Pierce, Joseph Michael
PD-0651-15
| Tex. | Nov 3, 2015Background
- Appellant Joseph Michael Pierce (pro se, incarcerated) filed a Motion for Rehearing to the Texas Court of Criminal Appeals after the court refused review of his Petition for Discretionary Review (PDR) in PD-0651-15.
- Underlying criminal case involved a traffic stop by a state trooper who testified the stop was for "touching the white line," which he equated with driving on the improved shoulder under Tex. Transp. Code § 545.058(a).
- At a suppression hearing (Jan. 21, 2014) the trial judge denied the motion to suppress but declined to state the reasons or make explicit findings of fact and conclusions of law when the defendant asked why the motion was denied.
- Pierce contends he either properly requested, or implicitly requested, findings on the motion to suppress and that the trial court therefore had a duty to make "essential findings" to permit meaningful appellate review.
- Pierce argues the trooper’s dash-cam and testimony showed only that the vehicle ‘‘touched the line,’’ not that the vehicle drove on the shoulder for a nonexempt reason; he contends the State failed to meet its burden to prove the stop was justified.
- Pierce asserts conflict between the 7th and 12th Courts of Appeals decisions (which treated touching the fog/white line as sufficient) and this Court’s precedent in Lothrop v. State, and asks the Court of Criminal Appeals to rehear the PDR refusal to resolve the issue and remand for findings if needed.
Issues
| Issue | Plaintiff's Argument (Pierce) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether appellant properly requested and preserved a request for trial-court findings on the motion to suppress | Pierce: He asked the judge why the motion was denied at the suppression hearing and thus implicitly requested findings; trial court had duty to ensure findings | State: (implicit) Pierce did not follow procedural requirements for requesting findings; judge’s brief oral ruling sufficed | Court of Criminal Appeals denied PDR; motion for rehearing filed seeking reconsideration (no merits rehearing granted in this filing) |
| Whether trial court’s failure to make findings prevented meaningful appellate review and required remand | Pierce: Absence of findings prevented the court of appeals from reviewing; Cullen and Rule 44.4 require remand for essential findings when request is preserved | State: (implicit) no reversible error or findings not required here; appellate courts can meaningfully review the record | Appellant asks for remand; in this filing the CCA previously refused PDR — relief sought, not granted here |
| Whether touching the fog/white line alone suffices to justify a stop under § 545.058(a) | Pierce: "Touching the line" is not proof of driving on the improved shoulder or that none of the statutory exemptions applied; State bears burden to prove a nonexempt violation | State: (as applied by some courts) observation of a tire touching the fog line can supply reasonable suspicion of driving on the improved shoulder | Conflict alleged between 7th/12th COA decisions (treating touching line as sufficient) and this Court’s Lothrop precedent; PDR refused, so issue unresolved at CCA in this motion |
| Whether the 12th Court of Appeals erred in its treatment of the State’s lack of a reply brief and evaluation of the suppression record | Pierce: 12th COA treated State’s failure to file a reply as confession of error or otherwise failed to remand for findings; appellate review was speculative | State: (implicit) COA’s procedure and conclusion were appropriate based on the record and briefing | Pierce requests CCA intervention; motion for rehearing asks CCA to correct perceived error — CCA had already refused review (relief not granted in this filing) |
Key Cases Cited
- Lothrop v. State, 372 S.W.3d 187 (Tex. Crim. App. 2012) (holding that driving on an improved shoulder is not prima facie an offense and explaining the State’s burden to disprove statutory exceptions)
- State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006) (trial court’s refusal to provide findings can prevent meaningful appellate review and may require remand for findings)
- State v. Dietiker, 345 S.W.3d 422 (Tex. App.—Waco 2011, no pet.) (officer’s observation that a tire crossed the fog line supported reasonable suspicion where record did not show necessity or an applicable exemption)