PD-0982-16
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/23/2016 11:40:18 PM
Accepted 9/26/2016 3:53:20 PM
ABEL ACOSTA
CASE NO. PD-0982-16 CLERK
__________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
__________________________________________________________________
TAYLOR MARTIN KORB, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Petition for Discretionary Review from
The First Court of Appeals
In No. 01-15-00512-CR Affirming the Trial Court’s Judgment in
Cause No. 1980492 from the County Criminal Court at Law Number Three (3)
Harris County, Texas
__________________________________________________________________
APPELANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
DAN KRIEGER COLM A. KEANE
TBN: 24064243 TBN: 24085408
215 East Galveston Street 17225 El Camino Real, Suite 320
League City, Texas 77573 Houston, Texas 77058
(281) 332-7630 Phone (281) 486-8125 x2 Phone
(281) 332-7877 Facsimile (281) 480-0885 Facsimile
dan@kriegerlawfirm.com colm@krieger-ongert.com
ATTORNEYS FOR APPELLANT,
TAYLOR MARTIN KORB
September 26, 2016
ORAL ARGUMENT REQUESTED
IDENTITY OF JUDGES, PARTIES AND COUNSEL
Presiding Judge
The Honorable Natalie Fleming
County Criminal Court at Law Number Three (3)
Houston, Harris County, Texas
Attorneys for Appellee (State of Texas)
Napoleon Wilson Stewart, II (at trial)
Molly Katharine Wurzer (at trial)
Alan Curry (on appeal)
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Attorneys for Appellant
Dan Krieger (at trial and on appeal)
Christopher Morton (at trial)
215 E. Galveston St.
League City, Texas 77573
Colm A. Keane (on appeal)
17225 El Camino Real, Suite 320
Houston, Texas 77058
Appellant
Taylor Martin Korb
ii
TABLE OF CONTENTS
IDENTITY OF JUDGES, PARTIES AND COUNSEL ..................................... ii
TABLE OF CONTENTS .................................................................................... iii
INDEX OF AUTHORITIES ............................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ........................................ 1
STATEMENT OF THE CASE ........................................................................... 1
STATEMENT OF PROCEDURAL HISTORY ................................................ 2
APPELLANT’S GROUNDS FOR REVIEW .................................................... 3
APPELLANT’S FIRST GROUND FOR REVIEW (RESTATED) .................. 4
THE COURT OF APPEALS ERRED IN ACTING AS A FINDER OF
FACT BY INFERRING FACTS UNSUPPORTED BY THE RECORD. .................... 4
APPELLANT’S SECOND GROUND FOR REVIEW (RESTATED) ............. 4
THE COURT OF APPEALS ERRED IN FINDING REASONABLE
SUSPICION TO JUSTIFY AN INVESTIGATORY STOP OF APPELLANT. ............. 4
ARGUMENT AND REASONS FOR REVIEW ............................................... 4
PRAYER FOR RELIEF ..................................................................................... 8
CERTIFICATE OF COMPLIANCE .................................................................. 10
CERTIFICATE OF SERVICE ........................................................................... 10
APPELLANT’S APPENDIX ............................................................................. A
iii
INDEX OF AUTHORITIES
CASES
Crain v. State,
315 S.W.3d 43, 52 (Tex. Crim. App. 2010)………………………………. 7
Korb v. State,
01-15-00512-CR, 2016 WL 2753509 (Tex. App.-Houston [1st Dist.] 2016)
(mem. op., not designated for publication)………………………… 2, 4, 6, 7
Hereford v. State,
339 S.W.3d 111, 119 (Tex. Crim. App. 2011)……………………………5, 6
Pipkin v. State,
114 S.W.3d 649, 652 (Tex. App.—Fort Worth 2003, no pet.) ……………. 8
Romero v. State,
800 S.W. 2d 539, 544 (Tex. Crim. App. 1990…………………………….. 6
Taflinger v. State,
414 S.W.3d 881, 884 (Tex.App.–Houston [1st Dist.] 2013, no pet.) ......... 8, 9
Terry v. Ohio,
392 U.S. 1, 21–22 (1968)………………………………………………….. 7
United States v. Sokolow,
490 U.S. 1, 7 (1989)………………………………………………………. 7
RULES
Tex. R. App. P. 68.2 ……………………………………………………………… 2
Tex. R. App. P. 66.1 ……………………………………………………………… 3
Tex. R. App. P. 66.3(f) …………………………………………………………… 6
iv
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument as it will assist the Court in developing the
issues and fashioning the proper relief. Oral argument would be of substantial
assistance to this Court because case presents an important issue regarding the role
of the court of appeals in inferring the trial court’s findings of fact in a motion to
suppress and a police officer’s reasonable suspicion for an investigative detention.
STATEMENT OF THE CASE
Mr. Taylor Martin Korb (“Appellant”) was charged with Driving While
Intoxicated, a class B misdemeanor. (C.R. at 5).1 Appellant filed a motion to
suppress the traffic stop on March 13, 2015. (C.R. at 23-24). The trial court heard
Appellant’s motion to suppress on April 28, 2015 and denied the motion to suppress
the traffic stop. (III R.R. at 42). A jury trial commenced immediately after the
suppression hearing and on the same date. (C.R. at 27-32). Defendant was convicted
of Driving While Intoxicated on April 29, 2015 and sentenced by the Court to one
hundred eighty days in the Harris County Jail, probated for twelve months and a
$500 fine. (C.R. at 41-42).
Appellant appealed his conviction and sentence to the First Court of Appeals
1
“C.R.” Will be used to reference the Clerk’s Record. “R.R.” will be used to reference the
Reporter’s Record from Appellant’s trial.
1
in Case No. 01-15-00512-CR, and the Court affirmed the trial court’s judgment on
May 10, 2016.
STATEMENT OF PROCEDURAL HISTORY
The order of the trial court was affirmed by the First Court of Appeals in an
opinion delivered May 10, 2016. Korb v. State, 01-15-00512-CR, 2016 WL
2753509 (Tex. App.—Houston [1st Dist.] 2016)(mem. op., not designated for
publication). The motion for rehearing was denied on July 25, 2016, and the motion
for en banc reconsideration was denied on July 25, 2016. Appellant’s Motion for an
extension of time to file the Petition for Discretionary Review was granted on
August 25, 2016. This Petition for Discretionary Review will be filed on or before
the extended deadline of September 23, 2016, pursuant to Tex. R. App. P. 68.2.
The Appellant presents two (2) grounds for review before this Honorable
Court.
2
CASE NO. PD-0982-16
__________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
__________________________________________________________________
TAYLOR MARTIN KORB, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
APPELANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, TAYLOR MARTIN KORB, Appellant in the above-styled
and numbered cause of action, by and through counsel of record, Dan Krieger, and
pursuant to Tex. R. App. P. 66.1, respectfully urges this Court to grant discretionary
review of this cause, and in support thereof would show unto this Honorable Court
the following:
GROUNDS FOR REVIEW
1. The Court of Appeals Erred In Acting As A Finder Of Fact By Inferring
Facts Unsupported By The Record
2. The Court of Appeals Erred In Finding Reasonable Suspicion To Justify
An Investigatory Stop of Appellant
3
APPELLANT’S FIRST GROUND FOR REVIEW (RESTATED)
1. The Court of Appeals Erred In Acting As A Finder Of Fact By
Inferring Facts Unsupported By The Record
APPELLANT’S SECOND GROUND FOR REVIEW (RESTATED)
2. The Court of Appeals Erred In Finding Reasonable Suspicion To
Justify An Investigatory Stop of Appellant
ARGUMENT AND REASONS FOR REVIEW
Appellant was convicted of Driving While Intoxicated and sentenced to
community supervision. Appellant sought relief at trial in the form of a motion to
suppress because no articulable facts to establish reasonable suspicion for the stop
of Appellant’s vehicle to take place were presented. The trial court erred in denying
his motion to suppress and did not make any findings of fact. The facts the Court of
Appeals inferred were not supported by the record or any findings of fact to establish
reasonable suspicion. Instead, the Court created facts unsupported by the record and
found evidence of burglaries and criminal mischief in the area where Appellant’s
vehicle was stopped and linked it to Appellant. Korb v. Texas, Slip Op. at 5-6.
A. PRECEDENT REQUIRES A REVIEWING COURT TO INFER FACTUAL FINDINGS
AS LONG AS THEY ARE SUPPORTED BY THE RECORD
When a trial court hears and rules upon a Motion to Suppress and makes no
findings of historical fact, the appellate court will infer factual findings implicit in
4
the trial court’s conclusion as long as the implied findings are supported by the
record. Hereford v. State, 339 S.W.3d 111, 119 (Tex. Crim. App. 2011).
During the Motion to Suppress hearing, Officer Galvan of the Pasadena Police
Department testified he was on-duty, working patrol, and sent to a residential
neighborhood in Pasadena in regards to a 911 caller reporting a small, light-colored
truck driving in the area on August 28, 2014 at approximately midnight. (III R.R. at
12). Officer Galvan stated he was familiar with the neighborhood and criminal
mischief and burglaries occur there. (III R.R. at 9). No evidence was presented
regarding the officer’s familiarity with these crimes with respect to the area, nor the
number, dates, times, types, or proximity of the alleged crimes to the traffic stop.
Officer Galvan testified that at the time of this call no criminal activity was reported
and no illegal activity was reported. (III R.R. at 22, 27).
Officer Galvan testified that he arrived in the area and saw the Appellant
driving a light colored truck and using a cellular phone. (III R.R. at 13-14). Officer
Galvan reported that the 911 caller was identified by name and phone number. (III
R.R. at 13). Officer Galvan testified that caller reported he had seen the vehicle three
times over a period of ten minutes, with no other report of any other type of activity,
criminal or otherwise. (III R.R. at 22). The caller was not presented as a witness at
the suppression hearing or at trial.
5
The Court of Appeals improperly inferred factual findings that were not
supported by the record and acted as the fact finder by making its own finding of
fact to affirm the trial court’s denial of the motion to suppress. The Court of Appeals
found that Officer Galvan had “knowledge of facts which, given the totality of the
circumstances, raised a reasonable suspicion that appellant was engaging or about to
engage in criminal acts, such that the officer was justified in making the
investigatory stop.” Korb v. State, Slip Op. at 6. By Officer Galvan’s own
testimony, he did not have enough information to have a reasonable suspicion, solely
based on Appellant driving around, that Appellant had committed a crime or was
going to commit a crime. (III R.R. at 29).
On appeal, the appellate court should not engage in its own factual review,
but decide whether the trial judge’s fact findings are supported by the record.
Romero v. State, 800 S.W. 2d 539, 544 (Tex. Crim. App. 1990). If the trial court did
not make fact findings, its implied findings inferred by the Court of Appeals must
be supported by the record. Hereford at 119.
By making its own finding of fact, the Court of Appeals has so far departed
from the accepted and usual course of judicial proceedings to call for an exercise of
the Court of Criminal Appeals power of supervision. See Tex. R. App. P. 66.3(f).
Accordingly, this petition should be granted and the case remanded to the Court of
Appeals to conduct a review limited to the trial court’s record.
6
B. THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND PRECEDENT
REQUIRE REASONABLE SUSPICION FOR A VALID WARRANTLESS
DETENTION OF A PERSON
Under the Fourth Amendment, a warrantless detention of a person that
amounts to less than a full-blown custodial arrest must be justified by a reasonable
suspicion. Terry v. Ohio, 392 U.S. 1, 21–22 (1968).
A police officer has reasonable suspicion to detain a person if he has specific,
articulable facts that, combined with rational inferences from those facts, would lead
him reasonably to conclude that the person detained is, has been, or soon will be
engaged in criminal activity. United States v. Sokolow, 490 U.S. 1, 7 (1989); Crain
v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).
This standard is an objective one that disregards the actual subjective intent
of the arresting officer and looks, instead, to whether there was an objectively
justifiable basis for the detention. Here, the Court of Appeals erred by creating its
own finding of fact by looking into the mind of the officer and discovering
“knowledge of facts, which, given the totality of the circumstances, raised a
reasonable suspicion that appellant was engaging or about to engage in criminal
acts.” Korb v. State, Slip Op. at 5-6.
This Honorable Court has held that “[n]either time of day nor level of criminal
activity in an area are suspicious in and of themselves; the two are merely factors to
be considered in making a determination of reasonable suspicion.” Crain v. State at
7
53. This Court has further found that those factors do not constitute reasonable
suspicion. Id.
Nothing in the record shows Appellant was engaged in suspicious or illegal
activity and there was no reasonable suspicion; the caller reported activity, but not
criminal activity. Officer further testified that he would need further articulable facts
to determine if a crime was going to be committed. (III R.R. at 29). The Appellant
did not drive erratically, he did not look into vehicles, he did not pull into residential
driveways and leave – he simply drove by. (III R.R. at 27).
The First Court of Appeals further improperly applied the analysis in Pipkin
to this matter despite clearly distinguishable facts involving clear criminal activity
versus no report of any type of criminal activity. In Pipkin, the caller observed per
se illegal activity in that Pipkin was obstructing traffic by driving too slowly and
being bent over lighting a crack pipe to smoke cocaine. Pipkin v. State, 114 S.W.3d
649, 652 (Tex. App.—Fort Worth 2003, no pet.). In contrast here, no illegal activity
was reported in this matter - simply a person driving down the street. This case is
also fundamentally and factually distinguishable from the holdings in both Pipkin
and Taflinger v. State. In Taflinger, there was a specific report of wrongdoing – a
store clerk, well-known to the officer, observed an intoxicated person driving away
from the store. Taflinger v. State, 414 S.W.3d 881, 884 (Tex.App.–Houston [1st
Dist.] 2013, no pet.). The officer observed the driver driving immediately after the
8
report and believed in good faith that he observed the driver commit a traffic
violation. Id. at 886. Here, in contrast, there was no report of intoxication, erratic
driving, or other type wrongdoing – simply driving.
There was no illegal or suspicious activity committed by the Appellant
reported by the 911 caller apart from the Appellant simply driving down the street
three times over the period of 10 minutes. At trial, the arresting officer in this matter
made conclusory statements that Appellant’s actions were suspicious, but there were
no specific articulable facts that reasonably support these claims, despite the officer
having numerous opportunities to articulate such facts. Furthermore, there were no
specific descriptions of the vehicle, driver, or license plate of the vehicle that would
affirmatively link the vehicle Appellant was driving to the vehicle which was
described by alleged caller.
PRAYER FOR RELIEF
Appellant prays this Honorable Court grant this Petition for Discretionary
Review. Following the grant of review, Appellant prays that the judgment of the
Court of Appeals be reversed and a new trial ordered, or the case remanded for
further review.
9
Respectfully submitted,
LAW OFFICE OF DAN KRIEGER
215 E. Galveston St.
League City, Texas 77573
(281) 332-7630 Tel.
(281) 332-7877 Fax
By: /s/ Dan Krieger
Dan Krieger
State Bar No. 24064243
dan@kriegerlawfirm.com
Colm A. Keane
State Bar No. 24085408
colm@krieger-ongert.com
Attorneys for Appellant
10
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word and contains 2,570 words, and 24 pages, as determined by the computer
software's word-count function, excluding the sections of the document listed in
Texas Rule of Appellate Procedure 9.4(i)(1). This document complies with the
typeface requirements of rule 9.4(e), as it is printed in a conventional 14-point
typeface with footnotes in 12-point typeface.
/s/ Dan Krieger
Dan Krieger
CERTIFICATE OF SERVICE
A true and correct copy of the above and foregoing Appellant’s Petition for
Discretionary Review has been forwarded to the following persons, in accordance
with the TEXAS RULES OF APPELLATE PROCEDURE, on the 23rd day of
September, 2016:
Alan Curry
Harris County District Attorney’s Office
1201 Franklin Street
Houston, Texas 77002
/s/ Dan Krieger
Dan Krieger
11
____________________________
APPELLANT’S APPENDIX
_____________________________
LIST OF DOCUMENTS
1. First Court of Appeals’ Opinion of May 10, 2016 ……………………TAB 1
A
TAB 1
B
C
D
E
F
G
H