David Mark Davis II v. State ( 2014 )

ACCEPTED
12-14-00296-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/26/2014 12:18:52 PM
CATHY LUSK
CLERK
Case No. 12-14-00296-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
12/26/2014 12:18:52 PM
TYLER, TEXAS
CATHY S. LUSK
Clerk
DAVID MARK DAVIS II,
Appellant,
VS.
THE STATE OF TEXAS,
Appellee
On Appeal from the County Court at Law No. 2 of Angelina County, Texas
Trial Cause No. 14-1048
APPELLANT’S REPLY TO STATE’S BRIEF
_________________________
David Mark Davis II
Appellant, Pro Se
11 Glenview Court
Lufkin, Texas 75901
(936) 238-8507
dmarkdavis2@gmail.com
APPELLANT WAIVES ORAL ARGUMENT
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PARTIES
ATTORNEY’S FOR THE STATE AT PRE-TRIAL HEARING, PLEA HEARING AND
ON APPEAL:
ED C. JONES, Angelina County Attorney
TX State Bar No. 10873300
Angelina County Attorney’s Office
P. O. Box 1845
Lufkin, Texas 75902-1845
936-639-3929
JAMES YAKOVSKY, Assistant Angelina County Attorney
Assigned as lead attorney on the case at Trial Court level
TX State Bar No. 24030668
Angelina County Attorney’s Office
P. O. Box 1845
Lufkin, Texas 75902-1845
936-639-3929
DEFENDANT - PRO SE
DAVID MARK DAVIS II
11 Glenview Court
Lufkin, Texas 75901
(936) 238-8507
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing Appellant
Brief for David Mark Davis II was delivered via email to Mr. Jones and delivered via USPS to
Mr. Yakovsky.
_______________________
David Mark Davis II
Defendant, Pro Se
2
Table of Contents
Table of Authorities…………………………………………………………………………….3
Appellant’s Response to State’s Brief …………………………………………………………4
State’s Claim that “there was no arrest, no searches and no seizures”…………………………4
Officers Authority to Arrest or Detain………………………………………………………….5
Conclusion………………………………………………………………………………………5
Prayer……………………………………………………………………………………………6
Certificate of Word Count………………………………………………………………………6
Table of Authorities
Cases Page
United States v. Mendenhall, 446 U.S. 544, 554 (1980)…………………………………………4
Delaware v. Prouse, 440 U.S. 648, 650(1979) ……………………………………….…………..4
Whren v. United States, 517 U.S. 806 (1996)………………………………………….………4, 5
Brendlin v. California, 551 U.S. 249 (2007) …………………………………………/…………5
US Constitution
U.S. Const. amend. IV ……………………………………………….…………………..…4, 5, 6
3
Appellant’s Response to State’s Brief
On December 26, 2014, the State filed “REPLY BREIF FOR APPELLEE” in this cause.
Davis respectfully submits the following rebuttal to said response:
State’s Claim that “there was no arrest, no searches and no seizures”
This claim simply lacks legal merit. The precedent is well established that when the
police cause the reasonable person to feel that they are not free to leave a police encounter, they
have seized that person within the meaning of the Fourth Amendment. See United States v.
Mendenhall, 446 U.S. 544, 554 (1980). The trial court held that Davis was temporarily not free
to leave the police encounter (See RR Vol. II, P. 9) thus Davis satisfied his argument that he was
seized under the standard set forth by the Supreme Court in Mendenhall.
Furthermore, contrary to the State’s argument, a routine traffic stop has been deemed a
seizure under the Fourth Amendment for nearly half a century. In 1979, the Supreme Court held
that “[s]topping an automobile and detaining its occupants constitute a "seizure" within the
meaning of U.S. Const. amends. IV and XIV, even though the purpose of the stop is limited and
the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 650(1979). In 1996, the
Supreme Court again held “Temporary detention of individuals during the stop of an automobile
by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of
"persons" within the meaning within the meaning of the Fourth Amendment.” Whren v. United
States, 517 U.S. 806 (1996). Even as recent as 2007, the Supreme Court has opined “[w]hen a
police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth
Amendment.” Brendlin v. California, 551 U.S. 249 (2007). Bottom line, the State’s argument no
seizure has occurred is completely contrary to clearly established law.
4
Officers Authority to Arrest or Detain
The State claims that various laws allow a law enforcement officer to detain an individual
who the officer witnesses speeding. Davis does not dispute this contention. However, when the
detention is challenged as is the case here, the State has the burden to show the stop was
supported by probable cause. See Whren v. United States, 517 U.S. 806 (1996). In the instant
case, the State called no witnesses and presented no evidence to support the stop was reasonable.
The attorney for the State who did not witness the alleged offense cannot justify a stop on behalf
of the officer by claiming that the Officer’s stop was reasonable. The State had an affirmative
duty to present testimonial or other evidence to support the stop, and it failed to do so.
Conclusion
Davis established that he was seized within the meaning of the Fourth Amendment when
Officer Carroll conducted the traffic stop related to these proceedings. The trial court took notice
that said traffic stop was effected without a warrant and opined that Davis was not free to leave.
At the point, Davis proved a prima facie case that said traffic stop violated the Fourth Amendment.
The State presented zero evidence to support the trafffic stop, however, the trial court still denied
Davis’ Motion to Suppress. Contrary to the State’s argument, the trial court abused its decretion
when it denied the motion to suppress. The State would not have been able to make a prima facie
case had this evidence been excluded. This conviction cannot be allowed to stand and this Court
must reverse and remand.
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Prayer
Davis has proven a prima facie case that the State and Lufkin Police Department have
violated his Fourth Amendment right to be free from unreasonable seizures. As such, Davis
prays this Court reverse the conviction and remand the case back to the trial court.
Respectfully Submitted,
______________________________
David Mark Davis II
Appellant, Pro Se
Certificate of Word Count
Relying on the word count function in the word processing software used to produce this
document, I certify that the number of words in this reply (excluding any caption, identity of
parties and counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of compliance, and
appendix) is 644.
______________________________
David Mark Davis II
Appellant, Pro Se
6