                                                                       PD-0330-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 8/10/2015 10:09:54 PM
                                                       Accepted 8/11/2015 4:43:45 PM
                                                                       ABEL ACOSTA
                          PD-0330-15                                           CLERK

          COURT OF CRIMINAL APPEALS OF TEXAS




                     JAY SANDON COOPER

                              V.

                       STATE OF TEXAS




                    MOTION FOR REHEARING

                FILED BY JAY SANDON COOPER



                 ON APPEAL FROM
THE COUNTY COURT AT LAW NO.2, GRAYSON COUNTY, TEXAS
                CASE NO. 2011-2-1391.

     THE FIFTH COURT OF APPEALS AT DALLAS, TEXAS
                CASE NO. 05-14-00089-CR.


                                   JAY SANDON COOPER, PRO SE
                                           1520 JANWOOD DRIVE
  August 11, 2015                            PLANO, TEXAS 75075
                                                    (972) 358-8999
                                                          NO FAX
                                        jaysandoncooper@gmail.com
                                                     APPELLANT
                       ORAL ARGUMENT
                         REQUESTED

                              1
         IDENTITY OF JUDGE, PARTIES AND COUNSEL
TRIAL COURT JUDGE:    The Honorable Carol M. Siebman
                      County Court at Law No.2, Grayson County, Texas

PARTIES and COUNSEL:

Appellant:                Jay Sandon Cooper

             Counsel:     Jay Sandon Cooper, Pro Se
                          1520 Janwood Dr.
                          Plano, Texas 75075
                          (972) 358-8999
                          No Fax

             Trial:       J. Richard Dunn
                          Texas Bar Card No. 00783995
                          108 S. Crockett
                          Sherman, Texas 75090
                          (903)893-5535

             Appeal:      Pro Se

Appellee:                 State of Texas

                          Joe Brown
                          Criminal District Attorney
                          Grayson County, Texas
      Counsel:
             Trial:       Michael S. Kelly
                          Texas Bar Card No. 24055767
                          200 S. Crockett, Ste. 116A
                          Sherman, Texas 75090

             Appeal:      Karla R. Hackett
                          Texas Bar Card No. 01923400
                          200 S. Crockett, Ste. 116A
                          Sherman, Texas 75090
                          Phone: (903) 813-4361
                          Fax: (903) 892-9933


                                   2
                              TABLE OF CONTENTS
Identity of Judges, Parties, and Counsel……………………………………                     2

Table of Contents……………………………………………………………                                   3

Index of Authorities…………………………………………………………                                 4

Statement Regarding Oral Argument……………………………………….                          5

Statement of the Case……………………………………………………….                                6

Statement of Procedural History……………………………………………                           6

Grounds for Review…………………………………………………………                                   6

ISSUE 1. Roadside field sobriety tests are an unreasonable intrusion
on privacy, such that either a warrant supported by probable
cause is required, or an articulable exigency to establish an exception
to the warrant requirement, or consent. When there is no warrant,
and no exigency supported by probable cause, is refusing to give
consent to participate in roadside field sobriety tests probable cause
to be arrested for DWI?

ISSUE 2: Is refusing to give consent to participate in roadside field
sobriety tests an offense for which one can be arrested?

Argument……………………………………………………………………                                        6

Prayer……………………………………………………………………….                                        15




                                      3
                        INDEX OF AUTHORITIES

Cases                                                          Page
Berkemer v. McCarty, 468 U.S. 420, 421, 104 S. Ct. 3138, 3140,
      82 L. Ed. 2d 317 (1984)………………………………………………… 10

Blasi v. State, 167 Md. App. 483, 505, 893 A.2d 1152, 1164 (2006)…………. 11

City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502,
      96 L.Ed.2d 398 (1987)………………………………………………….. 10

Commonwealth v. Blais, 428 Mass. 294, 302, 701 N.E.2d 314, 319 (1998)….   11

Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-Amarillo, 2001)……………….. 14-15

Dixon v. State, 476 So.2d 1236, 1238 (Ala.Cr.App.1985)…………………….           12

Mahaffey v. State, 316 S.W.3d 633 (Tex.Crim.App.2010)……………………             6

Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135,
     124 L. Ed. 2d 334 (1993)………………………………………………11- 12

People v. Carlson, 677 P.2d 310, 317-18 (Colo. 1984)………………………..           11

Smith v. State, 606 So. 2d 174, 177 (Ala. Crim. App. 1992)………………….        12

State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999)………………. 13

State v. Blouin, 168 Vt. 119, 122, 716 A.2d 826, 828 (1998)…………………. 10

State v. Hogan, 2015 WI 76, ¶ 53 (July 10, 2015)…………………………….. 13

State v. McGuigan, 2008 VT 111, ¶ 17, 184 Vt. 441, 450,
       965 A.2d 511, 517 (2008)……………………………………………….. 11

State v. Nagel, 320 Or. 24, 34-36, 880 P.2d 451, 457-58 (1994)…………… 11, 12

United States v. Miller, 146 F.3d 274, 277-279 (5th Cir. 1998)……………….. 13



                                     4
Vicknair v. State, 751 S.W.2d 180, 190 (Tex.Crim.App.1988)
     (opinion on reh’g)………………………………………………………… 13

STATUTES AND RULES
U.S. Const. amend. I……………………………………………………………. 10

U.S. Const. amend. IV………………………………………………………….. 11

Tex. Const. art. I, § 9…………………………………………………………… 11

§§543.001 and 543.004(a)(1), Tex. Transp. Code……………………………… 15

             STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument.




                              5
                         STATEMENT OF THE CASE
      This is an appeal from a conviction for Driving While Intoxicated (First), on

January 23, 2014.     After a review for fundamental error, the judgment was

affirmed by the Fifth Court of Appeals at Dallas.

               STATEMENT OF PROCEDURAL HISTORY
      The Fifth Court of Appeals opinion was issued on January 8, 2015.

Appellant filed a Motion for Rehearing on January 23, 2015. The Motion for

Rehearing was overruled on February 9, 2015. A Motion to Extend Time to file

this Petition was granted on March 27, 2015. After Appellant’s Petition for

Review was refused, an extension of time to file this Motion for Rehearing was

granted on July 14, 2015, to and including August 10, 2015.

         GROUNDS FOR REVIEW / STATEMENT OF QUESTIONS
(Petitioner did not have access to the record at the time the Petition was prepared)

ISSUE 1. Roadside field sobriety tests are an unreasonable intrusion
on privacy, such that either a warrant supported by probable
cause is required, or an articulable exigency to establish an exception
to the warrant requirement, or consent. When there is no warrant,
and no exigency supported by probable cause, is refusing to give
consent to participate in roadside field sobriety tests probable cause
to be arrested for DWI?

ISSUE 2: Is refusing to give consent to participate in roadside field
sobriety tests an offense for which one can be arrested?
                                 ARGUMENT

STANDARD

      Questions of law are reviewed by this Court de novo. Mahaffey v. State, 316

S.W.3d 633 (Tex.Crim.App.2010).

                                          6
RECORD REFERENCES
    All references to the Reporter’s Record (RR) are to Volume (Vol.) 7, unless

otherwise stated. References to the RR follow this format: page number “:” lines.

Eg. 38:5-12 is RR Vol.7, page 38 at lines 5-12.

      Citations to the Clerk’s Record are to the page number identified in the

Index to Vol.1: CR1:(page numbers). Supplements will be identified by original

documents.

      CR1:22-105 is the ALR (Administrative License Revocation) hearing. It

was placed in the record along with the Motion to Suppress. The transcript from

the ALR hearing will be referred to by the page number of the transcript of the

Administrative License Revocation Hearing (“ALR” page number “:” line number)

at which the Arresting Officer testified.

ISSUE 1. Roadside field sobriety tests are an unreasonable intrusion
on privacy, such that either a warrant supported by probable
cause is required, or an articulable exigency to establish an exception
to the warrant requirement, or consent. When there is no warrant,
and no exigency supported by probable cause, is refusing to give
consent to participate in roadside field sobriety tests probable cause
to be arrested for DWI?
ISSUE 2: Is refusing to give consent to participate in roadside field
sobriety tests an offense for which one can be arrested?

SUMMARY OF THE ARGUMENT
   Without first developing probable cause to arrest Appellant for DWI, the

Arresting Officer sought to invade Appellant’s privacy to obtain what was not in

the officer’s plain sight by subjecting Appellant to roadside field sobriety tests, to


                                            7
which Appellant verbally refused to consent. Appellant was arrested for not

performing roadside field sobriety tests, which is not an offense in Texas.

Essentially, Appellant was arrested for refusing to give his consent to a warrantless

search. There was no probable cause for Appellant to be arrested and charged with

DWI.

STATEMENT OF FACTS
    CR1:22-105 will be referred to by the page number of the transcript of the

Administrative License Revocation Hearing (“ALR” page number “:” line number)

at which the Arresting Officer testified. The record shows that there are no facts in

dispute regarding the reason for this Motion for Rehearing. See State’s Exhibit 6

(RR Vol.9) (Officer’s Arrest Report). The third page of that report (identified as

“Narrative Report” at the top of the page) begins to describe the issue expressed

herein. Specifically, the last three (3) paragraphs on that page describe Appellant’s

verbal refusal to participate in roadside field sobriety testing. Appellant declined

to participate in Standard Field Sobriety Tests (SFST’s) (RR 37:17-19) and blow in

a Portable Breath Test (PBT) device. RR 37:20-25, after which Appellant was

handcuffed and seatbelted inside the locked police car. RR 38:5-12. The Arresting

Officer called his supervisor at home. ALR 28:1-2.           The Arresting Officer

documented in his arrest report narrative that he was instructed that if Appellant

refused to perform field sobriety tests that he should be arrested for DWI “since

[Appellant] was not giving [the Arresting Officer] a chance to determine if he was

                                         8
able to operate a motor vehicle safely.” See first page of the arrest report labeled

“Narrative Report” at the last paragraph. It is worthy of notation that at that point,

the Arresting Officer had not determined that Appellant was not able to operate a

motor vehicle safely. It is at least as worthy to note that Appellant had already

provided his Texas Driving License that established that he was able to operate a

motor vehicle safely. RR Vol.9, State’s Exhibit 6 (Arrest Report page 3 – first

page labeled “Narrative Report” at ¶5). The supervisor confirmed the practice of

arresting persons for not performing Field Sobriety Tests. ALR 28:7-10. Then,

Appellant was removed from the officer’s vehicle and the officer took the

handcuffs off of Appellant. See second page labeled “Narrative Report” at ¶2. In

the last paragraph of the second page labeled “Narrative Report”, the officer stated

that, after he terminated the HGN, Appellant was arrested for Driving While

Intoxicated.   There was nothing else previous to the final arrest to cause the

Arresting Officer to believe that Appellant was intoxicated. ALR 32:21-24. It was

Van Alstyne Police Department’s Standard Operating Procedure to arrest persons

who refuse to participate in Field Sobriety Tests. ALR 27:24 to 28:1. The State

argued that Mr. Cooper was arrested “because [the Arresting Officer] can’t get

[Appellant] to comply with that horizontal gaze nystagmus…” RR Vol.8, 54:14-

16.




                                          9
ARGUMENT AND AUTHORITIES

      “A traffic stop is usually brief, and the motorist expects that, while he may

be given a citation, in the end he most likely will be allowed to continue on his

way.” Berkemer v. McCarty, 468 U.S. 420, 421, 104 S. Ct. 3138, 3140, 82 L. Ed.

2d 317 (1984).     When the Arresting Officer wanted to further intrude on

Appellant’s privacy by conducting roadside field sobriety tests, Appellant

exercised his right to not give his consent. Appellant was ready to continue on his

way. A “defendant has a right to refuse performance of [field-sobriety exercises].”

State v. Blouin, 168 Vt. 119, 122, 716 A.2d 826, 828 (1998). Appellant’s refusal

was verbal, as was documented in the arrest report.

      The content of Mr. Cooper’s speech is protected by the First Amendment,

including his statement that he did not think that SFST’s and PBT were necessary.

RR 37:17-25; RR Vol.9, State’s Exhibit 6 (Arrest Report p.3); RR 45:7-9, 46:15-

17, 48:6-12 (critical of officer conducting HGN); City of Houston v. Hill, 482 U.S.

451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (“the First Amendment protects a

significant amount of verbal criticism and challenge directed at police officers.”);

U.S. Const. amend. I.

      Field sobriety tests are “a search or a seizure…” Com. v. Blais, 428 Mass.

294, 302, 701 N.E.2d 314, 319 (1998). “[W]e hold that the administration of field

sobriety tests by a police officer during a valid traffic stop constitutes a search


                                        10
within the meaning of the Fourth Amendment to the U.S. Constitution.” Blasi v.

State, 167 Md. App. 483, 505, 893 A.2d 1152, 1164 (2006); cf. Tex. Const. art. I, §

9. “To satisfy constitutional guarantees against unlawful searches and seizures,

therefore, a roadside sobriety test can be administered only when there is probable

cause to arrest the driver for driving under the influence of, or while his ability is

impaired by, intoxicating liquor or other chemical substance, or when the driver

voluntarily consents to perform the test.” People v. Carlson, 677 P.2d 310, 317-18

(Colo. 1984). There was nothing else previous to the final arrest to cause the

Arresting Officer to believe Appellant was intoxicated. ALR 32:21-24. Appellant

declined to participate in Standard Field Sobriety Tests (SFST’s) (RR 37:17-19)

and blow in a Portable Breath Test (PBT) device. RR 37:20-25.

      “The very nature of [field-sobriety tests] makes the use of force to compel

their performance obviously inappropriate.” State v. McGuigan, 2008 VT 111, ¶

17, 184 Vt. 441, 450, 965 A.2d 511, 517 (2008); citing Commonwealth v. Blais,

428 Mass. 294, 701 N.E.2d 314, 319 (1998).

      “[S]earches and seizures ‘ “conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and well delineated

exceptions.” ’ ” State v. Nagel, 320 Or. 24, 36, 880 P.2d 451, 458 (1994); citing

Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135, 124 L. Ed. 2d


                                         11
334 (1993) (Citations omitted). “The recognized exceptions to the search warrant

requirement are plain view, consent, incident to a lawful arrest, hot pursuit or

emergency situations, exigent circumstances coupled with probable cause, and stop

and frisk situations.” Smith v. State, 606 So. 2d 174, 177 (Ala. Crim. App. 1992);

citing Dixon v. State, 476 So.2d 1236, 1238 (Ala.Cr.App.1985).

      Field sobriety tests unreasonably intrude on a reasonable expectation of

privacy.

      First, the tests require defendant to perform certain maneuvers that are
      not regularly performed in public. Unlike the quality of one's voice or
      one's handwriting, people do not regularly display that type of
      behavior to the public—there is no reason to believe that motorists
      regularly stand alongside a public road reciting the alphabet, count
      backward from 107, stand upon one leg while counting from 1001 to
      1030, or walk a line, forward and back, counting steps and touching
      heel to toe. Compare 458 United States v. Dionisio, 410 U.S. 1, 14, 93
      S.Ct. 764, 771, 35 L.Ed.2d 67 (1973) (no expectation of privacy in a
      voice exemplar because a person's “voice is repeatedly produced for
      others to hear”) with Skinner v. Railway Labor Executives' Assn., 489
      U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989) (person
      has expectation of privacy in urine testing because urinating ordinarily
      is not done in public).

State v. Nagel, 320 Or. 24, 34-35, 880 P.2d 451, 457-58 (1994).


      In the last paragraph of the second page of the arrest report labeled

“Narrative Report”, the officer stated that, after he terminated the HGN (a roadside

field sobriety test), Appellant was arrested for Driving While Intoxicated. There

was nothing else previous to the final arrest to cause the Arresting Officer to


                                        12
believe Appellant was intoxicated. ALR 32:21-24. “[T]he extension of the stop for

field sobriety tests was not lawful.” State v. Hogan, 2015 WI 76, ¶ 53 (July 10,

2015).

      It is established in the case law that an officer must have probable
      cause to arrest a defendant without a warrant. See Anderson v. State,
      932 S.W.2d 502, 506 (Tex.Crim.App.1996)(citingNew York v. Harris,
      495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990)). Probable cause
      for an arrest exists where, at that moment, facts and circumstances
      within the knowledge of the arresting officer, and of which he has
      reasonably trustworthy information, would warrant a reasonably
      prudent person in believing that a particular person has committed or
      is committing a crime. See Smith v. State, 739 S.W.2d 848, 851
      (Tex.Crim.App.1987). Once an officer has probable cause to arrest, he
      may search the passenger compartment of a vehicle as a search
      incident to that arrest. See Williams v. State 726 S.W.2d 99
      (Tex.Crim.App.1986)(citing New York v. Belton, 453 U.S. 454, 101
      S.Ct. 2860, 69 L.Ed.2d 768 (1981)). It is irrelevant that the arrest
      occurs immediately before or after the search, as long as sufficient
      probable cause exists for the officer to arrest before the search.
      Williams, 726 S.W.2d at 101 (citing Rawlings v. Kentucky, 448 U.S.
      98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)).

State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999). Where there was

no probable cause, courts have reversed the conviction. United States v. Miller,

146 F.3d 274, 277-279 (5th Cir. 1998) (holding that when the “sole theory of

probable cause” was based on an act that the court found was “not a violation of

Texas law, no objective basis for probable cause justified the stop of” the

Appellant); See also Vicknair v. State, 751 S.W.2d 180, 190 (Tex.Crim.App.1988)

(opinion on reh’g) (“the sole reason” the officer gave for stopping Appellant’s



                                       13
vehicle was that he “believed” the Appellant had committed a traffic “infraction”

that the court ultimately determined was not a violation).

CONCLUSION

      The State argued that Mr. Cooper was arrested “because [the Arresting

Officer] can’t get [Appellant] to comply with that horizontal gaze nystagmus…”

RR Vol.8, 54:14-16. So, the law on the subject shows that, until now, a person

could refuse to give consent to being searched without a warrant or exigent

circumstances. Applying this situation to another level, if a homeowner refuses to

give consent to a warrantless search of their residence, can they be arrested?

Where does it end? In this case, the Arresting Officer wrote that his supervisor –

who was not at the scene of the traffic stop - told him that if Appellant refused to

participate in roadside field sobriety tests, charge him with DWI. Exercising one’s

right to refuse consent is never probable cause. The police cannot just charge

somebody with a crime because they refuse to give consent to be searched

unreasonably and unconstitutionally.

HARM

      Appellant contends that this situation is not subject to harmless error review.

But, in an abundance of caution, Appellant has shown harm by the errors

complained of. Consequently, this Court cannot but hold that the trial court's error

was harmful under Texas Rule of Appellate Procedure 44.2(a).” Davis v. State, 61


                                         14
S.W.3d 94, 99 (Tex.App.-Amarillo, 2001). Cooper was stopped and arrested

having committed no crimes. The allegation that Appellant was speeding was

subject only to a citation and to release on a promise to appear. §§543.001 and

543.004(a)(1), Tex. Transp. Code, for which no citation was issued. Then, he was

convicted having not committed the crime for which he was arrested. The State’s

own evidence proves Appellant’s innocence.

                            PRAYER
      WHEREFORE, Appellant requests that this Court of Criminal Appeals

grant his Petition and afterwards reverse and render judgment or remand to the trial

court for further proceedings consistent with this Court’s opinion.

                                      Respectfully submitted,

                                      /s/ Jay Sandon Cooper
                                      Jay Sandon Cooper
                                      1520 Janwood Dr.
                                      Plano, Texas 75075
                                      (972)358-8999
                                      NO FAX
                                      JaySandonCooper@gmail.com
                                      APPELLANT

                    CERTIFICATE OF COMPLIANCE
      This Brief complies with the requirements of Rule 9.4(i)(2)(D) because it is

produced on a computer in a conventional typeface no smaller than 14-point except

for footnotes, which are no smaller than 12-point; and contains 2,160 words.

                                      /s/ Jay Sandon Cooper



                                         15
          CERTIFICATE OF COMPLIANCE WITH RULE 79.2(c)
      This motion for rehearing is grounded only on substantial intervening

circumstances or on other significant circumstances which are specified in the

motion. This motion is made in good faith and not for delay.

                                      /s/ Jay Sandon Cooper

                       CERTIFICATE OF SERVICE
      A true and correct copy of the foregoing and attached documents were

electronically served to the following recipients, if that option was available

through the electronic filing manager, and if not, it was mailed to Appellee’s

counsel on August 10, 2015:

                              Joe Brown,
                              Criminal District Attorney
                              Grayson County, Texas
                               Karla R. Hackett
                               Texas Bar Card No. 01923400
                               200 S. Crockett, Ste. 116A
                               Sherman, Texas 75090
                               Phone: (903) 813-4361
                               Fax: (903) 892-9933
and in accordance with Rules 68.11 and 79.7, Tex.R.App.P., in the same manner it

was provided to:

                                Lisa C. McMinn
                                State Prosecuting Attorney
                                P. O. Box 13046
                                Austin, Texas 78711-3046
                                Telephone: (512) 463-1660
                                Fax: (512) 463-5724
                                information@spa.texas.gov



                                        16
and 10 paper copies will be delivered to the Clerk of this Court of Criminal

Appeals within three (3) business days as required by the Rules.

                                      /s/ Jay Sandon Cooper
                                      Jay Sandon Cooper




                                        17
