State v. Ruben Rodriguez

• Court: Court of Appeals of Texas
• Decided: March 16, 2017
• Docket: 04-16-00658-CR
• Status: Published

Opinion

ACCEPTED 04-16-00658-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/16/2017 10:51:26 AM KEITH HOTTLE CLERK

NOS. 04-16-00658-CR & 04-16-00659-CR

IN THE COURT OF APPEALS FOR THE FILED IN 4th COURT OF APPEALS FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 03/16/2017 10:51:26 AM ______________________________ KEITH E. HOTTLE Clerk THE STATE OF TEXAS, Appellant

v.

RUBEN RODRIGUEZ, Appellee ______________________________

ON APPEAL FROM THE 399th JUDICIAL DISTRICT COURT BEXAR COUNTY, TEXAS CAUSE NOS. 2015-CR10288 & 2015-CR-10289 ______________________________

REPLY BRIEF FOR THE STATE ______________________________

NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas

LAURA E. DURBIN Assistant Criminal District Attorney Bexar County, Texas Paul Elizondo Tower 101 W. Nueva Street San Antonio, Texas 78205 Phone: (210) 335-2411 – Laura.Durbin@bexar.org Attorneys for the State of Texas State Bar No. 24068556

ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................ iii

STATE’S REPLY ...........................................................................................................1

The officer’s subjective intent is irrelevant .....................................................1

The record supports the officer’s reasonable suspicion .................................2

PRAYER FOR RELIEF ....................................................................................................4

CERTIFICATE OF COMPLIANCE ....................................................................................5

CERTIFICATE OF SERVICE ............................................................................................5

ii TABLE OF AUTHORITIES

Cases

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) ...............................................................1 Jaganathan v. State, 479 S.W.3d 244 (Tex. Crim. App. 2015) ..............................................................3 Statutes

TEX. TRANS. CODE ANN. §551.103 ............................................................................2 TEX. TRANS. CODE ANN. §552.006 ............................................................................2 Rules

TEX. R. APP. P. 9.4 .....................................................................................................5 TEX. R. APP. P. 38.3 ...................................................................................................1

iii TO THE HONORABLE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS:

Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar

County, Texas, and files this reply brief for the State pursuant to Texas Rules of

Appellate Procedure 38.3.

STATE’S REPLY

The officer’s subjective intent is irrelevant

An officer executes a lawful temporary detention when he has reasonable

suspicion. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The test

for reasonable suspicion is an objective one based solely on whether there is an

objective basis for the detention. The officer’s subjective intent is not relevant.

The officer viewed Rodriguez walking with is bike against oncoming traffic. Two

transportation statutes control this conduct:

Sec. 551.103. OPERATION ON ROADWAY. (a) Except as provided by Subsection (b), a person operating a bicycle on a roadway who is moving slower than the other traffic on the roadway shall ride as near as practicable to the right curb or edge of the roadway, unless:

(1) the person is passing another vehicle moving in the same direction;

(2) the person is preparing to turn left at an intersection or onto a private road or driveway;

(3) a condition on or of the roadway, including a fixed or moving object, parked or moving vehicle, pedestrian, animal, or surface hazard prevents the person from safely riding next to the right curb or edge of the roadway; or

1 (4) the person is operating a bicycle in an outside lane that is: (A) less than 14 feet in width and does not have a designated bicycle lane adjacent to that lane; or (B) too narrow for a bicycle and a motor vehicle to safely travel side by side.

TEX. TRANS. CODE ANN. §551.103

Sec. 552.006. USE OF SIDEWALK. (a) A pedestrian may not walk along and on a roadway if an adjacent sidewalk is provided and is accessible to the pedestrian.

TEX. TRANS. CODE ANN. §552.006

The record supports the officer’s reasonable suspicion

Rodriguez argues the officer changed his reasoning to detain multiple times

during the motion to suppress.1 Under the reasonable suspicion standard as

discussed, the officer’s subjective reasoning for the detention is not a factor.

Rather, the court considers the objective basis for the detention. The record

established Rodriguez was walking and pushing his bicycle in the street against

traffic. There was an adjacent sidewalk.

First, under Section 551.103, if Rodriguez were in fact operating a bicycle,

he was not as near at practicable to the curb. Second, if Rodriguez was a

1 The State agrees with Rodriguez that during the suppression hearing, Officer Irving’s reasoning for the stop changed; however, as mentioned, his reasoning is not relevant to whether or not the record reflects the officer possessed reasonable suspicion to detain Rodriguez. Officer Irving first testified that he stopped Rodriguez because he was a pedestrian in the roadway. (RR 8). On cross-examination, Rodriguez questioned Officer Irving about the San Antonio municipal code provision which disallows bicycles on sidewalks. (RR 15-16). On re-direct, Officer Irving testified the two were in violation of Transportation Code Section 551.103. (RR 18).

2 pedestrian, under Section 552.006 of the Transportation, Rodriguez was not

walking along the adjacent sidewalk. The court’s determination that Rodriguez’s

actions were “more correct” was not proper. The State does not dispute

Rodriguez may have had justification for his conduct. However, the question

before the trial court was whether the officer had reasonable suspicion to detain

Rodriguez for a traffic violation, not whether Rodriguez was guilty of a traffic

violation. See Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015)

(holding potential justifications for appellant’s failure to move immediately from

left lane did not negate the reasonable suspicion that an offense occurred).

“There mere possibility that an act is justified will not negate reasonable

suspicion.” Rodriguez was walking with his bike against traffic. The officer had

reasonable suspicion to detain Rodriguez for a violation under 551.103 or

552.006.

3 PRAYER FOR RELIEF

The State prays that this Court will reverse the trial court’s ruling.

Respectfully submitted, NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas

/s/ Laura E. Durbin ______________________________ LAURA E. DURBIN Assistant Criminal District Attorney Bexar County, Texas 101 West Nueva, 3rd Floor San Antonio, Texas 78204 (210) 335-2418 Laura.Durbin@bexar.org State Bar No. 24068556 (On Appeal)

Attorneys for the State

4 CERTIFICATE OF COMPLIANCE

I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure

that this document contains 613 words.

/s/ Laura E. Durbin _____________________________ LAURA E. DURBIN

CERTIFICATE OF SERVICE

I, Laura Durbin, Assistant Criminal District Attorney, hereby certify that a

true and correct copy of the above and foregoing reply brief was served electronic

service to Oscar Cantu, Counsel for Ruben Rodriguez, on the 16th day of March,

2017.

/s/ Laura E. Durbin _____________________________ LAURA E. DURBIN