IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS. No CR * * * * * * * * * * * * * * * * * *

Transcription

1 IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS No CR * * * * * * * * * * * * * * * * * * CARLUS DEMARCUS GATSON, Appellant v. THE STATE OF TEXAS, Appellee * * * * * * * * * * * * * * * * * * FROM THE CRIMINAL DISTRICT COURT OF DALLAS COUNTY, TEXAS HONORABLE ROBERT BURNS CAUSE NO. F H BRIEF OF APPELLANT IN REPLY TO THE BRIEF BY THE STATE Submitted By: CINDY L. BUCKNER ATTORNEY FOR APPELLANT STATE BAR NO Maple Ave., Suite 450. Dallas, TX TELEPHONE (214)

2 TABLE OF CONTENTS TABLE OF CONTENTS... i INDEX OF AUTHORITIES... i ARGUMENT... 1 CONCLUSION... 8 PRAYER... 9 CERTIFICATE OF SERVICE... 9 I. CASES INDEX OF AUTHORITIES Aviles v. State, 23 S.W.3d 74, 77 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd)....2 Ehrhart v. State, 95 S.W.3d 929 (Tex.App.-Beaumont 2000, no pet)...2 Hernandez v. State, 983 S.W.2d 867, 871 (Tex.App.-Austin 1998, pet. ref'd)...2 Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992)...8 State v. Tarvin, 972 S.W.2d 910 (Tex. App.Waco 1998, pet. ref'd)...5 II. STATUTES TEX. TRANSP. CODE ANN (a) (Vernon 2007)...9 i

3 ii

4 NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS * * * * * * * * * * * * * * * * * * * * * * * * * * * CARLUS DEMARCUS GATSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE APPELLANT S BRIEF IN REPLY TO THE STATE S BRIEF APPEAL FROM THE CRIMINAL DISTRICT COURT OF DALLAS COUNTY, TEXAS TO THE HONORABLE JUDGES OF SAID COURT: COMES NOW, CARLUS DEMARCUS GATSON, hereinafter referred to as the Appellant, by and through his attorney of record, who respectfully submits this his reply brief pursuant to the Texas Rules of Appellate Procedure, and in support thereof, would show the Court the following: The Motion to Suppress should have been granted by the trial court. The State quotes Officer Andrews observations of Appellant s vehicle, and argues that this behavior was dangerous because it had potential to strike other vehicles in the 1

5 area or go off the road possibly hitting any other vehicles of businesses or homes or anything else that s off the road. (State s Brief at 2.) Under this reasoning any driver could be pulled over for a potential traffic violation at any time. There is always a potential that there could be a traffic offense, or even an accident, however in Texas the Legislature requires, to constitute a violation of the Traffic Code, a lane change be unsafe. Section (a) of the Transportation Code provides that an operator on a roadway divided into two or more clearly marked lanes for traffic (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely. TEX. TRANSP. CODE ANN (a) (Vernon 2007). In other words, a violation of Section (a) occurs only when a vehicle fails to stay within its lane and that movement is not safe or is not made safely. State v. Cerny, 28 S.W.3d 796, 800 (Tex.App.-Corpus Christi 2000, no pet.); Hernandez v. State, 983 S.W.2d 867, 871 (Tex.App.-Austin 1998, pet. ref'd); see also Aviles v. State, 23 S.W.3d 74, 77 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The State argues the officer s observations provide sufficient cause to stop because it he had reasonable suspicion Appellant had committed the offense of failing to maintain a single lane in violation of Section (a) of the Texas Transportation Code. (State s Brief at 8.) The Court of Criminal Appeals has held that there is no violation of this statute if the lane change was made in a safe manner. See State v. Tarvin, 972 S.W.2d 910 (Tex. App.Waco 1998, pet. ref'd). In Tarvin, the officer testified he had initiated the stop because Tarvin's vehicle had been weaving within its own lane of 2

6 traffic. Id. at 912. Here Appellant was stopped for violation of the same Transportation Code provision, and here, as was the case in Tarvin, no violation of the statute occurred. The State argued in Tarvin that because Tarvin's weaving constituted a traffic offense, a temporary detention was justified. The court requested a copy of any law or ordinance which Tarvin may have violated but the State did not comply. On appeal, the State argues that Tarvin's weaving was a violation of Section of the Transportation Code, "An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely." TEX. TRANSP. CODE ANN (a) (Vernon 1998). Court in Tarvin said that, The evidence does not support a finding that Hill had a reasonable belief that Tarvin violated this provision of the Transportation Code. Id., at 912. As is the case here, there was no violation permitting the traffic stop, and as was the case in Tarvin, Appellant should not have been stopped. Because there was no probable cause to stop Appellant s vehicle all evidence obtained by the illegal stop should have been excluded by the trial court. State s attorney argues that Officer Andrews observed Appellant veer into a neighboring lane. (State s brief at pg. 8). Officer Andrews never testified he saw Appellant veer into another lane as asserted by the state. (State s brief, pg. 8). After Officer Andrews had reviewed his report, his testimony was, I was traveling, I believe, it was southbound 635 around Elam Road. I believe its right there in the City of Balch Springs area. Observed a black 3

7 vehicle. I believe its a Mitsubishi in the right center lane. Observed the vehicle move from the right center lane over to the left center lane crossing the white stripe lane dividers both front and rear tires on the driver's side moving both tires over into the left center lane, and then the vehicle moved quickly back into the right center lane. In response to the questions by the State, Officer Andrews said he saw this three times. He also said, I don't recall if there were any other vehicles in the area at the time. I just observed he was having a difficult time staying in the lane of traffic. When asked if this were dangerous he said, he had the potential to strike other vehicles in the area or go off the road possibly hitting any other vehicles or businesses or homes or anything else that's off the road if he were to lose control of the vehicle. (RR:10). The state s attorney also argues that Based on the totality of Officer Andrew s testimony to the facts and the rational inferences to be drawn from those facts, the officer s observations of appellant s driving behavior were sufficient to justify the officer to stop appellant based on a reasonable suspicion that he was in violation of subsection (a) and to raise a reasonable suspicion in the mind of a police officer, particularly one with Officer Andrews experience and training, that Appellant was driving while intoxicated. (State s brief at pg. 8). Officer Andrews did not testify he had any suspicion that Appellant was driving while intoxicated. The trial attorney had an opportunity to elicit testimony from this 4

8 officer, in fact questioned him about his reason for the stop, and he never indicated there was any reason for this stop other than the failure to maintain a single lane. The State s attorney says that Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App. Beaumont 2000), and Hernandez v. State, 983 S.W.2d 867, (Tex. App. Austin 1998, pet. ref d), do not apply. (State s Brief, pg 7.). Both cases are exactly on point. In Ehrhart, the arresting officer testified that Ehrhart s car touched the solid white line on the right-hand side and crossed the white line on the left-hand side but presented no evidence that Ehrhart s driving endangered other cars. The State conceded in its brief in Ehrnhart that Ehrhart's failure to maintain a single lane is "not an inherently illegal act." Neither of two officers present testified that Ehrhart's "weaving" was unsafe or dangerous. The Beaumont Court of Appeals said, As the record contains no evidence the movement was unsafe or dangerous, an actual traffic violation did not occur. Ehrhart, at 930. Officer Andrews likewise did not testify that there was any unsafe or dangerous factors in the lane change he observed. Appellant did not commit any traffic violations and the officer had no probable cause to conduct a traffic stop. The attorney for the State says that, In Hernandez, the arresting officer testified only to a slight drift over the lane line and that he was concerned about the defendant s well-being but testified to no other facts that would have suggested that he presented a danger to other drivers or created reasonable suspicion that justified a stop. The testimony quoted by the court shows it to be very similar to Appellant s case. In Hernandez, the arresting Officer was the only witness who testified at the hearing on appellant's motion to suppress. The factual background was taken exclusively from his 5

9 testimony, the details of which are crucial to the Court s determination of the validity of the stop. Hernandez, at 868. That testimony was as follows: A. [by Officer Combs] I was traveling about the 1800 block of South Mays northbound. Mr. Hernandez was in front of me in his pickup truck in the right-hand lane. While behind him, I observed him swerve to the left failing to maintain a single-marked lane, and I initiated the traffic stop at that time. Q. [by defense attorney] Did he change lanes? A. No, sir. Q. When you say he swerved left, what did his vehicle do? A. It broke the plane dividing the two lanes. Q. And how many lanes of traffic are there on that street? A. Five, total. Q. And he was in the right lane to begin with? A. Yes, sir. Q. And his left wheels crossed over into the second lane? A. Yes, sir. Q. About how far into that second lane did they cross over? A. 18 inches, couple of feet; not much. Q. And what time of day was this? A. About 1:30 in the morning, if I remember correctly. Q. And after his wheels crossed over, did they cross back into the right lane, again? A. Yes, sir. 6

10 Q. And how long after that did you initiate your traffic stop? A. Just three or four seconds, just long enough to call the plate in. Id. Appellant s facts vary only slightly from the facts in Hernandez, in that the officer observed him to cross over the left line more than one time, however the officer followed him for several minutes after the lane change, and did not observe any traffic violations. Appellant s vehicle should not have been stopped, the officer did not testify that he was investigating any offense, rather he testified that he was stopping Appellant because of a traffic violation. There was no traffic violation, and he should not have been stopped. The issue is whether the deputy had a probable cause, based on articulable facts, that Gatson failed to keep his vehicle within its lane and did so in an unsafe manner. The State failed to meet its burden because it failed to show articulable facts to demonstrate the reasonableness of the stop on the basis of articulable facts to show Gatson violated TEX. TRANSP. CODE ANN (a). The improper Field Sobriety Tests should not have been admitted. The administration of the standard field sobriety tests was not completed properly, therefore all evidence obtained as the result of the arrest of Appellant should have been suppressed. 7

11 The attorney for the State is not persuaded that Kelly applies in this case, however when a witness is testifying about evidence that is derived from a procedure using a scientific theory the procedure must meet the requirements of Kelly. Evidence derived from a scientific theory must meet three criteria in order to be reliable in any given case: "(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question." Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). The trial court erred by admitting evidence of the walk-and-turn and one-leg stand tests under because Deputy Andrews performed these tests improperly. Clearly the tests were not performed properly, as is visible in the videotape of the tests. (R. R. Pg. 73, State s Exhibit 2A) shows the condition of the roadway where the tests were performed, which was the unpaved area beyond the shoulder of the freeway, in the grass and gravel. Deputy Andrews testified that the tests were performed on the shoulder where the cars were parked but the videotape clearly shows the deputy and Appellant were off the pavement, therefore his inability to maintain balance could have been the result of the surface where he attempted to complete the test. CONCLUSION The court erred in revoking Appellant s Deferred Probation, and this Court should reverse the adjudication and remand his case back to the district court. 8

12 PRAYER WHEREFORE, PREMISES CONSIDERED, by reason of the reversible errors above pointed out Appellant prays this cause be reversed and dismissed, or reversed and remanded, and for all other relief to which he may be entitled in compliance with the law, and he so prays. RESPECTFULLY SUBMITTED, CINDY L. BUCKNER 3201 Maple Ave, Suite 450 DALLAS, TX TX Bar # PHONE (214) FAX (972) CERTIFICATE OF SERVICE I, Cindy L. Buckner, attorney of record for Appellant, Carlus Gatson, hereby certify that a true and correct copy of this Appellant s Brief together with written arguments and authorities attached thereto have been delivered to the attorney for the state at his address, Dallas District and County Attorney s Office, Frank Crowley Courts Bldg. 133 N. Industrial Blvd. Dallas, TX 75207, this the day of, CINDY L. BUCKNER 9