Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/14/2015 12:29:44 AM JEFFREY D. KYLE Clerk No. 03-14-00806-CR THIRD COURT OF APPEALS 4/14/2015 12:29:44 AM JEFFREY D. KYLE 03-14-00806-CR AUSTIN, TEXAS *1 ACCEPTED CLERK IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS
DELANE DUMAS
Defendant – Appellant vs.
THE STATE OF TEXAS Plaintiff – Appellee On Appeal from the County Court at Law Number Five of Travis County, Texas Hon. Nancy Wright Hohengarten Presiding Trial Court Cause No. C-1-CR-13-219171 APPELLANT’S REPLY BRIEF Gregory Sherwood Attorney P.O. Box 200613 Austin, Texas 78720-0613 (512) 484-9029 Email: gsherwood@mail.com State Bar No. 18254600 Court-Appointed Attorney on Appeal for Delane Dumas *2 Table of Contents
Table of Contents ............................................................................................ i
Index of Authorities ...................................................................................... ii
Conclusion and Prayer for Relief ................................................................... 4
Certificate of Service ..................................................................................... 5
Certification of Compliance ........................................................................... 5
i
Index of Authorities
Rules
Tex. R. App. P. 9.4(i)(1) ................................................................................ 5
Tex. R. Evid. 403 ....................................................................................... 2, 3
ii
No. 03-14-00806-CR IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS
DELANE DUMAS
Defendant – Appellant vs.
THE STATE OF TEXAS Plaintiff – Appellee On Appeal from the County Court at Law Number Five of Travis County, Texas Hon. Nancy Wright Hohengarten Presiding Trial Court Cause No. C-1-CR-13-219171 APPELLANT’S REPLY BRIEF
TO THE HONORABLE THIRD COURT OF APPEALS:
NOW COMES DELANE DUMAS, who files Appellant’s Reply
Brief, and respectfully states as follows:
Footnote 2 at pages 5-6 (pdf 10-11) of the State’s Brief states in part
that appellant’s counsel has mistaken the female voice at the beginning of
State’s Ex. 4 as a second 911 caller when it is actually the voice of a Hays
County dispatcher transferring a 911 call to the Travis County dispatcher.
This attorney has listened again to State’s Ex. 4, which starts with the male
Travis County 911 operator announcing, “Austin 911, do you need police,
fire or EMS?” and a female voice responding, “Hays County with a transfer
for a reckless driver,” then identifying the vehicle’s location. Appellant’s
counsel now realizes that this voice is a Hays County dispatcher, not a
second 911 caller, and apologizes for the error. Any references in
Appellant’s Brief to a second or female 911 caller should actually be read as
a reference to a Hays County dispatcher. This error does not change the fact,
however, that the jury knew more about Mr. Dumas’ driving than the
arresting officer did that evening, since the officer did not hear the text of the
Hays County dispatcher’s message that the jury heard. Appellant’s Brief at
11 (pdf 19). State’s Ex. 4 should not have been admitted at trial.
The State argues that Mr. Dumas’ trial counsel did not make a Tex. R.
Evid. 403 objection to State’s Ex. 4 because his statement of “unfair
prejudice” was pertaining to a confrontation objection only, and therefore
this error is unpreserved. State’s Brief at 7-9 (pdf 12-14). Appellant
respectfully disagrees, and contends that trial counsel’s sentence, “I think
there is a very high danger of unfair prejudice, given the fact that these
people are going to give just one rendition, without the jury hearing the
whole story[,]” RR vol. 3, p. 59 (pdf 61), l. 3-16, is not limited to a
confrontation objection only, but can also be interpreted as a Rule 403
objection.
Finally, the State’s Brief argues at pages 21-22 (pdf 26-27) that “the
detaining officer had reasonable suspicion independent of the detailed
information relayed in the 9-1-1 call[,]” because “[Officer] Eberhardt saw
Dumas swerving within his own lane, failing to use a turn signal, and
inexplicably exiting and re-entering the highway late one Saturday night[,]”
citing RR vol. 3, pp. 22-23. Failing to use a turn signal was not a traffic
violation for the reasons stated by the trial court, and discussed at pages 20-
21 (pdf 28-29). The State’s Brief fails to acknowledge this mistake of law
by Officer Eberhardt. As for the argument that appellant “inexplicably
exit[ed] and re-enter[ed] the highway late one Saturday night,” this is easily
explained by a driver taking an exit from the highway too soon, and then re-
entering the highway to take a later exit.
The traffic stop in this case was extremely weak, as the traffic
violation Officer Eberhardt believed had occurred did not, because a turn
signal was not required when appellant re-entered the highway from the
dedicated lane just past the Holly Street exit, and because appellant used his
turn signal to exit the highway at the Holly Street exit. Officer Eberhardt did
not observe appellant driving 90 miles per hour as stated in the 911
transferred call on State’s Ex. 4. The portion of the video showing appellant
driving within one lane, but never crossing that lane into another lane,
cannot be a basis for the stop, for that is not a traffic violation. The traffic
stop was invalid, and the video evidence obtained as a result of the stop – the
field sobriety tests, the search of the vehicle which revealed an almost empty
flask containing drops of liquid smelling like alcohol, and appellant’s
statements after the stop, should not have been presented to the jury.
Conclusion and Prayer for Relief WHEREFORE, PREMISES CONSIDERED, appellant DELANE
DUMAS respectfully prays that this court sustain one or both of the issues
presented, reverse the judgment of conviction and sentence, and remand this
case to the trial court for further proceedings.
Respectfully submitted, /s/ Gregory Sherwood GREGORY SHERWOOD Attorney P.O. Box 200613 Austin, Texas 78720-0613 (512) 484-9029 Email: gsherwood@mail.com State Bar No. 18254600 Court-Appointed Attorney on Appeal for Delane Dumas Certificate of Service
I hereby certify that a true copy of this document was served on April
14, 2015 by email upon Assistant County Attorney Giselle Horton, Travis
County Attorney’s Office, at the following email address:
giselle.horton@traviscountytx.gov.
/s/ Gregory Sherwood Certification of Compliance According to the WordPerfect program used to create this document,
there are 686 words in this brief, excluding the portions listed in Tex. R.
App. P. 9.4(i)(1).
/s/ Gregory Sherwood