Robert Eugene Pritchett v. State

Opinion

ACCEPTED

12-14-00298-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

1/10/2015 12:03:08 PM

CATHY LUSK

CLERK

Court of Appeals Court Appeals

Texas

State of Texas Supreme Judicial District Twelfth Supreme FILED IN 12th COURT OF APPEALS

Texas

Tyler, Texas TYLER, TEXAS

_______________________________________________________________

1/10/2015 12:03:08 PM

CATHY S. LUSK

Clerk

12-14-00298-CR 12-14-00298-CR

__________________________________________________________________

Eugene Pritchett

Robert Eugene

Appellant

VS.

The State of Texas The

Appellee

____________________________________________________________________

On Appeal from the 273 On 273'“

rd

District Court

San Augustine County, Texas Cause No.

Trial Cause CR-13-8411 No. CR-13-8411

_________________________________________________________________________

APPELLANT’ S BRIEF APPELLANT’S BRIEF

_______________________________________________________________________________

Respectfully Submitted,

DONOVAN PAUL DONOVAN DUDINSKY PAUL DUDINSKY

24038869

Texas State Bar No. 24038869 701 South Liberty Street 701

75972

San Augustine, Texas 75972 275-9871

Tel. (936) 275-9871 Fax. (936)-275-9655

dpauldudinsky@yahoo.com

E-Mail: dpauldudinsky@yahoo.com

ATTORNEY FOR ATTORNEY FOR APPELLANT

APPELLANT

SUBMITTED FOR SUBMITTED FOR REVIEW REVIEW

Argument Not (Oral Argument Not Requested)

Page 11 of 60

OF PARTIES

IDENTITY OF I. IDENTITY AND COUNSEL PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s judgement The judgement or names and addresses of all trial and appellant counsel:

order appealed from, and the names

Parties: Parties: Appellant Eugene Pritchett Defendant -- Robert Eugene

Trial Counsel: Eugene Pritchett For Defendant, Robert Eugene Donovan Paul Dudinsky Donovan Rudy Valesquez Rudy

Appellate Counsel: Donovan Paul Dudinsky For Appellant: Donovan 701 South Liberty Street 701

75972

San Augustine, Texas 75972

Appellee Counsel: Kevin Dutton, District Attorney Appellee: J. Kevin

For Appellee:

Box 714

P. O. Box

75972

San Augustine, Texas 75972

Judge:

Trial Judge: Honorable Judge Charles Mitchell 273”rd Judicial District 273

75972

San Augustine, Texas 75972

Appellant’s Brief Eugene Pritchett Robert Eugene Page 2 of 60

II. TABLE OF II. TABLE CONTENTS

OF CONTENTS

I. I. IDENTITY OF PARTIES IDENTITY OF AND COUNSEL.................2 PARTIES AND COUNSEL ............... ..2 II. TABLE OF TABLE CONTENTS ............................................. ..3-4 OF CONTENTS...............................................3-4 III. INDEX OF INDEX OF AUTHORITIES..........................................5-9 AUTHORITIES ........................................ ..5-9 IV. STATEMENT OF STATEMENT THE CASE......................................11-12 OF THE CASE .................................... ..11-12 V. ISSUES PRESENTED ISSUES FOR REVIEW.........................13 PRESENTED FOR REVIEW ....................... 13 ..

VI. ARGUMENT AND ARGUMENT AND AUTHORITIES............................14-55 AUTHORITIES .......................... 14-55 ..

~~

VII. STATEMENT OF STATEMENT FACTS .........................................

OF FACTS........................................... ..

Point of Error No. 1.......................................................14 Point of Error No. 2.......................................................18-24 Point of Error No. 3.......................................................32-34 Point of Error No. 4.......................................................36-38 Point of Error No. 5.......................................................44-47

VIII. SUMMARY OF SUMMARY ARGUMENTS ................................

OF ARGUMENTS.................................. ..

Point of Error No. 1.......................................................14-15 Point of Error No. 2.......................................................25 Point of Error No. 3.......................................................34 Point of Error No. 4.......................................................38-39 5 ..................................................... ..47-48 Point of Error No. 5.......................................................47-48

IX. ARGUMENTS ............................................................

ARGUMENTS.............................................................. ..

........

.. 15-18

Point of Error No. 1.......................................................15-18 ........ ..25-31

Point of Error No. 2.......................................................25-31 ........ ..34-36

Point of Error No. 3.......................................................34-36 ~

4 ..................................................... ..39-44 Point of Error No. 4.......................................................39-44 5 ..................................................... ..48-55 Point of Error No. 5.......................................................48-55

X. CONCLUSION ........................................................... ..56-57 CONCLUSION.............................................................56-57

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene Page 3 of 60

XI. PRAYER .................................................................... .58 PRAYER......................................................................58 .

XII. OF SERVICE.....................................58 CERTIFICATE OF CERTIFICATE SERVICE ................................... ..58

XIII. CERTIFICATE OF CERTIFICATE COMPLIANCE .......................... ..58 OF COMPLIANCE............................58 XIV. XIV. APPENDIX ................................................................. ..60 APPENDIX...................................................................60

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene Page 4 of 60

OF AUTHORITIES

INDEX OF

III. INDEX AUTHORITIES FEDERAL CASES: FEDERAL CASES:

Giglio v. United States, v. United States, 405 405 U.S.US. 150,150, 154, 154, 92 S.Ct S. Ct 763,

763,

766, 31 L.Ed2d 766, L.Ed2d 104 (1972)(I972)

154 ..................................................................................... ..I5, 26, Giglio at 154.......................................................................................15, 28 26, 28

United States v. United v. Agurs, 427 U.S.

Agurs, 427 US. 97, I12, 96 97, 112, 96 S. Ct.2329, S.Ct.2329,

2401, 49 L.Ed2d 2401, (I976) ............................................................. ..I5, 16, L.Ed2d 342 (1976)...............................................................15, 16, 17

Weatherford v. Weatherford v. Bursey, Bursey, 429 US. 545,

429 U.S. 545, 97 97 S.Ct 83 7, S. Ct 837,

51 L.Ed2d 30 (1977)...........................................................................16 L.Ed2d 30 (197fl ......................................................................... ..16

v. MaQland,373 Brady v. US. 83, Maryland,373 U.S. 83, 83 S.Ct. 1194, S. Ct. 1194,

10L.Ed2a'215 (1963) ....................................................................... ..I6 10 L.Ed2d 215 (1963).........................................................................16

United States v. United v. Bagley,473 US. 667, Bagley,473 U.S. 667,

I05 S.Ct.3375, 105 87L.Ed2a’481(I985)

S.Ct.3375, 87 L.Ed2d 481 (1985)................................................16, 17,30 .............................................. ..16, 17, 30

Kyles v. Whitley 514 v. Whitley, US. 419, 514 U.S. S.Ct.1555, 419, 115 S.Ct.1555,

I31L.Ed2d 490 131L.Ed2d 490 (1995)........................................................................17, (1995) ...................................................................... ..1 7, 18, 26 I8, 26

Higgs, 713 F.2d Higgs, 713 42 ....................................................................... ..26 F.2d at 42.........................................................................26

Alcortav v. Texas, 355 U.S.

v. Texas, US. 28, 28, 31, 31, 78 78 S.

S. Ct. 103, 105,

Ct. 103, I05,

2L.Ed2d 9 (1957)................................................................................28 2L.Ed2d (1957) .............................................................................. ..28

United States v. United Gengler, 574, v. Gengler, 574, F. 2d. 730, F. 2d. 730, 735735

(3d Cir. 1978) .................................................................................. ..28 Cir. 1978).....................................................................................28

South Dakota Dakota v. Ogggerman, 428 v. Oppperman, US. 364, 428 U.S. 364, 96 96SS Ct. 3092, Ct. 3092,

49L.E.2dI000 49 (I976) ...................................................................... ..40,41, L.E.2d 1000 (1976)........................................................................40, 51 41, 51

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene Page 5 of 60

Cady v. Cady v. Dombrowslgy, US. 433, 413, U.S.

Dombrowsky, 413, 433, 93 S.Ct. 2523, S. Ct. 2523,

37L.Ed.2d 37 706 (1973)..........................................................................41 L.Ed.2d 706 (1973) ........................................................................ ..41

V. New

Coolidge v. New Hamgshire, US. 433, Hampshire, 403 U.S. 433, 461, 461,

91 S.Ct.

S.Ct. 2022,2035, 29 L.Ed.2d 564 2022,2035, 29 564 (1971)........................................41 (1971) ...................................... ..41

Brendlin v. California, 551 v. California, US. 249, 551 U.S. 249, 127I27S.Ct. 2400, S.Ct. 2400,

132 (2007).......................................................................49 168 L.Ed.2d 132 (2007) ..................................................................... ..49

v. Hodari

California v. Hodari, 499 US. 621,111, 499 U.S. 621,111, S.Ct S. Ct 1547, 1547,

113 L.Ed.2d 690 (1991).......................................................................49 (1991) ..................................................................... ..49

New York v. New York v. Belton US. 454, 452, U.S.

Belton, 452, 2860, 454, 101 S.Ct 2860,

69 L.Ed. (1981) ........................................................................... ..50 L.Ed. 728 (1981).............................................................................50

Arizona v. Gant, 556 v. Gant, 556 U.S.

US. 332,332, 129 S.Ct. 1710, S.Ct. 1710,

Ld.2d 47 A.L.R.

485, 47 Ld.2d 485, Fea'.2a’

A.L.R. Fed.2d 657 657 (2009)

Gant at 1723........................................................................................50 Gant I 723 ...................................................................................... ..50

STATE CASES: STATE CASES:

Thomas v. Thomas v. State, 841 S.W. 2.d State, 841 SW

2d 399,

399, 404 404 (Texas Crim. Crim. App.App. 1992)

841, S.W2dat ana'84I, and S.W.2d at 403........................................................................26, 30 403 ...................................................................... ..26, 30

Garza v. v. State, 137 S.

State 137 W301 878,

S. W.3d (Tex./lpp.-Houston 878, 882 (Tex.App.-Houston st [1‘” [1 Dist.

Dist.]] 2004, pet. Ref 2004, pet. Ref’d)..................................................................40 ’d) ................................................................ ..40

Collins v. S. W.2d 890 State 630 S.W.2d v. State, 890 (Tex.App. I982 pet.

(Tex.App. 1982 ref’d) ............ ..41, 54 pet. ref’d)..............41,

Sandal v.

v. State, State, 253 S. W261 283 (Tex.Cr.App.1952)..........................41, 253 S.W.2d (Tex. Cr.App.1952) ........................ ..4I, 54

Broughton Broughton v.

v. State,

State, 643 S. W.2d 147

S. W.2d 147 (Tex.App. 1982 no.

(Tex.App. 1982 pet.)..........41, no. pet.) ........ ..4I, 54

Gauldin v. State 649 S.

v. State, W.2d 411 (Tex.Cr.App.

S. W.2d 1984) .................... ..42, 54 (Tex.Cr.App. 1984)......................42,

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene Page 6 of 60

Pearson v.

v. State, State, 649 S. W.2d 786

S. W.2d 786

(Tex.Cr.App. 1983, pet. (Tex. Cr./lpp. 1983, ref’d) ........................................................... ..42, 54 pet. ref’d).............................................................42,

Evers v. S.W.2d 46 State 576 S.W.2d v. State, 46 (Tex.Cr.App. 1978)...........................42, 1978) ......................... ..42, 52, 52, 54,

54, 55

Benevides v. 600 S.

State 600 v. State, S. W.2d 809 (Tex.Cr.App.

W.2a’ 809 (Tex. Cr.App. 1980)..................42, I980) ................ ..42, 52, 52, 54

Christian v. 592 S.

State 592 v. State, W.2d 359 S. W.2d 359 (Tex.Cr.App.

(Tex. Cr.App. 1980)...................42, I980) ................. ..42, 52

Daniels v. S. W.2d 809 State 600 S.W.2d

12. State, 809 (Tex.Cr.App.

(Tex. Cr.App. 1980).......................42 I980) ..................... ..42

Eugene Redmond Jonathan Eugene Redmond v. 05-09-01461-CR)

v. State, (No. 05-09-01461-CR)

2011) .................................................................. ..43 (Tex.App. -— Dallas 2011)....................................................................43

Maybergg Mayberry v. 830 S.

State 830 v. State, W.2d 176, S. W.2d 176, 180I80

(Tex.App. - Dallas 1992, 1992, pet.

(Tex.App. — ref ’d) ................................................. ..43 pet. ref’d)...................................................43

Tex.R.APP.Ann 81(b)(2). Pamp. Tex.R.APP.Ann Pamp. 1989..............................................44 1989 ............................................ ..44

Gauldin v. State 683 S.

v. State, W.2d at 415.................................................44 S. W.2d 415 ............................................... ..44

Fenton v.

v. State, 785 S.

State, 785 W.2a’ 443 (Tex.App.-

S. W.2d (Tex.App.— Austin 1990)...............44, 1990) ............. ..44, 52

Russell v. 7I7S.

State 717 v. State, W261 7, S. W.2d 7, 9, I986) .................... ..49 9, (Tex.Cr.App 1986)......................49

Telshow v.

V. State, 964 S.

State 964 W.2a’ 303, S. W.2d 307

303, 307

(Tex.App.- Houston [I4"’

th

Houston [14 Dist.] 1998[998 no pet.)

pet.)..................................49 ................................ ..49

White v. White 871 S.

State 871 V. State, W.2d 833, S. W.2d 836-37

833, 836-37

(Tex.App. - Houston th

(Tex.App. - [14"’ Dist.] 1994, Houston [14 1994, no pet.)

pet.)...............................49 ............................. ..49

Higlzwarden Highwarden v. v. State, State, 864 S. W.2d 479, 864 S.W.2d 479, 481 && n.

n.

(Tex.App. -- Houston [I4’h Dist.] 1993) dism ’s as th

(Tex.App. Houston [14 I993) pet.

pet. dism’s

irnprovidently granted, improvidently granted, 871 W.2d 726 (Tex.Cr.App.

871 S. W.2d (Tex.Cr.App. 1994).........49 1994) ....... ..49

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene Page 7 of 60

Nottingham v.

v. State, 908 S.

State, 908 W.2d 585

S. W.2d

1995) ....................................................................... ..49 (Tex.App.- Austin 1995).........................................................................49

Medford Medford v.

v. State, State, 13 S. W.2d 769

S. W.2d 769 (Tex.Cr.App. 2000) ........................ ..49 (Tex. Cr.App. 2000)..........................49

Granados v. Granados v. State S. W.3d 217 State, 85 S.W.3d 217 (Tex.Cr.App. 2002) ...................... ..50 (TeX.Cr.App. 2002)........................50

Gill v. State 625 S.

v. State, W.2d 307, S. W.2d 319 (Tex.Cr.App.

307, 319 (Tex. Cr.App. 1980)........................51 1980) ...................... ..5I

Delgado Delgado v.

v. State, 718 S.

State, 718 W.2d 718,

S. W.2d 721 (Tex.Cr.App.

718, 721 1986) .............. ..5I (Tex.Cr.App. 1986)................51

Backer Backer v. 656 S.

State 656 v. State, W.2d 463 (Tex.Cr.App.

S. W.2d (Tex. Cr.App. 1983)...........................52 1983) ......................... ..52

Mayhood Mayhood v.

v. State, 699 S.

State, 699 W.2d 873,

S. W.2d 874

873, 874

(Tex.App. 1984 pet. (Tex.App. 1984 pet. Ref’d)

Ref’d)......................................................................54 .................................................................... ..54

State v.

V. Giles, 867 S.

Giles 867 W.2d 105, S. W.2d I08

105, 108

(Tex.App. - El Paso, (Tex.App. - Paso, pet, ref’d) ............................................................. ..55 pet, ref’d)...............................................................55

Statutes

1 4”’ Amendment United States Constitution...............................13, 26 th 14 of the United Amendment of Constitution ............................. ..13, 26

44"’Amendmentofthe th UnitedStates

Amendment of the United Constitution ............................... ..13, 36, States Constitution.................................13, 39,40, 41 36, 39,40,

Texas Transportation Code Code 544.010 Subparagraph Subparagraph ((c) c)

............................................................................13, .......................................................................... ..13, 19, 19, 20, 25,26, 32,33,

20, 25,26, 32,33, 34,

34, 35

9 ....................... ..13, 19, Texas Constitution Article 1 Section 9.........................13, 19, 25, 25, 36,

36, 39,

39, 48,

48, 55,56

Code of Code Criminal Procedure Article 39.14..........................................17 ofCriminal 39.14 ........................................ ..17

Code of Code Criminal Procedure Article 2.01...........................................17 ofCriminal 2.01 ......................................... ..17

ofEvidence

Texas Rules of 803 (6).........................................................18 Evidence 803 (6) ....................................................... ..18

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene Page 8 of 60

0fEvidence

Texas Rules of Evidence 902 (10).........................................................18 (1 0) ....................................................... ..I8

Texas Rules of Civil Procedure 0fCivil 21a ................................................... ..18 Procedure 21a.....................................................18

Leg. H Leg. H. Stat.

Stat. 1995 74'”

74 th

Leg. Leg. Sess.

Sess. Chapter 165, 165, effective September 1, I995 ................................................................ ..20, 35 I 1995..................................................................20, ,

Code of Texas Code Criminal Procedure 38.23 ((a)

0fCriminaZ a )...................................38, ................................. ..38, 39, 39, 48

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene Page 9 of 60

Case No. 12-13-00298 Case CR

12-13-00298 CR

THE IN THE IN

COURT OF COURT OF APPEALS

APPEALS

TWELFTH SUPREME TWELFTH SUPREME JUDICIAL

JUDICIAL DISTRICT

DISTRICT

TEXAS

TYLER, TEXAS TYLER,

****************************************************************** ******************************************************************

ROBERT EUGENE ROBERT EUGENE PRITCHETT

PRITCHETT

Appellant

V.

THE STATE THE OF TEXAS

STATE OF TEXAS

Appellee

****************************************************************** ******************************************************************

On Appeal On From the 273

Appeal From 273"‘

rd

Judicial District

~.w:s:~.w.-*9:9:4:9:*9:9:9:9:9:*9:*:':9:*9:9:*9:9:*9:9::':9:9::':9:9: ************************************

TO THE TO HONORABLE JUDGES THE HONORABLE JUDGES OF OF SAID COURT:

SAID COURT:

Comes now Robert Eugene Comes now Eugene Pritchett, Defendant in a proceeding in the 273 273'“

rd

of San Augustine County, Texas and desiring to prosecute an Judicial District Court of

appeal from his conviction in that proceeding, respectfully submits this brief in appeal

of Eugene Pritchett will be by of same. For clarity, reference in this brief to Robert Eugene by

“Appellant” and reference to the State of Texas will be by “Appellant” “Appellee” unless the by “Appellee”

context or consideration of style dictate otherwise.

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 10 of

Page 10

STATEMENT OF

IV. STATEMENT THE CASE OF THE CASE

On the 44”‘th day of August , 2014 On , 2014 a Motion To Suppress (Evidence Obtained Motion To

From Illegal Detention and Illegal Impoundment From Impoundment and Inventory) was was filed

filed with the

Court by by Appellant’s attorney. See Appendix “A”.

Appendix “A”.

On the 44‘“th day of August, 2014, before presiding judge Hon. Charles Mitchell On

273“rd District Court of San Augustine County, Texas, San Augustine, presiding in the 273

commenced on the

was selected and sworn and empaneled and a trial commenced Texas, a jury was

of the felony prosecutor’

merits of Eugene Pritchett, prosecutor’ss case against the Defendant, Robert Eugene

who and being accused of committing two who two felony offenses of of and pertaining to

Zone and Tampering

Possession of a Controlled Substance in a School Zone Tampering with

Evidence. Evidence.

On the 55”‘th day of August, 2014, the case went On went to jury deliberation and the jury

which and finding

eventually returned verdicts in which finding Defendant guilty of of Possession

of finding Defendant Not of a Controlled Substance and finding Tampering with of Tampering

Not Guilty of

Evidence. Evidence.

On September 10, On 10, 2014, the Defendant and counsel appeared at the punishment punishment

phase of the trial and the court assessed punishment consisting of Defendant being

five years and Defendant ordered community supervision for a period of five placed on community

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 11 of

Page 11

to pay amount of pay a fine in the amount of $3,000.00 and Defendant ordered to pay pay a restitution

amount of $140.00. amount “B” “Judgement Appendix “B”

$140.00. See Appendix “Judgement of By Court”.

of Conviction By

of the punishment hearing counsel for Defendant Immediately after the conclusion of

filed the Trial Court’s Certification of Defendant’s Right of Appeal. filed Appendix Appeal. See Appendix

“C”. “C”.

On October 7, 2014, counsel for Defendant filed Defendant’s Written Notice On

of Appeal. of Appeal. See Appendix “D”. This case is proper before this Honorable Court.

Appendix “D”.

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 12 of

Page 12

PRESENTED FOR

ISSUES PRESENTED V. ISSUES REVIEW FOR REVIEW

POINT OF POINT ERROR 1.

OF ERROR The State has a constitutional duty The under the due dutv under due process clause or the Amendment to disclose any Fourteenth Amendment anv material evidence that is favorable to defense.

POINT OF POINT ERROR 2.

OF ERROR was denied due

Appellant was due process of law when the State agents, The law when The City Citv

Department destroyed and

San Augustine, Texas, Police Department of San and or failed to Exculpatorv evidence of a video/ preserve Material Exculpatory Video/ audio recording of the Impoundment and

Alleged Traffic Violation, Detention, Impoundment and Inventory Inventorv search

form the basis of the conviction.

of the Appellant that form

POINT OF POINT ERROR 3.

OF ERROR The trial court abused The abused its discretion sustaining prosecution’s prosecution’s objection

obiection to

motion to read

defense motion read into the record the relevant section of the Code for the jury’s

Transportation Code understanding as it applies to motorist iurv’s understanding

stopping at intersections.

POINT OF POINT ERROR 4.

OF ERROR were violated under

Appellant’s Constitutional Rights were under the Fourth Fourth

Amendment of the United States Constitution and Amendment and Article I, 1, Section 9 of

when the reasonable alternatives that were Texas Constitution when

the Texas were impoundment were

available to impoundment were not implemented.

implemented.

POINT OF POINT ERROR 5.

OF ERROR The inventory The was an inventorv search of Appellant’s vehicle was an illegal unconstitutional Violation of Article 1, Section 9 of the investigative search for evidence in violation Texas Constitution. Texas

Appel1ant’s Brief Appellant’s Robefi Eugene Robert Eugene Pritchett of 60 13 of

Page 13

ARGUMENT AND

VI. ARGUMENT AND AUTHORITIES AUTHORITIES

POINT OF POINT ERROR NO.

OF ERROR NO. 1

The State has a constitutional duty under The under the due due process clause or the Amendment to disclose any Fourteenth Amendment any material evidence that is favorable to defense.

STATEMENT OF

VII. STATEMENT OF FACTS

FACTS

The foregoing statements of The of facts are incorporated herein by by references for all

purposes. subpoena. purposes. Facts regarding non-response to defense counsel’s subpoena.

On July 8, 2014, defense counsel submitted a subpoena to the San Augustine On

copy of the established written specifically requesting an authentic copy Police Department specifically

impoundment procedure and production policy governing the department’s rules of impoundment

of film of of authentic copies of the audio/visual film of the officer’s off1cer’s pursuit prior to and during

(RR: Vol. 3, P. 75)

Appellant’s detention. (RR:

SUMMARY OF

VIII. SUMMARY ARGUMENT OF ARGUMENT

Under established Texas law, the failure to turn over material, exculpatory Under

evidence is a violation of due process, regardless of whether the State acted in bad

who arrested Appellant, testified that he thought the officer who

faith. In this case, the officer

police department had an established policy governing impoundment; but he was was

him in court. The

copy with him

unsure because he did not have a copy The officer officer further testified

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 14 of

Page 14

was activated and recording to having a video camera in his patrol unit that was

Appellant’s vehicle as the officer officer pursued/followed the Appellant. The officer The officer

testified that he stopped Appellant for not stopping at a designated point at a stop sign

officer testified

at an intersection, and the officer testified that Appellant had also improperly stopped

in the middle of the intersection.

intersection. Appellant argued in defense of officer’s reason for

the stop based upon upon the traffic code, and Appellant argued in defense of the video the

was lost pursuant to a computer crash. The officer maintained existed but was The video

was material, exculpatory evidence of the following/pursuit of Appellant was recording of

was a violation of Appellant’s due process rights.

and the failure to preserve it was

ARGUMENT

IX. ARGUMENT

Exculpatory evidence includes material that goes to the heart of the defendant’s

which might well alter the jury’s guilt or innocense as well as that, which jury’s judgement of the judgement of

credibility of a crucial prosecution witness. Giglio v. United States, v. United 150, States, 405 U.S. 150,

L.Ed2d 104 31 L.Ed2d

154, 92 S.Ct 763, 766, 31 154, 104 (1972). Evidence impeaching the testimony

when the credibility of the witness may of a government witness is exculpatory when of may be

determinative of criminal defendant’s guilt or innocence. Qglg at 154.

innocence. Giglio 154. If If the

doubt” as to the defendant’s culpability, exculpatory evidence “creates a reasonable doubt”

United States v.

it will be held to be material. United v. Agurs, 427 U.S. 97, 112, Agurs, 427 112, 96 S.Ct.2329,

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 15 of

Page 15

2401, 49 L.Ed.2d 342 (1976).

San

In this case, defense counsel submitted a subpoena to the custodian of San

thirty-five days before the trial held on Augustine Police Department on July 8, 2014, thirty-five

At trial, Officer

August 4, 2014. At Officer Brazeal testified was in charge of testified that he was of

which included handling subpoenas received at the department.

administrative duties which department.

The officer admitted that he received a subpoena requesting the department’s The

impoundment policy and other production. The impoundment was told The officer further stated that he was

by the district attorney’s office not to release information. (RR: by (RR: Vol. 3, P. 75, 76, 77,

1-25, 1-8).

L. 8-25, 1-25, The district attorney’s rebuttal closing alluded to the code of 1-8). The of

was not in

criminal procedure regulating discovery claiming defense’s subpoena was

no consequence.

conformance therewith and therefore, seemingly, of no consequence. (RR: Vol. 3,

109,110, P. 109, 11-25,1-13).

110, L. 11-25, 1-13).

Weathertord v.

There is no general right to discovery in criminal cases. Weatherford v.

429 U.S. 545, 97 S.Ct 837, 51 Bursey, 429 l3u_11ve_y, L.Ed2d 30 (1977). However, the State has a 51 L.Ed2d

Due Process Clause of the United States Constitution constitutional duty under the Due

any material evidence that is favorable to the defense for to disclose to defendant any

trial or a sentencing hearing. Brady v. Magyland Brady v. 10 Maryland, 373 U.S.83, 83 S.Ct .1194, 10

United States v.

L.Ed.2d 215 (1963); United v. Agurs, 427 U.S. 97, 96 S.Ct.2329, 49 L.Ed.2d Agurs, 427

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 16 of

Page 16

v. Bagley

342 (1976); United States v. 105 S.Ct.3375, 87 L.Ed.2d Bagley, 473 U.S. 667, 105

48l(l985); Kyles v. 481(1985); 115 S.Ct. 1555, Whitley 514 U.S. 419, 115 v. Whitley, 1555, 131 490 (1995).

131 L.Ed.2d 490

makes

This standard of materiality applies regardless of whether the defense makes

specific request for certain material, a general request for discoverable material, or a specific

no request for disclosure of favorable evidence. Although the Court’s opinion in

was a plurality opinion, a majority adopted this approach in Kyles.

Bagley was Kyles.

Knowledge of Knowledge of materially favorable evidence in law enforcement files known to law files or known

officers is imputed to the prosecutor.

enforcement officers prosecutor. Therefore, a constitutional

when the prosecutor is unaware violation can occur when unaware of evidence in law enforcement

files. Id. files. Id.

The prosecutor insisted at trial that because defense didn’t follow or adhere to The

Code of Criminal Procedure Article 39.14 discovery pursuant Code specific article 39. 14 (through specific

was not entitled to release nor receipt of information not referenced in court), defense was

requested. (RR: Vol. requested. P. 109, 110, 3, P.109, ll-15,1-13).

110, L. 11-15, 1-13).

The Code of The Code of Criminal Procedure Article 2.01 2.01 refers to the duties of the district

attorney.

of all prosecuting attorneys, including any “....[I]t shall be the primary duty of

special prosecutors, not to convict, but to see that justice justice is done. They shall not

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 17 of

Page 17

of the

suppress facts or secrete witnesses capable of establishing the innocence of

accused.”

Defense’s subpoena included request for certain business records of the police

impound policy was

department and request for information particularly pertaining to impound was

Tex.R.Evid. 803(6) without a requested and intended to be introduced at trial under Tex.R.Evid.

sponsoring trial witness through the use of an affidavit as provided for in the

would have been given to prosecution Tex.R.Evid.902( 1 0), and notice of introduction would Tex.R.Evid.902(10),

pursuant to Rule 21a Tex.R.Civ.Pro. At least 14 Tex.R.Civ.Pro. At commencement of 14 days prior to the commencement

“Knowledge of materially favorable evidence in law enforcement files the trial. “Knowledge files or

known to law enforcement officers is imputed to the prosecutor.” Kyles, known Kyles, Supra.

Defense counsel’s subpoena sought to legally discover business records

may have been pertinent and material to defense; and admit such information that may

evidence under the Texas Rules of Evidence pursuant to the Texas Rules of Civil

The decision to deny defense’s subpoena in behalf of Procedure in a criminal trial. The

was a violation of Appellant’s the accused was Appe11ant’s due process rights.

POINT OF POINT ERROR NO.

OF ERROR NO. 2

was denied due

Appellant was due process of law when the State through law when San through its agents, San

Department destroyed and

Augustine Police Department Augustine and or failed to preserve Material Exculpatorv evidence of a video/ audio recording of the Alleged Traffic Exculpatory Traffic Impoundment and

Violation, Detention, Impoundment and Inventory search of the Appellant that

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 18 of

Page 18

form the basis of the conviction. form

STATEMENT OF

VII. STATEMENT OF FACTS

FACTS

The night of The November 24 of Thanksgiving November th 24”‘, , 2011, around 8:52 pm, pm, in the City

of San Augustine, Texas. of Texas. Office Sowell testified that his digital video, recorded the

following of the Appellant’s vehicle through a residential neighborhood for over a

half a mile. Officer Sowell alleged the Appellant stopped improperly at the half

of Hospital Street and North intersection of Milam Street, that lead to the detention and North Milam

arrest of the Appellant for failure to display driver licence and subsequent

impoundment and inventory search of Appellant’s vehicle. impoundment

made an objection on the admissibility of the evidence.

Appellant’s Attorney made

The roadside detention was The Code 544.010, was in violation of the Transportation Code 544010,

Subparagraph (( c );

); and it

it violated Article 1, of the Texas Constitution.

1, Section 9 of

The Court: The

Therefore, the evidence the State is trying to offer is inadmissible. The The

was overruled. (RR: Vol. 2, Page 32, Lines 4-13).

objection was

The Appellant argues that the arresting Officer had no probable cause or The

reasonable suspicion to stop the Appellant. Appellant argues he stopped properly at

The Appellant stopped properly the intersection of the alleged traffic violation. The

Code 544.010 -- Stop

The Texas Transportation Code, relevant section of Code according to The

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 19 of

Page 19

An operator required to stop by Signs and Yield Signs -- Subparagraph (( c )) An by this

section shall stop before entering a crosswalk on the near side of the intersection.

intersection. In

marked line. In the

of a crosswalk, the operator shall stop at a clearly marked the absence of

of a stop line, the operator shall stop at the place nearest the intersecting absence of

roadway where the operator has a view roadway where on the intersecting View of approaching traffic on

roadway.” Leg. H. Stat. 1995 74”‘ 1995 74 th

Leg. Sess. Ch. 165,

165, effective September 1, 1995.

1, 1995.

Officer Sowell’s testimony, Officer In Officer Officer declined to answer important questions

Officer Sowell’s reference to the vital to the defense, without referring the video. Officer

on cross examination, without the video, video and his inability to answer questions on

shows the video contained exculpatory evidence which shows was vital to the defense, which was

which violated Appellant’s due process and a right to a fair trial. which

The foregoing statement of fact are based on The on trial court testimony of the San San

Officers.

Augustine Police Department, Police Officers.

The State’s Attorney in direct examination of Officer The Officer Jonathon Sowell.

Sowell.

Do you Q. Do Q. remember what you remember was wearing that night?

what Mr. Pritchett was

would have to review video. It’s been nearly three years and -- -—

A. No, Sir. I would

Q. All right.

RR: Vol. 2 p.44, L. 17-22 States Attorney: II pass the witness. (( RR: 17-22 ).

).

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 20 of

Appel1ant’s Attorney begins cross examination of Appellant’s Officer Sowell.

of Officer Sowell. (RR: Vol.

2, P. 45).

Q. Okay. Now, Q. him on the hunch, did you you were following him

Now, while you you have a video

going‘? going?

was going.

Video was

A. Yes, sir, video

you have a video Q. So you we could see regarding your following him?

Video that we him?

O.>@.>

A. No, sir, sir, I I do not.

You didn’t have a video of the following?

Q. So I guess the answer is: You

Our computer hard drive crashed at the police department and lost was going. Our A. It was

(RR: Vol. 2, P. 73, L. 6-17)

Video. (RR:

the video.

Appendix No.

Officer Sowell looking at defense Exhibits 3, 4 and 5. Appendix “E”.

No. “E”.

would be a line, and that is your designated stop point, the white line.

A. -- -- There would

I’m my video I’m unsure without my Video if was actually present at that night.( RR:

if that line was RR: Vol.

22-24).

2 p.75, L. 22-24 ).

show you.

was a video I could show

A. -- -- II wish there was

we don’t have a video, Q. But we we?

Video, do we?

And I’m A. And I’m sorry about that. But But -- -- ((RR:

RR: Vol. 2 p.77, L. 3-10 ).

).

Q. At Q. when he said he didn’t have his driver’s license -- --

At the time when

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 21 of

Page 21

l’m not sure about the time frame on A. I’m would have to have the video or it on that. II would it

would my report. But would have to be stated in my RR: Vol. 2 p.80, L. 11-15 But -- -- (( RR: 11-15 ).

).

we can’t show Q. But we Q. members of the jury where show members where you you claim he stopped, can you?

A. Not Video, no, sir. ((RR:

Not without the video, 13-15 ).

RR: Vol. 2 p.82, L. 13-15 ).

At that point in time, you Q. At him if you you ask him you can search his vehicle. It’s not in your

report. report. l’m asking you I’m you -- --

Then II can’t -- -- without a video A. Then l’m not going to testify to that question. Because Video I’m

l’m unsure, sir. Like you I’m RR: Vol. 2 p.84, you said, that’s been nearly three years ago. (( RR:

15-20 ). L. 15-20 ).

The audio portion contained in the video, you The you could have heard Officer Sowell

asking Appellant to search his vehicle.

where you

Q. But being the general vicinity where Q. you pulled the vehicle Vehicle over?

A. Yes, sir -- --

Q. -- -- it was on it was on video -- --

where he was

you exactly where

A. If I had a video, II could point you RR: Vol. 2 was stopped. (( RR:

1-5).

p.90, L. 25 and p. 91, L. 1-5 ).

I’m unsure. It was A. I’m was stopped. But l’m unsure that it was But I’m was on on a curve or in the road.

would not know.

Without video II would RR: Vol. 2 p.91, L. 16-18 know. (( RR: 16-18 )) . .

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 22 of

The video would The show that the Appellant’s car was would clearly show was properly parked

would also

The video would

along this portion of Hospital Street, the place of detention. The

show that this portion of Hospital Street is straight.

clearly show

States Attorney redirects examination of Officer Sowell.

comment about the video crashed the video not being available?

Been a lot of comment Q. Been

A. Yes. Sir.

The video not being available, being destroyed, being lost, being cyberspace, Q. The

being wherever it away from it goes then they crash, that does not take anything away from the

what you

truth or veracity of what you put in your report?

A. No, Sir.

IIhave have no further questions. `( RR: Vol. 2 p.l ‘( RR: p.112,

12, L. 25- p. 113, 1-8 ))..

ll3, L. 1-8

Appellant’s Attorney begins re-cross examination of Officer Sowell.

where it

Q. There is no video of where it is alleged he parked wrongfully in an intersection.

True or not true?

true‘?

(RR: Vol. 2, P. 114,

A. True, there is no video. (RR: 114, L. 7-9)

The State called Officer James Blackwell as there next witness. The

ofOff1cer

Appellant’s Attorney begins cross examination of Officer Blackwell on the

video issues.

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 23 of

We have here is so-called crime scene, and it’s not normal to take what we

Q. Okay. So what

pictures?

would be a video from the patrol car recording the entire A. Well, there generally would

scene, documenting everything real time. (RR: Vol. 3, P. 43, L. 9-13)

Do you have any idea whether Officer Sowell logged the videotape on Q. Okay. Do on his

patrol car into evidence?

A. No, sir, I was sir, because I was on an antique system. II was VHS, so II had to was using VHS,

manually take the tape out and submit it was digital, and I have no it as evidence. His was

what he did with it.

idea what 1-3)

it. (RR: Vol. 3, P. 53, L. 23-25, P. 54, L. 1-3)

The State’s Attorney then calls his next Witness, Sargent Shannon The Shannon Brazeal.

no question concerning the destroyed video.

had no

States Attorney had

Appellant’s Attorney begins cross examination of Sargent Braziel.

Back in 2011 Q. Okay. Back 2011 did y’all use videotape or digital?

We had a mixture of both. We A. We We had one vehicle that ran -- -- still had the old system VHS tape. Everything else was had VHS that had was saved digitally to a card.

Do you Q. Okay. Do know What you know Officer Sowell’s video?

what happened to Officer

We had a computer crash, unrecoverable. A. We We tried to recover what unrecoverable. We we could not what we

(RR: Vol. 3, P. 74, L. 13-22)

get that back that far. (RR: 13-22)

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 24 of

SUMMARY OF

VIII. SUMMARY ARGUMENT OF ARGUMENT

Under the U.S. Constitution, a criminal defendant will have a meaningful Under

Consequentially, the destruction or failure opportunity to present a complete defense. Consequentially,

of due process regardless of whether to preserve exculpatory evidence is a violation of

or not it it is done in bad The State never developed or proved that the San bad faith. The

Augustine Police Department even has a written Standard Policy to preserve a video.

The totality of The of the circumstances in this case establish bad faith on behalf of the San

which

Augustine Police Department to either destroy or fail to preserve the video, which

The Video/Audio recording of the self-defense. The

could establish Appellant’s right to self-defense.

traffic stop, Detention and the Inventory Search contained exculpatory Alleged traffic

evidence and the failure to preserve it was done in bad it was bad faith, violating Appellant’s

due process right.

ARGUMENT

IX. ARGUMENT

made an objection on the admissibility of Appellant’s Attorney made of the evidence:

The roadside detention was The Code was in violation of the Texas Transportation Code

544.010, Subparagraph (( c );

); and it

it violated Article 1, of the Texas 1, Section 9 of

Constitution. Therefore, that evidence trying to offer is inadmissible. Constitution. (RR Vol. 2, P.

inadmissible. (RR

32, L. 5-8)

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 25 of

Court: Objection overruled.

The Appellant argues that he stopped properly at the intersection of the alleged The

The Appellant stopped properly according to Section 544.010 violation. The traffic violation.

of the Texas Transportation Code.

subparagraph (( c )) of

of the defendant’s

Exculpatory evidence includes material that goes to the heart of

which might well alter the jury’s judgement guilt or innocence as well as that, which judgement of the

of a crucial protection witness. Giglio v.

credibility of 150, 154, v. United States, 405 U.S. 150, 154,

104 (1972) Higgs, 713 F.2d at 42.

31 L.Ed.2d 104

92 S.Ct. 763,766, 31

Amendment is violated when Due Process Clause of the Fourteenth Amendment The Due The when a

which creates a

prosecutor fails to disclose evidence that is favorable to the accused which

sufficient to undermine confidence in the probability sufficient outcome of the proceedings.

outcome proceedings.

Thomas V.

See, e.g., Thomas SW2d 399, 404 841 S.W.2d

V. State, 841 404 (Tex. Crim. App. 1992).

1992).

The member of The duty to disclose extends to evidence in the possession of any member of

team”. See , e.g. Kyles V.

the “prosecution team”. , V. Whitley, 115 S. Ct.

Whitley, 514 U. S. 419, 437, 115

1555, 1567, 1555, 1567, 131 2d 490 131 L. Ed. 2d 490 (1995). (“the individual prosecutor has a duty to learn

known to the others acting on of any favorable evidence known of on the government’s behalf in

the case, including the police”).

police”).

The Appellant’s Attorney received a letter via fax Dated July 31, 2014, four The

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 26 of

The letter stated, In preparing the above cases for of the trial. The

days before the start of

this trial it has come my attention that there was come to my made on was a video made on the night of of the

My office has never received this video and in following up with the police stop. My

was stored on a computer at the police department have found out that the video was

no longer available.

department and the computer crashed and the video is no

about the video.

Trial testimony about

On August On August 4, 2014, during trial, the arresting Officer Officer Sowell testified on

prosecution direct examination. No, sir. I would Then on would have to review video. Then on

cross examination it was developed that the arresting Officer Sowell had a video it was

recording of the incident, starting from the following of Appellant’s vehicle thru the

impound and inventory search. Then, seven more traffic violation, detection, impound alleged traffic more

examination, the arresting Officer’s answers were, “I questions on cross examination, am unsure “I am

my video. II wish there was without my would have to have the video. Not was a video. II would Not

Then I can’t without a video. If with out the video, No, sir. Then If I had a video, I could.

With out a video II would With know.”

would not know.”

know what

During cross examination of Office Blackwell stated, he did not know what

He also stated on cross examination, Officer Sowell did with the video. He examination, Well, there

would be a video from the Patrol unit car recording the entire scene, generally would

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 27 of documenting everything.

The who is employed by The Appellant who San Augustine, by a defense Attorney in San

“Bad Faith”. The

argues that the State and San Augustine Police Department acted in “Bad The

downloaded

prosecutor stated digital’s don’t get logged into evidence. It just gets downloaded

mainframe. Prosecutor stated, But, you onto the mainframe. you know, things happen. Computers happen. Computers

crash. II tried a case where the whole dadgum case file whole dadgum was lost by file was by the police

department. (RR: Vol. 3, P. 111, department. 111, L. 5-13)

knows that computers crash and case files Appellant argues, if the state knows files have

been lost by by the Police Department and video is documenting everything real time.

Failure to preserve the video violated Appellant’s due process and right to a fair trial.

~ A prosecutor has a duty not knowingly to proffer perjured testimony and to A

may become

which he may

correct any perjury of which become aware during trial. See e.g., eg., Alcortav

v. Texas 355 U. S. 28, 31, 78 S. Ct. 103, v. Texas, 103,105, 2L.Ed2d 9 (1957).

105, 2L.Ed2d

Evidence impeaching the testimony of a government witness is exculpatory

when maybe determinative of when the credibility of the witness maybe of a criminal defendant’s

guilt or innocence. Giglio, U.S at 154, Qiglg, 405 U.S United States v.

154, 92 S.Ct. at 766; United v. Gengler,

574 F. 2d.730,735 (3d Cir.1978). 574 Cir.l978).

In prosecutor direct examination of Officer Blackwell the prosecutor handed

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 28 of

own police report. The

of his own

copy of

Officer Blackwell a copy Some of The prosecutor states, Some

my highlighting; but other than that it’s a good the pink, that’s my good copy. (RR:

(RR: Vol. 3, P.

10, 10, L. 1-2). At that time II think you 1-2). Q. At you testified testified that y’all began searching the vehicle

first as an inventory search; is that correct?

of that, I just

A. Actually, before any of just stood there in the open door of the vehicle and

noticed the white streaks on the door panel.

Q: In Plain view? Q:

A. Right, in plain view.

show’s that he knowingly and willfully, with Officer Blackwell’s police report show’s Officer

deceitful malicious intent, along with the prosecution mislead the jury jury on the

by Officer Blackwell’s testimony, he states he found the sequence and the order, by

view doctrine.

alleged evidence in the car door pocket, to justify the plain view

Report

Officer Blackwell’s Report

Officer Sowell placed Pritchett in custody on the charge “Fail to present Driver

him in the rear seat of his patrol vehicle. Officer Blackwell’s and placed him License” and

report states, II looked into the open door of the vehicle and inside the door pocket,

amount of

I observed a small amount of white substance. II touched the small fragments and

know this to be consistent with crack was firm and waxy. I know noted the substance was

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 29 of my vehicle, and tested the fragments of the field test kit from my

cocaine. I1 retrieved a field

substance in the door pocket. The substance tested positive for cocaine.

pocket. The cocaine. I advised

was going to be charged with Officer Sowell, and II advised Pritchett that he was Officer

of

of a controlled substance in a drug free zone. II collected the remaining of Possession of

the fragments of cocaine from the door pocket with officer Sowell watching, and

them in an evidence bag, and immediate handed placed them handed the bag to Officer Officer Sowell.

was a number There was And II tested several number of fragments in the area of the door pocket. And

smears on the door panel which small white smears which gave positive indication of the presence

of cocaine. of was attempting to destroy the rock of crack cocaine. It appeared that Pritchett was

cocaine to prevent it by officers.

it from being discovered by officers. II advised Pritchett of his

Miranda me that he wished to speak to an attorney. Miranda warnings, and he told me attorney.

The Appellant argues that the video/audio contains “Favorable evidence” The

includes both ““ exculpatory ““ and “impeachment “impeachment evidence”. United States V.

V. Bagley,

105 S. Ct. At

473 U.S. at 676, 105 Thomas v.

At 3380; Thomas 2d at 403. Officer 841 S.W. 2d

v. State, 841

Sowell’s wilfulness, on eight questions on cross examination, declined to answer the

questions without seeing his video. Officer Blackwell’s testimony was was in direct

own police report.

conflict with his own conflict

Moreover, the testimony from the arresting Officer Sowell and the back-up

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 30 of

Officer Blackwell was own report’s of the officers own

was inconsistent with the police officers

would have been impeached by which would

alleged events which was by the video. Appellant was

by the absence of the video.

significantly prejudiced by significantly

The itself was The San Augustine Police Department itself of maintaining and was in charge of

preserving the video and it was their failure to do so that denied Appellant a complete it was

on the totality of the circumstances outlined in the above portion, the defense. Based on

was done in

failure of the San Augustine Police Department to preserve this video was

bad was a violation of Appellant’s bad faith and therefore, was Appel1ant’s due process right.

shown that the state through its agent the San Augustine Police Appellant has shown

Department, did act in bad bad faith and had a reason or motive not to preserve the

exculpatory evidence in the video of the incident that would show the police officers would show officers

what actually took place during the following, alleged misconduct and the truth of what

As Officer Blackwell testified traffic violation and the detention of the Appellant. As

“documenting everything real time”.

about the video, “documenting shown time”. Further, Appellant has shown

would have been very useful in that the video contained exculpatory evidence that would

the Appellant’s right to self-defense, to the jury.

jury.

was denied his due process right to adequately present a defense Appellant was

was constitutionally harmed.

and was

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 31 of

Page 31

POINT OF POINT ERROR 3.

OF ERROR The trial court abused The abused its discretion sustaining prosecution’s objection obiection to

motion to read into the record the relevant section of the Transportation defense motion Code for the jury’s Code understanding as it applies to motorists stopping at iurv’s understanding

intersections.

STATEMENT OF

VII. STATEMENT OF FACTS

FACTS

The foregoing statements of the facts are incorporated herein by The by references for

all purposes. Code 544.010 (( c )) evidence:

purposes. Facts regarding Transportation Code evidence:

A trial to a jury commenced A commenced on August August 4, 2014, during the course of of defense

who conducted Appellant’s of the police officer who counsel’s cross examination of

detention, defense counsel for the Appellant motioned the court to allow defense

“Texas Criminal and Traffic counsel to read into the record from the “Texas Law Manual”

Traffic Law Manual”

Code 544.010 (( c )) for purpose to advocate therefrom during cross Transportation Code

would have fairly informed the jury and the court the controlling law examination that would

of the transportation code as it of who stopped it applies to motorist and the police officer who

“One moment, Your

Dudinsky: “One

the Appellant. Mr. Dudinsky: Your Honor, II would would like to read into

the record the transportation code, if may, if the prosecutor has no objection.

if II may, objection. Mr.

“I’m going to object to you Dutton: “I’m Dutton: what you you reading what The you believe to be the law. The

judge can instruct the jury jury what The Court: “Let What the law is. The me see ----

“Let me you

---- are you

proposing to read?” Mr. Dudinsky: ““ This here, Section 544.010 sub-paragraph c

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 32 of

And II think the jury

governs a motorists stopping at stop signs and yield signs. And would jury would

we have to follow.” Mr. Dutton: “Your what the procedure is that we be entitled to hear what “Your

The Court: “Sustained” Mr. Dutton:

Honor, I1 object to the side-bar there.” The “Thank Dutton: “Thank

“The Court’s charge is going to contain all the instructions that the The Court: “The you”. The

jury is going to hear. When we When we have a charge conference, we up” Mr.

we will take this up”

I’m not allowed to read this to the jury?” The So I’m

Dudinsky: “All right. So Dudinsky: “No.

The Court: “No.

The Court’s charge is going to contain all the instructions as far as the law is The

“Okay.” (RR: Vol. 2, P. 77-78).

Dudinsky: “Okay.”

concerned.” Mr. Dudinsky:

summary closing arguments, a charge conference not transcribed Following summary

The presiding judge agreed to include in the initiated concerning the court’s charge. The

you have a reasonable doubt that the Defendant, Robert “if you

court’s charge, Court: “if

Eugene Pritchett, failed to properly stop at the Intersection of Hospital Street and Eugene

Milam Streets, or if you Milam Eugene Pritchett, properly you believe the Defendant, Robert Eugene

stopped at said intersection, then any evidence obtained from the search of Defendant

him.”

Eugene Pritchett’s vehicle shall be disregarded as evidence against him.”

Robert Eugene

(RR: Vol. 3, P. 84, L. 20-25, P. 85 L. 1). (RR: 1).

The court’s charge did not include the wording of paragraph (( c )) of The of

Code 544.010 on

Transportation Code on the letter of the law governing lawful motorist

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 33 of stopping procedure at stop signs located at intersections.

SUMMARY OF

VIII. SUMMARY ARGUMENT OF ARGUMENT

must be accounted that if It must Verbatim context of if the jury had been provided the verbatim

officer’s reason for

paragraph (( c )) to review for consideration and deliberation on the officer’s

jury would

stopping Appellant; the jury would have been informed concerning the letter of the

off1cer’s reason for stopping law as it applies to the circumstances, particularly the officer’s

The jury would

Appellant. The would have concluded that the officer’s officer’s basis for stopping

was unlawful.

Appellant and conducting a roadside detention was

ARGUMENT

IX. ARGUMENT

Code 544.010 (( c )) is the Under established Texas law, Transportation Code Under

when approaching an intersection with a must obey when

controlling law that motorists must

stop sign or a yield sign.

Code 544.010.

Transportation Code 544010. Stop Signs and Yield Signs. “(a) Unless directed

by a police officer or traffic-controlled to proceed by traffic-controlled signal, the operator of a vehicle Vehicle or

streetcar approaching an intersection with a stop sign shall stop as provided by by

subsection (( c ).

). (

( c ) An operator required to stop by ) An by this section shall stop before

of the intersection. In the absence of entering the crosswalk or the near side of of a

marked stop line. In the absence of a crosswalk, the operator shall stop at a clearly marked

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 34 of

where

stop line, the operator must stop at the place nearest the intersecting roadway where

View of

the operator has a view on the intersecting roadway.

of approaching traffic on Leg.H.

roadway. Leg.H.

Stats. 1995 74‘“ 1995 74 th 165, effective September 1, leg. Sess. Ch. 165, 1995" Section (( c )) is the 1, 1995"

of this case.

relevant section of the code that applies to the facts of

The officer testified that Appellant was The was stopped for failure to stop at a

The officer agreed that a stop line is the designated designated point at a stop sign. The

point to stop. The officer The officer testified that a video that was shown was lost could have shown

shown where

appellant could have shown The lost video is material where Appellant stopped. The

The citation for failure to stop at a designated point at a stop sign is evidence. The

The intersection did not have a cross walk material evidence not lost. The walk nor a stop line

being the essential elements addressed in section (( c )) of the code that require and

must comply

mandate under such circumstances the stopping procedure a motorist must

with and follow.

As itit were, the jury had As had no video but the jury had had available a code of law the

jury jury could have assessed and applied to the controlling facts and circumstances of the

of the intersection.

configuration of physical configuration The jury only had discursive uncertain intersection. The

officer from which

testimony of the officer make its assessment.

which to make The court erred in its assessment. The

discretion to disallow the jury of jury hearing and assessing the written relevant portion of

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 35 of which to wholly judge the facts as they pertain to an by which

section (( c )) of the code by

off1cer’s reason for detention; facts that were and are inextricable and precisely officer’s

by a code of law.

controlled by

POINT OF POINT ERROR 4.

OF ERROR were violated under

Appellant’s Constitutional Rights were under the Fourth Fourth

Amendment of the United States Constitution and Amendment and Article I, 1, Section 9 of the

when the reasonable alternatives that were Texas Constitution when Texas were available to impoundment were impoundment were not implemented.

implemented.

STATEMENT OF

VII. STATEMENT OF FACTS

FACTS

The foregoing statements of the facts are incorporated herein by The by references for

was stopped at a residential street located in the town all purposes. Appellant was town of San

November 24, 2011. Appellant was Augustine, Texas in the evening of November was initially

stopped for improperly stopping “failure to stop at a designated stop sign”.

on his

Appellant’s detention revealed that Appellant did not have his driver’s license on

person. was arrested without warrant for failure to display driver’s person. Appellant was driver’ s license.

The officer The 2014 that he arrested Appellant without a August 4, 2014

officer testified at trial on August

(RR Vol. 2, P. 85, L. 24-25).

warrant. (RR warrant.

was impounded. Necessity

Following Appellant’s arrest, Appellant’s vehicle was

impoundment were discussed during defense of and available alternatives to impoundment of

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 36 of counsel’s cross examination of the arresting officer.

officer.

You impounded Q. Okay. You impounded the vehicle?

A. Yes, sir. (RR: Vol. 2, P. 87, L. 2-3)

Now does the San Augustine Police Department have a standardized Yes? Okay. Now Q. Yes?

impounding procedures?

policy governing impounding

we do.

A. Yes, sir, II believe we

Did you Q. Did you bring it it with you?

A. No, sir, I do not have it it with me.

Q. So, your telling the jury Q. jury that there is one?

A. There should be, yes, sir.

You say there should be? (RR: Q. You (RR: Vol. 2, P. 87, L. 1-2, 17-25).

1-2, 17-25).

I’m not sure. II don’t have the policy manual A. I’m manual in front of ofus.

us. (RR: Vol. 2, P. 88, L.

1) 1)

Q. Now, you that you Now, There were alternatives available to you you could have avoided

impoundment, were there not?

A. Are you when you you referring to when you approached the scene?

(RR: Vol 2, P. 95, P. 1-5) (RR: Vol 1-5)

was at the location; you Q. II was Q. you recall?

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 37 of

A. Yes, sir.

The care was Q. The was not turned over to me, and you knew I was you knew was the owner?

owner?

A. Yes, sir.

impound the vehicle and you you go ahead and impound Q. So you you conduct an inventory search?

A. Yes, sir. (RR: Vol.

Vol.2,

2, P. 95, L. 5-12).

SUMMARY OF

VIII. SUMMARY ARGUMENT OF ARGUMENT

The Appellant’s The made an objection that The Appe11ant’s Attorney, made The impound impound was

was improper.

impound and improper search, then it Being an improper impound it falls under 38.23 (a) of of the

Code of Criminal Procedure and must Texas Code must be excluded.

owner of the

The evidence in the trial record shows the availability of the owner The

vehicle being at the scene of the arrest to whom the officer whom officer could have given

of the vehicle.

possession of

The evidence in the record shows the vehicle was The was legally parked at the curb of

The evidence in the record a residential street two blocks from Appellant’s home. The

was not abandoned

shows the car was shows flow of traffic or was abandoned nor impeding the flow was a danger to

public safety. The evidence also shows The was not mechanically shows that the vehicle was

The evidence in the record shows immobilized. The

defective or immobilized. was no shows that there was

was used in the commission connection between the arrest or that the vehicle was commission of of a

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 38 of

The record shows crime. The shows the police officer impound Appellant’s vehicle officer chose to impound

based upon “C” misdemeanor upon a class “C” misdemeanor offense of failure to display driver’s license.

was no evidence in the record showing that the area in which There was which Appellant’s

vehicle was parked was was was especially vulnerable to crime against motor vehicles. The The

shows that Appellant did not consent to nor ask the police evidence in the record shows

impound and tow

officer to impound tow the Appellant’s vehicle. In light of the undeniable

of the vehicle, location of alternatives available, condition of of the vehicle, the police

impound and act in bad

officer chose to impound bad faith and disregard and violate the

Amendment of the Constitution constitutional rights proclaimed for all in the Fourth Amendment

of the United States and the given rights of all protected in Article 1, of of the 1, Section 9 of

Texas Constitution.

ARGUMENT

IX. ARGUMENT

The made an objection that The The Appellant’s Attorney, made The impound impound was

was improper.

impound and improper search, then it Being an improper impound it falls under 38.23 (a) of the

Code of Texas Code of Criminal Procedure and must be excluded.

excluded.

The impoundment established at trial was The available alternatives to impoundment was evidence

showing that the arresting police officer had no credible necessity existing to justify

impoundment of Appellant’s motor vehicle.

a lawful impoundment

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 39 of

The State bears the burden of The of proving that an impound may impound in lawful, and may

was arrested, (2) no

by demonstrating that (1) the driver was satisfy this burden by no

impoundment were available to ensure the vehicle’s alternatives other than impoundment

impounding agency had an inventory policy, and (4) the policy was protection, (3) the impounding was

Garza v.

followed. Garza 137 S.W.3d State 137 v. State, App-Houston [1 S.W.3d 878, 882 (Tex. App-Houston [l“st Dist.] 2004,

pet. Ref’d). pet. The owner The owner of the vehicle was The State did not prove that the was on site. The

impound or inventory policy and if San Augustine police department had an impound if the

policy’s were followed.

The Court squarely confronted issues of vehicle inventory searches and The

impounded in South Dakota impounded Dakota v. Oggerman, 428 U.S. 364, 96 S Ct. 3092, 49 L.Ed.2d v. Opperman,

1000 (1976). 1000 “The necessary predicate for any such search, however, is that the (1976). “The

automobile be lawfully impounded, that is to say, taken lawfully into official official

At 3100, 3100-01; the automobile has been Id., at 375, 376, 96 S.Ct. At custody.” Id.,

subject to less stringent warrant requirements for searches and seizures than other

Amendment. The

“effects” protected under the Fourth Amendment. The reasons for this are two fold.

of an automobile creates circumstances of such exigency First, the inherent mobility of

of the warrant requested is that as a matter of practical necessity strict enforcement of

impossible. Second, there is a lesser expectation of privacy with respect to an impossible.

Appellant’s Brief Eugene Pritchett Robert Eugene 40 of Page 40 of 60 automobile. South Dakota Dakota v. Opperman, supra.

v. Opperman,

of the

However, automobiles are considered “effects” and within the scope of

Amendment, See: Cady Fourth Amendment, Cody v.

V. Dombrowski, 93 S.Ct. 2523, 37 Dombrowski, 413 U.S. 433, 93

v. New

L.Ed.2d 706 (1973); see also: Coolidge v. New Hampshire 91 S Hampshire, 403 U.S. 443, 461, 91

CT. 2022, 2035, 29 L.Ed.2d 564 CT. “The word 564 (1971); “The word “automobile”

“automobile” is not a talisman

in whose Amendment fades away whose presence the Forth Amendment away and disappears.” Id.

Id. In order for

impoundment of an impoundment must be of the automobile must

of an automobile to be lawful the seizure of

Amendment.

reasonable under the Fourth Amendment.

may arise from: (1) an unattended vehicle impoundment may

Reasonable cause for impoundment

that is illegally parked or otherwise an impediment to traffic, Collins v.

v. State 630 S.

W.2d 890 (Tex. App. 1982- W.2d 1982- pet. ref’d).

ref‘d). Evidence at trial established that Appellant’s

flow of traffic on a

was not unattended or illegally parked or impeding the flow vehicle was

(RR Vol. 2, P. 93). (2) an unattended vehicle that the driver cannot residential road. (RR

remove Scmdel v. remove because he is injured or physically or mentally incapacitated, Sandel State v. State,

S.W2d 283 ((Tex.

253 S.W2d Tex. Cr. App. 052); Broughton v. 2d 147 State 643 S.W. 2d v. State, 147 (Tex. App.

1982 .no pet). 1982 was no evidence that the Appellant was pet). There was was unable to remove remove his

was physically or mentally of his being injured or that he was vehicle because of

incapacitated. (3) a vehicle that has been stolen or used in the commission of another

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 41 of

Page 41

crime. Gauldin v.

v. State, S.W.2d 411

State 649 S.W.2d 411 (Tex. Cr. App. 1984);

1984); Pearson v. State 649 v. State,649

SW2d 786 S.W.2d 786 (Tex. Cr. App. 1983, 1983, pet. ref’d),

ref‘ d), Evidence at trial established that

was not stolen or connected with nor used in the commission of Appellant’s vehicle was

(RR Vol. 2, P. 99). (4) a vehicle the becomes another crime. (RR becomes unattended because the

removed form the vehicle, placed under arrest, and his property cannot be driver is removed

by any

protected by means other than impoundment.

means impoundment. Evers v. S.W.2d 46 State 576 S.W.2d v. State,

1978)

(Tex. Cr. App. 1978)

owner was

Evidence at trial established that the owner was at the scene at the time of

appellant’s arrest and the owner was available to safeguard owner’s owner was owner’s vehicle. Yet, the

who knew

officer who

arresting officer knew the owner owner was knew the owner was an attorney, knew was the owner owner was owner

knew that the owner’s

of the vehicle, and knew of was in compliance with insurance owner’s vehicle was

would not allow the owner and registration requirements however, would owner possession of of the

vehicle. (RR Vol. 2, P.

(RR F. 95-95)

An automobile may An may be impounded impounded if removed from his automobile if the driver is removed

no other alternatives are available other than and place under custodial arrest and no

impoundment to insure the protection of the vehicle. Bevavides v. impoundment S.W.2d State 600 S.W.2d v. State,

1980); Christian v.

809 (Tex. Cr. App. 1980); v. State, S.W.2d 359 (Tex. Cr. App. 1980);

State 592 S.W.2d 1980);

Daniels v. S.W.2d 809 (Tex. Cr. App. 1980).

State 600 S.W.2d v. State, 1980).

Appellant’s Brief Eugene Pritchett Robert Eugene 42 of Page 42 of 60

We note that police officers need not independently investigate possible We

impoundment absent objectively demonstrable evidence that alternatives to impoundment

Eugene Redmond

alternatives do in face, exist. Jonathan Eugene Redmond v.

v. State, 05-09-01461 -

State, (No. 05-09-01461-

CR) (Tex. App.- CR) App.- Dallas 2011); see also Maybergy Mayberry v.

v. State, W.2d 176, State, 830 S. W.2d 180 176, 180

1992, pet ref’d).

(Tex. App. -- Dallas 1992, ref‘d).

When impoundment When impoundment follows custodial arrest, appellant courts have considered

impoundment. (1) the

of the impoundment.

several factors in determining the reasonableness of

someone at the scene of of someone

availability of whom the police could have given of the arrest to whom

of the vehicle, (2) whether the vehicle was possession of flow of traffic or was impeding the flow

was was locked, (4) whether the was a danger to public safety, (3) whether the vehicle was

would likely be of such duration to require the police to take detention of the arrestee would

some reasonable connection between the was some

protective measures, (5) whether there was

was used in the commission of a arrest and the vehicle, and (6) whether the vehicle was

At 179-80.

Id. At crime. Id. was established in court showing l79-80. Objective evidence was showing there

impoundment that did in fact exist and were available.

were reasonable alternatives to impoundment

The arresting officer The community care-taking justification for officer did not assert any community

of the officer’s

the impoundment, and in light of no such justification off1cer’s testimony at trial no justification

made no showing that Appellant’s The prosecution nor the testifying officer made existed. The

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 43 of car was way or crosswalk, or was was connected with a crime, blocked a drive way was abandoned,

stolen, and immobilized, or posed a hazard or impediment to other traffic. It is also

was legally parked in a residential area two significant that Appellant’s car was significant two blocks

significant, the officer testified the registered from Appellant’s residence. Also significant,

was available at the scene. The owner of the vehicle was owner The officer testified testified that he

impounded made the arrest. (RR: impounded the car after he made (RR: Vol. 2, P. 94, L. 21)

The evidence for review affirmatively shows The shows there were reasonable and lawful

impoundment. Respectfully, it alternatives available to avoid impoundment. it cannot be concluded

~ that the error was upon the jury.

was harmless beyond a reasonable doubt in its effect upon jury.

Tex.R.APP.P.Ann 81(b)(2).(Pamp.1989) Tex.R.APP.P.Ann 8 l (b)(2).(Pamp. l 989) Gauldin v. State 683 v. State, S.W.2d at 415;

683 S.W.2d 4 l 5; Fenton

v. State 785 S.W.2d v. State, App.- Austin 1990)

S.W.2d 443 (Tex. App.- 1990)

POINT OF POINT ERROR 5.

OF ERROR The inventory search of Appellant’s vehicle was The was an an illegal unconstitutional

Texas

investigative search for evidence in violation of Article 1, Section 9 of the Texas

Constitution.

STATEMENT OF

VII. STATEMENT OF FACTS

FACTS

The forgoing statements of the facts are incorporated herein by The by references for

all purposes.

purposes.

Appellant’s Brief Eugene Pritchett Robert Eugene 44 of Page 44 of 60 was followed for over a half Appellant was was hunch because Appellant was half mile on a hunch

on a road where

officer while driving on

by a police officer observed by known drug where allegedly a known

was located. (RR:

place was (RR: Vol. 2, P. 48)

was stopped on a residential street located in the town Appellant was town of San

Augustine, Texas in the evening of November was initially 201 1. Appellant was

November 24 2011.

stopped for “failure to stop at a designated point at a stop sign” located 45 feet from

the nearest place to the intersecting roadway. (RR: Vol. 2, P. 73-79)

Appellant’s detention revealed that Appellant did not have his drivers license

was arrested without warrant for failure to display drivers on his person. Appellant was on

The police testified at trial on August 4, 2014 license. The 2014 that he arrested Appellant

(RR: Vol. 2, P. 85, L. 24-25)

without a warrant. (RR:

impounded and

was impounded

Following Appellant’s arrest, the Appellant’s vehicle was

The record shows

inventoried. The shows that there were reasonable alternatives available to

impoundment and inventory. (RR: Vol. 2, P. 85-88, 91-95) impoundment

was conducted resulting in a impoundment, an inventory search was Following impoundment,

of less than 0.01

trace net weight of gram of cocaine found at night of a gram

0.01 hundredths of

view by

allegedly in plain view by a second police officer who was officer who was not conducting the

was searching for evidence.

inventory search but was

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 45 of

officer about inventory list.

Counsel questioned the arresting officer

The car was Q. The was not turned over to me, and you knew I was you knew was the owner?

owner?

A. Yes, sir.

impound the vehicle, and you you go ahead and impound Q. So you you conduct an inventory search?

A. Yes, sir.

Q. Did Q. Does that Did -- -- now, the standard criteria for inventory is an inventory list. Does

make sense? make

of value in the vehicle.

A. Yes, sir, anything of .

And you Q. And you took an inventory list?

A. Yes.

You did? Q. You

A. There should be one, yes, sir. II don’t see it it with this report.

(RR” Vol. 2, P. 95, L. 10-25)

Q. II beg your pardon? (RR” 10-25) ?>O?>@.>O?>O?>@>

don’t see one with this -- -- report.

A. I don’t

You listed the valuables that you Q. You you inventoried?

you with this report.

A. II -- -- I should have, but II can’t tell you

we don’t have itit right?

Q. But we

Your correct on that. (( RR:

A. Right. II understand. Your RR: Vol. 2, P.96, R96, L. 1-5)

1-5)

Appellant’s Brief Eugene Pritchett Robert Eugene 46 of Page 46 of 60

And I’m Q. And l’m suggesting to you was you conducted an inventory, an inventory that was you that you

mse to make a ruse make a search without a warrant of You were searching of a motorist vehicle. You

for criminal evidence, and you knew you you knew you did not have the probable cause, didn’t you,

otherwise?

A. I didn’t have probable cause for an evidentiary search, no.

when officer Blackwell came was conducting an inventory search when A. No, sir. II was came up.

officer Blackwell was

Q. Okay. So then officer making a search on his own, wasn’t he? If was making

must have been searching -- --

wasn’t part of the inventory search, he must he wasn’t

know what

don’t know A. II don’t You would what officer Blackwell does. You would have to ask him. (RR:

(RR: Vol.

2 P. 96-97)

SUMMARY OF

VIII. SUMMARY ARGUMENT OF ARGUMENT

The evidence in the record shows The owner of shows that the owner was available of the vehicle was

The arresting officer testified that he at the scene to take possession of the vehicle. The

impounded the vehicle, and conducted an arrested Appellant without a warrant, impounded

The arresting officer testified that a second officer was inventory of the vehicle. The was not

of the inventory search but part of was searching for evidence allegedly discovered at was

The alleged plain view

night in plain view. The view evidence consisted of a trace-net weight

gram of

0.01 hundredths of a gram less than 0.01 of cocaine.

Appellant’s Brief Eugene Pritchett Robert Eugene 47 of Page 47 of 60

The arresting officer The impound which officer chose to impound which allowed opportunity to conduct

a specious inventory search for investigative purpose that otherwise the arresting

officer lacking the probable cause required under the automobile exception to the

on the totality

warrant requirement did not have nor could not have established based on

of the circumstances of the arresting officer’s of off1cer’s initial reason for following Appellant,

misdemeanor offence, and the circumstances of aRR:est for misdemeanor of the scene of detention,

of which, provided the arresting officer with legal probable cause to search none of

Appellant’s vehicle.

The inventory search of Appellant’s vehicle was The was an unconstitutional

was conducted in violation of investigative search that was of Article 1, of the 1, Section 9 of

Texas Constitution.

ARGUMENT

IX. ARGUMENT

made an objection that The The Appellant’s Attorney, made The The impound impound was

was improper.

impound and improper search, then it Being an improper impound it falls under 38.23 (a) of the

Code of Texas Code of Criminal Procedure and must be excluded.

excluded.

To rebut the presumption of proper police conduct, a defendant must show To show the

was conducted without a warrant and once the defendant rebuts the search was

presumption the burden shifts to the State to either produce evidence of of a warrant or

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 48 of prove the reasonableness of of the search.

Russell v. SW2d (TeX.Cr.App. 1986);

State 717 S.W.2d 7, 9 (Tex.Cr.App. v. State, 1986); Telshow v. 964 State 964 v. State,

2d 303, 307 (Tex.App.

S.W. 2d Houston [14 (Tex.App. -- Houston

th

[l4”‘ Dist] 1998,

Dist.] no pet.); White 1998, no White v. 871 State 871 v. State,

S.W.2d 833, 836-37 (Tex.App.-Houston [14 S.W.2d th [14“‘ Highwarden 1994, no pet.) See Highwarden Dist.] 1994,

v. S.W.2d 479,481 V. State, 846 S.W.2d & n. 2 (Tex. App.-Houston 479,481 & App.-Houston [14 th [l4‘“ 1993), pet.

Dist.] 1993),

dism’d as improvidently granted, 871 dism’d S.W.2d 726 (Tex.Crim. App.

871 S.W.2d App. 1994). The 1994). The

officer testified

arresting officer testified that he arrested Appellant without a warrant and did not

have probable cause to search Appellant’s vehicle (RR: Vol. 2, P. 85)

A unanimous A unanimous ruling stated that a vehicle stop is a seizure of not only the

vehicle but of its occupants. Brendlin v.California, 551 U. S. 249, 127 v.Cali[0rnia, 551 127 S.Ct. 2400,

A person is seized for constitutional purposes, when 132 (2007). A

168 L.Ed.2d 132 168 when under

would believe that he is not free to all of the circumstances, a reasonable person would

leave. Nottingham v. W.2d 585 (Tex.App.

State 908 S. W.2d v. State, (Tex.App. -- Austin 1995). A person is 1995). A

seized i.e., i. when he has been restrained by e., arrested, only when means of physical force or by means

when show of authority. California when he has submitted to a show v. Hodari, Calizornia v. 499 U.S. 621, Hodari, 499

111 S.Ct 1547, 111 113 L.Ed.2d 690 (1991); Medtord 1547, 113 v. State Medford v. S.W.2d 769 (Tex.Cr.

13 S.W.2d

State, 13

App. 2000). In order to challenge a search, the defendant has the burden to prove he App. 2000).

has standing that he has a legitimate expectation of privacy, in the premises or thing

Appellant’s Brief Eugene Pritchett Robert Eugene 49 of Page 49 of 60

Granados v.

searched or seized. Granados S.W.3d 217 (Tex.Cr.App.

State 85 S.W.3d v. State, The (Tex.Cr.App. 2002) The

had a reasonable expectation of privacy in the vehicle and standing to Appellant had

object to a search of the vehicle because Appellant had exclusive control of and

owner to use the vehicle.

received permission from the owner

misdemeanor offense of

Following Appellant’s arrest without warrant for the misdemeanor of

was handcuffed and confined failure to display driver’s license, appellant was confined to the back

officers control unit. (RR:

seat of the arresting officers (RR: Vol. 2, P. 86)

When a policeman has made When made a lawful custodial arrest of the occupant of an

may as a contemporaneous incident of automobile, he may of that arrest, search the passenger

compartment of that automobile. New ofthat York v.

New York v. Belton 101 S.Ct 2860, Belton, 452 U. S. 454, 101

69 L.Ed. 2d The Belton holding was 2d 728 (1981). The was laid to rest in Arizona v. Grant 556 v. Grant,

129 S.Ct. 1710,

U. S. 332, 129 of A.L.R. Fed.2d 657 (2009). In place of 1710, L.Ed.2d 485, 47 A.L.R.

may search a vehicle

approach: “Police may

Belton, the court adopted a two-pronged approach:

incident to arrest only if of the passenger if the arrestee is within reaching distance of

compartment at the time of the search or it compartment it is reasonable to believe that the vehicle

Gant at 1723.

of the arrest.” Gant

contains evidence of was confined in the 1723. Appellant was

of the arresting officer’s backseat of officer’s patrol unit and unable to reach the passenger seat

was no

of his vehicle and there was of no reasonable grounds to suspect that evidence of failure

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 50 of to display drivers license would of the would be found in the passenger compartment of

The arresting officer vehicle. The officer testified that he had no probable cause justification justification to

Appe1lant’s vehicle. (RR: Vol. 2, p. 89)

search Appellant’s

“An inventory search need not be predicated upon “An upon the same same requirements for

probable cause or in obtaining a search warrant. upon the Its existence rests upon

impounded

officer has toward a lawfully impounded caretaking responsibility a police officer

automobile.” Gill v. W.2d 307, 319 (Tex.Cr.App. 1980)

State 625 S. W.2d v. State, 1980)

The state will contend that the warrantless search was The was permissible as an

inventory search under South Dakota Dakota v. Oggerman 428

v. Opperman, 428 U.S. 364, 96 S.Ct 3092, 49

The burden of

1000 (1976). The L.Ed.2d 1000 upon the state.

of proof in that regards rests upon

Delgado Delgado v.

v. State, S.W.2d 718, 721 State, 718 S.W.2d 721 (Tex.Cr.App. 1986)

1986)

An inventory search is to ascertain the contents of An impounded of a properly impounded

where a necessity exists (1) to protect the defendant’s property while it automobile, where it

is in police custody, (2) to protect the authorities against claims of lost or stolen

property, or (3) to protect the police from potential danger. The necessary predicate The

for an inventory search is that the automobile be lawfully impounded, that is to say,

An automobile may

Opperman, Supra. An

taken lawfully into official custody, Opperman, may be

impounded if impounded removed from his automobile and placed under custodial if the driver is removed

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 51 of

Page 51

of the

arrest and no other alternatives are available other than to insure the protection of

vehicle. Evers v.State, v.Slate 576 W.2d 46 (Tex.Cr.App 1978);

576 S. W.2d 1978); Christian v. State 592 v. State,

(Tex.Cr.App. 1980).

S.W.2d 359 (Tex.Cr.App. 1980). Alternatives were available to insure the protection

The owner

of the vehicle. The of owner of was personally at the scene of of Appellant’s vehicle was

owner’s vehicle as an alternative of owner’s

detention and available to insure the protection of

impoundment and inventory. (RR: Vol. 2, P. 116) to impoundment The vehicle could have been 116) The

owner of

by the owner

safely protected by of the vehicle. Evers, Evers, Supra.

An inventory search on An on a traffic arrest is illegal if if the vehicle is parked lawfully

at the time and no need to take the vehicle into custody Fenton v.

Fenton S.W.2d State 785 S.W.2d v. State,

(TeX.App. -- Austin 1990, 443 (Tex.App. 1990, no was legally parked at a curb on The vehicle was

no pet.). The

two blocks from Appellant’s home. (RR: Vol. 2, P. 91)

a residential street located two

Impoundment and inventory search is legal only if Impoundment no alternative to if there is no

impoundment. Backer v. impoundment. S.W.2d 463 (Tex.Cr.App. 1983).

State 656 S.W.2d v. State, Owner of the 1983). Owner

was a reasonable alternative to vehicle at the scene to take custody of the vehicle was

impoundment and inventory. (RR: Vol. 2, P. 106-107) impoundment 106-107)

In a leading Texas case, Benevidas v. S.W.2d 809 (Tex.Cr.App.

State 600 S.W.2d v. State, (Tex.Cr.App.

of Criminal Appeals indicated impoundment 1980) the Court of 1980) would impoundment and inventory would

To remove

be permissible in the following situations: “(1) To from an remove a vehicle from an

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 52 of

was not involved in an accident. (RR:

accident scene.” Appellant’s vehicle was (RR: Vol. 2,

106) P. 106)

To remove “(2) To remove a vehicle parked parked in violation of regulations.” Appellant’s vehicle Vehicle

was way, nor parked in a no-parking zone, and was was not blocking a drive way, was legally

parked at a curb on a residential street. (RR: Vol. 2, P. 107) The owner 107) “(3) The owner or

driver requested or consents.” owner requested Neither Appellant nor owner

impoundment or consented impoundment. impoundment impoundment. (RR:

(RR: Vol 2, P. 93) “(4) Officer

was

reasonably believes vehicle is stolen.” Officer did not believe the vehicle was

The vehicle

stolen. (RR: Vol. 2, P. 94) “(5) The abandoned.” Appellant’s vehicle had Vehicle is abandoned.”

not been abandoned. (RR: Vol. 2, P. 92)

The vehicle is a hazard.”

“(6) The was not a hazard impeding hazard.” Appellant’s vehicle was

The vehicle

traffic. “(7) The danger to Vehicle is so mechanically defective that it creates a danger

highway.” Appellant’s vehicle was others using the highway.” was not mechanically defective nor

A statute authorizes impoundment.”

immobilized. (RR: Vol. 2, P. 99) “(8) A immobilized. impoundment.” No No

The driver is arrested for being impoundment. “(9) The

applicable statute authorizing impoundment.

and no

intoxicated while in the vehicle and no other person person is available to drive the

was arrested for failure to vehicle or otherwise safeguard the vehicle.” Appellant was

owner was

display driver’s license, the owner was available at the scene to drive and safeguard

Appellant’s Brief Roben Eugene Robert Eugene Pritchett of 60 Page 53 of

The driver is removed

(RR: Vol. 2, P. 95-96) “(10) The the vehicle. (RR: removed from from his

and placed under

automobile and automobile and no under arrest and no other alternatives are available other

impoundment to insure protection of the vehicle.” Owner than impoundment than Owner available to take

remove vehicle. Appellant’s possession and remove Appe1lant’s wife located two blocks from vehicle

remove vehicle. (RR: Vol. 2, P. 94) Benevidas, and available to take possession and remove Benevidas,

Supra.

may be lawful in a variety of circumstances.

Impoundment of an automobile may Impoundment

Mayhood v. State Mayhood v. W.2d 873, 874 (Tex. App. 1984, State, 669 S. W.2d 1984, pet ref’d).

refd). Reasonable

may arise from: (1) an unattended vehicle that is illegally impoundment may

causes for impoundment

parked or otherwise an impediment to traffic, traffic, Collins v. W.2d 890 (Tex.

State 630 S. W.2d v. State,

1982, pet ref’d);

Cr. App. 1982, remove ref’ (1); (2) an unattended vehicle that the driver cannot remove

Sande] v.

because he is injured or physically or mentally incapacitated, Sandel State 253 S.

v. State,

W.2d 283 W.2d 1952); Broughton v.

283 (Tex. Cr. App. 1952); v. State, W.2d 147 State, 643 S. W.2d 147 (Tex. App.

no pet.) (3) a vehicle has been stolen or used in the commission of another 1982, no 1982,

crime, Gauldin v.

v. State, SW2d 411

State 683 S.W.2d 1984); Pearson 411 (Tex. Cr. App. 1984); Pearson v. State 649 v. State,

1983, pet ref’d);

S.W.2d 786 (Tex. App. 1983, becomes unattended because ref’ d); or (4) a vehicle becomes

removed from the vehicle, placed under arrest, and his property cannot the driver is removed

be protected by means other than impoundment, Evers v.

by any means W.2d 46 State 576 S. W.2d v. State,

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene of 60 Page 54 of

The arresting officer stated that impoundment 1978). The

(Tex. Cr. App. 1978). impoundment and inventory

was solely based upon was arrest. (RR: Vol. 2, P. 94)

upon Appellant’s arrest.

The arresting officer conducted the inventory of Appellant’s vehicle. The The The

burden is on show a lawful inventory. State v.

on the State to show S.W.2d 105, Giles 867 S.W.2d v. Giles, 105,

108 (Tex. App. -- El Paso, pet. ref’d). 108 As in Giles and this case, the State did not refd). As

provide the trial court with a written inventory Policy.

impounded in the first place. The Appellant’s vehicle should not have been impounded The

impoundment other than Appellant’s arrest that had State did not offer any reason for impoundment

no The available alternatives were affirmed in court. no connection with the vehicle. The

The testimony in court showed The showed that the officer’s off1cer’s inventory search did not include a

written inventory list nor did the State provide the court with a written inventory

policy. An inventory search is permissible under the federal and state constitutions An

if impoundment. if conducted pursuant to a lawful impoundment.

The court of The of criminal appeals stated that “before and inventory search can be

impoundment.”

must be an inquiry into the lawfulness of the impoundment.”

upheld as lawful there must

Benevides, Benevides, Supra.

The impound was The impound was a violation of of Appellant’s rights under Article 1, 1, Section 9

of the Texas Constitution. of Constitution.

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 55 of

CONCLUSION X. CONCLUSION

The issues addressed in Appellant’s appeal are fundamental to the ingrained The

judicial principals characteristic of sovereign nation. Appellant initially argued that

was prohibited by

his subpoena was by an insupportable technicality foreclosing receipt of

evidence that could be of an importance to a legal defense. Authorities acting in

no judicial

behalf of the State concluded evidence unavailable or lost should have no

was

weight within a legal matter concerning the innocence beyond guilt. Appellant was

by a judicial system from imparting to a jury an instructive guidance inherent subdued by

Freedom from being subjected to of law for its understanding. Freedom within a code of

was subordinated to a callous disregard for the unreasonable seizure and search was

people’s rights.

Appellant respectfully submits that he has shown may be what shown that due process may what

is only due. Appellant’s right to be secure under Article 1, 1, Section 9 of the Texas

was of

Constitution was moment when of no moment when Appellant’s vehicle was was impounded

impounded and

impound were readily available to police officers searched even though alternatives to impound

The arresting officer

acting in disrespect to their oath to the State. The who arrested officer who

impounded and inventoried Appellant for failure to display drivers license impounded

A commenced searching Appellant’s vehicle. A second police officer arrived and commenced

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 56 of

Appellant’s vehicle not for valuables nor evidence to display drivers license but

The second officer without of another crime -- -- any crime. The searching for evidence of

developed probable cause to search Appellant’s vehicle suspiciously found a trace

amount less than 0.01 amount gram of cocaine. The 0.01 hundredth of a gram The exclusionary rule is

warranted.

Appellant entrusts the Honorable Court to exclude the unlawfully obtained

remand of

evidence and enter a dismissal or accord a remand new trial.

of this case for a new

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 57 of

PRAYER FOR

XI. PRAYER FOR RELIEF

RELIEF

WHEREFORE ABOVE PREMISES WHEREFORE ABOVE PREMISES CONSIDERED, CONSIDERED, Appellant prays that Honorable Court reverse the judgement judgement of the trial court and render judgement judgement in

of Appellant, or in the alternative, Appellant respectfully request that the favor of

273“rd District Court

remand this case back to the 273 Honorable Twelfth Court of Appeals remand

new trial.

of San Augustine County, Texas for a new of

Respectfully submitted,

LAW OFFICE LAW OFFICE OF DONOVAN PAUL OF DONOVAN DUDINSKY PAUL DUDINSKY

701 South Liberty Street 701

75972

San Augustine, Texas 75972 Phone: Phone: 936-275-9871

936-275-9871

Fax: 936-275-9655

936-275-9655

E-Mail: d auldudinsk ahoo.com dpauldudinsky@yahoo.com

XII. CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE

copy of

I hereby certify that a true and correct copy was served of this Appellant’s Brief was

on each attorney of record or party in accordance with the Texas Rules of Civil on

on this 12

Procedure (Appealed) on 12"‘ th

day of January, 2015.

/s/donovan paul dudinsky

___________________________

Donovan Paul Dudinsky Donovan

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 58 of

CERTIFICATE OF

XIII. CERTIFICATE COMPLIANCE OF COMPLIANCE

document contains 11,116

I certify that this document Words (counting all parts of the 11,116 words

document was

font. I certify that this document Word Perfect X6, and according was prepared with Word

TRAP 9.4(i)(1) by TRAP

to the programs word-count function, the sections covered by

11,116 words.

contains 11,116

/s/donovan paul dudinsky

donovan

___________________________

Donovan Paul Dudinsky Donovan

Appe11ant’s Brief Appellant’s Eugene Pritchett Robert Eugene of 60 Page 59 of

APPENDIX

XIV. APPENDIX XIV.

APPENDIX “A” APPENDIX “A” From Illegal Detention Motion to Suppress (Evidence Obtained From Motion

Impoundment and Inventory).

and Illegal Impoundment

APPENDIX “B” Judgement of Conviction by APPENDIX “B” by Court

APPENDIX “C” Trial Court’s Certification APPENDIX “C” of Appeal Certification of Defendant’s Right of

APPENDIX “D” Defendant’s Written Notice of Appeal APPENDIX “D” Appeal

APPENDIX “E” APPENDIX “E” of Defense Exhibits 2, 3, and 4 Photographs of Intersection of

Alleged Traffic Violation

Appellant’s Brief Eugene Pritchett Robert Eugene of 60 Page 60 of

APPENDIX “A”

IN THE 273"’ JUDICIAL DISTRICT COURT OF . FILED SAN AUGUSTINE COUNTY, TEXAS -

#§_L—,_30"7‘:%‘i@5>"

STATE OF TEXAS

.4

Clerk

JEAN STEPTOE District SAN AUGUST‘ TEXAS

THE STATE OF TEXAS § or W.“

VS. § Cause No. CR-13-8411 Cause No. CR-11-8412

ROBERT EUGENE PRITCHETT §

MOTION To SUPPRESS

(Evidence Obtained From Illegal Detention and Illegal Impoundment and Inventory)

TO THE HONORABLE JUDGE OF SAID COURT:

Now Comes Defendant, Robert Eugene Pritchett respectfully moving the Honorable Court to suppress and exclude illegally obtained evidence pursuant to an unlawful detention and illegal

impoundment and inventory Search of Defendant’s vehicle in violation of the Fourth Amendment

of the United States Constitution and Article 1, Section 9 of the Constitution of the State of

Texas, and Article 38.23 of the Texas Code of Criminal Procedure.

Statement of Facts

In the early evening of Thanksgiving November 24, 2011, Defendant’s vehicle was observed

on a public roadway by a passing police officer. The police officer began pursuit and followed

Defendanfs vehicle for half-mile. The police officer stopped the Defendant two blocks from

Defendant’s residence for fail to stop at a designated point at stop sign. Upon his approach to

Defendant’s vehicle, police officer who knew Defendant, knew his place of residence, knew that

Defendant’s place of employment was a local law firm, asked Defendant for Defendant’s driver’s

license that Defendant did not have on his person at the time, then asked Defendant for consent

to Search Defendant’s vehicle. Defendant not consenting to search, was asked to exit his vehicle,

Page 1.

©@l?@Y

at which time, police officer then asked Defendant to open his mouth into which police officer

shined a flashlight. A second police officer showed up and approached Defendant for purpose of detecting some suspicious odor and detecting none told the first police officer to arrest

Defendant for not having his driver’s license on his person. Defendant’s hands were handcuffed

behind his back. Defendant then being secured was placed inside first police offlcer’s patrol car.

Defendant’s employer (lawyer) and owner of Defendant’s vehicle that Defendant drove for

business and personal use pursuant owner’s permission, nevertheless, owner of vehicle arrived

at the scene of detention. The police officers nevertheless seized, impounded, and conducted an

inventory of said vehicle, during which claiming discovery of a trace or a smear of cocaine in the

inside of the door pocket/panel of open driver’s side door.

Agggment and Authorities

I.

Roadside detention of Defendant’s motor vehicle was in violation of Transportation Code

section 544.010 that governs operator stopping procedure when approaching Stop Signs and

Yield Signs, to wit: (a) “unless directed to proceed by a police officer or traffic-control

signal, the operator of a vehicle or streetcar approaching an intersection with a stop sign shall

“

stop as provided by Subsection ( c )”. ( c ) An operator required to stop by this section shall stop before entering the crosswalk on the near side of the intersection. In the absence of a cross-

walk, the operator shall stop at a clearly marked stop line. In the absence of a stop line, the

operator shall stop at the place nearest the intersecting roadway where the operator has a View

of approaching traffic on the intersecting roadway”.

Page 2.

The officer who conducted the roadside detention, impoundment and inventory search of

Defendant’s vehicle issued a warning citation on the basis that Defendant Failed to Stop at a

Designated Point at Stop Sign. Defendant was subsequently arrested and issued citation for

Fail to Display DL. However, The erroneous day/date/time of Contact appearing at the top

of citation regarding warning for failed to stop at a designated point at stop sign and arrest/

citation for failure to display driver’s license is dated: 11/25/2011 3:22 AM.. Showing not

that the encounter had though factually taken place in the early evening of November 24, 201 1,

but shows the encounter took place on the following morning of November 25, 2011 @ 3:22 am.

The Defendant’s vehicle was observed by a police officer being on a public roadway. The

police officer had not observed a crime having been committed nor did said officer observe a

crime in progress. The police officer pursued and follow Defendant’s vehicle for one-half mile.

A hunch, suspicion, or good faith perception is not enough alone to satisfy the probable cause burden. St11ll v. State, 772 S.W.2d 449 (Tex.Cr.App. 1989). The events perceived by the police

officer must be out of the ordinary, suspicious and tie a suspect with a criminal act. _S_tfi

The Defendant was pulled over and subjected to roadside detention. A person is seized for constitutional purposes, when under all of the circumstances, a reasonable person would believe

that he is not free to leave. Nottingham v. State, 908 S.W.2d 5 85 (Tex.App.— Austin 1995).

Incident to the initial roadside detention, the Defendant was arrested without warrant for not

having his drivers license on his person, handcuffed, and Defendant was placed inside a patrol

car. An arrest occurs when a person’s liberty or movement is restricted or restrained. Arnores v.

§t_at_e, 816 S.W. 2d 417 (Tex.Cr.App. 1991). The police searched Defendant’s vehicle incident to

Defendant’s arrest. In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed. 2d 485, A.L.R.

Page 3

Fed. 2d 657 (2009) the Court adopted a two-pronged approach: “Police may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at

the time of the search or it reasonable to believe that the vehicle contains evidence of the offense

of arrest.” Defendant was secured in patrol car and therein was unable to reach the passenger

compartment of his vehicle, and the vehicle did not contain evidence of the crime of not having

his drivers license. “The Defendant was arrested for having a suspended license; there were no

reasonable grounds, reasonable suspicion, or probable cause to suspect that evidence of

license suspension would be found in the vehicle.” §a_n_t_.

Following the placement of Defendant in the patrol car, the police officers impounded

Defendant’s vehicle and conducted an inventory search of Defendant’s vehicle at the scene of

detention. Impoundrnent and inventory search legal only if no alternative to impoundment.

Backer v. State, 656 S.W.2d 463 (Tex.Cn'm.App. 1983). Inventory search on traffic arrest is

illegal if vehicle parked lawfully at time and no need to take it into custody. Fenton v. State,

785 S.W.2d 443 (Tex. App.— Austin 1990, no pet.)

Defendant’s vehicle was lawfully parked on a residential roadway near its roadside curb.

Defendant’ s vehicle was not parked in a no parking zone. Defendant’s lawfully parked vehicle

did not impede traffic. Defendant’s vehicle had not been abandoned or immobilized.

Defendant’s vehicle was lawfully parked two blocks away from Defendant’s residence where

Defendant’s wife resided and was available to take possession of and safeguard Defendant’s

vehicle. Defendant’s arrest for traffic violation would have required Defendant to be transported

to jail and following procedure would have been in a short time (was released on personal

recognizance) released and could have returned to the vehicle to take possession of and

Page 4

safeguard vehicle. Defendant’s vehicle was not stolen. Defendanfs lawyer, employer, and owner

of vehicle who gave Defendant permission to drive vehicle for business and personal use was

available at the scene and time of detention to take possession of vehicle. Defendant’s vehicle

was not seized as evidence being connected to a crime. There was no reasonable connection

between the arrest and the vehicle.

An automobile may be impounded if the driver is removed from his automobile and placed under custodial arrest and no other alternatives are available to insure the protection of the

vehicle. Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.l978).

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades

away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035,

29 L.Ed. 564 (1971). Because judicially sanctioned inventory search of automobile is dilution of

Fourth Amendment right to be secure against unreasonable searches and seizures, impoundment

and search must be carefully examined and narrowly confined in each case. Rodriguez v. State,

641 S.W.2d 955 (Tex. App.— Amarillo 1982). Irnpoundment improper . . .no showing car

illegally parked. RodrigL_1ez.

In the leading Texas case, Benavides v. State, 600 S.W. 2d 809 (Tex.Crim.App. 1980) the

court of Criminal Appeals indicated irnpoundment would be likely be permissible in the

following situations:

1. To remove a vehicle from an accident scene. Defendant’s vehicle was not involved in an accident.

2. To remove a vehicle parked in violation of regulations. Defendant’s vehicle was not parked in violation of regulations.

3. The owner or driver requested or consents. Neither owner or driver requested or consented.

4. Officer reasonably believes vehicle is stolen. Vehicle not stolen.

Page 5

5. The vehicle is abandoned. The vehicle was not abandoned. 6. The vehicle is a hazard. The vehicle was not a hazard impeding traffic flow. 7. The vehicle is so mechanically defective that it creates a danger to others using the highway. The vehicle was not mechanically defective. 8. A statute authorizes impoundment. No applicable statute authorizing impoundment. 9. The driver is arrested for being intoxicated while in the vehicle and no other person is available to drive the vehicle or otherwise safeguard it. The driver was not arrested for being intoxicated, and other persons were available to drive the vehicle and safeguard the vehicle.

10. “If the driver is removed from his automobile and placed under arrest and no other alternatives are available other than impoundment to insure the protection of the vehicle.” Other alternatives were available other than impoundment to insure the protection of the vehicle. Benavidas

WHEREFORE, said Defendant prays that hearing be had hereon and that upon hearing hereof that this Court judicially find and determine that said detention and seizure was without

warrant and impoundment unreasonable in violation of the Fourth and Fourteenth Amendments

to the Constitution of the United States and Article 1, Section 9 of the Constitution of Texas, that

the substance seized and taken from said vehicle of the Defendant at said time be suppressed and

excluded from evidence in this case pursuant to Section 38.23 (a) of the Texas Code of Criminal

Procedure and the,State of Texas and its agents prosecuting this case be ordered to refrain from

offering in evidence or producing in the presence of the jury on the trial of this case and

substance claimed by the State to be trace/smear cocaine and from asking any question of either

of said police officers as to the presence of said substance in said vehicle at said time and place.

~onovan aul Dudinsky Counsel for Defendant ~~ + A .. Ll-,

SWORN TO AND SUBSCRIBED BEFORE ME by Donovan Paul Dudinsky onkiiiiya-i-, 2014, who being one and same acknowledged by his signature in my presence to which signature have placed my hand and seal of office.

~ Notary Public, State of Texas ~

~~ JANICE Nmaw Public,

K. MILLER

sxme 01‘ mos

My Commission Expires Page 6 San Augustine Counbf’ Texas My Commission Expires. le — t2 A 1 . .

_

Ocvooec 22. 2017

ORDER

The above Motion to Suppress Evidence Obtained From Illegal Detention and Illegal

~

Impoundment and Inventory was duly filed, presented, and heard at the time and manner

required by law and the Court having duly considered same, finds that said Motion should be

and is hereby Granted Denied , to which ruling Defense duly excepts and

respectfully requests hereby that the Court file written findings its of fact and conclusions of law.

PRESIDING IUDGE

15'

and 273“ Judicial Districts

APPENDIX “B”

IN THE DISTRICT COURT OF SAN AUGUSTINE COUNTY STATE OF TEXAS

THE STATE OF TEXAS §

VS. § CAUSE NO. CR-13-8411

ROBERT EUGENE PRITCHETT Incident State No./TRN: 915386994X ID No.: 04876899 § ,q/ 5 5['L""‘C

1 "20

JEAH STE.’-‘TOE D-fgjrjci ~~

A

rk

JUDGMENT OF CONVICTION BY COURT; :9” f~UG“d§“tr§:, T

COMMUNITY SUPERVISION 5

Judge Presiding: Charles R. Mitchell Date of Judgment: September 10. 2014 Attorney for Attorney for the State: J. Kevin Dutton Defendant: Donovan Dudinsky Offense convicted of: Possession of Controlled Substance Drug Free Zone 8481.115 481.134 HSC Degree: Third Date of Offense: November 24. 2011 Applicable punishment range (including enhancements, if any): 2 years to 10 years TDCJ ID Charging Instrument: Indictment Plea: Not Guilty Jury Verdict: Guilty Terms of Plea Five (5) years confinement in the Texas Department of Criminal Justice Institutional Division Bargain: probated for five (5) years; a fine in the amount of $3000.00 not probated: restitution as stated below.

Verdict for Offense: Guilty Plea to Enhancement Finding on Finding on Paragraph(s): N/A Enhancement: N/A Deadly Weapon: N/A Finding of Finding of Family Violence: N/A Bias or Prejudice: N/A Date Sentence Court Imposed: September 10. 2014 Costs: $339.00 Punishment and Place Date to of Confinement: 5 years TDCJ ID Commence: September 10, 2014 probated for 5 years; Fine of $3000.00 Time Credited: Total amount of Restitution/Reparation: $140.00 Name & address for Restitution: DPS Lab Victim Impact Statement Returned:

On the 4m day of August, 2014, the above numbered and entitled cause was called for trial, and the State appeared by the attorney stated above, and the Defendant and the Defendm1t’s attorney, as stated above, were also present. Thereupon both sides armounced ready for trial. A jury of twelve persons was duly selected, impaneled and sworn. The Defendant entered the above plea to the charging instrument afier reading thereof. Having heard the indictment read, and the defendant’s plea of not guilty thereto, the case proceeded to trial before the jury and after conclusion of the case and the jury having all the evidence submitted, the jury was duly charged by the Court and the Jury retired in charge of the proper officer to consider their verdict. The Jury after having reached a verdict in the guilt and innocence stage was brought into open Court by the proper officer in the presence of the defendant and his counsel. The Jury in open Court and in due form announced that it had reached a verdict, which verdict was received by the Court and pronounced in open Court and entered into the minutes of the Court as follows, to-wit:

“VERDICT FORM #1

WE, the Jury, find the Defendant, ROBERT EUGENE PRITCHETT, guilty of the offense of possession of a controlled substance, as charged in the indictment.

/s/ Rickey Smith Presiding Juror”

And thereupon, the Defendant elected to have his punishment assessed by the Court.

And thereupon the Court ordered a pre-sentence investigation to be done.

It is therefore ORDERED, ADJ UDGED and DECREED by the Court that the defendant is guilty of the offense stated above, that there is an affirmative finding of a drug free zone, and that punishment has been sent by confinement in the Texas Department of Criminal Justice Institutional Division for five (5) years. It is, therefore, ORDERED by the Court that the imposition of the sentence in this case is hereby suspended. The Defendant is placed on community supervision for five (5) years, subject to the conditions of supervision imposed by the Court in an order that is hereby incorporated into this judgment.

It is therefore ORDERED, ADJUDGED and DECREED by the Court that the defendant is guilty of the offense of possession of a controlled substance drug free zone and that punishment be fixed and assessed as set forth above, and the State of Texas recover of said Defendant all court costs in this prosecution expended, for which execution will issue.

Furthermore, the following special findings or orders apply: none.

/A/z// Jddge Presiding

Date Signed: 74 /( Z V/ff S‘

Defendant’s right thumbprint:

APPENDIX “C”

CAUSE N0. CR-8411

THE STATE OF TEXAS § IN THE 273“ JUDICIAL DISTRICT §

VS. § COURT OF §

ROBERT EUGENE PRITCHETT § SAN AUGUSTINE COUNTY, TEXAS TRIAL COURT’S CERTIFICATION OF DEFENDANT’S RIGHT OF APPEAL

L 1, Judge of the trial court, certify this criminal case:

is not a plea-bargain case, and the Defendant has the light of appeal; (or)

is a plea-bargain case, but matters were raised by written motion filed and ruled on before

trial and not withdrawn or waived, the Defendant has the right to appeal; (or)

is a plea-bargain case, but the trial court has given permission to appeal, and the Defendant

has the right to appeal; (or)

is a plea-bargain case, and the Defendant has NO right to appeal; (or)

is a deferred adjudication case, and the Defendant has a limited right to appeal; (or)

the Defendant has waived the right to appeal. -

E PRESID

f- /p r 2 o /«-r DATE SIGNED

I acknowledge that I have been informed of the above Certification court and by the Irial waive a receipt of a copy thereof.

DEFENDANT

~

J El LED ~ AS?/1»? bo'owcK:"'g_ M Q -/‘Q 29 /(

JEAN STEPTOE Dlsiict lerk SAN AU ,1 ,TEXAS av ..___/ /

APPENDIX “D”

CAUSE NO. CR-8411

THE STATE or TEXAS § IN THE 273“ JUDICIAL DISTRICT

vs. § COURT or ROBERT EUGENE PRITCHETI‘ 45 SAN AUGUSTINE COUNTY, TEXAS WRITTEN NOTICE or APPEAL

TO THE HONORABLE JUDGE or SAID COURT:

Now Comes Robert Eugene Pritchett, Appellant in the above styled and numbered cause, on this 7"‘ day of October, 2014, and Appellant timely files this his written notice of appeal with

said Court. Appellants’s sentence and fine was imposed on the 10"‘ day of September, 2014.

Appellant files this his written notice of appeal within thirty (30) days of sentence being

imposed and pursuant to Vemon’s Ann. Rules App. Proc. Rule 26.2 (a)(1) and Appellant files

this his written notice of appeal based upon Appellant having been convicted by jury of

Possession of a Controlled Substance in a Drug Free Zone and Appellant was sentenced to serve

five (5) years regular probation and assessed a fine amount of Three Thousand Dollars -

12"‘ Court of Appeals the trial couIt’s judgment in ($3,000.00). Appellant desires to appeal to the

this criminal conviction litigation.

WHEREFORE PREMISES CONSIDERED, Appellant respectfully requests that Appe1lant’s Written Notice of Appeal be entered of record on this date.

Entered by Appellant’s Attorney on thisl"'_day of October, 2014.

Respectfully submitted,

3

onovan aul Dudinsky

;,7[%‘

:'3Bo'3Loc-( _m.q TSBN: 24038869 / Attorney for Appellant,

:F_j__ IAN STE!-":'OE

2’)

.

Céstnct rk Robert Eugene pl-itchett ass‘! IUSUSTJQEC

fig

CER HHCAIE OF SERVICE

Hereby certified that a true and correct file—stamped copy of the original document having

been filed and thereby become dully recorded has heen personally served by hand on this day of

October 7, 2014, to the oflice of the District Attorney located in the 273'“ Judicial District

Courthouse of San Augustine County, Texas, San Augustine, Texas 75972.

Donovan §aul guééigky J,/3

APPENDIX “E”