                                                                                          ACCEPTED
                                                                                      03-15-00065-CR
                                                                                              5928222
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                  7/2/2015 4:46:07 PM
                           No. 03-15-00065-CR                                       JEFFREY D. KYLE
                                                                                               CLERK




                                                                      FILED IN
                      In the Third Court of Appeals            3rd COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                              Austin, Texas
                                                               7/2/2015 4:46:07 PM
                                                                 JEFFREY D. KYLE
                                                                       Clerk

                         ELIZABETH BLACK,
                                                  Appellant,

                                       v.

                       THE STATE OF TEXAS,
                                                  Appellee.


               On appeal from the County Court-at-Law Number Five,
                                Travis County, Texas
                         Trial Cause No. C-1-CR-13-217530




                           STATE'S BRIEF


                                     DAVID A. ESCAMILLA
                                     TRAVIS COUNTY ATTORNEY


                                     GISELLE HORTON
                                     ASSIST ANT TRAVIS COUNTY ATTORNEY
                                     State Bar Number 10018000
                                     Post Office Box 1748
                                     Austin, Texas 78767
                                     Telephone: (512)854-9415
                                     TCAppellate®traviscountytx.gov

July 2, 2015                         ATTORNEYS FOR THE STATE OF TEXAS



                      ORAL ARGUMENT IS NOT REQUESTED
                         TABLE OF CONTENTS

INDEX OF AUTHORITIES ............................................ 111


STATEMENT OF THE CASE ............................................ 1


ISSUES PRESENTED ................................................. 1


BACKGROUND ..................................................... 2


SUMMARY OF THE ARGUMENT ....................................... 4


ARGUMENT


     Reply Point: The trial court did not abuse its discretion in
     overruling Black's motion to suppress the State's evidence ........ 5

     1.    Black's contentions on appeal ............................ 5

     2.    Properly viewed, the totality of the circumstances
           shows that the detaining officer had reasonable
           suspicion of criminal activity ............................. 7

     3.    Whether or not the barricades and signs were
           properly placed is not a legitimate issue .................. 10

           3.1.   The matter of the signs' and barricades'
                  propriety is unpreserved .......................... 10

           3.2.   The evidence shows that Black knew of the
                  checkpoint but consciously disregarded it ........... 10



                                     1
          3.3.   The barricades' and signs' alleged failure to
                 comply with a statutory definition and the
                 MUTCD is unrelated to the exclusionary rule's
                 purpose and therefore cannot trigger its application .. 11

          3.4.   Black has no standing to complain of the
                 barricades' and signs' placement ................... 14

PRAYER .........................................................        14

CERTIFICATE OF COMPLIANCE .......................................       15

CERTIFICATE OF SERVICE ...........................................      16




                                    ii
                           INDEX OF AUTHORITIES


Statutes                                                         Page
TEX. CODE CRIM. P. art. 38.23(a)
      (West 2005) ................................................ 11
TEX. PENAL CODE§ 49.04(a), (d)
      (West. Supp. 2014) ........................................... 1
TEX. TRANSP. CODE§ 472.022(a)
      (West 2013) ................................................. 9
TEX. TRANSP. CODE§ 472.022(b)
      (West 2013) ................................................. 5
TEX. TRANSP. CODE§ 544.004(a)
      (West 2011) ................................................. 9

Rule
TEX. R. APP. P. 33.1(a)(1) ........................................... 10

Cases
Carroll v. State, 911 S.W.2d 210
       (Tex. App.-Austin 1995, no pet.) ....................... 11, 12, 13
Chavez v. State, 9 S.W.3d 817
       (Tex. Crim. App. 2000) .................................... 12, 13
Curry v. State, 831 S.W.2d 485
      (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd) ............... 12
Derichsweiler v. State, 348 S.W.3d 905
      (Tex. Crim. App. 2011) ........................................ 9
Drago v. State, 553 S.W.2d 375
      (Tex. Crim. App. 1977) ....................................... 12
Fisher v. State, 839 S.W.2d 463
      (Tex. App.-Dallas 1992, no pet.) ............................. 12
Jimenez v. State, 838 S.W.2d 661
      (Tex. App.-Houston [1st Dist.] 1992, no pet.) .................. 12

                                    iii
Lane v. State, 951 S.W.2d 242
       (Tex. App.-Austin 1997, no pet.) ............................. 12
Lopez v. State, 817 S.W.2d 150
       (Tex. App.-El Paso 1991, no pet.) ............................. 12
Lujan v. State, 331 S.W.3d 768
       (Tex. Crim. App. 2011) ........................................ 7
Martinez v. State, 348 S.W.3d 919
       (Tex. Crim. App. 2011) ........................................ 7
New York v. Harris, 495 U.S. 14
       (1990) ..................................................... 12
Reed v. State, 818 S.W.2d 569
       (Tex. App.-Beaumont 1991, pet. ref'd) ........................ 12
Reeves v. State, 969 S.W.2d 471
       (Tex. App.- Waco 1998, pet. ref'd) ............................ 12
Roy v. State, 608 S.W.2d 645
       (Tex. Crim. App. 1980) ....................................... 12
State v. Garcia-Cantu, 253 S.W.3d 236
       (Tex. Crim. App. 2008) ........................................ 7
State v. Molegraaf, 86 S.W.3d 311
       (Tex. App.-Austin 2002, no pet.) ....................... 12, 13, 14
Watson v. State, 10 S.W.3d 782
       (Tex. App.-Austin 2000, no pet.) ............................. 12

Other Source
40 GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE 321, § 7.25
     (3rd ed. 2011) ............................................... 13




                                    IV
                          STATEMENT OF THE CASE

      The defense appeals a pre-trial suppression ruling in a DWI case.

Black was charged by information with operating a motor vehicle with a

blood-alcohol concentration greater than .15, a Class A misdemeanor

alleged to have been committed on October 11, 2013. CR 9; TEX. PENAL

CODE§ 49.04(a), (d) (West. Supp. 2014). On January 13, 2015, after an

evidentiary hearing, the trial court overruled her supplemental

suppression motion. CR 35. That same day, Black entered a negotiated plea

of no contest, and was sentenced to eight days in jail and a $100.00 fine.

CR 37-38,40-41.

      Black gave notice of appeal ten days later, on January 23rd. CR 43.

                             ISSUES PRESENTED

      Black litigated only the initial detention's lawfulness, which occurred

after Black drove her car through a barricaded traffic-control checkpoint

and onto a street that was closed to the general public at the time. Was the

stop unlawful-and the ruling denying suppression relief therefore an

abuse of the court's discretion- because
                                      1
      (1) Black could not have driven "around" a barricade when the

barricades did not completely block the lane;

      (2) the prosecution failed to prove that the barricades were put there

by a person or entity named in the statutory definition of "barricade"; and

      (3) the signs advising of the road's closure may not have been

"sufficiently legible" and may not have complied with the Texas Manual

on Uniform Traffic Control Devices (MUTCD)?

                                BACKGROUND

      Barton Springs Road in Austin was closed to through traffic early

that October morning; only people affiliated with the Austin City Limits

music festival were allowed to pass through the checkpoint. 2 RR 7, 9, 25.

A mobile sign with flashing lights advised that "northbound" was shut

down to through traffic. 2 RR 6-7. A fixed sign that spanned almost half

the roadway also advised that "Barton Springs Road to close through

Zilker Park. Friday 12 a.m. until Monday 3 a.m." 2 RR 7, 22. White plastic

barricades, barrels, and traffic cones were set up to funnel traffic to a single

lane, and to direct the general motoring public into aU-turn. 2 RR 6, 8.
                                       2
      Austin police Officer Domingo Rodriguez was parked behind the

barricades with his overhead lights on so that he could check the

credentials of vehicles coming through. 2 RR 8. Unauthorized vehicles

were instructed to make the U-turn; authorized buses, motor coaches, and

eighteen-wheelers that were connected with the music festival in Zilker

Park were allowed through. 2 RR 5-6, 9.

      Around three o'clock in the morning on Friday, Officer Rodriguez

saw a passenger vehicle approaching so rapidly that he knew it would not

stop at the checkpoint. 2 RR 9. He yelled, "Hey!" 2 RR 13. The dark-colored

SUV kept going. Rodriguez took off after it and detained the driver, who

he later identified as Black. 2 RR 10-11.

      Black told Rodriguez that she had seen the barricade but was trying

to get home. 2 RR 12; 3 RR State's Exhibit #2 @ 03:00:30. She also admitted

that she should have stopped when she heard Rodriguez call out to her. 3

RR State's Exhibit #1 at 03:05:20.




                                      3
      The trial court denied suppression relief, stating,

      I truly believe, with the amount of signage out there, and with
      the police presence, two patrol cars, and that sign, that a
      reasonable person would know better than to approach that
      intersection and drive through. I just- I cannot think of how it
      could be reasonable to think that you could drive through that
      area. I mean, they've got the barricades here and - ... [A]
      reasonable person would not drive through that intersection. I
      just don't see it. Sorry.

2 RR 36. The trial court was not asked to make and did not make written

findings.

                        SUMMARY OF THE ARGUMENT


      Black is asking the Court to view the evidence in the light most

favorable to the defense, and to speculate that the barricades and signs

failed to meet certain requirements. This misapplies the standard of review

and fails to view the record in the proper light. Properly viewed, the record

shows that Black saw the signs, knew that she was not permitted to simply

drive through the checkpoint, but did it anyway, even after hearing the

officer yell as she went past. This shows that she committed two specific

traffic violations under the Transportation Code.

                                       4
      Whether the signs and barricades were properly in place is

unpreserved, because Black never made this argument below.

Furthermore, the statutory definition of "barricade" and the Manual on

Uniform Traffic Control Devices

•      are not "laws" whose alleged violation would trigger application of
      the exclusionary rule; and

•     do not confer standing on Black to complain of some perceived
      impropriety.

                                 ARGUMENT


      Reply Point: The trial court did not abuse its discretion in
      overruling Black's motion to suppress the State's evidence.

1.    Black's contentions on appeal.

      Black contends that the initial detention was illegal for chiefly two

reasons. First, she maintains that, because the record shows that no

barricade actually blocked her lane of travel, she did not drive "around" a

barricade and therefore could not have committed a traffic violation under

the statute criminalizing driving into barricaded areas. TEX. TRANSP. CODE

§ 472.022(b) (West 2013).

                                       5
      Second, she contends that the State failed to prove that the barrier

constituted a "barricade" under§ 472.022(e)(l) of the Transportation Code.

This provision defines a barricade as an obstruction that has been placed

on or across a road, street, or highway by the Texas Department of

Transportation, a state political subdivision, or a contractor or

subcontractor (Black's Brief, p. 12).

      Third, Black acknowledges the rule that the Court may affirm on any

applicable theory that the record supports, such as Transportation Code§

544.004, which criminalizes the failure to obey a traffic-control device. She

nevertheless contends that the prosecution failed to prove that she

committed a violation under§ 544.004 because it did not show "whether

the sign was in a position where Appellant or a reasonable person would

have seen it" or otherwise complied with the requirements of the Manual

on Uniform Traffic Control Devices (MUTCD). According to Black, the

failure to obey a traffic-control device is only an offense if the device is

"sufficiently legible" to the driver. If the device doesn't comply with the



                                        6
MUTCD, she contends, then it cannot be inferred that the driver

understood the device and committed an offense.

2.    Properly viewed, the totality of the circumstances shows that the
      detaining officer had reasonable suspicion of criminal activity.

      Black's contentions misapply the standard of review and fail to view

the record in the proper light. Appellate courts review suppression rulings

for an abuse of discretion. Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim.

App. 2011 ). The Court views the evidence in the light most favorable to the

trial court's ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.

App. 2008). The winning side is afforded the "strongest legitimate view of

the evidence," as well as all reasonable inferences that can be derived from

it. Garcia-Cantu, 253 S.W.3d at 241. The reviewing court will affirm if the

record reasonably supports the trial court's ruling and it is correct on any

legal theory applicable to the case. Id. A trial court abuses its discretion

only when the ruling is outside the zone of reasonable disagreement.

Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).




                                        7
      The trial court acted well within its discretion to deny suppression

relief. The record shows that Black knew of the traffic checkpoint but consciously

disregarded it. Black ignores the parts of the officer's testimony and the

dashcam video that show that she knew that she was not to simply drive

through the traffic-control point. 2 RR 12; 3 RR State's Exhibit #2@ 03:00:30

and 03:05:20? State's Exhibit #2, the detaining officer's dash cam recording,


shows the signage in plain view. 3 RR State's Exhibit #2@ 02:59:09. It

shows Black telling the detaining officer that she went through the traffic-

control area checkpoint because she was "trying to get home." 3 RR State's

Exhibit #2 @03.00:30. The detaining officer testified to this, as well. 2 RR 12.

The videotape also shows Black telling the officer that she heard him yell

as she went through the barricade, and knew she should have stopped.

3 RR State's Exhibit #2 @03:05:20. This evidence alone shows that the

detention was lawful because she (1) failed to comply with a traffic-control




       Although the prosecution intended to introduce only a portion of the
videotape of the stop, the entire exhibit was admitted at defense counsel's
insistence. 2 RR 12; 3 RR State's Exhibit #2.
                                         8
device under Transportation Code§ 544.004(a), and (2) disobeyed the

instructions, signals, warnings, or markings of a warning sign under §

472.022(a). TEX. TRANSP. CODE§§ 472.022(a), 544.004(a) (West 2013 & 2011).

      Additionally, signs told motorists that they were not to simply drive

through the checkpoint. 2 RR 7, 19, 22. Barricades and traffic cones were set

up to indicate "that people need to go this way to make the U-turn." 2 RR

6. Behind the barricades was a police officer's patrol car with its overhead

lights on. 2 RR 8. Viewing the totality of the circumstances in the light most

favorable to the ruling, the trial court properly concluded that the

detaining officer had reasonable suspicion to initiate a brief detention for

further investigation. Derichsweiler v. State, 348 S.W.3d 905, 914 (Tex. Crim.

App. 2011).




                                       9
3.    Whether or not the barricades and signs were properly placed is
      not a legitimate issue.

      3.1.   The matter of the signs' and barricades' propriety is
             unpreserved.

      Black failed to preserve her contentions about the propriety of the

barricades and signs, because she did not make these arguments to the trial

court. TEX. R. APP. P. 33.l(a)(l).

      Even if she had made the arguments, the trial court would have erred

to grant suppression relief on that basis, for the following reasons.

      3.2.   The evidence shows that Black knew of the checkpoint but
             consciously disregarded it.

      The County Attorney discusses this evidence on page eight of this

brief. Because of this evidence, no legitimate issue exists with respect to

whether Black knew that she was not permitted to drive through the

traffic-control point before she was detained.




                                      10
      3.3.   The barricades' and signs' alleged failure to comply with a
             statutory definition and the MUTCD is unrelated to the
             exclusionary rule's purpose and therefore cannot trigger its
             application.

      Black appears to suggest for the first time that the State's evidence

was obtained "in violation of state law" under Article 38.23, because the

signs and barricades did not comply with the MUTCD and certain

requirements, such as the statutory definition of "barricade," which

requires that barricades be placed by certain entities or agents. Under the

Texas exclusionary rule, no evidence obtained by an officer in violation of

state law may be used in the trial of a criminal case. TEX. CODE CRIM. P. art.

38.23(a) (West 2005). But a violation of the "laws" that Black cites-even if

it had occurred- would not trigger the exclusionary rule's application.

      Violation of just any "law" does not invoke Article 38.23. Carroll v.

State, 911 S.W.2d 210,221 (Tex. App.-Austin 1995, no pet.). Courts

uniformly hold that Article 38.23(a) may not be invoked for statutory

violations unrelated to the exclusionary statute's purpose. State v.




                                      11
Molegraaf 86 S.W.3d 311,312-13 (Tex. App.-Austin 2002, no pet.).Z That

purpose is the same for both the Fourth Amendment's exclusionary rule

and Article 38.23: to protect a suspect's liberty interests against the

                                                                            3
overzealousness of others in obtaining evidence to use against her; "to

                                                                                4
deter unlawful actions which violate the rights of criminal suspects. "

       [T]he fairest reading of [Article 38.23(a)] is that it must have
       been intended to permit challenges to evidence on the basis
       that the evidence was obtained in violation of a "law" that
       serves to protect an individual's personal and property rights


   2
        See also Roy v. State, 608 S.W.2d 645, 651-52 (Tex. Crim. App. 1980); Watson
v. State, 10 S.W.3d 782, 784 (Tex. App.-Austin 2000, no pet.); Reeves v. State, 969
S.W.2d 471,486 (Tex. App.-Waco 1998, pet. ref'd); Lane v. State, 951 S.W.2d 242,
244 (Tex. App.-Austin 1997, no pet.); Carroll, 911 S.W.2d at 211; Fisher v. State,
839 S.W.2d 463,469 (Tex. App.-Dallas 1992, no pet.); Lopez v. State, 817 S.W.2d
150, 151 (Tex. App.- El Paso 1991, no pet.). See also New York v. Harris, 495 U.S.
14, 17 (1990) (the Fourth Amendment's exclusionary rule may not be invoked for
reasons unrelated to the exclusionary rule's purpose).

       Chavez v. State, 9 S.W.3d 817, 822 (Tex. Crim. App. 2000).
  4
       Watson, 10 S.W.3d at 784; Carroll, 911 S.W.2d at 221.

       Texas courts have often stated that the primary purpose of Article 38.23 is
to deter police activity that could not have been reasonably believed to be lawful
by officers engaging in the activity. Watson, 10 S.W.3d at 784 (citing Drago v. State,
553 S.W.2d 375, 378 (Tex. Crim. App. 1977)); Jimenez v. State, 838 S.W.2d 661, 665
(Tex. App.-Houston [1st Dist.] 1992, no pet.); Curry v. State, 831 S.W.2d 485, 487
(Tex. App.-Houston [14th Dist.] 1992, pet. ref'd); Reed v. State, 818 S.W.2d 569,
571 (Tex. App.- Beaumont 1991, pet. ref' d).
                                          12
      from infringement by others, whether those others are acting in
      official capacities or not. "Laws" serving other functions, then,
      would not be a sufficient predicate on which to base an article
      38.23 objection to prosecution evidence.

40 GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE 321, § 7.25 (3rd

ed. 2011); see also Chavez, 9 S.W.3d at 822 (Price, J., concurring); Carroll, 911

S.W.2d at 221 ("It seems evident that the particular provision of the

Constitution or laws which is violated in obtaining evidence must exist for

the purpose of regulating the acquisition of evidence to be used in a

criminal case.").

      The statutory definition of "barricade" and the MUTCD have

purposes so far removed from controlling the gathering of evidence for

prosecution that their violation-even if it had occurred-cannot trigger

Article 38.23. Molegraaf, 86 S.W.3d at 312. In Molegraaf, this Court reversed

the suppression order, holding that Transportation Code§ 542.203(a),

which regulates how and by whom traffic-control devices may be erected,

has nothing to do with the exclusionary rule's purpose. Id. at 313.




                                        13
      3.4.    Black has no standing to complain of the barricades' and
             signs' placement.

      Similarly, the reasoning of this Court's Molegraaf opinion shows that

the statutory definition of "barricade" and the MUTCD were not intended

to confer rights or benefits on the public at large, or on persons who are the

subject of criminal investigations. See Molegraaf 86 S.W.3d at 312. Black

therefore lacks third-party standing to complain of some irregularity in the

barricades' and the signs' placement. Id.

                                   PRAYER

      On behalf of the State of Texas, the Travis County Attorney asks the

Court to overrule the point of error and affirm the judgment of conviction

for operating a motor vehicle while intoxicated.

                                    Respectfully submitted,

                                    DAVID A. ESCAMILLA
                                    TRAVIS COUNTY ATTORNEY




                                      14
                                             ton
                                   As sta Travis County Attorney
                                         ar Number 10018000

                                   Austin, Texas 78767
                                   Telephone: (512)854-9415
                                   TCAppellate@traviscountytx.gov

                                   ATTORNEYS FOR THE STATE OF TEXAS

                       CERTIFICATE OF COMPLIANCE


      Relying on Corel WordPerfect's word-count function, I certify that

this document complies with the word-count limitations of TEX. R. APP. P.

9.4. The document (counting all of its parts) contains 3167 words.




                                     15
                           CERTIFICATE OF SERVICE


      I certify that I have sent a complete and legible copy of this State's

Brief via electronic transmission, to Ms. Black's attorney of record, Mr.

Gene Anthes, at gene©GBAfirm.com, on or before July 7, 2015.




                                                 ton
                                              t Travis County Attorney




                                      16
