                                                                      ACCEPTED
                                                                   1-15-00200-CR
                                                       FIRST COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                                             7/17/2015 1:53:03 PM
                                                            CHRISTOPHER PRINE
                                                                           CLERK


       No. 01-15-00200-CR
                                                 FILED IN
                                          1st COURT OF APPEALS
                                              HOUSTON, TEXAS
               IN THE                     7/17/2015 1:53:03 PM
       FIRST COURT OF APPEALS             CHRISTOPHER A. PRINE
                                                  Clerk
           HOUSTON, TEXAS


      KRISTINE MARIE MURRELL,
              Appellant

                  VS.

         THE STATE OF TEXAS,
                 Appellee
      _____________________________

ON APPEAL FROM THE COUNTY CRIMINAL COURT
    NUMBER 14 OF HARRIS COUNTY, TEXAS
             CAUSE NO. 1973306
      ______________________________

     REPLY BRIEF FOR APPELLANT


                 J. Dennis Hester
                 State Bar No. 24065415
                 Cordt C. Akers
                 State Bar No. 24080122

                 COGDELL LAW FIRM, PLLC
                 402 Main, St., 4th Floor
                 Houston, Texas 77002
                 Office:     713-426-2244
                 Facsimile: 713-426-2255

                 ORAL ARGUMENT REQUESTED



                    1
                                 INTRODUCTION

      This is not the typical “totality of the circumstances” case the State portrays

it as. Upholding the trial court’s denial of the motion to suppress will give officers

carte blanche authority to stop and detain motorists based on almost any subjective,

conclusory, or unexplained opinion. The law requires more. Specifically, it

requires articulated facts that support an objectively reasonable suspicion. Castro v.

State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007). The State failed to develop

such facts in this case.

      The justifications for the trial court’s denial of Murrell’s Motion to Suppress

included conclusory opinions that: (1) Murrell was in a neighborhood with a high

concentration of bars, absent any detail concerning the number of bars or the

geographic boundary of the area; and (2) Murrell was traveling at varying or erratic

speeds, without explanation as to how her speed was determined. Meanwhile, the

findings that Murrell was drifting outside her lane and engaging in “evasive” lane

changes are unsupported—even contradicted—by the record and the testifying

officer’s statement that he, “didn’t observe any weaving.” (RR 21.)

      When the conclusory opinions and unsupported findings are stripped away,

the traffic stop at issue is exposed as barebones and lacking reasonable suspicion.

The trial court’s ruling should be reversed.




                                           2
                                       ARGUMENT

1.     The conclusory opinion concerning Murrell’s presence in an area with a
       high number of bars provides no support for reasonable suspicion.

       No evidence supported Deputy Junius Simon’s conclusory testimony that

Murrell was stopped in an area with a high number of bars. The State ignores this

and simply comments that presence in a high bar area is a factor in the totality of

the circumstances. See Appellee’s Br. at 9. That is not the issue.

       Murrell does not argue that presence in an area with numerous bars, where

people commonly drive intoxicated, is not a factor supporting reasonable suspicion.

It is a factor.1 But the problem here is that the hearing produced no evidence

regarding how many bars are in the “area,” no evidence of heightened incidents of

drunk driving in the “area,” and no evidence of borders or boundaries to the “area.”

The court’s finding was, therefore, improperly based on the subjective opinion of

Simon with no supporting facts. Castro, 227 S.W.3d at 742.

       Like presence in a high crime area, presence in an area with a high number

of bars requires some supporting evidence, including geographic boundaries, so

that an entire neighborhood is not designated as a zone where constitutional

liberties are significantly lessened. See United States v. Montero–Camargo, 208

F.3d 1122, 1138 (9th Cir. 2000) (en banc) (“We must be particularly careful to


1
       Murrell has already acknowledged that, as a matter of law, presence in a high bar area
can be a factor in the analysis. See Appellant’s Br. at 11, fn. 3.

                                               3
ensure that a ‘high crime’ area factor is not used with respect to entire

neighborhoods or communities . . . but is limited to specific, circumscribed

locations where particular crimes occur with unusual regularity.”)

      Some questions that the State could, and should, have asked Simon in an

effort to satisfy its burden were:

          • How many bars are in the area?

          • What are the geographic boundaries of the area?

          • How many drunk driving arrests have you made there?

They abjectly failed to do so.

      Without such evidence or testimony, Simon’s “high bar area” spans, for all

we know, the entire city of Houston. Or suppose that, in Simon’s subjective

opinion, three bars within four miles of one another makes a 10 square mile area a

“high bar area.” Would such a conclusion be objectively reasonable? Almost

certainly not, but Simon very well could have based the stop on such an opinion

because we do not know the makeup of his “high bar area.”

      Ignoring this problem, the State cites Foster v. State, 326 S.W.3d 609, 613

(Tex. Crim. App. 2010), and answers that driving in an area where many bars are




                                           4
located is a factor supporting reasonable suspicion.2 Indeed it is, but again, that is

not the issue.

       Foster, moreover, demonstrates Murrell’s point that an officer’s subjective

belief that an area contains a high number of bars is worthless without supporting

facts. In Foster, there was evidence that the appellant was stopped in a “bar district

where police ha[d] made numerous DWI arrests.” Id. at 613. The bar district was

identified as Sixth Street in Austin, Texas, which is nationally know as an area

with a high number of bars. And the officer testified that, in his experience, “it is

common for many people to be impaired in Austin’s Sixth Street bar district late at

night.” Id. at 611. There was no such testimony here, and nothing except the

officer’s conclusion that there were, “several” bars and restaurants near the “area.”

(RR 9.) As a conclusory opinion bereft of supporting facts, the finding that Murrell

was in a high bar area provides no cause for reasonable suspicion.

2.     The conclusory opinions concerning Murrell’s varying speed provide no
       support for reasonable suspicion.

       The State admits that, under Castro, conclusory opinions pertaining to an

officer’s subjective determinations—such as “the defendant was driving too fast,”

or “the defendant was intoxicated”—are entitled to no weight. Appellee’s Br. at

11; Castro, 227 S.W.3d at 742 (identifying “[f]ollowing too closely, speeding, and


2
        Another case cited by the State did not involve a defendant alleged to be in a high bar
area. See Curtis v. State, 238 S.W.3d 376, 380 (Tex. Crim. App. 2007).

                                                 5
being intoxicated,” as subjective determinations that require more than conclusory

statements of opinion). Yet, the State proclaims, the trial court could rely on

Simon’s testimony that Murrell was changing speeds without any explanation of

how the determination was made. That is incorrect.

      Castro teaches that a stop based on a vehicle’s speed, and logically a

vehicle’s changing speeds, is a subjective determination of the officer. 227 S.W.3d

at 742. As a subjective determination, there must be supporting facts that explain

how Murrell’s speed was determined. Id.; cf. Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005) (“probable cause must be based on facts, not opinions.”)

This record offers none.

      Instead of pointing to record evidence that explains how Murrell’s speed was

determined, the State argues that the trial court “could infer” that Simon paced

Murrell. Appellee’s Br. at 10. But the court’s written findings of fact and

conclusions of law contain no such inference. (CR 59-61.) And the purpose of

written findings is precisely so this Court does not make assumptions regarding the

trial court’s reasoning. State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App.

2006). Indeed, it would be improper for this court to consider matters outside the

trial court’s written findings. Arnold v. State, 793 S.W.2d 305, 308 (Tex. App.—

Austin 1990) (citing Gulf Land Co. v. Atl. Ref. Co., 134 Tex. 59, 77 (1939)).




                                          6
       So even if the judge below could have inferred that Simon was pacing

Murrell, his written findings tell us he did not. Instead, the trial court improperly

based its finding on speed changes purely on the subjective opinion of Simon with

no supporting facts.

3.     The trial court’s finding that Murrell was drifting outside of her lane is
       not supported by, and conflicts with, Simon’s testimony.

       The State and Murrell agree that the record does not support the finding that

Murrell was “drifting within her lane.” Appellee’s Br. at 13, fn. 3. The State,

however, argues that the record supports the court’s finding that Murrell was

drifting outside of her lane, though it admits that Simon never said she was drifting.

Id. at 12.

       To this point, the State relies on Simon’s testimony that generally describes

behavior he has witnessed before—where an intoxicated driver, “start[s] to swerve,

[then] they’ll turn on their signal light, go ahead and move into that lane that they

were swerving into to mask the swerve.” Appellee’s Br. at 12-13 (citing RR 8-9).

The officer’s report did not claim that Murrell engaged in such lane changes. (RR

24.) And when he testified at Murrell’s Administrative License Revocation hearing,

Simon never claimed Murrell made frequent lane changes. (RR 17.)

       But more importantly, Simon never testified that Murrell’s lane changes

constituted “swerve masking” behavior. He simply stated that he had seen others

“mask” swerves by signaling just prior to swerving into an adjacent lane. (RR 8-9.)

                                           7
      And further to this point, direct testimony established that Simon did not see

Murrell swerving, drifting, or weaving—whichever we choose to call failing to

maintain a lane of traffic. Simon testified: “I didn’t observe any weaving.” (RR

21.) The trial court’s finding to the contrary is unsupported.

4.    There was no basis for the trial court’s finding that Murrell’s lane
      changes were “evasive.”

      Similarly, the trial court cited no factual basis for, and the record contains no

basis for, a finding that Murrell’s lane changes were “evasive.” (CR 59-61.) There

are a host of reasons why Murrell could have been frequently changing lanes other

than evading the officer. See Hernandez v. State, 983 S.W.2d 867, 870 (Tex.

App.—Austin 1998) (“drifting” across a lane marker did not establish reasonable

suspicion of intoxication because there are a “myriad of reasons” why a person

might drift).

      Moreover, Simon’s description of behavior he had seen before, where a

driver will signal just before swerving into an adjacent lane was never described as

“evasive” to avoid an officer. (RR 8-9.) Instead, it was something that Simon

claimed drivers do to mask a swerve. This record contains no evidence, or

suggestion, that Murrell was trying to evade the officer. The trial court’s finding is

unsupported.




                                          8
5.    With or without the conclusory and unsupported facts, the stop is not
      supported by reasonable suspicion.

      The permissible factors to consider here are that an inexperienced officer

observed Murrell change lanes frequently while signaling. This is insufficient to

establish reasonable suspicion. Cf. Bass v. State, 64 S.W.3d 646, 649-50 (Tex.

App.—Texarkana, 2001) (no reasonable suspicion where only factor was that the

officer followed and observed defendant “swerving within his lane”).

      But even if the conclusory opinions and the factors unsupported by the

record were considered, they do not comprise reasonable suspicion. For example,

in White v. State, there was insufficient reasonable suspicion for a driving while

intoxicated traffic stop when the defendant was seen a quarter mile from a bar at

1:22 a.m., traveling below speed limit, “drifting within his lane,” and making a

series of sudden lane changes while signaling. No. 2-07-234-CR, 2008 WL

1867139, at *3 (Tex. App.—Fort Worth, Apr. 24, 2008, pet. ref’d). This case

contains similar facts.

       In another case, the Second Court of Appeals found no reasonable suspicion

for a driving while intoxicated stop though there were many more factors than in

this case. State v. Palmer, No. 2-03-526-CR, 2005 WL 555281, at *2-3 (Tex.

App.—Fort Worth, Mar. 10, 2005, pet. dismissed). There, the defendant was

observed: (1) in early morning hours, near local bars; (2) driving five miles per

hour below the speed limit; (3) driving in an entrance ramp lane; (4) signaling his

                                          9
intention to turn right when there was nowhere to turn; (5) applying his brakes in a

sudden and unsafe manner; (6) swerving over lane markers; (7) driving partially

into the right-turn-only lane before rolling into the go-straight lane; and (8)

hesitating before proceeding through a green light. Id.

      Finally, in a case before the Fifth Court of Appeals, there were insufficient

facts for reasonable suspicion where a concerned citizen called the police to report

drunk driving, the defendant was driving 10 to 15 miles-per-hour under the speed

limit, and the defendant made an evasive maneuver that could have been an

attempt to avoid the officer. Waller v. State, No. 05-09-00097-CR, 2009 WL

4642850, at *1, 5 (Tex. App.—Dallas, Dec. 9, 2009).

      Murrell’s driving was less suspicious than each of these cases. Thus, even if

the trial court’s unjustified findings are considered, this stop lacked reasonable

suspicion.

                                   CONCLUSION

      Most of the trial court’s reasons for denying Murrell’s motion to suppress

were based on conclusory facts or facts unsupported by the record. When those

reasons are excised, the only basis for the stop is Murrell’s lawful lane changes

while signaling, which is insufficient.

      However, even if all of the facts are considered, there was still not sufficient

reasonable suspicion for the stop.



                                          10
       This Court should reverse the trial court’s ruling denying Murrell’s motion

to suppress evidence, vacate the judgment of conviction, and remand this case to

the trial court.

                                              Respectfully submitted,

                                              COGDELL LAW FIRM, PLLC

                                              /s/ Dennis Hester
                                              J. Dennis Hester
                                              State Bar No. 24065415

                                              /s/ Cordt Akers
                                              Cordt C. Akers
                                              State Bar No. 24080122

                                              402 Main St., 4th Floor
                                              Houston, Texas 77002
                                              (713) 426-2244
                                              (713) 426-2255 (Fax)
                                              dennis@cogdell-law.com
                                              cordt@cogdell-law.com

                                              Attorneys for the Appellant




                                         11
                         CERTIFICATE OF SERVICE

      I hereby certify that on July 17, 2015, a true and correct copy of the

foregoing Reply Brief was served upon Kimberly Stelter, the Assistant District

Attorney assigned to this case from the Harris County District Attorney’s Office

via electronic mail to stelter_kimberly@dao.hctx.net.

                                                           /s/ Dennis Hester


                      CERTIFICATE OF COMPLIANCE

      I certify, in accordance with TEX. R. APP. PRO. 9.4(i), that this Reply Brief

contains 2,089 words excluding caption, signatures, proof of service, and

certificate of compliance.

                                                           /s/ Dennis Hester




                                         12
