                                                                       ACCEPTED
                                                                  03-14-00806-CR
                                                                          4872883
                                                        THIRD COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                                                            4/14/2015 12:29:44 AM
                                                                 JEFFREY D. KYLE
                                                                            CLERK

       No. 03-14-00806-CR
                                                 FILED IN
                                          3rd COURT OF APPEALS
 IN THE THIRD COURT OF APPEALS                 AUSTIN, TEXAS
        AT AUSTIN, TEXAS                  4/14/2015 12:29:44 AM
                                              JEFFREY D. KYLE
                                                   Clerk

          DELANE DUMAS

                         Defendant – Appellant
                  vs.

       THE STATE OF TEXAS

                         Plaintiff – Appellee


On Appeal from the County Court at Law
  Number Five of Travis County, Texas
Hon. Nancy Wright Hohengarten Presiding
Trial Court Cause No. C-1-CR-13-219171


    APPELLANT’S REPLY BRIEF


                                     Gregory Sherwood
                                                Attorney
                                       P.O. Box 200613
                             Austin, Texas 78720-0613
                                         (512) 484-9029
                           Email: gsherwood@mail.com
                                State Bar No. 18254600

                           Court-Appointed Attorney on
                              Appeal for Delane Dumas
                                           Table of Contents

Table of Contents ............................................................................................ i

Index of Authorities ...................................................................................... ii

Conclusion and Prayer for Relief ................................................................... 4

Certificate of Service ..................................................................................... 5

Certification of Compliance ........................................................................... 5




                                                       i
                                        Index of Authorities

Rules

Tex. R. App. P. 9.4(i)(1) ................................................................................ 5

Tex. R. Evid. 403 ....................................................................................... 2, 3




                                                      ii
                          No. 03-14-00806-CR

                   IN THE THIRD COURT OF APPEALS
                          AT AUSTIN, TEXAS


                              DELANE DUMAS

                                              Defendant – Appellant

                                       vs.

                           THE STATE OF TEXAS

                                              Plaintiff – Appellee


                  On Appeal from the County Court at Law
                    Number Five of Travis County, Texas
                  Hon. Nancy Wright Hohengarten Presiding
                  Trial Court Cause No. C-1-CR-13-219171


                       APPELLANT’S REPLY BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

      NOW COMES DELANE DUMAS, who files Appellant’s Reply

Brief, and respectfully states as follows:

      Footnote 2 at pages 5-6 (pdf 10-11) of the State’s Brief states in part

that appellant’s counsel has mistaken the female voice at the beginning of

State’s Ex. 4 as a second 911 caller when it is actually the voice of a Hays

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County dispatcher transferring a 911 call to the Travis County dispatcher.

This attorney has listened again to State’s Ex. 4, which starts with the male

Travis County 911 operator announcing, “Austin 911, do you need police,

fire or EMS?” and a female voice responding, “Hays County with a transfer

for a reckless driver,” then identifying the vehicle’s location. Appellant’s

counsel now realizes that this voice is a Hays County dispatcher, not a

second 911 caller, and apologizes for the error. Any references in

Appellant’s Brief to a second or female 911 caller should actually be read as

a reference to a Hays County dispatcher. This error does not change the fact,

however, that the jury knew more about Mr. Dumas’ driving than the

arresting officer did that evening, since the officer did not hear the text of the

Hays County dispatcher’s message that the jury heard. Appellant’s Brief at

11 (pdf 19). State’s Ex. 4 should not have been admitted at trial.

      The State argues that Mr. Dumas’ trial counsel did not make a Tex. R.

Evid. 403 objection to State’s Ex. 4 because his statement of “unfair

prejudice” was pertaining to a confrontation objection only, and therefore

this error is unpreserved. State’s Brief at 7-9 (pdf 12-14). Appellant

respectfully disagrees, and contends that trial counsel’s sentence, “I think

there is a very high danger of unfair prejudice, given the fact that these



                                        2
people are going to give just one rendition, without the jury hearing the

whole story[,]” RR vol. 3, p. 59 (pdf 61), l. 3-16, is not limited to a

confrontation objection only, but can also be interpreted as a Rule 403

objection.

      Finally, the State’s Brief argues at pages 21-22 (pdf 26-27) that “the

detaining officer had reasonable suspicion independent of the detailed

information relayed in the 9-1-1 call[,]” because “[Officer] Eberhardt saw

Dumas swerving within his own lane, failing to use a turn signal, and

inexplicably exiting and re-entering the highway late one Saturday night[,]”

citing RR vol. 3, pp. 22-23. Failing to use a turn signal was not a traffic

violation for the reasons stated by the trial court, and discussed at pages 20-

21 (pdf 28-29). The State’s Brief fails to acknowledge this mistake of law

by Officer Eberhardt. As for the argument that appellant “inexplicably

exit[ed] and re-enter[ed] the highway late one Saturday night,” this is easily

explained by a driver taking an exit from the highway too soon, and then re-

entering the highway to take a later exit.

      The traffic stop in this case was extremely weak, as the traffic

violation Officer Eberhardt believed had occurred did not, because a turn

signal was not required when appellant re-entered the highway from the



                                        3
dedicated lane just past the Holly Street exit, and because appellant used his

turn signal to exit the highway at the Holly Street exit. Officer Eberhardt did

not observe appellant driving 90 miles per hour as stated in the 911

transferred call on State’s Ex. 4. The portion of the video showing appellant

driving within one lane, but never crossing that lane into another lane,

cannot be a basis for the stop, for that is not a traffic violation. The traffic

stop was invalid, and the video evidence obtained as a result of the stop – the

field sobriety tests, the search of the vehicle which revealed an almost empty

flask containing drops of liquid smelling like alcohol, and appellant’s

statements after the stop, should not have been presented to the jury.

                        Conclusion and Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, appellant DELANE

DUMAS respectfully prays that this court sustain one or both of the issues

presented, reverse the judgment of conviction and sentence, and remand this

case to the trial court for further proceedings.




                                         4
                                                        Respectfully submitted,

                                                 /s/   Gregory Sherwood
                                                  GREGORY SHERWOOD
                                                                     Attorney
                                                            P.O. Box 200613
                                                  Austin, Texas 78720-0613
                                                              (512) 484-9029
                                                Email: gsherwood@mail.com
                                                     State Bar No. 18254600

                                                Court-Appointed Attorney on
                                                   Appeal for Delane Dumas

                            Certificate of Service

       I hereby certify that a true copy of this document was served on April
14, 2015 by email upon Assistant County Attorney Giselle Horton, Travis
County Attorney’s Office, at the following email address:
giselle.horton@traviscountytx.gov.
                                                 /s/   Gregory Sherwood
                         Certification of Compliance

       According to the WordPerfect program used to create this document,
there are 686 words in this brief, excluding the portions listed in Tex. R.
App. P. 9.4(i)(1).
                                                 /s/   Gregory Sherwood




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