Bernard, Albert Tyrone

Court of Appeals of Texas

Bernard, Albert Tyrone

Court of Appeals of Texas·Decided December 23, 2016·No. PD-1335-16·Published

Opinion

CASE NO. PD-1335-16

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

STATE OF TEXAS

V.

ALBERT TYRONE BERNARD

On Petition for Discretionary Review from The Fourteenth Court of Appeals In No. 14-15-00822-CR Affirming the Trial Court’s Judgment in On Appeal from Cause No. MD-0348570 County Court at Law Number Three (3)

Galveston County, Texas Hon. Jack Ewing, Presiding

RESPONSE TO THE STATE’S

PETITION FOR DISCRETIONARY REVIEW

DAN KRIEGER 215 East Galveston Street League City, Texas 77573 (281) 486-8125 x2 Phone (281) 332-7877 Facsimile dan@kriegerlawfirm.com

December 23, 2016

ATTORNEY FOR APPELLEE, ALBERT TYRONE BERNARD

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellant: State of Texas

Appellee: Albert Tyrone Bernard

Trial Counsel for Lindsay Richards Appellant: State Bar No. 24086198 600 59th Street, Suite 1001 Galveston, Texas 77551 Telephone: (409) 770-5136

Appellate Counsel Jessica Ebbs for Appellant at Court State Bar No. 24095335 of Appeals: 600 59th Street, Suite 1001 Galveston, Texas 77551 Telephone: (409) 770-5136

Appellate Counsel Stacey M. Soule for Appellant at Court P.O. Box 13046 Of Criminal Appeals: Austin, Texas 78711

Trial and Appellate Counsel Dan Krieger for Appellee : State Bar No. 24064243 215 E. Galveston Street League City, Texas 77573 (281) 486-8125 (Telephone) (281) 332-7877 (Facsimile) dan@kriegerlawfirm.com

Trial Judge: Honorable Jack Ewing

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................ ii

TABLE OF CONTENTS ............................................................................................. iii

INDEX OF AUTHORITIES ........................................................................................ v

RESPONSE TO GROUNDS PRESENTED FOR REVIEW ...................................... 1

ARGUMENT ............................................................................................................... 2

PRAYER ...................................................................................................................... 4

CERTIFICATE OF SERVICE .................................................................................... 5 CERTIFICATE OF COMPLIANCE ........................................................................... 5

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INDEX OF AUTHORITIES

STATE COURT CASES

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). ................................................... 2

State v. Bernard, __ S.W.3d__, No. 14-15-00882-CR, 2016 Tex. App. LEXIS 12018, *9 (Tex. App.—Houston [14th Dist.] 2016). ...................................................... 3

State v. Iduarte, 268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008)...................................... 3

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). ............................................. 3

Vasquez v. State, 389 S.W.3d 361, 370 (Tex. Crim. App. 2012). ................................................ 3

STATUTES

Tex. Transp. Code § 545.060(a) ............................................................................... 1

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CASE NO. PD-1335-16

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

STATE OF TEXAS

, Appellant

V.

ALBERT TYRONE BERNARD

, Appellee

RESPONSE TO STATE’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Appellant respectfully responds to the State’s Petition for Discretionary

Review and urges the Court to decline discretionary review of this case.

STATEMENT REGARDING ORAL ARGUMENT

Appellee requests oral argument of this matter should the Court grant

discretionary review of this case in order to: 1) provide the Court a more complete

understanding of the facts of the appeal; 2) to allow the Court to explore and better

analyze the complicated legal issues presented in this appeal; and 3) to aid the Court

in deciding the matter.

RESPONSE TO GROUNDS FOR REVIEW 1. The Fourteenth Court of Appeals properly applied the binding authority to the decision of the matters in the case.

2. The Fourteenth Court of Appeals properly upheld the suppression of the stop based on the trial court’s finding of facts and their independent review of the case and dashcam video.

ARGUMENT

The Fourteenth Court of Appeals properly affirmed the lower court in this

matter. The trial court properly suppressed the traffic stop because the deputy

stopped Appellee without reasonable suspicion. In making it’s finding of facts, the

trial court noted several specific reasons that turned specifically on the credibility

and demeanor of the witnesses. It further found that Appellee was not driving in an

unsafe manner to any other vehicles on the road and no reasonable suspicion of

violating Texas Transportation Code 545.060(a) existed at the time of the stop.

These findings were supported by both officer testimony and the both the trial and

appellate courts’ review of the deputy’s dashcam video. The findings of fact also

support the suppression of the stop as there were no specific articulable facts that

would have supported a reasonable suspicion to stop Appellee for suspicion of

driving while intoxicated.

1. The Fourteenth Court of Appeals properly applied the binding authority to the decision of the matters in the case.

It is well established that the appellate courts give almost total deference to

the trial court’s determination of the historical facts that are supported by the record.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Here, the trial judge

made express findings of fact, which were supported by the evidence in the case.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

It is also well-established that the appellate courts will uphold the trial court’s

ruling if it is supported by the record and correct under any theory of law applicable

to the case. State v. Iduarte, 268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008). In the

instant case, the panel reviewed the testimony of the deputies in the case as well as

the dashcam video of the stop and found nothing to contradict the trial court’s

findings. State v. Bernard, __ S.W.3d__, No. 14-15-00882-CR, 2016 Tex. App.

LEXIS 12018, *9 (Tex. App.—Houston [14th Dist.] 2016).

Plurality opinions do not constitute binding authority. Vasquez v. State, 389

S.W.3d 361, 370 (Tex. Crim. App. 2012). Here, the panel correctly applied the

authoritative jurisprudence with the specific findings of fact and conclusions of law

and properly affirmed the trial court’s suppression of the stop.

2. The Fourteenth Court of Appeals properly upheld the suppression of the stop based on the trial court’s finding of facts and their independent review of the case and dashcam video.

Appellate courts will uphold the trial court’s ruling if it is supported by the

record and correct under any theory of law applicable to the case. State v. Iduarte,

268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008). In the instant case, the panel

reviewed the testimony in the case as well as the dashcam video of the stop and

found nothing to contradict the trial court’s findings. Bernard, 2016 Tex. App.

LEXIS 12018, *9. Based on the trial court’s findings of fact, in conjunction with

the panel’s review of the testimony and the dashcam video entered as evidence in

the case, there were no specific facts that would establish reasonable suspicion to

stop Appellee for driving while intoxicated. To the contrary, Officer Watson stated

she wanted to conduct a “welfare check” on the driver, however, no facts were

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