Elizabeth Ann Black v. State

ACCEPTED 03-15-00065-CR

6161368 THIRD COURT OF APPEALS

AUSTIN, TEXAS 7/21/2015 3:21:27 PM

JEFFREY D. KYLE

CLERK

NO. 03-15-00065-CR

__________________________________________________________________

FILED IN 3rd COURT OF APPEALS

IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS

THIRD SUPREME JUDICIAL DISTRICT7/21/2015 3:21:27 PM

AUSTIN, TEXAS JEFFREY D. KYLE

Clerk __________________________________________________________________

ELIZABETH ANN BLACK, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

__________________________________________________________________

ON APPEAL FROM COUNTY COURT-AT-LAW NUMBER FIVE

TRAVIS COUNTY, TEXAS CAUSE NO. C1-CR-13-217530

__________________________________________________________________

APPELLANT’S REPLY BRIEF __________________________________________________________________

MERIL “GENE” ANTHES, JR. State Bar No. 24040125 [email protected] CHRISTOPHER M. GUNTER State Bar No. 08624600 [email protected] GUNTER, BENNETT & ANTHES, P.C. 600 West Ninth Street Austin, Texas 78701-2212 (512) 476-2494 (512) 476-2497 Facsimile Attorneys for Appellant

__________________________________________________________________

ORAL ARGUMENT IS REQUESTED __________________________________________________________________

IDENTITY OF PARTIES AND COUNSEL 1. Appellant: Elizabeth Ann Black 2. Appellee: The State of Texas 3. Trial counsel for Appellant: Christopher M. Gunter and

Meril “Gene” Anthes, Jr. Gunter, Bennett & Anthes, P.C. 600 West Ninth Street Austin, Texas 78701

4. Trial counsel for the State: Christyne Harris Schultz

Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, Texas 78767

5. Counsel on appeal for Appellant: Meril “Gene” Anthes, Jr. and

Christopher M. Gunter Gunter, Bennett & Anthes, P.C. 600 West Ninth Street Austin, Texas 78701

6. Counsel on appeal for the State: Giselle Horton

Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, Texas 78767

7. Trial Judge: The Honorable Nancy Hohengarten

County Court-at-Law No. Five Travis County, Texas Blackwell/Thurman Criminal Justice Center 509 West 11th, 4th Floor Austin, Texas 78701 i

TABLE OF CONTENTS

PAGE IDENTITY OF PARTIES AND COUNSEL ......................................................... i TABLE OF CONTENTS ........................................................................................ ii INDEX OF AUTHORITIES................................................................................... iii ARGUMENT .......................................................................................................... 1 PRAYER ................................................................................................................. 3 CERTIFICATE OF COMPLIANCE ...................................................................... 5 CERTIFICATE OF SERVICE ............................................................................... 5 ii

INDEX OF AUTHORITIES

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

NO. 03-15-00065-CR

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT

AUSTIN, TEXAS __________________________________________________________________

ELIZABETH ANN BLACK, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

__________________________________________________________________

ON APPEAL FROM COUNTY COURT-AT-LAW NUMBER FIVE

TRAVIS COUNTY, TEXAS CAUSE NO. C1-CR-13-217530

__________________________________________________________________

APPELLANT’S REPLY BRIEF __________________________________________________________________ TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

COMES NOW Appellant Elizabeth Ann Black, by and through her undersigned counsel, and offers Appellant’s Reply Brief, by which Appellant respectfully shows the Court the following:

ARGUMENT

The State improperly argues that statements made by Appellant after she was stopped by Officer Dominguez can be used to justify the stop. State’s Brief 3, 4, 8. A detention is either good or bad at the moment it starts. State v. Duran, 396 S.W. 3d 563, 569-570 (Tex. Crim. App. 2013). Information that the officer either acquired or noticed after a detention or arrest cannot be considered in determining whether an officer had reasonable suspicion to believe a crime had been committed or was being committed. Id. at 569.

It should be noted that in addition to improperly arguing post-detention statements by Appellant to justify the stop the state misrepresents what Appellant actually told the officer. For instance, the State asserts, “Black told Rodriguez that she had seen the barricade but was trying to get home.” State’s Brief at 3. The videotape, however, makes clear that Appellant told him the opposite, that she didn’t see a barricade.

(Officer Dominguez) Did you not see the barricade? (Appellant) No, sorry I live right over there. (Officer Dominguez) I don’t care where you live…you didn’t see the barricade? (Appellant) No, I did not.

3 RR State’s Exhibit #1 @ 3:00:30

In making Appellant’s statements the centerpiece of its argument, the State ignores the facts that demonstrate a lack of reasonable suspicion to believe Appellant was committing or had committed a crime:

 The lane in which Appellant was traveling was wide open. 1 RR 18-  There was no barricade in Appellant’s lane. 1 RR 18-19.  The police officer was parked behind a barricade in the adjacent lane to Appellant’s lane. 1 RR 8, 18-19.  The officer was not outside his vehicle directing drivers to stop as Appellant’s vehicle approached. 3 RR State’s Exhibit 1 @ 2:59:40. He was sitting in his vehicle until Appellant’s vehicle was virtually even with the officer’s car and he only yelled “Hey” as she drove past him. 3 RR State’s Exhibit 1 @ 2:59:42; 2 RR 9-10; 20.  The officer’s flashing overhead lights were not on as he sat behind the barricade. 2 RR 19-20.  A sign was present informing drivers such as Appellant that Barton Springs Rd. was to close at midnight Friday, 21 hours in the future. Nothing about the sign indicated the road was then closed. The sign read: “Barton Springs Rd. to close Friday 12 a.m. until Monday 3 a.m.” 2 RR 22-23.  Appellant did not ignore or fail to heed any sign.  Appellant did not go around or through any barricade; she simply drove past a barricade that was in the adjoining lane.

PRAYER

For the reasons set out above, Appellant respectfully prays this Court overrule the trial court’s ruling and order that Appellant’s motion to suppress be granted.

Respectfully submitted, ___________________________ MERIL “GENE” ANTHES, JR. State Bar No. 24040125 CHRISTOPHER M. GUNTER State Bar No. 08624600 GUNTER, BENNETT & ANTHES, P.C.

600 West Ninth Street Austin, Texas 78701-2212 (512) 476-2494 (512) 476-2497 Facsimile Attorneys for Appellant

CERTIFICATE OF COMPLIANCE I certify that this document was prepared with Microsoft Word, and that, according to that program’s word-count function, the sections covered by Texas Rule of Appellate Procedure 9.4(i) contain 492 words.

____________________________ MERIL “GENE” ANTHES, JR. CHRISTOPHER M. GUNTER

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellant’s Brief sent via certified mail to PO Box 1748, Austin, Texas 78767 to Giselle Horton, Assistant County Attorney, Travis County, P.O. Box 1748, Austin, Texas 78767, on this the 22nd day of July, 2015.

____________________________ MERIL “GENE” ANTHES, JR. CHRISTOPHER M. GUNTER

July 21, 2015 Honorable Jeffrey D. Kyle Via Electronic Delivery Clerk of the Court Austin Court of Appeals Price Daniel Sr. Building 209 West 14th Street, Room 101 Austin, Texas 78701

RE: The State of Texas vs. Elizabeth Black No. 03-15-00065-CR On Appeal from Travis County Court-at-law Number Five Cause No. C1CR-13-217530

Dear Mr. Kyle:

Enclosed for filing please find Appellant’s Reply Brief in the above-referenced cause. Thank you for your assistance in this matter. Please feel free to contact me should you have any questions.

Best regards, Gene Anthes cc: Giselle Horton

Assistant Travis County Attorney P.O. Box 1748 Austin, Texas 78767