                                                                     PD-1189-14
                                                    COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                  Transmitted 10/16/2015 4:04:43 PM
                                                    Accepted 10/16/2015 4:20:57 PM
                                                                     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 MOTION FOR REHEARING
       ________________________________________


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




     October 16, 2015
                               Basis for Rehearing

       The opinion issued by this Court, reversing the Fourteenth Court of

Appeals decision, turns years of Texas jurisprudence on its head and should

be reconsidered. Since Ford v. State1 was decided in 2005, every court in

the State has parroted its language in cases involving warrantless seizures

based on traffic stops. The Court’s opinion here completely changes the

analysis of these cases without providing a rationale for doing so.



                          1. Deference to the Trial Court

       This Court criticized the Court of Appeals for not giving deference to

the Trial Court. The lack of deference aligns with the bifurcated review this

Court and inferior courts throughout the State employ in these situations.

Courts are to give almost total deference to the trial court's determination of

historical facts and review de novo the trial court's application of law to facts

not turning on credibility and demeanor. 2 Here, the video clearly shows

everything necessary to determine the facts and thus deference to the Trial

Court’s credibility determinations is unnecessary.




1
 See Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005).
2
  Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009); Ford v. State, 158
S.W.3d 488, 492-93 (Tex. Crim. App. 2005).
                        2. Objective not Subjective Standard

         The Court also appears to abandon the objectivity requirement in

considering the officer’s actions and instead criticizes the Court of Appeals

for failing to consider reasonable suspicion from the Trooper’s vantage

point.      While the Court uses the word “objective,” what the Court actually

does is look at it subjectively from the Trooper’s point of view.           An

analogous situation would be a citizen being pulled over because an officer

thought he or she failed to use their turn signal, but the video subsequently

shows the citizen properly using their turn signal.       Would it be proper to

look at the video from the officer’s point of view and speculate as to how he

could have personally observed a violation- maybe the sun was in his eyes,

or a glare on the windshield? Of course it would not be proper.

                   3. The Court did not Address the Key Dispute

         In Ford v. State, this Court squarely addressed a situation wherein the

offense was not clearly defined, namely: what constitutes “following too

close?” 3 Courts have also addressed this issue as it relates to cases involving




3
    Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005).
“failure to maintain a single lane” and the requirement of evidence of

dangerousness.4

       Here the issue is similar: what constitutes “passing?” As Jaganathan

has pointed out during this process: passing is not a binary act, but, 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 using turn signals,

not placing other vehicles in danger, and – pertinent to this case – not

obstructing the passage for emergency vehicles.



4
  See, e.g., Mahaffey v. State, 316 S.W.3d 633, 640 n.35 (Tex. Crim. App. 2010); Fowler
v. State, 266 S.W.3d 498 (Tex. App. Ft. Worth – 2008) (reversing denial of a motion to
suppress where officer observed the citizen’s tires cross into an adjacent lane of traffic
with no cars in the area); see also Curtis v. State, 209 S.W.3d 688 (Tex. App. -
Texarkanna 2006 (reversing a trial court because traffic stop was not justified – the
officer observed weaving out of the lane, but no evidence that the weaving was unsafe).
See also Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App. – Austin 1998, pet ref’d)
(holding that a defendant’s slow swerve into another same direction lane did not provide
reasonable suspicion for a stop); State v. Tarvin, 972 S.W.2d 910 (Tex. App. – Waco
1998) (upholding the grant of a motion to suppress when the state failed to demonstrate
dangerousness of failing to swerving).
         If one follows the Court’s rationale to its logical conclusion, officers

now have carte blanche to stop anyone on the highway who is traveling in

the left lane for any period of time without someone immediately in the

adjacent lane if a controlling sign is present. Reasonable suspicion requires

that the State provide specific and articulable facts that would lead a rational

person to believe an offense had been committed before initiating a Fourth

Amendment seizure.5 Setting aside the Trooper’s subjective beliefs about

what passing means and whether or not Jaganathan was actually doing so, an

objective observer of the video – properly giving no weight to the trial

court’s determination – cannot conclude that the evidence here meets the

“specific and articulable facts” standard. No one actually articulated what

passing was in this case.

                               PRAYER FOR RELIEF

         WHEREFORE, the Francheska Jaganathan prays that the Court of

Criminal Appeals Grant her Motion for Rehearing and AFFIRM the

judgment of the Court of Appeals.

                                             Respectfully submitted,

                                             /s/ Ryan W. Gertz
                                             _________________________
                                             Ryan W. Gertz
                                             The Gertz Law Firm

5
    See Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997).
                                      2630 Liberty
                                      Beaumont, TX 77702
                                      Tel: (409) 833-6400
                                      Fax: (409) 833-6401
                                      Texas Bar. No. 24048489
                                      Attorney for Francheska Jaganathan


                       CERTIFICATE OF SERVICE

      The undersigned hereby certifies that on this 16th day of October,

2015, a true and correct copy of the foregoing instrument was served on the

following counsel of record in accordance with the rules:


      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
