                                                                          PD-0281-15
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                       Transmitted 4/2/2015 11:00:06 AM
                                                          Accepted 4/2/2015 1:58:00 PM


           No. PD-0281-15
                                                                           ABEL ACOSTA
                                                                                  CLERK




            IN THE COURT OF CRIMINAL APPEALS
                  OF THE STATE OF TEXAS


                    THE STATE OF TEXAS, Appellant

                                  v.

                     JEFFREY GRENDON, Appellee


                      Appeal from El Paso County


JEFFREY GRENDON’S RESPONSE TO PETITION FOR
          DISCRETIONARY REVIEW


                                       TIMOTHY A. HOOTMAN
                                       SBN 09965450
                                       2402 Pease St
                                       Houston, TX 77003
                                       713.247.9548
                                       713.583.9523 (fax)
                                       E-mail: thootman2000@yahoo.com
    April 2, 2015                      ATTORNEY FOR RESPONDENT JEFFREY
                                       GRENDON




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                                        TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................ 2
INDEX OF AUTHORITIES ........................................................................................... 3
ARGUMENT .............................................................................................................. 2
PRAYER ..................................................................................................................... 7
CERTIFICATE OF WORD COUNT ................................................................................. 7
CERTIFICATE OF SERVICE ......................................................................................... 8




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                       INDEX OF AUTHORITIES
Texas cases:
Atkinson v. State, 848 S.W.2d 813 (Tex. App.—Houston [14th Dist.] 1993, pet.
   ref’d)……………………………………………………………………………………………………… 4
Aviles v. State, 23 S.W.3d 74 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)… 4
Barraza v. State, 733 S.W.2d 379 (Tex. App.—Corpus Christi 1987), aff’d, 790
  S.W.2d 654 (Tex. Crim. App. 1980)………………………………………………………….. 6
Bass v. State, 64 S.W.3d 646 (Tex. App.—Texarkana 2001, pet. ref’d)……………….4
Carter v. State, 309 S.W.3d 31 (Tex. Crim. App. 2010)……………………………………. 7
Eichler v. State, 117 S.W.3d 897 (Tex. App.—Houston [14th Dist.] 2003, no
   pet.)………………………………………………………………………………………………………. 4
Fowler v. State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008, pet. ref’d)………..4
Hernandez v. State, 983 S.W. 867 (Tex. App.—Austin 1998, pet. ref’d)…………….. 4
Mahaffey v. State, 316 S.W.3d 633 (Tex. Crim. App. 2010)……………………………… 4
Miffleton v. State, 728 S.W.2d 880 (Tex. App.—Austin 1987), aff’d, 777 S.W.2d 76
  (Tex. Crim. App. 1989)……………………………………………………………………………..6
Milton v. State, 549 S.W.2d 190 (Tex. Crim. App. 1977)……………………………………5
Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006)……………………………… 7
State v. Alderete, 314 S.W.3d 469 (Tex. App.—El Paso 2010, pet. ref’d)……………. 5
State v. Arriaga, 5 S.W.3d 804 (Tex. App.—San Antonio 1999, pet. ref’d)………… 4
State v. Cherny, 28 S.W.3d 796 (Tex. App.—Corpus Christi 2000, no pet.)………. 4
State v. Tarvin, 972 S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d)…………………. 4
Raffaelli v. State, 881 S.W.2d 714 (Tex. App.—Texarkana 1994, pet. ref’d)…………6

Federal cases:
Arizona v. Johnson, 555 U.S. 783 (2009)………………………………………………………. 5
United States v. Hill, 195 F.3d 258 (6th Cir. 1999)…………………………………………… 5
United States v. Holt, 264 F.3d 1215 (10th Cir. 2001)………………………………………. 5
United States v. Sandoval, 29 F.3d 537 (10th Cir. 1994)…………………………………… 5

Rules and statutes:
TEX. TRANS. CODE § 545.060………………..……………………………………………………. 4, 6
TEX. REV. CIV. STAT. art. 6701d § 60(a)………………………………………………………….. 4

                                      ~3~
                                  ARGUMENT
       Section 545.060 of the Rules of the Road states that “[a]n operator … shall

drive as nearly as practical entirely within a single lane; and may not move from

the lane unless that movement can be made safely.” TEX. TRANS. CODE § 545.060

(emphasis added). The court of appeals concluded that a violation under section

545.060 occurs when both conditions are present; that is, there is only one way to

violate the statute. The state argues that a violation occurs when an operator

either strays from a lane although not practical to so stray, or he strays from a

lane in an unsafe manner; that is, there are two ways to violate the statute.

       Many appellate opinions support the one-method interpretation. 1          No

opinions support the two-method interpretation advanced by the state. The

state’s brief places an olive leaf over this inconvenience in attempting to convince

this Court to exercise its jurisdiction by stating that “no court of appeals has ever

conducted a thorough analysis of section 545.060(a) or its predecessor, TEX. REV.

CIV. STAT. art. 6701d § 60(a).” See St. Pet. at 4.




   1   See, e.g., Mahaffey v. State, 316 S.W.3d 633, 640 (Tex. Crim. App. 2010);
Fowler v. State, 266 S.W.3d 498, 499 (Tex. App.—Fort Worth 2008, pet. ref’d);
Eichler v. State, 117 S.W.3d 897, 900 (Tex. App.—Houston [14th Dist.] 2003, no
pet.); Bass v. State, 64 S.W.3d 646, 651 (Tex. App.—Texarkana 2001, pet. ref’d);
State v. Cherny, 28 S.W.3d 796, 800 (Tex. App.—Corpus Christi 2000, no pet.);
Aviles v. State, 23 S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d); State v. Arriaga, 5 S.W.3d 804, 807 (Tex. App.—San Antonio 1999, pet.
ref’d); Hernandez v. State, 983 S.W. 867, 871 (Tex. App.—Austin 1998, pet.
ref’d); State v. Tarvin, 972 S.W.2d 910, 910-11 (Tex. App.—Waco 1998, pet.
ref’d); Atkinson v. State, 848 S.W.2d 813, 815 (Tex. App.—Houston [14th Dist.]
1993, pet. ref’d).
                                        ~4~
       The state also argues that its two-method interpretation should prevail so

that fewer motions to suppress are granted. The state’s petition for review states

in this regard: “And while it might be easy to overlook the importance of defining

a single traffic offense, it is difficult to ignore the seriousness of the offenses that

go unpunished as a result [of the one-method interpretation].”). See St. Br. at 3.

However, the purpose of the Rules of the Road are to insure that driving is safe,

not to provide law enforcement with technical reasons to conduct searches for

more serious offenses. Of course, law enforcement may properly elevate a traffic

stop to a more serious detention if reasonable under the circumstances. See

Milton v. State, 549 S.W.2d 190, 193-194 (Tex. Crim. App. 1977). But when the

purpose of the stop is for a traffic offense, the detention should be no longer than

necessary to give a citation. 2 On the other hand, if law enforcement is aware of

circumstances that indicate an offense other than a traffic violation, a stop is

proper for that reason alone. See State v. Alderete, 314 S.W.3d 469, 471 (Tex.

   2   See Arizona v. Johnson, 555 U.S. 783, 788 (2009) (“An officer’s inquiries
into matters unrelated to the justification for the traffic stop, this Court has made
plain, do not convert the encounter into something other than a lawful seizure, so
long as those inquires do not measurably extend the duration of the stop.”);
United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (“[A]ny questioning
that unreasonably extends the duration of the stop must be justified by additional
articulable suspicion or probable cause.”); United States v. Hill, 195 F.3d 258,
264 (6th Cir. 1999) (“Once the purpose of the traffic stop is completed, a motorist
cannot be further detained unless something that occurred during the stop
caused the officer to have a reasonable and articulable suspicion that criminal
activity is afoot.”); United States v. Sandoval, 29 F.3d 537, 539-40 (10th Cir.
1994) (“When the driver [who has been stopped for a traffic violation] has
produced a valid license and proof that he is entitled to operate the car, he must
be allowed to proceed on his way, without being subject to further delay by police
for additional questioning.”).

                                        ~5~
App.—El Paso 2010, pet. ref’d); Raffaelli v. State, 881 S.W.2d 714, 716 (Tex.

App.—Texarkana 1994, pet. ref’d); Barraza v. State, 733 S.W.2d 379, 380 (Tex.

App.—Corpus Christi 1987), aff’d, 790 S.W.2d 654 (Tex. Crim. App. 1980);

Miffleton v. State, 728 S.W.2d 880, 883 (Tex. App.—Austin 1987), aff’d, 777

S.W.2d 76 (Tex. Crim. App. 1989). Therefore, the state’s public policy argument

that many serious offenses go unsolved because of the one-method interpretation

is unpersuasive.

      Under well-established law, the officer in this case could have stopped

respondent for suspicion of driving while intoxicated, regardless of section

545.060, if the swaying were such that it indicated a violation. Id. However, the

officer testified that he stopped respondent, not for suspicion of driving while

intoxicated, but for suspicion of the section 545.060 traffic offense. The court of

appeals opinion states in this regard that “the officer testified that the swerving

constituted a traffic offense, and he never contended the stop was based on

suspicion of driving while intoxicated.”     Op. at 7.   Additionally, the officer

exaggerated his description of what he saw to such a degree that the trial court

concluded that he was not a credible witness; the trial court found that “the dash

cam video was in direct conflict with the police officer’s testimony regarding how

many times the defendant swerved into the lanes[.]” Op. at 4. Thus, even under

the state’s two-method interpretation, the record shows that respondent drove as

nearly as practical within a single land and that he was safe, in spite of the

officer’s testimony which was not credible. Of course, the trial court’s findings,

                                      ~6~
including those as to credibility, are reviewed on appeal with great deference,

even when there is a video, as in this case. Carter v. State, 309 S.W.3d 31, 40

(Tex. Crim. App. 2010); Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App.

2006).

      Although Rule 66.3 is broad, it is not so broad as to warrant exercise of this

Court’s jurisdiction over the circumstances of this case. TEX. R. APP. P. 66.3.

                                     PRAYER

      Respondent, Jeffrey Grendon, prays that the Court refuse the state’s

petition for discretionary review.

                                             Respectfully submitted,

                                             /s/Timothy A. Hootman
                                             TIMOTHY A. HOOTMAN
                                             SBN 09965450
                                             2402 Pease St
                                             Houston, TX 77003
                                             713.247.9548
                                             713.583.9523 (f)
                                             E-mail: thootman2000@yahoo.com
                                             ATTORNEY FOR RESPONDENT JEFFREY
                                             GRENDON

                   CERTIFICATE OF WORD COUNT
      I hereby certify that, in accordance with Rule 9.4 of the Texas Rules of

Appellate Procedure, that the number of words contained in this document are

1,062 according to the computer program used to prepare this document.

      Dated: April 2, 2015
                                             /s/Timothy A. Hootman
                                             TIMOTHY A. HOOTMAN

                                       ~7~
                     CERTIFICATE OF SERVICE
      I hereby certify that, in accordance with Rule 9.5 of the Texas Rules of

Appellate Procedure, I have served the forgoing document upon the

following attorneys by electronic service:

            Lisa C. McMinn
            John R. Messinger
            P.O. Box 13046
            Austin, TX 78711
            information@spa.texas.gov

      Dated: April 2, 2015
                                             /s/Timothy A. Hootman
                                             TIMOTHY A. HOOTMAN




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