### NO. 01-15-00140-CR

IN THE COURT OFAPPEALS FORTHE FIRST JUDICIAL DISTRICT OF TEXAS 

### HOUSTON, TEXAS


### BRAYAN JOSUE OLIVA-ARITA, Appellant 

## v. THE STATE OF TEXAS, 

### Appellee
On Appeal from the County Court atLaw#1 Galveston County, Texas Trial Court Case No. MD-0342858
BRIEF FORAPPELLANT Salvador Faus 

### Torres and 

### Faus LawFilin 1009 

### 44th Street Galveston, Texas 77550 ( 409) 763-2978 

### ( 409) 763-3424 (fax) 

### salfaus@gma.il.com SBN: 

### 00785854 U1-1b-UU140-.r.; FIRST COURT OF APPE, HOUSTON, TEX 3/11/2015 4:10:51 F CHRISTOPHER PF CLEF



### ATtORNEYFOR

### APPELLANTSTATEMENTREGARDING ORALARGUMENT The Appellant waives oral argument.



### IDENTITY OF PARTIES 

### AND COUNSEL Parties and counsel 

### in this case are as follows: I. BRAY ANJOSUE OLIV A-ARITA, appellant, represented attrial by Salvador Faus, 1009 44th Street, Galveston, Texas 77550 and represented on appeal by SalvadorFaus, I009 44th Street, Galveston, Texas 77550.

2. The State of Texas, appellee, represented at 

### trial by Lindsay Ricbatds1 Assistant District Attorney, and on appeal by Rebecca Klaren, Criminal District Attorney for Galveston County, Texas, 600 59th Street, Galveston, Texas 77551.

i

### CITATIONTO THE RECORD

Clerk'sRecord
..........................................C.R. (page)
Reporter's Record
..........................................R.R. (page)

ii

### TABLE OF CONTENTS



### Index ofAuthorities
........................................................................ .. iv-v S1:a.tement ofthe**Case······························~···········~········.................** 

### 1 Issues Presented. ...........•...........•......•...................•...•...•..•.........•......-. 1-2 St:a.tement

### ofFaru ·····························-:···················..·······................ 2-4 

### Summary ofArgument for Issue Number One.......................... 5 

### Argument in Support ofAppellant's Issue NumberOne................... 5-7 Summary 

### ofArgument for Issue NumberTwo.......................... 7 Argument in 

### Support ofAppellant's Issue NumberTwo................ 8-11 Conclusion and Pra.yer
................................................................... 11 

### Certificate ofService········:·················································-:··········· 14

iii

### INDEX OF AUTHORITIES CASES 

### Contraras v. State, 

### 309 S.

### W.3d 168 (Tex.App.- Amarillo 2010, pet. ref'd).....•........................... Crawfordv.d§tate, 

### 355 S.W.3d 193 (Tex.App.-Houston 

### [1st Dist.] 2011, pet. 

### ref'd)
........................... 

### Davis v. State, 947 S.W.2d 240,287 (Tex.Crim.App. 2008)
...... 

### Fordv. State, 158 

### S.W.3d 488,492 (Tex. Crim. App. 2005)
............. 

### Gonzalez-Gilando v. State, 306 S.W.3d 893 

### (Tex.App.-Amarillo 2010, 

### pet. ref'd)
.................................... 

### Johnson y. 

### State, 2012 

### WL 698894(Tex. 

### App.Houston [t4tl:t Dist.] 

### PAGE

6, 10



### 9 

### 5 8
6, 10

Nos. 14-10-00941-CR, 14-10-00942-CR, 

### March 6, 2012) 

### (Unpublished)... 6 Klare v. State, 76 S.W.3d 68, 72 (Tex.App.Houston [141h Dist.] 

### 2002,

### pet:. ·ref

### d) •.••I I I 1 I I. I I I I I I I I- • • • • •.• I • • • I I It I I I I II I I I I I I. I I • • • • • • • 'I I I I I 

# s State y, 

### Sheppard, 271 S.W.3d 281,287 (Tex.Crim.App. 2008)...... 

### 5 Short v. 

### State, 

### 2011 WL 3505611 (Tex. App.Beaumont 

### No. 09-10-00489-CR, August 

### l0, 20 1J ) 

### (Unpublished).
.. . . . . . . . . . . . . . . .**8~** 

### 9 

### State 

### v. Daniel, 446 S.W.3d 809 (Tex.App.-San Antonio 2014, 

### no pet.).............................................

### !l............................. 10 ivCASES 

### Tellez v. State, 2011 

### WL 3925627 (Tex. App. Beaumont No. 09-10•00348-CR, August 24, 2011) (Unpublished)
..................... STATUTES Texas Transportation Code Section 601.053 (a) (1-7)
.................. TEX. TRANSP. CODE ANN. §601.061 (Vernon 1999)
................... CONSTITUTIONS Fourth Amendment- United States Constitution
........................ Article l §9 ofthe Texas Constitution
.......................................

v PAGE

9



### 3 6

2 

### 2NO. 01·15·0014()-CR 

### TO THEHONORABLE COURTOFAPPEALS: CO:MES NOW, BRAY AN JOSUE OLIVA-ARITA, hereinafter referred to as "Appellant,'' and submits this brief

### pursuant to the provisions ofthe Texas Rules of APPella:te Procedure and wouldrespectfully show as follows:



### STATEMENT OFTHE CASE Appellant was charged by information and complaint 

### with the offense of Driving While Intoxicated (C.R. 7, 8) 

### On December29, 2014, a hearing ona motionto suppress washeld which was denied. (R..R. 1 ,39). On January 2, 2015, Appellant pleaded Nolo Contendere 

### to the charge and a plea bargain was reached where appellanfs punishment was assessed at three (3) days CountyJail and a $500.00 fine. (C.R., 53-54). Thetrial court certified Appellant's 

### rightto appeal the denial ofthemotionto suppress. (C.R. 52).



### ISSUES PRESENTED The trial court abused its discretion in denying appellant's motion to suppress the evidence

## as follows:

11) The State ofTexas failed to prove that the insurance database is a reliable informantinprovidingpolice officers 

### with information regarding whethera vehicle has insurance; and 2) A notice of "unconfmned" insurance, with no other specific information, is insufficient to establish reasonable suspicion or probable cause for search and seizure under the 4th Amendment of the United States Constitution and Article 

### 1 §9 of the Texas Constitution.

### STATEMENT OFFACTS Appellant was charged by infonnation and complaint for the offense of Driving While Intoxicated alleged 

### to have been committed on February 16, 2014 (C.R., 2, 3). Appellant filed a Motion to Suppress 

### any and all evidence of intoxication based on the illegality of the initial traffic stop for unconfirmed insurance. The State ofTexas stipulated that this case involves 

### a warrantless arrest. (R.R. 5). Therefore, the burden is on the State to prove a legal basis for the stop of Appellant. Officer Jose Lobo, with the Friendswood Police Department, was on patrol on the night 

### ofFebruary 16. 2014 when he 

### performed a routine 

### license plate check on a silver two-door Honda. (R.R. 7) 

### Officer Lobo testified that the license plate 

### check showed Appellant's 

### vehicle to have 

### unconfmned insuta:nce. (R.R. 8, 

### 13)
2Officer Lobo testified that this "typically" means that the vehicle has no insurance. (R.R.**8)~** Officer Lobo testified that the appellant advised that he had no insurance because he recently purchased the vehicle (R.R. 11, 12, 13). At that point, Officer Lobo conducted a Driving While Intoxicated investigation (R.R 13). The DWI investigation culminated 

### in Appellant's arrest forDriving While Intoxicated. Officer Lobo testified that he does not know who administers the insurance database. (RR. 14, 15) He does notknow for what legislative purpose the insurance database was established. (RR. 15) Officer Lobo does not know the rate offalse positive information the insurance database generates; wherein the database relays information to a patro] officer that the subject vehicle has unconfirmed 

### insurance, when in fact the vehicle is insured. (R.R. 16) Officer Lobo acknowledged that the inso.rance database is not always accurate. (R.R. 20) Officer Lobo estimatedfrom 

### his personal experience that the database revealing unconfirmed insurance was correct around 75 percent ofthetime. (R.R. 16, 17) OfficerLobo testified he is not 

### aware how long it takes the database to update
a recent purchase ofinsurance. (R.R. 17, 22) Officer Lobo testified that he was not 

### aware ofthe legal alternative 

### means of

### obtaining motor vehicle 

### insurance pursuantto Texas Transportation Code Section 601.053 (a) (1-7), such as 

### a surety bond 

### certificate, certificate of

### deposit with 

### the comptro11er, certificate 

### ofdeposit with the
3appropriate county judge, or a certificate of self-insurance. 

### (R.R. 18-20) Officer Lobotestifiedhe does notknowifthese alternative means ofestablishingmotor vehicle insurance are input into the insurance database. (R.R. 19) Officer Lobo testified that the when he checks a vehicle for insurance he receives one ofthree responses: I. Confirmed; 2. Unconfinned with accompanying information such aswhen the insurance expired, who was the insuranceprovider, and whether 

### ithas been expired more than 45 days; or

### 3. Unconfirmed. (R.R. 21, 22) After hearing the evidence and argument the trial court denied**Appellant~**s Motionto 

### Suppress.

4

### SUMMARY OF**AR~UMENT** 

### FORISSUE NUMBERONE I. THE TRIAL COURT ABUSED ITS DISCRETION 

### IN DENYING APPELLANT'S MOTIONTO SUPPRESS THEEVIDENCE. 

### Appellant pleaded nolo contendere to Driving While Intoxicated. Thejudge assessed appellant's punishment at assessed at three (3) days County Jail and a $500.00 

### fine. (C.R., 53-54) 

### The trial court erred in 

### denying appellant's motion to suppress the initial traffic stop ofthe appellant onthebasis ofunconfirmed insurance because there 

### is no proof ofthe operating history 

### and reliability ofthe insurance database. ARGUMENTIN SUPPORT OFAPPELLANT'S ISSUE NUMBER**ON~** 

### Law enforcement personnel may briefly detain and investigate a person whey they have a reasonable suspicion that the person in involved in crimina] activity. 

### State v. Sheppard, 271 S.W.3d 281, 287 (Tex.Crim.App. 2008). The officer must be able to point to something that would 1ead a reasonable person to believe that the person, being detained was engaged in, had engaged in, or was about 

### to engage in 

### a criminal act. 

### Klare v. State, 16 S.W.3d 68, 

### 72 (Tex.App.Houston [14th 

### Dist.] 2002, 

### pet. rerd). 

### Those articulable facts must amount to more than a mete hunch or 

### suspicion. /)gvis v._State, 947 S.W.2d 240, 287 (Tex.Crim.App. 2008).
5

### In the instant case, Officer Lobo stopped Appellant's vehicle on the basis that a check of his license plate through the insurance database came back 

### unconfirmed. Drivers are required to maintain proofoffinancial responsibility to lawfully drive on public roads. See TEX. TRANSP. CODE ANN. §60l.061 (Vernon 1999). Ofc. Lobo, based solely on his personal experience, testified that the insurance database is correct around 75% 

### ofthe time. (R.R. 16, 17) 

### Therefore, based on Officer Lobo's personal experience the database is incorrect around 

### 25% ofthe time. Officer Lobo's testimony reveals he 

### knows very little ofthe inner workings ofthe insurance database. 

### In the case ofJohnson 

### v: State, 

### 2012 WL 

### 698894(Tex. App.Houston [14th Dist.] Nos. 14-10-00941-CR, 14-10-00942-CR, March 6, 

### 2012) (Unpublished), although decided on other grounds; reveals another instance where a police officer received a false positive on infonnation regarding unconfirmed insurance. The State did 

### not present any evidence developing the source of the information comprising the database, illustrating the accuracy of the**databa~e,** 

### establishing the timeliness ofthe information within the database, 

### depicting how often those using the database were told that insurance was unconfmned, 

## or proving that the 

### program through 

### which the database was accessed 

### was even operating at the time. Ganzafez
..

### Gilando v. State, 

### 306 S.W.3d 893 (Tex.App.-Amarillo 2010, pet. 

### ref'd). Otherthan Officer Lobo's anecdotal evidence, the State did not present any evidence demonstrating the reasonableness ofpolice reliance
on the information in the insurance database, also known 

### as the Financial Responsibility Verification Program. 

### Contraras v. State, 309 S.W.3d 168 (Tex.App.- Amarillo 2010, pet. refd). Without the State presenting evidence that the insurance database is credible and reliable, the insurance database is the equivalent ofan anonymous informant, which, without corroborating information, cannot be the sole basis of 

### an investigative detention. Therefore, the trial court abused 

### its' discretion in denying appellant's motion to suppress. SUMMARY

### OFARGIJN(ENT

### FORISSVE NUMBER

### TWO 2. THE 1RIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTIONTO SUPPRESS THEEVIDENCE. Thetrial court erred in denying appellant's motion to suppressthe initial 

### traffic stop of the appellant on the basis of a response from the insurance database of "unconfirmed" insurance, without 

### any accompanying corroborating information. This response does not provide sufficient specific, articulable facts to suppon reasonable suspicion orprobable cause for an investigative detention.

7

### ARGUMENT IN SUPPORT OF APPELLANT'SISSUE NUMBERTWO A response of ''unconfirtned" insurance alone is not sufficient to create reasonable suspicion tojustify the investigative detention ofAppellant. A police officer conducts a lawful temporary detention when he has reasonable suspicion to believe that 

## an individual is violating the law. 

### Fordv. State, I

### 58 S.W.3d 488, 492 (Tex. 

### Crim. App. 2005). It is uncontroverted that Officer Lobo based his stop of Appellant's vehicle upon a response ofunconfirmed insurance from 

### the insurance database. Officer Lobo's testimony reveals that he receives three possible responses when checking a vehicle for insurance: 1. Confinned; 2. Unconfirmed 

### with accompanying information such as when the insurance expired, who was the insurance provider, and whether 

### it has been expired more 

### than 45 days; or 3. Unconfirmed. (R.R. 21, 22) Similarly, in 

### Short v. State, 20I I WL 3505611 (Tex. App. Beaumont No. 09-10-00489-CR, August 10, 2011) (Unpublished), the officer in that case testified that these three responses are common 

### from the insurance database. In contrast to this case, the arresting officer in the 

### Short case, received information that 

### Mr. Short was driving a vehicle 

### that showed 

### insura.rtce coverage was ''unconfirmed 

### for 45 

### days or

### more and**expired.·~** 

### IQ. The arresting officer further 

### testified that a report of 

### unconfittned with no information listed
8"typicallymean_s that DepartmentofInsurance is unable to confirm one way orthe other, 

### and they don't have any information to support that finding." Id. 

### The arresting officer in 

### Short further testified that he does not stop a vehicle whose return states unconfirmed 

### with no information listed. Similarly, 

### in Crawford y. 

### State, 355 S.W.3d 193 (Tex.App.-Houston [lstDist.] 2011, 

### pet. ref'd), 

### this Court of Appeals found that when the respon_se from the insurance database yields specific information, such as the last insurance company, the policy number, and that the policy had expired more 

### than 45 days before, that this is sufficient, specific, articulable information to justify reasonable suspicion and a subsequent investigative detention. Id at 197, 198. Lastly, 

### Tellez v. 

### State, 2011 WL 3925627 (Tex. App. Beaumont No. 09-10-00348-CR, August 24, 2011) (Unpublished) also supports a stop when a check of a vehicle through the insurance database reveals unconfmned insurance with accompanying information to show that 

### the insurance
was expired. In contrast, to 

### the specific articulable information seen in the 

### Short, Crawford, and 

### Tellez cases, in this case, the only evidence OfficerLobo received is that the insurance was unconfirmed on Appellant's vehicle, with no accompanying information. A response of unconfirmed insurance, 

### with nothing more, is not sufficiently specific, articulable information to support reasonable suspicion to
9justify an investigative detention. In 

### State v. Daniel, 446 S.W.3d 809 (Tex.App.-San Antonio 2014, no pet.), the sole basis ofthe stop was based on a database response that the insurance was unconfirmed. Id at 814. The San Antonio appellate Court in

### State 

### v. Daniel found that this response alone is not sufficiently detailed and reliable evidence to support reasonable suspicion. Id at 815. Similarly, a response from the insurance database that the information regarding a vehicle's insurance is "not available" or the status was "undocumented" is not sufficient to prove that the stop was based on either reasonable suspicion or probable cause.**Gonzalez~Gikmdo** 

### v. State, 306 S.W.3d 893 (Tex.App.-Amarillo 2010, pet. rerd); 

### Contraras v. $_tate, 309 S.W.3d 168 (Tex.App.- Amarillo 2010, pet. ref'd). The distinction in the case law precedent is very clear: A response from the insurance database of unconfirmed accompanied with specific information corroborating the response, supports reasonable suspicion. A response from the insurance database ofunconfirmed with nothing more, as in the case at hand, is not enough to support reasonable suspicion orprobable causeto stop and detain. A response from the insurance database that insurance on a vehicle is "unconfirmed,n 

### with no 

### other accompanying information is not sufficiently 10**----'-------'~** -- -**~-** ---**-~-** 

### --- -----**---~** 

### -------**-------~**detailed andreliable evidence 

### to supportreasonable .suspicion. After all, every citizen in the United States is walking around unconfirmed, that we may or may nothave an arrest warrant, until the government stopsyoutoconfll111 your identity. Tojustify the intrusion ofthe State upon an individual's liberty solely onthe basis ofa vague, nebulous response from an unproven computerdatabase is

### to venture into a dangerous world. The trial Court abused its' discretion 

### in denying appellant's motion to suppress by fmding that a response of "unconfirmed" insurance a1one, with no specific infonnation accompanying the response, is sufficient articulable and specific facts tojustify reasonable suspicion to stop and detain. CONCLUSION

### AND PRAYER WHEREFORE PREMISES CONSIDERED, Appellant respectfully asks that thejudgmentofthe trial courtbereversed and that ajudgmentofacquittal be entered and for suchother andfurther reliefto which Appellant maybe

### justlyentitled.

11

# ~~? SALVADORFAUS 

### TORRES and FAUS LAW FIRM 1009 44thStreet Galveston, Texas 77550 (409)763-2978 (409) 763-3424 (fax) salfaus@gmail.com SBN: 00785854 

### Attorney for Appellant CERTiFICATE OF COMPLIANCE I certifY that the foregoing brief was prepared in Microsoft Word using 14 pointfont for text, andthatthebriefcontains 2,064 words.

# ~~~ SalvadorFall!) 

### CERTiFICATE OF SERYICE I hereby certify that a true and correct copy of

### Brieffor Appellant was handdelivered to Ms. Rebecca Klaren, Assistant District Attorney ofGalveston County, Texas, 600 591h Street, Galveston, Texas 77551 and hand-delivered and/or mailed to Appellant in compliance with the Texas Rules of Appellate Procedure on this the 

### 11th day of March, 2015.



### SalvadorFaus
12