No. 14-15-00025-CR 

* * * * * * * * * * * * * * * * * * 

IN THE 

COURT OF APPEALS 

FOR THE FOURTEENTH SUPREME JUDICIAL DISTRICT 

AT HOUSTON, TEXAS 

* * * * * * * * * * * * * * * * * * 

NATHAN JONES, Appellant 

 Vs. 

THE STATE OF TEXAS, Appellee 

* * * * * * * * * * * * * * * * * * * 

 BRIEF OF APPELLANT 

(ANDERS BRIEF) 

* * * * * * * * * * * * * * * * * * * 

Respectfully submitted, 

SUE BERKEL 

PO BOX 303063 

AUSTIN, TEXAS 78703 

TELE: 512 689-8733 

FAX: 512 323-5039 

NO ORAL ARGUMENT REQUESTED 

By:/s/SueBerkel____________ 

SUE BERKEL 

ATTORNEY FOR 

APPELLANT 

STATE BAR NO. 02202525 

ACCEPTED

14-15-00025-CR

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

3/10/2015 10:36:25 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 3/10/2015 10:36:25 AM CHRISTOPHER A. PRINE Clerk
IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of the parties of the judgment appealed from 

and the names and addresses of all trial and appellate counsel.

Defendant/Appellant Nathan Jones

Prosecution/Appellee The State of Texas 

Trial and Appellate Attorney for the State David A. Escamilla

State Bar No. 06662300

Travis County Attorney

Travis County Attorney’s Office

314 West 11th St.

Austin, Texas 78701

Phone: (512) 854-9415

Trial Attorney for Defendant Mr. Matthew Jones

State Bar No. 10929150

Attorney at Law

4408 Spicewood Springs Rd..

Austin, Texas 78759

Phone: (512) 451 6991

Appellate Attorney for Defendant Sue Berkel

State Bar No. 02202525

Attorney at Law

PO Box 303063

Austin, Texas 78703

Phone: (512) 689-8733

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

POSSIBLE ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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INDEX OF AUTHORITIES

CASES

Brooks v. State 323, S.W.3d 893, 905-907 (Tex.Crim. App.2010). . . . . . . . . . . 9

Davis v. State, 947 S.W. 12d 240, 244 (Tex. Crim. App. 1997). . . . . . . . . . . . . .11 

Derichsweiler v. State, 348 S.W.3d 906 (Tex.Crim.App. 2011) . . . . . . . . . . . . . 11

Ford v. State, 158 s.W.3d 488, 492 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . 11

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . 10

Maryland v. Wilson, 519 U.S. 408, 411 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Temple v. State 342 S.W.3d 572 (Tex.App.Houston(14th Dist.) 2010). . . . . . . . . 9

Terry v. Ohio,392 U.S. 1, 22 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Castleberry, 332 S.W.3d 460 (Tex.Crim.App. 2011). . . . . . . . . . . . . . . . 11

United States v. Sokolow, 490 U.S.1, 10 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

OTHER AUTHORITY

. 

Tex. Penal Code Section 49.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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STATEMENT OF THE CASE

This is an appeal of a criminal conviction of Driving While Intoxicated, a 

Class B misdemeanor. The offense was allegedly committed on or about January 

18, 2014. Appellant pled not guilty to the offense, and after trial, the Judge found 

the Defendant guilty and sentenced him to 180 days confinement probated for two 

years with no fine or community service but required a mental health assessment, 

completion of a MADD class and the installation of an ignition interlock for the 

first six months of probation. From that judgment Appellant would appeal, 

however, after the undersigned counsel has made a conscientious examination of 

the clerk’s and reporter’s records, the undersigned counsel can find no basis for 

appeal and to assert any basis would be wholly frivolous. All references to the 

Clerk’s Record shall be cited as (C.R. ) followed by the page number and all 

references to the Reporter’s Record shall be cited as (R.R. ) followed by the 

volume (v) and page numbers ( ). 

POSSIBLE ISSUES PRESENTED

POSSIBLE POINT OF ERROR ONE

This cause should be reversed because the evidence is legally 

insufficient to uphold Appellant’s conviction
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POSSIBLE POINT OF ERROR TWO

This cause should be reversed because there was no reasonable 

suspicion to stop the Appellant. 

STATEMENT OF THE FACTS

On or about January 18, 2014, Officer Miranda McGee with the University 

of Texas police department, observed Appellant’s vehicle travelling northbound on 

Guadalupe St. straddling the center line. (RR, v.2, pgs.8, 12-13). Officer McGee 

was westbound on 24th and turned northbound onto Guadalupe St., a public street, 

in Austin, Travis County, Texas. (RR v. 2, pgs.12-13, 17) Guadalupe has two 

lanes which travel southbound and two lanes which travel northbound and a bike 

lane on the right but there is no turn lane. (RR v. 2, pg. 13) Prior to Officer 

McGee first observing Appellant’s car, another car, a black car, had turned into 

Appellant’s lane in front of Appellant and Appellant had to slow down to allow 

that other car to turn into Appellant’s lane. (RR v, 2, pg. 45). Officer McGee saw 

Appellant’s VW straddling the center dotted line while Appellant’s car appeared to 

be pushing into the car in the adjoining lane. (RR v2, pg. 13) Appellant’s car was 

going out of his northbound lane and other driver looked like he was being forced 

out of his adjoining northbound lane and was being pushed into the bike lane. 

(RR v2, pg. 13) Appellant explained that because the other driver had cut him off, 
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he was wanting to get even with that driver so that he could mean mug him. (RR 

v. 2, pg. 49-50) Officer McGee was concerned for the safety of the other driver. 

(RR v. 2, pg. 14) Appellant’s car then went back into his own lane (the left hand 

lane) but moved into the other car’s lane (the right hand lane) cutting the other car 

off at the intersection of Guadalupe and Dean Keeton. (RR v. 2, pg. 14) Appellant 

did not leave enough distance between the two cars when he moved into the right 

hand lane nor did Appellant signal that he was moving from the left hand lane into 

the right hand lane. (RR v. 2, pgs. 14-15) Officer McGee activated her overhead 

lights and Appellant used his turn signal to turn right on 27th street and pulled over 

right away at approximately 3:17 a.m. (RR v. 3, pg. 15) Officer McGee 

approached Appellant and asked him why he was driving so aggressively and 

Appellant replied “because the driver of the other car was driving like an asshole.” 

(RR v. 2, pg. 17). Officer McGee noticed a moderate odor of alcohol emitting 

from Appellant’s vehicle and noticed that Appellant had slightly slurred speech 

and glassy eyes. (RR v. 2, pgs 17-18). There was nobody else in Appellant’s car 

and Appellant related that he was coming from a fire twirling event and had three 

beers (or three jack and sodas according to Appellant’s testimony) and that it was 

1:45 a.m. (RR v. 2, pgs. 18-19, 55). Officer McGee administered the HGN test 

and noticed four of six clues, that Appellant’s eyes lacked smooth pursuit in both 
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eyes and had distinct and sustained nystagmus in both eyes. (RR v. 2, pg. 20).

Officer McGee administered the walk and turn test and noticed that Appellant had 

an improper turn, stepped off the line, used his arms for balance and missed his 

heel to toe. (RR v. 2, pg. 21) If a DWI suspect misses four or more clues on the 

walk and turn test, the officer should continue the test so Officer McGee offered 

Appellant the opportunity to do the one leg stand test, however, Appellant refused. 

(RR v. 2, pg. 22) Appellant then began to shout about medical marijuana and 

when Officer McGee asked Appellant to count out loud, Appellant told Officer 

McGee to count out loud. (RR v. 2, pg. 23) Officer Zavala had arrived as a back 

up officer and had to forcibly push Appellant into the patrol car after Officer 

McGee arrested Appellant for DWI. (RR v. 2, pgs. 23-24) When Officer McGee 

read the DIC-24 statutory warnings to Appellant he shouted over her that she was 

to “get your fucking radio and order a breathalyzer on the spot”, however, once 

Appellant arrived at the jail, he refused the intoxilyzer test. (RR v. 2, pgs. 25-27) 

SUMMARY

Appellant could possibly complain that the evidence is not sufficient to 

support his conviction and that it was error for the Court to rule that there was 

reasonable suspicion to stop Appellant.
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 POSSIBLE ARGUMENT UNDER POINT OF ERROR NO. ONE

A possible point of error is that this cause should be reversed because the 

evidence admitted at trial was legally insufficient to support a guilty verdict. The 

Court of Criminal Appeals has held that there is only one standard, the legal 

sufficiency standard, to be used to evaluate whether the evidence is sufficient to 

support a criminal conviction. Brooks v. State 323, S.W.3d 893, 905-907 

(Tex.Crim.App.2010) When reviewing sufficiency of the evidence under the legal 

sufficiency standard, the Court reviews all of the evidence in the light most 

favorable to the verdict to determine whether the jury was rationally justified in 

finding guilty beyond a reasonable doubt. Temple v. State 342 S.W.3d 572 

(Tex.App.Houston(14th Dist.) 2010). The State had the burden to prove that on 

January 18, 2014, Appellant operated a motor vehicle in a public place in Travis 

County, Texas while intoxicated. (CR pgs. 10-11) Tex. Penal Code Section 

49.04. Officer McGee’s testimony that Appellant operated a motor vehicle on 

January 18, 2014 in a public place in Travis County, Texas was uncontroverted. 

(RRv2, pg. 17) The State also proved beyond a reasonable doubt that Appellant 

was intoxicated through the officers testimony regarding Appellant’s driving, 

appearance, demeanor and performance on the field sobriety tests and the video 

which was admitted into evidence. (RR v. 2, pgs. 9-36, State’s Exhibit 1). The 
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State met its burden of proof in this case and to assert otherwise would be 

frivolous. 

POSSIBLE ARGUMENT UNDER POINT OF ERROR NO. TWO

A possible point of error is that this cause should be reversed because the

State failed to establish reasonable suspicion for the stop of Appellant’s vehicle. 

Appellant’s counsel argued in his closing arguments that there was no reason to 

pull Appellant’s vehicle over, in other words that there was no reasonable 

suspicion for the stop. (RR v. 2, pg 68) Such an argument could have been made 

in a motion to suppress which if successful could have suppressed the evidence of 

intoxication, however, there was overwhelming evidence that Officer McGee had a 

reasonable suspicion to stop Appellant. 

Law enforcement officers may stop and briefly detain persons suspected of 

criminal activity on less information than is constitutionally required for probable 

cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968) To initiate an investigative 

stop, the officer must possess a reasonable suspicion based on specific articulable 

facts that, in light of the officer’s experience and general knowledge, would lead 

the officer to reasonably conclude the person detained actually is, has been, or soon 

will be engaged in criminal activity. United States v. Sokolow, 490 U.S.1, 10 

(1989); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). These facts 
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must be more than a mere hunch or suspicion. Davis v. State, 947 S.W. 12d 240, 

244 (Tex. Crim. App. 1997).

An investigative stop must be objectively reasonable in light of the particular 

circumstances of the case. Maryland v. Wilson, 519 U.S. 408, 411 (1997); 

Terry,392 U.S. at 21-22. Whether the officer’s suspicion was reasonable is 

evaluated based on “an objective standard that disregards any subjective intent of 

the officer making the stop and looks solely to whether an objective basis for the 

stop exists.” Ford v. State, 158 s.W.3d 488, 492 (Tex. Crim. App. 2005). It should 

be based on the totality of the circumstances. See Derichsweiler v. State, 348 

S.W.3d 906 (Tex.Crim.App. 2011) The Court of Criminal Appeals clarified that 

the test for reasonable suspicion does not require the facts to point to the actual or 

impending commission of a particular crime because a brief investigative detention 

constitutes a significantly lesser intrusion upon the privacy and integrity of the 

person than a custodial arrest. Id. The Court of Criminal Appeals even more 

recently held that an officer can have a reasonable suspicion to stop a suspect even 

if there is a possibility of an innocent explanation for the suspect’s conduct. State 

v. Castleberry, 332 S.W.3d 460 (Tex.Crim.App. 2011). In this case, Officer 

McGee observed Appellant’s vehicle straddle the center lane, move dangerously 

into another car’s lane causing that car to move into the bike lane, cut off the other 
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car at the intersection of Dean Keeton and Guadalupe while failing to signal a lane 

change. (RR v. 2, pgs. 11-17). Officer McGee did not see the other car make an 

unsafe turn into Appellant’s lane and even if that did in fact occur, that does not 

negate Appellant’s failure to stay in his single lane of traffic. (RR v.2, pg. 32-34, 

45) Officer McGee had personally observed several traffic violations and as such 

had a reasonable suspicion to stop Appellant. Id.

PRAYER

For the reasons stated above, Appellant respectfully prays that the Court of 

Appeals grant the undersigned counsel’s motion to withdraw because Appellant’s 

appeal is frivolous.

Respectfully submitted,

SUE BERKEL

PO BOX 303063

AUSTIN, TEXAS 78703

TELE: 512 689-8733

FAX: 512 323-5039
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By:_/s/Sue Berkel________

SUE BERKEL

ATTORNEY FOR 

APPELLANT

STATE BAR NO. 02202525

CERTIFICATE OF SERVICE

By my signature above, I to certify that the above instrument has been 

served on the Travis County Attorney’s Office and on the Appellant, at 1200 w. 

40th #108 Austin Texas 78756 this___10___day of March, 2015.

CERTIFICATE OF COMPLIANCE

By my signature above, I certify that pursuant to TRAP 9.4(i), the length of 

this brief is 2792 words.
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