                                                                          ACCEPTED
                                                                      04-16-00658-CR
                                                          FOURTH COURT OF APPEALS
                                                               SAN ANTONIO, TEXAS
                                                                3/16/2017 10:51:26 AM
                                                                       KEITH HOTTLE
                                                                               CLERK

       NOS. 04-16-00658-CR & 04-16-00659-CR

       IN THE COURT OF APPEALS FOR THE            FILED IN
                                           4th COURT OF APPEALS
           FOURTH DISTRICT OF TEXAS         SAN ANTONIO, TEXAS
               SAN ANTONIO, TEXAS         03/16/2017 10:51:26 AM
           ______________________________    KEITH E. HOTTLE
                                                      Clerk
               THE STATE OF TEXAS,
                     Appellant

                           v.

                RUBEN RODRIGUEZ,
                      Appellee
           ______________________________

ON APPEAL FROM THE 399th JUDICIAL DISTRICT COURT
             BEXAR COUNTY, TEXAS
     CAUSE NOS. 2015-CR10288 & 2015-CR-10289
         ______________________________

           REPLY BRIEF FOR THE STATE
           ______________________________

             NICHOLAS “NICO” LAHOOD
               Criminal District Attorney
                 Bexar County, Texas

                     LAURA E. DURBIN
            Assistant Criminal District Attorney
                   Bexar County, Texas
                   Paul Elizondo Tower
                   101 W. Nueva Street
                San Antonio, Texas 78205
     Phone: (210) 335-2411 – Laura.Durbin@bexar.org
              Attorneys for the State of Texas
                  State Bar No. 24068556

          ORAL ARGUMENT REQUESTED
                                             TABLE OF CONTENTS


TABLE OF AUTHORITIES ............................................................................................ iii

STATE’S REPLY ...........................................................................................................1

         The officer’s subjective intent is irrelevant .....................................................1

         The record supports the officer’s reasonable suspicion .................................2

PRAYER FOR RELIEF ....................................................................................................4

CERTIFICATE OF COMPLIANCE ....................................................................................5

CERTIFICATE OF SERVICE ............................................................................................5




                                                            ii
                                          TABLE OF AUTHORITIES

Cases

Ford v. State,
  158 S.W.3d 488 (Tex. Crim. App. 2005) ...............................................................1
Jaganathan v. State,
  479 S.W.3d 244 (Tex. Crim. App. 2015) ..............................................................3
Statutes

TEX. TRANS. CODE ANN. §551.103 ............................................................................2
TEX. TRANS. CODE ANN. §552.006 ............................................................................2
Rules

TEX. R. APP. P. 9.4 .....................................................................................................5
TEX. R. APP. P. 38.3 ...................................................................................................1




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TO THE HONORABLE COURT OF APPEALS FOR THE FOURTH
DISTRICT OF TEXAS:

      Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar

County, Texas, and files this reply brief for the State pursuant to Texas Rules of

Appellate Procedure 38.3.

                                   STATE’S REPLY

The officer’s subjective intent is irrelevant

      An officer executes a lawful temporary detention when he has reasonable

suspicion. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The test

for reasonable suspicion is an objective one based solely on whether there is an

objective basis for the detention. The officer’s subjective intent is not relevant.

The officer viewed Rodriguez walking with is bike against oncoming traffic. Two

transportation statutes control this conduct:

      Sec. 551.103. OPERATION ON ROADWAY. (a) Except as provided by
      Subsection (b), a person operating a bicycle on a roadway who is moving
      slower than the other traffic on the roadway shall ride as near as practicable
      to the right curb or edge of the roadway, unless:

        (1) the person is passing another vehicle moving in the same direction;

        (2) the person is preparing to turn left at an intersection or onto a private
        road or driveway;

        (3) a condition on or of the roadway, including a fixed or moving object,
        parked or moving vehicle, pedestrian, animal, or surface hazard prevents
        the person from safely riding next to the right curb or edge of the roadway;
        or


                                           1
       (4) the person is operating a bicycle in an outside lane that is:
             (A) less than 14 feet in width and does not have a designated bicycle
             lane adjacent to that lane; or
             (B) too narrow for a bicycle and a motor vehicle to safely travel side
             by side.

TEX. TRANS. CODE ANN. §551.103

       Sec. 552.006. USE OF SIDEWALK. (a) A pedestrian may not walk along
       and on a roadway if an adjacent sidewalk is provided and is accessible to the
       pedestrian.

TEX. TRANS. CODE ANN. §552.006

The record supports the officer’s reasonable suspicion

       Rodriguez argues the officer changed his reasoning to detain multiple times

during the motion to suppress.1           Under the reasonable suspicion standard as

discussed, the officer’s subjective reasoning for the detention is not a factor.

Rather, the court considers the objective basis for the detention. The record

established Rodriguez was walking and pushing his bicycle in the street against

traffic. There was an adjacent sidewalk.

       First, under Section 551.103, if Rodriguez were in fact operating a bicycle,

he was not as near at practicable to the curb.               Second, if Rodriguez was a


1
  The State agrees with Rodriguez that during the suppression hearing, Officer Irving’s reasoning
for the stop changed; however, as mentioned, his reasoning is not relevant to whether or not the
record reflects the officer possessed reasonable suspicion to detain Rodriguez. Officer Irving
first testified that he stopped Rodriguez because he was a pedestrian in the roadway. (RR 8). On
cross-examination, Rodriguez questioned Officer Irving about the San Antonio municipal code
provision which disallows bicycles on sidewalks. (RR 15-16). On re-direct, Officer Irving
testified the two were in violation of Transportation Code Section 551.103. (RR 18).

                                               2
pedestrian, under Section 552.006 of the Transportation, Rodriguez was not

walking along the adjacent sidewalk. The court’s determination that Rodriguez’s

actions were “more correct” was not proper.         The State does not dispute

Rodriguez may have had justification for his conduct. However, the question

before the trial court was whether the officer had reasonable suspicion to detain

Rodriguez for a traffic violation, not whether Rodriguez was guilty of a traffic

violation. See Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015)

(holding potential justifications for appellant’s failure to move immediately from

left lane did not negate the reasonable suspicion that an offense occurred).

“There mere possibility that an act is justified will not negate reasonable

suspicion.” Rodriguez was walking with his bike against traffic. The officer had

reasonable suspicion to detain Rodriguez for a violation under 551.103 or

552.006.




                                        3
                               PRAYER FOR RELIEF

The State prays that this Court will reverse the trial court’s ruling.


                                  Respectfully submitted,
                                  NICHOLAS “NICO” LAHOOD
                                  Criminal District Attorney
                                  Bexar County, Texas

                                  /s/ Laura E. Durbin
                                   ______________________________
                                   LAURA E. DURBIN
                                   Assistant Criminal District Attorney
                                   Bexar County, Texas
                                   101 West Nueva, 3rd Floor
                                   San Antonio, Texas 78204
                                   (210) 335-2418
                                   Laura.Durbin@bexar.org
                                   State Bar No. 24068556
                                   (On Appeal)

                                  Attorneys for the State




                                     4
                                CERTIFICATE OF COMPLIANCE

        I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure

that this document contains 613 words.

                                        /s/ Laura E. Durbin
                                        _____________________________
                                        LAURA E. DURBIN




                                  CERTIFICATE OF SERVICE


        I, Laura Durbin, Assistant Criminal District Attorney, hereby certify that a

true and correct copy of the above and foregoing reply brief was served electronic

service to Oscar Cantu, Counsel for Ruben Rodriguez, on the 16th day of March,

2017.



                                        /s/ Laura E. Durbin
                                        _____________________________
                                        LAURA E. DURBIN




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