1 

Case No. 12-14-00296-CR

IN THE TWELFTH COURT OF APPEALS 

TYLER, TEXAS 

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

ACCEPTED

12-14-00296-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

12/26/2014 12:18:52 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 12/26/2014 12:18:52 PM CATHY S. LUSK Clerk
2

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
3

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
4

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.
5

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.
6

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