Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 5/26/2015 9:29:00 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-14-00221-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 5/25/2015 2:59:31 PM DEBBIE AUTREY CLERK
No . 06 - 14 - 00221 - CR
COURT OF APPEALS
SIXTH DISTRICT OF TEXAS
TEXARKANA
Brian Woodard
Appellant
vs
The State of Texas
Appellee
________________________________________________________
APPEAL FROM THE 254 TH DISTRICT COURT OF HUNT
COUNTY , TEXAS
RICHARD BEACOM, PRESIDING
__________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________
Charles E. Perry
State Bar No. 15799700
1101 Main Street
P.O. Box 720
Commerce, Texas 75429
Tel. 903-886-0774
Fax. 903-886-2043
Cell. 940-613-8439
Attorney for Mr. Woodard
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
BRAIN EUGENE WOODARD
BUSTER COLE UNIT, 3801 SILO ROAD ROAD
BONHAM, TEXAS 75418
ATTORNEY FOR APPELLANT
On Appeal:
Charles E. Perry
State Bar of Texas No. 15799700
1101 Main Street
Commerce, Texas 75429
ATTORNEY FOR THE STATE OF TEXAS
G. Calvin Grogan
Assistant District Attorney Hunt County
2500 Lee Street,
Greenville, Texas 75440
ii
Table of Contents
Identity of parties and counsel……………………….............................................ii
Table of Contents…………………………………………………………………iii
Index of Authorities……………………………………………………………….iv
I.Statement of the Case…………………………………………………………….1
II.Statement Regarding Oral Argument……………………………………………1
III.Issues Presented……………………………………………………………… 1-2
IV.Statement of Facts………………………………………………………………2
V.Summary of the Argument…………………………………...………………3&4
VI.Argument and Authorities………………………………………………………4
1.The trial court committed reversible error in admitting the testimony of officer
Zane Rhone with respect to the stop and search for drugs since there was no
probable cause to stop the Appellant and the automobile the Appellant was driving.
2.The trial court committed reversible error in admitting and considering the
testimony of officer Zane Rhone with respect to the stop and search for drugs after
he finished or should have finished his duties with respect to the traffic citation for
which the Appellant was stopped.
VII. Conclusion and Prayer………………………………………...……………..8
Signature……………………………………………………………………….… 8
Certificate of Service…………………………………………………………...….9
iii
Index to Authorities
Cases :
Caballas v.United States, 405 U.S. 405(2005)……………………………..….6&7
Delaware v.Prause, 440 U.S. 675 at 686………………………………….………7
Florida v. Royer, 460 U.S. 491, 500 (1983)………………………………………6
Ford v. State, 158 S.W.3d 488(Tex.Crim.App.2005)………………………….….5
Rodriguez v. United States, 575 U.S. ___ (2015)………………………..……4&8
Terry v. Ohio, 392 U.S. 1(1968……………………………………………..……6
United States v. Sharp,470 U.S. 675 at 686……………………………………6&7
United States v. Smith, 799 F.3d 704, 708(11 th Cir.1986)……………………..…6
Walters v. State, 247 S.W. 3d 204, 218(Tex. Crim. App. 2007)………………….4
Statutes :
Ohio Revised Code section 4501;4503.19-22;4513.02………………………3&6
Texas Transportation Code section 545. 062…………………………………… 5
504.945………….…………........................................................................2
United States Constitution
Article IV section 1-Full Faith and Credit Clause………………………..……3&6
Fourth Amendment-Unreasonable Search and Seizure………………………..…8
iv
I. STATEMENT OF THE CASE This case involves Brian Eugene Woodard who
was charged and indicted with the felony offense of possession of a controlled
substance, namely cocaine, in an amount of 400 grams or more .(CR 8). He was
tried before the 196 th District Court of Hunt County, Texas without a jury
beginning on October 20, 2014, 2014(See RR, V1-8). He was found guilty and
sentenced to 40 years in the Institutional Division of the Texas Department of
Criminal Justice on December 4, 2014. (CR 93-96). At trial, the defense raised and
completed the requirements for a necessary defense. The trial judge denied this
request. This appeal follows.
II. STATEMENT REGARDING ORAL ARGUMENT
The Appellant does not request Oral Argument.
III. ISSUES PRESENTED
The issues presented for review are:
1. The trial court committed reversible error in admitting the testimony of officer
Zane Rhone with respect to the stop and search for drugs since there was no
probable cause to stop the Appellant and the automobile Appellant was driving.
2. The trial court committed reversible error in admitting and considering the
testimony of officer Zane Rhone with respect to the stop and search for drugs after
he finished or should have finished his duties with respect to the traffic citation for
which the Appellant was stopped.
IV. STATEMENT OF THE FACTS
Officer Zane Rhone was working on I-30 in Greenville, Hunt County, Texas when
he first observed the Appellants car. (RR, p.11/19-25; p.12/1-25)The Appellant
was stopped by DPS officer Zane Rhone for following to close and not being able
to read the name of the State on the license plate (RR p. 12/21-25;p.13/1-4;13/5-
12. Officer Rhone testified the law prohibits more than half of the name of the state
from being obscured.(RR p. 13/17-22). Officer Rhone testified that the Appellant
was following to close to come to a stop to keep from colliding.(RR p.13/23-
25;p.14/1-2;14/3-25) His testimony placed the Appellant at 40 feet from the car in
front when it should have been 157 feet.(RR p. 16/1-5). Officer Rhone testified
later that there was nothing in his official report about stopping the Appellant for
following to close to the car in front.(RRp.65/22-25;p. 66/1-5; p.66/6-14). Officer
Rhone testified that while he was on the side of the road he did not observe the
Appellant following to close or his license plate being obstructed. (RR p.62/7-
22). Texas Transportation Code sec.504.945. He testified that he started up after the
Appellant because he was curious as to two clean cars that did not have Texas
plates.(RR, 63/2-9). He testified that when he pulled on to the road because the car
was clean this was not probable cause to stop the Appellant(RR.p.79/17-25; 80/1-
6).When officer Rhone stopped the Appellant he could smell air freshner and the
car was clean (RR p.17/16-22;18 p.18/2-5). His testimony was that after the stop
he could see that the plates were from Ohio (RR. P.16 /15-21. Officer Rhone
testified that the Appellant said that the license plate bracket came from the dealer
the way it was.(RR p. 51/5-25; 52/1-5). Appellant grandfather Mack Woodard
testified that he bought the car in 2013 and that the license plate frame came from
the dealership where it was installed.(RR. P. 101/ 2-25).
While talking to the Appellant officer Rhone testified that he was getting his
warning started.(RR. P. 25/ 11-15). Officer Rhone had testified while talking to the
Appellant he told the Appellant that he would get a warning but he said at that time
he had not written the warning.(RR. P.20/15-180).
V. SUMMARY OF THE ARGUMENT
A. The Appellant had the right to proceed down Interstate 30 in Hunt County,
Texas free from a stop by the Texas Department of Public Safety since the State of
Texas should recognize Ohio Revised Statutes 4501 et. seq. which allows and does
not prohibit the type of bracket placed on the vehicle Appellant was driving by the
dealer and used to secure the Appellants Ohio license plate under Article 4 section
1 of the “ full faith and credit clause” of the United States Constitution. The stop of
the Appellant was unreasonable and unreasonably pretextual.
VI. B. Appellant was detained and question beyond the reasonable time it took or
should have taken to issue a warning ticket for what the Texas Department of
Public Safety said was a violation of traveling to close to the car in front and an
obstructed license plate under Texas law and thus any and all contraband as a
result of the stop and search should have been suppressed. Rodriquez v. United
States , 575 U.S. ___(2015)
VII. ARGUMENT AND AUTHORITIES
A. The standard for review as to whether the trial court erred in admitting or
denying to admit evidence is a 2007 case styled Walters v. State , 247 S.W. 3d
204,217(Tex. Crim. App. 2007) where the court laid out the principle that a reversal
of a case cannot be had from a trial court’s decision to either admit or deny to admit
evidence unless the trial court decision lies “outside the zone of reasonable
disagreement”.
The Appellant was stopped by DPS officer Zane Rhone for following to close and
not being able to read the name of the state on the license plate(RR p.12/21-25;p.
13/1-4;13/ 5-12. Officer Rhone testified that the Appellant was following to close to
keep to come to come to a stop from colliding.(RR p. 13/23-25; p.14/1-2; 14/3-
25.His testimony placed the Appellant at 40 feet from the car in front when it
should have been 157 feet(RR p.16/1-5.However officer Raine further testified that
there was nothing in his official report of the incident at bar about the Appellant
following to close to the car in front(RR p.65/ 22-25; p.66/1-5;66/ 6-14). He also
testified that while he was on the side of the road he did not observe the Appellant
following to close or his license plate being obstructed.(RR p. 62/7-22). The state
therefore did not sustain their burden with respect to following to close as probable
cause to stop the Appellant under Texas Transportation Code section 545.062. In
Ford v State, 156, S.W.3d 488 (Tex. Crim. App. 488, 493-494) the court held that
there had to be more than such statements of conclusion in order to justify a stop for
the reason of following to close.
Officer Raine testified that he started up to follow the Appellant because he
was curious as to two clean cars that did not have Texas plates.(RR p. 63/2-9). The
officer testified further that he pulled upon the road because the car was clean but
this was not probable cause to stop the Appellant (RR p. 79/ 17-25; 80/1-6). The
officer went on to testify that after pulling the Appellant over he could see that the
license plate was OHIO. According to officer Raine the Appellant told him that the
license plate holder plate came the way it was from the dealer.(RRp.51/5-25; 52/1-
5). Appellants grandfather Mack Woodard confirmed this by testifying that the
license plate frame came from the dealer where it was installed.(RRp.101/ 2-25).
Under Ohio Revised Statutes sections 4501; 4503.19-22;4513.02 there are no
obstructive plate restrictions on Ohio license plates dealing with holder or frame
and the Ohio law was complied with at the dealership(RR p.51/5-25;52/1-5). When
considering the evidence from Officer Raine as well as the Appellants grandfather
Mack Woodard the Appellants argues that the state of Texas should be obligated to
follow Ohio law under the “ full faith and credit clause ” of the United States
Constitution. In determining when an investigative stop is unreasonably pretextual,
the proper inquiry is not whether the officer could validly have made the stop but
whether the officer under the same circumstances a reasonable officer would have
made the stop in the absence of an invalid purpose. United States v. Smith , 799 F2d
704, 708( 11 th Cir. 1986).When the testimony and reasoning of officer Raine is
considered in its entirety the stop is and was unreasonably pretextual and thus
unreasonable.
B. The court erred in admitting and considering the evidence of the search as well
as the contraband. The stop in the instant case was much like the stop in Terry v.
Ohio , 392 U.S. 1 (1868). In the case at bar we are dealing with the tolerable
duration of a police inquiry in a traffic stop context as determined by the seizure’s
mission—to address the traffic violation that warranted the stop. Caballes v.
United States, 405 U.S. 405 at 407. In United States v. Sharp, 470 U.S
675,685(1985); Florida v. Royer , 460 U.S. 491,500(1983).Where the scope of the
detention must be carefully tailored to the underlying justification. This is only
because the purpose of the stop may last longer than necessary to effectuate the
purpose. This was not done in the case at bar. Officer Zane Raine of the DPS when
talking to the Appellant told the Appellant he would be getting a warning but had
not yet written out the warning.(RR. P. 20/15-18). Later while talking to the
Appellant officer Raine got the warning started.(RR. P. 11-15). Officer Raine had
ample time to complete the warning but did not do so. The authority for officer
Raine’s seizure of the contraband ended before he searched and seized the
contraband because of his delay in completing the task incident to the issuance of
the traffic warning ticket. The case at bar is similar to where the court said in
United States v. Sharp ,470 U.S. 675 at 686 where the court said that the authority
for the seizure ends when the tasks tied to the traffic infraction are—or reasonably
should have been completed. The fact that officer Raine noticed that the car was
clean of smelled of air freshner (RR. P.17/15-22;p.18/ 2-5) does not justified a
prolonged stop time wise. Officer Raine admitted so as he pulled unto the road
when he saw the Appellant’s vechile.(RR. 79/17-25); 80/1-6). The court laid out in
Caballes , 543 U.S. at 408 that beyond determining whether to issue a traffic ticket,
an officer’s mission includes “ordinary inquires incident to the traffic stop. These
were set out in Delaware v. Prause , 440 U.S. 648, 659-660(1979) and included
inquires involving checking driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the automobile’s
registration and proof of insurance.
In the case at bar all this was done and there was no reason or probable cause
for delay to justify a search and seizure of contraband. For these reasons the
contraband evidence should have been suppressed and not admitted into evidence
and considered by the court under the 4 th Amendment to the United States
Constitution as well as the case of Rodriguez v. United States , 575 U. S. ___(2015).
VIII .
Conclusion and Prayer
For the reasons stated in the Appellants Brief the Appellant requests this Court to
REVERSE the conviction and sentence of the defendant Brian Woodard and order
an acquittal or in the alternative remand the case to the trial court for a new trial.
Respectfully submitted,
By:/s/Charles E. Perry
1101 Main Street
Commerce, Texas 75428
State Bar No. 15799700
Tel:903-886-0774
Fax:903-886-2043
CERTIFICATE OF COMPLIANCE WITH T.R.A.P.9.4(1)(3)
Relying on Microsoft Word count feature used to create the Reply Brief of the
Appellant, I certify that the number of words contained in this brief is 2303 and the
typeface used is 14 font.
Certificate of Service
I certify on the 25th day of May, 2015, a true and correct copy of the foregoing
was delivered by email and to counsel for the state of Texas, Hunt County District
Attorney’s Office at the Hunt County Courthouse located at 2500 Lee Street in
Greenville, Hunt County, Texas by Charles E. Perry, Counsel for the defendant
Brian Woodard.
/s/ Charles E. Perry