                                                                                        ACCEPTED
                                                                                   12-14-00298-CR
                                                                       TWELFTH COURT OF APPEALS
                                                                                    TYLER, TEXAS
                                                                             1/10/2015 12:03:08 PM
                                                                                      CATHY LUSK
                                                                                            CLERK

                           Court of Appeals
                           Court    Appeals
                                     Texas
                            State of Texas
                           Supreme Judicial District
                   Twelfth Supreme                          FILED IN
                                                     12th COURT OF APPEALS
                                    Texas
                             Tyler, Texas                 TYLER, TEXAS
_______________________________________________________________
                                                     1/10/2015 12:03:08 PM
                                                               CATHY S. LUSK
                                                                  Clerk
                          12-14-00298-CR
                          12-14-00298-CR
__________________________________________________________________

                               Eugene Pritchett
                        Robert Eugene
                              Appellant
                                 VS.
                          The State of Texas
                          The
                               Appellee
____________________________________________________________________

                    On Appeal from the 273
                    On                 273'“
                                           rd
                                              District Court
                        San Augustine County, Texas
                              Cause No.
                        Trial Cause     CR-13-8411
                                    No. CR-13-8411
_________________________________________________________________________

                              APPELLANT’ S BRIEF
                              APPELLANT’S   BRIEF
_______________________________________________________________________________

                        Respectfully Submitted,

                        DONOVAN PAUL
                        DONOVAN            DUDINSKY
                                     PAUL DUDINSKY
                                            24038869
                        Texas State Bar No. 24038869
                        701 South Liberty Street
                        701
                                              75972
                        San Augustine, Texas 75972
                                   275-9871
                        Tel. (936) 275-9871
                        Fax. (936)-275-9655
                                dpauldudinsky@yahoo.com
                        E-Mail: dpauldudinsky@yahoo.com

                        ATTORNEY FOR
                        ATTORNEY FOR APPELLANT
                                     APPELLANT
SUBMITTED FOR
SUBMITTED    FOR REVIEW
                  REVIEW
      Argument Not
(Oral Argument Not Requested)

                                  Page 11 of 60
                               OF PARTIES
                      IDENTITY OF
                   I. IDENTITY            AND COUNSEL
                                  PARTIES AND COUNSEL
       The following is a complete list of all parties to the trial court’s judgement
      The                                                                   judgement or
                             names and addresses of all trial and appellant counsel:
order appealed from, and the names

Parties:
Parties:       Appellant                             Eugene Pritchett
                                 Defendant -- Robert Eugene

Trial Counsel:                                         Eugene Pritchett
                                 For Defendant, Robert Eugene
                                 Donovan Paul Dudinsky
                                 Donovan
                                 Rudy Valesquez
                                 Rudy

Appellate Counsel:                              Donovan Paul Dudinsky
                                 For Appellant: Donovan
                                 701 South Liberty Street
                                 701
                                                       75972
                                 San Augustine, Texas 75972

Appellee Counsel:                                 Kevin Dutton, District Attorney
                                     Appellee: J. Kevin
                                 For Appellee:
                                       Box 714
                                 P. O. Box
                                                       75972
                                 San Augustine, Texas 75972

      Judge:
Trial Judge:                     Honorable Judge Charles Mitchell
                                 273”rd Judicial District
                                 273
                                                          75972
                                 San Augustine, Texas 75972




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                         Page 2 of 60
                                 II. TABLE OF
                                 II. TABLE    CONTENTS
                                           OF CONTENTS
I.
I.            IDENTITY OF PARTIES
              IDENTITY OF         AND COUNSEL.................2
                          PARTIES AND COUNSEL ............... ..2
II.           TABLE OF
              TABLE    CONTENTS ............................................. ..3-4
                    OF CONTENTS...............................................3-4
III.          INDEX OF
              INDEX OF AUTHORITIES..........................................5-9
                       AUTHORITIES ........................................ ..5-9
IV.           STATEMENT OF
              STATEMENT    THE CASE......................................11-12
                        OF THE CASE .................................... ..11-12
V.            ISSUES PRESENTED
              ISSUES           FOR REVIEW.........................13
                     PRESENTED FOR REVIEW ....................... 13                   ..




VI.           ARGUMENT AND
              ARGUMENT AND AUTHORITIES............................14-55
                           AUTHORITIES .......................... 14-55                 ..




                                       ~~
VII.          STATEMENT OF
              STATEMENT          FACTS .........................................
                              OF FACTS...........................................     ..


              Point of Error No. 1.......................................................14
              Point of Error No. 2.......................................................18-24
              Point of Error No. 3.......................................................32-34
              Point of Error No. 4.......................................................36-38
              Point of Error No. 5.......................................................44-47

VIII.         SUMMARY OF
              SUMMARY          ARGUMENTS ................................
                            OF ARGUMENTS..................................             ..


              Point of Error No. 1.......................................................14-15
              Point of Error No. 2.......................................................25
              Point of Error No. 3.......................................................34
              Point of Error No. 4.......................................................38-39
                                 5 ..................................................... ..47-48
              Point of Error No. 5.......................................................47-48

IX.           ARGUMENTS ............................................................
              ARGUMENTS..............................................................  ..


                                                                                 ........
                                                                                       ..   15-18
              Point of Error No. 1.......................................................15-18
                                                                                 ........ ..25-31
              Point of Error No. 2.......................................................25-31
                                                                                 ........ ..34-36
              Point of Error No. 3.......................................................34-36
                                       ~


                                 4 ..................................................... ..39-44
              Point of Error No. 4.......................................................39-44
                                 5 ..................................................... ..48-55
              Point of Error No. 5.......................................................48-55

X.            CONCLUSION ........................................................... ..56-57
              CONCLUSION.............................................................56-57


Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                                 Page 3 of 60
XI.            PRAYER .................................................................... .58
               PRAYER......................................................................58
                                                                                         .




XII.                      OF SERVICE.....................................58
              CERTIFICATE OF
              CERTIFICATE    SERVICE ................................... ..58

XIII.         CERTIFICATE OF
              CERTIFICATE    COMPLIANCE .......................... ..58
                          OF COMPLIANCE............................58
XIV.
XIV.          APPENDIX ................................................................. ..60
              APPENDIX...................................................................60




Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                                  Page 4 of 60
                                              OF AUTHORITIES
                                        INDEX OF
                                   III. INDEX    AUTHORITIES
FEDERAL CASES:
FEDERAL CASES:

Giglio v. United States,
       v. United   States, 405 405 U.S.US. 150,150, 154,
                                                       154, 92 S.Ct S. Ct 763,
                                                                             763,
766, 31 L.Ed2d
766,     L.Ed2d 104 (1972)(I972)
          154 ..................................................................................... ..I5, 26,
Giglio at 154.......................................................................................15,       28
                                                                                                          26, 28


United States v.
United        v. Agurs, 427 U.S.
                 Agurs, 427 US. 97,        I12, 96
                                    97, 112,       96 S.   Ct.2329,
                                                        S.Ct.2329,
2401, 49 L.Ed2d
2401,                 (I976) ............................................................. ..I5, 16,
         L.Ed2d 342 (1976)...............................................................15,     16, 17


Weatherford v.
Weatherford v. Bursey,
               Bursey, 429     US. 545,
                        429 U.S.       545, 97 97 S.Ct      83 7,
                                                    S. Ct 837,
51 L.Ed2d 30 (1977)...........................................................................16
   L.Ed2d 30 (197ﬂ ......................................................................... ..16

      v. MaQland,373
Brady v.                US. 83,
         Maryland,373 U.S.      83, 83 S.Ct.        1194,
                                           S. Ct. 1194,
10L.Ed2a'215  (1963) ....................................................................... ..I6
10 L.Ed2d 215 (1963).........................................................................16

United States v.
United        v. Bagley,473 US. 667,
                 Bagley,473 U.S. 667,
I05 S.Ct.3375,
105             87L.Ed2a’481(I985)
    S.Ct.3375, 87  L.Ed2d 481 (1985)................................................16,    17,30
                                      .............................................. ..16, 17, 30

Kyles v. Whitley 514
      v. Whitley,     US. 419,
                  514 U.S.                   S.Ct.1555,
                             419, 115 S.Ct.1555,
I31L.Ed2d 490
131L.Ed2d   490 (1995)........................................................................17,
                (1995) ...................................................................... ..1 7, 18, 26
                                                                                                     I8, 26


Higgs, 713 F.2d
Higgs, 713         42 ....................................................................... ..26
           F.2d at 42.........................................................................26

Alcortav v.  Texas, 355 U.S.
         v. Texas,          US. 28, 28, 31,
                                          31, 78 78 S.
                                                     S. Ct.     103, 105,
                                                          Ct. 103,      I05,
2L.Ed2d 9 (1957)................................................................................28
2L.Ed2d     (1957) .............................................................................. ..28

United States v.
United            Gengler, 574,
              v. Gengler,         574, F.     2d. 730,
                                          F. 2d.     730, 735735
(3d Cir. 1978) .................................................................................. ..28
    Cir. 1978).....................................................................................28


South Dakota
      Dakota v.  Ogggerman, 428
             v. Oppperman,                US. 364,
                                   428 U.S.       364, 96 96SS Ct.      3092,
                                                                  Ct. 3092,
49L.E.2dI000
49              (I976) ...................................................................... ..40,41,
   L.E.2d 1000 (1976)........................................................................40,       51
                                                                                                   41, 51




Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                                       Page 5 of 60
Cady v.
Cady  v. Dombrowslgy,          US. 433,
                       413, U.S.
         Dombrowsky, 413,              433, 93 S.Ct.          2523,
                                                    S. Ct. 2523,
37L.Ed.2d
37          706 (1973)..........................................................................41
   L.Ed.2d 706  (1973) ........................................................................ ..41

          V. New
Coolidge v.  New Hamgshire,      US. 433,
                 Hampshire, 403 U.S. 433, 461,
                                           461,
91 S.Ct.
   S.Ct. 2022,2035, 29 L.Ed.2d 564
         2022,2035, 29         564 (1971)........................................41
                                   (1971) ...................................... ..41

Brendlin v. California, 551
         v. California,        US. 249,
                        551 U.S.       249, 127I27S.Ct.        2400,
                                                      S.Ct. 2400,
              132 (2007).......................................................................49
168 L.Ed.2d 132   (2007) ..................................................................... ..49

           v. Hodari
California v. Hodari, 499   US. 621,111,
                      499 U.S.      621,111, S.Ct  S. Ct 1547,
                                                           1547,
113 L.Ed.2d 690 (1991).......................................................................49
                 (1991) ..................................................................... ..49

New York v.
New York v. Belton       US. 454,
                    452, U.S.
            Belton, 452,                    2860,
                              454, 101 S.Ct 2860,
69 L.Ed.     (1981) ........................................................................... ..50
   L.Ed. 728 (1981).............................................................................50

Arizona v. Gant, 556
        v. Gant,     556 U.S.
                            US. 332,332, 129 S.Ct.          1710,
                                                   S.Ct. 1710,
Ld.2d       47 A.L.R.
      485, 47
Ld.2d 485,                 Fea'.2a’
                A.L.R. Fed.2d 657       657 (2009)
Gant at 1723........................................................................................50
Gant    I 723 ...................................................................................... ..50


STATE CASES:
STATE CASES:

Thomas v.
Thomas   v. State, 841 S.W. 2.d
            State, 841          SW
                              2d 399,
                                    399, 404 404 (Texas Crim.   Crim. App.App. 1992)
    841, S.W2dat
ana'84I,
and       S.W.2d at 403........................................................................26,    30
                     403 ...................................................................... ..26, 30

Garza v. v. State, 137 S.
             State 137     W301 878,
                        S. W.3d                   (Tex./lpp.-Houston
                                   878, 882 (Tex.App.-Houston
   st
[1‘”
[1 Dist.
      Dist.]] 2004, pet. Ref
              2004, pet. Ref’d)..................................................................40
                             ’d) ................................................................ ..40


Collins v.           S. W.2d 890
           State 630 S.W.2d
        v. State,            890 (Tex.App. I982 pet.
                                 (Tex.App. 1982      ref’d) ............ ..41, 54
                                                pet. ref’d)..............41,

Sandal v.
       v. State,
          State, 253 S. W261 283 (Tex.Cr.App.1952)..........................41,
                 253 S.W.2d      (Tex. Cr.App.1952) ........................ ..4I, 54


Broughton
Broughton v.
          v. State,
             State, 643 S. W.2d 147
                        S. W.2d 147 (Tex.App. 1982 no.
                                    (Tex.App. 1982     pet.)..........41,
                                                   no. pet.) ........ ..4I, 54




Gauldin v. State 649 S.
        v. State,       W.2d 411 (Tex.Cr.App.
                     S. W.2d                  1984) .................... ..42, 54
                                 (Tex.Cr.App. 1984)......................42,




Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                                        Page 6 of 60
Pearson v.
        v. State,
           State, 649 S. W.2d 786
                      S. W.2d 786
(Tex.Cr.App.   1983, pet.
(Tex. Cr./lpp. 1983,      ref’d) ........................................................... ..42, 54
                     pet. ref’d).............................................................42,

Evers v.           S.W.2d 46
         State 576 S.W.2d
      v. State,           46 (Tex.Cr.App. 1978)...........................42,
                                          1978) ......................... ..42, 52,
                                                                                52, 54,
                                                                                    54, 55


Benevides v.        600 S.
             State 600
          v. State,     S. W.2d  809 (Tex.Cr.App.
                           W.2a’ 809 (Tex. Cr.App. 1980)..................42,
                                                   I980) ................ ..42, 52,
                                                                                52, 54


Christian v.        592 S.
             State 592
          v. State,        W.2d 359
                        S. W.2d 359 (Tex.Cr.App.
                                    (Tex. Cr.App. 1980)...................42,
                                                  I980) ................. ..42, 52

Daniels v.            S. W.2d 809
            State 600 S.W.2d
        12. State,            809 (Tex.Cr.App.
                                  (Tex. Cr.App. 1980).......................42
                                                I980) ..................... ..42

         Eugene Redmond
Jonathan Eugene   Redmond v.                         05-09-01461-CR)
                               v. State, (No. 05-09-01461-CR)

                    2011) .................................................................. ..43
(Tex.App. -— Dallas 2011)....................................................................43

Maybergg
Mayberry v.         830 S.
             State 830
          v. State,        W.2d 176,
                        S. W.2d  176, 180I80
(Tex.App. - Dallas 1992,
                    1992, pet.
(Tex.App. —                    ref ’d) ................................................. ..43
                          pet. ref’d)...................................................43

Tex.R.APP.Ann 81(b)(2). Pamp.
Tex.R.APP.Ann           Pamp. 1989..............................................44
                              1989 ............................................ ..44

Gauldin v. State 683 S.
        v. State,       W.2d at 415.................................................44
                     S. W.2d    415 ............................................... ..44

Fenton v.
       v. State, 785 S.
          State, 785    W.2a’ 443 (Tex.App.-
                     S. W.2d      (Tex.App.— Austin 1990)...............44,
                                                    1990) ............. ..44, 52

Russell v.        7I7S.
           State 717
        v. State,        W261 7,
                      S. W.2d 7, 9,             I986) .................... ..49
                                 9, (Tex.Cr.App 1986)......................49


Telshow v.
        V. State, 964 S.
           State 964      W.2a’ 303,
                      S. W.2d        307
                                303, 307
(Tex.App.- Houston  [I4"’
                        th
           Houston [14 Dist.] 1998[998 no pet.)
                                          pet.)..................................49
                                                ................................ ..49



White v.
White           871 S.
         State 871
      V. State,         W.2d 833,
                    S. W.2d        836-37
                              833, 836-37
(Tex.App. - Houston
                           th
(Tex.App.  -           [14"’ Dist.] 1994,
             Houston [14            1994, no pet.)
                                             pet.)...............................49
                                                   ............................. ..49



Higlzwarden
Highwarden v. v. State,
                 State, 864   S. W.2d 479,
                        864 S.W.2d    479, 481 && n.
                                                   n.
(Tex.App. -- Houston   [I4’h Dist.] 1993)        dism ’s as
                           th
(Tex.App.    Houston [14             I993) pet.
                                            pet. dism’s
irnprovidently granted,
improvidently   granted, 871       W.2d 726 (Tex.Cr.App.
                          871 S. W.2d        (Tex.Cr.App. 1994).........49
                                                            1994) ....... ..49




Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                                     Page 7 of 60
Nottingham v.
           v. State, 908 S.
              State, 908    W.2d 585
                         S. W.2d
                  1995) ....................................................................... ..49
(Tex.App.- Austin 1995).........................................................................49

Medford
Medford v.
        v. State,
           State, 13 S. W.2d 769
                     S. W.2d 769 (Tex.Cr.App.  2000) ........................ ..49
                                 (Tex. Cr.App. 2000)..........................49


Granados v.
Granados v. State     S. W.3d 217
            State, 85 S.W.3d  217 (Tex.Cr.App. 2002) ...................... ..50
                                  (TeX.Cr.App. 2002)........................50

Gill v. State 625 S.
     v. State,       W.2d 307,
                  S. W.2d      319 (Tex.Cr.App.
                          307, 319 (Tex. Cr.App. 1980)........................51
                                                 1980) ...................... ..5I

Delgado
Delgado v.
        v. State, 718 S.
           State, 718    W.2d 718,
                      S. W.2d      721 (Tex.Cr.App.
                              718, 721              1986) .............. ..5I
                                       (Tex.Cr.App. 1986)................51

Backer
Backer v.        656 S.
          State 656
       v. State,        W.2d 463 (Tex.Cr.App.
                     S. W.2d     (Tex. Cr.App. 1983)...........................52
                                               1983) ......................... ..52

Mayhood
Mayhood v.
        v. State, 699 S.
           State, 699    W.2d 873,
                      S. W.2d      874
                              873, 874
(Tex.App. 1984 pet.
(Tex.App. 1984 pet. Ref’d)
                    Ref’d)......................................................................54
                           .................................................................... ..54



State v.
      V. Giles, 867 S.
         Giles 867      W.2d 105,
                    S. W.2d          I08
                              105, 108
(Tex.App. - El Paso,
(Tex.App.  -    Paso, pet,  ref’d) ............................................................. ..55
                       pet, ref’d)...............................................................55

Statutes

1 4”’ Amendment         United States Constitution...............................13,   26
    th
14               of the United
       Amendment of                   Constitution ............................. ..13, 26

44"’Amendmentofthe
  th
                      UnitedStates
     Amendment of the United        Constitution ............................... ..13, 36,
                             States Constitution.................................13,       39,40, 41
                                                                                       36, 39,40,


Texas Transportation Code            Code 544.010 Subparagraph
                                                             Subparagraph ((c)      c)
............................................................................13,
.......................................................................... ..13, 19,
                                                                                 19, 20, 25,26, 32,33,
                                                                                     20, 25,26, 32,33, 34,
                                                                                                       34, 35


                                     9 ....................... ..13, 19,
Texas Constitution Article 1 Section 9.........................13,   19, 25,
                                                                         25, 36,
                                                                             36, 39,
                                                                                 39, 48,
                                                                                     48, 55,56


Code of
Code    Criminal Procedure Article 39.14..........................................17
     ofCriminal                    39.14 ........................................ ..17

Code of
Code    Criminal Procedure Article 2.01...........................................17
     ofCriminal                    2.01 ......................................... ..17

            ofEvidence
Texas Rules of          803 (6).........................................................18
               Evidence 803 (6) ....................................................... ..18




Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                                     Page 8 of 60
            0fEvidence
Texas Rules of Evidence 902 (10).........................................................18
                            (1 0) ....................................................... ..I8


Texas Rules of Civil Procedure
            0fCivil            21a ................................................... ..18
                     Procedure 21a.....................................................18

Leg.  H
Leg. H. Stat.
        Stat. 1995 74'”
                  74  th
                         Leg.
                         Leg. Sess.
                               Sess. Chapter 165,      165,
effective September 1,   I995 ................................................................ ..20, 35
                     I 1995..................................................................20,
                             ,




      Code of
Texas Code    Criminal Procedure 38.23 ((a)
           0fCriminaZ                    a )...................................38,
                                            ................................. ..38, 39,
                                                                                    39, 48




Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                                    Page 9 of 60
                                  Case No. 12-13-00298
                                  Case                 CR
                                           12-13-00298 CR

                                  THE
                               IN THE
                               IN
                          COURT OF
                          COURT OF APPEALS
                                   APPEALS
                  TWELFTH SUPREME
                  TWELFTH SUPREME JUDICIAL
                                   JUDICIAL DISTRICT
                                            DISTRICT
                                   TEXAS
                            TYLER, TEXAS
                            TYLER,

******************************************************************
******************************************************************

                           ROBERT EUGENE
                           ROBERT EUGENE PRITCHETT
                                           PRITCHETT
                                   Appellant

                                                     V.

                                  THE STATE
                                  THE       OF TEXAS
                                      STATE OF   TEXAS
                                        Appellee

******************************************************************
******************************************************************

                     On Appeal
                     On        From the 273
                        Appeal From     273"‘
                                            rd
                                               Judicial District

                     ~.w:s:~.w.-*9:9:4:9:*9:9:9:9:9:*9:*:':9:*9:9:*9:9:*9:9::':9:9::':9:9:
                     ************************************

TO THE
TO     HONORABLE JUDGES
   THE HONORABLE JUDGES OF
                        OF SAID COURT:
                           SAID COURT:

       Comes now Robert Eugene
       Comes now        Eugene Pritchett, Defendant in a proceeding in the 273
                                                                           273'“
                                                                               rd



                        of San Augustine County, Texas and desiring to prosecute an
Judicial District Court of

appeal from his conviction in that proceeding, respectfully submits this brief in appeal

of                                                      Eugene Pritchett will be by
of same. For clarity, reference in this brief to Robert Eugene                   by

“Appellant” and reference to the State of Texas will be by
“Appellant”                                                “Appellee” unless the
                                                        by “Appellee”

context or consideration of style dictate otherwise.

Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                         of 60
                                                   10 of
                                              Page 10
                              STATEMENT OF
                          IV. STATEMENT    THE CASE
                                        OF THE CASE
       On the 44”‘th day of August , 2014
       On                         ,  2014 a Motion To Suppress (Evidence Obtained
                                            Motion To

From Illegal Detention and Illegal Impoundment
From                               Impoundment and Inventory) was
                                                              was filed
                                                                  ﬁled with the

Court by
      by Appellant’s attorney. See Appendix “A”.
                                   Appendix “A”.

       On the 44‘“th day of August, 2014, before presiding judge Hon. Charles Mitchell
       On

                 273“rd District Court of San Augustine County, Texas, San Augustine,
presiding in the 273

                                                               commenced on the
              was selected and sworn and empaneled and a trial commenced
Texas, a jury was

       of the felony prosecutor’
merits of                                                             Eugene Pritchett,
                     prosecutor’ss case against the Defendant, Robert Eugene

who and being accused of committing two
who                                 two felony offenses of
                                                        of and pertaining to

                                                 Zone and Tampering
Possession of a Controlled Substance in a School Zone     Tampering with

Evidence.
Evidence.

       On the 55”‘th day of August, 2014, the case went
       On                                          went to jury deliberation and the jury

                                which and finding
eventually returned verdicts in which     ﬁnding Defendant guilty of
                                                                  of Possession

of                            ﬁnding Defendant Not
of a Controlled Substance and finding                        Tampering with
                                                          of Tampering
                                               Not Guilty of

Evidence.
Evidence.

    On September 10,
    On           10, 2014, the Defendant and counsel appeared at the punishment
                                                                     punishment

phase of the trial and the court assessed punishment consisting of Defendant being

                                                ﬁve years and Defendant ordered
          community supervision for a period of five
placed on community



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                 of 60
                                           11 of
                                      Page 11
to pay               amount of
   pay a fine in the amount of $3,000.00 and Defendant ordered to pay
                                                                  pay a restitution

amount of $140.00.
amount                          “B” “Judgement
                       Appendix “B”
          $140.00. See Appendix     “Judgement of            By Court”.
                                               of Conviction By

                                 of the punishment hearing counsel for Defendant
Immediately after the conclusion of

ﬁled the Trial Court’s Certification of Defendant’s Right of Appeal.
filed                                                                    Appendix
                                                             Appeal. See Appendix

“C”.
“C”.

    On October 7, 2014, counsel for Defendant filed Defendant’s Written Notice
    On

of Appeal.
of Appeal. See Appendix “D”. This case is proper before this Honorable Court.
               Appendix “D”.




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                              of 60
                                        12 of
                                   Page 12
                               PRESENTED FOR
                        ISSUES PRESENTED
                     V. ISSUES               REVIEW
                                         FOR REVIEW
POINT OF
POINT    ERROR 1.
      OF ERROR
       The State has a constitutional duty
       The                                 under the due
                                      dutv under     due process clause or the
                   Amendment to disclose any
       Fourteenth Amendment              anv material evidence that is favorable
       to defense.

POINT OF
POINT    ERROR 2.
      OF ERROR
                 was denied due
       Appellant was          due process of law when the State agents, The
                                             law when                   The City
                                                                             Citv
                                         Department destroyed and
          San Augustine, Texas, Police Department
       of San                                                    and or failed to
                          Exculpatorv evidence of a video/
       preserve Material Exculpatory                Video/ audio recording of the
                                             Impoundment and
       Alleged Traffic Violation, Detention, Impoundment    and Inventory
                                                                Inventorv search
                             form the basis of the conviction.
       of the Appellant that form

POINT OF
POINT    ERROR 3.
      OF ERROR
       The trial court abused
       The             abused its discretion sustaining prosecution’s
                                                        prosecution’s objection
                                                                      obiection to
                motion to read
       defense motion       read into the record the relevant section of the
                        Code for the jury’s
       Transportation Code                  understanding as it applies to motorist
                                     iurv’s understanding
       stopping at intersections.

POINT OF
POINT    ERROR 4.
      OF ERROR
                                          were violated under
       Appellant’s Constitutional Rights were            under the Fourth
                                                                       Fourth
       Amendment of the United States Constitution and
       Amendment                                   and Article I,
                                                               1, Section 9 of
                               when the reasonable alternatives that were
           Texas Constitution when
       the Texas                                                         were
                    impoundment were
       available to impoundment were not implemented.
                                         implemented.

POINT OF
POINT    ERROR 5.
      OF ERROR
       The inventory
       The                                          was an
           inventorv search of Appellant’s vehicle was  an illegal unconstitutional
                                            Violation of Article 1, Section 9 of the
       investigative search for evidence in violation
       Texas Constitution.
       Texas


Appel1ant’s Brief
Appellant’s
Robeﬁ Eugene
Robert Eugene Pritchett                     of 60
                                         13 of
                                    Page 13
                          ARGUMENT AND
                      VI. ARGUMENT AND AUTHORITIES
                                       AUTHORITIES
POINT OF
POINT    ERROR NO.
      OF ERROR NO. 1

The State has a constitutional duty under
The                                 under the due
                                               due process clause or the
           Amendment to disclose any
Fourteenth Amendment             any material evidence that is favorable to
defense.

                                STATEMENT OF
                           VII. STATEMENT OF FACTS
                                             FACTS
       The foregoing statements of
       The                      of facts are incorporated herein by
                                                                 by references for all

purposes.                                                   subpoena.
purposes. Facts regarding non-response to defense counsel’s subpoena.

       On July 8, 2014, defense counsel submitted a subpoena to the San Augustine
       On

                                                      copy of the established written
                  speciﬁcally requesting an authentic copy
Police Department specifically

                                           impoundment procedure and production
policy governing the department’s rules of impoundment

of                                      ﬁlm of
of authentic copies of the audio/visual film of the officer’s
                                                    off1cer’s pursuit prior to and during


                       (RR: Vol. 3, P. 75)
Appellant’s detention. (RR:

                                SUMMARY OF
                          VIII. SUMMARY    ARGUMENT
                                        OF ARGUMENT
       Under established Texas law, the failure to turn over material, exculpatory
       Under

evidence is a violation of due process, regardless of whether the State acted in bad

                                 who arrested Appellant, testified that he thought the
                         ofﬁcer who
faith. In this case, the officer

police department had an established policy governing impoundment; but he           was
                                                                                    was

                                           him in court. The
                                 copy with him
unsure because he did not have a copy                    The officer
                                                             ofﬁcer further testified



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                          14 of
                                     Page 14
                                                 was activated and recording
to having a video camera in his patrol unit that was

Appellant’s vehicle as the officer
                           ofﬁcer pursued/followed the Appellant.           The officer
                                                                            The ofﬁcer

testified that he stopped Appellant for not stopping at a designated point at a stop sign

                            ofﬁcer testified
at an intersection, and the officer testiﬁed that Appellant had also improperly stopped

in the middle of the intersection.
                     intersection. Appellant argued in defense of officer’s reason for


the stop based upon
               upon the traffic code, and Appellant argued in defense of the video the

                               was lost pursuant to a computer crash. The
officer maintained existed but was                                    The video

                                                was material, exculpatory evidence
          of the following/pursuit of Appellant was
recording of

                               was a violation of Appellant’s due process rights.
and the failure to preserve it was

                                      ARGUMENT
                                  IX. ARGUMENT

       Exculpatory evidence includes material that goes to the heart of the defendant’s

                                    which might well alter the jury’s
guilt or innocense as well as that, which                      jury’s judgement of the
                                                                      judgement of

credibility of a crucial prosecution witness. Giglio v. United States,
                                                     v. United                  150,
                                                               States, 405 U.S. 150,


                          L.Ed2d 104
                       31 L.Ed2d
154, 92 S.Ct 763, 766, 31
154,                             104 (1972). Evidence impeaching the testimony

                                       when the credibility of the witness may
of a government witness is exculpatory when
of                                                                         may be

determinative of criminal defendant’s guilt or innocence. Qglg at 154.
                                               innocence. Giglio  154. If
                                                                       If the


                                           doubt” as to the defendant’s culpability,
exculpatory evidence “creates a reasonable doubt”

                                United States v.
it will be held to be material. United        v. Agurs, 427 U.S. 97, 112,
                                                 Agurs, 427          112, 96 S.Ct.2329,




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                          15 of
                                     Page 15
2401, 49 L.Ed.2d 342 (1976).

                                                                                San
         In this case, defense counsel submitted a subpoena to the custodian of San

                                             thirty-ﬁve days before the trial held on
Augustine Police Department on July 8, 2014, thirty-five

                At trial, Officer
August 4, 2014. At        Ofﬁcer Brazeal testified        was in charge of
                                         testiﬁed that he was           of

                      which included handling subpoenas received at the department.
administrative duties which                                             department.

The officer admitted that he received a subpoena requesting the department’s
The

impoundment policy and other production. The
impoundment                                                                 was told
                                         The officer further stated that he was

by the district attorney’s office not to release information. (RR:
by                                                            (RR: Vol. 3, P. 75, 76, 77,

         1-25, 1-8).
L. 8-25, 1-25,       The district attorney’s rebuttal closing alluded to the code of
               1-8). The                                                          of

                                                                    was not in
criminal procedure regulating discovery claiming defense’s subpoena was

                                                   no consequence.
conformance therewith and therefore, seemingly, of no consequence. (RR: Vol. 3,

   109,110,
P. 109,         11-25,1-13).
        110, L. 11-25, 1-13).

                                                                   Weathertord v.
         There is no general right to discovery in criminal cases. Weatherford v.



        429 U.S. 545, 97 S.Ct 837, 51
Bursey, 429
l3u_11ve_y,                           L.Ed2d 30 (1977). However, the State has a
                                   51 L.Ed2d

                              Due Process Clause of the United States Constitution
constitutional duty under the Due

                         any material evidence that is favorable to the defense for
to disclose to defendant any

trial or a sentencing hearing. Brady v. Magyland
                               Brady v.                                      10
                                        Maryland, 373 U.S.83, 83 S.Ct .1194, 10

                    United States v.
L.Ed.2d 215 (1963); United        v. Agurs, 427 U.S. 97, 96 S.Ct.2329, 49 L.Ed.2d
                                     Agurs, 427



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                          16 of
                                     Page 16
                          v. Bagley
342 (1976); United States v.                       105 S.Ct.3375, 87 L.Ed.2d
                             Bagley, 473 U.S. 667, 105

48l(l985); Kyles v.
481(1985);                                115 S.Ct. 1555,
                    Whitley 514 U.S. 419, 115
                 v. Whitley,                        1555, 131         490 (1995).
                                                          131 L.Ed.2d 490

                                                                              makes
       This standard of materiality applies regardless of whether the defense makes

  speciﬁc request for certain material, a general request for discoverable material, or
a specific

no request for disclosure of favorable evidence. Although the Court’s opinion in

       was a plurality opinion, a majority adopted this approach in Kyles.
Bagley was                                                          Kyles.

Knowledge of
Knowledge of materially favorable evidence in law enforcement files   known to law
                                                              ﬁles or known

            ofﬁcers is imputed to the prosecutor.
enforcement officers                  prosecutor. Therefore, a constitutional

                    when the prosecutor is unaware
violation can occur when                   unaware of evidence in law enforcement

files. Id.
ﬁles. Id.


       The prosecutor insisted at trial that because defense didn’t follow or adhere to
       The

                   Code of Criminal Procedure Article 39.14
discovery pursuant Code                                               speciﬁc article
                                                      39. 14 (through specific


                                  was not entitled to release nor receipt of information
not referenced in court), defense was

requested. (RR: Vol.
requested.                   P. 109, 110,
                          3, P.109,          ll-15,1-13).
                                     110, L. 11-15, 1-13).

       The Code of
       The Code of Criminal Procedure Article 2.01
                                              2.01 refers to the duties of the district

attorney.

                                           of all prosecuting attorneys, including any
       “....[I]t shall be the primary duty of

special prosecutors, not to convict, but to see that justice
                                                     justice is done. They shall not



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                   of 60
                                             17 of
                                        Page 17
                                                                          of the
suppress facts or secrete witnesses capable of establishing the innocence of

accused.”

       Defense’s subpoena included request for certain business records of the police

                                                                  impound policy was
department and request for information particularly pertaining to impound        was

                                                       Tex.R.Evid. 803(6) without a
requested and intended to be introduced at trial under Tex.R.Evid.

sponsoring trial witness through the use of an affidavit as provided for in the

                                                 would have been given to prosecution
Tex.R.Evid.902( 1 0), and notice of introduction would
Tex.R.Evid.902(10),

pursuant to Rule 21a Tex.R.Civ.Pro. At least 14
                     Tex.R.Civ.Pro. At                            commencement of
                                             14 days prior to the commencement

           “Knowledge of materially favorable evidence in law enforcement files
the trial. “Knowledge                                                     ﬁles or

known to law enforcement officers is imputed to the prosecutor.” Kyles,
known                                                            Kyles, Supra.

       Defense counsel’s subpoena sought to legally discover business records

                 may have been pertinent and material to defense; and admit such
information that may

evidence under the Texas Rules of Evidence pursuant to the Texas Rules of Civil

                               The decision to deny defense’s subpoena in behalf of
Procedure in a criminal trial. The

            was a violation of Appellant’s
the accused was                Appe11ant’s due process rights.

POINT OF
POINT    ERROR NO.
      OF ERROR NO. 2

           was denied due
Appellant was          due process of law when the State through
                                      law when                               San
                                                         through its agents, San
                   Department destroyed and
Augustine Police Department
Augustine                                  and or failed to preserve Material
Exculpatorv evidence of a video/ audio recording of the Alleged Traffic
Exculpatory                                                              Trafﬁc
                      Impoundment and
Violation, Detention, Impoundment    and Inventory search of the Appellant that

Appellant’s Brief
       Eugene Pritchett
Robert Eugene                               of 60
                                         18 of
                                    Page 18
form the basis of the conviction.
form

                               STATEMENT OF
                          VII. STATEMENT OF FACTS
                                            FACTS
      The night of
      The                       November 24
                of Thanksgiving November    th
                                         24”‘, , 2011, around 8:52 pm,
                                                                   pm, in the City

of San Augustine, Texas.
of                Texas. Office Sowell testified that his digital video, recorded the

following of the Appellant’s vehicle through a residential neighborhood for over a

half a mile. Officer Sowell alleged the Appellant stopped improperly at the
half

             of Hospital Street and North
intersection of                           Milam Street, that lead to the detention and
                                    North Milam

arrest of the Appellant for failure to display driver licence and subsequent

impoundment and inventory search of Appellant’s vehicle.
impoundment

                            made an objection on the admissibility of the evidence.
       Appellant’s Attorney made

The roadside detention was
The                                                           Code 544.010,
                       was in violation of the Transportation Code 544010,

Subparagraph (( c );
                  ); and it
                         it violated Article 1,           of the Texas Constitution.
                                             1, Section 9 of


                                                                      The Court: The
Therefore, the evidence the State is trying to offer is inadmissible. The        The

          was overruled. (RR: Vol. 2, Page 32, Lines 4-13).
objection was

         The Appellant argues that the arresting Officer had no probable cause or
         The

reasonable suspicion to stop the Appellant. Appellant argues he stopped properly at

                                                   The Appellant stopped properly
the intersection of the alleged traffic violation. The

                                                                Code 544.010 -- Stop
             The Texas Transportation Code, relevant section of Code
according to The



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                               of 60
                                         19 of
                                    Page 19
                                              An operator required to stop by
Signs and Yield Signs -- Subparagraph (( c )) An                           by this

section shall stop before entering a crosswalk on the near side of the intersection.
                                                                       intersection. In


                                                                 marked line. In the
            of a crosswalk, the operator shall stop at a clearly marked
the absence of

        of a stop line, the operator shall stop at the place nearest the intersecting
absence of

roadway where the operator has a view
roadway where                                                on the intersecting
                                 View of approaching traffic on

roadway.” Leg. H. Stat. 1995 74”‘
                        1995 74 th
                                   Leg. Sess. Ch. 165,
                                                  165, effective September 1, 1995.
                                                                           1, 1995.


        Ofﬁcer Sowell’s testimony, Officer
     In Officer                    Ofﬁcer declined to answer important questions

                                                   Ofﬁcer Sowell’s reference to the
vital to the defense, without referring the video. Officer

                                            on cross examination, without the video,
video and his inability to answer questions on

shows the video contained exculpatory evidence which
shows                                                was vital to the defense,
                                               which was

which violated Appellant’s due process and a right to a fair trial.
which

       The foregoing statement of fact are based on
       The                                       on trial court testimony of the San
                                                                                 San

                                    Officers.
Augustine Police Department, Police Officers.

       The State’s Attorney in direct examination of Officer
       The                                           Ofﬁcer Jonathon Sowell.
                                                                     Sowell.

   Do you
Q. Do
Q.        remember what
      you remember                    was wearing that night?
                   what Mr. Pritchett was

              would have to review video. It’s been nearly three years and -- -—
A. No, Sir. I would

Q. All right.

                                         RR: Vol. 2 p.44, L. 17-22
States Attorney: II pass the witness. (( RR:                 17-22 ).
                                                                   ).




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 20 of
         Appel1ant’s Attorney begins cross examination of
         Appellant’s                                      Ofﬁcer Sowell.
                                                       of Officer Sowell. (RR: Vol.

2, P. 45).

Q. Okay. Now,
Q.                                     him on the hunch, did you
                    you were following him
         Now, while you                                      you have a video

going‘?
going?

                   was going.
             Video was
A. Yes, sir, video

      you have a video
Q. So you                   we could see regarding your following him?
                 Video that we                                    him?
O.>@.>




A. No, sir,
       sir, I
            I do not.



                             You didn’t have a video of the following?
Q. So I guess the answer is: You

                 Our computer hard drive crashed at the police department and lost
      was going. Our
A. It was

           (RR: Vol. 2, P. 73, L. 6-17)
    Video. (RR:
the video.

                                                                Appendix No.
         Officer Sowell looking at defense Exhibits 3, 4 and 5. Appendix     “E”.
                                                                         No. “E”.

               would be a line, and that is your designated stop point, the white line.
A. -- -- There would

I’m                my video
I’m unsure without my Video if           was actually present at that night.( RR:
                            if that line was                                  RR: Vol.

           22-24).
2 p.75, L. 22-24 ).

                                           show you.
                       was a video I could show
A. -- -- II wish there was

       we don’t have a video,
Q. But we                        we?
                       Video, do we?

   And I’m
A. And I’m sorry about that. But
                             But -- -- ((RR:
                                         RR: Vol. 2 p.77, L. 3-10 ).
                                                                  ).




Q. At
Q.             when he said he didn’t have his driver’s license -- --
   At the time when



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                          21 of
                                     Page 21
   l’m not sure about the time frame on
A. I’m                                           would have to have the video or it
                                     on that. II would                           it



would                      my report. But
would have to be stated in my                      RR: Vol. 2 p.80, L. 11-15
                                      But -- -- (( RR:                 11-15 ).
                                                                             ).



       we can’t show
Q. But we
Q.                   members of the jury where
                show members             where you
                                               you claim he stopped, can you?

A. Not             Video, no, sir. ((RR:
   Not without the video,                                13-15 ).
                                     RR: Vol. 2 p.82, L. 13-15 ).



   At that point in time, you
Q. At                             him if you
                          you ask him    you can search his vehicle. It’s not in your

report.
report.   l’m asking you
          I’m        you -- --

   Then II can’t -- -- without a video
A. Then                                l’m not going to testify to that question. Because
                                 Video I’m

l’m unsure, sir. Like you
I’m                                                                    RR: Vol. 2 p.84,
                      you said, that’s been nearly three years ago. (( RR:

   15-20 ).
L. 15-20 ).



       The audio portion contained in the video, you
       The                                       you could have heard Officer Sowell

asking Appellant to search his vehicle.

                                  where you
Q. But being the general vicinity where
Q.                                      you pulled the vehicle
                                                       Vehicle over?

A. Yes, sir -- --

Q. -- -- it was on
         it was on video -- --

                                                where he was
                                    you exactly where
A. If I had a video, II could point you                                  RR: Vol. 2
                                                         was stopped. (( RR:

                          1-5).
p.90, L. 25 and p. 91, L. 1-5 ).

   I’m unsure. It was
A. I’m            was stopped. But l’m unsure that it was
                               But I’m                was on
                                                          on a curve or in the road.

                 would not know.
Without video II would              RR: Vol. 2 p.91, L. 16-18
                           know. (( RR:                 16-18 )) . .




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 22 of
       The video would
       The                     show that the Appellant’s car was
                 would clearly show                          was properly parked

                                                                         would also
                                                               The video would
along this portion of Hospital Street, the place of detention. The

        show that this portion of Hospital Street is straight.
clearly show

       States Attorney redirects examination of Officer Sowell.

                 comment about the video crashed the video not being available?
   Been a lot of comment
Q. Been

A. Yes. Sir.

   The video not being available, being destroyed, being lost, being cyberspace,
Q. The

being wherever it                                                   away from
               it goes then they crash, that does not take anything away from the

                     what you
truth or veracity of what you put in your report?

A. No, Sir.

       IIhave
         have no further questions. `( RR: Vol. 2 p.l
                                    ‘( RR:        p.112,
                                                      12, L. 25- p. 113,    1-8 ))..
                                                                    ll3, L. 1-8

       Appellant’s Attorney begins re-cross examination of Officer Sowell.

                        where it
Q. There is no video of where it is alleged he parked wrongfully in an intersection.



True or not true?
            true‘?


                            (RR: Vol. 2, P. 114,
A. True, there is no video. (RR:            114, L. 7-9)

       The State called Officer James Blackwell as there next witness.
       The

                                                     ofOff1cer
       Appellant’s Attorney begins cross examination of Officer Blackwell on the

video issues.



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                 of 60
                                      Page 23 of
                 We have here is so-called crime scene, and it’s not normal to take
            what we
Q. Okay. So what

pictures?

                         would be a video from the patrol car recording the entire
A. Well, there generally would

scene, documenting everything real time. (RR: Vol. 3, P. 43, L. 9-13)

         Do you have any idea whether Officer Sowell logged the videotape on
Q. Okay. Do                                                               on his

patrol car into evidence?


A. No, sir,         I was
       sir, because I was on an antique system. II was       VHS, so II had to
                                                   was using VHS,

manually take the tape out and submit it                  was digital, and I have no
                                      it as evidence. His was



     what he did with it.
idea what                                                         1-3)
                      it. (RR: Vol. 3, P. 53, L. 23-25, P. 54, L. 1-3)




       The State’s Attorney then calls his next Witness, Sargent Shannon
       The                                                       Shannon Brazeal.

                           no question concerning the destroyed video.
                       had no
       States Attorney had

       Appellant’s Attorney begins cross examination of Sargent Braziel.

         Back in 2011
Q. Okay. Back    2011 did y’all use videotape or digital?

   We had a mixture of both. We
A. We                        We had one vehicle that ran -- -- still had the old system
         VHS tape. Everything else was
     had VHS
that had                           was saved digitally to a card.

         Do you
Q. Okay. Do     know What
            you know                  Ofﬁcer Sowell’s video?
                     what happened to Officer

   We had a computer crash, unrecoverable.
A. We                                      We tried to recover what
                            unrecoverable. We                       we could not
                                                               what we

                        (RR: Vol. 3, P. 74, L. 13-22)
get that back that far. (RR:                   13-22)



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 24 of
                                SUMMARY OF
                          VIII. SUMMARY    ARGUMENT
                                        OF ARGUMENT
         Under the U.S. Constitution, a criminal defendant will have a meaningful
         Under

                                           Consequentially, the destruction or failure
opportunity to present a complete defense. Consequentially,

                                                of due process regardless of whether
to preserve exculpatory evidence is a violation of

or not it
       it is done in bad        The State never developed or proved that the San
                     bad faith. The

Augustine Police Department even has a written Standard Policy to preserve a video.

The totality of
The          of the circumstances in this case establish bad faith on behalf of the San

                                                                             which
Augustine Police Department to either destroy or fail to preserve the video, which

                                                   The Video/Audio recording of the
                                     self-defense. The
could establish Appellant’s right to self-defense.

        trafﬁc stop, Detention and the Inventory Search contained exculpatory
Alleged traffic

evidence and the failure to preserve it was done in bad
                                     it was         bad faith, violating Appellant’s

due process right.

                                     ARGUMENT
                                 IX. ARGUMENT

                            made an objection on the admissibility of
       Appellant’s Attorney made                                   of the evidence:

       The roadside detention was
       The                                                                 Code
                              was in violation of the Texas Transportation Code

544.010, Subparagraph (( c );
                           ); and it
                                  it violated Article 1,           of the Texas
                                                      1, Section 9 of



Constitution. Therefore, that evidence trying to offer is inadmissible.
Constitution.                                                           (RR Vol. 2, P.
                                                          inadmissible. (RR

32, L. 5-8)



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 25 of
Court: Objection overruled.

       The Appellant argues that he stopped properly at the intersection of the alleged
       The

                   The Appellant stopped properly according to Section 544.010
        violation. The
traffic violation.

                     of the Texas Transportation Code.
subparagraph (( c )) of

                                                                     of the defendant’s
       Exculpatory evidence includes material that goes to the heart of

                                    which might well alter the jury’s judgement
guilt or innocence as well as that, which                             judgement of the

            of a crucial protection witness. Giglio v.
credibility of                                                                 150, 154,
                                                    v. United States, 405 U.S. 150, 154,

                             104 (1972) Higgs, 713 F.2d at 42.
                  31 L.Ed.2d 104
92 S.Ct. 763,766, 31

                                                Amendment is violated when
           Due Process Clause of the Fourteenth Amendment
       The Due
       The                                                            when a

                                                                       which creates a
prosecutor fails to disclose evidence that is favorable to the accused which

            sufﬁcient to undermine confidence in the
probability sufficient                                   outcome of the proceedings.
                                                         outcome        proceedings.

           Thomas V.
See, e.g., Thomas               SW2d 399, 404
                            841 S.W.2d
                  V. State, 841           404 (Tex. Crim. App. 1992).
                                                               1992).

       The                                                               member of
       The duty to disclose extends to evidence in the possession of any member of

                 team”. See , e.g. Kyles V.
the “prosecution team”.        ,
                                         V. Whitley,                     115 S. Ct.
                                            Whitley, 514 U. S. 419, 437, 115


1555, 1567,
1555, 1567, 131        2d 490
            131 L. Ed. 2d 490 (1995). (“the individual prosecutor has a duty to learn

                          known to the others acting on
of any favorable evidence known
of                                                   on the government’s behalf in

the case, including the police”).
                        police”).

       The Appellant’s Attorney received a letter via fax Dated July 31, 2014, four
       The



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 26 of
                                    The letter stated, In preparing the above cases for
                      of the trial. The
days before the start of

this trial it has come    my attention that there was
                  come to my                                  made on
                                                  was a video made on the night of
                                                                                of the

      My office has never received this video and in following up with the police
stop. My

                                         was stored on a computer at the police
department have found out that the video was

                                                     no longer available.
department and the computer crashed and the video is no

                about the video.
Trial testimony about

       On August
       On August 4, 2014, during trial, the arresting Officer
                                                      Ofﬁcer Sowell testified on

prosecution direct examination.    No, sir. I would                       Then on
                                              would have to review video. Then on

cross examination it was developed that the arresting Officer Sowell had a video
                  it was



recording of the incident, starting from the following of Appellant’s vehicle thru the

                                     impound and inventory search. Then, seven more
        trafﬁc violation, detection, impound
alleged traffic                                                                more

                   examination, the arresting Officer’s answers were, “I
questions on cross examination,                                          am unsure
                                                                      “I am


        my video. II wish there was
without my                                      would have to have the video. Not
                                was a video. II would                         Not

                             Then I can’t without a video. If
with out the video, No, sir. Then                          If I had a video, I could.


With out a video II would
With                          know.”
                    would not know.”

                                                                       know what
       During cross examination of Office Blackwell stated, he did not know what

                                   He also stated on cross examination,
Officer Sowell did with the video. He                      examination, Well, there

          would be a video from the Patrol unit car recording the entire scene,
generally would



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 27 of
documenting everything.

       The           who is employed by
       The Appellant who                                      San Augustine,
                                     by a defense Attorney in San

                                                                   “Bad Faith”. The
argues that the State and San Augustine Police Department acted in “Bad         The

                                                                         downloaded
prosecutor stated digital’s don’t get logged into evidence. It just gets downloaded

         mainframe. Prosecutor stated, But, you
onto the mainframe.                         you know, things happen. Computers
                                                             happen. Computers

crash. II tried a case where the whole dadgum case file
                                 whole dadgum           was lost by
                                                   ﬁle was       by the police

department. (RR: Vol. 3, P. 111,
department.                 111, L. 5-13)

                                      knows that computers crash and case files
       Appellant argues, if the state knows                               ﬁles have

been lost by
          by the Police Department and video is documenting everything real time.

Failure to preserve the video violated Appellant’s due process and right to a fair trial.




~
       A prosecutor has a duty not knowingly to proffer perjured testimony and to
       A

                                may become
                       which he may
correct any perjury of which        become aware during trial. See e.g.,
                                                                   eg., Alcortav

v. Texas 355 U. S. 28, 31, 78 S. Ct. 103,
v. Texas,                            103,105,  2L.Ed2d 9 (1957).
                                          105, 2L.Ed2d

      Evidence impeaching the testimony of a government witness is exculpatory

when                                maybe determinative of
when the credibility of the witness maybe               of a criminal defendant’s

guilt or innocence. Giglio,    U.S at 154,
                    Qiglg, 405 U.S                          United States v.
                                      154, 92 S.Ct. at 766; United        v. Gengler,



574 F. 2d.730,735 (3d Cir.1978).
574                   Cir.l978).

       In prosecutor direct examination of Officer Blackwell the prosecutor handed



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 28 of
                                own police report. The
                         of his own
                    copy of
Officer Blackwell a copy                                                  Some of
                                                   The prosecutor states, Some

                 my highlighting; but other than that it’s a good
the pink, that’s my                                          good copy. (RR:
                                                                        (RR: Vol. 3, P.

10,
10, L. 1-2).    At that time II think you
       1-2). Q. At                    you testified
                                          testiﬁed that y’all began searching the vehicle

first as an inventory search; is that correct?

                        of that, I just
A. Actually, before any of         just stood there in the open door of the vehicle and

noticed the white streaks on the door panel.

Q: In Plain view?
Q:

A. Right, in plain view.

                                        show’s that he knowingly and willfully, with
       Ofﬁcer Blackwell’s police report show’s
       Officer

deceitful malicious intent, along with the prosecution mislead the jury
                                                                   jury on the

                        by Officer Blackwell’s testimony, he states he found the
sequence and the order, by

                                                              view doctrine.
alleged evidence in the car door pocket, to justify the plain view

                    Report
Officer Blackwell’s Report

       Officer Sowell placed Pritchett in custody on the charge “Fail to present Driver

                    him in the rear seat of his patrol vehicle. Officer Blackwell’s
         and placed him
License” and

report states,   II looked into the open door of the vehicle and inside the door pocket,

                   amount of
I observed a small amount of white substance. II touched the small fragments and

                                         know this to be consistent with crack
                    was firm and waxy. I know
noted the substance was



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                  of 60
                                       Page 29 of
                                           my vehicle, and tested the fragments of the
                        ﬁeld test kit from my
cocaine. I1 retrieved a field

substance in the door pocket. The substance tested positive for cocaine.
                      pocket. The                               cocaine. I advised

                                                was going to be charged with
Ofﬁcer Sowell, and II advised Pritchett that he was
Officer

                                                                                     of
           of a controlled substance in a drug free zone. II collected the remaining of
Possession of

the fragments of cocaine from the door pocket with officer Sowell watching, and

       them in an evidence bag, and immediate handed
placed them                                   handed the bag to Officer
                                                                Ofﬁcer Sowell.

      was a number
There was                                                       And II tested several
            number of fragments in the area of the door pocket. And

            smears on the door panel which
small white smears                   which gave positive indication of the presence

of cocaine.
of                                     was attempting to destroy the rock of crack
   cocaine. It appeared that Pritchett was

cocaine to prevent it                       by officers.
                   it from being discovered by ofﬁcers. II advised Pritchett of his

Miranda                       me that he wished to speak to an attorney.
Miranda warnings, and he told me                               attorney.


       The Appellant argues that the video/audio contains “Favorable evidence”
       The

includes both ““ exculpatory ““ and “impeachment
                                    “impeachment evidence”. United States V.
                                                                          V. Bagley,


                 105 S. Ct. At
473 U.S. at 676, 105                 Thomas v.
                            At 3380; Thomas                    2d at 403. Officer
                                                      841 S.W. 2d
                                            v. State, 841



Sowell’s wilfulness, on eight questions on cross examination, declined to answer the

questions without seeing his video. Officer Blackwell’s testimony was
                                                                  was in direct

                 own police report.
conﬂict with his own
conflict

       Moreover, the testimony from the arresting Officer Sowell and the back-up



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                 of 60
                                      Page 30 of
Officer Blackwell was                                       own report’s of the
                                                   ofﬁcers own
                  was inconsistent with the police officers

                     would have been impeached by
               which would
alleged events which                                                   was
                                               by the video. Appellant was

                        by the absence of the video.
signiﬁcantly prejudiced by
significantly

       The                                 itself was
       The San Augustine Police Department itself               of maintaining and
                                                  was in charge of

preserving the video and it was their failure to do so that denied Appellant a complete
                         it was



               on the totality of the circumstances outlined in the above portion, the
defense. Based on

                                                                      was done in
failure of the San Augustine Police Department to preserve this video was

bad                      was a violation of Appellant’s
bad faith and therefore, was                Appel1ant’s due process right.

                     shown that the state through its agent the San Augustine Police
       Appellant has shown

Department, did act in bad
                       bad faith and had a reason or motive not to preserve the

exculpatory evidence in the video of the incident that would show the police officers
                                                       would show            ofﬁcers

                            what actually took place during the following, alleged
misconduct and the truth of what

                                                      As Officer Blackwell testified
traffic violation and the detention of the Appellant. As

                 “documenting everything real time”.
about the video, “documenting                                               shown
                                              time”. Further, Appellant has shown


                                                   would have been very useful in
that the video contained exculpatory evidence that would

the Appellant’s right to self-defense, to the jury.
                                              jury.

                  was denied his due process right to adequately present a defense
        Appellant was

    was constitutionally harmed.
and was



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                          31 of
                                     Page 31
POINT OF
POINT    ERROR 3.
      OF ERROR
      The trial court abused
      The             abused its discretion sustaining prosecution’s objection
                                                                      obiection to
        motion to read into the record the relevant section of the Transportation
defense motion
Code for the jury’s
Code                   understanding as it applies to motorists stopping at
                iurv’s understanding
intersections.

                               STATEMENT OF
                          VII. STATEMENT OF FACTS
                                            FACTS
       The foregoing statements of the facts are incorporated herein by
       The                                                           by references for

all purposes.                                Code 544.010 (( c )) evidence:
    purposes. Facts regarding Transportation Code                 evidence:

       A trial to a jury commenced
       A                 commenced on August
                                      August 4, 2014, during the course of
                                                                        of defense

                                                  who conducted Appellant’s
                            of the police officer who
counsel’s cross examination of

detention, defense counsel for the Appellant motioned the court to allow defense

                                         “Texas Criminal and Traffic
counsel to read into the record from the “Texas                      Law Manual”
                                                             Trafﬁc Law  Manual”

               Code 544.010 (( c )) for purpose to advocate therefrom during cross
Transportation Code

                 would have fairly informed the jury and the court the controlling law
examination that would

of the transportation code as it
of                                                                          who stopped
                              it applies to motorist and the police officer who



                             “One moment, Your
                   Dudinsky: “One
the Appellant. Mr. Dudinsky:              Your Honor, II would
                                                         would like to read into

the record the transportation code, if    may, if the prosecutor has no objection.
                                    if II may,                          objection. Mr.

        “I’m going to object to you
Dutton: “I’m
Dutton:                                     what you
                                you reading what                            The
                                                 you believe to be the law. The

judge can instruct the jury
                       jury what             The Court: “Let
                            What the law is. The             me see ----
                                                        “Let me              you
                                                                    ---- are you



proposing to read?” Mr. Dudinsky: ““ This here, Section 544.010 sub-paragraph c


Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 32 of
                                                            And II think the jury
governs a motorists stopping at stop signs and yield signs. And                   would
                                                                             jury would

                                               we have to follow.” Mr. Dutton: “Your
                    what the procedure is that we
be entitled to hear what                                                       “Your

                                         The Court: “Sustained” Mr. Dutton:
Honor, I1 object to the side-bar there.” The                                “Thank
                                                                    Dutton: “Thank

                 “The Court’s charge is going to contain all the instructions that the
      The Court: “The
you”. The

jury is going to hear.    When we
                          When we have a charge conference, we                up” Mr.
                                                            we will take this up”
                         I’m not allowed to read this to the jury?” The
                      So I’m
Dudinsky: “All right. So
Dudinsky:                                                                      “No.
                                                                    The Court: “No.

The Court’s charge is going to contain all the instructions as far as the law is
The

                          “Okay.” (RR: Vol. 2, P. 77-78).
                Dudinsky: “Okay.”
concerned.” Mr. Dudinsky:

                 summary closing arguments, a charge conference not transcribed
       Following summary

                                         The presiding judge agreed to include in the
initiated concerning the court’s charge. The

                           you have a reasonable doubt that the Defendant, Robert
                       “if you
court’s charge, Court: “if

Eugene Pritchett, failed to properly stop at the Intersection of Hospital Street and
Eugene

Milam Streets, or if you
Milam                                                  Eugene Pritchett, properly
                     you believe the Defendant, Robert Eugene

stopped at said intersection, then any evidence obtained from the search of Defendant

                                                                           him.”
       Eugene Pritchett’s vehicle shall be disregarded as evidence against him.”
Robert Eugene

(RR: Vol. 3, P. 84, L. 20-25, P. 85 L. 1).
(RR:                                   1).


       The court’s charge did not include the wording of paragraph (( c )) of
       The                                                                 of

               Code 544.010 on
Transportation Code         on the letter of the law governing lawful motorist



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                  of 60
                                       Page 33 of
stopping procedure at stop signs located at intersections.

                                SUMMARY OF
                          VIII. SUMMARY    ARGUMENT
                                        OF ARGUMENT
          must be accounted that if
       It must                                                     Verbatim context of
                                 if the jury had been provided the verbatim


                                                                      ofﬁcer’s reason for
paragraph (( c )) to review for consideration and deliberation on the officer’s

                        jury would
stopping Appellant; the jury would have been informed concerning the letter of the

                                                         off1cer’s reason for stopping
law as it applies to the circumstances, particularly the officer’s

           The jury would
Appellant. The      would have concluded that the officer’s
                                                  ofﬁcer’s basis for stopping

                                              was unlawful.
Appellant and conducting a roadside detention was

                                      ARGUMENT
                                  IX. ARGUMENT

                                                   Code 544.010 (( c )) is the
       Under established Texas law, Transportation Code
       Under

                                         when approaching an intersection with a
                               must obey when
controlling law that motorists must

stop sign or a yield sign.

                      Code 544.010.
       Transportation Code 544010. Stop Signs and Yield Signs. “(a) Unless directed

           by a police officer or traffic-controlled
to proceed by                     trafﬁc-controlled signal, the operator of a vehicle
                                                                              Vehicle or

streetcar approaching an intersection with a stop sign shall stop as provided by
                                                                              by

subsection (( c ).
                ). (
                   ( c ) An operator required to stop by
                       ) An                           by this section shall stop before

                                        of the intersection. In the absence of
entering the crosswalk or the near side of                                  of a

                                                marked stop line. In the absence of a
crosswalk, the operator shall stop at a clearly marked



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 34 of
                                                                                where
stop line, the operator must stop at the place nearest the intersecting roadway where

                   View of
the operator has a view                        on the intersecting roadway.
                        of approaching traffic on                           Leg.H.
                                                                   roadway. Leg.H.

Stats. 1995 74‘“
       1995 74 th
                                 165, effective September 1,
                  leg. Sess. Ch. 165,                        1995" Section (( c )) is the
                                                          1, 1995"


                                                       of this case.
relevant section of the code that applies to the facts of

       The officer testified that Appellant was
       The                                  was stopped for failure to stop at a

                                 The officer agreed that a stop line is the designated
designated point at a stop sign. The

point to stop.   The officer
                 The ofﬁcer testified that a video that was                 shown
                                                        was lost could have shown

                     shown where
appellant could have shown                          The lost video is material
                           where Appellant stopped. The

          The citation for failure to stop at a designated point at a stop sign is
evidence. The

                            The intersection did not have a cross walk
material evidence not lost. The                                   walk nor a stop line

being the essential elements addressed in section (( c )) of the code that require and

                                                                   must comply
mandate under such circumstances the stopping procedure a motorist must

with and follow.

       As itit were, the jury had
       As                     had no video but the jury had
                                                        had available a code of law the

jury
jury could have assessed and applied to the controlling facts and circumstances of the

                       of the intersection.
         conﬁguration of
physical configuration                      The jury only had discursive uncertain
                              intersection. The


                 ofﬁcer from which
testimony of the officer              make its assessment.
                             which to make                 The court erred in its
                                               assessment. The

discretion to disallow the jury                                                    of
                           jury hearing and assessing the written relevant portion of



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 35 of
                               which to wholly judge the facts as they pertain to an
                            by which
section (( c )) of the code by

off1cer’s reason for detention; facts that were and are inextricable and precisely
officer’s

           by a code of law.
controlled by

POINT OF
POINT    ERROR 4.
      OF ERROR
                                        were violated under
      Appellant’s Constitutional Rights were            under the Fourth
                                                                     Fourth
Amendment of the United States Constitution and
Amendment                                   and Article I,
                                                         1, Section 9 of the
                   when the reasonable alternatives that were
Texas Constitution when
Texas                                                     were available to
impoundment were
impoundment   were not implemented.
                       implemented.


                               STATEMENT OF
                          VII. STATEMENT OF FACTS
                                            FACTS
       The foregoing statements of the facts are incorporated herein by
       The                                                           by references for

                        was stopped at a residential street located in the town
all purposes. Appellant was                                                town of San

                                   November 24, 2011. Appellant was
Augustine, Texas in the evening of November                     was initially

stopped for improperly stopping “failure to stop at a designated stop sign”.

                                                                                on his
Appellant’s detention revealed that Appellant did not have his driver’s license on

person.           was arrested without warrant for failure to display driver’s
person. Appellant was                                                 driver’ s license.


The officer
The                                        2014 that he arrested Appellant without a
                                 August 4, 2014
    ofﬁcer testified at trial on August

         (RR Vol. 2, P. 85, L. 24-25).
warrant. (RR
warrant.

                                                         was impounded. Necessity
       Following Appellant’s arrest, Appellant’s vehicle was

                                 impoundment were discussed during defense
of and available alternatives to impoundment
of



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 36 of
counsel’s cross examination of the arresting officer.
                                             officer.


         You impounded
Q. Okay. You impounded the vehicle?

A. Yes, sir. (RR: Vol. 2, P. 87, L. 2-3)

              Now does the San Augustine Police Department have a standardized
   Yes? Okay. Now
Q. Yes?

                 impounding procedures?
policy governing impounding

                        we do.
A. Yes, sir, II believe we

   Did you
Q. Did you bring it
                 it with you?



A. No, sir, I do not have it
                          it with me.



Q. So, your telling the jury
Q.                      jury that there is one?

A. There should be, yes, sir.

   You say there should be? (RR:
Q. You                      (RR: Vol. 2, P. 87, L. 1-2, 17-25).
                                                   1-2, 17-25).


   I’m not sure. II don’t have the policy manual
A. I’m                                    manual in front of
                                                          ofus.
                                                             us. (RR: Vol. 2, P. 88, L.

1)
1)


Q. Now,                                      you that you
   Now, There were alternatives available to you      you could have avoided

impoundment, were there not?

A. Are you              when you
       you referring to when you approached the scene?

(RR: Vol 2, P. 95, P. 1-5)
(RR: Vol              1-5)


      was at the location; you
Q. II was
Q.                         you recall?



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 37 of
A. Yes, sir.

   The care was
Q. The      was not turned over to me, and you knew I was
                                           you knew   was the owner?
                                                              owner?

A. Yes, sir.

                       impound the vehicle and you
      you go ahead and impound
Q. So you                                      you conduct an inventory search?

A. Yes, sir. (RR: Vol.
                  Vol.2,
                       2, P. 95, L. 5-12).

                                SUMMARY OF
                          VIII. SUMMARY    ARGUMENT
                                        OF ARGUMENT
       The Appellant’s
       The                       made an objection that The
           Appe11ant’s Attorney, made                   The impound
                                                            impound was
                                                                    was improper.

                  impound and improper search, then it
Being an improper impound                           it falls under 38.23 (a) of
                                                                             of the

      Code of Criminal Procedure and must
Texas Code                           must be excluded.

                                                                           owner of the
            The evidence in the trial record shows the availability of the owner
            The

vehicle being at the scene of the arrest to     whom the officer
                                                whom     ofﬁcer could have given

           of the vehicle.
possession of

       The evidence in the record shows the vehicle was
       The                                          was legally parked at the curb of

                                                       The evidence in the record
a residential street two blocks from Appellant’s home. The

              was not abandoned
shows the car was
shows                                            ﬂow of traffic or was
                      abandoned nor impeding the flow              was a danger to

public safety.   The evidence also shows
                 The                                      was not mechanically
                                   shows that the vehicle was

                          The evidence in the record shows
             immobilized. The
defective or immobilized.                                             was no
                                                     shows that there was

                                                  was used in the commission
connection between the arrest or that the vehicle was             commission of
                                                                             of a



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 38 of
       The record shows
crime. The        shows the police officer         impound Appellant’s vehicle
                                   ofﬁcer chose to impound

based upon         “C” misdemeanor
      upon a class “C” misdemeanor offense of failure to display driver’s license.

      was no evidence in the record showing that the area in which
There was                                                    which Appellant’s

vehicle   was parked was
          was        was especially vulnerable to crime against motor vehicles. The
                                                                                The

                       shows that Appellant did not consent to nor ask the police
evidence in the record shows

           impound and tow
officer to impound     tow the Appellant’s vehicle. In light of the undeniable

                                  of the vehicle, location of
alternatives available, condition of                       of the vehicle, the police

                 impound and act in bad
officer chose to impound            bad faith and disregard and violate the

                                                       Amendment of the Constitution
constitutional rights proclaimed for all in the Fourth Amendment

of the United States and the given rights of all protected in Article 1,
of                                                                                 of the
                                                                      1, Section 9 of


Texas Constitution.

                                      ARGUMENT
                                  IX. ARGUMENT

       The                       made an objection that The
       The Appellant’s Attorney, made                   The impound
                                                            impound was
                                                                    was improper.

                  impound and improper search, then it
Being an improper impound                           it falls under 38.23 (a) of the



      Code of
Texas Code of Criminal Procedure and must be excluded.
                                             excluded.

       The                           impoundment established at trial was
       The available alternatives to impoundment                      was evidence

showing that the arresting police officer had no credible necessity existing to justify

         impoundment of Appellant’s motor vehicle.
a lawful impoundment



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 39 of
        The State bears the burden of
        The                        of proving that an impound                may
                                                      impound in lawful, and may

                                                         was arrested, (2) no
                    by demonstrating that (1) the driver was
satisfy this burden by                                                     no

                        impoundment were available to ensure the vehicle’s
alternatives other than impoundment

                    impounding agency had an inventory policy, and (4) the policy was
protection, (3) the impounding                                                    was

          Garza v.
followed. Garza           137 S.W.3d
                   State 137
                v. State,                           App-Houston [1
                              S.W.3d 878, 882 (Tex. App-Houston [l“st
                                                                      Dist.] 2004,

pet. Ref’d).
pet.           The owner
               The owner of the vehicle was          The State did not prove that the
                                        was on site. The

                                       impound or inventory policy and if
San Augustine police department had an impound                         if the


policy’s were followed.

         The Court squarely confronted issues of vehicle inventory searches and
         The

impounded in South Dakota
impounded          Dakota v. Oggerman, 428 U.S. 364, 96 S Ct. 3092, 49 L.Ed.2d
                          v. Opperman,



1000 (1976).
1000         “The necessary predicate for any such search, however, is that the
     (1976). “The

automobile be lawfully impounded, that is to say, taken lawfully into official
                                                                      ofﬁcial

                                     At 3100, 3100-01; the automobile has been
          Id., at 375, 376, 96 S.Ct. At
custody.” Id.,

subject to less stringent warrant requirements for searches and seizures than other

                                     Amendment. The
“effects” protected under the Fourth Amendment. The reasons for this are two fold.

                             of an automobile creates circumstances of such exigency
First, the inherent mobility of

                                                           of the warrant requested is
that as a matter of practical necessity strict enforcement of

impossible. Second, there is a lesser expectation of privacy with respect to an
impossible.



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                             40 of
                                     Page 40 of 60
automobile. South Dakota
                  Dakota v. Opperman, supra.
                         v. Opperman,



                                                                          of the
       However, automobiles are considered “effects” and within the scope of

       Amendment, See: Cady
Fourth Amendment,      Cody v.
                            V. Dombrowski,               93 S.Ct. 2523, 37
                               Dombrowski, 413 U.S. 433, 93

                                       v. New
L.Ed.2d 706 (1973); see also: Coolidge v. New Hampshire                     91 S
                                              Hampshire, 403 U.S. 443, 461, 91

CT. 2022, 2035, 29 L.Ed.2d 564
CT.                                    “The word
                           564 (1971); “The word “automobile”
                                                 “automobile” is not a talisman

in whose                    Amendment fades away
   whose presence the Forth Amendment       away and disappears.” Id.
                                                                  Id. In order for

   impoundment of
an impoundment                                                             must be
                                                         of the automobile must
               of an automobile to be lawful the seizure of

                            Amendment.
reasonable under the Fourth Amendment.

                                        may arise from: (1) an unattended vehicle
                            impoundment may
       Reasonable cause for impoundment

that is illegally parked or otherwise an impediment to traffic, Collins v.
                                                                        v. State 630 S.



W.2d 890 (Tex. App. 1982-
W.2d                1982- pet. ref’d).
                               ref‘d). Evidence at trial established that Appellant’s


                                                               ﬂow of traffic on a
        was not unattended or illegally parked or impeding the flow
vehicle was

                  (RR Vol. 2, P. 93). (2) an unattended vehicle that the driver cannot
residential road. (RR

remove                                                                Scmdel v.
remove because he is injured or physically or mentally incapacitated, Sandel    State
                                                                             v. State,



    S.W2d 283 ((Tex.
253 S.W2d       Tex. Cr. App. 052); Broughton v.                2d 147
                                                 State 643 S.W. 2d
                                              v. State,            147 (Tex. App.

1982 .no pet).
1982                 was no evidence that the Appellant was
         pet). There was                                was unable to remove
                                                                      remove his

                                                was physically or mentally
                of his being injured or that he was
vehicle because of

incapacitated. (3) a vehicle that has been stolen or used in the commission of another



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                          41 of
                                     Page 41
crime. Gauldin v.
               v. State,    S.W.2d 411
                  State 649 S.W.2d 411 (Tex. Cr. App. 1984);
                                                      1984); Pearson v. State 649
                                                                     v. State,649



SW2d 786
S.W.2d 786 (Tex. Cr. App. 1983,
                          1983, pet. ref’d),
                                     ref‘ d), Evidence at trial established that


                    was not stolen or connected with nor used in the commission of
Appellant’s vehicle was

               (RR Vol. 2, P. 99). (4) a vehicle the becomes
another crime. (RR                                   becomes unattended because the

          removed form the vehicle, placed under arrest, and his property cannot be
driver is removed

          by any
protected by        means other than impoundment.
                    means            impoundment. Evers v.           S.W.2d 46
                                                           State 576 S.W.2d
                                                        v. State,



               1978)
(Tex. Cr. App. 1978)

                                              owner was
       Evidence at trial established that the owner was at the scene at the time of

appellant’s arrest and the owner was available to safeguard owner’s
                           owner was                        owner’s vehicle. Yet, the

                  who knew
          ofﬁcer who
arresting officer     knew the owner
                               owner was              knew the owner
                                     was an attorney, knew           was the owner
                                                               owner was     owner

                    knew that the owner’s
of the vehicle, and knew
of                                                was in compliance with insurance
                                  owner’s vehicle was

                                       would not allow the owner
and registration requirements however, would               owner possession of
                                                                            of the

vehicle.   (RR Vol. 2, P.
           (RR         F. 95-95)


       An automobile may
       An            may be impounded
                            impounded if               removed from his automobile
                                      if the driver is removed


                                     no other alternatives are available other than
and place under custodial arrest and no

impoundment to insure the protection of the vehicle. Bevavides v.
impoundment                                                                 S.W.2d
                                                                  State 600 S.W.2d
                                                               v. State,



                   1980); Christian v.
809 (Tex. Cr. App. 1980);           v. State,    S.W.2d 359 (Tex. Cr. App. 1980);
                                       State 592 S.W.2d                    1980);

Daniels v.           S.W.2d 809 (Tex. Cr. App. 1980).
           State 600 S.W.2d
        v. State,                              1980).




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                            42 of
                                    Page 42 of 60
       We note that police officers need not independently investigate possible
       We

                impoundment absent objectively demonstrable evidence that
alternatives to impoundment

                                         Eugene Redmond
alternatives do in face, exist. Jonathan Eugene Redmond v.
                                                        v. State,      05-09-01461 -
                                                           State, (No. 05-09-01461-


CR) (Tex. App.-
CR)       App.- Dallas 2011); see also Maybergy
                                       Mayberry v.
                                                v. State,        W.2d 176,
                                                   State, 830 S. W.2d      180
                                                                      176, 180

                     1992, pet ref’d).
(Tex. App. -- Dallas 1992,     ref‘d).


       When impoundment
       When impoundment follows custodial arrest, appellant courts have considered

                                                         impoundment. (1) the
                                                  of the impoundment.
several factors in determining the reasonableness of

                someone at the scene of
             of someone
availability of                                       whom the police could have given
                                     of the arrest to whom

           of the vehicle, (2) whether the vehicle was
possession of                                                       ﬂow of traffic or
                                                   was impeding the flow

was                                                    was locked, (4) whether the
was a danger to public safety, (3) whether the vehicle was

                          would likely be of such duration to require the police to take
detention of the arrestee would

                                           some reasonable connection between the
                                       was some
protective measures, (5) whether there was

                                                    was used in the commission of a
arrest and the vehicle, and (6) whether the vehicle was

           At 179-80.
       Id. At
crime. Id.                               was established in court showing
              l79-80. Objective evidence was                      showing there

                                impoundment that did in fact exist and were available.
were reasonable alternatives to impoundment

       The arresting officer
       The                                     community care-taking justification for
                     ofﬁcer did not assert any community

                              of the officer’s
the impoundment, and in light of                                  no such justification
                                     off1cer’s testimony at trial no      justification

                                                    made no showing that Appellant’s
         The prosecution nor the testifying officer made
existed. The



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 43 of
car was                                         way or crosswalk, or was
    was connected with a crime, blocked a drive way                  was abandoned,

stolen, and immobilized, or posed a hazard or impediment to other traffic. It is also

                                was legally parked in a residential area two
signiﬁcant that Appellant’s car was
significant                                                              two blocks

                                 signiﬁcant, the officer testified the registered
from Appellant’s residence. Also significant,

                     was available at the scene. The
owner of the vehicle was
owner                                            The officer testified
                                                             testiﬁed that he

impounded                  made the arrest. (RR:
impounded the car after he made             (RR: Vol. 2, P. 94, L. 21)

       The evidence for review affirmatively shows
       The                                   shows there were reasonable and lawful

                                impoundment. Respectfully, it
alternatives available to avoid impoundment.               it cannot be concluded




~
that the error was                                                  upon the jury.
               was harmless beyond a reasonable doubt in its effect upon     jury.

Tex.R.APP.P.Ann 81(b)(2).(Pamp.1989)
Tex.R.APP.P.Ann 8 l (b)(2).(Pamp. l 989) Gauldin v. State 683
                                                 v. State,     S.W.2d at 415;
                                                           683 S.W.2d    4 l 5; Fenton

v. State 785 S.W.2d
v. State,                     App.- Austin 1990)
             S.W.2d 443 (Tex. App.-        1990)



POINT OF
POINT    ERROR 5.
      OF ERROR
       The inventory search of Appellant’s vehicle was
       The                                         was an
                                                       an illegal unconstitutional

                                                                              Texas
investigative search for evidence in violation of Article 1, Section 9 of the Texas

Constitution.

                               STATEMENT OF
                          VII. STATEMENT OF FACTS
                                            FACTS
       The forgoing statements of the facts are incorporated herein by
       The                                                          by references for

all purposes.
    purposes.

Appellant’s Brief
       Eugene Pritchett
Robert Eugene                            44 of
                                    Page 44 of 60
                 was followed for over a half
       Appellant was                                                            was
                                                        hunch because Appellant was
                                         half mile on a hunch

                                          on a road where
                     ofﬁcer while driving on
         by a police officer
observed by                                                           known drug
                                                    where allegedly a known

      was located. (RR:
place was          (RR: Vol. 2, P. 48)

                 was stopped on a residential street located in the town
       Appellant was                                                town of San

Augustine, Texas in the evening of November                     was initially
                                               201 1. Appellant was
                                   November 24 2011.

stopped for “failure to stop at a designated point at a stop sign” located 45 feet from

the nearest place to the intersecting roadway. (RR: Vol. 2, P. 73-79)

       Appellant’s detention revealed that Appellant did not have his drivers license

                         was arrested without warrant for failure to display drivers
on his person. Appellant was
on

         The police testified at trial on August 4, 2014
license. The                                        2014 that he arrested Appellant

                   (RR: Vol. 2, P. 85, L. 24-25)
without a warrant. (RR:

                                                                 impounded and
                                                             was impounded
       Following Appellant’s arrest, the Appellant’s vehicle was

             The record shows
inventoried. The        shows that there were reasonable alternatives available to

impoundment and inventory. (RR: Vol. 2, P. 85-88, 91-95)
impoundment

                                                  was conducted resulting in a
                 impoundment, an inventory search was
       Following impoundment,

                 of less than 0.01
trace net weight of                                gram of cocaine found at night
                                              of a gram
                              0.01 hundredths of

                   view by
allegedly in plain view by a second police officer who was
                                           ofﬁcer who  was not conducting the

                     was searching for evidence.
inventory search but was



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 45 of
                                                        ofﬁcer about inventory list.
                       Counsel questioned the arresting officer

   The car was
Q. The     was not turned over to me, and you knew I was
                                          you knew   was the owner?
                                                             owner?

A. Yes, sir.

                       impound the vehicle, and you
      you go ahead and impound
Q. So you                                       you conduct an inventory search?

A. Yes, sir.

Q. Did
Q.                                                                          Does that
   Did -- -- now, the standard criteria for inventory is an inventory list. Does

make sense?
make

                      of value in the vehicle.
A. Yes, sir, anything of
                   .




   And you
Q. And you took an inventory list?

A. Yes.

   You did?
Q. You

A. There should be one, yes, sir. II don’t see it
                                               it with this report.



                       (RR” Vol. 2, P. 95, L. 10-25)
Q. II beg your pardon? (RR”                   10-25)
?>O?>@.>O?>O?>@>




     don’t see one with this -- -- report.
A. I don’t

   You listed the valuables that you
Q. You                           you inventoried?

                                             you with this report.
A. II -- -- I should have, but II can’t tell you

       we don’t have itit right?
Q. But we

                         Your correct on that. (( RR:
A. Right. II understand. Your                     RR: Vol. 2, P.96,
                                                              R96, L. 1-5)
                                                                      1-5)




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                           46 of
                                                   Page 46 of 60
   And I’m
Q. And l’m suggesting to you                                                    was
                                  you conducted an inventory, an inventory that was
                         you that you

  mse to make
a ruse   make a search without a warrant of                     You were searching
                                         of a motorist vehicle. You

for criminal evidence, and you knew you
                           you knew you did not have the probable cause, didn’t you,

otherwise?

A. I didn’t have probable cause for an evidentiary search, no.

                                                  when officer Blackwell came
               was conducting an inventory search when
A. No, sir. II was                                                       came up.

                 ofﬁcer Blackwell was
Q. Okay. So then officer              making a search on his own, wasn’t he? If
                                  was making

                                           must have been searching -- --
   wasn’t part of the inventory search, he must
he wasn’t

            know what
      don’t know
A. II don’t                                   You would
                 what officer Blackwell does. You would have to ask him. (RR:
                                                                         (RR: Vol.

2 P. 96-97)

                                SUMMARY OF
                          VIII. SUMMARY    ARGUMENT
                                        OF ARGUMENT
       The evidence in the record shows
       The                                       owner of
                                  shows that the owner                was available
                                                       of the vehicle was

                                                The arresting officer testified that he
at the scene to take possession of the vehicle. The

                                      impounded the vehicle, and conducted an
arrested Appellant without a warrant, impounded

                          The arresting officer testified that a second officer was
inventory of the vehicle. The                                                   was not

     of the inventory search but
part of                            was searching for evidence allegedly discovered at
                                   was

                     The alleged plain view
night in plain view. The               view evidence consisted of a trace-net weight

                               gram of
          0.01 hundredths of a gram
less than 0.01                      of cocaine.



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                              47 of
                                      Page 47 of 60
       The arresting officer
       The                           impound which
                     ofﬁcer chose to impound which allowed opportunity to conduct

a specious inventory search for investigative purpose that otherwise the arresting

officer lacking the probable cause required under the automobile exception to the

                                                                      on the totality
warrant requirement did not have nor could not have established based on

of the circumstances of the arresting officer’s
of                                    off1cer’s initial reason for following Appellant,


            misdemeanor offence, and the circumstances of
aRR:est for misdemeanor                                of the scene of detention,

     of which, provided the arresting officer with legal probable cause to search
none of

Appellant’s vehicle.

       The inventory search of Appellant’s vehicle was
       The                                         was an unconstitutional

                          was conducted in violation of
investigative search that was                        of Article 1,           of the
                                                                1, Section 9 of


Texas Constitution.

                                     ARGUMENT
                                 IX. ARGUMENT

                                made an objection that The
      The Appellant’s Attorney, made
      The                                              The impound
                                                           impound was
                                                                   was improper.

                  impound and improper search, then it
Being an improper impound                           it falls under 38.23 (a) of the



      Code of
Texas Code of Criminal Procedure and must be excluded.
                                             excluded.

      To rebut the presumption of proper police conduct, a defendant must show
      To                                                                  show the

       was conducted without a warrant and once the defendant rebuts the
search was

presumption the burden shifts to the State to either produce evidence of
                                                                      of a warrant or



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 48 of
prove the reasonableness of
                         of the search.

       Russell v.            SW2d       (TeX.Cr.App. 1986);
                  State 717 S.W.2d 7, 9 (Tex.Cr.App.
               v. State,                             1986); Telshow v.        964
                                                                       State 964
                                                                    v. State,



     2d 303, 307 (Tex.App.
S.W. 2d                       Houston [14
                 (Tex.App. -- Houston
                                          th
                                      [l4”‘  Dist] 1998,
                                             Dist.]       no pet.); White
                                                    1998, no        White v.        871
                                                                             State 871
                                                                          v. State,



S.W.2d 833, 836-37 (Tex.App.-Houston [14
S.W.2d                                   th
                                     [14“‘                            Highwarden
                                                   1994, no pet.) See Highwarden
                                            Dist.] 1994,

v.            S.W.2d 479,481
V. State, 846 S.W.2d         & n. 2 (Tex. App.-Houston
                     479,481 &            App.-Houston [14 th
                                                       [l4‘“         1993), pet.
                                                              Dist.] 1993),

dism’d as improvidently granted, 871
dism’d                               S.W.2d 726 (Tex.Crim. App.
                                 871 S.W.2d                App. 1994). The
                                                                1994). The

          ofﬁcer testified
arresting officer testiﬁed that he arrested Appellant without a warrant and did not

have probable cause to search Appellant’s vehicle (RR: Vol. 2, P. 85)

       A unanimous
       A unanimous ruling stated that a vehicle stop is a seizure of not only the

vehicle but of its occupants. Brendlin v.California, 551 U. S. 249, 127
                                       v.Cali[0rnia, 551            127 S.Ct. 2400,

                        A person is seized for constitutional purposes, when
            132 (2007). A
168 L.Ed.2d 132
168                                                                     when under

                                              would believe that he is not free to
all of the circumstances, a reasonable person would

leave. Nottingham v.              W.2d 585 (Tex.App.
                     State 908 S. W.2d
                  v. State,                (Tex.App. -- Austin 1995). A person is
                                                               1995). A

seized i.e.,
       i.                   when he has been restrained by
         e., arrested, only when                           means of physical force or
                                                        by means

when                       show of authority. California
when he has submitted to a show                          v. Hodari,
                                              Calizornia v.         499 U.S. 621,
                                                            Hodari, 499

111 S.Ct 1547,
111            113 L.Ed.2d 690 (1991); Medtord
         1547, 113                             v. State
                                       Medford v.           S.W.2d 769 (Tex.Cr.
                                                         13 S.W.2d
                                                  State, 13

App. 2000). In order to challenge a search, the defendant has the burden to prove he
App. 2000).

has standing that he has a legitimate expectation of privacy, in the premises or thing



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                             49 of
                                     Page 49 of 60
                    Granados v.
searched or seized. Granados             S.W.3d 217 (Tex.Cr.App.
                                State 85 S.W.3d
                             v. State,                                 The
                                                    (Tex.Cr.App. 2002) The

          had a reasonable expectation of privacy in the vehicle and standing to
Appellant had

object to a search of the vehicle because Appellant had exclusive control of and

                             owner to use the vehicle.
received permission from the owner

                                                            misdemeanor offense of
       Following Appellant’s arrest without warrant for the misdemeanor         of

                                               was handcuffed and confined
failure to display driver’s license, appellant was                conﬁned to the back

                      ofﬁcers control unit. (RR:
seat of the arresting officers              (RR: Vol. 2, P. 86)

       When a policeman has made
       When                 made a lawful custodial arrest of the occupant of an

               may as a contemporaneous incident of
automobile, he may                               of that arrest, search the passenger

compartment of that automobile. New
            ofthat                  York v.
                                New York v. Belton                 101 S.Ct 2860,
                                            Belton, 452 U. S. 454, 101

69 L.Ed. 2d             The Belton holding was
         2d 728 (1981). The                was laid to rest in Arizona v. Grant 556
                                                                       v. Grant,



           129 S.Ct. 1710,
U. S. 332, 129                                                                of
                                           A.L.R. Fed.2d 657 (2009). In place of
                     1710, L.Ed.2d 485, 47 A.L.R.

                                                          may search a vehicle
                                        approach: “Police may
Belton, the court adopted a two-pronged approach:

incident to arrest only if                                          of the passenger
                        if the arrestee is within reaching distance of


compartment at the time of the search or it
compartment                              it is reasonable to believe that the vehicle



                                  Gant at 1723.
                  of the arrest.” Gant
contains evidence of                                      was confined in the
                                          1723. Appellant was

         of the arresting officer’s
backseat of               ofﬁcer’s patrol unit and unable to reach the passenger seat

                         was no
of his vehicle and there was
of                           no reasonable grounds to suspect that evidence of failure



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                               of 60
                                    Page 50 of
to display drivers license would                                       of the
                           would be found in the passenger compartment of

         The arresting officer
vehicle. The           ofﬁcer testified that he had no probable cause justification
                                                                      justification to

       Appe1lant’s vehicle. (RR: Vol. 2, p. 89)
search Appellant’s

       “An inventory search need not be predicated upon
       “An                                         upon the same
                                                            same requirements for

probable cause or in obtaining a search warrant.                            upon the
                                                        Its existence rests upon

                                                                impounded
                                   ofﬁcer has toward a lawfully impounded
caretaking responsibility a police officer

automobile.” Gill v.              W.2d 307, 319 (Tex.Cr.App. 1980)
                     State 625 S. W.2d
                  v. State,                                  1980)

       The state will contend that the warrantless search was
       The                                                was permissible as an

inventory search under South Dakota
                             Dakota v. Oggerman 428
                                    v. Opperman, 428 U.S. 364, 96 S.Ct 3092, 49

                     The burden of
        1000 (1976). The
L.Ed.2d 1000                                                   upon the state.
                                of proof in that regards rests upon

Delgado
Delgado v.
        v. State,     S.W.2d 718, 721
           State, 718 S.W.2d      721 (Tex.Cr.App. 1986)
                                                   1986)

       An inventory search is to ascertain the contents of
       An                                                             impounded
                                                        of a properly impounded

            where a necessity exists (1) to protect the defendant’s property while it
automobile, where                                                                  it



is in police custody, (2) to protect the authorities against claims of lost or stolen

property, or (3) to protect the police from potential danger.   The necessary predicate
                                                                The

for an inventory search is that the automobile be lawfully impounded, that is to say,

                                                       An automobile may
                                      Opperman, Supra. An
taken lawfully into official custody, Opperman,                      may be

impounded if
impounded                  removed from his automobile and placed under custodial
          if the driver is removed




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                          51 of
                                     Page 51
                                                                                   of the
arrest and no other alternatives are available other than to insure the protection of

vehicle. Evers v.State,
               v.Slate 576     W.2d 46 (Tex.Cr.App 1978);
                        576 S. W.2d                1978); Christian v. State 592
                                                                    v. State,



           (Tex.Cr.App. 1980).
S.W.2d 359 (Tex.Cr.App. 1980). Alternatives were available to insure the protection

                The owner
of the vehicle. The
of                  owner of                     was personally at the scene of
                          of Appellant’s vehicle was

                                                    owner’s vehicle as an alternative
                                                 of owner’s
detention and available to insure the protection of

   impoundment and inventory. (RR: Vol. 2, P. 116)
to impoundment                                     The vehicle could have been
                                              116) The

                        owner of
                 by the owner
safely protected by           of the vehicle. Evers,
                                              Evers, Supra.

       An inventory search on
       An                  on a traffic arrest is illegal if
                                                          if the vehicle is parked lawfully


at the time and no need to take the vehicle into custody Fenton v.
                                                         Fenton              S.W.2d
                                                                   State 785 S.W.2d
                                                                v. State,



    (TeX.App. -- Austin 1990,
443 (Tex.App.           1990, no                    was legally parked at a curb on
                                        The vehicle was
                              no pet.). The

                             two blocks from Appellant’s home. (RR: Vol. 2, P. 91)
a residential street located two

Impoundment and inventory search is legal only if
Impoundment                                                no alternative to
                                               if there is no


impoundment. Backer v.
impoundment.                     S.W.2d 463 (Tex.Cr.App. 1983).
                       State 656 S.W.2d
                    v. State,                                   Owner of the
                                                         1983). Owner

                                                    was a reasonable alternative to
vehicle at the scene to take custody of the vehicle was

impoundment and inventory. (RR: Vol. 2, P. 106-107)
impoundment                                106-107)

       In a leading Texas case, Benevidas v.           S.W.2d 809 (Tex.Cr.App.
                                             State 600 S.W.2d
                                          v. State,               (Tex.Cr.App.

                of Criminal Appeals indicated impoundment
1980) the Court of
1980)                                                                   would
                                              impoundment and inventory would

                                                 To remove
be permissible in the following situations: “(1) To                  from an
                                                    remove a vehicle from an



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                 of 60
                                      Page 52 of
                                     was not involved in an accident. (RR:
accident scene.” Appellant’s vehicle was                              (RR: Vol. 2,

   106)
P. 106)

     To remove
“(2) To remove a vehicle parked
                         parked in violation of regulations.” Appellant’s vehicle
                                                                          Vehicle

was                      way, nor parked in a no-parking zone, and was
was not blocking a drive way,                                      was legally

parked at a curb on a residential street. (RR: Vol. 2, P. 107)      The owner
                                                          107) “(3) The owner or

driver requested or consents.”                                owner requested
                                        Neither Appellant nor owner

impoundment or consented impoundment.
impoundment              impoundment. (RR:
                                      (RR: Vol 2, P. 93)               “(4) Officer

                                                                            was
reasonably believes vehicle is stolen.” Officer did not believe the vehicle was

                                 The vehicle
stolen. (RR: Vol. 2, P. 94) “(5) The            abandoned.” Appellant’s vehicle had
                                     Vehicle is abandoned.”

not been abandoned. (RR: Vol. 2, P. 92)

     The vehicle is a hazard.”
“(6) The                                           was not a hazard impeding
                      hazard.” Appellant’s vehicle was

              The vehicle
traffic. “(7) The                                                        danger to
                  Vehicle is so mechanically defective that it creates a danger

                 highway.” Appellant’s vehicle was
others using the highway.”                     was not mechanically defective nor

                                      A statute authorizes impoundment.”
immobilized. (RR: Vol. 2, P. 99) “(8) A
immobilized.                                               impoundment.” No
                                                                         No

                                                 The driver is arrested for being
                               impoundment. “(9) The
applicable statute authorizing impoundment.

                                 and no
intoxicated while in the vehicle and no other person
                                              person is available to drive the

                                                       was arrested for failure to
vehicle or otherwise safeguard the vehicle.” Appellant was

                              owner was
display driver’s license, the owner was available at the scene to drive and safeguard


Appellant’s Brief
Roben Eugene
Robert Eugene Pritchett                     of 60
                                    Page 53 of
                                          The driver is removed
             (RR: Vol. 2, P. 95-96) “(10) The
the vehicle. (RR:                                       removed from
                                                                from his

           and placed under
automobile and
automobile                         and no
                      under arrest and no other alternatives are available other

     impoundment to insure protection of the vehicle.” Owner
than impoundment
than                                                   Owner available to take

               remove vehicle. Appellant’s
possession and remove          Appe1lant’s wife located two blocks from vehicle

                                     remove vehicle. (RR: Vol. 2, P. 94) Benevidas,
and available to take possession and remove                              Benevidas,

Supra.

                                    may be lawful in a variety of circumstances.
       Impoundment of an automobile may
       Impoundment

Mayhood v. State
Mayhood v.               W.2d 873, 874 (Tex. App. 1984,
           State, 669 S. W.2d                     1984, pet ref’d).
                                                            refd). Reasonable

                       may arise from: (1) an unattended vehicle that is illegally
           impoundment may
causes for impoundment

parked or otherwise an impediment to traffic,
                                     trafﬁc, Collins v.              W.2d 890 (Tex.
                                                        State 630 S. W.2d
                                                     v. State,



         1982, pet ref’d);
Cr. App. 1982,                                                                remove
                   ref’ (1); (2) an unattended vehicle that the driver cannot remove


                                                               Sande] v.
because he is injured or physically or mentally incapacitated, Sandel    State 253 S.
                                                                      v. State,



W.2d 283
W.2d                    1952); Broughton v.
     283 (Tex. Cr. App. 1952);           v. State,        W.2d 147
                                            State, 643 S. W.2d 147 (Tex. App.

      no pet.) (3) a vehicle has been stolen or used in the commission of another
1982, no
1982,

crime, Gauldin v.
               v. State,    SW2d 411
                  State 683 S.W.2d                    1984); Pearson
                                   411 (Tex. Cr. App. 1984); Pearson v. State 649
                                                                     v. State,



                      1983, pet ref’d);
S.W.2d 786 (Tex. App. 1983,                               becomes unattended because
                                ref’ d); or (4) a vehicle becomes


              removed from the vehicle, placed under arrest, and his property cannot
the driver is removed

be protected by     means other than impoundment, Evers v.
             by any means                                               W.2d 46
                                                           State 576 S. W.2d
                                                        v. State,




Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                               of 60
                                    Page 54 of
                      The arresting officer stated that impoundment
               1978). The
(Tex. Cr. App. 1978).                                   impoundment and inventory

was solely based upon
was                               arrest. (RR: Vol. 2, P. 94)
                 upon Appellant’s arrest.

       The arresting officer conducted the inventory of Appellant’s vehicle. The
       The                                                                   The

burden is on              show a lawful inventory. State v.
          on the State to show                                        S.W.2d 105,
                                                            Giles 867 S.W.2d
                                                         v. Giles,           105,

108 (Tex. App. -- El Paso, pet. ref’d).
108                                     As in Giles and this case, the State did not
                                refd). As

provide the trial court with a written inventory Policy.

                                                impounded in the first place. The
       Appellant’s vehicle should not have been impounded                     The

                                   impoundment other than Appellant’s arrest that had
State did not offer any reason for impoundment

no                              The available alternatives were affirmed in court.
no connection with the vehicle. The

The testimony in court showed
The                    showed that the officer’s
                                       off1cer’s inventory search did not include a


written inventory list nor did the State provide the court with a written inventory

policy.    An inventory search is permissible under the federal and state constitutions
           An

if                                impoundment.
if conducted pursuant to a lawful impoundment.


       The court of
       The       of criminal appeals stated that “before and inventory search can be

                                                                     impoundment.”
                       must be an inquiry into the lawfulness of the impoundment.”
upheld as lawful there must

Benevides,
Benevides, Supra.

          The impound was
          The impound was a violation of
                                      of Appellant’s rights under Article 1,
                                                                          1, Section 9


of the Texas Constitution.
of           Constitution.




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                 of 60
                                      Page 55 of
                                   CONCLUSION
                                X. CONCLUSION

       The issues addressed in Appellant’s appeal are fundamental to the ingrained
       The

judicial principals characteristic of sovereign nation. Appellant initially argued that


             was prohibited by
his subpoena was            by an insupportable technicality foreclosing receipt of

evidence that could be of an importance to a legal defense. Authorities acting in

                                                                       no judicial
behalf of the State concluded evidence unavailable or lost should have no

                                                                              was
weight within a legal matter concerning the innocence beyond guilt. Appellant was

        by a judicial system from imparting to a jury an instructive guidance inherent
subdued by

                                            Freedom from being subjected to
              of law for its understanding. Freedom
within a code of

                                was subordinated to a callous disregard for the
unreasonable seizure and search was

people’s rights.

       Appellant respectfully submits that he has shown                  may be what
                                                  shown that due process may    what

is only due. Appellant’s right to be secure under Article 1,
                                                          1, Section 9 of the Texas



             was of
Constitution was       moment when
                 of no moment when Appellant’s vehicle was
                                                       was impounded
                                                           impounded and

                                     impound were readily available to police officers
searched even though alternatives to impound

                                                 The arresting officer
acting in disrespect to their oath to the State. The                   who arrested
                                                               ofﬁcer who

                                                 impounded and inventoried
Appellant for failure to display drivers license impounded

                          A                              commenced searching
Appellant’s vehicle. A second police officer arrived and commenced




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                of 60
                                     Page 56 of
Appellant’s vehicle not for valuables nor evidence to display drivers license but

                                                         The second officer without
                       of another crime -- -- any crime. The
searching for evidence of

developed probable cause to search Appellant’s vehicle suspiciously found a trace

amount less than 0.01
amount                               gram of cocaine. The
                 0.01 hundredth of a gram             The exclusionary rule is

warranted.

       Appellant entrusts the Honorable Court to exclude the unlawfully obtained

                                           remand of
evidence and enter a dismissal or accord a remand                    new trial.
                                                  of this case for a new




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                               of 60
                                    Page 57 of
                                PRAYER FOR
                            XI. PRAYER FOR RELIEF
                                           RELIEF
       WHEREFORE ABOVE PREMISES
       WHEREFORE ABOVE PREMISES CONSIDERED,
                                CONSIDERED, Appellant prays that
Honorable Court reverse the judgement
                            judgement of the trial court and render judgement
                                                                    judgement in

      of Appellant, or in the alternative, Appellant respectfully request that the
favor of

                                                                273“rd District Court
                                   remand this case back to the 273
Honorable Twelfth Court of Appeals remand

                                     new trial.
of San Augustine County, Texas for a new
of

                                  Respectfully submitted,

                                  LAW OFFICE
                                  LAW  OFFICE OF   DONOVAN PAUL
                                                OF DONOVAN          DUDINSKY
                                                              PAUL DUDINSKY
                                  701 South Liberty Street
                                  701
                                                        75972
                                  San Augustine, Texas 75972
                                  Phone:
                                  Phone:      936-275-9871
                                              936-275-9871
                                  Fax:        936-275-9655
                                              936-275-9655
                                  E-Mail:     d auldudinsk    ahoo.com
                                              dpauldudinsky@yahoo.com


                          XII. CERTIFICATE OF SERVICE
                               CERTIFICATE OF SERVICE
                                                copy of
       I hereby certify that a true and correct copy                           was served
                                                     of this Appellant’s Brief was

on each attorney of record or party in accordance with the Texas Rules of Civil
on

                     on this 12
Procedure (Appealed) on      12"‘
                                th
                                   day of January, 2015.



                                                      /s/donovan paul dudinsky
                                                      ___________________________
                                                       Donovan Paul Dudinsky
                                                       Donovan



Appellant’s Brief
       Eugene Pritchett
Robert Eugene                                 of 60
                                      Page 58 of
                          CERTIFICATE OF
                    XIII. CERTIFICATE    COMPLIANCE
                                      OF COMPLIANCE
                           document contains 11,116
       I certify that this document                 Words (counting all parts of the
                                             11,116 words

                          document was
font. I certify that this document                   Word Perfect X6, and according
                                   was prepared with Word

                                                             TRAP 9.4(i)(1)
                                                          by TRAP
to the programs word-count function, the sections covered by

         11,116 words.
contains 11,116

                                                    /s/donovan paul dudinsky
                                                       donovan
                                                    ___________________________
                                                    Donovan Paul Dudinsky
                                                    Donovan




Appe11ant’s Brief
Appellant’s
       Eugene Pritchett
Robert Eugene                               of 60
                                    Page 59 of
                                      APPENDIX
                                 XIV. APPENDIX
                                 XIV.

APPENDIX “A”
APPENDIX “A”                                                From Illegal Detention
                      Motion to Suppress (Evidence Obtained From
                      Motion

                                 Impoundment and Inventory).
                     and Illegal Impoundment

APPENDIX “B” Judgement of Conviction by
APPENDIX “B”                         by Court

APPENDIX “C” Trial Court’s Certification
APPENDIX “C”                                                 of Appeal
                           Certiﬁcation of Defendant’s Right of

APPENDIX “D” Defendant’s Written Notice of Appeal
APPENDIX “D”                               Appeal

APPENDIX “E”
APPENDIX “E”                                                                  of
                     Defense Exhibits 2, 3, and 4 Photographs of Intersection of

                     Alleged Traffic Violation




Appellant’s Brief
       Eugene Pritchett
Robert Eugene                               of 60
                                    Page 60 of
APPENDIX “A”
                     IN THE 273"’ JUDICIAL DISTRICT COURT OF                                     .   FILED
                               SAN AUGUSTINE COUNTY, TEXAS                                   -
                                                                                           #§_L—,_30"7‘:%‘i@5>"
                                      STATE OF TEXAS
                                                                                                        .4
                                                                                                                 Clerk
                                                                                           JEAN STEPTOE District
                                                                                           SAN AUGUST‘ TEXAS
THE STATE OF TEXAS                                        §                                 or   W.“

         VS.                                              §         Cause No. CR-13-8411
                                                                    Cause No. CR-11-8412
ROBERT EUGENE PRITCHETT                                   §


                                      MOTION To SUPPRESS
   (Evidence Obtained        From Illegal Detention and Illegal Impoundment and Inventory)

TO THE HONORABLE JUDGE OF SAID COURT:
    Now Comes Defendant, Robert Eugene Pritchett respectfully moving the Honorable Court
to suppress   and exclude   illegally obtained   evidence pursuant to an unlawful detention and        illegal


impoundment and inventory Search of Defendant’s vehicle in violation of the Fourth Amendment

of the United States Constitution and Article       1,   Section 9 of the Constitution of the State of

Texas, and Article 38.23 of the Texas Code of Criminal Procedure.

                                          Statement of Facts

  In the early evening of Thanksgiving        November 24, 2011, Defendant’s          vehicle   was observed

on a public roadway by a passing police officer. The police officer began pursuit and followed

Defendanfs vehicle for half-mile. The police        officer stopped the   Defendant two blocks from

Defendant’s residence for fail to stop   at   a designated point    at stop sign.   Upon his approach to

Defendant’s vehicle, police officer who       knew Defendant, knew his place of residence, knew that

Defendant’s place of employment was a local law ﬁrm, asked Defendant for Defendant’s driver’s

license that Defendant did not    have on his person at the time, then asked Defendant for consent

to Search Defendant’s vehicle. Defendant not consenting to search,           was asked to exit his vehicle,

                                                   Page       1.



                                                                                ©@l?@Y
at   which time, police officer then asked Defendant to open his mouth                     into   which police   officer

shined a ﬂashlight.    A second police ofﬁcer showed up and approached Defendant for purpose
of detecting some suspicious odor and detecting none told the first police officer to arrest

Defendant for not having his driver’s license on his person. Defendant’s hands were handcuffed

behind his back. Defendant then being secured was placed inside ﬁrst police ofﬂcer’s patrol                          car.


     Defendant’s employer (lawyer) and owner of Defendant’s vehicle that Defendant drove for

business and personal use pursuant owner’s permission, nevertheless, owner of vehicle arrived

at the   scene of detention. The police officers nevertheless seized, impounded, and conducted an

inventory of said vehicle, during which claiming discovery of a trace or a smear of cocaine in the

inside of the door pocket/panel of open driver’s side door.

                                         Agggment and Authorities

                                                            I.



     Roadside detention of Defendant’s motor vehicle was in violation of Transportation Code

section 544.010 that governs operator stopping procedure                     when approaching Stop       Signs and

Yield Signs, to wit: (a) “unless directed to proceed by a police officer or traffic-control

signal, the operator   of a vehicle or streetcar approaching an intersection with a stop sign shall

                                                       “
stop as provided   by Subsection ( c )”.   (   c   )       An operator required to stop by this section shall
stop before entering the crosswalk     on the near side of the               intersection. In the   absence of a cross-

walk, the operator shall stop at a clearly marked stop               line.   In the absence of a stop line, the

operator shall stop at the place nearest the intersecting roadway where the operator has a View

of approaching   traffic   on the intersecting roadway”.




                                                           Page 2.
       The officer who conducted the roadside detention, impoundment and inventory search of

 Defendant’s vehicle issued a warning citation on the basis that Defendant Failed to Stop at a

 Designated Point at Stop Sign. Defendant was subsequently arrested and issued citation for

 Fail to Display       DL. However, The erroneous day/date/time of Contact appearing at the top

 of citation regarding warning for failed to stop at a designated point          at stop sign   and arrest/

 citation for failure to display driver’s license is dated: 11/25/2011        3:22 AM.. Showing not

 that the encounter      had though factually taken place       in the early evening   of November 24, 201 1,

 but shows the encounter took place on the following morning of November 25, 2011
                                                                                                     @ 3:22 am.
    The Defendant’s vehicle was observed by a police ofﬁcer being on a public roadway. The

police officer had not observed a crime having been committed nor did said ofﬁcer observe a

crime in progress. The police ofﬁcer pursued and follow Defendant’s vehicle for one-half mile.

A hunch, suspicion, or good faith perception is not enough alone to satisfy the probable cause
burden.      St11ll v. State,   772 S.W.2d 449 (Tex.Cr.App. 1989). The events perceived by the police

officer     must be out of the ordinary, suspicious and tie a suspect with a criminal act.        _S_tﬁ

    The Defendant was pulled over and subjected to roadside             detention.   A person is seized for
constitutional purposes,          when under all of the circumstances, a reasonable person would believe

that   he is not free to leave. Nottingham       v. State,   908 S.W.2d 5 85 (Tex.App.— Austin 1995).

   Incident to the     initial   roadside detention, the Defendant was arrested without warrant for not

having his drivers license on his person, handcuffed, and Defendant was placed inside a patrol

car.   An arrest occurs when a person’s liberty or movement is restricted or restrained. Arnores v.

§t_at_e,   816 S.W. 2d 417 (Tex.Cr.App. 1991). The police searched Defendant’s vehicle incident to

Defendant’s      arrest. In     Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed. 2d 485, A.L.R.

                                                     Page 3
 Fed. 2d 657 (2009) the Court adopted a two-pronged approach: “Police                   may search a vehicle
 incident to arrest only if the arrestee        is   within reaching distance of the passenger compartment at

the time of the search or        it   reasonable to believe that the vehicle contains evidence of the offense

of arrest.” Defendant was secured in patrol car and therein was unable to reach the passenger

compartment of his vehicle, and the vehicle did not contain evidence of the crime of not having

his drivers license.     “The Defendant was arrested for having a suspended             license; there   were no

reasonable grounds, reasonable suspicion, or probable cause to suspect that evidence of

license suspension      would be found in the vehicle.” §a_n_t_.

   Following the placement of Defendant in the patrol              car, the police officers   impounded

Defendant’s vehicle and conducted an inventory search of Defendant’s vehicle                   at the   scene of

detention. Impoundrnent          and inventory search legal only if no alternative to impoundment.

Backer v.    State,   656 S.W.2d 463 (Tex.Cn'm.App. 1983). Inventory search on traffic arrest is

illegal if vehicle    parked lawfully at time and no need to take        it   into custody. Fenton v. State,


785 S.W.2d 443 (Tex. App.— Austin 1990, no pet.)

   Defendant’s vehicle was lawfully parked on a residential roadway near its roadside curb.

Defendant’     s   vehicle   was not parked in a no parking zone. Defendant’s lawfully parked vehicle

did not impede trafﬁc. Defendant’s vehicle had not been abandoned or immobilized.

Defendant’s vehicle was lawfully parked two blocks away from Defendant’s residence where

Defendant’s wife resided and was available to take possession of and safeguard Defendant’s

vehicle. Defendant’s arrest for trafﬁc violation            would have required Defendant to be transported

to jail   and following procedure would have been in a short time (was released on personal

recognizance) released and could have returned to the vehicle to take possession of and

                                                       Page 4
 safeguard vehicle. Defendant’s vehicle       was not stolen. Defendanfs lawyer, employer, and owner

 of vehicle who gave Defendant permission to drive vehicle for business and
                                                                            personal use was

 available at the scene    and time of detention to take possession of vehicle. Defendant’s vehicle

 was not seized as evidence being connected to a crime. There was no reasonable connection

 between the   arrest   and the vehicle.

   An automobile may be impounded if the driver is removed from his automobile and placed
under custodial arrest and no other alternatives are available to insure the protection of the

vehicle. Evers v. State,    576 S.W.2d 46 (Tex.Cr.App.l978).

       “The word ‘automobile’    is   not a talisman in whose presence the Fourth Amendment fades

away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91                       S.Ct. 2022, 2035,

29 L.Ed. 564 (1971). Because judicially sanctioned inventory search of automobile                     is dilution   of

Fourth Amendment right to be secure against unreasonable searches and seizures, impoundment

and search must be carefully examined and narrowly conﬁned               in   each case. Rodriguez        v. State,


641 S.W.2d 955 (Tex. App.— Amarillo 1982). Irnpoundment improper                   .   .   .no   showing car

illegally parked. RodrigL_1ez.


  In the leading Texas case, Benavides v. State, 600 S.W.          2d 809 (Tex.Crim.App. 1980) the

court of Criminal Appeals indicated irnpoundment            would be   likely   be permissible in the

following situations:

  1.   To remove a vehicle from an accident scene. Defendant’s vehicle was not involved in an
accident.
  2. To remove a vehicle parked in violation of regulations. Defendant’s vehicle was not
parked in violation of regulations.
  3. The owner or driver requested or consents. Neither owner or driver requested or
consented.
  4. Officer reasonably believes vehicle       is stolen.   Vehicle not stolen.

                                                  Page 5
 5. The vehicle is abandoned. The vehicle was not abandoned.
 6. The vehicle is a hazard. The vehicle was not a hazard impeding trafﬁc ﬂow.
 7. The vehicle is so mechanically defective that it creates a danger to others using the
highway. The vehicle was not mechanically defective.
 8.   A statute authorizes impoundment. No applicable statute authorizing impoundment.
 9.   The driver is arrested for being intoxicated while in the vehicle and no other person is
available to drive the vehicle or otherwise safeguard it. The driver was not arrested for being
intoxicated, and other persons were available to drive the vehicle and safeguard the vehicle.
  10. “If the driver is removed from his automobile and placed under arrest and no other
alternatives are available other than impoundment to insure the protection of the vehicle.”
Other alternatives were available other than impoundment to insure the protection of the vehicle.
Benavidas

   WHEREFORE, said Defendant prays that hearing be had hereon and that upon hearing
hereof that this Court judicially ﬁnd and determine that said detention and seizure was without

warrant and impoundment unreasonable in violation of the Fourth and Fourteenth Amendments

to the Constitution   of the United States and Article        1,   Section 9 of the Constitution of Texas, that

the substance seized    and taken from said vehicle of the Defendant at said time be suppressed and

excluded from evidence in this case pursuant to Section 38.23              (a)   of the Texas Code of Criminal

Procedure and the,State of Texas and         its   agents prosecuting this case be ordered to refrain from

offering in evidence or producing in the presence           of the jury on the trial of this case and

substance claimed by the State to be trace/smear cocaine and from asking any question of either

of said police ofﬁcers as to the presence of said substance in said vehicle                  at said time    and place.


                                                                   ~onovan       aul   Dudinsky
                                                                   Counsel for Defendant          ~~         +
                                                                                                   A    ..       Ll-,

SWORN TO AND SUBSCRIBED BEFORE ME by Donovan Paul Dudinsky onkiiiiya-i-, 2014,
who being one and same acknowledged by his signature in my presence to which signature
have placed my hand and seal of office.




      ~
                                                                        Notary Public, State of Texas
                                                                                                                  ~
      ~~              JANICE
               Nmaw Public,
                               K.   MILLER
                           sxme 01‘ mos
                 My Commission Expires               Page 6
                                                                         San Augustine Counbf’ Texas
                                                                         My Commission Expires. le — t2 A 1
                                                                                         .    .
                                                                                                             _




                   Ocvooec 22. 2017
                                                   ORDER
   The above Motion     to Suppress   Evidence Obtained From            Illegal   Detention and Illegal




                        ~
Impoundment and Inventory was duly ﬁled, presented, and heard at the time and
                                                                              manner
required by law and the Court having duly considered same, ﬁnds
                                                                that said Motion should be

and is hereby Granted           Denied                ,    to   which ruling Defense duly excepts and

respectfully requests hereby that the Court ﬁle            written ﬁndings
                                                     its                          of fact and conclusions of
law.




                                             PRESIDING IUDGE
                                      15'
                                            and 273“ Judicial      Districts
APPENDIX “B”
                          IN   THE DISTRICT COURT OF SAN AUGUSTINE COUNTY
                                                STATE OF TEXAS

THE STATE OF TEXAS                                      §


VS.                                                     §           CAUSE NO.     CR-13-8411

ROBERT EUGENE PRITCHETT
Incident
State
           No./TRN: 915386994X
        ID No.: 04876899
                                                        §                                    ,q/ 5
                                                                                              5['L""‘C
                                                                                                         1 "20
                                                                                             JEAH STE.’-‘TOE D-fgjrjci
                                                                                                                       ~~
                                                                                                                       A




                                                                                                                           rk

                                 JUDGMENT OF CONVICTION BY COURT;                            :9”   f~UG“d§“tr§:,   T

                                         COMMUNITY SUPERVISION                                           5


Judge Presiding: Charles R. Mitchell                    Date of Judgment: September 10. 2014
Attorney for                                             Attorney for
the State: J. Kevin Dutton                               Defendant: Donovan Dudinsky
Offense convicted of: Possession of Controlled Substance Drug Free Zone 8481.115 481.134 HSC
Degree: Third                                            Date of Offense: November 24. 2011
Applicable punishment range (including enhancements, if any): 2 years to 10 years TDCJ ID
Charging Instrument: Indictment         Plea: Not Guilty      Jury Verdict: Guilty
Terms of Plea Five (5) years conﬁnement in the Texas Department of Criminal Justice Institutional Division
Bargain:          probated for ﬁve (5) years; a fine in the amount of $3000.00
                   not probated: restitution as stated below.
Verdict for Offense: Guilty
Plea to Enhancement                     Finding on                      Finding on
Paragraph(s): N/A                       Enhancement:   N/A             Deadly Weapon: N/A
Finding of                                                  Finding of
Family Violence: N/A                                        Bias or Prejudice:   N/A
Date Sentence                                               Court
Imposed: September 10. 2014                                 Costs: $339.00
Punishment and Place                                    Date   to
of Conﬁnement: 5 years TDCJ ID                          Commence: September          10,   2014
     probated for 5 years; Fine of $3000.00
Time    Credited:                                      Total amount of
                                                       Restitution/Reparation: $140.00
Name & address for
Restitution: DPS Lab
Victim Impact
Statement Returned:
           On the 4m day of August, 2014, the above numbered and entitled cause was called for trial, and the State
appeared by the attorney stated above, and the Defendant and the Defendm1t’s attorney, as stated above, were also
present. Thereupon both sides armounced ready for trial. A jury of twelve persons was duly selected, impaneled and
sworn. The Defendant entered the above plea to the charging instrument aﬁer reading thereof. Having heard the
indictment read, and the defendant’s plea of not guilty thereto, the case proceeded to trial before the jury and after
conclusion of the case and the jury having all the evidence submitted, the jury was duly charged by the Court and the
Jury retired in charge of the proper officer to consider their verdict. The Jury after having reached a verdict in the
guilt and innocence stage was brought into open Court by the proper officer in the presence of the defendant and his
counsel.  The Jury in open Court and in due form announced that it had reached a verdict, which verdict was
received by the Court and pronounced in open Court and entered into the minutes of the Court as follows, to-wit:

                                               “VERDICT FORM #1

                     WE,
                   the Jury, ﬁnd the Defendant,         ROBERT EUGENE     PRITCHETT, guilty of the offense of
       possession of a controlled substance, as charged in the indictment.

                                                        /s/   Rickey Smith
                                                        Presiding Juror”

       And thereupon, the Defendant elected to have his punishment assessed by the Court.

       And thereupon the Court ordered a pre-sentence investigation to be done.

       It is       therefore   ORDERED, ADJ UDGED  and DECREED by the Court that the defendant is guilty of the
offense stated above, that there is an afﬁrmative ﬁnding of a drug free zone, and that punishment has been sent by
conﬁnement in the Texas Department of Criminal Justice Institutional Division for ﬁve (5) years. It is, therefore,
ORDERED by the Court that the imposition of the sentence in this case is hereby suspended. The Defendant is
placed on community supervision for ﬁve (5) years, subject to the conditions of supervision imposed by the Court in
an order that is hereby incorporated into this judgment.

           It is   therefore   ORDERED, ADJUDGED  and DECREED by the Court that the defendant is guilty of the
offense of possession of a controlled substance drug free zone and that punishment be ﬁxed and assessed as set forth
above, and the State of Texas recover of said Defendant all court costs in this prosecution expended, for which
execution will issue.

           Furthermore, the following special ﬁndings or orders apply: none.




                                          /A/z//
                                         Jddge Presiding

                                         Date Signed:         74    /(   Z V/ff
                                                         S‘



Defendant’s right thumbprint:
APPENDIX “C”
                                           CAUSE N0.       CR-8411

THE STATE OF TEXAS                                  §          IN THE 273“ JUDICIAL DISTRICT
                                                    §
VS.                                                 §          COURT OF
                                                    §
ROBERT EUGENE PRITCHETT                             §          SAN AUGUSTINE COUNTY, TEXAS
      TRIAL COURT’S CERTIFICATION OF DEFENDANT’S RIGHT OF APPEAL


L
       1,   Judge of the trial court,   certify this criminal case:


       is   not a plea-bargain case, and the Defendant has the light of appeal; (or)

       is   a plea-bargain   case, but matters   were raised by written motion ﬁled and ruled on before

       trial   and not withdrawn or waived, the Defendant has the right to appeal;          (or)

       is   a plea-bargain case, but the trial court has given permission to appeal, and the Defendant

       has the right to appeal; (or)

       is   a plea-bargain case, and the Defendant has NO right to appeal;       (or)

       is   a deferred adjudication case, and the Defendant has a limited right to appeal;            (or)

       the Defendant has waived the right to appeal.                                    -




                                                                      E PRESID

                                                                 f- /p r 2 o /«-r
                                                               DATE SIGNED
       I acknowledge that I have been informed of the above Certiﬁcation                              court and
                                                                         by the               Irial
waive a receipt of a copy thereof.


                                                               DEFENDANT



                            ~
               J El   LED                                  ~
        AS?/1»? bo'owcK:"'g_     M
            Q -/‘Q     29   /(
        JEAN STEPTOE Dlsiict lerk
        SAN AU    ,1  ,TEXAS
        av ..___/
                  /
APPENDIX “D”
                                                CAUSE NO. CR-8411
THE STATE or TEXAS                                            §         IN THE 273“ JUDICIAL DISTRICT

vs.                                                           §         COURT or
ROBERT EUGENE PRITCHETI‘                                      45        SAN AUGUSTINE COUNTY, TEXAS
                                 WRITTEN NOTICE or APPEAL
TO THE HONORABLE JUDGE or SAID COURT:
  Now Comes Robert Eugene Pritchett, Appellant in the above styled and numbered cause,
on this 7"‘ day of October, 2014, and Appellant timely ﬁles this his written notice of appeal with

said Court. Appellants’s sentence and ﬁne            was imposed on the        10"‘   day of September, 2014.

  Appellant ﬁles this his written notice of appeal within thirty (30) days of sentence being

imposed and pursuant to Vemon’s Ann. Rules App. Proc. Rule 26.2 (a)(1) and Appellant ﬁles

this his written notice   of appeal based upon Appellant having been convicted by jury of

Possession of a Controlled Substance in a Drug Free Zone and Appellant was sentenced to serve

ﬁve (5) years regular probation and assessed a ﬁne amount of Three Thousand Dollars
                                                                                                          -



                                                12"‘ Court of Appeals the trial couIt’s judgment in
($3,000.00). Appellant desires to appeal to the

this criminal conviction litigation.


  WHEREFORE PREMISES CONSIDERED, Appellant respectfully requests that
Appe1lant’s Written Notice of Appeal be entered of record on this date.

Entered by Appellant’s Attorney on thisl"'_day of October, 2014.
                                                                                        Respectfully submitted,



                                                3
                                                                                          onovan aul Dudinsky
                                 ;,7[%‘
                                          :'3Bo'3Loc-( _m.q                              TSBN: 24038869         /
                                                                                         Attorney for Appellant,
                                 :F_j__
                                  IAN STE!-":'OE
                                                    2’)
                                                          .


                                                    Céstnct        rk                    Robert Eugene   pl-itchett
                                  ass‘! IUSUSTJQEC
                                                          ﬁg
                                 CER HHCAIE OF SERVICE
   Hereby certiﬁed that a true and correct ﬁle—stamped copy of the original document having

been ﬁled and thereby become dully recorded has heen personally served by hand on this day of

October 7, 2014, to the oﬂice of the District Attorney located in the 273'“ Judicial District

Courthouse of San Augustine County, Texas, San Augustine, Texas 75972.




                                                                  Donovan §aul guééigky         J,/3
APPENDIX “E”
