ACCEPTED 03-15-00098-CR 5452804 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/28/2015 1:40:37 PM JEFFREY D. KYLE CLERK No. 03-15-00098-CR
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS TEXAS AT AUSTIN, TEXAS 5/28/2015 1:40:37 PM JEFFREY D. KYLE Clerk ********
BRIAN VINCENT ROBINSON vs.
THE STATE OF TEXAS ********
ON APPEAL FROM THE 27th DISTRICT COURT OF BELL COUNTY, TEXAS Cause No. 70532
****** STATE'S BRIEF ******
HENRY GARZA DISTRICT ATTORNEY
BOB D. ODOM ASSISTANT DISTRICT ATTORNEY P.O. Box 540 Belton, Tx 7 6513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000
Oral Argument Not Requested
1 TABLE OF CONTENTS
ITEM PAGE
Index of Authorities ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3
Statement Regarding Oral Argument .... .. .. .... ...... .. .. .. .... .. .. .. .. .. .. .. .... .... 5
Statement of the Case ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5
Statement of Facts ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ...... 5
Summary of State's Argument............................................................. 7
Argument and Authorities .. .. .. .. .. .. .. .. .. .. .... ...... .... .. .. .. .. ...... .. .. .. .. .. .. .. ..... 8
Issue on Appeal .. . .. ... . ... ... ... .. . ... ... .. . .. .... ... .. . .. . .. . .. . ...... .. . .. . .. . .. . .. .... 8 TRIAL COURT ABUSE DISCRETION DENYING MOTION TO SUPPRESS BASED UPON TRAFFIC STOP UNDER SECTION 545.104(b), TRANSPORTATION CODE?
Standard of Review ... .. . .. . .. ... .... .. . .. .... .. . .. ... . ... ... .. . .. ... . ... ... .. .... ..... 8
Application and Analysis ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... 9
Prayer.................................................................................................... 15
Certificate of Compliance with Rule 9 ................................................. 15
Certificate of Service ............................................................................ 16
Appendix ... ... .. . ... ... .. . .. . ... ... ... .. . .. . .. . .. .... .. .... .. . .. . .. . .. .... .. ... . .. .... .. ... . .. . .. ..... 17 State v. Kidd, No. 03-09-00620-CR, 2010 Tex. App. LEXIS 10341 (Tx. App. Austin 3rd Dist. 2010 no pet), Not designated for publication.
2 INDEX OF AUTHORITIES CASES PAGE
Boykin v. State, 818 S.W.2d 782 ........................................................... 12 (Tx. Cr. App. 1991)
Carmouche v. State, 10 S.W.3d 323 ..................................................... 8 (Tx. Cr. App. 2000)
Estrada v. State, 154 S.W.3d 604 ......................................................... 8 (Tx. Cr. App. 2005)
Hargrove v. State, 40 S.W.3d 556 ......................................................... 11 (Tx. App. Houston 14th Dist. 2001 rev. ref.)
Krug v. State, 86 S.W.3d 764 ................................................................ 14 (Tx. App. El Paso 8th Dist. 2002 rev. ref.)
Perez v. State, No. 03-98-00465-CR, 1999 Tex. App. .......................... 13 LEXIS 5533 (Tx. App. Austin 3rct Dist. 1999 no pet.), not designated for publication
State v. Elias, 339 S.W.3d 667 .............................................................. 14 (Tx. Cr. App. 2011)
State v. Kidd No. 03-09-00620-CR, 2010 Tex. App. LEXIS ............... 10, 17 10341 (Tx. App. Austin 3rct Dist. 2010 no pet.), not Designated for publication
Walter v. State, 28 S.W.3d 538 ............................................................. 13 (Tx. Cr. App. 2000)
Weightman v. State, 975 S.W.2d 621 ................................................... 11 (Tx. Cr. App. 1998)
Williams v. State, No. 05-02-00314-CR, 2002 Tex. App. LEXIS ......... 12 8077 (Tx. App. Dallas 5th Dist. 2002 rev. ref.), not designated for publication
3 OTHER
Texas Transportation Code
Section 521.457 .......................................................................... 9
Section 545.104 ............................................................ 8, 11, 13-14
Section 545.104(b) ......................................................... 7, 9-11, 14
4 STATEMENT REGARDING ORAL ARGUMENT The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Brian Vincent Robinson, was charged by
indictment with the state jail felony offense of possession of a controlled
substance, to-wit: Cocaine in an amount of less than one gram. (CR-4).
He filed a motion to suppress the evidence obtained as a result of
the search of his person incident to arrest which gave rise to this
offense. (CR-17). That motion was heard before Judge John Gauntt in
the 27th Judicial District Court of Bell County, Texas and was denied.
(RR2-19).
The Appellant was tried before a jury in that court and found
guilty. (CR-31, 34). His punishment was assessed by the trial court at 2
years in state jail. (CR-34; RR7 -17, 18).
The Appellant gave timely notice of appeal (CR-40) and the trial
court certified his right to do so. (CR-33).
STATEMENT OF FACTS
The Appellant's sole issue on appeal pertains to the trial court's
ruling on his motion to suppress. During that hearing Sgt. Tyler
5 McEowen of the Killeen Police Department testified that he was working
in uniform and in a marked police patrol unit on September 25, 2012
when he was advised by Detective Mallow of the Organized Crime Unit
that he had been watching a particular automobile in connection with
information that it had been used in narcotics trafficking. (RR2-7).
Mallow suggested that it be stopped if McEowen observed the
commission of a traffic violation. (RR2-7, 15). Sgt. McEowen also
learned from the police dispatcher that the vehicle had temporary
license tag on it that had expired. (RR2-8).
McEowen subsequently located the vehicle in the downtown
Killeen area and, after following it, observed that the driver failed to
signal a turn within 100 feet of the intersection. (RR2-8). The driver
would pull completely up to the stop sign and only then signal the turn.
This occurred on two occasions. (RR2-15).
The officer initiated a traffic stop and identified the Appellant as
the driver. (RR2-10). The Appellant stated that he did not have a valid
driver's license in his possession. (RR2-10). Sgt. McEowen checked and
learned that the Appellant's driver's license had been suspended. (RR2-
11).
6 The officer arrested the Appellant for driving without a valid
driver's license. (RR2-12). Incident to that arrest the officer searched
the Appellant and found a small baggie containing a white powdery
substance he believed, based upon his training and experience to be
cocaine. 1
At the conclusion of the hearing the trial court entered findings
into the record. Those findings were that: (1) the defendant's vehicle
was stopped pursuant to traffic violation; and (2) the search of the
defendant's person was incident to a lawful arrest for driving while
license suspended. The motion to suppress was denied. (RR2-19).
SUMMARY OF STATE'S ARGUMENT
Article 545.104(b), in clear and unambiguous language, requires
that a driver signal a turn continuously for not less than 100 feet prior
to that turn. It provides no exceptions. Failure to do is a traffic violation
allowing a police officer to stop the vehicle. The application of the
statute to every turn is reasonable and does not lead to absurd results.
1 The Texas Department of Public Safety subsequently determined the baggie to contain cocaine in the amount of 0.04 grams. See State' s Exhibit 4. (RR8). The stop and arrest were recorded on video which was admitted into evidence at trial as State' s Exhibit 1. (RR8).
7 The lawful stop lead to the discovery that the Appellant was driving
while his license was suspended and he was arrested for that offense.
The Appellant was searched incident to that arrest and cocaine was
found on his person. The trial court did not abuse its discretion in
denying the Appellant's motion to suppress the results of that search.
ARGUMENT AND AUTHORITIES
Issue on Appeal
Did the trial court abuse its discretion in denying the Appellant's
motion to suppress because it relied upon Section 545? 104 of the
Texas Transportation Code, allegedly leading to an absurd result?
Standard of Review
A ruling of the trial court on a motion to suppress evidence is
reviewed for abuse of discretion and considered under a bifurcated standard
of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tx.Cr.App. 2000). The
appellate court reviews de novo the application of the law to the facts of the
case, however, it must also afford almost total deference to the trial court's
determination of the facts where that determination is dependent upon the
credibility and demeanor of the witnesses. The ruling must be upheld if it is
correct under any theory of applicable law. Estrada v. State, 154 S.W.3d
8 604, 607 (Tx.Cr.App. 2005). There is an abuse of discretion when the ruling
is so clearly wrong as to be outside the zone of reasonable disagreement.
Application and Analysis
The Appellant does not contest that he failed to signal his turn for
not less than 100 feet prior to that turn as required by Section
545.104(b) of the transportation code, thus committing a traffic offense
for which the officer could legally stop him. Nor does he contest the fact
that he was driving while his license was suspended and lawfully
arrested for that offense as provided in Section 521.45 7 of the
transportation code. He does not deny that the cocaine was recovered
from his person as a result of a search incident to that arrest.
Instead, he relies entirely upon his contention that the
interpretation of Section 545.104(b) applying its requirements to every
turn leads to an absurd result and, therefore, the trial court should not
have relied upon that violation to justify the stop leading to his arrest.
Without any citation to authority, the Appellant opines that a
literal reading of 545.104(b) "will not work in every situation". He
complains that what he sees as possible exceptions were not negated in
the evidence, while at the same time admitting that such exceptions are
not included in the statute. The Appellant argues that it is absurd to
9 impose upon a driver the necessity of deciding whether or not to turn
"before he needs or wants", where it does not further safety, because it
compromises freedom of lawful movement upon the roadway.
(Appellant's Brief at pg. 11).
In support of his argument he cites his own question to the officer
during the hearing on the motion to suppress as to whether or not he
can get to an intersection and suddenly say "Hey, there's a Whataburger,
I feel like turning". Absurdity is illustrated, he says, in Sgt. Eowen's
correct response that he can turn, but it would be a violation of the law.
Thus, he contends that he should be allowed to turn without signaling
when it is, in his own judgment, inconvenient to do so and not allowing
such actions is absurd.
A very similar argument was raised before this court in State v.
Kidd, No. 03-09-00620-CR, 2010 Tex. App. LEXIS 10341 (Tx. App. Austin
3rct Dist. 2010, no pet.), not designated for publication. (See Appendix.)
In that case the sole issue was the lawfulness of a traffic stop for failure
to signal intent to turn not less than 100 feet under Section 545.104(b).
The defendant asserted that the requirement of the statute was
unreasonable because he was unfamiliar with the area and unsure of his
direction. He also said such a requirement was "foolishly oppressive in
10 a free society". The trial court agreed and granted the motion to
suppress.
This court, however, reversed the judgment of the trial court. It
began its analysis with the plain language of the statute and noted that
the language of Section 545.104(b) clearly and unambiguously requires
a driver intending to turn to signal continuously for 100 feet. The court
declined to find that its enforcement led to absurd results. Instead the
court concluded that the plain language of the statute "provides a
bright-line rule for both drivers of motor vehicles and police officers
charged with enforcing the law." It also noted that the legislature must
be understood to have meant what it expressed in a clear and
unambiguous statute and that the courts are not to subtract from it
(citing Weightman v. State, 975 S.W.2d 621,623-24 (Tx. Cr. App. 1998)).
The Appellant's suggestion is that the statute should be
interpreted to allow an exception to the requirement to signal a turn
when the driver suddenly decided that he wanted to turn would render
the statute meaningless and unenforceable. See Hargrove v. State, 40
S.W.3d 556, 559 (Tx. App. Houston 14th Dist. 2001 rev. ref.), holding that
Section 545.104 is not unconstitutionally vague and that the defendant's
11 suggested interpretation that it merely allows, but does not require a
signal would render the law meaningless.
In Williams v. State, No. 05-02-00314-CR, 2002 Tex. App. LEXIS
8077 (Tx. App. Dallas 5th Dist. 2002 rev. ref.), not designated for
publication, a complaint identical to the Appellant's that the signal
requirement produced an absurd result because it required a signal to
turn where safety was not furthered was raised. The court of appeals
held that the statute was clear and unambiguous and its plain language
required a signal and applied anytime a turn is made and not merely in
situations where safety is involved, such as near a curve or grade.
In interpreting statutes the courts must seek to effectuate the
intent or purpose of the legislature and, where the language is clear and
unambiguous, the plain meaning of the words should be applied. Boy kin
v. State, 818 S.W.2d 782, 785 (Tx. Cr. App. 1991).
Here the legislature clearly and unambiguously provides that a
driver must signal a turn continuously for not less than 100 feet before
the turn. It did not say that a driver might avoid doing so if he was
hungry, or thought that it was safe not to do so, or decided to doing so
12 would hamper his freedom of the road 2 • Such an interpretation would
be absurd and would render the legislatively imposed requirement of
the statute utterly meaningless and unenforceable.
In this case it is undisputed that the Appellant failed to comply
with the statutory requirement to signal his turn for not less than 100
feet from the turn. The officer thus had the authority to initiate the
traffic stop. Upon making that stop the officer discovered that the
Appellant was driving with his license suspended and, therefore, had
probable cause to arrest him. Incident to that arrest the officer
searched the Appellant and found the cocaine on his person in his
pocket.
The only issue in this case is the lawfulness of the initial traffic
stop. When a traffic violation is committed within an officer's view he
may lawfully stop and detain the person for that violation. Walter v.
State, 28 S.W.3d 538, 542 (Tx. Cr. App. 2000). A violation of Section
545.104 of the traffic code by failure to signal a turn is a violation of the
highway law and grounds for such a traffic stop. Perez v. State, No. 03-
98-00465-CR, 1999 Tex. App. LEXIS 5533 (Tx. App. Austin 3rct Dist. 1999
2 It might well be argued that all criminal laws hamper one's freedom to do what one might decide to do, but that hardly renders such laws absurd in their application.
13 no pet.), not designated for publication; Krug v. State, 86 S.W.3d 7 64,
765-66 (Tx. App. El Paso 8th Dist. 2002 rev. ref.). See also State v. Elias,
339 S.W.3d 667, 676 (Tx. Cr. App. 2011), where the Court of Criminal
Appeals remanded the case to the trial court to determine whether or
not the traffic stop was pursuant to Section 545.104 and, therefore,
lawful.
The language of Section 545.1 04(b) is clear and unambiguous and
provides a bright-line rule for both drivers and law enforcement. There
is nothing in that statute that leads to unreasonable or unforeseen
circumstances. There is no indication that the legislature intended it to
be optional or subject to exceptions of driver convenience. It must be
given the interpretation that effectuates the legislative intent. That
requires that it apply signaling as required for all turns. That
interpretation is reasonable and provides guidelines for driving and for
enforcement. The trial court did not abuse its discretion in denying the
motion to suppress and in finding that the Appellant's vehicle was
lawfully stopped for a traffic violation and that the search of his person
was incident to a valid arrest for driving while his license was
suspended.
14 PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA District Attorney
jsj $aiJ ~- flrlmn BOB D. ODOM Assistant District Attorney P.O. Box 540 Belton, Tx 76513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State's Brief is in compliance with Rule 9
of the Texas Rules ofAppellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 1,972 words.
jsj $a6 Q). &r!mn BOB D. ODOM Assistant District Attorney
15 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Tim Copeland, Counsel for Appellant, by electronic
transfer via Email, addressed to him at tcopeland14@yahoo.com on this
28th day of May. 2015.
jsj $a6 ~. ffdonu BOB D. ODOM Assistant District Attorney
16 State v. Kidd No. 03-09-00620-CR, 2010 Tex. App. LEXIS 10341 (Tx. App. Austin 2010 no pet.), not designated for publication
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FOCUSTM Terms I jjGol Advanced .. . - Get-a-Document-!- - - - - ;;>d-l{iol- - - - - - - - - · - - - - -'View -Tutorial Service: Get by LEXSEE® Citation: 2010 Tex. App. LEXIS 10341 2010 Tex. App. LEXIS 10341, * The State of Texas, Appellant v. James D. Kidd, Appellee
NO. 03-09-00620-CR
COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN
2010 Tex. App. LEXIS 10341
December 30, 2010, Filed
PRIOR HISTORY: [*1] FROM THE TRAVIS COUNTY COURT AT LAW NO. 8, NO. C-1-CR-07-200997, HONORABLE CARLOS HUMBERTO BARRERA .., JUDGE PRESIDING.
DISPOSITION: Reversed and Remanded.
CORE TERMS: signal, feet, continuously, traffic stop, deputy, traffic violation, investigative detention, driver, plain language, unambiguous, intending, seizure, suppress, traffic offense, reasonable suspicion, peace officer's, leads to absurd results, driving, detain
COUNSEL: For Appellee: Mr. Kyle T. Lowe,., Austin, TX.
For Appellant: Ms. Giselle Horton ., Assistant County Attorne, Austin, TX.
JUDGES: Before Justices Patterson .., Puryear. and Henson ...
OPINION BY: David Puryear ..
OPINION
MEMORANDUM OPINION
James D. Kidd was charged with the misdemeanor offense of driving while intoxicated (DWI). Alleging that the initial traffic stop for failing to signal continuously an intent to turn for not less than 100 feet before the turn was unreasonable under the circumstances, Kidd filed a motion to suppress the evidence related to the DWI charge. A hearing resulted in the granting of the motion, and the State appealed. The sole issue on appeal is whether the traffic stop was constitutionally unreasonable. We will reverse and remand.
BACKGROUND
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Around midnight on January 27, 2007, Deputy Sheriff Anthony Sampson began following Kidd's vehicle. After about five miles, Deputy Sampson observed that Kidd failed to signal continuously for at least 100 feet before turning at aT-intersection. 1 Believing that Kidd's failure to signal intent to turn "continuously for not less than [*2] the last 100 feet" was in violation of section 545.104(b) of the transportation code, the deputy initiated a traffic stop that resulted in Kidd's arrest for DWI. See Tex. Transp. Code Ann . § 545.104(b) (West 1999).
FOOTNOTES
1 Kidd activated his turn signal about 30 feet from the intersection.
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