                                                                                     ACCEPTED
                                                                                 01-15-00246-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           10/21/2015 8:17:17 AM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                        NO. 01-15-00246-CR
                              IN THE
                                                               FILED IN
                                                        1st COURT OF APPEALS
                       COURT OF APPEALS                     HOUSTON, TEXAS
                     FIRST JUDICIAL DISTRICT            10/21/2015 8:17:17 AM
                                                        CHRISTOPHER A. PRINE
                        HOUSTON, TEXAS                           Clerk

__________________________________________________________________
                  DORSEY NATHANIEL CARR, III,
                                                               FILED IN
                           Appellant                    1st COURT OF APPEALS
                                                            HOUSTON, TEXAS
                                Vs.                     10/21/2015 8:17:17 AM
                                                        CHRISTOPHER A. PRINE
                      THE STATE OF TEXAS,                        Clerk

                             Appellee
__________________________________________________________________
                  ON APPEAL IN CAUSE NO. 74,219
    239th JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS
         HONORABLE PATRICK SEBESTA, JUDGE PRESIDING
__________________________________________________________________

                      BRIEF FOR THE STATE
__________________________________________________________________

JERI YENNE                            DAVID BOSSERMAN
CRIMINAL DISTRICT ATTORNEY            Assistant Criminal District Attorney
BRAZORIA COUNTY, TEXAS                111 E. Locust, Suite 408A
                                      Angleton, Texas 77515
                                      (979) 864-1230
                                      (979) 864-1525 (Fax)
                                      Bar Card No. 02679520
                                      davidb@brazoria-county.com

ATTORNEYS FOR APPELLEE                Oral Argument is Not Requested
DATE: OCTOBER 21, 2015
                              NO. 01-15-00246-CR
                                     IN THE
239TH JUDICIAL DISTRICT COURT                 §    COURT OF APPEALS
OF                                            §    FIRST JUDICIAL DISTRICT
BRAZORIA COUNTY, TEXAS                        §    HOUSTON, TEXAS
                       DORSEY NATHANIEL CARR, III,
                                    Appellant
                                       Vs.
                            THE STATE OF TEXAS,
                                     Appellee
__________________________________________________________________

                    BRIEF FOR THE APPELLEE
__________________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
      The State of Texas, the prosecuting authority in Cause No. 74,219 in the

239th Judicial District Court of Brazoria County, Texas, respectfully submits this

brief in reply to the brief of Defendant-Appellant, DORSEY NATHANIEL CARR,

III, and would respectfully show the Court the following:




                                         ii
                                              SUBJECT INDEX

Parties To The Case................................................................................................iv
List of Authorities....................................................................................................v
Statement Of The Case............................................................................................1
Statement Of Facts..................................................................................................1
Summary Of Argument..........................................................................................6
   First Point of Error..............................................................................................6
   Second Point of Error..........................................................................................7
STATE’S REPLY TO APPLEANT’S FIRST POINT OF ERROR...................8
   The Appellant claims trial counsel was ineffective in failing to file
   a motion to suppress the stop, claiming there was no reasonable
   suspicion to justify it. There was reasonable suspicion to justify
   the stop and trial counsel was not ineffective in failing to file
   a motion to suppress the stop..............................................................................8
DISCUSSION...........................................................................................................8
   Ineffective Assistance – Standard of Review......................................................8
   Ineffective Assistance by Failure to Present Motion to Suppress...................10
   Investigative Detention......................................................................................11
   Analysis..............................................................................................................13
   Burden to Show Prejudice from the Record.....................................................18
STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR.........20
   The Appellant claims that the evidence in the record of the
   Appellant’s ability to pay his attorney fees was insufficient
   to support the assessment of these fees against him. The
   State concedes error...........................................................................................20
DISCUSSION.........................................................................................................20
CONCLUSION......................................................................................................21
CERTIFICATE OF COMPLIANCE..................................................................22
CERTIFICATE OF SERVICE............................................................................22




                                                            iii
                             PARTIES TO THE CASE
APPELLANT:                 DORSEY NATHANIEL CARR, III

Attorney for Appellant at Trial:

             Name:         Laura Dagley Dowdy
             Address:      801 Congress, Ste. 400
                           Houston, TX 77002

Attorney for Appellant on Appeal:

             Name:         John Davis
             Address       P.O. Box 787
                           Angleton, TX 77516-0787

APPELLEE:                  THE STATE OF TEXAS

Attorney for the State at Trial:

             Name:         Aaron Perry, Lilian Martinez
             Address:      Brazoria County Criminal District Attorney’s Office
                           Brazoria County Courthouse
                           111 E. Locust, Suite 408A
                           Angleton, Texas 77515
                           (979) 864-1230
                           (979) 864-1525 (Fax)

Attorney for the State on Appeal:

             Name:         David Bosserman
                           Assistant Criminal District Attorney
             Address:      Brazoria County Criminal District Attorney’s Office
                           Brazoria County Courthouse
                           111 E. Locust, Suite 408A
                           Angleton, Texas 77515
                           (979) 864-1230
                           (979) 864-1525 (Fax)
                           davidb@brazoria-county.com



                                         iv
                                        LIST OF AUTHORITIES

Cases


Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) .................................... 10, 18
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) ..........................12
Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001), cert. denied,
  123 S.Ct. 1351 (2003).........................................................................................10
Hathorn v. State, 848 S.W.2d 101 (Tex. Crim. App. 1992), cert. denied,
  113 S.Ct. 3062 (1993) ............................................................................................9
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) .................................8
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 124 S.Ct. 2451,
  159 L.Ed.2d 292 (2004)........................................................................................11
In re Daniel, 396 S.W.3d 545 (Tex. Crim. App. 2013)..........................................21
Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994) ......................................9
Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998) ....................................10
Kesaria v. State, 148 S.W.3d 634 (Tex. App. - Houston [14th Dist.]
  2004), aff’d, 189 S.W.3d 270 (2006) .....................................................................9
Louis v. State, 825 S.W.2d 752 (Tex. App. - Houston [14th Dist.]
  1992, pet. ref'd) .....................................................................................................16
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) .......................................20
McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992), overruled on
  other grounds, 915 S.W.2d 9 (1994), cert. denied, 113 S.Ct. 2937 (1993) ...........9
Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002)......................................10
Mount v. State, 217 S.W.3d 716 (Tex. App. - Houston
  [14th Dist.] 2007, no pet.) ....................................................................................16




                                                            v
Orsag v. State, 312 S.W.3d 105 (Tex. App. – Houston [14th Dist.]
  2010, pet. ref’d) ....................................................................................................15
Roberson v. State, 852 S.W.2d 508 (Tex. Crim. App. 1993)..................................10
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013).....................................9
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) .8
Terrell v. State, ___ S.W.3d ___, No. 14-14-00390-CR, 2015 WL 4594054,
  at (Tex. App. – Houston [14th Dist.] July 30, 2015, no pet.)...............................11
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ................................9, 18
Wert v. State, 383 S.W.3d 747 (Tex. App. – Houston [14th Dist.]
  2012, no pet.) ................................................................................................11, 18


Codes
Tex. Crim. Proc. Code Ann. Art. 26.05 (Vernon Supp. 2013)...........................20




                                                           vi
                         STATEMENT OF THE CASE

      The Appellant was indicted for the offense of felony driving while

intoxicated, enhanced (CR 1 at 5). After hearing the evidence and the argument of

counsel, the jury found him guilty as charged beyond a reasonable doubt (CR 1 at

43, 53, 54; RR 5 at 51-52). At the punishment phase, the State admitted evidence

of several prior convictions for driving while intoxicated. The Jury assessed

punishment at 10 years imprisonment (CR 1 at 50, 53, 54; RR 6 at 5).

                           STATEMENT OF FACTS

      The evidence showed the Appellant was stopped after a citizen called the

police to report his reckless driving. Based on personal observation and field

sobriety tests, Officers determined he was intoxicated. This was further confirmed

by a blood test.

      On July 20, 2014, Jordan Brooks was driving back to his house in Angleton

from Surfside beach with his wife and children, a six and seven year old. He was

driving on Highway 523 (RR 3 at 25-27). A red van came up behind them and

almost rear-ended their car. The driver of the van then drove around them. When

he came back into his lane of travel, the Appellant almost clipped the front of their

vehicle. The van then went off the road and came back. When the driver came back

on the road, he went into oncoming traffic, almost hit another car head on, and then

swerved back into his lane. Mr. Brooks felt it was best to drive around this vehicle



                                         1
and just get away from him (RR 3 at 27, 28). This occurred at about 6:00 pm. The

driver of the van was a white male (RR 3 at 28, 35, 36). There was only one person

in the van. The van was a nineties model red Plymouth or Chrysler van. Mr.

Brooks was not able to get a license plate (RR 3 at 28).

      The reckless driver drove down Highway 523 towards Angleton and then

turned at Stratton Ridge Road toward Clute. When he made this turn, he did not

slow down, and his van almost flipped (RR 3 at 28, 29). Stratton Ridge Road is

also known as Highway 226 (RR 3 at 38). Mr. Brooks called 911 when the

Appellant first recklessly passed him. He did not want anyone to get hurt,

including himself or his family (RR 3 at 29). The State admitted the 911 call as

State’s exhibit one (RR 3 at 30).

      In State’s exhibit one, Mr. Brooks describes the vehicle as a nineties model

red Chrysler minivan (RR at SX1 at 1:28). He told dispatch that the driver was on

Highway 523; had just turned onto Stratton Ridge Road; and was driving toward

Clute (RR at SX1 at :55, 1:10, 1:40, 2:30). He only made reference to a single

driver with no reference to any passengers (RR at SX1).

      On July 20, 2014, around 6:00 or 6:30 pm, Patrol Officer Edward Burnett

with the Clute Police Department was notified by dispatch of a reckless driver in a

red minivan traveling into Clute from Stratton Ridge Road (RR 3 at 130-132). He

did not remember all the details as to how dispatch described the vehicle (RR 3 at



                                         2
159). While on Main Street, he saw two vehicles matching the description given

him by dispatch. Stratton Ridge Road becomes Main Street. He first drove to the

vehicle which pulled into a convenience store because the other vehicle was

heading towards the police station (RR 3 at 133). However, the vehicle at the

convenience store was driven by a Hispanic male with two children, so he

immediately knew it was the wrong vehicle (RR 3 at 133). He did not talk to this

driver more than 10 to 15 seconds (RR 3 at 156). He then double backed toward

the other vehicle and saw it pulling into a bar. The bar was about a block and a half

to two blocks from where he first saw the two red vans (RR 3 at 163, 164).

Sergeant Soley, who he had been in radio contact with, pulled in first (RR 3 at 134,

135, 157). Officer Soley came in contact with the Appellant and gave him

standardized field sobriety tests (RR 3 at 138). Officer Burnett later transported the

Appellant to Brazosport Hospital for a blood draw (RR 3 at 139). The Appellant

voluntarily gave his consent for the blood draw. He signed the consent form which

was admitted into evidence (RR 3 at 140-145). Nurse Anel Casas drew the

Appellant’s blood (RR 3 at 145, 150, 151, 169-173).

      Patrol Sergeant Jessie Soley with the Clute Police Department received a

dispatch of a report of a reckless driver that had turned onto Stratton Ridge Road

coming into Clute (RR 3 at 49). This was on July 20, 2014. Around 6:30 pm he

came in contact with a nineties model red Plymouth or Dodge minivan (RR 3 at



                                          3
46-48, 76, 77). This matched the description given to him by dispatch (RR 3 at 49,

112). It was driven by a white male, which also matched the information given him

by dispatch (RR 3 at 112). Sergeant Soley identified the Appellant as the driver of

the vehicle (RR 3 at 48). The video from his patrol unit of the incident was

admitted as State’s exhibit three (RR 3 at 73, 74).

      When the Sergeant made contact with the Appellant, he was getting out of

the driver’s seat of the vehicle. The Appellant was the only person in the vehicle.

The Appellant told him he was coming from Surfside beach (RR 3 at 49, 50, 76);

(RR at SX3 at :30, 1:55). When asked if he had been driving recklessly earlier, he

stated that he did not know, but then denied it (RR 3 at 51); (RR at SX3 at 1:00).

The Appellant had a strong odor of alcohol coming from his person; his speech

was very slurred; his balance unstable; and his eyes were red and bloodshot. He

admitted that he drank 5 beers (RR 3 at 52, 53); (RR at SX3 at 1:25). He agreed to

do field sobriety testing (RR 3 at 54, 55); (RR at SX3 at 3:00).

      The Appellant had difficulty with the sobriety tests. First, he did not

complete the horizontal gaze nystagmus test. The Sergeant believed this is because

of lack of cooperation, but he was not sure. The Appellant would not focus on the

Officer’s pen during the test even though the Officer tried to administer the test

repeatedly (RR 3 at 56, 59) (RR at SX3 at 3:55). The Appellant had earlier

indicated problems with his eyes (RR 3 at 55). When the Appellant attempted the



                                          4
walk and turn test, he lost his balance during the instructional phase; said he was

not able to do the test; and stopped (RR 3 at 60-62) (RR at SX3 at 5:30). During

the one legged stand test, he lifted his right foot off the ground about 3 inches;

immediately put it back down; and said that he couldn't do the test (RR 3 at 62, 63)

(RR at SX3 at 6:30). When asked to recite the alphabet, the Appellant left out a

letter (RR 3 at 64) (RR at SX3 at 7:15). Sergeant Soley then placed the Appellant

into custody. After the test, the Sergeant asked him how intoxicated he believed

himself to be on a scale of one to 10 and he answered that he was a 6 or 7 (RR 3 at

65) (RR at SX3 at 8:00). In the Officer’s opinion, the Appellant was intoxicated

(RR 3 at 66, 67, 78, 79).

      The Appellant was transported to the station, given his DIC-24 warnings,

and there consented to give a blood sample (RR 3 at 66-69, 72). The Sergeant

asked for a blood sample rather than a breath test because it is difficult to get an

intoxilyzer operator to the jail to conduct a breath test (RR 3 at 91). Officer Burnett

transported Appellant to Brazosport Regional Hospital for the blood draw (RR 3 at

77). When the Appellant was brought back from blood draw, he urinated on the

floor in the holding cell even though he had been allowed to use the restroom

shortly before the blood draw (RR 3 at 78).

      Paul Van Dorn, who works as director for the Brazoria County Sheriff's

Office Crime Laboratory, did the analysis of the Appellant’s blood (RR 4 at 10-



                                          5
13). He determined the Appellant’s ethanol level to be 0.255 grams per 100

milliliters of blood, which is over three times the legal limit in Texas. In his

opinion, the Appellant was intoxicated (RR 4 at 17, 18).

                          SUMMARY OF ARGUMENT

First Point of Error

      The Appellant claims trial counsel was ineffective in failing to file a motion

to suppress because he contends there was no reasonable suspicion to justify the

stop of his vehicle. He specifically claims that there was insufficient evidence to tie

in the Appellant with observations by a citizen witness that he was driving

recklessly. Trial counsel was not ineffective. The Appellant cannot meet his burden

to show prejudice because the Officer involved had reasonable suspicion to make

the stop. The evidence at trial showed:

      1) A civilian, Jordan Brooks, observed a red 1990 model Plymouth or

Chrysler van being driven recklessly by a white male, who was by himself, at

approximately 6:00 pm on July 20, 2014.

       2) Mr. Brooks observed the van driving on Highway 523 towards Angleton

and turning onto Stratton Ridge Road toward Clute.

      3) The van almost rear ended Mr. Brook’s vehicle; almost clipped his

vehicle when it passed; ran off the road; drove back into oncoming traffic; almost




                                          6
hit another vehicle head on; then almost flipped when it turned onto Stratton Ridge

Road.

        4) Mr. Brooks called 911, telling them of the reckless driving. He described

the vehicle as a nineties model red Chrysler minivan; which had just turned onto

Stratton Ridge Road; and was driving toward Clute.

        5) On July 20, 2014, around 6:00 or 6:30 pm, Patrol Officer Edward Burnett

with the Clute Police Department was notified by dispatch of a reckless driver in a

red minivan traveling into Clute from Stratton Ridge Road. While on Main Street,

which becomes Stratton Ridge Road, he observed the Appellant’s vehicle, which

met this description. The vehicle pulled into the parking lot of a bar. Sergeant

Soley, who Officer Burnett had been in radio contact with, pulled in the bar and

made contact with the Appellant. This contact subsequently resulted in the

Appellant’s arrest for the instant offense. The Appellant cannot show ineffective

assistance by not filing a motion to suppress because there was reasonable

suspicion for the stop.

Second Point of Error

        The Appellant claims that the evidence in the record of the Appellant’s

ability to pay his attorney fees was insufficient to support the assessment of these

fees against him. The State concedes error on this claim.




                                          7
      STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR

      The Appellant claims trial counsel was ineffective in failing to file a

motion to suppress the stop, claiming there was no reasonable suspicion to

justify it. There was reasonable suspicion to justify the stop and trial counsel was

not ineffective in failing to file a motion to suppress the stop.

                                   DISCUSSION

      Trial counsel was not ineffective in failing to file a motion to suppress. The

Appellant claims there was no reasonable suspicion to justify the stop. He claims

that there was insufficient evidence to tie the Appellant in with observations by a

citizen witness that he was driving recklessly. Trial counsel was not ineffective.

Ineffective Assistance – Standard of Review

      The Appellate Courts use a two-pronged test to review claims of ineffective

assistance of counsel. A defendant must show trial counsel’s actions were not

reasonable and that the defendant suffered prejudice as a result of these

unreasonable acts. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674 (1984; Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim. App.

1999). First, a defendant must show that his counsel's representation fell below an

objective standard of reasonableness. Strickland, 104 S.Ct. at 2064. To prove this

deficiency in representation, the defendant must demonstrate that his counsel's

performance deviated from prevailing professional norms. Id. at 2065; McFarland



                                          8
v. State, 845 S.W.2d 824, 842-43 (Tex. Crim. App. 1992), overruled on other

grounds, 915 S.W.2d 9 (1994), cert. denied, 113 S.Ct. 2937 (1993).

      Second, the defendant must show prejudice. Strickland, 104 S.Ct. at 2064.

This requires the defendant to show that there is a reasonable probability that, but

for his counsel's unprofessional errors, the result of the proceeding would have

been different. Id. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. at 2068. Both prongs of the Strickland

test must be met before a case may be reversed for ineffective assistance of

counsel. Id. at 2064. A defendant bears this burden of proof by a preponderance of

the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      Judicial scrutiny of counsel's performance must be highly deferential.

Appellate courts indulge a strong presumption that counsel was effective. Jackson

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Isolated failures of counsel,

by themselves, do not constitute ineffective assistance of counsel. McFarland v.

State, 845 S.W.2d at 843; Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim.

App. 1992), cert. denied, 113 S.Ct. 3062 (1993). When evaluating an allegation of

ineffective assistance, an appellate court looks to the totality of the representation

and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999); Kesaria v. State, 148 S.W.3d 634, 638 (Tex. App. -

Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 270 (2006). The fact that another



                                          9
attorney may have acted in a different manner will not be sufficient to prove

ineffective assistance. Kesaria, 148 S.W.3d at 638. An error in trial strategy will

be considered inadequate only if counsel's actions lack any plausible basis. Id.

      A claim of ineffective assistance must be firmly founded in the record. Bone

v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Generally, the record on

direct appeal is not sufficient to establish a claim of ineffective assistance of

counsel because a silent record cannot rebut the presumption that counsel's

performance was based on sound or reasonable trial strategy. Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002); Kesaria, 148 S.W.3d at 638. In the

absence of a record explaining trial counsel's actions, a reviewing court most likely

cannot conclude trial counsel's performance fell below an objective standard of

reasonableness unless the conduct was so outrageous that no competent attorney

would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001), cert. denied, 123 S.Ct. 1351 (2003); Kesaria, 148 S.W.3d at 638.

Ineffective Assistance by Failure to Present Motion to Suppress

      A defendant cannot show trial counsel is ineffective in failing to present a

motion to suppress unless he shows that the motion had merit and that a ruling on

the motion would have changed the outcome of the case. Jackson v. State, 973

S.W.2d 954, 957 (Tex. Crim. App. 1998); Roberson v. State, 852 S.W.2d 508,

510–12 (Tex. Crim. App. 1993). He must show by a preponderance of the evidence



                                         10
that the motion to suppress would have been granted and that the remaining

evidence would have been insufficient to support his conviction. Wert v. State, 383

S.W.3d 747, 753 (Tex. App. – Houston [14th Dist.] 2012, no pet.). To meet this

burden, a defendant is required to produce evidence that defeated the presumption

of proper police conduct. Jackson v. State, 973 S.W.2d at 957; Wert v. State, 383

S.W.3d at 753. That there may be questions about the validity of a search is not

enough. Jackson v. State, 973 S.W.2d at 957.

Investigative Detention

      In the instant case, the Appellant cannot show that trial counsel was

ineffective because the stop was a proper investigative detention. Under the Fourth

Amendment, a warrantless detention of a person that amounts to less than a full

custodial arrest must be justified by reasonable suspicion. State v. Kerwick, 393

S.W.3d 270, 273 (Tex. Crim. App. 2013). Terrell v. State, ___ S.W.3d ___, No.

14-14-00390-CR, 2015 WL 4594054, at *2 (Tex. App. – Houston [14th Dist.] July

30, 2015, no pet.). “[A] law enforcement officer's reasonable suspicion that a

person may be involved in criminal activity permits the officer to stop the person

for a brief time and take additional steps to investigate further.” Hiibel v. Sixth

Judicial Dist. Court, 542 U.S. 177, 185, 124 S.Ct. 2451, 2458, 159 L.Ed.2d 292

(2004). Reasonable suspicion to detain a person exists if an officer has specific,

articulable facts that, combined with rational inferences from those facts, would



                                        11
lead him or her to reasonably conclude that the person detained is, has been, or

soon will be engaged in criminal activity. State v. Kerwick, 393 S.W.3d at 273.

These facts must show unusual activity, some evidence that connects the detainee

to the unusual activity, and some indication that the unusual activity is related to a

crime, but the likelihood of criminal activity need not rise to the level required for

probable cause to arrest. Id. at 273, 274. The test for reasonable suspicion is an

objective one that focuses solely on whether an objective basis exists for the

detention and disregards the officer's subjective intent. Id. at 274. A reasonable-

suspicion determination must be based on the totality of the circumstances, and

reasonable suspicion may exist even if the circumstances presented are as

consistent with innocent activity as with criminal activity. Id.

      Moreover, the detaining officer need not be personally aware of every fact

that objectively supports a reasonable suspicion to detain. Rather, “the cumulative

information known to the cooperating officers at the time of the stop is to be

considered in determining whether reasonable suspicion exists.” Derichsweiler v.

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A 911 police dispatcher is

ordinarily regarded as a “cooperating officer” for purposes of making this

determination. Id.

      Finally, information provided to police from a citizen-informant who

identifies himself and may be held to account for the accuracy and veracity of his



                                          12
report may be regarded as reliable. Id. at 914, 915. In such a scenario, the only

question is whether the information that the known citizen-informant provides,

viewed through the prism of the detaining officer's particular level of knowledge

and experience, objectively supports a reasonable suspicion to believe that criminal

activity is afoot. Id. at 915.

Analysis

The testimony presented at trial showed:

       1) Jordan Brooks observed a red 1990 model Plymouth or Chrysler van

driven by a white male who was by himself at approximately 6:00 pm on July 20,

2014 (RR 3 at 25-27, 28, 35, 36).

       2) Mr. Brooks observed the van driving on Highway 523 towards Angleton

and turning onto Stratton Ridge Road toward Clute (RR 3 at 25- 29).

       3) The van was driven in a reckless manner. It almost rear ended Mr.

Brook’s vehicle; it almost clipped his vehicle when it passed; it ran off the road

into oncoming traffic, almost hitting another vehicle head on; then it almost flipped

when it turned onto Stratton Ridge Road (RR 3 at 27-29).

       4) Mr. Brooks called 911, telling the dispatcher of the reckless driving. The

State admitted the 911 call as State’s exhibit one (RR 3 at 30). In State’s exhibit

one, Mr. Brooks described the vehicle as a nineties model red Chrysler minivan

(RR at SX1 at 1:28). He told dispatch that the driver was on Highway 523; had just



                                           13
turned onto Stratton Ridge Road; and was driving toward Clute (RR at SX1 at :55,

1:10, 1:40, 2:30). He only makes reference to a single driver with no reference to

any passengers (RR at SX1).

      5) On July 20, 2014, around 6:00 or 6:30 pm, Patrol Officer Edward Burnett

with the Clute Police Department was notified by dispatch of a reckless driver in a

red minivan traveling into Clute from Stratton Ridge Road (RR 3 at 130-132). He

did not remember all the details as to how dispatch described the vehicle (RR 3 at

159). While on Main Street, he saw two vehicles matching the description given

him by dispatch. Stratton Ridge Road becomes Main Street, so he was on the same

road that Mr. Brooks observed the Appellant turn onto. Officer Burnett first drove

to the vehicle which pulled into a convenience store (RR 3 at 133). However, the

vehicle at the convenience store was driven by a Hispanic male with two children,

so he immediately knew it was the wrong vehicle (RR 3 at 133). He did not talk to

this driver more than 10 to 15 seconds (RR 3 at 156). He then double backed

toward the other vehicle and saw it pulling into the parking lot of a bar. The bar

was about a block and a half to two blocks from where he first saw the two red

vans (RR 3 at 163, 164). Sergeant Soley, who he had been in radio contact with,

pulled in and came in contact with the vehicle (RR 3 at 134, 135, 157).

      6) Patrol Sergeant Jessie Soley with the Clute Police Department received a

dispatch of a report of a reckless driver that had turned onto Stratton Ridge Road



                                        14
coming into Clute (RR 3 at 49). This was on July 20, 2014. Around 6:30 pm he

came in contact with a nineties model red Plymouth or Dodge minivan (RR 3 at

46-48, 76, 77). This matched the description given to him by dispatch (RR 3 at 49,

112). It was driven by a white male, which also matched the information given him

by dispatch (RR 3 at 112). When the Sergeant made contact with the Appellant, he

was getting out of the driver’s seat of the vehicle. The Appellant was the only

person in the vehicle. The Appellant told him he was coming from Surfside beach

(RR 3 at 49, 50, 76); (RR at SX3 at :30, 1:55). When asked if he had been driving

recklessly earlier, he first stated that he did not know, but then denied it (RR 3 at

51); (RR at SX3 at 1:00). The Appellant had a strong odor of alcohol coming from

his person; his speech was very slurred; his balance unstable; and his eyes were red

and bloodshot. He admitted that he drank 5 beers (RR 3 at 52, 53); (RR at SX3 at

1:25). From this point field sobriety tests and a blood test confirmed the

Appellant’s intoxication.

      The above evidence was more than sufficient to provide reasonable

suspicion for an investigative stop. In Orsag v. State, 312 S.W.3d 105 (Tex. App. –

Houston [14th Dist.] 2010, pet. ref’d), the defendant claimed there was insufficient

reasonable suspicion to stop him. He claims the information linking his vehicle to a

speeding vehicle observed earlier by another officer was inadequate to support the

stop. The officer who conducted the stop testified that dispatch informed him that a



                                         15
blue Toyota pickup was seen speeding on Highway 59 in Houston about ten

minutes travel time away from where a second officer observed him. This was on a

Friday night. The Toyota was traveling in the arresting officer’s direction and this

officer saw him very soon after the dispatch. He had no other information

regarding the vehicle and had no separate reason to be suspicious of the vehicle.

But there were no other blue Toyota pickups in his area. The Court of Appeals held

that this information provided the officer sufficient reasonable suspicion to support

the Stop. Id. at 110-112 ; See also Mount v. State, 217 S.W.3d 716, 728, 729 (Tex.

App. - Houston [14th Dist.] 2007, no pet.) (finding reasonable suspicion sufficient

to stop “light colored” Cadillac pickup seen within minutes after officer received

call about a stolen white Cadillac pickup); Louis v. State, 825 S.W.2d 752, 756

(Tex. App. - Houston [14th Dist.] 1992, pet. ref'd) (finding reasonable suspicion

sufficient to stop three black males in light tan colored Cadillac based on report of

two black males driving away from a robbery in a white Oldsmobile).

      In reaching its decision, the court considered six factors in reviewing the

sufficiency of the nexus between the first officer’s observations of speeding and

the subsequent location and stop of the suspect: (1) the particularity of the

description of the offender or the vehicle in which he fled; (2) the size of the area

in which the offender might be found, as indicated by such facts as the elapsed

time since the crime occurred; (3) the number of persons in that area; (4) the



                                         16
known or probable direction of the offender's flight; (5) observed activity by the

particular person stopped; and (6) knowledge or suspicion that the person or

vehicle stopped has been involved in other criminality of the type presently under

investigation. Orsag v. State, 312 S.W.3d at 111. The court noted, however, that

the primary test is consideration of the totality of the circumstances and that the

factors may vary in different cases. Id. at 112.

      In the instant case, the Appellant was stopped while driving in the same

direction, on the same road as where he had been observed driving recklessly

shortly prior to when he was stopped. The area he was stopped would be

considerably less crowded than Highway 59 in Houston on a Friday night. The

information relayed to dispatch in the instant case included the color, year, make,

and model of the vehicle; more information than that possessed by the officer in

the Orsag case. The record also suggests that Jordan Brooks gave information to

dispatch beyond the portion of the 911 tape admitted. Mr. Brooks testified that the

suspect vehicle was driven by a white male on who was by himself (RR 3 at 25-27,

28, 35, 36). Officer Burnett apparently had this information because he testified

that he immediately knew the first van he stopped was the wrong vehicle because it

was driven by a Hispanic male with two children (RR 3 at 133). In addition,

Sergeant Soley stated that dispatch informed him the van was driven by a white




                                          17
male (RR 3 at 112). The evidence in the instant case was sufficient to show

reasonable suspicion for the stop.

Burden to Show Prejudice from the Record

      Finally, the Appellant cannot meet his burden to show prejudice from the

record. The vagueness of some of the evidence presented at trial regarding the stop

demonstrates this flaw with the Appellant’s claim. Because the issue of reasonable

suspicion for the stop was not fully developed at trial, the Appellant cannot show

prejudice because his claim of ineffective assistance is not “firmly founded in the

record.” See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). For

example, the admission of the dispatch records as to the exact time the 911 call

was received and the exact time Sergeant Soley came in contact with the Appellant

was not presented to the trial court. This information would have aided the trial

court in determining reasonable suspicion for the stop. The record could, however,

be developed as part of a post-conviction writ.

       The instant claim is not an appeal of a denial of a motion to suppress, but an

ineffective assistance of counsel claim. The Appellant, not the State, has the

burden to show prejudice. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). The Appellant must show by a preponderance of the evidence that the

motion to suppress would have been granted. Wert v. State, 383 S.W.3d 747, 753

(Tex. App. – Houston [14th Dist.] 2012, no pet.). To meet this burden, he is



                                         18
required to produce evidence that defeats the presumption of proper police

conduct. Id. Any claim of ineffective assistance must be firmly founded in the

record. Bone v. State, 77 S.W.3d at 835. Because no motion to suppress the

detention was filed, the State did not develop evidence at trial to show reasonable

suspicion for the stop. The Appellant’s motion to suppress the blood does claim

lack of identification of the Appellant’s vehicle; but the Appellant argued in this

motion that this resulted in an inability to show the Appellant was driving in a

public place as required under section 724.012 of the Transportation Code (CR at

10, 11). Because Officer Burnett personally observed the Appellant driving,

whether the Appellant was driving recklessly earlier was inconsequential. There

was no need for the State to link the Appellant personally with the earlier reckless

driving observed by Mr. Brooks in order to show he was driving on a public road.

Because the issue of whether the stop was based on reasonable suspicion was not

fully developed, the Appellant cannot meet his burden to show, from the record,

that he was prejudiced by his counsel’s failure to file a motion to suppress. He

failed to meet the second prong of the Strickland test to show prejudice.




                                         19
    STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR

      The Appellant claims that the evidence in the record of the Appellant’s

ability to pay his attorney fees was insufficient to support the assessment of these

fees against him. The State concedes error.

                                  DISCUSSION

      The Appellant complains that the Court assessed attorney fees in violation of

Article 26.05(g) of the Code of Criminal Procedure. That article provides:

      (g) If the court determines that a defendant has financial resources that
      enable him to offset in part or in whole the costs of the legal services
      provided, including any expenses and costs, the court shall order the
      defendant to pay during the pendency of the charges or, if convicted,
      as court costs the amount that it finds the defendant is able to pay.
      Tex. Crim. Proc. Code Ann. art. 26.05 (Vernon Supp. 2013).

      The Judgment reflects the Appellant was assessed $2,954.53 in attorney fees

(CR 1 at 53, 54). Prior to trial, the Appellant filed an affidavit of indigence and

attorney Laura Dagley Dowdy was appointed to represent him at trial (CR at 4-8).

At the conclusion of trial, the trial court found that the Appellant was indigent and

did not have sufficient funds to pay for the appellate record or to pay for an

attorney on appeal. These were provided without cost to the Appellant (CR at 69,

69, 74). The record contains no indication of a hearing to determine if the

Appellant had the financial resources to pay for his trial attorney, nor does the

record reflect that this determination was made. In Mayer v. State, 309 S.W.3d 552

(Tex. Crim. App. 2010), the Court of Criminal Appeals held that in order to

                                         20
comply with article 26.05, the record must contain evidence supporting a finding

that a defendant was able to pay his attorney fees. Id. at 557. Because this is a

matter of sufficiency of the evidence, the Appellant need not preserve error by

objecting before the trial court. Id. at 556. Once a defendant is determined by the

court to be indigent, he is presumed to remain indigent for the remainder of the

proceedings. Id. The State concedes that the evidence was insufficient to support

the assessment of attorney’s fees. The remedy is to delete the assessment of these

fees. See In re Daniel, 396 S.W.3d 545, 549 (Tex. Crim. App. 2013).

                                 CONCLUSION

      WHEREFORE, the State of Texas prays that judgment of conviction against

Appellant be upheld by the Court of Appeals for the First Judicial District of

Texas.

                               Respectfully submitted,



                               /S/ Jeri Yenne
                               JERI YENNE
                               CRIMINAL DISTRICT ATTORNEY
                               BRAZORIA COUNTY, TEXAS
                               SBN 04240950

                               /S/ David Bosserman
                               DAVID BOSSERMAN
                               Assistant Criminal District Attorney
                               SBN 02679520
                               111 East Locust, Suite 408A
                               Angleton, Texas 77515

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                                (979) 864-1230
                                (979) 864-1525 (Fax)

                                ATTORNEYS FOR THE STATE OF TEXAS



                      CERTIFICATE OF COMPLIANCE

      I hereby certify that Appellant Brief for the State, as calculated under
Appellate Rule 9.4(i), contains 5,184 words as determined by the Word program
used to prepare this document.


                                              /S/ David Bosserman
                                              DAVID BOSSERMAN




                         CERTIFICATE OF SERVICE

       The undersigned Attorney for the State of Texas certifies that a true copy of
this brief was served by E-service in compliance with Local Rule 4 of the Court of
Appeals or was served by fax in compliance with Article 9.5 of the Rules of
Appellate procedure on John Davis, attorney for the Appellant, who offices at 205
N. Chenango, Angleton, Texas, this 21st day of October, 2015.



                                              /S/ David Bosserman
                                             DAVID BOSSERMAN




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