WR-83,625-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/22/2015 12:41:48 PM Accepted 7/22/2015 1:17:42 PM ABEL ACOSTA CLERK RECEIVED COURT OF CRIMINAL APPEALS 7/22/2015 ABEL ACOSTA, CLERK Appendix
A
Reporter Record
Vol. 1, 2 & 3 1
1 REPORTER'S RECORD
2 VOLUME 1 OF 3 VOLUMES
3 APPELLATE CASE NO. 12-14-00296-CR
4 TRIAL COURT CASE NO. 14-1048
5 THE STATE OF TEXAS § IN THE COUNTY COURT § 6 VS. § AT LAW NUMBER TWO OF § 7 DAVID MARK DAVIS II § ANGELINA COUNTY, TEXAS
11 _____________________________
12 MASTER INDEX _____________________________ 13
19 On the 25th day of September, 2014 and the 10th day of
20 October, 2014, the following proceedings came on to be heard
21 in the above-entitled and numbered cause before the Honorable
22 Derek C. Flournoy, Judge presiding, held in Lufkin, Angelina
23 County, Texas:
24 Proceedings reported by Computerized Stenograph
25 Machine.
Elizabeth Murphy, CSR - Deputy P.O. Box 908, Lufkin, TX 75902-0908 159th Judicial District Court 936-639-3913 2
1 A P P E A R A N C E S
2 Mr. James Yakovsky Mr. David Mark Davis, II ASSISTANT COUNTY ATTORNEY 11 Glenview Court 3 SBOT NO. 24030668 Lufkin, TX 75901 215 E. Lufkin Avenue (936) 238-8507 4 Lufkin, TX 75901 APPEARING PRO SE (936) 639-3929 5 ATTORNEY FOR STATE
Elizabeth Murphy, CSR - Deputy P.O. Box 908, Lufkin, TX 75902-0908 159th Judicial District Court 936-639-3913 3
1 VOLUME 1 (MASTER INDEX) 2 VOLUME 2 3 (HEARING ON MOTION TO SUPPRESS) Page Vol. 4 SEPTEMBER 25, 2014
5 Case called . . . . . . . . . . . . . . . . . . . . . 4 2
6 Opening comments by the Court . . . . . . . . . . . . 4 2
7 Questions by the Court regarding Motion to Suppress . 6 2
8 Questions by the Court regarding State's Burden . . . 6 2
9 Response regarding State's Burden by Mr. Yakovsky . . 6 2
10 Questions by the Court regarding Motion to Suppress . 8 2
11 Response regarding Motion to Suppress by Mr. Davis. . 8 2
12 Further Comments and Questions by the Court . . . . . 9 2
13 Further Response by Mr. Davis . . . . . . . . . . . . 9 2
14 Further Response by Mr. Yakovsky. . . . . . . . . . . 11 2
15 Further Comments by the Court, Mr. Davis and Mr. Yakovsky. . . . . . . . . . . . . . . . . . . . . 12 2 16 Proceedings adjourned . . . . . . . . . . . . . . . . 16 2 17 Court Reporter's Certificate. . . . . . . . . . . . . 17 2 18 EXHIBIT INDEX 19 NO. DESCRIPTION OFFERED ADMITTED VOL. 20 NONE 21 VOLUME 3 22 (BENCH TRIAL) Page Vol. 23 OCTOBER 10, 2014
24 Opening comments by the Court . . . . . . . . . . . . 4 3
25 Argument regarding Motion to Suppress by Defendant. . 4 3
Elizabeth Murphy, CSR - Deputy P.O. Box 908, Lufkin, TX 75902-0908 159th Judicial District Court 936-639-3913 4
1 Response regarding Motion to Suppress by State. . . . 5 3
2 Partial Denial of Motion to Suppress by the Court . . 5 3
3 No Contest Plea entered by Defendant. . . . . . . . . 5 3
4 Court's Ruling and Acceptance of No Contest Plea. . . 6 3
5 Oral Notice of Appeal entered by Defendant. . . . . . 6 3
6 Court's Ruling on Punishment. . . . . . . . . . . . . 8 3
7 Proceedings adjourned . . . . . . . . . . . . . . . . 8 3
8 Court Reporter's Certificate. . . . . . . . . . . . . 9 3
9 EXHIBIT INDEX
10 NO. DESCRIPTION OFFERED ADMITTED VOL.
11 NONE
Elizabeth Murphy, CSR - Deputy P.O. Box 908, Lufkin, TX 75902-0908 159th Judicial District Court 936-639-3913 5
1 THE STATE OF TEXAS §
2 COUNTY OF ANGELINA §
3 I, Elizabeth Murphy, Official Court Reporter in and for
4 County Court at Law No. 2 of Angelina County, State of Texas,
5 do hereby certify that the above and foregoing contains a
6 true and correct transcription of all portions of evidence
7 and other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's
9 Record, in the above-styled and numbered cause, all of which
10 occurred in open court or in chambers and were reported by
11 me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits, if
14 any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $__________ and will
17 be paid by ______________________________.
19 WITNESS MY OFFICIAL HAND this the _____ day of
20 ____________________, 2014.
22 ______________________________ ELIZABETH MURPHY, CSR #4832 23 Expiration Date: 12/31/2014
Elizabeth Murphy, CSR - Deputy P.O. Box 908, Lufkin, TX 75902-0908 159th Judicial District Court 936-639-3913 1
2 VOLUME 2 OF 3 VOLUMES
5 THE STATE OF TEXAS § IN THE COUNTY COURT § 6 VS. § AT LAW NUMBER TWO OF § 7 DAVID MARK DAVIS II § ANGELINA COUNTY, TEXAS
12 _____________________________
13 HEARING ON MOTION TO SUPPRESS _____________________________ 14
20 On the 25th day of September, 2014, the following
21 proceedings came on to be heard in the above-entitled and
22 numbered cause before the Honorable Derek C. Flournoy, Judge
23 presiding, held in Lufkin, Angelina County, Texas:
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 2
2 Mr. James Yakovsky Mr. David Mark Davis, II ASSISTANT COUNTY ATTORNEY 11 Glenview Court 3 SBOT NO. 24030668 Lufkin, TX 75901 215 E. Lufkin Avenue (936) 238-8507 4 Lufkin, TX 75901 APPEARING PRO SE (936) 639-3929 5 ATTORNEY FOR STATE
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 3
1 I N D E X VOLUME 2 2 (HEARING ON MOTION TO SUPPRESS) Page Vol. 3 SEPTEMBER 25, 2014
4 Case called . . . . . . . . . . . . . . . . . . . . . 4 2
5 Opening comments by the Court . . . . . . . . . . . . 4 2
6 Questions by the Court regarding Motion to Suppress . 6 2
7 Questions by the Court regarding State's Burden . . . 6 2
8 Response regarding State's Burden by Mr. Yakovsky . . 6 2
9 Questions by the Court regarding Motion to Suppress . 8 2
10 Response regarding Motion to Suppress by Mr. Davis. . 8 2
11 Further Comments and Questions by the Court . . . . . 9 2
12 Further Response by Mr. Davis . . . . . . . . . . . . 9 2
13 Further Response by Mr. Yakovsky. . . . . . . . . . . 11 2
14 Further Comments by the Court, Mr. Davis and Mr. Yakovsky. . . . . . . . . . . . . . . . . . . . . 12 2 15 Proceedings adjourned . . . . . . . . . . . . . . . . 16 2 16 Court Reporter's Certificate. . . . . . . . . . . . . 17 2 17 EXHIBIT INDEX 18 NO. DESCRIPTION OFFERED ADMITTED VOL. 19 NONE 20
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 4
1 THE COURT: This is Cause 14-1048, State of
2 Texas versus David Mark Davis, II. All right. Mr. Davis --
3 let the record reflect Mr. Davis is present pro se, State's
4 present through Mr. Yakovsky. Let me ask a couple questions
5 before we get started. I've had an opportunity to read the
6 motion and the response. That aside, there were a couple
7 other things you filed, Mr. Davis. You filed a motion for
8 the jury to assess punishment, which obviously is your right
9 to do. I've never had anybody file an order with -- getting
10 my permission because I don't think you have to have my
11 permission to file that, you know. I'd be happy to sign it
12 if you'd like, I just don't know that it's necessary and then
13 you also did that on your motion to make an opening
14 statement. You have the right to make an opening statement
15 in trial whether it's a nonjury or a jury trial and you've
16 submitted an order with that as well. I mean, it doesn't
17 bother me to grant that motion, although I don't know that
18 it's something I have the authority to deny, but, you know,
19 whatever you want me to do. It doesn't really matter; so,
20 I'll sign it if you want me to.
21 MR. DAVIS: Your Honor, I since -- on the jury
22 issue, I waived a jury for a Bench trial after I filed that.
23 THE COURT: Okay.
24 MR. DAVIS: And the other issue, it's your
25 call, sir. You don't have to sign it if --
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 5
1 THE COURT: Okay. Any thoughts on that, Mr.
2 Yakovsky?
3 MR. YAKOVSKY: No, Judge. I don't have any
4 thoughts on those issues.
5 THE COURT: You filed your waiver of counsel,
6 which is nice. I haven't seen a pro se litigant do this,
7 although, you know, these are the admonitions that I have to
8 give, to tell you what a horrible idea it is to represent
9 yourself at trial; however, with this being a Class C
10 misdemeanor, obviously you don't run the risk of
11 incarceration. It's a fine-only offense if you're convicted;
12 so -- but that's nice. I like that. That's good to see.
13 All right. You've also filed a Motion for
14 Discovery and Inspection of Evidence. I didn't actually set
15 that for today's hearing, I just set the Motion to Suppress,
16 but you and Mr. Yakovsky get together on that and, you know,
17 under the new Michael Morton Act, there are certain things
18 you're entitled to receive. I know there's some question
19 because it's not specifically addressed as to what a pro se
20 litigant can have because the act itself talks about an
21 attorney or a defendant being able to possess certain
22 documents, but like I say, I suspect that if you and Mr.
23 Yakovsky get together, you can probably work through those
24 issues and if you can't, then I'll reset it.
25 Let's see -- all right. On the Motion to
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 6
1 Suppress, let me ask this question because I couldn't tell
2 from your motion. What is it that you're trying to suppress?
3 MR. DAVIS: The fruits of the stop itself.
4 THE COURT: Which were what?
5 MR. DAVIS: The identity and the basis for the
6 cause of action, being able to identify me.
7 THE COURT: Okay. You have any cases on that
8 issue?
9 MR. DAVIS: Yes -- at the house. I can do a
10 little more research. Most of the stuff I've read deals with
11 DUIs as a secondary.
12 THE COURT: Sure, because they're taking blood
13 or breath or something like that. I've never seen this in a
14 speeding traffic violation case before and, so, like I say, I
15 was just a little confused. I didn't know what you were
16 trying to suppress unless there was -- you gave a statement
17 or something like that, but I couldn't tell, from looking at
18 the file, that you had. All right. Mr. Davis, are you ready
19 to proceed?
20 MR. DAVIS: Yes, sir.
21 THE COURT: State ready?
22 MR. YAKOVSKY: We're ready, Judge.
23 THE COURT: All right. Do you agree because
24 this is a warrantless search that you have the burden?
25 MR. YAKOVSKY: Judge, that's kind of an
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 7
1 interesting question and I'll just tell you kind of what I
2 did. I did file a reply just to give the Court a little --
3 to be quite honest, I didn't feel -- and the Court will
4 probably give Mr. Davis some leeway, being pro se, and I'm
5 happy to go along with that as well, but this Motion to
6 Suppress, he doesn't articulate any particular facts as to
7 either a constitutional or a statutory violation in
8 connection with the traffic stop and, so, what I did was I
9 just prepared a response and sort of generalized the laws
10 that may touch on a traffic stop.
11 There's no arrest, no search, no seizure, just
12 a notice to appear was all he had to sign, promise to appear;
13 so, I wanted to lay those things out in my response,
14 indicating that all those elements were met, elements of a
15 citation in a speeding case; I mean, it's a pretty
16 straightforward area of law and pretty straightforward
17 procedurally.
18 So, in order for me to make any more of it than
19 what it really is, I did the best I could just by kind of
20 showing that we believe that as far as this being a basic
21 traffic stop, there wasn't anything that touched on either a
22 constitutional or statutory violation, that I can tell, based
23 on the Motion to Suppress and as a result of that, I feel
24 like Mr. Davis has still got the burden there to overcome the
25 -- there's a premise that everything was done properly and
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 8
1 until that premise is overcome with some articulated fact or
2 circumstance to indicate that there was some constitutional
3 or statutory violation, then it's sort of difficult to
4 respond to not knowing -- usually you have a -- trying to
5 suppress blood evidence in a DUI case and maybe it was based
6 on a warrantless search or some issue where you've got some
7 fruits of the arrest and stop and all those and we don't have
8 any of that here.
9 So, I'm just kind of generalizing in my
10 response, but I do believe that he still has some burden
11 because I'm not really sure where we stand with what regard
12 we have to prove -- it's difficult to prove something I don't
13 know where -- you know, what are we up against, I guess.
14 THE COURT: And I guess one of -- the issue is
15 normally we see a Motion to Suppress on a search or seizure
16 and your Motion to Suppress is silent on what it is that
17 you're trying to suppress. You just say fruits, the cause of
18 action came from fruits produced as a direct result of the
19 detention, but then you don't -- you don't give any
20 indication of what that is and that's why my first question
21 is what are you trying to suppress here?
22 MR. DAVIS: Well, in rebuttal, Your Honor,
23 warrantless stops -- I mean, it was a seizure. I disagree
24 with that point because I wasn't free to go; I mean, when a
25 police officer turns their reds and blues on behind you, if I
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 9
1 were to just drive off, I'm going to be arrested. I'm being
2 restrained against my will. I would certainly call that a
3 seizure, kind of goes into the DUI caselaw, the same thing.
4 The basis for the stop was a seizure.
5 THE COURT: I don't think it's a seizure. I
6 think it's a detention. Generally at that point in time when
7 you've been pulled over, you're detained and you're not free
8 to leave until they've ascertained the information they're
9 needing to get from you. Do you have any cases on point with
10 regard to a traffic stop where it's a speeding?
11 MR. DAVIS: Just -- the only ones I've been
12 able to find are related to other offenses like drugs found
13 after the search or DUI or after the seizure.
14 THE COURT: Because I think once you've been
15 stopped and there's probable cause to stop you or reasonable
16 suspicion to stop you, I think you have an obligation at that
17 point in time to give your name or they can charge you with a
18 fail to identify.
19 MR. DAVIS: Yes, sir.
20 THE COURT: Once they request it, you have to
21 give it, unlike your blood or consent to search or things of
22 that nature, you don't have an obligation to give it.
23 MR. DAVIS: Yes, sir.
24 THE COURT: They have to either have a warrant
25 or have some probable cause to search at that point in time.
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 10
1 What I would prefer to do, and I'm going to tell you what my
2 thought is, but I would prefer to give you the opportunity to
3 find me a case on point in regard to just a traffic stop on a
4 speeding or it doesn't necessarily even have to be a
5 speeding; I mean, it could be a running a red light or
6 something of that nature that doesn't involve drugs or
7 alcohol that would have been seized or searched, okay? I'm
8 not going to say confident, but I have a feeling you're not
9 going to find anything because I don't believe that this
10 applies, but I'm going to give you that opportunity to find
11 something. You've listed a couple of cases here talking
12 about routine traffic stops and I haven't read either one of
13 these and you didn't bring those for me, did you?
14 MR. DAVIS: No, Your Honor, but those deal with
15 -- they're not speeding and the problem with it is there's
16 not a lot of caselaw on C misdemeanor traffic violations. I
17 can get on Lexis and look at --
18 THE COURT: See what you can find.
19 MR. DAVIS: -- Shepardize it, but I don't know.
20 THE COURT: Usually when you have cases like
21 that, when you have traffic -- and there are some that go up,
22 but usually someone is asserting a constitutional right and,
23 of course, it costs a lot more to do that than it does to pay
24 a fine in a traffic case; so, it's usually principle-based
25 and those go up either to the State or the US Supreme Court,
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 11
1 but there are some, you know, the red light camera, stuff has
2 gone up. I think the one recently that went up was the guy
3 that was driving on the left-hand -- in the left-hand lane,
4 outside lane. Police officer pulls him over for not driving
5 on the inside lane, you know, and you'll see those signs that
6 say slower traffic keep to the right. That one went up and
7 the issue was, was there notice sufficient that he should
8 have known to stay on the right-hand side of the road if he's
9 not passing, you know. Cases like that will go up and that
10 was a Texas Supreme Court case that came down, what, end of
11 last year?
12 MR. YAKOVSKY: I think so.
13 THE COURT: That's when TXDOT came back and put
14 up all those signs all over the place so now there's no
15 question about that, but -- let's do that, see if you can
16 find anything and, Mr. Yakovsky, you take a look, too.
17 MR. YAKOVSKY: Sure, Judge. I will. Then,
18 like I said, I did want to review whatever I could and I ran
19 into the same difficulty. It's real hard to touch on any
20 case that doesn't result in some arrestable offense, such as
21 a DUI, a possession of a controlled substance. You've always
22 got a fruit and search and seizure as a result of the initial
23 traffic stop, then you, you know, course of practice is to
24 start with the traffic stop and go from there to see if you
25 can eliminate the stuff that's going to get you in real
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 12
1 trouble.
2 THE COURT: Well, and one thing we can do, too,
3 I didn't see and I may have just missed it, when did you file
4 your election for Bench trial over a jury trial?
5 MR. DAVIS: I would say it's about a month ago.
6 MR. YAKOVSKY: Judge, he filed it whenever he
7 came for arraignment. He had the file -- I got a copy of it.
8 THE COURT: The Clerk's Office, for some
9 reason, has not been bradding these down and, so, I have
10 these loose in the file and I didn't see it. Let me
11 double-check.
12 MR. DAVIS: In the Defense's position on what
13 he's getting at about the search, the seizure is that the
14 actual stop was the seizure. It appears from Mr. Yakovsky's
15 response brief, he stated there was no arrest, no searches,
16 no seizures; so, I'm assuming he's not agreeing with that
17 premise, but that's the Defense's premise on that.
18 THE COURT: Okay. All right. Well, if you
19 can, find some caselaw on that for me as well.
20 MR. YAKOVSKY: This was it. It's titled as a
21 Defendant's Waiver for Bench Trial and Revocation of Previous
22 Application for --
23 THE COURT: Okay. I haven't seen that. So,
24 the Clerk's Office has either lost it or they have filed it
25 in another case.
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 13
1 MR. DAVIS: Yes, sir.
2 THE COURT: So -- but with that being said,
3 probably the easiest thing to do since it's not a jury trial,
4 you can argue all of these issues at trial and, so, I'll just
5 set it for a Bench trial. I would suspect probably, what,
6 hour, hour and a half to try it?
7 MR. DAVIS: I would hope so.
8 THE COURT: I wouldn't think it would take
9 longer than that. I would suspect we would have your
10 testimony and the testimony of the officer, you know, because
11 one of the issues that you'll presumably make at trial is,
12 you know, Number 1, did the officer actually give you a
13 ticket that was proper, you know, was the stop good, was he
14 right on what he did, was his radar working right, those
15 kinds of issues; so, a lot of times, if you don't have a jury
16 involved, it's easier just to do it all at one time, then I
17 can take up those issues rather than everybody have to come
18 back multiple times, but do that. Look -- if that's okay,
19 I'll just set it for a trial.
21 THE COURT: My court coordinator's given me the
22 date of October 10th or October 23rd.
23 MR. DAVIS: 10th should be good.
24 THE COURT: Is that good for you, Mr. Yakovsky?
25 MR. YAKOVSKY: I'm sure.
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 14
1 THE COURT: We have from 10:00 to 11:30 --
2 didn't I set a hearing on that date just a couple days ago?
3 I thought I did, October the 10th.
4 MR. TAYLOR: I believe that was the juvenile
5 for that -- which they ended up -- they agreed to it.
6 THE COURT: That's right. It was an agreed
7 modification; so, I canceled that. Okay. So, from 10:30 to
8 12:00 --
9 THE COORDINATOR: No, 10:00 AM.
10 THE COURT: 10:00 AM to 11:30?
11 THE COORDINATOR: Uh-huh.
12 MR. DAVIS: The Defense would prefer to -- if
13 possible, the suppression issue separate before trial that
14 date.
15 THE COURT: Why?
16 MR. DAVIS: Just so there's a record of it for
17 appeal. That way, it doesn't get messy.
18 THE COURT: There'll be a record. You'll have
19 your record and what will happen is on the Motion to
20 Suppress, like I say, I'll just take it all at one time, then
21 I'll make a ruling on your Motion to Suppress in addition to
22 the trial.
23 MR. DAVIS: Yes, sir, that's fine. I just
24 didn't want it to get confusing trying to --
25 THE COURT: It won't.
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 15
1 MR. DAVIS: -- sort it out.
2 THE COURT: Because, like I say, I'll make
3 separate rulings.
4 MR. DAVIS: That's fine.
5 THE COURT: As short of a hearing as it's going
6 to be, the Court of Appeals, if it goes up, they won't --
7 they see messy stuff all the time that's -- you know, weeks
8 and months long. Hour and a half won't give them any
9 trouble, but I do want you to have some caselaw for me to
10 support your two positions.
11 MR. DAVIS: Yes, sir.
12 THE COURT: Number 1, that the stop itself is a
13 seizure and Number 2, that your identity and information is a
14 seizure after the stop.
15 MR. DAVIS: Yes, sir. And would you prefer
16 those in writing, submitted prior to trial?
17 THE COURT: The cases?
18 MR. DAVIS: Yes, sir, as like a supplemental
19 motion on that, just so you have them in writing?
20 THE COURT: Probably, yeah, I would prefer to
21 have the cases, you know, couple of days or a week prior to
22 trial.
23 MR. DAVIS: I can do that.
24 THE COURT: We don't have that many weeks prior
25 to trial since we're going to do it on the 10th, but, yeah,
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 16
1 give me an opportunity to review them and make sure and give
2 Mr. Yakovsky a copy so he can review them and respond to
3 them, if necessary, and then, of course, Mr. Yakovsky, if he
4 finds something that's favorable to you or favorable to the
5 State, then he needs to give you a copy of it as well.
6 MR. DAVIS: Yes, sir.
7 THE COURT: All right. Any other questions?
8 MR. DAVIS: No, Your Honor.
9 THE COURT: No. Mr. Yakovsky?
10 MR. YAKOVSKY: All good, Judge.
11 THE COURT: Mr. Davis, let me give you this.
12 It's just a court setting date.
13 MR. DAVIS: Yes, sir.
14 THE COURT: So, 10/10/14. Okay. We're
15 adjourned. See you back on the 10th.
16 (Proceedings adjourned)
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 17
4 County Court at Law No. 2 of Angelina County, State of Texas,
7 and other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's
9 Record, in the above-styled and numbered cause, all of which
10 occurred in open court or in chambers and were reported by
16 preparation of this Reporter's Record is $__________ and will
22 ______________________________ ELIZABETH MURPHY, CSR #4832 23 Expiration Date: 12/31/2014
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 1
2 VOLUME 3 OF 3 VOLUMES
5 THE STATE OF TEXAS § IN THE COUNTY COURT § 6 VS. § AT LAW NUMBER TWO OF § 7 DAVID MARK DAVIS II § ANGELINA COUNTY, TEXAS
12 BENCH TRIAL _____________________________ 13
20 On the 10th day of October, 2014, the following
22 numbered cause before the Honorable Derek C. Flournoy, Judge
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 2
2 Mr. James Yakovsky Mr. David Mark Davis, II ASSISTANT COUNTY ATTORNEY 11 Glenview Court 3 SBOT NO. 24030668 Lufkin, TX 75901 215 E. Lufkin Avenue (936) 238-8507 4 Lufkin, TX 75901 APPEARING PRO SE (936) 639-3929 5 ATTORNEY FOR STATE
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 3
1 I N D E X VOLUME 3 2 (BENCH TRIAL) Page Vol. 3 OCTOBER 10, 2014
4 Opening comments by the Court . . . . . . . . . . . . 4 3
5 Argument regarding Motion to Suppress by Defendant. . 4 3
6 Response regarding Motion to Suppress by State. . . . 5 3
7 Partial Denial of Motion to Suppress by the Court . . 5 3
8 No Contest Plea entered by Defendant. . . . . . . . . 5 3
9 Court's Ruling and Acceptance of No Contest Plea. . . 6 3
10 Oral Notice of Appeal entered by Defendant. . . . . . 6 3
11 Court's Ruling on Punishment. . . . . . . . . . . . . 8 3
12 Proceedings adjourned . . . . . . . . . . . . . . . . 8 3
13 Court Reporter's Certificate. . . . . . . . . . . . . 9 3
14 EXHIBIT INDEX
15 NO. DESCRIPTION OFFERED ADMITTED VOL.
16 NONE
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 4
1 THE COURT: All right. I believe we're waiting
2 on your primary witness.
3 MR. YAKOVSKY: Yes, Judge. He was on his way
4 from the police station. They were -- he called me early
5 this morning and said he might be running just right at it
6 because they're four officers short this morning. They had a
7 bunch of people call in.
8 THE COURT: Okay. Well, while we're waiting on
9 him to get here, I'm going to go ahead and take up Mr. Davis'
10 initial -- I think your initial premise of your Motion to
11 Suppress.
12 MR. DAVIS: Yes, sir.
13 THE COURT: And that is that you believe that
14 because the stop was warrantless, you believe that the burden
15 shifts to the State to produce that burden to show that it
16 was -- that they had reasonable suspicion --
17 MR. DAVIS: Correct, Your Honor.
18 THE COURT: -- otherwise. All right. I'll go
19 ahead and let you make your argument in that regard. If
20 you'll stand for me when you do that.
21 MR. DAVIS: Yes, sir. Just ask the Court to
22 take note -- notice that the traffic stop was initiated
23 without a warrant. That's all I got.
24 THE COURT: And those are your sole grounds for
25 that --
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 5
1 MR. DAVIS: Yeah, that's my sole ground.
2 THE COURT: -- premise. Okay. Mr. Yakovsky,
3 do you have a response?
4 MR. YAKOVSKY: Judge, I believe we've got
5 reasonable suspicion of the traffic offense that was
6 committed in plain view of the officer based upon a
7 reasonable suspicion to make a stop. There was no arrest in
8 this case. It was just a traffic stop and a citation issued
9 for a speeding violation and a notice to appear; so,
10 therefore, I don't think we're triggering all the things that
11 Mr. Davis may have concerns about.
12 THE COURT: All right. Well, I'm going to deny
13 that portion, Mr. Davis, of your -- of your Motion to
14 Suppress.
15 MR. DAVIS: Yes, sir.
16 THE COURT: Are you ready to proceed with the
17 remainder of your Motion to Suppress?
18 MR. DAVIS: Yes, sir. I'd like to enter a no
19 contest plea conditioned on my right to appeal.
20 THE COURT: Any objection?
21 MR. YAKOVSKY: No objection, Your Honor.
22 THE COURT: No?
23 MR. DAVIS: And as far as punishment goes,
24 there's no agreements with me and the State, just throw
25 myself to the mercy of the Court.
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 6
1 THE COURT: Okay. All right. Just one second.
2 Thank you for that. All right. For the record's purposes,
3 the Court has denied Mr. Davis' motion to shift the burden to
4 the State regarding the traffic stop. It's the Court's
5 opinion that a warrant is not required on a traffic stop if
6 the officer has reasonable suspicion to make the stop;
7 therefore, that is the Court's reasoning in the failure -- in
8 the refusal to shift the burden to the State.
9 Mr. Davis has entered a plea of no contest at
10 this time. I'll accept your plea of no contest at this time.
11 Does the State have any evidence on punishment?
12 MR. YAKOVSKY: No, Your Honor.
13 THE COURT: No?
14 MR. YAKOVSKY: We wouldn't have any --
15 THE COURT: Mr. Davis, do you have any
16 testimony you'd like to give regarding punishment?
17 MR. DAVIS: No, Your Honor.
18 THE COURT: No.
19 MR. DAVIS: Also, Your Honor, if you could --
20 I'd like to request a -- enter my notice of appeal on the
21 record and request appeal bond be set.
22 THE COURT: Okay. Thank you. Do you know what
23 court costs are, Mr. Yakovsky?
24 MR. YAKOVSKY: Judge, let me take a look. I
25 believe -- I think we've got a cost sheet over here.
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 7
1 MR. DAVIS: Just to be fair, there was two
2 subpoenas served by Constable Selman and I don't know if
3 they've been processed yet, as far as the fees for those,
4 just make sure -- I mean, I'm gonna appeal so they'd be under
5 bond, but just in case when it finals out, he gets what he's
6 supposed to get for his work.
7 THE COURT: Well, there's no -- no fee on a
8 criminal subpoena.
9 MR. DAVIS: Yes, sir. Thank you.
10 THE COURT: Who are the people that you speak
11 of?
12 MR. DAVIS: These two gentlemen right here. I
13 guess this is the City of Lufkin engineer.
14 THE COURT: Are you Mr. Walker?
15 MR. WALKER: Yes, sir.
16 MR. DAVIS: And I do not know his name. The
17 lady I subpoenaed -- TXDOT called me. Their general counsel
18 had asked if I could substitute with one of their other
19 managers.
20 THE COURT: Okay.
21 MR. DAVIS: And --
22 MR. TEIMAN: Brad Teiman.
23 MR. DAVIS: Brad Teiman.
24 THE COURT: Brad Teiman. Okay. All right.
25 Mr. Teiman and Mr. Walker, at this time I'm going to release
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 8
1 you from your subpoena. You're free to go.
2 MR. YAKOVSKY: Judge, it looks like those court
3 costs are going to be 248.10. That's the non-drug, non-DWI,
4 citation to appear base cost of 218, plus we have the $30 for
5 transportation code cost and then 10 cents court cost on
6 moving violation.
7 THE COURT: Okay. Thank you.
8 MR. YAKOVSKY: So, brings it to a total of
9 248.10.
10 THE COURT: Mr. Davis, if you'll stand for me,
11 please.
13 THE COURT: At this time I'm going to assess a
14 fine of $75, plus court costs of 248.10.
16 THE COURT: Thank you. You can have a seat.
17 (End of requested proceedings)
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 9
4 County Court at Law No. 2 of Angelina County, State of Texas,
7 and other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's
9 Record, in the above-styled and numbered cause, all of which
10 occurred in open court or in chambers and were reported by
16 preparation of this Reporter's Record is $__________ and will
22 ______________________________ ELIZABETH MURPHY, CSR #4832 23 Expiration Date: 12/31/2014
Elizabeth Murphy, CSR P.O. Box 908, Lufkin, TX 75902-0908 County Court at Law #2 936-634-8984 Appendix B
Judgment of 12th Court of Appeals NO. 12-14-00296-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAVID MARK DAVIS II, § APPEAL FROM THE APPELLANT
V. § COUNTY COURT AT LAW # 2
THE STATE OF TEXAS, APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION David Mark Davis II attempts to appeal his conviction for speeding, for which he was assessed a fine of seventy-five dollars. Article 4.03 of the code of criminal procedure determines our jurisdiction in this matter. It provides as follows:
The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed or affirmed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.
TEX. CODE CRIM. PROC. ANN. art. 4.03 (West Supp. 2014). Appellant appealed from a municipal court to a county court at law. The county court at law imposed a fine that does not exceed one hundred dollars. Appellant does not complain that the statute on which his conviction was based is unconstitutional. Therefore, we have no jurisdiction over this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.1
1 Neither party raised the jurisdictional issue in its brief. However, we are required to address a lack of jurisdiction sua sponte if the parties do not raise the issue. Solis v. State, 890 S.W.2d 518, 520 (Tex. App.—Dallas 1994, no pet.). JAMES T. WORTHEN Chief Justice
Opinion delivered May 29, 2015. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
2 COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 29, 2015
NO. 12-14-00296-CR
DAVID MARK DAVIS II, Appellant V. THE STATE OF TEXAS, Appellee
Appeal from the County Court at Law No 2 of Angelina County, Texas (Tr.Ct.No. 14-1048)
THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this court that this court is without jurisdiction of the appeal, and that the appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance. James T. Worthen, Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.