                       CASE NO. PD-1335-16
__________________________________________________________________

               IN THE COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS
__________________________________________________________________

                           STATE OF TEXAS

                                V.
                    ALBERT TYRONE BERNARD
__________________________________________________________________

                  On Petition for Discretionary Review from
                      The Fourteenth Court of Appeals
       In No. 14-15-00822-CR Affirming the Trial Court’s Judgment in
                  On Appeal from Cause No. MD-0348570
                   County Court at Law Number Three (3)
                           Galveston County, Texas
                         Hon. Jack Ewing, Presiding
__________________________________________________________________

                   RESPONSE TO THE STATE’S
             PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________


                                       DAN KRIEGER
                                       215 East Galveston Street
                                       League City, Texas 77573
                                       (281) 486-8125 x2 Phone
                                       (281) 332-7877 Facsimile
                                       dan@kriegerlawfirm.com
       December 23, 2016

                                       ATTORNEY FOR APPELLEE,
                                       ALBERT TYRONE BERNARD




                   ORAL ARGUMENT REQUESTED
                    IDENTITY OF PARTIES AND COUNSEL

Appellant:                    State of Texas

Appellee:                     Albert Tyrone Bernard

Trial Counsel for             Lindsay Richards
Appellant:                    State Bar No. 24086198
                              600 59th Street, Suite 1001
                              Galveston, Texas 77551
                              Telephone: (409) 770-5136

Appellate Counsel             Jessica Ebbs
for Appellant at Court        State Bar No. 24095335
of Appeals:                   600 59th Street, Suite 1001
                              Galveston, Texas 77551
                              Telephone: (409) 770-5136

Appellate Counsel             Stacey M. Soule
for Appellant at Court        P.O. Box 13046
Of Criminal Appeals:          Austin, Texas 78711

Trial and Appellate Counsel   Dan Krieger
for Appellee :                State Bar No. 24064243
                              215 E. Galveston Street
                              League City, Texas 77573
                              (281) 486-8125 (Telephone)
                              (281) 332-7877 (Facsimile)
                              dan@kriegerlawfirm.com

Trial Judge:                  Honorable Jack Ewing




                                      ii
                                             TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................ ii

TABLE OF CONTENTS ............................................................................................. iii

INDEX OF AUTHORITIES ........................................................................................ v

RESPONSE TO GROUNDS PRESENTED FOR REVIEW ...................................... 1

ARGUMENT ............................................................................................................... 2

PRAYER ...................................................................................................................... 4

CERTIFICATE OF SERVICE .................................................................................... 5
CERTIFICATE OF COMPLIANCE ........................................................................... 5




                                                               iii
                                     INDEX OF AUTHORITIES
                                       STATE COURT CASES


Guzman v. State,
    955 S.W.2d 85, 89 (Tex. Crim. App. 1997). ................................................... 2

State v. Bernard,
      __ S.W.3d__, No. 14-15-00882-CR, 2016 Tex. App. LEXIS 12018, *9
       (Tex. App.—Houston [14th Dist.] 2016). ...................................................... 3

State v. Iduarte,
         268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008)...................................... 3

Valtierra v. State,
      310 S.W.3d 442, 447 (Tex. Crim. App. 2010). ............................................. 3

Vasquez v. State,
    389 S.W.3d 361, 370 (Tex. Crim. App. 2012). ................................................ 3


                                    STATUTES
Tex. Transp. Code § 545.060(a) ............................................................................... 1




                                                       iv
                       CASE NO. PD-1335-16
__________________________________________________________________

               IN THE COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS
__________________________________________________________________

                         STATE OF TEXAS
                                       , Appellant
                                V.
                    ALBERT TYRONE BERNARD
                                        , Appellee
__________________________________________________________________

                RESPONSE TO STATE’S PETITION
                  FOR DISCRETIONARY REVIEW
__________________________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Appellant respectfully responds to the State’s Petition for Discretionary

Review and urges the Court to decline discretionary review of this case.

              STATEMENT REGARDING ORAL ARGUMENT

      Appellee requests oral argument of this matter should the Court grant

discretionary review of this case in order to: 1) provide the Court a more complete

understanding of the facts of the appeal; 2) to allow the Court to explore and better

analyze the complicated legal issues presented in this appeal; and 3) to aid the Court

in deciding the matter.

                  RESPONSE TO GROUNDS FOR REVIEW
1.    The Fourteenth Court of Appeals properly applied the binding authority
      to the decision of the matters in the case.


                                          1
2.    The Fourteenth Court of Appeals properly upheld the suppression of the
      stop based on the trial court’s finding of facts and their independent
      review of the case and dashcam video.

                                     ARGUMENT

      The Fourteenth Court of Appeals properly affirmed the lower court in this

matter. The trial court properly suppressed the traffic stop because the deputy

stopped Appellee without reasonable suspicion. In making it’s finding of facts, the

trial court noted several specific reasons that turned specifically on the credibility

and demeanor of the witnesses. It further found that Appellee was not driving in an

unsafe manner to any other vehicles on the road and no reasonable suspicion of

violating Texas Transportation Code 545.060(a) existed at the time of the stop.

These findings were supported by both officer testimony and the both the trial and

appellate courts’ review of the deputy’s dashcam video. The findings of fact also

support the suppression of the stop as there were no specific articulable facts that

would have supported a reasonable suspicion to stop Appellee for suspicion of

driving while intoxicated.

1.    The Fourteenth Court of Appeals properly applied the binding authority
      to the decision of the matters in the case.

      It is well established that the appellate courts give almost total deference to

the trial court’s determination of the historical facts that are supported by the record.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Here, the trial judge



                                           2
made express findings of fact, which were supported by the evidence in the case.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

      It is also well-established that the appellate courts will uphold the trial court’s

ruling if it is supported by the record and correct under any theory of law applicable

to the case. State v. Iduarte, 268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008). In the

instant case, the panel reviewed the testimony of the deputies in the case as well as

the dashcam video of the stop and found nothing to contradict the trial court’s

findings. State v. Bernard, __ S.W.3d__, No. 14-15-00882-CR, 2016 Tex. App.

LEXIS 12018, *9 (Tex. App.—Houston [14th Dist.] 2016).

      Plurality opinions do not constitute binding authority. Vasquez v. State, 389

S.W.3d 361, 370 (Tex. Crim. App. 2012). Here, the panel correctly applied the

authoritative jurisprudence with the specific findings of fact and conclusions of law

and properly affirmed the trial court’s suppression of the stop.

2.    The Fourteenth Court of Appeals properly upheld the suppression of the
      stop based on the trial court’s finding of facts and their independent
      review of the case and dashcam video.

      Appellate courts will uphold the trial court’s ruling if it is supported by the

record and correct under any theory of law applicable to the case. State v. Iduarte,

268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008). In the instant case, the panel

reviewed the testimony in the case as well as the dashcam video of the stop and

found nothing to contradict the trial court’s findings. Bernard, 2016 Tex. App.


                                           3
LEXIS 12018, *9. Based on the trial court’s findings of fact, in conjunction with

the panel’s review of the testimony and the dashcam video entered as evidence in

the case, there were no specific facts that would establish reasonable suspicion to

stop Appellee for driving while intoxicated. To the contrary, Officer Watson stated

she wanted to conduct a “welfare check” on the driver, however, no facts were

presented to establish any prongs of a community caretaking function stop during

the case. Id. at *7. No motion for rehearing was requested on the matter. Pet. PDR

at 2.

                                     PRAYER

        For the reasons stated in this response to the State’s Petition for Review,

Respondent requests the Court deny this petition for review.

                                                   Respectfully submitted,
                                                   /s/ Dan Krieger
                                                   Dan Krieger
                                                   State Bar No: 24064243
                                                   215 E. Galveston
                                                   League City, Texas 77573
                                                   (281) 332-7630
                                                   (281) 332-7877 facsimile
                                                   dan@krieger-ongert.com




                                         4
                      CERTIFICATE OF COMPLIANCE

      I certify that this document was produced on a computer using Microsoft

Word and contains 1,329 words, as determined by the computer software's word-

count function, excluding the sections of the document listed in Texas Rule of

Appellate Procedure 9.4(i)(1).

                                      /s/ Dan Krieger
                                          Dan Krieger

                         CERTIFICATE OF SERVICE

      A true and correct copy of the above and foregoing document has been

forwarded to the following persons, in accordance with the TEXAS RULES OF

APPELLATE PROCEDURE, on the 22nd day of December, 2016:



            Stacey M. Soule
            Assistant State Prosecuting Attorney
            P.O. Box 13046
            Austin, Texas 78711


                                      /s/ Dan Krieger
                                          Dan Krieger




                                         5
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  Case # PD-1335-16
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             12/23/2016 12:13:51 AM
   Case Number                            PD-1335-16
   Case Description
   Assigned to Judge
   Attorney                               Daniel Krieger
   Firm Name                              Krieger & Ongert
   Filed By                               Daniel Krieger
   Filer Type                             Not Applicable
   Fees
   Convenience Fee                        $0.00
   Total Court Case Fees                  $0.00
   Total Court Party Fees                 $0.00
   Total Court Filing Fees                $0.00
   Total Court Service Fees               $0.00
   Total Filing & Service Fees            $0.00
   Total Service Tax Fees                 $0.00
   Total Provider Service Fees            $0.00
   Total Provider Tax Fees                $0.00
   Grand Total                            $0.00
   Payment
   Account Name                           visa
   Transaction Amount                     $0.00
   Transaction Response
   Transaction ID                         22900499
   Order #

   Reply to Petition for Discretionary Review
   Filing Type                                         EFileAndServe
   Filing Code                                         Reply to Petition for Discretionary Review
   Filing Description                                  Reply to State's Petition for Discretionary Review
   Reference Number
   Comments
   Status                                              Rejected
   Fees
   Court Fee                                           $0.00
   Service Fee                                         $0.00
   Rejection Information
   Rejection Time       Rejection Comment
   Reason
             12/23/2016 Appellee was granted an extension to file his response to the state prosecuting


https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=87ca8d0c-b4f6-4b12-bb2a-e4aeb3138527[12/23/2016 2:15:49 PM]
Envelope Details

   Other   02:14:09              attorney's petition for discretionary review; the due date to file response was
           PM                    extended to December 22, 2016. This filing is untimely.
   Documents
   Lead Document                          Reply to States Petition for Discretionary Review.pdf                                  [Original]


   eService Details
                                                                                                                            Date/Time
   Name/Email                                  Firm                      Service Type            Status       Served
                                                                                                                            Opened
   Jessica Ebbs                                                          EServe                  Sent         Yes           Not Opened
   jessica.ebbs@co.galveston.tx.us
   Dan Krieger                                                           EServe                  Sent         Yes           Not Opened
   dan@kriegerlawfirm.com
                                               Texas State
   Stacey Soule                                                                                                             12/23/2016
                                               Prosecuting               EServe                  Sent         Yes
   stacey.soule@spa.texas.gov                                                                                               09:09:33 AM
                                               Attorney




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