No. 05-10-00970-CR n.,.: " 1 ~ 12 Pi1 3: 25 IN THE COURT OF APPEALS USA iv1. 1 Z, CLERK FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS ANDREW COLE HELLER Appellant Vs. STATE OF TEXAS, Appellee On appeal from the County Court at Law No. 4 Of Dallas County, Texas The Honorable Teresa Tolle, Judge Presiding Cause No. MB08-60588-E AMENDED APPELLANT'S BRIEF Counsel of Record: JERRY D. KELLY STATE BAR NO. 11221500 4514 COLE A VENUE, SUITE 600 DALLAS, TX 75205 214-522-7700 214-559-7122 ATTORNEY FOR APPELLANT 5th Court of Appeals FILED: 3/22/11 14:00 Lisa Matz, Clerk
PARTIES TO THE IDDGEMENT: IDENTITY OF PARTIES AND COUNSEL APPELLANT: APPELLEE: PRESIDING illdge: ANDREW COLE HELLER 13503 PUEBLO RUN SAN ANTONIO, TX 78232 CRAIG WATKINS, DALLAS COUNTY DISTRICT ATTORNEY 133 N. RIVERFRONT DRIVE DALLAS, TEXAS 75207 HONORABLE TERESA TOLLE DEFENSE TRIAL COUNSEL: TRIAL PROSECUTORS: APPELLATE COUNSEL: JERRY KELLY 4514 COLE AVE. SUITE 600 DALLAS, TEXAS 75205 JACOB HARRIS ASSIST ANT DISTRICT ATTORNEY JERRY KELLY 4514 COLE AVE. SUITE 600 DALLAS, TEXAS 75205 1
TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL....i TABLE OF CONTENTS....ii, iii INDEX OF AUTHORITIES....iv STATEMENT OF THE CASE... 1 ISSUES PRESENTED... 1, 2 ISSUE NO. ONE OFFICER NASH LACKED REASONABLE SUSPICION TO BELIEVE THAT HELLER DID NOT SIGNAL CONTINUOUSLY FOR NOT LESS THAN THE LAST 100 FEET OF MOVEMENT OF THE VEHICLE BEFORE THE TURN, IN VIOLATION OF TRCP 545.104(b) ISSUE NO. TWO WHETHER OR NOT THE STATUTE THAT HELLER WAS ACCUSED OF VIOLATING WAS SO VAGUE THAT NO REASONABLE PERSON COULD UNDERSTAND WHAT HE WAS BEING CHARGED WITH UNDER THE U.S. SUPREME COURT STANDARD OF VAGUENESS. ISSUE NO. THREE WHETHER OR NOT THE COURT PROPERLY FILED ITS FINDINGS OF FACT AND CONCLUSION OF LAW REQUESTED BY THE DEFENDANT AND MADE MANDATORY UNDER THE CULLEN v. STATE RULING. ISSUE NO. FOUR OFFICER NASH LACKED REASONABLE SUSPICION TO BELIEVE THAT HELLER MADE A WIDE TURN IN VIOLATION OF SECTION 545.101(d) STATEMENTOFTHEFACTS... 2 SUMMARY OF THE ARGUMENT... 2 ISSUE NO. ONE, RESTATED... 3 ISSUE NO. TWO, RESTATED... 3 11.
ISSUE THREE, RESTATED... 4 ISSUE FOUR, RESTATED... 6 PRAYER... 6 CERTIFICATE OF SERVICE... 7 111.
INDEX OF UTHORITIES CASES PAGE Cullen v. State 195 S.W.3rd 696 (Tex. Crim. App. 2009)... 5 Ford vs. State 158 S.W. 3rd 488 (Tex. Crim. App. 2005)... 1, 2 Papachritou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.ed. 2 210 (1972)....4 STATUTES Tex. Trans. Code Ann. 545.104(b)... 2. Tex. Trans. Code Ann. Sec. 454.101(d)... 3 IV.
TO THE HONORABLE COURT OF APPEALS: COMES NOW, ANDREW COLE HELLER, Appellant, and respectfully submits this brief urging error from a conviction for the offense of driving while intoxicated. STATEMENT OF THE CASE Heller was charged by affidavit and information with the misdemeanor offense of driving while intoxicated, a violation of TEX. PEN. CODE ANN. & 49.04 (Vernon 1995). Defendant filed a motion to suppress which the Court denied. A motion for new trial to reconsider the motion to suppress was filed and was denied. On May 3, 2010, after the denial of the motion for new trial, the Defendant pled guilty. Punishment was assessed for 90 days in jail, 15 months' probation and a $600 fine. Notice of appeal of the suppression hearing only was timely filed. In addition, the docketing statement should be amended stating that this appeal also involved the validity of two statutes-trcp 545.104(b) and TRCP 545.101(d). This amended brief in regard to TRCP 38.1(d) should be proper because this section states that this section should seldom exceed one-half page and should not discuss the facts. ISSUE NO. ONE OFFICER NASH LACKED REASONABLE SUSPICION TO BELIEVE THAT HELLER DID NOT SIGNAL CONTINUOUSLY FOR NOT LESS THAN THE LAST 100 FEET OF MOVEMENT OF THE VEHICLE BEFORE THE TURN, IN VIOLATION OF TRCP 545.104(b) ISSUE NO. TWO WHETHER OR NOT THE COURT PROPERLY FILED ITS FINDINGS OFF ACT AND CONCLUSION OF LAW REQUESTED BY THE DEFENDANT AND MADE MANDATORY UNDER THE CULLEN v. STATE RULING. 1
ISSUE NO. THREE OFFICER NASH LACKED REASONABLE SUSPICION TO BELIEVE THAT HELLER MADE A WIDE TURN IN VIOLATION OF SEC. 545.101(d) OF THE TEXAS TRANSPORTATION CODE. THIS SECTION REQUIRES THAT THE OPERATOR OF A VEHICLE TURNING LEFT AT AN INTERSECTION WHEN BOTH ROADWAYS ARE ONE-WAY THE OPERATOR IS REQUIRED TO TURN AS CLOSE AS PRACTICABLE TO THE LEFT HAND CURB ISSUE NO. FOUR WHETHER OR NOT THE STATUTE THAT HELLER WAS ACCUSED OF VIOLATING WAS SO VAGUE THAT NO REASONABLE PERSON COULD UNDERSTAND WHAT HE WAS BEING CHARGED WITH UNDER THE U.S. SUPREME COURT STANDARD OF VAGUENESS. STATEMENT OF FACTS The Order by this Court requires that the Defendant comply with Tex. R. App. P. 38.1(f). This section requires a concise statement of the facts supported by record references. A brief concise statement without argument in issue number one is based on the testimony of Officer Nash, who testified that Heller violated 545.104(b) of the Texas Transportation Code, requiring that he signal a tum prior to 100 feet from the intersection. Testimony of Officer Nash- Issue One- Officer Nash testified that Heller violated Sec. 545.104(b) of the Texas Transportation Code requiring that he signal a turn prior to 100 feet from the intersection. SUMMARY OF THE ARGUMENT The State did not put on any testimony that Heller intended to turn left prior to 100 feet of the intersection in violation of the standard required by Ford v. State, 158 S.W.3d 488, (Tex. Crim. 2
App.) which requires that the State prove each and every element of the statute, which of course the officer did not meet this standard. In fact he clearly admits that without the knowledge of intent that he did not know whether there was a violation or not. ISSUE ONE RESTATED Officer Nash lacked reasonable suspicion to believe that Heller did not signal continuously for not less than the last 100 feet of movement of the vehicle before the turn, in violation of TRCP 545.104(b ). ARGUMENTS AND AUTHORITY Section 545.104(b) ofthe Texas Transportation Code reads as follows: "an operator intending to turn a vehicle right or left should signal continuously for not less than the last 100 feet of movement of the vehicle before the turn." The State never proved that Heller violated the specifics and all the elements of the statute because officer Nash admitted that he did not know the intent of Heller. Therefore, Nash admits that because he did not know the intent, then Nash did not know whether there was a traffic violation or not. (RR P.13, L. 7-22) Nash further admits that Heller signaled when he changed lanes prior to the intersection. (RR P. 6, L. 17-22) Application to the Instant Case Ford v. State, 158 SW3rd 488 requires that the State prove with articulate and specific facts a violation of all the elements of the particular violation alleged to have occurred as justification for the stop. Because the officer admits that he cannot determine one of the elements (intent), then the Court should grant that issue in favor of the Defendant based upon the Ford standard of proof. ISSUE TWO RESTATED Officer Nash lacked reasonable suspicion to believe that Heller made a wide turn in violation of Sec. 454.101(d) ofthe Texas Transportation Code. This section requires that the operator of a vehicle turning left at an intersection when both roadways are one-way the operator is required to turn as close as practicable to the left-hand curb. ARGUMENTS AND AUTHORITY Section 454.101(d) reads as follows: "to turn left, an operator who is approaching an intersection having a roadway designated for one-way traffic and for which signs are posted shall 3
make the turn as closely as practicable to the left-hand curb or edge of the roadway." Officer Nash testified that Heller made a wide tum in violation of section 545.101(d) of the Texas Transportation Code. He based that testimony on the fact that Heller did not first turn totally in the left lane closest to the curb. (RR P.6 L. 25) Officer Nash admits that he did not know the full definition of this statute, and now admits that the turn can be made in a practicable manner which does not necessarily mean the immediate left lane as previously testified. (RR. P. 6 L.15-21) In fact, Officer Nash admits that the video clearly shows that after turning left, Heller had to make an immediate right turn, thus necessitating that he not tum into the immediate left lane but in fact had to cross lanes of traffic after determining that it was safe to do so and more practicable than to have to turn left immediately and then make an immediate right turn in the middle of the roadway which would have been much more dangerous than the way Heller actually turned. Therefore, it could easily be concluded that it was much more practicable that Heller did not violate the wide-tum statute and, in fact, based upon his own testimony it would be more practicable to proceed as he did and as shown on the video. In conclusion therefore, the issue of wide turn should be ruled in favor of Heller. ISSUE THREE RESTATED Whether or not the statute that Heller was accused of violating was so vague that no reasonable person should understand what he was being charged with under the U.S. Supreme Court standard of vagueness. ARGUMENTS AND AUTHORITIES Both in issue number two and three there is a serious problem of the vagueness issue requiring the statute which states that a conviction is void because the statute upon which the prosecution is based is unconstitutional in that it is vague and indefinite. Papachritou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.ed. 2 210 (1972). This case states that in cases that the statutes are so encumbered to the point that an ordinary intelligent person could not possibly 4
understand. In regard to issue one requiring an operator to signal continuously for 100 feet prior to a turn at an intersection, totally cannot be intelligently understood by the ordinary intelligent person in that there are hundreds of streets in Dallas which you cannot possibly turn within 100 feet because the area traveled itself is not 100 feet long. The statute gives no help to the citizen as to what that party is to do under those circumstances. Most statutes in the Transportation Code add an additional element to the offense to allow the citizen a reasonable alternative to their action when it is impossible to comply with that statute. For example, the Transportation Code allows a person to change lanes legally and not stay in a single lane of traffic as long as they can do it with safety. This alternative is not allowed in the statute cited above. In addition, under the new law allowing photographic enforcement of red light cases, the statute requires that there be a sign properly placed and legible so that the citizen can be warned that the sign is located 100 feet prior to the intersection. Again, no such alternative is afforded the citizen in the above statute. Lastly, the statute also does not give warning when a signal must be used prior to 100 feet. There is no such requirement in this statute and, therefore, the citizen is totally confused as to when he is to begin the process of signaling. In regard to issue three and the wide tum violation, there is a similar argument to be made in regard to its enforcement because of its vagueness. This statute clearly states that you do not have to tum into the lane nearest the curb when it is not practicable to do so. However, as is present in many statutes in the Transportation Code, they outline by definition words that are in the statute and a necessary part of the violation, but gives no guidelines or definitions to allow the citizen as reasonable guideline to not violate this wide turn statute. For example, in the Transportation Code under the no seat belt law, it requires that a party be secured by the seat belt. However again this statute prevents any vagueness in prosecution of this statute because of 5
vagueness by defining exactly what the work "secured" means. Obviously in the statute in this case there is no such definition given by the legislature under this section of the Transportation Code, thereby guaranteeing that an ordinary intelligent person could not understand the statutes in question. Therefore these statutes should be declared void for the reasons stated above as an alternative to the arguments already presented above in issues one and two. The issue in number three should be granted in favor of the Defendant. ISSUE FOUR RESTATED Whether or not the Court properly filed its fmdings of fact and conclusion of law requested by the Defendant and made mandatory under the Cullen v. State ruling. ARGUMENTS AND AUTHORITY Cullen v. State, 195 S.W.3rd 696 (Tex. Crim. App.) makes it mandatory that the judge submit a findings of fact and conclusion of law document to the losing party in a suppression hearing upon the request by said party. I have in my files a copy of such a request, but it is not dated, nor do I fmd it in the Court's record. However, we are continuing to explore the possibility that it exists and will immediately notify the Court of its latest status. The Court will please note that the reporter's record did not record the arguments by counsel when the record was transcribed. It is important that your Court have this information available to them because part of my arguments that I made to the Court were based upon arguments made in court which were not recorded, but required by law. It is also my understanding that the State has now submitted a new brief which, before your court makes its fmal decision, it is requested that I be allowed additional time to rebut the State's brief. 6
PRAYER WHEREFORE, PREMISES CONSIDERED, that this conviction be reversed and a finding of not guilty be entered or be remanded for a new trial. Yi KELLY TE BAR NO. 11221500 45 4 COLE A VENUE, SUITE DALLAS, TEXAS 75205 214-522-7700 214-559-7122 (fax) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief has been served on Craig Watkins, 133 N. Riverfront, Dallas, Texas by depositing in the United Sta mail~ost e pre, aid; o y hand delivery or by fax on '/7Ft-._ cl( ~011. _'t:::) r Jerry. e 7