DocketNumber： PD-1335-16
Filed Date： 12/23/2016
Status： Precedential
Modified Date： 12/28/2016
CASE NO. PD-1335-16 __________________________________________________________________ IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS __________________________________________________________________ STATE OF TEXAS V. ALBERT TYRONE BERNARD __________________________________________________________________ On Petition for Discretionary Review from The Fourteenth Court of Appeals In No. 14-15-00822-CR Affirming the Trial Court’s Judgment in On Appeal from Cause No. MD-0348570 County Court at Law Number Three (3) Galveston County, Texas Hon. Jack Ewing, Presiding __________________________________________________________________ RESPONSE TO THE STATE’S PETITION FOR DISCRETIONARY REVIEW __________________________________________________________________ DAN KRIEGER 215 East Galveston Street League City, Texas 77573 (281) 486-8125 x2 Phone (281) 332-7877 Facsimile dan@kriegerlawfirm.com December 23, 2016 ATTORNEY FOR APPELLEE, ALBERT TYRONE BERNARD ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL Appellant: State of Texas Appellee: Albert Tyrone Bernard Trial Counsel for Lindsay Richards Appellant: State Bar No. 24086198 600 59th Street, Suite 1001 Galveston, Texas 77551 Telephone: (409) 770-5136 Appellate Counsel Jessica Ebbs for Appellant at Court State Bar No. 24095335 of Appeals: 600 59th Street, Suite 1001 Galveston, Texas 77551 Telephone: (409) 770-5136 Appellate Counsel Stacey M. Soule for Appellant at Court P.O. Box 13046 Of Criminal Appeals: Austin, Texas 78711 Trial and Appellate Counsel Dan Krieger for Appellee : State Bar No. 24064243 215 E. Galveston Street League City, Texas 77573 (281) 486-8125 (Telephone) (281) 332-7877 (Facsimile) dan@kriegerlawfirm.com Trial Judge: Honorable Jack Ewing ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................................................ ii TABLE OF CONTENTS ............................................................................................. iii INDEX OF AUTHORITIES ........................................................................................ v RESPONSE TO GROUNDS PRESENTED FOR REVIEW ...................................... 1 ARGUMENT ............................................................................................................... 2 PRAYER ...................................................................................................................... 4 CERTIFICATE OF SERVICE .................................................................................... 5 CERTIFICATE OF COMPLIANCE ........................................................................... 5 iii INDEX OF AUTHORITIES STATE COURT CASES Guzman v. State,955 S.W.2d 85
, 89 (Tex. Crim. App. 1997). ................................................... 2 State v. Bernard, __ S.W.3d__, No. 14-15-00882-CR, 2016 Tex. App. LEXIS 12018, *9 (Tex. App.—Houston [14th Dist.] 2016). ...................................................... 3 State v. Iduarte,268 S.W.3d 544
, 548–49 (Tex. Crim. App. 2008)...................................... 3 Valtierra v. State,310 S.W.3d 442
, 447 (Tex. Crim. App. 2010). ............................................. 3 Vasquez v. State,389 S.W.3d 361
, 370 (Tex. Crim. App. 2012). ................................................ 3 STATUTES Tex. Transp. Code § 545.060(a) ............................................................................... 1 iv CASE NO. PD-1335-16 __________________________________________________________________ IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS __________________________________________________________________ STATE OF TEXAS , Appellant V. ALBERT TYRONE BERNARD , Appellee __________________________________________________________________ RESPONSE TO STATE’S PETITION FOR DISCRETIONARY REVIEW __________________________________________________________________ TO THE HONORABLE COURT OF CRIMINAL APPEALS: Appellant respectfully responds to the State’s Petition for Discretionary Review and urges the Court to decline discretionary review of this case. STATEMENT REGARDING ORAL ARGUMENT Appellee requests oral argument of this matter should the Court grant discretionary review of this case in order to: 1) provide the Court a more complete understanding of the facts of the appeal; 2) to allow the Court to explore and better analyze the complicated legal issues presented in this appeal; and 3) to aid the Court in deciding the matter. RESPONSE TO GROUNDS FOR REVIEW 1. The Fourteenth Court of Appeals properly applied the binding authority to the decision of the matters in the case. 1 2. The Fourteenth Court of Appeals properly upheld the suppression of the stop based on the trial court’s finding of facts and their independent review of the case and dashcam video. ARGUMENT The Fourteenth Court of Appeals properly affirmed the lower court in this matter. The trial court properly suppressed the traffic stop because the deputy stopped Appellee without reasonable suspicion. In making it’s finding of facts, the trial court noted several specific reasons that turned specifically on the credibility and demeanor of the witnesses. It further found that Appellee was not driving in an unsafe manner to any other vehicles on the road and no reasonable suspicion of violating Texas Transportation Code 545.060(a) existed at the time of the stop. These findings were supported by both officer testimony and the both the trial and appellate courts’ review of the deputy’s dashcam video. The findings of fact also support the suppression of the stop as there were no specific articulable facts that would have supported a reasonable suspicion to stop Appellee for suspicion of driving while intoxicated. 1. The Fourteenth Court of Appeals properly applied the binding authority to the decision of the matters in the case. It is well established that the appellate courts give almost total deference to the trial court’s determination of the historical facts that are supported by the record. Guzman v. State,955 S.W.2d 85
, 89 (Tex. Crim. App. 1997). Here, the trial judge 2 made express findings of fact, which were supported by the evidence in the case. Valtierra v. State,310 S.W.3d 442
, 447 (Tex. Crim. App. 2010). It is also well-established that the appellate courts will uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Iduarte,268 S.W.3d 544
, 548–49 (Tex. Crim. App. 2008). In the instant case, the panel reviewed the testimony of the deputies in the case as well as the dashcam video of the stop and found nothing to contradict the trial court’s findings. State v. Bernard, __ S.W.3d__, No. 14-15-00882-CR, 2016 Tex. App. LEXIS 12018, *9 (Tex. App.—Houston [14th Dist.] 2016). Plurality opinions do not constitute binding authority. Vasquez v. State,389 S.W.3d 361
, 370 (Tex. Crim. App. 2012). Here, the panel correctly applied the authoritative jurisprudence with the specific findings of fact and conclusions of law and properly affirmed the trial court’s suppression of the stop. 2. The Fourteenth Court of Appeals properly upheld the suppression of the stop based on the trial court’s finding of facts and their independent review of the case and dashcam video. Appellate courts will uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Iduarte,268 S.W.3d 544
, 548–49 (Tex. Crim. App. 2008). In the instant case, the panel reviewed the testimony in the case as well as the dashcam video of the stop and found nothing to contradict the trial court’s findings. Bernard, 2016 Tex. App.3 LEXIS 12018
, *9. Based on the trial court’s findings of fact, in conjunction with the panel’s review of the testimony and the dashcam video entered as evidence in the case, there were no specific facts that would establish reasonable suspicion to stop Appellee for driving while intoxicated. To the contrary, Officer Watson stated she wanted to conduct a “welfare check” on the driver, however, no facts were presented to establish any prongs of a community caretaking function stop during the case.Id. at *7.
No motion for rehearing was requested on the matter. Pet. PDR at 2. PRAYER For the reasons stated in this response to the State’s Petition for Review, Respondent requests the Court deny this petition for review. Respectfully submitted, /s/ Dan Krieger Dan Krieger State Bar No: 24064243 215 E. Galveston League City, Texas 77573 (281) 332-7630 (281) 332-7877 facsimile dan@krieger-ongert.com 4 CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Microsoft Word and contains 1,329 words, as determined by the computer software's word- count function, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1). /s/ Dan Krieger Dan Krieger CERTIFICATE OF SERVICE A true and correct copy of the above and foregoing document has been forwarded to the following persons, in accordance with the TEXAS RULES OF APPELLATE PROCEDURE, on the 22nd day of December, 2016: Stacey M. Soule Assistant State Prosecuting Attorney P.O. Box 13046 Austin, Texas 78711 /s/ Dan Krieger Dan Krieger 5 Envelope Details Print this page Case # PD-1335-16 Case Information Location Court Of Criminal Appeals Date Filed 12/23/2016 12:13:51 AM Case Number PD-1335-16 Case Description Assigned to Judge Attorney Daniel Krieger Firm Name Krieger & Ongert Filed By Daniel Krieger Filer Type Not Applicable Fees Convenience Fee $0.00 Total Court Case Fees $0.00 Total Court Party Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $0.00 Total Provider Tax Fees $0.00 Grand Total $0.00 Payment Account Name visa Transaction Amount $0.00 Transaction Response Transaction ID 22900499 Order # Reply to Petition for Discretionary Review Filing Type EFileAndServe Filing Code Reply to Petition for Discretionary Review Filing Description Reply to State's Petition for Discretionary Review Reference Number Comments Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason 12/23/2016 Appellee was granted an extension to file his response to the state prosecuting https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=87ca8d0c-b4f6-4b12-bb2a-e4aeb3138527[12/23/2016 2:15:49 PM] Envelope Details Other 02:14:09 attorney's petition for discretionary review; the due date to file response was PM extended to December 22, 2016. This filing is untimely. Documents Lead Document Reply to States Petition for Discretionary Review.pdf [Original] eService Details Date/Time Name/Email Firm Service Type Status Served Opened Jessica Ebbs EServe Sent Yes Not Opened jessica.ebbs@co.galveston.tx.us Dan Krieger EServe Sent Yes Not Opened dan@kriegerlawfirm.com Texas State Stacey Soule 12/23/2016 Prosecuting EServe Sent Yes stacey.soule@spa.texas.gov 09:09:33 AM Attorney https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=87ca8d0c-b4f6-4b12-bb2a-e4aeb3138527[12/23/2016 2:15:49 PM]