                                                                                     ACCEPTED
                                                                                 05-15-00974-CR
                                                                      FIFTH COURT OF APPEALS
                                                                                 DALLAS, TEXAS
                                                                           12/15/2015 5:54:38 PM
                                                                                      LISA MATZ
                                                                                          CLERK

                  IN THE COURT OF APPEALS FOR THE
             FIFTH COURT OF APPEALS DISTRICT OF TEXAS
                                                             FILED IN
                                                      5th COURT OF APPEALS
MCCLAIN EDWARD                   §                         DALLAS, TEXAS
   GLICKMAN,                     §                    12/15/2015 5:54:38 PM
   APPELLANT                     §                           LISA MATZ
                                                               Clerk
                                 §
                                 §
V.                               §     NO.      05-15-00974-CR
                                 §
                                 §
THE STATE OF TEXAS,              §
    APPELLEE                     §

    APPEALED FROM CAUSE NUMBER 002-87813-2014 IN THE COUNTY
COURT AT LAW NUMBER 2 OF COLLIN COUNTY, TEXAS; THE HONORABLE
BARNETT WALKER, JUDGE PRESIDING.

                               §§§

                     APPELLANT'S REPLY BRIEF

                               §§§

                              JERRY DEAN KELLY
                              Attorney At Law
                              4131 N. Central Expressway, Suite 110
                              Dallas, Texas 75204
                              State Bar No. 11221500
                              jerryd_kelly@yahoo.com

                              MICHAEL R. CASILLAS,
                              Attorney At Law
The privilege of presenting   351 S. Riverfront Blvd
oral argument is hereby       Dallas, Texas 75207-4399
respectfully requested.       (214) 748-5200/ FAX (214) 748-5202
                              State Bar No. 03967500
                              michael@londonlawdfw.com
                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

SUMMARY OF THE CASE/
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF APPELLANT'S REPLY ARGUMENTS . . . . . . . . . . . . . . . . . . 3

THE CERTAIN MATTERS IN
APPELLEE’S BRIEF TO BE ADDRESSED . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

             I. APPELLEE HAS CHARACTERIZED APPELLANT’S
             VERSION OF THE FACTS AND A PORTION OF
             APPELLANT’S ARGUMENT IN A MISTAKEN MANNER                                     .......... 4

            II. APPELLEE’S CLAIM TO THE EFFECT THAT
            APPELLANT’S ARGUMENT HAS WHOLLY IGNORED
            A CASE THAT CONSTITUTES BINDING PRECEDENT IS
            REFUTED BY THE SUBSTANTIVE CONTENT OF
            APPELLANT’S OPENING BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

            III. APPELLEE’S CLAIMS REGARDING THE EVIDENCE
            ARE REFUTED BY THE STATE’S OWN EVIDENCE AND
            WOULD REQUIRE THIS COURT TO DO AN ACT IT HAS
            BEEN ADMONISHED AGAINST – TURN A BLIND EYE TO
            WHAT THE STATE’S OWN EVIDENCE SHOWS . . . . . . . . . . . . . . . . . 7

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE AND COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . 11




                                                      i
                         Identity of Parties and Counsel

Appellant:
                  McClain Edward Glickman

Represented by:
                  The Honorable Jerry D. Kelly, Attorney At Law
                  4131 N. Central Expressway, Suite 110
                  Dallas, Texas 75204

                  The Honorable Michael R. Casillas, Attorney At Law
                  351 S. Riverfront Blvd.
                  Dallas, Texas 75207

Appellee:
                  The State of Texas

Represented by:
                  The Honorable Greg Willis
                  District Attorney of Collin County
                  2100 Bloomdale Road, Suite 100
                  McKinney, Texas 75071

                  The Honorable John Rolater
                  Chief Appellate Prosecutor
                  Collin County District Attorney’s Office
                  2100 Bloomdale Road, Suite 100
                  McKinney, Texas 75071




                                        ii
                                     TABLE OF AUTHORITIES

CASES                                                                                                       PAGES

Carmouche v. State, 10 S.W.3d
     323 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9

Ford v. State, 158 S.W.3d
      488 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,9

Lothrop v. State, 372 S.W.3d
      187 (Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,7

Vinson v. State, 252 S.W.3d 336
      (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9




STATUTES, CODES, CONSTITUTIONS, AND RULES

Tex. R. App. P. 4.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. R. App. P. 38.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. R. App. P. 38.6(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. Transp. Code §545.058(a)(1)-(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex. Transp. Code §545.058(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                          iii
TO THE HONORABLE COURT OF APPEALS:

         The instant Appellant’s Reply Brief is submitted on behalf of McClain Glickman

(hereinafter Appellant), in regard to the trial court’s having erroneously denied the

suppression motion that had been filed by and on the behalf of Appellant.

               SUMMARY OF THE CASE/STATEMENT OF FACTS

         Based on the content of the Appellant’s Opening Brief, this Court is well aware

of the historical facts and procedural posture of this case. Accordingly, Appellant will

not repeat those matters in the instant Appellant’s Reply Brief, but instead directs this

Court to the discussion of those matters that is contained in the Appellant’s Opening

Brief.

         The State, as Appellee, filed a response brief on December 4, 2015, as well as

an extension motion. On December 7, 2015, this Court issued an order by which the

State’s Response Brief was ordered filed December 7, 2015.

         Based on the claims in the State’s Response Brief, this Court is well aware of

the State’s responses to the contentions contained in Appellant’s Opening Brief.

Appellant, however, wishes to address certain matters raised in the State’s Response

Brief.

         As per the literal text of the applicable rule of appellate procedure, Appellant

files the instant Appellant’s Reply Brief in an effort to address certain matters in the

                                             1
State’s Response Brief. See Tex. R. App. P. 38.3. According to Tex. R. App. P.

38.6(c), an appellant must file any reply brief within twenty (20) days of the filing of

the appellee’s brief.   As noted earlier, the State’s Response Brief was filed on

December 4, 2015, but was ordered filed by this Court on December 7, 2014. As

calculated in accordance with the applicable rule of appellate procedure, the twentieth

(20 th) day after December 4, 2015 would be December 24, 2015, but the twentieth

(20 th ) day after December 7, 2015 would be December 27, 2015, which is a Sunday.

See Tex. R. App. P. 4.1(a). As per the language of the relevant rules of the Texas

Rules of Appellate Procedure (and based on how this Court’s order resulted in the

State’s Response Brief being filed on December 7, 2015), the instant Appellant’s

Reply Brief is timely so long as it is filed no later than Monday, December 28, 2015.

See Tex. R. App. P. 4.1(a); Tex. R. App. P. 38.6(c).




                                           2
          SUMMARY OF APPELLANT’S REPLY ARGUMENTS

      Appellee has characterized Appellant’s version of the facts and a portion of

Appellant’s argument in a mistaken manner that Appellant feels compelled to correct.

      Additionally, Appellee’s claim to the effect that Appellant’s argument has

ignored a case that constitutes binding precedent (and upon which Appellant has

actually relied) is refuted by the substantive content of Appellant’s Opening Brief.

      Finally, Appellee’s arguments regarding the evidence are refuted by the State’s

own evidence and would require this Court to do an act it has been admonished

against - turn a blind eye to what the State’s own evidence shows.

      For all the aforementioned reasons and the reasons stated in Appellant’s

Opening Brief, Appellant respectfully reiterates that the trial court still erred and

abused its discretion in denying Appellant’s suppression motion.




                                          3
                  THE CERTAIN MATTERS IN APPELLEE’S
                        BRIEF TO BE ADDRESSED

          I. APPELLEE HAS CHARACTERIZED APPELLANT’S
          VERSION OF THE FACTS AND A PORTION OF
          APPELLANT’S ARGUMENT IN A MISTAKEN MANNER .

      Appellee’s Response Brief expressly states, “Appellant also alleges that he

moved over, as required by law, because he saw Officer Rangel’s police lights.”

(State’s Brief at p. 7). As such, Appellee has argued that it is Appellant’s argument

that Appellant was required to move over and that Officer Rangel’s “police lights” had

been activated. In support of these arguments, Appellee cites “App. Brief, p. 21,”

which Appellant interprets as a reference to page 21 of Appellant’s Opening Brief.

      A review of page 21 of Appellant’s Opening Brief, however, leaves no doubt

that Appellant never argued that he had any duty whatsoever to move over. Moreover,

the entire thrust of Appellant’s overall argument is that Appellant had the legal right

to drive on the improved shoulder – if he so chose to do so – because Officer Rangel’s

police car was clearly gaining on Appellant’s car because Officer Rangel’s car was, to

use the language of Tex. Transp. Code §545.058(a)(5), “traveling faster” than

Appellant’s car. Finally, Appellant’s Opening Brief made the observation that is

troubling how motorists fail to pull over for police cars that are traveling faster, but

never claimed that Officer Rangel’s red and blue police lights had been activated at the


                                           4
time Appellant’s car moved onto the shoulder. In regard to this point, Appellant’s

Opening Brief relied on how State’s Exhibit 2 showed that the headlights of Officer

Rangel’s car were shining towards Appellant and how Appellant would have been able

to perceive therefrom that some type of vehicle was traveling faster from behind him

(which would authorize Appellant under the law to drive on the improved shoulder).

(Appellant’s Opening Brief at pp. 17-22).

      Accordingly, the aforementioned matters raised by Appellee fail to provide any

substantive support for affirming the trial court’s erroneous suppression decision.

          II. APPELLEE’S CLAIM TO THE EFFECT THAT
          APPELLANT’S ARGUMENT HAS WHOLLY IGNORED
          A CASE THAT CONSTITUTES BINDING PRECEDENT IS
          REFUTED BY THE SUBSTANTIVE CONTENT OF
          APPELLANT’S OPENING BRIEF.

      Appellee’s Response Brief expressly states, “Appellant’s argument wholly

ignores the Court of Criminal Appeals’ opinion in Lothrop [v. State, 372 S.W.3d 187

(Tex. Crim. App. 2012)].” (State’s Brief at p. 8). Appellee employs the quoted

rhetoric in an effort to refute Appellant’s claim that the trial court effectively engaged

in improper burden shifting by making a factual finding (and a legal conclusion related

thereto) about why Appellant had driven on the improved shoulder and then relying

on those rulings, when only Appellant’s testimony could have provided any facts in

regard to those matters (and Appellant had no duty to refute anything based on the

                                            5
warrantless nature of the detention). (State’s Brief at p. 8).

      A review of Appellant’s Opening Brief reveals that Lothrop is cited and/or

discussed on a total of 10 different pages (of a brief that contains a total of only 32

pages). As such, the total number of pages of Appellant’s Opening Brief upon which

either citation or discussion of the Lothrop case appears is at least inconsistent with

Appellee’s criticism that Appellant has ignored Lothrop.

      Additionally, the appellate record is undisputed that a critical part of the trial

court’s ultimate decision was a ruling that none of the seven statutory purposes of Tex.

Transp. Code §545.058(a)(1)-(7) had been present. As was stated in Appellant’s

Opening Brief, State’s Exhibit 2 clearly showed that Appellant moved onto the

shoulder while the headlights of Officer Rangel’s “traveling faster”car were shining

towards Appellant’s car. (Appellant’s Opening Brief at pp. 17-29). As was also stated

in Appellant’s Opening Brief, the only person who can establish if the movement onto

the shoulder was originally intended to permit Officer Rangel to pass is Appellant.

(Appellant’s Opening Brief at p. 22). However, under the law cited in Appellant’s

Opening Brief, the warrantless nature of the detention meant that Appellant had no

duty to explain anything and that the trial court violated Lothrop and Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005) by basing a ruling against Appellant on a

matter that only Appellant could establish and that was – as a matter of law –

                                            6
irrelevant. (Appellant’s Opening Brief at pp. 22-23).

      Far from ignoring Lothrop, Appellant has expressly relied on it as binding

precedent which compels the conclusion that the trial court erred by reversing the

burden at the suppression hearing and by concluding that the State’s evidence justified

the warrantless detention to which Appellant was subjected. Accordingly, the matters

raised by Appellee and discussed immediately above herein provide no substantive

support for affirming the trial court’s erroneous suppression decision.

         III. APPELLEE’S CLAIMS REGARDING THE EVIDENCE
         ARE REFUTED BY THE STATE’S OWN EVIDENCE AND
         WOULD REQUIRE THIS COURT TO DO AN ACT IT HAS
         BEEN ADMONISHED AGAINST – TURN A BLIND EYE TO
         WHAT THE STATE’S OWN EVIDENCE SHOWS.

      In regard to Appellant’s arguments about what State’s Exhibit 2 shows,

Appellee’s Response Brief expressly states, “Neither of these contentions have any

factual basis in the record.” (State’s Brief at p. 7). Appellee’s Response Brief,

however, then states that “the video shows that Appellant pulled onto the improved

shoulder for mere seconds before pulling all the way over into the center lane of

traffic.” (State’s Brief at p. 7). Appellee’s Response Brief in no way disputes that

State’s Exhibit 2 shows not only how Officer Rangel’s headlights were shining in the

direction of Appellant’s car, but also that Officer Rangel’s car was “traveling faster”

than Appellant’s car.

                                           7
       Appellant maintains his contentions that the content of State’s Exhibit 2 shows

Appellant’s car moving onto the improved shoulder while Officer Rangel’s car is

closing the distance between the two cars by “traveling faster” than Appellant’s car.

In the case of Carrmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim.App. 2000), the

Texas Court of Criminal Appeals expressly cautioned that appellate courts reviewing

video recorded evidence should not “blind” themselves to the contents of the vide

recordings, especially when such video recorded evidence “belies” the trial court’s

characterization thereof. Carmouche, 10 S.W.3d at 332. Additionally, in the case of

Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008), the Texas Court of

Criminal Appeals noted that reviewing courts “must keenly review the issue” when the

record shows that a trial court’s ruling is based on a determination of historical fact that

could not possibly have been derived from the historical facts actually developed

during the proceedings. Vinson, 252 S.W.3d at 341.

       The content of State’s Exhibit 2 shows Appellant driving onto the improved

shoulder while Officer Rangel is approaching from the rear, such that Appellant’s

conduct was entirely consistent with an initial decision to drive on the shoulder to

permit Officer Rangel to pass. That Appellant may have changed his mind and moved

back over cannot be conscripted to support reasonable suspicion because why

Appellant did what he did is – as a matter of law – irrelevant under the circumstances

                                             8
presented, a warrantless detention that the State has the duty to justify. See Ford, 158

S.W.3d at 492. Since nothing in State’s Exhibit 2 provides relevant grounds for the

conclusion that Appellant’s having driven on the shoulder had not been part of an

initial decision to yield to Officer Rangel’s oncoming car, the trial court’s ultimate

ruling (and rulings made in support thereof) cannot be justified based on the existing

factual record. Finally, this Court would be acting contrary to Carmouche and Vinson

to affirm the trial court’s erroneous suppression ruling when it can only be explained

by the trial court’s having attributed to Appellant a motive that only Appellant could

– but did not as a matter of law have to – dispute.

      Accordingly, the aforementioned matters raised by Appellee fail to provide any

substantive support for affirming the trial court’s erroneous suppression decision.




                                           9
                         CONCLUSION AND PRAYER

      In accord with and based on all the legal authority cited by Appellant in both

Appellant’s Opening Brief and the instant Appellant’s Reply Brief, the trial court

clearly erred and abused its discretion by denying Appellant’s suppression motion

through attributing to Appellant an irrelevant matter about Appellants’ motivation for

driving on the improved shoulder. Since the trial court committed reversible error by

denying Appellant’s suppression motion, Appellant prays that this Court will reverse

the trial court’s erroneous suppression ruling and order that the evidence against

Appellant must be suppressed.

                                   Respectfully submitted,

                                   /s/ Jerry D. Kelly
                                   JERRY D. KELLY
                                   Attorney At Law
                                   Dallas County, Texas




                                   MICHAEL R. CASILLAS, Attorney
                                   At Law
                                   351 S. Riverfront Blvd.
                                   Dallas, Texas 75207
                                   (214) 748-5200/FAX (214) 748-5202
                                   State Bar No. 03967500




                                          10
               CERTIFICATE OF SERVICE AND COMPLIANCE

        I hereby certify that – no later than December 31, 2015 – a true, electronically

formatted copy of the instant Appellant’s Reply Brief has been served on opposing

counsel, the Hon. John Rolater, Assistant District Attorney, Chief Appellate

Prosecutor, and the Hon. Amy Sue Melo Murphy, Assistant District Attorney, 2100

Bloomdale Road, Suite 100, McKinney, TX 75071, by use of the electronic service

function that accompanies the filing of the Appellant’s Reply Brief with this Court

through the electronic filing service provider to which the Appellant subscribes or

through e-mailing said copy directly to the Hon. John Rolater.

        Based on the word-count function of the Word Perfect, word-processing

software with which the instant Appellant’s Reply Brief was drafted, I also hereby

certify that the instant Appellant’s Reply Brief contains 1,788 words.




                                                MICHAEL R. CASILLAS
F:\Defense Attorney Mike Casillas\Direct appeals\REPLY BRFS\05-15-00974-CR-[Glickman]; Appellant's REPLY
Brief-FiNAL.wpd




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