ACCEPTED 01-15-00246-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 10/21/2015 8:17:17 AM CHRISTOPHER PRINE CLERK
NO. 01-15-00246-CR IN THE FILED IN 1st COURT OF APPEALS COURT OF APPEALS HOUSTON, TEXAS FIRST JUDICIAL DISTRICT 10/21/2015 8:17:17 AM CHRISTOPHER A. PRINE HOUSTON, TEXAS Clerk
__________________________________________________________________ DORSEY NATHANIEL CARR, III, FILED IN Appellant 1st COURT OF APPEALS HOUSTON, TEXAS Vs. 10/21/2015 8:17:17 AM CHRISTOPHER A. PRINE THE STATE OF TEXAS, Clerk
Appellee __________________________________________________________________ ON APPEAL IN CAUSE NO. 74,219 239th JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS HONORABLE PATRICK SEBESTA, JUDGE PRESIDING __________________________________________________________________
BRIEF FOR THE STATE __________________________________________________________________
JERI YENNE DAVID BOSSERMAN CRIMINAL DISTRICT ATTORNEY Assistant Criminal District Attorney BRAZORIA COUNTY, TEXAS 111 E. Locust, Suite 408A Angleton, Texas 77515 (979) 864-1230 (979) 864-1525 (Fax) Bar Card No. 02679520 davidb@brazoria-county.com
ATTORNEYS FOR APPELLEE Oral Argument is Not Requested DATE: OCTOBER 21, 2015 NO. 01-15-00246-CR IN THE 239TH JUDICIAL DISTRICT COURT § COURT OF APPEALS OF § FIRST JUDICIAL DISTRICT BRAZORIA COUNTY, TEXAS § HOUSTON, TEXAS DORSEY NATHANIEL CARR, III, Appellant Vs. THE STATE OF TEXAS, Appellee __________________________________________________________________
BRIEF FOR THE APPELLEE __________________________________________________________________ TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: The State of Texas, the prosecuting authority in Cause No. 74,219 in the
239th Judicial District Court of Brazoria County, Texas, respectfully submits this
brief in reply to the brief of Defendant-Appellant, DORSEY NATHANIEL CARR,
III, and would respectfully show the Court the following:
ii SUBJECT INDEX
Parties To The Case................................................................................................iv List of Authorities....................................................................................................v Statement Of The Case............................................................................................1 Statement Of Facts..................................................................................................1 Summary Of Argument..........................................................................................6 First Point of Error..............................................................................................6 Second Point of Error..........................................................................................7 STATE’S REPLY TO APPLEANT’S FIRST POINT OF ERROR...................8 The Appellant claims trial counsel was ineffective in failing to file a motion to suppress the stop, claiming there was no reasonable suspicion to justify it. There was reasonable suspicion to justify the stop and trial counsel was not ineffective in failing to file a motion to suppress the stop..............................................................................8 DISCUSSION...........................................................................................................8 Ineffective Assistance – Standard of Review......................................................8 Ineffective Assistance by Failure to Present Motion to Suppress...................10 Investigative Detention......................................................................................11 Analysis..............................................................................................................13 Burden to Show Prejudice from the Record.....................................................18 STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR.........20 The Appellant claims that the evidence in the record of the Appellant’s ability to pay his attorney fees was insufficient to support the assessment of these fees against him. The State concedes error...........................................................................................20 DISCUSSION.........................................................................................................20 CONCLUSION......................................................................................................21 CERTIFICATE OF COMPLIANCE..................................................................22 CERTIFICATE OF SERVICE............................................................................22
iii PARTIES TO THE CASE APPELLANT: DORSEY NATHANIEL CARR, III
Attorney for Appellant at Trial:
Name: Laura Dagley Dowdy Address: 801 Congress, Ste. 400 Houston, TX 77002
Attorney for Appellant on Appeal:
Name: John Davis Address P.O. Box 787 Angleton, TX 77516-0787
APPELLEE: THE STATE OF TEXAS
Attorney for the State at Trial:
Name: Aaron Perry, Lilian Martinez Address: Brazoria County Criminal District Attorney’s Office Brazoria County Courthouse 111 E. Locust, Suite 408A Angleton, Texas 77515 (979) 864-1230 (979) 864-1525 (Fax)
Attorney for the State on Appeal:
Name: David Bosserman Assistant Criminal District Attorney Address: Brazoria County Criminal District Attorney’s Office Brazoria County Courthouse 111 E. Locust, Suite 408A Angleton, Texas 77515 (979) 864-1230 (979) 864-1525 (Fax) davidb@brazoria-county.com
iv LIST OF AUTHORITIES
Cases
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) .................................... 10, 18 Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) ..........................12 Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001), cert. denied, 123 S.Ct. 1351 (2003).........................................................................................10 Hathorn v. State, 848 S.W.2d 101 (Tex. Crim. App. 1992), cert. denied, 113 S.Ct. 3062 (1993) ............................................................................................9 Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) .................................8 Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)........................................................................................11 In re Daniel, 396 S.W.3d 545 (Tex. Crim. App. 2013)..........................................21 Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994) ......................................9 Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998) ....................................10 Kesaria v. State, 148 S.W.3d 634 (Tex. App. - Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 270 (2006) .....................................................................9 Louis v. State, 825 S.W.2d 752 (Tex. App. - Houston [14th Dist.] 1992, pet. ref'd) .....................................................................................................16 Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) .......................................20 McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992), overruled on other grounds, 915 S.W.2d 9 (1994), cert. denied, 113 S.Ct. 2937 (1993) ...........9 Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002)......................................10 Mount v. State, 217 S.W.3d 716 (Tex. App. - Houston [14th Dist.] 2007, no pet.) ....................................................................................16
v Orsag v. State, 312 S.W.3d 105 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d) ....................................................................................................15 Roberson v. State, 852 S.W.2d 508 (Tex. Crim. App. 1993)..................................10 State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013).....................................9 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) .8 Terrell v. State, ___ S.W.3d ___, No. 14-14-00390-CR, 2015 WL 4594054, at (Tex. App. – Houston [14th Dist.] July 30, 2015, no pet.)...............................11 Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ................................9, 18 Wert v. State, 383 S.W.3d 747 (Tex. App. – Houston [14th Dist.] 2012, no pet.) ................................................................................................11, 18
Codes Tex. Crim. Proc. Code Ann. Art. 26.05 (Vernon Supp. 2013)...........................20
vi STATEMENT OF THE CASE
The Appellant was indicted for the offense of felony driving while
intoxicated, enhanced (CR 1 at 5). After hearing the evidence and the argument of
counsel, the jury found him guilty as charged beyond a reasonable doubt (CR 1 at
43, 53, 54; RR 5 at 51-52). At the punishment phase, the State admitted evidence
of several prior convictions for driving while intoxicated. The Jury assessed
punishment at 10 years imprisonment (CR 1 at 50, 53, 54; RR 6 at 5).
STATEMENT OF FACTS
The evidence showed the Appellant was stopped after a citizen called the
police to report his reckless driving. Based on personal observation and field
sobriety tests, Officers determined he was intoxicated. This was further confirmed
by a blood test.
On July 20, 2014, Jordan Brooks was driving back to his house in Angleton
from Surfside beach with his wife and children, a six and seven year old. He was
driving on Highway 523 (RR 3 at 25-27). A red van came up behind them and
almost rear-ended their car. The driver of the van then drove around them. When
he came back into his lane of travel, the Appellant almost clipped the front of their
vehicle. The van then went off the road and came back. When the driver came back
on the road, he went into oncoming traffic, almost hit another car head on, and then
swerved back into his lane. Mr. Brooks felt it was best to drive around this vehicle
1 and just get away from him (RR 3 at 27, 28). This occurred at about 6:00 pm. The
driver of the van was a white male (RR 3 at 28, 35, 36). There was only one person
in the van. The van was a nineties model red Plymouth or Chrysler van. Mr.
Brooks was not able to get a license plate (RR 3 at 28).
The reckless driver drove down Highway 523 towards Angleton and then
turned at Stratton Ridge Road toward Clute. When he made this turn, he did not
slow down, and his van almost flipped (RR 3 at 28, 29). Stratton Ridge Road is
also known as Highway 226 (RR 3 at 38). Mr. Brooks called 911 when the
Appellant first recklessly passed him. He did not want anyone to get hurt,
including himself or his family (RR 3 at 29). The State admitted the 911 call as
State’s exhibit one (RR 3 at 30).
In State’s exhibit one, Mr. Brooks describes the vehicle as a nineties model
red Chrysler minivan (RR at SX1 at 1:28). He told dispatch that the driver was on
Highway 523; had just turned onto Stratton Ridge Road; and was driving toward
Clute (RR at SX1 at :55, 1:10, 1:40, 2:30). He only made reference to a single
driver with no reference to any passengers (RR at SX1).
On July 20, 2014, around 6:00 or 6:30 pm, Patrol Officer Edward Burnett
with the Clute Police Department was notified by dispatch of a reckless driver in a
red minivan traveling into Clute from Stratton Ridge Road (RR 3 at 130-132). He
did not remember all the details as to how dispatch described the vehicle (RR 3 at
2 159). While on Main Street, he saw two vehicles matching the description given
him by dispatch. Stratton Ridge Road becomes Main Street. He first drove to the
vehicle which pulled into a convenience store because the other vehicle was
heading towards the police station (RR 3 at 133). However, the vehicle at the
convenience store was driven by a Hispanic male with two children, so he
immediately knew it was the wrong vehicle (RR 3 at 133). He did not talk to this
driver more than 10 to 15 seconds (RR 3 at 156). He then double backed toward
the other vehicle and saw it pulling into a bar. The bar was about a block and a half
to two blocks from where he first saw the two red vans (RR 3 at 163, 164).
Sergeant Soley, who he had been in radio contact with, pulled in first (RR 3 at 134,
135, 157). Officer Soley came in contact with the Appellant and gave him
standardized field sobriety tests (RR 3 at 138). Officer Burnett later transported the
Appellant to Brazosport Hospital for a blood draw (RR 3 at 139). The Appellant
voluntarily gave his consent for the blood draw. He signed the consent form which
was admitted into evidence (RR 3 at 140-145). Nurse Anel Casas drew the
Appellant’s blood (RR 3 at 145, 150, 151, 169-173).
Patrol Sergeant Jessie Soley with the Clute Police Department received a
dispatch of a report of a reckless driver that had turned onto Stratton Ridge Road
coming into Clute (RR 3 at 49). This was on July 20, 2014. Around 6:30 pm he
came in contact with a nineties model red Plymouth or Dodge minivan (RR 3 at
3 46-48, 76, 77). This matched the description given to him by dispatch (RR 3 at 49,
112). It was driven by a white male, which also matched the information given him
by dispatch (RR 3 at 112). Sergeant Soley identified the Appellant as the driver of
the vehicle (RR 3 at 48). The video from his patrol unit of the incident was
admitted as State’s exhibit three (RR 3 at 73, 74).
When the Sergeant made contact with the Appellant, he was getting out of
the driver’s seat of the vehicle. The Appellant was the only person in the vehicle.
The Appellant told him he was coming from Surfside beach (RR 3 at 49, 50, 76);
(RR at SX3 at :30, 1:55). When asked if he had been driving recklessly earlier, he
stated that he did not know, but then denied it (RR 3 at 51); (RR at SX3 at 1:00).
The Appellant had a strong odor of alcohol coming from his person; his speech
was very slurred; his balance unstable; and his eyes were red and bloodshot. He
admitted that he drank 5 beers (RR 3 at 52, 53); (RR at SX3 at 1:25). He agreed to
do field sobriety testing (RR 3 at 54, 55); (RR at SX3 at 3:00).
The Appellant had difficulty with the sobriety tests. First, he did not
complete the horizontal gaze nystagmus test. The Sergeant believed this is because
of lack of cooperation, but he was not sure. The Appellant would not focus on the
Officer’s pen during the test even though the Officer tried to administer the test
repeatedly (RR 3 at 56, 59) (RR at SX3 at 3:55). The Appellant had earlier
indicated problems with his eyes (RR 3 at 55). When the Appellant attempted the
4 walk and turn test, he lost his balance during the instructional phase; said he was
not able to do the test; and stopped (RR 3 at 60-62) (RR at SX3 at 5:30). During
the one legged stand test, he lifted his right foot off the ground about 3 inches;
immediately put it back down; and said that he couldn't do the test (RR 3 at 62, 63)
(RR at SX3 at 6:30). When asked to recite the alphabet, the Appellant left out a
letter (RR 3 at 64) (RR at SX3 at 7:15). Sergeant Soley then placed the Appellant
into custody. After the test, the Sergeant asked him how intoxicated he believed
himself to be on a scale of one to 10 and he answered that he was a 6 or 7 (RR 3 at
65) (RR at SX3 at 8:00). In the Officer’s opinion, the Appellant was intoxicated
(RR 3 at 66, 67, 78, 79).
The Appellant was transported to the station, given his DIC-24 warnings,
and there consented to give a blood sample (RR 3 at 66-69, 72). The Sergeant
asked for a blood sample rather than a breath test because it is difficult to get an
intoxilyzer operator to the jail to conduct a breath test (RR 3 at 91). Officer Burnett
transported Appellant to Brazosport Regional Hospital for the blood draw (RR 3 at
77). When the Appellant was brought back from blood draw, he urinated on the
floor in the holding cell even though he had been allowed to use the restroom
shortly before the blood draw (RR 3 at 78).
Paul Van Dorn, who works as director for the Brazoria County Sheriff's
Office Crime Laboratory, did the analysis of the Appellant’s blood (RR 4 at 10-
5 13). He determined the Appellant’s ethanol level to be 0.255 grams per 100
milliliters of blood, which is over three times the legal limit in Texas. In his
opinion, the Appellant was intoxicated (RR 4 at 17, 18).
SUMMARY OF ARGUMENT
First Point of Error
The Appellant claims trial counsel was ineffective in failing to file a motion
to suppress because he contends there was no reasonable suspicion to justify the
stop of his vehicle. He specifically claims that there was insufficient evidence to tie
in the Appellant with observations by a citizen witness that he was driving
recklessly. Trial counsel was not ineffective. The Appellant cannot meet his burden
to show prejudice because the Officer involved had reasonable suspicion to make
the stop. The evidence at trial showed:
1) A civilian, Jordan Brooks, observed a red 1990 model Plymouth or
Chrysler van being driven recklessly by a white male, who was by himself, at
approximately 6:00 pm on July 20, 2014.
2) Mr. Brooks observed the van driving on Highway 523 towards Angleton
and turning onto Stratton Ridge Road toward Clute.
3) The van almost rear ended Mr. Brook’s vehicle; almost clipped his
vehicle when it passed; ran off the road; drove back into oncoming traffic; almost
6 hit another vehicle head on; then almost flipped when it turned onto Stratton Ridge
Road.
4) Mr. Brooks called 911, telling them of the reckless driving. He described
the vehicle as a nineties model red Chrysler minivan; which had just turned onto
Stratton Ridge Road; and was driving toward Clute.
5) On July 20, 2014, around 6:00 or 6:30 pm, Patrol Officer Edward Burnett
with the Clute Police Department was notified by dispatch of a reckless driver in a
red minivan traveling into Clute from Stratton Ridge Road. While on Main Street,
which becomes Stratton Ridge Road, he observed the Appellant’s vehicle, which
met this description. The vehicle pulled into the parking lot of a bar. Sergeant
Soley, who Officer Burnett had been in radio contact with, pulled in the bar and
made contact with the Appellant. This contact subsequently resulted in the
Appellant’s arrest for the instant offense. The Appellant cannot show ineffective
assistance by not filing a motion to suppress because there was reasonable
suspicion for the stop.
Second Point of Error
The Appellant claims that the evidence in the record of the Appellant’s
ability to pay his attorney fees was insufficient to support the assessment of these
fees against him. The State concedes error on this claim.
7 STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR
The Appellant claims trial counsel was ineffective in failing to file a
motion to suppress the stop, claiming there was no reasonable suspicion to
justify it. There was reasonable suspicion to justify the stop and trial counsel was
not ineffective in failing to file a motion to suppress the stop.
DISCUSSION
Trial counsel was not ineffective in failing to file a motion to suppress. The
Appellant claims there was no reasonable suspicion to justify the stop. He claims
that there was insufficient evidence to tie the Appellant in with observations by a
citizen witness that he was driving recklessly. Trial counsel was not ineffective.
Ineffective Assistance – Standard of Review
The Appellate Courts use a two-pronged test to review claims of ineffective
assistance of counsel. A defendant must show trial counsel’s actions were not
reasonable and that the defendant suffered prejudice as a result of these
unreasonable acts. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984; Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim. App.
1999). First, a defendant must show that his counsel's representation fell below an
objective standard of reasonableness. Strickland, 104 S.Ct. at 2064. To prove this
deficiency in representation, the defendant must demonstrate that his counsel's
performance deviated from prevailing professional norms. Id. at 2065; McFarland
8 v. State, 845 S.W.2d 824, 842-43 (Tex. Crim. App. 1992), overruled on other
grounds, 915 S.W.2d 9 (1994), cert. denied, 113 S.Ct. 2937 (1993).
Second, the defendant must show prejudice. Strickland, 104 S.Ct. at 2064.
This requires the defendant to show that there is a reasonable probability that, but
for his counsel's unprofessional errors, the result of the proceeding would have
been different. Id. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. at 2068. Both prongs of the Strickland
test must be met before a case may be reversed for ineffective assistance of
counsel. Id. at 2064. A defendant bears this burden of proof by a preponderance of
the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Judicial scrutiny of counsel's performance must be highly deferential.
Appellate courts indulge a strong presumption that counsel was effective. Jackson
v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Isolated failures of counsel,
by themselves, do not constitute ineffective assistance of counsel. McFarland v.
State, 845 S.W.2d at 843; Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim.
App. 1992), cert. denied, 113 S.Ct. 3062 (1993). When evaluating an allegation of
ineffective assistance, an appellate court looks to the totality of the representation
and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999); Kesaria v. State, 148 S.W.3d 634, 638 (Tex. App. -
Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 270 (2006). The fact that another
9 attorney may have acted in a different manner will not be sufficient to prove
ineffective assistance. Kesaria, 148 S.W.3d at 638. An error in trial strategy will
be considered inadequate only if counsel's actions lack any plausible basis. Id.
A claim of ineffective assistance must be firmly founded in the record. Bone
v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Generally, the record on
direct appeal is not sufficient to establish a claim of ineffective assistance of
counsel because a silent record cannot rebut the presumption that counsel's
performance was based on sound or reasonable trial strategy. Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002); Kesaria, 148 S.W.3d at 638. In the
absence of a record explaining trial counsel's actions, a reviewing court most likely
cannot conclude trial counsel's performance fell below an objective standard of
reasonableness unless the conduct was so outrageous that no competent attorney
would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001), cert. denied, 123 S.Ct. 1351 (2003); Kesaria, 148 S.W.3d at 638.
Ineffective Assistance by Failure to Present Motion to Suppress
A defendant cannot show trial counsel is ineffective in failing to present a
motion to suppress unless he shows that the motion had merit and that a ruling on
the motion would have changed the outcome of the case. Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998); Roberson v. State, 852 S.W.2d 508,
510–12 (Tex. Crim. App. 1993). He must show by a preponderance of the evidence
10 that the motion to suppress would have been granted and that the remaining
evidence would have been insufficient to support his conviction. Wert v. State, 383
S.W.3d 747, 753 (Tex. App. – Houston [14th Dist.] 2012, no pet.). To meet this
burden, a defendant is required to produce evidence that defeated the presumption
of proper police conduct. Jackson v. State, 973 S.W.2d at 957; Wert v. State, 383
S.W.3d at 753. That there may be questions about the validity of a search is not
enough. Jackson v. State, 973 S.W.2d at 957.
Investigative Detention
In the instant case, the Appellant cannot show that trial counsel was
ineffective because the stop was a proper investigative detention. Under the Fourth
Amendment, a warrantless detention of a person that amounts to less than a full
custodial arrest must be justified by reasonable suspicion. State v. Kerwick, 393
S.W.3d 270, 273 (Tex. Crim. App. 2013). Terrell v. State, ___ S.W.3d ___, No.
14-14-00390-CR, 2015 WL 4594054, at *2 (Tex. App. – Houston [14th Dist.] July
30, 2015, no pet.). “[A] law enforcement officer's reasonable suspicion that a
person may be involved in criminal activity permits the officer to stop the person
for a brief time and take additional steps to investigate further.” Hiibel v. Sixth
Judicial Dist. Court, 542 U.S. 177, 185, 124 S.Ct. 2451, 2458, 159 L.Ed.2d 292
(2004). Reasonable suspicion to detain a person exists if an officer has specific,
articulable facts that, combined with rational inferences from those facts, would
11 lead him or her to reasonably conclude that the person detained is, has been, or
soon will be engaged in criminal activity. State v. Kerwick, 393 S.W.3d at 273.
These facts must show unusual activity, some evidence that connects the detainee
to the unusual activity, and some indication that the unusual activity is related to a
crime, but the likelihood of criminal activity need not rise to the level required for
probable cause to arrest. Id. at 273, 274. The test for reasonable suspicion is an
objective one that focuses solely on whether an objective basis exists for the
detention and disregards the officer's subjective intent. Id. at 274. A reasonable-
suspicion determination must be based on the totality of the circumstances, and
reasonable suspicion may exist even if the circumstances presented are as
consistent with innocent activity as with criminal activity. Id.
Moreover, the detaining officer need not be personally aware of every fact
that objectively supports a reasonable suspicion to detain. Rather, “the cumulative
information known to the cooperating officers at the time of the stop is to be
considered in determining whether reasonable suspicion exists.” Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A 911 police dispatcher is
ordinarily regarded as a “cooperating officer” for purposes of making this
determination. Id.
Finally, information provided to police from a citizen-informant who
identifies himself and may be held to account for the accuracy and veracity of his
12 report may be regarded as reliable. Id. at 914, 915. In such a scenario, the only
question is whether the information that the known citizen-informant provides,
viewed through the prism of the detaining officer's particular level of knowledge
and experience, objectively supports a reasonable suspicion to believe that criminal
activity is afoot. Id. at 915.
Analysis
The testimony presented at trial showed:
1) Jordan Brooks observed a red 1990 model Plymouth or Chrysler van
driven by a white male who was by himself at approximately 6:00 pm on July 20,
2014 (RR 3 at 25-27, 28, 35, 36).
2) Mr. Brooks observed the van driving on Highway 523 towards Angleton
and turning onto Stratton Ridge Road toward Clute (RR 3 at 25- 29).
3) The van was driven in a reckless manner. It almost rear ended Mr.
Brook’s vehicle; it almost clipped his vehicle when it passed; it ran off the road
into oncoming traffic, almost hitting another vehicle head on; then it almost flipped
when it turned onto Stratton Ridge Road (RR 3 at 27-29).
4) Mr. Brooks called 911, telling the dispatcher of the reckless driving. The
State admitted the 911 call as State’s exhibit one (RR 3 at 30). In State’s exhibit
one, Mr. Brooks described the vehicle as a nineties model red Chrysler minivan
(RR at SX1 at 1:28). He told dispatch that the driver was on Highway 523; had just
13 turned onto Stratton Ridge Road; and was driving toward Clute (RR at SX1 at :55,
1:10, 1:40, 2:30). He only makes reference to a single driver with no reference to
any passengers (RR at SX1).
5) On July 20, 2014, around 6:00 or 6:30 pm, Patrol Officer Edward Burnett
with the Clute Police Department was notified by dispatch of a reckless driver in a
red minivan traveling into Clute from Stratton Ridge Road (RR 3 at 130-132). He
did not remember all the details as to how dispatch described the vehicle (RR 3 at
159). While on Main Street, he saw two vehicles matching the description given
him by dispatch. Stratton Ridge Road becomes Main Street, so he was on the same
road that Mr. Brooks observed the Appellant turn onto. Officer Burnett first drove
to the vehicle which pulled into a convenience store (RR 3 at 133). However, the
vehicle at the convenience store was driven by a Hispanic male with two children,
so he immediately knew it was the wrong vehicle (RR 3 at 133). He did not talk to
this driver more than 10 to 15 seconds (RR 3 at 156). He then double backed
toward the other vehicle and saw it pulling into the parking lot of a bar. The bar
was about a block and a half to two blocks from where he first saw the two red
vans (RR 3 at 163, 164). Sergeant Soley, who he had been in radio contact with,
pulled in and came in contact with the vehicle (RR 3 at 134, 135, 157).
6) Patrol Sergeant Jessie Soley with the Clute Police Department received a
dispatch of a report of a reckless driver that had turned onto Stratton Ridge Road
14 coming into Clute (RR 3 at 49). This was on July 20, 2014. Around 6:30 pm he
came in contact with a nineties model red Plymouth or Dodge minivan (RR 3 at
46-48, 76, 77). This matched the description given to him by dispatch (RR 3 at 49,
112). It was driven by a white male, which also matched the information given him
by dispatch (RR 3 at 112). When the Sergeant made contact with the Appellant, he
was getting out of the driver’s seat of the vehicle. The Appellant was the only
person in the vehicle. The Appellant told him he was coming from Surfside beach
(RR 3 at 49, 50, 76); (RR at SX3 at :30, 1:55). When asked if he had been driving
recklessly earlier, he first stated that he did not know, but then denied it (RR 3 at
51); (RR at SX3 at 1:00). The Appellant had a strong odor of alcohol coming from
his person; his speech was very slurred; his balance unstable; and his eyes were red
and bloodshot. He admitted that he drank 5 beers (RR 3 at 52, 53); (RR at SX3 at
1:25). From this point field sobriety tests and a blood test confirmed the
Appellant’s intoxication.
The above evidence was more than sufficient to provide reasonable
suspicion for an investigative stop. In Orsag v. State, 312 S.W.3d 105 (Tex. App. –
Houston [14th Dist.] 2010, pet. ref’d), the defendant claimed there was insufficient
reasonable suspicion to stop him. He claims the information linking his vehicle to a
speeding vehicle observed earlier by another officer was inadequate to support the
stop. The officer who conducted the stop testified that dispatch informed him that a
15 blue Toyota pickup was seen speeding on Highway 59 in Houston about ten
minutes travel time away from where a second officer observed him. This was on a
Friday night. The Toyota was traveling in the arresting officer’s direction and this
officer saw him very soon after the dispatch. He had no other information
regarding the vehicle and had no separate reason to be suspicious of the vehicle.
But there were no other blue Toyota pickups in his area. The Court of Appeals held
that this information provided the officer sufficient reasonable suspicion to support
the Stop. Id. at 110-112 ; See also Mount v. State, 217 S.W.3d 716, 728, 729 (Tex.
App. - Houston [14th Dist.] 2007, no pet.) (finding reasonable suspicion sufficient
to stop “light colored” Cadillac pickup seen within minutes after officer received
call about a stolen white Cadillac pickup); Louis v. State, 825 S.W.2d 752, 756
(Tex. App. - Houston [14th Dist.] 1992, pet. ref'd) (finding reasonable suspicion
sufficient to stop three black males in light tan colored Cadillac based on report of
two black males driving away from a robbery in a white Oldsmobile).
In reaching its decision, the court considered six factors in reviewing the
sufficiency of the nexus between the first officer’s observations of speeding and
the subsequent location and stop of the suspect: (1) the particularity of the
description of the offender or the vehicle in which he fled; (2) the size of the area
in which the offender might be found, as indicated by such facts as the elapsed
time since the crime occurred; (3) the number of persons in that area; (4) the
16 known or probable direction of the offender's flight; (5) observed activity by the
particular person stopped; and (6) knowledge or suspicion that the person or
vehicle stopped has been involved in other criminality of the type presently under
investigation. Orsag v. State, 312 S.W.3d at 111. The court noted, however, that
the primary test is consideration of the totality of the circumstances and that the
factors may vary in different cases. Id. at 112.
In the instant case, the Appellant was stopped while driving in the same
direction, on the same road as where he had been observed driving recklessly
shortly prior to when he was stopped. The area he was stopped would be
considerably less crowded than Highway 59 in Houston on a Friday night. The
information relayed to dispatch in the instant case included the color, year, make,
and model of the vehicle; more information than that possessed by the officer in
the Orsag case. The record also suggests that Jordan Brooks gave information to
dispatch beyond the portion of the 911 tape admitted. Mr. Brooks testified that the
suspect vehicle was driven by a white male on who was by himself (RR 3 at 25-27,
28, 35, 36). Officer Burnett apparently had this information because he testified
that he immediately knew the first van he stopped was the wrong vehicle because it
was driven by a Hispanic male with two children (RR 3 at 133). In addition,
Sergeant Soley stated that dispatch informed him the van was driven by a white
17 male (RR 3 at 112). The evidence in the instant case was sufficient to show
reasonable suspicion for the stop.
Burden to Show Prejudice from the Record
Finally, the Appellant cannot meet his burden to show prejudice from the
record. The vagueness of some of the evidence presented at trial regarding the stop
demonstrates this flaw with the Appellant’s claim. Because the issue of reasonable
suspicion for the stop was not fully developed at trial, the Appellant cannot show
prejudice because his claim of ineffective assistance is not “firmly founded in the
record.” See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). For
example, the admission of the dispatch records as to the exact time the 911 call
was received and the exact time Sergeant Soley came in contact with the Appellant
was not presented to the trial court. This information would have aided the trial
court in determining reasonable suspicion for the stop. The record could, however,
be developed as part of a post-conviction writ.
The instant claim is not an appeal of a denial of a motion to suppress, but an
ineffective assistance of counsel claim. The Appellant, not the State, has the
burden to show prejudice. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). The Appellant must show by a preponderance of the evidence that the
motion to suppress would have been granted. Wert v. State, 383 S.W.3d 747, 753
(Tex. App. – Houston [14th Dist.] 2012, no pet.). To meet this burden, he is
18 required to produce evidence that defeats the presumption of proper police
conduct. Id. Any claim of ineffective assistance must be firmly founded in the
record. Bone v. State, 77 S.W.3d at 835. Because no motion to suppress the
detention was filed, the State did not develop evidence at trial to show reasonable
suspicion for the stop. The Appellant’s motion to suppress the blood does claim
lack of identification of the Appellant’s vehicle; but the Appellant argued in this
motion that this resulted in an inability to show the Appellant was driving in a
public place as required under section 724.012 of the Transportation Code (CR at
10, 11). Because Officer Burnett personally observed the Appellant driving,
whether the Appellant was driving recklessly earlier was inconsequential. There
was no need for the State to link the Appellant personally with the earlier reckless
driving observed by Mr. Brooks in order to show he was driving on a public road.
Because the issue of whether the stop was based on reasonable suspicion was not
fully developed, the Appellant cannot meet his burden to show, from the record,
that he was prejudiced by his counsel’s failure to file a motion to suppress. He
failed to meet the second prong of the Strickland test to show prejudice.
19 STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR
The Appellant claims that the evidence in the record of the Appellant’s
ability to pay his attorney fees was insufficient to support the assessment of these
fees against him. The State concedes error.
The Appellant complains that the Court assessed attorney fees in violation of
Article 26.05(g) of the Code of Criminal Procedure. That article provides:
(g) If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay. Tex. Crim. Proc. Code Ann. art. 26.05 (Vernon Supp. 2013).
The Judgment reflects the Appellant was assessed $2,954.53 in attorney fees
(CR 1 at 53, 54). Prior to trial, the Appellant filed an affidavit of indigence and
attorney Laura Dagley Dowdy was appointed to represent him at trial (CR at 4-8).
At the conclusion of trial, the trial court found that the Appellant was indigent and
did not have sufficient funds to pay for the appellate record or to pay for an
attorney on appeal. These were provided without cost to the Appellant (CR at 69,
69, 74). The record contains no indication of a hearing to determine if the
Appellant had the financial resources to pay for his trial attorney, nor does the
record reflect that this determination was made. In Mayer v. State, 309 S.W.3d 552
(Tex. Crim. App. 2010), the Court of Criminal Appeals held that in order to
20 comply with article 26.05, the record must contain evidence supporting a finding
that a defendant was able to pay his attorney fees. Id. at 557. Because this is a
matter of sufficiency of the evidence, the Appellant need not preserve error by
objecting before the trial court. Id. at 556. Once a defendant is determined by the
court to be indigent, he is presumed to remain indigent for the remainder of the
proceedings. Id. The State concedes that the evidence was insufficient to support
the assessment of attorney’s fees. The remedy is to delete the assessment of these
fees. See In re Daniel, 396 S.W.3d 545, 549 (Tex. Crim. App. 2013).
CONCLUSION
WHEREFORE, the State of Texas prays that judgment of conviction against
Appellant be upheld by the Court of Appeals for the First Judicial District of
Texas.
Respectfully submitted,
/S/ Jeri Yenne JERI YENNE CRIMINAL DISTRICT ATTORNEY BRAZORIA COUNTY, TEXAS SBN 04240950
/S/ David Bosserman DAVID BOSSERMAN Assistant Criminal District Attorney SBN 02679520 111 East Locust, Suite 408A Angleton, Texas 77515
21 (979) 864-1230 (979) 864-1525 (Fax)
ATTORNEYS FOR THE STATE OF TEXAS
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant Brief for the State, as calculated under Appellate Rule 9.4(i), contains 5,184 words as determined by the Word program used to prepare this document.
/S/ David Bosserman DAVID BOSSERMAN
CERTIFICATE OF SERVICE
The undersigned Attorney for the State of Texas certifies that a true copy of this brief was served by E-service in compliance with Local Rule 4 of the Court of Appeals or was served by fax in compliance with Article 9.5 of the Rules of Appellate procedure on John Davis, attorney for the Appellant, who offices at 205 N. Chenango, Angleton, Texas, this 21st day of October, 2015.