David Mark Davis II v. State ( 2014 )

ACCEPTED
12-14-00296-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/26/2014 11:03:31 AM
CATHY LUSK
CLERK
CASE NO. 12-14-00296-CR
IN THE TEXAS COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
TWELFTH SUPREME JUDICIAL DISTRICT
12/26/2014 11:03:31 AM
CATHY S. LUSK
TYLER, TEXAS Clerk
______________________________________________________
DAVID MARK DAVIS, II
Appellant
VS.
THE STATE OF TEXAS
Appellee
On Appeal from the County Court at Law Number Two of
Angelina County, Texas Cause No. 14-1048
______________________ ____________________________
REPLY BREIF FOR APPELLEE
_________________________ _________________________
James M. Yakovsky
Assistant County Attorney
Angelina County Attorney’s Office
P.O. Box 1845
Lufkin, Texas 75902-1845
Telephone: 936.632.3929
State Bar No. 24030668
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
TABLE OF CONTENTS
Statement of the Case..................................3
State’s Response to the issue presented.................4
Prayer..................................................7
1.
INDEX OF AUTHORITIES
Caseslaw
Garlington v. State, 25 S.W. 2d. 333,334 (Tex. Crim. App.
1930) ...................................................5
Garcia v. State, 827 S.W. 2d. 937, 944 (Tex. Crim. App.
1992) ...................................................6
Statutes
Tex. Transp. Code Sec. 545.352..........................5
43 Tex. Admin. Code Sec. 25.21 (b)(1) ...................5
Tex. Code of Crim. Proc. Art. 14.01 (b) ................6
Tex. Transp. Code Sec. 543.004..........................6
Tex. Transp. Code Sec. 543.005..........................6
Tex. Transp. Code Sec. 543.003..........................6
Tex. Transp. Code Sec. 543.010..........................6
2.
STATEMENT OF THE CASE
As indicated in the Appellant’s brief, this cause
involving a speeding violation that was appealed from the
Lufkin Municipal Court to the Angelina County Court at
Law Number Two. A trial was set for October 10 th, 2014.
Just prior to trial, the Court heard Appellant’s argument
on his Motion to Suppress. In his argument, Appellant
claimed his personal information such as his name,
address and license information was “the fruit” from the
“seizure” of the traffic stop, and should be suppressed.
Upon the Court’s denial of his Motion to Suppress,
Appellant entered a “no contest” plea, and the Court
rendered a judgment and punishment consisting of a fine
in the amount of $75.00 and court costs of $248.10.
Although the State was prepared for trial with the
presence of the officer and the video of the traffic
stop, Appellant’s voluntary plea of “no contest” to the
Court eliminated the need for a trial, or any
presentation of evidence on behalf of the State.
3.
STATE’S RESPONSE TO THE ISSUE PRESENTED
The Trial Court’s denial of Davis’ Motion to Suppress
was correct, and without error
This case involves a speeding violation, and nothing
more. Defendant claims the traffic stop conducted by
Lufkin Police Officer Christopher Carroll was without
reasonable suspicion supported by articulable facts that
a traffic violation occurred. To the contrary, while on
routine traffic enforcement duty located at the 5000
block of South Chestnut near the city limits of Lufkin,
Angelina County, Texas, Officer Carroll observed
Defendant who was travelling in his vehicle at a speed of
68 miles per hour, in excess of the posted speed which is
55 miles per hour at the particular location where
Officer Carroll was working.
As a result, Officer Carroll made a traffic stop upon
viewing a traffic violation committed by the Defendant
within Officer Carroll’s view. A citation was issued to
the Defendant for speeding, upon which Defendant signed
and made a promise to appear.
4.
Despite Defendant’s claims in his Motion, there was no
arrest, no searches and no seizures.
Response and Authority
Section 545.352 of the Transportation Code states “a
speed in excess of the limits established is prima facie
evidence that the speed is not reasonable and prudent,
and the speed is unlawful.” Texas Transp. Code Sec.
545.352. Here, Officer Carroll clocked Defendant’s
vehicle with a “Stalker” Radar at 68 miles per hour, in
an area where the posted speed limit is 55 miles per
hour. All speed limits are considered “prima facie”
limits. Prima facie limits are those limits which on the
face of it are reasonable and prudent under normal
conditions. 43 Texas Administrative Code (TAC) Section
25.21 (b)(1). While not conclusive, prima facie evidence
is proof of the case upon which a court or jury may find
a verdict, unless it is rebutted by other evidence.
Garlington v. State, 25 S.W. 2d. 333, 334 (Tex. Crim.
App. 1930).
Defendant committed an offense within Officer
Carroll’s view. As long as an actual violation occurs,
5.
law enforcement officials are free to enforce the laws
and detain a person for that violation. Garcia v. State,
827 S.W. 2d. 937, 944 (Tex. Crim. App. 1992). As a
general rule, officers may arrest a person for any
offense committed in their presence or within their view.
Texas Code of Crim. Proc. Article 14.01 (b). However, an
exception lies within Texas Transp. Code Sect. 543.004
and 543.005 where no arrest is made, and a notice or
promise to appear is made by the Defendant on cases
involving a speeding violation. Here, no arrest was
made. Defendant signed the citation, and made a promise
to appear.
The notice to appear included the date and location
of where to appear for court, the Defendant’s name and
address, and the license plate number of the vehicle.
Tex. Transp. Code Sect. 543.003. The citation also
includes the posted speed for the location, and the
Defendant’s alleged speed. Tex. Transp. Code Sect.
543.010.
Based upon the foregoing, the traffic stop made by
Officer Carroll was proper based upon the commission of
6.
an offense by the Defendant within his view, as well as
the statutes and authority cited above. In Texas, speed
in excess of the speed limit is prima facie evidence that
the speed Defendant was travelling was not reasonable and
prudent, and therefore, unlawful.
Therefore, the Trial Court was correct in its denial
of Davis’ Motion to Suppress, and should not be entitled
to the relief requested in the issue presented here.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State
respectfully requests the 12th Court of Appeals affirm the
Trial Court’s Order denying Appellant’s Motion to
Suppress.
Respectfully submitted,
_________________________________
James M. Yakovsky
Assistant County Attorney
Angelina County Attorney’s Office
P.O. Box 1845
Lufkin, Texas 75902-1845
Telephone: 936.632.3929
State Bar No. 24030668
ATTORNEY FOR THE STATE OF TEXAS
7.
CERTIFICATE OF SERVICE
The undersigned attorney certifies that a true and
correct copy of the foregoing Response to Relator’s Brief
was served upon the Appellant Pro Se, David Mark Davis,
II, 11 Glenview Court, Lufkin, Texas 75901 on the 26th of
December, 2014 by electronic delivery.
_______________________
James M. Yakovsky
CERTIFICATE OF COMPLIANCE
I certify this document contains 1,060 words,
counting all parts of the document except those excluded
by Tex.R.App.P.9.4(i)(1). The body text is in 14 point
font.
_______________________
James M. Yakovsky