Glickman, McClain Edward ( 2016 )

PD-0593-16 PD-0593-16
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/31/2016 10:36:13 AM
Accepted 6/1/2016 3:48:56 PM
ABEL ACOSTA
IN THE TEXAS COURT OF CRIMINAL APPEALS CLERK
MCCLAIN EDWARD § CCA NO. PD-_____-16
GLICKMAN, §
APPELLANT §
§
V. § COA No. 05-15-00974-CR
§
THE STATE OF TEXAS, §
APPELLEE § TC No. 002-87183-2014
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE FIFTH COURT OF APPEALS DISTRICT
OF TEXAS IN CAUSE NUMBER 05-15-00974-CR, APPEALED FROM CAUSE
NUMBER 002-87183-2014 IN THE COUNTY COURT AT LAW NO. 2 OF COLLIN
COUNTY, TEXAS, THE HONORABLE BARNETT WALKER, JUDGE PRESIDING.
§§§
JERRY DEAN KELLY
Attorney At Law,
Dallas County, Texas
The privilege of presenting
oral argument is hereby
respectfully requested. MICHAEL R. CASILLAS,
Attorney At Law,
State Bar No. 03967500
351 S. Riverfront Blvd.,
Dallas, Texas 75207-4399
(214) 748-2200/FAX (214) 748-5202
State Bar No. 03967500
michael@londonlawdfw.com
June 1, 2016
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
IDENTIFICATION OF TRIAL COURT BELOW.. . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . 3
GROUNDS FOR REVIEW ONE THROUGH FIVE .. . . . . . . . . . . . . . . . . . . . 4
Ground One: Did the panel below misinterpret Appellant’s
argument?
Ground Two: Did the panel below approve of the improper
burden shifting in which the trial court engaged?
Ground Three: Did the panel below violate Tex. R. App. P. 47.1?
Ground Four: Did the panel below err by affirming the trial court’s
erroneous suppression ruling without applying the substantive
principles from Ford v. State, 158 S.W.3d 488 (Tex. Crim. App.
2005) and Lothrop v. State, 372 S.W.3d 187 (Tex. Crim. App.
2012) that would have supported – if not compelled – a reversal
of the trial court’s erroneous suppression ruling?
ii
Ground Five: Did the panel below’s conclusion that reasonable
suspicion for a warrantless detention had been adequately shown
constitute error in light of how the panel below failed to apply the
relevant principles from Ford and Lothrop that demonstrated the
erroneous nature of the trial court’s suppression ruling?
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GROUNDS FOR REVIEW
ONE, TWO, AND THREE: ANALYSIS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GROUNDS FOR REVIEW
FOUR AND FIVE: ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF
SERVICE AND COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
COURT OF APPEALS’ OPINION. . . . . . . . . . . . . . . . . . . . . . . . . . . APPENDIX
iii
IDENTITY OF PARTIES AND COUNSEL
Petitioner – (Appellant Below): McClain Edward Glickman
Represented by:
The Honorable Jerry Dean Kelly, Attorney At Law
4131 N. Central Expressway, Suite 110
Dallas, Texas 75204
Michael R. Casillas, Attorney At Law
351 S. Riverfront Blvd.
Dallas, Texas 75207
Respondent – (Appellee Below): The State of Texas
Represented by:
The Honorable Greg Willis, Criminal District Attorney
The Honorable John Rolater, Assistant District Attorney
The Honorable Amy Murphy, Assistant District Attorney
Office of the District Attorney of Collin County, Texas
2100 Bloomdale Road, Suite 100
McKinney, Texas 75071
IDENTIFICATION OF TRIAL COURT BELOW
County Court at Law No. 2
Of Collin County, Texas –
The Honorable Barnett Walker, Judge Presiding
iv
INDEX OF AUTHORITIES
CASES PAGES
Bushell v. Dean, 803 S.W.2d
711 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ford v. State, 158 S.W.3d 488
(Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . ii,iii,1,2,4,5,6,7,8,10,11,12,13
Glickman v. State, No. 05-15-00974-CR,
2016 Tex. App. LEXIS 4860 (Tex.
App. – Dallas May 6, 2016, pet. filed)
(mem. op., not designated for publication).. . . . . . . . . . . . . . . . . . 3,7,8,11,12
Johnson v. State, 938 S.W.2d 65
(Tex. Crim. App. 1997). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Light v. State, 15 S.W.3d 104
(Tex. Crim. App. 2000). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Lothrop v. State, 372 S.W.3d 187
(Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . ii,iii,1,2,4,5,7,9,10,11,13,14
ARTICLES, RULES, CODES, AND CONSTITUTIONS
Tex. R. App. P. 4.1(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tex. R. App. P. 9.4(i)(1) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Tex. R. App. P. 9.4(i)(2)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Tex. R. App. P. 47.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii,4,5,8,9
Tex. R. App. P. 66.3(c) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
v
Tex. R. App. P. 66.3(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Tex. R. App. P. 68.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tex. Transp. Code §545.058(a)(1)-(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,13
Tex. Transp. Code §545.058(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,7,10
vi
IN THE TEXAS COURT OF CRIMINAL APPEALS
MCLAIN EDWARD GLICKMAN, § CCA NO. PD-_____-16
APPELLANT §
§
V. § COA No. 05-15-00974-CR
§
THE STATE OF TEXAS, §
APPELLEE § TC No. 002-87183-2014
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:
The instant petition for discretionary review is filed on behalf of McClain
Edward Glickman (hereinafter Appellant) by and through her undersigned co-
counsel, Jerry Dean Kelly and Michael R. Casillas, Attorneys at Law.
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests that the instant petition be granted. The instant case
presents this Court with a combination of issues involving the manner in which the
opinion below not only misinterpreted Appellant’s argument, but also failed to heed
the relevant portions of Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) and
Lothrop v. State, 372 S.W.3d 187 (Tex. Crim. App. 2012) that had been cited to the
panel below. Accordingly, the privilege of presenting oral argument should be
afforded to discuss how the opinion below failed to address every issue raised and
necessary to the final disposition of the appeal and how the issues raised from Ford
1
and Lothrop compel the issuance of an opinion contrary to that which the panel
below issued. Whether oral argument is granted or not, issuance of an opinion that
reaches the conclusion that is dictated by the proper application of the relevant
principles of Ford and Lothrop would provide beneficial assistance and guidance to
the bench and bar regarding the protection of the rights of members of the populace
in situations involving warrantless detentions. Accordingly, the instant petition for
discretionary review should be granted even if too few of the honorable members of
this honorable Court believe that oral argument should be granted.
STATEMENT OF THE CASE
While Appellant was charged with and convicted of driving while intoxicated
(DWI) as part of a plea bargain agreement, Appellant reserved his right to appeal the
trial court’s ruling on Appellant’s suppression motion. Prior to entering into the plea
bargain agreement, Appellant litigated the legality of the warrantless detention to
which he had been subjected. While the trial court did conduct a pretrial hearing in
regard to Appellant’s motion to suppress, the trial court ultimately denied Appellant’s
motion to suppress. The trial court denied Appellant’s suppression motion even
though the video recording of Appellant’s warrantless detention showed that
Appellant’s act of having driven on the improved shoulder of the roadway had been
committed while the arresting officer – who was traveling faster than Appellant –
2
was rapidly approaching Appellant’s vehicle from a rearward position.
STATEMENT OF PROCEDURAL HISTORY
After Appellant’s suppression motion was litigated and denied by the trial
court, Appellant entered into a plea bargain agreement with the State. Appellant
appealed the trial court’s judgment of conviction to the Court of Appeals for the Fifth
Court of Appeals District in Dallas, Texas (hereinafter “the Dallas Court”). Before
the Dallas Court, Appellant raised a total of two issues: 1) that the trial court
misinterpreted the relevant statute upon which Appellant’s warrantless detention had
been based; and 2) that the evidence had failed to provide sufficient grounds for
reasonable suspicion for the temporary warrantless detention to which Appellant had
been subjected.
The Dallas Court’s initial unanimous opinion was originally issued on March
18, 2016, but Appellant timely filed both a motion for rehearing and a motion for
rehearing en banc. While both of Appellant’s motions for rehearing were denied, the
Dallas Court withdrew its former opinion and subsequently issued another unanimous
panel opinion on May 6, 2016. A copy of the Dallas Court’s final panel opinion that
was issued on May 6, 2016, appears in the attached appendix. Glickman v. State, No.
05-15-00974-CR, 2016 Tex. App. LEXIS 4860 (Tex. App. – Dallas May 6, 2016, pet.
filed)(mem. op., not designated for publication). Since the 30th day after May 6, 2016
3
is the Sunday that is June 5, 2016, the instant petition for discretionary review is
timely so long as it is filed on or before the Monday that corresponds to the date of
June 6, 2016. See Tex. R. App. P. 4.1(a); Tex. R. App. P. 68.2.
GROUNDS FOR REVIEW
1. Did the panel below misinterpret Appellant’s argument?
2. Did the panel below approve of the improper burden shifting
in which the trial court had engaged?
3. Did the panel below violate Tex. R. App. P. 47.1?
4. Did the panel below err by affirming the trial court’s
erroneous suppression ruling without applying the
substantive principles from Ford v. State, 158 S.W.3d
488 (Tex. Crim. App. 2005) and Lothrop v. State, 372
S.W.3d 187 (Tex. Crim. App. 2012) that would have
supported – if not compelled – a reversal of the trial
court’s erroneous suppression ruling?
5. Did the panel below’s conclusion that reasonable
suspicion for a warrantless detention had been adequately
shown constitute error in light of how the panel below
failed to apply the relevant principles from Ford and
Lothrop that demonstrated the erroneous nature of the
trial court’s suppression ruling?
4
ARGUMENT
Grounds For Review One, Two, And Three
1. Did the panel below misinterpret Appellant’s argument?
2. Did the panel below approve of the improper burden shifting
in which the trial court had engaged?
3. Did the panel below violate Tex. R. App. P. 47.1?
In harmony with Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim. App. 2012)
and Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005), Appellant argued to
the panel below regarding how the video recording of his warrantless detention
showed that Appellant had driven on the roadway’s improved shoulder while the
arresting officer was approaching from behind and traveling faster than Appellant’s
vehicle was traveling. (Appellant’s Opening Brief at pp. 17-23, 25-29). Appellant
expressly argued that his act of having driven on the shoulder was consistent with the
portion of the Texas Transportation Code that authorizes driving on a shoulder to
permit “another vehicle traveling faster to pass.” Tex. Transp. Code
§545.058(a)(5)(Appellant’s Opening Brief at pp. 17-23).
The trial court ruled that Appellant had not driven on the shoulder to let the
arresting officer pass. (CR: 57; RR-2: 28). Appellant argued to the Dallas Court that
it was implicit to the trial court’s ruling that the trial court had assumed that
5
Appellant’s act of driving on the shoulder had not been done to permit the arresting
officer to pass. (Appellant’s Opening Brief at pp. 22-23). Appellant reiterated this
argument during oral argument before the Dallas Court and did so by stating that only
Appellant could explain why he had initially driven on the shoulder while the arresting
officer was approaching from behind Appellant at a speed that left no doubt that the
arresting officer was traveling faster the speed at which Appellant was traveling. In
both Appellant’s Opening Brief and Appellant’s oral argument, Appellant relied on
how Ford, 158 S.W.3d at 492 made clear that the warrantless nature of the detention
meant that Appellant had no duty to provide any explanation for his driving and
Appellant’s failure to provide any such explanation was – as a matter of law –
irrelevant to the reasonable-suspicion analysis. (Appellant’s Opening Brief at p. 23).
As part of this argument, Appellant argued to the Dallas Court that the trial
court – by assuming that Appellant had not driven on the shoulder to permit the
arresting officer to pass – had “effectively placed on Appellant the burden of
explaining what had motivated driving the Maxima onto the shoulder.” (Appellant’s
Opening Brief at p. 23). Accordingly, Appellant’s Opening Brief left no doubt that
Appellant argued to the Dallas Court that the trial court had erred by having attributed
to Appellant a certain intent (or lack thereof) relative to Appellant’s act of having
driven on the shoulder. The Dallas Court, however, expressly wrote that, “Appellant
6
cites to no authority that reflects the driver’s motivation is a consideration when
determining whether a detention is legal and we have found none.” Glickman, No.
05-15-00974-CR, 2016 Tex. App. LEXIS 4860, at *6.
By having characterized Appellant’s argument as having been dependent on
Appellant’s motivation for having driven on the shoulder, the Dallas Court has clearly
misinterpreted Appellant’s argument, which on its face faulted the trial court for
having assumed that Appellant act of having initially driven on the shoulder had NOT
been done by Appellant to permit the arresting officer to pass. Again, Appellant cited
Ford, 158 S.W.3d at 492 to the Dallas Court for the propositions that the warrantless
nature of the detention meant that Appellant had no duty at all to explain why he had
driven on the shoulder (in a manner that just happened to be consistent with Tex.
Transp. Code §545.058(a)(5)) and that Appellant’s failure to provide any explanation
for his driving was irrelevant to the reasonable-suspicion analysis – as a matter of law.
(Appellant’s Opening Brief at p. 23).
Finally, Appellant also cited Lothrop, 372 S.W.3d at 191 for the proposition that
Tex. Transp. Code §545.058(a) did not set up any type of burden shifting framework,
which further supported Appellant’s position that he had no duty to provide any
explanation for his conduct that was consistent with that expressly authorized by Tex.
Transp. Code §545.058(a)(5). Having failed to address the actual substantive content
7
of Appellant’s argument regarding how the trial court had attributed to Appellant a
lack of intent, it is hardly surprising that the Dallas Court failed to address Appellant’s
burden-shifting issue in any in-depth manner, as is shown by the Dallas Court’s
wholly conclusory statement that, “Thus, there was no impermissible shifting of
burdens in this case.” Glickman, No. 05-15-00974-CR, 2016 Tex. App. LEXIS 4860,
at *7.
Under the express terms of the relevant provision of the Texas Rules of
Appellate Procedure, all intermediate appellate courts have a duty to issue opinions
that address every issue raised and necessary to the final disposition of the appeal. See
Tex. R. App. P. 47.1. This Court and the Texas Supreme Court have issued opinions
making clear the mandatory nature of the language of Tex. R. App. P. 47.1 and what
compliance therewith requires. See, e.g., Bushell v. Dean, 803 S.W.2d 711 (Tex.
1991); Light v. State, 15 S.W.3d 104 (Tex. Crim. App. 2000); Johnson v. State, 938
S.W.2d 65 (Tex. Crim. App. 1997). By having stated that Appellant was relying on
what his intent was (when Appellant had expressly argued that it had been the trial
court that had attributed to Appellant a lack of intent), the Dallas Court misinterpreted
Appellant’s argument and actually failed to address the issues Appellant raised that
were necessary to the final disposition of the appeal regarding how Appellant had no
duty to explain anything under Ford and how the trial court’s assumption that
8
Appellant had not been initially attempting to let to the arresting officer pass violated
Lothrop by constituting an exercise in improper burden shifting by the trial court (as
to which the Dallas Court then affixed its appellate seal of approval).
Accordingly, this Court should grant grounds one, two, and three of Appellant’s
instant petition for discretionary review and should issue an opinion that makes clear
that intermediate appellate courts may not, consistent with the mandatory language of
Tex. R. App. P. 47.1, misinterpret the issues and arguments made by appellants, but
must address the actual issues and express arguments proffered by any party who
appeals a case to the intermediate appellate court.
9
Grounds For Review Four And Five
4. Did the panel below err by affirming the trial court’s
erroneous suppression ruling without applying the
substantive principles from Ford v. State, 158 S.W.3d
488 (Tex. Crim. App. 2005) and Lothrop v. State, 372
S.W.3d 187 (Tex. Crim. App. 2012) that would have
supported – if not compelled – a reversal of the trial
court’s erroneous suppression ruling?
5. Did the panel below’s conclusion that reasonable
suspicion for a warrantless detention had been adequately
shown constitute error in light of how the panel below
failed to apply the relevant principles from Ford and
Lothrop that demonstrated the erroneous nature of the
trial court’s suppression ruling?
The contents of the video recording of Appellant’s warrantless detention that
was admitted into evidence clearly shows that the act of driving on the improved
shoulder – that was relied on by the arresting officer and the trial court – occurred
concomitantly with the arresting officer’s approaching from the rear and traveling
faster than Appellant’s car. Accordingly, Appellant – based on the combination of
Lothrop and Ford – directly and expressly argued to the Dallas Court that insufficient
grounds for reasonable suspicion had been demonstrated because the State’s evidence
showed initial conduct by Appellant that was consistent with the portion of Tex.
Transp. Code §545.058(a)(5) that permits a driver to drive on the shoulder so as to let
a vehicle traveling faster to pass. (Appellant’s Opening Brief at pp. 25-30).
10
In support of his arguments, Appellant cited Ford’s propositions that the
warrantless nature of Appellant’s detention meant that Appellant had no duty to prove
that the arresting officer’s detention had been improper and that Appellant’s “failure”
to prove the impropriety of the arresting officer’s detention was – as a matter of law
– irrelevant to the reasonable-suspicion analysis. (Appellant’s Opening Brief at pp.
28-29). Appellant also cited Lothrop’s proposition that evidence that a motorist’s
driving was safely done and consistent with one of the approved purposes of Tex.
Transp. Code §545.058(a)(1)-(7) failed as a matter of law to provide reasonable
suspicion that any offense had been committed, such that no detention could be legally
or properly based thereon. (Appellant’s Opening Brief at pp. 26-27).
Despite Appellant’s citation of the aforementioned principles from Ford and
Lothrop and despite the fact that the State’s evidence showed only that Appellant’s
initial act of driving on the shoulder had been consistent with a decision by Appellant
to let the approaching arresting officer (who was traveling faster than Appellant) to
pass, the Dallas Court’s opinion made only passing mention of the relevant portion of
Lothrop and failed in any way to mention – much less address – the relevant portion
of Ford upon which Appellant had relied. See Glickman, No. 05-15-00974-CR, 2016
Tex. App. LEXIS 4860, at *4-8. Moreover, the Dallas Court’s glossing over of the
relevant portion of Lothrop was based on the trial court’s conclusion that Appellant
11
had not initially driven on the shoulder to let the arresting officer to pass, which such
conclusion the Dallas Court then adopted as its own in concluding that there was no
error in the trial court’s suppression ruling. See Glickman, No. 05-15-00974-CR,
2016 Tex. App. LEXIS 4860, at *6, 8.
By having adopted the trial court’s ruling that was based on having attributed
to Appellant a lack of intent for the initial act of driving on the shoulder, the Dallas
Court not only provided further proof of its misinterpretation of Appellant’s argument
(as was discussed in regard to Appellant’s first ground for review), but also ruled
against Appellant based on Appellant’s failure to provide an explanation for why he
had driven on the shoulder. See Glickman, No. 05-15-00974-CR, 2016 Tex. App.
LEXIS 4860, at *6, 8. In light of how Ford makes clear that, in the context of a
warrantless detention, any motorist’s failure to provide an explanation for his or her
driving is – as a matter of law – irrelevant to the reasonable suspicion analysis, the
Dallas Court clearly violated Ford by affirming the trial court’s erroneous suppression
ruling through the acceptance, reiteration, and application of the ruling that Appellant
had not committed the act of driving on the shoulder as part of an initial decision to
let the arresting officer pass. See Ford, 158 S.W.3d at 492 (“[W]hether Ford attempted
to refute the existence of sufficient suspicion is irrelevant to the reasonable-suspicion
analysis.”). Moreover, since the State’s own evidence showed that Appellant’s initial
12
act of driving on the shoulder had been consistent with Tex. Transp. Code
§545.058(a)(1)-(7) and Lothrop’s interpretation thereof (which expressly included a
hypothetical example of having driven on the shoulder to permit a car traveling faster
to pass), the Dallas Court clearly violated Lothrop by affirming the trial court’s
erroneous suppression ruling when the evidence supported the conclusion that
Appellant had committed the act of driving on the shoulder as part of an initial
decision to let the arresting officer pass. See Lothrop, 437 S.W.3d at 191.
Accordingly, this Court should grant grounds four and five of Appellant’s
instant petition for discretionary review and should issue an opinion that makes clear
that intermediate appellate courts may not, consistent with the cited portions of Ford
and Lothrop, properly affirm suppression rulings by in effect requiring Appellants to
provide explanations for warrantless detentions they were subjected to based on
conduct that was consistent with that which the Legislature has deemed legal by
express statutory provision.
Based on all the aforementioned reasons and the legal authority cited in
conjunction therewith, Appellant’s grounds for review one through five should be
granted pursuant to the express terms of Tex. R. App. P. 66.3(c) because the Dallas
Court has expressly decided an important question of state law in a way that conflicts
substantively with the principles of this Court’s applicable binding decisions in Ford
13
and Lothrop. Appellant’s five grounds for review should also be granted pursuant to
the express terms of Tex. R. App. P. 66.3(f) because the Dallas Court, by having
committed the aforementioned errors that are so completely contrary to this Court’s
applicable, binding precedents has so far departed from the accepted and usual course
of judicial proceedings as to fully justify this Court’s exercise of its supervisory
powers.
Accordingly, this Court should review the decision of the Dallas Court based
on the substantive content of Appellant’s five grounds for review and should – based
upon and consistent with the legal authority cited in support thereof – reverse the
judgment of the Dallas Court in Appellant’s case.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
will first grant Appellant’s instant petition for discretionary review and then ultimately
issue an opinion concluding that the State’s evidence failed to provide sufficient
grounds for a finding of reasonable suspicion, such that the trial court erred in denying
Appellant’s suppression motion.
Respectfully submitted,
JERRY DEAN KELLY
14
Attorney At Law
Dallas County, Texas
/s/ Michael R. Casillas
MICHAEL R. CASILLAS,
Attorney At Law,
State Bar No. 03967500
351 S. Riverfront Blvd.
Dallas, Texas 75207
(214) 748-2200/FAX (214) 748-5202
michael@londonlawdfw.com
15
CERTIFICATE OF SERVICE AND COMPLIANCE
I hereby certify that – no later than June 13, 2016 – a true, electronically-
formatted copy of the instant Petition for Discretionary Review was served on
opposing counsel, the Hon. John Rolater and was also served on the State’s
Prosecuting Attorney, the Hon. Lisa McMinn by use of the electronic service function
that accompanies the filing of the instant Petition for Discretionary Review with this
Court through the electronic filing service provider to which Appellant’s counsel
subscribes.
Furthermore, I hereby certify – based on the word count function of the word-
processing software program with which the instant Petition for Discretionary Review
was drafted – that the relevant portions of the instant Petition for Discretionary
Review – as defined by Tex. R. App. P. 9.4(i)(1) – contain 2,348 words. Accordingly,
I hereby certify that instant Petition for Discretionary Review contains 2,348 words
and does not contain more than the 4,500 words permitted by Tex. R. App. P.
9.4(i)(2)(D).
/s/ Michael R. Casillas
MICHAEL R. CASILLAS
16
APPENDIX:
COURT OF APPEALS’ OPINION
Glickman v. State, 2016 Tex. App. LEXIS
4860
1. Copy Citation
Court of Appeals of Texas, Fifth District, Dallas
May 6, 2016, Opinion Filed
No. 05-15-00974-CR
Reporter
2016 Tex. App. LEXIS 4860
MCCLAIN EDWARD GLICKMAN, Appellant v. THE STATE OF TEXAS, Appellee
Notice:
PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR
CITATION OF UNPUBLISHED OPINIONS.
Prior History:
[1] On Appeal from the County Court at Law No. 2, Collin County, Texas. Trial
Court Cause No. 002-87183-2014.
Glickman v. State, 2016 Tex. App. LEXIS 2865 (Tex. App. Dallas, Mar. 18, 2016)
Core Terms
shoulder, improved, trial court, driving, reasonable suspicion, traffic, traveling,
purposes, suppress, detention, detain
Case Summary
Overview
HOLDINGS: [1]-The trial court did not err in denying defendant's motion to
suppress evidence in his DWI case, because the officer had a reasonable suspicion
that defendant had committed the offense of driving on an improved shoulder in
violation of Tex. Transp. Code Ann. § 545.058 (2011) when he detained defendant;
[2]-The trial court found that none of the enumerated purposes in Tex. Transp.
Code Ann. § 545.058 existed at the time defendant drove his vehicle on an
improved shoulder; [3]-The evidence did not compel the conclusion that defendant
was pulling over to permit the officer to pass when he drove on the shoulder; [4]-
Defendant cited to no authority that reflected the driver's motivation was a
consideration when determining whether a detention was legal.
Outcome
Order affirmed.
LexisNexis® Headnotes
Criminal Law & Procedure > Preliminary Proceedings > Pretrial Motions &
Procedures > Suppression of Evidence
Criminal Law & Procedure > Appeals > Standards of Review
Criminal Law & Procedure > Trials > Witnesses > Credibility
Evidence > Weight & Sufficiency
Evidence > Types of Evidence > Testimony > Credibility of Witnesses
HN1 The appellate court reviews a trial court's ruling on a motion to suppress for
abuse of discretion. The trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Thus, the appellate court
affords almost total deference to a trial court's determination of historical facts
supported by the record which are based upon evaluation of credibility and
demeanor of the witnesses. The findings of fact of the trial court, which find
support in the record, and the rational inferences drawn from the supported facts,
are entitled to deference on appeal. However, the legal conclusion drawn from
those facts is reviewed de novo. Shepardize - Narrow by this Headnote
Criminal Law & Procedure > ... > Standards of Review > De Novo Review >
Conclusions of Law
HN2 Questions involving legal principles and the application of law to established
facts are reviewed de novo. Shepardize - Narrow by this Headnote
Criminal Law & Procedure > ... > Warrantless Searches > Stop & Frisk > Detention
Criminal Law & Procedure > ... > Warrantless Searches > Stop & Frisk >
Reasonable Suspicion
HN3 An officer conducts a lawful temporary detention when he or she has
reasonable suspicion to believe that an individual is violating the law. Reasonable
suspicion exists if the officer has specific, articulable facts that, when combined
with rational inferences from those facts, would lead him to reasonably conclude
that a particular person actually is, has been, or soon will be engaged in criminal
activity. Shepardize - Narrow by this Headnote
Transportation Law > Private Vehicles > Traffic Regulation
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Traffic
Regulation Violations
HN4 Driving on an improved shoulder is not permitted unless it is necessary and
may be done safely, but only for one of the following purposes: (1) to stop, stand,
or park; (2) to accelerate before entering the main travelled lane of traffic; (3) to
decelerate before making a right turn; (4) to pass another vehicle that is slowing or
stopped on the main traveled portion of the highway, disabled, or preparing to
make a left turn; (5) to allow another vehicle traveling faster to pass; (6) as
permitted or required by an official traffic-control device; or (7) to avoid a
collision. Tex. Transp. Code Ann. § 545.058 (2011). Shepardize - Narrow by this
Headnote
Criminal Law & Procedure > ... > Warrantless Searches > Stop & Frisk >
Reasonable Suspicion
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Traffic
Regulation Violations
HN5 The offense of illegally driving on an improved shoulder can be proved in one
of two ways: either driving on the improved shoulder was not a necessary part of
achieving one of the seven approved purposes, or driving on the improved shoulder
could not have been done safely. Thus, if an officer sees a driver driving on an
improved shoulder, and it appears that driving on the improved shoulder was
necessary to achieving one of the seven approved purposes, and it is done safely,
that officer does not have reasonable suspicion that an offense occurred.
Shepardize - Narrow by this Headnote
Criminal Law & Procedure > ... > Warrantless Searches > Stop & Frisk >
Reasonable Suspicion
Criminal Law & Procedure > Search & Seizure > Warrantless Searches >
Investigative Stops
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure
HN6 The Fourth Amendment inquiry is focused on whether the arresting officer
made an objectively reasonable traffic stop, not the driver's intention or explanation
for seemingly unlawful behavior. To make an investigative stop, the officer must
possess a reasonable suspicion based on specific, articulable facts that, in light of
the officer's experience and general knowledge, would lead the officer to
reasonably conclude the person detained actually is, has been, or soon will be
engaged in criminal activity. Shepardize - Narrow by this Headnote
Counsel: For Appellants: Jerry Kelly, S. Craig Glickman, Michael R. Casillas,
Dallas, TX.
For Appellants:Amy Sue Melo Murphy, John R. Rolater, McKinney, TX.
Judges: Before Justices Fillmore, Stoddart, and Schenck. Opinion by Justice
Schenck.
Opinion by: DAVID J. SCHENCK
Opinion
MEMORANDUM OPINION
Opinion by Justice Schenck
We withdraw our opinion of March 18, 2016 and substitute this opinion in its
place. Appellant McClain Edward Glickman appeals the trial court's order denying
his motion to suppress evidence in his driving while intoxicated (DWI) case. In two
issues, appellant argues the trial court misinterpreted and misapplied the law and
the evidence does not support appellant's detention. Because the trial court did not
misapply the law and the evidence supports a finding of reasonable suspicion to
detain appellant, we affirm the trial court's order denying appellant's motion.
Because all issues are settled in law, we issue this memorandum opinion. Tex. R.
App. P. 47.4.
Background
Appellant was charged with DWI and with having previously been convicted of DWI.
Prior to entering a plea of guilty, appellant moved to suppress all evidence obtained
as a result of the traffic stop, alleging Officer Delia Rangel did not have reasonable
suspicion to detain him.
At the hearing on appellant's [2] motion, the State called Officer Rangel to testify. She
was the sole witness to testify at the hearing. She testified that on December 1, 2013,
at approximately 11:00 p.m., she was dispatched to northbound Central Expressway,
west of Bethany Road, in response to a 911 call reporting a Nissan Maxima traveling
north on Central Expressway was speeding and swerving. Officer Rangel testified
there were few cars on the road at that time and only one silver Nissan Maxima. She
identified appellant as the driver of that vehicle. Officer Rangel stated she saw the
vehicle driving on the improved shoulder for no apparent reason. The vehicle then
swerved into the right lane, then into the center lane, and then back to the right lane
all without signaling. Officer Rangel concluded appellant had committed the traffic
offenses of driving on an improved shoulder and changing lanes without signaling. In
addition to Officer Rangel's testimony, the State offered a copy of the 911 call and the
police vehicle's in-car video of the stop. The trial court admitted the recordings into
evidence and they were published at the hearing.
After hearing the testimony of Officer Rangel and viewing the video of the traffic [3]
stop, the trial court noted the video shows that at the hour of 22:35:03 all four tires of
appellant's car were on the improved shoulder and that nine seconds later the car
swerved into the center lane. The trial court found none of the seven approved
purposes for driving on an improved shoulder were present when appellant operated
his vehicle on the improved shoulder. The trial court concluded appellant violated
Texas Transportation Code section 545.058 and such violation provided justification
for the stop and detention. Accordingly, the trial court denied appellant's motion to
suppress.
Standard of Review
HN1 We review a trial court's ruling on a motion to suppress for abuse of discretion.
See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). The trial court is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000) (en
banc). Thus, we afford almost total deference to a trial court's determination of
historical facts supported by the record which are based upon evaluation of credibility
and demeanor of the witnesses. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997) (en banc). Consequently, the findings of fact of the trial court, which find
support in the record, and the rational inferences drawn from the supported facts, are
entitled to deference on appeal. See Manzi v. State, 88 S.W.3d 240, 243 (Tex. Crim.
App. 2002). However, [4] the legal conclusion drawn from those facts is reviewed de
novo. See Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) (holding HN2
questions involving legal principles and the application of law to established facts are
reviewed de novo).
Discussion
In this case, the State stipulated appellant was arrested without a warrant. Therefore,
the State had the burden to prove that the initial detention was legal. Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005) (citing Bishop v. State, 85 S.W.3d 819, 822
(Tex. Crim. App. 2002) (en banc).
HN3 An officer conducts a lawful temporary detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Id. (citing Balentine v.
State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists if the
officer has specific, articulable facts that, when combined with rational inferences
from those facts, would lead him to reasonably conclude that a particular person
actually is, has been, or soon will be engaged in criminal activity. Id. (citing Garcia
v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
Officer Rangel testified she observed appellant's vehicle cross over onto the improved
shoulder on the solid white line. This according to the officer was the traffic offense
of driving on the improved shoulder. Tex. Transp. Code Ann. § 545.058 (West 2011).
HN4 Driving on an improved shoulder is not permitted unless it is necessary and may
be done safely, but only for one of the following purposes:
(1) to stop, stand, or [5] park;
(2) to accelerate before entering the main travelled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
Id.
Appellant's first issue has two sub-parts. In the first sub-part, appellant argues the trial
court's statement during the hearing that the statute at issue contains a three-part test
and applies if driving on an improved shoulder is necessary, done in a safe manner,
and done for one of the seven enumerated reasons, establishes it misinterpreted and
misapplied the law. Appellant cites Lothrop v. State for the proposition that the
concept of being necessary is not a free-standing requirement, but rather is tied to one
of the seven enumerated purposes. 372 S.W.3d 187, 190 (Tex. Crim. App. 2012). In
Lothrop v. State, the Texas Court of Criminal Appeals stated HN5 the offense of
illegally driving on an improved shoulder can be proved in one of two ways: either
driving on the improved shoulder was not a necessary part of achieving [6] one of the
seven approved purposes, or driving on the improved shoulder could not have been
done safely. Id. at 191. Thus, if an officer sees a driver driving on an improved
shoulder, and it appears that driving on the improved shoulder was necessary to
achieving one of the seven approved purposes, and it is done safely, that officer does
not have reasonable suspicion that an offense occurred. Id. In this case, the trial court
found none of the enumerated purposes in section 545.058 existed at the time
appellant drove his vehicle on an improved shoulder. Thus, an analysis of necessity
did not come into play and the trial court did not misapply the law. We overrule the
first sub-part of appellant's first issue.
In the second sub-part, appellant argues the trial court in effect placed a burden on
appellant to explain what motivated him to drive his vehicle on the shoulder.
Appellant cites to no authority that reflects the driver's motivation is a consideration
when determining whether a detention is legal and we have found none.HN6 The
Fourth Amendment inquiry is focused on whether the arresting officer made an
objectively reasonable traffic stop, not the driver's intention or explanation for
seemingly unlawful behavior. Crittenden v. State, 899 S.W.2d 668, 671 (Tex. Crim.
App. 1995). To make [7] an investigative stop, the officer must possess a reasonable
suspicion based on specific, articulable facts that, in light of the officer's experience
and general knowledge, would lead the officer to reasonably conclude the person
detained actually is, has been, or soon will be engaged in criminal activity. Garcia, 43
S.W.3d at 530. Thus, there was no impermissible shifting of burdens in this case. We
overrule the second sub-part of appellant's first issue.
In his second issue, appellant argues the evidence established Officer Rangel's vehicle
traveled at a speed that allowed her to overtake appellant's vehicle and therefore it was
a vehicle traveling faster that would justify appellant driving onto the improved
shoulder to let her vehicle pass. In support of this argument, appellant contends the
light emanating from the headlights of Officer Rangel's patrol car alerted appellant the
vehicle behind him was closing the gap between the vehicles and justified his decision
to turn his vehicle onto the improved shoulder of the highway. Nevertheless,
appellant's argument and the record do not support the conclusion that the trial court
abused its discretion in finding the officer was justified in stopping and detaining [8]
appellant. The video recording shows appellant did not pull over to let Officer Rangel
pass, rather he drove onto the shoulder for approximately 9 seconds and then moved
into the right lane, then the center lane, and then back to the right lane. During that
time, Officer Rangel did not pass appellant's vehicle. Thus, the evidence before the
trial court does not compel the conclusion that appellant was pulling over to permit
Officer Rangel to pass when he drove on the shoulder and the trial court did not err
in denying appellant's motion to suppress. We overrule appellant's second issue.
Conclusion
We conclude the evidence supports a finding that Officer Rangel had a reasonable
suspicion that appellant had committed a traffic violation when she detained him.
Accordingly, we affirm the trial court's order denying appellant's motion to suppress.
/s/ David J. Schenck
DAVID J. SCHENCK
JUSTICE
Do Not Publish
Tex. R. App. P. 47
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 6th day of May, 2016.