ORAL ARGUMENT REQUESTED NO. 01

- 15 -00512- CR

____________________ IN THE
COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS

AT HOUSTON

___________________________ TAYLOR MARTIN KORB, Appellant

v. STATE OF TEXAS, Appellee

______________________ On Appeal from Cause No. 1980492 County Criminal Court at Law Number Three (3)

Harris County, Texas Hon. Natalie Fleming, Presiding

_____________________________ BRIEF OF APPELLANT TAYLOR MARTIN KORB

_____________________________

D AN K RIEGER 215 East Galveston Street League City, Texas 77573 (281) 332-7630 Phone (281) 332-7877 Facsimile dan@kriegerlawfirm.com A TTORNEY FOR A PPELLANT ACCEPTED 01-15-00512-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 9/30/2015 6:40:18 PM CHRISTOPHER PRINE

CLERKii IDENTITY OF PARTIES AND COUNSEL Appellant/Defendant: Taylor Martin Korb Trial Counsel for Appellant: Dan Krieger State Ba r No. 24064243 Christopher Morton State Bar No. 24037145 215 E. Galveston St. League City, Texas 77573 (281) 332

- 7630 (Telephone) (281) 332

- 7877 (Facsimile) dan@kriegerlawfirm.com Appellate Counsel for Dan Krieger Appellant: State Bar No. 24064243 215 East Galveston Street League City, Texas 77573 (281) 332

- 7630 (Telephone) (281) 332

- 7877 (Facsimile) dan@kriegerlawfirm.com Appellee: State of Texas
Trial Counsel for Napoleon Wilson Stewart, I I Appellee: State Bar No. 24086894 Molly Katharine Wurzer State Bar No. 24082073 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: (713) 755

- 5800 Appellate Counsel Alan Curry for Appellee: State Bar No. 05263700 1201 Franklin Street Housto n, Texas 77002 Telephone: ( 7 13) 755

- 5826 Trial Judge: Honorable Natalie Flemingiii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL

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

................................ ................................ ............................. i ii

INDEX OF AUTHORITIES

................................ ................................ ........................ v
STATEMENT OF THE CASE

................................ ................................ .................... 1
STATEMENT REGARDING ORAL ARGUMENT

................................ .................. 2
ISSUE PRESENTED FOR REVIEW

................................ ................................ ......... 3
STATEMENT OF FACTS

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

................................ ................................ .......... 7
ARGUMENT AND AUTHORITIES

................................ ................................ .......... 8
I SSUE 1 : T HE TRIAL COURT ERRED IN FAILING TO SUPPRE SS THE OFFICER ’ S STOP OF THE A PPELLANT AS THERE WE RE NO ARTICULABLE FACTS TO ESTABLISH REASONA BLE SUSPICION FOR THE STOP OF THE A PPELLANT

. ................................ ................................ ..... 8

A. S TANDARD OF R EVIEW

................................ ................................ ............ 8

B. T HE R EPORT OF A P ERSON D RIVING BY A R ESID ENCE , WITHOUT EVIDENCE OF OTHER ILLEGAL ACTIVI TY IS INSUFFICIENT TO JUST IFY AN INVESTIGATIVE DETENTION

................. 9

C. T HE C OURT OF C RIMINAL A PPEALS IN C RAIN V

. S TATE ESTABLISHED THE FACTORS RELIED UPON BY THE OFFICER IN THIS CASE WERE IN SUFFICIENT TO CON STITUTE REASONABLE SUSPICION

................................ ................................ 10

D. T HE FACTS OF THIS CAS E ARE DISTINGUISHABL E FROM OTHER CASES WHERE RE ASONABLE SUSPICI ON WAS FOUND FOR AN INVESTIGATIVE DETENTION

. ................................ .............. 11iv

PRAYER

................................ ................................ ................................ ...................... 13
CERTIFICATE OF SERVICE

................................ ................................ .................... 15 CERTIFICATE OF COMPLIANCE

................................ ................................ ........... 15 APPENDIX

................................ ................................ ................................ .................. Av INDEX OF AUTHORITIES FEDERAL AND STATE COURT CASES Amador v. State, 275 S.W.3d 872 (Tex.Crim.App.2009)

................................ ......................... 8
Brown v. Texas, 443 U.S. 47 (1979)

................................ ................................ ................................ ............................... 9 Crain v. State, 315 S.W .3d 43 (Tex.Crim.App. 2010)

................................ .................... 9

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

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

................................ ................. 8 Taflinger v. State, 414 S.W.3d 881 (Tex.App.

– Houston [1st Dist.] 2013, no pet.)

............. 11,12 Terry v. Ohio, 392 U.S. 1 (1968)

................................ ................................ .................... 9, 10 United States v. Sokolow,

490 U.S. 1 (1989)

................................ ................................ ................... 9
Wiede v. State,

214 S.W.3d 17 (Tex.Crim.App. 2007 )

................................ ........................ 8 Woods v. State, 956 S. W.2d 33 (Tex.Crim.App.1997)

................................ .................... 101 STATEMENT OF THE CAS E Mr. Taylor Martin Korb (“Appellant”) was charged with Driving While
Intoxicated , a class B misdemeanor

. (C

. R

. at 5). Appellant filed a motion to suppress the traffic stop on March 13, 2015. (C

. R

. at 23

- 24). The trial court heard Appellant’s motion to suppress on April 28, 2015 and denied the motion to suppress the traffic
stop. ( III R.R. at 42). A jury trial commenced imme diately after the suppression hearing and on the same date. (C

. R . at 27

- 32). Defendant was convicted of Driving
While Intoxicated on April 29, 2015 and sentenced by the Court to one hundred eighty days in the Harris County Jail, probated for twelve months and a $500 fine. (C

. R . at 41

- 42).2 STATEMENT REGARDING ORAL ARGUMENT Pursuant to Rule 39.7 of the Texas Rules of Appellant Procedure, Appellant Taylor Martin Korb requests that this Court hear oral argument of this appeal. Appellant believes that oral argument would s ignificantly aid this Court in determining the application of the facts in this matter to the legal issues presented
herein. T his appeal presents important legal issues concerning a police officer’s reasonable suspicion for an investigative detention.3 ISSUE PRESENTED FOR REVIEW

Issue 1: The trial court erred in failing to suppress the officer’s stop of the Appellant as there were no articulable facts to establish reasonable suspicion for the stop of the Appellant.4 STATEMENT OF FACTS
At the moti on to suppress hearing, held prior to trial, the State stipulated this

wa s a warrantless arrest case. ( III R.R. at 4).
On August 28, 2014 , at approximately midnight, Officer Galvan of the Pasadena Police Department was on

- duty, working patrol, and was sent to a residential neighborhood in Pasadena, Texas. ( III R.R. at 5

- 6). Officer Galvan testified that he was called for a light

- colored, small truck driving in the area. ( III
R.R. at 12). Officer Galvan stated he was familiar with the neighborhood and
criminal mischief and bur glaries occur there. ( III R.R. at 9). No evidence was presented regarding the officer’s familiarity with these crimes with respect to the

area . Officer Galvan testified that at the time of this call no criminal activity was reported and no illegal activity was re ported. ( III R.R. at 22, 27). Officer Galvan testified that approximately one minute later he arrived in the area and saw the Appellant driving a light colored truck and using a cellular phone. ( III R.R. at 13

- 14). Officer Galvan reported that the caller was ide ntified by name and phone number. ( III R.R. at 13). Officer Galvan also testified that caller reported he had seen the vehicle three times over a period of ten minutes. ( III R.R. at 22). The caller was not presented as a witness at the suppression hearing or at trial. Officer Galvan testified there was “no good reason for anyone to just drive around multiple times” and that he “wanted to gather more information on the5

vehicle onto why he was driving around the area so many times.” ( III R.R. at 25, 30). He further tes tified the truck solely driving around would cause alarm. ( III
R.R. at 23). Officer Galvan testified that [a person] raise[s] suspicion by driving in the area multiple times. ( III R.R. at 28). When asked about the raised suspicion,
Officer Galvan indicated that th e act ivity raised suspicion of “ suspicious activity ”
and “possibly casing homes, and possibly looking to burglarize.” ( III R.R. at 28). Officer Galvan also testified that by simply observing a person driving around, he would not have reasonable suspicion to believe a person had committed a crime or that a person was going to commit a crime. ( III R.R. at 29). Officer Galvan stated he would need more articulable facts to determine if some crime was going to happen. ( III R.R. at 23

- 24). Officer Galvan testified that prior to the sto p he observed the Appellant to make a complete stop at a stop sign. ( III R.R. at 27). He testified that Appellant properly signaled his turn and turned properly. ( III R.R. at 27). Officer Galvan further testified that he did not observe anything that would lead him to believe that Appellant was intoxicated at the time of stop ping the vehicle . ( III R.R. at 27). Officer Galvan confirmed that the sole reason for his stopping the vehicle was because of the call. ( III R.R. at 27). Officer Galvan testified he did not have enough inform ation to have a reasonable suspicion, solely based on Appellant driving around, that Appellant had6

committed a crime or was going to commit a crime. ( III R.R. at 29). On further questioning, Officer Galvan was asked if he believed that if someone calls 911 and

r eports a suspicious vehicle that he had the right to stop the vehicle. ( III R.R. at 31). Officer Galvan responded that “we check all calls and the vehicles in the area or persons that are called in.” ( III R.R. at 31). When asked if Appellant’s counsel
called 911 and s imply said there is a suspicious vehicle driving in front of his house, if Officer Galvan would stop that vehicle

-- Officer Galvan’s response was, “Yes.” ( III R.R. at 31). No other witnesses were presented. At the close of the suppression hearing,
the trial cou rt denied the Appellant’s motion to suppress. ( III R.R. at 42).7 SUMMARY OF THE ARGUMENT The arresting officer in this matter testified that he did not observe any illegal activity and that he would need further articulable facts other than a person driving
around to hav e reasonable suspicion to stop the Appellant. No evidence of any type of illegal activity was presented as the basis for the call to the police or the stop of the Appellant. A caller reporting a vehicle driving by a residence, without other
evidence of cr iminal activity, does not provide reasonable suspicion to justify an investigative detention. There were no specific articulable facts that would justify an investigative detention in this matter.8 ARGUMENT AND AUTHORITIES
I. T HE TRIAL COURT ERRED IN FA ILING TO SUPPRESS TH E OFFICER ’ S STOP OF THE A PPELLANT AS THERE WE RE NO ARTICULABLE FA CTS TO ESTABLISH REASONABLE SUSPICION FOR THE STOP OF THE A PPELLANT . A
. S TANDARD OF R EVIEW A trial court's ruling on a motion to suppress is reviewed under a bifurcated
standard of review. Ford v. State , 158 S.W.3d 488, 493 (Tex.Crim.App.2005). The trial judge is the sole trier of fact and judge of the weight and credibility of the evidence and testimony. Wiede v. State , 214 S.W.3d 17, 24

– 25 (Tex.Crim.App.2007). The tria l court’s application of the law to the facts is
reviewed de novo

. Ford , 158 S.W.3d at 493. To suppress evidence on an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police condu ct. Ford , 158 S.W.3d at 492. A defendant satisfies this burden when, as here, he establishes “that a search or seizure occurred without a warrant.
Id. If this showing is made, then the burden shifts to the State....” Amador v. State , 275 S.W.3d 872, 878 (Tex.Crim.App .2009) . The State's burden is “to establish that
the search or seizure ... was reasonable. Ford , 158 S.W.3d at 492. In the instant case, the State stipulates this was a warrantless arrest. ( III R.R. at 4 ).9

B. T HE REPORT OF A PERSO N DRIVING BY A RESID ENCE , WITHOUT OTHER E VIDENCE OF ILLEGAL A CTIVITY , IS INSUFFICIENT TO J USTIFY AN I NVESTIGATIVE D ETENTION . It is well

- established that under the Fourth Amendment, a warrantless detention of the person that amounts to less than a full

- blown custodial arrest must be justified by a reasonable suspicion. Terry v. Ohio , 392 U.S. 1, 21

– 22 (1968); s e e also, United States v. Sokolo w , 490 U.S. 1, 7 (1989) (“police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articu lable facts that criminal activity may be afoot, even if the officer lacks probable cause.”) (internal quotation marks omitted); Brown v. Texas , 443 U.S. 47, 51 (1979)

. A police officer has reasonable suspicion to detain a person if he has specific,
artic ulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity. United States v. Sokolo w , 490 U.S. 1, 7 (1989) ; Crain
v. State, 315 S.W.3d 43 , 52 (Tex.Crim.App. 2010) ; Terry v. Ohio, 392 U.S. at 21

– 22 (“the police officer must be able to point to specific and articulable facts which, if taken together with rational inferences from those facts, reasonabl y warrant” an investigative detention, and “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the10

seizure ... warrant a man of reasonable caution in the belief that the action taken was appropriate”). This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. Terry , 392 U.S. at 21

– 22. It als o looks to the totality of the circumstances; the relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular non

criminal acts. Woods v. State , 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). Here, the facts presented by the State do not meet an objective standard that would justify an investigative detention.

C. T HE C OURT OF C RIMINAL A PPEALS IN C RAIN V . S TATE ESTABLISHED THE FACTORS RELIED UPON BY THE OFFICER IN TH IS CASE WERE INSUFFICIENT TO CON STITUTE REASONABLE S USPICION . In Crain, the Appellant was walking late at night in a residential area in which burglaries occurred mostly after midnight. Crain v. State, 315 S.W.3d 43, 53 (Tex.Crim.App. 2010). When Crain saw the police officer's vehicle drive past him, he “grabbed at his waist.” Id. As in this case, the officer acknowledged that he did not have a reason to arrest Crain at that time. Also similar to this case, there was no evidence regarding a specific crime or burglary had occurred or th at Crain was engaged in illegal behavior. The Court of Criminal Appeals held that “[n]either time11

of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion.” Id. The court further held that those factors did not constitute reasonable suspicion. Id. In the instant case, there was nothing in the surroundings of this matter that Appellant was engaged in suspicious or illegal activity and t here is no other indicia of reasonable suspicion on the record

-- the caller reported activity, not criminal activity. There is nothing inherently or objectively suspicious about a vehicle driving on a residential street three times over the course of ten minutes. This proposition is further supported by Officer Galvan’s acknowledgment and testimony that he would need further articulable facts to determine if a crime was going to be committed. ( III R.R. at 29). Here, there were no such facts presented to the tri al court. The Appellant did not drive erratically, he did not look into vehicles, he did not pull into residential driveways and leave

– he simply drove by. ( III R.R. at 27).

D
. T HE FACTS OF THIS CAS E ARE DISTINGUISHABL E FROM OTHER CASES WHERE REASONABLE SUS PICI ON WAS FOUND FOR AN INVESTIGATIVE DETENTION . This case is fundamentally and factually distinguishable from this Court’s holding in Taflinger v. State

. In Taflinger , there was a specific report of wrongdoing

– a store clerk, well

- known to the officer, ob served an intoxicated person driving away from the store. Taflinger v. State, 414 S.W.3d 881, 88412

(Tex.App.

– Houston [1st Dist.] 2013, no pet.). The officer observed the driver driving immediately after the report and believed in good faith that he observed the
driver commit a traffic violation. Id. at 886. Here, in contrast, there was no report of intoxication, erratic driving, or other wrongdoing

– simply driving. Furthermore, the caller in this case did not follow the vehicle, describe any specific wrong doing, did not provide an actual color of the vehicle, and was not known by the officer to
the extent of the clerk in Taflinger. Id.
This case is further distinguishable from Derichsweiler v. State . In
Derichsweiler , the Appellant pulled up in his vehicle next to the Holder family who

were in another vehicle at a McDonald’s drive

- thru

. Derichsweiler v. Sta te , 348 S.W.3d 906, 909 (Tex.Crim.App.2011). He stared at them and was inexplicably grinning directly at them. Id. Appellant then drov e away and repositioned his car to a place where he was directly f acing them and was again staring and grinning at
them. Id. The Appellant drove away yet another time and then suddenly reappeared from behind the Holden family ’s vehicle

. Id. He pulled to the left side of the
Holden’s car, not quite blocking it in. Id. He again began staring and grinning at
them. Id. At the Appellant’s motion to suppress, the Holden’s specifically testified that they felt threatened and intimidated by this conduct. Id. They further felt that they were being “sized up” or “stalked.” Id. They then also observed the Appellant to engage in the same or similar conduct in an adjoining Walmart parking lot. Id. at13

910. They reported the activity to the police and stood by at the scene continuously reporting t he Appellant’s actions to the police and providing them with the make, model, color, and license plate of the Appellant’s vehicle. Id. In contrast, there was no “bizarre” behavior here as it was characterized by the Court of Criminal Appeals in Derichswei ler

. Id. at 917. In the instant matter , there was no description of any specific action, other than ordinary driving, described or reported to the police. There was no action committed by the Appellant against the caller, which was also specifically noted as a factor in the Derichsweiler holding

. Id. The arresting officer in this matter made conclusory statements that Appellant’s actions were suspicious, but there were no specific articulable facts that reasonably support these claims. Additionally, there were no specific descriptions of the vehicle, driver, or license plate of the vehicle that would affirmatively link the vehicle Appellant was driving to the vehicle described by alleged caller.
PRAYER A citizen merely calling the police to report innocuo us activity should not and does not give rise to reasonable suspicion in this matter. There were no exigent circumstances present that would have prevented the arresting officer from investigating further to see if there was any type of criminal activity i nvolved in the citizen’s report. The contours of reasonable suspicion have evolved considerably
since the landmark decision in Terry , but have not extended to the point where14

simply operating a vehicle constitute s a valid reason for an investigative detent ion. For the reasons stated in this brief, Appellant, Taylor Martin Korb, respectfully requests this Court reverse the trial court and remand the case

Respectfully submitted, L AW O FFICE OF D AN K RIEGER 215 E. Galveston St. League City, Texas 77573 (281) 332

- 7630 Tel. (281) 332

- 7877 Fax dan@kriegerlawfirm.com By: /s/ Dan Krieger Dan Krieger State Bar No. 24064243 Attorney for Appellant15 CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft
Word and contains {2number} words, as determined by the computer software's
word

- count function, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Dan Krieger Dan Krieger

CERTIFICATE OF SERVIC E A true and correct copy of the above and foregoing document has been forwarded to the following persons, in accordance with the TEXAS RULES OF APPELLATE PROCEDURE, on the 30t h day of September , 2015 :

Alan Curry Harris County District Attorney’s Office 1201 Franklin Street Houston, Texas 77002

/s/ Dan Krieger Dan KriegerA NO. 01

- 15

- 00512

- CR

____________________ IN THE
COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS

AT HOUSTON

___________________________ TAYLOR MA RTIN KORB, Appellant

v. STATE OF TEXAS, Appellee

______________________ On Appeal from Cause No. 1980492 County Criminal Court at Law Number Three (3)

Harris County, Texas Hon. Natalie Fleming, Presiding

_____________________________ APPELLANT’S APP ENDIX

_____________________________ LIST OF DOCUMENTS

1. Defendant’s Motion to Suppress (CR 23

- 24)

................................ ............... TAB 1 2. Jury Instructions and Verdict (CR 33

- 37)

................................ ..................... TAB 2 3. Trial Court’s Judgment (CR 41)

................................ ................................ ...... TAB 3B TAB 1CD TAB 2EFGHI TAB 3J