                                                                           ACCEPTED
                                                                       03-15-00098-CR
                                                                               5452804
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  5/28/2015 1:40:37 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                   No. 03-15-00098-CR

                IN THE COURT OF APPEALS                FILED IN
                                                3rd COURT OF APPEALS
           FOR THE THIRD JUDICIAL DISTRICT OF       AUSTIN, TEXAS
                 TEXAS AT AUSTIN, TEXAS         5/28/2015 1:40:37 PM
                                                  JEFFREY D. KYLE
                                                        Clerk
                        ********

    BRIAN VINCENT ROBINSON
                          vs.

         THE STATE OF TEXAS
                        ********

         ON APPEAL FROM THE 27th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 70532

                         ******
                 STATE'S BRIEF
                         ******

                        HENRY GARZA
                        DISTRICT ATTORNEY

                        BOB D. ODOM
                        ASSISTANT DISTRICT ATTORNEY
                        P.O. Box 540
                        Belton, Tx 7 6513
                        (254) 933-5215
                        FAX (254) 933-5704
                        DistrictAttorney@co.bell.tx.us
                        SBA No. 15200000


Oral Argument Not Requested

                            1
                                               TABLE OF CONTENTS

ITEM                                                                                                                                                PAGE

Index of Authorities ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ... ... ... ... ... ... ... ... ... ...                           3

Statement Regarding Oral Argument .... .. .. .... ...... .. .. .. .... .. .. .. .. .. .. .. .... ....                                                 5

Statement of the Case ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...                             5

Statement of Facts ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ......                          5

Summary of State's Argument.............................................................                                                              7

Argument and Authorities .. .. .. .. .. .. .. .. .. .. .... ...... .... .. .. .. .. ...... .. .. .. .. .. .. .. .....                                 8

             Issue on Appeal .. . .. ... . ... ... ... .. . ... ... .. . .. .... ... .. . .. . .. . .. . ...... .. . .. . .. . .. . .. ....           8
                   TRIAL COURT ABUSE DISCRETION DENYING
                   MOTION TO SUPPRESS BASED UPON TRAFFIC
                   STOP UNDER SECTION 545.104(b),
                   TRANSPORTATION CODE?

             Standard of Review ... .. . .. . .. ... .... .. . .. .... .. . .. ... . ... ... .. . .. ... . ... ... .. .... .....                      8

             Application and Analysis ...... ...... ...... ...... ...... ...... ...... ...... ...... ......                                           9

Prayer....................................................................................................                                           15

Certificate of Compliance with Rule 9 .................................................                                                              15

Certificate of Service ............................................................................                                                   16

Appendix ... ... .. . ... ... .. . .. . ... ... ... .. . .. . .. . .. .... .. .... .. . .. . .. . .. .... .. ... . .. .... .. ... . .. . .. .....     17
     State v. Kidd, No. 03-09-00620-CR, 2010 Tex. App.
     LEXIS 10341 (Tx. App. Austin 3rd Dist. 2010 no pet),
     Not designated for publication.




                                                                               2
                           INDEX OF AUTHORITIES
CASES                                                                                           PAGE

Boykin v. State, 818 S.W.2d 782 ...........................................................      12
      (Tx. Cr. App. 1991)

Carmouche v. State, 10 S.W.3d 323 .....................................................           8
     (Tx. Cr. App. 2000)

Estrada v. State, 154 S.W.3d 604 .........................................................        8
      (Tx. Cr. App. 2005)

Hargrove v. State, 40 S.W.3d 556 .........................................................       11
     (Tx. App. Houston 14th Dist. 2001 rev. ref.)

Krug v. State, 86 S.W.3d 764 ................................................................    14
      (Tx. App. El Paso 8th Dist. 2002 rev. ref.)

Perez v. State, No. 03-98-00465-CR, 1999 Tex. App. ..........................                    13
      LEXIS 5533 (Tx. App. Austin 3rct Dist. 1999 no pet.),
      not designated for publication

State v. Elias, 339 S.W.3d 667 ..............................................................    14
       (Tx. Cr. App. 2011)

State v. Kidd No. 03-09-00620-CR, 2010 Tex. App. LEXIS ............... 10, 17
       10341 (Tx. App. Austin 3rct Dist. 2010 no pet.), not
       Designated for publication

Walter v. State, 28 S.W.3d 538 .............................................................     13
     (Tx. Cr. App. 2000)

Weightman v. State, 975 S.W.2d 621 ...................................................           11
     (Tx. Cr. App. 1998)

Williams v. State, No. 05-02-00314-CR, 2002 Tex. App. LEXIS .........                            12
      8077 (Tx. App. Dallas 5th Dist. 2002 rev. ref.), not
      designated for publication



                                                  3
OTHER

Texas Transportation Code

     Section 521.457 ..........................................................................   9

     Section 545.104 ............................................................ 8, 11, 13-14

     Section 545.104(b) ......................................................... 7, 9-11, 14




                                                 4
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Brian Vincent Robinson, was charged by

indictment with the state jail felony offense of possession of a controlled

substance, to-wit: Cocaine in an amount of less than one gram. (CR-4).

      He filed a motion to suppress the evidence obtained as a result of

the search of his person incident to arrest which gave rise to this

offense. (CR-17). That motion was heard before Judge John Gauntt in

the 27th Judicial District Court of Bell County, Texas and was denied.

(RR2-19).

      The Appellant was tried before a jury in that court and found

guilty. (CR-31, 34). His punishment was assessed by the trial court at 2

years in state jail. (CR-34; RR7 -17, 18).

      The Appellant gave timely notice of appeal (CR-40) and the trial

court certified his right to do so. (CR-33).

STATEMENT OF FACTS

      The Appellant's sole issue on appeal pertains to the trial court's

ruling on his motion to suppress.            During that hearing Sgt. Tyler


                                      5
McEowen of the Killeen Police Department testified that he was working

in uniform and in a marked police patrol unit on September 25, 2012

when he was advised by Detective Mallow of the Organized Crime Unit

that he had been watching a particular automobile in connection with

information that it had been used in narcotics trafficking. (RR2-7).

Mallow suggested that it be stopped if McEowen observed the

commission of a traffic violation. (RR2-7, 15).       Sgt. McEowen also

learned from the police dispatcher that the vehicle had temporary

license tag on it that had expired. (RR2-8).

       McEowen subsequently located the vehicle in the downtown

Killeen area and, after following it, observed that the driver failed to

signal a turn within 100 feet of the intersection. (RR2-8). The driver

would pull completely up to the stop sign and only then signal the turn.

This occurred on two occasions. (RR2-15).

       The officer initiated a traffic stop and identified the Appellant as

the driver. (RR2-10). The Appellant stated that he did not have a valid

driver's license in his possession. (RR2-10). Sgt. McEowen checked and

learned that the Appellant's driver's license had been suspended. (RR2-

11).




                                     6
      The officer arrested the Appellant for driving without a valid

driver's license. (RR2-12). Incident to that arrest the officer searched

the Appellant and found a small baggie containing a white powdery

substance he believed, based upon his training and experience to be

cocaine. 1

      At the conclusion of the hearing the trial court entered findings

into the record. Those findings were that: (1) the defendant's vehicle

was stopped pursuant to traffic violation; and (2) the search of the

defendant's person was incident to a lawful arrest for driving while

license suspended. The motion to suppress was denied. (RR2-19).

SUMMARY OF STATE'S ARGUMENT

       Article 545.104(b), in clear and unambiguous language, requires

that a driver signal a turn continuously for not less than 100 feet prior

to that turn. It provides no exceptions. Failure to do is a traffic violation

allowing a police officer to stop the vehicle. The application of the

statute to every turn is reasonable and does not lead to absurd results.




1
 The Texas Department of Public Safety subsequently determined the baggie to contain
cocaine in the amount of 0.04 grams. See State' s Exhibit 4. (RR8). The stop and arrest
were recorded on video which was admitted into evidence at trial as State' s Exhibit 1.
(RR8).


                                          7
The lawful stop lead to the discovery that the Appellant was driving

while his license was suspended and he was arrested for that offense.

The Appellant was searched incident to that arrest and cocaine was

found on his person. The trial court did not abuse its discretion in

denying the Appellant's motion to suppress the results of that search.

ARGUMENT AND AUTHORITIES

Issue on Appeal

      Did the trial court abuse its discretion in denying the Appellant's

motion to suppress because it relied upon Section 545? 104 of the

Texas Transportation Code, allegedly leading to an absurd result?

Standard of Review

      A ruling of the trial court on a motion to suppress evidence is

reviewed for abuse of discretion and considered under a bifurcated standard

of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tx.Cr.App. 2000). The

appellate court reviews de novo the application of the law to the facts of the

case, however, it must also afford almost total deference to the trial court's

determination of the facts where that determination is dependent upon the

credibility and demeanor of the witnesses. The ruling must be upheld if it is

correct under any theory of applicable law. Estrada v. State, 154 S.W.3d



                                      8
604, 607 (Tx.Cr.App. 2005). There is an abuse of discretion when the ruling

is so clearly wrong as to be outside the zone of reasonable disagreement.

Application and Analysis

      The Appellant does not contest that he failed to signal his turn for

not less than 100 feet prior to that turn as required by Section

545.104(b) of the transportation code, thus committing a traffic offense

for which the officer could legally stop him. Nor does he contest the fact

that he was driving while his license was suspended and lawfully

arrested for that offense as provided in Section 521.45 7 of the

transportation code. He does not deny that the cocaine was recovered

from his person as a result of a search incident to that arrest.

       Instead, he relies entirely upon his contention that the

interpretation of Section 545.104(b) applying its requirements to every

turn leads to an absurd result and, therefore, the trial court should not

have relied upon that violation to justify the stop leading to his arrest.

      Without any citation to authority, the Appellant opines that a

literal reading of 545.104(b) "will not work in every situation". He

complains that what he sees as possible exceptions were not negated in

the evidence, while at the same time admitting that such exceptions are

not included in the statute. The Appellant argues that it is absurd to


                                      9
impose upon a driver the necessity of deciding whether or not to turn

"before he needs or wants", where it does not further safety, because it

compromises freedom of lawful movement upon the roadway.

(Appellant's Brief at pg. 11).

      In support of his argument he cites his own question to the officer

during the hearing on the motion to suppress as to whether or not he

can get to an intersection and suddenly say "Hey, there's a Whataburger,

I feel like turning". Absurdity is illustrated, he says, in Sgt. Eowen's

correct response that he can turn, but it would be a violation of the law.

Thus, he contends that he should be allowed to turn without signaling

when it is, in his own judgment, inconvenient to do so and not allowing

such actions is absurd.

      A very similar argument was raised before this court in State v.

Kidd, No. 03-09-00620-CR, 2010 Tex. App. LEXIS 10341 (Tx. App. Austin

3rct Dist. 2010, no pet.), not designated for publication. (See Appendix.)

In that case the sole issue was the lawfulness of a traffic stop for failure

to signal intent to turn not less than 100 feet under Section 545.104(b).

The defendant asserted that the requirement of the statute was

unreasonable because he was unfamiliar with the area and unsure of his

direction. He also said such a requirement was "foolishly oppressive in


                                     10
a free society".   The trial court agreed and granted the motion to

suppress.

      This court, however, reversed the judgment of the trial court. It

began its analysis with the plain language of the statute and noted that

the language of Section 545.104(b) clearly and unambiguously requires

a driver intending to turn to signal continuously for 100 feet. The court

declined to find that its enforcement led to absurd results. Instead the

court concluded that the plain language of the statute "provides a

bright-line rule for both drivers of motor vehicles and police officers

charged with enforcing the law." It also noted that the legislature must

be understood to have meant what it expressed in a clear and

unambiguous statute and that the courts are not to subtract from it

(citing Weightman v. State, 975 S.W.2d 621,623-24 (Tx. Cr. App. 1998)).

      The Appellant's suggestion is that the statute should be

interpreted to allow an exception to the requirement to signal a turn

when the driver suddenly decided that he wanted to turn would render

the statute meaningless and unenforceable. See Hargrove v. State, 40

S.W.3d 556, 559 (Tx. App. Houston 14th Dist. 2001 rev. ref.), holding that

Section 545.104 is not unconstitutionally vague and that the defendant's




                                    11
suggested interpretation that it merely allows, but does not require a

signal would render the law meaningless.

      In Williams v. State, No. 05-02-00314-CR, 2002 Tex. App. LEXIS

8077 (Tx. App. Dallas 5th Dist. 2002 rev. ref.), not designated for

publication, a complaint identical to the Appellant's that the signal

requirement produced an absurd result because it required a signal to

turn where safety was not furthered was raised. The court of appeals

held that the statute was clear and unambiguous and its plain language

required a signal and applied anytime a turn is made and not merely in

situations where safety is involved, such as near a curve or grade.

      In interpreting statutes the courts must seek to effectuate the

intent or purpose of the legislature and, where the language is clear and

unambiguous, the plain meaning of the words should be applied. Boy kin

v. State, 818 S.W.2d 782, 785 (Tx. Cr. App. 1991).

      Here the legislature clearly and unambiguously provides that a

driver must signal a turn continuously for not less than 100 feet before

the turn. It did not say that a driver might avoid doing so if he was

hungry, or thought that it was safe not to do so, or decided to doing so




                                    12
would hamper his freedom of the road 2 • Such an interpretation would

be absurd and would render the legislatively imposed requirement of

the statute utterly meaningless and unenforceable.

      In this case it is undisputed that the Appellant failed to comply

with the statutory requirement to signal his turn for not less than 100

feet from the turn. The officer thus had the authority to initiate the

traffic stop.   Upon making that stop the officer discovered that the

Appellant was driving with his license suspended and, therefore, had

probable cause to arrest him.           Incident to that arrest the officer

searched the Appellant and found the cocaine on his person in his

pocket.

      The only issue in this case is the lawfulness of the initial traffic

stop. When a traffic violation is committed within an officer's view he

may lawfully stop and detain the person for that violation. Walter v.

State, 28 S.W.3d 538, 542 (Tx. Cr. App. 2000). A violation of Section

545.104 of the traffic code by failure to signal a turn is a violation of the

highway law and grounds for such a traffic stop. Perez v. State, No. 03-

98-00465-CR, 1999 Tex. App. LEXIS 5533 (Tx. App. Austin 3rct Dist. 1999


2
 It might well be argued that all criminal laws hamper one's freedom to do what one
might decide to do, but that hardly renders such laws absurd in their application.


                                        13
no pet.), not designated for publication; Krug v. State, 86 S.W.3d 7 64,

765-66 (Tx. App. El Paso 8th Dist. 2002 rev. ref.). See also State v. Elias,

339 S.W.3d 667, 676 (Tx. Cr. App. 2011), where the Court of Criminal

Appeals remanded the case to the trial court to determine whether or

not the traffic stop was pursuant to Section 545.104 and, therefore,

lawful.

      The language of Section 545.1 04(b) is clear and unambiguous and

provides a bright-line rule for both drivers and law enforcement. There

is nothing in that statute that leads to unreasonable or unforeseen

circumstances. There is no indication that the legislature intended it to

be optional or subject to exceptions of driver convenience. It must be

given the interpretation that effectuates the legislative intent. That

requires that it apply signaling as required for all turns.            That

interpretation is reasonable and provides guidelines for driving and for

enforcement. The trial court did not abuse its discretion in denying the

motion to suppress and in finding that the Appellant's vehicle was

lawfully stopped for a traffic violation and that the search of his person

was incident to a valid arrest for driving while his license was

suspended.




                                     14
                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                             Respectfully Submitted,

                                             HENRY GARZA
                                             District Attorney

                                             jsj    $aiJ ~- flrlmn
                                             BOB D. ODOM
                                             Assistant District Attorney
                                             P.O. Box 540
                                             Belton, Tx 76513
                                             (254) 933-5215
                                             FAX (254) 933-5704
                                             DistrictAttorney@co.bell.tx.us
                                             SBA No. 15200000




      CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State's Brief is in compliance with Rule 9

of the Texas Rules ofAppellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 1,972 words.




                                             jsj    $a6 Q). &r!mn
                                             BOB D. ODOM
                                             Assistant District Attorney



                                     15
                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Tim Copeland, Counsel for Appellant, by electronic

transfer via Email, addressed to him at tcopeland14@yahoo.com on this

28th day of May. 2015.



                                            jsj   $a6 ~. ffdonu
                                            BOB D. ODOM
                                            Assistant District Attorney




                                    16
                       APPENDIX
State v. Kidd No. 03-09-00620-CR, 2010 Tex. App. LEXIS 10341 (Tx.
      App. Austin 2010 no pet.), not designated for publication




                                  17
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  Citation: 2010 Tex. App. LEXIS 10341
                                      2010 Tex. App. LEXIS 10341,         *
                          The State of Texas, Appellant v. James D. Kidd, Appellee

                                           NO. 03-09-00620-CR

                          COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

                                        2010 Tex. App. LEXIS 10341


                                         December 30, 2010, Filed

  PRIOR HISTORY: [*1]
  FROM THE TRAVIS COUNTY COURT AT LAW NO. 8, NO. C-1-CR-07-200997, HONORABLE
  CARLOS HUMBERTO BARRERA .., JUDGE PRESIDING.

  DISPOSITION: Reversed and Remanded.

   CORE TERMS: signal, feet, continuously, traffic stop, deputy, traffic violation, investigative
   detention, driver, plain language, unambiguous, intending, seizure, suppress, traffic offense,
   reasonable suspicion, peace officer's, leads to absurd results, driving, detain


  COUNSEL: For Appellee: Mr. Kyle T. Lowe,., Austin, TX.

   For Appellant: Ms. Giselle Horton ., Assistant County Attorne, Austin, TX.

  JUDGES: Before Justices Patterson .., Puryear. and Henson ...

  OPINION BY: David Puryear ..

   OPINION


   MEMORANDUM OPINION

  James D. Kidd was charged with the misdemeanor offense of driving while intoxicated (DWI).
  Alleging that the initial traffic stop for failing to signal continuously an intent to turn for not less
  than 100 feet before the turn was unreasonable under the circumstances, Kidd filed a motion to
  suppress the evidence related to the DWI charge. A hearing resulted in the granting of the
  motion, and the State appealed. The sole issue on appeal is whether the traffic stop was
  constitutionally unreasonable. We will reverse and remand.

   BACKGROUND




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  Around midnight on January 27, 2007, Deputy Sheriff Anthony Sampson began following Kidd's
  vehicle. After about five miles, Deputy Sampson observed that Kidd failed to signal continuously
  for at least 100 feet before turning at aT-intersection. 1 Believing that Kidd's failure to signal
  intent to turn "continuously for not less than [*2] the last 100 feet" was in violation of section
  545.104(b) of the transportation code, the deputy initiated a traffic stop that resulted in Kidd's
  arrest for DWI. See Tex. Transp. Code Ann . § 545.104(b) (West 1999).

   FOOTNOTES

   1   Kidd activated his turn signal about 30 feet from the intersection.




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