                                                                         ACCEPTED
                                                                     04-14-00814-CR
                                                         FOURTH COURT OF APPEALS
                                                              SAN ANTONIO, TEXAS
                                                                5/11/2015 9:52:26 AM
                                                                      KEITH HOTTLE
                                                                              CLERK


            N0.04-14-00814-CR

                                        FILED IN
                                 4th COURT OF APPEALS
                                  SAN ANTONIO, TEXAS
    IN THE COURT OF APPEALS      5/11/2015 9:52:26 AM
            FOR THE
                                   KEITH E. HOTTLE
FOURTH COURT OF APPEALS DISTRICT         Clerk
              OF TEXAS
         SAN ANTONIO, TEXAS



       JACOB RANDALL SONGER,
              Appellant,

                    v.
            STATE OF TEXAS,
                Appellee

         Trial Court No. 13-272-CR
Appeal from the Kendall County Court at Law
          of Kendall County, Texas


        BRIEF FOR APPELLANT



    ORAL ARGUMENT REQUESTED



                                Submitted by:

                                HAROLD J. DANFORD
                                Danford Law Firm
                                813 Barnett St.
                                Kerrville, TX 78028
                                State Bar No. 00783924
                                (830)257-4045 Office
                                (830)896-5250 Telefax
                                hdanford@ktc.com
                                Attorney for Appellant
                                         TABLE OF CONTENTS



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

Identity of Parties .................................................................................................... ii

Index of Authorities ............................................................................................... iii

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

Statement Regarding Oral Argument ...................................................................... 2

Issues Presented ........................................................................................................ 2

Appellant's Point of Error ................................................................... 2

Statement of Facts ......................................................................... 2,3,4

Appellant's Only Point of Error ................................................ .4,5,6,7,8,9

Conclusion and Prayer ...................................................................... 10

Certificate of Service ........................................................................ 11
            IDENTITY OF THE PARTIES AND COUNSEL




Pursuant to Tex. R. App. P. 38.1(a), the parties to this suit are as follows:



   (1)   Jacob Randall Songer, Appellant, 4911 C Bell Springs Road, Dripping

         Springs, Texas 78620

   (2)   The State of Texas by and through the Kendall County Attorney's Office,

         Donald Allee, Kendall County Attorney, who is Appellee and prosecuted

         this case at trial.



   The appellate attorneys are as follows:



   (1)    Jacob Randall Songer is represented by Harold J. Danford, Danford Law

          Firm, 813 Barnett St, Kerrville, Texas 78028

   (2)    The State is represented by Donald Allee, Kendall County Attorney, 201

          East San Antonio Street, Suite 306, Boerne, Texas 78006-2050.




                                           ii
                                         Index of Authorities

Argullez v. State, 409 S.W. 3d 657, 663-664 (Tex. Crim. App. 2013) ................................. 8

Derichsweiler v. State, 348 S.W. 3d 906, 916 (Tex. Crim. App. 2011) ................................ 5

Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375 (2000) ............................................... 8

Ford v. State, 158 S.W. 3d 488, 492 (Tex. Crim. App. 2005) ........................................... 5

Guzman v. State, 955 S.W. 2d 85, 88-89 (Tex. Crim. App. 1997) ..................................... .4

Martinez v. State, 348 S.W. 3d 919, 923 (Tex. Crim. App. 2011) ...................................... 7

Martinez v. State, 348 S.W. 3d 925 (Tex. Crim. App. 2011) ............................................ 9

Meeks v. State, 653 S.W. 2d 6, 12 (Tex. Crim. App. 1983) .............................................. 5

State v. Sailo, 910 S.W. 2d 184, 188 (Tex. App. Ft. Worth 1995 pet. ref d) .......................... 7

Wade v. State, 422 S.W. 3d 661, 669 (Tex. Crim. App. 2013) .......................................... 5

Wade v. State, 422 S.W. 3d 668 (Tex. Crim. App. 2013) ................................................ 5

U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 1881 (1980) ..................................... 7

U.S. Constitution 4th Amendment ........................................................................ .1,6

U.S. Constitution 5th Amendment ............................................................................ 1

U.S. Constitution 6th Amendment ............................................................................ 1

U.S. Constitution 14th Amendment ...................................................................... .... 1

Texas Constitution Article 1, Section 9 ................................................................... 1,6

Texas Code of Criminal Procedure Article 38.23 ...................................................... 1,6




                                                      iii
                             CAUSE NO. 04-14-00814-CR


JACOB RANDALL SONGER                   §            IN THE COURT OF APPEALS
   Appellant                           §
v.                                     §            FOURTH SUPREME
                                       §            JUDICIAL DISTRICT
                                       §
STATE OF TEXAS                         §
   Appellee                            §            SAN ANTONIO, TEXAS




                            STATEMENT OF CASE

      Appellant Jacob Randall Songer was charged by Complaint and Information

with Driving While Intoxicated 1st Offense which allegedly took place on April 18,

2013 in Kendall County, Texas. On March 21, 2014, Appellant filed a Motion to

Suppress complaining the arresting officer lacked reasonable suspicion to stop

Appellant's vehicle in violation of Appellant's rights under the Fourth, Fifth, Sixth

and Fourteenth Amendments to the United States Constitution, Article 1, Section 9

ofthe Texas Constitution and under Article 38.23 ofthe Texas Code of Criminal

Procedure.

      On April24, 2014, the Motion to Suppress filed by Appellant was heard by

the Trial Court and such Motion was denied. Appellant subsequently plead guilty

to said offense and was granted probation on November 4, 2014. Appellant

contends the Trial Court erred in denying the Motion to Suppress.

      This Appeal then follows.


                                           1
              STATEMENT REGARDING ORAL ARGUMENT



Pursuant to Tex. R. App. P. 39.7, Appellant hereby requests oral argument.



                             ISSUES PRESENTED:



                           Appellant's Point of Error:

      The Trial Court Erred by not granting Appellant's Motion to Suppress.




                           STATEMENT OF FACTS



      The facts presented at the Motion to Suppress show that on April 18, 2013,

that Deputy Escalante of the Kendall County Sheriffs Office was dispatched to a

McDonald's Restaurant at the Love's Truck Stop in Comfort, Texas based on a

911 call whereby someone in the drive-through line allegedly hit the building

(Reporter's Record Vol. 1 p. 7-8).

      Deputy Escalante testified that the Love's Truck Stop in a humongous place

with lots of business and is open 24 hours a day (RR. Vol. 1, p. 20). The 911 tape

was played for the Court and introduced into evidence. The caller from the 911

tape was only identified as someone named Mitch who was told by someone else

                                         2
to call911. (RR. Vol. 1, p. 19). The 911 caller did not witness any ofthe alleged

activity of striking the building. It is interesting to note that the record does not

contain any evidence or testimony as to when this alleged activity of striking the

building took place. Further, the 911 call did not give a description of the vehicle

which allegedly hit the McDonald's building. (RR Vol. 1 p. 9 & 15).

      Deputy Escalante testified that dispatch told him it was a white car that hit

the building. (RR Vol. 1 p. 9). However, under both direct and cross examination,

Deputy Escalante admits the 911 call was silent as to a description of the color of

the car (RR Vol. 1 p. 9 & 20). Through cross examination, it was brought out that

Deputy Escalante put in his report that the vehicle driven by Appellant was not

even white, but in fact was silver. (RR Vol. 1 p. 16).

      Deputy Escalante further testified to other important facts:

              1) When he arrived at the McDonald's he did not observe anything
                 out of the ordinary (RR Vol. 1 p. 11).

             2) There was no damage to the McDonald's Building (RR. Vol1 p.
                11& 19).

              3) The Deputy did not know the how building was hit (RR Vol. 1 P.
                 17).

              4) The Deputy did not know what time the building was hit (RR Vol.
                 1 p. 18).

              5) The Deputy did not know if it was a male or female who hit the
                 building. In fact, he had no description (RR Vol. 1 p. 18).



                                            3
             6)   The Deputy, after reviewing the video in Court, noticed no damage
                  to the building was captured on his video recording (RR Vol.l p. 19).

It is therefore quite clear from the evidence and record in this case that the Trial

Court erred by not granting Appellant's Motion to Suppress. Deputy Escalante had

no reasonable suspicion to stop Appellant's vehicle on Aprill8, 2013.



                   APPELLANT'S ONLY POINT OF ERROR:

      The Trial Court Erred by not granting Appellant's Motion to Suppress.


This case is basically a traffic stop based on a tip relayed to law enforcement in
Kendall County from a 911 call. It is interesting to note that the caller in this case
did not witness any of the activity that alleged to have happened but was told by
someone else to call 911. (RR Vol. 1 p. 19).


      It is well settled law that Appellate Courts should afford almost total

deference to a trial court's determination of the historical facts that the record

supports especially when the trial court's fact findings are based on an evaluation

of credibility and demeanor. The Appellate Courts should also afford the same

amount of deference to a trial court's rulings on application of law to fact

questions, also known as mixed questions of law and fact, if the resolution of those

ultimate questions turns on an evaluation of credibility and demeanor. The

Appellate Courts may review "de novo" mixed questions of law and facts not

falling within this category. See Guzman v. State, 955 S.W. 2d 85, 88-89 (Tex.


                                           4
Crim. App. 1997). Also, the question of whether a certain set of facts gives rise to

reasonable suspicion is reviewed "de novo". See Wade v. State, 422 S.W. 3d 661,

669 (Tex. Crim. App. 2013).


      The sole issue in this case is whether Deputy Escalante based on the 911 call

had reasonable suspicion to stop Appellant's vehicle. To justify a warrantless stop

of Appellant's vehicle, the State was required to prove the officer had reasonable

suspicion that Appellant's vehicle occupant (driver) was violating the law. See

Ford v. State, 158 S.W. 3d 488, 492 (Tex. Crim. App. 2005). Further, an officer

has reasonable suspicion if he has specific, articulable facts that when combined

with rational inferences from those facts would lead him to reasonably conclude

that the person detained is, has been, or soon will be engaged in criminal activity.

See Wade at 668. To support a reasonable suspicion, the articulable facts must

show that some activity out of the ordinary has occurred, some suggestion to

connect the detainee to the unusual activity, and some indication the unusual

activity is related to a crime. See Derichsweiler v. State, 348 S.W. 3d 906, 916

(Tex. Crim. App. 2011) & Meeks v. State, 653 S.W. 2d 6, 12 (Tex. Crim. App.

1983).


         The facts in this case clearly show that when Deputy Escalante arrived on

the scene at McDonald's he observed:


                                           5
             1) Nothing out ofthe ordinary (RR. Vol. 1 p.11).

             2) There was no damage to the McDonald's building (RR. Vol. 1 p.
                11 & 19).

             3) The Deputy noticed !!.Q. criminal activity by Appellant nor did he
                see Appellant committing any traffic violations prior to stopping
                Appellant's vehicle (RR Vol. 1 p. 19).

The facts in this case are clear and the aforementioned law is clear that Deputy

Escalante had no reasonable suspicion to stop Appellant's vehicle. The Fourth

Amendment to the United States Constitution and Article 1, Section 9 of the Texas

Constitution provide that "The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and seizures shall not be

violated. Any evidence obtained by an officer or other person in violation of any

provisions of The Constitution or laws of The State of Texas or of The

Constitution or Laws of The United States of America" is inadmissible in a

criminal case See Texas Code of Criminal Procedure Article 38.23. Therefore, the

Trial Court should have granted Appellant's Motion to Suppress and ruled

inadmissible all evidence seized in this case relating to Appellant's D.W.I. arrest

including, but not limited to the results of any field sobriety testing.


      Next, Deputy Escalante lacked reasonable suspicion to stop Appellant's

vehicle based on the 911 call. The 911 call did not give a description of:




                                            6
             1) The driver, whether male or female (RR. Vol. 1 p. 18).

             2) Any criminal activity.

             3) A description of the vehicle (RR. Vol 1. P. 9 & 15).

             4) How Appellant allegedly hit the McDonald's building (RR. Vol. 1
                p. 17).

             5) What time the Appellant allegedly hit the building (RR. Vol. 1 p.
                18).

             6) The description of the 911 caller or how to contact or identify the
                911 caller.


An anonymous tip from a 911 call must be supported by sufficient indicia of

reliability or it will seldom provide reasonable suspicion for an investigatory stop.

See Martinez v. State, 348 S.W. 3d 919, 923 (Tex. Crim. App. 2011). A tip from a

911 call by an unnamed informant of undisclosed reliability standing alone rarely

will establish the requisite level of suspicion necessary to justify an investigative

detention. See US v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 1881 (1980) and

State v. Sailo, 910 S.W. 2d 184,188 (Tex. App. Ft. Worth 1995 pet. ref d). As

noted from the facts referenced above, the 911 call in this case showed no reliable

facts. In fact, the Deputy noticed no damage to the building and did not even have

a description of the vehicle or what time this event even occurred. The 911 caller

in this case did not report any contextual factors that would have lead Deputy

Escalante to reasonably believe he was justified in stopping Appellant's vehicle.


                                           7
See Martinez v. State at 925 and Arguellez v. State, 409 S.W. 3d 657, 663-664

(Tex. Crim. App. 2013).


      Further, there was no evidence in the record to suggest the Love's Truck

Stop or the McDonald's was remotely near or connected to a high crime area.

Deputy Escalante was not able to corroborate any of the facts from the 911 call

because the call was really conclusory. Basically, the call stated we have someone

here in the drive-through at McDonald's that hit the building and appears

intoxicated. However, as noted earlier:


             1) The call does not say what time this occurred.

             2) Who actually observed this activity.

             3) A description of the driver.

             4) A description of the vehicle.

             5) How the building was actually hit.


Without more, the law is clear. Deputy Escalante had no reasonable suspicion to

stop Appellant's vehicle. Reasonable suspicion requires the information in the call

to be reliable in its assertion of unlawful conduct, See Florida v. J.L., 529 U.S. 266,

270, 120 S. Ct. 1375 (2000). In this case, again, Deputy Escalante saw no criminal

activity, no damage to the building, and no traffic violations prior to stopping the

Appellant's vehicle.

                                           8
      In conclusion, the Trial Court committed error by not granting Appellant's

Motion to Suppress.




                                        9
                         CONCULSION AND PRAYER



WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court of

Appeals to uphold the points of error presented herein, reverse the judgment, and

remand the case for a new trial.



                                      Respectfully submitted,




                                      Danford Law Firm
                                      813 Barnett Street
                                      Kerrville, Texas 78028
                                      State Bar No. 00783924
                                      (830)257-4045 Office
                                      (830)896-5250 Fax
                                      hdanford@ktc.com




                                        10
                               Certificate of Service


I hereby certify that a true and correct copy of Appellant's Brief has been sent to
Donald Allee, Kendall County Attorney, 201 East San Antonio Stn1t;t, Suite 306,
Boerne, Texas 78006-2050 by U.S. Certified mail on this the I 1-t:!:J_ day of
May, 2015.




                                         11
                           Certificate of Compliance

      I, Harold J. Danford, hereby certify that in compliance to Texas Rules of
Appellate Procedure Rule 9.4(i)(3), this document has 2,325 words according to the
word count the computer program used to prepare the document.

      Signed on ~ I (                    '2015.




                                        12
