                                                                              ACCEPTED
                                                                         14-15-00025-CR
                                                           FOURTEENTH COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                   3/10/2015 10:36:25 AM
                                                                     CHRISTOPHER PRINE
                                                                                  CLERK

                  No. 14-15-00025-CR

                ******************                     FILED IN
                                                14th COURT OF APPEALS
                                                   HOUSTON, TEXAS
                     IN THE                     3/10/2015 10:36:25 AM
                 COURT OF APPEALS               CHRISTOPHER A. PRINE
        FOR THE FOURTEENTH SUPREME      JUDICIAL DISTRICTClerk
                 AT HOUSTON, TEXAS

                ******************

                NATHAN JONES, Appellant

                         Vs.

                THE STATE OF TEXAS, Appellee

                *******************

                  BRIEF OF APPELLANT
                   (ANDERS BRIEF)
                *******************


                                       Respectfully submitted,

                                       SUE BERKEL
                                       PO BOX 303063
                                       AUSTIN, TEXAS 78703
                                       TELE: 512 689-8733
                                       FAX: 512 323-5039

NO ORAL ARGUMENT REQUESTED

                                       By:/s/SueBerkel____________
                                       SUE BERKEL
                                       ATTORNEY FOR
                                       APPELLANT
                                       STATE BAR NO. 02202525
                   IDENTITY OF PARTIES AND COUNSEL


      The following is a complete list of the parties of the judgment appealed from
and the names and addresses of all trial and appellate counsel.

Defendant/Appellant                                      Nathan Jones

Prosecution/Appellee                                     The State of Texas


Trial and Appellate Attorney for the State David A. Escamilla
                                       State Bar No. 06662300
                                       Travis County Attorney
                                       Travis County Attorney’s Office
                                       314 West 11th St.
                                       Austin, Texas 78701
                                       Phone: (512) 854-9415

Trial Attorney for Defendant          Mr. Matthew Jones
                                      State Bar No. 10929150
                                      Attorney at Law
                                      4408 Spicewood Springs Rd..
                                      Austin, Texas 78759
                                      Phone: (512) 451 6991

Appellate Attorney for Defendant      Sue Berkel
                                      State Bar No. 02202525
                                      Attorney at Law
                                      PO Box 303063
                                      Austin, Texas 78703
                                      Phone: (512) 689-8733




                                         2
                                          TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

POSSIBLE ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                              8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       9

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                            3
                                    INDEX OF AUTHORITIES


                                                 CASES


Brooks v. State 323, S.W.3d 893, 905-907 (Tex.Crim. App.2010). . . . . . . . . . . 9

Davis v. State, 947 S.W. 12d 240, 244 (Tex. Crim. App. 1997). . . . . . . . . . . . . .11

Derichsweiler v. State, 348 S.W.3d 906 (Tex.Crim.App. 2011) . . . . . . . . . . . . . 11

Ford v. State, 158 s.W.3d 488, 492 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . 11

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . 10

Maryland v. Wilson, 519 U.S. 408, 411 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Temple v. State 342 S.W.3d 572 (Tex.App.Houston(14th Dist.) 2010). . . . . . . . . 9

Terry v. Ohio,392 U.S. 1, 22 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Castleberry, 332 S.W.3d 460 (Tex.Crim.App. 2011). . . . . . . . . . . . . . . . 11

United States v. Sokolow, 490 U.S.1, 10 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 10




OTHER AUTHORITY

.
Tex. Penal Code Section 49.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     9




                                                      4
                          STATEMENT OF THE CASE

      This is an appeal of a criminal conviction of Driving While Intoxicated, a

Class B misdemeanor. The offense was allegedly committed on or about January

18, 2014. Appellant pled not guilty to the offense, and after trial, the Judge found

the Defendant guilty and sentenced him to 180 days confinement probated for two

years with no fine or community service but required a mental health assessment,

completion of a MADD class and the installation of an ignition interlock for the

first six months of probation. From that judgment Appellant would appeal,

however, after the undersigned counsel has made a conscientious examination of

the clerk’s and reporter’s records, the undersigned counsel can find no basis for

appeal and to assert any basis would be wholly frivolous. All references to the

Clerk’s Record shall be cited as (C.R. ) followed by the page number and all

references to the Reporter’s Record shall be cited as (R.R. ) followed by the

volume (v) and page numbers ( ).

                          POSSIBLE ISSUES PRESENTED

                          POSSIBLE POINT OF ERROR ONE

             This cause should be reversed because the evidence is legally

insufficient to uphold Appellant’s conviction


                                          5
                          POSSIBLE POINT OF ERROR TWO

             This cause should be reversed because there was no reasonable

suspicion to stop the Appellant.

                          STATEMENT OF THE FACTS

      On or about January 18, 2014, Officer Miranda McGee with the University

of Texas police department, observed Appellant’s vehicle travelling northbound on

Guadalupe St. straddling the center line. (RR, v.2, pgs.8, 12-13). Officer McGee

was westbound on 24th and turned northbound onto Guadalupe St., a public street,

in Austin, Travis County, Texas. (RR v. 2, pgs.12-13, 17) Guadalupe has two

lanes which travel southbound and two lanes which travel northbound and a bike

lane on the right but there is no turn lane. (RR v. 2, pg. 13) Prior to Officer

McGee first observing Appellant’s car, another car, a black car, had turned into

Appellant’s lane in front of Appellant and Appellant had to slow down to allow

that other car to turn into Appellant’s lane. (RR v, 2, pg. 45). Officer McGee saw

Appellant’s VW straddling the center dotted line while Appellant’s car appeared to

be pushing into the car in the adjoining lane. (RR v2, pg. 13) Appellant’s car was

going out of his northbound lane and other driver looked like he was being forced

out of his adjoining northbound lane and was being pushed into the bike lane.

(RR v2, pg. 13) Appellant explained that because the other driver had cut him off,

                                          6
he was wanting to get even with that driver so that he could mean mug him. (RR

v. 2, pg. 49-50) Officer McGee was concerned for the safety of the other driver.

(RR v. 2, pg. 14) Appellant’s car then went back into his own lane (the left hand

lane) but moved into the other car’s lane (the right hand lane) cutting the other car

off at the intersection of Guadalupe and Dean Keeton. (RR v. 2, pg. 14) Appellant

did not leave enough distance between the two cars when he moved into the right

hand lane nor did Appellant signal that he was moving from the left hand lane into

the right hand lane. (RR v. 2, pgs. 14-15) Officer McGee activated her overhead

lights and Appellant used his turn signal to turn right on 27th street and pulled over

right away at approximately 3:17 a.m. (RR v. 3, pg. 15) Officer McGee

approached Appellant and asked him why he was driving so aggressively and

Appellant replied “because the driver of the other car was driving like an asshole.”

(RR v. 2, pg. 17). Officer McGee noticed a moderate odor of alcohol emitting

from Appellant’s vehicle and noticed that Appellant had slightly slurred speech

and glassy eyes. (RR v. 2, pgs 17-18). There was nobody else in Appellant’s car

and Appellant related that he was coming from a fire twirling event and had three

beers (or three jack and sodas according to Appellant’s testimony) and that it was

1:45 a.m. (RR v. 2, pgs. 18-19, 55). Officer McGee administered the HGN test

and noticed four of six clues, that Appellant’s eyes lacked smooth pursuit in both

                                          7
eyes and had distinct and sustained nystagmus in both eyes. (RR v. 2, pg. 20).

Officer McGee administered the walk and turn test and noticed that Appellant had

an improper turn, stepped off the line, used his arms for balance and missed his

heel to toe. (RR v. 2, pg. 21) If a DWI suspect misses four or more clues on the

walk and turn test, the officer should continue the test so Officer McGee offered

Appellant the opportunity to do the one leg stand test, however, Appellant refused.

(RR v. 2, pg. 22) Appellant then began to shout about medical marijuana and

when Officer McGee asked Appellant to count out loud, Appellant told Officer

McGee to count out loud. (RR v. 2, pg. 23) Officer Zavala had arrived as a back

up officer and had to forcibly push Appellant into the patrol car after Officer

McGee arrested Appellant for DWI. (RR v. 2, pgs. 23-24) When Officer McGee

read the DIC-24 statutory warnings to Appellant he shouted over her that she was

to “get your fucking radio and order a breathalyzer on the spot”, however, once

Appellant arrived at the jail, he refused the intoxilyzer test. (RR v. 2, pgs. 25-27)

                                 SUMMARY

      Appellant could possibly complain that the evidence is not sufficient to

support his conviction and that it was error for the Court to rule that there was

reasonable suspicion to stop Appellant.




                                           8
          POSSIBLE ARGUMENT UNDER POINT OF ERROR NO. ONE

      A possible point of error is that this cause should be reversed because the

evidence admitted at trial was legally insufficient to support a guilty verdict. The

Court of Criminal Appeals has held that there is only one standard, the legal

sufficiency standard, to be used to evaluate whether the evidence is sufficient to

support a criminal conviction. Brooks v. State 323, S.W.3d 893, 905-907

(Tex.Crim.App.2010) When reviewing sufficiency of the evidence under the legal

sufficiency standard, the Court reviews all of the evidence in the light most

favorable to the verdict to determine whether the jury was rationally justified in

finding guilty beyond a reasonable doubt. Temple v. State 342 S.W.3d 572

(Tex.App.Houston(14th Dist.) 2010). The State had the burden to prove that on

January 18, 2014, Appellant operated a motor vehicle in a public place in Travis

County, Texas while intoxicated. (CR pgs. 10-11) Tex. Penal Code Section

49.04. Officer McGee’s testimony that Appellant operated a motor vehicle on

January 18, 2014 in a public place in Travis County, Texas was uncontroverted.

(RRv2, pg. 17) The State also proved beyond a reasonable doubt that Appellant

was intoxicated through the officers testimony regarding Appellant’s driving,

appearance, demeanor and performance on the field sobriety tests and the video

which was admitted into evidence. (RR v. 2, pgs. 9-36, State’s Exhibit 1). The

                                          9
State met its burden of proof in this case and to assert otherwise would be

frivolous.

      POSSIBLE ARGUMENT UNDER POINT OF ERROR NO. TWO

      A possible point of error is that this cause should be reversed because the

State failed to establish reasonable suspicion for the stop of Appellant’s vehicle.

Appellant’s counsel argued in his closing arguments that there was no reason to

pull Appellant’s vehicle over, in other words that there was no reasonable

suspicion for the stop. (RR v. 2, pg 68) Such an argument could have been made

in a motion to suppress which if successful could have suppressed the evidence of

intoxication, however, there was overwhelming evidence that Officer McGee had a

reasonable suspicion to stop Appellant.

      Law enforcement officers may stop and briefly detain persons suspected of

criminal activity on less information than is constitutionally required for probable

cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968) To initiate an investigative

stop, the officer must possess a reasonable suspicion based on specific articulable

facts that, in light of the officer’s experience and general knowledge, would lead

the officer to reasonably conclude the person detained actually is, has been, or soon

will be engaged in criminal activity. United States v. Sokolow, 490 U.S.1, 10

(1989); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). These facts

                                          10
must be more than a mere hunch or suspicion. Davis v. State, 947 S.W. 12d 240,

244 (Tex. Crim. App. 1997).

      An investigative stop must be objectively reasonable in light of the particular

circumstances of the case. Maryland v. Wilson, 519 U.S. 408, 411 (1997);

Terry,392 U.S. at 21-22. Whether the officer’s suspicion was reasonable is

evaluated based on “an objective standard that disregards any subjective intent of

the officer making the stop and looks solely to whether an objective basis for the

stop exists.” Ford v. State, 158 s.W.3d 488, 492 (Tex. Crim. App. 2005). It should

be based on the totality of the circumstances. See Derichsweiler v. State, 348

S.W.3d 906 (Tex.Crim.App. 2011) The Court of Criminal Appeals clarified that

the test for reasonable suspicion does not require the facts to point to the actual or

impending commission of a particular crime because a brief investigative detention

constitutes a significantly lesser intrusion upon the privacy and integrity of the

person than a custodial arrest. Id. The Court of Criminal Appeals even more

recently held that an officer can have a reasonable suspicion to stop a suspect even

if there is a possibility of an innocent explanation for the suspect’s conduct. State

v. Castleberry, 332 S.W.3d 460 (Tex.Crim.App. 2011). In this case, Officer

McGee observed Appellant’s vehicle straddle the center lane, move dangerously

into another car’s lane causing that car to move into the bike lane, cut off the other

                                          11
car at the intersection of Dean Keeton and Guadalupe while failing to signal a lane

change. (RR v. 2, pgs. 11-17). Officer McGee did not see the other car make an

unsafe turn into Appellant’s lane and even if that did in fact occur, that does not

negate Appellant’s failure to stay in his single lane of traffic. (RR v.2, pg. 32-34,

45) Officer McGee had personally observed several traffic violations and as such

had a reasonable suspicion to stop Appellant. Id.

                                        PRAYER

      For the reasons stated above, Appellant respectfully prays that the Court of

Appeals grant the undersigned counsel’s motion to withdraw because Appellant’s

appeal is frivolous.




                                                     Respectfully submitted,



                                                     SUE BERKEL

                                                     PO BOX 303063

                                                     AUSTIN, TEXAS 78703

                                                     TELE: 512 689-8733

                                                     FAX: 512 323-5039

                                          12
                                                   By:_/s/Sue Berkel________

                                                   SUE BERKEL

                                                   ATTORNEY FOR

                                                   APPELLANT

                                                   STATE BAR NO. 02202525




                                CERTIFICATE OF SERVICE

      By my signature above, I to certify that the above instrument has been

served on the Travis County Attorney’s Office and on the Appellant, at 1200 w.

40th #108 Austin Texas 78756 this___10___day of March, 2015.



                            CERTIFICATE OF COMPLIANCE

      By my signature above, I certify that pursuant to TRAP 9.4(i), the length of

this brief is 2792 words.




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