                                                                   U1-1b-UU140-.r.;
                                                         FIRST COURT OF APPE,
                                                                HOUSTON, TEX
                                                               3/11/2015 4:10:51 F
                                                               CHRISTOPHER PF
                                                                             CLEF

          NO. 01-15-00140-CR


                                                  FILED IN
                 IN THE                      st
                                            1 COURT OF APPEALS
                                                HOUSTON, TX
         COURT OF APPEALS                       MAR 11, 2015
                                            CHRISTOPHER A. PRINE,
                                                   CLERK
                FOR THE

 FIRST JUDICIAL DISTRICT OF TEXAS

          HOUSTON, TEXAS


BRAYAN JOSUE OLIVA-ARITA, Appellant

                   v.
    THE STATE OF TEXAS, Appellee


On Appeal from the County Court at Law #1
         Galveston County, Texas
    Trial Court Case No. MD-0342858


       BRIEF FOR APPELLANT


                        Salvador Faus
                        Torres and Faus Law Filin
                        1009 44th Street
                        Galveston, Texas 77550
                        (409) 763-2978
                        (409) 763-3424 (fax)
                        salfaus@gma.il.com
                        SBN: 00785854
                        ATtORNEY FOR APPELLANT
                 STATEMENT REGARDING ORAL ARGUMENT

       The Appellant waives oral argument.



                     IDENTITY OF PARTIES AND COUNSEL

Parties and counsel in this case are as follows:

   I. BRAYAN JOSUE OLIVA-ARITA, appellant, represented at trial by Salvador

      Faus, 1009 44th Street, Galveston, Texas 77550 and represented on appeal by

      Salvador Faus, I 009 44th Street, Galveston, Texas 77550.



   2. The State of Texas, appellee, represented at trial by Lindsay Ricbatds1

      Assistant District Attorney, and on appeal by Rebecca Klaren, Criminal

      District Attorney for Galveston County, Texas, 600 59th Street, Galveston,

      Texas 77551.




                                           i
                            CITATION TO THE RECORD



Clerk's Record       .......................................... C.R. (page)



Reporter's Record .......................................... R.R. (page)




                                             ii
                                           TABLE OF CONTENTS




Index of Authorities ........................................................................ ..      iv-v

S1:a.tement of the Case······························~···········~········.................           1
Issues Presented. ...........•...........•......•...................•...•...•..•.........•...... -.   1-2

St:a.tement ofFaru ·····························-:··················· . ·······............. ...      2-4
Summary of Argument for Issue Number One..........................                                    5

Argument in Support of Appellant's Issue Number One...................                                5-7

Summary of Argument for Issue Number Two..........................                                    7

Argument in Support of Appellant's Issue Number Two................                                   8-11

Conclusion and Pra.yer ................................................................. ..           11

Certificate of Service········:·················································-:···········         14




                                                          iii
                                                          INDEX OF AUTHORITIES

CASES                                                                                                                                                                                                                  PAGE

Contraras v. State, 309 S. W.3d 168

(Tex.App.- Amarillo 2010, pet. ref' d) .....•...........................                                                                                                                                               6, 10

Crawford v.d§tate, 355 S.W.3d 193

(Tex.App.-Houston [1st Dist.] 2011, pet. ref' d) .......................... .                                                                                                                                          9

Davis v. State, 947 S.W.2d 240,287 (Tex.Crim.App. 2008) ..... .                                                                                                                                                        5

Fordv. State, 158 S.W.3d 488,492 (Tex. Crim. App. 2005) ........... ..                                                                                                                                                 8

Gonzalez-Gilando v. State, 306 S.W.3d 893

(Tex.App.-Amarillo 2010, pet. ref' d) ................................... .                                                                                                                                            6, 10

Johnson y. State, 2012 WL 698894(Tex. App.Houston [ t4tl:t Dist.]

Nos. 14-10-00941-CR, 14-10-00942-CR, March 6, 2012) (Unpublished)... 6

Klare v. State, 76 S.W.3d 68, 72 (Tex.App.Houston [141h Dist.]

2002, pet:. ·ref d) •. ••I   I   I   1 I   I. I   I   I   I   I   I   I   I- •   •   •   •   •.• I   •   •   •   I   I   It I   I   I   I   II I   I   I   I I I. I I   •   •   •   •   •   •   •   'I I   I   I   I   s
State y, Sheppard, 271 S.W.3d 281,287 (Tex.Crim.App. 2008)......                                                                                                                                                       5

Short v. State, 2011 WL 3505611 (Tex. App.Beaumont

No. 09-1 0-00489-CR, August l 0, 20 1 J) (Unpublished). . . . . . . . . . . . . . . . . .                                                                                                                              8~   9

State v. Daniel, 446 S.W.3d 809 (Tex.App.-San Antonio

2014, no pet.) ............................................. !l.............................                                                                                                                           10

                                                                                                             iv
CASES                                                                             PAGE

Tellez v. State, 2011 WL 3925627 (Tex. App. Beaumont No.

09-10•00348-CR, August 24, 2011) (Unpublished) .................... .             9

STATUTES

Texas Transportation Code Section 601.053 (a) (1-7) ................ ..           3

TEX. TRANSP. CODE ANN. §601.061 (Vernon 1999).................. .                 6

CONSTITUTIONS

Fourth Amendment- United States Constitution ....................... .            2

Article l §9 of the Texas Constitution ...................................... .   2




                                              v
                                NO. 01·15·0014()-CR

TO THE HONORABLE COURT OF APPEALS:

       CO:MES NOW, BRAYAN JOSUE OLIVA-ARITA, hereinafter referred to as

"Appellant,'' and submits this brief pursuant to the provisions of the Texas Rules of

APPella:te Procedure and would respectfully show as follows:



                           STATEMENT OF THE CASE

      Appellant was charged by information and complaint with the offense of

Driving While Intoxicated (C.R. 7, 8)

      On December 29, 2014, a hearing on a motion to suppress was held which was

denied. (R..R. 1,39). On January 2, 2015, Appellant pleaded Nolo Contendere to the

charge and a plea bargain was reached where appellanfs punishment was assessed at

three (3) days County Jail and a $500.00 fine. (C.R., 53-54). The trial court certified

Appellant's right to appeal the denial ofthe motion to suppress. (C.R. 52).



                               ISSUES PRESENTED

      The trial court abused its discretion in denying appellant's motion to suppress

the evidence as follows:




                                          1
                1) The State of Texas failed to prove that the insurance database is a

                  reliable informant in providing police officers with information

                  regarding whether a vehicle has insurance; and

             2) A notice of "unconfmned" insurance, with no other specific

                  information, is insufficient to establish reasonable suspicion or

                  probable cause for search and seizure under the 4th Amendment of

                  the United States Constitution and Article 1 §9 of the Texas

                  Constitution.

                                  STATEMENT OF FACTS

      Appellant was charged by infonnation and complaint for the offense of

Driving While Intoxicated alleged to have been committed on February 16, 2014

(C.R., 2, 3).     Appellant filed a Motion to Suppress any and all evidence of

intoxication based on the illegality of the initial traffic stop for unconfirmed

insurance. The State of Texas stipulated that this case involves a warrantless arrest.

(R.R. 5). Therefore, the burden is on the State to prove a legal basis for the stop of

Appellant. Officer Jose Lobo, with the Friendswood Police Department, was on

patrol on the night of February 16. 2014 when he performed a routine license plate

check on a silver two-door Honda. (R.R. 7) Officer Lobo testified that the license

plate check showed Appellant's vehicle to have unconfmned insuta:nce. (R.R. 8, 13)

                                           2
Officer Lobo testified that this "typically" means that the vehicle has no insurance.

(R.R. 8)~ Officer Lobo testified that the appellant advised that he had no insurance

because he recently purchased the vehicle (R.R. 11, 12, 13).       At that point, Officer

Lobo conducted a Driving While Intoxicated investigation (R.R 13). The DWI

investigation culminated in Appellant's arrest for Driving While Intoxicated.

       Officer Lobo testified that he does not know who administers the insurance

database. (RR. 14, 15) He does not know for what legislative purpose the insurance

database was established. (RR. 15) Officer Lobo does not know the rate of false

positive information the insurance database generates; wherein the database relays

information to a patro] officer that the subject vehicle has unconfirmed insurance,

when in fact the vehicle is insured. (R.R. 16) Officer Lobo acknowledged that the

inso.rance database is not always accurate. (R.R. 20) Officer Lobo estimated from

his personal experience that the database revealing unconfirmed insurance was

correct around 75 percent ofthe time. (R.R. 16, 17)

       Officer Lobo testified he is not aware how long it takes the database to update

a recent purchase of insurance. (R.R. 17, 22) Officer Lobo testified that he was not

aware of the legal alternative means of obtaining motor vehicle insurance pursuant to

Texas Transportation Code Section 601.053 (a) (1-7), such as a surety bond

certificate, certificate of deposit with the comptro11er, certificate of deposit with the

                                           3
appropriate county judge, or a certificate of self-insurance. (R.R. 18-20) Officer

Lobo testified he does not know if these alternative means of establishing motor

vehicle insurance are input into the insurance database. (R.R. 19)

      Officer Lobo testified that the when he checks a vehicle for insurance he

receives one of three responses: I. Confirmed; 2. Unconfinned with accompanying

information such as when the insurance expired, who was the insurance provider, and

whether it has been expired more than 45 days; or 3. Unconfirmed. (R.R. 21, 22)

      After hearing the evidence and argument the trial court denied     Appellant~ s


Motion to Suppress.




                                          4
            SUMMARY OF AR~UMENT FOR ISSUE NUMBER ONE

   I.       THE TRIAL COURT ABUSED ITS DISCRETION                      IN DENYING
            APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE.

        Appellant pleaded nolo contendere to Driving While Intoxicated. The judge

assessed appellant's punishment at assessed at three (3) days County Jail and a

$500.00 fine. (C.R., 53-54) The trial court erred in denying appellant's motion to

suppress the initial traffic stop of the appellant on the basis of unconfirmed insurance

because there is no proof of the operating history and reliability of the insurance

database.

  ARGUMENT IN SUPPORT OF APPELLANT'S ISSUE NUMBER ON~

        Law enforcement personnel may briefly detain and investigate a person

whey they have a reasonable suspicion that the person in involved in crimina]

activity. State v. Sheppard, 271 S.W.3d 281, 287 (Tex.Crim.App. 2008). The

officer must be able to point to something that would 1ead a reasonable person to

believe that the person, being detained was engaged in, had engaged in, or was

about to engage in a criminal act.             Klare v. State, 16 S.W.3d 68, 72

(Tex.App.Houston [14th Dist.] 2002, pet. rerd).         Those articulable facts must

amount to more than a mete hunch or suspicion. /)gvis v._State, 94 7 S. W.2d 240,

287 (Tex.Crim.App. 2008).

                                           5
      In the instant case, Officer Lobo stopped Appellant's vehicle on the basis

that a check of his license plate through the insurance database came back

unconfirmed. Drivers are required to maintain proof of financial responsibility to

lawfully drive on public roads.      See TEX. TRANSP. CODE ANN. §60l.061

(Vernon 1999).      Ofc. Lobo, based solely on his personal experience, testified that

the insurance database is correct around 75% ofthe time. (R.R. 16, 17) Therefore,

based on Officer Lobo's personal experience the database is incorrect around 25%

of the time.     Officer Lobo's testimony reveals he knows very little of the inner

workings of the insurance database.        In the case of Johnson v: State, 2012 WL

698894(Tex. App.Houston [14th Dist.] Nos. 14-10-00941-CR, 14-10-00942-CR,

March 6, 2012) (Unpublished), although decided on other grounds; reveals another

instance where a police officer received a false positive on infonnation regarding

unconfirmed insurance.

      The State did not present any evidence developing the source of the

information comprising the database, illustrating the accuracy of the       databa~e,


establishing the timeliness of the information within the database, depicting how

often those using the database were told that insurance was unconfmned,            or
proving that the program through which the database was accessed was even

operating at the time.     Ganzafez..Gilando v. State, 306 S.W.3d 893 (Tex.App.-
Amarillo 2010, pet. ref' d). Other than Officer Lobo's anecdotal evidence, the State

did not present any evidence demonstrating the reasonableness of police reliance

on the information in the insurance database, also known as the Financial

Responsibility Verification Program.             Contraras v. State, 309 S.W.3d 168

(Tex.App.- Amarillo 2010, pet. refd).

        Without the State presenting evidence that the insurance database is credible

and reliable, the insurance database is the equivalent of an anonymous informant,

which, without corroborating information, cannot be the sole basis of an

investigative detention. Therefore, the trial court abused its' discretion in denying

appellant's motion to suppress.

               SUMMARY OF ARGIJN(ENT FOR ISSVE NUMBER TWO

   2.      THE 1RIAL COURT ABUSED ITS DISCRETION IN DENYING

           APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE.

        The trial court erred in denying appellant's motion to suppress the initial traffic

stop of the appellant on the basis of a response from the insurance database of

"unconfirmed" insurance, without any accompanying corroborating information.

This response does not provide sufficient specific, articulable facts to suppon

reasonable suspicion or probable cause for an investigative detention.




                                             7
  ARGUMENT IN SUPPORT OF APPELLANT'S ISSUE NUMBER TWO

      A response of ''unconfirtned" insurance alone is not sufficient to create

reasonable suspicion to justify the investigative detention of Appellant.     A police

officer conducts a lawful temporary detention when he has reasonable suspicion to

believe that an individual is violating the law. Ford v. State, I 58 S. W.3d 488, 492

(Tex. Crim. App. 2005). It is uncontroverted that Officer Lobo based his stop of

Appellant's vehicle upon a response of unconfirmed insurance from the insurance

database.

      Officer Lobo's testimony reveals that he receives three possible responses

when checking a vehicle for insurance:        1. Confinned; 2. Unconfirmed with

accompanying information such as when the insurance expired, who was the

insurance provider, and whether it has been expired more than 45 days; or 3.

Unconfirmed. (R.R. 21, 22) Similarly, in Short v. State, 20I I WL 3505611 (Tex.

App. Beaumont       No. 09-1 0-00489-CR, August 10, 2011) (Unpublished), the

officer in that case testified that these three responses are common from the

insurance database. In contrast to this case, the arresting officer in the Short case,

received information that Mr. Short was driving a vehicle that showed insura.rtce

coverage was ''unconfirmed for 45 days or more and      expired.·~   IQ. The arresting

officer further testified that a report of unconfittned with no information listed

                                          8
"typically mean_s that Department of Insurance is unable to confirm one way or the

other, and they don't have any information to support that finding." Id.        The

arresting officer in Short further testified that he does not stop a vehicle whose

return states unconfirmed with no information listed.     Similarly, in Crawford y.

State, 355 S.W.3d 193 (Tex.App.-Houston [lstDist.] 2011, pet. ref'd), this Court of

Appeals found that when the respon_se from the insurance database yields specific

information, such as the last insurance company, the policy number, and that the

policy had expired more than 45 days before, that this is sufficient, specific,

articulable information to justify reasonable suspicion and a subsequent

investigative detention. Id at 197, 198. Lastly, Tellez v. State, 2011 WL 3925627

(Tex. App. Beaumont No. 09-1 0-00348-CR, August 24, 2011) (Unpublished) also

supports a stop when a check of a vehicle through the insurance database reveals

unconfmned insurance with accompanying information to show that the insurance

was expired.

      In contrast, to the specific articulable information seen in the Short,

Crawford, and Tellez cases, in this case, the only evidence Officer Lobo received is

that the insurance was unconfirmed on Appellant's vehicle, with no accompanying

information.   A response of unconfirmed insurance, with nothing more, is not

sufficiently specific, articulable information to support reasonable suspicion to

                                         9
             justify an investigative detention.

                          In State v. Daniel, 446 S.W.3d 809 (Tex.App.-San Antonio 2014, no pet.),

             the sole basis of the stop was based on a database response that the insurance was

             unconfirmed. Id at 814. The San Antonio appellate Court in State v. Daniel found

             that this response alone is not sufficiently detailed and reliable evidence to support

             reasonable suspicion. Id at 815.

                          Similarly, a response from the insurance database that the information

             regarding         a   vehicle's    insurance is "not available"      or the   status was

             "undocumented" is not sufficient to prove that the stop was based on either

             reasonable suspicion or probable cause.            Gonzalez~Gikmdo   v. State, 306 S. W.3d

             893 (Tex.App.-Amarillo 201 0, pet. rer d); Contraras v. $_tate, 309 S. W.3d 168

             (Tex.App.- Amarillo 2010, pet. ref'd).

                          The distinction in the case law precedent is very clear: A response from the

             insurance database of unconfirmed accompanied with specific information

             corroborating the response, supports reasonable suspicion.           A response from the

             insurance database of unconfirmed with nothing more, as in the case at hand, is not

             enough to support reasonable suspicion or probable cause to stop and detain.

                          A response from the insurance database that insurance on a vehicle is

             "unconfirmed,n with no other accompanying information is not sufficiently

                                                           10




----'-------'~   --   -   ~-   ---   -~-       - - - -----   ---~     -------        -------~
detailed and reliable evidence to support reasonable .suspicion. After all, every

citizen in the United States is walking around unconfirmed, that we may or may

not have an arrest warrant, until the government stops you to confll111 your identity.

To justify the intrusion ofthe State upon an individual's liberty solely on the basis

of a vague, nebulous response from an unproven computer database is to venture

into a dangerous world.        The trial Court abused its' discretion in denying

appellant's motion to suppress by fmding that a response of "unconfirmed"

insurance a1one, with no specific infonnation accompanying the response, is

sufficient articulable and specific facts to justify reasonable suspicion to stop and

detain.

                           CONCLUSION AND PRAYER

      WHEREFORE PREMISES CONSIDERED, Appellant respectfully asks that

the judgment of the trial court be reversed and that a judgment of acquittal be entered

and for such other and further relief to which Appellant may be justly entitled.




                                          11
                                                ~~?
                                                SALVADORFAUS
                                                TORRES and FAUS LAW FIRM
                                                1009 44th Street
                                                Galveston, Texas 77550
                                                (409) 763-2978
                                                (409) 763-3424 (fax)
                                                salfaus@gmail.com
                                                SBN: 00785854
                                                Attorney for Appellant

                         CERTiFICATE OF COMPLIANCE

       I certifY that the foregoing brief was prepared in Microsoft Word using 14

point font for text, and that the brief contains 2,064 words.


                                                ~~~
                                                Salvador Fall!)

                            CERTiFICATE OF SERYICE

      I hereby certify that a true and correct copy of Brief for Appellant was hand-

delivered to Ms. Rebecca Klaren, Assistant District Attorney of Galveston County,

Texas, 600 591h Street, Galveston, Texas 77551 and hand-delivered and/or mailed to

Appellant in compliance with the Texas Rules of Appellate Procedure on this the

11th day of March, 2015.



                                                Salvador Faus

                                           12
