                                                                                         ACCEPTED
                                                                                     03-15-00098-CR
                                                                                             5335189
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                               5/19/2015 10:17:53 AM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                 IN THE THIRD COURT OF APPEALS
                        AT AUSTIN, TEXAS
                                                              FILED IN
                                                       3rd COURT OF APPEALS
BRIAN VINCENT ROBINSON,              §                      AUSTIN, TEXAS
         Appellant                   §                 5/19/2015 10:17:53 AM
                                     §         CAUSE NO. 03-15-00098-CR
                                                           JEFFREY D. KYLE
V.                                   §         TRIAL COURT NO.  Clerk
                                                                    70,532
                                     §
THE STATE OF TEXAS,                  §
        Appellee                     §


                         BRIEF OF APPELLANT


     Appealed from the 27th Judicial District Court, Bell County, Texas
                      Hon. John Gauntt, presiding




                                         COPELAND LAW FIRM
                                         P.O. Box 399
                                         Cedar Park, TX 78613
                                         Phone: 512.219.8930
                                         E-Mail: tcopeland14@yahoo.com
                                         Tim Copeland
                                         State Bar No. 04801500
                                         Attorney for Appellant




APPELLANT HEREBY WAIVES ORAL ARGUMENT
                           TABLE OF CONTENTS

                                                                               Page

Table of Contents                                                          i

Index of Authorities                                                       ii-iv

Identity of Parties and Counsel                                            1

Statement of the Case                                                      2

Issue Presented                                                            3

      The trial court erred in denying Robinson’s motion to suppress
because the traffic stop which resulted in his arrest was based on a literal
reading of section 545.104 of the Transportation Code which leads to
the absurd result that a turn signal is required in all circumstances.


Statement of Facts                                                         4

Summary of the Argument                                                    6

Issue                                                                      6

Statement of Pertinent Facts                                               7

Argument                                                                   7

Prayer                                                                     10

Certificate of Service and Compliance with Rule 9                          11




                                        i
                          INDEX OF AUTHORITIES

Authorities                                                   Page

                      United States Supreme Court cases

Delaware v. Prouse                                            8
     440 U.S. 648 (1979)

Ornelas v. United States                                      8
     517 U.S. 690 (1996)

United States v. Robinson                                     8
      414 U. S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)

Whren v. United States                                        8
     517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996)

                    Texas Court of Criminal Appeals cases

Boykin v. State                                               11
     818 S.W.2d 782 (Tex. Crim. App. 1991)

Cantu v. State                                                7
     842 S.W.2d 667 (Tex. Crim. App. 1992)

Carmouche v. State                                            7
    10 S.W.3d 323 (Tex. Crim. App. 2000)

Crittenden v. State                                           9
`     899 S.W. 2d 668 (Tex. Crim. App. 1995)

Garcia v. State                                               8
     827 S.W.2d 937 (Tex. Crim. App. 1992)

Guzman v. State                                               8
    955 S.W.2d 85 (Tex. Crim. App. 1997)


                                        ii
                   INDEX OF AUTHORITIES, continued

Authorities                                                            Page

              Texas Court of Criminal Appeals cases, continued

Hines v. State                                                         11
     75 S.W.3d 444 (Tex. Crim. App. 2002)

Oles v. State                                                          7
      933 S.W.2d 103 (Tex. Crim. App. 1999)

State v. Ross                                                          7
       32 S.W.3d 853 (Tex. Crim. App. 2000)

Walter v. State                                                        8
     28 S.W.3d 538 (Tex. Crim. App. 2000)


                      Texas Court of Appeal cases

Blevins v. State                                                 7
      74 S.W.3d 125 (Tex. App. – Ft. Worth, 2002)

Reha v. State                                                    10
     99 S.W. 3d 373 (Tex. App.—Dallas 2003)

                                Statutes

Texas Health and Safety Code section 481.115 (West 2012)         2,4

Texas Code of Criminal Procedure, art. 38.23 (West 2012)         5

Texas Transportation Code, section 545.104 (West 2012)           3,6,9

Texas Transportation Code, section 545.104(a)(b)                 9

                                           iii
                     INDEX OF AUTHORITIES, continued

Authorities                                            Page

                            Constitutions


United States Constitution, Fourth Amendment           8

Texas Constitution                                     4




                                 iv
                      IN THE THIRD COURT OF APPEALS
                             AT AUSTIN, TEXAS

BRIAN VINCENT ROBINSON,                        §
         Appellant                             §
                                               §     CAUSE NO. 03-15-00098-CR
V.                                             §     TRIAL COURT NO. 70,532
                                               §
THE STATE OF TEXAS,                            §
        Appellee                               §

                    IDENTITY OF PARTIES AND COUNSEL

TO THE HONORABLE COURT OF APPEALS:

       COMES NOW, BRIAN VINCENT ROBINSON, appellant, who would

show the Court that interested parties herein are as follows:

       BRIAN VINCENT ROBINSON, appellant, TDCJ No. 01969863, Bartlett

State Jail, Bartlett, Texas 765211

       KURT W. GLASS, trial attorney for appellant, 2608 N. Main St., Ste. B-

135, Belton, Texas 76513.

       TIM COPELAND, appellate attorney for appellant, P.O. Box 399, Cedar

Park, Texas 78613.

       LESLIE McWILLIAMS, and BOB ODOM, Bell                       County Assistant

District Attorneys, trial and appellate attorneys respectively for appellee, the State

of Texas, P.O. Box 540, Belton, Texas 76513.




Cause No. 03-15-00098-CR                                                            1
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
                      IN THE THIRD COURT OF APPEALS
                             AT AUSTIN, TEXAS

BRIAN VINCENT ROBINSON,                        §
         Appellant                             §
                                               §    CAUSE NO. 03-15-00098-CR
V.                                             §    TRIAL COURT NO. 70,532
                                               §
THE STATE OF TEXAS,                            §
        Appellee                               §

                            STATEMENT OF THE CASE

TO THE COURT OF APPEALS:

       Following the trial court’s denial of Brian Vincent Robinson’s motion to

suppress, Mr. Robinson entered a not guilty plea before a jury, and his case

proceeded to trial. (R.R. 2, p. 19). He was eventually convicted of the State Jail

felony offense of possession of cocaine (of less than one gram). (R.R. 5, p. 6) and

see TEX. HEALTH AND SAFETY CODE §481.115 (West 2012). The trial

court assessed punishment of two years’ confinement in the State Jail Division of

the Texas Department of Criminal Justice. (R.R. 1, pp. 17-18). Robinson perfected

an appeal from that verdict and sentence. (C.R. 1, p. 45).




Cause No. 03-15-00098-CR                                                         2
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
                                  ISSUE PRESENTED

       The trial court erred in denying Robinson’s motion to suppress because the

traffic stop which resulted in his arrest was based on a literal reading of section

545.104 of the Transportation Code which leads to the absurd result that a

turn signal is required in all circumstances.




Cause No. 03-15-00098-CR                                                            3
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
                      IN THE THIRD COURT OF APPEALS
                             AT AUSTIN, TEXAS

BRIAN VINCENT ROBINSON,                        §
         Appellant                             §
                                               §    CAUSE NO. 03-15-00098-CR
V.                                             §    TRIAL COURT NO. 70,532
                                               §
THE STATE OF TEXAS,                            §
        Appellee                               §

                               STATEMENT OF FACTS

Indictment

       Robinson was indicted for the offense of possession of cocaine less than one

gram, a State Jail felony, in violation of Texas Health and Safety Code section

481.115(a) (b). See TEX. HEALTH AND SAFETY CODE SECTION                             §

481.115 (a) (b) West 2012).

Motion to Suppress

       On October 23, 2014, the trial court heard Robinson’s motion to suppress

evidence resulting from the traffic stop which led to his arrest on September 25,

2012. Robinson alleged in his motion to suppress that the traffic stop by Sergeant

Tyler McEowen of the Killeen Police Department was made without probable

cause or reasonable suspicion of criminal activity or warrant and that it violated his

rights under both the Texas and United States Constitutions. (C.R. 1, p. 17).




Cause No. 03-15-00098-CR                                                            4
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
Sgt. McEowen’s Testimony at Motion to Suppress

       At the hearing on the motion to suppress, Sgt. McEowen testified that he

received information from a detective with the Organized Crime Division of the

Killeen Police Department that a subject was selling narcotics out of a 2006 silver

Audi. The detective provided the Audi’s temporary license plate number and

instructed McEowen to stop the vehicle if he observed a traffic violation. 1 (R.R. 2,

p. 7). McEowen testified that shortly after 5:00 p.m. he located the car, and he

followed the vehicle for a little while. When he saw the car stop and turn at 18th

and Rancier Streets, he noted that the driver ―failed to signal within 100 feet of that

turn so [he] had a valid traffic violation…and [he] made a vehicle stop of the

vehicle.‖ (R.R. 1, p. 8). (McEowen would also note later that the dealer tags on

the car were ―unreadable‖ from 50’ away – another traffic violation – but his stop

of Robinson’s vehicle was clearly predicated on the failure to signal a turn).

(See

R.R. 2, p. 9 and compare at p. 16)). Once he had the vehicle stopped, McEowen

asked the driver, Robinson, for his license, but Robinson told McEowen that he

had no valid driver’s license. (R.R. 2, p. 10). After running his name, McEowen

arrested Robinson for driving while license suspended. (R.R. 2, pp.11-12). In a

search incident to that arrest, McEowen said that he found a white powdery



Cause No. 03-15-00098-CR                                                             5
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
1
 McEowen was also told the temporary tags on the car had expired, but that information turned
out to be invalid. (See R.R. 2, p. 16 and R.R. 5, p. 22).




Cause No. 03-15-00098-CR                                                                        6
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
substance in Robinson’s right front pocket which field tested positive for cocaine.

(R.R. 2, pp. 13-14). Later analysis confirmed that the substance was, in fact,

cocaine, and its possession became the basis for the conviction here under review.

Trial Court’s Findings

         The trial court denied Robinson’s motion to suppress but made no findings

of fact, and the case proceeded to trial on November 3, 2014. (R.R. 2, p. 19).

                         SUMMARY OF THE ARGUMENT

         The trial court’s ruling which denied Robinson’s motion to suppress was

predicated on a literal reading of Transportation Code section 545.104 to justify

the traffic stop which ultimately resulted in his arrest and subsequent indictment.

A literal reading of the statute, however, leads to an absurd result because the

legislature could not have intended that a turn signal is required in every

circumstance when a driver makes a turn. Instead, the trial court should have

looked at extra-contextual factors in connection with Robinson’s turn to determine

if a turn signal was required under the circumstances. That it did not do so was

error.

                                           ISSUE

         The trial court erred in denying Robinson’s motion to suppress because the

traffic stop which resulted in his arrest was based on a literal reading of section



Cause No. 03-15-00098-CR                                                              7
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
545.104 of the Transportation Code which leads to the absurd result that a turn

signal is required in all circumstances.




Cause No. 03-15-00098-CR                                                          8
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
                     STATEMENT OF PERTINENT FACTS

       In addition to the evidence presented in the ―Background‖ above, other

evidence pertinent to Robinson’s issue is provided in the argument below.

                                    ARGUMENT

Standard of Review

       The trial court’s denial of a motion to suppress is reviewed for abuse of

discretion. Oles v. State, 933 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is

an abuse of discretion ―when the trial judge’s decision is so clearly wrong as to lie

outside that zone within which reasonable persons might disagree.‖ Cantu v.

State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). The appropriate standard of

review for a suppression ruling is a bifurcated review. Blevins v. State, 74 S.W.3d

125 (Tex. App. – Ft. Worth, 2002). An appellate court first affords almost total

deference to the trial court’s determination of the historical facts that the record

supports. Next, the Court of Appeals reviews de novo the trial court’s application

of the law of search and seizure to the facts. State v. Ross, 32 S.W.3d 853 (Tex.

Crim. App. 2000). When, as in the instant case, the trial court does not make

explicit findings of historical fact, the Court of Appeals reviews the evidence

adduced at a suppression hearing in the light most favorable to the trial court’s

ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.               2000).

Although due weight should be given

Cause No. 03-15-00098-CR                                                           9
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
to the inferences drawn by trial judges and law enforcement officers,

determinations of matters such as reasonable suspicion and probable cause should

be reviewed de novo. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App.

1997) (citing Ornelas v. United States, 517 U.S. 690 (1996)).

Applicable Law/Traffic Stops in General

       A law enforcement officer may lawfully stop a motorist who commits a

traffic violation when the officer has probable cause to believe that a traffic

violation has occurred. Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992);

Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000). A traffic stop is a

―seizure‖ within the meaning of the Fourth Amendment even though the purpose

of the stop is limited, and the resulting detention is quite brief. Delaware v.

Prouse, 440 U.S. 648 (1979).

       The Fourth Amendment does not prevent the use of evidence             obtained

during a pretextual stop if an officer has probable cause to believe that the

defendant committed a traffic violation. Whren v. United States, 517             U.S.

806,813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996) (citing United States v.

Robinson, 414 U. S. 218, 221, 236, 94 S. Ct. 467, 470, 477, 38 L. Ed. 2d 427

(1973) (holding that a traffic–violation arrest remains valid despite the fact that it

was a mere pretext for a narcotics search and that a lawful post-arrest search of the

person remains valid even if it was not motivated by the officer–safety concern
Cause No. 03-15-00098-CR                                                           9
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
that justifies such searches)). The ―objective‖ test for pretextual searches and

seizures –followed by Texas courts—deems the officer’s subjective motivation

irrelevant to the determination of whether the seizure was reasonable. Crittenden v.

State, 899 S.W. 2d 668, 671-73 (Tex. Crim. App. 1995).

Section 545.104 of the Transportation Code

       Section 545.104 of the Transportation Code at the time of the offense

provided, in relevant part:

      (a) An operator shall use the signal authorized by Section 545.106 to
          indicate an intention to turn, change lanes, or start from a parked
          position.
      (b) An operator intending to turn a vehicle right or left shall signal
          continuously for not less than the last 100 feet of movement of the
          vehicle before the turn.
                                                   – TEX. TRANSP. CODE
                                                  §545.104(a)(b) (West 2012)
Analysis

       Robinson’s traffic stop was predicated on a violation of §545.104 of the

transportation code as set out above. His argument with regard to McEowen’s

reliance on the statute as justification for his stop is straight forward:

       Applying the plain language of section 545.014 leads to an absurd result

unless a court reads additional language into the statue. That is so because while

the statutory language may at first blush seem to provide a clear, bright-line rule by

which drivers of motor vehicles and police officers may operate, on             closer



Cause No. 03-15-00098-CR                                                            10
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
inspection of the language, it becomes obvious that a literal reading will not work

in every situation, and in some cases, even lead to absurdity.

       Here, there was no evidence adduced that Robinson could have given a

signal at least 100’ before he turned because there was no evidence that the

particular roadway was long enough to afford him that opportunity. Neither was

there any evidence that Robinson had a choice in whether he turned at the

intersection or not. Cf., however, Reha v. State, 99 S.W. 3d 373, 374 (Tex. App.—

Dallas 2003) (Plain language of the statute does not include exceptions for those

situations where there is only one direction to turn). Finally, a literal reading of

the statue ignores the otherwise reasonable and lawful choices available to a driver

in his movements upon a roadway. Where a driver has lawful options available to

him at an intersection, imposing a necessity upon that driver to make a decision on

whether to turn or not before he needs or wants to (as a plain reading of the statute

requires) creates an absurd situation where safety is not furthered and a driver’s

freedom of lawful movement upon the roadway is compromised. In fact, the

absurdity of a literal interpretation of the statute is best illustrated by Officer

McEwoen’s response to a question posed in the suppression hearing:

     Q: So you can’t get to the intersection and say, Hey, there’s a
Whataburger,
           I feel like turning?

       A:     Oh, you can. You would just be violating the law.

Cause No. 03-15-00098-CR                                                          11
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
                                               --R.R. 2, p. 15.

       Thus, a literal reading of the statute as evidenced by the trial court’s decision

here, while suggested by precedent, results in a conclusion that the legislature

could not have intended. Instead, the statute should be read pragmatically. In

determining whether a failure to signal a turn justifies a traffic stop, a reviewing

court should look to extracontextual factors to arrive at a sensible interpretation of

the statute. See Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) and

Hines v. State, 75 S.W.3d 444 (Tex. Crim. App. 2002). Here, there were no

extracontextual factors that, under the circumstances and to avoid an absurd result,

would indicate Robinson was required to signal a turn. No evidence suggests, for

example, the implication of any safety factors from the turn that would impact the

arresting officer’s decision to make a traffic stop. Without such context, Officers

McEowen’s traffic stop was without probable cause. Thus, the trial court erred in

denying Robinson’s motion to suppress.

                                         PRAYER

       WHEREFORE, Robinson prays that this Court of Appeals reverse the

judgment of the trial court and order an acquittal, or in the alternative, remand for a

new trial in keeping with its findings herein including a remand for consideration

of extracontextual factors in determining whether his traffic stop was made with

probable cause.

Cause No. 03-15-00098-CR                                                             12
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
                                           COPELAND LAW FIRM
                                           Cedar Park, TX 78613
                                           Phone: 512.897.8196
                                           Fax: 512.215.8114
                                           Email: tcopeland14@yahoo.com

                                           By:   /s/ Tim Copeland
                                                 Tim Copeland
                                                 State Bar No. 04801500
                                                 Attorney for Appellant

                      CERTIFICATE OF SERVICE AND OF
                         COMPLIANCE WITH RULE 9

      This is to certify that on May 19, 2015, a true and correct copy of the above
and foregoing document was served on Bob Odom, Bell County Assistant District
Attorney, P.O. Box 540, Belton, Texas 76513, in accordance with the Texas Rules
of Appellate Procedure, and that the Brief of Appellant is in compliance with Rule
9 of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2268 words.

                                                 /s/ Tim Copeland
                                                     TimCopeland




Cause No. 03-15-00098-CR                                                        13
Brian Vincent Robinson v. The State of Texas
Brief of Appellant
