                                                                         ACCEPTED
                                                                    12-14-00296-CR
                                                        TWELFTH COURT OF APPEALS
                                                                     TYLER, TEXAS
                                                             12/26/2014 11:03:31 AM
                                                                       CATHY LUSK
                                                                             CLERK

                CASE NO. 12-14-00296-CR

             IN THE TEXAS COURT OF APPEALS          FILED IN
                                            12th COURT OF APPEALS
                                                  TYLER, TEXAS
           TWELFTH SUPREME JUDICIAL   DISTRICT
                                            12/26/2014 11:03:31 AM
                                                 CATHY S. LUSK
                      TYLER, TEXAS                   Clerk
______________________________________________________

                 DAVID MARK DAVIS, II

                                      Appellant

                          VS.


                  THE STATE OF TEXAS

                                      Appellee


 On Appeal from the County Court at Law Number Two of
       Angelina County, Texas Cause No. 14-1048
______________________     ____________________________

                REPLY BREIF FOR APPELLEE
_________________________      _________________________



                     James M. Yakovsky
                     Assistant County Attorney
                     Angelina County Attorney’s Office
                     P.O. Box 1845
                     Lufkin, Texas 75902-1845
                     Telephone: 936.632.3929
                     State Bar No. 24030668


ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
                   TABLE OF CONTENTS

Statement of the Case..................................3

State’s Response to the issue presented.................4

Prayer..................................................7




                           1.
                  INDEX OF AUTHORITIES

Caseslaw

Garlington v. State, 25 S.W. 2d. 333,334 (Tex. Crim. App.
1930) ...................................................5

Garcia v. State, 827 S.W. 2d. 937, 944 (Tex. Crim. App.
1992) ...................................................6

Statutes

Tex. Transp. Code Sec. 545.352..........................5

43 Tex. Admin. Code Sec. 25.21 (b)(1) ...................5

Tex. Code of Crim. Proc. Art. 14.01 (b) ................6

Tex. Transp. Code Sec. 543.004..........................6

Tex. Transp. Code Sec. 543.005..........................6

Tex. Transp. Code Sec. 543.003..........................6

Tex. Transp. Code Sec. 543.010..........................6




                           2.
                       STATEMENT OF THE CASE

       As indicated in the Appellant’s brief, this cause

involving a speeding violation that was appealed from the

Lufkin Municipal Court to the Angelina County Court at

Law Number Two. A trial was set for October 10 th, 2014.

Just prior to trial, the Court heard Appellant’s argument

on his Motion to Suppress. In his argument, Appellant

claimed       his   personal      information    such    as     his    name,

address and license information was “the fruit” from the

“seizure” of the traffic stop, and should be suppressed.

Upon    the    Court’s   denial      of   his   Motion    to    Suppress,

Appellant entered a “no contest” plea, and the Court

rendered a judgment and punishment consisting of a fine

in the amount of $75.00 and court costs of $248.10.

Although      the   State    was    prepared    for     trial    with   the

presence of the officer and the video of the traffic

stop, Appellant’s voluntary plea of “no contest” to the

Court     eliminated        the    need   for    a    trial,      or    any

presentation of evidence on behalf of the State.




                                     3.
           STATE’S RESPONSE TO THE ISSUE PRESENTED

     The Trial Court’s denial of Davis’ Motion to Suppress

was correct, and without error

     This case involves a speeding violation, and nothing

more.   Defendant claims the traffic stop conducted by

Lufkin Police Officer Christopher Carroll was without

reasonable suspicion supported by articulable facts that

a traffic violation occurred. To the contrary, while on

routine traffic enforcement duty located at the 5000

block of South Chestnut near the city limits of Lufkin,

Angelina     County,      Texas,     Officer    Carroll    observed

Defendant who was travelling in his vehicle at a speed of

68 miles per hour, in excess of the posted speed which is

55   miles   per   hour   at   the      particular   location   where

Officer Carroll was working.

     As a result, Officer Carroll made a traffic stop upon

viewing a traffic violation committed by the Defendant

within Officer Carroll’s view.            A citation was issued to

the Defendant for speeding, upon which Defendant signed

and made a promise to appear.



                                   4.
Despite Defendant’s claims in his Motion, there was no

arrest, no searches and no seizures.

       Response and Authority

       Section 545.352 of the Transportation Code states “a

speed in excess of the limits established is prima facie

evidence that the speed is not reasonable and prudent,

and the speed is unlawful.” Texas Transp. Code Sec.

545.352.       Here,     Officer   Carroll     clocked    Defendant’s

vehicle with a “Stalker” Radar at 68 miles per hour, in

an area where the posted speed limit is 55 miles per

hour.        All speed limits are considered “prima facie”

limits.      Prima facie limits are those limits which on the

face    of    it   are   reasonable     and   prudent    under   normal

conditions.        43 Texas Administrative Code (TAC) Section

25.21 (b)(1).       While not conclusive, prima facie evidence

is proof of the case upon which a court or jury may find

a verdict, unless it is rebutted by other evidence.

Garlington v. State, 25 S.W. 2d. 333, 334 (Tex. Crim.

App. 1930).

       Defendant       committed   an    offense    within       Officer

Carroll’s view.          As long as an actual violation occurs,

                                   5.
law enforcement officials are free to enforce the laws

and detain a person for that violation.           Garcia v. State,

827 S.W. 2d. 937, 944 (Tex. Crim. App. 1992).                    As a

general    rule,   officers   may   arrest    a   person   for    any

offense committed in their presence or within their view.

Texas Code of Crim. Proc. Article 14.01 (b).           However, an

exception lies within Texas Transp. Code Sect. 543.004

and 543.005 where no arrest is made, and a notice or

promise to appear is made by the Defendant on cases

involving a speeding violation.            Here, no arrest was

made.     Defendant signed the citation, and made a promise

to appear.

    The notice to appear included the date and location

of where to appear for court, the Defendant’s name and

address, and the license plate number of the vehicle.

Tex. Transp. Code Sect. 543.003.              The citation also

includes the posted speed for the location, and the

Defendant’s    alleged   speed.     Tex.     Transp.   Code   Sect.

543.010.

    Based upon the foregoing, the traffic stop made by

Officer Carroll was proper based upon the commission of

                               6.
an offense by the Defendant within his view, as well as

the statutes and authority cited above.           In Texas, speed

in excess of the speed limit is prima facie evidence that

the speed Defendant was travelling was not reasonable and

prudent, and therefore, unlawful.

    Therefore, the Trial Court was correct in its denial

of Davis’ Motion to Suppress, and should not be entitled

to the relief requested in the issue presented here.

                             PRAYER

    WHEREFORE,     PREMISES         CONSIDERED,      the   State

respectfully requests the 12th Court of Appeals affirm the

Trial   Court’s   Order    denying    Appellant’s     Motion   to

Suppress.

                          Respectfully submitted,




                          _________________________________
                          James M. Yakovsky
                          Assistant County Attorney
                          Angelina County Attorney’s Office
                          P.O. Box 1845
                          Lufkin, Texas 75902-1845
                          Telephone: 936.632.3929
                          State Bar No. 24030668
                          ATTORNEY FOR THE STATE OF TEXAS


                               7.
                   CERTIFICATE OF SERVICE

    The undersigned attorney certifies that a true and

correct copy of the foregoing Response to Relator’s Brief

was served upon the Appellant Pro Se, David Mark Davis,

II, 11 Glenview Court, Lufkin, Texas 75901 on the 26th of

December, 2014 by electronic delivery.




                                      _______________________
                                      James M. Yakovsky


                  CERTIFICATE OF COMPLIANCE

    I   certify    this   document   contains   1,060   words,

counting all parts of the document except those excluded

by Tex.R.App.P.9.4(i)(1). The body text is in 14 point

font.




                                      _______________________
                                      James M. Yakovsky
