                                                                            PD-1189-14
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
January 20, 2015                                         Transmitted 1/16/2015 2:00:36 PM
                                                          Accepted 1/20/2015 11:50:02 AM
                                                                             ABEL ACOSTA
                                No. PD-1189-14                                       CLERK

                    IN THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS


                   FRANCHESKA V. JAGANATHAN, Appellant

                                      v.

                        THE STATE OF TEXAS, Appellee

                          Appeal from Chambers County

                   ________________________________________

   FRANCHESKA V. JAGANATHAN’S BRIEF ON THE MERITS
         ________________________________________


                                Ryan W. Gertz
                              The Gertz Law Firm
                                  2630 Liberty
                             Beaumont, TX 77702
                              Tel: (409) 833-6400
                              Fax: (409) 833-6401
                            Texas Bar. No. 24048489
                                       TABLE OF CONTENTS


TABLE OF CONTENTS..........................................................................................ii

INDEX OF AUTHORITIES....................................................................................iii

STATEMENT OF THE CASE…………………………………………….............1

STATEMENT REGARDING ORAL ARGUMENT……………………………...2

STATEMENT OF FACTS…………………………………………………………2

SUMMARY OF THE ARGUMENT……………………………………………....4

ARGUMENT AND AUTHORITIES……………………………………………...5

CONCLUSION.......................................................................................................13

PRAYER FOR RELIEF…………………………………………………………..13

CERTIFICATE OF COMPLIANCE…………………...........................................14

CERTIFICATE OF SERVICE................................................................................15




                                                         ii
                         INDEX OF AUTHORITIES

Cases

Abney v. State, 394 S.W.3d 542 (Tex. Crim. App. 2013)………………………….8

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009)…………..................7, 8

Baker v. State, 50 S.W.3d 143 (Tex.App.-Eastland 2001, pet. ref'd)………………9

Bishop v. State, 85 S.W.3d 819 (Tex. Crim. App. 2002)………………………..7, 8

Castro v. State, 227 S.W.3d 737 (Tex. Crim. App. 2007)………………………….8

Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997)…………………………..8

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005)…………….......................7

Green v. State, 93 S.W.3d 541(Tex.App.-Texarkana 2002, pet. ref'd)………….8, 9

Mouton v. State, 101 S.W.3d 686 (Tex.App.-Texarkana 2003, no pet.)…………...8

State v. Steelman, 93 S.W.3d 102, 106 n. 5 (Tex. Crim. App. 2002)……………....8

United States v. Garcia, 976 F.Supp.2nd 856(N.D. Tex 2013)…………………9, 10

Whren v. United States, 517 U.S. 806 (1996)………………………………………8




                                       iii
                               No. PD-1189-14
                IN THE COURT OF CRIMINAL APPEALS

                        OF THE STATE OF TEXAS

FRANCHESKA V. JAGANATHAN,                                      Appellant

v.
THE STATE OF TEXAS,                                            Appellee

              ________________________________________

     FRANCHESKA V. JAGANATHAN’S BRIEF ON THE MERITS
           ________________________________________


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now Francheska Jaganathan, by and through her Counsel, and

respectfully presents to this Court her brief on the merits.

                        STATEMENT OF THE CASE

      Francheska Jaganathan was arrested for possession of marijuana on

June 5, 2010.1 Jaganathan filed a motion to suppress the evidence because

of an unlawful stop and the trial court held a hearing on April 5, 2012.2 In

December, 2012, Judge Carroll Wilborn denied the motion to suppress.3 In

April, 2013, Judge Randy McDonald heard Jaganathan’s guilty plea, but

granted her deferred adjudication community supervision and a fine of



1
  RR 3.
2
  RR 13-39.
3
  RR 40.
                                       1
$1,500 amongst other requirements. 4 The Court of Appeals reversed and

remanded on July 8, 2014. This Court granted the State’s Petition for

Discretionary Review on November 19, 2014.

                 STATEMENT REGARDING ORAL ARGUMENT

       Oral argument was not granted by the Court but Jaganathan

respectfully submits that oral argument would aid the Court in the

disposition of the case as it presents novel questions for consideration.

                            STATEMENT OF FACTS

       The entire incident was captured on video and thus the facts are not

disputed. 5    Francheska Jaganathan, was pulled over while driving east-

bound through Chambers County on Interstate - 10. According to Trooper

Norsworthy, who pulled her over, Jaganathan was stopped for driving in the

left hand lane in a segment of the Interstate that requires vehicles to use the

left lane for “passing only” and for no other reason.6

       The controlling “Left Lane For Passing Only” sign first appears in

Chambers County between Mile Marker 813 and Mile Marker 814.7 This

stretch of Interstate 10 has three lanes and a shoulder on both sides.

4
  CR 4, 5. The State’s Brief to this Court mistakenly asserts that Jaganathan was
convicted, she was not.
5
  RR 4, Exhibit 2 – Video.
6
  RR 2, 18.
7
  RR 2, 19. Note to the Court: several such signs have now been added between Baytown
and Winnie, however, in 2010 the sign at Mile Marker 813 was the first one on the east-
bound side of Interstate - 10.
                                          2
Jaganathan was passing vehicles via the left hand lane at the time she passed

both Mile Marker 813 and, subsequently, the “Left Lane For Passing Only”

sign.8 She was approached by the Trooper, crossed three lanes of traffic,

and stopped prior to arriving at Mile Marker 814. She was neither speeding

nor committing any objectively verifiable traffic offense. In all, Jaganathan

traveled less than half a mile in the left lane after passing the controlling sign

before the Trooper turned on his light bar and pulled her over.9

       The video shows two vehicles were in the center lane between

Jaganathan and the Trooper: a blue truck - that she passes between the time

that she crosses the Mile Marker 813 sign and the “Left Lane For Passing

Only” sign - and a white sedan immediately in front of that truck. 10

Jaganathan appears to be driving faster than both the blue truck and the

white vehicle.11 The Trooper - in the right lane – was driving faster than the

speed of traffic.12 Once the Trooper came into Jaganathan’s line of sight,

she slowed down noticeably and the white vehicle began gaining ground on



8
  RR 4, Exhibit 2; Video 1:09 – 1:26.
9
  Expert Jack McClelland believed it was thirty-three seconds or less. See RR 2, 45; see
also RR 4, Exhibit 2: Video 1:26 – 1:45 (when Trooper pulls in behind Jaganathan).
10
   RR 4, Exhibit 2; Video 1:19-1:30; see also RR 2, 21-22 (Trooper Norsworthy agrees
that a white vehicle was immediately in front the vehicle in the middle lane).
11
   RR 4, Exhibit 2: Video 1:19-1:27.
12
   RR 2, 20 & 30, RR 4, Exhibit 2; Video 00:00 – 1:20 (showing Trooper pass 12
vehicles in less than two minutes before pulling up to Jaganathan). Additionally, Trooper
Norsworthy concedes he was going faster than the speed of traffic. RR 2, 20.
                                           3
her.13 Between the time that Jaganathan passed the “Left Lane For Passing

Only” sign and the Trooper pulled into the middle lane, less than thirteen

seconds elapsed.14

         During the course of the traffic stop, the Trooper smelled marijuana in

the vehicle and conducted a search.               He found the vehicle contained

marijuana in the trunk.          The Trooper did not obtain a warrant before

detaining the Defendant or searching the vehicle.

                         SUMMARY OF THE ARGUMENT

         `The Court of Appeals correctly found that Trooper Norsworthy did

not have reasonable suspicion to conduct a traffic stop and warrantless arrest

of Jaganathan. The reasoning of the Court of Appeals was both fact-based

and sound. The Court concluded that Jaganathan completed a passing

maneuver in close proximity to the “Left Turn for Passing Only” sign and

increased the distance between her car and the car she passed; a white car

merged into the middle lane, making it potentially unsafe for her to change

lanes; the State Trooper approached Jaganathan’s vehicle at a high rate of

speed, which caused her to slow down and hindered her ability to pass the

white car in the middle lane; the State Trooper followed Jaganathan in the

left lane for only two tenths of a mile; and Jaganathan was not impeding

13
     RR 2, 23 and RR 2, 30-31; RR 4, Exhibit 2: Video 1:33-1:40.
14
     RR 4, Exhibit 2: Video 1:26 – 1:39.
                                             4
traffic or endangering other drivers’ safety. The Court concluded, therefore,

that evidence did not give rise to reasonable suspicion that Jaganathan had

violated a traffic offense and thus she was seized of her liberty unlawfully.

This decision was correct and should be upheld.

                     ARGUMENT AND AUTHORITIES

                    1. Clarifying the Question Presented

       Passing a vehicle, unlike speeding or using a turn signal, is not a

binary act. A vehicle is either exceeding the speed limit or is not. A driver

either uses a turn signal to indicate a lane change or does not. The State

incorrectly assumes, based on her issue presented, that passing is similar to

those offenses; it is not.

       Passing, rather, involves a series of relatively complicated maneuvers

and calculations. One is not simply passing or not passing. Instead a driver

must: pass the slower vehicle at some speed exceeding the other vehicle’s

speed, travel a sufficient distance beyond that vehicle to safely pull back in

front of that vehicle, and do so while determining whether other vehicles in

the lane warrant passing or are a sufficiently safe distance ahead to make it

safe to pull back into the original lane. The law requires all of these tasks be

accomplished while neither speeding nor following too closely, yet properly




                                       5
using turn signals, not placing other vehicles in danger, and – pertinent to

this case – not obstructing the passage for emergency vehicles.

       Instead of considering the question: “Does driving in the left lane

while not ‘in the process of passing’ after passing a ‘Left Lane for Passing

Only’ sign provide reasonable suspicion of a traffic violation” as the State

would urge, the Court should consider a question driven by the actual facts

of this case.

       The undisputed facts are: 1) Jaganathan had passed one vehicle and

was gaining ground on another when the “Left Lane Passing Only” sign

became effective, 2) Jaganathan slowed her vehicle once Norsworthy came

into view, 3) Trooper Norsworthy pulled into the center lane, traveling at a

high rate of speed, seconds after both vehicles passed the sign, and 4) it

would not have been reasonable or safe for Jaganathan to pull directly in

front of him into the center lane. Given those facts, the correct question for

the Court to consider is: When a driver proceeds for thirteen seconds – or

less than a quarter of a mile - in the left lane after simultaneously passing a

vehicle and a “Left Lane for Passing Only” sign, all the while gaining

ground on another vehicle, does a Trooper have sufficient evidence to

necessitate a traffic stop?   Clearly the answer is no.      For that reason,

Jaganathan would urge this Court to affirm the Court of Appeals reversal.

                                      6
                             2. Standard of Review

       In reviewing a trial court's ruling on a motion to suppress, Texas

appellate courts use a bifurcated standard of review to evaluate whether

reasonable suspicion exists for a stop exists.15 Courts give deference to a

trial court's determination of the facts as supported by the record but

review de novo the trial court's application of the law to facts, which do not

turn on credibility and demeanor.16

       Because the alleged traffic violation was caught on video, this case

presents a purely legal question as the facts are not – and should not be - in

dispute. The question presented does not turn on a question of fact or the

credibility of the witnesses but rather the reasonableness - as a matter of law

- of the stop itself. As such, the Court of Appeals correctly applied de novo

review.

                                   3. Authority

       When considering a motion to suppress, the Defendant initially bears

the burden of demonstrating that the search or seizure was conducted absent

a warrant.17 Once the defendant demonstrates that a warrantless seizure and

search occurred, the burden shifts to the State to prove a warrant existed or a

15
   Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
16
   Id.; see also Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005).
17
   Amador, 275 S.W.3d at 878; Bishop v. State, 85 S.W.3d 819, 821 (Tex. Crim. App.
2002).
                                          7
recognized exception justifies the warrantless seizure or search given the

totality of the circumstances. 18 One exception would be that the officer

observed criminal activity or, as alleged in this case, a traffic violation.

      To justify a traffic stop, an officer must observe specific and

articulable facts which, together with inferences from those facts, would

warrant a reasonable person to believe a traffic violation had

occurred. 19 Moreover, the United States Supreme Court has held that a

traffic stop will not be valid unless a reasonable officer in the same

circumstances would have stopped the car for the suspected offense.20

      In Abney v. State, this Court outlined how courts should consider

cases involving stops for a violation of a “Left Lane for Passing Only”

requirement.21 The Court highlighted previous decisions where Defendants

had driven various distances in the left lane prior to being stopped on that

basis. 22 But, in each of those cases, there were no other vehicles in the

immediate vicinity of the offending vehicles.23


18
   Amador, 275 S.W.3d at 878. See also Castro v. State, 227 S.W.3d 737, 741 (Tex.
Crim. App. 2007); State v. Steelman, 93 S.W.3d 102, 106 n. 5 (Tex. Crim. App.
2002); Bishop,85 S.W.3d at 822.
19
   See Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997).
20
   Whren v. United States, 517 U.S. 806, 809 (1996).
21
   See generally Abney v. State, 394 S.W.3d 542 (Tex. Crim. App. 2013).
22
   Abney, 394 S.W.3d at 546.
23
   See Abney, 394 S.W.3d at 546 (discussing Mouton v. State, 101 S.W.3d 686, 690
(Tex.App.-Texarkana 2003, no pet.) (vehicle traveled at least a mile without passing
another vehicle); Green v. State, 93 S.W.3d 541, 545 (Tex.App.-Texarkana 2002, pet.
                                         8
       After noting the vagueness of the Statute, the Court delineated a

totality of the circumstances test and suggested consideration of two key

questions: 1) how long must someone be traveling in the left lane without

passing another vehicle before a stop is warranted; and 2) how close must a

driver be to the controlling sign for it to control?24 In the present case, this

Court need only address the first question as there is no question that

Jaganathan passed the controlling sign - and it took effect – east of Mile

Marker 813.

       Applying this Court’s test from Abney, a U.S. District Court recently

added two additional factors to that first question: 1) whether the video

shows the accused either actively passing another vehicle or in a position to

pass another vehicle and 2) whether the officer’s actions influenced the

accused’s driving.25 As to these two factors, the facts of the present case are

nearly identical to those in Garcia. In that case, the Trooper was passed by

Garcia in the left lane.26 The Trooper observed Garcia pass one vehicle and

was gaining ground on a large rig truck further ahead. The Trooper then

speed up his vehicle, closing the gap between his clearly marked patrol


ref'd) (no vehicles were in the vicinity of Green while she was in the left hand lane);
Baker v. State, 50 S.W.3d 143, 145 (Tex.App.-Eastland 2001, pet. ref'd) (after passing the
officer, Baker continued to travel in the left hand lane without passing another vehicle)).
24
   Abney, 394 S.W.3d at 550.
25
   United States v. Garcia, 976 F. Supp. 2d 856, 865-66 (N.D. Tex 2013).
26
   Id.
                                            9
vehicle and the rig truck. The Trooper testified that the offense Garcia

committed was failing to pull back into the right lane directly in front of his

now accelerating patrol vehicle.27 Yet, like the present case, the Trooper

acknowledged on cross examination that it would have been unsafe for

Garcia to pull directly in front of his patrol vehicle after he had accelerated

and closed the gap. 28 Like the present case, the distance the Trooper

observed Garcia’s driving was less than a mile. In granting Garcia’s motion

to suppress, the Court concluded that the Trooper did not have reasonable

suspicion of a traffic violation because he observed Garcia actively passing

one vehicle while gaining ground on another and the Trooper’s own actions

impacted the Garcia’s ability to safely get out of the left lane.29

                                 4. Argument

        Similar to Garcia, no reasonable officer would have initiated this stop

given the limited time between Jaganathan entering the “Left Lane for

Passing Only” zone and when the Trooper began pulling her over. Two key

facts illustrate why the stop was unreasonable: 1) that she was passing

vehicles at the time she passed the sign and was approached by the Trooper;

and 2) that the Trooper observed her for less than thirteen seconds in the


27
   Id. at 866.
28
   Id.
29
   Id.
                                       10
prohibited zone before pulling toward her to initiate a stop. Both facts

illustrate that the stop was both premature and unreasonable.

       First, Jaganathan was passing a blue truck at the time she passed the

“Left Lane for Passing Only” sign and a white sedan was immediately in

front of the blue truck.30 She was clearly traveling faster than both vehicles

and would have overcome the white sedan in short order had circumstances

not changed. Even Trooper Norsworthy concedes that the white sedan was

in the middle lane directly in front of the blue truck – a fact the State

discounts in their brief to this Court.

       With the white sedan immediately in front of the blue truck – it would

have been unreasonable for Jaganathan to proceed immediately to the

middle lane. And when the Trooper pulled into her line of site, Jaganathan

slowed and chose not to pull closer to the Trooper into the middle or right

lane.31 The Trooper even conceded that it would not be reasonable – and

people typically do not – pull closer to a clearly-marked patrol car

approaching at a high rate of speed.32 Thus, without the influence of the

Trooper approaching at a high speed in the right lane and proceeding to the



30
   RR 4, Exhibit 2; Video 1:19-1:30; see also RR 2, 21-22 (Trooper Norsworthy agrees
that the white vehicle was immediately in front the vehicle in the middle lane).
31
   RR 2, 30-31 (Again, Trooper Norsworthy confirms this by agreeing that her “vehicle
slowed noticeably,” RR2, 23).
32
   RR 2, 23-24.
                                          11
center lane, Jaganathan likely would have continued to pass the white

vehicle next.

       Second, and more importantly, less than thirteen seconds elapsed from

the time Jaganathan passed the controlling sign and the time the Trooper

pulled into the middle lane closer to Jaganathan. At a speed of sixty-five

miles an hour, Jaganathan would have traveled less than a quarter of a mile

in thirteen seconds.33 Even if one were to consider the twenty-six seconds

that transpired from when she entered the restricted zone to the time the

Trooper turned on his lights, she would have traveled less than half a mile.

       Given these indisputable facts, this Court need only determine

whether they amount to reasonable suspicion for a traffic stop. Certainly

they do not. Perhaps if no other vehicles had been in the center lane or the

Trooper had observed Jaganathan driving for some extended period in the

left lane without passing or she had been violating some objective standard –

the speed limit for example – that would have justified the stop; but this

Court need not consider such hypotheticals.

       Put simply, the stop was premature at best. No reasonable officer

would observe Jaganathan’s conduct and conclude she was violating the
33
   Jaganathan would ask the Court to take judicial notice of the fact that, at sixty miles per
hour, a vehicle would travel one quarter of a mile in fifteen seconds. Thus, at a higher
rate of speed the time necessary to travel a quarter of a mile would diminish. Numerous
calculators are available on the web to calculate exact outputs based on a variety of
variables such as speed and distance.
                                             12
statute in question. She should not have been stopped and the trial court

erred by denying her motion to suppress. The Court of Appeals, however,

correctly reversed that decision. Jaganathan respectfully requests that this

Court affirm that decision.

                               CONCLUSION

      The Court of Appeals correctly reversed the trial court’s denial of the

motion to suppress in this case. Given the indisputable video evidence, no

reasonable officer would have pulled Jaganathan over given the fact that she

had passed one vehicle and was gaining ground on another coupled with the

fact that the officer pulled into the center lane in a clearly marked vehicle at

a high rate of speed. The Trooper simply did not observe Jaganathan’s

driving for a sufficient period of time to determine whether she had

committed this particular traffic offense. This Court should affirm.

                           PRAYER FOR RELIEF

      WHEREFORE, the Francheska Jaganathan prays that the Court of

Criminal Appeals AFFIRM the judgment of the Court of Appeals.




                                      13
                                     Respectfully submitted,

                                     /s/ Ryan W. Gertz
                                     _________________________
                                     Ryan W. Gertz
                                     The Gertz Law Firm
                                     2630 Liberty
                                     Beaumont, TX 77702
                                     Tel: (409) 833-6400
                                     Fax: (409) 833-6401
                                     Texas Bar. No. 24048489
                                     Attorney for Francheska Jaganathan



                   CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the Microsoft Word count

tool this document contains 3,000 words.

                                     /s/ Ryan W. Gertz
                                     ______________________________
                                     Ryan W. Gertz




                                    14
                       CERTIFICATE OF SERVICE

      The undersigned hereby certifies that on this 16th date of January,

2015, a true and correct copy of the Francheska Jaganathan’s Brief on the

Merits was e-filed or e-mailed to the following:


      Eric Carcerano
      Assistant District Attorney
      Chambers County
      P.O. Box 1409
      Anahuac, TX 77514
      ecarcerano@co.chambers.tx.us

      John R. Messinger
      Assistant State Prosecuting Attorney
      P.O. Box 13046
      Austin, TX 78711
      information@spa.texas.gov


                                             /s/ Ryan W. Gertz
                                             _________________________
                                             Ryan W. Gertz
                                             Attorney for Appellant




                                     15
