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

CLERKIDENTITY 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 tria l 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 11 th 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

2TABLE 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
SUM MARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . 8
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
PRAYER . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

34 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)

. . . . . . . . . . . . . . . . 1 1 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(14 th 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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 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 . Fro m 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 frivolou s. 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 conviction6 POSSIBLE POINT OF ERROR TWO
This cause should be reversed because there was no reasonable suspicion to stop the Appellant.
STAT EMENT OF THE FACTS
On or about January 18, 2014, Officer Miranda McGee with the University of Texas police department, observed Appe llant’s vehicle travelling northbound on Guadalupe St. straddling the center line. (RR, v. 2 , pgs. 8, 12

- 13 ). Officer McGee
was westbound on 24 th and turned northbound onto Guadalupe St., a public street, in Austin, Travis County, Texas. (RR v. 2, pgs.12

- 13, 17) Guadalupe has two
l anes 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 lan e 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 i n the adjoining lane. (RR v 2 , pg. 1 3 ) 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 v 2, pg . 1 3 ) Appellant explained that because the other driver had cut him off,7

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) Appella nt’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 signa l to turn right on 27 th 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 dri ving 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 Appellan t’s car
and A ppellant 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 n oticed four of six clues, that Appellant’s eyes lacked smooth pursuit in both8

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 t o 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 no t sufficient to support his conviction and that it was error for the Court to rule that there was reasonable suspicion to stop Appellant.9

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 stan dard, 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 rev iews 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(14 th Dist.) 2010). The State had the b urden 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

. (RRv 2, pg . 1 7 ) The State also proved beyond a reasonable doubt that Appellant was intoxicated through the officers testimony regarding Appellant’s driving, appearance, de meanor 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) . The10

State met its burden of proof in this case and to assert otherwise would be
frivolous.
POSSIBLE ARGUMENT UND ER 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 n o 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
intox ication, 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 r equired 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 knowl edge, 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 facts11

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 ba sis 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. Castleber ry, 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 other12

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

- 503913 By:_ /s/Sue Be rkel

________ 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.
40 th #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.14