PD-1189-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS January 20, 2015 Transmitted 1/16/2015 2:00:36 PM Accepted 1/20/2015 11:50:02 AM ABEL ACOSTA No. PD-1189-14 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
FRANCHESKA V. JAGANATHAN, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Chambers County
________________________________________
FRANCHESKA V. JAGANATHAN’S BRIEF ON THE MERITS ________________________________________
Ryan W. Gertz The Gertz Law Firm 2630 Liberty Beaumont, TX 77702 Tel: (409) 833-6400 Fax: (409) 833-6401 Texas Bar. No. 24048489 TABLE OF CONTENTS
TABLE OF CONTENTS..........................................................................................ii
INDEX OF AUTHORITIES....................................................................................iii
STATEMENT OF THE CASE…………………………………………….............1
STATEMENT REGARDING ORAL ARGUMENT……………………………...2
STATEMENT OF FACTS…………………………………………………………2
SUMMARY OF THE ARGUMENT……………………………………………....4
ARGUMENT AND AUTHORITIES……………………………………………...5
CONCLUSION.......................................................................................................13
PRAYER FOR RELIEF…………………………………………………………..13
CERTIFICATE OF COMPLIANCE…………………...........................................14
CERTIFICATE OF SERVICE................................................................................15
ii INDEX OF AUTHORITIES
Cases
Abney v. State, 394 S.W.3d 542 (Tex. Crim. App. 2013)………………………….8
Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009)…………..................7, 8
Baker v. State, 50 S.W.3d 143 (Tex.App.-Eastland 2001, pet. ref'd)………………9
Bishop v. State, 85 S.W.3d 819 (Tex. Crim. App. 2002)………………………..7, 8
Castro v. State, 227 S.W.3d 737 (Tex. Crim. App. 2007)………………………….8
Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997)…………………………..8
Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005)…………….......................7
Green v. State, 93 S.W.3d 541(Tex.App.-Texarkana 2002, pet. ref'd)………….8, 9
Mouton v. State, 101 S.W.3d 686 (Tex.App.-Texarkana 2003, no pet.)…………...8
State v. Steelman, 93 S.W.3d 102, 106 n. 5 (Tex. Crim. App. 2002)……………....8
United States v. Garcia, 976 F.Supp.2nd 856(N.D. Tex 2013)…………………9, 10
Whren v. United States, 517 U.S. 806 (1996)………………………………………8
iii No. PD-1189-14 IN THE COURT OF CRIMINAL APPEALS
v. THE STATE OF TEXAS, Appellee
FRANCHESKA V. JAGANATHAN’S BRIEF ON THE MERITS ________________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now Francheska Jaganathan, by and through her Counsel, and
respectfully presents to this Court her brief on the merits.
STATEMENT OF THE CASE
Francheska Jaganathan was arrested for possession of marijuana on
June 5, 2010.1 Jaganathan filed a motion to suppress the evidence because
of an unlawful stop and the trial court held a hearing on April 5, 2012.2 In
December, 2012, Judge Carroll Wilborn denied the motion to suppress.3 In
April, 2013, Judge Randy McDonald heard Jaganathan’s guilty plea, but
granted her deferred adjudication community supervision and a fine of
1 RR 3. 2 RR 13-39. 3 RR 40. 1 $1,500 amongst other requirements. 4 The Court of Appeals reversed and
remanded on July 8, 2014. This Court granted the State’s Petition for
Discretionary Review on November 19, 2014.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument was not granted by the Court but Jaganathan
respectfully submits that oral argument would aid the Court in the
disposition of the case as it presents novel questions for consideration.
STATEMENT OF FACTS
The entire incident was captured on video and thus the facts are not
disputed. 5 Francheska Jaganathan, was pulled over while driving east-
bound through Chambers County on Interstate - 10. According to Trooper
Norsworthy, who pulled her over, Jaganathan was stopped for driving in the
left hand lane in a segment of the Interstate that requires vehicles to use the
left lane for “passing only” and for no other reason.6
The controlling “Left Lane For Passing Only” sign first appears in
Chambers County between Mile Marker 813 and Mile Marker 814.7 This
stretch of Interstate 10 has three lanes and a shoulder on both sides.
4 CR 4, 5. The State’s Brief to this Court mistakenly asserts that Jaganathan was convicted, she was not. 5 RR 4, Exhibit 2 – Video. 6 RR 2, 18. 7 RR 2, 19. Note to the Court: several such signs have now been added between Baytown and Winnie, however, in 2010 the sign at Mile Marker 813 was the first one on the east- bound side of Interstate - 10. 2 Jaganathan was passing vehicles via the left hand lane at the time she passed
both Mile Marker 813 and, subsequently, the “Left Lane For Passing Only”
sign.8 She was approached by the Trooper, crossed three lanes of traffic,
and stopped prior to arriving at Mile Marker 814. She was neither speeding
nor committing any objectively verifiable traffic offense. In all, Jaganathan
traveled less than half a mile in the left lane after passing the controlling sign
before the Trooper turned on his light bar and pulled her over.9
The video shows two vehicles were in the center lane between
Jaganathan and the Trooper: a blue truck - that she passes between the time
that she crosses the Mile Marker 813 sign and the “Left Lane For Passing
Only” sign - and a white sedan immediately in front of that truck. 10
Jaganathan appears to be driving faster than both the blue truck and the
white vehicle.11 The Trooper - in the right lane – was driving faster than the
speed of traffic.12 Once the Trooper came into Jaganathan’s line of sight,
she slowed down noticeably and the white vehicle began gaining ground on
8 RR 4, Exhibit 2; Video 1:09 – 1:26. 9 Expert Jack McClelland believed it was thirty-three seconds or less. See RR 2, 45; see also RR 4, Exhibit 2: Video 1:26 – 1:45 (when Trooper pulls in behind Jaganathan). 10 RR 4, Exhibit 2; Video 1:19-1:30; see also RR 2, 21-22 (Trooper Norsworthy agrees that a white vehicle was immediately in front the vehicle in the middle lane). 11 RR 4, Exhibit 2: Video 1:19-1:27. 12 RR 2, 20 & 30, RR 4, Exhibit 2; Video 00:00 – 1:20 (showing Trooper pass 12 vehicles in less than two minutes before pulling up to Jaganathan). Additionally, Trooper Norsworthy concedes he was going faster than the speed of traffic. RR 2, 20. 3 her.13 Between the time that Jaganathan passed the “Left Lane For Passing
Only” sign and the Trooper pulled into the middle lane, less than thirteen
seconds elapsed.14
During the course of the traffic stop, the Trooper smelled marijuana in
the vehicle and conducted a search. He found the vehicle contained
marijuana in the trunk. The Trooper did not obtain a warrant before
detaining the Defendant or searching the vehicle.
SUMMARY OF THE ARGUMENT
`The Court of Appeals correctly found that Trooper Norsworthy did
not have reasonable suspicion to conduct a traffic stop and warrantless arrest
of Jaganathan. The reasoning of the Court of Appeals was both fact-based
and sound. The Court concluded that Jaganathan completed a passing
maneuver in close proximity to the “Left Turn for Passing Only” sign and
increased the distance between her car and the car she passed; a white car
merged into the middle lane, making it potentially unsafe for her to change
lanes; the State Trooper approached Jaganathan’s vehicle at a high rate of
speed, which caused her to slow down and hindered her ability to pass the
white car in the middle lane; the State Trooper followed Jaganathan in the
left lane for only two tenths of a mile; and Jaganathan was not impeding
13 RR 2, 23 and RR 2, 30-31; RR 4, Exhibit 2: Video 1:33-1:40. 14 RR 4, Exhibit 2: Video 1:26 – 1:39. 4 traffic or endangering other drivers’ safety. The Court concluded, therefore,
that evidence did not give rise to reasonable suspicion that Jaganathan had
violated a traffic offense and thus she was seized of her liberty unlawfully.
This decision was correct and should be upheld.
ARGUMENT AND AUTHORITIES
1. Clarifying the Question Presented
Passing a vehicle, unlike speeding or using a turn signal, is not a
binary act. A vehicle is either exceeding the speed limit or is not. A driver
either uses a turn signal to indicate a lane change or does not. The State
incorrectly assumes, based on her issue presented, that passing is similar to
those offenses; it is not.
Passing, rather, involves a series of relatively complicated maneuvers
and calculations. One is not simply passing or not passing. Instead a driver
must: pass the slower vehicle at some speed exceeding the other vehicle’s
speed, travel a sufficient distance beyond that vehicle to safely pull back in
front of that vehicle, and do so while determining whether other vehicles in
the lane warrant passing or are a sufficiently safe distance ahead to make it
safe to pull back into the original lane. The law requires all of these tasks be
accomplished while neither speeding nor following too closely, yet properly
5 using turn signals, not placing other vehicles in danger, and – pertinent to
this case – not obstructing the passage for emergency vehicles.
Instead of considering the question: “Does driving in the left lane
while not ‘in the process of passing’ after passing a ‘Left Lane for Passing
Only’ sign provide reasonable suspicion of a traffic violation” as the State
would urge, the Court should consider a question driven by the actual facts
of this case.
The undisputed facts are: 1) Jaganathan had passed one vehicle and
was gaining ground on another when the “Left Lane Passing Only” sign
became effective, 2) Jaganathan slowed her vehicle once Norsworthy came
into view, 3) Trooper Norsworthy pulled into the center lane, traveling at a
high rate of speed, seconds after both vehicles passed the sign, and 4) it
would not have been reasonable or safe for Jaganathan to pull directly in
front of him into the center lane. Given those facts, the correct question for
the Court to consider is: When a driver proceeds for thirteen seconds – or
less than a quarter of a mile - in the left lane after simultaneously passing a
vehicle and a “Left Lane for Passing Only” sign, all the while gaining
ground on another vehicle, does a Trooper have sufficient evidence to
necessitate a traffic stop? Clearly the answer is no. For that reason,
Jaganathan would urge this Court to affirm the Court of Appeals reversal.
6 2. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, Texas
appellate courts use a bifurcated standard of review to evaluate whether
reasonable suspicion exists for a stop exists.15 Courts give deference to a
trial court's determination of the facts as supported by the record but
review de novo the trial court's application of the law to facts, which do not
turn on credibility and demeanor.16
Because the alleged traffic violation was caught on video, this case
presents a purely legal question as the facts are not – and should not be - in
dispute. The question presented does not turn on a question of fact or the
credibility of the witnesses but rather the reasonableness - as a matter of law
- of the stop itself. As such, the Court of Appeals correctly applied de novo
review.
3. Authority
When considering a motion to suppress, the Defendant initially bears
the burden of demonstrating that the search or seizure was conducted absent
a warrant.17 Once the defendant demonstrates that a warrantless seizure and
search occurred, the burden shifts to the State to prove a warrant existed or a
15 Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). 16 Id.; see also Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005). 17 Amador, 275 S.W.3d at 878; Bishop v. State, 85 S.W.3d 819, 821 (Tex. Crim. App. 2002). 7 recognized exception justifies the warrantless seizure or search given the
totality of the circumstances. 18 One exception would be that the officer
observed criminal activity or, as alleged in this case, a traffic violation.
To justify a traffic stop, an officer must observe specific and
articulable facts which, together with inferences from those facts, would
warrant a reasonable person to believe a traffic violation had
occurred. 19 Moreover, the United States Supreme Court has held that a
traffic stop will not be valid unless a reasonable officer in the same
circumstances would have stopped the car for the suspected offense.20
In Abney v. State, this Court outlined how courts should consider
cases involving stops for a violation of a “Left Lane for Passing Only”
requirement.21 The Court highlighted previous decisions where Defendants
had driven various distances in the left lane prior to being stopped on that
basis. 22 But, in each of those cases, there were no other vehicles in the
immediate vicinity of the offending vehicles.23
18 Amador, 275 S.W.3d at 878. See also Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007); State v. Steelman, 93 S.W.3d 102, 106 n. 5 (Tex. Crim. App. 2002); Bishop,85 S.W.3d at 822. 19 See Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997). 20 Whren v. United States, 517 U.S. 806, 809 (1996). 21 See generally Abney v. State, 394 S.W.3d 542 (Tex. Crim. App. 2013). 22 Abney, 394 S.W.3d at 546. 23 See Abney, 394 S.W.3d at 546 (discussing Mouton v. State, 101 S.W.3d 686, 690 (Tex.App.-Texarkana 2003, no pet.) (vehicle traveled at least a mile without passing another vehicle); Green v. State, 93 S.W.3d 541, 545 (Tex.App.-Texarkana 2002, pet. 8 After noting the vagueness of the Statute, the Court delineated a
totality of the circumstances test and suggested consideration of two key
questions: 1) how long must someone be traveling in the left lane without
passing another vehicle before a stop is warranted; and 2) how close must a
driver be to the controlling sign for it to control?24 In the present case, this
Court need only address the first question as there is no question that
Jaganathan passed the controlling sign - and it took effect – east of Mile
Marker 813.
Applying this Court’s test from Abney, a U.S. District Court recently
added two additional factors to that first question: 1) whether the video
shows the accused either actively passing another vehicle or in a position to
pass another vehicle and 2) whether the officer’s actions influenced the
accused’s driving.25 As to these two factors, the facts of the present case are
nearly identical to those in Garcia. In that case, the Trooper was passed by
Garcia in the left lane.26 The Trooper observed Garcia pass one vehicle and
was gaining ground on a large rig truck further ahead. The Trooper then
speed up his vehicle, closing the gap between his clearly marked patrol
ref'd) (no vehicles were in the vicinity of Green while she was in the left hand lane); Baker v. State, 50 S.W.3d 143, 145 (Tex.App.-Eastland 2001, pet. ref'd) (after passing the officer, Baker continued to travel in the left hand lane without passing another vehicle)). 24 Abney, 394 S.W.3d at 550. 25 United States v. Garcia, 976 F. Supp. 2d 856, 865-66 (N.D. Tex 2013). 26 Id. 9 vehicle and the rig truck. The Trooper testified that the offense Garcia
committed was failing to pull back into the right lane directly in front of his
now accelerating patrol vehicle.27 Yet, like the present case, the Trooper
acknowledged on cross examination that it would have been unsafe for
Garcia to pull directly in front of his patrol vehicle after he had accelerated
and closed the gap. 28 Like the present case, the distance the Trooper
observed Garcia’s driving was less than a mile. In granting Garcia’s motion
to suppress, the Court concluded that the Trooper did not have reasonable
suspicion of a traffic violation because he observed Garcia actively passing
one vehicle while gaining ground on another and the Trooper’s own actions
impacted the Garcia’s ability to safely get out of the left lane.29
4. Argument
Similar to Garcia, no reasonable officer would have initiated this stop
given the limited time between Jaganathan entering the “Left Lane for
Passing Only” zone and when the Trooper began pulling her over. Two key
facts illustrate why the stop was unreasonable: 1) that she was passing
vehicles at the time she passed the sign and was approached by the Trooper;
and 2) that the Trooper observed her for less than thirteen seconds in the
27 Id. at 866. 28 Id. 29 Id. 10 prohibited zone before pulling toward her to initiate a stop. Both facts
illustrate that the stop was both premature and unreasonable.
First, Jaganathan was passing a blue truck at the time she passed the
“Left Lane for Passing Only” sign and a white sedan was immediately in
front of the blue truck.30 She was clearly traveling faster than both vehicles
and would have overcome the white sedan in short order had circumstances
not changed. Even Trooper Norsworthy concedes that the white sedan was
in the middle lane directly in front of the blue truck – a fact the State
discounts in their brief to this Court.
With the white sedan immediately in front of the blue truck – it would
have been unreasonable for Jaganathan to proceed immediately to the
middle lane. And when the Trooper pulled into her line of site, Jaganathan
slowed and chose not to pull closer to the Trooper into the middle or right
lane.31 The Trooper even conceded that it would not be reasonable – and
people typically do not – pull closer to a clearly-marked patrol car
approaching at a high rate of speed.32 Thus, without the influence of the
Trooper approaching at a high speed in the right lane and proceeding to the
30 RR 4, Exhibit 2; Video 1:19-1:30; see also RR 2, 21-22 (Trooper Norsworthy agrees that the white vehicle was immediately in front the vehicle in the middle lane). 31 RR 2, 30-31 (Again, Trooper Norsworthy confirms this by agreeing that her “vehicle slowed noticeably,” RR2, 23). 32 RR 2, 23-24. 11 center lane, Jaganathan likely would have continued to pass the white
vehicle next.
Second, and more importantly, less than thirteen seconds elapsed from
the time Jaganathan passed the controlling sign and the time the Trooper
pulled into the middle lane closer to Jaganathan. At a speed of sixty-five
miles an hour, Jaganathan would have traveled less than a quarter of a mile
in thirteen seconds.33 Even if one were to consider the twenty-six seconds
that transpired from when she entered the restricted zone to the time the
Trooper turned on his lights, she would have traveled less than half a mile.
Given these indisputable facts, this Court need only determine
whether they amount to reasonable suspicion for a traffic stop. Certainly
they do not. Perhaps if no other vehicles had been in the center lane or the
Trooper had observed Jaganathan driving for some extended period in the
left lane without passing or she had been violating some objective standard –
the speed limit for example – that would have justified the stop; but this
Court need not consider such hypotheticals.
Put simply, the stop was premature at best. No reasonable officer
would observe Jaganathan’s conduct and conclude she was violating the 33 Jaganathan would ask the Court to take judicial notice of the fact that, at sixty miles per hour, a vehicle would travel one quarter of a mile in fifteen seconds. Thus, at a higher rate of speed the time necessary to travel a quarter of a mile would diminish. Numerous calculators are available on the web to calculate exact outputs based on a variety of variables such as speed and distance. 12 statute in question. She should not have been stopped and the trial court
erred by denying her motion to suppress. The Court of Appeals, however,
correctly reversed that decision. Jaganathan respectfully requests that this
Court affirm that decision.
CONCLUSION
The Court of Appeals correctly reversed the trial court’s denial of the
motion to suppress in this case. Given the indisputable video evidence, no
reasonable officer would have pulled Jaganathan over given the fact that she
had passed one vehicle and was gaining ground on another coupled with the
fact that the officer pulled into the center lane in a clearly marked vehicle at
a high rate of speed. The Trooper simply did not observe Jaganathan’s
driving for a sufficient period of time to determine whether she had
committed this particular traffic offense. This Court should affirm.
PRAYER FOR RELIEF
WHEREFORE, the Francheska Jaganathan prays that the Court of
Criminal Appeals AFFIRM the judgment of the Court of Appeals.
13 Respectfully submitted,
/s/ Ryan W. Gertz _________________________ Ryan W. Gertz The Gertz Law Firm 2630 Liberty Beaumont, TX 77702 Tel: (409) 833-6400 Fax: (409) 833-6401 Texas Bar. No. 24048489 Attorney for Francheska Jaganathan
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the Microsoft Word count
tool this document contains 3,000 words.
/s/ Ryan W. Gertz ______________________________ Ryan W. Gertz
14 CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 16th date of January,
2015, a true and correct copy of the Francheska Jaganathan’s Brief on the
Merits was e-filed or e-mailed to the following:
Eric Carcerano Assistant District Attorney Chambers County P.O. Box 1409 Anahuac, TX 77514 ecarcerano@co.chambers.tx.us
John R. Messinger Assistant State Prosecuting Attorney P.O. Box 13046 Austin, TX 78711 information@spa.texas.gov
/s/ Ryan W. Gertz _________________________ Ryan W. Gertz Attorney for Appellant