                                                                                         ACCEPTED
                                                                                    03-14-00194-CV
                                                                                           3879773
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                               1/23/2015 1:51:49 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK



 
                                                                     FILED IN
                              No. 03-14-00194-CV              3rd COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                                                              1/23/2015 1:51:49 PM
                                                                JEFFREY D. KYLE
                                                                      Clerk
                         In the Court of Appeals
                     Third District of Texas — Austin
 
 
              TEXAS DEPARTMENT OF PUBLIC SAFETY,
                         Appellant
                           V.

                        CODY LITTLEPAGE,
                           Appellee
 
 
 

             Appealed from County Court at Law Number 2, Williamson
             County, Texas; Before the Honorable Timothy Wright
 
 
                         APPELLEE’S BRIEF

    Amber D. Farrelly
    Texas Bar No. 24069671
    BAIRD☆FARRELLY CRIMINAL DEFENSE, PLLC
    2312 Western Trails Blvd Ste. 102-A
    Austin, TX 78745
    Tel. 512-804-5911
    adfelaw@gmail.com
     
                     Attorney for Appellee, Cody Littlepage
 
 
                      ORAL ARGUMENT REQUESTED




                                        1 
 
                                   No. 03-14-00194-CV
 
                    TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                 Appellant

                                             V.

                                  CODY LITTLEPAGE,
                                      Appellee
 
 
 
 
                       REQUEST FOR ORAL ARGUMENT
 
 
 



      Appellee, Cody Littlepage, believes that oral argument might benefit the Court

in this case and respectfully requests that it be granted.




                                            2 
 
                TABLE OF CONTENTS

REQUEST FOR ORAL ARGUMENT……………………………………………....2
TABLE OF CONTENTS…………………………………………………………..…3
INDEX OF AUTHORITIES…………………………………………………….……4
INDEX OF ABBREVIATIONS………………………………………………...……5
STATEMENT ON ORAL ARGUMENT………………………………….…………6
APPELLEE’S BRIEF………………………………………………………….……..7
STATEMENT OF FACTS………………………………………………..………….8
SUMMARY OF THE ARGUMENT…………………………………………..…….9
CONCLUSION…………………………………………………………………...…23
PRAYER………………………………………………………………………….…23
CERTIFICATE OF COMPLIANCE……………………………………………..…24
CERTIFICATE OF SERVICE…………………………………………………...…25
INDEX OF APPENDICES…………………………………………………….……26




                        3 
 
                           INDEX OF AUTHORITIES 
 
CONSTITUTIONS
 
U.S. CONST. Amend. V, VI, XIV
 
Tex. Const. art. I, §10 and 19

STATUTES

Rehabilitation Act of 1973, 29 U.S.C. §794

The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101

TEX. TRANS. CODE § 724.015

TEX. TRANS. CODE § 724.032

TEX. TRANS. CODE § 724.042
 
 
CASES
 
Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App. 1993)……………………..16

Ex parte Ard, No. AP-75,704, slip op. at 2,
 (Tex.Crim.App. March 11, 2009)(opinion not designated for publication)….…....10

Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App. 2008)………………..…….…9

Landin v. Tex. Dep’t of Pub. Safety, 475 S.W.2d 594
 (Tex.Civ.App.—Dallas 1971, no writ)………………………………………….....19

Lane v. State, 951 S.W.2d 242, 244 (Tex.App.-Austin 1997, no pet.)……………...18

Nebes v. State, 743 S.W.2d 729 (Tex.App. 1988)…………………………………..16

Raesner v. Tex. Dep’t of Pub. Safety, 982 S.W.2d. 131, 132
 (Tex. App.-Houston [1st Dist.] 1998, pet. Denied)…………………………...…….9

                                         4 
 
State v. Amaya, 221 S.W.3d 797
  (Tex.App.-Fort Worth 2007, pet. Ref’d)……………………………………….….19

TX DPS v. Jauregui, 176 S.W.3d 846, 848-849 (Tex.App. 2005)………13, 16, 18, 19



                       INDEX OF ABBREVIATIONS

ADA                   Americans with Disabilities Act
ASL                   American Sign Language
ALJ                   Administrative Law Judge
ALR                   Administrative Law Review
 




                                      5 
 
                      STATEMENT ON ORAL ARGUMENT
 
    The Court should grant oral argument for the following reasons:
 
 
         a.   The issues presented have not previously been authoritatively decided.
 
 
              See Tex. R. App. P. 39.1(b).
 
 
         b.   Oral argument will give the Court a more complete understanding of

              the facts presented in this appeal. See Tex. R. App. P. 39.1(c).

         c.   Oral argument will allow the Court to better analyze the complicated

              legal issues presented in this appeal. See Tex. R. App. P. 39.1(c).

         d.   Oral argument will significantly aid the Court in deciding this case.
 
 
              See Tex. R. App. P. 38.1(e), 39.1(d).




                                             6 
 
                           No. 03-14-00197-CV
                 _____________________________________
                TEXAS DEPARTMENT OF PUBLIC SAFETY,
                              APPELLANT
                                   V.
                          CODY LITTLEPAGE,
                               APPELLEE
         _____________________________________________________

                              APPELLEE’S BRIEF



      Cody Littlepage, appellee, respectfully submits his brief in response to

appellant’s appeal.

      For clarity and brevity, the appellee, Cody Littlepage, will maintain references

as established by the Texas Department of Public Safety. Citations to Appellant’s

brief will be AB at [page number].

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

                                          7 
 
                                                               STATEMENT OF FACTS

              Deputy Reynaldo Ramirez arrested Cody Littlepage for driving while

intoxicated and was responsible for providing the DIC-24 and requesting a breath or

blood specimen. The evidence shows Littlepage is deaf1 and communicates via

American Sign Language (ASL).2 Littlepage requested an ASL interpreter by

referring to the “deaf law.”3 Nevertheless, Deputy Ramirez, who does not speak

ASL, did not request an interpreter.4

              After an extensive and difficult struggle with communication via written

word,5 often times where it seemed Littlepage did not understand,6 Deputy Ramirez

arrested Littlepage. Deputy Ramirez placed Littlepage’s hands behind his back,

handcuffed him and placed him in the patrol vehicle.7 Deputy Ramirez testified that

he showed Littlepage the DIC-24 and orally requested a specimen.8 Deputy Ramirez

did not tell Littlepage what the DIC-24 was or its purpose.9 Littlepage glanced at the

DIC-2410 before Deputy Ramirez stated that Littlepage’s non-response would be




                                                            
1
     CR 54, 58-59, 76
2
  CR 70
3
  CR 55, 74
4
  CR 63
5
  CR 55
6
  CR 64, 71, 79
7
  CR 77
8
  CR 77
9
   CR 74
10
   CR 77
                                                                       8 
 
considered a refusal.11 Due to his deafness, Littlepage was unable to hear anything

requested or stated by Deputy Ramirez. Further, Littlepage was physically unable to

respond via sign language due to being handcuffed with his hands behind his back.

              Despite the Department’s position, the evidence shows that Littlepage did not

refuse to provide a breath or blood specimen,12 and given the unique circumstances

of this situation, does not authorize a license suspension.

                                                               ARGUMENT


I. THE PROCEEDINGS BELOW

              The Administrative Law Judge (ALJ) found that Littlepage was “properly

asked to submit a specimen of breath,”13 and that he refused.14 Littlepage appealed to

Williamson County Court Two, contending Littlepage was not properly asked to

submit a specimen, and there was no showing that Littlepage refused to provide a

specimen. Judge Tim Wright agreed and reversed the decision of the ALJ. Judge

Wright was not required to accept or defer to findings not supported by the record

and was authorized to make contrary findings. Ex parte Ard, No. AP-75,704, slip op.

at 2, (Tex.Crim.App. March 11, 2009)(opinion not designated for publication), citing

Ex parte Reed, 271 S.W.3d at 727.

                                                            
11
   CR 77-78
12
   CR 78 
13
   ALJ Decision dated October 3, 2013
14
   Id.
                                                                   9 
 
    II. REFUSAL
 
              The ultimate issue in this case is whether Littlepage knowingly and

intelligently refused to provide a breath sample. Transportation Code § 724.032(a)

notes two ways a person can refuse:


                             If a person refuses to submit to the taking of a specimen, whether
                             expressly or because of an intentional failure of the person to give
                             the specimen.

              Just as it is the State’s burden to show voluntary submission of a breath test, it

is the State’s burden to show a refusal. Texas Transportation Code §724.042 states

that the issues at a hearing are (1) reasonable suspicion or probable cause existed to

stop or arrest the person; (2) probable cause existed to believe that the person was

operating a motor vehicle in a public place while intoxicated; (3) the person was

placed under arrest by the officer and was requested to submit to the taking of a

specimen; and (4) the person refused to submit to the taking of a specimen on request

of the officer. (emphasis added).

              The Department concedes that Transportation Code 724.01515 provides that

when a driver is arrested for driving while intoxicated, he must be warned of the
                                                            
15
  § 724.015. INFORMATION PROVIDED BY OFFICER BEFORE REQUESTING SPECIMEN.
Before requesting a person to submit to the taking of a specimen, the officer shall inform the person
orally and in writing that:
        (1) if the person refuses to submit to the taking of the specimen, that refusal may be
admissible in a subsequent prosecution;
        (2) if the person refuses to submit to the taking of the specimen, the person's license to
operate a motor vehicle will be automatically suspended, whether or not the person is subsequently
prosecuted as a result of the arrest, for not less than 180 days;
 
                                                               10 
 
statutory consequences of refusal to provide a breath or blood specimen.16 The issue

in this case is whether Deputy Ramirez properly provided the warnings to Littlepage,

a deaf person, and whether Littlepage refused to submit to the taking of a blood or

breath test. Littlepage contends that because of his deafness, Deputy Ramirez never

made a proper request for a specimen and Littlepage did not refuse, either expressly

or by intentional failure, to provide a specimen.



A. Littlepage Understood Written English

              The Department asserts that Littlepage understood English to a degree in

which he was able to read the statutory warnings on the DIC-24, and then

intentionally refused to answer Deputy Ramirez’s request for a breath specimen.

Deputy Ramirez testified that “this [was] the most difficult test [he had] ever done”

because Littlepage is deaf.17                                  Deputy Ramirez testified that he and Littlepage

communicated via “the written word,”18 noting that Littlepage would answer by

circling ‘yes’ or ‘no.’19

              The Department maintains that Littlepage appeared to understand English,20

and that “given the fact that Littlepage is deaf, the presentation of the warnings in


                                                            
16
   AB 7
17
   CR 70
18
   CR 55
19
   CR 55
20
   AB 7
                                                                      11 
 
written English constituted substantial compliance.”21 In support of this argument,

the Department relies on TX DPS v. Jauregui 176 S.W.3d 846, but Jauregui is easily

distinguishable because, the defendant acknowledged that he understood the statutory

warnings whereas Littlepage did not.22

              Here, the record does not contain any affirmative remarks regarding

understanding the warnings or the DIC-24.                            Instead, Deputy Ramirez testified that

there were times when Littlepage seemed to not understand23 and when Littlepage’s

written responses did not make sense in the English language.24

              Deputy Ramirez acknowledged that ASL and English were not the same

language.25                     After questions regarding the fact that Littlepage is deaf, Deputy

Ramirez admitted that it was probable that there was a communication barrier,26 and

that it was possible that Littlepage did not understand what Deputy Ramirez was

writing.27

              The record is unclear as to whether Deputy Ramirez asked Littlepage via

writing if he would read the DIC-24. Deputy Ramirez testified that after Littlepage


                                                            
21
   AB 7
22
   TX DPS v. Jauregui, 176 S.W.3d 846, 850 (Tex.App. 2005), “When [the officer] provided
Jauregui a set of written warnings at the jail, Jauregui stated, ‘I understood this, I don’t need to read
it.’ Jauregui then refused for a second time to provide a breath specimen.”
23
   CR 64
24
   CR 64
25
   CR 69
26
   CR 71
27
   CR 79
                                                               12 
 
was arrested, Deputy Ramirez “held [the DIC-24] up to him,”28 and Littlepage

“glanced at it.”29 The record shows that Deputy Ramirez did not tell Littlepage what

the DIC-24 was or point out the heading to Littlepage.30 However, Deputy Ramirez

testified that he did state, “Here’s the Statutory Warnings, yes or no?”31

              When asked if he wrote or said that statement, Deputy Ramirez testified that

he said it but did not recall if he wrote it.32 There is no evidence that this statement

was written to Littlepage. However, even if the statement was written, Deputy

Ramirez testified that “[Littlepage] didn’t circle yes or not [sic] that he would read it

or wouldn’t,”33 thereby not providing a refusal.

                In regards to the question as to whether Deputy Ramirez requested that

Littlepage read the warnings, the evidence does not support this.            There is no

evidence of this written question and it was physically impossible for Littlepage to

have responded -- once Littlepage was placed under arrest, all communication

between he and Deputy Ramirez ceased because he was physically unable to

respond. He could not respond to the DIC-24 to either refuse or consent because he

was handcuffed with his hands behind his back.
 
 
                                                            
28
   CR 77
29
   CR 77
30
   CR 74
31
   CR 77
32
   CR 77
33
   CR 55
                                                               13 
 
B. Informed Decision

              The Department properly states that “a peace officer is directed to provide

certain warnings before requesting a driver’s consent to an alcohol concentration test,

so the driver has the opportunity to make an informed decision about taking or

refusing the test.”34

              “The purpose behind section 724.015 is ‘to ensure that a person who refuses to

give a requested specimen does so with a full understanding of the consequences.’

Nebes v. State, 743 S.W.2d 729, 730 (Tex.App.-Houston [1st Dist.] 1987, no pet.).”

TX DPS v. Jauregui, 176 S.W.3d 846, 849 (Tex.App. 2005)

              In order for an informed decision to be made, one must understand the options

or the questions being posed to him. Littlepage did not understand and therefore

never had the opportunity to make an informed decision.

              “It is implicit in Article 6701 l-5, §2, that a suspect’s decision to submit to a

breath test must truly be her own, made freely and with the correct understanding of

the actual statutory consequences of refusal.” Erdman v. State, 861 S.W.2d 890, 893

(Tex.Crim.App. 1993)

              Further, the Department asserts that Littlepage “deliberately ignored the

warnings Deputy Ramirez presented and refused to answer the deputy’s request for a

breath specimen.” However, Ramirez acknowledged that speaking or reading the

                                                            
34
      AB 9 
                                                               14 
 
DIC-24 aloud to Littlepage would be ineffective because he could not hear.35

Ramirez testified that he stated orally, “Here’s the Statutory Warnings, yes or no?”36

And that he then stated, “Then I will consider this a refusal?” He replied, “Yes,

ma’am.”37

              The evidence shows that Littlepage was never given the warnings in a way that

he was able to have a full understanding of what was being asked of him or the

consequences. Littlepage was never provided the warnings in a language he could

understand, ASL. Therefore no intelligent waiver or refusal could be made by

Littlepage.
 
 
 
C. No Refusal

              The Department contends that Littlepage “refused to answer the deputy’s

request for a breath specimen.”38                              However, the evidence plainly shows that

Littlepage did not refuse:

              Littlepage did not understand the DIC-24 or its purpose; Deputy Ramirez

testified he did not recall if he told Littlepage what the DIC-24 was or its purpose.39




                                                            
35
    CR 76
36
    CR 77
37
    CR 78
38
    AB 4 
39
    CR 74
                                                                 15 
 
Ramirez acknowledged that Littlepage may not have known what the DIC-24 was.40

                             Q: Did he know—do you know if he knew what it was?
                             A: No, ma’am.

              Littlepage’s silence was not a refusal but rather was due to his inability to

physically hear Deputy Ramirez and should not have been taken as a refusal. When

asked if he received his refusal on the form, Deputy Ramirez answered that “He

didn’t answer so he didn’t refuse…he wouldn’t say yes or no.”41 Ramirez further

testified that Littlepage did not expressly tell him that he would not give a

specimen.42
                             Q: Did he expressly tell you that he would not give a specimen?
                             A: No.


              In Jauregui, there was “no evidence that the appellant did not understand the

warnings or that this failure to receive the warnings in writing had any impact on his

decision to take the breath test.” Jauregui, 176 S.W.3d at 849-850 (Tex.App. 2005)

citing Lane v. State, 951 S.W.2d 242, 244 (Tex.App.-Austin 1997, no pet.).

              The Department assumes that Littlepage understood the warnings. However,

the evidence shows the contrary.                               During the entire DWI investigation, Deputy

Ramirez and Littlepage communicated via writing and circling of “yes” or “no.” The

evidence also shows that there were communication difficulties throughout, when

                                                            
40
   CR 77
41
   CR 56 (emphasis added)
42
   CR 78 (emphasis added)
                                                                  16 
 
Deputy Ramirez could not understand Littlepage and vice versa.43 When Deputy

Ramirez presented Littlepage with the statutory warnings, he did so orally, without

writing and Littlepage gave no response.

              In Jauregui, where “the evidence demonstrated that the purpose of section

724.015 had been fulfilled: Jauregui had been informed of the consequences of his

failing to provide a breath specimen, and he had indicated that he understood those

consequences.” 176 S.W.3d at 850. In the instant case, all the evidence points to the

fact that Littlepage was not able to give a response because he neither understood the

warnings nor heard the request for a specimen, therefore the purpose of section

724.015 was not fulfilled.



III. LITTLEPAGE DISTINGUISHED

              The Department points to the cases of State v. Amaya44 and Landin v. Tex.

Dep’t of Pub. Safety45 to argue that Deputy Ramirez substantially complied with the

statute to provide warnings to Littlepage. The Department maintains that Littlepage

understood those warnings and subsequently refused. However, this is the proverbial

comparison of apples and oranges.

              In both Amaya and Landin, the defendants spoke Spanish. These cases cannot
                                                            
43
44
   CR 71
   State v. Amaya, 221 S.W.3d 797 (Tex.App.-Fort Worth 2007, pet. Ref’d).—gave defendant
45
   warnings  in two languages, English and Spanish.
   Landin v. Tex. Dep’t of Pub. Safety, 475 S.W.2d 594 (Tex.Civ.App.—Dallas 1971, no writ)
 
                                                               17 
 
control the instant case because they dealt with individuals who were able-bodied

and could communicate with the officers. Those cases focused on being given the

warnings in either English or Spanish.

       In the case at bar, Littlepage is completely and totally deaf. He has no ability

to hear spoken language. Consequently, he was unable to hear what Deputy Ramirez

said or asked. Further, Littlepage could not speak to Deputy Ramirez or reply to

requests. Although Littlepage utilizes another language, ASL, the central issue is

that he is a disabled person who cannot communicate or express himself to Deputy

Ramirez.

       The Department concedes that they have the burden in the current case to

show that Littlepage sufficiently understood the warnings to give an informed

waiver. They did not meet that burden. While the Department at most argues that

Littlepage appears to understand English enough to answer yes or no to field sobriety

tests, there is no evidence that the communication regarding the statutory warnings

was understood. Deputy Ramirez did not emphasize what the warnings were or

receive a response from Littlepage that the acknowledged or understood the DIC-24.

This is substantiated by the fact that all communication, however limited, ceased

when Littlepage was handcuffed with his hands behind his back and put in the patrol

car.

       Strict compliance is not required when the warnings can be given either orally

                                          18 
 
and/or in writing. Here, this is not an option for a deaf person: (1) there is no way to

provide the warnings orally without the aid of an ASL interpreter; and, (2) since

there is no written form of ASL, providing the warnings in writing is impossible.

      Clearly Amaya and Landin are spoken language cases and do not apply to the

case at bar. It is clear that Littlepage is unique and distinct. The evidence shows that

Littlepage is deaf, and he physically is unable to hear; that he communicates in ASL;

that Deputy Ramirez does not understand ASL; that deafness is a recognized

disability under the ADA; that no interpreter or accommodations were made for

Littlepage; ASL has no written language; that Littlepage was arrested and handcuffed

behind his back; Littlepage had no ability to communicate after handcuffed; Deputy

Ramirez read the warnings in English; Littlepage was not able to hear that reading

and was not able to read them on his own; that he was not told what DIC-24 was for;

that Littlepage was not expressly asked by Deputy Ramirez to provide a sample; that

he was verbally told to respond but could not do so because he could not hear the

request; that he was verbally told that a no answer will be taken as a refusal; that he

did not hear this request; and that he never expressly or intentionally refused to

provide a breath or blood sample.

      Deputy Ramirez knew Littlepage was deaf.


                   Q: And you noted that he was deaf?
                   A: Yes, ma’am.
                   Q: Did he tell you he was deaf?
                                          19 
 
                                            A: Yes, ma’am.46

              Deputy Ramirez testified that he attempted to secure an interpreter. However,

when asked on cross-examination about an interpreter, Deputy Ramirez testified that

he did not know if there was an interpreter available or not because he did not know

if one was even called.47                                       Although the Department argues that Littlepage

understood everything that was communicated and asked of him, Deputy Ramirez

stated there were times when Littlepage seemed to not understand.48                                       Deputy

Ramirez replied, “yes, ma’am” and that “[Littlepage’s] English grammar didn’t make

sense.”49 Deputy Ramirez acknowledged that there was a communication barrier

between himself and Littlepage.50


                  Section 724.015 requires that the officer “shall inform the person orally and

in writing” regarding the consequences of refusing to submit a specimen. That was

not done in this case.                                   The evidence shows that Littlepage communicated via sign

language and Deputy Ramirez was unable to understand him.51


IV. DUE PROCESS

              Both the Department and Deputy Ramirez acknowledge that Littlepage’s

                                                            
46
   CR 58-59
47
   CR 63
48
   CR 64
49
   CR 64
50
   CR 71
51
   CR 70
                                                                        20 
 
deafness is a recognized disability under the ADA.52 Because of this, the issue

extends beyond a single spoken language comparison.                                   It encompasses equal

protection under the due process clause.                               Although the Department asserts that

Littlepage did not raise the issue of due process, the evidence shows that the issue

was raised with the trial court.53

              When the Constitution has been interpreted to require language access, the

issue is typically framed in terms of the Sixth Amendment. Likewise, the Fifth and

Fourteenth Amendments’ due process clauses have been employed to justify the

right to interpreters within the courtroom and access to the justice system. Due

process requires more than just the appearance of equality within the courtroom. Due

process requires proceedings a person can understand both inside the courtroom and

while interacting with law enforcement during the investigatory phase.

              Disabled persons are afforded extra protection to ensure justice and due

process. Deputy Ramirez was aware that Littlepage was disabled. When asked,

                                            Q: Okay. Would you agree that hearing impairment is a
                                            disability?
                                            A: Yes, ma’am.
                                            Q: As recognized by the Americans with Disabilities Act?
                                            A: That’s why I recognize it, yes, ma’am.54

              Title II of the Americans with Disabilities Act (ADA) requires state and

                                                            
52
   CR 61
53
   RR 14-15
54
   CR 61
                                                                 21 
 
local governments to make their programs, services, and activities accessible to
individuals with disabilities, including individuals who are deaf or hard of
hearing. Specifically, under 28 CFR §35.160 General—Communications, states:
 
                       (a)       (1) a public entity shall take appropriate steps to
                       ensure that communications with applicants, participants,
                       members of the public, and companions of disabilities are
                       as effective as communication with others.
                        
                       (b)       (2) The type of auxiliary aid or service necessary
                       to ensure effective communication will vary in accordance
                       with the method of communication used by the individual;
                       the nature, length, and complexity of the communication
                       involved; and the context in which the communication is
                       taking place. In determining what types of auxiliary aids and
                       services are necessary, a public entity shall give primary
                       consideration to the requests of individuals with disabilities.
                       In order to be effective, auxiliary aids and services must be
                       provided in accessible formats, in a timely manner, and in
                       such a way as to protect the privacy and independence of
                       the individual with a disability.
 
 
              The regulations also specify that in determining what type of aid or
service is necessary, the public entity shall give ‘primary consideration” to the
requests of the individual, and shall “honor” that choice unless it can demonstrate
“that another effective means of communication exists.” 55
              Likewise, Section 504, Rehabilitation Act of 1973 29 USC Section 794(a)
states
 
                             No otherwise qualified individual with a disability . . .
                             shall, solely by reason of his or her disability, be excluded
                             from the participation in, be denied the benefits of, or be
                                                            
55
     Title II of ADA 28 CFR 35.130(B)(2)
                                                               22 
 
                subjected to discrimination under any program or
                activity receiving Federal financial assistance or under
                any program or activity conducted by any Executive
                agency or by the United States Postal Service."


         Law enforcement is included in those entities which are governed by the

    ADA and the Rehabilitation Act. It is rational to associate equal protection and

    due process guarantees that are required in the courtroom to apply throughout the

    criminal justice system. Because Deputy Ramirez recognized that Littlepage was

    deaf and was protected under the ADA. Deputy Ramirez failed to accommodate

    for Littlepage’s disability and therefore violated his due process rights as a citizen.


 
                                       CONCLUSION
         The evidence shows Littlepage is deaf and communicates through ASL.

Consequently, this case involves an unspoken/visual language and a disability.

When viewed in this light, the evidence shows that Littlepage did not understand the

statutory warnings and Deputy Ramirez incorrectly assumed Littlepage’s non-

response was a refusal.         Littlepage neither understood nor expressly refused to

provide a specimen. Given the unique circumstances of this case, the ALJ erred and

this case does not provide for a license suspension.

                                           PRAYER


          For the foregoing reasons, Appellee respectfully requests that the judgment
                                               23 
 
    of Williamson County Court Two be affirmed.



                                           Respectfully submitted,
 
 
                                           ATTORNEY FOR APPELLEE
                                           CODY LITTLEPAGE

                                           Amber Farrelly
                                           Texas Bar No. 24069671
                                           BAIRD☆FARRELLY CRIMINAL DEFENSE
                                           2312 Western Trails Blvd Ste. 102-A
                                           Austin, TX 78745
                                           Tel. 512-804-5911
                                           Fax. 512-804-5919
                                           adfelaw@gmail.com



                                   By: __________________________
                                         Amber D. Farrelly


                          CERTIFICATE OF COMPLIANCE
 
 
           I certify that the computer program used to prepare this document reported
    that there are 4,331 words in the pertinent parts of the document, per TRAP
    9.4(i)(2).



                                   By: __________________________
                                         Amber D. Farrelly




                                             24 
 
                            CERTIFICATE OF SERVICE
 
           I hereby certify that on January 23, 2015, a true and correct copy of
    the foregoing Appellant’s Brief was served on the following counsel of record by
    the means indicated:
 
          Via e-file
          Kevin M. Givens
          Supervising Attorney,
          ALR Appellate Section
          SBN 00796633
          P.O. Box 15327
          Austin, Texas 78761-5327
          Tel: (512) 424-5193
          Fax: (512) 424-5221
          Kevin.Givens@dps.texas.gov



                                 By: __________________________
                                       Amber D. Farrelly




                                           25 
 
                                              No. 03-14-00194-CV
 
                           TEXAS DEPARTMENT OF PUBLIC SAFETY,
 
                                                     Appellant,

                                                           V.

                                             CODY LITTLEPAGE,

                                                      Appellee
 
 
 
 
                                           APPELLEE’S APPENDIX
 
 
 
 
 
                                           LIST OF DOCUMENTS
 
 
 
 
    Tab A ...................................................... Texas Constitution art. I, §10 and 19




                                                           26 
 
    TAB

    “A”




    27 
 
    Texas Constitution, Article I, Section 10:
    In all criminal prosecutions the accused shall have a speedy public trial by an impartial
    jury. He shall have the right to demand the nature and cause of the accusation against him,
    and to have a copy thereof. He shall not be compelled to give evidence against himself,
    and shall have the right of being heard by himself or counsel, or both, shall be confronted
    by the witnesses against him and shall have compulsory process for obtaining witnesses in
    his favor, except that when the witness resides out of the State and the offense charged is a
    violation of any of the anti-trust laws of this State, the defendant and the State shall have
    the right to produce and have the evidence admitted by deposition, under such rules and
    laws as the Legislature may hereafter provide; and no person shall be held to answer for a
    criminal offense, unless on an indictment of a grand jury, except in cases in which the
    punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of
    impeachment, and in cases arising in the army or navy, or in the militia, when in actual
    service in time of war or public danger.


    Texas Constitution, Article I, Section 19:

    No citizen of this State shall be deprived of life, liberty, property, privileges or
    immunities, or in any manner disfranchised, except by the due course of the law of
    the land.




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