Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 03/16/2017 10:51:26 AM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-16-00658-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/16/2017 10:51:26 AM KEITH HOTTLE CLERK NOS. 04-16-00658-CR & 04-16-00659-CR IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS ______________________________ THE STATE OF TEXAS, Appellant v.
RUBEN RODRIGUEZ, Appellee ______________________________ ON APPEAL FROM THE 399 th JUDICIAL DISTRICT COURT BEXAR COUNTY, TEXAS CAUSE NOS. 2015-CR10288 & 2015-CR-10289 ______________________________ REPLY BRIEF FOR THE STATE ______________________________ NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas L AURA E. D URBIN Assistant Criminal District Attorney Bexar County, Texas Paul Elizondo Tower 101 W. Nueva Street San Antonio, Texas 78205 Phone: (210) 335-2411 – Laura.Durbin@bexar.org Attorneys for the State of Texas State Bar No. 24068556 ORAL ARGUMENT REQUESTED *2 T ABLE OF C ONTENTS T ABLE OF A UTHORITIES ............................................................................................ iii
S TATE ’ S R EPLY ........................................................................................................... 1
The officer’s subjective intent is irrelevant ..................................................... 1
The record supports the officer’s reasonable suspicion ................................. 2
P RAYER FOR R ELIEF .................................................................................................... 4 ERTIFICATE OF C OMPLIANCE .................................................................................... 5 ERTIFICATE OF S ERVICE ............................................................................................ 5
ii *3 T ABLE OF A UTHORITIES Cases
Ford v. State ,
158 S.W.3d 488 (Tex. Crim. App. 2005) ............................................................... 1
Jaganathan v. State ,
479 S.W.3d 244 (Tex. Crim. App. 2015) .............................................................. 3
Statutes
T EX . T RANS . ODE A NN . §551.103 ............................................................................ 2
T EX . T RANS . ODE A NN . §552.006 ............................................................................ 2
Rules
T EX . R. A PP . P. 9.4 ..................................................................................................... 5
T EX . R. A PP . P. 38.3 ................................................................................................... 1
iii *4
TO THE HONORABLE COURT OF APPEALS FOR THE FOURTH
DISTRICT OF TEXAS:
Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar
County, Texas, and files this reply brief for the State pursuant to Texas Rules of
Appellate Procedure 38.3.
S TATE ’ S R EPLY The officer’s subjective intent is irrelevant
An officer executes a lawful temporary detention when he has reasonable
suspicion. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The test
for reasonable suspicion is an objective one based solely on whether there is an
objective basis for the detention. The officer’s subjective intent is not relevant.
The officer viewed Rodriguez walking with is bike against oncoming traffic. Two
transportation statutes control this conduct:
Sec. 551.103. OPERATION ON ROADWAY. (a) Except as provided by
Subsection (b), a person operating a bicycle on a roadway who is moving
slower than the other traffic on the roadway shall ride as near as practicable
to the right curb or edge of the roadway, unless:
(1) the person is passing another vehicle moving in the same direction;
(2) the person is preparing to turn left at an intersection or onto a private
road or driveway;
(3) a condition on or of the roadway, including a fixed or moving object,
parked or moving vehicle, pedestrian, animal, or surface hazard prevents
the person from safely riding next to the right curb or edge of the roadway;
or
*5 (4) the person is operating a bicycle in an outside lane that is:
(A) less than 14 feet in width and does not have a designated bicycle lane adjacent to that lane; or (B) too narrow for a bicycle and a motor vehicle to safely travel side by side.
T EX . T RANS . ODE A NN . §551.103
Sec. 552.006. USE OF SIDEWALK. (a) A pedestrian may not walk along
and on a roadway if an adjacent sidewalk is provided and is accessible to the
pedestrian.
T EX . T RANS . ODE A NN . §552.006
The record supports the officer’s reasonable suspicion
Rodriguez argues the officer changed his reasoning to detain multiple times
during the motion to suppress. [1] Under the reasonable suspicion standard as
discussed, the officer’s subjective reasoning for the detention is not a factor.
Rather, the court considers the objective basis for the detention. The record
established Rodriguez was walking and pushing his bicycle in the street against
traffic. There was an adjacent sidewalk.
First, under Section 551.103, if Rodriguez were in fact operating a bicycle,
he was not as near at practicable to the curb. Second, if Rodriguez was a
*6 pedestrian, under Section 552.006 of the Transportation, Rodriguez was not
walking along the adjacent sidewalk. The court’s determination that Rodriguez’s
actions were “more correct” was not proper. The State does not dispute
Rodriguez may have had justification for his conduct. However, the question
before the trial court was whether the officer had reasonable suspicion to detain
Rodriguez for a traffic violation, not whether Rodriguez was guilty of a traffic
violation. See Jaganathan v. State , 479 S.W.3d 244, 248 (Tex. Crim. App. 2015)
(holding potential justifications for appellant’s failure to move immediately from
left lane did not negate the reasonable suspicion that an offense occurred).
“There mere possibility that an act is justified will not negate reasonable
suspicion.” Rodriguez was walking with his bike against traffic. The officer had
reasonable suspicion to detain Rodriguez for a violation under 551.103 or
552.006.
*7 P RAYER FOR R ELIEF The State prays that this Court will reverse the trial court’s ruling.
Respectfully submitted, NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas /s/ Laura E. Durbin ______________________________ LAURA E. DURBIN Assistant Criminal District Attorney Bexar County, Texas 101 West Nueva, 3 rd Floor San Antonio, Texas 78204 (210) 335-2418 Laura.Durbin@bexar.org State Bar No. 24068556 (On Appeal) Attorneys for the State ERTIFICATE OF C OMPLIANCE I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure
that this document contains 613 words.
/s/ Laura E. Durbin _____________________________ LAURA E. DURBIN ERTIFICATE OF S ERVICE I, Laura Durbin, Assistant Criminal District Attorney, hereby certify that a
true and correct copy of the above and foregoing reply brief was served electronic
service to Oscar Cantu, Counsel for Ruben Rodriguez, on the 16 th day of March,
2017.
/s/ Laura E. Durbin _____________________________ LAURA E. DURBIN
[1] The State agrees with Rodriguez that during the suppression hearing, Officer Irving’s reasoning for the stop changed; however, as mentioned, his reasoning is not relevant to whether or not the record reflects the officer possessed reasonable suspicion to detain Rodriguez. Officer Irving first testified that he stopped Rodriguez because he was a pedestrian in the roadway. (RR 8). On cross-examination, Rodriguez questioned Officer Irving about the San Antonio municipal code provision which disallows bicycles on sidewalks. (RR 15-16). On re-direct, Officer Irving testified the two were in violation of Transportation Code Section 551.103. (RR 18).
[2]