                                                                                    ACCEPTED
                                                                                06-14-00140-cr
                                                                     SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                          3/16/2015 3:12:21 PM
                                                                               DEBBIE AUTREY
                                                                                        CLERK

                                 In the
                       Court of Appeals for the
                 Sixth District of Texas at Texarkana          FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
 Donny Joe Curry,                  §                    3/16/2015 3:12:21 PM
     Appellant                     §                        DEBBIE AUTREY
                                                                Clerk
                                   §
           v.                      §         Nos. 06-14-00140-CR
                                   §              06-14-00141-CR
 The State of Texas,               §              06-14-00142-CR
     Appellee                      §

    Trial Number CR1301628, CR1301627, and CR1301625 in the
            The County Court at Law No. 1 of Hunt County
          The Honorable F. Duncan Thomas, Judge Presiding

                          STATE’S BRIEF

                                       Greg Willis
                                       County Attorney Pro Tem
                                       Hunt County, Texas


Oral argument is requested if          Claire D. Miranda
Appellant also requests argument       Special Prosecutor
                                       2100 Bloomdale Rd., Suite 200
                                       McKinney, TX 75071
                                       (972) 548-4323
                                       FAX (214) 491-4860
                                       State Bar No. 24037121
                                       cmiranda@co.collin.tx.us
                                      Table of Contents

Index of Authorities ................................................................................. iii

Statement Regarding Oral Argument ...................................................... 1

Statement of the Case ...............................................................................1

Statement of Facts..................................................................................... 1

Summary of the State’s Arguments .......................................................... 6

Argument & Authorities ...........................................................................7

Issue One ( Sufficiency of the Evidence; Failure to Identify ) ................7

                 The evidence is sufficient to sustain Appellant's
                 conviction for failure to identify. Appellant was
                 lawfully detained by the police and refused to
                 give his name after the peace officer asked for
                 that information.

I. Standard of Review ...............................................................................7

II. The State proved that Appellant was guilty of Failure to
    Identify. ................................................................................................ 8

        A.       Appellant was lawfully detained ........................................ 8

        B.       Appellant intentionally refused to give his name ............ 10

Issues Two, Three and Four (Punishment outside the applicable
range) .......................................................................................................13

                 Appellant was properly sentanced within the
                 applicable range of punishment.

I. Standard of review .............................................................................. 13



                                                                                                           i
        II. Appellant was sentanced properly within the applicable
            range of punishment on all Class C offenses ........................... 13

Prayer ...................................................................................................... 16

Certificate of Service ............................................................................... 17

Certificate of Compliance ........................................................................ 17




                                                                                                          ii
                                    Index of Authorities

Statutes, Codes, and Rules

Tex. Penal Code

  § 6.03(a) ............................................................................................. 10

  § 38.02(a)............................................................................................. 8

  § 38.02(c)(1) ......................................................................................... 8

  §12.23 ................................................................................................ 13

Tex. R. App. P. 23 ................................................................................ 14

U.S. Const. amend. IV ........................................................................... 8



Cases

Arizona v. Johnson,
 555 U.S. 323 (2009) ............................................................................. 9

Asberry v. State,
 813 S.W.2d 526 (Tex. App.—Dallas, 1991) ....................................... 14

Brooks v. State,
 323 S.W.3d 893 (Tex. Crim. App. 2010) ............................................. 7

Ex parte Rich,
 194 S.W.3d 508 (Tex. Crim. App. 2006) ........................................... 13

Hemphill v. State,
 505 S.W.2d 560 (Tex. Crim. App 1974) ............................................ 10




                                                                                                         iii
Jackson v. Virginia,
 443 U.S. 307 (1979) ............................................................................. 7

Mizell v. State,
 119 S.W.3d 804 (Tex. Crim. App. 2003) ........................................... 13

Montgomery v. State,
 369 S.W.3d 188 (Tex. Crim. App. 2012) ......................................... 7, 8

Navarette v. California,
 134 S.Ct. 1683 (2014) .......................................................................... 9

Overshown v. State,
 329 S.W.3d 201 (Tex. App.—Houston [14th Dist.] 2010) ................... 9

Whren v. United States,
 517 U.S. 806 (1996) ............................................................................. 9




                                                                                                 iv
                Statement Regarding Oral Argument

      The State does not believe oral argument will assist the Court

in resolving the issues in this case. However, if oral argument is

granted to Appellant, the State requests the opportunity to respond.

                          Statement of the Case

Appellant pleaded not guilty before the Court and the Court returned

the following verdicts:

Offense          Cause No.         Class     Verdict    Punishment

Fail to ID       CR13001628        C         Guilty     $250 fine

FMFR             CR1301625         C         Guilty     $250 fine

No Inspection    CR1301627         C         Guilty     $250 fine

                           Statement of Facts

      On August 26, 2013, Officer Samantha Manrique of the

Commerce police department was on routine patrol on Highway 24 in

Commerce, Hunt County, Texas 9 RR 63. At approximately 4:00 pm.,

Officer Manrique observed Appellant’s car swerve to the left, nearly

striking the median and causing an accident, before heading through

an intersection. 9 RR 63. Appellant’s car had a broken taillight and

a homemade paper license plate.        9 RR 63.   Due to these traffic

violations, Officer Manrique signaled for Appellant to pull over by

                                                                       1
activating the overhead lights on her patrol car, and she performed a

traffic stop of Appellant’s car. 9 RR 64.

     When she approached the driver side window, Officer Manrique

noted Appellant also had a handmade registration sticker and

handmade paper inspection sticker that matched his “license plate”.

9 RR 67; 12 RR 39-40.        Officer Manrique asked for Appellant’s

driver’s license. 9 RR 64-65 Appellant stated he had no driver license

and no insurance. 9 RR 64-65 During her detention of Appellant,

Officer Manrique asked Appellant’s name. 9 RR 64-65 Appellant

responded that his first name was “Donny” and stated he did not wish

to give his last name as it was a family name. 9 RR 64-65. Appellant

refused to give any further identifiers. 9 RR 70-71. After speaking

with him further, Appellant handed Officer Manrique paperwork

purporting to explain why he did not need to have a driver license,

insurance, or license plate. 9 RR 66. The paperwork did not provide

any identifying information.     9 RR 70-71.   Appellant told Officer

Manrique he was a sovereign citizen. 9 RR 66. Due to a concern

about sovereign citizens’ proclivity toward violent behavior, Officer

Manrique called her lieutenant for backup. 9 RR 66, 122-123.



                                                                     2
     Officer Manrique had to give dispatch a full description of the

vehicle, as she could not identify the driver from his own statements

or his “license plate”. 9 RR 66 Lieutenant Mike Pehl and Sergeant

Steve Scott arrived on scene as backup. 9 RR 68. Manrique told

Lieutenant Pehl that Appellant identified himself as a sovereign

citizen. 9 RR 125-126. Lieutenant Pehl was aware through training

and experience that sovereign citizens believe in a totally different

form of government that derives from the law of man and the law of

the land, rather than from the constitution.          9 RR 124-125.

Lieutenant Pehl and Sargent Scott, both wearing police identification

on their clothing, approached Appellant’s car and Lieutenant Pehl

asked Appellant to identify himself.   9 RR 127.      Lieutenant Pehl

identified himself as a peace officer to Appellant.    9 RR 128. He

informed Appellant that Appellant had to identify himself to a peace

officer or he was in violation of the law. 9 RR 127-128. Appellant

refused to identify himself but told Lieutenant Pehl he wanted to

show him something. 9 RR 127-129 Appellant then reached into the

top of his briefcase. 9 RR 128-129. Due to his fear about sovereign

citizens’ potential for violent behavior, Lieutenant Pehl drew his



                                                                    3
weapon from his holster and told Appellant to show him his hands. 9

RR 128. Appellant pulled his hands from the briefcase, Lieutenant

Pehl holstered his weapon and grabbed Appellant’s arm to pull

Appellant from the car.    9 RR 128.     Lieutenant Pehl pulled on

Appellant’s arm several times but was not able to pull Appellant from

the car. 9 RR 128-129. Lieutenant Pehl asked Officer Manrique for

her Taser, which Manrique handed to him, and told Appellant he

would tase him if he did not step out of the vehicle.     9 RR 129.

Appellant continued to refuse. 9 RR 129. Lieutenant Pehl then tased

Appellant. 9 RR 129.

     Lieutenant Pehl continued trying to get Appellant out of the

car, this time from the passenger’s side, but Appellant locked his

arms on the steering wheel in resistance. 9 RR 97. Lieutenant Pehl

tased Appellant a second time, this time in his side, to try and get

Appellant compliant and was ultimately successful in pulling

Appellant bodily from the car. Once outside, Appellant continued to

flail about screaming. 9 RR 69-70, 129-130. Lieutenant Pehl held

onto Appellant’s torso area and was able to secure one handcuff. 9

RR 69-70, 129-170. Sergeant Scott had to secure the other handcuff



                                                                    4
on Appellant. 9 RR 69-70. Appellant was placed into custody at that

time. 9 RR 69-70. Lieutenant Pehl located identifying paperwork in

Appellant’s car after the arrest. 9 RR 82.




                                                                  5
               Summary of the State’s Arguments

State’s Reply to Issue One

     The evidence is sufficient to sustain Appellant's conviction for

failure to identify. Appellant intentionally refused to give his name

while he was lawfully detained and after officers requested that

information.

State’s Reply to Issues Two, Three, and Four


     Appellant was sentenced properly          within the range of

punishment for all Class C convictions.




                                                                    6
                       Argument & Authorities

                              Issue One
                   (Sufficiency: Failure to Identify)

           The evidence is sufficient to sustain the
           conviction.


     The evidence is sufficient to sustain Appellant's conviction for

failure to identify. Appellant was lawfully detained by the police and

refused to give his name after Officer Manrique and Lieutenant Pehl

requested that information.


I. Standard of review

     In a sufficiency review, the appellate court views the evidence in

the light most favorable to the prosecution and determines whether

any rational jury could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(plurality & concurring opinions). The jury is the sole judge of the

credibility of the witnesses and the weight to be given to their

testimonies, and the reviewing court must not usurp this role by

substituting its own judgment for that of the jury. Montgomery v.


                                                                        7
State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The duty of the

reviewing court is simply to ensure that the evidence presented

supports the jury’s verdict and that the State has presented a legally

sufficient case of the offense charged. Id. When the reviewing court

is faced with contradicting inferences, the court must presume that

the jury resolved any such conflicts in favor of the verdict, even if not

explicitly stated in the record. Id.

II. The State proved that Appellant was guilty of Failure to
Identify.

      Appellant was convicted of refusing to give his name to a peace

officer while being lawfully detained.      The offense of failure to

identify is defined as follows: “A person commits an offense if he

intentionally refuses to give his name, residence address, or date of

birth to a peace officer who has lawfully arrested the person and

requested the information.” Tex. Penal Code § 38.02(a). An offense

under this section is a Class C misdemeanor.        Tex. Penal Code §

38.02(c)(1).

   A. Appellant was lawfully detained

      The Fourth Amendment of the United States Constitution

protects individuals from unreasonable seizures. U.S. CONST. amend.


                                                                        8
IV. When police officers signal that a driver should stop a moving

vehicle and, in response, the driver actually stops the vehicle, the

driver has been seized under the Fourth Amendment.             See e.g.,

Arizona v. Johnson, 555 U.S. 323, 327 (2009). The seizure continues

for the duration of the traffic stop and terminates when the police tell

the driver he is free to leave. Id. A traffic stop is reasonable when

there is reasonable suspicion to believe a traffic violation has

occurred.   Navarette v. California, 134 S.Ct. 1683, 1687 (2014). A

traffic stop results in a “detention” of all individuals in the vehicle.

Johnson, 555 U.S. at 327.

     Appellant does not argue that the detention was unreasonable,

but merely that there was no detention.         App. Br. 11.     Officer

Manrique observed Appellant commit traffic violations and she

stopped the vehicle he was driving.       9 RR 64.     Because Officer

Manrique had an objectively reasonable basis for making the traffic

stop, Appellant was lawfully detained at the inception of the stop.

See Whren v. United States, 517 U.S. 806, 809-10 (1996); Overshown

v. State, 329 S.W.3d 201, 207 (Tex. App.—Houston [14th Dist.] 2010)

(finding that “lawful detention” in the context of a failure to identify



                                                                       9
case extends to vehicle passengers). Appellant gave his initial refusal

to identify at the beginning of the stop and thus, the stop was not

unreasonably extended. Appellant remained detained while backup

officers arrived and again refused to give his name when questioned

by Lieutenant Pehl.

     There is sufficient evidence to find beyond a reasonable doubt

that Appellant was lawfully detained when he refused to give Officer

Manrique his name.

  B. Appellant intentionally refused to give his name

     “A person acts intentionally, or with intent, with respect to the

nature of his conduct or to a result of his conduct when it is his

conscious objective to engage in the conduct or cause the result.” Tex.

Penal Code §6.03(a). It is well settled that intent is a question of fact

to be determined by the trier of facts from all facts and circumstances

in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App

1974).

     Officer Manrique asked for Appellant’s name when she first

spoke with Appellant after the traffic stop. Appellant gave his first

name only.    Appellant explained he was a sovereign citizen and



                                                                      10
stated he would not give his last name as it was a family name. 9 RR

64-65.   Further, Appellant would not provide the officer with any

identification. Rather, Appellant gave Officer Manrique paperwork

that explained why he was exempt from the laws of the State of

Texas. Appellant further refused to give his name to backup officers

Lieutenant Pehl and Sergeant Scott, even after being informed that

by failing to do so he was in violation of the law. 9 RR 127. During

the course of their interaction with Appellant, Officer Manrique,

Lieutenant Pehl, and Sergeant Scott were never actually able to

ascertain Appellant’s full name.     The officers identified Appellant

only after discovering identifying paperwork in Appellant’s vehicle

post-arrest. 9 RR 82.

       Appellant placed a homemade license plate on his car and made

it impossible for police to identify him. Appellant created fake vehicle

registration tags, further hiding his identity from authorities.

Appellant refused to give a full name to Officer Manrique and refused

to carry identification. Appellant refused to give Lieutenant Pehl and

Sergeant Scott his name when asked during their interaction with

him.     Appellant stated he was a sovereign citizen and carried



                                                                     11
paperwork stating he was not subject to the law.       Appellant was

wholly uncooperative with any state investigation.         Appellant’s

identification as a sovereign citizen and related actions speak to his

purpose in obfuscating his identity and obstructing state laws.

     The totality of the circumstances support the Court’s finding

beyond a reasonable that refusal to give his name was intentional.

This issue should be overruled.




                                                                    12
                   Issues Two, Three and Four
              (Punishment outside the applicable range)


           Appellant was properly sentanced within the
           applicable range of punishment.


I. Standard of review

      A sentence that is outside the maximum or minimum range of

punishment is unauthorized by law and therefore illegal. Mizell v.

State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). A defendant may

obtain relief from an unauthorized sentence on direct appeal.       Id.

Nothing in Texas law prevents a court with jurisdiction over a

criminal case from noticing and correcting an illegal sentence, “no

matter when or how the relief was sought”.      Ex parte Rich, 194

S.W.3d 508, 513 (Tex. Crim. App. 2006).

II.   Appellant   was   properly   sentenced     on   all   Class    C

convictions

      Appellant was convicted of the Class C misdemeanors of Failure

to Identify, Failure to Maintain Financial Responsibility, and No

Inspection. “An individual adjudged guilty of a Class C misdemeanor

shall be punished by a fine not to exceed $500.” Tex. Penal Code



                                                                    13
§12.23. Appellant was sentenced to a $250 fine in each case and

given credit for the fine. 11 RR 7-8. Appellant acknowledges that he

was properly sentenced on the record, but complains that the Court

entered a handwritten sentence for jail time, in error, after the fact.

App. Br. 14.

     The failure of the trial court to properly record what is reflected

in the judgment is an error of a clerical nature. See Asberry v. State,

813 S.W.2d 526, 530 (Tex. App.—Dallas, 1991). Where a judgment

and sentence improperly reflects the findings of the court, the proper

remedy is reformation of the judgment. Id. at 529. Appellate courts

can reform whatever the trial court could have corrected by a

judgment nunc pro tunc where the evidence necessary to correct the

judgment appears in the record and may act sua sponte in doing so.

Id. at 529-530; Tex. R. App. P. 23.   Appellate courts have frequently

reformed judgments to correct improper recitations or omissions

relating to punishment by deleting the finding. Id. at 530.

     As Appellant was properly sentenced but subject to a clerical

error outside the record, Appellant’s issues two, three, and four




                                                                     14
should be remedied by reforming the trial court’s judgment to reflect

the proper punishment assessed by the court.




                                                                   15
                           Prayer

     The State prays that this Court will affirm Appellant’s

conviction and sentence.


                                    Respectfully submitted,


                                Greg Willis
                                County Attorney Pro Tem
                                Hunt County, Texas

                                    /s/ Claire D. Miranda
                                    Claire D. Miranda
                                    Special Prosecutor
                                    Asst. Criminal District Attorney
                                    2100 Bloomdale Rd., Suite 200
                                    McKinney, TX 75071
                                    State Bar No. 24037121
                                    (972) 548-4331
                                    FAX (214) 491-4860
                                    cmiranda@co.collin.tx.us




                                                                16
                        Certificate of Service

     The State has e-served counsel for Appellant, the Honorable

Jason Duff, through the eFileTexas.gov filing system and sent a

courtesy copy by e-mail to jasonaduff@gmail.com on this, the 16th day of

March 2015.

                                 /s/ Claire D. Miranda
                                 Assistant Criminal District Attorney


                     Certificate of Compliance

     This brief complies with the word limitations in Texas Rule of

Appellate Procedure 9.4(i)(2). In reliance on the word count of the

computer program used to prepare this brief, the undersigned attorney

certifies that this brief contains 2,157 words, exclusive of the sections

of the brief exempted by Rule 9.4(i)(1).

                                 /s/ Claire D. Miranda
                                 Assistant Criminal District Attorney




                                                                     17
