                                                                               ACCEPTED
                                                                           03-15-00065-CR
                                                                                   6161368
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                      7/21/2015 3:21:27 PM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                         NO. 03-15-00065-CR

__________________________________________________________________
                                                         FILED IN
                                                   3rd COURT OF APPEALS
                IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                THIRD SUPREME JUDICIAL DISTRICT7/21/2015 3:21:27 PM
                          AUSTIN, TEXAS              JEFFREY D. KYLE
                                                          Clerk
__________________________________________________________________

                ELIZABETH ANN BLACK, APPELLANT

                                 VS.

                 THE STATE OF TEXAS, APPELLEE
__________________________________________________________________

                         ON APPEAL FROM
              COUNTY COURT-AT-LAW NUMBER FIVE
                      TRAVIS COUNTY, TEXAS
                    CAUSE NO. C1-CR-13-217530
__________________________________________________________________

                    APPELLANT’S REPLY BRIEF
__________________________________________________________________

                                    MERIL “GENE” ANTHES, JR.
                                    State Bar No. 24040125
                                    Gene@GBAfirm.Com
                                    CHRISTOPHER M. GUNTER
                                    State Bar No. 08624600
                                    Chris@GBAfirm.Com
                                    GUNTER, BENNETT & ANTHES, P.C.
                                    600 West Ninth Street
                                    Austin, Texas 78701-2212
                                    (512) 476-2494
                                    (512) 476-2497 Facsimile
                                    Attorneys for Appellant
__________________________________________________________________

                 ORAL ARGUMENT IS REQUESTED
__________________________________________________________________
                  IDENTITY OF PARTIES AND COUNSEL


1.   Appellant:                              Elizabeth Ann Black

2.   Appellee:                               The State of Texas

3.   Trial counsel for Appellant:            Christopher M. Gunter and
                                             Meril “Gene” Anthes, Jr.
                                             Gunter, Bennett & Anthes, P.C.
                                             600 West Ninth Street
                                             Austin, Texas 78701

4.   Trial counsel for the State:            Christyne Harris Schultz
                                             Assistant County Attorney
                                             Travis County, Texas
                                             P.O. Box 1748
                                             Austin, Texas 78767

5.   Counsel on appeal for Appellant:        Meril “Gene” Anthes, Jr. and
                                             Christopher M. Gunter
                                             Gunter, Bennett & Anthes, P.C.
                                             600 West Ninth Street
                                             Austin, Texas 78701

6.   Counsel on appeal for the State:        Giselle Horton
                                             Assistant County Attorney
                                             Travis County, Texas
                                             P.O. Box 1748
                                             Austin, Texas 78767

7.   Trial Judge:                           The Honorable Nancy Hohengarten
                                            County Court-at-Law No. Five
                                            Travis County, Texas
                                            Blackwell/Thurman Criminal Justice Center
                                            509 West 11th, 4th Floor
                                            Austin, Texas 78701




                                        i
                                         TABLE OF CONTENTS
                                                                                                                PAGE

IDENTITY OF PARTIES AND COUNSEL .........................................................                               i

TABLE OF CONTENTS ........................................................................................ ii

INDEX OF AUTHORITIES................................................................................... iii

ARGUMENT .......................................................................................................... 1

PRAYER ................................................................................................................. 3

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

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




                                                            ii
                             INDEX OF AUTHORITIES

CASES                                                                             PAGE

State v. Duran, 396 S.W3d 563 (Tex. Crim. App. 2013) ..........................     1-2




                                            iii
                         NO. 03-15-00065-CR
__________________________________________________________________

                IN THE COURT OF APPEALS FOR THE
                THIRD SUPREME JUDICIAL DISTRICT
                          AUSTIN, TEXAS
__________________________________________________________________

                   ELIZABETH ANN BLACK, APPELLANT

                                        VS.

                 THE STATE OF TEXAS, APPELLEE
__________________________________________________________________

                         ON APPEAL FROM
              COUNTY COURT-AT-LAW NUMBER FIVE
                      TRAVIS COUNTY, TEXAS
                    CAUSE NO. C1-CR-13-217530
__________________________________________________________________

                    APPELLANT’S REPLY BRIEF
__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      COMES NOW Appellant Elizabeth Ann Black, by and through her

undersigned counsel, and offers Appellant’s Reply Brief, by which Appellant

respectfully shows the Court the following:

                                  ARGUMENT

      The State improperly argues that statements made by Appellant after she

was stopped by Officer Dominguez can be used to justify the stop. State’s Brief 3,

4, 8. A detention is either good or bad at the moment it starts. State v. Duran, 396



                                         1
S.W. 3d 563, 569-570 (Tex. Crim. App. 2013). Information that the officer either

acquired or noticed after a detention or arrest cannot be considered in determining

whether an officer had reasonable suspicion to believe a crime had been committed

or was being committed. Id. at 569.

      It should be noted that in addition to improperly arguing post-detention

statements by Appellant to justify the stop the state misrepresents what Appellant

actually told the officer. For instance, the State asserts, “Black told Rodriguez that

she had seen the barricade but was trying to get home.” State’s Brief at 3. The

videotape, however, makes clear that Appellant told him the opposite, that she

didn’t see a barricade.

      (Officer Dominguez) Did you not see the barricade?

      (Appellant) No, sorry I live right over there.

      (Officer Dominguez) I don’t care where you live…you didn’t see the
      barricade?
      (Appellant) No, I did not.

3 RR State’s Exhibit #1 @ 3:00:30

      In making Appellant’s statements the centerpiece of its argument, the State

ignores the facts that demonstrate a lack of reasonable suspicion to believe

Appellant was committing or had committed a crime:

           The lane in which Appellant was traveling was wide open. 1 RR 18-
            19.




                                          2
            There was no barricade in Appellant’s lane. 1 RR 18-19.

            The police officer was parked behind a barricade in the adjacent lane
             to Appellant’s lane. 1 RR 8, 18-19.

            The officer was not outside his vehicle directing drivers to stop as
             Appellant’s vehicle approached. 3 RR State’s Exhibit 1 @ 2:59:40.
             He was sitting in his vehicle until Appellant’s vehicle was virtually
             even with the officer’s car and he only yelled “Hey” as she drove past
             him. 3 RR State’s Exhibit 1 @ 2:59:42; 2 RR 9-10; 20.

            The officer’s flashing overhead lights were not on as he sat behind the
             barricade. 2 RR 19-20.

            A sign was present informing drivers such as Appellant that Barton
             Springs Rd. was to close at midnight Friday, 21 hours in the future.
             Nothing about the sign indicated the road was then closed. The sign
             read: “Barton Springs Rd. to close Friday 12 a.m. until Monday 3
             a.m.” 2 RR 22-23.

            Appellant did not ignore or fail to heed any sign.

            Appellant did not go around or through any barricade; she simply
             drove past a barricade that was in the adjoining lane.

                                     PRAYER

      For the reasons set out above, Appellant respectfully prays this Court

overrule the trial court’s ruling and order that Appellant’s motion to suppress be

granted.




                                          3
Respectfully submitted,



___________________________
MERIL “GENE” ANTHES, JR.
State Bar No. 24040125
CHRISTOPHER M. GUNTER
State Bar No. 08624600
GUNTER, BENNETT & ANTHES, P.C.
600 West Ninth Street
Austin, Texas 78701-2212
(512) 476-2494
(512) 476-2497 Facsimile
Attorneys for Appellant




 4
                     CERTIFICATE OF COMPLIANCE

      I certify that this document was prepared with Microsoft Word, and that,

according to that program’s word-count function, the sections covered by Texas

Rule of Appellate Procedure 9.4(i) contain 492 words.



                                      ____________________________
                                      MERIL “GENE” ANTHES, JR.
                                      CHRISTOPHER M. GUNTER




                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Appellant’s

Brief sent via certified mail to PO Box 1748, Austin, Texas 78767 to Giselle

Horton, Assistant County Attorney, Travis County, P.O. Box 1748, Austin, Texas

78767, on this the 22nd day of July, 2015.



                                      ____________________________
                                      MERIL “GENE” ANTHES, JR.
                                      CHRISTOPHER M. GUNTER




                                         5
                                          July 21, 2015

Honorable Jeffrey D. Kyle                                               Via Electronic Delivery
Clerk of the Court
Austin Court of Appeals
Price Daniel Sr. Building
209 West 14th Street, Room 101
Austin, Texas 78701

                                            RE:     The State of Texas
                                                    vs.
                                                    Elizabeth Black
                                                    No. 03-15-00065-CR
                                                    On Appeal from Travis County
                                                    Court-at-law Number Five
                                                    Cause No. C1CR-13-217530


Dear Mr. Kyle:

       Enclosed for filing please find Appellant’s Reply Brief in the above-referenced cause.

       Thank you for your assistance in this matter. Please feel free to contact me should you
have any questions.

                                            Best regards,



                                            Gene Anthes

cc:    Giselle Horton
       Assistant Travis County Attorney
       P.O. Box 1748
       Austin, Texas 78767
