                                                                              ACCEPTED
                                                                          06-14-00221-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     5/25/2015 2:59:31 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

                      No.06 -14-00221-CR

                    COURT OF APPEALS                     FILED IN
                                                  6th COURT OF APPEALS
                 SIXTH DISTRICT OF TEXAS            TEXARKANA, TEXAS
                        TEXARKANA                 5/26/2015 9:29:00 AM
                                                      DEBBIE AUTREY
                                                          Clerk

                       Brian Woodard
                              Appellant
                            vs
                       The State of Texas
                               Appellee




________________________________________________________

       APPEAL FROM THE 254TH DISTRICT COURT OF HUNT
                       COUNTY, TEXAS
               RICHARD BEACOM, PRESIDING
__________________________________________________________

                BRIEF OF APPELLANT
__________________________________________________________

Charles E. Perry
State Bar No. 15799700
1101 Main Street
P.O. Box 720
Commerce, Texas 75429
Tel. 903-886-0774
Fax. 903-886-2043
Cell. 940-613-8439
Attorney for Mr. Woodard
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
BRAIN EUGENE WOODARD
BUSTER COLE UNIT, 3801 SILO ROAD ROAD
BONHAM, TEXAS 75418


ATTORNEY FOR APPELLANT

On Appeal:

Charles E. Perry
State Bar of Texas No. 15799700
1101 Main Street
Commerce, Texas 75429


ATTORNEY FOR THE STATE OF TEXAS


G. Calvin Grogan
Assistant District Attorney Hunt County
2500 Lee Street,
Greenville, Texas 75440




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                                 Table of Contents


Identity of parties and counsel……………………….............................................ii
Table of Contents…………………………………………………………………iii
Index of Authorities……………………………………………………………….iv

I.Statement of the Case…………………………………………………………….1

II.Statement Regarding Oral Argument……………………………………………1

III.Issues Presented……………………………………………………………… 1-2

IV.Statement of Facts………………………………………………………………2

V.Summary of the Argument…………………………………...………………3&4

VI.Argument and Authorities………………………………………………………4

1.The trial court committed reversible error in admitting the testimony of officer
Zane Rhone with respect to the stop and search for drugs since there was no
probable cause to stop the Appellant and the automobile the Appellant was driving.
2.The trial court committed reversible error in admitting and considering the
testimony of officer Zane Rhone with respect to the stop and search for drugs after
he finished or should have finished his duties with respect to the traffic citation for
which the Appellant was stopped.




VII. Conclusion and Prayer………………………………………...……………..8

Signature……………………………………………………………………….… 8

Certificate of Service…………………………………………………………...….9




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Index to Authorities

Cases:

Caballas v.United States, 405 U.S. 405(2005)……………………………..….6&7
Delaware v.Prause, 440 U.S. 675 at 686………………………………….………7
Florida v. Royer, 460 U.S. 491, 500 (1983)………………………………………6
Ford v. State, 158 S.W.3d 488(Tex.Crim.App.2005)………………………….….5
Rodriguez v. United States, 575 U.S. ___ (2015)………………………..……4&8
Terry v. Ohio, 392 U.S. 1(1968……………………………………………..……6
United States v. Sharp,470 U.S. 675 at 686……………………………………6&7
United States v. Smith, 799 F.3d 704, 708(11th Cir.1986)……………………..…6
Walters v. State, 247 S.W. 3d 204, 218(Tex. Crim. App. 2007)………………….4



Statutes:

Ohio Revised Code section 4501;4503.19-22;4513.02………………………3&6
Texas Transportation Code section 545. 062…………………………………… 5
      504.945………….…………........................................................................2


United States Constitution
Article IV section 1-Full Faith and Credit Clause………………………..……3&6
Fourth Amendment-Unreasonable Search and Seizure………………………..…8




                                                                                                  iv
I.       STATEMENT OF THE CASE This case involves Brian Eugene Woodard who

         was charged and indicted with the felony offense of possession of a controlled

         substance, namely cocaine, in an amount of 400 grams or more .(CR 8). He was

         tried before the 196th District Court of Hunt County, Texas without a jury

         beginning on October 20, 2014, 2014(See RR, V1-8). He was found guilty and

         sentenced to 40 years in the Institutional Division of the Texas Department of

         Criminal Justice on December 4, 2014. (CR 93-96). At trial, the defense raised and

         completed the requirements for a necessary defense. The trial judge denied this

         request. This appeal follows.

II.      STATEMENT REGARDING ORAL ARGUMENT


         The Appellant does not request Oral Argument.


III.     ISSUES PRESENTED

         The issues presented for review are:

      1. The trial court committed reversible error in admitting the testimony of officer

         Zane Rhone with respect to the stop and search for drugs since there was no

         probable cause to stop the Appellant and the automobile Appellant was driving.

      2. The trial court committed reversible error in admitting and considering the

         testimony of officer Zane Rhone with respect to the stop and search for drugs after



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      he finished or should have finished his duties with respect to the traffic citation for

      which the Appellant was stopped.

IV.   STATEMENT OF THE FACTS

      Officer Zane Rhone was working on I-30 in Greenville, Hunt County, Texas when

      he first observed the Appellants car. (RR, p.11/19-25; p.12/1-25)The Appellant

      was stopped by DPS officer Zane Rhone for following to close and not being able

      to read the name of the State on the license plate (RR p. 12/21-25;p.13/1-4;13/5-

      12. Officer Rhone testified the law prohibits more than half of the name of the state

      from being obscured.(RR p. 13/17-22). Officer Rhone testified that the Appellant

      was following to close to come to a stop to keep from colliding.(RR p.13/23-

      25;p.14/1-2;14/3-25) His testimony placed the Appellant at 40 feet from the car in

      front when it should have been 157 feet.(RR p. 16/1-5). Officer Rhone testified

      later that there was nothing in his official report about stopping the Appellant for

      following to close to the car in front.(RRp.65/22-25;p. 66/1-5; p.66/6-14). Officer

      Rhone testified that while he was on the side of the road he did not observe the

      Appellant following to close or his license plate being obstructed. (RR p.62/7-

      22).Texas Transportation Code sec.504.945. He testified that he started up after the

      Appellant because he was curious as to two clean cars that did not have Texas

      plates.(RR, 63/2-9). He testified that when he pulled on to the road because the car

      was clean this was not probable cause to stop the Appellant(RR.p.79/17-25; 80/1-


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     6).When officer Rhone stopped the Appellant he could smell air freshner and the

     car was clean (RR p.17/16-22;18 p.18/2-5). His testimony was that after the stop

     he could see that the plates were from Ohio (RR. P.16 /15-21. Officer Rhone

     testified that the Appellant said that the license plate bracket came from the dealer

     the way it was.(RR p. 51/5-25; 52/1-5). Appellant grandfather Mack Woodard

     testified that he bought the car in 2013 and that the license plate frame came from

     the dealership where it was installed.(RR. P. 101/ 2-25).

           While talking to the Appellant officer Rhone testified that he was getting his

     warning started.(RR. P. 25/ 11-15). Officer Rhone had testified while talking to the

     Appellant he told the Appellant that he would get a warning but he said at that time

     he had not written the warning.(RR. P.20/15-180).




V.   SUMMARY OF THE ARGUMENT

     A.    The Appellant had the right to proceed down Interstate 30 in Hunt County,

     Texas free from a stop by the Texas Department of Public Safety since the State of

     Texas should recognize Ohio Revised Statutes 4501 et. seq. which allows and does

     not prohibit the type of bracket placed on the vehicle Appellant was driving by the

     dealer and used to secure the Appellants Ohio license plate under Article 4 section




                                                                                             3
      1 of the “full faith and credit clause” of the United States Constitution. The stop of

      the Appellant was unreasonable and unreasonably pretextual.

VI.   B.      Appellant was detained and question beyond the reasonable time it took or

      should have taken to issue a warning ticket for what the Texas Department of

      Public Safety said was a violation of traveling to close to the car in front and an

      obstructed license plate under Texas law and thus any and all contraband as a

      result of the stop and search should have been suppressed. Rodriquez v. United

      States, 575 U.S. ___(2015)



VII. ARGUMENT AND AUTHORITIES


      A.     The standard for review as to whether the trial court erred in admitting or

      denying to admit evidence is a 2007 case styled Walters v. State, 247 S.W. 3d

      204,217(Tex. Crim. App. 2007) where the court laid out the principle that a reversal

      of a case cannot be had from a trial court’s decision to either admit or deny to admit

      evidence unless the trial court decision lies “outside the zone of reasonable

      disagreement”.

      The Appellant was stopped by DPS officer Zane Rhone for following to close and

      not being able to read the name of the state on the license plate(RR p.12/21-25;p.

      13/1-4;13/ 5-12. Officer Rhone testified that the Appellant was following to close to

      keep to come to come to a stop from colliding.(RR p. 13/23-25; p.14/1-2; 14/3-
                                                                                            4
25.His testimony placed the Appellant at 40 feet from the car in front when it

should have been 157 feet(RR p.16/1-5.However officer Raine further testified that

there was nothing in his official report of the incident at bar about the Appellant

following to close to the car in front(RR p.65/ 22-25; p.66/1-5;66/ 6-14). He also

testified that while he was on the side of the road he did not observe the Appellant

following to close or his license plate being obstructed.(RR p. 62/7-22). The state

therefore did not sustain their burden with respect to following to close as probable

cause to stop the Appellant under Texas Transportation Code section 545.062. In

Ford v State, 156, S.W.3d 488 (Tex. Crim. App. 488, 493-494) the court held that

there had to be more than such statements of conclusion in order to justify a stop for

the reason of following to close.

       Officer Raine testified that he started up to follow the Appellant because he

was curious as to two clean cars that did not have Texas plates.(RR p. 63/2-9). The

officer testified further that he pulled upon the road because the car was clean but

this was not probable cause to stop the Appellant (RR p. 79/ 17-25; 80/1-6). The

officer went on to testify that after pulling the Appellant over he could see that the

license plate was OHIO. According to officer Raine the Appellant told him that the

license plate holder plate came the way it was from the dealer.(RRp.51/5-25; 52/1-

5). Appellants grandfather Mack Woodard confirmed this by testifying that the

license plate frame came from the dealer where it was installed.(RRp.101/ 2-25).


                                                                                         5
Under Ohio Revised Statutes sections 4501; 4503.19-22;4513.02 there are no

obstructive plate restrictions on Ohio license plates dealing with holder or frame

and the Ohio law was complied with at the dealership(RR p.51/5-25;52/1-5). When

considering the evidence from Officer Raine as well as the Appellants grandfather

Mack Woodard the Appellants argues that the state of Texas should be obligated to

follow Ohio law under the “full faith and credit clause” of the United States

Constitution. In determining when an investigative stop is unreasonably pretextual,

the proper inquiry is not whether the officer could validly have made the stop but

whether the officer under the same circumstances a reasonable officer would have

made the stop in the absence of an invalid purpose. United States v.Smith, 799 F2d

704, 708( 11th Cir. 1986).When the testimony and reasoning of officer Raine is

considered in its entirety the stop is and was unreasonably pretextual and thus

unreasonable.

B. The court erred in admitting and considering the evidence of the search as well

as the contraband. The stop in the instant case was much like the stop in Terry v.

Ohio, 392 U.S. 1 (1868). In the case at bar we are dealing with the tolerable

duration of a police inquiry in a traffic stop context as determined by the seizure’s

mission—to address the traffic violation that warranted the stop. Caballes v.

United States, 405 U.S. 405 at 407. In United States v. Sharp,470 U.S

675,685(1985); Florida v. Royer, 460 U.S. 491,500(1983).Where the scope of the


                                                                                        6
detention must be carefully tailored to the underlying justification. This is only

because the purpose of the stop may last longer than necessary to effectuate the

purpose. This was not done in the case at bar. Officer Zane Raine of the DPS when

talking to the Appellant told the Appellant he would be getting a warning but had

not yet written out the warning.(RR. P. 20/15-18). Later while talking to the

Appellant officer Raine got the warning started.(RR. P. 11-15). Officer Raine had

ample time to complete the warning but did not do so. The authority for officer

Raine’s seizure of the contraband ended before he searched and seized the

contraband because of his delay in completing the task incident to the issuance of

the traffic warning ticket. The case at bar is similar to where the court said in

United States v. Sharp,470 U.S. 675 at 686 where the court said that the authority

for the seizure ends when the tasks tied to the traffic infraction are—or reasonably

should have been completed. The fact that officer Raine noticed that the car was

clean of smelled of air freshner (RR. P.17/15-22;p.18/ 2-5) does not justified a

prolonged stop time wise. Officer Raine admitted so as he pulled unto the road

when he saw the Appellant’s vechile.(RR. 79/17-25); 80/1-6). The court laid out in

Caballes, 543 U.S. at 408 that beyond determining whether to issue a traffic ticket,

an officer’s mission includes “ordinary inquires incident to the traffic stop. These

were set out in Delaware v. Prause, 440 U.S. 648, 659-660(1979) and included

inquires involving checking driver’s license, determining whether there are


                                                                                       7
outstanding warrants against the driver, and inspecting the automobile’s

registration and proof of insurance.

    In the case at bar all this was done and there was no reason or probable cause

for delay to justify a search and seizure of contraband. For these reasons the

contraband evidence should have been suppressed and not admitted into evidence

and considered by the court under the 4th Amendment to the United States

Constitution as well as the case of Rodriguez v. United States, 575 U. S. ___(2015).

VIII.

Conclusion and Prayer

For the reasons stated in the Appellants Brief the Appellant requests this Court to

REVERSE the conviction and sentence of the defendant Brian Woodard and order

an acquittal or in the alternative remand the case to the trial court for a new trial.

                                              Respectfully submitted,

                                              By:/s/Charles E. Perry
                                              1101 Main Street
                                              Commerce, Texas 75428
                                              State Bar No. 15799700
                                              Tel:903-886-0774
                                              Fax:903-886-2043

         CERTIFICATE OF COMPLIANCE WITH T.R.A.P.9.4(1)(3)

   Relying on Microsoft Word count feature used to create the Reply Brief of the
Appellant, I certify that the number of words contained in this brief is 2303 and the
typeface used is 14 font.



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                           Certificate of Service
I certify on the 25th day of May, 2015, a true and correct copy of the foregoing
was delivered by email and to counsel for the state of Texas, Hunt County District
Attorney’s Office at the Hunt County Courthouse located at 2500 Lee Street in
Greenville, Hunt County, Texas by Charles E. Perry, Counsel for the defendant
Brian Woodard.

                                          /s/ Charles E. Perry




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