                                                                              PD-0982-16
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 9/23/2016 11:40:18 PM
                                                              Accepted 9/26/2016 3:53:20 PM
                                                                              ABEL ACOSTA
                       CASE NO. PD-0982-16                                            CLERK
__________________________________________________________________

               IN THE COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS
__________________________________________________________________

                 TAYLOR MARTIN KORB, Appellant
                                V.
                   THE STATE OF TEXAS, Appellee
__________________________________________________________________

                  On Petition for Discretionary Review from
                          The First Court of Appeals
       In No. 01-15-00512-CR Affirming the Trial Court’s Judgment in
 Cause No. 1980492 from the County Criminal Court at Law Number Three (3)
                            Harris County, Texas
__________________________________________________________________

      APPELANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________


DAN KRIEGER                                COLM A. KEANE
TBN: 24064243                              TBN: 24085408
215 East Galveston Street                  17225 El Camino Real, Suite 320
League City, Texas 77573                   Houston, Texas 77058
(281) 332-7630 Phone                       (281) 486-8125 x2 Phone
(281) 332-7877 Facsimile                   (281) 480-0885 Facsimile
dan@kriegerlawfirm.com                     colm@krieger-ongert.com

ATTORNEYS FOR APPELLANT,
TAYLOR MARTIN KORB

                                               September 26, 2016




                      ORAL ARGUMENT REQUESTED
            IDENTITY OF JUDGES, PARTIES AND COUNSEL

Presiding Judge
The Honorable Natalie Fleming
County Criminal Court at Law Number Three (3)
Houston, Harris County, Texas

Attorneys for Appellee         (State of Texas)
Napoleon Wilson Stewart, II (at trial)
Molly Katharine Wurzer         (at trial)
Alan Curry                     (on appeal)
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002

Attorneys for Appellant
Dan Krieger                    (at trial and on appeal)
Christopher Morton             (at trial)
215 E. Galveston St.
League City, Texas 77573

Colm A. Keane                 (on appeal)
17225 El Camino Real, Suite 320
Houston, Texas 77058

Appellant
Taylor Martin Korb




                                        ii
                                    TABLE OF CONTENTS

IDENTITY OF JUDGES, PARTIES AND COUNSEL ..................................... ii

TABLE OF CONTENTS .................................................................................... iii

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

STATEMENT REGARDING ORAL ARGUMENT ........................................ 1

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

STATEMENT OF PROCEDURAL HISTORY ................................................ 2

APPELLANT’S GROUNDS FOR REVIEW .................................................... 3

APPELLANT’S FIRST GROUND FOR REVIEW (RESTATED) .................. 4

        THE COURT OF APPEALS ERRED IN ACTING AS A FINDER OF
        FACT BY INFERRING FACTS UNSUPPORTED BY THE RECORD. .................... 4

APPELLANT’S SECOND GROUND FOR REVIEW (RESTATED) ............. 4

        THE COURT OF APPEALS ERRED IN FINDING REASONABLE
        SUSPICION TO JUSTIFY AN INVESTIGATORY STOP OF APPELLANT. ............. 4

ARGUMENT AND REASONS FOR REVIEW ............................................... 4

PRAYER FOR RELIEF ..................................................................................... 8

CERTIFICATE OF COMPLIANCE .................................................................. 10
CERTIFICATE OF SERVICE ........................................................................... 10
APPELLANT’S APPENDIX ............................................................................. A




                                                     iii
                           INDEX OF AUTHORITIES

CASES

Crain v. State,
       315 S.W.3d 43, 52 (Tex. Crim. App. 2010)………………………………. 7

Korb v. State,
      01-15-00512-CR, 2016 WL 2753509 (Tex. App.-Houston [1st Dist.] 2016)
      (mem. op., not designated for publication)………………………… 2, 4, 6, 7

Hereford v. State,
      339 S.W.3d 111, 119 (Tex. Crim. App. 2011)……………………………5, 6

Pipkin v. State,
      114 S.W.3d 649, 652 (Tex. App.—Fort Worth 2003, no pet.) ……………. 8

Romero v. State,
      800 S.W. 2d 539, 544 (Tex. Crim. App. 1990…………………………….. 6

Taflinger v. State,
      414 S.W.3d 881, 884 (Tex.App.–Houston [1st Dist.] 2013, no pet.) ......... 8, 9

Terry v. Ohio,
       392 U.S. 1, 21–22 (1968)………………………………………………….. 7

United States v. Sokolow,
       490 U.S. 1, 7 (1989)………………………………………………………. 7


RULES

Tex. R. App. P. 68.2 ……………………………………………………………… 2

Tex. R. App. P. 66.1 ……………………………………………………………… 3

Tex. R. App. P. 66.3(f) …………………………………………………………… 6


                                         iv
                STATEMENT REGARDING ORAL ARGUMENT

       Appellant requests oral argument as it will assist the Court in developing the

issues and fashioning the proper relief. Oral argument would be of substantial

assistance to this Court because case presents an important issue regarding the role

of the court of appeals in inferring the trial court’s findings of fact in a motion to

suppress and a police officer’s reasonable suspicion for an investigative detention.


                             STATEMENT OF THE CASE

       Mr. Taylor Martin Korb (“Appellant”) was charged with Driving While

Intoxicated, a class B misdemeanor. (C.R. at 5).1 Appellant filed a motion to

suppress the traffic stop on March 13, 2015. (C.R. at 23-24). The trial court heard

Appellant’s motion to suppress on April 28, 2015 and denied the motion to suppress

the traffic stop. (III R.R. at 42). A jury trial commenced immediately after the

suppression hearing and on the same date. (C.R. at 27-32). Defendant was convicted

of Driving While Intoxicated on April 29, 2015 and sentenced by the Court to one

hundred eighty days in the Harris County Jail, probated for twelve months and a

$500 fine. (C.R. at 41-42).

       Appellant appealed his conviction and sentence to the First Court of Appeals



1
 “C.R.” Will be used to reference the Clerk’s Record. “R.R.” will be used to reference the
Reporter’s Record from Appellant’s trial.
                                               1
in Case No. 01-15-00512-CR, and the Court affirmed the trial court’s judgment on

May 10, 2016.

                   STATEMENT OF PROCEDURAL HISTORY

         The order of the trial court was affirmed by the First Court of Appeals in an

opinion delivered May 10, 2016.         Korb v. State, 01-15-00512-CR, 2016 WL

2753509 (Tex. App.—Houston [1st Dist.] 2016)(mem. op., not designated for

publication). The motion for rehearing was denied on July 25, 2016, and the motion

for en banc reconsideration was denied on July 25, 2016. Appellant’s Motion for an

extension of time to file the Petition for Discretionary Review was granted on

August 25, 2016. This Petition for Discretionary Review will be filed on or before

the extended deadline of September 23, 2016, pursuant to Tex. R. App. P. 68.2.

         The Appellant presents two (2) grounds for review before this Honorable

Court.




                                           2
                       CASE NO. PD-0982-16
__________________________________________________________________

               IN THE COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS
__________________________________________________________________

                 TAYLOR MARTIN KORB, Appellant
                                V.
                   THE STATE OF TEXAS, Appellee
__________________________________________________________________

      APPELANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      COMES NOW, TAYLOR MARTIN KORB, Appellant in the above-styled

and numbered cause of action, by and through counsel of record, Dan Krieger, and

pursuant to Tex. R. App. P. 66.1, respectfully urges this Court to grant discretionary

review of this cause, and in support thereof would show unto this Honorable Court

the following:

                           GROUNDS FOR REVIEW

      1. The Court of Appeals Erred In Acting As A Finder Of Fact By Inferring
         Facts Unsupported By The Record

      2. The Court of Appeals Erred In Finding Reasonable Suspicion To Justify
         An Investigatory Stop of Appellant




                                          3
       APPELLANT’S FIRST GROUND FOR REVIEW (RESTATED)

      1. The Court of Appeals Erred In Acting As A Finder Of Fact By
         Inferring Facts Unsupported By The Record


     APPELLANT’S SECOND GROUND FOR REVIEW (RESTATED)

      2. The Court of Appeals Erred In Finding Reasonable Suspicion To
         Justify An Investigatory Stop of Appellant

                 ARGUMENT AND REASONS FOR REVIEW


      Appellant was convicted of Driving While Intoxicated and sentenced to

community supervision. Appellant sought relief at trial in the form of a motion to

suppress because no articulable facts to establish reasonable suspicion for the stop

of Appellant’s vehicle to take place were presented. The trial court erred in denying

his motion to suppress and did not make any findings of fact. The facts the Court of

Appeals inferred were not supported by the record or any findings of fact to establish

reasonable suspicion. Instead, the Court created facts unsupported by the record and

found evidence of burglaries and criminal mischief in the area where Appellant’s

vehicle was stopped and linked it to Appellant. Korb v. Texas, Slip Op. at 5-6.

   A. PRECEDENT REQUIRES A REVIEWING COURT TO INFER FACTUAL FINDINGS
      AS LONG AS THEY ARE SUPPORTED BY THE RECORD
      When a trial court hears and rules upon a Motion to Suppress and makes no

findings of historical fact, the appellate court will infer factual findings implicit in

                                           4
the trial court’s conclusion as long as the implied findings are supported by the

record. Hereford v. State, 339 S.W.3d 111, 119 (Tex. Crim. App. 2011).

      During the Motion to Suppress hearing, Officer Galvan of the Pasadena Police

Department testified he was on-duty, working patrol, and sent to a residential

neighborhood in Pasadena in regards to a 911 caller reporting a small, light-colored

truck driving in the area on August 28, 2014 at approximately midnight. (III R.R. at

12). Officer Galvan stated he was familiar with the neighborhood and criminal

mischief and burglaries occur there. (III R.R. at 9). No evidence was presented

regarding the officer’s familiarity with these crimes with respect to the area, nor the

number, dates, times, types, or proximity of the alleged crimes to the traffic stop.

Officer Galvan testified that at the time of this call no criminal activity was reported

and no illegal activity was reported. (III R.R. at 22, 27).

      Officer Galvan testified that he arrived in the area and saw the Appellant

driving a light colored truck and using a cellular phone. (III R.R. at 13-14). Officer

Galvan reported that the 911 caller was identified by name and phone number. (III

R.R. at 13). Officer Galvan testified that caller reported he had seen the vehicle three

times over a period of ten minutes, with no other report of any other type of activity,

criminal or otherwise. (III R.R. at 22). The caller was not presented as a witness at

the suppression hearing or at trial.

                                           5
      The Court of Appeals improperly inferred factual findings that were not

supported by the record and acted as the fact finder by making its own finding of

fact to affirm the trial court’s denial of the motion to suppress. The Court of Appeals

found that Officer Galvan had “knowledge of facts which, given the totality of the

circumstances, raised a reasonable suspicion that appellant was engaging or about to

engage in criminal acts, such that the officer was justified in making the

investigatory stop.” Korb v. State, Slip Op. at 6. By Officer Galvan’s own

testimony, he did not have enough information to have a reasonable suspicion, solely

based on Appellant driving around, that Appellant had committed a crime or was

going to commit a crime. (III R.R. at 29).

      On appeal, the appellate court should not engage in its own factual review,

but decide whether the trial judge’s fact findings are supported by the record.

Romero v. State, 800 S.W. 2d 539, 544 (Tex. Crim. App. 1990). If the trial court did

not make fact findings, its implied findings inferred by the Court of Appeals must

be supported by the record. Hereford at 119.

      By making its own finding of fact, the Court of Appeals has so far departed

from the accepted and usual course of judicial proceedings to call for an exercise of

the Court of Criminal Appeals power of supervision. See Tex. R. App. P. 66.3(f).

Accordingly, this petition should be granted and the case remanded to the Court of

Appeals to conduct a review limited to the trial court’s record.
                                         6
   B. THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND PRECEDENT
      REQUIRE REASONABLE SUSPICION FOR A VALID WARRANTLESS
      DETENTION OF A PERSON
      Under the Fourth Amendment, a warrantless detention of a person that

amounts to less than a full-blown custodial arrest must be justified by a reasonable

suspicion. Terry v. Ohio, 392 U.S. 1, 21–22 (1968).

       A police officer has reasonable suspicion to detain a person if he has specific,

articulable facts that, combined with rational inferences from those facts, would lead

him reasonably to conclude that the person detained is, has been, or soon will be

engaged in criminal activity. United States v. Sokolow, 490 U.S. 1, 7 (1989); Crain

v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).

      This standard is an objective one that disregards the actual subjective intent

of the arresting officer and looks, instead, to whether there was an objectively

justifiable basis for the detention. Here, the Court of Appeals erred by creating its

own finding of fact by looking into the mind of the officer and discovering

“knowledge of facts, which, given the totality of the circumstances, raised a

reasonable suspicion that appellant was engaging or about to engage in criminal

acts.” Korb v. State, Slip Op. at 5-6.

      This Honorable Court has held that “[n]either time of day nor level of criminal

activity in an area are suspicious in and of themselves; the two are merely factors to

be considered in making a determination of reasonable suspicion.” Crain v. State at

                                          7
53. This Court has further found that those factors do not constitute reasonable

suspicion. Id.

      Nothing in the record shows Appellant was engaged in suspicious or illegal

activity and there was no reasonable suspicion; the caller reported activity, but not

criminal activity. Officer further testified that he would need further articulable facts

to determine if a crime was going to be committed. (III R.R. at 29). The Appellant

did not drive erratically, he did not look into vehicles, he did not pull into residential

driveways and leave – he simply drove by. (III R.R. at 27).

      The First Court of Appeals further improperly applied the analysis in Pipkin

to this matter despite clearly distinguishable facts involving clear criminal activity

versus no report of any type of criminal activity. In Pipkin, the caller observed per

se illegal activity in that Pipkin was obstructing traffic by driving too slowly and

being bent over lighting a crack pipe to smoke cocaine. Pipkin v. State, 114 S.W.3d

649, 652 (Tex. App.—Fort Worth 2003, no pet.). In contrast here, no illegal activity

was reported in this matter - simply a person driving down the street. This case is

also fundamentally and factually distinguishable from the holdings in both Pipkin

and Taflinger v. State. In Taflinger, there was a specific report of wrongdoing – a

store clerk, well-known to the officer, observed an intoxicated person driving away

from the store. Taflinger v. State, 414 S.W.3d 881, 884 (Tex.App.–Houston [1st

Dist.] 2013, no pet.). The officer observed the driver driving immediately after the
                                          8
report and believed in good faith that he observed the driver commit a traffic

violation. Id. at 886. Here, in contrast, there was no report of intoxication, erratic

driving, or other type wrongdoing – simply driving.

      There was no illegal or suspicious activity committed by the Appellant

reported by the 911 caller apart from the Appellant simply driving down the street

three times over the period of 10 minutes. At trial, the arresting officer in this matter

made conclusory statements that Appellant’s actions were suspicious, but there were

no specific articulable facts that reasonably support these claims, despite the officer

having numerous opportunities to articulate such facts. Furthermore, there were no

specific descriptions of the vehicle, driver, or license plate of the vehicle that would

affirmatively link the vehicle Appellant was driving to the vehicle which was

described by alleged caller.

                               PRAYER FOR RELIEF

      Appellant prays this Honorable Court grant this Petition for Discretionary

Review. Following the grant of review, Appellant prays that the judgment of the

Court of Appeals be reversed and a new trial ordered, or the case remanded for

further review.




                                           9
Respectfully submitted,
LAW OFFICE OF DAN KRIEGER
215 E. Galveston St.
League City, Texas 77573
(281) 332-7630 Tel.
(281) 332-7877 Fax

By: /s/ Dan Krieger
  Dan Krieger
  State Bar No. 24064243
  dan@kriegerlawfirm.com
  Colm A. Keane
  State Bar No. 24085408
  colm@krieger-ongert.com
  Attorneys for Appellant




 10
                      CERTIFICATE OF COMPLIANCE
      I certify that this document was produced on a computer using Microsoft

Word and contains 2,570 words, and 24 pages, as determined by the computer

software's word-count function, excluding the sections of the document listed in

Texas Rule of Appellate Procedure 9.4(i)(1). This document complies with the

typeface requirements of rule 9.4(e), as it is printed in a conventional 14-point

typeface with footnotes in 12-point typeface.

                                                /s/ Dan Krieger
                                                Dan Krieger




                         CERTIFICATE OF SERVICE

      A true and correct copy of the above and foregoing Appellant’s Petition for

Discretionary Review has been forwarded to the following persons, in accordance

with the TEXAS RULES OF APPELLATE PROCEDURE, on the 23rd day of

September, 2016:

            Alan Curry
            Harris County District Attorney’s Office
            1201 Franklin Street
            Houston, Texas 77002


                                                /s/ Dan Krieger
                                                Dan Krieger

                                        11
                ____________________________

                  APPELLANT’S APPENDIX
                _____________________________

                    LIST OF DOCUMENTS

1. First Court of Appeals’ Opinion of May 10, 2016 ……………………TAB 1




                              A
TAB 1


 B
C
D
E
F
G
H
