Robert Eugene Pritchett v. State
Opinion
ACCEPTED 12-14-00298-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS 1/10/2015 12:03:08 PM
CATHY LUSK
CLERK
Court of Appeals Court Appeals Texas State of Texas Supreme Judicial District
Twelfth Supreme FILED IN
12th COURT OF APPEALS
Texas
Tyler, Texas TYLER, TEXAS _______________________________________________________________
1/10/2015 12:03:08 PM
CATHY S. LUSK
Clerk 12-14-00298-CR 12-14-00298-CR
__________________________________________________________________
Eugene Pritchett
Robert Eugene
Appellant VS. The State of Texas
The
Appellee
____________________________________________________________________
On Appeal from the 273 On 273'“ rd
District Court
San Augustine County, Texas Cause No. Trial Cause CR-13-8411 No. CR-13-8411
_________________________________________________________________________
APPELLANT’ S BRIEF APPELLANT’S BRIEF
_______________________________________________________________________________
Respectfully Submitted, DONOVAN PAUL DONOVAN DUDINSKY
PAUL DUDINSKY
24038869
Texas State Bar No. 24038869 701 South Liberty Street
75972
San Augustine, Texas 75972 275-9871
Tel. (936) 275-9871 Fax. (936)-275-9655 [email protected]
E-Mail: [email protected] ATTORNEY FOR ATTORNEY FOR APPELLANT
APPELLANT
SUBMITTED FOR SUBMITTED FOR REVIEW
REVIEW Argument Not
(Oral Argument Not Requested)
OF PARTIES
IDENTITY OF
I. IDENTITY AND COUNSEL PARTIES AND COUNSEL
The following is a complete list of all parties to the trial court’s judgement The judgement or names and addresses of all trial and appellant counsel: order appealed from, and the names Parties:
Parties: Appellant Eugene Pritchett
Defendant -- Robert Eugene Trial Counsel: Eugene Pritchett
For Defendant, Robert Eugene Donovan Paul Dudinsky Donovan Rudy Valesquez Rudy
Appellate Counsel: Donovan Paul Dudinsky
For Appellant: Donovan
701 South Liberty Street
75972 San Augustine, Texas 75972
Appellee Counsel: Kevin Dutton, District Attorney
Appellee: J. Kevin
For Appellee: Box 714 P. O. Box
75972 San Augustine, Texas 75972
Judge:
Trial Judge: Honorable Judge Charles Mitchell
273”rd Judicial District
75972 San Augustine, Texas 75972
Appellant’s Brief
Eugene Pritchett Robert Eugene Page 2 of 60
II. TABLE OF II. TABLE CONTENTS
OF CONTENTS I.
I. IDENTITY OF PARTIES
IDENTITY OF AND COUNSEL.................2
PARTIES AND COUNSEL ............... ..2 II. TABLE OF
TABLE CONTENTS ............................................. ..3-4
OF CONTENTS...............................................3-4 III. INDEX OF
INDEX OF AUTHORITIES..........................................5-9
AUTHORITIES ........................................ ..5-9 IV. STATEMENT OF
STATEMENT THE CASE......................................11-12
OF THE CASE .................................... ..11-12 V. ISSUES PRESENTED
ISSUES FOR REVIEW.........................13
PRESENTED FOR REVIEW ....................... 13 .. VI. ARGUMENT AND
ARGUMENT AND AUTHORITIES............................14-55
AUTHORITIES .......................... 14-55 ..
~~
VII. STATEMENT OF
STATEMENT FACTS .........................................
OF FACTS........................................... .. Point of Error No. 1.......................................................14 Point of Error No. 2.......................................................18-24 Point of Error No. 3.......................................................32-34 Point of Error No. 4.......................................................36-38 Point of Error No. 5.......................................................44-47
VIII. SUMMARY OF
SUMMARY ARGUMENTS ................................
OF ARGUMENTS.................................. .. Point of Error No. 1.......................................................14-15 Point of Error No. 2.......................................................25 Point of Error No. 3.......................................................34 Point of Error No. 4.......................................................38-39
5 ..................................................... ..47-48 Point of Error No. 5.......................................................47-48
IX. ARGUMENTS ............................................................
ARGUMENTS.............................................................. ..
........
.. 15-18 Point of Error No. 1.......................................................15-18
........ ..25-31 Point of Error No. 2.......................................................25-31
........ ..34-36 Point of Error No. 3.......................................................34-36
~
4 ..................................................... ..39-44 Point of Error No. 4.......................................................39-44
5 ..................................................... ..48-55 Point of Error No. 5.......................................................48-55
X. CONCLUSION ........................................................... ..56-57
CONCLUSION.............................................................56-57 Appe11ant’s Brief Appellant’s
Eugene Pritchett Robert Eugene Page 3 of 60 XI. PRAYER .................................................................... .58
PRAYER......................................................................58
. XII. OF SERVICE.....................................58
CERTIFICATE OF CERTIFICATE SERVICE ................................... ..58 XIII. CERTIFICATE OF
CERTIFICATE COMPLIANCE .......................... ..58
OF COMPLIANCE............................58 XIV.
XIV. APPENDIX ................................................................. ..60
APPENDIX...................................................................60 Appe11ant’s Brief Appellant’s
Eugene Pritchett Robert Eugene Page 4 of 60
OF AUTHORITIES
INDEX OF
III. INDEX AUTHORITIES FEDERAL CASES:
FEDERAL CASES:
Giglio v. United States,
v. United States, 405 405 U.S.US. 150,150, 154,
154, 92 S.Ct S. Ct 763,
763, 766, 31 L.Ed2d 766, L.Ed2d 104 (1972)(I972)
154 ..................................................................................... ..I5, 26, Giglio at 154.......................................................................................15, 28
26, 28 United States v. United v. Agurs, 427 U.S.
Agurs, 427 US. 97, I12, 96
97, 112, 96 S. Ct.2329,
S.Ct.2329, 2401, 49 L.Ed2d 2401, (I976) ............................................................. ..I5, 16,
L.Ed2d 342 (1976)...............................................................15, 16, 17 Weatherford v. Weatherford v. Bursey,
Bursey, 429 US. 545,
429 U.S. 545, 97 97 S.Ct 83 7,
S. Ct 837, 51 L.Ed2d 30 (1977)...........................................................................16
L.Ed2d 30 (197fl ......................................................................... ..16
v. MaQland,373 Brady v. US. 83,
Maryland,373 U.S. 83, 83 S.Ct. 1194,
S. Ct. 1194, 10L.Ed2a'215 (1963) ....................................................................... ..I6 10 L.Ed2d 215 (1963).........................................................................16 United States v. United v. Bagley,473 US. 667,
Bagley,473 U.S. 667, I05 S.Ct.3375, 105 87L.Ed2a’481(I985)
S.Ct.3375, 87 L.Ed2d 481 (1985)................................................16, 17,30
.............................................. ..16, 17, 30 Kyles v. Whitley 514
v. Whitley, US. 419,
514 U.S. S.Ct.1555, 419, 115 S.Ct.1555,
I31L.Ed2d 490 131L.Ed2d 490 (1995)........................................................................17,
(1995) ...................................................................... ..1 7, 18, 26
I8, 26 Higgs, 713 F.2d Higgs, 713 42 ....................................................................... ..26
F.2d at 42.........................................................................26 Alcortav v. Texas, 355 U.S.
v. Texas, US. 28, 28, 31,
31, 78 78 S.
S. Ct. 103, 105,
Ct. 103, I05, 2L.Ed2d 9 (1957)................................................................................28 2L.Ed2d (1957) .............................................................................. ..28 United States v. United Gengler, 574,
v. Gengler, 574, F. 2d. 730,
F. 2d. 730, 735735 (3d Cir. 1978) .................................................................................. ..28
Cir. 1978).....................................................................................28 South Dakota
Dakota v. Ogggerman, 428
v. Oppperman, US. 364,
428 U.S. 364, 96 96SS Ct. 3092,
Ct. 3092, 49L.E.2dI000 49 (I976) ...................................................................... ..40,41,
L.E.2d 1000 (1976)........................................................................40, 51
41, 51 Appe11ant’s Brief Appellant’s
Eugene Pritchett Robert Eugene Page 5 of 60 Cady v. Cady v. Dombrowslgy, US. 433,
413, U.S. Dombrowsky, 413, 433, 93 S.Ct. 2523,
S. Ct. 2523, 37L.Ed.2d 37 706 (1973)..........................................................................41 L.Ed.2d 706 (1973) ........................................................................ ..41
V. New Coolidge v. New Hamgshire, US. 433,
Hampshire, 403 U.S. 433, 461, 461, 91 S.Ct.
S.Ct. 2022,2035, 29 L.Ed.2d 564 2022,2035, 29 564 (1971)........................................41
(1971) ...................................... ..41 Brendlin v. California, 551
v. California, US. 249,
551 U.S. 249, 127I27S.Ct. 2400,
S.Ct. 2400, 132 (2007).......................................................................49 168 L.Ed.2d 132 (2007) ..................................................................... ..49
v. Hodari California v. Hodari, 499 US. 621,111,
499 U.S. 621,111, S.Ct S. Ct 1547,
1547, 113 L.Ed.2d 690 (1991).......................................................................49
(1991) ..................................................................... ..49 New York v. New York v. Belton US. 454,
452, U.S. Belton, 452, 2860,
454, 101 S.Ct 2860,
69 L.Ed. (1981) ........................................................................... ..50 L.Ed. 728
v. Gant, 556 U.S.
US. 332,332, 129 S.Ct. 1710,
S.Ct. 1710, Ld.2d 47 A.L.R. 485
A.L.R. Fed.2d 657 657 (2009) Gant at 1723........................................................................................50 Gant I 723 ...................................................................................... ..50 STATE CASES:
STATE CASES:
Thomas v. Thomas v. State, 841 S.W. 2.d
State, 841 SW 2d 399, 399, 404 404 (Texas Crim. Crim. App.App. 1992) 841, S.W2dat ana'84I, and S.W.2d at 403........................................................................26, 30
403 ...................................................................... ..26, 30 Garza v. v. State, 137 S.
State 137 W301 878,
S. W.3d (Tex./lpp.-Houston
878, 882 (Tex.App.-Houston st
[1‘” [1 Dist.
Dist.]] 2004, pet. Ref
2004, pet. Ref’d)..................................................................40
’d) ................................................................ ..40 Collins v. S. W.2d 890
State 630 S.W.2d v. State, 890 (Tex.App. I982 pet.
(Tex.App. 1982 ref’d) ............ ..41, 54
pet. ref’d)..............41, Sandal v.
v. State,
State, 253 S. W261 283 (Tex.Cr.App. 1952)..........................41,
253 S.W.2d (Tex. Cr.App. 1952) ........................ ..4I, 54 Broughton Broughton v.
v. State,
State, 643 S. W.2d 147
S. W.2d 147 (Tex.App. 1982 no.
(Tex.App. 1982 pet.)..........41,
no. pet.) ........ ..4I, 54 Gauldin v. State 649 S.
v. State, W.2d 411 (Tex.Cr.App.
S. W.2d 1984) .................... ..42, 54
(Tex.Cr.App. 1984)......................42, Appe11ant’s Brief Appellant’s
Eugene Pritchett Robert Eugene Page 6 of 60 Pearson v.
v. State,
State, 649 S. W.2d 786
S. W.2d 786 (Tex.Cr.App. 1983, pet. (Tex. Cr./lpp. 1983, ref’d) ........................................................... ..42, 54
pet. ref’d).............................................................42, Evers v. S.W.2d 46
State 576 S.W.2d v. State, 46 (Tex.Cr.App. 1978)...........................42,
1978) ......................... ..42, 52,
52, 54,
54, 55 Benevides v. 600 S.
State 600 v. State, S. W.2d 809 (Tex.Cr.App.
W.2a’ 809 (Tex. Cr.App. 1980)..................42,
I980) ................ ..42, 52,
52, 54 Christian v. 592 S.
State 592 v. State, W.2d 359 S. W.2d 359 (Tex.Cr.App.
(Tex. Cr.App. 1980)...................42,
I980) ................. ..42, 52 Daniels v. S. W.2d 809
State 600 S.W.2d 12. State, 809 (Tex.Cr.App.
(Tex. Cr.App. 1980).......................42
I980) ..................... ..42 Eugene Redmond
Jonathan Eugene Redmond v. 05-09-01461-CR)
v. State, (No. 05-09-01461-CR) 2011) .................................................................. ..43 (Tex.App. -— Dallas 2011)....................................................................43 Maybergg Mayberry v. 830 S.
State 830 v. State, W.2d 176,
S. W.2d 176, 180I80 (Tex.App. - Dallas 1992,
1992, pet. (Tex.App. — ref ’d) ................................................. ..43
pet. ref’d)...................................................43 Tex.R.APP.Ann 81(b)(2). Pamp.
Tex.R.APP.Ann Pamp. 1989..............................................44
1989 ............................................ ..44 Gauldin v. State 683 S.
v. State, W.2d at 415.................................................44 S. W.2d 415
v. State, 785 S.
State, 785 W.2a’ 443 (Tex.App.-
S. W.2d (Tex.App.— Austin 1990)...............44,
1990) ............. ..44, 52 Russell v. 7I7S.
State 717 v. State, W261 7,
S. W.2d 7, 9, I986) .................... ..49
9, (Tex.Cr.App 1986)......................49 Telshow v.
V. State, 964 S.
State 964 W.2a’ 303,
S. W.2d 307
303, 307
(Tex.App.- Houston [I4"’ th Houston [14 Dist.] 1998[998 no pet.) pet.)..................................49
................................ ..49 White v. White 871 S.
State 871 V. State, W.2d 833,
S. W.2d 836-37
833, 836-37
(Tex.App. - Houston th (Tex.App. - [14"’ Dist.] 1994,
Houston [14 1994, no pet.) pet.)...............................49
............................. ..49 Higlzwarden Highwarden v. v. State,
State, 864 S. W.2d 479,
864 S.W.2d 479, 481 && n. n. (Tex.App. -- Houston [I4’h Dist.] 1993) dism ’s as th (Tex.App. Houston [14 I993) pet.
pet. dism’s irnprovidently granted, improvidently granted, 871 W.2d 726 (Tex.Cr.App.
871 S. W.2d (Tex.Cr.App. 1994).........49
1994) ....... ..49 Appe11ant’s Brief Appellant’s
Eugene Pritchett Robert Eugene Page 7 of 60 Nottingham v.
v. State, 908 S.
State, 908 W.2d 585
S. W.2d 1995) ....................................................................... ..49 (Tex.App.- Austin 1995).........................................................................49 Medford Medford v.
v. State,
State, 13 S. W.2d 769
S. W.2d 769 (Tex.Cr.App. 2000) ........................ ..49
(Tex. Cr.App. 2000)..........................49 Granados v. Granados v. State S. W.3d 217
State, 85 S.W.3d 217 (Tex.Cr.App. 2002) ...................... ..50
(TeX.Cr.App. 2002)........................50 Gill v. State 625 S.
v. State, W.2d 307,
S. W.2d 319 (Tex.Cr.App.
307, 319 (Tex. Cr.App. 1980)........................51
1980) ...................... ..5I Delgado Delgado v.
v. State, 718 S.
State, 718 W.2d 718,
S. W.2d 721 (Tex.Cr.App.
718, 721 1986) .............. ..5I
(Tex.Cr.App. 1986)................51 Backer Backer v. 656 S.
State 656 v. State, W.2d 463 (Tex.Cr.App.
S. W.2d (Tex. Cr.App. 1983)...........................52
1983) ......................... ..52 Mayhood Mayhood v.
v. State, 699 S.
State, 699 W.2d 873,
S. W.2d 874
873, 874
(Tex.App. 1984 pet. (Tex.App. 1984 pet. Ref’d)
Ref’d)......................................................................54
.................................................................... ..54 State v.
V. Giles, 867 S.
Giles 867 W.2d 105,
S. W.2d I08
105, 108
(Tex.App. - El Paso, (Tex.App. - Paso, pet, ref’d) ............................................................. ..55 pet, ref’d)...............................................................55 Statutes 1 4”’ Amendment United States Constitution...............................13, 26 th 14 of the United
Amendment of Constitution ............................. ..13, 26 44"’Amendmentofthe th
UnitedStates Amendment of the United Constitution ............................... ..13, 36,
States Constitution.................................13, 39,40, 41
36, 39,40, Texas Transportation Code Code 544.010 Subparagraph
Subparagraph ((c) c) ............................................................................13, .......................................................................... ..13, 19,
19, 20, 25,26, 32,33,
20, 25,26, 32,33, 34,
34, 35 9 ....................... ..13, 19,
Texas Constitution Article 1 Section 9.........................13, 19, 25,
25, 36,
36, 39,
39, 48,
48, 55,56 Code of Code Criminal Procedure Article 39.14..........................................17 ofCriminal 39.14 ........................................ ..17 Code of Code Criminal Procedure Article 2.01...........................................17 ofCriminal 2.01 ......................................... ..17 ofEvidence Texas Rules of 803 (6).........................................................18
Evidence 803 (6) ....................................................... ..18 Appe11ant’s Brief Appellant’s
Eugene Pritchett Robert Eugene Page 8 of 60
0fEvidence Texas Rules of Evidence 902 (10).........................................................18
(1 0) ....................................................... ..I8 Texas Rules of Civil Procedure
0fCivil 21a ................................................... ..18
Procedure 21a.....................................................18 Leg. H Leg. H. Stat.
Stat. 1995 74'”
74 th
Leg.
Leg. Sess.
Sess. Chapter 165, 165, effective September 1, I995 ................................................................ ..20, 35
I 1995..................................................................20,
, Code of
Texas Code Criminal Procedure 38.23 ((a)
0fCriminaZ a )...................................38,
................................. ..38, 39,
39, 48 Appe11ant’s Brief Appellant’s
Eugene Pritchett Robert Eugene Page 9 of 60
Case No. 12-13-00298
Case CR
12-13-00298 CR
THE IN THE
IN
COURT OF COURT OF APPEALS
APPEALS
TWELFTH SUPREME TWELFTH SUPREME JUDICIAL
JUDICIAL DISTRICT
DISTRICT
TEXAS
TYLER, TEXAS TYLER,
****************************************************************** ******************************************************************
ROBERT EUGENE
ROBERT EUGENE PRITCHETT
PRITCHETT
Appellant
V.
THE STATE THE OF TEXAS
STATE OF TEXAS
Appellee
****************************************************************** ******************************************************************
On Appeal On From the 273
Appeal From 273"‘ rd
Judicial District ~.w:s:~.w.-*9:9:4:9:*9:9:9:9:9:*9:*:':9:*9:9:*9:9:*9:9::':9:9::':9:9:
************************************
TO THE TO HONORABLE JUDGES
THE HONORABLE JUDGES OF
OF SAID COURT:
SAID COURT:
Comes now Robert Eugene Comes now Eugene Pritchett, Defendant in a proceeding in the 273
273'“ rd of San Augustine County, Texas and desiring to prosecute an
Judicial District Court of appeal from his conviction in that proceeding, respectfully submits this brief in appeal of Eugene Pritchett will be by of same. For clarity, reference in this brief to Robert Eugene by “Appellant” and reference to the State of Texas will be by “Appellant” “Appellee” unless the by “Appellee” context or consideration of style dictate otherwise.
Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
10 of Page 10
STATEMENT OF IV. STATEMENT THE CASE OF THE CASE
On the 44”‘th day of August , 2014 On , 2014 a Motion To Suppress (Evidence Obtained
Motion To From Illegal Detention and Illegal Impoundment From Impoundment and Inventory) was was filed
filed with the Court by by Appellant’s attorney. See Appendix “A”.
Appendix “A”.
On the 44‘“th day of August, 2014, before presiding judge Hon. Charles Mitchell On
273“rd District Court of San Augustine County, Texas, San Augustine, presiding in the 273 commenced on the was selected and sworn and empaneled and a trial commenced
Texas, a jury was of the felony prosecutor’ merits of Eugene Pritchett, prosecutor’ss case against the Defendant, Robert Eugene who and being accused of committing two who two felony offenses of of and pertaining to Zone and Tampering
Possession of a Controlled Substance in a School Zone Tampering with Evidence.
Evidence.
On the 55”‘th day of August, 2014, the case went On went to jury deliberation and the jury which and finding eventually returned verdicts in which finding Defendant guilty of of Possession of finding Defendant Not of a Controlled Substance and finding Tampering with of Tampering Not Guilty of
Evidence.
Evidence.
On September 10, On 10, 2014, the Defendant and counsel appeared at the punishment punishment phase of the trial and the court assessed punishment consisting of Defendant being
five years and Defendant ordered community supervision for a period of five placed on community Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
11 of Page 11 to pay amount of pay a fine in the amount of $3,000.00 and Defendant ordered to pay pay a restitution amount of $140.00. amount “B” “Judgement
Appendix “B” $140.00. See Appendix “Judgement of By Court”. of Conviction By of the punishment hearing counsel for Defendant Immediately after the conclusion of filed the Trial Court’s Certification of Defendant’s Right of Appeal. filed Appendix
Appeal. See Appendix “C”.
“C”.
On October 7, 2014, counsel for Defendant filed Defendant’s Written Notice On of Appeal. of Appeal. See Appendix “D”. This case is proper before this Honorable Court.
Appendix “D”.
Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
12 of Page 12 PRESENTED FOR
ISSUES PRESENTED
V. ISSUES REVIEW FOR REVIEW
POINT OF POINT ERROR 1.
OF ERROR The State has a constitutional duty The under the due dutv under due process clause or the Amendment to disclose any
Fourteenth Amendment anv material evidence that is favorable to defense.
POINT OF POINT ERROR 2.
OF ERROR was denied due Appellant was due process of law when the State agents, The law when The City
Citv Department destroyed and
San Augustine, Texas, Police Department of San and or failed to
Exculpatorv evidence of a video/ preserve Material Exculpatory Video/ audio recording of the
Impoundment and Alleged Traffic Violation, Detention, Impoundment and Inventory
Inventorv search form the basis of the conviction. of the Appellant that form
POINT OF POINT ERROR 3.
OF ERROR The trial court abused The abused its discretion sustaining prosecution’s prosecution’s objection obiection to motion to read defense motion read into the record the relevant section of the
Code for the jury’s Transportation Code understanding as it applies to motorist iurv’s understanding stopping at intersections.
POINT OF POINT ERROR 4.
OF ERROR were violated under Appellant’s Constitutional Rights were under the Fourth
Fourth Amendment of the United States Constitution and Amendment and Article I,
1, Section 9 of when the reasonable alternatives that were
Texas Constitution when the Texas were impoundment were available to impoundment were not implemented. implemented.
POINT OF POINT ERROR 5.
OF ERROR The inventory The was an inventorv search of Appellant’s vehicle was an illegal unconstitutional
Violation of Article 1, Section 9 of the investigative search for evidence in violation Texas Constitution.
Texas
Appel1ant’s Brief Appellant’s Robefi Eugene Robert Eugene Pritchett of 60
13 of Page 13
ARGUMENT AND
VI. ARGUMENT AND AUTHORITIES AUTHORITIES
POINT OF POINT ERROR NO.
OF ERROR NO. 1 The State has a constitutional duty under The under the due due process clause or the Amendment to disclose any
Fourteenth Amendment any material evidence that is favorable to defense.
STATEMENT OF VII. STATEMENT OF FACTS
FACTS The foregoing statements of The of facts are incorporated herein by by references for all purposes. subpoena. purposes. Facts regarding non-response to defense counsel’s subpoena.
On July 8, 2014, defense counsel submitted a subpoena to the San Augustine On copy of the established written specifically requesting an authentic copy
Police Department specifically impoundment procedure and production policy governing the department’s rules of impoundment of film of of authentic copies of the audio/visual film of the officer’s off1cer’s pursuit prior to and during (RR: Vol. 3, P. 75)
Appellant’s detention. (RR:
SUMMARY OF VIII. SUMMARY ARGUMENT OF ARGUMENT
Under established Texas law, the failure to turn over material, exculpatory Under evidence is a violation of due process, regardless of whether the State acted in bad who arrested Appellant, testified that he thought the officer who faith. In this case, the officer police department had an established policy governing impoundment; but he was was him in court. The copy with him unsure because he did not have a copy The officer officer further testified Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
14 of Page 14 was activated and recording to having a video camera in his patrol unit that was Appellant’s vehicle as the officer officer pursued/followed the Appellant. The officer
The officer testified that he stopped Appellant for not stopping at a designated point at a stop sign officer testified at an intersection, and the officer testified that Appellant had also improperly stopped in the middle of the intersection. intersection. Appellant argued in defense of officer’s reason for the stop based upon upon the traffic code, and Appellant argued in defense of the video the was lost pursuant to a computer crash. The officer maintained existed but was The video was material, exculpatory evidence of the following/pursuit of Appellant was recording of was a violation of Appellant’s due process rights. and the failure to preserve it was
ARGUMENT IX. ARGUMENT
Exculpatory evidence includes material that goes to the heart of the defendant’s which might well alter the jury’s guilt or innocense as well as that, which jury’s judgement of the judgement of credibility of a crucial prosecution witness. Giglio v. United States,
v. United 150,
States, 405 U.S. 150, L.Ed2d 104
31 L.Ed2d
154, 92 S.Ct 763, 766, 31 154, 104 (1972). Evidence impeaching the testimony when the credibility of the witness may of a government witness is exculpatory when of may be determinative of criminal defendant’s guilt or innocence. Qglg at 154. innocence. Giglio 154. If
If the doubt” as to the defendant’s culpability, exculpatory evidence “creates a reasonable doubt”
United States v. it will be held to be material. United v. Agurs, 427 U.S. 97, 112,
Agurs, 427 112, 96 S.Ct.2329, Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
15 of Page 15
2401, 49 L.Ed.2d 342 (1976).
San In this case, defense counsel submitted a subpoena to the custodian of San thirty-five days before the trial held on Augustine Police Department on July 8, 2014, thirty-five
At trial, Officer August 4, 2014. At Officer Brazeal testified was in charge of testified that he was of which included handling subpoenas received at the department. administrative duties which department. The officer admitted that he received a subpoena requesting the department’s The impoundment policy and other production. The impoundment was told
The officer further stated that he was by the district attorney’s office not to release information. (RR: by (RR: Vol. 3, P. 75, 76, 77,
1-25, 1-8).
L. 8-25, 1-25, The district attorney’s rebuttal closing alluded to the code of
1-8). The of was not in criminal procedure regulating discovery claiming defense’s subpoena was no consequence. conformance therewith and therefore, seemingly, of no consequence. (RR: Vol. 3,
109,110, P. 109, 11-25,1-13).
110, L. 11-25, 1-13).
Weathertord v. There is no general right to discovery in criminal cases. Weatherford v. 429 U.S. 545, 97 S.Ct 837, 51
Bursey, 429 l3u_11ve_y, L.Ed2d 30 (1977). However, the State has a
51 L.Ed2d
Due Process Clause of the United States Constitution constitutional duty under the Due any material evidence that is favorable to the defense for to disclose to defendant any trial or a sentencing hearing. Brady v. Magyland
Brady v. 10 Maryland, 373 U.S.83, 83 S.Ct .1194, 10 United States v.
L.Ed.2d 215 (1963); United v. Agurs, 427 U.S. 97, 96 S.Ct.2329, 49 L.Ed.2d
Agurs, 427
Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
16 of Page 16
v. Bagley
342 (1976); United States v. 105 S.Ct.3375, 87 L.Ed.2d
Bagley, 473 U.S. 667, 105
48l(l985); Kyles v. 481(1985); 115 S.Ct. 1555,
Whitley 514 U.S. 419, 115 v. Whitley, 1555, 131 490 (1995).
131 L.Ed.2d 490 makes This standard of materiality applies regardless of whether the defense makes specific request for certain material, a general request for discoverable material, or a specific no request for disclosure of favorable evidence. Although the Court’s opinion in was a plurality opinion, a majority adopted this approach in Kyles. Bagley was Kyles. Knowledge of Knowledge of materially favorable evidence in law enforcement files known to law
files or known officers is imputed to the prosecutor. enforcement officers prosecutor. Therefore, a constitutional when the prosecutor is unaware violation can occur when unaware of evidence in law enforcement files. Id. files. Id.
The prosecutor insisted at trial that because defense didn’t follow or adhere to The
Code of Criminal Procedure Article 39.14 discovery pursuant Code specific article
39. 14 (through specific was not entitled to release nor receipt of information not referenced in court), defense was requested. (RR: Vol. requested. P. 109, 110,
3, P.109, ll-15,1-13).
110, L. 11-15, 1-13).
The Code of The Code of Criminal Procedure Article 2.01
2.01 refers to the duties of the district attorney. of all prosecuting attorneys, including any “....[I]t shall be the primary duty of special prosecutors, not to convict, but to see that justice justice is done. They shall not Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
17 of
Page 17 of the suppress facts or secrete witnesses capable of establishing the innocence of accused.”
Defense’s subpoena included request for certain business records of the police impound policy was department and request for information particularly pertaining to impound was
Tex.R.Evid. 803(6) without a requested and intended to be introduced at trial under Tex.R.Evid. sponsoring trial witness through the use of an affidavit as provided for in the would have been given to prosecution Tex.R.Evid.902( 1 0), and notice of introduction would Tex.R.Evid.902(10), pursuant to Rule 21a Tex.R.Civ.Pro. At least 14
Tex.R.Civ.Pro. At commencement of
14 days prior to the commencement “Knowledge of materially favorable evidence in law enforcement files the trial. “Knowledge files or known to law enforcement officers is imputed to the prosecutor.” Kyles, known Kyles, Supra.
Defense counsel’s subpoena sought to legally discover business records may have been pertinent and material to defense; and admit such information that may evidence under the Texas Rules of Evidence pursuant to the Texas Rules of Civil
The decision to deny defense’s subpoena in behalf of Procedure in a criminal trial. The was a violation of Appellant’s the accused was Appe11ant’s due process rights.
POINT OF POINT ERROR NO.
OF ERROR NO. 2 was denied due Appellant was due process of law when the State through law when San through its agents, San Department destroyed and
Augustine Police Department Augustine and or failed to preserve Material Exculpatorv evidence of a video/ audio recording of the Alleged Traffic Exculpatory Traffic
Impoundment and Violation, Detention, Impoundment and Inventory search of the Appellant that Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
18 of Page 18 form the basis of the conviction. form
STATEMENT OF VII. STATEMENT OF FACTS FACTS
The night of The November 24 of Thanksgiving November th
24”‘, , 2011, around 8:52 pm, pm, in the City of San Augustine, Texas. of Texas. Office Sowell testified that his digital video, recorded the following of the Appellant’s vehicle through a residential neighborhood for over a half a mile. Officer Sowell alleged the Appellant stopped improperly at the half of Hospital Street and North intersection of Milam Street, that lead to the detention and
North Milam arrest of the Appellant for failure to display driver licence and subsequent impoundment and inventory search of Appellant’s vehicle. impoundment made an objection on the admissibility of the evidence. Appellant’s Attorney made
The roadside detention was The Code 544.010, was in violation of the Transportation Code 544010, Subparagraph (( c );
); and it it violated Article 1, of the Texas Constitution.
1, Section 9 of
The Court: The Therefore, the evidence the State is trying to offer is inadmissible. The The was overruled. (RR: Vol. 2, Page 32, Lines 4-13). objection was
The Appellant argues that the arresting Officer had no probable cause or The reasonable suspicion to stop the Appellant. Appellant argues he stopped properly at
The Appellant stopped properly the intersection of the alleged traffic violation. The
Code 544.010 -- Stop The Texas Transportation Code, relevant section of Code according to The Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
19 of Page 19
An operator required to stop by Signs and Yield Signs -- Subparagraph (( c )) An by this section shall stop before entering a crosswalk on the near side of the intersection. intersection. In marked line. In the of a crosswalk, the operator shall stop at a clearly marked the absence of of a stop line, the operator shall stop at the place nearest the intersecting absence of roadway where the operator has a view roadway where on the intersecting
View of approaching traffic on roadway.” Leg. H. Stat. 1995 74”‘
1995 74 th
Leg. Sess. Ch. 165,
165, effective September 1, 1995.
1, 1995. Officer Sowell’s testimony, Officer
In Officer Officer declined to answer important questions
Officer Sowell’s reference to the vital to the defense, without referring the video. Officer on cross examination, without the video, video and his inability to answer questions on shows the video contained exculpatory evidence which shows was vital to the defense, which was which violated Appellant’s due process and a right to a fair trial. which
The foregoing statement of fact are based on The on trial court testimony of the San
San
Officers.
Augustine Police Department, Police Officers.
The State’s Attorney in direct examination of Officer The Officer Jonathon Sowell.
Sowell. Do you
Q. Do Q. remember what you remember was wearing that night? what Mr. Pritchett was would have to review video. It’s been nearly three years and -- -— A. No, Sir. I would Q. All right.
RR: Vol. 2 p.44, L. 17-22 States Attorney: II pass the witness. (( RR: 17-22 ).
). Appellant’s Brief
Appel1ant’s Attorney begins cross examination of Appellant’s Officer Sowell. of Officer Sowell. (RR: Vol. 2, P. 45).
Q. Okay. Now, Q. him on the hunch, did you you were following him Now, while you you have a video going‘? going? was going.
Video was
A. Yes, sir, video you have a video Q. So you we could see regarding your following him?
Video that we him? O.>@.> A. No, sir, sir, I
I do not.
You didn’t have a video of the following? Q. So I guess the answer is: You
Our computer hard drive crashed at the police department and lost was going. Our
A. It was
(RR: Vol. 2, P. 73, L. 6-17) Video. (RR: the video.
Appendix No. Officer Sowell looking at defense Exhibits 3, 4 and 5. Appendix “E”.
No. “E”. would be a line, and that is your designated stop point, the white line.
A. -- -- There would I’m my video I’m unsure without my Video if was actually present at that night.( RR: if that line was RR: Vol. 22-24).
2 p.75, L. 22-24 ). show you. was a video I could show
A. -- -- II wish there was we don’t have a video, Q. But we we?
Video, do we?
And I’m
A. And I’m sorry about that. But
But -- -- ((RR:
RR: Vol. 2 p.77, L. 3-10 ).
). Q. At Q. when he said he didn’t have his driver’s license -- --
At the time when Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
21 of Page 21 l’m not sure about the time frame on
A. I’m would have to have the video or it on that. II would it would my report. But would have to be stated in my RR: Vol. 2 p.80, L. 11-15
But -- -- (( RR: 11-15 ).
). we can’t show
Q. But we Q. members of the jury where show members where you you claim he stopped, can you? A. Not Video, no, sir. ((RR:
Not without the video, 13-15 ).
RR: Vol. 2 p.82, L. 13-15 ).
At that point in time, you
Q. At him if you you ask him you can search his vehicle. It’s not in your report. report. l’m asking you
I’m you -- -- Then II can’t -- -- without a video
A. Then l’m not going to testify to that question. Because
Video I’m l’m unsure, sir. Like you I’m RR: Vol. 2 p.84, you said, that’s been nearly three years ago. (( RR: 15-20 ).
L. 15-20 ).
The audio portion contained in the video, you The you could have heard Officer Sowell asking Appellant to search his vehicle. where you
Q. But being the general vicinity where Q. you pulled the vehicle
Vehicle over? A. Yes, sir -- -- Q. -- -- it was on it was on video -- -- where he was you exactly where
A. If I had a video, II could point you RR: Vol. 2 was stopped. (( RR: 1-5). p.90, L. 25 and p. 91, L. 1-5 ).
I’m unsure. It was A. I’m was stopped. But l’m unsure that it was
But I’m was on on a curve or in the road. would not know.
Without video II would RR: Vol. 2 p.91, L. 16-18
know. (( RR: 16-18 )) . . Appellant’s Brief
The video would The show that the Appellant’s car was would clearly show was properly parked would also The video would along this portion of Hospital Street, the place of detention. The show that this portion of Hospital Street is straight. clearly show
States Attorney redirects examination of Officer Sowell. comment about the video crashed the video not being available? Been a lot of comment
Q. Been A. Yes. Sir.
The video not being available, being destroyed, being lost, being cyberspace, Q. The being wherever it away from it goes then they crash, that does not take anything away from the what you truth or veracity of what you put in your report?
A. No, Sir.
IIhave have no further questions. `( RR: Vol. 2 p.l
‘( RR: p.112,
12, L. 25- p. 113, 1-8 )).. ll3, L. 1-8 Appellant’s Attorney begins re-cross examination of Officer Sowell. where it Q. There is no video of where it is alleged he parked wrongfully in an intersection. True or not true? true‘?
(RR: Vol. 2, P. 114,
A. True, there is no video. (RR: 114, L. 7-9)
The State called Officer James Blackwell as there next witness. The ofOff1cer Appellant’s Attorney begins cross examination of Officer Blackwell on the video issues.
Appellant’s Brief
We have here is so-called crime scene, and it’s not normal to take what we
Q. Okay. So what pictures? would be a video from the patrol car recording the entire A. Well, there generally would scene, documenting everything real time. (RR: Vol. 3, P. 43, L. 9-13)
Do you have any idea whether Officer Sowell logged the videotape on Q. Okay. Do on his patrol car into evidence?
A. No, sir, I was sir, because I was on an antique system. II was VHS, so II had to was using VHS, manually take the tape out and submit it was digital, and I have no it as evidence. His was what he did with it. idea what 1-3)
it. (RR: Vol. 3, P. 53, L. 23-25, P. 54, L. 1-3) The State’s Attorney then calls his next Witness, Sargent Shannon The Shannon Brazeal. no question concerning the destroyed video. had no
States Attorney had Appellant’s Attorney begins cross examination of Sargent Braziel. Back in 2011
Q. Okay. Back 2011 did y’all use videotape or digital?
We had a mixture of both. We A. We We had one vehicle that ran -- -- still had the old system
VHS tape. Everything else was had VHS that had was saved digitally to a card.
Do you Q. Okay. Do know What you know Officer Sowell’s video? what happened to Officer We had a computer crash, unrecoverable.
A. We We tried to recover what unrecoverable. We we could not what we
(RR: Vol. 3, P. 74, L. 13-22) get that back that far. (RR: 13-22) Appellant’s Brief
SUMMARY OF VIII. SUMMARY ARGUMENT OF ARGUMENT
Under the U.S. Constitution, a criminal defendant will have a meaningful Under
Consequentially, the destruction or failure opportunity to present a complete defense. Consequentially, of due process regardless of whether to preserve exculpatory evidence is a violation of or not it it is done in bad The State never developed or proved that the San bad faith. The Augustine Police Department even has a written Standard Policy to preserve a video. The totality of The of the circumstances in this case establish bad faith on behalf of the San which Augustine Police Department to either destroy or fail to preserve the video, which
The Video/Audio recording of the self-defense. The could establish Appellant’s right to self-defense. traffic stop, Detention and the Inventory Search contained exculpatory Alleged traffic evidence and the failure to preserve it was done in bad it was bad faith, violating Appellant’s due process right.
ARGUMENT IX. ARGUMENT made an objection on the admissibility of Appellant’s Attorney made of the evidence: The roadside detention was The Code was in violation of the Texas Transportation Code 544.010, Subparagraph (( c );
); and it it violated Article 1, of the Texas
1, Section 9 of Constitution. Therefore, that evidence trying to offer is inadmissible. Constitution. (RR Vol. 2, P. inadmissible. (RR 32, L. 5-8) Appellant’s Brief Court: Objection overruled.
The Appellant argues that he stopped properly at the intersection of the alleged The
The Appellant stopped properly according to Section 544.010 violation. The traffic violation. of the Texas Transportation Code. subparagraph (( c )) of of the defendant’s Exculpatory evidence includes material that goes to the heart of which might well alter the jury’s judgement guilt or innocence as well as that, which judgement of the of a crucial protection witness. Giglio v. credibility of 150, 154,
v. United States, 405 U.S. 150, 154, 104 (1972) Higgs, 713 F.2d at 42. 31 L.Ed.2d 104
92 S.Ct. 763,766, 31
Amendment is violated when Due Process Clause of the Fourteenth Amendment
The Due The when a which creates a prosecutor fails to disclose evidence that is favorable to the accused which sufficient to undermine confidence in the probability sufficient outcome of the proceedings. outcome proceedings. Thomas V.
See, e.g., Thomas SW2d 399, 404
841 S.W.2d V. State, 841 404 (Tex. Crim. App. 1992).
1992). The member of The duty to disclose extends to evidence in the possession of any member of team”. See , e.g. Kyles V. the “prosecution team”. ,
V. Whitley, 115 S. Ct.
Whitley, 514 U. S. 419, 437, 115 1555, 1567, 1555, 1567, 131 2d 490
131 L. Ed. 2d 490 (1995). (“the individual prosecutor has a duty to learn known to the others acting on of any favorable evidence known of on the government’s behalf in the case, including the police”). police”).
The Appellant’s Attorney received a letter via fax Dated July 31, 2014, four The
Appellant’s Brief
The letter stated, In preparing the above cases for of the trial. The days before the start of this trial it has come my attention that there was come to my made on was a video made on the night of of the My office has never received this video and in following up with the police stop. My was stored on a computer at the police department have found out that the video was no longer available. department and the computer crashed and the video is no about the video.
Trial testimony about
On August On August 4, 2014, during trial, the arresting Officer
Officer Sowell testified on prosecution direct examination. No, sir. I would Then on would have to review video. Then on cross examination it was developed that the arresting Officer Sowell had a video it was recording of the incident, starting from the following of Appellant’s vehicle thru the impound and inventory search. Then, seven more traffic violation, detection, impound alleged traffic more examination, the arresting Officer’s answers were, “I questions on cross examination, am unsure
“I am my video. II wish there was without my would have to have the video. Not was a video. II would Not Then I can’t without a video. If with out the video, No, sir. Then If I had a video, I could. With out a video II would With know.” would not know.” know what During cross examination of Office Blackwell stated, he did not know what
He also stated on cross examination, Officer Sowell did with the video. He examination, Well, there would be a video from the Patrol unit car recording the entire scene, generally would Appellant’s Brief documenting everything.
The who is employed by The Appellant who San Augustine, by a defense Attorney in San
“Bad Faith”. The argues that the State and San Augustine Police Department acted in “Bad The downloaded prosecutor stated digital’s don’t get logged into evidence. It just gets downloaded mainframe. Prosecutor stated, But, you onto the mainframe. you know, things happen. Computers happen. Computers crash. II tried a case where the whole dadgum case file whole dadgum was lost by
file was by the police department. (RR: Vol. 3, P. 111, department. 111, L. 5-13) knows that computers crash and case files Appellant argues, if the state knows files have been lost by by the Police Department and video is documenting everything real time. Failure to preserve the video violated Appellant’s due process and right to a fair trial. ~
A prosecutor has a duty not knowingly to proffer perjured testimony and to A may become which he may correct any perjury of which become aware during trial. See e.g., eg., Alcortav v. Texas 355 U. S. 28, 31, 78 S. Ct. 103, v. Texas, 103,105, 2L.Ed2d 9 (1957).
105, 2L.Ed2d Evidence impeaching the testimony of a government witness is exculpatory when maybe determinative of when the credibility of the witness maybe of a criminal defendant’s guilt or innocence. Giglio, U.S at 154,
Qiglg, 405 U.S United States v.
154, 92 S.Ct. at 766; United v. Gengler, 574 F. 2d.730,735 (3d Cir. 1978).
574 Cir.l978).
In prosecutor direct examination of Officer Blackwell the prosecutor handed Appellant’s Brief own police report. The of his own copy of
Officer Blackwell a copy Some of
The prosecutor states, Some my highlighting; but other than that it’s a good the pink, that’s my good copy. (RR:
(RR: Vol. 3, P. 10, 10, L. 1-2). At that time II think you
1-2). Q. At you testified testified that y’all began searching the vehicle first as an inventory search; is that correct? of that, I just A. Actually, before any of just stood there in the open door of the vehicle and noticed the white streaks on the door panel.
Q: In Plain view?
Q:
A. Right, in plain view. show’s that he knowingly and willfully, with Officer Blackwell’s police report show’s Officer deceitful malicious intent, along with the prosecution mislead the jury jury on the by Officer Blackwell’s testimony, he states he found the sequence and the order, by view doctrine. alleged evidence in the car door pocket, to justify the plain view
Report Officer Blackwell’s Report
Officer Sowell placed Pritchett in custody on the charge “Fail to present Driver him in the rear seat of his patrol vehicle. Officer Blackwell’s and placed him
License” and report states, II looked into the open door of the vehicle and inside the door pocket, amount of I observed a small amount of white substance. II touched the small fragments and know this to be consistent with crack was firm and waxy. I know noted the substance was Appellant’s Brief my vehicle, and tested the fragments of the field test kit from my cocaine. I1 retrieved a field substance in the door pocket. The substance tested positive for cocaine. pocket. The cocaine. I advised was going to be charged with Officer Sowell, and II advised Pritchett that he was Officer of of a controlled substance in a drug free zone. II collected the remaining of
Possession of the fragments of cocaine from the door pocket with officer Sowell watching, and them in an evidence bag, and immediate handed placed them handed the bag to Officer
Officer Sowell. was a number
There was And II tested several number of fragments in the area of the door pocket. And smears on the door panel which small white smears which gave positive indication of the presence of cocaine. of was attempting to destroy the rock of crack cocaine. It appeared that Pritchett was cocaine to prevent it by officers. it from being discovered by officers. II advised Pritchett of his Miranda me that he wished to speak to an attorney. Miranda warnings, and he told me attorney.
The Appellant argues that the video/audio contains “Favorable evidence” The includes both ““ exculpatory ““ and “impeachment
“impeachment evidence”. United States V.
V. Bagley, 105 S. Ct. At
473 U.S. at 676, 105 Thomas v.
At 3380; Thomas 2d at 403. Officer
841 S.W. 2d v. State, 841
Sowell’s wilfulness, on eight questions on cross examination, declined to answer the questions without seeing his video. Officer Blackwell’s testimony was was in direct own police report. conflict with his own conflict
Moreover, the testimony from the arresting Officer Sowell and the back-up Appellant’s Brief Officer Blackwell was own report’s of the officers own was inconsistent with the police officers would have been impeached by which would alleged events which was by the video. Appellant was by the absence of the video. significantly prejudiced by significantly
The itself was The San Augustine Police Department itself of maintaining and was in charge of preserving the video and it was their failure to do so that denied Appellant a complete it was on the totality of the circumstances outlined in the above portion, the defense. Based on was done in failure of the San Augustine Police Department to preserve this video was bad was a violation of Appellant’s bad faith and therefore, was Appel1ant’s due process right. shown that the state through its agent the San Augustine Police Appellant has shown
Department, did act in bad bad faith and had a reason or motive not to preserve the exculpatory evidence in the video of the incident that would show the police officers would show officers what actually took place during the following, alleged misconduct and the truth of what
As Officer Blackwell testified traffic violation and the detention of the Appellant. As
“documenting everything real time”. about the video, “documenting shown time”. Further, Appellant has shown would have been very useful in that the video contained exculpatory evidence that would the Appellant’s right to self-defense, to the jury. jury. was denied his due process right to adequately present a defense Appellant was was constitutionally harmed. and was Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
31 of Page 31
POINT OF POINT ERROR 3.
OF ERROR The trial court abused The abused its discretion sustaining prosecution’s objection obiection to motion to read into the record the relevant section of the Transportation defense motion Code for the jury’s Code understanding as it applies to motorists stopping at iurv’s understanding intersections.
STATEMENT OF VII. STATEMENT OF FACTS FACTS
The foregoing statements of the facts are incorporated herein by The by references for all purposes. Code 544.010 (( c )) evidence: purposes. Facts regarding Transportation Code evidence:
A trial to a jury commenced A commenced on August
August 4, 2014, during the course of of defense who conducted Appellant’s of the police officer who counsel’s cross examination of detention, defense counsel for the Appellant motioned the court to allow defense
“Texas Criminal and Traffic counsel to read into the record from the “Texas Law Manual”
Traffic Law Manual” Code 544.010 (( c )) for purpose to advocate therefrom during cross
Transportation Code would have fairly informed the jury and the court the controlling law examination that would of the transportation code as it of who stopped it applies to motorist and the police officer who
“One moment, Your
Dudinsky: “One the Appellant. Mr. Dudinsky: Your Honor, II would would like to read into the record the transportation code, if may, if the prosecutor has no objection. if II may, objection. Mr. “I’m going to object to you
Dutton: “I’m Dutton: what you you reading what The you believe to be the law. The judge can instruct the jury jury what The Court: “Let
What the law is. The me see ----
“Let me you
---- are you proposing to read?” Mr. Dudinsky: ““ This here, Section 544.010 sub-paragraph c Appellant’s Brief
And II think the jury governs a motorists stopping at stop signs and yield signs. And would jury would we have to follow.” Mr. Dutton: “Your what the procedure is that we be entitled to hear what “Your
The Court: “Sustained” Mr. Dutton: Honor, I1 object to the side-bar there.” The “Thank
Dutton: “Thank “The Court’s charge is going to contain all the instructions that the
The Court: “The you”. The jury is going to hear. When we
When we have a charge conference, we up” Mr. we will take this up” I’m not allowed to read this to the jury?” The
So I’m
Dudinsky: “All right. So Dudinsky: “No.
The Court: “No. The Court’s charge is going to contain all the instructions as far as the law is The
“Okay.” (RR: Vol. 2, P. 77-78).
Dudinsky: “Okay.” concerned.” Mr. Dudinsky: summary closing arguments, a charge conference not transcribed Following summary
The presiding judge agreed to include in the initiated concerning the court’s charge. The you have a reasonable doubt that the Defendant, Robert “if you court’s charge, Court: “if Eugene Pritchett, failed to properly stop at the Intersection of Hospital Street and Eugene Milam Streets, or if you Milam Eugene Pritchett, properly you believe the Defendant, Robert Eugene stopped at said intersection, then any evidence obtained from the search of Defendant him.” Eugene Pritchett’s vehicle shall be disregarded as evidence against him.”
Robert Eugene (RR: Vol. 3, P. 84, L. 20-25, P. 85 L. 1). (RR: 1).
The court’s charge did not include the wording of paragraph (( c )) of The of
Code 544.010 on Transportation Code on the letter of the law governing lawful motorist Appellant’s Brief stopping procedure at stop signs located at intersections.
SUMMARY OF VIII. SUMMARY ARGUMENT OF ARGUMENT must be accounted that if
It must Verbatim context of if the jury had been provided the verbatim officer’s reason for paragraph (( c )) to review for consideration and deliberation on the officer’s jury would stopping Appellant; the jury would have been informed concerning the letter of the off1cer’s reason for stopping law as it applies to the circumstances, particularly the officer’s
The jury would Appellant. The would have concluded that the officer’s officer’s basis for stopping was unlawful.
Appellant and conducting a roadside detention was
ARGUMENT IX. ARGUMENT
Code 544.010 (( c )) is the Under established Texas law, Transportation Code Under when approaching an intersection with a must obey when controlling law that motorists must stop sign or a yield sign.
Code 544.010.
Transportation Code 544010. Stop Signs and Yield Signs. “(a) Unless directed by a police officer or traffic-controlled to proceed by traffic-controlled signal, the operator of a vehicle
Vehicle or streetcar approaching an intersection with a stop sign shall stop as provided by by subsection (( c ).
). (
( c ) An operator required to stop by
) An by this section shall stop before of the intersection. In the absence of entering the crosswalk or the near side of of a marked stop line. In the absence of a crosswalk, the operator shall stop at a clearly marked Appellant’s Brief where stop line, the operator must stop at the place nearest the intersecting roadway where
View of the operator has a view on the intersecting roadway. of approaching traffic on Leg.H. roadway. Leg.H. Stats. 1995 74‘“
1995 74 th
165, effective September 1, leg. Sess. Ch. 165, 1995" Section (( c )) is the
1, 1995" of this case. relevant section of the code that applies to the facts of
The officer testified that Appellant was The was stopped for failure to stop at a
The officer agreed that a stop line is the designated designated point at a stop sign. The point to stop. The officer
The officer testified that a video that was shown was lost could have shown shown where appellant could have shown The lost video is material where Appellant stopped. The
The citation for failure to stop at a designated point at a stop sign is evidence. The
The intersection did not have a cross walk material evidence not lost. The walk nor a stop line being the essential elements addressed in section (( c )) of the code that require and must comply mandate under such circumstances the stopping procedure a motorist must with and follow.
As itit were, the jury had As had no video but the jury had had available a code of law the jury jury could have assessed and applied to the controlling facts and circumstances of the of the intersection. configuration of physical configuration The jury only had discursive uncertain intersection. The officer from which testimony of the officer make its assessment. which to make The court erred in its assessment. The discretion to disallow the jury of jury hearing and assessing the written relevant portion of Appellant’s Brief which to wholly judge the facts as they pertain to an by which section (( c )) of the code by off1cer’s reason for detention; facts that were and are inextricable and precisely officer’s by a code of law. controlled by POINT OF POINT ERROR 4.
OF ERROR were violated under Appellant’s Constitutional Rights were under the Fourth
Fourth Amendment of the United States Constitution and Amendment and Article I,
1, Section 9 of the when the reasonable alternatives that were
Texas Constitution when Texas were available to impoundment were impoundment were not implemented. implemented.
STATEMENT OF VII. STATEMENT OF FACTS FACTS
The foregoing statements of the facts are incorporated herein by The by references for was stopped at a residential street located in the town all purposes. Appellant was town of San
November 24, 2011. Appellant was Augustine, Texas in the evening of November was initially stopped for improperly stopping “failure to stop at a designated stop sign”. on his Appellant’s detention revealed that Appellant did not have his driver’s license on person. was arrested without warrant for failure to display driver’s person. Appellant was driver’ s license. The officer The 2014 that he arrested Appellant without a
August 4, 2014 officer testified at trial on August
(RR Vol. 2, P. 85, L. 24-25). warrant. (RR warrant. was impounded. Necessity Following Appellant’s arrest, Appellant’s vehicle was impoundment were discussed during defense of and available alternatives to impoundment of Appellant’s Brief counsel’s cross examination of the arresting officer. officer.
You impounded
Q. Okay. You impounded the vehicle?
A. Yes, sir. (RR: Vol. 2, P. 87, L. 2-3)
Now does the San Augustine Police Department have a standardized Yes? Okay. Now
Q. Yes? impounding procedures? policy governing impounding we do.
A. Yes, sir, II believe we
Did you Q. Did you bring it it with you?
A. No, sir, I do not have it it with me.
Q. So, your telling the jury Q. jury that there is one?
A. There should be, yes, sir.
You say there should be? (RR:
Q. You (RR: Vol. 2, P. 87, L. 1-2, 17-25).
1-2, 17-25).
I’m not sure. II don’t have the policy manual
A. I’m manual in front of ofus.
us. (RR: Vol. 2, P. 88, L. 1) 1) Q. Now, you that you
Now, There were alternatives available to you you could have avoided impoundment, were there not?
A. Are you when you you referring to when you approached the scene? (RR: Vol 2, P. 95, P. 1-5) (RR: Vol 1-5) was at the location; you Q. II was Q. you recall?
Appellant’s Brief A. Yes, sir.
The care was Q. The was not turned over to me, and you knew I was you knew was the owner? owner? A. Yes, sir. impound the vehicle and you you go ahead and impound
Q. So you you conduct an inventory search? A. Yes, sir. (RR: Vol.
Vol.2,
2, P. 95, L. 5-12).
SUMMARY OF VIII. SUMMARY ARGUMENT OF ARGUMENT
The Appellant’s The made an objection that The
Appe11ant’s Attorney, made The impound impound was was improper. impound and improper search, then it
Being an improper impound it falls under 38.23 (a) of of the Code of Criminal Procedure and must
Texas Code must be excluded. owner of the The evidence in the trial record shows the availability of the owner The vehicle being at the scene of the arrest to whom the officer whom officer could have given of the vehicle. possession of
The evidence in the record shows the vehicle was The was legally parked at the curb of
The evidence in the record a residential street two blocks from Appellant’s home. The was not abandoned shows the car was shows flow of traffic or was abandoned nor impeding the flow was a danger to public safety. The evidence also shows
The was not mechanically shows that the vehicle was
The evidence in the record shows immobilized. The defective or immobilized. was no shows that there was was used in the commission connection between the arrest or that the vehicle was commission of of a Appellant’s Brief
The record shows crime. The shows the police officer impound Appellant’s vehicle officer chose to impound based upon “C” misdemeanor upon a class “C” misdemeanor offense of failure to display driver’s license. was no evidence in the record showing that the area in which
There was which Appellant’s vehicle was parked was was was especially vulnerable to crime against motor vehicles. The
The shows that Appellant did not consent to nor ask the police evidence in the record shows impound and tow officer to impound tow the Appellant’s vehicle. In light of the undeniable of the vehicle, location of alternatives available, condition of of the vehicle, the police impound and act in bad officer chose to impound bad faith and disregard and violate the
Amendment of the Constitution constitutional rights proclaimed for all in the Fourth Amendment of the United States and the given rights of all protected in Article 1, of of the
1, Section 9 of Texas Constitution.
ARGUMENT IX. ARGUMENT
The made an objection that The The Appellant’s Attorney, made The impound impound was was improper. impound and improper search, then it
Being an improper impound it falls under 38.23 (a) of the
Code of Texas Code of Criminal Procedure and must be excluded. excluded.
The impoundment established at trial was The available alternatives to impoundment was evidence showing that the arresting police officer had no credible necessity existing to justify impoundment of Appellant’s motor vehicle. a lawful impoundment Appellant’s Brief
The State bears the burden of The of proving that an impound may impound in lawful, and may was arrested, (2) no by demonstrating that (1) the driver was satisfy this burden by no impoundment were available to ensure the vehicle’s alternatives other than impoundment impounding agency had an inventory policy, and (4) the policy was protection, (3) the impounding was
Garza v. followed. Garza 137 S.W.3d
State 137 v. State, App-Houston [1 S.W.3d 878, 882 (Tex. App-Houston [l“st
Dist.] 2004, pet. Ref’d). pet. The owner
The owner of the vehicle was The State did not prove that the was on site. The impound or inventory policy and if San Augustine police department had an impound if the policy’s were followed.
The Court squarely confronted issues of vehicle inventory searches and The impounded in South Dakota impounded Dakota v. Oggerman, 428 U.S. 364, 96 S Ct. 3092, 49 L.Ed.2d
v. Opperman, 1000 (1976).
1000 “The necessary predicate for any such search, however, is that the
(1976). “The automobile be lawfully impounded, that is to say, taken lawfully into official official At 3100, 3100-01; the automobile has been
Id., at 375, 376, 96 S.Ct. At custody.” Id., subject to less stringent warrant requirements for searches and seizures than other
Amendment. The
“effects” protected under the Fourth Amendment. The reasons for this are two fold. of an automobile creates circumstances of such exigency First, the inherent mobility of of the warrant requested is that as a matter of practical necessity strict enforcement of impossible. Second, there is a lesser expectation of privacy with respect to an impossible.
Appellant’s Brief
Eugene Pritchett Robert Eugene 40 of automobile. South Dakota
Dakota v. Opperman, supra.
v. Opperman, of the However, automobiles are considered “effects” and within the scope of Amendment, See: Cady
Fourth Amendment, Cody v.
V. Dombrowski, 93 S.Ct. 2523, 37
Dombrowski, 413 U.S. 433, 93
v. New
L.Ed.2d 706 (1973); see also: Coolidge v. New Hampshire 91 S
Hampshire, 403 U.S. 443, 461, 91 CT. 2022, 2035, 29 L.Ed.2d 564 CT. “The word
564 (1971); “The word “automobile”
“automobile” is not a talisman in whose Amendment fades away whose presence the Forth Amendment away and disappears.” Id.
Id. In order for impoundment of an impoundment must be of the automobile must of an automobile to be lawful the seizure of
Amendment. reasonable under the Fourth Amendment. may arise from: (1) an unattended vehicle impoundment may
Reasonable cause for impoundment that is illegally parked or otherwise an impediment to traffic, Collins v.
v. State 630 S. W.2d 890 (Tex. App. 1982- W.2d 1982- pet. ref’d). ref‘d). Evidence at trial established that Appellant’s
flow of traffic on a was not unattended or illegally parked or impeding the flow vehicle was
(RR Vol. 2, P. 93). (2) an unattended vehicle that the driver cannot residential road. (RR remove Scmdel v. remove because he is injured or physically or mentally incapacitated, Sandel State
v. State, S.W2d 283 ((Tex.
253 S.W2d Tex. Cr. App. 052); Broughton v. 2d 147
State 643 S.W. 2d v. State, 147 (Tex. App. 1982 .no pet).
1982 was no evidence that the Appellant was pet). There was was unable to remove remove his was physically or mentally of his being injured or that he was vehicle because of incapacitated. (3) a vehicle that has been stolen or used in the commission of another Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
41 of Page 41 crime. Gauldin v.
v. State, S.W.2d 411
State 649 S.W.2d 411 (Tex. Cr. App. 1984);
1984); Pearson v. State 649
v. State,649 SW2d 786 S.W.2d 786 (Tex. Cr. App. 1983,
1983, pet. ref’d), ref‘ d), Evidence at trial established that was not stolen or connected with nor used in the commission of
Appellant’s vehicle was
(RR Vol. 2, P. 99). (4) a vehicle the becomes another crime. (RR becomes unattended because the removed form the vehicle, placed under arrest, and his property cannot be driver is removed by any protected by means other than impoundment. means impoundment. Evers v. S.W.2d 46
State 576 S.W.2d v. State,
1978)
(Tex. Cr. App. 1978) owner was Evidence at trial established that the owner was at the scene at the time of appellant’s arrest and the owner was available to safeguard owner’s owner was owner’s vehicle. Yet, the who knew officer who arresting officer knew the owner owner was knew the owner was an attorney, knew was the owner owner was owner knew that the owner’s of the vehicle, and knew of was in compliance with insurance owner’s vehicle was would not allow the owner and registration requirements however, would owner possession of of the vehicle. (RR Vol. 2, P.
(RR F. 95-95) An automobile may An may be impounded impounded if removed from his automobile if the driver is removed no other alternatives are available other than and place under custodial arrest and no impoundment to insure the protection of the vehicle. Bevavides v. impoundment S.W.2d
State 600 S.W.2d v. State,
1980); Christian v.
809 (Tex. Cr. App. 1980); v. State, S.W.2d 359 (Tex. Cr. App. 1980);
State 592 S.W.2d 1980); Daniels v. S.W.2d 809 (Tex. Cr. App. 1980).
State 600 S.W.2d v. State, 1980).
Appellant’s Brief
Eugene Pritchett Robert Eugene 42 of
We note that police officers need not independently investigate possible We impoundment absent objectively demonstrable evidence that alternatives to impoundment
Eugene Redmond alternatives do in face, exist. Jonathan Eugene Redmond v.
v. State, 05-09-01461 -
State, (No. 05-09-01461- CR) (Tex. App.- CR) App.- Dallas 2011); see also Maybergy
Mayberry v.
v. State, W.2d 176,
State, 830 S. W.2d 180 176, 180 1992, pet ref’d).
(Tex. App. -- Dallas 1992, ref‘d).
When impoundment When impoundment follows custodial arrest, appellant courts have considered impoundment. (1) the of the impoundment. several factors in determining the reasonableness of someone at the scene of of someone availability of whom the police could have given of the arrest to whom of the vehicle, (2) whether the vehicle was possession of flow of traffic or was impeding the flow was was locked, (4) whether the was a danger to public safety, (3) whether the vehicle was would likely be of such duration to require the police to take detention of the arrestee would some reasonable connection between the was some protective measures, (5) whether there was was used in the commission of a arrest and the vehicle, and (6) whether the vehicle was
At 179-80.
Id. At crime. Id. was established in court showing l79-80. Objective evidence was showing there impoundment that did in fact exist and were available. were reasonable alternatives to impoundment
The arresting officer The community care-taking justification for officer did not assert any community of the officer’s the impoundment, and in light of no such justification off1cer’s testimony at trial no justification made no showing that Appellant’s The prosecution nor the testifying officer made existed. The Appellant’s Brief car was way or crosswalk, or was was connected with a crime, blocked a drive way was abandoned, stolen, and immobilized, or posed a hazard or impediment to other traffic. It is also was legally parked in a residential area two significant that Appellant’s car was significant two blocks significant, the officer testified the registered from Appellant’s residence. Also significant, was available at the scene. The owner of the vehicle was owner The officer testified testified that he impounded made the arrest. (RR: impounded the car after he made (RR: Vol. 2, P. 94, L. 21)
The evidence for review affirmatively shows The shows there were reasonable and lawful impoundment. Respectfully, it alternatives available to avoid impoundment. it cannot be concluded ~ that the error was upon the jury. was harmless beyond a reasonable doubt in its effect upon jury. Tex.R.APP.P.Ann 81(b)(2).(Pamp. 1989) Tex.R.APP.P.Ann 8 l (b)(2).(Pamp. l 989) Gauldin v. State 683
v. State, S.W.2d at 415;
683 S.W.2d 4 l 5; Fenton v. State 785 S.W.2d v. State, App.- Austin 1990)
S.W.2d 443 (Tex. App.- 1990) POINT OF POINT ERROR 5.
OF ERROR The inventory search of Appellant’s vehicle was The was an an illegal unconstitutional
Texas investigative search for evidence in violation of Article 1, Section 9 of the Texas Constitution.
STATEMENT OF VII. STATEMENT OF FACTS FACTS
The forgoing statements of the facts are incorporated herein by The by references for all purposes. purposes.
Appellant’s Brief
Eugene Pritchett Robert Eugene 44 of was followed for over a half Appellant was was hunch because Appellant was half mile on a hunch on a road where officer while driving on by a police officer observed by known drug where allegedly a known was located. (RR: place was (RR: Vol. 2, P. 48) was stopped on a residential street located in the town Appellant was town of San
Augustine, Texas in the evening of November was initially
201 1. Appellant was
November 24 2011. stopped for “failure to stop at a designated point at a stop sign” located 45 feet from the nearest place to the intersecting roadway. (RR: Vol. 2, P. 73-79)
Appellant’s detention revealed that Appellant did not have his drivers license was arrested without warrant for failure to display drivers on his person. Appellant was on
The police testified at trial on August 4, 2014 license. The 2014 that he arrested Appellant
(RR: Vol. 2, P. 85, L. 24-25) without a warrant. (RR: impounded and was impounded
Following Appellant’s arrest, the Appellant’s vehicle was
The record shows inventoried. The shows that there were reasonable alternatives available to impoundment and inventory. (RR: Vol. 2, P. 85-88, 91-95) impoundment was conducted resulting in a impoundment, an inventory search was
Following impoundment, of less than 0.01 trace net weight of gram of cocaine found at night of a gram
0.01 hundredths of view by allegedly in plain view by a second police officer who was officer who was not conducting the was searching for evidence. inventory search but was Appellant’s Brief officer about inventory list.
Counsel questioned the arresting officer
The car was
Q. The was not turned over to me, and you knew I was you knew was the owner? owner? A. Yes, sir. impound the vehicle, and you you go ahead and impound
Q. So you you conduct an inventory search? A. Yes, sir.
Q. Did Q. Does that
Did -- -- now, the standard criteria for inventory is an inventory list. Does make sense? make of value in the vehicle.
A. Yes, sir, anything of
.
And you
Q. And you took an inventory list?
A. Yes.
You did?
Q. You A. There should be one, yes, sir. II don’t see it it with this report.
(RR” Vol. 2, P. 95, L. 10-25)
Q. II beg your pardon? (RR” 10-25) ?>O?>@.>O?>O?>@> don’t see one with this -- -- report.
A. I don’t
You listed the valuables that you Q. You you inventoried? you with this report.
A. II -- -- I should have, but II can’t tell you we don’t have itit right?
Q. But we
Your correct on that. (( RR:
A. Right. II understand. Your RR: Vol. 2, P.96,
R96, L. 1-5)
1-5) Appellant’s Brief
Eugene Pritchett Robert Eugene 46 of
And I’m Q. And l’m suggesting to you was you conducted an inventory, an inventory that was you that you mse to make a ruse make a search without a warrant of You were searching of a motorist vehicle. You for criminal evidence, and you knew you you knew you did not have the probable cause, didn’t you, otherwise?
A. I didn’t have probable cause for an evidentiary search, no. when officer Blackwell came was conducting an inventory search when
A. No, sir. II was came up. officer Blackwell was Q. Okay. So then officer making a search on his own, wasn’t he? If was making must have been searching -- -- wasn’t part of the inventory search, he must he wasn’t know what don’t know
A. II don’t You would what officer Blackwell does. You would have to ask him. (RR:
(RR: Vol. 2 P. 96-97)
SUMMARY OF VIII. SUMMARY ARGUMENT OF ARGUMENT
The evidence in the record shows The owner of shows that the owner was available of the vehicle was The arresting officer testified that he at the scene to take possession of the vehicle. The impounded the vehicle, and conducted an arrested Appellant without a warrant, impounded
The arresting officer testified that a second officer was inventory of the vehicle. The was not of the inventory search but part of was searching for evidence allegedly discovered at was
The alleged plain view night in plain view. The view evidence consisted of a trace-net weight gram of
0.01 hundredths of a gram less than 0.01 of cocaine.
Appellant’s Brief
Eugene Pritchett Robert Eugene 47 of
The arresting officer The impound which officer chose to impound which allowed opportunity to conduct a specious inventory search for investigative purpose that otherwise the arresting officer lacking the probable cause required under the automobile exception to the on the totality warrant requirement did not have nor could not have established based on of the circumstances of the arresting officer’s of off1cer’s initial reason for following Appellant, misdemeanor offence, and the circumstances of aRR:est for misdemeanor of the scene of detention, of which, provided the arresting officer with legal probable cause to search none of Appellant’s vehicle.
The inventory search of Appellant’s vehicle was The was an unconstitutional was conducted in violation of investigative search that was of Article 1, of the
1, Section 9 of Texas Constitution.
ARGUMENT IX. ARGUMENT made an objection that The The Appellant’s Attorney, made The The impound impound was was improper. impound and improper search, then it
Being an improper impound it falls under 38.23 (a) of the
Code of Texas Code of Criminal Procedure and must be excluded. excluded.
To rebut the presumption of proper police conduct, a defendant must show To show the was conducted without a warrant and once the defendant rebuts the search was presumption the burden shifts to the State to either produce evidence of of a warrant or Appellant’s Brief prove the reasonableness of of the search.
Russell v. SW2d (TeX.Cr.App. 1986);
State 717 S.W.2d 7, 9 (Tex.Cr.App. v. State, 1986); Telshow v. 964
State 964 v. State,
2d 303, 307 (Tex.App.
S.W. 2d Houston [14
(Tex.App. -- Houston th
[l4”‘ Dist] 1998,
Dist.] no pet.); White
1998, no White v. 871
State 871 v. State,
S.W.2d 833, 836-37 (Tex.App.-Houston [14 S.W.2d th
[14“‘ Highwarden
1994, no pet.) See Highwarden Dist.] 1994,
v. S.W.2d 479,481 V. State, 846 S.W.2d & n. 2 (Tex. App.-Houston
479,481 & App.-Houston [14 th
[l4‘“ 1993), pet.
Dist.] 1993), dism’d as improvidently granted, 871 dism’d S.W.2d 726 (Tex.Crim. App.
871 S.W.2d App. 1994). The
1994). The officer testified arresting officer testified that he arrested Appellant without a warrant and did not have probable cause to search Appellant’s vehicle (RR: Vol. 2, P. 85)
A unanimous A unanimous ruling stated that a vehicle stop is a seizure of not only the vehicle but of its occupants. Brendlin v.California, 551 U. S. 249, 127 v.Cali[0rnia, 551 127 S.Ct. 2400, A person is seized for constitutional purposes, when
132 (2007). A
168 L.Ed.2d 132 168 when under would believe that he is not free to all of the circumstances, a reasonable person would leave. Nottingham v. W.2d 585 (Tex.App.
State 908 S. W.2d v. State, (Tex.App. -- Austin 1995). A person is
1995). A seized i.e.,
i. when he has been restrained by e., arrested, only when means of physical force or by means when show of authority. California when he has submitted to a show v. Hodari,
Calizornia v. 499 U.S. 621,
Hodari, 499 111 S.Ct 1547, 111 113 L.Ed.2d 690 (1991); Medtord
1547, 113 v. State
Medford v. S.W.2d 769 (Tex.Cr.
13 S.W.2d State, 13 App. 2000
Eugene Pritchett Robert Eugene 49 of
Granados v. searched or seized. Granados S.W.3d 217 (Tex.Cr.App.
State 85 S.W.3d
v. State, The
(Tex.Cr.App. 2002) The had a reasonable expectation of privacy in the vehicle and standing to
Appellant had object to a search of the vehicle because Appellant had exclusive control of and owner to use the vehicle. received permission from the owner misdemeanor offense of Following Appellant’s arrest without warrant for the misdemeanor of was handcuffed and confined failure to display driver’s license, appellant was confined to the back officers control unit. (RR: seat of the arresting officers (RR: Vol. 2, P. 86)
When a policeman has made When made a lawful custodial arrest of the occupant of an may as a contemporaneous incident of automobile, he may of that arrest, search the passenger compartment of that automobile. New ofthat York v.
New York v. Belton 101 S.Ct 2860,
Belton, 452 U. S. 454, 101 69 L.Ed. 2d The Belton holding was
2d 728 (1981). The was laid to rest in Arizona v. Grant 556
v. Grant, 129 S.Ct. 1710,
U. S. 332, 129 of
A.L.R. Fed.2d 657 (2009). In place of 1710, L.Ed.2d 485, 47 A.L.R. may search a vehicle approach: “Police may
Belton, the court adopted a two-pronged approach: incident to arrest only if of the passenger if the arrestee is within reaching distance of compartment at the time of the search or it compartment it is reasonable to believe that the vehicle
Gant at 1723. of the arrest.” Gant contains evidence of was confined in the
1723. Appellant was of the arresting officer’s backseat of officer’s patrol unit and unable to reach the passenger seat was no of his vehicle and there was of no reasonable grounds to suspect that evidence of failure Appellant’s Brief to display drivers license would of the would be found in the passenger compartment of The arresting officer vehicle. The officer testified that he had no probable cause justification justification to Appe1lant’s vehicle. (RR: Vol. 2, p. 89) search Appellant’s
“An inventory search need not be predicated upon “An upon the same same requirements for probable cause or in obtaining a search warrant. upon the
Its existence rests upon impounded officer has toward a lawfully impounded caretaking responsibility a police officer automobile.” Gill v. W.2d 307, 319 (Tex.Cr.App. 1980)
State 625 S. W.2d v. State, 1980) The state will contend that the warrantless search was The was permissible as an inventory search under South Dakota
Dakota v. Oggerman 428
v. Opperman, 428 U.S. 364, 96 S.Ct 3092, 49 The burden of
1000 (1976). The
L.Ed.2d 1000 upon the state. of proof in that regards rests upon Delgado Delgado v.
v. State, S.W.2d 718, 721
State, 718 S.W.2d 721 (Tex.Cr.App. 1986)
1986) An inventory search is to ascertain the contents of An impounded of a properly impounded where a necessity exists (1) to protect the defendant’s property while it automobile, where it is in police custody, (2) to protect the authorities against claims of lost or stolen property, or (3) to protect the police from potential danger. The necessary predicate
The for an inventory search is that the automobile be lawfully impounded, that is to say,
An automobile may Opperman, Supra. An taken lawfully into official custody, Opperman, may be impounded if impounded removed from his automobile and placed under custodial if the driver is removed Appellant’s Brief
Eugene Pritchett Robert Eugene of 60
51 of Page 51 of the arrest and no other alternatives are available other than to insure the protection of vehicle. Evers v.State, v.Slate 576 W.2d 46 (Tex.Cr.App 1978);
576 S. W.2d 1978); Christian v. State 592
v. State, (Tex.Cr.App. 1980).
S.W.2d 359 (Tex.Cr.App. 1980). Alternatives were available to insure the protection
The owner of the vehicle. The of owner of was personally at the scene of of Appellant’s vehicle was owner’s vehicle as an alternative of owner’s detention and available to insure the protection of impoundment and inventory. (RR: Vol. 2, P. 116) to impoundment The vehicle could have been
116) The owner of by the owner safely protected by of the vehicle. Evers,
Evers, Supra.
An inventory search on An on a traffic arrest is illegal if if the vehicle is parked lawfully at the time and no need to take the vehicle into custody Fenton v.
Fenton S.W.2d
State 785 S.W.2d v. State,
(TeX.App. -- Austin 1990,
443 (Tex.App. 1990, no was legally parked at a curb on
The vehicle was no pet.). The two blocks from Appellant’s home. (RR: Vol. 2, P. 91) a residential street located two Impoundment and inventory search is legal only if Impoundment no alternative to if there is no impoundment. Backer v. impoundment. S.W.2d 463 (Tex.Cr.App. 1983).
State 656 S.W.2d v. State, Owner of the
1983). Owner was a reasonable alternative to vehicle at the scene to take custody of the vehicle was impoundment and inventory. (RR: Vol. 2, P. 106-107) impoundment 106-107)
In a leading Texas case, Benevidas v. S.W.2d 809 (Tex.Cr.App.
State 600 S.W.2d v. State, (Tex.Cr.App. of Criminal Appeals indicated impoundment
1980) the Court of 1980) would impoundment and inventory would
To remove be permissible in the following situations: “(1) To from an remove a vehicle from an Appellant’s Brief was not involved in an accident. (RR: accident scene.” Appellant’s vehicle was (RR: Vol. 2,
106) P. 106)
To remove “(2) To remove a vehicle parked parked in violation of regulations.” Appellant’s vehicle
Vehicle was way, nor parked in a no-parking zone, and was was not blocking a drive way, was legally parked at a curb on a residential street. (RR: Vol. 2, P. 107) The owner
107) “(3) The owner or driver requested or consents.” owner requested
Neither Appellant nor owner impoundment or consented impoundment. impoundment impoundment. (RR:
(RR: Vol 2, P. 93) “(4) Officer was reasonably believes vehicle is stolen.” Officer did not believe the vehicle was
The vehicle stolen. (RR: Vol. 2, P. 94) “(5) The abandoned.” Appellant’s vehicle had
Vehicle is abandoned.” not been abandoned. (RR: Vol. 2, P. 92)
The vehicle is a hazard.” “(6) The was not a hazard impeding hazard.” Appellant’s vehicle was
The vehicle traffic. “(7) The danger to
Vehicle is so mechanically defective that it creates a danger highway.” Appellant’s vehicle was others using the highway.” was not mechanically defective nor
A statute authorizes impoundment.” immobilized. (RR: Vol. 2, P. 99) “(8) A immobilized. impoundment.” No
No The driver is arrested for being impoundment. “(9) The applicable statute authorizing impoundment. and no intoxicated while in the vehicle and no other person person is available to drive the was arrested for failure to vehicle or otherwise safeguard the vehicle.” Appellant was owner was display driver’s license, the owner was available at the scene to drive and safeguard Appellant’s Brief Roben Eugene Robert Eugene Pritchett of 60
The driver is removed (RR: Vol. 2, P. 95-96) “(10) The the vehicle. (RR: removed from from his and placed under automobile and automobile and no under arrest and no other alternatives are available other impoundment to insure protection of the vehicle.” Owner than impoundment than Owner available to take remove vehicle. Appellant’s possession and remove Appe1lant’s wife located two blocks from vehicle remove vehicle. (RR: Vol. 2, P. 94) Benevidas, and available to take possession and remove Benevidas, Supra. may be lawful in a variety of circumstances. Impoundment of an automobile may Impoundment
Mayhood v. State Mayhood v. W.2d 873, 874 (Tex. App. 1984,
State, 669 S. W.2d 1984, pet ref’d). refd). Reasonable may arise from: (1) an unattended vehicle that is illegally impoundment may causes for impoundment parked or otherwise an impediment to traffic, traffic, Collins v. W.2d 890 (Tex.
State 630 S. W.2d v. State,
1982, pet ref’d);
Cr. App. 1982, remove ref’ (1); (2) an unattended vehicle that the driver cannot remove
Sande] v. because he is injured or physically or mentally incapacitated, Sandel State 253 S.
v. State, W.2d 283 W.2d 1952); Broughton v.
283 (Tex. Cr. App. 1952); v. State, W.2d 147
State, 643 S. W.2d 147 (Tex. App. no pet.) (3) a vehicle has been stolen or used in the commission of another
1982, no 1982, crime, Gauldin v.
v. State, SW2d 411
State 683 S.W.2d 1984); Pearson
411 (Tex. Cr. App. 1984); Pearson v. State 649
v. State, 1983, pet ref’d);
S.W.2d 786 (Tex. App. 1983, becomes unattended because ref’ d); or (4) a vehicle becomes removed from the vehicle, placed under arrest, and his property cannot the driver is removed be protected by means other than impoundment, Evers v. by any means W.2d 46
State 576 S. W.2d v. State,
Appe11ant’s Brief Appellant’s
The arresting officer stated that impoundment 1978). The
(Tex. Cr. App. 1978). impoundment and inventory was solely based upon was arrest. (RR: Vol. 2, P. 94) upon Appellant’s arrest.
The arresting officer conducted the inventory of Appellant’s vehicle. The The The burden is on show a lawful inventory. State v. on the State to show S.W.2d 105,
Giles 867 S.W.2d v. Giles, 105,
108 (Tex. App. -- El Paso, pet. ref’d).
108 As in Giles and this case, the State did not refd). As provide the trial court with a written inventory Policy. impounded in the first place. The Appellant’s vehicle should not have been impounded The impoundment other than Appellant’s arrest that had State did not offer any reason for impoundment no The available alternatives were affirmed in court. no connection with the vehicle. The The testimony in court showed The showed that the officer’s off1cer’s inventory search did not include a written inventory list nor did the State provide the court with a written inventory policy. An inventory search is permissible under the federal and state constitutions
An if impoundment. if conducted pursuant to a lawful impoundment.
The court of The of criminal appeals stated that “before and inventory search can be impoundment.” must be an inquiry into the lawfulness of the impoundment.” upheld as lawful there must Benevides, Benevides, Supra.
The impound was The impound was a violation of of Appellant’s rights under Article 1,
1, Section 9 of the Texas Constitution. of Constitution.
Appellant’s Brief
CONCLUSION X. CONCLUSION
The issues addressed in Appellant’s appeal are fundamental to the ingrained The judicial principals characteristic of sovereign nation. Appellant initially argued that was prohibited by his subpoena was by an insupportable technicality foreclosing receipt of evidence that could be of an importance to a legal defense. Authorities acting in no judicial behalf of the State concluded evidence unavailable or lost should have no was weight within a legal matter concerning the innocence beyond guilt. Appellant was by a judicial system from imparting to a jury an instructive guidance inherent subdued by
Freedom from being subjected to of law for its understanding. Freedom within a code of was subordinated to a callous disregard for the unreasonable seizure and search was people’s rights.
Appellant respectfully submits that he has shown may be what shown that due process may what is only due. Appellant’s right to be secure under Article 1,
1, Section 9 of the Texas was of
Constitution was moment when of no moment when Appellant’s vehicle was was impounded impounded and impound were readily available to police officers searched even though alternatives to impound
The arresting officer acting in disrespect to their oath to the State. The who arrested officer who impounded and inventoried
Appellant for failure to display drivers license impounded
A commenced searching Appellant’s vehicle. A second police officer arrived and commenced Appellant’s Brief Appellant’s vehicle not for valuables nor evidence to display drivers license but
The second officer without of another crime -- -- any crime. The searching for evidence of developed probable cause to search Appellant’s vehicle suspiciously found a trace amount less than 0.01 amount gram of cocaine. The
0.01 hundredth of a gram The exclusionary rule is warranted.
Appellant entrusts the Honorable Court to exclude the unlawfully obtained remand of evidence and enter a dismissal or accord a remand new trial. of this case for a new Appellant’s Brief
PRAYER FOR XI. PRAYER FOR RELIEF RELIEF
WHEREFORE ABOVE PREMISES WHEREFORE ABOVE PREMISES CONSIDERED,
CONSIDERED, Appellant prays that Honorable Court reverse the judgement judgement of the trial court and render judgement judgement in of Appellant, or in the alternative, Appellant respectfully request that the favor of
273“rd District Court remand this case back to the 273
Honorable Twelfth Court of Appeals remand new trial. of San Augustine County, Texas for a new of
Respectfully submitted, LAW OFFICE LAW OFFICE OF DONOVAN PAUL
OF DONOVAN DUDINSKY
PAUL DUDINSKY 701 South Liberty Street
75972 San Augustine, Texas 75972 Phone:
Phone: 936-275-9871
936-275-9871 Fax: 936-275-9655
936-275-9655 E-Mail: d auldudinsk ahoo.com [email protected]
XII. CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE copy of I hereby certify that a true and correct copy was served of this Appellant’s Brief was on each attorney of record or party in accordance with the Texas Rules of Civil on on this 12 Procedure (Appealed) on 12"‘ th day of January, 2015.
/s/donovan paul dudinsky ___________________________ Donovan Paul Dudinsky Donovan
Appellant’s Brief
CERTIFICATE OF
XIII. CERTIFICATE COMPLIANCE OF COMPLIANCE document contains 11,116
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11,116 words document was font. I certify that this document Word Perfect X6, and according was prepared with Word
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/s/donovan paul dudinsky donovan ___________________________ Donovan Paul Dudinsky Donovan
Appe11ant’s Brief Appellant’s
APPENDIX XIV. APPENDIX XIV.
APPENDIX “A” APPENDIX “A” From Illegal Detention
Motion to Suppress (Evidence Obtained From Motion
Impoundment and Inventory). and Illegal Impoundment
APPENDIX “B” Judgement of Conviction by APPENDIX “B” by Court APPENDIX “C” Trial Court’s Certification APPENDIX “C” of Appeal
Certification of Defendant’s Right of APPENDIX “D” Defendant’s Written Notice of Appeal APPENDIX “D” Appeal APPENDIX “E” APPENDIX “E” of
Defense Exhibits 2, 3, and 4 Photographs of Intersection of Alleged Traffic Violation
Appellant’s Brief APPENDIX “A”
IN THE 273"’ JUDICIAL DISTRICT COURT OF . FILED
SAN AUGUSTINE COUNTY, TEXAS -
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STATE OF TEXAS
.4
Clerk JEAN STEPTOE District SAN AUGUST‘ TEXAS
THE STATE OF TEXAS § or W.“
VS. § Cause No. CR-13-8411
Cause No. CR-11-8412 ROBERT EUGENE PRITCHETT §
MOTION To SUPPRESS (Evidence Obtained From Illegal Detention and Illegal Impoundment and Inventory) TO THE HONORABLE JUDGE OF SAID COURT:
Now Comes Defendant, Robert Eugene Pritchett respectfully moving the Honorable Court to suppress and exclude illegally obtained evidence pursuant to an unlawful detention and illegal impoundment and inventory Search of Defendant’s vehicle in violation of the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Constitution of the State of Texas, and Article 38.23 of the Texas Code of Criminal Procedure.
Statement of Facts In the early evening of Thanksgiving November 24, 2011, Defendant’s vehicle was observed on a public roadway by a passing police officer. The police officer began pursuit and followed Defendanfs vehicle for half-mile. The police officer stopped the Defendant two blocks from Defendant’s residence for fail to stop at a designated point at stop sign. Upon his approach to Defendant’s vehicle, police officer who knew Defendant, knew his place of residence, knew that Defendant’s place of employment was a local law firm, asked Defendant for Defendant’s driver’s license that Defendant did not have on his person at the time, then asked Defendant for consent to Search Defendant’s vehicle. Defendant not consenting to search, was asked to exit his vehicle,
Page 1.
©@l?@Y at which time, police officer then asked Defendant to open his mouth into which police officer shined a flashlight. A second police officer showed up and approached Defendant for purpose of detecting some suspicious odor and detecting none told the first police officer to arrest Defendant for not having his driver’s license on his person. Defendant’s hands were handcuffed behind his back. Defendant then being secured was placed inside first police offlcer’s patrol car.
Defendant’s employer (lawyer) and owner of Defendant’s vehicle that Defendant drove for business and personal use pursuant owner’s permission, nevertheless, owner of vehicle arrived at the scene of detention. The police officers nevertheless seized, impounded, and conducted an inventory of said vehicle, during which claiming discovery of a trace or a smear of cocaine in the inside of the door pocket/panel of open driver’s side door.
Agggment and Authorities
I.
Roadside detention of Defendant’s motor vehicle was in violation of Transportation Code section 544.010 that governs operator stopping procedure when approaching Stop Signs and Yield Signs, to wit: (a) “unless directed to proceed by a police officer or traffic-control signal, the operator of a vehicle or streetcar approaching an intersection with a stop sign shall
“ stop as provided by Subsection ( c )”. ( c ) An operator required to stop by this section shall stop before entering the crosswalk on the near side of the intersection. In the absence of a cross- walk, the operator shall stop at a clearly marked stop line. In the absence of a stop line, the operator shall stop at the place nearest the intersecting roadway where the operator has a View of approaching traffic on the intersecting roadway”.
Page 2.
The officer who conducted the roadside detention, impoundment and inventory search of Defendant’s vehicle issued a warning citation on the basis that Defendant Failed to Stop at a Designated Point at Stop Sign. Defendant was subsequently arrested and issued citation for Fail to Display DL. However, The erroneous day/date/time of Contact appearing at the top of citation regarding warning for failed to stop at a designated point at stop sign and arrest/ citation for failure to display driver’s license is dated: 11/25/2011 3:22 AM.. Showing not that the encounter had though factually taken place in the early evening of November 24, 201 1, but shows the encounter took place on the following morning of November 25, 2011
@ 3:22 am. The Defendant’s vehicle was observed by a police officer being on a public roadway. The police officer had not observed a crime having been committed nor did said officer observe a crime in progress. The police officer pursued and follow Defendant’s vehicle for one-half mile. A hunch, suspicion, or good faith perception is not enough alone to satisfy the probable cause burden. St11ll v. State, 772 S.W.2d 449 (Tex.Cr.App. 1989). The events perceived by the police officer must be out of the ordinary, suspicious and tie a suspect with a criminal act. _S_tfi
The Defendant was pulled over and subjected to roadside detention. A person is seized for constitutional purposes, when under all of the circumstances, a reasonable person would believe that he is not free to leave. Nottingham v. State, 908 S.W.2d 5 85 (Tex.App.— Austin 1995).
Incident to the initial roadside detention, the Defendant was arrested without warrant for not having his drivers license on his person, handcuffed, and Defendant was placed inside a patrol car. An arrest occurs when a person’s liberty or movement is restricted or restrained. Arnores v. §t_at_e, 816 S.W. 2d 417 (Tex.Cr.App. 1991). The police searched Defendant’s vehicle incident to Defendant’s arrest. In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed. 2d 485, A.L.R.
Page 3 Fed. 2d 657 (2009) the Court adopted a two-pronged approach: “Police may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it reasonable to believe that the vehicle contains evidence of the offense of arrest.” Defendant was secured in patrol car and therein was unable to reach the passenger compartment of his vehicle, and the vehicle did not contain evidence of the crime of not having his drivers license. “The Defendant was arrested for having a suspended license; there were no reasonable grounds, reasonable suspicion, or probable cause to suspect that evidence of license suspension would be found in the vehicle.” §a_n_t_.
Following the placement of Defendant in the patrol car, the police officers impounded Defendant’s vehicle and conducted an inventory search of Defendant’s vehicle at the scene of detention. Impoundrnent and inventory search legal only if no alternative to impoundment. Backer v. State, 656 S.W.2d 463 (Tex.Cn'm.App. 1983). Inventory search on traffic arrest is illegal if vehicle parked lawfully at time and no need to take it into custody. Fenton v. State, 785 S.W.2d 443 (Tex. App.— Austin 1990, no pet.)
Defendant’s vehicle was lawfully parked on a residential roadway near its roadside curb. Defendant’ s vehicle was not parked in a no parking zone. Defendant’s lawfully parked vehicle did not impede traffic. Defendant’s vehicle had not been abandoned or immobilized. Defendant’s vehicle was lawfully parked two blocks away from Defendant’s residence where Defendant’s wife resided and was available to take possession of and safeguard Defendant’s vehicle. Defendant’s arrest for traffic violation would have required Defendant to be transported to jail and following procedure would have been in a short time (was released on personal recognizance) released and could have returned to the vehicle to take possession of and
Page 4 safeguard vehicle. Defendant’s vehicle was not stolen. Defendanfs lawyer, employer, and owner of vehicle who gave Defendant permission to drive vehicle for business and personal use was available at the scene and time of detention to take possession of vehicle. Defendant’s vehicle was not seized as evidence being connected to a crime. There was no reasonable connection between the arrest and the vehicle.
An automobile may be impounded if the driver is removed from his automobile and placed under custodial arrest and no other alternatives are available to insure the protection of the vehicle. Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.l978).
“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035, 29 L.Ed. 564 (1971). Because judicially sanctioned inventory search of automobile is dilution of Fourth Amendment right to be secure against unreasonable searches and seizures, impoundment and search must be carefully examined and narrowly confined in each case. Rodriguez v. State, 641 S.W.2d 955 (Tex. App.— Amarillo 1982). Irnpoundment improper . . .no showing car illegally parked. RodrigL_1ez.
In the leading Texas case, Benavides v. State, 600 S.W. 2d 809 (Tex.Crim.App. 1980) the court of Criminal Appeals indicated irnpoundment would be likely be permissible in the following situations:
1. To remove a vehicle from an accident scene. Defendant’s vehicle was not involved in an accident.
2. To remove a vehicle parked in violation of regulations. Defendant’s vehicle was not parked in violation of regulations.
3. The owner or driver requested or consents. Neither owner or driver requested or consented.
4. Officer reasonably believes vehicle is stolen. Vehicle not stolen.
Page 5 5. The vehicle is abandoned. The vehicle was not abandoned.
6. The vehicle is a hazard. The vehicle was not a hazard impeding traffic flow. 7. The vehicle is so mechanically defective that it creates a danger to others using the highway. The vehicle was not mechanically defective.
8. A statute authorizes impoundment. No applicable statute authorizing impoundment. 9. The driver is arrested for being intoxicated while in the vehicle and no other person is available to drive the vehicle or otherwise safeguard it. The driver was not arrested for being intoxicated, and other persons were available to drive the vehicle and safeguard the vehicle. 10. “If the driver is removed from his automobile and placed under arrest and no other alternatives are available other than impoundment to insure the protection of the vehicle.” Other alternatives were available other than impoundment to insure the protection of the vehicle. Benavidas
WHEREFORE, said Defendant prays that hearing be had hereon and that upon hearing hereof that this Court judicially find and determine that said detention and seizure was without warrant and impoundment unreasonable in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States and Article 1, Section 9 of the Constitution of Texas, that the substance seized and taken from said vehicle of the Defendant at said time be suppressed and excluded from evidence in this case pursuant to Section 38.23 (a) of the Texas Code of Criminal Procedure and the,State of Texas and its agents prosecuting this case be ordered to refrain from offering in evidence or producing in the presence of the jury on the trial of this case and substance claimed by the State to be trace/smear cocaine and from asking any question of either of said police officers as to the presence of said substance in said vehicle at said time and place.
~onovan aul Dudinsky Counsel for Defendant ~~ +
A .. Ll-, SWORN TO AND SUBSCRIBED BEFORE ME by Donovan Paul Dudinsky onkiiiiya-i-, 2014, who being one and same acknowledged by his signature in my presence to which signature have placed my hand and seal of office.
~
Notary Public, State of Texas
~ ~~ JANICE
Nmaw Public,
K. MILLER sxme 01‘ mos
My Commission Expires Page 6
San Augustine Counbf’ Texas My Commission Expires. le — t2 A 1
. .
_ Ocvooec 22. 2017
ORDER The above Motion to Suppress Evidence Obtained From Illegal Detention and Illegal
~ Impoundment and Inventory was duly filed, presented, and heard at the time and manner required by law and the Court having duly considered same, finds that said Motion should be and is hereby Granted Denied , to which ruling Defense duly excepts and respectfully requests hereby that the Court file written findings its of fact and conclusions of law.
PRESIDING IUDGE
15' and 273“ Judicial Districts APPENDIX “B”
IN THE DISTRICT COURT OF SAN AUGUSTINE COUNTY
STATE OF TEXAS THE STATE OF TEXAS § VS. § CAUSE NO. CR-13-8411 ROBERT EUGENE PRITCHETT Incident State
No./TRN: 915386994X ID No.: 04876899
§ ,q/ 5
5['L""‘C
1 "20 JEAH STE.’-‘TOE D-fgjrjci
~~ A rk JUDGMENT OF CONVICTION BY COURT; :9” f~UG“d§“tr§:, T
COMMUNITY SUPERVISION 5 Judge Presiding: Charles R. Mitchell Date of Judgment: September 10. 2014 Attorney for Attorney for the State: J. Kevin Dutton Defendant: Donovan Dudinsky Offense convicted of: Possession of Controlled Substance Drug Free Zone 8481.115 481.134 HSC Degree: Third Date of Offense: November 24. 2011 Applicable punishment range (including enhancements, if any): 2 years to 10 years TDCJ ID Charging Instrument: Indictment Plea: Not Guilty Jury Verdict: Guilty Terms of Plea Five (5) years confinement in the Texas Department of Criminal Justice Institutional Division Bargain: probated for five (5) years; a fine in the amount of $3000.00 not probated: restitution as stated below.
Verdict for Offense: Guilty Plea to Enhancement Finding on Finding on Paragraph(s): N/A Enhancement: N/A Deadly Weapon: N/A Finding of Finding of Family Violence: N/A Bias or Prejudice: N/A Date Sentence Court Imposed: September 10. 2014 Costs: $339.00 Punishment and Place Date to of Confinement: 5 years TDCJ ID Commence: September 10, 2014 probated for 5 years; Fine of $3000.00 Time Credited: Total amount of
Restitution/Reparation: $140.00 Name & address for Restitution: DPS Lab Victim Impact Statement Returned:
On the 4m day of August, 2014, the above numbered and entitled cause was called for trial, and the State appeared by the attorney stated above, and the Defendant and the Defendm1t’s attorney, as stated above, were also present. Thereupon both sides armounced ready for trial. A jury of twelve persons was duly selected, impaneled and sworn. The Defendant entered the above plea to the charging instrument afier reading thereof. Having heard the indictment read, and the defendant’s plea of not guilty thereto, the case proceeded to trial before the jury and after conclusion of the case and the jury having all the evidence submitted, the jury was duly charged by the Court and the Jury retired in charge of the proper officer to consider their verdict. The Jury after having reached a verdict in the guilt and innocence stage was brought into open Court by the proper officer in the presence of the defendant and his counsel. The Jury in open Court and in due form announced that it had reached a verdict, which verdict was received by the Court and pronounced in open Court and entered into the minutes of the Court as follows, to-wit:
“VERDICT FORM #1 WE, the Jury, find the Defendant, ROBERT EUGENE PRITCHETT, guilty of the offense of possession of a controlled substance, as charged in the indictment.
/s/ Rickey Smith Presiding Juror”
And thereupon, the Defendant elected to have his punishment assessed by the Court. And thereupon the Court ordered a pre-sentence investigation to be done. It is therefore ORDERED, ADJ UDGED and DECREED by the Court that the defendant is guilty of the offense stated above, that there is an affirmative finding of a drug free zone, and that punishment has been sent by confinement in the Texas Department of Criminal Justice Institutional Division for five (5) years. It is, therefore, ORDERED by the Court that the imposition of the sentence in this case is hereby suspended. The Defendant is placed on community supervision for five (5) years, subject to the conditions of supervision imposed by the Court in an order that is hereby incorporated into this judgment.
It is therefore ORDERED, ADJUDGED and DECREED by the Court that the defendant is guilty of the offense of possession of a controlled substance drug free zone and that punishment be fixed and assessed as set forth above, and the State of Texas recover of said Defendant all court costs in this prosecution expended, for which execution will issue.
Furthermore, the following special findings or orders apply: none.
/A/z//
Jddge Presiding Date Signed: 74 /( Z V/ff
S‘ Defendant’s right thumbprint:
APPENDIX “C”
CAUSE N0. CR-8411 THE STATE OF TEXAS § IN THE 273“ JUDICIAL DISTRICT
§ VS. § COURT OF
§ ROBERT EUGENE PRITCHETT § SAN AUGUSTINE COUNTY, TEXAS
TRIAL COURT’S CERTIFICATION OF DEFENDANT’S RIGHT OF APPEAL L
1, Judge of the trial court, certify this criminal case: is not a plea-bargain case, and the Defendant has the light of appeal; (or) is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, the Defendant has the right to appeal; (or) is a plea-bargain case, but the trial court has given permission to appeal, and the Defendant has the right to appeal; (or) is a plea-bargain case, and the Defendant has NO right to appeal; (or) is a deferred adjudication case, and the Defendant has a limited right to appeal; (or) the Defendant has waived the right to appeal. -
E PRESID f- /p r 2 o /«-r DATE SIGNED
I acknowledge that I have been informed of the above Certification court and by the Irial waive a receipt of a copy thereof.
DEFENDANT ~
J El LED ~ AS?/1»? bo'owcK:"'g_ M
Q -/‘Q 29 /( JEAN STEPTOE Dlsiict lerk SAN AU ,1 ,TEXAS av ..___/
/ APPENDIX “D”
CAUSE NO. CR-8411 THE STATE or TEXAS § IN THE 273“ JUDICIAL DISTRICT vs. § COURT or ROBERT EUGENE PRITCHETI‘ 45 SAN AUGUSTINE COUNTY, TEXAS
WRITTEN NOTICE or APPEAL TO THE HONORABLE JUDGE or SAID COURT:
Now Comes Robert Eugene Pritchett, Appellant in the above styled and numbered cause, on this 7"‘ day of October, 2014, and Appellant timely files this his written notice of appeal with said Court. Appellants’s sentence and fine was imposed on the 10"‘ day of September, 2014. Appellant files this his written notice of appeal within thirty (30) days of sentence being imposed and pursuant to Vemon’s Ann. Rules App. Proc. Rule 26.2 (a)(1) and Appellant files this his written notice of appeal based upon Appellant having been convicted by jury of Possession of a Controlled Substance in a Drug Free Zone and Appellant was sentenced to serve five (5) years regular probation and assessed a fine amount of Three Thousand Dollars
- 12"‘ Court of Appeals the trial couIt’s judgment in
($3,000.00). Appellant desires to appeal to the this criminal conviction litigation.
WHEREFORE PREMISES CONSIDERED, Appellant respectfully requests that Appe1lant’s Written Notice of Appeal be entered of record on this date. Entered by Appellant’s Attorney on thisl"'_day of October, 2014.
Respectfully submitted, onovan aul Dudinsky
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Attorney for Appellant,
:F_j__ IAN STE!-":'OE
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Céstnct rk Robert Eugene pl-itchett ass‘! IUSUSTJQEC
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CER HHCAIE OF SERVICE
Hereby certified that a true and correct file—stamped copy of the original document having been filed and thereby become dully recorded has heen personally served by hand on this day of October 7, 2014, to the oflice of the District Attorney located in the 273'“ Judicial District Courthouse of San Augustine County, Texas, San Augustine, Texas 75972.
Donovan §aul guééigky J,/3 APPENDIX “E”
Case-law data current through September 30, 2026. Source: CourtListener bulk data.