                                                                       PD-1316-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 10/21/2015 9:40:10 PM
                                                      Accepted 10/22/2015 1:21:37 PM
                                                                       ABEL ACOSTA
                      NO. PD-1316-15                                           CLERK


                IN THE
  COURT OF CRIMINAL APPEALS OF TEXAS

            CRISTAN DRAYCE WILLIAMS
                       v.
               THE STATE OF TEXAS


APPELLANT’S PETITION FOR DISCRETIONARY REVIEW



                            Appeal from
               The Brazos County Court At Law No. 2
        Trial Court Cause Number No: 12-02846-CRM-CCL2
                               And
                The Tenth Court of Appeals of Texas
                   Cause Number 10-14-00307-CR


              LAW OFFICE OF BENTON ROSS WATSON
                         120 E. 1st Street
                          P.O. Box 1000
                     Cameron, Texas 76520
                         (254) 307-8181
                   (254) 231-0212—Facsimile
                   ross@texastopdefense.com
                     State Bar No. 24077591


             ORAL ARGUMENT REQUESTED



October 22, 2015
      NAMES OF THE PARTIES TO THE FINAL JUDGMENT



                          STATE OF TEXAS
                     Ms. Rodney W. Anderson
                      Brazos County Attorney
                  Brazos County Attorney’s Office
                        300 East 26th Street
                            Suite 1300
                        Bryan, Texas 77803


              APPELLANT’S TRIAL COUNSEL
                              John Paschall
                              P.O. Box 681
                          Franklin, Texas 77856

          APPELLANT’S COUNSEL ON APPEAL
                           Benton Ross Watson
                             120 E. 1st Street
                             P.O. Box 1000
                          Cameron, Texas 76520

                     TRIAL COURT JUDGE
                         The Honorable Jim Lock
                           County Court Judge
                           300 E. 26th, Ste. 214
                           Bryan, Texas 77803




Appellant Williams—PDR                              I
                                    TABLE OF CONTENTS

  NAMES OF THE PARTIES TO THE FINAL JUDGMENT .................. I	  
  TABLE OF CONTENTS .........................................................................II	  
  INDEX OF AUTHORITIES .................................................................. IV	  
  STATEMENT REGARDING ORAL ARGUMENT ............................ VI	  
  STATEMENT OF THE CASE .............................................................. VI	  
  STATEMENT OF PROCEDURAL HISTORY ................................... VII	  
  GROUNDS FOR REVIEW ................................................................ VIII
   1. The Waco Court of Appeals disregarded established case law from
          this Court, the United States Supreme Court, and other Texas courts
          by finding the stop lawful.
   2. The Waco Court of Appeals applied an incorrect standard of review,
          and gave undue deference to the determinations of the trial court and
          officer.
  I. GROUNDS RESTATED:..................................................................... 1	  
         The Waco Court failed to follow case law of this Court, the United
         States Supreme Court, and other Texas courts. .................................. 1	  
  A.	   Reasons for Granting Review: ............................................................ 2	  
  B.	   Factual Basis. ...................................................................................... 3	  
  C.	   Argument. ........................................................................................... 5	  
   1. The Waco Court ignored Fourth Amendment precedent requiring that
      behavior provide a sufficient link to criminal activity. ....................... 5
    a. The Waco Court erred by finding Mr. Williams’s driving behavior
       unusual, and failing to discuss how it was unusual. ........................... 6
    b. The Waco Court erred by finding, and failing to discuss how, Mr.
       Williams’s driving behavior was reasonably linked to DWI. ............. 8
   2. The Waco Court erred by conducting an improper review of the
      objective facts, which did not support the officer’s conclusion that
      Mr. Williams’s driving behavior was linked to DWI. ...................... 11
    a. The Waco Court could not uphold the stop because the objective
       facts failed to support Sergeant Summers’ conclusion that Mr.
       Williams’s behavior was linked to crime. ........................................ 11
    b. Officer training and experience also could not supply a basis for
       upholding the stop. ............................................................................ 13

Appellant Williams—PDR                                                                                            II
   D.	   Conclusion. ....................................................................................... 14	  
   PRAYER ................................................................................................ 15	  
   CERTIFICATE OF SERVICE .............................................................. 15	  
   CERTIFICATE OF COMPLIANCE.......................................................17	  
   APPENDICES........................................................................................ 18	  
        A-1: Memorandum Opinion

        A-2: Order Denying Rehearing




Appellant Williams—PDR                                                                                           III
                                   INDEX OF AUTHORITIES

United States Supreme Court Cases	  
Navarette v. California,
  134 S.Ct. 1683 (1968) ................................................................................. 9
Terry v. Ohio,
  392 U.S. 1 (1968) ........................................................................................ 5
United States v. Cortez,
  449 U.S. 411 (1981) ............................................................................ 13, 14
United States v. Sokolow,
  490 U.S. 1 (1989) ........................................................................................ 5	  

Texas Court of Criminal Appeals Cases
Arguellez v. State,
  409 S.W.3d 657 (Tex. Crim. App. 2013).................................................... 5
Derichsweiler v. State,
  348 S.W.3d 906 (Tex. Crim. App. 2011)................................................ 5, 9
Ford v. State,
  158 S.W.3d 488 (Tex. Crim. App. 2005)............................................ 12, 13
Foster v. State,
  326 S.W.3d 609 (Tex. Crim. App. 2010).............................................. 9, 10
State v. Kerwick,
  393 S.W.3d 270 (Tex. Crim. App. 2013).................................................... 5
Wade v. State,
  422 S.W.3d 661 (Tex. Crim. App. 2013).................................... 1, 2, 11, 12
White v. State,
  574 S.W.2d 546 (Tex. Crim. App. 1978).............................................. 6, 14
Woods v. State,
  956 S.W.2d 33, 38 (Tex. Crim. App. 1997)................................................ 5	  

Texas Appellate Court Cases
Davy v. State,
  67 S.W.3d 382 (Tex. App—Waco [10th Dist.] 2001, no pet.) ................... 9
Gamble v. State,
  8 S.W.3d 452 (Tex. App.—Houston 1999, no pet.) ............................. 8, 14
State v. Jevari Edward Police,
  377 S.W.3d 33 (Tex. App.—Waco [10th Dist.] 2012, no pet.) ............ 8, 10
Thompson v. State,

Appellant Williams—PDR                                                                                        IV
 408 S.W.3d 614 (Tex. App.—Austin 2013, no pet.) .................................. 5
Williams v. State,
 No. 10-14-00307-CR, 2015 Tex. App. LEXIS 7928 (Tex. App.—Waco [10th
 Dist.] July 30, 2015, pet. filed) (mem. op., not designated for publication.)..1, 6

Other Authorities
United States v. Jenson,
 462 F.3d 399 (5th Cir. 2006) .................................................................... 13
United States v. Martin
 679 F. Supp. 2d 723 (W.D. La. 2009)....................................................... 13

United States Constitution
U.S. CONST. amend. IV & XIV. .................................................... II, VI, 5, 13

Texas Constitution
TEX. CONST. art. I, § 9 .................................................................................. VI

Texas Rules of Appellate Procedure
TEX. R. APP. P. 47.1. ................................................................................. 2, 15
TEX. R. APP. P. 47.4. ....................................................................................... 7
TEX. R. APP. P. 66.3 (a), (c), (f) ...................................................................... 2

Texas Code of Criminal Procedure
TEX. CODE CRIM. PROC. ANN. art. 38.23 ...................................................... VI




Appellant Williams—PDR                                                                                      V
            STATEMENT REGARDING ORAL ARGUMENT

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

      Petitioner requests oral argument. Argument would benefit the

Court because the facts present a unique search and seizure question not

thoroughly discussed by Texas appellate courts, important constitutional

concepts are implicated, and the decision would affect daily actions of

ordinary citizens.


                       STATEMENT OF THE CASE

      This appeal challenges a trial court’s denial of a motion to suppress

regarding an illegal traffic stop. See TEX. CONST. art. I, § 9, U.S. CONST.

amend IV and XIV, and TEX. CODE CRIM. PROC. ANN. art. 38.23. (See trial

court’s denial of motion to suppress on the record at II R.R. 37:3.).




Appellant Williams—PDR                                                        VI
               STATEMENT OF PROCEDURAL HISTORY


      Mr. Williams was arrested for DWI and possession of marijuana on

February 26, 2012. Mr. Williams pleaded guilty to possession of marijuana

on July 31, 2014, after the trial court denied his motion to suppress.

      Appeal was made to the Waco Court of Appeals shortly thereafter. On

July 30, 2015, the Waco Court issued a memorandum opinion affirming the

trial court’s decision. Cristan Drayce Williams v. State, No. 10-14-00307-

CR, 2015 Tex. App. LEXIS 7928 (Tex. App.—Waco [10th Dist.] July 30,

2015, pet. filed) (mem. op., not designated for publication). (Appendix A-1)

      Mr. Williams filed a Motion for Rehearing on August 13, 2015, which

the Waco Court denied on August 20, 2015. (Appendix A-2)




Appellant Williams—PDR                                                       VII
                         GROUNDS FOR REVIEW



   1. The Waco Court of Appeals disregarded established case law from
      this Court, the United States Supreme Court, and other Texas courts
      by finding the stop lawful.

   2. The Waco Court of Appeals applied an incorrect standard of review,
      and gave undue deference to the determinations of the trial court and
      officer.




Appellant Williams—PDR                                                   VIII
I. GROUNDS RESTATED:
The Waco Court failed to follow case law of this Court, the United States
Supreme Court, and other Texas courts.

       The only behavior offered to link Mr. Williams to crime was his

driving around a parking garage floor three times. There was nothing

else about his behavior. He did not drive unsafely or “irregularly”, or

exhibit “any bad driving.” (II R.R. 10:24; 12:1.). His presence in the

garage also was not unusual, and the officer “didn’t think too much of it.”

(Id. at 20:5-6.).

       The Waco Court of Appeals simply rubber-stamped the state’s

position in, essentially, two sentences, stating:

       [I]nnocent people would not be driving laps around one
       particular level in a nearly empty parking garage at 3 a.m. on a
       Sunday morning an hour after the bars had closed… Based on
       the testimony at the hearing, Williams exhibited unusual
       activity which was related to the crime of driving while
       intoxicated.

Williams v. State, No. 10-14-00307-CR, 2015 Tex. App. LEXIS 7928, at *4

(Tex. App.—Waco [10th Dist.] July 30, 2015) (mem. op.).

       However, the state had the burden of proof, and the law makes clear,
       an officer and the Government must do more than simply label
       a behavior as "suspicious" to make it so. The Government must
       also be able to either articulate why a particular behavior is
       suspicious or logically demonstrate, given the surrounding
       circumstances, that the behavior is likely to be indicative of
       some more sinister activity than may appear at first glance.
Appellant Williams—PDR                                                        1
Wade v. State, 422 S.W.3d 661, 672 & n.47 (Tex. Crim. App. 2013).

      As well, courts must independently determine if a “set of historical

facts gives rise to reasonable suspicion.” Wade, 422 S.W.3d at 669.

      Thus, review should be granted because the Waco Court ignored

established case law requiring courts to look at the particular behavior for

linking suspects to crime, ignored objective facts underlying the officer’s

conclusion, and erroneously deferred to the trial court’s determination.

A. REASONS FOR GRANTING REVIEW:
      The Waco Court of Appeals failed to address “every issue raised

and necessary to final disposition of the appeal.” TEX. R. APP. P. 47.1.

      The Waco Court of Appeals’ decision concerns and decides important

questions of both state and federal law in a way that conflicts with decisions

of the United States Supreme Court, this Court, and other Texas appellate

courts. TEX. R. APP. P. 66.3 (a), (c).

      The Waco Court of Appeals has so far departed from the accepted and

usual course of judicial proceedings as to call for an exercise of the Court of

Criminal Appeals' power of supervision. TEX. R. APP. P. 66.3 (f).




Appellant Williams—PDR                                                         2
B. FACTUAL BASIS.

      Mr. Williams was stopped by Sergeant Summers because he drove

around the second floor of the Northgate parking garage three times. (II R.R.

20:12-20; 23:3-15; 25:10-12.). Northgate is the central entertainment district

for College Station, Texas, and is responsible for the majority of DWI

business transacted by the College Station police. (Id. at 16:23-25; 17:1-3.).

      Mr. Williams was not driving dangerously, erratically, frantically,

speedily or irregularly. (II R.R. 9:15-20; 10:7-10, 23-24; 11:1-4; 23:16-25.).

He did not display “any bad driving.” (Id. at 12:1.). He was not making

furtive movements or suspicious gestures, shouting obscenities, or creating a

threat or annoyance of any kind. (Id. at 10:11-13.). He was not standing

around, passed out behind the wheel, or asleep on top of, next to, or below a

vehicle. (Id. at 18:13-15.).

      Mr. Williams was not in a place the law forbid him to be. (Id. at 10:1-

6.). The garage was open to paying patrons who needed a place to park

while visiting Northgate businesses on Saturday through Sunday morning.

(Id. at 19:2-4; 17:6-7.). Mr. Williams was inside his truck within the garage

near 3:00 a.m. on Sunday around an hour from when the bars officially

closed at 2:00 a.m. (Id. at 17:18-25.). Although the garage had mostly




Appellant Williams—PDR                                                           3
cleared out, Mr. Williams was not the only one using the garage, and patrons

were still leaving past 2:00 a.m. (II R.R. 21:2-3; 18:3-12.).

      In fact, Sergeant Summers checked the garage “later on, as people

were leaving.” (II R.R. 18:3-4, 11-12.).

      Just before the stop, Sergeant Summers saw Mr. Williams parked in

the garage, and “didn’t think too much of it.” (II R.R. 20:5-6.). Sergeant

Summers only became suspicious moments later when he saw Mr. Williams

make three trips around the second floor of the parking garage. (Id. at 20:12-

17.). At that moment, Sergeant Summers concluded Mr. Williams was

driving while intoxicated, and stopped him based on that conclusion. (Id. at

11:18-24, 11:25-12:5.). Sergeant Summers admitted more than once that his

decision to stop was based on subjective conclusions. (Id. at 11:18-21,

11:25-12:1-2, 14:7-9, 10-11.).




Appellant Williams—PDR                                                         4
C. ARGUMENT.

1.    The Waco Court ignored Fourth Amendment precedent requiring
      that behavior provide a sufficient link to criminal activity.

      Reasonable suspicion requires the presence of unusual activity, a

connection from the unusual activity to the individual detained, and an

indication that the unusual activity is reasonably linked to crime. State v.

Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013).

      “The relevant inquiry is not whether particular conduct is innocent or

criminal, but the degree of suspicion that attaches to particular non-criminal

acts.” Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013)

(quoting Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.

2011) (quoting Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997)

(quoting United States v. Sokolow, 490 U.S. 1, 10 (1989)))).

      “At a minimum, the suspicious conduct relied upon by law

enforcement officers must be sufficiently distinguishable from that of

innocent people under the same circumstance as to clearly, if not

conclusively, set the suspect apart from them.” Thompson v. State, 408

S.W.3d 614, 626 (Tex. App.—Austin 2013, no pet.) (emphasis added).




Appellant Williams—PDR                                                           5
   a. The Waco Court erred by finding Mr. Williams’s driving behavior
      unusual, and failing to discuss how it was unusual.

      The Waco Court basically disposed of this case with one sentence:

“[I]nnocent people would not be driving laps around one particular level in a

nearly empty parking garage at 3 a.m. on a Sunday morning an hour after the

bars had closed.” Williams, 2015 Tex. App. LEXIS 7928, at *4.

      However, this Court already said driving around for several minutes

in a parking lot known for crime without any apparent purpose was not

unusual, and provided “no reason for suspicion whatsoever.” White v. State,

574 S.W.2d 546, 548 (Tex. Crim. App. 1978).

      Moreover, contrary to the appellate court’s representation, Mr.

Williams’s presence in the garage an hour after the bars closed at 2 a.m. was

not unusual.

      When Sergeant Summers first saw Mr. Williams parked in the garage

just before the stop, he “didn’t think too much of it.” (II R.R. 20:5-6.). The

garage was not closed, and Mr. Williams was not the only one there. (II R.R.

10:1-6; 18:5-16; 21:2-3.). Thus, being in the garage was not suspicious.

      Next, Sergeant Summers did not go check the garage until “people

were leaving.” (II R.R. at 18:3-4, 11-12.). Thus, driving in the garage at the

same time the officers were in the garage was not unusual because that was

around the time “people were leaving.” (Id.).

Appellant Williams—PDR                                                           6
          Further, once the bars closed, part of Sergeant Summers’ regular

duties was making sure people made their way to “their sober driver or

something like that safely…” (II R.R. 18:3-9.). Thus, the Waco Court

illogically assumed guilty, drunk people would be driving in the garage after

the bars closed because, actually, designated, “sober” drivers were regularly

present at that time. Indeed, Sergeant Summers admitted Mr. Williams could

have been looking for occupants, friends, or a lady friend. (II R.R. 20:12-20;

23:3- 15; 25:10-12.). Therefore, driving around the Northgate parking garage

at 3:00 a.m. was not unusual.

          Although a memorandum opinion is intended to be brief,1 the Waco

Court’s decision “exceeds what is permissible by failing to give any reason

whatsoever for its conclusion…” 2 that innocent people would not be in Mr.

Williams’s situation—when it is clear any designated driver, person leaving

a concert, or Northgate business employee on the way home would, in fact,

be in the same situation.




1
    TEX. R. APP. P. 47.4.
2
    Citizens Nat’l Bank in Waxahachie v. Scott, 195 S.W.3d 94, 96 (Tex. 2006).

Appellant Williams—PDR                                                           7
   b. The Waco Court erred by finding, and failing to discuss how, Mr.
      Williams’s driving behavior was reasonably linked to DWI.

      The Waco Court’s statement (that innocent people would not be doing

that) could have been said in virtually any case cited throughout this appeal.

      For instance, in Gamble v. State, 8 S.W.3d 452, 453 (Tex. App.—

Houston 1999, no pet.), it would have been real easy to say “innocent people

would not be out at 3:00 a.m.; be unknown to police; be in a high crime area

known for drugs and weapons, and responsible for roughly 70 police calls

per year; be in front of a house with its own history of incidents; be

repositioning themselves as officers drive by; and then walk away when

officers approach.” But, that’s obviously not what the Houston Court said

because it suppressed the stop.

      In State v. Jevari Edward Police, 377 S.W.3d 33, 37, 39 (Tex. App.—

Waco [10th Dist.] 2012, no pet.), the Waco Court could have easily said

“innocent people would not be unknown to police, out at midnight, make an

immediate turn after being tailed by police, turn onto a horseshoe shaped

street with no exit that was located in an area known for its high crime rate,

exit the area in less than 90 seconds, and drive in the opposite direction of

police.” But, the Waco Court did not say that because it affirmed suppression.

      The stop was suppressed because there were no “traffic violations,

irregularities, [or] dangerous, hazardous or reckless behavior…” Id. at 39.

Appellant Williams—PDR                                                           8
The “behavior was not bizarre and nothing suggest[ed] a pattern or repetition

of unusual behavior as was found in Derichsweiler [v. State, 348 S.W.3d

906, 917 (Tex. Crim. App. 2011), which] … presented a ‘close call.’” Id. at

39-40. “The noncriminal, not terribly unusual, nonrepetitive behavior

observed in [Police] was insufficient to objectively support a belief that

criminal activity was or soon would be afoot.” Id. The defendant “simply

made a legal turn in front of an officer into a neighborhood where criminal

activity occurred previously.” Id. at 40.

       Even this Court, in Foster v. State, required more than awkward

driving behavior to justify a stop at 1:30 a.m. a few blocks from Austin’s

Sixth Street bar district—even when supported by the detective’s “prior

training and experience in traffic patrol…” 326 S.W.3d 609, 610-11 (Tex.

Crim. App. 2010). Foster importantly demonstrated that the particular

behavior was indicative of crime—because it was “unsafe”, “erratic”, and

“aggressive” driving behavior commonly associated with DWI. Foster, 326

S.W.3d at 611 n.3, 614. See Navarette v. California, 134 S.Ct. 1683, 1691

(2014) (stating, “accumulated experience of thousands of officers suggests

these sorts of erratic behaviors are strongly correlated with drunk driving.”).

       Similarly, in Davy v. State, the Waco Court upheld the stop because

the defendant entered a closed parking lot, performed five circles, exhibited


Appellant Williams—PDR	                                                        9
plausibly evasive behavior, weaved, drove slowly, and came dangerously

close to the curb. 67 S.W.3d 382 (Tex. App.—Waco [10th Dist.] 2001, no

pet.). As in Foster, the particular driving behavior directly and verifiably

evidenced an element of DWI that correlated to the attendant circumstances.

      Thus, weaving, lurching, and similar behavior that occurs on a late

weekend night in a bar district will normally confirm reasonable suspicion of

DWI because the behavior evidences an element of crime commonly

associated with those attendant circumstances.

      Yet, the same is not true with driving around a parking lot because

that behavior actually indicates one’s ability to control a vehicle by

navigating through narrow lanes, making turns, keeping a safe and

consistent speed, judging distances, and maintaining steady steering.

      Thus, the court unreasonably assumed Mr. Williams’s behavior was

linked to crime just because he made legal, safe, and regular maneuvers in a

general area where crime occurred previously. Police, 377 S.W.3d at 40.




Appellant Williams—PDR                                                         10
2.     The Waco Court erred by conducting an improper review of the
       objective facts, which did not support the officer’s conclusion that
       Mr. Williams’s driving behavior was linked to DWI.

        The court of appeals incorrectly deferred to the trial court’s decision,

which merely deferred to the officer’s legal conclusion, because courts must

independently determine if a “set of historical facts gives rise to reasonable

suspicion.” Wade, 422 S.W.3d at 669.

     a. The Waco Court could not uphold the stop because the objective
        facts failed to support Sergeant Summers’ conclusion that Mr.
        Williams’s behavior was linked to crime.

       Sergeant Summers admitted several times that his decision to stop was

based on subjective conclusions. (II R.R. 11:18-21, 11:25-12:1-2, 14:7-9,

10-11.). But, the trial court should not have accepted Sergeant Summers’

subjective opinions because, objectively, Mr. Williams did not drive

“irregularly” (id. at 10:24), or display “any bad driving.” (Id. at 12:1.).

       Additionally, Mr. Williams exhibited no lurching, weaving,

inconsistent speed or acceleration, jerky maneuvers, or indication that he

could not maintain control of his truck while he operated it. The record

includes no evidence of Mr. Williams pausing and peering, making sudden

starts and stops, or varying his speed in such a way as to indicate that he was

confused about where he was or what he intended to do.




Appellant Williams—PDR                                                         11
      Therefore, driving safely, steadily, effectively, regularly, without

suspicious or furtive gestures, without violating any traffic laws, and

“without … any bad driving”, could not provide Sergeant Summers’ mere

opinion with “objective factual support.” Ford v. State, 158 S.W.3d 488, 494

(Tex. Crim. App. 2005). See Wade, 422 S.W.3d at 671 (stating, “What

matters are the objective facts that indicate criminal activity, not the officer's

characterization of them.”); Abney v. State, 394 S.W.3d 542, 544-50 (Tex.

Crim. App. 2013) (holding that “an officer’s mistake about the legal

significance of facts, even if made in good faith, cannot provide …

reasonable suspicion.” (citing Robinson v. State, 377 S.W.3d 712, 722 (Tex.

Crim. App. 2012)); Torres v. State, 182 S.W.3d 899, 903 (Tex. Crim. App.

2005) (finding that reasonable suspicion must be established by facts, not

conclusory statements); Garcia v. State, 43 S.W.3d 527, 531 (Tex. Crim.

App. 2001) (refusing to defer to an officer's legal conclusion about

reasonable suspicion—“we will not use [the officer’s] ‘legal conclusion’ that

a seat belt violation may have occurred to imply more than what his

testimony reveals: that the child looked back several times.”); Viveros v.

State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992) (refusing to defer to officers’

opinions and beliefs that activity was related to crime).




Appellant Williams—PDR                                                          12
   b. Officer training and experience also could not supply a basis for
      upholding the stop.

      Courts must not defer to officer training and experience when they do

not help interpret the specific facts in question. Terry v. Ohio, 392 U.S. 1,

27 (1968) (finding that due weight cannot be accorded to inferences drawn

by an officer unless he is “entitled to draw [them] from facts in light of his

experience.”); United States v. Cortez, 449 U.S. 411, 418 (1981) (discussing

the Fourth Amendment’s “demand for specificity in the information upon

which police action is predicated.” (quoting Terry, 392 U.S. at 21, n.18));

Ford, 158 S.W.3d at 492, 493-94 (finding that, when officers rely on

specialized training, they must specifically articulate objective facts

supporting why they are entitled to that reliance.). See also United States v.

Martin, 679 F. Supp. 2d 723, 734 (W.D. La. 2009) (stating courts may not

“rubberstamp an officer's proffered rationale simply because he invokes his

training and experience.” (discussing United States v. Jenson, 462 F.3d 399,

404-05 (5th Cir. 2006)).

      Despite abundant DWI training, Sergeant Summers never articulated

how any training aided the conclusion that driving around a parking lot

equated to drunk driving. (II R.R. 15:19-16:20.).

      As well, of the hundreds of DWI arrests made by Sergeant Summers,

not one was for “just driving around a parking lot.” (II R.R. 22:2-3.).
Appellant Williams—PDR                                                           13
Because Sergeant Summers had no experience with this particular type of

behavior, he was not “entitled to draw [any inferences] from facts in light

of his experience.” Terry, 392 U.S. at 27. But, even if he was, Sergeant

Summers never even attempted to relate how Mr. Williams’s movement

was similar to those of intoxicated drivers he observed in prior cases.

      In other words, Sergeant Summers’ conclusions were unacceptable

because he did not correlate driving around a parking lot three times with

any “modes or patterns of operation of certain kinds of lawbreakers.” Cortez,

449 U.S. at 418; see also White, 574 S.W.2d at 547 (noting officer’s failure

to correlate behavior to any person fitting criminal description), and Gamble,

8 S.W.3d at 454 (discussing officer’s failure to specify that defendant’s

movement “fit a specific criminal profile.”).

      Thus, Sergeant Summers’ claims of training and experience did not

support his opinion that driving around a parking lot three times was

somehow associated with DWI.

D. CONCLUSION.
      The Waco Court of Appeals failed to discuss Mr. Williams’s claims

that the behavior was not suspicious, or indicative of crime; that the officer

was not entitled to rely on experience or training; that the trial court

impermissibly deferred to the officer’s legal conclusions, opinions about


Appellant Williams—PDR                                                           14
legal significance of facts, and interpretation of legal issues; and that the

officer’s opinion was not supported by objective factual support. Thus, the

appeals court also failed to address “every issue raised and necessary to final

disposition of the appeal.” TEX. R. APP. P. 47.1.



                                   PRAYER


      Mr. Williams prays this Honorable Court grant the petition, and order

briefing to further consider reversing the decision of the Waco Court of

Appeals, and either rendering a decision, or remanding for more thorough

consideration.

                                         Respectfully submitted,

                                         _________________________
                                         Benton Ross Watson
                                         120 E. 1st Street / Box 1000
                                         Cameron, Texas 76520
                                         Tel: 1 (254) 307-8181
                                         Fax: 1 (254) 231-0212
                                         ross@texastopdefense.com
                                         State Bar No. 24077591
                                         Attorney for Cristan Drayce Williams



                       CERTIFICATE OF SERVICE

      This is to certify that on October 21, 2015, a true and correct copy

of the above and foregoing document was served on the Brazos County

Appellant Williams—PDR                                                          15
Attorney’s Office by electronic transmission to

rodanderson@brazoscounty and equisenberry@brazoscountytx.gov,

and by certified mail return receipt requested to 300 E. 26th Street,

Suite 1300, Bryan, Texas 77803.

                                              _______________________
                                              Benton Ross Watson




Appellant Williams—PDR                                                  16
   CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

         Certificate of Compliance with Type-Volume Limitation,
          Typeface Requirements, and Type Style Requirements

   1. This brief complies with the type-volume limitation of TEX. R. APP. P.
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   2. This brief complies with the typeface requirements and the type style
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   3. The electronic file is virus and malware free.



____________________________________________
(Signature of filing party)
 Benton Ross Watson
____________________________________________
(Printed name)

  Solo Practitioner
____________________________________________
(Firm)

  October 21, 2015
___________________________________________
(Date)




Appellant Williams—PDR                                                    17
                            APPENDICES



                         TABLE OF CONTENTS

      I.    Waco Court of Appeals

            Memorandum Opinion
                                             App. A-1.
            Order Denying Rehearing
                                             App. A-2.




Appellant Williams—PDR                              18
   APPENDIX A-1
MEMORANDUM OPINION
                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00307-CR

CRISTAN DRAYCE WILLIAMS,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                      From the County Court at Law No. 2
                             Brazos County, Texas
                      Trial Court No. 12-02846-CRM-CCL2


                           MEMORANDUM OPINION


      Cristan Drayce Williams pled guilty to the offense of possession of marijuana,

under two ounces. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West

2010). The trial court deferred a finding of guilt and placed Williams on community

supervision for 18 months. Because the trial court did not err in denying Williams’s

motion to suppress, the trial court’s judgment is affirmed.

      Williams was parked with his vehicle’s engine running on the second level in a

parking garage of a well-known entertainment and bar district at 3 a.m. on a Sunday
morning. The bars had closed an hour before. The garage was nearly empty. Sgt. Jason

Summers of the College Station Police Department was on bicycle patrol of the garage

and noticed Williams’s parked vehicle. Summers then rode up to the fourth level to

check it to make sure it was clear and make sure there were no people passed out in

their cars or on the pavement. When he returned to the second level, Summers saw

Williams in his vehicle make at least three laps around the second level. Summers

suspected that Williams may be intoxicated and was having trouble either reading the

exit signs or finding the ramp to go down. Summers decided to detain Williams and

when he did, he arrested Williams for driving while intoxicated and possession of

marijuana.1

          Prior to Williams’s plea, Williams complained in a motion to suppress that,

among other things, he was detained without reasonable suspicion. After a hearing, the

trial court denied the motion to suppress.

          When reviewing a trial court's ruling on a motion to suppress, we view the

evidence in the light most favorable to the trial court’s ruling. State v. Robinson, 334

S.W.3d 776, 778 (Tex. Crim. App. 2011); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.

App. 2006). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given to their testimony. Wiede v. State, 214 S.W.3d 17,

24-25 (Tex. Crim. App. 2007). Therefore, we give almost total deference to the trial


1   At the time of the suppression hearing, Williams was still on bond for the DWI arrest.

Williams v. State                                                                            Page 2
court's rulings on (1) questions of historical fact, even if the trial court's determination of

those facts was not based on an evaluation of credibility and demeanor; and (2)

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor of the

witnesses, such as the determination of reasonable suspicion, we review the trial court's

ruling on those questions de novo. Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim.

App. 2011); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

        In an investigatory stop, the totality of the circumstances — the whole picture —

must be taken into account. Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000). A

detention based on reasonable suspicion must be temporary and last no longer than is

necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.

Ct. 1319, 75 L. Ed. 2d 229 (1983). Reasonable suspicion exists if the officer has specific,

articulable facts that, when combined with rational inferences from those facts, would

lead him to reasonably conclude that a particular person actually is, has been, or soon

will be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim.

App. 2007).         Otherwise stated, those specific, articulable facts must show unusual

activity, some evidence that connects the detained individual to the unusual activity,

and some indication that the unusual activity is related to crime. Derichsweiler v. State,

348 S.W.3d 906, 916 (Tex. Crim. App. 2011). Circumstances that an officer relies on


Williams v. State                                                                        Page 3
"must be sufficiently distinguishable from that of innocent people under the same

circumstances as to clearly, if not conclusively, set the suspect apart from them." Wade

v. State, 422 S.W.3d 661, 670 (Tex. Crim. App. 2013) (quoting Crockett v. State, 803 S.W.2d

308, 311 (Tex. Crim. App. 1991)).

        Williams contends that because he was not violating the law or driving

erratically, his actions were not “sufficiently distinguishable from that of innocent

people.” But innocent people would not be driving laps around one particular level in

a nearly empty parking garage at 3 a.m. on a Sunday morning an hour after the bars

had closed. Further, it is the totality of the circumstances that must be taken into

account.

        Based on the testimony at the hearing, Williams exhibited unusual activity which

was related to the crime of driving while intoxicated.         Accordingly, viewing the

evidence in the light most favorable to the trial court’s ruling and taking into account

the totality of the circumstances, we find Sgt. Summers had reasonable suspicion to

detain Williams. The trial court did not err in denying Williams’s motion to suppress,

and Williams’s sole issue is overruled.

        Having overruled Williams’s sole issue, we affirm the trial court’s judgment.




                                          TOM GRAY
                                          Chief Justice



Williams v. State                                                                    Page 4
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 30, 2015
Do not publish
[CR25]




Williams v. State                           Page 5
      APPENDIX A-2
ORDER DENYING REHEARING
                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-14-00307-CR

CRISTAN DRAYCE WILLIAMS,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                     From the County Court at Law No. 2
                            Brazos County, Texas
                     Trial Court No. 12-02846-CRM-CCL2


                                     ORDER


      Cristan Drayce Williams’s Motion for Rehearing is denied.

                                         PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Motion denied
Order issued and filed August 20, 2015
