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 REPLY BRIEF 

__________________________________________________________________ 

MERIL “GENE” ANTHES, JR.

State Bar No. 24040125 

Gene@GBAfirm.Com 

CHRISTOPHER M. GUNTER 

State Bar No. 08624600 

Chris@GBAfirm.Com 

GUNTER, BENNETT & ANTHES, 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

6161368

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/21/2015 3:21:27 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/21/2015 3:21:27 PM JEFFREY D. KYLE Clerk
i

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, Bennett & 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

County Court-at-Law No. Five

Travis County, Texas

Blackwell/Thurman Criminal Justice Center

509 West 11th, 4th Floor

Austin, Texas 78701
ii

TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ......................................................... i

TABLE OF CONTENTS........................................................................................ ii

INDEX OF AUTHORITIES................................................................................... iii

ARGUMENT.......................................................................................................... 1

PRAYER................................................................................................................. 3

CERTIFICATE OF COMPLIANCE...................................................................... 5

CERTIFICATE OF SERVICE ............................................................................... 5
iii

INDEX OF AUTHORITIES

CASES PAGE

State v. Duran, 396 S.W3d 563 (Tex. Crim. App. 2013) .......................... 1-2
1

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 REPLY BRIEF

__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

COMES NOW Appellant Elizabeth Ann Black, by and through her

undersigned counsel, and offers Appellant’s Reply Brief, by which Appellant 

respectfully shows the Court the following:

ARGUMENT

The State improperly argues that statements made by Appellant after she 

was stopped by Officer Dominguez can be used to justify the stop. State’s Brief 3, 

4, 8. A detention is either good or bad at the moment it starts. State v. Duran, 396 
2

S.W. 3d 563, 569-570 (Tex. Crim. App. 2013). Information that the officer either 

acquired or noticed after a detention or arrest cannot be considered in determining 

whether an officer had reasonable suspicion to believe a crime had been committed 

or was being committed. Id. at 569. 

It should be noted that in addition to improperly arguing post-detention 

statements by Appellant to justify the stop the state misrepresents what Appellant 

actually told the officer. For instance, the State asserts, “Black told Rodriguez that 

she had seen the barricade but was trying to get home.” State’s Brief at 3. The 

videotape, however, makes clear that Appellant told him the opposite, that she 

didn’t see a barricade. 

(Officer Dominguez) Did you not see the barricade?

(Appellant) No, sorry I live right over there. 

(Officer Dominguez) I don’t care where you live...you didn’t see the 

barricade?

(Appellant) No, I did not. 

3 RR State’s Exhibit #1 @ 3:00:30

In making Appellant’s statements the centerpiece of its argument, the State 

ignores the facts that demonstrate a lack of reasonable suspicion to believe 

Appellant was committing or had committed a crime: 

 The lane in which Appellant was traveling was wide open. 1 RR 18-

19.
3

 There was no barricade in Appellant’s lane. 1 RR 18-19.

 The police officer was parked behind a barricade in the adjacent lane 

to Appellant’s lane. 1 RR 8, 18-19.

 The officer was not outside his vehicle directing drivers to stop as 

Appellant’s vehicle approached. 3 RR State’s Exhibit 1 @ 2:59:40.

He was sitting in his vehicle until Appellant’s vehicle was virtually 

even with the officer’s car and he only yelled “Hey” as she drove past 

him. 3 RR State’s Exhibit 1 @ 2:59:42; 2 RR 9-10; 20.

 The officer’s flashing overhead lights were not on as he sat behind the 

barricade. 2 RR 19-20.

 A sign was present informing drivers such as Appellant that Barton 

Springs Rd. was to close at midnight Friday, 21 hours in the future. 

Nothing about the sign indicated the road was then closed. The sign 

read: “Barton Springs Rd. to close Friday 12 a.m. until Monday 3 

a.m.” 2 RR 22-23.

 Appellant did not ignore or fail to heed any sign.

 Appellant did not go around or through any barricade; she simply 

drove past a barricade that was in the adjoining lane.

PRAYER

For the reasons set out above, Appellant respectfully prays this Court 

overrule the trial court’s ruling and order that Appellant’s motion to suppress be 

granted. 
4

Respectfully submitted,

___________________________

MERIL “GENE” ANTHES, JR.

State Bar No. 24040125

CHRISTOPHER M. GUNTER

State Bar No. 08624600

GUNTER, BENNETT & ANTHES, P.C.

600 West Ninth Street

Austin, Texas 78701-2212

(512) 476-2494

(512) 476-2497 Facsimile

Attorneys for Appellant
5

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 492 words.

____________________________

MERIL “GENE” ANTHES, JR.

CHRISTOPHER M. GUNTER

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the 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 22nd day of July, 2015.

____________________________

MERIL “GENE” ANTHES, JR.

CHRISTOPHER M. GUNTER
July 21, 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 Reply Brief in the above-referenced cause.

Thank you for your assistance in this matter. Please feel free to contact me should you 

have any questions.

Best regards,

Gene Anthes

cc: Giselle Horton

Assistant Travis County Attorney

P.O. Box 1748

Austin, Texas 78767