. State
866 S.W.2d 754, 756 (Tex.App.——Tyler 1993, no writ).
Case law is quite clear that the State must connect the evidence of the
prior conviction with the identity of the defendant on trial. For example, in
Cjruz, the State alleged two prior convictions to enhance the punishment
range to that of a habitual offender. Cruz at 602. The State offered one
prior conviction as Exhibit 3 (Cause Number 1404) and another prior
conviction as Exhibit 5 (Cause Number 2523) for enhancement purposes.
The judgment in Cause Number 1404 did not have a fingerprint on it but the
other one did. The fingerprint expert compared the defendant’s fingerprints
with the fingerprints of the booking packet associated with the charge that
resulted in the judgement in Cause Number 1404. However, the booking
packet was never admitted into evidence. The El Paso Court of Appeals,
relying at least in part on Zimmer, said:
12
We do not have evidence showing that the person named in the
judgment for cause number 1404 is the same as the person in the
booking packet or who stood trial for this offense. While the identical
names indicate the person is probably the same, probably is not good
enough when it is the critical element being used for enhancement.
Without the booking packet in evidence, there is insufficient evidence
to link the defendant from the judgment in cause number 1404 to the
defendant who was on trial in this case. The State failed to meet its
burden of proving beyond a reasonable doubt the defendant’s prior
conviction. Cruz at 603.
Similarly, in Zimmer, the San Antonio Court of Appeals dealt with an issue
where the State prosecuted the defendant for felony DWI but did not have a
fingerprint on the judgement and sentence on one of the two prior
convictions. The judgment and sentence in Cause Number 530867 did not
have a fingerprint. The fingerprint expert matched the defendant’s known
prints to the prints on the booking slip associated with Cause Number
530867. The trial court sustained defendant’s objection as to the admission
of the booking slip but admitted the judgment (without fingerprints) into
evidence. The fingerprint expert testified that he could not link the
defendant on trial with the judgment in Cause Number 530867. I_d. at 50. In
fact, the court said even if the booking slip had been admitted, it wasn’t
sufficient to prove it was that defendant who was previously convicted. E.
at 52.
13
The San Antonio court stated:
We are left only with testimony that the fingerprint on the back of a
booking slip, which is not in evidence, matches that of the defendant,
and a judgment convicting a person named Patricia Sandifer, who was
arrested on the same day. What we do not have is anything which
proves, by independent evidence, that the Patricia Sandifer of the
judgment ir1 cause no. 530867 is the same person in the booking slip,
the previous judgment, or the person on trial for felony DWI.
Because of the coincidence of the name and date, she probably is the
same person. But probably is not good enough when it is the critical
element being used for enhancement. I_d. at 52.
The Tyler Court of Appeals handled a nearly-identical situation in the
same manner in Griffin v. State, 866 S.W.2d 754 (Tex.App.—Tyler, 1993).
In that case the defendant was charged with DWI with two prior convictions.
The State offered into evidence exhibits three, four, and five. Exhibit Three
was defendant’s Department of Public Safety driving record. Exhibits four
and five were the judgements and sentences of two prior convictions.
Objections to all three exhibits were overruled by the trial court. I_d. at 756.
The Tyler Court of Appeals explained that, except for the similarity in
names, there was no other evidence to prove that the driving record in
Exhibit Three was the defendant’s driving record. The Court went on to say
that, while the driving record contains information about the two prior
convictions which correspond with Exhibit Four and Exhibit Five, there was
14
still no evidence proving that it was the defendant on trial who was the same
person named in the three exhibits. In relying on Beck, Elizalde, and
Vessels, the Tyler Court of Appeals stated:
Even if the name on the judgment or other document the same as is
that of the defendant on trial, it is incumbent on the State to go
forward and show by other independent evidence that the defendant is
the same person previously convicted .Therefore, even if it be
. . . . .
conceded the trial court properly admitted the challenged State’s
exhibits, standing alone, they are insufficient to prove the prior
convictions. There is evidence that all three exhibits pertain to the
same person, but there is insufficient independent evidence that they
are prior convictions of Appellant. I_d. at 756.
C. Analysis
When applying Texas case law to the facts of Appellant’s case, it is
clear that State’s Exhibit Six was legally insufficient to prove that Appellant
was convicted of DWI in Cause Number F35365 in Johnson County, Texas,
on February 20, 2002. As previously outlined, there are numerous ways to
sufficiently prove the prior conviction of a defendant on trial. The State can
rely on the fingerprint comparison to a prior judgment and sentence. The
State can call a witness who knew the defendant and knew the defendant
was convicted of the prior charge. The State can rely on an admission or
judicial confession of the defendant. Or the State can rely on the photograph
15
in a penitentiary packet or other identifying information in the penitentiary
packet as independent evidence to connect the defendant with the prior
conviction.
In this instance, the Appellee failed to utilize any of those methods to
prove that State’s Exhibit Six was indeed a prior conviction of the Appellant.
When reviewing the testimony of William Brown, the Appellee’s fingerprint
expert, it is clear that he did not do a fingerprint comparison with State’s
Exhibit Six because there was no fingerprint on Exhibit Six. (RR 108).
State’s Exhibit Six did not contain a photograph of Appellant, nor did it
contain other identifying information about Appellant like date of birth or
social security number. Additionally, there is no evidence in the record that
the State relied on another witness to testify of his or her knowledge of the
identity of Appellant and knowledge of Appellant’s prior conviction labeled
as State’s Exhibit Six. In fact, William Brown later admitted that, other than
the name, he had no other way of connecting Exhibit Six with Appellant.
(RR 1 10).
As in Q_Iu_z_, and _G_r_ifl_'1n, this case involves a certified copy of
a prior judgment and sentence without any fingerprints on the judgments and
sentences to positively connect to the Appellant. Similarly, there was no
16
~
witness in this case who knew Appellant and knew of a 2002 DWI
conviction. Furthermore, there were no other pieces of identifying
Six
~
information to connect Appellant to Exhibit Six. Just like in Zimmer Cruz,
and Griffin the only piece of evidence connecting Appellant with Exhibit
is the name. As those cases discuss, Appellant having the same name as
that which is on Exhibit Six probably means he is the same person, but
“probably is not good enough when it is the critical element being used for
enhancemen .”
Qmmg at 52.
Because the 2002 DWI conviction marked Exhibit Six is legally
insufficient to prove that Appellant was convicted of DWI in 2002, the
judgment of conviction of felony DWI third or more ought to be reversed.
Based on the fact there is legally sufficient evidence of only one prior
conviction, at most the judgment should be reformed so that Appellant is
convicted of a Class A misdemeanor and then the case remanded for
sentencing on a Class A misdemeanor DWI conviction.
17
ARGUMENT NUMBER TWO
The trial court committed
reversible error when it denied
Appellant’s motion to suppress illegally seized evidence, namely,
Appellant and the motor vehicle he was operating.
A. Standard of Review
A trial court’s decision on a motion to suppress is subject to a
bifurcated standard of review. Hubert V. State 312 S.W.3d 554, 559 (Tex.
Crim. App. 2010); Carmouche V. State, 10 S.W.3d 323, 327(Tex. Crim.
App. 2000). A trial court’s decision to grant or deny a motion to suppress is
generally reviewed under an abuse of discretion standard. Sheperd V. State,
273 S.W.3d 681, 684 (Tex. Crim. App. 2008). Almost total deference is
given to a trial court’s determination of historical facts, especially if those
determinations turn on witness credibility or demeanor, and review de novo
the trial court’s application of the law to facts not based on an evaluation of
credibility and demeanor. Neal V. State, 256 S.W.3d 264, 281 (Tex. Crim.
App. 2008).
When deciding a motion to suppress evidence, a trial court is the
exclusive trier of fact and judge of the witnesses’ credibility. Maxwell V.
SE, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, a trial
court may choose to believe or disbelieve all or any part of a witness’s
18
testimony. Moreover, if the trial judge makes express findings of fact, the
evidence is viewed in the light most favorable to the trial judge’s ruling and
determine whether the evidence supports those factual findings. Valtierra V.
_§_t_21’t_e, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). When there is not an
express finding on an issue, the appellate court infers implicit findings of
fact that support the trial court’s ruling as long as those findings are
supported by the record. _S_e§ Q.
The prevailing party is entitled to “the strongest legitimate View of the
evidence and all reasonable inferences that may be drawn fiom that
evidence.” State V. Castleber_ry, 332 S.W.3d 460, 465 (Tex. Crim. App.
2011). When all evidence is viewed in the light most favorable to the trial
court’s ruling, an appellate court is obligated to uphold the ruling on a
motion to suppress if that ruling was supported by the record and was correct
under any theory of law applicable to the case. Carmouche 10 S.W.3d at
327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
The appellate court is to review the trial court’s legal conclusions de
novo and uphold the ruling so long as it is supported by the record and
correct under any legal theory applicable to the case. State v. Iduarte, 268
S.W.3d 544, 548 (Tex. Crim. App. 2008).
19
B. The Law on Reasonable Suspicion for a Traffic Stop
Warrantless searches and seizures are per se unreasonable unless they
fall into a recognized exception, and the State has the burden of establishing
an exception to the warrant requirement. Russell V. State, 717 S.W.2d 9-
7,
10 (Tex.Crim.App. 1986). The Court of Criminal Appeals said in
H__ufiy_.
S_t:1_‘tg that in DWI investigatory detentions courts must rely on a totality of
circumstances test as the reasonableness standard. 982 S.W.2d 431, 432
(Tex.Crim.App. 1998).
The State must present evidence to show that sufficient facts existed
to prove that reasonable suspicion existed that a person has engaged in or
soon will be engaging in criminal activity. Martinez V. State 348 S.W.3d
919, 923 (Tex.Crim.App. 201 1). The court is to consider the totality of the
circumstances to determine reasonable suspicion which would include the
content of the information and the reliability of the information. 1_q. The
officer must have specific, articulable facts that establish reasonable
suspicion and show (1) unusual activity, (2) a connection between defendant
and the unusual activity, and (3) that the unusual activity is related to a
crime. I_d. When a 911 caller provides information to a dispatcher but not
20
the caller’s identity, more information is required to be corroborated in order
to increase the level of reliability. I_d. When the caller leaves his identifying
information with the dispatcher, the degree of reliability improves. I_d.
C. Analysis
The Appellant’s motion to suppress the traffic stop, detention, and
evidence should have been granted for two reasons. First, the officer did not
have reasonable suspicion that the offense of driving while intoxicated was
being committed to justify the traffic stop. Second, the concerned citizen
caller never testified that Appellant was the person he believed was
intoxicated in the Henderson Depot. There was no positive identification of
Appellant in trial in order to establish any reliability on the part of the caller.
Regarding the lack of reasonable suspicion, the officer did not observe
any traffic violations by the Appellant in operating the truck. The ofiicer
testified that he solely relied on the information provided to dispatch
by
Scott Lake. The officer never talked to Lake prior to the traffic stop
and did not know the identity of Lake at the time of the stop. (RR 61).
The officer did not even know the license plate number. (RR 29). As such,
it is Appellant’s position that the officer needed more information to
corroborate the information from dispatch. Since the officer did not observe
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any traffic Violations, he needed more reliable information prior to making
the traffic stop. The officer can’t just say he made the traffic for “the safety
of the public.” (RR 62).
The second aspect of the incorrect denial of Appellant’s motion to
suppress concerns Scott Lake’s testimony in trial. At no point did Scott
Lake identify Appellant as the man in the Henderson Depot who smelled of
a strong odor. At no point in his testimony did Scott Lake say that Appellant
was the person he thought might be intoxicated. At no point did Scott Lake
testify that Appellant was the person driving a white Peterbilt. There is no
evidence connecting the person Scott Lake thought might be intoxicated
with the Appellant. Using the terms articulated in the Martinez decision,
there is no evidence connecting Appellant with any unusual activity. As
such, there is legally insufficient evidence at trial to prove that the officer
had reasonable suspicion to justify a traffic stop of Appellant. The State
didn’t ask the right questions and didn’t prove what it needed to prove.
Therefore, the trial court committed error by denying the motion to suppress.
PRAYER
WHEREFORE, Appellant prays that the Order of the trial court
denying Appellant’s Motion to Suppress be reversed and that Appellant be
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acquitted of this charge. Subject to that, Appellant prays that the
trial court’s
error in admitting a prior conviction marked Exhibit Six be reversed and that
the case be remanded for sentencing on a Class A misdemeanor DWI
conviction. Appellant also requests such other and further
relief to which
Appellant may be justly entitled.
S te Bar No.: 24033153
120 S. Broadway, Suite 112
Tyler, Texas 75702
(903) 593-8040
(903)595-5532 fax
CERTIFICATE OF SERVICE
I, the undersigned attorney, do hereby
certify a true and correct copy
of the foregoing instrument was served upon the Rusk County
District
Attorney’s Office by electronic mail and facsimile on this the 215‘
day of
October 21, 2015.
ERS
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), the undersigned attorney certifies that this
brief complies with the length requirements of the Texas
Rules of Appellate
Procedure in that the brief has 5,718 words.
ERS
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