No.06 -14-00221-CR 

 COURT OF APPEALS 

 SIXTH DISTRICT OF TEXAS

 TEXARKANA 

 Brian Woodard

 Appellant 

 vs

 The State of Texas 

 Appellee 

________________________________________________________ 

 APPEAL FROM THE 254TH DISTRICT COURT OF HUNT 

 COUNTY, TEXAS 

 RICHARD BEACOM, PRESIDING 

__________________________________________________________ 

 REPLY BRIEF OF APPELLANT 

__________________________________________________________ 

Charles E. Perry 

State Bar No. 15799700 

1101 Main Street 

P.O. Box 720 

Commerce, Texas 75429 

Tel. 903-886-0774 

Fax. 903-886-2043 

Cell. 940-613-8439 

Attorney for Mr. Woodard

 

ACCEPTED

06-14-00221-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/22/2015 2:39:48 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/22/2015 2:39:48 PM DEBBIE AUTREY Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

BRAIN EUGENE WOODARD

BUSTER COLE UNIT, 3801 SILO ROAD ROAD

BONHAM, TEXAS 75418

ATTORNEY FOR APPELLANT

On Appeal:

Charles E. Perry

State Bar of Texas No. 15799700

1101 Main Street

Commerce, Texas 75429

ATTORNEY FOR THE STATE OF TEXAS

Kelli M. Aiken

Assistant District Attorney Hunt County

2500 Lee Street,

Greenville, Texas 75440
iii

Table of Contents

Identity of parties and counsel........................................................................ii

Table of Contents...........................................................................iii

Index of Authorities.........................................................................iv

I.Statement of the Case......................................................................1

II.Statement Regarding Oral Argument...................................................1

III.Issues Presented........................................................................ 1-2

IV.Statement of Facts........................................................................2

V.Summary of the Argument............................................................3&4

VI.Argument and Authorities...............................................................4

1. The trial court committed reversible error in admitting and considering the 

testimony of trooper Zane Rhone with respect to the stop and search for drugs after 

he finished or should have finished his duties with respect to the traffic citation for 

which the Appellant was stopped.

2. The trial court committed reversible error in admitting the testimony of trooper

Zane Rhone with respect to the stop and search for drugs since there was no 

probable cause to stop the Appellant and the automobile the Appellant was driving.

VII. Conclusion and Prayer.................................................................13

Signature..................................................................................... 13

Certificate of 

Service.........................................................................................13
iv

Index to Authorities 

Cases:

Caballas v. United States, 405 U.S. 405(2005)......................................4,5,8

Delaware v.Prause, 440 U.S. 675 at 686...........................................5,6,7,8

Florida v. Royer, 460 U.S. 491, 500 (1983).............................................4

Ford v. State, 158 S.W.3d 488(Tex.Crim.App.2005)...................................9

Garcia v. State, 43 S.W. 3d 529, 530................................................10,12

Maryland v. Pringle, 540 U.S. 371(2003)...........................................10.12

Rodriguez v. United States, 575 U.S. 1609 (2015).............................3,4,6,7,8

Terry v. Ohio, 392 U.S. 1(1968............................................................4

United States v. Sharp,470 U.S. 675 at 686.............................................4,5

United States v. Smith, 799 F.3d 704, 708(11th Cir.1986)...........................6,10

Statutes:

Ohio Revised Code section 4501;4503.19-22;4513.02...........................4,9,11

Texas Transportation Code section 545. 062............................................. 9

504.945...................................................................................................2

United States Constitution

Article IV section 1-Full Faith and Credit Clause....................................4,10

Fourth Amendment-Unreasonable Search and Seizure..................................6
1

 

I. STATEMENT OF THE CASE This case involves Brian Eugene Woodard who 

was charged and indicted with the felony offense of possession of a controlled 

substance, namely cocaine, in an amount of 400 grams or more .(CR 8). He was 

tried before the 254th District Court of Hunt County, Texas without a jury 

beginning on October 20, 2014, 2014(See RR, V1-8). He was found guilty and 

sentenced to 40 years in the Institutional Division of the Texas Department of 

Criminal Justice on December 4, 2014. (CR 93-96). At trial, the defense raised and 

completed the requirements for a necessary defense. The trial judge denied this 

request. This appeal follows.

II. STATEMENT REGARDING ORAL ARGUMENT 

The Appellant does not request Oral Argument.

III. ISSUES PRESENTED

The issues presented for review are:

1.The trial court committed reversible error in admitting and considering the 

testimony of officer Zane Rhone with respect to the stop and search for drugs after 

he finished or should have finished his duties with respect to the traffic citation for 

which the Appellant was stopped. 

2.The trial court committed reversible error in admitting the testimony of officer 
2

Zane Rhone with respect to the stop and search for drugs since there was no 

probable cause to stop the Appellant and the automobile Appellant was driving. 

 

IV. STATEMENT OF THE FACTS

 

Trooper Zane Rhone was working on I-30 in Greenville, Hunt County, Texas when 

he first observed the Appellants car. (RR8/, p.11/19-25; p.12/1-25)The Appellant 

was stopped by DPS trooper Zane Rhone for following to close and not being able 

to read the name of the State on the license plate (RR8/ p. 12/21-25;p.13/1-4;13/5-

12. Trooper Rhone testified the law prohibits more than half of the name of the 

state from being obscured.(RR8/ p. 13/17-22). Trooper Rhone testified that the 

Appellant was following to close to come to a stop to keep from colliding.(RR8/

p.13/23-25;p.14/1-2;14/3-25) His testimony placed the Appellant at 40 feet from 

the car in front when it should have been 157 feet.(RR8/ p. 16/1-5). Officer Rhone 

testified later that there was nothing in his official report about stopping the 

Appellant for following to close to the car in front.(RR8/p.65/22-25;p. 66/1-5; 

p.66/6-14). Trooper Rhone testified that while he was on the side of the road he did 

not observe the Appellant following to close or his license plate being obstructed. 

(RR8/ p.62/7-22).Texas Transportation Code sec.504.945. He testified that he 

started up after the Appellant because he was curious as to two clean cars that did 

not have Texas plates.(RR8/, 63/2-9). He testified that when he pulled on to the 
3

road because the car was clean this was not probable cause to stop the 

Appellant(RR8/.p.79/17-25; 80/1-6).When trooper Rhone stopped the Appellant he 

could smell air freshner and the car was clean (RR8/ p.17/16-22;18 p.18/2-5). His 

testimony was that after the stop he could see that the plates were from Ohio 

(RR.8/ P.16 /15-21. Trooper Rhone testified that the Appellant said that the license 

plate bracket came from the dealer the way it was.(RR8/ p. 51/5-25; 52/1-5). 

Appellant grandfather Mack Woodard testified that he bought the car in 2013 and 

that the license plate frame came from the dealership where it was installed.(RR8/. 

p. 101/ 2-25).

While talking to the Appellant trooper Rhone testified that he was getting his 

warning started.(RR8/. p. 25/ 11-15). Officer Rhone had testified while talking to 

the Appellant he told the Appellant that he would get a warning but he said at that 

time he had not written the warning.(RR8/ p.20/15-180).

V.SUMMARY OF THE ARGUMENT 

A. The Appellant was detained and question beyond the reasonable time it should 

have taken to issue a warning ticket for what the Texas Department of Public 

Safety said Appellant was in violation of traveling to close to the car in front and 

an obstructed license plate under Texas law and thus any and all contraband as a 

result of the stop and search should have been suppressed. Rodriquez v. United

States, 575 U.S. 1609(2015) 
4

B. The Appellant had the right to proceed down Interstate 30 in Hunt County, 

Texas free from a stop by the Texas Department of Public Safety since the State of 

Texas should recognize Ohio Revised Statutes 4501 et. seq. which allows and does 

not prohibit the type of bracket placed on the vehicle Appellant was driving by the 

dealer and used to secure the Appellants Ohio license plate under Article 4 section 

1 of the “full faith and credit clause” of the United States Constitution. The stop of 

the Appellant was unreasonable and pretextual. 

 

VI. ARGUMENT AND AUTHORITIES 

A. The court erred in admitting and considering the evidence of the search as well 

as the contraband. The stop in the instant case was much like the stop in Terry v. 

Ohio, 392 U.S. 1 (1868). In the case at bar we are dealing with the tolerable 

duration of a police inquiry in a traffic stop context as determined by the seizure’s 

mission—to address the traffic violation that warranted the stop. Caballes v. 

United States, 405 U.S. 405 at 407. In United States v. Sharp,470 U.S 

675,685(1985); Florida v. Royer, 460 U.S. 491,500(1983). This is where the scope 

of the detention must be carefully tailored to the underlying justification. This is 

only because the purpose of the stop may last longer than necessary to effectuate 

the purpose. This was not done in the case at bar. The stop and lengthy detention 
5

was what Caballes tries to prevent. Trooper Zane Rhone of the DPS when talking 

to the Appellant told the Appellant he would be getting a warning but had not yet 

written out the warning.(RR.8/ p. 20/15-18). Later while talking to the Appellant 

trooper Rhone got the warning started.(RR. p. 11-15). Trooper Rhone had ample 

time to complete the warning but did not do so. The authority for trooper Rhone

seizure of the contraband ended before he searched and seized the contraband 

because of his delay in completing the task incident to the issuance of the traffic 

warning ticket. The case at bar is similar to where the court said in United States v. 

Sharp,470 U.S. 675 at 686 where the court said that the authority for the seizure 

ends when the tasks tied to the traffic infraction are—or reasonably should have 

been completed. The fact that officer Raine noticed that the car was clean of 

smelled of air freshner (RR8/ p.17/15-22;p.18/ 2-5) does not justified a prolonged 

stop time wise. Trooper Rhone admitted so as he pulled onto the road when he saw 

the Appellant’s vehicle.(RR8/ p. 79/17-25); 80/1-6). The court laid out in Caballes, 

543 U.S. at 408 that beyond determining whether to issue a traffic ticket, an 

officer’s mission includes “ordinary inquires incident to the traffic stop. These 

were set out in Delaware v. Prause, 440 U.S. 648, 659-660(1979) and included 

inquires involving checking driver’s license, determining whether there are 

outstanding warrants against the driver, and inspecting the automobile’s 

registration and proof of insurance. In the case at bar all this was done and there 
6

was no reason or probable cause for delay to justify a search and seizure of 

contraband. For these reasons the contraband evidence should have been 

suppressed and not admitted into evidence and considered by the court under the 

4

th Amendment to the United States Constitution as well as the case of Rodriguez

v. United States, 575 U. S. 1609(2015). 

 Both State and Appellant have cited Rodriguez v, Untied States, 135 S. Ct. 

1609 and this case sheds light on the instant case. As set out in the state’s brief 

citing Rodriguez at 1615 the court sets out four prongs that measure the legality of 

a traffic stop with respect to the time length and the necessity of issuing a ticket 

and addressing safety concerns. 

 See Delaware v. Prouse, 440 U.S. 648, 658-660(1979).1. Trooper Rhone 

could have issued a warning or violation ticket had he chose to do so 2.He checked 

the drivers license and identification 3. He easily had time to verify the registration 

and insurance and 4. He had time to determine if the Appellant or other occupant 

had outstanding warrants which they did not. 

 Just because the occupant had a record (Appellant misdemeanors only) 

with no outstanding warrants did not give Trooper Rhone the right to go further. 

This would be true even after Trooper Rhone went further and found a .22 caliber 

pistol in the glove box. The pistol was not open and obvious and the Appellant was 

not prohibited from carrying a pistol because he was not engaged in any illegal 
7

activity that was known to Trooper Rhone and was travelling. Trooper Rhone said 

that he could not place gun with Appellant as the gun was in the glove box and 

Appellant was away from the vehicle when the gun was found.(RR8/ p. 69 lines 

23-25 and p. 70 lines 1-24). He also said that a person who is traveling had a right 

to carry a firearm as long as he is not a convicted felon (RR 8/ p. 71 Lines 14-25) 

 Appellant urges upon the court that the case at bar is a timing case much 

like Rodriguez. While speaking with Appellant early on, trooper Rhone starting 

writing a warning ticket while waiting on a return from dispatch.. He recieved 

partial information back from dispatch during this conversation with 

Appellant.(RR8/ p. 25 lines 10-17)

The return from dispatch did not contain information under the doctrine laid 

down in Delaware v. Prouse, 440 U.S. 648, 650-660(1979) that would warrant 

trooper Rhone from going further.(vehicle occupant Mr. Person was a convicted 

felon but there was no warrants on him).

So as to measure the time line of the stop we can look at a line of 

questioning by the state during the redirect examination of trooper Rhone. The 

state ask trooper Rhone a line of questions with respect to Appellants alleged 

obstructed license plate and how many times he mentioned the obstructed plate in 

The case at bar is a case that squares with Rodriguez and is just like Rodriguez, a 

time and delay case even though Rodriguez was a delay for a drug dog. The instant 
8

case falls under Rodriguez and the time restraints Rodriguez places on such cases 

after the four prongs are satisfied and not delayed.

 In order to evaluate the time the Appellant is urging upon the court we can 

look at the times testified to by trooper Rhone with respect to the video(Exhibit 

3).(RR/8 p. 77 lines 2-17). Those times were 1:15, 1:35, 2:04, 2:15, 2:34 and 6:00 

(RR/8 p. 77 lines 21-25 and p. 78 lines 1-3). The stop and detention is what the 

holding in Caballas tries to prevent when the court held a traffic stop “can become 

unlawful if it is prolonged beyond the time reasonably required to complete the 

mission of issuing a warning ticket. 

In summary there is no evidence with respect to the four prongs set out 

above in Callallas and cited recently in Rodriguez , found in the facts of the instant 

case to justify the time delay found here beyond the time to write the traffic ticket. 

B. The Appellant was stopped by DPS trooper Zane Rhone for following to close 

and not being able to read the name of the state on the license plate(RR8/ p.12/21-

25;p. 13/1-4;13/ 5-12. Officer Rhone testified that the Appellant was following to 

close to keep to come to come to a stop from colliding.(RR8/ p. 13/23-25; p.14/1-

2; 14/3-25.His testimony placed the Appellant at 40 feet from the car in front when 

it should have been 157 feet(RR p.16/1-5.However trooper Rhone further testified 

that there was nothing in his official report of the incident at bar about the 

Appellant following to close to the car in front(RR8/ p.65/ 22-25; p.66/1-5;66/ 6-
9

14). He also testified that while he was on the side of the road he did not observe 

the Appellant following to close or his license plate being obstructed.(RR8/ p. 

62/7-22). The state therefore did not sustain their burden with respect to following 

to close as probable cause to stop the Appellant under Texas Transportation Code

section 545.062. In Ford v State, 156, S.W.3d 488 (Tex. Crim. App. 488, 493-494) 

the court held that there had to be more than such statements of conclusion in order 

to justify a stop for the reason of following to close.

Trooper Rhone testified that he started up to follow the Appellant because he 

was curious as to two clean cars that did not have Texas plates.(RR p. 63/2-9). The 

officer testified further that he pulled upon the road because the car was clean but 

this was not probable cause to stop the Appellant (RR8/ p. 79/ 17-25; 80/1-6). The 

officer went on to testify that after pulling the Appellant over he could see that the 

license plate was OHIO. According to trooper Rhone the Appellant told him that 

the license plate holder plate came the way it was from the dealer.(RR8/p.51/5-25; 

52/1-5). Appellants grandfather Mack Woodard confirmed this by testifying that the 

license plate frame came from the dealer where it was installed.(RR8/p.101/ 2-25).

Under Ohio Revised Statutes sections 4501; 4503.19-22;4513.02 there are no 

obstructive plate restrictions on Ohio license plates dealing with holder or frame 

and the Ohio law was complied with at the dealership(RR8/ p.51/5-25;52/1-5). 

When considering the evidence from Trooper Rhone as well as the Appellants 
10

grandfather Mack Woodard the Appellants argues that the state of Texas should be 

obligated to follow Ohio law under the “full faith and credit clause” of the United 

States Constitution. In determining when an investigative stop is unreasonably pretextual, the proper inquiry is not whether the officer could validly have made the 

stop but whether the officer under the same circumstances a reasonable officer 

would have made the stop in the absence of an invalid purpose. United States v.

Smith, 799 F2d 704, 708( 11th Cir. 1986).When the testimony and reasoning of 

trooper Rhone is considered in its entirety the stop is and was pretextual and thus 

unreasonable. 

 The State cites the doctrine laid down in Maryland v. Pringle, 540 U.S. 

371(2003) that espoused the objective view of the “totality of the circumstances” 

when viewing the circumstances of a law enforcement officer when making an 

arrest.. This is a good step in evaluating the circumstances of the instant case. Next 

the state lays out the doctrine of reasonable suspicion “that criminal activity will 

occur shortly. Garcia v. State, 43 S.W. 3d 529, 530.

These two cases place a burden on the state that does not seem to be met with 

respect to the facts of the case at bar.

We look at the two reasons stated by Trooper Rhone for the justification for 

the stop of the Appellants vehicle. Trooper Rhone testified that Appellant was 

following to close.(RR/8 p. 12, lines 5-17 and 55-66). Interstate 30 through Hunt 
11

County is very congested and vehicles stack up close including trucks and this 

situation could be aggravated by the truck traffic passing each other and cars lined 

up trying to get through. Trooper Rhone could stop nine out of 10 vehicles for 

something because of the congested mess at times. Ford v. State, supra. told us that 

a statement of conclusion such as following too closely does not justify a stop 

without more. 

 The next prong for the justification of the stop by Trooper Rhone was the 

partial cover of the license plate. Trooper Rhone did not size the Appellants license 

plate after the stop (RR8/ p.66 lines 21-22). 

 

 Appellant begs the court’s indulgence but will again reiterate the Ohio Revised

Statutes 4501; 4503; 19-22; 4513:02 that covers the situation with respect to where 

the Appellants vehicle was bought, registered and titled. This state does not 

preclude a partial covering of the plate by a license plate cover. Every state gives 

full faith and credit to sister states vehicle license laws because there is such a 

variance from state to state. As set of above the buyer of the appellants vehicle his 

grandfather testified that the cover and plate came that way from the dealer.(RR8/p. 

51 lines 5-25 and p. 52 lines 1-5).

Trooper Rhone admitted that even thought Texas requires a front license plate 

may sates do not and he does not pull such vehicles over when they do not display a 
12

front plate, thus giving full faith and credit to these sister state’s license plate 

laws.(RR8/ p. 74 lines 11-15; p. 75 lines 1-25 and p. 76 lines 1-13). 

As experienced and good a law enforcement officer is as Trooper Rhone is, 

these facts would not seem to justify a stop under the facts he laid out on Interstate 

30 in Hunt County under both Pringle and Garcia, supra. 

 The search for contraband after the stop began with the observations laid out 

by the state in their brief. Trooper Rhone and his experience with the cleanliness 

and smell of freshness vehicles as applied to the Appellants vehicle. (RR8/ p. 12, 

lines 5-17 and p 18, lines 2-16) 

 Suppose there were two elderly gentlemen with gray hair travelling on 

Interstate 30 in Hunt County, Texas with out of state plates and the vehicle was 

extremely clean and smelled of air freshness would Trooper Rhone have drawn the 

same suspicions as he set out in his testimony (RR8/ p. 10, lines 12-19). Saying 

further Appellant would show that trooper Rhone testified that the subject vehicle 

was brand new (RR8/ p.16 lines 6-10).Brand new vehicles are clean and have 

freshners.

 The Appellant notes that there was no narcotics found on the person of 

Appellant or other occupant of Appellants vehicle on in the passenger compartment 

but the contraband that was found under the air intake filter cover that I under the 

hood in the engine compartment.(RR8/ p. 33 line 25 and p. 34 line 1.) 
13

VII. 

Conclusion and Prayer

For the reasons stated in the Appellants Brief the Appellant requests this Court to 

REVERSE the conviction and sentence of the defendant Brian Woodard and order 

an acquittal or in the alternative remand the case to the trial court for a new trial.

 Respectfully submitted,

 By:/s/Charles E. Perry

 1101 Main Street

 Commerce, Texas 75428 

 State Bar No. 15799700

 Tel:903-886-0774

 Fax:903-886-2043

 

 CERTIFICATE OF COMPLIANCE WITH T.R.A.P.9.4(1)(3)

 Relying on Microsoft Word count feature used to create the Reply Brief of the 

Appellant, I certify that the number of words contained in this brief is 3505 and the 

typeface used is 14 font.

 

 Certificate of Service

I certify on the 22

nd

day of July, 2015, a true and correct copy of the foregoing was 

delivered by email and to counsel for the state of Texas, Hunt County District 

Attorney’s Office at the Hunt County Courthouse located at 2500 Lee Street in 

Greenville, Hunt County, Texas by Charles E. Perry, Counsel for the defendant 

Brian Woodard.

 /s/ Charles E. Perry