                                                                                       ACCEPTED
                                                                                   06-15-00117-CR
                                                                        SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                             10/21/2015 8:12:44 PM
                                                                                  DEBBIE AUTREY
                                                                                            CLERK




                         No. 06-15-00117-CR                       FILED IN
                                                           6th COURT OF APPEALS
                                                             TEXARKANA, TEXAS
                IN   THE SIXTH COURT OF APPEALS            10/22/2015 8:01:00 AM
                        TEXARKANA, TEXAS                        DEBBIE AUTREY
                                                                    Clerk



                      JOSEPH LEO STREHL, IH
                            APPELLANT

                                 VS.


                       THE STATE OF TEXAS
                            APPELLEE


  On Appeal from the 4” Judicial District Court of Rusk County, Texas
                      Cause Number CR15-075
                         Rusk County, Texas
                         Judge J. Clay Gossett


                       APPELLANT’S BRIEF


                                         Jeff Sanders
                                         State Bar No: 24033153
                                         120 S. Broadway, Suite 112
ORAL ARGUMENT REQUESTED                  Tyler, Texas 75702
                                         (903) 593-8040
                                         (903) 595-5532 fax
                                          dsanderslaw@yahoo.com
                                         1'




                                   ATTORNEY FOR APPELLANT
     IDENTITY OF PARTIES AND COUNSEL
Parties to Trial Court’s Judgment:


Appellant is JOSEPH LEO STREHL,       III.
Appellee is The State of Texas.

Names and Addresses of Trial and Appellate Counsel

         1.   JOSEPH LEO STREHL,      III


         Jeff Sanders
         120    Broadway, Suite 112
               S.
         Tyler, Texas 75702

         2.   The   State of Texas

         Michael Jimerson
         Rusk County District Attomey’s Office
         US N. Main St., Suite 302
         Henderson, Texas 75652
                                                                                                     TABLE OF CONTENTS
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         RAGE
Identity of Parties                                  and Counsel                                                                                                     .           .           .           .           .       .           .           .           .           .           .               .       .           .           .           .           .       .       .       .           .           .           .           .       .           .           .           .       .       .       .       .           .           .       .   ii


Table of Contents                                    .       .       .       .           .       .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .       .       .       .           .           .           .           .       .           .           .           .       .       .       .       .           .           .       .       iii


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

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


Issues Presented                             .       .       .       .           .       .           .           .           .           .           .           .           .           .           .           .           .       .           .           .           .           .               .       .           .           .               .       .       .       .       .           .           .           .           .       .           .               .       .       .       .       .           .       .               .   .        3

Statement of the Facts                                                           .           .       .           .           .           .           .           .           .           .               .       .           .           .           .           .           .           .           .           .           .           .           .           .       .       .       .           .           .           .           .       .           .           .           .       .       .       .       .           .           .       .   3

Summary of the Argument                                                                                                  .           .           .           .           .           .           .           .           .           .           .           .       .               .           .           .           .           .           .           .       .       .       .           .           .           .           .       .           .           .           .       .       .       .       .       .               .       .       9

Argument and Authorities                                                                                             .           .           .           .       .           .           .               .           .       .           .           .           .           .           .           .           .           .           .           .           .       .       .       .           .           .           .           .       .           .           .           .       .       .       .       .           .           .       10

Prayer   .   .   .   .   .   .   .   .   .       .       .       .       .           .       .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .       .       .       .           .           .           .           .       .           .           .           .       .       .       .       .           .           .           23

Certiﬁcate of Service                                                    .       .           .           .           .           .           .           .           .           ,           .           .           .       .           .           .           .           .           .               .       .           .           .           .           .       .       .       .           .           .           .           .       .           .           .           .       .       .       .       .           .           .       23

Certiﬁcate of Compliance                                                                                         .           .           .           .       .           .           .               .           .       .           .           .           .           .           .           .           .           .           .           .           .       .       .       .           .           .           .           .       .           .           .           .       .       .       .       .           .           .       23




                                                                                                                                                                                                                     iii
                               INDEX OF AUTHORITIES
CASES                                                                                                                                                                                                                  PAGE
Jackson V. Virginia, 443 U.S. 307, 319 (1979)          .   .   .   .   .   .   .       .       .       .       .           .           .           .           .           .           .           .           .           .                       10

Beck V.    State,   719 S.W.2d 205 (Tex.Crim.App. 1986)                            .       .       .       .       .           .           .           .           .       .               .           .           .           10-11

Carmouche V.        State,   10 S.W.3d 323, 327 (Tex. Crim. App. 2000)                                                                                                         .           .           .                       18-19

Elizalde V. State, 507 S.W.2d 749, 752 (Tex.Crim.App. 1970)                                                                                        .           .           .           .           .           .               .                   ll

Hubert    V. State    312 S.W.3d 554, 559 (Tex. Crim. App. 2010)                                                                               .           .           .           .           .           .           .           .           .   18

Hulit   V. State,   982 S.W.2d 431, 432 (Tex.Crim.App. 1998)                                                   .           .           .           .               .       .           .           .           .               .           .       20

Human V.     State,    749 S.W.2d 832, 838 (Tex.Crim.App. 1988)                                                                    .           .               .       .               .       .               .           .                       11

Littles V. State,     726 S.W.2d 26 (Tex.Cr.App. 1984)                 .   .   .       .       .       .       .           .           .           .           .           .           .           .           .           .                       11

Martinez    V. State,   348 S.W.3d 919, 923 (Tex.Crim.App. 2011)                                                                                   .           .           .           .           .           .           20-21

Maxwell     V. State,   73 S.W.3d 278, 281 (Tex. Crim. App. 2002)                                                                                  .           .           .           .           .           .           .           .           18

Neal v.   State,    256 S.W.3d 264, 281 (Tex. Crim. App. 2008)                                                         .           .           .           .           .           .           .           .           .           .           .   18

Russell   V. State,    717 S.W.2d   7,   9-10 (Tex.Crim.App. 1986)                                                 .           .           .           .           .           .           .           .           .           .           .       20

Sheperd    v. State,   273 S.W.3d 681, 684 (Tex. Crim. App. 2008)                                                                                      .           .           .           .           .           .           .           .       18

State V. Ballard,      987 S.W.2d 889, 891 (Tex. Crim. App. 1999)                                                                              .           .           .           .           .           .           .           .           .   19

State V. Castlebegy,         332 S.W.3d 460, 465 (Tex. Crim. App. 2011)                                                                                                                .           .           .           .           .           19

State V. Iduarte,     268 S.W.3d 544, 548 (Tex. Crim. App. 2008)                                                                           .           .           .           .           .           .           .           .           .20

Valtierra V. State,     310 S.W.3d 442, 447 (Tex. Crim. App. 2010)                                                                                         .           .           .           .           .           .               .           19

                                              iv
Vessels   v. State,    432 S.W.2d 108 (Tex.Crim.App. 1968)   .   .   .   .   .   .   .   .   .   .       .   .           10

Cruz V.   State,   346 S.W.3d 601, 602-603 (Tex.App.—El Paso 2009).                                  .   .       12-13

Grifﬁn    v. State,   866 S.W.2d 754, 756 (Tex.App.—Ty1er 1993, no writ)12,14

Zimmer V.     State,   989 S.W.2d 48, 50-52 (TeX.App.—San Antonio 1998)                                          .   .   .



                                                                                                 12-13, 17
                           STATEMENT OF THE CASE
          The Rusk County District Attorney charged Appellant by Indictment

for the offense    of Driving While Intoxicated Third or More on April               6,   2015.

(CR 6).     Said Indictment arose from Appellant’s arrest on August 25, 2014.

Said Indictment also contained two paragraphs regarding prior Driving

While Intoxicated convictions to give the District Court jurisdiction and one

additional paragraph regarding a prior Driving While Intoxicated conviction

for further   enhancement purposes, (CR 6).

        Parties   announced “Ready” for jury trial and conducted voir dire on

June   15, 2015.   (CR    104). Concerning the jurisdictional      and enhancement

paragraphs, the State, ﬁrst, abandoned the second jurisdictional paragraph in

the Indictment.     The   State then ﬁled a Brooks Notice      where     it   alleged the

previous second jurisdictional paragraph as the enhancement paragraph.

(CR 31-32). On June        16,   2015, Appellant ﬁled (1) a motion to dismiss for

lack of jurisdiction, (2) a motion to quash the Brooks Notice, (3) a motion to

quash the enhancement paragraph (which became the second jurisdictional

paragraph), (4) and a motion to quash the         first jurisdictional   paragraph.       (CR
49-57).    The four motions were      filed   due to incorrect information alleged in

                                                  1
the Indictment and in the Brooks Notice that did not match the information

on the certiﬁed copies of judgments and          sentences. All four motions    were

denied on June 16, 2015.      (CR 58-60,    104).

          After those rulings on June 16, 2015, Appellant entered a plea of Not

Guilty,    and the State proceeded with    its   case-in-chief. Appellant   had also

ﬁled a Motion to Suppress which was carried through trial.           (CR 27). The
Motion to Suppress was denied prior to the          State resting its case-in-chief

(RR 85).

         Appellant timely ﬁled Notice of Appeal on June 18, 2015.           (CR 91).
The Certiﬁcation By      Trial Court to allow this appeal    was ﬁled on June    17,

2015.     (CR 84).   Appellant appeals the judgment and sentence based on two

reasons. First, Appellant’s appeal    is   based on legally insufﬁcient evidence

to prove a jurisdictional prior conviction. Second, the appeal is based         on the

trial   court’s error in denying Appellant’s motion to suppress illegally seized

evidence.
                      ISSUE NUMBER ONE PRESENTED

                  The trial court committed
                                        reversible error when it
       incorrectly admitted into evidence a prior conviction for Driving
       While Intoxicated, speciﬁcally State’s Exhibit Six, for
       jurisdictional purposes.

                      ISSUE NUMBER TWO PRESENTED
             The trial court committed reversible error when it denied
       Appellant’s motion to suppress the traffic stop and detention of
       Appellant by the Henderson police officer.

                         STATEMENT OF THE FACTS
           During the early morning hours of August 25, 2014, Ofﬁcer Josiah

     Lemelin of the Henderson Police Department was on patrol and was

    contacted by dispatch concerning a possible driving while intoxicated

 suspect.   (RR 29). Dispatch advised the ofﬁcer that an individual called the
    police department regarding seeing a         man at a convenience     store   who
 appeared to be intoxicated and who was asking directions to Lowe’s.                (RR
    29).    The   caller advised that the   man later got into and drove a white
    Peterbilt truck with    an unknown license plate number.       (RR 29). The
  caller’s identiﬁcation    was not given to the officer, and the officer did not

   talk to the caller prior to looking for this white Peterbilt.        (RR 29,   54).

Rather, the caller,   who provided his own identiﬁcation information, talked to
a dispatcher who then relayed the information to the         officer.    (RR 29). The

                                             3
ofﬁcer testified that he located a white Peterbilt truck that was weaving

within    its   lane and then    made a wide turn into the Lowe’s parking lot. (RR

29-30).     The    officer later stated that the leﬁ turn   was proper and was not a

wide turn, based on what was seen on video and written in his                   report.   (RR
58).   The      officer   engaged his overhead lights and tried to get the truck to pull

over prior to the truck turning into the Lowe’s parking               lot.   The ofﬁcer later

detained the truck and driver in the Lowe’s parking            lot.     (RR 30).
       At trial, Ofﬁcer Lemelin testified that the reason for the trafﬁc stop

was reasonable suspicion of a DWI. (RR 60). He               stated,     “A concerned

citizen called,     and reasonable suspicion is probable cause as well in the State

of Texas.”       (RR 60-61). The ofﬁcer then confirmed that he did not talk to
the concerned citizen nor did he         know the identity of the concerned citizen at
the time of the trafﬁc stop.        (RR 61). The officer also stated that he didn’t
know if the citizen caller even observed the Appellant operating the truck on

the road.       (RR 62-63). The ofﬁcer further admitted that he did not observe
Appellant commit any trafﬁc violations that would justify pulling Appellant

over to detain him.         (RR 61, 63). As the ofﬁcer tried to explain reasonable
suspicion, probable cause,         and the reason he pulled the truck over, he
summarized that the reason he stopped Appellant was “the safety of the

public.”     (RR 62).

        Upon making contact with the driver, whom the officer identiﬁed in

court as the Appellant, the officer administered standardized ﬁeld sobriety

tests to the Appellant.      Based on Appellant’s performance of the tests,

Appellant was arrested for Driving While Intoxicated. The ofﬁcer then

obtained a warrant to draw blood from Appellant to determine his blood

alcohol concentration.

       The concerned        citizen, Scott    Lake, testiﬁed at trial regarding his

observations on August 25, 2014. Lake testiﬁed that he                  owns a trucking

company and was         at the   Henderson Depot getting          fuel during the early

morning of August 25, 2014. (RR 16-17). He said there was a man inside

the store    who was trying to ﬁnd out what direction he needed to travel

because he was     lost.   (RR    17).    Lake said that the man “had a strong odor,

something similar to       like, I   guess, alcohol.     I   don’t know, just a strong odor.”

(RR   18).   He said he called 911        to tell   what he had seen after watching the

man enter a truck because he was concerned for public safety. (RR 19). He

also stated that he did not observe the truck traveling              down the road and did
not see any traffic violations.          (RR 24).
                                                5
          The   State offered into evidence a recording of Lake’s 911 call.

Appellant objected that the proper predicate was not laid because there was

not a custodian of record to testify regarding the recording.            (RR 20).
Appellant also objected that the 911         call   was hearsay. The court overruled

both objections and admitted the 911 call into evidence.              (RR 20). At no
point during Lake’s testimony did he ever identify Appellant as the                man he
observed in Henderson Depot with a strong odor who then drove a white

Peterbilt truck in the direction    of Lowe’s.

          At the conclusion of the ofﬁcer’s testimony, Appellant urged his

motion to suppress based,       ﬁrst,   on Scott Lake not identifying the Appellant

as the    man with a strong odor who he believed smelled like alcohol.              There

was no evidence       stating that Appellant     was the man about whom Scott Lake

called 911.     Nor was there any evidence that Appellant was the man whom

Scott   Lake    said got into a white Peterbilt     and drove   in the direction   of

Lowe’s. Next, Appellant then urged in his motion to suppress that there was

no evidence of any traffic violation whatsoever. (RR 82-83). The               officer

based his decision to stop the white Peterbilt on what the caller told dispatch.

The ofﬁcer did not know the name of the caller and had not talked to the

caller.   (RR 82-83). The court then denied the motion to suppress. (RR 85).

                                             6
           Later in the   trial,   the State called William     Brown to testify as its
ﬁngerprint expert.          (RR    100).   Brown testiﬁed that he obtained Appellant’s

ﬁngerprints on a ten-print card, which               was admitted as   State’s Exhibit Four.

(RR       102-103).   The   State then used William          Brown as the sponsoring
witness to offer State’s Exhibit Six into evidence. Appellant objected that

the prior conviction marked as Exhibit Six              was not the prior conviction

alleged as a jurisdictional paragraph nor             was    there any evidence, including

ﬁngerprints, connecting Exhibit Six with Appellant.                 (RR   108).   The court

overruled Appellant’s objections.             (RR    108).   As William Brown testiﬁed
about Exhibit Six, the only information on Exhibit Six that had anything to

do with Appellant’s identity was the name. Nothing more. Exhibit Six

contained no ﬁngerprints to connect Appellant with the conviction.                   (RR
109).       William Brown later testiﬁed that, other than the name, he had no

other     way of identifying or connecting Exhibit Six with Appellant. (RR

1 1 0).



          A motion for directed verdict was urged by Appellant because of the
prior convictions being improperly admitted into evidence.                 The motion for

directed verdict      was   denied.    (RR   112).
      In closing argument, Appellant argued that the document admitted

into evidence as State’s Exhibit Six,   which was the 2002 conviction without

any identifying information such as a ﬁngerprint, should not be considered

because   it   wasn’t proven beyond a reasonable doubt that the prior conviction

depicted in Exhibit Six    was a prior conviction of Appellant. (RR   123).
                        SUMMARY OF THE ARGUMENT
         Appellant’s position    is   two-fold. First, the   trial   court erred in

allowing Exhibit Six to be admitted into evidence. The                trial   court did not

have jurisdiction for this case to be prosecuted as a felony because there was

legally insufﬁcient proof that Appellant        was convicted of two prior charges

of Driving While Intoxicated.

         Second, the trial court erred by improperly denying Appellant’s

motion to suppress. The motion to suppress should have been granted

because (1) the ofﬁcer did not observe any violations of the law or any other

acts that     would have given him probable cause of a traffic violation or

reasonable suspicion of a possible        DWI, (2) the civilian caller did not
observe any trafﬁc violations by the driver of the white Peterbilt, and (3) the

civilian   never identiﬁed Appellant as being the man and driver about                whom
he called 911 on the morning of August 25, 2014.

         As   such, with one prior conviction proven at       trial, at   most, Appellant

is   guilty of a Driving   While Intoxicated Second, a Class A misdemeanor.

However, based on the trial court’s        incorrect ruling   on the motion to

suppress, Appellant’s conviction ought to be reversed.
                              ARGUMENT NUMBER ONE
                  The
                    trial court committed reversible error when it
         overruled Appellant’s   objection to the admission of State’s
         Exhibit Six into evidence when said exhibit was legally insufﬁcient
         evidence to connect Appellant with a prior conviction.

         A. Standard of Review

         The standard of review is whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt                    after

considering the evidence in the light most favorable to the prosecution.

Jackson       V. Virginia,   443 U.S. 307, 319 (1979).


         B.    The Law on Relevance and Admissibilig of Prior Convictions
         Texas case law has consistently held that a prior conviction of a

defendant      may be established by certiﬁed copies of a judgment and sentence
as well as authenticated copies of the Texas Department of Criminal Justice

records, including ﬁngerprints, supported            by expert ﬁngerprint testimony

identifying the ﬁngerprints        on the documents as      identical with the

defendant’s      known ﬁngerprints.        Vessels   v. State,   432 S.W.2d 108

(Tex.Crim.App. 1968); Beck v. State, 719 S.W.2d 205 (Tex.Crim.App.

1986).    The use of ﬁngerprints         to prove prior convictions    is   only one

method. Another method            is   the testimony of a witness    who personally

                                               10
knows the defendant, knows of the prior conviction, and identiﬁes the

defendant.         I_d.   at   209-210.      Still   another   way is the stipulation or judicial
admission of the defendant. E.

          Even without fmgerprints, a penitentiary packet with a photo of the

defendant can be sufﬁcient to connect the prior judgment to the defendant on

trial.    Littles V. State,            726 S.W.2d 26 (Tex.Cr.App. 1984). Other personal

information in a penitentiary packet, such as age, height, weight, hair color,

eye color, social security number, or date of birth might also be sufﬁcient to

connect a prior conviction to the defendant.                      Human v. State, 749 S.W.2d
832, 838 (Tex.Crim.App., 1988).

          While the documents might be admissible because they are certiﬁed

copies, they are not normally sufﬁcient                      on their own to prove prior

convictions.        $93 at 210.             The documents themselves         are not sufﬁcient

even     if the   name on the judgement and sentence are the same as the

defendant in trial. Elizalde                v. State,   507 S.W.2d 749, 752 (TeX.Crim.App.

1970).     The     State       still   has to prove by independent evidence that the

defendant     is   the person           who was previously convicted. Beck at 210.




                                                        ll
         The   essential element in proving a defendant’s prior conviction

is   evidence of identity independent of evidence from a penitentiary packet.

Cruz V.   State,   346 S.W.3d 601, 602 (Tex.App.—El Paso 2009); Zimmer                     V.


State,   989 S.W.2d 48, 50 (Tex.App.——San Antonio 1998); Grifﬁn                  v. State


866 S.W.2d 754, 756 (Tex.App.——Tyler 1993, no writ).

         Case law is quite clear that the State must connect the evidence of the

prior conviction with the identity of the defendant            on trial. For example,      in

Cjruz, the State alleged    two prior convictions to enhance          the punishment

range to that of a habitual offender. Cruz         at   602.   The   State offered   one

prior conviction as Exhibit 3 (Cause      Number 1404) and another prior
conviction as Exhibit 5 (Cause       Number 2523) for enhancement purposes.

The judgment in Cause Number 1404 did not have a fingerprint on                  it   but the

other one did.     The   fingerprint expert   compared the defendant’s ﬁngerprints

with the fingerprints of the booking packet associated with the charge that

resulted in the judgement in      Cause Number 1404. However, the booking

packet was never admitted into evidence. The El Paso Court of Appeals,

relying at least in part   on Zimmer,   said:




                                              12
          We do not have evidence showing that the person named in the
          judgment for cause number 1404 is the same as the person in the
          booking packet or who stood trial for this offense. While the identical
          names indicate the person is probably the same, probably is not good
          enough when it is the critical element being used for enhancement.
          Without the booking packet in evidence, there is insufﬁcient evidence
          to link the defendant from the judgment in cause number 1404 to the
          defendant who was on trial in this case. The State failed to meet its
          burden of proving beyond a reasonable doubt the defendant’s prior
          conviction. Cruz at 603.



Similarly, in   Zimmer, the San Antonio Court of Appeals              dealt with an issue

where the     State prosecuted the defendant for felony          DWI but did not have a
ﬁngerprint on the judgement and sentence on one of the two prior

convictions.    The judgment and sentence in Cause Number 530867 did not

have a ﬁngerprint. The ﬁngerprint expert matched the defendant’s known

prints to the prints     on the booking      slip associated   with Cause   Number
530867. The      trial   court sustained defendant’s objection as to the admission

of the booking    slip   but admitted the judgment (without ﬁngerprints) into

evidence.     The ﬁngerprint expert testiﬁed that he could not link the

defendant on trial with the judgment in Cause Number 530867.                     I_d.   at 50. In


fact,   the court said even if the booking slip had been admitted,          it   wasn’t

sufﬁcient to prove       it   was   that defendant   who was previously convicted. E.
at 52.


                                               13
          The San Antonio court stated:

          We are left only with testimony that the ﬁngerprint on the back of a
          booking slip, which is not in evidence, matches that of the defendant,
          and a judgment convicting a person named Patricia Sandifer, who was
          arrested on the same day. What we do not have is anything which
          proves, by independent evidence, that the Patricia Sandifer of the
          judgment ir1 cause no. 530867 is the same person in the booking slip,
          the previous judgment, or the person on trial for felony DWI.
          Because of the coincidence of the name and date, she probably is the
          same person. But probably is not good enough when it is the critical
          element being used for enhancement. I_d. at 52.


          The Tyler Court of Appeals handled a nearly-identical          situation in the

same manner in Grifﬁn v.        State,   866 S.W.2d 754 (Tex.App.—Tyler, 1993).

In that case the defendant      was charged with DWI with two prior convictions.

The     State offered into evidence exhibits three, four,    and ﬁve. Exhibit Three

was defendant’s Department of Public Safety driving record. Exhibits four

and ﬁve were the judgements and sentences of two prior convictions.

Objections to    all   three exhibits were overruled   by the trial   court.   I_d.   at 756.

The Tyler Court of Appeals explained that, except           for the similarity in

names, there was no other evidence to prove that the driving record in

Exhibit Three    was the defendant’s      driving record.   The Court went on to say

that,   while the driving record contains information about the two prior

convictions which correspond with Exhibit Four and Exhibit Five, there                   was

                                            14
still   no evidence proving that it was the defendant on trial who was the same

person named in the three exhibits. In relying on Beck, Elizalde, and

Vessels, the Tyler Court of Appeals stated:

         Even if the name on the judgment or other document               the same as   is
         that of the defendant   on trial,   it is   incumbent on the State to go
         forward and show by other independent evidence that the defendant is
         the same person previously convicted           .Therefore, even if it be
                                                            .   .   .   .   .




         conceded the trial court properly admitted the challenged State’s
         exhibits, standing alone, they are insufﬁcient to prove the prior
         convictions. There is evidence that all three exhibits pertain to the
         same person, but there is insufﬁcient independent evidence that they
         are prior convictions of Appellant. I_d. at 756.



         C. Analysis

         When applying Texas case law to the facts of Appellant’s case, it is
clear that State’s Exhibit Six    was legally insufficient to prove that Appellant

was convicted of DWI       in   Cause Number F35365                     in      Johnson County, Texas,

on February 20, 2002. As previously outlined,                       there are       numerous ways to

sufﬁciently prove the prior conviction of a defendant on                            trial.   The   State can

rely    on the ﬁngerprint comparison to a prior judgment and                           sentence.     The

State can call a witness   who knew the defendant and knew the defendant

was convicted of the prior charge. The             State can rely                on an admission or

judicial confession of the defendant.         Or the    State can rely                on the photograph

                                              15
in a penitentiary packet or other identifying information in the penitentiary

packet as independent evidence to connect the defendant with the prior

conviction.

          In this instance, the Appellee failed to utilize any of those methods to

prove that State’s Exhibit Six was indeed a prior conviction of the Appellant.

When reviewing the testimony of William Brown, the Appellee’s ﬁngerprint
expert,    it is   clear that he did not      do a fingerprint comparison with State’s

Exhibit Six because there          was no ﬁngerprint on Exhibit              Six.   (RR   108).

State’s Exhibit Six did not contain a photograph                      of Appellant, nor did   it



contain other identifying information about Appellant like date of birth or

social security       number. Additionally, there              is   no evidence   in the record that

the State relied      on another witness to testify of his or her knowledge of the

identity    of Appellant and knowledge of Appellant’s prior conviction labeled

as State’s Exhibit Six. In fact, William                   Brown later admitted that,     other than

the name, he had no other way of connecting Exhibit Six with Appellant.

(RR   1   10).


          As in              Q_Iu_z_,   and _G_r_iﬂ_'1n,   this case involves     a certiﬁed copy of

a prior judgment and sentence without any fingerprints on the judgments and

sentences to positively connect to the Appellant. Similarly, there was no

                                                     16
                                                                                ~
witness in this case         who knew Appellant and knew of a 2002 DWI
conviction. Furthermore, there were              no other pieces of identifying




Six
       ~
information to connect Appellant to Exhibit Six. Just like in Zimmer Cruz,

and Griffin the only piece of evidence connecting Appellant with Exhibit

       is   the name.     As those cases    discuss, Appellant having the         same name as

that   which    is   on Exhibit Six probably means he          is   the   same person, but

“probably       is   not good enough when       it is   the critical element being used for

enhancemen           .”
                          Qmmg at 52.
            Because the 2002     DWI conviction marked Exhibit Six is legally
insufficient to prove that Appellant           was convicted of DWI in 2002, the

judgment of conviction of felony DWI third or more ought to be reversed.

Based on the fact there         is   legally sufficient evidence      of only one prior

conviction, at most the judgment should be reformed so that Appellant                        is


convicted of a Class         A misdemeanor and then the case remanded for
sentencing on a Class         A misdemeanor DWI conviction.




                                                 17
                              ARGUMENT NUMBER TWO
                   The trial court committed
                                         reversible error when it denied
         Appellant’s motion to suppress illegally seized evidence, namely,
         Appellant and the motor vehicle he was operating.

         A. Standard of Review

         A trial court’s decision on a motion to suppress is subject to a
bifurcated standard of review. Hubert V. State 312                S.W.3d 554, 559 (Tex.

Crim. App. 2010); Carmouche             V. State,   10 S.W.3d 323, 327(Tex. Crim.

App. 2000).       A trial court’s decision to grant or deny a motion to suppress is
generally reviewed under an abuse of discretion standard. Sheperd V. State,

273 S.W.3d 681, 684 (Tex. Crim. App. 2008). Almost total deference                       is


given to a trial court’s determination of historical            facts, especially if those


determinations turn on witness credibility or demeanor, and review de novo

the   trial   court’s application of the   law to   facts not   based on an evaluation of

credibility     and demeanor. Neal      V. State,   256 S.W.3d 264, 281 (Tex. Crim.

App. 2008).

         When deciding a motion to suppress evidence, a trial court is the
exclusive      trier   of fact and judge of the witnesses’      credibility.   Maxwell    V.


SE, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).                    Accordingly, a trial

court   may choose to believe or disbelieve all or any part of a witness’s
                                              18
testimony. Moreover, if the trial judge                     makes express ﬁndings of fact,       the

evidence          is   viewed in the   light   most favorable to the      trial judge’s   ruling and

determine whether the evidence supports those factual ﬁndings. Valtierra V.

_§_t_21’t_e,   310 S.W.3d 442, 447 (Tex. Crim. App. 2010).                When there is not an
express ﬁnding on an issue, the appellate court infers implicit ﬁndings of

fact that support the trial court’s ruling as long as those                  ﬁndings are

supported by the record.              _S_e§   Q.

               The prevailing party      is   entitled to “the strongest legitimate       View of the

evidence and            all   reasonable inferences that may be drawn          ﬁom that
evidence.” State V. Castleber_ry, 332 S.W.3d 460, 465 (Tex. Crim. App.

2011).         When all evidence is viewed in the light most favorable to the trial
court’s ruling, an appellate court is obligated to uphold the ruling                      on a

motion to suppress              if that ruling     was supported by the record and was correct

under any theory of law applicable to the case. Carmouche 10 S.W.3d                              at


327; State           v. Ballard,   987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

               The   appellate court   is   to review the trial court’s legal conclusions de

novo and uphold the ruling so long as                   it is   supported by the record and

correct under           any legal theory applicable to the          case. State v. Iduarte,   268

S.W.3d 544, 548 (Tex. Crim. App. 2008).

                                                       19
             B.     The Law on Reasonable Suspicion for a Traffic Stop

             Warrantless searches and seizures are per se unreasonable unless they

 fall into      a recognized exception, and the State has the burden of establishing

an exception to the warrant requirement. Russell                      V. State,   717 S.W.2d         9-
                                                                                                7,

 10 (Tex.Crim.App. 1986). The Court of Criminal Appeals said in
                                                                H__uﬁy_.

S_t:1_‘tg   that in   DWI investigatory detentions courts must rely on a totality of
circumstances           test as the   reasonableness standard. 982 S.W.2d 431, 432

(Tex.Crim.App. 1998).

            The     State   must present evidence      to   show that sufﬁcient facts        existed

to prove that reasonable suspicion existed that a person has                      engaged    in or

soon will be engaging in criminal               activity.    Martinez    V. State   348 S.W.3d

919, 923 (Tex.Crim.App. 201               1).   The court    is   to consider the totality of the

circumstances to determine reasonable suspicion which would include the

content of the information and the reliability of the information.                    1_q.    The
ofﬁcer must have speciﬁc, articulable facts that establish reasonable

suspicion and          show (1) unusual activity,       (2) a connection      between defendant

and the unusual          activity,   and (3) that the unusual       activity is related to a

crime.       I_d.   When a 911    caller provides information to a dispatcher but not




                                                  20
 the caller’s identity,     more information is required to be corroborated in order

 to increase the level of reliability.      I_d.    When the caller leaves his identifying
 information with the dispatcher, the degree of reliability improves.                 I_d.


           C. Analysis

          The Appellant’s motion to suppress the trafﬁc               stop, detention,    and

evidence should have been granted for two reasons.                   First, the officer   did not

have reasonable suspicion that the offense of driving while intoxicated was

being committed to justify the         traffic stop.        Second, the concerned citizen

caller    never testified that Appellant was the person he believed was

intoxicated in the Henderson Depot. There                   was no positive identiﬁcation of

Appellant in     trial   in order to establish     any reliability on the part of the caller.

          Regarding the lack of reasonable suspicion, the ofﬁcer did not observe

any trafﬁc violations by the Appellant             in operating the truck.      The oﬁicer

testiﬁed that he solely relied on the information provided to dispatch
                                                                       by
Scott Lake.     The ofﬁcer never talked to Lake prior to the trafﬁc stop

and did not know the identity of Lake              at the   time of the stop.   (RR 61).
The ofﬁcer did not even know the license               plate   number. (RR 29). As such,

it is   Appellant’s position that the ofﬁcer needed            more information to

corroborate the information from dispatch. Since the ofﬁcer did not observe

                                              21
 any traffic    Violations,     he needed more reliable information prior to making

the traffic stop.       The ofﬁcer can’t just say he made the traffic        for “the safety

of the public.” (RR 62).

         The second aspect of the incorrect denial of Appellant’s motion to

suppress concerns Scott Lake’s testimony in trial. At no point did Scott

Lake    identify Appellant as the       man in the Henderson Depot who           smelled of

a strong odor. At no point in his testimony did Scott Lake say that Appellant

was the person he thought might be           intoxicated.   At no point did Scott Lake

testify that    Appellant was the person driving a white Peterbilt. There              is   no

evidence connecting the person Scott Lake thought might be intoxicated

with the Appellant. Using the terms articulated in the Martinez decision,

there   is   no evidence connecting Appellant with any unusual             activity.   As
such, there     is   legally insufﬁcient evidence at trial to prove that the officer

had reasonable suspicion to justify a trafﬁc stop of Appellant. The               State

didn’t ask the right questions and didn’t prove          what   it   needed to prove.

Therefore, the       trial   court committed error   by denying the motion to      suppress.

                                             PRAYER
        WHEREFORE, Appellant prays that the Order of the trial court
denying Appellant’s Motion to Suppress be reversed and that Appellant be

                                             22
 acquitted of this charge. Subject to that, Appellant prays that the
                                                                       trial   court’s

 error in admitting a prior conviction     marked Exhibit Six be reversed and that

 the case be   remanded   for sentencing   on a Class A misdemeanor DWI

 conviction. Appellant also requests such other and further
                                                            relief to    which
 Appellant   may be justly entitled.




                                                  S te Bar No.: 24033153
                                                  120 S. Broadway, Suite 112
                                                  Tyler, Texas 75702
                                                  (903) 593-8040
                                                  (903)595-5532 fax


                        CERTIFICATE OF SERVICE
       I, the undersigned attorney, do hereby
                                              certify a true and correct copy
of the foregoing instrument was served upon the Rusk County
                                                                 District
Attorney’s Ofﬁce by electronic mail and facsimile on this the 215‘
                                                                     day of
October 21, 2015.




                                                              ERS
                    CERTIFICATE OF COMPLIANCE
       Pursuant to Rule 9.4(i)(3), the undersigned attorney certiﬁes that this
brief complies with the length requirements of the Texas
                                                          Rules of Appellate
Procedure in that the brief has 5,718 words.



                                                             ERS
                                       23
