                                                                                ACCEPTED
                                                                           01-13-00546-CR
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                      4/17/2015 1:09:55 PM
                                                                       CHRISTOPHER PRINE
                                                                                    CLERK



                  No. 01-13-00546-CR
__________________________________________
                                      FILED IN
                                1st COURT OF APPEALS
                                                      HOUSTON, TEXAS
                                                   4/17/2015 1:09:55 PM
                          IN THE                   CHRISTOPHER A. PRINE
             FIRST DISTRICT COURT OF A       PPEALS        Clerk
                     HOUSTON, TEXAS
__________________________________________
                    STEVEN GOLDEN,
                           Appellant
                              V.
                  THE STATE OF TEXAS,
                            Appellee

                     ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

                      CAUSE NO. 1833897
    ON APPEAL FROM THE COUNTY CRIMINAL COURT AT LAW NO. 4
                    HARRIS COUNTY, TEXAS

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  MOTION FOR EN BANC RECONSIDERATION BY
        APPELLANT STEVEN GOLDEN
                     ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯


                                   GARY S. MILLER
                                   Attorney for Steven Golden
                                   State Bar No: 24051050
                                   1018 Preston St., Suite 500
                                   Houston, TX 77002
                                   tel: (713) 223-4200
                                   fax: (713) 222-7022
                                   gary@millerlindsey.com
            PROCEDURAL HISTORY OF APPELLANT’S CASE

      Appellant was charged by criminal information with the Class B

misdemeanor of driving while intoxicated in County Criminal Court at Law No. 4,

Harris County, Texas. Appellant filed a Motion to Suppress all evidence obtained

as a result of his warrantless detention and arrest by law enforcement. After a

pretrial hearing held on June 6, 2013, and June 20, 2013, the trial court denied

Appellant’s motion. Pursuant to the pre-hearing agreement with the State,

Appellant entered a guilty plea to 30 days in the Harris County Jail without a fine.

This appeal was abated and the trial court was ordered to file Finding of Facts and

Conclusions of Law. The trial court filed Findings of Fact and Conclusions of Law

on December 2, 2013. A panel issued the Opinion in Appellant’s case on February

5, 2015.

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                         PRELIMINARY STATEMENT

      The Panel’s reliance should have been based solely on Deputy Nguyen’s

knowledge at the inception of the traffic stop - by considering only the information

actually known by or available to him at that time. State v. Duran, 396 S.W.3d

563, 568–569 (Tex. Crim. App. 2013). Nguyen’s knowledge was insufficient to

justify the traffic stop since he lacked any specific articulable facts that a criminal

offense had or was occurring. Ford v. State, 158 S.W.3d 488 (Tex. Crim. App.

2005). The Panel’s opinion ignored factual distinctions and relied upon

assumptions in order to equate Appellant’s factual situation to Navarette v.

California, 134 S. Ct. 1683 (2014). Deputy Nguyen conducted the traffic stop on

Appellant’s vehicle without a particular and objective basis for suspecting criminal

activity unlike the state trooper Navarette whom had been informed prior to the

traffic stop by the 911 dispatcher that “[the suspect] Ran the reporting party off

the roadway.” The Opinion mistakenly attributes factual observations provided by

the citizen tipster subsequent to the traffic stop - as being conveyed to Deputy

Nguyen prior to the traffic stop.




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GROUNDS: THE OPINION IGNORED DEPUTY NGUYEN’S LACK OF
KNOWLEDGE OF ANY PARTICULAR AND OBJECTIVE FACTUAL
BASIS FOR STOPPING APPELLANT’S VEHICLE AT THE INCEPTION
OF THE TRAFFIC STOP

       Deputy Nguyen had no knowledge regarding Appellant’s driving activities

at the inception of the traffic stop; therefore, it was factually impossible for him to

have a particularized and objective basis for suspecting Appellant’s criminal

activity from the conclusory tip that there might be an “intoxicated driver.” All

information that theoretically could have justified a traffic stop was acquired from

Polasek by Deputy Nguyen or Deputy Trevino after Appellant was already

stopped.    Under Naverette, “The Fourth Amendment permits brief investigative

stops— such as the traffic stop in this case — when a law enforcement officer has

“a particularized and objective basis for suspecting the particular person stopped of

criminal activity.” Naverette at 1687, citing United States v. Cortez, 449 U. S. 411,

417– 418 (1981); see also Terry v. Ohio, 392 U. S. 1, 21–22 (1968).            Deputy

Nguyen testified he only knew the following facts that were relayed to him prior to

initiating the traffic stop:

           1. A white pickup truck with a stripe. (RR II, 18, 40);

           2. License plate number AU-87773. (RR II, 18);

           3. Maybe “an intoxicated driver”, (RR II, 13); But “I don't remember

              that.” (RR II, 14);

           4. HEB parking lot near Bellaire and Highway 6 (RR, 30);
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         5. Vehicle in motion (RR II, 20).

      That is the extent of Deputy Nguyen’s knowledge at the time of Appellant’s

detention. Under State v. Duran, “In determining whether an officer is justified in

making a Terry stop, courts use an objective standard: Would a reasonable officer

in the same situation believe a crime had been or was being committed? This

objective standard requires reviewing courts to place themselves in the shoes of the

officer at the time of the inception of the stop—considering only the information

actually known by or available to the officer at that time.” Duran at 569. The

Opinion failed to adequately discuss Deputy Nguyen’s knowledge at the inception

of the stop; instead, the Opinion mistakenly attributes knowledge to him that was

not found in the record during his own testimony. Nguyen, in fact, had not been

informed of of any detailed facts of Appellant’s driving that the Opinion attributed

to him. Nguyen did not receive “contemporaneously relayed observations”

between the 911 operator and Polasek as the Opinion misstates on Page 8. Instead,

the Court should have determined whether,“Information that the officer either

acquired or noticed after a detention or arrest cannot be considered. A detention is

either good or bad at the moment it starts.” Id. at 569-570. This factual

determination was not done at all when considering Appellant’s case.

      The Panel shouldn’t have disregard its responsibility to examine Nguyen’s

knowledge because there were no direct observations by him of any traffic

offenses, “Normally, this inquiry ‘presents no significant problem, for most traffic
                                         !5
stops are made based upon the direct observations of unambiguous conduct of

circumstances by the stopping officer.’ But sometimes an issue arises as to what the

officer actually saw or knew at the time that he made a traffic stop.” Duran at 569,

citing Wayne R. LaFave, Search and Seizure Sec. 9.3(a), at 772—73 (5th ed.

2012). A post-hoc rationalization for a traffic stop cannot be made on the basis of

information learned personally or acquired from other officers after the stop.

Duran at 570.     This is exactly what the Court’s Opinion did — by attributing

knowledge acquired by either the 911 dispatcher or Deputy Trevino to what

Trevino knew at the inception of Appellant’s traffic stop.       The citizen tipster,

Polasek, testified that he described his observations of Appellant’s driving to the

911 operator, however, no 911 dispatch recording was introduced by the State

during Appellant’s suppression hearing. The State failed to present evidence at the

hearing that Deputy Nguyen was actually informed by the 911 dispatcher regarding

the factual details Polasek claimed that he told them.        Thus, no evidence is

contained in the record that Nguyen had any knowledge of Appellant’s alleged

driving because no evidence exists that it was actually conveyed to him prior to the

stop.

        Nothing was corroborated that indicated any criminal activity was afoot —

under the FOURTH AMENDMENT citizens are protected from unreasonable search

and seizures at the inception of the traffic stop based upon the information actually

received by the officer prior to the stop.
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                                 CONCLUSION

      Appellant respectfully urges this Panel to withdraw the opinion issued on

February 5, 2015, and issue a new opinion reversing the trial court’s denial of his

suppression motion and remand for a new trial or grant this request for an En Banc

reconsideration.


                                      /S/ GARY S. MILLER
                                      GARY S. MILLER
                                      Attorney for Steven Golden
                                      State Bar No: 24051050
                                      1018 Preston St., Suite 500
                                      Houston, TX 77002
                                      Tel: (713) 223-4200
                                      Fax: (713) 222-7022
                                      gary@millerlindsey.com

                              ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

                      CERTIFICATE OF COMPLIANCE

      I, Gary S. Miller, hereby certify that the Appellant’s Motion for En Banc

Reconsideration contains 1,315 words according to Apple Pages ver. 5.5.2 which

was used to generate this document according to TEX. R. APP. P. 9.4 (3).


                                      /S/ GARY S. MILLER
                                      GARY S. MILLER




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                           CERTIFICATE OF SERVICE

      Appellant will electronically deliver by e-mail a copy of the foregoing

instrument to Harris County Assistant District Attorney Carly Dessauer, counsel for

the State of Texas, after e-filing:

                                       /S/ GARY S. MILLER
                                       GARY S. MILLER


Date: April 17, 2015




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