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 CLERK2 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 Cou nty 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 Se3 Table of Contents
Table of Authorities

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .3 Appellant ’s Response to State ’s Brief

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State ’ s Claim that “ there was no arrest, no searches and no seizures ”

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Conclusion

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Certificate of Word Count

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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)

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US Constitution

U.S. Const. amend. IV ......................................................

. ......... ... ... ... ... .. ... 4, 5, 64 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 s imply lacks legal merit. The precedent is well established that when the police cause the reasonable person to feel that they are not f ree to leave a police encounter, they have seized that person within the meani ng of the Fourth Amendment. See United States v.
Mendenhall , 446 U.S. 544, 554 ( 198 0 ). 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 se t 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 co nstitute a "seizure" within the

m eaning 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 Cour t 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, th e 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 , t he 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 sto p wa s 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 tr affic stop was effected without a warrant and opined that Davis was not free to leave. At the point, Davis pro ved a prima facie case that said traffic stop violated the Fourth Amendment. The State presented zero evid ence t o 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 r eply (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, sign ature, proof of service, certification, certificate of c ompliance, and appendix) is 644

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______________________________ David Mark Davis II Appellant, Pro Se