# 651-15

NO.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS
Joseph Michael Pierce, Appellant/Petitioner;

vs. 

# ORIGINAL

RECEIVED IN COURTOFCRIMINALAPPEALS 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 OFCRIMINALAPPEALS 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 ArgumentLIST 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 iiTABLE 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 iiiINDEX 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 ivNo.

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 1suppress 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 2REASONS 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 3REASON 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 42 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 5the 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 :':\.:: first repassed 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 6Frazier 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 7In 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 8that 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 9REASON 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 10on 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, coupledwith 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 11reasonable 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 12explaining 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 13CERTIFICATE 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 14APPENDIX A: COURT OF APPEALS OPINION

Appellant's Petition for Discretionary Review - Page 15COURT 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, andthe same being considered, itis the opinion ofthis courtthatthere was no errorinthe 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 OFAPPEALS TWELFTH COURT OF APPEALS DISTRICT 

### TYLER, TEXAS
JOSEPHMICHAEL PIERCE, § APPEAL FROM THE 114TH APPELLANT V. § JUDICIAL DISTRICTCOURT THE STA TE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION Joseph Michael Pierce appeals his conviction for possession ofmore 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 StateTrooper 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 thencalled 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 byindictment with possession offour hundred grams ormore of methamphetamine. Hefiled amotion to suppress theevidence, challenging theinitial 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 ajury trial. The trial court submitted ajury instruction under Texas Code ofCriminal Procedure Article 38.23 

### regardingreasonable suspicionforthe initial stop. Thejuryfound Appellant"guilty" as charged .and-assessedhis punishment at imprisonmentfor seventy years and afine of$250,000.00. This appeal followed.

Motion to Suppress 

### In his first issue, Appellant argues thatthe trial courterred in denying his pretrial motion 

### to suppress. Although he challenged both the initial stop and his extended detention inthe trial court,hechallenges onlytheinitial stop onappeal. Standard of Review 

### We review atrial court's ruling on amotion to suppress under abifurcated standard of 

### review. Hubertv. 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 decisionto grant or deny amotion to 

## suppress is generally reviewed under an abuse ofdiscretion standard. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to atrial 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 amotionto suppress evidence, atrial court is the exclusive trieroffact andjudgeofthewitnesses' credibility. Maxwellv. State, 73 S.W.3d278, 281 (Tex. Crim. App. 

## 2002). Accordingly, atrial court may choose to believe or disbelieve all or any part ofa witness'stestimony. SeeState v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When atrial court does not make express findings offact, we view the evidence in the 

## lightmostfavorabletothetrialcourt'srulingandassumethetrialcourtmade implicitfindings of factthatsupportits ruling as longas those findings are supportedbythe record. Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011). Therefore, the prevailingparty is entitledto "the 

## strongestlegitimateviewofthe evidence and all reasonable inferencesthatmaybe drawnfrom 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 upholdthe ruling on amotionto suppress ifthatruling is supported by the record

# and is correct under any theory oflaw applicable to the case. SeeRoss, 32 S.W.3d at 856; 

# Carmouche, 10S.W.3dat327;Statev.Ballard,987S.W.2d889,891 (Tex. Crim.App. 1999). Governing Law 

## A routine traffic stop closely resembles an investigative detention. Powellv. State, 5 

# S.W.3d369, 375 (Tex. App.-Texarkana 1999,pet. refd); seealso UnitedStates v. Brigham, 382F.3d500,506(5thCir. 2004). Becauseaninvestigativedetentionisaseizurethatimplicates the United States and Texas Constitutions, the traffic stop mustbe reasonable. U.S. CONST, 

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

# 1996) Todeterminethereasonablenessofaninvestigativedetention,weconducttheinquiryset 

# forth by the United States Supreme Court in Terry v. Ohio and determine (1) whetherthe officer'sactionwasjustifiedatitsincept.onand(2)whetheritwasreasonablyrelatedinscopeto 

# thecircumstancesthat'initiallyjustifiedtheinterference. See Terry v. Ohio, 392U.S. 1, 19-20, 88 S. Ct. 1868, 1879,20L. Ed. 2d889(1968);Davisv.State, 947S.W.2d240,242(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 suspicionthatsome activityoutoftheordinary is occurringorhas occurred. Id at 

# 244(citingGarza v. State, 771 S.W.2d549,558 (Tex. Crim. App. 1989)). A lawenforcement officermaystopandbrieflydetaina personforinvestigativepurposesonlessinformationthanis constitutionallyrequiredforprobablecausetoarrest. Fosterv. State, 326S.W.3d609,613 (Tex. 

# Crim. App. 2010) (citing Terry, 392U.S. 1, 88 S. Ct. 1868,20L. Ed. 2d889). Anofficerhas reasonable suspicionto detain aperson ifhehas specific, articulablefacts that, combinedwith rational inferences from those facts, would lead him reasonably to conclude that the person 

## detainedis, has been, orsoonwill be engaged in criminal activity. State v. Elias, 339 S.W.3d 667,674(Tex. Com. App. 2011). Thisisanobjectivestandard. Id Thus,whenanofficerhasa reasonable basis for suspectingthatapersonhas committedanoffense, the officermay legally 

## initiate an investigative stop. SeePowell, 5S.W.3dat376 (citingDrago v. State, 553 S.W.2d 375, 377-78 (Tex. Crim. App. 1977)). 

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

# necessarytoeffectthepurposeofthestop." Kothev.State, 152S.W.3d54,63 (Tex. Crim.App. 2004). The issue is "whetherthe police diligently pursued ameans ofinvestigation thatwas

# Italytoconfirmordispeltheirsuspic.onsquickly,durmgwhichtimeitwasnecessarytodeta,n thedefendant.- Ua.64-65(quotingUntiedSta.esv.Step*.470U.S.675,685-86, 105S.Ct. 1568 1569 84 L.Ed.ld605 (1985)) Withregardto atraffic stop, anofficercan conducta 

# ,^1 an/warrantscheck. Ma,63. Anofficeralsomayaskmedriver,0exittheveh.cle See Straussv.Stale, 121 S.W.3d486,491 (Tex.App.-Amarillo2003,pet.refd). Analysis
. 

# Appellant argues that the evidence found afterthe imt.al stop shouldbe suppressed becauseTrooperFrazrer'stestimonyregardmgthatmstaneewasbasedsolelyonhismemoryand 

# hisreport whrchwaswnftenfive daysaftertheeven,. Appellantnotesthatthefirs, alleged mstaneeofAppellantdnvmgontheunprovedshoulderwasnotrecordedbyTrooperFrazrers v.deocamera. Hefurthernotesthatthevrdeorecordingonlyshowsthevehicle'stiresontheIme and notonthe improved shoulder itself. 

# Underthetransportationcode,a drivermaydriveonanimprovedshoulderonlyifhecan 

# dososafelyandasnecessaryforoneofsevenenumeratedpurposes. SeeTex.Transp. Code 

# ANN §545058(a) (West2011). Atthe suppressionhearing, TrooperFraziertestifiedthathe 

# wasparked sideways, ornorthbound, atthe scalehouseoneastboundInterstate20 m Smith CountywhenhefirstsawAppellant'svehicle. HetestifiedthathesawAppellant'svehiclecross overthewhitelineontherightsidethatdividestheinterstatefromtheshoulder. 

# TrooperFrazierstatedthatAppellant'svehiclecrossedthelinebya distanceofabouthalf the width ofthe vehicle. The video does not showthis actionbecause ofthe directionthe 

# 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 ontop ofthe white line." 

## Thevideoshowsthevehicleveryfarrightinthelane,butdoesnotclearlyshowthetires

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

# askingAppellantifhehad hadanythingto drink. TrooperFraziertestifiedthathe askedthat questionbecausethevehiclehad"crossedovertheshoulderseveraltimesBasedonourreviewoftherecord,weconcludethattherecord supportsthetrialcourt's 

# impliedfindingthatTrooperFraziersawAppellantdrivingontheimprovedshoulder. Thetrial court'sdeterminationofthishistoricalfactturnedonTrooperFrazier'scredibilityanddemeanor.

### Thetrial courtwas the exclusive trier of fact andjudge of the witness's credibility. Maxwell, 73 

### S.W.3dat281. Accordingly, thetrial courtwas free to chooseto believe ordisbelieve all orany 

## partofhis testimony. SeeRoss, 32 S.W.3dat855. Therefore, we givealmosttotal deferenceto the trial court's determination ofthat 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 

## denyingAppellant'smotionto suppress. Accordingly, weoverruleAppellant's firstissue.
Ineffective Assistance ofCounsel 

### In his second issue, Appellantcontendsthathe received ineffective assistance ofcounsel and asks this court to grant a new trial. Standard ofReview and Applicable Law 

### In reviewing an ineffective assistance ofcounsel claim, we follow the United States 

## SupremeCourt'stwo-prongedtestinStricklandv. 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). Underthe first prong ofthe Stricklandtest, an appellant must show that counsel's performance was "deficient." Strickland, 466 U.S. at 687, 104 S. Ct. at2064; Tong v. State, 25 S.W.3d707, 

## 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 at712. 

### 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 standardforjudging prejudicerequires an appellantto "showthatthereis a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at694, 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 ofatrial 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 ofaclaim ofineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). 

### Failure to make the required showing ofeither deficient performance or sufficient 

### prejudicedefeats the ineffectiveness claim. Thompson, 9S.W.3dat 813. Appellantmustprove 

### bothprongs oftheStricklandtestby apreponderance ofthe evidence inordertoprevail. Tong, 25S.W.3dat712. Analysis 

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

### findings offact and conclusions oflaw 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 

## performedaverythorough cross examinationofTrooperFrazier, andAppellantdoes notexplain howthe trial court's findings offact and conclusions oflawmighthave changed it. 

### Appellantfurthercontendsthatwithoutfindings of fact andconclusions of law, appellate counsel is unable to adequately challenge the suppression ruling on appeal. However, 

### Appellant's burden is to "show that there is areasonable probability that, but for counsel's 

### unprofessional errors, the result ofthe proceeding would have been different." See Strickland, 466 U.S. at 694, 104 S. Ct. at2068; Tong, 25 S.W.3d at712. Appellant has not shown any 

### reasonable probability that arequest for findings offact and conclusions oflaw would have changedtheoutcome of his trial. Seeid 

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

### requesting findings of fact and conclusions oflaw. Therefore, we concludethatthe 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. PanelconsistedofWorthen, C.J., Hoyle, 1, andNeeley, J.

(DONOTPUBLISH)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 APPELLANTIDENTITY 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 ofTexas 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 ofReview 11 

### C. Application 12 D. Harm Analysis 14 ISSUE TWO, RESTATED 15
iiiA. Facts 15 B. Standard ofReview 16 C. Application 17 PRAYER 19 CERTIFICATE OF SERVICE 20 CERTIFICATE OF COMPLIANCE 20

IVTABLE 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) 14NO. 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 ofrecord, JAMES HUGGLER, and pursuantto the provisions of TEX. R. App. Proc. 38, et seq., respectfully submits this briefon appeal

STATEMENT OF THE CASE 

### Appellant was indicted in Cause No. 114-0648-13 for the felony offense ofpossession with intentto deliver methamphetamine, more than 

### 400 grams. I CRl; see Tex. Health &Safety Code Ann. § 481.112(a), (f) (West 2013). At trial on February 25, 2014, Appellant entered a plea 

### ofnot guilty to the charged offense. IX RR 8. Thejury found Appellant guilty of the offense of possession with intent to deliver a controlled
1substance, 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 &SafetyCodeAnn. § 481.112 (f) (West 2013)(penalty range). Notice ofappealwas timelyfiled by appellate counselon 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 OFAPPELLANT'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 ofthe road at a scale house, with his 

### vehicle facing north, when he observed a vehicle cross the white line onto the shoulder ofthe 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. Afterhe 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 ofthe 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 ofthe 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 1Section545.058(a) of the TransportationCode, entitled "Drivingon ImprovedShoulder," provides that an operator may drive on an improved shoulderto the right ofthe main traveled portion ofa 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, MarlenaAdams, providedthe insurance. V RR 27-28. During the stop, he tookAppellant back to his police vehicle. V RR 31. He stated 

### that he noticed that Appellant and Adams both had a lot ofsores, 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 askedifAppellanthad anythingillegalinhis 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 ofthe 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 traveledportion 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. CodeAnn. § 545.058(a).

### "alerted" at the passenger compartment ofthe car. V RR 46-47. Frazier and another officer, Kris Baker, searched the vehicle and found one and


### a halfpounds ofmethamphetamine 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 ofthe 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. 

### Appellantre-urgedthe objectionshe had made atthe suppressionhearing, and the objections were overruled. IX RR 45; 58-59. On cross 

### examination, defense counselrevisited the issue ofwhetherdriving 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 6the 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 overthe 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 thebasis thatthe evidence raised a question offactregarding the legality ofthe stop. XI RR 243. Appellantwas subsequently convicted ofthe 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 ofcrossing the line was not recordedby 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 cameraonlyreflectedthatAppellant 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 oflaw from the suppression hearing. The evidence presented during the suppression suggested that the initial stop was illegal, thus 

### bringing into question the legality ofthe subsequent search. However, it is impossible to review the specificreasoning for the trial court's ruling on 

### the motion with findings of fact and conclusions of law. Consequently,
8trial 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. 

### Appellantfirst asserts thatthetrial courtcommittedreversible 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 

### Priorto 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 ofthe road. V RR 23. Because his vehicle was facing northward, the alleged action was 9not recorded on Frazier's vehicle recorder. V RR 25. Frazier then followed the vehicle. He stated that he saw Appellant drive "on top ofthe white 

### line," whichhe believed was driving onthe improved shoulder; attrial, 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. Atthe 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.

10B. Standard of Review 

### An appellate court reviews the denial ofa motion to suppress under


### a bifurcated standard of review, giving deference to the trial court's findings ofhistorical fact supported by the record and reviewing de novo the trial court's application ofsearch and seizurelaw. 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 ofproving the reasonableness ofthe 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 musthave "reasonable suspicion" that anindividualis violatingthe 

### law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Whetherornot an officerhas reasonable suspicionis evaluatedfrom
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 [14thDist.] 2000, pet. refd). In otherwords, looking atthe facts available to the officer at the moment ofthe 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 

### Atthe suppressionhearing, the onlyjustificationofferedfor stopping Appellant was Frazier's unverified beliefthat 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 raisingobjections 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 thejury 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). 12a 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 allegedincident was shown onthe video andreflects 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); Goudeauv. 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 suspicionthatAppellanthadviolated section 545.058, the stop 13and ensuing search were illegal and the evidence seized as a resultthereof 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). Thereviewing courtmustreverse 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.
14ISSUE 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 requestfindings 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 ofthe Court's reasoning and was limited in the preparation ofhis cross examination ofTrooper Frazier at trial. The lack 

### offindings 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 offact or conclusions oflaw. The motion


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

### The court did not include findings offact and conclusions oflaw with its order.

15B. Standard of Review The standard of review for ineffective assistance of counsel is set 

### forth in Stricklandv. 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 mustprove, by a preponderance ofthe 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 ofthe 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 

### hada reasonable doubtrespecting 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 ofthe 

### adversarial process that the trial cannot be relied on as having produced
16a just result. Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.

C. Application 

### In the present case, the failure ofdefense counsel to requestfindings 

### offact and conclusions oflaw severely limited his ability to prepare for
cross examination ofFrazier 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 offact and conclusions of 

### law. State v. Ross, 32 S.W.3d 853, 858 (Tex. (Tex. Crim. App. 2000). Withoutthis rationale, defense counsel wouldhave beenunable to combat the court's concerns about the evidence. 

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

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

### the trial court fails to file findings offact, the reviewing court must view 

### the evidenceinthe light mostfavorable to the ruling, and assume the trial court made implicitfindings offact that supportits ruling as long as those 

### findings are supported by the record. Ross, 32 S.W3d at 856. It is
17difficult 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 ofappeals to make assumptions about the trial court's ruling. The ruling could be based on
a mistake oflaw, on the trial court's disbeliefofthe testimony presented,


### or even on a clerical error." Thus, without findings fact and conclusions oflaw, Appellant's ability to appeal the error is limited. Since counsel's failure to request the findings offact and conclusions oflaw 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 ofprofessional norms and prejudiced his defense.

18PRAYER 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