ACCEPTED 03-15-00065-CR 6161368 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/21/2015 3:21:27 PM JEFFREY D. KYLE CLERK NO. 03-15-00065-CR
__________________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD SUPREME JUDICIAL DISTRICT7/21/2015 3:21:27 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk __________________________________________________________________
ELIZABETH ANN BLACK, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE __________________________________________________________________
ON APPEAL FROM COUNTY COURT-AT-LAW NUMBER FIVE TRAVIS COUNTY, TEXAS CAUSE NO. C1-CR-13-217530 __________________________________________________________________
APPELLANT’S REPLY BRIEF __________________________________________________________________
MERIL “GENE” ANTHES, JR. State Bar No. 24040125 Gene@GBAfirm.Com CHRISTOPHER M. GUNTER State Bar No. 08624600 Chris@GBAfirm.Com GUNTER, BENNETT & ANTHES, P.C. 600 West Ninth Street Austin, Texas 78701-2212 (512) 476-2494 (512) 476-2497 Facsimile Attorneys for Appellant __________________________________________________________________
ORAL ARGUMENT IS REQUESTED __________________________________________________________________ IDENTITY OF PARTIES AND COUNSEL
1. Appellant: Elizabeth Ann Black
2. Appellee: The State of Texas
3. Trial counsel for Appellant: Christopher M. Gunter and Meril “Gene” Anthes, Jr. Gunter, Bennett & Anthes, P.C. 600 West Ninth Street Austin, Texas 78701
4. Trial counsel for the State: Christyne Harris Schultz Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, Texas 78767
5. Counsel on appeal for Appellant: Meril “Gene” Anthes, Jr. and Christopher M. Gunter Gunter, Bennett & Anthes, P.C. 600 West Ninth Street Austin, Texas 78701
6. Counsel on appeal for the State: Giselle Horton Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, Texas 78767
7. Trial Judge: The Honorable Nancy Hohengarten County Court-at-Law No. Five Travis County, Texas Blackwell/Thurman Criminal Justice Center 509 West 11th, 4th Floor Austin, Texas 78701
i TABLE OF CONTENTS PAGE
IDENTITY OF PARTIES AND COUNSEL ......................................................... i
TABLE OF CONTENTS ........................................................................................ ii
INDEX OF AUTHORITIES................................................................................... iii
ARGUMENT .......................................................................................................... 1
PRAYER ................................................................................................................. 3
CERTIFICATE OF COMPLIANCE ...................................................................... 5
CERTIFICATE OF SERVICE ............................................................................... 5
ii INDEX OF AUTHORITIES
CASES PAGE
State v. Duran, 396 S.W3d 563 (Tex. Crim. App. 2013) .......................... 1-2
iii NO. 03-15-00065-CR __________________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT AUSTIN, TEXAS __________________________________________________________________
ELIZABETH ANN BLACK, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE __________________________________________________________________
ON APPEAL FROM COUNTY COURT-AT-LAW NUMBER FIVE TRAVIS COUNTY, TEXAS CAUSE NO. C1-CR-13-217530 __________________________________________________________________
APPELLANT’S REPLY BRIEF __________________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
COMES NOW Appellant Elizabeth Ann Black, by and through her
undersigned counsel, and offers Appellant’s Reply Brief, by which Appellant
respectfully shows the Court the following:
ARGUMENT
The State improperly argues that statements made by Appellant after she
was stopped by Officer Dominguez can be used to justify the stop. State’s Brief 3,
4, 8. A detention is either good or bad at the moment it starts. State v. Duran, 396
1 S.W. 3d 563, 569-570 (Tex. Crim. App. 2013). Information that the officer either
acquired or noticed after a detention or arrest cannot be considered in determining
whether an officer had reasonable suspicion to believe a crime had been committed
or was being committed. Id. at 569.
It should be noted that in addition to improperly arguing post-detention
statements by Appellant to justify the stop the state misrepresents what Appellant
actually told the officer. For instance, the State asserts, “Black told Rodriguez that
she had seen the barricade but was trying to get home.” State’s Brief at 3. The
videotape, however, makes clear that Appellant told him the opposite, that she
didn’t see a barricade.
(Officer Dominguez) Did you not see the barricade?
(Appellant) No, sorry I live right over there.
(Officer Dominguez) I don’t care where you live…you didn’t see the barricade? (Appellant) No, I did not.
3 RR State’s Exhibit #1 @ 3:00:30
In making Appellant’s statements the centerpiece of its argument, the State
ignores the facts that demonstrate a lack of reasonable suspicion to believe
Appellant was committing or had committed a crime:
The lane in which Appellant was traveling was wide open. 1 RR 18- 19.
2 There was no barricade in Appellant’s lane. 1 RR 18-19.
The police officer was parked behind a barricade in the adjacent lane to Appellant’s lane. 1 RR 8, 18-19.
The officer was not outside his vehicle directing drivers to stop as Appellant’s vehicle approached. 3 RR State’s Exhibit 1 @ 2:59:40. He was sitting in his vehicle until Appellant’s vehicle was virtually even with the officer’s car and he only yelled “Hey” as she drove past him. 3 RR State’s Exhibit 1 @ 2:59:42; 2 RR 9-10; 20.
The officer’s flashing overhead lights were not on as he sat behind the barricade. 2 RR 19-20.
A sign was present informing drivers such as Appellant that Barton Springs Rd. was to close at midnight Friday, 21 hours in the future. Nothing about the sign indicated the road was then closed. The sign read: “Barton Springs Rd. to close Friday 12 a.m. until Monday 3 a.m.” 2 RR 22-23.
Appellant did not ignore or fail to heed any sign.
Appellant did not go around or through any barricade; she simply drove past a barricade that was in the adjoining lane.
PRAYER
For the reasons set out above, Appellant respectfully prays this Court
overrule the trial court’s ruling and order that Appellant’s motion to suppress be
granted.
3 Respectfully submitted,
___________________________ MERIL “GENE” ANTHES, JR. State Bar No. 24040125 CHRISTOPHER M. GUNTER State Bar No. 08624600 GUNTER, BENNETT & ANTHES, P.C. 600 West Ninth Street Austin, Texas 78701-2212 (512) 476-2494 (512) 476-2497 Facsimile Attorneys for Appellant
4 CERTIFICATE OF COMPLIANCE
I certify that this document was prepared with Microsoft Word, and that,
according to that program’s word-count function, the sections covered by Texas
Rule of Appellate Procedure 9.4(i) contain 492 words.
____________________________ MERIL “GENE” ANTHES, JR. CHRISTOPHER M. GUNTER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief sent via certified mail to PO Box 1748, Austin, Texas 78767 to Giselle
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 03-15-00065-CR 6161368 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/21/2015 3:21:27 PM JEFFREY D. KYLE CLERK NO. 03-15-00065-CR
__________________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD SUPREME JUDICIAL DISTRICT7/21/2015 3:21:27 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk __________________________________________________________________
ELIZABETH ANN BLACK, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE __________________________________________________________________
ON APPEAL FROM COUNTY COURT-AT-LAW NUMBER FIVE TRAVIS COUNTY, TEXAS CAUSE NO. C1-CR-13-217530 __________________________________________________________________
APPELLANT’S REPLY BRIEF __________________________________________________________________
MERIL “GENE” ANTHES, JR. State Bar No. 24040125 Gene@GBAfirm.Com CHRISTOPHER M. GUNTER State Bar No. 08624600 Chris@GBAfirm.Com GUNTER, BENNETT & ANTHES, P.C. 600 West Ninth Street Austin, Texas 78701-2212 (512) 476-2494 (512) 476-2497 Facsimile Attorneys for Appellant __________________________________________________________________
ORAL ARGUMENT IS REQUESTED __________________________________________________________________ IDENTITY OF PARTIES AND COUNSEL
1. Appellant: Elizabeth Ann Black
2. Appellee: The State of Texas
3. Trial counsel for Appellant: Christopher M. Gunter and Meril “Gene” Anthes, Jr. Gunter, Bennett & Anthes, P.C. 600 West Ninth Street Austin, Texas 78701
4. Trial counsel for the State: Christyne Harris Schultz Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, Texas 78767
5. Counsel on appeal for Appellant: Meril “Gene” Anthes, Jr. and Christopher M. Gunter Gunter, Bennett & Anthes, P.C. 600 West Ninth Street Austin, Texas 78701
6. Counsel on appeal for the State: Giselle Horton Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, Texas 78767
7. Trial Judge: The Honorable Nancy Hohengarten County Court-at-Law No. Five Travis County, Texas Blackwell/Thurman Criminal Justice Center 509 West 11th, 4th Floor Austin, Texas 78701
i TABLE OF CONTENTS PAGE
IDENTITY OF PARTIES AND COUNSEL ......................................................... i
TABLE OF CONTENTS ........................................................................................ ii
INDEX OF AUTHORITIES................................................................................... iii
ARGUMENT .......................................................................................................... 1
PRAYER ................................................................................................................. 3
CERTIFICATE OF COMPLIANCE ...................................................................... 5
CERTIFICATE OF SERVICE ............................................................................... 5
ii INDEX OF AUTHORITIES
CASES PAGE
State v. Duran, 396 S.W3d 563 (Tex. Crim. App. 2013) .......................... 1-2
iii NO. 03-15-00065-CR __________________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT AUSTIN, TEXAS __________________________________________________________________
ELIZABETH ANN BLACK, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE __________________________________________________________________
ON APPEAL FROM COUNTY COURT-AT-LAW NUMBER FIVE TRAVIS COUNTY, TEXAS CAUSE NO. C1-CR-13-217530 __________________________________________________________________
APPELLANT’S REPLY BRIEF __________________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
COMES NOW Appellant Elizabeth Ann Black, by and through her
undersigned counsel, and offers Appellant’s Reply Brief, by which Appellant
respectfully shows the Court the following:
ARGUMENT
The State improperly argues that statements made by Appellant after she
was stopped by Officer Dominguez can be used to justify the stop. State’s Brief 3,
4, 8. A detention is either good or bad at the moment it starts. State v. Duran, 396
1 S.W. 3d 563, 569-570 (Tex. Crim. App. 2013). Information that the officer either
acquired or noticed after a detention or arrest cannot be considered in determining
whether an officer had reasonable suspicion to believe a crime had been committed
or was being committed. Id. at 569.
It should be noted that in addition to improperly arguing post-detention
statements by Appellant to justify the stop the state misrepresents what Appellant
actually told the officer. For instance, the State asserts, “Black told Rodriguez that
she had seen the barricade but was trying to get home.” State’s Brief at 3. The
videotape, however, makes clear that Appellant told him the opposite, that she
didn’t see a barricade.
(Officer Dominguez) Did you not see the barricade?
(Appellant) No, sorry I live right over there.
(Officer Dominguez) I don’t care where you live…you didn’t see the barricade? (Appellant) No, I did not.
3 RR State’s Exhibit #1 @ 3:00:30
In making Appellant’s statements the centerpiece of its argument, the State
ignores the facts that demonstrate a lack of reasonable suspicion to believe
Appellant was committing or had committed a crime:
The lane in which Appellant was traveling was wide open. 1 RR 18- 19.
2 There was no barricade in Appellant’s lane. 1 RR 18-19.
The police officer was parked behind a barricade in the adjacent lane to Appellant’s lane. 1 RR 8, 18-19.
The officer was not outside his vehicle directing drivers to stop as Appellant’s vehicle approached. 3 RR State’s Exhibit 1 @ 2:59:40. He was sitting in his vehicle until Appellant’s vehicle was virtually even with the officer’s car and he only yelled “Hey” as she drove past him. 3 RR State’s Exhibit 1 @ 2:59:42; 2 RR 9-10; 20.
The officer’s flashing overhead lights were not on as he sat behind the barricade. 2 RR 19-20.
A sign was present informing drivers such as Appellant that Barton Springs Rd. was to close at midnight Friday, 21 hours in the future. Nothing about the sign indicated the road was then closed. The sign read: “Barton Springs Rd. to close Friday 12 a.m. until Monday 3 a.m.” 2 RR 22-23.
Appellant did not ignore or fail to heed any sign.
Appellant did not go around or through any barricade; she simply drove past a barricade that was in the adjoining lane.
PRAYER
For the reasons set out above, Appellant respectfully prays this Court
overrule the trial court’s ruling and order that Appellant’s motion to suppress be
granted.
3 Respectfully submitted,
___________________________ MERIL “GENE” ANTHES, JR. State Bar No. 24040125 CHRISTOPHER M. GUNTER State Bar No. 08624600 GUNTER, BENNETT & ANTHES, P.C. 600 West Ninth Street Austin, Texas 78701-2212 (512) 476-2494 (512) 476-2497 Facsimile Attorneys for Appellant
4 CERTIFICATE OF COMPLIANCE
I certify that this document was prepared with Microsoft Word, and that,
according to that program’s word-count function, the sections covered by Texas
Rule of Appellate Procedure 9.4(i) contain 492 words.
____________________________ MERIL “GENE” ANTHES, JR. CHRISTOPHER M. GUNTER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief sent via certified mail to PO Box 1748, Austin, Texas 78767 to Giselle
Horton, Assistant County Attorney, Travis County, P.O. Box 1748, Austin, Texas
78767, on this the 22nd day of July, 2015.
____________________________ MERIL “GENE” ANTHES, JR. CHRISTOPHER M. GUNTER
5 July 21, 2015
Honorable Jeffrey D. Kyle Via Electronic Delivery Clerk of the Court Austin Court of Appeals Price Daniel Sr. Building 209 West 14th Street, Room 101 Austin, Texas 78701
RE: The State of Texas vs. Elizabeth Black No. 03-15-00065-CR On Appeal from Travis County Court-at-law Number Five Cause No. C1CR-13-217530
Dear Mr. Kyle:
Enclosed for filing please find Appellant’s Reply Brief in the above-referenced cause.
Thank you for your assistance in this matter. Please feel free to contact me should you have any questions.
Best regards,
Gene Anthes
cc: Giselle Horton Assistant Travis County Attorney P.O. Box 1748 Austin, Texas 78767