                                                                        ACCEPTED
                                                                    01-15-00512-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               9/30/2015 6:40:18 PM
                                                              CHRISTOPHER PRINE
                                                                             CLERK

              NO. 01-15-00512-CR
             ____________________
                                                   FILED IN
                                            1st COURT OF APPEALS
                    IN THE                      HOUSTON, TEXAS
                                            9/30/2015 6:40:18 PM
             COURT OF APPEALS               CHRISTOPHER A. PRINE
                                                    Clerk
    FOR THE FIRST DISTRICT OF TEXAS

                AT HOUSTON
         ___________________________

          TAYLOR MARTIN KORB,
                Appellant

                       v.

              STATE OF TEXAS,
                   Appellee
            ______________________

       On Appeal from Cause No. 1980492
  County Criminal Court at Law Number Three (3)
              Harris County, Texas
         Hon. Natalie Fleming, Presiding
       _____________________________

BRIEF OF APPELLANT TAYLOR MARTIN KORB
       _____________________________


                                                 DAN KRIEGER
                                      215 East Galveston Street
                                      League City, Texas 77573
                                         (281) 332-7630 Phone
                                      (281) 332-7877 Facsimile
                                      dan@kriegerlawfirm.com
                                     ATTORNEY FOR APPELLANT

       ORAL ARGUMENT REQUESTED
                    IDENTITY OF PARTIES AND COUNSEL

Appellant/Defendant:           Taylor Martin Korb

Trial Counsel for Appellant:   Dan Krieger
                               State Bar No. 24064243
                               Christopher Morton
                               State Bar No. 24037145
                               215 E. Galveston St.
                               League City, Texas 77573
                               (281) 332-7630 (Telephone)
                               (281) 332-7877 (Facsimile)
                               dan@kriegerlawfirm.com

Appellate Counsel for          Dan Krieger
Appellant:                     State Bar No. 24064243
                               215 East Galveston Street
                               League City, Texas 77573
                               (281) 332-7630 (Telephone)
                               (281) 332-7877 (Facsimile)
                               dan@kriegerlawfirm.com

Appellee:                      State of Texas

Trial Counsel for              Napoleon Wilson Stewart, II
Appellee:                      State Bar No. 24086894
                               Molly Katharine Wurzer
                               State Bar No. 24082073
                               1201 Franklin, Suite 600
                               Houston, Texas 77002
                               Telephone: (713) 755-5800

Appellate Counsel              Alan Curry
for Appellee:                  State Bar No. 05263700
                               1201 Franklin Street
                               Houston, Texas 77002
                               Telephone: (713) 755-5826

Trial Judge:                   Honorable Natalie Fleming
                                      ii
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................ ii

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

INDEX OF AUTHORITIES ........................................................................................ v

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

STATEMENT REGARDING ORAL ARGUMENT .................................................. 2

ISSUE PRESENTED FOR REVIEW ......................................................................... 3

STATEMENT OF FACTS .......................................................................................... 4

SUMMARY OF THE ARGUMENT .......................................................................... 7

ARGUMENT AND AUTHORITIES .......................................................................... 8

        ISSUE 1: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE
        OFFICER’S STOP OF THE APPELLANT AS THERE WERE NO
        ARTICULABLE FACTS TO ESTABLISH REASONABLE SUSPICION FOR
        THE STOP OF THE APPELLANT......................................................................         8

             A. STANDARD OF REVIEW ............................................................................ 8

             B. THE REPORT OF A PERSON DRIVING BY A RESIDENCE,
                 WITHOUT EVIDENCE OF OTHER ILLEGAL ACTIVITY IS
                 INSUFFICIENT TO JUSTIFY AN INVESTIGATIVE DETENTION .................                           9

             C. THE COURT OF CRIMINAL APPEALS IN CRAIN V. STATE
                 ESTABLISHED THE FACTORS RELIED UPON BY THE OFFICER
                 IN THIS CASE WERE INSUFFICIENT TO CONSTITUTE
                 REASONABLE SUSPICION ................................................................         10

             D. THE FACTS OF THIS CASE ARE DISTINGUISHABLE FROM
                 OTHER CASES WHERE REASONABLE SUSPICION WAS FOUND
                 FOR AN INVESTIGATIVE DETENTION. ..............................................                11

                                                        iii
PRAYER ...................................................................................................................... 13

CERTIFICATE OF SERVICE .................................................................................... 15
CERTIFICATE OF COMPLIANCE ........................................................................... 15
APPENDIX .................................................................................................................. A




                                                               iv
                                          INDEX OF AUTHORITIES
                                      FEDERAL AND STATE COURT CASES

Amador v. State,
      275 S.W.3d 872 (Tex.Crim.App.2009) ......................................................... 8

Brown v. Texas,
      443 U.S. 47 (1979)............................................................................................................................... 9

Crain v. State,
       315 S.W.3d 43 (Tex.Crim.App. 2010) .................................................... 9-11

Derichsweiler v. State,
      348 S.W.3d 906 (Tex.Crim.App. 2011)..................................................                                                         12

Ford v. State,
          158 S.W.3d 488 (Tex.Crim.App. 2005) .................................................                                                       8

Taflinger v. State,
       414 S.W.3d 881 (Tex.App.–Houston [1st Dist.] 2013, no pet.) .............11,12

Terry v. Ohio,
       392 U.S. 1 (1968) .................................................................................... 9, 10

United States v. Sokolow,
          490 U.S. 1 (1989) ................................................................................... 9

Wiede v. State,
          214 S.W.3d 17 (Tex.Crim.App. 2007) ........................................................ 8

Woods v. State,
        956 S.W.2d 33 (Tex.Crim.App.1997) .................................................... 10




                                                                           v
                           STATEMENT OF THE CASE

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

Intoxicated, a class B misdemeanor. (C.R. at 5). 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).




                                          1
                STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Rule 39.7 of the Texas Rules of Appellant Procedure, Appellant

Taylor Martin Korb requests that this Court hear oral argument of this appeal.

Appellant believes that oral argument would significantly aid this Court in

determining the application of the facts in this matter to the legal issues presented

herein. This appeal presents important legal issues concerning a police officer’s

reasonable suspicion for an investigative detention.




                                         2
                         ISSUE PRESENTED FOR REVIEW



      Issue 1: The trial court erred in failing to suppress the officer’s stop of the

Appellant as there were no articulable facts to establish reasonable suspicion for the

stop of the Appellant.




                                          3
                              STATEMENT OF FACTS

      At the motion to suppress hearing, held prior to trial, the State stipulated this

was a warrantless arrest case. (III R.R. at 4).

      On August 28, 2014, at approximately midnight, Officer Galvan of the

Pasadena Police Department was on-duty, working patrol, and was sent to a

residential neighborhood in Pasadena, Texas. (III R.R. at 5-6). Officer Galvan

testified that he was called for a light-colored, small truck driving in the area. (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. 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 approximately one minute later 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 caller was identified by name

and phone number. (III R.R. at 13). Officer Galvan also testified that caller reported

he had seen the vehicle three times over a period of ten minutes. (III R.R. at 22).

The caller was not presented as a witness at the suppression hearing or at trial.

      Officer Galvan testified there was “no good reason for anyone to just drive

around multiple times” and that he “wanted to gather more information on the
                                           4
vehicle onto why he was driving around the area so many times.” (III R.R. at 25,

30). He further testified the truck solely driving around would cause alarm. (III

R.R. at 23). Officer Galvan testified that [a person] raise[s] suspicion by driving in

the area multiple times. (III R.R. at 28). When asked about the raised suspicion,

Officer Galvan indicated that the activity raised suspicion of “suspicious activity”

and “possibly casing homes, and possibly looking to burglarize.” (III R.R. at 28).

      Officer Galvan also testified that by simply observing a person driving

around, he would not have reasonable suspicion to believe a person had committed

a crime or that a person was going to commit a crime. (III R.R. at 29). Officer Galvan

stated he would need more articulable facts to determine if some crime was going to

happen. (III R.R. at 23-24).

      Officer Galvan testified that prior to the stop he observed the Appellant to

make a complete stop at a stop sign. (III R.R. at 27). He testified that Appellant

properly signaled his turn and turned properly. (III R.R. at 27). Officer Galvan

further testified that he did not observe anything that would lead him to believe that

Appellant was intoxicated at the time of stopping the vehicle. (III R.R. at 27).

Officer Galvan confirmed that the sole reason for his stopping the vehicle was

because of the call. (III R.R. at 27).

      Officer Galvan testified he did not have enough information to have a

reasonable suspicion, solely based on Appellant driving around, that Appellant had
                                        5
committed a crime or was going to commit a crime. (III R.R. at 29). On further

questioning, Officer Galvan was asked if he believed that if someone calls 911 and

reports a suspicious vehicle that he had the right to stop the vehicle. (III R.R. at 31).

Officer Galvan responded that “we check all calls and the vehicles in the area or

persons that are called in.” (III R.R. at 31). When asked if Appellant’s counsel

called 911 and simply said there is a suspicious vehicle driving in front of his house,

if Officer Galvan would stop that vehicle -- Officer Galvan’s response was, “Yes.”

(III R.R. at 31).

       No other witnesses were presented. At the close of the suppression hearing,

the trial court denied the Appellant’s motion to suppress. (III R.R. at 42).




                                           6
                         SUMMARY OF THE ARGUMENT

      The arresting officer in this matter testified that he did not observe any illegal

activity and that he would need further articulable facts other than a person driving

around to have reasonable suspicion to stop the Appellant. No evidence of any type

of illegal activity was presented as the basis for the call to the police or the stop of

the Appellant. A caller reporting a vehicle driving by a residence, without other

evidence of criminal activity, does not provide reasonable suspicion to justify an

investigative detention. There were no specific articulable facts that would justify an

investigative detention in this matter.




                                           7
                         ARGUMENT AND AUTHORITIES

I.    THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE OFFICER’S STOP OF
      THE APPELLANT AS THERE WERE NO ARTICULABLE FACTS TO ESTABLISH
      REASONABLE SUSPICION FOR THE STOP OF THE APPELLANT.

      A.     STANDARD OF REVIEW

      A trial court's ruling on a motion to suppress is reviewed under a bifurcated

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). The

trial judge is the sole trier of fact and judge of the weight and credibility of the

evidence    and    testimony.     Wiede     v.   State,   214    S.W.3d   17,   24–25

(Tex.Crim.App.2007).       The trial court’s application of the law to the facts is

reviewed de novo. Ford, 158 S.W.3d at 493.

        To suppress evidence on an alleged Fourth Amendment violation, the

defendant bears the initial burden of producing evidence that rebuts the presumption

of proper police conduct. Ford, 158 S.W.3d at 492. A defendant satisfies this burden

when, as here, he establishes “that a search or seizure occurred without a warrant.

Id. If this showing is made, then the burden shifts to the State....” Amador v. State,

275 S.W.3d 872, 878 (Tex.Crim.App.2009). The State's burden is “to establish that

the search or seizure ... was reasonable. Ford, 158 S.W.3d at 492. In the instant case,

the State stipulates this was a warrantless arrest. (III R.R. at 4).




                                            8
      B.     THE REPORT OF A PERSON DRIVING BY A RESIDENCE, WITHOUT OTHER
             EVIDENCE OF ILLEGAL ACTIVITY, IS INSUFFICIENT TO JUSTIFY AN
             INVESTIGATIVE DETENTION.

      It is well-established that under the Fourth Amendment, a warrantless

detention of the 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); see

also, United States v. Sokolow, 490 U.S. 1, 7 (1989) (“police can stop and briefly

detain a person for investigative purposes if the officer has a reasonable suspicion

supported by articulable facts that criminal activity may be afoot, even if the officer

lacks probable cause.”) (internal quotation marks omitted); Brown v. Texas, 443

U.S. 47, 51 (1979).

       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); Terry v. Ohio, 392 U.S. at 21–

22 (“the police officer must be able to point to specific and articulable facts which,

if taken together with rational inferences from those facts, reasonably warrant” an

investigative detention, and “it is imperative that the facts be judged against an

objective standard: would the facts available to the officer at the moment of the

                                          9
seizure ... warrant a man of reasonable caution in the belief that the action taken was

appropriate”).

      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. Terry, 392 U.S. at 21–22. It also looks to the

totality of the circumstances; the relevant inquiry is not whether particular conduct

is innocent or criminal, but the degree of suspicion that attaches to particular non-

criminal acts. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). Here, the

facts presented by the State do not meet an objective standard that would justify an

investigative detention.


      C.     THE COURT OF CRIMINAL APPEALS IN CRAIN V. STATE ESTABLISHED
             THE FACTORS RELIED UPON BY THE OFFICER IN THIS CASE WERE
             INSUFFICIENT TO CONSTITUTE REASONABLE SUSPICION.

      In Crain, the Appellant was walking late at night in a residential area in which

burglaries occurred mostly after midnight. Crain v. State, 315 S.W.3d 43, 53

(Tex.Crim.App. 2010). When Crain saw the police officer's vehicle drive past him,

he “grabbed at his waist.” Id. As in this case, the officer acknowledged that he did

not have a reason to arrest Crain at that time. Also similar to this case, there was no

evidence regarding a specific crime or burglary had occurred or that Crain was

engaged in illegal behavior. The Court of Criminal Appeals held that “[n]either time

                                          10
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.” Id. The court further held that those factors did not constitute reasonable

suspicion. Id.

      In the instant case, there was nothing in the surroundings of this matter that

Appellant was engaged in suspicious or illegal activity and there is no other indicia

of reasonable suspicion on the record -- the caller reported activity, not criminal

activity. There is nothing inherently or objectively suspicious about a vehicle

driving on a residential street three times over the course of ten minutes. This

proposition is further supported by Officer Galvan’s acknowledgment and testimony

that he would need further articulable facts to determine if a crime was going to be

committed. (III R.R. at 29). Here, there were no such facts presented to the trial

court. 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).

      D.     THE FACTS OF THIS CASE ARE DISTINGUISHABLE FROM OTHER CASES
             WHERE REASONABLE SUSPICION WAS FOUND FOR AN INVESTIGATIVE
             DETENTION.

      This case is fundamentally and factually distinguishable from this Court’s

holding in 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
                                    11
(Tex.App.–Houston [1st Dist.] 2013, no pet.). The officer observed the driver

driving immediately after the 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 wrongdoing – simply driving. Furthermore,

the caller in this case did not follow the vehicle, describe any specific wrongdoing,

did not provide an actual color of the vehicle, and was not known by the officer to

the extent of the clerk in Taflinger. Id.

      This case is further distinguishable from Derichsweiler v. State. In

Derichsweiler, the Appellant pulled up in his vehicle next to the Holder family who

were in another vehicle at a McDonald’s drive-thru. Derichsweiler v. State, 348

S.W.3d 906, 909 (Tex.Crim.App.2011). He stared at them and was inexplicably

grinning directly at them. Id. Appellant then drove away and repositioned his car

to a place where he was directly facing them and was again staring and grinning at

them. Id. The Appellant drove away yet another time and then suddenly reappeared

from behind the Holden family’s vehicle. Id. He pulled to the left side of the

Holden’s car, not quite blocking it in. Id. He again began staring and grinning at

them. Id. At the Appellant’s motion to suppress, the Holden’s specifically testified

that they felt threatened and intimidated by this conduct. Id. They further felt that

they were being “sized up” or “stalked.” Id. They then also observed the Appellant

to engage in the same or similar conduct in an adjoining Walmart parking lot. Id. at
                                        12
910. They reported the activity to the police and stood by at the scene continuously

reporting the Appellant’s actions to the police and providing them with the make,

model, color, and license plate of the Appellant’s vehicle. Id.

      In contrast, there was no “bizarre” behavior here as it was characterized by

the Court of Criminal Appeals in Derichsweiler. Id. at 917. In the instant matter,

there was no description of any specific action, other than ordinary driving,

described or reported to the police. There was no action committed by the Appellant

against the caller, which was also specifically noted as a factor in the Derichsweiler

holding. Id. 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. Additionally, 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 described by alleged caller.

                                      PRAYER

      A citizen merely calling the police to report innocuous activity should not and

does not give rise to reasonable suspicion in this matter. There were no exigent

circumstances present that would have prevented the arresting officer from

investigating further to see if there was any type of criminal activity involved in the

citizen’s report. The contours of reasonable suspicion have evolved considerably

since the landmark decision in Terry, but have not extended to the point where
                                      13
simply operating a vehicle constitutes a valid reason for an investigative detention.

For the reasons stated in this brief, Appellant, Taylor Martin Korb, respectfully

requests this Court reverse the trial court and remand the case


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

                                       By: /s/ Dan Krieger
                                         Dan Krieger
                                         State Bar No. 24064243
                                         Attorney for Appellant




                                         14
                      CERTIFICATE OF COMPLIANCE


      I certify that this document was produced on a computer using Microsoft

Word and contains {2number} words, 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).

                                     /s/ Dan Krieger
                                         Dan Krieger




                         CERTIFICATE OF SERVICE

      A true and correct copy of the above and foregoing document has been

forwarded to the following persons, in accordance with the TEXAS RULES OF

APPELLATE PROCEDURE, on the 30th day of September, 2015:



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


                                     /s/ Dan Krieger
                                         Dan Krieger



                                       15
                                    NO. 01-15-00512-CR
                                   ____________________

                                              IN THE

                                   COURT OF APPEALS

                     FOR THE FIRST DISTRICT OF TEXAS

                                    AT HOUSTON
                             ___________________________

                               TAYLOR MARTIN KORB,
                                     Appellant

                                                   v.

                                   STATE OF TEXAS,
                                        Appellee
                                 ______________________

                       On Appeal from Cause No. 1980492
                  County Criminal Court at Law Number Three (3)
                              Harris County, Texas
                         Hon. Natalie Fleming, Presiding
                       _____________________________

                             APPELLANT’S APPENDIX
                           _____________________________

                                  LIST OF DOCUMENTS

1. Defendant’s Motion to Suppress (CR 23-24) ...............................................TAB 1
2. Jury Instructions and Verdict (CR 33-37) .....................................................TAB 2
3. Trial Court’s Judgment (CR 41) ......................................................................TAB 3




                                                   A
TAB 1


 B
C
TAB 2




 D
E
F
G
H
TAB 3


  I
J
