                                                                                      ACCEPTED
                                                                                 12-14-00296-CR
                                                                     TWELFTH COURT OF APPEALS
                                                                                  TYLER, TEXAS
                                                                          12/26/2014 12:18:52 PM
                                                                                    CATHY LUSK
                                                                                          CLERK

                       Case No. 12-14-00296-CR

                                                                 FILED IN
                                                         12th COURT OF APPEALS
              IN THE TWELFTH COURT OF APPEALS                  TYLER, TEXAS
                                                         12/26/2014 12:18:52 PM
                           TYLER, TEXAS
                                                              CATHY S. LUSK
                                                                  Clerk



                      DAVID MARK DAVIS II,

                                           Appellant,

                                 VS.


                      THE STATE OF TEXAS,

                                          Appellee



On Appeal from the County Court at Law No. 2 of Angelina County, Texas
                       Trial Cause No. 14-1048



             APPELLANT’S REPLY TO STATE’S BRIEF




                                            _________________________
                                            David Mark Davis II
                                            Appellant, Pro Se
                                            11 Glenview Court
                                            Lufkin, Texas 75901
                                            (936) 238-8507
                                            dmarkdavis2@gmail.com



              APPELLANT WAIVES ORAL ARGUMENT

                                  1
                                          PARTIES

ATTORNEY’S FOR THE STATE AT PRE-TRIAL HEARING, PLEA HEARING AND
ON APPEAL:

ED C. JONES, Angelina County Attorney
TX State Bar No. 10873300
Angelina County Attorney’s Office
P. O. Box 1845
Lufkin, Texas 75902-1845
936-639-3929

JAMES YAKOVSKY, Assistant Angelina County Attorney
Assigned as lead attorney on the case at Trial Court level
TX State Bar No. 24030668
Angelina County Attorney’s Office
P. O. Box 1845
Lufkin, Texas 75902-1845
936-639-3929

DEFENDANT - PRO SE

DAVID MARK DAVIS II
11 Glenview Court
Lufkin, Texas 75901
(936) 238-8507

                               CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing Appellant
Brief for David Mark Davis II was delivered via email to Mr. Jones and delivered via USPS to
Mr. Yakovsky.


                                                          _______________________
                                                          David Mark Davis II
                                                          Defendant, Pro Se




                                              2
                                 Table of Contents

Table of Authorities…………………………………………………………………………….3

Appellant’s Response to State’s Brief …………………………………………………………4

State’s Claim that “there was no arrest, no searches and no seizures”…………………………4

Officers Authority to Arrest or Detain………………………………………………………….5

Conclusion………………………………………………………………………………………5

Prayer……………………………………………………………………………………………6

Certificate of Word Count………………………………………………………………………6




                                Table of Authorities

Cases                                                                      Page

United States v. Mendenhall, 446 U.S. 544, 554 (1980)…………………………………………4
Delaware v. Prouse, 440 U.S. 648, 650(1979) ……………………………………….…………..4
Whren v. United States, 517 U.S. 806 (1996)………………………………………….………4, 5
Brendlin v. California, 551 U.S. 249 (2007) …………………………………………/…………5

 US Constitution

U.S. Const. amend. IV ……………………………………………….…………………..…4, 5, 6




                                         3
                              Appellant’s Response to State’s Brief

       On December 26, 2014, the State filed “REPLY BREIF FOR APPELLEE” in this cause.

Davis respectfully submits the following rebuttal to said response:



            State’s Claim that “there was no arrest, no searches and no seizures”

       This claim simply lacks legal merit. The precedent is well established that when the

police cause the reasonable person to feel that they are not free to leave a police encounter, they

have seized that person within the meaning of the Fourth Amendment. See United States v.

Mendenhall, 446 U.S. 544, 554 (1980). The trial court held that Davis was temporarily not free

to leave the police encounter (See RR Vol. II, P. 9) thus Davis satisfied his argument that he was

seized under the standard set forth by the Supreme Court in Mendenhall.

       Furthermore, contrary to the State’s argument, a routine traffic stop has been deemed a

seizure under the Fourth Amendment for nearly half a century. In 1979, the Supreme Court held

that “[s]topping an automobile and detaining its occupants constitute a "seizure" within the

meaning of U.S. Const. amends. IV and XIV, even though the purpose of the stop is limited and

the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 650(1979). In 1996, the

Supreme Court again held “Temporary detention of individuals during the stop of an automobile

by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of

"persons" within the meaning within the meaning of the Fourth Amendment.” Whren v. United

States, 517 U.S. 806 (1996). Even as recent as 2007, the Supreme Court has opined “[w]hen a

police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth

Amendment.” Brendlin v. California, 551 U.S. 249 (2007). Bottom line, the State’s argument no

seizure has occurred is completely contrary to clearly established law.



                                                  4
                                 Officers Authority to Arrest or Detain

       The State claims that various laws allow a law enforcement officer to detain an individual

who the officer witnesses speeding. Davis does not dispute this contention. However, when the

detention is challenged as is the case here, the State has the burden to show the stop was

supported by probable cause. See Whren v. United States, 517 U.S. 806 (1996). In the instant

case, the State called no witnesses and presented no evidence to support the stop was reasonable.

The attorney for the State who did not witness the alleged offense cannot justify a stop on behalf

of the officer by claiming that the Officer’s stop was reasonable. The State had an affirmative

duty to present testimonial or other evidence to support the stop, and it failed to do so.



                                                Conclusion

       Davis established that he was seized within the meaning of the Fourth Amendment when

Officer Carroll conducted the traffic stop related to these proceedings. The trial court took notice

that said traffic stop was effected without a warrant and opined that Davis was not free to leave.

At the point, Davis proved a prima facie case that said traffic stop violated the Fourth Amendment.

The State presented zero evidence to support the trafffic stop, however, the trial court still denied

Davis’ Motion to Suppress. Contrary to the State’s argument, the trial court abused its decretion

when it denied the motion to suppress. The State would not have been able to make a prima facie

case had this evidence been excluded. This conviction cannot be allowed to stand and this Court

must reverse and remand.




                                                  5
                                                  Prayer

       Davis has proven a prima facie case that the State and Lufkin Police Department have

violated his Fourth Amendment right to be free from unreasonable seizures. As such, Davis

prays this Court reverse the conviction and remand the case back to the trial court.

                                                      Respectfully Submitted,



                                                      ______________________________
                                                      David Mark Davis II
                                                      Appellant, Pro Se




                                    Certificate of Word Count

       Relying on the word count function in the word processing software used to produce this

document, I certify that the number of words in this reply (excluding any caption, identity of

parties and counsel, statement regarding oral argument, table of contents, index of authorities,

statement of the case, statement of issues presented, statement of jurisdiction, statement of

procedural history, signature, proof of service, certification, certificate of compliance, and

appendix) is 644.



                                                      ______________________________
                                                      David Mark Davis II
                                                      Appellant, Pro Se




                                                  6
