                                                                              ACCEPTED
                                                                          06-14-00221-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     7/22/2015 2:39:48 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

                      No.06 -14-00221-CR

                    COURT OF APPEALS                     FILED IN
                                                  6th COURT OF APPEALS
                 SIXTH DISTRICT OF TEXAS            TEXARKANA, TEXAS
                        TEXARKANA                 7/22/2015 2:39:48 PM
                                                      DEBBIE AUTREY
                                                          Clerk

                       Brian Woodard
                              Appellant
                            vs
                       The State of Texas
                               Appellee




________________________________________________________

       APPEAL FROM THE 254TH DISTRICT COURT OF HUNT
                       COUNTY, TEXAS
               RICHARD BEACOM, PRESIDING
__________________________________________________________

           REPLY BRIEF OF APPELLANT
__________________________________________________________

Charles E. Perry
State Bar No. 15799700
1101 Main Street
P.O. Box 720
Commerce, Texas 75429
Tel. 903-886-0774
Fax. 903-886-2043
Cell. 940-613-8439
Attorney for Mr. Woodard
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
BRAIN EUGENE WOODARD
BUSTER COLE UNIT, 3801 SILO ROAD ROAD
BONHAM, TEXAS 75418


ATTORNEY FOR APPELLANT

On Appeal:

Charles E. Perry
State Bar of Texas No. 15799700
1101 Main Street
Commerce, Texas 75429


ATTORNEY FOR THE STATE OF TEXAS


Kelli M. Aiken
Assistant District Attorney Hunt County
2500 Lee Street,
Greenville, Texas 75440




                                                   ii
                                 Table of Contents


Identity of parties and counsel……………………….............................................ii
Table of Contents…………………………………………………………………iii
Index of Authorities……………………………………………………………….iv
I.Statement of the Case…………………………………………………………….1

II.Statement Regarding Oral Argument……………………………………………1

III.Issues Presented……………………………………………………………… 1-2

IV.Statement of Facts………………………………………………………………2

V.Summary of the Argument…………………………………...………………3&4

VI.Argument and Authorities………………………………………………………4

1. The trial court committed reversible error in admitting and considering the
testimony of trooper Zane Rhone with respect to the stop and search for drugs after
he finished or should have finished his duties with respect to the traffic citation for
which the Appellant was stopped.
2. The trial court committed reversible error in admitting the testimony of trooper
Zane Rhone with respect to the stop and search for drugs since there was no
probable cause to stop the Appellant and the automobile the Appellant was driving.




VII. Conclusion and Prayer………………………………………...……………..13

Signature……………………………………………………………………….… 13

Certificate of
Service…………………………………………………………………..……..….13




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Index to Authorities

Cases:

Caballas v. United States, 405 U.S. 405(2005)……………………………..…4,5,8
Delaware v.Prause, 440 U.S. 675 at 686…………………………………….5,6,7,8
Florida v. Royer, 460 U.S. 491, 500 (1983)………………………………………4
Ford v. State, 158 S.W.3d 488(Tex.Crim.App.2005)…………………………..…9
Garcia v. State, 43 S.W. 3d 529, 530…………………………………………10,12
Maryland v. Pringle, 540 U.S. 371(2003)……………………………….……10.12
Rodriguez v. United States, 575 U.S. 1609 (2015)………………………..3,4,6,7,8
Terry v. Ohio, 392 U.S. 1(1968……………………………………………………4
United States v. Sharp,470 U.S. 675 at 686…………………………………...…4,5
United States v. Smith, 799 F.3d 704, 708(11th Cir.1986)……………………...6,10




Statutes:

Ohio Revised Code section 4501;4503.19-22;4513.02………………………4,9,11
Texas Transportation Code section 545. 062…………………………………...… 9
      504.945………….…………..........................................................................2


United States Constitution
Article IV section 1-Full Faith and Credit Clause………………………………4,10
Fourth Amendment-Unreasonable Search and Seizure………………………….…6




                                                                                               iv
I.     STATEMENT OF THE CASE This case involves Brian Eugene Woodard who

       was charged and indicted with the felony offense of possession of a controlled

       substance, namely cocaine, in an amount of 400 grams or more .(CR 8). He was

       tried before the 254th District Court of Hunt County, Texas without a jury

       beginning on October 20, 2014, 2014(See RR, V1-8). He was found guilty and

       sentenced to 40 years in the Institutional Division of the Texas Department of

       Criminal Justice on December 4, 2014. (CR 93-96). At trial, the defense raised and

       completed the requirements for a necessary defense. The trial judge denied this

       request. This appeal follows.

II.    STATEMENT REGARDING ORAL ARGUMENT


       The Appellant does not request Oral Argument.


III.   ISSUES PRESENTED

       The issues presented for review are:

       1.The trial court committed reversible error in admitting and considering the

       testimony of officer Zane Rhone with respect to the stop and search for drugs after

       he finished or should have finished his duties with respect to the traffic citation for

       which the Appellant was stopped.

       2.The trial court committed reversible error in admitting the testimony of officer



                                                                                                 1
      Zane Rhone with respect to the stop and search for drugs since there was no

      probable cause to stop the Appellant and the automobile Appellant was driving.



IV.   STATEMENT OF THE FACTS

      Trooper Zane Rhone was working on I-30 in Greenville, Hunt County, Texas when

      he first observed the Appellants car. (RR8/, p.11/19-25; p.12/1-25)The Appellant

      was stopped by DPS trooper Zane Rhone for following to close and not being able

      to read the name of the State on the license plate (RR8/ p. 12/21-25;p.13/1-4;13/5-

      12. Trooper Rhone testified the law prohibits more than half of the name of the

      state from being obscured.(RR8/ p. 13/17-22). Trooper Rhone testified that the

      Appellant was following to close to come to a stop to keep from colliding.(RR8/

      p.13/23-25;p.14/1-2;14/3-25) His testimony placed the Appellant at 40 feet from

      the car in front when it should have been 157 feet.(RR8/ p. 16/1-5). Officer Rhone

      testified later that there was nothing in his official report about stopping the

      Appellant for following to close to the car in front.(RR8/p.65/22-25;p. 66/1-5;

      p.66/6-14). Trooper Rhone testified that while he was on the side of the road he did

      not observe the Appellant following to close or his license plate being obstructed.

      (RR8/ p.62/7-22).Texas Transportation Code sec.504.945. He testified that he

      started up after the Appellant because he was curious as to two clean cars that did

      not have Texas plates.(RR8/, 63/2-9). He testified that when he pulled on to the


                                                                                            2
road because the car was clean this was not probable cause to stop the

Appellant(RR8/.p.79/17-25; 80/1-6).When trooper Rhone stopped the Appellant he

could smell air freshner and the car was clean (RR8/ p.17/16-22;18 p.18/2-5). His

testimony was that after the stop he could see that the plates were from Ohio

(RR.8/ P.16 /15-21. Trooper Rhone testified that the Appellant said that the license

plate bracket came from the dealer the way it was.(RR8/ p. 51/5-25; 52/1-5).

Appellant grandfather Mack Woodard testified that he bought the car in 2013 and

that the license plate frame came from the dealership where it was installed.(RR8/.

p. 101/ 2-25).

      While talking to the Appellant trooper Rhone testified that he was getting his

warning started.(RR8/. p. 25/ 11-15). Officer Rhone had testified while talking to

the Appellant he told the Appellant that he would get a warning but he said at that

time he had not written the warning.(RR8/ p.20/15-180).

V.SUMMARY OF THE ARGUMENT

A. The Appellant was detained and question beyond the reasonable time it should

have taken to issue a warning ticket for what the Texas Department of Public

Safety said Appellant was in violation of traveling to close to the car in front and

an obstructed license plate under Texas law and thus any and all contraband as a

result of the stop and search should have been suppressed. Rodriquez v. United

States, 575 U.S. 1609(2015)


                                                                                       3
B. The Appellant had the right to proceed down Interstate 30 in Hunt County,

Texas free from a stop by the Texas Department of Public Safety since the State of

Texas should recognize Ohio Revised Statutes 4501 et. seq. which allows and does

not prohibit the type of bracket placed on the vehicle Appellant was driving by the

dealer and used to secure the Appellants Ohio license plate under Article 4 section

1 of the “full faith and credit clause” of the United States Constitution. The stop of

the Appellant was unreasonable and pretextual.




VI. ARGUMENT AND AUTHORITIES

A. The court erred in admitting and considering the evidence of the search as well

as the contraband. The stop in the instant case was much like the stop in Terry v.

Ohio, 392 U.S. 1 (1868). In the case at bar we are dealing with the tolerable

duration of a police inquiry in a traffic stop context as determined by the seizure’s

mission—to address the traffic violation that warranted the stop. Caballes v.

United States, 405 U.S. 405 at 407. In United States v. Sharp,470 U.S

675,685(1985); Florida v. Royer, 460 U.S. 491,500(1983). This is where the scope

of the detention must be carefully tailored to the underlying justification. This is

only because the purpose of the stop may last longer than necessary to effectuate

the purpose. This was not done in the case at bar. The stop and lengthy detention


                                                                                        4
was what Caballes tries to prevent. Trooper Zane Rhone of the DPS when talking

to the Appellant told the Appellant he would be getting a warning but had not yet

written out the warning.(RR.8/ p. 20/15-18). Later while talking to the Appellant

trooper Rhone got the warning started.(RR. p. 11-15). Trooper Rhone had ample

time to complete the warning but did not do so. The authority for trooper Rhone

seizure of the contraband ended before he searched and seized the contraband

because of his delay in completing the task incident to the issuance of the traffic

warning ticket. The case at bar is similar to where the court said in United States v.

Sharp,470 U.S. 675 at 686 where the court said that the authority for the seizure

ends when the tasks tied to the traffic infraction are—or reasonably should have

been completed. The fact that officer Raine noticed that the car was clean of

smelled of air freshner (RR8/ p.17/15-22;p.18/ 2-5) does not justified a prolonged

stop time wise. Trooper Rhone admitted so as he pulled onto the road when he saw

the Appellant’s vehicle.(RR8/ p. 79/17-25); 80/1-6). The court laid out in Caballes,

543 U.S. at 408 that beyond determining whether to issue a traffic ticket, an

officer’s mission includes “ordinary inquires incident to the traffic stop. These

were set out in Delaware v. Prause, 440 U.S. 648, 659-660(1979) and included

inquires involving checking driver’s license, determining whether there are

outstanding warrants against the driver, and inspecting the automobile’s

registration and proof of insurance. In the case at bar all this was done and there


                                                                                      5
was no reason or probable cause for delay to justify a search and seizure of

contraband. For these reasons the contraband evidence should have been

suppressed and not admitted into evidence and considered by the court under the

4th Amendment to the United States Constitution as well as the case of Rodriguez

v. United States, 575 U. S. 1609(2015).

        Both State and Appellant have cited Rodriguez v, Untied States, 135 S. Ct.

1609 and this case sheds light on the instant case. As set out in the state’s brief

citing Rodriguez at 1615 the court sets out four prongs that measure the legality of

a traffic stop with respect to the time length and the necessity of issuing a ticket

and addressing safety concerns.

        See Delaware v. Prouse, 440 U.S. 648, 658-660(1979).1. Trooper Rhone

could have issued a warning or violation ticket had he chose to do so 2.He checked

the drivers license and identification 3. He easily had time to verify the registration

and insurance and 4. He had time to determine if the Appellant or other occupant

had outstanding warrants which they did not.

          Just because the occupant had a record (Appellant misdemeanors only)

with no outstanding warrants did not give Trooper Rhone the right to go further.

This would be true even after Trooper Rhone went further and found a .22 caliber

pistol in the glove box. The pistol was not open and obvious and the Appellant was

not prohibited from carrying a pistol because he was not engaged in any illegal


                                                                                       6
activity that was known to Trooper Rhone and was travelling. Trooper Rhone said

that he could not place gun with Appellant as the gun was in the glove box and

Appellant was away from the vehicle when the gun was found.(RR8/ p. 69 lines

23-25 and p. 70 lines 1-24). He also said that a person who is traveling had a right

to carry a firearm as long as he is not a convicted felon (RR 8/ p. 71 Lines 14-25)

       Appellant urges upon the court that the case at bar is a timing case much

like Rodriguez. While speaking with Appellant early on, trooper Rhone starting

writing a warning ticket while waiting on a return from dispatch.. He recieved

partial information back from dispatch during this conversation with

Appellant.(RR8/ p. 25 lines 10-17)

       The return from dispatch did not contain information under the doctrine laid

down in Delaware v. Prouse, 440 U.S. 648, 650-660(1979) that would warrant

trooper Rhone from going further.(vehicle occupant Mr. Person was a convicted

felon but there was no warrants on him).

      So as to measure the time line of the stop we can look at a line of

questioning by the state during the redirect examination of trooper Rhone. The

state ask trooper Rhone a line of questions with respect to Appellants alleged

obstructed license plate and how many times he mentioned the obstructed plate in

The case at bar is a case that squares with Rodriguez and is just like Rodriguez, a

time and delay case even though Rodriguez was a delay for a drug dog. The instant


                                                                                       7
case falls under Rodriguez and the time restraints Rodriguez places on such cases

after the four prongs are satisfied and not delayed.

    In order to evaluate the time the Appellant is urging upon the court we can

look at the times testified to by trooper Rhone with respect to the video(Exhibit

3).(RR/8 p. 77 lines 2-17). Those times were 1:15, 1:35, 2:04, 2:15, 2:34 and 6:00

(RR/8 p. 77 lines 21-25 and p. 78 lines 1-3). The stop and detention is what the

holding in Caballas tries to prevent when the court held a traffic stop “can become

unlawful if it is prolonged beyond the time reasonably required to complete the

mission of issuing a warning ticket.

      In summary there is no evidence with respect to the four prongs set out

above in Callallas and cited recently in Rodriguez , found in the facts of the instant

case to justify the time delay found here beyond the time to write the traffic ticket.

B. The Appellant was stopped by DPS trooper Zane Rhone for following to close

and not being able to read the name of the state on the license plate(RR8/ p.12/21-

25;p. 13/1-4;13/ 5-12. Officer Rhone testified that the Appellant was following to

close to keep to come to come to a stop from colliding.(RR8/ p. 13/23-25; p.14/1-

2; 14/3-25.His testimony placed the Appellant at 40 feet from the car in front when

it should have been 157 feet(RR p.16/1-5.However trooper Rhone further testified

that there was nothing in his official report of the incident at bar about the

Appellant following to close to the car in front(RR8/ p.65/ 22-25; p.66/1-5;66/ 6-


                                                                                         8
14). He also testified that while he was on the side of the road he did not observe

the Appellant following to close or his license plate being obstructed.(RR8/ p.

62/7-22). The state therefore did not sustain their burden with respect to following

to close as probable cause to stop the Appellant under Texas Transportation Code

section 545.062. In Ford v State, 156, S.W.3d 488 (Tex. Crim. App. 488, 493-494)

the court held that there had to be more than such statements of conclusion in order

to justify a stop for the reason of following to close.

       Trooper Rhone testified that he started up to follow the Appellant because he

was curious as to two clean cars that did not have Texas plates.(RR p. 63/2-9). The

officer testified further that he pulled upon the road because the car was clean but

this was not probable cause to stop the Appellant (RR8/ p. 79/ 17-25; 80/1-6). The

officer went on to testify that after pulling the Appellant over he could see that the

license plate was OHIO. According to trooper Rhone the Appellant told him that

the license plate holder plate came the way it was from the dealer.(RR8/p.51/5-25;

52/1-5). Appellants grandfather Mack Woodard confirmed this by testifying that the

license plate frame came from the dealer where it was installed.(RR8/p.101/ 2-25).

Under Ohio Revised Statutes sections 4501; 4503.19-22;4513.02 there are no

obstructive plate restrictions on Ohio license plates dealing with holder or frame

and the Ohio law was complied with at the dealership(RR8/ p.51/5-25;52/1-5).

When considering the evidence from Trooper Rhone as well as the Appellants


                                                                                         9
grandfather Mack Woodard the Appellants argues that the state of Texas should be

obligated to follow Ohio law under the “full faith and credit clause” of the United

States Constitution. In determining when an investigative stop is unreasonably pre-

textual, the proper inquiry is not whether the officer could validly have made the

stop but whether the officer under the same circumstances a reasonable officer

would have made the stop in the absence of an invalid purpose. United States v.

Smith, 799 F2d 704, 708( 11th Cir. 1986).When the testimony and reasoning of

trooper Rhone is considered in its entirety the stop is and was pretextual and thus

unreasonable.

      The State cites the doctrine laid down in Maryland v. Pringle, 540 U.S.

371(2003) that espoused the objective view of the “totality of the circumstances”

when viewing the circumstances of a law enforcement officer when making an

arrest.. This is a good step in evaluating the circumstances of the instant case. Next

the state lays out the doctrine of reasonable suspicion “that criminal activity will

occur shortly. Garcia v. State, 43 S.W. 3d 529, 530.

      These two cases place a burden on the state that does not seem to be met with

respect to the facts of the case at bar.

      We look at the two reasons stated by Trooper Rhone for the justification for

the stop of the Appellants vehicle. Trooper Rhone testified that Appellant was

following to close.(RR/8 p. 12, lines 5-17 and 55-66). Interstate 30 through Hunt


                                                                                       10
County is very congested and vehicles stack up close including trucks and this

situation could be aggravated by the truck traffic passing each other and cars lined

up trying to get through. Trooper Rhone could stop nine out of 10 vehicles for

something because of the congested mess at times. Ford v. State, supra. told us that

a statement of conclusion such as following too closely does not justify a stop

without more.

     The next prong for the justification of the stop by Trooper Rhone was the

partial cover of the license plate. Trooper Rhone did not size the Appellants license

plate after the stop (RR8/ p.66 lines 21-22).



     Appellant begs the court’s indulgence but will again reiterate the Ohio Revised

Statutes 4501; 4503; 19-22; 4513:02 that covers the situation with respect to where

the Appellants vehicle was bought, registered and titled. This state does not

preclude a partial covering of the plate by a license plate cover. Every state gives

full faith and credit to sister states vehicle license laws because there is such a

variance from state to state. As set of above the buyer of the appellants vehicle his

grandfather testified that the cover and plate came that way from the dealer.(RR8/p.

51 lines 5-25 and p. 52 lines 1-5).

      Trooper Rhone admitted that even thought Texas requires a front license plate

may sates do not and he does not pull such vehicles over when they do not display a


                                                                                        11
front plate, thus giving full faith and credit to these sister state’s license plate

laws.(RR8/ p. 74 lines 11-15; p. 75 lines 1-25 and p. 76 lines 1-13).

      As experienced and good a law enforcement officer is as Trooper Rhone is,

these facts would not seem to justify a stop under the facts he laid out on Interstate

30 in Hunt County under both Pringle and Garcia, supra.

      The search for contraband after the stop began with the observations laid out

by the state in their brief. Trooper Rhone and his experience with the cleanliness

and smell of freshness vehicles as applied to the Appellants vehicle. (RR8/ p. 12,

lines 5-17 and p 18, lines 2-16)

       Suppose there were two elderly gentlemen with gray hair travelling on

Interstate 30 in Hunt County, Texas with out of state plates and the vehicle was

extremely clean and smelled of air freshness would Trooper Rhone have drawn the

same suspicions as he set out in his testimony (RR8/ p. 10, lines 12-19). Saying

further Appellant would show that trooper Rhone testified that the subject vehicle

was brand new (RR8/ p.16 lines 6-10).Brand new vehicles are clean and have

freshners.

      The Appellant notes that there was no narcotics found on the person of

Appellant or other occupant of Appellants vehicle on in the passenger compartment

but the contraband that was found under the air intake filter cover that I under the

hood in the engine compartment.(RR8/ p. 33 line 25 and p. 34 line 1.)


                                                                                       12
VII.

Conclusion and Prayer

For the reasons stated in the Appellants Brief the Appellant requests this Court to

REVERSE the conviction and sentence of the defendant Brian Woodard and order

an acquittal or in the alternative remand the case to the trial court for a new trial.

                                              Respectfully submitted,

                                              By:/s/Charles E. Perry
                                              1101 Main Street
                                              Commerce, Texas 75428
                                              State Bar No. 15799700
                                              Tel:903-886-0774
                                              Fax:903-886-2043

        CERTIFICATE OF COMPLIANCE WITH T.R.A.P.9.4(1)(3)

   Relying on Microsoft Word count feature used to create the Reply Brief of the
Appellant, I certify that the number of words contained in this brief is 3505 and the
typeface used is 14 font.

                          Certificate of Service
                   nd
I certify on the 22 day of July, 2015, a true and correct copy of the foregoing was
delivered by email and to counsel for the state of Texas, Hunt County District
Attorney’s Office at the Hunt County Courthouse located at 2500 Lee Street in
Greenville, Hunt County, Texas by Charles E. Perry, Counsel for the defendant
Brian Woodard.

                                             /s/ Charles E. Perry




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