Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/30/2015 8:17:28 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00807-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 3/30/2015 8:17:28 AM CHRISTOPHER PRINE CLERK APPELLATE COURT NO. 01-14-00807-CR IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT
OF THE STATE OF TEXAS AT HOUSTON
ALLISON LEIGH CAMPBELL,
Appellant vs.
THE STATE OF TEXAS,
Appellee.
________________________________________________________
TRIAL CAUSE NO. 1923909 FROM HARRIS COUNTY CRIMINAL COURT AT LAW NO. 12 Honorable ROBIN BROWN, Presiding ________________________________________________________
APPELLANT’S RESPONSE TO APPELLEE’S BRIEF ________________________________________________________
PAUL MEWIS ATTORNEY FOR APPELLANT 4202 Windy Chase Lane Katy, Texas 77494-1071 281.392.2306 (telephone) 281.392.7203 (facsimile) STATE BAR NO. 13986500 ORAL ARGUMENT IS REQUESTED
IDENTIFICATION OF THE PARTIES A complete list of the names of all interested parties
is provided below:
Counsel for the State:
DEVON ANDERSON – District Attorney of Harris County
KIMBERLY APERAUCH STELTER – Assistant District Attorney on appeal
Appellate Division
Harris County District Attorney’s Office 1201 Franklin, Suite 600
Houston, Texas 77002-1923 Appellant or criminal defendant:
ALLISON LEIGH CAMPBELL
Counsel for Appellant:
PAUL MEWIS, Attorney
Texas Bar Card No. 13986500 4202 Windy Chase Lane
Katy, Texas 77494-1071
713.857.7003 (cell)
281.392.2306 (office)
281.392.7203 (facsimile)
paul@mewislaw.com (e-mail) Trial Judge:
HON. ROBIN BROWN – Presiding Judge ii
TABLE OF CONTENTS Page IDENTIFICATION OF THE PARTIES ....................... -ii-
INDEX OF AUTHORITIES ................................ -iv-
RESPONSE TO APPELLEE’S ARGUMENTS ..................... -2-
CONCLUSION .......................................... -21-
CERTIFICATE OF SERVICE .............................. -22-
iii *4 INDEX OF AUTHORITIES Cases Page
Boykin v. State ,
818 S.W.2d 782 (Tex.Crim.App. 1991) ............... -18-
Brenan v. State ,
140 S.W.3d 779 (Tex.App.--Houston [14 th Dist.]
2004, pet ref'd) .............................. -2-, -3-
Cashin v. State ,
Nos. 14-03-01140-CR, 14-03-1141-CR, 2005
WL 975663(Tex.App.--Houston [14 th Dist.]
Apr. 28, 2005, no pet.)(mem. op., not
designated for publication) ....................... -16-
Davis v. State ,
947 S.W.2d 240 (Tex.Crim.App. 1997) ............... -19-
Kothe v. State ,
152 S.W.3d 54 (Tex.Crim.App. 2004) ................ -19-
Lauderback v. State ,
789 S.W.2d 343 (Tex.App.--Fort Worth 1990,
pet ref'd) ........................................ -16-
Morrison v. State ,
71 S.W.3d 821 (Tex.App.--Corpus Christi
[13 th Dist.] 2002) ................................ -17-
Ohio v. Robinette ,
519 U.S. 33 (1996) ................................ -19-
Windham v. State ,
No. 14-07-00193-CR, 2008 WL 2169918
(Tex.App.--Houston [14 th Dist.] May 22, 2008,
pet ref'd) ........................................ -16-
iv *5 INDEX OF AUTHORITIES CASES: PAGE
York v. State ,
342 S.W.3d 528 (Tex.Crim.App. 2011) ............... -18-
AMENDMENTS:
F OURTH A MENDMENT ....................................... -19-
TREATSIES:
6 Michael B. Charlton ,
Texas Practice: Texas Criminal Law 24.4 (1994) .... -17-
STATUTES:
T EX .P ENAL C ODE , Section 6.03 .......................... -11-
T EX .P ENAL C ODE , Section 42.03 ........ -9-, -10-, -11-, -13-
T EX .P ENAL C ODE , Section 42.03(b) ...................... -10-
v *6 APPELLATE COURT NO. 01-14-00807-CR IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT
OF THE STATE OF TEXAS AT HOUSTON
ALLISON LEIGH CAMPBELL,
Appellant vs.
THE STATE OF TEXAS,
Appellee.
________________________________________________________
TRIAL CAUSE NO. 1923909 FROM HARRIS COUNTY CRIMINAL COURT AT LAW NO. 12 Honorable ROBIN BROWN, Presiding ________________________________________________________
APPELLANT’S RESPONSE TO APPELLEE’S BRIEF ________________________________________________________
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF
APPEALS:
Comes now ALLISON LEIGH CAMPBELL , hereinafter referred
to as the Appellant, and submits this Brief in Response
to Appellee’s Brief, filed on March 11, 2015, with the
Clerk of the Court of Appeals for the First Judicial
District of the State of Texas, at Houston.
RESPONSE TO APPELLEE’S ARGUMENT I.
The Appellee, in its Brief herein, begins its
arguments with the following: “Appellant has failed to
present any issue for review regarding the trial court’s
overruling of her motion to suppress because she has not
established what, if any, evidence was obtained as a
result of Officer Pena’s action.”
The State relies on Brennan v. State , 140 S.W.3d 779
(Tex.App. – Houston [14 th Dist.] 2004, pet ref’d):
holding global request to suppress ‘all
evidence seized or obtained’ from alleged
illegal searches and failure ‘to identify what,
if any, evidence was ruled upon by the denial’
presented nothing for appellate review.
What Appellee conveniently leaves out of its Brief is
the portion of the Brennan opinion which states:
Appellant’s motion for rehearing asserts for
the first time that the fruits of the illegal
seizure are obvious and can easily and
unmistakably be ascertained by reviewing the
record. It identifies, for the first time,
several examples of such items from the
reporter’s record of the hearing. However, to
have identified these fruits from what is
provided in appellant’s brief, as he now
proposes, would have required this court to:
(1) assume that evidence appellant sought to
suppress had even been admitted into evidence
at the hearing, which it was not required to
be; (2) search the 50 page reporter’s record of
the hearing and apply applicable law to it to
determine which items might arguably have been
such fruits; and then (3) assume that appellant
would have done likewise. On the contrary, our
role is merely to evaluate the grounds of error
presented by the appellant, not to develop them
for him.
Since the Justices in the Brennan case believe it is
not their role to develop “grounds of appeal for
appellant”, Appellant will, in this response brief,
identify the fruits of the illegal detention and
subsequent arrest, as they appeared in the trial court
transcript of the hearing.
First, Appellant refers this Court to Pages 3-20 of
Appellant’s Brief. In the “Statement of Facts” in
Appellant’s Brief, Appellant clearly lays out the exact
testimony from the hearing, as it regards the officer’s
actions. These actions led to the officer’s
observations and beliefs that could later be recited in
a trial as evidence, in the form of oral testimony
supporting a conviction for D.W.I. Appellant pled
guilty once her Motion to Suppress was overruled.
It is clear, up and through Page 5 of Appellant’s
Brief, that the officer’s actions in approaching a
parked car to awaken sleeping occupants was a “casual
encounter”, not requiring any reasonable suspicion of
criminal activity or probable cause of a crime. But,
the testimony on Page 6 of Appellant’s Brief clearly
indicates the initial casual encounter escalated into a
detention, once the officer demanded, received and kept
Appellant’s Texas driver’s license.
Appellant, on Pages 24-30 of her Brief, fully
discusses and provides the Court with ample case law to
back-up her argument. When the officer demanded,
obtained and never returned her Texas driver’s license,
Appellant was illegally detained.
This detention required reasonable suspicion and,
per the “fruits of the poisonous tree doctrine”, all
subsequent observations and actions (including field
sobriety tests and statements by the Appellant and
officers, are fruits of the initial detention.
Specifically, see the Statement of Facts, on Pages 8-10
of Appellant’s Brief.
These are the fruits of the illegal detention that
were being presented to the Trial Judge to be
suppressed, i.e., all the officer’s testimony as to what
he observed Appellant do once he returned to her car.
See ( Page 17, Lines 12-18, Reporter’s Record ):
Defense Atty.: So at this point in time, you
pull your personal car next to her driver’s door and get out?
Officer: That’s correct.
Defense Atty.: And your purpose was to?
Officer: Basically try to help her out,
either getting a ride home or at that point I determined that she was possibly intoxicated. . .
The fact that the officer still had Appellant’s
Texas driver’s license in his possession, the “smell of
alcohol”, Appellant “cussing at him” and Appellant’s
accusation of the officer harassing her are all fruits
of this illegal detention. At some point, the Appellant
got out of her vehicle and she goes to the ground after
the officer places his hand on her. The officer
handcuffs Appellant and calls for back-up to continue
his investigation.
Most important is the testimony by the officer
admitting he did not see Appellant drive. Rather, the
officer said she was behind the wheel of a car that was
in “park”, with the motor running (Page 13, Lines 7-25,
Reporter’s Record) :
DEFENSE ATTY.: And when you first saw my
client’s car that you got her out of, was she parked, stopped?
OFFICER: At that point, when she’s in
front of me – like, I don’t remember if the car was in gear or parked, so I’m going to say if the car didn’t roll when I started talking to her, *12 I’m going to say the vehicle was parked.
Defense Atty.: Did you see my client drive up
to the Taco Cabana before you arrived that night?
Officer: No, sir, I didn’t.
Defense Atty.: When is the first time you saw
my client’s car?
Officer: When I pulled up to place my
order right behind her car.
Defense Atty.: So you were sitting parallel
to the order board in the closest lane to the building, correct?
Officer: That’s correct. It is like a
little turn there. So she was already off the turn and I was in the turn.
Defense Atty.: So you didn’t at that time see
her drive or operate that motor vehicle, did you?
Officer: That’s correct.
Appellant testified that she had not driven the car,
but another male had driven and received a call and had
to leave (Page 26, Lines 22-25, Reporter’s Record):
Prosecutor: Did you drive to the Taco
Cabana location?
Appellant: I did not.
Prosecutor: Who drove?
Appellant: Two males were with us. . .
As a direct result of the officer’s seizure of
Appellant’s Texas driver’s license and his demand that
she relocate her vehicle, this enabled the officer to
supply the missing D.W.I. element of “drive and operate
a motor vehicle”. The observation of her driving her
vehicle is a fruit of the illegal detention.
Additionally, all actions, observations and field
sobriety tests by the assisting officer would be tainted
by the initial illegal detention. Thus, these elements
would be suppressed under the fruits of the poisonous
tree doctrine.
II.
Next, Appellant attempts to justify Appellant’s
detention, i.e., asking for her Texas driver’s license
on the theory that the officer was conducting an
investigative detention for obstructing a passageway
and/or public intoxication.
This Court should base its decision on the officer’s
testimony and not the personal opinion of the Appellee.
In this context, the Appellee wants this Court to hold
the drive-thru lane to be a “passageway” covered by
Section 42.03 of the Texas Penal Code. Please note the
officer’s testimony during the trial court’s hearing
(Page 18, Lines 19-25 & Page 19, Line 1 of the
Reporter’s Record) :
Prosecutor: The Taco Cabana drive-thru, I want
to take you back to that. Would you describe it as a passageway, perhaps?
Officer: I can’t recall it as a passageway.
Most drive-thru(s) have one lane that curves around. You order at the board and come back up to the drive-thru window. There are several that are two lanes, but I don’t recall if that was a two- lane.
Even the officer didn’t consider the drive-thru a
passageway!
Note, also, the officer’s statement regarding one or
two lane drive-thru(s) make it clear that if it were two
lanes, he wouldn’t consider it a passageway!
The prosecutor goes on to press the officer in an
effort to transform the drive-thru into one of the
specific passageways covered by Section 42.03 of the
Texas Penal Code. The prosecutor was able to get the
officer to verify that the drive-thru system had both an
entrance and exit, neither of which Appellant blocked.
Rather, he testified that Appellant blocked a path
between the two.
But, again, since ignorance of the law is not an
excuse or defense in Texas, the officer should have been
familiar with Section 42.03(b), Texas Penal Code. This
Article pertains to the definition of “obstruct”, which
means to render impassable or to render passage
unreasonable inconvenient or hazardous.
The officer was asked these questions directly and
denied either existed!
The Legislature, also, clarifies Section 42.03,
Texas Penal Code, by beginning with:
(a) A person commits an offense if without
legal privilege or authority. . .
Clearly, Taco Cabana expected its customers to be
able to stop as they proceeded from the entrance to the
exit of the drive-thru(s) to place an order and to wait
in line as other cars stopped enroute to this pick-up
window.
Section 42.03 of The Texas Penal Code, also makes it
a crime if Appellant refused to move her vehicle, if
asked by the officer. In this case, once the officer
ordered Appellant to move her vehicle, she complied and
then parked it. Thus, no offense occurred.
III.
Finally, Texas law only criminalized conscious acts
as crimes. See Section 6.03 of the Texas Penal Code
Annotated: “Definitions of Culpable Mental States”.
Intentional requires a “conscious” objective or
desire to engage in the conduct or cause the result.
Knowingly requires a person to be “aware” of the
nature of his conduct or that circumstances exist.
Recklessly requires a person to be “aware” of but
“consciously” disregard a substantial and unjustifiable
risk that the circumstances exist or the result will
occur. Appellant apparently fell asleep while waiting
in line and could not have been “conscious” or “aware”,
as the law requires.
In analyzing the facts and law of this case, one is
attempting to determine what facts the officer had at
the time he seized Appellant’s Texas driver’s license
(i.e., detained her).
In many cases, an officer begins a casual encounter
and, upon investigation, he learns new facts that may
provide a reasonable suspicion to detain. Upon further
investigation during the detention, he may even learn
new facts sufficient for probable cause to arrest.
However, in this case, rather than learning new facts
indicating criminal activity, all facts learned by the
officer tend to dispel any belief a crime had been or
was being committed.
The officer, upon his arrival at Appellant’s door of
her vehicle, could clearly see the appellant was asleep.
Thus, proving that she was not intentionally, knowingly
or recklessly obstructing the drive-thru.
Secondly, the officer candidly admitted he could
have safely and without any “unreasonable” inconvenience
drive around Appellant, meaning there was no obstruction
at all as defined by Section 42.03, Texas Penal Code.
The Legislature chose not to outlaw all obstructions
that made passage “inconvenient”, but only those that
made passage “unreasonably inconvenient”.
Thus, the seizure and retention of Appellant’s Texas
driver’s license, at this point, was not supported by a
reasonable suspicion.
Also note that in Texas, the Courts have allowed for
an officer making a traffic stop to ask for one’s Texas
driver’s license. This is for the purpose of checking
for open warrants. However, also note that this officer
was off-duty, working an extra security job at a
neighboring Walmart when he decided to get breakfast in
his personal car. He testified that he did not have the
ability to run a registration check ( Page 9, Lines 12-
15, Reporter’s Record) .
IV.
As for the Appellee’s second contention that the
officer was conducting a public intoxication
investigation, again, please base your decision on the
facts testified to by the officer in the hearing. The
officer clearly stated he smelled no alcohol upon the
initial encounter and that he had no hesitation in
asking Appellant to drive the car some “500 feet” and
park and wait for him:
Officer: … and I asked her for her driver’s
license. At that point she gave me a driver’s license and I told her to take a parking space that was about five hundred feet from our location ( Page 8, Lines 23-25 & Page 9, Line 1, Reporter’s Record).
Officer: She was – she looked tired. She
was sleepy. At that point I did not smell any alcohol. That’s why I made the decision to let her drive to the parking space.
. . .
Prosecutor: When she drove off, how far away
did she drive?
Officer: Approximately 500 feet from the
location she was at, to the parking space. (Page 9, Lines 4- 11, Reporter’s Record).
Prosecutor: What did you do with the license?
Officer: I placed it in my pocket and I
instructed her verbally to park at one of the parking locations about 500 feet from our location.
Prosecutor: And then I take it you shut the
door so she could comply with your order to move to another location?
Officer: That is correct. (Page 16, Lines
5-11, Reporter’s Record) . This clearly shows that the officer had no facts to
support a reasonable belief of either public
intoxication or D.W.I.
Five hundred (500) feet? That is 166 yards! In
fact, I used Google Earth to find a point 500 feet from
this Court’s Courthouse. That would be (going North on
San Jacinto) the Criminal Courthouse; (going West on
Congress) at the Metro Rail; (going South on Fannin) the
front door of Sam Houston Hotel; and (going East on
Preston) at the Civil Courthouse. The Court can take
judicial knowledge of these distances. Note, also, it
is 500 feet from the Taco Cabana drive-thru to the front
door of the officer’s extra job at Walmart!
Allowing Appellant to drive unescorted for such a
distance clearly shows no reasonable suspicion on the
part of the officer that she was either publicly
intoxicated or D.W.I.!
The State cites three (3) Texas cases, two (2) of
which are unpublished opinions, supporting its argument
that even the brief blocking of a passageway was a
crime. These three cases are as follows: Lauderback v.
State , 789 S.W.2d 343 (Tex.App.—Fort Worth 1990, pet
ref’d); Windham v. State , No. 14-07-00193-CR, 2008 WL
2169918 (Tex. App. – Houston [14 th Dist.] May 22, 2008,
pet ref’d); and Cashin v. State , Nos. 14-03-01140-CR,
14-03-1141-CR, 2005 WL 975663 (Tex.App. – Houston [14 th
Dist.] Apr. 28, 2005, no pet.)(mem. Op., not designated
for publication). However, it fails to point out that
all three of these cases involve the accused having
stopped on a highway. The Courts found such an act
“hazardous”, due to the sheer nature of a highway being
for travel at rates of speed from 30 – 75 m.p.h. and
where users don’t expect someone to stop in a moving
lane.
Contrast this to a drive-thru lane where one is
expected to repeatedly stop, place an order, and proceed
(stop & go), as others pay for their orders (at rates
under 5 m.p.h.). This hardly creates a hazard! See
Morrison v. State , 71 S.W.3d 821 (Tex. App.—Corpus
Christi [13 th Dist.] 2002):
While the instant vehicle was parked in the
northbound lane of traffic, it was not
obstructing southbound traffic and was passable
by northbound motorists entering the southbound
lane, passage was not unreasonably inconvenient
because there was no traffic. As one scholar
has commented, no violation of the statute is
proven ‘by evidence that shows the defendant
only caused a slower passage or momentarily
impeded progress.’ 6 Michael B. Charlton , Texas
Practice: Texas Criminal Law 24.4 (1994).
Additionally, the vehicle did not, and indeed
could not have created a hazardous condition
because there were no children at play at the
time the vehicle was stopped. To hold the
vehicle obstructed a roadway under these
circumstances, would subject virtually every
mail carrier and delivery person to prosecution
on a daily basis. This would be an absurd
result which we must avoid. Boykin v. State ,
818 S.W.2d 782 (/case/boykin-v-state-6)
(Tex.Crim.App. 1991). Accordingly, we hold the
trial judge abused his discretion in denying
appellant’s motion to suppress on the basis
that Golden observed a violation of Section
42.03 of the Texas Penal Code.
Additionally, while appellant drove-off, as ordered,
the officer’s main concern was to continue through the
drive-thru window, pick-up and pay for his breakfast!
Appellee cites York v. State , 342 S.W.3d 528
(Tex.Crim.App. 2011), in which they justify a public
intoxication investigation for one sleeping in a running
car. But, the facts in York showed the vehicle was
parked partially on a sidewalk and Defendant was
confused about his location, the business was closed,
which indicated the possibility of a burglary. These
facts are far from falling asleep for two minutes in a
drive-thru of an open business. Additionally, when the
Appellant was awoken by an officer and ordered to move
her vehicle, she complied. Appellant displayed no
confusion and was aware of her location.
Texas law has addressed the need to justify
continual, prolonged detention. See Kothe v. State , 152
S.W.3d 54 (Tex.Crim.App. 2004):
In deciding whether the scope of a Terry
detention is “reasonable,” the general rule is
that an investigative stop can last no longer
than necessary to effect the purpose of the
stop. [32] In other words, if a driver is
stopped on suspicion of driving while
intoxicated, once the police officer determines
that the driver is not impaired, he should be
promptly released [33]. . .In the present case,
the court of appeals agreed that ‘a warrant
check in the context of a traffic stop is
generally viewed as a reasonable law
enforcement exercise.’ [38] However, citing
Davis v. State , the court of appeals stated
that a warrant check cannot be used solely as a
means to extend a detention ‘once the
reasonable suspicion forming the basis for the
stop has been dispelled.’ [39] This is
consistent with the rationale behind the
Supreme Court’s development of Fourth Amendment
law. . .In Ohio v. Robinette , . . . once the
original purpose for the stop is exhausted,
police may not unnecessarily detain drivers
solely in hopes of finding evidence of some
other crime. . .Only if a license check ‘unduly
prolongs’ the detention is the officer’s action
unreasonable under the circumstances. [43] In
this case, the court of appeals thought that
the order of events was crucial. It found that
because Deputy Forslund did not initiate the
warrant check until after he had determined
that Mr. Kothe was not intoxicated, the deputy
impermissibly extended the detention[44]. . .
Once our officer was presented with the above facts
(supporting no obstruction of a passageway, no use of
alcohol, no signs of intoxication or danger to
Appellant’s self or another), Appellant should have been
permitted to leave. However, she could not leave
because the officer had seized and retained her Texas
driver’s license.
V.
Finally, the Appellee wants to argue the handcuffing
of Appellant was only a detention and not an arrest
requiring probable cause. What Appellee is ignoring is
that the Appellant testified under oath, as follows:
Appellant: He comes up and I feel he’s
aggressively speaking to me. I didn’t even know why I’m really there. It is not being explained to me. He is talking to me. At one point – and then I do open the door. And I’m grabbed on the arm *26 right here. Immediately pulled out of the car and put on the ground. At which I’m asking what I’ve done. Because I don’t know.
Defense Atty.: Did you get a response from this
officer?
Appellant: No, I did not.
Defense Atty.: Were there any other officers
present when he first grabbed your arm and put you on the ground?
Appellant: No, sir.
Defense Atty.: After he put you on the ground,
did he handcuff you?
Appellant: He did. Shortly after I reached
the ground, I was handcuffed.
Clearly, the officer, without probable cause, chose
to arrest the Appellant.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, having considered
the authorities and arguments presented herein,
Appellant prays the Court to enter an order setting
aside the judgment and sentence in this matter for the
reasons enumerated above.
RESPECTFULLY SUBMITTED, /s/ Paul Mewis PAUL MEWIS Texas Bar Card No.13986500 4202 Windy Chase Lane Katy, Texas 77494-1071 281.392.2306 (office) 713.857.7003 (cell) 281.392.7203 (facsimile) paul@mewislaw.com (e-mail) ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and
correct copy of the foregoing Appellant’s Response to
Appellee’s Brief was hand delivered to the attention of
Ms. Kimberly Aperauch Stelter, A.D.A., Appellate
Division, Harris County D.A.’s Office, 1201 Franklin,
Suite 600, Houston, Texas 77002-1923, on this the 31 st
day of March, 2015.
/s/ Paul Mewis PAUL MEWIS *28 WORD COUNT CERTIFICATE OF COMPLIANCE I, PAUL MEWIS, the undersigned attorney for
Appellant Allison Leigh Campbell, in Appellate Cause No.
01-14-00807-CR, certify that Appellant’s Reply Brief
contains 3,898 words. This Reply Brief is a computer-
generated document created in Microsoft Word 2010, using
Courier New 14 point font. I am relying on the word
count provided by the software used to prepare the
document.
/s/ Paul Mewis PAUL MEWIS