                           PD-1012-15

                             IN THE
                TEXAS COURT OF CRIMINAL APPEALS


KEVIN DEAN DUNN,
Petitioner,

vs.                                      No. ________________________


THE STATE OF TEXAS,
Respondent


********************************************************************
              PETITION FOR DISCRETIONARY REVIEW
********************************************************************


                                         WYDE & ASSOCIATES, LLP
                                         Dan L. Wyde
                                         SBN 22095500
                                         10100 N. Central Expressway,
                                         Suite 590
                                         Dallas, Texas 75231
                                         Tel 214-521-9100
         August 28, 2015                 Fax 214-521-9130
                                         wydelaw@gmail.com

                                         PETITIONER




PETITIONER REQUESTS ORAL ARGUMENT




                                                                        1
Identity of Parties

      The appellant is Kevin Dean Dunn, who is the defendant in the State of

Texas v. Kevin Dean Dunn, Case Number 1298839. Appellee is the State of

Texas. The appellant appeals from the trial court's denial of his motion to suppress

and motion to suppress unlawfully obtained evidence and the trial court's verdict

of guilty and its written judgment.

      Appellant's trial and appellate counsel is:

          1. Hon. Dan L. Wyde
             10100 North Central Expressway, Suite 590
             Dallas, Texas 75231
             Tel.: 214.521.9100
             Fax: 214.521.9130
             Email: wydela w@gmail.com

      Appellee' s trial counsel is:

          1. Hon. Charles A. Boulware
             Hon. Jacob R. Lilly
             Assistant Criminal District Attorneys, Tarrant County, Texas
             Tim Curry Criminal Justice Center, Fifth Floor
             401W. Belknap Street
             Fort Worth, Texas 76196
             Tel.: 817-884-2608

      Appellee' s appellate counsel is:

           1. Hon. Charles M. Mallin
             Assistant Criminal District Attorney, Tarrant County, Texas
             Tim Curry Criminal Justice Center
             401 W. Belknap StreetFort
             Worth, Texas 76196 Tel.:
             817-884-2608

                                                                                       2
Trial Judge Is:

     Judge Jerry Woodlock
     Visiting Judge
     2655 Harris Street
     Gainseville, TX 76240




                             3
                         TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel………………………………………2

Index of Authorities…………………………………………………………..5

Statement Regarding Oral Argument………………………………………....6

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

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

Abbreviations………………………………………………………………….7

Grounds for Review…………………………………………………………...7

Argument………………………………………………………………………8


First Issue: Whether the trial court erroneously denied appellant's Motion to
Suppress Unlawfully Obtained Evidence on the grounds that the officer did not have
reasonable suspicion or probable cause to effectuate a traffic stop on the Appellant.


Second Issue: Whether the trial court erroneously charged the jury regarding the
burden of proof necessary for law enforcement to initiate any encounter or detention
of the appellant while operating a motor vehicle, as set forth in Whren v. United
States, 517 U.S. 806, 116 S.Ct. 1769 (1996).




                                                                                    4
                                Index of Authorities

Statutes
Texas Code of Criminal Procedure 36.14 ………………………………….....p. 14
Texas Code of Criminal Procedure 38.23 ………………………………….…p. 124
Texas Transportation Code §545.060(a) ……………………………… pgs. 12, 13


Cases
Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App.1994); ………….…p. 14
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984); ………….........pgs. 10, 16
Baldez v. State, 386 S.W.3d 324, 326 (Tex. Crim. App. 2012); ………………..p. 15
Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, (1984); ………….…p. 11
Hernandez v. State, 983 S.W.2d 867, 868-869, 871
(Tex.App.-Austin 1998); ……………………………………………… pgs. 11, 12, 13

Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.ed.2d 889 (1968); …………..p. 11
Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000); ……………………p. 15
Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, (1996); ...pgs. 7, 9, 10,14
                                                                               15, 16

Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997); ………………………p. 11


Rules
Texas Rule of Appellate Procedure 66.3 …………………………………………p. 8




                                                                                     5
STATEMENT REGARDING ORAL ARGUMENT

      Oral argument should be granted in this appeal as it will aid the Court in

reviewing the totality of the evidence presented at the suppression hearing, as well as

to resolve the standard for an officer to effectuate the stop of a vehicle for a traffic

offense.



STATEMENT OF THE CASE

      This case concerns a traffic stop based on the transportation code offense of

failure to maintain a single lane. The stop resulted in the appellant’s arrest and

subsequent conviction for the offense of driving while intoxicated. Appellant filed a

pre-trial motion to suppress which was denied by the trial court. Appellant also

submitted the issue of the reasonableness of the stop to the jury. Appellant contends

that the trial court applied the wrong evidentiary standard for a detention based on a

traffic violation, and incorrectly instructed the jury on the legal standard.



STATEMENT OF PROCEDURAL HISTORY

      (1) Date of opinion from Court of Appeals:             May 21, 2015

      (2) Date of Motion for Rehearing:                      June 22, 2015

      (3) Date Motion for Rehearing Disposed:                July 16, 2015




                                                                                      6
ABBREVIATIONS AND REFERENCES

         The required documents and several other key documents from the trial are

attached to this Petition in the Appendix. The pages of the Appendix are numbered

in the lower, right-hand corner for ease of reference and use by the Court. The

Clerk’s Record (CR) is referred to by page number (e.g., CR422). The Reporter’s

Record (RR) is referred to by volume number, then page number (e.g. 3 RR 88-90).



GROUNDS FOR REVIEW

1. Probable Cause vs. Reasonable Suspicion for a Traffic Stop

         The trial court only found that there was reasonable suspicion to believe the

traffic offense occurred. Appellant contends that, pursuant to Whren v. United States,

517 U.S. 806, 116 S.Ct. 1769 (1996), the proper standard is probable cause, not

reasonable suspicion. “The decision to stop an automobile is reasonable where the

police have probable cause to believe a traffic stop occurred.”         Whren at 810.

Appellant contends that an investigative detention can be based on reasonable

suspicion of criminal activity or probable cause of a traffic violation, and that the

correct legal standard for a stop based on failure to maintain a single lane is probable

cause.




                                                                                      7
2. Improper Jury Instruction

      The trial court improperly instructed the jury that the stop of appellant was

reasonable if reasonable suspicion existed to believe a traffic violation had occurred.

The proper instruction would have been that the stop was reasonable if probable

cause existed to believe a traffic violation had occurred.

      The Court of Appeals for the Second District, Fort Worth, Texas denied

appellants appeal and affirmed the trial court’s rulings. Appellant contends that the

Court of Appeals has decided an important question of law that has not been but

should be settled by the Court of Criminal Appeals, or has decided an important

question of law which conflicts with a decision of the Supreme Court of the United

States, and that therefore the Court of Criminal Appeals should grant review of this

petition, pursuant to Texas Rules of Appellate Procedure, Rule 66.3 (b) and (c).



ARGUMENT

        This case is an appeal from a verdict of guilty wherein the appellant was

 accused of Driving While Intoxicated, a Class A Misdemeanor. On August 24,

 2012, the Appellant's vehicle was stopped pursuant to a traffic stop by Officer

 Daniel McLain, a DWI Officer with the Grapevine Police Department, for

 failure to maintain a single lane of travel. RR. Vol. 2, 5-10. Appellant was

 subsequently arrested for driving while intoxicated after the officer

                                                                                          8
detected the smell of alcohol on his breath and slurred speech, and the

appellant refused to perform field sobriety exercises. RR, Ex. Index State

Ex. 1.

         The trial    court erred when it failed to grant appellant's Motion to

Suppress. The trial court further erred when it erroneously charged the jury

regarding the burden of proof necessary for law enforcement to initiate any

encounter or detention of the appellant while operating a motor vehicle for a

traffic offense as opposed to a criminal offense.

         First Issue: Whether the trial court erroneously denied appellant's Motion

to Suppress Unlawfully Obtained Evidence on the grounds that the officer did

not have reasonable suspicion or probable cause to effectuate a traffic stop on the

Appellant.

         Second Issue: Whether the trial court erroneously       charged the jury

regarding the burden of proof necessary for law enforcement to initiate any

encounter or detention of the appellant while operating a motor vehicle, as set

forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996).



         After the Whren decision, it can be said that what has emerged in

practice is a dual standard. The standard requires probable cause to stop for a

traffic violation or reasonable suspicion that the motorist has committed or is
                                                                                      9
committing a crime. If Officer McClain had stopped appellant on the belief that

appellant was driving while intoxicated then the reasonable suspicion standard

would still apply, if and only if his suspicion was "reasonable" ; which means

based on "reason(s)" ; not a hunch someone has ingested an intoxicant, and that

intoxicant has caused the person to not have the normal use of their mental or

physical faculties. It is clear from the facts that Officer McClain believed he

had probable cause to arrest appellant for driving while intoxicated only after he

made contact with appellant and not as he was pulling him over for the traffic

offense. The appellant was harmed by the use of the lower standard. Given the

United States Supreme Court holding in Whren v. United States, the jury should

have been charged as to this higher standard as requested by appellant and it was

error for the trial court to not instruct as such. Failure to instruct the jury as to the

proper burden of proof is fundamental error. Almanza v. State, 686 S.W.2d 157

(Tex.Crim.App. 1984). Error requires this court to reverse the trial court and acquit

the appellant. The trial court further erred by failing to include defense counsel's

requested language change in the court's charge.



Issue One: Whether the trial court erroneously denied appellant's
Motion to Suppress Unlawfully Obtained Evidence on the grounds
that the officer did not have reasonable suspicion or probable cause
to stop Appellant's vehicle.

                                                                                        10
       Appellant contends that this court should remand this issue to the trial

court to make complete findings of fact and conclusions of law such that this

court can review the trial court's application of law to the facts as were

presented at the suppression hearing. Should the court not be so inclined, this

court could and should still find that the trial court erred in denying appellant's

Motion to Suppress as the trial court's findings were not supported by the

record, as more fully set forth below.

       "A police officer can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by articulable

facts that criminal activity may be afoot, even if the officer lacks evidence

rising to the level of 'probable cause."' Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct.

1868 (1968). A warrantless automobile stop is a Fourth Amendment seizure

analogous to a temporary detention, and it must be justified by reasonable

suspicion. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138 (1984);

Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.-Austin 1998, pet. ref d). A

detaining officer must have specific articulable facts which, taken together with

rational inferences from those facts, lead him to conclude that the person

detained is, has been, or soon will be engaged in criminal activity. Woods v.

State, 956 S.W.2d 33, 35 (Tex. Crim.App.1997); Hernandez, 983 S.W.2d at

869.
                                                                                    11
      The State did not meet its burden in proving that appellant's conduct was

suspicious enough to warrant police intrusion at the time the stop was made

and the judge made no findings of the officer's specific, articulable facts

sufficient to establish reasonable suspicion, much less probable cause. See

Appendix, Findings of Fact and Conclusions of Law. Officer McClain, the sole

witness for the State, testified at the suppression hearing that the basis for him

initiating a traffic stop of the Appellant's vehicle was for failure to maintain a

single lane of travel, a traffic offense. Upon further questioning by the State he

added that, at the time of the stop, he also "possibly" had the reasonable belief

that the appellant might be intoxicated. He based this "possible" belief on the

fact that it was 11:00 o'clock at night and the appellant was travelling away

from the bar district. His training and experience led him to the hunch that the

appellant was intoxicated. Even if the State were to argue that the basis of the

suspicion for the stop was that appellant was intoxicated, and not merely that

appellant had violated section 545.060(a) of the Transportation Code, they did

not meet their burden. To apply the officer's hunch to every motorist, then

every motorist who is traveling away from a "bar district" in the 11:00 o'clock

hour, who commits any traffic offense, must be intoxicated, is not only illogical,

but absurd.

                                                                                     12
      The issue in this case is not whether the officer had sufficient articulable

facts to give rise to a reasonable suspicion that appellant was intoxicated, but

whether he had sufficient articulable facts to give rise to probable cause that

appellant had committed a traffic offense. This is supported by Officer

McClain's testimony that he stopped appellant for the traffic offense and not

for the "possible" belief of intoxication.

      Texas Transportation Code Sec. 545.060(a) provides:

      (a) An operator on a roadway divided into two or more clearly marked
      lanes for traffic:

             (1) shall drive as nearly as practical entirely within a single lane;
and

             (2) may not move from the lane unless movement can be made

safely. Under this statute, a violation occurs only when a vehicle fails to stay

within its lane and such movement is not safe or is not made safely.

Hernandez, 983 S.W.2d at 871. In Hernandez, the officer testified that the

vehicle in question failed to maintain a single marked lane and the repeated

lane changes were unsafe because he was concerned about the driver's well-

being. Id. at 868. The State did not meet its burden in showing that the

movement of appellant's vehicle was unsafe and the trial court erred in denying

appellant's Motion to Suppress. The trial court's ruling should be overruled by

this court as it was not sufficiently supported by the credible and believable
                                                                                     13
evidence presented.



Issue Two: Whether the trial court erroneously charged the jury
regarding the burden of proof necessary for law enforcement to initiate
any encounter or detention of the appellant while operating a motor
vehicle, as set forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769
(1996).

      Texas Code of Criminal Procedure 36.14 requires the trial court deliver to

the jury "a written charge distinctly setting forth the law applicable to the

case." Tex. Code. Crim. Proc. Ann. Art. 36.14. When reviewing alleged errors

in a trial court's charge, we must first determine whether error actually exists in

the charge, and, if error does exist, we must determine whether sufficient harm

resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726,

731-732 (Tex.Crim.App.1994) .

      The trial court incorrectly charged the jury regarding the burden of proof

necessary for law enforcement to initiate any encounter or detention of the

appellant while operating a motor vehicle. The trial court erred by denying

appellant's request to include for the jury the definition of the applicable traffic

offense. The appellant argued and made the record pursuant to Code of

Criminal Procedure Article 36.14 that under the facts of the instant case the

proper standard in respect to the 38.23 language was probable cause as opposed

to reasonable suspicion and asked the court to change the language of the
                                                                                       14
charge to so reflect.

     Defense counsel also argued for the trial court to include for the jury the

definition of what constitutes failing to maintain a single lane of traffic so that

the jury could answer the factual question of whether or not appellant left his

lane of traffic and, if so, whether he did so unsafely.

      Officer McClain did not stop appellant because he had a reasonable

suspicion that the appellant was intoxicated. He stopped appellant because he

believed appellant to have committed a traffic offense, namely the failure to

stay within a single lane of traffic. In Whren v. United States, 517 U.S. 806,

116 S.Ct. 1769 (1996), the United States Supreme Court, declared "probable

cause" to be the constitutionally mandated level of suspicion necessary to stop an

automobile for a traffic violation. The Whren court stated:

       "An automobile stop is thus subject to the constitutional imperative that it
       not be "unreasonable" under the circumstances. As a general matter, the
       decision to stop an automobile is reasonable where the police have
       probable cause to believe that a traffic violation has occurred."

Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769 (1996). The Texas

courts have followed this same language in Baldez v. State, 386 S.W.3d 324

(Tex. Crim.      App.    2012)    and    Walter    v.     State,   28   S.W.3d   538

(Tex.Crim.App.2000) where they quoted straight from the Whren decision and

stated, "Generally, a police officer's decision to stop a car is reasonable when

                                                                                       15
the officer has probable cause to believe that a traffic violation has occurred

._Baldez v. State, 386 S.W.3d 324, 326 (Tex. Crim. App. 2012); Walter v. State,

28 S.W.3d 538, 542 (Tex.Crim.App.2000) (citing Whren v. United States, 517

U.S. 806, 810, 116 S.Ct. 1769 (1996)).

       After the Whren decision, it can be said that what has emerged in

practice is a dual standard. The standard requires probable cause to stop for a

traffic violation or reasonable suspicion that the motorist has committed or is

committing a crime. If Officer McClain had stopped appellant on the belief that

appellant was driving while intoxicated then the reasonable suspicion standard

would still apply, if and only if his suspicion was "reasonable"; which means

based on "reason(s)"; not a hunch someone has ingested an intoxicant, and that

intoxicant has caused the person to not have the normal use of their mental or

physical faculties. It is clear from the facts that Officer McClain believed he

had probable cause to arrest appellant for driving while intoxicated only after he

made contact with appellant and not as he was pulling him over for the traffic

offense. The appellant was harmed by the use of the lower standard. Given the

United States Supreme Court holding in Whren v. United States, the jury should

have been charged as to this higher standard as requested by appellant and it was

error for the trial court to not instruct as such. Failure to instruct the jury as to the

proper burden of proof is fundamental error. Almanza v. State, 686 S.W.2d 157
                                                                                        16
 (Tex.Crim.App. 1984). Error requires this court to reverse the trial court and acquit

 the   appellant.

 Conclusion

        The uncontroverted and unchallenged videotape evidence of the incident

 shows that the trial court erroneously denied appellant's two pre-trial motions

 to suppress evidence. Officer McClain had no probable cause to effectuate the

 traffic stop on appellant for the alleged traffic offense of failure to maintain a

 single lane of travel. The State's Exhibit 1 is conclusive proof that no traffic

 offense occurred. Thus, pursuant to 38.23 of the Code of Criminal Procedure the

 trial court erred by not suppressing the evidence obtained as a result of an

 unlawful search.

 Prayer

       Petitioner prays that this Petition be granted;

       That the evidence obtained as a result of the vehicle stop be ordered

suppressed, and the conviction based on the evidence obtained as a result of the

improper vehicle stop should be reversed and judgment of acquittal rendered, or in

the alternative that the case should be remanded to the trial court with the order that

the evidence be suppressed.

       The error in the jury charge for possession cases should be corrected for all

future cases.
                                                                                       17
Petitioner also requests such other and further relief as is just.

                                  Respectfully submitted,

                                   By: /s/Dan L. Wyde
                                         Dan L. Wyde
                                   Texas Bar No. 22095500
                                   10100 North Central Expressway, Suite 590
                                   Dallas, TX 75231
                                   Tel.: (214) 521-9100; Fax: (214) 521-9130
                                   E-mail: wydelaw@gmail.com
                                   Attorney for Kevin Dean Dunn, Petitioner




                                                                           18
                    CERTIFICATE OF COMPLIANCE

      I certify in accordance with Rule 9.4(i)(2)(D) of the Texas Rules of

Appellate Procedure that the number of words in this document is 3,128 as

calculated by the Word Count tool in Microsoft Word.



                                    /S / Dan L. Wyde
                                     Dan L. Wyde
                        CERTIFICATE OF SERVICE

      I certify that on August 11, 2014, a true and correct copy of the above

and foregoing document was served on the District Attorney's Office, Appellate

Division, Tarrant County, by facsimile transmission to 817.884.1672.



                                      /s/ Dan L. Wyde
                                     Server




                                                                            20
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   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             08/24/2015 11:03:35 AM
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   Petition for Discretionary Review
   Filing Type                                             EFile
   Filing Code                                             Petition for Discretionary Review
   Filing Description
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   Status                                                  Rejected
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   Rejection Information
   Rejection Time       Rejection Comment
   Reason
                        Your petition was initially rejected on August 11, 2015; a corrected petition was due
             08/28/2015 ten (10) days later. A corrected petition was due August 21, 2015. You have


https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=70787ee1-5515-4b42-a4de-095f36bd323d[8/28/2015 11:02:37 AM]
Envelope Details

   Other           10:55:11      submitted a corrected petition on August 24, 2015; your petition is untimely.
                   AM            Additionally, the petition for discretionary review does not contain a copy of the court
                                 of appeals opinion [Rule 68.4(j)]. The time to file a corrected petition has past.
   Documents
   Lead Document                          2015-08-11 Petition for Discretionary Review Dunn.pdf                                 [Original]




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