                           NO.         PD-0651-15
                                                                        6 Sh IS
                                          IN    THE




ORIGINAL                    COURT   OF   CRIMINAL       APPEALS


                                         OF    TEXAS




                             PIERCE,     JOSEPH       MICHAEL,

                                                      (Appellant/Petitioner)


                                              vs.




                                  STATE,       OF TEXAS,

                                                      (Appellee/Respondent)
                                                                                  FILED IN
                                                                          COURT OF CRIMINAL APPEALS
                     APPLICANT'S         MOTION       FOR   REHEARING             NOV 03 2015

                       PURSUANT      TO       T.R.A.P.      RULE   79
                                                                               Abel Acosta, Clerk




                       In Appeal No.            12-14-00073-CR

                                  Court of Appeals

                     For   the    Twelfth      Judicial      District


                                    Tyler,       Texas



Joseph Michael Pierce,           Petitioner/Pro Se

3060 FM 3514 #1919200 (Stiles Unit)

Beaumont,   Texas,    77705                                                   RECEIVED IN
                                                                        COURT OF CRIMINAL APPEALS

                                                                              NOV 02 2015

                                                                          Abel Acosta,Gtefa
                        NO.        PD-0651-15




PIERCE,    JOSEPH    MICHAEL,           §            IN   THE   TEXAS    COURT


                     (Appellant)
                                        §            OF CRIMINAL APPEALS,

VS.
                                        §            AUSTIN,     TEXAS

STATE,    OF TEXAS,

                     (Appellee)


                      APPELLANT'S    MOTION   FOR   REHEARING


                        PURSUANT TO T.R.A.P.        RULE   79



      NOW COMES,    JOSEPH MICHAEL PIERCE,        Appellant,    proceeding

pro se in the above styled and numbered cause, respectfully

files this, his Motion For Rehearing pursuant to T.R.A.P. Rule

79, from the refusal of his Petition For Discretionary Review

in Cause Number         gD-0651-15            .


      I, JOSEPH MICHAEL PIERCE,      pursuant to Tex.Civ.Prac.Rem.               Code,

§132.001 - §132.003, do certify that this motion is based on

substantial intervening circumstances or other significant ::::.

circumstances which are specified in the motion,                  and is made

in good faith and not for delay purposes.

Executed    on this      CA /        day of OCfOoCC                ,    2015.




JOSEPH MICHAEL PIERCE (Pro Se)

3060 FM 3514 #1919200 (Stiles Unit)

BEAUMONT,    TEXAS,    77705



                                       (li)
                                         I.

                                 PROCEDURAL HISTORY


   On October 14, 2015, the Texas Court of Criminal Appeals REFUSED Appellant's
Petition For Discretionary Review in Cause No.PD-0651-15,.

                                       II.

                      SUBSTANTIAL INTERVENING CIRCUMSTANCES


   Appellant will show in this motion that there is (3) Substantial intervening
Circumstances for this court to reconsider reviewing Appellate's PDR.
      1. Whether Appellate properly requested and perserved a request to the trial
         court to make findings on his motion to suppress evidence?
      2. The effect of making a determination that appellartt;had properly requested
         and preserved a request for findings with the trial court.
      3. The Court of Appeals in the 7th and 12th opinions conflict with the
         Court of Criminal Appeals opinion in LOTHROP V. STATE,372 S.W.3d(2012).

1. WHETHER APPELLATE PROPERLY REQUESTED AND PERSERVED A REQUEST TO THE TRIAL
   COURT TO MAKE FINDINGS ON HIS MOTION TO SUPPRESS EVIDENCE?


   A. Appellant requested the trial court to make findings on the denial of his
motion to suppress evidence.(SEE ATTACHMENT A Supplemented reporter's record from
January 21, 2014 page 7f8).

   On January 21, 2014, Appellant, in the presence of his trial attorney,.;andi in the
proceedings following a hearing, Appellant was informed that his motion to suppress
was denied. Appellant addressed the courts and the following took place:
       THE DEFENDANT: Yes, ma'am. May I speak?
       THE COURT: If you want to talk to your lawyer first, he might prefer you
                  talk to him first.

       THE DEFENDANT: I want to talk to you.
       THE COURT: Okay.
       THE DEFENDANT: Is there any way I can be told why - I don't know what the
                      proper words are - why my motion was denied?
       THE COURT: what motion?

       THE DEFENDANT: The motion to suppress?
       THE COURT: I'm not going to answer your question. I really don't discuss the
                  the reasons for Court rulings
       THE DEFENDANT: Okay.
       THE COURT: That's the sort of instructions they give you at Judge school is
                  just make a ruling.
       THE DEFENDANT: Yes, ma'am.

      THE COURT: But anyway, because I thought it was the correct ruling is the
                  answer.



                                              (2.)
B. CODE OF CRIMINAL PROCEDURE ART. 1.05 "RIGHTS OF ACCUSED" States, HE SHALL
   HAVE THE RIGHT OF BEING HEARD BY HIMSELF, OR COUNSEL/ OR BOTH:

C. ROSS V. STATE,32 S.W. 853,858(Tex.Crim.App.2000)(a non-prevailing party shall
                    attempt to get the rational for the trial court's ruling on the
                    record through either a verbal explanation at the hearing or
                    express findings of fact and conclusions of law.)

   Even if Appellate did not properly "by procedural requirement" request findings
of fact and conclusions of law on his motion to suppress, the trial court had a
duty to ensure that Appellate did not lose his right to those findings due to
ignorance of technical procedural requirements SEE,e.g./U.S. V. GONZALEZ,592 E.3d
675,680 n.3(5th Cir.2009)(discussing liberally construed briefs while represented
by counsel.))

2. THE EFFECT OF MAKING A DETERMINATION THAT APPELLATE HAD PROPERLY REQUESTED AND
   PRESERVED A REQUEST FOR FINDINGS WITH THE TRIAL COURT.

   Appellant contends that if the Appellant Court had made a determination that he
had implied Pro Se, a request for findings before the court, then the trial court
would have abused its discretion in not making those findings. In these circumstances
the Appellate court would have been required to remand the proceedings back to the
trial court to make such findings.SEE STATE V. CULLEN,195 S.W.3d 696,698(Tex.Crim.App.
        2006)(In this case, the trial court's refusal to act prevented the court of
        appeals from meaningful review of the decision to grant the motion to suppress.
        Without findings of fact and conclusions of law, the court of appeals was left
        in the undesirable position of having to make assumptions about the reasons
        for the trial court's decision. RULE 44.4 authorizes the court of appeals to
        remand the case to the trial court so that the court of appeals is not forced
        to infer facts from an unexplained ruling.

                       RULES OF APPELLATE PROCEDURE 44.4 provides:
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss
    an appeal if:
    (1) the trial court's.erroneous action or failure or refusal to act prevents
        the proper presentation of a case to the court of appeals; and
    (2) the trial court can correct its action or failure to act.
(b) Court of appeals direction if error remediable. If circumstances described
   7 in (a) exist/ the court of appeals roust diEecb-the^trial"court to.correct
"':.''.. the'error. The'court of appeals will then proceed'as if the erroneous action
    or failure to act had not occurred.

    Appellant has met this requirement and the 12th COA errored, when the state
failed to dispute Appellant's appeal by not filing a reply brief. The 12th COA
was forced to treat it as a confession of error by the prosecutor. Which is make
an independent examination of the merits of the claim of error.SEE SIVERRAND V.
STATE,89 S.W.3d 216,219-20(Tex.App.-Corpus Christi 2002)(solution on how to treat



                                           (3.)
a state's failure to file a reply brief). The 12th COA review the motion to suppress
and the record reflects that the trial court refused to give an adequate answer to
her ruling when asked, and this prejudiced Appellate and the 12 COA had to "outright"
guess about her court's ruling on the motion to suppress, even though the Court of
Criminal Appeal has stated in CULLEN,Id. (Effective from the date of this opinion,
        the requirement is: upon the request of the. losing party on a...motion.„to
        suppress evidence, the trial court shall state its essential findings. By
       "essential findings," we mean that the trial court must make findings of
     . fact and conclusions of law adequate to provide an appellate court with a
        basis upon which to review the trial court's application of law to the facts.)
    Appellant would like for this court to focus on the Reporter's Record he has
included in this motion,( SEE ATTACHMENT A page 7 and 8 pretrial hearing Jan. 21,2014)
Judge Kennedy did not refuse appellant's request for findings on his motion to
suppress because it was Hybrid, she does not say that, she refused because she was
taught not to give her reasons for her ruling. Judge Kennedy understood Appellant's
implied Pro Se request for findings on her ruling, by her saying," But anyway,
because I thought it was the correct ruling is the answer.SEE ATTACHMENT A page 8
supplemented RR Jan. 21,2014. .

3. THE COURT OF APPEALS 7th and 12th OPINIONS, CONELICT WITH THIS COURT'S OPINION
   IN LOTHROP V. STATE,372 S.W.3d 187(Tex.Crim.App.2012).

   The Court of Appeals in Tyler and Amarillo have stated in there opinions that
touching the white line constitutes a violation of §545.058(a) driving on the
improved shoulder. Appealant has found two other cases in the 7th court of appeals
that like with the 12th COA believe that touching the white fog line with the tire
was sufficient to allow the officer to reasonably conclude that the defendant
violated Tex, Transp. Code Ann §545.058(a) SEE McCLISH V. STATE,2006 Tex.App.LEXIS
7927, and also SEE THOMAS V. STATE,420 S.W.3d 195,200(Amarillo 2013).

   Appellant's case is very similar in facts with THOMAS Id. In both cases the
Appellants were driving vehicals with out of state plates and were pulled over
for touching the line, which the trooper misunderstood as driving on the improved
shoulder and violated §545.058(a) based on that, neither case did the state prove
that the Appellants actually drove on the shoulder and it was for none of the
seven reasons §545.058(a) allows you. THOMAS and Appellate defence was that
touching the line is not driving on the improved shoulder and it was the state's
burden to prove that not only we cross the line, also the state had to prove that
it was for none of the seven reasons you are allowed.The state in both cases failed
to elect testimony from the trooper that he observed it not to be for none of the
seven reasons, just that they thought touching the line violates the statute of
§545.058(a).


                                          (4.)
A.    50 Texas practice, DWI Law and Practice Handbook § 7:12 (2015 ed.)

§ 7:12 Traffic offenses - Driving on an improved shoulder

     An operator may drive on an improved shoulder to the right of the main traveled
portion of a roadway if that operation is necessary and may be done safely, but only:

            1. to stop, stand, or park;
            2. to accelerate before entering the main traveled lane of traffic;
            3. to decelerate before making a right turn;
            4. to pass another vehicle that is slowing or stopped on the main traveled
               portion of the highway, disabled, or preparing to make a left turn;
            5. to allow another vehicle traveling faster to pass;
            6. as permitted or required by an official traffic-control device; or
            7.    to avoid a collision.


Similar to the offense of failure to maintain a single lane is the offense of
                                         2                                     .       .
driving on an improved shoulder.             A suspect's violation of this provision may
                                                                                   3
serve as a reasonable suspicion that a traffic law is being violated.                  For example,
a police officer had a reasonable suspicion that a defendant violated the statute
pertaining to "driving on improved shoulder," such that the officer's traffic stop
of the defendant was justified, as it was undisputed that the tire on the passenger
side of the vehicle that the defendant was driving crossed over the "fog line" that
separated the right lane of traffic from the shoulder of the road, the evidence did
not substantiate necessity for crossing over "fog line" or that one of the statutory
                          4
exemptions applied.           However, a police officer must observe more that a vehicle
being driven on an improved shoulder to justify a detention. The Court of Criminal
Appeals found that "driving on an improved shoulder is not prima facie evidence of
                  5
an offense."          A driver may drive on an improved shoulder where it can be done
                                                                                                    6
safely and if it is "neccessary to achieving one of the seven approved purposes."
The defendant does not have the burden to prove that one of the seven approved
purposes applies. Rather, the state has the burden to show: ether driving on the
improved shoulder was not a neccessary part of achieving one of the seven approved
                                                                                                7
purposes, or driving on the improved shoulder could not have been done safely."
Westlaw.         2015 Thomson Reuters.(SEE ATTACHMENT B Photocopy of §7:12)

Footnotes

1. Tex. Transp. Code Ann § 545.058(a).
2- Tex. Transp. Code Ann § 545.058(a).
3. State V. Dietiker,345 S.W.3d 422(Tex. App. Waco 2011, no pet.)".
4. State V. Dietiker,345 S.W.3d 422(Tex. App. Waco 2011, no pet.).
5. Lothrop V. State,372 S.W.3d 187(Tex. Crim. App. 2012).
6. Lothrop V. State,372 S.W.3d 187(Tex. Crim. App. 2012).
7. Lothrop V. State,372 S.W.3d 187(Tex. Crim. App. 2012).


                                                    (5.)
B.   The State's Exhibit 2 ( Video from Trooper's Frazier's dashcam).

     The Trooper's dashcam shows, what happened that night and not one time on
the video does Trooper Frazier tell Appellant he drove on the shoulder. In
fact, the Trooper was asked by Trooper Baker who shows up after the stop, What
did you get him for? Trooper Frazier says," For touching the line, I even told
him you were looking back at me."(SEE V RR 62-63,-74-75.) When Trooper Frazier was
asked what does drivng on the improved shoulder meant to him, he responded, "that
the tires touch..the white line is driving on the improved shoulder, and that he was
taught that at the Academy. (SEE V RR 54.) The Trooper was asked to show the court
where..he thought the video shows the vehicle driving on top of the white line,
which he thought was driving on the shoulder. After showing the court he agrees that
you can't tell if the tire is touching the line or 3 inches away from the line. That
is what he believed was violated §545.058 driving on the improved shoulder.(SEE V RR
59.).This is unreasonably wrong and Appellant ask this Court to Step In and correct
the 12th COA.that has made this error after this court has made it clear in LOTHROP
V. STATE,372/S.W. 187(Tex.Crim.App.2012) that there is two-ways to prove driving on
the shoulder and it is the state's burden to prove one of those ways, NOT the Appel
lant's as the 7th and 12th COA has shifted the burden too.(SEE ATTACHMENT C screen-
shots from State's Exhibit 2, that shows where Appellant was unreasonably stopped
and never CROSSED the White Line.) Transcript from the dashcam State's Exhibit 2
                     (00:05:25)run time / (00:20:23)WG time)
           TROOPER: "Good evening, sir. Highway Patrol. Reason
               for the stop, when I got there behind you, I
               noticed you hit that white line a few times. I
               don't know if you were just watching me behind .:• ,•
               you, I just want to make sure you're safe to
               drive, though. You're nothing to drink or any
               thing like that? Okay, you got your license and
               insurance, and it'll be a warning and I'll get
               you back on the road."
The 12th COA ignored this weight of evidence and the Trooper's testimony conflicts
with the video that was played and used at the Suppression hearing.Both video and
the Trooper's testimony does not support a legal stop. With this evidence in front
of this court is substantial intervening circumstances for this court to correct.

                                        PRAYER
     Appellant prays that this Honorable Court Of Criminal Appeals review the
substantialial intervening circumstances as set out in the above and forgoing motion
and, upon review, sets this case to be reheard on Appellants issues.
                                                        ""Respectfully Submittted/N
                                                        tylMfh ^AqJMii*^
                                                      Jfi&EPH MICHAEL PIERCE

                                         (6.)
                           CERTIFICATE .OF COMPLIANCE


      1/ JOSEPH MICHAEL PIERCE, do certify that this motion is in compliance with
T.R.A.P. RULE 79.2 since the motion is grounded on substantial intervening
circumstances and other signficant circumstances that'are specified in this
motion. Appellant certifies that this motion is so grounded and that the
motion is made in good faith and not for de£ay\ Executed on thisj^T^day of
October 2015.
                                                                        i
                                                  (gSEPH MICHAEL P
                                                                 PIERCE


                            CERTIFICATE OF SERVICE

       1/ JOSEPH MICHAEL PIERCE, decertify that a true and correct copy of
Appellant's Motion for REHEARING WAS SERVED ON Appellee by U.S. MAIL,
postage prepaid, addressed to:

STATE PROSECUTING ATTORNEY

P.O.   BOX 12405

AUSTIN, TEXAS 78711


AND


MR. MICHAEL WEST (Asst. Dist. Attory.)
100 NORTH BROADWAY, 4th Fl.

TYLER, TEXAS 75702

Executed on this     27   day of October 2015.

                                                                      ^A(J)mL^
                                                        JOSEPH MICHAEL PIERCE
                                                        TDCJ.-CID #01919200
                                                        Mark W.   Stiles Unit
                                                        Beaumont,Texas 77705

                                  INMATE'S   DECLARATION


       I, JOSEPH MICHAEL PIERCE,       am the applicant and being presently
incarcerated in MARK W. STILES UNIT,              declare under penalty of
perjury that,      according to my belief,          the facts stated in the above
application are true and correct.
                                             Signed on October, 27,^-^^.5


                                                                            KU+J-
                                           Signature of Applicant
                                           JOSEPH    MICHAEL   PIERCE




                                           (7.)
                ATTACHMENT         A


COURT   REPORTER'S    RECORD   THAT WAS         SUPPLEMENTED


AFTER   APPELLANT    FILED   HIS       DIRECT   APPEAL.


This hearing took place on JANUARY 21,2014
     1                    the COURT:     Your appointment is tomorrow?

     2                    MR.   ELLIS:   Yes.

     3                    THE COURT:     if we set it say four weeks out

     4   and with the understanding that if you're not a hundred

     5   percent, we won't go forward until you are.

     6                    MR.   ELLIS:   I understand.     I would think

     7   that would be a fine date at least until I can check in,

     8   Your Honor.

     9                    the COURT:     Okay.     That's really what I'm

    10   looking for, when you can check back in.

    11               Mr. Pierce, you keep raising your hand,        what's

    12   that about?

    13                   the defendant: Yes, ma'am.         May I speak?

    14                   THE COURT:      If you want to talk to your

    15   lawyer first, he might prefer you talk to him first.

    16                   the defendant:         I want to talk to you.

    17                   the COURT:      Okay.

    18                   THE defendant:         is there any way I can be

    19   told why - I don't know what the proper words are - why my

    20   Motion was denied?

    21                   the COURT:      what motion?

    22                   the DEFENDANT:     The Motion to Suppress?

    23                   the COURT:      I'm not going to answer your

    24   question.   I really don't discuss the reasons for Court

    25   rulings.
J

                            beverly e. dixon, cs.r.
                         deputy official court reporter
                                114th District Court
                                                                      8


 1                     THE DEFENDANT:   Okay.

 2                     THE COURT:   That's the sort of instructions

 3   they give you at Judge school is just make a ruling.

 4                     THE DEFENDANT:   Yes, ma'am.

 5                     THE COURT:   But anyway, because I thought it

 6   was the correct ruling is the answer.

 7                All right.   Let's try for February 24th if

 8   everybody's comfortable on that date.       Then we'll plan to

 9   go forward, if not, you'll have an update for us.

10                     MR. ELLIS:   Thank you, Judge.

11                     THE COURT:   okay.   All right.   Thank you all

12   very much,    we're in recess in this matter.

13                     (HEARING ADJOURNMENT.)

14


15

16

17

18

19

20

21

22

23

24

25




                         beverly e. dixon, c.s.r.
                      deputy official court reporter
                           114th District Court
              ATTACHMENT     B


50 Tex.   Brae,   DWI   Law Practice Handbook

§ 7:12 Traffic offenses - Driving onn.an
improved shoulder. Database updated April 2015
§ 7:12.Traffic offenses—Driving on an improved shoulder, 50 Tex. Prac, DWI Law and...




                               50 Tex. Prac, DWI Law and Practice Handbook § 7:12 (2015 ed.)

                                                        Texas Practice Series TM
                                                Texas DWI Law and Practice Handbook

                                                    Database updated April 2015
                                                   Julie Kay Baker, Kyle C. Simpson
                                                     Chapter 7. Search and Seizure

    § 7:12. Traffic offenses—Driving on an improved shoulder

     An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is
     necessary and may be done safely, but only:

            1. to stop, stand, or park;

            2. to accelerate before entering the main traveled lane of traffic;

            3. to decelerate before making a right turn;

            4. to pass another vehicle that is slowing or stopped on the main traveled portion ofthe highway, disabled, or preparing
            to make a left turn;

            5. to allow another vehicle traveling faster to pass;

            6. as permitted or required by an official traffic-control device; or

            7. to avoid a collision. -

     Similar to the offense of failure to maintain a single lane is the offense of improperly driving on an improved shoulder. - A
    suspect's violation of this provision may serve as a reasonable suspicion that a traffic law is being violated. - For example, a
    police officer had a reasonable suspicion that a defendant violated the statute pertaining to "driving on improved shoulder,"
    such that the officer's traffic stop of the defendant was justified, as it was undisputed that the tire on the passenger side of the
    vehicle that the defendant was driving crossed over the "fog line" that separated the right lane of traffic from the shoulder of
    an improved road, and although the officer testified that he did not see the defendant drive unsafely onto the shoulder of the
    road, the evidence did not substantiate necessity for crossing over "fog line" or that one of the statutory exemptions applied. -
    However, a police officer must observe more than a vehicle being driven on an improved shoulder to justify a detention.
    The Court of Criminal Appeals found that "driving on an improved shoulder is not prima facie evidence of an offense."- A
    driver may drive on an improved shoulder where it can be done safely and if it isi"necessary to achieving one of the seven
    approved purposes."- The defendant does not have the burden to prove that one of the seven approved purposes applies.
    Rather, the state has the burden to show: "either driving on the improved shoulder was not a necessary part of achieving one
    of the seven approved purposes, or driving on the improved shoulder could
                                                                        con not have been done safely." -

Westlaw. © 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.


Footnotes
1         Tex Transp. Code Ann. 8 545.058(a).
2         Tex. Transp. Code Ann. $545.058.                                                         & $. -©Dyerrimen* H-W • >,
3         State v. Dietiker. 345 S.W.3d422 (Tex. App. Waco 2011, no pet.).                                    D^PCC-' " . ;, "A':"""'"J
4         State v. Dietiker. 345 S.W.3d 422 (Tex. App. Waco 2011. no pet.).                   ^ffl-gsre? «,-,.-' ;..,.   ....   „.
5         Lothrop v. State. 372 S.W.3d 187 (Tex. Crim. App. 2012).                                 Aferfk;-.-


WestlavvNexf ©2015 Thomson Reuters. No claim to original U.S. Government Works.
                     ATTACHMENT         C


SCREEN SHOT        PHOTOS    FROM      THE   VIDEO OF   THE   DASH


CAM   THAT   WAS    ENTER    IN   AT    TRIAL   AND   THE


SUPPRESSION        HEARING    IN CAUSE        NO.   114-0658-13
2/13- 00:1b




                                   5
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