No. 05 10 01122 CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS EDUARDO ESCOBAR GARCIA, Appellant v. THE STATE OF TEXAS, Appellee Appeal from the 203d Judicial District Court of Dallas County, Texas Cause No. F10 56803 APPELLANT S BRIEF Lynn Richardson Chief Public Defender Counsel of Record: Brian W. Portugal Assistant Public Defender Appellate Division Dallas County Public Defender s Office Katherine A. Drew State Bar Number: 24051202 Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 Dallas County Public Defender s Office Dallas, Texas 75207 (214) 653 3550 (telephone) (214) 653 3539 (fax) brian.portugal@dallascounty.org ATTORNEYS FOR APPELLANT
LIST OF PARTIES APPELLANT DEFENSE COUNSEL AT TRIAL Eduardo Escobar Garcia Laura Barzune Assistant Public Defender Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207 APPELLANT S COUNSEL ON APPEAL STATE S COUNSEL AT TRIAL Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207 Renee Harris Assistant District Attorney Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 STATE S COUNSEL ON APPEAL The Hon. Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 ii
TABLE OF CONTENTS LIST OF PARTIES... ii TABLE OF CONTENTS... iii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 1 STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 PRAYER... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 10 iii
INDEX OF AUTHORITIES Cases Aviles v. State, 23 S.W.3d 74 (Tex. App. Houston [14th Dist.] 2000, pet. ref'd)... 5, 7 Bass v. State, 64 S.W.3d 646 (Tex. App. Texarkana 2001, pet. ref d)... 5, 7 Carter v. State, 309 S.W.3d 31 (Tex. Crim. App. 2010)... 6 Castro v. State, 227 S.W.3d 737 (Tex. Crim. App. 2007)... 4 Ehrhart v. State, 9 S.W.3d 929 (Tex. App. Beaumont 2000, no pet.)... 5, 7 Ford v. State, 237 S.W.3d 720 (Tex. Crim. App. 2005)... 4 Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)... 6 Hernandez v. State, 983 S.W.2d 867 (Tex. App. Austin 1998, pet. ref'd)... 5, 7 Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006)... 6 State v. Cerny 28 S.W.3d 796 (Tex. App. Corpus Christi 2000, no pet.)... 5, 7 State v. Griffey, 241 S.W.3d 700 (Tex. App. Austin 2007, pet. ref d)... 4 Terry v. Ohio, 392 U.S. 1 (1967)... 4 Walker v. State, No. 05 09 00139 CR, 2010 Tex. App. LEXIS 1036 (Tex. App. Dallas 2010, pet. ref d) (not designated for publication)... 4 Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997)... 4 Statutes TEX. TRANSP. CODE 545.060... 5, 7 iv
TO THE HONORABLE COURT: Appellant Eduardo Escobar Garcia submits this brief in support of his appeal of the judgment of the 203d Judicial District Court of Dallas County, Texas in cause number F10 56803, the Honorable Jennifer Balido, Judge presiding. 1 STATEMENT OF THE CASE A grand jury charged Appellant by indictment with unlawful possession of less than one gram of cocaine. (CR: 2). Appellant moved to suppress the evidence against him as the result of an unlawful traffic stop. (RR1: 7). After a hearing, the trial court denied Appellant s motion; Appellant filed a motion for rehearing, which the trial court denied. (RR1: 25; RR2: 11). Appellant pled guilty and judicially confessed pursuant to a plea agreement, and, in accordance with the plea bargain, the trial court sentenced Appellant to 180 days imprisonment, a fine of $1,500, and assessed court costs of $304. (CR: 9, 13, 15; RR3: passim). The trial court gave Appellant permission to appeal the denial of his motion to suppress. (CR: 18; RR3: 6, 9). Appellant gave timely notice of appeal. (CR: 19). ISSUE PRESENTED The trial court erred in denying Appellant s motion to suppress because the arresting officers lacked reasonable suspicion to conclude that Appellant had committed a traffic violation. 1 The current presiding Judge is the Honorable Teresa Hawthorne. 1
STATEMENT OF FACTS Dallas Police Officer Matthew Renfro testified that, at about 1:30 a.m. on June 13, 2010 in northwest Dallas on Northwest Highway, he observed a vehicle that he believed had committed a traffic violation. (RR1: 8 9). The violation Renfro testified that he observed was that the vehicle twice failed to maintain a single lane of traffic. (RR1: 9). Renfro specifically described the following: He was driving in the middle lane and he swerved over in the right lane a little bit and then swerved back to the middle lane and then went back to the left lane, then came back to the middle lane. (RR1: 9). According to Renfro, there were bars and strip clubs in the area and a lot of drunk drivers. (RR1: 9). Renfro testified that he and his partner waited a little while.. Then we lit him up just because of all the drunk drivers at that time of night. (RR1: 10). Renfro could not, however, say that there had been any instances of drunken driving that night. (RR1: 15). Renfro also could not remember how many other cars were around when Appellant s vehicle swerved, but there were no accidents or traffic jams as a result of Appellant s two swerves, and no other cars had to make any evasive maneuvers to avoid Appellant. (RR1: 15 17). Renfro and his partner followed Appellant for about a quarter or a half mile after initially observing the two instances of swerving, and Appellant committed no other traffic violations. (RR1: 15). Appellant properly stopped at stop lights without incident. (RR1: 15 16). Renfro summarized his testimony for the prosecutor as follows: 2
He failed to maintain a single lane of traffic. When we got behind him, I didn t know if he was trying to switch lanes without signaling and then come back or if he didn t know which way he was going to go, to the right or left, or maybe he was drunk or just scared because we were close behind him or whatever. Either way, he committed a traffic violation on two counts. (RR1: 12). Officer Renfro declined when asked, however, to characterize Appellant s driving as erratic or unpredictable. (RR1: 17). Officer Thomas Hughes, Renfro s partner, testified that what first drew his attention to Appellant s vehicle was that Appellant went over the line into the right lane of traffic, then returned to the middle lane, crossed into the left lane, and returned to the middle lane without signaling. (RR1: 20). Hughes testified that there were cars around the vehicle and that it was a busy night, but he couldn t not estimate how many cars were in the area. (RR1: 21). There was nothing else about Appellant s driving or behavior that concerned Hughes. (RR1: 21). SUMMARY OF THE ARGUMENT The officers who stopped Appellant lacked reasonable suspicion to believe that Appellant had committed a traffic violation because, though Appellant s vehicle twice crossed a lane marker, there is no evidence in the record that the movement of Appellant s vehicle was unsafe or was executed in an unsafe manner. 3
ARGUMENT Appellant moved to suppress any evidence obtained as a result of the traffic stop on the ground that the officers lacked reasonable suspicion to conduct the stop. (RR1: 7). The trial court should have granted Appellant s motion because the State failed to establish that the officers had reasonable suspicion, and the officers traffic stop therefore the Fourth Amendment to the U.S. Constitution. Applicable Law Substantive Law To detain a person for investigative purposes, an officer need not possess either probable cause or a warrant. See Ford v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2005); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). The officer must, however, have specific, articulable facts that lead the officer to a reasonable suspicion that a person is, has been, or will soon be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007); see Terry v. Ohio, 392 U.S. 1 (1967). A reviewing court looks only to the objective facts known to the officer at the inception of the seizure because a seizure that is unlawful from the beginning does not become lawful when its fruit is contraband or evidence of illegal activity. State v. Griffey, 241 S.W.3d 700, 704 (Tex. App. Austin 2007, pet. ref d). The facts known to the officer must amount to something more than an inchoate and unparticularized suspicion or hunch. Walker v. State, No. 05 09 00139 CR, 2010 Tex. App. LEXIS 1036, at *8 (Tex. App. Dallas 2010, pet. ref d) (not designated for publication). 4
The Transportation Code provides that drivers shall drive as nearly as practical entirely within a single lane and may not move from the lane unless that movement can be made safely. TEX. TRANSP. CODE 545.060(a). A violation of 545.060(a) occurs only when a vehicle fails to stay within its lane, and the movement is not safe or is not made safely. Bass v. State, 64 S.W.3d 646, 650 (Tex. App. Texarkana 2001, pet. ref d); State v. Cerny, 28 S.W.3d 796, 800 01 (Tex. App. Corpus Christi 2000, no pet.); Aviles v. State, 23 S.W.3d 74, 77 79 (Tex. App. Houston [14th Dist.] 2000, pet. ref'd); Hernandez v. State, 983 S.W.2d 867, 871 72 (Tex. App. Austin 1998, pet. ref'd). To support a traffic stop for violating 545.060(a), the record must show evidence that the movement was unsafe or occurred in an unsafe manner. Bass, 64 S.W.3d at 651; Cerny, 28 S.W.3d at 800 01; Aviles, 23 S.W.3d at 77 79; Ehrhart v. State, 9 S.W.3d 929, 931 (Tex. App. Beaumont 2000, no pet.); Hernandez, 983 S.W.3d at 871 72. Absent such a showing, reasonable suspicion is not established. See id. Standard of Review When reviewing a trial court s ruling on a motion to suppress, an appellate court works under the following framework: A trial court s determination of historical facts leading up to the arrest are reviewed under a deferential standard essentially they are reviewed for clear error; 5
A trial court s determination of mixed questions of law and fact, i.e. determinations of whether the facts give rise to probable cause or reasonable suspicion, is reviewed under a deferential standard when the determination turns on credibility and/or demeanor; A trial court s determination of mixed questions of law and fact that do not turn on credibility and/or demeanor are reviewed de novo. See Carter v. State, 309 S.W.3d 31, 38 40 (Tex. Crim. App. 2010); Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006); Guzman v. State, 955 S.W.2d 85, 87 90 (Tex. Crim. App. 1997). Because the trial court s conclusion does not turn on credibility or demeanor, this Court should review the trial court s denial of Appellant s motion to suppress de novo. See Carter, 309 S.W.3d at 38 40. Application of Law to the Facts This Court should reverse the trial court s denial of Appellant s motion to suppress because the trial court s conclusion is not supported by the law. The officers who stopped Appellant testified that the reason for the stop was that Appellant committed a traffic violation by crossing briefly into another lane on two occasions. (RR1: 8 9, 20 21). Neither officer, however, testified that Appellant s movement was unsafe or that it was executed in an unsafe manner. The officers also could not say how many other cars were around when Appellant s vehicle crossed the lane marker, but Officer Renfro did testify that no other car had to make any evasive maneuvers to avoid Appellant. (RR1: 15 17, 21). 6
Appellant expects that the State will, as it did on Appellant s motion for rehearing in the trial court, point to Officer Renfro s references to a lot of drunk drivers in the area and his statement that I don t know if he was trying to switch lanes... or maybe he was drunk or just scared because we were close behind him or whatever. (RR1: 12). These references are of no moment because neither officer testified to any facts sufficient to create a reasonable suspicion of intoxication. Officer Renfro, who made reference to there being a lot of drunk drivers around, was shown on cross examination to have nothing to support that observation. (RR1: 15). Further, Officer Renfro qualified his speculation about Appellant possibly being drunk or just scared because we were close behind him or whatever by stating: [e]ither way, he committed a traffic violation on two counts. (RR1: 12). It is therefore clear that the only basis testified to for the reasonableness of the stop was based on a perceived traffic violation. And because there is no evidence in the record to show that Appellant s lane movements were unsafe or were executed in an unsafe manner, the officers lacked reasonable suspicion to conclude that Appellant had committed a traffic violation under TEX. TRANSP. CODE 545.060(a). See Bass, 64 S.W.3d at 651; Cerny, 28 S.W.3d at 800 01; Aviles, 23 S.W.3d at 77 79; Ehrhart v. State, 9 S.W.3d 929, 931 (Tex. App. Beaumont 2000, no pet.); Hernandez, 983 S.W.3d at 871 72 This Court should therefore reverse the trial court s judgment and render a judgment of acquittal or, alternatively, reverse the trial court s judgment, order that any 7
evidence obtained as a result of the traffic stop be suppressed, and remand this cause for further proceedings. PRAYER Appellant prays that the Court reverse the trial court s judgment and render a judgment of acquittal or, alternatively, reverse the trial court s judgment, order that any evidence obtained as a result of the traffic stop be suppressed, and remand this cause for further proceedings. 8
Respectfully submitted, Lynn Richardson Chief Public Defender Dallas County Katherine A. Drew Chief, Appellate Division Dallas County Public Defender s Office Brian W. Portugal Assistant Public Defender Appellate Division Dallas County Public Defender s Office State Bar Number: 24051202 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207 (214) 653-3550 telephone (214) 653-3539 fax brian.portugal@dallascounty.org Attorneys for Appellant CERTIFICATE OF SERVICE A copy of this brief has been hand-delivered to the Dallas County Criminal District Attorney s Office, Appellate Division, 133 N. Riverfront Blvd., Dallas, Texas 75207 on January, 2011. Brian W. Portugal 9
CERTIFICATE OF COMPLIANCE I certify that this submitted CD or e-mail attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by e-mail attachment; 2. The CD or e-mail attachment is labeled with the following information: A. Case Name: Eduardo Escobar Garcia v. State B. The Appellate Case Number: 05-10-01122-CR C. The Type of Brief: Appellant s Brief D: Party for whom the brief is being submitted: Appellant Eduardo Escobar Garcia E. The Word Processing Software and Version Used to Prepare the Brief: MS Word 2003 3. The CD or e-mail attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The CD or e-mail attachment is free of viruses or any other files that would be disruptive to the Court=s computer system. The following software, if any, was used to ensure the brief is virus-free:. 5. I understand that a copy of this brief may be posted on the Court s website and that the electronically filed copy of the brief becomes part of the Court s record. 6. Copies have been sent to all parties associated with this case. (Signature of filing party and date) Brian W. Portugal (Printed name) Dallas County Public Defender s Office, Appellate Division (Firm) 10