NO. 03- 15 -00065- CR

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT

AUSTIN, TEXAS

__________________________________________________________________

ELIZABETH ANN BLACK, APPELLANT

VS. THE STATE OF TEXAS, APPELLEE

__________________________________________________________________ ON APPEAL FROM COUNTY COURT- AT -LAW NUMBER FIVE TRAVIS COUNTY, TEXAS CAUSE NO. C1- CR

- 13 -217530

__________________________________________________________________ APPELLANT ’S BRIEF

__________________________________________________________________ MERIL “GENE” ANTHES, JR. State Bar No. 24040125 Gene@GBAfirm.Com CHRISTOPHER M. GUNTER State Bar No. 08624600 Chris@GBAfirm.Com G UNTER , B ENNETT & A NTHES , P.C. 600 West Ninth Street Austin, Texas 78701-2212 (512) 476-2494 (512) 476-2497 Facsimile Attorneys for Appellant

__________________________________________________________________

ORAL ARGUMENT IS REQUESTED

__________________________________________________________________ ACCEPTED 03-15-00065-CR 5648987 THIRD COURT OF APPEALS

AUSTIN, TEXAS 6/12/2015 8:20:10 AM JEFFREY D. KYLE

CLERKi IDENTITY OF PARTIES AND COUNSEL

1. Appellant: Elizabeth Ann Black
2. Appellee: The State of Texas
3. Trial counsel for Appellant: Christopher M. Gunter and Meril “Gene” Anthes, Jr. Gunter , B ennett & Anthes , P.C. 600 West Ninth Street Austin, Texas 78701
4. Trial counsel for the State: Christyne Harris Schultz Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, Texas 78767
5. Counsel on appeal for Appellant: Meril “Gene” Anthes, Jr. and Christopher M. Gunter Gunter, Bennett & Anthes, P.C. 600 West Ninth Street Austin, Texas 78701
6. Counsel on appeal for the State: Giselle Horton Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, Texas 78767
7. Trial Judge: The Honorable Nancy Hohengarten C ounty Co urt

- at

- Law No. Five Travis County, Texas Blackwell/Thurman Criminal Justice Center 509 West 11th, 4th Floor Austin, Texas 78701ii TABLE OF CONTENTS PAGE
IDENTITY OF PARTIES AND COUNSEL

................................ ......................... i
TABLE OF CONTENTS

................................ ................................ ........................ ii
INDEX OF AUTHORITIES

................................ ................................ ................... iv
STATEMENT OF THE CASE

................................ ................................ ............... 1
STATEMENT OF FACTS

................................ ................................ ..................... 2
ISSUE PRESENTED

................................ ................................ .............................. 4
SUMMARY OF THE ARGUMENT

................................ ................................ ..... 4
ARGUMENT

................................ ................................ ................................ .......... 5
I. STANDARD OF REVIEW

................................ ................................ ........ 5
II. BURDEN OF PROOF

................................ ................................ ................ 6
III. A PRIMER ON TRAFFIC CONTROL DEVICES

................................ .... 7
A. Texas MUTCD & Austin Transportation Criteria Manual

................ 7
B. Definition of Barricade

................................ ................................ ....... 8
C. Proper use of barricades.

................................ ................................ .... 9
IV. APPELLANT DID NOT COMMIT A TRAFFIC OFFENSE

..................... 10
A. Appellant did not violate § 472.022 or § 544.004 of the Texas Transportation code

................................ ........................... 10
1. Appellant did not commit the traffic offense of driving around a barricade because she did not drive “around” the barricade and the “barricade” did not meet the statutory definition of barricade

................................ ................................ ... 11iii 2. Appellant did not commit the traffic offense of fai ling to comply with a traffic

- control device because the barricades, Officer Rodriguez, and signage were not in the proper position

................................ ................................ .... 1 4
V. CONCLUSION

................................ ................................ .......................... 20
PRAYER

................................ ................................ ................................ ................. 21
CERTIFICATE OF COMPLIANCE

................................ ................................ ...... 22
CERTIFICATE OF SERVICE

................................ ................................ ............... 22iv INDEX OF AUTHORITIES
CASES PAGE
Castro v. State , 227 S.W.3d 737 (Tex. Crim. App. 2007)

......................... 6
Davis v. State , 947 S.W.2d 240 (Tex. Crim. App. 1997)

.......................... 6
Ford v. State , 158 S.W.3d 488 (Tex. Crim. App. 2005)

............................ 6
Guzman v. State , 955 S.W.2d 85 (Tex. Crim. App. 1997)

........................ 5
Issac v. State , 982 S.W.2d 96 (Tex. App. 1998) aff'd, 989 S.W.2d 754 (Tex. Crim. App. 1999)

................................ ............. 2
Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967))

................................ ................................ ......... 6
Maxwell v. State , 73 S.W.3d 278 (Tex. Crim. App. 2002)

....................... 5
Oles v. State , 993 S.W.2d 103 (Tex. Crim. App. 1999)

............................ 5
State v. Chacon , 273 S.W.3d 375 (Tex. App.

— San Antonio 2008, no pet.)

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

................................ ................................ 6
United States v. Alvarado

- Zarza , 782 F.3d 246 (5th Cir. 2015)

............... 6
Viveros v. State , 828 S.W.2d 2 (Tex. Crim. App. 19 92)

........................... 6
CONSTITUTIONS & STATUTES
U.S. C ONST

. amend. IV

................................ ................................ .............. 6
U.S. C ONST

. amend. XIV

................................ ................................ ........... 6
T EX

. C ONST

. art. I § 9

................................ ................................ ................. 6
T EX

. C ONST

. art. I § 10

................................ ................................ ............... 6v

CONSTITUTIONS & STATUTES PAGE
T EX

. C ODE C RIM

. P RO . art. 38.23

................................ ............................... 6
T EX

. R. O F E VID

. 201

................................ ................................ .................. 2
T EX

. G OV ’ T C ODE § 311.011

................................ ................................ ...... 11
T EX

. T RANSP

. C ODE § 427.022

................................ ................................ ... passim
T EX

. T RANSP

. C ODE § 471.004

................................ ................................ ... 1 4
T EX

. T RANSP

. C ODE § 544.001

................................ ................................ ... 7, 15, 19
T EX

. T RANSP

. C ODE § 544.004

................................ ................................ ... passim
A USTIN C ITY C ODE § 14

- 8

- 54

................................ ................................ .... 7
M anuals
Texas Manual Uniform Traffic Control Devices , 2011 ed., revision 2

..... passim1 NO. 03

- 15

- 00065

- CR

_ ________________________________________________________ __ _ ____ __ IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT

AUSTIN, TEXAS

__________________________________________________ ___ _ __ __ ________ ELIZABETH ANN BLACK, APPELLANT

VS. THE STATE OF TEXAS, APPELLEE

___________________________________________________ ___ ___ ___ ______ ON APPEAL FROM COUNTY COURT

- AT

- LAW NUMBER FIVE TRAVIS COUNTY, TEXAS CAUSE NO. C1

- CR

- 13

- 217530

__________________________________________________ ______ __________ APPELLANT’S BRIEF

_ _________________________________________________ ______ __________ TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: COMES NOW Appell ant Elizabeth Ann Black , by and through her undersigned counsel, and offers Appellant’s Brief, by which Appellant respectfully shows the Court the following:
STATEMENT OF THE CASE Appellant was charged by information with driving while intoxicated alleged
to have occurred on Oct ober 12, 2013. C.R. 6, 9

. 1 Appellant filed a motion to

1 “C.R.” refers to the Clerk’s Record and “R.R.” refers to the Court Reporter’s Record.2

suppress evidence contending the stop of her vehicle was without reasonable suspicion or probable cause and therefore illegal. C.R. 33. After a pre

- trial evidentiary hearing, Judge Hohengarten denied A ppellant’s motion to suppress
evidence on January 13, 2015 . C.R. 35

. Appellant entered a plea of no contest on January 13, 2015. C.R. 38

- 39. She preserved her right of appeal and the trial court certified her right to appeal those issues addressed at the h earing on her motion to suppress. C.R. 51. Appellant subsequently filed this appeal. C.R. 43

. STATEMENT OF FACTS At approximately 3:00 a.m. on Friday, October 11, 2013 , Appellant was traveling on the South M opac service / feeder road

. R.R. 9; C.R. 6 ; State’s Exhibit 1,
2 2 . Appellant was traveling toward downtown Austin on the South Mopac service road. To avoid confusion regarding the cardinal directions see the aerial map
attached as attachment 1. 3 Austin Police Department Officer Domingo Rodriguez

was parked in the left lane of the s ervice road behind a barricade which was also
located in the left lane near the intersection of the service road and Andrew Zilker
Road

. R.R. 8. The barricade was in place because of the Austin City Limits music
f estival. C .R. 6. Officer Rodriguez’s vehicle was parked roughly parallel to and
behind the barricade. R.R. 8; State’s Exhibit 2. Officer Rodriguez ’s overhead red

2 State’s Exhibits 1 and 2 refer to the exhibits admitted by the State during the pretrial hearing. Both exhibits are part of Volume 3 of the Reporter’s Record.

3 Issac v. State , 982 S.W.2d 96, 99

- 100 (Tex. App. 1998) aff'd , 989 S.W.2d 754 (Tex. Crim. App. 1999) (appellate court may take judicial notice of map) ; T EX

. R. OF E VID

. 201

.3

and blue lights were activated in the steady on position; that is, his lights were on but not flashing. R.R. 8, 19. 4 The roadway in question consists of two lanes of
travel in the same direction

. See R.R. 6

- 8 ; State’s Exhibit 2 ; Attachment 1

. Appellant was in the right lane of travel. State’s Exhibit 2

. Officer Rodriguez
testified that t here were no physical barricades in Appellant’s lane of travel . R.R. 9,
18 , 19 ; State’s Exhibit 2

. 5 A sign north of Officer Rodriguez’ location (behind him and past the
barricade ) was in place and read “Barton Springs Road to close through Zilker Park Friday 12 a.m. until Monday 3 a.m.” R.R. 7 , 21

- 22

. A second sign was also in place somewhere that said “northbound was shut down for thru traffic.” R.R. 7. The record is not clear where this second sign was located or what northbound roadway was shut down. Appellant drove by Officer Rodriguez at 2:59:41 according to the time

- stamp in the upper right

- hand corner of his in

- car video. See
State’s Exhibit 1 . Officer Rodriguez’s video makes it clear that there was absolutely nothing in Appellant’s lane. Af ter Appellant passed Officer Rodriguez’s position he immediately followed and stopped her using his overhead lights and
siren. R.R. 10 ; State’s Exhibit 1

. She was subsequently arrested for Driving While

4 Officer Rodriguez testified that he had his steady red and blue lights on . R.R. 19

. This is corroborated by hi s in

- car video ; it’s clear he turned his flashing red and blue lights on after Appellant’s vehicle passed hi m
. See State’s Exhibit 1 at the 02:59:55 timestamp.

5 There were no barrels, cones, barricades or any other barrier in Appellant’s lane of travel. In State’s Exhibit 2 other vehicles are seen traveling on Barto n Springs Road past the barricade as Officer Rodriguez administers the SFST’s the Appellant.4

Intoxicated. As Officer Rodriguez stopped Appellant , another officer took his place at the bar ricade. R.R. 25. Unlike Officer Rodriguez, t he backup officer used
his vehicle to block the right lane of travel. At the end of Officer Rodriguez’s video he drives back toward the barricade and the backup officer’s vehicle can clearly be seen in the proper position blocking vehicles from traveling in the right
lane. See State’s Exhibit 1. Officer Rodriguez testified and the State argued that his reason for stopping Appellant was that she disregarded a barricade. 6 R.R. 30.
ISSUE PRESENTED Did Officer Rodriguez have reasonable suspicion upon which to justify stopping Appellant’s vehicle?

SUMMARY OF THE ARGUMENT Officer Rodriguez detained Appellant for driving around a barricade in violation of § 472.022 of the Tex as Transportation Code. Though not raised by the State at the motion to suppress hearing Appellant expects the State to argue that h e may have detained her for failing to comply with a traffic control device in violation of § 544.004 of the Texas Transport ation Code. Because Appellant’s lane of travel was not blocked by a barricade , a reasonable person in Appellant’s position would feel free to continue traveling in her lane of travel. Since Appellant
did not drive “around” a barricade to continue in her la ne of travel she was not in

6 T EX

. T RANSP

. C ODE § 427.022.5

violation of § 472.022. Moreover, the “barricade” and “signs” in question do not meet the statutory definition as set out in § 472.022 , consequently she was not in violation of that statute. Though not raised by the State, it cannot be asserted that Appellant failed to comply with a traffic control device in violation of § 544.044 because the devices in question were improper. Because Appellant c ommitted no
traff ic offense , Officer Rodriguez lacked the requisite reasonable suspicion to
detain Appellant

. ARGUMENT
I. STANDARD OF REVIEW The proper standard for “reviewing a trial court’s ruling on a motion to suppress is a bifurcated standard of review, giving almos t total deference to a trial court’s determination of historical facts and reviewing de novo the court’s application of the law.” Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman v. State , 955 S.W.2d 85, 88

- 89 (Tex. Crim. App. 1997). This means that a trial court’s ruling on a motion to suppress is generally reviewed by
an abuse of discretion standard. Oles v. State , 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). However, where the facts are undisputed (as in Appellant’s case) and
the cas e presents the c ourt with a question of law the court is to apply a de novo
review. Id . (citing Guzman , 955 S.W.2d at 89). Thus, this Court is tasked with6

reviewing Judge Hohengarten ’s d ecision de novo as there is no dispute regarding
the facts

. II. BURDEN OF PROOF
The State bears the burden of proving that Officer Rodriguez had reasonable suspicion to detain Appellant

. 7 “Warrantless seizures are ‘per se unreasonable
under the Fourth Amendment

— subject only to a few specifically established and
well

- delineated exceptions.’” United States v. Alvarado

- Zarza , 782 F.3d 246, 249 (5th Cir. 2015) (quoting Katz v. United States , 38 9 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) ; Terry v. Ohio , 392 U.S. 1, 27 (1968) ; U.S. C ONST

. amend. I V
& X IV; T EX

. C ONST

. art. I §§ 9, 10; T EX

. C ODE C RIM

. P RO

. art. 38.23

. When police
conduct a warrantless seizure “the burden is on the State to show that the officer had reasonable suspicion to believe that an individual was violating the law.”
Castro v. State , 227 S.W.3d 737, 741 (Tex. Crim. App. 2007)

. “[R]easonable suspicion requires ‘that there is something out of the ordinary occurring and some indication that the unusual activity is related to a crime.’” Davis v. State , 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (quoting Viveros v. State , 828 S.W.2d 2, 4 (Tex. Cr im. App. 1992)). A reasonable

- suspicion determination should be made by cons idering the totality of the circumstances. Castro , 227 S.W.3d at 741 ; Ford
v. State , 158 S.W.3d 488, 492

- 493 (Tex. Crim. App. 2005). Ultimately , t he State

7 There is no dispute that Officer Rodriguez detained Appellant.7

must prove that Officer R odriguez had reasonable suspicion to believe A ppellant

was committing a crime.
III. A PRIMER ON TRAFFIC CONTROL DEVICES
A. Texas MUTCD & Austin Transportation Criteria Manual.
S tate and local traffic control device manuals offer guidance regarding the proper placement of barricades. T he Texas Transportation Code requires that the Texas Transportation Commission adopt a manual and specifications for a uniform system of traffic

- con trol devices. T EX

. T RANSP

. C ODE § 544.001. Attachment 2 consists of relevant excerpts from the current Texas Manual on Uniform Traffic Control Devices (“Texas MUTCD”). 8 The Austin City Code requires that if a barricade is to be used, it shall conform to th e Texas MUTCD. Austin City Code §
14

- 8

- 54. The City of Austin also promulgated a traffic control device manual called the Transportation Criteria Manual. 9 Section 8.3.0 of the City of Austin Transportation Criteria Manual also refers to the Texas MUTCD wi th regard to the placement of signs. 10

8 Texas Manual Uniform Traffic Control Devices, 2011 ed., revision 2. The full version of the Texas MUTCD can be found at: http://www.txdot.gov/ government/enforcement/signage/tmutcd.html.

9 Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria _manual?nodeId=TRCRMA_S8TRCO

.

10 Available at : https://www.municode.com/library/tx/austin/codes/transportation_criteria _manual?nodeId=TRCRMA_S8TRCO

.8

B. Definition of Barricade
. The Texas MUTCD defines a barricade as a “portable or fixed device having from one to three rails with appropriate markings and is used to control road users by closing, restricting, or delineating all or a portion of the right

- of

- way.”
Attachment 2 , pg. 9 . The manual further notes that “Barricades may be used to mark any of the following conditions: A. A roadway ends, B. A ramp or lane closed for operational purposes, or C. The permanent or semi

- permanent closure or termination of a roadway. ” Attachment 2 , pg 4

. Section 8.5.7(B)(4) of the Austin Transportation Criteria Manual defines barricades as “a portable or fixed device having from one (1) to three (3) rails with appropriate markings used to control traffic by closing, restricting or delineating all or a portion of the right of way.” 11 Most importantly, a s it pertains to the offense of failure to obey warning signs and
barricades found at section 472.022, a b arricade is defined as : an obstruction: (A) placed on or across a road, street, or highway of this state by the department, a political subdivision of this state, or a contractor or subcontractor construction or repairing the road, street, or highway under authorization of the department or a political subdivision of this state; and (B) placed to p revent the passage of motor vehicles over the road, street or highway during construction, repair, or dangerous conditions.
T EX

. T RANSP

. C ODE 472.022

.

11 Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria _manual?nodeId=TRCRMA_S8TRCO

.9

C. Proper use of barricades

. The Texas MUTCD notes that barricades may also be used as Channelizing
Devi ces: The function of channelizing devices is to warn road users of conditions created by work activities in or near the roadway and to guide road users. Channelizing devices include cones, tubular markers, vertical panels, drums, barricades, and longitudin al channelizing devices. Channelizing devices provide for smooth and gradual vehicular traffic flow from one lane to another, onto a bypass or detour, or into a narrower traveled way. They are also used to channelize vehicular traffic away from the work sp ace, pavement drop

- offs, pedestrian or shared

- use paths, or opposing directions of vehicular traffic. Attachment 2 pg . 8

. Barricades may also be used as a checkpoint or traffic control point. When used in such a manner the Texas MUTCD require s a sign at the barricade. The
manual notes that: The TRAFFIC CONTROL POINT (EM

- 3) sign (see Figure 2N

- 1) shall be used to designate a location where an official traffic control point has been set up to impose such controls as are necessary to limit congestion, exped ite emergency traffic, exclude unauthorized vehicles, or protect the public. The sign shall be installed in the same manner as the AREA CLOSED sign (see Section 2N.04), and at the point where traffic must stop to be checked. The standard STOP (R1

- 1) sign s hall be used in conjunction with the TRAFFIC CONTROL POINT sign. Attachment 2 pg . 6. Like the Texas MUTCD, The Austin Transportation Criteria
Manual requires that “[w]hen a roadway is legally closed but access must still be allowed for local traffic, the [ ] barricade should not be extended completely across10

a roadway. A sign with the appropriate legend concerning permissible use by local
traffic shall be mounted.” 12 The Austin Transportation Criteria Manual further
states, “Where provision is made for access of authorized equipment and vehicles, the responsibility for the Type III barricades should be assigned to a person to ensure proper closure at the end of each work day.” 13
IV
. APPELLANT DID NOT COMMIT A TRAFFIC OFFENSE
. A. Appellant did not violate § 472.022 or § 544.004 of the Texas Transportation Code. The detention of Appellant can only be based on her alleged violation of either § 472.022 (obeying warning signs and barricades) or § 544.004 (compliance
with traffic

- control device) of the Texas Transportation Code. See C.R. 6, R.R. 9. The focus of Officer Rodriguez’ testimony seems to be that he stopp ed Appellant for driving around a barricade. R.R. 30; T EX

. T RANSP

. C ODE § 472.022. Officer Rodriguez testified that had Appellant not been arrested for driving while intoxicated he would have issued her a citation for disregarding a barricade. R.R.
30.

12 Available at: https://www.muni code.com/library/tx/austin/codes/transportation_criteria _manual?nodeId=TRCRMA_S8TRCO

.

13 Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria _manual?nodeId=TRCRMA_S8TRCO

.11 1. Appellant did not commit the traffic offense of driving around a barricade because she did not drive “around” the barricade and the “barricade” did not meet the statutory definition of barricade
. Texas Transportation Code § 472.022 provides that a person c ommits an offense if the person “drives around a barricade.” T EX

. T RANSP

. C ODE § 472.022 (emphasis added) . It is important to note that the legislature specifically used the word “around” when drafting the statute. Id

. The Code Construction Act requires that “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.” T EX

. G OV ’ T C ODE § 311.011; State v.
Chacon , 273 S.W.3d 375, 379 (Tex. App.

— San Antonio 2008, no pet.) (statutes
are to be construed as wri tten ). The legislature has not criminalized “passing” a barricade. Criminalizing driving “around” a barricade makes sense; this allow s officers to physically block off individual lanes of lanes of travel. 14 Otherwise, anytime a barricade was placed anywhere in the street the entire street would be
blocked. In this case Appellant did not drive around any barricades ; her lane of travel was clear, unobstructed, and her movement was unimpeded . Officer Rodriguez testified that there were no barricades in Appellan t’s lane of travel. R.R.
18

. Had there been a barricade across both lanes of traffic and Appellant had left the roadway and driven “around” the barricade she would have admittedly violated § 472.022. All Appellant did was “pass” a barricade in the adjoining lane. This is

14 The Texas MUTCD notes that one of the functions of a barricade is to close either “all or a portion” of the roadway

. See Attachment 2 pg. 9

.12

not a crime. Accordingly, because Appellant did not go “around” any barricade she did not violate § 472.022. Recall that § 472.022 of the Texas Transportation Code sets out the definition of “barricade” as it pertains to the offense of driving around a barricade.
See page 8 supra . In this case, Officer Rodriguez was positioned at the barricade for the Austin City Limits music festival. C.R. 6. In order for there to be a violation of § 472.022 the barricade must be in place “to prevent the passage of motor
vehicles ove r the road, street, or highway during construction, repair, or dangerous
conditions.” T EX

. T RANSP

. C ODE § 472.022(e)(1)(B). Austin City Limits is a yearly
music festival 15 and the placement of the barricade for this purpose does not fall into the category o f “construction , repair, or dangerous condition

. ” Officer Rodriguez also failed to articulate sufficient facts that would indicate the barricade was in place for any of the statutory reasons. Because of this Appellant did not commit the offense of driving around a barricade. In addition to driving around a barricade, § 472.022 also makes it an offense to: “disobey[] the instructions, signals, warnings, or markings of a warning sign.”
T EX

. T RANSP

. C ODE § 472.022(a)(1). 16 Like the definition of “barricade” the statute also defines “warning sign” as a sign “on a road, street, or highway during

15 See http://www.aclfestival.com/

. 16 See also pages 15

- 17 infra regarding sign placement as it pertains to § 544.004 of the Texas Transportation Code.13

construction, repair, or dangerous conditions.” T EX

. T RANSP

. C ODE § 472.022(e)(3). Officer Rodriguez testified to the presence of tw o signs. R.R. 7. One sign said “northbound was shut down for thru traffic” and the other said “Barton Springs Road to close through Ziker Park Friday 12 a.m. until Monday 3 a.m.” R.R. 7. Officer Rodriguez and the State failed to show that the signs were

p laced there for the purpose of “construction, repair, or dangerous condition.” See
T EX

. T RANSP

. C ODE § 472.022(e)(3). Because of this, the signs do not meet the statutory definition and thus Appellant committed no offense by continuing unimpeded in her lan e of travel. There is no evidence regarding the location of the sign that read “northbound shut down for traffic.” Additionally the language used in this sign

—

northbound

—

is ambiguous at best as it did not specify which road
was shut down. Furthermore, neit her sign would put a reasonable person on notice that Barton Springs Road was closed. The sign reading “Barton Springs Road to close through Zilker Park Friday
12 a.m. until Monday 3 a.m.” (emphasis added) would lead a reasonable person to
believe Barton S prings Road was then open. The sign gave notice of what was to happen in the future, i.e. “Barton Springs Road to close . . . Friday 12 a.m. . . .” , not that Barton Springs Road is closed until Monday 3 a.m. A reasonable person
understands “12 a.m.” to be midnight, and when a reasonable person hears “ Friday at midnight ” it is understood to mean at the end of the day on Friday or late Friday14

night. Appellant was stopped at about 3:00 a.m. on Friday morning 21 hours before midnight Friday . A reasonable person would understand the sign to mean Barton Springs Road was open Friday and would become closed at the end of the day, i.e. midnight, on Friday. Section 472.022 of the Texas Transportation Code also requires that the barricade or signs be placed by “the department [ i.e. The Texas Department of Transportation 17 ], a political subdivision, or a contractor or subcontractor.” T EX

. T RANSP

. C ODE § 472.022(e)(1)(A) & (e)(3). There is no evidence that the signs or barricades closing the road for t he Austin City Limits music festival were placed there by any of the entities listed in the statutes. Because of this, in addition to the
definition 18 and purpose 19 problems mentioned above, Appellant cannot have legally violated § 472.022 and any detention of her vehicle for this is illegal.

2. Appellant did not commit the traffic offense of failing to compl y with a traffic
- control device because the barricades, Officer Rodriguez, and signage were not in the proper position. Though not raised by the State at the hearing on Defendant’s motion to

suppress evidence , a thorough examination of Officer Rodriguez’s detention of Appellant requires an examination of § 544.004 of the Texas Transportation Code.

17 “’Depart ment’ means the Texas Department of Transportation.” T EX

. T RANSP

. C ODE § 471.004(f)(3).

18 Appellant did not go “around” any barricades.
19 The barricade and signs (if any) where not in place for the purpose of construction, repair, or dangerous conditions.15

Section 544.004 sets out the offense for failing to comp ly with a traffic

- control device. It provides that: (a) The operator of a vehicle or streetcar shall comply with an applicable official traffic

- control device placed as provided by this subtitle unless the person is: (1) otherwise directed by a traffic or police officer; or (2) operating an authorized emergency vehicle and is subject to exceptions under this subtitle. (b) A provision of this subtitle requiring an official traffic

- control device may not be enforced against an alleg ed violator if at the time and place of the alleged violation the device is not in proper position and sufficiently legible to an ordinarily observant person. A provision of this subtitle that does not require an official traffic

- control device is effectiv e regardless of whether a device is in place.
T EX

. T RANSP

. C ODE § 544.004. Recall from section III above (page s 7

- 10 ) that section 544.001 requires that the Texas Transportation Commission adopt a
manual f or uniform traffic control devices. See T EX

. T RANSP

. C ODE § 544.001.
Attachment 2 contains the relevant portions of the Texas MUTCD concerning the use and placement of barricades and road closure signs. Reading § § 544.004, 544.001, and the Texas MUTCD together , it is clear that the position of the
barricad es, lack of proper signs, and the position of Office r Rodriguez ’ s vehicle
behind the barricade negate any reasonable suspicion that Appellant failed to comply with a traffic control device. Section 544.004(b) requires that the traffic control device be in a “proper position and sufficiently legible to an ordinarily observant person.” T EX

. T RANSP

.16

C ODE § 544.004(b). In this case the barricades blocked all but one lane of travel. R.R. 9, 18, St ate’s Exhibit 1. The Texas MUTCD and the Austin Transportation
Criteria Manual 20 note that b arricades m a y be used to close an entire roadway or just a single lane. See Attachment 2 , pg. 4. An ordinarily observant person in the same position as Appellant wou ld reasonably conclude that the lane s physically
blocked with a barricade were closed and the lane of travel without a barricade was
open. Officer Rodriguez’s car was not parked in the right lane nor were his overhead flashing lights on. He was not standin g outside of his car attempting to direct traffic or notifying drivers in any way that the road was closed. There simply was nothing about this scenario that would cause a reasonable person to believe the right lane was closed. In fact, the scenario is one drivers commonly encounter, especially in Austin, with constant construction downtown

— a barricade blocking one lane with an officer sitting in his car in the closed off

- lane, forcing drivers to move into and drive in the open lane.
One of the functions th at barricades also serve is to act as channelizing
devices. See Attachment 2 , pg 8. B ecause Officer Rodriguez ’ s vehicle was
po sitioned behind the barricade instead of in the one free lane of travel the barricades had the effect of channeling Appellant to the open right lane. Officer Rodriguez’s backup officer took Officer Rodriguez’s initial position near the

20 Available at: https://www.municode.com/library/tx/austin/codes/transportation_criteria _manual?nodeId=TRCRMA_S8TRCO

.17

barricade when Offic er Rodriguez left his position to stop Appellant. R.R. 25. Unlike Officer Rodriguez, the backup officer use d his vehicle to block the open
lane of travel. See State’s Exhibit 1; R.R. 18

- 19 . Had Officer Rodriguez positioned his vehicle correctly ( like his b ackup officer ) Appellant would have notice d that
her lane of travel was physically blocked. It is clear from the testimony of Officer Rodriguez that the intent of the barricades and signs was to create a traffic control point for the Austin City Limits

mu sic festival. 21 The Texas MUTCD sets out how barricades and signs should be used to create a traffic control point. Attachment 2 , pg. 6. The Texas MUTCD requires that a specific traffic control point sign 22 be present where the traffic control point has been set up to “impose such controls as are necessary to limit congestion, expedite emergency traffic, exclude unauthorized vehicles, or protect the public.” Texas MUTCD p 366 § 2N.05, 2011 ed., revision 2 ( A ttachment 2 , pg. 6). Furthermore, the manual requires that the sign be installed “ at the point where traffic must stop to be checked .” Id (emphasis added) . Where a road is completely closed the manual requires that: The ROAD (STREET) CLOSED sign shall not be used where road user flow is maintained through the [TEMPORARY TRAFFIC CONTROL] zone

21 Other vehicles were clearly traveling on Barton Springs Road past the point of the barricade and are visible in State’s Exhibit 2. See also R.R. 25

- 26. Officer Rodriguez indicated that his backup officer was allowing vehicles through the barricade if they had the correct credentials. Id

.

22 The manual refers to the sign as EM

- 3 and an example may be found at page 5 of Attachment 4.18

with a reduced number of lanes on the existing roadway or where the actual closure is some distance beyond the sign. Texas MUTCD p 607 § 2N.05, 2011 ed., revision 2 ( A ttachment 2 , pg. 7). To put it

a nother way, where a road is going to be temporarily closed, there must be a sign at the point where the road is closed; this is especially true if some traffic will be
allowed through the closure. Recall that in Appellant’ s case the intent of the barricade was to allow people affiliated with the Austin City Limits music festival to pass through the checkpoint. It was essentially a temporary traffic control zone contemplated by the
Texas MUTCD. There was no evidence that the re was a road closed sign at the barricades as required by the Texas MUTCD. Officer Rodriguez testified that there was a large sign behind his position that read “Barton Springs Road to be closed through Zilker Park Friday 12 a.m. until Monday 3 a.m.” R.R. 22, 23. 23 This sign is past the point of the barricade and the use of the words “to be closed” and “Friday
12 a.m.” leads a reasonable person to believe that it is referencing a future time. Officer Rodriguez also testifie d to the presence of a second mobile sign that read
“northbound was shut do wn for through traffic.” R.R. 7. The location of the second sign is unclear from the record and it is unclear what “northbound” referred to

. There is nothing in the record to indicate whether the si gn was in a position where

23 The support pole for the sign is barely visible in Officer Rodriguez’s in

- car video. See State’s Exhibit 1 (the pole is visible between the two orange signs the time stamp of 2:59:54).19

Appellant or a reasonable person would have seen it. Officer Rodriguez’s testimony indicates that the second sign was a mobile sign that could be towed by a truck. R.R. 7. This is not the road closed sign that is contemplated by the Texas
MUTCD. See Attachment 2 , pg. 5

- 6 (referencing a traffic control point sign). Additionally, based on Officer Rodriguez’s testimony, the sign does not say the road is completely closed, just closed to through traffic. Assuming the second sign that said the road was closed to through traffic was in a location visible to Appellant prior to the barricade , Officer Rodriguez still did not know whether Appellant was going through the park or whether her destination was somewhere within the park. If the r oad was truly blocked for through traffic then the situation is analogous to Appellant driving on a dead end street. Once she reached the end she would then simply turn her vehicle around and come back the way she came. There is nothing illegal about turni ng down a dead

- end street. The transportation code specifically provides that the failure to obey a traffic control device is only a crime if the device is sufficiently legible to the driver. T EX

. T RANSP

. C ODE § 544.00 4

. The purpose of the Texas MUTCD is to ensure that
drivers understand traffic control devices

. 24 If the device does not comply with the
Texas MUTCD then it cannot be inferred that the driver understood the device. Thus, it cannot be said that A ppellant failed to comply with a traffic control device.

24 This is why the creation of the Texas MUTDC is codified in the same chapt er as the offense of failure to comply with a traffic

- control device. See T EX

. T RANSP

. C ODE §§544.001 et. seq.20

Accordingly, Officer Rodriquez’s detention of Appellant for failure to comply with a traffic control device is illegal.
V. C ONCLUSION There was no reasonable suspicion to believe Appellant committed any crime prior to her stop. She did not fail to obey any traffic control device, nor did she drive around any barricade. 25 Her lane of travel was wide open. There was no barricade or police car blocking her lane. The officer’s car was parked in the adjoining lane without flashing lights, and the officer was not positioned outside his car making any effort to direct or stop tr affic. Because Officer Rodriguez did not properly block the right lane of travel , Appellant, as any reasonable person would, felt free to continue in the right lane of travel. T he sign did not say Barton Springs Road was closed; it said it was to be closed beginning Friday at 12:00 a.m. which a reasonable person would understand to mean Friday at midnight, a
time not to occur until 2 1 hours later. The barricades, signage, and Officer Rodriquez’s position would lead an ordinary person to believe the right l ane of travel was still open. Since Appellant did not commit a traffic offense the detention of her vehicle was illegal and any evidence gathered as a result of her detention should be suppressed.

25 Furthermore, the offense of driving around a barricade requires that the barricade be in place for certain statutory reasons, none of which wer e applicable in this case.21 P RAYER For the reasons set out above, Appellant respectful ly prays this Court
overrule the trial court’s ruling and order that Appellant’s motion to suppress be granted

. Respectfully submitted,

_________________________ __ MERIL “GENE” ANTHES, JR. State Bar No. 24040125 CHRISTOPHER M. GUNTER State Bar No. 08624600 G UNTER , B ENNETT & A NTHES , P.C. 600 West Ninth Street Austin, Texas 78701

- 2212 (512) 476

- 2494 (512) 476

- 2497 Facsimile Attorney s for Appellant22 CERTIFICATE OF COMPLIANCE I certify that this document was prepared with Microsoft Word, and that, according to that program’s word

- count function, the sections covered by Texas Rule of Appellate Procedure 9.4 (i) contain 4,294 words.

____________________________ MERIL “GENE” ANTHES, JR. CHRISTOPHER M. GUNTER

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of t he foregoing Appellant ’s
Brief sent via certified mail to PO Box 1748, Austin, Texas 78767 to Giselle Horton, Assistant County Attorney, Travis County, P.O. Box 1748, Austin, Texas 78767, on this the 10th day of June , 20 15

.

____________________________ MERIL “GENE” ANTHES, JR. CHRISTOPHER M. GUNTERElizabeth Ann Black v. State Attachment 1 Page 1 of 2 

# Attachment 1Elizabeth Ann Black v. State Attachment 1 Page 2 of 2Elizabeth Ann Black v. State Attachment 2 Page 1 of 9 

# Attachment 2Elizabeth Ann Black v. State Attachment 2 Page 2 of 9Elizabeth Ann Black v. State Attachment 2 Page 3 of 9Elizabeth Ann Black v. State Attachment 2 Page 4 of 9Elizabeth Ann Black v. State Attachment 2 Page 5 of 9Elizabeth Ann Black v. State Attachment 2 Page 6 of 9Elizabeth Ann Black v. State Attachment 2 Page 7 of 9 0Elizabeth Ann Black v. State Attachment 2 Page 8 of 9Elizabeth Ann Black v. State Attachment 2 Page 9 of 9June 12, 2015

Honorable Jeffrey D. Kyle Via Electronic Delivery Clerk of the Court Austin Court of Appeals Price Daniel Sr. Building 209 West 14th Street, Room 101 Austin, Texas 78701
RE: The State of Texas vs. Elizabeth Black No. 03

- 15

- 00065

- CR On Appeal from Travis County Court

- at

- law Number Five Cause No. C1CR

- 13

- 217530

Dear Mr. Kyle: Enclosed for filing please find Appellant’s Brief in the above

- referenced cause. Thank you f

or your assistance in this matter. Please feel free to contact me should you have any questions. Best regard s ,

Gene Anthes

cc: Giselle Horton Assistant Travis County Attorney P.O. Box 1748 Austin, Texas 78767