Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/19/2015 10:17:53 AM JEFFREY D. KYLE Clerk IN THE THIRD COURT OF APPEALS THIRD COURT OF APPEALS 5/19/2015 10:17:53 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00098-CR *1 ACCEPTED [5335189] CLERK AT AUSTIN, TEXAS
BRIAN VINCENT ROBINSON, §
Appellant §
§ CAUSE NO. 03-15-00098-CR V. § TRIAL COURT NO. 70,532
§
THE STATE OF TEXAS, §
Appellee § BRIEF OF APPELLANT
Appealed from the 27 th Judicial District Court, Bell County, Texas Hon. John Gauntt, presiding COPELAND LAW FIRM P.O. Box 399 Cedar Park, TX 78613 Phone: 512.219.8930 E-Mail: tcopeland14@yahoo.com Tim Copeland State Bar No. 04801500 Attorney for Appellant APPELLANT HEREBY WAIVES ORAL ARGUMENT
TABLE OF CONTENTS Page Table of Contents i Index of Authorities ii-iv Identity of Parties and Counsel 1 Statement of the Case 2 Issue Presented 3
The trial court erred in denying Robinson’s motion to suppress because the traffic stop which resulted in his arrest was based on a literal reading of section 545.104 of the Transportation Code which leads to the absurd result that a turn signal is required in all circumstances.
Statement of Facts 4 Summary of the Argument 6 Issue 6 Statement of Pertinent Facts 7 Argument 7 Prayer 10 Certificate of Service and Compliance with Rule 9 11 i
INDEX OF AUTHORITIES Authorities Page United States Supreme Court cases Delaware v. Prouse 8 440 U.S. 648 (1979)
Ornelas v. United States 8 517 U.S. 690 (1996)
United States v. Robinson 8 414 U. S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) Whren v. United States 8 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) Texas Court of Criminal Appeals cases Boykin v. State 11 818 S.W.2d 782 (Tex. Crim. App. 1991)
Cantu v. State 7 842 S.W.2d 667 (Tex. Crim. App. 1992)
Carmouche v. State 7 10 S.W.3d 323 (Tex. Crim. App. 2000)
Crittenden v. State 9 ` 899 S.W. 2d 668 (Tex. Crim. App. 1995)
Garcia v. State 8 827 S.W.2d 937 (Tex. Crim. App. 1992)
Guzman v. State 8 955 S.W.2d 85 (Tex. Crim. App. 1997)
ii *4 INDEX OF AUTHORITIES, continued Authorities Page Texas Court of Criminal Appeals cases, continued Hines v. State 11 75 S.W.3d 444 (Tex. Crim. App. 2002)
Oles v. State 7 933 S.W.2d 103 (Tex. Crim. App. 1999)
State v. Ross 7 32 S.W.3d 853 (Tex. Crim. App. 2000)
Walter v. State 8 28 S.W.3d 538 (Tex. Crim. App. 2000)
Texas Court of Appeal cases Blevins v. State 7 74 S.W.3d 125 (Tex. App. – Ft. Worth, 2002)
Reha v. State 10 99 S.W. 3d 373 (Tex. App.—Dallas 2003)
Statutes Texas Health and Safety Code section 481.115 (West 2012) 2,4 Texas Code of Criminal Procedure , art. 38.23 (West 2012) 5 Texas Transportation Code, section 545.104 (West 2012) 3,6,9 Texas Transportation Code, section 545.104(a)(b) 9 iii
INDEX OF AUTHORITIES, continued Authorities Page Constitutions
United States Constitution, Fourth Amendment 8 Texas Constitution 4 iv *6 IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS
BRIAN VINCENT ROBINSON, §
Appellant §
§ CAUSE NO. 03-15-00098-CR V. § TRIAL COURT NO. 70,532
§
THE STATE OF TEXAS, §
Appellee §
IDENTITY OF PARTIES AND COUNSEL TO THE HONORABLE COURT OF APPEALS:
COMES NOW , BRIAN VINCENT ROBINSON , appellant, who would show the Court that interested parties herein are as follows:
BRIAN VINCENT ROBINSON , appellant, TDCJ No. 01969863, Bartlett State Jail, Bartlett, Texas 765211
KURT W. GLASS , trial attorney for appellant, 2608 N. Main St., Ste. B- 135, Belton, Texas 76513.
TIM COPELAND , appellate attorney for appellant, P.O. Box 399, Cedar Park, Texas 78613.
LESLIE McWILLIAMS , and BOB ODOM , Bell County Assistant District Attorneys, trial and appellate attorneys respectively for appellee, the State
of Texas, P.O. Box 540, Belton, Texas 76513. *7 IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS
BRIAN VINCENT ROBINSON, §
Appellant §
§ CAUSE NO. 03-15-00098-CR V. § TRIAL COURT NO. 70,532
§
THE STATE OF TEXAS, §
Appellee §
STATEMENT OF THE CASE TO THE COURT OF APPEALS :
Following the trial court’s denial of Brian Vincent Robinson’s motion to suppress, Mr. Robinson entered a not guilty plea before a jury, and his case
proceeded to trial. (R.R. 2, p. 19). He was eventually convicted of the State Jail
felony offense of possession of cocaine (of less than one gram). (R.R. 5, p. 6) and
see TEX. HEALTH AND SAFETY CODE §481.115 (West 2012). The trial
court assessed punishment of two years’ confinement in the State Jail Division of
the Texas Department of Criminal Justice. (R.R. 1, pp. 17-18). Robinson perfected
an appeal from that verdict and sentence. (C.R. 1, p. 45). *8 ISSUE PRESENTED
The trial court erred in denying Robinson’s motion to suppress because the traffic stop which resulted in his arrest was based on a literal reading of section
545.104 of the Transportation Code which leads to the absurd result that a
turn signal is required in all circumstances. *9 IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS
BRIAN VINCENT ROBINSON, §
Appellant §
§ CAUSE NO. 03-15-00098-CR V. § TRIAL COURT NO. 70,532
§
THE STATE OF TEXAS, §
Appellee §
STATEMENT OF FACTS
Indictment
Robinson was indicted for the offense of possession of cocaine less than one gram, a State Jail felony, in violation of Texas Health and Safety Code section
481.115(a) (b) . See TEX. HEALTH AND SAFETY CODE SECTION §
481.115 (a) (b) West 2012) .
Motion to Suppress
On October 23, 2014, the trial court heard Robinson’s motion to suppress evidence resulting from the traffic stop which led to his arrest on September 25,
2012. Robinson alleged in his motion to suppress that the traffic stop by Sergeant
Tyler McEowen of the Killeen Police Department was made without probable
cause or reasonable suspicion of criminal activity or warrant and that it violated his
rights under both the Texas and United States Constitutions . (C.R. 1, p. 17). *10 Sgt. McEowen’s Testimony at Motion to Suppress
At the hearing on the motion to suppress, Sgt. McEowen testified that he received information from a detective with the Organized Crime Division of the
Killeen Police Department that a subject was selling narcotics out of a 2006 silver
Audi. The detective provided the Audi’s temporary license plate number and
instructed McEowen to stop the vehicle if he observed a traffic violation. [1] (R.R. 2,
p. 7). McEowen testified that shortly after 5:00 p.m. he located the car, and he
followed the vehicle for a little while. When he saw the car stop and turn at 18 th
and Rancier Streets, he noted that the driver ―failed to signal within 100 feet of that
turn so [he] had a valid traffic violation…and [he] made a vehicle stop of the
vehicle.‖ (R.R. 1, p. 8). (McEowen would also note later that the dealer tags on
the car were ―unreadable‖ from 50’ away – another traffic violation – but his stop
of Robinson’s vehicle was clearly predicated on the failure to signal a turn).
( See
R.R. 2, p. 9 and compare at p. 16)). Once he had the vehicle stopped, McEowen
asked the driver, Robinson, for his license, but Robinson told McEowen that he
had no valid driver’s license. (R.R. 2, p. 10). After running his name, McEowen
arrested Robinson for driving while license suspended. (R.R. 2, pp.11-12). In a
search incident to that arrest, McEowen said that he found a white powdery
*11 [1] McEowen was also told the temporary tags on the car had expired, but that information turned
out to be invalid. ( See R.R. 2, p. 16 and R.R. 5, p. 22). *12 substance in Robinson’s right front pocket which field tested positive for cocaine.
(R.R. 2, pp. 13-14). Later analysis confirmed that the substance was, in fact,
cocaine, and its possession became the basis for the conviction here under review.
Trial Court’s Findings
The trial court denied Robinson’s motion to suppress but made no findings of fact, and the case proceeded to trial on November 3, 2014. (R.R. 2, p. 19).
SUMMARY OF THE ARGUMENT The trial court’s ruling which denied Robinson’s motion to suppress was predicated on a literal reading of Transportation Code section 545.104 to justify
the traffic stop which ultimately resulted in his arrest and subsequent indictment.
A literal reading of the statute, however, leads to an absurd result because the
legislature could not have intended that a turn signal is required in every
circumstance when a driver makes a turn. Instead, the trial court should have
looked at extra-contextual factors in connection with Robinson’s turn to determine
if a turn signal was required under the circumstances. That it did not do so was
error.
ISSUE The trial court erred in denying Robinson’s motion to suppress because the traffic stop which resulted in his arrest was based on a literal reading of section *13 545.104 of the Transportation Code which leads to the absurd result that a turn
signal is required in all circumstances. *14 STATEMENT OF PERTINENT FACTS In addition to the evidence presented in the ―Background‖ above, other evidence pertinent to Robinson’s issue is provided in the argument below.
ARGUMENT
Standard of Review
The trial court’s denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State , 933 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is
an abuse of discretion ―when the trial judge’s decision is so clearly wrong as to lie
outside that zone within which reasonable persons might disagree.‖ Cantu v.
State , 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). The appropriate standard of
review for a suppression ruling is a bifurcated review. Blevins v. State , 74 S.W.3d
125 (Tex. App. – Ft. Worth, 2002). An appellate court first affords almost total
deference to the trial court’s determination of the historical facts that the record
supports. Next, the Court of Appeals reviews de novo the trial court’s application
of the law of search and seizure to the facts. State v. Ross , 32 S.W.3d 853 (Tex.
Crim. App. 2000). When, as in the instant case, the trial court does not make
explicit findings of historical fact, the Court of Appeals reviews the evidence
adduced at a suppression hearing in the light most favorable to the trial court’s
ruling. Carmouche v. State , 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
Although due weight should be given *15 to the inferences drawn by trial judges and law enforcement officers,
determinations of matters such as reasonable suspicion and probable cause should
be reviewed de novo . Guzman v. State , 955 S.W.2d 85, 87 (Tex. Crim. App.
1997) (citing Ornelas v. United States , 517 U.S. 690 (1996)).
Applicable Law/Traffic Stops in General
A law enforcement officer may lawfully stop a motorist who commits a traffic violation when the officer has probable cause to believe that a traffic
violation has occurred. Garcia v. State , 827 S.W.2d 937 (Tex. Crim. App. 1992);
Walter v. State , 28 S.W.3d 538 (Tex. Crim. App. 2000). A traffic stop is a
―seizure‖ within the meaning of the Fourth Amendment even though the purpose
of the stop is limited, and the resulting detention is quite brief. Delaware v.
Prouse , 440 U.S. 648 (1979).
The Fourth Amendment does not prevent the use of evidence obtained during a pretextual stop if an officer has probable cause to believe that the
defendant committed a traffic violation. Whren v. United States , 517 U.S.
806,813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996) (citing United States v.
Robinson , 414 U. S. 218, 221, 236, 94 S. Ct. 467, 470, 477, 38 L. Ed. 2d 427
(1973) (holding that a traffic–violation arrest remains valid despite the fact that it
was a mere pretext for a narcotics search and that a lawful post-arrest search of the
person remains valid even if it was not motivated by the officer–safety concern *16 that justifies such searches)). The ―objective‖ test for pretextual searches and
seizures –followed by Texas courts—deems the officer’s subjective motivation
irrelevant to the determination of whether the seizure was reasonable. Crittenden v.
State , 899 S.W. 2d 668, 671-73 (Tex. Crim. App. 1995).
Section 545.104 of the Transportation Code
Section 545.104 of the Transportation Code at the time of the offense provided, in relevant part:
(a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.
(b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.
– TEX. TRANSP. CODE §545.104(a)(b) (West 2012)
Analysis
Robinson’s traffic stop was predicated on a violation of §545.104 of the transportation code as set out above. His argument with regard to McEowen’s
reliance on the statute as justification for his stop is straight forward:
Applying the plain language of section 545.014 leads to an absurd result unless a court reads additional language into the statue. That is so because while
the statutory language may at first blush seem to provide a clear, bright-line rule by
which drivers of motor vehicles and police officers may operate, on closer *17 inspection of the language, it becomes obvious that a literal reading will not work
in every situation, and in some cases, even lead to absurdity.
Here, there was no evidence adduced that Robinson could have given a signal at least 100’ before he turned because there was no evidence that the
particular roadway was long enough to afford him that opportunity. Neither was
there any evidence that Robinson had a choice in whether he turned at the
intersection or not. Cf ., however, Reha v. State , 99 S.W. 3d 373, 374 (Tex. App.—
Dallas 2003) (Plain language of the statute does not include exceptions for those
situations where there is only one direction to turn). Finally, a literal reading of
the statue ignores the otherwise reasonable and lawful choices available to a driver
in his movements upon a roadway. Where a driver has lawful options available to
him at an intersection, imposing a necessity upon that driver to make a decision on
whether to turn or not before he needs or wants to (as a plain reading of the statute
requires) creates an absurd situation where safety is not furthered and a driver’s
freedom of lawful movement upon the roadway is compromised. In fact, the
absurdity of a literal interpretation of the statute is best illustrated by Officer
McEwoen’s response to a question posed in the suppression hearing:
Q: So you can’t get to the intersection and say, Hey, there’s a Whataburger,
I feel like turning?
A: Oh, you can. You would just be violating the law. *18 --R.R. 2, p. 15.
Thus, a literal reading of the statute as evidenced by the trial court’s decision here, while suggested by precedent, results in a conclusion that the legislature
could not have intended. Instead, the statute should be read pragmatically. In
determining whether a failure to signal a turn justifies a traffic stop, a reviewing
court should look to extracontextual factors to arrive at a sensible interpretation of
the statute. See Boykin v. State , 818 S.W.2d 782 (Tex. Crim. App. 1991) and
Hines v. State , 75 S.W.3d 444 (Tex. Crim. App. 2002). Here, there were no
extracontextual factors that, under the circumstances and to avoid an absurd result,
would indicate Robinson was required to signal a turn. No evidence suggests, for
example, the implication of any safety factors from the turn that would impact the
arresting officer’s decision to make a traffic stop. Without such context, Officers
McEowen’s traffic stop was without probable cause. Thus, the trial court erred in
denying Robinson’s motion to suppress.
PRAYER WHEREFORE , Robinson prays that this Court of Appeals reverse the judgment of the trial court and order an acquittal, or in the alternative, remand for a
new trial in keeping with its findings herein including a remand for consideration
of extracontextual factors in determining whether his traffic stop was made with
probable cause. *19 COPELAND LAW FIRM Cedar Park, TX 78613 Phone: 512.897.8196 Fax: 512.215.8114 Email: tcopeland14@yahoo.com By: /s/ Tim Copeland Tim Copeland State Bar No. 04801500 Attorney for Appellant CERTIFICATE OF SERVICE AND OF COMPLIANCE WITH RULE 9 This is to certify that on May 19, 2015, a true and correct copy of the above and foregoing document was served on Bob Odom, Bell County Assistant District
Attorney, P.O. Box 540, Belton, Texas 76513, in accordance with the Texas Rules
of Appellate Procedure, and that the Brief of Appellant is in compliance with Rule
9 of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2268 words.
/s/ Tim Copeland TimCopeland