                                                                                     PD-0837-15
                                                                    COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                    Transmitted 8/7/2015 1:35:14 PM
                                                                     Accepted 8/11/2015 1:48:39 PM
                                                                                     ABEL ACOSTA
                                                                                             CLERK
                                  No. PD-0837-15


                                       In The


                     Court of Criminal Appeals

                                     O f Te x a s
                                   Austin, Texas



                                MARK FIBRANZ,
                                                                 Appellant

                                        VS.


                             THE STATE OF TEXAS,
                                                                   Appellee


       APPELLANT*S PETITION FOR DISCRETIONARY REVIEW
                         from the Court of Appeals for the
                           Fifth District of Texas at Dallas
                       in Cause No. NO. 05-14-01203-CR;
                  On appeal from Dallas County Criminal Court 8,
                    Dallas County, Texas in Cause No. 12-36516


                                   Mark Lassiter
                  BARRETT BRIGHT LASSITER LINDER PEREZ
                            3500 Maple Ave. Suite 400
                                Dallas, Texas 75129
                                  (214) 845-7007
                                (214) 845-7006 fax
                                 mark@lomtl.com
                           State Bar Number 24055821




August 11, 2015
                                          I
            I D E N T I T Y O F PA R T I E S . C O U N S E L . A N D J U D G E S


Mark Fibranz, Appellant

Mark T. Lassiter, Attorney for Appellant on Appeal and on Discretionary Review
3500 Maple Ave. Suite 400
Dallas, Texas 75129
(214) 845-7007
(214) 845-7006 fax
mark@lomtl.com
State Bar Number 24055821


Law Office of Deandra M. Grant, P.C.
Deandra Grant, Attorney for Appellant on Motion to Suppress
Laura Buehner, Attorney for Appellant on Motion to Suppress
800 E. Campbell Road, Suite 110
Richardson, Texas 75081
(972) 943-8500

Susan Hawk, Dallas County District Attorney, Attorney for Appellee,
133 N. Riverfront Blvd., LB 19
Dallas, Texas 75207-4399
(214) 653-3600
(214) 653-3643 fax

Lisa McMinn, State Prosecuting Attorney,
RO. Box 13046
Austin, Texas 78711-3046
(512) 463-1660
(512) 463-5724
email - Lisa.McMinn@spa.texas.gov and information@spa.texas.gov.

Hon. Tina Yoo, Presiding Judge at Trial, Dallas County Criminal Court
No. 8,
133 N. Riverfront Blvd.,
Dallas, Texas 75207-4399




                                             I I
                                   TA B L E O F C O N T E N T S



IDENTITY                             OF                     PA RT I E S           II


TA B L E                      OF                        CONTENTS                 Ill


INDEX                        OF                      AUTHORITIES                 IV


S TAT E M E N T O F T H E C A S E


S TAT E M E N T O F T H E P R O C E D U R A L H I S T O R Y


G R O U N D F O R R E V I E W.


       THE COURT OF APPEALS ERRED BY HOLDING THE RULING WAS
       R E A S O N A B LY S U P P O R T E D B Y T H E R E C O R D


R E A S O N S F O R R E V E I W.


ARGUMENTS AND AUTHORITIES


P R AY E R


C E RT I F I C AT E                       OF                  SERVICE             8


       APPENDIX                                                                   9


       Fibranz v. State, No. 05-14-01203-CR (Tex.App. - Dallas, delivered June
       10, 2015)(not designated for publication)




                                               III
                             INDEX OF AUTHORITIES


CASES


Ramos v. State, 245 S.W.3d 410,417-18 (Tex.Crim.App.2008) passim

State V. Duran, 396 S.W.3d 563,568-70 (Tex.Crim.App.2013) passim

Fibranz v. State, No. 05-14-01203-CR (Tex.App. - Dallas, delivered June 10,
2015)(not           designated         for    publication)            passim



R U L E S A N D S TAT U T O R Y P R O V I S I O N S ;


Te x . R . A p p . P.                              66.3(c)                2




                                             I V
                        S TAT E M E N T O F T H E C A S E


      Appellant, Mark Fibranz, was charged in Cause No. M12-36516 with

the offense of Driving While Intoxicated (DWI). A motion to suppress the

detention of the Appellant was held on September 2, 2014, before County

Criminal Court Eight (8) of Dallas County, Texas, at which time Appellant's

motion was denied. The Appellant pled guilty to the offense of DWI on

September 2, 2014. The trial court set Appellant's punishment at one

hundred and eighty (180) days in jail, probated for eighteen (18) months and

a $1000.00 fine. Appellant filed for and gave timely Notice of Appeal to the

Court of Appeals for the Fifth Supreme Judicial District of Texas on

September 10, 2014.




          S TAT E M E N T O F T H E P R O C E D U R A L H I S TO RY


      Appellant presented a single issue in his brief The Court of Appeals

delivered its opinion affirming Petitioner's conviction on June 10, 2015 in

Fibranz v. State, No. 05-14-01203-CR (Tex.App. - Dallas, delivered June

10, 2015)(not designated for publication). The Court of Appeals ordered

that it's opinion not be published. No motion for rehearing was filed. On

August 7, 2015, Petitioner's counsel filed this his petition for discretionary

review by this Court.



                                       -1-
                           GROUND FOR REVIEW


IF VIDEO EVIDENCE CONTRADICTS TESTIMONY IN A HEAPONG,
IS   A    FINDING      THE     HEARING         TESTIMONY     IS   A C C U R AT E
R E A S O N A B LY S U P P O R T E D B Y T H E R E C O R D



                          REASONS FOR REVIEW


         Review is proper because the Court of Appeals has decided an

important question of State law in conflict with the applicable decisions of

this Court under Tex.R.App.P. 66.3(c). Namely: Ramos v. StatCy 245

S.W.3d 410 (Tex.Crim.App.2008).




                                         -2-
                     ARGUMENT & AUTHORITIES


      In the trial court the officer gave three reasons for pulling over the

Appellant: speeding, failing to use a turn signal and reckless driving. The

trial court ruled there was no speeding or reckless driving violation.

Fibranz, slip op. pp. 1. It also ruled the motion should be denied as there

was a violation for no turn signal. Id

      However, the defense argues the officer was not aware that a turn

signal was not used until after he reviewed his in-car video. On video the

officer claims to have seen the Appellant fail to signal while changing lanes

after the Appellant squealed his tires driving from an intersection. But, the

video also shows the Appellant using his signal properly during that time. In

the motion to suppress hearing, the officer changed his story claiming he

observed the failure to signal before squealing of the tires, in direct contrast

to his statement to the defendant on video.


      Thus, the evidence presented showed a direct conflict between the

testimony of the officer in the hearing, and what he explained to the

defendant he saw at the time the defendant was detained. No questions were

asked about this apparent conflict, thus there is no testimony explaining the

contrasting statements.




                                      -3-
       The question the Appellant posed to the Court of Appeals was did the

officer have knowledge of a failure to use a left turn signal before, or after,

the traffic stop. The Court of Appeals essentially held the trial court was

free to ignore the contradicting evidence on the video.

      The Court of Appeals reasoned that because the officer's testimony in

the motion to suppress hearing was clear that he had observed the defendant

fail to signal a left turn prior to the squealing of the tires, the traffic stop was

valid. Fibranz, slip op. pp. 4. The court also held, in response to the

Appellant's appeal about the conflicting statements, even if the statements

made by the officer on video at the scene were inconsistent, the trial court

is free to disbelieve any of that testimony. Id (emphasis added).

      This Court's decision in Duran, made it clear an officer must have

actual knowledge of an offense before a detention is valid. He cannot

substantiate a detention by information learned after the stop by watching an

in-car video and noticing additional violations.

       "Information that the officer either acquired or noticed after a
       detention or arrest cannot be considered. A detention is either good or
       bad at the moment it starts. State v. Duran, 396 S.W.3d 563, 568-70
       (Tex.Crim.App.2013)."

       The Defendant argues that when there is video evidence in direct

contradiction to the officer's statements as to what he was aware of; any

ruling contrary to that video evidence is not reasonably supported by the


                                        -4-
record. "[T]he trial court's ruling will be upheld if it is reasonably supported

b y t h e r e c o r d . . . " R a m o s v. S t a t e , 2 4 5 S . W. 3 d 4 1 0 , 4 1 7 - 1 8

(T ex .Crim. App .2008).

       The Court of Appeals, in it's analysis, ignored the recitation by the

officer as to what he was aware of and when he became aware of it. It also


claims the word "then" is inaudible. Fibranz, slip op. pp. 3. However, even

if the word "then" is inaudible, as the Court of Appeals claims (which the

defense disagree with), the statement made by the officer still represents

exactly what he saw and the order in which he saw it. The officer gives a

detailed explanation of exactly what happened from his viewpoint. The

relevant portion is transcribed below.

       State's Exhibit 1 - Officer's in-car video:


       Officer: Do you know why you were stopped?




       Fibranz: I was driving fast.

       Officer: Anything else?

       Fibranz: No sir.


       O f fi c e r : Yo u m a d e t h a t l e f t h a n d t u r n o v e r t h e r e o n t h e s e r v i c e


                         road, squealing your tires, high rate of speed, drew my

                         attention, (''THEN," inaudible according to the CO A)



                                                   -5-
                    left hand turn and drove all the way into the right lane

                    after entering the center lane, no signal, do you know

                    what I'm saying. (Video admitted, 22:6:49 -

                    22:07:30)(emphasis added).

      The officer clearly states what drew his attention was the squealing

of the tires. The only time he mentions not using a signal is during the

defendant's driving after the squealing while changing lanes. He said

nothing about not using a signal before making the turn and before squealing

his tires on a wet roadway. Based on this statement we know exactly what

the officer saw and it was ALL after the squealing of the tires. Thus, the

officer would not be aware of the only violation that supported the stop,

which was failure to use a turn signal before coming to the intersection in

which the defendant squealed his tires.

      The Court of Appeals holding is that Texas courts are entitled to

choose which version of the story they believe if there is conflicting

testimony, as there is in this case. However, when there is direct evidence

establishing what the officer knew, the defense argues it is not

reasonable to find a direct conflicting version is more accurate. While

the defense understands Texas courts are free to make decisions regarding

the veracity of a witness, this situation is different. Here, the trial court was



                                       -6-
asked by the State to ignore direct evidence that did not support it's position

in order to validate a detention.


       Trial courts should not be able to ignore evidence simply to support an

otherwise invalid stop. There is a reason it is well-established by this Court

that the "ruling MUST be reasonably supported by the evidence." In this

case, it is not.

                           P R AY E R F O R R E L I E F


       For the reasons stated in this petition, Appellant respectfully prays

that this Court grant discretionary review, find that the Court of Appeals

erred, reverse the opinion and judgment of the Court of Appeals, grant the

relief requested in this petition, and remand this case back to the trial court

for further proceedings.

                                         Respectfully submitted.




                                         MAKKTrCSSSITER

                                         3500 Maple Ave.
                                         Suite 400

                                         Dallas, Texas 75219
                                         214/845-7007
                                         214/845-7006 fax
                                         mark@lomtl.com
                                         State Bar No. 24055821




                                       -7-
                       C E R T I F I C AT E O F S E R V I C E


      This is to certify that a true and correct copy of the foregoing Petition
for Discretionary Review was delivered to both the Dallas County District
Attorney's Office (by email to michaelxasillas@dalIascounty.org), and the
State Prosecuting Attorney (by email to Lisa.McMinn@spa.texas.gov), on
this the 7^*^ day of August, 2015.



                                                 MA^XJi;-fc7^cSSltER


                    C E RT I F I C AT E O F C O M P L I A N C E


        This certifies that this document complies with the type-volume
limitations because this document is computer-generated and does not
exceed 4,500 words. Using the word-count feature of Microsoft Word, the
undersigned certifies that this document contains 929 words in the document
except in the following sections: caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix. This document also
complies with the typeface requirements because it has been prepared in a
proportionally-spaced typeface using 14-point font. See Tex. Rule App.
Proc. 9.4(2014).




                                                 M A R K T. L A S S I T E R




                                        -8-
                               APPENDIX



1. Fihranz v. State^ No. 05-14-01203-CR (Tex.App. - Dallas, delivered
June 10, 2015)(not designated for publication)




                                     -9-
Affirmed and Opinion Filed June 10,2015




                                              In The

                                    Court 0f Appeals
                         JRftli Siatrict nf (Sznns at Ballas
                                      No. 05-14-01203-CR


                           MARK PATRICK FIBRANZ, Appellant
                                                V .

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 8
                                   Dallas County, Texas
                               Trial Court Cause No. M12-36516



                             MEMORANDUM                  OPINION
                       Before Justices Francis, Lang-Miers, and Whitehill
                                  Opinion by Justice Whitehill
       Mark Patrick Fibranz appeals his conviction for driving while intoxicated. In a single

issue, he argues the trial court erred in denying his motion to suppress. We affirm.

                                          I. Background

       Fibranz was pulled over for speeding, failing to use a turn signal, and reckless driving,

and was subsequently arrested and charged with driving while intoxicated. He filed a motion to

suppress the traffic stop evidence that led to his arrest claiming the traffic stop was made without

reasonable suspicion or probable cause.

       The trial court conducted a hearing and denied the motion. In so doing, the judge stated,

"[T]he violation for which this motion to suppress is being denied is the no-left-tum." Fibranz

then pled guilty to DWI, and the trial court set his punishment at one himdred eighty days in jail

probated for eighteen months and a $1,000 fine.
                                                 II. Standard of Review


         When reviewing the trial court's ruling on a motion to suppress, we view the evidence in

the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.

Crim. App. 2006). When the trial court makes fact findings we determine whether the evidence,

when viewed in the light most favorable to the trial court's ruling, supports those fact findings.

Id. at 818-19. We 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 818. We

must uphold the trial court's ruling if it is supported by the record and correct under any theory

of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v.

Stevens, 235 S.W.Sd 736, 740 (Tex. Crim. App. 2007).

                                                       Analysis

          Fibranz argues the trial court erred in denying the motion to suppress because the

evidence shows the officer was not aware of his failure to signal until after the officer initiated

the stop.' We disagree.

         A videotape of the stop was admitted into evidence at the hearing. Officer Gary Fisher

testified that he was on his way home at approximately 10:05 p.m. on November 27, 2012. As

he approached the intersection of Riverside and Valley View he saw what was later identified as

Fibranz's vehicle traveling northbound at a high rate of speed. Officer Fisher tried to catch up to

the vehicle. As the vehicle turned into the left lane. Officer Fisher stayed in the right lane and

ran the license plate. He "noticed that [the vehicle] was in the left turn lane, no signal . . . ."

When Fibranz turned, "he squealed his tires, and it was loud." So he figured he should stop

Fibranz just to make sure "he was o.k." and the vehicle was not stolen. Officer Fisher said that

he stopped the vehicle because Fibranz was in the left turn lane without a signal and because he

    ' The State did not favor us with a brief.



                                                          - 2 -
heard Fibranz squeal his tires. Officer Fisher observed that "[m]ost people don't squeal their

tires with a police officer sitting next to them." After he stopped Fibranz, he "got some

indication that he may have been intoxicated," so he called a DWI officer to the scene. Fibranz's

failure to signal while in the left lane before making a left turn is apparent in the video.

          Fibranz argues that the officer's statements on the videotape contradict his testimony at

the hearing. According to Fibranz, when the officer explains in the video why he pulled Fibranz

over, he states that he first heard the tires squeal and then observed Fibranz fail to use a turn

signal. Since the video demonstrates that Fibranz did use his signal after he squealed the tires,

Fibranz claims the officer did not see him fail to use a signal and his testimony at the hearing is

not credible.


          An officer may lawfiilly stop and reasonably detain a person for a traffic violation.

Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); see also Derichsweiler v. State,

348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (noting officer must have reasonable suspicion

before making traffic stop). The failure to use a turn signal is a traffic violation. TEX. Transp.

Code Ann. § 545.104 (West 2011).

          Having reviewed the video and the testimony at the hearing, we conclude the trial court

did not err in denying the motion to suppress. First, if the officer used the word "then" to

describe the sequence of events that led to the stop, it is not audible in the video. The officer

states:


          You made that left hand turn over there on the service road, squealing your tires,
          high rate of speed, drew my attention. Left hand turn and drove all the way into
          the right lane after entering the center lane, no signal, do you know what I'm
          saying

          The video shows Fibranz in the left turn lane with no signal. After turning left, he turns

into the center lane, signals right, and moves into the right lane to exit.



                                                 - 3 -
          The officer's testimony is clear; he stopped Fibranz because he failed to signal left and

because of the squealing tires. Defense counsel devoted most of the officer's cross-examination

to his testimony about speeding, and did not suggest any inconsistencies between the audio

portion of the videotape and his testimony at the hearing.

           Moreover, even if the officer's testimony and the video statement were inconsistent, the

trial court was in the best position to evaluate Officer Fisher's testimony, and could believe or

disbelieve any or all of that testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000). Viewing the evidence in the light most favorable to the trial court's ruling, we conclude

the trial court did not err in denying the motion to suppress.

          We overrule Fibranz's sole issue and affirm the trial court's judgment.




Do Not Publish                                       /Bill Whitehill/
Te x . R . A P P. P. 4 7                             BILL    WHITEHILL
1 4 1 2 0 3 F. U 0 5                                 JUSTICE
                                  Court of Appeals
                       J f fi f t l i S i fi t r i c t o f a t S a l l a s
                                      JUDGMENT


MARK PATRICK FIBRANZ, Appellant                       On Appeal from the County Criminal Court
                                                      No. 8, Dallas County, Texas
No.   05-14-0I203-CR      V.                          Trial Court Cause No. Ml2-36516.

                                                      Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                          Justices Francis and Lang-Miers
                                                      participating.

       Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered June 10, 2015.




                                              - 5 -
