ACCEPTED 01-15-00512-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 9/30/2015 6:40:18 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00512-CR ____________________ FILED IN 1st COURT OF APPEALS IN THE HOUSTON, TEXAS 9/30/2015 6:40:18 PM COURT OF APPEALS CHRISTOPHER A. PRINE Clerk FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON ___________________________
TAYLOR MARTIN KORB, Appellant
v.
STATE OF TEXAS, Appellee ______________________
On Appeal from Cause No. 1980492 County Criminal Court at Law Number Three (3) Harris County, Texas Hon. Natalie Fleming, Presiding _____________________________
BRIEF OF APPELLANT TAYLOR MARTIN KORB _____________________________
DAN KRIEGER 215 East Galveston Street League City, Texas 77573 (281) 332-7630 Phone (281) 332-7877 Facsimile dan@kriegerlawfirm.com ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Appellant/Defendant: Taylor Martin Korb
Trial Counsel for Appellant: Dan Krieger State Bar No. 24064243 Christopher Morton State Bar No. 24037145 215 E. Galveston St. League City, Texas 77573 (281) 332-7630 (Telephone) (281) 332-7877 (Facsimile) dan@kriegerlawfirm.com
Appellate Counsel for Dan Krieger Appellant: State Bar No. 24064243 215 East Galveston Street League City, Texas 77573 (281) 332-7630 (Telephone) (281) 332-7877 (Facsimile) dan@kriegerlawfirm.com
Appellee: State of Texas
Trial Counsel for Napoleon Wilson Stewart, II Appellee: State Bar No. 24086894 Molly Katharine Wurzer State Bar No. 24082073 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: (713) 755-5800
Appellate Counsel Alan Curry for Appellee: State Bar No. 05263700 1201 Franklin Street Houston, Texas 77002 Telephone: (713) 755-5826
Trial Judge: Honorable Natalie Fleming ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................ ii
TABLE OF CONTENTS ............................................................................................. iii
INDEX OF AUTHORITIES ........................................................................................ v
STATEMENT OF THE CASE .................................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT .................................................. 2
ISSUE PRESENTED FOR REVIEW ......................................................................... 3
STATEMENT OF FACTS .......................................................................................... 4
SUMMARY OF THE ARGUMENT .......................................................................... 7
ARGUMENT AND AUTHORITIES .......................................................................... 8
ISSUE 1: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE OFFICER’S STOP OF THE APPELLANT AS THERE WERE NO ARTICULABLE FACTS TO ESTABLISH REASONABLE SUSPICION FOR THE STOP OF THE APPELLANT...................................................................... 8
A. STANDARD OF REVIEW ............................................................................ 8
B. THE REPORT OF A PERSON DRIVING BY A RESIDENCE, WITHOUT EVIDENCE OF OTHER ILLEGAL ACTIVITY IS INSUFFICIENT TO JUSTIFY AN INVESTIGATIVE DETENTION ................. 9
C. THE COURT OF CRIMINAL APPEALS IN CRAIN V. STATE ESTABLISHED THE FACTORS RELIED UPON BY THE OFFICER IN THIS CASE WERE INSUFFICIENT TO CONSTITUTE REASONABLE SUSPICION ................................................................ 10
D. THE FACTS OF THIS CASE ARE DISTINGUISHABLE FROM OTHER CASES WHERE REASONABLE SUSPICION WAS FOUND FOR AN INVESTIGATIVE DETENTION. .............................................. 11
iii PRAYER ...................................................................................................................... 13
CERTIFICATE OF SERVICE .................................................................................... 15 CERTIFICATE OF COMPLIANCE ........................................................................... 15 APPENDIX .................................................................................................................. A
iv INDEX OF AUTHORITIES FEDERAL AND STATE COURT CASES
Amador v. State, 275 S.W.3d 872 (Tex.Crim.App.2009) ......................................................... 8
Brown v. Texas, 443 U.S. 47 (1979)............................................................................................................................... 9
Crain v. State, 315 S.W.3d 43 (Tex.Crim.App. 2010) .................................................... 9-11
Derichsweiler v. State, 348 S.W.3d 906 (Tex.Crim.App. 2011).................................................. 12
Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005) ................................................. 8
Taflinger v. State, 414 S.W.3d 881 (Tex.App.–Houston [1st Dist.] 2013, no pet.) .............11,12
Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................... 9, 10
United States v. Sokolow, 490 U.S. 1 (1989) ................................................................................... 9
Wiede v. State, 214 S.W.3d 17 (Tex.Crim.App. 2007) ........................................................ 8
Woods v. State, 956 S.W.2d 33 (Tex.Crim.App.1997) .................................................... 10
v STATEMENT OF THE CASE
Mr. Taylor Martin Korb (“Appellant”) was charged with Driving While
Intoxicated, a class B misdemeanor. (C.R. at 5). Appellant filed a motion to suppress
the traffic stop on March 13, 2015. (C.R. at 23-24). The trial court heard Appellant’s
motion to suppress on April 28, 2015 and denied the motion to suppress the traffic
stop. (III R.R. at 42). A jury trial commenced immediately after the suppression
hearing and on the same date. (C.R. at 27-32). Defendant was convicted of Driving
While Intoxicated on April 29, 2015 and sentenced by the Court to one hundred
eighty days in the Harris County Jail, probated for twelve months and a $500 fine.
(C.R. at 41-42).
1 STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 39.7 of the Texas Rules of Appellant Procedure, Appellant
Taylor Martin Korb requests that this Court hear oral argument of this appeal.
Appellant believes that oral argument would significantly aid this Court in
determining the application of the facts in this matter to the legal issues presented
herein. This appeal presents important legal issues concerning a police officer’s
reasonable suspicion for an investigative detention.
2 ISSUE PRESENTED FOR REVIEW
Issue 1: The trial court erred in failing to suppress the officer’s stop of the
Appellant as there were no articulable facts to establish reasonable suspicion for the
stop of the Appellant.
3 STATEMENT OF FACTS
At the motion to suppress hearing, held prior to trial, the State stipulated this
was a warrantless arrest case. (III R.R. at 4).
On August 28, 2014, at approximately midnight, Officer Galvan of the
Pasadena Police Department was on-duty, working patrol, and was sent to a
residential neighborhood in Pasadena, Texas. (III R.R. at 5-6). Officer Galvan
testified that he was called for a light-colored, small truck driving in the area. (III
R.R. at 12). Officer Galvan stated he was familiar with the neighborhood and
criminal mischief and burglaries occur there. (III R.R. at 9). No evidence was
presented regarding the officer’s familiarity with these crimes with respect to the
area. Officer Galvan testified that at the time of this call no criminal activity was
reported and no illegal activity was reported. (III R.R. at 22, 27).
Officer Galvan testified that approximately one minute later he arrived in the
area and saw the Appellant driving a light colored truck and using a cellular phone.
(III R.R. at 13-14). Officer Galvan reported that the caller was identified by name
and phone number. (III R.R. at 13). Officer Galvan also testified that caller reported
he had seen the vehicle three times over a period of ten minutes. (III R.R. at 22).
The caller was not presented as a witness at the suppression hearing or at trial.
Officer Galvan testified there was “no good reason for anyone to just drive
around multiple times” and that he “wanted to gather more information on the 4 vehicle onto why he was driving around the area so many times.” (III R.R. at 25,
30). He further testified the truck solely driving around would cause alarm. (III
R.R. at 23). Officer Galvan testified that [a person] raise[s] suspicion by driving in
the area multiple times. (III R.R. at 28). When asked about the raised suspicion,
Officer Galvan indicated that the activity raised suspicion of “suspicious activity”
and “possibly casing homes, and possibly looking to burglarize.” (III R.R. at 28).
Officer Galvan also testified that by simply observing a person driving
around, he would not have reasonable suspicion to believe a person had committed
a crime or that a person was going to commit a crime. (III R.R. at 29). Officer Galvan
stated he would need more articulable facts to determine if some crime was going to
happen. (III R.R. at 23-24).
Officer Galvan testified that prior to the stop he observed the Appellant to
make a complete stop at a stop sign. (III R.R. at 27). He testified that Appellant
properly signaled his turn and turned properly. (III R.R. at 27). Officer Galvan
further testified that he did not observe anything that would lead him to believe that
Appellant was intoxicated at the time of stopping the vehicle. (III R.R. at 27).
Officer Galvan confirmed that the sole reason for his stopping the vehicle was
because of the call. (III R.R. at 27).
Officer Galvan testified he did not have enough information to have a
reasonable suspicion, solely based on Appellant driving around, that Appellant had 5 committed a crime or was going to commit a crime. (III R.R. at 29). On further
questioning, Officer Galvan was asked if he believed that if someone calls 911 and
reports a suspicious vehicle that he had the right to stop the vehicle. (III R.R. at 31).
Officer Galvan responded that “we check all calls and the vehicles in the area or
persons that are called in.” (III R.R. at 31). When asked if Appellant’s counsel
called 911 and simply said there is a suspicious vehicle driving in front of his house,
if Officer Galvan would stop that vehicle -- Officer Galvan’s response was, “Yes.”
(III R.R. at 31).
No other witnesses were presented. At the close of the suppression hearing,
the trial court denied the Appellant’s motion to suppress. (III R.R. at 42).
6 SUMMARY OF THE ARGUMENT
The arresting officer in this matter testified that he did not observe any illegal
activity and that he would need further articulable facts other than a person driving
around to have reasonable suspicion to stop the Appellant. No evidence of any type
of illegal activity was presented as the basis for the call to the police or the stop of
the Appellant. A caller reporting a vehicle driving by a residence, without other
evidence of criminal activity, does not provide reasonable suspicion to justify an
investigative detention. There were no specific articulable facts that would justify an
investigative detention in this matter.
7 ARGUMENT AND AUTHORITIES
I. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE OFFICER’S STOP OF THE APPELLANT AS THERE WERE NO ARTICULABLE FACTS TO ESTABLISH REASONABLE SUSPICION FOR THE STOP OF THE APPELLANT.
A. STANDARD OF REVIEW
A trial court's ruling on a motion to suppress is reviewed under a bifurcated
standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). The
trial judge is the sole trier of fact and judge of the weight and credibility of the
evidence and testimony. Wiede v. State, 214 S.W.3d 17, 24–25
(Tex.Crim.App.2007). The trial court’s application of the law to the facts is
reviewed de novo. Ford, 158 S.W.3d at 493.
To suppress evidence on an alleged Fourth Amendment violation, the
defendant bears the initial burden of producing evidence that rebuts the presumption
of proper police conduct. Ford, 158 S.W.3d at 492. A defendant satisfies this burden
when, as here, he establishes “that a search or seizure occurred without a warrant.
Id. If this showing is made, then the burden shifts to the State....” Amador v. State,
275 S.W.3d 872, 878 (Tex.Crim.App.2009). The State's burden is “to establish that
the search or seizure ... was reasonable. Ford, 158 S.W.3d at 492. In the instant case,
the State stipulates this was a warrantless arrest. (III R.R. at 4).
8 B. THE REPORT OF A PERSON DRIVING BY A RESIDENCE, WITHOUT OTHER EVIDENCE OF ILLEGAL ACTIVITY, IS INSUFFICIENT TO JUSTIFY AN INVESTIGATIVE DETENTION.
It is well-established that under the Fourth Amendment, a warrantless
detention of the person that amounts to less than a full-blown custodial arrest must
be justified by a reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 21–22 (1968); see
also, United States v. Sokolow, 490 U.S. 1, 7 (1989) (“police can stop and briefly
detain a person for investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity may be afoot, even if the officer
lacks probable cause.”) (internal quotation marks omitted); Brown v. Texas, 443
U.S. 47, 51 (1979).
A police officer has reasonable suspicion to detain a person if he has specific,
articulable facts that, combined with rational inferences from those facts, would lead
him reasonably to conclude that the person detained is, has been, or soon will be
engaged in criminal activity. United States v. Sokolow, 490 U.S. 1, 7 (1989) ; Crain
v. State, 315 S.W.3d 43, 52 (Tex.Crim.App. 2010); Terry v. Ohio, 392 U.S. at 21–
22 (“the police officer must be able to point to specific and articulable facts which,
if taken together with rational inferences from those facts, reasonably warrant” an
investigative detention, and “it is imperative that the facts be judged against an
objective standard: would the facts available to the officer at the moment of the
9 seizure ... warrant a man of reasonable caution in the belief that the action taken was
appropriate”).
This standard is an objective one that disregards the actual subjective intent
of the arresting officer and looks, instead, to whether there was an objectively
justifiable basis for the detention. Terry, 392 U.S. at 21–22. It also looks to the
totality of the circumstances; the relevant inquiry is not whether particular conduct
is innocent or criminal, but the degree of suspicion that attaches to particular non-
criminal acts. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). Here, the
facts presented by the State do not meet an objective standard that would justify an
investigative detention.
C. THE COURT OF CRIMINAL APPEALS IN CRAIN V. STATE ESTABLISHED THE FACTORS RELIED UPON BY THE OFFICER IN THIS CASE WERE INSUFFICIENT TO CONSTITUTE REASONABLE SUSPICION.
In Crain, the Appellant was walking late at night in a residential area in which
burglaries occurred mostly after midnight. Crain v. State, 315 S.W.3d 43, 53
(Tex.Crim.App. 2010). When Crain saw the police officer's vehicle drive past him,
he “grabbed at his waist.” Id. As in this case, the officer acknowledged that he did
not have a reason to arrest Crain at that time. Also similar to this case, there was no
evidence regarding a specific crime or burglary had occurred or that Crain was
engaged in illegal behavior. The Court of Criminal Appeals held that “[n]either time
10 of day nor level of criminal activity in an area are suspicious in and of themselves;
the two are merely factors to be considered in making a determination of reasonable
suspicion.” Id. The court further held that those factors did not constitute reasonable
suspicion. Id.
In the instant case, there was nothing in the surroundings of this matter that
Appellant was engaged in suspicious or illegal activity and there is no other indicia
of reasonable suspicion on the record -- the caller reported activity, not criminal
activity. There is nothing inherently or objectively suspicious about a vehicle
driving on a residential street three times over the course of ten minutes. This
proposition is further supported by Officer Galvan’s acknowledgment and testimony
that he would need further articulable facts to determine if a crime was going to be
committed. (III R.R. at 29). Here, there were no such facts presented to the trial
court. The Appellant did not drive erratically, he did not look into vehicles, he did
not pull into residential driveways and leave – he simply drove by. (III R.R. at 27).
D. THE FACTS OF THIS CASE ARE DISTINGUISHABLE FROM OTHER CASES WHERE REASONABLE SUSPICION WAS FOUND FOR AN INVESTIGATIVE DETENTION.
This case is fundamentally and factually distinguishable from this Court’s
holding in Taflinger v. State. In Taflinger, there was a specific report of
wrongdoing – a store clerk, well-known to the officer, observed an intoxicated
person driving away from the store. Taflinger v. State, 414 S.W.3d 881, 884 11 (Tex.App.–Houston [1st Dist.] 2013, no pet.). The officer observed the driver
driving immediately after the report and believed in good faith that he observed the
driver commit a traffic violation. Id. at 886. Here, in contrast, there was no report
of intoxication, erratic driving, or other wrongdoing – simply driving. Furthermore,
the caller in this case did not follow the vehicle, describe any specific wrongdoing,
did not provide an actual color of the vehicle, and was not known by the officer to
the extent of the clerk in Taflinger. Id.
This case is further distinguishable from Derichsweiler v. State. In
Derichsweiler, the Appellant pulled up in his vehicle next to the Holder family who
were in another vehicle at a McDonald’s drive-thru. Derichsweiler v. State, 348
S.W.3d 906, 909 (Tex.Crim.App.2011). He stared at them and was inexplicably
grinning directly at them. Id. Appellant then drove away and repositioned his car
to a place where he was directly facing them and was again staring and grinning at
them. Id. The Appellant drove away yet another time and then suddenly reappeared
from behind the Holden family’s vehicle. Id. He pulled to the left side of the
Holden’s car, not quite blocking it in. Id. He again began staring and grinning at
them. Id. At the Appellant’s motion to suppress, the Holden’s specifically testified
that they felt threatened and intimidated by this conduct. Id. They further felt that
they were being “sized up” or “stalked.” Id. They then also observed the Appellant
to engage in the same or similar conduct in an adjoining Walmart parking lot. Id. at 12 910. They reported the activity to the police and stood by at the scene continuously
reporting the Appellant’s actions to the police and providing them with the make,
model, color, and license plate of the Appellant’s vehicle. Id.
In contrast, there was no “bizarre” behavior here as it was characterized by
the Court of Criminal Appeals in Derichsweiler. Id. at 917. In the instant matter,
there was no description of any specific action, other than ordinary driving,
described or reported to the police. There was no action committed by the Appellant
against the caller, which was also specifically noted as a factor in the Derichsweiler
holding. Id. The arresting officer in this matter made conclusory statements that
Appellant’s actions were suspicious, but there were no specific articulable facts that
reasonably support these claims. Additionally, there were no specific descriptions of
the vehicle, driver, or license plate of the vehicle that would affirmatively link the
vehicle Appellant was driving to the vehicle described by alleged caller.
PRAYER
A citizen merely calling the police to report innocuous activity should not and
does not give rise to reasonable suspicion in this matter. There were no exigent
circumstances present that would have prevented the arresting officer from
investigating further to see if there was any type of criminal activity involved in the
citizen’s report. The contours of reasonable suspicion have evolved considerably
since the landmark decision in Terry, but have not extended to the point where 13 simply operating a vehicle constitutes a valid reason for an investigative detention.
For the reasons stated in this brief, Appellant, Taylor Martin Korb, respectfully
requests this Court reverse the trial court and remand the case
Respectfully submitted, LAW OFFICE OF DAN KRIEGER 215 E. Galveston St. League City, Texas 77573 (281) 332-7630 Tel. (281) 332-7877 Fax dan@kriegerlawfirm.com
By: /s/ Dan Krieger Dan Krieger State Bar No. 24064243 Attorney for Appellant
14 CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word and contains {2number} words, as determined by the computer software's
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).
/s/ Dan Krieger Dan Krieger
CERTIFICATE OF SERVICE
A true and correct copy of the above and foregoing document has been
forwarded to the following persons, in accordance with the TEXAS RULES OF
APPELLATE PROCEDURE, on the 30th day of September, 2015:
Alan Curry Harris County District Attorney’s Office 1201 Franklin Street Houston, Texas 77002
15 NO. 01-15-00512-CR ____________________
IN THE
COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
On Appeal from Cause No. 1980492 County Criminal Court at Law Number Three (3) Harris County, Texas Hon. Natalie Fleming, Presiding _____________________________
APPELLANT’S APPENDIX _____________________________
LIST OF DOCUMENTS
1. Defendant’s Motion to Suppress (CR 23-24) ...............................................TAB 1 2. Jury Instructions and Verdict (CR 33-37) .....................................................TAB 2 3. Trial Court’s Judgment (CR 41) ......................................................................TAB 3
A TAB 1
B C TAB 2
D E F G H TAB 3
I J