                                                                             ACCEPTED
                                                                         13-15-00187-CR
                                                         THIRTEENTH COURT OF APPEALS
                                                                CORPUS CHRISTI, TEXAS
                                                                    6/23/2015 4:01:20 PM
                                                                  CECILE FOY GSANGER
                                                                                  CLERK

                  CAUSE NO. 13-15-00178-CR

                IN THE COURT OF APPEALS        FILED IN
                                       13th COURT OF APPEALS
     FOR THE THIRTEENTH JUDICIAL DISTRICT     OF TEXAS TEXAS
                                    CORPUS CHRISTI/EDINBURG,
                  CORPUS CHRISTI, TEXAS 6/23/2015 4:01:20 PM
                                             CECILE FOY GSANGER
                                                   Clerk



                   THE STATE OF TEXAS,
                                  Appellant

                             V.

                      ISMAEL SERDA,
                                 Appellee


          APPEAL FROM THE 28th DISTRICT COURT
   NUECES COUNTY, TEXAS, IN TRIAL CAUSE NO. 13-CR-1027-A


            BRIEF FOR APPELLEE ISMAEL SERDA




                                  BY: TRAVIS BERRY

                                  State Bar No. 24059194
                                  travisberrylaw@gmail.com
                                  P.O. Box 6333
                                  Corpus Christi, Texas 78466
                                  Telephone: (361) 673-5611
                                  Facsimile: (361) 442-2562
                                  ATTORNEY FOR APPELLEE

ORAL ARGUMENT IS REQUESTED
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

Reply point . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         The trial court properly granted Appellee’s motion to suppress

I.       Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.      Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III.     The State’s “cooperating officers” argument under Hoag v. State and
         Fonseca v. State is misguided as the officers failed to complete their
         cooperation and testify at the hearing on the motion to suppress where
         their hearsay statements were properly excluded. . . . . . . . . . . . . . . . . . 6

IV.      No evidence was presented by the State to establish that Officer Castro
         had a reasonable suspicion to make a traffic stop . . . . . . . . . . . . . . . . . . 8

V.       Appellee never consented to this encounter with a person unknown to
         him . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20



                                                             i.
                               INDEX OF AUTHORITIES

CASES

Allen v. State, 13-13-00188-CR, 2014 WL 4402135, at *2-4
      (Tex.App. - Corpus Christi, Sept 4, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . 6

Bland v. Texas Dep’t of Pub. Safety, No. 14-12-01057-CV, 2013 WL 3868447,
      at *4 (Tex. App. - Houston [14th Dist] July 23, 2013, pet. denied) . . . . . . 11

Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . 18

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

Dewalt v. State, 307 S.W.3d 437 (Tex. App. - Austin 2010, pet. ref’d) . . . . . . . . 10

Fonseca v. State, 881 S.W.2d 144 (Tex. App. - Corpus Christi 1994, no pet.) 6-11

Hoag v. State, 728 S.W.2d 375 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . 6-11

Hubbard v. State, 133 S.W.3d 797 (Tex. App. - Texarkana 2004, pet. ref’d) . . . 10

Jackson v. State, 424 S.W.3d 140 (Tex. App.-Texarkana 2014, pet. ref’d) . . . . . 17

Linney v. State, 401 S.W.3d 764(Tex. App.- 14th Dist. 2013, pet. ref’d) . . . . . . 17

Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . 17

Praska v. State, 557 S.W.2d 83 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . 10-12

Spakes v. State, 913 S.W.2d 597 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . 10

State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App.2006) . . . . . . . . . . . . . . . . . . 5, 6

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) . . . . . . . . . 5

                                                ii.
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006 . . . . . . . . . . . . . . . . . 6

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . 5

State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . 5

United States. v. Mendenhall, 446 U.S. 544, 554 (1980) . . . . . . . . . . . . . . . . 15-17

Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . 18

Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013) . . . . . . . . . . . . . 13-15, 18

Whitehead v. State, 130 S.W.3d 866 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . 6



RULES AND STATUTES

Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-17

Texas Penal Code §9.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Tex. R. App. P. 38.1(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                        iii.
                           CAUSE NO. 13-15-00178-CR

STATE OF TEXAS                            *   IN THE COURT OF APPEALS
                                          *
VS.                                       *   THIRTEENTH DISTRICT
                                          *
ISMAEL CERDA                              *   STATE OF TEXAS

                             BRIEF FOR APPELLEE

TO THE HONORABLE COURT OF APPEALS:

                       SUMMARY OF THE ARGUMENT

      The State failed to bring any witnesses to the traffic violations alleged to

have been committed by Appellee. The State attempted to bring statements from a

DPS officer and a police dispatch officer via hearsay rather than presenting those

witnesses in court. The trial court properly sustained defense objections to such

hearsay.

      The only witness to testify about the traffic stop, Officer Castro, never

witnessed any traffic violations herself and stated she only made the traffic stop at

the order of the dispatch officer.

      Without any evidence that a traffic violation occurred, the trial court held

that no reasonable suspicion existed to stop Appellee’s vehicle. The trial court

properly granted Appellee’s motion to suppress all evidence seized in this traffic

stop. The State’s issues on appeal should be overruled.

                                          1
                                       ARGUMENT

                                      REPLY POINT:

       The trial court properly granted Appellee’s motion to suppress

       The State complains on appeal that the trial court erred by failing to

consider evidence and witnesses it did not produce or present at the hearing.

                                   I. Statement of Facts

       The Appellee was being followed from Portland, Texas, into Corpus Christi,

Texas, by an unknown, unmarked pick-up truck. (RR2 - 39; Supp. CR17 - Finding

No. 2) Appellee testified that the unmarked pick-up truck was not a police vehicle,

that he felt he was being “chased” by an unknown person, and that the pick-up

kept increasing its speed during this pursuit to the point of exceeding the speed

limit. (RR2 39-41, 45) Appellee testified that he was scared and frightened as he

felt that this unknown person chasing him wanted to harm him. (RR2 - 42, 46)

After hearing evidence, the trial court found that this speeding occurred because:

       “Defendant did not know that he was being followed by any police officers
       or agents or any authorities; he thought he was being chased by an unknown
       person.”1 (Supp. CR17 - Finding No. 3)


       The State never presented its witness to this alleged incident, nor did it


       1
        Officer Castro testified that Appellee thought he was being pursued by this pick-up
truck (RR2 - 18, 26)

                                               2
present any police reports from that witness. The trial court found as such. (Supp.

CR17 - Finding No. 5) The State twice desired findings on excluded evidence.

(Supp. CR 10, 19; RR2 - 7 lines 2-8, lines 14-16; RR2 - 9,10, RR2 - 50)

       In its Order denying the State’s request for additional findings of fact, the

trial court held that:

       “The State denied the Court the opportunity to hear the full examination of
       this material witness to this stop. There was no reason given by the State of
       his unavailability nor did the State express the need for his testimony at the
       time of the hearing as the record shows.” (Supp. CR25)

       Due to the State’s failure to bring its material witness, the trial court was

only presented evidence from the State’s sole witness - Officer Castro. Officer

Castro admittedly made a traffic stop of Appellee’s vehicle without observing any

traffic violations and corroborated that there was no law enforcement indicia on

the vehicle pursuing Appellee:

       Defense:      At any time while you were on the freeway or before the stop,
                     did you see the Defendant driving recklessly?

       Castro:       No.

       Defense:      Did you see him speeding?

       Castro:       No.

       Defense:      Did you see him almost have a collision?

       Castro:       No.

                                           3
      Defense:        Did Eric Walters have any kind of emergency – police
                      emergency lights on this car?

      Castro:         No, sir.

      Defense:        He didn’t have any flashing lights inside of his grill?

      Castro:         I don’t recall.

      Defense:        So basically you can’t say that you stopped the defendant for a
                      traffic violation because you didn’t, is that correct?

      Castro:         Correct.               (RR2 - 15, 16)


      Officer Castro stopped Appellee’s vehicle only upon information from

dispatch2, not on any personal observations in corroboration of alleged traffic

violations. (RR2 - 16, 17; RR2 - 26, 27; Supp. CR. 18 - Finding No. 9) Officer

Castro agreed with the defense that there was “no basis for stopping him” and

when Appellee was asked to exit the vehicle and placed under arrest, no sobriety

tests had been performed. (RR2 - 26, lines 10-19) The trial court was also shown

Officer Castro’s dashboard camera video of the stop wherein no traffic violations

were observed. (RR2 - 47, lines 21-25)

      Upon the evidence presented, the trial court granted Appellee’s motion to

suppress and made the conclusions that: 1.) No evidence was presented of Agent



      2
          “I mean, based upon what dispatch was telling me, I just detained him.”

                                                4
Walters’ observations; 2.) The officer who made the traffic stop observed no basis

the stop; and 3.) The traffic stop served no community care-taking function.

(Supp. CR. 18)

                                  II. Standard of Review

      When reviewing the ruling on a suppression motion, regardless of whether

the judge granted or denied the motion, appellate courts view the evidence in the

light most favorable to the ruling. State v. Woodard, 341 S.W.3d 404, 410 (Tex.

Crim. App. 2011)3The prevailing party is afforded the strongest legitimate view of

the evidence and all reasonable inferences that may be drawn from it. Id.

      In a motion to suppress hearing, the trial court is the sole trier of fact and

judge of the credibility of the witnesses and the weight to be given their testimony,

such that he may believe or disbelieve all or any part of a witness’s testimony,

even if that testimony is not controverted. State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000) We will uphold the trial judge’s ruling if it is reasonably

grounded in the record and correct on any theory of law applicable to the case.

Valtierra v. State, 310 S.W.3d 442, 447-448 (Tex. Crim. App. 2010); State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.2006).

      If the trial judge makes express findings of fact, we view the evidence in the

      3
          Citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)

                                               5
light most favorable to his ruling and determine whether the evidence supports

these factual findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)

  III. The State’s “cooperating officers” argument under Hoag v. State and
      Fonseca v. State is misguided as the officers failed to complete their
 cooperation and testify at the hearing on the motion to suppress where their
                 hearsay statements were properly excluded.

      “An appellate court’s review of the record is generally limited to the

evidence that was before the trial court at the time of the trial court’s ruling.”4

“This ensures that the record on appeal accurately reflects all of the evidence that

was seen by, used by, or considered by the trial judge at the time [s]he made a

ruling.”5

      At the hearing on Appellee’s motion, the State failed to present any witness

to alleged traffic violations committed by Appellee. The State attempted to

introduce observations and statements from witnesses in absentia. At each

attempt by the State to enter evidence via hearsay, the trial court denied its

admittance. (RR2 - 7, lines 2-8 & lines 14-16; RR2 - 9,10; RR2 - 50)

      Although Appellee admitted to speeding at this hearing, the traffic stop

occurred before the hearing. Appellee’s admission of speeding (later discussed



      4
          Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004).
      5
          Amador v. State, 221 S.W.3d 666, 677 (Tex. Crim. App. 2007)

                                               6
under the Law of Necessity infra.) at the hearing does not create a reasonable

suspicion retroactively. Officer Castro testified that, before making the stop, she

had no direct knowledge that a traffic violation had occurred as she had not

witnessed any traffic violations. In addition to the DPS Agent the State failed to

produce, the State also failed to present the police dispatch officer who allegedly

made the call to Officer Castro to make a traffic stop.

                                      Hoag & Fonseca

      Upon reading of both Hoag v. State6 and Fonseca v. State7, the State’s

argument that the trial court should have allowed statements from the DPS officer

and the dispatch officer into evidence because they were “cooperating officers”

during the arrest is misguided. It is true that before and up to Appellee’s arrest all

law enforcement involved were cooperating. This is the first part to this

“cooperation.” The second part of this “cooperation” is the live testimony of the

“cooprerating officers” in Court.

      In both Hoag and Fonseca, the State had multiple officers involved in the

arrest who all cooperated in the arrest. In addition to their cooperation at arrest

was their cooperation at the defendant’s hearing on its motion to suppress.


      6
          728 S.W.2d 375, 380 (Tex. Crim. App. 1987)
      7
          881 S.W. 2d 144, 150 (Tex. App. - Corpus Christi 1994, no pet.)

                                                7
      In both Hoag and Fonseca, the cooperating officer’s evidence was admitted

because they were present in court at the hearing on the defendant’s motion to

suppress and made live testimony about what they observed during the arrest. This

did not occur in the instant case and the fact that these officers may have

“cooperated” in Appellee’s arrest does not exempt their appearance at the

suppression hearing.

      Without the testimony of these “cooperating officers” or any police reports

from these “cooperating officers”, the trial court was not presented with any

evidence besides Officer Castro’s testimony; testimony that clearly stated that the

officer did not have any reasonable suspicions of her own to make a traffic stop of

Appellee’s vehicle because she observed no traffic violations.

      The State’s first argument that the trial court should have considered the

collective knowledge of the cooperating officers to determine that reasonable

suspicion existed fails as it is based only in the trial court allowing inadmissable

hearsay evidence.

 IV. No evidence was presented by the State to establish that Officer Castro
             had a reasonable suspicion to make a traffic stop.

      The trial court found that the Appellee was speeding for an acceptable

reason, because the “Defendant did not know that he was being followed by any



                                          8
police officers or agents or any authorities; he thought he was being chased by an

unknown person. Defendant accelerated and decelerated his vehicle at different

speeds in an attempt to get away from the unknown vehicle.” (Supp. CR 17 -

Finding No’s 3 & 4) This finding did not exculpate the Appellee from such action,

rather the trial court found it justified under the facts of this harrowing unmarked

police pursuit.

       Under the law of necessity8, Conduct is justified if:

       (1) the actor reasonably believes the conduct is immediately necessary to
       avoid imminent harm;

       (2) the desirability and urgency of avoiding the harm clearly outweigh,
       according to ordinary standards of reasonableness, the harm sought to be
       prevented by the law proscribing the conduct; and

       (3) a legislative purpose to exclude the justification claimed for the conduct
       does not otherwise plainly appear.

       The necessity defense applies to the violation of speeding.9 The trial court

did not cite the Penal Code in its findings but it is the law under which the court’s

finding is grounded. (Supp. CR17 - Finding No. 4) Tex. Pen Code §9.22(1) and




       8
           Texas Penal Code §9.22
       9
         See Spakes v. State, 913 S.W.2d 597, 598 (Tex. Crim. App. 1996) “The plain language
codifying the necessity defense evidences a legislative intent that the defense apply to all offenses
unless the legislature has specifically excluded it from them”

                                                 9
Dewalt v. State,10 “requires the defendant to first bring forward evidence of a

specific imminent harm.” Also, Hubbard v. State11 holds that “a defendant must

admit the conduct charged (speeding) and then offer evidence justifying the

conduct. “

      The defense brought forward such evidence of specific imminent harm from

this unknown pursuer (RR2 39-43, 45 & most specifically at RR2 - 42), the

Appellee admitted to such speeding (CR1 - 30 ¶2, RR2 - 45, 46), the Appellee

testified during the State’s cross that he was speeding, “To get away from the

vehicle that was chasing me” (RR2 - 46, lines 1-3) and the trial court’s findings

were grounded in the record.

      Nonetheless, the State quotes Praska v. State12 to argue that any defense

Appellee might have to any traffic infractions would not negate an officers

reasonable suspicion to make a detention. As was the case in Hoag and Fonseca,

the officer in Praska that had a reasonable suspicion also testified at the hearing

on a defense motion to suppress. This live testimony about what these officers

personally observed is why their information was taken into evidence by their


      10
           307 S.W.3d 437, 454 (Tex. App. - Austin 2010, pet. ref’d)
      11
           133 S.W.3d 797, 801-802 (Tex. App. - Texarkana 2004, pet. ref’d)
      12
           557 S.W.2d 83, 85-86 (Tex. Crim. App. 1977)

                                               10
respective trial courts. Had those same officer’s failed to appear to testify in Hoag,

Fonseca, and Praska, Appellee argues their observations offered as hearsay would

not have been allowed. (This is assuming counsel makes the hearsay objection as

did defense counsel in the instant case).

      The observations and statements of the State’s “cooperating officers” were

properly excluded. Officer Castro’s observations at the inception of her arrival

behind Appellee’s vehicle saw no traffic violations. Throughout her tracking of

Appellee’s vehicle, she observed no traffic violations. There was nothing the State

had in its possession or had secured through a witness to show the trial court that

Officer Castro had a reasonable suspicion to make a traffic stop.

                        The “paranoid speeding drunk” defense

      On this point, the State has offered a quote from Derichsweiler v. State13.

Although similar in certain respects, Derichsweiler is not guiding caselaw in this

appeal as everything the officer in Derichsweiler observed to create a reasonable

suspicion to make a stop was also testified to by that officer in court. The same

again goes for the State’s other cited case law in Bland v. Texas Dep’t of Pub.

Safety14 and Praska at 85-86.

      13
           348 S.W.3d 906, 914 (Tex. Crim. App. 2011)
      14
           No. 14-12-01057-CV, 2013 WL 3868447, at *4 (Tex. App. - Houston [14th Dist] July
           23, 2013, pet. denied)

                                              11
      Without any evidence to offer the trial court that Appellee was a “paranoid

speeding drunk” BEFORE Officer Castro arrived and observed zero traffic

violations, i.e. live testimony from the DPS Agent, there exists no evidence of

such for the trial court to consider. It is the State’s burden to prove its assertions

which in this case was to produce its witness to the alleged traffic violations.

V. Appellee never consented to this encounter with a person unknown to him

      Appellee was believably in fear for his own safety when pursued at

increasing and decreasing rates of speed by a foreign pick-up truck driven by an

unknown individual. The trial court made a finding to support Appellee’s

contention. (Supp CR17 - Finding No’s 3 & 4) Appellee would argue that human

beings with any sense of self-preservation do not subject themselves to that which

creates fear and apprehension. This is why Appellee refused to pull over earlier in

this pursuit, that the vehicle following him was not law enforcement:

      Defense:      Okay. So why didn’t you pull over?

      Appellee:     It wasn’t a -- it was a pickup. I felt like it was some guy
                    chasing me. (RR2 - 41)


      Later in his testimony, Appellee stated that he feared that this person was

out to harm him, that he “was scared.” (RR2 - 42, lines 9-11) This fear and

apprehension fueled Appellee’s reason for pulling over, that this person was still

                                           12
“on my tail” and Appellee needed to determine whether his safety was in jeopardy.

(RR2 - 43, lines 4-9)

       The State has attached the holding of Wade v. State15 into its brief to argue

that this was a “police - citizen interaction” that was a “consensual encounter”

between this DPS Agent and Appellee which “does not implicate the Fourth

Amendment”. The record clearly shows that the interaction between the DPS

Agent and Appellee was initiated by the DPS Agent and continued for a

considerable distance during which Appellee was in fear and concern for his own

safety. The Appellee did not consent to this and the Fourth Amendment applies in

this situation.

       The State is misguided in its attempt to bridge a nexus between the facts of

the instant case and the holding in Wade. The consensual encounter in Wade dealt

with a defendant sitting stationary in his work van near the public boat ramp of

Lake Waco in China Spring, Texas. A Texas game warden docked his boat to

investigate this work van parked by the boat ramp as it trailered a work trailer, not

a boat trailer and no fishing equipment or implements were present.

       Defendant Wade on his own volition, rolled his window down to engage the

officer in conversation. The officer was just assuring that the “occupant was okay”


       15
            422 S.W.3d 661, 667-668 (Tex. Crim. App. 2013)

                                              13
wherein the officer then became suspicious of Wade’s behavior. The officer

testified that Wade presented “unordinary nervousness”, that his story of why he

was parked there changed, and Wade gave “strange responses” to his questions.

This suspicion led to a search of Wade’s van which discovered drugs.

       The “police - citizen interaction” seen in Wade is nothing like the facts of

this case. A Texas Game Warden walking in uniform from a conspicuously

marked game warden boat is a clear sign of law enforcement authority. Wade

voluntarily rolled his window down to engage this known law enforcement officer.

Appellee was not a part of such a clearly marked and calm scenario as was

described in Wade.

       Most interesting to note about Wade is the fact that in this “consensual

encounter”, the Texas Court of Criminal Appeals ruled in the defendant’s favor. It

overruled the trial court’s denial of Wade’s motion to suppress and reversed the

Court of Appeals decision affirming the trial court’s denial.16 Though Appellee’s

interaction with the DPS Agent was clearly not consensual, even if it was, Wade

further reinforces Appellee’s rights under the Fourth Amendment to be “secure in

       16
          “Neither nervousness nor a refusal to cooperate with an officer during a consensual
encounter are sufficient by themselves to constitute reasonable suspicion. Nor were they
sufficient in combination with appellant's statements about his reasons for coming to the boat
launch to provide the basis for the detention and frisk. Appellant's statement about the pipe in his
truck was derived from the warden's illegal detention and was “fruit of the poisonous tree,” and
therefore that statement could not provide probable cause for searching appellant's truck.” Id. 676

                                                14
his person”.

      The State has also quoted an unpublished case that discussed Wade - Allen

v. State17. This case is not pertinent to determine whether or not Appellee’s

encounter with the DPS Agent was consensual as the interaction between police

and the defendant in Allen was not consensual. The officer in the Allen case

followed the defendant’s vehicle without the driver’s consent until he viewed a

traffic violation and made a valid traffic stop. As has been seen in all of the cases

cited by the State, the officers in both Wade and Allen who observed the activity

that led to reasonable suspicion also testified live in court.

      Lastly, the State in its quote of Wade, it has referenced the “Mendenhall

test”18 for determining whether a seizure has occurred under the Fourth

Amendment. The question in Mendenhall was whether, in light of the surrounding

circumstances, “a reasonable person would believe he was free to leave.”

      The facts of Mendenhall are not similar to the instant case in any respect

and the test is not applicable to support the State’s argument. Sylvia Mendenhall

was seen walking through the Detroit Airport and federal DEA Agents working at

the Airport found her movements to be highly suspicious. The agents approached


      17
           13-13-00188-CR, 2014 WL 4402135, at *2-4 (Tex.App. - Corpus Christi, Sept 4, 2014)
      18
           United States. v. Mendenhall, 446 U.S. 544, 554 (1980)

                                               15
Ms. Mendenhall, identified themselves as federal Drug Enforcement Agency

agents, asked her a series of questions about her travels, and asked her if she

would accompany them to their office at the Detroit Airport. Ms. Mendenhall

voluntarily joined the agents and went to the office.

      At the DEA office, the agents asked to inspect Ms. Mendenhall’s handbag

and told her that she could decline to allow such search. Ms. Mendenhall did not

assert any objection to the search and allowed it. That search revealed nothing

however the next search of her person, by a female officer after gaining the same

un-objected to consent, revealed drugs. Since Ms. Mendenhall was free to leave

during this questioning and voluntarily stayed, there was no search and seizure

under the Fourth Amendment. Justice Potter Stewart’s opinion concluded:

      “Respondent’s Fourth Amendment rights were not violated when she went
      with the agents from the concourse to the DEA office. Whether her consent
      to accompany the agents was in fact voluntary or was the product of duress
      or coercion is to be determined by the totality of all the circumstances.
      Under this test, the evidence -- including evidence that respondent was not
      told that she had to go to the office, but was simply asked if she would
      accompany the officers, and that there were neither threats nor any show of
      force -- was plainly adequate to support the District Court’s finding that
      respondent voluntarily consented to accompany the officers.” Id. at


      The Mendenhall case about voluntariness and consent under the Fourth

Amendment does not apply here. First, Appellee was never appraised of the law



                                         16
enforcement status of his pursuer. Second, the interaction between this DPS agent

and Appellee was never consensual. Third, Appellee was never given an

opportunity to decline further search and pursuit as the pursuit began while in

vehicle transit. Lastly under Mendenhall, the totality of the circumstances clearly

show that Appellee pulled over under duress. For these reasons, the Mendenhall

test provides no assistance to Fourth Amendment analysis.

      Due to the lack of consent to the interaction between the DPS Agent and

Appellee, the State’s third issue should be overruled.

                      Failure to Adequately Brief the Issue

      Further, the Appellant’s brief “must contain a clear and concise argument

for the contentions made, with appropriate citations to authorities and to the

record.” Tex. R. App. P. 38.1(i). When the appellant’s brief contains no argument

or citation to any authority that might support an argument, the point of error is

inadequately briefed and presents nothing for review. Lucio v. State, 351 S.W.3d

878, 896 (Tex. Crim. App. 2011); see also Jackson v. State, 424 S.W.3d 140, 155

(Tex. App.—Texarkana 2014, pet. ref’d); Linney v. State, 401 S.W.3d 764, 783

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

      The reviewing court has no obligation to construct and compose a party’s

issues, facts, and arguments with appropriate citations to authorities and to the

                                         17
record. Lucio, 351 S.W.3d at 896; Busby v. State, 253 S.W.3d 661, 673 (Tex.

Crim. App. 2008).

      The State has cited no cases at all to flesh out the nature of its’ argument

that the “police-citizen interaction” between the DPS Agent and Appellee was a

consensual encounter. The State has made blanket references to small portions of

Wade, Allen, and Mendenhall which do not apply to this case. The State has failed

to properly brief its third issue and does not make a complete argument to show

any error in the trial court’s ruling.

      For this additional reason, the State’s third issue should be overruled.


                                       CONCLUSION

      Faced with this evidence, the trial court could only reach the legal

conclusion that the defense’s motion to suppress should be granted. The trial

court’s grant of Appellee’s motion was grounded in the record and was correct

under applicable theories of law.19

                                          PRAYER

      For the foregoing reasons, the Appellee respectfully requests that the

judgement of the trial court be affirmed.



      19
           Valtierra v. State, 310 S.W.3d 442, 447-448 (Tex. Crim. App. 2010)

                                               18
Respectfully submitted,


/s/ Travis Berry
Travis Berry
Texas Bar No. 24059194
P.O. Box 6333
Corpus Christi, Texas 78466
T: (361) 673-5611; F: (361) 442-2562
travisberrylaw@gmail.com

ATTORNEY FOR APPELLEE




  19
                         CERTIFICATE OF SERVICE

      This is to certify that on this 23rd day of June 2015, a true and correct

copy of the Appellant’s Brief has been sent via e-mail to A. Cliff Gordon, the

attorney for the State at the Nueces County District Attorney’s Office, 901

Leopard - Rm. 206, Corpus Christi, Texas 78401.

                                       /s/ Travis Berry
                                       Travis Berry


                      CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the

undersigned certifies this brief complies with the type-volume limitations

announced in Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure.

1.    The undersigned certifies that the Appellee’s Brief contains no more than
      3,968 words in proportionately spaced typeface, an amount of words within
      the limits set forth in Rule 9.4(i)(2)(B)

2.    The brief has been prepared in proportionately spaced typeface using
      WordPerfect 12 in 14 pt. Times New Roman. Footnotes have been used and
      are all accounted for in the above word count.

3.    The undersigned acknowledges a material misrepresentation in completing
      this certificate, or circumvention of the type-volume limits states in Rule
      9.4(i)(2)(B) of the Texas Rules of Appellate Procedure, may result in the
      Court striking the brief.

                                               /s/ Travis Berry
                                               Travis Berry

                                          20
