651-15

NO.

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

Joseph Michael Pierce,

Appellant/Petitioner;

vs.

ORIGINAL

RECEIVED IN

COURT OF CRIMINAL APPEALS

JUL 30 2015

The State of Texas, AbetACOSla,Ctelk

Appellee/Respondent.

Appellant's Petition for Discretionary Review

In Appeal No. 12-14-00073-CR

Court of Appeals

for the Twelfth Judicial District

Tyler, Texas

FILED IN

COURT OF CRIMINAL APPEALS

JUL 3 0 2C;5

Abel Acosta, Clerk

Joseph Michael Pierce

Petitioner, Pro Se

TDCJ-CID #01919200

Stiles Unit

3060 FM 3514

Beaumont, Texas 77705

Appellant Requests Oral Argument
LIST OF PARTIES

APPELLANT

Joseph Michael Pierce

APPELLEE

The State of Texas

DEFENSE ATTORNEY AT TRIAL

On the Original Plea.jand Adjudication

Jason Ellis

Attorney at Law

120 South Broadway, Suite .109

Tyler, Texas 75702:.

903-705*6236

STATE'S ATTORNEY AT TRIAL

On the Original Plea and Adjudication

Jacob Putman and Chris Gatewood

Smith County Criminal District Attorney's Office

100 North Broadway, 4th Floor

Tyler, Texas 75702

903-590-1720

APPELLANT'S ATTORNEY AT 12TH COURT OF APPEALS

James Huggler

Attorney at Law

100 East Ferguson, Suite 805

Tyler, Texas 75702

903-593-2400

APPEU^E'S ATTORNEY AT 12TH COURT OF APPEALS

Michael West

Smith County Criminal District Attorney's Office

100 North Braodway, 4th Floor

Tyler, Texas 75702

903-590-1720

STATE'S PROSECUTING ATTORNEY

P.O. Box 12405

Austin, Texas 78711

Appellant's Petition for Discretionary Review - Page ii
TABLE OF CONTENTS

List of Parties ii

Index of Authorities iv

Statement Regarding Oral Argument 1

Statement of the Case .... 1

Statement of Procedural History 2

Reasons for Review 3

Reason for Review One:

When a motorist touches the fog line that separates the road from the

improved shoulder, does this constitute driving on the improved shoulder

under Texas Transportation Code §545.058(a)?

Reason for Review Two:

Should the Twelfth Court of Appeals have abated the appeal and remanded

the case back to the trial court for express findings of fact where there

exist a central issue that is dispositive to the case and the existence of

implicit findings are ambiguous or insufficient to resolve the reasonable

suspicion for the stop?

Reason for Review Argument One .. 4

Reason for Review Argument Two, 10

Prayer for Relief 13

Certificate of Service 14

Verification or Inmate Declaration 14

Appendix A: Court of Appeals Opinion.- 15

Appendix B: Appellant's Brief on Appeal 24

Appellant's Petition for Discretionary Review - Page iii
INDEX OF AUTHORITIES

Statutes

Tex. Code Crim. Proc. Ann. art. 38.23 (West 2013) 9

Tex. Transp. Code. Ann. § 545.058 (West 2013) 4, 8, 9, 12

Cases

Ford v. State, 158 S.W.3d 488 (Tex.Crim.App.2005) 8

Goudeau v. State, 209 S.W.3d 713 (Tex.App;—Houston [14th Dist] 2006) 9

Maxwell v. State, 73 S.W.3d 278 (Tex.Crim.App.2002) 12

State v. Elias, 339 S.W.3d 667 (Tex.Crim.App.2011) 12, 13

State v. Mendoza, 365 S.W.3d 666 (Tex.Crim.App.2012) 13

United States v. Granado, 302 F.3d 421 (5th Cir.2002) 9

United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir.1999) 8

Whren v. united States, 157 U.S. 806 (1996) 8

Appellant's Petition for Discretionary Review - Page iv
No.

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

Joseph Michael Pierce,

Appellant/Petitioner;

vs.

The State of Texas,

Appellee/Respondent.

Appellant's Petition for Discretionary Review

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Appellant respectfully submits this Petition for Discretionary Review and

moves that this Honorable Court grant review of this cause and offers the

following in support thereof:

STATEMENT REGARDING ORAL ARGUMENT

The Appellant requests oral argument in this case because such argument :.v

may assist the Court in applying facts to the issues raised. It is suggested

that oral argument may help simplify the facts and clarify the issues and,

also, to shed light on the State's position on the issues since the State

waived argument on appeal.

STATEMENT OF THE CASE

Appellant was indicted for possession of more than four hundred grams of

methamphetamines. At a pre-trial suppression hearing, Appellant sought to

Appellant's Petition for Discretionary Review - Page 1
suppress the evidence of methamphetamines seized pursuant to a traffic stop.

The trial court denied the motion to suppress over Appellant's objection that

there was no reasonable suspicion to initiate the traffic stop. The trial

court refused to give a reason for the denial. At trial, the trooper recanted

his suppression hearing testimony that touching oridriving on the fog line was

a traffic violation. The jury convicted Appellant and assessed his punishment

at seventy years confinement and a fine of $250,000.00. The court of appeals

affirmed the conviction, holding that the trooper had reasonable suspicion to

initiate a traffic stop and that the trial attorney was not ineffective for

failing to request findings of fact and conclusions of law. This petition

challenges those holdings.

STATEMENT OF PROCEDURAL HISTORY

In Cause No. 114-0648-13 the Appellant was charged with the felony offense

of possession with intent to deliver methamphetamine, more than 400 grams. The

Appellant was convicted of?such offense and appealed the conviction. The court

of appeals affirmed the conviction. Pierce v. State, No. 12-14-00073-CR (Tex.

App.—Tyler, delivered April 30, 2015)(Not designated for publication). No

motion for rehearing was filed.

Appellant's Petition for Discretionary Review - Page 2
REASONS FOR REVIEW

Reason for Review One:

When a motorist touches the fog line that separates the road from the

improved shoulder, does this constitute driving on the improved shoulder

under Texas Transportation Code § 545.058(a)?

Reason for Review Two:

Should the Twelfth Court of Appeals have abated the appeal and remanded

the case back to the trial court for express findings of fact where there

exist a central issue that is dispositive to the case and the existence of

implicit findings areiambiguous or insufficient to resolve the reasonable

suspicion for the stop?

Appellant's Petition for Discretionary Review - Page 3
REASON FOR REVIEW ARGUMENT ONE

When a motorist touches the fog line that separates the road from the

improved shoulder, does this constitute driving on the improved shoulder under

Texas Transportation Code § 545.058(a)?

The question in this case is whether a police officer has probable cause

or reasonable suspicion for a traffic stop when the officer observes the tires

of a motorist's vehicle touch the fog line that separates the road::from the

impfbved shoulder, and whether a court of appeals'.sanctioning of a trial

Courtis conclusion of law that it does calls for an exercise of the Court of

Criminal Appeals' power of supervision.

A Brief Discussion of the Facts Explaining the Incident in Which the Traffic

Stop was Initiated.

On February 22, 2013, a little after midnight, Trooper Jeremy Frazier of

the Texas Department of Public Safety was sitting on the eastbound side of

Interstate 20 at a scale house with his vehicle facing northward. Trooper

Frazier testified that he hadfiobserved Appellant's vehicle cross the fog line

onto the shoulder of the road travelling eastbound. Because his vehicle was

facing northward, the alleged action.was not captured on the trooper' vehicle

recorder.

Trooper Frazier pulled out onto the road and followed the vehicle. Accord

ing to Trooper Frazier, he wanted-to "observe the vehicle and see if it com

mits any other traffic violations, observe the driving. It could be somebody's

on their cell phone, it could be that they're intoxicated." Trooper Frazier

follows Appellant forrroughly 1 minute and 30 seconds when he then observes

1. Appellant's use of the term "fog line"'is also referred to as the "white

line" and the "line separating the;.[road] from the shoulder" in the

transcripts.

Appellant's Petition for Discretionary Review - Page 4
2

the vehicle touch the fog line—but not cross it. Trooper Frazier turned on

his emergency lights shortly after seeing this, testifying that it was at this

3

point that he decided to initiate a traffic stop.

Trooper Frazier;told Appellant, "Reason vfor: the stop, when I got there

behind you, I noticed you hit thatvwhite line a few times. I don't know if you

4

were just watching me behind you." Trooper Frazier did not/testifyythatcAppellant appeared to be: intoxicated while driving, that he was driving in a dan

gerous manner or erratically, swerving or veering from side to side, or that

he was concerned that Appellant may be fatiqued or impaired. Nor does the

video show this kind of behaviour.

According to Trooper Frazier, when he asked Appellant for his driver's

license, Appellant told him that his license had been suspended, that Appel

lant was acting overly nice, and that Appellant's passenger was acting overly

nervous. Trooper Frazier also noticed that Appellant and his passenger had

lots of sores on them, which he associated with methamphetamine use. Trooper

Frazier then asked Appellant to step out of the vehicle and into the trooper's

vehicle to ask him some questions. Trooper Chris Baker arrived shortly after

wards .

A subsequent search of Appellant's vehicle resulted in the seisure of the.:

methamphetamines used against him at trial. In a conversation shorty after

2. It should be noted that Trooper Frazier's testimony is inconsistant as to

whether the vehicle touched the fog line once or several times/ an action

that he believed was the same as driving on the improved shoulder.

3. There is a reasonable inferrence from Trooper Frazier's testimony that

since he was only observing Appellant's vehicle prior to this/ he would

not have initiated a traffic stop if the vehicle had not touched the fog

line while he was behind it.

4. Specifically/ Trooper Frazier stated that this occurred when he was driv

ing behind him/ not earlier. Trooper Frazier stated that he was honest with

Appellantcwhen he told him the reason for pulling him over.

Appellant's Petition for Discretionary Review - Page 5
the evidence was seized—that was captured on the vehicle recorder—Trooper

Baker asks Trooper Frazier what he pulled Appellant over for. Trooper Frrazier

told him it was for "driving on the white line." Trooper Frazier then told

5

Trooper ..Baker that he asked Appellant if:::he was looking back at him.

Trooper Frazier made out his incident report on February 27, 2013. The

report indicated that Trooper Frazier observed Appellant commit a traffic

violation at which point he activated his emergency lights. Trooper Frazier

testified that this was consistent with the video which shows Appellant touch

the fog line—according to his testimony—and then he activates the emergency

lights. The report does not indicate that Trooper Frazier observed Appellant

commit a traffic violation, activated his emergency lights, then had to enter

traffic, follow Appellant to catch up with him and then follow him for a while

before pulling him over. Moreover, the report indicates that the traffic vio

lation occurred at mile marker: 548—not at mile marker 546 where Appellant :':\.::

firstrepassed Trooper Frazier.

Appellant sought to suppress all evidence. from the traffic stop. The trial

court held a hearing on the motion to suppress. The court denied the motion.

Appellant requested a reason for::the denial of the motion, to which the court

responde, "I'm not going to answer your question. I don't really discuss the

reasons for court rulings That's the sort of instructions they give you

at judge school [,] just make a ruling."

At trial, Trooper Frazier recanted his earlier statement about driving on

the fog line being the same as driving on the improved shoulder. Trooper

5, This is now twice in the video that Trooper Frazier indicated thatythe

reason he pulled Appellant over was for driving on the fog line-while he

was immediately behind him.

Appellant's Petition for Discretionary Review - Page 6
Frazier now testifies that driving on the line is not the same as driving on

the improved shoulder; that you actually "got to cross over the white line" to

be considered driving on the shoulder. A jury convicted Appellant as charged.

Did the Court of Appeals Misunderstand or Overlook the Specific Incident in

Which Trooper Frazier had Based his Traffic Stop? Or did they Hold that Touch

ing the Fog Line Established Reasonable Suspicion or Probable Cause?

In its memorandum opinion, the Twelfth Court of Appeals made a de novo

review of the trial court's denial of Appellant's motion to suppress. However,

in doing so, the court of appeals could not rely on express findings of fact

from the trial court. Instead, the court of appeals could only view the evi

dence in the light most favorable to the trial court's ruling and assume that

the trial court made implicit findings of fact supporting its ruling. (Opinion

at 4-5).

Specifically, the court of appeals focused its review on whether the

record supported an implicit finding that :Trooper Frazier saw Appellant driv

ing on the improved shoulder. Based on their belief that the trial court had

made a determination of this historical fact, which turned on Trooper Frazier's

credibility and demeanor, the court of appeals gave due dilligence to the

trial court's ruling and held that the trial court did not abuse its discre

tion by denying Appellant's motion to suppress. (Opinion at 4-5).

The court of appeals focus on the driving on the shoulder incident is a

misunderstanding of the facts of the case. The court has overlooked Trooper

Frazier's testimony, the video recording, and the incident report—all showing

that Trooper Frazier pulled Appellant over for touching the fog line while he

was behind him, not for the earlier incident. The court also overlooked the

trooper's belief that driving on the fog line was driving on the improved,

shoulder.

Appellant's Petition for Discretionary Review - Page 7
In his appellate brief, Appellant focused his appeal issue on the conten

tion that Trooper Frazier had indicated multiple times that he initiated the

traffic stop because Appellant's vehicle touched the fog line while he was

behind him. (Brief at 10, 13).

Appellant argued that Trooper Frazier did not have a reasonable suspicion

or probable cause to support the traffic stop for Appellant touching the fog

line. In order to stop or briefly detain Appellant,.Trooper Frazier was requir

ed to have "reasonable suspicion" that Appellant was violating the law. See

Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). Whether or not Trooper

Frazier had a reasonable suspicion is evaluated from an objective perspective.

Whren v. United States, 157 U.S. 806 (1996). In other words, looking at the

facts available to Trooper Frazier at the moment of the investigation, would a

person of reasonable caution believe that a traffic violation occurred. See

United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir.1999).

Trooper Frazier testified at the pre-trial suppression hearing that he

pulled Appellant over for touching the fog line ..when he was driving behind

him. Trooper Frazier testified that he had "learned at the DPS academy" that

"if: a tire touches the white [line]", which he stated was the same?as "riding

on the line", then that is "the same thing as driving on the improved shoulder"

because he "believe[d] the fog line is part of the improved shoulder."

Under the Transportation:.Code, § 545.058(a), entitled "Driving on the

Improved Shoulder", the term "fog line", "white line", "line separating the

road from the improved shoulder", or any other variation pertaining to the

line in question, is not included or defined to be considered a part of the

improved shoulder.

At trial, Trooper Frazier recanted his earlier pre-trial testimony stating

Appellant's Petition for Discretionary Review - Page 8
that he was "never trained that driving on top of the white line is driving on

the improved shoulder," that you have to "cross over the white::lirie." Trooper

Frazier's reasonable suspicion of an alleged traffic violation cannot be based

on a mistaken understanding of traffic laws. United States v. Granado, 302 F.3d

421, 423 (5th Cir.2002); Goudeau v. State, 209 S.W.3d 713, 716 (Tex.App.—

Houston [14th Dist.] 2006, no pet.). And Trooper Frazier's honest but mistaken

understanding of the traffic law which prompted the stop is not an exception

to the reasonable suspicion requirement. Goudeau, 209 S.W.3d at 716. Trooper

Frazier's misunderstanding about whether driving on the line constituted an

offense cannot support a reasonable suspicion. There wereno additional factors

that might support a reasonable suspicion to stop.. ,

Appellant believes that the State has conceeded to the error twice in the

proceedings below. At trial, the State made no objections to an Article 38.23(a)

jury instruction advanced by Appellant after Trooper Frazier recanted his pre

vious testimony. Second, the State chose to not file an appeal brief in reply

to Appellant's brief. The failure of the State to object to the jury instruc

tions and its failure to file an appeal brief should be considered as a con

fession of error.

Since Trooper Frazier failed to articulate specific facts that support a

reasonable.suspicion that Appellant had violated section 545.058, the stop and

ensuing search were illegal and the evidence seized as a result thereof should

have been suppressed.

6. It should be noted that the court of appeals did not address the State's

confession of error in its independent review of the case.

Appellant's Petition for Discretionary Review - Page 9
REASON FOR REVIEW ARGUMENT TWO

Should the Twelfth Court of Appeals have abated the appeal and remanded

the case back to the trial court for express findings of fact where there

exist a central issue that is dispositive to the case and the existence of

implicit findings are ambiguous or insufficient to resolve the reasonable

suspicion for the stop?

The question in this case is whether the court of appeals should have

instructed the trial court to make express findings of fact indicating which

incident the trooper initiated the traffic stop, which would affect the final

determination of the case. There are implicit factual findings by the trial

court that bring about questions as to whether it denied the motion to sup-:::

press for for touching the white line or for driving on the improved shoulder.

These facts, should be clarified before the court of appeals finds reasonable

suspicion for the stop exists.: Further,;:Appellant made a formal request to be

given a reason for the denial of his motion:to:suppress.

The Court of Appeals De Novo Review of the Evidence.

To avoid repetition, Appellant incorporates:the facts from his Reason for

Review One herein and supplements those facts with the following:

On January 21, 2014, Appellant asked the trial court why it hadidenied

";his motion to suppress. The trial court stated, "I'm not going to answer your

question.ii really don't discuss the reasons for Court rulings That's the

sort of instructions they give you at Judge school[,] is just make a ruling ..

.. But anyway, because I thought it was the correct ruling is the answer." The

trial court did not include any findings of fact and conclusions of law with

its denial of the motion.

Up until this point, the trial court had heard testimony from Trooper

Frazier of two distinct Instances in which he had observed Appellant driving

Appellant's Petition for Discretionary Review - Page 10
on the improved shoulder. The first instance was not captured on the vehicle

recorder. The second instance was captured on the vehicle recorder. Trooper

Frazier testified that it was the second instance of driving on the improved

shoulder that he initiated the traffic stop for. This is supported by Trooper

Frazier telling both Appellant and Trooper Baker—during the stop—that this

was the reason he pulled Appellant over. Trooper Frazier's incident report

further cites this reason for the stop.

In the second instance, Trooper Frazier testified that the?vehicle had

touched the fog line. The video from the vehicle:recorder does not show the

vehicle's tires touch the fog line, but it does show the vehicle to the right

of the lane. Trooper Frazier's testimony included his belief that touching the

fog line was the same as driving on the improved shoulder.

The dispositive issue here is whether the trial court denied Appellant's

motion to suppress for the first instance or the second instance, ofdriving on

the improved shoulder.

Dealing with the first instance, the trial court would have had to find

Trooper Frazier credible in his testimony of the facts,involving the first

issue. The fact that Trooper Frazier was inconsistant in his testimony as to

how many times Appellant drove on the improved shoulder, or whether he drove

on the fog line or touched it, coupled with the fact that Trooper Frazier's

incident report did not offer even a scintilla of information on the first

instance—nor did he explain why he did not mention it,-makes it highly improb

able that the trial court found Trooper Frazier credible as to the.first

instance. Further, the fact that Trooper Frazier testified that he did not

initiate a traffic stop based on the first instance would lead a reasonable

person to believe that the trial court relied on!the second instance to find

Appellant's Petition for Discretionary Review - Page 11
reasonable suspicion for the stop.

In dealing with the second instance, the trial court would have relied on

Trooper Frazier's testimony that touching the fog line was the same as driving

on the improved shoulder. However, as discussed in Reason for Review One, ante,

the white line that separates the road from the shoulder is not defined as

being a part of the improved shoulder, which would not have made touching the

fog line a traffic violation. See Texas Transportation Code § 545.058(a).

If the trial court relied on Trooper Frazier's testimony that touching the

fog line was the same as driving on the improved shoulder to deny the motion

to suppress, then it based its decision on a misunderstanding of the law.

These are the facts that the court of appeals based its review of the

record. While the trial court is the exclusive trier of fact and judge of

Trooper Frazier's testimony, Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim

App.2002), the trial court did not make such findings, and the court of appeals

was not in a position to determine the credibility issue. See State v. Elias,

339 S.W.3d 667, 676 (Tex.Crim.App.2011)(instructing thatlappellate ;court should

have remanded to trial court for credibility determination).

At this point, ihowever, the record is insufficient to determine whether

credibility even came into play in denying the motion to suppress. The record

contains ambiguous facts dealing with two different instances of driving on

the improved shoulder, neither of which the trial court hasrclarified its

reliance.

Since the trial court did not indicate which instance the traffic stop was

based—which is a dispositive issue here—the court of appeals was left with

an inadequate record on which to base its review. The court of appeals should

have remanded the case back to the trial court to make express findings of fact

Appellant's Petition for Discretionary Review - Page 12
explaining the basis in which it found reasonable suspicion for the traffic

stop and whether or not Trooper Frazier's credibility affected the outcome of

the motion to suppress. See State v. Mendoza, 365 S.W.3d 666, 673 (Tex.Crim.

App.2012)(instructing appellate court to remand to trial court for additional

findings on credibility and to clarify ambiguous factual findings); Elias,

339 S.W.3d at 676-77 (instructing appellate court to remand to trial court for

additional findings on dispositive issue).

PRAYER FOR RELIEF

For the reasons stated above, it:!is respectfully submitted that the Court

of Criminal Appeals of Texas should GRANT this Petition for Discretionary

Review.

Respectfully submitted,

As*-

Jgteepti Michael Pierce

#01919200

Stiles Unit

3060 FM 3514

Beaumont, Texas 77705

Mfh r\id\cp$'Ma

Appellant's Petition for Discretionary Review - Page 13
CERTIFICATE OF SERVICE

I, Joseph Michael Pierce, certify that a true and correct copy of the

foregoing Petition for Discretionary Review has been mailed, U.S. Mail, post

age prepaid, to the SMth;County.:,Criminal:district /Attorney';s;Office, 100 North

Broadway, 4th Floor, Tyler, Texas 75702, and to the State Prosecuting Attorney,

P.O. Box 12405, Austin, Texas 78711, on this the &H day of July, 2015.

I .further certify that this Petition for Discretionary Review was delivered

to the Stiles Unit Mailroom for mailing to the Court of Criminal Appeals of

Texas on this the g?/ day of July, 2015.

•)oef}\ folded/ It "iseph Michael Pierce

VERIFICATION OR INMATE DECLARATION

I, Joseph Michael Pierce, TDCJ-CID #01919200, DOB bff-Q^-fflF, being

presently incarcerated in the Stiles Unit of the Texas Department of Criminal

Justice, Institutional Division, Beaumont, JeffersomCounty, Texas, declare

(certify, verify, or state) under penalty of perjury that I have read the above

and foregoing petition, that the facts contained herein are true and correct,

and that this petition is made in good faith.

EXECUTED, this the Qj "day of July, 2015.

)seph Michael Pierce

Appellant's Petition for Discretionary Review - Page 14
APPENDIX A: COURT OF APPEALS OPINION

Appellant's Petition for Discretionary Review - Page 15
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 30, 2015

NO. 12-14-00073-CR

JOSEPH MICHAEL PIERCE,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appealfrom the 114thDistrictCourt

of SmithCounty, Texas (Tr.Ct.No. 114-0648-13)

THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion ofthis court that there was no error inthe

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that this decision be certified to the court

below for observance.

James T. Worthen, ChiefJustice.

Panelconsisted ofWorthen, C.J., Hoyle, J., andNeeley, J.
NO. 12-14-00073-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOSEPH MICHAEL PIERCE, § APPEAL FROM THE 114TH

APPELLANT

V. § JUDICIAL DISTRICTCOURT

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Joseph Michael Pierce appeals his conviction for possession of more than four hundred

grams ofmethamphetamines, for which he was sentenced to imprisonment for seventy years and

a fine of $250,000.00. In two issues, Appellant argues that the trial court erred by overruling his

motion to suppress evidence, and that his trial counsel rendered ineffective assistance. We

affirm.

Background

Texas State Trooper Jeremy Frazier stopped Appellant on Interstate 20 in Smith County

for driving on the improved shoulder. During his investigation, Trooper Frazier became

suspicious of possible criminal activity. He requested consent to search the vehicle, but

Appellant refused. Trooper Frazier then called for a K-9 sniff of the vehicle. The dog alerted.

Trooper Frazier and another trooper searched the vehicle and located a large amount of

methamphetamine inside a backpack in the back seat.

Appellant was charged by indictment with possession of four hundred grams or more of

methamphetamine. He filed a motion to suppress the evidence, challenging the initial stopof the

vehicle and his extended detention. After a hearing, the trial court denied the motion to suppress.
Appellant then pleaded "not guilty," and the matter proceeded to a jury trial. The trial

court submitted a jury instruction under Texas Code of Criminal Procedure Article 38.23

regarding reasonable suspicion for the initial stop. The jury found Appellant "guilty" as charged

.and-assessed his punishment at imprisonment for seventy years and a fine of$250,000.00. This

appeal followed.

Motion to Suppress

In his first issue, Appellant argues that the trial court erred in denying his pretrial motion

to suppress. Although he challenged both the initial stop and his extended detention in the trial

court,he challenges onlythe initial stop on appeal.

Standard ofReview

We review a trial court's ruling on a motion to suppress under a bifurcated standard of

review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000). Atrial court's decision to grant or deny amotion to

suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273

S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court's

determination ofhistorical facts, especially ifthose determinations turn on witness credibility or

demeanor, and review de novo the trial court's application ofthe law to facts not based on an

evaluation ofcredibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.

2008). When deciding amotion to suppress evidence, atrial court is the exclusive trier of fact

and judge ofthe witnesses' credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a

witness's testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

When a trial court does not make express findings offact, we view the evidence in the

light most favorable to the trial court's ruling and assume the trial court made implicit findings of

fact that support its ruling as long as those findings are supported by the record. Lujan v. State,

331 S.W.3d 768, 771 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to "the

strongest legitimate view ofthe evidence and all reasonable inferences that may be drawn from

that evidence." State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). When all

evidence is viewed in the light most favorable to the trial court's ruling, an appellate court is

obligated to uphold the ruling on amotion to suppress if that ruling is supported by the record
and is correct under any theory of law applicable to the case. See Ross, 32 S.W.3d at 856;

Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

Governing Law

Aroutine traffic stop closely resembles an investigative detention. Powell v. State, 5

S.W.3d 369, 375 (Tex. App.-Texarkana 1999, pet. refd); see also United States v. Brigham,

382 F.3d 500, 506 (5th Cir. 2004). Because an investigative detention is aseizure that implicates

the United States and Texas Constitutions, the traffic stop must be reasonable. U.S. CONST,

amend. IV; Tex. Const, art. I, §9; Francis , State, 922 S.W.2d 176, 178 (Tex. Crim. App.

1996) To determine the reasonableness of an investigative detention, we conduct the inquiry set

forth by the United States Supreme Court in Terry v. Ohio and determine (1) whether the

officer's action was justified at its incept.on and (2) whether it was reasonably related in scope to

the circumstances that'initially justified the interference. See Terry v. Ohio, 392 U.S. 1, 19-20,

88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968); Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim.

App. 1997).

Under the first part of the inquiry, an officer's reasonable suspicion justifies an

investigative detention. Davis, 947 S.W.2d at 242-43. Specifically, the officer must have a

reasonable suspicion that some activity out of the ordinary is occurring or has occurred. Id at

244 (citing Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)). Alaw enforcement

officer may stop and briefly detain aperson for investigative purposes on less information than is

constitutionally required for probable cause to arrest. Foster v. State, 326 S.W.3d 609, 613 (Tex.

Crim. App. 2010) (citing Terry, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889). An officer has

reasonable suspicion to detain aperson if he has specific, articulable facts that, combined with

rational inferences from those facts, would lead him reasonably to conclude that the person

detained is, has been, or soon will be engaged in criminal activity. State v. Elias, 339 S.W.3d

667, 674 (Tex. Com. App. 2011). This is an objective standard. Id Thus, when an officer has a

reasonable basis for suspecting that aperson has committed an offense, the officer may legally

initiate an investigative stop. See Powell, 5S.W.3d at 376 (citing Drago v. State, 553 S.W.2d

375, 377-78 (Tex. Crim. App. 1977)).

Under the second part of the inquiry, the "investigative stop can last no longer than

necessary to effect the purpose ofthe stop." Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App.

2004). The issue is "whether the police diligently pursued ameans of investigation that was
Italy to confirm or dispel their suspic.ons quickly, durmg which time it was necessary to deta,n

the defendant.- Ua. 64-65 (quoting Untied Sta.es v. Step*. 470 U.S. 675,685-86, 105 S. Ct.

1568 1569 84 L.Ed.ld 605 (1985)) With regard to atraffic stop, an officer can conduct a

,^1 an/warrants check. Ma,63. An officer also may ask me driver ,0 exit the veh.cle See

Strauss v. Stale, 121 S.W.3d 486,491 (Tex. App.-Amarillo 2003, pet. refd).

Analysis .

Appellant argues that the evidence found after the imt.al stop should be suppressed

because Trooper Frazrer's testimony regardmg that mstanee was based solely on his memory and

his report whrch was wnften five days after the even,. Appellant notes that the firs, alleged

mstanee of Appellant dnvmg on the unproved shoulder was not recorded by Trooper Frazrer s

v.deo camera. He further notes that the vrdeo recording only shows the vehicle's tires on the Ime

and not onthe improved shoulder itself.

Under the transportation code, adriver may drive on an improved shoulder only if he can

do so safely and as necessary for one of seven enumerated purposes. See Tex. Transp. Code

ANN §545 058(a) (West 2011). At the suppression hearing, Trooper Frazier testified that he

was parked sideways, or northbound, at the scale house on eastbound Interstate 20 mSmith

County when he first saw Appellant's vehicle. He testified that he saw Appellant's vehicle cross

over the white line on the right side that divides the interstate from the shoulder.

Trooper Frazier stated that Appellant's vehicle crossed the line by adistance of about half

the width of the vehicle. The video does not show this action because of the direction the

trooper's vehicle was facing at the time. Trooper Frazier pulled out behind Appellant and

followed him ashort distance. He testified that as he was approaching Appellant's vehicle,

Appellant "rode on top ofthe white line."

The video shows the vehicle very far right in the lane, but does not clearly show the tiresexact relationship to the white line. The video shows no apparent necessity for the vehicle to be

on or across the white line. After Trooper Frazier stopped Appellant, the video shows him

asking Appellant if he had had anything to drink. Trooper Frazier testified that he asked that

question because the vehicle had "crossed over the shoulder several timesBased on our review ofthe record, we conclude that the record supports the trial court's

implied finding that Trooper Frazier saw Appellant driving on the improved shoulder. The trial

court's determination ofthis historical fact turned on Trooper Frazier's credibility and demeanor.
The trial court was the exclusive trier offact and judge ofthe witness's credibility. Maxwell, 73

S.W.3d at 281. Accordingly, the trial court was free to choose to believe or disbelieve all or any

part of his testimony. See Ross, 32 S.W.3d at 855. Therefore, we give almost total deference to

the trial court's determination of that fact. See Neal, 256 S.W.3d at 281. Having given due

deference to the trial court's ruling, we hold that the trial court did not abuse its discretion by

denying Appellant's motion to suppress. Accordingly, we overrule Appellant's first issue.

Ineffective Assistance of Counsel

In his second issue, Appellant contends that he received ineffective assistance of counsel

and asks this court to grant a new trial.

Standard of Review and Applicable Law

In reviewing an ineffective assistance of counsel claim, we follow the United States

Supreme Court's two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).

Under the first prong of the Strickland test, an appellant must show that counsel's performance

was "deficient." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,

712 (Tex. Crim. App. 2000). "This requires showing that counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant

must "show that counsel's representation fell below an objective standard ofreasonableness."

Id., 466 U.S. at688, 104 S. Ct. at2064; Tong, 25 S.W.3d at 712.

Under the second prong, an appellant must show that the "deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at

712. The appropriate standard forjudging prejudice requires an appellant to "show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result ofthe proceeding

would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at2068; Tong, 25 S.W.3d at

712. A reasonable probability is a probability sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at694,104 S. Ct. at2068; Tong, 25 S.W.3d at712.

Review ofa trial counsel's representation is highly deferential. Tong, 25 S.W.3d at 712.

We indulge in a "strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is
Appellant's burden to overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy. Id, Tong, 25 S.W.3d at 712. Moreover, any

allegation of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9S.W.3d 808, 813

(Tex. Crim. App. 1999). Rarely is the record on direct appeal sufficiently developed to fairly

evaluate the merits ofa claim ofineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002).

Failure to make the required showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim. Thompson, 9S.W.3d at 813. Appellant must prove

both prongs ofthe Strickland test by apreponderance ofthe evidence in order to prevail. Tong,

25S.W.3dat712.

Analysis

Appellant argues that his trial counsel was ineffective because he failed to request

findings of fact and conclusions of law following the suppression hearing. He contends that

without these findings and conclusions, trial counsel was unable to adequately prepare for his

cross examination ofTrooper Frazier at trial. However, the record shows that trial counsel

performed avery thorough cross examination ofTrooper Frazier, and Appellant does not explain

how the trial court's findings offact and conclusions oflaw might have changed it.

Appellant further contends that without findings offact and conclusions oflaw, appellate

counsel is unable to adequately challenge the suppression ruling on appeal. However,

Appellant's burden is to "show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." See Strickland,

466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. Appellant has not shown any

reasonable probability that a request for findings offact and conclusions of law would have

changedthe outcome of his trial. See id

Furthermore, the record is silent as to counsel's possible strategic reasons for not

requesting findings offact and conclusions oflaw. Therefore, we conclude that the record is not

sufficiently developed to fairly evaluate whether counsel was ineffective for this omission. See

Bone, 77 S.W.3d at833. Accordingly, we overrule Appellant's second issue.
Disposition

Having overruled Appellant's first and second issues, we affirm the trial court's

judgment.

" " — ~ "" ~ " .tames T;Worthen

ChiefJustice

Opinion delivered April 30, 2015.

Panel consisted ofWorthen, C.J., Hoyle, 1, andNeeley, J.

(DONOT PUBLISH)
APPENDIX B: APPELLANT'S BRIEF ON APPEAL

Appellant's Petition for Discretionary Review - Page 24
/

I «,- ITWWWI \J~

TWELFTH COURT OF APPE

TYLER, TEX

9/10/2014 4:45:38 F

CATHY LU

CLE

ORAL ARGUMENT REQUESTED

NO. 12-14-00073-CR

IN THE COURT OF APPEALS

12th JUDICIAL DISTRICT

TYLER, TEXAS

JOSEPH PIERCE,

APPELLANT

VS.

THE STATE OF TEXAS,

APPELLEE

RECEIVED IN

12th COURT OF APPEALS

TYLER, TEXAS

9/10/2014 4:45:38 PM

CATHY S. LUSK

Clerk

FILED

9/10/2014

Twelfth Court of Appeals

Cathy Lusk

Clerk

ON APPEAL IN CAUSE NUMBER 114-0648-13

FROM THE 114TM JUDICIAL DISTRICT COURT

OF SMITH COUNTY, TEXAS

HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING

APPELLANT'S BRIEF

JAMES W. HUGGLER, JR.

100 E. FERGUSON, SUITE 805

TYLER, TEXAS 75702

903-593-2400

STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

Joseph Pierce

APPELLANT'S TRIAL COUNSEL

Jason Ellis

120 South Broadway, Suite 109

Tyler, TX 75702

903-705-6236

APPELLANT'S APPELLATE COUNSEL

James Huggler

100 E. Ferguson, Suite 805

Tyler, Texas 75702

903-593-2400

903-593-3830 (fax)

APPELLEE

The State of Texas

APPELLEE'S TRIAL COUNSEL

Jacob Putman

Chris Gatewood

Smith County Criminal District Attorney's Office

100 N. Broadway, 4th Floor

Tyler, Texas 75702

903-590-1720

903-590-1719 (fax)

APPELLEE'S APPELLATE COUNSEL

Michael West

Smith County Criminal District Attorney's Office

100 N. Broadway, 4th Floor

Tyler, Texas 75702

903-590-1720

903-590-1719 (fax)
TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ii

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES v

STATEMENT OF THE CASE 1

ISSUES PRESENTED 2

ISSUE ONE: THE TRIAL COURT ERRED IN DENYING

APPELLANT'S MOTION TO SUPPRESS EVIDENCE

SEIZED FROM HIS VEHICLE SINCE THE OFFICER HAD

NO REASONABLE SUSPICION UPON WHICH TO BASE

THE INITIAL STOP OF APPELLANT'S VEHICLE.

ISSUE TWO: COUNSEL RENDER INEFFECTIVE

ASSISTANCE BY FAILING TO REQUEST FINDINGS OF

FACT AND CONCLUSIONS OF LAW AT THE HEARING

ON THE MOTION TO SUPPRESS.

STATEMENT OF FACTS 3

SUMMARY OF ARGUMENT 8

ARGUMENT AND AUTHORITIES 9

ISSUE ONE, RESTATED 9

A. Facts 9

B. Standard of Review 11

C. Application 12

D. Harm Analysis 14

ISSUE TWO, RESTATED 15

iii
A. Facts 15

B. Standard of Review 16

C. Application 17

PRAYER 19

CERTIFICATE OF SERVICE 20

CERTIFICATE OF COMPLIANCE 20

IV
TABLE OF AUTHORITIES

STATUTES

Tex. Code Crim. Proc. Ann. art. 38.23 (West 2013) 7

Tex. Health & Safety Code Ann. § 481.112(a),(fXWest 2013). .. 1, 2, 3

Tex. Transp. Code Ann. § 545.085 (West 2013) 4,13

CASES

Aviles v. State, 23 S.W.3d 74 (Tex. App. - Houston [14th Dist.] 2000,

pet. refd) 12

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) 16

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) 11

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) 11

Goudeau v. State, 209 S.W.3d 713 (Tex. App. - Houston [14th Dist.]

2006, no pet.) 13

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) 11

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001) 13

Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) 16

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) 14

Russell v. State, 717 S.W.2d 7 (Tex. Crim. App. 1986) 11

State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006) 18

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) 18

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984) 17

Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013) 12

United States v. Granado, 302 F.3d 412 (5th Cir. 2002) 13

United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999) 12

Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769,

135 L. Ed. 2d 89 (1996) 11

RULES

Tex. R. App. P. 9.4 20

Tex. R. App. P. 38 1

Tex. R. App. P. 44.2(a) 14
NO. 12-14-00073-CR

JOSEPH PIERCE, § IN THE COURT OF APPEALS

APPELLANT 8

VS. § 12th JUDICIAL DISTRICT

THE STATE OF TEXAS, §

APPELLEE § TYLER, TEXAS

APPELLANT'S BRIEF

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES

THEREOF:

Comes now JOSEPH PIERCE, ("Appellant"), by and through his

attorney of record, JAMES HUGGLER, and pursuant to the provisions of

TEX. R. App. Proc. 38, et seq., respectfully submits this brief on appeal

STATEMENT OF THE CASE

Appellant was indicted in Cause No. 114-0648-13 for the felony

offense of possession with intent to deliver methamphetamine, more than

400 grams. I CR l; see Tex. Health &Safety Code Ann. § 481.112(a),

(f) (West 2013). At trial on February 25, 2014, Appellant entered a plea

of not guilty to the charged offense. IX RR 8. The jury found Appellant

guilty of the offense of possession with intent to deliver a controlled

1
substance, as charged in the indictment. X RR 109.

Appellant elected to have the jury assess his punishment. At the

conclusion of the punishment phase of the trial, the jury assessed his

punishment at 70 years' confinement and a fine of $10,000. XI RR 71.

See Tex. Health &Safety Code Ann. § 481.112 (f) (West 2013)(penalty

range). Notice of appeal was timely filed by appellate counsel on February

26, 2014. I CR 103.

ISSUES PRESENTED

ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APPELLANT'S

MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS VEHICLE

SINCE THE OFFICER HAD NO REASONABLE SUSPICION UPON

WHICH TO BASED THE INITIAL STOP OF APPELLANT'S VEHICLE.

ISSUE TWO: COUNSEL RENDER INEFFECTIVE ASSISTANCE BY

FAILING TO REQUEST FINDINGS OF FACT AND CONCLUSIONS

OF LAW AT THE HEARING ON THE MOTION TO SUPPRESS.
STATEMENT OF THE FACTS

As stated above, Appellant was indicted in Cause No. 114-0648-13

for the felony offense of possession with intent to deliver

methamphetamine, more than 400 grams. I CR l; see Tex. Health &

Safety Code Ann. § 481.112(a), (f) (West 2013).

Prior to trial, Appellant filed a motion to suppress the evidence

seized during the stop. II CR 2-3. At the hearing on Appellant's motion

to suppress, Trooper Jeremy Frazier testified that he was patrolling a

section ofInterstate 20 on February 22,2013. VRR 14-15. He stated that

he was sitting on the eastbound side of the road at a scale house, with his

vehicle facing north, when he observed a vehicle cross the white line onto

the shoulder of the road. V RR 23. He stated that its tires "cleared the

white line." V RR 23. Because his vehicle was facing northward, the

alleged action was not recorded on Frazier's vehicle recorder. V RR 25.

At that point, Frazier pulled out onto the road and followed the

vehicle. The subsequent actions of the driver, later identified as

Appellant, were recorded on Frazier's vehicle recorder, and the CD from

the recorder was introduced as State's Exhibit 1. V RR 21. After he began

following Appellant, he saw Appellant drive "on top of the white line,

3
which he alleged was still driving on the improved shoulder." V RR 25.

On cross examination, the following exchange occurred:

Q. What does driving on the improved shoulder mean to you?

A. It means that they - the tire of the vehicle touched the white line.

Q. Who taught you that?

A. I learned that at the DPS academy for training.

Q. So it's been your training that if a tire touches the white, that is

driving on the improved shoulder?

A. Well, it's riding on the line. Yes, sir.

Q. Is riding on the line the same thing as driving on the improved

shoulder?

A. Yes, sir. It is.

Q. So is it your -- are you telling the Court today that you believe the

fog line is part of the improved shoulder?

A. Yes, sir.

V RR 54.

Frazier then stopped Appellant, and told him that he pulled him

over because he touched the white line a few times. V RR 62. In his

report, he stated that the stop was for driving on the improved shoulder.1

1Section 545.058(a) of the TransportationCode, entitled "Drivingon ImprovedShoulder,"

provides that an operator may drive on an improved shoulder to the right ofthe main traveled

portion of a roadway ifthat operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane oftraffic;
V RR 64. He asked for Appellant's license and insurance. V RR 26.

Appellant told him that his license had been suspended, and the

passenger, Marlena Adams, provided the insurance. V RR 27-28. During

the stop, he took Appellant back to his police vehicle. V RR 31. He stated

that he noticed that Appellant and Adams both had a lot of sores, which

he believed was a common sign of methamphetamine use. V RR 31-32.

He also stated that Appellant was nervous and fidgety. V RR 34. He

asked ifAppellant had anything illegal in his car, such as guns, marijuana

or methamphetamines, and Appellant said no. V RR 37.

Frazier then asked if he could search the vehicle and Appellant

refused. V RR 38. Frazier called for a canine unit and Officer Josh Hill,

a certified K"9 handler, brought his dog to the scene and ordered the dog

to check the exterior of the vehicle. V RR 42,45-46; VI RR 45. The dog

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the main traveled portion ofthe

highway, disabled, or preparing to make a left turn;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

Tex. Transp. Code Ann. § 545.058(a).
"alerted" at the passenger compartment of the car. V RR 46-47. Frazier

and another officer, Kris Baker, searched the vehicle and found one and

a half pounds of methamphetamine inside a backpack. V RR 47. Frazier

then arrested Appellant and Adams. VI RR 48.

Frazier stated that he did not prepare his police report until five

days after the arrest was made. VI RR 6. He acknowledged that his

testimony about the first driving incident was from memory since it was

not captured on the video. VI RR 11.

At the conclusion of the suppression hearing, the court stated that

it would take the motion under advisement. The motion was denied on

December 18, 2013. I CR 54.

At trial, Officer Frazier related the same facts about the stop.

Appellant re-urged the objections he had made at the suppression hearing,

and the objections were overruled. IX RR 45; 58-59. On cross

examination, defense counsel revisited the issue ofwhether driving on the

line constituted driving on the shoulder. IX RR 106. In the following

exchange, Frazier admitted that driving on the line did not constitute an

offense.

Q. Well, Trooper, are you saying that the improved shoulder includes

6
the white line?

A. Once it's over the white line.

Q. Once you're past the white line?

A. Yes, sir.

Q. You told the State earlier, I think, that once you cross over the white

line, that's driving on the shoulder?

A. Cross it.

Q. And that's what you stand by today, right?

A. Yes, sir.

Q. You've got to cross over the white line?

A. Yes, sir.

Q. And so you're saying that you were never trained that driving on

top ofthe white line is driving on the improved shoulder? You were

never trained that way?

A. No, sir.

IX RR 106; 108 (emphasis added).

At the conclusion of the evidence at trial, Appellant sought and

received a jury instruction pursuant to TEX. Code CRIM. Proc. Ann.

§38.23(a) on the basis that the evidence raised a question offact regarding

the legality of the stop. XI RR 243. Appellant was subsequently convicted

of the charged offense. X RR 109.
SUMMARY OF ARGUMENT

In his first issue, Appellant argues that the trial court erred in

denying his motion to suppress the evidence found in his vehicle because

the officer did not have reasonable suspicion to initiate a stop after he

thought he saw Appellant briefly cross over the fog line onto the shoulder

ofthe road. The first instance of crossing the line was not recorded by the

officer's video recorder, and the officer's recollections were based solely on

memory and on a report prepared five days after the event. The video

from the officer's vehicle camera only reflected that Appellant drove on the

fog line briefly, which would not constitute driving on the shoulder.

Therefore, the evidence found as a result of the subsequent search was

inadmissible.

In the second issue, Appellant argues that the trial court counsel

was ineffective at trial because he failed to request findings of fact and

conclusions of law from the suppression hearing. The evidence presented

during the suppression suggested that the initial stop was illegal, thus

bringing into question the legality of the subsequent search. However, it

is impossible to review the specific reasoning for the trial court's ruling on

the motion with findings of fact and conclusions of law. Consequently,

8
trial counsel should have made the request.

ARGUMENT AND AUTHORITIES

ISSUE ONE (RESTATED): THE TRIAL COURT ERRED IN

DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE

SEIZED FROM HIS VEHICLE SINCE THE OFFICER HAD NO

REASONABLE SUSPICION UPON WHICH TO BASED THE

INITIAL STOP OF APPELLANT'S VEHICLE.

Appellant first asserts that the trial court committed reversible error

in denying his motion to suppress since the controlled substance evidence

was seized pursuant to an illegal stop. The officer had no reasonable

suspicion to stop Appellant; thus, the evidence found in the vehicle was

inadmissible and should have been suppressed.

A. Facts

Prior to trial, counsel filed a Motion to Suppress (II CR 2-3) and the

hearing on the motion was conducted prior to trial. XI RR 35. During the

hearing, Trooper Jeremy Frazier testified that he was perpendicular to

the highway on the side of the road at a scale house when he observed

Appellant's vehicle cross the white line onto the shoulder of the road. V

RR 23. Because his vehicle was facing northward, the alleged action was

9
not recorded on Frazier's vehicle recorder. V RR 25. Frazier then followed

the vehicle. He stated that he saw Appellant drive "on top of the white

line," which he believed was driving on the improved shoulder; at trial, he

admitted that this was a mistake. V RR 25. Frazier then stopped

Appellant, and informed him that he pulled him over because he touched

the white line a few times. V RR 62. His report stated that the stop was

for driving on the improved shoulder. V RR 64.

At the conclusion ofthe suppression hearing, Appellant argued that

the evidence was inadmissible because there was no evidence on the video

that Appellant had driven on the improved shoulder. VI RR 56-59. The

first instance was observed from a difficult vantage point and was not

recorded by Frazier's video recorder, nor mentioned in his report. IV RR

57-59. His testimony regarding his observation was based on memory

alone. The second instance For these reasons, Appellant argued that

Frazier did not have probable cause to stop the vehicle. VI RR 65. The

court denied Appellant's motion. I CR 54.

10
B. Standard of Review

An appellate court reviews the denial of a motion to suppress under

a bifurcated standard of review, giving deference to the trial court's

findings of historical fact supported by the record and reviewing de novo

the trial court's application ofsearch and seizure law. Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997).

When a police officer stops a defendant without a warrant and

without the defendant's consent, the State has the burden at a

suppression hearing of proving the reasonableness of the stop. Russell v.

State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986). A "stop" by a law

enforcement officer "amounts to a sufficient intrusion on an individual's

privacy to implicate the Fourth Amendment's protections" against

unreasonable searches and seizures. Carmouche, 10 S.W.3d 323,328 (Tex.

Crim. App. 2000). In order to stop or briefly detain an individual, an

officer must have "reasonable suspicion" that an individual is violating the

law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

Whether or not an officer has reasonable suspicion is evaluated from

an objective perspective. Whren v. United States, 517 U.S. 806, 116 S. Ct.

11
1769, 135 L. Ed. 2d 89 (1996); United States v. Lopez-Valdez, 178 F.3d

282, 288 (5th Cir. 1999); Aviles v. State, 23 S.W.3d 74, 77 (Tex.

App.--Houston [14th Dist.] 2000, pet. refd). In other words, looking at the

facts available to the officer at the moment of the investigation, would a

person of reasonable caution believe that a traffic violation occurred.

Lopez-Valdez, 178 F.3d at 288; Aviles, 23 S.W.3d at 77.

C. Application

At the suppression hearing, the only justification offered for stopping

Appellant was Frazier's unverified belief that he had committed a traffic

violation by driving on the shoulder. The critical issue argued by both

sides was whether any movement made by Appellant took him over the

fog line and onto the shoulder.2

There were two instances in which Appellant allegedly drove on the

shoulder. Frazier's testimony about the first instance was unsupported

by the video. He recalled at trial that, event though he was sitting near

2 Appellantmaintained this positionat trial,repeatedly raising objections based on the motionto

suppress and asserting in his arguments a violation ofthe Fourth Amendment that would bar the

jury from considering the State's evidence. Counsel also requested and received an instruction in

the jury charge on the statutory exclusionary rule. See Tex. Code Crim. Proc. Ann. §38.23(a)

(West 2013). Therefore, Appellant did not waive his challenge to the trial court's ruling on his

pretrial motion to suppress. See Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013).

12
a scale house and was perpendicular to the highway, he observed

Appellant cross the line. This alleged offense was not captured by the

video.

The second alleged incident was shown on the video and reflects that

Appellant drove on the line. Frazier's confusion about whether this

constituted an offense was reflected in his testimony. He first stated that

driving on the line was the same as driving on the shoulder; however, at

trial, he admitted that it did not constitute an offense. An officer's

reasonable suspicion of an alleged traffic violation cannot be based on a

mistaken understanding of traffic laws. United States v. Granado, 302

F.3d 421, 423 (5th Cir. 2002); Goudeau v. State, 209 S.W.3d 713, 716 (Tex.

App.-Houston [14th Dist.] 2006, no pet.). And an officer's honest but

mistaken understanding ofthe traffic law which prompted a stop is not an

exception to the reasonable suspicion requirement. Goudeau, 209 S.W.3d

at 716. Frazier's misunderstanding about whether driving on the line

constituted an offense cannot support a reasonable suspicion. There were

no additional factors that might support a reasonable suspicion to stop.

Since Frazier failed to articulate specific facts that support a

reasonable suspicion that Appellant had violated section 545.058, the stop

13
and ensuing search were illegal and the evidence seized as a result thereof

should have been suppressed.

D. Harm Analysis

Since the evidence was seized in violation of Appellant's Fourth

Amendment rights, the harm analysis for the erroneous admission of

evidence is Rule 44.2(a)'s constitutional standard. Hernandez v. State, 60

S.W.3d 106,108 (Tex. Crim. App. 2001). The reviewing court must reverse

the trial court's judgment, unless the court determines beyond a

reasonable doubt that the error did not contribute to Appellant's

conviction or punishment. TEX. R. App. P. 44.2(a). In applying the

"harmless error" test, the court must ask whether there is a "reasonable

possibility" that the error might have contributed to the conviction.

Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

In the present case, the challenged evidence formed the entire basis

for Appellant's conviction and punishment. Since there would be no

reasonable doubt that the error did not contribute to Appellant's

conviction, this Court should reach the inevitable conclusion that

Appellant was harmed by its admission.

14
ISSUE TWO (RESTATED): COUNSEL RENDER INEFFECTIVE

ASSISTANCE BY FAILING TO REQUEST FINDINGS OF FACT

AND CONCLUSIONS OF LAW AT THE HEARING ON THE

MOTION TO SUPPRESS.

Appellant maintains that trial counsel was ineffective for failing to

request findings offact and conclusions oflaw after the motion to suppress

hearing. By failing to request and obtain these findings, defense counsel

was not given the benefit of the Court's reasoning and was limited in the

preparation of his cross examination of Trooper Frazier at trial. The lack

of findings also harms his ability to challenge the ruling on the motion to

suppress on appeal.

A. Facts

After the hearing on the motion was conducted prior to trial, the

court stated that it would take the motion under advisement. VI RR 69.

Neither side requested findings of fact or conclusions of law. The motion

was subsequently denied in an order dated December 18, 2013. I CR 54.

The court did not include findings of fact and conclusions of law with its

order.

15
B. Standard of Review

The standard of review for ineffective assistance of counsel is set

forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984), and Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002).

To prevail, appellant must first show that his counsel's performance was

deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d

at 833. "Specifically, [an] appellant must prove, by a preponderance of the

evidence, that his counsel's representation fell below the objective

standard of professional norms." Bone, 77 S.W.3d at 833. Next, an

appellant must show that this deficient performance "prejudiced his

defense," meaning that he must show a reasonable probability that, but

for his counsel's unprofessional errors, the result of the proceeding would

have been different. Id. (quoting Mitchell v. State, 68 S.W.3d 640, 642

(Tex. Crim. App. 2002)). The appellant must show that 'there is a

reasonable probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.'" Id. (quoting Strickland, 466 U.S.

at 695, 104 S. Ct. 2052). Thus, the reviewing court must determine

whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced

16
a just result. Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.

C. Application

In the present case, the failure of defense counsel to request findings

of fact and conclusions of law severely limited his ability to prepare for

cross examination of Frazier since he was not given the benefit of know

the reasoning behind the court's ruling on the motion to suppress. It is

well settled that a non-prevailing party should attempt to get the

rationale for the trial court's ruling on the record through either a verbal

explanation at the hearing or express findings of fact and conclusions of

law. State v. Ross, 32 S.W.3d 853, 858 (Tex. (Tex. Crim. App. 2000).

Without this rationale, defense counsel would have been unable to combat

the court's concerns about the evidence.

Also, defense counsel's failure to make a proper request limits

Appellant's ability to make a precise challenge to the court's ruling. When

the trial court fails to file findings of fact, the reviewing court must view

the evidence in the light most favorable to the ruling, and assume the trial

court made implicit findings of fact that support its ruling as long as those

findings are supported by the record. Ross, 32 S.W3d at 856. It is

17
difficult to ascertain the focus of the claimed error when there is no

reasoning reflected for the court's decision. As noted in State v. Cullen,

195 S.W.3d 696, 698 (Tex. Crim. App. 2006), a failure to enter findings of

fact when timely requested "leaves appellate courts with nothing to

review except a one-word ruling and forces the courts of appeals to make

assumptions about the trial court's ruling. The ruling could be based on

a mistake of law, on the trial court's disbelief of the testimony presented,

or even on a clerical error." Thus, without findings fact and conclusions

of law, Appellant's ability to appeal the error is limited.

Since counsel's failure to request the findings offact and conclusions

of law affected his ability to present a defense at trial, and continues to

hinder his ability to appeal the ruling, his representation fell below the

objective standard of professional norms and prejudiced his defense.

18
PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that the judgment be reversed and the cause remanded for a new

trial.

19

Respectfully submitted,

/s/ James Huggler

James W. Huggler, Jr.

State Bar Number 00795437

100 E. Ferguson, Suite 805

Tyler, Texas 75702

903-593-2400

903-593-3830 fax

ATTORNEY FOR APPELLANT