                                                                                ACCEPTED
                                                                            03-14-00816-CR
                                                                                    5192332
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                       5/7/2015 12:36:32 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK

                        NO. 03-14-00816-CR
                                                           FILED IN
                             IN THE                 3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
                                                    5/7/2015 12:36:32 PM
                        COURT OF APPEALS
                                                      JEFFREY D. KYLE
                                                            Clerk
                     THIRD DISTRICT OF TEXAS

                         AUSTIN, TEXAS


ARIANA OLIVEIRA                 §                         APPELLANT

vs.                            §

THE STATE OF TEXAS             §                           APPELLEE



      APPEAL FROM THE COUNTY COURT AT LAW NUMBER EIGHT

                     TRAVIS COUNTY, TEXAS

                   CAUSE NO. C-1-CR-14-209113


                       APPELLANT'S BRIEF


                                    JOSHUA D. SAEGERT
                                    Law Office of Joshua D. Saegert
                                    609 W. 9th Street
                                    Austin, Texas 78701
                                    Phone: (512) 371-3477
                                    Fax: (512) 236-9287
                                    saegertlaw@yahoo.com
                                    State Bar No. 90001888
                                    ATTORNEY FOR DEFENDANT

                                    Oral Argument Requested
                    IDENTITY OF PARTIES AND COUNSEL


 Ariana Oliveira
 2709 Barton Point Dr.
 Austin, Texas 78733
 Appellant

Joshua D. Saegert
609 W. 9th Street
Austin, Texas 78701
Appellate Attorney for Appellant

Joshua D. Saegert
609 W. 9th St.
Austin, TX 78701
Trial Attorney for Appellant

Allison Tisdale
Travis County Attorney's Office
P.O. Box 1748
Austin, Texas 78767
Trial Attorney for the State

Stephen H. Capelle
Travis County Attorney's Office
P. 0. Box 1748
Austin, TX 78767
Appellate Attorney for the State

Lisa C. McMinn
Travis County Attorney's Office
P. 0. Box 1748
Austin, TX 78767
Appellate Attorney for the State




                                   1
David A. Escamilla
Travis County Attorney's Office
P. 0. Box 1748
Austin, TX 78767
Appellate Attorney for the State

The Honorable Carlos Barrera
County Court at Law Number Eight
P.O. Box 1748
Austin, Texas 78767
Trial Judge




                                   11
                                             TABLE OF CONTENTS


  IDENTITY OF PARTIES AND COUNSEL ............................................................ i


  TABLE OF AUTHORlTIES ................................................................................... iv


 STATEMENT OF THE CASE ................................................................................ vi


 STATEMENT REGARDING ORAL ARGUMENT ............................................. vii


 ISSUE PRESENTED ............................................................................................. viii


 STATEMENT OF FACTS ....................................................................................... 2


 SUMMARY OF THE ARGUJ\1ENT ....................................................................... 3


POINT OF ERROR ................................................................................................... 3


         THE TRlAL COURT ERRED IN OVERRULING APPELLANT'S
         MOTION TO      SUPPRESS   EVIDENCE BECAUSE NO
         REASONABLE PERSON WOULD HAVE FELT FREE TO LEAVB
         WHEN THE OFFICER SIGNALED THAT THE APPELLANT
         WAS DETAINED BY USING HIS OVERHEAD RED AND BLUE
         LIGHTS, AND THERE WAS NOT REASONABLE SUSPICION
         TO SUPPORT THE DETENTION................................................................ 3


PRAYER ................................................................................................................. 11


CERTIFICATE OF SERVICE ............................................................................... 12


CERTIFICATE OF COMPLIANCE ...................................................................... 12


                                                           111
                                      TABLE OF AUTHORITIES

  Cases

 Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007) ................................... 4-5

 Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002) ......................................... 8

 Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) .................................. 6, 9-10

 Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005) ...................................... 5

 Florida v. Bostick, 501 U.S. 429 (1991) ................................................................... 7

 Guinn v. State, 1998 WL 418034 (Tex. App.-Houston[1stDist.] 1998, no pet.) ... 9

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

Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) .................................... 4-5

Kaupp v. Texas, 538 U.S. 626 (2003) .................................................................... 6-7

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) ...................................... 5

Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App.2006) .................................... 4

Romero v. State, 800 S.W.2d 539 (Tex. Crim. App.l990) ....................................... 4

State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008) ..................... 6-7, 9

State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) .......................................... 5

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000), modified on other grounds
  by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006) ....................... :........ 4

Terry v. Ohio, 392 U.S. 1 (1968) .............................................................................. 6

United States v. Steele, 782 F.Supp. 1301 (S.D.Ind.1992) ....................................... 7

                                                       lV
 Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007) ........................................ 4-5


Statutes

TEX. CODE CRIM. PROC. ART. 14.01 .......................................................................... 9

TEX. TRANS. CODE §543.001 ..................................................................................... 9

TEX. TRANS. CODE §543.004 ..................................................................................... 9

TEx. TRANs. CoDE §542.501 ..................................................................................... 9

TEx. CoNsT. ART. I, §9 .............................................................................................. 6

u.s. CONST. AMEND. 4 .............................................................................................. 6




                                                         v
                           STATEMENT OF THE CASE


Nature of the case:                On July 7, 2014, the Travis County Attorney
                                   filed an information alleging that Appellant
                                   committed the offense of Driving While
                                   Intoxicated on or about June 6, 2014. CR
                                   16.

Course ofproceedings:             Appellant filed a motion to suppress
                                  evidence on October 7, 2014. CR 30-34. A
                                  hearing on this motion was held on October
                                  29, 2014. RR II. The trial court denied
                                  Appellant's motion to suppress on
                                  November 14, 2014. RR III 4. The court
                                  issued Findings of Fact and Conclusions of
                                  Law explaining its decision. CR 85-86.

Disposition of the case:          Following the denial of her motion to
                                  suppress evidence, Appellant pleaded "no
                                  contest." CR 90-91. The trial court found
                                  Appellant guilty of this offense and
                                  sentenced her to 180 days in jail probated
                                  for 2 years. CR 92-93. The trial court
                                  certified that Appellant had the right to
                                  appeal its ruling on the motion to suppress.
                                  CR 105. Appellant timely filed her notice of
                                  appeal on December 29, 2014. CR 102-103.




                                   Vl
                STATEMENT REGARDING ORAL ARGUMENT


Appellant requests oral argument because she believes that it would aid in this

Court's decision process. The resolution of the issue on appeal turns on whether

an officer can detain a person solely because their vehicle is stopped on the side of

the road. Oral argument would assist in clarifying when an officer can detain a

citizen solely to investigate without any articulable facts that criminal activity is

taking place.




                                        Vll
                              ISSUE PRESENTED


When a police officer pulls behind a vehicle that is parked on the side of the road

and turns on his overhead red and blue lights, would a reasonable person believe

that she was free to leave.




                                      Vlll
                               NO. 03-14-00816-CR

                                     IN THE

                              COURT OF APPEALS

                          THIRD DISTRICT OF TEXAS

                                AUSTIN, TEXAS


ARIANA OLIVEIRA                         §                          APPELLANT

vs.                                     §

THE STATE OF TEXAS                      §                            APPELLEE



      APPEAL FROM THE COUNTY COURT AT LAW NUMBER EIGHT

                          TRAVIS COUNTY, TEXAS

                        CAUSE NO. C-1-CR-14-209113



TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Appellant Ariana Oliveira, by and through her undersigned

counsel, and offers this Appellant's Brief. Appellant would respectfully show the

Court the following:




                                       1
                               STATEMENT OF FACTS


          Austin Police Officer Bryce Sakamoto testified that he was on duty on June

 6th   2014 and arrested the Appellant Ariana Oliveira for Driving While Intoxicated.

 RR II 6. Officer Sakamoto was driving southbound on the IH-35 frontage road

 when he saw Appellant's vehicle on Old San Antonio road, just west of the IH-35

 frontage road. The vehicle was running, the headlights were on and it was stopped

 in the dirt embankment on the side of Old San Antonio road. RR II 7. He pulled

 behind her, turned on his overhead lights and detained her. RR II 7-8. He had

 observed no moving violations. RR II 10. Officer Sakamoto testified that it took

approximately ten seconds from the time he saw her vehicle until he pulled behind

her and turned on his overhead lights.        RR II 11.     During that ten second

observation period, he did not have any reason to believe criminal activity was

taking place. RR II 11. Officer Sakamoto further testified that once he turned on

his overhead lights, she was not free to leave. RR II 12. He testified to be clear for

the court, she was detained. RR II 13. Officer Sakamoto did not see anyone in

distress. RR II 19. There were other vehicles that passed by during his detention

of Appellant, and there was some lighting coming from the nearby shopping

center. RR II 14-15, 19. This was an area that Officer Sakamoto was familiar with

and there was no evidence that this was a high crime area.           RR II 21.    He

                                          2
 approached Miss Oliveira's vehicle with her inside. After speaking with her he

 suspected that she might be intoxicated and began a criminal investigation. RR II

 24. Based on the subsequent investigation the Appellant was arrested for DWI.


                        SUMMARY OF THE ARGUMENT


       The trial court erred in overruling Appellant's motion to suppress all

evidence derived from the illegal detention of her vehicle. No reasonable person

would have felt free to leave when a police officer pulls his car behind a car and

turns on his red and blue overhead lights.        In fact, disobeying the officer's

command to stop would have been an arrestable offense.             As a result, an

investigative detention occurred when Officer Sakamoto stopped Appellant.

Because there were no articulable facts supporting reasonable suspicion for this

detention, the trial court should have granted Appellant's motion to suppress.


                               POINT OF ERROR

     THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S
     MOTION TO SUPPRESS EVIDENCE BECAUSE NO
     REASONABLE PERSON WOULD HAVB FELT FREE TO LEAVB
     WHEN THE OFFICER SIGNALLED THAT THE APPELLANT
     WAS DETAINED BY USING HIS OVERHEAD RED AND BLUE
     LIGHTS, AND THERE WAS NOT REASONABLE SUSPICION
     TO SUPPORT THE DETENTION.




                                         3
                               Argument and Authorities

        An appellate court reviews a trial court's ruling on a motion to suppress

 evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666,

 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

 App. 1997). In reviewing the trial court's decision, the reviewing court does not

 engage in its own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.

 Crim. App.1990). As the sole trier of fact, the trial judge is in the best position to

 assess the credibility of the witnesses and the weight to be given their testimony.

 Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v.

Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, a reviewing court

gives almost total deference to the trial court's rulings on (1) questions of historical

fact, even if the trial court's determination of those facts was not based on an

evaluation of credibility and demeanor, and (2) application-of-law-to-fact

questions that tmn on an evaluation of credibility and demeanor. Amador, 221

S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim.

App.2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).

However, when application-of-law-to-fact questions do not tum on the credibility

and demeanor of the witnesses, the appellate court reviews the trial court's rulings


                                          4
 on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154

 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.

        Stated another way, when reviewing the trial court's ruling on a motion to

 suppress, this Court should view the evidence in the light most favorable to the

 trial court's ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, this

 Court determines whether the evidence, when viewed in the light most favorable to

 the trial court's ruling, supports those factual findings. Kelly, 204 S.W.3d at 818-

 19. This Court should then review the trial court's legal ruling de novo unless its

explicit fact findings that are supported by the record are also dispositive of the

legal ruling. Id at 819.

       Here, the trial court's factual findings are not dispositive of the legal ruling

(i.e., whether a reasonable person would have felt free to leave when Officer

Sakamoto signaled that the Appellant was detained by using his overhead red and

blue lights). As a result, this Court should conduct a de novo review of the trial

court's application of the law to the facts of the case. See Madden v. State, 242

S.W.3d 504, 517 (Tex. Crim. App. 2007) (reviewing de novo whether the totality

of the circumstances was sufficient to support an officer's reasonable suspicion of

criminal activity).


                                          5
         There are three distinct categories of interactions between citizens and police

 officers: (1) consensual encounters, (2) investigative detentions, and (3) arrests.

 Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). While a consensual

 encounter is not subject to constitutional scrutiny, a detention constitutes a

 "seizure" under both the United States and Texas constitutions. See TEX.CONST.

 ART. I, §9; see also U.S.CONST.AMEND. 4; see also Crain, 315 S.W.3d at 49; see

 also State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008).

Because an encounter is consensual by nature, a citizen is free to terminate it at any

time.    Crain, 315 S.W.3d at 49.       "An encounter takes place when an officer

approaches a citizen in a public place to ask questions, and the citizen is willing to

listen and voluntarily answers." Id. Meanwhile, "an investigative detention occurs

when a person yields to the police officer's show of authority under a reasonable

belief that he is not free to leave." Id.; see also Terry v. Ohio, 392 U.S. 1, 19 n.16

(1968) (a seizure occurs when an officer, "by means of physical force or show of

authority, has in some way restrained the liberty of a citizen").

        In analyzing the question of whether a seizure has occurred, courts consider

all of the circumstances surrounding the encounter. Garcia-Cantu, 253 S.W.3d at

242; see also Kaupp v. Texas, 538 U.S. 626, 629 (2003).             While the officer's

conduct is the primary focus of the inquiry, the time, place, and attendant

circumstances are also important considerations. Id. at 244.        "A court must step
                                           6
 into the shoes of the defendant and determine from a common, objective

 perspective whether the defendant would have felt free to leave." Id. at 244

 (quoting United States v. Steele, 782 F.Supp. 1301, 1309 (S.D.Ind.l992). This

 reasonable-person test is both objective and fact specific; moreover, it presupposes

 an innocent person. Id. at 24 3.

       A seizure has occurred if "the police conduct would have communicated to a

 reasonable person that the person was not free to decline the officers' requests or

 otherwise terminate the encounter." Garcia-Cantu, 253 S.W.3d at 242 (citing

Florida v. Bostick, 501 U.S. 429, 439 (1991)). The Court of Criminal Appeals

succinctly describes the core issue in this type of case:

       It is the display of official authority and the implication that this
       authority cannot be ignored, avoided, or terminated, that results in a
       Fourth Amendment seizure. At bottom, the issue is whether the
       surroundings and the words or actions of the officer and his associates
       communicate the message of"We Who Must Be Obeyed."
              I d. at 243

       Turning to the case at bar, the trial court incorrectly concluded that Officer

Sakamoto's conduct was consistent with a consensual encounter rather than a

detention. CR 85-86. Contrary to the trial court's conclusion, the undisputed facts

demonstrate that a reasonable person would have yielded to the officer's display of

authority.




                                          7
       The attendant circumstances are critical in analyzing how a reasonable

 person would have responded to Officer Sakamoto's show of authority. The time

 was 1:45 am, and Appellant had pulled over and parked on the side of the road to

 check her GPS for directions.

       Appellant had pulled off of the IH-35 frontage road and then off of the side

 road so that she could safely stop her vehicle and check her GPS monitor for

 directions. There was lighting coming from the nearby shopping center and other

vehicles are seen drving by during the encounter. It was not a dark and dangerous

place in a high crime area.      Appellant nor her vehicle displayed any signs of

distress or criminal activity prior to Officer Sakamoto detaining her.

       At the hearing, on re-direct by the state, Officer Sakamoto disingenuously

suggested that Appellant was free to leave prior to his contact with her. RR II 22.

This is despite the fact that he had previously testified that she was detained when

he turned on his overhead red and blue lights, and not free to leave. RR II 12.

Regardless, Officer Sakamoto's contradictory statements are irrelevant because the

analysis proceeds from the perspective of a reasonable person in Appellant's shoes.

When a police car pulls behind you in the middle of the night and activates his

overhead red and blue lights, no reasonable person would have felt free to leave

after Officer Sakamoto exercised his authority.


                                         8
        In fact, Appellant would have committed a criminal offense if she had not

 obeyed Officer Sakamoto's show of authority. See TEX. TRANS. CODE §542.501

 ("Obedience Required to Police Officers and to School Crossing Guards").

 According to this statute, "a person may not willfully fail or refuse to comply with

 a lawful order or direction of a police officer." Id. Violating this statute gives

 officers authority to stop, investigate, and arrest.       See TEX. TRANS. CODE

 §§543.001, 543.004 (authorizing custodial arrest for traffic offenses other than

 speeding or open container); see also TEX. CODE CRIM. PROC. ART. 14.01

(authorizing arrest for offense within an officer's presence); see also Guinn v.

State, 1998 WL 418034, at         *1   (Tex. App.-Houston[1 st Dist.] 1998, no pet.)

(holding that a violation of TEX. TRANS. CODE §542.501 gives officers authority to

detain or arrest the violator).

       Significantly, the test proceeds from the perspective of a reasonable,

innocent person. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App.

2008). No innocent person would leave in this situation, as that action would

provide the police with cause to arrest that person pursuant to TEx. TRANS. CODE

§542.501.    Thus, a reasonable, innocent person had but one choice: obey the

officer's order.

      Crain v. State is squarely on point. See 315 S.W.3d 43 (Tex. Crim. App.

2010). In that case, the officer testified that upon observing the defendant, he
                                            9
 activated his headlights and called out to him: "Come over here and talk to me." Id.

 at 51. The defendant complied by taking a few steps and then stopping. Id. The

 officer further testified that he would have let the man go if he had not complied

 with his command, as he had not observed anything that could be construed as

 illegal activity.   I d. at 47.   Upon approaching the man, the officer smelled

marijuana and an investigative detention ensued. Id. Emphasizing the mandatory

nature of the officer's command, the Court of Criminal Appeals held that an

investigative detention, as opposed to a consensual encounter, had occurred. Id. at

51-52.

         Judge Cochran's analysis of the difference between a "request" and an

"order" is particularly applicable here:

       Under the Fourth Amendment, there is a world of difference between
       an officer's request and his order. A request signifies a consensual
       encounter beyond the purview of the Fourth Amendment; a command,
       if heeded, usually denotes a Fourth Amendment detention. A request
       is a question that asks for an answer; an order is a command which
       requires obedience.
              Crain, 315 S.W.3d at 54-55 (Tex. Crim. App. 2010) (Cochran,
             J., concurring) (citations omitted)

Like the officer in Crain, Officer Sakamoto issued an order when he used red and

blue overhead lights to detain Appellant. Also, as in Crain, the officer's headlights

were activated at night. In this climate, Officer Sakamoto's conduct cannot be

construed as a mere request that a reasonable person would have felt free to ignore.

                                           10
 Instead, it constituted an order requiring obedience.      Appellant did what any

 reasonable person would have done when the police pull behind you and activate

 their overhead red and blue lights: she stayed put, and rolled down her window to

answer Officer Sakamoto's questions.

       Prior to Officer Sakamoto's contact with Appellant, he did not observe

Appellant commit a traffic violation and he did not testify about any other

information that indicated that Appellant was engaged in criminal activity. As a

result, there was not reasonable suspicion to support the investigative detention.

      Because Appellant was detained without reasonable suspicion of illegal

activity, this Court should reverse the trial court's order denying her motion to

suppress evidence.


                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

sustain her point of error, reverse the trial court's judgment of conviction, direct

the trial court to grant Appellant's motion to suppress all evidence derived from the

unlawful stop, and remand for a new trial.




                                         11
                                             Respectfully submitted,




                                             Austin, Texas 78701
                                             Phone: (512) 371-3477
                                             Fax: (512) 236-9287
                                             State Bar No. 90001888
                                             ATTORNEY FOR APPELLANT


                          CERTIFICATE OF SERVICE

      This is to certify that the above Appellant's brief has been served on the

State's attorney by hand-delivering a copy to David A. Escamilla, Travis County




                       CERTIFICATE OF CO:M:PLIANCE


      This is to certify that the above Appellant's brief complies with the length

requirements of TEX. R. APP. PROC. 9.4(i)(2) because it contains 3,305 words.




                                        12
