                                                                             PD-0072-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 7/21/2015 5:18:10 PM
                                                             Accepted 7/22/2015 8:40:17 AM
     July 22, 2015
                                                                             ABEL ACOSTA
                                                                                     CLERK




                              No. PD-0072-15
__________________________________________________________________________

                  IN THE COURT OF CRIMINAL APPEALS
__________________________________________________________________________

                             JAMES LEMING

                                           Appellant,

                                     v.

                          THE STATE OF TEXAS


__________________________________________________________________________

               APPELLANT’S RESPONSE TO STATE’S BRIEF
__________________________________________________________________________

                               Clement Dunn
                           State Bar No. 06249300
                          140 East Tyler, Suite 240
                           Longview, Texas 75601
                          Telephone: 903-753-7071
                             Fax: 903-753-8783




                       ORAL ARGUMENT WAIVED
                         IDENTITY OF PARTIES AND COUNSEL

        Appellant certifies that the following is a complete list of all parties to the trial
court’s judgment and the names and addresses of their trial and appellate counsel.

1.      Appellant:      James Leming

2.      Appellant’s Trial Counsel:              Clement Dunn
                                                Attorney at Law
                                                140 E. Tyler Street, Suite 240
                                                Longview, TX 75601
                                                TSB No. 06249300

3.      Appellant’s Counsel on Appeal:          Clement Dunn
                                                Attorney at Law
                                                140 E. Tyler Street, Suite 240
                                                Longview, TX 75601
                                                TSB No. 06249300


4.      Attorney for the State:         Zan Brown
                                        Assistant District Attorney, Gregg County
                                        101 East Methvin St., Suite 333
                                        Longview, Texas 75601
                                        TSB No. 03205900

                                        Lisa McMinn
                                        State Prosecuting Attorney
                                        PO Box 13046
                                        Austin, TX 78711-3046
                                        TSB No. 13803300




                                                 I.
                                                             TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

GROUND FOR REVIEW NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                5
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

GROUND FOR REVIEW NUMBER THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                  7
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                                                     ii
                                          INDEX OF AUTHORITIES

                                                          Cases

Hernandez v. State, 983 S.W. 2d 867(Tex. App.–Austin 1998, no writ history). . . . . . . . . . 4

Atkinson v. State, 848 S.W. 2d 813, 815(Tex. App.–Houston(14th Dist.)1993, writ ref’d) . 4

Fowler v. State, 266 S.W. 3d 498(Tex. App–FortWorth 2008, writ ref’d). . . . . . . . . . . . . . . 4

Aviles v. State, 23 S.W. 3d 74,77(Tex. App.–Houston(14th District)2000, pet. Ref’d). . . . . 4

State v. Cerny, S.W. 3d 796,800(Tex. App.–Corpus Christi 2000, no pet.). . . . . . . . . . . . . . 4

Ehrhart v. State, 9 S.W. 3d 929,930(Tex. App–Beaumont 2000). . . . . . . . . . . . . . . . . . . . . . 4

Bass v. State, 64 S.W. 3d 646,651(Tex. App. –Texarkana 2001, pet. ref’d).. . . . . . . . . . . . . 4

Navarette v. California, 134 S. Ct. 1683(2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Illinois v. Gates, 462 U.S. 2d3(1983)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rachel v. State, 917 S.W. 2d 799, 809 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . 6

Wright v. State, 7 S.W. 3d 148, 151 (Tex. Crim. App. 1911). . . . . . . . . . . . . . . . . . . . . . . . . 9



                                                  Statutes and Codes

Section 12.42(a), Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Section 545.060(a), Texas Transportation Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


                                            Constitutional Provisions

Article 37.07, Section 3(a)(1), V.A.C.C.P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




                                                             iii
                                          NO. PD-0072-15

                         TO THE COURT OF CRIMINAL APPEALS

                                  OF THE STATE OF TEXAS

JAMES LEMING                                                                Appellant

V.

THE STATE OF TEXAS                                                          Appellee

                                             *****

                     APPELLANT’S RESPONSE TO STATE’S BRIEF

                                             *****

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

         Comes Now the Appellant, by and through his attorney, Clement Dunn and respectfully

submits the following in Response to the State’s Brief on Petition for Discretionary Review.



                                  STATEMENT OF FACTS

Offense:         Driving While Intoxicated Third or More

Verdict:         Guilty; Ten (10) years confinement - Texas Department of Criminal Justice -

                 Institutional Division

Date of Verdict:        October 14, 2013

Trial Court:    124th District Court, Gregg County, Texas.

         This case involves a prosecution for Driving While Intoxicated-Subsequent Offense;

Repetition of a Felony. R.R.4, at 6. This constitutes a second degree felony. Id.; see also:

Section 12.42(a), Texas Penal Code. The Trial Court conducted a hearing on the Appellant’s

Motion to Suppress on December 17, 2012. R.R. 2. After the Trial Court overruled the

Appellant’s Motion to Suppress, on January 13, 2013, C.R., at 13, the Appellant entered a plea

of guilty to the Trial Court. R.R.4. This occurred as an “open plea,” without a plea agreement,

     Appellant’s Response to State’s Brief, LEMING         1
and, following a hearing on sentencing, the Trial Court imposed a sentence of ten years’

confinement. R.R.6, at 48. The Trial Court sentenced the Appellant on October 14, 2013. R.R.7.

The Appellant filed a Motion for a New Trial. C.R., at 68. Pursuant to Motion for Extension of

time, the Appellant’s Brief is due July 28, 2014.



                   STATE’S GROUND FOR REVIEW NUMBER ONE



                             SUMMARY OF THE ARGUMENT

The State’s proposed interpretation of Section 545.060(a), Texas Transportation Code, runs

afoul of both logic and law. The Court of Appeals has correctly interpreted this statute.

                                          ARGUMENT

          Section 545.060(a), Texas Transportation Code, provides:

                   Sec. 545.060. DRIVING ON ROADWAY LANED FOR TRAFFIC.
                   (a) An operator on a roadway divided into two or more clearly marked lanes
                   for traffic:
                            (1) shall drive as nearly as practical entirely within a single lane; and
                            (2) may not move from the lane unless that movement can be made
                            safely.

   The State, in its Brief, asserts that this statute comprises two requirements, “that a driver

   remain in one lane if it is practical to do so,” and “that any departure from the lane be done

   safely.” State’s Brief, at 3.

   The State avers: “Failure to abide by either provision is a violation.” Id.

           This reading of the statute leads to illogical ends. The State concludes, “When

   subsections (1) and (2) are read together, the statute requires a driver to remain entirely in

   a single lane as nearly as is sensible or reasonable to do so but, if it is reasonable or sensible

   to deviate, the operator must do so safely.” State’s Brief, at 7. Example of “sensible” or

   “reasonable” deviation the State suggests would be avoidance of turtles, potholes, and

   bicycles. In the case of a “slow-moving bicycle,” the State asserts: “Under those
   Appellant’s Response to State’s Brief, LEMING            2
       circumstances, it is reasonable (or practical) to pass, by either leaving the lane entirely or

       moving partially into another lane until the pass is completed.” Id.

                  The State’s interpretation of Section 545.060(a)(1) would require a driver to stay in

       a single lane unless it becomes “impractical” to do so. Besides departing significantly from

       the plain language of the statute, this reading leads to results at odds with law and logic alike.

       This interpretation would also lead vagueness an ambiguity to an otherwise straightforward

       statute.

                  The law contains no per se, or “across the board” prohibition of a driver changing

       lanes. A prudent, reasonable, safe driver may change lanes for innumerable reasons even in

       the course of a single journey of only a few minutes in today’s urban traffic. These may

       include passing slower cars, yielding to faster cars, keeping a safe distance from other

       vehicles ( into an open lane, for instance, to avoid following too closely), yielding to

       oncoming traffic, leaving additional space between one’s own vehicle and wide loads or

       trucks that fill an entire lane, improving one’s visibility, getting in the proper lane for an exit

       that may still be some distance ahead. This list could go on and on–as does the flow of traffic

       on the streets and highways of Texas–many of which rank as some of the most heavily

       troubled in the nation. Yet, the State’s argument would confine the driver to a single

       lane–unless this became “impractical.” Every driver changing lanes under this interpretation

       would bear a burden of explaining the “impracticality” that necessitated the change of lanes.1

                  The State’s interpretation of Article 545.060(a)(1) also leads to ambiguity. What

       standard would determine when the failure to drive “as nearly as practical entirely within a

       single lane” fell within the realm of the “sensible” or “reasonable?” From whom perspective

       would this be assessed or analyzed? A hypothetical “reasonable” driver in those


       1
         The State’s view would require an objective, identifiable “impracticality” as a condition
precedent for any deviation or change from a single lane–even if completely safe and regardless
of the degree of the deviation or change.
       Appellant’s Response to State’s Brief, LEMING            3
       circumstances, or that driver in particular? Avoiding the glare of the sun, the exhaust from

       the vehicle in front, the traffic from the mall ahead–which of these are “reason” to change

       lanes that, as has been required in Fourth Amendment jurisprudence, society is proposed to

       recognize as reasonable? What begins as ambiguity leads quickly to absurdity and vagueness.

       Under the State’s interpretation of this statute, probable cause would exist for law

       enforcement to stop a driver for leaving “a single lane.”–either completely of

       partially–simply because it was “practical” not to have done so.2

               In contrast with the State’s approach, the appellate judiciary in Texas has consistently

       and logically reached a different conclusion. Section 545.060(a), according to the

       jurisprudence that has developed over a period of years creates one offense: moving out of

       a marked lane when it is not safe to do so. See, e.g., Hernandez v. State, 983 S.W. 2d

       867(Tex. App.–Austin 1998, no writ history); Atkinson v. State, 848 S.W. 2d 813, 815(Tex.

       App.–Houston(14th Dist.)1993, writ ref’d); Fowler v. State, 266 S.W. 3d 498(Tex.

       App–FortWorth 2008, writ ref’d); Aviles v. State, 23 S.W. 3d 74,77(Tex.

       App.–Houston(14th District)2000, pet. Ref’d); State v. Cerny, S.W. 3d 796,800(Tex.

       App.–Corpus Christi 2000, no pet.); Ehrhart v. State, 9 S.W. 3d 929,930(Tex.

       App–Beaumont 2000); and Bass v. State, 64 S.W. 3d 646,651(Tex. App. –Texarkana 2001,

       pet. ref’d). In each of these cases the appellate courts arrived at conclusions consistent with

       the interpretation of this statute set forth above: a violation occurs only by a driver moving

       out of a marked lane when it is not safe to do so.




       2
         To the degree the State wants to infer a legislative intent re swerving, straddling, etc.,
other statutes furnish a much more direct and affective set of tools: statutes proscribing reckless
driving, failing to yield right of way, and rules regarding turns represent but a few of many
examples.
       Appellant’s Response to State’s Brief, LEMING          4
                       STATE’S GROUND FOR REVIEW NUMBER TWO



                           SUMMARY OF THE ARGUMENT

The telephone call mentioned at the suppression hearing provided an insufficient basis for

the stop.

                                       ARGUMENT

The Court of Appeals correctly found that the telephone call the State mentioned at the

hearing on the Appellant’s motion to suppress involved “anyone more believable than an

anonymous caller.” Opinion, at 8. The Court of Appeals correctly observed:

                       Although the State’s questioning of Gilow and its closing argument
                       at trial asserted that the caller gave his name and contact information,
                       that information (other than the name “Arliss”) was not developed or
                       presented at the suppression hearing. There was no evidence
                       presented that would have given Gilow any reason to attribute
                       credibility to the caller.

The Court of Appeals observed: “A tip from an anonymous caller, standing alone, rarely

supplies reasonable suspicion for a stop because it lacks “sufficient indicia of reliability.”

Opinion, at 8 (citations omitted).

       Yet, the State asserts this “tip” contained some indicia of reliability, as found in the

United States Supreme Court’s opinion in Navarette v. California, 134 S. Ct. 1683(2014),

in which an anonymous 911 caller identified the make, license plate, and location of a truck

that had nearly run the caller off the road. See: State’s Brief, at 10. The factors present in

Navarette, however, became notably absent when compared to the instant case.

       To the degree that the report in Navarette involved “(An informant’s) explicit and

detailed description of alleged wrongdoing, along with a statement that the event was

observed firsthand, entitles his tip to greater weight than might otherwise be the case.”

State’s Brief, at 10, citing Navarette, 134 S. Ct. At 1689, quoting Illinois v. Gates, 462 U.S.

2d3(1983). The caller and the “information” instant case differ markedly from this. In this
Appellant’s Response to State’s Brief, LEMING          5
       case, the Appellant’s vehicle was traveling on a city street in plain and public view. No

       dramatic “wrongdoing” of the kind at issue in Navarette had recurred; none had when alleged

       or reported from any source. Instead, when the officer did locate the car the Appellant was

       driving, nothing observed involved any violation of law–no “wrongdoing.” Hence, this most

       critical aspect of the “tip” was not corroborated..

               In the absence of “contemporaneous reports of criminal activity made under the stress

       of excitement,” State’s Brief, at 10, a tip loses these indicia of credibility. Nothing in the

       record indicates the caller acted under the “stress of excitement” arising from “criminal

       activity.” As just noted, no observations corroborated or found any violation of law

       associated with the reported “swerving.” This was all the caller alleged–the record contains

       no mention of anything approaching a stressful event, criminal or otherwise.

               The State emphasizes that the call in the instant case was a “911" call:

       “ And fourth, use of the 911 system provided further proof of the caller’s veracity.” State’s

       Brief, at 10. From this the State argues that the “tip” in the instant case resembles the call at

       issue in Navarette, supra. State’s Brief, at 10-11. The State also draws attention to this

       “reliable 911 report” in urging its third ground of error (discussed infra)–that “reasonable

       suspicion” justified the stop–asserting, as here, that a “911" call carries inherent reliability.

               The Appellant respectfully submits: Nowhere does the record of the hearing on the

       motion to suppress3 show that this “tip” came through a “911" call, or the “911 system.” In

       fact, the record of the hearing on the motion to suppress does not clearly establish how the

       “tip” came to the police:

                       (Set our R.R. at2, p 7)

       3
        As the Court of Appeals noted in the instant case: “In reviewing the trial court’s ruling
on the motion to suppress, we will only consider evidence before the trial court at the suppression
hearing.” Opinion, at 2, n. 2, citing Rachel v. State, 917 S.W. 2d 799, 809 (Tex. Crim. App.
1996).


       Appellant’s Response to State’s Brief, LEMING           6
R.R. 2, at 7. This record does not even specify that the “report” came over a telephone at all.

When the officer describes “the call came in,” and “it was called in that was,” he never

clarifies whether he is referring to a call into the police department or the call from the

dispatcher to the officer. Never does the officer articulate how the call into the department

was made or received. No other evidence at the hearing offered any explanation or detail of

the means of the making or receiving of this “call.” At a minimum, nothing showed that this

was a “911" call.

        In the absence of any showing of a “911" call, and where the observation (including

the video) failed to corroborate the information from “the tip,” this scenario differs greatly

from that in Navarette, supra. This “tip” did not justify the stop. The Court of Appeals

reached the correct conclusion. Opinion, at 8-9.



                STATE’S GROUND FOR REVIEW NUMBER THREE



                           SUMMARY OF THE ARGUMENT

The traffic stop in the instant case finds no justification in the jurisprudence of “reasonable

suspicion.”

                                        ARGUMENT

        In its third ground for review, the State seeks to justify the stop in the instant case on

the basis of “reasonable suspicion of DWI.” State’s Brief, at 11-15. Here, the State focuses

similarly on the assertion that the Appellant was “weaving” as he drove. The Appellant

respectfully submits that this provided no basis for a stop of the vehicle.

        As the Court of Appeals correctly observed, no evidence of the Appellant’s alleged

“swerving” amounted to the traffic violation. Opinion, at 9 (“No traffic violation having

occurred...”). The State, in the absence of a traffic violation, nonetheless asserts that “Arliss’

Appellant’s Response to State’s Brief, LEMING            7
       report and the officer’s observations was sufficient to provide reasonable suspicion of driving

       while intoxicated.” State’s Brief, at 11-12. 4

               The State argues that “weaving” amounts to “something so obvious and

       commonplace” that the expertise of an officer becomes superfluous in both its detection and

       attribution of significance to it. State’s Brief, at 12-13. Citing cases that allow a “lay witness”

       to be competent to give an opinion about “intoxication”–that is, simply whether or not a

       person is “intoxicated,” without the involvement of a vehicle at all–the State argues that a

       “lay witness” can, by analogy, glean from seeing a vehicle “weaving” that the driver is

       intoxicated. Id., at 13. But in the instant case the officer could not and did not corroborate

       what the “lay witness” had allegedly reported: the “swerving from side to side” in fact

       appeared as only a “drift” or “movement,” primarily within its own lane, not amounting to

       a violation of any traffic law. Opinion, at 9.

               The State next mentions “time of day” and “location near bars” as factors in

       developing “reasonable suspicion,” i.e., “to find that bad driving allows reasonable suspicion

       of intoxication.” State’s Brief, at 13. These factors have no relevance to the instant case,

       however. The Appellant was stopped “about 2:00pm,” “in the middle of Longview, Texas,

       on a well-traveled thoroughfare.” Opinion, at 2,13. This differs considerably from “Austin’s

       Sixth Street bar district late at night,” which the State inserts into its argument. State’s Brief,

       at 14. At a minimum, these factors of time and location add nothing–if anything, subtract

       significantly–from any calculation of reasonable suspicion in the instant case.

               The Court of Appeals set out the known observations of the Appellant’s driving:



       4
         Significantly, the State emphasizes the “tip” as a basis for reasonable suspicion.
Throughout its Brief, the State refers to this “tip” as a “911" call, and repeatedly asserts that this
adds to its reliability. As the Appellant has demonstrated, there exists no basis to classify tis “tip”
as coming via “911."

       Appellant’s Response to State’s Brief, LEMING            8
                       At most, the vehicle may have crossed the lane lines into the next
                       (inside) lane, but this happened when no other cars were in the
                       immediate vicinity. Gilow continued to follow and observe Leming
                       almost two more minutes after this initial observation. In that time,
                       although Leming truck is observed to drift or swerve within his lane
                       of traffic, we cannot say that this is an indication of distress. Although
                       Leming’s truck is observed to approach the curb on the right-hand
                       side of the lane of traffic, it is not observed being close to hitting or
                       riding up the curb. Also, Leming observes traffic laws by coming to
                       a complete stop at a stop light; there was nothing indicating distress
                       in that stop or the subsequent move forward with traffic.

Opinion, at 13. The Court of Appeals rejected the State’s argument that these facts could

justify the stop on the basis of “community care-taking.” Id., at 13-14.

       In its initial Petition for Discretionary Review, the State explicitly stated it is not

challenging the Court of Appeals’ rejection of the State’s argument seeking to justify the stop

on the basis of a “community care-taking” function on direct appeal. State’s Petition, at 4,

n. 1 (“The State does not challenge the Court of Appeals’ determination that community

care-taking was not shown.”) The Court of Appeals described this function: “As a part of his

duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a

reasonable person–given the totality of the circumstances–would believe is in need of help.”

Wright v. State, 7 S.W. 3d 148, 151 (Tex. Crim. App. 1911). Opinion, at 9. Since the

gravamen of intoxication if “impairment,” and since a visibly “impaired” person would be

“in need of help,” it becomes difficult to see how “reasonable suspicion” could justify the

stop when “community care-taking” could not. (Respectfully, this seem especially true given

the State’s rhetoric about obviousness of intoxication generally. State’s Brief, at 12-13.)

Certainly, the facts addressed in the record fail to justify a stop, regardless of the theory

advanced.




Appellant’s Response to State’s Brief, LEMING          9
                                                  PRAYER

               The Appellant respectfully requests that this Honorable Court affirm the holding of

       the Sixth Court of Appeals in this case.

                                                             Respectfully submitted,

                                                             ___//ss//___Clement Dunn_____
                                                             State Bar No. 06249300
                                                             140 East Tyler, Suite 240
                                                             Longview, Texas 75601
                                                             Telephone: 903-753-7071
                                                             Fax: 903-753-8783


                                    CERTIFICATE OF SERVICE

               I hereby certify that a true and correct copy of this Appellant’s Response to State’s

       Brief was delivered to the Gregg County District Attorney’s Office, Gregg, Texas on this 21st

       day of July 2015.

                                                             ___//ss//___Clement Dunn_____




                                 CERTIFICATE OF WORD COUNT


       I hereby certify that a total of 3283 words are included in this Appellant’s Response to

       State’s Brief.


                                                             ___//ss//___Clement Dunn_____




Appellant’s Response to State’s Brief, LEMING        10
