PD-0982-16
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 9/23/2016 11:40:18 PM Accepted 9/26/2016 3:53:20 PM ABEL ACOSTA
CASE NO. PD-0982-16 CLERK
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IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
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TAYLOR MARTIN KORB, Appellant V.
THE STATE OF TEXAS, Appellee
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On Petition for Discretionary Review from The First Court of Appeals In No. 01-15-00512-CR Affirming the Trial Court’s Judgment in Cause No. 1980492 from the County Criminal Court at Law Number Three (3)
Harris County, Texas
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APPELANT’S PETITION FOR DISCRETIONARY REVIEW
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DAN KRIEGER COLM A. KEANE TBN: 24064243 TBN: 24085408 215 East Galveston Street 17225 El Camino Real, Suite 320 League City, Texas 77573 Houston, Texas 77058 (281) 332-7630 Phone (281) 486-8125 x2 Phone (281) 332-7877 Facsimile (281) 480-0885 Facsimile dan@kriegerlawfirm.com colm@krieger-ongert.com
ATTORNEYS FOR APPELLANT, TAYLOR MARTIN KORB
September 26, 2016
ORAL ARGUMENT REQUESTED
IDENTITY OF JUDGES, PARTIES AND COUNSEL
Presiding Judge The Honorable Natalie Fleming County Criminal Court at Law Number Three (3) Houston, Harris County, Texas
Attorneys for Appellee (State of Texas) Napoleon Wilson Stewart, II (at trial) Molly Katharine Wurzer (at trial) Alan Curry (on appeal) Harris County District Attorney’s Office 1201 Franklin, Suite 600 Houston, Texas 77002
Attorneys for Appellant Dan Krieger (at trial and on appeal) Christopher Morton (at trial) 215 E. Galveston St. League City, Texas 77573
Colm A. Keane (on appeal) 17225 El Camino Real, Suite 320 Houston, Texas 77058
Appellant Taylor Martin Korb
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TABLE OF CONTENTS
IDENTITY OF JUDGES, PARTIES AND COUNSEL ..................................... ii TABLE OF CONTENTS .................................................................................... iii INDEX OF AUTHORITIES ............................................................................... iv STATEMENT REGARDING ORAL ARGUMENT ........................................ 1 STATEMENT OF THE CASE ........................................................................... 1 STATEMENT OF PROCEDURAL HISTORY ................................................ 2 APPELLANT’S GROUNDS FOR REVIEW .................................................... 3 APPELLANT’S FIRST GROUND FOR REVIEW (RESTATED) .................. 4
THE COURT OF APPEALS ERRED IN ACTING AS A FINDER OF FACT BY INFERRING FACTS UNSUPPORTED BY THE RECORD. .................... 4
APPELLANT’S SECOND GROUND FOR REVIEW (RESTATED) ............. 4
THE COURT OF APPEALS ERRED IN FINDING REASONABLE SUSPICION TO JUSTIFY AN INVESTIGATORY STOP OF APPELLANT. ............. 4
ARGUMENT AND REASONS FOR REVIEW ............................................... 4 PRAYER FOR RELIEF ..................................................................................... 8
CERTIFICATE OF COMPLIANCE .................................................................. 10 CERTIFICATE OF SERVICE ........................................................................... 10 APPELLANT’S APPENDIX ............................................................................. A
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INDEX OF AUTHORITIES
CASES
Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010)………………………………. 7
Korb v. State, 01-15-00512-CR, 2016 WL 2753509 (Tex. App.-Houston [1st Dist.] 2016)
(mem. op., not designated for publication)………………………… 2, 4, 6, 7
Hereford v. State, 339 S.W.3d 111, 119 (Tex. Crim. App. 2011)……………………………5, 6
Pipkin v. State, 114 S.W.3d 649, 652 (Tex. App.—Fort Worth 2003, no pet.) ……………. 8
Romero v. State, 800 S.W. 2d 539, 544 (Tex. Crim. App. 1990…………………………….. 6
Taflinger v. State, 414 S.W.3d 881, 884 (Tex.App.–Houston [1st Dist.] 2013, no pet.) ......... 8, 9
Terry v. Ohio, 392 U.S. 1, 21–22 (1968)………………………………………………….. 7
United States v. Sokolow, 490 U.S. 1, 7 (1989)………………………………………………………. 7
RULES Tex. R. App. P. 68.2 ……………………………………………………………… 2 Tex. R. App. P. 66.1 ……………………………………………………………… 3 Tex. R. App. P. 66.3(f) …………………………………………………………… 6
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STATEMENT REGARDING ORAL ARGUMENT Appellant requests oral argument as it will assist the Court in developing the issues and fashioning the proper relief. Oral argument would be of substantial assistance to this Court because case presents an important issue regarding the role of the court of appeals in inferring the trial court’s findings of fact in a motion to suppress and a police officer’s reasonable suspicion for an investigative detention.
STATEMENT OF THE CASE
Mr. Taylor Martin Korb (“Appellant”) was charged with Driving While Intoxicated, a class B misdemeanor. (C.R. at 5).1 Appellant filed a motion to suppress the traffic stop on March 13, 2015. (C.R. at 23-24). The trial court heard Appellant’s motion to suppress on April 28, 2015 and denied the motion to suppress the traffic stop. (III R.R. at 42). A jury trial commenced immediately after the suppression hearing and on the same date. (C.R. at 27-32). Defendant was convicted of Driving While Intoxicated on April 29, 2015 and sentenced by the Court to one hundred eighty days in the Harris County Jail, probated for twelve months and a $500 fine. (C.R. at 41-42).
Appellant appealed his conviction and sentence to the First Court of Appeals
1 “C.R.” Will be used to reference the Clerk’s Record. “R.R.” will be used to reference the Reporter’s Record from Appellant’s trial.
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in Case No. 01-15-00512-CR, and the Court affirmed the trial court’s judgment on May 10, 2016.
STATEMENT OF PROCEDURAL HISTORY The order of the trial court was affirmed by the First Court of Appeals in an opinion delivered May 10, 2016. Korb v. State, 01-15-00512-CR, 2016 WL 2753509 (Tex. App.—Houston [1st Dist.] 2016)(mem. op., not designated for publication). The motion for rehearing was denied on July 25, 2016, and the motion for en banc reconsideration was denied on July 25, 2016. Appellant’s Motion for an extension of time to file the Petition for Discretionary Review was granted on August 25, 2016. This Petition for Discretionary Review will be filed on or before the extended deadline of September 23, 2016, pursuant to Tex. R. App. P. 68.2.
The Appellant presents two (2) grounds for review before this Honorable Court.
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CASE NO. PD-0982-16
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IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
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TAYLOR MARTIN KORB, Appellant V.
THE STATE OF TEXAS, Appellee
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APPELANT’S PETITION FOR DISCRETIONARY REVIEW
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TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, TAYLOR MARTIN KORB, Appellant in the above-styled and numbered cause of action, by and through counsel of record, Dan Krieger, and pursuant to Tex. R. App. P. 66.1, respectfully urges this Court to grant discretionary review of this cause, and in support thereof would show unto this Honorable Court the following:
GROUNDS FOR REVIEW
1. The Court of Appeals Erred In Acting As A Finder Of Fact By Inferring Facts Unsupported By The Record
2. The Court of Appeals Erred In Finding Reasonable Suspicion To Justify An Investigatory Stop of Appellant
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APPELLANT’S FIRST GROUND FOR REVIEW (RESTATED)
1. The Court of Appeals Erred In Acting As A Finder Of Fact By Inferring Facts Unsupported By The Record
APPELLANT’S SECOND GROUND FOR REVIEW (RESTATED)
2. The Court of Appeals Erred In Finding Reasonable Suspicion To Justify An Investigatory Stop of Appellant
ARGUMENT AND REASONS FOR REVIEW
Appellant was convicted of Driving While Intoxicated and sentenced to community supervision. Appellant sought relief at trial in the form of a motion to suppress because no articulable facts to establish reasonable suspicion for the stop of Appellant’s vehicle to take place were presented. The trial court erred in denying his motion to suppress and did not make any findings of fact. The facts the Court of Appeals inferred were not supported by the record or any findings of fact to establish reasonable suspicion. Instead, the Court created facts unsupported by the record and found evidence of burglaries and criminal mischief in the area where Appellant’s vehicle was stopped and linked it to Appellant. Korb v. Texas, Slip Op. at 5-6.
A. PRECEDENT REQUIRES A REVIEWING COURT TO INFER FACTUAL FINDINGS AS LONG AS THEY ARE SUPPORTED BY THE RECORD When a trial court hears and rules upon a Motion to Suppress and makes no
findings of historical fact, the appellate court will infer factual findings implicit in
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the trial court’s conclusion as long as the implied findings are supported by the record. Hereford v. State, 339 S.W.3d 111, 119 (Tex. Crim. App. 2011).
During the Motion to Suppress hearing, Officer Galvan of the Pasadena Police Department testified he was on-duty, working patrol, and sent to a residential neighborhood in Pasadena in regards to a 911 caller reporting a small, light-colored truck driving in the area on August 28, 2014 at approximately midnight. (III R.R. at 12). Officer Galvan stated he was familiar with the neighborhood and criminal mischief and burglaries occur there. (III R.R. at 9). No evidence was presented regarding the officer’s familiarity with these crimes with respect to the area, nor the number, dates, times, types, or proximity of the alleged crimes to the traffic stop. Officer Galvan testified that at the time of this call no criminal activity was reported and no illegal activity was reported. (III R.R. at 22, 27).
Officer Galvan testified that he arrived in the area and saw the Appellant driving a light colored truck and using a cellular phone. (III R.R. at 13-14). Officer Galvan reported that the 911 caller was identified by name and phone number. (III R.R. at 13). Officer Galvan testified that caller reported he had seen the vehicle three times over a period of ten minutes, with no other report of any other type of activity, criminal or otherwise. (III R.R. at 22). The caller was not presented as a witness at the suppression hearing or at trial.
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The Court of Appeals improperly inferred factual findings that were not supported by the record and acted as the fact finder by making its own finding of fact to affirm the trial court’s denial of the motion to suppress. The Court of Appeals found that Officer Galvan had “knowledge of facts which, given the totality of the circumstances, raised a reasonable suspicion that appellant was engaging or about to engage in criminal acts, such that the officer was justified in making the investigatory stop.” Korb v. State, Slip Op. at 6. By Officer Galvan’s own testimony, he did not have enough information to have a reasonable suspicion, solely based on Appellant driving around, that Appellant had committed a crime or was going to commit a crime. (III R.R. at 29).
On appeal, the appellate court should not engage in its own factual review, but decide whether the trial judge’s fact findings are supported by the record. Romero v. State, 800 S.W. 2d 539, 544 (Tex. Crim. App. 1990). If the trial court did not make fact findings, its implied findings inferred by the Court of Appeals must be supported by the record. Hereford at 119.
By making its own finding of fact, the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings to call for an exercise of the Court of Criminal Appeals power of supervision. See Tex. R. App. P. 66.3(f). Accordingly, this petition should be granted and the case remanded to the Court of Appeals to conduct a review limited to the trial court’s record.
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B. THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND PRECEDENT REQUIRE REASONABLE SUSPICION FOR A VALID WARRANTLESS DETENTION OF A PERSON Under the Fourth Amendment, a warrantless detention of a person that
amounts to less than a full-blown custodial arrest must be justified by a reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 21–22 (1968).
A police officer has reasonable suspicion to detain a person if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity. United States v. Sokolow, 490 U.S. 1, 7 (1989); Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).
This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. Here, the Court of Appeals erred by creating its own finding of fact by looking into the mind of the officer and discovering “knowledge of facts, which, given the totality of the circumstances, raised a reasonable suspicion that appellant was engaging or about to engage in criminal acts.” Korb v. State, Slip Op. at 5-6.
This Honorable Court has held that “[n]either time of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion.” Crain v. State at
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53. This Court has further found that those factors do not constitute reasonable suspicion. Id.
Nothing in the record shows Appellant was engaged in suspicious or illegal activity and there was no reasonable suspicion; the caller reported activity, but not criminal activity. Officer further testified that he would need further articulable facts to determine if a crime was going to be committed. (III R.R. at 29). The Appellant did not drive erratically, he did not look into vehicles, he did not pull into residential driveways and leave – he simply drove by. (III R.R. at 27).
The First Court of Appeals further improperly applied the analysis in Pipkin to this matter despite clearly distinguishable facts involving clear criminal activity versus no report of any type of criminal activity. In Pipkin, the caller observed per se illegal activity in that Pipkin was obstructing traffic by driving too slowly and being bent over lighting a crack pipe to smoke cocaine. Pipkin v. State, 114 S.W.3d 649, 652 (Tex. App.—Fort Worth 2003, no pet.). In contrast here, no illegal activity was reported in this matter - simply a person driving down the street. This case is also fundamentally and factually distinguishable from the holdings in both Pipkin and Taflinger v. State. In Taflinger, there was a specific report of wrongdoing – a store clerk, well-known to the officer, observed an intoxicated person driving away from the store. Taflinger v. State, 414 S.W.3d 881, 884 (Tex.App.–Houston [1st Dist.] 2013, no pet.). The officer observed the driver driving immediately after the
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report and believed in good faith that he observed the driver commit a traffic violation. Id. at 886. Here, in contrast, there was no report of intoxication, erratic driving, or other type wrongdoing – simply driving.
There was no illegal or suspicious activity committed by the Appellant reported by the 911 caller apart from the Appellant simply driving down the street three times over the period of 10 minutes. At trial, the arresting officer in this matter made conclusory statements that Appellant’s actions were suspicious, but there were no specific articulable facts that reasonably support these claims, despite the officer having numerous opportunities to articulate such facts. Furthermore, there were no specific descriptions of the vehicle, driver, or license plate of the vehicle that would affirmatively link the vehicle Appellant was driving to the vehicle which was described by alleged caller.
PRAYER FOR RELIEF
Appellant prays this Honorable Court grant this Petition for Discretionary Review. Following the grant of review, Appellant prays that the judgment of the Court of Appeals be reversed and a new trial ordered, or the case remanded for further review.
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Respectfully submitted, LAW OFFICE OF DAN KRIEGER 215 E. Galveston St. League City, Texas 77573 (281) 332-7630 Tel. (281) 332-7877 Fax
By: /s/ Dan Krieger Dan Krieger State Bar No. 24064243 dan@kriegerlawfirm.com Colm A. Keane State Bar No. 24085408 colm@krieger-ongert.com Attorneys for Appellant
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CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Microsoft
Word and contains 2,570 words, and 24 pages, as determined by the computer software's word-count function, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1). This document complies with the typeface requirements of rule 9.4(e), as it is printed in a conventional 14-point typeface with footnotes in 12-point typeface.
/s/ Dan Krieger
Dan Krieger
CERTIFICATE OF SERVICE
A true and correct copy of the above and foregoing Appellant’s Petition for Discretionary Review has been forwarded to the following persons, in accordance with the TEXAS RULES OF APPELLATE PROCEDURE, on the 23rd day of September, 2016:
Alan Curry
Harris County District Attorney’s Office 1201 Franklin Street
Houston, Texas 77002
/s/ Dan Krieger
Dan Krieger
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APPELLANT’S APPENDIX
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LIST OF DOCUMENTS
1. First Court of Appeals’ Opinion of May 10, 2016 ……………………TAB 1
A
TAB 1
B
C
D
E
F
G
H