                                                                               ACCEPTED
                                                                           03-15-00065-CR
                                                                                   5648987
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                      6/12/2015 8:20:10 AM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                         NO. 03-15-00065-CR

__________________________________________________________________
                                                         FILED IN
                                                   3rd COURT OF APPEALS
                IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                THIRD SUPREME JUDICIAL DISTRICT6/12/2015 8:20:10 AM
                          AUSTIN, TEXAS              JEFFREY D. KYLE
                                                          Clerk
__________________________________________________________________

                ELIZABETH ANN BLACK, APPELLANT

                                 VS.

                 THE STATE OF TEXAS, APPELLEE
__________________________________________________________________

                         ON APPEAL FROM
              COUNTY COURT-AT-LAW NUMBER FIVE
                      TRAVIS COUNTY, TEXAS
                    CAUSE NO. C1-CR-13-217530
__________________________________________________________________

                        APPELLANT’S BRIEF
__________________________________________________________________

                                    MERIL “GENE” ANTHES, JR.
                                    State Bar No. 24040125
                                    Gene@GBAfirm.Com
                                    CHRISTOPHER M. GUNTER
                                    State Bar No. 08624600
                                    Chris@GBAfirm.Com
                                    GUNTER, BENNETT & ANTHES, P.C.
                                    600 West Ninth Street
                                    Austin, Texas 78701-2212
                                    (512) 476-2494
                                    (512) 476-2497 Facsimile
                                    Attorneys for Appellant
__________________________________________________________________

                 ORAL ARGUMENT IS REQUESTED
__________________________________________________________________
                  IDENTITY OF PARTIES AND COUNSEL


1.   Appellant:                              Elizabeth Ann Black

2.   Appellee:                               The State of Texas

3.   Trial counsel for Appellant:            Christopher M. Gunter and
                                             Meril “Gene” Anthes, Jr.
                                             Gunter, Bennett & Anthes, P.C.
                                             600 West Ninth Street
                                             Austin, Texas 78701

4.   Trial counsel for the State:            Christyne Harris Schultz
                                             Assistant County Attorney
                                             Travis County, Texas
                                             P.O. Box 1748
                                             Austin, Texas 78767

5.   Counsel on appeal for Appellant:        Meril “Gene” Anthes, Jr. and
                                             Christopher M. Gunter
                                             Gunter, Bennett & Anthes, P.C.
                                             600 West Ninth Street
                                             Austin, Texas 78701

6.   Counsel on appeal for the State:        Giselle Horton
                                             Assistant County Attorney
                                             Travis County, Texas
                                             P.O. Box 1748
                                             Austin, Texas 78767

7.   Trial Judge:                           The Honorable Nancy Hohengarten
                                            County Court-at-Law No. Five
                                            Travis County, Texas
                                            Blackwell/Thurman Criminal Justice Center
                                            509 West 11th, 4th Floor
                                            Austin, Texas 78701




                                        i
                                       TABLE OF CONTENTS
                                                                                                           PAGE

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

TABLE OF CONTENTS ........................................................................................ ii

INDEX OF AUTHORITIES................................................................................... iv

STATEMENT OF THE CASE ............................................................................... 1

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

ISSUE PRESENTED .............................................................................................. 4

SUMMARY OF THE ARGUMENT ..................................................................... 4

ARGUMENT .......................................................................................................... 5

    I.     STANDARD OF REVIEW........................................................................ 5

    II.    BURDEN OF PROOF ................................................................................ 6

    III. A PRIMER ON TRAFFIC CONTROL DEVICES .................................... 7

           A. Texas MUTCD & Austin Transportation Criteria Manual ................ 7

           B.    Definition of Barricade....................................................................... 8

           C.    Proper use of barricades. .................................................................... 9

    IV. APPELLANT DID NOT COMMIT A TRAFFIC OFFENSE ..................... 10

           A. Appellant did not violate § 472.022 or § 544.004 of
              the Texas Transportation code ........................................................... 10

                 1. Appellant did not commit the traffic offense of driving
                    around a barricade because she did not drive “around”
                    the barricade and the “barricade” did not meet the statutory
                    definition of barricade ................................................................... 11

                                                         ii
                  2. Appellant did not commit the traffic offense of failing to
                     comply with a traffic-control device because the
                     barricades, Officer Rodriguez, and signage were not
                     in the proper position .................................................................... 14

    V. CONCLUSION .......................................................................................... 20

PRAYER ................................................................................................................. 21

CERTIFICATE OF COMPLIANCE ...................................................................... 22

CERTIFICATE OF SERVICE ............................................................................... 22




                                                            iii
                                      INDEX OF AUTHORITIES

CASES                                                                                                        PAGE

Castro v. State, 227 S.W.3d 737 (Tex. Crim. App. 2007) .........................                                6

Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997) ..........................                                6

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) ............................                               6

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................                                  5

Issac v. State, 982 S.W.2d 96 (Tex. App. 1998) aff'd,
   989 S.W.2d 754 (Tex. Crim. App. 1999) .............................................                          2

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,
  19 L.Ed.2d 576 (1967)).........................................................................               6

Maxwell v. State, 73 S.W.3d 278 (Tex. Crim. App. 2002) .......................                                  5

Oles v. State, 993 S.W.2d 103 (Tex. Crim. App. 1999) ............................                               5

State v. Chacon, 273 S.W.3d 375 (Tex. App.—San Antonio
   2008, no pet.) ........................................................................................     11

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

United States v. Alvarado-Zarza, 782 F.3d 246 (5th Cir. 2015) ...............                                   6

Viveros v. State, 828 S.W.2d 2 (Tex. Crim. App. 1992)...........................                                6

CONSTITUTIONS & STATUTES

U.S. CONST. amend. IV ..............................................................................            6

U.S. CONST. amend. XIV ...........................................................................              6

TEX. CONST. art. I § 9 .................................................................................        6

TEX. CONST. art. I § 10 ...............................................................................         6

                                                            iv
CONSTITUTIONS & STATUTES                                                                                  PAGE

TEX. CODE CRIM. PRO. art. 38.23 ...............................................................                 6

TEX. R. OF EVID. 201..................................................................................          2

TEX. GOV’T CODE § 311.011 ......................................................................               11

TEX. TRANSP. CODE § 427.022 ...................................................................           passim

TEX. TRANSP. CODE § 471.004 ...................................................................                14

TEX. TRANSP. CODE § 544.001 ...................................................................          7, 15, 19

TEX. TRANSP. CODE § 544.004 ...................................................................           passim

AUSTIN CITY CODE § 14-8-54 ....................................................................                 7

Manuals

Texas Manual Uniform Traffic Control Devices, 2011 ed., revision 2 .....                                  passim




                                                          v
                         NO. 03-15-00065-CR
__________________________________________________________________

                IN THE COURT OF APPEALS FOR THE
                THIRD SUPREME JUDICIAL DISTRICT
                          AUSTIN, TEXAS
__________________________________________________________________

                       ELIZABETH ANN BLACK, APPELLANT

                                               VS.

                 THE STATE OF TEXAS, APPELLEE
__________________________________________________________________

                         ON APPEAL FROM
              COUNTY COURT-AT-LAW NUMBER FIVE
                      TRAVIS COUNTY, TEXAS
                    CAUSE NO. C1-CR-13-217530
__________________________________________________________________

                        APPELLANT’S BRIEF
__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      COMES NOW Appellant Elizabeth Ann Black, by and through her

undersigned counsel, and offers Appellant’s Brief, by which Appellant respectfully

shows the Court the following:

                              STATEMENT OF THE CASE

      Appellant was charged by information with driving while intoxicated alleged

to have occurred on October 12, 2013. C.R. 6, 9.1 Appellant filed a motion to


      1
          “C.R.” refers to the Clerk’s Record and “R.R.” refers to the Court Reporter’s Record.



                                                 1
suppress evidence contending the stop of her vehicle was without reasonable

suspicion or probable cause and therefore illegal. C.R. 33. After a pre-trial

evidentiary hearing, Judge Hohengarten denied Appellant’s motion to suppress

evidence on January 13, 2015. C.R. 35. Appellant entered a plea of no contest on

January 13, 2015. C.R. 38-39. She preserved her right of appeal and the trial court

certified her right to appeal those issues addressed at the hearing on her motion to

suppress. C.R. 51. Appellant subsequently filed this appeal. C.R. 43.

                                  STATEMENT OF FACTS

        At approximately 3:00 a.m. on Friday, October 11, 2013, Appellant was

traveling on the South Mopac service/feeder road. R.R.9; C.R. 6; State’s Exhibit 1,

22. Appellant was traveling toward downtown Austin on the South Mopac service

road. To avoid confusion regarding the cardinal directions see the aerial map

attached as attachment 1.3 Austin Police Department Officer Domingo Rodriguez

was parked in the left lane of the service road behind a barricade which was also

located in the left lane near the intersection of the service road and Andrew Zilker

Road. R.R. 8. The barricade was in place because of the Austin City Limits music

festival. C.R. 6. Officer Rodriguez’s vehicle was parked roughly parallel to and

behind the barricade. R.R. 8; State’s Exhibit 2. Officer Rodriguez’s overhead red

        2
         State’s Exhibits 1 and 2 refer to the exhibits admitted by the State during the pretrial hearing.
Both exhibits are part of Volume 3 of the Reporter’s Record.
        3
         Issac v. State, 982 S.W.2d 96, 99-100 (Tex. App. 1998) aff'd, 989 S.W.2d 754 (Tex. Crim. App.
1999) (appellate court may take judicial notice of map); TEX. R. OF EVID. 201.



                                                    2
and blue lights were activated in the steady on position; that is, his lights were on

but not flashing. R.R. 8, 19.4 The roadway in question consists of two lanes of

travel in the same direction. See R.R. 6-8; State’s Exhibit 2; Attachment 1.

Appellant was in the right lane of travel. State’s Exhibit 2. Officer Rodriguez

testified that there were no physical barricades in Appellant’s lane of travel. R.R. 9,

18, 19; State’s Exhibit 2. 5

        A sign north of Officer Rodriguez’ location (behind him and past the

barricade) was in place and read “Barton Springs Road to close through Zilker

Park Friday 12 a.m. until Monday 3 a.m.” R.R. 7, 21-22. A second sign was also in

place somewhere that said “northbound was shut down for thru traffic.” R.R. 7.

The record is not clear where this second sign was located or what northbound

roadway was shut down. Appellant drove by Officer Rodriguez at 2:59:41

according to the time-stamp in the upper right-hand corner of his in-car video. See

State’s Exhibit 1. Officer Rodriguez’s video makes it clear that there was

absolutely nothing in Appellant’s lane. After Appellant passed Officer Rodriguez’s

position he immediately followed and stopped her using his overhead lights and

siren. R.R. 10; State’s Exhibit 1. She was subsequently arrested for Driving While

        4
           Officer Rodriguez testified that he had his steady red and blue lights on. R.R. 19. This is
corroborated by his in-car video; it’s clear he turned his flashing red and blue lights on after Appellant’s
vehicle passed him. See State’s Exhibit 1 at the 02:59:55 timestamp.
        5
          There were no barrels, cones, barricades or any other barrier in Appellant’s lane of travel. In
State’s Exhibit 2 other vehicles are seen traveling on Barton Springs Road past the barricade as Officer
Rodriguez administers the SFST’s the Appellant.



                                                     3
Intoxicated. As Officer Rodriguez stopped Appellant, another officer took his

place at the barricade. R.R. 25. Unlike Officer Rodriguez, the backup officer used

his vehicle to block the right lane of travel. At the end of Officer Rodriguez’s

video he drives back toward the barricade and the backup officer’s vehicle can

clearly be seen in the proper position blocking vehicles from traveling in the right

lane. See State’s Exhibit 1. Officer Rodriguez testified and the State argued that his

reason for stopping Appellant was that she disregarded a barricade.6 R.R. 30.

                                   ISSUE PRESENTED

      Did Officer Rodriguez have reasonable suspicion upon which to justify

stopping Appellant’s vehicle?

                          SUMMARY OF THE ARGUMENT

      Officer Rodriguez detained Appellant for driving around a barricade in

violation of § 472.022 of the Texas Transportation Code. Though not raised by the

State at the motion to suppress hearing Appellant expects the State to argue that he

may have detained her for failing to comply with a traffic control device in

violation of § 544.004 of the Texas Transportation Code. Because Appellant’s lane

of travel was not blocked by a barricade, a reasonable person in Appellant’s

position would feel free to continue traveling in her lane of travel. Since Appellant

did not drive “around” a barricade to continue in her lane of travel she was not in


      6
          TEX. TRANSP. CODE § 427.022.



                                          4
violation of § 472.022. Moreover, the “barricade” and “signs” in question do not

meet the statutory definition as set out in § 472.022, consequently she was not in

violation of that statute. Though not raised by the State, it cannot be asserted that

Appellant failed to comply with a traffic control device in violation of § 544.044

because the devices in question were improper. Because Appellant committed no

traffic offense, Officer Rodriguez lacked the requisite reasonable suspicion to

detain Appellant.

                                  ARGUMENT

I. STANDARD OF REVIEW

      The proper standard for “reviewing a trial court’s ruling on a motion to

suppress is a bifurcated standard of review, giving almost total deference to a trial

court’s determination of historical facts and reviewing de novo the court’s

application of the law.” Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). This

means that a trial court’s ruling on a motion to suppress is generally reviewed by

an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim.

App. 1999). However, where the facts are undisputed (as in Appellant’s case) and

the case presents the court with a question of law the court is to apply a de novo

review. Id. (citing Guzman, 955 S.W.2d at 89). Thus, this Court is tasked with




                                         5
reviewing Judge Hohengarten’s decision de novo as there is no dispute regarding

the facts.

II. BURDEN OF PROOF

       The State bears the burden of proving that Officer Rodriguez had reasonable

suspicion to detain Appellant.7 “Warrantless seizures are ‘per se unreasonable

under the Fourth Amendment—subject only to a few specifically established and

well-delineated exceptions.’” United States v. Alvarado-Zarza, 782 F.3d 246, 249

(5th Cir. 2015) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967)); Terry v. Ohio, 392 U.S. 1, 27 (1968); U.S. CONST. amend. IV

& XIV; TEX. CONST. art. I §§ 9, 10; TEX. CODE CRIM. PRO. art. 38.23. When police

conduct a warrantless seizure “the burden is on the State to show that the officer

had reasonable suspicion to believe that an individual was violating the law.”

Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). “[R]easonable

suspicion requires ‘that there is something out of the ordinary occurring and some

indication that the unusual activity is related to a crime.’” Davis v. State, 947

S.W.2d 240, 244 (Tex. Crim. App. 1997) (quoting Viveros v. State, 828 S.W.2d 2,

4 (Tex. Crim. App. 1992)). A reasonable-suspicion determination should be made

by considering the totality of the circumstances. Castro, 227 S.W.3d at 741; Ford

v. State, 158 S.W.3d 488, 492-493 (Tex. Crim. App. 2005). Ultimately, the State


       7
           There is no dispute that Officer Rodriguez detained Appellant.



                                                     6
must prove that Officer Rodriguez had reasonable suspicion to believe Appellant

was committing a crime.

III. A PRIMER ON TRAFFIC CONTROL DEVICES

       A.      Texas MUTCD & Austin Transportation Criteria Manual.

       State and local traffic control device manuals offer guidance regarding the

proper placement of barricades. The Texas Transportation Code requires that the

Texas Transportation Commission adopt a manual and specifications for a uniform

system of traffic-control devices. TEX. TRANSP. CODE § 544.001. Attachment 2

consists of relevant excerpts from the current Texas Manual on Uniform Traffic

Control Devices (“Texas MUTCD”).8 The Austin City Code requires that if a

barricade is to be used, it shall conform to the Texas MUTCD. Austin City Code §

14-8-54. The City of Austin also promulgated a traffic control device manual
                                                    9
called the Transportation Criteria Manual.              Section 8.3.0 of the City of Austin

Transportation Criteria Manual also refers to the Texas MUTCD with regard to the

placement of signs. 10




       8
        Texas Manual Uniform Traffic Control Devices, 2011 ed., revision 2. The full version of the
Texas MUTCD can be found at: http://www.txdot.gov/ government/enforcement/signage/tmutcd.html.
       9
          Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria
_manual?nodeId=TRCRMA_S8TRCO.
       10
           Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria
_manual?nodeId=TRCRMA_S8TRCO.



                                                7
       B.     Definition of Barricade.

       The Texas MUTCD defines a barricade as a “portable or fixed device having

from one to three rails with appropriate markings and is used to control road users

by closing, restricting, or delineating all or a portion of the right-of-way.”

Attachment 2, pg. 9. The manual further notes that “Barricades may be used to

mark any of the following conditions: A. A roadway ends, B. A ramp or lane

closed for operational purposes, or C. The permanent or semi-permanent closure or

termination of a roadway.” Attachment 2, pg 4. Section 8.5.7(B)(4) of the Austin

Transportation Criteria Manual defines barricades as “a portable or fixed device

having from one (1) to three (3) rails with appropriate markings used to control

traffic by closing, restricting or delineating all or a portion of the right of way.” 11

Most importantly, as it pertains to the offense of failure to obey warning signs and

barricades found at section 472.022, a barricade is defined as:

       an obstruction: (A) placed on or across a road, street, or highway of
       this state by the department, a political subdivision of this state, or a
       contractor or subcontractor construction or repairing the road, street,
       or highway under authorization of the department or a political
       subdivision of this state; and (B) placed to prevent the passage of
       motor vehicles over the road, street or highway during construction,
       repair, or dangerous conditions.

TEX. TRANSP. CODE 472.022.



       11
           Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria
_manual?nodeId=TRCRMA_S8TRCO.



                                               8
      C. Proper use of barricades.

      The Texas MUTCD notes that barricades may also be used as Channelizing

Devices:

      The function of channelizing devices is to warn road users of
      conditions created by work activities in or near the roadway and to
      guide road users. Channelizing devices include cones, tubular
      markers, vertical panels, drums, barricades, and longitudinal
      channelizing devices. Channelizing devices provide for smooth and
      gradual vehicular traffic flow from one lane to another, onto a bypass
      or detour, or into a narrower traveled way. They are also used to
      channelize vehicular traffic away from the work space, pavement
      drop-offs, pedestrian or shared-use paths, or opposing directions of
      vehicular traffic.
Attachment 2 pg. 8.

      Barricades may also be used as a checkpoint or traffic control point. When

used in such a manner the Texas MUTCD requires a sign at the barricade. The

manual notes that:

      The TRAFFIC CONTROL POINT (EM-3) sign (see Figure 2N-1)
      shall be used to designate a location where an official traffic control
      point has been set up to impose such controls as are necessary to limit
      congestion, expedite emergency traffic, exclude unauthorized
      vehicles, or protect the public. The sign shall be installed in the same
      manner as the AREA CLOSED sign (see Section 2N.04), and at the
      point where traffic must stop to be checked. The standard STOP (R1-
      1) sign shall be used in conjunction with the TRAFFIC CONTROL
      POINT sign.
Attachment 2 pg. 6. Like the Texas MUTCD, The Austin Transportation Criteria

Manual requires that “[w]hen a roadway is legally closed but access must still be

allowed for local traffic, the [ ] barricade should not be extended completely across



                                          9
a roadway. A sign with the appropriate legend concerning permissible use by local
                                12
traffic shall be mounted.”           The Austin Transportation Criteria Manual further

states, “Where provision is made for access of authorized equipment and vehicles,

the responsibility for the Type III barricades should be assigned to a person to

ensure proper closure at the end of each work day.” 13

IV. APPELLANT DID NOT COMMIT A TRAFFIC OFFENSE.

       A. Appellant did not violate § 472.022 or § 544.004 of the Texas
          Transportation Code.
       The detention of Appellant can only be based on her alleged violation of

either § 472.022 (obeying warning signs and barricades) or § 544.004 (compliance

with traffic-control device) of the Texas Transportation Code. See C.R. 6, R.R. 9.

The focus of Officer Rodriguez’ testimony seems to be that he stopped Appellant

for driving around a barricade. R.R. 30; TEX. TRANSP. CODE § 472.022. Officer

Rodriguez testified that had Appellant not been arrested for driving while

intoxicated he would have issued her a citation for disregarding a barricade. R.R.

30.




       12
           Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria
_manual?nodeId=TRCRMA_S8TRCO.
       13
           Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria
_manual?nodeId=TRCRMA_S8TRCO.



                                               10
               1. Appellant did not commit the traffic offense of driving around
                  a barricade because she did not drive “around” the barricade
                  and the “barricade” did not meet the statutory definition of
                  barricade.
       Texas Transportation Code § 472.022 provides that a person commits an

offense if the person “drives around a barricade.” TEX. TRANSP. CODE § 472.022

(emphasis added). It is important to note that the legislature specifically used the

word “around” when drafting the statute. Id. The Code Construction Act requires

that “[w]ords and phrases shall be read in context and construed according to the

rules of grammar and common usage.” TEX. GOV’T CODE § 311.011; State v.

Chacon, 273 S.W.3d 375, 379 (Tex. App.—San Antonio 2008, no pet.) (statutes

are to be construed as written). The legislature has not criminalized “passing” a

barricade. Criminalizing driving “around” a barricade makes sense; this allows

officers to physically block off individual lanes of lanes of travel.14 Otherwise,

anytime a barricade was placed anywhere in the street the entire street would be

blocked. In this case Appellant did not drive around any barricades; her lane of

travel was clear, unobstructed, and her movement was unimpeded. Officer

Rodriguez testified that there were no barricades in Appellant’s lane of travel. R.R.

18. Had there been a barricade across both lanes of traffic and Appellant had left

the roadway and driven “around” the barricade she would have admittedly violated

§ 472.022. All Appellant did was “pass” a barricade in the adjoining lane. This is
       14
            The Texas MUTCD notes that one of the functions of a barricade is to close either “all or a
portion” of the roadway. See Attachment 2 pg. 9.



                                                  11
not a crime. Accordingly, because Appellant did not go “around” any barricade she

did not violate § 472.022.

       Recall that § 472.022 of the Texas Transportation Code sets out the

definition of “barricade” as it pertains to the offense of driving around a barricade.

See page 8 supra. In this case, Officer Rodriguez was positioned at the barricade

for the Austin City Limits music festival. C.R. 6. In order for there to be a violation

of § 472.022 the barricade must be in place “to prevent the passage of motor

vehicles over the road, street, or highway during construction, repair, or dangerous

conditions.” TEX. TRANSP. CODE § 472.022(e)(1)(B). Austin City Limits is a yearly

music festival15 and the placement of the barricade for this purpose does not fall

into the category of “construction, repair, or dangerous condition.” Officer

Rodriguez also failed to articulate sufficient facts that would indicate the barricade

was in place for any of the statutory reasons. Because of this Appellant did not

commit the offense of driving around a barricade.

       In addition to driving around a barricade, § 472.022 also makes it an offense

to: “disobey[] the instructions, signals, warnings, or markings of a warning sign.”

TEX. TRANSP. CODE § 472.022(a)(1).16 Like the definition of “barricade” the statute

also defines “warning sign” as a sign “on a road, street, or highway during


       15
            See http://www.aclfestival.com/.
       16
          See also pages 15-17 infra regarding sign placement as it pertains to § 544.004 of the Texas
Transportation Code.



                                                 12
construction, repair, or dangerous conditions.”          TEX. TRANSP. CODE §

472.022(e)(3). Officer Rodriguez testified to the presence of two signs. R.R. 7.

One sign said “northbound was shut down for thru traffic” and the other said

“Barton Springs Road to close through Ziker Park Friday 12 a.m. until Monday 3

a.m.” R.R. 7. Officer Rodriguez and the State failed to show that the signs were

placed there for the purpose of “construction, repair, or dangerous condition.” See

TEX. TRANSP. CODE § 472.022(e)(3). Because of this, the signs do not meet the

statutory definition and thus Appellant committed no offense by continuing

unimpeded in her lane of travel. There is no evidence regarding the location of the

sign that read “northbound shut down for traffic.” Additionally the language used

in this sign—northbound—is ambiguous at best as it did not specify which road

was shut down. Furthermore, neither sign would put a reasonable person on notice

that Barton Springs Road was closed.

      The sign reading “Barton Springs Road to close through Zilker Park Friday

12 a.m. until Monday 3 a.m.” (emphasis added) would lead a reasonable person to

believe Barton Springs Road was then open. The sign gave notice of what was to

happen in the future, i.e. “Barton Springs Road to close . . . Friday 12 a.m. . . .”,

not that Barton Springs Road is closed until Monday 3 a.m. A reasonable person

understands “12 a.m.” to be midnight, and when a reasonable person hears “Friday

at midnight” it is understood to mean at the end of the day on Friday or late Friday



                                         13
night. Appellant was stopped at about 3:00 a.m. on Friday morning 21 hours before

midnight Friday. A reasonable person would understand the sign to mean Barton

Springs Road was open Friday and would become closed at the end of the day, i.e.

midnight, on Friday.

        Section 472.022 of the Texas Transportation Code also requires that the

barricade or signs be placed by “the department [i.e. The Texas Department of

Transportation17], a political subdivision, or a contractor or subcontractor.” TEX.

TRANSP. CODE § 472.022(e)(1)(A) & (e)(3). There is no evidence that the signs or

barricades closing the road for the Austin City Limits music festival were placed

there by any of the entities listed in the statutes. Because of this, in addition to the

definition18 and purpose19 problems mentioned above, Appellant cannot have

legally violated § 472.022 and any detention of her vehicle for this is illegal.

                  2. Appellant did not commit the traffic offense of failing to
                     comply with a traffic-control device because the barricades,
                     Officer Rodriguez, and signage were not in the proper position.
        Though not raised by the State at the hearing on Defendant’s motion to

suppress evidence, a thorough examination of Officer Rodriguez’s detention of

Appellant requires an examination of § 544.004 of the Texas Transportation Code.


        17
           “’Department’ means the Texas Department of Transportation.” TEX. TRANSP. CODE §
471.004(f)(3).
        18
             Appellant did not go “around” any barricades.
        19
         The barricade and signs (if any) where not in place for the purpose of construction, repair, or
dangerous conditions.



                                                     14
Section 544.004 sets out the offense for failing to comply with a traffic-control

device. It provides that:

      (a) The operator of a vehicle or streetcar shall comply with an
          applicable official traffic-control device placed as provided by
          this subtitle unless the person is:
          (1) otherwise directed by a traffic or police officer; or
          (2) operating an authorized emergency vehicle and is subject to
               exceptions under this subtitle.
      (b) A provision of this subtitle requiring an official traffic-control
          device may not be enforced against an alleged violator if at the
          time and place of the alleged violation the device is not in proper
          position and sufficiently legible to an ordinarily observant
          person. A provision of this subtitle that does not require an
          official traffic-control device is effective regardless of whether a
          device is in place.

TEX. TRANSP. CODE § 544.004. Recall from section III above (pages 7-10) that

section 544.001 requires that the Texas Transportation Commission adopt a

manual for uniform traffic control devices. See TEX. TRANSP. CODE § 544.001.

Attachment 2 contains the relevant portions of the Texas MUTCD concerning the

use and placement of barricades and road closure signs. Reading §§ 544.004,

544.001, and the Texas MUTCD together, it is clear that the position of the

barricades, lack of proper signs, and the position of Officer Rodriguez’s vehicle

behind the barricade negate any reasonable suspicion that Appellant failed to

comply with a traffic control device.

      Section 544.004(b) requires that the traffic control device be in a “proper

position and sufficiently legible to an ordinarily observant person.” TEX. TRANSP.



                                        15
CODE § 544.004(b). In this case the barricades blocked all but one lane of travel.

R.R. 9, 18, State’s Exhibit 1. The Texas MUTCD and the Austin Transportation

Criteria Manual20 note that barricades may be used to close an entire roadway or

just a single lane. See Attachment 2, pg. 4. An ordinarily observant person in the

same position as Appellant would reasonably conclude that the lanes physically

blocked with a barricade were closed and the lane of travel without a barricade was

open. Officer Rodriguez’s car was not parked in the right lane nor were his

overhead flashing lights on. He was not standing outside of his car attempting to

direct traffic or notifying drivers in any way that the road was closed. There simply

was nothing about this scenario that would cause a reasonable person to believe the

right lane was closed. In fact, the scenario is one drivers commonly encounter,

especially in Austin, with constant construction downtown—a barricade blocking

one lane with an officer sitting in his car in the closed off-lane, forcing drivers to

move into and drive in the open lane.

       One of the functions that barricades also serve is to act as channelizing

devices. See Attachment 2, pg 8. Because Officer Rodriguez’s vehicle was

positioned behind the barricade instead of in the one free lane of travel the

barricades had the effect of channeling Appellant to the open right lane. Officer

Rodriguez’s backup officer took Officer Rodriguez’s initial position near the

       20
           Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria
_manual?nodeId=TRCRMA_S8TRCO.



                                               16
barricade when Officer Rodriguez left his position to stop Appellant. R.R. 25.

Unlike Officer Rodriguez, the backup officer used his vehicle to block the open

lane of travel. See State’s Exhibit 1; R.R. 18-19. Had Officer Rodriguez positioned

his vehicle correctly (like his backup officer) Appellant would have noticed that

her lane of travel was physically blocked.

       It is clear from the testimony of Officer Rodriguez that the intent of the

barricades and signs was to create a traffic control point for the Austin City Limits

music festival.21 The Texas MUTCD sets out how barricades and signs should be

used to create a traffic control point. Attachment 2, pg. 6. The Texas MUTCD

requires that a specific traffic control point sign22 be present where the traffic

control point has been set up to “impose such controls as are necessary to limit

congestion, expedite emergency traffic, exclude unauthorized vehicles, or protect

the public.” Texas MUTCD p 366 § 2N.05, 2011 ed., revision 2 (Attachment 2, pg.

6). Furthermore, the manual requires that the sign be installed “at the point where

traffic must stop to be checked.” Id (emphasis added). Where a road is completely

closed the manual requires that:

       The ROAD (STREET) CLOSED sign shall not be used where road user
       flow is maintained through the [TEMPORARY TRAFFIC CONTROL] zone

       21
          Other vehicles were clearly traveling on Barton Springs Road past the point of the barricade
and are visible in State’s Exhibit 2. See also R.R. 25-26. Officer Rodriguez indicated that his backup
officer was allowing vehicles through the barricade if they had the correct credentials. Id.
       22
            The manual refers to the sign as EM-3 and an example may be found at page 5 of Attachment
4.



                                                  17
        with a reduced number of lanes on the existing roadway or where the actual
        closure is some distance beyond the sign.

Texas MUTCD p 607 § 2N.05, 2011 ed., revision 2 (Attachment 2, pg. 7). To put it

another way, where a road is going to be temporarily closed, there must be a sign

at the point where the road is closed; this is especially true if some traffic will be

allowed through the closure.

        Recall that in Appellant’s case the intent of the barricade was to allow

people affiliated with the Austin City Limits music festival to pass through the

checkpoint. It was essentially a temporary traffic control zone contemplated by the

Texas MUTCD. There was no evidence that there was a road closed sign at the

barricades as required by the Texas MUTCD. Officer Rodriguez testified that there

was a large sign behind his position that read “Barton Springs Road to be closed

through Zilker Park Friday 12 a.m. until Monday 3 a.m.” R.R. 22, 23.23 This sign is

past the point of the barricade and the use of the words “to be closed” and “Friday

12 a.m.” leads a reasonable person to believe that it is referencing a future time.

Officer Rodriguez also testified to the presence of a second mobile sign that read

“northbound was shut down for through traffic.” R.R. 7. The location of the second

sign is unclear from the record and it is unclear what “northbound” referred to.

There is nothing in the record to indicate whether the sign was in a position where


        23
           The support pole for the sign is barely visible in Officer Rodriguez’s in-car video. See State’s
Exhibit 1 (the pole is visible between the two orange signs the time stamp of 2:59:54).



                                                    18
Appellant or a reasonable person would have seen it. Officer Rodriguez’s

testimony indicates that the second sign was a mobile sign that could be towed by a

truck. R.R. 7. This is not the road closed sign that is contemplated by the Texas

MUTCD. See Attachment 2, pg. 5-6 (referencing a traffic control point sign).

        Additionally, based on Officer Rodriguez’s testimony, the sign does not say

the road is completely closed, just closed to through traffic. Assuming the second

sign that said the road was closed to through traffic was in a location visible to

Appellant prior to the barricade, Officer Rodriguez still did not know whether

Appellant was going through the park or whether her destination was somewhere

within the park. If the road was truly blocked for through traffic then the situation

is analogous to Appellant driving on a dead end street. Once she reached the end

she would then simply turn her vehicle around and come back the way she came.

There is nothing illegal about turning down a dead-end street.

        The transportation code specifically provides that the failure to obey a traffic

control device is only a crime if the device is sufficiently legible to the driver. TEX.

TRANSP. CODE § 544.004. The purpose of the Texas MUTCD is to ensure that

drivers understand traffic control devices.24 If the device does not comply with the

Texas MUTCD then it cannot be inferred that the driver understood the device.

Thus, it cannot be said that Appellant failed to comply with a traffic control device.

        24
            This is why the creation of the Texas MUTDC is codified in the same chapter as the offense of
failure to comply with a traffic-control device. See TEX. TRANSP. CODE §§544.001 et. seq.



                                                   19
Accordingly, Officer Rodriquez’s detention of Appellant for failure to comply with

a traffic control device is illegal.

V. CONCLUSION

        There was no reasonable suspicion to believe Appellant committed any

crime prior to her stop. She did not fail to obey any traffic control device, nor did

she drive around any barricade.25 Her lane of travel was wide open. There was no

barricade or police car blocking her lane. The officer’s car was parked in the

adjoining lane without flashing lights, and the officer was not positioned outside

his car making any effort to direct or stop traffic. Because Officer Rodriguez did

not properly block the right lane of travel, Appellant, as any reasonable person

would, felt free to continue in the right lane of travel. The sign did not say Barton

Springs Road was closed; it said it was to be closed beginning Friday at 12:00

a.m. which a reasonable person would understand to mean Friday at midnight, a

time not to occur until 21 hours later. The barricades, signage, and Officer

Rodriquez’s position would lead an ordinary person to believe the right lane of

travel was still open. Since Appellant did not commit a traffic offense the detention

of her vehicle was illegal and any evidence gathered as a result of her detention

should be suppressed.



        25
           Furthermore, the offense of driving around a barricade requires that the barricade be in place
for certain statutory reasons, none of which were applicable in this case.



                                                   20
                                   PRAYER

      For the reasons set out above, Appellant respectfully prays this Court

overrule the trial court’s ruling and order that Appellant’s motion to suppress be

granted.

                                      Respectfully submitted,



                                      ___________________________
                                      MERIL “GENE” ANTHES, JR.
                                      State Bar No. 24040125
                                      CHRISTOPHER M. GUNTER
                                      State Bar No. 08624600
                                      GUNTER, BENNETT & ANTHES, P.C.
                                      600 West Ninth Street
                                      Austin, Texas 78701-2212
                                      (512) 476-2494
                                      (512) 476-2497 Facsimile
                                      Attorneys for Appellant




                                       21
                      CERTIFICATE OF COMPLIANCE

      I certify that this document was prepared with Microsoft Word, and that,

according to that program’s word-count function, the sections covered by Texas

Rule of Appellate Procedure 9.4(i) contain 4,294 words.



                                      ____________________________
                                      MERIL “GENE” ANTHES, JR.
                                      CHRISTOPHER M. GUNTER




                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Appellant’s

Brief sent via certified mail to PO Box 1748, Austin, Texas 78767 to Giselle

Horton, Assistant County Attorney, Travis County, P.O. Box 1748, Austin, Texas

78767, on this the 10th day of June, 2015.



                                      ____________________________
                                      MERIL “GENE” ANTHES, JR.
                                      CHRISTOPHER M. GUNTER




                                        22
Attachment 1




          Elizabeth Ann Black v. State
                        Attachment 1
                          Page 1 of 2
Elizabeth Ann Black v. State
              Attachment 1
                Page 2 of 2
Attachment 2




          Elizabeth Ann Black v. State
                        Attachment 2
                          Page 1 of 9
Elizabeth Ann Black v. State
              Attachment 2
                Page 2 of 9
Elizabeth Ann Black v. State
              Attachment 2
                Page 3 of 9
Elizabeth Ann Black v. State
              Attachment 2
                Page 4 of 9
Elizabeth Ann Black v. State
              Attachment 2
                Page 5 of 9
Elizabeth Ann Black v. State
              Attachment 2
                Page 6 of 9
0


    Elizabeth Ann Black v. State
                  Attachment 2
                    Page 7 of 9
Elizabeth Ann Black v. State
              Attachment 2
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Elizabeth Ann Black v. State
              Attachment 2
                Page 9 of 9
                                          June 12, 2015

Honorable Jeffrey D. Kyle                                                Via Electronic Delivery
Clerk of the Court
Austin Court of Appeals
Price Daniel Sr. Building
209 West 14th Street, Room 101
Austin, Texas 78701

                                             RE:    The State of Texas
                                                    vs.
                                                    Elizabeth Black
                                                    No. 03-15-00065-CR
                                                    On Appeal from Travis County
                                                    Court-at-law Number Five
                                                    Cause No. C1CR-13-217530


Dear Mr. Kyle:

       Enclosed for filing please find Appellant’s Brief in the above-referenced cause.

       Thank you for your assistance in this matter. Please feel free to contact me should you
have any questions.

                                             Best regards,



                                             Gene Anthes

cc:    Giselle Horton
       Assistant Travis County Attorney
       P.O. Box 1748
       Austin, Texas 78767
