Jaganathan, Francheska v.

PD-1189-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/16/2015 4:04:43 PM
Accepted 10/16/2015 4:20:57 PM
ABEL ACOSTA
No. PD-1189-14 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
FRANCHESKA V. JAGANATHAN, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Chambers County
________________________________________
FRANCHESKA V. JAGANATHAN’S MOTION FOR REHEARING
________________________________________
Ryan W. Gertz
The Gertz Law Firm
2630 Liberty
Beaumont, TX 77702
Tel: (409) 833-6400
Fax: (409) 833-6401
Texas Bar. No. 24048489
October 16, 2015
Basis for Rehearing
The opinion issued by this Court, reversing the Fourteenth Court of
Appeals decision, turns years of Texas jurisprudence on its head and should
be reconsidered. Since Ford v. State1 was decided in 2005, every court in
the State has parroted its language in cases involving warrantless seizures
based on traffic stops. The Court’s opinion here completely changes the
analysis of these cases without providing a rationale for doing so.
1. Deference to the Trial Court
This Court criticized the Court of Appeals for not giving deference to
the Trial Court. The lack of deference aligns with the bifurcated review this
Court and inferior courts throughout the State employ in these situations.
Courts are to give almost total deference to the trial court's determination of
historical facts and review de novo the trial court's application of law to facts
not turning on credibility and demeanor. 2 Here, the video clearly shows
everything necessary to determine the facts and thus deference to the Trial
Court’s credibility determinations is unnecessary.
1
See Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005).
2
Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009); Ford v. State, 158
S.W.3d 488, 492-93 (Tex. Crim. App. 2005).
2. Objective not Subjective Standard
The Court also appears to abandon the objectivity requirement in
considering the officer’s actions and instead criticizes the Court of Appeals
for failing to consider reasonable suspicion from the Trooper’s vantage
point. While the Court uses the word “objective,” what the Court actually
does is look at it subjectively from the Trooper’s point of view. An
analogous situation would be a citizen being pulled over because an officer
thought he or she failed to use their turn signal, but the video subsequently
shows the citizen properly using their turn signal. Would it be proper to
look at the video from the officer’s point of view and speculate as to how he
could have personally observed a violation- maybe the sun was in his eyes,
or a glare on the windshield? Of course it would not be proper.
3. The Court did not Address the Key Dispute
In Ford v. State, this Court squarely addressed a situation wherein the
offense was not clearly defined, namely: what constitutes “following too
close?” 3 Courts have also addressed this issue as it relates to cases involving
3
Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005).
“failure to maintain a single lane” and the requirement of evidence of
dangerousness.4
Here the issue is similar: what constitutes “passing?” As Jaganathan
has pointed out during this process: passing is not a binary act, but, rather,
involves a series of relatively complicated maneuvers and calculations. One
is not simply passing or not passing. Instead a driver must: pass the slower
vehicle at some speed exceeding the other vehicle’s speed, travel a sufficient
distance beyond that vehicle to safely pull back in front of that vehicle, and
do so while determining whether other vehicles in the lane warrant passing
or are a sufficiently safe distance ahead to make it safe to pull back into the
original lane. The law requires all of these tasks be accomplished while
neither speeding nor following too closely, yet properly using turn signals,
not placing other vehicles in danger, and – pertinent to this case – not
obstructing the passage for emergency vehicles.
4
See, e.g., Mahaffey v. State, 316 S.W.3d 633, 640 n.35 (Tex. Crim. App. 2010); Fowler
v. State, 266 S.W.3d 498 (Tex. App. Ft. Worth – 2008) (reversing denial of a motion to
suppress where officer observed the citizen’s tires cross into an adjacent lane of traffic
with no cars in the area); see also Curtis v. State, 209 S.W.3d 688 (Tex. App. -
Texarkanna 2006 (reversing a trial court because traffic stop was not justified – the
officer observed weaving out of the lane, but no evidence that the weaving was unsafe).
See also Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App. – Austin 1998, pet ref’d)
(holding that a defendant’s slow swerve into another same direction lane did not provide
reasonable suspicion for a stop); State v. Tarvin, 972 S.W.2d 910 (Tex. App. – Waco
1998) (upholding the grant of a motion to suppress when the state failed to demonstrate
dangerousness of failing to swerving).
If one follows the Court’s rationale to its logical conclusion, officers
now have carte blanche to stop anyone on the highway who is traveling in
the left lane for any period of time without someone immediately in the
adjacent lane if a controlling sign is present. Reasonable suspicion requires
that the State provide specific and articulable facts that would lead a rational
person to believe an offense had been committed before initiating a Fourth
Amendment seizure.5 Setting aside the Trooper’s subjective beliefs about
what passing means and whether or not Jaganathan was actually doing so, an
objective observer of the video – properly giving no weight to the trial
court’s determination – cannot conclude that the evidence here meets the
“specific and articulable facts” standard. No one actually articulated what
passing was in this case.
PRAYER FOR RELIEF
WHEREFORE, the Francheska Jaganathan prays that the Court of
Criminal Appeals Grant her Motion for Rehearing and AFFIRM the
judgment of the Court of Appeals.
Respectfully submitted,
/s/ Ryan W. Gertz
_________________________
Ryan W. Gertz
The Gertz Law Firm
5
See Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997).
2630 Liberty
Beaumont, TX 77702
Tel: (409) 833-6400
Fax: (409) 833-6401
Texas Bar. No. 24048489
Attorney for Francheska Jaganathan
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 16th day of October,
2015, a true and correct copy of the foregoing instrument was served on the
following counsel of record in accordance with the rules:
Eric Carcerano
Assistant District Attorney
Chambers County
P.O. Box 1409
Anahuac, TX 77514
ecarcerano@co.chambers.tx.us
John R. Messinger
Assistant State Prosecuting Attorney
P.O. Box 13046
Austin, TX 78711
information@spa.texas.gov
/s/ Ryan W. Gertz
_________________________
Ryan W. Gertz
Attorney for Appellant