                  WR-83,625-01
    COURT OF CRIMINAL APPEALS
                    AUSTIN, TEXAS
  Transmitted 7/22/2015 12:41:48 PM
     Accepted 7/22/2015 1:17:42 PM
                     ABEL ACOSTA
                             CLERK
       RECEIVED
COURT OF CRIMINAL APPEALS
       7/22/2015
   ABEL ACOSTA, CLERK
  Appendix

      A


Reporter Record

 Vol. 1, 2 & 3
                                                                        1


 1                            REPORTER'S RECORD

 2                          VOLUME 1 OF 3 VOLUMES

 3                    APPELLATE CASE NO. 12-14-00296-CR

 4                     TRIAL COURT CASE NO. 14-1048

 5   THE STATE OF TEXAS               §        IN   THE   COUNTY   COURT
                                      §
 6   VS.                              §        AT LAW     NUMBER TWO   OF
                                      §
 7   DAVID MARK DAVIS II              §        ANGELINA COUNTY, TEXAS

 8

 9

10

11                     _____________________________

12                             MASTER INDEX
                       _____________________________
13

14

15

16

17

18

19          On the 25th day of September, 2014 and the 10th day of

20   October, 2014, the following proceedings came on to be heard

21   in the above-entitled and numbered cause before the Honorable

22   Derek C. Flournoy, Judge presiding, held in Lufkin, Angelina

23   County, Texas:

24          Proceedings reported by Computerized Stenograph

25   Machine.


     Elizabeth Murphy, CSR - Deputy    P.O. Box 908, Lufkin, TX 75902-0908
     159th Judicial District Court                         936-639-3913
                                                                  2


 1                        A P P E A R A N C E S

 2   Mr. James Yakovsky                   Mr. David Mark Davis, II
     ASSISTANT COUNTY ATTORNEY            11 Glenview Court
 3   SBOT NO. 24030668                    Lufkin, TX 75901
     215 E. Lufkin Avenue                 (936) 238-8507
 4   Lufkin, TX 75901                     APPEARING PRO SE
     (936) 639-3929
 5   ATTORNEY FOR STATE

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


     Elizabeth Murphy, CSR - Deputy   P.O. Box 908, Lufkin, TX 75902-0908
     159th Judicial District Court                        936-639-3913
                                                                      3


 1                              VOLUME 1
                             (MASTER INDEX)
 2
                                VOLUME 2
 3                   (HEARING ON MOTION TO SUPPRESS)
                                                          Page     Vol.
 4   SEPTEMBER 25, 2014

 5   Case called . . . . . . . . . . . . . . . . . . . . .     4     2

 6   Opening comments by the Court . . . . . . . . . . . .     4     2

 7   Questions by the Court regarding Motion to Suppress .     6     2

 8   Questions by the Court regarding State's Burden . . .     6     2

 9   Response regarding State's Burden by Mr. Yakovsky . .     6     2

10   Questions by the Court regarding Motion to Suppress .     8     2

11   Response regarding Motion to Suppress by Mr. Davis. .     8     2

12   Further Comments and Questions by the Court . . . . .     9     2

13   Further Response by Mr. Davis . . . . . . . . . . . .     9     2

14   Further Response by Mr. Yakovsky. . . . . . . . . . . 11        2

15   Further Comments by the Court, Mr. Davis and
     Mr. Yakovsky. . . . . . . . . . . . . . . . . . . . . 12        2
16
     Proceedings adjourned . . . . . . . . . . . . . . . . 16        2
17
     Court Reporter's Certificate. . . . . . . . . . . . . 17        2
18
                             EXHIBIT INDEX
19
     NO.           DESCRIPTION            OFFERED   ADMITTED       VOL.
20
     NONE
21
                                VOLUME 3
22                            (BENCH TRIAL)
                                                          Page     Vol.
23   OCTOBER 10, 2014

24   Opening comments by the Court . . . . . . . . . . . .     4     3

25   Argument regarding Motion to Suppress by Defendant. .     4     3


     Elizabeth Murphy, CSR - Deputy   P.O. Box 908, Lufkin, TX 75902-0908
     159th Judicial District Court                        936-639-3913
                                                                      4


 1   Response regarding Motion to Suppress by State. . . .     5     3

 2   Partial Denial of Motion to Suppress by the Court . .     5     3

 3   No Contest Plea entered by Defendant. . . . . . . . .     5     3

 4   Court's Ruling and Acceptance of No Contest Plea. . .     6     3

 5   Oral Notice of Appeal entered by Defendant. . . . . .     6     3

 6   Court's Ruling on Punishment. . . . . . . . . . . . .     8     3

 7   Proceedings adjourned . . . . . . . . . . . . . . . .     8     3

 8   Court Reporter's Certificate. . . . . . . . . . . . .     9     3

 9                           EXHIBIT INDEX

10   NO.           DESCRIPTION            OFFERED   ADMITTED       VOL.

11   NONE

12

13

14

15

16

17

18

19

20

21

22

23

24

25


     Elizabeth Murphy, CSR - Deputy   P.O. Box 908, Lufkin, TX 75902-0908
     159th Judicial District Court                        936-639-3913
                                                                    5


 1   THE STATE OF TEXAS    §

 2   COUNTY OF ANGELINA    §

 3          I, Elizabeth Murphy, Official Court Reporter in and for

 4   County Court at Law No. 2 of Angelina County, State of Texas,

 5   do hereby certify that the above and foregoing contains a

 6   true and correct transcription of all portions of evidence

 7   and other proceedings requested in writing by counsel for the

 8   parties to be included in this volume of the Reporter's

 9   Record, in the above-styled and numbered cause, all of which

10   occurred in open court or in chambers and were reported by

11   me.

12          I further certify that this Reporter's Record of the

13   proceedings truly and correctly reflects the exhibits, if

14   any, admitted by the respective parties.

15          I further certify that the total cost for the

16   preparation of this Reporter's Record is $__________ and will

17   be paid by ______________________________.

18

19          WITNESS MY OFFICIAL HAND this the _____ day of

20   ____________________, 2014.

21

22                                    ______________________________
                                      ELIZABETH MURPHY, CSR #4832
23                                    Expiration Date: 12/31/2014

24

25


     Elizabeth Murphy, CSR - Deputy   P.O. Box 908, Lufkin, TX 75902-0908
     159th Judicial District Court                        936-639-3913
                                                                         1


 1                            REPORTER'S RECORD

 2                         VOLUME 2 OF 3 VOLUMES

 3                  APPELLATE CASE NO. 12-14-00296-CR

 4                    TRIAL COURT CASE NO. 14-1048

 5   THE STATE OF TEXAS              §          IN   THE   COUNTY   COURT
                                     §
 6   VS.                             §          AT LAW     NUMBER TWO   OF
                                     §
 7   DAVID MARK DAVIS II             §          ANGELINA COUNTY, TEXAS

 8

 9

10

11

12                    _____________________________

13                    HEARING ON MOTION TO SUPPRESS
                      _____________________________
14

15

16

17

18

19

20          On the 25th day of September, 2014, the following

21   proceedings came on to be heard in the above-entitled and

22   numbered cause before the Honorable Derek C. Flournoy, Judge

23   presiding, held in Lufkin, Angelina County, Texas:

24          Proceedings reported by Computerized Stenograph

25   Machine.


     Elizabeth Murphy, CSR               P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                  936-634-8984
                                                                  2


 1                        A P P E A R A N C E S

 2   Mr. James Yakovsky                   Mr. David Mark Davis, II
     ASSISTANT COUNTY ATTORNEY            11 Glenview Court
 3   SBOT NO. 24030668                    Lufkin, TX 75901
     215 E. Lufkin Avenue                 (936) 238-8507
 4   Lufkin, TX 75901                     APPEARING PRO SE
     (936) 639-3929
 5   ATTORNEY FOR STATE

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


     Elizabeth Murphy, CSR          P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                             936-634-8984
                                                                       3


 1                              I N D E X
                                VOLUME 2
 2                   (HEARING ON MOTION TO SUPPRESS)
                                                           Page     Vol.
 3   SEPTEMBER 25, 2014

 4   Case called . . . . . . . . . . . . . . . . . . . . .      4     2

 5   Opening comments by the Court . . . . . . . . . . . .      4     2

 6   Questions by the Court regarding Motion to Suppress .      6     2

 7   Questions by the Court regarding State's Burden . . .      6     2

 8   Response regarding State's Burden by Mr. Yakovsky . .      6     2

 9   Questions by the Court regarding Motion to Suppress .      8     2

10   Response regarding Motion to Suppress by Mr. Davis. .      8     2

11   Further Comments and Questions by the Court . . . . .      9     2

12   Further Response by Mr. Davis . . . . . . . . . . . .      9     2

13   Further Response by Mr. Yakovsky. . . . . . . . . . . 11         2

14   Further Comments by the Court, Mr. Davis and
     Mr. Yakovsky. . . . . . . . . . . . . . . . . . . . . 12         2
15
     Proceedings adjourned . . . . . . . . . . . . . . . . 16         2
16
     Court Reporter's Certificate. . . . . . . . . . . . . 17         2
17
                              EXHIBIT INDEX
18
     NO.           DESCRIPTION             OFFERED   ADMITTED       VOL.
19
     NONE
20

21

22

23

24

25


     Elizabeth Murphy, CSR           P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                              936-634-8984
                                                                        4


 1                  THE COURT:   This is Cause 14-1048, State of

 2   Texas versus David Mark Davis, II.     All right.   Mr. Davis --

 3   let the record reflect Mr. Davis is present pro se, State's

 4   present through Mr. Yakovsky.    Let me ask a couple questions

 5   before we get started.   I've had an opportunity to read the

 6   motion and the response.    That aside, there were a couple

 7   other things you filed, Mr. Davis.     You filed a motion for

 8   the jury to assess punishment, which obviously is your right

 9   to do.   I've never had anybody file an order with -- getting

10   my permission because I don't think you have to have my

11   permission to file that, you know.     I'd be happy to sign it

12   if you'd like, I just don't know that it's necessary and then

13   you also did that on your motion to make an opening

14   statement.   You have the right to make an opening statement

15   in trial whether it's a nonjury or a jury trial and you've

16   submitted an order with that as well.     I mean, it doesn't

17   bother me to grant that motion, although I don't know that

18   it's something I have the authority to deny, but, you know,

19   whatever you want me to do.    It doesn't really matter; so,

20   I'll sign it if you want me to.

21                  MR. DAVIS:   Your Honor, I since -- on the jury

22   issue, I waived a jury for a Bench trial after I filed that.

23                  THE COURT:   Okay.

24                  MR. DAVIS:   And the other issue, it's your

25   call, sir.   You don't have to sign it if --


     Elizabeth Murphy, CSR               P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                  936-634-8984
                                                                       5


 1                 THE COURT:    Okay.   Any thoughts on that, Mr.

 2   Yakovsky?

 3                 MR. YAKOVSKY:    No, Judge.   I don't have any

 4   thoughts on those issues.

 5                 THE COURT:    You filed your waiver of counsel,

 6   which is nice.   I haven't seen a pro se litigant do this,

 7   although, you know, these are the admonitions that I have to

 8   give, to tell you what a horrible idea it is to represent

 9   yourself at trial; however, with this being a Class C

10   misdemeanor, obviously you don't run the risk of

11   incarceration.   It's a fine-only offense if you're convicted;

12   so -- but that's nice.   I like that.    That's good to see.

13                 All right.    You've also filed a Motion for

14   Discovery and Inspection of Evidence.     I didn't actually set

15   that for today's hearing, I just set the Motion to Suppress,

16   but you and Mr. Yakovsky get together on that and, you know,

17   under the new Michael Morton Act, there are certain things

18   you're entitled to receive.    I know there's some question

19   because it's not specifically addressed as to what a pro se

20   litigant can have because the act itself talks about an

21   attorney or a defendant being able to possess certain

22   documents, but like I say, I suspect that if you and Mr.

23   Yakovsky get together, you can probably work through those

24   issues and if you can't, then I'll reset it.

25                 Let's see -- all right.     On the Motion to


     Elizabeth Murphy, CSR               P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                  936-634-8984
                                                                         6


 1   Suppress, let me ask this question because I couldn't tell

 2   from your motion.   What is it that you're trying to suppress?

 3                 MR. DAVIS:   The fruits of the stop itself.

 4                 THE COURT:   Which were what?

 5                 MR. DAVIS:   The identity and the basis for the

 6   cause of action, being able to identify me.

 7                 THE COURT:   Okay.   You have any cases on that

 8   issue?

 9                 MR. DAVIS:   Yes -- at the house.     I can do a

10   little more research.    Most of the stuff I've read deals with

11   DUIs as a secondary.

12                 THE COURT:   Sure, because they're taking blood

13   or breath or something like that.       I've never seen this in a

14   speeding traffic violation case before and, so, like I say, I

15   was just a little confused.    I didn't know what you were

16   trying to suppress unless there was -- you gave a statement

17   or something like that, but I couldn't tell, from looking at

18   the file, that you had.    All right.    Mr. Davis, are you ready

19   to proceed?

20                 MR. DAVIS:   Yes, sir.

21                 THE COURT:   State ready?

22                 MR. YAKOVSKY:    We're ready, Judge.

23                 THE COURT:   All right.     Do you agree because

24   this is a warrantless search that you have the burden?

25                 MR. YAKOVSKY:    Judge, that's kind of an


     Elizabeth Murphy, CSR              P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                 936-634-8984
                                                                      7


 1   interesting question and I'll just tell you kind of what I

 2   did.   I did file a reply just to give the Court a little --

 3   to be quite honest, I didn't feel -- and the Court will

 4   probably give Mr. Davis some leeway, being pro se, and I'm

 5   happy to go along with that as well, but this Motion to

 6   Suppress, he doesn't articulate any particular facts as to

 7   either a constitutional or a statutory violation in

 8   connection with the traffic stop and, so, what I did was I

 9   just prepared a response and sort of generalized the laws

10   that may touch on a traffic stop.

11                   There's no arrest, no search, no seizure, just

12   a notice to appear was all he had to sign, promise to appear;

13   so, I wanted to lay those things out in my response,

14   indicating that all those elements were met, elements of a

15   citation in a speeding case; I mean, it's a pretty

16   straightforward area of law and pretty straightforward

17   procedurally.

18                   So, in order for me to make any more of it than

19   what it really is, I did the best I could just by kind of

20   showing that we believe that as far as this being a basic

21   traffic stop, there wasn't anything that touched on either a

22   constitutional or statutory violation, that I can tell, based

23   on the Motion to Suppress and as a result of that, I feel

24   like Mr. Davis has still got the burden there to overcome the

25   -- there's a premise that everything was done properly and


     Elizabeth Murphy, CSR            P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                               936-634-8984
                                                                     8


 1   until that premise is overcome with some articulated fact or

 2   circumstance to indicate that there was some constitutional

 3   or statutory violation, then it's sort of difficult to

 4   respond to not knowing -- usually you have a -- trying to

 5   suppress blood evidence in a DUI case and maybe it was based

 6   on a warrantless search or some issue where you've got some

 7   fruits of the arrest and stop and all those and we don't have

 8   any of that here.

 9                 So, I'm just kind of generalizing in my

10   response, but I do believe that he still has some burden

11   because I'm not really sure where we stand with what regard

12   we have to prove -- it's difficult to prove something I don't

13   know where -- you know, what are we up against, I guess.

14                 THE COURT:   And I guess one of -- the issue is

15   normally we see a Motion to Suppress on a search or seizure

16   and your Motion to Suppress is silent on what it is that

17   you're trying to suppress.   You just say fruits, the cause of

18   action came from fruits produced as a direct result of the

19   detention, but then you don't -- you don't give any

20   indication of what that is and that's why my first question

21   is what are you trying to suppress here?

22                 MR. DAVIS:   Well, in rebuttal, Your Honor,

23   warrantless stops -- I mean, it was a seizure.   I disagree

24   with that point because I wasn't free to go; I mean, when a

25   police officer turns their reds and blues on behind you, if I


     Elizabeth Murphy, CSR            P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                               936-634-8984
                                                                      9


 1   were to just drive off, I'm going to be arrested.    I'm being

 2   restrained against my will.    I would certainly call that a

 3   seizure, kind of goes into the DUI caselaw, the same thing.

 4   The basis for the stop was a seizure.

 5                 THE COURT:   I don't think it's a seizure.   I

 6   think it's a detention.    Generally at that point in time when

 7   you've been pulled over, you're detained and you're not free

 8   to leave until they've ascertained the information they're

 9   needing to get from you.   Do you have any cases on point with

10   regard to a traffic stop where it's a speeding?

11                 MR. DAVIS:   Just -- the only ones I've been

12   able to find are related to other offenses like drugs found

13   after the search or DUI or after the seizure.

14                 THE COURT:   Because I think once you've been

15   stopped and there's probable cause to stop you or reasonable

16   suspicion to stop you, I think you have an obligation at that

17   point in time to give your name or they can charge you with a

18   fail to identify.

19                 MR. DAVIS:   Yes, sir.

20                 THE COURT:   Once they request it, you have to

21   give it, unlike your blood or consent to search or things of

22   that nature, you don't have an obligation to give it.

23                 MR. DAVIS:   Yes, sir.

24                 THE COURT:   They have to either have a warrant

25   or have some probable cause to search at that point in time.


     Elizabeth Murphy, CSR             P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                936-634-8984
                                                                     10


 1   What I would prefer to do, and I'm going to tell you what my

 2   thought is, but I would prefer to give you the opportunity to

 3   find me a case on point in regard to just a traffic stop on a

 4   speeding or it doesn't necessarily even have to be a

 5   speeding; I mean, it could be a running a red light or

 6   something of that nature that doesn't involve drugs or

 7   alcohol that would have been seized or searched, okay?   I'm

 8   not going to say confident, but I have a feeling you're not

 9   going to find anything because I don't believe that this

10   applies, but I'm going to give you that opportunity to find

11   something.   You've listed a couple of cases here talking

12   about routine traffic stops and I haven't read either one of

13   these and you didn't bring those for me, did you?

14                 MR. DAVIS:   No, Your Honor, but those deal with

15   -- they're not speeding and the problem with it is there's

16   not a lot of caselaw on C misdemeanor traffic violations.      I

17   can get on Lexis and look at --

18                 THE COURT:   See what you can find.

19                 MR. DAVIS:   -- Shepardize it, but I don't know.

20                 THE COURT:   Usually when you have cases like

21   that, when you have traffic -- and there are some that go up,

22   but usually someone is asserting a constitutional right and,

23   of course, it costs a lot more to do that than it does to pay

24   a fine in a traffic case; so, it's usually principle-based

25   and those go up either to the State or the US Supreme Court,


     Elizabeth Murphy, CSR             P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                936-634-8984
                                                                       11


 1   but there are some, you know, the red light camera, stuff has

 2   gone up.   I think the one recently that went up was the guy

 3   that was driving on the left-hand -- in the left-hand lane,

 4   outside lane.   Police officer pulls him over for not driving

 5   on the inside lane, you know, and you'll see those signs that

 6   say slower traffic keep to the right.      That one went up and

 7   the issue was, was there notice sufficient that he should

 8   have known to stay on the right-hand side of the road if he's

 9   not passing, you know.    Cases like that will go up and that

10   was a Texas Supreme Court case that came down, what, end of

11   last year?

12                   MR. YAKOVSKY:    I think so.

13                   THE COURT:   That's when TXDOT came back and put

14   up all those signs all over the place so now there's no

15   question about that, but -- let's do that, see if you can

16   find anything and, Mr. Yakovsky, you take a look, too.

17                   MR. YAKOVSKY:    Sure, Judge.   I will.   Then,

18   like I said, I did want to review whatever I could and I ran

19   into the same difficulty.       It's real hard to touch on any

20   case that doesn't result in some arrestable offense, such as

21   a DUI, a possession of a controlled substance.       You've always

22   got a fruit and search and seizure as a result of the initial

23   traffic stop, then you, you know, course of practice is to

24   start with the traffic stop and go from there to see if you

25   can eliminate the stuff that's going to get you in real


     Elizabeth Murphy, CSR               P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                  936-634-8984
                                                                          12


 1   trouble.

 2                   THE COURT:   Well, and one thing we can do, too,

 3   I didn't see and I may have just missed it, when did you file

 4   your election for Bench trial over a jury trial?

 5                   MR. DAVIS:   I would say it's about a month ago.

 6                   MR. YAKOVSKY:   Judge, he filed it whenever he

 7   came for arraignment.    He had the file -- I got a copy of it.

 8                   THE COURT:   The Clerk's Office, for some

 9   reason, has not been bradding these down and, so, I have

10   these loose in the file and I didn't see it.        Let me

11   double-check.

12                   MR. DAVIS:   In the Defense's position on what

13   he's getting at about the search, the seizure is that the

14   actual stop was the seizure.     It appears from Mr. Yakovsky's

15   response brief, he stated there was no arrest, no searches,

16   no seizures; so, I'm assuming he's not agreeing with that

17   premise, but that's the Defense's premise on that.

18                   THE COURT:   Okay.   All right.    Well, if you

19   can, find some caselaw on that for me as well.

20                   MR. YAKOVSKY:   This was it.      It's titled as a

21   Defendant's Waiver for Bench Trial and Revocation of Previous

22   Application for --

23                   THE COURT:   Okay.   I haven't seen that.     So,

24   the Clerk's Office has either lost it or they have filed it

25   in another case.


     Elizabeth Murphy, CSR                P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                   936-634-8984
                                                                       13


 1                 MR. DAVIS:    Yes, sir.

 2                 THE COURT:    So -- but with that being said,

 3   probably the easiest thing to do since it's not a jury trial,

 4   you can argue all of these issues at trial and, so, I'll just

 5   set it for a Bench trial.     I would suspect probably, what,

 6   hour, hour and a half to try it?

 7                 MR. DAVIS:    I would hope so.

 8                 THE COURT:    I wouldn't think it would take

 9   longer than that.   I would suspect we would have your

10   testimony and the testimony of the officer, you know, because

11   one of the issues that you'll presumably make at trial is,

12   you know, Number 1, did the officer actually give you a

13   ticket that was proper, you know, was the stop good, was he

14   right on what he did, was his radar working right, those

15   kinds of issues; so, a lot of times, if you don't have a jury

16   involved, it's easier just to do it all at one time, then I

17   can take up those issues rather than everybody have to come

18   back multiple times, but do that.       Look -- if that's okay,

19   I'll just set it for a trial.

20                 MR. DAVIS:    Yes, sir.

21                 THE COURT:    My court coordinator's given me the

22   date of October 10th or October 23rd.

23                 MR. DAVIS:    10th should be good.

24                 THE COURT:    Is that good for you, Mr. Yakovsky?

25                 MR. YAKOVSKY:    I'm sure.


     Elizabeth Murphy, CSR             P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                936-634-8984
                                                                        14


 1                   THE COURT:    We have from 10:00 to 11:30 --

 2   didn't I set a hearing on that date just a couple days ago?

 3   I thought I did, October the 10th.

 4                   MR. TAYLOR:    I believe that was the juvenile

 5   for that -- which they ended up -- they agreed to it.

 6                   THE COURT:    That's right.    It was an agreed

 7   modification; so, I canceled that.        Okay.   So, from 10:30 to

 8   12:00 --

 9                   THE COORDINATOR:     No, 10:00 AM.

10                   THE COURT:    10:00 AM to 11:30?

11                   THE COORDINATOR:     Uh-huh.

12                   MR. DAVIS:    The Defense would prefer to -- if

13   possible, the suppression issue separate before trial that

14   date.

15                   THE COURT:    Why?

16                   MR. DAVIS:    Just so there's a record of it for

17   appeal.    That way, it doesn't get messy.

18                   THE COURT:    There'll be a record.    You'll have

19   your record and what will happen is on the Motion to

20   Suppress, like I say, I'll just take it all at one time, then

21   I'll make a ruling on your Motion to Suppress in addition to

22   the trial.

23                   MR. DAVIS:    Yes, sir, that's fine.    I just

24   didn't want it to get confusing trying to --

25                   THE COURT:    It won't.


     Elizabeth Murphy, CSR                P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                   936-634-8984
                                                                    15


 1                 MR. DAVIS:   -- sort it out.

 2                 THE COURT:   Because, like I say, I'll make

 3   separate rulings.

 4                 MR. DAVIS:   That's fine.

 5                 THE COURT:   As short of a hearing as it's going

 6   to be, the Court of Appeals, if it goes up, they won't --

 7   they see messy stuff all the time that's -- you know, weeks

 8   and months long.    Hour and a half won't give them any

 9   trouble, but I do want you to have some caselaw for me to

10   support your two positions.

11                 MR. DAVIS:   Yes, sir.

12                 THE COURT:   Number 1, that the stop itself is a

13   seizure and Number 2, that your identity and information is a

14   seizure after the stop.

15                 MR. DAVIS:   Yes, sir.    And would you prefer

16   those in writing, submitted prior to trial?

17                 THE COURT:   The cases?

18                 MR. DAVIS:   Yes, sir, as like a supplemental

19   motion on that, just so you have them in writing?

20                 THE COURT:   Probably, yeah, I would prefer to

21   have the cases, you know, couple of days or a week prior to

22   trial.

23                 MR. DAVIS:   I can do that.

24                 THE COURT:   We don't have that many weeks prior

25   to trial since we're going to do it on the 10th, but, yeah,


     Elizabeth Murphy, CSR            P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                               936-634-8984
                                                                     16


 1   give me an opportunity to review them and make sure and give

 2   Mr. Yakovsky a copy so he can review them and respond to

 3   them, if necessary, and then, of course, Mr. Yakovsky, if he

 4   finds something that's favorable to you or favorable to the

 5   State, then he needs to give you a copy of it as well.

 6                 MR. DAVIS:   Yes, sir.

 7                 THE COURT:   All right.    Any other questions?

 8                 MR. DAVIS:   No, Your Honor.

 9                 THE COURT:   No.   Mr. Yakovsky?

10                 MR. YAKOVSKY:   All good, Judge.

11                 THE COURT:   Mr. Davis, let me give you this.

12   It's just a court setting date.

13                 MR. DAVIS:   Yes, sir.

14                 THE COURT:   So, 10/10/14.   Okay.   We're

15   adjourned.   See you back on the 10th.

16                 (Proceedings adjourned)

17

18

19

20

21

22

23

24

25


     Elizabeth Murphy, CSR             P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                936-634-8984
                                                                   17


 1   THE STATE OF TEXAS    §

 2   COUNTY OF ANGELINA    §

 3          I, Elizabeth Murphy, Official Court Reporter in and for

 4   County Court at Law No. 2 of Angelina County, State of Texas,

 5   do hereby certify that the above and foregoing contains a

 6   true and correct transcription of all portions of evidence

 7   and other proceedings requested in writing by counsel for the

 8   parties to be included in this volume of the Reporter's

 9   Record, in the above-styled and numbered cause, all of which

10   occurred in open court or in chambers and were reported by

11   me.

12          I further certify that this Reporter's Record of the

13   proceedings truly and correctly reflects the exhibits, if

14   any, admitted by the respective parties.

15          I further certify that the total cost for the

16   preparation of this Reporter's Record is $__________ and will

17   be paid by ______________________________.

18

19          WITNESS MY OFFICIAL HAND this the _____ day of

20   ____________________, 2014.

21

22                                  ______________________________
                                    ELIZABETH MURPHY, CSR #4832
23                                  Expiration Date: 12/31/2014

24

25


     Elizabeth Murphy, CSR           P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                              936-634-8984
                                                                         1


 1                            REPORTER'S RECORD

 2                         VOLUME 3 OF 3 VOLUMES

 3                  APPELLATE CASE NO. 12-14-00296-CR

 4                    TRIAL COURT CASE NO. 14-1048

 5   THE STATE OF TEXAS              §          IN   THE   COUNTY   COURT
                                     §
 6   VS.                             §          AT LAW     NUMBER TWO   OF
                                     §
 7   DAVID MARK DAVIS II             §          ANGELINA COUNTY, TEXAS

 8

 9

10

11                    _____________________________

12                             BENCH TRIAL
                      _____________________________
13

14

15

16

17

18

19

20          On the 10th day of October, 2014, the following

21   proceedings came on to be heard in the above-entitled and

22   numbered cause before the Honorable Derek C. Flournoy, Judge

23   presiding, held in Lufkin, Angelina County, Texas:

24          Proceedings reported by Computerized Stenograph

25   Machine.


     Elizabeth Murphy, CSR               P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                  936-634-8984
                                                                  2


 1                        A P P E A R A N C E S

 2   Mr. James Yakovsky                   Mr. David Mark Davis, II
     ASSISTANT COUNTY ATTORNEY            11 Glenview Court
 3   SBOT NO. 24030668                    Lufkin, TX 75901
     215 E. Lufkin Avenue                 (936) 238-8507
 4   Lufkin, TX 75901                     APPEARING PRO SE
     (936) 639-3929
 5   ATTORNEY FOR STATE

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


     Elizabeth Murphy, CSR          P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                             936-634-8984
                                                                       3


 1                              I N D E X
                                VOLUME 3
 2                            (BENCH TRIAL)
                                                           Page     Vol.
 3   OCTOBER 10, 2014

 4   Opening comments by the Court . . . . . . . . . . . .      4     3

 5   Argument regarding Motion to Suppress by Defendant. .      4     3

 6   Response regarding Motion to Suppress by State. . . .      5     3

 7   Partial Denial of Motion to Suppress by the Court . .      5     3

 8   No Contest Plea entered by Defendant. . . . . . . . .      5     3

 9   Court's Ruling and Acceptance of No Contest Plea. . .      6     3

10   Oral Notice of Appeal entered by Defendant. . . . . .      6     3

11   Court's Ruling on Punishment. . . . . . . . . . . . .      8     3

12   Proceedings adjourned . . . . . . . . . . . . . . . .      8     3

13   Court Reporter's Certificate. . . . . . . . . . . . .      9     3

14                            EXHIBIT INDEX

15   NO.           DESCRIPTION             OFFERED   ADMITTED       VOL.

16   NONE

17

18

19

20

21

22

23

24

25


     Elizabeth Murphy, CSR           P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                              936-634-8984
                                                                         4


 1                 THE COURT:   All right.    I believe we're waiting

 2   on your primary witness.

 3                 MR. YAKOVSKY:   Yes, Judge.   He was on his way

 4   from the police station.   They were -- he called me early

 5   this morning and said he might be running just right at it

 6   because they're four officers short this morning.        They had a

 7   bunch of people call in.

 8                 THE COURT:   Okay.   Well, while we're waiting on

 9   him to get here, I'm going to go ahead and take up Mr. Davis'

10   initial -- I think your initial premise of your Motion to

11   Suppress.

12                 MR. DAVIS:   Yes, sir.

13                 THE COURT:   And that is that you believe that

14   because the stop was warrantless, you believe that the burden

15   shifts to the State to produce that burden to show that it

16   was -- that they had reasonable suspicion --

17                 MR. DAVIS:   Correct, Your Honor.

18                 THE COURT:   -- otherwise.    All right.    I'll go

19   ahead and let you make your argument in that regard.       If

20   you'll stand for me when you do that.

21                 MR. DAVIS:   Yes, sir.    Just ask the Court to

22   take note -- notice that the traffic stop was initiated

23   without a warrant.   That's all I got.

24                 THE COURT:   And those are your sole grounds for

25   that --


     Elizabeth Murphy, CSR              P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                 936-634-8984
                                                                       5


 1                 MR. DAVIS:   Yeah, that's my sole ground.

 2                 THE COURT:   -- premise.   Okay.   Mr. Yakovsky,

 3   do you have a response?

 4                 MR. YAKOVSKY:   Judge, I believe we've got

 5   reasonable suspicion of the traffic offense that was

 6   committed in plain view of the officer based upon a

 7   reasonable suspicion to make a stop.     There was no arrest in

 8   this case.   It was just a traffic stop and a citation issued

 9   for a speeding violation and a notice to appear; so,

10   therefore, I don't think we're triggering all the things that

11   Mr. Davis may have concerns about.

12                 THE COURT:   All right.    Well, I'm going to deny

13   that portion, Mr. Davis, of your -- of your Motion to

14   Suppress.

15                 MR. DAVIS:   Yes, sir.

16                 THE COURT:   Are you ready to proceed with the

17   remainder of your Motion to Suppress?

18                 MR. DAVIS:   Yes, sir.    I'd like to enter a no

19   contest plea conditioned on my right to appeal.

20                 THE COURT:   Any objection?

21                 MR. YAKOVSKY:   No objection, Your Honor.

22                 THE COURT:   No?

23                 MR. DAVIS:   And as far as punishment goes,

24   there's no agreements with me and the State, just throw

25   myself to the mercy of the Court.


     Elizabeth Murphy, CSR            P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                               936-634-8984
                                                                     6


 1                 THE COURT:   Okay.   All right.   Just one second.

 2   Thank you for that.   All right.   For the record's purposes,

 3   the Court has denied Mr. Davis' motion to shift the burden to

 4   the State regarding the traffic stop.    It's the Court's

 5   opinion that a warrant is not required on a traffic stop if

 6   the officer has reasonable suspicion to make the stop;

 7   therefore, that is the Court's reasoning in the failure -- in

 8   the refusal to shift the burden to the State.

 9                 Mr. Davis has entered a plea of no contest at

10   this time.   I'll accept your plea of no contest at this time.

11   Does the State have any evidence on punishment?

12                 MR. YAKOVSKY:   No, Your Honor.

13                 THE COURT:   No?

14                 MR. YAKOVSKY:   We wouldn't have any --

15                 THE COURT:   Mr. Davis, do you have any

16   testimony you'd like to give regarding punishment?

17                 MR. DAVIS:   No, Your Honor.

18                 THE COURT:   No.

19                 MR. DAVIS:   Also, Your Honor, if you could --

20   I'd like to request a -- enter my notice of appeal on the

21   record and request appeal bond be set.

22                 THE COURT:   Okay.   Thank you.   Do you know what

23   court costs are, Mr. Yakovsky?

24                 MR. YAKOVSKY:   Judge, let me take a look.    I

25   believe -- I think we've got a cost sheet over here.


     Elizabeth Murphy, CSR              P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                 936-634-8984
                                                                           7


 1                 MR. DAVIS:    Just to be fair, there was two

 2   subpoenas served by Constable Selman and I don't know if

 3   they've been processed yet, as far as the fees for those,

 4   just make sure -- I mean, I'm gonna appeal so they'd be under

 5   bond, but just in case when it finals out, he gets what he's

 6   supposed to get for his work.

 7                 THE COURT:    Well, there's no -- no fee on a

 8   criminal subpoena.

 9                 MR. DAVIS:    Yes, sir.    Thank you.

10                 THE COURT:    Who are the people that you speak

11   of?

12                 MR. DAVIS:    These two gentlemen right here.       I

13   guess this is the City of Lufkin engineer.

14                 THE COURT:    Are you Mr. Walker?

15                 MR. WALKER:    Yes, sir.

16                 MR. DAVIS:    And I do not know his name.     The

17   lady I subpoenaed -- TXDOT called me.      Their general counsel

18   had asked if I could substitute with one of their other

19   managers.

20                 THE COURT:    Okay.

21                 MR. DAVIS:    And --

22                 MR. TEIMAN:    Brad Teiman.

23                 MR. DAVIS:    Brad Teiman.

24                 THE COURT:    Brad Teiman.    Okay.   All right.

25   Mr. Teiman and Mr. Walker, at this time I'm going to release


     Elizabeth Murphy, CSR               P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                  936-634-8984
                                                                      8


 1   you from your subpoena.    You're free to go.

 2                 MR. YAKOVSKY:    Judge, it looks like those court

 3   costs are going to be 248.10.    That's the non-drug, non-DWI,

 4   citation to appear base cost of 218, plus we have the $30 for

 5   transportation code cost and then 10 cents court cost on

 6   moving violation.

 7                 THE COURT:   Okay.   Thank you.

 8                 MR. YAKOVSKY:    So, brings it to a total of

 9   248.10.

10                 THE COURT:   Mr. Davis, if you'll stand for me,

11   please.

12                 MR. DAVIS:   Yes, sir.

13                 THE COURT:   At this time I'm going to assess a

14   fine of $75, plus court costs of 248.10.

15                 MR. DAVIS:   Yes, sir.

16                 THE COURT:   Thank you.   You can have a seat.

17                 (End of requested proceedings)

18

19

20

21

22

23

24

25


     Elizabeth Murphy, CSR              P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                                 936-634-8984
                                                                    9


 1   THE STATE OF TEXAS    §

 2   COUNTY OF ANGELINA    §

 3          I, Elizabeth Murphy, Official Court Reporter in and for

 4   County Court at Law No. 2 of Angelina County, State of Texas,

 5   do hereby certify that the above and foregoing contains a

 6   true and correct transcription of all portions of evidence

 7   and other proceedings requested in writing by counsel for the

 8   parties to be included in this volume of the Reporter's

 9   Record, in the above-styled and numbered cause, all of which

10   occurred in open court or in chambers and were reported by

11   me.

12          I further certify that this Reporter's Record of the

13   proceedings truly and correctly reflects the exhibits, if

14   any, admitted by the respective parties.

15          I further certify that the total cost for the

16   preparation of this Reporter's Record is $__________ and will

17   be paid by ______________________________.

18

19          WITNESS MY OFFICIAL HAND this the _____ day of

20   ____________________, 2014.

21

22                                  ______________________________
                                    ELIZABETH MURPHY, CSR #4832
23                                  Expiration Date: 12/31/2014

24

25


     Elizabeth Murphy, CSR           P.O. Box 908, Lufkin, TX 75902-0908
     County Court at Law #2                              936-634-8984
           Appendix
              B

Judgment of 12th Court of Appeals
                                        NO. 12-14-00296-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

DAVID MARK DAVIS II,                                      §       APPEAL FROM THE
APPELLANT

V.                                                        §       COUNTY COURT AT LAW # 2

THE STATE OF TEXAS,
APPELLEE                                                  §       ANGELINA COUNTY, TEXAS

                                        MEMORANDUM OPINION
        David Mark Davis II attempts to appeal his conviction for speeding, for which he was
assessed a fine of seventy-five dollars. Article 4.03 of the code of criminal procedure determines
our jurisdiction in this matter. It provides as follows:


        The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their
        respective districts in all criminal cases except those in which the death penalty has been assessed.
        This Article shall not be so construed as to embrace any case which has been appealed from any
        inferior court to the county court, the county criminal court, or county court at law, in which the
        fine imposed or affirmed by the county court, the county criminal court or county court at law
        does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or
        ordinance on which the conviction is based.


TEX. CODE CRIM. PROC. ANN. art. 4.03 (West Supp. 2014). Appellant appealed from a municipal
court to a county court at law. The county court at law imposed a fine that does not exceed one
hundred dollars. Appellant does not complain that the statute on which his conviction was based
is unconstitutional. Therefore, we have no jurisdiction over this appeal.
        Accordingly, we dismiss the appeal for want of jurisdiction.1



        1
           Neither party raised the jurisdictional issue in its brief. However, we are required to address a lack of
jurisdiction sua sponte if the parties do not raise the issue. Solis v. State, 890 S.W.2d 518, 520 (Tex. App.—Dallas
1994, no pet.).
                                                                JAMES T. WORTHEN
                                                                   Chief Justice


Opinion delivered May 29, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                          2
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                             MAY 29, 2015


                                        NO. 12-14-00296-CR


                                     DAVID MARK DAVIS II,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                           Appeal from the County Court at Law No 2
                         of Angelina County, Texas (Tr.Ct.No. 14-1048)

                      THIS CAUSE came to be heard on the appellate record; and the same
being considered, it is the opinion of this court that this court is without jurisdiction of the
appeal, and that the appeal should be dismissed.
                      It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
